 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Dixon6/3/2005
nts entered McDonald's house to execute a search warrant approximately 4 hours after prior surveillance of an incident at the house, McDonald's lawyer was there with him. The search produced no evidence. Although he admitted knowing of the counterfeiting scheme of Head and Burns, McDonald denied having any part in it. At trial the prosecutor elicited testimony about McDonald's lawyer being present during the search. In closing argument, after discussing evidence of activity around the house that would have indicated to McDonald that a search of his house was impending, the prosecutor described the agents' entry into the house: "'And who was there? The defendant's attorney.'" 620 F.2d at 562. The prosecutor continued: "'I suggest to you if Jimmy McDonald knew all this was going on, and had his lawyer out there three hours later, I believe that would be sufficient time to dispose of any ashes or any evidence, if you were so inclined.'" 620 F.2d at 562.
The government denied trying to impute guilt by referring to the lawyer's presence and argued that it showed McDonald had time to destroy evidence because he had time to summon his lawyer. Noting other evidence of time to destroy evidence, the court "conclude that the real purpose of the reference to the attorney's presence was to cause the jury to infer that McDonald was guilty. The reference therefore penalized McDonald for exercising his Sixth Amendment right to counsel." 620 F.2d at 564. The court added: "It is impermissible to attempt to prove a defendant's guilt by pointing ominously to the fact that he has sought the assistance of counsel." 620 F.2d at 564. With regard to the government's contention that the infringement of McDonald's right to counsel was harmless error, the Fifth Circuit Court of Appeals concluded that the constitutional right was so basic to a fair trial that the infraction could not be considered harmless error. 620 F.2d at 564. The court continued:
"Comments that penalize a defendant for the exercise of his right to counsel and that also strike at the core of his defense cannot be considered harmless error. The right to counsel is so basic to all other rights that it must be accorded very careful treatment. Obvious and insidious attacks on the exercise of this constitutional right are antithetical to the concept of a fair trial and are reversible error." (Emphasis added.) 620 F.2d at 564.
The italicized portion of the quote at the end of the preceding paragraph shows that the Fifth Circuit Court of Appeals will reverse a conviction on account of a prosecutor's questioning and comments only where they are directed at the defendant's essential story concerning the crime for which he or she is charged. Because the implication of the prosecutor's references to McDonald's attorney was "that McDonald had destroyed incriminating evidence" and that implication "struck at the jugular of the exculpatory story, the essence of which was that there was no evidence to destroy," the Fifth Circuit's second requirement for reversal was satisfied. See 620 F.2d at 563.
In United States v. Liddy, 509 F.2d 428, the defendant was convicted on charges relating to the burglary and wiretapping of offices of the Democratic National Committee (DNC) in the Watergate complex in the early morning hours of Saturday, June 17, 1972. Liddy was not among the men who were apprehended in the offices, but he was seen outside the building with Howard Hunt shortly after police arrived on the scene. At about 3 a.m. Hunt called an attorney, Caddy, and then went to see him. Caddy testified that Hunt arrived at Caddy's apartment at approximately 3:40 a.m. and arranged with him to secure experienced criminal counsel for the five men arrested
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|