Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal

The Supreme Court of Tennessee recently issued an opinion in Cyrus Deville Wilson vs. State of Tennessee, a case concerning whether a notation in the prosecutor’s file expressing her opinions to the lack of credibility of the State’s witnesses is newly discovered evidence which the defendant may base a petition for writ of error coram nobis (a legal writ issued by a court to correct a previous fundamental error to achieve justice where no other remedy is available).

In the case, Cyrus Deville Wilson was tried and convicted for first-degree murder and sentenced to life in prison. Key to the State’s case were two juvenile eyewitnesses.  Petitioner obtained the District Attorney’s file in this matter which contained handwritten notes wherein the prosecutor had written “good case but for most of [the witnesses] are juveniles who have already lied repeatedly.” Petitioner then filed a petition for writ of error coram nobis contending that this constituted exculpatory evidence that was withheld in violation of his constitutional rights and requested a new trial.  The coram nobis court dismissed the petition.

The Court of Appeals reversed the judgment of the trial court and remanded for an evidentiary hearing. The Court of Appeals held that the petition raises a possible ground for relief, but that numerous facts need to be established before the trial court can determine whether the petition has any merit. Therefore, without an evidentiary hearing there is not enough evidence on the record for the coram nobis court to determine whether the petition has any merit. The state appealed.

The Supreme Court held that the handwritten note expressing the prosecutor’s opinion as to witness credibility was attorney work product. As such it was neither discoverable nor admissible. Thus, the note ought not be deemed newly discovered error on which a petition for writ of error coram nobis could be based. The Court reversed the Court of Criminal Appeals and reinstated the judgment of the trial court.

To read a full version of the opinion click here.

Earlier:

Alarming Flaws in Forensic Analysis Revealed

Alarming Flaws in Forensic Analysis Revealed

by Janie Parks

The Washington Post reported earlier this week about potential flaws in forensic analysis by the FBI. In the early 1990's the Justice Department began a review of cases where the defendants were convicted in part because of forensic analysis in FBI crime labs. The review focused on cases involving one FBI agent in particular whose methods had been questioned in recent cases. According to the Post, the FBI was aware of its potential flaws in forensic evidence protocol across the agency, but decided to narrow its investigation to just those cases involving one agent. Over a span of 9 years, the investigation revealed hundreds of cases where the forensic evidence was either analyzed in a sloppy manner or was analyzed in the wrong manner by the FBI. The Post formed a task force to conduct its own investigation after obtaining thousands of files pursuant to the Freedom of Information Act. According to its findings, the FBI-led investigation found over 250 convictions in which the scientific review had been completed. What is most troubling about the task force investigation is that it revealed fewer than half of the defendants in the over 250 questionable convictions had been notified that their cases had been reviewed. According to the FBI, they were only obligated to inform the prosecutors of each case. Only about half the prosecutors disclosed the review to the defendants.

The Investigation conducted by the FBI has led to some exonerations of defendants, many of whom were serving life sentences. In fact, many have already served over 20 years. A truly unfortunate case involved Benjamin Boyle, a Texas man on death row. Boyle was executed in 1997, more than a year after the FBI began its review of the forensic evidence in his case. According to the Prosecution's memo, Boyle would not have been eligible for the death penalty without the forensic evidence presented against him. That same forensic evidence may have been poorly handled and could have potentially exonerated him.

What is particularly disturbing about this is the amount of cases they haven't reviewed. How many convicts were convicted due to forensic analysis? How was that forensic evidence analyzed? Two cases in the D. C. Superior Court at the moment were not reviewed by the FBI. However, in both cases, both defendants are seeking exonerations based on invalid hair and fiber analysis.

In the case of Santae Tribble, Tribble was convicted of murdering a taxicab driver in July 1978. Tribble became a suspect and was eventually arrested and charged with the murder. During the trial, an FBI forensic analyst testified that they recovered a stocking a block away from the crime scene with 13 hairs on it. According to the analyst, the hairs were matched to Tribble. After hearing that evidence, and despite the fact that Tribble had a solid alibi, the jury convicted Tribble of murder. He was sentenced to life, and is now on parole. In January, Tribble's attorney was able to have that evidence re-examined. According to the reexamination, none of the 13 hairs on the stocking matched Tribble's hair or shared his genetic profile. However, according to the analyst at trial, the hairs from the stocking matched Tribble's hair "in all microscopic characteristics." Upon re-examination, one of the hairs was found to have characteristics specific to the Caucasian race. Tribble is African American. Further, one of the 13 hairs was found to be of inhuman origin: it belonged to a dog. Needless to say, tribble filed a motion for exoneration and it is currently pending.

Kirk Odom was convicted of rape of a young woman in 1981. The victim identified Odom in a lineup, but later admitted at trial that it was very dark outside. The State presented evidence at trial of a hair found on the victim's nightgown. According to the FBI analyst, the hair found on the nightgown was "microscopically like" Odom's hair. He was convicted and is now out on parole. Again, in January, further tests on the evidence revealed that the DNA sample taken from the hair did not match Odom's DNA. He filed a motion for exoneration on March 14.

It bears repeating that each of these cases were not part of the FBI investigation.

So where do we go from here? I'd imagine it won't be too long before an agency-wide investigation of the FBI forensic analysts is commenced. If that investigation occurs, it will have some potentially shocking and disappointing results. We'll keep you updated.

Tennessee Child Rape Suspect Granted New Trial

• STATE OF TENNESSEE v. EMOE ZAKIAYA MOSI BAKAR

The Tennessee Court of Criminal Appeals has awarded child rape suspect Emoe Zakiaya Mosi Bakari a third trial, ruling that his conviction of attempted rape of a child must be overturned because of various prejudicial errors during Bakari’s second trial.

Bakari was indicted by a Davidson County grand jury in 2008 and was accused of raping an ex-girlfriend’s daughter and nephew in 2002 and 2003 while he lived with the family. Bakari allegedly told police the allegations were not true and stemmed from his ex-girlfriend’s “jealousy.”

Bakari was first tried in August 2009, but the jury could not reach a verdict and the court declared a mistrial. Bakari was tried again in December 2009, convicted of attempted rape of a child and sentenced to 12 years in prison.

On appeal, Bakari argued that Davidson County Criminal Judge J. Randall Wyatt Jr. erred by (1) allowing a State witness to testify about “delayed disclosure” in child sexual abuse cases; (2) allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation; (3) allowing the State to introduce a photograph of the victims into evidence; and (4) allowing the prosecutor during rebuttal closing argument to give personal examples in an attempt to vouch for the victims’ credibility.

For example, prosecutor Kristen Menke was allowed “to give personal examples in an attempt to vouch for the victims’ credibility,” stating in part that the children should not be expected to perfectly recall “something that happened half of their lifetime ago,” when she couldn’t remember every sexual encounter she’d had with her own husband in the past year.

The Court ultimately agreed with the defense, ruling that the trial court erred by allowing a witness to testify about “delayed disclosure,” by allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation, and by allowing the prosecutor to give personal examples in an attempt to vouch for the victims’ credibility. The Court concluded that the cumulative effect of the errors warrants reversal of the appellant’s conviction and remanded the case to the trial court for a new trial.

The full opinion can be found here.

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