Thursday, July 23, 2009

A "rare case"

In a decision today involving a familiar cast of characters, the Mississippi Supreme Court unanimously reversed and remanded the armed robbery and aggravated assault convictions of Tomarcus Monte Fulks. At issue was testimony of a State's witness that changed from exculpatory to inculpatory at some point prior to trial. That's not new, and it's certainly not uncommon. What's uncommon is prosecutors not sharing that the testimony had changed until the day before trial, and a judge denying a continuance based on the discovery violation.

Box v. State, 437 So. 2d 19 (Miss. 1983), is (or sure as heck should be) well-known to every practitioner of criminal law in the state courts of Mississippi, be they prosecutor or defense counsel. So is Rule 9.04 of the Uniform Rules of Circuit and County Court Practice, which is based on the holding in Box. The holding in Box "obligated" the trial judge in this case "to undertake some remedial avoid manifest injustice."

The Supremes go on, in an opinion written by Justice Kitchens, to call this "precisely the sort of 'trial by ambush' that Mississippi has endeavored to outlaw," and the case itself a "rare case." Further, they proceed to take the trial judge to task. Here's an excerpt:

When a prosecutor reveals evidence on the eve of trial that should have been disclosed earlier, and when that evidence completely undercuts the defense’s theory of the case and renders most of its trial preparations worthless, then the only effective remedy is a continuance. Otherwise, the defense attorney is left with inadequate time and opportunity to investigate the newly arisen evidence, evaluate its trustworthiness, discuss its implications with his client, allow time for due consideration thereof, and, if necessary, to develop a new trial strategy. This quandary seems to have gone unrecognized by the trial judge, who treated Glenn’s new revelation merely as an impeachment opportunity for the defense.(emphasis added)

I recommend a full read of this decision, and not just for lawyers. Major kudos to Jeff Hosford for making a good record, and to Dan Hinchcliff and Leslie Lee for their appellate work.

P.S. - For those of you who were confused last year about the difference between James T. Kitchens and James W. Kitchens, this should clear it up.

1 comment:

justiceforjuveniles said...

I'm curious, what if this scenario occurs, except defense counsel fails to ask for a continuance? Is it still a due process violation? Is it still trial by ambush but without any recourse?

thanks, Pam