Friday, July 24, 2020

Bad jury charge in drug case wins defendant a new trial

What can go wrong at a criminal trial? A lot, especially if the jury instructions are incorrect and allow the jury to find the defendant guilty simply because he decided to take the witness stand in his defense. That is what happened here.

The case is United States v. Solano, issued on July 22. Defendant was a truck driver who picked up some cargo on the docks in Brooklyn and delivered it elsewhere in New York City. A surveillance team discovered drugs in the cargo before defendant retrieved it, and they arrested him after he made the delivery. The dispute at trial concerned what happened during the interrogation at the police station. The police claim defendant confessed to knowingly delivering drugs, but defendant denied making any such confession. The police seem to have misplaced or mishandled the paperwork that would have memorialized the confession, and there was also a screw-up with the forms that would have confirmed the police read defendant his Miranda warnings ("you have the right to remain silent"). That makes all of this a close case. The jury convicted defendant of attempted possession of cocaine with intent to distribute, and he was sentenced to 42 months in jail.

The conviction is reversed. The problem was the jury charge, which said a witness who testifies at trial has an interest in the outcome of the case and that interest "creates a motive on the part of the witness to testify falsely." While a criminal defendant obviously has an interest in the outcome of his case, it does not necessarily mean he will lie under oath, especially if he is not guilty. As the Court of Appeals (Kearse, Calabresi and Carney) writes, "an instruction indicating to the jury that that interest gives him a motive to testify falsely is contrary to the presumption of innocence."

Defendant did not object to this charge at trial. It seems the trial court did not show the parties the jury charges before they were read to the jury. That is an unusual maneuver. Usually the parties have some time to review the charges to make intelligent objections. After the above charge was read to the jury, defendant's lawyer still failed to object. That is not necessarily a waiver, if the charge is "plain error," that is, if the charge is so manifestly incorrect that defendant was denied a fair trial no matter you slice it. That is the case here. Since this was a credibility case, the court cannot say with confidence that the bad jury charge did not make a difference. New trial for defendant.

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