Update: While the trial of Cesar Rodriguez has had its low points, this was not one of them. I failed to note in the article that the testimony of the mother, Nixzalis Santiago, was taken outside the presence of the jury, which changes everything. She was not called to plead the fifth in front of the jury, and Justice Priscilla Hall’s actions were precisely what she should have done. So mea culpa, and my thanks to Brooklyn ADA John O’Marra for bringing this error to my attention.
The bizarre trial of Cesar Rodriguez, on trial for the murder of his daughter Nixzmary, just gets weirder and weirder. According to this Newsday account, the defense was allowed by Justice Priscilla Hall to call the mother, 29 year old Nixzaliz Santiago to the witness stand even though her attorney told the court that she would assert her right not to incriminate herself.
Rodriguez’s defense attorney, Jeffrey Schwartz, wanted Santiago to testify in an effort to substantiate the defense argument that it was Santiago who struck the fatal blows that killed Nixzmary. Though Santiago’s defense attorneys said she would assert her right not to testify, Justice Priscilla Hall said Santiago had to take the stand to make sure there weren’t any questions she could safely answer.
Black letter law provides that a witness cannot be called to testify if the only purpose of the testimony is to have the witness invoke privilege in front of the jury.
From the defendant’s side, however, the constitutional right to present a defense, that the mother rather than the father delivered the death blow, is a critical fact to be proven. Of course, the defendant might be able to testify to that fact, but he has a right not to testify too.
So what was Justice Hall thinking when she allowed the mother to be called to take the 5th? Did the judge really think that the mother might slip up, take the 5th as to most questions, but somehow answer the question of whether she delivered the death blow? It’s doesn’t seem likely.
“She was only being used by Cesar Rodriguez’s lawyers in order to try and find some way to incriminate her in this trial of Cesar Rodriguez, to make it seem she was the person who killed her daughter,” said one of her lawyers, Robert Abrams, after the hearing. “She had nothing to do with the killing of her daughter. She took the Fifth Amendment because that is her right.”
Aside from the non-sequitur, that’s obviously the defense’s purpose. By asking the damning question and getting an invocation of the 5th in response, it clearly leaves the jury to conclude that the testimony that would be incriminating is that she did exactly what the defense is arguing she did. It’s not supposed to work that way, meaning the jury should take nothing from the invocation of privilege, but of course it will. It’s only human nature.
So, after the “coffee mug defense” fiasco, the defendant seems to have scored big by having the mother take the stand. Like I said, this is turning out to be one weird trial.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Even though you are a defense attorney -you should check facts before making accusations. Judge Hall allowed the witness to be questioned outside the presence of the jury. After she asserted her fifth amendment privilege, Judge Hall then ruled she could not be called in front of the jury. This is the proper and standard procedure, which should be know to any competent experienced practitioner.
If that’s correct, notwithstanding the content of the Newsday story, than that’s a glaring omission from the artile that significantly changes the consequence of the mother’s testimony. Even us stupid defense lawyers know that. Of course, you could have made your point like a human being, rather than a jerk. It’s impolite to go to someone else’s blog and behave poorly.
This post was based on the Newsday story, which if you read it (are you thorough before accusing, John?) says nothing about her testifying either in a hearing or outside the presence of the jury. Did you read the story? If you had, you would see the basis for my post. I don’t owe it to you to investigate the facts behind the Newsday story. Frankly, I don’t owe you anything. If you don’t like my blawg, start your own.
While I am always happy to correct inaccuracies in my posts, and you are always welcome to bring information to my attention if my posts contain an inaccuracy, try acting like a human being instead of a jackass. Thanks.
It was in the article, but you must have missed it. I’m sure you would agree that it’s important to make sure that the facts are correct.
And I apologize for behaving poorly. I realize that I’m a jackass and I just can’t seem to control myself. I hope you will forgive my inappropriate accusatory tone. After all, I am a career prosecutor and being offensive and inappropriate has become a way of life.
Ed. Note: Just helping you out, John, since you clearly have some extreme difficulty getting the point. Thank you for correcting the facts.
I have reread the article and you are absolutely correct. It was in there and I missed it. The detail entirely changes the propriety of Justice Hall’s decision, as she handled this exactly the way it should have been handled.
Thank you so much for bring this mistake to my attention, John, so that I can correct the error of my analysis.