There have been no shortage of screw-ups, from the years of delay in the murder trial of Brian Solano to the 2015 video of the interrogation of Justis Colon, admitting he had the murder weapon at time of the murder, that has miraculously emerged since.
Prosecutors with the Bronx district attorney’s office did not disclose video of a key 2015 NYPD interview until April 2017. But the video, in which another man, Justis Colon, told cops that he possessed the murder weapon, was leaked to Solano’s private investigator Manuel Gomez and provided exclusively to In Justice Today.
As to why each of the three Bronx assistants neglected to turn this over to Solano’s lawyer, Dawn Florio, nobody seems to know much of anything. Oopsie. Sorry.
“I don’t think it’s anything intentional,” said Kapp. “I can’t explain … I don’t remember hearing about a statement being taken. It’s possible the police never brought it to us. It’s all about relaying information and sometimes information chains break down, though I’m not saying that happened in this case.”
This seems ludicrously incompetent, if remotely credible, until one remembers it’s the Bronx District Attorney’s office, and Darcel Clark doesn’t exactly run her ship like a Nebraska Admiral.
Despite all these huge problems, the defense now has the Colon video in hand and is ready to kick butt at trial, right? Not so fast.
But at that same hearing, however, ADA Gensler requested that the defense be precluded from introducing evidence about Colon possessing the murder weapon at the time of the offense.
“The fact that this person indicated that he had had this gun during the time might mean many things,” Gensler told the court. “It could be a lie, it could be that he lent it to somebody else that lent it to the defendant, but it does not indicate that he was in fact there.” In her motion to exclude the issue of Colon’s gun, Gensler further argued that “gang members frequently share their weapons” and warned of a trial that would be “about the guilt or lack thereof of Justis Colon rather than Brian Solano.”
Cool arguments, all, and totally appropriate for Gensler’s closing, but so what? As it turns out, Colon, after his identity was revealed, was interviewed by Florio’s private investigator and gave an additional statement.
In a sworn affidavit provided to Gomez, Colon stated that a prosecutor with the Bronx district attorney’s office “tried to intimidate me and force me to switch my story that was on video to help the D.A [sic] win the case against Brian Sollano [sic] … I told her I’m not switching my story. She threatened me to link me to the case if I don’t help her out. I’m innocent I have nothing to do with that case. If I’m needed I will testify in court.”
It would appear Gensler well appreciated how the Colon video would undermine her case against Solano, and did her best to salvage her case by getting Colon to change his story. But the catch is that if Colon had the gun, which meant Solano didn’t and couldn’t have been the shooter, that would make Colon the shooter. And as Colon swore, “I’m innocent.”
The case then took a hard turn south when Justice Steven Barrett ruled on the prosecution’s motion to preclude.
On October 24, the judge ruled that neither two police witnesses related to Colon’s gun case nor the NYPD’s 2015 interview of him could come in at trial. The judge said that in order to have allowed the videotape and the Colon-related witnesses into the trial, the defense would have had to demonstrate that Colon himself was the killer.
So they now have the video and the judge refuses to allow the defense to introduce it into evidence. This is a wild ruling, as a defendant has a 6th Amendment right to present a defense. The judge doesn’t have to like it, or agree with it, or be persuaded by it, but he has to allow it provided the evidence is material and relevant. There is absolutely no question but that the Colon video is highly material and relevant.
And it is never the defendant’s duty to “demonstrate that Colon himself was the killer.” All that is necessary of the evidence is that it bears upon the issues on trial, that it makes a fact to be determined more or less likely. All the defense must do is create reasonable doubt that Solano was the shooter, not prove someone else was the killer.
The arguments raised by ADA Gensler are all fine contentions, and arguments that she may well raise in her summation as to why the jury should disregard the Colon video, why it is untrue or inaccurate, and they should accept whatever other testimony the prosecution provides. But what these arguments are not are reasons to preclude Florio from putting on a defense and using this explosive video at trial.
Gensler raises the “trial within a trial” argument, that the trial of Solano will end up being a trial of Colon, whether he was the shooter, whether he’s telling the truth, whether he’s covering up Solano’s shooting. And, indeed, there will certainly be some of that, particularly if the prosecution’s evidence against Solano is so weak that it can’t overcome the Colon video. So what?
Challenging the veracity and accuracy of a witness’ testimony happens all the time, although it’s usually the defense trying to shred the credibility of a prosecution witness. Clearly, the prosecution doesn’t care much for being in the defendant’s position of having to tear down some strong testimony that eviscerates its case. Sucks to be a prosecutor, eh?
But why Justice Barrett granted the prosecution’s motion is a serious mystery. The rationale doesn’t hold up. It’s never a defendant’s job to prove his innocence, but only to raise a doubt as to his guilt. There is no claim the video isn’t material and relevant evidence. Nor is the concern that its prejudice outweighs its probative value implicated, as it’s extremely probative and its extreme prejudice goes to the very core problem with the prosecution’s case, they’re trying an innocent guy.
And still, the case remains untried, even though Justice Barrett has had enough of the delays.
Bronx Supreme Court Judge Steven Barrett said during a February 21 hearing. “The case is going to go to trial even if I have to do it myself without any attorneys.”
Then again, trying it himself “without any attorneys” could make for an interesting trial in itself.
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The case-within-a-case excuse is a real argument for suppression? In what kind of trial does that not happen? I would love to see that order, if only to see if it has more than one word.
I clicked on the link to Judge Barrett. Are judges really appointed by the mayor in NY?
I haven’t been able to get my hands on a decision, so I don’t know whether there was a written decision or just a ruling from the bench. The docket just shows “denied.”
Judge Barrett is an “acting Supreme,” meaning that he was appointed as a criminal court judge by Koch in 1985, and then assigned to Supreme later. The mayor gets to appoint lower court judges, but Supreme Court Justices are supposed to be elected. The problem is that they needs tons more judges than they have elected positions, so they keep elevating appointed judges to Acting Supreme. Judge Barrett has been an “acting” for more than 30 years, so clearly that system works great. That said, he’s always been a pretty good judge.
SHG,
First, the judge’s ruling excluding the videotaped interview seems to suggest a lack of relevance. But the fact that the prosecution, albeit late, treated this material as Brady material runs a stake through the heart of that argument. Moreover, and setting aside the Brady-based point, any common sense view of the evidence–I had the gun, he didn’t–establishes relevance.
Second, I suppose there is a potential hearsay objection to the video. This could arise in two scenarios.
If the witness who was interviewed invokes his Fifth Amendment privilege and refuses to testify at trial (as any sane witness would do). I think a hearsay objection to the defense offer of the video could be overcome in at least two ways:
(a) offering the video as a statement against Interest under whatever state law is equivalent to Federal Rule of Evidence 804(b)(3); and
(b) offering the video as a residual exception under whatever state law is equivalent to Federal Rule of Evidence 807.
Now, if the witness does testify for the defense, and his credibility is attacked by the prosecution, then the video tape comes into evidence on rebuttal as a prior consistent statement under the equivalent of Federal Rule of Evidence 801(d)(1)(B).
In short, this case is a real head-scratcher. If, as you say, the judge has “been a pretty good judge” we need more information on the judge’s reasoning. Perhaps the judge will provide it.
All the best.
RGK
I can think of a few different ways to get this in, though typically state court judges don’t tolerate the prosecution objecting on hearsay grounds to evidence it created for its own use at trial. But I can’t for the life of me understand how this could be precluded.
Even Court of Appeals Judge Michael “Homeland Security” Garcia held that “admission of third-party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime.” People v. Powell (NY 2016). Let alone proof.
“Even…Garcia.” How can he possibly be so awful when he was appointed by the very woke Governor Andy? I’ve long found Mark Mahoney’s position, that the Sixth Amendment entitles a defendant to present his defense, regardless of what any judge thinks of it. If the defense sucks, then it will fail, but it’s the defendant’s right to challenge the prosecution without his defense being subject to anyone’s “approval.” Garcia included.