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Bennett L. Gershman, who has been both a criminal defense attorney and a prosecutor, was even more critical of Hallman's question of the witness.
"What's so extraordinarily egregious? It's not that she didn't know what was in the file. It's that she deliberately misstated the case to the jury," he says. "She shouldn't be a prosecutor if this is her ethical and moral view of how to conduct herself in court."
In an e-mail to the Observer, Hallman again could not specify why she believed the victim was afraid to take the stand. "It has been my experience that victims of rape are afraid to testify and often would rather the case be dismissed instead of facing their rapists in court."
Hallman's direct supervisor, First Assistant District Attorney Mike Carnes, says that Hallman "did nothing intentionally misleading or wrong" during Davis' 2004 trial. Shortly after the mistrial, Hallman, who has been licensed to practice law for eight years, was promoted to the chief felony prosecutor of the 194th Judicial District Court, where she will supervise attorneys as well as try cases.
"Ms. Hallman was promoted due to her excellent record as a prosecutor, her willingness to assist others and her demonstrated leadership abilities," he writes in an e-mail. "I would put her abilities as a trial lawyer up against anybody in Dallas in her age group."
Interestingly, months before the Davis mistrial, Hallman sent out an internal e-mail warning her fellow prosecutors about both Burns and Lena Levario, another defense attorney. Both Burns and Levario are running for judgeships.
"In the past couple of months, there have been several defense attorneys who have accused prosecutors of misconduct during closing arguments," Hallman wrote. "Robert Burns is notorious about this. Just now in trial, Lena Levario pulled the same shit. I think we should all be aware of which defense attorneys do this and be prepared to address such unfounded allegations before they even open their big fat mouths."
Later in the e-mail she writes, "All we have is our honesty and reputation for 'taking the high road.'"
Hallman also interviewed Brewer several times in preparation for the trial. But the last time the two met, two weeks before the May 4 trial, the eyewitness had a surprise for the prosecutor: A man named Miguel, whom she was with the night of the shooting, identified Corey Freeman as the gunman. Brewer admitted that she never told the police about Miguel, and Hallman doesn't explain in her e-mails why exactly her eyewitness decided to bring him up out of the blue after not mentioning him for years.
Hallman claims that she then interviewed people in the neighborhood where Miguel supposedly hung out and was told that he was a black male 17 or 18 years old. She then asked her investigator to locate him so he could testify in person, but Miguel could not be found. All they knew, or all they think they know, is that Miguel was somewhere in Kentucky.
So at that point, with Miguel absent, Hallman explains that she tried to get Miguel's statement admitted as what is called a present sense impression under Texas Rules of Criminal Evidence. Present sense impression is when a witness testifies as to what someone else said or witnessed as the event is occurring. In this case, the event was the shooting of Red more than three years earlier. Present sense impression is the only type of hearsay allowed in a trial; it's considered credible because it is being relayed during or soon after the alleged crime.
On May 4, 2005, in a pretrial hearing, outside the presence of the jury, attorneys Ed and Brian Gray first learned about Miguel, two weeks after Hallman did. There, Hallman argued to admit a statement under the present sense impression exception and examined her witness, again before Judge Mary Miller, who would determine whether the observations of Miguel would be allowed during the trial. To hear Brewer tell it, Miguel didn't seem particularly startled to have witnessed Corey gunning down Red.
"He made the statement, 'That's Corey,'" she testified.
With the jury still outside the courtroom, Ed Gray questioned the state's now former eyewitness. Brewer said that while she saw a flash, she could not identify the people involved in the shooting. Fortunately, Miguel identified the gunman.
"And that's all he said, 'That's Corey'?" Ed Gray asked.
"Yes," she replied
"There was no further discussion about it?"
According to Brewer, she and Miguel were just having routine conversation about Corey shooting Red. Seriously.
Gray then asked Judge Miller if he could have some time to make a presentation to the court about the inadmissibility of Miguel's observations. She gave him 10 minutes. Not having enough time to visit the law library, Gray and his son quickly consulted with a few appellate attorneys in the hall.
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