Can I Get a Witness?

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.

When Ed Gray returned, he came back firing away at the state's request to allow Brewer to finger their client through an unknown witness.

"The obvious fundamental unfairness of this is so obvious it begs description, but for us to have an identification made in this trial by someone named Miguel that we've never heard of before is so flagrantly unfair that I don't even see how the court would entertain this idea," he argued.

The veteran attorney was just warming up. Gray insisted that if the court was to allow the state's witness to testify as to what she heard Miguel say, the defense counsel wanted a continuance. They now needed time to mount their own investigation.

"Obviously, we would want to know more about Miguel. We would want to know whether he has good vision or whether he has triple astigmatism in both eyes," Gray contended. "We would want to know whether in fact he even knows Corey Freeman or has even seen him before or how he knows him, how well he knows him, and how he could see him in the dark and know who he is."

Gray added that according to the attorneys he spoke with about the Miguel revelations during his 10-minute recess, allowing this type of testimony would be virtually unprecedented. "No one knows of any case in the history of Texas where the identification in a murder case was answered by a hearsay statement of a missing unknown third party named Miguel, or with any other name."

Just as combative and forceful as his father, Brian Gray followed up with an equally compelling argument, making an important, if somewhat humorous point. This "mysterious Miguel," as Brian referred to him, never even identified the shooter by his last name. "Corey somebody. Who is it? Is it Corey Freeman? Is it Corey Feldman?" he said in a reference to the 1980s teen idol. "I'm sorry. Miguel is the person who alleges to have identified someone named Corey, but we'll never know what they meant by that, who that person was."

Despite the Grays' best efforts to poke holes in the Miguel revelations, Miller denied a continuance. Although Ed Gray told her that Brewer never mentioned Miguel in any of their interviews together, Miller countered that the defense had enough time to prepare their case.

"If we stop every trial every time there was a surprise, nothing would ever happen," she said from the bench.

"Your honor, we believe the issue is unfair surprise, not simply surprise," Ed Gray replied.

With that, the judge called the jury back into the courtroom. The trial of Corey Freeman was under way. In a difficult choice, the Grays had their client take the stand and admit to the shooting, claiming it was in defense of his property. Freeman testified that after he caught a man breaking into his car he warned him to stop running. When he wouldn't, Freeman shot him.

"We could have spent the rest of the trial attacking their evidence," Brian Gray says. "The problem is, if we didn't put him on the stand and put on a defense of property theory, he might have gotten life."

Freeman's case is under appeal with his appellate lawyer, Bill Cox, who has argued that the state's witness should never have been allowed to testify about Miguel's observations. In its response, one of the district attorney's points is that because Freeman confessed to shooting Red, the trial court's decision to admit hearsay testimony is "harmless error." If that counter-argument wins out, then the Grays' decision to let their client take the stand will have backfired badly. Brian Gray understands that their decision could be second-guessed, but in the heat of the moment, and having been denied a continuance to mount a more thorough strategy, they felt they had to put on a defense.

"If the state is going to put on bogus evidence against you, you've got to have balls of steel to let the jury hear it without letting your client take the stand," says Gray, still sounding disgusted over the events of the trial. "Corey's right to remain silent was compromised once they put on a phony witness."

Hallman, along with her boss Mike Carnes, insists that Brewer's story of Miguel is true and that the District Attorney's Office is confident that he is a real person, whom they believe lives somewhere in Kentucky. They may be right, but Hallman's own responses to a set of questions e-mailed from the Observer show just how much the prosecution knows about Miguel.

Observer: Did you or the investigator ever discover what Miguel's last name was?

Hallman: No.

Observer: What he did for a living?

Hallman: No.

Observer: What he looked like?

Hallman: No.

Observer: Did the investigator ever travel to Kentucky?

Hallman: No.

Observer: How did he [Miguel] know Corey?

Hallman: We do not know exactly.

Observer: If there are any written materials the District Attorney's Office has that confirm Miguel's existence, can I review them?

Hallman: We have documents and notes about our search for the person we believe is Miguel's mother, but no documents specific to him.

Observer: If Miguel exists, why couldn't the investigator find him?

Hallman: Insufficient identifying information.

The two law professors who reviewed transcripts of Freeman's pretrial hearing offered strong criticisms of Hallman for how she handled the case. Gershman says that Corey Freeman was denied his constitutional right to confront an accuser whose very existence is in doubt. He blames the judge as well for allowing Miguel's supposed statements to be allowed into trial.

"In this case, the accuser is an unknown phantom witness. For so many reasons, there is no way this evidence could correctly find its way to a criminal trial," he says. "It just seems preposterous for a prosecutor to offer this into evidence; there is no way to check its reliability."

Jancy Hoeffel, a founding board chair of the Innocence Project in New Orleans, a nonprofit legal clinic for falsely convicted inmates, says that Hallman should have immediately informed the defense team about Brewer's sudden statements about Miguel. The fact that the state's lone eyewitness suddenly added a new wrinkle to her story hurt her credibility, and that's a development that is favorable to the defense. That's considered exculpatory evidence which the Grays should have been entitled to well in advance of the trial.

"It's clearly a due process violation when the only piece of evidence you have is eyewitness testimony through hearsay that you never tell the defense about until the trial," she says. "To me, I think it's an egregious violation of ethics. I think it was shady; I think it was purposeful."

On that last point, the professor, who also blames the judge for allowing this at all, says that the prosecution gained an advantage by not informing the defense about Miguel.

"They knew it smelled bad as soon as they learned about it, and they knew their entire case was crumbling when Priscilla [Brewer] backed off and came up with this Miguel," she says. "They darned well recognized the tenuousness of it."

Both Hallman and her supervisor maintain that Brewer's story about Miguel was not exculpatory. After all, the witness doesn't change her story to say that Freeman was innocent.

She just never mentioned the name of a man who supposedly saw a murder.

The Grays continue to insist that had they known about Miguel two weeks before the trial, they could have conducted their own investigation into whether he is a real person and, if so, what exactly he saw when Red was gunned down. Hoeffel agrees that if the defense learned about Miguel before the trial, they could have mounted a far more vigorous defense.

"There are all sorts of things they could have done to prove that Miguel is not reliable, because my hunch is that Miguel does not exist," she says.

Finally, both professors question the Grays' decision to have their client testify. "In hindsight, my gut would have been not to put the witness on the stand because you make the prosecution's case," says Gershman, before adding that through no fault of their own the defense attorneys found themselves in an agonizing situation. "It's an unfair position to be put in. It's an absolutely unfair position."

You won't get any disagreement from the Grays. Unable to discuss the Freeman trial without becoming agitated, Brian Gray says the prosecution used slippery tactics to convict his client.

"I don't believe for one second Miguel exists," he says. "If they don't have that, Corey wouldn't have taken the stand and we would have won the case."

That might not have been justice, but what wound up happening wasn't any better.