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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 Observershow just how much the prosecution knows about Miguel.
Observer: Did you or the investigator ever discover what Miguel's last name was?
Observer: What he did for a living?
Observer: What he looked like?
Observer: Did the investigator ever travel to Kentucky?
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.
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