Can I Get a Witness?

The District Attorney's Office gets the right guy for the wrong reason.

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.

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