Can I Get a Witness?
The sound of gunfire broke the calm of a clear, cold February morning just a few hours before dawn. Rushing through the breezeway of a southeast Dallas apartment complex, the thief yelled in vain for help. The first two bullets struck him in the back, slicing through his ribs and lungs while the third went straight through his left leg. He coughed blood, screamed and fell to the ground, a maroon splash marking the end of his run.
A woman from a nearby apartment rushed toward the fallen man and grabbed his hand. She knew him by his nickname, "Red." Paramedics arrived and took him to Mesquite Community Hospital. Within minutes, Red was dead. The root cause of his fate, 0.6 grams of crack, was tucked in his pants pocket.
After the shooting, the gunman quickly returned to his apartment and awoke his girlfriend with a vague, tearful confession. "I done something bad. I done something bad," he told her.
His lawyer would later say that earlier that evening, the woman was up doing drugs. Now she was naked, scrambling down the stairs of the apartment complex with a handful of clothes and a sobbing boyfriend by her side. They drove away from the complex to a nearby park before realizing they forgot something: They returned for the man's son.
On February 16, 2002, three days after Red's shooting death, Dallas police detectives found his killer, 27-year-old Corey Sharod Freeman. Several witnesses, including his girlfriend, told police he talked about the shooting. Another woman said she saw him do it. Case closed.
Last year in a Dallas County courtroom, Freeman confessed to the murder, saying he shot at Red, whose real name was Steven Rozelle Fields, after he saw the man rummaging through his car at 4:30 a.m. outside the Aspen Chase Apartments. Others testified that Freeman was out to get Red after he stole Freeman's crack a few days before the shooting. A jury sentenced Freeman to 15 years in prison.
Freeman's lawyers, the father and son team of Ed and Brian Gray, didn't seem to have any reason to be bothered by the outcome of the trial. Their client admitted to shooting an unarmed man in the back after the victim stole--that night anyway--nothing more than a Walkman, and all Freeman got was a maximum of 15 years behind bars. At the very least, most defense attorneys would have viewed the sentence as a draw.
But as they walked away from the courtroom last May, father and son were furious. Two weeks before the trial, and completely unknown to them, the state's lone eyewitness abruptly changed her story. Although she initially told police she saw "Corey shooting at Red," she later admitted she could not see the gunman after all. Suddenly she had a different tale to tell.
The witness told the prosecutor it was actually her friend, a mysterious man named Miguel, who saw the gunman as she and Miguel were driving away at around 4:30 a.m. from the Aspen Chase Apartments. It was Miguel who told her that the gunman was Freeman. The now former eyewitness admitted that she herself could not identify the shooter or the victim.
The witness didn't know Miguel's last name or his exact whereabouts, saying only that he moved to somewhere in Kentucky. She never told the police about Miguel, nor did anyone else apparently utter his name. In pages and pages of police reports on the murder of Steven Rozelle Fields, there's no mention of Miguel.
Prosecutors assigned an investigator to track down their new eyewitness, but he couldn't find him. The investigator also never learned Miguel's last name, his appearance, what he did for a living or how he knew Freeman. To this day, the District Attorney's Office knows far less about Miguel, its lone eyewitness in a murder trial, than most people know about the blind date they just met on Match.com.
The law says that prosecutors must turn over favorable or exculpatory evidence to the defense, which generally includes any clue or statement that might cause a jury to doubt the state's case. In the case against Freeman, the revelation that the only eyewitness had recast her account of what happened on the night of the shooting would seem to be a boon to the defense. But the prosecutor kept that evidence to herself for two weeks, thwarting the defense's chance to exploit it to their advantage.
In fact, Ed and Brian Gray didn't know that the "eyewitness" against their client changed her story until minutes before the trial, when they discovered that the state was going to use hearsay testimony. Although clearly stunned at the last-minute development, they offered impassioned arguments pleading with the judge for a continuance so that they could find out if Miguel existed and talk to him themselves, but the judge refused.
Now the Grays had two options: try to ridicule the witness and hope that a jury would doubt a secondhand account of what might have happened, or have their client take the stand and explain what he did on the last night of Red's life. They went with option two and, at first blush, it seems like justice was served. How can you argue that Corey Freeman didn't deserve what he got?
But law is different from nearly all other endeavors in at least one fundamental respect: The process matters as much as the outcome. Or to put it another way, you can't railroad a guilty man just because he's guilty. Regardless of whether his punishment was just, Freeman was basically coerced to confess after being implicated by the hearsay testimony of a man named Miguel whom no one seems to know much about.
Law professors the Dallas Observer asked to review transcripts of Freeman's trial are astonished at how the District Attorney's Office and felony prosecutor Shelley Hallman withheld news of the witness' sudden elaborations while basing their case on the alleged statements of an unknown man. Bennett L. Gershman, a law professor at Pace Law School in New York and a former prosecutor with the Manhattan District Attorney's Office, could hardly believe Hallman failed to inform the defense about the witness' modified account.
"It seems like it's in bad faith; it seems like they're sandbagging the defense; it seems like they're overzealous in wanting to win the case at all costs. It stuns me that that is the way that this particular prosecutor would proceed in this particular case," says Gershman, who has also served as a visiting professor at Cornell Law School. "I can't think of any serious observer of the criminal justice system that would agree with what the prosecutor did here. I can't think of anything like this when the prosecutor goes with a case that is so shoddy and obstructs the defense counsel's ability to dispute this proof. The more I think about it, the more furious I get."
Interestingly, in 2004, Hallman was found to have asked a witness during sentencing an improper question about a rape charge that had been dismissed. A judge ruled for a mistrial, tossing out a conviction in the process, and prosecutors settled the case. Nevertheless, Hallman's job evaluations on file at the District Attorney's Office depict her as a bright, diligent, successful prosecutor, although other attorneys single her out as an overly aggressive lawyer who pushes the ethical envelope.
"In my opinion she's a very dangerous prosecutor," says attorney John H. Read, who recently went up against her and lost in a two-week trial during which he believes she had been coaching witnesses. "She wants to win so badly, she'll do whatever it takes to win. People forget that for district attorneys, it shouldn't be about winning, it should be about justice."
Then there's Ed and Brian Gray, who are even more caustic in their evaluation of the District Attorney's Office, particularly Hallman. Like Read, they know that it's considered impolite, if not bad for business, to openly lambaste a felony prosecutor such as Hallman in a system where defense attorneys' cozy relationships with members of the District Attorney's Office could result in favorable plea deals for clients. It won't exactly help the Grays that Hallman is newly married to Toby Shook, the high-profile prosecutor and Republican candidate for district attorney. But more than a year after the trial of Corey Freeman, they remain incensed over how she failed to turn over the key evidence before the trial. Worst of all, Ed Gray, himself a former prosecutor under renowned District Attorney Henry Wade, says Hallman should have known that her witness' story did not make any sense.
"There was never a Miguel, and Shelley knows it."
Almost immediately after Red's death, the police were closing in on his killer. A day after the murder, Priscilla Brewer told detectives about Freeman, who had been staying with his girlfriend, Schawana Johnson, at the Aspen Chase Apartments, located on Ferguson Road near LBJ Freeway. Johnson told Brewer that Freeman wanted to kill Red. He thought Red had broken into their apartment, because nothing was taken other than their crack. Both Freeman and Johnson believed that only Red knew where they kept their drugs.
Brewer told detectives that a few nights before Red's death, Freeman sent someone to look for Red, but with no luck. But two or three days later, Freeman found Red. Brewer told police that she saw exactly what happened that night.
"I was in my car, fixing to leave, and I saw Red walk past my car. Red turned the corner, and then I heard shots. I looked up and saw Corey shooting at Red. Corey fired two more shots. Red was running and ducking. I saw the flash from Corey's gun. I turned around the corner, and that's when I saw Red lying on the ground. Corey got into his car, a gray or silver Mustang, and took off out of the apartments."
Later, on the stand, she would admit that she couldn't, in fact, identify the people involved in the shooting, despite what she told police earlier. When she first talked to detectives, Brewer made it seem as though she had a front-row seat to a murder. She notes Freeman fired at least two shots. She recalls him getting into a "gray or silver Mustang." Yet nowhere in her statement to police does she bring up the mysterious Miguel, whom she later would claim was the real eyewitness. She doesn't even hint that she was with anyone. "I was fixing to leave," she said.
With Brewer, the police had their eyewitness--or so they thought. Still, they were going to need more. Soon, detectives would have some circumstantial evidence to bolster their case. Schawana Johnson, who would later marry the gunman, gave a statement to a Dallas detective two days after Red's murder. It was pretty damning. She echoed Brewer's story recalling that her boyfriend wanted to "beat Red up" because he made off with his crack. She told the detective how they fled after the killing, with a sobbing Freeman admitting "shooting at Red."
Finally, yet another witness told police that Freeman incriminated himself in the shooting. She said that Freeman called her at 3:30 in the morning and asked her "what the word was." She told him that she heard he killed Red. He replied, "It wasn't supposed to go down like that." Then he started to cry.
A 1998 graduate of Texas Tech University School of Law, Shelley Hallman has a reputation for being a tenacious, hard-working prosecutor; her competitive style, however, has antagonized some of her courtroom adversaries. Since she first began prosecuting drunk-driving cases seven years ago following a short stint at a commercial litigation firm, Hallman has steadily ascended the ranks at the District Attorney's Office. She has prosecuted various felony child abuse cases along with aggravated sexual assaults and homicides. Affable, even to her detractors, the young brunette married felony trial bureau chief Toby Shook not long after he won the Republican nomination for district attorney last March.
Although her supervisors have given her laudatory performance evaluations year after year, Hallman became the talk of the courthouse not long ago when she wound up testifying in her own trial. In 2004, Hallman won the conviction of a man named Christopher Davis on a vehicular manslaughter charge. During sentencing, the defense attorney had the defendant's brother James Carter testify that Davis would be a good candidate for probation. In cross-examination, Hallman asked Carter if he knew that his brother had been charged with aggravated sexual assault in assisting others in a rape, a pointed but fair question designed to weaken the brother's credibility. In fact, the rape case was dismissed, but Hallman explained the reason in a follow-up question to Carter.
"And did you know that the [accuser] did not go forth with these charges because she was so scared?"
The defense attorney's objection to the question was sustained. Then the jury was excused, and defense attorney Robert Burns complained about the question, saying that it was very prejudicial. "There's certainly a skunk in the jury box," he argued.
Hallman's question had the effect of depicting the defendant as having intimidated the woman he was accused of helping rape. So what if the charge was dismissed? Christopher Davis and his friends scared her into dropping the case, Hallman said in essence.
District Judge Mary Miller asked Hallman if it was her understanding that the case was dismissed because the victim was scared.
"Yes, judge, that's my understanding is that the victim did not want to go forward and prosecute because she was afraid."
Then Hallman reviewed the file, which noted that the victim, after having no-showed a couple of times in scheduled meetings with the District Attorney's Office, decided that she did not want to testify. There was no mention of the victim being afraid.
The next day, in an unusual move, the judge allowed Burns to question Hallman on the stand. There, she admitted that nowhere in the file does it say the victim "did not want to testify because she was scared." In fact, there was nothing in the file explaining why the victim was unwilling to testify, prompting the defense counsel to remark to Hallman that when she asked the pointed question of his witness, "you were essentially making that up."
Hallman could not give any specific reasons why she thought the victim was afraid to testify. "That was my good faith basis, not based on facts, but based on my good faith belief...based on my experience in handling other aggravated sexual assault cases and victims, adults and children, that when a case is dismissed, when they don't want to testify, it's because they are scared," she said in an obvious generalization.
The defense counsel later argued to the judge that Hallman's questions poisoned the jury.
"I think my client has been severely damaged in front of this jury by the blatantly incorrect insinuations made by the prosecutor, you know, obviously to prejudice a jury against my client, to make the jury think my client is a rapist, and it's false, and those insinuations are highly prejudicial."
Later, Miller said that she never would have allowed those questions to be asked in the first place had she had the full information at the time. Saying that the court "can't unring a bell," she granted a mistrial. Prosecutors later offered the defendant a plea of 10 years' probation.
Two law professors who have reviewed transcripts of this case were troubled by Hallman's examination of the witness. Jancy Hoeffel, a former public defender and associate professor of criminal law at Tulane Law School, says that Hallman's most egregious error was not in failing to study the file on the rape charge. That happens, she says. But Hoeffel says the prosecutor had no reason to ask the question about the supposed victim being afraid to testify. "You can't guess. If all they have on the first page is that she dropped the charges, it's an unfair question to ask, 'Well, didn't they drop the charges because they were scared?'" she says.
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.'"
In spring 2005, less than a year after the Davis mistrial, Hallman was preparing for the murder trial of Corey Freeman. The prosecutor had a solid case, but obtaining a conviction wasn't going to be easy. For one, even though Hallman had strong circumstantial evidence tying Freeman to the crime, her eyewitness, Brewer, wasn't able to pick him out of a police photo lineup. Hallman could, however, argue that this was inconsequential. For some reason, the police showed the witness a photo of Freeman that was nine years old.
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.
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 breakinginto 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?
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.
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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