Prosecutor Admonished For Withholding Key Evidence to Ambush Defense in Gang Case –
Add in four defense attorneys in a four co-defendant gang case and the always-volatile Deputy DA Ryan Couzens, and you have the recipe for something extraordinary. Thursday afternoon did not disappoint as the defense took exception to Mr. Couzens’ failure to disclose key evidence that seemed to threaten to derail the case for the time.
The incident in question happened during the re-direct, as suddenly Ryan Couzens was asking Officer Duggins of the West Sacramento police department about a conversation he had with Marco Benitez.
Mr. Couzens suddenly was claiming that Mr. Benitez, a witness for the defense, was assaulted by Tommy Kalah, a brother and son to some of the defendants. The implication here was that Mr. Kalah had done this to intimidate the witness.
Judge Fall was called into the room to settle the brewing dispute, outside of the view of the jury. Three of the four defense attorneys were accusing DDA Ryan Couzens of withholding evidence.
Judge Fall said that he was expecting, when the question arose from DDA Couzens, to hear four objections for hearsay. However, he heard none. One of the attorneys said they were so stunned that the words did not come, though Judge Fall admonished her that she did not speak for the entirety of the defense on that point.
Judge Fall thought there was a reason that the defense allowed the evidence to go forward but then said it really did not go anywhere, so he was surprised to hear of this revelation.
For his part, DDA Couzens said it was impeachment evidence and that he had Supreme Court authority that allowed him to bring it in and did that not require him to disclose it previously.
He argued this was evidence that the defendants were interfering with evidence, having their “homies” beat up and intimidate witnesses.
He said that Mr. Benitez was lured over and was beaten up by Tommy Kalah.
In a telling moment, it became obvious that this was a calculated move by Mr. Couzens. He said that he gave it a lot of thought, consulted not only the authorities but his supervisors as to whether he could fail to disclose this evidence and, after much soul searching, believed he could.
Public Defender Lisa Lance was concerned, due to her office’s representation of a peripheral witness whom they had no idea might be connected.
Defense Attorney Robert Spangler called this Brady Material.
Deputy DA Couzens had argued that the defense had opened the door by asking about Mr. Benitez. But if they opened the door it was a trap door. Jeffrey Raven, another defense attorney, had asked the office if it had been Mr. Benitez who lived in a nearby trailer. He said that was not impeachment because that was the only question that he had asked about Mr. Benitez.
The point the defense made was that Mr. Couzens was essentially waiting for anyone to even mention Mr. Benitez and then he would lay out his hammer and spring evidence that had not been discovered.
Judge Fall played it both ways, at one point admonishing the deputy DA but at the same time making it go away.
He said that the defense had not opened the door. He said if this evidence was truly help for impeachment, this was not impeachment. This was an effort to bolster the prosecution’s case in chief. It is part of this case.
He said that this should have been turned over to the defense, and that it was not. He called it a waste of time since the line of questioning did not go anywhere. He said it was hearsay which raised no probative value. He argued under evidence code 352 he was striking it from the record.
Judge Fall then, having made the issue go away without real consequence to the Deputy DA, admonished him that there is a reason why there are discovery rules in trials and that “in California Courts we not do trial by ambush.”
While it sounds like a strong ruling, it is not. Judge Fall has not ruled on whether the information can be used later when the defense intends to call Mr. Benitez to corroborate their story, though he did rule that Mr. Couzens improperly withheld it.
Now, that is called into question since Mr. Couzens may still be able to use the evidence of the assault, that he failed to disclose to the defense, to suggest that the beating was an effort to silence, intimidate and coerce testimony from a key witness.
Mr. Couzens, while devious and intending to withhold key evidence from the defense, actually played his card too soon and should have waited for Mr. Benitez to testify before bringing in the evidence.
But let that error not diminish the severity of his treachery here. He was in fact holding onto evidence to ambush the defense with, completely improper but not surprising, coming from this Deputy DA.
The fact that he discussed this with his superiors first only strengthens the conclusion that this was a calculated act and that it had support from the leadership in the DA’s office.
—David M. Greenwald reporting
Let’s be clear about Brady, because withholding Brady material requires you to report yourself to the State Bar, and can result in the outright dismissal of a case. The material withheld must be “Potentially Exculpatory” to violate Brady, and this information was clearly “inculpatory” and therefore could be held back by the prosecution. As a defense attorney, you would like to know before hand what the Prosecutor knows, but you are not necessarily entitled to information like this. You, the Vangaurd, might want to have an attorney to consult before posting things like “Dirty Tricks.” I do think that you are right; that the DDA pulled the trigger too soon and lost the ‘wow’ factor that might have come later.
Note to Defense Counsel, do your homework before trial so that you aren’t surprised. Use the investigators you have wisely.
Judge Fall was very clear that this information should have been turned over to the defense.
I thing the tag line to the articles should be “David Greenwald opining”.
Devious, treachery, ambush, always-volatile. These are opinion words. The next step will by an imbedded sound when the cursor crosses over the name of Cousins, I imagine it will be in eerie sounding organ like the old radio shows.
Cousins screwed this one up I see no reason to think he was doing anything devious. His claim is it was discussed in the office and the consensus was that they could wait until someone brought up Mr Benitez. The judge disagreed and it was handled.
My next thought would be that I’ve never seen one defense attorney speechless, much less four at one time.
[quote]Mr. Couzens, while devious and intending to withhold key evidence from the defense, actually played his card too soon and should have waited for Mr. Benitez to testify before bringing in the evidence.[/quote]
So all Mr. Couzens was “guilty of” (pardon the pun) was impeaching the witness too soon, before the witness testified? Have I got that right? It is not that the testimony never could have come in, just that the timing of it was premature?
[quote]Judge Fall played it both ways, at one point admonishing the deputy DA but at the same time making it go away.[/quote]
Yes, it was twenty lashes with a wet noodle. It appears the judge recognized the attempted impeachment was premature, but because it went nowhere, was harmless. In fact, now that the defense has been warned, they will be careful what questions they ask of this witness, so hopefully he cannot be impeached by Couzens later on – they will attempt not to “open the door” to impeachment.
For the uninitiated, impeachment “refers to the introduction of evidence aimed at discrediting the testimony of a witness (Law of Evidence by G. Lilly)… The term bias denotes a variety of mental attitudes that may cause a witness to give false or misleading testimony… Courts generally permit the impeaching party to prove bias… by adducing extrinsic evidence either from witnesses or documents…Many jurisdictions require that as a prerequisite to the introduction of extrinsic evidence, counsel first must ask the witness about the circumstances underlying the alleged bias…In these instances, the courts usually require the foundation that…is generally essential to impeachment by prior inconsistent statements.”
It sounds as if DDA Couzens neglected to lay the proper foundation, by asking questions of Benitez BEFORE any attempt at impeachment.
Dirty trick? How so? It sounds to me more like a rookie mistake…
Ok, just let me know if I am becoming too repetitive, but the whole thing sounds like game playing to me. This all sounds like how can I win at any cost, not how can we arrive at an honest, just and equitable conclusion? And we wonder why our legal system costs so much !
[quote]Ok, just let me know if I am becoming too repetitive, but the whole thing sounds like game playing to me. This all sounds like how can I win at any cost, not how can we arrive at an honest, just and equitable conclusion? And we wonder why our legal system costs so much ![/quote]
LOL You have to think of a trial somewhat like a chess game. One side makes a move, then the other side makes their move. The the other side makes a move depending on what the opposing side did. All the while the prosecutor and defense are bound by very strict and highly technical rules of the game. To the outside world, it appears almost mystical/arcane/ridiculous. But there are actually good reasons for the technical rules, but they can be applied in ridiculous ways at times.
The theory is that the adversarial system puts all the evidence to the test. But as we have seen, there are also many abuses of those rules, and the judge does not always see the fouls or does not always call them. It is most definitely an imperfect system – but then people are involved in the legal system, so go figure!
For instance, is the medical profession perfect? Do doctors ever make mistakes? Why would you expect perfection in the legal profession, and not demand it of every other profession?
“So all Mr. Couzens was “guilty of” (pardon the pun) was impeaching the witness too soon, before the witness testified? Have I got that right? It is not that the testimony never could have come in, just that the timing of it was premature? “
No what Mr. Couzens is guilty of is trying to spring a surprise attack on the defense by failing to disclose evidence. There were five lawyers in the room including the neutral judge who called it inappropriate.
[quote]The theory is that the adversarial system puts all the evidence to the test. But as we have seen, there are also many abuses of those rules, and the judge does not always see the fouls or does not always call them. It is most definitely an imperfect system – but then people are involved in the legal system, so go figure!
For instance, is the medical profession perfect? Do doctors ever make mistakes? Why would you expect perfection in the legal profession, and not demand it of every other profession? [/quote]
My response would be the adversarial system works fairly poorly in my opinion in general, but it looks less well when one side is trying to game the system.
ERM said
“For instance, is the medical profession perfect? Do doctors ever make mistakes? Why would you expect perfection in the legal profession, and not demand it of every other profession?”
Sure doctors make mistakes but they are real mistakes. My concern is that people working for the DA intentionally bend or even break the law and then if caught claim it was a mistake.
Re: “gaming the system”
Seems to me the defense has equal incentive to do this as does the prosecution; or are the pure-as-driven-snow angels all on one side and the dirty sneaky devils all on the other side?
[quote]My response would be the adversarial system works fairly poorly in my opinion in general, but it looks less well when one side is trying to game the system. [/quote]
“one side is trying to game the system”? LOL Both sides “game the system” all the time…
[quote]No what Mr. Couzens is guilty of is trying to spring a surprise attack on the defense by failing to disclose evidence. There were five lawyers in the room including the neutral judge who called it inappropriate.
[/quote]
You didn’t answer my question – could the evidence have come in at a later time?
Two comments:
1. Alphonso: and when doctors make mistakes they are sued. D.A.’s have immunity.
2. What this entire episode tells me is that the Vangard is doing an awesome job. These 4 defense attorneys were aware of “the book” on DDA Couzens and regardless of his plan and his checking (or not) with his superiors, he did not get away with it because they were forewarned and prepared. That, it seems to me, but I was not there, is why none of them said anything.
“DDA Couzens said it was impeachment evidence”
Impeachment evidence as to my understanding is that it is to impeach a witness if they lie on the stand. So the way it should have happened is the witness Mr. Benitez should have been on the stand, DDA Couzens could question him on the issue and if he lied, then DDA Couzens should have called the officer back to “impeach” Mr. Benitez. Nonetheless, DDA Couzens is still supposed to run “impeachment” evidence by the judge if he wants to keep it from the defense, which it appears he did not. Kathryn correct me if I’m wrong in my understanding.
To add o my earlier comment:
It looks like what DDA Couzens was trying to do was prejudice the jury against the witness before the witness had a chance to testify. Hence, yes it does look like a dirty trick.
“Both sides “game the system” all the time… “
That has not been my observation of the legal system.
“You didn’t answer my question – could the evidence have come in at a later time?”
I don’t even know if the evidence can come in now at a later time. That’s one of the things we will learn when the trial resumes on the 27th of June is whether the defense ends up calling Benitez as a witness and whether at that point Mr. Couzens would able to bring up the evidence he raised on Thursday. Judge Fall only ruled it inadmissible due to it being hearsay.
[quote]That has not been my observation of the legal system.[/quote]
But if one is observing the trial through the lens of an intense dislike of the DA, one would see things a certain way, no?
[quote]It looks like what DDA Couzens was trying to do was prejudice the jury against the witness before the witness had a chance to testify. Hence, yes it does look like a dirty trick.[/quote]
Now this is an interesting point, and well taken I think. And I believe, lyah, your assessment of how impeachment works is essentially correct.