2012-02-16 / Editorial

Scattering Seeds

BY JOHN A. MURPHY jamurphy@jamestownlawyer.com

The truth sometimes does come out. Not always, but sometimes.

Many believe that court trials are intended to find the truth. That certainly is a desirable objective. However, given the frailties of human nature, and limiting factors built into the judicial system, it is an objective probably less often achieved than many would hope.

This is a story of a trial in which some truth was found. It is interesting to see how much chance rather than diligence and skill led to that result.

The defendant was accused of a serious crime. He pled not guilty, and, at trial, testified that he could not have committed the crime because he was elsewhere when it was committed.

The testimony came as a surprise to the prosecution. Ordinarily, the opposing parties in a criminal trial know in advance what the other side’s evidence will be, and thereby have an opportunity to prepare for it. In this case, for technical reasons, the prosecution was not privy to the evidence that this defendant intended to offer. When that evidence was presented, the prosecution was left with very little time to investigate and respond.

The defendant’s alibi evidence came in through the testimony of two witnesses. The defendant himself testified as to his presence at a friend’s place of business at a location far removed from where the criminal activity alleged by the state was then occurring. Secondly, the defense presented a corroborating witness who said that he saw the defendant at that place of business at that time.

And how did the corroborating witness remember where he was and who he saw so many months before? Because he was a state inspector of businesses, who kept detailed records of his inspections. He did remember seeing the defendant at a business he regularly inspected. When he checked the records of his inspections of that business, lo and behold, there it was: an inspection report, made on the date and at the same time of the crime.

That was the daunting evidentiary situation confronting the prosecution. Two witnesses, one of them a state official with a contemporaneously made record to back up his testimony.

On cross-examination, the first thing the prosecutor did was to ask the state inspector to explain his record-keeping practices, and show the file in which his records were kept. A voluminous stack of records was produced: more than 100 single sheets with hand-written entries on a printed form, each one bearing a date, time, and the address of the business being inspected.

The prosecutor asked the judge for time to look this file over. The judge granted a brief, overnight recess, noting that the evidence had come in as a surprise, without the usual advance disclosure.

The prosecutor and his assistant began looking at the inspection forms produced by the alibi witness. They “knew” that this evidence had to have a flaw in it. They believed that the defendant definitely had been at the scene of the crime, and not where the alibi witnesses placed him. Carefully they inspected each inspection report, noting how the printed form on which each report had been entered appeared to be originally made on a Xerox machine.

As they re-examined each report, and repeatedly stacked them up, they noticed that the key report, the one that made it possible for the state inspector be certain as to when and where he saw the defendant, was ever-so-slightly different from the others. The little dark stripes at each end of all of the forms did not appear on the key form.

A call was put into the Xerox company. An emergency consultation was requested with a Xerox engineer. The engineer told the prosecutor that each copy machine leaves unique marks on the paper as it makes a copy. This allows an expert to tie particular copies to a particular machine.

To make this already too long story short, it turned out that the key report, the one upon which the alibi testimony had been based, was made on a Xerox machine not purchased by the state of Rhode Island until well after the crime.

The prosecutor presented this rebuttal evidence. The defendant’s alibi was smashed; he was convicted, and given a long prison sentence.

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