dangerous tactic and Thomas Felton’s life hung in the balance.
“It’s inconceivable to me that the police, the coroner, and the prosecuting attorney did not see the disconnect between the murder weapon and the coroner’s findings,” Justice Juan Escarrez opined. He was a conservative and a key vote.
“I agree with you, Your Honor, at least as to the coroner and the prosecutor. The police officer, Sam Jeffries, who was actually the head of the task force, testified that he believed the bowie knife he found was the murder weapon. He was not at the autopsy and he never read the autopsy report. I have no evidence to quarrel with that testimony. The coroner, however, had to know about the discrepancy between the physical evidence and his findings. And I believe it is a reasonable inference that the prosecuting attorney knew since she never asked the coroner at trial if the bowie knife was the murder weapon, and she positioned his testimony in such a way that he was long gone when Captain Jeffries opined that it was.”
“So you believe this is a Brady v. Maryland situation?” Justice Ray Blackwell, the newest member of the court, asked.
“Yes, sir. Brady held that if a prosecutor withholds material evidence, whether innocently or not, that is grounds for a new trial.”
“But the evidence was not withheld. It was right there for the public defender to see. He had the coroner’s reports and he had access to the murder weapon just as you did, Mr. Tobin.”
“That’s true, Your Honor, but he did not appreciate the discrepancy in the evidence. Should a man be put to death because the state attorney and the coroner succeeded in putting one over on the public defender? I don’t think that’s what Brady stands for.”
For his part, Mitch Jurgensen kept hammering away on the fact that the report could have been mistaken.
“It was the coroner’s testimony combined with Captain Jeffries’s testimony along with the other evidence in the case that caused the jury to convict. This court should not go behind that decision.”
“Even when we know this was not the murder weapon?” Justice Margaret Arquist, the only female member of the court, asked.
“You don’t know that, Your Honor. The coroner isn’t here and his reports were never evidence in the original case.”
“The record is clear that the coroner testified from his reports, not from his memory, and it’s inconceivable, at least to me, that the coroner would make such a blatant error in the reports of both victims. That evidence combined with the way the prosecutor presented her case, as Mr. Tobin pointed out, creates a pretty compelling case for his client, doesn’t it?”
“I respectfully disagree, Your Honor.” It was all Mitch Jurgensen could say.
Justice Arquist wasn’t through, though. “Mr. Tobin, I still have some concerns because of the fingerprints on the bowie knife and the evidence that this knife or one almost exactly like it was involved in a previous attempted murder. We are dealing with a serial killer situation and we have to be very careful.”
“Yes, Your Honor. I have the same concerns myself although my client was never charged with being a serial killer. Even if there is a basis here for a new trial, shouldn’t we look at the bigger picture even if the law doesn’t provide for that? The answer I come up with is yes and no. Yes, we should be particularly careful in evaluating the evidence but no, we should not apply a different standard. Should the presumption of innocence be any different when a man is being accused of a crime which may be a part of a series of crimes? Should he be entitled to less due process? On the other side of the dilemma are these questions: If the evidence at trial was contrived, what about the evidence found at the scene? If the bowie knife wasn’t the murder weapon, is it reasonable to believe that the killer left it there? Or is it more reasonable to believe that the police, and it could be just one person, put the knife there with Felton’s fingerprints on it since they already had surreptitiously obtained his prints on a previous visit to his apartment? Those are questions neither I nor this court can or must answer but in considering the bigger picture of the seriousness of this particular case, perhaps they should be part of the analysis.”
It was a highly unusual oral argument. They were way outside the evidence in the case. However,