Surrebuttal Evidence Improperly Denied, Conviction Vacated - U.S. Second Circuit
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Surrebuttal Evidence Improperly Denied, Conviction Vacated

In a criminal case pitting two New York City firemen against each other, the Second Circuit found that the defendant was denied a "fair opportunity to present a defense and a fair trial," when the district court denied him the chance to present surrebuttal evidence.

Background

Patrick Murray was tried and convicted of four counts related to the growing of marijuana plants: conspiring to manufacture and distribute marijuana, manufacturing at least 100 marijuana plants, manufacturing at least 100 marijuana plants near a school, and endangering a person while manufacturing marijuana. He was arrested after he drove up to a house in Queens, that was housing a marijuana grow operation. Murray had keys to the boiler room, and the room (within the boiler room) where the marijuana plants were located.

The evidence at trial came down to a battle of credibility between Murray, and his alleged co-conspirator, Matthew Cody. Cody owned the house where the marijuana plants were grown. Cody, who had a cooperation agreement with the government, testified that it was Murray's idea to grow marijuana in Cody's house, and provided the knowledge and tools to do so.

Murray, on the other hand, denied any knowledge that marijuana was growing at Cody's house. He testified that he had the keys to Cody's house because he was helping Cody renovate his basement, and was borrowing some tools. He stated that on the day of his arrest, he arrived at Cody's house, at Cody's request for help moving heavy items.

On cross-examination, the prosecution asked Murray about the frequency of his visits to Cody's house and the surrounding area. To rebut Murray's answers, the prosecution admitted cell phone tower information that showed it was pinged about 100 times. When Murray's attorneys wanted to introduce surrebuttal evidence, the request was denied. During jury deliberations, the jury asked for the cell phone tower information before finding Murray guilty.

Surrebuttal Evidence

On appeal, Murray argued that he was denied an opportunity to defend himself, and the Second Circuit agreed. Finding the government's argument that he could have presented evidence on direct examination unpersuasive, the court stated: "[Murray] had no reason to offer such evidence, and no way of guessing that the frequency of his presence in the area of Tower 11 would later become an issue in the trial." The court vacated his conviction, and remanded for a new trial.

This case is a lesson for both prosecutors and defense attorneys in the logical aspects of building a case. For defense attorneys, always make sure you lay the foundation for all aspects of your defense, especially in direct examination of the defendant. For prosecutors, don't be surprised if a defendant wants to rebut evidence that you proffer on cross-examination.

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