This appeal raises a host of issues but the most interesting concern the trial court’s decisions to: (1) prohibit defense counsel from cross-examining the State’s cooperating witnesses, all of whom were testifying in the hopes of receiving reduced sentences for themselves, about the maximum penalties they faced; and (2) allow the State to use a letter police found in an envelope marked “for my lawyer” to impeach Williams’s alibi witness.
Cross-examination of cooperating witnesses
At trial, the State called 7 cooperating witnesses to testify against Williams. All of them were in state or federal custody, and they testified with the hope that their testimony would earn concessions from the Government. Williams challenged limitations placed on his ability to cross-examine 5 of them (one of them, an accomplice). He was permitted to ask them about what they hoped to receive in exchange for testifying, about the charges they faced, and about their plea deals. He was also permitted to elicit the fact that the witnesses faced “substantial time.” But the trial court steadfastly refused to allow Williams to ask about the maximum federal penalties several witnesses faced on the theory that the information was irrelevant, and the federal sentencing guidelines would confuse the jury. It refused to allow information about the maximum penalty Williams’s accomplice faced because that would signal to the jury the penalty that Williams himself faced.
The Sixth Amendment guarantees a defendant the right to confront and cross-examine the witnesses against him, but a trial court may limit that right when concerned about prejudice, confusion of the issues and so forth. The key cases allowing cooperating witnesses, who may be more interested in helping themselves than in telling the truth, to testify against a defendant are Hoffa v. United States, 385 U.S. 293 (1966) and State v. Nerison, 136 Wis. 2d 37, 401 N.W.2d 1 (1987). Both hold that the defendant’s due process rights are protected as long as there is (1) full disclosure of the agreements with the witnesses; (2) the opportunity for full cross-examination of those witnesses concerning the agreements and the effect of the agreements on their testimony; and (3) an appropriate cautionary instruction to the jury about the credibility of cooperating witnesses. What they don’t explicitly require is that the defendant be permitted to ask the witness the maximum penalty he faced without a plea deal, and that’s why the court of appeals affirmed. Slip op., ¶40.
Williams’s reply brief highlights the real problem. Jurors must be able to assess the credibility of the cooperating witnesses. In order to do that they need to know the magnitude of the sentence reduction the witness believes he earned. That’s how they understand the strength of the witness’s incentive to lie. They don’t need to understand the federal sentencing guidelines. The meaning of “substantial penalty” is in the eye of the beholder and doesn’t speak to the potential reduction these witnesses were expecting. See authorities cited in Williams’ reply, none of which are addressed by the court of appeals’ decision.
Use of illegally-obtained evidence to impeach a witness
While Williams was in custody the police obtained a warrant to search his cell for all documents, pictures and so forth with the hope of finding a picture of the stolen watch that led to shootings. When they patted down Williams they found an envelope marked “for my attorney,” seized it, opened it, and found a letter apparently addressed to Williams’ girlfriend allegedly telling her what to say in order to provide an alibi for him. The trial court originally suppressed the letter, but then allowed it in on the theory that the State could use it to impeach the girlfriend’s testimony. The court of appeals affirmed on that basis: Under Kansas v. Ventris, 556 U.S. 586, 594 (2009), where the State obtains a defendant’s confession in violation of the Sixth Amendment it may still use that confession to impeach the defendant at trial.
The court of appeals draws a questionable conclusion: “The letter, itself, however, clearly was not for Williams’s lawyer. It was addressed to ‘Big Homie’ and is telling his alibi witness what she should testify to. The letter was not protected by the lawyer-client privilege. . . ” Slip op. at ¶28. How could anyone know this without first violating the lawyer-client-privilege? And how could the court of appeals conclude this without knowing why the letter was in an envelope marked “for my lawyer.” Maybe Williams wanted to ask his lawyer for advice on whether to send the letter. That would fall within in § 905.03(2). The trial court found a violation of the Sixth Amendment. The only way around it is via Kansas v. Ventris. In Ventris, the evidence obtained from the defendant was used to impeach the defendant’s trial testimony not the testimony of another witness. Also, something we don’t know from the opinion is whether Williams’ girlfriend ever even received a copy of the letter.