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New trial in the interest of justice required because false testimony clouded the crucial issue of credibility

State v. Daniel D. Bolstad, 2013AP2139, District 4, 7/17/14 (not recommended for publication); case activity

The court of appeals orders a new trial in the interest of justice because the prosecutor’s unwitting use of false testimony as critical evidence to establish that Bolstad was lying so clouded the crucial issue of credibility that it prevented the real controversy from being fully tried.

Bolstad was convicted of attempted sexual assault of M.S., whose testimony about the incident was corroborated by Jason, who was present in the house, and Christina, M.S.’s sister, who lived across the street. Bolstad denied the conduct in his trial testimony. At trial the prosecutor relied on the mutually corroborating testimony of these three witnesses to persuade the jury that Bolstad’s testimony was unworthy of belief.

Postconviction, M.S. and Christina and Todd Mitchell, a witness who didn’t testify, admitted to both defense investigators and the police that they and Jason had lied about who was present and certain aspects of what happened to protect Christina and Todd from the adverse consequences of him violating the restraining order she had against him. While M.S. still said it was Bolstad who tried to assault her, she also asserted Jason had drugged and assaulted her on previous occasions.

The prosecutors unknowing, but extensive, reliance on the witnesses’ false testimony prevented the real controversy from being tried:

¶27   Here, it is now undisputed that M.S., Jason, and Christina all testified falsely, and it cannot seriously be disputed that this false testimony enabled the prosecutor to argue that the three must be telling the truth and, correspondingly, that Bolstad must be lying. From the start of this one-day trial, the prosecutor portrayed the case as a credibility contest pitting three people with no motive to lie against one person who had a clear motive to lie. In particular, the prosecutor spent most of his closing argument stressing two interrelated assertions that conflicted with Bolstad’s trial testimony: (1) that Todd Mitchell was not present at M.S.’s house during the night of the assault, and (2) that no one except Bolstad had a motive to lie. The prosecutor did not know it then, but it is now undisputed that both of these assertions are false.

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¶30  Additionally, … we observe that the prosecutor’s theory and closing argument depended on a third assertion that is now called into serious question. That assertion is that, not only were Mitchell and Christina not present, but also Bolstad was the only adult inside the house with M.S. at the time of the assault. The prosecutor used the now-admittedly-false testimony about Mitchell, combined with Jason’s testimony about being locked out, to demonstrate that only Bolstad was inside the house with M.S. at the time of the assault, further undermining Bolstad’s version of events. On appeal, however, the State fails to dispute Christina’s admission in her affidavit that she and Mitchell were inside M.S.’s house at the time of the assault. …

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¶34  We emphasize that we do not reverse simply because of the presence of false testimony. Rather, we reverse because, under the particular circumstances here, the testimony at issue played such a prominent role in the trial. As we have explained, the thrust of the prosecutor’s closing argument had a simple logic to it: (1) three people with no motive to lie testified truthfully in all respects, (2) the three people corroborated each other with respect to significant facts that could not be reconciled with Bolstad’s trial testimony, (3) as to those facts, Bolstad must have lied, and (4) if Bolstad lied about those facts, nothing else Bolstad told the jury deserved any weight. There is now every reason to believe, however, that this seemingly simple logic was based on false testimony.

A great result, necessarily fact intensive, but with a nice statement of the law governing the interest of justice standard. (¶¶23-26).

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