Mimesis Law
11 December 2017

DA Allison Palmer: Bolstering When The Testimony Stinks

December 19, 2016 (Fault Lines) — Across the country, prosecutors’ offices are changing. Politics and elections have changed the face of many offices. In the wake of 37 Harris County prosecutors being told their contracts were not being renewed with the incoming administration, perhaps more prosecutors should evaluate what the voters are seeing.

No, this isn’t a post about politics, but voters are speaking up and saying they want a change. Even bar associations and courts have started holding prosecutors responsible for win-at-all-costs tactics.

Now, a Texas appellate court is being asked to review another such tactic: bolstering. Attorney Frank Sellers represents Justin Riordan, whom he says was wrongfully convicted. Not only has new evidence tending to exonerate Riordan been revealed, but also District Attorney Allison Palmer is accused of improperly bolstering the state’s complaining witness.

Palmer is accused of vouching for her own witness’s credibility and interjecting her personal opinion throughout the trial. Additionally, Palmer called an “expert” witness who testified as to the truthfulness of the complainant whose credibility had been attacked with inconsistent statements.

“Prosecutors are prohibited from vouching for the credibility of witnesses or offering personal opinions of guilt during final argument,” the brief states. “Here, the prosecutor made her opinion that the complainant was telling the truth, a main theme of her [final] argument. She told the jury she personally believed the Appellant was guilty.”

Most prosecutors know that interjecting personal opinion is against the rules, yet many continue to do so. Simply put, lawyers are not allowed to vouch for the credibility of their witnesses and offer up their personal opinions. In essence, it is an attempt to impart a personal assurance of truth to the jury. While neither side is permitted to vouch for the credibility of her own witness, it is particularly distasteful when done so by a prosecutor.

Last week, Sellers explained that, as a representative of the State of Texas, DA Palmer “may not cloak a witness in the protective mantle of the state.” Doing so imparts the credibility of the state onto the witness, or as Sellers notes in the brief, “the power and force of government tend to impart an implicit stamp of believability to what the prosecutor says.”

The prosecutor carries the weight, force, and power of both the government and law enforcement behind her assertions. “Trust me, I’m from the government, and I’m here to help – I’m here to protect you from crime. You can believe me when I tell you this child is telling the truth and the defendant is guilty.” It’s as if the prosecutor is suggesting she has some inside information to which the jury may not be privy that assures the defendant’s guilt. It suggests there was additional evidence that was hidden from the jury via those pesky defense objections.

Yet, the rules exist for a reason. Good reason. Prosecutors may believe a person is guilty, but they have no personal knowledge. They have no specialized training in determining who might be a truth-teller. They were not present during the alleged offense to see what actually happened. They have biases and assumptions based not only on their work but also on inadmissible evidence such as prior arrests. And that’s why the rules exist.

Jurors are the exclusive judges of the facts. They determine who is credible. They decide who to believe. So why do some prosecutors think the jurors need help? In that win-at-all-costs mentality, prosecutors often seek to utilize expert witnesses as well. Sure, experts are allowed to assist the jury. But, they too are prohibited from commenting on the truth of a witness’s testimony. Yet, Palmer did just that: she called an expert to opine about the complaining witness’s truth-telling.

From prior reporting and transcripts of the trial, it was apparent that Palmer was faced with a child witness who had a tough time on the stand. Her testimony was inconsistent with her past recorded statements.

“The defense counsels, Shawntell L. McKillop and Jessica Skinner, and 51st DA Allison Palmer recessed a few times to remind the victim of her recorded statements, which she continued to change and deny. When the defense would catch her in these discrepancies, the victim would break down and cry inconsolably to the point she was finally released from the stand,” LIVE! reported Feb. 20, the day after the trial.

The prosecution used an “unreliable, irrelevant expert [witness] to ‘fix’ problems in its case, which amounted to commenting on [the child witness’s] credibility,” the brief states.

“The reason we have juries is so your peers can assess the credibility of the complaining witness,” Sellers said in an interview last week. Palmer’s commentary and the use of an expert witness to fix a bad witness should not have been allowed during the trial, he said.

Rather than simply allowing the complaining witness to testify and stand on her own merit, Palmer brought in an expert to fix the trial testimony that was significantly impeached. While it’s unclear what exactly the expert testified to, it is not uncommon for the prosecutor to bring “experts” from assessment centers to discuss the complaining witness and her testimony. Social workers, therapists, and doctors are used to help explain the trauma and behaviors of those children who are abused. But, allowed to go too far, these experts often end up opining they believe the child. After all, why else would they have treated the child?

Palmer may have thought it was cute and all, pulling one over on a lawyer who didn’t object to her antics, but it wasn’t. It was another prosecutorial abuse. Bolstering. Failing to follow the rules. Cheating to win. Seeking to introduce otherwise inadmissible evidence and opinion. Part of the win-at-all-costs mindset. If the witness can’t hold her own, she will help her out.

That’s just not how this is supposed to work. You know, fair trial and all.

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