Mimesis Law
22 October 2021

Deciding Who Can Testify For Tyler Twombly

Apr. 27, 2016 (Mimesis Law) — The title of a recent  article at the Citizen sounds a lot like it’s just restating a rule rather than providing any news:

Defense can’t force prosecutor to give witness immunity

If you’re involved in the criminal justice system, it’s a pretty obvious statement. Even if you aren’t, just thinking about it, you shouldn’t be surprised that’s the general rule.

If the defense could give its witnesses immunity, there’d be little incentive for every defendant’s closest family and friends not to take the blame with impunity. On the other hand, only giving the prosecutor the power to shield its witnesses from the legal consequences of their testimony probably doesn’t sit well with most people.

The facts of the case highlighted in the article raise some of those interesting issues:

A judge has ruled that the state cannot be compelled to give immunity to a man implicated but not charged in connection with the armed invasion of a Harvard Street apartment to steal drugs.

Defense Attorney Mark Sisti told a judge last week that Joshua Pike called his office and represented that he was an eyewitness to the underlying events and said that Sisti’s client, Tyler Twombly “had  nothing to do with the home invasion” and that neither of the people who purportedly committed the crime was Twombly.

It’s an interesting immunity situation, really. Pike isn’t just Twombly’s buddy or relative throwing a Hail Mary to try to help out, but someone already tied to the crime. On top of that, his eyewitness testimony is highly exculpatory for Twombly, the next best thing to a video of the offense showing Twombly wasn’t there. Unfortunately, it’s also highly inculpatory for Pike. What was he doing there at the time of the armed home invasion if he wasn’t a part of it?

Twombly’s lawyer latched onto the unfairness of the situation:

Arguing that Pike’s testimony would tend to prove his client’ innocence and represents “a highly material variance from the tenor of the state’s evidence,” Sisti claimed failing to give Pike immunity would deprive Twombly of his right to a fair trial. The defense further asserted not giving Pike immunity, amounted to prosecutorial overreaching, as the County Attorney’s Office only immunized witnesses who jibe with their theory of the crime.

It’s hard to disagree with that assessment. Tyler Twombly is charged with being part of the invasion. Pike was there and saw it. He said Twombly had nothing to do with it. Unless the prosecution is proceeding on some sort of theory of culpability in which Twombly should be convicted despite not being involved, that sure seems like a material variance from the tenor of their case.

It also wouldn’t be a very fair trial if the guy who can say Twombly didn’t do it never takes the stand for fear of being prosecuted himself. Although it’s the rule, letting the prosecution immunize only those witnesses who help its case while effectively precluding the defense’s witnesses by refusing to do the same for them has a strong, fundamental sense of unfairness about it.

And yet the prosecutor disagrees:

Belknap County Attorney Melissa Guldbrandsen countered that the defendant does not have a Constitutional right to immunity for Pike, and further that the state is not obligated to immunize Pike under the due process clauses of the State and Federal Constitutions because Sisti failed to demonstrate that Pike’s testimony would be directly exculpatory or would present a highly material variance from the state’s case.

It’s the equivalent of the prosecution just saying “not so,” and given the circumstances, it seems like the prosecutor’s position ignores the facts. Pike said he was there and that Twombly wasn’t involved. That seems as directly exculpatory as testimony can get as well a highly material variance. Belknap County would be a strange place indeed if prosecutors proceeded on a theory of the case that the defendant had nothing to do with the crime and wasn’t either of the two people who actually committed it.

Somehow, the judge agreed with the prosecution:

O’Neill held that Sisti’s failed to show that Pike’s testimony would be “directly exculpatory” or be in stark contrast to the state’s theory of the crime. That standard reduced the chances of “cooperative perjury” between defendants and witnesses and that the court will not micromanage prosecutorial decisions.

He could not conclude that the based on the testimony the defense expects to elicit from Pike and the evidence the state intends to present at trial, O’Neill wrote, that Pike’s testimony would prevent Twombly from being convicted on one or more of the felony charges pending against him.

“Moreover, the defendant has failed to establish that Mr.  Pike’s testimony is irreconcilable with the state’s case. Indeed, without ascribing any particular motive to Mr. Pike here, the court would note that is conceivable than an individual implicated in an alleged criminal conspiracy would have some incentive.

Looking at some case law, it seems that New Hampshire’s standard regarding a defendant’s right to obtain immunity for his witnesses does require a showing that the testimony would be directly exculpatory or present a highly material variance from the tenor of the State’s evidence. It also requires a showing that the prosecutor’s refusal to immunize a defense witness denied the defendant a fair trial. As Twombly’s lawyers argued, those factors seem quite present given the facts:

The conspiracy charge alleges that Twombly agreed with Joshua Pike and another unidentified person to commit armed robbery and that Pike agreed to open the door at 48 Harvard Street allowing Twombly and another co-conspirator to enter while wearing hoods and bandanas to cover their heads and faces. In furtherance of the conspiracy, Twombly was allegedly armed and used the firearm to either shoot or strike the victim in the back of the head in the act of stealing controlled drugs.

If everyone agrees Pike was there and involved, then the ruling seems that much more disconnected from the facts if Pike is now saying Twombly was neither there nor involved. A few of the judge’s other comments explain what’s probably really going on, however.

Although the standard is more concerned with the testimony the witness will provide and the impact on the fairness of the trial, the judge’s comment about the standard reducing the chances of “cooperative perjury” between defendants and witnesses seems like the real driving force in pretending Pike’s clearly exculpatory testimony isn’t exculpatory or central to Twombly getting a fair trial.

It would suck if Pike and Twombly were both guilty as sin and Pike got immunity, taking the blame and clearing Twombly at the same time, perhaps resulting in no consequences for either of them. Of course, it would also suck if Pike opened the door for two totally different guys and Twombly had nothing to do with it, something the jury may never hear due to the fact Pike likely will not testify absent immunity.

The judge’s comments about the testimony not preventing Tyler Twombly from being convicted on one or more of the felony charges pending against him seems like a good indicator that the judge simply doesn’t believe Pike, something further supported by the judge’s incomplete comment about Pike’s incentive as a co-conspirator.

Just looking at the legal standard, it seems Pike should be the perfect candidate for immunity. Looking at the facts, though, there’s plenty of reason why a court might not be so inclined to do so. It appears that the judge in Twombly’s case latched onto those reasons and let it drive his application of the standard.

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