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Judge's Bad Call on Cross-Exam Gets Defendant New Trial

By William Peacock, Esq. on October 23, 2013 | Last updated on March 21, 2019

Cross-examination is fun. You ask a series of rapid-fire questions, ones that you hopefully know the answers to (surprises are rarely a good thing), and attempt to undermine the witness's testimony, either by catching him in an outright lie, or by exposing weaknesses in his story.

Your quest to make the witness look like a jackass in front of the jury is guaranteed by the Confrontation Clause of Sixth Amendment to the U.S. Constitution, incorporated to the states via the Fourteenth Amendment. This is all basic stuff, right? Stuff you'd learn in law school, maybe even during 1L year, right?

Sometimes, it isn't as easy in practice.

A Defendant Facing Murder Charges

Earlier that night, per a footnote in the court's opinion, Jerel Garner had been involved in a verbal confrontation with others in a Huntington, West Virginia night club, after someone made a pass at his girlfriend. He left with his girlfriend, but later returned. He was sitting in his car when someone pounded on his window.

The man who pounded on his window, Curtis Keyes, was allegedly unarmed. By the time the shooting ceased, he had been shot once, allegedly by Garner. Former Marshall football player Donte Newsome had also been shot and killed.

Ivan Clark, a friend of Newsome, also fired shots during the altercation, and would become the state's star witness.

Garner was charged with first-degree murder, attempted first-degree murder, voluntary manslaughter, wanton endangerment, and carrying a concealed weapon without a permit. He was convicted of the latter three offenses.

Fishing on Cross-Examination

Garner claimed self-defense. The State's star witness, Ivan Clark, was on the stand, and defense counsel was trying to undermine Clark's testimony that Garner fired first. After a handful of rambling questions, the court interrupted and stopped the cross-examination, ordering the prosecutor and defense attorney to take a brief recess and prepare questions for the remainder of cross-examination.

If that screams constitutional violation to you, well, you're smarter than a West Virginia judge, at least at that moment.

On appeal, that state argues that the court was simply trying to control defense counsel's rambling cross-examination, but as the court here notes, citing Supreme Court case law,

"Cross-examination is an adversarial undertaking. An important part of an adversarial cross-examination is the demeanor of the witness. An uncooperative witness may be viewed by the jury as less than honest. Similarly, a spontaneous reaction by the witness to an unexpected question could be quite revealing as to the veracity of the witness' answer."

Another West Virginia court also recently repeated the old nugget of wisdom that cross-examination is "the greatest legal engine ever invented for the discovery of truth." Requiring defense counsel to run his questions by the prosecutor first "rendered [cross-examination] utterly ineffective," and necessitates a new trial.

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