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Media Alerts - Glenn v. Wynder, District Attorney of Allegheny County - Third Circuit
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February 21, 2014
  Glenn v. Wynder, District Attorney of Allegheny County - Third Circuit
Headline: Not Granting a Mistrial for Impeached Testimony is Not a Violation of Rights under Due Process Clause of Fourteenth Amendment

Area of Law: Criminal Procedure

Issues Presented: Whether not granting a mistrial for contradictory testimony given by a witness is a violation of the defendant's rights under the due process clause of the Fourteenth Amendment and whether the defendant's counsel was ineffective for not moving to strike other evidence that referred to this witness's identification.

Brief Summary: Glenn was convicted of murder. At trial a witness repeatedly contradicted herself and, instead of a mistrial, the testimony was stricken from the record and the jury was given instructions that her testimony should not be used for any purpose in deliberation. The Third Circuit affirmed holding that this did not violate the defendant's rights under the due process clause of the Fourteenth Amendment because the instructions were enough to purge the record of the taint of the testimony especially because the witness had already been heavily discredited on cross-examination and there was ample other evidence of guilt. The trial counsel was not ineffective for not moving to strike other references to the witness's identification of the shooter because objectively the evidence was arguably admissible. The evidence could be used to explain the police's course of conduct in the investigation and the jury was not likely to give much weight to any of the witness's statements after being successfully impeached by defense counsel. There was ample other evidence to convict so the lingering references to the witness' identification were unlikely to have a material effect on the finding of guilt.

Significance (if any):

Extended Summary: This appeal centers on the testimony given by Georgianna Cotton at trial. She testified that she saw the defendant shoot William Griffin. Her testimony was riddled with contradictions and she was impeached by the defense on cross-examination. After an in camera with the attorneys and trial judge she again testified but this time said that she did not see the defendant shoot Griffin but only heard shots and saw men fleeing. Again on cross-examination she contradicted herself and was impeached. The trial judge denied the motion for a mistrial but the entire testimony of Cotton was stricken from the record and the jury was given instruction to disregard her testimony and not rely on any of it. Other incriminating evidence was presented and Glenn was convicted.
Glenn filed a Petition for a Writ of Habeas Corpus and was denied but an appeal was granted on two issues. The first issue was whether the trial court violated the defendant's due process rights when it refused to grant a mistrial and instead struck the testimony from the record. The second issue was whether, after the testimony was stricken, trial counsel was ineffective in not moving to strike other evidence that referred to Cotton's identification that the defendant was the shooter.
The Court begins the first analysis by determining if Glenn was deprived of a fundamental element of fairness in his trial. It need not have been perfect, only fair. The Court rejects Glenn's claim that the judge's instructions could not purge the record of the taint of the testimony and his wishes to set aside the presumption that jurors follow the instructions given by the Court. It distinguishes Glenn's case from three others where it found that the curative instructions were not enough. The first case involved evidence that was not disclosed to the defense, had the credibility of properly admitted evidence, and clearly contradicted the defendant's argument so that the jury could not possibly ignore it whereas here the testimony had already been cast into doubt by cross-examination. The second case involved a statement by a co-defendant which was not revealed until closing arguments and violated the defendant's Confrontation Clause rights whereas here the testimony was subject to cross-examination and discredited. The third case involved the prosecutor asking the jury to decide the case based on emotion rather than evidence whereas here there was ample evidence and no plea to emotion.
The Court also dismisses Glenn's claims that his trial counsel was ineffective in not moving to strike all lingering references to Cotton's identification of the shooter making the trial court's striking of the testimony meaningless. The Court first determines that five of the six pieces of evidence that Glenn wanted to have stricken were procedurally defaulted because he failed to identify the claims in his Post Conviction Relief Act petition and the claims are not substantial so they are not excused from default. Next the Court, using the two-part Strickland test, analyzes the final piece of evidence, a photo array in which Cotton identified Glenn. The Court finds that the trial counsel's performance did not fall below the objective standard of reasonableness because it was arguably admissible to explain the course of the police investigation. It was also not prejudicial because of the successful attack on Cotton's credibility and the strength of the other evidence.
The judgment is affirmed.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/124333p.pdf

Panel (if known): Ambro, Smith, Chagares, Circuit Judges

Argument Date: November 21, 2013

Argument Location: Philadelphia

Date of Issued Opinion: February 20, 2014

Docket Number: No. 12-4333

Decided: Affirmed

Case Alert Author: Cheri Snook

Counsel: Rusheen Pettit, Rebecca D. Spangler for appellee; Adam B. Cogan for appellant

Author of Opinion: Judge Smith

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 02/21/2014 12:13 PM     3rd Circuit  

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