Saturday, October 06, 2007

Et Tu, Brute - NOT!

United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007) (Jacobs, Walker, Calabresi, CJJ)

Waline Brutus testified at her drug importation trial. During the charge, Judge Glasser instructed the jury, in relevant part, that she had a “deep personal interest in the outcome of the case” that “creates a motive to testify falsely.”

Following in the footsteps of its recent decision in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the court held that this instruction was error. This case is significant because there had been a tension between Gaines and United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), which upheld very similar language. Here, the court very neatly cuts through the confusion and overrules Tolkow, creating a “prophylactic rule” that any “instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence” and is error. When the defendant testifies, the district court should simply tell the jury to evaluate her credibility in the same way it judges the testimony of any other witness.

Unlike the defendant in Gaines, however, Brutus did not win her case. The government, which bore the burden of establishing harmlessness beyond a reasonable doubt - the standard for a preserved constitutional error - did so. The circuit viewed this as “not a close case” and characterized Brutus’ trial testimony as “manifestly incredible.” In fact, Judge Glasser called it “the most incredible perjury I’ve ever heard in any case I’ve ever tried in this court.”

Too bad. Brutus, who has two small children, received a ten-year sentence, and will be a guest of the American taxpayers for at least eight and one half years before being deported back to Haiti. Perhaps if she had won her appeal something shorter could have been negotiated for her.

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