A divided state Supreme Court has intervened in the challenge of a murder conviction to send a message to prosecutors that they have a duty to make sure witnesses in criminal cases are forthright about cooperation agreements, even informal agreements that are only inferred, tacit or implicit.
The minority justices in the 4-3 decision, all former prosecutors, complained in a dissent that the majority opinion has the potential to deprive prosecutors of an effective law enforcement tool: the ability to reward witnesses who testify truthfully — in the state's view — with lenient sentences in their own cases.
The decision arose from a post-conviction effort by Darnell Moore to set aside a jury's guilty verdict against him in 2012 for the murder of a Norwich man. A key prosecution witness against Moore was Samuel Gomez, who testified that he drove Moore to and from the scene of the crime and gave him the gun he used to shoot Namdi Smart.
Moore was sentenced to 53 years in prison. After testifying in support of the state's case, Gomez, who had been charged as an accessory to the murder, was given a suspended sentence.
Although the suspended sentence given Gomez may have been an outlier, leniency for cooperating witnesses is a common practice in criminal trials everywhere and one well-known among potential witnesses.
The issue at the center of the Supreme Court's decision was whether whatever understanding Gomez had amounted to a cooperation agreement with the prosecution — formal or otherwise — and whether the prosecution was obligated to inform jurors so they could better assess Gomez's motivation when he testified.
Moore, arguing to reverse his conviction at a habeas corpus hearing, claimed there had to have been an implied agreement because no other conclusion can be drawn from the leniency shown Gomez. More importantly, Moore said the prosecution should have corrected Gomez' testimony to the jury when he denied the existence of an agreement, formal or otherwise.
At Moore's trial and later at his effort to reverse the verdict, everyone associated with Gomez' decision to testify — Gomez, his lawyer and the prosecution team — denied that that there was an agreement or any understanding, formal or informal, that he would be rewarded with leniency in his own case.
Based on those denials, the habeas court denied Moore's petition to reverse the conviction.
The Supreme Court majority, in a decision released Monday by Justice Andrew McDonald, did not rule on Moore's appeal of the habeas decision. Instead, the court returned the case to the habeas court with instructions to conduct fact finding to determine whether there was an implicit plea agreement and whether prosecutors should have told the jury about it.
The court rejected Moore's argument that the suspended sentence, in itself, was evidence of a cooperation agreement. But the majority said the policy of the New London County State's Attorney's office of "communicating to cooperating witnesses what they can expect in exchange for their testimony" could amount to an implied agreement.
The New London office policy, one practiced across the state, was described in a case that reached the Supreme Court after Moore's conviction. Under the policy, which applies to "virtually all cases," prosecutors would make no promises to a cooperating witness, but would inform them that, if they testify truthfully, their cooperation would be made known to the sentencing judge, probably to the witness' benefit.
The majority said it has two concerns about the policy.
"First, the practice motivates a cooperating witness to testify for the state but withholds the basis for that motivation from the jury. Thus, the jury is deprived of the opportunity to properly and fully assess how the witness' credibility is affected by that motivation," the court said.
"Second, the practice further impacts the usefulness of testimony that is already considered questionable. For more than 150 years, this court has recognized 'that (accomplice) testimony is of a suspicious character .. . and calls for scrutiny on the part of the jury . . . '," the court said.
