5/06/08 (CA):
Who Should Read This Boy's Testimony?
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Even though 15-year-old Demontre Carroll was shot to death before he could testify in a murder trial, the juries in the case will still hear his words.
At issue is who will read those words.
Prosecutors want the black teen's testimony, given at a preliminary hearing in December 2006, read to two juries by a male employee of the Riverside County district attorney's office, preferably by a black deputy district attorney.
The defense attorneys would rather have the testimony read by a female member of the court staff.
The two sides could argue before Superior Court Judge Patrick Magers today.
One expert said the disagreement brings up a unique legal issue, whether the gender or race of a testimony reader makes a difference in jurors' minds, that will eventually be decided by the judge overseeing the case.
"There really isn't any case law on this type of thing," said Norman Garland, a law professor at the Southwestern Law School in Los Angeles. "We've always said that you can have pretty much anyone read testimony, as long as the judge allowed it. The important thing is to get the testimony read to the jury, in whatever form that takes."
Garland said he is unaware of any appellate court ruling that would cover such a situation.
Three black defendants -- Robert McMorris, 19, and Julian McKee, 31, both of Banning, and Curlee Mitchell, 26, of Cathedral City -- have each been charged with two counts of murder in connection with the February 2006 deaths of Beaumont resident Vincent McCarthy, 33, and La Quinta resident Demetrius Hunt, 18, outside a Banning apartment complex.
McKee and Mitchell have also been charged with the special allegation of multiple murders, meaning they could be sentenced to life in prison without the possibility of parole.
Thirteen people, all suspected of being gang members, have been charged with murder in connection with the February 2006 killings. In terms of the number of defendants, it is the largest murder case in Riverside County history.
Prosecutors are using the longstanding legal theory of aiding and abetting -- a concept that holds all participants of a crime responsible for the "natural and probable consequences" of their actions -- to seek murder convictions against those present when McCarthy and Hunt were fatally shot.
Carroll was expected to be one of the prosecution's key witnesses and was moved by prosecutors to Las Vegas through a witness-relocation program. He was fatally shot outside the Nevada home, and a teen associate he knew from Las Vegas was arrested in connection with the killing.
Under the law, however, because defense attorneys were allowed to cross-examine him at the preliminary hearing, Carroll's testimony can be used at trial.
Preliminary-hearing testimony can also be used if the witness is too ill or unavailable to testify at trial. In some cases, if the witness is seriously ill and will likely not be alive for trial, the testimony can be videotaped and played at a later date.
Generally, those reading the testimony are told they cannot act out or attempt to mimic the voice of the witness and are simply to read the transcripts in a matter-of-fact tone. The same rules apply to defense witnesses who testify during preliminary hearings, but it's rare that the defense presents any witnesses or evidence at that stage of the criminal proceedings.
Supervising Deputy District Attorney Deena Bennett said it is important for the jury to hear Carroll's testimony read by a male because it would more closely reflect what the teenager said. The gender of the reader is more important than the race, she said, but her first preference would be for the reader to be a black male because he is closer to Carroll's demographics.
"If it were a female witness, then I would get a female to read the testimony," said Bennett, who has read testimony in court for other prosecutors.
She said the black deputy district attorney would better match the demographics of the witness.
Virginia Blumenthal, McMorris' attorney, said she wants a court reporter to read the testimony because they are trained to read transcripts with a neutral voice.
"You can read things, and you can put an extra emphasis on something without knowing it," Blumenthal said.
Blumenthal said she is worried that the juries can also be influenced because those who Bennett wants to read the transcripts hold positions of authority.
"That person becomes the persona of the witness," she said. "Those words will be coming out of the mouth of a deputy district attorney. They can carry more weight."
Bennett said she was asked to read testimony for a colleague about two years ago and the defense in that case unsuccessfully argued that she should not be allowed because, as a former cast member of the television series "Survivor," her celebrity would unfairly influence the jury.
It is common for court reporters to read back testimony during jury deliberations when the panel requests it, whether the witness is male or female. Bennett said that is a different situation because the jury has already heard the witness testify directly and the court employee is simply refreshing their recollection.
Garland, the law professor, said some lawyers have suggested that actors be hired to read testimony, although they are prohibited from acting out as they do it.
"In the end, anyone can read the testimony with the discretion of the judge," he said. "I really see no benefit one way or the other. It is pretty much up to the prosecution or defense, depending on whose witness it is."
With Thanks, PE,2008
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