The D.C. Court of Appeals has thrown out the murder conviction in a 2003 slaying, ruling that prosecutors shouldn’t have been able to use previously recorded testimony by its star witness.
Don L. Brooks had been convicted of first-degree murder while armed and related weapons offenses for the shooting death of Brian Taylor in Northeast. He had been sentenced to 53 years in prison.
During Brooks’ first trial, which resulted in a hung jury, an eyewitness named Henrietta Harling testified that she heard Brooks arguing with Taylor “about turf” and later saw Brooks hold a gun up to Taylor’s head and shoot him, according to court documents.
Brooks was retried, and on the first day of testimony during his second trial in 2006, Harling initially went to court but could not be located before she was to testify.
The next day, the prosecution told the judge that investigators could not find Harling overnight and asked that she be declared “unavailable” so the transcript of her prior testimony could be read to the jury. After additional calls to the jail and five hospitals in the District didn’t turn up Harling, the jury heard her testimony from the first trial. Harling was the prosecution’s only eyewitness.
A witness’s unavailability is necessary for the inclusion of prior testimony, the appeals court stated. In order for Harling to have been declared unavailable, the government needed to have demonstrated that it made “reasonable, good faith efforts” to secure her.
The opinion said that the prosecution didn’t do enough to show Harling was unavailable because the prosecution didn’t propose additional efforts or ask for additional time beyond the overnight and next-day actions and because a prosecutor said he had “no expectation” of finding Harling.
The appeals court also said the mistake made by including Harling’s prior testimony was prejudicial, so it remanded the case back to the lower court for a new trial.
The U.S. attorney had argued that the defense waived its claim to object to the admission of the earlier testimony because a defense lawyer agreed to continue with proceedings. However, the appeals court refuted that argument because the defense had eventually agreed to “plod on” and did not intentionally give up its objection.
The U.S. Attorney’s Office is reviewing the decision and declined to comment further, spokesman Bill Miller said.
