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Attorney’s words come back to haunt him

Attorneys need to be careful what they tell their witnesses, lest it come back to haunt them in the form of impeachment evidence.

An attorney’s opinions of a case are obviously not evidence relevant to that case.

Nevertheless, a divided 7th Circuit panel on Mar. 14 affirmed a defendant’s conviction despite the admission of his attorney’s poor opinion about the defendant’s prospects at trial.

The majority concluded the evidence was admissible to impeach the credibility of a witness who testified for the defendant.

Alexander Vasquez and two co-defendants, Joel Perez and Carlos Cruz, were charged in federal court with conspiring to possess cocaine with intent to distribute.

Perez and Cruz pleaded guilty, but Vasquez went to trial. His defense was that he was an innocent bystander.

At trial, Vasquez did not testify, but called Perez’ wife, Marina, as a witness.

Marina testified she was the one who was going to drive the car during the drug deal that led to the charges but that she asked Vasquez to go in her place. Her testimony concluded on a Thursday, and the case was adjourned for the weekend. When trial resumed Monday, the government recalled Marina for its rebuttal case.

Marina acknowledged Vasquez’ lawyer told her, among other things, that “everybody is going to lose” if they go to trial. The government also presented recorded jail conversations between Perez and Marina to the same effect.

The jury found Vasquez guilty. He appealed, but the 7th Circuit affirmed in an opinion written by Judge Terence Evans and joined by Judge Diane S. Sykes. Judge David Hamilton dissented.

Vasquez argued the jail recordings were inadmissible hearsay, but the court concluded they were admissible to show Marina’s bias.

Marina admitted on the stand she believed Vasquez’ attorney to be recommending Perez enter a plea but without admitting the role of Vasquez in the crime.

The court also held the recordings were admissible as prior inconsistent statements.

The court found Marina’s statements — that Vasquez was likely to be convicted — were inconsistent with her testimony it was her idea for Vasquez to take her place on the day of the drug deal.

However, the court acknowledged the jail recordings should not have been admitted for the truth of the attorney’s statements, but only for the purpose of impeaching Marina.

Nevertheless, the court concluded that, even if admission of the recordings for their truth was erroneous, the error was harmless, given the weight of the evidence against Vasquez.

Judge Hamilton dissented, concluding, “The jury heard evidence that the defendant’s lawyer had advised him to plead guilty and had said that if the three defendants went to trial, ‘everyone is going to lose.’ That evidence had no genuine probative value, and it is difficult to imagine more prejudicial evidence.”

Hamilton added, “after the jury had heard that Vasquez’s attorney had told him to take a plea and that he was going to lose at trial, that same attorney rose, with his credibility destroyed, to give closing argument on Vasquez’s behalf.”

Hamilton further rejected the majority’s conclusion that there was any inconsistency between Marina’s testimony and her recorded statements to her husband.

Hamilton proposed, “Let’s assume for purposes of argument that Mrs. Perez’s testimony about asking Vasquez to drive the Perez’s car to pick up her husband was true. Even so, anyone as familiar as she was with the evidence against both her husband and Vasquez … could reasonably worry that she might not be believed. If a witness’s expression of the view that a trial might come out the wrong way can be treated as inconsistent with the witness’s testimony for the ‘right’ result, we will see more cases with attempted impeachment like this.”

What the Court Held

Case: U.S. v. Vasquez, No. 09-4056

Issue: Was it improper to admit evidence regarding the defense attorney’s view of the case?

Holding: No. The evidence was admissible to impeach a defense witness.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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