Davis v. United States

TERRY, Associate Judge,

concurring:

I agree that the trial court’s order should be affirmed, and I join without hesitation in the opinion of the court, except for footnote 6. With all respect, I think my colleagues deal too gently with defense counsel.

The record before us plainly shows — to me, at least — that it was defense counsel who actively procured the sudden absence of the complaining witness. Given the facts of the case, the most reasonable inference is that counsel’s pursuit of Mr. Watson through the hallways of the courthouse and his conversation with him about the outstanding bench warrant were part of a calculated maneuver to intimidate or frighten Mr. Watson into disappearing. That this maneuver was successful resulted in the mistrial, which I agree was based on manifest necessity. The blame for the mistrial lies squarely on defense counsel and no one else. I agree with my colleagues that there is no need for a formal finding of wrongdoing or unethical conduct on counsel’s part. Nevertheless, I think defense counsel’s conduct was outrageous, and I am not willing to let him off the hook without at least a few words of disapproval.