Vincent Smothers is a professional hit man already convicted of eight murders. He now says that he killed the four victims Sanford took the rap for. There doesn’t appear to be any reason for Smothers to lie about it: the hit man is not known for his compassion toward others. Smothers even waived his attorney-client privilege with former attorney Gabi Silver so Silver could testify on Davontae Sanford’s behalf, and say under penalty of perjury that Smothers told her he was responsible for the killings, and that Sanford didn’t help him.
Prosecutors, however, are trying to block Silver’s testimony, which could free a wrongly imprisoned teen, arguing that it would be hearsay. While Sanford’s attorney, Kim McGinnis, says she has done everything in her power to convince Smothers to testify himself, he refuses, leaving it up to her.
Hearsay is testimony where the witness is asserting facts not within his or her own experience, that have been relayed to the witness by another party. It is considered inherently suspect for evidentiary purposes, since the witness can’t be cross-examined about the facts themselves, but only on what was said to her. There are exceptions to the non-admissibility of hearsay, but each state has its own versions of the rules, and the Michigan prosecutors say Michigan’s exceptions don’t permit Silver to testify. Maybe they are right, though the test—that the proposed statement must have circumstantial guarantees of trustworthiness to be admissible—sure seems to be met by Smothers’ statement. Why would he lie?
It isn’t as if the evidence against Sanford is overwhelming. He confessed, something 14-year-olds have been known to do when they are really innocent, and a witness testified in his original trail that she recognized his voice. I suspect that prosecutors will be successful in keeping Smothers’ confession out—but why would they want to? A prosecutor’s duty isn’t to win, or keep prisoner’s locked up, but to see that justice is done. It is a victory for a prosecutor every time the system gets it right, and an abject failure every time a guilty defendant goes free…or an innocent defendant goes to jail.
If the judge is inclined to let Silver testify regarding the hit man’s confession, the prosecution should not object. It serves justice for her to speak, and to let a jury weigh the statement’s reliability and Sanford’s guilt based on Silver’s testimony. For a prosecutor to argue that the rules of evidence technically prohibit a possible route to justice when a teenager’s future is in the balance is a perversion of legal ethics.
And if the prosecutors believe Silver, who believes Smothers, they shouldn’t even require a trial. They should petition for Davontae Sanford’s release themselves. From the ABA’s Rules of Professional Conduct, Rule 3.8, “Special Responsibilities of a Prosecutor”:
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
It is true that Michigan’s Rules don’t include these provisions, but that only means that the prosecutors don’t have a black and white rule requiring them to make sure innocent prisoners are released. All the ABA rule does is articulate what prosecutors are supposed to know anyway: their job , and their ethical duty, is to see that just results are reached by the criminal justice system, and not to argue that you can’t get there from here.