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Limitations upheld in cross examining a cooperating witness about the sentencing guidelines


The appellants in U.S. v. Rushin were correctional officers at the Macon state Prison in Georgia who were charged and convicted of conspiracy to obstruct and obstruction of justice stemming from alleged abuses of prisoners and the subsequent cover ups while they were working as members of the Correctional Emergency Response Team, (CERT) which is a specially trained group responsible for responding to and controlling disturbances as the Macon State Prison. Of the three issues raised only one was addressed in depth by this opinion and that was whether the district court improperly limited the cross examination of cooperating witness in violation of the defendant’s Sixth Amendment rights. The case arose from the beatings of several inmates at the Macon State Prison by CERT members against certain inmates in retaliation for assaulting officers. The CERT members would then take the inmate to the medical unit and lie about how the inmates’ injuries were sustained.

Multiple members of the CERT entered plea agreements and cooperated with the government by testifying at trial. The defense counsel wanted to cross-examine the cooperating witnesses about their potential sentences had they not cooperated. The government requested a limitation on the defendants cross examining witnesses about to the specific numerical sentence that could have been imposed had they not cooperated as this would speak to the potential sentences that could be received by the defendants and encourage jury nullification.

The district court granted this motion explaining that the defendants were permitted to inquire into whether the cooperating witnesses about a plea agreement, that they face a more severe penalty prior to cooperating, and that the witness received or expected to receive benefits in exchange for their testimony (charges dropped or consideration of a sentence reductions). However, the defendants’ attorneys were not permitted to inquire as to the statutory sentencing range for charges against cooperating witnesses.

In upholding the district court’s limitation on cross examination into the potential sentence faced by the cooperating witnesses, the appellate court noted that the defendants could inquire as to whether cooperating witnesses otherwise face a more severe penalty or expected to receive a lesser sentence. The defendants counsel were able to argue that these reduced sentences created an incentive for the cooperating witnesses to “twist the truth in a way that supports what the government says transpired in this case.”

Given that the defense counsel could and did address the possibility that cooperating witnesses in a federal criminal trial had a motive to twist their story or lie, any probative value of information about the precise number of years a cooperator faced was slight. Because the federal sentencing range applicable to these witnesses would reveal the sentence ranger of the defendants the proposed additional examination could invite jury nullification. Additionally preventing this information would prevent likely confusion and convoluted “mini trials on the issue of sentencing alone because sentencing guidelines can be complex and at points confusing event to members of the judiciary and would almost certainly be both time consuming and confusing to juries who will often lack prior knowledge.

Judge Jordan concurred noting importantly that this holding is a narrow. It does not set any bright line rules and is limited by the facts of this case, including the proffer made by defense counsel about the wide-ranging questions they wished to ask about the application of the advisory sentencing guidelines. In an appropriate case it may be necessary to allow defense counsel to ask a witness how much of a break he expects to get in exchange for testifying for the government and may require questions about statutory penalties.

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