NY Prosecutors Nailed on Murder-Indictment Shortcut

ALBANY, N.Y. (CN) – Finding that prosecutors created an impermissible “gravitational pull towards a guilty verdict,” a New York appeals court refused Thursday to reinstate an indictment obtained via unconstitutional shortcut.

As explained in the 6-page ruling, the question at issue is a novel one: “the offensive[] use collateral estoppel in a criminal prosecution.”

Courts have recognized that the government can invoke collateral estoppel in prosecutions to bar the relitigation of certain settled issues. In the case at hand, however, the state told a grand jury that the doctrine allowed them to return a murder indictment without going over all the evidence.

The indictment stems from a 2007 convenience store shooting in Albany County that left Deontint Davis critically injured for many months before he died.

Prosecutors initially convicted Duane Morrison of attempted murder. After Morrison was convicted and Davis died, the state advised a second grand jury that Morrison’s intent to kill had already been established “as a matter of law.”

“The People did not present any evidence to the grand jury related to the circumstances that led to the shooting or the identity of the shooter, submitting evidence solely on causation,” Thursday’s ruling says.

A judge later dismissed this second indictment, agreeing with Morrison’s attorneys that it was obtained with insufficient evidence.

A five-judge panel of the Appellate Division’s Third Judicial Department affirmed Thursday.

“While the People argue that their offensive use of collateral estoppel is fair play … this analysis overlooks the obvious and critical difference between an accused’s defensive use of this doctrine and a prosecutor’s strategic use of it against an accused,” Justice Robert Mulvey wrote.

Mulvey added that the state’s high court has “never approved of an instance of such offensive use of the doctrine against an accused.”

Prosecutors use of collateral estoppel should be only for “matters of expediency and economy and lacks a constitutional imperative,” the decision states.

Morrison’s attorney, Carolyn George, of Friedman, Hirschen & Miller, called the ruling “very solid” and that she expects prosecutors to appeal to the Court of Appeals.

George said that prosecutors tried to use the collateral estoppel short cut because they could not get witnesses to testify again in a case more than a decade old. “They are hanging on by a thread onto a bad jury presentment,” she said. “You can’t do that.”

Morrison, who is also called Big Homie in court documents, was sentenced to 29 years in prison for the original attempted-murder conviction. His first name appears to be misspelled as Duone in Thursday’s ruling.

Attorney George also noted that collateral estoppel would have denied Morrison the chance to testify in his own defense if he chose to, though she declined to say whether Morrison indeed wanted to do that, citing attorney-client privilege. During the trial, Morrison claimed he was with his girlfriend the night of the shooting.

Judges Karen Peters, Elizabeth Garry, Sharon Aarons and Stan Pritzker concurred in the ruling.

Albany County District Attorney’s office spokeswoman Heather Orth declined to comment other than to say the state will appeal.

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