Prosecutors defend false testimony as ‘truthful, but inaccurate’

Lynne Marek

September 21, 2009

Federal prosecutors in Chicago have asked a judge to reconsider her ruling last month that four convicted drug traffickers deserve a new trial because prosecutors engaged in misconduct.

The prosecutors from U.S. Attorney Patrick Fitzgerald’s office on Sept. 18 filed a motion for reconsideration in the case, telling U.S. District Judge Joan Lefkow that the government witness who she determined gave false testimony at the trial actually “was truthful, but inaccurate.” When taking into account additional evidence not cited in Lefkow’s decision and viewing the case as a whole, no finding of misconduct is justified, the prosecutors argued.

Lefkow, who is overseeing the case in the Northern District of Illinois, ruled on Aug. 26 that there was misconduct during the five-week trial because the government relied on testimony from a lead witness even after the defense showed it was erroneous. The witness, Senecca Williams, said two defendants conducted drug business in an apartment that one of them, Rondell Freeman, was renting at the time. But the defense presented evidence during the cross-examination of Williams that the other defendant, Brian Wilbourn, was sitting in a county jail during the time Freeman occupied the apartment. Assistant U.S. Attorney Rachel Cannon’s “dogged insistence” during her rebuttal that Williams’ testimony was truthful, even after acknowledging that his dates might be wrong, constituted misconduct, Lefkow wrote in her opinion.

Prosecutors in the case, including Assistant U.S. Attorneys Cannon, John Lausch, Sharon Fairley and Kruti Trivedi, are due to appear before Lefkow on the motion Wednesday.

Leonard Goodman, a solo practitioner in Chicago who represented Wilbourn, said the prosecutors should have stood up and acknowledged to the jury during the trial that Williams’ testimony was false. The government’s motion for reconsideration will fail because there’s no basis for it, he said. “It’s a placeholder motion,” Goodman said. “They’re basically trying to buy more time to come up with some basis.”

In the motion to reconsider, prosecutors contend that if the judge looks at the totality of evidence presented at trial, she will see that the jury was able to “draw the reasonable inference” that Williams was mistaken about the time periods in which drug activities occurred at the apartment and that the apartment was used prior to Wilbourn’s incarceration.

“Because arguments based on evidence in the record and reasonable inferences to be drawn therefrom are not improper, Williams’ testimony was sufficient to warrant the prosecutor’s argument that Williams’ testimony regarding incidents involving Wilbourn and Freeman at the Granville apartment was truthful, but inaccurate as to the dates,” the prosecutors wrote. “Based on this argument, a finding of misconduct would not be justified, even if in retrospect it was determined that the evidence should have been excluded based on lack of foundation.”

Lynne Marek can be contacted at lynne.marek@incisivemedia.com.