and efficient administration of justice, and the potential prejudice to the truth-determining function." Id.
Defendant's proffered alibi testimony was inherently suspect, in major part because it arose only on the eve of the second trial. See Taylor, 108 S. Ct. at 655; Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 1896, 26 L. Ed. 2d 446 (1970). Defendant had no satisfactory explanation for his failure to notify counsel of the potentially favorable testimony and to have requested the witnesses' appearance at the first trial. According to counsel, defendant had "difficulty" locating the witnesses until just before the second trial. The Court found that explanation highly dubious, considering that the witnesses were defendant's brother and a friend. Indeed, it would be difficult to imagine a satisfactory explanation for the failure of those witnesses to have come forward with purportedly exculpatory testimony at the first trial.
Defendant testified before the undersigned both at his pretrial detention hearing and in his first trial. His testimony on those occasions was inconsistent and was not credible. (See Pretrial Detention Order, p. 3.) Defendant appeared to adjust his story according to the audience.
(Compare Tr. Nov. 1, 1990, with Tr. Jan. 10, 1991.) The Court concluded that defendant had perjured himself at both prior appearances. Based on that assessment and the overall circumstances, the Court rejected defendant's explanation for the late disclosure of the supposed alibi witnesses. The Court concluded that the proffered testimony would have been perjurious and that defendant was seeking to "sandbag" in an attempt to prevent the Government from challenging the alibi testimony effectively at trial. Balancing those factors against defendant's right to present evidence, the Court concluded that excluding the testimony was appropriate.
See Taylor, 108 S. Ct. at 656.
The Court feels obliged to note that the appellate opinion evidences a troubling lack of deference for this Court's implicit assessment of the facts. The Court of Appeals implies that this Court somehow reached its conclusion for improper or inadequate reasons, although the record demonstrates the existence of proper reasons -- including the citation of the controlling Supreme Court case from the bench. The Court also is troubled that the Court of Appeals appears to have been so affected by the trial court's rather bland comments to defense counsel. Those statements were purely and simply a matter of professional courtesy; the undersigned did not want the record to reflect that defense counsel was considered personally responsible for coming up with supposed alibi witnesses just before a second trial. Furthermore, the finding of good faith on the part of counsel implicitly conveyed the Court's belief that it was the defendant who acted in bad faith. The Court saw nothing to be accomplished by stating that belief directly on the first morning of the second trial.
Stanley S. Harris
United States District Judge
Date: MAR 2 1993