Sunday, June 3rd, 2012

That’s What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had “lied on Mr. Tyrone Carthen.” Despite this, the district court refused to reopen the hearing.

The found no abuse of discretion in the admission of the hearsay. It found “significant indicia of reliability” in Cox’s statements accusing Carthen of assaulting her. Zavatsky interviewed her six times, and her interviews with other witnesses corroborated Cox’s claims. In addition, Cox bore a scar that was consistent with a would she had described. The reports that Zavatsky relied on were detailed and credible, and some were made under oath. Finally, Cox’s desire not to testify was “not an unusual reaction by a victim of domestic abuse.”

Nor was there an abuse of discretion in the district court’s refusal to reopen in the wake of Cox’s seeming recantation. Witness recantations are generally viewed with “utmost suspicion,” and here, the district court’s conclusion that Cox’s letter was not credible was sound given the considerable corroboration of her initial, contrary account.

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