Pass Interference: AZ Court Grants New Trial Based on Prosecutorial Interference w/Defense Witness Testimony Through No Testimony Clauses

The Compulsory Process Clause of the Sixth Amendment provides that

In all criminal prosecutions, the accused shall enjoy the right….to have compulsory process for obtaining witnesses in his favor….

So, let’s say that the prosecution enters into plea agreements with two potential defense witnesses. Furthermore,

Both plea agreements included the following “special term”: “Defendant agrees that he/she has no exculpatory information as to any codefendant(s).” Each agreement also provided that the defendant waived all double jeopardy and statute of limitations claims, so that “[i]f the defendant fail[ed] to comply with any of the provisions or conditions of th[e] plea agreement at any time before or after sentencing,” the agreement would “become void,” and the state would be “free to prosecute the defendant for all charges.”

Would such provisions violate the defendant’s right to compulsory process? In an opinion of first impression, the Court of Appeals of Arizona, Division 2, answered this question in the affirmative in State v. Sanchez-Equihua, 326 P.3d 321 (Ariz.App. Div. 2 2014).

In Sanchez-Equihua, Veronica Sanchez-Equihua was convicted on two counts of possession of a narcotic drug for sale and one count of possession of drug paraphernalia. This charges stemmed from cocaine that was seized from a car belonging to Jahziel Gutierrez and an apartment shared by Sanchez-Equihua and her husband Ivan Orantes-Lerma. Gutierrez and Orantes-Lerma thereafter entered into plea agreements with the provisions noted in the introduction. As a result, they refused to testify at Sanchez-Equihua’s trial despite indications that they might have provided exculpatory testimony.

After Sanchez-Equihua was convicted, she appealed, claiming that she was denied her rights to compulsory process and due process based upon these plea agreement provisions. The Court of Appeals of Arizona responded by first citing the key Supreme Court precedent:

The United States Supreme Court has recognized that the right to offer witness testimony and to compel witnesses’ attendance when necessary is so fundamental that it is incorporated into the Fourteenth Amendment’s Due Process Clause and therefore applies to the states…..”It is well established that ‘substantial government interference with a defense witness’s free and unhampered choice to testify amounts to a violation of due process.'” Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir.2005), quoting United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir.1998); see also Webb v. Texas, 409 U.S. 95, 97-98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).

Webb v. Texas is definitely the key Supreme Court case on the issue, and it has been cited many times for the proposition that prosecution interference with the testimony of a defense witness can entitle the defendant to a new trial. The Court of Appeals of Arizona, however, noted that it had never addressed a case involving a “new testimony” provision, as opposed to cases in which prosecutors more overtly coerced or misled defense witnesses into not testifying.

That said, the court noted that

Other jurisdictions have analyzed plea-agreement terms more similar to the ones at issue in this case; most of those cases involve “no-testimony” clauses, in which the pleading defendant agrees not to testify in regard to another defendant. All of the cases we have found that address this issue have concluded such agreements violate due process. E.g., Maples v. Stegall, 427 F.3d 1020, 1033-34 (6th Cir.2005) (plea requirement to not testify on codefendant’s behalf impaired defense and may have violated right to compulsory process); United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977) (agreement not to testify in any manner regarding codefendant constituted substantial interference with witness’s choice to testify and violated due process); State v. Asher, 18 Kan.App.2d 881, 861 P.2d 847, 850-51 (1993) (threatening witness with denial of plea agreement if he testified violated due process rights and hindered jury “in its search for truth”); Bhagwat v. State, 338 Md. 263, 658 A.2d 244, 249 (1995) (plea agreement term inducing or encouraging witness’s silence denies right to compulsory process); State v. Fort, 101 N.J. 123, 501 A.2d 140, 144 (1985) (“no testimony” agreement violated rights to due process and to present favorable witnesses). The basic principles of due process relied upon in these cases are consistent with those articulated in Fisher. As the court noted in Fort, “although inevitably an adversarial proceeding, [a trial] is above all else a search for truth[; t]hat quest is better served when the State does not suppress the truth by sealing the lips of witnesses.” 501 A.2d at 144.

Based upon this precedent, the Court of Appeals was easily able to “conclude the no-exculpatory-information clauses in the codefendants’ plea agreements, as they were applied in this case, substantially interfered with their ‘free and unhampered choice to testify,’ thereby violating Sanchez-Equihua’s right to compulsory process.” Accordingly, it awarded her a new trial.

-CM