Thiru Vignarajah & the New Trials & Tossed 100+ Year Prison Terms For 2 Man Convicted of Killing a Prospective Witness

I hadn’t noticed this Baltimore Sun article until seeing this tweet. The title of the article is provocative: “2 men sentenced to more than 100 years in killing of witness to receive new trial.” Specifically, according to the article,

Derius Duncan, 27, and Clifford Butler, 25, were both convicted of first-degree murder of Ronald Givens* in 2015. But in an opinion issued on Feb. 2, the appeals court wrote that they should receive new trials because information was unfairly used against them from a proffer agreement Butler had made during the investigation.

So, what happened?

According to the article,

During the investigation, Butler spoke to the state during a proffer session and gave information that was later determined to be false, prosecutors said.

By lying, the state argued, he had voided the terms of the agreement and prosecutors could use any statements he made during the session against him.

But Butler’s attorney argued that he had been given a “fresh start” at a second proffer session in exchange for useful information and that any lies he had told during the first session would be forgiven.

A circuit judge ruled in the prosecution’s favor, finding that Butler had breached the proffer agreement by lying during the first session.

The Court of Special Appeals disagreed. It found that “a reasonable person in Butler’s circumstances” would have thought that re-signing the proffer agreement, and speaking truthfully during the second session, would override any lies he might have told during the first.

Here is the opinion of the Court of Special Appeals of Maryland in the case, reaching the conclusion summarized in the article. So, how did the court reach the conclusion that a reasonable person in Butler’s circumstances would have felt that he was being given a fresh start? Here are the relevant portions of Butler’s appellate brief:

After Mr. Butler’s arrest but prior to trial, he and his attorney, Jerry Tarud, contacted the State’s Attorney’s Office in Baltimore County and asked to meet with them. A meeting was orchestrated for December 1, 2011 between Mr. Tarud, Mr. Butler, Assistant State’s Attorney Thiru Vignarajah, (who was the prosecutor in Mr. Butler’s case), Detective Don Anderson and other prosecutors. Prior to any discussion, Mr. Butler was asked to, and did, sign a “Proffer Agreement.” (App. 1). According to the terms of the agreement, “no statements made or other information provided by [Mr. Butler]…during the proffer will be used against [him] in any criminal case,” except under two conditions. The statements made by Mr. Butler could be used by the state to pursue investigative leads or…[i]f the state should ever conclude that you have knowingly withheld material information from the state or otherwise have not been completely truthful and candid with the state

 Thereafter, it appears that Mr. Butler was not completely truthful. But then,

the December 1, 2011 proffer agreement was orally modified when, on December 5, 2011, he was told by Detective Anderson, without objection by Thiru Vignarajah, the prosecutor in Mr. Butler’s case who was also present, that the parties were going to “start over”, (T1-43), that Mr. Butler was being given “an opportunity to start from the beginning”, (T1-43), and that “if he continues to lie…the proffer will be used against him.” (T1-44). This last statement is significant because any reasonable person, in light of the other statements, would interpret it to mean that if the truth is told, it would not be used against him (emphases in original). 

At trial, the State claimed that Butler breached the December 5th proffer agreement, meaning that his incriminatory statements were admissible against him. The defense countered that Detective Anderson explicitly told Butler, without objection by Vignarajah, that he was being given “an opportunity to start from the beginning. While the trial court somehow sided with the State, the Court of Special Appeals disagreed, finding that the State improperly admitted Butler’s statements based upon the statements that Butler made with Vignarajah present.

And so, the murder convictions and 100+ year sentences for Duncan and Butler were thrown out.

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*Givens had allegedly witnessed Baltimore police arrest Duncan on drug and gun charges