Zimmer, Duncan & Cole

Why Accomplices are Terrible Witnesses

Criminal trials never unfold like they do on television. There is no script. Mistakes are always made on both sides. Despite the imperfections, this messy process usually yields the right result.
Once in a while, though, the mistakes are so big that the defendant is denied a fair trial. The solution is to send the case back for a second attempt.
That's the result in this week's case, State v. Nathaniel J. Thomas, (2011 S.D. 15).
In the early morning hours of September 29, 2008, a suspicious fire burned The Pressbox in Vermillion. (Many Coyote alums fondly refer to this bar as their "other home" during college.)
The police suspected arson. Behind the building they found a Molotov cocktail: a gasoline-filled bottle with a cloth "fuse" sticking out of it. Without any other leads, the case stalled.
Almost a year later, a tip led them to Nathaniel Thomas, and his two cousins Jimmy and Jeremy. Nathaniel lived in an apartment across the street from The Pressbox. He had called 911 to report the fire, but denied any involvement.
Nathaniel's cousin, however, told a different story. Jimmy claimed the trio had been drinking heavily, late into the night. Jimmy and his brother began gathering ingredients for a fire: gasoline siphoned from Nathaniel's car, paper towels from his kitchen, and empty beer bottles. They used the ingredients to set fire to a patch of gravel twenty feet behind the bar.
Eventually the fire died down, and the boys headed to bed, leaving the smoldering mess behind.
However, ten minutes later, Jimmy said he saw the fire had started up again. He called his cousin and told him to report it. Nathaniel initially refused, but finally agreed. Most importantly, Jeremy told the investigators on two different occasions that Nathaniel didn't set the fire.
Based on phone records, the prosecutor suspected all three were involved and charged each of them with "reckless burning", rather than arson. The crime of arson requires intent to burn down a building. Reckless burning is the crime of starting a dangerous fire that could burn down a building or harm others, even if that wasn't your plan. Both crimes carry the same punishment.
Jimmy and Jeremy soon entered into a deal with the State. In exchange for their guilty pleas, they were required to testify against their cousin.
In the meantime, some bad blood had apparently begun to develop between the cousins. Nathaniel claimed the two were angry at him because he had assaulted his cousin Jimmy.
At trial, it appeared this bad blood might have infected the trial. Although Jimmy had twice before told investigators that Nathaniel was not involved, he changed his story at trial and said Nathaniel helped set the fire. The prosecutor claimed Jimmy had lied twice to the investigators, but now was finally "coming clean" at trial. The jury voted to convict Nathaniel. He appealed his conviction.
The problem of "accomplice testimony" is nothing new. Our courts have long recognized that accomplices are terrible witnesses.
When two people are charged with the same crime, the incentive is just too great for one of them to "tailor the truth to his or her own self-serving mold". Because of this, a jury must always be told that an accomplice "is regarded as a corrupt source of testimony," and their testimony should be "received with suspicion and with the very greatest care and caution."
In addition, there is a rule that a person cannot be convicted of a crime based only on accomplice testimony. Instead, the story must be corroborated by testimony or physical evidence that helps prove this particular defendant committed the crime.
Unfortunately, the jury was not told about these rules, and there was no other evidence suggesting Nathaniel himself had set the fire. Nathaniel's lawyer should have asked the trial judge to explain this during the jury instructions. However, his lawyer failed to do so.
Because of these "plain errors", the Supreme Court agreed that Nathaniel is entitled a new trial.
A link to the full opinion is available on my law firm's website, www.zdclaw.com.
If you have a question about the law or a recent court case, please send it to me. I'll do my best to answer it in plain English. You can reach me at dan@zdclaw.com or "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.
Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.