Closing arguments in the Idaho-based DBSI federal criminal trial will conclude today. Federal district court Judge B. Lynn Winmill will provide instructions to the jury, and the jury should get the case for deliberation.
This morning’s Idaho Statesman article by John Sowell is headlined DBSI defense: Can FBI agent be trusted? should be neither a surprise nor a shock to Statesman readers and those who have been following the DBSI trial stories in the Statesman. In today’s story, Sowell reports that DBSI defendant Mark Ellison’s attorney Jeffrey Robinson said, “[FBI] Agent Morse was the face of this investigation. Agent Morse was willing to look Judge Winmill in the eye and lie about her testimony.” When a witness can be shown to have given sworn testimony that is inconsistent with or refuted by physical evidence or her previous sworn testimony, opposing counsel is usually permitted to challenge or impeach the witness’s credibility.
If FBI SA Rebekah Morse had been able to return to the witness stand, it is almost certain that Mr. Robinson would have been allowed to question her about the truthfulness of her statement to the Court that she had not sent text messages from the witness stand on her cellular telephone. SA Morse was unable to be impeached in person because, according to the Ada County Coroner, she took her own life before she could be recalled. Thereafter, “Chief District Judge B. Lynn Winmill informed the jury on Friday that Morse had not answered truthfully when she denied texting, but jurors have not been told about her death.”
Clearly and properly, Attorney Robinson hoped to persuade the trial jury that if FBI SA Rebekah Morse was willing to deceive the Court on a comparatively unrelated matter (her personal text messages with her husband), she might have been willing to lie to the Court on material matters relating to the allegations against the DBSI principals. It is also appropriate that the Court has not told jurors about the coroner’s determination that SA Morse died by a self-inflicted gunshot wound before she could be recalled to the witness stand.
Until after the jury returns its verdict and has been discharged (and maybe not even then), it won’t be known what effect SA Morse’s deception, acknowledged and discussed in Court by Judge Winmill, may have had on the verdict. Regardless of any influence SA Morse’s deception may have on the jury and on the outcome of the DBSI criminal trial, it has already irreversibly affected the lives of many people close to her. Ultimately, her unnecessary and arguably irrelevant deception has already come at a very high cost.
ADDENDUM on 04-09-2014 at 3:30 PM: On 04-08-2014 Judge Winmill filed another Memorandum Decision and Order. This most recent one provides the Judge’s curative instruction to the jury in addressing the on-stand texting of FBI SA Morse. It also explains how Judge Winmill considered the desires of both the government and the defendants in arriving at his curative instruction.