No error in refusal to tender 'missing witness' instruction

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The 7th Circuit Court of Appeals affirmed a man’s drug convictions, finding the District Court didn’t err by refusing to give the jury a requested “missing witness” instruction.

Lorenzo Tavarez was charged with two counts of distributing 50 grams or more of methamphetamine following two controlled drug buys at his apartment by a confidential informant. Before his trial, the CI disappeared and couldn’t be located by the prosecution or defense. She was the only person who had seen exactly what happened during the controlled buys leaving the government with only circumstantial evidence against Tavarez.

He requested the District Court give the jury the “missing witness” instruction, telling the jury that it could infer from the CI’s absence that the informant would have provided information unfavorable to the government’s case. The District Court declined.

Judge David Hamilton noted in United States of America v. Lorenzo Tavarez, No. 09-3879, that the missing witness instruction is disfavored in the 7th Circuit, but the District court had discretion to give it in unusual circumstances. Tavarez showed that even if called, the informant would have been able to provide relevant, noncumulative testimony on an issue in the case. But he couldn’t show that the CI was peculiarly in the other party’s power to produce. Neither the prosecution nor defense could locate the CI.

“And a witness’s status as a confidential informant does not necessarily give rise to a sufficient relationship with the government so as to render her unavailable to the defense,” wrote Judge Hamilton.

Tavarez couldn’t show the CI was available only to the government, so the District Court did not err in refusing the missing witness instruction.

The 7th Circuit also found a jury could have reasonably reached its guilty verdict based on the circumstantial evidence presented at trial. Most importantly, Tavarez’s fingerprint was found on one of the bags of drugs the CI provided to law enforcement.

"The case against Tavarez was not overwhelming. We can imagine innocent explanations for the fingerprint and the buy money in the men’s clothing,” wrote the judge. “But the ability to imagine an innocent explanation is not equivalent to harboring reasonable doubt. This circumstantial evidence was not so weak as to preclude a guilty verdict.”


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.