VOL. 127 | NO. 49 | Monday, March 12, 2012
Defense Moves for Mistrial in Petties Case
By Bill Dries
The defense in the Petties drug organization trial in Memphis federal court won’t start presenting its case at least until Tuesday, March 13.
The delay came as the defense moved for a mistrial because a witness the prosecution planned to call but didn’t has recanted his testimony.
The issue Federal Judge Hardy Mays is deciding Monday, March 12, is whether the government gave defense attorneys enough notice.
The witness, Temarcus Cartwright, was allegedly involved in a gun swap with Clinton Lewis, one of two defendants on trial. The two swapped guns, according to the government, including a .45-caliber handgun the government alleges Lewis used in the killing of Marcus Turner in 2006.
Turner’s murder is one charge Lewis faces in the trial on drug conspiracy, racketeering and murder-for-hire charges. Martin Lewis faces the same charges.
Assistant U.S. Attorney David Pritchard acknowledged the government scrubbed its plans to call Cartwright as a witness while the trial was under way. But he said Cartwright’s version of events had changed as early as last December in conversations with investigators.
Marcus Brandon, a member of the drug organization, testified for the government that he witnessed the gun swap. Memphis Police Officer Mark Jordan testified that Cartwright cooperated in the investigation by agreeing to turn over the gun he allegedly got from Lewis in the swap.
Investigators obtained the gun during a pre-arranged encounter in Martin Luther King-Riverside Park when a truck drove to a bridge in the park and dropped a gun in a bag on the bridge and left without police pursuit. Jordan said he and officer Therman Richardson were waiting on instructions from Cartwright and picked up the gun after the truck drove away. A ballistics test by the Tennessee Bureau of Investigation matched the gun with a bullet taken from Turner’s body as well as a shell casing found near his body in Olive Branch.
Defense attorney Marty McAfee, representing Martin Lewis, told Mays the chain of custody of the gun was already an “incredible story” – even without Cartwright’s recantation.
“We would have used this and used it well, had we know about it before trial,” McAfee said of the recantation. “There is no remedy that will cure this short of a mistrial.”
Pritchard argued that the defense had questioned Brandon’s version of events vigorously on cross-examination. Defense attorneys at several points suggested Brandon was lying as part of a plea deal with the government.
Defense attorney Howard Manis, representing Clinton Lewis, said the defense has subpoenaed Cartwright as a witness. But he was not certain whether Cartwright would cite his Fifth Amendment rights under the Constitution and refused to testify.
Mays indicated he is interested in hearing what Cartwright has to say without the jury present before ruling on the mistrial motion.
Defense attorneys had already filed a motion for mistrial saying government witnesses including Brandon had offered testimony that was so conflicting that one or some of them had to be lying under oath. Mays’ ruling on that earlier motion is pending as well.