Facebook Posts Derail Case; Kudos to Montco Prosecutor for Talking About It

I have often heard prosecutors say to juries that they don’t choose their witnesses, urging jurors not to hold it against them for parading drug users and dealers, prostitutes or jailhouse snitches into court as witnesses in cases at trial. Often, intrepid defense lawyers will attack the credibility and reliability of prosecution witnesses who have some baggage in their backgrounds, trying to convince jurors not to trust the testimony.

This week, spectators observing the trial of a Lower Pottsgrove teenager accused of luring a West Pottsgrove teen to a car to be robbed learned how quickly a prosecutor’s case can go south when the star witness’ Facebook posts came back to haunt him and essentially derailed the prosecutor’s case.

The 19-year-old alleged victim initially testified he never smoked marijuana or sold it.

But not 10 minutes later, when defense lawyer Douglas Breidenbach Jr. cross-examined the young man, he admitted to making posts to his Facebook account that appeared to express his fascination with pot.

One by one, photograph by photograph, Breidenbach confronted the alleged robbery victim with copies of his Facebook shenanigans, which included photos of a marijuana cigarette, photos of him bearing a Nazi symbol etched on his hand and smoking with captions such as “I’m so high” and “Let’s get baked,” and even references claiming he was known as “Kush Man.”

“Kush” is street slang for high grade marijuana. The young man tried to convince the courtroom, “Kush is just a word, it has a lot of meanings.”

The alleged victim also posted on his Facebook page a disrespectful cartoon caricature depicting President Obama, presumably smoking weed, according to testimony. Breidenbach asked the young man, “Is it because you’re a fan of President Obama or a fan of marijuana?”

The 19-year-old replied, “I see nothing wrong with that.”

Well, turns out there was something wrong with his testimony and some jurors appeared less than interested in anything else the young man had to say. Revelations concerning his Facebook posts essentially destroyed his credibility.

Assistant District Attorney Benjamin McKenna, after the alleged victim completed his testimony, moved to dismiss the charges against the 17-year-old who was accused of helping to set up the alleged robbery.

“It was a case that hinged overwhelmingly on the credibility of the victim and when you get caught the way he got caught…and if he looks like a liar then the case fails. It’s our office’s belief that you don’t go forward on charges you can’t prove and I couldn’t prove the charges,” McKenna said candidly to a reporter afterward.

“Mr. McKenna, who I know to be very competent, was stuck with one of the world’s worst witnesses,” Breidenbach summed it up.

Montgomery County Judge Garrett Page/Photo by Carl Hessler Jr.

In court, Judge Garrett D. Page said, “Justice works in different ways. I give credit to the commonwealth to the extent they weighed their efforts.”

Kudos to McKenna for later discussing with the press his decision, which, I am sure, was difficult to swallow, but which seemed inevitable to all spectators after what the witness testified to in court. McKenna was professional and forthright, and didn't shun this reporter, not like some lawyers I’ve seen dash from court after a legal blow and disappear faster than free coffee at the courthouse cafeteria.

Later, I talked to seasoned prosecutor District Attorney Risa Vetri Ferman about the challenge a prosecutor faces when a case unravels.

“I am immensely proud of the way he handled himself in the course of this case,” Ferman said about McKenna. “He was faced with a challenging situation. He was faced very clearly with the fact that his main witness had lied and he knew instinctively that we don’t rely upon liars and knew that the right thing to do in that case was to dismiss the charges and that’s what he did.”

Montco DA Risa Vetri Ferman/Photo by Carl Hessler Jr.

“Justice comes in many forms. Certainly there are times when justice is seeking a conviction and obtaining a conviction. But we can only do justice when we are willing to stand up and have the courage to do what is right and withdraw charges when it’s appropriate. And in that particular case, justice demanded that we withdraw the charges and that’s what this young assistant DA did. I could not be more proud of him,” Ferman added.

Breidenbach, well-known as a tenacious Pottstown area criminal defense lawyer, and his client were pleased with the outcome. Breidenbach said, “We think it’s the right result because we think it was a manufactured story in the first place.”

Breidenbach argued during his opening statement to jurors that the alleged victim gave inconsistent statements and that his testimony was not reliable or credible and that jurors would be left doubting that the robbery even occurred. Uncovering the supposed victim's Facebook posts, Breidenbach had done his homework and brought about one of those rare "ah ha" courtroom moments.

“If the jury doesn’t believe him (the alleged victim) there’s no case,” Breidenbach said.

After the alleged victim’s testimony, I’ll bet some jurors felt that way.

The alleged victim left the courthouse abruptly after wrapping up his testimony.

I’ll never understand one’s fascination for posting offensive tidbits or revealing everything about themselves on Facebook and other social media sites.

NOTE TO FACEBOOK USERS – Be careful what you post. You never know when it will come back to bite you.