In May 2005, a Cleveland, Ohio man was carjacked in the driveway of his girlfriend’s home. His girlfriend recognized one of the assailants as her ex-boyfriend Bryce Smith. Both the victim and his girlfriend initially believed that the second assailant was a man named Deandrew Foster, though they later claimed that the assailant said his name was “Pel Pel,” a nickname used by David Garner. Smith pled guilty and agreed to testify against Garner. Just before trial, and five days after the prosecution had received them, prosecutors handed over call records from the victim’s stolen cell phone. The defense asked for a continuance to examine the list, but the judge denied the request, preventing the defense from questioning the victim’s girlfriend about calls that might have been inconsistent with her testimony. In November 2005, a jury convicted Garner of carjacking and the use of a firearm during a commission of a crime.
Following trial, it was discovered that the government had failed to disclose to the defense all of the names associated with the numbers on the call records. In November 2007, the United States Sixth Circuit Court of Appeals vacated Garner’s conviction and granted him a new trial because, in the absence of that information, the defense was not able to challenge the girl friend’s testimony at trial and argue that she was motivated to identify Garner, a stranger, instead of Foster, whom she knew. Prosecutors did not retry Garner, but he remained in prison on unrelated drug charges.
- Stephanie Denzel