Federal appeals court orders new trial in gun case

Friday, Aug. 27, 2004 | 8:48 a.m.

SUN CAPITAL BUREAU

CARSON CITY -- A federal appeals court Wednesday ruled that U.S. District Judge James Mahan was wrong when he restricted the cross-examination by the defense in a case of a Las Vegas man charged with being a felon in possession of a firearm.

The 9th U.S. Circuit Court of Appeals overturned the conviction of Earnest Wilmore and ordered a new trial.

Wilmore's wife, Robin John, had testified before the federal grand jury that a red jacket, in which a gun was found in an apartment in December 2001, belonged to her husband. But at trial, John told prosecutors she intended to disavow her grand jury testimony and invoke her Fifth Amendment right not to testify.

Mahan told defense lawyers not to ask John questions in which she would assert her Fifth Amendment right. The defense then limited its questions to issues outside the grand jury testimony of John.

The appeals court, in a decision written by Judge Donald P. Lay, said a District Court at trial "cannot prohibit a defendant from probing a witness's credibility and motives altogether."

The court said it believed that "Wilmore was entitled to probe into whether Ms. John was testifying in return for government leniency for legal troubles of her own, or even whether, as Wilmore suggested at trial, Ms. John lied to the grand jury to obscure the fact that the coat was hers." It said Wilmore's Sixth Amendment right to confront his accuser was violated

It said the grand jury testimony of John was the only direct evidence that Wilmore possessed the gun. And Wilmore was not permitted to cross-examine his wife during the grand jury proceedings.