Trial court finding of guilt reversed based on doctrine of “inherent incredibility” . . . for the first time in 50 years!

Dion M. Slater-El v. United States (decided July 7, 2016).

Players: Associate Judges Thompson and Easterly, Senior Judge Ferren.  Opinion by Judge Thompson.  Dissent by Judge Ferren.  Edward E. Schwab for Mr. Slater-El.  Trial judge: Marisa Demeo.

Facts: Louisetta Koh and Mr. Slater-El have a son, D.S., who was 16 months old at the time of this incident.  A dispute arose after Ms. Koh informed Mr. Slater-El that she would be taking D.S. to North Carolina the following day.  D.S. was seated in a high chair at the time.  Mr. Slater-El grabbed D.S. while the baby remained in the high chair.  A melee ensued.  Mr. Slater-El and Ms. Koh ended up on a couch, with Ms. Koh on her back at the bottom, Mr. Slater-El facing her on top, and D.S. in the middle, still in the high chair.  Mr. Slater-El’s sister, Donna Robinson, tried to pull Mr. Slater-El off, and her husband, Ellsworth Robinson, began to hit Mr. Slater-El.  Mr. Slater-El was charged with attempted second-degree cruelty to children.

At trial, Ms. Robinson, Mr. Robinson, and one of the responding police officers testified for the government; a second responding officer, Ms. Koh, and Mr. Slater-El testified for the defense.  The trial court relied heavily on Ms. Robinson’s testimony in finding Mr. Slater-El guilty of attempted second-degree cruelty to children.  

Issue: Was Ms. Robinson, upon whom the trial court relied in making its finding of guilt, “inherently incredible,” such that the court’s credibility finding was not entitled to deference? 

Holding:  Yes.  The trial court’s finding rested on Ms. Robinson’s claims that Mr. Slater-El held D.S. in a tight grip while D.S. remained in his high chair; and that Mr. Slater-El gripped the baby very tightly for several minutes while D.S. was pinned between Mr. Slater-El and the high chair.  The DCCA found that each of these findings was clearly erroneous and contrary to the physical evidence, and therefore were not entitled to deference.  Ms. Robinson’s claim that Mr. Slater-El had a tight grip on the baby was internally unsupported and contradicted by many other statements Ms. Robinson made, including her admissions that “you really couldn’t see the baby,” and that she was standing behind Mr. Slater-El.  Likewise, Ms. Robinson’s claim that Mr. Slater-El put his weight on D.S. was speculative.

Of Note:

• Since this is the first time in more than 50 years that a conviction has been reversed in this jurisdiction based on the doctrine of inherent incredibility, a review of the standard is perhaps in order.  A fact-finder’s credibility determination is not entitled to deference “if the testimony of a witness is inherently incredible under the circumstances.”  Slip op. at 17 (quoting Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007).  In order for the doctrine to apply, the testimony must be capable of being “disproved as a matter of logic by the uncontradicted facts or by scientific evidence, or when the person whose testimony is under scrutiny made allegations which seem highly questionable in light of common experience and knowledge, or behaved in a manner strongly at variance with the way in which we would normally expect a similarly situated person to behave.” Id. (quoting Payne v. United States, 516 A.2d 484, 494 (D.C. 1986).

• Consider keeping this case in your trial folder for MJOAs.  The Court’s analysis will be helpful in cases where a determination of guilt would have to rely on witness testimony that is internally inconsistent or illogical.  NG

Read full opinion here.