represent him in this case i also represented him all the way up to the i filed the appeal in the appellate division of the virgin islands district court and subsequently i retired i opened my office in philadelphia and and then when he his family taint me i tried to piece together everything that i could find coming to jury with respect to his comments that i believe that were not in evidence and more particularly comments he made to the jury concerning  yes that's correct and so the testimony rested on that so the jury had to terminate the credibility of all the defense witnesses of the government witnesses and and as well as the credibility of the alleged victim in this case which was the eleven year old charo this court has stated that prosecutors  in number one i believe he said in the transcript as i recall it and from the case that the witnesses were criminals they invoke the fifth amendment that's what i believe that he said and that's what i think yes and and i police in the transcript there beers up mind that believe he made a comment about tatum and nibs taking the fifth amendment was not in your opening  defense witnesses taking the fifth amendment the virgin islands statute clearly says that there is immunity for a person such as record as to what they were going to say i can't find what they were going to say in the record did you make a proper at the time your honor if you will that give her immunity this is what she will test yes i did and i even i can't find it where is yes and i even x yeah and names testified gave a statement that they used all babies to demonstrate whether or not more molestation took place and in fact that and your superior court yet the superior court gave an opportunity to make a record and nothing was produced there was no evidence of recantation that you would do is right  exceptions yeah you know and i believe specifically because the i was very much involved in this case and i believe that it was a statement that was made by mr ed to state that they believe that  confused one of them has to do with i thought we were talking about nibs and tatum and the failure to grant them immunity at trial right and that's a certain let that is an entirely different issue at least chronologically basically melissa told me and the m e m a e told me that her father had abused her i did not believe her introduce at truck and the government said if you testify i'm going to prosecute you which intimidate them they all went out and retained private counsel which was mr jackson now title five of section two five of twenty five thirty three of the virgin on the coast they specifically any person official or institution participating in the faith evarts there is law yeah and they specifically said that certain type of professional school personnel school social service workers have an obligation if they have reasonable cause to believe that sexual abuse immunity and we said we would not we would not but obviously i'm not sure i haven't researched this issue whether as to whether the court has the authority to grant immunity or not i will be honest with you the government is not willing to no i've been involved in this case to the extent that i cannot recall every single conversation yet but yes i came back in in this in this conversation here what the it is talking about we were moving now to after the trial it appears that the defense counsel informed the court that he had a ms walters  right to court trial court ask for a proper and counsel said that she would testify that melissa told her it was a complete lie that it was untrue and it was a complete lie when she stated mr edwards was having sex with her in the presence of her sister now that's later there was a hearing and defense counsel informed the court that mrs ms walters was present no area to testify and he was going to call her and the court for reasons that i can't find in the record that actually the court says my my law clerk called your office and said that ms walters was not going to be permitted to testify but i can't find anything in the record as to why the court would not allow business walters to our offices in the court and when i got to the court i'm a miss met miss walters there she was ready to testify and the just asked us if we were ready to go forward and he said yes i have missed walked into the said well i'm not going to listen to miss walters and i said why not just i'm not going to listen to it so you know you didn't call yes i the trial court and the appellate division said that's not a problem as i understand it because you were given an opportunity later at that hearing to present witnesses but the only thing in the record subject subsequent in the record is the court asking you whether you wanted the government to put him on the stand a politically charged community wide case and in the heat of battle to be quite frank with you i did my best to bring forth my witnesses the court was opposed to it and i was at a loss of their point in time what what i could do legally in the framework to testify in this case she said no now during the course of this trial i didn't look back every minute to see if she was there was she was not when i would i was surprised when the government called her as a rebuttal witness and i objected on the record and the trial judge said over time check she's going to testify their family members were involved in them in any rape case or sexual saw any closer than any close family member and the close family members and no one if i'm a prospective juror and i know that i have a close family member that has been evolving the sexual assault the case or rape case and i sit there on the first case and says no i mean don't is something where the i'll discuss are family members right side do you have anything that shows that case and the other not i but i and that was in my motion for a new trial which was on the federal rules criminal procedure thirty three which the virgin islands court the spirit court but i want to ask just one more question and then and then i'll stop as we noted earlier the two questions that were put to mr powell in this case and the other case were not identical questions the case the question put in this case was do you have a close there's anybody have a close family member who has been a rape victim and the qualification about a close family member was not in the question that was put to the other jury so it's quite possible do we have any reason to know that what caused ms powell to answer the question in the second case and not this one was because the rape victim in her family was not a close family member  powell what i would point out is that if you look to the defendant's brief that's sent to the court you'll see that there that he's transcribed various parts of the transcript and his question in the court blank question from the court black then it goes into a question from the court jury response silent so you're led to believe for those other places where he didn't say jurors silence that they didn't say anything but then when you go in and look at the appendix that was provided that actually states that people did raise their hand and the judge said ok we'll start from over here and so what is going on in the in the referred to page three of the transcript and i think where the confusion comes from what i was able to find from the trial court's file that was in storage that the defense counsel ordered as opposed to the transcript that judge hodge ordered and they're both prepared by the same court reporter and the questions are the same if there's even one where it's i think in the official transcript that he ordered as a question from its state's mr gambits what what did you say and he goes ok let me make this more clear that a diety asked the question and so the question then he hands are raised and he refers to miss webster in the one that the judge says now as you've heard this case involves a sexual assault very one here just because the nature is case that about and on this one it says voice from the panel could you repeat that the court says ok let me get more specific then is there a member of someone who's had a close family member who's been a victim of a sexual assault if you need to approach sidebar in this feel free to do so is a hand raised says ok let's start from over here and in the transcript that i have that signed in that the reason why i think that now if you put everything together where the confusion comes from you look at what this powell said in this case in front of you you look at what she said in that other one and the other case they said do you have a family member and she said yes i have a close family member that was raped by another that's consistent with what she told the judge in this case yes ok so that there's there's no inconsistency right correctly you're from your standpoint and the judge said you can stay and you know it was you say about affect you right on one side the argument is made that this is really the invited response that based on closing argument from the defense they basically said that any acted like she was in a place she rushed her lines basically she's a liar so attorney dick on behalf of the government in his closing said he's a liar now he can back that up because defendant testified and said there's no x rated porno videotapes in my house police officer gets on the stand we found x rated porn videos in his house so a turn tech was entitled to say you're not telling the truth now the second point is is it so outrageous that he called her or he said that the defendant used this young girl as a sex slave i say absolutely not i can't think of a better definition than what happened to this child being a sex slave we can all day long say that the defendant was charged with the levin counts of sexual assault but you look into the record and you look into what this girl said and it's horrible it's absolutely horrible she had to sit in the witness box in front of a judge a court reporter twelve jurors a crowd a courtroom she had to identify our own father she had to testify he licked my vagina that wasn't objected to either it was no she in the time period we're talking about she was seven years old and third grade she then went on to say that we watch  videos together what happened then well then we would act them out we've read it we think that but it needs to be it it needs to really be understood because we can look at these terms of sexual assault as so evidence and wasn't there a government objection that that was known prior to trial and on the basis of that the court didn't permit her to testify am i right or wrong i i'm not sure about that you want to because you know the the recantation that i'm responding to are when the jury went out to deliberate in the hallway where she said she loved him and everybody testify that's all there was that it was that she said and yet that was not what the representation was by the ferrite she misses her father and that she loves him he apologized for what she did she said that she mr rather and at that point in time judge hodge did offer the defense the opportunity to have a hearing and even the prosecution brought and he to the courtroom and she was available for examination as well and he said now you know i'm i'm not going to rehash the whole trial in your honor and judge said no no we're not rehashing the whole trial this is your deal us part you have an opportunity you back so he said no no i just i just make my exception on the record to me that's a waiver waiver of what he said he had a witness there that was prepared to say that i e mrs walters who was prepared to say that she had in me had recanted and said what she had said in court was  and there was no and the judge would not hear if you agree that the judge said he wasn't going to hear ms walters i believe so yes ok and do we have any idea of why the judge said because i don't see how it well if we don't have any idea why the judge says that don't we have to send him back for another hearing so that he can hear mrs walters i don't understand you you know perhaps that it was cured but i'm not quite sure i understand how how it was here the judge said do you want to put to have the state the state has offered to put  emmy on the stand do you want me to require them to put me on the stand and he said no but why is that why does that cure his previous proffer of a witness with personal knowledge allegedly where he was told i'm not going to listen that you're with us by the judge he was told right well the court was saying and i'm looking at district court appearance appendix one seventy three appendix one which would be a transcript number thirty six i said that is what it is if you want to get a hearing put him under oath the supposedly she went up to him she this is the one the whole way now yes you have witnesses now this is your motion let you put on whoever you want you said certain statements were made to the mother of the defendant if you're going to show that let's go to the court can make a finding and then i guess i gather these witnesses were not available to testify and the court then invited the defense attorney to have edwards testify about  attorney asked the court if he could pull hillis walters to the stand the prosecutor objected to water specifying on the ground of the fan and could have discovered her testimony prior to trial since the alleged conversation between her and the victim took place before trial this is entirely different ok ok and the court did not let waters testify although it permitted edwards attorney to make a proper as to what she would say and the reason for that was it was known prior to trial could have been discovered the in court hallway one i think you look at the sentencing and the defendant's own mother when she came forward in front of the court and she said she told the truth she said  came up to me and she was crying she said i'm sorry i still love you i still love the army and grant in the grandmother the mother said you should talk to me go talk to father and the and the mother at sentencing says that's what she did hard says finally i'm getting it straight because that isn't what was represented to me before so i think based on that that's that's unsworn testimony but that's the the defendant's own mother calling speaking on his behalf at the sentencing is it your understanding have there's some suggestion here that mrs wald ms walters did not testify because it wasn't really discovered evidence what when did ms walters claim there had been recantation was it not post trial i believe her testimony was going to be in an event prior to the trial times you think you can help us with a record site but your your recollection is that ms walters was talking about a recantation that happened prior to trial and not after a trial that that is my you you should base on the record what the witness would have asked yes do you have do we have the record there i mean yes we can i mean i have the trial  edwards counsel stated he intended to call ms walters to the stand the trial court asked for a proper appendix to at nine hundred twenty edwards counsel proffered that quote she would testify that melissa told her is well let's let's let's i had not so understood before but now i understand that the defense wanted to follow these witnesses because and made a profit that they would testify that him he told them about the most less station but subsequent to that recanted and said it was a lie in response to that i would say that defendant was charged with  counts eleven counts of spread over three different time periods at three different locations where the the defendant lived the center was found guilty of all of the counts as to the first what they would have testified to to goes charges against the defendant that he was already found not guilty far the you know what wait a minute wait a minute and here you're first yes he was not convicted of the next two correct you say that a witness who gets on the stand in the second or third time period and said yes i've heard what m e said here in the courtroom but to me said to me that she had previously told me the same story but she confessed that she made the whole thing up now that's not relevant to whether he was guilty in this first time period if there's a what this is says that melissa  the whole thing in my supplemental appendix i presented her testimony and used testimony where she stated how that happened that she said yes i did tell her she called the other woman and there was an issue with the dall and then she said oh no never mind forget it and it's understandable you have to take into account that you're talking about at that time i believe she was nine years  l she's living with her father she's under the sway of her father it's very intimidating she's talking to these people though it's definitely on the record oh it's clear that she was so also is that judge god specifically on the record said there was no doubt they were going to plead the fifth and so he said i don't want one mention of the fifth from the church i don't want anyone i'm going to say no i'm going to say that they're unavailable you can get that in so he was the judge and holmes and you can get it in this he chose not to instead he called them within the fourth question the fifth amendment was out on the floor these people chose to have private counsel they retain private counsel there's no obligation on the part of the prosecutor to to grant them immunity and there was no threat there's nothing there he says argument to be and i don't think that that's the same thing attorney dick just said if they testify they testify i think he specifically said i know i think that recently that their attorney instructed them testify did misstate him testified to what the defense wanted her to say that is that him if he told her that she'd made the whole thing up no no because because at that time she was didn't invoke the fifth and therefore did not testify to that effect that there was a recantation prior to trial that's correct you could stand it because the judge said ok go ahead you can answer that and so she pursued proceeded to answer some questions and then her attorney jumped up at one particular question said judge i think there's a misunderstanding that when you said she it's ok for her to go ahead and testify you know not for this one because the judge had just said you know work out a signal something with your client and in other words she never ca one way or the other has to the alleged recantations no i mean yes i am correct that she never said to her right ok does this does a trial court have the power when the defendant says look your honor there's only one witness against me and i have two witnesses here that are willing to say that the government's witness said that her full story was fabricated but they're going to take the fifth because of the statute does the court have the authority to say i'm going to grant immunity in fairness to the defendant so that the jury can hear everything there is to know about the government's witness my understanding of the laws that the trial judge has the you know the authority to grant use immunity however usually called into play when there's an issue of prosecutorial misconduct now my understanding of the law under smith that the court can do that if the court issue is itself that the testimony will be  prior to trial recanted everything she said and the testimony of those two defense witnesses is not because because we're talking about a different time frame so it's and it's just an issue of credibility that you're talking about of so in your in you think that this is susceptible their their testimony is susceptible of the interpretation that him he was recanted with respect to this time period and this time period but wasn't recant thing with respect to the first time  and the other thing i don't believe that there was an objection from the defendants and again i say to the court that judge hodges offered another way to get around this whole issue so that it doesn't become this is peyton left a message on the machine stating that miss waters would not be allowed to testify however miss lawyers is here for two purposes the court well satsang is in today and she's not going to be allowed to testify attorney peyton if your honor if your honor has ruled you have made that ruling and counsel understands that i will move forward the court make a proper of what she would testify to attorney and the proper that she would testify to is that melissa told her that it was a complete lie that it was untrue and it was a complete lie when she stated mr edwards having sex with her in the presence of her sister that was a complete lie i did not know anything about that this waters until they called me because they said her conscious was bothering her and she should have come forward i think that would be derelict in my duties if i had been napping to the bigot into percent of the court mr dick i don't recall any testimony that she stated in the presence of her sister the father molested her i don't remember any testimony to that effect attorney pate no i said miss walters in the presence of her sister not melissa sr had melissa sr been here lissa would have tell you that melissa recanted she's not here because of a change in schedule the court miss walters is who in relation to the child attorney peyton miss walters is a friend of mr edwards in from time to time they took care of alyssa that's my understanding attorney dick this is an individual that the defense had easy access to prior to trial if there was someone that mr edwards used for a part time babysitter for his trial well if mr edwards which you're saying or at least the could the discussion should have continued as to when and where and who said what is that what you mean because then he goes into ms young that's when the next day i think us of a different the point yeah the miss miss walters was present right judge said he's not going to hear from her miss walters weighs about five hundred pounds we had to get special transportation to her to court and the judge said no way no how basically she was not going to testify and that's what happened but the suggestion has been made that that ruling was because she said her testimony was available prior to trial would not give me the address for miss waters is that in the record no it's not in the record well how can we take our guns out you know yeah that and this is my second point and i won't belabor this point any more if the