SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF THE ...

Malone v. PeopleS.Ct. Crim. No. 2008-042Opinion of the CourtPage 20 of 25Id.A.2d 331, 335 (D.C.1996) (en banc). “In the crunch, when all else fails,the Fifth Amendment privilege of the witness prevails over the defendant'sright to compel him to testify.” Wilson v. United States, 558 A.2d 1135,1140 (D.C.1989) (citations omitted).The recantation evidence that Malone sought and upon which he based his appealis essentially redundant and superfluous because the jury had already heard testimonyabout Akumba’s earlier recantations. A crucial aspect of the Daniel Brothers’ “law officerecantations” is the following. If one scrutinizes paragraph eleven of Attorney Benham’saffidavit, its substantive content is similar to the content of Akumba’s May 22, 2007 andAugust 16, 2007 recantation letters to the Attorney General. (See Appellant’s App. A-43-A-45; see also, Appellee’s App. 22-23.) Both of Akumba’s recantation letters to theAttorney General were admitted in evidence and available for scrutiny by the jurors.Therefore, if Akumba had returned to court to testify before the jury about his “law officerecantation,” such testimony would have been redundant because the same recantationinformation was already a part of the trial record by the admission in evidence of his May22, 2007 and August 16, 2007 letters to the Attorney General. Accordingly, there was nocogent or plausible reason for the trial court to further delay the trial by reopening thedefense case to compel Akumba to testify and to produce what would be tantamount tocumulative evidence.C. Was the Daniel Brothers’ Recantation Evidence Material andFavorable to Malone?Malone’s counsel had argued before the jury that Akumba’s pre-trial recantationsof his identification of Malone should stand. Malone’s counsel further argued to the jurythat Akeem’s testimony was unreliable because it supported Akumba’s trial testimony.