Appeal Court Decision Provides New Avenue for Johnson Defence

A recent precedential decision by the US Court of Appeals’ Second Circuit has possibly opened a door for former HSBC FX trading head Mark Johnson to have his conviction overturned.

Johnson has separately filed to the US Supreme Court to have that court listen to an appeal against the judgement on eight counts of wire fraud and one of conspiracy in 2017, however a recent judgement by the same Second Circuit that dismissed his own appeal in September 2019 has prompted a further petition for a rehearing by that bench.

The new petition raises a single, completely distinct constitutional issue, namely it states, “A Second Circuit decision issued on July 22, 2020 provides a clear basis for relief that was unavailable while Johnson’s appeal was pending and when he filed his earlier rehearing petitions.”

Johnson’s legal team argues that decision, in US vs Solano, held that an instruction to the jury, “nearly identical to the one in Johnson’s case, violated the presumption of innocence by implying that his “interest in the outcome” created a “motive to testify falsely.” It adds in the petition that Solano “establishes that the jury instruction – given over Johnson’s objection – rendered Johnson’s trial fundamentally unfair” and also “the unconstitutional instruction erod[ed] the presumption of innocence and seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”

The instructions stated, “In evaluating the credibility of a witness, you should take into account any evidence that the witness may benefit in some way from the outcome of the case. Such an interest in the outcome creates a motive to testify falsely and may sway the witness to testify in a way that advances his or her own interests. Therefore, if you find that any witness whose testimony you are considering may have an interest in the outcome of this trial, then you should bear that factor in mind when evaluating the credibility of his or her testimony and accept it with great care.

“This is not to suggest that every witness who has an interest in the outcome of the case will testify falsely,” it continued. “It is for you to decide what extent, if at all, the witness’s interest has affected his or her testimony.

In this case, the Defendant had no obligation to testify but chose to do so. You must therefore scrutin[i]ze the Defendant’s testimony just as you would the testimony of any other witness with an interest in the outcome of the case, taking account all of the factors I have previously described.”

The emphasis in the language was included over Johnson’s objection. In the Solano case the court did not expressly highlight that the defendant had an interest in the outcome, instead it observed he had testified even though he was not required to do so and reminded the jury of his presumed innocence. The Second Circuit found that errors in the jury instructions made inroads into the fundamental principles of the defendant being able to testify in their own defence and they are presumed innocent until proven guilty. By stating to the jury that the defendant had a motive to testify falsely, the appeal court found that the presumption of innocence was “undermined”.

Colin Lambert

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