Lawyers representing convicted drug dealers don't usually hold out much hope that they'll get either sympathy or relief from the reliably conservative U.S. Court of Appeals for the Fifth Circuit.

But Houston solo practitioner Yolanda Jarmon recently showed why criminal defense lawyers should not always make those appellate assumptions after she recently convinced the court to reverse two of her client's drug convictions because he wasn't allowed to confront a key witness in his case.

“If I would have had to bet, I would have bet against myself,” Jarmon said of her appellate win. “But if you do your best work every time, you just never know.''

Jarmon represents Pereneal Kizzee, who was convicted of possession of ammunition and firearms by a felon, possession of a controlled substance with intent to deliver, and possession of a firearm in relation to a drug trafficking crime.

At trial, the government's main witness was police detective Lance Schultz. The detective was asked by the prosecutor about questions he posed to a criminal suspect, Carl Brown, during an interrogation. In response to the detective's questions, Brown implicated Kizzee for distributing narcotics.

Brown later recanted his statements to the detective, denied that he'd implicated Kizzee, and indicated he did not wish to testify.

Brown did not testify at trial and was not subject to cross examination. Kizzee objected to the detective's testimony about Brown's statements based on the hearsay rule and the Confrontation Clause — a guarantee in the Sixth Amendment that says that an accused person has the right to confront the witnesses against him.

The trial judge ultimately overruled Kizzee's objection and he was found guilty by a jury on all three criminal counts. Kizzee was later sentenced to a 130 months in prison. Kizzee later appealed his convictions to the Fifth Circuit, arguing that the detective's testimony implicitly introduced Brown's out-of-court statements in violation of the Confrontation Clause, among other things.

The government suggested on appeal that Kizzee had an opportunity to cross-examine Brown at trial because he could have called him as a witness by subpoenaing him, however Kizzee refused.

But Kizzee responded that it should not be incumbent on the defense to produce witnesses for the government and that to suggest otherwise misunderstands the burden of proof in a criminal case.

“We agree,” Judge Ed Prado wrote in his Dec. 15 decision in USA v. Kizzee. “The fact that a defendant could call a witness cannot fairly constitute a prior opportunity to cross-examine that witness. Otherwise, a prosecutor could introduce hearsay statements by any available witness merely by proposing that the defense could call them instead.”

“Thus, we find that Kizzee's Sixth Amendment right to confront adverse witnesses at trial was violated by Detective Schultz's testimony when the prosecutor implicitly introduced Brown's out-of-court statements,” Prado wrote in a decision that vacated the two drug convictions for a new trial but let the gun conviction stand.

Jarmon believes the government's argument that her client should have called Brown, a potentially adverse witness who'd retracted his statement, was crucial to her victory.

“What's real key here is at the motion to suppress hearing, the government knew of this retraction. It could have subpoenaed Mr. Brown at trial. Nevertheless the government argued that Mr. Kizzee should have subpoenaed Mr. Brown to make his defense,” Jarmon said. “And I argued on appeal in reply that it's never the defense counsel's job to subpoena the government's key witness. I argued that the defendant can sit there and hold his hands. The government has to prove its case. And that's the case in a nutshell.”

Richard Berry, an assistant U.S. attorney in the Southern District of Texas who represented the government on appeal in the case, did not return a call for comment.

Jarmon said the Fifth Circuit's decision will hopefully lead to a reduced sentence for Kizzee. “And if not, he doesn't have to spend the rest of his life looking like a drug dealer,” she said.