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Univ. of South Carolina School of Law

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Thursday, November 1, 2007

(In)Complete Ruling: North Dakota Judge Incorrectly Applies Rule of Completeness in Moe Gibbs Retrial

The Moe Gibbs murder case is probably the most (in)famous murder case in North Dakota history, with the possible exception of the (fictional) "based on a true story" murder-kidnapping depicted in the Coen Brothers' "Fargo."  In September, 2006, Gibbs was arrested for the murder of Mindy Morgenstern, a local college student found murdered and nearly decapitated in her apartment.

There are several things that were and are questionable in the case.  DNA from two unkown males was found under Morgenstern's fingernails and on the two knives used to try to decapitate her.  An unidentified blonde hair was found in Morgenstern's hand.  Pine Sol was found on Morgenstern's face, yet nobody who came into contact with Gibbs on the day of the murder remembered smelling Pine Sol on him or in his apartment.  Conversely there are plenty of facts which hurt Gibbs, including his inability to remember where he was at the time of Morgenstern's murder.

There are a plethora of other facts in the case, which range from odd to unsettling, and of course, there is the fact that Gibbs is an African-American man in an almost all-white community.  All of these factors led to a hung jury in Gibbs' first murder trial, with jurors equally split on the question of Gibbs' guilt.

At Gibbs' first trial, defense counsel introduced portions of a videotape of an interrogation police conducted with Gibbs a week after the Morgenstern murder.  Those portions showed Gibbs declaring that he did not kill Morgenstern.  Now, Gibbs' second trial has begun, and the judge hearing the case has made an erroneous ruling on the videoptape, which should lead to Gibbs' conviction being vacated should he be found guilty of the murder.

The judge found that if part of the videotape is played, the entire videotape must be played pursuant to North Dakota's rule of completion.  This presents a problem for Gibbs because the entire videotape runs for 2.5 hours and includes police interrogation of Gibbs about other crimes for which he is accused.

Like Federal Rule of Evidence 106, North Dakota Rule of Evidence 106 states that "[w]henever a document or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness be considered contemporaneously with it."

What this means, for instance, is that if during the videotaped confession Gibbs denied but then admitted to the murder and sought only to admit his denials, the prosecution would be entitled to admit those portions of the tape where Gibbs admitted to the crime.  Similarly, if Gibbs consistently denied the murder but continually changed his story about where he was at the time of the murder, the prosecutor would be entitled to admit the changing stories to question Gibbs' denials.  In other words, when a defendant makes exculpatory statements about a specific crime in a videotaped statement, the prosecutor can introduce portions of that videotape which contain statements about the specific crime that are inculpatory or provide a necessary context.

In the Gibbs case, however, the prosecutor made the "successful" argument that the entire videotape of Gibbs' confession, including portions where he talked about other alleged crimes that ostebsibly were unrelated to the Morgenstern murder, had to be admitted.  There was no "fair" reason for these portions to be admitted, and, in fact, they violate North Dakota's rule preventing the admission of character evidence.  All of this means that even in the event of a conviction, we're far from seeing the end of the Gibbs case.

-CM

http://lawprofessors.typepad.com/evidenceprof/2007/11/incomplete-ruli.html

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Comments

Was the videotape of the police interrogation admitted in it's entirety to the jury in this second trial? There are conflicting reports on this, and I'd like to know for sure.

Posted by: CarolynW | Nov 27, 2007 5:56:12 AM

I've seen conflicting reports as well, so I am unsure of what happened. That said, Gibbs should be able to appeal in either case. If the entire videotape was shown, as I noted in the blog entry, Gibbs should be able to appeal based upon the admission of improper character evidence. If Gibbs decided not to present the favorable portions of the videotape based upon the judge's ruling that this would open the door for the whole videotape being shown, he should be able to appeal based upon not being able to present exculpatory evidence.

Posted by: Colin Miller | Nov 27, 2007 8:32:08 AM

I have requested a complete transcript of the trial, so if I receive that, I should know about what was admitted as evidence. Do you have an email address where I could contact you directly? Mine is carolynw@americaiswatching.org

Posted by: CarolynW | Nov 28, 2007 6:40:13 AM

I KNOW MR.GIBBS SINCE CHILD HOOD AND ALL THE THINGS I HAVE READ FOR AND AGANIST MR GIBBS CLEARLY SHOWS THAT THERE IS STILL A THIN LINE BETWEEN RIGHT AND WRONG WHEN IT COMES TO WHITE AND BLACK. WHAT WOULD OF BEEN THE REASON FOR THE MURDER SHE WASNT RAPED OR ROBBED JUST MURDERED SEEMS TO ME SHE WAS A VICTIM AS WELL AS GIBBS TO DO AWAY WITH ANOTHER BLACK MALE. IF MR GIBBS HAD BEEN WHITE THEY WOULD OF TRIED TO BRING ELVIS HIS SELF BACK TO TALK ON HIS BEHALF BUT I WANT TO KNOW WHO DOES THE BLONDE HAIR IN MINDYS HANDS BELONG TO AND WHICH POLICE OFFICER SENT HIM TO KILL HER AND FRAME MR GIBBS

Posted by: KATINA | Oct 19, 2009 1:28:59 PM

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