Sunday, December 16, 2007
Appellate Post-Mortem?: New York Man To Appeal Manslaughter Conviction Based Upon Medical Examiner's Conclusions
Edwin Tirado was recently convicted of second degree manslaughter in a New York court in connection with the death of Jonathan Carey, a 13 year-old autistic boy. Carey was on an outing in a van with another child from the O.D. Heck Developmental Center in Schenectady when Tirado, a health worker, allegedly improperly restrained him after he acted out. According to police, Jonathan thereafter stopped breathing, and Tirado continued to restrain him while the driver of the van, Nadeem Mall, continued driving around upstate New York, "doing errands, shopping and buying beverages." Tirado and Mall allegedly waited 90 minutes before reporting the medical emergency, too late to save Carey.
Tirdao was convicted in part based upon the testimony of a medical examiner as to the cause of death. At Tirado's sentencing, Carey's parents gave victim impact statements about the immeasurable pain they had suffered and asked that the court impose the maximum sentence. Their statements were apparently persuasive as the court sentenced Tirado to five to fifteen years imprisonment, the maximum sentence for second degree manslaughter. If Tirado has his way, however, he won't serve a day of this sentence.
Tirado's attorney has contended that he will file an appeal on Monday because "[t]he medical examiners testimony and opinion as to the cause of death was based on hearsay." While it is unclear from the articles discussing the case what hearsay the medical examiner allegedly used in reaching his conclusion, it should be noted that the simple fact that the examiner relied in part on hearsay would not necessarily render his conclusion improper.
Pursuant to Federal Rule of Evidence 703, experts can base their opinions on inadmissible evidence if experts in their particular field reasonably rely on that type of evidence in forming opinions. While New York does not have a statutory counterpart to this federal rule, its cases have come to a similar conclusion. In People v. Yates, 290 A.D.2d 888, 889 (N.Y.A.D. 3 Dept. 2002), a New York state appellate court found that "an expert may base his opinion on material outside the record, so long as it is of a type reasonably relied upon by experts in the field in forming their professional opinions." The same court later relied upon this language in finding that a forensic expert properly relied upon out-of-court statements in forming his conclusion about the victim's cause of death. See People v. Odell, 26 A.D.3d 527, 529 (N.Y.A.D. 3 Dept. 2006). Thus, there is good reason to believe that Tirado's conviction will be affirmed.
Saturday, December 15, 2007
So Turn And Forfeit: Massachusetts Court Applies Forfeiture By Wrongdoing Doctrine In 7-Eleven Stabbing Case
Blake Colella is on trial in state court in Massachusetts, facing charges of assault and battery with a dangerous weapon in connection with the stabbing of Richard Dalton outside a 7-Eleven last May. Allegedly, Colella and Dalton's teenage cousin, Starann Butler, were having a "conversation" when Dalton intervended, and Colella stabbed him in the chest. It is also alleged that Colella assaulted Dalton's younger brother Joseph.
Things initially appeared to be going surprisingly well for Collela at trial. When Richard Dalton was called to the witness stand, he testified that he could not recall the events of the night of the stabbing. Butler then testified that she could not remember much about the night of the stabbing. When asked about her prior identification of a photograph of Colella as her assailant, Butler claimed that she made the identifcation only because the police had shown the photograph to her. When the prosecution called Colella's father, Angelo, he refused entirely to testify.
It's difficult to prove a case without testimony implicating the defendant, but Salem Superior Court Judge David Lowy changed the landscape of the Colella trial when he determined that these witnesses were refusing to testify because of coercion or witness intimidation by Colella. Based upon this determination, Judge Lowy found that the doctrine of forfeiture by wrongdoing was applicable to the case. Under this doctrine "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is admissible as an exception to the rule against hearsay. Thus, pursuant to this doctrine, Judge Lowy allowed for the admission of statements made by Butler and Dalton to police and to a grand jury and recorded conversations between Colella and his father even though they typically would have constituted hearsay.
Massachusetts just recently incorporated the forfeiture by wrongdoing doctrine into its case law in the 2005 case, Commonwealth v. Edwards, 830 N.E.2d 526 (Mass. 2005), and that case provides an opportunity to explore some of the splits among courts about how to apply the doctrine. Most courts hold that the party seeking to prove wrongdoing by the opposing party must do so only by a preponderance of the evidence, and Massachuseets joined the majority in Edwards. A minority of courts, however, require proof by clear and convincing evidence. I agree with the majority of courts because the determination of whether there was wrongdoing is a preliminary question of fact similar to the preliminary questions of fact presented when there is an alleged admission by a party's employee or coconspirator. Because courts apply the preponderance burden of proof in these cases, they should apply the same burden of proof in forfeiture by wrongdoing cases. See id. at 172.
Additionally, most courts require that a judge hold an evidentiary hearing before determining whether the forfeiture by wrongdoing doctrine is applicable while other courts do not require such a hearing. See id. at 174. Massachusetts joined the majority in Edwards. See id. I haven't done enough research on this issue to definitively favor either side, but it appears at first blush that it would be unfair to apply the doctrine without giving the alleged wrongdoer the full and fair opportunity to contest the allegations provided by a hearing.
Friday, December 14, 2007
Follow My Voice: Executive Editor's Comments Likely Admissible In Guardian Lawsuit Against Village Voice Media
The San Francisco Bay Guardian has sued the SF Weekly and its parent company, Village Voice Media, claiming that the latter sold ads below cost in San Francisco in an effort to put the Guardian out of business. Things are currently heating up in the lawsuit as trial start date of January 7, 2008 is just around the corner.
During a December 6 case management conference, Village Voice Media's lawyers moved to preclude the Guardian from introducing into evidence statements allegedly made by Village Voice Media executive editor Mike Lacey in 1995 when New Times, the precursor to Village Voice Media, purchased SF Weekly. Allegedly, during a meeting with SF Weekly employees, Lacey told them that he wanted the paper to be "the only game in town," and made other statements which the Guardian has argued demonstrate an intent to harm competition.
Judge Richard Kramer did not rule on the admissibility of these alleged statements, but he did insist that he be able to hear the proferred testimony of the witnesses outside the presence of the jury so that he can rule on their admissibility. Assuming that the Guardian is correct about the substance of Lacey's statements, however, it seems very likely that they will be deemed admissible.
California Evidence Code Section 1222 indicates that "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if...the statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement;" and "[t]he evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence."
What this Rule means is that under certain circumstances, the statements of an employee can be admissible in a trial against the organization for which he works. California, however, has a "restrictive interpretation of what employee statements constitute admissions on the part of their organizational employer," and only imputes to the employer "the statements of high-ranking executives and spokespersons." Snider v. Superior Court, 113 Cal..App.4th 1187, 1206 (Cal.App. 4 Dist. 2003). Nonetheless, I would have to think that the executive editor, as the top editor, would meet this restrictive test, allowing his statements to bind Village Voice Media under California Evidence Code Section 1222.
The Supreme Court of Delaware has affirmed the convictions of Michael Jones, who had been convicted of the murders of Cedric Reinford and Maneeka Plant, the granddaughter of Democratic state Rep. Hazel Plant. At trial, the prosecution alleged that Jones and Darrel Page were members of a drug ring led by Reinford. The prosecution contended that Jones and Plant entered into a conspiracy to kill Reinford and steal drug money from him. Allegedly, on the evening of November 20, 1999, Jones shot Reinford three times in the head in his car, Page and Jones doused Reinford and his car with gasoline and set them on fire, the pair proceeded to Reinford's house to steal the drug money, and while there, Jones shot and killed Plant, Reinford's fiancee.
Jones raised several issues on appeal to the state supreme court, but the only one that I will address is the issue of whether the trial court judge improperly allowed Kim Still, Page's girlfriend, to testify as to what Page told her in the weeks leading up to the homicide, including his intent to enlist Jones to commit murder. The trial court found this statement to be admissible pursuant to Delaware Rule of Evidence 803(3), which indicates that "[a] statement of the declarant's then existing state of mind" is admissible as an exception to the rule against hearsay. Thus, a husband's statement to his wife that he was about to go to the grocery store would be admissible to prove that the husband in fact planned to go to the grocery store. In the same way, Page's statements that he planned to have Reinford killed would be admissible to prove that Page in fact planned to have Reinford killed.
As I have noted before, however, there is a circuit split as to whether the state of mind exception allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person. I fall into the camp excluding statements that speak to the alleged future acts of some other person, and this position is supported by the Report of House Committee on the Judiciary in passing Rule 803(3), which made clear that the Rule was only intended to allow for the admission of statements to prove the conduct of the declarant, not to prove the future conduct of another person. Applying this analysis, the portion of Page's statement where he said that he planned to enlist Jones would be inadmissible as speaking to the future acts of Jones.
Indeed, this appeared to be the analysis taken by Delware courts before the Michael Jones case. In State v. McDonald, 598 A.2d 1134, 1140 (Del.Super. 1991), the Suprerior Court of Delaware cited to the Report of House Committee on the Judiciary and found that while the portion of a victim's statement referring to her present purpose or intent was admissible to prove, by inference, her future conduct, the portion of her statement speaking to the alleged future acts of the defendant was "not admissible to show, inferentially, the intent or future conduct of the defendant."
More importantly, in Capano v. State, 781 A.2d 556, 608 (Del.Supr. 2001), the Surpeme Court of Delaware cited to the opinion of the United States Supreme Court in Shepard v. United States, 290 U.S. 96 (1933), where the Court found a statement did not meet the state of mind exception to the rule against hearsay because the statement "faced backward and not forward....What is even more important, it spoke to a past act, and more than that, to an act by some one not the speaker." The Surpeme Court of Delaware then used this analysis to exclude statements allegedly made by a victim under the state of mind exception because they spoke to past acts and because they spoke to acts by the defendant. Capano, 781 A.2d at 611.
In contrast, the Supreme Court of Delaware affirmed the trial court's ruling in the Michael Jones case allowing Still to testify that Page told her that he planned to enlist Jones. Strangely, the Court did not mention its prior ruling or the split among courts as to whether the state of mind exception allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person. This makes the decision faulty in both process and, in my mind, outcome.
Thursday, December 13, 2007
Pursuant to the Supreme Court's decision in Franks v. Delaware, 438 U.S. 154 (1978), if the defendant challenges the validity of a warrant, a court must grant an evidentiary hearing, now known as a Franks hearing, to the defendant if he makes a substantial preliminary showing that (1) a statement in the affidavit supporting the warrant was knowingly or intentionally false, or made with reckless disregard for the truth, and (2) the falsehood was necessary to the finding of probable cause. Milwaukee Alderman Mike McGee Jr. has been accused of being involved in a vote buying scheme and other crimes. Wednesday, the judge hearing the case struck a major blow to McGee's case when he ruled that federal wire taps can be used against McGee in his upcoming trial after conducting a Franks hearing.
McGee's attorney, Glenn Givens, had contended that the federal agent who applied for the wire tap did so knowingly using false and misleading information. Specifically, Givens claimed that the agent, Daniel Hargreaves, exaggerated McGee's suspected wrongdoing by including dubious allegations he couldn't prove, such as bribery of a bank executive, which is not among the criminal charges against McGee. Givens also claimed that Hargreaves omitted accounts that McGee wasn't involved in buying votes. Circuit Judge Dennis P. Moroney disagreed, finding that the only demonstrated inaccuracies presented to him, such as incorrect assertions of an informant's legal name, a central city's grocery ownership, and organizational details of a social activist group, amounted only to lack of investigative thoroughness and weren't enough to toss out the wiretaps because they did not establish deliberate falsity by the agent.
Without having access to McGee's submissions, I have no reason to quibble with the judge's decision, but this case does give me reason to address a circuit split which I feel the Supreme Court needs to resolve. The judge in McGee's case granted him a Franks hearing and then rejected his arguments. What would have happened, though, if the judge refused McGee's request to hold a Franks hearing and McGee appealed that decision?
There is currently a sharp circuit split on the issue, with most courts holding that an appellate judge would review the denial pursuant to the abuse of discretion/clear error standard of review, under which the trial judge's decision would only be reversed if the decision was arbitrary and capricious. See United States v. Arbolaez, 450 F.3d 1283, 1293 n.11 (11th Cir. 2006) (citing cases from the 1st, 2nd, 7th, and 8th Circuits). A few courts, however, hold that an appellate judge would review the denial pursuant to the de novo standard of review, under which all the issue would be determined anew without regard for the initial disposition. See id. (citing cases from the 5th and 9th Circuits). In light of this split, other courts have been wary of picking one side or the other and have openly refused to address the issue, instead finding that the refusals to hold Franks hearings with which they were presented could withstand scrutiny under either standard of review. See id. (citing a 6th Circuit case and coming to the same conclusion).
I agree with the minority of courts on this issue. While merely labeling an issue as a mixed question of law and fact does not mean that it automatically receives de novo review, see Ornelas v. United States, 517 U.S. 690, 701 (1996), in the absence of a compelling reason to the contrary, these issue typically receive de novo review. See, e.g., United States v. Fadl, 498 F.3d 862, 865 (8th Cir. 2007). It seems apparent to me that the Ninth Circuit is correct in holding that the issue of whether to hold a Franks hearing is a mixed question of law and fact because it "is a determination about the legal sufficiency of a set of allegations, much like the district court's ruling on a Fed.R.Civ.P. 12(b)(6) or summary judgment." United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985). In deciding whether to hold a Franks hearing, the trial judge is at least partially deciding whether the alleged falsehood by the affiant was necessary to the finding of probable cause, which is a determination about the legal sufficieny of the defendant's allegations.
I might feel less secure in my argument if the courts applying the abuse of discretion/clear error standard of review in Franks hearing denial cases articulated a reasonable argument to the contrary. After scouring several of these cases, however, I didn't find a single cases that actually laid out an argument for applying the abuse of discretion/clear error standard of review. Instead, these courts seem to have applied this standard of review without any reasoning whatsoever. See, e.g., United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997).
One final note is that the McGee case gives me good reason to tout the upcoming fifth (and final) season premiere of David Simon's "The Wire" on HBO on January 6, 2008. In my mind, this is one of the best shows on TV. This series drops viewers into the Baltimore, Maryland milieu and presents you with all sides of the drug war in an uncompromising verite vision. I enjoy any of the various incarnations of "Law & Order" from time to time, but it's strictly the sticks compared to Simon's major league vision.
Find Me Guilty: California Judge Excludes Defendant's Statement, "This Is All My Fault. I Did This."
Tony Ricky Yonko has been charged with first-degree murder in connection with the death of Paul Dinh Ngo. The prosecution has alleged that Yonko bludgeoned Ngo to death with a hammer in Ngo's house. If he is found guilty by the California jurors hearing the case, he could face the death penalty, but the likelihood of a conviction was somewhat reduced by an odd evidentiary ruling by Judge Judith Clark on Wednesday.
On Monday, Yonko's teenage daughter gave emotional, tearful testimony that on the day of Ngo's death, her father came home covered in blood. According to Deputy Mike Yarbrough, after the daughter gave this testimony, Yonko told him, "This is all my fault. I did this." Yarbrough repeated Yonko's comment in testimony outside the presence of the jury on Tuesday, but on Wednesday, Judge Clark told attorneys that Yarbrough would not be able to repeat his testimony to jurors because there was no way to know what Yonko may have meant and the comment would open up too much speculation by the jury.
This decision baffles me. I'm going to assume that the basis for Judge Clark's ruling was not California Evidence Code Section 1220, which states that statements are not held inadmissible by the hearsay rule when offered against the declarant in an an action to which he is a party. Here, Yonko is a part to the action as a criminal defendant, and his alleged statements to Yarbrough undoubtedly would have been offered against him, making them admissible.
Presumably, then, Judge Clark excluded Yonko's alleged statements under California Evidence Code Section 352, which states that a court in its discretion may exclude evidence if its probative value is substantially outweighed by dangers such as its prejudicial effect or potential for misleading the jury or confusing the issues. In order for Judge Clark's decision to make sense, we would have to accept her belief that Yonko's statement was extremely ambiguous and could have meant several things. I see no way, however, to characterize the statement, "This is all my fault. I did this," made by the defendant during his trial for murder directly after his daughter provided incriminating testimony against him, as anything but an admission of guilt by Yonko.
Wednesday, December 12, 2007
After a lengthy process of development by the Advisory Committee on Rules of Evidence, Utah has put forth Proposed Rule of Evidence 509, which protects news reporters and their sources. There are 3 privileges covered under the umbrella of Proposed Rule 509:
-"A news reporter of confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential soirce information, unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death;"
-"A news reporter has the privilege to refuse to disclose confidential unpublished news information, unless the person seeking such information demonstrates a need for the information which substantially outweighs the interest of a continued free flow of information to news reporters;" and
-"A news reporter has a privilege to refuse to disclose other unpublished news information if the person claiming the privilege demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure."
The Advisory Committee Note to the Proposed Rule indicates that since the Supreme Court's 1972 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), "there has been an increasing but somewhat inconsistent development of the law concerning this privilege." The inconsistently is reflected in the fact that the extent of a federally-recognized privilege remains unclear and the fact that while many states have addressed the privilege there is substantial variation in how the privilege may operate in different jurisdictions.
The Note then indicates that while the privilege limits the disclosure of certain facts in developing an evidentiary record, the law has long recognized that some societal needs, such as assuring a continued free flow of information to those who gather an publish news, can outweigh the value in disclosure. At least at this point in time, however, the people leaving public comments disagree with the Advisory Committee. Of the 13 comments left so far, 8 oppose the Proposed Rule, and only 5 support it.
Here are a couple of thoughts on some of the comments opposing the Proposed Rule:
-Several commenters have argued that the Proposed Rule shouldn't become law because there is no such privilege under the Federal Rules of Evidence. This is literally true, but that is only because there are no privileges officially recognized under the Federal Rules of Evidence; several such Rules were proposed, but never enacted because there was no agreement about the exact wording of these Rules. Nonetheless, most federal courts do in fact apply some version of a reporter's privilege, and "[t]hirty-six states have some form of qualified journalist privilege." Geoffrey R. Stone, Why We Need a Federal Reporter's Privilege, 34 Hofstra L. Rev. 39, 51 (2005);
-A few commenters have claimed that a reporter privilege is unnecessary because there are so few cases where it would apply. According to a law review article, however, some of the recent examples where the privilege would have been relevant in Utah include the Elizabeth Smart kidnapping, the judicial probe of Leslie Lewis, the the Kingston polygamy clan case, the Tom Green bigamy case, and newspapers reports opposing subpoenas seeking their testimony about murder confessions and subpoenas. Edward L. Carter, Reporter's Privilege in Utah, 18 BYU J. Pub. L. 163, 163-64 (2003). Now, we can also throw the Warren Jeffs case into the mix.
U.S. Border Patrol Agent Nicholas Corbett has been charged with second-degree murder, manslaughter, and negligent homicide in connection with the death of illegal immigrant Francisco Javier Dominguez Rivera. I previously reported on this case back in October when Corbett was attempting to have Dominguez Rivera's relatives deemed incomptent to testify against him at trial. To briefly recount the facts of the case, it is undisputed that Corbett shot and killed Dominguez Rivera with his service pistol while he was patrolling the border. Corbett, however, claims that he acted in self defense after Dominguez Rivera assaulted him with a rock while he was trying to apprehend him; Dominguez Rivera's relatives and the prosecution contend that Corbett shot him without provocation.
Now, Corbett's defense counsel has filed a motion in the United States DIstrict Court for the District of Arizona asking the prosection to produce material evidence that is favorable to the defendant or which affects the credibility of the state's case. According to defense counsel, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.
Under defense counsel's definition of materiality, a prosecutor would have to turn over even inadmissible evidence to defense counsel. A quick look at Ninth Circuit case law reveals that the issue is considerably more complicated than defense counsel's plain statement. Since the Supreme Court's decision in Wood v. Bartholomew, 516 U.S. 1 (1995), courts have split as to whether inadmissible evidence can be "material" pursuant to the Brady doctrine established in Brady v. Maryland, and thus form the basis for a new trial when a prosecutor fails to timely disclose it to defense counsel.
I have consistently argued that courts holding that the failure to disclose inadmissible evidence can never form the basis for a new trial are acting incorrectly and that the Supreme Court should promptly resolve the circuit split. My research in the Corbett case has revealed that there are actually intra-circuit splits on the issue. In Paradis v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001), after discussing the circuit split, the Ninth CIrcuit found that its own past decisions were inconsistent on the issue, with some cases implying that inadmissible evidence can never be material and form the basis for a new trial and other cases implying the contrary. After making these findings, however, the court proceeded to find that the evidence at issue was admissible and thus that it did not need to resolve the conflict in its prior cases. See id.
When there is a conflict among circuits over a key issue, there is a clear need for the Supreme Court to resolve the conflict. When circut courts themselves are rendering contradictory opinions on the same issue, the need to resolve the issue becomes essential.
Tuesday, December 11, 2007
Take My Attorney, Please: Supreme Court Of Oregon Reverses Convictions Based Upon Lawyer Bashing Tape
The Supreme Court of Oregon has reversed a man's convictions after determining that the trial court improperly allowed the prosecution to play a tape in which the defendant criticized his court-appointed attorney. After a jury trial, Roy Norman Knight was convicted of sexually abusing his girlfriend's 13 year-old daughter. At trial, Knight testified in his own defense and claimed, among other, things that "he was a 'serious parent,' loved his children 'very much,' wanted to fulfill the expectations of his own and his girlfriend's children and wanted them to have good childhoods...."
After Knight testified, the prosecutor sought to impeach his testimony through the admission of a tape recording of a telephone conversation that Knight had with his mother while he was in jail awaiting trial. In this conversation, Knight made several statements where he claimed that his attorney was incompetent and that if his mother and his sister Jodie did not get him a better attorney, he would be signing his kids over to the state. Specifically, Knight told his mother, inter alia,
-"If you and Jodie cannot get me a good lawyer, I'm going to do my fucking time, I'm going to sign my kids over to the State of Oregon, and you guys will never fucking see me again;" and
-"Okay. Listen. Listen. I don't care what you've done -- what you have done. I'm telling you if I go to trial with this fucking attorney, I'm signing my kids over to the state, and I'm going to go and do my time, and then I'm going to live in Mexico. I am not going to live in American with a fucking sex beef on me at 55 years old."
At another point during the conversation, Knight told his mother she should sign a promissory note or a lien, or even rob a bank, to get money to hire a different lawyer for him. The trial judge found that much of the recorded conversation was inadmissible but that the prosecutor could ask Knight whether he threatened to turn his children over to the State of Oregon if he didn't get his way. According to the judge, the recorded conversation would be inadmissible unless Knight denied making the statement.
The prosecutor then asked Knight whether he threatened to turn his children over to the State of Oregon if he didn't get his way, and Knight acknowledged that he made the statement. Knight, however, then claimed that he made the statement because he thought that the State could provide his children with a "decent life" and because he did not want to impose on his aging mother and his sister. In response, the prosecutor claimed that Knight had opened the door for the tape being played, and, over defense counsel's objection, allowed the tape to be played to the jury.
On appeal to the Supreme Court of Oregon, Knight claimed that the tape should have been excluded pursuant to Oregon Rule of Evidence 403, which, like its federal counterpart, states that although relevant, evidence may be excluded if its probative value is substantially outweighed by dangers such as the danger of unfair prejudice.
The Supreme Court first noted that the tape had limited probative value to an issue that was -- at best -- not central to the prosecution's case. The Court also noted that the state could have impeached Knight through the use of other means which did not consist of Knight directly attacking his lawyer.
Looking at the tape's prejudicial effect, the Court concluded that "defendant's persistent references to trial counsel as 'this fucking attorney' and 'this motherfucker' undoubtedly focused the jury's attention on defendant's personal and professional conflict with trial counsel -- a conflict that had no relevance to any issue before the jury. Equally importantly, hearing defendant's remarks inevitably affected the jury's own perception of the competence and zealousness of defendant's trial counsel and, ultimately, of the strength of defendant's case. After the jury heard that defendant was unimpressed with his lawyer's ability, his cause was sunk. No juror thereafter was going to view defense counsel as more credible and persuasive than the prosecuting attorney."
The Court thus found the tape inadmissible and reversed the defendant's convictions. The Court's decision makes sense to me. While the prosecutor had every right to impeach Knight's testimony, it seems wholly unnecessary for him to have done so through the use of a tape where Knight primarily attacked his attorney. Furthermore, as the Knight court noted, courts have recognized that comments belittling a defendant's attorney jeopardize the defendant's right to a fair trial. See, e.g., In re Ochoa, 157 P.3d 184 (Ore. 2007).
California Supreme Court Accepts Enya, Rejects Celine Dion For Background Music In Victim Impact Statements
A jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon. During the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotape with a montage of photographs of Sara Weir's life, narrated by her mother. On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial.
The Supreme Court of California noted that while most courts allow for the introduction of such statements, two courts had not permitted the admission of videotaped victim impact statements. In United States v. Sampson, 335 F.Supp.2d 166, 191 (D. Mass. 2004), Judge Mark L. Wolf of the District Court for the District of Massachusetts found that it was proper to exclude a 27-minute videotaped victim impact statement with photographs of the victim because its probative value was substantially outweighed by the danger of unfair prejudice. The court in Sampson found the videotape to be prejudicial because "[t]he pictures were set to evocative contemporary music, including that of the Beatles and James Taylor." Id.
In Salazar v. State, 90 S.W.3d 330, 333 (Tex.Crim.App. 2002), the Texas Court of Criminal Appeals found that a trial judge improperly allowed jurors to see a 17-minute videotaped victim impact statement with photographs of the victim. As in Sampson, the court found that the videotape was unfairly prejudicial because it was accompanied by "such selections as 'Storms in Africa,' and 'River' by Enya, and conclude[d] with Celine Dion singing, 'My Heart Will Go On,' from the movie Titanic." Id.
The Supreme Court of California then attempted to distinguish these videotapes from the videotape in the Kelly case. The Court noted how the Sampson court characterized the Beatles and James Taylor music as "stirring" and indicated that the Supreme Court of California (1) had previously characterized the music in Salazar as "stirring," and (2) found that such music could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents." The Court, however, found that there was no prejudicial error in the videotape in the Kelly case because the Enya music in it was "generally soft, not stirring," with most of the words unrecognizable.
My conclusion from the Kelly cases is that judges seem pretty ill suited to be making these types of decisions. First, we have Judge Wolf in 2004 referring to the music of the Beatles and James Taylor as "contemporary." This was true when Judge Wolf was admitted to the bar in 1971, but but not so much in 2004 (Incidentally, my guesses for the songs played would be "In My Life" and "You've Got a Friend").
Then, we have the Supreme Court of California deeming Celine Dion's music as "stirring," while concluding that Enya's music is "soft." My idea of "stirring" music would be something by The Clash, but I would have to imagine that those "stirred" by Celine Dion would be "stirred" by Enya. Amazon has referred to Enya's music as soul-stirring, and the All Music Guide, among others, also characterizes her music as stirring. Heck, Peter Jackson even tapped her to write and perform songs to stir the emotions of viewers for The Lord of the Rings.
Perhaps judges should appoint experts under Rule 706 (maybe musicologists or music critics) to help them make these decisions. What sounds even better to me is an outright ban on background music in victim impact statements.
Monday, December 10, 2007
Where's The Beef?: West Virginia Supreme Court Reverses Circuit Court Expert Opinion Decision In Case Against Wendy's
The West Virginia Supreme Court of Appeals has restored a lawsuit against Wendy's after a circuit judge had dismissed the complaint on the ground that the plaintiffs' expert witnesses were not qualified to render expert opinions. In 2002, Clinton San Francisco and his wife, Jessie, went through the drive-thru at a Charleston Wendy's while on the way to taking their daughter to a hair appointment. Clinton ordered a single hamburger with mustard, onion, pickles and tomatoes. As he started eating the burger, however, Clinton commented that it was raw inside, tasted funny, and had a weird texture.
Clinton tossed the burger after eating about 1/4 of it, but his stomach felt queasy and he was sweating profusely; two hour later, he vomited and had diarrhea. When he was still in pain two days later, Clinton went to Logan General Hospital and vomited 1.8 liters of material while in the emergency room. While Clinton was at Logan General, Dr. Peter Gregor, a physician board certified in internal medicine and cardiology, performed a "differential diagnosis" on Clinton in which he considered and ruled out causes other than food poisoning for Clinton's illness. As a result, Dr. Gregor concluded to a reasonable degree of medical certainty that Clinton was suffering a foodborne illness caused by the Wendy's hamburger.
Based upon Dr. Gregor's diagnosis, the San Francisco's sued Wendy's on the ground that Clinton suffered his illness based upon Wendy's selling "unsafe, unwholesome, or unfit food product." During discovery, the San Francisco's contacted Ewen Todd, Ph.D., an expert in food safety and toxicology from Michigan State University. Relying upon a published scientific study, Dr. Todd concluded that there was E. coli bacteria in the ground beef in the Wendy's hamburger, that the bacteria produced verotoxin, and that Clinton's ingestion of verotoxin produced the rapid onset of Clinton's symptoms.
Wendy's thereafter moved for summary judgment dismissing the complaint on the ground that Dr. Gregor and Dr. Todd were not qualified to give expert testimony. The circuit court granted the motion, finding that Dr. Gregor was a cardiologist and not a specialist in gastroenterology or infectious disease and that Dr. Todd's opinion was based upon research that had been subjected to limited publication and peer review.
On appeal, the West Virginia Supreme Court of Appeals had to determine whether the doctors could be qualified as experts pursuant to West Virginia Rule of Evidence 702, which is based off of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and which asks the court to determine whether the expert is qualified to testify as an expert, the reliability of the scientific theory undergirding the expert's conclusions, and the relevance of the expert's testimony.
As the West Virginia Supreme Court of Appeals noted, there are several factors which a court can apply in determining reliability, such as "whether the scientific theory and its conclusion can be or have been tested; whether the scientific theory has been subjected to peer review and publication; whether the scientific theory's actual or potential rate of error is known; and whether the scientific theory is generally accepted within the scientific community." The court, however, acknowledged that sometimes a scientific theory first appears in court because, inter alia, an expert's testimony is not novel and is therefore of little publication interest.
The West Virginia Supreme Court of Appeals first found that Dr. Gregor was qualified as an expert because, while he was not a specialist in gastroenterology, from 1979 to 2002, he treated numerous gastrointernal conditions. This holding seems proper in light of the fact that courts are typically liberal in qualifying witnesses as experts. The court next found that Dr. Gregor's differential diagnosis was based upon a reliable scientific theory and relevant, which is in accord with case law. See Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1123 (10th Cir. 2004) (collecting cases where courts have held that differental diagnoses were sufficiently reliable under Rule 702).
With regard to Dr. Todd, there was no question about his qualifications, and the only issue was whether the scientific theory that he used was reliable. The West Virginia Supreme Court of Appeals acknowledged that Dr. Todd only relied upon one published study and that his scientific method was likely used only by a "minority of scientists in the field;" however, the court found that his theory regarding E. Coli/verotoxins was not novel and would not warrant a great interest in publication because food poisoning is a fairly common illness.
The court also found that it could treat Dr. Todd's expert qualifications themselves as circumstantial evidence that he used a scientifically valid methodology. Again, it seems to me that the court acted properly in allowing an expert in food safety and toxicology to render his opinion as to whether Clinton suffered from foof poisoning. Thus, I think that the court acted correctly in reversing and allowing the case to go forward.
In Good Faith: Arkansas Case Reveals State's Good Faith Version Of The Exclusionary Rule In Revocation Proceedings
A recent decision by the Court of Appeals of Arkansas reveals that Arkansas courts appear to have different rules regarding the applicability of the exclusionary rule in parole and probation revocation proceedings than do federal courts and most other state courts. In Stephens v. State of Arkansas, John Abraham Stepehens had pleaded nolo contendere in 1995 to several drug offenses and was sentenced to fifteen years imprisonment, with twelve and one-half years of that sentence suspended.
In 2006, a neighbor called police about a domestic disturbance at Stephens' home, and when the police arrived, Stephens' wife was leaving in her automobile. The officers then went to the door, announced their presense, and received no response. They thereafter entered the house without a warrant, later claiming that they saw playground equipment outside Stephens' home, which led them to think that there might be other victims -- especially children -- inside. Instead, they found the defendant and illegal drugs and drug paraphernalia. The police later conducted additional searches of Stephens' home with the consent of his wife and a search warrant.
At the hearing to revoke his suspended sentence, Stephens argued that the evidence obtained by the police officers was inadmissible pursuant to the exlcusionary rule, which prevents the admission of evidence obtained in violation of a defendant's Fourth Amendment rights in certain types of cases. Unfortunately for the defendant, the United States Supreme Court has found that the exclusionary rule is not a Constitutional right and has declined to extend it to revocation proceedings because its deterrent effect to improper police behavior would be minimal. See Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 327, 362-69 (1998).
Of course, this decision does not prevent states from affording their citizens greater Constitutional protections, although most states have concurred with the Supreme Court that the exclusionary rule does not extend to revocation proceedings. See, e.g., Logan v. Commonwealth, 651 S.E.2d 403, 404 (Va.App. 2007). That said, some courts have found that the exclusionary rule does extend to revocation proceedings. See, e.g., Wallace v. State, 964 So.2d 722, 726 (Fla.App. 2 Dist. 2007).
According to the court in Stephens, Arkansas has taken an approach that falls somehwere in the middle. Specifically, in Dabney v. State, 646 S.W.2d 4, 5 (Ark. 1983), the Supreme Court of Arkansas found that "the exclusionary rule does not apply strictly in a proceeding to revoke probation or parole" and that evidence that would be prohibited under the exclusionary rule at a formal trial is admissible at such a proceeding as long as the officers acted in "good faith." Thus, as the Stephens court noted, the exclusionary rule does apply in revocation proceedings when the defendant can prove bad faith on the part of the officers. However, because Stephens could not prove that the officers who searched his home without a warrant acted in bad faith, the evidence obtained was admissible against him.
Frankly, I think that I like Arkansas' approach. I can see why the Supreme Court found that the exclusionary rule should not apply to revocations proceedings because it would have a limited deterrent effect. At the same, having such a categorical rule essentially gives police officers carte blanche if they know that an individual is on parole or has a suspended sentence. By having its "good faith" safeguard, Arkansas seemingly adheres to the spirit of the Supreme Court's decision while still maintaining some deterrent effect.
Sunday, December 9, 2007
I Met A Man With Seven Wives: Mississippi Court Finds Spousal Privileges Inapplicable In Bigamy Case
A bigamy case from Mississippi raises an interesting question regarding how the spousal evidentiary privileges apply in cases of bigamy/polygamy, a question with renewed relevance in a world with the Warren Jeffs case, Big Love, Mitt Romney, and Under the Banner of Heaven. In David Gene Burnett Butt a/k/a David Gene Burnett v. State of Mississippi, 2007 WL 4170820 (Miss.App. 2007), the defendant was convicted of bigamy and false pretenses. At trial, Pamela Dwyer, testified that she had been married to the defendant for 10 years when, in 1998, he disappeared while out on a shrimping boat. When he hadn't returned by 2002, Pam successfully petitioned a court to have the defendant declared dead, thus ending their marriage.
Margaret Corley then testified that she met the defendant in 1998 and that the defendant and she married in 1999. About three months later, Margaret suffered from a stroke, which resulted in Margaret granting the defendant power of attorney. With this power, the defendant withdrew $60,000 from Margaret's IRA and placed it in a jont account. The defendant then invested almost $50,000 of this money into a Monex account that was only in his name. The defendant subsequently witndrew the balance of the Monex account, withdrew $7,500 from the joint account, and disappeared.
After the defendant was found and convicted, he appealed on the ground that Pamela's testimony against him was precluded under either of Mississipi's spousal privileges. Section 13-1-5 of the Mississippi Code of 1972 states that in most cases a spouse is not a competent witness and thus cannot testify against the other spouse. This section, however, did not apply to Pamela's testimony because Pamela was no longer the defendant's wife.
Meanwhile, Mississippi Rule of Evidence 504 states that "[i]n any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse." This Rule, however, did not apply to Pamela's testimony because she was not testifying about private communications between the defendant and her; she was only testifying about how the defendant married and abandoned her.
This led me to ask, though, what might have happened if Pamela and the defendant were still married when the defendant took a second wife and/or if Pamela sought to testify about private communications between the defendant and her. Spousal privilges typically have exceptions allowing a spouse to testify against his/her spouse when the other spouse is charged with a crime "against" the testifying spouse or their children. Mississippi Rule of Evidence 504, for instance, allows for the testimony of a spouse against his/her spouse when the latter is charged with a crime against, inter alia, the person or property of the other spouse. Typically, these exceptions apply in cases of domestic violence, but this case led me to wonder whether these exceptions would apply in cases of bigamy/polygamy.
It turns out that the Supreme Court of Mississippi actually resolved this issue in the 1925 case of McQueen v. State, 104 So. 68 (Miss. 1925). The court rejected the argument that bigamy constituted a crime by a husband against a wife. It found that the crime of bigamy was in the nature of a public wrong and that the former wife could not believe that her husband was guilty of a crime and thus have "no desire or interest in convicting her husband as having done a wrong to her." Id. at 169.
I disagree with this rationale. There are plenty examples of battered wives later deciding that they don't want their husbands prosecuted after it is too late for the charges to be dropped. And yet, in these cases, the exceptions to the marital privileges clearly apply. In my mind the same should apply in bigamy/polygamy cases. Sure, in these cases, the husband is committing a crime against the public, but he is also clearly committing and crime against his wife. I admit that things become considerably more complicated when polygamy is part of a family's religion, but it seems clear to me that the defendant's bigamy was a crime against his first wife, Pamela.
Saturday, December 8, 2007
A recent case in Texas state court reveals an important distinction between the Texas Rules of Evidence and the Federal Rules of Evidence concerning the admissibility of statements against interest. Pursuant to Federal Rule of Evidence 804(b)(3) and most state counterparts, when a declarant is unavailable to testify at trial, his prior statement is admissible if it was "at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
Courts generally preclude the admission of hearsay statements, but the theory of admissibility for statements against interest is that a person is unlikely to lie in a manner that would cause him to lose money, property, or his freedom. The Advisory Committee Notes to Rule 804 further indicate that the unavailability of the declarant is required because at common law the "statement against interest" exception was among those hearsay exceptions which evolved in connection with the unavailability requirement.
Texas Rule of Evidence 803(24), which contains its "statement against interest" exception, differs from the federal rule in two key regards. First, the declarant does not need to be unavailable for the exception to apply. Second, Texas Rule of Evidence 803(24), in addition to covering the types of statements listed in the federal rule, also covers statements which would "make the declarant an object of hatred, ridicule, or disgrace."
In Lewis v. State, 2007 WL 4260327 (Tex.App.-Waco 2007), Timothy Lewis was convicted of capital murder in connection with the death of four year-old Tyrone Fenner, his stepson. At trial, Timothy argued, inter alia, that Tyrone's death was caused not by him but by his mother, Virginia. Tyrone sought to prove this allegation in part through Virginia's statement seven weeks before Tyrone's death to her mother-in-law. See id. at *2. Specifically, Virginia, who was nine months pregnant at the time, allegedly told her mother-in law, "I hate kids. I hate kids. I wish they would die." Id. Lewis argued that this statement was admissible pursuant to Texas Rule of Evidence 803(24) because it "would make Virginia the object of disgrace." Id.
The trial court, however, found that Virginia's statement was inadmissible, and the Court of Appeals of Texas agreed. The Court of Appeals noted that a reasonable woman who was nine months pregnant "could claim to hate children out of frustration and not because she actually harbors hate." Id. at *3. It further found that Virginia's statement was "not so unreasonable that a person in her position would not have made the statement unless she believed it to be true." Id. The court then contrasted Virginia's statement with statements it had found admissible under Texas Rule of Evidence 803(24) such as a declarant's statement that he was H.I.V. positive and a clergyman's statement that he had a homosexual encounter in a public bathroom.
I'm not sure that I understand how Texas courts apply their rules. The court in Lewis focused at least partially on the fact that Virginia's statement could have been made out of frustration and not because she actually harbored hate for children. I can see how this statement makes sense, but I don't see how it's relevant to the issue of whether her statement subjected her to ridicule. Furthermore, if the court's theory was that Virginia's statement really just showed her frustration, her statement would have been non-hearsay because it would not have been offered to prove the truth of the matter asserted in the statement.
Friday, December 7, 2007
A judge in Knox County Criminal Court in Illinois has made what I can only characterize as a bizarre evidentiary ruling in the post-conviction hearing for Charles W. Campbell. In 1992, after a jury trial, Campbell was convicted of armed robbery and sentenced to life imprisonment under the habitual criminal act. Robert Taylor was a juror in that case, and he was later called for jury duty in 2002, at which point he told the court that was not sure that he could be fair and impartial because in the Campbell case two other holdouts and he eventually succumbed to pressure by other jurors to find Campbell guilty despite thinking that there was insufficient evidence against him.
Based upon these statements, Taylor moved for a post-conviction hearing, alleging that his Constitutional rights had been violated. The hearing is being held before Ninth Circuit Judge James Stewart, who warned Taylor that there was a possibility of criminal charges being filed against him for jury misconduct depending on his potential testimony. The judge then advised Taylor of his right to remain silent, Taylor then invoked his right, and the court dismissed him.
Over the objection of the Knox County State's Attorney, however, the judge allowed two men who had conversations with Taylor about the jury deliberations to testify. Reverend Tyson Haywood, and his brother, Terry, both testified that Taylor told them about the doubts he had about Campbell's guilt and how he aceded to the opinions of other jurors.
The judge's rulings are baffling to me. Judge Stewart shouldn't have told Taylor that he could have faced charges if he testified; he should have told him that he was precluded from testifying. Federal Rule of Evidence 606(b) states that jurors can't testify about their thought process in reaching a particular verdict, but that they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. Illinois doesn't have a statutory counterpart to this Federal Rule, but in People v. Holmes, 372 N.E.2d 656, 660 (Ill. 1978), the Supreme Court of Illinois quoted the federal rule with approval.
In Chalmers v. City of Chicago, 431 N.E.2d 361, 363 (Ill. 1982), the Supreme Court of Illinois later noted: "It is well established in this State, and almost universally recognized, that a jury may not impeach its verdict by affidavit or testimony which shows the motive, method, or process by which the verdict was reached." While I was unable to find an Illinois case directly dealing with the issue of pressure from other jurors, there are manifold examples of other courts holding that jurors could not testify after a verdict that they changed their vote after buckling from pressure by other jurors. See, e.g., United States v. Lloyd, 462 F.3d 510, 519 (6th Cir. 2006).
Of course, not only did the judge thus incorrectly instruct Taylor, but he then compounded his error by allowing the Haywood brothers to testify about Taylor's statements to them about the jury deliberations. Their testimony was not only inadmissible pursuant to the principles behind Rule 606(b), but they also constituted hearsay in that the Taylor brothers were testifying to Taylor's out of court statements to prove the truth of the matter asserted in them. I also note that depending on the nature of Taylor's statements to Reverend Tyson Haywood, the statements could have been protected from disclosure under Illinois' privilege for confessions and admissions made to members of the clergy.
Burning Down The House: South Carolina Court Finds Confession Letter Inadmissible Despite Rule 804(b)(3)
Jeremy Phillips is on trial, facing charges that he beat his neighbor, Juan Roman, and set fire to his mobile home, resulting in Roman's death in August 2006. Based on testimony that has been given against him in his case, it looks likely that he will be convicted, although he was successful in having one key piece of evidence excluded.
Shannon Powell testified for the prosecution that after Roman's death, Phillips told her that he placed a PVC pipe in Roman's mouth, poured gasoline in the opening, and flipped a lighted object in, resulting in Roman being "lit up like a Roman candle." This testimony was admissible becuase Phillips' alleged statements constituted admissions, which are non-hearsay under South Carolina Rule of Evidence 801(d)(1).
Also testifyng against Phillips was Nakia Moss Gosett, Phillips' girlfriend. Gosett claimed that she was outside Roman's mobile home shortly before the fire started and that she saw Phillips and Jesse Willis inside. She testified that she saw Phillips and Willis kicking and stomping Roman with their steel-toed work boots, leaving him in a pool of blood. Willis and Gossett have also been charged in connection with Roman's death and await later trials.
When the prosecutor attempted to introduce a letter in which Willis admitted to setting the fire, however, the judge sustained defense counsel's objection that the letter was hearsay. I'm not sure that the court's decision was correct.
The letter does meet the definition of hearsay under South Carolina Rule of Evidence 801(c): it is an out of court statement which was offered to prove the truth of the matter asserted in it. At the same time, there is an exception to the rule against hearsay in South Carolina for statements against interest. Under South Carolina Rule of Evidence 804(b)(3), "[a] statement which at the time of its making...so far tended to subject the declarant to civil or criminal liability...that a reasonable person in the declarant's position would not have made the statement unless believing it to be true" is admissible as an exception to the rule against hearsay. Here, clearly WIllis letter exposed him to criminal liability in connection with Roman's death.
The problem, though, is that the hearsay exceptions contained in South Carolina Rule of Evidence 804 require that the declarant be "unavailable" to testify at trial. Under South Carolina Rule of Evidence 804(a)(1), however, a declarant is "unavailable" when he is "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Here, presumably if the prosecutor called Willis as a witness, he would have claimed his Fifth Amendment right against self-incrimination, rendering him "unavailable" under South Carolina Rule of Evidence 804(a)(1). Thus, my guess would be that either the prosecutor erred by failing to call Willis or by failing to argue South Carolina Rule of Evidence 804(b)(3) when trying to admit the letter, or that the court erred by holding the letter inadmissible.
Thursday, December 6, 2007
Article Of Interest: Professor Deirdre Smith Addresses The Role Of Medical Evidence In The ADA Definition of Disability
Professor Deirdre Smith of the University of Maine School of Law has written a fascinating forthcoming article for the Tulane Law Review. The article, "Who Says You're Disabled: The Role of Medical Evidence in the ADA Definition of Disability," argues that many courts are improperly and perniciously requiring that plaintiffs bringing claims under the Americans with Disabilities Act produce expert medical evidence to establish that they meet the statute's definition of an individual with a disability lest they have their claims dismissed at the summary judgment stage.
Part of the article addresses the legal improprietary of such a requirement. Professor Smith notes, for instance, that requiring ADA plaintiffs to produce such expert medical evidence to "corroborate" their claims that they have disabilities runs contrary to the general rule that, at the summary judgment stage, the court should not resolve issues of credibility.
The article also delves into a rich and detailed analysis of how the "medical corroboration" requirement runs contrary to the very aims of the ADA. Before the ADA, a disability was viewed as something "wrong" with the disabled person, a condition that a doctor could conclude rendered him or her powerless to deal with the world. In passing the ADA, there was an attempt to shift from this "medical model" of disability to a broader and more empowering conceptualization of the term.
Judges' continued insistence on corroborating medical evidence as the sine non qua of an ADA claim stunts any such re-conceptualization and makes the "medical model" sacrosanct. Furthermore, as Professor Smith notes in analysis with both legal and social implications, not only do judges requiring corroboration medical evidence reinforce the "medical model;" they also express a judicial skepticism of disability claims, under which judges signal that we should be wary that those claiming disabilities are engaging in malingering.
After reading the article, I e-mailed Professor Smith to ask her what led to write the article, and she responded,
"In terms of what led to writing the article, it was really several factors. Most ADA scholars have spent much time scratching their heads about the incredibly lopsided pro-defendant results on summary judgment motions and trying to identify the specific reasons why the numbers seem so skewed. My own interest has long been about the intersection of medicine (especially psychiatry) and law, and the ADA case law provides a great laboratory in which to examine it. I've been stumbling around the mental illness cases for awhile looking at the role of experts & psychiatry (my earlier piece on personality & the ADA came out of that). Then I came across one of the fibromyalgia cases in which the D got summary judgment because the only evidence in the record was the plaintiff's description of her significant pain and limitations, and that led me to doing a broader examination of this pattern. I was stunned to find the large number of cases that seemed to turn on this, and the rationales were surprising as well. I was also surprised to see a number of plaintiffs lose because their doctors had said something at a deposition that was at variance with the plaintiff's own description of her disability. As I mentioned this research to some colleagues and friends the response was nearly universallly something to the effect of "Well, how do we know whether they are faking the disability? Shouldn't they have to show some medical proof to win?" That inspired me to look at some of the potential cultural (legal and nonlegal) underpinnings of the trend in the cases. Finally, I think I had in the back of my mind the experience of representing the deaf couple mentioned in the footnote towards the end of the piece whose privacy and dignity were nearly disregarded during the discovery process by the focus on whether they were "really disabled" (although they attended deaf schools and used ASL) and therefore really needed an ASL interpreter at the doctor. I sent them for audiological exams (which, of course, they hadn't undergone in years) and the defendants sought in discovery their complete educational records (one of my clients was 50 years old), their medical records, their marital counseling records, and recordings of when they had called 911. (The jury found both of the clients to be disabled but found discrimination only against one of them... a strange result and a long story)
I had a lot of fun writing the piece. I too hope that judges read it, and that plaintiffs lawyers read it as well and raise some of the points in their oppositions to summary judgment motions. Unfortunately, some of the bad case law is due to poor lawyering by plaintiffs' counsel at times but then the precedent is set for everyone. I also think that judicial notice has been under-used in this context."
As I wrote to Professor Smith, I feel that this is an extremely compelling article, and I sincerely hope that the readers of this site and judges across the country have the opportunity to read it.
Without Prejudice: Minnesota Court Likely To Find Felony Metamphetamine Posessesion Conviction Admissible Under Rule 609(a)
Timothy James Everson faces a string of misdemeanor charges in connection with a fatal traffic accident in Minnesota this March. Specifically, Everson was driving a semi that collided with a minivan driven by the pregnant Lisa Johnson. Johnson suffered serious injuries from the accident; her unborn child was killed. Everson has been charged with careless driving, having inoperative defective brakes, having none or an inoperative brake warning device, having clamp type brakes out of alignment, and driving a commerical motor vehicle while disqualified. Prosecutor Laurie Anderson has asked the judge hearing the case to allow into evidence the fact that Everson was convicted of felony metamphetamine posessesion in 2006 should Everson testify at trial to discredit is testimony. Everson's attorney has countered that the prejudice that Everson would suffer from the introduction of this conviction would outweigh any probative value it might have.
Minnesota Rule of Evidence 609(a) states, inter alia, that a witness can have his credibility attacked by introduction of a felony conviction if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect. A couple of factors make it likely that the court will find Everson's conviction admissible should he testify. First, the conviction is very recent, and courts generally find that recent convictions are highly probative of a witness' credibility. See, e.g., State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007). Second, a prior conviction's prejudicial effect is typically directly proportional to its similarity to the charges at issue. See id. Thus, were Everson charged with driving while under the influence, his prior conviction would be prejudicial because it might lead jurors to infer that he had a propensity to use drugs/alcohol and that he acted in conformity with that propensity at the time of the alleged crime. As noted above, however, there is no contention in the Everson case that he was drunk and/or high at the time of the accident. Finally, while drug possession is not a crime which is directly probative of a witness' credibility like perjury or tax fraud, courts have generally been open to admitting drug possession convictions on the ground that they bear some logical relationship to witness' credibility. See, e.g., State v. Flemino, 721 N.W.2d 326, 329 (Minn.App. 2006). It thus seems likely that the court will rule in the prosecution's favor on this issue.
Wednesday, December 5, 2007
Doctor, Doctor, Give Me the News: Utah Court Finds Motive Defense Leads to Potential Waiver Of Physician-Privilege
In 2005, B.W., the adoped daughter of Leroy Worthen and his wife, attempted suicide and was admitted to the University of Utah Neuropsychiatric Institute. During a mental health examination, B.W. claimed that there had been a lot of family strife recently and that she had been getting in frequent fights with her mother. She claimed that she had been abused by her biological granparents but denied any other abuse. She also claimed that prior to her suicide attempt, she got into a heated argument with her mother.
B.W. later received inpatient and outpatient therapy and counseling, during which she wrote journal entries describing angry feelings toward her mother. A few weeks after writing her last journal entry, B.W. disclosed to her therapist that Leroy had sexually abused her. Specifically, she claimed that he committed numerous acts of abuse against her over the course of several years. Based upon these allegations, Leroy was charged with ten counts of aggravated sexual abuse of a child.
At a preliminary hearing in Leroy's case, his attorney sought to question B.W. about her journal entries. Upon the prosecution's objection that these entries were covered by Utah's physician and mental health therapist-patient privilege, Leroy's attorney contended that the entries went to motive and were admissible for impeachment purposes. Defense counsel claimed that his theory of the case was that B.W. hated her adoptive parents and thus fabricated the allegations in order to be removed from their house; the journal entries helped prove this motive.
The court thus had to determine whether it should review the evidence Leroy sought in camera because it was potentially admissible or whether no such review was necessary because it was inadmissible under Utah's physician and mental health therapist-patient privilege. That privilege, contained in Utah Rule of Evidence 506, states that if information is communicated in confidence and for the purpose of diagnosing or treating a patient, the patient has the privilege, during the course of the patient's life, to refuse to disclose and to prevent any other person from disclosing the information transmitted, the diagnosis/treatment, etc.
The privilege, however, has a few exceptions, such as 506(d)(1), which states that no privilege exists under Rule 506 when the patient's condition is an element of a claim or defense. Thus, for instance, if the plaintiff is claiming severe neck injuries after a car crash with the defendant, the plaintiff's statements to her doctor about the extent of her neck pain and the doctor's diagnosis would not be privileged because the defendant would be entitled to show that the plaintiff was exaggerating or making up her neck injury.
The prosecution, however, claimed that (1) because motive is not an element of any crime, it cannot be an element of any defense, and (2) that previous Utah cases had found, sub silentio, that impeachment evidence cannot constitute an element of a defense under any circumstances. The court rejected these arguments and held that it would review the evidence in camera.
In rejecting the prosecution's first argument, the court found that elements of a criminal offense do not necessarily correlate with the elements of a criminal defense. This makes sense to me. Clearly, for instance, insanity and diminished capacity are not elements of any criminal offense, but they are both clearly criminal defenses that defendants can raise.
In rejecting the prosecution's second argument, the court found that the previous cases cited by the prosecution found that evidence which generally impeaches the credibility of a witness cannot constitute an element of a defense; they did not find that evidence which indicates that a witness has a specific reason to lie in the case at hand cannot constitute an element of a criminal defense.
This distinction also makes sense to me because it is consistent with how courts treat these different types of impeachment evidence in other cases. Under Federal Rule of Evidence 608 and state counterparts, extrinsic evidence is inadmissible when a witness is being impeached generally, but extrinsic evidence is admissible when a witness is being shown to have a specific reason, such as bias against the defendant, to lie in the case at hand.
The Lone Ranger and Tonto Fistfight in Heaven: Utah Judge Reverses Verdict After Evidence of Juror Racial Bias
A judge of the United States District Court for the District of Utah has entered a landmark ruling in that court's application of Federal Rule of Evidence 606(b). An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged.
After the verdict was entered, however, a problem soon arose. When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves. Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about a need to send a message to the reservation.
Upon submission of an affidavit by Cano asserting these allegations, United States District Court Judge Dale Kimball vacated Benally's conviction and ordered a new trial because jurors had failed to answer honestly when asked about whether they had any preconceived notions about Native Americans. The U.S. Attorney's Office is currently considering whether to appeal the court's decision.
Federal Rule of Evidence 606(b) states that jurors can't testify about their thought process in reaching a particular verdict, but they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. See, e.g., People v. Steele, 47 P.3d 225 (Cal. 2002). Thus, Cano's affidavit would have been admissible if it stated that a newspaper article talking about inadmissible evidence in the case found its way into the jury deliberation room or if it stated that a relative of the officer or defendant threatened a juror.
However, Cano's affidavit would have been inadmissible if it stated that jurors ignored jury instructions, considered evidence that was presented in the case but later stricken from the record, or, according to some courts, stated that jurors used racial slurs. See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that juror's proffered testimony that other jurors used racial slurs against Native Americans during trial was inadmissible under Rule 606(b)). Some courts, however, have expressed the viewpoint that precluding evidence of racial slurs used by jurors might violate the 14th Amendment. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995).
The United States District Court for the District of New Mexico addressed this issue in dicta last year in United States v. Foghorn, 2006 WL 4017477 (D.N.M. 2006), a case somewhat factually similar to the Benally case. In Foghorn, a Native American man appealed a jury verdict finding him guilty of second degree murder and kidnapping based in part on a juror affidavit claiming that another juror made the remark, "those poor Indians and their alcohol." Id. at *28. The District Court noted that there had been Tenth Circuit cases where courts declared mistrials when it was revealed during trial that a juror or juror made racial slurs. See id. at *29.
The court then found, though, that no Tenth Circuit opinion had conclusively addressed the issue of whether "a court may consider post-verdict evidence of racial bias in harmony with rule 606(b)." Id. The court additionally noted that courts in other jurisdictions were split over the issue. See id. After all of this discussion, however, the District Court found that the juror's statement was "ambiguous and subject to interpretation" and thus that it could not support reversal even if it were considered. Id. at 30. The Benally case thus appears to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict.