November 3, 2007
Collateral Damage: Shane Ragland's Guilty Plea Means Motion for Summary Judgment Should Be Granted in DiGiuro Wrongful Death Suit
In 2002, Shane Ragland was convicted of murder based upon allegedly killing University of Kentucky football player Trent DiGiuro after DiGiuro kept him out of a fraternity. That conviction was later reversed after a judge determined that the prosecutor made an inappropriate comment during trial and used inadmissible evidence concerning a bullet. Before a new trial was held, however, Ragland pleaded guilty to manslaughter.
DiGiuro's family has now brought a civil wrongful death suit against Ragland and moved for summary judgment on the ground that Ragland's guilty plea automatically establishes his liability. Ragland's attorney has countered that there is no Kentucky case law that automatically establishes liability after a guilty plea.
A quick Westlaw search, however, finds that Kentucky, like most states, follows the doctrine of collateral estoppel, which prevents a party from re-litigating a question that was actually litigated and determined by judgment in a prior action. Thus, for instance, in the recent case, C.L.N. v. T.R.R., 2007 WL 2285804 (Ky.App. 2007), the Kentucky Court of Appeals dismissed a defendant's appeal from a trial court order granting the plaintiff's motion for summary judgment on her civil lawsuit seeking to recover damages resulting from the defendant sexually abusing her. The trial court had granted the motion on the ground of collateral estoppel because the defendant had pleaded guilty to sexual abuse in the 3rd degree in the criminal trial covering the same incident. The same analysis should apply in the Ragland case.
November 2, 2007
Hillary Censored?: Judge Finds Hillary Clinton's Videotaped Statement Inadmissible in Stan Lee Media Case
Some of you may have heard about the recent allegations involving the Clintons and their alleged reneging on a deal that they had with fledgling Stan Lee Media in 2000. Apparently, many of you might have heard about the allegations because the trailer for the upcoming documentary "Hillary Uncensored," which documents these allegations, has been the #1 most viewed piece on Google video.
Here's a threadbare introduction to the facts. Peter Paul and pal Stan Lee (of comic book fame) started Stan Lee Media and sought to have Bill Clinton sign on as a "rainmaker" to promote the business overseas. Apparently, the quid pro quo for Clinton's participation was to consist of Paul becoming a major donor for Al Gore's Presidential campaign and Hillary Clinton's senatorial campaign. Paul claims that part of this support, which totaled $2 million, was a $68,000 fundraiser involving celebrities such as Brad Pitt, John Travolta, and Jennifer Aniston.
According to Paul, however, the Clintons backed out when they learned that he had past felony convictions and acted as if they didn't know him; not only did Bill fail to promote Stan Lee Media, but he also lured away one of its chief investors. Paul has thus sued the Clintons in California, claiming that their actions destroyed Stan Lee Media and violated several U.S. statutes. For her part, Hillary has claimed, inter alia, that she barely knew Paul and that he is a criminal and professional liar who cannot be trusted.
I don't know nearly enough about this lawsuit to be able to say whether it has any merit, but I am confused by an evidentiary ruling made by the judge hearing the case. Part of "Hillary Uncensored" consists of a video of a conference call apparently concerning the fundraiser with Paul, Stan Lee, Aaron Tonken, and Alana Stewart on one end, and Hillary on the other end.
In the video, Hillary says, "Whatever it is you're doing, is it OK if I thank you? ... I am very appreciative and it sounds fabulous. I got a full report from Kelly (White House adviser Kelly Craighead) today when she got back and told me everything that you're doing and it just sounds like it's going to be a great event. But I just wanted to call and personally thank all of you. I'm glad you're all together so I could tell you how much this means to me, and it's going to mean a lot to the president, too."
According to this article, the judge hearing the case recently ruled that the video was inadmissible at trial. Maybe there are factors at play of which I'm not aware, but I don't see why this video would be inadmissible under California's Evidence Code. Section 1220 of California's Evidence Code states that "[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statememt was made in his individual or representative capacity."
Hillary is the declarant who made the statement, and Paul is offering it against her in an action in which she is a party to dispute her claim that she either didn't know him or barely knew him. Perhaps there is some other reason why the video was excluded, but it shouldn't have been on the ground that the statement was inadmissible hearsay.
Complete Nonsense: Third Circuit Makes Erroneous Rule of Completeness and Brady Rulings in Joseph Noble Appeal
Yesterday, I wrote about how a North Dakota judge incorrectly applied the rule of completeness by allowing the prosecution to introduce the entirety of Moe Gibbs' taped statement to police into evidence after Gibbs only wanted the portions of the tape where he denied the murder of Mindy Morgenstern introduced. Well, the United States Court of Appeals for the Third Circuit recently made the opposite mistake in United States v. Noble, 2007 WL 3133065 (3rd Cir. 2007) in addition to making a possibly erroneous Brady ruling.
After a jury trial in federal district court, Joseph Noble was convicted of kidnapping, in violation of 18 U.S.C. Section 1201(a). In November, 2004, Noble had an argument with his wife, Joanne. She then left to go to her stepsister Krislyn's house in South Philadelphia. A few days later, Noble called Joanne and told her that their children were sick and that he wanted to see her. Joanne agreed to meet him outside Krislyn's house.
According to Joanne, when Noble arrived, he invited her to lunch, but she declined. When Joanne declined, Noble picked her up despite her kicking and screaming, and put her in his car. At this point, Krislyn called the police. Joanne claimed that Noble then drove like a maniac, eventually arriving at a hotel in Kingston, New York, where he twice forced her to have intercourse. She also claimed that while Noble was driving, she heard police sirens and believed that police cars were following them.
The next day, Noble drove back to Philadelphia and upon learning that the cops were looking for him (apparently in response to Krislyn's call), he dropped his family off at his lawyer's office. While there, Joanne called a detective, who later took her to the hospital, where pictures were taken of a bump on her head and bruising on her arm, which she claimed were the result of Noble forcing her into the car.
At trial, it seems as if Noble's major defenses were (1) that Joanne eventually consented to the trip and that the prosecution failed to prove that he took Joanne acrss state lines without her consent, a required element under 18 U.S.C. Section 1201(a), and (2) that he wasn't acting in his right mind at the time of his alleged incident because Joanne was drugging him because she was having an affair. In addition to claiming that the evidence at trial was insufficient to support his conviction, Noble raised two evidentiary challenges on appeal.
First, he claimed that the judge erred in allowing the prosecution to introduce excerpts of letters he wrote to his wife and children while preventing him from introducing the entirety of those letters. Federal Rule of Evidence 106 states that "[w]hen a writing or recorded statement or part thereof is introduced, 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 to be considered contemporaneously with it." Like most courts, the Third Circuit has found that this Rule means that an entire statement can be introduced when portions of it are introduced into evidence and the entire statement is needed to explain the admitted portion or place the admitted portion in context.
One of the excerpts from Noble's letter to Joanne read, "Jo, I didn't go see you for sex. I wanted the kids to have their mommy back....I'll never sin against you again. I was wrong." On appeal, the Third Circuit found that the judge did not err in refusing to allow the entirety of the letters into evidence because they did not explain the admitted portions or place them in context; instead, they were rambling, stream of consciousness descriptions of Noble's thoughts while he was in prison, including his new found commitment to religion.
I disagree with this conclusion. First, if I were a juror hearing the excerpt listed above without reading the entirety of the letters, I would conclude that Noble was admitting that he was legally guilty of some crime. If, however, I were able to see that the excerpt was part of a letter where Noble was stating his new found commitment to religion, I might have concluded that his statements were religious confessions, not necessarily confessions connected to a legal crime.
Furthermore, just hearing the excerpt listed above, I might have concluded that Noble's letters were clear and concise admissions of his guilt. If, however, I were able to see that the excerpts instead were mixed in with other stream of consciousness ramblings, I might have given them less weight. In other words, the entire letters both explained and put into context the admitted portions of the letters.
Second, Noble claimed that a new trial was required because the prosecution failed to disclose to him that Joanne had been arrested and charged with 5 misdemeanors in connection with her attempt to purchase marijuana in November, 2005. Under the Brady doctrine, a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence, including impeachment evidence. On appeal, the prosecution acknowledged that it failed to timely disclose this evidence, and the only question was whether the evidence was material in that there was a reasonable probability that the evidence would have affected the outcome at trial.
Noble claimed, inter alia, that this evidence helped prove his claim that he wasn't acting in his right mind because Joanne was drugging him. The Third Circuit rejected his claim. They did so, however, not because his claim was ludicrous, but instead because Joanne had already called into question her own credibility.
The Third Circuit noted that Joanne admitted to using Percocet with Noble around the time of the incident. She also admitted to having an affair, although she claimed that the affair started after the alleged kidnapping. Most importantly, she admitted that (apparently before the alleged kidnapping) she twice secretly put pills into Noble's tea and then snuck out of their house after he fell asleep. The Third Circuit then concluded that in light of this other evidence, the evidence that Joanne was arrested for trying to purchase marijuana was not likely to have affected her credibility in any significant degree.
To me, this conclusion makes no sense. I could understand if the Third Circuit concluded that Noble's allegations were preposterous and that any damage the undisclosed evidence could have done to Joanne's credibility would not have been enough to change the jury's verdict. But what the Third Circuit seemed to say instead was that Joanne had already done maximum damage to her credibility so that this additional evidence couldn't have damaged her credibility any more. I have great trouble accepting this conclusion when Joanne was the key prosecution witness whose testimony essentially had to be accepted for Noble to be convicted.
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.
Boys on Film, Take 2: Military Doctor Trial With "Gay Exception" to Rule Against Character Evidence Begins
Earlier this month, I wrote about a military judge's homophobic pre-trial decision to allow jurors to view gay pornography found on the home computer of a Navy doctor alleged to have secretly filmed midshipmen having sex. As I noted, under both the Federal and Military Rules of Evidence, it is impermissible to introduce character evidence which indicates that an individual has a propensity to act in a certain way to prove that the individual acted in conformity with that propensity at the time in question. Nonetheless, the military judge ruled that the pornography would be admissible for this very purpose: to establish that the Navy doctor had a "possible need" to view "young, athletic males" engaged in sex, and thus acted in conformity with this need by secretly videotaping Midshipmen (while the judge claimed that this was evidence of motive, this rationale is nonsensical).
Well, the Navy doctor's trial started this week, with jurors viewing the videotapes which prosecutors claim the Navy doctor made and which the Navy doctor claims that a midshipman who flunked out of the academy recorded in an attempt to extort money from him. Every indication is that the prosecution will introduce over 2,000 homoerotic images found on the Naval doctor's computer, in accordance with the judge's pre-trial ruling. Meanwhile, defense attorneys have correctly, but without avail, claimed that the prosecutors merely want to paint the Naval doctor as a homosexual and thereby bias the military jury against him.
If this evidence is admitted and the Navy doctor is convicted, he should certainly appeal to the United States Court of Appeals for the Armed Forces becuase there is no basis for this evidence to be admitted.
Confrontation Clause Articles
Professor Mnookin's article on experts and Crawford was recently highlighted here. The entire symposium entitled Crawford and Beyond, Revisited in Dialogue, which was held at Brooklyn Law School, is now available online at http://www.brooklaw.edu/students/journals/bjlp/jlp15ii.php. The following articles are included in the symposium issue:
CRAWFORD AND BEYOND: REVISITED IN DIALOGUE
Introduction by Robert M. Pitler
NOT "THE FRAMERS' DESIGN": HOW THE FRAMING-ERA BAN AGAINST HEARSAY EVIDENCE REFUTES THE CRAWFORD-DAVIS "TESTIMONIAL" FORMULATION OF THE SCOPE OF THE ORIGINAL CONFRONTATION CLAUSE
Thomas Y. Davies
THE (FUTILE) SEARCH FOR A COMMON LAW RIGHT OF CONFRONTATION: BEYOND BRASIER'S IRRELEVANCE TO (PERHAPS) RELEVANT AMERICAN CASES
Randolph N. Jonakait
THE CONFRONTATION CLAUSE AND ORIGINALISM:
LESSONS FROM KING V. BRASIER
Anthony J. Franze
CRAWFORD, DAVIS, AND WAY BEYOND
Richard D. Friedman
WHAT HAPPENED-AND WHAT IS HAPPENING-TO THE CONFRONTATION CLAUSE?
Jeffrey L. Fisher
CONFRONTATION RULES AFTER DAVIS V. WASHINGTON
Roger W. Kirst
CONFRONTATION AS CONSTITUTIONAL CRIMINAL PROCEDURE: CRAWFORD'S BIRTH DID NOT REQUIRE THAT ROBERTS HAD TO DIE
Robert P. Mosteller
A RELATIONAL APPROACH TO RIGHT OF CONFRONTATION AND ITS LOSS
DOMESTIC VIOLENCE CASES AFTER DAVIS: THE GLASS HALF EMPTY OR HALF FULL?
Myrna S. Raeder
EXPERT EVIDENCE AND THE CONFRONTATION CLAUSE AFTER CRAWFORD V. WASHINGTON
Jennifer L. Mnookin
FORESHADOWING THE FUTURE OF FORFEITURE/ESTOPPEL BY WRONGDOING: DAVIS V. WASHINGTON AND THE NECESSITY OF THE DEFENDANT'S INTENT TO INTIMIDATE THE WITNESS
James F. Flanagan
October 31, 2007
The Curse of Michael Myers: California Supreme Court Rejects "Halloween II" Defense in Double Homicide Case
In December, 1982, Richard Delmer Boyer murdered a couple in California, stabbing the husband 24 times and the wife 19 times. Two months earlier, "Halloween II," the sequel to John Carpenter's groundbreaking "Halloween" was released in theaters.
Boyer was convicted on two charges of first degree murder in 1984, but he had the convictions reversed on appeal becuase his confession was obtained in violation of his Constitutional rights. This paved the way for his retrial in 1992, where Boyer made some interesting claims. See People v. Boyer, 133 P.3d 581 (Cal. 2006). According to Boyer, he consumed whiskey, speed, marijuana, and cocaine on the day of the murders, and when he was at the victims' house, "[h]e felt he was part of Halloween II....Events kept changing speeds, and items inside the house became distorted." Id. at 591.
A doctor who examined Boyer also testified that Boyer told him in 1990 that "he was 'tripping' at the [victims'] residence, felt like he was in the movie Halloween II, and 'actually hallucinated a man coming at him with a knife.'" Id. at 615. On cross-examination, however, the doctor admitted that when he interviewed Boyer in 1982 and 1983, Boyer "did not mention this hallucination." Id.
Boyer's main defense at trial was that he should have been found guilty only of voluntary mansalughter because he was "unconscious" as a result of voluntary intoxication, a valid defense under California law. The trial judge instructed the jury on this defense, but failed to instruct the jury on the legal definition of "unconsciousness," which extends to those "who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever...." Id. at 623. (Defense counsel did not ask for such an instruction).
Last year, the California Supreme Court affirmed his convictions, and I think that it acted correctly in doing so. Boyer raised a lot of issues on appeal, but I'll only address two. First, the Boyer claimed that because his confession violated his rights, his statements to doctors in the early '80s (where he didn't mention the hallucinations) were inadmissible as the "fruit of the poisonous tree." The court found that this doctrine did not apply because this evidence did not come from subsequent police investigation, but instead was evidence voluntarily compiled by the defendant himself such that its exclusion would have "a negligible deterrent effect on police misconduct." Id. at 618
Second, Boyer claimed that the court erred in failing to instruct the jury on the legal definition of "unconsciousness" The court, however, found that "[n]o rational jury, having heard the trial evidence and an instruction permitting it to find that defendant killed while unconscious, would require further instructions to realize that it could accept defendant's hallucination claim as one of unconsciousness."
EvidenceProf Blog's 1st Annual Halloween Movie Pick: Sam Raimi's "The Gift"
In 1981, director Sam Raimi introduced the world to his unique brand of horror (and sidekick Bruce Campbell), with "The Evil Dead," the first film in a triology which also includes the wackier "Evil Dead 2" and the whacked "Army of Darkness." Raimi's best known these days for another trilogy, the Spider-Man trilogy, consisting of the enjoyable "Spider-Man," the magnificent "Spider-Man 2," and the execrable "Spider-Man 3."
Before being tapped for the Spidey gig, however, Raimi found himself at a career-low, following up the Kevin Costner baseball flop "For Love of the Game" with the southern-fried, Gothic horror flick, "The Gift." "The Gift" is by no means a great movie, but it's not without its charms, including some of the most hilarious courtroom scenes ever committed to film.
Cate Blanchett plays Annie Wilson, the local fortune-teller in the small town of Brixton, Georgia. Wilson's husband died a year ago in a cable plant explosion, and supposedly her character was modeled after the mother of Billy Bob Thornton, who also co-wrote the screenplay. When the wife (Katie Holmes) of the local school principal (Greg Kinnear) goes missing, Annie has a vision that she was killed and dumped into a pond. Police then find the body in the pond belonging to Donnie (the unconvincing Keanu Reeves), a man whose battered wife (Hillary Swank) sought counsel with Annie.
This leads to murder charges being brought against Donnie and the hilarity that ensues when Annie is being challenged on her psychic abilities. Some essential moments include Donnie's attorney (the oily Michael Jeter) asking Annie how many fingers he's holding up behing his back and why, if Annie is a psychic, she couldn't predict and prevent her husband's death.
All in all, "The Gift" is a creative misfire and less creepy than Raimi's masterpiece, "A Simple Plan," but the interesting assortment of actors make the pic worth a look-see for the vast majority of people who missed it in theaters.
Vermont Supreme Court Reverses Prior Consistent Statement Ruling in Halloween Case
In State v. Lemay, 908 A.2d 430 (Vt. 2006), the Vermont Supreme Court was presented with the appeal of Joseph Roger Lemay, who was convicted of lewd and lascivious conduct with a child and sexual assault. The event leading to these convictions occurred on October 21, 2003. The defendant was living with the alleged victim's (A.K.) mother and older brother, and on the night of the 21st, he began wrestling with the alleged victim and her friend, B.S. The two girls later told friends and neighbors that during this wrestling, the defendant grabbed their breasts, and A.K. claimed that the defendant inserted his finger into her vagina.
Before trial, defense counsel revealed that it planned to claim that A.K. fabricated her allegations because the defendant and her mother told her that she could not go to New Hampshire to celebrate Halloween. At a pretrial conference, the prosecution indicated that it planned to call the girls' friends and family to testify about the allegations made by the two girls. They claimed that these allegations were admissible under Vermont Rule of Evidence 801(d)(1)(B), which indicates that a statement is not hearsay if the declarant testifies at trial, is subject to cross-examination, and the statement is consistent with her testimony and is offered to rebut an express or implied charge against her of fabrication or improper influence or motive.
The prosecutor thus claimed that this testimony was admissible at trial because A.K. planned to provide consistent testimony at trial. Defense counsel, though, questioned the timing of A.K.'s statements and whether they were made before the defendant and her mother told her she could not go to New Hampshire for Halloween. The trial court judge, apparently having not read or understood Rule 801(d)(1)(B), responded, ""I'm not sure the timing here is critical under the rule" and found the proposed testimony admissible The judge, however, allowed defense counsel to renew his objection to the testimony at trial by simply stating the word "hearsay," but again found the testimony to be admissible when defense counsel merely objected, "Hearsay" before the testimony was given.
The case eventually reached the Vermont Supreme Court, which reversed the conviction, finding that (1) under Rule 801(d)(1)(B), the testimony was inadmissible because A.K.'s statements came after she was told she couldn't go to New Hampshire for Halloween, (2) the alleged victim's statements did not constitute excited utterances, and (3) the defendant preserved his objection on appeal. The first ruling was the easiest to make.
In a case involving somewhat similar facts, Tome v. United States, 513 U.S. 150 (1995), the United States Supreme Court noted that (identical) Federal Rule of Evidence 801(d)(1)(B) only applies if the alleged consistent statement was made before the source of the bias, interest, influence, or incapacity originated. Thus, if A.K. made her statements before she was told she couldn't go to New Hampshire for Halloween, they would be admissible to rebut defense counsel's claim that she only made up her allegations in response to the Halloween edict. However, allegations that she made after that edict in no way rebut defense counsel's claim because clearly they could have been made in response to that edict.
October 30, 2007
Paradise Found?: Defense Counsel Presents Newly Discovered Evidence in West Memphis 3 Case
In 1994, three Arkansas teenagers, now known as the West Memphis 3, were convicted of murdering three 8 year-old boys, allegedly as part of a satanic sacrifice involing binding the children with shoelaces, sexual abuse, and genital mutilation. They were convicted despite the complete absence of any physical evidence linking them to the murders
Instead, the centerpiece of the prosecution's case was the videotaped confession of Jessie Misskelley, one of the West Memphis 3. Misskelley, however, is mildly retarded, only gave his confession after hours of questioning (and prodding), and was incorrect on several significant details, including the time of the crime, the way the victims were tied, and the manner of death.
If this case sounds familiar, it is probably because it was detailed in the award-winning HBO documentaries "Paradise Lost" and "Paradise Lost 2." Many people watching the documentaries (including Pearl Jam's Eddie Vedder) doubted the guilt of the West Memphis 3 after watching the docs, with most speculating that the murders might have been committed by the stepfather of Christopher Byers, the most mutilated of three victims. This was because the stepfather had a criminal past, gave the filmmakers a bloody knife, and gave messianic speeches on camera.
Now, in the wake of those documentaries and rigorous investigations, defense counsel for Misskelley and the other two defendants, Jason Baldwin and Damien W. Echols, has presented some fascinating evidence to a federal court. The highlights include:
-evidence from forensic experts, including the former medical examiner for New York City, that the mutilation of the victims, including one act of castration, was caused by animals, not humans;
-a forensic report indicating that a hair found in one of the knots binding the victims belonged neither to a member of the West Memphis 3, nor to Byers' stepfather, but instead (likely) to the stepfather of one of the other victims; and
-evidence that jurors (a) heard about Misskelley's confession before trial, (b) lied about hearing the confession during jury selection, and (c) relied upon the confession in convicting Baldwin and Echols even though the confession was inadmissible against them.
It will certainly be interesting to learn more about the evidence that has been presented and whether it will lead to the West Memphis 3 being freed. I will say that based upon the brief descriptions of the evidence that have been given, at least Baldwin and Echols have a good case. Under Arkansas Rule of Evidence 606(b), jurors can testify about "extraneous prejudicial information" being brought to the jury's attention. Then, if the court determines that the defandant was unduly prejudiced by the evidence, his conviction must be reversed.
Certainly, Misskelley's confession was extraneous prejudicial information received by the jury, and in the absence of any physical evidence against the other two defendants, it seems clear that they were convicted as a result of this improperly received information.
Just Cause?: Fourth Circuit Court of Appeals Has Odd Definition of "Good Cause" Under 404(b)
In United States v. Green, 2007 WL 3052847 (4th Cir. 2007), the United States Court of Appeals for the Fourth Circuit affirmed Monte Alexander Green's convictions stemming from his attempted robbery of a pawn shop in 2003. Green had challenged his convictions by alleging, inter alia, that the prosecutor failed to give him proper notice that he intended to introduce evidence pursuant to Federal Rule of Evidence 404(b) indicating that Green previously robbed another pawn shop in 2003.
Federal Rule of Evidence 404(b) states that evidence of another crime is admissible for purposes of proving, inter alia, intent on the part of the defendant, and Green did not dispute on appeal that the evidence of the prior pawn shop robbery was admissible to prove intent. Rule 404(b), however, also requires that when the prosecution in a criminal case seeks to introduce 404(b) evidence against an accused, it must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Green appealed his conviction because the prosecutor gave him notice of his intent to introduce evidence of the prior pawn shop robbery only four days before trial. The Fourth Circuit rejected his argument, although its reasoning is somewhat unclear. In a footnote, it mentioned that the prosecution only learned about the earlier bank robbery approximately one week before trial. The court then noted in the body of its opinion that the failure to provide pretrial notice can be excused when good cause is shown, but it failed to indicate whether the prosecution showed good cause in the Green case.
The Fourth Circuit then stated that defense counsel rejected the District Court's offer to delay the trial for an extra day so that he could prepare a response to the 404(b) evidence. Then, without further explanation, the court concluded, "Under these circumstances, the district court did not abuse its discretion in admitting the evidence."
This led me to evaluate past Fourth Circuit Rule 404(b) notice cases, and I found an interesting and troubling result when researching the Fourth Circuit's definition of "good cause." In its unpublished opinion in United States v. Fitzgerald, 74 F.3d 1234 (4th Cir. 1996), the Fourth Circuit noted that the prosecutor allegedly failed to comply with a district court order requiring five days notice before presenting 404(b) evidence at trial. The prosecutor then presented evidence or prior robberies to prove common plan or scheme by the defendant under Rule 404(b).
The court found that despite this alleged failure to provide adequate notice, "based upon the probative nature of the robbery incidents, the district court had good cause to excuse any pre-trial notice requirement for the use of 404(b) evidence." This decision makes no sense to me. The way I see it, a prosecutor proves "good cause" for failing to provide notice under Rule 404(b) when there is a reasonable explanation for why notice was not given.
An illustrative case is United States v. Allen, 182 Fed.Appx. 903, 914 (11th Cir. 2006), where the court found that the failure to provide notice of Rule 404(b) evidence was excused based upon "good cause" because the prosecutor "just learned" about the 404(b) evidence before trial. Similarly, if the Fourth Circuit in Green based its decision on "good cause," the good cause would have been the similar fact mentioned in the footnote that the prosecution only learned of the 404(b) evidence approximately a week before trial.
In United States v. Fitzgerald, however, the Fourth Circuit seemed to find "good cause" based upon the fact that the 404(b) evidence at issue was expecially probative. In my mind, however, this would provide the opposite of good cause. If a prosecutor has 404(b) evidence that has weak probative value, perhaps the prosecutor would have good cause for not notifying the defendant of the evidence because the prosecutor might not decide to use it until trial starts. But if the prosecutor has reason to know that 404(b) evidence is highly probative and will definitely be used at trial, this would seem to make the prosecutor's failure to provide notice less justifiable.
October 29, 2007
UMKC Seeks Nominations for the Douglas Stripp Distinguished Professor of Law in Advocacy
Professor David Achtenberg of the UMKC School of Law sent me the following message:
I'm chairing a search committee for an endowed professorship (the Douglas Stripp Distinguished Professor of Law in Advocacy) which is broadly enough defined to be filled by an evidence professor. (One of the previous holders was Andre Moennsens.)
FACULTY POSITION SCHOOL OF LAW UNIVERSITY OF MISSOURI-KANSAS CITY The University of Missouri-Kansas City School of Law is seeking nominations and applications for the Douglas Stripp Distinguished Professorship of Law in Advocacy.
We seek diverse candidates with a strong commitment to excellence in teaching, scholarship and professional service. The ideal candidate for the Stripp Professorship will have a distinguished reputation in the field of litigation and demonstrated excellence as an instructor and scholar. Hiring decisions will be consistent with UMKC’s strategic plan to create prestigious faculty positions and recruit nationally recognized teachers and scholars to UMKC’s faculty. Salary, benefits, and research support will be competitive with similar positions in legal education.
The Stripp Professor will play an important role in achieving the school’s mission of educating students to become outstanding lawyers who will serve their communities and producing significant scholarship that benefits the academy, bench and bar. That role is a particularly crucial one because of the law school’s commitment to litigation as one of the school’s four emphasis areas.
UMKC is one of two law schools in the University of Missouri System and is located on a beautiful landscaped campus in the the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of almost two million people. The school’s 35 full-time faculty members offer courses leading to J.D. or LL.M. degrees for approximately 500 students. It benefits from its metropolitan location, a large and academically talented pool of student applicants, a strong university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support. The law school is housed in a modern, technologically sophisticated building that includes a unique, state of the art teaching courtroom. UMKC School of Law is proud to be an urban law school with a strong liberal arts feel.
The position will be open until filled, but review of applications will begin in November. Nominations and applications should be sent to: Professor David Jacks Achtenberg, Chair Douglas Stripp Distinguished Professor Search Committee University of Missouri - Kansas City School of Law Kansas City, MO 64110-2499 Phone: (816) 235-2382; Fax: (816) 235-5276 AchtenbergD@umkc.edu The University of Missouri-Kansas City recognizes that a diverse faculty, staff and student body enriches the educational experiences of the entire campus and greater community. To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and making every attempt to support their academic, professional and personal success. Applicants who are not U.S. citizens must state their current visa and residency status. UMKC is an Affirmative Action/Equal Opportunity employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply.
Brian McDaniel Loses Murder Appeal Despite Hearsay Argument
In 2006, Brian Lamel McDaniel was found guilty of murder in the first degree and sentenced to life imprisonment based upon his alleged role in the murder of his ex-girlfriend, Kandace "Sissy" DeCarlo. Allegedly, McDaniel arranged for Donald Overton, a member of the Bloods, to kill DeCarlo because she was now dating Thomas "Mad Dog" Smith, a Red Mob enforcer, and selling crack cocaine for Smith instead of for McDaniel.
At trial, in addition to presenting evidence that McDaniel arranged for Overton to kill DeCarlo, the prosecutor introduced evidence to prove that Overton in fact killed DeCarlo. This evidence consisted of the testimony of former Red Mob member Israel Ward, who testified that Overton overheard a conversation about DeCarlo's murder and responded, "I shot her until she was dead."
McDaniel appealed his sentence, with his attorney claiming that the trial court improperly allowed this testimony because it was hearsay and because because Overton did not testify at trial. Last Thursday, however, he lost his appeal.
Looking the Oklahoma Evidence Code and recent Confrontation Clause jurisprudence, the court's decision makes sense, as long as Overton was unavailable to testify at trial. Section 2804(B)(3) of Oklahoma's Evidence Code is similar to Federal Rule of Evidence 804(b)(3) in that, when the declarant is unavailable to testify, it allows for the admission of "[a] statement which was at the time of its making contrary to the declarant's pecuniary or proprietary interest, or which tended to subject him to civil or criminal liability...and which a reasonable man in his position would not have made unless he believed it to be true." Thus, assuming that Overton was unavailable, his statement was properly admitted because it tended to subject him to criminal liability for murder and because a reasonable man would not make statements subjecting himself to such criminal liability.
Next, we must look at the Confrontation Clause. In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.. Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.
Here, it appears unlikely that Overton thought that his statement in response to the conversation about the murder would have been used in a criminal prosecution, so his statement was not "testimonial." Thus, McDaniel's rights under the Confrontation Clause were not violated by the admission of Overton's statement.
I'll finally note that while the denial of McDaniel's appeal was proper assuming that Overton was unavailable, the denial was improper assuming that Overton was available to testify. As they are under the Federal Rules of Evidence, the admissions of co-conspirators are considered non-hearsay under Section 2801(4)(a)(5) of the Oklahoma Evidence Code. A co-conspirator's admission, however, is defined as a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Overton's statement after the alleged murder of DeCarlo would almost certainly not have been made during the course and in furtherance of any conspiracy to murder her, so his statement would have been inadmissible if he were available to testify at trial.
Calvin Harris, Take 2: Judge Finds Statements Covered By Spousal Communications Privilege
Last week, I wrote about Calvin Harris' attempt to have his murder conviction overturned based upon witness Kevin Tubbs coming forward and claiming that he saw the alleged victim with another man well after the police allege that Harris killed her and disposed of her body. I noted that even though Tubbs' description of the man he saw with the victim matched the description of another suspect, Stacy W. Stewart, the police's failure to disclose the fact that they conducted a polygraph test on Stewart was unlikely to form the basis for a new trial because Pennsylvania courts have found that the failure to disclose inadmissible evidence to a defendant can never form the basis for a Brady violation.
I also noted that Tubbs' testimony was troublesome because his wife told police that Tubbs expected to be paid in exchange for his testimony. Specifically, she told police investigators that her husband told her that he "would never have to work another day in his life" because he "will have a brown paper sack on the front seat of his truck that will be filled with money."
Harris caught a break when Tubbs' wife later claimed that the police "twisted" her statement to them. He then caught another break when the judge hearing his appeal found that the wife's statement was inadmissible because it was covered by Pennsylvania's spousal communications privilege.
Pennsylvania's spousal communications privilege states in relevant part that in a criminal proceeding, neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other...." Because Tubbs' statements were made to his wife when nobody else was around, they were "confidential" and thus inadmissible.
Of course, none of this changes the Brady analysis, but if the judge finds Tubbs' testimony and other evidence presented by Harris to be sufficiently compelling, it is possible, but unlikely, that Harris will be given a new trial.
October 28, 2007
Twelve Worried Men?: Supreme Court of Wyoming Denies Defendant's Appeal Despite Jury Note
Emilio Teniente was convicted by a Wyoming court of first degree murder and conspiring to commit murder in connection with the death of Joseph Lopez. Teniente eventually appealed to the Supreme Court of Wyoming on several grounds, including the ground that the trial court failed to inquire properly into a note it received from the jury.
The note said,
Dear Judge Grant:
During our deliberation some concerns have arose about the safety and any retaliation of either family, towards any of us or our families. Some of us have been approached by some of the family members. Please advise us of our course of action. Thank you.
The note referred to a specific instance when a female juror was approached by Teniente's girlfriend in a public restroom. Apparently, the girlfriend introduced herself and said that she just had Teniente's baby and that "things were really hard." The female juror did not respond and immediately walked away. After learning about the incident, the judge talked with the juror and allowed her to continue serving after she said that she felt comfortable continuing, although she said that the contact did make her "a bit nervous."
Wyoming Rule of Evidence 606(b) is similar to its federal counterpart in that it generally precludes jurors from testifying as to jury deliberations, but it does allow jurors to testify about, inter alia, whether any outside influence was improperly brought to bear upon any juror.
Jurors testifying pursuant to Rule 606(b), however, cannot discuss the subjective effect of the outside influence on the juror's decision-making. Instead, in determining whether to remove a juror or reverse a conviction, the court, by looking at the entire record, considers objectively whether the defendant was or would be unduly prejudiced as a result of the outside influence. Here, the Supreme Court of Wyoming found that the trial court acted properly in allowing the female juror to continue to serve and thus affirmed Teniente's conviction.
Unless the Supreme Court's decision leaves out some essential facts, I am utterly dissatisfied with the trial court's actions. According to the jurors' note, "[s]ome of us have been approached by some of the family members," leading to concerns "about the safety and any retaliation of either family, towards any of us or our families."
From this note, it seems to me that (1) more than one juror was approached (2) by more than one person, and that (3) at least one of the approachers was a family member of the victim, Joseph Lopez. Furthermore, when comparing the note's language about "safety" and "retaliation" with the words spoken by Teniente's girfriend -- which only made the female juror "a bit nervous" -- it sems to me that there were more threatening comments made to other jurors which were not mentioned specifically in the note.
Now, maybe when the female juror spoke with the judge, she made clear that she was the only one approached and that she was only approached by the girlfriend the one time described in the note, but the Supreme Court of Wyoming mentions no such explanation by the female juror. In the absence of such an explanation, it appears to me that the judge should have conducted a much more rigorous search into the allegations raised by the note.