December 29, 2007
Meet The New Boss, Same As The Old Boss: Ohio Judge Dismisses Political Retaliation Claim Based On Erroneous Hearsay Ruling
A judge in Ohio has made a seemingly bizarre evidentiary ruling, resulting in the dismissal of Athens County Sheriff's Deputy Jack Taylor's discrimination lawsuit against Sheriff Verne Castle. When Taylor and another deputy, Jim Childs, were passed up for promotion to sergeant in 2005, they filed grievances and complaints. Childs claimed that he was passed over based upon racial discrimination and was successful; he reached a monetary settlement and was eventually promoted to sergeant.
Taylor has been less successful. One of his claims was that Castle harassed him, but the judge hearing his case found that Ohio law does not recognize the tort of civil harassment and thus dismissed the claim. Taylor also sought to recover based upon Castle's alleged defamation of his character, but the judge found that this claim lacked merit and thus dismissed it.
Taylor's third claim was that Castle's failure to promote him was an act of political retaliation because Taylor supported one of Castle's opponents, David Redecker, in the 2004 sheriff's race. Taylor claimed that he had evidence that Castle got angry about a Redecker sign in Taylor's yard and threatened to "get" Taylor. The judge, however, found that this evidence was inadmissible hearsay and thus dismissed this claim despite other evidence that was suspicious but not sufficient to prove retaliation, such as the qualifications of those promoted to sergeant over Taylor.
I don't understand the judge's decision unless there were other factors at play. Ohio Rule of Evidence 801(D)(2)(a) indicates that a statement is an admission and not hearsay if it is offered against a party and is the party's own statement in either an individual or representative capacity. Here, Taylor was offering Castle's own statement against him in a lawsuit in which Castle was a party: the defendant.
December 28, 2007
Deacon Blues: New Jersey Court Finds Confession Inadmissible Based Upon Cleric-Penitent Privilege
27 year-old Emerzon Gomez has been accused of sexually assaulting a 14 year-old girl, but pursuant to an evidentiary ruling by a New Jersey Superior Court judge, the jury hearing his case will never hear his alleged confession. Pastor Milton Mendez of Iglesias Cristiana Ministerios in North Bergen learned that the 14 year-old parishioner told her school principal that she had oral sex with Gomez, leading Mendez to arrange a private meeting with Gomez. Mendez was not only Gomez' pastor; he was also his employer as Gomez babysat for Mendez' two daughters.
According to Mendez, Gomez confessed that he had sexual relations with the 14 year-old. The prosecution claimed that Mendez should be able to testify concerning this confession at trial because Mendez was acting more as an employer and concerned parent than as a spiritual guide in obtaining Gomez' confession.
Defense counsel countered that Gomez' confession was covered by New Jersey Rule of Evidence 511, its cleric-penitent privilege. Pursuant to this Rule, "[a]ny communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric's professional or spiritual counseling role." In siding with defense counsel, Superior Court Judge Ernest M. Caposela noted that Mendez had stated that his conversation with Gomez included reflection on their relationship with God.
I agree with the judge's decision because it seems clear to me that Gomez was seeking spiritual counseling from Mendez, but I will note that there is at least one prior New Jersey case that came to the opposite conclusion based on somewhat similar facts. In State v. Cary, 751 A.2d 620 (N.J.Super.A.D. 2000), a New Jersey court found that the cleric-penitent privilege did not apply when the defendant made a confession to a deacon who was also a police officer. Like in Gomez' case, the deacon in Cary discussed religious matters with the defendant and even prayed with him. See id. at 626. Unlike in Gomez' case. however, the deacon/police officer in Cary read the defendant his rights and informed him of his right to remain silent, leading the court to find that the defendant had no expectation that his statements would be privileged.
December 27, 2007
The Experts?: Ninth Circuit Find Statutory Language Based Off Of Rule 702 Is Void For Vagueness
The Kurdistan Workers Party , a.k.a., Partiya Karkeran Kurdistan ("PKK") and the Liberian Tigers of Tamil Eelam ("LTTE") engage in a wide variety of unlawful and lawful activities. Based upon their unlawful activities, the Secretary of State designated them as "foreign terrorist organizations." Six organizations, a retired federal administrative law judge, and a surgeon sought to provide support only to the noviolent and lawful activties of PKK and LTTE, such as helping Kurds living in Turkey and Tamils living in Tamil Eelam in the Northern Eastern provinces of Sri Lanka to achieve self-determination.
They stayed their hands, however, because pursuant to 18 U.S.C. Section 2339B(a)(1) of the Antiterrorism and Effective Death Penalty Act, as amended by the Intelligence Reform and Terrorism Prevention Act, "[w]hoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life."
Pursuant to 18 U.S.C. Section 2339A(b)(1), "the term 'material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials." According to 18 U.S.C. Section 2339A(b)(3), "the term 'expert advice or assistance' means advice or assistance derived from scientific, technical or other specialized knowledge."
Instead of providing support, the organizations, judge, and surgeon, inter alia, challenged these sections, claiming that they were void for vagueness because they could be construed to criminalize activities protected by the First Amendment. A district court found that these sections were void for vagueness, and the Ninth Circuit affirmed this decision in Humanitarian Law Project v. Mukasey, 2007 WL 4293310 (9th Cir. 2007). The government had argued that the ban on "expert advice or assistance" was not vague because Federal Rule of Evidence 702 similarly defines expert testimony as testimony based on "scientific, technical, or other specialized knowledge." The government thus contended that this definition gave a person of ordinary intelligence reasonable notice of conduct prohibited under the statute. The Ninth Circuit disagreed, finding that inclusion of the phrase "scientific, technical, or other specialized knowledge" did not clarify the term "expert advice or assistance" for the average person with no background in law.
The question that remains, however, is whether the Federal Rules of Evidence, such as Rule 702, are confusing not only for the average person, but also for lawyers and judges. According to Professor Joseph Kimble, they are. Professor Kimble recently contributed to the comprehensive rewrite of the Federal Rules of Civil Procedure to make their phrasing more clear and precise. According to Kimble, his next goal is to rewrite the Federal Rules of Evidence. As a professor of both civil procedure and evidence, I'm not sure that I agree with Professor Kimble's new endeavor.
The Federal Rules of Civil Procedure, while certainly open to many interpretations are, to a large extent, intended to give brightline rules that inform parties of how to act in civil proceedings in United States federal courts. On the other hand, it seems to me that the Federal Rules of Evidence are in some sense meant to be intentionally vague so that judges can have the discretion to act one way or another. For instance, one commentator has referred to the aforementioned Rule 702 as "purposefully broad and vague" so that judges have the discretion to conclude that a wide variety of specialized testimony does or does not constitute expert testimony. See L. Timothy Perrin, Expert Witness Testimony: Back to the Future, 29 U. Rich. L. Rev. 1389, 1397 (1995). That said, many of the other rules are likely less clear than they should be, and it will certainly be interesting to see whether we can make the evidentiary rules a little clearer to both lawyers and non-lawyers alike.
December 26, 2007
Corruption Corruption Corruption: Key Witness' Death Weakens Massachusetts Case Against Lawrence Trapasso
Massachusetts' corruption case against Lawrence Trapasso, a former Worcester city elections commissioner and a former state auditor's office staffer, was dealt a body blow after key prosecution witness Michael Bordeau died when his snowmobile collided with a tractor-trailer on Interstate 84 last Friday. Allegedly, Bordeau had told authorities that he paid Trapasso $4,000 to make a drunk driving case against him "go away" and was later acquitted. As former Massachusetts Bar Association President Edward Ryan has correctly noted, unless a defense lawyer got a chance to cross-examine Bordeau before his death, his statements will likely be inadmissible.
Ryan's statement is correct for a few reasons. First, Bordeau's statements to the authorities were likely "testimonial" because they were almost certainly made with the expectation and under circumstances suggesting that the statements would eventually be used in a criminal prosecution. Thus, Trapasso's rights under the Confrontation Clause would be violated pursuant to Crawford v. Washington, 541 U.S. 36 (2004), if Bordeau's statements were admitted at trial against him when he was not able to cross-examine Bordeau.
Second, while it is unclear from the articles on the Trapasso case, it seems as if Bordeau might have given grand jury testimony against Trapasso. If this were the case, Bordeau's testimony could potentially have been admissible under the former testimony exception to the rule against hearsay contained in Federal Rule of Evidence 804(b)(1) and Massachusetts case law, which states that "[t]estimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." As is indicated in that rule, however, the party against whom the testimony is offered (Trapasso) must have had the opportunity and a similar motive to develop Bordeau's testimony by cross-examination, confirming Ryan's statement.
As I looked through Massachusetts' case law on former testimony, I found an issue that has always interested me. In Commonwealth v. Rodriguez, 792 N.E.2d 131, 139 (Mass.App.Ct. 2003), a Massachusetts court addressed, but did not resolve the issue of whether a defendant can use the "former testimony" of a prosecution witness given at grand jury proceedings when that witness later becomes unavailable for trial. Because grand jury proceedings typically don't have traditional cross-examination, it is well established that the prosecution can't use the "former testimony" exception to present the grand jury testimony of now unavailable government witnesses at trial.
However, what if the prosecution calls a witness at grand jury proceedings, and that witness gives testimony which is actually more damaging than helpful to the proseuction's case? In that case, would the prosecution have had an opportunity and similar motive to develop the witness' testimony during the grand jury proceedings, making the "former testimony" exception applicable? The Supreme Court addressed, but did not resolve this issue in United States v. Salerno, 505 U.S. 317 (1992). That said, most courts which have addressed the issue have not found the exception applicable. See, e.g., United States v. Omar, 104 F.3d 519 (1st. Cir. 1997). These decisions make sense to me because of the lower burden of proof at grand jury proceedings vis a vis a trial. The prosecution may call a witness at grand jury proceedings and find it unnecessary to impeach or challenge testimony the witness gives that damages their case because they know that they have a low burden of proof to get the case to trial. Conversely, at trial, knowing that they have to prove guilt beyond a reasonable doubt, the prosecution would have a different, and greater, motive to challenge this testimony.
December 25, 2007
The Anti-Dentite?: 6th Circuit Finds Rebutting Claim of Failure to Mitigate Not a Permitted Use Under Rule 408 in Christmas Case
In 1999, Dr. Samuel David Stockman sold his dental practice of other 40 years to Dr. Louis Leonor and the Oakcrest Dental Center. Pursuant to a side agreement to the sale, Dr. Leonor hired Dr. Stockman to work as a dentist at Oakcrest with no retirement or termination date set for Dr. Stockman. In 2001, however, whether because of decreased production, as Dr. Leonor claimed, or age discrimination, as Dr. Stockman claimed, Dr. Leonor fired Dr. Stockman and replaced him with a 33 year-old dentist.
Dr. Stockman thereafter sued Dr. Leonor and Oakcrest, contending that his firing violated the Age Discrimination and Employment Act and the Michigan-Elliott Larsen Civil Rights Act. As part of his complaint, Dr. Stockman alleged that based upon his age, he was afforded fewer operations, not given a dedicated and competent dental assistant, and given few new patients who required expensive treatments. Dr. Stockman also alleged that on three occasions, culminating in a Christmas party in 1999, Dr. Leonor asked him whether he realized that he was the oldest dentist at Oakcrest.
After Dr. Stockman brought the lawsuit, an attorney representing Dr. Leonor and Oakcrest sent a letter to Dr. Stockman offering to reinstate him to his prior position in exchange for settlement of the entire action. Two days later, Dr. Stockman's lawyer responded with a letter "accepting" the reinstatement, but noting that the acceptance did not resolve all of the claims in the case. Believing that this letter constituted a rejection and counteroffer, the defendants withdrew their offer of reinstatement, and the case proceeded to trial.
At trial in the District Court for the Eastern District of Michigan, the defendants moved to have the letters excluded pursuant to Federal Rule of Evidence 408. Federal Rule of Evidence 408 states that evidence of compromises, offers to compromise, and related statements are inadmissible to prove liability for, invalidity of, or amount of a claim that was disputed as to liability or amount, or to impeach through a prior inconsistent statement or contradiction. Rule 408, however, goes on to state that evidence is admissible if offered for purposes not prohibited by 408(a). The Rule then lists as three illustrative examples: proving bias, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution.
These examples, however, are merely illustrative and not exhaustive. Accordingly, the court found that the letters were admissible by Dr. Stockman because they were not offered for a precluded purpose but were instead offered to help Dr. Stockman rebut the defendants' claim that he failed to mitigate his damages. After trial, the court awarded Dr. Stockman $479,491.63.
On appeal, the Sixth Circuit Court of Appeals reversed. See Stockman v. Oakcrest Dental Center, P.C., 480 F.3d 791 (6th Cir. 2007). The Sixth Circuit noted that some courts, including the 1st, 5th, and 7th Circuits, have found that proving or rebutting a claim that a plaintiff failed to mitigate his damages is a permissible purpose not precluded by Rule 408. See, e.g., Urico v. Parnell Oil Co., 708 F.2d 852, 854-55 (1st Cir. 1983). The Sixth Circuit, however, found that these courts ruled incorrectly, and I found no analysis in these cases explaining why Rule 408 did not apply.
Instead, the Sixth Citrcuit agreed with the 2nd Circuit in Pierce v. F.R. Tripler & Co., 955 F.2d 820, 826-27 (2nd Cir. 1992), and found that using evidence of settlement negotiations to prove or rebut a claim that a plaintiff failed to mitigate his damages was using the evidence to prove the amount of a claim that was disputed as to liability or amount. This reasoning makes sense to me.
Dr. Stockman was claiming that he was wrongfully fired and thus sought to recover a certain amount of money from Oakcrest and Dr. Leonor. Oakcrest and Dr. Leonor then claimed that Dr. Stockman should recover less money than he sought because he failed to mitigate his damages by finding alternate employment. Dr. Stockman then sought to prove that he was entitled to the full extent of his damages because he sought to mitigate through his "acceptance" letter to the defendants. Thus, I don't see any other way to characterize Dr. Stockman's attempted use of the letters other than to prove the amount of his claim against the defendants. I thus think that the 6th Circuit's decision was proper and that the majority of courts have ruled improperly on the issue.
December 24, 2007
Heard About Pittsburgh, P.A.?: Pennsylvania Court Finds Video Animations Admissible As Demonstrative Evidence In Christmas Eve Case
On Christmas Eve 2002, unarmed, 12 year-old Michael Ellerbe was shot by police officers in Uniontown, Pennsylvania as he ran down a city alley from a stolen Ford Bronco. Ellerbe's father, Michael Hickenbottom, thereafter sued the two troopers who shot his son, Juan Curry and Samuel Nassan. During the inquest into the shooting in 2003, Curry had testified that his gun accidentally discharged as he climbed and fell from a 4-foot fence while chasing Ellerbe. Meanwhile, Nassan contended that he heard the shot from Curry's gun and saw him fall; thinking that his partner was shot, Nassan fired a round at Ellerbe.
At trial, Hickenbottom plans to call a now 15 year-old eyewitness who supposedly will contradict the testimony of the officers. That eyewitness' testimony, however, will now be called into question as district court judge Joy Flowers Conti preliminarily ruled last Thursday that the defendants will be able to introduce into evidence video animations prepared by Precise Inc., which recreate the scene of the shooting and allegedly show that the eyewitness could not have seen the shooting from his Cleveland Avenue window.
One of Hickenbottom's attorneys had claimed that these animations were prejudicial, inaccurate, and lacked a foundation for presentation to the jury. Defense counsel countered that these animations were proper demonstrative evidence because jurors could be instructed that these animations were not to be taken as exactly what happened on Christmas Eve but instead were to be received as an illustration of the troopers' testimony. Conti agreed with defense counsel, finding that animations documenting one side's theory of a case are a permissible form of evidence as long as jurors are informed. Conti did note that defense counsel would still have to authenticate the animations at trial and prove that they were relevant and not unfairly prejudicial.
Legally, Judge Conti's ruling is correct as courts have found that animations are admissible as demonstrative evidence as long they are "substantially similar" representations of the areas in question. See, e.g., St. Paul Fire and Marine Ins. Co. v. Nolen Group, Inc., 2005 WL 1168389 at *7-*8 (E.D. Pa. 2005).
I am very concerned, however, about the amount of weight jurors put into these animations. In law school, I particpated in mock technology trials, where we addressed the admissibility of this type of evidence. One year, an animated recreation of an airplane crash was created in a mock lawsuit against an airline; the next year, a virtual reality presentation was prepared for a mock trial against the creators of a cholesterol treatment device.
I understand the argument that this evidence is admissible as a visual representation of a witness' testimony and that jurors can be cautioned not to take it as gospel. Thus, for instance, the animation of the plane crash in theory would only be a visual representation of an accident reconstructionist's testimony and not substantive evidence of how the plane crashed. That said, do we really believe that jurors or even judges will not put undue weight into evidence which, at least to these eyes, seemed very convincing? I would love to see a study like the Australian study on gruesome evidence to see whether cases with otherwise similar facts have different results depending on whether animations are presented.
December 23, 2007
The Long Leg of the Law: Minnesota Court Finds Excessive Force Evidence inadmissible Against Police Officer Under Rule 404(b)
In Minnesota, a jury of six found police officer Donald Rasicot not guilty of misconduct and assault during the 2006 arrest of a drunken man in large part because the court refused to admit evidence that Rasicot previously lost a job with the Minnesota Police Department over complaints that he used excessive force. The judge also excluded evidence that Rasicot had previously been charged with second degree assault in connection with his police work, although that charge was later dropped. Both sides agreed that Jason Knutson was arrested by Rasicot for being drunk and disorderly at about 1 A.M. last August and that Knutson resisted being placed into a cell. Thereafter, working with two other officers, Rasicot used his foot to get Knutson into a cell, causing cuts to his face and scrapes to his head. The case boiled down to whether Rasicot properly "pushed" Knutson into the cell with his foot or improperly "kicked" him into the cell with excessive force.
As noted, Knutson attempted to prove his case through alleged prior bad acts by Rasicot, but the judge presumably found that these acts were inadmissible under Minnesota Rule of Evidence 404(a), which states that such evidence is inadmissible to prove that an individual has a propensity to act in a particular manner and that he acted in conformity with that propensity at the time in question. Thus, Knutson would not be able to introduce Rasicot's alleged use of excessive force in the past to prove that he had a propensity to use excessive force and that he acted in conformity with that propensity when he used excessive force by kicking Knuston into to cell.
On the other hand, Minnesota Rule of Evidence 404(b) states that evidence of other crimes, wrongs, or acts are admissible to prove, inter alia, a common plan or scheme or modus operandi by an individual. My research reveals that courts are split as to whether evidence of past police brutality is admissible as evidence of a common plan or scheme. In Carson v. Polley, 689 F.2d 562, 571-72 (5th Cir. 1982), the Fifth Circuit found that a court erred in refusing to admit a performance evaluation of a deputy accused of using excessive force. The Fifth Circuit noted that this evaluation stated that the deputy needed to work on controlling his temper and found that it was thus admissible under Rule 404(b) to prove intent or common plan or scheme. Conversely, in Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005), the Tenth Circuit found that previous claims filed against an officer for using excessive force were inadmissible under Rule 404(b) in the officer's trial for using excessive force under a modus operandi theory.
It seems to me that the Tenth Circuit's approach is correct. "Common plan or scheme" evidence is typically admissible in two circumstances. The first circumstance is when it can be used to show modus operandi or a signature crime. An example of this circumstance can be found in "Home Alone," where Joe Pesci and Daniel Stern are the "wet bandits," who clog kitchen sinks and leave the water running after every burglary. Unfortunately, however, there is nothing unique about police brutality in general. Furthermore, there didn't seem to be any allegations that Rasicot committed his alleged acts of brutality in a "special" manner.
The second circumstance is when several criminal acts for successive steps in a larger criminal enterprise. Thus, let's say that a defendant steals a gun, steal blueprints to a bank, and then robs the bank with the stolen gun. Evidence that the defendant stole the gun and the blueprints would be admissible in the defendant's prosecution for bank robbery because those acts were part of the larger criminal enterprise. No such "larger enterprise," however, exists in excessive force cases.