Wednesday, June 11, 2008
A federal judge in New York has refused to declare a mistrial despite a defense attorney violating Federal Rule of Evidence 609(b) by claiming in his opening statement that the plaintiff had a "felonious conviction." The case in which this ruling was rendered involves the lawsuit brought by businessman Ross Catalano against the town of Henrietta, former Supervisor James Breese, and former Fire Marshal Chris Roth for $30 million. Catalano used to run FunQuest (or Fun Quest), a recreation center which counted many African American teenagers among its patrons. After a March 2002 riot-like incident at FunQuest, the Town of Henrietta amended Catalano's special use permit for the center, a move that prohibited dancing at the facility. According to Catalano, this change in his permit forced him to close the facility and lose millions of dollars.
According to Catalano, the move was also racially motivated. Catalano claims that before the Henrietta town board told FunQuest it no longer could hold teen dances, town officials said that the reason was that too many "city kids," as opposed to Henrietta teens, came to the club's open dance parties. Rochester New York is 48.5% Caucasian and 38.5% African American while the neighboring suburb of Henrietta is 84% Caucasian and 7% African American. Meanwhile, Breese has denied these allegations.
The jury, however, almost never got to hear this evidence after defense counsel's inappropriate behavior, but now the case will proceed after potentially inappropriate behavior by the judge. As noted, defense counsel mentioned in his opening statement that Catalano had a "felonious conviction." And while defense counsel apparently did not mention the nature of that conviction, the articles on the case make it clear that it was more than 10 years old. Presumably, defense counsel planned to use this conviction to impeach Catalano's forthcoming testimony at trial, triggering Federal Rule of Evidence 609(b), which states that:
"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."
Catalano's attorney moved for a mistrial, claiming that defense counsel failed to give notice, and U.S. Magistrate Judge Jonathan Feldman found that defense counsel's mention of the conviction was error because he failed to give prior notice of his intent to use the conviction at trial. Nonetheless, Judge Feldman found that a mistrial was not the appropriate remedy on the ground that "it would be difficult to seat another jury because of media coverage of the trial." Instead, he told the jury that defense counsel's statement about the felony was inappropriate and not to be considered as evidence.
While it's difficult to second guess Judge Feldman without knowing all of the facts of the case, it seems to me that he made the wrong decision. Catalano's credibility and whether he made up the racial basis for the permit amendment seems to be a (the?) central issue in the case. Furthermore, the Federal Rules evince a clear intent to protect individuals from old convictions by requiring not only advanced notice by the party seeking to introduce them but also by requiring specific factual findings that their probative value substantially outweighs their prejudicial effect. Therefore, it's more likely than not that Catalano's conviction would have been deemed inadmissible even if notice were given. See Federal Rule of Evidence 609, advisory committee's note ("Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.").
It would be one thing if Judge Feldman thought that the trial could proceed without worry about the trial being tainted by the evidence, but it appears that he denied a mistrial because of the difficulty of seating a new jury based upon media coverage. But if that's a burden that Catalano was willing to bear, as is clear from his motion for a mistrial, I don't see how Judge Feldman could have denied the motion.