June 7, 2008
Creating The Vermonster? Murder Case Reveals That Vermont Allows For Broader Post-Trial Jury Impeachment Than Do The Federal Rules Of Evidence
A Vermont court's refusal to allow a convicted defendant's attorney reveals an interesting wrinkle in Vermont Rule of Evidence 606(b). Brian L. Rooney was convicted of murdering University of Vermont student Michelle Gardner-Quinn. Specifically, the prosecution was able to prove that Rooney raped and killed the college senior after a chance meeting with her in which she asked to use his cell phone. After Rooney was convicted, he moved to have his attorney question juror Randy Chadurjian, with the goal of having Chadurjian ultimately testify that Judge Michael Kupersmith's instructions to jurors in the case were deficient. Judge Kupersmith denied the motion, finding that while Rooney could appeal based upon the allegedly deficient jury instruction, he could not prove that the jury instructions were deficient through the testimony of jurors.
This ruling ostensibly was premised upon Vermont Rule of Evidence 606(b), which states that "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received; but a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors."
Vermont Rule of Evidence 606(b) is thus similar to Federal Rule of Evidence 606(b) in that it prevents jurors from impeaching their verdicts post-trial through testimony about anything "internal" in the jury deliberation process (such as ignoring/misconstruing jury instructions or failing to consider a particular issue/claim/defense) but allows testimony about extraneous prejudicial information (such as inadmissible evidence finding its way into the jury room) and/or improper outside influences (such as threats from the friends of a party). The "wrinkle" added by Vermont Rule of Evidence 606(b) is the last clause, which also allows for post-trial juror impeachment when "any juror discussed matters pertaining to the trial with persons other than his fellow jurors." There is no similar exception in Federal Rule of Evidence 606(b). What is the purpose of this clause?
Well, according to the Reporter's Notes to the Rule, "[t]he provision of the rule allowing juror testimony as to statements to outsiders reflects the requirement of the juror's oath, 12 V.S.A. Section 5803, forbidding such statements. Violation of the oath may invalidate the verdict." 12 V.S.A. Section 5803 lists the oath that jurors must take: "You solemnly swear that you will well and truly try each and every issue which may be given you in charge during the present term of this court, agreeably to the evidence given you in court, and the laws of this state, and true verdicts give; your own counsel and that of your fellows you will duly observe and keep; you will say nothing to any person about the business and matters you may at any time have in charge, but to your fellow jurors, nor will you suffer any one to speak to you about the same but in court; and when you have agreed on a verdict, you will keep it secret until you deliver it in court. So help you God."
I see a clear problem with Vermont's reasoning. Let's take the classic case where Rule 606(b) is generally thought to apply: jurors ignoring jury instructions/issues. So, for instance, let's say a defendant is on trial for first degree murder, which requires a jury finding of premeditation. But let's say that the jurors ignore or misunderstand the jury instructions and fail to consider the issue of premeditation before finding the defendant guilty. Typically, this would be considered "internal" to the jury deliberation process, rendering jurors unable to testify about the omission pursuant to Rule 606(b). But, according to Vermont's jury oath, "You solemnly swear that you will well and truly try each and every issue which may be given you...." Wouldn't the juror behavior in this case violate the jury oath, meaning that Vermont Rule of Evidence 606(b) should allow for post-trial juror impeachment?
It seems to me that it should, and yet the Rule clearly does not. And yet the Rule does allow for post-trial juror impeachment in a case where a juror went home and discussed the details of the case with his wife, even if the wife did not influence his decision. I admire Vermont's attempt to allow for juror impeachment in a broader range of cases, but it seems to me that the logic behind its unique exception justifies post-trial jury impeachment in a broader range of cases than the Rule actually allows.
June 6, 2008
Prejudice And Prejudice: New Jersey Court Finds White Supremacist Evidence Admissible In Murder Case
Walter Dille Jr. is on trial in new Jersey for the murder of Cindy Cade, and African-American woman and mother of two. Now, pursuant to rulings by Superior Court Judge Albert Garofolo, jurors will be able to hear evidence about Dille's white supremacist views and his alleged confession to the crime.
The prosecution alleges that Dille walked up to Cade the morning of Dec. 16, 2005, as she was getting out of her car outside the Regal Cinema in the Hamilton Commons shopping center in Hamilton Township. They contend that Dille told Cade to get back in the car and shot her in the head, with Cade dying from a single bullet wound.
While Dille was being booked for the crime, and being asked "routine" questions by Atlantic County Corrections Officer Sean McNally, he allegedly replied, "I just shot a black woman that I don’t even know." Ostensibly, Dille was not given his Miranda warnings before making this confession, but Judge Garofolo nonetheless found the confession admissible because he found that Dille's statement was voluntary did not come during custodial interrogation. See State v. O'Neal, 921 A.2d 1079, 1094-95 (N.J. 2007).
Judge Garofolo also found that several jail letters and drawings Dille composed while in jail which detail his white supremacist views will be admissible at his trial, and the same goes for testimony from his ex-girlfriend, who will allegedly testify to derogatory racial remarks made by Dille. None of this evidence is objectionable on hearsay grounds because the letters, drawings, and statements by Dille are all admissions of a party-opponent (the criminal defendant) under New Jersey Rule of Evidence 803(b)(1). Furthermore, while Dille might have claimed that the probative value of such evidence was substantially outweighed by the risk of unfair prejudice under New Jersey Rule of Evidence 403, most courts have held that evidence of racial animus passes the 403 balancing test when a defendant is charged with an allegedly racially motivated crime. See, e.g., United States v. Allen, 341 F.3d 870, 886-87 (9th Cir. 2003) (finding admissible "skinhead and white supremacist evidence includ[ing] color photographs of defendants' tattoos (e.g., swastikas and other symbols of white supremacy), Nazi-related literature, group photographs including some of the defendants (e.g., in “Heil Hitler” poses and standing before a large swastika that they later set on fire), and skinhead paraphernalia (e.g., combat boots, and arm-bands with swastikas)).
June 5, 2008
Dexter In The Dark, Take 2: Is Dr. Hayne Qualified To Render Expert Testimony?
On Saturday, I wrote a post about a Mississippi case, where the Court of Appeals of Mississippi found that forensic pathologist Dr. Hayne properly rendered expert testimony on blood spatter evidence. The issue I raised in that post was whether we would usually expect a forensic pathologist to be able to interpret blood spatter evidence or whether the situation would be more analogous to a dermatologist testifying about HIV? Well, apparently, there is a much more troubling issue raised by that case. Earlier, this week, I was sent an e-mail by Radley Balko, who lives in my old stomping grounds of Alexandria, Virginia, and is a senior editor at Reason magazine and bloger at the Agitator. According to the e-mail:
-"I can't speak for what other courts have said, but I can tell you that the doctor in the case you mention -- Mississippi's Dr. Steven Hayne -- frequently testifies to matters he has no business testifying to. Moreover, the guy really shouldn't even be testifying as a forensic pathologist. I've been trying to draw attention to Hayne for months now. I wrote about him initially in a long piece for Reason magazine (my employer), along with shorter pieces in the Wall Street Journal and Slate. Thus far, it seems that Mississippi's courts have no interest in reining him in."
Balko then directed me to the following writings he's done on Hayne:
-a series of blog posts about Hayne under the forensics category of his blog; and
-The Bite-Marks Men (which details the plights of two recently exonerated men who were convicted in part based upon Dr. Hayne's testimony and indicates that Hayne isn't board-certified in forensic pathology).
In a later e-mail, Balko wrote me, "It would be difficult to exaggerate how much damage this guy has done, both in the criminal courts and in Mississippi's tort and medical malpractice cases." Looking through his writings on Dr. Hayne, I am convinced that Dr. Hayne is not qualified to be rendering expert testimony, and I direct readers to his compelling writings on the matter. Unlike with blood spatters, in this case, I would say that the evidence speaks for itself.
Follow My Voice: New York Missing Child Case Raises Questions About Admissibility Of Digital Voice Analyses
The Jaliek Rainwalker case in Guilderland, New York, provides a nice opportunity to discuss digital voice analyses. Rainwalker has been missing since last November, and police consider his father, Stephen Kerr, a "person of interest" in the child's disappearance. T.J. Ward from Georgia and Tom Winscher from Wisconsin donated their services in the case. Specifically, Winscher listened to a 28-minute interview of Kerr and his wife, Jocelyn McDonald, in early December and used a digital voice analysis that he says can be applied to recordings and uses changes in the subject's voice to gauge truthfulness. An article on the case, however, notes that "Like the results of a lie detector test, findings are not admissible in court."
My research reveals, however, that such a sweeping statement is unwarranted. Let's start with the opinion of a New York trial court in 1982 in People v. Bein, 114 Misc.2d 1021 (N.Y. Sup. 1982), which provides a nice description of digital voice analyses. According to the court in Bein,
-"[v]oice analysis rests on the unlikeliness that any two individuals could have the same voice pattern, vocal cavities or articulators. [This analysis is done with a spectograph.] Briefly, a sound spectrograph is a device which converts sound waves into electrical signals. These signals are transduced into mechanical energy which operates a stylus. The stylus ‘burns' a visual pattern onto a paper. This pattern is known as a sound spectrogram. This spectrogram is commonly called a ‘voiceprint’. The visual pattern displayed on the spectrogram is an analogue of the frequency, intensity, and duration of the sound waves introduced into the spectrograph. Spectrographic voice analysis consists of using these visual arrays to compare two exemplars of voices to see whether or not the same person spoke on each exemplar."
In Bein, the court found that the results of a spectograph voice analysis were reliable and admissible into evidence. In 1992, the Court of Appeals of New York (the equivalent of most states' supreme courts), reviewed a trial court's decision to admit voice spectrographic evidence without a preliminary inquiry into its validity in People v. Jeter, 600 N.E.2d 214 (N.Y. 1992). The Court reviewed New York precedent and found that "New York courts are split on the issue of admissibility." Id. at 216. The Court of Appeals then neither approved or disapproved of either line of precedent, but it did find that the trial court erred in admitting the voice spectrographic evidence without a preliminary inquiry into its validity. Thus, unless I am missing a subsequent Court of Appeals case or statute precluding the admissibility of digital voice analyses (or if the specific type of voice analysis used by Winscher is inadmissible), the article's sweeping statement was unwarranted.
June 4, 2008
Age Ain't Nothing But A Number, Take 4: Impeachment of Prosecution Witness Through Prior Consistent Statements Allowed In R. Kelly Trial
The R. Kelly child pornography case continues to be the source of numerous interesting evidentiary rulings. The latest relates to the testimony of the final prosecution witness: Lisa Van Allen. Like 14 previous prosecution witnesses, Van Allen identified Kelly and his then-minor goddaughter as the participants in the 27 minute-video. She further testified that the Grammy Award winner made a similar sex tape with herself and the alleged victim in late 1998. Van Allen testified that this video, which she said was filmed in the same location as the one at the center of the trial, could not be entered into evidence because she sold it to the singer's business manager for $20,000 last year.
This testimony, of course, is extremely damaging to R. Kelly's defense, but shortly before Van Allen's testimony, Kelly's team was able to get a favorable ruling from Judge Vincent Gaughan, which will allow them to impeach Van Allen's testimony through a surprise witness: Van Allen's ex-beau Damon Pryor. According to defense counsel, Pryor will testify that Van Allen told him that the video at the center of the case is a fake created by two gentlemen from Kansas City named Chuck and Keith as a scheme to extort money from Kelly. The prosecution objected that testimony concerning Van Allen's alleged statements would constitute hearsay, but Judge Gaughan overruled the objection. Why?
Well, Van Allen testified that she never told Pryor that the video was a fake and denied knowing that two men called "Chuck and Keith" had staged the tape at the center of the case to get money from Kelly. Thus, her alleged prior statements to Pryor are admissible as prior inconsistent statements. See, e.g., People v. Newbill, 873 N.E.2d 408, 416 (Ill.App. 4 Dist. 2007). Now, what's important to note is that Van Allen's alleged prior statements to Pryor are only admissible to impeach her testimony, i.e., to show that the jury that it has reason to doubt her veracity; they are not admissible to prove that the video is in fact a fake or that it was made by "Chuck and Keith" as part of an extortion scheme. Under Illinois Law (Section 115-10.1 of the Illinois Code of Criminal Procedure), the only way that Van Allen's alleged prior statements to Pryor would have been admissible as prior inconsistent statements to prove the truth of the matter asserted in those statements would have been if Van Allen made those prior statements "under oath at a trial, hearing, or other proceeding."
So, Pryor's testimony will not be as damaging to the prosecution's case as it might have appeared. Also militating against potential damage to the prosecutin's case is that fact that defense lawyer Sam Adams Jr. has already stipulated that Pryor is a "con man."
June 3, 2008
Diminishing Returns?: Double Homicide Case Reveals That Tennessee Does Not Have A Diminished Capacity Defense
The last minute plea deal accepted by Antonio Diaz reveals that Tennessee does not allow the defense of "diminished capacity" and does not allow expert testimony on "capacity" unless a two factor test is satisfied. The facts of Diaz's case can be found in State v. Idellfonso-Diaz, 2006 WL 3093207 (Tenn.Crim. App. 2006). Briefly put, in January 2004, the then seventeen-year-old Diaz was a passenger in a pickup truck being driven by Eliseo Quintero, when the two men mistakenly thought that the truck struck Tracy Owen, who had been walking or standing on the side of the road. Diaz subsequently shot Owen, who was pregnant, several times, causing her death. The State charged Diaz with the first degree premeditated murder of Owen and the first degree premeditated and felony murders of her unborn child.
Diaz filed written notice of his intent to call a psychiatric expert to testify at trial, and the State filed a motion in limine. In a hearing on the State's motion, Dr. William Bernet testified that he was a full-time faculty member in the Department of Psychiatry at Vanderbilt University School of Medicine and conducted a pretrial psychiatric evaluation of Diaz. Dr. Bernet testified, inter alia, that Diaz suffered from post-traumatic stress disorder and dysthymic disorder. Dr. Bernet, however, also testified, that “I cannot say that [Diaz] totally lacked the capacity [to premeditate]. I am saying, simply, that his capacity was impaired to some extent." Furthermore, he later acknowledged that he was not concluding that Diaz did not premeditate the crimes but was concluding that all of the factors he had discussed "contribute[d] to this reduced ability to premeditate."
At the close of Dr. Bernet's testimony, the State argued that the jury should not be able to hear his testimony, but the trial court disagreed, leading to the State appealing to the Tennessee Court of Criminal Appeals. That court noted that under Tennessee precedent:
-"[D]iminished capacity is not considered a justification or excuse for a crime, but rather an attempt to prove that the defendant, incapable of the requisite intent of the crime charged, is innocent of that crime but most likely guilty of a lesser included offense. Thus, a defendant claiming diminished capacity contemplates full responsibility, but only for the crime actually committed. In other words, 'diminished capacity' is actually a defendant's presentation of expert, psychiatric evidence aimed at negating the requisite culpable mental state...However, 'such evidence should not be proffered as proof of ‘diminished capacity.’ Instead, such evidence should be presented to the trial court as relevant to negate the existence of the culpable mental state required to establish the criminal offense for which the defendant is being tried.'"
In other words, Tennessee allows a "lack of capacity" defense, but it does not allow a "diminished capacity" defense. Accordingly, experts in Tennessee courts may only render "capacity" testimony when that testimony shows (1) that the defendant “lacked the capacity” to form the culpable mental state and (2) that he lacked the capacity due to a mental disease or defect." The Tennessee Court of Criminal Appeals noted that Dr. Bernet repeatedly stated that he could not say that Diaz lacked the capacity to form the culpable mental states, and thus found his testimony irrelevant and inadmissible. The eventual result of this ruling was Diaz deciding to avoid trial and accept a plea deal under which he pleaded guilty to two counts of second degree murder and received two 40-year concurrent sentences.
So, what do readers think? Should states have "diminished capacity" defenses? It's a question that hasn't received much ink recently, but that might all change with the impending release of Gus Van Sant's movie, "Milk," about Harvey Milk. Those familiar with the Milk assassination may recall that defendant Dan White's defense was diminished capacity (the infamous "twinkie defense"), and that he was found guilty of voluntary manslaughter rather than murder, which led to public outrage and California repealing the diminished capacity defense.
June 2, 2008
Imbalanced Opinion: Eleventh Circuit Approves Of Rule 609(a)(1) Impeachment Without Mention of Balancing Test
The Eleventh Circuit's recent opinion in United States v. Pedron, 2008 WL 2222038 (11th Cir. 2008), is the latest example of a court engaging in an improperly curt consideration of whether a trial court properly allowed for the prosecution to impeach a criminal defendant through a felony conviction under Federal Rule of Evidence 609(a)(1). In Pedron, Jose Pedron appealed from his convictions and 175-month sentence for possession with intent to distribute cocaine, possession with intent to distribute amphetamines on July 14, 2006, possession with intent to distribute amphetamines on July 17, 2006, and possession of cocaine. On appeal, Pedrom claimed, inter alia, that the district court abused its discretion by allowing the prosecution to impeach him with a prior conviction for conspiracy to distribute controlled substances.
The Eleventh Circuit then noted that under Federal Rule of Evidence 609(a)(1), for purposes of attacking a testifying criminal defendant's character for truthfulness, a prior conviction "shall be admitted if the court determines that the probative value ... outweighs its prejudicial effect to the accused...." Without any further explication, the Eleventh Circuit concluded: "At trial, Pedron put his credibility at issue by testifying, and the district court limited the government to one question about the conviction and later admonished the jury that a prior conviction could not be considered in determining Pedron's guilt in this case. In so doing, the district court did not abuse its discretion in admitting Pedron's prior conviction."
My response is that the court left out the most important part of the analysis: the balancing of probative value and prejudicial effect. The Eleventh Circuit's opinion contains no indication that the district court found that the probative value of Pedron's prior conviction outweighed its prejudicial effect (and, of course, no indication that the Eleventh Circuit reviewed the district court's balancing). Furthermore, without knowing more about the prior conviction based upon the Eleventh Circuit's curt conclusion, I would guess that the impeachment was improper Why?
Well, according to the Advisory Committee's Note to the 1990 amendment to Rule 609, "the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice--i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes." This danger is at its highest when, as in Pedron's case, the criminal defendant's prior convictions are similar to the charged crime(s). How do I know this?
Well, courts in several cases apply a five factor test before deciding whether a criminal defendant can be impeached by a prior felony conviction. These factors are:
-1. The impeachment value of the prior crime;
Under factor 3, the more similar the past crime and the charged crime(s), the more prejudicial the proposed impeachment because of the fear that jurors will use the conviction not as impeachment evidence but as propensity evidence. So, why didn't the Eleventh Circuit apply the five factor test? Well, like the eternal question of how many licks it takes to get to the center of a Tootsie Roll Pop, the world may never know. In some cases, the Eleventh Circuit has applied the five factor test. See, e.g., United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992). In other cases, like the Pedron case, it hasn't applied it. I don't see any justification for not applying the five factor test or at least weighing probative value and prejudicial effect in some manner, and, in cases like the Pedron case, the likely result is felony convictions being admitted against criminal defendants despite their high prejudicial effect.
June 1, 2008
Seattle's Best?: Seattle Judges Rule That Breath Test Results Will Be Inadmissible Until Accuracy Problems Are Fixed
Last week, I wrote about the ruling by a Tucson judge questioning the reliability of the alcohol breath test used in Arizona since December 1, 2006 and thus jeopardizing countless DUI prosecutions. Well, that's nothing compared to the problems that Seattle has had with alcohol breath tests for over a half decade. Specifically, "in a ruling that could affect hundreds of Seattle cases, a panel of Seattle Municipal Court judges said [last] Monday that the results of breath tests would not be admissible in court until reputed problems with the machines' accuracy are fixed."
These problems were first reported last year when former lab manager Ann Marie Gordon was accused of signing sworn statements that she had personally checked that breath-test machines were working properly, when other toxicologists had in fact conducted the checks. Worse, an audit of Gordon's toxicology lab by the American Society of Crime Lab Directors last fall uncovered numerous problems, and earlier this year a panel of King County District Court judges blasted the lab, saying leaders had created a "culture of compromise" with so many "ethical lapses, systemic inaccuracy, negligence and violations of scientific principles" that the breath tests should not be used as evidence in pending cases of driving under the influence. These judges noted at least 150 errors at the lab, including machine-calibration errors, the recording of incorrect data, and a failure to test an ethanol-water solution used to ensure correct readings by the breath-test machine.
Last Monday, the panel of Seattle Municipal Court judges added unchecked software problems to the list of grievances with the breath tests. Apparently, these Seattle Municipal Court judges are not alone as their ruling is similar to several others in Washington state. Meanwhile, Seattle City Attorney Tom Carr noted that the ruling was nothing new as "the issue has been ongoing since 2002...when the local courts first banned breath-test evidence."
Unaware of this history, I decided to look into the case law and found the issue addressed in State v. MacKenzie, 60 P.3d 607 (Wash.App. Div. 1 2002), where the Court of Appeals of Washington found that the state toxicologist was justified in promulgating temporary emergency regulations when no quality assurance procedures were performed to ensure the reliability of breath test equipment after the legal breath alcohol concentration limit in Washington was lowered from .10 to .08. What this means is that there are serious questions about the reliability of breath test evidence, at the very least in Washington, Arizona, and New Jersey. When we add to this the questions about the reliability and admissibility of HGN test results, we see that things are very uncertain in DUI cases.