June 21, 2008
Sentence Falls, Idaho: Supreme Court of Idaho Vacates Death Sentence After Religious And Character Attacks Against Defendant During Victim Impact Statements
In State v. Payne, 2008 WL 2447447 (Idaho 2008), Darrell Payne was convicted of first-degree murder, first-degree kidnapping, robbery and rape, and sentenced to death, all in connection with acts that he allegedly committed against Samantha Maher. His appeal of his convictions eventually reached the Supreme Court of Idaho, which affirmed Payne's convictions but vacated his sentence in an opinion that nicely details what can't be included in victim impact statements in capital cases.
Let's skip the evidence of Payne's guilt and move right to the substance of the victim impact statements presented at Payne's sentencing hearing. The prosecution introduced into evidence "an excessive number of letters from family members and friends, many of which stated the author's opinions about Payne, his character and the crime." Many of these individuals also testified at the hearing "and gave their opinions about Payne, his character and the crime." Specifically, witnesses described Payne as "evil, a waste of aspirin, a sociopath, a cold-blooded killer, unremorseful, a predator, cold and calculating, not a man, not even human, selfish, a coward, a pathetic monster, a wimp and a man without a conscience."
Some witnesses also expressed their wishes that Payne "rot in hell," "burn in hell" or "be tortured.". One witness noted Bible passages he wished the court to consider, with each passage calling for death for a certain crime. This witness testified that:
-Numbers 35:16 states, "'If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death;"
-Deuteronomy 24:7 states, "If a man is caught kidnapping one of his brother Israelites and treats him as a slave or sells him, the kidnapper must die. You must purge the evil from among you;" and
-Deuteronomy 22:25 states, "But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die."
The Idaho Supreme Court found that all of these letters and testimony were improperly admitted. As support for this conclusion, the court noted that pursuant to precedent from both the United States and Idaho Supreme Courts, while "evidence relating to the victim's personal characteristics and the impact of the crime on the murder victim's family is admissible, characterizations and opinions about the crime, the defendant and the appropriate sentence are not admissible." See Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991); State v. Lovelace, 90 P.3d 298, 305 (Idaho 2004). The Court further found that "references to or arguments using religious authority as the basis for punishment is improper and have been condemned by virtually every court to consider their use." See Sandoval v. Calderon, 241 F.3d 765, 766-67 (9th Cir. 2000). The court found this to be he case "because the death penalty may only be imposed when the fact finder carefully focuses on the specific statutory factors and because reference to religious authority undermines the fact finder's role and sense of responsibility in sentencing a defendant to death."
The court then concluded that the admission of this evidence was not harmless error and accordingly vacated Payne's death sentence and remanded for resentencing before a different judge. It is a decision with which I agree in that it seems in line with precedent from across the country and also seems to cohere with the notion that justice should be based upon the facts rather than emotional or spiritual appeals.
June 20, 2008
Article of Interest: Professor Philip K. Hamilton's Should Statements Made by Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique
New England School of Law Professor Philip K. Hamilton recently published the fascinating article, Should Statements Made By Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique, in The John Marshall Law Review. The article is concerned with Federal Rule of Evidence 803(4), the medical treatment exception to the rule against hearsay, which allows for the admission of "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Hamilton concludes that courts should discontinue the use of this exception to admit statements made by patients in mental health treatment or in contemplation of such treatment and that the exception should never be used to admit statements made to a mental health professional consulted for diagnosis only.
After the article's introduction, Hamilton begins by arguing in Part II that application of the medical treatment exception to patients in psychotherapy is unfair compared to its application to patients seeking diagnosis or treatment of physical problems. Ordinarily, the statements admitted under the exception against a patient seeking physical treatment are statements of medical history -- the same facts that were most important to the diagnosis and treatment of the physical condition, (e.g., nature and severity of pain, its location, time of onset, apparent causes). Conversely, the statements admitted under the exception against patients in psychotherapy (e.g., details of assault, relationship to defendant, acts of co-workers, etc.), are generally much less central to the diagnosis of the patient's mental condition, and thus precisely those facts that are least likely to have been explored in the treatment, and certainly much less explored than the patient's statments about his feelings and other symptoms. Hamilton notes that judges nonetheless have made matador-style rulings in psychotherapy cases, typically approving the admission of psychotherapy patients' statements by equating psychological treatment with medical treatment and showing little understanding of the differences between the two types of treatment even when they ostensibly apply a more exacting analysis.
In Part III, Hamilton argues that such decisions are problematic because the rationale behind the medical treatment exception is that patient's statements have "guarantees of trustworthiness." This trustworthiness is primarily based upon patients' "selfish treatment interest," the perceived need to speak accurately in order to receive appropriate treatment (and relief from their presenting symptoms)." According to Hamilton, however, patients who receive or who will receive psychological treatment do not have the same kind of selfish treatment motivation as patients seeking treatment of physical injuries and don't similraly have their statements vetted for truthfulness by the person treating them.
Hamilton first considers statements made during mental health treatment and comes to the following conclusions:
-in the typical medical interview, the doctor takes the patient's information and challenges and clarifies it to ensure efficacious treatment whereas the typical mental health professional is most concerned with fostering a warm, personable, and confiding relationship and is less concerned with, and in fact, dissuaded from, challenging the trustworthiness of his patient's statements;
-psychiatric patients are more likely than other medical patients to misreport through distortion, incomplete disclosure, or deliberate deception based upon, inter alia, their illnesses, fear, and/or the desire to avoid responsibility or humiliation;
-while the efficacy of mental health treatment does depend on accurate information about symptoms, unlike with other medical patients, it does not depend substantially on the accuracy of the patient's statements about the events leading to the patient's distress;
-(patients treated for trauma are especially likely to have memory distortion, a desire to conceal the truth based upon feelings of shame and responsibility, and impairments in thinking and decision-making); and
-the facts that are recited by the patient in mental health treatment are ordinarily much less susceptible to verification by the clinician.
Hamilton thus concludes that the medical treatment exception should not apply to statements made during mental health treatment. He then identifies an even more pernicious application of the exception: its application to patients, most frequently trauma patients, being treated by a non-mental health medical professional who was also evaluating the patient for referral to mental health treatment for the trauma. Hamilton identifies a line of cases where courts admitted statements made by patients in this context and identifies at least two problems with their decisions:
-first, the situations in which such statements arise raise serious concerns about the accuracy of the victim's perception and memory and his need to conceal the truth; and
-second, there is no evidence in these cases that the victims themselves were aware that their statements were related to their mental health treatment or even that such treatment was contemplated, meaning that there could have been no "selfish treatment interest" ensuring accuracy.
Finally, in Part IV, Hamilton argues that, whether in the medical or mental health treatment context, the medical treatment exception should not apply to statements made for the sole purpose of diagnosis, with no eye toward treatment. Hamilton notes that such statements were deemed inadmissible before the passage of the Federal Rules of Evidence and that, while those Federal Rules overruled that line of authority, its rationale for doing so was undermined by the 2000 amendment to Federal Rule of Evidence 703. He then notes that the cases dealing with statements made to mental health professionals have been strikingly inconsistent, perhaps reflecting discomfort with the anomalous state of the rule. Hamilton argues that all courts should side with the courts that have rejected the admission of statements made for the sole purpose of diagnosis, and thus concludes based upon the entirety of his article that Federal Rule of Evidence 803(4) should be amended to read:
-"The following are not excluded by the hearsay rule, even though the declarant is available as a witness.
. . .
Statements for the purposes of medical
diagnosis or treatment. Statements made for the purposes of medical diagnosis or treatment of a physical illness or injury and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
I found the article to be very convincing, agree to the amendment suggested by Hamilton, and highly recommend the article to anyone with an interest in this area of the law. I wrote Professor Hamilton and asked him about what led him to write the article and about plans for future scholarship, and he responded:
"I was motivated to write it after a conversation with a defense attorney several years ago. He was representing a man in a case involving a sexual offense. The complaining witness was a woman with a history of mental illness and she had committed suicide. The lawyer told me that he had suggested to the prosecutor that the case would have to be dismissed because of a lack of evidence, now that the complainant couldn't testify. The prosecutor replied that he would prove the case through the decedent's psychiatrist, who would testify to what the decedent had told the psychiatrist about what the defendant had done to her. The prosecutor said that the testimony would be permitted under the medical treatment hearsay exception. As a longtime Evidence teacher who knew something about psychotherapy, I didn't think that was right, but when I did some research I found that some courts actually used that exception to allow exactly that kind of hearsay into evidence. So I wrote the article.
I am beginning research on whether there should still be an exceptionfor an excited utterance, given what we now know about the brain."
June 19, 2008
AFI Issues List of the 10 Greatest Courtroom Dramas
The AFI has come out with its 10 Greatest Films in 10 Classic Genres, including the Top 10 Courtroom Dramas (I'm guessing that the word "Drama" is why the classic "My Cousin Vinny" didn't make the cut). And it looks like a pretty solid list:
10. “Judgment at Nuremberg” (1961)
9. “A Cry in the Dark” (1988)
8. “In Cold Blood” (1967)
7. “Anatomy of a Murder” (1959)
6. “Witness for the Prosecution” (1957)
5. “A Few Good Men” (1992)
4. “The Verdict” (1982)
3. “Kramer vs. Kramer” (1979)
2. “12 Angry Men” (1957)
1. “To Kill a Mockingbird” (1962)
It's tough to argue with anyf these selections, save possibly "A Cry in the Dark," which seems like an obscure choice better known for spawning the phrase "The dingo's got my baby" more than anything else. I'll have to see that one, though, before passing judgment. Besides that one, though, you have a series of amazing films made by amazing directors (2 by Sidney Lumet, and 1 by Richard Brooks, Otto Preminger, and Billy WIlder) and/or from terrific source material ("To Kill a Mockingbird" and "In Cold Blood").
So, what other options might the AFI have chosen? Off the top of my head, here are a few thoughts: "The Accused," "A Soldier's Story," "The Insider," "...And Justice for All," "Inherit the Wind," and "Primal Fear." Some might want to include "Philadelphia," but I didn't care for it that much. So, what do readers think? Are there any movies missing?
Trawl Fishing?: Supreme Court of California Affirms Use of Product Rule To Match Defendant's DNA In Cold Case
Earlier, this week, the Supreme Court of California affirmed the first degree felony murder conviction of Dennis Louis Nelson in People v. Nelson, 2008 WL 2404949 (Cal. 2008), in the process affirming the use of the "product rule" in Nelson's "cold hit" case. But was the ruling correct?
In Nelson, on February 25, 1976, 19 year-old college student Ollie George was found dead, raped and drowned in mud in Sacramento County, California. George had disappeared two days earlier, shortly after witnesses saw her inside a car at a shopping center. A couple of weeks after George's death, one of these witnesses saw what he believed to be that same car and contacted police, who traced the car to Nelson and questioned him. The witness' tip, however, was merely one of hundreds of tips and did not lead to any charges being brought, making the George murder a cold case.
It remained that way until October 2000, when California allocated funds to enable local law enforcement agencies to utilize DNA to solve sexual assault cases that lacked suspects. In July 2001, a review of Ollie George's death determined that the case had biological evidence that warranted analysis. An analyst conducted a vaginal swab on George to develop a DNA profile and then compared it with the state's convicted offender databank, resulted in a match with Nelson (Cases like Nelson's are sometimes called "trawl cases" because the match was discovered by searching a database of previously obtained DNA samples).
A criminalist then applied the "product rule," which is a statistical method to calculate the rarity of a given DNA sample in the relevant population, expressed as the probability of a single random person possessing the same DNA profile as the person whose DNA was found at the crime scene. Comparing 15 loci, the criminalist determined, inter alia, that the DNA profile on the vaginal swab would occur at random among unrelated individuals in about one in 950 sextillion African-Americans (Nelson is African-American, and there are 21 zeros in a sextillion). The prosecution admitted this evidence over Nelson's objection, and he appealed this ruling and others on his appeal, which eventually reached the California Supremes.
Now, first, let's look at what the appeal did not concern. Nelson did not claim that there was any problem with the "product rule" as applied to a single suspect. As the court noted, Nelson agreed with the state "that using the product rule to calculate the random match probability makes sense when comparing one suspect's profile with the crime scene evidence because, as he explains, the random match probability 'estimates the chance that any single, random person drawn from the relevant population would have the same DNA profile as that of the unknown person whose DNA was found at the crime scene.'" Indeed, such a challenge would be difficult because, "[a]t present, courts across the nation have accepted the results of DNA typing into evidence and ruled the product rule, and the frequency tables underlying it, an acceptable way to represent the significance of a match." Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 781 (2007).
Instead, Nelson's argument was that while the product rule makes sense in a single suspect case, there is a problem with applying the product method to a trawl/cold case because, when a suspect is found by a search of a large DNA database, the chance of a coincidental match is increased because "a single genetic profile (from the crime scene evidence) is compared to the very large number of profiles in these databases." He therefore claimed that application of the product rule to a trawl/cold case was a new scientific technique, meaning that it had to pass California's Kelly test, which requires that the technique must have gained general acceptance in the field to which it belongs. The Supreme Court of California, however, rejected this argument, finding that "[t]he Court of Appeal in this case and other courts that have considered this question have concluded that use of the product rule in a cold hit case is not the application of a new scientific technique;" it also rejected Nelson's argument that evidence obtained from application of the product rule to a trawl/cold case was irrelevant.
Reviewing these cases and Erin Murphy's aformentioned article, it's tough to argue with the court's opinion, but the Murphy article reveals that it's possible that the times they are a-changin'. First, with regard to the product rule in general, Murphy notes that "recent evidence calls into question the accuracy of using the product rule to convey match probabilities." She specifically cites to, inter alia, some eye opening research conducted by an alert analyst and emerging independent research indicating that an assumption underpinning the product rule - that of independence at the various loci - may not hold true for all populations.
And what about Nelson's argument about the difference between single suspect and trawl/cold cases? Well, according to Murphy, there is considerable disagreement on the issue. Some suggest that the results of a “trawl” are more reliable than in a simple confirmation case, because the analyst has compared the genetic profile to a database and excluded a large number of persons whereas some contend that the likelihood of a "false positive" increases as the analyst looks in a database for a match, and thus the statistical probability should be accordingly discounted by this risk. All of which leads me to concur with Murphy's conclusion that "[r]ather than render admission of a methodology a one-time question that, once answered, is rarely asked again, the law should affirmatively require the government to provide evidence verifying the technique's continued viability."
June 18, 2008
Three Strikes And They're Out: Ninth Circuit Finds That Rule 609(b) Applies To Old Convictions Used To Enhance A Subsequent Sentence
The Ninth Circuit's recent opinion in Simpson v. Thomas, 2008 WL 2357376 (9th Cir. 2008), dealt with an issue of first impression: whether prior convictions more than ten years old may be used for impeachment purposes under Federal Rule of Evidence 609(b) if those prior convictions were used to enhance a sentence for a separate conviction that falls within the ten-year time limit of Rule 609(b). The Ninth Circuit answered, "No," and I agree with its decision.
In Thomas, inmate Gary Simpson filed suit under 42 U.S.C. Section 1983 alleging that Sergeant Jeffrey Thomas, a corrections officer at a state prison, used excessive force after Simpson did not comply with Thomas' orders. The allegations stemmed from an altercation between the two men; Simpson claimed that Thomas wantonly attacked him while Thomas claimed that he was merely attempting to restrain the aggressive Simpson.
In deciding whose story to believe, the jury was, over defense counsel's objection, able to consider the impeachment value of three of Simpson's prior conviction:
-a 1986 felony conviction for burglary;
-a 1989 felony conviction for illegal possession of narcotics; and
-a 1993 felony conviction for possession of marijuana with intent to distribute.
Simpson was release from incarceration for all three of these convictions more than ten years prior to trial, arguably triggering Federal Rule of Evidence 609(b), which states in relevant part that "[e]vidence 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."
The district court, however, admitted the prior convictions in spite of Rule 609(b)'s ten-year time limit because under California's Three Strikes Law, the prior convictions were subsequently utilized by a sentencing court in sentencing Simpson for a subsequent conviction for second degree armed robbery in 1996. Specifically, according to the district court, the prior convictions were "utilized by the sentencing court when they made the determination to give him [the sentence being served at the time of trial]" and thus "those prior strikes were not and do not wash out...regardless of the fact that they may be older than ten years." Moreover, the district court found that "one of the things that's utilized by the institution to determine the level of security, classification, location...is all based on the plaintiff's prior felony convictions." In other words, according to the district court, the Three Strikes law made it so that 10 years had not elapsed since Simpson had been released from the confinement imposed from his 1986, 1989, and 1993 convictions; instead, he was still confined in part due to those convictions.
On appeal, however, the Ninth Circuit reversed. It noted that it had previously concluded that the Federal Three Strikes Provision did not violate the Double Jeopardy Clause because, under the Provision, "the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest offense." The Ninth Circuit then found that the same reasoning applied to California's Three Strikes Provision. In other words, Simpson was not still confined due to his 1986, 1989, and 1993 convictions; instead, he was released from his confinement for those convictions more than 10 years before trial, and he was now serving a stiffened penalty based on the 1996 conviction. The Ninth Circuit thus found that Federal Rule of Evidence 609(b) applied to the earlier convictions, that the District Court failed to find that the probative value of these convictions substantially outweighed their prejudicial effect, and that the erroneous admission of these convictions more likely affected the verdict. The court thus reversed and remanded, a decision with which I agree based upon the plain language of Federal Rule of Evidence 609(b) and the Double Jeopardy-avoiding interpretation of the Three Strikes Provision.
June 17, 2008
Dead Man's Chest, Take 2: New York Court Of Appeals (Incorrectly) Reverses Dead Man's Statute Ruling In Lawyer Discipline Case
Last October, I wrote about the opinion of the New York Supreme Court, Appellate Division, First Department in In re Zalk, (N.Y.A.D. 1 Dept. 2007), in which Manhattan attorney Richard A. Zalk was alleged to have stolen $172,151 from his clients, Arthur and Ruth Gellman. Zalk began representing the Gellmans in 1979, and, according to Zalk, after Arthur died in 1990, he continued to represent Ruth over the next 10 years, without billing her, in connection with her ownership of an apartment. In 2000, Ruth sold the apartment for $2 million, $200,000 of which was paid into Zalk's escrow account as a down payment. After closing, Ruth died, and Zalk kept $172,151 in the escrow account for himself. He claimed that Ruth told him to keep this amount in the account as payment for his 10 years of unpaid legal services. The First Department, however, found that Ruth's alleged statement to Zalk about keeping this money as payment was inadmissible during the guilt phase of his trial under New York Dead Man's Statute (NY CPLR 4519).
Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate (For instance, the New York Dead Man's Statute prevents testimony "against the executor, administrator or survivor of a deceased person."). The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury. Or, an attorney charged with taking money from his now deceased client could not testify that his client told him he could take the money as payment for his previous pro bono representation.
As I noted in my previous post, the First Department found that Zalk's testimony was "against" Ruth's estate even though her daughters were not parties to the hearing because (1) it went against their competing claim to the money, and (2) the court could have ordered that Zalk make monetary restitution to Ruth's daughters. I agreed with this reasoning and concluded:
"I don't see how the New York Court of Appeals could change the evidentiary ruling. Zalk was clearly an interested party as he stood to acquire $172,151 if Ruth's alleged promise was true. Furthermore, Ruth was clearly deceased at the time that Zalk wanted to testify. The reasoning behind the statute, protecting the deceased's estate from "plundering," was clearly at play in the case. And the court's argument about why Zalk's testimony went "against" Ruth's estate seems pretty persuasive."
And guess what? Last week, the Court of Appeals of New York (the quivalent of most states' supreme courts) reversed the First Department's ruling in In re Zalk, 2008 WL 2367490 (N.Y. 2008). But guess what else? I stand by my earlier decision and think that the Court of Appeals' opinion engages in the same type of semantic gymnastics and insouciance to the purpose behind a statute/rule that has plagued courts in the nolo contendere/Rule 410 context as identified in my post last week and my article, The Best Offense is a Good Defense. So, where did the Court of Appeals go wrong? Let's look at its opinion.
According to the Court of Appeals, "although Zalk 'testified 'as a witness in his own behalf or interest,' ... he did not testify 'against the executor, administrator or survivor' of Mrs. Gellman. Rather, he testified against the Disciplinary Committee, which is none of these latter....' In essence, the [Disciplinary] Committee takes the position that, although the Gellman daughters are not parties to the disciplinary proceeding, the rules of the Fund and the doctrine of collateral estoppel endow them with a vital interest in a finding that Zalk converted estate monies. But the Dead Man's Statute only applies to testimony 'against the executor, administrator or survivor' of the deceased. It does not foreclose testimony that potentially cuts against these parties' interests in a contingent future proceeding."
And my response is: How did Zalk not testify against Ruth's estate? The Court of Appeals appears to be adding words to the Dead Man's Statute, making it applicable only when there is proposed testimony "against the executor, administrator or survivor of a deceased person [and the executor, administrator or survivor is also a party to the action.]" Yet, if we compare other rules of evidence, we see that there is no reason to construe the statute in this manner.
The best example is the statement against interest exception to the rule against hearsay contained in Federal Rule of Evidence 804(b)(3) (and state counterparts), which states that when you have an "unavailable" witness, and that witness made "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true," the statement is admissible as an exception to the rule against hearsay. Now, what is the import of this rule? Does it mean that the statement must be against the declarant's interest in the present action or that the declarant be a party in the present action?
The answer to both questions is "No," and, indeed, Federal Rule of Evidence 804(b)(3) (almost) always applies to a non-part witness, not a party. Instead, we deem such a statement a statement "against interest" because it will potentially cut against the declarant's interests in a contingent future proceeding. In other words, it is a statement "against interest" in precisely the same way that the Disciplinary Committee argued that Zalk's testimony was a statement "against the executor, administrator or survivor" of the deceased.
But we can take it even a step further because Federal Rule of Evidence 804(b)(3) can, again, (almost) never be used to harm the declarant's interests in the action in which it used because the declarant is (almost) always a non-party witness. In contrast, as the First Department noted, the court hearing Zalk's case could have ordered that Zalk make monetary restitution to Ruth's daughters, meaning that the admission of Zalk's testimony could clearly harm their interests. Unfortunately, the Court of Appeals failed to address this point.
At best, I will grant that the language of the New York Dead Man's Statute is ambiguous, which should have forced the Court of Appeals to consider the purpose of the Statute, which, as I noted above, is to protect a deceased's estate from plundering through false statements. And yet, the Court of Appeals rejected out of hand the proposition that the Dead Man's Statute "foreclose[s] testimony that potentially cuts against these parties' interests in a contingent future proceeding." In other words, it rejected an interpretation of the Dead Man's Statute which effectuated the purpose behind the Statute, which is to protect the deceased's estate.
So, what do readers think? Am I way off base, or did the Court of Appeals commit serious error?
June 16, 2008
Rhode Island Reversal: Witness Murder Trial Raises Fascinating Issue Which Begs Us To Put Ourselves In The Jury's Shoes
The Supreme Court of Rhode Island's recent opinion in State v. Pona, 2008 WL 2369223 (R.I. 2008), raises a fascinating evidentiary issue: If a defendant is on trial for murdering a witness against him in a murder trial, is evidence that he committed the murder that was the subject of the first trial admissible in his subsequent trial to prove his motive to kill the witness? Here is a (very) brief summary of the facts of the case:
Jennifer Rivera, an eighth-grade student at Roger Williams Middle School, was murdered by Dennard Walker, the half brother of Charles "Manny" Pona. Before her murder, Jennifer had testified at a bail hearing at which she had identified Pona as the murderer of Hector Feliciano, and she was scheduled to testify as the principal prosecution witness at Pona's imminent murder trial, which nonetheless concluded with a jury finding Pona guilty of murder. There was no question that Walker, who pled guilty to killing Jennifer, murdered her to prevent her from testifying against Pona; the only question was whether Pona conspired with Walker to commit the murder. The prosecution believed that he did and charged him with murder, conspiracy to murder, carrying a firearm without a license, committing a crime of violence while carrying a firearm, and obstruction of justice. A jury convicted Pona on all counts, prompting his appeal, which eventually reached the Supreme Court of Rhode Island; the Court vacated the judgments of conviction and remanded to the Superior Court for a new trial.
On appeal, Pona raised three evidentiary issues, with one being that the Superior Court erred by allowing the state to present evidence indicating that he was guilty of Feliciano's murder. So, how was this evidence admitted? Well, first of all, at a pretrial hearing, Pona successfully moved to have any reference to his conviction for Feliciano's murder deemed inadmissible and replaced with a stipulation that he "was charged with a felony, and the principal witness and the only witness was Jennifer Rivera." This ruling makes sense to me because Rhode Island Rule of Evidence 404(a) provides that "[e]vidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion." Because the probative value of Pona's conviction relied on the aphorism "once a killer, always a killer," it was inadmissible under this Rule. See United States v. Rubio-Estrada, 857 F.2d 845, 852 (R.I. 1988). (Indeed, the state agreed that a reference to Pona's conviction for Feliciano's murder would be unfairly prejudicial).
Furthermore, while Rhode Island Rule of Evidence 404(b) does allow evidence about other crimes, wrongs, or acts "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable," I don't think that any of these "other purposes" were applicable to the conviction. For instance, the fact that Pona was convicted after Jennifer was murdered could not have given him a motive to murder her. So, Pona's conviction was out, but what about evidence tending to indicate that Pona murdered Feliciano? Would evidence that Pona was actually guilty of murdering Feliciano tend to prove that he had a motive for murdering Jennifer? This was the argument successfully presented by the state for admitting evidence that, inter alia, Pona's pager was found at the scene of Feliciano's murder and that his fingerprints were recovered from the car that was used to flee the area where that the homicide occurred.
And I think that most readers would agree that this ruling makes sense on at least an intuitive level. If asked whether a person who was actually guilty of murder was more likely to murder the principal witness against him than a person who was actually innocent, I think that most people would answer, "Yes." Thus, evidence that Pona actually killed Feliciano would be probative on the issue of whether he conspired to kill Jennifer. But look yourself in the mirror and ask yourself this question: Did you answer yes primarily because the actual murderer would have a greater motive to kill the witness or primarily because of the aphorism "once a killer, always a killer?"
On appeal, Pona successfully argued the latter, and here is why the Rhode Island Supremes accepted his argument. They first noted that "[i]n deciding whether to admit evidence pursuant to Rule 404(b), a trial justice must carefully weigh the possibility that this evidence will unfairly prejudice the accused." They next noted that even if this hurdle is leaped, the evidence still must be deemed admissible under Rhode Island Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Based upon these "twin analyses," the Court found that Pona was denied his right to a fair trial based upon the unfairly prejudicial nature of the evidence and vacated the judgments of conviction.
So, did the Court get it right on this issue? I've been playing it through my mind all weekend, and my humble guess would be that it did not. As noted above, it seems clear that the pager and fingerprint evidence had some probative value on the issue of motive, and I'm not convinced that this probative value was substantially outweighed by the unfair prejudice that jurors might use that evidence as propensity evidence (and the unfairness of that prejudice is mitigated by the fact that a jury actually found Pona guilty of the Feliciano murder). In the abstract sense, though, I lack any conviction in my disagreement with the Court because I have this nagging sense in the back of my head that, removing the "once a murderer, always a murderer" rationale for the evidence, a defendant with significant evidence of his guilt (such as the pager and fingerprints) might actually have less motive to kill a prosecution witness than a defendant with minimal evidence of his guilt because the witness' testimony would be that much more important.
But there's one fact I've withheld to this point which tips the scales to the point where I feel that I'm not taking a complete shot in the dark with my disagreement. And that fact is this: The state presented the testimony of Dennis Fullen, a Pona family friend, who shared a cell with Pona as he awaited release on bail after he was indicted for Feliciano's murder. And Fullen testified at trial that Pona discussed with him the evidence that the state had against him in that case and that Pona said he would have to “dump” Jennifer to defend the case successfully, which Fullen understood to mean that Pona believed that he had to kill her. To me this ratchets up the probative value of the pager and fingerprint evidence and provides specific evidence that Pona had a motive to murder Jennifer. Thus, in my mind, the Superior Court did not err in admitting the evidence.
So, let's return to the question that opened this post: If a defendant is on trial for murdering a witness against him in a murder trial, is evidence that he committed the murder that was the subject of the first trial admissible in his subsequent trial to prove his motive to kill the witness? My answer in a typical case would be a very tentative "Yes," with the answer in the Pona case being a slightly more firm "Yes." So, what do readers think?
(I should note that simply because I disagree with the Rhode Island Supreme Court on this issue does not mean I disagree with their disposition of the case. As I noted, Pona raised three evidentiary issues. The second issue was that the Superior Court admitted the entire audio-tape recording of Jennifer's bail-hearing testimony, permitting the jury to hear the young victim's “voice from the grave” (as described by the prosecutor in closing) for hours on end. The third issue was that Fullen unexpectedly provided irrelevant testimony that he frequently engaged in the illegal drug trade with Pona, and the Superior Court failed to declare a mistrial and instead issued a woefully inadequate instruction to jurors to ignore the testimony. I agree with the Rhode Island Supreme Court that both of these decisions were erroneous, and I think that either could have independently formed the basis for a new trial.).
June 15, 2008
Age Ain't Nothing But A Number, Take 5: Why The Jurors Found R. Kelly Not Guilty
In the end, according to the Chicago Tribune, the jury acquitted R. Kelly not because they thought that the videotape was a fake, not because of the appearing/disappearing mole on the back of the man in the video, and not because of defense counsel's claim that R. Kelly's head may have been superimposed on another man's body a la the Wayans' Brothers movie, "Little Man." Instead, the jury acquitted the R&B superstar based upon the simple fact that, like prosecution witnesses in the case, they were divided on the issue of whether the girl in the tape was in fact Kelly's then 13 year-old goddaughter. According to the Trib article, "[m]ost jurors said they discounted all of the testimony from members of the alleged victim's family. Two aunts, an uncle and a cousin of the girl testified for the state that their relative was in the video. An aunt, uncle and a cousin testified for the defense that she was not." According to one juror, "The family was divided. We couldn't go by that." Instead, the jurors likely needed testimony by the alleged victim.
As I noted in my first post on the case back in November, such testimony was not to be. As I noted back then:
"A significant obstacle faced by the Illinois prosecutors is that the girl they claim is in the video, who is now in her early 20s, claims and has provided grand jury testimony that she is not the girl in the tape. Prosecutors sought to rebut this denial through the testimony of Sharon Cooper, a developmental and forensic pediatrician, who was to testify that the girls' denial is behavior typical of victims of child pornography
Now, if the alleged victim claimed that she was the girl in the video, Cooper could have testified that her behavior and symptoms were consistent with the behavior and symptoms of sexually abused children, and she has done so in several cases. See, e.g. State v. Hess, 632 S.E.2d599 (N.C.App. 2006). The problem in this case, however, is that the alleged victim is claiming she was not in fact the victim in the video, and the judge thus found that Cooper's testimony was inadmissible because it would have constituted an improper comment on the alleged victim's grand jury testimony."
While many evidentiary rulings and interesting twists in the case followed, it appears that the prosecution's fate was thus sealed last November.
There Will Be Blood: Father's Day-Related Case Results in Affirmance of Trial Court's Evidentiary Ruling, But On Different Grounds
The Court of Appeals of Texas' recent opinion in Cooks v. State, 2008 WL 313050 (Tex.App.-Texarkana 2008), deals with a strange set of facts and contains a strange ruling, with the court affirming the trial court's opinion despite finding fault in its reasoning. The brief facts of Cooks are as follows:
On the night of June 11, 2005 and in the early morning hours of June 12th, it became apparent that Kenneth Cooks might have done something to James Millis. Cooks was riding ATVs and motorcycles with his brother and another person near the place that Cooks was living, which in turn was close to Millis' residence. Cooks then disappeared for a while before being found by the other two men, sitting on a trailer at Millis' residence and making claims that Millis had instructed him to wait there for him to return.
In the wee hours of the next morning, Cooks appeared at the Kyle's Quick Stop convenience store three times. The first visit was at about 1:30 a.m., with Cooks acting "excited" and "fidgety" as he related to the attendant at one time that Jethro Bodine (of the Beverly Hillbillies television show) was in his family and at another time that he (Cooks) was either Bodine or that he was Robocop. The attendant called the sheriff's office, but Cooks left before the deputies arrived. On the second visit, Cooks maintained that it was not he who had previously been at the convenience store, but rather, it had been his identical twin brother. who was Robocop, and whom Cooks killed in self defense. The attendant again called the sheriff's department, but Cooks again left before the deputies arrived.
On Cooks' third visit, he was dressed in a blue and white striped shirt, which was later identified as either the same one or very similar to the one which Millis' daughter had just recently given him for a Father's Day present. This time, the attendant called the sheriff's department, and a deputy promptly arrived and noticed a substantial amount of blood in the bed of the old pickup truck Cooks was driving; Cooks, however, indicated that he had hauled the body of a dead dog in the truck earlier and that the blood had come from the dog, an explanation which placated the deputy.
At around 7:00 A.M., two men saw Cooks driving a truck that belonged to Millis. Then, at about 8:30 A.M. Reggie Lawler saw Cooks driving Millis' truck and followed him to Millis' mobile home, whereupon Cooks rapped on the side of Millis's mobile home and began to call out excitedly, "Hey, man, come here, blood." This frightened Lawler, who went to a local police station which ended up being closed. In the end, it was Cooks who called the police and reported that he found blood at Millis' mobile home. A deputy sheriff subsequently arrived and found blood all over the premises, the mobile home, and the truck.
The deputy sheriff read Cooks the Miranda warnings, and Cooks eventually admitted that he choked Millis, although he claimed that he did not kill Millis and that he was acting in self-defense. Cooks was then taken to the emergency room of a hospital for a specialist to take samples from under his fingernails and to garner other forensic evidence. While he was waiting there, Cooks fell asleep, and, when he was awakened by the nurse, he inquired, "Did you find the body?" The body was indeed found; Millis was dead, heaving been stabbed, choked, and beaten. Cooks was eventually convicted of murdering Millis and sentenced to 70 years' imprisonment after the jury rejected his insanity defense despite evidence that he suffered from advanced schizophrenia.
On appeal, he claimed that the trial court erred by, inter alia, admitting his question to the nurse as an excited utterance. The Court of Appeals agreed, finding that his question did not meet the requirements of the excited utterance exception to the rule against hearsay contained in Texas Rule of Evidence 803(2), which allows for the admission of "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." While the court did not explain its conclusion, it seems clear to me that it (1) could have found that being awoken by the nurse was not a startling event and/or that Cooks was not stressed/excited upon being awoken; and/or (2) must have found that even if being awoken was startling, Cooks' statement did not relate to being awoken by the nurse but instead related to the alleged murder of Millis.
The Court of Appeals, however, noted that even when the trial judge gives the wrong reason for his decision, if the decision is correct on any theory of law applicable to the case, it will be sustained. The court then implicitly concluded that Cooks' statement was admissible as an admission under Texas Rule of Evidence 801(e)(2)(A) and explicitly found that it was not objectionable under Article 38.22 of the Texas Code of Criminal Procedure because the statement was spontaneously made and not made as the result of a custodial interrogation, which had ended when Cooks dozed off. I agree with the Court of Appeals' opinion and find that it's consistent with both Texas precedent (see, e.g., Ruth v. State, 167 S.W.3d 560, 571 (Tex.App.-Houston 2005), and precedent from across the country on custodial interrogations.