August 23, 2008
Why Oh, Why Oh, Why Oh?: Ohio Case Reveals That It Might Have Strictest Jury Impeachment Rules In The Nation
A recent case from Ohio reveals that it might just be the place where a jury will least likely be able to impeach its verdict. In Desai v. Franklin, 2008 WL 3009691 (Ohio App. 9 Dist 2008), Ashokkumar J. Desai and Aris W. Franklin, M.D. entered into an employment agreement whereby Desai would join Franklin's professional corporation, Diagnostic Imaging. Desai formally resigned as an employee of Diagnostic in 2000. After Desai's resignation, Desai and Franklin disagreed over the amount of money that Desai was entitled to for his percentage of the accounts receivable and deferred compensation payments that he was due under the employment agreement, and Desai alleged that Diagnostic Imaging had failed to redeem his stock as provided for in a buy-sell agreement. Desai thereafter sued Franklin claiming causes of action sounding in, inter alai, breach of fiduciary duty, unjust enrichment, and fraud. After trial, the jury awarded Desai $50,670.18 for his breach of fiduciary duty claim, $301,597.34 for his unjust enrichment claim, and $116,248.00 for his fraud claim.
After trial, Franklin, inter alia, brought a motion for judgment notwithstanding the verdict, which the trial court denied and which, on appeal, the Court of Appeals treated as a motion for a new trial. The motion claimed that there was no evidence to support the award of $116,248.00 on the cause of action for fraud and that the jury's verdict awarded Desai those damages "based on a conversation that one of the parties' attorneys had with the jury foreperson." As the court correctly noted, this allegation implicated Ohio Rule of Evidence 606(b), which states in relevant part that:
"Upon 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 that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented."
As far as I can tell, in any other jurisdiction in the country, this would mean that the jury foreperson could testify about what the attorney said to him because the attorney's statements would constitute extraneous prejudicial information and/or an improper outside influence. So, why couldn't the jury foreperson impeach the jury's verdict in Desai v. Franklin?
Well, according to the court, in Ohio:
"[s]uch evidence....is generally not admissible to impeach a jury verdict unless there is supporting evidence aliunde....Evidence aliunde is extraneous, independent evidence of alleged conduct based on the firsthand knowledge of one who is not a juror....Franklin fails to argue that any evidence aliunde exists that would impeach the jury's verdict. Consequently, the trial court did not abuse its discretion in denying Franklin's motion."
According to the Supreme Court of Ohio, one of the purposes behind this requirement is "ensuring that jurors are insulated from harassment by defeated parties." State v. Schiebel, 564 N.E.2d 54, 61 (Ohio 1990). It seems to me, though, that Ohio is splitting the baby by trading harassment by unscrupulous parties for harassment by defeated parties.
In any other jurisdiction, an unscrupulous party knows not to approach/threaten/influence a juror during trial because even if that juror stays silent throughout trial, that party is perpetually Tony Soprano at Holsten's, looking over his shoulder, fearing that the juror can come forward and impeach the jury's verdict. In Ohio, however, it's open season on the jury pool. As long as the unscrupulous party threatens/influences the juror in a private place, there is nobody besides the party and the juror with firsthand knowledge, meaning that the party can sleep like a baby after trial, knowing that Ohio's rules will keep the threatened juror silenced.
August 22, 2008
Blame The Media: Supreme Court of Utah Ignores Alleged Juror Exposure To Media Coverage In Rule 606(b) Ruling
The Supreme Court of Utah's recent opinion in Allen v. Friel, 2008 WL 3835061 (Utah 2008), contains a seemingly disastrous oversight in its (mis)application of Utah Rule of Evidence 606(b). In Friel, Paul Allen was convicted of hiring an accomplice to kill his wife. Allen later made several claims over several appeals, including the claim that the trial court erred in denying the jurors' request for transcripts of the prosecution witness' testimony. He attempted to bolster this claim through the affidavit of juror Trenton David, which stated that if the trial judge would have allowed the jurors to see the transcript of a particular prosecution witness, "it was very likely that I would have found Paul Allen innocent of all charges."
The Utah Supremes disagreed, first properly finding that the trial judge's decision to deny jurors the requested transcripts was in line with Utah Rule of Criminal Procedure 17. The court then noted that David's affidavit was inadmissible under Utah Rule of Evidence 606(b), which states in relevant part that:
"Upon 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 that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."
The court then found that David's affidavit was inadmissible under the Rule because it clearly contained "testimony about the effect a particular piece of evidence would have had on his mind during deliberation." Undoubtedly, this was the correct decision, but there remained one problem: There was more to David's affidavit.
According to the court, "Mr. David also stated that he witnessed jurors disobeying the court's instructions not to view any media coverage of the case or discuss the case during the trial. Finally, Mr. David expressed his opinion that some of the other jurors were biased prior to trial because of exposure to media coverage of the trial." Now, to the extent that the affidavit mentioned jurors discussing the case during trial, it was inadmissible because it related to matters internal to the jury deliberation process and did not relate to anything external to that process.
The allegation that jurors disobeyed the court's instructions and ostensibly viewed media coverage of the case, however, is a different matter. Such media coverage could be viewed either as extraneous prejudicial information or an improper outside influence on juror deliberations and should have formed the basis for proper jury impeachment under Rule 606(b). See, e.g., Drew v. State, 76 S.W.3d 436, 460 (Tex.App.-Houston 2002) ("Media coverage about appellant constitutes an outside influence, and Rule 606(b) thus permits a juror to testify about such."). The Supreme Court of Utah, however, didn't address this part of the affidavit, thereby leaving some seemingly very important evidence on the table.
August 21, 2008
Forgive Me Father: New Jersey Court Finds Cleric-Penitent Privilege Doesn't Apply In Child Molestation Case
In its opinion yesterday in State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. I agree with the court's conclusion but not its reasoning. In J.G., in 2000, the defendant's children reported to their mother that their father had sexually abused them. The mother then contacted her pastor, Glenford Brown, and reported the children's allegations. While the defendant knew Brown from their native Jamaica, the defendant did not attend Brown's church in New Jersey.
Believing that he had a duty to protect the wife and children, Brown arranged to meet the defendant outside Brown's townhouse. During that meeting, the defendant, "without directly saying [he] sexually molested them,...acknowledged what he did” and asked Brown, inter alia, "to counsel" him, but Brown declined because he was too angry with defendant and felt that he "needed real psychological help which [Brown] was not qualified to give." A few weeks later, the defendant went to Brown's church, where he talked with Brown and "acknowledged what he did." The defendant then asked Brown to baptize him, but Brown told the defendant he could not baptize him because Brown "thought he wanted cover for his actions" and urged the defendant to turn himself in to the police.
The defendant was subsequently charged with molesting his daughters, and he moved to preclude Brown from testifying about his confession pursuant to New Jersey Rule of Evidence 511, its cleric-penitent privilege, which states that:
"Any 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."
The trial court granted his motion, but the Appellate Division reversed, finding that its analysis was governed by its previous opinion in State v. Cary, 751 A.2d 620 (N.J.Super.A.D. 2000), where it found that to warrant protection under the cleric-penitent privilege, "a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor."
The Appellate Division then found that these elements were not satisfied because:
"(1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant-not as a spiritual advisor-but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help."
I agree with regard to the third point but disagree with regard to the first two points. I think that the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential. Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege? It seems to me that the court placed a burden on the defendant that does not exist under the law.
With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent. In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson. If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.
There is, however, an exception to this general rule, and that is why the court's third point was correct. When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995). And that's exactly what happened in J.G.. Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.
August 20, 2008
This Land Is Your Land, This Land Is My Land: Court Of Federal Claims Hears Pearl Harbor Land Dispute Despite Hearsay Claims
The Court of Federal Claims is currently hearing a case involving an interesting piece of history. In 1942 and 1943, in the wake of Pearl Harbor, government agents apparently arrived on the doorsteps of several Kentucky landowners and told them that they had to move off of their farms so that the U.S. government could build World War II training camps on them. After the war, the government later earned a windfall from coal, oil, and gas resources found under the land. According to the government, the former landowners and their heirs were not entitled to any of this money because the landowners were fairly compensated when their property was taken and not promised any future payments or right to ownership.
The owners disagreed, claiming that they were assured that they would be able to buy back their land after the war. Indeed, they claimed that they specifically negotiated this buy back provision because they knew that there was a possibility for minerals on the land (some had even sold drilling leases already) when they negotiated the deals. The only problems with these claims were that: (1) none of the landowners got anything in writing; and (2) only one of the original owners is still alive, with the case somehow still proceeding today despite the fact that it was initially brought in 1960.
Nonetheless, in April, Judge Susan Braden recommended awarding the families $34.3 million, roughly the profits the government made from selling the mineral rights to the land in the 1960s. And yesterday, as a three-judge panel considered whether her recommendation should stand, it received testimony from many of the owners' heirs despite the government's claim that this testimony was hearsay. So, how was it admissible?
Well, Federal Rule of Evidence 803(20) states that there is an exception to the rule against hearsay for statements concerning "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located." According to the Advisory Committee's Note to the Rule, "[t]rustworthiness in reputation evidence is found 'when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community's conclusion, if any has been formed, is likely to be a trustworthy one.'"
Considering the fact that this land lawsuit has been around since the 1960s, and considering the fact that it involves millions of dollars, it is easy to see why the land transfer was important to the community and likely to have been discussed in the community, making the heirs' testimony admissible and their claim likely to succeed.
August 19, 2008
(It's The) Story Of My Life: Judge Finds Biographical Screenplay Inadmissible In Dinnertime bandit Case
This April, I posted about University of Kentucky College of Law Professor Andrea Dennis' fascinating article, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007). I noted that in the article, Dennis contended that courts almost always allow for the admission of defendant-authored rap music lyrics as substantive criminal evidence. I also noted that one of her arguments against the standard thinking was that rap music lyricists are not in the category of non-fiction writers but instead are akin to fiction writers, such as novelists and screenwriters. I agreed with this argument, and now a current Connecticut case reveals the reluctance of courts to admit screenplays into evidence, even when they are (auto)biographical.
Alan Golder, also known as the "Dinnertime Bandit", is allegedly an American burglar who specialized in stealing jewelry from mansions, while their owners were inside their residences eating dinner. On November 21, 2007, after nine years on the run in Europe, Golder was escorted from Antwerp Prison to Brussels, where he was formally taken into custody by a Greenwich Connecticut Detective and two U.S. Marshals and charged with 38 felony counts and one misdemeanor, including burglary, larceny, robbery and kidnapping.
All of this sounds like it could form the basis for an interesting movie (maybe it could star John Malokovich). And indeed, William Knoedelseder has written a screenplay about Golder's life, based at least in part on Golder's input. And that screenplay could have been extremely damaging in Golder's trial on the aforementioned charges because it recounts both his burglary prowess and history of late day break-ins.
Golder's public defender Howard Ehring, however, argued that the screenplay was inadmissible because Golder's level of involvement in its creation was questionable and that it was unduly prejudicial because it was at least partially fictionalized, And apparently, the Connecticut judge hearing Golder's case agreed, ruling that the screenplay was not admissible evidence. I agree with the judge's ruling and believe that judges in cases with defendant-authored rap lyrics should reach similar conclusions.
August 18, 2008
OxyContin Blues: Seventh Circuit Finds Expert Testimony On Medical Purposes Doesn't Violate Rule 704(b)
The Seventh Circuit's recent opinion in United States v. Chube, 2008 WL 3562641 (7th Cir. 2008), contains an interesting Rule 704 ruling. Chube dealt with the DEA's launching of the "OxyContin Action Plan" to ferret out unlawful uses of the drug. Dr. David Demaret Chube II (Dr. David) and his brother Dr. Charles Randall Chube (Dr. Randy) were two of the hundreds of physicians investigated by the DEA for possible illegitimate prescribing of the drug. And that investigation yielded a conviction of Dr. Randy on one count of unlawful distribution and a conviction of Dr. David on four counts of unlawful distribution and two counts of defrauding a health benefit program.
The testimony of Dr. Theodore Parran and Dr. Robert Barkin, which was allowed only after the trial court denied the defendants' pre-trial motion in limine, was instrumental in securing these convictions. Dr. Parran evaluated 98 of the defendants' patient files and concluded that the prescribing "was not done consistent with the usual standards of medical practice" and thus was not done with a "legitimate medical purpose." Meanwhile, Dr. Barkin reviewed a smaller number of the patient files and also concluded that the prescriptions were issued "[o]utside the scope of medical practice, not for legitimate purposes." The defendants did not renew their objection to this testimony at trial, but they raised it again when appealing their convictions to the Seventh Circuit.
The Seventh Circuit first had to decided whether the defendants preserved this issue for appeal because they did not renew their objection to the testimony at trial. And the court found that they did, concluding that the trial court did not signal any willingness to reconsider its ruling during the trial. The Seventh Circuit then considered the applicable rules of evidence.
Federal Rule of Evidence 704(a) states that:
"Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
Meanwhile, Federal Rule of Evidence 704(b) states that:
"No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The Seventh Circuit noted that the government's argument was "that neither Dr. Parran nor Dr. Barkin ever claimed to know the defendants' intent, and so the opinions that they offered were not barred by Rule 704(b)." It then found that "[p]articularly since the defense raised no contemporaneous objection, we agree with this position, though we note that portions of Dr. Parran's testimony come close to a statement about the Doctors' mental state."
This finding seems unfair to me. The court acknowledged that the issue was a close call and yet decided against the defendants in large part because they failed to raise a contemporaneous objection. And yet, earlier in the opinion, the Seventh Circuit noted that the trial court denied their motion in limine and then did not signal any willingness to reconsider its ruling during the trial. I don't see the justice in finding against the defendants on a borderline issue based upon their failure to renew their objection when the court itself acknowledged that there was no reason for the defendants to renew their objection.
Furthermore, I don't think that the cases cited by the Seventh Circuit support its opinion. It first cited to United States v. Katz, 445 F.3d 1023 (8th Cir. 2006), in which the Eighth Circuit found that testimony by the same doctor who testified in Chube -- Doctor Parran -- did not violate Rule 704(b). The Seventh Circuit noted that the court in Katz was "satisfied that 'Dr. Parran did not testify regarding the subjective mental state of Dr. Katz upon writing the prescriptions charged in the indictment.'"
My response is that of course it was satisfied. As the court noted in Katz, "during cross-examination of Dr. Parran, defense counsel asked Dr. Parran on three occasions whether he was purporting to express an opinion as to what Dr. Katz might have had in his mind at the time that he wrote the prescriptions at issue in the indictment. Each time that he was asked, Dr. Parran denied doing so." As far as I can tell, however, Dr. Parran gave no similar testimony in Chube.
The other main case cited by the Seventh Circuit was its own previous opinion in United States v. Glover, 479 F.3d 511 (7th Cir. 2007). In Glover, the defendant was apprehended with a small quantity of drugs on him, and a DEA task force officer testified "that street level drug dealers typically sell very small quantities of cocaine and heroin, which can be packaged in capsules, bottle caps, corner cut baggies, or foils. [He] also observed that even small amounts of drugs, as in Glover's case, can be distributed if packaged in small enough quantities. He explained that street dealers often maintain small stashes of drugs nearby for resupply, rather than carrying all of their drugs with them. Finally, Coleman testified that firearms are common 'tools of the trade' for drug dealers."
The Seventh Circuit found that this testimony did not violate Rule 704(b), finding that:
"[W]hen a law enforcement official states an opinion about the criminal nature of a defendant's activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert's knowledge of common criminal practices, and not on some special knowledge of defendant's mental processes. Relevant in this regard, though not determinative, is the degree to which the expert refers specifically to the 'intent' of the defendant."
Again, I don't see how this case is analogous. The DEA task force officer in Glover merely testified that the defendant's possession of a small quantity of drugs could be consistent with the common practices of street level drug dealers. Conversely, the state's witnesses in Chube looked at the doctors' mental processes by considering their patient files and concluded that their prescriptions were not given for legitimate medical purposes; they did not merely claim that their prescription pattern could be consistent with a common criminal practice.
In conclusion, I'm not sure whether the Seventh Circuit's conclusion in Chube, but I am sure that I don't like the way it got to that conclusion.
August 17, 2008
In A Barbie World: Court Denies Motion For Mistrial In Bratz Lawsuit After Horribly Misguided Rule 606(b) Ruling
The lawsuit between Mattel and MGA Entertainment over the Bratz doll line has produced an interesting and horribly misguided Rule 606(b) ruling. The main issue in the trial was whether Carter Bryant, the creator of the multi-ethnic, big-headed dolls, had created the doll's characters and the name Bratz while he was under contract as a Barbie designer at Mattel. The jury found in favor of Mattel on the issue as well as on almost all of the issues in the trial, handing MGA Entertainment a defeat on par with the box office disaster that was the "Bratz" movie. The verdict has to be considered a huge victory for Mattel because the $1 billion-plus Bratz doll line franchise is the main rival to Mattel's Barbie doll line. As the case now proceeds to the damages phase of trial, we will have to see whether Mattel will win the large damages award it is seeking and/or whether MGA will be enjoined from selling Bratz dolls.
And the case is proceeding to the damages phase because the United States District Court for the Central District of California denied MGA's motion for a mistrial in Bryant v. Mattel, Inc., 2008 WL 3367605 (C.D. Cal. 2008). One of MGA's main contentions in that motion for a mistrial was that the jury's verdict was based upon prejudice rather than evidence. You see, MGA's CEO is Iranian-born Isaac Larian, and post-trial jury interviews indicated that Juror No. 8 made comments regarding Larian's ethnicity and/or national origin during deliberations. Specifically, other jurors claimed that Juror No. 8 said with regard to Persians and/or Iranians that they were "stubborn," "stole ideas," "lie," and are "rude."
Readers of this blog might wonder whether the denial of MGA's motion was based upon Federal Rule of Evidence 606(b), which states in relevant part that:
"Upon 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 that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."
In fact, Rule 606(b) did not prevent the court from considering this jury impeachment because Juror No. 8 admitted that the statements she made were based upon statements that her husband made to her during the trial, rendering them "extraneous prejudicial information."
So, why did the district court deny MGA's motion? The answer is that it did so based upon a misapplication of Rule 606(b). According to the court, when jurors receive extraneous prejudicial information, "the Ninth Circuit directs the trial court to consider the following factors to determine whether a new trial is warranted:
(1) [W]hether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.
The district court then found that a mistrial was not warranted because, inter alia, (1) the second and fourth factors supported the verdict because Juror No. 8's "remarks were made after agreement had been reached on all subjects upon which the jury ultimately reached a verdict;" and (2) the third factor supported the verdict because "there was no discussion or consideration of the substance of Juror No. 8's remarks."
Readers of this blog will note why the district court (and the Ninth Circuit) misapplied Rule 606(b). As I noted in a prior post in which a bailiff made improper comments to jurors in a case involving the San Antonio Spurs,
"[Rule 606(b)] strictly prevents a juror from testifying about 'the effect of anything on any juror's mind or emotions or mental processes.' In other words, even if jurors could testify about the bailiff's comments because they constituted an improper outside influence on the jury, those jurors could not testify about the effect of those comments; that analysis is left for the court. See, e.g., Pyles v. Johnson, 136 F.3d 986, 992 (5th Cir. 1998)....What the Court of Appeals should have done was make an objective assessment of what effect the bailiff's comments would have had on the average juror and determine whether Medistar likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information."
The same goes here. And it seems clear to me that comments disparaging Iranians when the CEO for the losing party is Iranian likely caused that party "substantial prejudice."
Furthermore, even if the court was right to consider the effect of the extraneous prejudicial information on the jury, it should have declared a mistrial. Where did the court go wrong on this count? The court considered the effect of Juror No. 8's comments on the other jurors. But what it failed to do was consider the effect of the statements made by Juror No. 8's husband on Juror No. 8. It seems clear to me that the fact that Juror No. 8 felt the need to repeat her husband's statements to the other jurors indicates that she was improperly influence by his statements, causing MGA Entertainment "substantial prejudice."
What do readers think?