November 15, 2008
Law & Order, Criminal Intent?: Second Circuit Finds Expert Drug Testimony Doesn't Violate Rule 704(b)
Recently, I wrote a post about what I regarded as an incorrect evidentiary ruling under Federal Rule of Evidence 704(b) by the Third Circuit in United States v. Farrish, 2008 WL 4672128 (3rd Cir. 2008). 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."
And in Farrish, the Third Circuit correctly noted that, notwithstanding Rule 704(b), "[i]t is well established that experts may describe, in general and factual terms, the common practices of drug dealers." I thought, however that the Third Circuit went too far in finding that an expert was not testifying about the defendant's intent and was merely testifying about the common practices of drugs dealers when he concluded that "the facts and circumstances surrounding [the defendant's] behavior were 'indicative' of someone who had the intent to deliver drugs."
Conversely, I think that the Second Circuit correctly found that such "common practice" testimony was properly admitted in its recent opinion in United States v. Lopez, 2008 WL 4831638 (2nd Cir. 2008). In Lopez, Ricardo Lopez appealed from a judgment convicting him of possession of cocaine with intent to distribute and possession of two firearms in furtherance of a drug trafficking crime.
Central to Lopez's convictions was a green bag found in the driver's side trunk of his car. The bag contained "thirteen glassines of cocaine, as well as cocaine-related paraphernalia: a scale, a strainer with cocaine residue, a wooden masher with cocaine residue, two spoons with cocaine residue, more than one hundred empty glassines, and a jar of a white powdery substance that looked like cocaine."
At trial, over Lopez's objection, the court admitted the expert testimony of Billy Ralat, an investigator at the United States Attorney's Office. According to Ralat,
"the items found in Lopez's green bag constituted 'basically a small distribution kit,' explaining that 'you have everything that you need to basically break [cocaine] down, cut it, and then rebag it for resale.' He concluded that the items were more consistent with drug distribution than personal use."
"Ralat did not testify as to Lopez's intent. Rather, he merely stated that, based on his experience as a drug investigator, the drugs and paraphernalia found in Lopez's car were more consistent with distribution than personal use. The question-whether Lopez had the requisite intent to distribute-was clearly left to Judge Stein as the trier of fact. Thus, contrary to Lopez's argument, Ralat's testimony did not run afoul of Rule 704(b)."
As I said above, I agree. Ralat's testimony was merely testimony regarding the common practices of drug dealers" while the testimony in Farrish was testimony regarding criminal intent.
November 14, 2008
The Lone Ranger and Tonto Fistfight in Heaven, Take 3: Tenth Circuit Finds Evidence Of Racial Bias During Deliberations Inadmissible
I've written two previous posts (here and here) about Kerry Dean Benally, a Native American man who was convicted of assault on a federal officer. After Benally was convicted, however, juror Karen Cano
came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that 'when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about a need to send a message to the reservation.
In what I characterized as a landmark ruling and the first of its kind by a court in the Tenth Circuit, the United States District Court for the District of Utah ordered a new trial because it found that Cano's allegations sufficiently established that "jurors had failed to answer honestly when asked about whether they had any preconceived notions about Native Americans."
My second post on the case indicated that a three judge panel of the Tenth Circuit heard the prosecution's appeal, and yesterday, the panel unfortunately reversed the district court's ruling in United States v. Benally, 2008 WL 4866618 (10th Cir. 2008). So, what was the court's reasoning?
Well, first, let's look at 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."
Now, Benally argued that the jurors' racist statements constituted extraneous prejudicial information and/or an outside improper influence, but the Tenth Circuit properly rejected those arguments. As the court noted, the exceptions in (1) and (2) cover external evidence (such as a newspaper article about a failed polygraph test finding its way to the jury) and external influences (such as the relative of a party threatening a juror); however, they do not cover "a juror who brings his own personal experiences to bear on the matter at hand."
Benally also claimed that the Tenth Circuit should imply an exception to Rule 606(b) for evidence touching on racial bias because, as the Ninth Circuit stated in dicta in United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001), such an exception would be "'consistent with the text of the rule, as well as with the broad goal of eliminating racial prejudice from the judicial system, to hold that evidence of racial bias is generally not subject to Rule 606(b)'s prohibitions against juror testimony." And, to the extent, that we are just focusing on the evidentiary issue and not its constitutional dimensions, I would also agree with the Tenth Circuit's rejection of this argument because "a court in a particular case is not the proper forum for making or enlarging exceptions to the rules of evidence."
So, why do I disagree with the Tenth Circuit? Well, let's start with the fact that, as noted above, the district court found that Cano's statements were admissible to prove that jurors lied on voir dire when they said that they had no preconceptions about Native Americans. Is such juror testimony proscribed by Federal Rule of Evidence 606(b)?
According to the Tenth Circuit, "[t]here is a split in the Circuits on this point;" however, the only case cited by the Tenth Circuit for the proposition that jury testimony is inadmissible when introduced for this purpose was the Third Circuit's opinion in Williams v. Price, 343 F.3d 223 (3rd Cir. 2003), written by now-Supreme Court Justice Samuel Alito. But Price actually didn't come to this conclusion. In Price, the defendant sought federal habeas relief, which Alito found that he could only deliver if the lower courts' decision to preclude him from introducing jury testimony to prove that jurors lied on voir dire was contrary to clearly established federal law. And because Alito found no such clearly established federal law, he could not afford the defendant relief (although, as will be noted later, he afforded the defendant relief on different grounds).
Thus, Price itself didn't reach the conclusion alleged by the Tenth Circuit, so what cases led to Justice Alito failing to find no clearly established federal law on the issue? My answer is that I have no idea. As I have indicated before on this blog, my next article addresses the very issues raised by Benally, and I have been researching the voir dire issue. And while a few state court cases such as the one leading to Williams v. Price have come to the opposite conclusion, my research has otherwise led me to agree with the conclusion of the Supreme Court of North Dakota that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b) also do not preclude evidence to show that a juror lied during voir dire." At the federal level, the Tenth Circuit would now be the one aberration.
So, why did the Tenth Circuit side with the position it attributed to the Third Circuit? Well, even though it found that Benally would not be using Cano's statements directly to inquire into the validity of the verdict, which is proscribed under Rule 606(b). the indirect purpose of using Cano's statements to prove that jurors lied on voir dire "was to support a motion to vacate the verdict, and for a new trial. That is a challenge to the validity of the verdict." The court then contrasted this situation with a contempt proceeding against a dishonest juror, in which the juror's statements during jury deliberations are admissible, notwithstanding Rule 606(b).
So, where does that leave things? Well, as I have noted before, the argument of my forthcoming article is that application of Rule 606(b) to allegations of racial/religious/other prejudice violates a criminal defendant's right to present a defense/Compulsory Process. And whether you take the broader perspective of basically all other courts or the narrower approach of the Tenth Circuit, it is clear that evidence of bias during jury deliberations is admissible in at least certain circumstances.
Significantly, the first Supreme Court case to apply the Compulsory Process Clause to a rule of evidence was Washington v. Texas, 388 U.S. 14 (1967). In that case, two Texas statutes prohibited a charged coparticipant in a crime from providing exculpatory testimony on the behalf of another coparticipant. The Supreme Court first found that these statutes violated the defendant's rights under the Compulsory Process Clause because they "prevent[ed] whole categories of defense witnesses from testifying...." Obviously, this has some resonance with Rule 606(b), which prevents a whole category of defense witnesses -- jurors -- from impeaching their verdicts through evidence of anything internal to the jury deliberation process.
As I will note in my article, however, this analogy is not perfect, but it is made more perfect by the second part of the Court's ruling, which was that "[t]he rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons...." Instead, Texas allowed acquitted coparticpants to testify on behalf of other coparticipants and allowed charged or convicted coparticipants to provide testimony for the state that incriminated other coparticipants. It seems to me that court decisions allowing jurors to disclose biased statements to prove that a juror lied during voir dire to establish contempt and, according to most courts, to achieve a new trial, means that courts can't rationally draw a line and prevent those statements from being used directly to challenge the validity of a verdict.
And, why is such a Compulsory Process Clause/right to present a defense challenge so important? Benally also argued that application of Rule 606(b) to allegations of racial bias violated his Sixth Amendment right to an impartial jury. The roadblock faced Benally on this argument was that the Supreme Court found in Tanner v. United States that application of Rule 606(b) to allegations of, inter alia, juror alcohol and drug use during trial did not violate the defendant's Sixth Amendment right to a competent jury. And while Benally argued that application of Rule 606(b) to allegations of racial bias violated his Sixth Amendment right to an impartial jury, and involved "a more serious and fundamental danger to the justice system than intoxicated jurors, the Tenth Circuit rejected the argument, and I think that many courts would do the same based on Tanner (even though I disagree).
So, why might the Compulsory Process Clause compel a different result? Well, like many courts rendering similar decisions, but without allegations of jurors lying on voir dire, the Tenth Circuit applied Rule 606(b) despite finding that "[i]t may well be true that racial prejudice is an especially odious, and especially common form of Sixth Amendment violation." As I said before, if we are looking strictly at the evidentiary issue and not its constitutional dimensions, the Tenth Circuit acted properly in strictly and technically applying the language of Rule 606(b) to preclude jury impeachment through evidence of racial bias. But, with all of these courts recognizing the elephant in the room, doesn't this seem to be a situation where courts are applying a rule of evidence "mechanistically to defeat the ends of justice," which the Court found unconstitutional in Chambers v. Mississippi, 410 U.S. 284 (1973)?
Now, when I presented my Compulsory Process Clause/right to present a defense argument at my school, my colleague Tim O'Neill asked whether a court would accept the argument because the classic Compulsory Process Clause/right to present case relates to evidence of the crime itself, not evidence of juror misconduct. This is true, but it looks to me like Williams v. Price provides the answer.
In that case, while Justice Alito awarded no federal habeas relief to the defendant based upon the lower courts' exclusion of evidence of racial bias exhibited during jury deliberations, he awarded him relief based upon the lower courts' exclusion of evidence that:
"Subsequent to the proceedings in this case...[an acquiantance of the defendant] ran into Juror Number Two (2) in the lobby of the Courthouse....Upon seeing me he stated 'All niggers do is cause trouble' I am not sure whether this was stated directly to me but it was stated for my benefit and loudly enough for me to hear and to get a rise out of me. During our confrontation he also stated 'I should go back where I came from.'"
The basis for awarding this relief was the Compulsory Process Clause/right to present a defense. And Alito did so despite finding that "[n]one of these cases [such as Washington v. Texas and Chambers v. Mississippi] clearly establishes just how far a jurisdiction may go in excluding evidence of juror misconduct." Thus, courts should be able to apply the Compulsory Process Clause/right to present a defense to cases of jury misconduct, and I think that I can prove that they should apply them to allegations of racial/religious/other bias by jurors during deliberations.
November 13, 2008
Crack House Crackdown: Federal Judge Finds Officials' Statements To Be Nonhearsay In Case Against "The Worst Mayor In America"
Some people (no, not Keith Olbermann) have referred to Mississippi Mayor Frank Melton as "The Worst Mayor in America." And now, pursuant to a ruling by a federal court judge, he may have to pay for some of his misdeeds.
Prosecutors allege that Melton and a group of young men, some with criminal records, used sledgehammers and a large stick to break apart a duplex Melton has since said was a crack house. Consequently, they charged Melton and others with violating the constitutional right against unreasonable search and seizure for Evans Welch, who was living in the duplex, and Jennifer Sutton, who owns the structure. Prosecutors also charged the men with violating those civil rights "under color of law" and committing a violent crime while possessing a handgun.
So, what was the hearsay ruling at issue? Well, apparently, prior to the crack house crackdown, Attorney General Jim Hood and Jackson Police Department officers had warned the mayor against unconstitutional searches and seizures. And while Melton’s motion called those warnings inadmissible hearsay, Judge Daniel Jordan ruled them admissible, which was very damaging to Melton because the prosecution has to show that Melton knew his actions were illegal.
So, why did Judge Jordan rule these statements admissible? Well, I would guess that he found that the statements were nonhearsay. Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In this case, however, the prosecution was seeking to use the warnings not to prove the truth of the matter asserted therein, but simply to prove that Melton was put on notice and given a duty to investigate the constitutionality of his actions. As I wrote in a recent case in which Fire Department Officials told bar patrons that their practice of setting fire to alcohol poured on the bar could seriously injure someone:
"the prosecution does not need to offer these statements to prove their substance. Instead, the prosecutor can introduce those statements merely to prove that they put Ward on notice, such that he had a duty to investigate and potentially end his bar's dangerous practice. See, e.g., Sadowsky v. Anchor Packing Co., 1996 WL 191634 at *3 (Wis.App. 1996) ("Because the exhibit was offered to show notice to Garlock, it was not shown for the truth of the matter stated within, but rather for the effect of the information on Garlock. Offered for that purpose, the exhibit would not have been hearsay."). been hearsay.").
November 12, 2008
Hard Cases Make (Not So) Bad Law: Vermont Senators Remove Controversial Recommendations From Sex Offender Plan
It is often said that hard cases make bad law, but it appears that Vermont state senators avoided this aphorism by failing to include 5 controversial recommendations in a plan that was prompted by such a hard case. 43 year-old Michael Jacques is charged with the rape and killing of 12-year-old Brooke Bennett, his niece. And while he had been indicted by a federal grand jury and could face the death penalty, "[m]any Vermonters, including Gov. James Douglas and Lt. Gov. Brian Dubie, clamored for the Legislature to pass additional measures to protect children from sexual predators following Bennett's death."
This clamor led the Senate Judiciary Committee to draft a 34-point plan, which it will hand over to Senate President Pro Tem Peter Shumlin in Montpelier today. Among the points in the plan is a new charge — aggravated sexual assault on a child under 16 — that would allow prosecutors to seek a mandatory 25-year minimum sentence at their discretion.
Among the points not included, however, are 5 controversial recommendations:
-reinstating the death penalty, which was proscribed in the Vermont in 1964;
-requiring civil commitments for violent sex offenders at the end of their prison sentences;
-an enhanced judicial accountability measure that would allow the General Assembly to vote by roll call when voting to retain judges;
-complying with the Adam Walsh Act of 2005; and
-allowing a defendant's prior bad acts to be accessible to law enforcement and admissible in court.
My colleague Corey Yung is better suited to address these first 4 points over at Sex Crimes, but I will address the last point. At least with regard to the admissibility of evidence of a defendant's prior bad acts, the point that was not included would have brought Vermont in line with the much despised Federal Rules of Evidence 413-415.
Basically, for every other type of accused, we don't allow evidence of their prior bad acts to prove that they have a propensity to act in a certain matter and that they likely acted in conformity with that propensity by committing the subject crime. Thus, evidence that a man charged with robbing a bank previously robbed another bank would be inadmissible because its probative value relies on the aphorism, "Once a bank robber, always a bank robber."
Enacted in the 1990s, however, to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-415 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender." As, I said above, hard cases make bad law, but is nice to see that, at least for now, Vermont senators avoided the same trap that caught their D.C. counterparts.
November 11, 2008
Can't Stop The Music, Take 2: Supreme Court Denies Cert In Victim Impact Statement Cases
Last December, I posted an entry about a case in which a jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon. And during the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotaped victim impact statement with a montage of photographs of Sara Weir's life, narrated by her mother. On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial.
One of the grounds for his appeal was that the videotape should have been excluded because it was accompanied by Enya music. The Supreme Court of California attempted to distinguish previous cases where courts had found that videotaped victim impact statements accompanied by music from the Beatles, James Taylor, and Celine Dion were or should have been deemed inadmissible. According to the Court, a rational line could be drawn because Beatles and James Taylor music is "stirring" and could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents" while the Enya music in the video in Kelly's case was "generally soft, not stirring," with most of the words unrecognizable.
Then, this September, I posted a second entry, this one about Kelly filing a petition for writ of certiorari to the Supreme Court. As I noted,
In that petition, he has claimed that "courts have 'held the line' against the introduction of tapes containing both background music and extensive video footage or collections of photographs....The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. 'The quickest way to a person’s brain is through his eye,' Copland wrote, 'but even in the movies the quickest way to his heart and feelings is still through the ear.' The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape."
Well, yesterday, the Supreme Court denied cert in Kelly's case, Kelly v. California, as well as in the similar case, Zamudio v. California. While four justices were needed, only three, Breyer, Souter, and Stevens, favored review.
Stevens issued a dissent, which was unsurprising because he had previously dissented in Payne v. Tennessee, 501 U.S. 808 (1991), the case which overruled Booth v. Maryland, 492 U.S. 496 (1987). According to Booth, victim impact statements were per se inadmissible; according to Payne, the Eighth Amendment does not place a per se bar on admitting victim impact statements in the sentencing phase of capital murder trials, but, "[i]f, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment."
In his dissent to the denial of cert, Stevens noted:
"I remain convimced that the views expressed in my dissent in Payne are sound, and that the per se rule announced in Booth is both wiser and more faithful to the rule of law than the untethered jurisprudence that has emerged over the past two decades."
Furthermore, Stevens found that:
"even under the rule announced in Payne, the prosecution's ability to admit such powerful and prejudicial evidence is not boundless. These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne. In their form, length, and scope, they vastly exceed the 'quick glimpse' the Court's majority contemplated when it overruled Booth in 1991. At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence. Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."
Breyer largely agreed with this last portion of Stevens' opinion, finding that:
"the film's personal, emotional, and artistic attributes themselves create the legal problem. They render the film's purely emotional impact strong, perhaps unusually so. That emotional impact is driven in part by the music, the mother's voiceover, and the use of scenes without victim or family (for example, the film concludes with a clip of wild horses running free)....I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area. And in my view, the Court should grant certiorari and consider these cases in an effort to do so."
I have to agree with Breyer and at least the latter part of Stevens' dissent (I'm not sure about Booth's per se rule). Right now, there is almost no guidance given to judges in deciding whether victim impact statements violate the Due Process Clause. Instead, what we are left with is judge as music critic, with the judge in Kelly's case somehow being able to conclude that a victim impact statement accompanied by Enya music is permissible even where those accompanied by the music of Celine Dion, the Beatles, and James Taylor were not. So, what do readers think? And in reaching a conclusion, you might want to view the victim impact statement from Kelly's case, which the Supreme Court has posted here.
November 10, 2008
Serenity In Manslaughter?: Connecticut Court's Slayer Statute Ruling Contingent Upon Excited Utterance Ruling
A fascinating Connecticut case could lead to an interesting opinion about the scope of Connecticut's "slayer statute," but only if a wife's appeal of a seemingly erroneous evidentiary ruling is unsuccessful.
Mary Ann Langley was charged with murdering her husband by throwing gasoline on him and lighting a match inside their home; her supposed motive was his infidelity. Langley's attorney claimed, however, that the fire started accidentally and that the husband was “delusional” due to his unregulated diabetes when he claimed that his wife set him afire. And the jury apparently split the difference, finding Langley guilty last month of first-degree manslaughter.
For trusts and estates buffs, this raises the issue of whether Langley can inherit money and/or property from her deceased husband. And, like 41 other states, Connecticut has a "slayer statute," which bars people from inheriting money or property from someone they are convicted of killing. But what type of conviction is sufficient? Under Connecticut's statute, a murder conviction is sufficient, but the statute does not explicitly mention manslaughter convictions, and an article on the case indicates that the issue of whether a manslaughter conviction triggers Connecticut's statute is an issue of first impression.
Certainly, this is an intriguing issue, but it's also one I don't think that a court will have to address, at least if an article about the case is accurate. According to that article, Langley has appealed her manslaughter conviction, with her attorney, Stephan Seeger being "particularly upset about [about] the court’s use of the excited utterance hearsay exception, which allowed testimony as to comments [the husband] made to his niece and nephew just after the fire," but before he died from complications from the fire 12 days later. Apparently, the husband first said, "I don’t know, I woke up and I was on fire," but then later said, "I know what happened; your aunt did this to me." "That evidence was very damaging to our case," said Seeger. "People don’t see real things in their sleep. Allowing that evidence in completely misses the mark of the excited utterance exception."
So, why do I think that this appeal will be successful? Well, like any lay witness at trial, a hearsay declarant must have personal knowledge of an event before his statements can be received in court. And here, it clearly appears that the husband was sleeping when he was doused with gasoline and merely guessed that his wife was the perpetrator.
Indeed, the facts of this case are the converse of the classic case of Shepard v. United States, 290 U.S. 96 (1933), where a wife told a nurse that her doctor-husband poisoned her because he had fallen in love with another woman. After the Court found that the wife's statements did not qualify as a dying declaration, it noted in dicta that even if it did so qualify, it likely would have failed the personal knowledge test. According to the Court, "[t]o let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to the acts that are declared." It seemed apparent in Shepard that the wife was merely guessing that her husband poisoned her, and it seems clear to me that the husband merely guessed that his wife set him on fire. I would thus expect Langley's manslaughter conviction to be reversed.
November 9, 2008
Drug Of Choice: New Jersey Judge Finds Ecstacy Evidence Admissible In Vehicular Homicide Case
Back in September, Damian D'Aleo caught a big break in his upcoming trial on counts of vehicular homicide, vehicular assault, and three counts of aggravated manslaughter based upon a car crash that killed three motorists on Route 80 in New Jersey. Last week, he wasn't as lucky.
On September 26, 2006, D'Aleo allegedly set off the crash by rear-ending a Jeep Cherokee while both cars were going 70 mph. According to authorities, the Jeep hurtled across the median into the eastbound lanes, striking a Chrysler PT Cruiser and then a Chevrolet Cavalier. And if convicted, D'Aleo could become very familiar with the four walls of a prison cell as each aggravated manslaughter count carries a maximum punishment of 30 years incarceration.
At first, it appeared that the state would have an open and shut case against D'Aleo. He apparently admitted to police officers after the accident that he had ingested beer and taken Ecstasy and cocaine, and Superior Court Judge Salem Ahto found that these statements would be admissible against D'Aleo at trial. And the forensic evidence seemed to corroborate these confessions as D'Aleo's blood alcohol level was apparently .09 percent, above the legal limit of .08 percent, and cocaine metabolites and traces of Ecstacy were found in his system
Subsequently, however, a question arose as to when, not if, D'Aleo took the drugs. D'Aleo claimed that he took the cocaine the night before the crash, and the state's toxicology expert John Brick testified that any cocaine D'Aleo took the night before would not have had any bearing on the crash. Based upon this testimony, Judge Ahto barred at upcoming all references to cocaine and the interplay between cocaine and alcohol at D'Aleo's impeding trial.
D'Aleo made a similar argument with respect to the Ecstacy, but if he was hoping for similarly favorable testimony from Brick, that hope was a train in vain. Brick indicated last week that he believed that it was more likely than not that D'Aleo took the Ecstacy the day of the crash and that the drug intensified the alcohol's effect. Accordingly, Ahto ruled that Brick can opine that the ecstasy exacerbated the effects of alcohol, adding to D'Aleo's impairment, at D'Aleo's impending trial. Based upon this ruling, when analyzing D'Aleo's likelihood of prevailing at trial, my conclusion would be that slim just left town