EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, December 13, 2008

Mississippi Confidential: Supreme Court Of Mississippi Finds Patient's Threats To Judges Not Covered By Psychotherapist-Patient Privilege

As was noted by the Supreme Court of Mississippi in its recent opinion in Hearn v. State, 2008 WL 5173879 (Miss. 2008), for the psychotherapist-patient privilege to apply, it must have been the patient's intent that his statements to his psychotherapist be kept confidential. 

In Hearn, Michael Henry Hearn was convicted on two counts of intimidating a judge.  And the judges whom he allegedly intimidated were Judge Larry E. Roberts, who was the judge in an aggravated assault trial against Hearn and who also disposed of drug-related charges against him, and Judge Robert Bailey, who substituted for Judge Roberts at a plea hearing on those drug-related charges against Hearn.   

Around the same time that Hearn filed for post-conviction relief in connection with his aggravated assault conviction, he began sending to the judges a string of letters that "were mostly incoherent, and laden with obscene language and biblical references."  Neither judge gave these letters much consideration until Judge Roberts received a disturbing letter from Dr. Tom Moore, a psychologist at East Mississippi Correctional Facility (where Hearn was housed), which stated that:

     "I was instructed to evaluate [Hearn's] mental status following repeated threats to harm (kill) [Judge Roberts and Judge Bailey]....His release date is 12/26/05, after which he asserts that he plans to carry out his threats to harm.

     I met with [Hearn] on 7/29/04 for approximately one hour. During that initial session he reported that he would carry out his threats to harm the two judges whom he feels unjustly incarcerated him for 'the stabbing incident...where I was just trying to defend myself.' The inmate perceives that he is '..justified, 'out of love..,' [sic] to correct the injustice. He is willing (“eager”) to risk incarceration again to complete his goal. On 8/13/04 the inmate approached the undersigned in the hall to question whether this letter was sent to the two judges. He again verbalized vehemently his intentions to do harm.

     The medical and mental health personnel have mixed judgments regarding whether the inmate is serious about following through with his intentions to harm. There is a consensus, however, that he is more than capable of causing harm.

     There is enough evidence based upon diagnosis and presenting behaviors that the inmate presents a threat to the judges in question...."

This letter was then essential to Hearn's conviction on two counts of intimidating a judge and played a large role in his appeal.  According to Hearn, his statements to Dr. Moore were covered by Mississippi Rule of Evidence 503(b), its psychotherapist-patient privilege, which states in relevant part that

     "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing...confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition...."

The Supreme Court of Mississippi, however, first found that Dr. Moore could disclose Hearn's statements to him pursuant to Mississippi Code Annotated Section 41-21- 97, which states in relevant part that

     "[H]ospital records of and information pertaining to patients at treatment facilities or patients being treated by...psychologists...shall be released...when the patient has communicated to the treating... psychologist...an actual threat of physical violence against a clearly identified or reasonably identifiable potential victim or victims, and then the treating...psychologist...may communicate the threat only to the potential victim or victims, a law enforcement agency, or the parent or guardian of a minor who is identified as a potential victim."

The Court, however, further found that it did not even need to rely upon this Section because Mississippi Rule of Evidence 503(b)

     "protects only confidential communications which are not intended to be disclosed to third parties....Hearn asked Dr. Moore in the hallway whether the two judges had been warned. When Dr. Moore said that he had done so, Hearn approved. By intending to disclose his communications to a third party, Hearn waived any and all rights under the psychotherapist-patient privilege."

This seems like the correct conclusion to me.  It appears clear that Hearn wanted Dr. Moore to communicate his threats to the judges, meaning that Hearn did not intend for the threats to be confidential and thus that they were not protected by the psychotherapist-patient privilege,


December 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2008

Judiciary Under The Influence, Take 3: New Jersey Faces Observation Period Problems With Alcotest

I've written two previous posts (here and here) about the New Jersey controversy over its Breathalyzer alternative, the Alcotest 7110 MK III-C, a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing.  Without rehashing that controversy, I think that it is enough to say that

     -the Supreme Court of New Jersey had questions about the reliability of that test;

     -appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

     -Judge King initially reported that the technology was unreliable in a 268 page report;

     -Judge King later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer; and

     -the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

At the time of those posts, I mused whether the court was acting based upon actually thinking that the test is reliable or whether it was a "judiciary under the influence" because 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible.

Even assuming propriety by the Court, however, do we have practicality?  I didn't report on the case of New Jersey Judge Peter Toursison at the time, but I now present to you abbreviated facts of what he did during the twenty minute observation period that has to precede the administration of the Alcotest:

     "Tourison attempted to apply Chapstick to his lips, which delayed the Alcotest. According to protocol for operating the device, nothing can be in or around a driver's mouth for 20 minutes before the test is administered. When the police took the Chapstick away, Tourison produced and used another tube before it, too, was confiscated.

     Then, when a patrolman turned his back, Tourison placed a penny in his mouth. It's a common ploy, says Herbert Leckie, of DWI Consultants in Lebanon, N.J., who trains lawyers and police on Alcotest operation. While the penny won't affect the test, the presence of an object in a suspect's mouth may show the officer didn't perform a proper oral inspection, thus fouling the testing process."

Now, Judge Tourison did later plead guilty to DWI, but Plainfield Police Officer Rodney Sanders may be luckier.  Sanders claimed that after North Plainfield Officer Robert DeJesus pulled him over for suspected DWI, he failed to comply with the 20 minute observational period because he only had him perform two field sobriety tests.  Meanwhile, (in addition to insisting that he kept an eye on Sanders for 24 minutes, making sure he did not burp, regurgitate or go to the bathroom in that time period), DeJesus has claimed that he only administered two field sobriety tests "to save Sanders the embarrassment, knowing Sanders was a policeman who had served longer than he."

It seems to me that when you potentially have problems with your breath alcohol test based upon pennies, chapstick, and deferential police officers, you don't have a very good test, and I wonder whether the Court might eventually changed his mind if some similar problems become evident.


December 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2008

Good Habit?: 2nd Circuit Finds That Magistrate Judge Properly Considered Attorney Habit Evidence In Habeas Appeal

As is evident from the recent opinion of the Second Circuit in Carrion v. Smith, 2008 WL 5120120 (2nd Cir. 2008), if you are an attorney trying to defend a malpractice lawsuit, you might very well want and be able to rely upon habit evidence.

In Carrion, a New York grand jury charged Carlos Carrion with conspiracy in the second degree, criminal possession of a controlled substance, twenty counts of attempted murder, criminal use of a firearm, two counts of criminal possession of a weapon, and reckless endangerment.  And the minimum sentence for the drug possession charge alone was fifteen years to life imprisonment

The state offered Carrion a plea deal, pursuant to which, Carrion would plead guilty to criminal possession of a controlled substance in the second degree in exchange for an indeterminate sentence of ten years to life imprisonment on the condition that Carrion allocute to all of the crimes charged in the indictment. Carrion declined the offer and proceeded to trial, after which the jury found him guilty of criminal possession of a controlled substance in the first degree, five counts of attempted murder in the first degree, criminal use of a firearm in the first degree, two counts of criminal possession of a weapon in the third degree, and reckless endangerment in the first degree.  Carrion was subsequently sentenced to an aggregate indeterminate prison term of 125 years to life.

Carrion later filed a petition for a writ of habeas corpus, arguing, inter alia, that he was denied effective assistance of trial counsel because his lawyer failed fully to inform and advise him about the pretrial plea offer.  Carrion claimed that his trial counsel's representation was insufficient in connection with the plea offer in two respects: (1) counsel failed to advise Carrion of his maximum sentencing exposure, and (2) counsel did not urge Carrion to accept the proffered plea bargain.

Magistrate Judge Maas thereafter held a hearing on the habeas petition, after which he issued a report and recommendation recommending that Carrion's habeas petition be denied on the merits.  And Judge Maas did so despite Carrion's trial counsel, Roy Kulcsar, not remembering much about his representation of Carrion because Kulcsar claimed that it was his established practice to discuss with clients "any aspects relating to sentencing."

Thereafter, District Judge Scheindlin issued an opinion stating that she "disagree[d] with the conclusions reached by the Magistrate Judge regarding the effectiveness of Kulcsar's representation," and granting Carrion's habeas corpus petition. Judge Scheindlin held that "[t]he appropriate remedy here is to give Carrion the benefit of the original plea offer and re-sentence him accordingly."

The Second Circuit, however, disagreed and thus vacated the district court's order and remanded for further proceedings.  And one of its reasons for doing so was that it was concerned because:

     "Judge Scheindlin suggests that she has rejected Judge Maas's conclusion that Kulcsar warned Carrion about his sentencing exposure in part because Judge Maas relied on Kulcsar's testimony of his 'established practice.'  We see no error in Judge Maas's reliance on Kulcsar's testimony concerning his usual practice, particularly in light of the fact that Kulcsar was being asked to remember events that occurred over twelve years earlier. As we have said, '[t]ime inevitably fogs the memory of busy attorneys. That inevitability does not reverse the Strickland presumption of effective performance....'  Indeed, the Federal Rules of Evidence allow habit evidence to be used 'to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice,' Fed.R.Evid. 406, and courts have relied on such evidence in habeas corpus proceedings to find effective assistance of counsel....Thus, while neither Judge Maas nor Judge Scheindlin was required to conclude from Kulcsar's testimony of his usual practice that Kulcsar advised Carrion of his sentencing exposure, it was permissible for either of them to do so."

Frankly, I'm not sure that most attorneys discuss the plea bargaining process with enough frequency and regularity for them to rely upon Rule 406 and I'm not sure whether courts have applied the Rule outside of the habeas context.  But I would be interested to research the issue some more and see if judges have addressed the issue with more detail.


December 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2008

Unhappily Ever After: Criminal Contempt Order Issued Against Minnesota Wife For Refusing To Testify Against Her Husband

In Minnesota, a wife has refused to testify against her husband and now will face a criminal contempt order, that is, if the authorities can find her.  I can't see, however, how the court could require her to testify.

Robert Briard, a prominent hog farmer in Minnesota, was charged in January 2007 with a half-dozen counts of criminal sexual conduct.  Part of what instigated those charges was the fact that Robert's wife, Virginia, gave a statement to sheriff’s investigators on Oct. 25, 2006, allegedly saying that her husband made certain admissions to her regarding the accusations against him.

After the charges were brought, and as trial approached, Robert sought to preclude Virginia from testifying against him, but the judge rejected his argument that Virginia's testimony would be covered by Minnesota's spousal privilege.  Thereafter, Virginia was served with a few subpoenas to testify at Robert's trial, but she has failed to respond and instead "has apparently gone underground," prompting the criminal contempt order.

And I don't see how any of this is proper.  Pursuant to Minnesota's spousal privilege, Minnesota Statutes 595.02(a),

     "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage. This exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other or against a child of either or against a child under the care of either spouse, nor to a criminal action or proceeding in which one is charged with homicide or an attempt to commit homicide and the date of the marriage of the defendant is subsequent to the date of the offense, nor to an action or proceeding for nonsupport, neglect, dependency, or termination of parental rights."

In other words, unless the articles on Robert's case are omitting some material facts, Robert should have been able to prevent Virginia from testifying against him under Minnesota's spousal privilege.  The only thing I can think is that, despite the absence of any such mention in the articles on the case, one of the charges against Robert is for criminal sexual assault against Virginia, the couple's children, or children in their care.  But in the absence of such a fact, I don't see how Virginia would be able to testify against her husband.

[EDIT:  As the comment below indicates, Robert IS apparently charged with a crime against an immediate family member, which, pursuant to the exception contained in Minnesota Statutes 595.02(a), would explain why the privilege is inapplicable.].


December 10, 2008 | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 9, 2008

I'm Incomplete: Court Of Appeals Of North Carolina Rejects Defendant's Broad Reading Of the Rule Of Completeness

In its recent opinion in State v. Hall, 2008 WL 5055724 (N.C.App. 2008), I think that the Court of Appeals of North Carolina correctly rejected the defendant's rule of completeness argument.

In Hall, the Keith Lavoris Hall was convicted of "robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, two counts of first-degree murder, both on the basis of malice, premeditation, and deliberation, as well as under the felony murder rule, and two counts of first-degree murder, only under the felony murder rule."

And some of the evidence used to convict him were photocopied portions of letters Hall wrote to his girlfriend, Crystal Goins, while he was in custody.  For instance, in one of the letters read into evidence at trial, Hall wrote to Goins,

     "I have two out-of-town lawyers.... They told me that they didn't have no evidence on me, only evidence they have is your statements. I never wrote a statement. You don't-didn't suppose to write-you didn't suppose to write one without your lawyer being there. Your lawyer knows that, so he should be able to get them destroyed if you tell them you[ ] was high or [f---ed] up on pills or something. My lawyer also told me you was going to testify against me on trial. Don't do that. Let me ride my own. I'm a thug, a G-unit soldier, and you is still part of my team. Crystal, you know I love you."

So, why were only portions of these letters introduced at trial?  Well, apparently, only portions of these letters were photocopied before they were mailed to Goins.  And their admission partially prompted Hall's appeal.

According to Hall, North Carolina Rule of Evidence 106, North Carolina's rule of completeness, "required the State to present all of the letters that defendant [he] to Goins, not just the portion of the letters that had been photocopied before the letters were mailed."  According to Rule 106,

     "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."

So, why did the Court of Appeals of North Carolina reject Hall's argument.  Well, Hall did not present any evidence that the excluded portions of the letters ought in fairness be considered contemporaneously with the admitted portions and instead argued that he could not make such an offer of proof because he did not have access to the letters.  In essence, then, Hall asked the court "to adopt a per se rule of exclusion in situations where only portions of a written or recorded statement are available." 

The court rejected this invitation, concluding that there was

     "no evidence that the excluded portions of defendants' letters to Goins have been destroyed. Given that defendant wrote the letters at issue, he was in the best position to know whether the excluded parts of the letters would have been either explanatory or relevant. To the extent that they would have aided in his defense, defendant had a duty to obtain those letters from Goins during discovery and contemporaneously seek to introduce the excluded portions at trial." 

This seems like the correct conclusion to me because it was Hall himself who wrote the letters.  I wonder, though, how the court would have ruled if it were someone else who wrote the letters.


December 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2008

Checkmate: Florida Case Holds That Central Florida's Disciplinary Rules Don't Confer On Students The Right To Question Witnesses In Disciplinary Hearings

The recent opinion of the District Court of Appeal of Florida, Fifth District, in Heiken v. University of Central Florida, 2008 WL 5100317 (Fla.App. 5 Dist. 2008), draws a distinction I can't quite endorse.  Unfortunately, the opinion in Heiken is taciturn with regard to specifics, but it does tell us that Paul Heiken was disciplined after a disciplinary hearing at which an unsworn police report with hearsay allegations was admitted into evidence against him without the hearsay declarants appearing as witnesses.

Heiken subsequently appealed, claiming that admission of this hearsay evidence was improper under Florida Evidence Code Section 90.802.  The court, however, found this argument to be without merit, citing several cases for the propositions that the rules of evidence do not apply to school disciplinary proceedings and that school disciplinary proceedings that afford students notice and the opportunity to be heard comport with due process requirements.  And on this front, I don't feel like I know enough about the facts of the disciplinary proceeding to agree or disagree with this conclusion.

But I feel better situated to analyze Heiken's second ground for appeal, which was that Central Florida violated its own rules.  According to those rules, at a disciplinary hearing, a "student may hear and question adverse witnesses who testify at the hearing."  And according to Heiken, the District Court of Appeal of Florida, Second District, had found that the University of South Florida violated its similar rules, and a student's right to due process, based upon similar facts.

In that case, Morfit v. University of South Florida, 794 So.2d 655 (Fl.App. 2 Dist. 2001), a student was also disciplined after a disciplinary hearing at which a security officer's report with hearsay allegations was admitted into evidence against him without the hearsay declarants appearing as witnesses.  And according to South Florida's rules, at a disciplinary hearing

     "The student may hear and question adverse witnesses, except in cases of violent misconduct where the student may submit questions to the hearing officer for use in questioning adverse witnesses."

According to the Second District, those rules gave

     "the student the right to question witnesses....Morfit was entitled to have the witnesses make their statements directly to the hearing officer, and he was entitled to question them....[T]he school's own code guaranteed Morfit this right. We must conclude that the school denied Morfit his right to due process, and, therefore, this decision must be reversed."

So, why did the Fifth District find that Central Florida did not similarly violate its rules in Heiken's disciplinary proceeding?  According to the court,

     "the language in [Central Florida]'s student conduct code is less broad. It provides that the “student may hear and question adverse witnesses who testify at the hearing.” (Emphasis added). We interpret this phrase to permit cross-examination only of those witnesses who are actually called at the hearing. Unlike the situation in Morfit, therefore, [Central Florida] did not violate its rule by using the report."

Frankly, I don't see how either set of rules gives students the right to question witnesses, but I also don't see how a rule giving students the right to "hear and question adverse witnesses" confers such a right while a rule giving students the right to "hear and question adverse witnesses who testify at the hearing" does not.  That is why I can't quite endorse the Fifth Circuit's distinction.  And the reason I merely say that I can't quite endorse the distinction is that I asked my wife about the distinction, and she said it made perfect sense to her.  And to that, I would respond, "You may be right, I may be crazy."


December 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 7, 2008

Mommie Dearest: Mother Goes Undercover To Uncover Juror Misconduct In Her Son's Murder Trial

I have seen some strange jury impeachment cases on this blog and while preparing an article on the subject.  One of those cases involved what I regarded as the judge's "horribly misguided" denial of a motion for a mistrial despite evidence of juror slurs against Iranians in the lawsuit between Mattel and MGA Entertainment over the Bratz doll line.  And assuming that I was right, it was a million(s) dollar mistake as MGA has now been banned from making and selling its pouty-lipped and hugely popular Bratz doll line.

A recent case involving an "undercover mother," though, has to take the cake.  In that case, John Guica was convicted of the 2003 murder of Mark Fisher, a 19-year-old college student from Andover, N.J., who had gone to an after-hours party Guica hosted in Brooklyn. The conviction nearly gave John's mother, Doreen, a nervous breakdown, and she eventually hatched a plan to begin spying on jurors to see if she could uncover any misconduct.

Specifically, she slimmed down, got a blonde dye job, fake tan, and sexy wardrobe, rented an apartment near the apartment of former juror Jason Allo, and printed business cards with her assumed name: Dee Quinn, a recent West Coast transplant.  And what did her husband think of this behavior?  Well, he initially thought that she was crazy but eventually backed down.

Thereafter, Doreen struck paydirt as she orchestrated a chance meeting with Allo on the street, pretending to be a lonely single woman from California and giving him her phone number.  Over the next 7-8 months, the two drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.

While there was flirting between the two, both agree that the flirting never went any further.  But that's not what Doreen was after.  She was after juror misconduct, and she was able to record Jason saying that, before trial,

he didn't know [John] Giuca directly, but used to hang out in his clique and heard rumors about the Fisher slaying — something he failed to mention when questioned under oath during jury selection. Asked if he had been curious about newspaper accounts of the trial [during trial], he responded that he'd read them. He also bragged that he had been the first one during deliberations to vote for a conviction."

So, can mom's recording be used in court to attempt to get her son's conviction tossed out?  And my answer is that it likely can, in part.

Fist of all, part of Allo's statement indicated that he concealed his knowledge of the case during voir dire, meaning that the recording should be admissible to determine whether there was indeed concealment and enough prejudice to justify reversal. See, e.g., People v. West, 772 N.Y.S.2d 166, 168 (N.Y.A.D. 4 Dept. 2004).

But, what about the part where Allo admitted to reading newspaper accounts of the trial during trial?   

Federal Rule of Evidence 606(b) 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. But a juror may testify on the question about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) or 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."

And "[a]lthough New York has not adopted a statute similar to Rule 606(b), [New York] state common law 'is consonant with its underlying principles....'" People v. Brandon, 785 N.Y.S.2d 286, 288 (N.Y.City Crim.Ct. 2004).

Well, as I have noted before, newspaper accounts of trial are extraneous prejudicial information and thus form the proper predicate for jury impeachment.  Thus, this portion of the recording should also be admissible.

Conversely, as I have also previously noted, "[Rule 606(b)] strictly prevents a juror from testifying about 'the effect of anything on any juror's mind or emotions or mental processes.'"  Thus, the portion of the recording where Allo bragged that he had been the first one during deliberations to vote for a conviction will likely be deemed inadmissible.

(Hat tip to my student Lindsey Shapiro)


December 7, 2008 | Permalink | Comments (1) | TrackBack (0)