EvidenceProf Blog

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

Tuesday, October 6, 2009

Stupid Human Tricks: Halderman's Attorney Claims Evidence Of David Letterman's Sexual Harrassment Will Be Admissible At His Client's Attempted Grand Larceny Trial

I'm sure that by now most readers have heard about the alleged attempt by longtime 48 Hours Mystery producer Robert "Joe" Halderman to extort money from David Letterman. Basically, the state contends that the extortion began with Halderman "dropping off, in Letterman's limousine, a purported screenplay outline about a talk-show host who is brought down by an affair, as well as copies of sections of [Stephanie] Birkitt's diaries." And the state contends that it ended with Letterman giving Halderman a fake $2 million check at the behest of the Manhattan D.A.'s office and Halderman being busted when he tried to deposit the check at the bank. Halderman was subsequent charged with attempted grand larceny in the first degree under New York Penal Law Sections 110 and 155.42. Now, Halderman's attorney, Gerald Shargel, claims that he has evidence of Letterman's sexual harassment of his staff members, which he plans to "shar[e] in the courtroom," and some attorneys claim that the evidence could indeed be admissible. I don't see how.

Let's start with the basics. Halderman is charged with attempted grand larceny in the first degree. New York Penal Law Section 155.42 states that

A person is guilty of grand larceny in the first degree when he steals property and when the value of the property exceeds one million dollars.

Meanwhile, New York Penal Law Section 110 states that

A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.

In other words, because Halderman allegedly intended to extort $2 million from Letterman and engaged in conduct which tended to effect the commission of that crime but was ultimately unsuccessful (because of the fake check), he was charged with attempted grand larceny in the first degree. Of course, it is specifically alleged that Halderman engaged in attempted extortion, which calls into question his state of mind. As the Supreme Court of New York, New York County noted in People v. Kacer, 448 N.Y.S.2d 1002, 1007 (N.Y.Sup. 1982 1982),

It is the state of mind coupled with the actions of the defendant which are significant. To require that a defendant must actually achieve his criminal aim would be to undercut the usefulness of the attempt statute, dealing as it does with criminal enterprises before they reach fruition....The actual causing of fear in the mind of the victim should not be a required element of the crime of attempted extortion.

So, evidence reflecting on Halderman's state of mind/intent is thus relevant and could be admissible. For instance, if Halderman made statements indicating that he did not have the intent to commit extortion, he could be able to admit them to prove his innocent state of mind. But see United States v. Persico, 853 F.2d 134, 136 (2nd Cir. 1988) (noting that a federal district court in New York in an extortion case rejected defense counsel's theory that a conversation involving the defendant was admissible under the state of mind exception to the rule against hearsay to prove the defendant's innocent state of mind). Moreover, the prosecution could present evidence of the state of mind of the victim -- Letterman -- to prove its case. See, e.g., People v. Ealey, 710 N.Y.S.2d 321, 322-23 (N.Y.A.D. 1 Dept. 2000) ("The court properly received evidence that the two victims in the instant case were aware of defendant's prior extortion of another person, in order to establish the victims' states of mind with respect to defendant's extortionate acts."). 

Shargel's claim, though, seems strange to me. He claims that he has evidence that Letterman engaged in sexual harassment of staff members and that he can introduce it because it is relevant to Halderman's state of mind. Moreover, according to an article on the case
Some criminal lawyers said Monday that issue would likely be fought over before a trial, and a judge could rule the specifics of Mr. Letterman’s behavior irrelevant to the charge of extortion. But the lawyers also said that the risk that such details could be brought out in court might be enough to compel Mr. Letterman to ask the district attorney to look for ways to avoid a trial.

“It could foreseeably be admissible,” said Gerald Lefcourt, a defense attorney with experience with both criminal and celebrity cases. He said the court could decide to hear the defendant’s explanation that he intended to write a true story in a screenplay and went to Mr. Letterman to see if he would pay to avoid that.
Now, I see Lefcourt's point, but I don't see how evidence of Letterman's alleged sexual harassment would fit into Halderman's proposed explanation of his behavior. The key question seems to me to be how Halderman approached Letterman with his information and how Letterman ended up giving him $2 million. Whether Halderman approached Letterman with information about sexual contact between Letterman and his staff members or sexual harassment between Letterman and his staff member seems irrelevant. It is how Halderman used that information that is relevant.



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