EvidenceProf Blog

News To Me: Aggravated Robbery Appeal Reveals That Texas Does Not Allow For Jury Impeachment Based Upon Extraneous Prejudicial Information

The recent opinion of the Court of Appeals of Texas in Cox v. State, 2009 WL 692606 (Tex.App.-Tyler 2009), reveals that, unlike Federal Rule of Evidence 606(b), Texas Rule of Evidence 606(b) does not permit jurors to impeach their verdicts through allegations that extraneous prejudicial information tainted the deliberation process. And, as Cox makes clear, the consequence of this difference is that jurors cannot impeach their verdicts through allegations that their verdict was based upon a prejudicial newspaper story rather than the evidence presented at trial.

In Cox, Jeremy Shane Cox appealed from his conviction for the offense of aggravated robbery. According to Cox, he deserved a new trial because, inter alia, 

-a juror slept through deliberations;

-a juror read a newspaper article, read it a second time to other jurors, and then discussed it while in the jury room;

-jurors reached a decision "based on personal feelings;" and

-a juror "as[ked] to be told how to vote."  

Cox supported these allegations through the affidavits of two jurors.  Jury foreperson Kathy Shelton 

stated in her affidavit that some of the jurors based their verdict "on their personal feelings instead of the facts; particularly [a] juror who had been shot and her sister had been killed." She stated that "four jurors, including [Shelton,] held out all day for a not guilty verdict" but "felt pressured by the judge to come to a verdict and that is when we changed our vote." She stated that, during a break in deliberations, "Juror Atkinson was reading a newspaper article about the case out loud to the other jurors." Finally, she stated that one juror slept through deliberations and that another "asked to be told how to vote so she could get out of deliberations."  

In her affidavit, juror Nancy Bass stated:

Myself and three other jurors, including the jury foreman, Kathy Shelton, were voting not guilty. Juror Jay Brian Atkinson cam[e] to the jury room during the deliberations and stated he had read an article about the incident in the newspaper. He all but read the article in the deliberation room. He told the other jurors what the victim had said. I also felt pressure to vote guilty because the judge told us we weren't going home until we reached a verdict.... At polling of the jury I wanted to change my vote [but did not].  

Now, if Cox's appeal were being heard pursuant to Federal Rule of Evidence 606(b), the allegations in these affidavits regarding the sleeping juror, jurors using personal feelings, and a juror asking about how to vote all would have been inadmissible.  In relevant part that Rule states 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.

Because all of the above allegations concerned matters internal to the jury deliberation process, they would not have formed the proper predicate for jury impeachment.  Conversely, because the allegations concerning the newspaper article were allegations concerning "extraneous prejudicial information," they would have formed the proper predicate for jury impeachment.

The problem for Cox is that Texas Rule of Evidence 606(b) does not contain an exception for extraneous prejudicial information.  According to that Rule,

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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. 

Thus, Cox could not achieve any jury impeachment (improper outside influences would be people such as relatives of a party threatening jurors or bailiffs feeding incorrect information to jurors), and the Court of Appeals of Texas affirmed his conviction. Which version of Rule 606(b) do readers prefer?

-CM

Oh Microsoft, Microsoft, Moderation Please: Rhode Island Seemingly Applies Frye In Microsoft Patent Infringement Trial

Here's a quick recap of the recent opinion of the United States District Court for the District of Rhode Island in Uniloc USA, Inc. v. Microsoft, 2009 WL 691204 (D.R.I. 2009):  Expert damages testimony in patent infringement cases is unreliable, but it should be admissible because it is generally accepted.

Uniloc involves Uniloc Singapore Private Limited's claim that Microsoft's Product Activation technology ("MPA") in software products such as Windows and Office infringes Claims 12 and 19 of Uniloc's U.S. Patent 5,490,216 ('216 patent).  According to Uniloc, this infringement was willful; according to Microsoft, it has an invalidity defense, and the '216 patent is unenforceable based on inequitable conduct. But none of these arguments were the basis for the court's recent ruling.  Instead, the court was addressing Microsoft's motion to preclude Uniloc's damages expert from testifying at trial.  And the result is an opinion both colorful and troubling.

According to Microsoft, the court should have precluded Uniloc's damages expert, Joseph Gemini, from testifying for two reasons.  First,

his testimony is unreliable because his damage calculation is based on an unfounded and arbitrary valuation figure that assumes MPA's independent value is $10 per activation. Second, Microsoft takes issue with Mr. Gemini's reliance on the so-called "25% rule of thumb" which it describes as a "junk science" method for calculating royalty rates.

In addressing this argument, the District Court found that

the world of damage calculation in a patent case is constructed on a fictional foundation that resembles the make believe world of "Second Life." If a jury finds Microsoft has infringed Uniloc's patent, it will be called upon to determine what a reasonable royalty would be. It will be asked to do this by envisioning a fictional or "hypothetical" negotiation wherein these two parties-or rather their perfectly reasonable avatars-are transported back in time to negotiate a royalty. They do this with appropriate attention to the so-called Georgia-Pacific factors....Microsoft claims Mr. Gemini's methodology for concocting the reasonable royalty is just not "good science." But this is like saying Alice did not serve Earl Gray at her tea party. Maybe so, but in this fictional world it is close enough because the starting premise, as discussed below, is at least arguably grounded in the evidence and the rule of thumb calculation and the Georgia-Pacific factors are so widely accepted. If these premises are acceptable (which they seem to be) then the only issue is whether Mr. Gemini is qualified (which he is) and has he accurately performed his task (he has). 

In further explaining why Gemini's "rule of thumb" testimony would be admissible at trial, the District Court noted that

[a]lthough the concept of a "rule of thumb" is perplexing in an area of the law where reliability and precision are deemed paramount, the reliability inquiry is a "flexible one...." "The '25% Rule' has been accepted as a proper baseline from which to start [a royalty] analysis...."  There has been considerable criticism of the rule,...much of which is well reasoned. However, the rule's widespread and general acceptance in the field suggests that the reasonableness of Mr. Gemini's reliance on it in fashioning his opinion is a matter that more properly goes to weight as opposed to admissibility. 

Moreover, the court also noted that Microsoft argued that "the 25% rule is only designed to serve as a starting point for a damage calculation and that because Mr. Gemini does not deviate from the rule this approach is result oriented and unreliable."  The District Court similarly rejected this claim, finding that

[w]hile Mr. Gemini's apparent rote application of, the 25% rule is enough to raise an eyebrow, his expert report reveals that he considered many factors in forming his opinion. Again, Microsoft may rely on cross examination and other tools of the adversary process to address the weaknesses in this testimony.

My reaction to this opinion is that it feels to me like an opinion issued in 1992.  Of course, in 1992, federal courts were using Frye v. United States, 293 F. 1013 (D.C. 1923), to admit expert opinion testimony as long as it was based upon reasoning/methodology that had general acceptance in the relevant scientific community. The following year, the Supreme Court issued Daubert v. United States, 509 U.S. 579 (1993), in which it found that Frye no longer rules the federal court roost and that courts must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and of whether that reasoning or methodology properly can be applied to the facts in issue."

The District Court clearly did not make that assessment and instead fell back on the old Frye crutch in finding Gemini's testimony admissible.

-CM

Like A Virgin (Islands' Opinion)?: Supreme Court of V.I. Finds 1953 Uniform Rules Of Evidence Apply In Criminal Trials

The 1953 Uniform Rules of Evidence were kind of like Betamax or HD DVD: they just never really caught on and were eventually supplanted by a better competitor. See Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 Cath. U. L. Rev. 153, 158 (2008).  For the Uniform Rules of Evidence, the competitor was the Federal Rules of Evidence, and the Uniform Rules of Evidence raised he white flag in 1974 when they were amended to be "nearly identical to the then-proposed Federal Rules of Evidence." Deirdre M. Smith, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts, 58 DePaul L. Rev. (2008). The Uniform Rules of Evidence were amended again in 1999 (and again in 2005) but I'm not sure that many people noticed; for most intents an purposes, the Federal Rules of Evidence are the only game in town.

But according to the recent opinion of the Supreme Court of the Virgin Islands in Phillips v. People, it's the 1953 Uniform Rules of Evidence that reign supreme in the Virgin Islands' non-federal courts.  And based upon the way that those Rules treat hearsay, other courts might want to reconsider the way that they do business.

In Phillips, Sinclair Phillips appealed from his convictions for burglary in the second degree and assault in the third degree based upon his alleged attack on Paulious Stoute, a "deaf mute," in Stoute's home.  At Phillips' trial, some of the most damaging testimony rendered against him came from James Charles, a Virgin Islands' police officer, which, according to Phillips, consisted mostly of "inadmissible hearsay concerning the victim's purported [']statements['] identifying [Phillips] as the perpetrator." This testimony was especially important because "[o]nly in a few limited instances did Stoute's testimony," which was given through a sign language interpreter, "cover what he told the police when he described and identified Phillips."  

Now, I don't have the trial transcript before me, so I can't say how a court using the Federal Rules of Evidence would have treated Charles' testimony, but I would guess that some of it would have been deemed inadmissible hearsay under Federal Rule of Evidence 802 while other portions would have been admissible under Federal Rule of Evidence 801(d)(1)(C) , which indicates that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person.

On Phillips appeal, however, the Supreme Court of the Virgin Islands was able to find that all of Charles' testimony was admissible, and it did so by resolving an existing split among V.I. courts as to whether the Federal Rules of Evidence or the 1953 Uniform Rules of Evidence apply in criminal cases in the Virgin Islands' non-federal courts. According to the V.I. Supremes, the latter apply because virtually all of the 1953 Uniform Rules of Evidence were codified in 5 V.I.C. Sections 751-956.

The problem with this analysis is that the editorial commentary to these Sections referred to former Federal Rule of Criminal Procedure 54, a rule that 

“direct[ed] all Article III courts and congressionally-created courts in United States territories, including the District Court of the Virgin Islands,” to “use the Federal Rules of Criminal Procedure in their criminal proceedings...." Because Federal Rule of Criminal Procedure 26 "mandate[d] that courts using the Federal Rules of Criminal Procedure are obligated to use the Federal Rules of Evidence as well," the commentary to the Uniform Rules "conclude[d] that the Uniform Rules cannot apply in criminal matters in the Virgin Islands."  

In turn, the problem with this reasoning is that 

though Rule 54 "directly allude[d] to the District Court of the Virgin Islands, it d[id] not mention the [Superior] Court of the Virgin Islands or any other local court...."  Thus, while "the District Court of the Virgin Islands must rely upon the Federal Rules to resolve its evidentiary quandaries, no such compulsion prevents the [Superior] Court of the Virgin Islands from relying upon the evidentiary code that was adopted by the Legislature...." Furthermore, "[w]hen originally made, the editor’s comment that the Uniform Rules do not apply to criminal actions in the Virgin Islands was technically correct as, at that time, all criminal cases were tried in the District Court...." The District Court’s exclusive jurisdiction over criminal cases arising under either federal or local law lasted until 1984, when Congress, through an amendment to the Revised Organic Act of 1954..., bestowed concurrent jurisdiction to the Superior Court—then known as the Territorial Court—over criminal offenses arising out of violations of local law."

Thus, the V.I. Supremes found that non-federal V.I. courts are not bound by the Federal Rules of Evidence and that they should use the 1953 Uniform Rules of Evidence as codified in 5 V.I.C. Sections 751-956 (The District Court must use the Federal Rules of Evidence pursuant to Federal Rule of Evidence 1101(a)).

So, why is this so important?  Well, 

Title 5, section 932 of the Virgin Islands Code defines hearsay and exceptions, in part, as: 

Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except: 

 

(1) Previous statements of persons present and subject to cross-examination. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.  

In other words, as long as the declarant testifies at trial, there is no hearsay problem.  Obviously, this rule greatly reduces the number of hearsay problems, which in turn reduces headaches for lawyers and attorneys alike.  The question is whether it allows for the introduction of testimony that is too unreliable.  I'm not sure where I fall on the issue, but I think that it is one that merits further consideration.

As a final note, I want to point out that this hearsay difference is not the only difference between the Federal Rules of Evidence and the 1953 Uniform Rules of Evidence.  As noted, Stoute was a deaf mute requiring a sign language interpreter.  Well, under the Uniform Rules of Evidence-V.I. Code, the trial court did not need to treat that interpreter as an expert witness while Federal Rules of Evidence 603 states that

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. 

(Hat tip to Anthony Ciolli for the link to the opinion)

-CM

           

Welcome To The Blogosphere: Legal Planet (The Environmental Law and Policy Blog)

I recently came across the excellent blog Legal Planet (The Environmental Law and Policy Blog), which launched in January.  The contributors to the blog are a collection of heavy hitters in the field of environmental law: Professors Eric Biber, Ann Carlson, Holly Doremus, Ethan Elkind, Dan Farber, Richard Frank, Sean Hecht, Cara Horowitz, Timothy Malloy, Cymie Payne, Steve Weissman, and Jonathan Zasloff. Some of the recent interesting posts on the blog have covered issues such as state insurance regulators taking steps toward addressing climate risk, mandatory renewable portfolio standards, and California's salmon crisis.  I strongly recommend the blog to readers of this blog.

-CM  

Curiosity Killed The Jury?: New York Times Story Addresses The "Google Mistrial"

On March 8th, I posted an entry about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdicts through allegations that "jurors allegedly exchang[ed] e-mails both during trial and during deliberations."  At the time, I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Well, yesterday, John Schwartz took on this issue, and the issue of jurors doing internet research, in his New York Times article, As Jurors Turn to Web, Mistrials Are Popping Up. 

The launching point for Schwartz's article was a "big federal drug trial in Florida" which recently ended in a mistrial based upon nine jurors doing research on the case on the internet." According to Schwartz, this type of mistrial

might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.  

And as readers of this blog know, this phenomenon is not isolated.  Indeed, in his article, Schwartz notes that

[l]ast week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook . The juror had even told his readers that a "big announcement" was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

While juror resort to outside sources has always been a problem that plagued trials, 

now, using their cellphones, [jurors] can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia  can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

These sources have led judges to "amend[] their habitual warning about seeking outside information during trials to include Internet searches."  They have also led attorneys to begin "to check the blogs and websites of prospective jurors."  

Of course, one might wonder whether such behavior is a bad thing, and I would agree with Olin Guy Wellborn III that it indeed is because it allows jurors to consider things that were not filtered through the rules of evidence, which were designed to "ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides."  Indeed, it seems to me that it has gotten to the point where some type of change has to be made to account for the rapid encroachment of technology into the jury trial.  The only question is: What type of change should it be?

-CM

You're On Notice: Eleventh Circuit Finds that Rule 404(b)'s Notice Requirement Doesn't Apply To Intrinsic Evidence

The recent opinion of the Eleventh Circuit in United States v. Watley, 2009 WL 635185 (11th Cir. 2009), reveals that the criminal pre-trial notice requirement of Federal Rule of Evidence 404(b) applies only if the evidence at issue is extrinsic to the charged offense.

In Watley, Anthony Watley appealed from his convictions for being a felon in possession of firearms, possessing cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking offense. These convictions resulted from a drug bust at Watley's house on May 22, 2007, and the prosecution also presented evidence of prior drug sales at Watley's house on April 30, 2007 and May 18, 2007.

On Watley's appeal, the Eleventh Circuit rejected his argument that evidence regarding these other drug sales was inadmissible under Federal Rule of Evidence 404(b); instead, the court found that:

Since Watley was charged with possessing cocaine with intent to distribute, the government was entitled to establish, through circumstantial evidence, Watley's knowledge of the cocaine at the house and knowledge of, if not direct participation in, the drug distributions that occurred there.

The court also found that the evidence of the other drug sales was admissible to explain why a search warrant was obtained for Watley's house.

Watley also raised the argument that the evidence of these other drug sales was inadmissible because the prosecution failed to provide him with pre-trial notice of its intent to introduce this evidence in accordance with the last clause of Federal Rule of Evidence 404(b), which states that:

the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The Eleventh Circuit, however, rejected this argument, finding that the evidence at issue was intrinsic, rather than extrinsic, to the charged offense. In other words the evidence of the other contemporaneous drug sales was "inextricably intertwined" with the charged offense, both in terms of the behavior of Watley in committing the subject crime and the police in investigating that crime. And because it was intrinsic evidence, Watley should have known that the prosecution would admit it and was not entitled to the pre-trial notice otherwise required by Federal Rule of Evidence 404(b)

-CM

Call For Papers & Panels: Outsiders Inside: Critical Outsider Theory and Praxis in the Policymaking of the New American Regime

LatCrit XIV: Fourteenth Annual LatCrit Conference
http://www.latcrit.org/

CALL FOR PAPERS & PANELS

OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS
IN THE POLICYMAKING OF THE NEW AMERICAN REGIME

American University - Washington College of Law
Washington, D.C.
October 1 - 4, 2009


Please join us at LatCrit XIV, the Fourteenth Annual LatCrit (Latina and Latino
Critical Legal Theory, Inc.) Conference, which will take place in Washington, D.C.,
from Thursday, October 1 through Sunday, October 4, 2009.

LatCrit/SALT Junior Faculty Development Workshop

The Seventh Annual Junior Faculty Development Workshop, sponsored jointly with the Society of American Law Teachers (SALT), will begin at 9:00 am, Thursday, October 1st and continue through Friday morning.

LATCRIT XIV THEME

OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS IN THE POLICYMAKING OF THE NEW AMERICAN REGIME

In October 2009, LatCrit will meet inside the Beltway for the first time in its history amidst a tectonic shift in American government. With the January inauguration of President Barack H. Obama, the nation’s first “outsider” president, we also saw the ascendance of a new progressive governance philosophy in Washington. As a biracial former law professor with working class and immigrant roots and an international and multicultural upbringing, Mr. Obama ran a progressive campaign that echoed many core LatCritical values, including internationalism and global-mindedness, the valorization of human rights and multidimensional diversity, the centrality of antidiscrimination work, a commitment to rigorous interrogation of longstanding dominant assumptions and norms, and a preference for discourse and dialogue over militarism. Notably, President Obama’s Yes We Can! campaign slogan has its roots in the ¡Si Se Puede! rallying cry coined by Dolores Huerta of the United Farm Workers movement and invoked in more recent progressive and mostly Latino/a political actions.

The new Presidential administration and enlarged bicameral Democratic majority in Congress account only for part of the historic paradigmatic transition in American national government. The ongoing deterioration of the American and world economies also has catalyzed an aggressive reassessment by moderate and even some conservative thinkers of the wisdom of the Reagan Revolution’s uber alles dependency on the private marketplace for the realization of the public good – an antiregulatory disposition that dominated federal government through the last seven presidential administrations. In the United States, the failure of the government’s dominant antiregulatory disposition to prevent the ensuing economic meltdown has catalyzed a new, aggressive Federal response in the form of much more statist economic interventions, including the de facto nationalization of key economic components. To add irony, it was the administration of President George W. Bush – the loudest in exalting the power of unbridled private marketplaces to regulate themselves – that laid the foundation for the national takeover of large sectors of the financial services and banking industries.

These quantum changes in the leadership and driving philosophies of American government present unique and in some cases unprecedented opportunities for scholars engaged in critical outsider scholarship to influence and inform national policy and legislation. The new executive and legislative branch incumbents have telegraphed early receptivity to the instantiation of LatCritical and other progressive theories and principles in the tangible products of Federal government (i.e., legislation, regulation, presidential directives, and, of course, caselaw). As President Obama’s aspirational campaign continues to transition into the nouveau regime at the helm of the most powerful government on Earth, millions of Americans expect the vague Yes We Can promise to become the Yes We Are reality.

But with these openings come potential pitfalls. Although the ascendance of a putatively progressive president and likeminded Congressional majority indeed may open up new opportunities to bridge the theory/praxis chasm, it also may pose serious challenges to the independence and even legitimacy of progressive critical theory movements. Should the cooption or even distortion of conservative theory by militaristic, extremist partisan politicos serve as a cautionary tale in the formation of new relationships between the progressive government and outsider critical theorists? More specifically, what if the first year in office of the Yes We Can presidential candidate unfolds into more of a No We Won’t disappointment? What if the exigencies of governing to and from the middle – which many pundits insist is the sine qua non for reelection viability – result in the sacrificing of Obama’s progressive promise? What roles should outsider critical legal scholars and their scholarship assume then? More generally, what should the incarnation of progressive theory in the new American regime look like? And what prevents that theory from being co-opted and corrupted by the corroding influences of insider power?

The LatCrit XIV Host Committee invites the submission of proposals for panels and papers related to this open-textured theme and encompassing the fullest array of theoretical and doctrinal topics and approaches. Because we will be in Washington, DC, we encourage the submission of paper and panel proposals propounding prescriptive critiques of discrete areas of law, policy and regulation of specific relevance to outsider communities, including (but by no means limited to) economic justice, international and comparative law, criminal law and the death penalty, civil rights and constitutional law (including gender and LGBT equality, reproductive and disability rights), feminist legal theory, immigration, political and electoral (dis)enfranchisement, communications policy and intellectual property, healthcare, education, employment, tax policy, and the environment. We also, of course, welcome proposals for more theoretical panels and papers, particularly (but not exclusively) in areas linked to the challenges posed by progressive governance and the ascendance of outsiders to positions of ultimate authority.

Please submit your panel and paper proposals through the online process at the LatCrit website (http://www.law.du.edu/latcrit/index.htm) no later than MONDAY, APRIL 27, 2009. Please note that although paper proposals for work-in-progress sessions may be submitted now, we will continue to accept those proposals through mid-July (please refer to LatCrit website for forthcoming additional details).

Standing LatCrit Themes

LatCrit conferences seek to feature and balance four basic perspectives in organizing each annual conference’s substantive program. These four perspectives are listed as themes below. They have, thus far, served as useful lenses of LatCritical inquiry, enabling LatCrit scholars to develop an impressive body of work that increasingly links issues of identity to the substantive analysis of law, policy and process. This effort to link identity issues to substantive analyses has been particularly fruitful in revealing the way race and ethnicity are implicated precisely in those areas of law and policy that are ordinarily thought not to be about race and ethnicity: for example, in the operations and assumptions of international law and legal process, foreign affairs, liberal democracy, religion and sexuality, to name just a few areas of recent LatCrit attention.

To build on these accomplishments, everyone is encouraged to develop their proposals with a view to: (1) expanding our understanding of the impact of race and ethnicity in substantive areas of law and policy ordinarily thought to be about "something other than race" (e.g. issues of sovereignty, labor rights, globalization, intellectual property, antitrust law); and (2) deepening our analysis of the various ways in which identity issues intersect, conflate and conflict in our self-understandings and coalitional efforts. The following four themes are offered, therefore, as possible points of reference for thinking in new ways about familiar issues (like affirmative action and bilingual education), as well as for encouraging critical forays into new substantive areas (like communications or antitrust laws):

1) Papers or panels that focus on the multidimensionality of Latina/o identity and its relationship to current legal, political and cultural regimes or practices. The ideal is to explicate aspects of the Latina/o experience in legal discourse, both domestically and internationally. Nonetheless, you are free to address identity issues that do not specifically touch upon Latina/o identity or the law.
2) Papers or panels especially salient to this region (the East Coast). Regional emphasis ensures that the Conference's geographic rotation will illuminate local issues, helping us understand how local particularities produce (inter)national patterns of privilege and subordination.
3) Papers or panels that elucidate cross-group histories or experiences with law and power, such as those based on the intersections of class, gender, race, sexuality and religion. In this way, each Conference aims to both elucidate intra-Latina/o diversities and contextualize Latina/o experience within inter-group frameworks and Euro-Heteropatriarchy. Accordingly, we constantly ask how we can create progressive movements, communities and coalitions that meaningfully recognize difference.
4) Papers or panels that connect or contrast LatCrit theory to other genres of scholarship, both within and beyond law and legal theory, including but not limited to the various strands of critical outsider jurisprudence (critical race theory, feminist legal theory, queer legal theory) that critique class, gender, race, sexuality and other categories of social-legal identities and relations.

The Sponsoring Institution – American University Washington College of Law

Founded in 1898, the American University Washington College of Law is the first law school in the world founded by women, Ellen Spencer Mussey and Emma Gillett, who did so in part to combat the de facto exclusion of women from legal education and practice. WCL also was the first law school to have a woman dean and the first to graduate an all female law school class. The law school later expanded its mission to provide more generally opportunities for those historically outside the mainstream of the legal profession.

Today WCL is one of the most diverse law schools in the country, with 1,216 full-time JD students (40% identifying as minorities and 55% women), 160 students in two LLM degree programs and 25 SJD candidates. WCL’s student body includes native speakers of 92 languages and dialects, with almost all nations of the world represented. Its main building at 4801 Massachusetts Avenue, NW, occupies nearly 180,000 square feet over six stories, including the 54,000-square foot Pence Law Library.

WCL’s faculty consists of 61 tenured and tenure-track and over 100 active visiting and adjunct professors engaged in teaching, scholarship and service benefiting a myriad of professional and community institutions and social justice causes. Dr. Claudio Grossman, WCL dean and Raymond I. Geraldson Scholar for International and Humanitarian Law, is the longest serving Latino law school dean in the nation and an active practitioner of international and human rights law, currently serving as the unanimously elected chair of the United Nations Committee against Torture (UNCAT).

The Conference Sites

The LatCrit/SALT Junior Faculty Development Workshop (On Thursday, October 1) and the first full day of the LatCrit Conference (Friday, October 2) will take place in the Conference Center at the Hyatt Regency Bethesda Hotel in Bethesda, Maryland, which also will serve as the primary lodging site for conference attendees. A very accessible and comfortable hotel, the 390-room Hyatt Regency Bethesda offers two full-service restaurants, fully equipped fitness center, in-room broadband Internet access, and spacious conference facilities. The hotel is located at the heart of Downtown Bethesda, a diverse and lively urban center two miles northwest of the Washington, DC, border and three miles from American University. Over 200 restaurants, three live theaters, two cinemas, and several bookstores are within a short walk of the hotel, which sits directly above the Bethesda station on the Metro Red Line, offering rapid, low-cost and high-frequency rail service to Dupont Circle (15 minutes); the National Mall, White House, and Capitol Hill (20 minutes); and Reagan National Airport (30 minutes).

The LatCrit XIV planning committee selected the Hyatt Regency Bethesda in June 2008 after a lengthy and exacting search, and was able to lock in a significantly discounted guestroom rate for LatCrit attendees, comparable to previous LatCrit conference rates, in what is one of the most expensive hotel markets in the nation. Hotel reservation information will be made available, together with conference registration information, in early summer.

Most of the conference events on Saturday, October 3, including several rounds of panels, all work-in-progress workshops, and a community lunch, will take place at the American University Washington College of Law. Free shuttle bus transportation will be available between the hotel and the law school.

There's No Record Of It: Eighth Circuit Seemingly Finds No Criminal Case Exception To Rule 803(10)

Back in January, I posted an entry that raised a hypothetical question about the interplay between Federal Rule of Evidence 803(8)(B) and Federal Rule of Evidence 803(10). Well, in its recent opinion in United States v. Harris, 2009 WL 614771 (8th Cir. 2009), the Eighth Circuit addressed that issue. And I think that it reached the wrong conclusion.

In Harris, Antonio Harris appealed from his conviction for possessing over fifty grams of cocaine base (crack) with intent to distribute it. One of the grounds for his appeal was that the district court

erred by allowing Julie Hancock, his probation officer at the time of trial, to testify to the contents of his probation file. During the trial, Mr. Harris, in an effort to establish that Detective Liston had planted the drugs seized in his apartment, testified that the detective had harassed him on three separate occasions and that he (Mr. Harris) notified Kelly Wilkins, who was his probation officer at the time, each time he had such an encounter as he was required to do. Ms. Hancock testified that Mr. Harris's probation file, which Ms. Wilkins maintained during the time period in question, did not contain any notations indicating that Mr. Harris had made any calls to Ms. Wilkins or notified her of any supposed harassment.

Harris argued that Hancock's testimony was inadmissible under Federal Rule of Evidence 803(8)(B), which provides an exception to the rule against hearsay for:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.

According to Harris, because Rule 803(8)(B) specifically retains the hearsay objection "in criminal cases" for "matters observed by police officers and other law enforcement personnel," the district court should have deemed Hancock's testimony inadmissible. The Eighth Circuit disagreed, concluding that:

803(8)(B) "does not bar the admission of all law enforcement agency records...." While it does prohibit the admission of records that contain opinions or conclusions resulting from criminal investigations, it does not bar the admission of records concerning routine and unambiguous factual matters....Ms. Hancock's testimony was offered for the purpose of ascertaining what Mr. Harris told Ms. Wilkins, something that involves a routine and unambiguous factual notation and not an opinion, a finding of fact, or a conclusion....Thus, even if Rule 803(8)(B) were applicable here, it would not bar Ms. Hancock's testimony.

But the Eighth Circuit noted that because Hancock was establishing the absence of a record of Harris' alleged calls, the Rule that applied was Federal Rule of Evidence 803(10), which states that:

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

According to the court,

it is Fed.R.Evid. 803(10) that is relevant here because Ms. Hancock's testimony was not offered to show what was in Mr. Harris's file; it was offered to show what was not in it. Rule 803(10) allows for admission of testimony that "a diligent search failed to disclose [a] record" to prove the "nonexistence of a matter" where a record of such a matter would have been "regularly made and preserved by a public office or agency." Ms. Hancock testified, in part, that it was normal policy for probation officers to make an entry in a probationer's file for each contact with the probationer, and there were no notations in Mr. Harris's file indicating that Mr. Harris had contacted Ms. Wilkins. Ms. Hancock's testimony was therefore admissible to prove that Mr. Harris did not tell Ms. Williams about any alleged police harassment.

Now, it seems to me that this conclusion can be read in two ways. The first is that (a) Rule 803(8)(B) only covers reports/records that contain opinions or conclusions resulting from criminal investigations, so (b) Rule 803(10) only covers the absence of entries in reports/records that contain opinions or conclusions resulting from criminal investigations. If that's the case, I have no objection to the opinion.

But it seems to me that the Eighth Circuit reached the broader conclusion that there is no criminal case exception to Rule 803(10). And certainly, there is nothing in the language of Rule 803(10) that indicates that there is such an exception. Nonetheless, I see no good reason why there would be a criminal case exception to the public record/report Rule while there wouldn't be such an exception for the Rule covering the absence of entries in public records/reports. Indeed, is there really even any difference between the two Rules?

-CM

What, A Fraud?: Southern District Of Texas Refuses To Pierce Attorney-Client Privilege Based Upon Strange Fraud Allegation

The recent opinion of the United States District Court for the Southern District of Texas in Doty v. Sun Life Assur. Co. of Canada, 2009 WL 614907 (S.D. Tex. 2009), addressed a strange request to pierce the attorney-client privilege (based upon the crime-fraud exception) that the court properly rejected.

In Doty, after

Kathleen Doty, an ex-employee of Clear Creek Independent School District (CCISD), was denied long-term disability payments under the Plan maintained by CCISD, she filed suit against Defendant, Sun Life Assurance Company of Canada (Sun Life) by invoking federal jurisdiction under the Employee Retirement Income Security Act (ERISA). Unfortunately, for Doty, CCISD's long-term disability plan is a governmental plan exempted from ERISA coverage. Sun Life did not challenge the Court's jurisdiction, but moved for summary judgment on other grounds. After summary judgment was granted in favor of Sun Life, Doty's counsel realized his mistake and filed a Motion to Dismiss for lack of subject matter jurisdiction. The District Court granted Doty's Motion.

Doty thereafter, inter alia, filed a subsequent action and against Sun Life and a motion

seeking an in camera review of "all letters, memoranda or other documents discussing whether the claim of Kathleen Doty was covered by ERISA" or whether Clear Creek Independent School District was a governmental entity under 2[9] U.S.C. § 1003(b)." According to Doty, she “believes that the letters of Sun Life and their (sic) attorneys will show that they knew that ERISA did not apply to Plaintiff's claims but they were representing to the Court and to Plaintiff that ERISA did apply. This is fraud,” she concludes. Consequently, Doty wants the Court, under the guise of the Crime/Fraud Exception of Rule 503(d)(1) of the Texas Rules of Evidence, to examine and, hopefully, disclose the documents otherwise covered by the attorney-client or work-product privileges.

Nonetheless, while finding Doty's motion to be "tempting," the ultimately rejected it because

[e]ven if the Court were to assume fraud,...the disclosure of the suspected supportive documents are of no use to Doty in pursuit of her claim for long-term disability benefits. Sun Life's attorneys cannot be sued by Doty for fraud. Under Texas law, attorneys cannot be held liable to the opposing party for wrongful litigation conduct...; if any attorney's conduct violates his professional responsibility, the remedy is public, not private....Nor can Sun Life be sued for fraud, because, generally, claims of fraud cannot arise from legal opinions....While there are three recognized exceptions to the latter Rule, none apply here. First, Sun Life had no superior knowledge of the applicable law during the initial lawsuit; both Parties were represented by experienced counsel....Second, there was no fiduciary duty between Sun Life and Doty, individually....Third, the "misrepresentation" of the jurisdictional law did not concern a present factual state of affairs; Doty knew she had been an employee of CCISD and her counsel was free to research the apparent jurisdictional concession of Sun Life.

All that's fine and dandy, but I think that I have a simpler reason why the court should have rejected Doty's motion. And that reason is that I see no possible reason why Sun Life would have wanted to commit a fraud upon the court by moving for summary judgment when it was at least somewhat apparent that there was no subject matter jurisdiction over Doty's claim. It is well established under Federal Rule of Civil Procedure 12(h)(3) that the defense of lack of subject matter jurisdiction can never be waived, even after a court has entered a verdict, order, opinion, etc. Indeed, this is why Doty's counsel was able to successfully file a motion to dismiss for lack of subject matter jurisdiction even after the court granted Sun Life's summary judgment. Based upon these facts, I don't see how Sun Life's behavior could be construed as fraudulent, unless the company was acting at the level of Brad Pitt in Burn After Reading.

-CM