Saturday, April 18, 2009
Pursuant to the tax day ruling of the United States District Court for the Southern District of New York in Gotti v. United States, 2009 1010498 (S.D.N.Y. 2009), the 2004 conviction and sentencing of Peter Gotti, a/k/a "One Eyed Pete" and the brother of John Gotti, will stand, at least for now. Back in 2004, Gotti was convicted of racketeering, conspiracy to racketeer, conspiracy to murder, and extortion and was sentenced to 25 years in prison, 3 years of supervised release, and a $400 special assessment based upon his ordering a hit on mob rat Salvatore "Sammy Bull" Gravano. This was not Gotti's first appeal, but it might be his last.
Friday, April 17, 2009
Thieves Like Them: Court Of Appeals Of Minnesota Explains The Boundaries Of Proper Prosecutoruial Comment During Closing
It is well established that a prosecutor may not belittle or disparage the defendant('s case) during closing argument. At the same time, "[a] prosecutor has discretion to fashion a persuasive closing argument, and the rhetoric need not be colorless." The question that the Court of Appeals of Minnesota had to address in State v. Peterson, 2009 WL 982081 (Minn.App. 2009), was whether the prosecutor in the appeal before it crossed this line.
Thursday, April 16, 2009
The Conclusory Conclusion: Fourth Circuit Makes Seemingly Incorrect Evidentiary Ruling Regarding Admissibility Of Instant Messages
I hate conclusory conclusions, i.e., when a court rejects a litigant's argument in one sentence without even telling you the basis for its conclusion. The problem with these conclusory conclusions is that the court possibly has a valid reason for rejecting the argument. But based upon the paucity of analysis in the court's opinion, the reader is forced to assume that the court got it wrong. The recent opinion of the Fourth Circuit in United States v.Minder, 2009 WL 981102 (4th Cir. 2009), contains just such a cursory conclusion.
Wednesday, April 15, 2009
(Dys)Functional Equivalent?: Ninth Circuit Finds No Exception To Confidential Marital Communications Privilege For Grandchild Victim
The confidential marital communications privilege protects from disclosure private communications between spouses; however, there is an exception to the privilege for statements relating to a crime where a child of one or both of the spouses is the victim. As the recent opinion of the Ninth Circuit in United States v. Banks, 556 F.3d 967 (9th Cir. 2009), makes clear, this exception also applies to statements relating to a crime where the "functional equivalent" of a spouse's child is the victim, but only when the victim truly is a "functional equivalent."
Tuesday, April 14, 2009
I Need A Remedy: Supreme Court Of Idaho Opinion Raises Question Regarding Admissibility of Subsequent Remedial Measure Evidence By A Defendant
Like its federal counterpart, Idaho Rule of Evidence 407 indicates that
When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, or culpable conduct, or a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
But does Rule 407 apply when a defendant wants to present evidence of a subsequent remedial measure to prove that it did not act negligently or otherwise culpably at the time of an accident? According to the recent opinion of the Supreme Court of Idaho in Jones v. Crawforth, 2009 WL 929839 (Idaho 2009), it does. I disagree.
Monday, April 13, 2009
Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal
Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:
"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."
Appellate courts have found this right to be violated when trial courts apply state rules of evidence in a fashion that is technically correct but "mechanistic" or arbitrary or disproportionate to the purposes that the rule is designed to serve. In other words, an appellate court cannot simply respond to an appellant's claim that a trial court violated his right to present a defense by excluding evidence based upon the conclusion that the trial court properly applied a rule of evidence. And yet, that is exactly what the Court of Appeal of Louisiana, Second Circuit, did in State v. Thomas, 2009 WL 929388 (La.App. 2 Cir. 2009).
Sunday, April 12, 2009
Waiting For The Verdict?: Supreme Court of Texas Precludes Jury Impeachment Even In The Absence Of A Verdict
Under Texas' version of the anti-jury impeachment rule, Texas Rule of Evidence 606(b),
But can jurors testify after a trial which ended in with a settlement agreement and not a verdict, meaning that they would not be testifying upon an inquiry into the validity of a verdict? According to the recent opinion of the Supreme Court of Texas in Ford Motor Com. v. Castillo, 2009 WL 886159 (Tex. 2009), they cannot.