EvidenceProf Blog

EvidenceProf Blog's 3rd Annual Halloween Movie Pick: John McNaughton's "Henry: Portrait of a Serial Killer"

It's Halloween again, which means that it's time for EvidenceProf's Blog's third annual Halloween movie pick (after "The Gift" and "Homecoming"). For this year's pick, I'm again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of John McNaughton's "Henry: Portrait of a Serial Killer," a film loosely based upon real life serial killer Henry Lee Lucas, the only man that George W. Bush granted clemency while he was governor.

"Henry: Portrait of a Serial Killer"

When Maljack Productions commissioned John McNaughton to direct "Henry: Portrait of a Serial Killer," they expected a standard slasher flick, much like Morgan Creek presumed Paul Schrader, the man who created Travis Bickle, would make its "Exorcist" prequel into the type of schlocky horror flick Renny Harlin eventually crapped out. Instead, McNaughton subverted serial killer movies against the backdrop of mid-80s Chicago, just as "Taxi Driver"  deconstructed "Death Wish" vigilante thrillers in mid-70s Manhattan. In fact, "Taxi Driver" director Martin Scorsese was so taken by this directorial debut that he later produced McNaughton's "Mad Dog and Glory," which personalized the gangster genre by focusing on the connections between a kingpin, his mol, and a lonely cop.

Henry is loosely based upon real life serial killer Henry Lee Lucas, and it also hones in on a trio: Henry, his scuzzy apartment-mate Otis, and Otis' newly arriving sister Becky, who jumped out of the frying pan of an abusive relationship and into their crossfire. It's ironic that "serial killer chic" flicks like "Saw" practically beg audiences to root for the quirky sociopath and get R or even PG-13 ratings, while the objective and unglamorous Henry was slapped with an X rating based on "disturbing moral content" for strapping the audience into the passenger seat of Henry's beat-up green sedan and forcing us to question our reactions to violence.

McNaughton doesn't even cede us establishing shots, instead dropping us into scenes with tight shots that slowly retract and rotate to give us context, such as during the first act's dystopian tableaux of Henry's victims whose grotesqueness is only gradually revealed. It's an unsettling technique later tweaked by Ray Lawrence to open his twisty "Lantana." Ratcheting up the disquiet is Robert McNaughton's score of throbbing drums and shrill piano as he contrasts the lifelessness of Henry's corpses with the imprint of their reverberating screams. The only false notes struck are some synthesizer riffs that date the film (like "Manhunter").

McNaughton and the film's co-writer Richard Fire had documentary and theater backgrounds respectively, and they create a Cinéma vérité feel in scenes unfolding in flatly lit Chicago backalleys, while the spareness of Henry and Otis' mouldering apartment allows for the intimacy and emotional rawness of a stage production. Michael Rooker ("Eight Men Out") plays Henry as affable but affectless, a sharp duality that matches his soft yet gravelly voice. Like Owen Wilson's serial killer in "The Minus Man," he's scary precisely because he's the low-key guy sitting next to you at the diner, not a hockey-masked or muzzled monster.

The intentionally grainy film is presented in a full screen transfer from its original 16mm print with Dolby Digital 2.0. Two documentaries and a commentary track by the director and moderator David Gregory are engrossing and comprehensively cover the making of the film and Henry Lee Lucas' life. McNaughton also provides keen commentary on about 20 minutes worth of deleted scenes, which don't have sound, and there's also a still gallery and a superb collection of storyboards.

-CM

Don't Rock The Boat, Take 2: Supreme Court Of Iowa Opinion Reveals That Iowa And Federal Rules On Subsequent Remedial Measures Aren't That Different

Back in March, I posted an entry about the opinion of the Court of Appeals of Iowa in Scott v. Dutton-Lainson Co., 2009 WL 398488 (Iowa App. 2009), and how it revealed the differences between Federal Rule of Evidence 407 and Iowa Rule of Evidence 5.407. Well, in its recent opinion in Scott v. Dutton-Lainson Co., 2009 WL 3415937 (Iowa 2009), the Supreme Court of Iowa reversed the Court of Appeals of Iowa, revealing that the two rules aren't that different.

As I noted in my previous post,

In Scott, Stephen Scott, the manager of a boat dealership, was injured when the swivel jack on a boat trailer collapsed as he attempted to move the boat and trailer, with the tongue of the trailer landing on his foot. He thereafter sued the trailer manufacturer and the trailer jack manufacturer, Dutton-Lainson, alleging, inter alia, that the jack failed due to defects in its design and manufacture. The trial court, however, precluded Scott from presenting certain evidence, such as evidence that Dutton-Lainson modified the pin of the swivel jack following his injury. After the jury returned a verdict in favor of Dutton-Lainson, Scott appealed, claiming, inter alia, that the trial court improperly precluded the jack modification evidence.

The Court of Appeals of Iowa held that the issue was governed by Iowa Rule of Evidence 5.407, which states that:

When, after 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 in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

This language is different from the language in Federal Rule of Evidence 407, which states that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, 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 when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

As the Supreme Court of Iowa noted in Scott, one clear difference between these two rules is that "Iowa Rule of Evidence 5.407 allows introduction of evidence of subsequent remedial measures in strict liability claims while Federal Rule of Evidence 407 specifically prohibits it." The Court of Appeals of Iowa, however, had gone one step further. It also found that Iowa Rule of Evidence 5.407 allows introduction of evidence of subsequent remedial measures in cases involving products liability claims which are not strict liability claims and thus deemed the jack modification evidence admissible.

In its recent opinion in Scott, the Iowa Supremes disagreed, finding that 

[t]he standards for design defect and failure to warn claims-as recognized by the Third Products Restatement and Wright-require consideration of reasonableness and therefore incorporate negligence principles....Scott seeks to introduce evidence of a subsequent remedial measure to do exactly what the rule forbids: prove negligence or culpable conduct.  

The court thus vacated the opinion of the Court of Appeals of Iowa and reinstated the trial court's conclusion that the jack modification evidence was inadmissible.

-CM

The Art Of The Steal: The EvidenceProf Blog Review Of The "White Collar" Pilot

Last Friday, USA aired the pilot of its new series "White Collar." The second episode airs tomorrow at 10/9c. If the pilot is a harbinger of things to come, this might be the rare show that I recommend that law students watch. Here is the EvidenceProf Blog review:  

In the early twentieth century, Upton Sinclair coined the phrase "white collar," and he exposed the New York City white collar criminal in "The Moneychangers," his fictionalized account of the Wall Street panic of 1907. The pilot episode of "White Collar" reveals why it is appropriate, especially in the post-Madoff milieu, that the USA Network show takes its name from the famed muckraker's musings.

The pilot opens by introducing us to the two principals. Matthew Bomer ("Chuck") is Neal Caffrey, a jack-of-all-cons, escaping from a supermax prison in a breezy manner that matches the tone of the network's latest entry in its "Characters Welcome" coterie. Tim McKay ("Carnivàle") is FBI agent Peter Burke, the by-the-book G-man who put Caffrey behind bars but who has just had his latest search for another crack con -- the Dutchman -- (literally) blow up in his face.

Caffrey flew the coop four months early in an attempt to reconnect with former flame Kate, but his flight was two days late as all he finds is her deserted apartment and a reunitement with Burke and his jail cell. Facing another four years in the pokey, Caffrey makes a deal with Burke (relying upon "precedent" and "case law"): He'll trade his jail time for straight time and serve as the con man to Burke's straight man by using his skills to help Burke track down white collar criminals. And those skills are ample. The pilot sets up Caffrey as every bit as conversant in the confidence game as USA stablemate Michael Westen ("Burn Notice") is in the spy game. The catch? A GPS device cum plot device that will go off if Caffrey veers outside a two mile radius in Manhattan in an attempt to find Kate, a quest that sets itself up to be a season-long B-story like Westen's attempt to find out who "burned" him.

As with "Burn Notice," "White Collar" gains a great deal of credibility by doing location shooting, giving off a great NYC vibe. But, despite using Russell Lee Fine, a frequent DP for "The Wire," the show feels more like a slick Rat Pack era throwback than a gritty, urban drama, much like the BBC's flimflammy "Hustle." Indeed, the pilot has Caffrey charming his way out of a dingy hotel and into a palatial mansion (much like Hank Lawson in USA's "Royal Pains") by sharing an appreciation of Sy Devore suits with the mansion's widow. Caffrey later dons period garbs, and the show is leavened with 1960s era staples such as "Get Ready" (played during Caffrey's escape) and "The Good Life." You won't find any handheld shaky cam work in the show; it's all dolly shots, evoking shows from a bygone era such as "It Takes a Thief," which inspired this update of the cat(burglar) and mouse genre.

The show was also inspired by "Catch Me If You Can," in which Leonardo DiCaprio's Frank Abagnale, Jr. reveals that the one con that he didn't pull was passing the Louisiana bar exam; he simply studied really hard. The resolution of the pilot of "White Collar" similarly ends with Caffrey cracking a Criminal Procedure casebook and navigating his way around the pesky search warrant requirement, which leads to the grounding of the flying Dutchman and Burke giving a fairly accurate explanation of the doctrine of exigent circumstances (and the plain view doctrine). Series creator Jeff Eastin ("Hawaii") has enlisted the consulting services of Tom Barden, the head of the New York Field Office of the FBI's white collar crime division for fifteen years, and it seems to be paying early dividends with a show that appears that it will not invite the typical "spot the legal inaccuracies" skepticism.     

-CM

Absence Of Malice: Court Vacates Second Degree Murder Conviction Because Juror Read Dictionary Definitions Of "Malice" To Other Jurors

A man is charged with, among other things, second degree murder, which means that the prosecution needs to prove beyond a reasonable doubt that the man acted with malice in order for the jury to convict him. Legally,

Malice is a necessary element which distinguishes second degree murder from manslaughter. Malice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.

Of course, the word malice is also used outside the legal context, with its usual definition being "desire to cause pain, injury, or distress to another" or "intent to commit an unlawful act or cause harm without legal justification or excuse." 

So, what would happen in the above case if a juror decides to bring a dictionary into the jury room and reads the dictionary definition of malice, with the defendant eventually being convicted of second degree murder? The answer, according to the recent opinion of the United States District Court for the Eastern Middle District of North Carolina in Bauberger v. Haynes, 2009 WL 3450967 (M.D.N.C. 2009), is that the jury can impeach its verdict, leading to the defendant being awarded a new trial.

In Haynes,

On February 3, 2002, [William] Bauberger consumed in excess of ten beers over the course of approximately five hours at a Super Bowl party and then left via his car to visit a friend. En route, he drove the wrong way down an exit ramp of U.S. Highway 421 in Winston-Salem, North Carolina, and collided with a car driven by William Foy. Tragically, Foy's wife, a passenger, died within minutes of the crash.

In order to establish that Bauberger acted with malice as defined above,

the state presented evidence that Bauberger (1) admitted to driving with a blood alcohol level of .20 on the night of the crash; (2) had at least two prior convictions for Driving While Intoxicated, as well as other driving offenses such as reckless driving; (3) disregarded road signs and other warnings on the night of the crash; (4) disregarded prior court orders not to drive; (5) drove that night despite having had his license revoked; and (6) acted in a profane manner to emergency personnel and others at the scene of the crash.

The jury eventually found that Bauberger acted with the requisite malice and thus found him guilty of, inter alia, second degree murder, but not until after a juror checked out Webster's New Collegiate Dictionary, brought it to the jury room, and read its definitions of "malice" to the other jurors.

After Bauberger was convicted, he learned of this fact and sought to have his verdict vacated via jury impeachment. The United States District Court for the Eastern Middle District of North Carolina noted that the issue was governed by Federal Rule of Evidence 606(b), which states, inter alia, 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.

The court found that the dictionary definitions were indeed an "extraneous influence" because they competed with the legal definition of malice and thus vacated Bauberger's conviction because it found that this influence was not harmless. According to the court,

When juries resort to self-help in assessing the law-even when well-intentioned, they jeopardize the deliberative process and a defendant's fundamental rights under the Constitution to an impartial jury. The purpose of these rights is to “protect[ ] individuals from unconstitutional convictions and help to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair.”...As reprehensible as is Bauberger's conduct, he is entitled to the protections of the Sixth Amendment and thus a new trial as to the second-degree murder charge.

-CM

The Love Letter: Colorado Judge To Determine Admissibility Of Love Note From Ex-Boyfriend In Second Degree Murder Trial

A man allegedly shoots and kills his girlfriend and is charged with second-degree murder. In order to establish the man's motive for the shooting, the prosecution seeks to introduce a love note allegedly written to the girlfriend by an ex-boyfriend. Should the court admit the note, or should it exclude it as inadmissible hearsay? That's the question that a judge in Colorado is about to answer.

Justin Moore is the man alleged to have shot his girlfriend, and Adam Clark is the man who allegedly wrote the love note. The prosecution has indicated its intent to have Clark testify regarding the note, and "Judge Dave Williams said Tuesday there is precedent from case law very similar to the situation involved in Moore's second-degree murder trial that he thinks makes the note admissible." I'm not sure what precedent Judge Williams is referencing, but I think that he generally could be correct.

Colorado 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." It seems like the prosecution could legitimately claim that it is not using the note to prove the truth of the matter asserted in it -- that Moore still pined after his ex-girlfriend. Instead, the prosecution can claim that it is using the note to show its likely effect upon Moore. In other words, regardless of whether Clark was honest and/or accurate when he wrote the note, Moore, upon reading the note, would have every reason to believe the note's contents, causing strain upon his relationship and a possible motive for murder.

Of course, this all depends upon proof that Moore actually read the note, and the prosecution has not indicated whether Moore was aware of the note and its contents when his girlfriend was fatally shot. This thus seems to create a conditional relevance issue under Colorado Rule of Evidence 104(b), meaning that the prosecution would have to establish that a reasonable jury could find the conditional fact, that Moore had knowledge of the note's contents, by a preponderance of the evidence before the note could be admitted. Of course, the prosecution hasn't been entirely clear about the purpose for which it is offering the note, and defense counsel has not yet stated why he thinks that the note should be deemed inadmissible, so it is possible that the admissibility decision could hinge on other factors.

-CM 

Hook Me Up: Court Of Appeals Of Indiana Addresses Admissibility Of Polygraph-Related Statements

There's an odd dichotomy under the Federal Rules of Evidence and state counterparts. Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken. Conversely, according to some courts, in some circumstances, a defendant can introduce evidence that he volunteered to take a polygraph test to prove his innocent state of mind. As the recent opinion of the Court of Appeals of Indiana in Nugent v. State, 2009 WL 3415318 (Ind.App. 2009), noted, however this opens the door for the prosecution to present evidence calling into question just how willing the defendant was to take the test.

In Nugent, Terry Wayne Nugent appealed his convictions for two counts of sexual misconduct with a minor and one count of sexual misconduct with a minor. At trial, "Nugent introduced the subject of polygraphs by asking Detective Hunnicutt about his request that Nugent submit to a polygraph. Later, on direct examination, Nugent testified that he had been willing to take a polygraph and was still willing to take a polygraph." Subsequently, the State questioned Nugent about his out of court statements that he was afraid to take a polygraph." After the court overruled Nugent's objection to the question, "Nugent then admitted that he had told two people on separate occasions that he was afraid to take a polygraph examination."

Nugent thereafter appealed, claiming that the State violated his fundamental rights by cross-examining him regarding his willingness to take a polygraph test. The Court of Appeals of Indiana began by laying out the basics of the polygraph analysis, noting that

Our supreme court has explicitly discouraged the admission of polygraph evidence because of the procedure's unreliability combined with its likelihood of undue influence upon a jury's decision....This is why the “[p]roof of the fact that a polygraph examination was taken or refused is, in the absence of waiver or stipulation, inadmissible in a criminal prosecution.”...“A defendant is prohibited from stating he offered to take a polygraph test and the State is equally prohibited from referring to such a test.”...However, a party may “open the door” to the admission of evidence regarding polygraphs in some narrow circumstances.

The problem for Nugent, according to the court, was that it found that when a defendant is allowed to open the door and present evidence that he volunteered to take a polygraph test, the door remains open, meaning the prosecution can respond with "evidence that he may not have been as willing as he claimed." Therefore, the court concluded that "because Nugent first presented the testimony that he was willing to take a polygraph examination, the State was fully justified to elicit an admission from Nugent that he had told two persons that he was afraid to take a polygraph examination."  

-CM

We The Jury: Eastern District Of Louisiana Finds Rule 606(b) Precludes Jury Impeachment On Issue Of Whether Unanimous Verdict Was Reached

Federal Rule of Evidence 606(b) provides 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. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

In Imperial Trading Co., Inc. v. Travelers Property Cas. Co. of America, 2009 WL 2922307 (E.D. La. 2009), the plaintiffs claimed that evidence that the jury failed to reach a unanimous verdict fell under the exception contained in subsection (3). They were wrong.

In Imperial Trading, the United States District Court for the Eastern District of Louisiana

presided over a six-day jury trial regarding an insurance dispute that arose from commercial property damaged by Hurricane Katrina....During closing statements, plaintiffs asked that the jury award (1) over $10 million in damages for defendant's alleged breach of the insurance policy between the parties, (2) bad-faith penalties...for arbitrary and capricious failure to pay over $12 million within thirty days of receiving a satisfactory proof of loss, and (3) further bad-faith penalties...for the $3.6 million in consequential damages plaintiffs allegedly suffered from defendant's failure to pay within sixty days of receiving a proof of loss....On August 13, the jury returned a verdict of $1,757,588 in damages for breach of contract....The jury also awarded penalties under § 22:658 for arbitrarily and capriciously failing to pay $1,250,000 within thirty days of receiving a satisfactory proof of loss. The jury did not award any bad-faith penalties.

Thereafter,

According to plaintiffs, one of the jurors in the case visited plaintiffs' property later that afternoon and spoke to Freddie Bailey and Gabe Corchiani, employees of plaintiffs who testified during trial. During this interaction, the juror explained that she did not agree with the amounts announced in open court, and she did not understand how the amounts were calculated.

The plaintiffs thus moved for leave to interview the three jurors “for the purpose of obtaining sworn statements regarding the failure of the jury to render a unanimous verdict.” According to the plaintiffs, if these jurors confirmed that the jury had not reached a unanimous verdict, they could impeach the jury's verdict under Federal Rule of Evidence 606(b)(3) because there was a mistake in entering the verdict onto the verdict form.

The Eastern District of Louisiana disagreed, noting that Federal Rule of Evidence 606(b)(3) only applieswhen the jurors unanimously agree upon a verdict but then incorrectly enter that verdict on the verdict form. So, if the jury agreed to award the plaintiffs $3 million but accidently wrote $2 million of the verdict form, there could be jury impeachment.

Conversely, the court noted that Federal Rule of Evidence 606(b) precludes jury impeachment on the issue of whether a verdict was unanimous. This conclusion is correct and borne out by the Advisory Committee Note to Federal Rule of Evidence 606(b), which states that the Rule was based upon the common law rule that prevented jurors from testifying that they had reached a compromise verdict, i.e., a decision made by a jury in which the jurors split the difference between the high amount of damages which one group of jurors feel is justified and the low amount other jurors favor, or quotient verdict, i.e., an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be.

-CM

Deflating The Conspiracy Theory: Article Wrongfully Claims That Mother's Admission Will Qualify As Co-Conspirator Admission In Potential "Balloon Boy" Trial

Like its federal counterpart, New Mexico Rule of Evidence 11-801(D)(2)(e) defines as nonhearsay "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." An article in the Examiner yesterday notes regarding the "balloon boy" brouhaha that 

Mayumi Heene told Larimer County investigators that she and her husband, Richard Heene, knew that their 6-year-old son, Falcon, was hiding at their Fort Collins home the entire time, even as police and military scrambled to search for the boy.

The article then concludes that Mayumi's statement to investigators would be admissible in a trial against Richard as a co-conspirator admission. But if you look at the above language from New Mexico Rule of Evidence 11-801(D)(2)(e), I think that you can see why this conclusion is wrong.

Specifically, according to the article,

No doubt Mayumi broke the rule and let the helium out of the balloon in exchange for immunity for the conspiracy charges. Her statements would be admissible as a co-conspirator statement in furtherance of a conspiracy. The officers could certainly testify.

When we look at this conclusion, though, it makes no sense. Initially, it is arguable whether the conspiracy was still active at the time that Mayumi made her statement to investigators. Depending of what you view as the objective of the conspiracy, it could have ended when the balloon fell to earth or when the son was discovered. If either of these were the case, Mayumi's statement was not made during the course of the conspiracy, rendering it inadmissible as a co-conspirator admission. That said, it is arguable that because the goal of the conspiracy was to trick the public and the authorities into believing that there was a "balloon boy," the conspiracy was still active when Mayumi made her statement. Moreover, some courts have found that statements can still qualify as co-conspirator admissions if they are made during the cover up stage of a conspiracy. See, e.g., United States v. Wolf, 839 F2d 1387, 1392 (10th Cir. 1988).

But I am not going to belabor or even resolve this question because it is clear that Mayumi's statement was not in furtherance in the conspiracy. In fact, it was the opposite. When Mayumi made her admission, she was not furthering the conspiracy; she was destroying it. She was giving herself and her husband up. This is the opposite of a co-conspirator admission. If the conspiracy were active when Mayumi spoke with investigators, a co-conspirator admission would have consisted of Mayumi trying to cover up the crime but inadvertently saying something incriminatory. Because Mayumi ostensibly made her statement with the intention of spilling the beans, her statement was not an attempt to further any remaining conspiracy and thus could not qualify as a co-conspirator admission.

-CM