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Friday, August 19, 2011

Free Your Mind: 9th Circuit Finds Harmless Error In Connection With Expert Hypos In Aryan Brotherhood Appeal

It is well established that experts may be asked hypothetical questions on cross-examination, but such questions "must not require the expert to assume facts that are not in evidence." United States v. Stinson, 2011 WL 3374231 (9th Cir. 2011), provides a nice illustration of a prosecutor engaging in misconduct by asking an expert to assume facts not in evidence. It also illustrates the laissez faire approach that the Ninth Circuit has taken with regard to such misconduct on appeal.

In Stinson, John Stinson and Robert Griffin appealed their convictions for RICO conspiracy for operating the Aryan Brotherhood (AB) prison gang, and Stinson appealed his conviction for violent crime in aid of racketeering (VICAR). As noted by the Ninth Circuit,

The AB started in 1964 as a group of white prison inmates who asserted the need to protect themselves and later evolved into an organization designed to traffic narcotics across numerous California and federal prisons. In the early 1980s, the California AB was reorganized such that it was governed by a three-member commission. The commission had final say on AB orders to kill, orders to enforce AB rules, and the AB's business efforts. Griffin was an original member of the commission. By 1990, Stinson had joined Griffin on the commission.

With regard to the charges against Stinson and Griffin,

The RICO count set forth numerous overt acts in furtherance of the conspiracy, including operating the California Commission and 11 murders, attempted murders, or conspiracies to murder. The VICAR counts alleged the murders of Arthur Ruffo and Aaron Marsh for the purpose of maintaining or increasing Griffin and Stinson's positions in the AB.

A key question at trial was whether Griffin had withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997, and, at trial,

Griffin called as an expert witness Robert Ayers, a warden at the Pelican Bay state prison while Griffin was housed there. He testified that, in 1997 or 1998, he read Griffin's confidential file and had an investigation conducted into whether Griffin was still active in the AB. Ayers testified that his opinion from that investigation was that Griffin was no longer active in the AB.

Thereafter,

On cross-examination, the government posed a series of hypotheticals about whether Ayers's opinion would be different if there were more recent evidence in Griffin's confidential file showing AB activity. Some of these hypotheticals concerned matters for which evidence was introduced at trial. Others concerned redacted inmate debriefings not in evidence, though the government later unsuccessfully attempted to introduce them. Others concerned matters that were never introduced in evidence nor even disclosed to Griffin and Stinson.

Subsequently,

The district court told the jury that "if the underlying facts of a hypothetical question are not proved in court then the opinion has no meaning...you are not to assume any of this happened unless it's proved later." In addition to this admonition to the jury during cross-examination, the district court at the close of evidence instructed the jury: "Questions were asked of the witness Robert Ayers on cross-examination about documents he had not seen. In light of the fact that the questions are not evidence, you are to disregard such questions and answers given concerning any documents obviously that he had not read or seen." The court also more generally instructed that "[q]uestions and objections of the lawyers are not evidence."

As noted, Stinson and Griffin were convicted, with the jury returning a special verdict finding that Griffin had not withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997. In addressing their appeal, the Ninth Circuit found that the prosecution engaged in misconduct by posing some of the above hypotheticals, concluding that

All the hypotheticals based on debriefs not admitted in evidence told the jury the substance of inadmissible hearsay. The debriefs were out of court statements offered for their truth—that Griffin had, for example, recently ordered a hit on the so-called Black Dragon Rapist, and therefore had not withdrawn from the AB. The debriefs were not suggested merely to show that documents existed that Ayers had not seen, because the government had already established that Ayers had not seen documents added to Griffin's confidential file after 1998. Nor could the debriefs be disclosed under Fed.R.Evid. 703 or 705, as they were explicitly not the basis of Ayers's opinion. We therefore conclude that it was prosecutorial misconduct to pose questions or hypotheticals to Ayers concerning debriefs that were not admitted in evidence.

That said, the Ninth Circuit found that this error/misconduct was harmless for two reasons: First, the other evidence against the defendants, and specifically Griffin, was strong. I have no problem with this conclusion. Second, 

the district court offered a curative instruction that "you are to disregard such questions and answers given concerning any documents obviously that [Ayers] had not read or seen." The court also instructed that "[q]uestions and objections of the lawyers are not evidence." It further warned the jury during the cross-examination that "you are not to assume any of this happened unless it's proved later." As we have observed, "juries are assumed to follow the court's instructions."

I'm sorry, but I'm not buying this conclusion. The jury had to decide whether Griffin had withdrawn from the AB by August 28, 1997. To defeat this argument, the prosecution engaged in misconduct by telling the jury the substance of inadmissible hearsay, namely that Griffin had, inter alia, ordered a hit on an individual after this date. I know that the presumption is that juries are assumed to follow the court's instructions, but it seems to me that there is no way that a reasonable juror could erase this information from his head. If the Ninth Circuit simply held that there was enough other evidence to convict Griffin, that would have been fine. But I don't see how it could presume that the jurors wiped their minds of such damning evidence.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/08/703-us-v-stinson-f3d-2011-wl-3374231ca9-cal2011.html

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