EvidenceProf Blog

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

Friday, May 11, 2012

Out of Town

I will be out of town for the next several days and will resume posting when I return next Wednesday.


May 11, 2012 | Permalink | Comments (0) | TrackBack (0)

North Carolina's Racial Justice Act, Social Framework Evidence, Ferris Bueller & Quantifying Criminal Law

On April 20th, Superior Court Judge Greg Weeks issued a landmark ruling. That ruling, the first issued after application of North Carolina's Racial Justice Act, found that race was a significant factor in the prosecution's use of peremptory strikes in the trial of Marcus Robinson, an African-American defendant. Accordingly, Judge Weeks vacated Robinson's death sentence and replaced it with a sentence of life imprisonment without the possibility of parole.

North Carolina's Racial Justice Act, enacted in 2009, is the second of its kind in this country, coming on the heels of Kentucky's Racial Justice Act, which took effect in 1998. "But [the] American Bar Association said in a report it was unclear exactly how often [Kentucky's Act] has been used except for during the 2003 trial of an African-American man accused of kidnapping and killing his ex-girlfriend, who was white." Indeed, all indications are that Kentucky's Racial Justice Act is little more than a dead letter.

Conversely, in North Carolina, Marcus Robinson's life was spared a mere 3 years after the passage of North Carolina's counterpart, and "[n]early all of North Carolina‚Äôs 157 death row inmates have filed claims under the act." So, what explains the difference? The answer is the different types of evidence admitted under the respective acts, and, in this post, I want to make two points about this distinction.

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May 11, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 10, 2012

Forgive Me Father: Court Of Appeals Of Michigan Finds Cleric-Congregant Privilege Applied Despite Mother's Presence During Confession

A nine year-old victim is allegedly sexually assaulted by her 15 year-old cousin on two occasions. When the alleged victim is 11 year-old, she hears a church sermon on purity and tells her mother about the assaults. The alleged victim's mother and father later contact the police as well as the pastor of the Baptist Church that they attend. The pastor then contacts the mother of the defendant and asks her to bring him to the church as soon as possible for a meeting. The mother and the defendant, both parishioners at the church, meet with the pastor, with the defendant confessing to the assaults. Is this confession covered by Michigan's cleric-congregant privilege, or is it admissible because (a) the pastor initiated the conversation; and/or (b) the mother was present for the confession? Let's take a look at the recent opinion of the Court of Appeals of Michigan in People v. Bragg, 2012 WL 1605259 (Mich.App. 2012).

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May 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 9, 2012

Things To Do In Denver When You're Dead: Court Considers Appeal Of Woman Represented By Fake Attorney

According to an article in the Denver Post, "[e]ver since Gwen Bergman learned that the man who represented her during her murder-for-hire trial was a fake lawyer, she has been fighting to have her conviction tossed out." Specifically, "Bergman was convicted in May 2008 of trying to hire a hit man to kill her son's father." This conviction came after a bench trial where Bergman was represented by Howard O. Kieffer, whom Bergman and her family hired, not knowing he was an ex-con who never attended law school." 

After Bergman was convicted, "a Denver Post investigation uncovered Kieffer's true identity and notified Bergman that he was a fake." Accordingly, Bergman has asked that he conviction be thrown out, and "U.S. District Judge William J. Martinez this week held a two-day evidentiary hearing to decide whether Bergman's Sixth Amendment right to counsel was violated." According to the Denver Post article,

A mistrial would seem a likely outcome for a person who didn't have a real lawyer, but the government says Bergman had adequate representation during the trial because Kieffer hired a licensed attorney to help him with the case.

That attorney, "EJ Hurst II, testified this week that he wasn't competent to represent [Bergman]." He said he was acting only in a paralegal capacity and that he agreed to a low hourly wage to do research."

"Would you say you were competent to try a federal criminal case?" asked Bergman's attorney, Phil Cherner.

"I would not," Hurst said. "I only had a law-school course on federal rules of evidence."

"Did you provide effective assistance?" Cherner asked.

"I do not believe I provided competent counsel," Hurst said.

So, will Bergman win, or will the court "put a dagger in the hearts of the public that holds the trust in our courts," as Bergman's attorney put it?

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May 9, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 8, 2012

Jenny Carroll's The Resistance Defense, Alford Pleas & Conscientious Objection

Broken skyline, movin' through the airport
She's an honest defector
Conscientious objector
Now her own protector

Tom Petty, "Time To Move On"

A few weeks ago, I posted an entry, prompted by an episode of "The Good Wife," about the much maligned Alford plea. With an Alford plea, the defendant pleads guilty but maintains his innocence, and it is for this and other reasons that the plea is disfavored by prosecutors and the criminal justice system. In the post, I concluded that

Prosecutors are told to avoid Alford plea and a number of states ban them. But given the realities of the current American justice system, maybe we should embrace them. The public defender system is in a state of emergency, and it means that the bulk of defendants charged with crimes cannot present a reasonable defense....

Obviously, there are a plethora of reasons to be uncomfortable with the Alford plea, but there are also a plethora of reasons to be uncomfortable with the current state of criminal defense. And maybe a proliferation of Alford pleas will force us to confront that reality.

I see a recent post by Jenny Carroll on Concurring Opinions and her forthcoming article, "The Resistance Defense," as spiritual cousins to this claim regarding Alford pleas. In turn, I see that the resistance defense as the spiritual cousin to conscientious objection. 

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May 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, May 7, 2012

Prejudging: 6th Circuit Finds No Problem With Judge Arriving At Daubert Hearing With Opinion Already Written In Fen-Phen Appeal

There's a certain law review that we joke about at my law school. Whenever any of us submit to this law review, we invariably receive an e-mail response within the hour thanking us for our submission but informing us that after careful consideration our article was not selected for publication. Either the members on this law review are the speediest of speed readers semester-in and semester-out, or our submissions go straight from our e-mail accounts into the law review's steel cylinder (e-cylinder?). Of course, in the grand scheme of things, it doesn't take much to see that the problems of three law professors don't amount to a hill of beans in this crazy world. But what if basically the same thing happened to lawyers after a Daubert hearing? That was the question addressed by the Sixth Circuit in its recent opinion in United States v. Cunningham, 2012 WL 1500180 (6th Cir. 2012).

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May 7, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, May 6, 2012

Richard Linklater's Bernie, Sudden Passion, Dissociative Episodes & Future Dangerousness

Richard Linklater is one of my very favorite film directors of all time. Probably my favorite line about Linklater's movies comes from an Entertainment Weekly review of Terminator 3:

Sure, there could be a movie in which John Connor and his pals sit around and talk about how there almost were Killer Robots, and debate where John's father came from, and then maybe take some bong hits and play Sega or something. But that would be, like, a Richard Linklater movie.

Many of Linklater's movies are, indeed, extended conversations, beginning with his breakthrough film, 1991's "Slacker," in which we follow character after character (and I mean character) through the streets of Austin, Texas. A decade later, Linklater would make the ambitious "Waking Life," essentially a rotoscoped, fantastical version of "Slacker." Linklater's "SubUrbia" and "Tape" are both filmed plays light on action and heavy on dialogue, the latter taking place in real time in a hotel room. And then there's "Before Sunrise," in which Ethan Hawke's Jesse and Julie Delpy's Celine fall in love while talking through the streets of Vienna. Nine years later, they pick up the conversation again in the bittersweet "Before Sunset." Looking ahead, Linklater's forthcoming Boyhood project, shot over the course of 12 years, promises to be a truly extended conversation about adolescence and the shifting mother-child relationship.

Of course, Linklater is no stranger to more plot-driven, studio fare. He hit a home run with the Jack Black musical comedy, "The School of Rock," but ironically, given his love of baseball, struck out with his remake of "The Bad News Bears." (The only Linklater movie I didn't enjoy). 

Some of Linklater's best work has come when he's made films based upon real life events in his home state of Texas. "Dazed and Confused," commonly referred to as the Gen X "American Graffiti,"  sprang from, as Linklater has said, hearing a song from ZZ Top's "Fandango!" which instantly propelled him back to 1976, cruising around his hometown. And then there's "The Newton Boys," a jovial telling of the story of the titular brothers, who hailed from Uvalde County Texas and were the most successful bank robbers in U.S. history. Later, Linklater returned to his love of baseball in "Inning by Inning: Portrait of a Coach," a philosophical documentary about Auggie Garrido, the baseball coach at the University of Texas and the winningest coach in NCAA history. That takes us to Linklater's most recent offering on the silver screen, "Bernie."


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May 6, 2012 | Permalink | Comments (0) | TrackBack (0)