EvidenceProf Blog

Out of Town

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

-CM

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’s 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.

As noted in Seth Koch and Robert P. Mosteller, The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031, 2116-18 (2010),

differences between the North Carolina RJA and the Kentucky legislation of the same name reveal how the North Carolina RJA avoids indirectly limiting the defendant’s use of statistical proof. The Kentucky statute indirectly limits the defendant’s use of statistical proof by its requirement of particularity in proof linking the statistical evidence to the defendant’s specific case. By contrast, the North Carolina RJA focuses the particularity of proof on how statistical evidence supports "a claim that race was a significant factor in decisions...in the county, the prosecutorial district, the judicial division, or the State." It requires the defendant "to state with particularity how the evidence supports" the claim that race was a significant factor in decisions of the prosecutor or jury in any of these geographical areas at the time of decision, focusing the particularity requirement on proof of the impact of race in one of those areas. Thus, compared to the Kentucky statute, the North Carolina RJA imposes a particularity requirement regarding proof as to the four relevant geographical areas and not the individual defendant’s case.

The Analogy to Social Framework Evidence

The first point that I want to make is that the difference between the RJAs in Kentucky and North Carolina somewhat mirrors the opposing points of view with regard to social framework evidence in sexual discrimination cases. Social framework evidence consists of using "general research results...to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case." 

[A] “social framework analysis...uses general conclusions from tested, reliable, and peer-reviewed social science research as a context for educating fact finders about the case facts at hand.”…The analysis “provides an assessment of general causation in a research area in order to inform the fact finders about more specific causation issues associated with a particular case."

And, as I wrote over on Feminist Law Professors, three academics argued 

in a recent essay "that social framework  testimony as it is commonly accepted by district courts should be categorically disallowed," i.e., "that courts should never let social scientists link general social science findings to an employer’s specific workplace policies unless the proffered expert has conducted his or her own empirical research in that particular workplace."

In that post, I discussed an essay, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L. Rev. 37, 39 (2009), that reached the opposite conclusion. I then used courts' treatment of syndrome evidence as an analogy that would support the admission of such framework evidence. Specifically, I noted that courts routinely allow prosecutors to (1) call expert witnesses who have no knowledge of victims, (2) ask those experts hypotheticals drawn from the facts of cases; and (3) ask those experts whether the hypothetical victims' behavior was consistent with a particular syndrome such as rape trauma syndrome or battered spouse sydrome. If such syndrome evidence is admitted without the expert interacting with the victim, why shouldn't social framework evidence be admitted even if the expert hasn't done empirical research into the particular workplace?

And, I would argue, if both of these types of evidence are admitted, why shouldn't an expert's empirical evidence regarding peremptory strikes of African-American jurors in a jurisdiction be admissible regardless of the expert's level of interaction with the defendant's specific case? Unlike Kentucky, North Carolina accepts such evidence, which is why Robinson was able to present evidence from the terrific recent study, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, by Michigan State University School of Law Professors Catherine M. Grosso and Barbara O'Brien as well as University of Iowa Professor George G. Woodworth.

The article is based upon a study the authors conducted in which they "examined jury selection in at least one proceeding for each inmate who resided on North Carolina’s death row as of July 1, 2010, for a total of 173 proceedings." According to the authors,

We analyzed the role of race in strike decisions in two phases. First, we compared the rate at which prosecutors struck eligible black venire members to the rate at which they struck eligible venire members of other races. We then analyzed the role that characteristics other than race played in prosecutors’ decisions to strike or pass potential jurors, and whether any of those characteristics could account for racial disparities in who gets struck.

Here are two of the authors' main findings. First, "[a]s seen in Table 1, across all strike-eligible venire members in the study, prosecutors struck 52.6% (636/1,208) of eligible black venire members, compared to only 25.7% (1,592/6,185) of all other eligible venire members."

Second, as seen in Table 4, "[t]he disparities in prosecutorial strike rates against eligible black venire members persist even when other characteristics one might expect to bear on the decision to strike are removed from the equation."

Given these statistics, it is unsurprising that Judge Weeks vacated Marcus Robinson's death sentence, and it would not be surpising at all if a good number of Robinson's fellow inmates find similar success. I spoke with professors Grosso and O'Brien, and they informed me that every inmate seeking a Racial Justice Act hearing is relying upon their article, which paints a pretty indisputable picture of a pattern of peremptory strikes based on the race of prospective jurors.

In other words, the empirical picture that the article paints is the exact opposite of the current framework derived from Batson v. Kentucky, in which prosecutors can rebut an inference that they engaged in the racially motivated use of peremptory strikes merely by pointing to race neutral reasons for the strikes. And, like employers who can frequently explain away alleged gender discrimination by construing sexist comments as "stray" comments, prosecutors have proven adept in claiming that their use of peremptory strikes against African-American jurors in individual cases has been based upon race-neutral reasons. As noted by Jeffrey Bellin and Junichi P. Semitsu in Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1092 (2011), between 2000 and 2009, federal courts reversed or remanded less than eleven percent of trial court denials of Batson challenges.

That's where larger empirical data such as the above article comes into play, just as social framework evidence allowed sexual discrimination plaintiffs to achieve a greater level of success after decades of failure. The evidence literally frames the issue, allowing the judge to step back from the individual case before him and see the big picture. It is basically the inverse of the scene of Cameron staring at La Grande Jatte in "Ferris Bueller's Day Off."

 

As the authors told me, North Carolina's Racial Justice Act is doing what Batson should be doing. 

The Quantification of Criminal Law

This dovetails into the second point I want to make, which is that North Carolina's Racial Justice Act brings me back to a back-and-forth that Erica Goldberg at Concurring Opinions (see here, here, here, and here) and I had a few weeks ago. That discussion started with Goldberg proposing a quantification of probable cause and ended with me arguing for quantification across the board:

Quantifying probable cause. Quantifying reasonable doubt. Quantifying the accuracy of polygraphs. Quantifying the accuracy of cross-racial identification. Quantifying the accuracy of excited utterances.

Let's call it applying Moneyball to the law. For years, baseball teams relied upon scouts telling them to draft players, like Billy Beane, who just looked like baseball players. But these players didn't always hit like baseball players, or, in Moneyball terms get on base like baseball players (or, more specifically, have a high OPS like baseball players). The Oakland A's exploited this market inefficiency by drafting players loved by statistical models but hated by the eye test. Eventually, the rest of MLB caught on, which is why the A's fortunes declined precipitously after the publication of Moneyball.

Well, guess what? The legal profession is currently like the rest of MLB pre-Moneyball. When Defendant moves to suppress evidence based upon an alleged illegal search by Officer, Officer points to facts A, B, and C that led him to develop "probable cause." The judge finds those facts plausible and denies the motion to suppress. As with prosecutors under Batson, officers can be pretty convincing. According to the late, great William J. Stuntz in Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 936 (1991), the government prevails in 80% of suppression hearings. And, of course, keep mind that defendants move to suppress in less than 10% of cases, see id., a subset of cases in which probable cause is probably less "probable" than in the typical case. 

But what if we pulled back and looked at the situation at a degree of abstraction? What if the search were a warrantless search, and such searches only hit paydirt 12% of the time? What if fact A were an anonymous tip, with such tips rarely leading to fruitful searches? What if fact B were a cross-racial identification, a notoriously unreliable source of information? And what if fact C were a "hit" by a drug sniffing dog with a history of false positives? Moreover, what if the police department conducting the search had a very low success rate on searches? And what if the same applied to the individual officer conducting the search?

You get the point. By taking a step back and looking at the big picture, we might see something very different than the one point of information we see in an individual case. That's certainly the argument made by Max Minzner in Putting Probability Back into Probable Cause, 87 Tex. L. Rev. 913, 914 (2009), and it is something that courts are not doing now. 

What this also means is that courts are not comparing the use of the same evidence in different contexts. As I noted in a prior post, courts allow prosecutors to use polygraph evidence to prove probable cause without hesitation, but they per se preclude defendants from using that same evidence to create reasonable doubt even though it should be easier to create reasonable doubt than it is to create probable cause. By quantifying these different standards, we would see that.

So, why don't we? I think that judges are stuck in the past and the old way of thinking about statistics. The classic case taught in law school to show why probabilistic evidence is inadmissible at trial is People v. Collins, 438 P.2d 33 (Cal. 1968), the infamous case in which an African-American man and a blonde woman with a ponytail in a yellow car committed a robbery. Malcolm Collins was charged with the crime and was an African-American man who lived with a blonde woman and owned a yellow car. The prosecution "proved" Collins' guilt by having a mathematics professor testify to the following probabilities: 

Characteristic	Individual Probability
A.	Partly yellow automobile	1/10
B.	Man with mustache	1/4
C.	Girl with ponytail	1/10
D.	Girl with blond hair	1/3
E.	Negro man with beard	1/10
F.	Interracial couple in car	1/1000

Of course, the Supreme Court of California tossed Collins' convictions based upon this evidence, and I think that many judges today think that all statistical evidence is as flawed as the evidence used in Collins. But as the authors of the North Carolina study/article noted, statistics are the entire basis of forensics, with DNA evidence playing a huge rule in convicting some defendants and exonerating others. When used correctly, probabilistic evidence can complement other types of evidence during a trial or appeal and allow the decisionmaker to see a more complete picture. The authors contend that those in the legal system need to keep working to ensure that we're not afraid of statistics and other probabilistic evidence. After all, isn't that the promise of Daubert?  

-CM

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).

In Bragg, the facts were as stated above, with Michigan's cleric-congregant privilege, MCL 600.2156, providing that

No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.

The Court of Appeals of Michigan noted that there several requirements for the privilege in MCL 600.2156 to apply, many of which the defendant easily satisfied. First, the subject communication must have been "necessary to enable" the pastor "to serve as such...member of the clergy." According to the court, "a communication is necessary to enable a cleric to serve as a cleric if the communication serves a religious function such as providing guidance, counseling, forgiveness, or discipline." 

Second, the communication must be made to the cleric in his "professional character," which "requires the communication to be directed to a clergyman in his or her capacity as a spiritual leader within his or her religious denomination."

Third, the communication must not have been "made in the course of discipline enjoined by the rules or practice of a particular denomination." This restriction is in place to "avoid resolving controversies about a religion's or church's internal governance or operating procedures."

The Court of Appeals of Michigan easily found that these three elements were satisfied and thus that the cleric-congregant privilege preliminarily applied. This left the court with two questions.

The first was whether the privilege did not apply because the pastor initiated the conversation. The court, however, found this fact to be irrelevant because thr privilege extends

to covered "communications," not just confessions. The term "communication" in no way suggests that the congregant must initiate the conversation in order for the privilege to apply.

The second was whether the presence of the mother during the confession rendered the privilege inapplicable. The court found that it did not because Michigan courts have

rejected blanket policies under which the presence of a third party automatically waives a privilege. In Basil,...the Court refused to deem the doctor-patient privilege waived by the presence of the patient's wife, holding "[t]he presence of one sustaining an intimate family relation with the patient when consulting a physician should not and does not waive the privilege" In relation to the attorney-client privilege, this Court has upheld the confidential nature of a communication when the minor client's agents (her parents) were present during all meetings.

The court found that the same logic applied to the case before it, with the mother "sustain[ing] defendant during this difficult conversation."

-CM

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?

It seems pretty clear to me that Bergman will win, but let's dig into the details. Judge Martinez conducted the hearing after the case was remanded to him by the Tenth Circuit's opinion in United States v. Bergman, 599 F.3d 1142 (10th Cir. 2010). If I'm reading Bergman correctly, Bergman was initially found incompetent to stand trial before later being deemed competent to stand trial. At both of these competency hearings, Bergman was solely "represented" by Kieffer. Thereafter, Kieffer brought in Hurst before the start of Bergman's bench trial, with the exact level of Hurst's participation being unclear.

Accordingly, the Tenth Circuit found that Bergman's Sixth Amendment right to counsel was violated at the competency hearings. And it did so by relying upon Solina v. United States, 709 F.2d 160 (2nd Cir.1983), to "adopt a narrow per se rule of ineffectiveness where a defendant is, unbeknownst to him, represented by someone who has not been admitted to any bar based on his 'failure to ever meet the substantive requirements for the practice of law.'" In other words, a defendant like Bergman is automatically denied the effective assistance of counsel when she is represented by someone who was never a lawyer (although the same might not be the case if she is represented by, say, a Jeff Winger).

The Tenth Circuit, however, did not decide whether Bergman was denied the effective assistance of counsel at trial, instead, finding that "[f]urther development of the record is required...." That development was part of what went on during Judge Martinez's evidentiary hearing, which was directed toward, inter alia, gathering "additional information regarding the extent of Hurst's representation of Bergman...." Those findings could lead to a new trial based upon Bergman not receiving the effective assistance of counsel at trial.

Of course, the district court could also grant a new trial based upon Bergman's Sixth Amendment right to counsel being violated at the competency hearings. And, according to a dissenting judge in Bergman, this violation alone should have been enough to award her a new trial.

According to the majority, though, to award Bergman a new trial, it also had to "determine whether Bergman's Sixth Amendment violation resulted in the district court erroneously concluding that she was competent to stand trial." Therefore, another reason for the remand was to determine whether the district court "can make a retrospective competency determination," looking at the following factors:

(1) the passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial.

And the Tenth Circuit reached this conclusion despite acknowledging that it should permit a retrospective competency determination in only limited circumstances. My response would be that one of those circumstances should not be when the defendant is represented by a fake attorney and was already found incompetent to stand trial before later being declared competent to stand trial. I have every expectation that Bergman will be granted a new trial, but, if she is not, I hope that the Tenth Circuit reconsiders the issue on appeal.

-CM 

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. 

In her post, Carroll, a professor at the Seton Hall University School of Law, notes that

Last Saturday, Khalid Sheikh Mohammed ("KSM"), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned.  Instead of pleading, the defendants resisted.  KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety.  The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

Carroll then notes that

Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new.  The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate.  A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself.  In my forthcoming article, The Resistance Defense, I examine the implications of this defense.  As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law.  First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value.  The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome.  If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow.  Second, these procedural rights have a substantive component.  They help to define notions of guilt and appropriate punishment.  If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.

In her article, Carroll points out that "American legal history is replete with stories of the resistance defense" being used by defendants ranging from abolitionist John Brown to anti-World War I advocate Eugene V. Debs to Fundamentalist Church of Jesus Christ of Latter-Day Saints President Warren Jeffs. The resistance defense can take various forms. At trial, Brown "rose only to express outrage at the proceeding itself." Debs "did not contest the factual basis of the charge" against him but instead "sought to put the Espionage Act itself, and the government’s efforts to enforce the act, on trial." And Jeffs initially did not participate in his trial at all (not giving an opening statement or cross-examining witnesses) before engaging in the most perfunctory of defenses.

According to Carroll, by engaging is a resistance defense,

These defendants, often at times of crisis in the nation’s social or political identity, seek to put the system itself on trial. In the context of the criminal court, they create a singular forum for their own, previously excluded narrative. Through their defense of resistance, they seek to compel acknowledgment of the procedural and substantive shortcomings of the law that failed to account for their story and so their existence. Their defense pushes the law to reckon with the previously unimagined, and so to be transformed at the most fundamental level — at the intersection of the law and the governed....

In their resistance defenses they challenged the ability of the law and the system it supported to account for their lives and stories — and so the lives and stories of those like them living outside the boundaries drawn by the law. They rejected any possibility that their arrests, convictions or sentences could be legitimate or properly sanctioned by "mere"procedural protections. They construct instead a story of the government and the law as so riddled with deficiencies that even those devices designed to check its power are tools of oppression. Whether in silence or through outbursts, they tell a story of resistance and suppression that transcends their time and their causes to challenge the very conceptualization of the system and the law.

Carroll offers two primary reasons that the community should care about the resistance defense, the first being that

the "decision" to relinquish the very check the system creates on government power tells a story. It may be a commentary on the truly overwhelming nature of the government’s power. Even the right to speak truth to that power pales in the face of the often inevitable outcome (conviction) and the daunting consequences of daring to speak (loss of a discount for cooperation). Perhaps it is a commentary on the precision of the government’s exercise of its prosecutorial discretion, which ensures that only the truly guilty face accusation. But perhaps it is the hopelessness of the system itself. Defendants find themselves accused by an all powerful executive branch, only to be appointed a guardian of their rights by a judicial branch (in the form of a public defender) who, crippled by overwhelming case loads and the three branches’ reluctance to grant resources to a defense, may have little choice but to recommend a triage approach to the case, regardless of the defendant’s narrative. Even with the benefit of a truly zealous advocate, a defendant may find his narrative constrained and limited in the telling such that the right feels illusory at best, a sham at worst.

This reason is what I see as the main analogue between my argument about Alford pleas and Carroll's contentions about the resistance defense although those giving Alford pleas opt in (by taking the plea, albeit with reservation) while those asserting a resistance defense opt out. But Carroll also offers a second reason to be interested in the resistance defense, which is that

In a system that depends on narratives, the decision to accept the right to a defense is a moment of enormous possibility when the defendant and the citizen juror may seek to redefine the role of the state either microcosmically (in this one case, and in regard to the is one defendant) or macrocosmically (when the case garners national attention and forces a shift in the political philosophies of the nation). Either way, the defense offers a moment when ordinary people, upon hearing a defendant’s story, decide what they will accept from the government in their own lives. The narrative may be limited, but its presence matters. Resistance defendants challenge the notion that defendant’s narrative can and should be constructed by the state. In their resistance they push a story that simultaneously must and cannot be told, at least not in the courtroom. In this they raise doubts about the value of the very system that would accuse, prosecute and punish them. For we non-defendants, they raise a red flag that system, at least for some, is broke or gone awry in its efforts to construct all stories before us. In this moment of doubt, is perhaps the greatest possibility for the law.

This argument provides a nice segue into my argument that the resistance defense is a spiritual cousin to conscientious objection. In a sense, the analogy has already been made. As Carroll notes, "Jeffs saw himself as falling within a long tradition of people who break secular laws to maintain their religious faith," such as "[r]eligious adherents [who] refuse to fight wars (or even register for drafts)." And the very basis for the charged against Debs was "that Debs's remarks implied that he approved of conscientious objection to the draft in violation of the Espionage Act of 1917." J.M. Balin & Sanford Levinson, The Canons of Constititional Law, 111 Harv. L. Rev. 963, 978 (1952).

Of course, the Supreme Court eventually found a greater right to conscientious objection in its landmark opinion in Gillette v. United States, 401 U.S. 437 (1971), concluding that conscientious objectors can object on non-religious grounds. A few months later, in Clay v. United States, 403 U.S. 698 (1971), the Supreme Court would reverse Muhammad Ali's conviction for refusing to be inducted into the U.S. Armed Forces. The voices of the conscientious objectors and the attention given to Ali changed the way that society looked at war and forced the Court to legitimize their claims. And their claims function much the same as those claiming the resistance defense: Just as defendants asserting a resistance defense reject any possibility that their arrests, convictions or sentences could be legitimate or properly sanctioned by "mere" procedural protections, conscientious objectors claim that war and their participation in it can never be legitimized. Indeed, one of the holdings in Gillette was that conscientious objectors have to object to all wars and not just particular wars. At first, conscientious objectors were still forced so serve in the military in noncombat roles; now, they can avoid service altogether.

It's no stretch to say that conscientious objectors played a significant role in ending the draft, with President Nixon incorrectly thinking it would shut them (and other war protesters) up. See WIlliam A. Kamens, Selective Disservice: The Indefensible Discrimination of Draft Registration, 52 Am. U. L. Rev. 703, 731 (2003). Meanwhile, the military, "[h]aving found that crushing dissent by way of court-martials could be counterproductive, costly, and highly embarrassing,...became much more willing to grant conscientious objector status to servicemen who requested it." Robert N. Strassfeld, "Lose in Vietnam, Bring the Boys Home," 82 N.C. L. Rev. 1891, 1908 (2004).

Of course, that leaves the question of what the justice system is to do with those who seek to assert the resistance defense. Carroll presents three option:

One possibility is to limit the resistance defense to those stories that flow from some other constitutional narrative. This construction recognizes the defense only to the extent that the defendant’s story is able to link his purported belief system to those rights assigned value by the Constitution itself. For example, if a defendant can couch his argument in terms of free speech, assembly or religious exercise, his resistance defense will be recognized, and his narrative allowed. Other narratives, which are not linked to some fundamental right that is assigned constitutional value, would continue to suffer exclusion....

A second possibility would be to allow the defendant to present any justification, excuse or ideology in response to the state’s accusation. This is a fluid construction of the resistance defense unfettered by legal boundaries. The defendant could tell his story in the language he chose, drawing on whatever explanation, excuse or justification that he deems relevant to the jury’s consideration of his guilt. The defendant could create a true counter- narrative that stands outside the state’s construction of its own narrative or the law....

At the other end of the spectrum, we might disallow the defense altogether or at least refuse to provide a meaningful way for defendants to make the argument. In many ways, this is to maintain the status quo in which the resistance defense falls outside those recognized and designated legal defenses and as such is never presented to the jury. In this construction (or attempted destruction) of the defense, there is a recognition that the sphere of the criminal trial and courtroom is limited. There are stories that cannot be told in the rooms in which a defendant’s guilt is decided.

In closing, Carroll frames the issue much like the military likely framed conscientious objection during Vietnam in deciding to more freely grant conscientious objector status rather than increase the number of court-martials:

Admittedly refusing to recognize the defense will likely create a more efficient system, but it would be a mistake to confuse a failure to recognize the defense with its complete banishment. Just as they do now, defendants will rise in courtrooms across the country and seek to present their counter-narratives. When the court moves to exclude their stories, they will respond in the only way they can: they will actively resist. Whatever efficiency is gained by seeking to block the narrative, its emergence through resistance will raise the recurring questions of the ability of the law to expand when confronted with stories that confound its original meaning. The guerilla-like presence of the untold story in the courtroom undermines what is gained by allowing narratives at all: that the law is more than a system of rules, it is a fluid body that draws meaning from the lives to whom it is applied. Without this mobile construction of the law, the law’s legitimacy, and the legitimacy of the systems that flow from it, become increasingly dubious.

-CM

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).

In Cunningham, 

Shirley Cunningham, Jr., and William Gallion were two of three Kentucky lawyers who represented several hundred Kentucky clients in a mass-tort action against the manufacturer of the defective drug "fen-phen." They settled the case for $200 million, which entitled them under their retainer agreements to approximately $22 million each in attorney fees. But rather than limit themselves to what they had contractually earned, Cunningham and Gallion concocted a fraudulent scheme to take from their clients almost twice that amount. The scheme did not work out as planned: Cunningham and Gallion were caught, subsequently disbarred from practicing law in Kentucky, and indicted on one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343 and 1349.

After a mistrial, a superseding indictment was issued that again charged Cunningham and Gallion with one count of conspiracy to commit wire fraud, but added eight counts that specifically detailed the wire communications that were part of the scheme. The two men were convicted on all counts at their second trial. 

After they were convicted, Cunningham, Jr. and Gallion appealed, claiming, inter alia, that the district court erred in precluding the testimony of Richard L. Robbins, an expert in litigating complex business matters, including class actions. Robbins testified at the first trial and would have testified at the new trial regarding

the responsibility to provide notice to the putative class members; whether the class action was properly decertified; whether Mr. Gallion could properly hold back settlement funds for future contingencies pursuant to a settlement agreement; the propriety of attorney fees in awards in class actions or mass plaintiff actions; and whether a "cy pres" distribution of settlement funds is an appropriate practice in class action [sic].

The district court, however, precluded Robbins from testifying after a Daubert hearing...right after the Daubert hearing. This timing was one of the grounds for the defendants' appeal. The first of the grounds for the defendants' appeal was

the timing of the district court's memorandum opinion, which was released a few minutes after the Daubert hearing had concluded. According to the defendants, the district court erred by arriving at the hearing with a written opinion already in hand, particularly because there was no expectation that the judge would immediately issue a ruling at the end of the hearing.

The Sixth Circuit, however, found no problem with this timing, concluding that,

even if, under such circumstances, the better practice is for judges to prepare their written opinions after having had the benefit of hearing the parties orally argue their positions, this does not mean that the district court erred by not doing so here. The defendants cite no authority for the proposition that a district court's decision to prepare an opinion in advance of a hearing is grounds to set aside that opinion on appeal. This proposition seems especially dubious in the context of a Daubert hearing, a hearing that this court has held is not even required where "the record on the expert testimony was extensive, and the Daubert issue was fully briefed."

Moreover, the Sixth Circuit found that

The district judge here presumably used the Daubert hearing as a final opportunity for the defendants to dissuade him from the analysis set forth in the tentative opinion, an endeavor in which they were obviously unsuccessful. Their lack of success, however, provides them with no basis to set aside the ruling. 

Really? The Sixth Circuit's opinion seems tone deaf to me. Sure, the district court didn't need to hold a Daubert hearing, but once it decided to hold one, didn't it have an obligation to go into the hearing with an open mind? How much time did defense counsel spend preparing for the hearing, and at what cost to the defendants? If the defendants or defense counsel knew that the judge had already reached a conclusion regarding the (in)admissibility of Robbins' expert testimony, would they have even asked for a Daubert hearing?

And I don't care about what the Sixth Circuit presumed that the district judge did. Several cognitive biases, including the confirmation bias, would tell us that the pre-written opinion meant that the judge was not conducting the hearing in a neutral manner. The fact that the judge issued his pre-written opinion minutes after the hearing only corroborates this claim.

Finally, it is not like the judge was considering the admissibility of something consistently deemed inadmissible like polygraph evidence. Robbins was allowed to testify at the first trial and was seeking to present essentially the same testimony at retrial. The district court's perfunctory Daubert hearing, in my mind, was insufficient to withstand appellate scrutiny.

(Hat tip to Richard Underwood for the link)

-CM 

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."

 

According to Wikipedia,

Bernie is based on a 1998 Texas Monthly magazine article by Hollandsworth, "Midnight in the Garden of East Texas," that chronicles the 1996 murder of 81-year-old millionaire Marjorie Nugent in Carthage, Texas by her 39-year-old homosexual companion, Bernhardt "Bernie" Tiede. Nugent was shot in the back four times with a rifle by Tiede, who confessed to the 1996 murder. According to the Amarillo Globe-News, police searched Tiede's home and found videotapes showing Tiede "engaging in homosexual acts" with local married men. Tiede admitted the murder to police in August 1997 and was sentenced to life in prison.

Like most Linklater films, "Bernie" has received effusive praise from critics. It currently has an 84% fresh rating on Rotten Tomatoes, with 91% approval from the cream of the crop critics. According to LA Weekly,

Richard Linklater's Bernie is the rarest of rarities: a truly unexpected film. It might be classified as a black comedy, for it deals with the murder of an 81-year-old woman in a fashion that is not exactly tragic. But unlike most movies that fall under that label, it never indulges in flagrant, naughty posturing, nor does it offer the viewer a firm, comfortable point of view from which to sit back and bear witness.

And Jeffrey Wells was quite smitten with it as well, writing that

Bernie says something about human nature that everyone will recognize as rock solid when and if they see it. Which is basically thatfeelings and likability rule, that Americans trust beliefs more than facts, and that we're governed less by laws than emotions. You can say "yeah, I know that without seeing a film" but the observation sinks in extra-deep after hanging with Richard and Bernie.

"Bernie" is currently out in limited release, and it hasn't made it to the Chicago area, so I haven't seen it yet. But I have read Tiede v. State, 2002 WL 31618281 (Tex.App.-Tyler 2002), the opinion of the Court of Appeals of Texas, Tyler, rejecting Tiede's appeal of his life sentence.

Specifically, the procedural history in Tiede was as follows:

-Tiede was convicted of murder and sentenced to life imprisonment;

-Tieda appealed his conviction and sentence, with the Court of Appeals of Texas, Tyler, affirming his conviction but reversing and remanding for a new hearing on punishment based upon the trial court's exclusion of Tiede's expert's proffered testimony;

-The Court of Criminal Appeals of Texas vacated that judgment and remanded the cause for reconsideration of the character and harmfulness of the trial court's exclusion of Tiede's expert's proffered testimony; and

-The Court of Appeals of Texas, Tyler, then found harmless error and affirmed Tiede's sentence.

The expert testimony at issue was as follows:

At the punishment stage of his trial, [Tiede] offered the expert testimony of Dr. Frederick Gary Mears, a clinical psychologist and neuropsychologist. Though Dr. Mears was allowed to testify generally about clinical disorders involving "dissociation," he did not testify regarding his examinations of or opinions about [Tiede]'s mental state. After Dr. Mears completed his testimony the defense made an offer of proof showing that Dr. Mears was also prepared to testify that: 1) regarding the issues of "sudden passion" and "adequate cause," the stress of his relationship with Mrs. Nugent and the demands she placed on him degraded or diminished [Tiede]'s capacity for cool reflection; 2) regarding [Tiede]'s future dangerousness, [Tiede] posed no danger to anyone in the prison system; and 3) regarding [Tiede]'s behavior after the offense, [Tiede] had experienced certain dissociative episodes in which he mentally separated from the act of killing Mrs. Nugent. 

In finding that the exclusion of this proferred expert testimony was harmless, the Court of Appeals reached the following conclusions:

Sudden Passion

"The record shows that after forming a close relationship with Mrs. Nugent, a wealthy widow, Appellant grew resentful because of her possessiveness. Finally, after considering murder for two months, Appellant shot Mrs. Nugent in the back until she was dead. Appellant explained his feelings and reasoning to the jury, attempting to present evidence of sudden passion. In closing arguments, the State reminded the jury that the murder was premeditated and stated there was no evidence of sudden passion or adequate cause. Defense counsel, in his closing argument, referred to defense testimony in support of a finding of sudden passion. Further, the jury charge included an instruction on sudden passion. However, a significant amount of evidence before the jury indicated not just the absence of sudden passion but the presence of premeditation and, more importantly, as explained above, Dr. Mears' excluded testimony would not have supported a finding of sudden passion. Therefore, the error of excluding Dr. Mears' testimony on the issue of sudden passion either did not influence the jury's verdict or only had a slight effect."

Dissociative Episodes

"Appellant attempted to mitigate the image presented by the State by explaining that his outward demeanor was a symptom of a dissociative reaction to severe emotional stress. Before the jury, Dr. Mears stated that dissociation often grows out of excessive stress and that people who are dissociative engage in a high level of repression and can have two different kinds of behavior. He noted that funeral directors are among those who learn to use a repressive technique. Further, Dr. Edward Gripon, the State's expert witness, thoroughly explained, on cross-examination by defense counsel, what dissociative disorder is. The jury also heard Appellant testify that he had not thought about the murder and had put it out of his mind.

The excluded evidence was very similar. Dr. Mears stated on voir dire that Appellant did not suffer from dissociative identity disorder  but might have had an episodic dissociative event. In the bill of exception, Dr. Mears indicated that Appellant's flat and deadpan manner after arrest was indicative of dissociative disorder. He also explained that individuals under a high degree of stress engage in dissociative episodes. In light of the evidence before the jury, we conclude that exclusion of Dr. Mears' testimony on the issue of dissociation did not influence the jury's verdict or had only a slight effect."

Future Dangerousness

"The jury had before it evidence of Appellant's character, his relationship with Mrs. Nugent, and the circumstances leading up to the murder. In closing, the State insinuated that, if not in prison, Appellant would pose a threat to other vulnerable widows. To the extent the State emphasized future dangerousness, it specified the group that might be in danger. The excluded testimony did not implicate vulnerable widows as Dr. Mears, in his excluded testimony, referred only to those individuals within the prison system. Accordingly, exclusion of Dr. Mears' testimony on the issue of future dangerousness did not influence the jury's verdict or had only a slight effect."

-CM