EvidenceProf Blog

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

Tuesday, December 11, 2007

Take My Attorney, Please: Supreme Court Of Oregon Reverses Convictions Based Upon Lawyer Bashing Tape

The Supreme Court of Oregon has reversed a man's convictions after determining that the trial court improperly allowed the prosecution to play a tape in which the defendant criticized his court-appointed attorney.  After a jury trial, Roy Norman Knight was convicted of sexually abusing his girlfriend's 13 year-old daughter.  At trial, Knight testified in his own defense and claimed, among other, things that "he was a 'serious parent,' loved his children 'very much,' wanted to fulfill the expectations of his own and his girlfriend's children and wanted them to have good childhoods...."

After Knight testified, the prosecutor sought to impeach his testimony through the admission of a tape recording of a telephone conversation that Knight had with his mother while he was in jail awaiting trial.  In this conversation, Knight made several statements where he claimed that his attorney was incompetent and that if his mother and his sister Jodie did not get him a better attorney, he would be signing his kids over to the state.  Specifically, Knight told his mother, inter alia,

     -"If you and Jodie cannot get me a good lawyer, I'm going to do my fucking time, I'm going to sign my kids over to the State of Oregon, and you guys will never fucking see me again;" and

     -"Okay.  Listen.  Listen.  I don't care what you've done -- what you have done.  I'm telling you if I go to trial with this fucking attorney, I'm signing my kids over to the state, and I'm going to go and do my time, and then I'm going to live in Mexico.  I am not going to live in American with a fucking sex beef on me at 55 years old."

At another point during the conversation, Knight told his mother she should sign a promissory note or a lien, or even rob a bank, to get money to hire a different lawyer for him.  The trial judge found that much of the recorded conversation was inadmissible but that the prosecutor could ask Knight whether he threatened to turn his children over to the State of Oregon if he didn't get his way.  According to the  judge, the recorded conversation would be inadmissible unless Knight denied making the statement.    

The prosecutor then asked Knight whether he threatened to turn his children over to the State of Oregon if he didn't get his way, and Knight acknowledged that he made the statement.  Knight, however, then claimed that he made the statement because he thought that the State could provide his children with a "decent life" and because he did not want to impose on his aging mother and his sister.  In response, the prosecutor claimed that Knight had opened the door for the tape being played, and, over defense counsel's objection, allowed the tape to be played to the jury.

On appeal to the Supreme Court of Oregon, Knight claimed that the tape should have been excluded pursuant to Oregon Rule of Evidence 403, which, like its federal counterpart, states that although relevant, evidence may be excluded if its probative value is substantially outweighed by dangers such as the danger of unfair prejudice. 

The Supreme Court first noted that the tape had limited probative value to an issue that was -- at best -- not central to the prosecution's case.  The Court also noted that the state could have impeached Knight through the use of other means which did not consist of Knight directly attacking his lawyer.

Looking at the tape's prejudicial effect, the Court concluded that "defendant's persistent references to trial counsel as 'this fucking attorney' and 'this motherfucker' undoubtedly focused the jury's attention on defendant's personal and professional conflict with trial counsel -- a conflict that had no relevance to any issue before the jury. Equally importantly, hearing defendant's remarks inevitably affected the jury's own perception of the competence and zealousness of defendant's trial counsel and, ultimately, of the strength of defendant's case. After the jury heard that defendant was unimpressed with his lawyer's ability, his cause was sunk. No juror thereafter was going to view defense counsel as more credible and persuasive than the prosecuting attorney."

The Court thus found the tape inadmissible and reversed the defendant's convictions.  The Court's decision makes sense to me.  While the prosecutor had every right to impeach Knight's testimony, it seems wholly unnecessary for him to have done so through the use of a tape where Knight primarily attacked his attorney.  Furthermore, as the Knight court noted, courts have recognized that comments belittling a defendant's attorney jeopardize the defendant's right to a fair trial. See, e.g., In re Ochoa, 157 P.3d 184 (Ore. 2007).



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