Conviction Reversed Because Expert Testimony re Eyewitness ID Excluded

Interesting case from New York: Joel Stashenko, Conviction Reversed as Expert Barred from Testifying, N.Y.L.J., April 3, 2015.

The case is People v. McCullough, 11-01614 (N.Y. Sup. Ct., App. Div. March 27, 2015), link to court website

Rap Lyrics as Evidence in a Criminal Case

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

• Scott H. Greenfield, The Rhyming Irrelevance of Rap, Simple Justice: A Criminal Defense blog, Jan. 14, 2014.
• Deborah C. England, Rap Lyrics in Evidence: Is it a Crime to Rhyme?, CriminalDefense.com (among other points, asks: why rap and not pop? what about "Helter-Skelter" by Paul McCartney?)
• Dan Brooks, New Jersey supreme court to consider admissibility of rap lyrics, Combat! ("oppositional culture for an occupied age"), Jan. 14, 2014.
• Rap, Race, Free Speech and Crimes, Basic Black (WGBH), Jan. 17, 2014 (panel discussion including professors of law, music, and writing)
• Rap Lyrics as Evidence, On the Media, Jan. 17, 2014. Transcript here.

This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).

Skype Deposition and Confrontation Clause

An interesting post:

Few cases have the intersection of the Confrontation Clause, witness unavailability, chain of custody, and Skype. Williams v State is one such unpublished opinion from the Indiana Court of Appeals. . . .

Skyping with the Confrontation Clause, Bow Tie Law's Blog, Nov. 19, 2012.

Reflections on Jury Duty

A News Tribune columnist talks about being called for jury duty. Kathleen Merryman, Jury duty a burden to some, a thrill and an honor to others, News Tribune, Jan. 25, 2012.

I was thrilled at the chance to be part of one of the fairest judicial systems on the planet. It has its flaws, and some of them run deep. But it demands that the accused see the faces of the peers who will decide the verdict. It requires that those peers be accountable to each other, and to themselves. It’s a mental stretch for participants, and discussions that stretch us beyond preconceptions are good for the health of democracy. We get to experience all that, even if we don’t serve on a jury.

Hot Coffee -- Documentary about Tort Reform

A new documentary explores the rhetoric and politics of "tort reform." Hot Coffee: Is Justice Being Served? begins with the the case that has been fodder for comedians and politicians, Liebeck v. McDonald's.

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

The next segment of the film looks at how a tort-reform damage cap has affected one family with a seriously disabled son.

And the third segment features Oliver Diaz, a justice of the Mississippi Supreme Court who successfully campaigned against a candidate backed by the U.S. Chamber of Commerce, only to be indicted for accepting a bribe and then for tax fraud. Despite his acquittals, the charges kept him off the bench for years and probably cost him his next election.

The filmmaker, Susan Saladoff, is a lawyer who took on this project – her first film – during a sabbatical from her practice. She definitely has a point of view, and in the film and on the website encourages people to take action opposing tort reform. Whether or not you ultimately share her position, the film offers important information, with clips from advocates on both sides of the debate. Check it out: KF1250.H68 2011 at Classified Stacks.

Criminal Case Dismissed for Discovery Abuse (CT)

Conn. High Court Dismisses Criminal Case for Discovery Abuse, Conn. Law Tribune (via law.com), July 20, 2011. Searching the defendant's computer for child pornography, the prosecutor found a document from defense counsel outlining strategy and key witnesses. On appeal, the Connecticut Supreme Court reversed. State v. Lenarz, No. SC 18561 (July 19, 2011), majority, dissent.

The majority opinion concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a miscarriage of justice.

The dissent opens:

Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial
measure.

I haven't read all the pages of argument on each side, but even from this much, it seemed well worth a post.

Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog

In Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog, Nov. 4, 2010, Susuk Lim discusses a personal injury case in which "a Pennsylvania court not only concluded that information posted on one’s profile lacked protection, but that login credentials to the profiles themselves are not confidential." I've seen lots of articles about litigators using Facebook and other sites, but I hadn't seen discovery of the other party's passwords in order to read them. Interesting.

Foreclosures over the Holidays

Public Citizen and Civil Justice, Inc. (Baltimore) are challenging the constitutionality of the mortgage foreclosure notice procedures in Maryland. Foreclosures over the Holidays, Consumer Law & Policy Blog, Dec. 21, 2007.

Blogging Jurors

Anne Reed (lawyer, trial consultant, and the author of the Deliberations blog) was interviewed last week on a Milwaukee radio program. The three-minute piece about jurors who blog is very interesting.

Reed says that a lot of trial attorneys are oblivious to how many of their potential jurors are online, and so they make mistakes and miss opportunities. For instance, judges routinely instruct jurors not to talk about the case or read the newspaper, but the jurors don't hear that as meaning they shouldn't blog about it or read the online sources they usually do; Reed recommends that the cautions be explicit. She also recommends that lawyers ask jurors if they have blogs, MySpace pages, Flickr pages, etc. -- and if so, how the lawyer could find them. You can learn a lot about people!

She also talked a little about a recent California appellate case that threw out a jury's verdict. A juror blogged that he had said his profession was "project manager" because that sounded better than "lawyer" and he wanted to be on the jury -- and then he boasted online that he had steered the jury too its verdict. Reed wrote about that case (People v. McNeely) here (June 19, 2007) and here (June 21, 2007).

Along the same themes as the radio interview, see Reed's posts: Jurors And Social Networking? So What?, Deliberations, Nov. 1, 2007; Jurors Who Read Blogs, Deliberations, June 27, 2007; Blogging Jurors, Part III: The Good, June 22, 2007.

Gotta Make a Record!

John Day (the Tennessee lawyer who writes Day On Torts) uses a Missouri case to remind readers that you have to make a record to prevent reversal on appeal. In this case, there was a settlement agreement that the plaintiffs refused to sign, saying that the attorney didn't have authority to make the settlement offer he did. The trial court, after a hearing with only oral argument (and no transcript), found that he did and entered judgment. But the Court of Appeals reversed. What did it have in front of it to do otherwise? Day on Torts: Failure to Make Record Causes Reversal, May 21, 2007.

Appellate Attorney Sanctioned for Dissing Court

The Utah Supreme Court has declined review of a case and ordered the unsuccessful appellant's attorney to pay attorney fees because the briefs had "a substantial amount of materail that is offensive, inappropriate and disrespectful" of the Court of Appeals. Among other things, the lawyer had said that the Court of Appeals fabricated evidence and was destroying "the moral premise of the legal system." Sanctioned for 'Disrespect', ABA Journal eReport, Jan. 26, 2007.

The sanctioned attorney is Boyd Kimball Dyer, who admitted, "I was wrong, and I deserve the sanctions." In his day job, Dyer is a law professor at the University of Utah.

The case is Peters v. Pine Meadow Ranch Home Ass'n, 2007 UT 2 (Jan. 12, 2007). The court offers a lesson in civility:

¶21 There is a misconception among some lawyers and clients that advocacy can be enhanced by personal attacks, overly aggressive conduct, or confrontational tactics. Although it is true that this type of advocacy may occasionally lead to some short-term tactical advantages, our collective experience as a court at various levels of the judicial process has convinced us that it is usually highly counterproductive. It distracts the decision-maker from the merits of the case and erodes the credibility of the advocate. Credibility is often directly tied to civility and professionalism. Judges, jurors, and other lawyers are more likely to believe a lawyer who is courteous and treats others with dignity and respect. Counsel in the case at bar would have been far more effective had he focused exclusively on the facts and the law without making his additional commentary disparaging and insulting the judiciary.

¶22 We have sought to encourage the bar to aspire to professionalism and civility in the practice of law through our adoption of the Standards of Professionalism and Civility. While these standards are not binding, we encourage members of the bar to study and follow them. Had counsel in the cases at bar observed these standards, he and his clients would not have incurred the severe sanctions we impose today.

Spam Filter No Excuse for Late Filing

Seeking leave to extend the time for filing a notice of appeal from summary judgment, an Arkansas attorney justified his lateness by saying he had not received notice of the order until about six weeks after the order, when opposing counsel sent him an email message asking if he had decided not to appeal. However, attorneys representing two parties on the other side testified that they had sent him email messages on the date of the order and the day after. Despite the attorney's speculation that he might have missed those messages because of a spam filter, the court denied his motion for permission to file late:

The record indicates that emails were sent to appellant's counsel by both attorneys Waddell and Watts within days of the entry of the orders that gave notice that the orders had been entered. Even if we could say that appellant's counsel received neither email, we could not conclude that counsel acted with due diligence in keeping up with the status of the case. Appellant's counsel was aware that two orders had been submitted to the court as of February 21, yet for over a month, counsel neglected to ascertain whether the court had entered the orders. Under these circumstances, we find no abuse of discretion in the denial of the extension motion.

Moody v. Farm Bureau Mutual Insurance Co.ca05-910, No. CA 05-910 (Ark. Ct. App. March 8, 2006) (unpublished). Here is an article from BNA's Electronic Commerce & Law, June 21, 2006. (This source is limited to subscribers.)

Filed in: cases, spam, technology, appeals

Ex-Prosecutor Suspended For Misleading Trial Court

[CASE] A New York appellate court suspended a lawyer for three years for lying about a witness's whereabouts. law.com - Ex-Prosecutor Suspended For Misleading Trial Court. According to experts interviewed in the NY Law Journal, this is an unusually strong sanction for prosecutorial misconduct.

During a felony trial, the defense argued that the prosecutor had violated Brady by withholding a police report of a witness whose statements were exculpatory. When questioned by the judge, the prosecutor said that he had been unable to contact the witness at her residence. Later, he located and interviewed the witness at her work. But when the judge again questioned the prosecutor, he stated on the record that he had no knowledge of her whereabouts.

What sanction? The prosecutor pointed to his record as an attorney, a reserve officer, and a church member. On the other hand, he had once before been given a letter of caution for prosecutorial misconduct that resulted in the reversal of a conviction. And in this case, the "conduct strikes at the heart of his credibility as a prosecutor and an officer of the court," he did not take opportunities to correct his false statement, and his action required a costly second trial. The court suspended him from practice for three years. Matter of Stuart, 2005 NYSlipOp 06936 (App. Div. 2d Dept. Sept. 26, 2005.)

Categories: prosecutorial-misconduct, sanctions, cases,

Public Access to Decision Revealing Evidence Tampering by Honda and Expert Robert Gratzinger - November 3, 2005

[CASE] After a California Superior Court judge sanctioned an expert for deliberately destroying evidence in a car safety case against Honda he sealed the sanctions opinion to facilitate settlement. Trial Lawyers for Public Justice challenged that ruling, arguing that "the public has the right to know about the unethical conduct exposed in this decision." And three years after the original ruling, the judge agreed that the order was improperly sealed and unsealed it.
TLPJ - Press - Public Access to Decision Revealing Evidence Tampering by Honda and Expert Robert Gratzinger - November 3, 2005. The original order (Oct. 2, 2002) and the recent order unsealing it (Oct. 26, 2005) are linked from TLPJ's press release.

The original order related the facts in some detail. Honda's expert, Robert Gratzinger, was examining the car the plaintiff had been riding in to gather evidence about whether she'd been wearing a seatbelt. During his examination, he took out a rag and rubbed out certain "witness" marks on the seatbelt buckle's latch. When plaintiff's attorney told him to stop, he persisted. He took the rag with him and produced a different rag at a hearing on spoliation. Clearly, the judge was appalled.

In the 32-page order, the judge then carefully went over possible sanctions -- monetary fine, limiting the defense that Honda could offer, declaring a mistrial -- and rejected them, concluding that the appropriate sanction was the biggest: holding Honda liable for the injuries and only sending to the jury the question of damages. Honda was also ordered to pay attorneys fees and costs to the plaintiff and the co-defendants.

Categories: experts, evidence, spoliation, sanctions, sealed-records, settlements, cases,