A Couple of Hearsay (or rather Not Hearsay) Examples
Statements that are not “offered for the truth of the matter asserted” – Sandusky – in 1998, a psychologist (Alycia Chambers) told Penn State police that Sandusky acted the way a pedophile might. Undoubtedly there will be plenty of civil cases against Penn State and this statement, whether true or not, would show that Penn State was on notice about issues with Sandusky.
Statements of a Party Opponent – defined as not hearsay – in the Phil Spector trial the Prosecution fought in pretrial motions to be allowed to enter into evidence statements of Phil Spector when he was first arrested for the murder of Lana Clarkson. Spector was hit three times with darts from a Taser gun and his attorneys argued the statements were therefore not reliable. The Court decided the statements were admissible. In a surprise move, the State of California did not use the statements at all in its opening statement (given by Asst. Dist. Att. Alan Jackson – now running for L.A. District Attorney). The Defense was completely shocked and indicated to the Judge it was unfair as the Defense had relied in preparing its opening statement on the assumption that the State would indeed introduce these statements. In an interesting “argument,” Defense counsel Bruce Cutler (of Gambino Family/John Gotti defense fame) complained to the Judge that “I feel like my pants are down and I’m naked before the Court.” Judge Fidler’s response? “It’s called the law.” The Judge nevertheless gave the Defense an extra day to rework its opening statement.
Dharun Ravi was found guilty on all 15 counts of the indictment, including the bias intimidation counts against Tyler Clementi and MB. There were some subparts of the counts to which he was found not guilty.
Verdict in Florida v. Goodman case - March 23, 2012
An update on the post below on the John Goodman case - after 5 1/2 hours of deliberations, a Florida jury found John Goodman guilty on both counts - DUI Manslaughter and Failure to Render Aid, as well as Vehicular Homicide and Failure to Render Aid. He faces between 11 1/2 to 30 years in prison. His bond was revoked and he was taken into custody.
Sentencing is scheduled for April 30, 2012.
Roy Black, a famous Florida attorney (he successfully defended William Kennedy Smith on a rape charge in the 1990s - and later married one of the jurors) was Goodman's lead attorney. According to one commentator, his arguments simply could not sway the six-person jury from the evidence of guilt -
Jurors began deliberations on Thursday, March 22 and will resume them today. Goodman is charged with one count of DUI Manslaughter and Failure to Render Aid and one count of Vehicular Homicide and Failure to Give Aid. The prosecution presented evidence that Wilson was alive following the impact, but later drowned in the body of water in which his car was submerged. Goodman could potentially receive a 30-year sentence.
Goodman is a billionaire Texas "tycoon" who is the owner of the International Polo Club of Palm Beach in Wellington, Florida. In 2010, he was driving his Bentley automobile when it hit a Hyundai being driven by Scott Wilson. Wilson's car skidded off the road and ended up in the body of water. Wilson drowned. Goodman left the scene. Goodman recently settled a civil case with Wilson's family for an undisclosed amount.
Goodman recently adopted his 42-year old girlfriend in order to protect his trust fund assets. The Court ordered this not be mentioned at his criminal trial.
Goodman left the scene, walked to what he called a "man cave" - a barn owned by a polo friend - and he says he drank heavily there due to his injuries - to relieve his pain. He then says he walked to Ms. Pembleton's (a stranger to him) trailer to call his girlfriend. Pembleton insisted he call 911. He did. Pembleton testified that he told his girlfriend "I really f***ed up" and this is "an end of the world accident." These would be statements of a party opponent. Interestingly, it came out at trial that Pembleton met with the attorneys for Wilson and Wilson's attorneys paid for a lawyer for her. The judge in this case allowed cross examination on this point, as it went to bias.
The defense maintains that Goodman's Bentley malfunctioned (the dual throttle system) and that Goodman suffered a concussion. They brought in well-known experts to testify about the Bentley and the alleged brain injury. On the other hand, the ER nurse testified for the prosecution that Goodman smelled of alcohol and showed no signs of a concussion. Goodman's blood alcohol level when tested at approximately three hours after the accident was over two times the legal limit for driving.
Goodman was allegedly drinking "Irish Car Bombs," and "Mind Eraser" cocktails. The Court also determined that the prosecution could bring in evidence that Goodman had taken hydrocodone the morning of the crash. He did have a $212 plus $60 tip bar tab for one of the two bars at which he drank but he brought in five eyewitnesses (those who were out drinking with him) to testify that he was buying the drinks for everyone.
Ah, it's with heavy heart that I have to report that I am on the losing end of this Battle of the News Editors (I do want to point out that I was outnumbered in the Editorial Department 2 to 1, however!). The Ohio State Buckeyes beat the Gonzaga Bulldogs on St. Paddy's Day by a score of 73-66. I think it is relevant under Rule 401 that at 4 minutes, the teams were tied. Probably not so relevant that Aaron Craft came in at #1 in Cosmopolitan Magazine's "The Hottest Guys of March Madness 2012," while Gonzaga's Robert Sacre came in # 4. And a statement of a party opponent (not defined as hearsay) is Gonzaga Coach Mark Few's statement "Ohio State's a heck of a team." Indeed. Good luck to the Buckeyes in the Sweet Sixteen match.
Gonzaga and Ohio State tip off this afternoon at 2:45 p.m. and that divides our news editors: Ann for the Gonzaga Bulldogs, with Debby and Ric rooting for the OSU Buckeyes. Who will win? We could look to prior performance, but that would violate Rule 404. We could report what the commentators are saying, but that would be hearsay. Perhaps we need a Daubert hearing to qualify some bracket bettors as expert game predictors? Instead, we'll just watch the action on (not in) the court!
Happy March Madness and St. Patrick's day to all.
Posted by Debby Merritt
State of New Jersey v. Dharun Ravi
Dharun Ravi, a former freshman at Rutgers University has been charged in a 15-count indictment - http://timenewsfeed.files.wordpress.com/2011/04/042011_ravi_indict.pdf
issued by the State of New Jersey for the bias intimidation, invasion of privacy and tampering with the evidence (among other charges) in connection with Tyler Clementi, his roommate, who was gay. Clement committed suicide by jumping off the George Washington Bridge in September, 2010. Ravi has not been charged with the death of Clementi. Ravi set up a webcam and viewed the video of Clementi, who was with a male date. He also invited other college students to view the video.
The jury in the trial began deliberations on March 14, 2012. They have not yet reached a verdict. The jury verdict form is available at: http://cnninsession.files.wordpress.com/2012/03/ravi-verdict-form.pdf
The Defense statement of the facts is available at: http://cnninsession.files.wordpress.com/2012/02/ravi-def-statement.pdf; and the Counter-Statement of Facts for the State of New Jersey is available at: http://cnninsession.files.wordpress.com/2012/02/ravi-pro-statement1.pdf.
An interesting (and undoubtedly important) piece of evidence ruled inadmissible is that part of an application to the Rutgers Administration by Clementi requesting a single room. In the application, Clementi states “my roommate used a webcam to spy on me.” Judge Glenn Berman ruled that the statement was inadmissible hearsay. See: http://abcnews.go.com/US/rutgers-trial-dharun-ravi-texts-witness-police-investigation/story?id=15800869&page=2#.T2GQZq7U8bt. He did allow in evidence that part of the application in which Clementi requests a single room. Judge Berman also did not allow “MB,” an unidentified witness – and the male whom Clementi was with during the taping to testify at all about Clementi’s reaction to his suspicion of taping. He did allow the testimony of MB and MB’s recollection of the events – but indicated the press must refrain from indicating in any way MB’s identity.
Oddly enough, the character witnesses called for Ravi (seven witnesses) are friends of Mr. Ravi’s father – described as middle aged men who did not use texts or tweets. Each indicated that they had never heard Ravi speak in any derogatory way about gay individuals. On cross-examination by the State, they did admit that the subject never came up. See: http://www.nytimes.com/2012/03/10/nyregion/character-witnesses-called-for-ravi-in-rutgers-case.html?ref=dharunravi. An important witness for the Defense was an investigator for the State (Frank DiNinno) who interviewed many of the dorm residents and friends of Ravi in February 2011. According to DiNinno, none indicated that Ravi had negative feelings towards gay persons.
A couple of key witnesses for the State of New Jersey were Michelle Huang, Ravi’s high school friend. She indicated that Ravi sent numerous text messages to her – one including the statement “we must keep the gays away.” He also stated he was “creeped out” by his roommate’s behavior and that he pointed the camera at Clementi’s bed. On cross-examination, Defense attorney Steven Altman asked her about her answer “yes” when earlier asked whether her recollection was affected by the newspaper accounts of the incident. See: http://www.nytimes.com/2012/03/06/nyregion/dharun-ravi-wrote-of-wanting-to-keep-gays-away.html?ref=dharunravi.
Another key witness was Lokesh Ojha, Ravi’s friend. He admitted he helped Ravi adjust the webcam so that it faced Clementi’s bed. On cross, he conceded he initially did not tell the entire truth to investigators. He later explained he was afraid of being dismissed from the University. See: http://www.huffingtonpost.com/2012/02/29/dharun-ravi-update-mb-to-testify_n_1310443.html?ref=dharun-ravi.
The jury has asked a couple of clarifying questions. They wanted the definition of “intimidate” and “purpose.” See: http://www.nytimes.com/2012/03/15/nyregion/in-rutgers-webcam-trial-jury-asks-judge-for-clarification.html?_r=1&ref=dharunravi.
The deliberations continue tomorrow.
Washington State Supreme Court Hears Oral Arguments on "Signature Crime" and Other Evidentiary Issues
It’s another one of those “truth is stranger than fiction” cases.
The Washington Supreme Court heard oral arguments on February 28, 2012 (see: http://www.tvw.org/index.php?eventID=2012020005B&option=com_tvwplayer) in the appeal of the civil detention trial of Kevin Coe (In re: Detention of Kevin Coe a/k/a Frederick Harlan Coe, No. 85965-5. Coe’s original conviction of criminal rape in the early-1980s was the subject of the book “Son: A Psychopath and his Victims” by Jack Olson. It is still available on Amazon at: http://www.amazon.com/gp/product/0689114087/ref=olp_product_details?ie=UTF8&me=&seller=
There are many evidentiary issues before the Washington Supreme Court and the Washington Evidence Rules are nearly identical to the Federal Rules of Evidence. There are many twists and turns in this case and it originates from Spokane, Washington, where I now live.
During the late-1970’s and early-1980’s there were a series of rapes in the South Hill neighborhood of Spokane (in fact the neighborhood where I live). During a three year period approximately 40 women were raped – the women were always alone and approached from behind. The crimes caused terror in both the neighborhood and the city, particularly after one of the popular local radio news personalities, Shelly Monahan (“Sunshine Shelly”) was raped. One of the odd things about some of the incidents was that the perpetrator was brutal when attacking the victims (many times ramming his fist or fingers down the throats of the victims causing permanent damage) but he also talked with many of them after the attack as if he were a friend (for example, after the rape of Ms. Monahan, he discussed her future career in the media). The attacker became known as the “South Hill Rapist.”
Coe’s mother was a socialite in Spokane society and his father was the managing editor of the local paper. After he was physically identified by a victim and his car movements were monitored, he was arrested. He was charged with five rapes and convicted of four – and given a life sentence.
Many of the victims were hypnotized prior to trial so that they might be able to recall the events of the rapes. The Washington Supreme Court reversed his conviction, finding the post-hypnotic testimony was not reliable. Coe was retried and this time found guilty of one rape – of the only woman who was able to identify him after the attack. He was sentenced to 25 years in prison.
Coe’s mother and father had been his alibi witnesses, testifying that he was with them at the time of the rapes. Amazingly, Coe’s mother Ruth told a friend she wished to hire a hit man to kill the judge and prosecutor in the case. The friend alerted the police. A police officer impersonated a hit man, and after she was caught on tape indicating she would pay to have the judge killed (but wanted the prosecutor severely injured so he would suffer for the rest of his life), she was charged, tried, and found guilty of the solicitation of first-degree murder.
Coe was nearing the end of his 25-year sentence in 2006 when the Washington Attorney General decided to begin a civil commitment action under Revised Code of Washington (RCW) Section 71.09.060 – and asked for a finding that he was a Sexually Violent Predator (SVP). Oddly enough, even though the trial is a civil one, it requires proof “beyond a reasonable doubt” by a unanimous jury. The statute calls for the “control, care and treatment” of the SVP. Once committed, a SVP is required to be held at McNeil Island in Puget Sound “until such time as the condition has so changed” or upon a conditional release to a less restrictive alternative. The statute had been passed in Washington in 1990. In order for commitment, the State must prove the defendant suffers from a mental defect.
Coe was found guilty and sent to McNeil Island upon his release from the 25-year prison term. Judge Kathleen O’Connor issued some findings after an earlier evidentiary hearing – see: http://www.spokesmanreview.com/media/pdf/20080530_coeruling.pdf
He appealed his case to the Washington Court of Appeals, Division III and the Court affirmed. It found no abuse of discretion. See: http://caselaw.findlaw.com/wa-court-of-appeals/1561320.html. Two of the many interesting issues are whether an expert would even assist the jury and whether an expert could rely on data from non-charged offenses (from a “HITS” database). It is a great case to illustrate the “signature” theory of admissibility of character evidence under 404(b).
There is no Confrontation Clause issue, because it is a civil case. The Appellate Court also determined that the experts were entitled to rely on unadjudicated cases from the data base (based upon hearsay statements made to the police and the medical authorities by other victims of rape during this time period in this geographic area). The Court found of course that the experts were able to rely upon inadmissible evidence in reaching their expert conclusions.
Dateline NBC ran a story on the case – available at: http://www.msnbc.msn.com/id/24922815/ns/dateline_nbc-crime_reports/t/case-south-hill-rapist/#.T1B_J67U_kY. The story was aired before the civil commitment part of the case.
It will be fascinating to see what the Washington State Supreme Court decides concerning the evidence. The questions before the Court are available here: http://www.wasupremecourtblog.com/2012/02/articles/oral-argument/todays-arguments-february-28-2012/
Spector was convicted in 2009 of the 2003 second-degree murder of actress Lana Clarkson (People of the State of California v. Phillip Spector). He alleged she committed suicide in his mansion the evening he met her at the House of Blues on Sunset Strip. The Judge declared a mistrial in his first trial due to a jury deadlock (10-2 in favor of conviction). He was convicted in the second trial.
Dennis Riordan, Spector’s counsel maintained that Judge Fidler (the trial judge) made “testimonial” statements at Spector’s second trial that violated his right to confrontation. Fidler had commented on the blood spatter testimony by an expert witness at the first trial and this testimony and his comments were played at the second trial. The California Appellate Court earlier decided that there was no confrontation violation under Crawford because “all Judge Fidler did was to seek clarification regarding which part of her hands Lintemoot [the State criminalist] had been pointing to as she was describing where she saw the blood.”
The California Supreme Court declined to hear the case this past summer, and now the U.S. Supreme Court has denied his petition. The end of the line for the famous, eccentric producer.
There is the upcoming HBO movie starring Al Pacino and Helen Mirren (David Mamet – director).
Juror Sent to Jail for Sending Friend Request to Defendant and Angering Judge
Sarasota, Florida Circuit Judge Donnellan was not amused by the Facebook post of a juror (Jacob Jock) as well as his friend request to the defendant (Violeta Milerman) in a case in which he was chosen as a juror. Ms. Milerman informed her attorney, who then informed Judge Donnellan that the juror sent Milerman a friend request. He was dismissed from the jury, as he was given clear instructions about Facebook prior to trial.
Making thing much worse, after his dismissal he posted the following to his Facebook page:
"Score...I got Dismissed!! apparently they frown upon sending a friend request to the defendant...haha!!!"
Judge Donnellan sentenced Jock to three days in jail for his behavior.
Part of his hearing is available here (on the left-hand side of the page: http://www.heraldtribune.com/article/20120216/ARTICLE/120219626/-1/sports?p=1&tc=pg