Wednesday, December 31. 2008Tuesday, December 30. 2008Forfeiting confrontation rights through wrongdoing.
Bill of Rights (From public domain.)
Last June, the United States Supreme Court determined that Crawford v. Washington, 541 U.S. 36 (2004) strictly limits prosecutors' ability to present to the jury a homicide victim's testimonial hearsay, even though the victim could have testified at trial had his or her killing not been procured. Giles v. California, __ U.S. _, 128 S. Ct. 2678 (June 25, 2008).
Two weeks ago, the D.C. Court of Appeals underlined that, under Giles , a criminal defendant only forfeits his or her Sixth Amendment confrontation rights if the defendant procured the witness's unavailability for the purpose of preventing the witness from testifying. Roberson v. U.S., __ A.2d _ (D.C. Dec. 18, 2008). In Roberson, although the D.C. Court of Appeals called it a close call, the appellate court determined that the trial court had not abused its discretion by finding by a preponderance of the evidence that defendant Roberson had arranged for someone to kill Mr. Lee to prevent Mr. Lee from giving eyewitness testimony to Roberson's presence during the shooting death of Donnell Simms. Consequently, the Court of Appeals left undisturbed the trial court's determination that Roberson had waived his right to confront Lee, due to forfeiture of that right by wrongdoing. As a result, the prosecutor was permitted to present Mr. Lee's testimony to the grand jury and information he provided the police.
Due to Roberson's trial lawyer's failure to raise a hearsay objection to the following testimony considered outside the jury's presence, Roberson declines to address whether Crawford prohibits a trial court's consideration of testimonial hearsay in determining whether forfeiture by wrongdoing had been committed by the defendant. Roberson's trial lawyer had no apparent disadvantage to raising such an objection, because no jury was present to hold such objections against Roberson. Hopefully criminal defense lawyers will always raise timely objections when faced with similar testimonial hearsay presented outside the jury's presence. Jon Katz. Monday, December 29. 2008Sunday, December 28. 2008Does waiting tables make one a better trial lawyer?
The closest I came to waiting tables was working as a pantry assistant in the kitchen of my old summer camp, making orange juice and bug juice with a garden hose and metal oar, moving food on hand trucks and flat trucks, shoving my hand in innumerable chickens to pull out the gizzard packets (in my pre-vegetarian days), and making sandwiches for the nighttime on duty staff.
I ran into many colorful kitchen characters. Some of them were pleasant, some the opposite, and most in between. I saw things that underlined why to think twice about eating in restaurants. For instance, when I mentioned to a kitchen supervisor with decades in the food service industry that I wasn't sure whether the chopped liver was still fresh enough for sandwiches for the late-night staff, he scooped his big bare unwashed finger into the yuckbowl, stuck it in his mouth as if it were chocolate, and proclaimed: "That will sharpen your pencil, but I have no one to write to!" In retrospect, I might have asked whether I was still within the state health code to make sandwiches from the now-fingerswirled yuck bowl. Who would have eaten them in the first place, though?
A fellow criminal defense lawyer once observed that prosecutors are not born; they are hatched at the age of twenty-five, with a law degree in one hand, and no real world experience. That might be overly simplistic, but any lawyer runs such a risk if s/he travels a path of a financially-privileged life (not all law students come from such privilege, of course), rarely getting the hands and fingernails dirty, living in the social bubble of a college campus, going straight to law schools that mainly focus on the head zone rather than the heart zone, working summers in the rarefied environments of corporate law firms, talking and writing lawstudentspeak, and competing for grades and law review to avoid having one's law school years seem all for naught. How many real humans live that way?
Waiting tables seems to be a good way to make one a better trial lawyer. Waiters and waitresses (collectively, "waiters") face customer complaints all the time. Will the waiter learn to diffuse such situations with empathy and humor and to let customer problems roll off the back? At least some do. Waiters often find themselves in between customers and chefs, and trial lawyers often find themselves between clients and judges, clients and prosecutors, and clients and opposing witnesses.
Rather than following the common path of going straight to law school from college, future law students might be wiser to spend at least a year rubbing elbows with a much wider cross section of people than are found on college and law school campuses. I probably would have gone nuts going straight to law school from college, from one Neverland to a new Neverland. In any event, I had not taken the LSAT on time to enter law school right from college, and took a job for one-year as a financial auditor with the Irving Trust Company in the belly of the Wall Street capitalist beast. I winced many times at the unapologetic and very open racially insensitive comments of too many of my colleagues, spoken not only at the frequent happy hours; that underlined future risks to come with racism in jury panels, judges, and the rest of the people I would soon deal with as a lawyer. Although my intention was to get experience, pay, and fun during the year between college and law school, I benefited very much that year rubbing elbows with a much larger cross section of people than I had ever dealt with before on a daily basis, from clerical workers who never would enter college to high-level capitalist managers.
In my first semester of law school, I had a torts professor who seemed to have lived life very far from the country club set. He felt that the way to make good trial lawyers was to simulate hardscrabble courtroom experiences; he spoke of the importance of thinking quickly on one's feet. He would have students play the roles of judges, witnesses, and lawyers. He had me cross examine a doctor, played by him, to underline the conspiracy of silence that he said previously existed before plenty of physicians agreed to testify as paid expert witnesses for injured plaintiffs in medical negligence cases. At one point during the cross examination, I caught the professor-witness say "Up yours" and give me the finger. The class had a good laugh, and I was not sure how much that was motivated by his frustration with my filtering my participation too much from my head in this exercise rather than shooting more from the hip, or if it was more to stay in the role of the difficult doctor being cross examined.
I visited the professor the same day, because I knew I was to remain on deck the next day to complete this theme of our torts class. When I told him I was not sure whether the bird-flipping was merely him keeping in character as the opposing physician witness, or something beyond that, he told me he would go easy on me the next day. I told him I was not looking to get off easy, but to be treated fairly. Whatever this professor's strengths and weaknesses, I decided he was worth another try the next year for his evidence class. Of all my law school professors, he seemed to have more trial experience than any of them, and that certainly enhanced my law school learning.
The indefatigable blawger Scott Greenfield has written several times that law students are disserved by law professors who treat them with kid gloves, because that does not reflect the real world of practicing law. Certainly, law professors should not have a license to be tyrants, nor to act on sexism or racism, nor to act or grade unfairly otherwise. That does not mean that a good law professor molly-coddles.
Not long after graduating law school, I read an interview with my torts law professor, who died earlier this year. When he started teaching law school in the 1960's, more students had hides like a rhinoceros (I think he said many had significant work experience already), but he found that the hides thinned over time with newer law students. When facing difficult judges -- and even the best lawyers cannot completely avoid judges being difficult with them -- a critical starting point is for the lawyer to have a thick skin, not an insensitive skin, but a thick skin with a very caring heart. The lawyer is not in the courtroom for his or her own benefit, but to fight for justice for the client. Friday, December 26. 2008The pathetic one-way street of no trespassing signs.
Bill of Rights (From public domain.)
If a civilian walks or drives past NO TRESPASSING signs, s/he can get arrested, searched "incident to arrest", brought before a judicial officer to have a bond set, and prosecuted for trespassing. The suspect can be prosecuted even if s/he is illiterate, does not understand English, has bad eyesight, or does not see the NO TRESPASSING sign because it is dark and the sign is not illuminated; the defendant will be permitted to raise such a defense, and the arresting cop may testify or testilie that the defendant confirmed s/he saw the sign (while collapsing chronology about whether the defendant said s/he saw the sign only when the cop pointed it out, and obscuring whether the defendant said s/he could read or understand the language on the sign, and whether its lettering was obscured by the dark, by tree branches, or by years of wear on the sign). In many jurisdictions, the maximum possible penalty for trespassing is too short (not more than 180 days) so as to preclude the right to a jury trial, which is a travesty of justice, because no person should be subjected to conviction of a jailable crime without the right to a jury trial.
If a cop knowingly passes no trespassing signs in Maryland to investigate a crime, s/he can get a free pass. I complained about this last March when Maryland's Court of Special Appeals gave its blessings to such behavior, and I complain about it now all the more loudly now that Maryland's highest court yesterday affirmed. James Desmond Jones v. Md., __ Md. _ (Dec. 23, 2008). Adding salt to this wound to the Fourth Amendment, this week's Jones opinion permits cops to persistently knock (read "bang" or even "pounding as if with a battering ram"?) on the door of one's home for minutes on end, without running afoul of the Fourth Amendment.
And what about cops who bang on the door and yell "Open the f--kin' door, or we'll mess you up good, and haul your ass to jail" and then lie that they politely knocked on the door for a few moments and politely asked to speak with the occupants?
Excuse me while I get a bucket and hurl. Jon Katz. Wednesday, December 24. 2008When the jury has no alternates.
Photo from website of U.S. District Court (W.D. Mi.).
Why would a prosecutor and judge not try to have alternate members on a criminal jury? Certainly a criminal defense lawyer might not raise the issue, in order to have a chance -- if a juror were stricken -- for a mistrial to get a better jury, to move settlement negotiations further, or to have the advantage of better knowing the opponent's strategy and evidence on retrial.
Steven Powell was accused of several counts of third degree sex offense, and proceeded to trial in a Maryland Circuit Court. Nobody sought alternate jurors. Soon after Mr. Powell's jury was selected and sworn, and before opening statements, one of the jurors informed the judge that he knew Mr. Powell. The juror said he was concerned that he could not be a fair and impartial juror, so the judge struck the juror, leaving eleven jurors in a state that guarantees criminal defendants a twelve-person jury. Powell v. Maryland, __ Md. _ (Dec. 15, 2008).
Powell's attorney declined to proceed with an eleven-member jury. At the time, it seems that the remaining potential jurors were in the courtroom and had not been dismissed, and the judge decided to proceed to select a replacement juror from the remaining potential jurors. Powell's lawyer objected, but did not move for a mistrial. Had Powell made such a motion, he would likely not have had a good argument against a retrial. The parties proceeded to select a replacement juror, but the judge refused to permit the parties to exercise peremptory strikes against any of the original eleven jury members. Powell v. Maryland
Maryland's intermediate appellate court affirmed Mr. Powell's conviction, and said that by not moving for a mistrial, Mr. Powell waived making his complaints about seating the replacement juror. Six of the seven judges of Maryland's highest court last week reversed Mr. Powell's conviction, finding no obligation for the defendant to make a mistrial motion to protect that right. Here, defense counsel said "[t]his is going to be a mistrial" after refusing to proceed with an eleven-member jury, but he did not make a motion for a mistrial, but that was neither here nor there for the outcome before the Court of Appeals.
Concurring in the result, Judge Murphy said that a mistrial for choosing from the remaining jury pool should only have been granted if the defendant had moved for a mistrial. Judge Murphy concurred in the reversal of Powell's conviction due to the trial judge's refusal to permit any peremptory strikes to be used against the original twelve jurors during the selection of the replacement jurors.
How would your state's law have handled Mr. Powell's jury situation? Jon Katz Tuesday, December 23. 2008Unseamly pants lawsuit kicked in its appellate seat. Image from public domain.
Roy Pearson flushed his $100,000 administrative law judge job down the toilet over his widely and justifiably lampooned multi-million dollar lawsuit against a dry cleaner that allegedly misplaced his pants.
Last Thursday, the D.C. Court of Appeals affirmed his trial loss against the dry cleaner. The appellate opinion reveals that Pearson mishandled his pro se case by missing the ten-day deadline for demanding a jury trial, which he was never able to get reversed by the trial judge.
Out of the deep pain that Pearson's lawsuit caused the small businesspeople he sued in this litigation came the gift of providing sufficient information to have him removed from his administrative law judge position. Congratulations to the Chungs, who are the appellees and ultimate trial and appellate victors. Jon Katz Monday, December 22. 2008Why did Felt blow the whistle on Nixon?
United States Constitution (From public domain.)
How selfish or not was the late W. Mark Felt's motivation to help the Washington Post's Bob Woodward and Carl Bernstein blow the lid off the Watergate coverup right up to Nixon, to the point that Nixon was forced to resign lest he be removed from office by impeachment?
On National Public Radio this past weekend, Daniel Schorr -- who apparently was on Nixon's enemies list -- boiled Felt's motivation to two things: First, Felt -- who took three decades to admit he was the Deep Throat informer -- wanted to preserve the integrity of the Federal Bureau of Investigation. Second, Felt had been passed over by Nixon to succeed J. Edgar Hoover as head of the FBI.
Schorr's first point is tempered by Felt's 1980 conviction while Carter was president -- if he were indeed guilty -- for approving illegal "black bag" break-ins of the homes of suspected Weather Underground members, for which Reagan pardoned him five months later while the case was on appeal. Schorr says Nixon long suspected Felt of being Deep Throat, and NPR reports that Nixon supported Reagan's pardon of Felt.
If Felt approved such break-ins without judicial search warrants, did he do so on the orders or urging of a higher-up, or was this just business as usual at the time at the FBI that Felt was not going to stop? Was Felt a carbon copy of J. Edgar Hoover, who was no great friend of civil liberties, and did he just want to maintain FBI independence from the White House? In any event, this man who was convicted of one break-in helped blow the lid off a more monumental break-in.
Most likely because the radio segment was so brief, Daniel Schorr did not elaborate on how Felt was motivated by Nixon's not having him replace J. Edgar Hoover. Was Felt paying back Nixon? Was he in so much pain from not being elevated to the FBI's directorship that he was willing for Nixon to experience the profound pain that Nixon ended up experiencing? Would Felt have felt more loyalty to Nixon had he been made FBI director? Felt left the FBI in 1973, so his insider information ended or fizzled there.
Regardless of Felt's motivation, he did the nation a great service by revealing the cover-up to Woodward and Bernstein. However, we must remember that few battles for justice are between the extremes of black and white and pure good and pure evil. Power will be abused in and out of government as long as people have power. Moreover, too many Americans seem to thirst for a powerful America just to have a powerful America.
In the foregoing context, Ronald Reagan's overly-simplistic 1980 campaign message of making America great again rang strongly with many Americans who did not want to see America surrender any more wars after Vietnam and did not want to see presidents like Jimmy Carter restrain the military from very violently addressing such international "embarrassments" as the taking and lengthy keeping of American hostages in Iran. Probably in a proverbial game of chicken, the Iranian leaders recognized that Reagan was trigger-happy enough to invade Iran and possibly drop a nuclear bomb or more there if the hostage crisis were not dropped post-haste, which led to the Iran-Contra abuse and solidification of presidential power, but Reagan was into his final term once everyone knew about Iran-Contra.
George Bush I took over after Reagan, probably less from his own qualities than the robotic failure of Mike Dukakis to connect with the American people, as exemplified by his failure to even say during a debate who his heroes were. Of course, Quayle said his grandmother was his hero, because he underlined she taught him that you can achieve anything you resolve to achieve; how non-profound a reason to choose a hero. Of course, the nagging question remains of where was George Bush I during the Iran-Contra scandal.
Then came Clinton, who did not seem to be such a power-hungry paranoid as Nixon nor a Rambo Reagan. However, Clinton for the most part continued the status quo of the military-government-industrial complex. Then came Bush II, who used September 11 as an excuse to run roughshod over the Constitution, along with the excessive number of Congressmembers who let him do it. And he still got re-elected in 2004; then again, his opponent John Kerry did not do much to connect with voters.
Now comes Obama, who spoke loudly and amorphously of "change" during his campaign, and who has named a slew of establishment people to cabinet posts and other high-level posts who do not seem yet to offer much beneficial change from what the Bill Clinton administration offered. Like Bill Clinton, Obama is a lawyer and very bright, and probably well understands Constitutional law. How much will Obama protect the Constitution, including the Bill of Rights as it applies to everyone, including criminal defendants?
Unfortunately, until the economy heals much further, too many people are going to see civil liberties as luxuries that can take a back seat to the economy. However, anytime that civil liberties are permitted to be weakened, it takes much more struggle to revive them than the heavy lifting it already takes to expand and keep them going. .
Watergate made clear the absence of limits to the possible and actual abuses of governmental power, but by no means spelled an end to such abuses. The successes in reversing the Watergate nightmare will be of little use if we do not constantly, effectively, and thoroughly scrutinize the actions and abuses of power of everyone in government, from executives to their underlings, to legislators, to judges, and to the cops on the street, prosecutors in court, and jailers in the overpopulation of the nation's detention facilities.
For those, like I, who believe they are on the side of the angels fighting in court for criminal defendants, that client-by-client approach by itself will not secure civil liberties; constant vigilance over government actions outside the courthouses is also critical. Jon Katz
ADDENDUM: A quality video of Nixon's resignation speech apparently is not on YouTube, but can be found here. Dan Aykroyd could not have delivered a more surreal performance than Nixon during this video of final studio preparation for his resignation speech. Sunday, December 21. 2008Mark Helm departs the planet.
At forty-five, I still tend to feel invincible, unless I am killed by an accident, natural disaster, warfare, or deadly assault. However, as each year passes, more people I know pass away. I know people in their late eighties and nineties, who have outlived the vast majority of their chronological contemporaries.
Last week, Mark Helm passed away. He attended the Trial Lawyers College in 2004, which was nine years after I did. He was only thirty-eight.
I never met Mark, and do not think we interacted on the Trial Lawyers College's listserv or otherwise. I wish I had met him. From what I understand, Mark was a criminal defense lawyer who defended his clients to the hilt, and was able to be hilarious outside of court (and perhaps in court at the right times, for all I know) when fighting in the pits for justice.
Mark's website talks of the way he defended his clients, which ideally describes the level of representation that all criminal defendants should receive:
"I make every attempt to get to know my clients and fight for them as a friend, brother or sister. I do not fight for a name, a cause, or a case number. I fight for a person I care for often someone that has been forgotten, ignored, and passed by. I often fight for someone that has been kicked so many times and so many ways, it is heroic they chose to fight another day. I fight for people with dreams, often unrealized, because they never had a chance, never were given a chance but, they keep going and do the best they can.
"I believe everyone deserves to have someone in their corner. I feel privileged and fortunate to be able to help, defend, and support others on a daily basis. I aggressively defend and protect people the way I would like to be treated if I were accused of a crime. I never forget if the cards had been dealt differently, our roles may have been reversed and consequently, I do everything within my power to protect and defend the people I represent."
If I am not mistaken, I did not know about Mark because he had the modesty not to be tooting his own horn all the time, but instead focused on defending his clients. Think of all the wonderful people we do not meet nor spend time with because we let ourselves get sucked into the daily grind of work, sleep, personal calendars and beer. Not only does it enrich our own lives to make time for such people, but it also speaks loudly to them how much we think of them.
Thanks, Mark, for your inspiration. My thoughts are with you and your family. Jon Katz Friday, December 19. 2008Feds issue updated § 2257 recordkeeping regulations.
The First Amendment and the rest of the Bill of Rights. (From the public domain.)
On December 2, I blogged that updated 18 U.S.C. § 2257 recordkeeping regulations aimed against child pornography were coming around the corner. The aim is overbroad, censorious, and not precise. In any event, the regulations were issued yesterday by the Justice Department and are here. Thanks to some listserv members for posting on the new regulations. My uploaded link to these regulations comes straight from the online Federal Register. I discussed the proposed regulation update here. The introduction to the updated § 2257 rules says: "This rule finalizes two proposed rules and amends the record-keeping, labeling, and inspection requirements to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006." The rule takes effect on Inauguration Day 2009. The introduction to the rules further states: "Compliance date: The requirements of this rule apply to producers of visual depictions of the lascivious exhibition of the genitals or pubic area of a person and producers of simulated sexually explicit conduct as of March 18, 2009."
The Supreme Court's most key recent ruling on child pornography prosecutions is Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In 2001, I became the founding president of the Free Speech Coalition affiliate for the District of Columbia, Maryland and Virginia, and for many years have defended the First Amendment rights and sometimes criminal defense rights of adult video stores, strip clubs, online providers, and individuals in the field. The FSC is the main trade association for the adult entertainment industry, particularly for the recorded and print image side of the business. However, I have made my disagreement clear from the beginning that I disagree with and refuse to participate with the Free Speech Coalition's support of child pornography prosecutions, considering that the First Amendment applies even to the possession and distribution (as opposed to creation) of child pornography, even while I acknowledge that this area includes some of the most upsetting violations and images imaginable and beyond imagination. The FSC's child pornography policy might make good business sense, but the First Amendment must come first.
I plan to review and comment on the updated § 2257 regulations in the near future. Jon Katz
Friday, December 19. 2008SuperLawyers renews me on its list.
For whatever it is worth, Super Lawyers has renewed me in its 2009 list of Maryland criminal lawyers.
Super Lawyers' selection process does not sound very rigorous. Scott at Simple Justice has heavily panned the Super Lawyers list and the AVVO list. He reported turning down Super Lawyers' invitation. I wrote about the list last January.
The publication promotes paid listings for those rated on its page. I have not paid them a dime, but I did accept Super Lawyers' invitation to be listed. The list I would very much like to be added to is the vegan criminal defense lawyers' list, if one is created. Jon Katz
Thursday, December 18. 2008Persuading Twitterers, their opposites, and those in between.
Image from Library of Congress's website.
A twenty-two year old recently pondered about how inconvenient life must have been before the days of Google. Ah, yes, the days before personal computers, DVDs and CDs, touch-tone phones, cassette tapes, eight-track tapes, widespread color television, widespread black and white television, and 45/33 RPM vinyl music albums. The days were wonderful before rampant drug testing even to play in the high school symphonic band, before metal detectors at schoolhouse entrances, and before the epidemic of unjust and overly harsh mandatory minimum prison sentences for drug crimes. We take the bitter with the sweet.
I reminded this twenty-two year old that Al Gore had not yet invented the Internet throughout my years of public school, college and law school. Frank Zappa long ago warned about the commercial slime oozing out from your TV sets. How many take heed of that sensible warning, now receiving custom-made commercial messages every time they accept cookies to log onto FaceBook, MySpace,YouTube, Amazon, and Twitter?
In 1984, Orwell wrote of the erosion of language, and the elimination and twisting of words, by a sinister government. Now, it happens every day with cellphone text messages (to the point that many people let their voiceboxes get full, in favor of texting), instant messaging, BlackBerries/IPods/Treos and online message boards. What ever happened to opening a book, and communicating with pen to paper?
The foregoing is the reality with which trial lawyers must persuade judges and juries, and communicate with their clients and witneses. At the same time, there is a small minority of people who do not touch the Internet and do not even have email addresses, and an even smaller minority who refuse to learn.
Long before the Internet came about, yogi Baba Hari Dass went silent and communicated by a chalkboard hung around his neck. Such communication helped Baba-ji free himself from excessive verbal and written noise so he could focus on living the yoga life. This is very much the opposite of sending multiple daily text McMessages from a cellphone followed by McTwitter (limited to 140 characters, which is shorter than many limericks and haikus found in public toilet stalls) followed by FaceBook (which invites members to say what they're doing at the moment, with many responses less interesting and inspiring than that the typer is contemplating one's own bellybutton lint). If the Internet and cellphone lines get jammed in the
The world in the past moved forward without computers, and can continue doing so if it had to happen again. Starting today, see what happens if you swear off text messaging, Twitter, MySpace, and FaceBook for one week. Jon Katz Wednesday, December 17. 2008Shoes blues.
Nikita providing further fodder for Mad Magazine.
Shoe-throwing is a traditional insult in some parts of the world. Had reporter Muntadhar al-Zaidi not thrown his shoes at George Bush, II, on December 14, millions of people would still have been in the dark about such a tradition.
Had then-Soviet premier Nikita Khrushchev not banged his shoe on his desk (was he banging a spare shoe brought for such occasions?) in October 1960 at the United Nations during the Philippine delegate's accusation that the Soviet Union was swallowing up Eastern Europe, perhaps the delegate's compatriot Imelda Marcos would not later have been bitten by a shoe bug.
As to my shoes, they are all vegan.
The National Lawyers Guild -- with which I have had a long love-cringe relationship, as detailed here, here and here -- has stuck its shoe in its mouth by issuing a news release in which its Executive Director, who is very likeable and apparently an effective peace broker, proclaims: “With that single brave act, Mr. al-Zaidi has inspired the Guild to transform one country’s negative symbol into a gesture of goodwill.” At least the news release encourages people to donate shoes to the needy.
The video of the shoe-throwing incident shows Mr. al-Zaidi aiming at least one of his shoes at Mr. Bush. That is a violent act. As with so many Guild statements, the Guild's failure to dissent from the shoe-throwing is not in my name. Violence is violence; violence begets violence; and violence must end now, starting with each of us.
Certainly, journalists are in a unique position to get dissenting messages to otherwise communication-sheltered world leaders. However, they need not do so violently, as exemplified by Wenyi Wang's April 2006 White House shout-out to the Chinese president with a modest but passionate insistence that human rights be protected in China. Jon Katz.
ADDENDUM: Thanks to my Eastern European politics professor Sarah Meiklejohn Terry for telling the story of the shoe-banging Khrushchev, in 1983. Tuesday, December 16. 2008Prosecution: Fail to authenticate video at own risk.
Photo from website of U.S. District Court (W.D. Mi.).
Some may say a picture is worth a thousand words, but first the picture must be authenticated to come into evidence at trial.
Rory Washington went to trial for attempted first degree murder in Baltimore, Maryland. Over his lawyer's objection, the prosecutor introduced into evidence a compilation of security camera video shoots at the bar where the attempted murder allegedly took place. The prosecutor proceeded in closing and rebuttal argument to rely heavily on the video.
Maryland's intermediate appellate court held that the trial court abused its discretion in admitting the videotape and still photographs into evidence, but affirmed on a claim that the error was harmless. Washington v. State, 179 Md. App. 32, 943 A.2d 704 (2006).
Praised be a unanimous Maryland Court of Appeals for reversing the conviction, saying:
"The videotape recording, made from eight surveillance cameras, was created by some unknown person, who through some unknown process, compiled images from the various cameras to a CD, and then to a videotape. There was no testimony as to the process used, the manner of operation of the cameras, the reliability or authenticity of the images, or the chain of custody of the pictures. The State did not lay an adequate foundation to enable the court to find that the videotape and photographs reliably depicted the events leading up to the shooting and its aftermath. Without suggesting that manipulation or distortion occurred in this case, we reiterate that it is the proponent’s burden to establish that the videotape and photographs represent what they purport to portray. The State did not do so here. Mr. Kim, the owner of the bar, testified that he did not know how to transfer the data from the surveillance system to portable discs. He hired a technician to transfer the footage from the eight cameras onto one disc in a single viewable format. Mr. Kim did not testify as to the subsequent editing process and testified only that the surveillance cameras operated 'almost hands-free' and recorded constantly. Detective Vila’s testimony also failed to authenticate the video. He testified that he saw the footage only after it had been edited by the technician. We hold that the trial court erred in admitting the videotape and still photographs without first requiring an adequate foundation to support a finding that the matter in question is what the State claimed it to be." Washington v. Maryland, __ Md. _ (Dec. 12, 2008).
Concerning harmless error review, Maryland's high court stated: "The standard in Maryland for evaluating harmless error was set forth by this Court in Dorsey '[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict.' Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). The standard remains unchanged today. See Lee v. State, 405 Md. 148, 174, 950 A.2d 125, 140 (2008); State v. Baby, 404 Md. 220, 265, 946 A.2d 463, 489 (2008); Bellamy v. State, 403 Md. 308, 332, 941 A.2d 1107, 1121 (2008); State v. Logan, 394 Md. 378, 388, 906 A.2d 374, 380 (2006); Clemons v. State, 392 Md. 339, 372, 896 A.2d 1059, 1078-79 (2006)."
The Court of Appeals continued: "Without the videotape, the State’s identification of petitioner as the shooter would have rested primarily on the testimony of Mr. Wright, a witness who had declined on several occasions pretrial to identify petitioner as the shooter. Although it was a jury determination as to the credibility of Mr. Wright’s explanation for why he did not identify petitioner as the shooter before the trial, the videotape, relied upon so heavily by the State, under these circumstances, was not harmless beyond a reasonable doubt."
Congratulations to Rory Washington for his appellate victory. Jon Katz. Monday, December 15. 2008MD: If the handle fits the eye, you must acquit the guy.7u Photo from website of U.S. District Court (W.D. Mi.).
In some courthouses in Maryland, prosecutors often offer a plea deal involving a not guilty plea on an agreed statement of facts rather than a straight-out guilty plea. This approach often seems to be more a form of habit than anything else to which judges, prosecutors and defense lawyers are accustomed, and this approach gives defendants an opportunity to move for judgement of acquittal based on insufficient evidence, and to appeal if the trial judge determines that the evidence is sufficient to convict.
If a defendant wants to settle his or her criminal case, a not guilty on an agreed statement of facts is preferable to a straight-out guilty plea, because if the judge grants a motion for judgment of acquittal on the stipulated facts, the defendant is acquitted.
Matthew Polk learned the benefit of such a plea -- versus a straight-out guilty plea -- two weeks ago. He entered a not guilty plea on an agreed statement of facts on an allegation of possessing a concealed dangerous weapon, a knife. The trial judge denied his motion for judgment of acquittal, but Maryland's intermediate appellate court reversed his conviction, finding that the knife was not concealed, because its handle was visible to the cop involved. Polk v. Maryland, __ Md. App. _ (Dec. 3, 2008). As to the unusual language in the court's opinion, that is par for the course of the author, retired judge Charles E. Moylan, Jr. Jon Katz. |
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