Tagged: cross-examination

Event: Professor Bennett Gershman Stars as Clarence Darrow

Clarence Darrow performancePace Law School and the Pace Criminal Justice Society present Clarence Darrow starring Professor Bennett Gershman. Please join us for this once in a lifetime event and note that there will be only two performances! Suggested donation is $15 and all proceeds will benefit the Equal Justice Initiative. Don’t miss it and come and join us!

WHEN:
FRIDAY April 24, 2015 at 7:30 pm
SATURDAY April 25, 2015 at 2:00 pm

WHERE:
The Moot Court Room at Pace University School of Law, 78 North Broadway, White Plains, NY

Clarence Darrow (April 18, 1857 – March 13, 1938) was born in Ohio and attended the Allegheny College and University of Michigan Law School. He began his career as a corporate lawyer, moved on to labor law, and at the end of his legal career he was a criminal attorney defending, among others, Leopold and Loeb in Chicago presenting a defense that the two accused boys were mentally disabled and should not be sentenced to death, John T. Scopes in Tennessee who was accused of teaching evolution theory in violation of the Butler Act, Ossian Sweet in Michigan, articulating and highlighting racial prejudice throughout the trial of Mr. Ossian Sweet who was charged with murdering a white male while defending his home, or the Massie Trial in Hawaii presenting an honor killing defense in a case where two defendants were charged with murdering Joseph Kahahawai – a man who was accused of raping and beating Ms. Thalia Massie but who was believed to have escaped justice because of hung jury.

Related Readings:

Oh My Brady! Who Art Thou?

Although the New York State Court of Appeals decision in People v. McCray, will likely not be a hot topic of conversation in many legal circles, it will definitely have a palpable impact on prosecutorial practices regarding the handling of Brady disclosures in New York.

In McCray, the defendant was accused of raping an 18-year-old female acquaintance. At trial, the prosecution alleged that the defendant and the complainant had gone on a date and that the defendant physically forced the complainant to engage in sexual intercourse while inside an abandoned building. The defense claimed that the sexual encounter was consensual, and an altercation arose when the complainant demanded money in exchange for having sex with the defendant. The defense also contended that a physical struggle occurred when the defendant attempted to stop the complainant from running off with his “pants.”

Unquestionably, the case presented a “classic he-said she-said credibility determination.” And “[t]he outcome of the case obviously depended on which witness the jury believed.”

Prior to trial, the prosecution requested that the court conduct an in-camera review of the complainant’s mental health records. The prosecution didn’t believe that all of the reports were discoverable, and sought the court’s guidance as to which documents were Brady-Giglio material. The trial court found that only 28 pages out of the thousand records it reviewed should be disclosed to the defense –although the undisclosed records referenced, among other things, the complainant’s tendency (1) to confuse dates of events or misunderstand events, (2) to have hallucinations or distorted perceptions, (3) to misrepresent the truth in an effort to please her mother, (4) to engage in wishful thinking about relationships with males with whom she is recently acquainted, and (5) to fabricate occurrences of sexual assault and attempted rape by her father –allegations which were ultimately deemed “unfounded.”

The Court of Appeals observed that “[t]his case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought.”  Nevertheless, it concluded that the key inquiry remained whether there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

The Court held that the undisclosed records were “either cumulative or of little if any relevance to the case.” The Court explained that they “contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had….” The Court also found that any prior fabrications would be immaterial because the “accusation [against] her father was far removed in time and quite different from the[se] accusation[s]…” The Court concluded that “[i]t is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been.”

Dissenters were critical of the Court’s failure to protect the defendant’s right to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. (Dissenting Judges: Jenny Rivera, Jonathan Lippman, Eugene Pigott).  They explained that “[w]ithout access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process.”

Unfortunately, the long-standing importance of the Brady-Giglio rule has not been fully appreciated by all members of the Court and decisions like McCray reaffirm the need for legislative reform in order to address the stark imbalance in discovery practices.  Likewise, the result-affecting test conducted by the Courts to determine Brady violations is simply a farfetched and imperfect process -as “[w]hat influences juries, courts seldom know.” (Chief Judge Jerome Frank). The imperfection of this process is further illustrated by the illogical fact that the majority in McCray found it “hard to imagine” that a juror might reach a different outcome–while members of its own bench implicitly found that they would have reached a different outcome in this case had they know of the undisclosed reports.

The McCray decision simply fails to recognize that the right to disclosure of exculpatory and impeachment evidence under the Brady-Giglio rule is the cornerstone to ensuring a defendant the right to a fair trial, and ensuring that the “goals of seeking the truth through the trial process” is legitimate.  Without access to favorable evidence, a defendant is unable to either effectively prepare for trial, or present facts important to the “truth finding process.”

All the parties in McCray, except the defense, were permitted to decide how the complainant’s mental health records may be useful to the accused. In my opinion, such a vetting process is unsound, and should not be representative of how future Brady-Giglio materials should be handled by prosecuting offices. As an alternative,  these Brady-Giglio materials, even if  referencing “private matters” of the complainant, should have been turned over to the defense under a protective order, or subject to preclusion after the court heard arguments from both sides. Of course, such an alternative process would at least respect the fundamental principle that the right to favorable evidence is one of constitutional dimension -and the “privacy concern” of a witness is not.

To decide what may be favorable to a defendant, while keeping him blindfolded in his prison cell, does not comport to the notions of fairness and justice for all.

References

Fighting for the Client in the Bronx – Reflections of a Student-Attorney

The following is a story written by a current Pace Law School student who has been working in the Pace Criminal Justice Clinic during his third year of law school. He describes the trials and rewards of representing real clients and shares with all of us what he learned – a lesson to all criminal practitioners.

POST WRITTEN BY: Christopher James Di Donna ’14

Unlike many third-year law students, I am, thankfully, not helping to keep alive that old adage about one’s final year at law school (You know the part about how your professors bore you to death after they have scared and worked you to death.). My third year has been far from boring. Instead, I have spent my final year at Pace Law School working as a student-attorney under the supervision of Professors David Dorfman and Robin Frankel at the Barbara C. Salken Criminal Justice Clinic. I still have regular classes in addition to the clinic; however, the clinic has been my primary focus.

It took my family and friends some time to understand that my peers and I at the clinic are not just doing “mock trials” with “mock clients.” Instead, we work for real clients with real problems in real court facing real consequences in the Bronx. This clinic gives us the unique opportunity to learn about and practice law before we graduate and sit for the bar exam.

Case in point (the pun was intended): I had the privilege of representing a man charged with Driving While Ability Impaired under New York Vehicle and Traffic Law (V.T.L) section 1192(1).  For over three years, this man made countless court appearances professing his innocence. This case was transferred to us from Bronx Legal Aid Society at the suggestion of Professor Frankel. I worked the case  for three and half months. I reviewed the case-file numerous times, especially the Intoxicated Driver’s Testing Unit (IDTU) video, investigated the scene of the alleged crime with my client and fellow students, and corresponded with the Bronx District Attorney’s Office.

The true highlight of this case was representing my client in a Dunaway/Johnson (probable cause for arrest) and Huntley (voluntariness of defendant’s statement) hearings. Here I was a third-year law student cross-examining a veteran highway officer of the NYPD; impeaching him on his own omissions and the inconsistencies between his testimony and his memo-book and arrest report. My cross-examination of the arresting officer and his demeanor throughout the hearings convinced the judge to suppress all the DA’s evidence. The DA’s Office was forced to dismiss the case and my client received the justice he sought after more than three years.

My work on this case and my overall experience at the clinic has had a profound effect on me. I realized the importance of persistence. To be an effective advocate you have to work a case hard. You have to think about the case often and play out all the approaches and possibilities in your mind. I thought about this case when I grocery shopped, drove, showered, and at countless other times of the day and night. The more hours I put into his case, the more sense I made of it. I learned the strengths and the weakness of the case and the law and the people involved in it. My strategy morphed over those months with each realization. Even during the suppression hearing, with the help of Professor Frankel and a fellow student-attorney at the clinic and my second seat on the case, Alexandra Ashmont, I tweaked and adjusted my cross examination of the arresting officer on the spot. Without persistence from day one to the day you go to court, I do not believe that one will achieve a palpable and just result for his or her client. And neither will you feel good about the result if you did not invest the necessary time into the case.

This experience taught me that the law, especially criminal law, is about real people in really bad binds. You as the advocate are sometimes the one person holding up the walls from crashing down on your client. You have a duty, within the confines of the rules of professional responsibility and ethics, to get the best results for your client. You have to listen to the client, chase down leads and documents, and beat your head on your desk until the best strategy falls out. The Pace Criminal Justice Clinic gave me the opportunity to learn, to help others, and to avoid being bored to death in my final year of law school.

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Recent SCOTUS Decision Restricting Fifth Amendment Protection

In Kansas v. Cheever, the Supreme Court recently held that when a defendant presents evidence of lack of mens rea through a psychological expert who has examined him the government may, consistent with the Fifth Amendment, rebut that evidence with testimony from a different expert who examined him in a pretrial, court-ordered examination.   In doing so, the Court clarified and arguably extended its holding in Buchanan v. Kentucky, 483 U.S. 402 (1987), where it allowed such proof to rebut a defense of extreme emotional disturbance, and where the court-ordered examination had been requested by both parties.  The Cheever Court held that the defendant’s assertion of voluntary intoxication that relied on an expert was sufficient to permit the prosecution to rebut because it is a “mental status” defense, even though voluntary intoxication is not a “mental disease or defect” under Kansas law.

Of course, in 1981 in Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that a court-ordered psychiatric examination violated the defendant’s fifth amendment rights where the defendant neither requested the examination nor put his mental capacity in dispute at trial.

The Cheever decision was unanimous.  Yet it is not clear why the content of a defendant’s discussion with a court-appointed expert should be revealed to a jury to rebut the testimony of another expert.  The Court indicated that this was essential to fair and effective impeachment, but, of course, the defendant’s expert is wholly subject to cross.  Certainly, in such a case, the defendant is being “compelled” to be a witness against himself, and, given the prosecution’s ability to cross examine that expert, fairness does not really justify that.  Moreover, although the court likened the situation to allowing a defendant to waive his privilege as to some subjects and not others, that is really not the case, since the defendant did not waive his privilege at the time when he spoke with the court-appointed expert, nor was the same psychiatric issue being investigated.   To the extent that it makes candor costly, the Cheever decision may well have a negative impact on the reliability of court-ordered pre-trial examinations that frequently are conducted for a variety of psychiatric reasons.

Cheever also claimed that if the rebuttal was properly permitted, the testimony exceeded proper limits in that it described broad subjects that had been discussed, i.e., the shooting from his perspective, intimated that he had  a personality disorder and discussing his alleged infatuation with criminals.  The Kansas Supreme Court had not addressed this issue, however, and the Supreme Court declined to address it in the first instance.

Impeaching Arresting Police Officers

In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.

By Steve Cobb, Pace Law School Class of 2014

Nothing is more commonplace than a criminal defendant who claims  to be innocent.  But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false?  Criminal defense lawyers face a significant disadvantage when they seek to  discredit arresting officers.  Nonetheless, it can be done.  Here is a three-step approach that may be helpful.

STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY:  In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor.  Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony.  What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.

The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth.  Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words.  Avoid arguing, and make a sincere effort to get complete testimony on the record.  If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself.  Remember Lieutenant Columbo?  He was an excellent interrogator – friendly, but very knowledgeable, and tenacious.    And effective!

I found a good resource in the Wisconsin Public Defender’s office, Cross Examining Police Officers and Agents:  Who’s in Control Now?   Here, the author mentions:

  1. Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.
  2. Try to establish that some element of the offense is missing.
  3. Force the police officer to commit to his/her version of events.

Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal.  Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.

STEP TWO: TRIAL.  The goal here is to highlight the inconsistencies in the police officer testimony.  Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer.  You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing.  When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10.   Should that motion be denied, then move on and present your case.  In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.

STEP THREE:  330.30 MOTION TO THE TRIAL COURT:  Now you can make use of all the inconsistent testimony you obtained!  Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.”  Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.

Obviously, the standard of proof required to win this motion is very high, and of the sixteen cases I researched involving a motion made on these grounds, only one of them People v. Quinones, succeeded.  There is also case law holding that a challenge based on insufficiency of evidence will not work where there is more than one prosecution witness.  See, e.g., People v. Ledwon,  46 N.E. 1046 (N.Y. 1897), People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).

Will this approach work?  Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.

Related Readings: