Spectral Evidence & Spectral Appeals

Facts.

After getting out of prison for burglary, Jack (defendant) shacked up with Fae, who ultimately became pregnant by him. Shortly after giving birth to Jack’s son, the two got into a heated argument when Jack drove up to the house and called out for Fae who came to the porch. The two were yelling back and forth when Jack threw some photos out the car window and, drawing his hand across his neck, said he would “level” Fae’s family. As Fae called 911 she yelled back, “You do that.” Sometime later, the police arrived and took a report. They told Fae she should nail her door shut to protect herself. Taking their advice, she did. Eventually the prosecution filed charges against Jack for criminal threats.

At trial, Fae testified to the above and, in addition, that Jack’s threats had made her afraid for her safety. To corroborate the reasonableness of her alleged fear, she was allowed to testify that: defendant had told her he had disemboweled an inmate in prison in order to retrieve drugs hidden in his stomach and that he had killed his ex-wife’s lover and dumped the body in a lake. Fae stated that knowing these things, caused her to take Jack’s statement that he would “level” her family seriously.

There were no reports, prior convictions or evidence of spousal abuse by defendant. Prison records did not contain any reports or information concerning an alleged disembowelment. Nor were police investigators ever able to find evidence or corroboration of a murder involving the dumping of the body in the local lake

The jury returned a verdict of guilty and appellant was sentenced, under Three Strikes, to life in prison.

Issue:

Was Fae’s evidence of alleged past crimes by defendant properly admitted as corroboration of her fear?

Argument

1. Fae’s hearsay evidence of supposed prior murders by defendant was improper self-corroboration. The purpose of corroborative evidence is to provide some independent verification of a witness’s testimony, and here the supposed “corroboration” came from the witness herself.

2. While Fae could testify that appellant made the threat to “level” her family, and while should could testify that she was made afraid by this statement, it was nothing but bootstrapping to allow her to give evidence of other alleged crimes in order to substantiate that her fear was reasonable.

Background: Criminalizing “threats” runs the risk of penalizing free speech which often makes threats or exagerrated statements as jokes or for rhetorical effect. To draw the line between legitimate and criminal speech, the court’s require several things: (1) that the person addressed actual feel fear and (2) that the fear be objectively reasonable. It is not enough for a person to simpy say that they were afraid. It is not even enough for them to actually have been made afraid. The fear has to be actual and reasonable -- the kind of fear a normal, average, person would feel in the same situation. The evidence of defendant’s alleged past murders was offered to prove that Fae’s fear was reasonable. But this evidence came entirely from Fae’s mouth with no independent verification at all. How do we know she wasn’t make it up?

3. Caselaw has universally held for close 300 years that evidence of past crimes is extremely prejudicial, in that it biases the jury against the defendant, and predisposes them to convict him, without examining the strength of the actual evidence on the present crime, simply because being a criminal he “probably” did it.

Appellate Court Ruling.

The court refused to reach the issue and let the sentence stand because, it said, there was no evidence in the record as to what proposed testimony was before the trial court when he made his ruling allowing the evidence.

Critique.

The court’s claim that there were insufficient facts in the record to adjudicate the claim is not substantiated by the record itself.

Prior to trial, the parties argued over whether Fae’s evidence of alleged crimes should be admitted. The reporter’s transcript shows them arguing over various numbered items that the prosecution wanted to introduce and listed in a written motion. With respect to Fae’s evidence, either the court or one of the attorneys referred to the item number in the list, giving a brief verbal description; e.g.. Okay, now, item number 3 - this business about him telling her that he disemboweled somebody in prison to retrieve the drugs....; and, Lets go to item number 9, that he told her he had killed his ex-wife’s lover and dumped the body in the lake. etc.

Notwithstanding these descriptions the Court Appeal asserted that it could not really evaluate what went on at the hearing without having a copy of the prosecutor’s written motion, even though the written motion itself was not part of the normal appellate record.

The court’s reasoning is inadequate. For the transcript as it stood to be insufficient, one would have to suppose that the trial court and counsel were engaged in creative fantasizing. The issue on appeal was not whether they were engaged in creative fantasizing but whether Fae was. To avoid that issue, the Court of Appeal would have us suppose that court and counsel were talking about something entirely different than what they are reported to have discussed.

As bad as being denied a full appellate review on the merits, the court’s ruling leaves spectral evidence alive and well in California.

At the Salem Witch trials back in the 1650’s, Sarah Goode, Sarah Osborne and others were accused of being witches and engaging in witchcraft; among other things, inducing a wart on one of the victims and so on. The victims were young girls aged 9 and 11. To substantiate their claims the victims were allowed to introduce “spectral evidence” -- this evidence consisted of them falling on the floor in court, shrieking and pointing hysterically at the witch’s spectre floating about the courtroom. Of course no one else could see it. But the evidence was admitted anyway.

Why? Because the judges, being well trained in both theology and the English Common Law ruled that the Devil could not use a person’s shape without that person’s permission and therefore when the victim claimed to “see” the ghost of a specific person, it was evidence that the defendant was in league with the devil. In modern lingo, the witnesses were allowed to self-corroborate.

Welcome to the 17th Century. In California the hollow spectre of an appeal has allowed spectral evidence to fly again.

But that’s just my opinion.

The Steak Thief

Facts

1. Defendant, a man in his late 30’s was convicted of stealing a steak and assault with a knife. The video cameras showed him pocketing the steak and exiting the store whereupon two body-builder guards in plain clothes grabbed him. Defendant pulled back and the guards fell upon him and pummeled him into a bloody mess. If unprovoked, such a beating would expose them and the store to civil liability; but the guards claimed that defendant had pulled a knife on them. Although defendant had a knife on his person the video of the incident did not show him pulling it out or attacking anyone with it.

2. At trial defense counsel allowed the jury to hear evidence that defendant had been previously convicted of burglary and child-endangerment. The jury returned a verdict of guilt and defendant was sentenced to two consecutive life sentences in prison on account of his prior “strikes”. Under this sentence, defendant’s parole date is scheduled for sometime after he will have been paroled into the next world.

Issue:

Was defendant deprived of his constitutional right to effective assistance of counsel on account of his lawyer’s decision to let the jury hear about the prior convictions?

Argument

1. The U.S. Constitution guarantees the right to effective assistance of counsel at trial. (Strickland v Washington )

Background: The right exists, because most people do not understand the complexities of law and legal procedures. In addition, no one is on top of things when they are locked up or under the stress of being prosecuted. If a defendant does not get competent representation, his conviction will be reversed because our system is based on adversarial testing and, when one party has not been effectively represented, there was no real “test” or “trial” and the verdict cannot be deemed reliable. The rule is similar to recognizing that a world heavyweight boxing title doesn’t mean much if the competition was bantam class.

2. Every English and American court for over 200 years has recognized that evidence of prior criminal conduct is “inherently prejudicial.” [Many Citations]

Background: The issue at any trial is whether the prosecution has evidence that stands on its own two feet to prove that the accused did what he is charged with having done. The issue is not whether he did something bad before, because that case is over and done with. However, most people when they find out that a defendant has committed a prior crime, tend to think “Ah so..... well he probably did this one as well....” Perhaps, but “beyond a reasonable doubt” means more than “probably”. Just as importantly, once evidence of prior wrongdoing gets in, we can no longer tell whether the jury really put the evidence in this case to the test. Did they really give it a hard look on its own merits, or did they make up the difference with a “well..... probably...”?

Because prior convictions are “inherently prejudicial” they can be brought up in very few and limited situations. For example, if a defendant testifies, plays the angel and says he never did nuthin’ wrong in his life, he can be impeached with the fact that he did. Otherwise, the existence of prior convictions are relevant only for sentencing purposes and so the defendant can demand that any evidence of prior convictions be heard by the judge alone, away from the jury; and virtually every defense attorney will make that demand.

3. The California Supreme Court has ruled that the chief duty of defense counsel is to work to exclude by all legal means any evidence that is damaging to the defendant. After all who needs to be "defended" by someone who just stands by and watches you get steamrolled?

4. Therefore, given the lack of video evidence of an assault and the guards’ motive to confabulate a protective story, the decision to let the jury hear of the defendant’s prior convictions was prejudicial incompetence.

Appellate Court Ruling

The appeals court affirmed the judgment, holding that counsel had not been ineffective because (1) he had not made a decision whether or not his client would testify, and if the client were to have testified, he would have been subject to impeachment with his prior convictions. In addition (2) counsel could have had a valid tactic in hoping that the jury would engage in “nullification” and refuse to convict out of pity once they knew defendant was subject to three strikes.

Critique

1. The court’s first rationale for affirming an otherwise outrageous sentence was ill conceived. A valid tactical decision cannot be based on another tactical decision which has not even be made. I have my thumb my ass, is not effective performance.

2. Furthermore, before a defendant can be impeached with prior convictions he is entitled to a hearing at which the judge will weigh how much of the record the jury can hear. (The Castro/Beagle Rule) In most cases, the number of convictions and their details are limited. The jury will be told that the defendant was “convicted of a felony” because this is sufficient to take away any false halo. But the jury doesn’t need hear that he disembowled his 80 year mother because these details would inflame them. Thus, in this case, the competent procedure would have been to first resolve the possible impeachment issues.

3. The appellate court’s second rationale is equally misbegotten. The principal defect is that defense attorney is prohibited by law from arguing punishment. He cannot say, that his client should be acquitted because the punishment he would be subjected is too severe. The law itself prevents him from using this tactic. It is an utter contradiction for an appellate court to rule that counsel had a valid tactic in adopting a tactic that the law explicitly prohibits.

4. It is true that juries have the power to nullify -- that is, to acquit someone notwithstanding the evidence because they disagree with the law or the possible sentence. That is one of the reasons we have juries -- to protect us from The State Gone Mad. But in this case the jury never heard that the prior convictions were life-sentence “strikes”. Precisely in order to preclude the possibility of nullification on this basis, the prosecutor successfully excluded all references to “strikes”. Thus, not only was defense counsel barred from arguing the point, the jury never even heard what kind of sentence defendant was subject to if convicted. We don't even know if the idea of punishment or the degree of punishment even entered their minds. What we do know is that they heard of defendant's prior record and that every court for 300 years has accepted that such information is highly prejudicial.

5. Last but least, the more sociological question has to be asked: what kind of deranged society sends people to prison for life on account of a petty theft, even if accompanied by a technical assault in which no one was actually injured? When I began practicing law as a prosecutor, the case would have been plea-bargained down on the ground that the defendant had gotten the shit beat of him and that was pretty much punishment enough.

6. Instead we are now in the absurd situation where the "criminal justice system" is furiously shoveling miscreants into Moloch's Maw, while a governor who vetoed a People's initiative to amend the Three Strikes Law, is having to discharge 22,000 inmates because the Mad State of California can't afford the $30,000.00 a year it costs to keep them locked up.

But, that's just my opinion....

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