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What's Up in the 8th

No trial judge likes to be reversed.  First, there's the public proclamation that You Screwed Up.  To be sure, the chances that the electorate is going to be glued to its computer monitors each Thursday morning at 9:00 o'clock when the 8th District announces its decisions is non-existent, but there's still the blow to the ego.  Then there's the prospect of having to do something all over again.  Like a trial that took a week to begin with.

Oddly enough, in my conversations with judges, I've found that they seem more upset about being reversed on some diddly matter.  For a while there, it was post-release control; hardly a week went by that two or three cases weren't sent back so that judges could say the magic words, correctly this time.  Then there was the matter of forfeiture specifications, but there was oral argument on a case on that a few weeks ago in the Supreme Court, so that may be get ironed out soon, too.  The current bugaboo is restitution.

It used to be that judges could toss the whole thing into somebody elses lap by putting in the entry, "restitution as determined by the probation department."  That doesn't work; the statutes clearly require a hearing if restitution is disputed.

But it doesn't have to be much of a hearing, the court explains in State v. Weaver, and certainly not a trial where the defendant has the right to confront witnesses.  In Weaver, the prosecution simply proffered the receipts of damages that the victims had submitted to the probation department.  The defendant maintained only a "generalized objection" to the amount, and didn't present any contrary estimates, so that's good enough.  But "good enough" only goes so far, and it doesn't go as far as the State would like in State v. McRae, where the judge ordered restitution of $560 to repair a door because the prosecutor said that's what it would cost.  Looks like you at least need receipts.

While trial judges learn some lessons about restitution, the defendant in State v. Bandarapalli learns some valuable life lessons.  Number one is that, if you're a pimp, your girls will rat you out just to get out from under a misdemeanor soliciting rap, although it's my guess that this did not come as news to anyone besides Bandarapalli.  Number two is that if you use your car to drive your ladies to their assignations, the State gets to keep your car.

Perhaps the most interesting case this week -- besides the one we'll discuss tomorrow -- is State v. Lewisan appeal from  Lewis' conviction of killing his cousin.  Apparently, during the trial the rules of evidence were honored mainly in the breach.  We have this:

Cynthia [defendant's aunt] testified that it was her personal opinion that defendant had committed the crime. Under cross-examination she admitted that this was not based on any evidence but was told to her by the Lord during prayer. Conversely, the victim's mother, also defendant's aunt, echoed defendant's father's opinion that defendant had not committed the murder and explained that this opinion was derived from the evidence and their understanding of his relationship with his cousin.

Apparently, Gallup hadn't completed its polling of the neighborhood, so those opinions weren't available for trial.   Then we come to this:  During the direct examination of Cynthia, the prosecutor also asked her this question:  "Did your brother [the defendant's father] ever make a comment to you that you felt was concerning to you?"  To which she replied that he'd said, "Don't be surprised if [defendant] has something to do with this."  The court finds this to be hearsay, but says that the damage was repaired when the father took the stand and denied making the comment; in light of that, the error was harmless.

Well, I'm sorry, I don't buy that, for two reasons.  First, the court had just spent the better part of seventeen pages rejecting weight and sufficiency issues, but the evidence was far from overwhelming.  As for the father's denial, that may have sounded like an "unequivocal refuation" to the appellate court, but the jury might well have discounted it because of the relationship between the witness and the defendant.  Second, I take the approach that the flagrancy of the violation is a factor in determining error.  No, there's no legal basis for that approach, but there's no legal basis for a prosecutor asking a question like this -- not even a remote one.  You reverse cases where the prosecutor has engaged in a flagrant violation of the rules of evidence, and you'll find that the number of those violations decrease.  You don't, and they won't.

Another homicide case produces an interesting precursor to a US Supreme Court oral argument this week.  In State v. Zimmerman, the coroner testifies at trial.  Except he wasn't the coroner who actually performed the autopsy.  Back in 2006, the Ohio Supreme Court said there was no problem with this in State v. Craig, holding that an autopsy was a "business record" and thus non-testimonial.  Craig served as the basis for the court's later ruling in State v. Crager, upholding the testimony of a DNA analyst when the one who performed the test was unavailable.

The court reversed itself after SCOTUS' decision in Melendez-Diaz v. Massachusetts, but that didn't affect Craig.  At least according to the 8th; last year, in State v. Monroe, they relied exclusively on Craig in holding that "autopsy records are admissible as non-testimonial business records."

As I wrote in my discussion of Monroe when it first came down, the decision, and Craig itself, are highly questionable, especially in light of the Supreme Court's ruling last year in Bullcoming v. New Mexico.  Craig was essentially based on the view that coroners are fungible:  if the defendant got the opportunity to cross-examine one, even if he wasn't the one who performed the autopsy, that was good enough.  That argument was rejected in Bullcoming, where one analyst sought to testify as to the results achieved through a blood alcohol test done by another.  Not good enough, said the Court.

Zimmerman has to deal with Bullcoming, which Monroe did not.  (It came out the same day as Bullcoming.)  It does so by following Craig and concluding that the autopsy report is not testimonial, because it was not prepared solely for use at trial, but was instead "produced as part of the ordinary course of business in the coroner's office."  Well, that's true, but the certificate in Melendez-Diaz was produced in the ordinary course of business in drug lab, and there's nothing to indicate that something has to be prepared solely for trial in order to trigger the right to confrontation.

That doesn't mean Zimmerman is wrong; a critical distinction is that the coroner who testified also observed the autopsy being performed.  Whether that's enough will be clearer once SCOTUS gets around to clarifying it, and we'll talk about on Thursday.

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