The Results Are In

Judge James Doogood had been appointed to Superior Court by the governor just five months before Edna’s homicide case was assigned to him for trial by the Presiding Judge.  He was excited to get such an important case, and at the same time nervous about such a responsibility as a new judge.  His 20-year law practice had been all civil, with no criminal cases in his history.  After the trial, in which the defendant was found guilty of Second Degree Murder, Judge Doogood sent the following letter to his father, a retired federal judge living in Florida.

Dear Dad,

I hope the fish are biting and you are getting lots of time on the lake.  I just finished a big trial and I’m dying to talk about it but can’t say anything to anyone.  The case is sure to go up on appeal and I can’t ethically talk about it while it’s still live.  You are not just anyone, and I know you wouldn’t tell anyone else, so I’m venting only to you.

It took two days to pick a jury and a full day for both sides to give their opening statements.  Then the challenging part got started.  Right off the bat the prosecutor threw me a curve.  She asked me to take judicial notice that “arsenic has a bitter taste.”  I told her, “There are some things a court can take judicial notice of, such as the court’s own files, state and federal laws and regulations, and facts of general knowledge of which there is no dispute, such as the fact that Ohio State beats Michigan in football 92 percent of the time.  But the taste of arsenic is not one of those things.”

Well, as you know, every time we make a decision we make a temporary friend and a permanent enemy, so the prosecutor and I started off on the wrong foot.  Things settled down a bit after that, though, and the trial was pretty standard except for a few tricky evidentiary issues.  I thought I would get your take on them.

The coroner testified to his opinion that Edna died as a result of arsenic poisoning.  He based his opinion in part on a toxicology report that showed a lethal level of arsenic in her blood.  The prosecutor offered into evidence a toxicology report from the crime lab purportedly showing a high level of arsenic.  The defense attorney jumped up quicker than a bass hitting on a whopper popper, shouting, “Objection, hearsay!”  The prosecutor said, “Your honor, this is a business record.”

“No it isn’t,” said the defense attorney, adding, “Besides, we have a right of confrontation and cross examination under Crawford.”

I figured he was talking about Crawford v. Washington, a 2004 U.S. Supreme Court case.

“Maybe so,” I said, “but every attorney knows that an expert can rely on hearsay as a basis for expert opinion.”

“Not so fast, your honor,” said the defense attorney.  “People v. Sanchez, (2016) 63 Cal.4th 665 tells us that it isn’t so anymore.  The logic is that the jury is likely to accept the report as true simply because the expert accepted it.”

Oops, I thought, I should probably spend more time reading the Daily Journal and less time following POTUS tweets.  I disallowed the report as evidence until the lab technician herself testified later in the trial.  I did allow the coroner to testify that he relied in part on laboratory results.

Next the prosecutor offered into evidence a screenshot of the defendant’s Facebook page.  A prominent photograph, dated two days after Edna died, showed a jubilant defendant holding a bottle of Nock-m-Dead rat poison.  The caption read, “This stuff really did the job!”

As the defendant’s face turned noticeably white, the attorney struggled to his feet and offered meekly, “Objection, this is hearsay.”

“Of course,” said the prosecutor, “but it is arguably an admission by the defendant.”

Defense counsel thought for a moment, then said, ”Even if it were an admission, the statement is not from a person, but from a computer that is reproducing it from another computer.  It’s the computer doing the talking here, not the defendant.  Anyone could have posted it there.  Also, any decent Photoshop user can make a fake image look real.”

I thought that might be a pretty good argument, but the prosecutor had a come-back ready.

“Under Civil Code 1633.13, evidence is not made inadmissible merely because it is in electronic form.  Also, People v. Goldsmith (2014) 59 Cal. 4th 258, lays out a roadmap for admissibility of electronic evidence, including digital photographs.”

The defense screwed up his face in defeat, saying, “All right, but if you’re letting it in, I move to admit previous photos and statements in defendant’s Facebook account under Evidence Code 356.  Those entries will show a long history of defendant’s battle with a nest of rats outside the house.  While I normally can’t introduce statements of my own client, under 356 when the prosecutor offers one statement, the whole “conversation” can come in to put everything in context.”

The prosecutor had no response to that, so I let all of the relevant Facebook evidence in.

The defense attorney then offered a photograph as an exhibit.  It was a red light camera photo that showed his client going thru an intersection five miles from Edna’s house.  A date and time were displayed along the bottom of the photo showing that the photo was taken at 10:00 am the day before Thanksgiving.  The prosecutor stood and shouted, “Objection, hearsay.”

Well, we both know that hearsay is a statement of a person, so the photo itself couldn’t be hearsay.  I said, “Overruled … on that ground.”

Well, that got her thinking, so she ventured, “Objection, relevance?”

I wasn’t inclined to make her case for her, so I said, “You’re getting warmer.”

After more thought her eyes lit up, “Objection, lack of foundation!”

“Bingo!” I said.

The prosecutor wasn’t done, though.

“Your honor, the foundation for a photograph is that the image accurately depicts the scene it purports to show.  If counsel can’t produce a witness who can testify to that, or establish that the computer process that produced this photo is reliable, it doesn’t come in.  Besides, if it was a person who keyed in the date and time, rather than an automatic computer-generated time, the date and time information on the photo is hearsay and inadmissible without the entry person here to testify.”

Wow, I thought, she’s smarter than I thought!

Just as I turned to the defense attorney for a response, the investigating officer tapped the prosecutor on the shoulder and whispered in her ear.  She quickly stood up and announced, “Your honor, I withdraw my objection.”

I was mystified, but said, “Without objection the exhibit is admitted into evidence.”

Later in the trial, the officer testified that there is a Home Depot at the corner depicted in the photo that sells Nock-m-Dead, a liquid rat poison containing arsenic.

The prosecutor called attorney Mel Practiss to the stand.  Right away the defense counsel stood and asked for a sidebar.  I had an idea where this was going, so I excused the jury and put it all on the record.  The attorney said that the prosecutor was about to introduce a lot of hearsay from this witness, things said in the last meeting Edna had with Mr. Practiss, her attorney.

“Your honor,” he said, ”The whole meeting is covered by the attorney-client privilege under evidence code 952.”

“No,” said the prosecutor, “the attorney-client privilege is held by the client, and she is clearly not able to claim it.  She’s long gone.  Also, there was a third party present, Carla, so there was no confidentiality.”

I simply nodded as counsel replied, “Aha, but the third party held Edna’s power of attorney, so she was a part of the communication.”

“Yes,” said the prosecutor, “but the witness will testify that the power of attorney was because of Edna’s physical limitations, not mental, and the person said nothing in the meeting.”

At this point my head was spinning from bouncing back and forth between counsel, as if I was mid-court at a tennis match.  Before I could say anything, defense counsel said, “Even if she’s right about the privilege, it can’t come in because of People v. Byron (2010) 170 Cal.App4th 657.  Citing Crawford, the Byron decision said, ‘Thus, out-of-court testimonial statements are admissible only when the witness is unavailable and there has been a prior opportunity for cross-examination of that witness.’”

Boy, I thought, life was much simpler before Crawford.

I allowed Edna’s attorney to testify about Edna’s observed demeanor and the changes he made to her estate plan as a result of the meeting, but not about her statements in the meeting.

The prosecutor offered into evidence the secret recording of Carla made by Denise.  After the usual round of arguments between counsel about the hearsay elements, the defense attorney said, “The hearsay arguments aside, Penal Code 632 forbids introducing into evidence any recording made between two parties where there was no consent by both parties to the recording of the conversation.In fact, doing so is a misdemeanor and carries a civil penalty of $3,000 for each recording. There was no knowledge by Carla that it was being recorded, so it can’t come in.”

The prosecutor replied, ”There’s an exception for recordings made to collect evidence of a crime.  Also, Penal Code 633.5 makes an exception when the conversation contains evidence of a serious felony.”

“I grant that,” said the defense counsel, “but neither of those elements apply here.  The conversation was recorded long before the events in this case occurred, and the statements recorded have are tangential to the elements of the offense charged here.”

This was a tough call, but I felt that I had the discretion to call it either way.  “It’s clear that the statements may be used to impeach testimony of a witness,” I said, “but I am finding that the statements do not meet the test under Penal Code 633.5 to allow admissibility ab initio.  (I like to throw a little Latin in occasionally to sound authoritarian.)

The prosecutor informed the court that she wished to introduce statements Ivan made to Officer Whodunit.  She stated that her office had served a subpoena on Ivan, but Ivan notified her office that he wouldn’t appear because he felt that INS would be there to take him into custody.  The prosecutor moved to find Ivan unavailable as a result.

Thinking quickly, defense counsel asked, “Can you produce proof of service of a subpoena?”

The reply was, “Yes, I have proof of mailing by certified mail, and the mail was not returned undelivered.  That’s our standard practice on subpoenas unless there’s a problem.”

“Counsel hasn’t made an offer of proof under Evidence Code 402, so we have no idea of what is relevant in all of that hearsay,” defense counsel said.  “Besides, if there was no personal service on the witness, there is no way to enforce his appearance.  That does not mean that the witness is unavailable, it simply means that there is no witness available to call.  Evidence Code 240 gives a lot of guidance about what constitutes ‘unavailability’, and People v. Salas (1976) 58 Cal.App.3d 460 has a great discussion of what is necessary as a showing of due diligence to enforce attendance.  This service attempt doesn’t even come close to being adequate.”

The prosecutor was at a loss for words for a change.  I denied the unavailability request.

The defendant’s motive was admitted into evidence per Evidence Code 1103(b). I also allowed Edna’s dying declaration to be considered by the jury based on Evidence Code 1242.

Finally Daisy, an 11 year old minor, was called by the prosecutor.  We had a discussion in chambers about her testimony the day before she was to testify.  There were two concerns.  First, I had to address her competency to testify.  Then we needed to protect her from the trauma of being in the courtroom environment.  With the agreement of both attorneys, Daisy was brought into the courtroom first thing in the morning with no one else there to get a feel for what would happen.  Then we arranged a television hookup from an available jury room so she would not be in the actual courtroom while testifying.  An adult with whom she was comfortable was with her, outside the view of the camera during her testimony.  The support person was cautioned not to coach or in any way communicate with Daisy other than to be there for her.

After I asked a couple of questions tailored to be sure she knew the importance of being truthful, and more to confirm that she had an actual recollection of the events, the prosecutor simply elicited that she remembered seeing grandma make a strange face when she tasted the wine, and then that Carla and her boyfriend brought something in a brown paper bag when they arrived.  To his credit, the defense attorney was gentle with her on cross-examination.  He won a few points with the jury (and with me) with that.

Well, dad, those were pretty much the sticking points in the trial.  Oh, while leaving the courtroom in custody, the defendant turned and shouted, “Judge, kiss my a$$.”

I was about to respond in kind, when I noticed that we were still on the record.  I simply smiled and replied, “Motion denied!  Have a nice day.”

Thanks, dad, for all of the great advice you’ve given me.  It helped me get through my first big case.  I hope to be there in a few weeks to help you catch some big fish.