UVA Lacrosse Player Should Appeal

Posted by joseph bahgat on February 27, 2012

Last week, a Virginia jury found former University of Virginia lacrosse player George Huguely guilty of murder, but found him not guilty of first-degree murder. I'm not at all surprised by the verdict, and my purpose in posting this follow-up is not to call attention to my original post on the subject; rather, one of my colleagues alerted me to an evidentiary issue in the trial, which is something that I haven't heard discussion of in mainstream media coverage, and one that probably had a significant part in the outcome of the trial.

According to Tennessee criminal defense attorney Lee Davis (@LawyerTN), the trial judge substantially limited the testimony of the defense's key expert witness, Dr. Ronald Uscinski, because of a mistake that Huguely's defense team committed when they copied Dr. Uscinski on an email summarizing the testimony of the prosecution's key expert. The judge ruled that Huguely's attorneys violated Virginia's "Rule on Witnesses." Apparently the Commonwealth of Virginia doesn't have their own version of the Federal Rules of Evidence, so they loosely follow the federal rules (and make their own rules up when they feel like it). Virginia's so-called Rule on Witnesses is a variation of Rule 615 of the federal rules, which is designed to prevent trial witnesses who haven't yet testified from changing their testimony because of testimony given prior to theirs. Usually Rule 615 is applied to fact witnesses—people who testify about what they saw or heard, which is relevant to the crime or issue at trial.

Expert witnesses, however, aren't there to testify about facts, or what they saw or heard—their purpose is to provide the jury with scientific evidence that supports one side of the case or the other. Experts typically write reports prior to trial, and the reports are provided to the other side for both scrutiny and trial preparation, so it isn't likely for an expert to change their testimony because it would undermine their credibility if they testified in a manner that was inconsistent with what they previously wrote.

Although my analysis means nil to Huguely at this point in time, it could be a solid foundation for him to appeal his conviction and get a new trial. Ordinarily evidentiary matters aren't good bases for appeals (see, e.g., previous posts here & here) because of the incredible deference that appellate courts give to a trial judge's discretion in whether to admit or exclude evidence, but in this circumstance the judge's decision to exclude portions of Dr. Uscinski's testimony may have deprived Huguely of a fair trial. If so, the judge's evidentiary ruling becomes a constitutional question, or one of "structural error," which garners much higher scrutiny from the appellate court.

This was precisely the situation in a fairly recent decision by the U.S. Supreme Court in which they unanimously reversed the death sentence of a South Carolina man who was convicted of murder after the trial court—on hearsay grounds—refused to allow him to introduce evidence that another person committed the crime. (Even Justice Alito let that guy off the hook!). When I worked for the Court of Appeals of Ohio I drafted a similar decision, which also went one step further and found the state evidentiary rule unconstitutional. The Ohio Supreme Court eventually disagreed as to the constitutional question, but our ruling, for the most part, remained intact.

I'm not intimately familiar with Virginia law, but if I were a member of Huguely's defense team I would be looking to that line of cases for guidance, as well as considering a possible claim for ineffective assistance of counsel.

Braun Decision Affirms Fact that Appeals are Crucial to our System of Justice

Posted by joseph bahgat on February 23, 2012

Braun_batting.jpg

Ryan Braun just became the first major league baseball player to successfully overturn a positive drug test result on appeal, and based on the immediate reactions in the press and Major League Baseball itself, you'd think the Berlin Wall had just crumbled. But before everyone jumps to the conclusion that baseball's drug policy is flawed, or that this outcome will somehow open up the proverbial floodgates to players wanting to challenge their positive drug test results, let's put it in perspective.

Prior to Braun's appeal of his October 2011 test result, twelve other positive drug test results were upheld on appeal. In terms of batting average, that's .077. By comparison, in our civil justice system, somewhere between ten and twenty percent of cases are reversed on appeal (in batting average that's .100 to .200). And according to this NY Times report, two-thirds of all death sentences are overturned on appeal (.666). So if you're José Canseco planning a comeback, don't get your size small jockstrap out of retirement yet.

If you want to be upset about something here, it should be the comments by Rob Manfred, MLB's Executive Vice-President for Labor Relations & Human Resources, who is an attorney (Hahh-vaad educated) and was one of the three attorneys that presided as arbitrators of the appeal:

Major League Baseball considers the obligations of the Joint Drug Prevention and Treatment Program essential to the integrity of our game, our Clubs[,] and all of the players who take the field. It has always been Major League Baseball’s position that no matter who tests positive, we will exhaust all avenues in pursuit of the appropriate discipline. We have been true to that position in every instance, because baseball fans deserve nothing less.

As a part of our drug testing program, the Commissioner’s Office and the Players Association agreed to a neutral third party review for instances that are under dispute. While we have always respected that process, Major League Baseball vehemently disagrees with the decision rendered today by arbitrator Shyam Das.

The reason that Braun's positive test result was thrown out was that after the tester collected the urine sample, he kept it in his refrigerator over the weekend, and it wasn't actually examined until days later when it was received by the lab in Montreal. Some call that a technicality, but in reality, once a urine sample is 24-hours old its clinical significance is worthless by medical standards.

As attorneys, we are sworn to advocate for truth, justice, and the Federal Rules of Evidence, but based on Manfred's comments, his only concern is imposing punishment, rather than making sure that punishment is first warranted or justified. Moreover, the fact that Manfred called out his colleague, for essentially voting in a manner consistent with well-established legal doctrine, casts serious doubt on his integrity. 

Ironically, baseball analyst Tim Kurkjian (@Kurkjian_ESPN), who by the way is not an attorney, hit the ball on the screws in this interview:

Just like in a court of law, both sides had a chance to present evidence, and in this case the evidence went in Ryan Braun's favor.

Did the National League's 2011 Most Valuable Player use banned substances during last season's playoffs? We don't know. After learning about the positive test result from the MLB collection, Braun had a second test performed by an independent laboratory, and that test revealed normal levels of testosterone. Braun also tested negative for banned substances on three other occasions during the 2011 season. That doesn't mean that he was clean when he was tested in early October, but given the circumstances of the first drug test, the results are clinically unreliable, and so punishment would be unjust.

Photo credit: Steve Paluch

UVA Lacrosse Player's Not Guilty Plea is Evidence of a Broken Criminal Justice System

Posted by joseph bahgat on February 07, 2012

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Yesterday in Charlottesville, Virginia Circuit Court, George W. Huguely V (yeah, the fifth) pleaded not guilty to first-degree murder. Huguely is the former University of Virginia lacrosse player charged with murdering his ex-girlfriend, Yeardley Love, also a UVA lacrosse player, in May 2010. According to most reports, Huguely broke down Love's bedroom door and the two had a heated argument, which became violent, and ended only after Huguely slammed Love's head against a wall. Love's official cause of death was blunt force head trauma.

Huguely was arrested almost immediately after Love's roommate found her face down in a pool of her own blood, and he hasn't denied any of the material facts. So why is he pleading not guilty when he's more or less already admitted that he killed her? Although the answer to that question is simple—regardless of whether he admits to killing her, he says it wasn't premeditated—it opens up a controversial discussion over the way that prosecutors charge crimes today.

Historically, the definition of murder is "the unlawful killing of another human being with malice aforethought." Over time the term first-degree murder evolved as the premeditated killing of another human being. This premeditated or first-degree murder has typically been the crime for which the death penalty was sought. In the modern era the death penalty wasn't given for non-premeditated murders. Regardless of these so-called common law definitions of murder, they might as well not exist today because each of the fifty United States has replaced the common (widely accepted for hundreds of years) definition of murder with its own complex, statutory definition.

In addition to each state's independent definitions of crimes, each state now has its own interpretation of the terms that makeup the definitions of their criminal code. The end result of what has become roughly three decades of "improving" the criminal justice system is that today there are many more convicts being sentenced to life (and life-without-parole) sentences, and many others are serving sentences about three times as long as they would have if they'd committed the same crime 30 years ago.

Thirty plus years ago, a young man [first-time felon] would have been sent to a reformatory in hopes that he could be rehabilitated. He would have been eligible for release on parole after 38 months, no matter how many…felonies he had committed. The…parole authority could keep him in custody until it felt he was no longer a danger to society, but it could release him after less than four years of incarceration if he rehabilitated himself or was rehabilitated. [But America] has given up on rehabilitating inmates via reformatories.

Until relatively recently, Ohio had a law on the books which indicated that no matter how many…felonies a person committed, [they] could be released on parole after serving 15 years, possibly less for good time. The legislature wiped out that statute.

* * *

I have a great deal of concern that we are warehousing for life a large number of young men, especially the poor and minorities. I have even more concern that [we] have given up on the whole concept of rehabilitation.

Those are the words of my longtime mentor Judge Gary Tyack of the Tenth District Court of Appeals of Ohio, which is an excerpt from his dissent to a majority opinion that affirmed a 70-year-sentence for a teenager who was convicted of a series of home-invasion burglaries.

Obviously George Huguely is neither poor nor a minority, nor did he come from a broken home, or grow up under any of the other so-called mitigating circumstances that typically lessen the severity of a criminal sentence. There is an even bigger problem with our criminal justice system today, and it isn't the fault of the courts. The problem is the constant pressure that voters put on legislators to be tough on crime, which translates into passing laws that criminalize behavior that once wasn't a crime, or increasing the penalty for the commission of crimes. Once these tougher laws go into effect, it's the prosecutors that foul everything up, by overcharging, which they do in an effort to leverage guilty pleas that result in "fair" sentences. But who is to be the ultimate arbiter of what is fair?

Based on the statements of George Huguely's defense team, it sounds like they would concede that he is guilty of either murder or manslaughter. If the prosecutor charged Huguely with either of those, they would likely get him to plead guilty, and he'd be sentenced to somewhere between five and twenty-five years in prison. By charging him with first-degree murder, however, Huguely is facing life in prison. There's no incentive for the prosecutor to charge appropriately, so they treat their jobs like credit cards—they charge 'em up as high as they can go.