Mayhand v. U.S.: “A Statement is Not an Excited Utterance Unless the Declarant is Manifestly Overcome by Excitement or in Shock.”

September 30, 2015

D.C. Court of Appeals Judge Catharine Easterly writes what I think. The difference is that she finds the words that elude me. And the words she writes impact D.C. law. Her impact continues in Antoine Mayhand v. United States, ___ A.3d ___ (D.C. 2015).

The “excited utterance” exception to the hearsay rule is over-used. Prosecutors can get lazy: How hard is it to elicit testimony that the person making the statement was “excited”? This is what Judge Easterly means by “rote recitations that the declarant was upset or excited or afraid.” In addition, police officers are well-trained. They think ahead to trial. I love it when I see in a police report something along the lines of “the suspect then said in an excited utterance…” I can usually have some fun with that on cross-examination: How often do you hear a phrase like that in ordinary conversation?

The complainant in Mayhand never testified. Instead, the defendant was convicted of obstruction of justice on the basis of a 911 call introduced by the government. During the 17-minute call that was played for the trial court, the complainant narrated his continuing interactions with the defendant, at times interrupting his conversation with the 911 dispatcher to shout out angrily at Mayhand. Four times during the call, the complainant claimed that Mayhand threatened at some undetermined time to stab him.

The claims of the threatened stabbing were admitted into evidence on the basis of the excited utterance exception. The government also introduced evidence that, at the time of Mayhand’s arrest, he shouted out obscenities and accused the complainant of being a “snitch.” The officer testified that, at the time he came into contact with the complainant, the complainant was “trembling, had beads of sweat on his face, was constantly looking over his shoulder, was breathing quick, and had a visible vein along his neck” that was “pulsating very quickly.”

Judge Easterly emphasized what should be the “limited scope” of the hearsay exception: A “statement is not an excited utterance unless the declarant is manifestly overcome by excitement or in shock.” A “state of nervous excitement or physical shock” requires a “much higher level of emotional upset” than “mere vocal strain or indication of some anxiety.”

The judge continued: The “contemporaneousness of the statement with the excited event and the related ‘critical requirement of spontaneity,’ must be given equal and careful consideration.” Finally: The “totality of the circumstances must be scrutinized for indicia of self-awareness and reflection that are inconsistent with the ‘immediate and uncontrolled domination of the senses’ necessary to establish an excited utterance.”

Effective <--->  Ineffective Assistance of Counsel

August 28, 2015

I am doing a court-appointed criminal appeal, and I am cranky with the defense lawyer who tried the case. He won’t return my phone calls. He won’t send me the trial file. I have no idea why he appealed. And I find, upon reviewing the trial transcript, that he messed up the one potential area for reasonable doubt by asking questions on cross-examination that he should have left alone. Sometimes the unwitting defense lawyer can be the government’s best friend.

Our client was convicted of possessing drug paraphernalia. The case law is clear that, when it comes to implements with both legal and illegal uses, the government needs to prove something more than simple possession. This might be the presence of other things suggesting drug use – drug residue, for example.   In some cases, the government even calls an expert to testify to possible uses of the device.

There was no evidence of any of that in this case. That is, of course, until my colleague began his cross-examination. Oh yeah, said the officer when prompted. I almost forgot: There was residue from a white powdery substance at one end of the straw. I field tested it and it came back positive for cocaine.

Because he won’t return any of my calls, I track the trial lawyer down in court. He tells me he filed the appeal because he wanted to cover his behind. I am still puzzling over this.

Now compare this guy with my friend and colleague Noah Clements. I had mixed feelings about being assigned a case for which Clements had served as trial counsel. What if I have to go with ineffective assistance of counsel?

Clements puts my mind to rest immediately. You need to claim ineffective assistance of counsel. This is the first thing he tells me while handing over the trial file.

As it turns out, there is no basis for an ineffective assistance of counsel claim. No surprise there. And, because Clements knows how to preserve the record, the brief is one of the strongest I have filed in a while.

Daniel Snyder Is To Blame for RGIII

Robert Griffin III has been a tremendous disappointment.

I vigorously opposed the trade. But that doesn’t mean I wasn’t excited when the team went ahead and drafted him. I thought, maybe, just maybe, this might be our time again.

My 20-year-old son has been a Redskins fan his entire life. He gets it from me. And I feel terrible that, year after year, I have set him up for disappointment. Although I can remember the glorious 80’s, the most the team has ever done during my son’s life is to win a couple of playoff games.

When I was a boy, my favorite team was the Green Bay Packers. It was not that I had ever been to Wisconsin. It is that it is much more satisfying to cheer for a team that wins every once in a while. You have to admire my son’s loyalty.

Griffin’s problem is that, in trying to be great, he has tried to bypass being competent. He is like Heath Shuler saving his game jerseys for when he is inducted into the Hall of Fame. He wants the touchdown when he should be going for a couple of yards.

But for the micro-management of fan-in-chief Daniel Snyder, RGIII would be sitting on the bench this season – for another team. You play the players who produce for you, no matter where they were drafted, no matter how much you are paying them. And you don’t prevent your head coach from doing his job. This undermines team morale. It can ruin a locker room.

But we needn’t worry.  I don’t guarantee much in my profession.  But I will guarantee this:  It is only a matter of time before RGIII is injured yet again.  And at the time, hopefully, we will be moving onto a different quarterback, this time for good.  Because, after all, have you ever seen a more fragile football player than RGIII?

How Quiet In This Room That Holds Us Both

July 30, 2015

“It is what it is.”

The detective says this many times throughout the two-hour interrogation of your client.   It is a phrase with no meaning, a verbal tic; a space-filler you throw in there in the guise of saying something profound.

The interrogation ends, and the detective leaves the room. The camera continues to record. Your client is still. With the silence comes realization.

Keeping the Torch Lit

July 29, 2015

Guest Post by Mary Anne Brush

(Re-printed from the Grosse Pointe News)

Two milestones mark either end of my summer. My 90-year-old mother died at the end of May and my youngest child will leave for college at the end of August. Within the space of three months, I will have become both an orphan and an empty nester.

The death of a second parent comes with an entirely different set of issues than the loss of the first. When my father died nearly five years ago, we focused on how best to support our mother. She remained in the house in Amherst, MA the two of them had shared for nearly 60 years of marriage and appeared to carry on with her usual blend of positive energy and stoicism.

Over the years, however, her activities lessened, her interests waned and her mind deteriorated. Years of purpose — raising five children, sharing the duties of a home and family with a husband, traveling extensively abroad, and pursuing career as a teacher — had narrowed to a chair in her living room.

In some respects, her death brought closure. We took comfort in seeing the urn containing her ashes placed in the ground next to our father’s gravestone — “a beautiful spot on the slope of a hill, just a couple of feet from where the grass meets the woods,” as my brother described it in his eulogy. My sister posted a picture on Facebook of our parents walking on the beach in Cape Cod, the site of our annual family vacation.

“I like thinking of grandmother and grandfather walking off into the distance, hand in hand,” my younger daughter texted me. So do I, I responded.

Now that the two of them are together again, their five progeny are left to settle matters with their house, belongings and affairs. Decisions that were once theirs now rest with us. The house: do we keep, rent or sell it? Should we put down a deposit for one more summer at the Cape, extending our family reunion one more year? What do we do with the accumulation of 60 years of marriage; how do we decide what should be saved, what discarded and what sold?

Fortunately, there are companies that help families with these decisions. I am familiar with such companies in Grosse Pointe, but was not aware what an incredible resource they are, saving not just time and money but emotional distress. They salvage what should be salvaged and dispose of what, were the decision up to us, would cause considerable anguish.

My siblings and I have met twice to go over financial matters and to lay claim to what means the most to each of us. We trust each other with these decisions. One of my brothers asked for the clay lion our father made in a ceramics class decades ago. The lion, a mainstay in the window of our father’s study, now has a new place of repose on the windowsill of my brother’s home office in Baltimore. My other brother asked for our mother’s journals and her unpublished mythology manuscript. (We joke he knows something we don’t; our mother’s journals will earn him millions on the New York Times bestseller list!)

I requested the blue china my father, an officer in the Navy during World War II, bought in Japan and carried across his back for his mother during a Christmas furlough. I have always held a romantic image of my father on the dock in his white dress uniform with that box of china on his back, the destroyer the USS Southerland in the distance.

My siblings and I will get together one more time at our childhood home before the estate company descends upon us. We will make decisions we can never undo. The increased communication has brought us to a new level of trust and closeness. We have set up a group message on our phones and sometimes we get more accomplished via text than in person. Technology helps us transcend distance and proceed along this journey to becoming the people our parents once were: that “older” generation our children look to for advice, comfort and support. We must keep the torch of purpose lit for them.

I believe I will survive this transition in my life and enjoy even stronger family bonds as a result. As for that other milestone? My husband and I drive our son to Emerson College in Boston on August 22. Stay tuned.

The SFSTs Have Never Been Peer Reviewed

July 11, 2015

Peer review is a critical component of any scientific research.   You don’t simply expect people to take your word for it. Instead, you send things out to other experts in your field and you say: I am confident in the results I have received. But have at it.

Scientific results must be reproducible, preferably by independent, outside parties. Finally, you need to watch out for the phenomenon of “confirmation bias,” which one authority has defined as “a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.”

The Standardized Field Sobriety Test (SFST) battery, the collection of three tests used nationwide to decide whether or not to arrest someone suspected of drunk driving, fails on all three counts. It was never peer-reviewed. Its results have never been reproduced. And since the person who was asked to “validate” the reports – Dr. Marcelline Burns of the Southern California Research Institute — was the same person who was paid to develop the battery, it is fair to say that that the validation results may have been subject to “confirmation bias.” To say the least.

So how is it that these tests are now widely accepted by courts throughout the country? Therein lies a lesson in the evils of one jurisdiction simply adopting the findings of another.

Many of the first jurisdictions to admit testimony on the three tests – the horizontal gaze nystagmus (HGN), the one-leg-stand (OLS), and the walk-and-turn (WAT) – did in fact entertain evidence with respect to the scientific and technical rigor of the SFST. The problem was that, in so doing, the vast majority of them based their decisions on testimony and written studies by none other than Dr. Marcelline Burns herself. As a U.S. District Court in Maryland put it, Dr. Burns has been a “ubiquitous – and peripatetic – prosecution expert witness testifying in favor of their accuracy and reliability in a host of state cases, over a course of many years.” United States v. Eric Horn, 185 F.Supp.2d 530, n.14 (2002). This is putting it politely.

Other jurisdictions never even conducted their own evaluations. Instead, they simply adopted the findings of other jurisdictions. With respect to the Horizontal Gaze Nystagmus in the District of Columbia, for example, the D.C. Court of Appeals cited decisions by courts in Iowa and Ohio as the basis for its conclusion that “testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus is admissible without need for further scientific evidence.” Karamychev v. District of Columbia, 772 A.2d 806, 812 (D.C. 2001). The Iowa and Ohio courts both based their acceptance of the HGN on an Arizona court decision. And the Arizona court based its decision on expert testimony and written materials by Dr. Marcelline Burns.

Trial Transcript: New Prosecutor Struggles With Basics of Direct Examination

June 22, 2015

A: It is a photograph of the bottle that was thrown through the window.

Q: How did you find that bottle?

A: I didn’t find the bottle. The policeman found the bottle.

THE COURT: So she didn’t find the bottle. It seems that you put facts in your question that aren’t in evidence. Did you want to rephrase the question?

PROSECUTOR: Permission to rephrase.

THE COURT: That would be a good thing.

Q: Do you know how the bottle entered that room?

A: Through the window.


THE COURT: Just a second. Knowledge is something that one gets from hearsay. In other words, if you want to ask her whether she saw it with her own eyes that would be a different matter, but it’s not something she can testify about if somebody else told her.


Q: Did you see that bottle come through the window?

A: No.

Q: Is that the bottle that entered through the window?


THE COURT: So you’re asking her a question that she’s not competent to answer, because she doesn’t have a basis of knowledge, so I sustain the objection.


Q: Was that bottle in your room, was that your bottle?

A: No.

Q: Was that bottle in your room at 9:00 in the morning?

A: No.

Q: Was the window pane unbroken that morning?

A: Are you asking me was it broken? No, it was not broken that morning.

Q: And it was broken is what startled and awoke you, is that correct?

DEFENSE ATTORNEY: Objection. Leading.

THE COURT: Sustained.

. . . Q: Ms. Jones, how sure are you that you saw the defendant after the bottle came through the window?

DEFENSE ATTORNEY: Objection, Your Honor.


DEFENSE ATTORNEY: It hasn’t been established that that was what through the window.

THE COURT: Oh, all right. And so are you understanding the basis for his objection?

PROSECUTOR: Not entirely, Your Honor.

THE COURT: Well, she didn’t see a bottle come through the window, so stop putting that in your question. There’s a bottle some place in her place that she’s just identified. There’s a broken window that startled her. But don’t put into questions things that she did not see and hasn’t testified to.

PROSECUTOR: Well, I believe –

THE COURT: So I’m sustaining that objection.

“Badgering” the Witness at a CPO Hearing

June 19, 2015

BaltimoreGraffiti.30The judge informs me that I am “badgering” the witness.

I have heard of “arguing with a witness” and “harassing a witness.” Until the judge accuses me of “badgering” the witness, however, I didn’t even know there was such a thing – other than on TV, of course.

The witness is the petitioner in a civil protection order case. I represent the respondent. I have asked her a series of leading questions. She is pleasant and smart. She is also very motivated, and seems to feel compelled to explain every answer she gives me.

This is where the “badgering” comes into play. I tell her she should answer the question I ask her, not the question she wants me to ask. I also tell her that if I want an explanation for one of my “yes/no” questions, I will ask her for it.

The trial team at Temple Law used to call this “spanking” a witness. The judge calls it “badgering.” “If you have a problem with the way the petitioner is testifying,” the judge tells me, “you should take this up through the court..”

It is true. I was in fact arguing with the witness. This is unseemly and undignified, and I am irritated with myself for having succumbed to the temptation. With the witness and me quibbling like a bunch of teenagers, this is not exactly the image of myself I was hoping to project.

Although I heed the judge’s advice, I have to say that asking the court for an instruction is a little bit like going to a parent to tattle on a sibling: You have to be careful not to come across as whiny. Sure enough, the next time the petitioner tries to add an explanation to one of her answers, the court does in fact instruct her to simply answer my question. “You have a very good lawyer,” the judge tells her. “She will have the opportunity, on redirect, to follow up with any questions she wants to ask you.”

The petitioner looks appropriately chastened.  Lesson noted, I move on.

Double-Counting Police Officer Observations in a DUI Case

June 17, 2015

In DUI cases in which a suspect refuses to submit to a breath, blood or urine test, judges will typically base a guilty verdict on two different considerations. First, there are the results of the Standardized Field Sobriety Test (SFST). Second, there are the police officer’s observations with respect to the suspect’s appearance and demeanor at the time of the arrest. It is not, the court acknowledges, that either consideration in itself would be enough to find the suspect guilty. It is only when the court combines the two considerations that the court can be assured of being within “beyond a reasonable doubt” territory.

There are two problems with a verdict that was arrived at this way. First, because the SFST has never been peer-reviewed or accepted for scientific validity by any authoritative group outside a small group of self-interested proponents of the test, any such verdict would have been based on an unproven technique for assessing impaired driving ability. Second, because police officer observations of a suspect had already been factored into NHTSA claims with respect to the accuracy of the SFST, any reliance on the officer’s personal observations in addition to testimony about the SFST would mean that the verdict was based on a double-counting of these observations.

Here is the portion of the “San Diego validation study” that spells this out: “Upon commencement of the study period, participating officers used only the SFST battery (i.e, Horizontal Gaze Nystagmus, Walk and Turn, One Leg Stand) together with their observations of a driver’s general appearance and speech, to establish inferences about a subject for whom there was reasonable suspicion of driving while impaired.” Jack Stuster and Marcelline Burns, “Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent: Final Report,” August 1998, page 13. (Emphasis added.)

In the other words, according to my reading of the study, the accuracy rates claimed by NHTSA (88% for the HGN, 79% for WAT and 83% for OLS) are not based solely on police officer observations with respect to the suspect’s physical performance during each of the three tests. Instead, the officer’s personal observations about the “driver’s general appearance and speech” are also factored into the equation, along with any aberrant driving behavior that brought the suspect to the attention of the police officer in the first place.  Combining SFST accuracy rates with the officer’s personal  observations of the suspect’s appearance and demeanor would thus result in double-counting.

“Your Breath to Keep Me Up”

June 6, 2015

Many years ago, our mother had to go to the hospital, and it took the doctors a long time to figure out what was wrong with her. During that time, she was running a very high fever and was delirious. She was also being uncharacteristically difficult. They took her children out in the hall separately to ask us questions.  We realized later they suspected that she was also suffering from alcohol withdrawal.

They interviewed Ray and me together. No matter what the questions were, they kept coming back to her drinking habits. Yes, Ray said, she did occasionally have a glass of wine with dinner. He put his thumb an inch from his pointer finger to show them just how small the wine glass was. Their eyes lit up. They were convinced they had the found their answer.

Ray and I could only laugh. It was funny for us to think that this daughter of a tee-totaling Presbyterian minister had a drinking problem. Of course they finally figured out that what she really had was pneumonia.

The point of all of this was this: During the time she was delirious, she couldn’t tell you who the president was. She couldn’t even tell you what year it was. But no matter how crazy my mother appeared to be, she never forgot – for even a moment – who her husband was, who her children were, and who her grandchildren were. And the love she had for all of us – even at the height of her delirium – was palpable.

* * * * *

My mother never lost that love.

Ray and I came up to Amherst just a couple of weeks ago to see her, and I spoke with her on the phone the day before she died. She had lost her appetite. And we couldn’t coax her out of her bed. Mom, Maggie said, you have to eat. You have to move. (Maggie has always been kind of bossy.)

But she was happy. She was reading her kindle. She told Maggie that she enjoyed lying in her bed, just thinking about us all. She was at peace. And no matter what else that was going on with her, you could feel that love – that mother’s love – coming from her.

* * * * *

Her love extended well beyond her family.

She loved this church and all her friends here. She and my father were members of the church for over 60 years. She served as director of children’s studies back in the early 70s. Dick thinks of her sitting over there on the left. I like to think of her in the front pew because that is where she and my father sat during the weddings of all three of their daughters.

She loved Muskingum College. She went there and many of her cousins went there. Her grandfather and uncle both served as presidents of the college. She was very proud of that fact.

She loved her enormous community of friends here in Amherst. She loved her bridge club of over 60 years. She loved her poetry club. She loved her bible study group. And her family benefitted last night from the generous food and drink provided by the travelers club. Thank you very much to the club for that.

She loved Hills Road. She helped the organize the annual block party many years ago. In later years, it was very comforting for her children to know that she had the Ralphs on one side, the Snoeyenbos’ on the other, and Cliff Wilkinson across the street.

She loved her colleagues and students at Amherst Middle School. She loved her little brother John McIlvaine. She loved her nephews and nieces: the Moores, the Michaelsens, and the McIlvaines. The Offutts, the Greenawalds, and the Budynas. It would have brought her great pleasure to know that all of those nephews and nieces are here today. She loved her 13 cousins in the Montgomery family. And she loved her grandchildren.

* * * * *

Our mother also loved to tell stories. And she was a great storyteller.

She knew to take her time, to relish the details. She always took lots of detours – to explain a particular relationship or to note something that might be of interest. Sometimes it was of interest. But she always got back on track. She always knew where she wanted to end up. And it was fun to hear the same stories over and over again. There is something so reassuring about the predictable.

Her favorite story, of course, was the one about her father being taken captive by the Germans during the First World War. At the prison camp, he met a Red Cross nurse who, taken by his blue eyes, slipped him a rabbit under the camp fence. Later, her father was filing past a group of Russian prisoners, many of whom had been at the camp a lot longer than he. Her father picked out the Russian he felt was most in need and he gave the rabbit to that Russian.

Years later, my grandfather was walking down the street as the new minister in Indiana, Pennsylvania when a man ran out and hugged him. “Don’t you remember me?” the man said to him. “You saved my life.” It was the Russian he had given the rabbit to.

* * * * *

Our mother was always very trusting. You might even say gullible. She would believe anything you told her.

At one point it occurred to me that this was really some grand strategy on her behalf. She trusted you so much you didn’t want to betray that trust. Her absolute faith in you inspired you to be worthy of that faith.

* * * * *

You cannot talk about my mother without also talking about my father.

My father always felt like he was the luckiest man on earth for having won my mother’s heart. It was like he had won the lottery, the Superbowl and the World Cup all at the same time.

We talk about how she accepted his proposal of marriage at Princeton. What we didn’t talk about was the number of times my father asked her to marry him and she said no.

My father loved this story: He and my mother were sitting in a diner early in their relationship. The waitress came up. “I am sorry to bother you,” she said. “But I have to tell you: Never before have I seen a couple so in love.” My father was very happy to hear this. Then came my mother’s response: “Let’s just say we are very good friends.”

But eventually my mother came around.

* * * * *

Our father wrote a number of poems about our mother. The one we tend to think of most is “Some Integers/Better By Half” which he wrote for her on her 50th birthday. I know that poem has been read at a number of weddings. My Uncle John read it earlier today.

The poem he wrote for her that I like much better is one that is far more obscure. In fact, it was a poem I hadn’t really thought much about until my brother pulled it out to read to my father on his death bed:   It is called “Midnight, midwatch.”

The poem describes waking in the middle of the night — but not tomorrow, midnight, day gone past itself – and he thinks back to days on the bridge of a destroyer keeping watch during WWII.

Emma mentioned that he refers to the “icebox humming.”  You can just hear my mother complaining about this: “Stan!” she said. “Nobody uses that word any more. Besides, an ice box wouldn’t hum.”

My father did say that a poem wasn’t done until my mother had approved of it. But, in this case, he liked “icebox” better than refrigerator. So he stuck with it.

There is a moment of uncertainty: Are you with me when the log turns?

The feeling of separateness:  The hours of your sleep are closed to me.

Then:  Time like a ship motionless between shores.

And now the kicker, and the lines written for our mother, written for us all we gather here today at the First Congregational Church in her memory, with love and affection for all she gave us –for that wife, mother, daughter, sister, aunt, friend, neighbor and cousin; for that vibrant, wonderful, beautiful, smart, optimistic, opinionated, and happy person: Always that image:  water at the keel those midnights went unseen. The premise of our crossing is your breath to keep me up.

* * * * *

My mother was not afraid of death.

Many years ago, she and my father took a group of us to the plot of earth at Wildwood cemetery to show us where they would be buried. It is a beautiful spot on the slope of a hill, just a couple of feet from where the grass meets the woods.   It is also just a couple of feet from the gravesites for Tom and Nonnie Moore. Her children find this very comforting to think about.

My mother brushed aside some leaves. She lay down on her back. She folded her hands over her chest. She closed her eyes.

Yes, she said finally. Your father and I will be very happy here.

* * * * *

From all five of her children, thank you for coming today.

–For Gene M. Koehler, February 15, 1925 – May 29, 2015

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