Courts and legislatures have long debated the value of a reporter's privilege, with most states and federal circuits recognizing at least some type of qualified privilege. But the well known documentary film producer, Ken Burns, has generated a new question about these privileges. Burns produced a documentary about the "Central Park Five," a group of men wrongly convicted of a brutal rape and assault that occurred in NY's Central Park. The wrongly accused men have been released and exonerated, but some of them are suing the city for their wrongful convictions.
To defend those lawsuits, the city is seeking access to unpublished interviews and unused film footage that Burns created while making his documentary. Burns claims that NY's journalism shield law protects the information, but the city says that Burns' work on the documentary was pure "advocacy" unprotected by a shield for traditional journalism.
Is there a distinction between advocacy and journalism? Does that matter for purposes of a reporter's shield law? The NY courts may have to decide.
One lived in Spokane, Washington (Larry Newkirk) and the other in Centennial, Colorado (Wayne Watson). Both maintained that after a history of eating considerable amounts of microwave popcorn containing the butter flavoring chemical diacetyl, they each developed the lung disease bronchiolitis obliterans. Mr. Newkirk alleged he ate four to six bags of microwave popcorn per day from 1998 and continuing into September 2007. He later revised this allegation to assert his consumption was between five to seven bags of microwave popcorn each day for approximately eleven years. Mr. Watson maintained he ate two to three bags of butter flavored microwave popcorn each day for approximately seven years. Apparently he later asserted this occurred over ten years.
Mr. Newkirk sued ConAgra Foods, Inc. ConAgra moved to exclude (under Daubert) Newkirk’s proposed expert testimony of Dr. Egilman (as well as other expert testimony), and moved for summary judgment. All motions were granted and the case was dismissed. The Ninth Circuit Court of Appeals affirmed the dismissal.
Mr. Watson sued Gilster-Mary Lee Corporation and King Soopers (supermarket) and was awarded a jury verdict of $7.2 million, 80 percent from Gilster-Mary and 20 percent from King Soopers.
Beginning in the year 2000, workers in microwave popcorn plants were found to have respiratory problems in greater numbers than those of the general population. A study conducted by Kathleen Kreiss, MD found that there was a “strong association” between exposure to diacetyl and decreased lung function. The number of bags popped by workers at factories was recorded to be as many as 100 bags per worker per shift. The Gilster-Mary Lee Corporation stopped using diacetyl in its butter flavoring in 2006-2007.
Mr. Newkirk began his consumption of microwave popcorn when he quit smoking in the late 1980’s or early 1990’s. He was a smoker for seven years. According to the Memorandum Opinion and Order issued by Judge Peterson, a conclusive diagnosis of bronchiolitis obliterans is only possible after a lung biopsy. Mr. Newkirk never had a lung biopsy. “After reading an article in 2007 about a popcorn consumer developing “popcorn lung,” Mr. Newkirk went to his family doctor to see whether he, too, might have a disease related to inhalation of butter flavoring fumes.” H then contacted Dr. David Egilman in Massachusetts in 2009, whose diagnosis of Newkirk was bronchiolitis obliterans. Other physicians who examined him did not diagnosis this disease. ConAgra discontinued the use of diacetyl in or around 2007. ConAgra moved to exclude the expert testimony of Dr. Egilman (and other experts). Some of Dr. Egilman’s opinions changed between his expert witness report and his deposition, for example he changed his diagnosis to bronchiolitis obliterans syndrome, which is different from bronchiolitis obliterans.
In the Ninth Circuit, plaintiffs in a toxic tort case must establish both general and specific causation. ConAgra conceded Dr. Egilman’s expert qualifications. Judge Peterson found that Dr. Egilman did not cite to any support for many of his statements, and that some of his foundational statements were not based upon sufficient facts or data. Dr. Egilman relied upon Dr. Cecile Rose’s work, but Judge Peterson ruled that his underlying methodology regarding her work was not reliable. He also did not reliably apply the principles and methodologies from other studies. Finally, Judge Peterson ruled that under Joiner, there was too great an analytical gap between the existing data from vapors in the occupational setting and consumers of microwave popcorn.
Judge Peterson determined that Mr. Newkirk’s proffered general causation expert Dr. Egilman, was inadmissible and Mr. Newkirk’s other specific causation experts (including Dr. Egilman) were also inadmissible. She dismissed all of Mr. Newkirk’s claims with prejudice. Mr. Newkirk appealed her dismissal to the Ninth Circuit Court of Appeals and it affirmed the rulings. In an odd development, Dr. Egilman also appealed Judge Peterson’s ruling. The Ninth Circuit recently dismissed his case, finding he lacked standing to bring the action.
Mr. Watson owned a carpet cleaning company from 1998 or 1999 to 2001 and used carpet cleaning chemicals. He did not regularly use respiratory safety equipment. He began having respiratory problems in 1998. In 2007, he was examined by Dr. Cecile Rose, who has worked as a consultant to the flavoring industry. She told Mr. Watson to stop eating microwave popcorn and in the Daubert hearing, Judge Walker D. Miller of the United States District Court for the District of Colorado found “his symptoms have apparently stabilized since then.” On July 18, 2007, Dr. Rose wrote to the Food and Drug Administration and other agencies “identifying Mr. Watson as perhaps the first case of a consumer developing lung disease from butter flavorings.” Judge Miller stated the following: “the Tenth Circuit has recognized that a medical expert does not always have to cite to published studies on general causation in order to establish causation and, under the right circumstances, a differential diagnosis (i.e., ruling out other possible causes of the condition) may reliably form the basis of an opinion that a particular item caused an injury.” He ruled that, with one exception, Dr. Egilman’s opinions on both general and specific causation, employed reliable methods and he denied the motion to strike his opinions. The jury found in Mr. Watson’s favor, reportedly relying heavily on Dr. Rose’s testimony.
Ninth Circuit Memorandum affirming Judge Peterson’s Order Excluding Evidence and Grant of Summary Judgment - http://www.ca9.uscourts.gov/datastore/memoranda/2011/06/17/10-35643.pdf
Ninth Circuit Court of Appeals Memorandum Order Dismissing Dr. David Egilman’s appeal of District Court Motion to Exclude Testimony and Grant of Summary Judgment (Newkirk v. Conagra Foods) - http://www.ca9.uscourts.gov/datastore/memoranda/2012/09/05/10-35667.pdf
http://www.courthousenews.com/2011/06/09/popcornopinion.pdf - contains Judge Rosanna Malouf Peterson, Chief District Judge, United States District Court for the Eastern District of Washington - Daubert and Summary Judgment Order.
Law.Com, Legal Blog Watch – Expert Witness in Unsuccessful “Popcorn Lung” Case files Appeal of his Own - http://legalblogwatch.typepad.com/legal_blog_watch/2010/08/expert-witness-in-unsuccessful-popcorn-lung-case-files-appeal-of-his-own.html
Courthouse News Service, Arguments in Popcorn Case Steam Up 9th Cir - http://www.courthousenews.com/2011/06/09/37246.htm
CBS News – Colorado Man Wayne Watson Wins $7 Million in “Popcorn Lung” Lawsuit, http://www.cbsnews.com/8301-504763_162-57516710-10391704/colorado-man-wayne-watson-wins-$7-million-in-popcorn-lung-lawsuit/
Senior Judge Walker D. Miller’s Order on Motion for Summary Judgment and Motions to Exclude Testimony - http://co.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110622_0003940.DCO.htm/qx
Chief Judge Wiley Y. Daniel’s Supplemental Daubert Order - http://docs.justia.com/cases/federal/district-courts/colorado/codce/1:2008cv00091/105667/721/
DNA may acquire a new use in police investigations. Scientists have identified 5 genes that are linked to facial structure, and they are investigating more of these genes. In the near future, police labs may be able to use these genes to generate "wanted" sketches that are superior to those created by eyewitnesses working with sketch artists--although the witnesses could add useful details such as hairstyle, facial hair, or eyeglasses.
Prosecution Due to Rest its Case Against Drew Peterson on Friday, August 24, 2012
Interesting happenings in the People of the State of Illinois v. Drew Peterson case in the past couple of days. See earlier posts below for the background of the case.
On August 22, 2012, Jeff Pachter testified for the Prosecution that Drew Peterson casually offered him $25,000 to find a hit man to take care of his third wife Kathleen Savio, who later either accidently drowned in a bathtub (according to the Defense) or was killed by Peterson (according to the Prosecution). He testified that the conversation took place in Peterson’s police cruiser (Peterson was a Bolingbrook, Illinois Police Sergeant at the time). According to Pachter, Peterson asked that he warn him before any “hit” so that he (Peterson) would be able to establish an alibi – possibly at an amusement park (where he said he would start a scuffle so as to cement his alibi).
Pachter is hardly a “squeaky clean” witness – he is a convicted sex offender, was indebted to the IRS for $35,000, and at the time of the conversation had approached Peterson for a loan of $1,000 to cover his gambling debts. Will County Judge Edward Burmila has ruled that Pachter’s testimony is admissible only to show motive (that he wanted Savio dead), but not as direct evidence that Peterson tried to have her killed.
The Prosecution also called Master Sergeant Bryan Falat of the Illinois State Police to testify about his view of the investigation into Savio’s death (which at the time was ruled accidental). He testified that his suspicions were raised right away and that he thought it could have been a homicide. On cross-examination, Falat indicated he did not list any of his suspicions in his police report at the time.
Undoubtedly the most interesting and compelling witness thus far has been the Reverend Neil Schori, who was Stacy Peterson’s pastor. Stacy was Drew Peterson’s fourth wife and has disappeared and is presumed dead by the authorities. Judge Burmila has ruled that there may be no mention to the jury of her disappearance.
According to Schori, he met with Stacy at a Starbucks, as was his custom – he did this as a precaution because he was meeting with a married woman. They met for two hours and she told him that one evening she and Drew went to sleep but she awoke to find him gone. She looked for him and called him at his telephone number but was unable to reach him. She stated that early the next morning she found him standing over the washing machine in their home (he was dressed completely in black) and she noticed he was washing women’s clothing that was not hers. Judge Burmila allowed testimony about what Stacy observed, but did not allow testimony about what Drew and she discussed, as he found this is protected by the Spousal Confidential Communication Privilege.
Thus far, the Judge has indicated he will not allow evidence of an “alibi folder” kept by Peterson and found three years after Savio’s death. Apparently, the folder has pristine unwrinkled cash receipts from the day she died. Will County State’s Attorney James Glasgow stated: “This is a man he’s got a cash receipt…there’s not a nick, not a fold, not a tear. I’ve never been able to do that and I’d like to challenge any man who could.” Apparently, Glasgow said the word “hell” when speaking about a cash receipt from the Shedd Aquarium kept by Peterson from that day – “who the hell would keep that?” When scolded by the Judge, he apologized. The Defense argued this evidence is irrelevant (I disagree) and the Judge ruled it inadmissible. He did however indicate he may revisit the ruling later.
A couple of odd things (if all of the above was not odd enough) – first, Defense attorney Joseph “The Shark” Lopez, on cross-examination of Schori, stated “you felt like that because you knew she was trying to seduce you.” This comment elicited gasps from the gallery and Judge Burmila admonished the spectators to be silent so as not to influence the jury. And an even stranger occurrence – Jeff Ruby, a Cincinnati restaurateur who has been attending the trial as a spectator mouthed the words “f%$# you” to Peterson during a break in the trial. He was escorted from the courtroom and was told that he may not return.
The Prosecution is expected to rest its case on Friday, August 24.
Coverage of the case:
News story on Rev. Neil Schori testimony (YouTube): http://www.youtube.com/watch?v=pKXKe2YhY2Y&feature=youtu.be
NBC Chicago Trial Blog: http://www.nbcchicago.com/news/local/drew-peterson-murder-trial-164360506.html
Story on Pachter and Schori testimony: http://www.examiner.com/article/drew-peterson-more-crucial-hearsay-testimony-prosecutors-to-rest-friday
Chicago Tribune information about “alibi folder” - http://www.chicagotribune.com/news/local/breaking/chi-drew-peterson-trial-updates-jury-hears-hit-man-testimony-20120823,0,7548924,print.story
The trial People of the State of Illinois v. Drew Peterson (#2009CF001048) is taking place in a Will County, Illinois courtroom. Peterson is on trial for murdering his 3rd wife Kathleen Savio. Her death was ruled accidental, until the disappearance of his 4th wife Stacy Peterson (who has never been found). Pathologists for the State then determined Savio’s cause of death was homicide.
For background information about the case:
In its opening statement the Prosecution mentioned a hit man. The Defense moved for a mistrial – the judge did not grant the mistrial, but indicated the prosecution could not use the hit man evidence: http://usnews.nbcnews.com/_news/2012/07/31/13050829-drew-peterson-trial-no-hit-man-testimony-allowed-judge-rules
The prosecution is not allowed to bring in the actual bathtub at trial -
On August 2, 2012 Judge Edward Burmila denied a third defense motion for a mistrial– this time because of a neighbor’s mention of a .38 caliber bullet found outside the neighbor’s home. The Judge determined there was no tie from the bullet to Peterson – and that the State Prosecutor had asked the question in a way to call for an answer mentioning inadmissible evidence. Though Judge Burmila denied the mistrial motion, he did instruct the jury to disregard the redirect examination of the neighbor completely. The following article has the actual instruction from the Judge -
Many pieces of evidence have already been determined inadmissible (see below entry for 12/5/2011) during extensive pretrial evidentiary hearings. For example, this story mentions a hole Peterson admitted he cut into the drywall of the home occupied by Kathleen Savio (the victim). The Judge disallowed the evidence because Peterson still co-owned the home. The Judge is also not allowing any evidence of a time when Peterson threw Savio to the ground and held her in a “police hold.” Apparently this altercation happened when Stacy Peterson (Drew Peterson’s 4th wife) was confronted by Savio.
CNN has a “3 minute” update to the case –
An interesting issue that could raise 403-type discussion for class is the bathtub photo of the victim -
The Will County Circuit Court is not releasing the documents in the case – they are filed under seal. However, some documents have been released by other sources:
This video barred from trial – the judge ruled it could be too prejudicial -
WILLIAMS v. ILLINOIS – Confrontation Clause Case - U.S. Supreme Court Decision, 567 U.S. ___ (2012)
On June 18, 2012, the U.S. Supreme Court issued quite a fractured decision on its most recent Confrontation Clause case. Four Justices decided there was no violation of the 6th Amendment Confrontation Clause for the following reasons:
1. The Cellmark DNA test report (lodged, but never offered in evidence), relied upon by the expert from the State of Illinois was not offered for the truth of the matter asserted and thus did not fit within the Crawford v. Washington, 541 U.S. 36 (2004) analysis and did not violate the 6th Amendment; and
2. Even if the Cellmark report had been introduced for its truth, it was “not prepared for the primary purpose of accusing a targeted individual” and thus did not violate the 6th Amendment.
Justice Thomas concurred in result only (and thus the Court determined there was no Confrontation Clause violation). Justice Thomas did not agree with either of the above rationales, but rather found the Cellmark report was not testimonial and thus the Crawford analysis was not triggered at all – he believed that the report “lack[ed] the solemnity of an affidavit or deposition, for it [was] neither a sworn nor a certified declaration of fact.”
Four Justices dissented and Justice Kagan wrote a lengthy dissenting opinion (joined by Justices Scalia, Ginsburg, and Sotomayor). Justice Kagan believed that under the Confrontation Clause precedents (most notably Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 564 U.S. ___ (2011)) this case was “an open-and-shut case.”
In February 2000 a young woman (L.J.) was abducted and raped in Chicago. She was treated at a hospital and the personnel took a vaginal swab from her for a sexual-assault kit. A Chicago detective collected the rape kit and turned it over the Illinois State Police (ISP). The ISP sent the vaginal swab to Germantown, Maryland to the Cellmark lab for testing. Cellmark sent back a report – see: http://www-personal.umich.edu/~rdfrdman/CellmarkRpt3.pdf signed by two Reviewers (Robin Cotton and Jennifer Reynolds) that contained a finding that the swab contained DNA from a male “donor.” At the time of the testing, there were no rape suspects in the case.
Sandy Williams (the defendant) was arrested on August 3, 2000 for an unrelated crime. His DNA was tested and the results were entered into the ISP database.
An ISP forensic specialist (Sandra Lambatos) conducted a computer search to see if the Cellmark DNA profile matched any profiles within the ISP database. The computer showed a match to Sandy Williams. On April 17, 2001 the victim, L.J. identified Williams in a lineup. He was charged with rape.
A bench trial began in April 2006. In court, L.J. identified Williams as her assailant. The State of Illinois never called any witness from Cellmark. It did not offer the Cellmark lab report into evidence. The following was the relevant testimony:
Q (State Prosecutor): Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from Sandy Williams?
A (Ms. Lambatos): Yes there was.
Q (State Prosecutor): Did you compare the semen…from the vaginal swabs of [L.J.] to the male DNA profile…from the blood of Sandy Williams?
A (Ms. Lambatos): Yes I did.
Q (State Prosecutor): [I]s the semen identified in the vaginal swabs of [L.J.] consistent with having originated from Sandy Williams?
A (Ms. Lambatos): Yes.
Defense counsel objected to Ms. Lambatos’s testimony for numerous reasons, but the issue before the Court was the Confrontation Clause objection. The Prosecution responded to the Defense objection by stating that there was no violation of the Confrontation Clause because the Defense had the opportunity to cross examine Ms. Lambatos and under Illinois Rule of Evidence 703 (as with Federal Rule of Evidence 703), an expert is allowed to rely on otherwise inadmissible evidence. The trial Court agreed and found Williams guilty. He appealed.
Both the Illinois Appellate Court and the Illinois Supreme Court affirmed his conviction and determined that the Cellmark report was not offered into evidence and the testimony about it was not offered for the truth of the matter asserted.
Justice Alito agreed with the Illinois Courts and found that the Cellmark report was never admitted into evidence but merely provided the basis for Lambatos’s opinion. He stated that Ms. Lambatos did not vouch for the Cellmark lab work but only testified that the Cellmark DNA profile matched the ISP DNA profile from Williams’ blood.
Oddly enough, the Alito analysis included the reasoning that this was a bench trial, not a jury trial and the trial Judge surely understood that the “portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter asserted.” As a back-up position, Judge Alito stated that even if the report were offered for the truth of the matter asserted, the Cellmark report “was not prepared for the primary purpose of accusing a targeted individual” because it was prepared before Williams was ever even a suspect and “no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate [the defendant] – or for that matter, anyone else whose DNA profile was in a law enforcement database.”
Justice Kagan began her dissent in an interesting way – with a reference to a State of California case (John Kocak) in which a Cellmark analyst, when undergoing cross examination, realized she had “made a mortifying error.” Justice Kagan went on to point out that “[f]ive Justices specifically reject every aspect of its (the Alito opinion) reasoning and every paragraph of its explication.” She indicated that the State of Illinois used Lambatos as a conduit for the Cellmark report and that in the future, states will “sneak” in the evidence through the back door. She specifically stated that “Lambatos’s testimony is functionally identical to the “surrogate testimony” that New Mexico proffered in Bullcoming, which did nothing to cure the problem identified in Melendez-Diaz.”
I believe the most compelling part of Justice Kagan’s dissent is her reference to the “missing link” – what the State of Illinois needed to show was a match between the semen DNA found on the swab and identified in the Cellmark report and the blood DNA taken from Williams and tested in the ISP lab. She indicated this case is actually worse factually than Bullcoming – at least in Bullcoming the testimony came from a fellow analyst at the same lab. Here the analysis came from a lab in Maryland (and there is no indication on the report who even performed the analysis – it is signed only by two Laboratory Director “Reviewers”).
The Sandusky jury began deliberations today. There are 48 remaining counts - http://www.cnn.com/2012/06/21/justice/pennsylvania-sandusky-charges/index.html
Thus far, the only things the jury has asked for are Mike McQueary’s testimony and Jonathan Dranov (a McQueary family friend)’s testimony. Dr. Dranov was called by the Defense as one of its last witnesses (in its lightning-quick presentation of its case). See: http://espn.go.com/college-football/story/_/id/8083261/penn-state-nittany-lions-jerry-sandusky-jury-rehear-two-testimonies
Interestingly, even if Dranov is correct and McQueary did not mention anything about having the boy up against the wall – even by what Dranov said there is still a sexual assault. But, the type of assault depends upon who they believe. And of course that goes to the charges – the alleged victim in the shower was Victim #2. There is a charge of both intercourse and sexual assault for Victim #2.
Is Dranov's testimony hearsay? Based upon the reported testimony, it seems Dranov’s testimony about what Mike McQueary said is either not hearsay – because not offered for the truth of the matter asserted – but rather as impeachment of McQueary; or it may qualify as an excited utterance.
Four former leaders (Ghassan Elashi, Shukri Abu Baker, Mufid Abdulqader, and Abdulrahman Odeh) of the Holy Land Foundation for Relief and Development (HLF) have filed a petition for a writ of certiorari with the Supreme Court and the two issues in the petition are quite interesting from an evidentiary point of view. The petition is available at: http://mlfa.org/sites/default/files/HLF-cert-petition.pdf.
Professor Ben Trachtenberg (University of Missouri) and eight other professors of Evidence submitted an Amici Brief on behalf of the Petitioners this week. The case is Elashi, et al. v. U.S., 664 F3d 467 (2011) and is the largest terrorism-financing case ever brought by the government. See: http://www.nytimes.com/2008/11/25/us/25charity.html. There are two issues on appeal and the Evidence professors (including Debby and me) filed the brief on behalf of the petitioners on one of the issues – whether the co-conspirator exception to the hearsay rule extends to out-of-court statements in furtherance of a lawful joint venture. Ben Trachtenberg of the University of Missouri is the author of the brief. The other professors who signed on and provided input were: Edward Cheng (Vanderbilt), Janet Hoeffel (Tulane), James Kainen (Fordham), Debby (The Ohio State University), Colin Miller (John Marshall, Chicago), Richard Moberly (Nebraska), me (Gonzaga) and Stephen Saltzburg (George Washington University).
A predecessor to HLF was formed in 1988 and the entity was renamed HLF in 1991. It was operating legally in the U.S. In 1995, then-President Clinton issued Executive Order 12947 that designated Hamas as a Specially Designated Terrorist (SDT). The Holy Land Foundation indicated it was “providing humanitarian assistance to needy Palestinians living in the Israeli-occupied territory of the West Bank and Gaza.” On December 3, 2001, the United States designated HLF as a SDT. The government charged that HLF’s “mission was to act as a fundraising arm for Hamas, also known as the Islamic Resistance Movement, and to assist Hamas’s social wing in support of Hamas’s goal to secure a Palestinian Islamic state in what is now Israel.”
The first trial in 2007 resulted in a mistrial, see: http://www.nytimes.com/2007/10/22/world/americas/22iht-22holy.8005339.html. After a retrial in 2008, the entity and five of its leaders were found guilty after seven days of jury deliberation, see: http://www.justice.gov/opa/pr/2008/November/08-nsd-1046.html. The individual defendants received sentences of between 15 and 65 years.
Documents that pre-dated Hamas’s and HLF’s designation as a SDT were introduced at trial pursuant to a legal joint venture theory of the co-conspirator provision of the hearsay rule (801(d)(2)(E)). Ben has previously written a law review article on “coventurers” in the Hastings Law Journal. In the brief, we argue the application of the co-conspirator provision to lawful joint ventures is against the original intent of the co-conspirator provision, not intended by the drafters of the Rules, and is against public policy.
The second issue is a Confrontation Clause issue. An Amicus brief in support of the Petitioners was filed yesterday by the National Association of Criminal Defense Lawyers (lead counsel is Jean-Jacques Cabou, of Perkins Coie). Two key government witnesses (one testifying as an expert) were allowed to testify under pseudonyms. One was “Avi” a legal advisor for the Israeli Security Agency and the other was “Major Lior” an officer with the Israeli Defense Forces. The District Court allowed the witnesses to testify under pseudonyms because “revealing their true names “would jeopardize national security and pose a danger to the safety of the witnesses and their families.”” Their identities were not known to the jury, the public, the defendants, nor defense attorneys. The NACDL cites to the new Williams case (Justice Kagan’s dissenting opinion).
It is a fascinating case with two very interesting evidentiary issues.
Judge John M. Cleland (Court of Common Pleas of Centre County, Pennsylvania, Criminal Division) ruled on June 15, 2012 that the Defense may present evidence of "Histrionic Personality Disorder" (HPD) in the Gerald (Jerry) Sandusky case (docket numbers #CP-14-CR-2421-2011 and # CP-14-CR-2422-2011). The Defense asked for a ruling in limine to rebut claims that letters Sandusky sent to alleged victims/witnesses exhibit Sandusky’s "grooming behavior" towards the alleged victims (who testified this week in the Prosecution's case in chief). See: http://media.pennlive.com/midstate_impact/other/sandusky%20motion.pdf. Sandusky has been charged with 52 counts of sexual abuse of ten boys over fifteen years.
An article on the Judge's ruling is available at: http://espn.go.com/college-football/story/_/id/8057360/judge-john-cleland-allow-expert-testify-psychiatric-condition-jerry-sandusky; and the Judge's Order is at: http://www.co.centre.pa.us/media/upload/SANDUSKY%20ORDER%20REGARDING%20DEFENDANTS%20MOTION%20IN%20LIMINE.pdf.
Selected documents in the Sandusky trial are available at: http://www.co.centre.pa.us/media/.
The condition HPD has been defined as by the Diagnostic and Statistical Manual of Mental Disorders in the following way:
A pervasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
• is uncomfortable in situations in which he or she is not the center of attention;
• interaction with others is often characterized by inappropriate sexually seductive or provocative behavior;
• displays rapidly shifting and shallow expression of emotions;
• consistently uses physical appearance to draw attention to self;
• has a style of speech that is excessively impressionistic and lacking in detail;
• shows self-dramatization, theatricality, and exaggerated expression of emotion;
• is suggestible, i.e., easily influenced by others or circumstances;
• considers relationships to be more intimate than they actually are.
Sandusky is expected to be evaluated (according to the Court Order, Sandusky “shall make himself available to the Commonwealth for the purpose of preparing rebuttal psychological/psychiatric testimony”) on Sunday, June 17, 2012. See: http://www.kctv5.com/story/18807417/prosecution-schedules-sandusky-psychological-exam.
The trial is not expected to be delayed due to the evaluation. The Prosecution has rested its case, and the Defense begins next week. See: http://www.bostonherald.com/news/national/northeast/view/20120615prosecution_rests_in_jerry_sandusky_trial/srvc=home&position=recent.
Interesting case – entering the second week of jury deliberation tomorrow (June 11, 2012) – is the Commonwealth of Pennsylvania v. William J. Lynn, Edward V. Avery, and James Brennan. The case is taking place in the Court of Common Pleas in Philadelphia County. It is a Catholic priest child sexual abuse case. It is an interesting case because Monsignor William Lynn is not accused of molestation or abuse. He is the highest ranking church official ever to be charged in a criminal case. He is charged with two counts of endangering children and two counts of conspiracy to cover up abuse (one count was recently dismissed by Judge M. Teresa Sarmina during the trial). Avery and Brennan are priests accused of abuse. Just before trial, the previously defrocked priest Avery pleaded guilty to rape and conspiracy.
A grand jury issued a report in 2005, but did not recommend charges at the time. Clearly the 2011 Grand Jury believed nothing was done in response to the earlier report, and recommended criminal charges, which were then brought. The report is not for the faint of heart. Pages 43 – 53 relate to Msgr. Lynn and the recommendations of criminal charges against him begin on p. 114.
2011 Second Grand Jury Report:
Lynn was the Secretary of the Clergy of the Archdiocese from 1992 to 2004 and he detailed in a report numerous instances of sexual abuse by priests. According to Lynn, he was ordered to shred the file by Cardinal Bevilacqua, who died in January 2012. This file documented 35 “credible” allegations of active priests in the Archdiocese who were charged or confirmed as child molesters. No file was presented to the government or the grand jury until 2006. A former attorney for the Archdiocese (Timothy R. Coyne) indicated he began looking for and asking for the file in 2002, but was told no one knew where it was. He told the jury “somebody lied to me, or everybody lied to me.”
Jurors – Secret file:
The Judge allowed mention at trial of many abuse allegations that were not charged, due to the statute of limitations. See Prior Bad Acts:
Lynn’s defense is basically throwing Cardinal Bevilacqua under the bus. Lynn testified and stated that he did all he was required to do – he documented the instances of abuse and reported them to his superior, the Cardinal. The Grand Jury “reluctantly” decided against criminal charges against Bevilacqua due to his declining health. Under cross examination Lynn admitted he never called the police or alerted authorities (with the exception of the Cardinal) of his findings. He continued to place accused priests in positions where they would be in contact with children and indicated that he had no power to stop doing so.
If convicted of all remaining charges, Lynn faces 10 1/2 to 21 years in prison.