Saturday, July 10, 2010

Repugnant Verdicts

Juries are permitted to deliver stupid verdicts. They can believe the wrong people, accept the ridiculous while rejecting the obviously true. They cannot, however, square a circle.

So some verdicts will arguably be repugnant. A verdict is repugnant when it is logically inconsistent, not when it's factually stupid. In other words, a combination of convictions and acquittals will be legally unacceptable when, no matter what evidence the jury might have accepted or rejected, this combination is impossible to reconcile with itself. A verdict is repugnant if an acquittal on one charge conclusively negates a necessary element of a crime for which the defendant was convicted (People v Tucker, 55 NY2d 1 [1981]). A verdict is also repugnant/inconsistent if the defendant is convicted of two counts which effectively find differing mental states as to the same act (People v Gallagher, 69 NY2d 525 [1987] [the same murder cannot be both intentional and depraved]).

Few verdicts are actually repugnant. If the jury could find a reasonable doubt as to the element of one crime, e.g assault, without necessarily finding a reasonable doubt as to another crime, e.g. robbery, then acquittal on the first is not repugnant even if there is a conviction on the second. It might be stupid, if the robbery allegations seem to be entirely dependent on and peripheral to the existence of the assault, but that is not the same as legally inconsistent. The jury can accept some and reject some of the same sentence, though I do not believe that it can accept a fact for one purpose and reject it for another. The evaluation is much like a rule against perpetuities problem. If you can imagine a combination of findings which permit the verdict, it's permissible.

A verdict which includes one ore more acquittals and is ruled to be repugnant will result in the jury reconsidering those acquittals. CPL 31.50(2) provides that if the
jury renders a verdict which is legally defective then the court “must explain the defect or error and must direct the jury to reconsider such verdict”. Therefore, dealing with repugnance is a two step process. One, is the verdict repugnant? Two, is your client better off if you keep your mouth shut? The best way to deal with a complex case is to consider, while the jury is out, what combination of verdicts might be repugnant, and whether you want to object. That way you're not scrambling to make the calculation in a rush. Failing that, request a brief delay in releasing the jury to consider your options.

This is why a claim that the verdict is repugnant must be raised before the jury is discharged to preserve the claim. The assumption is that defense counsel made a strategic choice not to raise repugnance, to avoid the remedy.

Finally, repugnance is not tested by referring to what the law actually requires, it is tested by referring to the law as it was given to this jury, even if the charge was erroneous (People v Green, 71 NY2d 1006 [1988]).

Saturday, July 3, 2010

People v Perkins - Court of Appeals - June 29

The defendant physically resisted appearing in a lineup. Police then took a photograph of his face, telling him it was necessary for a “prisoner movement slip”, and they did the same for the fillers. The complainant picked the defendant from this “lineup”, as he had done from a prior photo array. Because lineup identifications are admissible, and photo arrays are not, the prosecution argued that the defendant improperly denied them useful evidence, and therefore the second photo array was admitted at trial, even though a true lineup was successfully conducted five months later.

The Court of Appeals
said this was not an abuse of discretion. It is important to note that admissibility was on a theory that the defendant cannot benefit from “his own wrong”, not that photo arrays are admissible as a matter of discretion. Further, the length of time between the two lineups was important to the decision as well. Had the defendant co-operated a few weeks later, I do not believe that this 'photo lineup' would have been admissible. I think that this type of procedure is a cattle prod to co-operation, not an open door to photo arrays becoming admissible at trial.

People v King - Court of Appeals - June 29

County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion.

The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately stopped the friend both riders pulled over, since it was unclear who was being signalled. The dissenters admitted that the officer did not direct defendant “either to stay or leave”, and thus he remained until another officer arrived and noticed he was drunk.

Maybe I am missing something. Perhaps the dissenters focused on the word "stop" and concluded that pulling over the defendant was an acceptable collateral consequence to the legitimate stop, which is reasonable enough. However, it seems to me that if the police do not inform the second rider that he is free to leave, then his continued detention is coerced and therefore illegitimate. The dissenters analogy was to a passenger in a car, who is detained when the driver is. This seems inapt. Passengers do not travel in their own vehicles, hence the name.

If an officer shouts "stop" at a pedestrian he is not free to detain everyone within earshot for as long as he likes so long as they stopped when he shouted. The only mistake the majority made, that I can see, was in failing to revise and extend their memorandum to beat the dissenters with blunt prose.