No sparkle to plaintiff’s diamond-swap claim, says dissent

A split 6th Circuit panel has ruled that a Michigan woman can get to a jury on her pro se claim that when a jewelery store resized her wedding ring, the store pulled a switcheroo by replacing the ring’s big, expensive pink diamond with a considerably smaller, shinier, colorless stone.

Judge Richard Griffin, joined by visiting Judge Judith M. Barzilay, said that Victoria Harris’ deposition testimony, and affidavits of three witnesses were admissible evidence to support the claim. The majority overruled the federal district court’s conclusion that Harris needed an expert’s opinion to bolster her case.

Dissenting Judge Ralph B. Guy thinks Harris’ case lacks luster.

Guy said that even assuming Harris’ evidence is admissible, a rational jury could not find in her favor.

In Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the Supreme Court stated that on appellate review a summary judgment should be upheld “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” This is the quintessential example of such a case.

Although in my view plaintiff’s pro se claims are nothing short of preposterous, that is not the test. A “judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [plaintiff] on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Guy noted that in Harris’ initial complaint to the store, and to the police, nothing was said about the original diamond’s color. More than two years later, Harris amended the police report to say that the original stone was pink.

And then there’s the allegations in the suit’s complaint. Guy was skeptical:

Although some leeway is given to pro se pleadings, the rambling lengthy narrative filed by plaintiff is long on emotion but short on plausibility. The allegation that a large national jeweler would have sold her a rare, pink 2.35 carat diamond for $395, which the complaint says is now worth something between $440,000 and $800,000 per carat, sets a tone for the complaint which makes what follows largely irrelevant.

Guy continued:

To begin with, and certainly very damaging to plaintiff’s claims, is that her husband, who purchased the ring and saw it regularly for 29 years states that it looks like the same ring he originally purchased.

Second, the ring itself belies plaintiff’s claim. In her complaint she states; “I read the inscription [in the ring] many times 235 (carat # – her insertion) 14k (gold – her insertion) ‘Starfire’ the name of my pink diamond.”

Unfortunately for plaintiff the ring inscription is 235 — not 2.35 — and “Starfire” is descriptive of a diamond that “sparkled” and “glittered,” exactly the characteristics that plaintiff says her original diamond did not have.

More importantly, however, defendant’s expert, Martin Fuller, who examined plaintiff’s ring, provides the full and unrefuted provenance of the ring in question.”

Among Fuller’s findings:

  • the diamond currently in Harris’ ring was cut manually, the standard process used in the 1970s when the ring was purchased
  • diamonds are now cut by computer-driven machines and the diamond alleged substituted in the ring was not produced by the modern procedure
  • the prongs on Harris’ ring could not have accommodated a 2.35 carat diamond
  • the original diamond could not have been replaced without damaging other parts of the ring
  • the “235” inscription is a style number

There’s more, said Guy. The affidavits of two of plaintiff’s witnesses, who swore that the original diamond was pink, are based on an alleged photograph of the ring, not the ring itself.

The third affiant was Harris’ bridesmaid, Easley. “What is significant about the Easley affidavit,” said Guy, “is what it does not say — particularly that she has seen the ring plaintiff now has and knows it is not the ring she had at her wedding.”

To top it all off, Harris apparently consulted with an expert of her own, decided not to use him, and later attempted to disqualify him.

Guy said that after considering what plaintiff and her witnesses claim, and the jewelery store’s expert testimony, the case should not go to a jury:

If a plaintiff’s complaint and a supporting witness’s affidavit state that the moon is made of green cheese and an affidavit by Neil Armstrong says that it is not, there has not been a fact question created that would make it error to grant a summary judgment.

The case is Harris v. J.B. Robinson Jewelers.

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New Detroit crime lab proposed

There’s a general consensus that a new state-run crime lab in Detroit is needed to help the state’s other labs that were swamped with cases when the infamously inadequate Detroit police crime lab closed in 2008.

Now, a proposal to create a new lab, possibly in space shared with the city of Detroit, is being given serious consideration, according to a Senate Fiscal Agency report.

The SFA report says state funding for seven existing state police labs dealing with the extra cases is up 60 percent, to $34.5 million, in the last two years. But the case backlog continues to rise. And it’s an enormous problem.

[T]he overall caseload backlog actually has increased from 5,147 in 2007 to the current level of 12,300. Plus this figure does not include 10,500 rape evidence kits never analyzed by the Detroit Lab and the subject of a sample analysis and subsequent study by Michigan State University.

The report says existing labs can’t be expanded to house more personnel and equipment. The solution:

a new State-run lab, large enough and with enough personnel and equipment to handle area caseloads, should be created within the City of Detroit.

Current fiscal constraints on State and local finances make this a difficult goal to achieve. … [T]he most likely option is the recent action by the Detroit City Council approving the purchase and renovation of the 400,000 square-foot former MGM Grand Detroit casino building for use as the new headquarters for the Detroit Police and Fire Departments.

The proposal calls for the building also to be used to house a State crime lab run by the Michigan State Police.

The state and the city are engaged in “ongoing” negotiations to hash out the details.

In their opinions

“To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.”

– Michigan Court of Appeals Judge Christopher M. Murray, concurring in the unpublished per curiam decision of McMillan v. Davis.

John McMillan fell down the basement stairs of property he rented from Dwayne L. Davis. At the resulting trial, just about everything except the medical bills was an issue.

There was a dispute about the origin and extent of McMillan’s shoulder problems. The evidence suggested a prior shoulder injury unrelated to the fall.

McMillan’s claimed wage loss was thrown into question when he testified about his hourly rate and hours worked. He fell in May 2006 but did not file a 2006 tax return because he had no income. A medical leave request to his employer indicated he was able to work.

A hospital record from before the fall indicated that McMillan wanted to relocate to Tennessee. Davis testified that McMillan told him the same thing. McMillan denied making the statement and said he left the state because he couldn’t find work after his accident.

McMillan testified that his shoulder hurt him constantly, especially during the winter and that he had difficulty sleeping on his shoulder because it ached.

The jury listened to all of this and came back with a verdict that equaled McMillan’s medical bills. No pain and suffering. No lost wages.

No way, said McMillan, who moved for JNOV or a new trial on the theory that if there were medical bills, there must have been pain and suffering to go along with them. The verdict is inconsistent, he said.

Not so, said the Court of Appeals. In the lead opinion, Judge Patrick M. Meter, citing Kelly v Builders Square, Inc., 465 Mich. 29 (2001), explained that

the jury may have concluded that [McMillan’s] “subjective experience[ ]” was insufficient “to prove pain and suffering,” … or may have found that his testimony on the issue lacked credibility.

Well, what about those lost wages? That’s also a matter of credibility, said Meter.

As with the prior assertion of error … the jury could have discredited plaintiff’s testimony on the issue of wage loss and concluded that, in light of countervailing evidence, he had not adequately established an evidentiary basis for such an award.

Something was going on the jury room, McMillan insisted.

McMillan provided two affidavits from one of his trial-court attorneys. From Murray’s concurring opinion:

The first affidavit indicates that the affiant and defense counsel spoke to three members of the jury and, in response to a question about why non-economic damages were not awarded to the plaintiff, the three jurors stated something to the effect that they did not believe any party or any of the witnesses. Based on this, the affiant concluded that “the jurors were clearly biased against both parties and all witnesses in this case and showed definite animus.”

That affidavit was followed by an affidavit from co-counsel for plaintiff, who simply stated that, to the best of his recollection, all of the impaneled jurors were white, and that all but one of the witnesses and parties were black.

So let’s get to the punchline, said Murray.

[W]hat is presented is an argument that because a black plaintiff did not get all the damages he requested at trial from an all-white jury, the jury must have acted with racial animus.

However, an argument premised upon post-verdict conversations with several jurors about their thought processes is precluded by the law … while this specific and unsubstantiated argument can only detract from the public’s respect for our bedrock system of trial by jury … .

There is no argument made, and therefore no evidence presented, to suggest that the jurors acted in any manner other than how they were instructed to decide this case by the trial court. And, as noted by the majority opinion, the law squarely rejects the other arguments plaintiff has made in an attempt to overturn the verdict.

To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.

Judge Jane M. Beckering concurred in the result. The case, she said, was a “hotly contested” credibility contest from start to finish.

While the jury ultimately found that defendant’s negligence proximately caused plaintiff damages, there was much dispute over both the origin and extent of plaintiff’s shoulder problems … .

Paying due deference to the jury’s role in assessing credibility and weighing the evidence with respect to plaintiff’s pain and suffering associated with the fall at issue … I cannot find that the trial court abused its discretion in denying a new trial under the particular facts of this case.

A matter of chance?

The man who wins the lottery once is envied; the one who wins it twice is investigated.

It is not every day that one’s wife is murdered; it is more uncommon still that the murder occurs after the wife says she wants a divorce; and more unusual still that the jilted husband collects on a life insurance policy with a double-indemnity provision.

That the same individual should later collect on exactly the same sort of policy after the grisly death of a business partner who owed him money raises eyebrows; the odds of the same individual reaping the benefits, within the space of three years, of two grisly murders of people he had reason to be hostile toward seem incredibly low, certainly low enough to support an inference that the windfalls were the product of design rather than the vagaries of chance.

This inference is purely objective, and has nothing to do with a subjective assessment of [the defendant’s] character.

– Michigan Supreme Court Justice Maura D. Corrigan, quoting United States v. York, 933 F.2d 1343 (7th Cir. 1991), in People v. Mardlin. Corrigan was illustrating an evidentiary principle called the doctrine of chances, sometimes know as the doctrine of objective improbability.

Fred Mardlin filed an insurance claim after fire damaged his home. After an investigation, the St. Clair County prosecutor filed an arson charge against Mardlin.

Mardlin was the only one home and left shortly before the fire started. Police and insurance investigators concluded the blaze was deliberately set and started in a piece of furniture. Mardlin was behind on his mortgage and utility bills. Mardlin produced an expert who said the fire started behind the furniture, lending credence to Mardlin’s theory that faulty wiring caused the fire. And, Marlin argued, the prosecutor never had anyone test the wiring.

According to Mardlin, this wasn’t arson, this was just bad luck.

The trial court let the prosecutor tell the jury just how unlucky Mardlin had been.

The prosecution … showed that defendant had been associated with four previous home or vehicle fires — each of which also involved insurance claims and arguably benefited defendant in some way—in the 12 years preceding the charged fire.

Specifically, defendant’s home caught fire in the spring of 2006, apparently as the result of a blanket being left on a kerosene heater. Defendant
filed an insurance claim for the resulting smoke damage.

In 2003, a van driven by defendant but owned by his employer caught fire. The prosecution argued that defendant had a motive to damage this van. The employer had recently transferred a newer van, previously issued to defendant, to another employee; it then issued the van that later caught fire, which was an older model, to defendant. After the older van burned, the employer was forced to replace it.

In 2001, defendant’s own van caught fire and the fire spread to his mobile home. Defendant received an insurance payment for that van.

Finally, in 1994, defendant’s truck caught fire, for which he submitted an insurance claim. Although none of these fires was established to have resulted from arson, the prosecution argued that the pattern was probative to rebut defendant’s claim that he had not intentionally set the November 2006 fire.

But it’s not as it seems, said Mardlin.

[H]e claimed that the fire involving his employer’s van also destroyed defendant’s personally owned work tools.

He also established that, although he turned on the kerosene heater involved in the spring 2006 house fire, his housemate admitted leaving the fire-causing blanket on the heater.

He stressed that the 2001 fire involving his insured van spread to his mobile home, which was not insured.

Further, he presented evidence that, after the 1994 fire that damaged his truck, he nonetheless was required to keep making payments on the damaged truck despite obtaining the insurance proceeds.

The jury took all of this in and convicted Mardlin of arson and burning insured property.

The jury never should have heard any of this, Mardlin argued on appeal. That’s right, the Court of Appeals ruled. The prior fires were not similar to the one resulting in Mardlin’s arson charge.

But they don’t need to be, Corrigan explained in her majority opinion, joined by Justices Elizabeth A. Weaver, Robert P. Young Jr. and Stephen J. Markman.

The doctrine of chances — also known as the “doctrine of objective improbability” — is a “theory of logical relevance [that] does not depend on a character inference.”

Under this theory, as the number of incidents of an out-of-the-ordinary event increases in relation to a particular defendant, the objective probability increases that the charged act and/or the prior occurrences were not the result of natural causes. The doctrine is commonly discussed in cases addressing MRE 404(b) because the doctrine describes a logical link, based on objective probabilities, between evidence of past acts or incidents that may be connected with a defendant and proper, noncharacter inferences that may be drawn from these events on the basis of their frequency.

If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the absence of mistake or accident because it is objectively improbable that such events occur so often in relation to the same person due to mere happenstance.

Mardlin’s innocent explanations regarding the circumstances of the previous fires doesn’t make that evidence inadmissible, Corrigan said, they actually bolster the argument for admissibility:

Indeed, defendant’s insistence — echoed by the Court of Appeals and the dissent — that there was no proof he intentionally caused the past fires actually weighs in favor of admission because, absent proof of past criminal intent associated with the evidence, the evidence does not create the traditional intermediate inference about character or criminal propensities associated with established, past criminal acts or convictions.

In her dissent, Chief Justice Marilyn Kelly, joined by Justices Michael F. Cavanagh and Diane M. Hathaway, said the past-fire evidence “was impermissible character evidence.” She questioned the evidence’s relevancy, arguing that the past fires were too dissimilar to the charged offense.

To allow prior acts evidence under the doctrine of chances whenever someone has the misfortune of being connected to an event of “the same general category” eviscerates the concept that “in our system of jurisprudence we try cases, rather than persons.”

Furthermore … using unlikely coincidence to prove actus reus “requires a more rigorous enforcement of relevancy because it more closely approaches the forbidden inference of character to conduct.”

In their opinions

Sometimes the prosecution should be careful what it asks for.

– Judge Raymond M. Kethledge of the 6th U.S. Circuit Court of Appeals, explaining in United States v. Jenkins, that the government’s successful effort to “pile on” evidence during a drug-and-gun trial loused up an otherwise perfectly good conviction.

There was no doubt that the police had raided a dope house. There was evidence that Jenkins had something to do with it.

The officers found drugs and guns in virtually every room of the house, most of which lay in plain view on tables or bookshelves.

In the house’s only bedroom, officers found Jenkins’ drivers license, pay stubs, bank cards, work-ID badge, numerous bags of marijuana — including one on a nightstand next to his drivers license — digital scales, and a loaded .38 caliber pistol.

All told, the officers seized 22.4 grams of crack cocaine, 374.4 grams of powder cocaine, 1.9 kilograms of marijuana, several sets of scales, baggies, and other drug paraphernalia, body armor, over $13,000 in cash, three pistols, a rifle, and two shotguns. Many of the weapons were loaded.

The main issue at trial was whether Jenkins, or someone else, constructively possessed the drugs and weapons.

The jury convicted Jenkins of three drug charges and two weapons offenses.

But there was a snag on appeal.

According to Kethledge, joined by Judges Richard Allen Griffin and James G. Carr, there was ‘ample evidence’ to convict Jenkins.

In what can be fairly described as piling on, however, the government sought to admit — and eventually did admit, over Jenkins’ objection — testimony that he had been convicted of an unrelated drug offense some eight years earlier.

What the government thought would be frosting on the cake instead became Jenkins’ ticket for a new trial.

Kethledge side-stepped the issue of whether, under FRE 404(b), the prior conviction was probative of whether Jenkins intended to possess the drugs.

Our precedents are hard to reconcile on this point. Compare, e.g., [United States v. Johnson, 27 F.3d 1186 (6th Cir. 1994)] (“where the crime charged is one requiring specific intent, the prosecutor may use 404(b) evidence to prove that the defendant acted with the specific intent”) with United States v. Bell, 516 F.3d 432, 444 (6th Cir. 2008) (“to be probative of a defendant’s present intent to possess and distribute, his prior convictions for drug distribution must be related in some way to the present crime for which the defendant is on trial”).

But that reconciliation is one we need not effect today.

The government’s much larger problem was the lopsided balance of probative value and prejudicial effect.

Even if we assume for purposes of argument that evidence of Jenkins’ prior conviction had some probative value, that value is microscopic at best.

And that value becomes invisible to the naked eye when the evidence is thrown in with the rest of the evidence in the case. …

Even the government argues — in suggesting that any error in the admission of the prior-conviction evidence was harmless — that its “other evidence of knowledge and intent to distribute in this case was overwhelming.” …

That amounts to a concession that the admission of this evidence, for this purpose, was merely piling on.

And now, the government had a monkey on its back.

[M]eanwhile there looms, Kong-like, the prejudicial effect of the prior conviction. … Even when properly instructed to consider the evidence only for some legitimate purpose — as the jury was instructed here — the danger is obvious that the jury will treat it as propensity evidence instead.
Under the facts presented here, we are firmly convinced that the prejudicial effect of Jenkins’ prior conviction substantially outweighed its probative value. The admission of that evidence was error.

But was the error harmless?

The government says it was, because the other evidence of “knowledge and intent” was overwhelming.

But the charged offenses had an additional element — namely, possession. That element was indeed the battleground at trial. And the government’s evidence on that issue, though solid, was not overwhelming; this was, after all, a case of only constructive possession.

We cannot say with “fair assurance” that the admission of testimony concerning Jenkins’ 1998 arrest and conviction did not “substantially sway[ ]” the result at trial. … The error therefore was not harmless.

Judge asked to bar drunken driver’s statements

“A Roseville police investigator testified Wednesday that Frances Dingle not only seemed lucid, but she read her rights aloud before recounting what she remembered from when she drove drunk and slammed her van into a car on Gratiot in Roseville — killing four teens,” reports The Detroit Free Press.

“But Dingle’s lawyer said any statements she made about the March 16 accident should never reach jurors’ ears because police didn’t know if she was truly coherent when she gave the interview.

“A Macomb County Circuit Court judge is to hear more testimony and make a decision about the admissibility of the statements at trial when the hearing continues Oct. 29.”

More trouble brewing in Detroit with evidence processing?

The Detroit Free Press reports that Wayne County Prosecutor Kym Worthy wants an outside probe of why thousands of “rape kits” that could contain evidence of sexual assaults were found stacked up in a Detroit Police Department evidence storage facility. From The Freep:

In a Sept. 8 letter to Police Chief Warren Evans, Worthy said there may be more than 10,000 so-called rape kits and hundreds of other pieces of evidence warehoused, unanalyzed, in a police “overflow property room.” The situation raises fears that cases could be affected if the evidence is challenged in court, Worthy said.

Police spokesman John Roach said Monday that Evans has an internal investigation under way, and that so far, police have found no mishandling of evidence and no cases that have been tainted. Roach also said the evidence is secure. …

The police crime lab was shut down a year ago because of an extraordinarily high error rate in firearms cases.

William Winters III, president of the Wayne County Criminal Defense Bar Association, said it may be time for federal authorities to look into the lab and the handling of evidence.