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.”

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Woman wouldn’t remove veil in court, evidence rule amendment considered

Ginnah Muhammad is a practicing Muslim who wears a hijab, a head scarf and veil that covers her entire head except for her eyes.

Her refusal to remove it to testify at her small-claims case against a car rental company has prompted the Michigan Supreme Court to consider a proposed amendment of MRE 611.

Muhammad rented a car from Enterprise Leasing. Enterprise charged her for damage to the car. Muhammad responded by filing a small-claims suit to get her money back.

Thirty-First District Court Judge Paul J. Paruk, sitting as the small-claims court, told Muhammad she had to remove the veil before she could testify. The judge said he needed to see her face so that he could better assess her credibility.

Muhammad balked. She told Paruk she would remove the veil only for a female judge.

Paruk dismissed her case without prejudice.

Enterprise, in the meantime, filed a small-claims suit against Muhammad. She removed it to the 31st District Court. This set up another confrontation with Paruk, who is that court’s only judge. Muhammad asked Paruk to recuse himself from the case. Paruk denied the request and awarded Enterprise $2,083 in damages. Muhammad’s appeal is pending in Wayne County Circuit Court.

But it’s not just about the two grand. Muhammad sued Paruk in federal district court. She alleged that Paruk’s insistence that she remove her veil violated her First Amendment right to free exercise of religion and denied her access to the court system. See, Muhammad v. Paruk, 553 F. Supp. 2d 893 (E.D. Mich. 2008).

U.S. District Court Judge John Feikins declined to exercise jurisdiction over the case. But in doing so, he noted that under Employment Division v. Smith, 494 U.S. 872 (1990), “the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”

Feikins then explained why he wouldn’t hear the case:

[I]f Paruk has a valid, neutral and generally applicable policy of requiring witnesses to keep their faces visible while giving testimony, that policy would not violate Muhammad’s right to free exercise of her religion. Determining if Paruk has such a policy and, if he does, deciding whether it is valid, neutral and generally applicable would necessitate a detailed examination of how Paruk manages his court room as a state court judge. Conducting this type of review as a federal judge would undoubtably increase friction in the relationship between our state and federal courts. I find, therefore, that respect for the relationship between our state and federal courts weighs heavily against exercising jurisdiction over Muhammad’s declaratory judgment action for violation of her right to free exercise of her religion.

The proposed amendment of MRE 611 would give Michigan judges the framework to create the neutral policy Feikins mentioned:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

A staff comment to the proposed amendment explains:

This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.

The court is accepting comments on the proposed amendment through April 1, 2009. Send them by e-mail to MSC_clerk@courts.mi.gov or by regular mail to Box 30052, Lansing, MI, 48909.