As Nevada residents, there are various things you have to learn to live with. Water restrictions, only having two seasons, and a sever severe lack of published case law due to the absence of an intermediate appellate court, to name a few. As for that last one, the opinions we do get are often sometimes unclear. This week's example came to us via email from a helpful tipster.
Both cases involved the same issue: Should prior bad acts be admitted as relevant to show a common plan or scheme. One case was against the husband, John Vernon Fields, and was decided en banc by the entire Court. The other case was against the wife, Linda Fields, and was decided by a 3 judge panel of Cherry, Saitta and Gibbons.
The bad acts in both cases were the same, the acts were committed by the couple. In the case against the wife, the three judge panel decided that the bad acts should not be admitted. In the case against the husband, the en banc court decided that the acts should be admitted. So we have conflicting decisions by the Supreme Court. Oh, and the fact that both cases are captioned "Fields v. State" should make for some confusing criminal briefs in the future.
But here's the interesting part: Judges Cherry and Saitta dissented from the en banc decision because they believed the bad acts should not be admitted, which conformed to their decision in the wife's case. Judge Gibbons, however, did not dissent and agreed with the majority that the bad acts should be admitted ... which is contrary to his decision in the wife's case.
Any of you criminal-types or appellate mavens care to explain these seemingly conflicting decisions? What about Gibbons apparent flip-flop? And, perhaps more importantly, what is the current state of the admissibility of bad acts to show a common plan or scheme in Nevada?
Any of you criminal-types or appellate mavens care to explain these seemingly conflicting decisions? What about Gibbons apparent flip-flop? And, perhaps more importantly, what is the current state of the admissibility of bad acts to show a common plan or scheme in Nevada?
(Thanks, Tipster!)
First paragraph: sever or severe?
ReplyDeleteI just skimmed both cases, so feel free to correct. In Fields v. State (1), the basis for admission in the wife's case appears to solely be common scheme or plan. Under Rosky v. State, and others, the common scheme has to be part of one continuos crime. The panel kicked it out mostly under the third Tinch prong (prejudice outweighs probative value). They do say it's not relevant in passing.
ReplyDeleteIn Fields II, the husband's case, the opinion says the judge specifically admitted the prior bad act under different exception to NRS 48.045--motive, intent, knowledge and identity. Given the commonality of the apparently false child molestation accusations and the link between the financial motive to kill one to pay off the other, the evidence is arguably relevant under the modus operandi exception, which qualifies under the identity exception to NRS 48.045 and the common scheme or plan exception--which more relies on a 'story of the crime' theory. A key to the different rulings may be the judge in the husband's case gave proper limiting instructions under Tavares. Hard to tell without knowing what limiting instructions the jury was given in the wife's case.
Long story short, who knows. If the state proceeded on the same admissibility theories in both cases and the judges gave the same instructions, there doesn't seem to be an adequate explanation. But if the jury was instructed on different specific theories of admissibility with different limiting instructions, then there could be a theoretical basis for the different results. The theory is that proper limiting instructions temper the possibility of undue prejudice under the third prong of Tinch. Either way, I'm sure the habeas lawyers will have a field day with this by arguing Nevada's arbitrary application of its own rules.
Here's an interesting topic never addressed by this blog - how the DA's office has a policy to overcharge every defendant. I know they claim that their job is to "preserve justice" and all that other self righteous bs, but it seems that they are hell bent on persecuting their way into heaven.
ReplyDelete10:01 is 100% on the money.
ReplyDeleteCherry and Saitta are the both exdtremely liberal, pro-crime justices. They dig as deep as needed to overturn any conviction, whatever the cost. Having them on the same panel is an assault on justice. No other explanation is needed.
ReplyDelete@10:01, if the DA overcharges, go to trial. Being charged with a crime because you’re have committed a crime is not persecution. If you don’t like the law, talk to the legislature. Sometimes, petit larceny DOES support facts constituting burglary. Sometimes domestic violence DOES support charges for coercion and kidnapping. I’ve seen judges in this town give probation to 3-time losers. The DA must prosecute zealously to balance the liberal bench. If you want criminals as neighbors, move to California. I prefer they stay in prison.
Cherry and Saitta are PRO CRIME justices? LOL, are you f*cking serious?? I'll admit they're pretty liberal but to suggest they are pro-crime is just a ridiculous comment.
ReplyDeleteThe root of the problem is the election of judges. If you want quality judicial opinions, you need to have quality judges first.
ReplyDelete@12:50-
ReplyDeleteAren't there constitutional amendments to create an appellate court and end judicial elections?
Actually, 11:18 and 10:01 make points that are, I believe, complementary in many respects.
ReplyDeleteBurglary in Nevada merely requires an entry, which means it can be attached to lots of larcenies and other incidents of malfeasance.
word verification "dicahedi"
that's gold, jerry, gold.
My point wasn't that a criminal deserves to be punished to the fullest extent of the law, but attaching a BS felony charge to a misdemeanor complaint isn't serving justice...it's just a waste of time. (It's also a waste of county money for the house of a detained criminal.)
ReplyDeleteWith David Rogers' administration, there is a clear policy shift from doing justice to overcharging. This is why he forced out most of the senior DAs when he took over, because none of them agreed with his politication of the DA office.
Isn't adding all possible provable charges prosecuting to the fullest extent of the law? I don't see how "overcharging" is a problem. If the "added" charge can't be proven then the Defendant won't be found guilty of that and there aren't any consequences. If the added charge can be proven then it technically isn't "added."
ReplyDelete"Pro Crime" Jutices? What a load! You would think that a trained lawyer could think of a better rhetorical phrase. the state of our profession is certainly declining.
ReplyDelete11:18 "liberal bench"? That's just stupid.
ReplyDelete"If the "added" charge can't be proven then the Defendant won't be found guilty of that and there aren't any consequences."
ReplyDeleteI think you vastly overestimate public juries. Besides, should a defendant have to worry about the crap shoot of a jury verdict when the charge "can't be proven?" There is ALWAYS the chance it can swing the wrong way. A defendant does not have the burden.
@3:01
ReplyDeleteyou're equivocating an indictment of the jury system with "overcharging" criminal defendants. Plus, if a defendant is really are afraid of a jury verdict, waive the jury and take a bench trial.
-1:52
The real point of adding the felony charges is to increase the bail amount and push a simple misdemeanor into the felony category. It's good for the defense bar, but still a waste of time when the DA's office ultimately agrees to drop the felony charge for a guilty plea on the misdemeanor. Is that justice?
ReplyDeleteJustice is the fair and proper administration of the law, therefore if the "added" felony fits the crime and is applied then that is justice. You're really asking whether the practice of adding another felony is fair. You should have learned in law school that "justice" and "fair" aren't always the same thing. If you think the law that is being applied isn't a good one, then that's another question for the legislature to deal with.
ReplyDeleteIt's also worth noting that no one has yet to say that the DA is adding felonies that aren't applicable. If that were to be alleged, then you might be correct by saying that isn't "justice."
5:31--on a related note, I just saw some angels dancing on the head of a pin.
ReplyDeleteLiberal rules are all fine and dandy - until one of the fine gents is raping your wife, stealing your beer or, in a moment of sheer evil, running off with your widescreen.
ReplyDeleteI confess to being blinded by the nature of the crime. If it's a pimp, every possible shade of rules of evidence and strict rules of construction should be applied to minimize chances of conviction; if it's a guy who stole my widescreen, no rule of evidence or anything else, for that matter, should stand between him and the gallows.
@414
ReplyDelete"push a simple misdemeanor into the felony category"
"DA's office ultimately agrees to drop the felony charge for a guilty plea on the misdemeanor. Is that justice?"
**So long as it gets my cases the F out of Muni court I am happy with the overcharging. I would happily battle Abbatangelo in JC, then Smith in DCt to avoid 5 minutes with Kolkoski, Leung or Assad.
Hastings is excluded from that list, of course.
Good call. Assad is a maniac.
ReplyDeleteNo speaka criminal law... Aren't all criminal defense attorneys shady, hang out at strip club, wanna be mob guys anyway?
ReplyDelete6:57, total fail.
ReplyDeleteWill you please do a post on appropriate holiday gifts for staff members?
ReplyDeleteGood point 8:23 PM
ReplyDeleteI really dislike my secretary - but I'm too big of a softy to not get her anything. Anyway, whatever gift I end up giving will be given more out of obligation than desire to be nice.
I second 8:23
ReplyDeleteI can see giving my secretary a gift, but it will probably piss off the other attorneys in my office who are not planning on giving gifts (kinda a lock-step thing).
What would be appropriate to give (perhaps a gift card)?
8:44 AM - put them all to shame. If no one is giving anything to anyone, you need get the biggest, most visible gift possible. A tower of treats, with balloons and a $300 Target gift card. (Target, not Victoria's Secret. Got it?)
ReplyDelete