D.C. Superior Court Opinions
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UNIFORM INTERSTATE DEPOSITIONS AND DISCOVERY ACT (UIDDA)
FOREIGN SUBPOENAS ON PERSONS WITHIN THE DISTRICT OF COLUMBIA / LOCAL RULE REQUIREMENTS DISTINGUISHED / MEDICAL RECORDS EXCEPTION
Précis: The Uniform Interstate Depositions and Discovery Act (UIDDA) became effective in the District of Columbia in May 2010. Its provisions differ on significant points with Superior Court Civil Rule 28-I(b) as to the procedures for issuance of “foreign subpoenas” from courts in other jurisdictions to compel discovery via the Superior Court on persons located within the District. The purpose of the UIDDA is to simplify those procedures by obviating certain formalities, including the use of local counsel and the approval of a Superior Court Judge, while the local rules require both. The statute governs over the rule and the latter is in the process of being amended. Meanwhile, the ruling in this case by the Presiding Judge of the Civil Division of the Superior Court waives the formal “commission and notice” requirement of the local rule as well as the approval of the Judge in Chambers of the Court. All attendant fees, however, remain in effect. Finally, the statutorily-protected doctor-patient privilege remains in full force, despite the UIDDA, and advance judicial approval is still required to obtain such testimony or records.
Abstract: Because of differences between the recently-enacted Uniform Interstate Depositions and Discovery Act (UIDDA) and the residual requirements of the pertinent Superior Court Rule for issuance of foreign subpoenas on persons within the District of Columbia, the Presiding Judge of the Civil Division of the Superior Court issued an order for a temporary procedure on that issue, pending reconciliation between the statute and rule by amendment of the latter. Facts: Counsel for the Plaintiff in this matter applied for five subpoenas to be issued in the District of Columbia emanating from a case filed in Prince George’s County, Maryland. Law: The UIDDA became effective in the District of Columbia on May 22, 2010. It provides in part relevant to this case that (1) a request for a subpoena upon a person in the District for a case pending in another jurisdiction (“foreign subpoena”) must be made by submitting the subpoena from the issuing court to the Clerk of the Superior Court, (2) an action which does not constitute a formal appearance before the Court, meaning that if the submitting lawyer is not a member of the D.C. Bar s/he need not acquire local counsel, (3) whereupon the Clerk shall promptly issue the foreign subpoena “in accordance with the Rules of the Superior Court,” (4) which subpoena shall incorporate the terms of the foreign subpoena, including the names, addresses, and phone numbers of all counsel of record in the case, as well as of any party not represented by counsel. With some significant contrast, however, Superior Civil Rule 28-1(b) covers this procedure independently, stating that (a) when a foreign subpoena is requested for a witness within the District, it must include a certified copy of the “commission or notice” from the requesting jurisdiction, (b) which shall be submitted to the Judge in Chambers for approval, (c) and only upon such approval shall the subpoena issue compelling the designated witness to appear for deposition at a specified time and place, (d) which deposition shall be taken under the governing rules of the Court, (e) unless an appropriate motion to quash or for a protective order intervenes. As can be seen, the rule requires a commission or notice from the requesting court and approval by a local Judge, neither of which is required by the statute. Because the procedures under the statute and the rule differ, the rule must be amended, a process which is under way. Rulings: The Court ruled on the issues presented as follows: (A) Purpose. The UIDDA is intended to expedite the issuance of foreign subpoenas, and reduce concomitant expenses, via an abbreviated “ministerial” procedure through the clerk of the court, by requiring that the only documents that need be submitted to the Superior Court are the subpoena issued by the foreign trial court and the “draft subpoena” of jurisdiction in which the discovery is sought, obviating both local counsel and any ruling of a Judge in the target court, and allowing the court clerk simply to “re-issue” the original subpoena. (B) Waivers. Because of the interregnum between the implementation of the UIDDA and the existing rule, the Court in this case sua sponte waived the rule requirements of the commission or notice and the approval of the Judge in Chambers, making that ruling as the Presiding Judge of the Civil Division instead. Because the requesting lawyer has not yet filed the local “draft subpoenas,” with the information required by the rule, however, he will be required to do so before the foreign subpoenas issue. In addition, payment of the standard fees for same will be required. (C) Medical Records Exception. The Court deemed it necessary to emphasize the exception for such subpoenas for medical records under the UIDDA. There is a statutorily-protected doctor-patient privilege in the District of Columbia which prevents certain medical professionals and counselors from disclosing without consent confidential information acquired in such a professional capacity that was necessary to enable the professional to act in that capacity. Inasmuch as the doctor-patient statute provides for some exceptions, the party seeking such records has the burden of making the additional showing required by the statute prior to issuance of the subpoena. Thus, unlike simple subpoenas to compel the testimony or for documents from lay witnesses, which do not require prior judicial approval under the UIDDA, any such subpoenas for medical records do require it under the D.C. privilege statute, and the showing of an applicable exception must be made in advance.
D.C. HUMAN RIGHTS ACT / D.C. WHISTLEBLOWER ACT
RETROACTIVITY OF AMENDED PROCEDURAL FILING PROVISIONS AND STATUTE OF LIMITATIONS
Précis: The statutory provision of D.C. Code § 12-309 requiring six months’ advance notice to the District of Columbia before filing suit does not apply to the D.C. Whistleblowers Act. That statute was amended, effective March 2010, extending the one-year statute of limitations for filing suit from one year to three years. While it is true that where amendments to a statute affect claims on the merits there is general presumption against the retroactive application, absent a specific provision in the new statute providing for same, that presumption does not apply to procedural changes. In that instance, the presumption is turned inside out and it is presumed that the intent of the legislature is to apply those changes retroactively to suits pending at the time of the changes, unless the statute says to the contrary. This is particularly apt where the amended provision does not attach new legal consequences to the events completed before its enactment.
Abstract: By a fortunate ruling on the retroactivity of post-filing amended procedural requirements in this local employment discrimination case, the Plaintiff was permitted to proceed – mostly. Facts: The Plaintiff in this case had been employed by the D.C. Department of Human Services (DHS) in its Office of Grants Management. In August 2001, he was reassigned to a position within DHS’s Youth Services Administration at its juvenile detention facility, located in Oak Hill, Maryland (which has since been closed). In November 2004, however, his employment at DHS was terminated altogether. Six months later, in May 2005, he filed a “notice of claim” letter with DHS, alleging that the termination was illegally based on his age, race, gender, national origin, or political affiliation and stating that he intended to pursue “any and all legal claims” thereunder. He filed suit in the instant case sometime later in 2005, based on the D.C. Human Rights Act (HRA). About 18 months later, in November 2006, he filed a second notice of claim with the HRA in which he added contentions that the transfer to Oak Hill and his subsequent termination were illegal acts of retaliation that violated the D.C. Whistleblower’s Act (WBA). His motion to amend his complaint in this suit to add those counts was granted in August 2007. This brought his suit to three claims: (1) the original claim for employment termination based on the HRA, (2) retaliation under the WBA, and (3) a claim for violation of “public policy” embodied in those statutes. In addition to the well-known existing requirement that notice must be provided to the District of Columbia of intent to sue (within six months of the event) pursuant to Section 12-309 of the code, at the time of these actions, the WBA’s procedural requirement set a limitations period within which to sue (one year from the event or knowledge of same). In January 2010, focusing on the WBA claims, the Government moved for summary judgment on the grounds that these counts were filed outside the statute of limitations in effect at the time of their filing. Meanwhile, however, the WBA was amended in March 2009, effective in March 2010, extending the one-year limitations period to three years. Each side argued for applicability of the limitations period that supported its version of the filing requirement, with the Plaintiff arguing for retroactivity and the Defendant arguing for the status quo ante. Rulings: The Court ruled on the issues presented as follows: (A) Section 12-309. The Court had no difficulty in ruling that this basic notice provision did not apply to suits under the WBA because that statute explicitly excludes lawsuits under that statute, thus obviating a notice requirement altogether. (B) Whistleblower Act. The Court’s ruling made two distinct applications to proceedings under this statute. (1) Substantive Claims. The Court acknowledged that, where claims on the merits are concerned, there is “general presumption against the retroactive application,” absent a specific provision in the new statute providing for same. (C) Procedural Matters. Where procedural matters are concerned, however, that presumption is turned inside out. Where the new law impacts only upon procedure, it is presumed that the intent of the legislature is to apply them retroactively to suits pending at the time of the changes, particularly where, as the Court found here, the new provision does not attach “new legal consequences to the events completed before its enactment.” Thus, unless a contrary legislative intent appears, “changes in statute law which pertain only to procedure are generally held to apply to pending cases,” the Court ruled. To do otherwise, it reasoned based on precedential authority, would result in one body of cases ongoing under one set of procedures and another proceeding on new provisions, the result of which, it concluded, “would lead to chaos” on court dockets. The Court therefore held that the procedural changes in the WBA amendments applied to this case. (D) Applicability. The Court then applied this ruling to the WPA claims, in terms of (a) the notice provision and (b) the limitations provision. (1) Notice. Ruling that “pre-filing notice statutes are procedural in nature,” the Court concluded that “changes in these statutes must be applied in lawsuits based on conduct that occurred prior to the enactment of the changes.” It was clear to the Court that the City Council “viewed the elimination of the notice claim requirement as a change in procedural law,” when it “specifically characterized the abolition of the § 12-309 requirement as the elimination of a ‘procedural barrier’” in WBA cases. Therefore, the 2009 amendment should apply to this case, affording no basis for the Defendant’s motion for summary judgment thereon. (2) Limitations Statute. Finding that the extended statute of limitations under the amendments did “not impinge on vested substantive rights” on the merits of the case, but only “constitute changes in procedure,” the Court held that the new three-year limitations period also applied to this case. The complaint here, having been filed within three years of eligibility, was thus salvaged it from being time-barred. (E) Other Claims. The Court’s ruling on the remaining “public policy” claims, however, was different. Noting that the alleged retaliation in the transfer to Oak Hill had occurred in 2001, three years before the Plaintiff was even terminated, the Court ruled that by any reasonable measure this claim was out of time. Thus, to the extent that any adverse actions were predicated on this aspect of the complaint, they were dismissed.
CORPORATE CAPACITY TO SUE / EX POST FACTO COMPLIANCE / PROPER DUE PROCESS NOTICE WHERE TITLE HOLDER IS DECEASED BUT ESTATE IS NOT YET CREATED / IN REM JURISDICTION / SUFFICIENCY OF SERVICE / POSTING / TAX SALE PROCEDURES / AFFIRMATIVE DEFENSE
Précis: A foreign corporation may not maintain any action at law or equity in any court of the District of Columbia until it has obtained a certificate of registration. A distinction is made between filing an action and maintaining an action, in that it is generally held that reinstatement of a repealed charter relates back to a filing. Thus, coming into compliance after an action has commenced is sufficient to enable the corporation to maintain the suit. All tax sales cases are in rem actions against the subject property itself, not in personam cases against particular individuals, although notice sufficient to satisfy statutory and due process requirements must still be given to those parties with an interest in the property which is reasonably calculated to apprise interested parties of the imminent prospect of their loss of valuable property rights. Such properties can only be conveyed pursuant to strict compliance with the tax sale statute and regulations, including adequate notice to the record title holder, while other parties may be designated as “all persons that have or claim to have any interest in the real property” at issue. Those parties can be identified by a search in accordance with generally accepted standards of title examination of the records of the Recorder of Deeds and in the probate filings of the Superior Court. Where such a search does not identify a property owner, s/he may be included as a defendant by the designation “Unknown owner of real property” and successors in right, title and interest. The pertinent statute provides that all property of a decedent, upon the decedent’s death, shall pass directly to the personal representative (PR), who shall hold the legal title for administration and distribution of the estate. The statute therefore constructively comprehends that a PR exists or will exist in an estate for tax sale. While there is nothing to prevent a plaintiff in such a involving a decedent title holder from filing an probate action, there is also nothing in the legal authority requiring that a purchaser do so. The statute does, however, require a purchaser to perform a diligent search in the probate records for any such interested parties. The statute also provides that (1) where a property owner, living or dead, is unknown s/he may be proceeded against as if she were living; and (2) where the proper party is known to be deceased, all unknown potential heirs and devisees may be initially notified by the usual method of publication, (3) after the court is satisfied that due diligence has been used to ascertain the unknown heirs. Those parties may then, if they wish, open an estate for the decedent. However, it is not the plaintiff’s burden to open an estate for a deceased party. Notices in such cases must be reasonably calculated to apprise interested parties of their imminent loss of valuable property rights. Under these circumstances, notice by publication alone would be insufficient for unknown heirs. A plaintiff must also performed due diligence to locate all the reasonably ascertainable heirs of the known decedent and add them as parties to the action, although it is not required that all defendants to a tax lien proceeding receive actual notice. In this regard, vicarious service made on a 16-year-old girl at her residence is sufficient under Rule 4(e)(2). Although the pertinent statute requires that a copy of a tax condemnation suit be posted on the property at issue, it only requires a posting of the original suit and does not require posting of any subsequent changed circumstances within the case itself. Thus it does not require that posting on a property occur more than once. In a tax sale suit, there is presumption of regularity. The plaintiff has no burden of proof and is not required to plead or prove the various steps for the assessment and imposition of the taxes for which the real property was sold. Rather, the validity of the procedure is conclusively presumed, unless a defendant, by answer, pleads any procedural defect as an affirmative defense.
Abstract. Confronted with a series of dull issues, the Trial Judge in this case wrote a methodical and comprehensive memorandum opinion, making important rulings in the area of tax sales law, and disposing of all issues presented by numerous parties involved in this combination in rem tax sale/prospective probate case. Facts: In mid-July 2007, a Limited Liability Partnership (LLP) purchased a tax sale certificate from the District Government for an occupied two-story rowhouse located in the 1700 block of M Street, N.E. In December of the same year, however, the record title holder of the property (the Decedent) died. No petition to open an estate in the Probate Division has ever been filed. The next month, the LLC filed the complaint in this case to “foreclose the right of redemption,” a threshold step in obtaining title to the property. Upon learning of the owner’s death, the LLC filed an amended complaint adding her estate as a Defendant, even though no formal estate existed at probate; it also added seven of Decedent’s heirs as Defendants. The LLC subsequently assigned its interest in the tax sale certificate to a related LLC and the Court granted a motion to substitute the latter as Plaintiff in the case (the Plaintiff). In November 2009, Plaintiff filed a Motion for Judgment, which brought before the Court several competing parties and interests in addition to the Plaintiff: (1) Heirs. These undesignated beneficiaries argued that (a) the original LLC could not have filed a valid lawsuit because it was not registered to transact business in the District at the time and therefore was statutorily barred against doing so; (b) even if it were, it had not properly posted notice of the suit, thereby denying the heirs notice due process; (c) the District had also failed to meet statutory mailing requirements for notice to the property owner; (d) a suit cannot be brought against a named defendant who was deceased at the time of filing; (e) the is no jurisdiction over an estate that has not been formally probated and is without a personal representative (PR); (f) therefore, a complaint against a non-existent party cannot be amended; and (g) consequently, a judgment could not be issued against it. (2) District of Columbia. In defense of its tax sales procedures, the District argued that (a) the statutory notice requirements in tax sale matters satisfy constitutional due process, particularly where, as here, they were accompanied by additional due diligence in locating and notifying interested parties; (b) opening an estate is the responsibility of a decedent’s heirs and if they do not do so, the foreclosure action should proceed against an ostensible PR anyway; and (c) the entire tax sale process would otherwise be disproportionately burdened if purchasers are required to open an estate in order to complete the sale, thus (d) reducing the number of sales and increasing the blight that would result from unsold properties on which taxes had not been paid. (3) AARP. The American Association of Retired Persons via its Legal Counsel for the elderly as amicus for the Heirs, argued that (a) property ownership is a fundamental right and should not be unnecessarily derogated; (b) the difficulty in rehabilitating nuisance properties should recede in the face of the right of owners and tenants to retain their property rights; (c) neither the District’s pre-sale nor the post-sale requirements adequately alert all interested parties as to the impeding loss of the property, particularly because (d) pre-sale notice is only required to be sent by regular mail to the record owner and (e) the Government is not required to conduct any follow-up diligence to assure that it has been received; (f) post-sale notice requirements likewise virtually foreclose the right of redemption without notice reasonably calculated for unknown owners, including a probate process for deceased original owners; (g) it is extremely difficult to re-open a foreclosure sale after the property has been sold, the reasons being limited to lack of jurisdiction or fraud, (h) a process which places a heavy emphasis on ex post facto proof of notice or lack thereof, (i) whereas many people involved in the sale and redemption processes are unsophisticated or economically unable to initiate these procedures; and (j) finally, the Plaintiff and the District overstate the difficulties to a purchaser in opening an estate for a deceased property owner. (4) Plaintiff. The Plaintiff responded to these various arguments as follows: (a) the current Plaintiff is a proper party because it acquired all rights to the property from the previous Plaintiff and subsequently became registered; (b) this is an in rem action against the property, not an in personam action against any individuals, and it therefore is only required to meet the less stringent notice requirements; (c) it did name the proper Defendants, including the deceased record title holder and her heirs, even if an estate has not yet been opened; (d) in order to pursue its property claim, the Plaintiff has no duty to open a suit for deceased property owner where that has not been done by the heirs or a PR, who alone have such a duty; (e) it properly posted notice concomitant with the filing of the original complaint and had no duty to post again following the filing of the amended complaint; and (f) as to entering judgment, pursuant to the pertinent statute a court may do so in a case where the plaintiff has exercised due diligence in attempting to identify and notify all concerned persons or entities. Rulings: The Trial Court ruled on the issues presented as follows: (A) LLC Plaintiff’s Capacity. According to statute, a foreign corporation “may not maintain any action at law or equity in any court of the District until it has obtained a certificate of registration.” The original LLC Plaintiff, however, was not registered in the District the time it filed this case and before assigning its rights to the substitute LLC, which did register. The Trial Court found that the operative phrase is “maintain an action” – distinguishing it from when the action was ‘brought” -- and that “it is generally held that reinstatement of a repealed charter relates back” to a relevant point in time. Thus, while our Court of Appeals has never ruled on this issue, the Trial Court found that “the vast majority of courts” interpret such statutes to mean that coming into “compliance after an action has commenced is sufficient to enable the corporation to proceed with [“maintain”] the suit.” (B) In Rem Action. All tax sales cases are in rem actions against the subject property itself, although “notice sufficient to satisfy statutory and due process requirements must still be given to those parties with an interest in the property” which is “reasonably calculated to apprise interested parties of the imminent prospect of their loss of valuable property rights.” (C) Procedures and Notice. Such properties can only be conveyed pursuant to “strict compliance with the tax sale statute and regulations,” including adequate notice to the record title holder, while other parties may be designated as “all persons that have or claim to have any interest in the real property” at issue. Those parties can be identified by a search “in accordance with generally accepted standards of title examination of the records of the Recorder of Deeds and probate decisions of the Superior Court.” Where such a search does not identify a property owner, s/he “may be included as a defendant by the designation ‘Unknown owner of real property, the unknown owner’s heirs, devisees, and personal representatives and their … heirs, devisees, executors, administrators, grantees, assigns, or successors in right, title and interest.’” Here, the Court ruled, the Plaintiff is not required to dismiss its case due to the fact that the originally-named owner is deceased, because, again, this is an in rem action and because the notice statute comprehends the research of “probate decisions” of this Court. (D) Probate Estate Vel Non. Considering the statutory scheme in these matters as a whole, the Court concluded that it provides that “all property of a decedent, upon the decedent’s death, shall pass directly to the personal representative, who shall hold the legal title for administration and distribution of the estate.” The Court concluded that the statute therefore constructively comprehends that a PR exists or will exist in an estate for tax sale and other purposes. That being so, the issue became what additional steps, if any, a plaintiff must take to identify a PR or other interested parties. One step is for a Plaintiff to file a petition to open an estate for a deceased title holder. The Court noted that, while there is nothing to prevent such an action, there is also nothing in the legal authority requiring that a purchaser do so. The statute does, however, require a purchaser “to perform a diligent search” in the probate records for any such interested parties. The statute also provides that (1) where a property owner, living or dead, is unknown s/he “may be proceeded against as if [s/]he were living”; (2) where the proper party is known to be deceased, all unknown potential heirs and devisees may be notified by the usual method of publication, (3) after the court “is satisfied that due diligence has been used to ascertain the unknown heirs.” Those parties may then, if they wish, open an estate for the decedent. The Court concluded, however, “that it is not the plaintiff’s burden to open an estate for a deceased party.” (E) Adequacy of Due Process. The Court then addressed whether the notices in the instant case satisfied due process. It concluded that the Plaintiff’s steps herein comport with the “requirement that it be reasonably calculated to apprise interested parties of their imminent loss of valuable property rights” under the long-standing Mullane Rule (1950). Here, the notice facts are not especially complicated. The title holder was both known and deceased, but since there was no PR for her estate, the Court concluded that the usual service by publication alone would “virtually assure that … persons who have an actual interest in the property … will not receive actual notice.” Yet, that was not the case here. The Court found that the Plaintiff had performed “due diligence to locate all … the reasonably ascertainable heirs” of the known decedent “and add them as parties to the action” and that “it is well-settled that defendants to a tax lien proceeding are not mandated to receive actual notice.” These “additional reasonable steps” satisfied the Court “that the actions taken by Plaintiff in this case comport with due process.” (F) Sufficiency of Service. In the face of a challenge to service by one of the heirs (who was, actually, not even a named party in the suit), the Court found that, even though vicarious service had been made on a 16-year-old girl at her residence, this was sufficient under Rule 4(e)(2) and, in fact, constituted “actual notice,” though adding that the ruling was limited to this case and “should not be read as a general rule allowing tax lien plaintiffs to proceed against known heirs … without making those persons parties to the action.” (G) Posting. The Heirs complained that, after the Plaintiff filed an amended complaint, it did not post same on the affected property, as required by statute, and that the posting of the original complaint had lapsed. But, the Court found, the statute only requires a posting of the original suit and does not require posting of subsequent “changed circumstances within the case itself.” Thus, the Court ruled, the statute does not require that posting on a property occur more than once.”(H) Sufficiency of Tax Sale Proceedings. Finally, the Court addressed the Heirs’ facial attack on the District’s procedures for tax sales who argued that a plaintiff bears the burden of proving that the District had complied with all aspects thereof, and that there was no evidence that it had done so. But the Court noted the “presumptive” effect of the pertinent statute which provides that “in an action to foreclose the right of redemption, the plaintiff shall not be required to plead or prove the various steps, procedure, and notices for the assessment and imposition of the taxes for which the real property was sold or the proceedings.” Rather, the statute goes on to say, “the validity of the procedure is conclusively presumed, unless a defendant … shall, by answer, plead [any such defect] as an affirmative defense.” Here, the Court found that the Heirs had failed to satisfy their standing to make such an attack – although it pointed out that they still had the opportunity to do so at this stage of the case. Yet, because their argument was predicated entirely on the misplaced premise that the Plaintiff had this burden of proof, their argument could not be heard. (I) Conclusions. The Court therefore arrived at the following conclusions: (1) The record “definitely establishes” that Plaintiff has complied with all statutory requirements. (2) The Plaintiff has been “duly diligent” in attempting to locate and joint all interested parties in the case. (3) The Government must issue to the Plaintiff within ten days of the Order herein a statement “detailing the amounts required to a deed” on the property at issue. (4) The Government is required to deliver an executed deed in fee simple to Plaintiff on the property. (5) The deed is to be subject to (a) the tax lien, (b) the tenancy of the current resident, and (c) any easements of record running with the land. (6) Completion of these processes “shall vest in Plaintiff fee simple title to the property free and clear form all claims, estate, or rights of Defendants or any person claiming through” them. Thus, the Plaintiff prevailed on all issues raised.
RULE 16 MOTION TO COMPEL CRIMINAL DISCOVERY
CRITERIA FOR PRODUCING DRUG CHEMICAL ANALYSIS AND RELATED PROCEDURES
Précis: Criminal Rule 16 mandates Government disclosure of pertinent information that is “material to the preparation of the defense.” The Defendant has the burden of demonstrating a relationship between the requested evidence and the issues in the case and there must exist a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence. In order to demonstrate materiality, a defendant must make some preliminary showing of a reason to doubt the chemical analysis provided by the Government. A trial court has discretion to determine what type of threshold showing of materiality is appropriate in each case and each discovery request must be evaluated independently to determine if there is a relationship between the requested evidence and the issues in the case. Even if the requested evidence is found to be material, however, the trial court must also consider the burden that producing it would cause the Government. A rule that flatly prohibits a trial court from considering the burden to the government would irrationally remove an obviously relevant factor from the analysis and would inevitably increase litigation costs exponentially. For “routine drug cases,” beyond the typical reporting forms, only documents relevant to the DEA Lab’s Standard Operating Procedures need be produced because this information is likely to assist a defendant in understanding the reports and paperwork that traditionally accompanying such cases. In a typical drug case, however, neither the Government is not required to produce the lab’s audit and accreditation information, the calibration record of any instrument used, or the proficiency testing record of the chemist.
Abstract: In a balanced ruling (though with much room for disagreement on certain critical points), the Trial Court in this matter responded meticulously to far-reaching, detailed, and substantive Defense requests to compel Rule 16 discovery in what all concerned was a “routine drug case,” regarding supplemental materials which should accompany the usual finding of a controlled substance in the usual DEA-7 form in such matters. Facts: On February 27, 2010, in a not untypical situation, a routine traffic stop resulted in the discovery of 100 empty zip-lock bags, usually associated with packaging for distribution of controlled substances, in the trunk of the driver’s car; presumptive cocaine was recovered from his person as well. A quantity of presumptive marijuana was recovered from the lone passenger. They were charged with simple possession of cocaine and possession with intent to distribute marijuana, respectively. A forensic chemist with the DEA tested both the purported marijuana and cocaine little more than a month later and confirmed them to be these controlled substances, as reported in a DEA-7 form. Defense Requests. The Government was served with a Rosser Letter requesting all “discoverable material related to scientific testing of the alleged controlled substances” pursuant to Criminal Rule 16, which requires the Government, upon request, to allow a defendant “to inspect and copy … documents [and] data [inter alia]” in its possession, custody or control if “the item is material to preparing the defense.” The Rule also requires such disclosure, under the same circumstances, of “the results or reports of any … scientific test or experiment if … the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.” The Rosser Letter sought the chemist’s case file; the record of the chain of custody; statistical information; copies of all protocols, handbooks, guidelines, and training materials; results of validation studies; source and usage records for all reagents involved; instrument and equipment manuals and maintenance records; laboratory production data and audit reports; and background information on all personnel involved in the testing process, together with a request to allow its own expert to inspect the DEA laboratory. Initially, the Government declined to provide the Defense with anything more than the DEA forms. The Defense then filed a Motion to Compel (joined by Counsel for both Defendants), supplemented by the affidavit of an expert witness in forensic chemistry, who stated that it would be “impossible to evaluable the validity and reliability” of the Government’s drug analysis without the kind of “analytical information” requested by the Defense. The Defense pointed out that the kinds of materials it was requesting were turned over “as a matter of course” in DNA cases. It also relied on a recent ruling by another Superior Court Judge who had made a ruling in a similar case, using the same methods, which was favorable to some of the disclosure requests being made herein. The Court then set a briefing schedule for the Government to reply to six categories of information that the Defense was seeking with regard to the DEA Lab: (1) proficiency testing records; (2) accreditation and inspection reports; (3) standard operating procedures; (4) calibration records for instruments used; (5) an expansion on what was meant by a “confidence level”; and (6) a glossary of terms used in completing reports. Government Response. The Government maintained that the extensive Defense requests were (1) overbroad; (2) immaterial to preparing the defense case; (3) without any “initial showing” that there was any “reason to doubt” the test results; (4) “incredibly burdensome” to comply with; and (5) an unnecessary precedent for all future drug cases. Aside from insisting that a “preliminary showing” was required for such extensive disclosures, the Government also presented an expert’s written declaration that “there are no mandatory methods” in these matters and that DEA chemists may rely on several approaches in conducting tests on any given suspected controlled substance. Results from any or a combination of methods used in a given test would “not be self-explanatory” and would require accompanying testimony, thus creating a new stratum of DEA obligations to the courts. As to proficiency tests, the Government contended that any failure on such a test would routinely be produced under the Giglio case (1972), requiring that all material evidence be disclosed. Moreover, any DEA chemist would know his or her proficiency test record and could be interviewed before trial and would be subject to cross-examination under oath at trial. Finally, prior to the hearing, the Government provided the Court, for in camera inspection, over a half dozen accreditation and related laboratory documents. Hearings. The Court conducted three days of hearings on these issues spaced throughout the month of September 2010. Defense Evidence. The Defense called the forensic chemist on which it was relying who testified that, although the DEA tests included such steps as a microscopic exam, color and chromatography analysis, and were the “common industry standard,” additional information would be needed in order to render an opinion about their “reliability and accuracy.” This included the following: (1) Access to the DEA Lab’s Standard Operating Procedures, including identification of plant material, reagents, coloration, explanations for “blanks” where there is no positive report for a chemical, the nature of a control element, and the solvent system used in the chromatography, among other factors. (2) Although no instrument was used to test the marijuana, the cocaine was subjected to such testing. The Defense expert testified to what seemed obvious, i.e., that “you could get bad data that could be misinterpreted … [as a] false positive.” (3) Proficiency testing results are extremely relevant to a chemist’s “ability to accurately and reliably perform these tests,” and to inform whether the chemist has ever conducted a test on a given putative controlled substance. Government Reply. At the second segment of the hearing, the Government announced that it would voluntarily provide the Defense with all the materials that it had previously provided for in camera inspection, but specified that it was doing so “as a courtesy” in this case only and that it still did not consider the disclosure mandatory under Rule 16. As to other materials, it provided the Director of the DEA Lab as its own expert witness, who testified regarding the following Defense requests: (1) Although averred that it was impracticable to produce the Lab’s Audit and Accreditation information, even the Defense Expert found this information not particularly useful. (2) He flatly contradicted the Defense Expert’s testimony that improper calibration of instruments could result in a false positive, stating that “a mis-calibrated instrument would never cause a false positive result because the data would be ‘errant’ and would not produce anything that would look like a drug,” so that the chemist “could immediately … tell if the instrument is working properly.” Apart from the irrelevancy of the information, he contended that it would be “very challenging” for the DEA Lab to keep track and report every instrument calibrations. (3) He repeated that DEA chemists undergo annual proficiency testing and that if any of them fail the test, not only does the Government routinely provide that information under Giglio but the chemist is also subject to being interviewed before trial and is subject to cross-examination on the issue at trial. He also added that it would be “very burdensome” to keep, peruse, pull, and provide these test results for the entire Lab in any given case. (4) He testified that the materials already voluntarily provided to the Defense were “the closest thing the DEA has to standard operating procedures for the chemists.” (5) Finally, the Government expert testified that it would be “crippling” for the DEA Lab to provide all the materials requested by the Defense “in every routine drug case.” Closing Arguments. At the third segment of the hearing, the Defense represented, despite all the Government disclosures, it “still had questions about whether additional documents might also fall under the rubric” of Standard Operating Procedures. The Government offered to make the entire panoply of those procedures available to the Defense in this case only, under a protective order. That being so, it continued to maintain, the Defense was now obligated “to come up with … more than just saying [that] maybe additional information would help” its understanding of the DEA testing procedures. The Defense rebuttal was a broad contention that “anything relevant to an issue in the case is material to the preparation of the defense,” whether inculpatory or exculpatory because it is necessary in order to determine whether the better course for the defendant is to seek a plea agreement or go to trial. The Defense also called attention to the recent Report of the National Academy of Sciences on the “potential weaknesses in forensic science” by way urging the Court not to apply a “heightened standard” to such discovery requests. Finally, the Defense argued that Rule 16 makes no mention of any burden on the Government and that factor should therefore not be a part of the Court’s consideration. In summary, the Defense still contended that the Government should produce the DEA’s (1) Standard Operating Procedures; (2) audit and accreditation information; (3) proficiency testing records; and (4) calibration records for instruments. Rulings: The Court ruled on the issues presented as follows: (A) Applicable Standard. Rule 16 mandates Government disclosure of pertinent information that is “material to the preparation of the … defense.” Whether evidence is material requires a pre-trial determination from the defendant’s standpoint “of whether the evidence has potential value for the … development of a defense.” In order to make that connection, the Court ruled under governing appellate case law, the defendant “must demonstrate a relationship between the requested evidence and the issues in the case, and there must exist a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence.” This showing “requires a ‘strong indication’ that evidence ‘will play an important role” in any of these categories. The Defense bears the burden of showing materiality by making “a threshold showing” of same. Thus, as the Government had argued throughout this matter, the Court ruled that “in order to demonstrate materiality, defendants must make some preliminary showing of a reason to doubt the chemical analysis provided by the Government” as, for example, where there is reason to believe that there has been a failure to maintain lab equipment properly or an opinion of a qualified witness as to a flaw in the testing procedure and the validity of drug test results. With seeming retrenchment, however, the Court quoted additional appellate case law which has followed a “liberal” interpretation as to materiality, stating that “the threshold showing materiality is not a high one” and that “trial courts must be solicitous of discovery motions and careful not to deprive a defendant of a critical, statutorily provided defense tool.” The Trial Court therefore concluded that the Court of Appeals did not “intend to impose a rigid rule under which the ‘higher’ standard is automatically triggered once a certain amount of discovery is provided, but, as it stated in the controlling case, it would “leave it to the discretion of the trial court to determine what type of threshold showing of materiality is appropriate in each case.” Noting that there was no question as to the good faith of the Defense requests in this case, the Court reasoned that “it seems most appropriate that each discovery request be evaluated independently to determine if there is a relationship between the requested evidence and the issues in the case.” The “material issue” in this case, the Court found, was “the accuracy and reliability of the particular drug analysis that will be admitted into evidence.” The Defense therefore had the burden of establishing the materiality of its requests as they would “assist the defense either … in understanding the paperwork … provided regarding the drug testing … or … in uncovering information that may be used to cross-examine the chemist about the testing itself or about the reports that describe the testing.” (B) Burdensomeness. Significantly, however, the caselaw proceeds on a liberal line, “absent a showing of undue burdensomeness.” Analogous to balancing the probity of evidence against its potential prejudice, however, the Court also ruled that even if the requested evidence is found to be material, it must also consider the prospect of the burden that producing it would entail, thus rejecting the Defense contention that this should not be a factor under Rule 16. “A rule that flatly prohibits a trial court from considering the burden to the government,” the Court asserted, “would irrationally remove an obviously relevant factor from the analysis and would inevitably increase litigation costs exponentially.” (C) Findings of Fact. Noting that a similar case had been reversed because the trial court had failed to make factual findings in denying the defendant’s motion, the Court made the following specific findings with regard to the Motion to Compel herein: Specific Inclusion. Finding that the Defense had met its burden, the Court granted its Motion to Compel only for the Standard Operating Procedures for the DEA Lab, including internal guidelines “that explain how the tests at issue … should be performed at the laboratory, or what procedures should be followed to produce the reports and paperwork that are contained in the relevant DEA files.” The Court found that this documentation is “likely to assist the defendants in understanding thee reports and paperwork that [already] have been disclosed to them, as well as how the DEA chemist produced the results and accompanying documentation that the Government will rely on at trial” for purposes of cross-examination. Specific Exclusions. Crediting the Government’s expert in excluding these factors from being compelled, the Court: (a) Declined to require the DEA Lab Director to review all of its system orders to determine if they are materially responsive to the Standard Operating Procedures because they ‘are highly unlikely to contain the type of information sought … and it would be unduly burdensome to require the Government to scour … [these records] … for relevant information.” (b) Found that the Defense had not met its burden in proving the materiality of the Lab’s audit and accreditation information and that “there is no reasonable indication that disclosure of … [this] information will lead to admissible evidence or appropriate questions on cross-examination. Moreover, such a task would be “unduly burdensome, the Court found. (c) That the production of the proficiency testing record of the chemist in this case would “not be particularly relevant” in the preparation of the defense because, if extant, such information would have been disclosed under Giglio and is already available via cross-examination. It, too, the Court found was too burdensome a task to collect and produce. (d) Crediting the Government expert that a mis-calibrated instrument would not have resulted in a false positive for the cocaine charged against the driver of the car, and finding that it could be derived from the spectrographs produced thereby, the Court found that “general calibration records are not material to the preparation of the defense because they would not assist … in understanding the spectrographs and there is no reasonable indication that the records could lead to the discovery of impeachment … or any other kind of admissible evidence.” Moreover, they also were deemed “extremely burdensome” for compelled disclosure “in a routine drug case.”
ISSUE PRECLUSION IN CIVIL CASE BASED ON GUILTY PLEA IN COMPANION CRIMINAL CASE / EFFECT OF STATUTE OF LIMITATIONS ON COUNTERCLAIM
Précis: For issue preclusion purposes between a prior criminal case and a civil case involving the same incident, a distinction is to be made between a guilty plea in the criminal case and a trial therein, where the common defendant had a full opportunity to contest liability. Only in the latter instance is issue preclusion applicable to the civil case. Case law by the D.C. Court of Appeals which varies from precedent set before the establishment of the current D.C. Court system in 1970, retains its precedential effect unless it was overturned by the U.S. Court of Appeals in the years between the local decisions, or is overturned by an en banc decision by the current D.C. Court of Appeals. As the case law now stands, the filing of an original claim tolls the running of the statute of limitations for all counterclaims and other claims relating to the events or occurrence is involved.
Abstract: This decision by a Superior Court Judge resolves two thorny procedural issues involving the application of issue preclusion between criminal and civil cases arising out of the same incident and the effect that the statute of limitations has on a counterclaim. Facts: Prior to being sued for assault in this civil case, the Defendant had pled guilty to assault in a companion criminal case arising out of the same incident. After being sued civilly herein, the Defendant counterclaimed for assault, battery, and intentional infliction of emotional distress. In a summary judgment motion, the Plaintiff moved to preclude the counterclaim based on (1) the collateral estoppel effect of the Defendant’s prior guilty plea, or alternatively (2) that it was time-barred as a counterclaim. Rulings. The Trial Court ruled on the issues presented as follows: (A) Issue Preclusion. The Plaintiff’s theory that the Defendant was precluded by his prior guilty plea was misplaced. In the case law which he cited, the common defendant had been tried, with a full opportunity to defend against liability. Here, however, the Defendant’s liability was never fully litigated. “In such cases, a criminal conviction does not estop the defendant from litigating the issue in a subsequent civil lawsuit,” the Court ruled. While the Defendant’s guilty plea may be used as evidence in the civil case, subject to rebuttal, it does not operate to preclude it altogether. Summary judgment on this theory was therefore denied. (B) Statute of Limitations. The judicial policy that the filing of an original claim tolls the running of the statute of limitations for all counterclaims and other claims relating to the events was established by case law antedating the creation of the Superior Court in 1970. The Plaintiff contended, however that 1972 case law from the D.C. Court of Appeals held that a counterclaim that goes beyond matters of defense is an affirmative cause of action that should be tested apart from the original claim in determining whether the statute of limitations would bar the counterclaim. The Trial Court ruled that intervening decisions by the U.S. Court of Appeals for the D.C. Circuit, which were rendered prior to the establishment of both the D.C. Superior Court and the D.C. Court of Appeals, are binding for that period, and are guiding precedents unless overturned by an en banc decision of the current D.C. Court of Appeals. Since the ruling relied on by the Plaintiffs was post-establishment of the current local court system, but was not a product of an en banc ruling, it was inapt to this issue, the Trial Court ruled. Consequently, the pre-establishment case is still good law and the Defendant’s counterclaim is therefore not barred under it. Accordingly, the Plaintiff’s motion for summary judgment was denied on this point as well.
CIVIL PROCEDURE / EQUITABLE REMEDIES
PROPERTY DIVISION / JOINT TENANCY / TENANCY IN COMMON / TENANCY BY ENTIRETY
Précis: Where a deed does not contain an express description of the property, all ambiguities must be resolved by endeavoring to determine the intention of the parties. Where land is concerned, basically all that is required is a description sufficient to afford the means of locating it. A factor in making the determination as to the parties’ intent is an evidence-worthy accounting of their actions subsequent to the deed at issue. A validly signed and notarized deed is effective upon its delivery to the grantee, irrespective of whether it is publicly recorded. There is no barrier to a joint tenant who marries and then conveys his share of a joint tenancy to the spouse as a tenancy by the entirety. Under those circumstances the remaining joint tenants can be held to pay their proportionate share of the property taxes. Rent could only be demanded of persons who are occupying premises without any legal right to be there. That is not the case with regard to joint tenants or tenants in common. Likewise, a contractual demand for quantum meruit does not lie under such circumstances because the occupation of the premises is entirely legal. Properly speaking, “contribution” is a concept inherent in tort law, not property or contract law, wherein one tortfeasor, if impleaded, must contribute to the payment of a judgment against one or more others. The equitable remedy of Contractual Reformation is available only when there has been an error in reducing the parties’ agreement to writing and the writing does not properly reflect that agreement. A court may therefore “reform” the language of the written contract to reflect the actual agreement of the parties.
Abstract: In this case, the Trial Court parsed through some arcane aspects of property law in order to arrive at a decision as to the interests of various survivors to a parcel of residential property. Facts. The Principal in this case was the mother of five sons, A, B, C, D, and E, and a daughter, F. Since 1972, the mother and her eldest son A, owned her residence in the 5000 block of Fifth Street, NW, as joint tenants with the right of survivorship. The mother’s next eldest sons, B and C, lived in the residence with her. When the mother died in or about 2001, the property fell to her oldest son, A, now living in Maryland, but his brothers B and C continued living in the house. Neither paid rent to A after their mother’s death but B paid the utility bills and maintained the upkeep of the premises. It was undisputed that this was the only property that A owned in the District. In September 2002, A, B and C went to the D.C. Recorder of Deeds to file papers transmitting title to the property to all three as joint tenants. There, the necessary notarized documents were filled out, signed by all three brothers, and filed, together with a notarized tax form, again signed by all three, designating C as the person to whom tax levies were to be returned. B took the deed for safekeeping and the deed was never publicly recorded. Two years later, A married his longtime girlfriend X, both still living in Maryland, who had known the family for years and who knew that originally the house had been owned by her husband and his mother. Several months after that, in April 2005, the newlyweds went to the Recorder of Deeds and filled out a deed by which A as the grantor, transferred the property from himself alone to him and his wife X as tenants by the entirety. Meanwhile A, B, and F (the sister) continued to pay taxes on the property until the deaths of F in 2005 and A in 2008. During that time, though, A had never sought reimbursement from his brothers B and C, who continued to live in the family house. After A’s death, his widow, X, who remained in the marital domicile in Maryland, paid the taxes on the property, together with the insurance premiums, and through this suit sought proportional reimbursement from B and C for same. She also sent B and C a notice to pay her rent or quit the premises. (brothers D and E were never involved in the litigation). Brothers B and C, however, ignored X’s demands, believing that after the deaths of their mother, Brother A, and Sister F, they were the rightful owners of the property. B and C then filed this lawsuit against X, seeking a declaratory judgment as to title to the property. X counterclaimed for “contribution” as to taxes and other expenses from B and C. Rulings. The judgment of the Court ruled on the issues presented as follows: (A) Liberal Interpretation. The rule is that where a deed does not contain an express description of the property, all ambiguities must be resolved by endeavoring to determine the intention of the parties. Where land is concerned, basically all that is required is a description sufficient “to afford the means of locating it.” A factor in making the determination as to the parties’ intent is an evidence-worthy accounting of their actions subsequent to the deed at issue. Here it was clear that A’s intent in the 2002 conveyance was to re-title the property jointly in himself and his two brothers B and C. This intention was buttressed by an external reference in the deed to a descriptive document, the signature of B and C as grantees on the conveyance (which were not even required by law), the concomitant signing and filing of the tax form, and because this was the only property owned by A in the District. (B) Notarization. The Court also found that the notary signature and seals on the documents qualified under D.C. law. (C) Effectiveness of Deeds. A validly signed and notarized deed, is effective upon its delivery to the grantee, irrespective of whether it is publicly recorded. (1) Thus, the Court found that the 2002 deed among the three brothers was effective. Moreover, inasmuch as X received her interest in the property gratis, and did not extend any credit secured by the property, the Court found her not to be a creditor, subsequent bona fide purchaser, or mortgagee of the property. (2) Likewise, the 2005 deed from her husband granting her title by the entirety, thus making her and part owner via right of survivorship, was also effective. This deed, too, was validly notarized, as well as having been publicly recorded, and was therefore effective in favor of X. (D) Tenancy by Entirety. There is no barrier to a joint tenant who marries and then conveys his share of a joint tenancy to the spouse as a tenancy by the entirety. Consequently, A’s enfolding X into an ownership in the property made her one-third tenant in common with her two brothers-in-law, B and C, as joint tenants, after her husband’s death (B and C remained joint tenants as to each other). (E) Judgment as to Title. Accordingly, in this suit for declaratory judgment as to title, the Court held that Plaintiffs B and C retained a two-thirds share in the property as joint tenants, the survivor as between them to acquire a full two-thirds share, and that X, the Defendant herein, retains a one-third undivided share in the property as a tenant in common. (F) Counterclaim. X’s counterclaim sought reimbursement for a share of all back property taxes and for back rent. (1) All parties agreed that if the Court were to find that Plaintiffs B and C had any title in the property, they had a right to occupy it without paying any rent to X. At the same time, however, the fact that X’s late husband, A, had been solely paying the taxes and had never sought reimbursement from his brothers B and C, was evidence of his intent not to burden his younger brothers with such obligations. Considering all the circumstances of the case, the Trial Court concluded that the surviving brothers were only liable for their share of property tax payments made by X since her husband’s death. Thus the Court ruled that B and C were only required to pay X their proportionate two-thirds share of the property taxes since their older brother’s death. (2) Rent can only be demanded of persons who are occupying premises without any legal tenancy right to be there. That is not the case here, the Court concluded. Brothers B and C, in fact, had a two-thirds portion of title to the property. Consequently, they had a right to occupy it without paying rent to the one-third owner, the widow X. (G) Quantum Meruit. The widow’s demand for quantum meruit was denied on the grounds that a proportionate debt due based on the impermissible occupation of the premises did not lie here because the occupation was entirely legal. (H) Contribution and Reformation. The Court took the time to distinguish these two legal terms. (1) Properly speaking, “contribution” is a concept inherent in tort law, not property or contract law, wherein one tortfeasor, if impleaded, must contribute to the payment of judgment against one or more others. What was at issue in this case, however, was whether by implied contract the brothers owed anything to the widow. (2) Contractual Reformation is available only when there has been an error in reducing the parties’ agreement to writing but writing does not properly reflect that agreement. A court may therefore “reform” the language of the written contract to reflect the actual agreement of the parties. The Court, however, found that this was not what occurred in this case and therefore had no need to resort to this equitable remedy.
CRIMINAL LAW AND PROCEDURE
FIREARMS AND TOOLMARK IDENTIFICATION TESTIMONY / FRYE TEST FOR GENERAL ACCEPTANCE / LIMITING LANGUAGE ON EXPERT OPINION
Précis: Although the process still requires some refinement, the principles of uniqueness and reproducibility in the current methodology of firearm and tool mark comparison identification have been demonstrated and validated sufficiently to date for its results to be admitted into evidence at a criminal trial. The methodology is buttressed by cross-checking, peer review, and proficiency testing and, accordingly, is generally accepted in the relevant scientific community. Moreover, the prejudicial effect of such testimony will not substantially outweigh its very high probative value. Any defects, deficiencies, or shortcomings can readily be brought out by well-prepared cross-examination or the testimony of contradicting experts, together with proposed jury instructions. Finally, limitations placed on the language which such an expert witness may use in concluding that a “match” has been made to “a practical certainty” or to “a reasonable degree of certainty within the field of firearms and toolmark identification” between objects, provide safeguards against juror misapprehension of the weight and quality as to this kind of evidence.
Abstract: In a trial-level opinion that possibly ranks second only to that of Judge Henry H. Kennedy Jr.’s initial rejection of forensic DNA evidence in United States v. Porter, 122 D.W.L.R. 2437 (Dec. 14, 1994), the Judge in this case admitted, but placed significant limitations on, the admissibility of comparison evidence and expert opinion testimony in firearm and toolmark case. Facts. The five Defendants in this case are charged in a 100-count indictment with conspiracy, murder, assault with intent to kill, obstruction of justice, and related firearms and other offenses, including violations of the Criminal Street Gang Act. The Government proffered that it intends to offer expert testimony regarding firearms evidence identifying spent projectiles as having been fired from the same weapon as well as toolmark evidence identifying spent shells for the same purpose. Since the 1930’s, firearms identification procedures, utilizing a comparison microscope, have been used to identify the following to be submitted into evidence in criminal trials: lands and grooves on fired projectiles created by the rifling inside the barrel of a firearm; firing pin imprints on the heel of a shell casing; extractor striations on the outside of a cartridge created by the mechanism which pushes a bullet out of the magazine into the firing chamber; and ejector striations on shell casings created by the mechanism which discards the spent shell. Nevertheless, the Defendants herein collectively filed motions to exclude or limit such identification and opinion evidence under the Frye Test on the grounds that the methods heretofore used in making such identifications “are not generally accepted as reliable by the relevant scientific community.” The foundation for this argument, and much of the Court’s discussion, is a 2009 Congressionally-mandated Report from the National Research Council (NRC) of the National Academy of Sciences which “calls into question the validity of many long-recognized scientific disciplines.” Alternatively, the Defendants sought to circumscribe the testimony of any expert in this field to expressing an opinion that any ballistics evidence from the crime scene is only “more likely than not” associated with a recovered firearm associated with one or more Defendants. Such factors as non-ballistic toolmarks, blood spatter, elevator functioning, eyewitness identification, psycholinguistics, drug-sniffing dogs, the manner of illicit drug trade, and field sobriety tests have all been subject to re-examination in recent years. Eschewing any claim to “absolute certainty” in firearm and toolmark identification, and recognizing that current procedures, like the machines which produce such artifacts themselves, “may change over time,” the Government proposed that its expert express his opinion either to a “practical certainty” or to a “reasonable degree of scientific certainty.” Rulings. After a careful consideration of all the submissions and referenced sources, the Trial Court made the following findings of fact and conclusions of law: (A) Firearms Examination. All reputable firearms examiners, including those with the D.C. Metropolitan Police Department, are member of the Association of Firearm and Tool Mark Examiners (AFTE) which is the leading proponent of “pattern matching” in such matters. To the extent that protocols are attributable to this practice, the AFTE’s theory is that an acceptable match occurs “when the unique surface contours of two toolmarks are in sufficient agreement” so as to allow an examiner to offer an opinion that a specific tool or firearm caused the evidential marks. Both the Government and the AFTE, however, acknowledge that such identifications “are largely subjective determinations based on the experience, training, and observations of the examiner.” (B) Fundamental Assumptions. The NRC Report concluded that the fundamental assumptions that firearm toolmarks are unique and reproducible “has not yet been fully demonstrated” and that “additional research on the uniqueness and reproducibility of firearms related toolmarks would have to be done to put the basic premise of firearms identification on a more solid scientific footing.” This would assure, as one expert contended, that “a sufficiently high number of corresponding individual characteristics” on an artifact would have “a very low probability of having occurred as a result of chance and therefore must be the result of a common cause.” Nevertheless, the Report pointed out, error rates in comparisons of striae validation studies are “extremely low” and several courts have found that “there is no [persuasive] evidence [thus far] that the tests are inaccurate or otherwise deficient.” (C) Science Vel None. Such decisions, the NRC Report stated, “involve subjective qualitative judgments by examiners and the accuracy of examiners’ assessment is highly dependent on their skill and training.” Because of the large degree of examiner interpretation in such matters, the Judge agreed with other courts that neither firearms nor toolmark identification is a “science,” though finding that this was a “threshold question … not a dispositive one.” Rather, the Court concluded, it “straddles the line between science and other specialized or technical expertise.” The pivotal question, it posited, is “whether it is supported by methodology that is sufficiently recognized in the relevant scientific community.” (D) Methodology. Acceptable methodology must be that which “is testable and has been tested; … has been subject to peer review and publication; [with an acceptably low] rate of error; … standards controlling the technique employed; and … [has general] acceptance within the [pertinent] scientific community.” Endemic to this procedure are “standardized practices” with the following requirements: (1) documented work product stating the reasons for a “match” conclusion; (2) review by another qualified examiner; (3) outside peer review via publication; and (4) regular proficiency testing for error rates. (E) Legal Standards. Our Court of Appeals has set forth in at least two major cases, the legal standards for the admissibility of unique scientific or -related evidence. In the Dyas case (1977) the Court imposed three basic pre-requisites which must be shown by a preponderance of the evidence: (1) the subject matter must be distinctly related to some science, profession, business, or occupation; (2) which is beyond the ken of the average layperson; and (3) the expert witness must have sufficient skill, knowledge, or experience in that field so that the opinion will aid the factfinder in the search for the truth. In the Porter case (1992), the Court required that the condition for introducing novel scientific evidence is a showing by the same standard that it is “generally accepted in the relevant scientific community.” (F) General Acceptance. The Court concluded that the AFTE standards for documentation, confirmatory testing, proficiency examinations, low error rates, supplemental intra-lab opinion, and peer review, all meet the over-arching requirements that the “pattern recognition” methodology used y AFTE-certified firearm and toolmark examiners “is reliable and that it is generally accepted in the relevant scientific community.” (G) Limiting Nomenclature. As to the language which the Government’s experts are to be permitted to use at trial, the Court took a middle road. It proscribed any testimony that this type of evidence can be presented with “absolute certainty.” Likewise, it would not permit testimony that there is another artifact that could match the proffered forensic evidence is “a practical impossibility,” finding that phrase to be essentially the same as “absolute certainty.” Similarly, having already found that this type of evidence is not yet a “science,” the Court also precluded any expert testimony that a match has been made to “a scientific certainty” or even to “a reasonable degree of scientific certainty.” At the same time, however, the Court concluded that experts in this field should not be limited to a pedestrian standard of “more likely than not.” Indeed, it is because “there can be no ‘perfect match’” in this type of imprint evidence that such comparisons need not be identical for an examiner to declare a “match” or to render some quantifiable “degree of statistical probability or certainty” as to same, the Court ruled. Instead, it settled on allowing the Government expert to state his opinions to “a practical certainty” or to “a reasonable degree of certainty in the field of firearms and toolmark identification.” This approach, the Court concluded, would keep the jury from relying to an impermissible degree on the expert testimony and would, at the same time, permit the Defendants to cross-examine the Government’s expert within the context of the actuality of the current state of such evidence, as well as to submit pertinent jury instructions at the end of trial. (H) Conclusions. (1) The Court was “satisfied that the principles of uniqueness and reproducibility have been demonstrated and validated sufficiently to support the basis of the AFTE theory and the methodology of firearms identification utilized in this case.” (2) The “efforts to develop the application of statistical probabilities to firearms identification methodology do not invalidate the traditional pattern matching theory.” (3) The methodology is buttressed by cross-checking, peer review, and proficiency testing and, accordingly, is “generally accepted in the relevant scientific community.” (4) Moreover, the prejudicial effect of such testimony “will not substantially outweigh its very high probative value.” (5) Any defects, deficiencies, or shortcomings can readily be brought out by well-prepared cross-examination or the testimony of contradicting experts, together with proposed jury instructions. (6) Finally, limitations placed on the language which such an expert witness may use in concluding that a “match” has been made to “a practical certainty” or to “a reasonable degree of certainty within the field of firearms and toolmark identification” between objects, provide safeguards against juror misapprehension of the weight and quality as to this kind of evidence.
MOTION FOR RELEASE OF CORPSE FROM MEDICAL EXAMINER’S OFFICE
Précis: Where there is a dispute among those claiming authority to dispose of a decedent’s body for funeral purposes, statutory law gives the D.C. Superior Court jurisdiction over the dispute which, by its very nature, must be an abbreviated proceeding. No hearing is required, although the Court may conduct one in its own discretion. Where a decedent has left written instructions as to his funeral arrangements, even outside a will, they are entitled to great deference. Typically, the priority of preferences for the disposition of a corpse are: current spouse, parents, immediate or extended family members, or other relatives. Where there are no such relatives, the Code permits an adult friend or volunteer to control disposition of the remains. The pertinent statute requires the Court to consider at least five basic factors: (1) the express wishes of the decedent; (2) the practicality of the action requested; (3) the expense and resources which the decedent left to carry it out; (4) the degree of personal relationship between the decedent and his designee; and (5) the degree to which the action will allow for participation by all who wish to pay final respects to the decedent. No particular consideration carries more weight than the others and other factors could come into play. Where written instructions have been left, the only questions are the competency of the Decedent to make them and whether they constitute legally sufficient advance directive which meets the requirements of the statute. If a signature is required on the documents, those sent by email, with no indication of mistake or fraud, will suffice for an electronic signature.
Abstract: This case proves that, as with taxes, death does not necessarily shield one from being the subject of litigation. Facts. In this non-probate matter, the Decedent, a 26-year-old U.S. Navy veteran, who had served three tours of duty in Iraq (ending in 2008), was one of an increasing number of veterans of that conflict who committed suicide after his Honorable Discharge and return stateside. Before taking his own life in May 2010, he laid out express written instructions for the cremation of his body, his wish not to have any kind of funeral or memorial service, that none of his actual family attend the burial, and the disposition of his personal property and residual financial assets. He also took the time to leave a separate last will and testament. He never married and had no children, and although he did have surviving relatives, including a brother and his birth father, he consciously excluded them all from his post mortem plans. Instead, he designated the Petitioners herein, longtime friends with whom he had enjoyed a quasi-family relationship throughout this life, as the principals to carry out his wishes. Prior to his death, he even forwarded the Petitioners a cashier’s check to cover the plans for his cremation and interment in a designated V.A. cemetery. Rulings. The Trial Court ruled on the issues presented as follows: (A) Statutory Framework. The District has laws governing the release of a corpse from the Medical Examiner’s Office for the purposes of a funeral. In the most common situation, there is a current spouse, parent(s), immediate or extended family members, or other relatives (in that order) who have statutory rights as to the legal custody of the decedent’s body for burial. Where there are no such relatives, the Code permits an “adult friend or volunteer” to control disposition of the remains. A legally valid written designation by an adult decedent who was competent at the time of making it, however, trumps this order of priority. In this case, the designees as Petitioners were competing with the birth father over who should have the prerogative to properly dispose of the Decedent’s body. Such disputes are statutorily assigned to the Superior Court for resolution, although they must, of necessity, be abbreviated. The pertinent statute requires the Court to consider at least five basic factors: (1) the express wishes of the decedent; (2) the practicality of the action requested; (3) the expense and resources which the decedent left to carry it out; (4) the degree of personal relationship between the decedent and his designee; and (5) the degree to which the action will allow for participation by all who wish to pay final respects to the decedent. No particular consideration carries more weight than the others and other factors be come into play. Although the statute does not require a formal hearing, the Court, as here, may hold such a hearing in its sound discretion. The Court took the time to point out, however, that the issue before it in this case was not which party would be awarded the dispositional prerogative, inasmuch as it found that both were competent to be endowed with it, but whether the Decedent’s instructions constituted “constituted a legally sufficient advance directive that meets the requirements of” the pertinent statute. (B) Findings of Fact. Likewise, even though the statute does not require written findings of fact in such a case, the Trial Court nevertheless made abbreviated ones. The Decedent’s father, who lives in Georgia, and the Petitioners were the only parties seeking control of his remains. For whatever reasons, he was alienated from all his blood relatives but had a close relationship with the Petitioners, with whom he had lived, dating back to his childhood. His written post mortem instructions, although rendered via email and therefore unsigned, were explicit and clear and there was no real question as to the provenance of the document. He also left a signed will with two witness signatures, as required by law, stating his preferences in several categories. He also provided for the financial recourses to carry out his wishes. (C) Conclusions of Law. The Court emphasized that its opinion did not constitute a formal probate finding, but that it considered the will only as an indication of the Decedent’s competency and final wishes. It ruled that several courts, including the Superior Court, have provisions in effect as to both email filings and the nature of a “signature” via email where that is a requirement. It further concluded that, although they were not governing as to the central issue of the case (the validity of the documentation), the five factors which the statute requires the Court to consider had been properly framed by the Decedent’s written instructions. It also concluded that the Petitioners had standing to pursue their cause of action. It noted specifically that the Decedent’s competency was not called into question simply because he had committed suicide. Although the statute does not set forth a standard of proof, the Court presumed the preponderance of the evidence standard. Finally, the Court concluded as a matter of law that the Decedent’s relationship with the Petitioners was so close as to constitute a “family relationship” and that they were earnestly attempting to carry out the last wishes of their loved one. That the Decedent had expressed his desire not to have any member of his actual family present at his interment, while unfortunate for them, nevertheless did not present any issue of incompetency or invalidate his final instructions. It “would be unfair and totally in contravention of the Decedent’s express instructions” to do otherwise, the Court held.
DIVORCE / CHILD CUSTODY / RELOCATION OF CUSTODIAL PARENT FACTORS
Précis: In this divorce-child custody case, the Trial Court addressed numerous factors to be taken into account as to whether to approve the relocation of the custodial parent to another jurisdiction. Facts. Husband and Wife were married in 2004, and became the parents of two children, a boy and a girl, ages five and two, respectively at the time of this action. The boy had significant developmental delays resulting in social difficulties, but the girl was without complications. The Husband is a military intelligence analyst and the Wife had been working as a news correspondent and producer at various times for three of the major television networks. The Wife had a closer relationship with the youngsters while the Husband largely absented himself from child care duties, although he had a healthy relationship with both children. After the birth of the children, the parties’ relationship deteriorated into volatility resulting in many mutual recriminations, largely over the Husband’s lack of meaningful involvement in child care. It came to the point where the Husband surreptitiously tape-recorded scores of their conversations. Physical violence ensued wherein he slapped her and she threw objects at him. The Wife filed a criminal assault charge and secured a Temporary Protection Order (TPO) barring the Husband from further contact with her and the children. He departed the marital residence and commenced formal separation in December 2008. The parties temporarily agreed that the Wife would have primary physical custody of the children and that the Husband would have visitation every other weekend and every Wednesday night. Consequently, the TPO was vacated and the criminal case dismissed. The marital residence was put on the market and the Wife filed for divorce and child custody. At about the same time, the Wife was laid off with the rest of the production staff at her television network and she began an extensive job search in the D.C. area. In September 2009, she secured a similar position with a local station in New York City and sought permission to move with the children to a nearby residence in New Jersey. The Husband was unemployed at this time and the Wife argued that her upcoming job was essential to financial well-being for the support of the children. Initial proceedings resulted in the designation of the District as the children’s “home state” for child custody and support purposes. In October 2009, the Wife and children moved to New Jersey, where she hired a nanny to help care for them during the day while she worked in New York City. Coincidentally, the Wife’s mother and sister lived within a few minutes’ drive of the new home and also assisted in child care. Shortly thereafter, the Husband also secured appropriate new employment. He kept weekend interstate visits with the children although, at their young ages, the trips were tiring for them. The finality of these arrangements and the divorce remained for the Trial Court to decide. Rulings. Against this factual backdrop, the Court came to the following legal conclusions: The divorce being a foregone conclusion because of the “no fault” predicate of separation without cohabitation for more than a year, the central issue in the case resolved itself to child custody and support, which is governed by statute, and is grounded in the equitable principle of “the best interest of the child,” together with 17 relevant statutory factors pertinent to that goal. The relocation of one parent, however, made the determination much more complex, uprooting the children from the social environment in which they had lived all their lives, a factor arising more frequently in an increasingly mobile society. The problem, the Court noted, is that, although 35 states have statutory provisions addressing this issue, in the District there is neither statutory nor governing case law that issue, and this is the gravamen of this opinion. Drawing on a 1998 opinion of Judge Russell F. Canan, published in the Daily Washington Law Reporter, the Trial Judge determined that its four “location-specific” factors should be added to the 17 statutory ones. These include: (1) the success of the current custody agreement; (2) the motivations of the parents in proposing or opposing relocation; (3) the advantages of the move; and (4) the fairness of the visitation schedule. Other factors from other sources include the quality of the child’s relationship with the custodial parent; the likelihood that the custodial parent will foster the child’s relationship with the other parent; whether the child will receive the educational, health, and social opportunities to which s/he is accustomed; whether effects of the divorce and the move may expose the child to an increased risk of poor academic performance, to drug and alcohol abuse, or teen pregnancy; the effect of the proposed move on the child’s interests and on extended family relationships; and the demonstrated good faith of the relocating parent. The Court referred to a sociological study in this area which set forth eight additional factors, depending upon the situation of the child: age of the child; resources, needs, and temperament of the child; geographic distance between parents; recency of the separation; stability of the custodial parent; involvement of the non-custodial parent in the child’s life; level of emotional support of same; and extent of conflict between the parents. The Court noted that, unlike some other jurisdictions, the statutory law in the District requires both parents, not just the relocating parent, to demonstrate good faith in their respective motives. Neither child being old enough to make a valid choice as to custodial parent, the Court granted joint custody, which is the rebuttable presumption under D.C. law, approved the Wife’ move with the children to New Jersey (temporarily granted by a previous Judge on the case), and appointed a “parenting coordinator” to resolve any substantial disputes between the parents as to visitation. The chief reason for making the Wife the custodial parent was because she had always been more involved in the children’s upbringing than the Husband. The Court also found her to be psychologically stable, while the Husband showed signs of depression and paranoia and had a habit of tardiness in picking up and dropping off the children. This disparity of mental health constituted “a significant differential in the parties’ parenting effectiveness,” the Court found. In addition, the Wife’s new job provided additional financial security for the children above and beyond the Husband’s not insignificant contribution, although there was a major “offset” of $500,000 of debt shared by the parties. These factors led the Court to finalize approval of the Wife’s move to New Jersey on a permanent basis, particularly in view of the child care assistance to be afforded there by the children’s grandmother and aunt. The Court was not persuaded by the Husband’s argument that the real reason for the Wife’s intent to relocate was to marginalize his involvement with the children. It noted that she had diligently pursued employment in the television broadcast field in a constricting D.C. market and had finally found a significant opportunity in New York City, all without any ulterior motives. At the same time, the Court adjured her concerning her continuing extreme anger toward the Husband and her repeated “venomous, belittling comments to him and others concerning his perceived inadequacies in all respects of his life,” all of which were joined in by her mother. The Court found this conduct to be needlessly “alienating” and required assurances that it would cease. The Court was prepared to impose a visitation schedule which would provide the Husband with overnight access with the children for at least 104 days a year. In lieu thereof, the Court gave the parents an opportunity agree on one of their own and ordered a hearing at which to discuss the matter.
REDEMPTION MOOT WHERE SALE WAS VOID AB INITIO / CAVEAT EMPTOR / EQUITABLE ESTOPPEL
Précis: In a rare case of tightly-reasoned, highly refined, and scholarly opinions at both levels, this is a review by an Associate Judge of the Superior Court of the decision of a Magistrate Judge of that Court regarding a tax sale. The standard of review is whether there were errors of law or whether that the judgment is plainly wrong and without evidence to support it. In September of 2008, Plaintiff purchased a tax sale certificate for a residential lot in the 4300 block of 12th Street, NE. Several months later, however, the District informed the purchaser that the back taxes had actually been paid in full the day before the tax sale, which made it void ab initio, and eventually refunded the Plaintiff’s $9,343 purchase money. A year later the Plaintiff filed this suit to foreclose the redemption on the property, to recover interest on the purchase money, and for attorney’s fees. The Trial Court ruled that the District has the option to cancel a tax sale but in so doing it “is not a redeeming party when it cancels a sale.” It denied the request and dismissed the case. Plaintiff filed a Petition for Review, contending that error occurred in failing to properly interpret applicable regulations, misapplying the principle of caveat emptor, denying a claim of equitable estoppel, and denying attorney’s fees. The Reviewing Judge noted that the case law holds that a purchaser of property in a tax foreclosure sale “assumes the risks involved and has no remedy against the taxing authorities.” Among those risks is a legal finding that the property had been put up for sale in error. The Reviewing Court found that a void sale leaves nothing to redeem and, perforce, nothing to purchase and consequently nothing to cancel. Even were it otherwise, legal fees cannot be awarded because the pertinent regulation only allows for them in cases where the District does cancel such a sale, when it redeems property, or when the Court sets aside a judgment -- none of which occurred here. Nothing in the statute addresses property which should not have been sold in the first place and such a property owner therefore has nothing to redeem, thus giving rise to no cause of action by the purchaser to foreclose redemption. The Reviewing Court also agreed with the Trial Judge that the principle of caveat emptor is alive and well and applies to this case. While the Court also agreed that the statute must be “liberally construed as remedial legislation to encourage foreclosure of the right of redemption” in such sales, it has no application to property that was not actually in arrears at the time of the tax sale. Finally, the Court rejected the purchaser’s equitable estoppel argument, which was based on the failure to notify him of the invalidity of the sale until ten months after it occurred and its reliance thereon. The Court agreed with the Trial Judge’s conclusion that “it is the actual lack of any actionable claim … and not the denial … of the existence of an underlying tax deficiency, which requires that the Plaintiff’s case be dismissed.” The Trial Court ruled, and the Reviewing Court affirmed, that the statute relied upon makes no provision for such a suit and statutory jurisdiction did not lie thereunder. Thus, the Trial Judge did not find that the purchaser had no claim at all, but simply that it must be pursued in a separate suit.