*1 honest belief that the two strikers had en- gaged in serious picket- America, misconduct while STATES UNITED
ing. on reports Based of security Plaintiff-Appellee, guards, was good there reason for Schreiber to believe these two strikers had en- GUTMAN, Phillip E. gaged throwing of rocks or other similar Defendant-Appellant. objects. reemphasize We that such miscon- duct has held by been this Circuit to be so No. 82-1844.
serious justify See, as to a discharge. e.g., Appeals, States Court United NLRB, W.J. Ruscoe v.Co. supra, F.2d Seventh Circuit. (6th Cir.1969). 12, 1983. Argued April The General Counsel had burden 10, 1984. Decided Jan. of presenting credible evidence to rebut the Rehearing En Banc Rehearing and employer’s showing of an honest belief. 9,May Denied 1984. the present case ALJ stated that employer May “failed establish the em As Amended ployees engaged had in serious strike mis
conduct.” After the employer had estab
lished a for an basis honest belief that the
employees engaged in serious miscon
duct, proof the burden of was on the Gener
al Counsel to establish that the employees
did not participate in such conduct. The
statements of the AU knew, that for all
Pinkston could have piece thrown a of sty
rofoam car, at Williams’ two
strikers been some “lofting” ob
jects, pebbles”, “possibly legitimate are not
inferences to be drawn from the evidence.
We conclude the ALJ and the Board
erred in their allocation of the burden of
proof. This further substantiates con-
clusion that the decision of the Board
supported by substantial evidence
record considered as a whole.
Enforcement of the order of the Board is
denied. No costs are taxed. parties
will bear their own costs in this Court. *2 Edwards,
check was sent to who then sent checks to Gutman and $333 Gardner. deposited his checks in a personal rather account than the account of his John Powers Crowley, Cotsirilos & Crow law partnership, although his defense Ltd., Ill., ley, Chicago, for defendant-appel *3 trial was that money the had been payment lant. legal for services for Association. Darst, Richard L. Chief Deputy U.S. Odom had first manifested mental illness Atty., Ind., Indianapolis, for plaintiff-appel- in 1944 while in the armed services. In lee. 1981, January thirteen months before the trial, start COFFEY, apparently Before of and POSNER and as a result Circuit Judges, FAIRCHILD, investigation and which led to the Senior Circuit indict- Judge. ments, he had been hospitalized for depres- sion. reported One doctor at that time that
POSNER, Judge. Circuit “it was obvious is de- highly Odom] [that Gutman, This appeal by Phillip pressed and for- has some psychotic thought dis- president mer pro order, tern of the Indiana in Sen- addition the difficulty he has in ate, from his conviction for using organizing relevant,” offi- being another position cial to extort money in violation Odom “displayed very para- definite ” Act, 1951, Hobbs requires U.S.C. noid ideas. ... One of reports § also us to states, consider several however, of the district court’s “His thinking is in clear procedural rulings. events, terms of historical regards but in events in the past year he does not choose The case grows out of the efforts of the to speak openly about them. He does admit Association, Indiana Railroad an association that he is in type some of difficulty.” Indiana, railroads operating to get Odom was discharged but February 1981 Indiana’s “full crew” repealed. law In 1972 taking told to continue antipsychotic and the Indiana Senate passed a bill to this antidepressant drugs. “The is progress effect which became law. According to guardedly rehospi- favorable.” But he was Odom, Howard the Association’s executive talized a month later after attempting to director a key government witness at strangle wife, and discharged a month trial, in Gutman’s 1973 Senator Gutman had after that with instructions to keep taking told him that the Association treat- During hospitalization, medicine. Edwards, ed Senator the sponsor bill, reported doctor that Odom “was able to right, and that Odom should see another give a relatively complete me and sensible senator, Gardner, influential about making history, although appeared quite his manner Gardner, amends. Odom went to see who sour, mildly irritable depressed told him that all three Gutman, senators — throughout.... significant No evidence is Edwards, and Gardner —had worked hard seen a major in reality breakdown test- for the passage of expected the bill and ing, judgment progress thought, [or?] something $1,000 in return —to wit a month ordinary and his capacity for conventional for five years, to be split among three thinking unimpaired.” But a told doctor senators. implication The lawyer: “it is will my opinion you payments precondition were a to the sena- have considerable him difficulty getting tors’ assisting get railroads to favorable to relate openly satisfactorily in order legislation future. payments you to assist in his own defense.” were made from 1973 to 1976 and formed the basis of the December, indictments of three two months trial before the trial; (Gardner senators. died before begin, Ed- was to Gutman’s counsel for moved pleaded wards guilty shortly after the given be- order Odom be a psychiatric trial, ginning of in which he being was a examination before tes- permitted to Gutman.) $1,000 with motion, codefendant Each tify. judge The district denied the sub- testify a witness to unless he pretrial motion for allow along Gutman’s testify. hearing competence mits to a examination should challenges these appeal Gutman’s both of See, e.g., United sparingly. exercised denials. Raineri, 702, v. (7th States 670 F.2d v. Roach, United States Cir.1982); 590 F.2d insanity is no Although as such United 181, Cir.1979); 9 (5th 185-86 and n. witness, longer ground disqualifying Heinlein, States 490 F.2d 730-31 see Fed.R.Evid. a district has (D.C.Cir.1973). unpleasant enough It power, duty, and in an case the appropriate subject in a testify public hearing to hold a to determine whether a being witness should not be without also asked allowed cross-examination insanity because has made him incapable to submit
testifying in a
fashion. But as
competent
spread
on the
results of which will
*4
procedure
with most issues of trial
we shall
open
disqualify you,
in
or
record
to
not
un
judge’s
reverse the
determination
your
spice up
least
cross-examination.
less we have a clear conviction that he
may
And
al-
privacy
while Howard Odom’s
erred. We do not have that conviction
hopelessly compromised by
ready have been
(a
here. Even if we assume
matter on
the
government’s having
the
turned over to
unclear)
which the record is
that Gutman in
(pursuant
guilty-plea
defense
to Odom’s
moving
competency hearing
a
for Odom
reports on
agreement)
seven psychiatric
put
the
all
judge
before
the
him,
placed
no
on their use
with
restrictions
reports from which we
we do
quoted,
the
arguing
in cross-examination or in
not
reports
think those
created such serious
that
had
jury, this also meant
the defense
doubt as Odom’s
as to com
use
of
ammunition to
plenty
pel
grant
hearing
the
a
judge
on the
Odom,
against
and hence that Odom’s men-
question. That
had
Odom had
bouts of
the
tal condition was not concealed from
serious mental illness in the
before the
year
fact,
jury.
reports
a
were
As matter of
the
judge
was beyond question, but
the
read in toto jury,
which thus knew
was
to conclude
the reports
entitled
that
that
a
of
history
Odom had
serious mental
taken as a
suggest
whole did not
that Odom
hospitalization
illness and that his latest
incapable
was
telling
of
the truth or of
under bizarre circumstances
occurred
appreciating
significance
the
his
of
oath as
nine
a
months before the trial. And that
a witness.
areWe
reluctant
the
open
mentally ill
person may give testimony
doors to sanity hearings for witnesses.
(though
is false
he
believe it to be
There
also no
that the
question
district
true)
possibility
that a
jury
should
judge could have conditioned Odom’s testi-
capable
understanding
making ap-
of
fying
agreeing
on his
to take a psychiatric
propriate
argues,
for.
allowances
Gutman
of
the results
which would be
moreover,
“inco-
testimony
that Odom’s
was
available
Gutman’s
for use
lawyer
in
so,
herent.”
If
have dis-
jury would
impeaching
Odom on
stand. The rule
counted it.
If a
takes the stand and
lunatic
allowing
the insane to
assumes that
it
gibberish,
jury
ignore
babbles
will
jurors are
capable
evaluating
witness’s
and the
harmed. Fi-
defendant will
light
in
of the fact
that he is
nally,
parts
of Odom’s evidence that
insane, cf. Advisory Committee's Note to
points
showing
incoher-
601;
Rule
it may
seem to follow that
Gutman,
ence could not have hurt
as when
the jury,
evaluating
to assist
it
such
said,
Odom
“I have
lying
been
about
testimony, should have the
of an
results
truth,”
and I want to
when
thing
tell
up-to-date psychiatric
pro-
examination of a
said,
Jury
he
“The first
of the Grand
part
spective
given
in-
witness who has
definite
about,”
illness,
report
ques-
lied
then
few
dications of serious mental
as Odom
said, “I
had. The
later
don’t think I lied to
courts that have addressed
tions
however,
question agree,
power
Jury,
that the
now
I think
it.”
not Grand
about
argues
Gutman also
the dis
explanation
Edwards. His
was that
jury
trict
should have instructed the
awas
retainer for representing the Associa-
disregard
testimony,
Odom’s
because the
tion
various matters. The fact that he
testimony,
men
whether because Odom’s
$40,000
received
from the Association in
cause,
tal illness or
other
inter
some
was so
powerfully indicating
circumstances
it
inconsistent —so
nally
log
“incoherent” in
payoff (Gutman
was bribe or
claimed that
ical sense —that
it was
no
entitled to
payment
was for legal services rendered
We have
weight.
transcript
read
with a drainage problem,
connection
but
and do not
find
he had not
by any
been retained
degree
abnormal
of internal
inconsistency,
parties
problem)
concerned
tended
bearing in mind that
was in the
explanation
to discredit
monthly
uncomfortable
ille
position
testifying to
he
payments
charged
was
with having
gal conduct to which he had been a party.
extorted,
therefore relevant to the
regard
meeting
to the initial
with the
specific
against
extortion charge
him.
It
monthly
three senators and to the
payments
Association,
also connected him
charge
based,
on which the
of extortion was
important
which was
because
had not
consistent,
story
though he tes
received the monthly
directly
checks
from
tified that he did not
payments
Association,
through
but
Edwards.
as extortion. Odom also testified
Relevant
evidence
other crimes is admis-
$40,000
Gutman,
payment
a payment
provided that it
sible
is clear and convincing
which was not charged as extortion but
*5
(so that
the
is not
government
tempted to
government
about which the
was allowed to
introduce
of crimes of
evidence
which the
present
(whether
anyway
evidence
innocent)
defendant
well be
and that
“other crimes” testimony
proper
was
con
is
probative
outweighs
its
value
its prejudicial
next).
sidered
His testimony
impact.
Dolliole,
United States v.
597 F.2d
payment
significant
contained a
inconsist
102,
(7th Cir.1979).
106-07
Rule
of the
403
he
ency:
repudiated
story
the
he
given
had
Federal Rules
Evidence commits the bal-
regarding
the FBI
one of the two conversa
ancing judgment
to the discretion of the
he had
tions
had about
concerning
Gutman
district
who
in a
judge,
position
is
better
payment.
But of
it
course
is common
than we
appellate judges
assess the im-
for
change
witnesses to
their
stories on
pact of
on a
jury and whose
stand;
if that were
enough
disqualify a
can
upset only
determination
therefore be
if
witness there would not be many successful
error,
has
he
made a clear
F.2d
prosecutions.
Impeachment of a witness
which we
not
judge
do
think
district
does not compel
testimony.
exclusion of his
made in this case.
$40,000
The
check that Gutman
The last issue is whether the district
received from the
he
de
again
Association
judge
hearing
explore
should have held a
in a
posited
personal
and
not
account
did
charge
jury
preju
Gutman’s
was
income,
as
report
partnership
and according
against
charge
diced
him. This
on
based
president’s
a railroad
pay
incidents,
very significant
several
none
ment was a
or
for
payoff
bribe
other assist
itself. The first is that Gutman’s codefend
ance rendered
by Gutman
the railroads.
ant, Edwards,
dock
disappeared from the
points
out that
the indictment did
shortly
jury
impaneled,
after
was
be
charge
$40,000
not
with receiving any
him
he
pleaded guilty;
though
cause
had
and
payoff
bribe or
and argues that
the intro
jury
was not
duction of
told
reason for
such evidence of another crime
disappearance
only that it should
improper
was
told
extremely prejudicial.
—was
was;
Prejudicial
speculate
jurors
it
not
the amount was
on
reason —several
greater
than Gutman
learned from radio or
re
had received from the extor
television news
tion
which
ports
for
he was tried. But it
or
headlines that
newspaper
also was
Edwards
pleaded
material. Gutman did
deny receiving
guilty.
judge
not
had
The district
a month
through
$333
from
Association
con-
jurors
they
asked
whether
could
intimidating, cf.
v.
inherently
Miller
tice
of Ed-
independently
case
sider Gutman’s
Cir.1968)
(2d
States,
425
hand,
well
mony as
as the factors listed in Rule
In the case at
in view of Odom’s
serious
psychiatric history,
questions
severe
403.”
(1)
concerning:
ability
existed
his
to accu-
Graham,
Evidence,
Handbook of Federal
rately recall
the matters about
he
added,
(1981) (emphasis
601.2 at 377-78
§
(2)
was
to testify,
capaci-
summoned
and
omitted).
footnotes
Weinstein is in accord.
ty to
and understand the
to
accept
duty
there
longer
are no
artificial
“[S]ince
to
speak truthfully.
duty,
As
the latter
it
grounds for
disqualifying
witness as
should be
out that
pointed
psychiat-
Odom’s
incompetent,
preliminary
traditional
reports
ric
document
admission that he
competency
longer
examination into
is no
conning
“has been a liar
people
and
required. But
judge
a trial
still has
years.” Additionally,
psychiatrist
Odom’s
broad
discretion to control the course
that the increase in stress
concluded
result-
(Rule 611)
trial
relevancy
and rule on
ing
appearance
grand
from his
before the
(Rules
403).
401
and
If
is
jury
enough
trigger
had been
to
his most
defined as the minimum standard of cred-
recent psychotic episode. Certainly Odom’s
permit
ibility necessary
any
to
reasonable
coupled
history
psychia-
with his
man to
put any credence in witness’s
trist’s evaluation that
increases in stress
then a
testimony,
compe-
witness must be
could
did
him
decompensate
cause
to
tent as to the matters
is
expected
he
should have raised a
reasonable doubt in
about;
testify
it is the court’s obligation mind of
trial judge
ability
about Odom’s
minimum
insure that he meets that
testify truthfully
accurately, particu-
In making
standard.
this determination
larly
greater
surrounding
under the
stress
deciding
court will still be
competen-
in-court direct and cross-examination testi-
would, however,
cy.
It
in view of the
Thus,
mony.2
contrary
cursory
anal-
cast,
way
probably
the rule is
be more
ysis
majority
they
wherein
deny
to say
accurate
the court will decide
competency hearing,
need of a
there was a
not competency but
credibility.
minimum
question concerning
serious
ability
Odom’s
requirement
This
credibility
truthfully
trig-
minimum
which should
testify
have
just
is
an immediate and careful examina-
aspect
requirement
gered
one
tion
trial
i.e.,
especially
court.3 This
probative
minimum
relevancy.
force —
true
Odom’s
because
crucial
Regardless of
the trial
terminology,
judge
the government’s
case.
may
part
exclude all or a
witness’
on
ground
that no one
In a
it
key witness situation
becomes
reasonably
could
believe the witness
imperative competency hearing
observed,
could
remembered,
com-
v.
held. As the court
United States
respect
municated
told the truth with
Crosby,
(D.C.Cir.1972),
427 ’ guilt or innocence.... The jury present case. On the contrary, there were by aided in its task the results of psy- surrounding unanswered doubts Odom’sre- examination, chiatric even when an such liability ultimately which were borne by out examination is not necessary to the See, testimony.6 e.g, his discussion of mo- judge’s determination competency. strike, Thus, tion to infra. the issues of When an examination should be ordered competence and credibility Odom’s heavily jury aid the judgment, is also a involv- favored an order a psychiatric examina- ing a balancing dangers, of need against tion, Benn, and unlike the trial court’s deni- which is committed to the discretion of justified by al cannot reference the judge.” trial countervailing indications of reliability. Illinois, Id. at Napue 1131 v. (quoting 360 In the First Circuit’srecent United States 264, 269, 1173, 1177, U.S. 79 S.Ct. 3 L.Ed.2d Hyson, v. 721 (1st F.2d 856 deci- Cir.1983) (footnotes Thus, 1217 (1959)) omitted). an sion, the court the defendant’s first denied provided would have jury the motion questioned to have the ex- witness extremely relevant evidence as to amined to determine whether he was under credibility. drugs. the influence of day On second ultimately The court in Benn determined his testimony, the court sua sponte re- such necessary an examination was not quested the witness to be examined for “strong because it found reli- indications of drug use after he had difficulty speaking ” ability prosecutrix’s of the testimony .... and had mentioned that he felt sick. The Referring Id. to these indications of relia- witness point repeatedly denied bility, the court stated: drug use. Two days after court’s re- present examining (out-
“In
quest,
case the trial court
doctor testified
that,
jury’s presence)
found that the
side the
based
his
prosecutrix demonstrated
examination,
duty
of her
understanding
tell
the witness had been under
truth
a capability
to observe and the influence of phencyclidine when he tes-
comprehensible
remember. A
narrative
tified
which had caused him be in “an
emerge
does
from sum of her testimo-
acute confusional state.” The doctor went
Also,
ny.
as the
not-
judge
cautious trial
on to
would be
explain
“state”
ed before
allowing
testify,
witness to
expected
Upon
to clear within 24 hours.
there was substantial corroboration to her
testimony,
court
receiving
request-
testimony giving extrinsic assurance of
ed
doctor to re-examine
witness to
reliability.
its
Finally,
had the
present
his
testi-
competence
determine
girl's
benefit of the
father’s
absolutely
we feel was
fy;
procedure
to her retardation to assist him.”
doctor,
in the
The
necessary
present case.
re-examination,
upon this
concluded that
Id. No such “strong indications of reliabili-
mental status was
im-
witness’s
“much
can
ty”
be found in the case at
hand.
just
proved” over his confused state
two
finding
court made no
regarding
days prior. Relating
Hyson
case
understanding
duty
to tell
bar,
Hyson
it should be noted that the fact
truth
capacity
to observe and
drug
not
remember, nor
involved
intoxication does make it
was there substantial cor-
inapposite
drug
since both
in-
testimony.
insanity
roboration Odom’s
Addition-
ally,
comprehensible
affect the
of a
directly
reliability
narrative did not
toxication
Thus,
emerge.
weighed
testimony.
witness’s
While Odom did not
the reasons which
testi-
against
appear
difficulty speaking,
an.order of
examina-
to have
confused,
mony
tion
Benn
do not exist in the
con-
simply
inconsistent and
Typically reviewing
See, e.g.,
courts which have sus-
corroborated
evidence.
other
Butler,
deny psychiatric
(D.C.Cir.
531
tained trial
decisions to
United States v.
481 F.2d
Skillman,
justified
1973);
examinations have
determination
and United
442 F.2d
their
States
great
Cir.),
denied,
questioned
(8th
ato
extent on the fact that the
cert.
404 U.S.
92
subsequently
(1971).
witness
testified
a consistent
Such is obvi
S.Ct.
30 L.Ed.2d
substantially
ously
coherent
here.
manner
case
*11
priately
psychiatric
the
of
justi-
warrant
order
a
more than
obviously
tradictory which
presents
This
examination.
having
suit
a
If the
witness
an examination.
order of
fies an
trial court
in
history
a
of
psychiatric epi-
as
severe
required
had
an examination
had
sodes. He
two breakdowns within
little to com-
Hyson,
would have
trial;
months of
psychiatric
requiring
thirteen
both
qualified
plain
since a
hospitalization,
hospitaliza-
with the
as
second
have
available
been
determination
to both
being pursuant
emergency
tion
to an
court
question
competence
of
and
the
psychiatric
order. The
evaluations of that
credibility.7
state that the increased stress
witness
rounding
sur-
foregoing analysis, I find it
the
Based on
appearance
grand
his
before the
majority can
hard
understand how the
to
enough
trigger
psychotic
jury was
to
a
examination
psychiatric
that a
conclude
episode thereby raising
possibili-
a definite
society’s
unnecessary. Mindful of our
episode
repeated
an
ty that such
would be
proven
until
presume
to
innocence
choice
otherwise,
during
addition,
testimony at trial.
In
his
place
question
I
to the ma-
the
testimony
that witness’s
at trial was con-
they would re-
jority
they believe
whether
Furthermore,
fused and inconsistent.8
his
defendants,
if,
fair trial
as criminal
ceive a
instability
transparent
mental
was so
accusing
who had
they faced an
witness
months
he
within two
mitted
more
before
failure to order an examination?
of trial
was re-com-
history mental illness and insta-
Odom’s
of
to
facility.
a mental health
What
bility,
court refused their re-
and
does majority
necessary
believe is
meaningful type of
quest
some
to obtain
it finds an
of
abuse
discretion for
psychiatric determination of
witness’s
reality
The
grasp of
at the time
trial.
cir-
question becomes whether under such
however,
majority,
The
is unrelenting.
truly say that
de-
we can
cumstances
support
they
In
of their decision
state that
required
as
fendant has received fair trial
by
psychiatric reports
had
defense
seven
Fifth Amendment.
impeach
testimony
available to
thus
Odom’s
and
majority recognizes that
the trial
they
“plen-
conclude that Gutman had
Odom’stesti-
court “could have conditioned
fying
psychiatric
ty
against
ammunition
use
to
psychiatric
agreeing
his
to
on
take
regard
quantity,
Odom.” With
to
the results of which would be
examination
true,
quality
if
be
but
relevance are
lawyer for
to Gutman’s
use
available
evidence,
evaluating
factors in
ports
these re-
They
impeaching
on the stand.”
Odom
little
were of
Gutman’s
worth.
con-
conclude, however,
have
courts that
“[t]he
cern was with
mental
state
agree
...
that the
question
addressed
testified,
time
not with mental state
testify
power not
allow witness
(the age
some nine months
recent
of the most
psychiatric
unless he submits to
examina-
psychiatric report
at the time of
sparingly.”
I
tion should
exercised
trial)
(the
years
to 38
first reference to a
agree
be exercised
power
that such
“should
psychiatric problem
reports)9 prior
in the
do
no
sparingly,” but if the facts of
case
I do
to
majority
tially depreciated
date.
not understand how the
compel
power,
of that
then
use
recognize
can fail to
the substan-
provide
justi-
circumstances
case
fying
ever
will
value
this outdated
my twenty-nine
such
order.
psychiatric
Odom's
questions
evidence
bench,
never
years on
have
observed
credibility
at the
appro-
which more
a set of circumstances
time
trial.
allowing
to continue
drugs
him
can have on
before
examination
Hyson
the effect
illustrates
7:
Hyson,
bility, EC 7-13. be appar- may depend upon should his testimony, prop- ent that: er justice public administration of in the
“A prosecutor may not interest properly ought refrain stimulate cooperative from investigation in order to avoid com- voluntary effort to establish means of ing possession into may evidence that mutual solution of the problem. A varie- case, weaken the prosecution’s indepen- ty of methods suggest agree- themselves: dent of whether disclosure to defense (a) may ment the court appoint an may required. duty the prose- impartial expert, (b) party that each may cutor is to all the acquire relevant evi- expert third, select one and the court a dence without impact its on the examination, joint (c) for that each success the prosecution.” may engage the party services of an inde- ABA Standards 3-3.11 commentary. I am pendent expert.” by thought troubled the govern- Id 143 A.2d at opposition ment’s for Gutman’s motion compelling an order undergo Odom to a C. Motion to Strike Odom’s Testimony. psychiatric examination may well have been The defendant’s final contention is that might motivated of what fear be dis- in refusing trial court erred to strike If actually covered. the govern- as not credible aas mat- motive, justice ment’s done? I am left ter of law. As noted the outset with a serious prosecution, concern that the dissent, the admissibility of evidence is a by opposing Gutman’s motion a psychi- preliminary question entrusted the dis- examination, atric come close to cretion of judge, Fed.R.Evid. *14 violating its see obligation justice is 104(a); subject such discretion being to re- government obtained on behalf of both the abuse, view for abuse. To establish and the defendant. defendant must show that the admission or Although the case law addressing this exclusion of evidence was in error and af- sparse, issue is somewhat I am not alone in rights. fected his substantial Fed.R.Evid. my cooperation conviction that de- between 103. I believe that Gutman also met this government fense and necessary, counsel is burden with respect to the trial court’s de- in circumstances such presented as those nial of his motion to strike Odom’s testimo- here, to obtain a fair result at trial. The ny- Supreme Court of New enunciated Jersey Essentially, this argument last is con- Butler, this same proposition in State 27 tinuation of the defendant’s first argument (1958). N.J. 530 govern- A.2d contends, assuming ap- in that ment, ease, in that a psychiat- had obtained peared meet minimum standard of ric examination a key witness but had competence outset, opposed the defendants’ request obtain a confusing so and contradictory that separate examination of that witness. should have been excluded as not credible addition, the trial court had only offered to aas matter of law. If evidence lacks credi- portions release those the government’s bility law, as a matter of then it is not reports which showed the doctors’ opinion relevant under Fed.R.Evid. 401 since it then regarding the witness’s competency. The does not “to tend make the existence of appellate court stated: fact that is of consequence determi- “The trial of a criminal cause a quest nation of the action more probable less justice, for truth and merely contest probable than it would be without the evi- for a advantage tactical over adver- dence.” Such evidence must be excluded. sary or for a favorable verdict irrespec- out, Fed.R.Evid. points 402. As Weinstein tive of its objective relation to the basic “the judge may part exclude all or a proceedings. When reasonable ground ground for doubt as witness’ on the person’s men- capacity reasonably tal as a no witness becomes known one could believe the witness court, to the parties observed, remembered, and to the and lives could have commu- tell would “Q you So now Okay. respect with told the truth nicated or Jury the truth? and Ber 3 Weinstein question.” event in (1982) ¶ Evidence ger, Weinstein’s 601[01] just lied is, guess, that I “A The truth (footnote omitted). preceding While the thing. about con found Weinstein’s discussion quote is what the truth is. “Q Jury Tell applicable it is competency, equally cerning I made truth “A And that testimony that mani to a to strike motion it was not them and this deal with the basis for problems fests which were bribery.” and it was not extortion contesting that witness’s previous motion all the moved to have point At this competency. $40,000 regarding evidence other crime complete examination of After a That motion was from the case. excluded conclusion come to the testimony I have later the court. Somewhat denied and that should have been stricken that it testified: direct examination Odom do reversi- so was court’s failure triaL Now, “Q when had a conversation you I cannot space ble error. Due to limitations Regional as to the with Mr. Gutman however, reprint testimony, the whole of his May Transportation Authority in adequately following excerpts I believe the say to Mr. Gutman what did support my conclusion. say to Mr. you did you what testified: On direct examination Odom Gutman? did Albert “Q In the summer FBI, Well, I told the “A I know what Dudley, President of the South a lie. but Railroad, have a conversation Shore “Q Well, Jury tell what you getting legislation you about the truth is? Regional Transportation passed for a Well, was no “A the truth is that there Authority? bribery there. Yes, “A sir. said “Q what Mr. Gutman Jury Tell What, if do? “Q you did anything, you to Mr. you and what said Darst, lying I have been “A Mr. Gutman. tell and want thing *15 guess “A I we had a conversation. don’t truth. 29th December “Q December On do “Q right. you All What did after me. you go did to the —excuse 30th Dudley you? Mr. came you go 29 did On December Well, I to see senator. “A went Department? Police Noblesville senator? “Q Which Yes, “A sir. Gutman. “A Senator —Senator “Q went to the Nobles- you And after you to him and “Q say And what did you Department Police didn’t ville say you? what did he agents FBI a conversation with have Jury, “A That’s what I told the Grand Wayne Oakes of Hawley Ronald Jury, I Mr. lied to Grand Investigation? Bureau the Federal Darst. Yes, “A sir. Well, Jury tell what
“Q you would make the “Q you did And on those dates you said and what said? Mr. Gutman Haw- following Agents statement said, Well, I I you “A can tell what but statement ley and Oakes:” [His
it’s not so. FBI followed verbatim.] Well, “Q we want the truth. You just that line of Regarding questioning same are under oath? you
understand his direct examina- point subsequent tion, testified: I I’m under oath. That’s “A understand had the “Q May you when I lied why telling you I’m about Mr. about Gutman it, conversation Mr. Darst. “Q Is that truth? Regional Transportation Author- ity, you state to Mr. Gutman did no, “A it’s the truth. I don’t — you get that you thought could some “Q tell what you Jury Would money? truth is? No, “A sir. guess “A had I the truth about “Q All right. you Did state to the— Central, for the Penn something you let’s see. Did read the docu- what he said. I don’t remember. ment I you? handed “Q you Do remember what he said? Yes, “A sir. No, “A sir. I remember what he said “Q your Does that refresh recollection? when he come in office about Yes, “A sir. the bill. “Q Jury Would state to the what you “Q you Jury? Would tell the was said that conversation? “A He said that had worked hard on bill, Just “A that we needed the and he 40,000— the bill that there peo- said he to turn his 40,000 enough, 25 wasn’t ple around. $40,000. was —that was worth “Q And you what did offer order to “Q $40,000? What was worth people turn his around? “A The bill. “A I anything. didn’t offer “Q What bill was that? “Q Did you following make state- “A RTA.” him, ment Gut- you told Mr. Then on cross-examination Odom testified: $25,- man you thought you get could “Q Did you testify your 000 for Gutman from Dudley? morning you here No, “A sir. Mr. off? ripped Dudley “Q you And the FBI did tell that? Yes, “A what I said. that’s “A Yes. Now, “Q you I believe also testified that On “Q December 29 and 30th December you lied under oath in the Grand of 1980? $40,000 Jury about this transaction? Yes, “A sir. know, “A You when I think about it “Q Now, date, you on that when talked 40,000. I didn’t lie about that talked agents, you the FBI went volun- to Mr. and that’s all there FBI, tarily you did not? to it that money. Yes, “A sir.” Well, “Q you are now that saying you However, Odom then changed mind. you were mistaken that had lied in
“Q Now, $40,- Jury? the Grand you before received that Gutman, 000 bill from Mr. your it’s “A part Jury The first of the Grand testimony today you that received— I report lied about. you no had conversation with Mr. “Q part was that? What Gutman about that bill? “A thing. About the Edwards “A I don’t —I the bill. I changed called “Q About— him changed. and had it $1,000. “A About Now, “Q one at let’s take a time. step “Q today lied here about that? You you Before received the bill from truth, No, way “A that’s the I told $40,000, Mr. you Gutman for testi- it. fied you that had had no conversa- Gutman, “Q tion with Mr. cor- Today?
rect? truth, told it way “A That’s the I I guess “A I Jury. did to that. the Grand said Mr. Gardner first Jury what Well, you did lie about “Q parts what that? about Jury? the Grand first said. what he lied the Grand “A I don’t remember “A I think I don’t about it. Jury, think now what Jury tell “Q you O.K. Can saying? don’t Mr. Gardner “Q you you reflect on it remember you more Jury? think lied Grand you Well, mon- some earnest “A wanted $1,500, right “A No.” off bat. ey, With to a letter he sent to [*] [*] [*] [*] [*] [*] employee of one of the member railroads other “Q payments Did make you Association, ex- the Indiana Railroad Gardner, Mr. Ed- Mr. Gutman or Mr. plained: wards? “Q Hender- you And didn’t inform Mr. $1,005 a for five years.” “A month son, letter, in addition on redirect he stated: Then long expenses these were incurred Now, on cross-examina- “Q you talked Edwards, payable time to Mr. ago Ed- fees Mr. legal tion about $12,000 years over a of five period receive le- wards. Mr. Edwards did per annum? Pub- work before the gal fees for his “A I did. Commission, did he lic not? Service “Q Mr. you Did lie to Henderson? Yes. “A (No “A response) he re- “Q And do remember that you that, “Q did You didn’t lie to him on $15,000, $8,000 plus plus ceived you? $5,000? Well, you, “A like I told I don’t know Yes, “A sir. Iwhy Edwards. paid Senator $5,000, course, was “Q And from the “Q why You know now? don’t $2,000, is that correct? your deducted No, “A make doesn’t sense.” “A Yes. Odom, should out pointed It talking about “Q you Is that were what addition the above inconsistencies were you when on cross-examination characterization, contrary majority’s talking legal about fees? $1,005 testify consistently did not about No, “A sir. which were substance payments very talking whén “Q you What were about charge of extortion. On direct Odom talking legal fees? you were stated: That ten-o-five.” What, “Q anything, if did Mr. Gardner “A say say and what you, you did Presumably this last an- added.) (Emphasis Mr. Gardner? $1,005 monthly payment concerns the swer Well, “A negotiating we started charges against for the basis
price payments. he characterizes Note that Gutman. legal fees. Later in his redirect payment Well, “Q tell what you Jury this character- perpetuates examination he you? Mr. said to Gardner ization. they “A He hard on said worked Now, Mr. asked “Q believe Bradford bill, and so we some negotiated conclu- on cross-examination the you payments. *17 con- you of or not sion whether “Q Did on say who had worked hard extortion, and what sidered this the bill? to him? your answer He Chip “A and Mr. Gutman and [Sena- No, sir. “A tor Edwards]. “Q And not? why “Q And told us start- you you have that gave it to him. Well, freely I ed tell the “A because negotiating. you Would
435
“Q
gave
your consent,
You
that with
The majority argues that the inconsisten-
you
did
not?
cies in Odom’s testimony were innocuous,
however, it is my position that they
“A Yes.
have
completely missed Gutman’s argument
“Q After
you
told
senators
those
since he did
argue
not
that the evidence
statements, you consented then to
should be struck merely because it was
$1,005
pay them
per month?
(as
inconsistent
Gutman
the majority states), rather
Yes,
“A
but that was
Public Ser-
for
argues
that the inconsistencies in
vice
representation.”
Commission
conjunction with the evidence of Odom’s
(Emphasis added.) After this statement mental instability made his testimony unbe-
the question becomes
any pay-
whether
lievable
aas matter of law. As the preced-
ments were made in return for legislative
ing analysis indicates, I agree.
help, or rather
they
were
merely legitimate
legal fees.12
Even if
testimony
incredible,
Odom’s
was not found
foregoing sampling
completely
on the
of
to be
Based
evidence
inconsistencies, I
com
am
significant
pursuant
more
pelled
should have been struck
to Fed.R.
lacked credi
magnitude
conclude that Odom
Evid. 403. As a
of
to
result
of
might
have
matter
law. I
bility
ap-
as a
the inconsistencies and contradictions
there been no
parent
testimony,
conclusion had
in Odom’s
very
reached this
(which in
history
it
prior
only
mental
best
was relevant
to
evidence
dicated both that
show that
from a
suffered
Gutman was
in
involved
some form of
Odom
shady
him
thought
dealings.
that caused
psychotic
disorder
One could not conclude
being
and that
from
difficulty
testimony
relevant
Odom’s
have
Gutman mis-
stress,
Jury
position (by
as his Grand
used his official
leg-
increased
such
threats of
slip
inaction)
him
back into a
a
money
caused
islative
IRA
to extort
testimony,
from the
state)
previously
or had there
psychotic mental
been
because
con-
noted
indicating
very
Thus,
on this
recent
mental
ther
tradictions
ing
issue.
view-
However,
nei
competence.
testimony
since
light
Odom’s
in the
most
case, I
conclude that
government,
cannot
favorable to the
plies
im-
merely
thereby
coherently
wrongful
testified
some indeterminate
conduct
failing
part
trial court’s error
on Gutman’s
highly prejudi-
cured the
which is
failing
competency hearing
cial in a Rule
hold a
403 sense as it
tends
While
jury
examination.
induce the
an improper
order a
to convict on
basis,
credibility
question
e.g.,
is a
normally
person
Gutman is a bad
Bradshaw,
opposed
F.2d
jury,
proof beyond
v.
719
to actual
United States
reason-
(7th Cir.1983),
every
the trial court con
able
on
921
doubt
each
element of
charged. Testimony
retain the discretion to exclude
the offense
tends
proper
tinues to
juror
if
could be
induce a
on
im-
testimony
jury
no reasonable
decision
Berger,
exactly
type
lieve
3 Weinstein and
Wein
basis
of evidence
it.
(1982). Such
intended to
excluded under 403 if the
stein’s Evidence ¶ 601[01]
here
prejudicial
tially outweighs
should have been exercised
effect of such
discretion
evidence substan-
failing
probative
erred in
the trial court
its
and therefore
value. See
Furthermore, Graham,
testimony.
Handbook
to strike
there can be
Federal Evidence
§
(1981).
no
failure
403.1 at 183-84
doubt
Our circuit has
right
held that abuse of
dard to be
strike affected a substantial
discretion is the stan-
defendant,
103(a), since Odom
used in reviewing
Fed.R.Evid.
a trial court’s
directly
balancing
probative
under
was the sole witness
an
Rule 403 of
charge
against
element of the
of extor
prejudicial
essential
value
impact.
302,
evidence
its
§
Weston,
1951—the
tion in violation of
U.S.C.
F.2d
United States
(7th Cir.1983).
position
my
to extort
opinion,
misuse of his official
I
question
do
there is no
money. Without
trial court
best,
evi
circumstantial
abused its discretion
this case. At
not believe
other
supported
indicated,
just
probative
as has
been
dence offered would
Al-
value
the evidence was minimal.
conviction.
majority
they
"any
changes
12. The
states that
do not
compared
find
to a
witness who
normal
degree
inconsistency”
story
majority attempts
abnormal
of internal
stand as the
testimony.
preceding
distinguishes
ex-
history
Odom’s
cerpts dispel
believe the
prior
do. His
mental
Furthermore,
change
story.
this conclusion.
such a “normal”
case from
do not believe that Odom’s
can
*18
issues,
if I
latter
reach these
two
even
key
issue—abuse
though it went
a
the attacks
to determine
none of
were
on the
testi-
money
to extort
position
official
—the
conviction,
alone,
suf-
standing
were
contradictory
inconsistent and
mony was
reversal,
combined
warrant
when
ficient to
additionally
was
very point and
this
a denial of
attacks rise to
level of
these
other contradictions
suspect because
Amend-
trial in violation of the Fifth
a fair
prior
testimony and
in Odom’s
found
reason,
reasons
For this
and the
ment.
Thus, when
problems.
mental
history of
above,
remand
I would reverse and
stated
testimony is
of Odom’s
probative value
the
weighed
trial.
for a new
effect
against
prejudicial
basis,
improper
becomes
inducing a decision on an
appar-
for failure
strike
abuse
REHEARING
ON PETITION FOR
ent.13
COFFEY,
whom
Judge,
Circuit
III.
FLAUM,
Judge, joins.
Circuit
foregoing analysis,
Based on the
I would
respect,
compelled to
all due
I feel
With
hold that the trial
discre-
court abused its
deny re-
this court’s
decision
dissent
hearing.
(1) failing
hearing
in:
a
tion
regarding
to conduct
ex-
In addition to the views
testify;
competence
dissent,
my
pressed
believe
(2) failing
undergo
to order
Odom to
reasoning in
recent United
court’s
allowing
psychiatric examination before
Cir.1984)
Johns,
(7th
Notes
[*] Hi
[*]
[*]
[*]
[*] noted, previously May ruling prior As 2. in his com- Gutman’s motion for a letter, psychiatrist my were, however, hearing. reports Odom’s petency stated: “it is The opinion you attorney] will have jury immediately [Odom’s prior read to verbatim getting difficulty considerable him to relate testimony. Assuming the court did not openly satisfactorily you in order to assist time, it know of their contents before this once Clearly, in his own defense.” if a can- witness reports did then become aware of openly attorney particular not matter, relate to his on a required competency hearing hold a due to testify competently regarding cannot question reports those raised substantial that matter. ability truth- fully accurately. majority question raises the of whether