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Justice Dirk Sandefur’s majority opinion (jointed by Justices Laurie McKinnon, Beth Baker, and Ingrid Gustafson) in State v. Pelletier, decided Oct. 6 but just posted on Westlaw, involved a classic he-said/she-said dispute in a rape case. Both the defendant and the alleged victim agreed that they had sex, but disagreed about consent. In the process, defendant claimed that he wasn’t the kind of man who would have sex with a woman without her consent:

At trial, Pelletier testified … that M.V. was fully conscious throughout their sexual encounter and that it was completely consensual. Upon acknowledging to defense counsel that some of the details he gave to police in his post-arrest interrogation were not entirely accurate or consistent with his trial testimony, Pelletier explained: “I think—because of being surrounded at my house unexpectedly by the U.S. Marshals, … I know it was because of being slandered and charged with this charge because it’s … one of the worst things that a man can get charged with. And I’m just not that kind of guy. I would never do that to a female. So it was kind of … disturbing.”

On the record outside the presence of the jury, the State subsequently stated its intent to cross-examine Pelletier regarding the fact that a 14-year-old female acquaintance alleged to police in 2003 that the 15-year-old Pelletier subjected her to sexual intercourse without consent. The SIWC [sexual intercourse without consent] allegedly occurred after the two had engaged in consensual sexual foreplay and Pelletier ignored her command to go no further.

The State asserted that the mere fact of the 2003 allegation was relevant to rebut his testimony on direct that he was not the kind of person who would engage in non-consensual sexual intercourse and “would never do that to a female.” The State reasoned: “He put his character at issue and said that he was not the kind of person that would engage in this kind of offense. It is basically the whole defense. So it’s absolutely probative of the issue.”

Over Pelletier’s relevance and prejudice objections, the District Court ruled his testimony that he was “not that kind of guy” and “would never do that to a female” put his good character at issue, thereby opening the door under M. R. Evid. 404(a)(1) to cross-examination regarding the 2003 allegation for the purpose of rebutting his good character testimony….

The majority concluded this evidence shouldn’t have been admitted. The evidence here was “character evidence”—”[e]vidence regarding [a] [person]’s general personality traits or propensities, [whether] of a praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community.” Such evidence is generally inadmissible “for the purpose of proving that the person acted in ‘conform[ance] therewith on a particular occasion,'” but is admissible when a defendant claims “a pertinent good character trait inconsistent with the alleged offense.” “However, by doing so, the defendant thereby ‘opens the door’ for the State to present otherwise inadmissible cross-examination or extrinsic evidence regarding specific instances of prior conduct relevant to impeach or rebut the subject good character testimony.”

Here, the court agreed that the defendant had opened the door for the evidence about the 2003 allegation—but concluded that, under the circumstances, its relevance was very slight, and substantially outweighed by the possibility of unfair prejudice:

[T]he unsubstantiated 2003 SIWC allegation would arguably have had at least some probative value to rebut Pelletier’s self-serving good character testimony under the particular circumstances in this case if in fact true. However, the truth of the 15-year-old allegation was not ascertainable without conducting a distracting mini-trial for that purpose within the larger trial of the charged offense…. [T]he unsubstantiated 2003 allegation thus had no non-speculative probative value for the offered purpose of rebutting his asserted good character.

Further, while generally going only to the weight of evidence rather than its admissibility, remoteness in time may nonetheless, depending on the nature of the evidence and purpose offered, diminish the probative value of other acts evidence on Rule 403 balancing. Here, taking the 2003 allegation as true, arguendo, the prior incident occurred when Pelletier was a 15-year-old adolescent rather than the mature 30-year-old adult he was at the time of the charged incident in 2018. The significant difference in maturity level between a 15-year-old adolescent and a 30-year-old adult at least significantly diminished any probative value that the 2003 allegation might otherwise have had, if taken as true, as propensity evidence of Pelletier’s character in 2018….

On the other side of the Rule 403 balance, prior bad acts evidence is highly prejudicial by nature due to the great risk that it will emotionally provoke the jury to desire to punish the defendant for prior bad conduct or, at least, give the prior bad acts evidence undue weight over the actual case-specific evidence of guilt or innocence centrally at issue. Here, the inherent danger that the jury would give the prior bad acts evidence undue weight over the actual case-specific evidence of guilt or innocence was particularly acute due to the largely, if not exclusively, he-said/she-said nature of the evidence and the fact that the ultimate determination of Pelletier’s guilt or innocence thus depended on jury assessment of the relative credibility of the principals’ starkly conflicting accounts of the disputed events.

Justice James Rice disagreed:

A defendant should not be able to proclaim his virtuous character is being slandered by the charges with impunity, in the face of appropriate evidence to the contrary. Here, the Court permits Pelletier on re-trial to freely pontificate about his being “slandered” by the charges because he would “never” commit such an act, knowing he is insulated from the State’s rebuttal of his testimony by reference to the prior investigation into past similar conduct.

As for the potential for a “mini-trial,” while perhaps not preferable, it is not barred as a matter of law, and a district court will well understand that potential when determining to admit the evidence. Pelletier elected to pursue a character defense, and had multiple options in response to the State’s question: he could have objected to the sufficiency of the foundation; elected not to answer the question under Rule 608 (character testimony by the accused “does not operate as a waiver of the witness’ privilege against self-incrimination”); contested the validity of the report; or emphasized that he had been cleared in the investigation.

All of these, including the time necessary to contest the validity of the prior bad act, are superior to permitting a litigant to offer a character defense that is shielded from relevant rebuttal evidence.

For those who are interested, here are more details on the facts of the criminal case (not the 2003 incident):

By Information filed August 23, 2017, the State charged Pelletier with subjecting a 20-year-old female (M.V.) to SIWC in his downtown Missoula apartment on July 6, 2017. Prior to the alleged offense, M.V., her boyfriend, a girlfriend, and a female cousin were drinking “Fireball” whiskey from a bottle at Caras Park in Missoula around 11:00 at night. Extremely intoxicated following several “giant swigs” of whiskey, M.V. walked with her girlfriend down to the bank of the Clark Fork River to put their feet in the water. Fully clothed, M.V. waded out further and later came out soaking wet from head to toe. When the group started back to the tent area of the park, M.V. ran ahead and was not present when the others arrived. After searching for several hours in downtown Missoula, they were unable to locate her.

At some point around or after midnight, Pelletier was on the sidewalk outside his downtown apartment when he heard somebody vomiting in the city parking garage across the street. He later found M.V. vomiting in the parking garage stairwell and asked if she needed assistance. He recalled that she declined his initial offer of assistance but ultimately accepted a subsequent offer to come over to his apartment for some food and water to help sober up. After walking over to Pelletier’s apartment, M.V. showered and, according to his account, drank some water and had something to eat. The accounts of M.V. and Pelletier varied sharply from there, but both agree that sexual intercourse eventually occurred.

At trial, M.V. testified that she had little or no recollection of what happened after she left the park. She said that her next recollection was waking up confused in a strange apartment with an unknown man on top of her with his penis in her vagina. She testified that she then passed out and had no further recollection until the next morning when she was sitting on a bed in her panties and bra, with a naked man standing in front of her trying to put his penis in her mouth. She testified that she immediately pushed him away and that he became “flustered” and “panicked.” She said she then asked who he was, where she was, how she got there, and where her clothes were. She testified that Pelletier told her that he found her in the parking garage covered in vomit and that he walked her to his apartment to help. She said that he then retrieved her clothes and she found her pants to be soaking wet and her sweater covered in vomit.

M.V. testified that, at that point, she was still confused, scared, without her cell phone, and told Pelletier she needed to leave to go to work. She said that he offered to walk her to the bus station and that she consented because she was afraid to say no. She then walked with him to the nearby station where he wrote his telephone number on her arm and bent in to hug her goodbye. She recalled not wanting him to touch her, but politely reciprocating with one arm. She further explained: “I was confused at the time, and I didn’t know what was going on and so I thought what had happened, like, was my fault, and that I wanted it to happen.”

She said she just wanted to go home and got on the bus with the feeling that she was in “a bad dream.” Upon arriving at her apartment, M.V. told her roommate that she had just been raped. At 8:33 a.m., she sent a text message to the girlfriend who was with her at Caras Park the night before. The text stated that she was raped, could not recall what happened, and asked the friend what happened.

Later that day at her apartment, M.V. discussed the events of the night before with her boyfriend and the friend who was with them. At her boyfriend’s urging, she accompanied him to the police station around 5:00 p.m. to report the alleged rape. After taking her report, a police officer took M.V. to a third-party sexual assault examiner. At trial, the examiner reported observing tenderness and redness about M.V.’s vulva—conditions often indicative of forced penetration, but not necessarily inconsistent with consensual intercourse. Subsequent DNA analysis of a vaginal swab taken from M.V., and a saliva swab later obtained from Pelletier, confirmed the presence of his semen in her vagina the day after the incident.

Upon subsequent police inquiry, Pelletier admitted that he had sexual intercourse with M.V. but asserted that it was consensual. He initially asserted that she initiated the sex by kissing him and that he sought and obtained her consent before engaging in intercourse. Later in the interview, however, he inconsistently stated that he awoke in the night with M.V. on top of him engaged in intercourse. At trial he testified that, after having something to eat and drink at his apartment, M.V. was “flirting” with him before laying-down on his bed in her bra and panties and passing out. He said that he covered her with a comforter and got into bed with her and went to sleep. He testified that, after waking in the morning, they briefly spoke which led to kissing and then consensual intercourse. He said he later walked her to the bus station “to be a gentleman” and wrote his number on her arm, but did not hear from her….

 

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World’s worst superhero. pic.twitter.com/gkjElEVW6n

— John pitchford???? (@Johnnypapa64) August 1, 2020

Thanks to Prof. Victor Mair (Language Log) for the pointer.

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The rest of the opinion is interesting, too; from State v. Bianco, decided this week by the Minnesota Court of Appeals, in an opinion by Judge Frisch (joined by Judges Johnson and Reyes):

Appellant Quintin Isaiah Bianco was formerly in a relationship with victim’s daughter, who is under victim’s guardianship. Victim petitioned for a harassment restraining order (HRO) following escalating incidents of harassment by Bianco. On August 17, 2018, the district court issued an HRO prohibiting Bianco from (1) harassing victim; (2) having direct or indirect contact with victim; or (3) “mak[ing] false or defamatory statements about [victim], including to the public, to [victim’s] employer, or on-line.”

Between February 10, 2019, and March 25, 2019, multiple posts containing various allegations about victim originated from Bianco’s Facebook account. On March 25, 2019, Bianco called social services alleging that victim abused her daughter and denied her daughter medical care.

The state charged Bianco with violation of the HRO. Bianco entered into a plea agreement, and the district court held a plea hearing. At the hearing, the state attempted to elicit sworn testimony from Bianco to establish a factual basis for the offense. When Bianco denied certain facts, the district court took over questioning of Bianco, accepted his plea, and adjudicated him guilty. Bianco now appeals and seeks reversal of his conviction, arguing that the district court should not have accepted his guilty plea because the facts to which he admitted do not establish that he violated the HRO….

To be constitutionally valid [under Minnesota law], a guilty plea must be accurate, voluntary, and intelligent. A guilty plea is inaccurate if it is not supported by a proper factual basis…. When a defendant “makes statements that negate an essential element of the charged crime,” the plea is inadequate “because such statements are inconsistent with a plea of guilty.” …

Bianco argues that he did not admit to knowingly making false statements or prompting third-party contact by reporting victim to social services. The state responds that Bianco’s report to social services violated the HRO’s prohibition against direct or indirect contact with victim and making false statements.

At the plea hearing, Bianco testified that he called social services at the request of victim’s daughter to report alleged abuse. Bianco maintained that he had reason to believe the allegations were true when he made the report.

We have never held that a report of alleged illegal activity may constitute indirect contact in violation of an HRO. Rather, such a report is presumptively valid when the report is objectively reasonable and made through the proper channels. To overcome the presumption, a district court must find that the defendant acted with an improper intent. Here, Bianco reported domestic and child abuse, implicating public-safety and child-welfare concerns. The plea colloquy does not establish that Bianco acted with improper intent, and the district court did not make such a finding. Accordingly, the testimony at the plea hearing did not establish that Bianco’s report to social services amounted to indirect contact or a false statement in violation of the HRO….

The state next argues that Bianco admitted to posting false statements about victim on Facebook in violation of the HRO. The HRO prohibited Bianco from “mak[ing] false … statements about [victim], including to the public … or on-line.” Bianco argues that, while he admitted to posting certain statements about victim on Facebook, he did not admit that he knew that any of those statements were false at the time he posted them. Bianco also references his testimony that his Facebook account was hacked and that he did not remember posting particular comments about victim…..

The transcript shows that—despite repeated efforts of the state and the district court to elicit a factual basis from Bianco to substantiate his guilty plea—Bianco clearly, expressly, and repeatedly denied posting statements that he knew to be false. Bianco denied authoring many of the posts. As to the posts that he admitted to writing, Bianco testified that his posts were based on what he believed to be truthful information.

Although Bianco admitted that he should not have posted statements on Facebook that he did not know to be true—and he further admitted that he was unaware whether some of the information was true at the time—such admissions do not amount to a violation of the HRO, which only prohibits Bianco from making “false or defamatory” statements….

{Citing State v. Winchell (Minn. 1985), the state argues that Bianco attempted to plead “not very guilty.” But … [t]here, the defendant admitted to the facts necessary to support his guilty plea, only challenging facts relevant to sentencing.}

The state alternatively argues that Bianco admitted to making defamatory statements about victim. While the HRO prohibits false or defamatory statements, Bianco did not admit to facts showing that he made defamatory statements. Criminal defamation requires knowledge of the false and defamatory character of the statement. See Minn. Stat. § 609.765, subd. 2 (2018) (“Whoever with knowledge of its false and defamatory character … communicates any false and defamatory matter to a third person … is guilty of criminal defamation ….” (emphasis added)). As set forth herein, Bianco did not admit that he knew his statements were false at the time he made them.

Because Bianco did not admit the facts that establish a violation of the HRO, we reverse and remand to allow Bianco to withdraw his plea.

 

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With the presidential election now just over two weeks away, President Donald Trump has mounted a frantic effort to ensure America’s farmers, a key Trump voting bloc, will support his flagging re-election campaign. In short, he’s shoving piles of cash their way.

The New York Times details the “gush of funds” Trump has promised U.S. farmers—with more on the way. Some say total farm subsidies could top $40 billion this year. The Times says the figure may be as high as $46 billion. Either figure would be a record.

Generally, it appears Trump may see this sort of “massive pre-election stimulus” as his best hope for reelection.

Critics have seized on the manner in which the Trump administration is subsidizing farmers—mostly outside of the traditional (though also lousy) programs funded under the five-year Farm Bill. 

“[T]he bulk of USDA payments to farmers since 2017 have flowed through stop-gap programs created by the Trump administration, with payment limits far larger than those that apply to the traditional farm program,” Successful Farming reported in August.

The combination of farm subsidies included in the current Farm Bill and subsidies doled out under Trump’s executive order means, the Times reports, that two out of every five dollars American farmers receive this year will come directly from taxpayers.

Critics, including many Democrats, argue the funds are being doled out as political favors. They appear to have a point. Last month, for example, during an election rally in Wisconsin, Trump announced additional payments to farmers totaling $13 billion.

Non-partisan observers have also labeled them political handouts. “The Government Accountability Office found last month that $14.5 billion of farm aid in 2019 had been handed out with politics in mind,” The Week reports. The Times, citing the same GAO report, also highlighted by some Democrats, shows farm subsidies last year appeared to be directed to “big farms in the Midwest and southern states,” mirroring at least some segments of Trump’s farm base.

That same base has been hit hard by tariffs championed by Trump. In 2018, I predicted (as did many others) that Trump’s international trade tariffs would spur retaliatory tariffs and harm U.S. farmers and consumers in the process. They did just that.

But because Trump’s tariffs hurt U.S. farmers, and because he wants them to vote for him again, he’s sending them cash. That cash even has a name. Last year, one farmer NPR food-policy writer Dan Charles spoke with says he and his fellow farmers have taken to referring to the tariff-induced subsidies as “Trump money.”

“The U.S. Department of Agriculture simply sent [the farmer] a check to compensate him for the low prices resulting from the trade war,” Charles explains.

Most of Trump’s subsidies have gone to large producers.

“Despite the record amount of farm welfare payments doled out by this administration, the smaller struggling family farmers get next to nothing while wealthy landowners and massive, highly profitable agribusiness hoover up most of the federal dollars,” says Don Carr, a senior advisor with the Environmental Working Group, in an email to me this week. “I’m old enough to remember when a Minnesota millionaire qualifying for a puny food stamp benefit was a scandal, yet few feathers get ruffled when rich land barons collect million-dollar government welfare checks.”

All of these payments are wrongheaded and unnecessary—whether to big or small producers—as I detail in my book, Biting the Hands that Feed Us.

In a Chicago Tribune op-ed this week, Wisconsin farmer and advocate Danielle Endvick explains that while the record farm subsidies are “deeply appreciated,” taking buckets of “Trump money”—she notes federal farm payments have “nearly tripled since 2017″— “feels just a little bit dirty” during the election season.

She’s right. Everything feels dirty during the election season. But Trump’s taxpayer handouts to farmers just feels a little bit dirtier.

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10/17/1862: Justice David Davis takes oath.

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During his July eulogy for Rep. John Lewis (D–Ga.), a leading figure in the civil rights movement, former President Barack Obama expressed support for eliminating the Senate filibuster, which he called a “Jim Crow relic.” That position contradicted the one Obama took as a senator in a chamber controlled by Republicans, and his historical framing was more than a little misleading.

In its current form, the filibuster prevents a vote on legislation without 60 votes to cut off debate. The maneuver, which was accidentally authorized by a rule change the Senate approved in 1806, was first used in 1837 during the controversy over the Second Bank of the United States. It has been deployed many times since for reasons having nothing to do with government-enforced white supremacy.

Segregationists did use the filibuster to oppose civil rights legislation in the 1950s and ’60s. But just as the principle of federalism does not qualify as a “Jim Crow relic” simply because segregationists invoked it, the filibuster is not inherently a tool of oppression simply because they found it useful. Like other restraints on the majority’s will—including those mandated by the Constitution, such as requiring bicameral approval of legislation and the president’s assent in the absence of a congressional supermajority—the filibuster is an ideologically neutral obstacle that makes it harder to pass laws.

When they are in the majority, senators may complain that the filibuster is undemocratic. But the same could be said of many constitutional provisions that prevent a legislative majority from doing whatever it wants, including the restrictions imposed by the Bill of Rights, not to mention the basic principle that Congress may exercise only those powers it has been explicitly granted.

Senators have used the filibuster for causes as varied as resisting U.S. involvement in World War I, protesting a presidential policy of “targeted killing” by drone, and opposing the extension of federal tax cuts. Both Democrats and Republicans have used or threatened filibusters to block the nominations of judges whose records they found alarming.

That last option was largely foreclosed in 2013, when a Democrat-controlled Senate, frustrated by Republican opposition to Obama’s judicial picks, approved a rule that allowed a simple majority to end debate on almost all presidential nominations. An exception for Supreme Court justices was eliminated four years later, after Republicans regained control of the Senate in 2014 and Donald Trump was elected president in 2016.

Majority Leader Harry Reid (D–Nev.), who had opposed new filibuster limits as a threat to venerable Senate norms when George W. Bush was president and Republicans ran the Senate, switched positions in 2013. So did Minority Leader Mitch McConnell (R–Ky.), who as the majority whip during the Bush administration threatened to make the rule change that Reid was then resisting.

McConnell warned Democrats they would regret their shortsighted move. And presumably they did once McConnell, converting again, greased the skids for Trump’s Supreme Court nominees and the president began reshaping the federal judiciary. As the Cato Institute’s Gene Healy noted in 2013, “Serious political movements shouldn’t try to knock down all the barriers to power whenever they temporarily enjoy it, because nothing is permanent in politics save the drive for more federal power, and the weapons you forge may someday be detonated by the other side.”

When politicians are in the mood to defend filibusters (i.e., when their party is not in charge of the Senate), they often say the tactic helps ensure that the minority’s views receive adequate consideration as legislation is crafted. Former Vice President Joe Biden, who served in the Senate for 36 years, used to think so. But as he contemplated a victory over Trump that looked increasingly likely this summer, he decided it might be time to remove this impediment to presidential agendas. “It’s going to depend on how obstreperous [Republicans] become,” he said.

These filibuster flip-flops could be seen as evidence that the time-honored tradition is nothing more than a tricky maneuver that members of both major parties praise when it’s convenient and condemn when it’s not. But the relevant question is whether that tricky maneuver, on balance, gives us better or worse government. When you think about the gratuitous, pernicious, and blatantly unconstitutional legislation that Congress manages to pass even when the filibuster option is available, it is hard to imagine that eliminating this obstacle would improve the situation.

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