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United States v. Harvey

United States District Court, S.D. Mississippi, Northern Division

September 10, 2019

UNITED STATES OF AMERICA
v.
TOMMY JOE HARVEY

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE

         The Government says Defendant Tommy Harvey, while serving as Simpson County Chancery Court Clerk, violated 18 U.S.C. § 242 when he pepper-sprayed victim A.R. outside the courthouse. Section 242 prohibits anyone acting “under color of any law” from “willfully” depriving another “of any rights, privileges, or immunities secured or protected by the Constitution.” According to the Government, the pepper-spraying incident violated A.R.'s Fourth Amendment right to be free from excessive force. The parties have filed four pre-trial motions, and the Court rules as follows as to the first three:[1]

         I. Motions in Limine

         As summarized by the Fifth Circuit Court of Appeals:

A motion in limine is a motion made prior to trial for the purpose of prohibiting opposing counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors' minds.

O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation and quotation marks omitted). Significant here, an order granting a motion in limine does not preclude the party sponsoring the evidence from revisiting the issue at trial. But that party must raise the issue outside the jury's presence. See El-Bawab v. Jackson State Univ., No. 3:15-CV-733-DPJ-FKB, 2018 WL 3715836, at *2 n.1 (S.D.Miss. Aug. 3, 2018).

         A. Government's Motion in Limine [56]

         In this motion, the Government seeks to exclude evidence related to three subjects: (1) the alleged victim's mental-health history; (2) her alcohol or drug use; and (3) presumptions regarding unavailable witnesses. The Court will address the first two issues together.

         1. Alleged Victim Characteristics

         This incident apparently occurred after A.R. attended a child-custody hearing at the courthouse. According to the Government's motion, A.R. was diagnosed with ADHD and bipolar disorder as a teenager and as recently as September 2016 received treatment for self-harm. The Government also says that at the hearing, A.R. admitted to using drugs within the last 30 days. Harvey would like to explore both issues.

         As an initial matter, the Government has not decided whether to call A.R. as a witness, so the Court must consider the impeachment and substantive value of the evidence. If A.R. does testify, then her credibility becomes an issue. And “a defendant has ‘the right to attempt to challenge [a witness's] credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which [that witness] was attempting to testify.'” United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 2001) (quoting United States v. Partin, 493 F.2d 750, 763 (5th Cir. 1974)). It is therefore error to reject testimony that speaks to a witness's “ability to comprehend, know, and correctly relate the truth.” Id.; see also United States v. Wade, 356 Fed.Appx. 704, 709 (5th Cir. 2009) (applying same test).

         But not all mental illnesses cast doubt on the witness's ability to testify accurately. For example, the witness in Jimenez suffered from depression and hyperactivity-conditions very similar to those alleged in this case. The trial court excluded the evidence, and the Fifth Circuit affirmed because the conditions failed to establish that the witness “suffered from an impairment affecting his ability to comprehend and tell the truth.” 256 F.3d at 344.

         In this case, the Court does not know whether A.R.'s ADHD, bipolar disorder, or depression existed during a relevant time; whether such impairments generally impede the ability to “comprehend, know, and correctly relate the truth, ” id.; or whether her symptoms were sufficiently severe to affect those issues. Yet the mention of mental illness would be substantially more prejudicial and confusing than probative in a case where the jury must determine whether the force used was necessary given the victim's conduct. So for now, the motion in limine is granted.

         As for the drug use, the Government says it “is not probative of truthfulness.” Gov't's Mot. [56] at 5 (quoting United States v. McDonald, 905 F.2d 871, 875 (5th Cir. 1990)). But McDonald addressed “past drug use” offered as character evidence. 905 F.2d at 875 (citing Fed.R.Evid. 608(b)) (emphasis added). Whereas intoxication during relevant events or when testifying at trial would impact credibility. See, e.g., United States v. Garner, 581 F.2d 481, 485 (5th Cir. 1978) (explaining that drug use by witness bears upon credibility). Here, A.R. apparently admitted on the day of the incident “to using drugs within the last thirty days.” Gov't's Mot. [56] at 1. That is a relatively short time period, so Harvey is entitled to cross-examine A.R. to explore whether she was ...


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