Sunday, October 10, 1999


Off-duty officer's traffic anger becomes federal case

The Cincinnati Enquirer

        Road rage turned into a federal civil rights suit when a Toledo police officer appeared to retaliate against the other driver by charging her with unrelated crimes.

        N. Aliakbarkhananfjeh said she was in Ottawa Hills in 1994 when Officer Jennifer Schramm became annoyed with her driving.

        She said Officer Schramm honked, screamed and forced her to stop. She said the officer — off-duty, out of uniform, in a private car and outside her jurisdiction — came over and screamed at her, using vulgar language.

        When Ms. Aliakbarkhananfjeh refused to get out of her car, Officer Schramm drove off.

        Officer Schramm's license plate identified her, and Ms. Aliakbarkhananfjeh reported her to Toledo police.

        That's when Officer Schramm charged her with assault and criminal damaging. Later, Officer Schramm added minor traffic offenses.

        The more serious charges were dismissed, but Ms. Aliakbarkhan anfjeh pleaded guilty to the traffic charges.

        She sued Officer Schramm, saying her rights to free speech and due process were violated by the retaliatory damaging and assault charges.

        A trial judge dismissed her suit, but 6th Circuit Judges James L. Ryan, Ronald Lee Gilman and Edmund A. Sargus Jr. gave her half a loaf.

        In the 3-0 opinion, Judge Sargus said Ms. Aliakbarkhananfjeh's guilty plea to traffic offenses barred her claim for malicious prosecution.

        State and federal law allow that claim only when the accused wins in the criminal and/or traffic court.

        However, different standards control 1st Amendment claims, Judge Sargus wrote, and serious criminal charges without probable cause could have been illegal retaliation.

        If the serious misdemeanor charges “bear no factual relationship” to the traffic charges to which Ms. Aliakbarkhananfjeh admitted, there are grounds for her 1st Amendment claim of retaliation, the court ruled.

        The Toledo judge was wrong to dismiss the 1st Amendment claim, and Ms. Aliakbarkhananfjeh can pursue that case against Officer Schramm.

        Properly handled, evidence of “other acts” can show that defendants had the necessary intent to commit crimes of which they are accused.

        Improperly handled, they can violate defendants' 6th Amendment right to a fair trial.

        In 1997, a prosecutor used prejudicial, irrelevant evidence of other acts to buttress admittedly weak cases against two men accused in a Detroit cocaine conspiracy.

        The trial judge mistakenly allowed, and the 6th Circuit overturned, their convictions.

        For Kevin Link, the “other act” was a 1990 guilty plea to an unrelated 1987 cocaine offense involving different colleagues.

        Judges David A. Nelson and Karen Nelson Moore said the prosecutor failed to show its relevance and jurors were likely to conclude — improperly — that Mr. Link was guilty of the second offense because of the first.

        Without that earlier conviction, the 6th Circuit said, “the government had little evidence of Link's intent apart from the testimony of his three alleged coconspirators. We are not assured that the jury remained un- influenced by the evidence of Link's prior drug conviction.”

        For Thomas Humphrey, the “other act” involved testimony that he was involved in another, unrelated drug conspiracy with other people after the one for which he was convicted.

        Other than information from a member of the latter conspiracy, the prosecution had no evidence Mr. Humphrey had done anything illegal. It proved only that he associated with a member of the latter conspiracy.

        Weak as that was, weaker still was the admission of those taped allegations as evidence without the conspiracy member testifying or being subject to cross-examination by Mr. Humphrey's attorney.

        The informer was not part of the earlier conspiracy, and his statements showed only that Mr. Humphrey was the kind of person who participates in drug conspiracies.

        Such use of other acts to impugn a defendant's character is prohibited.

        In this case, it also was irrelevant, and the 6th Circuit rejected the government's justification: its remaining evidence was circumstantial or from plea-bargaining co-conspirators.

        “No case law is cited for this surprising proposition, and we have uncovered none,” the court said. “Therefore, the "other acts' evidence against Humphrey was improperly admitted at trial and its highly prejudicial nature ... His conviction is also reversed.”

        Prosecutors dismissed two black people from a jury in a 1997 Cleve land cocaine-and-weapons case, and Tyransee A. Harris, the African-American defendant, challenged it as unconstitutional discrimination.

        U.S. District Judge Paul R. Matia disagreed: One black person was seated on the jury, and the other two would have been alternates.

        Mr. Harris was convicted and sentenced to 137 months in prison. He appealed, saying the prosecution and Judge Matia violated his 6th Amendment right to a fair trial.

        The 6th Circuit didn't go that far, but it faulted the judge's terse analysis:

        • One black juror did not preclude discrimination by prosecutors.

        • That two rejected black jurors would have alternates was irrelevant. “The logic of this statement escapes us, as it is clear that the district court ... could not possibly have known whether any of the alternates would be called to serve.”

        Judges Damon Keith, Martha Craig Daughtrey and Karen Nelson Moore told Judge Matia to restudy the challenge. If he again finds no discrimination, the conviction and sentence stand. Otherwise, Mr. Harris could get a new trial.


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