Zimmer, Duncan & Cole

Juries Don't Often Hear the Whole Story

This week, I’m writing my column from the couch, with an eight-day-old baby rocking peacefully at my feet.  Following my wife’s detailed instructions, I inspect Zoe’s swaddling every so often to ensure that her nose has a clear pathway to fresh air. 
One of Zoe’s gifts in this new world is a mother who worries well-beyond her fair share.  My wife’s hyper-vigilance is just fine with me, especially as I reflect upon the sad circumstances of this week’s case:  a mother and father who tragically lost a wonderful son. 
Ethan Holznagel was sixteen years old and a student at Mitchell High School.  He was handsome and liked by his peers.  He was passionate about skateboarding, and he loved music. On an internet profile, he humbly summed himself up like this:  “I’ve been skateboarding since the start of 2005, so I’m not the best in town, but I am really, really decent, most likely because I vary myself and try a lot of new things.”
On a Tuesday in April of 2006, Ethan headed home from school to eat lunch.  He was driving east on 8^th Avenue, just three blocks from school. He approached the next intersection at the same time as John Cutsinger, an employee of Dependable Sanitation.  Mr. Cutsinger was pulling a 30-foot recycling trailer behind a large, Ford F-450 truck. 
When Mr. Cutsinger reached the intersection, he executed a wide, right turn, with the intent of heading west (toward where Ethan was coming from).  During that wide turn, the truck and trailer crossed into Ethan’s side of the street and collided with his car.  Ethan died shortly thereafter.
Mr. Cutsinger told a police officer that he “probably” smoked marijuana on the morning of the accident, prior to his 6:00 a.m. shift (but he later denied saying this.) He also admitted to smoking marijuana before work—as many as fifty times before.  And after hearing the tragic news that Ethan had died, Mr. Cutsinger headed home from work and smoked marijuana again.
On behalf of Ethan’s estate, Ethan’s parents filed a wrongful death lawsuit against Mr. Cutsinger and Dependable Sanitation.
Shortly before trial, the defendants’ lawyers filed a motion asking the judge to exclude from trial any mention about Mr. Cutsinger’s marijuana use.
His drug use was not in doubt:  Mr. Cutsinger’s blood and urine tested positive for THC, the active chemical in marijuana.
Instead, the defense lawyers argued that this evidence would unfairly poison the jury’s view of Mr. Cutsinger and Dependable Sanitation.  In other words, they feared that the jury would assume that Mr. Custinger caused the accident simply because of his marijuana use.
The trial judge agreed, and the jury was not allowed to hear any mention of Mr. Cutsinger’s drug use.  The jury returned a verdict against Ethan’s family, who then appealed.

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 Telling a story in open court is not like telling a story in your living room.  In court, the story unfolds in a very formal fashion. It is told in pieces.  Only one witness can testify at a time.  Long, narrative answers are frowned upon, so each witness may testify only in response to a specific question. 
Before the jury arrives at the courthouse, the lawyers may file a motion in limine to prevent certain topics from being discussed.  (In limine is Latin for “at the threshold,” signifying that certain topics will be left at the courtroom door.)
Generally, a jury is allowed to hear every bit of evidence that might affect their decision.  However, if the testimony is much more likely to confuse or inflame the jury than to help it reach a decision, it can be excluded via such a motion.
On appeal, the South Dakota Supreme Court agreed that the drug evidence could be excluded in this case.
Although Ethan’s family believed the drug use could affect the driver’s memory, perception, and reaction time, the responding officers said they didn’t notice anything unusual about Mr. Cutsinger.  The Court suggested that its decision may have been different if a medical expert had testified about the effects of marijuana use five hours after smoking it.
Without that expert testimony, the Court agreed, then, that the evidence would be more prejudicial than helpful.  The verdict against Ethan’s family was affirmed.