IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

Criminal Action No.: 7:19-cr_________________

__________________________________________
:
STATE, :
:
Plaintiff, :
:
vs. :
: TRIAL BRIEF IN SUPPORT
OF DEFENDANT
MARY JANE BARR, :
:
Defendant. :
_________________________________________ :

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TABLE OF CASES AND AUTHORITIES FEDERAL CASES

United States v. Bagley, 473, U.S. 667, 105 W.Ct. 3375, 87 L.Ed.2d 481 (1985). . . . . .

Davis v. Alaska, 415, U.S. 308 (1974). . . . . . . . . .

Crane v. Kentucky, 476 U.S. 683, 690 (1986). . . .

Holmes v. South Carolina, 547 U.S. 319, 324 (2006). . . . . . . . . .

Ohio v. Roberts, 448 U.S. 56, 57 (1980). . . . . . . . . . . .

FEDERAL RULES OF EVIDENCE

F.R.E. 609(b)

F.R.E. 609(a)(2)

F.R.E. 804(a)(4)

F.R.E. 804(b)(1)(B)

F.R.E. 801(d)

F.R.E. 803(1)

F.R.E. 803(3)

Fed.R.Evid. 401

Fed.R.Evid. 1001

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 TRIAL BRIEF IN SUPPORT OF DEFENDANT

INTRODUCTION

Ms. Mary Jane Barr (herein after “Barr”) asks the Court to allow for questioning of

Rhonda Morgenstein (herein after “Morgenstein”) in regards to Morgenstein’s arrest and

conviction for writing a check with insufficient funds. Ms. Barr further asks the Court to

suppress testimonial evidence of Stan Barczykowski (herein after “Stan”) regarding the contents

of Muriel Barczykowski’s (herein after “Muriel”) will and her state of mind regarding the will.

Barr is entitled to the ruling allowing the questioning of Morgenstein because Plaintiff

has failed to provide evidence necessary to show that, pursuant to FRE 403, the probative value

of the arrest and conviction is substantially outweighed by a danger of unfair prejudice.

Additionally, under FRE 609(2), a witness’s character for truthfulness can be attacked by using

evidence of a criminal conviction where the witness is not a defendant, so long as FRE 403 is not

violated. In this case, witness Morgenstein attempts to implicate Barr in the murder of Arnold

Fishman, (herein after “Fishman”) when Morgenstein herself had motive to want Fishman dead.

Thus, the probative value of Morgenstein’s crime involving an act of dishonesty is not

substantially outweighed by the danger of unfair prejudice.

Defendant is entitled to a ruling that the contents of Muriel’s will and her mindset

regarding the will be suppressed. The issue is two-fold and includes (1) a question of relevancy

as to the contents of the will, and (2) a best evidence issue under FRE 1002. Under FRE 402

relevancy only exists where the fact, issue, or conclusion this proof seeks to establish is “of

consequence” to this action; and how the offered proof has “any tendency” to establish that fact.

The prosecution has failed to show how Barr’s alleged murder of Fishman relates to her mothers

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 will. Additionally, pursuant to the Best evidence FRE 1002 requires an original to prove

contents. Without the best evidence rule, reliability is diminished. Admitting testimony from

Stan B (herein after “Stan”) is merely an attempt by the government to draw an unrelated

connection between Muriel’s will and Barr’s alleged involvement in Fishman’s death.

FACT SUMMARY

On the morning of June 11, 2018 Mary Jane Barr was just trying to get through her last

act of the summer. All the while, waves of nausea rolled over her like the tide rolling upon

beachy sand on an overcast day. The evening before had been moderately eventful when Barr,

Morgenstein, and Fishman went to a Mexican restaurant for dinner in celebration of their final

summer sketch. While at the restaurant, Fishman acted as he typically does, drinking three or

four beers with his meal and then ordered a pitcher of Margaritas. Though Barr is not a big

drinker, she decided to split the pitcher with Fishman because it was a celebratory night for her.

All three of the people at the table that night knew that Fishman had Type 2 diabetes and

all three knew that drinking alcohol was bad for his condition. Despite this knowledge, Barr

claims that she had learned, through years of experience, that it was useless to try to convince

Fishman not to drink. He was a man who did what he wanted. All the while, Morgenstein sat

silently by, with unimpaired judgment drinking her non-alcoholic beverages, while Fishman

drank his beer followed by Margaritas. Barr became intoxicated that evening; Fishman got

inebriated to the point of black-out drunk and had to be “dragged” into bed by Morgenstein and

Barr after being driven home by Morgenstein that night.

June 11, 2018 came just like any other morning except Barr claims that she was hung-

over from the night before and so was Fishman. Barr stated that Fishman appeared tired and

cranky but her focus was not one-hundred percent on him. Rather, Barr stated she was

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attempting to get through her own morning, dealing with nausea, vomiting, and diarehhea, while

also thinking about a career-changing opportunity she was about to grasp.

Morgenstein was alert and awake on that morning, getting everything organized on set

for the final summer sketch that would be performed by Barr and Fishman. Morgenstein claims

that Barr appeared hungover and that Fishman was really dragging. Morgenstein alleges that in

response to Fishman’s state, Barr gave him a bottle of ibuprofen telling him to take some, which

Fishman did take put putting the bottle of pills to his mouth, pouring them in, and chasing them

with an energy drink.

The final scene of their act that Barr and Fishman were peforming involved an execution

scene that Morgenstein decided to change on very little notice. Instead of death by lethal

injection like the scene originally called for, Barr stated that Morgenstein introduced a “pick

your poison” idea where Fishman, playing the death row inmate, was given a choice between

lethal injection or deadly pills. With Morgensteins new idea, Fishman picked the pills. Even

though Barr disliked the idea because she found no humor in it, Barr brought pink candy pezz for

Fishman to take. Morgenstein insisted on switching the candy pills for little white ones instead,

which Barr believed were also candy. However, upon taking the pills Fishman, who was already

in poor shape due to his intoxication the night before, passed out and did not regain

consciousness.

Morgenstein stated that she called 911 after realizing Fishman had become unresponsive.

She further stated that Barr had left the scene very quickly during the event and that she found

her in the bathroom. Morgenstein denies any indication, through sight, sound, or smell that Barr

had been experiencing the sickness described earlier. However, Morgenstein also admits that she

cannot be sure that Barr had not been sick. Morgenstein stated she explained to Barr what had

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occurred and that Barr left in her own vehicle to go to the hospital rather than riding in the

ambulance. At approximately 6:00p.m. that day Morgenstein stated she called Barr and got

information that Fishman was not doing well and was unlikely to survive. Morgenstein made

reference to hers and Barr’s previous relationship stating that Barr acted unusual on the phone,

and had become cold and distant toward her over time since their breakup six months before.

After Fishman passed away, Morgenstein claims she went to the hospital and alleges that Barr

told her Fishman wished to be cremated

Morgenstein stated that neither herself or Barr liked Fishman. Morgenstein articulated

that she believed Barr had more talent than Fishman and that Fishman was holding Barr back.

Morgenstein admits that she attempted to convince Barr to leave Fishman and embark on a solo

career. Morgenstein made reference to an inheritance that Barr would receive upon the death of

her parents and stated that Fishman threatened to out Barr as a homosexual to her parents if she

ever left their act.

Barr states that in time leading up to Fishman’s death, she told Morgenstein about her

new opportunity to tour with Amy Schumer from July until December of that year. Barr claims

that Morgenstein was ecstatic about the opportunity, and insistent that she accept because it was

the big break “they” had been waiting for. Barr claimed she never confirmed to Morgenstein that

she had accepted the offer and immediately regretted telling her about it. Barr stated that she

planned to inform Fishman that she would be taking the opportunity and planned to discuss how

they could refresh their act once she completed the tour with Amy Schumer. Unfortunately,

Fishman passed away prior to Barr being able to have that conversation with Fishman. Barr

confirmed that Fishman made threats to “out her” to her parents if she ever left their act, however

Barr claimed she was unconcerned about being disinherited from her parents will. Barr is an only

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child and though she stated her parents would likely be upset about her sexuality she did not

believe they would actually disinherit her. Barr claims she has a loving relationship with her

parents. Barr stated that she had broken up with Morgenstein because Morgenstein was

pressuring marriage, had a lot of debt, and appeared to her to think of Barr as a “meal-ticket”.

Barr used Fishman’s threat as an excuse to end the relationship with Morgenstein but did not

actually believe it to be true. Barr also believed that Fishman had interest in her inheritance.

Barr confirmed that she took on a caretaker role with Fishman who routinely neglected to

care for himself in spite of his Type 2 diabetes. Barr also confirmed her father, Stan, has Type 2

diabetes. However, Stan engaged in a healthy lifestyle, and thus, avoided the health

complications that Fishman experienced. Barr stated she took affirmative steps to educate herself

on Type 2 diabetes to enable her to help Fishman with his condition.

Morgenstein has alleged that:

1. Barr encouraged Fishman to drink alcohol on June 10, 2018 knowing that it was bad

for his diabetes.

2. Barr gave Fishman ibuprofen while on the set of the comedy scene.

3. Barr switched the candy pills Fishman was to take on the comedy scene with a

different little white pill.

Morgenstein is the star witness for the State, but appears to have motive to want Fishman

dead herself. Morgenstein has a history of dishonesty shown by her misdemeanor offense

occurring in 1993.

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 ISSUES STATEMENTS

1. Under the Federal Rules of Evidence, and the Sixth and Fourteenth Amendment, should

the Court deny the States motion to exclude any mention of Morgenstein’s arrest,

conviction or incident in which she was arrested and convicted for writing a check with

insufficient funds when (1) Morgenstein purchased a vehicle for $1500.00; (2)

Morgenstein paid using a check; (3) Morgenstein knew at the time she wrote the check

that she had insufficient funds in her bank account for the check to be withdrawn; and (4)

claims that she had arranged for the funds to be deposited; but (5) she never did deposit

the money and the check remained insufficient?

2. Should the Court grant Ms. Barr’s motion to exclude the testimony of Stan Barczykowski

in regards to the contents of Muriel Barczykowski’s will and her mindset regarding her

will when (1) Muriel is an unavailable witness; but (2) has not and cannot be not subject

to cross examination; and (3) her testimony is offered against Barr in a criminal

proceeding; and (4) refusal to exclude the testimony will deprive Barr of her right to

present a complete defense? Alternatively, Should the Court grant Ms. Barr’s motion to

exclude the testimony of Stan Barczykowski in regards to the contents of Muriel

Barczykowski’s will when (1) under the will is a written document; and (2) evidence to

prove the contents of a writing is not allowed under the Best Evidence Rule?

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 LEGAL ARGUMENT

The Court should deny the States motion to exclude any mention of Morgenstein’s arrest,

conviction or incident in which she was arrested and convicted for writing a check with

insufficient funds because Morganstein knowingly wrote a check for which she knew there were

insufficient funds in her bank account for the check to be withdrawn, and the account remained

in insufficient status.

Under 609(b) of the Federal Rules of Evidence, there is a ten year time placed upon

conviction, wherein evidence of the conviction cannot be admitted for impeachment “unless the

court determines, in the interest of justice, that the probative value of the conviction supported by

specific facts and circumstances substantially outweighs its prejudicial effect.” Here,

Morganstein is the star, and only, witness for the government who has implicated Barr in the

murder of Fishman. Additionally, Morganstein, who was at least a person of interest in the

investigation, has interests in the outcome, was in a relationship with Barr that went sour, wishes

or wished to be back in the relationship, Morgenstein has stated that Fishman caused problems in

the relationship due to Barr allowing him to control her, Morgenstein admitted that she did not

like Fishman, and Morgenstein seems to have had a feasible interest in Barr’s income, her

earning potential, and eventual inheritance. Because the crime engaged in by Morgenstein was a

crime of dishonesty under Fed. Rules of Evid. 609(a)(2). Morgenstein knowingly wrote a check

with insufficient funds to cover the check, she took a vehicle in exchange for the check, and

misrepresented to the owner of the vehicle that the bargained for exchange was one that was fair,

and not worthless. This was an act that involved falsity on Morgenstein’s part. That Morgenstein

maintains she expected the money to be deposited into her account does not change the fact that

she bargained for a purchase that she had no actual money to provide in return. Further,

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Morgenstein never did provide the money in return for the vehicle in the manner promised. In

fact, it was not until charges were brought against her. Thus, Morgenstein has a history of deceit,

shown through her misdemeanor charge, which she attempts to justify. The probative value,

supported by the specific facts in this case outweighs any prejudicial effect that could bear upon

Morgenstein. As Moregenstein is the only witness who claims to have personal knowledge of the

incidents alleged her credibility is a central and crucial issue in the case. Morgenstein will suffer

little prejudice from if the evidence of her past crime is admitted into evidence.

Additionally, a criminal defendant has rights under the Constitution to a fair trial and due

process, which have long been regarded as a “superior right.” United States v. Bagley, 473, U.S.

667, 105 W.Ct. 3375, 87 L.Ed.2d 481 (1985). This ‘superior right’ allows the defendant to

present evidence that could exonerate or nullify the charges being brought against her. The

confrontation clause provides equal substantial rights to impeach a witness with prior

convictions. This right has been held in such high regard that in Davis v. Alaska, 415, U.S. 308

(1974) the Supreme Court nullified state law protecting juvenile records in favor of allowing

impeachment of a witness brought against the criminal defendant.

In the case at hand, Barr is confronted with a lone witness who seeks to help the State

convict her of a serious crime putting her life and liberty at stake. Pursuant to the mandatory

authority offered by the Supreme Court, Barr has a superior right, one that overrides any

prejudicial effect that could possibly come against Morgenstein to defend her life and liberty by

offering evidence that could impeach the witness used against her, which could thus, exculpate

her of the crimes charged.

The capability given to a criminal defendant allowing her to impeach a witness must be

considered through not only the above Federal Rules of Evidence, but also through the

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Constitutional protections of the United States. Errors by the Court in disallowing Barr from

using her impeachment capabilities afforded through her Due Process and Confrontation rights

will likely infringe upon a substantial right. This is especially true considering the seriousness of

the crimes charged and Barr’s fundamental rights that are at stake. Consequently, to ensure

justice is accomplished and the rights of Barr are upheld, this Court should deny the States

motion to exclude any mention of Morgenstein’s arrest, conviction or incident in which she was

arrested and convicted for writing a check with insufficient funds.

The Court should grant Ms. Barr’s motion to exclude the testimony of Stan Barczykowski in

regards to the contents of Muriel Barczykowski’s will and her mindset regarding her will.

Although Muriel is an unavailable witness, her testimony is being offered against Barr and there

has been no opportunity for cross examination. Alternatively, the court should grant Ms. Barr’s

motion to exclude the testimony of Stan Barczykowski in regards to the contents of Muriel

Barczykowski’s will because the will is a written document for which the government is

attempting to use the testimony of Stan to prove the contents of.

Pursuant to Fed.R.Evid. 804(a)(4), Muriel, based upon her current infirmity, meets the definition

of an unavailable witness. Though Muriel testified at the Grand Jury Trial she was not subject to

cross examination. This is significant because in order for her testimony to be exempt from the

rules of hearsay, Fed. Rules Evid. 804(b)(1)(B) requires that Barr have an opportunity for cross

examination since the State seeks to use Muriel’s testimony against Barr. Thus, Muriel’s

testimony, if relevant, must satisfy the rules of hearsay pursuant to the Federal Rules of

Evidence.

Here, the statement offered by Muriel were made not while testifying, they’re being offered by

the State to show intent by Barr which is an element of the Murder in the Second Degree charge,

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no exemptions apply under Fed. Rules Evid. 801(d). The government may attempt to present an

exception under Fed. Rules Evid. 803(1) citing a present sense impression, or under Fed. Rules

Evid. 803(3), citing a then existing mental, emotional, or physical condition. Though both of

these exemptions may be available in some cases, it is important to note that to apply those

exemptions here would be in error. The Supreme Court has held that “whether rooted directly in

the Due Process Clause of the [Fifth] Amendment or the Compulsory Process or Confrontation

clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986). By

introducing testimony that the State seeks to use to help prove the “intent” element of the Murder

in the Second Degree crime charged, the State attempts to use the rules of evidence to infringe

upon the constitutional rights of Barr. Namely, the state attempts to use evidence, which she

cannot defend against, which she cannot ask questions regarding, and which she cannot confront

in any meaningful way. The Supreme Court has adamantly protected against the very thing the

State attempts to do here, holding in Holmes v. South Carolina, 547 U.S. 319, 324 (2006) that

rules which “infringe upon a weighty interest of the accused [or] that are arbitrary or

disproportionate to the purposes they are designed to serve” must yield to the right of the

defendant to present a defense.

Additionally, the record has developed the fact that Muriel was suffering from dementia.

Therefore, even if the State does satisfy the Court that a hearsay exemption or exception applies

it should be acknowledged that the statements made by Muriel lack “adequate ‘indicia of

reliability” which must be addressed if the evidence is “firmly rooted [within a] hearsay

exception.” Ohio v. Roberts, 448 U.S. 56, 57 (1980). Though the statements of Stan do not

appear to lack reliability, the statements made by Muriel herself are problematic. Muriel was

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suffering from dementia even before her infirmity. Because of this it is impossible to know if

Muriel was competent, or if she made the statements she made while competent. As such,

Muriel’s statements regarding her mindset of the will, even if the Court decides do not present a

constitutional violation, should be excluded based on inadequate “indicia of reliability.”

Moreover, Muriel’s will falls under Fed.R.Evid. 1001, the Best Evidence Rule. The will

is a writing, and Stan’s testimony the State attempts to offer is to prove the contents of the will.

Again, the State attempts to use this, like Muriel’s mindset regarding the will, as a way to create

an inference showing Barr had motive to want Fishman dead.

However, considering the testimony of Stan that the will, or the differences in

distribution between Stan and Muriel’s wills were never discussed with Barr, the entire

introduction of the contents of the will and Muriel’s mindset behind the will may not even be

relevant to this case. Before even making a Best Evidence Determination, the Court must first

determine whether Muriel’s will, and her mindset related to the will, is relevant – i.e. “make any

fact of consequence more or less probable.” Fed.R.Evid. 401. Here, Barr’s knowledge of the

difference between Muriel’s and Stan’s will, and Muriel’s mindset, are both facts of consequence

which the State has not established. There appears to be nothing in the record that suggests Barr

was aware of any difference between the will of her father or mother and the State has made no

demonstration to this Court that provides an insight into Barr’s intent with regards to the will.

Accordingly, the Court should grant Ms. Barr’s motion to exclude the testimony of Stan

Barczykowski in regards to the contents of Muriel Barczykowski’s will and her mindset

regarding her will.

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PRAYER FOR RELEIF,

For the foregoing reasons, this Court should deny the States motion to exclude any
mention of Morgenstein’s arrest, conviction or incident in which she was arrested and convicted
for writing a check with insufficient funds.

The Court should also grant Barr’s motion to exclude the testimony of Stan
Barczykowski in regards to the contents of Muriel Barczykowski’s will and Muriel
Barczykowski’s mindset regarding her will.

Electronically submitted this the 18th day of July, 2019.

______________________________ Lisa Buczek Lang

Counsel for the Mary Jane Barr

The Campbell Law Firm

Post Office Box 937
Raleigh, North Carolina 27602

(919) 679-5009

State Bar No. 8699986 buczek@camplawfirm.com

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 CERTIFICATE OF SERVICE

The undersigned certifies that service of a true and correct copy of Defendants Trial Brief
in Support of Defendant was sent to the following counsel on the below-listed date, via
electronic mail:

Plaintiff’s Counsel: Nota Winner

Firm Name: Elon Semi Grads
Firm Address:
987 Nowhere Lane
Raleigh, NC 27606
Firm Telephone:
(919) 867-5309

Date: July 10, 2019

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