Wednesday, April 10, 2013

Bill creating loophole in Rules of Evidence would cause more false convictions

Legislation has passed the Senate that Grits hopes will die the same quiet death in the House Criminal Jurisprudence Committee that it did last session. SB 12 by Sen. Joan Huffman, an idea which Grits has criticized before, would upend Rules 404 and 405 of the Texas Rules of Evidence in trials of alleged child molesters, allowing evidence of past offenses, even episodes where the defendant had never been indicted nor convicted, in lieu of provable facts in the case in which they're charged. The bill sailed through the Senate relatively early this year and yesterday the companion bill was heard in the House Criminal Jurisprudence Committee. (Go here to listen to the hearing, beginning about the 52:00 mark. The Texas Tribune has a brief writeup. See also excellent Houston Chronicle coverage of last session's version.)

In the past, I've compared the philosophy behind this bill to the Vichy policeman in the movie Casa Blanca who declared, "Round up the usual suspects!" If you were guilty before, obviously you must be guilty this time. The bill analysis says the legislation would "provide prosecutors with a much needed tool" to win cases, but a prosecutor's duty is to seek justice, not convictions.

Rule 404 declares that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity" with the prosecutor's theory of the crime. Justin Wood of the Harris County DA's office said the bill would "work alongside" Rule 404, but it strikes me as more creating a massive loophole.

The American Bar Association opposed a similar federal rule when it was enacted in 1994, noted David Gonzalez of the Texas Criminal Defense Lawyers Association, arguing that allowing in evidence of prior bad acts would prejudice the jury. Interestingly, Gonzalez added that the only time this rule comes into play in federal courts is on Indian reservations.

TCDLA's Kristin Etter declared that the bill "will undoubtedly lead to more wrongful convictions in Texas," noting that most of Texas DNA exonerees were convicted of sex crimes. She noted that Texas penalties for sex offenses are immense so the stakes are particularly high for an innocent person convicted of these sorts of offenses. As the Tribune recorded, "The a lack of physical evidence in the cases, she reminded the committee, 'cuts both ways.' It makes it more difficult to convict someone, but it also makes it more difficult for innocent people who have been convicted, because there is no DNA evidence to help clear their names." Excellent point. The exchange made me think of the poor women wrapped up in the San Antonio Four case, where one of the now-grown child victims has recanted and flawed forensics were apparently presented at trial. IMO Etter nailed it. This bill amounts to asking for more false convictions.

Though not a sure thing, the bill looks like it may have the juice to make it out of committee. Vice Chair Stefani Carter appeared ardently supportive and Reps Leach and Toth on the committee are joint and co-authors, respectively. That said, Rep. Terry Canales asked good questions and clearly was highly skeptical, but it's hard to tell which way other members were leaning, several of whom were not in the room.


Barry Green said...

As far as "same victim" extraneous offenses goes, art. 38.37 of The Texas Code of Criminal Procedure has been allowing this since 1995.

But to throw it open to alleged third party victims under 404(b) would be a nightmare.

FleaStiff said...

>but a prosecutor's duty is to seek justice, not convictions
Grow up! The prosecutor's duty is to get re-elected and he does that by winning convictions particularly in any case about child abuse.

And the legislators get re-elected by being tough on the innocent and pure hell on the guilty!

Anonymous said...

Well, it would certainly be a nightmare for serial child molesters!

What I thought was interesting in yesterday's hearing was Ms. Etters complete inability to show where evidence of an extraneous act of sexual abuse had lead to a wrongful conviction. And she was unable to identify any of the notable "exonerated" who had prior sex offenses.

The federal rules of evidence have allowed extraneous sexual offense evidence for a long time now. Can you show us a single instance where this rule has lead to a wrongful conviction? I doubt it.

There are any number of circumstances under Texas law now where extraneous bad act evidence is allowed to be introduced in the guilt phase of a trial. In a child sexual abuse prosecution, there's really no good reason why a jury should not hear this highly probative evidence. I honestly cannot think of a case where "propensity evidence" would be more relevant than in a sex offense case.

By not allowing this evidence in, all you're doing is increasing the odds that a guilty child molester will be acquitted. I understand that would be cause for celebration on this blog. But for most Texans, thankfully, this is not a desirable circumstance. This is a good bill and Sen. Huffman should be commended for pursuing it.

Anonymous said...

I personally experienced a case recently where a loved one stood trial for a sex crime he didn't commit and he ended up taking the plea. Why? Because several years prior, during a bitter divorce, allegations of sex abuse were made against him. The charges were dismissed. During pre trial hearings it was shown that the "victim" in that case had texted friends that she had made up the story to get her step-father out of the house. However, because no screen shot of the image was included, the judge in the current case ruled that the "victim" could testify and that the prior case could be used in the current one. Understanding the prejudice of the juries in such instances, and understanding it was impossible to fight two court cases (one of them old) at the same time, this person chose to take the lesser plea, even though he'd done nothing wrong. It was that or risk 20 years. This is not a "wrongful" conviction, he took the plea, but it's an example of how an innocent person gets chewed through the system and cannot fight his case on its own merits when these types of prior allegations--even though they were dismissed--and even though the "victim" is known to be a pathalogical liar--could still cause an innocent person to go to prison. The stakes for not taking the plea were just to high.

Anonymous said...

Anonymous 11:34 wrote: "Can you show us a single instance where this rule has lead to a wrongful conviction? I doubt it."

Ofcourse not, because Texas has never met an alleged 'child sex offender' it didn't like...

Anonymous said...

@2:34. I'm thinking the distaste for child molesters is not anything exclusive to Texas. In fact, I suspect it's almost universal except on this blog.

Anonymous said...

"...allowing evidence of past offenses, even episodes where the defendant had never been indicted nor convicted, in lieu of provable facts in the case in which they're charged..."

Let's do the same with Prosecutors and their past alleged misconducts. During criminal proceedings a Defense Attorney is allowed to disclose to the judge and jury the number of times the Prosecution allegedly suborned perjury, intimidated witnesses, and withheld Brady Material.
The jury can decide if the Prosecution is actually seeking justice, or seeking convictions.

doran said...

Great idea, 4:28. That would be the kind of "propensity evidence" that could have an attenuating effect on that sort of prosecutorial misconduct.

In anticipation of screams from the prosecutors' cheering section, the use of that kind of evidence could be limited to those cases in which the prosecutor gives the defense advance notice of intent to use evidence of alleged prior offenses of the defendant.

While we are at it, let us also provide for use of this kind of evidence against law enforcement guys and gals. Of course, if a LEO testifies, then "propensity evidence" of that officers habit of lying, intimidating witnesses, beating the crap out of suspects, etc can already be used on cross examination. But that use needs to be broadened to include those LEOs who do not testify, but upon whose work or investigation some other LEO basis his or her testimony.

Ahhhhh. What a dream.

Anonymous said...

And as if on cue, see "Child witnesses can be easily manipulated, new study"

Anonymous said...

Don't you just love it when the perverts and their supporters can't logically refute an argument on its merits and have to resort to irrelevant, ad hominem attacks on prosecutors and other law enforcement officials! Looks like Sen. Huffman's bill might be well on its way to becoming law and I'm certain that the overwhelming majority of the law abiding public will appreciate it. If you pervs are that worried about it, move to California. God bless Texas!

Gritsforbreakfast said...

5:54, just to mention it, you're the main one here who seems to make no argument and have nothing to contribute but ad hominem attacks.

Anonymous said...

Justice is suppose to be blind. That means all crimes are equal under the law and all alleged crimes should be treated equally and fairly. Allowing what amounts to hearsay to convict someone is not justice. If you think that hearsay is justice, then post your name so I can spread some rumors about you! Either we are all equal under the law, or we are in trouble.

Already Convicted said...

I am a convicted RSO, and this comment goes mostly to the anonymous poster who is so adamant about how good this bill is.

First I want to dispel a thought I am sure you are having, and that is because I am already and RSO (and a truly guilty one, of molesting a little girl), that someone like me would have sympathy upon another RSO facing an accusation for a second offense.

I can tell you that I regret my behavior. I thought it was harmless at the time, but over the last decade, I have realized the hurt and disappointment I have caused to friends and family, and although I have no information on how my victim feels, I am sure she is extremely disappointed with me, and I have ruined much of her sense of trust - even beyond that for me. If I thought another RSO was truly guilty, I would have no sympathy on him (or her). Now they definitely know better.

Having said that, I think this bill is a big mistake for several reasons. First, sex crimes that do not involve intercourse are virtually impossible to prove with physical evidence. This surely makes it difficult for the victim. If I had not confessed to my misbehavior, it would have been impossible for anyone to prove. It only involved touching, and there were no witnesses.

But the penal code, section 22, states explicitly that in cases where the victim is younger than 14 that no proof is necessary except the victims testimony. That in and of itself seems like a total violation of our nations notion of a fair trial. But like I said, what can be done about a touching offense? Thats where its up to a jury to judge both the accused and the victim. The problem is that most juries selected after the voir dire probably have a "its better to convict an innocent man then set a guilty one free". It used to be that evidence of a promiscuous child could be introduced as a defense, but today, any miscreant behavior by the child (even that which may show the child is lying) is ignored.

You must have some understanding of the history of our legal system. In England, when kings still ruled before the discovery of America, a practice was held by the king called hearings in the Star Chamber. This allowed the king to do what he wanted in private, where the public could not have an idea of how their king was passing judgement. The king could have anything he wanted recorded on paper - even that the accused ( of course to be executed) could have chance to plead his innocence.

When America was formed, and especially when our Constitution was designed, our justice system was designed so that practices such as Star Chamber hearings were illegal. Also in England, magistrates could tell the juries what to think. Also illegal in the United States.

Proof by evidence is the only way to grant a fair trial. Most legislators are lawyers - same as prosecutors. They want to win; even at someone else's expense.

Very young children are too easily manipulated, and teenage children can be flat out ruthless.

Especially in the cases of teenage victims, it is way, way too easy for a teenager to look on the sex offender registry and find a neighbor, then just for spite and malicious fun, accuse the RSO of another offense. He's hung even if he's never met the accuser.

Also consider stepchildren that are not happy with their parents remarriage choice, or a teenager that just wants there way, and used such as easy-to-convict legal system to threaten their parents.

Think it doesn't happen. How would you know?

When I was in prison (10 years), more than once ( I think about 4 or 5 times) I actually read apology letters written by nieces, daughters, or step daughters; now grown up, who had falsely accused their father, step-father, or uncle of sexual misconduct that led to a lengthy imprisonment. Their reasons were usually spite or brattiness.

(continued in next post – we are limited to 4096 characters)

Already Convicted said...

What the alleged victim thought was that the accused might be arrested as harassment or just go to jail for a few days, then come back so they could have their way. One girl just wanted her step-father out of the house, and new he would go to prison. She later regretted it in a letter after she had grown up and matured, realizing that she had ruined this mans life for 25 years.
I remember in two of these letters, the victim was trying to help get the prisoner out, but the law was really not trying to hear it.

Its already too easy to convict a sex offender - guilty or innocent. There is not way to really prove what the ratio is.

dHarbour60 said...

Those who use this as a not so disguised forum to vent their personal feelings about sex offenders obviously don't know Scott very well. Accusing him of using this blog as a pro-sex offender platform. Scott is pro justice for ALL people, regardless of personal feelings. That is how the system is supposed to work. Remember, And justice for all? If you believe in the Constitution and the Bill of Rights, then it applies to everyone, period.

John N Florida said...

WHEN will legislators ever learn that locking up SOMEBODY does no good unless they're the RIGHT body.
In most cases where an Innocent person is finally released after overturning a wrongful conviction, the DNA Evidence goes on to find the true guilty party. In too many cases that individual is also in prison because s/he was allowed to continue their lucrative(?) criminal career long after the poor schmuck was locked up for one s/he didn't do.
They FINALLY screwed up bad enough that even 'Barney with the Badge' couldn't overlook them.

justTheFacts said...

To Anonymous @ 11:34: A comment concerning your remark "by not allowing this evidence in, all you're doing is increasing the odds that a guilty child molester will be acquitted. I understand that would be cause for celebration on this blog."

Why do you feel, as I have heard countless times, that seeking justice within the bounds of the law constitutes sympathy for truly guilty persons? I think you'll find that the majority of rational people want the guilty to be held accountable for their actions. We must, however, operate on the basis of the rule of law and not out of raw emotion.

No one wants a judicial system that presumes (without the requirement to prove) guilt - right? No one wants innocent (and I'm referring to actually innocent) persons convicted, incarcerated, and at times executed - right?

Anonymous said...

Ok, so take the 'sex' out of the crime for a moment. Let's use "murderous" crime. Would the idea that someone 'may have' a crime in court? How far would the case get on evidence of alleged criminal enterprises, before the Supreme Court metaphorically slaps some sense into legislators?

We have here a direct and certain affront to the Constitution, and all of the rights for the accused that it contains. As "innocent" people stand back to gaze upon its destruction with glee, they are honestly ignorant of the very ideas that they believe in are being turned against them.

Anonymous said...

So then, for all you opponents of this bill, how many prior convictions for molesting children should a defendant have before a jury is permitted to hear about it? One, two, ten, fifty, a hundred? Or do you just believe that it's never relevant to the issue of guilt? That regardless of how many former victims there were, the jury should never be allowed to know about it?

Hypothetically, how would you like to be a juror on a child molestation case that returned an aquittal only to learn that the defendant had multiple prior victims? Never mind, I suspect that many of you would be just fine with that. Let me ask it differently, how would you feel if you were the parent of that child victim? Does anyone on here actually care at all about victims?

Anonymous said...

To 12:46 ... I am a mother of daughters. This is not a question that I take lightly, but I still believe that a case should be tried on its own merits. Yes, even if my daughter was the victim. I say this having also been a victim of sexual abuse.

One thing that it seems some people forget is that innocent men and women who are either wrongfully convicted or who take the plea to avoid the risk are victims too. Our society is very good about wanting to protect innocent victims who are on the receiving end of an individual, but if a person is wrongfully convicted he is expected to just suck it up.

In the case of sex charges, no evidence of guilt is required, just someone's word and in our current witch-hunt climate, someone's word is more than enough. For other crimes: murder, robbery, extortion, kidnapping, you name it, some form of evidence is required to go "beyond reasonable doubt" but not for sex offenses. Just being accused of an offense, even if you are aquitted or the charges are dropped means that for the rest of your life there will "always be reasonable doubt" as to your innocence.

For those who have never been on the receiving end of the justice system, it's easy to believe that "innocent until proven guilty" is the way things work, but it's not. When it comes to sex charges, everything moves forward with the assumption of guilt. The deck is already stacked against the person charged and allowing prior unrelated incidences as evidence will only make it that much harder for an innocent person to fight for freedom.

Anonymous said...

@Anon 12:46:

How would I feel if I was presented evidence that did not prove the man guilty, irregardless if he was a registered sex offender? I would feel exactly as I would if he was not a previously registered offender. The Prosecution can currently bring in past criminal behaviors during the sentencing phase of trial. Why should that also be able to "prove guilt" by associating past criminal conduct in a yet unproven case?

It is insane to attempt to explain current guilt for an accusation by introducing evidence from an unrelated incident. If it were that easy, then all police need to do to 'clean their cities of crime' would be to drive to a registered offender's home, arrest them, and say "little Suzie said you touched her", and then get a conviction from evidence from an already resolved trial.

Do you enjoy that thought of corruption at that level? If you think no cop would plant evidence, you are either a cop, or really really naive.

Anonymous said...

A good prosecutor attempts to convince the jury that the defendant should be convicted because he or she committed the crime in question.

A weak prosecutor attempts to convince the jury that the defendant should be convicted because he or she is a bad person.

Seems we have some really weak prosecutors commenting here.

Anonymous said...

People seem to be under the mistaken impression that prior offenses or bad acts are not admissible in criminal trials. They are, and they come into evidence all the time, the prosecutor just has to state a specific justification other than a propensity to commit the same (or similar) crime. Judges let this stuff in routinely and appellate courts give them broad leeway. Also, I was not aware there is a crisis in getting sex convictions. As a legal issue, all it takes is the word of the victim for a jury to convict, and they don't even need that if there's some other evidence. This appears to be a solution in search of a problem.

benbshaw said...

Anonymous @ 11:34 seems to have no understanding of the current system of justice in place in Texas and most other states.

The proposed legislation wants to allow prosecutors to introduces the defendant's previous criminal record, even if the defendant was not convicted for that offense, during the initial trial. The jury in the initial trial is the "trier of the fact" only. The jury is supposed to determine whether the defendant committed the offense with which he or she is charge in the current trial. Past guilt was the focus of the previous trial and is not the trial for the defendant is currently being tried.
Previous convictions can be introduced during the penalty phase of the trail, but not for instances for which the defendant was not convicted.

Regarding your claim to be "law-abiding", you forget that the Bill of Rights is the law. So those who try to violate the Bill of Rights, including legislators, are lawbreakers.

Justice Louis Brandeis pointed the consequences when the government breaks the law:

"The government is the potent omnipresent teacher. For good or ill it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that the end justifies the means -- to declare that the government may commit crimes -- would bring terrible retribution."

Anonymous said...

I'm still waiting for someone to logically explain to me how this bill would result in more false convictions as opposed to more correct convictions?

Gritsforbreakfast said...

7:17, it's because it relieves the prosecutor from the burden of proving the charges they indicted the defendant on. More convictions in which prosecutors don't have to prove their case means more cases with a greater likelihood the evidence wasn't good enough on its own to sustain a conviction, but this bill provides another avenue to convict anyway.

Anonymous said...

But why do we have to view cases and defendants in a vacuum? Where in the world is the logic in that? It's commonly understood by social scientists and psychologists that a person's past is the best predictor of future behavior. Why should it be any different in the judicial system? Why should a jury be forced to wear blinders and not consider all evidence about the person on trial? If you go to a doctor to seek a diagnosis for some unknown medical condition, isn't it important that a doctor be given a complete medical history? In another context, let's suppose a person is on trial for arson and it's known that the person had been convicted of arson three times before. Are you just supposed to ignore the fact that the prior events never occurred? Maybe I'm out of touch, but I think most jurors and the public at large believe this type of evidence is highly relevant and should be considered.

Anonymous said...

8:23, Not to hijack your question, but a more apples-to-apples version would be "let's suppose a person is on trial for arson and three times before someone had accused him of starting fires, but either he was never charged, the charges were dismissed or prior juries aquitted him. Are you just supposed to ignore the fact that at any point in his life other people accused him of starting fires?"

Anonymous said...

To the poster at 8:23, here is an example of the reason why. Taken from the Austin Chronicle of 2010-09-10: "Seven-year-old Ashley Estell disappeared from a Plano playground on Sept. 4, 1993. The following day her body was found on the side of a road, six miles away; she had been strangled. Police quickly found and charged with the crime 23-year-old Michael Blair – he'd been seen driving past the site where Estell's body was dumped with several teddy bears in his car, and prosecutors later said that hair found at the crime scene was a match to his. Although Blair proclaimed his innocence, he was convicted of capital murder and, after a 90-minute jury deliberation, sentenced to death.

Estell's murder prompted Texas lawmakers to get tough on those who would harm children and, although there was no evidence that Estell was sexually abused, to focus that toughness on laws aimed at punishing "sex offenders." At the time of Estell's disappearance, Blair, who'd previously been convicted of burglary and indecency with a child, was on parole. The facts surrounding Estell's disappearance and death combined with the facts of Blair's criminal history prompted state Sen. Florence Shapiro, R-Plano, to call for swift and strong action against sexual predators. "So that we may never forget the life that was lost and certainly the tragedy that occurred in Plano, I plan to call these Ashley's Laws," Shapiro told the Fort Worth Star-Telegram in 1994. "No community is safe while we have a broken criminal justice system. We always wait for the big tragedy before anything is done. Michael Blair should never have been free to roam that park."

Blair was exonerated in 2008 after new genetic testing proved that the hair from the crime scene was not his. Estell's real killer remains at large.

Sadly, for most wrongfully accused of sex crimes, genetic material does not exist.

Anonymous said...

What about accusations of sex crimes that allege touching with no genetic material as evidence where the child accuser has a long history of false accusations and sexual acting out as well as being caught in several lies on the "outcry" video. How often is the prosecutor able to keep the past of this accuser out of evidence? How likely is that to result in a false conviction because a child wanted to cause problems for someone who did not let him have his way? So do we go out of our way to protect the "victim" at the expense of the accused who should be presumed innocent with the right to confront and impeach the witnesses against him? How often will a prosecutor seek a conviction where he knows reasonable doubt exists, but believes his witness can bring him a conviction anyway. Just chalk it up to being a close case and so what that an innocent person rots in prison.

Anonymous said...

This blog doesn't support child molesters, it supports a man that we believe was wrongfully accused of child molestation. If you think he's guilty, then show us some evidence besides some cracked out parents, that abused their children themselves, who can't get their story straight.-beanieman

Anonymous said...

Also, since you have it in your head that this blog supports child molesters...why would you come here? Do you frequently visit those kinds of sites?-beanieman

Anonymous said...

Bottom line is, all this bill does is make a prosecuter's job easier to win a conviction at the expense of the possibility of putting more innocent people in the pen. When it comes to determining a man's freedom, a win and loss record shouldn't matter. This isn't a sport...there is no playoffs that lead to a shiny prize at the end. It's not only a persons life you're fucking with, it's a whole family you're breaking apart, which causes more problems in society. The whole system needs to be restructured, it needs to be less of a competition. There should be more balance in prosecuting and defending. It's too easy to get convicted and too difficult to defend. Adding more and more contraversial bills like this won't solve anything. FREE SPM!!!-beanieman