Balance of Rights? Not in Our Constitution

When I started this blawg back in May, I wrote this as part of the initial post:

I believe that the system is out of kilter. It's designed to favor the criminally accused because of our Anglo-American tradition that it is better that guilty people go free than that one innocent person be convicted. To help ensure that, the Constitution enshrined not a level playing field for prosecution and defense but a steeply tilted one. It's supposed to be hard to convict, easy to acquit. Juries really are supposed to be damned sure that the guy is guilty before convicting, and they're supposed to have the right to acquit even those they believe the guy is guilty if the law stinks. Judges aren't supposed to fear political backlash from ruling in favor of those who are charged with committing even heinous crimes. The police and prosecutors are supposed to play by the rules, and if they don't, the penalty should be that the accused goes free. That's how we build integrity into the system.

It was a two-part point.

1. The theory of the criminal justice system is that it isn't supposed to be even with the prosecution and defense equally balanced. It's supposed to be tilted, steeply tilted, in favor of the defense.
2. The system, doesn't work, in the real world, the way the theory says it's supposed to.

I've returned to both these points repeatedly since then. But Scott Greenfield's thoughtful post this morning about people with disabilities serving on juries points me to a corollary. Scott is inspired by a post written by a self-described "high-functioning autistic" who was called for jury duty. She was concerned about her ability properly to serve. She explained it this way.

Would being a juror be something interesting? Sure, I personally think it would have been cool to serve on a jury. But not at the cost of misconstruing the wrong verdict. I, along with, I'm certsin, other people on the spectrum, have a myriad of problems, and in a trial setting it can become glaringly obvious. My own main issues include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects (such as anime...), both of which impede on the function of a juror, which is to be an unbiased decider of the verdict. Or, me just wanting to not be sitting in the courtroom for whatever reason might compell me to leave (yes, I still have problems sitting still and will still rock in my chair, albeit rarely). I'd very likely have trouble discerning truth from fiction and would be a not-so-great or even disruptive juror.

Good for her to recognize that however much she'd have liked to serve, if her disability went unnoticed - or was thought insufficiently significant - the system would suffer because she wouldn't be able to do her job properly.

Scott heads off in a different direction, exploring why it is that although we can and should accommodate people with disabilities on juries, those with autistim should not serve.

In the balance of rights, the defendant's must prevail.

It's that balance I want to talk about. The rights of a criminal defendant don't arise out of thin air. They were specifically incorporated into the Constitution in 1791 with the adoption of the Fifth and Sixth Amendments. They rest on centuries of Anglo-American legal tradition, on the right to present a defense, and on fundamental principles of due process. Roll all that together and what you find is that in a criminal case one value must trump all others:

The defendant, the one who stands accused to face the power of the state, must not be impeded in his power to present his case by values external to the system of criminal justice.

Yes, the prosecution must have fair opportunity to prove the defendant guilty beyond a reasonable doubt. But that opportunity must be fairly exercised. More to the point, the rights of those other than the accused - except as they are directly protective of the rights of the accused, must give way.

Two examples, then, of where we've gone wrong:

Rape shield laws. These laws were adopted with the laudatory goals of protecting the victims of sexual violence and of encouraging those victims to come forward so that the perpetrators can be brought to justice. The implicit assumption of the laws and their real-world application in the courts is that rape victims don't lie. If they claim to have been raped, they have been. As a consequence, any dilution of the ability of the accused to defend himself or herself (yes, women get accused of rape, too) must give way to the right of the victim. But it's a faulty assumption and a misguided effort.

The assumption is faulty because, in fact, there are false accusations of rape. (See, e.g., here and here.) And rape shield laws often (not always, but a significant percentage of the time) make it too easy for those false accusations to grow into wrongful convictions. More important, the assumption is legally faulty, because nobody is legally guilty of a crime until after the verdict is returned.

Most importantly, the whole idea is based on the misapprehension that those harmed by crimes (for why I don't call them "crime victims," see here) are supposed to have rights within the criminal justice system. They aren't. The issue is whether the accused, the defendant should be found guilty or not guilty. There's no room in that question for asuring a degree of comfort to those who might or might not have been harmed.

Peremptory challenges. The idea behind peremptory challenges is that there are prospective jurors who cannot be fair but who slip through the system of challenges for cause. If the defense and prosecution each have the opportunity to get rid of the jurors the other side is most enthusiastic about, the result should be a jury as close to impartial as we can get.

The problem with the system of peremptory challenges is that it leads, ineluctably, to serious problems of racism that further infect a justice system already infected with racism. For decades the law had been that the state could not systematically exclude African-Americans from juries simply because they were African American. But the law had virtually no teeth. In 1986, in Batson v. Kentucky, the Supreme Court took the issue on directly and created a system, more fully worked out over several ensuing cases.

The short of it today is that nobody can exclude jurors simply because they fit into certain protected categories. Both the government and the defendant, the Court said, are acting as agents of the government when picking a jury and the government may not discriminate on the basis of race. Therefore, to protect the rights of the excluded jurors, neither the government nor the defendant may exclude jurors because of race (or other protected category).

The problem should be obvious. The person who stands accused by the government and must defend herself against the government, is not acting as the government when engaged in picking a jury. The prospective juror dismissed by the defense for reasons that would be improper in discharging an employee simply has no legal gripe against the defendant. That prospective juror's rights against discrimination must give way to the defendant's rights to due process and fair trial and to present a defense to people who will take it seriously.

The same, of course, is true of people with disabilities - whether autism or hearing loss or diabetes. Our laws say, and say rightly, that we must accomodate and not discriminate. But the defendant's right to fair trial must, always must, come first.

That's the system we set up. We don't balance the rights of the accused. We honor them.

Be a nice touch if either the originalists or the so-called liberals on the Supreme Court understood that.

If they weren't guilty, they wouldn't be suspects.

They call them "rape shield" laws, and for those who aren't old enough to remember, they came about because women finally had enough social and political clout to convince legislators that "she was asking for it when she dressed that way" shouldn't be a defense to a rape charge. The idea, as those old enough to remember will tell you, is that one reason women wouldn't report rape, and wouldn't pursue rape charges when they did, is that they ended up getting victimized twice - first by the rapist, then by the legal system and, in particular, the defense counsel that derided them and put them on trial, parading their behavior - especially their sexual behavior - in open court.*

"The bitch deserved it" is deeply offensive as a defense, after all. But it was also common.

So they enacted these laws that said, well, here's Ohio's which is fairly typical:

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

As the Ohio Supreme Court explained forty years ago,

First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.

Noble ends, no doubt. But as we were taught back in second grade, the ends don't justify the means. (Unless you're Dick Cheney or John Yoo trying to explain that torture is a fine and noble endeavor, but I digress.) There are two basic problems with these laws: They prohibit too much, at least as they're applied, and they assume too much.

They prohibit too much because the defense of "she'll sleep with anyone, and I can prove it" really is relevant to the question of whether she's telling the truth when she says "I wouldn't sleep with him willingly." Similarly, that the child was sexually molested by another person the year before provides an alternative explanation for how the child might know what sexual molestation involves. The law prohibits a jury from learning these things.

They assume too much because they presume the accuser to have been, in fact, assaulted. The Ohio statute, like most (if not all), doesn't speak of the accuser but of the "victim." Of course, if the defendant is guilty, then any defense is a sham. And it might subject the victim to further abuse, which would surely be unfair. On the other hand, if the charges aren't true, there is no victim to be further abused. Can't be so. The legislature has already spoken: Guilty as charged.

The essence of the Sixth Amendment is that accused has a right to present a defense. In Washington v. Texas, for instance, the Supreme Court said

The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.

And if there is any doubt that Washington means what it says, the Court has repeatedly made clear in recent years, the Sixth Amendment means that there is a right to confront witnesses and challenge the government's version of the facts. See, for instance, Lilly v. Virginia and Crawford v. Washington and Melendez-Diaz v. Massachusetts.

And then Jonathan Turley reports on the Thomas Gravely whose lawyer, in closing argument, well, here's how the Charleston Daily Mail reports it:

Ed ReBrook, Gravely's defense attorney, called no witnesses. But he summed up his case in a dramatic closing argument to jurors during which he called the victims "tramps" and "whores."

"You cannot rape the willing," ReBrook said. "They got in those automobiles with the intention of having sex for money.

"I would be horrified if any of the women in my life were raped, but I'm talking about decent, honorable women," ReBrook said, and then dramatically raised his voice. "Not whores who have sex with many, many men for money."

Assistant Prosecutor Fred Giggenbach immediately asked Kanawha Circuit Judge Tod Kaufman to stop ReBrook, but he did not.

"They are whores," ReBrook persisted. "That is a perfectly usable word in the English language.

"Finding this man guilty of rape lessens the dignity of every other woman," ReBrook said. "What they have done is turn sex into something disgusting.

"They are not like your wife, your girlfriend or your daughter," he said. "They are street tramps. And what happened to them was, at least in part, their fault.

Of course, it's complicated because Gravely's victims were, in fact, prostitutes and that's how he got to them. But the defense - it's OK to rape whores - that's the real point of the rape shield law. And the law doesn' cover it.

Most criminal laws and procedures are enacted with good intent. We want to protect the innocent and prosecute the guilty, to condemn what should be condemned, to feel safe and actually be safe,** to ensure fairness for all. But good intent doesn't make good law.

The law that says I can't mount a defense that would impugn the integrity of the person accusing me of a crime may have been enacted with the best of intentions. But it's bad law.

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*For a contemporary variation on the theme, consider the case of the woman raped at gunpoint in the garage of a Connecticut Marriott while her children looked on. After the rapist entered a guilty plea and was sentenced to 20 years in prison, the woman sued Marriott claiming that their negligence in policing their property led to her rape. Marriott's defense, to great public outrage, included the assertion that it was her fault for not being more careful. See, e.g., here.

**Once, when I was speaking about post-9/11 heightened security procedures at airports and how they don't make us any safer, I was asked in all seriousness by a lawyer in the audience what I would replace those procedures with that would make him feel safe on an airplane. I said (more politely than this) that there was probably nothing I could do to improve his mental health.

Good intentions - Bad Decision

Jonathan Gresham was put on trial twice for having oral sex with E.T., a 14-year-old girl. Generally, the Double Jeopardy Clause would prohibit that. There's a pretty good case for saying that it should have prohibited it this time, though the court of appeals didn't buy it - and it's not particularly clear that Gresham's lawyer made it.

Gresham was a security officer at a public housing complex in Dayton, Ohio. The jury apparently believed the evidence that one evening he arranged to meet with E.T., and they had oral sex. She told her aunt. He got arrested and charged with Unlawful Sexual Conduct with a Minor.

During the trial, Gresham testified in his own behalf. His lawyer asked him if there were complaints about E.T. that were investigated. His answered.

A resident that I don’t recall who the resident was, informed me that she was sexually active in the building and that she was a drug addict and that she was trading sex for drugs.

The prosecutor objected and called for a mistrial. The judge, deeply troubled by the answer, granted the request, sent the jury home, and rescheduled the trial.

Here's the relevant law.

The crime Gresham was charged with makes it an offense to having sex with someone between the ages of 13 and 16 if he knew or should have known the person's age. It doesn't matter who started it, whose idea it was, who seduced whom. You just can't do it. There's apparently no dispute that Gresham knew E.T.'s age. So the only legal question is whether they in fact had oral sex. Whether she was a drug addict who traded sex for drugs all day just doesn't matter. If she gave Gresham a blow job, he broke the law. So the allegation is irrelevant if it's meant to suggest a legal defense.

On the other hand, if she's a drug addict and prostitute, then her testimony might not be worth much. Her story about telling on Gresham because she was deeply troubled by the sex they had wouldn't seem particularly believable. And if she was being investigated, then turning the tables on the authorities and making her a victim might serve her purposes. She would have had a motive to make up the story. That might well make the information relevant not to the charge itself but to her credibility.

On the third hand, there's the rape shield law, a part of the rape statute, and applicable to certain other offenses under an evidence rule, which says that, in trials for those offenses,

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Admitting the allegations about E.T. would violate that statute if Gresham were being tried for one of those offense, but he wasn't. Still, the point, one that has some social value and seems sensible, is that there's something offensive about accusing a victim of bad behavior. The courts frown on that.

Finally, on the fourth hand, there's the hearsay rule. Hearsay is a legal quagmire, but the idea is simple enough. Unless there's some exception that applies (and there are dozens of exceptions), statements made out of court aren't admissible in court in order to prove the substance of the statement. So, for instance, "Fred told me that Joe shot him" won't normally be admitted into evidence at Joe's trial for shooting Fred.

Everyone in this case was deeply upset by the hearsay. Except it wasn't hearsay because Gresham wasn't saying that E.T. was a drug addict and prostitute. He was saying that there had been complaints about E.T. being a drug addict and prostitute. It's a subtle distinction, perhaps, but not even a close call in this case. But nobody - including it seems Gresham's lawyers - noticed it.

The trial judge was horrified by what Gresham had said.

My problem isn’t just the hearsay part of it. My problem is the bell is rung and there’s now accusation [sic] right now flying out there that are completely unfounded, completely uninvestigated, completely inappropriate and inadmissible in this case.

The prosecutor took a hint and asked for a mistrial. The judge agreed, dismissed the jury, and announced that the case would be tried again.

That's where the whole double jeopardy thing kicks in. After all, the state had taken a shot at trying Gresham, then the state asked to stop the trial and start over. Double jeopardy ordinarily prohibits that sort of thing. But it happened. A different judge did the trial this time, and Gresham was convicted.

In his appeal, Gresham argued that the state had no right to try him a second time. The court of appeals disagreed. It said in a correct statement of the law, that there's an exception to double jeopardy protections where the judge orders a mistrial out of "manifest necessity" (which the court is careful to explain is less necessary than actual necessity; think of it as close enough to necessity for goverment work).

In this case, the court said

Gresham’s testimony, however, that he was told by an unnamed resident that E.T. was sexually active and trading sex for drugs was clearly hearsay prohibited by Evid. R. 802, as well as inadmissible character evidence under Evid. R. 404(A)(2).

Except, again, the statement was clearly not hearsay, nor is it prohibited under Evidence Rule 404(A)(2). And, in fact, if it were prohibited by those things, the prohibition might be unconstitutional in violation of Gresham's rights under the Sixth Amendment.

But the court wasn't done.

The trial court, however, found that the taint from the objectionable testimony was so great that a curative instruction would not suffice. Under the circumstances presented in the instant case, we agree.

Got that? The jury was so tainted by the mere fact that the allegation had been made against E.T. that they'd never have been able fairly to judge the evidence and decide whether Gresham actually got that blow job from her.

Rape shield laws - and, again, despite the best efforts of everyone involved to make it apply, neither the rape shield law nor the expansi0n of it in Evidence Rule 404(A)(2) is actually implicated here - were adopted out of noble purposes. A victim of sexual assault shouldn't have to be victimized again in court by having her character trashed by the guy who assaulted her.
The downside of those laws is that they assume that the person claiming to have been assaulted actually was. And they interfere greatly with the ability, the constitutional right, of the accused to demonstrate that the accuser has no credibility. Good intentions make bad law.

This is even worse, since the law doesn't apply.

And then there's the fact that the same allegations came in during the second trial and the jury somehow found Gresham guilty anyway. Doesn't matter, the court of appeals says. It was still manifestly necessary to stop the first trial because of the allegation.

[T]hat fact, standing alone, is irrelevant to our review of the first judge’s decision to grant a mistrial in light of the highly inflammatory and prejudicial hearsay testimony offered by Gresham.

Let's review.

It was OK to try Gresham twice because the court had no real alternative. The hearsay and rape shield violation (which violated neither the hearsay rule nor the rape shield laws) was so irrelevant and prejudicial that no jury could have convicted Gresham once they heard it. And it's wholly irrelevant to that decision that Gresham was convicted by a jury that heard it. And because the only way to give the state a fair trial was to stomp on the defendant's protection against double jeopardy, they did that.

I don't know what did or did not happen that night. And I'm not particularly concerned with whether Gresham should have been prosecuted for what E.T. said happened. But the guy got shafted by the courts. That happens too much in sex offense cases - especially when the purported victim is a kid and everyone assumes the guy must be guilty.