Inverting Blackstone

It's called the "Blackstone Ratio" after William Blackstone who said it was

better that ten guilty persons escape, than that one innocent suffer.

It is a lovely idea.  One we pay homage to while patting ourselves on the back about the wonders of our Beyond a Reasonable Doubt standard of proof for a criminal conviction.  And one we don't mention as we issue a celebratory oopsie when we release a wrongfully convicted, innocent person and claim it shows how well the system works.

It's also a fantasy.  For all the noble assertions - reaching back into history centuries before Blackstone and up to the present in academic discourse and jurisprudential ideal* - we don't really believe it.  Ask your neighbors.  Ask your co-workers.  Unless they happen to be criminal defense lawyers, and maybe even then, they'll look at you as if you're a lunatic.

Still, we aspire.  At least, we did.

* * * * *

Enter the American Law Institute.** Institutionally respected (and influential, which is more important), the ALI consists of some 4,000 academics, lawyers, and judges (invitation only, please) who among other things drafts "Model" laws that tend to be adopted, with only slight variation, around the country.  In particular, ALI is responsible for the Model Penal Code.  Taught in law schools, what the Model Penal Code suggests as, er, model, states commonly adopt as law.  

Of course, ALI has to keep tweaking the MPC.  That's good, since it allows them to amend stuff that turns out to have deplorable consequences.  And it gives them a chance to add new crimes since, for instance, we didn't have cyberhacking in the old days.  (I don't actually know whether the MPC includes cyberhacking as a crime.  Nor, frankly, do I care enough to see if the answer is available somewhere that isn't behind their paywall.)  Of course, the tweaking also keeps them in business, and like every institution, ALI is deeply concerned with maintaining its relevance - and income.

But then . . . 

So for the past few years, ALI has been working on a new version (they call it an "updated" version of 

Article 213 of the Model Penal Code, which was ahead of its time when approved by ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.

But what is it, exactly, that made the old version unreliable? Probably bunches of stuff. It turns out that in the old version unless there was force or some form of coercion it was not a crime for sex "between professionals (mental health providers, lawyers, executives, etc.) and those under their supervision or in their care." You know for a doctor to have sex with a patient or a lawyer with a client or the CEO with the company's VP for handcuff design or whatever. Ooooh. Damn. Actually, in the regulated professions, that's pretty much a no no anyway. You could lose your license. Not enough punishment, though, since you couldn't also lose your freedom.

And of course the tweaking cranks up the sentences.  Because in 1962 we didn't think all sex offenses deserved LWOP followed by lifetime registration and matches on the front lawn to make it easier to burn down the registrant's home.

But I'm quibbling and ignoring the real news which is the criminal law adoption of Mattress Girl as a mascot for the new crime.  Elizabeth Nolan Brown at Hit and Run:

To this aim, ALI proposes establishing the new crime of sexual intercourse without consent, a misdemeanor, which takes place when a person "knowingly or recklessly has, or enables another person to have, sexual intercourse with a person who at the time of the act of sexual intercourse has not given consent to that act." (This is, of course, absent any sort of force, coercion, or indication the victim protested/resisted, which would remain felonies.) It would also expand the definition of criminal sexual contact to include any unconsented to contact with any body part if the perpetrator intended the touch amorously or lustfully.

How does that work, exactly?  Here's the explanation in a way-too-long excerpt from a memorandum opposing the draft recommendations by some 70 members of ALI (edited slightly for comprehensibility).  It begins with a hypothetical.

A and B are on a date and walking down the street. A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. B does nothing, but six months later files a criminal complaint. A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).
How can this be? The draft explains:

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 

The offense arises because A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).
The draft purports to preserve mens rea as an element of the offense, but that is no comfort because it is proven with barely an effort from the prosecutor: “A, When walking down the street side by side with your date, you knew, or knew of the risk, that B had not expressed prior positive agreement that you could reach out and hold B’s hand, didn’t you? In fact, that’s exactly why you were “timid” about it, right?”
Of course, A does not have to testify but A will have great need to testify because of the shifting of the evidentiary burden that is caused by the “positive agreement” standard. Note that A is still guilty even if they were both wearing gloves. Section 213.0(5) (“clothed or unclothed”)
Consider the same couple, but now B responds to the criminal hand-holding by pausing to kiss A on the cheek. A remains guilty since there is no mechanism for retroactive consent, but now B is also guilty because A has not expressed prior positive agreement for this particular escalation. Under this scenario, the actions of both A and B would satisfy the elements of the offenses. Thus, they would be adjudicated as sex offenders, would be required in many states to register as such and would suffer the other collateral consequences of conviction for a sex offense.

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 

Ain't life grand.

OK, that's ridiculous. And fortunately there's no prosecutor who would proffer charges like that. Except that they would.  Plead to hand holding and we'll drop the more serious groping charges. Hey, it's just a little thing.  A kiss is just a kiss.

But here's the nub.  None of it is an accident.  The drafters understood, announced up front that they didn't care about snaring the innocent as long as they upped the odds of catching the guilty.

[T]he appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition. (Discussion Draft No. 2, Substantive Material, at 53).

Of course, a legal standard requiring the affirmative expression of consent to sex will—inevitably—entail many false negatives, in the form of findings of unwillingness when in fact passionate desire was present. But the contrary standard now prevalent in American law will—just as inevitably—entail many false positives, assumptions of willingness and subsequent sexual intrusion when such intimacy was entirely unwanted. Section 213.2(2) reflects the judgment that the harms that arise under the latter standard present far greater reason for concern. (Id.).

Ah, yes.  Better that ten innocent persons suffer, than that one innocent escape.

Hear that creaking sound?  It's Blackstone turning over in his grave.








-------------------
*See Alexander Volokh's "n Guilty Men."
** The ALI's self definition:

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.

Naming Names

Some people remember faces.  Some names.  I'm a face guy.

Introduce me to someone today and unless there's some compelling need for me to make notes of the name, I'll remember all sorts of things about her tomorrow, but probably not her name. Or his.

And so what?  Aside from a little social awkwardness, it mostly doesn't matter.

Words make a difference, of course, they matter.  (What else would I say?  I'm an old English professor fergodssake.)  But my subject here isn't generic words.  It's far more specific.  It's names.

Juliet called the question.

What's in a name? That which we call a rose
By any other name would smell as sweet.

Well, yeah.  But if you want other folks to know you're talking about roses it's probably better not to call them snap dragons.  Because names matter too.

Partly it's that names signal more than just identification, identity.  Who we are is tied up with what we're called.  (There are reasons many married women in this society choose not to adopt their husband's surname, just as there are reasons people elect to change their names.) And what we're called can be, well, names matter.

There are lawyers who fight tooth and nail to prevent their client from ever being called "defendant" because it suggests that they have some obligation to defend.  They don't, of course.  The entire burden is on the government to prove.

Occasionally a judge will actually grant a motion to prevent prosecutors from calling someone a "victim."  After all, there isn't a victim if there wasn't a crime.  And until the jury says there was a crime, there wasn't.  But if that person is called a "victim," then guilt is presupposed.

And of course, there's the whole thing about dignifying people with their names.  "Mr. Jones" is a mark of respect.  "Boy" is an insult.  "Nigger," at least from someone white, is worse.

There was a judge who could never remember anyone's name.  "Madam Prosecutor," he would call the prosecutor.  Mr. Defense Lawyer, he would call defense counsel.  "Mr. Defendant," he would call the defendant.  Everyone felt insulted until they understood it was his odd way of being polite.

All that is by way of introduction to a side issue in the Jerry Sandusky train wreck.  A side issue, but one that's generating a fair amount of attention.  Enough so that Arthur Brisbane, the "Public Editor" of the New York Times, decided to devote his column in today's paper to it.

THE NEW YORK TIMES generally does not publish the names of sex crime victims. But a Nov. 22 article about one boy in the Jerry Sandusky case at Penn State contained biographical details that effectively identified him for anyone who knows how to search the Web, according to critics and the boy’s lawyer.
Michael Boni, the lawyer for Victim 1, as the boy is known in the grand jury report, said The Times should have exercised greater restraint, adding, “These guys knew it would out the kid.”

Maybe. See, the major media (all of them) have that same general policy, subject to exceptions.  Why? Brisbane again.

[I]t is the fear of exposure that often discourages victims of sex crimes from reporting them in the first place. Dean Kilpatrick, an authority on sex crime victimization, told me that public exposure of victims in high-profile cases reinforces this fear.
“Most victims, based on the research, are very reluctant to report,” said Mr. Kilpatrick, a clinical psychologist at the Medical University of South Carolina and director of its National Crime Victims Center. When they are asked why they don’t report the crimes, he said, “some of the top concerns are: ‘I am afraid,’ ‘I don’t want other people to find out,’ ‘I am afraid that people will blame me for what happened.’ ” 

OK, a decent motive.  We want people who are victims of criminal assault, sexual or otherwise, to report it.  When we do things that embarrass them unnecessarily if they report, they're less likely to report.  That's logical, and it's a seemingly fair social policy determination on the part of the media.

Except it's only seemingly fair.  In fact, when you think about it for a bit, it's dangerous and, although it's easy to toss the term around in this era of Scope and Grope and indefinite detention based on government hunches and Steven Seagal joining Sheriff Joe in a tank attack on a cock-fighting tournament, unAmerican.

See, here's the thing. 

The people we're protecting, the people we're allowing to have their identities hidden so as to avoid the embarrassment of naming, those people aren't actually "victims of sex crimes."  They're people who claim to be victims of sex crimes.  They are accusers.  Maybe they're telling the truth, maybe not.

There's this other person, of course, who's deeply embarrassed, who's humiliated.  Who's shamed.  Who's reputation is trashed.  Who's understood to be guilty.  Before trial.

He's the one hiding his head during the perp walk.  Because, you know, he's a perp.  And we know that because he was accused by someone who's ashamed to say,

I accuse him.

Instead, there's this passive voice of condemnation.

He did something horrific to someone.

Or maybe not.

Legally not. Not unless the jury says so.  Unanimously.

But we (that's neither the royal we nor the plural for you and I, it's the collective we for the body public) don't give a shit about that.

J'Accuse.

So says Publius.

Hiding for shame.

Brisbane concludes his column this way.

In the case of Victim 1, the details concerning the auto accident and the boy’s athletics added human interest to the story, giving readers a deeper understanding of the boy. Was that reason enough to include them and put his privacy at risk? I don’t believe so. The traditional mandate to preserve privacy is there to protect sex crime victims — a broader social purpose that, in my mind, outweighs the transient benefits of a single human-interest story.

Got that.

The traditional mandate to preserve privacy is there to protect sex crime victims.

And the Times didn't protect, sufficiently, Sex Crime Victim Number 1.  Who might or might not actually be a sex crime victim.

I'm not interested in figuring out they identity of that person who claims to have been victimized.  What I'm damn sure of is that whoever that person is, Jerry Sandusky has far more reason to have had his identity concealed.

• To avoid the real shame of being an accused child rapist.
• To avoid the harassment that follows absolutely.
• To preserve, insofar as possible, the presumption of innocence.

Because it's what's supposed to be the American way.

Which of course we never really much honor except in the breach.

BECAUSE WE WANTED TO: The Raping the System Edition

 Richard Rost, a registered sex offender, once lived within 1,000 feet of a school.  In Ohio, that's not allowed.  He'd lived there since long before it was forbidden, though.  The remedy, under Ohio law, has been for the prosecutor to bring an action to evict him.

Toledo took a different approach.  The City decided to charge him with the crime of maintaining a nuisance.  Essentially, they turned what should have been a simple eviction action into a criminal offense.

Toledo actually did that for a bunch of people.  Most eventually entered pleas, maybe paid a fine, and moved away.  Rost decided to fight it.

He filed a motion to dismiss the case explaining that for a whole bunch of reasons the residency restriction was unconstitutional and was, in any event, improper as applied to him because he'd lived there before there was a residency restriction. 

At one point, the city planned to dismiss the case against Rost.  Then they changed their mind.  A federal court ruled that the residency restrictions can't be applied to people who owned their homes before the law took effect.  While the case doddered along in Municipal Court, the city tore down the school.  They said they planned to build another one on the site, but they haven't actually done that. The Municipal Court Judge said none of that mattered.  He denied the motion to dismiss.

Guilty!

So here's Rost, convicted of a crime for, in essence, living near where a school once existed and might someday again exist.  Was he a danger to a child?  To anyone?  There's no evidence he was, no indication at all.  Did the law really apply to him?  Seemed not.  Didn't matter.

Guilty!

On to the court of appeals.  

Oral argument was in early November.  It's been almost six months.  This morning the court ruled.

Reversed.  There was no crime.

That's good for Rost, of course.  But it raises a question that really ought to be addressed.

Why in god's name did the city pursue this turkey of a case?  If they were looking for a test, trying to see if they could get away with it, you'd think they'd take up the best case they could find, not the worst.  You know, go after a dangerous guy who moved near a school that actually existed.

Didn't do that.

Was it an exercise of pure hubris?  Did they have so much invested in hating this guy (for no apparent reason) that they didn't care about whether what they were doing was simply wasting taxpayer dollars for the sheer embarrassment of being reversed?

Gideon glommed onto the story of Tonya Craft who's being prosecuted for a sex offense that, it seems likely, didn't occur.  As we follow the tale (and please, do go and read about the case - and take the time to read more, going through the links Gideon provides) what's clear is that the prosecutor and judge are simply hurling stones at Craft knowing that any conviction they obtain will be reversed.

Why bother?

The cases aren't comparable.  Craft faces years in prison before the damage of a conviction can be undone.  And she faces an eternity of suffering just from having been charged.  Rost gets off far easier.  But still.

Except, see, it's about sex.

But you know, it's not.  

They say that rape isn't really about sex.  It's about power.

Same with these cases.

DISCLOSURE: Through the ACLU, I was one of Rost's lawyers on the appeal.

Sex, Guns, & Terrorism

The Supreme Court is ready to crank up for the year (actually, it already cranked with the unusual early argument in Citizens United v. Federal Elections Commission). Next week it will be hearing oral argument in nine cases, four of them criminal:

• Maryland v. Shatzer - regarding just how long an invocation of Miranda rights lasts
• United States v. Stevens - where the government asks for a new exception to the First Amendment for videos of animal cruelty (blawged about here)
• Johnson v. United States - concerning the Armed Career Criminal Act and state convictions for battery
• Bloate v. United States - about how to calculate time for purposes of the federal Speedy Trial Act

In the weeks after that, the Court will hear a number of other cases we'll keep an eye on. But the news today is that the court added ten cases to its docket just two days after Adam Liptak wrote in the Times about the Court's "plummeting" docket. Moreover, six of those cases are criminal and all six deserve special attention here:

• Carr v. United States concerns the retroactive application of the federal sex offender registration and notification law. Specifically, Carr asks the Court to say that prosecution for failure to register when the relevant acts predated the law is unconstitutional. Retroactive application of Ohio's law (and a congeries of related issues) will be argued in the Ohio Supreme Court on November 4.
• McDonald v. Chicago asks whether the Second Amendment prohibits the states from unduly infringing the right to bear arms as it prohibits the federal government. The Court decided the federal issue last year in District of Columbia v. Heller, but application to the states remains an open question.
• Holder v. Humanitarian Law Project & Humanitarian Law Project v. Holder are cross appeals concerning the constitutionality of the law making it a crime to provide material aid to terrorists. The always-ripe-for-reversal 9th Circuit said part of the law was unconstitutional and parts were not. The Supremes will decide whether it was wrong about either or both of those decisions.
• U.S. v. O'Brien & Burgess raises a technical question involving application of a sentencing enhancement for use of a machine gun in a crime. But the answer may indicate how the Court, and in particular now-Justice Sotomayor, will continue to view Apprendi/Blakely/Booker-type issues.
• Berghuis v. Thompkins asks whether police can try to talk someone out of waiving Miranda rights.
• Berghuis v. Smith looks at questions regarding a jury of one's peers. That phrase doesn't mean a jury like you, of course. It means a jury that's a "fair cross section" of the community, and that pretty much means that the jury system can't be designed to exclude, say, disproportionate numbers of African Americans. But how do you establish that it is so designed? Smith may say.

As Bette Davis didn't quite say, fasten your seatbelts; it's going to be a bumpy ride.

This one's not a felony, it turns out

I've written here and here about Stacey Anvarinia, the woman who was found guilty of felony child endangering and sentenced to six months for drunken breastfeeding. It turns out that there's good news in her case. She didn't have a camera handy.

As Jonathan Turley noted via Alaska Live which just stumbled across this old story at DallasObserver.com, a couple in Richardson, Texas wasn't so lucky.

Jacqueline Mercado and Johnny Fernandez are Peruvian immigrants. She came first, and they were delighted to be back together after he emigrated. It was also their son's 1-year birthday. To celebrate, they took pictures of themselves and their child. They took them for 1-hour processing at an Eckerd Drugs. (This is before everyone had digital cameras; and it's a damn shame they didn't have one.) The one of their son getting out of the bathtub set off the Eckerd alarm system and the drugstore called the cops. Cops took one look at the picture, next thing you know, they're rummaging through the Mercado/Fernandez one-room home. And they find a photo of the boy breastfeeding.

Kids taken out of the home. Charges of child pornography. Possible 20 year sentence. For the one picture of the breastfeeding 1-year old.

Prosecutors eventually dismissed the case, though they called it a close call. Finally, a week after the story ran in the Dallas Observer, Child Protective Services returned the boy to his parents. After 5 months.

It's a horrible story. If it were unique, I probably wouldn't write about it. Just another example of overzealous cops and prosecutors pursuing their own agendas (agendae?) until the disinfectant of public obloquy got them to back off. Alas, it's not unique.

There is, for instance, the case of 59-year-old Donna Dull who dropped off some film at WalMart. The photos included pictures of her 3-year-old granddaughter in and getting out of a bath. 15 months later, the child pornography charges were dropped. The special prosecutor who dismissed the case said there's no problem; people like Ms. Dull who take innocent pictures will never be charged or prosecuted? Except sometimes.

Then there's Jody Jenkins who took some pictures of his kids, during a family camping trip. Eckerd's. Police. Child protective services. Months of horror and fear.

Then there's this whole set of stories mentioned here.

I'm not arguing in favor of child pornography. It's real and it's a problem. But not every photo of a naked kid (or a suckling one) is porn. Parents take those pictures all the time. Child on bearskin rug is iconic. So is mother giving the breast to her child.

We endow police and prosecutors with enormous discretion, and the damage they can do when the discretion is abused is incalculable. But the real problem here, in these cases, isn't with the cops or the prosecutors (though they could all certainly have exercised some real and sensible restraint). The real problem is with a culture so fearful of predators and so horrified (and yet attracted to) the sexualization of children that it seems to encourage this sort of behavior. (See the sexting cases, which I'll speak of in detail another time, for a clearly related example.)

As we struggle to protect the children, so we demonize the parents. And, of course, the children suffer along with them.

Eleventh District v. Eleventh District

Last week, in the context of judges sometimes surprising you, I wrote this post about Spangler v. State. That's the case in which two judges of the Eleventh District Court of Appeals held (for overlapping but different reasons) that Ohio's current sex offender registration and notification law, the Adam Walsh Act (AWA), is unconstitutional.

But what happens next?

The easy answer is that the Ohio Supreme Court will eventually tell us whether the law is constitutional. As I mentioned in that post, the Ohio Supreme Court has taken in four cases addressing different aspects of AWA and will be hearing them all on a single morning, presumably in the fall sometime. (Full disclosure: I am lead counsel in one of the cases, State v. Bodyke and am counsel for the ACLU of Ohio as amicus curiae in another, Chojnacki v. Dann.) (We tried to get the Ohio Supremes to resolve this mess back in 2007 in a case called Welton v. Dann. They refused then. Now they've got the mess we warned them about.)

But that really misses the point. The appellate courts are supposed to provide guidance to the lower courts and the people in their district. While the Ohio Supremes act on their schedule, waiting for the cases to be briefed, then scheduling argument, then issuing an opinion, the lower courts are dealing with these questions. Some trial courts are declining to enforce AWA while they wait for guidance from Columbus. Others have enforced it. The courts of appeals have, likewise taken different approaches.

But there are opinions out there, and when a court acts, people are supposed to be able to rely on it. Which is what makes the Eleventh District so interesting right now.

You see, in the ordinary course of things, when the court decided Spangler, it would have resolved - unless and until the Ohio Supreme Court said otherwise - the constitutionality of the AWA within thse counties that comprise that cour's base. And since Spangler said AWA is unconstitutional, that would be that.

Except for this.

The same day Judges Grendell,Cannon, and Trapp decided Spangler, a different (though overlapping) panel of three judges from the Eleventh District (Trapp, Rice, and O'Toole) decided State v. Maggy in which they decided that AWA is constitutional. So, at least for now, AWA is constitutional and it is not.

Which raises this question: if you live (or work or go to school or just pass through for three days or more) in the Eleventh District, does AWA apply to you? Yes. And no.

You figure it out.

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.