That Adversary System? It's Worse in Arizona - with Update

A week and a half ago, I wrote about Asuncion Avila-Villa.  She's facing a death penalty prosecution in Butler County, Ohio, and the prosecutor there is trying to control her defense. 

But before we get back to that (and we will), I need to fill you in just a bit about Butler County.  In particular, I want to tell you about Spotlight Jones.

His given name is actually Richard, and he's the Sheriff of Butler County.  He's known as Spotlight because he seeks it, and of course, he finds it.  His hero, it's said, is John Wayne, and I'm told he has a life-size cardboard cutout of the Duke in his office.

But he's a technological John Wayne.  He's managed, for instance, to put mug shots of all the inmates at his county jail on line.  Along with the charges that they're facing.  Sort of a permanent perp walk.

He doesn't do the pink underwear thing or have a chain gang, but he does have inmates commit suicide at an alarming pace.

And then there's the immigrant thing.  Here's Spotlight now.

The arrow, of course, points to the jail.  And here's one of the billboards he's put up around the county.

He specializes in raids on Hispanic businesses and on places that employ Hispanics. Not surprisingly, Spotlight  isn't particularly interested in tracking down undocumented Canadians.  Equally not surprisingly, U.S. citizens who happen to be Hispanic have been leaving Butler County for less threatening places.

The accusations of profiling are rife, and there's a whole lot of serious documentation to indicate that the complaints don't just come from a few disgruntled folks.

Anyway, Avila-Villa, you'll recall, asked the court for funds to hire a forensic psychiatrist.  She asked that she be allowed to have the request heard ex parte (in front of the judge alone, without the prosecutor there).  But the prosecutor objected.
No, the prosecutor argued, you have no right to tell the judge privately what your defense theory will be and what things you're investigating.  We can keep that stuff secret because we have a government funded budget.  But since you have to ask for money from the county, we get to know how you plan to use it and why.  (OK, that's not how the prosecutor put it, but that's the essence of the argument.)

But the prosecutor wasn't done.  You want a really good expert.  Nope.  Judge, don't let them have that.  All Avila-Villa is entitled to is a barely passable expert, and you shouldn't let her have more.  If she wanted a better expert, she should have been rich.  (OK, they didn't put it exactly that way, either, but that's the essence of the argument.)  Hell, read it for yourself.

Avila-Villa - State Response  

And as we know, the judge agreed.

What I said when I wrote about this before is still right.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.

So, you ask, if Gamso thinks he was right then, and if nothing's changed, why is he writing about it again?

Maricopa County, Arizona, naturally.

OK, I'll back up.

William Miller is on trial for his life in Maricopa County.  He's accused of killing five people, two of them children, in March 2006.  In July 2007, in a jailhouse interview, he told Jim Walsh of the Arizona Republic that he killed one of the five but that an accomplice (someone he refused to name) killed the others, including both children.

"I'm confessing to being responsible for them, yes," Miller, 30, said from his cell at the Fourth Avenue Jail.

"It's a loss of life. I sit there before I go to bed every night. I think about what could have been done differently."

At the time, he was intending to plead guilty.  And he was content with the prospect of a death sentence.   Apparently, that's all changed.

In April this year (if I'm reading the on-line docket correctly), Miller filed a motion asking for an ex parte hearing to address "defense investigation into mitigation matters."  Family members of the dead objected.  They claimed that under the Arizona Constitution and also under Arizona statutes, they have an absolute right to attend any hearing the defendant can attend.*  The trial court didn't buy it.  The rights of statutory "victims" can't trump the rights of a criminal defendant, the court said.

So the "victims" went to the court of appeals.  On Thursday, the court ruled.

Oh, sure, a defendant has a right to an ex parte hearing on mitigation matters.  But not a right that trumps the all important right of victims to be present.  Yeah, the court said, we know that if there's a conflict between the defendant's rights and the rights of victims a defendant should win.  But the Miller didn't say on the record what it is that he doesn't want to reveal (i.e., he didn't announce his secrets publicly), so really, there's no conflict. Victims win.

Morehart v. Barton  

And so we return from Maricopa County, Arizona to Maricopa Butler County, Ohio, where about the best thing you can say is that the victim's rights provisions of Ohio law are not so deeply offensive as the provisions of Arizona law.

And that Avila-Villa has an appeal pending.

UPDATE
I've seen the documents now. The pending appeal in Avila-Villa's case is not over the ex parte and funding issues.  So that ruling will stand, at least for now, in Butler County.

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*The so-called victims have, in fact, filed memoranda opposing many of the defense motions.  The already wobbly adversary system, one designed (though not applied) to favor criminal defendants, comes close to total collapse when the accused must defend himself against both the government and the vengeful bereaved.

An Adversary System, If You Can Keep It

Her name is Asuncion Avila-Villa.  Her five-week old son, Israel Santos, was murdered.  His body was discovered in a trash can.  She is charged with aggravated murder and death specifications for killing the boy.  She's also been charged with gross abuse of a corpse, tampering with evidence, and unlawful sexual conduct with a minor (the alleged father of the boy).  (See here, for instance.)

She is scheduled to go on trial in September.  The grand jury appended death specifications to the aggravated murder charge, so her life is at stake.

It shouldn't need saying, but Avila-Villa is indigent.

Of course, nearly (not quite, but nearly) all of those who face capital charges are indigent.  They get appointed counsel for trial and appeal (and except in Alabama, apparently, for at least one collateral attack on their convictions).  And they get, after a fashion, funding for necessary investigation and expert assistance.

For the most part, and to the surprise of nobody who really pays attention to these things, the funding for counsel - and for investigators and experts - is generally inadequate.  And it's a struggle.

Those represented by public defender agencies are at the mercy of the agencies' budgets - which are commonly determined in large part by state legislatures that are not particularly enthusiastic about providing money to help those the government wants to incarcerate or kill.  Those represented by appointed counsel are commonly at the mercy of a judge - who may run for election and doesn't get any great public support by paying out taxpayer cash to those who are trying to help those the government would incarcerate or kill.

When the money comes, it's a struggle.

You have to explain to the judge exactly why you need this investigator or expert.  You have to explain to the judge precisely what you expert the person to do, how much it will cost, and why it's necessary to your defense.

Across the aisle (metaphorically, anyhow) sits the prosecutor.  As I said the other day, the prosecutor has an office staffed with assistants.  The prosecutor has the police, the local crime lab, the state crime lab, the FBI crime lab, a comparatively unlimited budget for experts and outré testing and evaluation.  We have what the court in the spirit of fair play (and constant concern for the public's dissatisfaction with paying us out of its tax dollars) is willing to allot.  It's rarely fair, and pretty much never even.

But here's the thing:  We have a constitutional right to present a defense which includes the right to that which is necessary to put on a defense.  It's in the Sixth Amendment and in Section 10, Article I of the Ohio Constitution.

OK, that's the set-up.  Sorry it was so long.

Now, here's the thing, and it brings us back to Asuncion Avila-Villa.  Her lawyers know they need the assistance of an expert forensic psychiatrist.  They need someone who can examine her and explain to the jury just - well, it depends on what the expert learns.  But that's the defense case.

Let me repeat that, and you'll see why in a few paragraphs.  That's the defense case.

OK, one more time: The defense case.

You know, when the state says it wants to check your client's DNA, it doesn't ask you which lab you'd like it to use for the testing.  When it's looking for an expert on gangs (it's planning to use one in Avila-Villa's case), it doesn't ask who you'd recommend.  When it's trying to decide on the charges to bring, it doesn't ask whether you'd prefer a felony or a misdemeanor.

We have what's known as an "adversary system" which means the two sides face off against each other.  It doesn't mean that the state gets to choose the defense strategy - or the defense lawyers (though the state seems to have managed the latter in a Georgia capital case).  And it sure doesn't mean that the prosecutor can tell the judge which experts you ca and cannot hire.

And yet.

Janice Morse reports for the Cincinnati Enquirer.

Defense lawyers had lined up a nationally known expert to testify for a Butler County woman facing a possible death sentence if convicted of killing her infant.

But now they will have to find someone less expensive following a judge's ruling clamping down on funds Monday in Common Pleas Court.
After prosecutors objected to the additional expenses in the case of Asuncion Avila-Villa, 26, Judge Andrew Nastoff refused to grant funds beyond the $12,500 he already approved.

Defense lawyers have already spent some of that money - they won't say how much - on travel expenses to research their client's history in her home state of California and for an initial consultation with a local psychologist.
Nastoff's ruling leaves Avila-Villa's lawyers searching for a different, lesser known expert than Dr. Phillip J. Resnick of Cleveland.
Resnick has played a role in many high-profile court cases across the nation. He served as a prosecution consultant in the case of serial killer Jeffrey Dahmer and in the Oklahoma City bombing cases but worked for the defense in South Carolina's Susan Smith child murders case and in the drowning of five children by Andrea Yates in Texas. He is considered an expert in infanticide, the slaying of infants.

Let me be very clear and precise here.  No snarkiness.  No hyperbole for the sake of making a point.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.

Dissing the First Amendment

I was going to write about Tennessee State Senator Tim Burchett (R. Knoxville) and his plan to make it a felony for a criminal defense lawyer to dis a crime victim.* As reported by Cara Kumari of WSM-TV in Nashville,

While lawyers have called this bill unconstitutional, Burchett said it is the right thing to do.

"If I was member of the legal community, I would quit wrapping myself up in the Constitution and start thinking about what's right," said Burchett.

There goes that pesky Constitution thing again. Always getting in the way. Fortunately, Kumari explains to the people of the Volunteer State that Burchett's proposal really might be a problem.

The reason it may be unconstitutional is because the burden of proof in a criminal trial is with the prosecution.

In fact, while she's right about the burden of proof, she's wrong about why such a law would be unconstitutional. It would be unconstitutional because it would violate the most fundamental of all rights afforded to criminal defendants: The right to present a defense. Oh, and it would be a hell of an infringement on free speech, too unless it was mighty carefully circumscribed.

As Gideon says, "The Constitution is a wet blanket."

But you know, it doesn't manage to smother all fires. Especially those that burn up books. (How's that for a segue?)

Consider the Texas Department of Criminal Justice and the books it's banned during the last five years. We know about this, and about the details, because Scott Henson over at Grits for Breakfast noticed that the Austin American-Statesman's Eric Dexheimer actually went through the lists.

The Statesman reviewed 5,000 banned books. That's 1,000 a year, which is whole lot of banning, but it's probably just a small percentage because, you see, unless someone appeals, the book is just put on the forbidden list and there's no ready way to get the skinny on it. But if there's an appeal, well, then, there's a decision. That's what happens 1,000 times a year.

Grits focuses his attention on both important and popular works. He notes that Texas prisoners can't read books by some National Book Award winners and finalists, Pulitzer Prize winners, even Nobel Prize winners. Quoting the Statesman, he notes

Harold Robbins, Pat Conroy, Hunter S. Thompson, Dave Barry and James Patterson belong to the don't-read fraternity. Mystery writer Carl Hiaasen does, too, as do Kinky Friedman and Janet Fitch, whose "White Oleander" was an Oprah's Book Club selection.

And he mentions that books with paintings by da Vinci, Michaelangelo, and others are banned.

The Statesman digs deeper, exploring how it is that pictures of naked babies with angel wings are allowed, but if there are no wings? According to Tammy Shelby, "a program specialist for the prison agency's Mail System Coordinators Panel,"who denies many of the appeals,

If he is naked, the Baby Jesus would be denied.

After all, you don't want those child sex predators all riled up.

The real problem, of course, is that none of this is coherent. Books are, as Shelby readily admits, banned without the censors having read them.

When a book arrives at a Texas prison mailroom, an employee first checks the database to see if the book is already prohibited. If not, said Shelby, "he'll flip it over and read the back." If that provides insufficient information to make a decision, "they scan through it looking for key words" or pictures that would disqualify the publication.

Let's see. They examine the book in order to see if they can "disqualify" it. And they don't read it, just check for "key words." If this seems backwards, well, it is. But that's the nature of book banning. It's about fear and superstition. And the decisions reek, as these things tend to, of arbitrariness.

Many of the rejections — "Fun Under the Swastika" — seem reasonable: Race-related violence is a real concern in prisons. Yet the prohibition has been applied broadly: "Friday Night Lights," the best-selling book about Texas football, was prohibited because of its exploration of racial themes in Odessa.

In October 2007, censors rejected "Coming Through the Fire," which was reviewed on Amazon.com: "In this small but eloquent work, Duke University professor of religion and culture C. Eric Lincoln calls for a 'no-fault reconciliation' between the races." The following month, censors approved "The Hitler We Loved and Why," published by White Power Publications.

But that's the nature of censorship. It's the foolishness that goes with the territory. Random person notices something, and it's plucked from a shelf - or a cell.

The Texas prison report comes on the heels of a pair of school book bannings that have gotten some attention.

In Culpeper County, Virginia, they pulled the "definitive" edition of The Diary of Anne Frank (the version containing material that her father cut from the edition he released and that was the only one available for decades). As both Turley and Ken at Popehat noted, the book had been assigned to 8th graders but was pulled after a parent stumbled across and objected to Anne's vagina.

There are little folds of skin all over the place, you can hardly find it. The little hole underneath is so terribly small that I simply can't imagine how a man can get in there, let alone how a whole baby can get out!

Phew. Saved those 8th graders. The ones who have vaginas won't have to think such things about them and the ones who don't have vaginas now won't think anything at all. Surely banning the book will prevent teenage pregnancy. Certainly, the school district is apparently pleased that the dangerous passage was brought to its attention. Here, according to the Culpeper Star-Exponent, is what Jim Allen, "director of instruction for the school system" had to say.

“What we have asked is that this particular edition will not be taught,” Allen said from his office Wednesday morning. “I don’t want to make a big deal out of this. So we listened to the parent and we pulled it.”

There was no outpouring of community sentiment to get rid of the book. Focus on the Family didn't threaten a lawsuit. Pat Robertson didn't say anything about pacts with the devil or looming natural disasters. And, of course, the school didn't choose to defend educational standards or academic choice. A single parent complained and the school district was delighted to pull the book. It's the way things should be, Allen said.

“I’m happy when parents get involved with these things because it lets me know that they are really looking and have their kids’ best interest (in mind). And that’s where good parenting and good teaching comes in.”

Meanwhile, on the other coast, it's an elementary school. And a dictionary. This time it was Patrick at Popehat who caught the squeal.

You know, the problem with dictionaries is that they actually have, er, words. And definitions. The Menifee Union School District thought it would be a good idea for more advanced 4th and 5th graders to have access to a collegiate dictionary. Big mistake.

It seems a parent was volunteering in her son's classroom, and rather than working with the kids, was intrigued by this whole lexicon idea. One thing led to another and, wouldn't you know it, she found the entry for "oral sex." Of course, they pulled all the copies of that vile Webster's New Collegiate Dictionary off the shelves.

But wait. The Southwest Riverside News Network website posted an update.

Students at one Menifee elementary school will have the option of using an alternative dictionary rather than one that was temporarily removed from the classroom because of language a parent found objectionable.

Superintendent Linda Callaway announced Tuesday that a Menifee Union School District review committee met and determined that both the Merriam-Webster’s Collegiate Dictionary Tenth Edition and another dictionary will be available for use by fourth and fifth graders.

“We are aware that there may have been misinformation and/or misunderstanding with regard to this issue and it is important to clarify that at no time did the District state that the dictionaries were banned from the classroom,” Callaway said, reading from a prepared statement.

“We are confident that the Review Committee’s decision offers a reasonable resolution to this issue and there provides closure,” Callaway said during a school board meeting Tuesday in Menifee.

That's much better. Now there's a dictionary for kids who don't want to risk finding dirty words and one for those willing to take a chance.

Then there's Jason Rogers, who has three children in the school district. According to the original story on swrnn.com, he doesn't think the dictionary is a problem.

“You have to draw the line somewhere. What are they going to do next, pull encyclopedias because they list parts of the human anatomy like the penis and vagina?”

Well, yeah.

That's what they do at TDCJ.

And in Culpeper, Virginia.

But don't let them hear any complaining about it in Knoxville, Tennessee.

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* That's not 100% fair. The news report actually says that the felony would be for "unproven insinuations" about crime victims, not for dissing them. Wait. There's really no difference, is there?

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.