What can we make of the Duke Lacrosse Rape case?

I don't have a huge amount of time to blog about this right now, but the case clearly cries out for a comment or two from a public defender perspective. Let me make it perfectly clear. Had these gentlemen been from a poor minority neighborhood, had they played a less genteel sport than lacrosse (like, say, basketball), there is a very good likelihood that these people would've gone on trial a long time ago, or at the very least they would have taken a deal on the case.

Why?

First of all, they would have spent the whole pretrial period in custody. They would not have been able to go on TV all the time, looking dapper, standing by their lawyers as the lawyers proclaimed their innocence on national TV.

The typical response from society - oh, these poor guys, what they must be going through, would be totally different if they were poor and minority. Instead, it would've been, what do you expect a bunch of minority basketball players from the ghetto to do? That is, if the case had even been publicized.

Usually, publicity is bad for defendants, unless they're innocent (or the case is extremely weak), like in this case, or the Kobe Bryant case. In these cases, publicity continually points out the weaknesses in the case, and acts a constant pressure point against the prosecutor to show how the initial inclinations against guilt are wrong, and how the person really is guilty. This means that they are constantly scrambling, responding to press leaks, and things of the like, instead of sitting back and watching the defense scramble.

Rest assured, had these been really poor people, there would have been no real presumption of innocence like there was in this case, there would have been no national lamenting that they were being railroaded.

Late discovery? HA! I had a DA one time not turn over any of the evidence that my client was innocent until after the preliminary hearing - a preliminary hearing where she put on evidence and opinions that were completely contradicted by the evidence she suppressed from me until after the preliminary hearing. Why did she do this? Because she can, because she was an evil DA who would do anything she could to get a conviction, and because no one really does anything about it. The DA in the Duke case faces ethics charges, let me tell you, you can probably count on one hand the number of California DAs who have ever even been referred to the State Bar for ethics charges for things like this, let alone actually charged, let alone actually punished.

And finally, depending on the lawyers they got, there is a very good likelihood that these people would've been convicted had they been poor minorities. Without the real presumption of innocence, with the full resources of the state against them, with the word of even just one shaky witness, that is sometimes all it takes. Hell, with the way the California Courts rule on hearsay and things of the like, the prosecution maybe could've gotten a conviction here without even putting the victim on the stand. And there would be absolutely no one to yell and scream about it - except the defendants' families, and no one really listens to them anyways.

And finally, had the DNA evidence come back a year or so later exonerating the defendants, despite the DA having withheld it, plenty of corrupt California Courts would've found that it was "harmless error." After all, just because someone else left semen in her didn't mean that these people didn't rape her.

So, while letting out a nice sigh of relief that these innocent people were exonerated, just remember, there are dozens, probably hundreds, perhaps more, just like them. Facing charges on extremely weak evidence with over zealous prosecutors and compliant courts that will do nothing to stop them.

This case is not a case that can allow us to breath a sigh of relief, and to say "this proves that injustices are caught," but rather one to say "what if," and to wonder what might have been.

"Prior Bad Acts" and the Phil Spector Trial

It is an axiom of the law of evidence in criminal law, for centuries, that one's character cannot be used against one in a prosecution. The theory is that people should be convicted of crimes based on the evidence of these crimes, and not based on their character. Consider how easy it would be to convict just about anyone of a heinous crime if all one needed to present at trial was the fact that this person was a really bad person who had done bad things in the past.

For example, Charles Manson (generally the poster child for evil) is currently housed at Soledad Prison in California. Presumably, people get killed there with some degree of frequency. Assume that someone dies there, and it's unknown who did it, but perhaps Manson had the opportunity to do it. Imagine how easily a prosecutor could get a conviction against Manson if all he had to do was present evidence of what an evil guy Manson is? There would be no need for real evidence linking Manson to the crime, because most juries would be inclined to convict Manson no matter what.

However, California courts have, over the years, stripped away at that theory. Under Evidence Code Section 1101(b), and due to several California Supreme Court rulings, more and more prior bad acts of defendants are now admitted for purposes of proving that they committed the present offense.

A couple of years ago I had a murder case that was a "whodunnit." No issue at all as to motive, or intent, just who did it. There were serious doubts that the defendant was actually the one to commit the crime. The prosecution tried to present evidence that my client was convicted over a decade earlier of robbing a liquor store with a gun in order to prove his intent was robbery in this case. It was outrageous, and the judge fortunately forced the prosecution to accept a stipulation as to all elements of the crime except identification in lieu of letting in the evidence (the prosecutor would have much preferred to have brought in the priors, being far more harmful to my client than the admission that the crime was committed for purposes of robbery). Of course, the case hung, and was set for retrial. Another lawyer did the 2nd trial, and this time the judge let in the priors, and this time the defendant was convicted in mere minutes, and sentenced to life without parole plus an extra 200 years or so for good measure. the case was reversed (thank goodness, the person really was innocent).

Which brings me to Phil Spector. As noted in this LA Times article, the prosecution is bringing in evidence that Spector has menaced women with guns in the past, and harbors animus towards women in general, treating them with contempt and violence. The situation here is different, though, and actually points to areas in which the courts have probably correctly ruled that this type of evidence is admissible.

In the Spector case, the defense has alleged that the victim killed herself, or that the incident was an accident, or mistake, but that Spector never intended to kill the victim. The prosecution seeks to present these prior incidents to show that this was no mistake, or accident, but that this is consistent with Spector's pattern of activity. Consider the contrast with the case I had, where the only issue was "whodunnit," and the prosecution was putting on this evidence as straight character, for purposes of identification. Here, the evidence would rebut Spector's claim that what happened was not a volitional act on his part. This would be a more correct interpretation of the law (I'm convinced that the judge in my case was either really stupid, or really evil, or both - and he was reversed).

There is little danger in the Spector case that he will be falsely associated with the case due to this evidence - it was at his house, and she died with his gun, and he was the only one there. He has presented a scenario of how the crime took place that is at odds with his past. It's not like he's saying "I didn't do anything," and they seek to use evidence that he slapped his wife before to show that he's done "something" in the past. Here, the victim is killed in a relatively peculiar way, and the suspect denies involvement by trying to exculpate himself with a specific story. However, it's been shown that has acted in a very similar manner to this before.

It's a close call, but not that close. Judge Fidler has let some of this stuff in previously, I'm convinced that he'll let this in as well. If he excludes it, it will only be due to the lateness of the discovery, and probably not do to the relevance objection.