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The elephant in the corner

In June of 2002, Kerry Perez tried to rob a drive-through liquor store in Dayton.  (Is it just me, or did you do a double-take at the term "drive-through liquor store"?  But I digress...)  Things didn't go well; the owner put up a fight, resulting in a gun battle in which Perez's accomplice was the only casualty.  A year later, Perez decided to take down the Do Drop Inn, a bar in Springfield, and the results weren't as fortunate:  Perez killed one of the customers, Ronald Johnson.

Perez apparently spent the next few days telling his family and anyone else who would listen about how he'd killed a man, so it came as little surprise to anyone save him when he was arrested and charged with aggravated murder in the latter shooting.

But that's not all Perez had done.

Everybody needs a hobby, and Perez apparently decided his should be robbing bars; in addition to the two above, Perez confessed to five others.  The latter became a focal point of the decision in State v. Perez, where last week the Ohio Supreme Court affirmed Perez's conviction and death sentence.  The trial court had allowed evidence of the five other robberies on the theory that they were admissible to refute Perez's claim that he didn't intend to kill Johnson:

According to the state, the nonfatal robberies show that when Perez committed robberies, he was in control of himself and did not harm compliant victims. The only two robberies in the series during which Perez fired his weapon were the Beverage Oasis and Do Drop Inn robberies, and those are also the only two during which Perez faced a victim's noncompliance.

The court devotes most of its opinion to the issue of whether the judge's instructions to the jury sufficiently advised them that they were to take the other offenses into consideration only in determining the issue of intent, rather than as proof that Perez had actually committed the murder he was charged with.  We'll get to that in a minute, but what's arguably overlooked is whether the evidence had any real relevance.  The inferential connection -- Perez didn't shoot people sometimes, he did shoot people other times, therefore when he did shoot them he must have intended to do so -- isn't the strongest, and it's further frayed by the fact that the issue of intent wasn't really in dispute.  Perez didn't claim that he the shooting was accidental; at best, he seemed to be contending that he didn't go into the bar with the intent of shooting anyone.  The evidence on the point consisted of Perez's statement to a jail visitor that "the man would just not shut up, so I shot him" and his statement to the police, which was more expansive, but no more exculpatory:

[W]alked in the door, told everybody don't move, everybody get down on the floor. He [Johnson] said I ain't gotta do a goddamn thing you say, nigger, something to that effect. Told him don't move, don't look. He looked and moved and ran his mouth. It cost him his life.  Happened that quick.

Whether Perez intended to kill Johnson when he walked in the door is immaterial; that he intended to kill him when he did was all that mattered, rendering what happened in the other robberies irrelevant.  And evidence admissible under EvidR 404(B) still has to meet the test of 403, whether the probative value is outweighed by the prejudicial effect.  Even assuming the evidence of the other robberies had any value, it's hard to see how any relevance it had would have outweighed the substantially prejudicial effect of letting the jury know that Perez had spent the past year robbing bars.

This brings us back to the limiting jury instruction.  The court's consideration of the utility of telling the jury to ignore the elephant in the corner involved nothing more than invocation of the the tired observation that "the jury is presumed to follow the trial court's instructions."

I made my typically snarky comment about this on Monday, but it deserves more extended treatment.  These types of instructions come in two flavors:  the limiting one, as here -- "you can only use this evidence in a certain way" -- and the curative -- "forget you heard this."  While the Perez court's holding based on what a jury is presumed to do is the customary outcome, it's by no means the inevitable one:  there are times when an appellate court will realize that the damage is too severe to be remedied by telling the jury to pretend it didn't happen.  This 5th District case from a few years back gives an excellent example of the latter in the context of a Bruton violation -- two defendants being tried together, and the State introducing a statement against one of them, which also inculpates the other, and the co-defendant doesn't take the stand.  The court held that an instruction to the jury that it should limit its consideration of the statement to the person who made it couldn't cure the error of violating the defendant's right to cross-examine the co-defendant about the statement.

Of course, this begs the question of whether the "presumption" that the jury will follow curative or limiting instructions is anything more than a convenient fiction, which in turn gets back to one of my pet peeves, the general unwillingness of courts to take into consideration the extensive empirical research that's been done in the past couple decades on how jurors' minds work.  Studies, a sampling of which can be found here, show that jurors routinely disregard such instructions.  (Interestingly, other research shows that such instructions are more effective if the judge explains to the jury why the evidence is inadmissible or should be used only in a certain way.)

Still... This past summer's Supreme Court's decision in Menendez-Diaz v. Massachusetts, in which the Court held that Crawford applied to laboratory tests, was substantially aided by an amicus brief by the National Innocence Project detailing the problems of unreliability of forensic evidence.  Back in 1954, the Supreme Court's decision in Brown v. Board of Education was based largely on research that had been done on the social and psychological effects of discrimination on black schoolchildren.  I have a feeling that if somebody had filed an amicus brief in Perez with the research showing that limiting or curative instructions usually don't mean diddly, it wouldn't have had the slightest effect on the outcome of the case.

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