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Harmless error

Here are the facts in last week's 8th District decision in Middleburg Heights v. Bunt:  Bunt and his wife met Kellie Greene, the mother of K.M., a 14-year-old boy, as a result of K.M. and Bunt's stepson being in the same bowling league.  Greene later confided in the Bunts that K.M. was having problems in school, especially with assignments.  Bunt offered to help draw up a computer program that would help keep track of them, and would work with K.M. to do that.  After a meeting, the four agreed on that plan.  In her statement to police, Greene acknowledged that she had sent K.M. to Bunt for "discipline," and that's pretty much what happened:  Bunt paddled K.M. about 60 times, leaving him "sore and in tears."  At trial, K.M. testified that Bunt offered him a choice:  "use a paddle and keep my underwear on, or bare hand, but it would be with my underwear off."  He hadn't mentioned that in his statement to the police.

On that basis, the jury convicted Bunt of assault and sexual imposition, the latter offense, despite being a third degree misdemeanor, requiring him to register as a sex offender for the next 15 years. 

Convinced of Bunts' guilt beyond a reasonable doubt?  Probably not, especially about the sexual imposition charge.  But there's more.

Back in 1994, Bunt, then 17 years old, had been interviewed by Deborah Gurney, a clinical supervisor of an adolescent counseling agency.  At trial, she testified that Bunt told her that he'd manipulated his 7-year-old sister into believing that she'd done something wrong, then promise not to tell their parents if she let him spank her.  He told Gurney that he was sexually aroused by this, and admitted to spanking seven other child victims for sexual gratification.  He also told her that his fantasy was having a mother approach him because she was having a problem with her child, and asking him to intervene, at which point he would become the disciplinarian for the child and spank him.

Well, that puts things in a different light, doesn't it?

The problem is, the question isn't whether the evidence now shows guilt beyond a reasonable doubt.  The court in Bunt agrees that Gurney's testimony, being about an incident which had occurred fifteen years before Bunt's trial, was too remote in time to meet the requirements for "other acts" testimony under EvidR 404(B).  The question then becomes whether admission of the evidence was harmless error.  Two judges find that it was, the other dissenting vigorously. 

One difference between the "hard" sciences and the social sciences is the former's ability to duplicate results:  you can run a precisely controlled experiment over and over, and see what happens.  We don't have the ability, with trials, to go back and see whether a jury would have convicted if certain evidence was taken out of the trial; the appellate judges have to guess at it.  Too often, though, this is done without any real consideration of the State's burden of having to prove guilt beyond a reasonable doubt.  If you exclude the evidence about the 1994 incident, I'd hardly describe the remaining evidence as overwhelming proof of guilt.

But there's more.

Another social worker testified that she interviewed Bunts in 2006 about two other incidents involving an 11-year-old boy and 12-year-old boy.  Bunt told her that the 11-year-old lived in his neighborhood and spent several nights at his apartment, and that he'd "smacked" him on his buttocks while the two were wrestling.  The 12-year-old had stayed at Bunt's apartment for two months while his foster mother was ill, and Bunts told the worker about one incident where he picked up the boy while the boy was undressed and put him in the bathtub, then looked in the bathroom while the boy was bathing.

Well, that's just a tad too Michael-Jackson-creepy for my tastes, and here proximity in time isn't a problem for holding it admissible under 404(B), which the court does.   So the question now becomes, if you consider the 2006 incidents but ignore the inadmissible 1994 stuff, does that constitute "overwhelming" proof of guilt? 

That's a tough call, since the supervisor's testimony about her 1994 interview is fairly similar to the social worker's testimony about Bunt's statements 12 years later.  In fact, I think the former's is a good bit more damning, especially Bunt's confessions of being sexually aroused by the spankings, something that's missing from the social worker's account.  Let's put it this way:  I'm not sure I would have made the "Michael-Jackson-creepy" comment if I hadn't already known about the prior incident.

And, as the dissent points out, there's the matter of emphasis.  The first two witnesses were not the boy and his mother, but the clinical supervisor and the social worker.  Given their extensive examination, and the details they disclosed, it's easy to make a case that this simply overwhelmed the jury.  Keep in mind, too, that it's not as though the jury got a curative instruction to disregard testimony about the 1994 incident; despite the appellate court's finding that the trial judge shouldn't have let it in, the fact is that the evidence was admitted, and fully considered by the jury.  And note that K.M. never testified as to Bunt's getting any apparent sexual gratification out of the spankings; that evidence was provided solely in the testimony about the prior incidents.

As I see it, Bunt is at best a close call on the harmless error issue, and I think a reasonable argument could be made that there shouldn't be a close call on a harmless error issue; if reasonable people can disagree as to whether the remaining evidence is overwhelming proof of guilt, it most likely isn't.  Here's a thought:  it requires the concurrence of all three judges on an appellate panel to reverse a conviction as being against the manifest weight of the evidence.  Why not the concurrence of all three judges to find that error was harmless?

It's not going to happen, of course, and I probably shouldn't complain too much about the outcome in Bunt.  I've seen cases where appellate courts have found that error was harmless because there was "sufficient" other evidence to support the conviction.  Still, when in a full 20% of the cases handed down by the 8th last week, the appellate court concludes that there was error, but that it was "harmless," that suggests that the doctrine is getting an overly extensive workout.

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