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Harmless error and 404(B)

This week, we inched closer to learning whether Carl Morris will get a new trial on charges of raping his 9-year-old stepdaughter because the State introduced evidence that he propositioned his adult stepdaughter right after she got married, ejaculated into a towel after having sex with his wife, and kicked the dog when his wife would refuse to have sex.

The 9th District reversed his conviction in 2010, looking at the paragraph above and deciding that One of These is Not Like the Others, or more specifically, that Three of Those are Not Like the One the Guy's On Trial For.  That's basically the test for what's known as 404(B) evidence.  Normally, evidence of the defendant's prior depredations aren't allowed into evidence; the prosecutor can't prove that the defendant is guilty by showing he's a bad guy.  Rule 404(B) of the evidence rules says that the prosecutor can introduce prior acts to show certain things, like motive, intent, identity, and so forth.  The appellate court held that the above evidence didn't show any of those things. 

The Supreme Court unanimously reversed two years later, but not because it found to the contrary; the 9th District had conducted a de novo review of the issue, and the Supreme Court held that it should have used the abuse of discretion standard.  So back it went, and guess what?  The 9th District held that the trial judge abused her discretion.  See?  That was easy!

Not so much.  The case's latest waypoint in its legal odyssey came in oral argument before the Supreme Court on Tuesday, this time on another bit of minutiae revolving around appellate review:  the appropriate standard for harmless error in the admission of 404(B) evidence.  The 9th District had used the standard for constitutional error, and the State argued that it should have used the nonconstitutional error standard.  That's a big difference.  For nonconstitutional errors, you ignore the evidence that was impermissibly presented, and decide whether there's sufficient other evidence to convict.  For errors of a constitutional dimension, the State has to show beyond a reasonable doubt that the error didn't contribute to the verdict.  Essentially, if you've got constitutional error, the State is going to have to show there was overwhelming evidence of guilt to avoid reversal.

How did the 9th get to constitutional error?  By holding that the admission of the 404(B) evidence undermined Morris' right to a fair trial.  That didn't get much traction on Tuesday.  As Lanzinger and O'Donnell pointed out, that's hardly the brightest of lines; you could make that argument in just about every case where evidence was erroneously admitted. 

The 9th District had somewhat of a point, though.  You could make a pretty good case that 404(B) evidence has a more devastating effect than just about any other kind of evidence:  it's almost impossible to overcome the damage if the jury learns that your client has done something similar to what he's now charged with. 

It's possible, of course, that the court will decide that the rule itself provides the needed bright line, but based on how I saw the argument, there's a better chance that Adam Sandler will take up Shakespearean acting roles.  Still, there was a sense among several of the justices that this was no more than a bump in Morris's long journey toward a new trial; several seemed frankly incredulous at the reasons offered by the prosecutor as to why kicking a dog or hitting on an adult had any relevance to molesting a nine-year-old.  And Pfeifer forfeited any chance he had of winning the Pet Lover's Man of the Year award with this exchange:

PFEIFER:  You ever kick a dog?

PROSECUTOR:  No.

PFEIFER:  You haven't met the right dog.

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