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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