Jury unanimity in child sex cases
Probably one of the most difficult cases to defend is one involving child abuse allegations which occur over a period of time. For one glorious moment - well, a few years, actually - the 6th Circuit's 2005 decision in Valentine v. Konteh provided a path to reversal, at least in cases involving a "copy-cat" indictment: multiple counts, identically worded and covering the same time frame, alleging that the defendant had engaged in sexual contact with the victim. Valentine held that the failure to identify specific incidents raised a double jeopardy problem: if the state were to bring additional charges for the same period, there'd be no way to tell if they were the incidents the jury had already convicted Valentine for.
The 8th District followed Valentine in a few cases, then began drawing distinctions: it didn't apply where the evidence at trial provided specific evidence pertaining to specific counts, or where the bill of particulars identified the relevant facts for each count. Then two years ago, the 8th held that Valentine had no precedential value, and was bad law besides. The 12th District had come to the same conclusion a year earlier.
But the 10th District's decision in State v. V.W. points to another problem with indictments in child sex cases stretching over a period of time. V.W. was indicted for three counts of rape and three of sexual battery involving his teenage daughter. Instead of indicting on separate counts of gross sexual imposition, though, the prosecutor alleged in a single count that V.W. had engaged in various acts of that nature over a two-year period of time.
The jury didn't think much of the rape and sexual battery counts, acquitting V.W. of those. It did convict him of the gross sexual imposition count, but the 10th District didn't think much of that, reversing the conviction and sending it back for retrial.
A few months back, in State v. Adams (discussed here), the Supreme Court vacated a death sentence. Adams had been sentenced to death, based upon the jury's finding on each of the four specifications: that he had committed an intentional killing in the course of aggravated robbery, rape, kidnapping, and aggravated burglary. The majority found the evidence of the aggravated burglary insufficient, and decided that this nullified the death penalty. Why? Because some jurors might have found that the killing was committed in the course of the robbery, but not the other three crimes, while others might have found the killing was committed only in the course of the rape, and so forth. In other words, the court found that where the defendant could have committed the offense by alternative means, the evidence had to be sufficient to establish each of those means, unless there was some way, such as special interrogatories, to determine that there had been jury unanimity as to at least one of the means.
The 10th District applies the same principle of jury unanimity. The daughter had testified to several incidents on the gross sexual imposition count, at different locations and different times. While all twelve jurors obviously concluded that something had happened, there was no way to tell if six had found that the sexual contact occurred at the grandmother's house but not the stepmother's house, while six concluded it was the other way around.
The trial court should have specifically instructed the members of the jury that they needed to agree not only as to appellant's guilt, but also as to which factual incident supported the conclusion that he was guilty.
Noteworthy here is that the defense didn't request that instruction, or object to the general instruction on jury unanimity; the court reversed on a plain error review.
There are two basic ways to win an appeal: show that the procedure was unfair, or that the jury got it wrong. Because of the great deference the appellate courts show to the jury's verdict, the second one is tough, but the first is a good bit easier if you can plant some doubt in the court's mind about the second. That's probably what happened here. Just about everybody in the girl's family came in to testify that she was an incorrigible liar, and the jury obviously had some serious problems with her credibility, as evidenced by the acquittal on the six most serious counts. And the panel could, and did, conclude that the trial judge's having to give a Howard charge was an indication that they were wrestling with the gross sexual imposition count as well.