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What's Up in the 8th

As I mentioned on Friday, appellate courts routinely hold that juries are presumed to follow an instruction to disregard certain evidence, despite the lack of any empirical support for its efficacy.  The panel in State v. Johnson finds itself similarly enthralled with the amnesia-inducing powers of the curative instruction.  Johnson was charged with drug trafficking, and the trial court, over defense objection, allowed the detective to testify that Johnson had sold drugs on previous occasions.  Johnson's lawyer asked for a sidebar, after which the judge told the jury to disregard the evidence just admitted.

Now, one might think that knowing that Johnson sold drugs on prior dates would go a long way toward persuading the jury that he sold drugs on this one.  Not so.  The panel acknowledges that the judge shouldn't have admitted the testimony, but without even engaging in a harmless error analysis -- and the erroneous admission of 404(B) evidence has to be harmless beyond a reasonable doubt -- fluffs it off by concluding that the jury must not have considered the evidence because, after all, they were told not to.

I have a quote I put in my briefs to deal with this situation:  "If you throw a skunk into the jury box, you can't instruct the jury not to smell it."  US v. Dunn, 307 F.2d 883, 886 (5th Cir. 1962). 

You're welcome.

Johnson also argues that the evidence was insufficient to convict him, a contention that founders on the fact that the police found the marked buy money on him.  Reminded me of a preliminary hearing I had years and years ago, where upon hearing the detective testify that he found the marked buy money on the defendant, my client turned to me and heatedly protested, "They didn't tell me the money was marked!"

They never do ...

As I've mentioned before, several recent cases, such as this one, have held that the rape shield statute doesn't apply in child sex cases.  And there's some logic to the analysis:  rape shield statutes were enacted to prohibit the "she's a slut" defense, and that's really not applicable to child molestation cases.

Logic or not, those decisions get their smackdown in State v. Jeffries.  That issue, the panel declares, is controlled by the Supreme Court's opinion in State v. Boggs.

This is my 2,358th post on this blog.  I just checked, and I have never discussed the Boggs decision.  So I will now.

It's stupid.

Here's what Boggs says:  the defense has to let the court know that it is going to cross-examine the alleged victim about a prior allegation of rape that she made which turned out to be false.  The court then has to conduct a hearing - a Boggs hearing, of course - to determine whether there was any actual sexual activity.  If there was, you can't admit it, since the rape shield statute bars evidence of prior sexual activity.  But if no sexual activity had taken place, then you could introduce the evidence.

Now, while you're chewing on that, let me break it down for you.  Let's say that you're on trial for rape, and you're contending that the sex was consensual.  You would think that evidence that the woman had previously falsely accused someone she'd had sex with of rape would be relevant, but it's not even admissible.

I think it's time to go after Boggs.  The Supreme Court's decision two years ago in State v. Jones involved the issue of pre-indictment delay, but there's some stuff in there that might be helpful here.  The issue in Jones was what constituted actual prejudice, and what the court ultimately held was this:

 Actual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state's evidence and bolster the defense.

If the defendant suffers actual prejudice from the loss of such evidence, it's hard to argue that he's not prejudiced by its exclusion.

In any event, whatever the journey in Jeffries, it arrives at the right destination.  The charges arose from events which occurred when the girl was between 12 and 16, and she had also claimed that she was molested by her brother while they were in a foster home and she was 5.  There's no indication that the allegation was false, and there's no remote relevance of that to this offense.

The 8th's decision last week in State v. Jones provides more proof that youth is wasted on the young.  Although the opinion doesn't mention Jones' age, the girl is decidedly 14 or 15, and, according to her, the two have sex "over three hundred times" during an 18-month relationship.  Jones' claim that none of this happened would have been perhaps been viewed more credibly had the pair not gotten "his and hers" tattoos.

You need to know about State v. Weaver.  Weaver got stopped, was drunk, had a gun in his car, and gave the cop a fake name.  He's charged with improper handling of a firearm, a felony, and falsification, sandwiched between two counts of OVI.  He asks for treatment in lieu of conviction on the firearm and falsification charges, and the trial court grants it.    

The State shuffles across the street, asking for leave to appeal so they can argue that since the judge can't give treatment in lieu on the OVI charges - the statute specifically excludes it - he can't give ILC on anything.  The court grants leave, then rejects the State's argument:  the judge can grant ILC on whatever it can grant ILC on, regardless of what other charges there are.

This is of some value if you're creative, but it's not a real big deal:  if they've charged your client with five counts of felony-two drug trafficking, it doesn't do you much good to know that the court can grant ILC on a sixth count of felony-five possession.  But be creative.

Finally, if you get a letter from a former client who's still doing time, enclosing an affidavit from a co-defendant exonerating him, send him a copy of State v. Johnson.  Eleven years after his conviction of aggravated murder, Johnson files for a new trial on the basis of newly discovered evidence:  an affidavit from his co-defendant, saying he didn't see Johnson with a gun.  I don't know if this has ever worked, but it doesn't here. 


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