Harvey Weinstein was convicted in a LA courtroom this week of rape. In a hotly contested trial, he was convicted of some counts and acquitted others.
In this essay a former prosecutor argues in the NY Times for the increased use of 404b evidence in sex crimes trials because of how difficult it is to get a conviction. ( for you robed readers, that's evidence of other crimes, wrongs, or bad acts, supposedly not usually admitted).
But limitations have their limits. As former prosecutors who handled cases involving many types of serious crimes, including sexual assault, we think trials for sex crimes are different from other trials, and these differences must be reflected realistically in the rules of evidence.
In other words- "sex crimes are different". How long until prosecutors ask for the burden of proof to be lowered in sex crime cases? We are heading in that direction.
We are at a nadir for the rights of accused. Blackstone's hallowed ratio that it is better to have 99 guilty men go free then one innocent woman convicted was long the bedrock of criminal justice in England and then the United States. No more. Now it is the reverse- we are willing to accept wrongful convictions, so long as the Harvey Weinsteins and OJs of the world are convicted. There are 99 articles and op eds decrying the failures of the criminal justice system to convict the guilty, for every single article about the injustice of a black teenager sentenced to life for a crime she didn't commit, or as in the case we wrote about recently, for a young woman sentenced as a juvenile for an excessive term of years.
People have little sympathy for the accused. There is not one potential juror who we interview who truly believes in the presumption of innocence. The next time you pick a jury, as them how many of them said to themselves "I wonder what he did" when they walked into the courtroom for jury selection?
This is going to get worse before it gets better. We are incarcerating more people, for a longer period of time, and mistakes will be made.
More innocent people will be sentenced to prison, and it won't matter to them that they were accused of a sex crime they were innocent of.
In his famous defense of British soldiers, John Adams said this:
We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever..
John Adams, Argument for the Defense, December 3-4, 1770.
You know what's the most disturbing thing about that quotation? There isn't one Judge in the REGJB or in Florida for that matter that would let a defense attorney say that in opening or closing arguments.
Happy Hannukah and when you light a candle, pray you don't get accused of a sex crime you are innocent of.
Coming up: what a hot dog can tell you about your relationship with your clients.