Bad Facts Make Bad Law

There is no one more idealistic than a criminal defendant.  The words “due process” become their mantra, believing with all their heart and soul that there really is a Santa Claus, and he’s wearing a black robe.  Unfortunately, Virginia, you are more likely to find the grinch sitting on the bench.

A recent decision by the New York Court of Appeals makes clear, yet again, that the state of the law takes a backseat when there is a horrific crime involved.  In
People v Jackson , 2007 NY Slip Op 01424, involving the rape of a minor with essentially no physical evidence to show that a rape occurred, the trial court permitted a witness, the baby sitter, to testify that the defendant had earlier raped her (what we like to call a prior uncharged crime) and while doing so said that the minor victim was lucky because if the baby sitter wasn’t there to be raped, he would have raped the minor.  Wow.  I’m sure he thought carefully before speaking.

And so, the court explained that even if it was wrong to have introduced the prior uncharged crime, it was harmless error.  Harmless error?  Where there’s no physical evidence that a crime occurred?  Harmless?  Do I need to spell this out for you?

In a concurring opinion, Justice George Bundy Smith, whose tenure on the court has come to a close, disagreed that the error would be harmless, but held that there was no error at all.  Per Judge Smith, the statement was admissible under Molineux, a fascinating case that has been the cause of more prosecutorial mischief than any other by providing a back door to introduce enormously prejudicial and untrustworthy evidence under the guise of showing “intent”, etc., and the uncharged rape was admissible as “background” so that the statement would make sense to the jury.  Well, it is certainly more important that a prior uncharged crime be introduced lest the jury hear a statement admitted as proof of future intent than the prosecution be required to actually prove that a crime occurred.  Are you getting the idea that the back door is bigger than the whole house yet?

The shocker of this decision is that Judge Pigott, a midnight appointee by Governor Pataki, dissented.  He alone held that this was sheer, unadulterated “propensity” evidence, intended to do nothing more than show what an evil human being the defendant was and that he was the sort inclined to commit this horrible rape of a minor.  Who would have bet on Judge Pigott being the dissenter?

So are the other judges a bunch of knuckleheads?  Are they disinclined to follow the law?  Are they incapable of even understanding the law?  Don’t be ridiculous.  There was a child raped.  There was no doubt in their minds who raped the child.  And the law had to bend a little to make sure that this defendant ended up where he belonged.  Judges are only human.