I posted yesterday about the conviction of Cesar Rodriguez for first degree manslaughter in the death of his 7 year old daughter, Nixzmary Brown. While I abhor the father’s treatment of his daughter, the mechanism of prosecution of even despised defendants remains a concern. Having stumbled upon this post at Crime & Consequences, comment is now required.
Gruesome pictures bring jury to tears as they see the room where 7-year-old Nixzmary Brown was bound to a chair, starved and forced to urinate in a litter box. Reported by The New York Times yesterday, Cesar Rodriguez was convicted of manslaughter for killing his stepdaughter. The jury wanted to convict him for murder but felt the prosecution “didn’t really give [them] enough.”
The saying that a picture is worth a thousand words is never more true than at trial. The impact of seeing something horrible strikes at the core of our being, and evokes a human response to right the wrong we see. Prosecutors know this. Judges know this. Criminal defense lawyers know this too.
Cesar Rodriguez was on trial for the killing of his daughter. The fact of poor 7 year old Nixzmary’s death is horrible, something that should invoke a visceral reaction of abject anger in any person.
But this snippet from C&C is entirely different. And it’s exactly what’s wrong with this prosecutorial ploy, an appeal to sympathy, a plea to the jury to hang the defendant, not for the commission of the crime charged but for his general blame-worthiness as a father and human being. This is very wrong.
Rodriguez was a terrible, abusive parent. One might well question his worthiness as a human being, given the nature of his treatment of his daughter. But that’s not why he’s on trial. The pictures described by C&C have everything to do with Rodriguez’s lack of humanity toward his daughter, but nothing to do with the question of whether he murdered her. He is on trial for a discrete act, not for being a bad parent or human being.
Note that there is relevance to other offenses, such as endangering the welfare of a child, a minor offense in the scheme of a murder trial, but no mention is made of this in the C&C post, and the implication is that Rodriquez’s guilt can be inferred from his generally bad treatment of his child.
The fact that this C&C post ignores any evidence of criminal conduct (or lack thereof) and prefers to characterize Rodriguez’s conviction in terms of his horrific but irrelevant general treatment of Nixzmary serves as a warning to all. This is a smear. Sure, it’s designed to get the bad guy, but it’s still nothing more than a smear.
There are some, perhaps many, who believe that the end justified the means. I do not. This snippet was very wrong, and speaks quite poorly of a prosecutorial mindset that will use any appeal to sympathy and prejudice to reach its goal. Beware.
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Scott, I’m usually in the choir you’re preaching to. I admire that you champion the causes of defendants like Cesar Rodriguez by bringing needed attention to improper trial tactics by prosecutors and by standing up to those who would let strong emotions and prejudice determine the fate of an individual.
But I can’t help playing devil’s advocate for this post. You claim the “pictures described by C&C have everything to do with Rodriguez’s lack of humanity toward his daughter, but nothing to do with the question of whether he murdered her.” I have to disagree. Rodriguez’s “lack of humanity towards his daughter” is directly relevant to his mens rea at the time he caused her death. No doubt the evidence of the horrific abuse is unfairly prejudicial beyond proving only mens rea, and perhaps it’s even substantially more prejudicial than probative. But I know of very few judges who would have the courage to keep such evidence out under a Rule 403 analysis. Whether we like or not, this type of evidence is allowed in murder cases all over the country.
If I understand your point though, your criticism is directed at C&C focusing exclusively on this evidence in the snippet, and then contrasting this evidence with the jury’s verdict. Whether intentional or not, this juxtaposition certainly implies that the jury got it wrong. Is it this implied criticism that you’re objecting to, or I have totally missed your point?
In any event, I think two points are important here:
1. The prosecution is routinely allowed to introduce extra-prejudicial evidence like this all the time, while defendants are often restricted in attempts to introduce similarly prejudical evidence. Courts should be blind as to the proponent and shouldn’t be in the business of helping the prosecution obtain convictions.
2. The Rodriguez jury heard this prejudicial evidence, yet denied the prosecution the second murder conviction it sought in this case. The jury’s refusal to be swayed by this evidence gives hope and suggests that jurors can be fair even in the face of highly disturbing pictures.
Geez, Todd. You think you could have made that a little longer?
Anyway, you’re correct about my criticism of the manner in which C&C presented its post. As to the substance, the defendant’s mes rea only come into issue if there is evidence that he engaged in the act, otherwise its pure propensity which is (theoretically) not permitted. Here, there was no evidence that he struck the fatal blow, so his mental state is immaterial.
And finally, you are right that few judges would have the balls to keep such photos out. And that, amigo, is the other reason for the post. Hooray for prejudicial pictures. They work so darn well.
Oh, I see now. The 3000 character thingy is a LIMIT, not a goal. (Can you say “balls” on the internet?)
lol.