Acquittal Won’t Save Him From The Registry

Appellate Squawk can say more with a pic than I can in a thousand words.

Comes now New York’s highest court with the holding that an accuser’s trial testimony constitutes clear and convincing evidence of the truth of her accusations, even though the jury found her not credible and acquitted the defendant of those charges. 

This is the sort of sophistry that only a lawyer can fathom, like “acquitted conduct” in federal sentencing.

In a 6-1 opinion, with only the redoubtable Judge Rivera dissenting, the Court upheld the lower court decision putting the defendant on the internet Sex Offender Registry for the rest of his life based on acquitted charges.

The defendant was acquitted of the three felony charges, convicting him on the misdemeanor of sexual abuse in the second degree. The evidence at trial made clear that the jury  found the testimony of the complainant inadequate to convict. So naturally, the trial judge found the testimony sufficiently credible to sentence the defendant as a Level 2 sex offender,

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York’s Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 20 years.

If this makes absolutely no sense to you, seemingly reducing a jury trial to pointlessness, the explanation requires an appreciation of legalistic gymnastics.

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton’s classification, noting that it was supposed to be based on “clear and convincing evidence,” a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction. It is possible, in other words, for an alleged crime to figure in a defendant’s risk level even when there is not enough evidence for a guilty verdict.

To be convicted of a crime, a jury must find that the crime was committed by the defendant beyond a reasonable doubt. To be classified as a Level 2 sex offender, however, the judge need only find that the crime was committed by the defendant by the lesser test of clear and convincing evidence. Thus, the acquittal at the higher standard doesn’t preclude the finding at the lower standard. It’s sound technical logic. But it’s nonsense.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the “clear and convincing evidence” standard, which requires “a high degree of probability” that an allegation is true. A.B.’s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

“The verdict can only be understood as reflecting that the jurors did not fully credit A.B.’s version,” Rivera writes. “The acquittals here powerfully reflect the unreliability of A.B.’s testimony. As the trial judge recognized, the jurors were presented with two versions and they had to choose one. In other words, they either believed A.B. or they did not when she testified that defendant had penetrative and oral sex with her in his room.”

Testimony is like pregnancy, it’s either credible or it’s not. If it was credible, then the jury would have found the defendant guilty. They didn’t. They rejected the testimony, finding it incredible, and, indeed, there was good reason for the jury to do so.

But this was a nasty case, with extremely unsavory allegations, and the trial judge found the complainant’s testimony sufficiently pregnant to hold that it satisfied the “clear and convincing evidence” standard even if the jury found it incredible.

Courts abhor sex offenses, despite the absurd claims of the screamers to the contrary. And the defendant here wasn’t pure enough to overcome the taint of the allegations, so they threw him to the wolves.

Naturally the Court doesn’t admit that it moves the goalposts for sex cases. But these days, when it comes to accusations of sexual misconduct, the standard of proof is that they were made. The Court is simply going with the flow — which by definition, is downhill.  

So what if the defendant was acquitted? He was still convicted of sexual abuse 2, and isn’t that enough reason to hate him? Why would the New York Court of Appeals take the chance of all those angry women calling them mean names by not being as harsh as possible when the defendant was obviously a horrible, disgusting person whose life should be destroyed.

After all, there was an accusation, and only a bench of shitlords would not believe it was true. Or a jury.

Besides, the sex offender registry isn’t punishment at all. Just a precaution for the sake of the children. Surely you don’t hate the children and want to see them molested by this acquitted defendant?

27 thoughts on “Acquittal Won’t Save Him From The Registry

  1. REvers

    And next, a Title IX adjudication will suffice to put somebody on the registry. You just know somebody will try.

  2. Skink

    But there was this:
    “The People argue that because “[a]n acquittal of criminal charges is not equivalent to a finding of innocence” (Reed v. State of New York, 78 N.Y.2d 1, 7, 571 N.Y.S.2d 195, 574 N.E.2d 433 [1991] ), the jury’s acquittals are of no consequence because SORA courts apply a lower burden of proof than a criminal trial.”

    It’s only one of the oldest tenets of criminal law, adopted from the common law of England when the country was formed.

    Anyone that thinks clear and convincing is some radically lower standard than beyond a reasonable doubt has never tried the standard. It is somewhat lesser, but it is the civil equivalent. The difference is legally microscopic. To twist the standard and apply it to what amounts to sentencing, at least for my partially-trained eye, is nothing less than constitutional rape.

    1. SHG Post author

      Burdens of proof are one of those legalish things that fascinate non-lawyers, but tend to be remarkably misleading. I’ve very critical of people who try to assign numerical values to them, except for preponderance, as it’s clearly false. No one has ever been able to come up with a comprehensible definition of beyond a reasonable doubt, and courts use it as a rhetorical device to achieve whatever result they want.

      There is the tiniest crack between clear and convincing and beyond a reasonable doubt. Just enough to ram it in between. Constitutional rape indeed.

        1. SHG Post author

          I vividly remember reviewing FIRE’s Shibley’s broadside about Title IX, which was passable on writing and substance, but included percentages.

          On the other hand, there are points that are cringeworthy in there, such as putting percentages to standard of proof (beyond a reasonable doubt is 98-99%? Says who?). While it’s understandable that Shibley seeks to make law understandable to the lay reader, when he uses methods like attaching percentages where none exist, aside from the preponderance standard, it’s the sort of trick that lawyers will find unpalatable. Sure, we get it, that the only way to convey the message quickly is to use a trick like this, but replacing one myth with another for convenience is disturbing nonetheless.

          Clearly false. Like 98-99%.

  3. B. McLeod

    A logic-defying feat of political jurisprudence (worthy of a musical Peeps diorama, had it been slightly earlier in the season).

  4. Skink

    That’s my point. Non-lawyers can get it wrong: they’re supposed to, and that’s why they come to us for the explanation. But this kind of nonsense eludes meaningful explanation to non-lawyers. They take two equivalent standards from different legal areas; make believe the civil standard is much lower for the sole reason of allowing review of evidence that is otherwise irrelevant; sprinkle magic dust that blinds both logic and basic constitutional principles; then declare the sauce tastes fabulous.

    It don’t taste fabulous. According to the recitation by the dissent, this defendant has all the makings of a bad guy. We don’t know if 20 years on the registry is different for him than life, of if the registry will have any meaning in five or ten years. But twisting this pretzel just to get this defendant is flat-ass wrong and does real damage to the law.

    I’m grabbing my copy of the Constitution and going back to the swamps.

  5. Mike

    Maybe the jury had some other reason for the acquittal. Maybe they did believe her but thought the law was unjust.

    How would we know?

  6. Fyodor

    Separate from the burden of proof issue, isn’t there a sixth amendment right to jury resolution of the allegation before someone can be put on the registry?

      1. SHG Post author

        Relevant, shmelevant. It was one of JB’s best, and I refuse to take that away from him.

        1. John Barleycorn

          The hole in the BAR, when it needs “drilling”, doesn’t matter how (I guess?).

          The Tiny Moments of layered fail, wells and to the bench.

          Plenty of room?

          It isn’t round, and more to the point, is the love sleeping or are all of you CDL’s just asleep!

          P.S. Welcome to the esteemed one’s back pages Skink.

    1. SHG Post author

      Putting aside that I don’t (and have made that point dozens of times before) accept that premise, living the “regulatory” life ain’t all it’s cracked up to be even if it wasn’t punitive.

      1. MonitorsMost

        Nor do I. But once that premise is accepted by the higher ups, what happened in this matter is consistent with the premise. Under the accepted premise, Apprendi doesn’t apply so we don’t need a jury to find this aggravating factor beyond a reasonable doubt. Which means a judge can make a determination based on a lower standard of proof. This is merely a symptom of the problem.

        1. SHG Post author

          There is no question that the lower standard of proof applies, but that’s what Judge Rivera addressed, that it fails regardless. But as to the premise being accepted, even that’s not quite accurate. Even if its regulatory, it still imposes a discrete burden. A burden is a burden, and even they don’t pretend it’s not a burden.

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