Thursday, April 30, 2009

Appeals Court Restores Conviction And Common Sense


Ernest C. Gardner, 40, was sentenced to seven years in prison and seven years of extended supervision in 2007 for second-degree sexual assault.

[Wisconsin] Circuit Judge Paul Lenz had ordered a new trial because prosecutors failed to tell Gardner's attorneys that a neighbor sexually assaulted the girl years earlier. The appeals court said there was no evidence trauma from the prior assault motivated the girl to falsely accuse Gardner.
I'm glad Judge Lenz's order was overruled, but I'm appalled that any judge thought it was appropriate to require the prosecution to give out this kind of personal information about the alleged victim.

Past victimization is not related to the veracity of the current case. No defense attorney should be allowed to have information about a rape victim's previous victimization. Besides not being relevant, the potential for unethical use of this information takes my breath away. Knowing the defense had this information and worrying about how it could be misused could terrify a victim out of testifying.

The defense strategy with this information could have been about using it to reinforce bigotry. Too many people will assume that 2 crimes like this can't be committed against the same child for a variety of reasons. Because of that assumption they could see this previous victimization as proof of a false report or as reasonable doubt. This is a, "What are the odds?" kind of thinking. If they can't fathom something then it can't be true.

Defense attorneys have tried to use past reports of rape which didn't result in a conviction to make the jury believe that the previous report was a false one. Thankfully, this evidence gets ruled inadmissible when the burden of proving that there was a prior false report is rightfully placed on the defense.

For anyone who agrees with Judge Lenz then you also need to agree that all past crime victimization in non-sex crimes cases must be turned over to defense attorneys. If past victimization is relevant then it is relevant across the board.

Any defense strategy that is acceptable in a sex crimes case must be acceptable in all non-sex crimes cases.


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posted by Marcella Chester @ 8:16 AM   0 comments links to this post


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