Tuesday, May 10, 2011

Rule 404(b) errors get defendant a new trial

Prosecutors like propensity evidence. Defense lawyers do not. Propensity evidence is excluded under Federal Rules of Evidence 404(b), but there are enough exceptions to drive a truck through. The real battleground for this is the district court, which has discretion to admit or deny the defendant's prior bad acts. But sometimes, the Court of Appeals overrules the district court. This is one of those cases.

The case is United States v. Curley, decided on April 25. This case provides a nice summary of Rule 404(b) standards and reminds us how tricky these issues can be. The Court of Appeals does not grant criminal defendants a new trial very often, yet the errors here were made by a trial judge who used to be the United States Attorney, so he knew the rules of evidence. But, like I said, those rules are not always easy to apply.

Curley was convicted of stalking and harassing his wife. Curley had a lot of prior bad acts, and so did his brother. The district court allowed the jury to hear this evidence, and the jury threw the book at Curley. Here's the evidence that came before the Second Circuit (Chin, Wesley and Jacobs):

In January 2008, the police discovered in Curley's car three black powder rifles, ammunition, a bulletproof vest, a ski mask and a last will and testament that would leave all his belongings to his children and asked his sister to take care of his children.

In August 2006, Curley grabbed his wife while she was holding their infant son and would not let go.

In 2005, he pushed his wife into a wall while she was pregnant.

In 2001 or 2002, he shoved his wife and banged her head against the floor.

Also, in 1990, Curley's brother beat up Curley's wife, and Curley pressured her not to call the police.

The trial judge allowed the jury to hear all of this evidence. No wonder Curley was convicted. Curley gets a new trial, because the trial court abused its discretion on some of this evidence.

While you cannot admit evidence to show that the defendant is a bad person and is likely to commit crimes again, it may come in for nearly any other purpose so long as it does not unfairly sway the jury. The jury was allowed to hear that Curley was abusive to his wife in 1991, 2001/02 and 2005 because "Curley's abuse of Linda in August 2006 was part of or inextricably intertwined with the charged conduct" as it "was directly relevant to his intent and her fear." The Court adds, "where the charged conduct involves domestic abuse, a spouse's history of domestic violence is relevant to show intent to harass or intimidate his partner ... Although the incidents pre-dated the charged conduct by as much as fifteen years, collectively they demonstrate a patter of activity that continued up to the time of the charged conduct." Not quite propensity evidence, but close, but not too close to render it inadmissible.

Here is where the district court got it wrong: Curley's brother's bad interactions with Linda, i.e., beating Linda before Curley pressured her to lie about it in court, was inadmissible because it "was not sufficiently similar to the charged crimes to allow the jury to reasonable infer Linda's fear." Also, the brother's conduct "did not parallel any of the underlying conduct and this evidence would unduly sway the jury and serve "no real purpose other than to show that Michael -- not Curley -- had a bad character," allowing the jury to speculate that "the 'Curley clan' was coming after Linda."

So what about the stuff in the car during the traffic stop? The government argued that it allowed the jury to believe that Curley was going to pull off a murder-suicide and kill his wife. This is too speculative, the Court of Appeals says, and it does not meet the high admissibility standard for bad acts that post-date the charged crimes. "The record contained insufficient evidence to permit the jury to reasonably infer that Curley expected Linda to be dead when he wrote the will" and "the jury had no reason to determine that Curley planned for Linda to die before him." As the trial court's errors are not harmless, in part because the government highlighted this evidence during summation, Curley gets a new trial.

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