These days, more than ever, you have to be leery of the company you keep. Two defendants found this out the hard way when they were convicted of felony crimes not for what they did, but rather for what their roommates allegedly did.
In State v. Omot, Mr. Omot’s roommate was charged with drug crimes for having marijuana in his dresser drawer. The evidence showed that the drawer did not belong to Omot, none of Omot’s property was found in the drawer, and Omot never accessed the drawer. A third person who also lived in the house, and who got her marijuana from Omot’s roommate, testified that she never saw Omot use or sell marijuana.
So why did the prosecutor charge Omot, and why did the jury convict him? When raiding the house, the police found a completely unrelated picture of Omot, alone, holding a firearm. This, the prosecutor contended, showed that Omot was “ready and willing to act as an ‘enforcer’ for [his roommate] in a drug trafficking operation.” As a result of this embarrassingly weak guesswork, Omot was convicted as a party-to-the-crime and sent to jail.
Similarly, in State v. Miller, Mr. Miller was charged with sex crimes for having sexual intercourse with a minor. The minor testified that she had sex with Miller and his two roommates in a motel room, and semen evidence was also presented at trial. The DNA expert “could not exclude Miller” as being the source of some of the semen. Miller denied having sex with the minor, but, apparently because the DNA evidence did not prove his innocence, he was convicted and sentenced to nearly two decades in prison.
When additional, post-conviction DNA testing proved that Miller was not the source of any of the semen, and that the semen actually belonged to the “victim’s” boyfriend, Miller asked for a new trial. The trial judge refused, and kept Miller in prison. Why? Because, the judge said, even though Miller didn’t have sex with the “victim,” he saw one of his two roommates possibly having sexual contact with her on the dance floor earlier that night. And, because Miller observed it and didn’t do anything to stop it, he was still guilty of sexual assault as a party-to-the-crime.
This type of guilt by association is common, and party-to-the-crime statutes are incredibly far-reaching. What is not common, however, is what happened next: both convictions were reversed. The appellate court reversed Omot’s conviction for lack of evidence, and ordered the trial judge to enter a full and final acquittal. In Miller’s case, however, the appellate court reversed the conviction due to the trial judge’s gross misunderstanding of the party-to-a-crime law. Instead of ordering a full and final acquittal, the appellate court ordered the trial judge to decide whether Miller should get a new trial where he can use the new DNA evidence in his defense. Let’s hope the trial judge gets this one right. (Hint, judge: the answer is yes.)
But few defendants are as lucky as Miller, and especially Omot. The reason is that after a conviction, the appellate court has to review the evidence in the light most favorable to the state, and must also give the state all inferences so that the dots may be connected to form the requisite picture of guilt. Only when the evidence and inferences don’t exist at all may an appellate court reverse a conviction.
But these reversals, as anomalous as they are, raise some interesting questions:
- Are these two rare reversals—occurring within five weeks of each other—just the tip of the iceberg? How many other equally weak, or nearly as weak, convictions do not get reversed?
- How is it that some people think they can know something to such a high degree of certainty—here, a defendant’s guilt beyond a reasonable doubt—without any evidence?
- Why are some juries and some judges so eager to convict and incarcerate people? Without any evidence, is it based on race or some other physical characteristic that can’t be seen when reading the trial transcript? Or is it just our love of punishment, even in cases where a crime was committed, if at all, by someone else?
- Are the convictions in these two cases just a symptom of a greater problem? Are they just the natural result of our inability to think critically, skeptically, and logically?
Fortunately, these are questions that Mr. Omot and (hopefully) Mr. Miller can ponder at their local coffeehouse or pub, instead of at jail or prison.