Saturday, May 7, 2011

In defense of a defense: Lessons from Burns and Bvocik

In jury trials, judges often give prosecutors an incredibly wide berth in proving their cases.  Not only can they introduce direct evidence of the defendant’s guilt and motive, but they can also dredge-up the ancient past in the form of “other acts” evidence.  This places a dual burden on defendants: defend the charged crime and answer for decades-old allegations that often were never even charged, let alone proved.  But even more alarming, there is a double standard at work: when defendants have powerful and direct evidence of their innocence, courts will often go to great lengths to deny them the right to present a defense.  Two recent cases demonstrate this double standard, and teach us some valuable lessons in the process. 

In State v. Burns, the defendant was accused of sexually assaulting his niece.  The niece claimed that she “had never had any problems with anyone else in her family,” and that she lost her virginity to the defendant.  The prosecutor also introduced evidence of the niece’s post-assault behavior—e.g., unhappiness, loss of self-esteem, etc.—along with an expert witness to testify that this “behavior was consistent with that of other adolescent sexual assault victims,” thus putting an expert’s stamp of approval on the allegations.  The prosecutor then argued to the jury that “no one can suggest a reason, again, as to why she was displaying the behaviors that she was that Dr. Huebner talked about as being consistent with that of someone who was sexually assaulted.  There’s no other thing that went on in her life at that period of time that would explain those behaviors.” 

And how did the defendant want to defend the allegation?  In addition to his alibi witness, he wanted to introduce evidence that “at that period of time,” the niece had also accused her grandfather of sexually assaulting her.  This, of course, would have proved that the niece did, in fact, “have problems with [someone] else in her family,” and that she did not lose her virginity to the defendant.  More important, it would have shown the jury that, despite the prosecutor’s argument, there was something else “that went on in her life at that period of time that would explain those behaviors. 

The court, however, denied the defendant the opportunity to present a defense.  Then, after hearing only half the story, the jury convicted.  The case eventually landed at the Wisconsin Supreme Court, which claimed to understand why the trial judge’s rulings and the prosecutor’s arguments were “troublesome” to the defendant, yet it amazingly upheld the conviction.

Similarly, in State v. Bvocik, the defendant was charged with soliciting a minor over the internet for sexual relations.  The “victim” never testified.  However, the prosecutor presented evidence to the jury that the “victim” reported the crime to a liaison officer at a high school, and further argued that, on her internet profile, she had used a birth date—Valentines Day—that the defendant should have realized was obviously fake.

And how did the defendant want to defend the allegation?  By showing that the “victim” claimed to like cigarettes, sex toys, and kinky sex; that she claimed to be twenty-eight years old; and that she was, in fact, twenty-eight years old.  That’s right, the “victim” was, in fact, a twenty-eight year old woman, and the prosecutor knew it.  And that was information that the jury wanted to know; one of the jurors even sent a note to the judge asking “[h]ow old was the girl who actually initiated and came to the police?”  The judge, apparently having slept through the whole trial to that point, thought that the woman had claimed on her internet profile that she was only fourteen.  When both attorneys told him that the woman was actually twenty-eight and had claimed on her internet profile to be twenty-eight, the judge opined: “All right . . . I somewhat understand why the jury is curious . . .”

But the jury never found out the “victim’s” actual age, and therefore convicted the defendant of soliciting a person that he believed to be fourteen years old.  On appeal, the appellate court held that the girl’s actual age didn’t matter because, technically, it was the defendant's belief about her age, and not her actual age, that counted.  However, to its credit, the court did reverse for a new trial.  Unlike our supreme court in Burns, these appellate judges realized that, because the prosecutor argued that the “victim” was a minor even though he knew that she was really twenty-eight, the verdict was tainted and the case should be retried.  Then, on retrial, the defendant waived his right to a jury and instead opted for a bench trial by the very same judge that had cluelessly presided over his earlier jury trial.  At the bench trial, the judge found him guilty.  (Question: What elected official wants to read a headline in the local rag announcing that he found a defendant not guilty of sex crime?) 

So, other than not waiving the right to a jury, what can we learn from these cases?  First, despite their mantra that a jury trial is a “search for the truth,” some prosecutors will use their considerable power and influence keep the truth from the jury, and then argue to the same jury that the absence of the evidence they just succeeded in excluding proves the defendant’s guilt.  Second, some judges, in some cases, seem deathly afraid of letting a defendant put on a defense.  One reasonable explanation for this is that the judges (or justices) started with a presumption of guilt, and then turned hyper-technical to exclude any evidence, no matter how powerful, that conflicted with that presumption.  And third, the Seventh Circuit has already spanked our Wisconsin courts numerous times for butchering the United States Constitution—including here, here and here—so there’s at least a chance that they’ll do it again in Burns.


  1. Very good post. However, as I read the decision and Burns' briefs, I don't think the issue was "constitutionalized." In other words, the appeal raised only a question of state law (reversal in the interest of justice), not of the federal constitution (such as impairment on right to confront witnesses or present a defense). There's a desultory reference or 2 to due process, but not enough on which to pin a federal habeas, I don't think.

    That said, the majority's somewhat condescending observation that they "understand why Prosecutor Sharp's comments are troublesome to Burns" is pretty remarkable: the prosecutor did nothing less than ask the jury to premise guilt on something he knew was false. Troublesome, indeed.

  2. Bill, great point. I wonder why the appellate lawyer framed the issues that way. I also wonder why the first trial lawyer didn't subpoena the "victim" to trial, and I wonder if it was the second trial lawyer who recommended a bench trial instead of a second jury trial. Don't get me wrong, I'm not judging, and hindsight is 20/20. I'd just be interested to know the reasoning behind the strategy decisions. We all know that decisions we make in trial can sometimes look bad in hindsight; it doesn't mean they were bad decisions at the time.