Harvey Weinstein and the Limits of Prior Bad Acts

Harvey Weinstein’s convictions for sex offenses in New York were overturned today by the New York Court of Appeals. He has not been acquitted, the appellate court ruled that he is entitled to a new trial. He is not likely to get out pending the new trial, as his convictions in California still stand, and he has been sentenced to 16 years for those offenses. This is in no way an exoneration.

This is a rebuke of the prosecution, and of the trial court who erred in allowing into evidence prior bad acts allegations (a.k.a. similar fact evidence) introduced by the state. In this case, the prior acts were also sexual acts, but against different people, and none of them had ever been charged, much less proven, against Weinstein. It is much easier to convict someone if you can tell the jury they are a serial offender than to prove a case standing alone. The evidence is not supposed to be admissible to show the propensity to commit a crime, but the impact on the jury can be overwhelming. The theory is that prior bad acts are admissible for other reasons; be it motive, opportunity, etc. The reality is that suggestion of propensity and is likely to overwhelm the presumption of innocence. It’s the worst kind of character evidence, and character evidence is generally inadmissible.

The limit of relevant evidence is that the prejudicial value cannot outweigh the probative effect. Obviously the prejudicial effect of evidence of prior acts of criminal conduct is extremely high, and moreso if the prior bad acts are similar in nature to the offense being tried. It should be a rare circumstance that a prior bad act is admissible, particularly if the prior bad act is a criminal offense that was uncharged.

The power of bad acts evidence was apparent in the prosecution of Bill Cosby. In Cosby’s first trial, the judge allowed prior bad act evidence, but only from one prior alleged victim. That case ended in a deadlocked jury and a mistrial. However, when the case was brought back for Cosby’s second trial, the judge allowed the state to introduce testimony from 5 prior accusers, to show a ‘ distinct, signature pattern’ of Cosby’s assaults. Cosby’s was convicted as charged in the second trial, though his conviction was later overturned for other reasons. There is a risk on prior bad acts cases that the jury is convicting someone not based on the alleged conduct, but on the perception of their character. The difference in results in Cosby’s trial demonstrate the reality of that risk.

Harvey Weinstein has not been acquitted. His conviction being thrown out was for evidentiary errors by the trial judge- but the state is entitled to retry him. They will have to do the trial with evidence of the case at hand, and not based on allegations of his prior monstrous behavior. Regardless, he remains in prison, and his monstrosity remains exposed to the world.

DUI on a Power Wheel

An Indiana man was arrested recently for a DUI on a Power Wheel Jeep. Power Wheels are the small motorized vehicles meant to be driven by children, and not on the roads. However, it is still a vehicle, and apparently that is sufficient to charge for a DUI in Indiana, as it is in Florida. Even non-motorized vehicles can count, from bicycles to skateboards.

Convicted Double-Murderer Attacks His Lawyer in Court in Cold Case Sentencing

Joseph Zieler was scheduled to be sentenced today for his two First-Degree Murder Convictions for the 1990 killings of Robin Cornell and Lisa Story, but he decided to try to derail the proceedings. In the morning, as the court was meeting to discuss his motion for new trial, and sentencing issues, Zieler took a cheap shot at one of his attorneys, Kevin Shirley, with an elbow. Check out the video:

Fortunately, Mr. Shirley was unharmed. The judge asked if he was ok, and he said, I used to box, I’ve taken a lot better shots than that.” That’s a badass thing to say.

It didn’t help Mr. Zieler, The court proceeded with the sentencing hearing in the afternoon, and Mr. Zieler was sentenced to death by the judge. He had been recommended for the death sentence by the jury, but not with a unanimous recommendation, pursuant to the new Florida statute. That’s one of the issues he plans to appeal, but it is unlikely to succeed. Since the change is procedural, it probably will probably be found to properly apply to him, and even if it didn’t, his case is so old the prior statute would likely then apply, and still not require unanimous death. The irony is that due to time and his age and health, he is unlikely to end up having the death sentence completed.

The incident made national news. I saw Mr. Shirley not long after as I was headed to another courtroom- and he looked none the worse for wear. I feel bad I didn’t ask how he was, but I did not know at the time he had been struck. He’s a tough dude! It reminds me of the Brian Casey case, where he struck his standby counsel, trying to disrupt the case. (I could not find any coverage of the Casey attack, but recall it well.) It did not work out for Mr. Casey, either.

Zieler previously made news for flipping the bird in court. I’ve talked to people, and the news people feel he was flipping off the camera, but others felt it was directed to the prosecutor on the case. Either, way, he did not do himself any favors, as he was convicted and sentenced to death.

Cold Case Clown-Killer Pleads Guilty

After 27 years, authorities arrested Sheila Keen-Warren for the 1990 killing of Marlene Warren by an assailant disguised as a clown. Warren answered the door to someone dressed as a clown who handed her balloons and flowers, then pulled out a gun and shot her in the face. Marlene Warren died at the hospital 2 days later.

Sheila Keen became a suspect when authorities found out she was having an affair with Marlene’s husband, Michael. She eventually married him, but no arrest was made for decades.

Sheila Keen-Warren now

In 2014, new DNA evidence was uncovered by modern technology that tied Sheila Keen-Warren to the crime. She was arrested in Virginia in 2017, still married to Michael Keen. The case has been pending since then, but was scheduled to go to trial in the coming weeks.

Sheila Keen-Warren arrest

Mrs. Keen-Warren will be sentenced to 12 years in prison, with some 6 years of credit since her arrest. The charge was under the old guidelines, and before the rule that requires prisoners to serve 85% of their sentences, so she has completed a substantial portion of her sentence. She will likely be out in less than 2 years. Her attorneys insist that she still claims innocence, but accepted the deal to avoid the risk of trial. With as much credit, and imminent release, the plea agreement makes a lot of sense for her. While she may protest her innocence, she has now plead guilty and been convicted of the offense. The family finally has closure.

press clipping from 1990

Former Assistant Prosecutor Blows Whistle on Racist Policy

A former prosecutor has revealed that the Office of the State Attorney of the Second Judicial Circuit had an explicitly racist policy published to assistant prosecutors there. The policy, which was printed in a memo and posted in the Jefferson County prosecutor’s office, explicitly directed prosecutors to seek harsher penalties when the Defendants for No Valid Driver’s License charges were “Hispanic.”

It’s shocking for the office to have such a policy, and even more shocking they actually wrote it up and printed it out. The elected prosecutor likely did not know about it, this was posted in one of the branch offices of a 6-county circuit, but it is still appalling that such a document existed. The optics are particularly bad where the prosecutors in the office are all white.

The article does not contain a direct response from the prosecutors office regarding the allegations, though elected State Attorney Jack Campbell has argued against stereotyping. Sadly, the actions of his office to not match his words on the matter.

A clip from the policy from the picture taken by former prosecutor Mackenzie Hayes.

Former ASA Mackenzie Hayes, who revealed the policy, shortly left the 2nd Circuit SAO.

Tweets from Our Tallahassee include a video: https://twitter.com/OurTallahassee/status/1648744747895250961

Wisner Desmaret Trial to Start on Charges of Killing FMPD Officer

Wisner Desmaret

Jury selection is set to start today for Wisner Desmaret, who is charged with First Degree Murder in the killing of Fort Myers Police Officer Adam Jobbers-Miller in 2018. Jobbers-Miller was responding to a complaint, when he was allegedly tackled by Desmaret, who took his firearm and fatally shot him. The State is seeking the Death Penalty on the case. Desmaret fired his attorney, and will be representing himself at the trial. Desmaret has a documented mental health history — he’s had prior criminal cases in which he was found incompetent to stand trial, and subsequently received treatment. His competency has been evaluated in this case, but he has been found competent to stand trial.

It should be noted that competency, his ability to appreciate the charges and comport himself in court, is different from the defense of insanity. Insanity is a mental disease defect so extreme that at the time of the offense, the defendant could not understand what he was doing or could not understand that what he’s doing was wrong. It’s a difficult defense, as individuals are presumed innocent, and as an affirmative defense, the burden is on the Defense to prove the insanity by clear and convincing evidence.

While prior counsel filed a notice that they intended to use insanity as a defense, citing schizophrenia and abnormal brain scans, Desmaret may not use that defense now that he’s representing himself for the trial. At a pretrial conference last week, Desmaret in discussing the case raised some issues that he may argue at trial, and they were kind of all over the place. At one point he discussed a lack of certain DNA evidence, suggesting an identification defense, at other times talking about police violence, suggesting a justifiable use of force defense. Then he made some comments suggesting a conspiracy theory about them wanting to harvest his blood. It won’t be clear what he argues as his defense until the trial gets going, and with his addled brain, it may not become clear.

Jury selection is slated to start today. The trial should take several weeks, possibly two or three, but maybe several, depending on how things go.

2 Strikes and You’re Out, Florida’s Harsh Career Criminal Sentencing

A recent article took a look at Florida’s Prison Releasee Reoffender statute, which mandates a maximum penalty for designated offenders. The problem with sentencing strictures that take discretion away, is that imbalanced sentences can follow. The man discussed in this article, Steve Brana, was sentenced to life for robbery, except the robber with the gun got less time. Brana’s only prior offenses were juvenile burglaries. It’s appropriate to take a violent offender off the streets for a time to ensure the safety of the community, but life in prison for an accomplice (or principle) who has no violent history may not be necessary.

Florida Legislator wants to Pass a Law to Make Bloggers Register

Some chucklehead needs to read the Constitution. A Florida State Senator, Jason Brodeur, wants bloggers who write about Florida officials, and he includes himself and the legislature under this umbrella, to register with the state or potentially face fines. This is patently unconstitutional.

The First Amendment prohibits any law that would abridge the freedom of speech, or of the press. This law is so offensive to the freedoms granted, I can’t believe the idea made it far enough for the bill to be filed. The registration requirements, and potential penalties, create what’s called a “chilling effect” that would run afoul of our right to free expression.

This country was founded on the principle of being permitted to critique the government. I do have a personal interest as a blogger, albeit occasionally, who sometimes writes about the government. But this bill is offensive to the First Amendment regardless of which side you are on. If we had a “woke” government that he disagreed with, would we not be allowed to criticize it? Of course we would, and it’s preposterous to try to restrict comment on the government.

The Florida Constitution also provides that no law shall be passed that restrains or abridges the liberty of speech or of the press. So this law would violate the U.S. Constitution and the Florida Constitution. It’s a double-unconstitutional law — Jason Brodeur would restrict our rights under both Constitutions. I hope the citizens of Lake Mary found out what he is trying to do and find someone to primary him.

This is supposed to be the Free State of Florida. If this pinhead Jason Brodeur doesn’t respect the Constitutional rights of Floridians, he does not deserve to to represent us in the legislature. It will obviously get laughed out of court when it gets challenged, but it should never get passed into law. Brodeur should talk to a lawyer, a law student, even, and withdraw this clearly unconstitutional bill. It’s appalling that a lawmaker would try to impede our Constitutional rights.

Alec Baldwin to be Charged with Involuntary Manslaughter in Accidental Shooting Deaths on set of ‘Rust’ Movie

New Mexico prosecutors announced today that they are filing charges against actor Alec Baldwin, as well as weapons handler Hannah Gutierrez Reed, for the tragic October, 2021 accident on the set of the movie ‘Rust’. The production failed to ensure several safety precautions that should never had allowed live ammunition on the set, much less in a gun handed to an actor.

Baldwin denies that he pulled the trigger. While it’s possible the gun malfunctioned, the FBI said their tests showed the gun functioned properly, meaning that the trigger would need to be pulled for it to discharge. His statements to the contrary will call his testimony into question.

That said, it will be extremely difficult for prosecutors to prove him guilty beyond a reasonable doubt. First, when he was handed the gun, he was told that it was a “cold” gun… that means he expected it to be safe. That makes it hard to prove the his lawful act “might produce death in an unlawful manner or without due caution and circumspection.” He did not have reason to pause because there were protocols in place, ammunition should not have been live on the set, and he was told the gun was cold.

That doesn’t end the analysis for several reasons. One additional factor is that he was a producer on the film. That means he may bare some more responsibility for the lack of safety on the set and the failure to ensure protocols are followed. I don’t think that rises to the level of criminal responsibility, that sounds more like civil liability. Apparently the civil wrongful death matter has already been settled by Baldwin and the production.

I think the prosecutor wants to show that they do not hold anybody above the law, but I think they will have a hard time proving criminal charges against Baldwin. Frankly, the fact that they also charged the armorer suggests her negligence may weigh against Baldwin’s responsibility. I think there is a high likelihood it will go to trial, as Baldwin will want to try to win acquittal in court, but it will be fascinating to watch from a legal standpoint.

DUI Suspect does a Backflip to Try to Show He’s Not Drunk

An Ohio man was stopped for suspicion of DUI the other day, and he tried a unique way to show the officers that he was not impaired. 27-year-old Tanner Watson was pulled over in Broadview Heights for speeding, but officers suspected a possible OVI (Ohio’s version of DUI). He admitted a having a few beers, but to show that he wasn’t drunk, he did a backflip for the officers on the side of the road. Not only that, he landed it.

Based on his performance on the other exercises, officers still felt that he was impaired and arrested him. But, he’s got an argument to the jury that his acrobatics would show that he’s not impaired. There is some power to the argument that if he can pull off such a physical feat, that he was not impaired, as most of the jurors would not be able to do a flip!

A friend of mine at the prosecutor’s office was working a DUI case many years ago, and wanted to show me the video. He thought he had a great case because the Defendant started dancing during the field sobriety exercises. Not just any dancing, she was a ballet dance, and started going through positions and performed some impressive moves. I told him that the case may not be as strong as he thought, and the jury ended up acquitting her. It can be hard to show that someone’s normal faculties are impaired, as required by the law, when they can perform impressive athletic skills.

I said it was a unique way to avoid a DUI, but a little searching shows that he is not the only person to do a backflip to try to prove his sobriety, here’s another:

There have been quite a few ways people have tried to avoid DUIs, check out this parkour guy, backflips are among the more impressive.