The Counsellor's Corner

In my last column, I mentioned that I had found myself in the unlikely position of having recently been in agreement with the latest Appellate Court decisions. Well, that string came thundering to a halt on Monday when the Court of Appeal in Sacramento found that in the prosecution of a rape trial, the District Attorney's office can introduce alleged past sex crimes as evidence in a new case. What that means in effect is that if someone is accused of rape and they have previously been tried and acquitted of other alleged rapes, these alleged prior sex crimes can come into evidence in a new rape trial, even though the defendant had been found not guilty in the previous cases.

This was the first ruling in this state in which a Court of Appeal held that alleged prior crimes and evidence pertaining to them could come into the trial of an alleged present crime, even if the individual had been found not guilty of the prior crimes.

The court reasoned that, in effect, a not guilty verdict does not mean that someone did not commit the crime; it means only that it could not be proved beyond a reasonable doubt that the individual committed the crime. That statement is true; O.J. Simpson might be the best example of someone who was found not guilty but it obviously does not mean that he did not do it. In fact, in the subsequent civil case he was found to be civilly liable, and a significant judgment was obtained against him.

That situation, however, is much different than the case at hand. The defendant here is a Mr. Baker who was convicted in this present case of sodomy and oral copulation. In his trial four women testified against Mr. Baker, the one who was the alleged present victim and three other women: Ida J., Amber H., and Nicole R. In Nicole's case she claimed that Baker sexually assaulted her after they shared a pizza at his office. That case went to trial and the jury came back not guilty. In the case of Ida J., she claimed to have met Baker at a laundromat and alleged that he later raped her. That case ended in a hung jury, and the D.A.s office decided not to retry it and the case was dismissed.

Lastly, with respect to Amber H.; she indicated that she knew Baker and invited him over to watch television, and during the course of the evening he raped her. The charges against Baker in that case were subsequently dismissed.

So you have three women, Ida J., Amber H., and Nicole R., each of whom had their day in court with respect to Mr. Baker and were not successful. I don't imagine Baker had much in the way of assets or it is likely that they would have sued him civilly where, as with the O.J. case, the burden of proof is that of a preponderance of the evidence which is an easier burden to make than the criminal burden of proof beyond a reasonable doubt.

In general, our legal system attempts to try people for that which they allegedly did on the night in question, as opposed what they might have done in the past. For example, in the driving-under-the-influence-of-alcohol world in which I have tried numerous cases, if a client has a prior driving-under-the-influence conviction, the jury doesn't get to hear about it. The theory is that the person should be convicted or acquitted based on what he did or didn't do on a particular night, and if a jury were to learn that the individual had done it, or allegedly done it before, they would be a lot more likely to convict him than if they viewed him as a first-time DUI defendant.

Mr. Baker did not have that luxury. In addition to the testimony of his present alleged victim, the testimony of three women who years earlier had their day in court against Mr. Baker was permitted. I can guarantee you, it is a lot easier for a jury to convict an individual if there are four women testifying he raped them at different times as opposed to the testimony of one alleged victim.

If you believe that where there is smoke, there is fire, Mr. Baker may be getting what's coming to him, but that's not the point here. Mr. Baker is entitled to not have previous sexual behavior for which he has been acquitted by a jury and/or had the case dismissed, be used against him. Unless the alleged victims want to sue him civilly after the criminal jury trial, that should be the end of it. There really is strength in numbers, and four women testifying against Mr. Baker made it virtually impossible for him to receive a fair trial with respect to the present charges.

Hopefully the State Supreme Court will take this case on review and reverse this ruling. Sometimes the way a result is obtained is more important than the result itself.

Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.