Saturday, September 3, 2011

She did it once, she's done it again

Remember that Harvard-educated Alabama professor who went nuts and shot up a department meeting? Well, her case is still pending. And after Amy Bishop allegedly went on her shooting rampage, the media naturally started digging into her past. It didn't take long to figure out that over 20 years ago, she had been holding the gun that shot and killed her brother. I say it that way because the conclusion at the time was that it had been a tragic accident, that while she had been holding the gun trying to unload it, it had accidentally discharged, killing the brother.

Of course, hindsight is 20/20, so once she was accused of a murderous gun rampage, authorities in her hometown in Massachusetts decided to reopen the investigation, held an inquest, and got a grand jury to indict her on first degree murder. It's easy to ascribe different motivations to her actions decades ago now that we can see she's a homicidal maniac. Allegedly.

This story came back to my mind the other day when MSNBC had a story about litigation over whether the transcripts and investigatory materials from the inquest are now available to the public. The judge has sealed them because a trial is still pending, but the media is suing for access, arguing that state law makes those records public once an indictment has been handed down. The defense, naturally, is arguing that releasing all of that information now, before trial, will prejudice her right to a fair trial.

The media, though, is arguing that they have a compelling interest in those materials because they want to find out what happened in the allegedly botched investigation 24 years ago. As the Boston Globe's metro editor said, "There was a crime that was committed here, and there were decisions made back then that may have potentially contributed to a tragedy in Alabama. I think the public has the right to know if officials did something wrong and what the mistakes were that were made."

I do not see this ending well for Amy Bishop. By this, I mean only the Massachusetts case. (Does anyone see the Alabama case going well for her?) But I'm troubled by this new investigation into a 24 year-old shooting incident, this new perception that clearly a "crime" occurred back then and we need to find out why the authorities missed it. The thing is, though, that nothing has really changed since that investigation was closed over 20 years ago. Nothing except that Bishop has been accused of shooting some other people in an incident completely and totally unrelated to the death of her brother. So if she intentionally shot these people over here, she must have intentionally shot this other person before. (I, personally, might have gone with, gee, maybe she was really messed up after accidentally killing her brother. But I'm a bleeding heart liberal defense attorney.)

A hot topic in criminal law is always when the prosecution can introduce evidence of other bad acts committed by the defendant. In Kansas, we call this 455 evidence, after the statute governing its admission. Our general rule is that evidence of other bad acts can only come in if it's relevant to a material, disputed fact and it's more probative than prejudicial. 455 evidence is not admissible to prove a defendant's disposition to commit a particular type of crime. This is considered propensity evidence. The idea being that we don't convict people based on what they've done at other times. The fact that a person committed a crime before doesn't actually have any bearing on whether the defendant committed THIS crime at this time. But people tend to think that way, so it is important to keep juries from going down that path by hearing about irrelevant prior criminal activity.

It seems to me that Bishop is falling victim to propensity evidence. No one would ever have reopened the old case if she hadn't been involved in the new one. The investigators and prosecutors are now looking at that old case through the lens of "she intentionally shoots people." They're now saying she has a propensity for this kind of behavior. She did it here, she must have done it there. An editor for the Boston Globe is taking it as a given that a crime occurred in that prior shooting, even before a trial jury has heard any of the evidence at a trial that is meant to decide that very question. And all because we know (allegedly) that Bishop intentionally shoots people.

I hope Bishop can get a fair trial on the Massachusetts case, where the jury and judge consider only the facts surrounding the shooting of her brother instead of making the easy, but flawed, deduction that she intentionally shot those people in Alabama (allegedly), so she must have intentionally shot her brother as well.

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