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The Criminal Closet

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Plea Bargaining How far would you go to keep a secret?

The classic -- albeit staid and stereotypical -- storyline that has popped up in Law & Order, CSI and other crime dramas involves the individual who commits murder to keep his or her sexual orientation a secret. From a legal theory standpoint, that is an uninteresting case. Granted, it happens, but preventing such stories from happening again has more to do with making being gay more acceptable in society than anything the criminal law can do.

However, the gay closet factors into the criminal justice system in more subtle and insidious ways. Most of us remain blissfully unaware of these cases, but they are arguably no less an affront to our liberty. Take, for example, the case of Jessica M. (a pseudonym), a young woman who was pressed into accepting a plea bargain in a criminal case of dubious merit to prevent evidence of her homosexuality from being public at trial.

Should prosecutors be allowed to leverage a defendant's sexuality and his knowledge that the defendant wants to keep that sexuality a secret in order to get a plea bargain? If yes, are there any limits on prosecutorial conduct in pleas? A real-life hypothetical (with slightly altered facts to protect identities) and some questions for you AFTER THE JUMP.

Continue reading "The Criminal Closet" AFTER THE JUMP...

Jessica M. was a college-aged woman who was having a secret love affair with another young woman (Amy S.) at school. Amy was an out lesbian, but respected Jessica's desire to keep their affair a secret. For her part, Jessica stayed in the closet for three reasons: (1) Her parents were conservative Catholics and had disowned an older son who came out as gay 4 years earlier; (2) She was a star pupil that everyone knew; and (3) she was concerned about her job prospects in the entertainment industry if people knew she was gay. We may believe that these reasons lacked reason or merit, but that misses the point. Suffice it to say, these reasons were powerful in Jessica's mind.

As a prerequisite for graduation in her major, Jessica had to complete an original paper in astrophysics. Due to her many commitments, she did not have time, so she plagiarized the experiment and other parts of the paper. Here's where the facts get a bit sticky. According to the prosecution, the victim -- a peer who worked in Jessica's lab -- discovered Jessica's plagiarized work. He threatened to expose her. She killed him with a scalpel that, panicked, she threw in her purse. Later that day, at the home of her lesbian lover, Jessica was distraught and retreated to the bathroom for a few moments to compose herself, during which time Jessica's purse was accidentally tipped over, revealing the murder weapon, still stained with blood. Amy saw this, but replaced the scalpel and the purse before Jessica returned from the restroom. Later that evening, Jessica apparently threw away the scalpel into the nearby river. It has never been recovered.

The police conducted their investigation into the death. There were hundreds of fingerprints through the lab and no signs of a struggle on the body. No DNA could be retrieved from the dead body, other than his own. Due to temperature in the lab, the coroner could estimate that the murder took place sometime within a 28 hour window. That was a problem -- few people have alibis for all 28 hours. The deceased had friends, no known enemies, but was considered a bit of a loner, studious and highly competitive. A search of his computer found a copy of Jessica's paper with a notation on it: "See DeWitt [the professor], re copy." The deceased's girlfriend testified that he had spoken with her about a girl in his class whom he didn't like for some reason. She knew nothing more. Class enrollment showed only one girl in class: Jessica. 

While investigating Jessica's motive and alibi, the police and Assistant District Attorney Thomas interviewed her many friends, a few of whom hinted at how close Jessica and Amy were. "If anyone would know anything," one said, "it would be Amy."

The ADA questioned Amy who, after weeks of claiming not to know much, for unclear reasons volunteered that she saw a bloody scalpel in Jessica's purse.

The case against Jessica is weak. There is no murder weapon, only a cryptic message about Jessica's paper for motive and, like Jessica, the five others suspects -- the details about them aren't important -- could not account for the entire 28 hour period, either. Amy's testimony would have made Jessica the top suspect, but the case was still floundering.

The prosecution was prepared to call Amy as a witness, but one person's uncorroborated testimony that she saw a bloody scalpel in her friend's purse while her friend was in the bathroom was of limited help to the prosecution. ADA Thomas knew he needed a plea or he risked losing the entire case. He probed into the relationship between Amy and Jessica and found various young women who knew of rumors of their love affair. ADA Thomas used that information and called a plea conference. He offered Jessica a lower manslaughter charge (rather than intentional homicide). Her lawyer declined, knowing how weak the case was. ADA Thomas said that if she did not accept the plea, he would call Amy to the witness stand and raise their relationship as evidence that Amy had no reason to lie and as evidence of a pattern of behavior in which Jessica lied and kept secrets. He would ask about arguments they had about keeping their affair a secret and threats Jessica had made to Amy before, all of which Amy would be forced to testify to, even as hostile.

Jessica's lawyer advised against the plea. "They have no case." Jessica asked if ADA Thomas could do what he threatened and Jessica's lawyer said that he would object and argue against it, but evidence of a pattern of conduct can be admissible if not overly prejudicial. "It's no slam dunk for him, but depending on the judge, it's more likely he'd get in at least some questions about it."

Jessica took the plea.

Notice the difference between Jessica's case and the first hypothetical (killing to stay in the closet) -- Jessica probably would have been found not guilty of the crime with which she was charged; the evidence was weak, circumstantial and there was no murder weapon. She pleaded guilty not because she weighed the uncertain risk of conviction and its high sentence with the certain risk of a lower sentence, but because regardless of the result of her trial, evidence of her sexual orientation was going to come out at trial. The prosecutor used his knowledge of her secret as leverage to get her to plea, saving him the trouble of trying to win a case with long odds.

Should that kind of personal information, arguably constitutionally protected as private under Lawrence, be permitted as leverage in a prosecutor's attempt to get a defendant to plead guilty?The few cases on prosecutorial power in plea bargaining -- Bordenkircher v. Hayes, for example -- leaves the prosecutor wide latitude. He can threaten greater punishment; he can threaten charges that are, in reality, weak and baseless; he can do pretty much anything within the boundaries of egregious behavior. He can, at times, even misstate the truth or tell half truths. What do you think?

Cases like Jessica's raise questions about the powers of prosecutors, the leeway we give them to leverage whatever they can to reach plea deals and what, if any, boundaries limit prosecutorial conduct. In a criminal justice system that encourages pleas, but has become ever more draconian over the years, tensions arise between our conception of due process rights and our need to put criminals behind bars.

[Ari's NOTE: This is one in a series of posts under the umbrella, "The Curious Case of the Gay Criminal." In the coming months, I will temper our discussions of hot-button legal and political issues with criminal law issues that face the LGBT community about which many of us are not readily aware. Your thoughts on these topics -- or suggestions -- are welcome.]

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Comments

  1. Thanks for this interesting look at the system; I look forward to more in this series!

    Posted by: jordan | Nov 17, 2010 1:43:57 PM


  2. There are so many possibilities here. If she is actually guilty, as it appears she is, then maybe it was her own guilt about the crime that helped push her to accept the deal. Maybe she was protecting her lover from having to get up on the stand. Maybe she believed a jury would be so prejudice against a lesbian that a tougher conviction was assured. Maybe her culture and family have taught her that violence is less objectionable than sex. Maybe she knew that in America the prosecutors have unlimited funds and almost limitless power to attack (see Kenneth Star) and if they really want you, you are screwed unless you have lots of money. If she were truly innocent then this would be a much more chilling story.

    Thanks for the post.

    Posted by: chuck | Nov 17, 2010 2:16:27 PM


  3. It should if it gets murderers off of the street...and in this scenario, someone who murders because they get caught for plagiarism would kill again for other minor inconveniences. That's very obvious. There are limits depending on the nature of the crime, but one's "personal life" when accused of murder isn't one of them. I don't see why a prosecutor should respect privacy when there is are legitimate reasons not to in pursuing a conviction.

    Posted by: TANK | Nov 17, 2010 2:35:25 PM


  4. Another hypothetical: if this involved a straight couple who wanted to keep their relationship a secret for any reason, and the ADA wanted to use the knowledge about that relationship at trial to strengthen his case--i.e., to show that the defendant's partner had no reason to lie, or to attack defendant's credibility--would that behavior by the ADA be considered egregious?

    I guess my question is, should there be a distinction re privileging a person's relationships (romantic, sexual or otherwise; straight, gay or otherwise) vv. a person's sexual orientation/gender identity? Should they both be privileged, should one be off limits and not the other, or are they both fair game? I'd like to hear what people think.

    Posted by: Boom | Nov 17, 2010 3:08:38 PM


  5. So, wait a second, am I reading that you take issue with a prosecutor being able to show that his star (only) witness has no reason for lying about finding and failing to turn over a bloody scalpel as some sort of misconduct to get the defendant to enter a plea?

    We do that all the time in criminal court. On BOTH sides of the fence. Anything we can use to show our side is more credible, we use.

    Ari, whether you like it or not, the relationship gets successfully raised in court to show the girlfriend has no reason to lie. While their arguments regarding a closeted lifestyle may be debatable under the rules of evidence, there's a good shot that her propensity to lie comes in, just like it would for anyone else.

    Are you asking for some gay exception to the rules of evidence, perhaps?

    If you want to debate the merits of prosecutorial misconduct, sure, let's do that. But to assume it's unfair to apply the same rules of evidence to gay people as straight people is disingenuous and intellectually dishonest.

    Posted by: DR | Nov 17, 2010 3:12:23 PM


  6. @DR: Thank you for your comment. I'm not sure how anything in the post can be "intellectually dishonest" when I never offered my position or contradicted myself in anyway. I pose a question. Should something the Supreme Court has recognized is a private right -- sexual intimacy with someone of your choosing -- be leverage in a plea bargain when the defendant is of dubious guilt? The question raises the broader issue of what, if any, limits should be placed on the prosecutor when working toward a plea bargain.

    And, it is not the case that we use anything to show our side more credible. In many cases, we cannot admit evidence if it would be too prejudicial, often regardless of its probative value. But, that and other restrictions from the rules of evidence concern admissibility at trial. This is a whole different animal where our system places little if any restrictions. Should that be the case?

    Posted by: Ari | Nov 17, 2010 3:20:50 PM


  7. @ari:

    "Should something the Supreme Court has recognized is a private right -- sexual intimacy with someone of your choosing -- be leverage in a plea bargain when the defendant is of dubious guilt?"

    Yes, but the privacy right there is slightly different, no? In Jessica's case, it's information privacy--that the government should not disclose private info about your intimate relationships. In Lawrence, it's that the government should not interfere with your intimate relationships. If that distinction is established, then the quick answer to your question is yes; it's fair game because it's not the right that is protected by Lawrence, right?

    [Generally agree with you that these are important issues, esp. prosecutorial discretion; I'm just trying to work the questions out in theory.]

    Posted by: Boom | Nov 17, 2010 3:39:19 PM


  8. @Boom: Thanks for your comment. And, I agree with you. To be honest, I am not entirely convinced Lawrence expressed that right, but let's not quibble about that.

    You are precisely correct about what is being used here. Jessica wants to keep information a secret. Jessica has no right under Lawrence to stop the prosecutor. But, consider a potential argument: interference with information she would normally have the right to keep secret is not only still at play here, but it is being used to shoe string a defendant who would likely not be found guilty into going to jail.

    It raises the following questions: Does the fact that the secret is about a protected relationship matter? If not, can a prosecutor leverage any secret to force someone to accept a plea? If the defendant would likely be found innocent (and that is part of the assumption I am making in this hypo), does that make it any worse from a prosecutorial power standpoint?

    Posted by: Ari | Nov 17, 2010 3:45:55 PM


  9. Of course, it is worse. However, even if we assume that the defendant is completely innocent, it would not matter; I'm not entirely convinced that information about one's relationship, even those that are protected from government intrusion, is the type that one "would normally have the *right* to keep secret."

    Does that suck? Yes. I think it should matter that the information concerns a protected relationship. But what can be done? Should LGBT jurisprudence [Lawrence] be expanded to include that information privacy right? Maybe.

    Posted by: Boom | Nov 17, 2010 4:04:12 PM


  10. @Boom: I don't think so, especially in this context. I hardly think that was even in the realm of what Lawrence intended. For better or for worse, we have a criminal justice system that is almost entirely dependent on plea bargaining. While I do believe there should be due process limits on the kind of leverage a prosecutor can bring to force a plea, I am as yet unsure what that limit should be or, at least, how to qualitatively describe it.

    But, with respect to Lawrence, it is an interesting question: The government actor is not objecting to the protected conduct. It is publicizing it. Does Lawrence simultaneously recognize a right to be free of government intrusion into your private sexual life AND a right to keep that sexual life private?

    Posted by: Ari | Nov 17, 2010 4:12:56 PM


  11. @Ari: My first instinct is to say no. But maybe, and this is a stretch, one can argue that the freedom from interference means not only that certain conduct cannot be criminalized, but also that the dimensions of protected relationships--including who knows and who does not know about them--cannot be defined by the government.

    Posted by: Boom | Nov 17, 2010 4:43:44 PM


  12. @Boon: Indeed. You've hit on the point. One of the great (or, maddening) things about the Lawrence opinion is that you can read almost whatever you want into it. I think you're right to call it a stretch, however.

    Posted by: Ari | Nov 17, 2010 4:47:38 PM


  13. "I'm not sure how anything in the post can be "intellectually dishonest" when I never offered my position or contradicted myself in anyway."

    I find the whole position to be intellectually suspect, to be frank.

    "Should something the Supreme Court has recognized is a private right -- sexual intimacy with someone of your choosing -- be leverage in a plea bargain when the defendant is of dubious guilt?"

    We do it with straights, it can be done with gays.

    "And, it is not the case that we use anything to show our side more credible. In many cases, we cannot admit evidence if it would be too prejudicial, often regardless of its probative value. But, that and other restrictions from the rules of evidence concern admissibility at trial. This is a whole different animal where our system places little if any restrictions. Should that be the case?"

    I call "foul" on this one. We constantly get into familial/sexual/spousal and other relationship questions in order to determine whether or not the witness on the stand is credible. The fact that the witness in question is her girlfriend makes her testimony more credible as a witness for the prosecution because she has no motive to lie. If she were testifying on behalf of her girlfriend on the defense side the prosecution would be perfectly in its right to question her credibility as an intimate partner. That is neither prejudicial nor is it violative of the rules of evidence.

    As for your reliance on Lawrence, there is a major difference between holding that the state cannot criminalize private sexual behavior between consenting adults and finding that no evidence of a defendants non-criminal intimate behavior is protected under the law to the extent that it cannot be explored at all in a criminal proceeding where it shows evidence of bias or lack thereof. Or a propensity to lie.

    Posted by: DR | Nov 17, 2010 5:22:13 PM


  14. I don't believe that prosecutors should be barred from using one's sexual identity when it is relevant to the case. In the example above, it is made relevant by the fact that the suspect's girlfriend is a witness.

    I pose a counter question though. If I am not mistaken, straights get a spousal privilege where one spouse cannot testify against the other. Now, obviously in the example above there wasn't the type of relationship where that would have applied, but what if it were a long standing relationship? One which, if hetero, common law marriage would have applied. Do homosexual partners get the same privilege as heteros? My guess is no.

    In that sort of situation, where a hetero couple would be protected by privilege and a homo couple would not be, then the line becomes blurred and I believe the prosecutor should not be able to use sexuality. However, we all know this would not be the case.

    Posted by: Steve | Nov 17, 2010 6:17:34 PM


  15. @Steve: Thanks for your comment. Great question. Spousal privilege issues will be the topic of a future column.

    Posted by: Ari | Nov 17, 2010 7:06:28 PM


  16. Considering the mess caused the the DA's office in Dallas, a few years back, with innocent people being convicted of crimes and some being sentenced to death due to prosecutorial misconduct, I don't think ANY DA should have that kind of leverage. At all. Especially considering it's now probable that the state of Texas has executed one man who's all but been proven innocent of committing ANY crime and another who might also have been innocent. The state and police have way too much power, as it is; using what is tantamount to blackmail to get their case settled is unacceptable...and damned immoral.

    Posted by: Kyle Sullivan | Nov 17, 2010 7:49:51 PM


  17. I'm not sure that Lawrence recognizes a right to secrecy in one's relationships, but the common law of torts certainly offers protections against forcible disclosure of truly private information. Just as a prosecutor can be sued in a civil action for malicious prosecution, I think it's possible to contemplate an ethical regulation echoing the logical and legal underpinnings of the privacy torts, especially if the relationship was kept completely out of the public eye. Further, I think Ari is making more of an ethical argument about how prosecutors should comport themselves rather than resting his hypothetical on the rules of evidence. The two sets of rules could easily be in conflict.

    Posted by: D.Guy. | Nov 17, 2010 9:59:20 PM


  18. @D.Guy. Indeed, I agree on Lawrence and the rules of evidence point. Any theory of restrictions on prosecutorial power cannot be based on the rules of evidence. Those deal with admissibility, which is clearly not at issue here, another reader's confusion of the two notwithstanding. But the answer need not only be ethical. Theorists have asked if there are due process limits on what prosecutors can do in plea bargaining. Courts have almost always answered no, but that doesn't mean they're right. :)

    Posted by: Ari | Nov 17, 2010 10:04:27 PM


  19. I'm confused. So the girlfriend of a perp sees a murder weapon in her purse and it's prejudicial? Who cares if they bump purses, if this was the girlfriend of the quarterback people would be screaming that he get the electric chair.

    Posted by: Sexy Mens Rea | Nov 18, 2010 12:12:58 AM


  20. Sexy Mens Rea, it's actually not going to be seen as prejudicial. It's material to the case since the only person who saw it was, wait for it, the girlfriend.

    Ari would have us believe that issuing a subpoena to the girlfriend of the perp so she can be compelled to testify regarding what she saw and be made credible by adding the fact she is in a relationship with the defendant and therefore not inclined to make up a story regarding evidence which would inculpate the defendant is unethical. It is not.

    As Ari notes in a few posts above, the courts have consistently held that prosecutors have a lot of leeway in their ability to bargain, and basic questions regarding bias are common in any trial where friends and family members of any party are asked to testify as to the material facts of the case.

    Jessica M was not "pressed" into accepting a plea. Jessica M was offered the opportunity to plea to a lesser charge or have a trial. At the time of that trial, her girlfriend would be called to testify to the facts which she knew, in this case finding a bloody scalpel in a purse and putting it back. She would also be asked the very straightforward question that because they were in a relationship, the girlfriend would have no reason to make up or fabricate inculpatory evidence.

    Yes, there would have been a fight regarding the admissibility of the secret nature of the relationship, and that would be more fact-specific than one can get into here. Suffice to say that the rules regarding the admissibility of the character of the defendant are very clear and without actually sitting in on the discussion between Jessica M and her attorney I won't comment on the advice he gave her as I don't know his trial strategy. I will suggest, however, that if the trial strategy entailed not having the defendant take the stand, there would most certainly be an issue with raising character evidence of the defendant's propensity to lie.

    In the end, Jessica M chose not to go to trial because of her own personal issues, just like a straight guy with a mistress or a kinky sex life with his wife or girlfriend might not go to trial under similar circumstances. This is not insidious or unethical, but an example of how a young lady is so embarrassed by her own personal life she would rather hide than defend herself. That's the real crime.

    We need to stop turning closet cases into victims of "the system". The Rules of Evidence are clear on the admissibility of specific pieces of evidence. The prosecutor's ethical obligations are made quite clear in the Rules of Professional Conduct and case law. Suggesting that GLBT people are victims of the system simply by being GLBT only enhances the culture of victimhood.

    Posted by: DR | Nov 18, 2010 10:01:29 AM


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