Propensity/Who Cares?


“The underlying premise of our criminal justice system is that a defendant must be tried for what he did, not who he is.”
— (Gershman, Prosecutorial Misconduct, at § 10:2, pg. 10-4 [quoting the American Bar Association’s Standards for Criminal Justice])  

The Albany County Sheriff’s Department began an investigation of Jeffrey Nickel after he wrote a letter, with non-sexual photographs of children enclosed, to an inmate at the Albany County jail. This letter and enclosures were not contraband. Nevertheless, facility personnel went beyond the legally-authorized search for contraband, thereby violating not only the jails’ own written policy regarding inmate mail, but also state statutes pertaining to incoming mail.

Moreover at Jeffrey Nickel’s trial, prosecutor Peter Torncello openly acknowledged that this inmate’s incoming mail was subjected to special scrutiny because “Matthew Peters was an inmate in the Albany County Correctional Facility who had been convicted of … sexually abusing young boys.”


The prosecution of Jeffrey Nickel occurred without regard to the presumption of innocence. From start to finish, prosecutor Peter Torncello made Nickel’s alleged sexual preferences the central issue in his trial. Indeed, the very first words uttered by Torncello were a reference to the former’s purported sexual orientation:  “Judge … Jeffrey Nickel is a boy lover.”


The prosecution used the term “boy lover” a total of 13 times. “NAMBLA,” which stands for the North American Man-Boy Love Association, was also employed a total of 13 times. And counting conservatively, there were an additional sixteen occasions when either Torncello or prosecution witnesses drew attention to Nickel’s purported proclivities by some other means. In total, there were at least 42 propensity-related references, none of which had any bearing on any of the specific acts he was charged with.


Prosecutor Torncello also alluded to Nickel’s alleged propensities at the beginning of his closing argument: “Your Honor, the best evidence, that we have heard over the last two days, and most compelling evidence that we heard … may not have come from the witness chair … The evidence before the Court, for the Court to consider is that, Jeff Nickel, is a boy lover.” Essentially, this was an invitation for the judge (in this non-jury ("bench") trial) to convict based on purely prejudicial propensity evidence, as opposed to admissible, incident-related evidence. Indeed, although Torncello’s closing argument was replete with references to the defendant’s purported sexual preferences, it is without even one piece of factual, admissible evidence that would tend to show Nickel was guilty of any of the acts he had been charged with. (After he was fired from the district Attorney’s office for allegedly mishandling another sex abuse prosecution, Peter Torncello actually listed the Jeffrey Nickel conviction on his resume.)


An appeal from back in 1987 which resulted in convictions being overturned, People v. Bagarozy (132 A.D.2d 255, 522 N.Y.S.2d 848 (1st Dept.), bears a striking resemblance to the Jeffrey Nickel case. There as well, the defendant’s alleged affiliation with NAMBLA was made a central issue at trial. The other major commonality between the two cases was the fact that neither defendant took the stand:


“Defendant … chose not to testify. The prosecutor nevertheless made his sexual orientation the central focus of the trial, as she filled the record with evidence of defendant’s propensity to engage in sexual activity with young boys. She introduced evidence that he was affiliated with … (NAMBLA) … as proof of his ‘intent’ to commit sodomy … Since we are unable to ascertain any justification for these trial tactics and find that defendant was denied the right to a fair trial, we reverse the conviction and remand for a new trial.


"The issue at trial was whether defendant had engaged in several discrete acts of oral sodomy with underage youths, not the state of mind with which those acts were committed. Yet, by successfully arguing a variety of inapplicable and implausible theories of admissibility, the prosecutor was able to place before the jury a wealth of prejudicial information about defendant’s lifestyle and associations. As the prosecutor’s summation makes graphically clear, the true purpose behind the introduction of this evidence was to expose defendant’s sexual preferences and attitudes in order to demonstrate a propensity to commit the crimes charged. The use of this evidence for such a purpose was a clear violation of well settled legal principles.” (Id., at 849, 853-854)


The appellant’s brief in Bagarozy provides additional insights into the similarities between it and the Jeffrey Nickel case:


“To buttress weak proof of sexual activity, the prosecutor filled the trial with evidence of appellant’s propensity to engage in sex with underage youths. She seized upon every pretext to expose appellant’s lawful affiliations, writings, legal activism, and personal effects – sometimes under color of an implausible theory of admissibility, but more often in brazen defiance of the court’s rulings. Appellant’s beliefs became a substitute for legitimate proof of his deeds … Only the highest professional standards should prevail in the prosecution of sex crimes against young people. When prosecutions (and prosecutors) do not measure up, only reversals convey an unmistakable message that the standards will be upheld.” (Id., at 4, 65)


There are numerous other state, as well as federal, cases where convictions were reversed because of the introduction of just this sort of ‘pure propensity’ evidence.

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“I defy anyone to show how I was proven guilty beyond a reasonable doubt. I used to believe there was some justice in the system. Not anymore. I just sit here angry and depressed.” 

Interview in “48 Hours Investigates,” 12/17/05

When someone is wrongfully convicted, it is not just he and his loved ones who suffer. If people are convicted for serious things that they did not do, what does that do to the notion of deterrence? Some people will surely say to themselves:  “Well, if they’re going to convict me whether I do it or not …” It breeds disrespect for and cynicism towards the law generally. And when a wrongful conviction is allowed to stand, the police, prosecutors, and judges are further emboldened to use any means necessary to achieve their desired ends. Kangaroo courts are something that we criticize other countries about.


This is the test of a true democracy:  In very politically difficult cases, does the government do the right thing? Because if the Constitution will protect even supposed ‘scum bags,’ then it will protect you too.

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On December 25, 2005, there was an article in the New York Times about Ayman Nour, a leading opposition figure in Egypt, being sentenced to 5 years hard labor for supposedly forging signatures to form his political party: “This verdict against Ayman Nour is a political decision and not a judicial one,’ said Amir Salem, Mr. Nour’s main lawyer, as soon as it was announced. ‘We will appeal’.” (“Testing Egypt, Mubarak Rival Is Sent to Jail,” by Michael Slackman, pg. 1)


“The idea of holding people accountable for their dispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence:  namely, that people are responsible for their behavior, not their proclivities – for what they do, not what they think.” (“The Trials of Neurolaw,” by Jeffrey Rosen, New York Times, March 11, 2007, pg. 82)


“’Do you know how many people are in the penitentiary who are not guilty, but who are hated? History is filled with people who have been convicted not because they are guilty of anything, but because they were hated. That’s the great technique:  if you can make somebody hated and tell half-truths about them and rip out the presumption of innocence from them, and ignore the law …, if you can make people hate, well, then you can convict them without evidence.’” (from The Smoking Gun, by Gerry Spence, Scribner, 2003, at 395-396) [Spence’s closing argument in a murder trial.]





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