Guestblogger 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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