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December 1, 2009

Child porn on murder victim's computer helps murderer reverse death sentence

A new ruling today from the Supreme Court of Missouri provides yet another bit of evidence concerning the profound significance and potential impact of downloading child porn.  This local news story, headlined "Death sentence overturned in 2002 Cape Girardeau murder," reports the basics:

The Missouri Supreme Court on Tuesday reversed the death sentence for Mark A. Gill, who was convicted of the 2002 murder of Ralph Lape of Cape Girardeau County.

In a unanimous ruling, the court found that Gill's trial attorneys failed to find out about and use information about child pornography on Lape's home computer to rebut testimony that Lape had a good character.  The ruling sends Gill's case back to the trial court, which could bring in a new jury to decide whether to re-impose the death penalty or sentence Gill to life in prison without possibility of parole.

Gill, 39, has been on death row since April 2004, when a New Madrid County jury found him guilty of abducting Lappe from his home, binding him with plastic ties and duct tape and murdering him in a corn field near Portageville, Mo.  A second man, Justin Brown, is serving life in prison without parole for his role in the crime.

The full opinion of the Missouri Supreme Court is available at this link, and here is a section from the start of the opinion:

Among the issues in this case is whether Gill’s counsel provided ineffective assistance of counsel by failing to review carefully the directory of the victim’s computer, which contained child pornography, or by not interviewing or deposing the investigator who prepared the directory.

Although a victim’s character is not typically an issue, when the State introduced evidence of the victim’s good character in the penalty phase, Gill’s counsel should have rebutted the State’s good character evidence with the sexually explicit contents of the victim’s computer. Because his counsel failed to discover the sexually explicit contents of the victim’s computer, Gill’s counsel were ineffective.  This Court affirms the denial of the Rule 29.15 motion as to the guilt phase of the trial, but reverses the denial of the motion as to the penalty phase insofar as Gill had ineffective assistance of counsel for failing to investigate the victim’s computer.  The case is remanded.

December 1, 2009 at 06:50 PM | Permalink

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Comments

So now defense attorneys can go fishing though a victim's life? Wow. Really dumb decision.

Posted by: federalist | Dec 1, 2009 7:10:36 PM

Having been admonished repeatedly here that kiddie porn isn't as bad as puritanical types pretend, we are now told that, in fact, it's plenty bad, so much so as to make a huge difference in sentencing.

Oh, wait, wait. Now I get it. Kiddie porn IS bad, provided it helps a KILLER escape the jury's sentence.

Far out.

P.S. When the murder victim was, in effect, convicted of possessing kiddie porn, how effective was HIS lawyer?

Posted by: Bill Otis | Dec 1, 2009 7:47:55 PM

This opinion made a lot of sense to me. It was the prosecution that introduced evidence of the victim's character (presumably to get a death sentence rather than LWOP). I certainly think the defense has an obligation to challenge that characterization of the victim's character during the penalty phase if it has evidence to do so.

I don't think he was "in effect" convicted of possessing child porn. All the happened is the prosecution made a claim and the defense should have said, "maybe that's not so."

federalist. Only if the prosecutor goes their first. It seems to me it was the prosecutor that was dumb.

Posted by: Daniel | Dec 1, 2009 8:11:25 PM

Daniel, thanks for pointing that out. While it's easy and popular for people to blame defense lawyers and "liberal judges" for the time that capital appeals take, this is yet another example where a more nuanced view exposes the role that prosecutors play in the legal errors that so often result.

Posted by: dm | Dec 1, 2009 8:40:01 PM

As a clever defense lawyer, I would always intentionally neglect some inflammatory piece of evidence, totally irrelevant to establishing the guilt or innocence of my client.

This would preserve the inadequate counsel argument in every single one of my cases.

It is now professional standard of due care to leave this poison pill behind. Any defense lawyer not leaving behind evidence showing inadequate representation is committing legal malpractice.

Posted by: Supremacy Claus | Dec 1, 2009 8:59:05 PM

dm --

I must disagree. This appeal illustrates why much of the impatience with these interminable post-conviction processes is justified.

No one thinks the defendant didn't do it. No one thinks he acted other than maliciously and intentionally.

There's an old saying that, just because she's a whore, that doesn't mean she didn'ty get raped. Similarly here. The victim might have been the biggest perv around, but that has nothing to do with the defendant's malevolent intent or his factual guilt, which are by far the most important factors in deciding the punishment.

Posted by: Bill Otis | Dec 1, 2009 11:54:13 PM

Bill.

"which are by far the most important factors in deciding the punishment."

You were in the jury room. How fascinating. Did the presiding judge know that?

Posted by: Daniel | Dec 2, 2009 2:36:56 AM

The question for Bill Otis and Federalist is, why was the prosecution able to introduce favorable evidence of the victim’s character? It raises the inference that some murders are worse because the victim was such a nice guy. If the victim had been a homeless vagabond, would it have made the crime any less serious?

As I gather, if the prosecution is using the victim’s good character as a reason to impose the death penalty, then competent defense counsel has an obligation to refute that assertion, if possible. As noted in the opinion, the prosecution didn’t have to focus on the victim’s character at all.

Posted by: Marc Shepherd | Dec 2, 2009 8:23:24 AM

The reason that character evidence of the victim is ok is that it shows, in concrete terms, how mad murder is. It's not to suggest that some victims are better than others.

Posted by: federalist | Dec 2, 2009 9:48:07 AM

Marc Shepherd --

I don't know Missouri state law, and I have not read the opinion, so I offer you no more than informed speculation. It may be that Missouri law allows the jury to consider victim impact in deciding the sentence. As part of the evidence showing victim impact, the prosecutor might have sought to establish that the victim had given hours to Habitat for Humanity, or had volunteered to do errands for disabled veterans, and so forth.

Although that is evidence of prior acts, and not of character per se, it could have been enough for the court to have considered the issue of the victim's character to have been opened, and thus a proper target for the defense.

For the most part, I agree with the thrust of your post. It was very likely legally proper for the prosecutor to go into evidence of the victim's good works and character, but it is doubtful to me whether (1) the law should allow that, and (2) even if so, whether it was a prudent tactical decision in this instance.

As you suggest, a murder is neither more nor less serious because of the status of the victim. The victim was a human being, and that's enough. The principal factor a sentencer should consider is the culpability of the killer, not the character or identity of the victim. (The exception is when the character or identity of the victim was part of the killer's motive, e.g., where a person (like Maurice Clemmons) kills policemen BECAUSE they are policemen).

The problem with victim-character evidence is that it invites the sentencer to act on the basis of sentiment. Some sentiment in a murder trial is, of course, unavoidable, but there's no good reason to make things worse.

Even if victim character evidence is legally admissible, however, the prosecutor was imprudent to introduce it here, given the impeachment-by-porn that was available to the defense. Of course it may well be that the prosecutor had no idea that the porn existed. When I was an AUSA, I doubt it would have occurred to me to have the agent look on the victim's home computer, and if it did occur to me, I doubt I would have done it anyway, since I would have regarded it as abusive and insulting to the victim's widow and family.

On the other hand, I would not have been asking for a death sentence because of the victim's character to begin with. As noted, I personally do not believe that that is a sound basis upon which to ground a sentence.

Posted by: Bill Otis | Dec 2, 2009 10:20:59 AM

Is what the prosecutor did akin to asking questions you don't know the answer to?

Posted by: John K | Dec 2, 2009 10:53:04 AM

My initial reaction was to think this decision was absurd. But after reading the opinion I have to agree that the prosecution opened the door to this nonsense by introducing victim character evidence, which has no place at a criminal trial.

The larger issue here is that we see how the victims' rights movement has been a Pyrrhic victory for actual victims. Criminal trials should be about assessing guilt and sentencing should be about punishing acts and the malice in the criminal's heart, not about prosecutors falling over one another to prove who is the biggest friend of victims. But here, as a result of this mistake of giving victim impact too formal of a role in the criminal process, the victim's family must go through not only a new sentencing phase but see their deceased loved one's name dragged through the mud posthumously.

This case ought to make us realize that what best serves the interest of victims is sober, dispassionate and efficient administration of justice to criminals based on the wrongness of their acts. If only that had been true here.

Well done, self-annointed champions of victims. Well done.

Posted by: Matthew | Dec 2, 2009 11:20:14 AM

John K --

Somewhat, it would seem. Not a smart move, but not even close to unethical.

Posted by: Bill Otis | Dec 2, 2009 12:06:30 PM

No, Bill, not unethical. Yet it seems a safe bet that if the prosecutor had encountered Lappe when he was alive, the prosecutor's angelic-in-death victim would have been portrayed as the devil.

Whatever it takes for the desired outcome.


Posted by: John K | Dec 2, 2009 2:01:44 PM

Without commenting on the merits of the decision, I think it's safe to say it has far-ranging impact when the prosecutor does seek the death penalty for any one of many reasons that are generally considered legitimate (if not required as a practical matter).

Prosecutor seeks the death penalty because the defendant killed a father of four, and thus destroyed a family. What if the father abused his kids?

Prosecutor seeks the death penalty because the victim was an influential member of the community. What if the victim moonlighted as a drug dealer to teenagers, or was secretly a Klansman?

I also don't see why this decision only applies to death penalty cases. It seems to me it would apply with nearly equal fervor to non-murder cases where the prosecutor seeks an enhanced sentence that the court grants.

I fear the decision is going to start creating layers upon layers of bear traps for defense attorneys if they do not exhaustively investigate every nook and cranny of a victim's life. And then, when defense attorneys inevitably fail to check every closet in searching for skeletons, it will be up to courts to decide, in their infinite wisdom, whether the defendant was "prejudiced."

Posted by: Res ipsa | Dec 2, 2009 2:54:31 PM

I can't agree that "the defendant's malevolent intent or his factual guilt, . . . are by far the most important factors in deciding the punishment" in a capital case. Or at least I can't agree that they *should* be the most important factors .

Once you get to the punishment phase, factual guilt has been decided in every case. Similarly, most capital cases will either require or include, in practice, proof of specific intent to kill at the guilt phase. Thus, the language above would imply that all capital defendants should receive death on the basis of the factors already determined by the guilty verdict. That is a legitimate viewpoint in terms of what the law should be, but that is most definitely not what the law now says (which is why potential jurors who express that viewpoint--that anyone convicted of capital murder should be executed--may be dismissed for cause unless rehabilitated).

Posted by: Anon | Dec 3, 2009 10:07:32 AM

Anon --

Two quick points. Although guilt is not at issue in sentencing, things get ramped up in a capital case. If I were a juror in such a case, I would vote guilty if convinced of same beyond a reasonable doubt, but would not vote for death unless I was convinced of guilt beyond and rational doubt whatever. A narrow difference to be sure, but one I suspect influences capital sentencing decisions.

Second, there are degrees of intent, and degrees of malice. Getting mad at someone in a bar fight and belting him over the head with a chair is one thing. Imprisoning a person for months in a basement dungeon and torturing him/her to death is something else.

Posted by: Bill Otis | Dec 3, 2009 11:39:00 PM

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