High Court Weighs in on Kitsap ‘Prior Convictions’ CaseDecember 8th, 2008 by josh farley
If you were on a jury, would you be more likely to find someone guilty if you knew he or she had already been convicted before for criminal acts?
Just how “prejudicial” such information would be to a jury was the subject of a state supreme court decision issued last week on a case that originated in Kitsap County.
Here’s the long story short: Johnathon Roswell, who had previous convictions for third-degree rape and third-degree child molestation, was charged in 2005 with new sex offenses, including “Communication with a minor for immoral purposes,” after police alleged he’d propositioned some 16-year-old girls at a park, the supreme court said.
Here’s why the state supreme court took issue: If a defendant has been convicted of a prior sex crime, a conviction for the gross misdemeanor of “communication with a minor for immoral purposes,” becomes a felony.
That means the jury must find beyond a reasonable doubt that the defendant has the criminal history, meaning they need to know at least what said history is. And normally, juries must stick to the facts of the current case out of our courts’ fear they’ll be prejudiced into convicting by virtue of the fact the defendant has done it before.
There are other crimes where juries must consider a defendant’s previous criminal history. Any guesses of what they are?
A defendant who has violated such an order on two previous occassions (which would each be a gross misdemeanor) is elligible for a felony on the third such conviction.
A defendant who’s had four DUI convictions in a decade long span can get a felony for the fifth, or, anyone with a conviction for vehicular assault or vehicular homicide can get a felony for any DUI thereafter.
So, this issue was bound to come up. Thomas Weaver, Roswell’s attorney, argued before the judges that the jury had been prejudiced against his client due to the past convictions, and that the fairer way to have tried him would have been to have the judge decide whether the criminal history is there, and have the jury do the rest.
There were other arguments (namely that the jury was confused about whether the prior conviction was an element of the crime or an aggravating factor that could result in a lengthier prison sentence), but the central theme was this issue of prejudice.
In another appeals case, a man who’d been charged with a felony violation of a no contact order had his trial effectively “bifurcated,” and jurors decided first that he’d been guilty of the misdemeanor offense, and then later, got a chance to look at the history and decide if it could be elevated to a felony. Weaver argued that this would’ve been fair to do in Roswell’s case as well.
But the state supreme court declined to do such a thing, stating there are many options for trial judges to “mitigate” such prejudice as a previous conviction. They can limit details the jury hears about the previous conviction, or they can, in fact, “bifurcate” the trial to have the previous conviction element decided separately.
In affirming the appeals court’s decision, the supreme court effectively told the parties that judges — the trial court ones, and not themselves — would make the call on how to “mitigate” the prejudice of previous convictions.