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Supreme Court reverses rape conviction

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The Indiana Supreme Court overturned a man's rape conviction because evidence of his 10-year-old conviction of attempted rape of another woman shouldn't have been admitted at trial.

Indiana Evidence Rule 404(b) prohibits the use of evidence of prior crimes "to prove the character of a person in order to show the action in conformity therewith" except in certain circumstances. The justices unanimously decided in Otho L. Lafayette v. State of Indiana, No. 45S03-0904-CR-812, that the trial court erred in admitting evidence of Otho Lafayette's prior attempted rape conviction and ordered a new trial.

Wickizer v. State, 626 N.E.2d 795 (Ind. 1993), determined the state was best served by a narrow construction of Evid. R. 404(b) and held that the intent exception is available when a defendant goes beyond merely denying the charges and alleges a particular contrary intent. The state then can offer evidence of prior crimes to prove intent at the time of the charged offense.

Lafayette never denied having sex with the woman, C.E., but claimed it was consensual.

Lafayette filed a pre-trial motion to prevent the admission of his prior conviction and the court took it under advisement. It then allowed the evidence after determining Lafayette placed his intent at issue when he attacked the credibility of his accuser on the issue of her consent and the court found it was relevant to determine whether he possessed the requisite intent to rape his victim.

Neither state appellate court has addressed the question of whether challenging the credibility of a prosecuting witness in a rape case on the issue of consent puts the defendant's intent at issue. But Indiana precedent dictates the use of the defense of consent in a rape prosecution isn't, standing alone, enough to trigger the availability of the intent exception, wrote Justice Frank Sullivan.

"When a defendant questions the credibility of the prosecuting witness, we believe that the defendant does no more than advance that consent defense," he wrote. "...If a defendant's intent were placed at issue by the questioning of the prosecuting witness's credibility, then the defendant is effectively precluded from exercising the right to confront a witness's credibility at all."

The Supreme Court also agreed with Indiana Court of Appeals Judge Terry Crone, who wrote the majority opinion for that court, that a defendant's assertions that an alleged rape victim consented to sex doesn't present a claim of particular contrary intent for purposes of triggering the intent exception to Evid. R. 404(b), wrote Justice Sullivan. The justices also agreed with Judge Crone that the prior attempted rape conviction wasn't admissible because it wasn't relevant to prove the victim consented to having sex with Lafayette.

The admission of this evidence wasn't a harmless error and requires Lafayette's conviction be reversed, the high court determined.

"Indeed, on review of the record, one is left with the unmistakable and forbidden impression that because the defendant was convicted of attempted rape in 1997, he must have raped C.E. in 2007," Justice Sullivan wrote.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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