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October 31, 2013

"Rape acquittals spur calls for law change: Nelson Bernard Clifford has been cleared by four juries since 2011"

The title of this post is the headline of this notable Baltimore Sun article which gets to the heart of some of the issues we have been reviewing this week.  Here are excerpts:

A string of acquittals for a man accused of raping several Baltimore women has renewed a debate over whether the law should be changed to help prosecutors secure sex offense convictions.

Nelson Bernard Clifford, 35, has been cleared in four trials in Baltimore City Circuit Court since 2011. Each time his accusers have testified, but Clifford has said in court that all his encounters were consensual.

Prosecutors have attempted in various ways to show juries a pattern, but have been stymied by city judges, who have rejected attempts by prosecutors to join separate cases together, or to call witnesses to testify about assaults other than the one being tried. State law protects defendants from having to face evidence about their character or any previous crimes in which they were implicated.

Congress changed the federal rules for rape cases two decades ago in an attempt to make it easier to secure convictions. Several states have followed suit. Maryland is not among them.

Marilyn Mosby, who plans to challenge Baltimore State's Attorney Gregg L. Bernstein in next year's Democratic primary, has raised the Clifford cases as an issue. She said Tuesday morning that there is a "glaring need" for the General Assembly to change the rules. "Once a jury is blocked from hearing about somebody like Clifford's past convictions, people like him are free to claim that the sexual assault was consensual, which significantly diminishes the prosecutorial impact of DNA evidence," Mosby said.

A spokesman for the state's attorney said Bernstein would support a change in the law. Spokesman Mark Cheshire pointed out that in the most recent case against Clifford, prosecutors sought to tell jurors about other allegations against him. Prosecutors attempted to discuss eight other incidents in which they say Clifford broke into a home and sexually assaulted a woman, according to court filings. They wrote that the evidence would show Clifford had a plan that he executed repeatedly. "Under the existing evidentiary rules other criminal evidence is admissible in certain circumstances," Cheshire said. "We believe other crime evidence was admissible in the Clifford case but we were ultimately denied."...

Russell A. Neverdon Sr., a private defense attorney who also has said he plans to run against Bernstein, said the existing rules, which allow other allegations to be raised under limited circumstances, are sufficient. "As a prosecutor you have an arsenal that's already there," Neverdon said. "You've just got to make sure it's a solid argument."

But Lisae C. Jordan, the executive director of Maryland Coalition Against Sexual Assault, said Maryland's judges err on the side of protecting defendants. She said they do not give rape victims a fair chance at winning justice in the courts. "It's all a question of balance, and unfortunately, right now we don't have balance at all," Jordan said. "We completely favor the defendant."

Congress rewrote the federal rules on evidence in rape cases in 1994, over the objections of judges and defense attorneys. The General Assembly has considered several bills that would make it easier to introduce evidence of other attacks in sexual abuse cases, but only those in which the victim was a child. None have passed.

State Sen. Lisa A. Gladden, the vice chairwoman of the Senate Judicial Proceedings Committee, said that the legislature should not make changes to the rules on the basis of a single "bad case." The Baltimore Democrat, who is a defense attorney, warned that such changes could spill over into other types of offenses and undermine defendants' rights. "I don't like messing around with the rules of evidence," Gladden said. "If you can't get a conviction, fix your case."

October 31, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink


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I am having issues with posting comments. If this is a repeat I apologize but I didn't see anything on the blog after I thought I posted something.

I am confused about the procedural issues the prosecutor is encountering. Assuming this article is accurate, Clifford has 8 other incidents where he broke into someone's home and sexually assaulted a woman.

More appropriately, he broke into someone's home and committed Sexual Offense (Maryland language).

So we keep shooting for Rape and missing. Why not find an easier target?

WHy not just get Clifford for Burglary if the Rape charge won't stick. In MD, sexual offense appears to be a violent crime. If you break into someone's home with the intent to commit a crime of violence it is burglary in the 1st degree. Max penalty of 20 years.

If sexual offense is not a violent crime, we still could get him on Burglary in the 3rd degree which just requires the breaking in part with the intent to commit ANY crime. sexual offense is most certainly a crime as it ranges from a first degree felony to a 4th degree misdemeanor.

Burglary is usually associated with stealing items or property but we did discuss how today's rape laws evolved from an idea that a woman's sexual autonomy was a possession...of sorts. It belonged to the man who claimed her (father or spouse) but it "belonged" to someone. In some ways, Burglary sort of describes what has happened: CLifford violated a possession of these women. Granted it does not satisfy my sense of justice but, at least it's something.

If he committed rape, he's a rapist and we want to punish him as such (minimum 25years ).


Even if we don't max CLifford out on the Burglary charges, they could at least incapacitate the 35 year old for the majority of his adult life. It seems that a burglary charge could and would require the in-depth look at CLifford's background to prove his intent was to commit a crime and it would follow that the jury would need to be informed about the prior charges and actions of the Defendant.

EVen if this is wrong and there is some topic that our "Basics of substantive Criminal Law" class has not yet touched on where this idea is inaccurate it doesn't change the question I Have:

Say we could get him for 8 ten-year sentences on Burglary and they run consecutively instead of 4 twenty-five-year sentences for Rape. Either one almost guarantees Clifford doesn't see another day as a free man.

Would people be OK with this? If we "know" a guy is a serial rapist but cannot prove this to a jury beyond a reasonable doubt he is but can still punish him the same? Today's society sort of glorifies burglars like these guys who made out with 50 mil earlier this year: http://www.cnn.com/2013/02/19/world/europe/belgium-diamond-heist/

OR EVEN THESE guys: http://www.youtube.com/watch?v=b_bzUIbE5jo

What sorts of things do we need to consider when making a decision like this? The victim is obviously a major concern but isn't the criminal justice system concerned with the public at large too? How should we balance things of this nature?

Posted by: Christopher Sponseller | Nov 1, 2013 9:09:48 AM

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