Appellate Squawk can say more with a pic than I can in a thousand words.
Comes now New York’s highest court with the holding that an accuser’s trial testimony constitutes clear and convincing evidence of the truth of her accusations, even though the jury found her not credible and acquitted the defendant of those charges.
This is the sort of sophistry that only a lawyer can fathom, like “acquitted conduct” in federal sentencing.
In a 6-1 opinion, with only the redoubtable Judge Rivera dissenting, the Court upheld the lower court decision putting the defendant on the internet Sex Offender Registry for the rest of his life based on acquitted charges.
The defendant was acquitted of the three felony charges, convicting him on the misdemeanor of sexual abuse in the second degree. The evidence at trial made clear that the jury found the testimony of the complainant inadequate to convict. So naturally, the trial judge found the testimony sufficiently credible to sentence the defendant as a Level 2 sex offender,
During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York’s Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 20 years.
If this makes absolutely no sense to you, seemingly reducing a jury trial to pointlessness, the explanation requires an appreciation of legalistic gymnastics.
In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton’s classification, noting that it was supposed to be based on “clear and convincing evidence,” a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction. It is possible, in other words, for an alleged crime to figure in a defendant’s risk level even when there is not enough evidence for a guilty verdict.
To be convicted of a crime, a jury must find that the crime was committed by the defendant beyond a reasonable doubt. To be classified as a Level 2 sex offender, however, the judge need only find that the crime was committed by the defendant by the lesser test of clear and convincing evidence. Thus, the acquittal at the higher standard doesn’t preclude the finding at the lower standard. It’s sound technical logic. But it’s nonsense.
Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the “clear and convincing evidence” standard, which requires “a high degree of probability” that an allegation is true. A.B.’s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.
“The verdict can only be understood as reflecting that the jurors did not fully credit A.B.’s version,” Rivera writes. “The acquittals here powerfully reflect the unreliability of A.B.’s testimony. As the trial judge recognized, the jurors were presented with two versions and they had to choose one. In other words, they either believed A.B. or they did not when she testified that defendant had penetrative and oral sex with her in his room.”
Testimony is like pregnancy, it’s either credible or it’s not. If it was credible, then the jury would have found the defendant guilty. They didn’t. They rejected the testimony, finding it incredible, and, indeed, there was good reason for the jury to do so.
But this was a nasty case, with extremely unsavory allegations, and the trial judge found the complainant’s testimony sufficiently pregnant to hold that it satisfied the “clear and convincing evidence” standard even if the jury found it incredible.
Courts abhor sex offenses, despite the absurd claims of the screamers to the contrary. And the defendant here wasn’t pure enough to overcome the taint of the allegations, so they threw him to the wolves.
Naturally the Court doesn’t admit that it moves the goalposts for sex cases. But these days, when it comes to accusations of sexual misconduct, the standard of proof is that they were made. The Court is simply going with the flow — which by definition, is downhill.
So what if the defendant was acquitted? He was still convicted of sexual abuse 2, and isn’t that enough reason to hate him? Why would the New York Court of Appeals take the chance of all those angry women calling them mean names by not being as harsh as possible when the defendant was obviously a horrible, disgusting person whose life should be destroyed.
After all, there was an accusation, and only a bench of shitlords would not believe it was true. Or a jury.
Besides, the sex offender registry isn’t punishment at all. Just a precaution for the sake of the children. Surely you don’t hate the children and want to see them molested by this acquitted defendant?
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