Bill lets jurors know of sex crimes

OLYMPIA – A controversial proposal – making it easier for jurors to hear about a suspect’s past sex crimes, even ones they weren’t convicted of – barely survived a key deadline in the Statehouse on Friday.

Prosecutors say it’s difficult to get such information into a trial now, so a predator with a history of victimizing people can be wrongly viewed by jurors as someone facing a first-time accusation.

Defense lawyers say that eroding that protection would inflame jurors and, as one put it Friday, be “the kiss of death” for a fair trial.

Under Washington’s rules of evidence, past crimes or acts can only be used against someone under certain circumstances. In 2003, the state Supreme Court ruled that prior sexual misconduct involving a different victim is admissible evidence, so long as the crime is “substantially similar.”

Senate Bill 6933, prime-sponsored by state Sen. Chris Marr, D-Spokane, would make it easier to include those past incidents in a trial. A judge, proponents say, would still have final say on admissibility.

Tom McBride, with the state prosecutors’ association, said that juries are skeptical when shown facts suggesting that a 55-year-old – out of the blue – suddenly became a child molester. It would be different, he said, if they could hear about the person’s past crimes as well.

Prosecutors point to the case against a King County nursing assistant named Lamin Darboe, who in December was sentenced to at least 8 1/2 years in prison for raping a paralyzed stroke victim he cared for.

Darboe’s first trial in the case ended in a hung jury, said King County deputy prosecutor Lisa Johnson, despite the fact that two other patients said they’d been sexually abused by him. But the jury never heard about those allegations.

Defense attorneys say the change would threaten defendants’ right to a fair trial. People are quick to presume that sex offenders will reoffend, said Amy Muth, with the Washington Defender Association. It’s hard to imagine more inflammatory allegations than past sex crimes, she said, and under Marr’s bill, it wouldn’t even have to be a conviction.

State senator – and private attorney – Brian Weinstein, D-Mercer Island, agreed.

“It’s going to be a presumption of guilt, that’s the problem I have with this,” he said.

Lawmakers narrowly voted the bill out of committee Friday but vowed to amend it further.

The bill’s passage was one of two victories for Marr, who also persuaded reluctant lawmakers to have a state sentencing commission examine the statutes of limitations for sex crimes.

Marr and other lawmakers, including Rep. John Ahern, R-Spokane, have repeatedly tried to do away with the statute of limitations for child sex crimes. But each time, the bill has been stymied. Prosecutors have said it would create unrealistic expectations among victims of decades-old crimes. And defense attorneys and some lawmakers have said it would be hard to defend against such allegations. Records and alibis would be lost, and memories would fade.

“I am not interested in doing away with statutes of limitations,” said Sen. Adam Kline, D-Seattle, the attorney who chairs the Senate Judiciary Committee.

So Marr’s fallback position is SB 6362, which would tell the state Sentencing Guidelines Commission – whose members include prosecutors, defenders and Kline, among others – to study the issue.

The proposal has drawn fire from former Spokane County Prosecutor Don Brockett, who says it does too little.

“Again the Legislature has shown they favor the molesters, not the children,” Brockett wrote in an e-mail to supporters this week.

Marr says he’s just being a realist.

“There are people like Don Brockett who say all or nothing,” Marr said. “Well, all or nothing hasn’t gotten us very far.”