January 11, 2009
Federal rules bode ill for federal judge
Next month's trial of U.S. District Judge Sam Kent is likely to be a sad and sordid affair.
According to federal indictments, one handed down Tuesday, two former female employees accuse him of sexually forcing himself on them. He contends that both, for differing reasons, are lying.
The evidence against Kent will hardly be edifying.
To refute it, Kent's lawyer, highly-regarded Dick DeGuerin, will have to attack the credibility of the women.
But modern rules of evidence, say legal experts, limit traditional methods of attacking the character of accusers. And a federal rule instituted in the 1990s may open Kent's own past behavior to examination.
In the first case, involving Kent's former case manager Cathy McBroom, DeGuerin has described the relationship as "enthusiastically consensual."
He suggested she turned on Kent because she had made a mistake in her job that might get her fired.
Kent himself said at a court hearing, "For the record I absolutely intend to testify, and we are going to bring a horde of witnesses."
Clearly he would like to see McBroom on trial.
There was a time when the standard defense in sexual assault cases was to try the accuser, to challenge a woman extensively on her sexual history and paint her as a slut.
But that changed in the 1970s when most states and the federal government passed "rape shield" laws designed to protect women from suffering "a second rape" on cross examination, said Fred Moss, a former federal prosecutor who is now an evidence expert at the SMU Dedman School of Law.
He said a defendant can sometimes get in evidence of his own history with the accuser, but it is very difficult to get in evidence regarding the person's history with others.
Steven Goode, a University of Texas School of Law professor who has written several textbooks on both federal and Texas rules of evidence, said the "rape shield" laws give rape victims the same protections generally given to defendants.
Prosecutors are not allowed to use "extraneous acts" to show that somebody is a "bad person."
"Just because someone has acted badly in other cases doesn't prove that he did in this case," Goode said.
"Courts had allowed evidence of a rape victim's background in contravention of this rule," he said. "Rape shield laws brought rape cases into conformity."
But in 1994, federal rules were taken a step further.
They were amended to allow judges to admit the past behavior of the defendant in sex cases. [Mark Godsey]
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