EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 31, 2015

Cream City Chronicles: Episode 5 of Unsolved and the Admissibility of Fetish Evidence

I've written three posts about (herehere, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 5 of the podcast, which addresses another suspect in the case, Michael Uporsky a full-time substitute teacher and hall monitor who helped coach girls basketball.* Specifically, this post is about the admissibility of fetish evidence.

Unsolved

Pursuant to Federal Rule of Evidence 404(b)(2),

[Evidence of a crime, wrong, or other act]...evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 

Every state has some type of counterpart to this federal rule, including Pennsylvania and Wisconsin. In Pennsylvania, what this likely means is that other women will be able to testify about Bill Cosby giving them quaaludes and sexually assaulting them in his forthcoming trial. Such evidence would tend to establish a modus opeandi/m.o.** that is distinctive and similar to the crime charged. See, e.g., Rhine v. State, 336 P.2d 913 (Okla.Crim.App.1959) (testimony by four patients that doctor gave them sleep-inducing drugs and then sexually assaulted them was admissible m.o. evidence).

In Wisconsin, what would this mean if Uporsky were ever charged with Zera's murder? According to the podcast, among other issues, Uporsky seemed to have a foot fetish, particularly when those feet belonged to younger boys:

The first time someone called the authorities about Uporsky, he was 12 and lured a 6-year-old boy into his house with the promise of a puppy. He admitted removing the boy's shoes, but said he didn't remember what happened after that.

Two years later, a 12-year-old boy's mother called the police, saying Uporsky grabbed her son, knocked him down, removed his shoes and twisted his toes....

Less than a year after that, Uporsky was reported to police for leading a 9-year-old boy into a yard, making him lie on his stomach, and taking off his shoes....

When Uporsky was 22, he picked up an 18-year-old hitchhiker and drove to a wooded area off Honey Creek Parkway, telling him, "Walk over to the bushes and you won't get hurt," according to police reports from the time. He then threw the teen to the ground, removed his socks and shoes and played with his feet.

The following year, a 12-year-old boy delivering newspapers said Uporsky forced him into a garage, got on top of him and tickled his feet.

Not long after that, a Brown Deer 14-year-old accused Uporsky of similar behavior.

These incidents were significant to investigators in the Zera's case because "Zera's blue socks were tucked into his shoes, leading police to believe someone with an unusual interest in boys' feet could be his killer." 

If Uporsky were ever charged with Zera's murder, would this "other act" evidence be admissible? In Hester v. Ballard, 2015 WL 5474083 (S.D.W.Va. 2015), prosecutors were allowed to introduce evidence of the defendant's unusual fetish of "toe sucking" based upon the victim testifying that the defendant engaged in "toe sucking" while sexually assaulting her. I think, however, that the nexus between this fetish and the crime charged is much closer than the nexus between Uporsky's prior acts and the placement of Zera's socks in his shoes.

In any event, the State eventually dispensed with Uporsky as a suspect in the murder, meaning that his only likely prospective relevance would be as as alternate suspect if someone else is eventually charged with Zera's murder. If that were the case, would the defendant be able to claim in court that Uporsky was Zera's murderer and support the claim with evidence of Uporsky foot fetish?

I doubt it. I wrote about Camm v. State, 908 N.E.2d 215 (Ind. 2009), a few years ago. In Camm, David Camm was charged with murdering his wife and two children. At trial, Camm tried to claim that another man, Charles Boney, had committed the crimes.

At trial, the defendant unsuccessfully sought to introduce Boney's "four felony convictions for robbery in which women's shoes were the target and that [Boney had] an admitted foot fetish and shoe fetish"...as evidence of Boney's (1) motive to commit the murders and (2) identity as the murderer.

In agreeing with this decision on appeal, the Supreme Court of Indiana concluded that

The defendant's claim that Boney's alleged foot and shoe fetish was the motive for these crimes fails because there is no evidence connecting these crimes to a foot or shoe fetish beyond the wife's shoes being off and her feet being bruised. In these circumstances, the defendant's contention is really that we should infer guilt on Boney's part because of his sexual compulsion for feet and shoes. This is the "forbidden inference" prohibited by Evidence Rule 404—that evidence of a person's character or character trait, such as crimes, wrongs, or acts, cannot be used to show action in conformity with that character or character trait—and by this Court's jurisprudence. Evidence regarding Boney's criminal history and alleged foot and shoe fetish was properly excluded under the Rules of Evidence.

The same would seem to apply here. While it may seem odd that Zera's socks were tucked into his shoes, there is no evidence connecting Zera's murder to a foot, shoe, or sock fetish. As such, the evidence would almost certainly be inadmissible.

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*When the principal at Zera's school initially turned over a list of male employees at the school, Uporsky's name wasn't on it. Undisclosed listeners might draw a parallel to the State's failure to turn over the notes from the interview with the soccer coach at Woodlawn High School despite turning over the notes for every other interview with a Woodlawn employee.

**Modus operandi is Latin for method of operation.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/12/ive-written-three-posts-aboutherehere-and-here-abouttheunsolvedpodcasta-deep-dive-into-the-unsolved-1976-disappearance-a.html

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Comments

Thank you for all the posts. I actually think I am beginning to understand this legal process a lot more than I ever had. My sister-in-law (defense attorney) is now reading your post and says you are brilliant.
NavyMom

Posted by: NavyMomo | Dec 31, 2015 4:41:53 AM

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