Tuesday, January 29, 2013

Did the legal system fail by acquitting Lloyd of rape?

In commenting on my Luca post, Anonymous (in part) asked the following:

"Can you explain how and why the legal system failed in this case, would it still fail under today's system?"

I thought this was a really good question.  I'm going to answer it, not as a prosecutor who works for the state agency in my state (because this is a case in another jurisdiction that is separate from my professional role) but as a lawyer who went to law school and knows where to look on the internet for publicly available information.  This is neither a statement of the official policy or position of my employer, nor is it based on any "insider" information.

The short answer is, the legal system only failed to the extent that the State did not foresee his testimony that he wanted to rape, tried to rape, and couldn't because of impotence.... nor did the State foresee testimony which would call into question the victim's ability to accurately identify all those who penetrated her.  (These are the two sticking points which saved him from proof beyond a reasonable doubt.) 

I would only imagine getting a better result if the State had taken the prescient step of charging him with an attempted assault, charging him additionally as a party (that's what we call it in Texas; in Virginia I believe the call it a principal in the second degree), and charging him with kidnapping.  And on to the long answer:

First, let's consider what information is available in the newspaper articles of the time.  The links were posted in a Sherdog post.

Found here: (I'm going to post the relevant portions for our conversation with my comments in brackets)

April 24, 1990| By RONNIE CROCKER Staff Writer
NEWPORT NEWS — Two men charged with participating in a gang rape of a 17-year-old Hampton University freshman were acquitted Monday of rape.

[Irvin was only charged with rape as no evidence indicated that he forced her to go down on him, and Gatlin was charged with both sodomy, for the forced fellatio, and rape, for holding her down while Irvin raped her.]

One of the defendants, 21-year-old Terrence C. Gatling, was found guilty of sodomy for forcing the girl to have oral sex with him.

[Note: this means that forcible oral sex is not considered "rape" under the laws in effect at that time.]

. . .  Jurors contacted later said they believed Irvin when he testified he wanted to have sex with the girl, but was temporarily impotent. Uncontested testimony revealed that the girl had oral sex a nd sexual intercourse with seven to 10 men in Gatling's apartment. . . She maintains it all happened against her will; the men claim she was a willing participant, a "freak," as one witness described her.

Juror Paul J. Hoyt, an electrical engineer, said he believes the girl was the victim of a gang rape.
"I think it's obvious from the verdict that we didn't think she was there voluntarily," he said Monday afternoon.
. . .
The six men and six women on the jury deliberated more than four hours . . . after sending out a note asking whether they could convict the men on lesser charges.  On Monday morning, Circuit Judge Robert W. Curran told them they could not. Foster said it was the consensus of all attorneys involved that to allow lesser charges that late in the proceedings would put the case in danger of being overturned on appeal.

[The prosecutors did not get an indictment against/charge Irvin for any other crime prior to the trial's start, such as attempted sexual assault.]
 . . .
Defense attorneys Ron Smith and John J. Rice argued repeatedly that the girl, a scholarship student who had been on campus only six weeks when the incident occurred, did not claim she was raped until she realized that word of her tryst was spreading across campus.

[Ergo the jury was presented with the defense theory that she was a dirty whore who had a train run on her and only regretted it later.  But the jury did not believe it, otherwise, they couldn't have found Gatlin guilty of sodomizing her.]

. . .
At one point, she said, Gatling held her down and forced her to have oral sex with him, while Irvin had sexual intercourse with her. The two defendants testified the girl had invited Irvin to have sex with her and offered to perform oral sex with Gatling after Irvin was temporarily impotent.

[The jury rejected this defense theory, again, because they convicted Gatling of forcing her.]

Juror Bessie Mae Singleton, who is also a candidate for City Council, said she believes the girl was the victim of a gang rape, but she was not convinced of Irvin's role.
"I had doubt and that is what saved Lloyd Irvin," Singleton said. "If I could have done it without that doubt, believe me, he would have served some time."
Gatling was charged with rape because the victim said he helped Irvin by holding her down. Singleton said she believes the girl may have mistaken Irvin for someone else.
"It could have been someone else that penetrated her," Singleton said.
 [end of article]
_______________________________________________________________________________

 So that tells us that the legal system did what it was supposed to do, to my way of thinking.  The prosecutors brought the charges to the grand jury that their evidence supported-- rape against Irvin and sodomy against Gatlin. They didn't know, before the trial, that Irvin would claim impotence or that the victim would testify in some way which called into question her ability to solidly identify Irvin as having penetrated her.  Now with the advantage of hindsight it's easy to think of covering all the bases more thoroughly, and I like to believe a more experienced prosecutor might have done so in the spirit of CYA.  But it doesn't mean the laws needed to change.

Here's the law that applied at the time:
CODE OF VIRGINIA
Copyright (c) 1949-1989 by The Michie Company, All rights reserved.
TITLE 18.2. CRIMES AND OFFENSES GENERALLY.
CHAPTER 4. CRIMES AGAINST THE PERSON.
ARTICLE 7. CRIMINAL SEXUAL ASSAULT.

§ 18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness who is not his or her spouse or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person, or (ii) through the use of the complaining witness's mental incapacity or physical helplessness, or (iii) with a child under age thirteen as the victim, he or she shall be guilty of rape.
. . . 
§ 18.2-67.1. Forcible sodomy.

A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anallingus, or anal intercourse with a complaining witness who is not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and

1. The complaining witness is less than thirteen years of age, or

2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
 
* * * * *
 
Unless it is otherwise stated, if a statute makes an act criminal, it imposes on all persons who are present purposely giving aid and comfort to the actual wrongdoer criminal responsibility equal to that of the wrongdoer. Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443 (1954).
 
Incapacity to commit the offense is no defense. — The mere fact of incapacity to commit an offense as a principal in the first degree does not prevent one who aids and abets the principal offender from being held criminally liable as a principal in the second degree. Adkins v. Commonwealth, 175 Va. 590, 9 S.E.2d 349 (1940).

If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime. The question of whether the offense is the natural and probable result of the intended wrongful act is usually for the jury. Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443 (1954).
 
Accomplice may be punished despite silence of statute creating an offense. — Where the statute creating an offense fails to provide for the guilt of an accomplice, the omission is not generally considered to indicate an intent to exclude such parties from criminal responsibility. Adkins v. Commonwealth, 175 Va. 590, 9 S.E.2d 349 (1940).
 
A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance. Brown v. Commonwealth, 130 Va. 733, 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443 (1954); Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964). See Grant v. Commonwealth, 216 Va. 166, 217 S.E.2d 806 (1975).
 
A principal in the second degree, or an aider or abettor as he is sometimes termed, is one who is present, actually or constructively, assisting the perpetrator in the commission of the crime. In order to make a person a principal in the second degree actual participation in the commission of the crime is not necessary. The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenance, or otherwise aiding while another did the act, he is an aider and abettor or principal in the second degree. Jones v. Commonwealth, 208 Va. 370, 157 S.E.2d 907 (1967).
 
 A principal in the second degree is one who is not only present at a crime's commission, but one who also commits some overt act, such as inciting, encouraging, advising, or assisting in the commission of the crime or shares the perpetrator's criminal intent. Moehring v. Commonwealth, 223 Va. 564, 290 S.E.2d 891 (1982).

It is well settled law that mere presence is not sufficient to render one guilty of aiding and abetting the commission of crime. There must be something done or said by him showing his consent to the felonious purpose and contributing to its execution. Reynolds v. Commonwealth, 74 Va. (33 Gratt.) 834 (1880); Kemp v. Commonwealth, 80 Va. 443 (1885); Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875) See; Horton v. Commonwealth, 99 Va. 848, 38 S.E. 184 (1901); Brown v. Commonwealth, 130 Va. 733, 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523, 79 S.E.2d 443 (1954).

* * * * *

So, I think the State (or as Virginia terms it, the Commonwealth) could have asked the grand jury for an indictment (the document well in advance of trial which informs the defendant what crimes he is accused of) on rape as a principal in the first degree and as a principal in the second degree, which would have gotten around both the impotence and "can't ID who penetrated her" issues.

Does this mean the legal system failed?  Yes and no.  I can see the argument that the prosecutor should have charged Irvin with as many things as possible.  Not having access to all the information and not knowing all the various reasons for the prosecutors' choices, I can't tell you why they didn't.  I can only look and see that given what we know about the evidence from the newspaper articles and the explanations of some of the jurors, the jury did the right thing in answering the question before it.  Would I, on this information, have charged and pled the case differently?  It's always easier being a Monday morning quarterback.

And I'm not even getting into the question of whether he was possibly guilty of kidnapping or attempted assault.  It's time for me to get dinner on the table and go to the academy.

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