Monday, April 07, 2014

Government's Elicitation of Arguably Improper Character Evidence Is Not Plain Error Warranting Reversal

U.S. v. Perryman, 2014 WL 945151 (3/12/14) (Okl.) (unpub'd) - The 10th was "troubled" and "perplexed" by the government's eliciting testimony from several witnesses that Mr. Perryman was a cruel and unethical boss and a wife-abuser. And it was "disappointed that an officer of the court would choose to emphasize the testimony in closing." While the rationale the government gave that it was drawing out potential biases preemptively might explain testimony that the witnesses hated Mr. Perryman, it wasn't likely the defense would have brought up the rest of the testimony. Nor did it explain the prosecutor's closing urging the jury to consider what a bad person Mr. Perrryman was. You might have guessed by now, though, that a reversal does not follow. Assuming all this might have been plain error, Mr. Perryman did not show under the plain-error-reversal standard a reasonable probability the verdict would have been different given the strength of the government's arson case: Mr. Perryman was facing financial problems;insurance would have satisfied Mr. Perryman's debts; he removed keepsakes from the club shortly before the fire and arranged for the tenant in the building to stay elsewhere on the night of the fire; and he was the last known person in the club before the fire.