Baltimore prosecutors might have lost their best chance to land prison time for a man who has repeatedly been acquitted of charges of sexual assault when a judge on Wednesday denied their motions to have two cases tried together to demonstrate a pattern.
Nelson Bernard Clifford, a convicted sex offender, has gone to trial four times since 2010 on sexual-assault charges in which women said he broke into their homes and bound and attacked them. Each time, he took the stand and claimed the encounters were consensual — and was acquitted of the most serious charges by juries.
Determined to put Clifford, 37, behind bars, prosecutors in late 2013 revived cases from 2007 in which charges were dropped because the evidence was weak.
Assistant State's Attorney Jennifer McAllistertold Baltimore Circuit Chief Judge Alfred Nance that prosecutors refiled the charges — an unusual move — with the intention of trying the cases together, which she said would show jurors that Clifford has a pattern of committing sexual assaults.
But Nance denied the motions, meaning separate juries will hear each case independently, without knowing the wider scope of allegations against Clifford.
Nance told prosecutors he was "empathetic and somewhat sympathetic to the state's attempt to use every piece of evidence available."
Clifford's attorney argued against allowing allegations from other cases to be heard, saying it would prejudice jurors from considering the individual evidence.
After Nance's ruling, Clifford covered his face with his hands for a few moments. When he removed his hands, he was smiling.
Clifford has gained notoriety with each acquittal. New State's Attorney Marilyn Mosby made the Baltimore man part of her campaign last year, criticizing prosecutors who she said were "simply incapable of getting a conviction," and pledging to fight for legislation that would allow prosecutors to introduce evidence from previous cases against serial rapists and child molesters.
McAllister said the 2007 attacks were connected. She said a cellphone was taken from one woman Clifford allegedly attacked and found in the home of another woman he allegedly attacked four days later.
McAllister said the recovered phone's contact list included a name and number associated with Clifford's sister.
McAllister said each case involved a man breaking in through an unlocked window, binding the alleged victim with items inside the home, and taking money and a cellphone. She said that was enough to show a "signature" style or "modus operandi" of the attacker.
Public defender Gregory Fischer, who has represented Clifford in all of his recent cases, said the recovered phone was "not relevant to establish [Clifford] as the perpetrator of this offense."
He said it was not known who entered the nickname of his sister into the contact list, and that Clifford was no more implicated than anyone else related to the 46 other people on the contact list.
Fischer said there was "nothing particularly unique" about an attacker entering through a window and taking things, and that there were major differences between the two crimes. In one, the man entered the apartment already naked and wearing a bandanna over his face; in the other, he was clothed with a hoodie pulled tight over his face.
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If jurors heard the allegations together, Fischer said, there was a "high likelihood" and "virtual certainty" that they would infer guilt on Clifford's part.
Nance said that there were "extreme similarities" in the cases, but he found the differences to be "profound" and prejudicial to the jury.
Before that ruling, Fischer sought to have the case dismissed entirely. He argued that prosecutors had re-filed charges that had been dropped years ago in order to gain a "tactical advantage," by presenting a case that Clifford would have difficulty rebutting given the amount of time that had passed.
Nance said the state's conduct "raises an eyebrow," but he could not conclude it was deliberate, and denied the motion.