A bill that would allow judges to admit evidence of other, similar sex offenses by a suspect accused of rape is poised to pass the Maryland Senate and receive a committee vote in the House of Delegates.
The Senate gave the legislation preliminary approval Wednesday and is expected to pass it by the end of the week. It would then go to the House Judiciary Committee, which is expected to take a long-awaited vote on the measure.
Committee Chairman Joseph F. Vallario Jr. told The Baltimore Sun that he intends to advance the House version of the bill before a critical Monday deadline.
The progress pleased Baltimore State’s Attorney Marilyn J. Mosby, one of the bill’s chief advocates.
Previous versions of the bill have failed in the House committee. This year, Mosby said, “the dynamics are different.”
“In the year of the #MeToo and #TimesUp movement, time’s up on serial rapists getting away with it,” Mosby said.
Republican Gov. Larry Hogan also supports the legislation.
It would give prosecutors a new tool for trying cases against serial sex offenders by letting them present to juries evidence of past incidents not directly related to defendants’ pending charges. Such evidence is currently not admissible.
Mosby said the measure would help level the playing field between victims and defendants while still protecting the rights of the accused.
“The constitutional safeguards that are in place in the legislation are unparalleled,” she said.
Ricardo A. Flores, government relations director for the Office of the Public Defender, said he’d rather not see the legislature act on the legislation. He said the proper place for discussing such changes is in the Rules Committee of the Court of Appeals. But he said the Senate bill had been “significantly improved” since he testified against it early in the session.
Mosby has said her support for the legislation was driven in part by the case of Nelson Bernard Clifford, the Baltimore man who was acquitted in four separate rape cases after claiming his alleged victims in each consented to have sex with him. The juries in each of those trials never heard about the other alleged incidents.
In 2015, Mosby’s office won a conviction of Clifford of third-degree sexual assault charges and theft in a fifth case. Prosecutors said he broke into a woman’s home in the Barclay neighborhood and assaulted her. With a previous sexual assault conviction on his record, he received a 30-year prison sentence.
Maryland law currently allows criminal cases to proceed solely on evidence related to the specific charges. It does not allow evidence of past offenses to be admitted.
The legislation would create an exception to that rule in cases in which the victim is a child or when the defendant’s defense is that the act was consensual.
Backers say the current law reduces the number of cases in which suspects have shown a pattern of behavior to “he said, she said” disputes around single incidents.
State Sen. James Brochin, the bill’s Senate sponsor, said recent high-profile cases demonstrate the need for the legislation. The Baltimore County Democrat pointed to Dr. Larry Nassar, the team doctor of the U.S. women’s national gymnastics team who was accused of molesting more than 250 girls and women over more than 20 years. He was convicted of 10 charges of sexual assault this year and sent to prison for what is expected to be the rest of his life.
“This is the Nassar case. This is the Bill Cosby case,” Brochin said. “This is giving victims a chance to have their say in court so the jury and a judge learns the whole story.”
Brochin said the bill would give defense attorneys ample opportunity to ask judges to exclude evidence of other alleged assaults by giving them 90 days to raise objections. Prosecutors would have to present “clear and convincing evidence” that the other behavior is relevant, and that its value as evidence outweighs its prejudicial impact on judges or juries.
At least 37 states and the federal government allow the admission of evidence of a pattern of behavior in sexual assault cases, Brochin said.
State Sen. Bobby Zirkin, the chairman of the Judicial Proceedings Committee, said the Senate has sent the proposal to the House in various forms over the years only to see it bottled up in the Judiciary Committee.
The Baltimore County Democrat said he’s basing this year’s bill on the legal doctrine of chances, which allows prosecutors to admit evidence of previous actions if they can show that it is extremely unlikely that those behaviors were not part of a pattern.
“A number of states have this position,” Zirkin said.
Flores questioned the doctrine of chances.
“We continue to be concerned with our justice system replacing proof with probability,” he said. “Nonetheless, we look forward to working with the House Judiciary Committee to ensure the existing balance in our current evidentiary laws aren’t unnecessarily changed.”
Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault, said her group has been seeking the legislation for more than 20 years. She’s concerned that the House might find “the Senate strayed so far from the Maryland rules of evidence.”
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Jordan and Mosby both said they hope delegates write their own version and take it to a conference committee with the Senate.
That’s what Vallario said Wednesday that he intends to do. He said he expects to move a bill sponsored by Del. Vanessa E. Atterbeary, a Howard County Democrat, in time for Monday’s “crossover” deadline, when House bills are due in the Senate and vice versa.
With his support and strong bipartisan co-sponsorship, the legislation is virtually certain to pass the House.
Passage by both houses are no guarantee the bill will go to the governor’s desk. Complicated bills have frequently become hung up in conferences between House and Senate committees.
Zirkin said he understands why the House has been wary in the past.