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Published: Wednesday, September 5, 2012, 12:01 a.m.

Ruling likely to free child molester from life term

High court overturned law that allowed testimony from a past victim

EVERETT -- The first defendant prosecuted in Snohomish County using a 2008 law likely will be released from prison now that the state Supreme Court has decided that the statute is unconstitutional.
Convicted child molester Michael Tyrone Gresham's life sentence was overturned in January, nearly a year after lawyers argued over whether state legislators had the authority to make laws about what evidence a jury can hear in sex cases.
A jury in 2008 found Gresham guilty of various sex crimes involving an 8-year-old girl following a trial that included testimony from another girl he'd previously been convicted of abusing.
Gresham, 40, is scheduled to be resentenced next week on reduced criminal charges. Prosecutors expect that he'll soon be released from prison after he's given credit for the time he's already served.
"This is a heartbreaking example of how the rules are changed after the game is over," Snohomish County Prosecuting Attorney Mark Roe said.
The state Supreme Court decided that the rules legislators wanted were flawed and they had wandered into the court's turf when they passed the law.
In 2008, legislators supported a statute that made it easier for prosecutors to introduce evidence about past sex abuse allegations, regardless of whether the defendant was charged or convicted. An existing court rule generally bars jurors from hearing about a defendant's previous criminal convictions.
Legislators said the intent was to ensure that jurors received necessary evidence to reach a fair verdict.
Proponents said the new legislation would bring state law in line with federal rules. The law was passed with overwhelming support, sending a clear message that lawmakers in Olympia wanted to be tougher on sex crimes.
But a majority of the state Supreme Court called the law unconstitutional, drawing a line in the sand about who has the authority to decide how things are done in court.
The argument came down to who has the right to decide the rules of evidence in Washington, said Snohomish County assistant chief criminal deputy prosecutor Seth Fine.
Legislators, in writing the statute, concluded that they have the authority to make evidence rules that are substantive in nature, while the court enacts rules of evidence that are procedural. They wrote that the new statute addressed a substantive issue.
The higher court disagreed, concluding that the admission of evidence is a procedural matter, and therefore up to the judicial branch.
The justices further explained that state lawmakers don't have the power to enact legislation that conflicts and can't be harmonized with existing court rules. The state Supreme Court pointed to a standing rule that generally prohibits jurors from hearing evidence of past convictions or bad acts that specifically go to the defendant's propensity to commit crimes.
The theory behind the rule is that if jurors hear about these other allegations or convictions, they would be inclined to believe that defendant committed the charged crime, based on his past, not on the current charge. Although the past convictions may have some merit, they have been restricted out of concern that they are too prejudicial to the defendant.
It is a long-standing rule that has evolved over time, said Bill Jaquette, director of the Snohomish County Public Defender's Association.
"The danger is that jurors may presume that if the defendant did it once before, he'll do it again, instead of the jurors focusing on the actual evidence," Jaquette said. "The legislators wanted to create an exception for sex cases to facilitate prosecutors' efforts to prosecute people. I think that's what we're objecting to in that rule. I think it's especially important in sex cases to avoid assumptions."
The court rule does allow for prosecutors to tell jurors about a person's past convictions for limited purposes, such as proof of a motive or to show the current allegations fit into a common scheme or plan. Jurors are instructed to only consider the evidence for that limited purpose.
In its decision, the state Supreme Court said the new evidence law violated a separation of powers doctrine. They found that adopting rules for court procedures, such as rules of evidence, is "an inherent power of the judicial branch." In their decision, the justices cited a 1974 state Supreme Court ruling, along with language from the state constitution that says judicial power is in the hands of the state Supreme Court.
The justices conceded that the Legislature can adopt rules governing court procedures as long as they don't conflict with rules already established by the court.
The decision didn't sit well with prosecutors, including Roe, who has tried numerous sex crimes over the years.
"The Legislature is supposed to make the laws and the Supreme Court is supposed to interpret them. All too frequently, many of us in law enforcement feel like the Supreme Court is legislating," he said.
The two dissenting votes, from Chief Justice Barbara Madsen and Justice Jim Johnson, argued that there was no conflict between the new statute and existing rules of evidence. They also argued that the court should be reluctant to impede the Legislature's efforts to enact public policy.
"Here, it is apparent that the Legislature recognizes that prior sex offenses may be relevant in a prosecution for a sex offense and believes that this is information that, within the trial court's discretion, is important for the jury to know," Madsen wrote.
In 1994, Congress created two new federal evidence rules similar to what was adopted by Washington lawmakers in 2008. Those rules govern what evidence can be heard in federal sex cases.
In sex crimes, there often is little or no physical evidence, and jurors are asked to decide who is telling the truth -- the defendant or the accuser.
Prosecutors saw the new law as providing jurors with more information on which to base their decision.
Defense attorneys vehemently disagreed, saying people would be presumed guilty based on their past, and not the facts of the current case.
Armed with the state Supreme Court decision, eight defendants across the state won new trials, according to the Washington Association of Prosecuting Attorneys. Ten others had their convictions upheld after the state Court of Appeals found that evidence had been properly admitted under the old court rule or, in some cases, was ruled not to have affected the verdict.
In Gresham's 2008 trial, jurors were allowed to hear about his sexual abuse of another girl a decade earlier. He'd been convicted in King County of second-degree assault with sexual motivation in 1998 and sentenced to three months in jail.
In Snohomish County, Gresham was accused of molesting an 8-year-old girl between 1998 and 2002.
Prosecutors attempted to admit his previous conviction under the existing court rule. The trial judge concluded the evidence was only admissible under the new law.
Both victims testified during the trial. A jury convicted Gresham of three counts of first-degree child molestation and one count of attempted first-degree child molestation. The conviction was a second strike for Gresham and earned him a mandatory life sentence under the state's persistent offender law.
Prosecutors say the state Supreme Court decision weakened their case against Gresham. They weighed whether to retry him, and waged another unsuccessful battle to get his previous conviction admitted under the old rules of evidence.
In the end, rather than risk an acquittal or force the victim to testify again, they agreed to reduce the charges against Gresham, Snohomish County deputy prosecutor Adam Cornell said.
"We weighed going to trial with just the one victim and without the other evidence or to resolve the case to give the victim and her family some finality. They supported this resolution, rather than having her relive the abuse, again," Cornell said.
Gresham pleaded guilty to two counts of second-degree child molestation. The conviction is not a strike and Gresham faces four to six years in prison.
He's already served about four years while appealing his life sentence.
Diana Hefley: 425-339-3463; hefley@heraldnet.com.
Story tags » EverettJudiciarySex Crimes

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