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Monthly Archives: May 2012

Can duped lover sue for social media fraud?

When we first met Paula Bonhomme last year, she was getting a second chance to sue an Illinois woman for posing as a man in an online romantic relationship that took a definitely creepy turn. Last week, the Illinois Supreme Court had the final say as to whether Bonhomme had a viable legal claim.

Click here to read the full article, and visit the Lawyers USA home page  at lawyersusaonline.com.

Cow versus motorcycle

Annie the Black Angus cow perceived a motorcycle crossing her pasture as a threat, so she charged. Annie took care of the threat, totaling a Triumph Tiger ridden by Nelson Thomas.

Adding insult to injury, California courts have decided that Annie’s owners aren’t liable for the motorcyclist’s busted shoulder and property loss.

Click here to read the full article, and visit the Lawyers USA home page  at lawyersusaonline.com.

Should court have suppressed penile swab?

Does the potential loss or destruction of DNA evidence justify the warrantless collection of such evidence from a rape suspect’s private parts following his arrest?

A panel of California judges answered that question on Friday. If you were hoping for a straight yes or no answer, you’ll be disappointed.

Click here to read the full article at lawyersusaonline.com.

Photocopy of military POA not good enough

A military power of attorney is a critical document for managing affairs on the home front when a spouse is deployed overseas. A Kentucky military family had to learn the hard way that only having a photocopy of that document can stop a real estate transaction dead in its tracks.

Click here to read the full article at lawyersusaonline.com.

Group sex evidence barred under rape shield law

The en banc 6th Circuit yesterday engaged in a classic balancing of the rights of victim and accused in deciding that Michigan courts properly excluded from a rape trial evidence of the victim’s alleged proclivity to engage in group sex.

The decision in Gagne v. Booker was a particularly tough one because it is so easy to grasp the logic in the arguments on both sides.

Lewis Gagne stands convicted in Michigan of raping his former girlfriend, P.C. Gagne’s trip to prison began in July 2000. At the time, Gagne was unemployed and had just ended his six-month relationship with P.C. With his prospects at home in Michigan at such a low point, Gagne decided to join his friend Donald Swathwood and head for the green pastures of California.

But first a final fling.

On the evening of July 3, 2000, Gagne, Swathwood, and another friend, David Stout, were out partying when their car ran out of gas. P.C.’s house was nearby. Walking over, the three men found Gagne’s former girlfriend at home. P.C. had been drinking most of the day. She, too, was in a partying mood. P.C. agreed to get cash from an ATM to buy gas, beer and crack cocaine.

Returning to P.C.’s home, the foursome began to smoke and drink. Stout passed out, but P.C. began to have sex with Gagne and Swathwood joined in. The next morning, the three men took P.C.’s ATM card and $300 to buy crack cocaine, which they smoked themselves.

Meanwhile, P.C. called the police to report that she had been raped by Gagne and Swathwood. According to P.C., the sex with Gagne had started out as consensual, but she protested when Swathwood joined in. Rather that stopping, Swathwood and Gagne held P.C. down, forcibly raped and sodomized her, and tried to force her to perform oral sex on the inebriated Stout.

Gagne and his soon to be co-defendant, Swathwood, claimed that all of the sex had been consensual. In fact, the two men asserted that P.C. had encouraged and directed a “wild orgy.” According to Gagne, P.C. only made the accusations of rape because she was upset over the breakup of their relationship and the fact that, while she was asleep, the men had bought and smoked crack without her.

Both Gagne and Swathwood were charged with three counts of first-degree criminal sexual misconduct in violation of Michigan law. A jury convicted Swathwood on all three counts.

Gagne was convicted on two of the charges and his convictions were upheld by the Michigan courts. He sought habeas relief in federal court.

In federal court, Gagne’s main point of contention was that the Michigan courts had wrongly barred him from introducing evidence that P.C. and Gagne had on one occasion engaged in group sex with another individual, Ruben Bermudez. In addition, Gagne wasn’t permitted to bring in evidence that P.C. allegedly had once offered to engage in group sex with Gagne and his father.

Michigan’s rape shield law generally prohibits evidence of a victim’s sexual history, but makes an exception when the victim’s past sexual conduct is with the accused.

Gagne argued that his proffered evidence fell within the exception, while the state of Michigan contended that the exception didn’t apply because the group sex allegations were of limited relevance and highly inflammatory.

The federal courts initially were much more open to Gagne’s claim that the exclusion of the group sex evidence denied him a fair trial. U.S. District Judge Marianne O. Battani granted habeas relief and a three-judge panel of the 6th Circuit upheld that order.

But the court decided to rehear the case en banc. Yesterday, the en banc court decided 11-5 that Gagne’s habeas petition should have been denied. Chief Judge Alice M. Batchelder wrote the plurality opinion (there were five concurring opinions in the case) and she explained:

The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal, and anal) in various positions with both men concurrently, spankings, and repeated vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle, resulting in vaginal and rectal bleeding and bruising. To be sure, jurors might find this behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and, therefore, find it incredible or inherently unbelievable that P.C. would have consented to it. And it is not unreasonable to surmise that those jurors would be more likely to find consent if they were told that she had engaged in – and offered to engage in – group sex at least two other times in the past. But, again, that is not the question. The question is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting this argument. Considering the general antipathy for propensity evidence, the State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument, we cannot say that the decision in this case was “beyond any possibility for fairminded disagreement.”

Circuit Judge Raymond Kethledge’s filed one of two dissents in the case. Kethledge probably made the best argument for why the group sex evidence should have been allowed:

What Gagne faced was a theory of res ipsa loquitur as applied to a rape case: the brutal and facially coercive nature of the charged conduct spoke for itself at trial, to the effect that the conduct was not consensual. That undisputed fact severely disadvantaged Gagne in the credibility contest upon which his trial turned. His only chance of defending himself was to admit evidence that the complainant had consented to in one instance, and proposed in another, almost identical conduct with Gagne and another man – and moreover that the complainant had done so just weeks before the charged conduct here. Absent this evidence, Gagne’s “defense was far less persuasive than it might have been had he been given an opportunity” to admit this evidence and then cross-examine the complainant on the basis of it.

Don’t be surprised if the U.S. Supreme Court weighs in on this one.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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