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| It's all connected in some way |
By Elizabeth Kruska
Here are the basic facts. Mr. Discola was charged with multiple counts of lewd and lascivious conduct. The State alleged that during the Burlington Marathon in 2015, Mr. Discola, in apparently a few different locations along the marathon route, touched three female spectators on their respective rear ends. A runner in the relay saw one of the touching episodes and also took a photo.
A police officer saw this fellow sort of hanging around a group of girls and became suspicious based on this man’s behavior. He asked Mr. Discola what he was doing and Mr. Discola said he was meeting a friend for burritos. I suppose this makes sense where “meeting a friend for burritos” is code for “touching women inappropriately during the Burlington Marathon.” The police officer, apparently not entirely convinced, took a photo of Mr. Discola. You know, just in case it turned out something was afoot.
I’ll interject here and say that I really enjoy running in road races. I am not fast, but I enjoy training for and running in races. Lots of other people feel the same way I do. These are events that bring that bring out big crowds, and big crowds often need police to help keep things under control, which is how the officer I mentioned above came in to contact with Mr. Discola.
Ultimately he was charged, and the three women each made identifications of Mr. Discola during a pre-trial hearing, and Mr. Discola moved to suppress those identifications. He argued the identifications were unduly suggestive, and thus violated his constitutional rights. Two of the witnesses had seen his photo in the newspaper just before the hearing. Also, they had not participated in a photo lineup with other photos for comparison—the only photo they saw was of Mr. Discola. And then, when they saw him again for the first time in several months following the incidents, he was in court, shackled, and sitting at the defendant’s table.
The court denied the motion, although it found that there were elements of the identification process that were suggestive.
At trial, Mr. Discola moved for a judgment of acquittal at the end of the state’s case. He argued that what he did didn’t amount to lewd and lascivious conduct. He argued that although the state proved he touched the women’s bodies, they couldn’t prove he did so with the specific intent to satisfy sexual desires, as required by the statute. The judge said it was a fact issue for the jury to decide. (Spoiler alert: they decided it was done with the intent to satisfy sexual desires and found him guilty.)
During the closing argument, the prosecutor admonished the jury to “send a message” to others in the community that this kind of behavior would not be tolerated. The defendant didn’t object to this. (Spoiler alert: if you don’t object, you waive it.)
He appeals, which should be obvious, since there’s a SCOV opinion, and SCOV affirms.
First of all, there’s a little bit of a verbal scuffle over appealing the motion for judgment of acquittal. A defendant is supposed to make this motion at the close of the State’s case, and then renew it at the close of all evidence. Mr. Discola only made the motion once here, because he did not present any evidence. The State tries to argue that since he didn’t renew the motion again he waived it. SCOV thinks this is ridiculous, since when the State rested, that basically closed all the evidence.
However, turning to the merit of the argument, SCOV affirms the trial court. So, here’s the thing about the lewd and lascivious conduct statute: it’s terrible. It’s broad, it’s got unhelpful definitions, and it relies on “the common sense of the community” with respect to decency and lewdness. I suppose something that was considered “lewd” 100 years ago might not be “lewd” now (I’m looking at you, Roaring 20s flappers, with your exposed . . . . calves). But basically, in our current day and age, pretty much nobody thinks it’s okay to go to a marathon and touch spectators in inappropriate ways. The surrounding information—that Mr. Discola was sort of lurking around and being generally suspicious-looking enough that a police officer asked him what he was up to and that a runner paused long enough to take a photo—all tends to point to the fact that this wasn’t an accident. Do people inadvertently touch each other in crowds? Sure. Is that what happened here? Doesn’t seem like it. SCOV affirms this part and moves along, like a Burlington marathoner on the bike path.
SCOV also looks at the requirement that a lewd and lascivious act has to be done with the “intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of the doer. Usually, though, this isn’t self-evident, and it’s necessary to look at the surrounding circumstantial evidence. SCOV says this point was proven by the fact Mr. Discola did this multiple times to multiple people, and apparently smiled and smirked at the minor victims when he did it. Maybe the argument would’ve been different if he’d have grabbed adult men by the shoulders. But since we’re talking about buttocks, which are, as SCOV points out, often sexualized by our society, the jury could fairly infer that Mr. Discola was doing what he was doing for some sort of gratification.
Next SCOV examines the eyewitness identification of Mr. Discola. There are issues regarding eyewitness identification to make sure it’s reliable and to make sure a defendant’s due process is preserved. First, the court considers whether the circumstances surrounding an identification were unnecessarily suggestive. Second, the court will determine that an identification is still admissible if there are indicia of reliability that outweigh the suggestive parts of the identification.
The court has to look at the whole picture to figure out whether the witness would have had a sufficient ability and opportunity to see the person at the time of the incident, and then compare it to other factors that might cause the witness to make a correct or incorrect identification.
In this case, two of the young women who Mr. Discola touched identified him in court during a hearing for the very first time. They had seen a newspaper photo of him, and then saw him in the courtroom at the defense table, and wearing shackles. SCOV, says that this was too suggestive for it to be the first time these particular witnesses made identifications. However, the witnesses both gave other details about him from the day in question—like the fact he was barefoot that day—that they couldn’t possibly have known from seeing him in court that day. Because of these factors, their identification, although done in a suggestive way, was permissible.
Interestingly, though, SCOV takes this opportunity to decide to do away with the “witness certainty” factor as being relevant to the reliability portion of their two-part test. In the time since this test emerged, there’s been a ton of research on eyewitness identification, and the part about “certainty” is, to paraphrase, squishy at best. Little Feat summed it up best about 40 (OK, more like 45) years ago when they sang
Hear me well,Bonus points to everyone who read that and then automatically sang, “I’ve got an uncle in Puerto Rico…”
Seeing ain’t always believing.
Just make sure it’s the truth that you’re seeking.
Eyes sometimes lie.
Eyes sometimes lie; they can be real deceiving.
Anyway, the point is that courts are finally catching up to what we’ve all known for a long time. Eyes can “play tricks” on people, and just because someone is “so certain” they saw someone or something doesn’t make it so. So, now that we’ve had a little bit of a dance break and I’ve summarized 40 years of scientific research and jurisprudence with some classic rock lyrics (one of my better talents, really), we can move on.
Lastly, SCOV takes a look at some remarks made by the prosecutor in closing argument. The prosecutor told jurors to “send a message” to others in the community by convicting the defendant. The defendant didn’t object at the time, but did raise on appeal that this was inappropriate and inflammatory.
SCOV is not pleased with this behavior. In fact, SCOV says, “We condemn as improper the State’s encouragement to the jury to ‘send a message.’” But this comment, and some others, weren’t sufficient, in SCOV’s view, to rise to the level of plain error requiring reversal. Attorneys are supposed to stick to the facts of the instant case in making arguments. Jurors aren’t supposed to consider larger policy issues in determining whether a person is guilty (or not) of a certain discrete set of facts.
So, SCOV affirms. Now, go have another dance party. You’ve earned it.
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