Wednesday, December 12, 2018

Error in admitting prior bad act leads to new trial for jail officer sentenced to 9 years for assault on inmate

Kevin Eugene Asher, a former Kentucky jail officer accused of beating inmates, is getting a new trial thanks to today's Sixth Circuit decision reversing his conviction for a violation of Federal Rule of Evidence 403.
Asher was a 32-year-old deputy officer at the Kentucky River Regional Jail when a jury convicted him of deprivation of civil rights and obstruction of justice for his role in (and later cover up of) an unprovoked, vicious assault of a 55-year-old inmate awaiting trial on a misdemeanor charge. The district court imposed a 9-year sentence.
Today's decision, written by Judge Bush, concluded that the trial court erred by allowing in testimony that Asher had beaten a prisoner and covered it up 2½ years earlier.
Asher conceded that prosecutors had sufficient evidence that the prior assault occurred, and that it was admissible under Rule 404(b) to prove that he acted purposefully.
But Asher argued that the evidence wasn't admissible under Rule 403, which provides a balancing test that allows exclusion of relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice."
The Sixth Circuit decided that -- despite deference due to the trial court's evidentiary decisions -- the risk of unfair prejudice from introduction of the prior assault so outweighed its probative value that it constituted reversible error. 
The court first addressed probative value, explaining that, if the jury believed Asher committed the vicious assault at issue, then specific intent would have been obvious. "It is specious to think," the court reasoned, "that the jury might have disbelieved Asher's denials, yet acquitted him for lack of specific intent." And as to prejudice, the court found that, because the two assaults were "virtually identical," a curative jury instruction wasn't enough to mitigate the negative inference about Asher's character that would arise from evidence of the prior assault.
The court thus vacated both the conviction and the 9-year sentence, and remanded for a new trial.

Monday, December 10, 2018

ICE may detain and deport a defendant regardless of a district court's detention determination




The Bail Reform Act (BRA) and the Immigration and Naturalization Act (INA) seem to be in conflict.  The INA requires that a person subject to removal is not entitled to bail, and must be deported.  But what to do if that same person is charged with a federal offense, and the district court finds that the person is entitled to bail under the BRA?

The Sixth Circuit has held that in such situations, the district court cannot interfere with the requirements of the INA.  In United States v. Veloz-Alonso, the district court found that the defendant, an illegal alien, was subject to bail under the BRA.  The United States informed the court that, if the defendant was released, ICE would likely detain and deport him prior to resolution of the criminal case.  The district court, wanting the defendant to be released on bail, then entered an order enjoining ICE from such action. 

The United States appealed, and the Sixth Circuit reversed.  Recognizing the conflicts between the BRA and the INA, the  Court found that "nothing in the BRA prevents other government agencies or state or local law enforcement from acting pursuant to their lawful duties."  Thus, while a district court is able to release such a defendant under the BRA, the court may not halt application of the requirements of the INA.