Sunday, October 20, 2019

Case o' The Week: Timing Is(n't) Everything - Thornhill and the Admission of Sex Priors

Hon. Judge N.R. Smith

  “After” means after.
 (Unless it happens before).
United States v. Thornhill, 2019 WL 5152584 (9th Cir. Oct. 15, 2019), decision available here.

Players: Decision by Judge Tallman, joined by Judge Ikuta. 
 Well-reasoned concurrence by Judge N.R. Smith.  

Facts: A call lead the FBI to Thornhill. They found child porn on his phone, and a handwritten list of porn search terms. Id. at *1. He was charged with receipt of child porn and went to trial. Id. 
  Before trial, the government noticed its intent to introduce evidence of Thornhill’s prior state conviction for sexual abuse of a minor (his eleven-year old daughter.). Id. At trial, Thornhill stipulated that the images were actual minors and were produced outside of the state of Alaska, that the phone was his, and that the search-term list was in his handwriting. Id. at *2. Before any witness testified, the district court deemed the prior admissible. Id. at *8-*9 (N.R. Smith, J., concurring). 
  The government called one witness, an agent. The government introduced Thornhill’s prior, and the agent explained the prior had involved Thornhill’s daughter. Id. at *2. 
  Thornhill was convicted after two days of deliberation, and sentenced to 262 months (on a receipt case!) Id. at *2.  

Issue(s): “The question before us is whether the district court abused its discretion when it admitted evidence of Thornhill’s prior Alaska state conviction for sexual abuse of a minor in the second degree.” Id. at *1.

Held: “We conclude that it did not, and we affirm.” Id.

Of Note: This appeal is about the interplay of FRE 414 (permitting evidence of similar crimes in child molestation cases), FRE 403 (the “probative v. prejudicial” balancing test) and United States v. LeMay, 260 F.3d1018 (9th Cir. 2001) (the Ninth’s explanation of how these rules have to interact).
  The 2001 LeMay opinion set out five factors used to determine admissibility. The fifth factor is “the necessity of the evidence beyond the testimonies already offered at trial.” Id. at *3 (emphasis added). But wait -- in Thornhill, the D.J. didn’t wait to hear the testimony offered at trial. Instead, the court ruled that the prior was admissible before any witnesses testified. So how does the majority reconcile the non-discretionary language of LeMay, with the premature admission in Thornhill
  It doesn’t, opines Judge N.R. Smith. 
  In a compelling concurrence, Judge N.R. Smith expresses his “concern” with the majority’s “casual disregard” of the “non-discretionary language” of LeMay. Id. at *7 (N.R. Smith, J., concurring). The concurrence correctly explains that child molestation priors are the easiest for the government to get in, yet they have a “profound impact” on juries. Id. at *8. Because of the jury antipathy these priors evoke, it is particularly important that a district judge balance the admission of a child molestation prior against the testimony the jury has already heard. Id. at *8. In Judge Smith’s view, the Thornhill panel changed Ninth law (LeMay) with no intervening Supreme Court decision: a Miller v. Gammie faux pas. Id. at *8.

How to Use: Judge N.R. Smith concurred in the affirmance of the conviction, despite the majority’s approach, because he viewed the trial error as harmless. Id. at *9 & n.3 (N.R. Smith, J., concurring). A different fact pattern may have cost the government its conviction, after the premature admission of a sex prior. Id.
  Even Judge Tallman, writing for the majority, concedes that “a more complex case might warrant reserving a final ruling until after testimony has been elicited.” Id. at *6. In the majority opinion Judge Tallman emphasizes the simplicity of the Thornhill trial in an effort to avoid LeMay’s “after testimony” rule. 
  Remember that the LeMay fifth factor still exists, and target Thornhill as ripe for distinction: few trials will ever be as simple as this one-witness, many-stip affair.
For Further Reading: Lousy rules of sex-crime evidence rely on assumptions about recidivism. Turns out, however, that sex offenders are at a lower risk of general recidivism. “Among violent offenders, the annual recidivism rates of prisoners sentenced for homicide or sexual assault were lower than those sentenced for assault or robbery across the 5-year period.” 
  For this intriguing DOJ study on recidivism, see report here

Image of Judge N.R. Smith from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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