The Explainer: Doctor behaving badly

Dear Explainer,
Like anyone who rides a bike, I was happy to see the conviction of the doctor who took it upon himself to teach a “lesson” to the two guys riding their bikes down the canyon near Los Angeles.

What has me confused is the fact that he was also charged in the same trial with an earlier incident involving another rider. I always thought that prosecutors couldn’t bring up someone’s previous behavior, since it wouldn’t let a jury look at the charge in isolation.

How could they even bring up the earlier encounter, let alone charging him with the crime at the same time as the main charge.

Robert Thomas
Coffeyville, Kansas

Dear Robert,
You have raised a couple of questions that have bothered courts – and therefore lawyers – for almost as long as we have had a justice system. Is it fair, for example, to point out that a defendant is a thieving bastard because he has been convicted of shoplifting six times before facing trial on a burglary charge? If I am charged with crimes related to two incidents, wouldn’t conviction on one almost guarantee that I’ll be convicted on the other?

It’s an issue known as “prior bad acts” and generally it’s not fair to bring those up in a trial. But, as is the case whenever you bring up legal questions, it’s not as clear as it might seem at first glance.

Let me start by reminding you that this is purely a thumbnail sketch of the issue. While the applicable rules are actually quite short, the whole question of prior bad acts has been at issue in countless trials, generated 100s of well-crafted law review articles and even a few very thoughtful books. To take on all of the complex issues that pop up in these matters isn’t something you can do in a single column.

404(b) nightmares

Most states have codified their own state-based rules of evidence modeled after those used in federal courts. Under the “Federal Rules of Evidence,” there is a well-known Rule that causes no end of headaches for the people who care about these things, namely 404, under the heading of “Character Evidence Not Admissible To Prove Conduct.” In California, the issue comes up under the somewhat differently worded sections 1100-1109 of the state Evidence Code.

Under the federal rules and the rules of most states, you can’t, for example, regale a jury with tales of how a defendant in a perjury case is naturally a liar, because he’s been cheating on his wife for the last 20 years or that most people in the local community know the guy has a reputation for not telling the truth. Nope. They won’t allow that.

But your question deals with past criminal behavior. There is, of course, a rule for that, specifically, Rule 404(b) outlines just when the defendant’s past criminal behavior can be introduced to bolster a current prosecution.

Rule 404(b) begins with a statement that “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”

In other words, even if someone has been convicted of shoplifting 20 times in the past, you cannot introduce evidence of those convictions to demonstrate that the guy has a “propensity” to shoplift.

Now, wait a minute. How is that fair if he’s facing yet another shoplifting charge? Well, the rule provides an option to bring that up by noting that such a criminal record “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

A prosecutor can argue that the earlier cases show that the defendant had the motive and intent to shoplift this time, too. Better yet, if the defendant has claimed he “accidentally” wore those pants out of the changing room, the prosecutor can then do the equivalent of saying “surely, you jest, sir… what about these other 20 times you did the same thing?” and introduce evidence of those convictions.

Let’s say, for example, that the shoplifting defendant was caught using a specially constructed coat, with deep hidden pockets large enough to carry a DVD player. If a similar technique was used in those prior convictions, the prosecutor might argue that this is indictive of “preparation, plan and knowledge” and she’d be likely to get the record of those convictions introduced into evidence.

In the case of Dr. Thompson, the earlier incident was not one that had, at the time the case was filed, resulted in a conviction. The rules, too, govern the admissibility of “uncharged” prior bad acts. The trial court generally has to weigh several factors in admitting such evidence.

It’s not an easy issue, either. In my own state of Wyoming, the Supreme Court has a two-part test – with each part involving several steps – to determine whether prior acts meet the motive-intent-absence-of-mistake standard and then weigh whether the admission of such evidence would actually serve to inform the jury or simply prejudice them against the defendant. That’s known as weighing certain evidence’s “probative value” against its “prejudicial effect.”

In the Thompson case, even if the March, 2008, encounter with Patrick Watson had remained as an uncharged criminal act, the prosecutor could have argued – probably with success – that the incident showed motive and intent in the latter encounter on July 4.

It could certainly have been used as an argument against Dr. Thompson’s “I just wanted to take a picture” claim, which amounts to a “mistake” defense.

Had Thompson, succeeded in arguing that he was merely stopping to take a picture, that would have gone to eliminating the requisite intent element of the assault charge. It wouldn’t be fair not to allow a prosecutor to bring up an earlier incident to refute that claim. By allowing the prosecution to bring up a prior uncharged incident – like the Watson encounter – it gives weight to the argument that his was far from a mistake and that he did, indeed, intend to use his car as a weapon, rather than as a tripod for his camera.

Combining cases

But the Watson encounter also resulted in criminal charges. Not only was it charged, but the trial court opted to have those charges combined and handled in the same trial. At the federal level, that decision is governed by Rule 8 of the “Federal Rules of Criminal Procedure,” which allows “joinder of offenses” when “the offenses charged ─ whether felonies or misdemeanors or both ─ are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”

Again, most states – including California – have their own rules of criminal procedure, but for the most part they tend to reflect the general approaches used in the federal rules.

In deciding whether to join cases, the court also had to weigh several questions whether allowing the inclusion of that other charge would unfairly prejudice the jury when they consider charges stemming from the July 4 assault. Obviously, the court decided that it was appropriate to lump the two cases together.

I admit to not having read the relevant documents and don’t know if the joinder question was at issue. If it was, you might see an appeal based on what a defendant would call the court’s “abuse of discretion,” namely that the court over-stepped its authority in deciding to allow the two cases to be combined.

Again, I caution you to view this discussion as the briefest of thumbnail sketches. Questions about uncharged bad acts, prior convictions and joinder give law professors reason to ramble on for days, have lawyers, judges and appeals courts scratching their heads for months and keep billable hours high enough to keep some attorneys fat and happy for years. They’re real lawyers. Me? I’m just a guy at a bike magazine. So take what I say with a grain of salt.

Anyway for now, the good doctor is behind bars awaiting sentencing for his attempt to “teach a lesson” to two of our fellow cyclists as they were riding down the road quite near the posted speed limit. We’re sure there was a lesson taught there, but probably not the one Dr. Thompson had hoped to offer.

Lessons learned

Okay, speaking of lessons, it’s soap box time. If there was an over-riding lesson from the ugly Mandeville Canyon Road incident, it’s that everyone needs to comply with the freakin’ law. If you’re a driver and have anger management issues like, say Dr. Thompson, chill for a minute and think about the long-term consequences of your actions.

This guy’s anger got the better of him. He’s now facing years behind bars, huge financial costs, loss of his professional license and a likely civil suit, where he will be asked to pay actual and probably punitive damages to the people he assaulted. What’s probably the worst is that, whether he admits it or not, Thompson probably knows he deserves every bit of that and more. Compare that with being a few minutes late to your Fourth of July golf game, eh?

But the lessons of Mandeville Canyon aren’t just for drivers. It’s for anyone who thinks they are somehow exempt from traffic and other laws. If you’re a cyclist, remember that you do have a right to the same roads that automobiles use. With that right comes the responsibility to comply with the same traffic rules that govern automobiles. Don’t blow through stop signs, don’t ride on the wrong side of the road and don’t be that guy that every angry driver points to as some sort of justification for their aggression. When you ride, you’re really representing all of us.

Obviously, compliance with the law didn’t help Ron Peterson and Christian Stoehr. They were riding in a reasonable fashion and it was Thompson who decided to create and enforce his own interpretation of the law.

Just be cool out there and, above all, be safe. Even if we’re in the right, we usually do not emerge the winner when it comes to direct conflicts with a 3500-pound automobile. As one reader put it, it’s “right of way versus right of weight.” In that latter contest, we generally end up the loser.

Another reader, Jerry Leitch, sent me this poem, the author of which he says is unknown. No matter who wrote it, it sums up that last dilemma rather nicely:

Here lies the body of George O’Day.
He died maintaining his right of way.
He was right, dead right as he rode along,
But he is just as dead as if he were wrong.

Email Charles Pelkey