"There Goes my Child Support" (10/7/98)
A basic premise of any criminal trial is that the Defendant is only on trial for the crime alleged in the indictment. In that regard, the fact that a Defendant has been a "bad guy" in the past, or committed other crimes, is generally inadmissible. The logic is sound: A person should only be convicted of a crime if the evidence surrounding that crime supports that he did, in fact, commit it.

For example, I should not be allowed to prove a person burglarized a home by utilizing evidence that he uses crack or beats his wife.

Moreover, I'm not even allowed to prove the Defendant committed unrelated burglaries as a method of establishing that he committed a more recent burglary. Rule of Evidence 404 states, and I greatly paraphrase, "Evidence that the Defendant has committed crimes or bad things in the past is not admissible to prove the committed yet another crime". The reason for the rule is sensible: the risk is simply too great that a jury will throw away the presumption of evidence and convict a "bad man" for being a "bad man" regardless of whether the evidence establishes his guilt for the crime for which he is on trial. Scholars put is another way: "[The rule] exist, in large part, to counter the possibility that evidence may be admitted to show a defendant's corrupt nature from which the jury may then render a verdict not on the facts of the case before them, but, rather, on their perception of the defendant's character".

With this in mind, I was somewhat stunned to hear the news reports from Abilene where the State is accusing Schwana Patterson of failing to protect her children from the hands of now convicted capital murderer  Bobby Wayne Woods. Woods was found guilty in May of abducting her children, Cody and Sarah, and severely beating Cody and raping and murdering Sarah. The incident took place in Johnson County but was transferred to Abilene because of the publicity.

The State will try to prove that Ms. Patterson committed the crime of  "Injury to a Child by Omission" in that she failed to protect her children from Woods even though she allegedly heard them scream while they were being removed from her home by Woods.

However, I was surprised to learn that during the first day of trial a law enforcement official testified that "When I spoke to her, she said, 'My kids are gone, and there goes my child support,' " According to the Dallas Morning News, "The statement . . . drew gasps from some members of the audience."

I bet it did. But what does the "child support" statement have to do with the nature of the charges against her?

Does it tend to prove that she intentionally failed to protect her children? No. Does it in any way tend to prove any element of the indictment? No. In fact, the statement would give Patterson a motive to protect her children, albeit a distasteful one.

The only benefit that statement has is to portray Ms. Patterson as a bad person. It should not have been admitted into evidence, and if the prosecution should be worried about the case being reversed on appeal in the event they are fortunate enough to obtain a conviction. 

Please understand: if Patterson intentionally failed to protect her children, she needs to be convicted. But she does not need to be branded a felon for being, in general, a "bad person" or for uttering words that, while horrifying, are in no way an admission of guilt.

Barry Green is the District Attorney for the 271st Judicial District.

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