No. 11-1674 – State of West Virginia v. Christopher Wayne Bowling
                                                                             FILED
                                                                         October 8, 2013
                                                                         released at 3:00 p.m.

                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA

Justice Ketchum, dissenting:

              The majority opinion holds that the prosecutor erroneously introduced into

evidence five different inadmissible statements, three of which were constitutional errors.

Again and again, the majority opinion demonstrates that this mess of a trial was

dominated by inadmissible evidence. Yet the majority opinion somehow concludes that

the parade of inadmissible evidence was harmless, and that the defendant got a fair trial.

              It all reminds me of the trial in Alice in Wonderland, with the Queen

demanding that the accused be “Sentence[d] first – verdict afterwards.”                By the

majority’s measure, I guess the Sanhedrin gave Jesus Christ a fair trial.1

              Conveniently, the majority opinion does not discuss the cumulative effect

of the stream of inadmissible evidence as it eroded the fairness of the accused’s trial. We

have repeatedly held that:

                      Where the record of a criminal trial shows that the
              cumulative effect of numerous errors committed during the
              trial prevented the defendant from receiving a fair trial, his
              conviction should be set aside, even though any one of such
              errors standing alone would be harmless error.

Syllabus Point 5, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).



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        I suggest, though, that if this prosecutor had been around 2000 years ago, she
might have had difficulty finding prior bad acts to admit before the Sanhedrin under Rule
404(b).
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              In addition, the trial court held a pre-trial hearing to consider Rule 404(b)

bad character evidence in open court, with the press present. I believe in freedom of the

press and in open courts, but this type of evidence is supposed to be reviewed in camera.

Black’s Law Dictionary defines an in camera hearing as one “in the judge’s private

chambers.” When the prosecutor uses the press to spill details of an accused’s prior bad

acts into the public forum, it tends to prejudice the accused’s ability to get a fair trial on

the present accusation. And the majority opinion bypassed our “book rules” and a

century of case law to say that was okay.

              A fair trial is one in which the rules of evidence are honored, so that every

factual assertion can be fairly challenged.

              Under the majority opinion’s philosophy, we might as well start future

criminal trials with the prosecutor stating, in front of the jury, “bring the guilty S.O.B. in

here!”

              I dissent. This case is terrible.




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