Mr. Krause was charged with four counts of rape involving three separate alleged victims, who all knew each other and came forward to report him when they heard each other’s story. All four charges involving the three young women were joined for trial. Mr. Krause made multiple motions to sever, which were all denied. All the alleged victims claimed no consent was given; Mr. Krause claimed there was. The charges were related and the alleged victims’ decision on reporting Mr. Krause were intertwined and therefore ‘cross-admissible’.
The Court of Appeals concluded the trial court abused its discretion in denying severance. In a 7-2 decision, our Washington Supreme Court concluded that the trial judge acted within its discretion.
The trial judge utilized a four part test on whether joining all counts could provide Mr. Krause a fair trial: (1) strength of State’s case; (2) clarity of the defenses; (3) could the court properly instruct the jury on separate counts; and (4) cross admissibility of each alleged victim’s statements, State v. Russell, 125 Wn 2d 24 (1994). Here, each alleged victim claimed ‘No’ was clearly expressed regarding lack of consent. Mr. Krause’s defense was that each woman had given consent. Jury instructions would properly and clearly identify the alleged rape of each individual separately, and the reason each individual reported their alleged rape was due to knowing the others’ were involved with Mr. Krause, and therefore there was cross admissibility.
The legal standard employed on appeal was whether there was a “manifest abuse of discretion; no reasonable person would decide the issue the way the trial court did” State v. Krause pg. 6. The Court of Appeals found such abuse. The Supreme Court did not, ruling that Washington law generally disfavors separate trials. Krause, Id at 7. The majority provided a lengthy analysis of the four Russell factors: State v. Russell, 125 Wn 2d 24, 63 (1994). All four factors were held to be in favor of joinder.
Of concern, based upon what is reported in the Krause opinion, is that the trial court could not find “that there is some manifestly prejudicial effect of going to trial on all of these at one time” Krause, Id at 3. The trial court ruled this way at pretrial motions, then again after the State rested. This writer’s concern is that the State conceded on appeal “the details of each victim’s rape would not have been admissible in a separate trial” Krause, Id at 14. Additionally, the State, at closing, argued the three alleged victims had a shared connection that would be a “shared experience between them long past this case” Krause, Id at 5. The State appeared to be blending the alleged victims together, which is ‘propensity’, not separation. The majority seems to be giving a lot of weight to the inconvenience of the victims by separate trials: “The well-being of victims is a compelling reason to join offenses” Krause, Id at 17. Two of the alleged victims “travelled great distance to testify.” Separate trials, potentially requiring victims…to relive trauma, would do damage to the administration of justice. Id, at 18.
Justice McCloud’s dissent, joined by Justice Mangia, finds that the obvious concern for propensity of evidence is overlooked, even though “judicial economy can never outweigh a defendant’s right to a fair trial” Id, at minority 5, citing State v. Bluford 182Wn 2d 305. McCloud bluntly states what is otherwise veiled in the majority opinion: the majority “silently overrules controlling precedent” about sex crimes being especially prejudicial in character, by holding: “when the charges are sex offenses, we should err on the side of joinder to protect victims, rather than err on the side of severance to protect the criminal defendant’s right to a fair trial. Krause, minority opinion, p 6.
Error was conceded. How can Mr. Krause possibly have had a fair trial?
However, even if the details of each alleged victim’s rape would not have come in, the 7-2 majority seems to be saying that the fact that each alleged victim made a report against Defendant would be permissible – as they are intertwined. So, the balancing is about the weight to be given to proper use – intertwined disclosure vs the full account. The intertwined disclosures weigh in favor of a joint trial. The details of each account are an added bit of prejudice (but good evidence is always prejudicial), but only marginally when the jury hears 3 women making similar independent complaints. However, if there was no limiting instruction, and the stories came in, it would make you think Mr. Krause should get a new trial, but anticipate joinder with strict limiting instructions. The majority does not see it this way.