The Fayetteville Observer reports here that Army trial counsel are asking a military judge in the court-martial of Army Spc. Aaron Pernell to admit pattern evidence under Mil. R. Evid. 404(b).  The report states:

Normally, a jury is not allowed to hear about a defendant’s other convictions or charges. The courts have said such information unjustly taints a jury’s perception of the defendant. . . .

Capt. Jennifer Venghaus, a prosecutor, argued that the “signature” of the assailant from the eight civilian cases – things the attacker said, what he wore, how he responded to things the victims did, his difficulty in maintaining an erection – matches the facts in the rape of a woman on Fort Bragg. . . .

Capt. Kevin Adams, one of Pernell’s defense lawyers, countered that it would be unfair to tell the jury about the civilian evidence. The DNA matched Pernell in only two of the off-post assaults, Adams said.

Sounds like an interesting set of facts and, if your Spc. Pernell, an unfortunate set to be the subject of a regionally publicized hearing.  Our prior coverage with a link to prior a report is here.

5 Responses to “Alleged Army Serial Rapist 404(b) Hearing”

  1. John O'Connor says:

    I see this as more MRE 413 than 404(b). If the media report is correct, some of that stuff is coming in.

  2. Mike "No Man" Navarre says:

    You are probably right, but the “not all of the incidents resulted in sexual assaults” bit made me hedge my bets.

  3. Michael Lowrey says:

    This is also the case in which the Army tried to limit press assess to the arraignment: http://www.caaflog.com/2010/06/05/82d-airborne-division-excludes-reporter-from-ostensibly-public-court-martial/

  4. RY says:

    I’d be interested to know if it is truly MRE 404(b) or 413 because there is a difference in how TC can argue it and the instructions members will receive if it comes in. I can’t remember the case off-hand but CAAF dealt with this in part in 2009 I believe.

  5. John O'Connor says:

    If the news article is correct, it seems that it might be a mixture of the two. For incidents that did not result in a sexual offense, 404(b) analysis should apply. For instances where a sexual offense occurred, 413 should apply. It might be that different incidents lend themselves to different types of permissible arguments.