Justice Corbin’s dissent in State v. Lard

4 02 2014

Jerry Lard was sentenced to death after killing a police officer that begged for his life.  The State introduced everything bad imaginable about Lard during the trial.  The trial court admitted the evidence to rebut the mental disease or defect defense and show Lard actually had antisocial personality disorder.  The State claims that antisocial personality disorder is a medical way of describing someone who is mean.

While the majority affirmed the conviction and sentence, Justice Corbin wrote a stirring dissent.  Justice Corbin called for the trial courts to start actually looking at the probative value versus risk of unfair prejudice.  Justice Corbin noted that in this case there was an avalanche of prior bad acts elicited concerning Lard.  The State introduced evidence of statements evidencing a lack of remorse and tattoos of graveyards and “hell bound.”   Justice Corbin, while not disputing the possible relevance, noted that such evidence cannot possibly be nearly as probative as it is unfairly prejudicial.

Three questions loom large from this case.  First, is the State now always going to be able to use all prior bad acts in cases where antisocial personality disorder has been diagnosed?  Such an implication would be devastating to mental disease or defect cases.  Second, it is unclear why Justice Corbin chose to reverse the sentencing phase only.  If the prior bad acts were improper at any point it would seem to have been the guilt phase.  Nevertheless, I would prefer him to take a stand at sentencing phase than none at all.  Third, it appears that Justice Corbin and Justice Hannah have been seeing cases similarly early in 2014.  They have now dissented together in two cases this year.  They have both been highly critical of trial courts for not properly evaluating 404(b) and 403.  Hopefully they can pull a couple other justices their way and put some substance back in those two rules.


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