Carmell, Scott L. v. Texas (05/01/2000)

By: Susan Stumme, Medill News Service

Questions presented

Did the Texas Court of Appeals err, in violation of the 5th and 14th Amendments, by concluding that application of a 1993 version of a Texas criminal statute was not ex post facto when: (1) the offense occurred in 1992, one full year before the adoption of the new rule of law; (2) there was no outcry for approximately three years, and law in effect at the time required an outcry within six months; and (3) Carmell would have otherwise been entitled to an acquittal?

Brief

Scott Leslie Carmell was a counselor in Texas specially trained to help incest victims when Eleanor Alexander sought his professional assistance in the late 1970s. Alexander was married at the time, with one daughter born in 1978. She later divorced her husband, Ron Borchert, in 1987, marrying Carmell the following year.

Beginning in 1990, Carmell began to make inappropriate sexual advances toward his stepdaughter, known as K.M., telling her it would encourage family togetherness. These encounters escalated in magnitude and frequency until Carmell finally had sex with K.M. in September 1993. The sexual relationship continued until early 1995.

K.M. did not reveal to her mother that she had been abused until 1995. Alexander then filed a complaint with police. Carmell was tried and convicted in January 1997 of two counts of aggravated sexual assault, five counts of sexual assault and eight counts of indecency with a child. He received a sentence of life in prison for aggravated sexual assault and 20 years in prison on the remaining counts.

Carmell's attorney argued before the state appellate court that his conviction on several counts, including those of aggravated sexual assault, rested on insufficient evidence. He also argued that the case was decided ex post facto, or based on a law that came into existence after the offense took place.

The Texas law in effect in June 1992, when one of the sexual assaults in question occurred, stated that a victim's uncorroborated testimony could only be sufficient to convict an offender if the victim had informed someone of the incident within six months. An exception stipulated that the ""outcry"" requirement did not apply to those under 14 years of age. K.M. was barely 14 in June 1992, having celebrated her birthday in March.

The statute was amended in 1993, changing the ""outcry"" age requirement to 18 years of age and allowing the victim one full year to come forward.

In February 1998, a unanimous Texas Court of Appeals upheld Carmell's conviction, holding that the law in effect at the time of Carmell's 1997 trial was the 1993 amended version of the statute. Therefore, the court said, the time elapsed before K.M. came forward was irrelevant because she was still a minor at the time of the assault.

Carmell's attorney also made several semantic arguments based on the definitions of sexual assault and indecency, alleging that his client's actions did not rise to the level of the alleged offenses by law. The court found those arguments to be without merit.

The U.S. Supreme Court granted certiorari on June 14, 1999, allowing Carmell to proceed in forma pauperis and choosing only to review the ex post facto implications of the case.

On May 1, 2000, the Court, divided along unusual lines, reversed 5-4, holding that the convictions are a violation of the Constitution's ex post facto clause to the extent that they are not corroborated by other evidence.

Relying heavily on Calder v. Bull, a Supreme Court case dating back to 1798, Justice John Paul Stevens wrote for the majority that it is a violation of the Constitution's ex post facto clause if a law alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.""

In so holding, the majority rejected in the name of ""fundamental justice"" the argument made by the U.S. Solicitor General that the holding from Calder v. Bull be revisited.

Joining Stevens in the majority were Justices Antonin Scalia, David Souter, Clarence Thomas, and Stephen Breyer.

Justice Ruth Bader Ginsburg wrote the dissent for Justices Sandra Day O'Connor, Anthony Kennedy and Chief Justice William Rehnquist. The dissent argued that the majority had misinterpreted both the Texas law and the Court's 200-year old opinion in Calder v. Bull and said that there were far easier ways of ""ensuring fair notice so that individuals can rely on the laws in force at the time they engage in conduct, and sustaining the separation of powers while preventing the passage of vindictive legislation.""