Toddler case creates legal ‘perfect storm’ | TheUnion.com
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Toddler case creates legal ‘perfect storm’

The District Attorney’s Office is taking flack for its resolution of the Rider child molest case. The Rider case was a “Perfect Storm” of legal rules increasing the odds of keeping the truth out of the courtroom.

First, I don’t know how many lay persons have ever heard of the corpus rule. This rule requires some evidence that a crime occurred, independent of the defendant’s own statements. We inherited the rule from English common law; it served the limited function of ensuring that a defendant could not be convicted of a crime to which he had confessed if that crime never occurred.

It originated in the early 19th century in response to a notortious murder case where the victim suddenly reappeared after his alleged murderer had been convicted and executed solely on the basis of a confession. In its modern form in California, the prosecution cannot get a conviction without some evidence, independent of the defendant’s own statements, that the crime occurred.



Second, the Sixth Amendment to the United States Constitution guarantees the accused the right to confront and cross-examine his/her accuser. In 2004, the United States Supreme Court decided Crawford v. Washington once again revisiting its struggle to reconcile the Confrontation Clause with the admissibility of hearsay statements. The Crawford decision significantly altered the ever-changing relationship between federal and state hearsay exceptions and the Sixth Amendment right to confront an accuser.

Crawford effectively requires that child sexual assault victims testify in court unless the evidentiary statement was nontestimonial. Crawford gutted two California laws that would have allowed us to prevail in Rider. Those laws were two California exceptions to the hearsay rule that would have allowed the DA to use under certain circumstances a statement the child had made to police in a child sexual abuse case. This statement was the only evidence independent of the father’s admissions, that a molest occurred.




Now we come to the issue of how assertive the District Attorney’s Office should have been. Just when does assertiveness become risky gambling with the odds? The child told the Deputy District Attorney handling the case and others that he did not remember the events in question. Yet, there was the statement to the police indicating that at one time he did. Was this memory loss real or fake? If it was fake, the statement could come in as a prior inconsistent statement, a long established traditional exception to the hearsay rule that Crawford would allow.

If the child was not faking the memory loss, the statement could not come in as a prior inconsistent statement. The Deputy District Attorney drove to the child’s county of residence and personally interviewed the child about the memory loss. He was not convinced the child was faking.

So what to do next? He could have had the child examined by a psychologist to get a professional opinion. If the opinion was the child was faking a memory loss, the previous statement could come in and the People would have their corpus. If the opinion was the child’s memory loss was genuine, the previous statement was not admissible and the People would have no case. Instead of a plea bargain, you have a dismissal.

So why not bring in a doctor? It was a question of rolling the dice. If the doctor’s opinion was the memory loss was genuine, the doctor’s report would have to be turned over to the defense. Enter stage left another United States Supreme Court case, Brady v Maryland, which requires the prosecution to give to the defense without a request any evidence that is helpful to the defense. Armed with this report any competent defense attorney could get a dismissal or acquittal based on the above rules of law.

So rather than gamble and loose everything, my office offered a plea to a reduced felony sentence that exposes the defendant to six years in state prison if he should violate the terms and conditions of probation.

Those are the facts in the Rider case, and the law that the attorneys in the District Attorney’s Office take an oath to follow. Now with this additional information, law enforcement and the citizens of this county can judge for themselves how assertive my office was in that case.

My office welcomes oversight by the press and normally Mr. Ackerman does his homework well; however, in the Nov. 7 opinion piece he has misread the Judicial Council Filings and Dispositions by Outcome statistics.

Yes, in 2004-05 there were 788 felony filings in Nevada County. However, of those 788 there were, as of the end of that fiscal year, only 487 dispositions. Of those 487 dispositions, 303 were felony dispositions, 39 were misdemeanor dispositions [not your 139 figure], 136 were acquittals or dismissals, and nine were transfers. You will see that the four latter figures add up to 487. That would leave around 301 cases filed in fiscal 2004-05 that were still pending or in warrant status as of the end of that fiscal year. So of the 487 felony dispositions, 62 percent were felony convictions, not your 38 percent figure. Do the same math for nearby counties for the same year and you have 55 percent for Sacramento County, 52 percent for Sutter County, 51 percent for Yuba County, 28 percent for Placer County, and 64 percent for Butte County.

The Union readers can go to the Judicial Council Web site tp look at these statistics, those for other fiscal years, and compare Nevada County to other counties. Then they can decide for themselves how assertive my office is in general. The Judicial Council Web site is at http://www.courtinfo.ca.gov.

ooo

Michael Ferguson is the Nevada County District Attorney.


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