A new look at child sex cases
It used to be that there was nothing more difficult to defend than an allegation that the defendant had sexually abused a child. I don't know whether that's changing, but in the past two weeks a jury verdict, a trial court's decision, and three appellate opinions have certainly bucked that trend.
The jury verdict came in the case of James Vaughan, who'd been convicted after a bench trial of rape of a 9-year-old girl and had spent a year in jail before another judge granted him a new trial, which resulted in his acquittal. This article tells the full story, which essentially proves the truth of the observation that the man who said money can't buy happiness never sat in a courtroom.
The trial court decision, a frankly astonishing one, came in the case of Nancy Smith and Joseph Allen, who'd spent fifteen years in prison after being convicted of sexually molesting some children in Lorain in 1994. Their cases were returned to the judge for resentencing to rectify an omission in the original entry, which had failed to indicate that they'd been convicted after a jury trial. Instead, the trial judge reviewed the transcript, determined that much of the testimony would now be inadmissible, and granted a Rule 29(C) judgment of acquittal. I'll go into more detail on that one in the coming weeks.
Two of the appellate decisions involved the issue of child interrogations. The 3rd District's decision in In re K.W. presented the easier situation. K.W. was a 10-year-old who was observed sexually abusing two younger children, and he and his mother were picked up by a social worker and taken to the agency, where K.W. was questioned by the worker and a detective. That interrogation led to another charge of rape. Although departmental policy required all juveniles to be advised of their Miranda rights, that wasn't done; in fact, the worker and the detective told the mother that they merely wanted to "help" K.W. The court had no problem tossing the confession, but it wound up not mattering: because the confession was the only evidence of the rape allegation, the court threw out the entire finding on the seldom-used corpus delicti rule, but held that the evidence pertaining to the abuse was sufficient to make the admission of the confession harmless error on that score.
The 9th District's decision in In re T.F. presented a closer call: T.F., a 12-year-old, had confessed to sexual assaults on two minors during an interrogation at the police station. T.F. was read his rights, but the appellate court concluded that his waiver of those rights was invalid. Most significant here is that T.F.'s mother accompanied him to the station, was present during the interview, and on a number of occasions told her son to go ahead and answer questions; the court notes that "the Detective did not inform T.F. that even if his mother chose to make a statement, T.F. was not required to do so." Equally significant was the court's finding that T.F. was in custody (not merely significant, but essential; Miranda only applies to custodial interrogations). There is some merit to the dissent's complaint that the opinion comes close to holding that an interrogation of a juvenile at a police station is always custodial; I'm not sure that's a bad holding, though, and in the circumstances of this case, I think the majority got it right. In any event, if you've got a case involving juvenile interrogations, K.W. and T.F. are a good place to start.
I mentioned yesterday that reversals for speedy trial violations are rare, but so are reversals for insufficient evidence. Turns out the 8th District had one of each in the same week, the latter coming in State v. Brooks. Another sex case: Brooks was convicted of gross sexual imposition for incidents supposedly occurring while he gave his girlfriend's 3-year-old son a bath. The major testimony came from the paternal grandmother, who testified that a few days after the incident, she'd questioned the boy and been told that Brooks had "touched my butt and my pee pee and he made me touch his butt."
The child had made a number of other statements, though, including a denial that anything inappropriate had taken place, and another that his mother had been present during the touching. The trial judge had let the grandmother's testimony in under the 803(4) hearsay exception -- statements made for purpose of medical diagnosis. Courts have allowed statements under that exception even when made to non-medical personnel, such as a social worker, but a grandmother is a bridge too far. As the court also notes, there's abundant case law which holds that statements won't fall under this exception if the questioning is conducted in too leading or suggestive a manner, as happened here. Finally, although the state hadn't argued that below, the court also determined that the evidence couldn't have come in as an "excited utterance," primarily because it wasn't spontaneous.
Not only did the court toss the grandmother's testimony, but it concluded that the rest of the evidence wasn't sufficient to sustain the conviction. The key phrase from the opinion is, "absent this improper evidence [the grandmother's testimony], there is insufficient evidence to support the convictions."
That's a problem, because of the Supreme Court's decision last year in State v. Brewer. Brewer is uncannily similar to Brooks: it was an 8th District case involving sexual abuse of child, in which the court had reversed because of improper admission of hearsay. Without getting into the somewhat labryinthine procedural history after that, the upshot was the Supreme Court's holding that in determining the sufficiency of the evidence, the appellate court could consider all of the evidence, even that which had been improperly admitted. Whether that's good law is another story, especially in light of the fact that in Brooks there really isn't anything other than the grandmother's testimony. But it may be that Mr. Brooks isn't completely out of the woods just yet.