Monday, March 14, 2011

Prosecution of Accused Child Rapist To Hinge On Hearsay

Waco - Prosecutor Hillary Laborde will present the case against alleged child rapist Benjamin Morrison through the testimony of dozens of witnesses.

The key witness to the complaint will be qualified as an expert, and will be relating hearsay testimony under complex new rules of evidence that have evolved in the first decade of the new millenium, according to a notice to present hearsay testimony, according to a filing by Ms. Laborde.

The practice is liable to result in new law common law being handed down by the appeals courts, which have already made extensive rulings in similar Texas cases.

The conflict above and beyond the basic allegations of the 9-count indictment is that under the Sixth Amendment to the U.S. Constitution, “the accused shall enjoy the be confronted with the witnesses against him.”

This law flows to the states through the authority of the 14th Amendment, which guarantees that no one will be prosecuted, and upon conviction be then deprived of their liberty or property "without due process of law.”

Due process of law has long been held to include an absence of testimony on the record and made in the presence of jurors of hearsay statements, which are defined by Texas Rules of Evidence 801(D) as “Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.”

There are new exceptions to the rule against hearsay testimony in many states when it comes to prosecution of sex crimes against young children.

They include:

- an excited utterance such as a complaint made to 911 operators;
- a residual exception to statements made to investigators;
- medical records;
- the recorded statements of child victims of sexual abuse;
- a doctrine of admitting into evidence the first complaint.

In this case, Mr. Morrison has been indicted for 8 counts of aggravated sexual assault of a child younger than 14 years of age, conviction for any of which could net him a prison term of 25 years to life without the possibility of parole. A ninth count of the indictment alleges that over a period of 5 years, Mr. Morrison subjected the child to continuing sexual abuse while a student at Texas State Technical College.

Readings of current literature shows that legal scholars hold, “The use of hearsay testimony is more appropriate to child sexual abuse cases than in many other criminal cases,” according to John J. Gouchnor, a 2010 graduate of Duke Law writing in the Alaska Law Review.

In many states, Mr. Gouchnor explains, authorities see the problem being one of “fear, and in many cases, love, prevent more than ninety percent of incidents from being reported to the police.”

Experts estimate that 90 percent of incidents of this type of crime go unreported.

What is the cost to society, if not the individual? One law review journal referred to the reporting agencies as part of "the domestic violence industry."

“Victims often require substantial mental health assistance and are much more likely to suffer from at least one psychological disorder. In the long term, sexual abuse makes its victims more likely to abuse drugs or alcohol, spend time in prison, and experience teen pregnancy,” according to a report published by the National Center for PTSD, Child Sexual Abuse.

Court records show that Mr. Morrison has been certified as competent to stand trial and assist with his defense, though he suffers from chronic depression and Post Traumatic Stress Disorder, a condition which he acquired while serving on U.S. Army combat duty during Operation Desert Storm.

The problem presents a unique conflict between the rights of the accused and the need to protect society's tiniest, most vulnerable citizens.

Mr. Gouchnor writes, “The difficulty in prosecuting child sexual abuse cases arises partially because sexual abuse is such an intensely private crime. Often no one except the accused and the victim are present when the abuse takes place, and in many cases the abuser is a parent, relative, or trusted acquaintance of the child.”

The conclusion of at least one court is that “there are perhaps no other cases in which these questions arise so regularly and are imbued with such urgent significance.” (Nitz v. State, 720 P.2d 55, 60 Alaska Ct. of App. 1986)

Detecting and prosecuting sex offenders is notoriously difficult, “in large part because there often are no witnesses except the victim.”

Due to their immaturity, children have inherent limitations to their credibility, although these limitations work to the advantage of prosecutors and investigators because they don't have enough experience to make up stories and then stick to them, according to reports that have appeared in the "Journal of Social Issues," Lucy Berliner& Mary Kay Barbieri, "The Testimony of the Child Victim of Sexual Assault," 125, 127, (1984), and Faye A. Silas, "Would a Kid Lie? Probably Not, Studies Find," A.B.A. Journal, Feb. 1985 at 17.

On the other hand, they are easily shaken up when questioned by an adult, and even less credible when judged by an adult third party.

The problems are psychological and involve the victims' experiencing “low self-esteem, guilt, isolation, depression, embarrassment, and feelings of inadequacy...

“These feelings lead to a reticence to tell anyone about the abuse, and a tendency for children to feel responsible for and blame themselves for it occurrence,” according to Barbara Brooks Johnson in “Sexual Abuse Prevention: A Rural Interdisciplinary Effort, 66 Child Welfare, 165-187 (1987).”

It is very difficult to obtain rock steady testimony from a child who is confronting an alleged offender in open court when that person is a care giver of long standing, a relative, or a step parent.

The problem presented to prosecutors is to strike a balance between less than credible testimony of a child who may be easily confused by the rigorous cross examination of defense counsel, and repetition of the child's story by an expert witness who has perhaps added unfounded interpretation to the story.

To further complicate prosecution efforts, parents have the right to declare their children unavailable to offer their testimony.

Jurors will be charged with finding guilt “beyond a reasonable doubt, and to a moral certainty” under the Texas Code of Criminal Procedure.

Mr. Morrison's attorney, John M. Hurley, has filed pleadings noting exceptions to the prosecution's intentions and to the language of the charge of continuing sexual abuse, which does not identify the alleged child victim by name, “ Defendant can defend against the charge.”

In choosing jurors, prosecution and defense counsel will be asking veniremen if they feel they will be able to render a fair and impartial verdict, and then assess Mr. Morrison's punishment if they deliver a unanimous vote to convict him.

To provide readers with an illustration of the meticulous level of judicial care and high security that surrounds the case of Benjamin Morrison, it is a matter of record that 19th Criminal District Court Judge Ralph T. Strother conducted an impromptu hearing of The Legendary Jim Parks when attorneys and bailiffs saw that I was making a video of Mr. Morrison as deputies led him to the Jail Annex following a pre-trial conference hearing on Friday.

I was detained and brought before the Court following the conclusion of the docket call.

Judge Strother wanted to know if I had made any photographic impressions or audio recordings inside the courtroom.

I told him I had not while the Court Reporter took down my remarks and Judge Stother's for the record.

As anyone may see, the video I made was shot in the third-floor corridor outside the doors of the 19th District Courtroom, in accordance with local court rules.

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