Criminal Law Newsletter
of WEST VIRGINIA PUBLIC DEFENDER SERVICES
|Volume 2, Issue 3||December 2001|
The Joint Committee on Government Operations ("sunset" committee) reviewed Public Defender Services in 1998. A report issued in January, 1999 with six recommendations, most of which required legislative action (which has not taken place to date).
In response to the study, PDS included in its annual report on private counsel billings the cost per charge, in addition to the cost per case category and other data already reported (see our web site at www.wvpds.org). Recently, the Committee directed PDS to determine why judges appoint private attorneys (W.Va. Code 29-21-9 requires appointment of Public Defenders where available except in the case of conflicts or occasional case overloads).
Accordingly, we have revised our order form directing payment to include a check-off whereby the Court can indicate its reasons for appointment. That information will be forwarded to the Committee at the appropriate time. If you are requesting payment for a case on or after 1 January 2002, please use that order form. It is also available on our web site.
As always, if you have any questions concerning this change, or any other matter, you can contact me by telephone at 304-558-3905 or by e-mail at firstname.lastname@example.org.
LOWERING THE BAR IN CHILD SEXUAL ASSAULT CASES
Russell S. Cook, Esq.
"This case is just one more example of the dangers of lowering the standards of proof because we "know" that the defendant "must" be guilty." Neely, J., concurring, in State v. Walter , 188 W. Va. 129, 423 SE 2d 222 (1992).
One of the most noteworthy cases to emerge from the Spring 2001 term of the West Virginia Supreme Court of Appeals was State v. Pettrey, 209 W. Va. 449, 549 SE 2d 323 (2001).
In Pettrey, the Court held that, "[w]hen a social worker, counselor or psychologist is trained in play therapy and thereafter treats a child abuse victim with play therapy, the therapist's testimony is admissible at trial under the medical diagnosis or treatment exception to the hearsay rule, West Virginia Rule of Evidence 803(4), if the declarant's motive in making the statement is consistent with the purposes of promoting treatment and the content of the statement is reasonably relied upon by the therapist for treatment. The testimony is inadmissible if the evidence was gathered strictly for investigative or forensic purposes."
With this case, the Court has apparently elevated "play therapy" to the highest levels of accepted scientific theory. It has now reached, as noted in the concurring opinion, " a heightened truth-detecting realm where it most assuredly does not belong."
Mr. Pettrey was the father of two children. Following the impregnation of the children's mother by her fifteen- year- old boyfriend, the children came to live in West Virginia with their maternal grandmother and began visitation with their father. In April of 1998, the kindergarten teacher of one of the children noted what she considered to be signs of possible sexual abuse. These allegations were reported to the authorities. These signs were noted at approximately the same time that the children's maternal grandmother began noting purported changes in the children's behavior.
The play therapist, Ms. Phyllis Hasty, testified that she began seeing one of the children (K.R.) in February 1998, when the child was brought to her with complaints of "acting-out behavior and possible sexual abuse"(emphasis added). K.R. did not disclose any incidents of sexual abuse until August 4, 1998, after over five months and twelve sessions of "therapy". The other child, D.R., did not begin seeing Ms. Hasty until after May 7, 1998, and did not report any instances of abuse until July, 1998.
Mr. Pettrey was indicted in February 1999 for four counts of first degree sexual assault, four counts of incest and four counts of sexual abuse by a parent.
At trial, the only witnesses for the state were the kindergarten teacher, the maternal grandmother and the play therapist. The trial court conducted a hearing prior to trial regarding the testimony of the children. Based upon the assertions of the prosecutor and the play therapist that the children would be unable to testify, the court found that the children were "unavailable" to testify. The court did not conduct its own inquiry of the children.
Based solely upon the testimony of these witnesses(1), Mr. Pettrey was convicted of nine counts and was sentenced to prison.
Pettrey presents a fascinating example of how widely divergent judicial opinion can still somehow arrive at the same conclusion. The majority opinion and the concurring opinion are not remotely upon the same judicial footing. Indeed, the concurring opinion flatly criticizes all aspects of the majority's rationale and legal reasoning.
The majority opinion held admissible the statements of the play therapist. Writing for the majority, Justice Maynard wrote that the basis for the admissibility of these statements, which are clearly hearsay, was the Rule 803(4) hearsay exception concerning "statements for purposes of medical diagnosis or treatment".
What, then, is the basis for the admissibility of such statements? Professor Franklin Cleckley has stated that the rationale for this exception is the belief that a person making a statement to another person rendering medical care is not likely to lie or exaggerate about their physical condition. See Cleckley, Handbook on Evidence, §8-3(B)(4), pp. 216 (3rd Edition). It logically follows, then, that for a statement to be admissible under this exception, the declarant must know that his/her statement is being offered for the purposes of medical diagnosis or treatment.
Nowhere in the Pettrey opinion is there any indication that this very basic requirement was satisfied. Indeed, the concurring opinion points out this rather glaring omission: "because there was no showing that these very young children were aware that they were making statements for the purposes of treatment or diagnosis, [the exception] simply does not apply."
It is equally problematic that the Pettrey court saw fit to include the "investigative or forensic" limitations on this rule. It would be naive to accept that any experienced investigating officer or case worker, when presented with a similar scenario, is not going to attempt to classify the child's visit to a play therapist as anything other than a visit solely for the administration of medical treatment. It is far too easy to disguise an investigative interview or forensic evaluation, prompted by law enforcement, as a "treatment" session. All that the state must do is invoke the magic word "treatment", and any statement to any personnel, no matter their degree of training, can be admitted into evidence.(2)
THE CONCURRING OPINION
One very frustrating aspect of Pettrey is the concurring opinion. Authored by Justice Starcher, and joined by Justice Albright, the concurrence flatly disagrees with the entirety of the majority's analysis and reasoning. Essentially, while there is a concurrence in the conviction, there is vehement disagreement with all of the reasons for affirming the conviction.
The concurring opinion notes, as stated above, that "[w]here there is no showing that a declarant was aware that their statement was made for purposes of medical treatment and diagnosis, [803(4)] is not applicable." The concurrence then takes considerable issue with the majority's unconditional acceptance of "play therapy", and states that the majority "incomprehensively and unnecessarily elevate[s]" such therapy into the realm of medical diagnosis and treatment. Noting that "fabrication and fantasy are at the core of children's play" (emphasis in original), the concurrence notes that there is not a "shred of evidence . . .that statements made by a child to a person who is playing with the child are more likely to be true than statements that the child makes in other situations. In fact, intuition suggests that the contrary may be true ". (emphasis added). Seemingly realizing that this opinion is treading on the edge of a dissent, the concurring justices seem to pull up sharply at this point, and states in rather terse terms (two sentences) that the statements should be admissible under the 804(b)(5) "catch-all" exception.The difficulty with this reasoning can be found in State v. Johnson, ___W.Va. ___, ___SE 2d ___ (# 28665, December 11, 2001), where the Court noted that "[t]he exceptions carved out by. . .Rule 804(b)(5) are narrow, and the statements offered must normally be so uncontroversial that cross-examination would be of marginal utility."(emphasis added). Johnson, citing State v. James Edward S., 184 W. Va. 408, 415, 400 SE 2d 843, 850 (1990). Clearly, the play therapist's statements in this case do not fall into this category. (3)
Pettrey obviously places a considerable burden on the defendant accused of sexual crimes against children. This case seems to considerably reduce the degree of proof required in child sexual assault cases, and would certainly lend itself to abuse by prosecuting authorities. How, then, can a defense attorney attempt to deal with this situation?
One possible way to address the issue of such testimony is to determine, as soon as possible, the identity of the person that requested play therapy be administered to the child. If this person was a law enforcement officer or any other person involved in the investigation of such cases (i.e., a member of an MDT), an argument should be made that the referral was not made for medical or therapeutic purposes but was merely an investigative interview disguised as therapy. The lack of involvement of other medical personnel, such as referring physicians or pediatricians, is a strong factor that should be presented to the court to indicate that the "therapy" session is nothing more than the continuation of an investigative interview.
From an evidentiary standpoint, it is also necessary to request that the court conduct a separate inquiry and finding as to each separate assertion in the statements. For example: a child reports an alleged sexual abuse to a physician, and names the identity of the alleged perpetrator. A separate inquiry by the Court should be conducted as to (1) the description of the attack and (2) the identity of the attacker. According to Professor Cleckley, the description testimony may be admissible under 803(4), but the identity testimony is not, because the identity of the attacker is not pertinent to diagnosis or treatment of the child. As Professor Cleckley noted, "[s]eldom if ever will the identity of an individual be sufficiently related to diagnosis or treatment". Cleckley, Handbook on Evidence, § 8-3(B)(4), pp. 218 (3rd Edition).
The unfortunate result that emerges from Pettrey is that the court now equates "play therapy" with medical treatment, and has now placed these questionably scientific sessions alongside long-standing, solidly established scientific evidence. (In fact, there would seem to be greater scientific support for the admission of a polygraph examination than for the evidence accepted in this case). Child sexual assault cases are difficult to defend; they are also difficult to prosecute. The final repercussion of the Pettrey decision would seem to be the removal of a considerable amount of this difficulty from the prosecution of these cases.
1. There was no physical evidence admitted linking the defendant to the offenses, or in fact any physical evidence at all indicating that the children had been sexually molested.
2. The play therapist in this case was not a registered play therapist. The majority stretches to note that Ms. Hasty had completed "most" of the qualifications necessary to become a registered play therapist.
3. On September 6, 2001 the Court denied by a vote of 3-2 rehearing on this case. The concurring justices voted to rehear the case.
The following selected cases will be argued in the United States Supreme Court during the October 2001 Term. There may be more cases scheduled as the term progresses. The address below provides links to lower court decisions, docket sheets and Supreme Court briefs where available.
|Monday, Oct. 29|
Due Process - Administrative Forfeiture
Dusenbery v. United States, (No. 00-6567)
Question:Whether the United States satisfied the notice requirements of the Due Process Clause by sending a federal prisoner notice of an administrative forfeiture proceeding by certified mail addressed to the prisoner at the prison where he was incarcerated.
Federal Habeas Corpus
Lee v. Kemna (No. 00-6933)
Question:When state law provides both fair notice of the existence of a procedural rule and a reasonable opportunity to comply, is the state's default rule rendered "inadequate," for the purpose of subsequent federal habeas review, by occasional state-court cases which deny defaulted, meritless claims on the merits rather than invoking the default rule?
|Tuesday, Oct. 30|
First Amendment - Child Pornography
Ashcroft, et al. v. The Free Speech Coalition, et al., (No. 00-795)
Question: The Child Pornography Prevention Act of 1996, prohibits, inter alia, the shipment, distribution, receipt, reproduction, sale, or possession of any visual depiction that "appears to be of a minor engaging in sexually explicit conduct." 18 U.S.C. 2252A, 2256(8)(B) (Supp. IV 1998). It also contains a similar prohibition concerning any visual depiction that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." 18 U.S.C. 2252A, 2256(8)(D) (Supp. IV 1998). The question presented is whether those prohibitions violate the First Amendment to the Constitution.
Due Process - Civil Commitment of Sexually Violent Predators
Kansas v. Crane, (No. 00-957)
Question: Whether the Fourteenth Amendment's Due Process Clause requires a State to prove that a sexually violent predator "cannot control" his criminal sexual behavior before the State can civilly commit him for residential care and treatment?
|Monday, November 5|
Sixth Amendment - Conflict of Interest Mickens v. Warden, (No. 00-9285)
Question: Did the Court of Appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known? [Petitioner's trial counsel previously represented the victim.]
|Tuesday, November 6|
Guilty Plea - Violation of Rule 11
United States v. Vonn, (No.00-973)
Questions: 1. Whether a district court's failure to advise a counseled defendant at his guilty plea hearing that he has the right to the assistance of counsel at trial, as required by Federal Rule of Criminal Procedure 11(c)(3), is subject to plain-error, rather than harmless-error, review on appeal when the defendant fails to preserve the claim of error in the district court.
2. Whether, in determining if a defendant's substantial rights were affected by a district court's deviation from the requirements of Federal Rule of Criminal Procedure 11(c)(3), the court of appeals may review only the transcript of the guilty plea colloquy, or whether it may also consider other parts of the official record.
Fourth Amendment - Is probation agreement authorizing search valid consent for other crime investigation search
United States v. Knights, (No. 00-1260)
Question: Whether respondent's agreement to a term of probation that authorized any law enforcement officer to search his person or premises with or without a warrant, and with or without individualized suspicion of wrongdoing, constituted a valid consent to a search by a law enforcement officer investigating crimes.
|Monday, November 26|
Death Penalty - Failure to instruct on ineligibility for parole
Kelly v. South Carolina, (No. 00-9280)
Question: Did the trial judge's refusal to inform a capital defendant's sentencing jury that he would never be eligible for parole if the jury sentenced him to life imprisonment, rather than to death, violate Simmons v. South Carolina, 512 U.S. 154 (1994)?
|Tuesday, November 27|
Fourth Amendment - Border search
United States v. Arvizu, (No. 00-1519)
Question: Whether the court of appeals erroneously departed from the totality-of-the-circumstances test that governs reasonable-suspicion determinations under the Fourth Amendment by holding that seven facts observed by a law enforcement officer were entitled to no weight and could not be considered as a matter of law.
Whether, under the totality-of-the-circumstances test, the Border Patrol agent in this case had reasonable suspicion that justified a stop of a vehicle near the Mexican border.
|Wednesday, November 28|
First Amendment - Child Online Protection Act
Ashcroft v. American Civil Liberties Union, et al.,(No. 00-1293)
Question: The Child Online Protection Act (COPA) makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). COPA relies in part on "community standards" to identify material that is "harmful to minors." 47 U.S.C. 231(e)(6) (Supp. IV 1998). The question presented is whether the court of appeals properly barred enforcement of COPA on First Amendment grounds because it relies on community standards to identify material that is harmful to minors.
Fifth Amendment - Sexual offenders participation in clinical rehab program
McKune, et al. v. Lile, (No. 00-1187)
Question: Whether the Fifth Amendment privilege against compelled self-incrimination prevents a State from encouraging incarcerated sexual offenders to participate in a clinical rehabilitative program, in which participants must accept responsibility for their offenses, by conditioning the availability of certain institutional privileges on participation in the program.
Porter v. Nussle, (No. 00-853)
(Oral Argument: After Jan. 1, 2002)
Question: Whether the exhaustion provision of the Prison Litigation Reform Act of 1995 requires an inmate to exhaust available administrative remedies before filing an action alleging a use of excessive force by a correction officer.
Alabama v. Shelton, (No. 00-1214)
Subject:Right to Counsel, Suspended Sentence
Atkins v. Virginia, (No.00-8452)
(Oral Argument: After Jan. 1, 2002)
Question: Does the execution of mentally retarded individuals convicted of capital crimes violate the Constitution's 8th Amendment prohibition against cruel and unusual punishment?
Newland v. Saffold, (No. 01-301)
(Oral Argument: After Jan. 1, 2002)
Question: Does the time during which a habeas corpus petitioner failed to properly pursue his state collateral remedies fall within the meaning of "pending" set forth by the Antiterrorism and Effective Death Penalty Act's provision, which tolls the running of the statutory limitations period?
Board of Education v. Earls,(No. 01-332)
Subject:Fourth Amendment - Student drug screening
Despite the many safeguards built into the American system of criminal justice, cases of wrongful convictions of factually innocent persons are repeatedly documented and reported. WRONGLY CONVICTED Perspectives on Failed Justice, recently published by Rutgers University Press, places the relative frequency of these convictions in the broader context of a pattern of systemic criminal justice failures and flaws. The book brings a multi-disciplinary perspective to an attempt to examine a broad range of factors contributing to the conviction of innocent persons and concludes with an essay on the ultimate cost of a failed system of justice - erroneous convictions and the death penalty.
Considered in the four sections of the book are the causes of wrongful convictions, the social characteristics of the wrongly convicted, individual case studies and visions for change. These themes are neatly woven and integrated throughout by editors Saundra D. Westervelt and John A. Humphrey, sociology professors at the University of North Carolina at Greensboro.
The first series of essays explores the many factors that lead to wrongful convictions. In chapter one, authors George Castelle, Chief Defender in the Kanawha County Public Defender Office and adjunct lecturer at the West Virginia University College of Law, and Elizabeth Loftus, professor of psychology and adjunct professor of law at the University of Washington, Seattle, identify some of the legal and psychological factors that join in the conviction of the innocent. A theme throughout this chapter is cross-contamination - how one piece of misinformation can contaminate other evidence in the case, making conviction much more likely. Specifically, the authors contend four primary components led to the wrongful conviction of William Harris for a sexual assault that occurred in Rand, West Virginia - suggestive interviewing techniques and a photo-biased lineup, withholding of crucial information favorable to the defense, erroneous or exaggerated forensic science testimony of Fred Zain, head of the serology division of the West Virginia State Police Crime Laboratory at the time, and the ultimate infectivity of the misinformation that enhanced the likelihood of conviction. The authors conclude by offering suggestions on cautionary measures that can be taken at various stages in the process to help reduce wrongful results.
Other factors explored in Part I include police-induced false confessions and unreliable informants. Existing psychological, criminological and sociolegal literature on police interrogation and false confessions is examined to determine how interrogation techniques can lead to false confessions, to determine the impact of an unreliable confession on judges and juries and to glean suggestions for policy reforms to reduce the occurrence of false confessions. Another source of unjust results, the misuse and misconduct of informants, is also examined in a separate chapter. The final essay in the first section discusses the scope and nature of the police role in wrongful convictions, noting that intrinsic failures occur not only in cases where there is heightened public pressure for a conviction, but also in low-profile cases through routine processing of the marginalized accused. Noted failures within the system include the admission of evidence that is susceptible to error such as eyewitness testimony, confessions, informants' testimony and speculative science.
The essays in Part II identify the social characteristics associated with an increased risk of wrongful conviction. The authors in this section focus on extrinsic factors associated with the conviction of the innocent such as social characteristics, sex, ethnicity, marital status, education and the role of racial bias.
Through a series of case studies, the third section shows the faces of many wrongly convicted, while the final section of the book offers visions for change in the twenty-first century. In addressing the merits of the use of an adversarial system in a search for factual truth, the contributors urge the re-examination of the use of informants and suggest reforms for the systemic factors that disadvantage the defense and excuse poor representation. Issues arising from post-conviction DNA exonerations are also addressed. Fittingly, the final essay examines the ultimate cost of a flawed system of criminal justice - the wrongful execution of an innocent person.
Contributors bringing a wide range of data and perspective to the issues include lawyers, criminologists and social scientists such as Peter Neufeld, Barry Scheck, Richard Leo, assistant professor of criminology, law and society, psychology and social behavior at the University of California at Irvine, and Hugo Adam Bedau, Austin Fletcher Professor of Philosophy Emeritus at Tufts.
In Apprendi v. New Jersey, 530 U. S. 466 (2000), the United States Supreme Court held the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. The defendant was convicted under a New Jersey statute that classified the possession of a firearm for an unlawful purpose as a second-degree offense punishable by imprisonment for between five and ten years. His sentence was enhanced for an extended term of imprisonment under a separate statute, the "hate crime" law, upon a preponderance finding by the trial judge that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." The Supreme Court reversed in a five-four decision holding that the defendant had a constitutional right to have a jury make the requisite finding of a biased purpose beyond a reasonable doubt.
W.Va. Code 61-2-14a sets forth the elements of the crime of kidnaping in this state and provides for a life sentence without eligibility for parole with the following exceptions: (1) a jury (or judge if the defendant pleads guilty) may recommend mercy, resulting in eligibility for parole; (2) in all cases where the victim is returned, or permitted to return, alive, without bodily harm but after ransom, concession or advantage has been paid or yielded, the punishment is a definite term of years not less than twenty nor more than fifty; (3) in all cases where the victim is returned or is permitted to return alive without bodily harm but without ransom, concession or advantage paid or yielded, the punishment is a definite term of years not less than ten nor more than thirty. Failure to return the victim without bodily harm, therefore, is a prerequisite to an imposition of a life sentence for a kidnaping conviction, and failure to return the victim without bodily harm and ransom, concession or advantage paid or yielded are prerequisites to an imposition of a sentence beyond the minimum term of years.
In State v. Farmer, 191 W.Va. 372, 445 S.E.2d 759 (1994), the state Supreme Court found the provisions of the kidnaping statute relating to the various punishments to be imposed do not set forth elements of the offense, but are sentencing factors for the trial court to determine. Farmer held the trial judge has discretion to make findings as to whether the defendant inflicted bodily harm on the victim and as to whether ransom, money, or other concession was paid or yielded for return of the victim for purposes of imposing sentence. See also, State v. King, 205 W.Va. 422, 518 S.E.2d 663 (1999) (trial court must also make findings of whether victim was returned or permitted to be returned).
Apprendi casts doubt on Farmer and strengthens the argument that failure to return the victim without bodily harm and ransom, concession or advantage paid or yielded must be alleged in the indictment and found by the jury beyond a reasonable doubt before a sentence beyond the minimum term of years may constitutionally be imposed for kidnaping. In In re Winship, 397 U.S. 358 (1970), the Court held "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364. The Apprendi Court minimized the importance of whether a fact is a sentencing factor or an element of the offense, stating that "the relevant inquiry is one not of form, but of effect B does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" 530 U.S. at 494.
As Justice Scalia opines in his concurring opinion, the constitutional "guarantee that '[i]n all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury' has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury." 530 U.S. at 498.
|Here at Public Defender Services, we would like to take this opportunity to send our sincere condolences to the friends, families and co-workers of the innocent victims who lost their lives due to the tragic events that took place in our country on September 11, 2001.|
Since the purpose of this newsletter is to provide you with information and tools to help you in your job, suggestions about feature articles, issues you want addressed or other items you would like to see in the publication are more than welcome. You may have a funny experience or a learned treatise of your own that you would like to share with other criminal defense practitioners. Please send any suggestions, comments and/or contributions to Russ Cook at WV Public Defender Services by conventional or electronic mail at email@example.com.
West Virginia Public Defender Services will be sponsoring a Training Session for New Attorneys or for attorneys with limited experience. Ira Mickenberg will be the coordinator for this event, which is designed to provide newer Public Defender attorneys with training in a number of pre-trial areas.
West Virginia Criminal Law Newsletter
A bi-monthly publication of
West Virginia Public Defender Services
~Criminal Law Resource Center~
Jack Rogers, Executive Director
Inquiries, articles and suggestions welcome.
Please direct the same to Jack Rogers, Russ Cook or Elizabeth Murphy by any of the following means:
Department of Administration
Public Defender Services
Building 3, Room 330
1900 Kanawha Blvd., East
Charleston, WV 25305-0730
(304) 558-3905 phone
(304) 558-1098 fax
E-mail Jack Rogers:firstname.lastname@example.org
E-mail Russ Cook:email@example.com
E-mail Elizabeth Murphy: firstname.lastname@example.org
(Publications available in large type upon request)