Changes sought in how kids testify

As a man once convicted of molesting a young girl goes free, child advocates are calling for changes in a state law that allows children alternatives to testifying in open court.

Last year, the Nebraska Supreme Court overturned the 2006 first-degree sex assault conviction of Steven Parker, 43, of Colorado Springs, Colo., and granted him a new trial. The court ruled that Parker was treated unfairly because a partition shielded the victim, then 11, from Parker while she testified.

The victim's therapist and parents recently decided that she wasn't mentally and emotionally prepared to testify against Parker again, said prosecutor Jennifer Miralles. The charge was dropped, though it still could be refiled.

Bob Creager, Parker's attorney, said he's glad the case was brought to a conclusion.

To Gene Klein, executive director of Project Harmony, an Omaha child advocacy center, the dropped charge is the start of a new fight.

He wants state law updated to allow new technology to help protect children when they testify.

“This case is a perfect example of why this law really needs to be examined,” he said. “We need to come up with more creative options that protect child witnesses, but also give defendants fair trials. When this law was created most people didn't even have a computer.”

Video conferences, two-way cameras and webcasting all would allow a child and a defendant to be in different locations while the child testifies, but the child still would be available to be cross-examined, Klein said.

In felony cases, when a compelling need is shown, Nebraska law allows children age 11 or younger to testify on videotape or in the judge's chambers, ordinarily in the presence of the defendant. The law suggests that other accommodations could be allowed, as long as they don't jeopardize the defendant's right to confront the accuser, guaranteed in federal and state law.

“To face the accuser and cross-examine is at the heart of our adversarial system of justice,” said Creighton University law professor R. Collin Mangrum. “That's an ancient common law right.”

Mangrum said the concept is based on fairness. He said it would be more difficult for an alleged victim to falsify statements with the accused present.

“This is the fairest way in the world to have a trial system,” he said. “Everybody has the right to face their accuser.”

Klein said he understands defendants' rights but wants to also protect child victims from trauma.

“The rights of the defendant are what is driving this issue, and my position is that these children have rights to be able to present their story in a way that doesn't re-traumatize them,” Klein said. “I think as we are seeing more and more (child victim) cases that have the potential to go to felony court, this issue is one that really needs to be looked at. ”

Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said he's looking forward to talking with Klein.

“I am certainly willing to take a look at the law,” he said. “I would be happy to work with Project Harmony and other organizations so that we are adequately protecting the interests of child victims.”

Kathy Bigsby Moore, executive director of Voices for Children in Nebraska, said she hopes lawmakers will see that there are new opportunities through technology to protect child witnesses.

“It's vital to the safety and well-being of child victims to be able to use alternative methods such as videotaping and live webcasting,” she said. “Child victims have been traumatized in ways we can't even think of. We have to treat child victims differently.”

Mangrum said every state in the country is having the same debate on how to protect child victims without violating a defendant' right to confrontation or due process.

He said Utah now allows previously recorded testimony without the defendant present to be used in lieu of live testimony during a trial as long as the alleged child victim is in the courtroom for cross-examination.

However, Mangrum said the safest approach is still closed-circuit TV. In 1990, the U.S. Supreme Court ruled that it was constitutional for the alleged victim of child sexual abuse to testify via one-way, closed-circuit TV.

In the Sarpy County case, prosecutors had argued that the alleged victim was fearful of Parker and that testifying face-to-face might cause a debilitating relapse of post-traumatic stress.

Sarpy County District Judge David Arterburn allowed the screen, saying that its use would be less disruptive than putting the girl on closed-circuit television.

The partition prevented Parker and the then-11-year-old girl from seeing each other while she testified.

The girl testified that Parker assaulted her in the summer of 2003 when she was 7. He was visiting her family.

She said Parker entered her bedroom, pulled her “101 Dalmatians” pajama bottoms to her ankles and penetrated her with his finger and penis as she pretended to sleep.

Parker was sentenced to 10 to 16 years in prison.

Last year, the Nebraska Supreme Court granted Parker a new trial on the basis that the use of the screen violated his right to a fair trial. The unanimous ruling called the office-like partition an “obvious and peculiar departure” from common courtroom practice and a “dramatic reminder” that Parker was the accused.

Sarpy County Attorney Lee Polikov said he thought the screen was a well-developed plan.

“We did what we thought was right, but the Supreme Court didn't like it,” Polikov said.

In future cases, testimony will be videotaped or given live via a two-way, closed-circuit camera.

“We have guidance and we are prepared,” he said.

Contact the writer:

444-1336, leia.mendoza@owh.com

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