Lies, Damned Lies, and Sex Crimes

If you thought the case from last week was bad, here’s another one that’s worse.

This time, the supposed victim hasn’t stepped forward to admit she lied, so the man she accused of child molestation sits in prison, as he has for seventeen years, and the system seems powerless to stop it.

What happened? The jury never saw medical records in which the girl’s mom told a hospital therapist that her troubled daughter was a “pathological liar and she lives her lies.” The jury never heard about this and other details at trial because the prosecutor didn’t turn over the records. He told the judge there wasn’t anything in there to worry about.

How did it happen? The man was divorced and estranged from the mom, but he’d been in the girl’s life for ten years before that. The girl first reported the abuse three years after the divorce but only after her mom found out that she was dating a 27-year-old heroin-dealing parolee, and they got into a big fight about it. The mom reported the parolee and got him locked up. The girl flew into a rage and attempted suicide several times. It was in that context that she accused him.

But the girl’s story changed throughout the case. Initially, she said that he had touched her inappropriately but denied oral sex or intercourse of any kind. Then she claimed that he had raped her. By the time of trial, her testimony was that her stepfather had routinely raped her for years. Then, after he was convicted, she submitted a victim-impact statement in which she claimed, for the first time, that he had even shared her sexually with others.

The judge was not impressed. She had presided over the trial, and she thought the girl was lying. She asked to see her medical records, but the prosecutor refused. She threatened to throw out his conviction unless she saw the records, and he gave in.

The judge took one look at the girl’s medical records and immediately ordered a new trial. Here’s her written order. You should read it for yourself.

But the prosecutor’s office appealed the judge’s order. They got the conviction reinstated and the case reassigned to another judge, who sentenced the man to seventy years.

The man remains in prison today, serving out a death sentence. His case has cut a tortured path through state and federal appeals.

Someone should intercede.

Mother of Five Gets New Trial on Capital Murder Conviction

Have you heard of Hannah Overton? She’s spent the last seven years serving a sentence of life without the possibility of parole for the murder of her four-year-old, then-soon-to-be-adopted son. But this September, the Texas Court of Criminal Appeals, which is that state’s supreme court for criminal cases, reversed her conviction and sent it back to the office of the district attorney that prosecuted her. At the original trial, the prosecutor argued that Ms. Overton tortured and killed the boy by force-feeding him salt because she couldn’t cope with his behavior. Apparently, the jury didn’t buy that, but it did convict her on an alternative theory of murder “by omission” on the ground that she did not get him medical attention quickly enough when he fell ill.

The case has created quite a stir, and you can find some local, national, and international coverage of it here, here, herehere, and here.

Ms. Overton has maintained her innocence all along, and after her conviction was reversed, she and her defenders hoped that prosecutors would not re-file the case, but they had no such luck. A couple weeks ago, the district attorney announced that his office would retry her on the original capital-murder charge.

In the meantime, family members say they have faith she will finally come home soon. One of them, Lucy Frost, wrote an open letter recently to the Journal of the American Bar Association, and the text of her letter follows below:

“Regarding ‘The Age of Innocents,’ September, page 54:  I have a family member, Hannah Overton, serving life without parole for a crime that I and others know did not occur. The Texas Court of Criminal Appeals overturned the capital conviction on Sept. 17. Now we await decisions on bail and retrial.

All the post-conviction hearings and appeals in her case suggest prosecutorial misconduct, police misconduct and a tunnel-vision investigation, as well as a medical examiner who appears to me to have been squarely on the prosecution team.

I use the qualifiers “suggest” and “appears to me” because she is legally not yet exonerated. I am 100 percent certain she is innocent. This was a tragic, accidental death of a child—not capital murder.

To say that I have lost faith in our criminal justice system would be an understatement. As a citizen, I pray it can be reformed. Because of Hannah’s case, I have come to know and believe many things, including:

  1. A national innocence board is needed—similar to the National Traffic Safety Board—a federal agency that independently investigates every exoneration and wrongful conviction, then trains and advises all parties on how to avoid the errors that led to them.
  2. The death penalty should be abolished. The system is too vulnerable to errors. I have no doubt that innocent people have been executed in this country.
  3. Prosecutors must be better trained, and there must be oversight of this role. There appear to be no checks and balances on them. Absolute power corrupts, absolutely.
  4. An innocent person must get the advice of an attorney immediately, even when they believe there has been no crime committed and they know they are innocent. The authorities are not going to figure out what happened. Sad but true is the fact that innocence is no protection.”

Is Spanking a Crime in California?

The Adrian Peterson story out of Texas may have you wondering.

Well, the short answer is no, but of course, it’s not that simple, and if you go too far in the eyes of the beholder, your spanking can get you charged with child abuse.

The primary California laws against child abuse punish anyone who “willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” Pen. Code § 273d. They also punish anyone who willfully causes or permits a child to suffer unjustifiable physical pain or mental suffering. Id. § 273a. Other, related laws also address child neglect, endangerment, sexual abuse, and emotional abuse, not to mention other, generally-applicable laws like those against assault or battery.

So, to be clear, you can be charged and convicted of child abuse any time you willfully inflict on a child “an injury resulting in a traumatic condition.” It’s definitely worse if your spanking was cruel or inhuman, but it need not be.

A “traumatic condition,” however, is not what it may sound like. Under the law, it can include any wound or bodily injury, however minor or serious. See CALCRIM No. 822. It doesn’t matter that you didn’t intend to leave a mark, only that you intended to deliver the spanking. People v. Atkins (1975) 53 Cal. App. 3d 348, 358.

If you argue that you spanked your child to discipline him, not to abuse him, then the state must prove that you were not disciplining him reasonably, and the court will likely instruct the jury that your spanking was justified if a reasonable person would find that some punishment was necessary under the circumstances and that your spanking was reasonable. People v. Whitehurst (1992) 9 Cal. App. 4th 1045.

The crime is a wobbler, which means it can be charged as a felony or a misdemeanor depending on the facts of the case and your criminal history. A misdemeanor conviction can put you in the county jail for up to one year, while a felony conviction can put you in county jail or state prison for two, four, or six years. Then there are sentencing enhancements. A second felony conviction within ten years, for example, tacks on an extra four years. And each conviction in which a child suffered “great bodily injury” results in a “strike” on your record under California’s three-strikes law.

What about spanking your child with something other than your hand? I’m glad you asked. In 1997, a California state senator posed that very question to the Office of the Attorney General: “Is it unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand?” In response, the Attorney General published a formal opinion concluding that it was not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand, but the punishment must be “necessary and not excessive in relation to the individual circumstances.”

The bottom line is that it’s not a crime in California to spank your child, but it had better be reasonable. That means that the spanking must be necessary (or at least justifiable) and not excessive under the circumstances. In the end, however, what’s reasonable may depend on the opinion of a prosecutor and, ultimately, a jury, not you.

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