The Child Witness

All weekend long I grumbled, groped and procrastinated. I just can't face what needs doing this week. That's because tomorrow I will cross examine a ten-year-old.

There is nothing in the law more unpleasant or distasteful than that.

I've cross examined professional kidnappers granted immunity by the federal government, drug king pins, folks who trucked, bartered and traded in all manner of evil. But the cross examination that still sears me was that of a nine-year-old child.

The state accused my client of anally raping the girl and her two sisters. The defendant, my client, was their father. The girls were seven, nine and 12 when the assaults took place. My client denied the charges, and so we went to trial. The state saved the youngest girl, ten at the time of trial, for last.

Her father sat at my table, accused of violating her. The state was gentle with this young witness. She spoke softly, but hesitantly. A social worker sat just beyond the bar beaming encouragement. Her testimony did not go well for the state. Crucial things were left only partially said, things which, if said, would certainly have led to a conviction.

"Your witness," were two of the most terrifying words I could have imagined.

I needed to make sure that the omissions in her testimony were locked in. The testimony of her sisters was explosive. A jury would be inclined to give this child the benefit of the doubt. The presumption of innocence goes on holiday when a child takes the stand.

I got up from my chair, stood in the well of the court, and was overcome with how beautiful and complete a person this little girl was. I wanted to adopt her and spare her the courtroom. It seemed obscene to subject her to the scrutiny of strangers, and somehow wrong to do the painstaking work of cross examination.

I survived the ordeal. The witness did not say the things that would have spelled certain doom for my client. Indeed, certain of the charges were thrown out because the state could not prove its claim with the testimony offered. But somehow, it felt like less than victory.

This week I face another ten-year-old and I am weak with fear. A courtroom can be a ferocious place, filled with storm and stress of battles well and truly waged. But there is no warring with a child witness. There cannot be. Who would forgive it?

I am counting the hours until she takes the stand. I know that once this nightmare begins, it must end. Waiting is the hard part.

Comments: (1)

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  • I certainly sympathize/empathize with your current...
    I certainly sympathize/empathize with your current predicament and fully concur with your gut-wrenching, first-hand encounters with child witnesses. A parsing of the words 'empathy' and 'sympathy' appears in the N.Y. Times today:
    http://www.nytimes.com/2010/04/26/us/politics/26memo.html?th&emc=th
    I personally have sat at the defense table facing multiple criminal charges when the state produced a child-witness in 01-502506. This was a six year-old boy who the State claimed had witnessed an alleged incident involving me and my dog. This boy, who was four years old at the time of the incident, testified in Spanish that he (and his younger brother) had witnessed the incident. In addition to this type of testimony being predictably devastating to the Defense, there were two other problems in my cases.
    One, the child was NOT an 'eyewitness' and could not possibly have been an eyewitness because a large maple tree blocked his view from where he was located, thirty or more feet away. This could have been 'discovered' by the State if it had done a proper investigation, which it did not. Neither did the Public Defenders Office visit the scene of the alleged crime and attempt to determine the what, the wherefors, the whys and hows. I repeatedly requested investigators from that office to visit me, and they never did. They refused, conducting their 'investigation' over the phone by making phone calls.
    The young Spanish-speaking boy lied under oath after having been deemed competent by the judge. He must have been coached by the State somehow, or else he was trying to please the lady prosecutor by agreeing with her version of events. (She 'led him on', which is apparently, exceptionally, permissible if you are LADY prosecutor interviewing a child.)
    My trial took an abrupt, and favorable, turn of events when the boy's father took the stand and told a completely different story, contradicting the testimony of his own son. The father did not know what the son's testimony had been. Apparently, the State had failed to coach him [the father] in Spanish, or else he [the father] was just too dumb to lie under oath in an Amerikan court of law.
    At this point, the Dishonorable Judge B. Conway should have thrown out all charges under this information because there was no way, absent physical or other corroborating evidence, that the jury could accurately determine who was telling the truth. One assumes in our culture, that the sympathy/empathy factor goes to the child witness automatically--as Norm points out--and the poor defendant is presumed 'guilty-as-charged',...in violation of the most basic principles of criminal justice in our land. This is a major flaw in the system which the legislatures and the various judicial branches around the country refuse to acknowledge.
    Mr. Pattis is entirely correct here, and it is appropriate that he bring this up at this time on the forum.
    The Defense asked for a mistrial in my cases, which was routinely denied outright without a moment's hesitation. As a result, 40 years of malicious, trumped-up charges under this information went for jury consideration.
    This was one of many criminal acts committed against me by the judiciary of the State of CT--one of about 30 violations of Constitutional and due-process rights in total, outlined by me in my federal civil rights complaint of '05 which was dismissed outright by the Dishonorable Judge Chatigny, now nominated to the 2nd Circuit Court, as we speak. (Please read any of several essays in opposition to Chatigny below.)
    Whenever I get a chance, I recommend the book, No Crueler Tyrannies, by Dorothy Rabinowitz, 2003. For me, this is the definitive book about the dangers of false and/or fanciful testimonies of innocent children which the State uses to its tremendous advantage in order to obtain false convictions in the criminal courts of Amerika.
    Posted on April 26, 2010 at 3:58 am by William Doriss

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