The ‘other side’ of sexual charges

5-8-2011 Georgia:

Public defender says he has to prove innocence

Mike McCarthy knows he faces a tough time in court when juries learn the case they’re going to hear involves alleged sexual abuse, especially of children.

“It concerns me with these kind of cases,” said McCarthy, the lead public defender for the Conasauga Judicial Circuit that includes Whitfield and Murray counties. “I can’t think of any other case from the defense side where you go in looking at the prospective jurors and as soon as the charges are read the ‘presumption of innocence’ and ‘guilty beyond a reasonable doubt’ — standard rules of law — go right out the window. You can see it in their eyes.”

McCarthy said “anger” and “predetermination” are the emotional obstacles he and his staff of public defenders most often encounter from jurors.

“There are other cases where you feel like you’ll get a fairer knock, but people feel more strongly about this issue, more than anything else,” he added.

McCarthy said he did not really want to get into a “point-counterpoint” debate in the press with District Attorney Kermit McManus, who detailed in an April 6 story in The Daily Citizen how the prosecution decides whether to move forward in cases of alleged criminal sexual activity toward children. McManus explained how a “team review” of sexual cases works. The review includes social services representatives, law enforcement personnel and court officers.

But McCarthy said there are other aspects to sexual abuse cases the public needs to know about. He said they include the unfairness of mandatory sentencing, the sex offender registry and the stigma that comes when a person’s name is published in a sexual allegations case — even when there’s an acquittal — that make sex crime cases so difficult to handle.

Fair sentencing?

Sentencing in sex cases is one area where McCarthy believes changes need to be made. Currently, “mandatory minimums” approved by the Georgia General Assembly in recent years dictate sentencing and tie judges’ hands and give more power to the prosecution, he said.

He mentioned a case that involved an 18-year-old male and a 15-year-old girl.

“They were at a local teen establishment, and it was a guy-meets-girl thing,” McCarthy detailed. “He thought she was 16 but she was 15. They start to make out and he’s got his hands under her clothes and they were caught by the owner. But there was no ‘crying out’ (for help) on her part.”

McCarthy said the responding police officer charged the 18-year-old with misdemeanor child molestation because he determined his conduct to be “immoral and indecent, possibly because of it happening in a public area, but a dark area.”

But he said the prosecution added an aggravated sexual battery charge, a felony, even though McCarthy said the police officer told him he didn’t agree with it.

“He was assigned to us, and this boy has a terrible choice. He can plead guilty to the child molestation charge — and the (mandatory) 25 years to life sentence (on the felony charge) will be dismissed — but he’ll get 12 months probation, be able to get ‘first offender’ status and be on the sexual offender registry for 12 months,” McCarthy explained. “Or, he can go to trial on the aggravated sexual battery charge, which means she couldn’t legally consent because of her age. The jury is not allowed to know of the minimum 25 years (of) mandatory prison time, probation for the rest of his life and perpetually being on the sex offender (registry).

“That’s one heck of a decision for a young kid to make.”

McCarthy said considering the options he had to suggest the young man plead guilty to the child molestation charge.

“I would have had a terrible time trying to sleep knowing that kid was going to prison for 25 years,” he said. “When you add a count like that, it makes people plead (guilty) ... I don’t think this was what the Legislature had in mind. You take discretion away from the judges and give it to the prosecutor. You let the prosecutor determine what kind of sentencing you’re going to have.”

After reviewing the case, District Attorney Kermit McManus gave a different account of what happened.

“The basic facts are that when the skating rink manager found them the girl had her pants down around her ankles, her panties are down and he’s (aroused),” McManus recounted. “When questioned, the girl said he penetrated her with his finger, and to us the appropriate charge is not just child molestation but aggravated sexual battery. Since 2006, child molestation has had a ‘Romeo and Juliet’ aspect to it, but aggravated sexual battery does not. We indict cases that are supported by the evidence.”

McManus said the defendant “freely and voluntarily” entered the plea.

He said charging decisions are “a whole separate issue” and added, “It’s a problem.”

“Sentencing structures for some crimes are draconian,” said McManus, “but that’s what the Legislature gave us.”

Not surprisingly, McCarthy is opposed to mandatory sentencing.

“If one year is the minimum and 30 (years) is the max, I want the judge to be able to compare that case with other cases,” he said. “Otherwise, I don’t think that’s justice.”

‘No grading’ on registry

McCarthy said another area of concern is the sex offender registry, where the name and photo of a teenage boy caught “fooling around” with his girlfriend can be placed alongside that of a convicted pedophile.

“There’s no grading,” McCarthy said. “You’re either on it or you’re not. And for that young guy it’s looked at unfavorably by potential employers.”

He said the “failure to register” aspect of being on the registry is unreasonable.

“There’s so many things to trip you up, and you can get (from) one to 30 years for failing to register or failing to register properly,” he began. “You have to check in within 72 hours of your birthday every year, whether you’re on probation or not.”

McCarthy did say those convicted of sexual crimes who get “first offender” status have to register as long as they’re serving their sentence, but can get off the list with successful completion of their probation.

The stigma of being accused

While McCarthy said facilities like the GreenHouse are certainly needed, he believes training for those who conduct interviews “should be the best.”

“To me the term ‘forensic’ means science, and I don’t think ‘forensic interviews’ are science,” he said. “It’s frightening to me how little it takes to convict someone of child molestation. If Tonya Craft (who was acquitted in a Catoosa County case of alleged child sexual abuse last year) didn’t have the resources that she did, she’d be serving a long prison sentence right now. I don’t want someone to get convicted just for the sake of a conviction, and not caring whether they’re guilty or not.”

McManus said contrary to some people’s perception, “We’re not making cases up to prosecute.”

“We go into analysis of every single case — especially at team review — to see if there is a fabrication,” he explained. “We look at ways not to prosecute. I’m not saying we’re abdicating our responsibility, but we have to convince ourselves (we can move forward). We have to prove (our case) beyond a reasonable doubt, but we also have to disprove the defense’s case.”

McCarthy said in the public’s mind, even if someone is acquitted of a sexual-related charge, that person may still be guilty.

“How do you get your name back?” he asked. “If you went to trial for child molestation and if the jury was to acquit, there would still be whispers — ‘maybe he got off on a technicality.’ I don’t know if you can ever completely clear your name. How can you get back to where you were before the accusations were made against you?

“Let’s don’t let zeal get in the way of constitutional rights — no one needs to be in prison for a crime they didn’t commit.” ..Source..