WASHINGTON, D.C. – Whip marks that a preschool teacher spotted on a 3-year-old’s face in 2010 triggered a criminal case in Cuyahoga County that has made its way to the U.S. Supreme Court — litigation that could set precedents for how prosecutors can use child-abuse reports filed by teachers.
The case set for March 1 arguments will decide whether statements children make to teachers and day-care workers can be used as evidence in abuse trials where the child can’t testify.
“Child abusers in this case are saying that where you can’t bring a child into court to testify, nothing the child has said can be considered as evidence, and that’s absurd,” says Assistant Cuyahoga County Prosecutor Matthew Meyer, who will deliver the county’s arguments before the U.S. Supreme Court.
The Cleveland case began after teachers at William Patrick Day School questioned the boy about the whip marks on his face and back. He told them his mother’s boyfriend, 27-year-old Darius Clark, whom the child called “Dee Dee,” caused the injuries. They gave that information to law enforcement authorities.
A Cuyahoga County Common Pleas jury sentenced Clark to 28 years in prison for beating the boy and his younger sister, who had two black eyes and burns on her chest, face, arm and legs. Although the boy wasn’t found competent to testify at Clark’s trial, the court let the teachers testify about the boy’s statements.
An appeals court ruled that wasn’t proper. It overturned Clark’s conviction and ordered a retrial. It said accepting the testimony from teachers about the boy’s claims denied Clark’s constitutional right to confront his real accuser, the boy. That decision sprung Clark from prison in February 2012.
“We are aware of the sensitive nature of this case and any case concerning victims of child abuse,” said the 8th District Court of Appeals decision. “The injuries to these children are reprehensible, and the perpetrator deserves punishment. Notwithstanding, we must recognize and ensure “the Sixth Amendment’s guarantee that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.'”
Ohio’s Supreme Court upheld that decision, writing “the trial court declared [the boy] incompetent to testify at the time of trial, yet it permitted testimony about statements this incompetent three-and-a-half-year-old child made to his teachers six months earlier.”
The lower court decisions were based on a 2004 Supreme Court precedent that “testimonial” statements, such as those given to police investigators, aren’t admissible in trials if the defendant can’t confront and cross-examine the accuser. The lower courts equated teachers with law enforcement officers because teachers are legally required to report suspected child abuse to authorities.
The U.S. Supreme Court has agreed to review whether teachers’ obligation to report child abuse makes them law enforcement agents under the “confrontation clause,” and whether narratives they get from students amount to “testimonial” statements that prosecutors can’t use unless the defendant can cross-examine the child.
Cuyahoga County prosecutors say prior courts misinterpreted the Constitution. Meyer contends that if the earlier decisions stand, “child abusers throughout the country could be off the hook” because it will be hard to prosecute people who harm small children with no witnesses apart from those children.
“There is a world of difference between what day-care workers are doing in protecting children and what police are doing when they respond to crime,” says Meyer. “The Supreme Court of Ohio’s ruling denies a voice to some of the most vulnerable victims that we deal with.”
The U.S. Solicitor General and attorneys general for 42 states have filed legal papers to support the prosecutors’ stance. A legal brief filed by the states observes that in 2012, nearly 27 percent of child-abuse victims were younger than 3 years old and 20 percent were between ages 3 and 5.
“When a young child is unable to testify regarding physical or sexual abuse, the testimony of a trusted care provider may offer the only means of allowing the child’s voice to be heard at trial,” said a brief filed by the attorneys general.
Lawyers for Clark at the Cuyahoga County Public Defender’s office and Stanford Law School’s Supreme Court Litigation Clinic say the lower court decisions were correct.
“Teachers can undertake to elicit accusations identifying perpetrators of crime, thus generating statements that juries would perceive as substitutes for live testimony,” says a legal brief for Clark. “And children, just like adults, can make such accusations – realizing that they allege wrongful behavior – that function as perfect replacements for courtroom analogues.”
Clark’s lawyers also say it’s unfair for Ohio to block court testimony from small children, arguing that “if out-of-court interviews with victims … are reliable enough to be admissible and to sustain convictions, defendants should not be simultaneously prevented from having any opportunity whatsoever to question their accusers.”
“Allowing states to use school interviews in lieu of live testimony would not only undermine the truth-seeking goal of trial; it would provide a roadmap for states wishing systematically to evade the adversarial process in child abuse cases,” says a brief for Clark.
Organizations like the Innocence Network, an organization dedicated to preventing wrongful convictions, have filed legal papers to support Clark’s stance.
“Statements by child witnesses present particular reliability risks due to children’s susceptibility to particular modes of questioning, suggestion, and coaching,” says a brief from the organization. “The unreliability of child-witness testimony is established not only by an extensive body of research but also by numerous wrongful convictions that were secured on the basis of child-witness testimony that subsequently proved untrue.”
Although Clark left prison when his child-abuse conviction was overturned, he’s back in jail again after being charged with the September assault of a 17-year-old nursing-home worker at the Broadway Care Center in Maple Heights. Prosecutors say the nursing-home worker he attacked was having a dispute with a girlfriend of Clark’s, who also worked in the nursing home. Clark has pleaded not guilty to the new charges.
A pretrial hearing in Clark’s latest case is scheduled for March 10.