Our protections for the criminally accused are based upon the principle that it is better to release a few of the guilty, than to mistakenly punish some of the innocent.

Thanks for the reminder.

The differing opinions of Mr. Wilde and Mr. James are due to their differing starting points.

Mr. Wilde is concerned that we can't protect the vulnerable when guilty people go free. He starts with a presumption of guilt.

Mr. James on the other hand starts from the presumption of innocence and requires the court and the law to test the evidence before proclaiming guilt.

No one is arguing for the presumption of guilt, or admission of a confession with no corroborating evidence.

What I am arguing for is the examination of how the interest of justice is protected when you have a vulnerable victim of a sex crime. By nature of their disability or vulnerability, there is likely to be a delay in access to a medical exam to produce forensic evidence. It is also highly unlikely that the vulnerable victim-- a person with mental retardation, an elderly person with dementia-- is going to be swearable as a witness.

I am interested in very narrow clarifications of what might be considered corroborating evidence in the case of a person who is extremely vulnerable. For example, in the Simons case in addition to the confession there were taped admissions to the crime which Simons made to third parties. The initial police interrogation and confession was also taped. There were behavioral changes in the victims. Finally, Simons was convicted of sexual assault against two of his co-workers in the same facility demonstrating a patternof sexual deviancy. Those convictions stood primarily because the victims could testify to corroborate his confession. It seems an injustice that given all the facts of the case the inability of a severely disabled person to testify should preclude their access to justice.

I do think this is an issue that is worthy of discussion. I do not think it is an either or proposition, and certainly is not a proposition about how to railroad convictions without due process of law.

This is part of the larger question about how very vulnerable victims access the criminal justice system. 1 in 5 adults with DD in state paid services experienced significant physical, sexual or financial abuse since 2000. These included cases of people being controlled with electric dog collars, being grabbed and twisted by the scrotum, being bound with tape, kicked to the floor and threatened with a knife, being thrown against door jams or burned with cigarettes and being attacked by a moving vehicle. These are crimes, but they were not prosecuted. That needs to change--- and, I concede that involves not just what happens in the court room but also what happens in criminal investigations before the cases even get to court.

There is a serious problem with the philosophy involved in these special needs pleadings, they ignore the fact that those special needs remedies are applied to all and make the false assumption that the State is good.

If you're really in love with the BushCo practices and legislation of the last 7 years this will mean nothing to you, but each and every piece is applicable to ordinary Americans. The Constitutional abortion RICO was sold as a tool against the Mafia, the mafia is one of the smallest uses of it today and you are subject to it. The mere making of an accusation by law enfocement can result in the confiscation of all your property and the virtual impossible bar to recovering it. That is the factual outcome.

When we operate out of fear and supposedly narrow selective motives we make serious mistakes. We set in motion the tools of repression and selective persecution. The bar for imprisonment and other governmental harm to the citizenry was deliberately set high by the Framers for the simple reason that those are the tools of a tyranny. Something they'd had some experience with.

Pat,

In terms of sexuality of persons with DD, I totally agree. This is why as a long time advocate for self-determination, I have strongly urged sex education and recognition of the freedom to choose to express sexuality. Consensual sex is not an assault, is a normal part of the human experience. People with DD are certainly able to, and regularly do, develop relationships with those they care for and express that in a sexual way.

However, manipulating a power relationship to coerce sex between a client and a careggiver. The sex assault statistics are real, and I can not find anyone in the field who believes the statistics I cited include acts of consensual sex. To be certain, I do not believe that consensual sex involving a person with a disability should be considered an assault or rape.

On this topic, did you know people with DD cannot marry those they love without losing access to the benefits that provide needed supports?

Put more people in jail. I tend not to be too comfortable with that goal as an initial response to social problems. A spectacularly ugly situation can too easily trigger a legislative overreaction. That is what we don't want here.

If there is a problem of the magnitude that Sara suggests (20% of the vulnerable receiving state aid/services are abused in some way), then we surely have a problem with supervision. Putting more people in jail is a fairly clumsy first response to that issue. It seems to hardly address the issue of prevention.

When someone starts off with there argument with the statement that we need to change the law to protect "victims of crimes", you are effectively presuming guilt simply because you are presuming a crime occurred. This is the whole argument made by Mr. James, and one which many people seem to miss.

Here's why the law change effectively would presume guilt. These are cases where the only legally sufficient evidence of the crime is a statement/admission/confession made by a person. (I think its safe to conclude that the person making the statement is the suspect.) By assuming without legally sufficient corroborating evidence, that the statement is accurate you are also effectively concluding, without legally sufficient evidence, that the person making the statement is guilty.

And why make a special exception for a certain type of alleged victim? Why would we need to? Aren't courts supposed to measure the reliability of the evidence, not how hard it is to prove certain types of cases? And if someone argues that we are just measuring the reliability of evidence, If a lower standard of corroboration to a statement is acceptable in these cases, then why isn't it acceptable in a theft, or drug case? No, arguing that these cases should be treated differently is to admit that we are lowering the standard of proof for special cases because they are hard to prove in some instances, and so we need have to effectively presume the guilt of the suspect.

Face it. In these cases, the reliability and sufficiency of the admission is the whole ball game.

Hard cases make bad law. These are hard cases. Maybe we do need to look at this situation, but lets not make a bad law in response. And presuming guilt when you presume the crime is bad law.

So the "corroborating evidence" to Simons' confession was...another confession? And evidence that Alzheimer's patients were deteriorating?

No wonder the conviction was overturned.

I don't like the idea of people molesting the disabled, who can't communicate effectively about it afterwards. I like even less the idea of the government (which is presumed to know better) molesting the rights of the accused on the grounds that "we can't just let these scumbuckets just because of a pesky lack of evidence!"

I'll trust giving more power to the cops and the prosecutors the day I can trust those people to always do the right thing.

So the "corroborating evidence" to Simons' confession was...another confession? And evidence that Alzheimer's patients were deteriorating?

No wonder the conviction was overturned.

I don't like the idea of people molesting the disabled, who can't communicate effectively about it afterwards. I like even less the idea of the government (which is presumed to know better) molesting the rights of the accused on the grounds that "we can't just let these scumbuckets just because of a pesky lack of evidence!"

I'll trust giving more power to the cops and the prosecutors the day I can trust those people to always do the right thing.

To be clear, I do not start with the presumption that someone is guilty. I start with the presumption that a person probably doesn't confess to a crime unless it's true. In fact, US jurisprudence has always recognized this in the rule that says that the statements of defendants aren't hearsay. Nor do I oppose a requirement for some corroboration of a confession. There are some deluded souls out there that do falsely confess.

However, even Mr. Simons does not claim that his confession was false, just that it was insufficiently corroborated. That's an important difference. A reasonable law might require some corroboration of the confession, but not the "corpus delicti" rule that hamstrings prosecutions of the vulnerable. The defense could attempt to undermine this by showing that some part of the confession was false. However, this should be a question for the jury, since we let juries decide matters of fact in our system.

In short, I am sympathetic to Mr. James' claim that we should be careful of prosecuting people who are actually innocent. We have a system that allows the defense to show that a confession is false. However, Mr. Simons is assuredly not innocent, and apparently never claimed to be. Absent a claim of innocence on his part, it's a travesty of justice that he's walking free. Legislation is exactly the way to prevent that from happening again.

To reiterate, my views are my own, informed by my years of practice, and not necessarily those of my employers or clients.

Does it make my argument that an arm of the State wants it to be easier to jail the citizenry? I note the Simons case with dismay, I also do not propose to make it easier for the State to jail me because they failed in a hard case. Do your work, not take my rights. The failure of Federal agencies to talk to each other resulted in 9/11 and gthe governement's response was not to take responsibiltiy for their incompetence, it was to snatch American liberties. It is a false choice. The proper response is to do your job better, sir. The citizenry is not the scapegoat of your incompetence.

RE: law enforcement/prosecutorial incomptetence, you say you know this individual is guilty, he is not in jail, the law was clear when you gathered evidence (or didn't) and went to trial. The Court says you failed. You did. Not one citizen did, the State failed. You fix your malfunctions. I've way more than had your kind of garbage of going for fixes on the backs of the citizens.

Rep. Gelser, Mr. Wilde,

I wonder if, in seeking to further protect DD folks, you have considered carefully the most likely outcome of dropping the corpus delicti requirement where there are confessions but no other evidence: easy convictions of other folks who suffer from DDs for alleged criminal behavior against other vulnerable persons.

If there was ever a classic setting where efforts on prevention are far more important than upping retribution, this is it.

Once there is an allegation of abuse against a vulnerable person, our natural sympathy is triggered -- which is fine, but what actually happens then is that caution goes out the window and families (and the justice system) become determined to "find the bad guy" at all costs --- investigators who ask cautiously whether there really is any bad guy at work at all are castigated and any disconfirming evidence is discounted and ignored.

In Oregon, we have the nearby example of the heinous prosecutions in Wenatchee where, literally, "justice" ran amok. There was an entire wave of "satanic panic" cases across the country where the absence of evidence of abuse was used as damning factor (because obviously the devious defendants plotted and schemed to cover up the evidence).

The fact is this: if you get your wish and you eliminate even the small safeguard against prosecutorial overreach (which is often driven by media attention, which often follows from hot stories about abuse of elders/minors/DD folks) the corpus delicti presents, then you will not only get more convictions against bad guys -- you will also convict a few wholly innocent regular folks, but you will convict a LOT of DD folks.

Also, I may have overlooked it, but have either of you respond to the suggestion that all custodial interrogations be videotaped? You both have expressed a commitment to seeing justice done; to me that suggests that you would support requiring that questioning of suspects be recorded throughout. What are your views on this? It would be quite important where an individual with a DD is alleged to have confessed to a crime, for example.

Here's an example of a case where a man said to be "slow" was given a life sentence for a homicide he didn't commit, primarily on the basis of a confession that really was a man who couldn't understand the questions he was being asked. Now that was a case with a dead body, so the corpus delicti requirement was satisfied, but it's easy to imagine the same scenario resulting from an abuse case (the suspect is tricked into "confessing" the abuse, just like this guy was tricked into "confessing" to murder).

http://truthinjustice.org/mccollum.htm

(tapping microphone)

Is this thing on? Rep. Gelser? Mr. Wilde? Hello?