Molestation convictions overturned by court; Court of Appeals finds fault in judge's procedure


The state's highest court has wiped away the 1997 child molestation convictions of a Harford County man and ordered a new trial, saying the judge should not have cleared the courtroom for the victim's testimony without first holding a hearing to determine why that might be necessary.

Yesterday's ruling, which occurred after more than a decade of pressure to protect child victims, has the potential to influence hundreds of Maryland child sexual abuse cases. A ruling against the defendant would have made it easier for judges to remove spectators who might be knowledgeable about the case as well as the public, holding a key part of a criminal trial in secret, said Bradford C. Peabody, the assistant public defender who argued the case.

"It potentially influences a lot of cases. Had this case gone the other way, it essentially would have legitimized closing the courtroom whenever the victim is a child in a case of sexual child abuse," Peabody said. "There needs to be more than a general feeling that the courtroom is too intimidating for children."

The Court of Appeals ruled unanimously that before deciding whether to exclude the public from the courtroom for the testimony of a child victim, the trial judge must hold a hearing, however brief, to show why that is necessary. Statements by the prosecutor that the victim is young and uncomfortable explaining what happened are not enough to bar spectators. To do anything else would deprive a defendant of a constitutional right to a public trial.

"The presumption is that the courtroom will be open," said Gary E. Bair, chief of criminal appeals for the state attorney general's office, who argued the case. "It depends on the child's personality and emotional development. They are saying you have to have a finding for every case."

To show that a child would be unable to testify with spectators present, prosecutors might question the child, a therapist and parents in front of the judge.

In the Harford County case, the victim was 14, talking about sexual abuse by her stepfather that occurred when she was 3. The Sun is not naming the defendant, to protect the victim's identity.

Prosecutors asked to clear the courtroom for her testimony. Over defense objections, Circuit Judge Thomas E. Marshall agreed, saying the victim's "privacy and tender age" outweighed the right to a public trial.

The defendant was convicted of three counts of second-degree sexual offense, three counts of third-degree sexual offense and child abuse. He was sentenced to 105 years in prison, with all but 20 years suspended, and is now in prison.

The ruling was upheld by the intermediate appellate court, but overturned on appeal at the state's highest court.

"The adult judiciary system let a child down again," said Gloria Goldfaden, executive director of Prevent Child Abuse Maryland.

She said she would ask two task forces she serves on to recommend legislation allowing closed-circuit television as an option for victims under the age of 18. It is now allowed only for young children.

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