COMFORTING FOUR YEAR OLD CRIME VICTIMS
A retriever/lab mix named Vivian comforted a 4 year old boy as he testified against his aunt in an abuse case in Marin County a few weeks ago. This was the San Francisco Chronicle’s front page story today, with pictures of dog and DA.
Pioneered in Seattle in 2003 by Deputy DA Ellen O’Neil-Stephens, the witness comfort program (using cute, nurturing dogs to support child crime victims) gone viral.
Check out these links:
In the current state of journalism, no story, however touching, is complete without “balance”, which means: Find some contrary comment to report, unless of course, you’re talking about global warming, in which case you can skip that part.
SO…WHAT DOES THE DEFENSE SAY?
The defense has argued (without success) that the comfort dog’s very presence in court sends a signal that something very bad has happened to the child witness. No kidding. Any charge of child abuse that gets to trial is generally an indication that something bad has probably happened to a vulnerable, underage witness. Leave it to my former colleagues to make the obvious sound like rocket science.
It might be more accurate to say, that the presence of a comfort dog with a four year old witness portents that something very bad is about to happen to the defense. I note with interest that that there are reportedly fewer quick deals in cases when comfort dogs are employed to strengthen witness resolve. That outcome is both good and to be expected. Many defense plea bargains are reached in order the “spare the victim” the ordeal of a court appearance (translate – sparing the rigors of cross examination). This sort of plea bargain does avoid a trial but it also reduces the punishment because after all: Why “‘cop a plea’ without getting a ‘reduction’”?
The mythical subset of defendants who graciously plead guilty to spare the victim and to atone for bad conduct by accepting a greater punishment must have been in somebody else’s caseload over the long years of my practice. I can’t remember one.
The quick deal in child abuse cases because of victim reluctance represents a social good only if you take the position (as I do not) that crimes against children in US urban jurisdictions are over-prosecuted and over-punished. Yes, there is a chance of miscarriage in these cases, admittedly a very small chance. But the final check and balance, the ultimate way to prevent of a miscarriage of justice, is the classic fair trial, not a plea bargain-under-duress.
Another defense objection is that allowing dog comfort support for a child witness is an inducement in the nature of an award for testimony; by implication it is (supposedly) in the nature of a bribe. This line of argument has traction only if the doggie comfort is an inducement to lie as opposed to a form of moral support for going public with an accusation.
Child witnesses are frightened by their abusers, often confused and disturbed when crime is a breach of trust by a family member or authority figure. Small children are flat out terrified by the prospect of getting into a courtroom surrounded by adult strangers. The risks attendant a miscarriage of justice in child abuse cases, rare as they are, mostly stem from problematic eyewitness identifications of strangers (when identification is at issue) or witness manipulation by angry spouses.
Comfort dogs encourage a safe space for questioning when an otherwise hysterical witness can be barely be made to understand questions let alone provide considered answers. In my courtroom experience, the task of ferreting out errors and misstatements by kids in a trial stetting requires the defense attorney to be gentle, to earn trust and to have conducted a careful and thorough factual investigation before ever asking the first question. A reassured child helps, does not hinder the search for the truth.
I know…I know…I’ve just used the dreaded “T” word here. At their most noble, defense lawyers are primarily about eliciting truth, unlocking mercy and checking prosecution overreaching, that never-ending task of keeping the other side honest and fair. The other image of defense lawyer is more cynical – lawyers for whom the game is about winning or – if not – inflicting such damage that the next encounter will result in a favorable plea bargain. Both operate in the real world.
In my own experience, the task of cross examining a vulnerable child witness is wrenchingly difficult (often requiring therapeutic decompression at a pub), but it remains part of the general assignment, to defend the poor with the same vigor as a hired gun defends the rich. Just as the Vatican assigns a pre-beatification “Satan’s advocate” to expose the weakness in candidate for sainthood, the defense is tasked to do the same for all prosecution cases whatever the ultimate merits.
Should four year old abuse victims be denied their comfort dogs? Hell no. My advice to my former colleagues of the defense: I know it’s tough. So apply for your own dog.
Jay B Gaskill
The author is the former Alameda County (CA) Public Defender