Officer's defense lawyer seeks psychiatric exam of assault victim who had a stroke

04/11/2013 12:00 AM

10/09/2013 7:55 AM

The defense lawyer for the former Sacramento police officer accused of raping an elderly woman is asking a judge to order a psychiatric evaluation of the woman.

Sacramento Superior Court Judge Cheryl Chun Meegan on Wednesday scheduled a hearing for today in which the alleged victim will testify, but only for the limited purpose of assessing the competency of the woman – now 78 – who suffered a stroke in 2009 and has since been severely restricted in her ability to speak.

Defense attorney Linda Parisi, who is representing the accused ex-officer, Gary Dale Baker, said in court papers that the alleged victim "has given an incomprehensible version of events, is on medication, may have difficulty perceiving reality and may not be able to communicate effectively."

"It's a question if the witness is competent to testify or not," Parisi said in an interview outside court. "If the witness is not competent, they can't testify."

Deputy District Attorney Amy Holliday is opposing the motion for the forced evaluation. Holliday, who personally interviewed the woman in late February, said in court papers the alleged victim can get around on her own and take care of herself.

"In the past, she has been able to provide information regarding these crimes to police officers, detectives and medical professionals," Holliday wrote. "She also participated in two evidentiary examinations. She also has personal knowledge of the subject and is able to express herself regarding the matter before the court."

Holliday declined to be interviewed about the case.

Baker, 49, who is free on $1 million bail, was arrested Dec. 20 by Sacramento police. He faces one count of rape, three of forced oral sex, one of intent to force oral sex, one of sexual battery and one of assault with intent to commit rape.

Authorities say the charges result from three contacts Baker had with the woman in her residence on Nov. 24, 2010, last Sept. 20 and finally on Dec. 18 – after her family set up a surveillance camera that investigators say recorded Baker that day showing up at her house.

At Baker's third court appearance in January, Holliday obtained a court order for a conditional examination of the woman. Such examinations can be set up to take testimony from witnesses who are ill, who are over 65, who are about to leave the state or whose lives may be in jeopardy.

The alleged victim suffers from "moderately severe receptive and expressive aphasia," as a result of her stroke, according to Holliday's court papers. Aphasia is a brain dysfunction brought on by stroke or other sorts of trauma that restricts the ability to speak, read or write.

It's not clear what impact the absence of the woman's testimony would have on Baker's case. She would, of course, be the most significant trial witness. But Sacramento police say they have a virtual DNA match between Baker's genetic profile and fluids taken from the woman's clothing at the time of the alleged assault in November 2010. Physical examinations taken after two of her purported contacts with Baker showed evidence of injuries resulting from a sexual assault, according to police reports.

The woman's conditional examination had been scheduled for Tuesday, but it was delayed while Judge Meegan sorted through a defense motion to further continue it until after a psychiatric examination of the witness.

On Wednesday, Meegan first denied the motion to continue the examination, then scheduled the hearing for today's testimony. She said the "limited examination" of the alleged victim will be "solely on the purpose to assist the court in making a determination regarding her competency."

The judge said she probably won't make a determination right away on whether the woman is competent to testify, "unless it is so obvious one way or the other."

If it's not, Meegan said she will allow Parisi and Holliday to submit written briefs that will include material "from the existing medical records" on the woman – already filed under seal – before the judge makes a ruling on whether to order the psychiatric evaluation.

California's Evidence Code says potential witnesses can be disqualified from testifying only if they can't express themselves to the point where they can be understood, or if they can't grasp the concept that it's their duty to tell the truth.

Case law set down by the California Supreme Court gives judges discretion to order psychiatric tests only for the purpose of a witness's competency.

In a key 1980 ruling, the state high court deferred to federal court decisions holding that "the power to condition a witness's testimony on submission to a psychiatric evaluation should be used sparingly."

McGeorge School of Law professor John Myers said he has "not seen more than five" instances out of "tens of thousands" of cases he has reviewed where judges have granted attorneys' requests for psychiatric evaluations to determine a witness's competency.

"It's not for a psychiatrist to judge," Myers said.

Call The Bee's Andy Furillo, (916) 321-1141. Follow him on Twitter @andyfurillo.

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