Sacramento judge wants expert to weigh in on alleged rape victim's competency

04/25/2013 12:00 AM

10/09/2013 7:55 AM

A Sacramento judge may hire an expert along the lines of a speech pathologist or a neurologist to help determine whether an aphasic woman is capable of testifying against a former police officer accused of raping her.

Superior Court Judge Cheryl Chun Meegan said Wednesday she needs the assistance of an expert to assist her in assessing the "cognitive status" of the alleged victim, who has severe speech impairment.

Meegan said the expert also could help her determine the woman's ability to communicate and whether there are accommodations that could be made in court to allow her to testify reliably.

Deputy District Attorney Amy Holliday wants the 78-year-old woman who suffered a stroke in 2009 to testify in a conditional examination against Gary Dale Baker, 49. He was fired Dec. 20 from his job as a Sacramento police officer.

Baker is accused of one count of rape against the woman, three counts of forced oral sex, one of intent to force oral sex, one of sexual battery and one of assault with intent to commit rape.

Baker's attorney, Linda Parisi, is seeking to prevent the woman from testifying against Baker on grounds that the alleged victim cannot communicate effectively or intelligently.

At an April 11 competency hearing in front of Meegan, the woman correctly answered simple questions Holliday posed to her that required one-word responses, such as what is the color of a given pen. She had difficulty with the more conceptual queries Parisi posed, ones that required narrative responses, such as, what does it mean to tell the truth.

The judge had hoped the woman's testimony in the competency hearing would provide her with enough information to rule on whether the alleged victim is capable of testifying.

"However," Meegan said from the bench during a continuation of the hearing Wednesday, "after hearing the testimony of the witness, it became apparent to me that the nature of the disability precluded the court from having as full an understanding of the witness' situation as might be achieved."

Outside the courtroom, Parisi told reporters she thinks the judge has enough information based on the April 11 hearing to rule on the witness's competency.

"At that hearing, I think it became clear the witness is not competent as a result of her medical condition," Parisi said. "She cannot communicate intelligibly."

In court papers filed Monday, Parisi said the alleged victim's medical records showed she had trained with a speech therapist but quit the sessions "because there did not appear to be any improvement in her ability to communicate."

Parisi wrote that the woman's family "continues to have significant problems communicating" with her and that law enforcement officials say her condition "has gotten worse" over time.

"There has been no evidence in the questioning of this witness that suggests that she can understand the questions being asked and provide meaningful answers," Parisi said in the court documents.

The defense lawyer said "there is nothing in the record to suggest that the witness has the ability to understand and appreciate the obligation to tell the truth."

In addition, "there is no reasonable accommodation" the court can provide to help her, Parisi said.

Holliday declined to comment on the case.

In her court papers, the prosecutor said the federal Americans with Disabilities Act and similar California legislation demand that accommodations be made. Holliday also wrote that the state Penal Code specifically requires the court to modify its procedures to make sure alleged sex abuse victims with disabilities can participate in criminal proceedings.

Holliday said the accommodations in place on April 11, such as allowing the prosecutor to type out questions on a computer screen and letting the witness answer in writing, seemed to help.

It was only when Parisi asked open-ended questions that the witness had difficulty, Holliday said in her court papers.

If the woman can't testify, the prosecution would be forced to rely on DNA evidence, medical reports showing a purported sexual attack on the alleged victim and videos of Baker at her house.

Parisi said if the woman can't testify, "I think it seriously impacts the case."

The judge asked both lawyers to provide her with a list of experts who could examine the witness's testimony from the competency hearing, evaluate her medical records and report back to the court on May 31.

Meegan would then decide whether to proceed with the conditional examination sought by the prosecution in which the woman's testimony would be videotaped and then possibly replayed for a jury at trial.

State law allows for such testimony for witnesses who are too sick to attend trial, who would be out of state, who are 65 or older or if their lives are in jeopardy.

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

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