Welcome to my new blog about criminal cases that are trending in the news. Even before an attorney, I was fascinated by the way that high-profile criminal cases play out in the media and blogosphere. As a practicing attorney with five years of experience as a prosecutor, first at the state and then at the federal level, and many more years of experience as a criminal defense attorney, I hope to add insight to the stories that are splashed across the front pages.
This week, the case of Daisy Coleman exploded across the web, ignited by a weekend feature in the Kansas City Star.
Numerous sources have tracked the progress of the case: a brief overview of the contentions of the various parties, the intervention of Anonymous, and the current plans of the state of Montana to reopen and/or review the matter. I am most interested in this case as it relates to the decision of the prosecutor.
Before I go any further, I want to make it absolutely crystal clear that I believe that Daisy Coleman and her friend (who recently voluntarily identified herself to the media as Paige Parkhurst) are victims, whether or not a prosecution ultimately does or should occur. No one should be feeding alcohol to teenagers. No one should take advantage of intoxicated girls. Having sex with someone who lacks the ability to consent is rape. Period. Leaving a drunk girl outside in freezing weather is barbaric. My musing over whether or not the prosecutor's actions were justified or not do not relate in any way to whether or not I think that Daisy was telling the truth or that what happened to her was horrific. I know that, to someone outside the realm of law enforcement, those things might seem impossible to separate. My gut instinct is, of course, if someone does something bad, they should be prosecuted, but my experience as a prosecutor tells me that, sometimes, factors outside of a prosecutor's control make rape prosecutions difficult, if not impossible and that a failed rape prosecution can, in some cases, be far worse than a lack of prosecution.
Insinuations have been made, and speculation is rampant that the Coleman case was dropped because of interference by powerful local families. However, the Nodaway County Prosecutor Robert Rice says that the prosecution was dropped because the victim and her mother refused to cooperate (in some versions of the story, the underage girls invoked the 5th Amendment and refused to make statements- presumably because they were afraid they might be prosecuted for underage drinking).
Whether or not this is true should be easy to determine. Rice claims that the girl/s (it isn't clear to me whether one or both girls allegedly made this invocation) invoked their rights "...right in a deposition under oath." This is significant because depositions are recorded statements. A court reporter, present at the deposition, would have transcribed and attested the statement. Many court reporters also make tape recordings of the interviews so that they may review them later to verify their transcripts.
If, in fact, Daisy and her friend did refuse to make statements under oath, then, in Prosecutor Rice's shoes, I might very well have made the same decision that he did: to drop the rape charges (recall that the endangerment charge was continued for a while after the rape charges were cut loose).
I am assuming that this case would be prosecuted under Montana Statute 45-5-503 "Sexual Intercourse Without Consent." Section 45-5-501 defines, "without consent". The pertinent portion appears to be "mentally defective or incapacitated" (the "under 16" would appear not to qualify where the age difference is less than four years).The prosecutor is required to prove the case beyond a reasonable doubt. He doesn't have just have to prove that Daisy had sex (which I think that everyone accepts as true), or that she was intoxicated (again, I think that this is apparent). He has to prove that Matthew Barnett had sex with Daisy Coleman with the knowledge that she was mentally incapacitated. Keep in mind that "mentally incapacitated" is subjective.
There is some physical evidence in this case. After calming her daughter down with a warm bath (which possibly, inadvertently, destroyed some DNA evidence), Daisy's mother took the girls to the Emergency Room. Per the Kansas City Star story, examination showed that Daisy had an elevated blood alcohol content (backing up her claim that she was intoxicated), and tears around her genitals which suggested recent sexual activity (also, Barnett admitted that sex occurred).
Although those clues are compelling when coupled with the girl's testimony, they aren't that iron clad on their own. Any attorney who has even tried a DWI case will tell you that BAC evidence (and, in particular, how quickly alcohol dissipates from the blood stream) is subject to a wide range of interpretations in the courtroom. The defense might hire an expert to argue that Daisy slammed a bunch of alcohol sometime after sexual intercourse occurred, or that the alcohol didn't absorb into her blood stream (causing impairment) until after the sex. Without Daisy's cooperation, the timeline is very hard to prove.
Also, given that he is contesting the charges, I assume that Barnett is arguing that Daisy was not impaired at the time they had sex or, at least, that he didn't know that she was impaired. Again, without the testimony of the girls (who could have given some idea of how Daisy was acting or when she blacked out), this gets extremely difficult. (NOTE: I am unaware of whether all of the other male witnesses have refused to cooperate and/or what they have said. Obviously, they could provide useful testimony on this issue. If they have something helpful to say, the pendulum swings back toward prosecution).
It doesn't seem unlikely to me that Daisy and her friend might have refused to cooperate (and, possibly, may have misrepresented to their parents whether they wanted to cooperate or not). I do not mean that as a criticism. Rape victims are subjected to incredibly harsh interrogations at incredibly vulnerable times in their lives. Even the people on "their" side (hopefully, the prosecutors) ask prying questions. We need to know the answers to anticipate defenses, but I still feel awful when I have to ask and I can't imagine how bad it feels on the receiving end. Very often victims start to feel that no one believe them, that nothing useful is going to happen anyway and decide to opt out (I can only imagine that feeling intensified given the reports of how Daisy's schoolmates turned against her).
Regardless of what happened in the past, it looks like the victims are cooperating now. Hopefully it is not too late for justice.
EDIT @3:46 PM EST: The Atlantic, attributed this quote to Rice: "They were doing what they wanted to do, and there weren’t any consequences. And it’s reprehensible. But is it criminal? No." I didn't originally pick up on the fact that this was part of the original article (so, I assume, primary attribution comes from their reporter). This quote suggests that Rice's problem was that he didn't perceive the act as rape because it was consensual (as in, "she wanted it" without any reference to her mental capacity). If that is, in fact, his angle, then I disagree with him completely.
EDIT 2 @3:50 PM EST: See also, this quote from the Kansas City Star Article "Rice said charges were dropped for lack of evidence, but he added, declining to go into the specifics, that information brought to his attention regarding what happened "before, during and after" the incident also played a role in his actions."
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