Monday, January 28, 2008

Disproving a Negative

"Lawyers, I suppose, were children once."
Charles Lamb
The criminal justice system holds that the burden of proof during a trial lies with the prosecution, and the onus falls on them to provide sufficient evidence to show beyond a reasonable doubt that the accused is guilty of the alleged crime. Also, the accused is given the presumption of innocence until they have been proven guilty in a fair trial. Although that is the "theory" of criminal proceedings, there are two circumstances which are clearly exceptions to those rules - instances where no crime has in fact occurred. The first is being found with a large sum of cash in ones possession. The assumption is that the cash was accumulated through illegal means, and it is up to the owner to prove otherwise, or forfeit the money to the government. The second exception to these rules occurs in the case of false allegations of child abuse/sexual assault, where there is no physical or corroborating evidence - only the testimony of the alleged victim. Although the theory of the trial states that the prosecution must prove the accused parties guilty, the reality of these cases is that the defendant is placed in the position of being presumed guilty and having to prove their innocence - that no crime has occurred. This is a very difficult, if not impossible situation; exactly how does one go about producing evidence that will refute an imaginary crime? Disproving a negative is a logical impossibility, but it is also the blunt reality of the accused person's predicament.

In an interesting study by Neil Vidmar, a social psychologist at Duke University Law School (1997), a sample of over 800 potential jurors were questioned regarding their ability to maintain a presumption of innocence in cases of child sexual abuse. A full 36% openly admitted that they would be unable to do so for a variety of reasons, often related to personal beliefs or experience. That 36% was calculated before jurors had heard specific details of the alleged crime. Judges with extensive experience in child sex abuse cases believe it is very difficult, and sometimes impossible, to assemble a jury that is able to maintain the presumption of innocence and provide a fair trial for those on trial for child abuse.

In the case of Elizabeth Ramirez and her co-defendants, this difficulty in assembling a non-prejudicial jury was compounded by the fact that the prosecutors at both trials openly attempted to present the women as having a strong proclivity toward sexually abusing little girls because they were lesbians, in spite of the fact that there is no scientifically-based evidence to support that theory. Prosecutorial conduct specifically intended to erode any presumption of innocence of the accused on the part the jury not based in evidence, but rather homophobic fear-mongering, is irresponsible to say the least. It would have been difficult for the four women to get a fair trial under the best of circumstances. There seemed to be little interest in letting justice run it's course, and the prosecutors primary goal seemed to be to demonize the defendants in front of the jury to win the case.

Another factor leading to Elizabeth's conviction was the attitude of her lawyer, Freddie Ruiz, who had never before represented a client in a criminal trial of any description, let alone on the notoriously difficult charges of aggravated sexual assault on a child. Liz was upset that her lawyer failed to produce any defense witnesses. Ruiz told her not to worry because it was up to the prosecution to prove her guilty. Lawyers who have experience representing clients on charges of child sexual abuse are only too aware of the problems of presumption of guilt on the part of the jury members, and agree that the only successful strategy is an extremely aggressive defense, that includes expert witnesses capable of a convincing rebuttal of the prosecution's evidence. Based on experience, defense lawyers usually advise clients, including innocent ones, against going to trial even with a strong case and under favorable circumstances.

The effect of prejudice and ignorance amongst jurors is well documented in criminal trials. Black men accused of raping white women have traditionally been virtually assured of a conviction, even when there was considerable evidence supporting their innocence. This was a central theme in Harper Lee's classic novel "To Kill a Mockingbird". A common racist belief amongst many white Americans has been that black men are unable to control their sexual urges and when a white woman claimed she had been sexually assaulted a jury would almost invariably return a guilty verdict regardless of how questionable her claims might have been, or how strong the defense. Ignorance and preconception on the part of the jury meant that there was a presumption of guilt under those circumstances. The recent rash of convictions overturned by DNA evidence has clearly shown these prejudices against black men wrongfully convicted of violent sexual assaults on white women still persist in the criminal justice system

Texas has the highest rate of DNA exonerations of any State in America. Dallas County alone has now had more cases overturned by DNA than any State, except Illinois and New York. It is obvious that Texas has a very serious problem with wrongful convictions sending innocent people to prison or execution. Outside of the small percentage of cases supported by DNA evidence, there seems to be little will within the Texas criminal justice system to acknowledge the full scope of the problem and take measures to deal with it.

In the case of Elizabeth Ramirez and her co-defendants; in addition to Texas' unacceptably high rate of wrongful convictions, the problems involved in obtaining an impartial jury in child sex abuse cases, prosecutor's intimating to the jury that these women should be presumed guilty of sexual assault on two little girls simply because of their sexual orientation, lawyers who did not bother to provide expert witnesses for their defense, and it becomes obvious that they did not get anything remotely close to a fair trial.

For prosecutor's it was an easy victory, and an opportunity for political grandstanding as they were able to play to the fears and ignorance of a homophobic electorate, all under the noble guise of protecting children.


Vidmar, N. (1997). Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials. Law and Human Behavior. 21(1)


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How do you blog without electricity? I guess the library right?

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