Saturday, February 9, 2008

Expert Testimony

"I'm going to show you what comes out of Nancy Kellogg, prosecution witness, testifies for them repeatedly, repeatedly, repeatedly. I'm going to show you that she can turn anything -- anything into sexual abuse. God, if you have a C grade and you drop from an A to a C .... that could be child abuse. That's how ridiculous. I'll show you through vicious cross-examination of her what this case is about."
Freddie Ruiz - Elizabeth's Defense Lawyer

At Elizabeth Ramirez' trial, and the trial of the other three women, no expert witnesses were called to testify for the defense. The only expert witness called by the prosecution was Dr. Nancy Kellogg, a pediatrician who had examined the girls on September 28, 1994, approximately 8 weeks after the alleged incidents. As Freddie Ruiz pointed out in his opening statement at Liz' trial Dr. Kellogg testifies as a prosecution witness on a regular basis. She was the medical director of the Alamo Children's Advocacy Center. Dr. Kellogg is what is referred to in legal circles as a "child saver", for whom the business of providing favorable expert testimony for the prosecution is a lucrative source of income. Questions have been raised in other trials regarding the quality and objectivity of Dr. Kellogg's testimony.

At Elizabeth's trial Dr. Kellogg was fully prepared to testify this was a case of cult-related or Satanic-related sexual abuse as she concluded in her written report. It was only a written objection to the Judge that prevented her testifying as such in front of the jury.

Dr. Kellogg took a "history" from the two girls that was in fact nothing more than their story of the alleged incident. The version they told Dr. Kellogg differed on several key factors from what they had told the outcry witness, their father, in the police report and at the trials. Based on their demeanor, which Dr. Kellogg described as "guileless", she accepted their story at face value and testified to the jury that she found them very believable. Although Dr. Kellogg specifically names Elizabeth and the other women in her report, she made absolutely no effort to contact them to verify this information. By doing so she has in fact made a diagnosis on someone she has never seen.

The point of contention focused on during cross-examination by Freddie Ruiz was Dr. Kellogg's claim of finding a "scar" that was 2-3 millimeters in length at the 3 o'clock position on V.L.'s hymen. Kellogg claimed this was evidence of penetration, although she could not date the time that the alleged scar was formed, or the object that might have created it. Outside of those with scientific training or some aspects of the military, most Americans are completely unfamiliar with the metric system. Describing a scar as being 2 to 3 millimeters would have little or no meaning. To give that description a frame of reference using everyday objects; a quarter has a thickness of 2mm. and a pencil lead 3mm. This was a very small scar Kellogg claimed to have seen.

What no one bothered to question was whether the scar in fact actually existed. Dr. Kellogg claimed she took photos of the examination using a colposcope, but when requested, failed to produce copies of those photos for a defense' medical expert to verify her findings. It is not uncommon for medical professionals to disagree over a diagnosis such as this one. There have also been serious disagreements with respect to exactly what constitutes normal anatomy in prepubertal children, and what is indicative of sexual abuse. There are also questions as to whether a pediatrician is the most appropriately trained medical professional to make this type of diagnosis. A pathologist would be considered better trained for this type of analysis. Yet Liz' defense lawyer did not bother to hire a medical expert of any description to contest Dr. Kellogg's testimony. Dr. Kellogg herself must have had some doubts about the "scar" she claims to have seen, as during the actual examination she describes it as an "irregular white area" and only on the final page of her report does this finding morph into a "hymenal scar, consistent with vaginal penetration".

Another aspect of Dr. Kellogg's medical testimony that was not revealed at Liz' trial was the fact that Javier Limon, the girls father, had brought them to the Alamo Children's Advocacy Centre several years previously, claiming that they had been sexually molested by a 10-year-old boy while living with their mother in Colorado. He demanded that the girls be examined by a doctor for physical evidence. The doctor who examined the girls found no evidence of sexual abuse. Javier had previously claimed that another member of the boy's family had sexually abused the girls while trying to get custody of them from their mother. He backed down on that claim when vigorously challenged by family members to provide evidence for those claims.

The prosecution had a copy of the medical report from the first examination of the girls, but this was never introduced at Liz' trial. This evidence could have established several things. First, that the girls knew what sexual abuse was, and that they may have been sexually abused previously. Secondly, it could have established to the jury that the girl's father had a history of making unsubstantiated claims of sexual abuse against his daughter's when he had a dispute with someone. Prosecutor Phillip A. Kazen Jr. claimed that the report of the first claim of sexual abuse was in the file of discovery materials, but that "Freddie missed it". Defense lawyer Ruiz claims the report was not in the file. Regardless, this was information that could have discredited Dr. Kellogg's testimony, and had a significant impact on the outcome of Elizabeth's trial. Had the case been properly investigated, and had the appropriate expert witnesses testified on Liz' behalf as part of a vigorous defense, she may well have been found not guilty. Instead of providing these resources Freddie Ruiz told Liz' not to worry because the onus was on the prosecution to prove that she was guilty, and he relied on his ability to effectively discredit witnesses through cross-examination - despite the fact he had no experience in criminal trials.

It is profoundly sad to think that Liz may be spending 37 and-a-half years in prison because the cost of hiring expert witnesses and an investigator cut into someone's profit margin.

Monday, February 4, 2008

A Huge Liability

Elizabeth Ramirez was convicted in February of 1997, and sentenced to 37 and a half years. She becomes parole eligible in 2015 - the halfway point of her sentence. The other three women were convicted on Valentine's Day 1998, and sentenced to 15 years incarceration, but remained out on appeal until the summer of 2000. Those three recently passed the halfway point of their sentences, and became parole-eligible. All three have come before the Parole Board over the last while (Cassandra Rivera in November and Kristie Mayhugh just last month). As from the day the accusations first surfaced in 1994, all three maintained their claims of innocence at their respective parole hearings. They are fully aware that in the eyes of Texas Pardons and Parole a claim of innocence is considered failure to accept responsibility for their crimes, that they will not be granted parole, and will serve their full sentences. They effectively now hold the keys to their prison cells, all they would have to do is "confess" to the crimes and go through a sex offender treatment program and they would likely be granted parole. They will be forced to register as sex offenders regardless of whether they parole or serve their full sentences. At this point in time maintaining a claim of innocence has absolutely no strategic advantage - in fact it becomes a huge liability. The fact that they are willing to spend another 7-plus years in prison when they could be home with their families and children makes their claims of innocence that much more compelling. They are not willing to compromise Truth one iota. The truth is, those who are wrongfully convicted and maintain their innocence are doubly punished relative to the guilty.

All four of these women have maintained their innocence from the outset. They all passed a lie detector test and none had any drug or alcohol problems, or criminal record. Women who sexually assault young children are very rare, and tend to be seriously mentally ill or have a host of other problems. An extensive search failed to find another verified instance of a group sexual assault by adult females on children. The fact that they were lesbians and therefore predisposed to sexually assaulting little girls, although categorically false, was blatantly promoted to the juries at their respective trials. The simple fact is, there are holes in this case you could drive a truck through, and as claims of innocence go, theirs is very believable. There have been significant doubts about this case from the beginning, and the credibility of their claims only increase with the passage of time.

Elizabeth Ramirez also maintains her innocence of these crimes and will do so at her parole hearing in 2015. She is fully prepared to serve her full sentence which expires in 2034 rather than compromise the truth.