High Court Tackles Child Abuse Issues : Law: State justices have agreed to decide whether defendants should be given stronger legal protection against charges of molestation.

SAN FRANCISCO — The state Supreme Court, tackling one of the most complex and emotion-charged problems in the criminal justice system, has agreed to decide whether defendants should be given stronger legal protection against charges of child molestation.

The court is reviewing two separate cases that underscore the difficult questions that often arise in such prosecutions, particularly when there is a lack of physical evidence or corroborating testimony and the charges hinge mainly on the word of a young and frightened child.

In the first case, the justices will determine whether to permit a psychologist to testify that a defendant does not show signs of sexual deviance. At issue is whether such testimony should be heard by the jury as evidence of favorable character traits--or be barred because the psychological tests involved are not conclusive indicators of guilt or innocence.

In the second case, the court will decide whether a defendant may be convicted of repeated acts of molestation even when the child is unable to specify the time and place of the alleged crimes. At issue is whether such testimony should be permitted as justifiable in light of a child’s often uncertain concept of time--or prohibited because it may deny the defendant the ability to refute the charges with an alibi.

No one disputes the need to bring such prosecutions where warranted to protect children from the most reprehensible of crimes. And both prosecutors and defense lawyers agree there is a need for new legal guidelines as more such cases arise in court. But they are in sharp conflict over what those guidelines should be.

Prosecutors reject the notion that testimony from children is inherently unreliable and must be viewed as suspect. While allowances must be made for their developmental limitations, these authorities say, children do make credible witnesses--and their testimony should be evaluated on an individual basis, just as with adults.

“Children may not recall detail, but what they do recall tends to be correct,” Vincent J. O’Neill Jr., a Ventura County prosecutor representing the California District Attorneys Assn., said last week. “(They) should not be discriminated against as witnesses.”

On the other side, defense attorneys cite special concerns about wrongful convictions in child molestation cases, pointing out that they can result not only in a shattered reputation but a long prison term. In one recent instance, a Santa Clara County man was sentenced to 330 years in prison for 156 counts of lewd conduct involving his young daughter.

The risk of a miscarriage of justice is heightened by relying on uncorroborated testimony from young children who might be fantasizing or being manipulated by an influential adult, these attorneys say. To dramatize their case, they cite the Salem witchcraft trials of 1692, when the testimony of children was instrumental in 20 executions for sorcery.

“If a defendant is not told the dates of the alleged acts, so he can reconstruct his whereabouts at the time, and cannot get an expert psychologist to testify about his character, what the heck’s he got left?” asks Robert Sheridan, a San Francisco lawyer representing California Attorneys for Criminal Justice. “If you take those rights away and thus insulate a child’s testimony, you have a conviction by accusation.”

The two cases come before the justices at a time of growing concern over the abuse of children. A House select committee two years ago reported that there were 1.9 million cases of suspected abuse recorded in 1985, compared to 1.2 million such reports in 1981.

Charges of child molestation, which in the past only rarely came in the public spotlight, now draw widespread attention--as evidenced in the McMartin Pre-School trial, the longest and costliest criminal proceeding in history that is being deliberated by a Los Angeles jury.

The eventual decisions by the justices are expected to have a broad impact in the California criminal justice system. In the past year and a half, for example, there have been 15 separate appeal court decisions--some of them conflicting--over the question of specific dates and places in charges of molestation.

The dispute over expert testimony arose in a Kern County case involving four people sentenced in 1985 to prison terms of from 14 to 40 years for molesting seven children ages 5 to 8. The cases arose from a wide-ranging investigation into ritualistic abuse and other crimes in the area in which many people identified as suspects were never charged.

Hearing 2 Appeals

The court agreed to hear appeals from two of the defendants--Margie Grafton and Tim Palomo--who staunchly denied guilt and said they were unfairly convicted on the basis of conflicting testimony by children who had been led into making their accusations by overzealous investigators. Two of the alleged victims were young sons of Grafton.

At trial, the defense sought to present testimony from a psychologist who had administered lengthy tests of true and false questions to the defendants and had concluded that neither fit the psychological profile of a child molester.

The trial judge barred the testimony, concluding the defense had failed to show that such a profile had gained general acceptance in the scientific community. And even if the profile were accepted, the judge said, the psychologist could not say for sure that someone who did not fit the profile was not, in fact, a molester.

In oral argument earlier this month, the high court was urged to permit a defendant to present such testimony as a way of proving his good character to a jury that might be overly inclined to convict.

“Child molestation cases are unique in the judicial system . . . and uniquely dangerous because they rely on the testimony of children,” said Sacramento attorney Laurence S. Smith, representing Grafton in the case. “There is a great danger that a miscarriage of justice will occur.”

Michael R. Snedeker, a San Francisco attorney representing Palomo, called the prosecution’s case “extremely weak” but said the accused man was handicapped by being able to present only his own denials as evidence of innocence. Expert psychological testimony should be permitted any time there is a “reasonable possibility” it will assist the jury, he said.

However, state Deputy Atty. Gen. Edgar A. Kerry asked the justices to uphold the ruling barring such testimony, saying that while the tests might be useful for diagnosis and treatment, they are not acceptable as a kind of “lie detector” in a criminal case. There is a danger, he said, that a jury would be overly impressed and misled by what appeared to be a “scientific” test.

“If the test is not accepted in the scientific community for determining whether someone is guilty or innocent, it’s not relevant,” Kerry said.

The state lawyer added that the children who testified against the defendants had been vigorously cross-examined by defense lawyers and had explained that any prior inconsistencies in their stories were attributable to fear and embarrassment. In the end, Kerry noted, the jury believed the children.

In the second case, which has yet to be argued before the court, the justices are reviewing a so-called “resident child-molester” case in which the defendant has lived with or has regular access to a child and is charged with repeated lewd acts.

At issue is whether a defendant’s constitutional rights are violated when the child is unable to provide the time, place and other details of the alleged acts so that the defense can respond to the charges and the jury can distinguish among the separate incidents involved.

A similar issue arose in the McMartin case, where a motion by defense attorneys to dismiss the charges because of lack of specificity was denied by Los Angeles Superior Court Judge William R. Pounders.

The court’s decision on the issue could determine the fate of a new law--recently signed by Gov. George Deukmejian and set to go into effect next year--that seeks to ease the burdens on prosecutors in such cases by creating a new offense for the “continuous sexual abuse” of a child. Under the statute, a person with regular access to a child under 14 for more than three months who commits three or more acts of sexual misconduct can be convicted and sent to prison for up to 16 years. The law is aimed at cases where a child cannot cite specific instances because he or she was in regular contact with the alleged abuser--such as a teacher, baby-sitter or stepparent.

The new statute, however, has drawn fire from civil libertarians. “We feel the law raises serious due process questions and undermines the ability to defend against such charges,” said Francisco Loboca, legislative advocate for the American Civil Liberties Union.

In the case the justices are reviewing, the defendant is Mark Edwin Jones, a former Navy pilot and schoolteacher from San Diego who was convicted of abusing his two adopted sons and two other boys over a four-year period and was sentenced to 15 years in prison. Jones denied the charges and his attorney contended that the boys implicated Jones to cover up the fact that they had engaged in sexual activities among themselves.

A state Court of Appeal overturned seven of the 12 counts against Jones, four of them on grounds the evidence was not specific enough to warrant conviction.

Children’s Testimony

In briefs to the high court, state prosecutors contend it is unfair to demand that young children recall precise dates and other details of repeated incidents. Their inability to provide such specifics should not bar their testimony against defendants like Jones, they say.

The prosecutors argue that a child’s testimony--like that of an adult--should be judged by its consistency, the witness’s demeanor, the possibility of bias and other factors.

The California Attorneys for Criminal Justice and the California Public Defender Assn., backing Jones in the case, cite a wide range of difficult questions that arise when the only witness to an alleged molestation is a young child.

Can the child distinguish fantasy from reality? Is his conscience sufficiently developed so that he can appreciate the moral significance of what he says? Is an “authority figure”--like a police officer or social worker--unfairly influencing the child’s testimony? Is the child not a victim of abuse but instead caught up in a dispute between overly suspicious or vindictive parents?

If a defendant is not given the specifics of the charges, he can only make a general denial, which is likely to be rejected by a jury, the two defense groups argue. At the very least, they say, the high court should require that there be enough detail to provide a “reference point” in the allegations to enable a defendant to challenge the prosecution.