OCTOBER D87 - Voice For The Defense Online

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against the adult's word. Even before onew8d is spoken, the score card on credihiiityis in favor of the adult and against thechild. The average adult readily assumesthat children tell lies, thus giving a minusto the child and a plus to the adult. If thechild is an adolescent and has willinglyengaged in sexual relations with the defendant,the average adult may view her asthe infamous Lolita," the beguiling femalewho embarks upon the seduction of anolder man. If so, the child's credibilitywould not be weighed as an abused victimhut instead as a blameworthy part of theoffense. Effective prosecution involves notonly understanding the effects of thecriminal justice system on the victim, hutalso involves understanding the lawsdesigned to protect the victims from sexualencounters.1. Susannc M. Sqroi, "Sexual Molestation ofChildren: The Last Frontier in Child Abuse,"Children Today 4 (May-June 1975): 19.2. Leroy G. Schultz, "The Child Sex VictimSocial, Psychological and Legal Perspectives," CitddWelbre (March 1973): 147-48.3. Vntcent DeFrancis, ProtecIing the Child Victit11ef Sex Crimes Committed by Adults (Denver,Colo.: Children's Division, Amencan HumaneAssociation, 1969).4. Ann Burgess, Nicholas Groth, el al., SerualAssault of Clrildren wd Adolesce~~fs. (LexingtonBwks, D. C. Heath and Company. 1978) p. 7.5. Nicholas GmthandJcacan Blmbaur, "Adult SexualOrientation and Altractian to Underaged Perrans,"Archives of Serunl Behavior Vol. 7, No. 3(1978) pg. 180.6. Diognosrle and Statistical Moluol of MemlDisorder (DMS-111). American Psychiatric Asnociation(3rd ed. 1980) A pedophile is a person possessinga psychosexual d~mrder lolomaspedophilia Onemust keep in mind that menlal disorders as well asothwbeliavhr patterns donot classify the indindualbut mslead behavior patterns that an indwidual mayhave. Thus aperson who has the pedophilic behaviorpattern may also have other behavior patterns suchas narcissrsm (a grandiose sense of self importance).The word pedophileas used herein wdlmerely repsent anindlvidual whose "prcdormoate" behavmrpatternis pedophdta.One must also keep in mind when reading aboutbehavior patterns that psychiatric terms and legalterms d~ffcr. DMS-III limits the definition of apedoph~le to an adult who a ten years or more olderthan the prepuberlal child. For adolescents with thedisorder, no preciseage diiference isspecitied. DMS-III at p. 271.7. See note % See also note 4.8. See Nicholas Groth andJeanBirnbaur, "AdultSexual Orientalmn and Auraclion to Underaged Persons",supra at 176.9. See note 4.10. Id.11. Id.12. Sexual Assault of Children and Adolescents,supra at p. 813. Id. at pp. 8-914. Id15. Id.16. Id.#om. (Fan Fmlsco, Calif.: TOW-BassPublishen.1978).18. Serrml A m h of Chrldrm nwd Adolescents,supra ; A. Nccholas Grath and Ann W. Burgme,"Motivational Intent in the Scxual Assault ofChildren," Criminal Justice and Behavior. 4 no. 3[September 1977).19. See note 4 at p. 11.20. See Groth end Burpess, "MotivatianJntent."supra.21. Id. Seedso, David Libai, "The Pmlectionofthe Child Vlctim of Sexual Offense in the CriminalJuaice System" in Reape Victimology ed. Shullz(Springfield. 111. 1975).22. See note 4 at pg. 13.23. See note 4 at pg. 15.24. Diagxoslic atrd Staristical Martun1 of MeentdlDisorder, (DSM-111) 3rd Ed., An~errcanPsychiatricAssociation (1980) pp. 271-272.25. See Labai, "The Pmtection of the Child Victimof Sexual Olfense", srqm a1 p. 311.26. See Musson, Conger, Kagm, ChildDevelopmntnnd Personality; Berlirrer, L. attd Stevem D.,"Advocating for Sexually Abused Children in theCrund Justice System" Serual Abrm of ClrildrwSeiectedRendings, Kempe, Kempe CltildAbuse, TheDeveloping ChAd Series. The infommtionrelatingtochlld development contained herein is supported bythese authorities27. Id.28. Id.29. Id.30. Id.31. See note 3, DeFmnas, "Pmtechng the Child"supra.32. Id.33. Rube* L. Gciser, Hidden Yicriw. The SerrmlAlurseafCltrldrpn. (Boston: Beacon Press, 1979)p. 63.41. Louts Amrtmng, Kin Dddy Goodnrght (NewYark, N.Y.: Hawthorne Bwks, Inc. 1978) pp132.136.New Publicationsby Don AdarnsCriminal Law Bulletin Tracking, by Patricia Rayhurn Right to ConnselArticles1987 23 Cr.L.B. 374, Evidence and1987 23 Cr.L.B. 309, Re Amtomy of Trial Advocacy Workslzop: Admissions of rexas rech ~~~j~~Defense Strategy in An Espionage Case. a Party-Opponent-Adoptive and Represen- ~ r t i ~ l ~by Donna Brown Siers tative; Personal Knowledge 1987 18 Tx.TechL.R. 407, Survey-198723 Cr.L.B. 323, The Speedy-Trial Criminal Law and Procedure, by CharlesDilenma: A Handbook on Reform, by Paul Horcsfon Law Review P. BubanvB. Wice Comments 1987 & Tx.TechL.R. 655, Survey-1987 23 Cr.L.B. 339, Computer- 1987 24 H0u.L.R. 765, Sixth Amend- Prisoners'Rigltts. by Edward F. ShermanAssisted Arrest Processing and Case ment Exclusionary Rule: Stepchild of the 120 VOICE for the Defense / October 1987
Bafson K Kentucky:A New Weapon for the Defenseby Mark mielman and Malinda SeymorePart 1More than a century ago the UnitedStates Supreme Court held that a statedenies a black defendant equal protectionof thelaws when it puts him on trial beforea jury from which members of his ownrace have been purposefully excluded1That principle has never been seriouslyquestioned.* Until recently, however, d efendants faced an almost insurmountableburden in proving this purposeful discrimination.Under Swain v. Alabama3 defendantscould not rely upon the acts of theprosecutor in their case alone. Instead, theywere required to show that "in all cases,in all circumstances, whoever the victim,whoever the defendant, blacks were excludedfrom juries without cause."4The recent case of Butson v. Kentuckysreplaces the difficult evidentiary burden ofSwain and arms the defense counsel witha new weapon against perceived discriminationon the petit jury. The SupremeCourt in adopting Batson followed the leadof state courts which circumvented Swainand protected defendants under the sixthamendment or under state constitution^.^Defendants in these states have benefitedfrom the additional constitutional protections.With the advent of Batson and itsretroactive application,7 Texas defendantsmay now share in these benefits as well.Any new rule causes initial confusion;Texas courts and attorneys are justifiablyuncertain of the scope of Batson. As trialand appellate courts struggle with this newdoctrine, the pmdenl dcfcnse t~llorncy mustbe ~articularlv careful in wicldine " this ncwwApon. ~hiiarticle will attempt to assistdefense counsel by discussing: 1) the preservationof Batson error; 2) the presentationof evidence to meet the criteria ofBafson; 3) the remedies if error is found;and 4) the appeal of a Batson challenge.Finally, we will suggest alternativemethodsof establishing a case of purposehl discriminationunder Bataon.Batson: Forging the SwordIn Swain, the Supreme Court recognizeda fourteenth amendment challenge to discriminatoryjury panels. In practice, however,this theoretical right was effectivelymooted by the difficult threshold showingrequired to demonstrate prosecutorial misconduct.In order to demonstratea "State'spurposeful or deliberate denial to Negroeson account of race of participation as jurorsin the administration ofjusti~e,"~ a defendantwas required to show a systematic exclusionof minorities. Such a showingcould not he made on the basis of the currentcase alone but rather required a demonstrationof a historical pattern ofdiscrimination.Defendants, as a practical matter, werealmost never able to meet this burden. TheLouisiana Supreme Court, for example,reviewed fourteen East Baton RougeParish cases involving the exclusion ofblacks from juries between 1972 and 1979.In seven of these cases, the prosecutor wasthe same man. The prosecutorjustified hispractice of excluding blacks throughperemptory challenges by stating that "IMalinda L. Sevmore is a brjefing aftor- Iney with the ~ifti~isfrict ~ounOfk~~eahin Dallas and an insttucfor in the LegalhsistarttfProgram af El Centro CommunigCollege. She is a graduate of BaylorUniversity School of Law and of RiceUniversity.Mark A. Thielmaa is a research attorneywith the Fiji11 Distrid Court of Appeals inDallas and an inswucfor in the Legal Assistant'sProgram at El Centro CommunityCollege. He graduated from The Universityof Tern School of Law in 1986. Hedid his undergraduate work at TexasChristian University.October 1987 1 VOICE for the Defense! 21
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