Feb. 15, 2016

“(NYU law professor Rachel) Barkow points to Scalia’s (1990) dissent in Maryland v. Craig, where he railed against the court for permitting ‘a child witness to testify via closed circuit television in a sex abuse case,’ instead of requiring the child to testify live in the courtroom where she would be subjected to cross-examination by the defense.

“The Constitution, Scalia wrote, does not authorize judges to ‘conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings.’ ”

– From “Antonin Scalia’s Other Legacy: He was often a friend of criminal defendants” by Robert Smith at Slate (Feb. 15)

Scalia’s ferocious dissent in Craig in defense of the Sixth Amendment’s “confrontation clause” featured this jugular-seeking missile:

“Because of (the court majority’s) subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries:

“A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State’s child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months, and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, ‘It is really not true, is it, that I – your father (or mother) whom you see before you – did these terrible things?’

“Perhaps that is a procedure today’s society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution….”

Further on, Scalia cited a 1983 prosecution in Jordan, Minn., that may have been first of the “satanic ritual abuse” wave.

“As children continued to be interviewed,” he wrote, “the list of accused citizens grew….There is no doubt that some sexual abuse took place in Jordan, but there is no reason to believe it was as widespread as charged….”

June 8, 2012

“The duty of the prosecutor is to seek justice, not merely to convict.”

– American Bar Association

“The primary responsibility of prosecution is to see that justice is accomplished.”

– National District Attorneys Association

“If you were playing poker, would you be playing with your full hand
showing?”

– Bill Hart, special deputy attorney general, defending his unwillingness
to share evidence with the Little Rascals defense

Aug. 8, 2012

Five reasons the Little Rascals Day Care case has never attracted the attention it deserves:

■ Overshadowed by McMartin case.

■ No racial angle.

■ Remote location.

■ No death penalty.

■ No DNA.

One reason the case has attracted as much attention as it has:

■ “Innocence Lost” on “Frontline.” Thanks again, Ofra Bikel.

Sept. 17, 2012

I don’t doubt that prosecutors asked themselves many questions during the course of the Little Rascals case. “Think it’s gonna rain tomorrow, Nancy?” Or maybe “You want anchovies on yours, Bill?”

On more relevant issues, however, they seem to have been remarkably incurious. For instance….

■ Why did none of the defendants in the state’s biggest sex-abuse case have any history of sex crimes?

■ When sex-abusers of children are almost always men, why were five of the Edenton Seven women?

■ Why was there a complete absence of physical evidence?

■ Why did none of the frequently cited child-porn photographs ever turn up?

■ At a day care where parents came and went often and unpredictably, why did not one adult ever report anything suspicious?

■ Why was every child seen by prosecution therapists determined to have been abused, but none of those seen by out-of-town therapists?

■ When criminal conspiracies almost always collapse at the first offer of a plea deal, why did none of these defendants agree to point a finger at the others?

■ Could it really be just coincidence that these allegations surfaced so soon after a day-care ritual-abuse seminar attended by the Edenton police officer who would lead the investigation?

For prosecutors to have raised such questions, of course, would risk recognizing their career-making case as a colossal sham. Better to stay blindered and to forge ahead….