Friday, April 6, 2012

COTWA got it wrong: prosecutor Sue Baur was right not to prosecute rape accuser who recanted

COTWA has obtained information from Cowlitz County, Washington prosecutor Sue Baur regarding this post, where we stated that Ms. Baur had decided not to prosecute a woman who admitted that she lied about her father raping her when she was 11-years-old. The woman's accusation put her father behind bars for nine years.
The news reports distorted what happened, and COTWA repeated the distortion. Ms. Baur not only acted properly, her conduct was exemplary. 

The reporting of this case purposefully gave the impression that there had been a determination that the 2001 allegations were false.  In fact, there has been no adjudication that the girl lied at the original trial, or that her recantation was more reliable than her original testimony.  A judge simply ordered that, in light of the recantation, the father was deserving of a new trial.  
Ms. Baur, to her credit, decided that she would not retry the father because she felt that a jury would not be able to figure out what happened, much less find him guilty verdict beyond a reasonable doubt. She properly dismissed the case and released the father.  The father has not been found "innocent" by a court, and we may never know the truth about what happened.
Ms. Baur believes that no one should ever, ever go to prison for something he or she did not do, and that "we should always err, if at all on the side of the defendant’s freedom." 
COTWA relies on mainstream news media reports, and in this instance -- as happens all too often -- the reporting left much to be desired. Susan Baur has been unfairly maligned; in fact, she deserves to be applauded.  For what? For doing what too many prosecutors don't do -- her job, fairly, and with justice.
COTWA believes it is important to prosecute persons who make false claims, but no such prosecution should be brought unless the prosecutor is confident, to a moral certainty, of the false accuser's guilt.  Where it is clear that someone lies about rape, to refuse to prosecute undermines public confidence about the way rape claims are handled.  Juries want to punish rapists but are loathe to risk punishing the innocent. Juries will be all the more wary of convicting men of rape, even those who deserve to be convicted, if they believe that prosecutors cavalierly allow accusers to tell rape lies with impunity.
In this instance, Ms. Baur did not undermine public confidence about the way rape claims, or false rape claims, are handled. The news media did.  We were unwitting accomplices in that undermining, and for that we apologize to Ms. Baur.

17 comments:

  1. In reviewing your OP, it seems to me that some of the concerns you raised are legitimate and do not change in light of any new information that there was no determination of guilt for making a false accusation:

    "First, the prosecutor's concern that charging Ms. Kennedy might deter others from reporting their sexual assaults is speculative and unsupported by any evidence of which we are aware."

    Either Sue Baur did say it or she didn't, that she feared prosecution in this case might deter other women from coming forward. And either you are right that there is no evidence that this is a logical outcome of prosecuting Rape Liars, or you aren't. So if this played at all into Baur's reasoning, it certainly warrants closer examination.

    "The absence of any punishment for an apparent crime that caused a man to forfeit his liberty for almost a decade can only encourage similarly motivated persons to make false accusations. According to Dr. Valerie Wright, research analyst at The Sentencing Project: "People who perceive that sanctions are more certain tend to be less likely to engage in criminal activity.""

    Very good. And it still hold true even if Baur may have had other motivations for not prosecuting Cassandra Kennedy.

    " Juries will be all the more wary of convicting men of rape, even those who deserve to be convicted, if they believe that prosecutors cavalierly allow accusers to tell rape lies with impunity."

    Once again correct, and not changed at all in light of any new information AFAICS. Just because Baur decided it was too thorny to be sorted out at this late date - which is something that could work in favor of those who have been accused - doesn't mean this won't make jurors more wary in the future. In fact, it may very well do so.

    Incidentally, since we will never know the full facts of the case now, we won't know if the Prosecution acted wrongly or not.

    Fourth, the victim should have a say in whether the false accuser is prosecuted. The victim in this case did not publicly express an opinion on the subject, and we are wondering if anyone bothered to ask him.

    True in either case, Baur's reasoning notwithstanding.

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  2. I saw a quote in the ABA Journal that I will dig out -- she was misquoted in the news sources we relied on. The points we were making in our original post are valid, but they don't apply to this case.

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  3. Well, I'll be interested in hearing what she did actually say. As I pointed out however, it's not certain that this will change all the points discussed, above. This could still have a negative effect in the long run, and the victim apparently was never asked his opinion. Those probabilities contain plenty of food for thought on their own merits

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  4. Doesn't make any sense.

    The daughter recanted, so clearly she was guilty of lying. She should been prosecuted. There is no other option.

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  5. Jeremiah - One thing too, if the situation were reversed and a male accused of rape wasn't re-investigated 10 years down the line, what would women have to say about that? Idk if I agree or disagree that prosecution was the only option, but I would say that letting bygones be bygones should go both ways.

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  6. While it is certainly commendable for COTWA to accept responsibility for "getting it wrong", I do not think the recent clarifications change much at all.

    I agree with Archivist that Ms. Baur was correct to drop the charges against Mr. Kennedy given the present disposition of the case. However, in the absence of a retrial and/or an inquiry into the reliability of Cassandra Kennedy's recantation, Mr. Kennedy will forever remain in limbo despite being out of prison.

    Regarding Ms. Baur not prosecuting Cassandra Kennedy, I think it goes without saying (at this point) that is the right thing to do. It does not appear any effort has been made yet to pursue the matter of Cassandra's recantation.

    I think the important question presently is not whether Baur will charge Cassandra but will they investigate and make a deteriminaton on the reliability of her recent statements and if her initial claims are false rising to the level of perjury in the 1st degree (Class B felony in WA).

    If Baur intends to drop everything I would disagree that her conduct is exemplary and she would have a lot of explaning to do.

    IMO, the Cowlitz County Prosecuting Attorney's office has an obligation to pursue the matter. If it is determined that Cassandra's recantation is valid, she should be charged, prosecuted, and if convicted; punished in accordance with the law in Washington.

    In response to why she (Baur) was not pursuing charges against Cassandra, Portland Fox affiliate KPTV quoted Baur as saying, "There's many reasons why we're not charging perjury. One of the minor ones is why do I want to prosecute someone who is now trying to correct a wrong? That would have a chilling effect on others coming forward had they lied in the past," said Baur.

    Obviously Ms. Baur, if Cassandra did lie it is wrong and she should be held accountable.

    If Cowlitz County had an unsolved rape from almost ten years ago and a man suddenly walked into the Longview police dept. or Sheriff's office and claimed that he committed the crime, provided information that investigators "believed" only the perpetrator would know, but there was really no other evidence linking him to the crime, what is the likelihood that Ms. Baur would let it lie because the man was now trying to correct a wrong and prosecuting him might have a chilling effect on others from coming forward?

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  7. This kind of action is what puts us above the "other side". You will never see anything of this caliber from Amanda Marcotte,she hasn't the moral fortitude to admit she was wrong.I commend you gentlemen.

    "In response to why she (Baur) was not pursuing charges against Cassandra, Portland Fox affiliate KPTV quoted Baur as saying, "There's many reasons why we're not charging perjury. One of the minor ones is why do I want to prosecute someone who is now trying to correct a wrong? That would have a chilling effect on others coming forward had they lied in the past," said Baur.

    Obviously Ms. Baur, if Cassandra did lie it is wrong and she should be held accountable."

    You're missing something,friend. I don't blame you. It's not what was said, it's what WASN'T said. Only a few years ago,we would be reading about how this might prevent metaphorical rape victims from reporting. Baur is concerned about protecting innocent men. That's where the focus is, based on this quote. This is mind-blowing progress.

    Sue Baur actually sounds like a standup gal.

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  8. Anon@3:09 said, "You're missing something,friend. I don't blame you. It's not what was said, it's what WASN'T said. Only a few years ago,we would be reading about how this might prevent metaphorical rape victims from reporting. Baur is concerned about protecting innocent men. That's where the focus is, based on this quote. This is mind-blowing progress."

    On the contrary anon...If it wasn't said, I'm not missing anything. I'm not sure how this is at all relevant to the matter.

    Moreover, I agreed with archivist that Ms. Baur did the right thing in dropping the charges. But Mr. Kennedy is neither legally or factually innocent in this case because there will be no new trial and it appears there will be no investigation into the daughter's recantation.

    I think Baur did the right thing in dropping the charges resulting in Kennedy's release from prison. However, I do not believe she will be doing the right thing by not pursuing the issue with the daughter.

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  9. """"If Cowlitz County had an unsolved rape from almost ten years ago and a man suddenly walked into the Longview police dept. or Sheriff's office and claimed that he committed the crime, provided information that investigators "believed" only the perpetrator would know, but there was really no other evidence linking him to the crime, what is the likelihood that Ms. Baur would let it lie because the man was now trying to correct a wrong and prosecuting him might have a chilling effect on others from coming forward?"""


    EXACTLY!!

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  10. "The daughter recanted, so clearly she was guilty of lying. She should been prosecuted. There is no other option."


    Just as accusations can be false, so can recantations.

    I'm not saying that is the case here, it's just never EVER proper to presume anything.

    You might also recall the case where the guy, guilted by AA, apologized to a woman for raping her and WAS prosecuted.

    Probably the first -and most definately the last time ever in the recorded history of mankind.

    The BIG GLARING DIFFERENCE in these cases is a man was ROTTING IN PRISON until the woman recanted, and would continue to rot in prison if she didn't recant, as opposed to a rape victim, whose fate, any way it turned out, would be pretty much the same.

    Sending a rapist to prison or not really doesn't alter a person's healing. They have the ablity to heal and move on with their life whether or not "justice" was served.

    Releasing an innocent man from prison, or clearing his good name is obviously a life changing imperative. Punishing a voluntary recantation will only assure innocent men will remain imprisoned.

    If you asked any innocent man imprisoned for most of his life if the price of his freedom was seeing his accuser given immunity, what are the odds of him saying "No, I'd prefer to stay in prison"?

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  11. All due respect to some of our devoted readers, but there are a lot of uninformed opinions being tossed about. A prosecutor is the gatekeeper of justice who should only bring charges, as Prof. Bennett L. Gershman has described it, when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt. To bring charges when there is any less certainty does not fulfill the prosecutor's duty to do justice, but invites miscarriages and the possible conviction of an innocent defendant. COTWA preaches this with respect to persons accused of rape and it is equally true of possible false accusers.

    In this case, the judge is not sure what to make of the recantation, and the prosecutor's decision not to put him and a jury through the ordeal of another trial was the right call. But prosecuting the daughter would not be the right call, any more than prosecuting a man who confesses to a rape that another man was convicted of would be the right call in the absence of other evidence (and, yes, that happens). There are a fair number of people to confess/recant to things that are dubious.

    The prosecutor did the right thing. That's not just my "opinion." That's an application of facts to sound legal principles that COTWA believes in.

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  12. What's the name of the prosecutor who put this man in jail to begin with?

    "A prosecutor is the gatekeeper of justice who should only bring charges.. when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt."

    That is what did NOT happen the first time around, this dereliction of duty is what needs to be punished.

    Of course prosecutors have immunity from prosecution, so they would not be motivated to serve by the standards you put so eloquently.

    (caste system again)

    It just keeps coming,doesn't it?

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  13. I don't know what happened the first time around.

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  14. THIS is what happened:

    The Elimination of Constitutional Rights

    Prosecutors and the child saving industry have convinced the legislature that merely creating hysteria is not enough to insure conviction for those accused. In addition, rights originally created in our constitution to protect the criminal defendants must be eliminated.

    The Rules to Have Changed to Secure Convictions

    All across our nation, state legislatures have supported child advocacy special interest groups. The following illustrates how constitutional rights have been taken away in child sexual assault trials:

    No Right to Confront Your Accuser

    Criminal law codes have been rewritten to where in many cases, the child accuser does not have to appear in court and face the accused. Instead, the state can offer the child’s testimony through a video tape made by agents of the prosecution.

    “Hearsay Evidence”

    Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Tex. Rules. Evid. 803 (2)). In Layman’s terms, “Hearsay” evidence is when a witness testifies about something they do not personally know, but were told by someone else. Hearsay is considered unreliable and is normally inadmissible as evidence against an accused. In child abuse cases however, hearsay evidence is admitted as evidence of guilt. A so called “outcry” witness can testify as to what a child supposedly said to them regarding the alleged abuse.

    “Syndrome Evidence” Is Admissible Against the Accused

    In most states, the prosecution can have an expert witness testify that the child is suffering from “Child Sexual Abuse Accommodation Syndrome”(CSAAS). This psychological “mumble jumble” is an unscientific theory of supposed traits of abused children. The psychologist who came up with this syndrome many years ago has since indicated that this theory is not reliable evidence in a court of law. Prosecutors do not care! This junk science makes its appearance in courtrooms across the country daily.

    With Syndrome Evidence, the State Replaces Its Lack of Real Proof with Speculation

    CSAAS theorizes that because an alleged victim is supposedly demonstrating certain behavioral patterns that he/she must have actually been abused. Unfortunately, a big problem with this and other syndromes is that the character traits offered to show abuse are also common for non-abused children. If the child has been crying, he/she must have been abused. If the child has nightmares, he/she must have been abused. If the child is withdrawn, he/she must have been abused. If the child is outgoing, he/she must have been abused. If the child is happy around the accused, it's because the child enjoyed the abuse. The list of factors goes on forever. But to a jury, when an expert witness is connecting typical childhood behavior with indicators of abuse, the testimony is extremely damaging to the falsely accused.

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  15. Convictions without Physical Evidence

    Our prisons are full of persons who have been convicted of child molestation without any physical evidence ever introduced against them at trial. In other words, the typical evidence in which the state offers to convict a defendant, such as body fluids, blood, semen, hair, DNA, are not introduced at trial to link the accused to a crime.

    Medical nurses and employees whose livelihoods depend upon their contracts with child advocacy centers will give opinions that a child was abused. Failure to give the right opinion will mean the contract is not renewed. These opinions from medical “experts” will say the findings are “consistent with” sexual abuse. Of course, “consistent with” is not a true medical diagnosis. This testimony, as demonstrated by a competent defense attorney will reveal the findings given as “consistent with abuse” are just as “inconsistent with abuse”.

    Prosecutors Secure Convictions by Manipulating the Juries’ Fear of Releasing a Child Molester Back Into the Community.

    Instead of physical and medical evidence, the falsely accused are convicted upon theories, inferences, and speculation. Prosecutors secure convictions by manipulating the juror's fear of releasing a child molester back into the community. This fear will be combined with hearsay, expert witness “syndrome evidence”, misleading medical testimony, and the biased opinions of child advocacy investigators.

    To support this speculation, a biased child protective services caseworker will produce a videotaped interview of the child. This biased interviewer will use leading, suggestive, and coached questions to easily obtain an “admission” from a child. Many times the child does not make a statement that abuse occurred, but merely agrees with the adult authority figure who informs the child of the abuse.

    After an outcry, it is easy to find witnesses who can place the accused in circumstances in which he was alone with the alleged victim.

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  16. Elimination of Constitutional Rights - Paul Stuckle

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  17. "A prosecutor is the gatekeeper of justice who should only bring charges.. when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt."

    I do believe that the operative word some are saying is" "investigation." Nobody disagrees that charges shouldn't be brought in a spurious fashion, but that won't be the case - if the Kennedy daughter is investigated.

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