Cleveland kidnap case: Will the 3 women have to testify to ordeal?

Ariel Castro, facing 329 criminal counts in connection with the kidnap and abuse of three Cleveland women, is back in court Wednesday. If he contests the charges, the women will need to testify, no matter how difficult that challenge.

By MARK GUARINO | Staff Writer, The Christian Science Monitor

June 11, 2013 at 2:39 pm EDT

The three Cleveland women whom authorities say were kidnapped and suffered physical, sexual, and emotional abuse for about a decade appear destined to recount their experiences in a public courtroom, given that the man charged with the crimes plans to plead not guilty.

A plea deal would have spared the women – Amanda Berry, Gina DeJesus, and Michelle Knight – the often-wrenching ordeal of testifying in public about details of the alleged crimes, which include rape and sexual assault. But Ariel Castro, a former Cleveland bus driver charged with keeping them hostage and inflicting the systemic abuse, is expected to fight the 329 charges authorities leveled against him last week, his lawyer told Reuters Sunday, setting in motion a trial that gives him the right to confront his accusers.

“Any testimony they are going to use at the trial has to be public,” says Michael Benza, a senior instructor of law at Case Western Reserve University in Cleveland. “There isn’t a lot that can be done to prevent it because the defendant enjoys a right to confront the witnesses against him.”

Among the criminal counts Mr. Castro faces are aggravated murder (by causing miscarriages), rape, kidnapping, and sexual assault in connection with the alleged imprisonment of the three women, two of whom were teenagers when they disappeared. The indictments cover August 2002 until February 2007, and prosecutors in Ohio's Cuyahoga County say more are forthcoming. Castro, who is being held on an $8 million bond, will be arraigned on these newest changes Wednesday and is expected to enter a plea. 

A trial judge is also expected to be named Wednesday, starting a process that means the three women will eventually confront Castro in a courtroom, where they are expected to testify that he repeatedly tortured and raped them, kept them isolated in rooms while in chains, and very rarely allowed them to leave the house. A 6-year-old girl discovered in the home is reportedly Ms. Berry’s daughter, conceived after allegedly being raped by Castro.

While the women must testify in public, the court can take steps to diminish their anguish, say legal experts. A judge can clear the courtroom of spectators during testimony, or establish a physical barrier between the women and the public to hide their faces, says Daniel Coyne, a criminal law professor at the Kent College of Law in Chicago who specializes in prosecuting cases of sexual violence.

“There are a variety of ways to accommodate people with some emotional concern about reliving the event through testimony,” Mr. Coyne says. “While we have public courtrooms, some judges may rule that the right and dignity of the victim supersedes the rights of the public.”

A judge also has authority to decide if a fixed pool camera for the media is permissible, and, if so, what accommodations can be made to protect the witnesses' identity. One notable example is the William Kennedy Smith rape trial in 1991 in which the victim’s face was blurred on video.

Given the international attention on the case, Mr. Benza of Case Western Reserve says he expects the presiding judge will rule to have the Castro trial televised, but may dictate certain conditions, such as the angle and location of the camera.

“There is not a way for the court to close [the trial] to the public or the media,” he says.

Trial motions allow attorneys on both sides to establish parameters for victim testimony, determining factors such as the voice level used by attorneys during cross examination to the time of day when the testimony takes place, says Jason Kutulakis, an attorney outside Harrisburg, Pa., who serves on the state’s jury rules committee.

“Confrontation does not necessarily equal intimidation,” he says.

Some courtrooms are exploring the introduction of certain comfort tools into the courtroom to help witnesses testifying about personal trauma cope with recounting their experiences before a room of strangers, not to mention the defendant. One such tool is a service dog, which is commonly used in trials when the witness is a juvenile, but which Mr. Kutulakis says is being employed in some legal circles to aid adult trauma survivors.

“A dog does nothing but sit there and can give a sense of comfort when the victim feels all alone. The victim can actually tell her story to the dog, which can provide them a sense of comfort,” he says.

The three women may have already testified behind closed doors to a grand jury. But it's also possible that a police investigator, not the women themselves, provided an account of their experiences during captivity. Grand jury testimony is secret and kept from the public, so it is not known who testified or even who was present.

In some high-profile kidnapping cases in which the evidence was overwhelming, the accused accepted plea agreements and went directly to prison. A recent example is Phillip Garrido, kidnapper of Jaycee Dugard, who decided to forego a trial and accept a plea deal that sent him to prison for 431 years. Ms. Dugard, who was kidnapped in 1991 at age 11 and held captive in California for 18 years, was spared the need to testify in public. 

The public was allowed access to her grand jury testimony. During Mr. Garrido's sentencing, Dugard elected to send her mother to read her victim’s statement, so never had to face him in court. Before releasing the grand jury transcript, El Dorado County Superior Court Judge Douglas Phimister removed 20 percent of the material that, he said, “would qualify as pornography.”

Kidnapping victim Elizabeth Smart was not spared public testimony. Kidnapped in 2002 in Salt Lake City, she testified of being raped daily after being held captive for nine months by a couple that often forced her to play the role of the man’s wife. Ms. Smart endured the experience, which was televised, but it came at a price: On the third day of testimony, she abruptly left the courtroom with her mother after hearing testimony from a forensic psychiatrist who said her kidnapper, Brian David Mitchell, had chastised Smart for not wanting to have his children.

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