Regardless of the crime, all citizens should be treated with a presumption of innocence when navigating the justice system. That is the way the system is meant to work. However, that principal is often violated and difficult to correct. In a recent case, the defense was able to prove the violation and get a rape conviction reversed. The defendant was intimidated by an officer on the witness stand and made to appear dangerous and guilty.
“Don’t stand so close to me!”
Mr. Gorman-Lykken (G.L.) was convicted of Rape in the Second Degree in Cowlitz County, Washington. G.L. was accused of having intercourse with his girlfriend who was “incapable of giving consent”. G.L. chose to testify, and a corrections officer stood next to him at the witness stand. G.L.’s defense lawyer objected to the officer’s presence next to his client. The corrections officer responded that “If he’s up here, we’re up here.” The trial judge overruled the defense, stating “The policy of corrections staff is that… they are to be in close proximity to somebody who is testifying that’s been accused of a crime”.
The Court of Appeals disagreed and G.L.’s conviction was reversed. The Court held it was an abuse of discretion for the trial judge to rely solely on the concerns of a corrections officer when approving such a measure, citing State vs. Finch, a 1999 case (137.Wn2d792). Basically, the intimidating closeness of the corrections officer made G.L. look guilty.
To preserve the presumption of innocence, G.L. was “entitled to the physical indication of innocence, which includes the right of a defendant to be brought before court with the appearance of dignity and self-respect of a free and innocent person”, quoting from Finch.
There must be a specific factual determination on the record that an officer’s presence is necessary. Simply being accused of a crime is not sufficient reason. It was the objections of a good defense attorney that made a record which could not be ignored upon appeal. The trial court abused its discretion by engaging in no analysis of the poor appearance of the officer’s presence or its necessity. The court just took the officer’s word about standing next to the defendant, making it look like the defendant might come leaping out of his chair. The trial judge gave no “case-specific” reason, and this error was not harmless.
If you have a criminal matter and would like to consult with a lawyer, contact Jan Olson at Ellis, Li & McKinstry, PLLC. You can reach Jan by calling (206) 682-0565 or by e-mail at [email protected].