Sacramento County judge violated ADA rights, complaint says

07/31/2013 12:00 AM

07/31/2013 8:34 AM

The National Aphasia Association has filed a discrimination complaint against a Sacramento judge for ruling that an alleged rape victim with the disorder that inhibits communication isn't competent to testify at trial.

Besides naming Superior Court Judge Cheryl Chun Meegan in a complaint filed with the U.S. Justice Department, the association wants the agency's disability rights section to review the Sacramento County District Attorney's Office for not taking up the issue on appeal.

"Unfortunately, it appears that this woman with aphasia was deemed not to be competent to testify," Ellayne S. Ganzfried, executive director of the New York-based advocacy group, said in an interview Tuesday. "People with aphasia are competent, and can be competent, if provided with the appropriate accommodation as required by law. And, as can be suggested if the woman is evaluated by a speech-language pathologist, she very clearly would be able to communicate in some form that is going to be appropriate."

The complaint, filed in letters dated July 10 and July 25, accused the court, the county, the DA's Office and the state of California of discriminating against the alleged victim and violating her rights under the Americans with Disabilities Act. It also cited federal violations of the Violent Crime Control and Law Enforcement Act of 1994 and the Omnibus Crime Control and Safe Streets Act of 1968.

Meegan made her ruling July 1 in the 12-count sexual assault case that is pending against former Sacramento police Officer Gary Dale Baker. The victim, identified in court papers as "Jane Doe," is a woman now in her late 70s who had suffered a stroke that resulted in her being diagnosed with aphasia, the communication disorder in which people maintain their intellectual capacities but have difficulty expressing their thoughts.

The judge earlier this year held a conditional examination in which the alleged victim showed difficulty in answering open-ended, "narrative" type questions, but appeared to fare better in answering more simple queries such as identifying colors or saying how many children she had.

Meegan appointed UC Davis associate professor of neurology Sarah Tomaszewski Farias to examine the woman, and it was based on her evaluation that the judge excluded the alleged victim from testifying in the case against Baker.

Speaking on behalf of the court, Presiding Judge Laurie M. Earl said she hasn't seen the aphasia group's filing with the Justice Department, "but if the complaint is that the court didn't do anything to address the ADA rights of Miss Doe in this case, I would disagree."

"The court raised the issue and also appointed an expert to provide input to the court on that issue and specifically asked them to provide any recommendations regarding reasonable accommodations the court could employ that would assist the witness in providing testimony," Earl said. "That was done, the court received the report from the doctor and made the decision afterwards."

A letter from Meegan's court clerk asked Farias to report on the woman's cognitive functioning, her ability to communicate "verbally, through interpretation, or non-verbally with the use of other devices." To accommodate the alleged victim, the letter told Farias she could suggest "the form of questions posed to the witness, use of visual aids" and other tools "which may aid in communication with the witness."

Farias' report has since been sealed.

Ganzfried, the aphasia group's executive director, said Tuesday her organization has not had any contact with the alleged victim and filed the complaint "as a representative of the public interest." Justice Department spokeswoman Dena Iverson said, "When the department receives the complaint, they will review it." Asked what the agency would do next, Iverson said, "It depends on the review."

Ganzfried said that after Meegan's ruling earlier this month, an attorney who is representing the National Aphasia Association attempted to contact the court, its ADA coordinator and the DA's Office, "and did not get a single response."

The complaint targeted the Sacramento DA's Office because it "has taken no steps to appeal or otherwise challenge the court's ruling."

Sacramento County Assistant Chief Deputy District Attorney Lori Greene said her office did not appeal Meegan's ruling because "the judge in this case did an excellent job in terms of going above and beyond what many courts would have done."

"In our opinion there would not be any reason to appeal or file a writ on Judge Meegan's ruling because it was correctly decided based upon quite a bit of information that was presented to the court," Greene said.

At the alleged victim's conditional examination, Deputy District Attorney Amy Holliday asked focused questions designed to elicit concrete responses, such as getting the witness to identify certain colors, which she did. Greene said the doctor, however, in a three-hour evaluation of the woman, determined that the alleged victim couldn't really understand and answer the questions.

"While it may have appeared that she was able to accurately understand and answer certain questions that were posed to her initially by the DA, that would not have been an accommodation that would have satisfied the situation," Greene said.

Greene characterized the complaint as "clearly done with good intentions, but I don't believe they had all the facts when they made their complaint."

Call The Bee's Andy Furillo, (916) 321-1141. Follow him on Twitter @andyfurillo.

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