HOW CHILD-ABUSE CASES CAN BE PROSECUTED

Paul Rubin

Pinal County prosecutor Sylvia Lafferty refuses to file charges against Joquitta and Cleveland Palmer for the murder of TaJuana Davidson. Lafferty claims she can't prove within a legal certainty who inflicted the girl's fatal injuries last November 2. Lafferty used to work in Pima County, where she earned a reputation as a bulldog in solid cases but as far less aggressive in close calls. She and Pinal County Attorney Gil Figueroa have referred privately to the 1992 acquittal of Casa Grande's Wesley Davis Jr. as evidence that child-murder cases can be losing propositions. State prosecutors charged Davis with murdering his six-month-old niece by repeatedly pounding her on the head. A first trial ended in a hung jury. Davis won acquittal in the retrial, which assistant attorney general Warren Granville prosecuted.

"Some of the jurors thought the baby's mother was the killer," Granville recalls, "and that and other questions created 'reasonable doubt' in the jurors' minds. You have a dead baby, and you need to show a pattern of abuse. . . . In that case, someone got away with murder, and I'm confident it was the guy we charged."

The best evidence in the Davis case, however, was a dead baby who had died of unnatural causes. There was no documented abusive behavior in Davis' past.

The Palmers, however, had a history of violence against children, which should have made prosecution of TaJuana's murder easier. In addition, Arizona's child-abuse laws make witnesses to violent acts as guilty as the actual abuser.

Veteran Maricopa County prosecutor Dyanne Greer has worked nothing but cases involving violence against children for years.

Greer doesn't know the facts of the TaJuana Davidson case, so she won't specifically discuss Pinal County's failure to prosecute. But her long track record--many convictions, some crushing losses and an occasional no-charge--makes her an expert on how and when to prosecute child abuse.

Greer is painfully aware of the hurdles prosecutors must leap in cases in which a victimized child had multiple caretakers and no one comes clean. She recalls the empty feeling when she couldn't rightfully bring charges against someone she knew, in her gut, was guilty.

"These can be very tough cases to win, and we don't charge unless we believe we can get a conviction," says Greer, who now works as senior attorney at the Washington, D.C.-based National Center for Prosecution of Child Abuse. "It's a lot easier to convict a robber. But I also believe someone has to stand up for a child who has no one else to talk for him or her."

Greer continues, "It's easier for a juror to convict when you can say that this person did it and that person looked on. You have to make a judgment call as to opportunity and motive--if you can find a motive. But, say, one person in a household had to have known what happened even if he didn't actually inflict the abuse. The law on that in most states is clear--that person is just as guilty as if he beat up the kid himself."

Bolstered by appellate court opinions, Arizona law demands the punishment of: "Any person who causes a child to suffer physical injury, or having the care or custody of such child . . . permits such child to be placed in a situation where its health is endangered."

Says Greer, "These cases are not usually a spur-of-the-moment, one-time thing. More than half of our child-murder victims have prior injuries. The perps usually have a low tolerance level--say, the inability to stop a kid from crying--and most of the cases involve families. That makes it a private crime, and harder to convict because of the closed-door dynamic."

Courts around the nation generally agree that the legal duty of a parent to protect a child from harm is basic to the relationship. Child abuse that, even unintentionally, leads to death may trigger the felony-murder rule. In Arizona, the rule allows convictions in specific instances that carry the same effect as a first-degree murder conviction--prison with no chance of parole for 25 years.

But, as Greer can testify, it's not easy securing such convictions in these circumstantial-evidence cases.

In May 1992, for example, she filed child-abuse and murder charges against Josephine Baptisto and Daniel Rodriguez, whose 2-year-old son Joseph died as a result of serious burns over most of his body.

"I was certain that both had been involved equally under the law in a horrendous crime," Greer says.

But, at separate trials, juries convicted Baptisto and acquitted Rodriguez. Rodriguez had the good fortune of having been in and out of the house frequently during the time the child was scalded with hot water.

"I believe child neglect would be a more proper description of my actions," Josephine Baptisto told a judge before sentencing. "I'm not saying I'm an angel from heaven, but I did not abuse him or cause bodily injury to him ever."

The judge sentenced Baptisto, now 30, to 52 years in the Arizona State Prison without the opportunity for parole.

Greer has prosecuted numerous cases in which a child--such as Brandon Palmer--may have been an onlooker to his parents' violence toward a sibling.

"The second child is in a very vulnerable position," she says. "The fear of the unknown often is more powerful than the fear of the known, whatever the known is. It's the whole issue of, 'What's gonna happen to me?' I don't know about the Davidson case, but I've seen these sad cases in which the second child truly loves his parents and literally is at a loss for what to do.