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Macomb County molestation case argued in front of Michigan Supreme Court

Prosecuting and defense attorneys argued Wednesday whether a young girl was “unavailable” or “incompetent” to testify at a Macomb County molestation trial, in front of state Supreme Court justices.

In a one-hour hearing featuring frequent interaction between four lawyers and seven justices, participants wrangled over an issue that likely will determine whether a 4-year-old girl’s prior testimony from a preliminary hearing will be used at the trial of Stanley and Vita Duncan of Fraser.

Their trial was placed on hold last fall when Macomb Judge Matthew Switalski declared her incompetent to testify because she said she could not tell the difference between the truth and a lie.Switalski rejected an assistant prosecutors’ request to have the girl’s preliminary examination testimony against the defendants recited in front of the jury because she is not unavailable as defined by a court rule.

But Macomb and state prosecutors contend her prior testimony can be used because she fits the legal definition of unavailable on the basis she is mentally “infirm.”

“A 4-year-old testifying in front of the judge, the jury, the defendants … is (was) in a compromised state” due to her young age, assistant Macomb prosecutor Joshua Abbott told the jurists, adding that she suffered from post traumatic stress disorder, “hand wringing and was crying” during Switalski’s questioning.

“She’s not an adult, so therefore she’s different,” he said. 

Michigan evidentiary rules say a witness can be declared unavailable due to privilege, refusal to testify, lack of memory or inability to be present.

Stanley Duncan, 66, is charged with molesting two girls age 3 and 4 between 2009 and 2011, and a third young girl in the 1990s. Vita Duncan, 63, is charged with aiding and abetting by knowing about, but not reporting the allegations regarding one accuser, and operating an unlicensed day-care facility.

The testimony in question was that of the younger accuser. If her testimony cannot be used, all of the aiding and abetting charges against Vita Duncan and several of the charges against Stanley Duncan likely will be dismissed.

Upon prodding by Justice Stephen Markman, much of the debate late in the hearing centered around the rule’s use of the word “including” in listing the reasons for unavailability.

Abbott noted that the legislators who drafted the rule preferred “including” over “is.”

“The list is not exhaustive,” he said, adding the Duncan-case situation carries “the same kind of character” as the other descriptions in the rule.

But defense appellate attorneys said the rule should be read strictly.

“This is a slippery slope,” said Frank Eaman, attorney for Vita Duncan. “Once you say it can include anything, it can include anything …. If the court wants to create a rule, it needs to publish it and get comments on it.”

“If you include certain things, you exclude things,” said Martin Beres, Stanley Duncan’s attorney. “I’m sure (the rule’s authors) were very careful and circumspect to frame the rule the way it did.”

Chief Justice Robert Young asked if a “closed” or “open” definition of unavailable should be used. “Which is the reasonable one?” he said.

State Attorney General Bill Schuette was allowed to file a brief, and assistant attorney general Anna Galetica argued for having the girl declared unavailable, noting other states’ rules favor that.

“Other states agree incompetency is equivalent … to unavailable under the rule,” she said. “States agree children are to be regarded differently than adults.”

A ruling is expected by July, the end of the court’s session.

(From MACOMB COUNTY DAILY)