In one of the first attempts to take advantage of a recent Court of Appeals ruling, a defendant in an upcoming child sexual abuse case inHoward County is seeking access to the two alleged victims' school records to attack their credibility.
Patrick L. Cunningham, 52, of the 3100 block of Normandy Woods Drive in Ellicott City, is charged with committing child abuse and second-degree sex offenses against two9-year-old girls who lived in his apartment building.
At a pretrial hearing last Thursday, Cunningham's lawyer, Thomas B. McCarty, cited a March 16 state Court of Appeals ruling that school records may be disclosed to comply with a judicial order. McCarty sought to bolster his argument that the defense is entitled to the girls' school records. He argued that information contained in the records may be used to impeach the girls' credibility on cross-examinationat trial.
"Mr. Cunningham will be confronted by two young children," McCarty said. "The nature of the trial will be to evaluate the credibility of the witnesses."
One of the girls, McCarty said, "is at least troubled," has had problems at school and has missed classes.She has also displayed combative behavior and "inappropriate sexual activity among her own peer group."
Assistant State's Attorney Walter Closson maintained that school records are confidential and aren't relevant to the case.
"Our position is that the school records have nothing to do with whether she was sexually assaulted or not," Closson said.
He said he couldn't comment further until he read the complete Court of Appeals decision.
Cunningham is accused of sexually assaulting two girls who lived in his apartment building. He was charged last July after the girls alleged that Cunningham engaged in oral sex with them last July 1 in a wooded area behind the apartment complex.
In November, one of the girls made a second accusation, saying that Cunningham had sodomized her between April 16 and May 27.
Cunningham has pleaded not guilty to all the charges.
The Courtof Appeals decision cited by McCarty is significant because it givesthe defense "controlled access" to school records in child abuse cases, said Gary E. Bair, chief of the criminal appeals division of the state Attorney General's Office.
The state's highest court said that judges may review confidential educational records themselves or in the presence of the attorneys.
The decision takes access to sensitive records a step further by making it possible for the attorneys to review the records as well, Bair said. But judges may impose restrictions on inspecting the records, such as only making the records available to the defense counsel, and not the defendant, and conductingthe review in the judge's chambers.
"It attempts to balance the primary concerns of the child with the needs of a criminal defendant to defend himself," Bair said.
The ruling overturned the verdict ofa man convicted in Montgomery County of abusing his 12-year-old granddaughter in 1989.
McCarty is also seeking access to the girls' records from the Department of Social Services and their medical records.
Generally, judges review these records in chambers to determineif any information is relevant or exculpatory, said Christine Keane,an assistant county solicitor.
At the hearing, McCarty said that Cunningham cared very much for the children and had even approached the parents of one girl because he was concerned about her behavior. The girl was saying publicly that she and Cunningham were having oral sex, McCarty said.
McCarty maintains that the charges against Cunningham stem from an incident in which he permitted the girls to smokecigarettes. Their parents became upset and from there "the matter snow-balled from the defendant's point of view," McCarty said.
Circuit Judge Cornelius F. Sybert, Jr. has not yet ruled on McCarty's request.