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Thursday, November 12, 2009

Lawyer says sexual assault victim was illegally barred from testifying

The MetroWest Daily News
Posted Nov 12, 2009 @ 12:12 AM

A Sudbury nursing home resident who claimed she was sexually assaulted by an aide early this year has been illegally blocked from testifying in next month's trial because of her disability, her lawyer said.

The 62-year-old woman, whom the Daily News is not identifying because the allegations involve a sexual assault, was improperly ruled incompetent to testify, said attorney Wendy Murphy.

Murphy filed an appeal on the woman's behalf with the state Supreme Judicial Court, challenging the ruling by Framingham District Court Judge Paul Healy Jr.

The woman suffered a stroke in 2001 and was living at Sudbury Pines Extended Care. She has a condition called "expressive aphasia," a disorder that makes it difficult to communicate through speech or writing but does not affect her mental capacities, Murphy said. The woman remains at the same facility.

"When a court rules that a fully competent person is unable to testify because she can't communicate, that's a problem," said Murphy. "A lot of people have disabilities that make it difficult to testify. To have someone shut the courtroom door, slam it shut, to a woman who is cognitively competent, is wrong."

In February, the woman claimed she was sexually assaulted by Kofi Agana, who worked as an aide at the nursing home. Through movements and pointing to areas of her body, she claimed Agana touched her breasts and genitals.

Agana, 47, of Fitchburg, was arrested and charged with two counts of indecent assault and battery on a disabled person older than 60 and one count of assault and battery on a disabled person older than 60.

At one point, Agana's lawyer, Robert Canty, asked Healy to determine whether the woman was mentally competent to take the stand. The judge assigned forensic psychologist Rosemary Klein to perform a competency exam.

"Dr. Klein concluded that (the woman) is mentally competent," Murphy said in her appeal to the SJC. "(The woman) was able to express to Dr. Klein that Kofi Agana committed a sexual offense against her as well as other relevant information that indicated her capacity to recall and relate life experiences reliably."

Healy then held a competency hearing in August, and required the woman to testify without the help of an interpretive assistant, Murphy said. After that hearing, Healy ruled the victim was not competent to testify.

Murphy said she believes the ruling is the same as if a judge ruled a deaf person could not use a sign language interpreter while testifying and is a violation of the federal Americans with Disabilities Act.

"We want to facilitate the ability of the disabled to have all their rights and the ability to testify," said Murphy. "It's not only a very serious issue with the victim in this one case, but victims in many cases. We would like to send a very different message about the vulnerabilities of disabled people."

Canty could not be reached for comment, but in his response to Murphy's filing, he argued that the nursing home resident has no legal standing to appeal the judge's ruling.

The Middlesex district attorney's office took no stand in the appeal, but noted in a letter to the court that it also believes the victim has no standing to file an appeal.

"I find that disturbing," said Murphy. "What in God's name is wrong with a legal system that even the prosecutor said the victim has no right of appeal, even when the judge makes a clearly wrong decision? Why is the prosecutor, the lawyer for the people, the ones who are supposed to protect those who can't protect themselves, taking this position?"

In a statement, Middlesex District Attorney Gerry Leone said prosecutors still plan on trying to convict Agana at a trial scheduled to begin Dec. 15 in Framingham District Court.

"We pursued and exhausted every legal, ethical recourse we had within the law and facts of this case, but ultimately are bound by the trial judge's findings on the issue of the victim's competency to testify in this matter," said Leone. "Despite the resulting serious trial challenges that we are faced with, given the trial judge's ruling, we remain ready to fully prosecute this case at trial on behalf of the victim and the commonwealth."

If the SJC does not rule on the appeal before Agana's trial, or if it rules against the appeal, Murphy said she will appeal the case federally.

Agana, who is from Ghana, is being held in federal Immigration and Customs Enforcement custody because authorities say he is in the country illegally.

(Norman Miller can be reached at 508-626-3823 or nmiller@cnc.com.)

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