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"Boomerang Cases"

Herring Conviction Overturned

When Dale Herring was convicted of raping and beating Kimberly Ramming in April, 2003, it was a mixed blessing. While the jury voted to convict on forcible rape, attempted sodomy, and assault resulting in great bodily injury, they unfortunately hung 8 to 4 on the most serious charge, attempted murder.

But attempted murder it surely was, as Herring reportedly held Ramming hostage, drugged and beat her for hours, and tried to smother the life out of her with a pillow. Kim Ramming narrowly escaped death, crawling out her bedroom window and screaming to her neighbors for help. Seriously injured and already grievously ill, Kim committed suicide two days later.

Though disappointed by the partial verdict, we were heartened by Judge Boyd’s 17-year sentence. Soon after, Dale Herring was shipped off to prison.
But he may soon be back in Sonoma County Jail awaiting a new trial. His conviction was overturned by the California Court of Appeal in May.

Victim’s Statements Thrown Out
Herring’s appeal hung on a recent ruling by the U.S. Supreme Court in Crawford v Washington, which found that “testimonial statements,” like a victim’s statements to police, aren’t admissible in court unless the victim can be (or has been) cross-examined under oath. The court ruled that, without cross examination, allowing such statements into the criminal trial violates the defendant’s right to confront his accuser in court.

Crawford, if it stands undiluted, poses perhaps its biggest threat in prosecutions of violence against women. Often domestic violence victims are afraid to testify or, as in Kimberly Ramming’s case, are dead. And in sexual assault cases, especially those involving children, victims are sometimes too traumatized to testify. Until now, the courts have allowed the victim’s statements to police to come into the trial through the investigating cop’s testimony.

Under the ruling handed down in Crawford, that will no longer be the case. And in fact, in some post-Crawford decisions, the U.S. Supreme Court has interpreted “testimonial statements” so broadly that even 911 calls and victim’s statements in sexual assault exams may be excluded.

So what happens when, as in this case, the victim is dead? If, in the 911 call she made in the heat of the struggle, she answered the dispatcher’s specific questions, the tape of that call will likely be inadmissible. And when police came to investigate, everything she said detailing the attack is out. If she had a sexual assault exam, which has a mix of medical and forensic purposes, her account of the assault to the sexual assault examiner won’t be allowed in the trial.
In most cases, where there are no other witnesses, that doesn’t leave the prosecution much to work with.

Darrell Younger Conviction May Also Be in Danger
Another Sonoma County case endangered by the Crawford decision is that of Darrell Younger, twice convicted in the death of Heather Moore. A jury originally found Younger guilty of 1st degree murder in 1997. That conviction was overturned on a technicality. He was retried, and last year he was again convicted, this time of 2nd degree murder.

Younger’s Public Defender moved to set aside the second conviction on the basis of the Crawford decision. That is, because Heather Moore was dead (albeit at Younger’s own hand), she couldn’t be cross-examined. Thus all her previous reports to police of Younger’s domestic violence against her should have been excluded from the trial.

While the argument didn’t fly with Judge Raima Ballinger, don’t be surprised if this case too is appealed to a higher court. If he gets yet a third trial, we may find that, without Heather’s statements, there isn’t enough evidence for prosecution. And yet another murderer of a local woman would get his “get out of jail free” card.

It’s a scary thought

July 2005


© Tanya Brannan, Purple Berets
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