Judge Overturns Rape Conviction
Disabled Woman Was 'an Exhibit'

By Ernesto Londo¿o
Washington Post Staff Writer
Thursday, November 22, 2007

During Earl Charles Dyer's rape trial in January 2006, prosecutors argued that the victim in the case, a mentally disabled woman, should appear before the jury as an exhibit, rather than a witness.

The judge agreed and allowed the jury to see the woman and listen to her on the witness stand, but barred the defense from cross-examining her.

Now, in a move that will provide guidance to prosecutors and judges in future cases involving mentally disabled victims, the Maryland Court of Special Appeals recently overturned Dyer's conviction, ruling that the trial judge erred in allowing the state to introduce the victim as an exhibit.

"They put this woman in front of the jury to evoke the jury's sympathies and prejudices," said Rockville defense lawyer Stephen B. Mercer, who handled the appeal. "You can't use a human being as an exhibit to establish their degree of mental defectiveness."

Dyer was released after the conviction was overturned.

Dyer, 62, of Forestville, was charged in Prince George's County in 2004 with second-degree rape for having intercourse with his girlfriend's daughter in winter 2002. At the time, the victim was 28. The Washington Post generally doesn't identify victims of sexual crimes.

Court records provide the following account:

The woman's mother started dating Dyer in 1996. The daughter lived in a group home in South Florida between 1999 and 2003. She flew to Maryland in December 2002 to spend Christmas week with her mother and Dyer.

During the visit, the woman was left home with Dyer on two occasions while her mother was at work. The mother testified that she didn't notice anything amiss during the visit.

When the girl returned to Florida, however, employees at the group home noticed that her period was late. They contacted authorities after a pregnancy test came back positive. The pregnancy was terminated in May 2003.

Miami-Dade County detectives compared a DNA sample taken from the fetus with samples from several men, including Dyer. A DNA analysis strongly suggested that the baby was Dyer's.

Dyer told detectives that he awoke one morning after taking sleeping pills and found the woman in his bed. He told detectives he didn't have sex with her.

At trial, prosecutors asked Circuit Court Judge Michele D. Hotten to allow them to call the woman to the stand as a "demonstrative exhibit," according to the ruling. In doing so, prosecutors were seeking to convince the jury that the woman was a "mentally defective individual." Under Maryland law, having sex with a person who meets that legal standard constitutes second-degree rape.

The victim is deaf, and according to the testimony of her mother, has the cognitive skills of a 3- to 5-year-old.

Over the defense lawyer's objection, Hotten allowed the state to put the woman on the stand as an exhibit. She was asked her name, age, where she lived and whether it was sunny outside. Prosecutors didn't ask her about Dyer or the pregnancy.

Defense lawyer Ross D. Hecht argued that his client's constitutional right to confront witnesses in court had been violated and asked the judge to declare a mistrial. The judge turned down the request.

Mercer said the state could have attempted to convince the jury that the woman was "mentally defective" through the testimony of experts who had evaluated her. The state called no such experts.

The case touches on a contentious legal and ethical issue: to what extent should the government regulate a mentally disabled person's ability to have intimacy and sex.

Dyer didn't take the stand and did not acknowledge having sex with the woman. If the defense had been allowed to cross-examine her, Mercer said, the defense lawyer could have asked whether she had been educated on what constitutes appropriate and inappropriate contact and whether she could tell the difference.

If she said she had and could, the defense could have argued that the encounter did not constitute rape.

The ruling, filed Oct. 16, scrapped Dyer's 20-year sentence. Prosecutors may ask the state's highest court to review the case. Kathryn Grill Graeff, chief of the Maryland attorney general's criminal appeals division, said the state has not decided whether to seek higher review. The Special Court of Appeals is the state's second-highest court. The state could ask the Court of Appeal to review the case, but the highest court is not required to do so.