The chief judge of the D.C Supreme Court, in the first decision of its kind here, has ruled that a rape victim will not be required to testify at the retrial of her accused assailant because she would suffer "far greater mental anguish" than other such victim who appear in court.
In a lenghty opinion, Chief Judge Harold H. Greene said that, based on psychiatric evidence, the woman's re-appearance in court - five years after she was assaulated - could result in severe psychiatric injury, "even possible suicide."
"The law and the Constitution often demand sacrifices as part of the duties of citizenship," Greene said in his opinion, "but in my view they do not demand as much" as would be required of the woman if she were compelled to testify.
In the same opinion, however, Greene, ruled that a second woman, who contends she was the victim of the same man, must appear in court because her suffering will be no greater than that of other rape victims, according to psychiatric evidence.
In drawing the line between the two cases, Greene indicated that he narrowed his decision to those instances in which the emotional and psychological damage to the witness would be extraordinarily severe.
To do otherwise, Greene said, would be to deny basic constitutional rights to persons accused of rape or any other crime "likely to cause emotional trauma to the victim," such as kidnaping, hijacking or terrorist activities.
Greene's decision came in the case of Morris Joseph Warren, who is charged with assaulting the two women in 1972 during a series of highly publicized assaults that became known as the "Green Vega" rape cases.
Warren, 30, originally was convicted of armed rape, armed kidnaping and other charges in 1973, but the verdict was overturned by the D.C. Court of Appeals in December 1976. The offenses for which he was convicted occurred between June 1972 and January 1973, and involved assaults on four women, all of whom were allegedly lured into a green Vega automobile.
One of the victims has since died, and the fourth cannot be located, the government has said.
In an unusual move last December, Assistant U.S. Attorney Raymond Banoun asked Greene to allow the introduction of transcripts of testimony given by the two women at the first trial, instead of requiring them to appear in court a second time. Banoun argued, and a psychiatrist for the government agreed, that the emotional condition of the women was too tenuous to compel them to testify again. He asked Greene to declare them "medically unavailable" to come to court.
Warren's attorneys, from the city's Public Defender Service, argued that their client has a constitutional right to confront his accusers, that there had been inadequate opportunity to cross-examine the women at the first trial, and that the government had failed to prove that the women were "unavailable."
Last month, Washington psychiatrist Sheila H. Gray, appointed by Greene to examine the two women, testified at a hearing in Superior Court that she had concluded that one of the women was capable of testifying again while the other was not.
Gray described one of the women as more vulnerable than the average witness but added she might gain a "therapeutic benefit" from telling her story to a jury.
The other woman - who Greene ruled would not have to appear - "might become psychotic right before (Greene's) eyes" if she were made to testify, Gray said.
In a footnote to his opinion, Greene said that the government prosecutor now must decide whether to bring the one woman who can testify into court. Otherwise the charges against Warren stemming from her case would have to be dismissed.
Along this line, Greene noted that Warren has already been sentenced in Prince George's County to life imprisonment in connection with the 1973 murder of a 7-Eleven store clerk.
Under Greene's ruling, the government can use the transcripts of prior court testimony from three of the four Green Vega rape victims.
In the same opinion, Greene denied Warren's motions to dismiss the indictments. Warren's attorneys had contended that he had been denied a speedy trial and that the could not have a fair trial because of prejudicial publicity surrounding the case.
However, Greene did grant a defense motion to suppress a statement Warren made to police in connection with the so-called "Freeway Phantom" murders, which occured 1971 and 1972. But he denied a request to suppress statements Warren made to a probation officer in connection with a presentence report after the first trial.