NJ & CT News

CONNECTICUT

In Visitation Abduction Case, Supervising Legal Aid Attorney Not Negligent

In a lawsuit stemming from a parental kidnapping more than 10 years ago, a court in June granted judgment to a legal aid attorney whom the plaintiff mother alleged was negligent and breached her fiduciary duty while supervising visitation between her child and the child's father.

Plaintiff Leyla Mirjavadi married Orang Fabriz in 1990 and they had a daughter in March 1994. After Mirjavadi and Fabriz were divorced, they hired a legal aid attorney, defendant Maria Varone, to supervise the father's visitation, starting in July 1996. The father did not have a driver's license, and an uncle of his usually drove him to his supervised visitation. In previous supervised visits at the mall, the father and child had played alone in a children's area at a bookstore. During the visitation during which the child was abducted, in October 1996, the court found that the uncle led attorney Varone to believe that he himself had again driven Fabriz to the mall, all the while knowing that Fabriz had instead used the uncle's credit card to obtain alternate transportation. The uncle stayed behind at the mall and stalled Varone by pretending nothing unusual was happening, when in fact he knew that Fabriz had abducted the child. The court credited the legal aid attorney's testimony that she believed that the father could not leave the U.S., because another attorney or an embassy had kept his passport. The court found that the father and uncle's conduct in planning and carrying out the kidnapping was intentional, criminal and superceding, and therefore the plaintiff could not prove the legal aid attorney was negligent or breached her fiduciary duty. The case is Mirjavadi v. Vakilzaden, Stamford/Norwalk J.D., at Stamford (Doc. No. CV98-0166632) (Nadeau, J. ' June 19, 2008 ' 6 pages.).

NEW JERSEY

Third-Party Abuse Evidence Permitted in Child Sex Abuse Case

In a case decided in July, New Jersey's Supreme Court has expanded the scope of admissible evidence in child sex-abuse cases under certain circumstances; specifically, when there is evidence of sexual abuse by a third party, that evidence is admissible if it is relevant to the jury's determination of the victim's credibility and its probative value outweighs its prejudicial effect. New Jersey's Rape Shield Law generally prohibits such evidence, as a sex abuse victim's previous sexual conduct is usually presumed inadmissible under the law. However, in the case of State v. Schnabel, — A.2d —-, 2008 WL 2884835, N.J., July 29, 2008 (NO. A-13 SEPT.TERM 2007), an exception has now been carved out.

The appeal came from a man who was convicted by a jury of sexually assaulting his fiance's two daughters while living with the family in the mid-1990s. The allegations of sexual abuse surfaced in 1999, three years after the appellant and his fiance' had broken off their relationship and he had moved out of the house.

The prosecution offered the testimony of an expert, who described the five sequences of Child Sexual Abuse Accommodation Syndrome (CSAAS): 1) secrecy; 2) helplessness; 3) entrapment, coercion, or accommodation; 4) delayed or unconvincing disclosure; and 5) recantation. In response, the appellant sought to offer evidence that the girls were actually sexually assaulted by their own brother (who had previously admitted to such), which would serve as an alternate explanation for their exhibiting behavior consistent with CSAAS. The court, however, forbade any mention of the girls' prior sexual experiences.

The appellant testified on his own behalf at trial and denied touching the girls inappropriately. On cross-examination, the prosecutor asked why the elder daughter would have lied about the abuse three years after the appellant's relationship with their mother ended. That question opened the door to testimony about the brother's actions, but the court refused to allow withdrawal of the question and also ordered the appellant not to mention the brother. He did not, and was convicted of first-degree aggravated sexual assault and other counts. The Appellate Division affirmed.

The New Jersey Supreme Court found no error in the ruling prohibiting discussion of the girls' prior sexual abuse Under the Rape Shield Law but did find that the third-party-abuse evidence was admissible under the confrontation and compulsory-process clauses of the state and federal constitutions, since the appellant's basis for his defense was that the victims' credibility was at issue because they had changed their stories about whether it was the appellant or the girls' brother who had abused them, and because their brother had testified he had committed abuse. The court found that the appellant's evidence of third-party sexual abuse was key to his defense that the acts complained of were in fact committed by someone else.

Schnabel's attorney, Deputy Assistant Public Defender Michael Jones, lauded the decision's fairness, stating, “I think [the ruling] supports the principle that the jury needs to have all the information in order to reach the right decision.”

Division of Criminal Justice spokesman Peter Aseltine expressed disappointment, however, saying, “We're concerned about how this ruling might affect other cases where CSAAS testimony is properly introduced, but the victim has been sexually abused prior to the case at hand.”

CONNECTICUT

In Visitation Abduction Case, Supervising Legal Aid Attorney Not Negligent

In a lawsuit stemming from a parental kidnapping more than 10 years ago, a court in June granted judgment to a legal aid attorney whom the plaintiff mother alleged was negligent and breached her fiduciary duty while supervising visitation between her child and the child's father.

Plaintiff Leyla Mirjavadi married Orang Fabriz in 1990 and they had a daughter in March 1994. After Mirjavadi and Fabriz were divorced, they hired a legal aid attorney, defendant Maria Varone, to supervise the father's visitation, starting in July 1996. The father did not have a driver's license, and an uncle of his usually drove him to his supervised visitation. In previous supervised visits at the mall, the father and child had played alone in a children's area at a bookstore. During the visitation during which the child was abducted, in October 1996, the court found that the uncle led attorney Varone to believe that he himself had again driven Fabriz to the mall, all the while knowing that Fabriz had instead used the uncle's credit card to obtain alternate transportation. The uncle stayed behind at the mall and stalled Varone by pretending nothing unusual was happening, when in fact he knew that Fabriz had abducted the child. The court credited the legal aid attorney's testimony that she believed that the father could not leave the U.S., because another attorney or an embassy had kept his passport. The court found that the father and uncle's conduct in planning and carrying out the kidnapping was intentional, criminal and superceding, and therefore the plaintiff could not prove the legal aid attorney was negligent or breached her fiduciary duty. The case is Mirjavadi v. Vakilzaden, Stamford/Norwalk J.D., at Stamford (Doc. No. CV98-0166632) (Nadeau, J. ' June 19, 2008 ' 6 pages.).

NEW JERSEY

Third-Party Abuse Evidence Permitted in Child Sex Abuse Case

In a case decided in July, New Jersey's Supreme Court has expanded the scope of admissible evidence in child sex-abuse cases under certain circumstances; specifically, when there is evidence of sexual abuse by a third party, that evidence is admissible if it is relevant to the jury's determination of the victim's credibility and its probative value outweighs its prejudicial effect. New Jersey's Rape Shield Law generally prohibits such evidence, as a sex abuse victim's previous sexual conduct is usually presumed inadmissible under the law. However, in the case of State v. Schnabel, — A.2d —-, 2008 WL 2884835, N.J., July 29, 2008 (NO. A-13 SEPT.TERM 2007), an exception has now been carved out.

The appeal came from a man who was convicted by a jury of sexually assaulting his fiance's two daughters while living with the family in the mid-1990s. The allegations of sexual abuse surfaced in 1999, three years after the appellant and his fiance' had broken off their relationship and he had moved out of the house.

The prosecution offered the testimony of an expert, who described the five sequences of Child Sexual Abuse Accommodation Syndrome (CSAAS): 1) secrecy; 2) helplessness; 3) entrapment, coercion, or accommodation; 4) delayed or unconvincing disclosure; and 5) recantation. In response, the appellant sought to offer evidence that the girls were actually sexually assaulted by their own brother (who had previously admitted to such), which would serve as an alternate explanation for their exhibiting behavior consistent with CSAAS. The court, however, forbade any mention of the girls' prior sexual experiences.

The appellant testified on his own behalf at trial and denied touching the girls inappropriately. On cross-examination, the prosecutor asked why the elder daughter would have lied about the abuse three years after the appellant's relationship with their mother ended. That question opened the door to testimony about the brother's actions, but the court refused to allow withdrawal of the question and also ordered the appellant not to mention the brother. He did not, and was convicted of first-degree aggravated sexual assault and other counts. The Appellate Division affirmed.

The New Jersey Supreme Court found no error in the ruling prohibiting discussion of the girls' prior sexual abuse Under the Rape Shield Law but did find that the third-party-abuse evidence was admissible under the confrontation and compulsory-process clauses of the state and federal constitutions, since the appellant's basis for his defense was that the victims' credibility was at issue because they had changed their stories about whether it was the appellant or the girls' brother who had abused them, and because their brother had testified he had committed abuse. The court found that the appellant's evidence of third-party sexual abuse was key to his defense that the acts complained of were in fact committed by someone else.

Schnabel's attorney, Deputy Assistant Public Defender Michael Jones, lauded the decision's fairness, stating, “I think [the ruling] supports the principle that the jury needs to have all the information in order to reach the right decision.”

Division of Criminal Justice spokesman Peter Aseltine expressed disappointment, however, saying, “We're concerned about how this ruling might affect other cases where CSAAS testimony is properly introduced, but the victim has been sexually abused prior to the case at hand.”