Law & Disorder

Happy New Year!

The U.S Supreme Court starts anew
This past Monday, the first Monday of October, is the beginning of a new term for the United States Supreme Court, and it is already looking to be a ground-breaker. Among those highly-watched cases was the decision not to hear any of the seven cases on same-sex marriage from the lower courts.

Also among the cases the Supremes will hear during this term is a case from Cleveland involving the right to confront witnesses, as required by the United States Constitution’s Fifth Amendment. The facts of the case, reported in the decision issued by the Ohio Supreme Court, are thus:

“Darius Clark lived with his girlfriend, T.T., her three-year-old son, L.P. and her two-year-old daughter, A.T. On March 17, 2010, Clark dropped off L.P. at the William Patrick Day Head Start Center in Cleveland. While in the center’s lunchroom, one of L.P.’s preschool teachers, Ramona Whitley, observed that L.P.’s left eye appeared bloodshot and bloodstained. She asked him, ‘What happened?’ and L.P. at first said nothing, but then replied, ‘I fell.’ Whitley asked, ‘How did you fall and hurt your face?’ and L.P. answered, ‘I fell down.’

“On arriving in the brighter light of the classroom, Whitley looked again at L.P. and saw ‘[r]ed marks, like whips of some sort’ on L.P.’s face. Whitley, ‘in shock,’ got the attention of the class’s lead teacher, Debra Jones.

“When Jones saw L.P.’s eye, she said, ‘He needs to go to Ms. Cooper, my supervisor. After I looked at him, I said, you know, I’m going to take him to Ms. Cooper.’ Jones then asked, ‘Who did this? What happened to you?’ L.P. ‘seemed kind of bewildered. He said something like Dee, Dee.’ Jones described L.P. as ‘Out. Staring out. And I was asking him – he almost looked uncertain, but he said, Dee.’ Because L.P. had only attended the school for a short time, Jones could not be certain the child understood her questions. Jones escorted L.P. to the school office. She testified that when the supervisor, Cooper, observed L.P.’s injuries, she said, ‘Whoever seen [sic] him first got to make the call.’ As a result, Whitley called 696-KIDS and made a report of suspected child abuse.

“In response, the Cuyahoga County Department of Child and Family Services (“CCDCFS”) sent a social worker to the school to question L.P. Clark arrived at the school while the social worker was questioning L.P. and denied responsibility for L.P.’s injuries. Clark then left with the child.

“The next day, a social worker located T.T.’s children at the home of Clark’s mother and took them to the hospital. A physician determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object and that A.T. had bruising, burn marks, a swollen hand and a pattern of sores at her hairline. The physician suspected child abuse and estimated the injuries occurred between Feb. 28 and March 18, 2010.

“A grand jury indicted Clark on one count of felonious assault relating to L.P., four counts of felonious assault relating to A.T., two counts of endangering children and two counts of domestic violence. The trial court declared L.P. incompetent to testify, but denied Clark’s motion in limine to exclude L.P.’s out-of-court identification statements. Seven witnesses testified regarding the statements made by L.P. Unexplained in this record, and highlighted by the court of appeals in its opinion, is that the trial court declared L.P. incompetent to testify at the time of trial, yet it permitted testimony about statements this incompetent three-and-a-half-year-old child made to his teachers six months earlier. The jury found Clark guilty of all charges, except for one count relating to A.T., and the court thereafter sentenced Clark to an aggregate 28-year prison term.”

Here’s my take.

In order for a child under the age of 10 to testify, the judge has to examine the child to determine if the child has sufficient memory capacity, has sufficient intelligence to understand what truth is and can reliably keep a promise to tell the truth. In this case, the Court said the child could not meet this criteria and would not let the child testify. Nonetheless, the judge allowed others to testify as to what the child said – statements which were hearsay and could not be challenged by the defendant because the person who made the statements was not allowed to take the stand.

The Confrontation Clause of the Sixth Amendment to the Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The Ohio Supreme Court ruled correctly that Clark was not allowed to confront his accuser.

The United States Supreme Court should decide likewise.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth St. in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at 937.223.5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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