Sex Crimes Cases Allowed to Proceed
By Con Garretson
Marin Independent Journal
January 23, 2003
Three men accused of child molestation who contend the charges stem from an unconstitutional law failed yesterday in their combined bid to have their charges dropped.
Defense attorneys for the three defendants - including a current and a former Catholic priest - said a state law that overrides the normal statute of limitations of such offenses violates their due process rights.
However, Marin County Superior Court Judge Verna Adams agreed with the prosecution and ruled that a decision by the state Supreme Court validating the same law in a similar case justifies prosecuting Robert Edward Fleak, Rev. Jerome Paul Leach and Guy Anthony Murnig for alleged sex crimes that reportedly occurred more than 20 years ago.
Adams set a hearing for later this month to consider delaying the proceedings in all three cases until after the U.S. Supreme Court issues a ruling on the same constitutional question, which is expected in June.
If the justices determine the state law is unconstitutional, charges against four Marin child molestation defendants and others in the same situation likely would be dropped.
It also would invalidate the high-profile Sonoma County child molestation conviction of suspended priest Donald Kimball, among others.
At issue is whether the prosecutions violate the ex post facto clause of the Constitution, which prevents a person from being tried under laws enacted after the conduct in question.
Deputy District Attorney Charles Cacciatore said the 1994 law was enacted by the state Legislature after elected officials determined that it was in society's interest to make exceptions for prosecuting certain sex crimes because of their ongoing impact on victims.
The law allows prosecutors to make cases against molestation suspects beyond the normal statute of limitations, which is 10 years. A suspect must have engaged in "substantial sexual conduct" and charges must be brought within a year of the victim making a first report to authorities.
San Rafael attorney A. Leonard Bjorklund, who represents both Fleak and Murnig, argued that it would be difficult, if not impossible, to verify the claims of the alleged victims decades later as the "crazy law" necessitates.
"It's not a gimmick defense," he said later outside of court. "Everyone recognizes the seriousness of the alleged acts; the issue is whether or not persons who are accused of such acts are entitled to a fair hearing. And from the defense point of view, you can't have a fair hearing if you let 20-odd years [pass] to press charges, because memories, as well as evidence, fade."
San Francisco attorney Jim Collins, who represents Murnig, said it makes sense to wait until the U.S. Supreme Court has its say, otherwise a lot of effort may be spent on judgments that may be moot.
"I think everybody has to consider whether we want to potentially waste the court's time, whether we want our clients to pay all the attorney fees and force the victims to show up in court and go through everything that has to happen," he said outside of court. "I think it's in everybody's interest to wait."
A hearing has been scheduled for next month before another judge for a similar legal argument to be made in a case against Rev. Milton Thomas Walsh, who, like the other three defendants, is accused of molesting children decades ago.
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