Tuesday, September 18, 2012

'The power of allegations:When innocent until proven guilty collides with public's right to know'

By Robert Allen, as published here: http://www.coloradoan.com/article/20120917/NEWS01/309170033/The-power-allegations-When-innocent-until-proven-guilty-collides-public-s-right-know

Michael Carnes, 39, has never been convicted of a sex offense.

But one year after four charges of sexual assault on a child brought against the former Fort Collins resident were dropped, Carnes remains in a legal battle to have his arrest and court records made secret.

The felony allegations are easily found through an online background check. Carnes said the presence of the allegations has made it difficult for him to find a job and a place to live.

“It’s the 21st-century version of the ‘Scarlet Letter,’ only worse,” said Scott Robinson, a Denver defense attorney and 9News legal analyst not involved with the case, referring to the “sex offender” label. “Certainly, you’re considered to be the scourge of society.”

The Larimer County District Attorney’s Office had the charges dismissed after the judge determined the child, then 6, was too young to testify against Carnes.

But prosecutors hope to bring the case back when the girl is older, according to a request to keep the records open in Larimer County District Court.

Carnes has always maintained his innocence and pleaded not guilty to all counts. He said in court filings that the allegations came during an “acrimonious” divorce and custody dispute.

The local court denied his request to seal the records. Carnes has appealed, and the case is now in the Colorado Court of Appeals. Fort Collins Police Services and the Colorado Attorney General’s Office also have asked courts to keep the records open.

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Conviction on just one count of sexual assault on a child could put Carnes in prison for life. But the District Attorney’s Office says the public has a right to know about the serious allegations against him.

“The nature of the crimes is of such gravity that the public interest in retaining the records is extremely high. Unlawful sexual behavior against a child is a matter of extreme significance that most individuals would want to assess before involving (Carnes) in their affairs,” the District Attorney’s Office stated in a court filing.

Judges now must weigh public transparency against future damage to a presumably innocent man’s reputation. The allegations and associated social stigma are serious enough to interfere with Carnes’ basic needs to make a living and have shelter. But if they’re true, keeping them secret could put other children in danger.

The girl was between 3 and 5 years old when the incidents were alleged to have occurred, police said in court. Prosecutors had 12 statements they’d planned to use in trial, but the court ruling kept half of them out of evidence, including recorded interviews with the child at the Child Advocacy Center.

“I have to be kind of cynical about the idea that, years later, when the child does understand the meaning of the oath, they’ll have a reliable recollection of what happened,” Robinson said. “What will happen is a reliable recollection of what people told them happened.”

The allegations include multiple instances of physical contact, not sexual intercourse. There was one alleged victim, for whom Carnes was in a position of trust.

Carnes, through Greeley attorney Sean Lacefield, declined to speak with the Coloradoan for this article.

After his arrest in 2010, Carnes lost his job as an independent broker-associate affiliated with Infinity Group Realty of Fort Collins. After the dismissal, he’d applied for multiple jobs for which he was well-qualified but was denied each time, with no reason provided. He suspected it was because of the charges, according to the defense. He was “ostracized” in his neighborhood and had to move away. He was able to find a place to stay with a friend.

Carnes was later able to find work through an employer who’d “also experienced false allegations of child abuse” under similar circumstances, was sympathetic and hired him, according to his defense.

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Often, people alleged to have committed sexual assault never end up in court.

“Prosecutors have to think about whether they can convince a jury, and unfortunately that jury is made up of the general public,” said Erin Jemison, executive director of the Colorado Coalition Against Sexual Assault.

She said there are many misconceptions about sexual assault and few cases ever have direct eyewitnesses. But once a case is filed, she said it’s unusual for it to be dropped after the alleged victim is found incompetent to testify.

“Usually, prosecutors find a way around that,” she said.

Pam Russell, spokeswoman for the Jefferson County District Attorney’s Office, said it’s “pretty rare” for such cases to be dismissed after the child was found incompetent to testify.

A Larimer County district attorney spokeswoman said no attorneys were available to comment on the criminal or civil cases involving Carnes.

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The appeals-court process regarding sealing the records will probably be an “uphill battle” for Carnes, as judges would have to find an abuse of discretion with the local court, Robinson said.

Local prosecutors are joined in their fight to keep the records open, as Fort Collins Police Services through the city attorney’s office filed an objection to sealing the records, supporting the DA’s arguments.

Carnes, who now works in Denver for a commercial real estate company, has faced other allegations of violent crimes.

He pleaded guilty to disorderly conduct related to 2010 accusations of harassment of a woman with whom he’d had an intimate relationship, according to court records. The charge was dismissed after he completed a one-year deferred sentence.

He is scheduled for a Nov. 13 jury trial on an accusation of assault for an alleged July 2012 incident in Denver.

While serious, that charge lacks the full peril and uncertainty of four sexual assault charges — and potential associated life sentences — he may one day have to defend against.

That day could come in a matter of years or decades. It may never come.

Sexual assault on a child in Colorado has an unlimited statute of limitations, so there’s no firm deadline for prosecutors to re-file the case.

“You can understand why prosecutors want something on his record, in case there are other allegations against him,” Robinson said. “And you can’t blame him for wanting to get it off his record.

“It’s a tough balance that the judge will have to make.”