GREENFIELD — The Court of Appeals of Indiana will be weighing in on a local case that focuses on a newer Indiana law designed to protect child sexual assault victims as their cases make their way through the courts.
For the first time under Prosecutor Brent Eaton, his office is asking the Court of Appeals to reverse a pre-trial order issued by Judge Scott Sirk in Hancock County Circuit Court. Sirk gave permission allowing the defense to depose a child who police said was molested by a McCordsville man.
While it’s not uncommon for court decisions to be challenged on either side, this case is different because of the newer state law. Senate Enrolled Act 206 was signed into law on March 18, 2020, and puts significant limits on the ability of criminal defendants to take depositions of child victims in sexual assault cases.
According to court documents, Sirk made his decision on the deposition March 5 of this year, and now officials from the prosecutor’s office are challenging it. They want the appeals court to step in and stop the deposition of the child, who they said has been traumatized enough.
“We will fight tooth and nail and do everything we can to protect the rights of the victim and make sure our children are protected,” chief deputy prosecutor Aimee Herring said.
The issue surrounds the Brendan Patrick Brown case in Circuit Court under Sirk’s supervision.
Herring is handling the case for the state and noted since the statute affording additional protections to child victims of sex crimes was only recently passed, there are numerous cases around the state up on appeal regarding its application to specific cases.
“We respect the courts have to make difficult decisions all the time, but we will use all of the available legal remedies to fight for the rights of our victims, especially children,” Herring said.
Brown, 21, McCordsville, is facing five felony charges, including a Level 3 felony count of child molesting, after police were informed he had sent a nude photo of himself to an under-age girl and then later inappropriately touched her in March 2020.
According to court documents, Brown’s attorney, Gregory S. Brand, filed a motion in February to have the child, who currently lives out of state, be interviewed for a deposition by the defense via a virtual connection, saying it was vital to trial preparation and crucial to Brown’s Sixth Amendment right to confront the accuser.
The prosecutor’s office filed an objection citing numerous reasons against the idea and said no agreement was ever reached between the two parties on a manner in which the deposition might occur, the motion states.
After a hearing in late February, Sirk in early March ordered the virtual deposition to move forward and said in his decision there were “extraordinary circumstances” ruling in the interests of justice, particularly the defendant’s Sixth Amendment rights, for the defense to take the deposition.
Officials in the prosecutor’s office immediately filed a motion for a stay and an appeal, citing the year-old law that affords significant additional protection to child victims of sex crimes by limiting depositions to very specific circumstances, the motion states.
Herring noted in her motion there was never evidence showing the child victim would be either unavailable to testify at the trial or that the deposition was needed to preserve the testimony.
“The order does not make any judicial findings of unavailability of the child or extraordinary circumstances,” Herring wrote in the motion.
The new law also states a defendant can only interview a child victim younger than 16, if the prosecution agrees on the terms, which Herring said in this case did not happen.
Sirk accepted Herring’s motion March 26 agreeing to stay the proceedings and allow the appeals court to consider the prosecutor’s argument.
“This office will make certain that this case is handled properly and that this victim receives all of the protections afforded to her, and that all of our cases and child victims are treated similarly,” Herring said.
The Court of Appeals accepted the case in late May, but no date has been set as to when it will be heard. Brown’s trial was originally slated to start today (Tuesday, June 15) but has been postponed pending the outcome of the appeal.
The Indiana attorney general’s office will handle the appeal for the state. Nothing will happen with the case locally in Circuit Court until the Court of Appeals comes back with a decision. Brown, meanwhile, is out of jail on a $20,000 surety bond while the case makes its way through the courts.
