Justice tied in knots as conflicting rights collide

Judge Charles Constantine wrestles with the conflicting rights

"The law is a ass -- a idiot," said Mr. Bumble.

-- Charles Dickens, in Oliver Twist

To make a long story short, the occasion of my recalling Mr. Bumble was a hearing in Judge Charles Constantine's courtroom this afternoon, on motions brought by Atty. Mark Richards on behalf of his client who is accused of having sex with a 12-year-old girl. In all honesty, it was more complicated than it first appeared, with the conflicting rights of all three principals tying justice in knots.

The case began more than a year ago, when the girl came home "smelling of sex," according to her mother, and traces of semen were found in her underpants. The girl named Richards' client, Michael Sparr, 31, and said the deed took place in the backseat of his car.

An open-and-shut case it would appear except for a couple of pesky facts: The state's DNA tests confirmed last June that the semen did not come from Sparr. And although the backseat of his car was removed, prodded and CSI'd, it produced no evidence of sexual activity.

Ah, but there's another player: a former Kenosha County Sheriff's Deputy named Anthony Lia, 32, who admitted a phone sex relationship with the girl: telephoning, meeting, exchanging photos. Lia was "allowed" to resign when all this came out, but no charges were brought against him after a Kenosha investigation found no evidence of a crime involving him. And Racine County doesn't believe he was involved in any crime in this county -- although there are those telephone calls...

Lia is not a suspect, in fact, to anyone except Atty. Richards and his client. Richards is not sure how this can be, but his main motion would settle the matter once and for all: He asked Judge Constantine to order collection of Lia's DNA in hopes of obtaining "exculpatory evidence" that would clear Sparr by proving who the actual perpetrator was.

And that's when Mr. Bumble starting rolling over in his grave.

Defense Atty. Mark Richards and defendant Michael Sparr

Here's some of the back and forth, from my admittedly incomplete notes Judge Constantine's reluctance was made clear immediately.

Constantine: "Lia hasn't been charged with anything."
Richards: "He was having an ongoing telephonic relationship...and there is unexplained semen in her underwear..."
Constantine: "I understand the relationship."
Richards: "We can sit here and go 'this, that and the other,' but the state is playing ostrich."
Constantine: "Why do you have to put a name to that semen? What difference does it make if it's Mr. Lia or 'Mr. Smith' ?"
Richards: "It would go that much further in explaining... Without a name, my client is left to go 'huh?'
Constantine: "Do I have the authority to do this? There's no basis for it. It becomes a slippery slope. Will we go through her cellphone and ..."
Richards: "The state says no crime, but this individual at a minimum had contact. Both (the girl and Lia) lied about their contacts together."

At this point, Lia (left) -- who was sitting the courtroom -- was brought into the conversation. But he had no attorney present, and made clear repeatedly that he didn't want to get one. This "nebulous concept of due process" weighed on Judge Constantine, who said to Lia:

Constantine: "I'll let Mr. Richards rail on this at a later date... By inference he is suggesting that the semen came from you. If the sample came back and matched, it would give the state little choice but to charge you with sexual assault. You are the target of this motion."
Lia: "I don't plan on talking to an attorney. I just want this to get over as quickly as possible."
Constantine: "Well, what does that mean? Nobody's stopping you from going to Mr. Richards and giving him a sample. I'm not going to order it. I don't think I can unilaterally order it. I don't think I have the authority to do so."
Richards: "I've told him I don't want to talk to him without him having a lawyer."
Constantine: "He's been admonished to talk to an attorney."

At this point, presumably in hopes that Lia gets an attorney or gives up a DNA sample, another hearing on the motion was set. But the hearing wasn't over.

Richards wondered, "Why isn't the state asking the girl?" about discrepancies in her statements -- since the DNA has been proven to belong to someone other than the person she, and the state with its prosecution of Sparr, is accusing.

Assistant District Attorney Jennifer Tanck-Adams (left) pointed out that the "Rape Shield Act" is a limiting factor. "We're not able to ask how many sexual partners she's had."

Constantine then role-played with Richards how the conversation might go; he answered as the girl might -- "She says, 'I don't remember,' " to which Richards asked, "I'm trying to refresh your memory," but they both were smarter than a fifth grader and didn't get anywhere.

Tanck-Adams pointed out that the girl is old enough to have had "sex education class" and familiarity with "the media" so her knowledge of sex could have come from there, as opposed to ... "Well, that's for the jury to decide," Richards said.

Richards: "This reminds me of the blind men looking at the elephant. For some reason, the state hasn't asked her."
Tanck-Adams: "She's not on trial. That's what Rape Shield is all about."
Richards: "I'll issue a subpoena" to be heard in closed court. "The gist of our whole defense is that she's accusing him (Sparr) to cover up with someone else. None of his semen was in her pants, or in the back seat of his car."
Constantine: "Where does it end?"
Richards: "We're not asking for 15 other people, we're just asking for Mr. Lia -- and for her -- to tell the truth."
Constantine: "My inclination is to allow some inquiry in that regard, to obtain the alternative source of the semen."

The hearing concluded with Constantine "giving Mr. Lia another kick in the can to consult with an attorney."

The next episode will take place March 30 at 2 p.m. The Journal Times' Janine Anderson offers her solid report of the hearing here.