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Will girl's rape-claim reversal clear teen? page 2
U.Va. Innocence Project and child advocacy group trying to free teen they say was wrongfully convicted of rape

 Prosecutor Olsen
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RELATED STORY: Attorney: System needs safeguards
Date published: 2/5/2009


The girl was a special-education student at the time of the incident and was classified as "borderline" mentally retarded, her mother said. She has had noticeable physical problems with both her gait and eyes since birth, physical challenges her mother attributes to a form of cerebral palsy.

The boy has no physical handicaps. He was enrolled in special-education classes early in his schooling but resisted staying in them, according to his father, Edgar Dulaney. School records from Spotsylvania and Stafford counties show the boy consistently failed the annual Standards of Learning tests.

The boy's IQ is only seven points higher than the girl's, according to information from Sousa and records from the juvenile justice system.

Those facts are germane because a court transcript shows Olsen prosecuted the case from the standpoint that the girl lacked the ability to consent to a sexual relationship.

"The commonwealth's theory in this case was physical helpless [sic] and mental incapacity," Olsen said during a September 2008 Stafford Circuit Court hearing in which the boy's then-attorney, Joseph T. Brown of Fredericksburg, sought to win his release.

The boy's parents had hired Brown after Rafferty made an unsuccessful appeal to introduce the girl's recantation.

The judge denied Brown's motion, saying his court did not have jurisdiction to decide whether the boy should be released. The family then contacted the Innocence Project.

Sousa and the attorneys now representing the boy said Olsen met the girl, but never interviewed her, investigated her abilities or looked into her background. The attorneys and the boy's father also said neither Olsen nor Rafferty investigated or presented to the court any information about the boy's limitations.

Upon receiving custody of him, Department of Juvenile Justice workers assessed the boy's intellectual abilities and evaluated him psychologically.

They noted that he "lacks normal assertiveness skills," according to information provided by his current attorneys, Deirdre Enright, director of the Innocence Project at the University of Virginia Law School, and Andrew K. Block Jr., legal director of JustChildren, a program of the Legal Aid Justice Center in Charlottesville.

The girl has been described in evaluations as "overly aggressive with poor impulse control."

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Key dates in the former Aquia Harbour teen's case. June 4, 2007--Encounter between girl, 14, and boy, 15, at Aquia Harbour. June 7, 2007--Boy formally charged with rape, abduction, and breaking and entering. June 18, 2007--Stafford Commonwealth's Attorney's Office notifies boy's parents of its intent to prosecute him as an adult. June 28, 2007--Defense attorney Denise Rafferty assigned to case. Aug. 22, 2007--Boy pleads guilty to rape, breaking-and-entering charges. Abduction charge is dropped. Sept. 19, 2007--Boy sentenced, ordered to complete sex-offender treatment program and register as sex offender. Nov. 24, 2007--Girl tells her mother, Michele Sousa, she lied about the incident. Nov. 28, 2007--Michele Sousa contacts an attorney for advice. December 2007--Defense attorney Rafferty learns the girl recanted her story. March 2008--Rafferty, the girl and her mother appear in juvenile court on defense motion to set aside verdict. Judge denies it for procedural reasons. July 2008--Attorney Joseph Brown, hired to represent the boy, petitions juvenile court judge to find error in fact in case, based on the recantation. Judge denies motion. Sept. 19, 2008--Brown's appeal of juvenile court ruling heard in Stafford Circuit Court. Judge denies motion, saying his court does not have jurisdiction. December 2008--The Innocence Project at the University of Virginia Law School and JustChildren of the Legal Aid Justice Center agree to represent boy. Jan. 22--Innocence Project Director Deirdre Enright and JustChildren Legal Director Andrew K. Block Jr. send letter to Department of Juvenile Justice Director Barry R. Green asking him to release boy.

A Dec. 8 Virginia Crime Commission report shows that the vast majority of law-enforcement officials surveyed--with the exception of prosecutors--support changing Virginia's system of assigning cases against juveniles.

Currently, by statute, teens charged with certain felonies are automatically transferred to adult court for trial. For the other charges, including those brought in the Stafford County case, the prosecutor has the discretion.

On the question of giving circuit judges the ability to send juveniles back to juvenile court, 93 percent of chief public defenders, 84 percent of circuit judges, 77 percent of court service unit directors, 53 percent of juvenile-court judges and the director of the Department of Juvenile Justice supported the move. But 81 percent of prosecutors oppose it.