Sane Nurse Ruled Part of Prosecution Team for Brady Purposes
The question recently faced by the Tenth Circuit Court of Appeals in McCormick v. Parker was unique: whether a sexual assault nurse examiner (SANE) is a member of the prosecution team for Brady purposes?
Robert Claude McCormick was put to trial in January 2007 in Bokchito, Oklahoma for sexual assault of a child who was seven and eight years of age at the time of the alleged assaults. The victim was the child of a woman with whom McCormick had a relationship. According to the victim, the sexual assaults stopped after she went to live with her grandmother in Denton, Texas when she was 11. McCormick was convicted and received two life terms.
The victim first told a Texas child services worker about the sexual assaults shortly after going to live with her grandmother. In January 2002, she repeated these allegations to a child services investigator. Child protective services referred the matter to the Denton County Sheriff’s Office. She again repeated her sexual assault allegations to s sheriff’s investigator.
SANE Nurse Conducted Sexual Assault Examination
The child services investigator then took the victim to the Texoma Medical Center in Denton where she was interviewed by a SANE nurse named Carolyn Ridling who conducted a sexual assault examination.
Based on the Ridling examination, the State of Oklahoma pressed charges against McCormick. Prior to McCormick’s trial, state prosecutors listed Ridling as a witness but did not disclose to the defense any information about her professional credentials.
During the jury selection process, several prospective jurors expressed reservations about reaching a guilty verdict based solely on the testimony of a child victim; that they would prefer to have the victim’s testimony corroborated with medical evidence. These concerns certainly influenced the prosecutor to inform the selected jury in its opening statement that Ridling would probably be its “most important corroborating witness.”
Is Carolyn Ridling a Fraud?
The problem with this claim is that Carolyn Ridling is a liar; a forensic expert fraud.
Ridling told the jury that her examination of the victim revealed two tears in the child’s hymen. She told the jury that “the only way you can get these kind[s] of tears is from some kind of penetration.” She then authenticated three photographs the prosecution offered into evidence of the victim’s vaginal and anal areas.
On cross examination, Ridling told the jury in response to a defense question that although she could prove that “penetration occurred,” she could not positively state how it occurred.
Expert Gave False Testimony at Multiple Trials
Through this kind of testimony, Ridling exhibited her professional qualifications to the jury as a SANE expert. In fact, in response to a prosecution question about her credentials, Ridling stated:
“I have continuing ed you have to have, because I’m certified by the Attorney General’s office in the State of Texas to do exams on adults and pediatrics. And in order to do that, you have to have 50-something hours every two years—which I have more than that, but you have to have continuing ed to keep it going.”
That was patently false testimony.
Carolyn Ridling Not as SANE Nurse
Following his conviction, McCormick obtained an affidavit from the Texas Attorney General’s Office stating the Ridling was not a certified SANE nurse in Texas when she testified at his trial. McCormick also secured an “agreed order” from the Texas Board of Nursing that Ridling “misrepresented” herself as a SANE nurse between October 2006 and April 2007 to “patients, court officials, and the public.”
Disciplined for Misrepresentations
The order contained this frank admission by Ridling: “In April 2007, I did erroneously respond to questions on cross-examination that I was certified by the Texas Attorney General’s office.”
False Testimony in Texas Trials
In addition to this damning evidence, McCormick’s defense lawyers also secured a letter from a Texas defense attorney who stated that Ridling had given similar false testimony in three Texas trials—two of which resulted in convictions in Grayson and Fannin Counties.
In conjunction with these cases, McCormick obtained a ruling by the Texas Court of Criminals Appeals reversing the Grayson County conviction based on Ridling’s false testimony about her credentials; and he also obtained a copy of a letter from the Fannin County District Attorney’s Office advising defense attorneys that Ridling had testified falsely in a criminal trial conducted in the county.
There was no evidence that Oklahoma prosecutors were aware of Ridling history of giving false credential testimony, much less aware of the false credentials testimony she provided to them.
The Brady Rule and Exculpatory Evidence
The Brady Rule is well-defined: “… the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady also imposes a constitutional duty on the prosecution to disclose material impeachment evidence, even if the prosecutor has no “actual knowledge of the existence of the evidence at issue.” The Tenth Circuit, and the other federal circuits, have held that this duty is premised on the constitutional rule that the “prosecution” includes “not only the individual prosecutor handling the case, but also … the prosecutor’s entire office, as well as law enforcement and other arms of the state involved in investigative aspects of a particular criminal venture.”
Is a SANE Nurse Part of the Prosecution Team?
The question of whether a SANE nurse is a member of the prosecution team was one of first impression for the Tenth Circuit. The appeals court noted that it had found only one other court—a California appeals court—which found a Brady violation in the prosecution’s failure to disclose a video tape of a sexual assault exam. That state court concluded that the exam was investigative in nature because the “major purpose of the examination was to determine whether the allegation could be corroborated with physical findings.” That, said the state court, made those responsible for conducting the examination part of the prosecution team.
Similarly, Ridling examined the alleged child sexual assault victim at the behest of law enforcement trying to determine the accuracy of her sexual assault allegations. Significantly, Ridling kept a record of the examination to help her prepare to testify for the prosecution at a later date. Taken together, this prompted the Tenth Circuit to conclude:
“Under these circumstances, we agree that Ridling was part of the prosecution team for Brady purposes. Accordingly, we must impute her knowledge of her own lack of certification to the prosecutor. And because the prosecutor didn’t disclose Ridling’s lack of certification to the defense, we conclude the prosecution suppressed evidence.”
The appeals court, however, issued this caveat: the conclusion that Ridley was part of the prosecution team was based solely on the fact that she had “acted at the request of law enforcement in the pre-arrest investigation of a crime.” The court added:
“We do not hold today that all medical professionals treating survivors of sexual abuse are automatically members of the prosecution team for Brady purposes. Nor have we been asked to decide whether an expert who had no pre-charge investigatory role may be a member of the prosecution team for Brady purposes. In short, our holding is limited to the facts before us.”
Should be Prosecuted for Perjury
Carolyn Ridling, we believe, is not an aberration. We think there are other SANE nurses, and so-called “forensic scientists,” who not only embellish their credentials and experience but misrepresent and manufacture evidence to secure convictions for the prosecution in child sexual assault cases.