Archive for Saturday, August 6, 2005

Appeals court: 13-year-old’s rapists must be resentenced

Judge deemed to have abused discretion in giving probation

August 6, 2005


The Kansas Court of Appeals on Friday found a Douglas County judge was too lenient when she gave lightened sentences to two men who raped a 13-year-old girl.

The court found Judge Paula Martin's sentences in the cases of William N. Haney and Brian K. Ussery were "an abuse of judicial discretion" and ordered that the men be sentenced again.

The decision brought tears of relief to the victim's mother, who helped lead an unsuccessful effort to vote Judge Paula Martin off the bench last fall.

"This to me says that I've been justified through all that I've gone through for my daughter," the mother said. "We were criticized so harshly during election time. For all the attorneys that say we were wrong, this says that we were right."

One of Judge Martin's supporters responded by saying that even though Martin's critics may be right about this case, they were wrong to seek her removal from the bench after an unpopular decision.

Members of the Justice for Children Committee wanted to remove Martin in Novermber because of her sentencing in the rape of a 13-year-old girl. While efforts to remove Martin failed, an appeals court reversed her decision.

Members of the Justice for Children Committee wanted to remove Martin in Novermber because of her sentencing in the rape of a 13-year-old girl. While efforts to remove Martin failed, an appeals court reversed her decision.

"I'm not going to take issue with the court of appeals on their judgment, and I'm sure that the judge will take their opinion into account as she looks at the case again," said lawyer Dan Watkins, who led a group that supported Martin in the November retention election. "There's two issues here: Was the decision right under the law, number one, and number two, if it was wrong, does that mean the judge should be removed? Their solution was that she should be removed. We thought that was not appropriate."

Decision details

Haney, a Lawrence resident, and Ussery, of Tonganoxie, were convicted of having sex with the intoxicated teen in June 2003 after a night of drinking at a central Lawrence apartment. In Kansas, sex with a child younger than 14 is automatically classified as rape, and it normally carries a minimum penalty of about 13 years.

But Martin cited a law that allows judges to depart from the state sentencing guidelines and ordered each to five years of probation with an underlying sentence of 30 months.

Martin said one of the reasons she lightened the sentences was that a 17-year-old co-defendant, and the primary instigator of the crime, had been sentenced to 30 months in a juvenile facility after entering a plea to attempted rape.

Haney and Ussery were 18 at the time and were tried as adults.

But the appeals court said it was impermissible for Martin to consider the juvenile co-defendant's sentence when setting the 18-year-olds' sentences. To compare the two, the court wrote, is to "attempt to circumvent the legislature's policy decisions" to treat adults differently from juveniles.

Less harm?

The appeals court also found Martin used "totally flawed" reasoning in finding that the victim's proximity in age to the suspects caused her to suffer less harm than the typical rape victim.

"A 13-year-old victim is no more capable of consenting legally, to sexual activity with an 18-year-old than with a person who is 25 or 40," the court wrote. "Furthermore, the trauma to the underage victim is potentially as great."



The appeals court also rejected Martin's finding that the absence of physical force or trauma resulted in less harm to the victim.

"There is nothing within the record ... to indicate the harm suffered by this particular victim was less significant than the harm normally associated with statutory rape," the court wrote.

The victim's mother said her daughter has had a series of emotional and psychological difficulties since the incident and is now living in a long-term psychological care center.

"She still feels very much victimized by the system," her mother said.

Record 'inadequate'

According to testimony, the girl told the men before they had sex with her that they had to use condoms. Martin cited that reported comment and the girl's previous drinking experience as evidence that she was a "willing participant."

"The victim's experience or inexperience with alcohol is irrelevant ..." the court said. "The fact that there is no evidence of threats, force or weapons in the commission of the crime is relevant, but the relevance is obscured in light of the victim's totally intoxicated condition."



Still, the court said it could find "no error" in Martin considering the girl's participation as a factor for the lightened sentence. That's partly because prosecutors failed to provide a transcript of the trial to the appeals court that could have settled contradictory evidence.

The appeals court called the record of the case "woefully inadequate" and "thin."

Dist. Atty. Charles Branson said Friday that he couldn't comment on the decisions, but he noted the appeals were prepared and filed while his predecessor, Christine Kenney, still was in office. Kenney declined comment.

In conclusion, the court said in the two cases, "We conclude no reasonable person would have departed from the presumptive sentence to such an extent when considering only the valid departure factors stated within."

Ussery's and Haney's defense attorneys did not return phone calls seeking comment.

Branson said the normal procedure would be for the case to return to Martin's court for resentencing.

Martin revoked probation for Haney in April, based on a long list of probation violations in the past year. He is now serving a 30-month prison sentence.

Ussery remains on probation.


lovely1 12 years, 9 months ago

All their info is listed on the KBI website. Mr Haney is already back in jail as of july29. it says and Mr Ussery still lives in tonganoxie..maybe he'll be reunited w/ his buddy in the Lansing pen soon.

Bobo Fleming 12 years, 9 months ago

we are painting the roses red...we are painting thr roses red.

justacountrygal1932 12 years, 9 months ago

So, a young girl making straight A's, on the honor roll, and in the gifted program is a girl raised badly?

girl 12 years, 9 months ago

a girl drinking at the age of 13 is a girl raised badly

enochville 12 years, 9 months ago

I am so glad that the appeals court agreed that the sentencing was too light in this case. I unsuccessfully tried to vote Paula Martin off the bench this past election.

james bush 12 years, 9 months ago

Arminius, nice recap. I agree. Too bad the girl was raised the was she was.

Tammy Copp-Barta 12 years, 9 months ago

So Dan Watkins thinks we should remove judges when there is an unpopular decision? WHATEVER .. when a judge doesn't ACT like a judge then they SHOULD be removed. And this wasn't the first time Judge Martin has had problems.

While I don't know anyone in this battle, I have followed it in the papers and I say KUDOS to the Appeals Court for overturning this decision and slapping her on the wrists. Although I think more should be done to her. Maybe a continuing education class :)

To the mother I say good job .. but start mothering that child and KNOW where she is. At 13, my daughters butt would have been home in bed!

Jamesaust 12 years, 9 months ago

I always thought that the sentences were too light but had confidence that if there was error that this would be corrected on appeal. It was.
We do not expect judges to be perfect. Nor is any judge I've ever known. That's why everyone must answer to someone. I voted to retain Martin and would again. Anyone who thinks Martin is some sort of "softy" needs to spend some time sitting in the visitor's gallery in her courtroom. Please note for those whose reading does not extend to the actual Court of Appeals decision, the appellate court (a) did not say that a lesser sentenance was unwarranted just that this sentence was too lenient, (b) upheld Martin on other aspects, and (c) had plenty of critical words for the prosecution.

Also, keep in mind that this is the same Court of Appeals that in 2004 said that there was nothing wrong with sentencing a mentally deficient 18 year old (by 7 days) kid who had oral sex with another boy (14) being kept in the State home to 17 YEARS in the penitentiary even if state law would have set a sentence of 15 MONTHS if the minor had been female instead. In my opinion, the Court of Appeals does not have much logical or moral authority to be quite so critical.

brooklyny78 12 years, 9 months ago

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brooklyny78 12 years, 9 months ago

one can only wonder how many other kids these losers have enticed. them only getting a slap on the wrist is bazaar. all this other crap about the girl being willing is insane, 18 year old men had intercourse with a 13 year old child. bottom line, that's the issue, not her being drunk and at a party. parents are clueless these days anyways, they always have been.

cristBwithU 12 years, 9 months ago

What is wrong with us? Here is a rather large group of people blaming the victim,and her mother. It sickens me...Not one question about the mens' mothers (and fathers) that failed to raise good outstanding young men.Where are the fathers of these men?

When it comes down to it you have five men against a young girl. This is a crime.

babygirl 12 years, 9 months ago

You know I have seen her down town all the time and when I used to hand out down there she would show up drunk and high. I'm not saying the guys were right doing that but she was bragging about it down town after it happened. She just didn't want her mother to find out that she had been having sex for a while. She goes down town asking guys for sex. So really it is as much her fault as there's. Nobody should point all the blame to the guys.

nana 12 years, 9 months ago

I believe that equal parties should be blamed. That girl knew she was too young to be drinking and hanging around older guys. She knew right from wrong just like the guys that took advantage of what she was soliciting. What I think is that this wasn't the first time that she got drunk and definitely not the first time that she had sex. Her mother found out about it and the only way she can make them guys pay was to say they raped her and of course the girl went along with it because she probably didn't want her mom to know that this isn't the first time she gotten drunk and had sex. In my opinion, it doesn't matter how old you are, but how you act, you put yourself out there in a way to be taken advantage of, expect that it's going to happen. Now the guys knew what they were doing wasn't right and they should be punished too, but for them to receive a hard punishment for something that was plainly consensual, is wrong. That girl needs help just as well. She need to know that she is a little girl and that she can't go out and hang with the big guys. Her mother needs to be blamed as well, as should the guys mother. But, there is only so much that they can do anyway, because if they want to do it, they're going to do it, regardless! It don't matter if she had good grades and was doing all sorts of school activities, the fact is she had placed herself in the company of men and dranked right along with them, are you telling me, she doesn't know what's right? Because if so, maybe she has a mental capacity such as Michael Rayton.

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