The world is a dangerous place, not because of those who do evil,
but because of those who look on and do nothing.

~~~ Albert Einstein

Sunday, April 13, 2008

The Silverman's

The Silverman family isn't your average family. At one time it consisted of 4 year old Mikel,and his 4-month-old sister Keylee, along with his father Doron and mother Heather. It could have been the all around perfect family- except that Doron is a convicted child molester- having molesting a 5-year-old girl when he was 13. Even that wouldn't have prevented them from being a normal family... but like so many other cases, this one gets worse- starting with what -allegedly- happened to Mikel.

During Memorial Day weekend 2006, Batya Silverman reported that he asked her to perform a sex act on him. When she asked him where he learned it, the boy and told her that "Daddy did it." according to Batya Silverman.

Batya is Doron's sister, who has also accused him of molesting her as a child. Because of the suspicion of new sex crimes involving Mikel, police opened an investigation and were looking into the charges when Heather -allegedly- burned the families home down, with the two children inside, killing both of them. She'll be headed to court on charges stemming from the arson and murder on April 28.

With the children dead, and no victim it was left to the court to decide whether statements Mikel make could be submitted into evidence.
During Silverman's December 2006 trial, Mikel's statements were admitted under an exception to the hearsay rule. Hearsay is second-hand testimony and is not allowed in most cases.

But Silverman appealed his conviction, and the higher court ruled in his favor.
The appeals court found that Montgomery County Common Pleas Judge Michael T. Hall erred when he found that because Mikel was dead, the court did not need to determine the boy's competency before including the statements.

Under Ohio law, a child under the age of 10 is presumed not competent to testify until proven otherwise. A judge will generally have a hearing, with the child present, to determine the child's ability to understand and remember facts and tell the truth.

The appeals court relied on a 1994 Ohio Supreme Court decision, Ohio vs. Said, which requires an additional finding of competence before such hearsay statements may be admitted under evidence rules. A court "cannot determine the competency of a child through consideration of the child's out-of-court statements alone," the high court found.

The prosecutors want the appeal overturned, and seem ready to take this to Supreme Court, because without the statements by Mikel- they have nothing to go on other than incriminating statements during interviews with detectives by Silverman himself.
In limited cases, prosecutors argue, the competency of a child unable to testify should be proven by evidence of the circumstances when the statements were made and evidence from persons familiar with the child.

Malocu said last week that, though he was not required to file a brief with the Supreme Court, he would consider doing so.

And so it gets down to a possible question of how the relationship with the aunt was- whether it's possible that the child would have confided in her, would have made the statement at all- and whether or not the court should find her to be a believable witness.

Silverman's lawyer is doing the best scumbad defender defense dance he can, and is holding firm to his position:
"This whole thing is about rules," Malocu said. "We have constitutional rights and we have fundamental fairness. It's the state's burden to prove it within the rules, whether constitutional rules or evidentiary rules.

Perhaps someone should remind him that it would likely be possible to question Mikel about his statements, would likely be possible to back up the state's claims- had he not be conveniently murdered at the hands of this lawyer's client's wife.

Could have been the perfect family... except that they were so far from it.