By Ed Brock
A man accused of molesting a 10-year-old girl is free because the judge at his trial threw out the case on a technicality.
The prosecuting attorney in the case of Kenneth Bernard Woods calls it a case of "judicial activism" and says he is upset that a jury never got to consider the case. The judge says the prosecutor failed to prove where the crime allegedly occurred or as she calls it "venue." The judge said the prosecutor had the opportunity to do so and didn't, and therefore the law required her to dismiss the case.
Last week Clayton County Deputy Chief Assistant District Attorney John Turner was the man trying to put Woods in jail. He called the victim, who is now 12, to the stand and asked her what happened.
The victim testified that, in June 2003 when she was living with her mother and Woods in Fairway Point subdivision. She said that Woods had molested her more than once. When Turner asked her where that happened the girl responded "In my mother's room."
When Turner rested the state's case, something happened that surprised him.
"What was highly unusual about this was that usually at the end of the state's case if the defendant wants to make a motion for a directed verdict, that's when he makes the motion," Turner said. "In this case the defense attorney didn't do that."
Defense attorney William Turner then presented his case, and when he was done Clayton County Superior Court Judge Deborah Benefield sent the jury out of the room and informed John Turner that she did not think he had proved "venue." In other words, he had not presented evidence to establish, beyond a reasonable doubt, that the crime had occurred in Clayton County.
Benefield said that in 99 percent of the cases she hears the defense make a motion questioning whether the prosecution has presented enough evidence for the case to go to the jury.
"In order for me to be prepared for that motion I take copious notes," Benefield said.
In those notes, Benefield said, she makes a notation in the margin when she thinks venue has been proven. Two or three years ago the Georgia Supreme Court changed the rules to require that venue be proven beyond a reasonable doubt as opposed to just by slight evidence.
"At the conclusion of the case I knew that venue had not been proven," Benefield said. "Venue has to be proven beyond a reasonable doubt."
Turner said he thought the girl's statement that the molestation had occurred in her mother's bedroom, and the fact that the girl's mother lived in Clayton County, proved the venue. He never asked the girl in what county the crime occurred because she was probably too young to understand about counties and because she seemed very nervous on the stand.
"I was trying to get her on and get the specifics and get her off as quickly as possible," Turner said.
But Benefield said the fact that the girl said the molestation occurred in her mother's room was not sufficient because at one point the family had lived in Fulton County. Also, the victim's grandmother had testified that the victim had told her that Woods had begun molesting her before the family moved to Clayton County.
Turner said if there was any question about venue it was a question for the jury to ask. It was too technical a point for the directed verdict of acquittal.
"Nobody throws a case out over venue," Turner said.
Benefield said that after she told the attorneys that venue had not been proven William Turner made a motion for the directed verdict. She gave both attorneys two hours to review the case and then brought them back to argue, and she still decided that venue had not been proven.
And she only had the defense motion for a directed verdict to consider, Benefield said. Turner could have moved at that time to reopen the state's case in order to prove venue.
"All they had to do was call a witness back in and ask did this happen in Clayton County," Benefield said.
Turner said that by the time when Benefield made her ruling he thought the evidence was closed and he could not make such a motion.
"She never verbally afforded that opportunity," Turner said.
Benefield said her ruling was not discretionary but was required by law.
"If there's not enough evidence to go to a jury it doesn't go to a jury," Benefield said.
Under the law if Fulton County authorities gathered evidence about an incident occurring in their jurisdiction they can still charge Woods. But he can never be retried in Clayton County on the same charges.
"He's gone, end of story," Turner said. "My thing is the victim and the fact that the jury didn't have a chance to consider the merits of the case."
The victim's grandmother declined to comment for the story and the mother could not be reached.
William Turner said Benefield's ruling was correct and pointed out that both sides were give access to the transcript of the victim's testimony before Benefield made her decision. And he said that, after talking to six of the jurors after the ruling, he was confident that his client would have been freed, anyway.
"Of those six, four told me that if they had to vote on it then and there they would have voted not guilty, one said 'I don't know' and one said guilty," William Turner said.
Turner added that his client has gone back to work and is living with his family, including a 6-month-old, in College Park.