National Aphasia Association Update on the Case of Ruby McDonough

Wendy J. Murphy (left) and Ruby McDonough (right)

The NAA would like to share information about this precedent setting case in MA. We are proud to have been involved from the onset and invited to sign on as an “Amicae Curiae” in the amicus brief filed by the National Disability Rights Network (NDRN) in the McDonough appeal.

An “amicus brief” is a document filed in a case by someone who is not a party to the case but is interested in the outcome. National organizations sometimes file an amicus brief in a case that has the potentially of having an impact on other persons who are similarly situated to one of the parties to the case. It is an opportunity to inform the court about broad policy issues that it might consider in deciding the case.

This case involves a crime victim who was denied an opportunity to have the crime prosecuted due to a communication disability that the court failed to accommodate. Other crime victims with communication disabilities in Massachusetts might be affected by the result in this case, and more broadly courts in other states might be influenced by the outcome. Given the potentially broad impact that this case might have on other crime victims with communication issues, an amicus brief is an important vehicle for informing the court about reasonable accommodations that courts can provide which make it possible for individuals to testify despite their disabilities.

Through the unwavering commitment of her attorney, Wendy J. Murphy, and the support of NAA friends including Jerry Kaplan and Paul and Judy Dane, Ms. McDonough has retained her rights. This has ensured that disabled crime victims are entitled to accommodations to ensure their equal access to Justice in criminal cases. In particular, this is a strong, positive step in advocacy for the more than 1 million Americans living with aphasia.

The NAA thanks all those involved especially Ms. Murphy and NAA President Emeritus, Alan Bandler.

Below is Ms. Murphy’s summary of the events of the case for your information:

Earlier this month, Ruby McDonough was in a Massachusetts court fighting for her rights as a crime victim with a disability. Ruby, who has aphasia, was sexually assaulted in 2009 by a male nurse’s aide at the nursing home where she has lived since suffering a stroke more than ten years ago.

As with many aphasic persons, Ruby has trouble communicating in narrative style. But she had no trouble telling her family, the staff and the police exactly what happened.

The man accused of violating Ruby was charged with sexually assaulting Ruby in early 2009. During pretrial proceedings his attorney asked that Ruby be subjected to a competency hearing. A court-appointed expert evaluated Ruby and found her to be mentally competent, though noted that she would need accommodations to help her communicate at trial, such as being allowed to answer in yes and no fashion, use gestures and images, and being allowed sufficient time to reply when more of a narrative was necessary.

The court did not allow ANY accommodations, and Ruby was made to testify at her own competency hearing without any help. Thus, when defense counsel asked things like “tell us what happened”, Ruby struggled. At one point, defense counsel stood between Ruby and the perpetrator and asked whether Ruby could “see” the man who abused her. Clearly use of the word “see” in such circumstances is unfair, and a fully abled person could simply have responded, “no, I can’t SEE him because you’re blocking my view” – but he is right there behind you”. Ruby knew the attorney was trying to trick her, so she became frustrated and emotional. The court ultimately found her not competent to testify.

This is when I became involved as Ruby’s private attorney. A lawyer from the Victims’ Rights Law Center had been assigned to represent Ruby at the competency hearing, but that attorney filed no pleadings, objected to nothing that occurred during the hearing and never once argued that Ruby’s rights under the Americans With Disabilities Act were being violated by the court’s refusal to afford Ruby any accommodations. Some advocacy groups as a matter of policy refuse to aggressively represent the interests of crime victims, which is why it is critically important for a victim to ask around and to get feedback before agreeing to utilize the legal services of certain “victims’ rights” groups.

I filed a special appeal for Ruby to the Massachusetts Supreme Judicial Court, arguing that Ruby’s rights under the ADA had been violated, and that the violation caused her to be illegally adjudicated incompetent. After a hard fought battle during which the prosecutor and defense both opposed our effort, we finally prevailed in August, 2010. The court not only ruled that Ruby’s rights had been violated, it established brand new rules to ensure that the rights of all disabled crime victims will be better protected. The landmark decision was a first of its kind court ruling and makes clear that persons with disabilities not only have a right to things like wheelchair ramps to ensure they get IN to the courthouse, they have a right to accommodations that will enable their “full and equal” testimonial and participatory rights as WITNESSES in criminal cases. Given that persons with disabilities are disproportionately victimized by criminal violence, in part because perpetrators anticipate they will not be held accountable – especially if the victim has a communication disability – this new court ruling means that many more victims will be allowed to testify and criminals will be better deterred from selecting vulnerable individuals to be their victims.

After announcing its new decision, the Supreme Judicial Court sent the case back to the trial court where Ruby’s rights had been violated. When we went back to the trial court in October, we expected the judge to rule that Ruby would now be allowed to testify, but instead the judge announced that Ruby would have no such opportunity because the perpetrator, an illegal immigrant, had been sent to Miami for immediate deportation. The judge also refused to simply reverse the illegal ruling that had labeled Ruby “incompetent”.

I decided to file another appeal to the state supreme court, after which we went back again to the trial judge in November, hoping that this time the perpetrator would be present so that Ruby could have her day in court.

To our delight, the perpetrator showed up, and the judge completely changed his attitude, finally acknowledging not only that Ruby was entitled to all sorts of accommodations, but also that she would indeed be allowed to testify at trial. The judge essentially ruled that because the basis for the earlier decision on competency had failed to recognize Ruby’s capacity to testify with accommodations, she had a right to take the stand at trial and utilize all reasonable accommodations to facilitate her communications as a witness against her assailant.

The trial date is now set for January 12, 2011.

Needless to say, Ruby is very excited that her dignity has been restored and her voice will be heard. Win or lose, Ruby’s strength and perseverance in this case have helped ensure equal justice for all persons with disabilities.

We are grateful that members of the aphasia community were in court with Ruby during the last two court hearings. We hope to see support for Ruby again on January 12.

The aphasia community has been extremely helpful in more ways than I can say in this brief summary.

Thank you – and Happy Holidays.

Wendy Murphy

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