Judge rules tapes admissible!!

[Guest guest]

http://www.jsonline.com/news/metro/dec03/196134.asp

Tape of bus driver allowed for trial

Man accused in abuse case could not expect privacy, judge says

By JESSICA McBRIDE

jmcbride@...

Posted: Dec. 29, 2003

The audiotape of a school bus driver yelling at a 9-year-old boy

with Down syndrome can be played at the man's trial on child abuse

charges, because the driver should not have expected privacy on the

bus, a judge ruled Monday.

" A public school bus is not a private office, " said Milwaukee County

Circuit Judge Brennan. " All day people getting on and off

that bus can overhear what he (the driver) is saying. "

Brennan reversed his own ruling of September, when he said that the

tape could not be used at the trial of Duchow, 28, who drove a

bus for Milwaukee Public Schools. Brennan had also ruled at that

time that an alleged confession made by the driver after he was

confronted with the tape was admissible evidence.

On Monday, Brennan granted a motion by prosecutors asking that he

reconsider the decision to not allow the tape at trial. He denied a

defense motion to suppress the recording.

Vince and Rosemary Mutulo, the parents of the boy, hailed the

decision as a victory for children with disabilities.

" Today marks a victory not only for our son , but for the

scores of children who are the silent victims of abuse in

Wisconsin, " they said in a news release. " The admission of this

recording into evidence stands as a landmark for protecting the

rights of the disabled in our society who cannot protect themselves. "

Last spring, the Mutulos tucked a small voice-activated tape

recorder into 's backpack because they were concerned about his

behavior on the bus. On the tape, the bus driver can be heard

saying, " Stop before I beat the living hell out of you " and " Do I

have to tape your mouth shut, because you know I will, " among other

statements.

Under Wisconsin law, a one-party consent recording is not admissible

in court if it is what is called an oral communication - a

communication for which there is a reasonable expectation of

privacy. If there is not a reasonable expectation of privacy, the

recording can be admitted into evidence.

Duchow's attorney, Kohler, said that the defense

was " disappointed and surprised (Brennan) would reverse himself. We

totally disagree with his decision, and it's scary to think of what

the definition of privacy is. "

The defense had argued in court filings that Duchow was " alone with

a child on a bus. "

" The only conceivable manner in which another would have been able

to hear is through some form of electronic or mechanical

interception. . . . Duchow's comments were made in an enclosed

vehicle. They were not made for public consumption. "

But prosecutor Tiffin argued that Duchow did not have an

expectation of privacy on the bus because " you're dealing with a

class of people who need protection and because you're on a public

bus. "

Brennan had found earlier that 's parents could " vicariously

consent " on the boy's behalf to the recording, a necessary ruling if

the recording was to be deemed a one-party consent recording.

The incident gained national attention when the Mutulos played the

tape for reporters and filed a complaint about Duchow, who was

ultimately charged with felony child abuse and disorderly conduct, a

misdemeanor.

When confronted by police, according to the criminal complaint,

Duchow said: " OK, I yelled at him and sometimes I hit him on the

leg. " He later admitted to police that he slapped twice and

threatened to tape the boy's mouth shut, the complaint says.

Shortly after Duchow was charged in May, the Mutulos held a news

conference and called for video cameras in all buses carrying

special education students.

The Associated Press contributed to this report.

From the Dec. 30, 2003 editions of the Milwaukee Journal Sentinel

[Guest guest]

Hi Laurie;

Amen! Another issue being mentioned which is also making news is

taking aim at school bullies.

Source:

http://www.delawareonline.com/newsjournal/local/2003/12/30takingaimat

scho.html

For General Distribution

From: ny McPhail

I feel that Mississippi should follow Delaware's lead in addressing

bullying in public schools (article below). Also, people involved

with special ed. should take a more active role in addressing this

problem. Children with special needs are targeted by bullies more

than any other segment of the school population. The problem can be

addressed through legislation & mandating policies without placing an

extra burden on school budgets or tax payers. ~ny McPhail

Taking aim at school bullies

A scourge of schoolchildren is now treated as a public health

concern

By MICHELE BESSO

Bear Bureau reporter

12/30/2003

The names hurt Saffer the most: He said other children call

him one-lip, one-tooth or worse. Sometimes they push or smack him.

A sixth-grader at Pulaski Elementary School in Wilmington, ,

11, said he is taunted because he was born with a cleft lip and

palate.

" Sometimes I ignore them or say shut up, " said.

When he is teased or bullied by other kids, he wants to stay home

from school, he said. His mother, Shirley Saffer, said bullying has

taken a toll on her son, making it hard for him to concentrate and

make friends.

To combat bullying and other violent behavior in the nation's

schools, the federal departments of Education and Health and Human

Services plan to launch a $3.4 million campaign next year. The

program will use Web sites and commercials to make the case that

bullying is a public health concern.

This year, Delaware's Department of Education added bullying to its

list of offenses committed on school grounds that must be reported

to the state within five days.

Though bullying long has been shrugged off or dismissed as " kids

being kids, " in recent years, it has gained national attention. It

was cited as a factor at Columbine High School, in Littleton, Colo.,

in 1999, when two students shot and killed 12 students and a

teacher. The boys committed suicide afterward.

Twenty percent of public schools reported bullying happened at least

once a week in 1999-2000, the federal Education Department said.

That is more than all other discipline problems reported. Department

statistics show kids who are bullied are five times more likely to

be depressed and suicidal than other kids.

Bullying can contribute to a climate of fear and intimidation, state

officials said. The National Center for Education Statistics

reported in 2002 that 160,000 students nationwide miss school each

day because of bullying.

The problem grades

School statistics show the greatest number of bullying incidents

typically happen in middle school, where social experimentation

really blossoms, said Robin Case, state education associate for

school climate and discipline. Students are faced with physical and

emotional changes, peer pressure and a wide range of choices.

" I think middle-school students struggle the most with bullying

because of vulnerability and differences with adolescence, " said

, a counselor at Everett Meredith Middle School in

Middletown.

" When you come into my building, you've got kids ranging in height

from 3 to 6 feet, 50 to 200 pounds, and they're all scared, "

said. She said she tells students everyone is vulnerable and can

become a target of a bully.

Case said because of the problems in those grades, the state is

directing more attention to anti-bullying efforts in elementary

schools to change students' behavior before they get to middle

school.

This is the first school year the state Department of Education is

collecting reports of bullying incidents at all schools, Case said.

So far, six of the state's 19 school districts have reported 87

incidents of bullying. The total will be available June 30. Students

who bully can be punished with detention or suspension, state

officials said.

Getting police involved

In Delaware, the School Crime Reporting Law requires all violent

felonies that occur on school property to be reported immediately to

police, then to the victim's parents and the Education Department.

Other offenses, including bullying, pornography, exhibitionism,

criminal mischief, disorderly conduct and fighting must be reported

to the Education Department within five days.

Delaware State Police handled 665 incidents in Sussex County during

the 2002-2003 school year, including assaults, offensive touching,

terroristic threats and bullying. Police made 513 arrests. In three

Kent County school districts in 2002, state police handled 560

complaints and made 310 arrests. Statistics for New Castle County

were not available because the state statistician is out

of town, state police spokesman Lt. ph Aviola said.

Since 1998, the state has had a program targeting bullying that

included assemblies, special training for teachers, counselors and

school resource officers, a school crime hot line and alternative

schools for students with disciplinary problems. State officials

said the program is working and students are beginning to realize

bullying is a serious problem.

Detective Preston , a school resource officer for the southern

part of the Indian River School District, said he thinks the

presence of school resource officers deters bullying.

This year, Gov. Ruth Ann Minner launched an initiative on character

education that also targets bullying.

Shirley Saffer said she has reported the teasing her son endures for

his cleft lip to School District officials and police, but

the bullying continues. School district spokeswoman McVey said

school officials have responded in a " timely and appropriate

manner. "

, the school counselor, said students who are bullied suffer

psychological pain that can continue to grow and never disappears.

When it is turned inward, students become depressed and self-

destructive.

Some victims may explode instead. That's when deadly school

violence, such as what happened at Columbine, can occur,

said.

" Parents may think it's not a big deal, " said. " A lot of them

say, 'Just stand up for yourself or hit back.' But it's far too

dangerous in this time with the prevalence of weapons. "