DATE: Monday, October 20, 1997              TAG: 9710200072

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY LEDYARD KING, STAFF WRITER 

                                            LENGTH:  137 lines

GILMORE'S RECORD ON CRIME INCLUDES SOME COMPLEX CASES

They spent hours bracing her for the day she would testify about being sexually abused by her father and uncle.

But counselors and prosecutors could not help this 12-year-old girl during the preliminary hearing. She spoke so unintelligibly that the judge asked if this normally articulate girl was retarded.

Her two sisters were no better. One curled into a fetal position on the stand. The other cried throughout her testimony.

Faced with three traumatized - and undependable - witnesses, Henrico County prosecutors opted for a plea bargain. Their opinion: It was better to convict the two men on a lesser charge than risk losing the case in open court.

That's what happened five years ago, according to the prosecutor's office.

The cases made headlines this month. At debates and news conferences, Democrat gubernatorial nominee Donald S. Beyer Jr. said these were among the 35 sex crime cases involving children that he believes his Republican opponent, James S. Gilmore III, fumbled during his six years as Henrico County commonwealth's attorney.

Beyer says these plea agreements and light sentences put sex offenders back on the street and show that Gilmore is soft on crime. The campaign identified about 100 cases involving sex crimes against children.

Of the 35 cases they focused on, 34 featured either plea agreements or sentences that called for less than one year of actual jail time. The 35th case went to trial. Prosecutors lost. The defendant, according to the Beyer campaign, was convicted of raping an 8-year-old six years later.

But interviews with legal experts suggest that these cases are more complex than Beyer implies. Because evidence in these cases is spotty, successful prosecution hinges on a child's ability to coherently testify in court, they said.

The Virginian-Pilot and The Roanoke Times looked closely at the three cases Beyer noted in a press release handed out at the Richmond debate, which was televised statewide. Two of those cases he cited during the debate.

Beyer highlighted the three cases because each involved a written plea agreement and called for a sentence that was less than a year of incarceration.

In each case, Gilmore's office said, the decision was made to seek a plea agreement because of emotional difficulties that prevented children from testifying.

In two cases, including the one involving the three sisters, prosecutors feared the children's shaky testimony would cost them a case in open court.

In the third, the parents of an 8-year-old victim who had moved to Texas refused to let the girl come back and testify because they thought it would traumatize her.

Gilmore's office slipped on one of the three cases. The office agreed to a five-year suspended sentence for a child molester on the condition that he complete a sex offenders' program through the local health department. But prosecutors never followed up when the convicted man, Earl Andrew Collins, failed to do so.

A judge might have ordered Collins to serve his full five-year prison sentence. A clinician with the health department wrote that she was concerned about Collins' refusal to acknowledge his problem.

``As long as he is in denial of his sexual and emotional problems,'' Cindy Terraciano wrote in a 1991 memo, ``he is not amenable to therapy and is at risk of reoffending.''

Four years later, Collins was convicted of sexually molesting a 4-year-old girl.

``In my review of the (34) cases, it's the one thing that slipped through the cracks,'' conceded Howard C. Vick Jr., Gilmore's Republican successor as Henrico County commonwealth's attorney.

A former state attorney general, Gilmore has tried to claim the law-and-order credentials crown in the race by reminding voters how he helped Gov. George F. Allen's push to abolish parole and how he spent six years putting Henrico's criminals behind bars.

Beyer is using his analysis of these sex molester records to show that Gilmore is not entitled to that claim.

In one case referred to by Beyer, prosecutors obtained a guilty plea six years after the crime when the boy finally told of the abuse during counseling sessions, said Vick, a former federal prosecutor who is backing Gilmore's run for governor.

In another, prosecutors settled for a lesser conviction after the 12-year-old victim turned out to be a prostitute who told the judge that she could use her body as she saw fit, Vick said.

Gilmore said his office handled some 10,000 cases of all kinds during his six years as Henrico's top prosecutor. Most cases, like those involving sex molesters, were handled by his lieutenants, he said.

But there were times Gilmore got personally involved in cases. He often touts his record of trying - and winning - 13 murder cases in Henrico.

Gilmore last week scolded Beyer for using the child sex cases to question his gubernatorial credentials.

``It's just wrong to use children to further a political fraud,'' he said.

Specifics on the three cases:

The 1992 case against the uncle who was indicted on two counts of aggravated sexual battery on two of his three nieces. He received a 14-year suspended sentence and served 11 months in jail, according to Henrico County court records. (The uncle, now 48, is not being named because it could identify the victims.)

The victim/witness coordinator for the Henrico prosecutor's office said she believed it was in the girls' best interest not to pursue the case in Circuit Court following their shaky performance at the preliminary hearing.

In an inter-office memo that coordinator Shelly Shuman-Johnson wrote in response to Beyer's charges, she said she also remembers fearing that defense attorneys would add to the girls' trauma by aggressively questioning them in circuit court.

A 1989 case against Peter William George, then 55, who pleaded guilty to charges that he had exposed himself to and had oral sex with an 8-year-old girl. Under a plea agreement, he received a 25-year suspended prison sentence and was ordered to serve 90 days in jail.

Current Henrico Commonwealth's Attorney Vick said it was the best sentence they could hope to get because the girl had moved to Texas and her parents did not want her to come back and testify.

The 1990 case against Collins, now 40, who received 60 days in jail after pleading guilty to taking indecent liberties with a 10-year-old girl his wife was taking care of.

Collins originally was indicted on two counts: exposing himself to a child and sexually abusing her by licking and spanking her buttocks. But prosecutor Sharon Will described the victim as a fragile and reluctant witness.

``We were afraid we'd lose it all,'' Will wrote to Vick, explaining her rationale for pursuing the plea bargain.

Under the deal, Collins received a five-year suspended sentence on the condition that he complete a sex offenders' program, which he did not.

But there's no guarantee that Judge George F. Tidey would have sent Collins to jail based on his failure to finish the program.

``I wouldn't want to speculate,'' Tidey said Wednesday.

Tidey declined to characterize the job that Henrico prosecutors did under Gilmore's watch when it came to sex offenses against children.

But attorney L. Willis Robertson Jr., who represented Collins in 1990, said he didn't notice anything out of the ordinary.

``I wouldn't consider them harder or softer than any of the other (prosecutors' offices),'' he said. < ILLUSTRATION: Graphic

AT ISSUE: Democratic gubernatorial candidate Don Beyer, far right,

has charged GOP candidate James Gilmore with being soft on crime

while a prosecutor in Henrico County. Beyer has cited light

sentences in some cases involving sex crimes against children. KEYWORDS: PLEA AGREEMENT PLEA BARGAINS SEX OFFENDERS SEX

CRIME CHILD MOLESTER ELECTION GUBERNATORIAL RACE

VIRGINIA CANDIDATE

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