116 3rd St SE
Cedar Rapids, Iowa 52401
CEDAR RAPIDS - A judge will not dismiss the case against a Starry Elementary School teacher whose trial starts Monday in Tama County on charges of failing to report sexual abuse of three children.
Mark Meyer, lawyer for Diane Graham, 59, asked for the dismissal based on her testimony last year in juvenile court during 15-year-old Logan McMurrin's sexual abuse trial.
Graham testified that the two 5-year-old girls and one 6-year-old girl didn't tell her they had been sexually abused by McMurrin, a school volunteer in her classroom who was convicted.
Meyer argued that Graham testified for the prosecution, and the judge accepted her testimony. The prosecution was vouching for her credibility by having her testify but now wants to take the opposite view and say she isn't telling the truth. If the prosecutor thought Graham wasn't being truthful in her testimony, he had a duty to inform the court, Meyer said.
Assistant Linn County Attorney Andrew Powers argued the prosecution didn't take a position on this issue in McMurrin's trial. The judge didn't rule as to her testimony, whether it was a 'finding of fact or conclusion of law.”
The prosecution in the McMurrin trial presented one child who said she told Graham about the sexual abuse, Powers said. The prosecution merely was presenting the entire case.
Sixth Judicial District Associate Judge Casey Jones said he would speculate that the prosecution called Graham to say the class volunteer had access to the children and to describe the room, where the incidents occurred. However, he didn't understand why the prosecutor asked her whether the children told her of the abuse because the prosecutor was aware of her answer from a deposition.
Jones did say that Judge Angie Wilson didn't make any credibility finding as to Graham or her testimony. She didn't mention Graham's testimony in her bench ruling, which convicted McMurrin.
Jones said he wouldn't dismiss the case at this time.
Graham is charged with failing to report child sex abuse as a mandatory reporter, a simple misdemeanor. If convicted, she faces up to a $625 fine or up to 30 days in jail.
Jury selection starts at 9 a.m. in Tama County District Court. The trial, which was was moved out of Linn County because of publicity, is expected to last all week.
The prosecution will be allowed to show the videotaped St. Luke's Protection Center interviews of the three children, but the girls also will testify in person so the defense can cross-examine them.
A criminal complaint states two Starry students in Graham's class, on two occasions, told Graham about incidents involving McMurrin.
Graham, who is on administrative leave, failed to report the children's disclosures to law enforcement or the Department of Human Services, according to the complaint.
As a teacher, Graham is a mandatory reporter of child abuse. Iowa law requires any licensed school employee to report abuse against a child younger than 12 within 24 hours.
Graham and the Marion Independent School District also were sued last February by eight parents, claiming their children were subjected to sexual abuse and psychological and emotional injuries and pain.
The lawsuits were settled before trial in November for $1.8 million. The Marion Independent Community School District paid parents of three students $600,000 each to settle three of the lawsuits against Graham and the district. The fourth lawsuit also has been settled, but details aren't yet finalized.
l Comments: (319) 398-8318; email@example.com