Ruby McDonough, 63, was allegedly sexually assaulted by Kofi Agana, a Ghanaian national who worked as an aide at the home where McDonough was a resident. In February 2009, McDonough claimed Agana sexually assaulted her at Sudbury Pines Extended Care. Outside the courtroom, she pointed to her genitals, breasts and other areas of her body when Murphy asked her to describe where Agana had touched her.
Agana, 48, then living in Fitchburg, was arrested and charged with two counts of indecent assault and battery on a disabled person older than 60 and one count of assault and battery on a disabled person older than 60.
Ruby was declared incompetent by a Framingham District Court judge in April and then denied a hearing to reverse that ruling. Wendy Murphy filed a petition yesterday with the Supreme Judicial Court to force Framingham District Court to reverse the incompetency ruling for Ruby McDonough.
In April, Framingham District Court Judge Paul Healy Jr. ruled that McDonough was incompetent to testify against Kofi Agana. Agana, a nursing home aide, was accused of sexually assaulting McDonough in February in a Sudbury nursing home. McDonough has expressive aphasia, which affects her ability to communicate through speech or writing.
A court psychiatrist said McDonough was competent, but Healy would not let McDonough testify in a hearing to determine if she was competent with the help of an interpretive aide. He ruled she was incompetent. Murphy appealed that ruling, and the SJC ruled that Healy erred by not letting McDonough have an aide during the hearing. It sent the matter back to district court.
McDonough’s attorney, Wendy Murphy, argued her client has the right to have the incompetency ruling against her overturned. In a heated exchange with Greco, Murphy said the court illegally ruled her client incompetent to testify because it did not provide accommodations for her disability.
Murphy asked the SJC to order a Framingham District Court judge to either vacate the "illegal competency ruling" or to hold a new competency hearing so McDonough can "demonstrate that she is mentally competent and has legal capacity to give expression to her experiences in a court of law," Murphy said.
A hearing was scheduled for Oct. 28, when McDonough was going to testify with an aide. But Judge Robert Greco ruled the matter was moot because Agana is in federal custody and is most likely going to be deported because he was in the country illegally from Ghana.
Murphy wrote in her petition that Greco should be ordered to hold a hearing because his not holding the Oct. 28 hearing denied McDonough’s "request for restoration of her dignity as a presumptively competent person."
The decision regarding McDonough’s ability to testify comes after conflicting decisions set forth last year. Another judge had initially declared her incompetent to testify, a ruling struck down by the Massachusetts Supreme Judicial Court on the grounds that the decision constituted a violation of her rights.
The most recent decision found that McDonough was in fact competent but that a disability would prevent her from answering questions in a courtroom setting. The source reports that McDonough suffers from expressive aphasia, a condition that limits her verbal ability to give answers to anything more complicated than a yes or no question.
The new decision may ultimately be moot, as Agana is currently in the custody of U.S. Immigration and Customs Enforcement and is likely to be deported.
McDonough, who has a condition called expressive aphasia, can answer yes or no to questions, but she cannot give longer accounts of the attack, Murphy said. She can also express herself through gestures, Murphy said. In response to yes or no questions asked by Murphy, McDonough indicated she was upset she wouldn’t be able to testify. In a rare full sentence, she also said, "I can tell you about him," referring to Agana.
McDonough is a competent witness, said Murphy, who insisted she and her client were in court primarily to see the incompetency ruling overturned.
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