Cris Barrish

The News Journal

The child sexual abuse case against a du Pont family heir who raped his young daughter was weak, and prosecutors offered an appropriate plea bargain that spared him prison while convicting him of a felony sex crime, Attorney General Beau Biden said Thursday.

"This was not a strong case, and a loss at trial was a distinct possibility," Biden wrote in a letter submitted to The News Journal.

Biden also defended Superior Court Judge Jan Jurden, who noted in her sentencing order that the wealthy father "will not fare well" in prison. Biden said the judge "exercised sound discretion based solely on the merits of the case before her" and doesn't allow a defendant's "wealth or social status" to influence her decisions.

Jurden has been criticized and has been the subject of threats because she gave Robert H. Richards IV probation after he admitted to fourth-degree rape of his daughter. Jurden's 2009 ruling followed recommendations from Biden's office. Much of the ire against Jurden stems from her notation in her sentencing order about Richards' fitness for prison, which she listed as a mitigating factor.

She also noted as mitigating factors impacting the sentence that Richards "has significant treatment needs that must be met" and has "strong family support."

Richards, who turned 48 Thursday, is the great-grandson of du Pont family patriarch Irenee du Pont and the son of Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm. His case gained publicity last month when his ex-wife, Tracy, filed a lawsuit seeking damages for the rape of his daughter from ages 3 to 5, and accusing him of admitting to sexually abusing his toddler son.

The lawsuit states the admissions about his son came while he was on probation and were included in reports submitted to the judge. Police investigated claims about the boy in 2010 and did not file charges, but said the investigation is reopened in the wake of the allegations in the lawsuit.

Lawyers for Tracy Richards, who identified her children in the civil lawsuit, said they cannot discuss the criminal case, including whether her daughter was prepared to testify, the mother's knowledge or feelings about the plea deal, and whether she attended the sentencing. The mother is prohibited from commenting because of limitations put in place this week by the judge handling the case, her lawyers said.

"They have for the time being stopped Tracy from responding to reports like AG Biden's," said Raeann Warner, one of Tracy Richards' attorneys. "And they have stopped her lawyers and anyone working with them from commenting."

Biden would not agree to an interview, but broke his two-week silence about the child sex case in the letter to The News Journal. He defended fellow Democrat Jurden, who last year sought an appointment to the state's highest court, and for the first time provided details about why his office gave Richards a plea bargain with a recommendation of probation.

Biden's office initially indicted Richards on two counts of second-degree rape, charges that carried a minimum 20 years in prison. The indictment said the abuse started when his daughter was about 3½ and ended less than a couple of months before she turned 5.

The second-term attorney general, who often touts his prosecution and imprisonment of child predators and those who view child pornography, is up for re-election in November.

Biden wrote that the prosecutor, Renee Hrivnak, whom he did not name in his letter, cut the deal to ensure that Richards was convicted as a child sex offender. Hrivnak recommended probation for Richards, something Chief Deputy Attorney General Ian R. McConnel said last week he would have preferred she not have done. He said "it would have been my hope that she would have asked for open sentencing."

Biden defended how the case was handled.

The girl was the "only eyewitness" besides Richards, who did not agree to be interviewed by police, Biden wrote. There was no "medical or forensic" evidence, Biden wrote, to corroborate the child's account to the Children's Advocacy Center at Alfred I. du Pont Hospital for Children in Rockland, which has experts who interview children in abuse cases.

"The defendant did not make a statement to police, although he made an ambiguous apology to the victim's mother. A conviction would have required 12 jurors to find unanimously, beyond a reasonable doubt, that the crime had occurred," Biden wrote.

Richards' daughter gave consistent accounts about his abuse, according to the arrest warrant filed by New Castle County police Detective JoAnna Burton.

First, she told her grandmother, who reported to the state's Division of Family Services hotline that the girl, in graphic terms, said her father digitally penetrated her, the warrant said. Her grandmother, Donna Burg, told police she took the girl into the bathroom and asked where he touched her. The grandmother said the girl repeated her claim, and said "daddy said it was our little secret," and later said, "I don't want my daddy touching me anymore," the warrant said.

The arrest warrant also stated that Richard's wife told the officer she confronted her husband, whom she was still married to at the time. He said the penetration of his daughter "was an accident and he would never do it again," the warrant said.

At the Children's Advocacy Center, the girl told the child specialist who interviewed her that her father was "never going to come back home' because, again in graphic terms, her father digitally penetrated her two times, the warrant said. She told the interviewer that she told her father it hurt and he apologized, the warrant said.

According to the lawsuit filed by his ex-wife, Richards said during a polygraph taken while on probation that he abused his daughter at least four times. The lawsuit also said the girl told her pediatrician about his father's penetration of her.

Instead of taking the case to trial, though, Biden's office offered Richards a plea to fourth-degree rape, which carries no mandatory prison time and has a range of zero to 30 months under state sentencing guidelines. Biden noted the guidelines are zero to 22 months for defendants who accept responsibility.

Richards' defense attorney at the time, Eugene J. Maurer Jr., recently called the offer "more than reasonable."

"In recognition of the weakness of the case, the assigned prosecutor offered a plea and sentence recommendation that guaranteed the defendant would be required to register as a sex offender, participate in court-ordered sex offender rehabilitation therapy and to have no contact with the victim and any other child under the age of 16," Biden wrote. "A loss at trial would have rendered any of these restrictions impossible."

The perils of a trial in child rape cases involving very young children can be prohibitive, Biden wrote, noting that such victims often provide differing accounts of the abuse and are "on the cusp of being capable of relating an event in detail. The younger the child, the less detailed the account is going to be."

Without physical evidence, "The sum total of the evidence is often the word of the child against the word of the alleged perpetrator." The child "must testify in a sterile courtroom in a room full of strangers."

Biden added that before a child can even testify, a judge must deem them competent and decide they know "the difference between right and wrong." Children who clear that threshold then face "the additional trauma by having to recount the abuse in front of the very person who committed it" usually several months to a year after the crime.

Jurden's sentence of eight years in prison, suspended for eight years of probation plus treatment and no contact with children under 16 "was made after careful deliberation with due regard of all the circumstances," Biden wrote.

Delaware Public Defender Brendan O'Neill and defense attorney Thomas Foley also wrote a letter defending Jurden on behalf of the Delaware Association of Criminal Defense Attorneys. The lawyers said Jurden's sentence was a normal outcome for a fourth-degree rape conviction.

"Suspending jail time for probation is frequently the sentence imposed by all of the judges on the Superior Court for first-time offenders convicted of offenses of this nature," the defense lawyers wrote.

O'Neill noted in an interview last week that he had not seen a judge note as a "reason not to send someone to jail" a concern, as Jurden did in Richards' case, that the criminal would not fare well in prison, even though he and his deputies have often argued that a defendant was too ill or frail for prison.

In the letter Thursday that he and Foley wrote, they questioned why The News Journal did not state in earlier stories that Biden's office "was required to confer with the victim's family before extending the plea offer that resolved the case." The letter also noted that a presentence report, which has not been released publicly, would have recorded whether thevictim's family had objections "to the resolution negotiated by the prosecution."

Joseph S. Grubb, chief New Castle County prosecutor, said the case file shows that Hrivnak discussed the plea offer of fourth-degree rape with Tracy Richards on June 8, 2008, about three weeks before the plea was entered. Grubb said the file reflects how Tracy Richards felt about the deal, but he would not disclose the information because Richards has not commented publicly.

Maurer said he did not think Tracy Richards appeared at the sentencing, and Grubb said the file does not reveal whether she was notified or appeared.

Grubb said victims in sex crime cases are notified by mail and phone about the sentencing, and invited to attend and address the judge, or have the prosecutor read a letter from them to the court.

Contact senior reporter Cris Barrish at (302) 324-2785, cbarrish@delawareonline.com or on Facebook.