Why was our Son Convicted?
Provided By Allen N. Cowling
One of the truly saddest cases I have ever seen
regarding a conviction was in Virginia. I was originally contacted by the parents of a son who had been
in prison for five years, convicted of sexual abuse of a minor.
His mother was the first to contact me. She stated that
she had been to three attorneys and each had told her it was obvious her son was innocent, but they
could not take the case because they could not "go up against the judge." By the time the
initial conversation ended, the entire fault appeared to be prosecutorial and judicial
misconduct.
Arrangements were made for me to meet with the family
and review all material specific to the young man's trial and conviction. I was given a preliminary
hearing transcript, a trial transcript and many other documents and, as I began to read, both
prosecutorial and judicial misconduct completely and totally disappeared. They just did not exist. In
my 31 years, (at that time), I have never seen a more honorable judge than the one who decided this
case, nor did I see one incident where the prosecutor did anything more than their job. So, what
happened?
As I read the transcript of the preliminary hearing, I
discovered there were only two people who offered any testimony whatsoever; the mother of the child
accuser and the child accuser herself.
As I continued through the trial transcript, I also
discovered that only two people testified. Again, the mother of the child accuser and the child. There
was absolutely no testimony at all on the part of the defense.
In comparing the testimony between the preliminary and
the trial, the child's mother told the court, without objection, what she had been told by her
daughter when the allegation was first reported. That testimony was not allowed at trial.
The accused originally had a court appointed attorney.
His family retained an attorney, but terminated his services immediately following the preliminary
hearing and then retained another attorney to defend their son at trial.
During the preliminary hearing, the child's mother
testified first, followed by her daughter. Her daughter had been spending the night at the home of the
accused and his children when the allegations were alleged to have taken place and, the following
morning, her daughter reported the alleged incident to her. During the mother's testimony, she
stated that her daughter told her that when she was at the home of the accused the night before, the
accused called her into the bathroom, where he was sitting naked on a toilet, and asked the child to
get him a beer. Allegedly, the child came back to him and stated that she did not know which was
"his" beer and he told her, it didn't matter, just bring him one of them. Shortly
thereafter, the child was called back into the bathroom, where the accused was still sitting naked on
the toilet, and he asked her to take one of his children out of the bathroom. The bathroom story was
very detailed and very specific, at least to the mother. The problem was, the child never mentioned
anything about the accused being naked and in any bathroom, much less, sitting on a toilet.
At trial, the mother was not allowed to testify as to
what her daughter actually told her, so her testimony basically amounted to the state of mind her
daughter was in when she arrived at home that morning. When the child testified, again, not one mention
of the accused being naked in the bathroom. Even when prompted by the prosecutor, the child was unable
to respond. Obviously, the prosecutor remembered what the mother said regarding the accused sitting
naked on the toilet when she testified at the preliminary, so she asked the child at trial, "Did
he ask you to do anything else?" to which the child responded, "No." The prosecutor
asked, "Did he ask you to get him anything?" to which the child stated, "No." The
prosecutor asked, "Didn't he ask you to get him a beer?" and the child responded,
"Oh, yeah, he did." The prosecutor asked where he was when he asked her to get him the beer
and the child stated he was somewhere in the house, but she did not remember where, but does remember
that he was "walking around and was fully dressed."
Since the child's mother testified before anyone
else and gave a detailed accounting of what she had allegedly been told by her daughter, but since the
daughter never mentioned facts the mother had sworn to, the question becomes, did the child simply
forget? There is no way that a 9-year-old female, seeing a man she had known for about two weeks prior
to spending the night at his house, naked and sitting on a toilet, not once, but at least twice, is
going to forget that, if it actually happened. Since the mother was the only one to provide that
information and her daughter was unable to, the question then becomes, whose story was it? Fairly
obvious. It was the mother's story and not the child's.
On top of this, there were major inconsistent statements
made by the child between the preliminary hearing and the trial. Now, keep in mind that the attorney
who represented the accused at trial was not the same attorney who represented him at the preliminary
hearing, but it was painfully obvious that the last attorney never even bothered to read the
preliminary hearing transcript. Not one word was ever mentioned regarding inconsistent statements. As a
matter of fact, the only questions the attorney asked the child during cross-examination at trial were
questions that accomplished nothing more than validating what she had already said.
As I said, the accused did not testify and there was not
one witness put on by the defense. To make matters worse, in an argument, the defense attorney even
went so far as to tell the Court, "While we admit that the actions of the defendant were
inappropriate that night, we do not believe they satisfy the requirements in the statute for which the
accused was being tried." The defense attorney, with absolutely no defense whatsoever, even went
so far as to admit that the actions of his client were inappropriate.
As I continued going through the documents, I discovered
a report from a psychologist who had evaluated the accused, following trial, as a part of the
pre-sentence report and, amazingly, there were at least five documents he referred to that the defense
never got; interview transcripts, witness statements, etc. Not wishing to make a mistake, I went to the
local courthouse and researched the case file. I found no Motion for Discovery on the part of the
defense and not one of the documents the psychologist's letter referred to. It was clear that no
one who had represented the accused had ever filed any Motion for Discovery.
Rather than take a chance that missing documents could
be fabricated, I sent the accused's parents to see their son's former attorney. I requested
that they show him the letter from the psychologist and tell him that they appeared to be possibly
missing a file. Since the state is a one-party recording state, I had them audio tape the conversation.
The attorney told them that all the documents referred to were in the prosecutor's office and they
never did get copies. Only then did the parents ask him if he filed a Motion for Discovery. He told
them "We don't do that in this town." "We just go to the prosecutor's office and
review their case file, but we cannot take anything."
Although there is more than enough evidence to support a
Petition for Writ of Habeas Corpus, based on ineffective assistance of counsel, that was delayed until
such time as all material the defense was entitled to in discovery is obtained. The hope is that the
combination of everything will be enough, not only to reverse the conviction, but to have the
prosecutor dismiss the case.
In 31 years, prior to my involvement in this matter, I
have never seen any case where there was absolutely no defense at all and not a shred of anything
presented in support of the accused's innocense.
Amazingly, the accused's parents only knew their son
had been in prison for five years for a crime he never committed. They had no idea as to what went
wrong and were lashing out at everyone, like the judge and the prosecutor. Fact is, the only story the
judge heard during the entire trial was the child accuser and nothing at all on the part of the
defense. Regardless of how ridiculous the child's story may be, it's the only story and
conviction could have been the only result.
It is my belief that, after all discovery is obtained,
the accused will represent himself Pro Se, file a Petition for Writ of Habeas Corpus and, hopefully,
end his nightmare. This case was truly one of the worst that I have ever been involved in.
As in this case, you cannot accomplish anything until
you determine, first, what is wrong. Blaming everyone, in a panic, does nothing more than frustrate and
leads to nothing positive, nor any solution. The solution is simple; find out who to yell at before you
start yelling at everyone. You may be yelling at the wrong person.
The above reflects only a very short version of what was
actually found and what was accomplished in this case, but the message is the same. First, determine
what went wrong, develop the proper strategy for correcting it and remain focused on the issues. As was
seen in the above, how can anyone expect to defend against a false allegation of abuse when they have
no discovery, no idea as to who the prosecutor will call to testify, no idea what the prosecution will
present as evidence, no knowledge of major inconsistent statements made by the child accuser and not
one speck of evidence presented to support the innocence of the accused. There simply is no defense and
no alternative other than conviction.
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Cowling Investigations, Inc., a False Allegation Defense Website. For an explanation of how we assist
our clients who have been falsely accused, see Our Expertise, We Can Help. If you have been
falsely accused, see What to Do - What Not to Do When Falsely Accused.
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