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.

You have accessed one of the many pages here at the 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.