In this case, how could a trial in which all the facts and evidence overwhelmingly supported the defense, have ended up so badly for the accused? The answer is simple. A very good defense attorney attempted to handle a child sexual abuse case in the same manner in which he defended other criminal cases. That does not work, will not work and certainly did not work here.

The attorney in this case, without question, is an excellent and caring criminal attorney. During trial, he was successful in about 98% of the objections he made and those objections were proper and made in a timely manner. He had an excellent relationship with the judge and his cross examination techniques were nothing short of perfection, including the two young female accusers. There is also no doubt that he strongly believed the client was innocent.

Well prior to trial, and after a great deal of discussion, we opted for a bench trial. Putting a man charged with 25 separate counts of child sexual abuse, based on allegations from two young girls, in front of a jury ran far too much risk of a conviction based on emotion rather than facts. The judge would be far more likely to reach a verdict based on the facts presented.

The trial was actually divided into two parts. The first part was one day in August, 2007. It was then continued to December, based on a request by the defense, after it was learned that one of the State's witnesses was not available, however, during that one day, opening statements were made by both the State and the defense and one witness began to testify.

During opening statements by the defense, the defense attorney told the judge that he expected the testimony of the two young female accusers to come in credible. That concerned me greatly because, if it did, the defense would have a serious problem. These cases are all about credibility. Who has it and who does not. In this case it was a he said / they said so, obviously, it was much more dangerous for the accused especially since he was facing two accusers and not just one.

Based on the statement by the defense attorney, I prepared a document carefully explaining the necessity of questioning the two accusers thoroughly and properly so that their testimony would not come in as being credible. Much of that document was based on many prior inconsistent statements each child had made prior to trial. Those inconsistent statements were not simply things that were forgotten, they were huge to the defense. In addition, I also talked with the attorney on the telephone, prior to trial, and again expressed the importance of getting detailed statements from the children during his cross examination.

During trial, the State called the two social workers who had interviewed the young accusers. As the first social worker testified, I repeatedly passed notes to the attorney, asking him to question her as to even just the very basics:

• What are leading and suggestive questions and what is the danger is using them when interviewing a young child who is making an allegation of sexual abuse?

• Explain the danger of multiple interviews to young children making an allegation of child sexual abuse.

• What does the current literature say about using multiple interviews?

• What does the current literature say about video recording interviews with children who are making an allegation of sexual abuse?

• What was your reason for not recording the interviews you conducted with the children?

The attorney did not ask one of those questions, nor did he even bring up any inconsistency in the children's prior statements. He told me he wanted to "wait" until the State put on their expert, then he would use those questions.

When the State brought the second social worker, who conducted the "second" interview with the young girls, again I impressed the importance of dealing with her and again, he wanted to wait until the State put on their expert. Again, the second social worker came across as very credible and she went completely unchallenged.

The two social workers that testified, as stated, went unchallenged and both had a great deal of credibility with the Court based on statements the judge actually made following their testimony and in explaining his verdict.

The State's "expert" was simply another social worker with an MS degree. Her testimony did not hurt the defense. She simply talked generally about overall abuse issues. One of the last things she said was, an abused child can give accurate details about abuse. That is absolutely true and it is also something that had never happened in this case. There is a world of difference in a child simply saying, "He put his private in my private," "He put his tongue on my private," "He put his hand on my private" and, "He made me touch his private." Those are simply statements. They are not details. It is easy for a child to make a flat statement, but they cannot supply details to events they have not experienced.

Prior to the two young girls taking the stand, I talked with the attorney again and expressed the need to question the girls thoroughly. I recommended he start with the first allegation they could remember, get all the details and come forward, addressing each occasion. What was he wearing? What were you wearing? What did you say? What did he say? What happened to your clothes? What happened to his clothes? Exactly what did he do? How did he do it? Did it hurt? Where was the other child? Did she say anything? How long did it last? What happened when it was over? What position were you in? What position was he in? Was anyone else in the house? Where were they? And on and on.

Children are normally coached prior to their testimony, but usually the "validators" working with them do not coach them on the specifics of the abuse itself because "they" believe it happened and "they" believe the child will be able to talk about it. That is the only area where the defense can possibly win and that is by showing the children are not capable of providing details about the abuse itself because it never happened.

Thankfully, the defense attorney did listen to one request I made. I asked him to have the children "demonstrate" the position they were in when "He put his private in her private." The first little girl got down off the witness stand, walked in front of the judge, sat down on the floor, with her back at about a 45 degree angle, her legs straight out and her feet about 12 inches apart. The accused was a 300 pound man. Based on the child's own description of the position she was in, it would have been physically impossible for him to have done what she alleged. The second little girl said she was laying "flat," but quickly said she was on her tummy.

Other than having the child position herself and asking a few questions, neither child was pushed for any details whatsoever. One thing that did come out was, all abuse happened in the accused's living room, either in his chair or on the floor. It never happened when he was bathing them, and he had frequently. It never happened when he changed them, and he did frequently. It never happened at the swimming pool he took them to, and he did often. It never happened inside any of the dark movie theaters he was in with them, nor did it ever happen in any vehicle he was riding in with them. No, he chose to molest these girls, for a period of 4 years, in the living room of his home while his wife took a nap in their bedroom, which actually adjoined the living room.

At the end of the case, the defense attorney's closing arguments covered nothing about the physical impossibility of the allegations being true. It covered no prior inconsistent statements and it fell far short of what I had hoped for. The defense attorney never once asked me for any input at all in his closing. Had he, I would have been more than happy to have provided him with all inconsistent statements made by the accusers and a complete argument as to why the allegations could not have been true.

My client never should have been convicted:

• The key to this case is the credibility of the accusers. One of the most difficult things in the world is to tell two young girls they are not being truthful about allegations of sexual abuse they have made, but the fact is, that is exactly what happened in this case.

• You do not need to consider anything prior to the court testimony of the girls; no prior interviews, no inconsistent statements, nothing.

• The Court found both young accusers credible, in some part, because they were able to identify specific things such as furniture in the house, the fact that Aunt Libby took naps and many of the things they did with Uncle Don, such as swimming, movies and the Dollar Store.

• The fact that the girls could supply those details, without question, proves that they have the ability to recall facts of events they have actually experienced. What they were never able to do was provide any details as to their claims of sexual abuse, beyond that of "Uncle Don stuck his private in their private, stuck his tongue on their private, put his hand on their private and had them touch his private." They stated that went on for a 4-year period.

• The problem with sexual abuse cases is, most people quickly jump to the conclusion that it happened, just because the accusing child was cute and said it did. Based on that fact alone, innocent men are sentenced to prison for years.

• This case was the prime example of that fact. Clearly, there was precise and exact evidence before the Court that, had it been viewed properly, could have only resulted in a not guilty verdict on all counts.

• As stated, there is absolutely no question that each girl can recall a great deal and, again, that is based on the fact they lived and experienced it. The problem is, their testimony was not really considered.

• When the defense had AC show the Court the position she was in when Uncle Don put his private in her private, she sat down on the floor, her back was at about a 45 degree angle, her legs were straight in front of her with her feet apart approximately one foot. As she was in that position, the defense asked again, "That was how you were sitting when Uncle Don put his private in your private?" and she stated it was. That would have been physically impossible and, the fact is, she "made a guess" in response to a question she thought she needed to answer, but in reality, it could never have happened. A child who is making a false allegation of abuse cannot provide details to events that never happened, although they try and, had Don Smith ever put his private into her private, that was not the position she would have told the Court she was in.

• Next, consider the testimony of HB. She clearly stated that Don Smith put his tongue on her private and moved it around, "While she was sitting in a recliner with him" and "Her pants or shorts were down around her knees." Again, physically impossible and could not have happened, but as with AC, when she was asked a question, she believed she needed to provide a response, she did the best she could do and that was one thing she had not been coached on prior to trial.

• In that both children gave exact and specific responses to something that could not have happened or been true, then the question becomes, why would they do that and why should anything else they say have any credibility? They do that because they have trained for months on what it is that they are expected to say, so they try.

• Yes, these children supplied, and were capable of supplying details, but not of the abuse they claimed happened. Again, no question that each can supply details, but look carefully at the manner in which they discussed their alleged abuse. There was no detail. It was simply generic and based on conversation after conversation they had prior to trial. Coaching a child is easy over a period of time and usually successful, however, there are some things that even the "smartest coaches" forget to prep the child on and that is specific details about the abuse itself. To the coach, they do not need to simply because they believe the allegations are true and they believe the child can give an accurate account.

• Had these girls been sexually molested for years, as they claimed, they would have been able to provide the same details they were able to provide about Uncle Don's home and their visits with him.

• In addition, it would appear that the Court did not take into consideration the testimony that Uncle Don bathed these girls, a perfect opportunity to molest them without being caught, yet there was no allegations there. There were no allegations when he had the girls in a dark movie house. There were no allegations when he had them alone in his vehicle. There were no allegations when he had them at the swimming pool. No, Uncle Don waited until his wife took a nap, in room only a few feet away, then he took off his pants, pulled the girls clothes down to their ankles and molested them on the floor, in plain sight of his wife had she walked in. The last thing a pedophile wants to do is be identified and get caught.

• Based on the statements of each child during trial, it was impossible for any fact finder to find a verdict of guilty based on evidence. Unfortunately, so many people would rather err on the side of safety of a child, but the facts are still the facts, regardless of how cute the accusers were on the witness stand with their stuffed animals, and that is, neither were telling the truth about being sexually abused by Don Smith.

• Don Smith should have received a directed verdict of not guilty on all counts.

The fact is, the State's professionals were seen as exactly that by the Court and went completely unchallenged, thereby giving the State's case credibility. The failure to go after details in the children's allegations and then closing arguments that honestly dealt with nothing really beneficial to the case, cost this man his freedom. I watched as the deputies restrained him from even hugging his son and then escorted him out of the courtroom. Here is a family, totally destroyed by false allegations of child sexual abuse because even an experienced trial lawyer did not deal with the defense properly or adequately.

In a conversation with my client's son, after his father's conviction, I apologized. He said, "You did all you could with notes and requests." That is no consolation as I begin the process of trying to get this conviction reversed. In a final conversation the defense attorney had with my client's son, he said, "It is within the rights of the fact finder to ignore evidence."

At the expense of a client's life, I learned a valuable lesson. Waiting until trial to find that a defense attorney will not listen to anything can be a fatal mistake. In reality, the signs had been present all along. The conversations the defense attorney and I had pretrial were limited, to say the least. The key to winning these cases is teamwork and, without it, the results can easily be the same as seen in this case. As to me, when I see this same thing happening in future cases, regardless of how impressed I might be with the attorney, my recommendation will be for the client to change attorneys immediately. No, it is not my intention to be overly critical, but when someone's life hangs in the balance, there simply is no room for mistakes or ego. Regardless of how good a criminal attorney may be, or thinks they are, in these cases if they fail to attack the State's witnesses and if they fail to properly cross examine the child accuser, getting specific, precise, exact and absolute details of each and every incident of the alleged abuse, they can expect a conviction.