In a second trial the defense focused much more on the accused’s long history as a man who took good care of children.
The accusation: That Earl often fondled the genitals of a girl at the day care he and his wife operated in Bigfork, Montana.
The charges: Sexual Intercourse Without Consent and Sexual Assault.
The possible sentence: 100 years in prison.
The defense David Marshall presented: David and his Montana co-counsel, Peter Leander, tried this case twice, since the first trial ended in a hung jury. In the first trial, the defense focused on the child complainant’s inconsistencies, the improbable nature of much of her testimony, and the sheriff’s shoddy investigation, with particular emphasis on poor investigative interviewing of the complainant. In the second trial, the defense included much more about Earl’s long history as a man who took good care of children.
The result of the second trial: acquittal on both counts.
What helped win the case: Having Earl testify in the second trial. This helped the jury get to know him and care about him.
For a year, people in Montana’s Flathead Valley followed the child molestation prosecution of Earl Hunt. I was one of his lawyers. I have his permission to share his ordeal and his triumph.
Earl was 73 years old. He had six grown children and had been around young people throughout his life. Since the mid-1990’s he had helped his wife, Nancy Hunt, run a daycare in Bigfork, Montana, an idyllic mountain town not far from Glacier National Park. He was known to the children there as “Papa.”
C, a girl, attended the daycare for three years until her mother decided to care for her and her younger brother at home. C was eight and a half when she left the daycare.
Four days after her last day at the daycare, C found herself at a slumber party, in a bedroom with three older girls. The girls were telling scary stories. C told the girls “Papa” had touched her private spot. One of the girls told C they would have to report that to their mothers and rejected C’s plea that the mothers not be told.
Three days later Det. Rod Meyers of the Flathead Co. Sheriff’s Office interviewed C. He found her account of genital fondling by Earl Hunt very credible. He told Earl so two days later, when he interrogated him.
Earl answered all Meyers’ questions. Very little in what he said could be used to provide any support at all for C’s accusation. He had never before been accused of any kind of child abuse or sex crime. He and Nancy had an excellent reputation for the care they took with children. Nonetheless, Earl soon found himself in jail, facing two felony counts of molesting C.
Earl was released to await trial. Det. Meyers had little time to devote to the case. When he did spend time on it, he discovered problems with C’s account. She said Earl had fondled her genitals many times, and always during “quiet time” at the daycare. Quiet time was always conducted in a small room, with about a dozen children and one adult monitor. The younger children napped, but the older ones stayed awake and watched a video. Why had no other child ever noticed Papa molesting C?
Det. Meyers also learned that another detective in his department, Bruce Parish, had interviewed C about seven months before her accusation against Earl. Det. Parish had interviewed C on suspicion someone else had molested her. C had told Det. Parish she had not been molested, and that investigation had been closed. But C had told Det. Meyers she had not known it was wrong for a man to touch her genitals until the girls at the slumber party told her so. Hadn’t she learned about “bad touch” from Det. Parish? And why hadn’t she told Det. Parish that Papa was molesting her?
Det. Meyers re-interviewed C with these questions in mind. She told him no other children had ever seen Papa molesting her because he did it under a blanket. She said she had not told Det. Parish that Papa was molesting her because, contrary to what she had said in her first interview with Det. Meyers, Papa had not started until after Parish interviewed her.
For six months Bigfork lawyer Peter Leander worked alone on Earl’s defense. Then he recruited me to join him.
The case went to trial in Kalispell, the county seat. Earl’s hearing was too poor for him to hear the testimony. He tried to follow his trial via transcription on a video screen at counsel table.
In opening statement I told the jury Peter and I would prove three things. First, C had accused Earl to get attention from the older girls at the slumber party. Second, Det. Meyers had jumped to the conclusion Earl was guilty and had conducted a biased investigation from that point on. Third, if Earl had been molesting C in the way she described, other people would have known.
C testified with great poise. She told her story well, with a compelling phrase or two she had not used in her police interviews. There were many inconsistencies in what she had said, though. She had also told Det. Meyers many things that were hard to believe—for example, that she had meant to tell her mother that Papa was molesting her, time after time, but she kept forgetting to do so. Peter’s cross-examination of C brought out the inconsistencies and the implausible parts of her story.
I cross-examined Det. Meyers. It took most of a day. We were able to show many weaknesses in the investigation. For example, six months passed before an investigator interviewed the other girls at the slumber party, to see what they remembered of the conversation that led to C’s saying that Papa had touched her. By that time, it was hard for the girls to remember.
I spent much time with Det. Meyers showing the weakness of his interviewing technique with C. He had not given C open-ended invitations to narrate—the kinds of questions that are difficult to answer convincingly if one has no real event to narrate. Instead, he had asked questions that posed a small number of simple options to C—such as whether Earl had put his hand inside her panties. If a person is making up a story for the police as she goes along, option-posing questions make the task easier.
A social worker testified for the prosecution that she had spent two hours with C, had viewed tapes of C’s police interviews, and had concluded her accusations against Earl were credible. (Montana is one of the few states to allow expert testimony that a child’s accusation is true.)
Peter and I decided not to call Earl as a witness. The video of his interrogation had been played for the jury. In it he said that he had not molested C and found the idea repugnant. We believed C’s inconsistencies and implausible statements raised great doubt and that the jury would acquit Earl on that basis.
The jury surprised us. It deliberated fourteen hours before announcing it was hopelessly deadlocked. The last vote was 7-5 for conviction.
We interviewed most of the jurors and learned a lot. First, many jurors had found C so credible that they, like Det. Meyers, did not seem to care that there were stark inconsistencies and implausible features in her statements. This seemed related to a second problem: although all jurors said they had followed the instruction to convict only if guilt was proven beyond a reasonable doubt, it did not seem that all who voted to convict really had that level of certainty.
We learned that many jurors had found the sheriff’s office’s investigation woeful, but only one felt that Det. Meyers’ interviewing errors had influenced what C had said in her interviews.
Perhaps most important, we learned that the jurors had not developed any concern for Earl. It is easy for adults on a jury to care what happens to a child who says she is a crime victim. If they do not also care what happens to the adult who is the defendant, the emotional scales tip heavily toward conviction. We theorized that two things had caused that to happen in Earl’s case. First, his inability to hear the trial and his difficulty following it via text on a monitor had made him seem disconnected from the trial. It almost appeared that the trial did not interest him much. Second, his not testifying prevented the jury from meeting him directly.
Three months after the jury hung, Earl went back to trial. Peter and I did many things differently because of what we had learned by interviewing jurors. We refocused jury selection, opening statement, closing argument, and our proposed jury instructions to remind the jurors whenever possible that any reasonable doubt required acquittal. We discarded the attack on Det. Meyers’ interviewing skills and refined the attack on the other failings in the police investigation. We called Earl to testify. We detailed Earl’s long history as a man who took good care of children.
The case was well reported by the local newspaper, the Daily Interlake.
When the case went to the jury, I felt Earl would be acquitted. I remembered, though, that I had felt the same at the end of the first trial, and that jury had surprised me. The second jury received the case late on a Friday, so I had the weekend to wonder whether this time justice would be done. Earl wondered, too.
According to members of the second jury with whom I later spoke, it spent ten hours reviewing the evidence before doing any voting. When it did vote, the initial count was 9-2 to acquit. Only a unanimous vote could produce a verdict. After a bit more discussion, the jury voted 12-0 to acquit.
With the acquittal, Earl was released from all legal restraint, including the order that he have no contact of any sort with children. He went to a restaurant to celebrate with family and friends. Parents brought to the restaurant daycare children who had missed “Papa” for nearly a year. A photo of that joyous reunion ran on the front page of the Daily Interlake.
A juror sent a letter to counsel and the editor of the newspaper. She denounced Det. Meyers for “choosing to try, and convict, Mr. Hunt in his own mind” and therefore not investigating “what the truth may have really been.” She said she prayed that none of her family or friends would ever be “assumed guilty by those whose job it is to protect their freedom.”
The prosecutors found themselves defending the decision to prosecute Earl.
When asked how he might rebuild his reputation, Earl said he did not think it needed rebuilding. He felt the truth had at last been shown in court.