by Aimée Sutton
Any defense attorney will tell you that the phrase “Not guilty” contains the two sweetest words in the English language. My colleague Alexei Garick and I recently savored such a verdict when our client was acquitted of Child Molestation in the First Degree.
When this case first landed on my desk, I thought something must have been left out of the file. It was very thin. Usually, a charge like that would result in a thick stack of police reports written by the many law enforcement officers involved. This file held only had about seven pieces of paper.
I immediately called the prosecutor and asked where the detective’s report was. She said there wasn’t one.
Detectives do important work. They do all the investigation that the responding patrol officers don’t have time or expertise to do at the time the crime report is made. Detectives put cases together. It was extraordinary not to have a detective coordinate an investigation on a serious charge like this.
Then I asked to see the evidence. I made an appointment to go to the sheriff’s office in the county near Seattle where this case was pending. I wanted to see what they’d collected at the scene. But the prosecutor called me back to say that they hadn’t actually collected any evidence.
This would not have been in unusual in many cases, but here it was really strange. There was one critical piece of clothing that the police had photographed at the scene: our client’s jeans. The jeans were particularly relevant because the child made a big point of saying that she heard something unzip before she was touched. The police must have realized the jeans were important because they photographed them; but then they left them at the scene, never to be seen again. I knew the prosecutor was also surprised by the failure to collect this evidence, especially since the photo in the case file didn’t show if the jeans had a zipper or a button fly.
That was not the only troubling failure to collect evidence. In Washington State, where Alexei and I do most of our work, children who report sexual assault are normally interviewed by a forensically-trained child interviewer, often at a child advocacy center (CAC). The U.S. Department of Justice considers an interview at a CAC to be a best practice in an investigation of child sexual abuse.
But there was no such interview in this case. Yes, the child was interviewed, but at 4:00 a.m., and for only eight minutes. This was exactly the wrong way to deal with a child who, if her allegations were true, might have been “overly fatigued, hungry, frightened, suffering from shock, or still processing their traumatic experiences.” According to the DOJ, children experiencing any of those conditions may not be effective reporters in an interview.
The case boiled down to this: Two families that were close friends got together for a party. The adults drank a lot. The visiting family stayed overnight. After everyone had gone to bed, the eight-year-old daughter in the host family got up and complained that the father in the guest family had come into her room, unzipped his pants, and grabbed her hand and made her touch his genitals. She said it lasted about two seconds.
The police were called immediately, but by the time they arrived it was past 3:00 a.m. By the time the officer in charge was talking to the child, it was nearly 4:00. They interviewed her briefly and arrested our sleeping client.
After I realized that the investigation in this case occurred exclusively in the middle of the night, and only for about two hours, my first thought was this: “No jury is going to be satisfied that the State of Washington has proven this case beyond a reasonable doubt.” There was simply too much that could have been done, and done easily, and yet wasn’t. I figured a jury would think child molestation too serious a charge to rely completely on the sometimes-garbled words of a sleep-deprived eight-year-old.
The girl testified at the trial. She made statements that were almost diametrically opposed to what she’d said when originally interviewed. This left the prosecutor in a double bind: the evidence was scant, and suddenly it had become contradictory.
When I argued the case to the jury, I pointed this out. I also stressed what the cops could have done but didn’t—what they should have done.
It took nearly a full day of deliberations for the jury to reach the conclusion I’d anticipated many months ago. The jury found our client not guilty.
When the jurors talked with the lawyers afterwards, they explained to the prosecutor that the police had done such a terrible investigation that they could not in good conscience send anyone to prison.
Reasonable doubt can seem a cold and abstract concept compared to the hot emotions of a child sex abuse trial. But my appeal to the jury to decide the case on the basis of it—as the law requires—was answered. Thus was our client acquitted of a very serious charge.