Knowing when to end the defense interview of the boy led to winning the case without trial.
The accusation: That Sam molested his five-year-old son, Owen, in their motor home and inside their house.
The charge: Child Molestation in the First Degree.
Also, Child Protective Services asked a court to find that Owen was dependent on the State for protection because neither of his parents could be relied upon to protect him. (Sam’s wife—who was also Owen’s mother—had told CPS that she did not believe Sam had molested Owen.)
The possible sentence: from four years to life in prison.
The defense David Marshall presented: Sam was Owen’s primary caregiver. As a man, Sam stood out among the mothers taking kindergarteners each day to Owen’s school. That, plus his occasional lack of social grace in dealing with school workers, aroused the suspicion of a school counselor. One of Sam’s neighbors was also suspicious of the time Sam and Owen spent inside their motor home while it was parked in front of their house. The counselor asked Owen leading questions; eventually, according to her report, Owen obliged by saying that Sam had touched his privates. Owen had no memory of any such touching, David contended; he merely followed the counselor’s lead.
The result: dismissal before trial of both the criminal charge and the dependency petition.
What helped get Sam back his life: David’s interview of Owen destroyed the case against Sam. When David attempted to turn the interview from its introductory phase to Owen’s allegations against his father, Owen didn’t offer any memory that his father had ever done anything very bad to him. When asked why he hadn’t seen his dad for many months, Owen didn’t seem to realize that was because his dad was accused of doing something bad to him.
At that point, David sensed he had enough from Owen to win Sam’s case. David knew that asking questions more specifically focused on whether Sam had touched Owen’s privates might remind Owen he had said so to the counselor (and later to a CPS worker). So David stopped the interview at that point. David’s judgment was right. First the prosecutor, and then the CPS lawyer, dismissed their cases.
It takes months to investigate and prepare to defend at trial a child sex abuse case. While I was at work investigating one of my cases, the child said to have been molested forgot he’d ever said that.
Sam and Kristin had a five-year-old son, Owen. As a self-employed handyman, Sam had more control over his days than Kristin had over hers, so he provided most of Owen’s daytime care.
Vera lived across the street. Owen came to her house sometimes to play with her sons. When Vera would tell Owen it was time to go home, she noticed that he didn’t seem to want to go home, and he’d ask whether he could come back the next day. Vera also noticed that Sam spent considerable time cleaning the motor home he kept parked in his driveway.
As a man, Sam stood out at Owen’s school among the mothers dropping off and picking up kindergarteners each day. And teachers and others at the school didn’t like some of Sam’s behavior there.
One day after Sam learned Owen had been misbehaving in class, he paused just outside the classroom door to look in and see for himself. A staff member saw Sam there and told him parents could not remain on campus unless they obtained visitor badges at the front office. “I’m just going to be here a few minutes,” Sam answered and continued watching. The staff member told a counselor Sam was not obeying the rule. The counselor approached Sam and repeated to him that he needed to get a badge or leave. Sam again said he wouldn’t be long and continued watching. The counselor reported the situation to the office manager, who then became the third person to ask Sam to comply. At that point Sam was finished watching, so he left.
Vera, the family’s neighbor, had worked at the school and was well-acquainted with Joan, one of the counselors there. Not long after Sam’s ignoring the badge rule, Vera told Joan she was concerned someone might be molesting Owen at home. She mentioned Owen’s reluctance to go home from her house and the time he seemed to spend with his father in the privacy of the motor home.
Joan brought Owen to her office for a talk. Afterwards, she reported to Child Protective Services Owen had said his father often punched and kicked him on his legs. A CPS worker then interviewed Owen. He did not report any punching or kicking to her, and she closed the case.
Six months later, Owen began first grade. His teacher did not care for Sam. Sam gave her “the creeps,” she said to others at the school.
About two weeks into first grade, Owen’s teacher found him angry and cutting his own shirt. She sent him for another talk with Joan, the counselor. Joan reminded him about their earlier talk. This time, the counselor reported, Owen said his father had touched his privates.
Again a CPS worker came to interview Owen. Again Owen did not repeat the allegations Joan reported he had made to her. But this time the CPS worker decided to interview Owen again, the next day, with Joan in the room. With Joan listening, Owen did repeat the allegations. And the day after that he repeated them again to a child investigative interviewing specialist at the prosecutor’s office.
As Sam’s lawyer, I spent six months digging up the facts you’ve just read and a lot more. With trial about two weeks away, I was well-prepared to interview Owen.
As always, I began with questions about things the child likes to do and other subjects unrelated to the alleged crime. I then tried to turn the conversation to the allegations against Sam.
CPS had filed a dependency case against Sam just after Owen reported his father had molested him, so Sam had not been allowed to live at home for six months. I thought asking Owen where his dad was, and why, would lead him to tell me about the supposed molestation. But it didn’t. Owen just said his dad “had to go away for some reason. I don’t know why.”
I happened to be interviewing Owen in the same room where, six months earlier, he had made the allegations to the prosecutor’s interviewing specialist. Owen remembered having been in the room before. I asked, “Why did you come here before?”
“I forget,” Owen answered, “because it was a long time ago.”
I asked Owen whether he’d had any problems at home at the beginning of the school year. He couldn’t remember any. I ran down the list of members of his family, probing for problems he might have had with each of them. He couldn’t remember having had any problems with his dad, he told me.
“Owen, has anyone ever touched you in a way that made you feel uncomfortable?,” I asked.
“Hmm,” Owen pondered. “I don’t remember. I don’t think so.”
It was a short interview. At the end of it, I concluded Owen could remember many genuine events from six or more months ago—he had told me about several—but he could not remember reports he had made six months ago of things that had never happened.
The prosecutor realized my interview had destroyed his case. He dismissed it. CPS fought on for another couple of weeks before conceding that it, too, could not win. With the dismissal of CPS’s dependency case, Sam’s—and Owen’s—legal problems ended. The trial defense I was all set to present was not needed.