This post is devoted entirely to the child molestation case I took to trial this past week (my first). Please see my post below for details on the non-work areas of my life. :)
Before I tell about the trial itself, allow me to provide some background information. The defendant in the case is a former-Satanist-turned-evangelical-preacher whom the parents of the victim brought to Arizona from El Salvador. They allowed him to live with them in their home for about two months so that he could preach to their congregation. The victim is a very sweet 11-year-old girl (10 at the time of the molest), the second to youngest of several children. I inherited the case from another prosecutor in our office, and I had a difficult time meeting with the victim and her family in the weeks leading up to the trial because the victim's mother had been in Mexico due to a sister's serious illness. (We did ultimately meet face-to-face last week, days before trial.)
The case had been set for trial once before, on August 8th of this year. On that date, the defendant's attorney--a gentleman in private practice whom I know well because his sister is a justice of the peace to whose courtroom I was assigned for 6 months while in misdemeanors (I'll call him "RG")--was in a serious car accident. Trial was scheduled to begin at 1:30; over the lunch hour, RG was driving somewhere, became distracted, and drove in front of a semi truck. He was fortunate to escape with only a concussion and several stitches. RG told me that officers at the scene told him that he had driven out a foot more, he likely would have been killed. As it was, RG was hospitalized for a couple of days, and the trial was rescheduled.
This trial began on Tuesday afternoon. We spent the afternoon selecting a jury. (A very capable legal assistant from the special victims unit helped me, thank goodness.) I quickly discovered that choosing 12 people who can sit and hear a child molestation case without bias is a heck of a lot more challenging than picking the same 12 people to hear about a car theft or a home burglary. People have so many emotional responses to charges of this kind: a couple of grown men even cried.
Wednesday morning, we had the jury picked and were ready to begin. The defendant required a Spanish language interpreter. Two interpreters were in the courtroom so that they could switch from time to time; additionally, the victims' parents needed an interpreter as well. As one of the interpreters was setting up her equipment and providing the defendant with his headset, she was stung by a scorpion in the courtroom! Now scorpions *are* quite common in the Sonoran desert, and I have heard of people finding them indoors. I have never heard of anyone even seeing one in the courthouse before, though.
A replacement interpreter arrived, and we got started. I called my first witness, the father of the victim. At the start of the trial, the judge had ruled--for reasons that are likely obvious--that no witness could mention the fact that the defendant used to be a Satanist. (Side note: if it's not obvious why, his rationale was that this would unfairly prejudice the jury against the defendant.) I had instructed the father, through the intepreter, immediately before he took the stand, that he could not mention this fact. In response to my fifth or sixth question--which didn't even call for information about the defendant specfically, but was a more general question--the father volunteered that ". . . he used to be a Satanist." My Spanish is not the greatest, but I caught what was said before it was interpreted into English; so did RG (who is a native Spanish speaker) and the judge. The words "Satanist" (English) and "Satanista" (Spanish) are not really that different, so I'm sure a majority of the jurors caught it, too. . . and three of the jurors actually spoke Spanish.
The judge asked the father whether I had instructed him not to say this on the stand; he said I had (whew). The judge then asked him why he said this anyway; he responded "because I believe in telling the truth, the whole truth." Oy vey.
All this led to the judge bringing in the father, mother, and victim, and admonishing them on the record to refrain from mentioning the defendant's past as a Satanist. The judge declared a mistrial and dismissed that carefully chosen jury.
As luck would have it, there were other jurors available for that afternoon (unusual for a Wednesday in our county), so we reconvened at 1:15 and started jury selection all over again. This time things went slightly more smoothly, and by 4:45 we had selected a second jury and recessed for the evening.
During that afternoon, RG, who is a devout Catholic, mentioned to me during a break "my guy kinda creeps me out." He said "you're gonna laugh at me, but I have a bottle of holy water with me." It was obvious from his demeanor that he wasn't joking. RG also made reference to the fact that he had nearly been killed in an accident the last time he was set to try this case and also to the interpreter's scorpion sting that morning.
As an aside: I woke up Wednesday morning with a migraine. Had I not been in the middle of a trial, I would've called in sick. As it was, I took alternating doses of Advil & Imitrex all day long; I got through the day, but generally felt sub-par all day.
Thursday morning when I arrived in the office, I had a phone message that one of my witnesses had been a car accident that morning while taking his son to school. Another witness could not testify that afternoon because he had a doctor's appointment to have a skin cancer removed. A third witness had a scheduling conflict; she was required to be in another county on the same day I needed her to testify. All this led to a lot of schedule juggling before I even headed over to the courthouse.
I arrived at the courthouse and found out that the victim & her family had a flat on the way to the courthouse and will be delayed. The judge was not happy, and the jury had to wait around for about 20 minutes for them to arrive. When they got to court, the victim's mother told me that one of their older sons (who no longer lives at home) was in a car accident this morning and was injured.
Once the trial resumed, I got the father on and off the stand without incident. He came across as angry and belligerent with the defense attorney; I believe--and others watching in the courtroom agreed--that this damaged his credibility. My second witness was the victim herself. She was only able to get through a few questions; when I asked her if she saw the man who touched her in the courtroom, she started crying uncontrollably and was unable to continue. (Poor thing.) So the judge instructed me to excuse her for the time being and to call my next witness.
My third witness was the victim's mother. My primary purpose in calling her was to elicit testimony about the victim's demeanor when she reported the crime each time (yes, the poor girl had to tell the mom twice before she was believed) and the behavioral changes she had noticed in her daughter since the incident. I was nearly finished questioning her when she gratuitously said that she had seen the defendant touch the victim and the victim's brother (her son) on another occasion.
You may be thinking "so what? All the better, right?" Well, not so much. The law requires that if the State intends to introduce evidence of other acts of the defendant that show a propensity to commit deviant sexual acts, we must file an appropriate allegation with the court. The judge must then hold a hearing, complete with expert testimony, to determine whether the proposed testimony is relevant and will be admitted at trial. None of this had been done. Why not? Because the mom had never told anyone this before!
Now I had another defense motion for a mistrial on the table. The judge excused the jury and questioned the mother more about what she had seen. Mom then said that not only did the defendant touch the victim, he also fondled her other three children who were living in the home during his stay. She said that she first noticed his inappropriate behavior days after the defendant arrived in her home. Yet he stayed with them for an additional 7-8 weeks. And she claimed that she had told the previous prosecutor and the investigating detective all this.
I was 99.8% sure this was not true--there was not a scrap of paper in the file that supports her statements; she never revealed any of this in her defense interview, though she was specifically asked about it; and two of the other three children were interviewed by law enforcement and denied that the defendant ever touched them--but I was in a difficult situation. I could not avow to the court that this never happened because how could I know for sure what the previous attorney or the detective discussed with the mother? The judge took the motion for mistrial under advisement and ordered me to confer with the previous prosecutor over the lunch hour.
After talking to both the prior assigned attorney and the detective, I learned that what mom was saying was just not true: she had never mentioned this to anyone involved in the case before today. Looking back, my only thought is that she recalled these other incidents well after the fact and somehow thought it would help the case to bring them up in court. After lunch, rather than declare a mistrial, the judge had to give the jury a curative instruction telling them to disregard this portion of the mother's testimony and that she never previously revealed this to anyone. There went mom's credibility as a witness.
Once mom's testimony was concluded, I recalled the victim to the stand. Her testimony was the one part of the trial that went smoothly. She cried a little bit this second time when telling the jury what the defendant had done, but was able to tell what happened and did a good job on the stand.
After hearing from the victim and the officer who took the initial police report, we had to recess for the day--at 3:15--because I had no more witnesses. I found out, though, that my expert would indeed be testifying in another county at the same time I needed her to testify in my case. I asked the judge for leave to call her out of order, but it was denied.
Friday morning: I arrived at court, and my first witness of the day--my detective--was delayed. He finally arrived (schedule miscommunication), and his testimony went off without a hitch. Then the defendant took the stand. He came across calm, rational, and--I hate to admit it--credible. He categorically denied ever touching the victim and reiterated his belief that the victim's parents had a grudge against him and had forced their daughter to lie.
I asked the judge once again to allow me to call my expert witness out of order--she would be available at 1:00--and once again the judge denied my request. So right after lunch, we went ahead with closing arguments.
The jury deliberated a little over an hour, then came back with verdicts of not guilty on both counts. In talking with some of the jurors after the trial, they said that they had doubts about the defendant's guilt because they thought both parents were not being truthful on the stand. As one of them put it "we believed something happened to the little girl; we just weren't sure that the defendant was the one who did it."
I knew from the get-go that this kind of case would be tough--no physical evidence, so a real "he said, she said" type of situation--but I really think that if 1) the parents had presented better on the stand, and 2) I could've used my expert (who would have testified, in general terms, about children's memory, truthfulness, and situations in which one might expect false accusations), I might have had a better chance at a conviction.
RG said he was just glad we both "survived" the trial. . . and I think he was relieved that he would have no further contact with his client. (He had mentioned to me that he didn't like even touching him because it made him uncomfortable. . . and RG is a touchy-feely guy, a real glad-hander.)
I was disappointed. . . mostly because I 100% believed my victim; I know that the defendant really molested her, despite what the defense argued & the jury concluded. But I learned a lot, and I, too, am glad this trial is over.
