Fair Trial Rights Often Violated

Empire Journal
31 August 2005

Judicial Watch

Fair Trial Rights Often Violated In Sexual Abuse Cases

Railroaded. False allegations. Wrongful convictions.

All too many times in child custody proceedings, the events take a vicious turn when accusations suddenly materialize against the male - the husband, father or stepfather - an attempt by the mother to stack the deck to insure that she will be awarded custody, leaving the man's life and that of his family in shambles, often unable to defend an unfounded, unsubstantiated he said/she said claim.

Although the federal and state Constitutions guarantee a defendant a right to a fair trial, in many cases the overwhelmingly prejudicial inferences, emotional testimony and usually distasteful recitation of the alleged events so taints the jury that the defendant does not obtain a fair trial and is unjustly convicted because he can't refute the fabricated accounts.

Sometimes the case takes on a life of its own, the story of the alleged victim changing over and over, inconsistent, contradictory and often enlarged. Once the allegation is made, the stage for an often malicious prosecution and wrongful conviction is set as both the mother and the victim feel cornered, pressured by police and prosecutors to continue the charade or else they themselves will be charged with making a false statement.

The convoluted Livingston County case of Timothy Herington is one of many such troubling cases in today's criminal justice system.

With no physical evidence of incidents which had allegedly occurred some five years previous, with no witnesses and not even any police testimony, Herington was convicted in March, 2003, following jury trial of eight felony counts of sodomy in the second degree and is serving 9 1/3 to 28 years in state prison for allegedly abusing his stepdaughter when she was 11 years old.

Herington, 38, is a disabled veteran, having served with the U.S. Navy, receiving an honorable discharge in 1989. He received a disability pension which he supplemented with part-time employment. Prior to the accusations by his stepdaughter and now ex-wife, he had no previous criminal record.

Herington had married Dawn, the single parent of Krystle Barnes, in 1992 when Krystle was five years old. In 1994, Cullen was born and in 1996, Cheyenne was born.

In September, 1997, there was an argument between the couple and when Krystle attempted to intervene, she was accidentally knocked to the ground and her elbow hit her half-sister in the eye giving her a black eye. As a result, Dawn Herington ejected her husband from the trailer. He relocated to Pennsylvania, returning about a year later to live with his parents. During his absence, he tried to make contact with his children but was refused by Dawn.

Nearly a year after Herington had left the household, in August, 1998, Krystle reportedly told a school friend that her stepfather had sexually abused her. She did not tell her mother about the allegations at that time.

On Sept. 28, 1998, he filed for sole custody of his children, Cullen, then four years old, and Cheyenne, then two, alleging that Dawn was abusing them and driving drunk with the children in the vehicle.   On Oct. 15, 1998, she countersued for custody.

On the eve of the custody hearing, the ugly head of alleged false allegations first raised its head with Dawn allegedly threatening that if he didn't "back off", she would tell everyone that he had sexually abused her daughter.

"Tell your f---ing son if he doesn't throw that - doesn't dismiss that custody proceeding, I'm going to accuse him of sexual abuse of my child", Dawn Herington, now 40, allegedly screamed into the phone of her former mother-in-law on Dec. 10, 1998.

EXCULPATORY EVIDENCE DISALLOWED

But the jury at Herington's trial wasn't allowed to hear testimony regarding that alleged phone call as the judge refused to allow Herington's mother to testify, saying it was inadmissible hearsay.

In fact, a review of the court transcripts reveal that the prosecution, led by Livingston County District Attorney Thomas Moran, may have shifted the burden to the defense to prove Herington's innocence and removed the constitutional guarantee that an accused is innocent until proven guilty beyond a reasonable doubt.

By Livingston County Court Judge Gerard Alonzo refusing to allow Herington's mother and other defense witnesses to testify, he in essence refused to allow the jury to hear exculpatory evidence which could have and undoubtedly would have resulted in the acquittal of Herington. A review of the record indicates that not only did the judge allegedly abuse his discretion but allegedly denied Herington a fair trial.

Herington was convicted solely on the unsubstantiated testimony of his stepdaughter, Krystle Barnes, then 16, and that of a psychiatrist who testified solely about a highly controversial psychiatric theory he had read about but he had never interviewed the alleged victim and was unfamiliar with the case.

There were no other prosecution witnesses and no proof that any abuse had
ever occurred.

According to Luella Herington, on Dec. 10, 1998, the night before the custody hearing, she was phoned by her former daughter-in-law who by that time had had her son, Timothy in and out of Family Court on numerous occasions, filing 14 separate complaints against him for alleged non-support. It appears that if Timothy Herington hadn't reported the phone call allegedly made by Dawn, he probably would never have been charged and wouldn't be in prison today.

Upon going to court for the hearing on Dec. 11, 1998, Herington was insistent on reporting the phone call to the Family Court. He and his mother reported the incident to Margaret Linsner, law guardian for the children, telling her that the mother was making threats to falsely accuse him of sexual abuse.

When the judge asked if Herington was going to pursue his petition for custody and he answered yes, Dawn's attorney immediately announced to the court that there was an issue of child abuse to be considered. The law guardian then advised the judge of the phone call the night previous, the incident was then reported to police and the State Police took a statement
from Krystle, then 11. According to her later testimony, she didn't tell Inv. Robert Schultz the entire story at that time because she didn't want to testify because she was embarrassed and ashamed.

Interviewed by Child Protective Services on Dec. 14, three days after the hearing, she told CPS that the alleged incidents occurred within a two week period of time, several days apart when she was in fifth grade, 11 years old and in "one of the spring months".

PRIOR COMPLAINT UNFOUNDED

By March, 1999, the allegations of abuse had been investigated by both CPS and the Livingston County Sheriff's Department. No charges were filed and joint custody was awarded. Later in 1999, after the couple had been divorced, Dawn filed a report against him for child abuse, alleging that he had shown pornographic movies to his son, then 5. The complaint was investigated and ruled unfounded.

He had visitation of the children until New Years Day, 2000 when she refused to let him see the children because he was allegedly behind on his child support payments. In February, 2000, he filed for visitation and eventually agreed to give up his veteran's disability, signing his entire pension check over to her.

The visitation issue was resolved in June 2000 and continued until the middle of September, 2000 when Dawn then reported him for allegedly sexually abusing their four year old daughter, Cheyenne. She had continued to file complaints against him for failure to pay child support resulting in most of the actions being dismissed when it was determined he was up to date on payments.   He and his family claimed she was filing the complaints as a means of harassment.

In 2001 she was awarded full custody of the younger children.

In March, 2002, Krystle, then 15, during the ongoing investigation by State Police in Canandaigua involving the allegations of sex abuse of Cheyenne, said she would make full disclosure and testify against Herington, telling a significantly different and embellished story from that which she had told in 1998, supposedly what was now the "whole story" except that times, dates and the alleged occurrences were significantly different than prior statements she had given.

It appeared that perhaps the State Police were soliciting Barnes to file a formal complaint against Herington in order to bolster their complaint against him already filed in Ontario County,

According to her pre-trial testimony in Town of Nunda Court on June 12, 2002 at the preliminary hearing, she had first revealed to her mother she had been sexually abused the day before the interview by SP Inv. Robert Schultz on Dec. 14, 1998.

However, her mother had threatened three days earlier, on Dec. 10, 1998, to levy sexual abuse allegations against Herington opening the door to question if his estranged wife supposedly didn't learn about the alleged abuse until Dec. 13, 1998, why she made her threat of Dec. 10, 1998.

On the basis of the statement given by Krystle concerning incidents which were alleged to have occurred more than five years previous, in 1997 when she was 10 years old, Herington was indicted by a Grand Jury

During the June, 2002, arraignment before Nunda town justice James Mann, the judge stated that the complaint contained no alleged date of incident, an omission which would render the complaint legally insufficient. According to court records, the State Police indicated that "we don't have a date, just the spring of 1997"

JUDGE ALTERED ACCUSATORY INSTRUMENT

The justice allegedly took it upon himself to alter the sworn statement of Barnes, entering May, 1997, "just to have a date", an act which is questionably legal.

However, Herington's counsel did not challenge the town justice's alteration of the accusatory instrument. That's because Herington wasn't represented by counsel at the arraignment.

Several days later a preliminary hearing was held and Mann determined that there was sufficient evidence for the matter to proceed to county court.

Although the Livingston County district attorney's office presented the matter to the Grand Jury and an indictment was returned against Herington for eight counts of felony sodomy, neither Herington nor his attorney were allegedly given notice as required by law of the Grand Jury proceeding. The district attorney's office later claimed that notice had been served on him while he was incarcerated at the Livingston County Jail. However, there is no sworn affidavit of service by the sheriff's department to support such a claim which would render the indictment defective and mandate its dismissal.

The DA's office was later to claim that because Herington and his attorney had been present at the preliminary hearing and knew that it had been "bound over" to county court, that the DA's office did not have to give notice of presentment to the Grand Jury.

Earlier, on May 31, 2002, Herington had been arraigned on an indictment in Ontario County after being charged in March, 2002, with felony sodomy charges involving his four-year old daughter, charges of which he was eventually acquitted following jury trial in January, 2003. In the Ontario County charge, the district attorney's office argued for high bail saying that Herington was about to be charged with similar charges in Livingston County. The threat of additional arrest was made repeatedly over the next several months but Herington was not charged with the 1997 incidents until after he had posted bail on the Ontario County charges.

Ontario County Court Judge Frederick Reed had set bail at $100,000 which was posted by Herington but as soon as he was released, he was immediately arrested on the Barnes complaint in Livingston County and arraigned before Mann in the Town of Nunda Court.

The stepdaughter testified that when she was 11 years old, not 10 as she had initially stated, her stepfather touched her inappropriately. She testified that the incidents had started sometime in 1996 but she didn't say anything until the summer of 1998, after her stepfather was kicked out of the house by her mother.

This testimony already contradicted previous statements she had made and known facts.

On cross examination, she admitted that she had previously stated under oath that the alleged improper actions had occurred five or six times within a two week period in 1996. She also admitted that in September of 2000 she told her best friend that it happened over a six to eight month period. Barnes told a case worker that it only happened five or six times. She told another case worker that it happened over a two week period and didn't last that long. She told a police investigator that it happened between the spring and summer of 1997. She also told the police that it only happened on weekends.

Defense counsel Joseph Jochs of Ithaca argued that the stepdaughter's testimony was so inconsistent and contradictory that it could not sustain a conviction. He pointed out that she had made repeated changes to the story that she had given in her sworn statement and told many different stories over time. He said that she admitted under oath that in a period of two months she went from first saying the alleged incidents happened within two weeks to saying they happened over six to eight months.

NO CORROBORATING EVIDENCE

There was no corroborating witness or physical evidence.

According to Jochs, Herington's accuser's story was inconsistent throughout the proceedings including statements about how the abuse occurred and where and when it had allegedly occurred.   There was no physical evidence (DNA) tying Herington to the alleged crimes and no proof that any crime had occurred. No police officers testified.

The only other prosecution witness against Herington was Dr. David Coron, PhD who testified that he had never had Krystle Barnes as a patient and had never interviewed her.

Coron testified before Krystle.

He testified that he has read articles related to Child Abuse Accommodation Syndrome (CAAS). According to Coron, CAAS is merely "a useful conceptualization of how children cope with sexual abuse or extreme physical abuse or trauma or emotional abuse, extreme emotional abuse of trauma.

He noted that no actual studies had ever been conducted and that CAAS was "just a theory". He said there was no accepted diagnosis or set of symptoms associated with CAAS. According to Coron, CAAS described how "young children learned how to understand and how to cope with things which were previously unknown to them or which might be traumatic to them".

According to Coron, the CAAS theory states that there are five stages of accommodation. First, the child keeps it secret (immediate disclosure is rare). Second, having kept the secret, the child feels hopeless. Third, the child attempts to accommodate the problem with repression or disassociation. Fourth, the child will make an unconvincing (untruthful) disclosure. Finally, the child may recant and/or make further disclosures.

In sum, Coron testified that there will be inconsistencies in the child's statements, the child may make false disclosures, the child will likely recant at some point and all of the inconsistencies, false disclosures and recantations do not mean that the child is not telling the truth.

At the conclusion of Coron's testimony, defense counsel noted that he was not capable of cross examining the witness because there were no facts before the jury. He then asked permission to recall Dr. Coron after the fact witnesses so that the proper cross-examination could occur.

The court denied the request and defense did not cross-examine Coron.

On appeal, it was argued that CAAS lacks a proper scientific basis and that the expert testimony regarding CAAS had been improperly received in the case. It was argued that the admission of Coron's testimony had deprived Herington his due process of law because allowing testimony regarding CAAS prevented him from properly challenging the credibility to the complainant
allowing testimony of CAAS prior to the fact witness deprived Herington of the ability to challenge the credibility to the witness.

However, in a decision rendered Oct. 1, 2004, the Appellate Division of state Supreme Court, Fourth Department, ruled that the expert testimony had been properly admitted during the prosecution's case and prior to the testimony of Krystle in order to set the stage before the alleged victim testified. The mid-level appeals court also said that no Frye hearing was required to be held as argued by the defense because the expert testimony did not involve novel scientific evidence.

A Frye hearing determined the admissibility of certain expert testimony proposed to be offered based on a standard of general acceptance of a scientific technique or theory within the relevant field or scientific community.

UNPRESERVED FOR REVIEW

While the appeal also argued that there had been legally insufficient evidence to constitute a conviction, the appellate court said that facts supporting that claim had not been preserved for review.

Herington's appellate attorney, David Parks of Ithaca, asked the state's highest court, the Court of Appeals, to review the case, stating that the trial court improperly allowed the prosecution to introduce the expert testimony prior to any fact witnesses and because CAAS is an untested theory. There have been no studies conducted to test CAAS.

Parks argues that while CAAS may be a "useful conceptualization" used by psychiatrists in treating children, given its lack of research, lack of actual studies, lack of accepted set of identifiable symptoms and lack of accepted diagnosis, it was improper of the court to allow Dr. Coron's expert testimony regarding CAAS.

The current scientific standing of CAAS in the relevant scientific community clearly establishes CAAS does not currently have a proper scientific basis, at least not to the standard required for admission as expert testimony in this case,

Developed around 1983, by Dr. Roland Summit as a diagnostic tool, CAAS is at the center of a dispute as to whether CAAS can be used to distinguish between abused and non-abused children if the cluster of defined symptoms is present.

That cluster consisted of five experiences described by the doctor as typically occurring in sexually abuse children.

- Secrecy about the sexual abuse, often ensured by threats of negative consequences of disclosure;

- Emotional helplessness to resist or complain;

- Entrapment and accommodation, where the child sees no way to escape ongoing abuse and thus learns to adapt;

- Delayed, conflicted, and unconvincing disclosure of the abuse; and

- Retraction of the child's allegations in an attempt to restore order to the family structure when the disclosure threatens to destroy it.

Florida Supreme Court has overturned two convictions for retrial on the grounds that it was error to admit CAAS as evidence.

When there is a dispute about alleged scientific evidence, it cannot be said to have been accepted by the particular scientific community. The controversial facts, conclusions or opinions should not therefore be allowed in as evidence in support of the issue for which they are being offered at trial.

In an article concerning CAAS which appeared in the Journal of Institute for Psychological Therapies, Arthur Garrison, president of the Foundation for Law and Equal Justice at Delaware Criminal Justice Council in Wilmington, Del., pointed out that in 1992, the Pennsylvania Supreme Court in Commonwealth v. Dunkle held that the introduction of the Child Sexual Abuse Accommodation Syndrome was reversible error because CAAS was not scientifically valid and was not generally accepted within the field of child psychology.

In 1987, Garrison said the Delaware Supreme Court in Wheat v. State held that introduction of CAAS was not reversible error because evidence on the behavior of sexually abused children was relevant to the issue of determining if sexual abuse occurred. Each court review the testimony submitted by expert witnesses on children and their reactions and behaviors to the event of sexual abuse, but dealt with the legal question of admissibility differently. The Dunkle court held that CAAS was not derived through the scientific method of that it was accepted in the discipline to which it belonged, thus it was inadmissible. The Wheat court held that CAAS provides the fact finder with an explanation other than deceit for behavior that appears inconsistent with the claim of sexual abuse; thus CAAS evidence is relevant to a material issue in the case and is admissible.

CAAS EXPLANTORY TOOL

Garrison maintains that CAAS is not a diagnostic tool to prove a child was sexually abused, nor should it be used to support the credibility of the child who claims to be abused. Rather, Garrison says that CAAS is an explanatory tool that should be used in criminal trials to rebut defense claims or implications that the child's behavior shows deceit.   CAAS is properly used to show that behavior that seems inconsistent with sexual abuse may not be when the dynamics of the pressures placed on the child by other family members are taken into account.

The Court of Appeals has addressed the issue of admissibility of CAAS in a sex crimes prosecution in the Rensselaer County case of Jack Carroll of Melrose, formerly of Troy..

In that case in their November, 2000 decision which reversed Carroll's conviction in Rensselaer County Court on other grounds, the high court held that in a sex crimes prosecution involving a juvenile victim, the People properly offered an expert's testimony to explain Child Sexual Abuse Accommodation Syndrome for the purpose of instructing the jury about possible reasons why a child might not immediately report incidents of sexual abuse.

In the Carroll case, the state's highest court held that the expert's testimony did not attempt to impermissibly prove that the charged crimes occurred. Although the expert testified about CAAS, he defined it only generally, insofar as it provides an understanding of why children my delay in reporting sexual abuse, he never opined that the defendant committed the crime that the alleged victim was sexually abused or even that he specific actions and behavior were consistent with such abuse. In fact, in the Carroll case, as in the Herington case, the expert had not interviewed either defendant or the alleged victim and was not aware of the facts of the case.

In Herington's case, other than the alleged victim claiming that the incidents had happened, there was no other proof and certainly no proof that proved Herington guilty beyond a reasonable doubt, the standard required.

The cases of Herington and Carroll are strikingly similar.

According to a website which features the Carroll case, <http://www.justicenow4.com/>, the accusations in Carroll's case came after the then 13-year-old daughter of Jack Carroll's ex-wife reported to a fiend that she was having dreams than an unidentified "someone" was touching her. The girl later changed the story to identify the "someone" to a boy named "AJ". Once Carroll's wife heard of the dreams, she immediately believed her daughter had been molested and within hours the dreams became allegations of sexual abuse against Jack Carroll. Carroll and his ex-wife
were involved in a bitter separation at the time.

Prior to Carroll's arrest, police attempted to elicit a confession from him by having his accuser phone him. The call was taped. On the tape, Carroll vehemently and adamantly denies the accusations and even encouraged the girl to go to the doctor for an examination to show that there was no abuse. Carroll was eventually charged in the case on rape and sex abuse charges but the tape was not admitted at trial, much like the evidence of Dawn Herington's phone call was not admitted at the Herington trial.

CARROLL CONVICTION REVERSED

On appeal, Carroll's attorney argued that the trial court judge had prevented Carroll from introducing the exculpatory tape-recorded phone call and on grounds there was no evidence of rape.

The Appellate Division of the state Supreme Court, Third Department denied the appeal and affirmed the conviction. Carroll appealed to the Court of Appeals and the high court dismissed the three rape charges that "there had been no evidence or testimony of penetration of any instrumentality". The court further ordered a new trial for the six sex abuse counts on the grounds the taped phone call should have been admitted at trial. At that time, Carroll had served three years in prison.

On the eve of the new trial, Carroll refused the prosecution's plea bargain offer to plead to a misdemeanor count of endangering the welfare of a child for which he would be sentenced to time served. He maintained his innocence and opted to go to trial, was reconvicted, and sentenced to 12 to 24 years in prison, a harsher sentence than the original. He has filed to vacate that conviction on grounds of prosecutorial misconduct by Rensselaer County District Attorney Patricia DeAngelis.

That motion is still pending, now before a state appeals court.

And that may the next step for Timothy Herington, filing a motion under Criminal Procedure Law known as a 440 motion, to vacate the convictions due to the court's denial of exculpatory evidence and several constitutional issues including the allegedly preventing him from presenting a defense, having witnesses testify on her behalf and from asserting his own defense.

According to Herington's family who has hired an investigator, there may also be an issue of prosecutorial misconduct in his case with allegations surfacing of an improper relationship existing between district attorney Moran and Dawn Herington.

At Herington's trial, Judge Alonzo refused to let Herington's mother testify as to the phone call and of prior family court proceedings, saying that her testimony would be inadmissible hearsay.

Defense counsel had then asked the court to admit the transcripts of a previous Family Court proceeding as a court exhibit for the purpose of having a complete record on appeal. Alonzo denied the request and refused to make the transcript part of the record. The Appellate Division later ruled that the issue had not been preserved at trial.

However, in a 440 motion, collateral issues outside of the record may be presented in an argument to vacate the conviction.

The trial judge also refused to allow Eva Weis, a co-worker of Herington's mother, to testify that she was present for the custody hearing in Family Court and was not allowed to testify to substance of what was said during the court proceeding or about the statements and threats allegedly made by Dawn Herington to lodge sexual abuse allegations against her then soon-to-be ex-husband. Despite her threat, Herington did not drop the custody petition and won full custody of the children in March, 1999, custody later revoked and a no visitation order instituted after Dawn Herington lodged sexual abuse allegations against him concerning his daughter. As a result of those allegations, he lost custody and she regained full custody of both children.

FAIR TRIAL RIGHTS VIOLATED

Herington may have had his right to a fair trial and due process rights denied by the court's failure to admit the exculpatory evidence of the phone call. According to the Court of Appeals, it is well established that a statement that is not offered for the truth of the matter asserted but rather is used as the basis of an inference for another relevant fact does not come within the hearsay rule as Alonzo ruled.

In several significant Court of Appeals rulings, it has been held that a statement that is offered to prove circumstantial evidence of a defendant's state of mind, or intent, is not hearsay.

And in the Herington case, a key issue is Dawn Herington's state of mind and her intent to bring alleged false accusations against her estranged husband who was challenging her for full custody of their children which would not only remove custody, but also the financial payments for child
support.