31 August 2005
Fair Trial Rights Often Violated In
Sexual Abuse Cases
Railroaded. False allegations.
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
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
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.
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
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
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
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
There were no other prosecution witnesses
and no proof that any abuse had
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
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
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
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
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
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
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
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
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
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
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
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
- 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
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
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,
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
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
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 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
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