the child sexual abuse case: post conviction preparation - NACDL

THE CHILD SEXUAL ABUSE CASE:POST CONVICTION PREPARATION ANDPRESENTATION OF EXPERT TESTIMONYPrepared by:DOUGLAS N. PETERS, ESQ.PETERS, RUBIN & SHEFFIELD2786 North Decatur Road, Suite 245Decatur, Georgia 30033(404) 296‐5300WEBSITE: www.justiceingeorgia.comEMAIL: dougpeters@justiceingeorgia.comApril 15, 2010Prepared for theNational Association of Criminal Defense LawyersInnocence Network

THE CHILD SEXUAL ABUSE CASE:POST CONVICTIONPREPARATION ANDPRESENTATION OF EXPERTTESTIMONY**(This presentation is limited to the post convictionpreparation and presentation of medical experttestimony (non‐dna) in the child sexual abuse case.Careful attention should also be given to thepreparation and presentation of non‐medical experttestimony at the post conviction hearing dealing withissues which include, but are not limited to, improperinterviews of the alleged child victim, and the conductand behavior of the alleged child victim.)

Time for filing Motion for NewTrial/Application for Writ of HabeasCorpus (State)• Motion for New Trial– Within 30 days of Verdict/ Imposition of Sentence(O.C.G.A. §5‐5‐40)• Application for Writ of Habeas Corpus (State)– Within 4 years after direct appeal becomes final(O.C.G.A. §9‐14‐42(c))

Scheduling the Hearing• Request that court allow you open ended timeto prepare your motion and to inform courtwhen you are prepared to file your amendedmotion and schedule the evidentiary hearing– 6‐12 months for preparation– Schedule adequate time for your evidentiaryhearing to allow proper presentation ofevidentiary issues (2‐3 days)

The Legal Standard• Ineffective Assistance of Counsel• Strickland v. Washington, 466 U.S. 668 (1984)– In Strickland the U.S. Supreme Court held that the“proper standard of attorney performance is that ofreasonably effective assistance” Id. At 686.– Under Strickland standard, the Defendant bears theburden of proving not only that his counsel’srepresentation fell below an objective standard ofreasonableness, but also that he suffered actual andsubstantial prejudice as a result.– For Sample of “Legal Memorandum in Support ofApplication for Writ of Habeas Corpus”, See Appendix,Nowill v. Georgia, pages A001‐A012

Defense Counsel’sInitial Review of the Case• Transcript of trial and sentencing proceedings• Transcript of all pretrial proceedings• Complete review of file in clerk’s office attrial/appellate level• File Open Records Request to obtain and reviewcomplete file in Prosecutor’s office (For Sample of“Open Records Request”, See Appendix, State v. Elrod,page A013)• Obtain and review complete file from triallawyer/appellate lawyer– Care should be taken to document contents of file,number pages, seal, and copy file for review

Identifying the Medical Issue in yourChild Molestation Case for DefenseExpert Testimony• STATE v. FLICK, Aggravated Sexual Battery and Child Molestation, Fulton County Superior CourtThe defense went immediately to the scene and photographed the alleged crime scene area,prepared a diagram of the layout of the room, and seized all items of bed linens from the bed, aswell as cutting up and seizing the carpeting from the bedroom. The defense had all of the itemsfrom the room inspected by a forensic pathologist who found no presence of semen on any of theitems. The forensic pathologist also reviewed the medical records of the anal examination of thealleged victim and found that those findings were inconsistent with her allegations of penetration.• STATE V. McFERRIN, Child Molestation, Gwinnett County Superior CourtThe Defense had the case reviewed by a forensic pathologist who was prepared to testify that alack of observations e.g, discomfort, pain, blood in underpants, lack of pain at urination, etc., bythe mother were all inconsistent with the child's claim of penetration by the Defendant in closeproximity to the time of the alleged molestation. Finally, investigators for the Defendant seized allitems of furniture, bedding, sheets, etc., that the child claimed she and the Defendant had come incontact with at the time of the offense. These items were examined by forensic experts preparedto testify that there was no evidence of blood or semen on any of the items.

Continued• STATE OF ALABAMA V. OTWELL, Sexual Abuse First Degree (2CTS), Phoenix City, RussellCounty, ALThe medical records of the vaginal examination of the alleged victims were reviewed by Dr.Matthew Seibel who found that the medical examination was normal in all respects and thatthe findings were all consistent with the girls not having been sexually molested• STATE v. JOHN DOE 1 and JOHN DOE 2, FULTON COUNTY SUPERIOR COURT, Charges:Aggravated Child Molestation (2 Counts) and Aggravated Sodomy (2 Counts)The defense had a forensic pathologist, a pediatrician, and a colon and rectal specialist allreview the case. All medical experts for the Defendants agreed that the child’s claim ofrepeated anal intercourse was inconsistent with the absence of any symptoms beingdisplayed by the child during the time, i.e., no expression of pain, no problems with bowelmovements, no problems with constipation, and no bleeding in underwear. All experts forthe Defendants agreed that without these symptoms it was highly unlikely that the childhad experienced what he had claimed.

Continued• STATE v. BLANEY, Fayette County Superior Court , Charges: Aggravated ChildMolestation and Contributing to the Delinquency of ChildrenDr. Astrid Heger, a pediatric gynecologist at the University of Southern California,reviewed the records of Dr. Butcher and Dr. O'Heron. After reviewing thematerial, Dr. Heger felt very strongly that Dr. O'Heron's findings are not consistentwith sexual abuse.Dr. Yordan, a nationally recognized pediatric gynecologist at St. Francis Hospital inHartford, Connecticut also reviewed copies of Dr. Butcher's and Dr. O'Heron'sexams. The description of hyperemia, erythema, and the edema are all nonspecific findings and she believed to be normal. Overall, she feels that the examwas normal.The defense had two additional medical experts to review the case. Dr. KrisSperry, Chief Medical Examiner for the State of Georgia, and Dr. Joseph Burton,former Medical Examiner for several metropolitan Atlanta counties, bothreviewed the case and concurred with the findings of Dr. Hager and Dr. Yordan.

Continued• STATE v. PAULL, Aggravated Sexual Battery (2 counts) and Child Molestation (3 counts), CobbCountyThe defense had several experts review the case. After reviewing the allegations of vaginaland anal penetration, a forensic pathologist for the defense was prepared to testify that thechild’s lack of description of pain surrounding the penetration, as well as a lack of anysymptoms during the times in question, were inconsistent with the child’s claims.• STATE V. MIRACLE, Child Molestation; Sexual Battery, Cobb CountyWith no physical findings by the medical staff, the Defense’s forensic medical expert wouldtestify that the medical findings did not support the type of lengthy and painful masturbation/ touching alleged.• STATE V. CHRISMAN, Child Molestation, Newton County Superior CourtThe victim’s life long pediatric medical records showing that there had been an ongoinghistory of chronic yeast infections and that the suspicious findings of her medicalexamination in this case were consistent with repeated medical findings throughout her life.

Continued• STATE V. LEAP, Child Molestation, Clayton County Superior CourtAlso, the Defendant countered the State's case with a Forensic Pathologists' testimony thatthe medical findings were inconsistent with the child's claim of penetration.• STATE V. PACKARD, Aggravated Child Molestation and Aggravated Sodomy , Barrow CountySuperior Court• The defense had a Pediatric Gynecologist review the allegations of rape made by the victim,as well as the medical records of the examination of the victim at Egelston Hospital whichrevealed a normal examination with an "intact hymen". The Defendant's expert wasprepared to testify that the State's examination was inconsistent with the victim’s claim ofrepeated rape. Counsel for the Defendant had the Defendant examined by Colon and RectalSurgeon who found the Defendant's rectum to be normal. The surgeon was prepared totestify that had the Defendant been subjected to repeated penetration with the woodendildo as alleged by the victim, there would have been residual scarring. Therefore, theDoctor's examination was inconsistent with the claims of the victim.• STATE V. HARPER, Charge: Child Molestation (3 Counts), Walton County Superior CourtThe defense obtained reports form medical experts who were prepared to testify that theacts of digital penetration into the child’s vagina as alleged, with an absence of any outcry,symptoms, pain, trauma, bleeding, etc. is not what you would be expected.

Continued• GOLDSTEIN V. STATE, Motion for New Trial and Appeal to the Georgia Court ofAppeals From the Superior Court of Fulton County following Defendant’sConviction for Aggravated Sexual Battery and Child Molestation .At the Motion for New Trial hearing, present counsel presented testimony of twomedical experts, a forensic pathologist, and a forensic pediatrician. In directcontradiction to the State’s expert, the forensic pathologist at the Motion for NewTrial for the defense explained that a hymen in a seven year old child is extremelydelicate, sensitive, and easily traumatized. She stated that penetration asdescribed by the alleged victim would be extremely painful unlike the descriptiongiven by the alleged victim in the case. Also, the forensic pediatrician testifiedthat the description given of the hymen by the State’s expert in the jury trial wasincorrect. The description given was that of an adult hymen and not one of aprepubescent child such as the victim. In her opinion the child’s statement wascompletely inconsistent with the alleged act of penetration into her vagina. Theforensic pediatrician presented by present counsel testified that she specializes insexual abuse evaluations, lectures frequently nationally to physicians and lawenforcement agencies, has testified approximately 50 times in court and this wasthe only time she was willing to testify for the defense in a sexual abuse case.

Continued• STATE v. SHELTON, Gwinnett County Superior Court, Charges: Aggravated Child Molestation,Aggravated Sexual Battery, and Child MolestationThe Defendant presented medical testimony from an expert that the alleged victim’s description ofher symptoms during her medical examination, as well as an absence of symptoms being observedduring the times of the alleged assaults, were all inconsistent with her claims of anal penetration.• STATE V. KOPERDA, Child Molestation, Statutory Rape, Incest, Gwinnett CountyThe defense also arranged to have the victim subjected to a medical examination and the doctor’sreport stated her pelvic exam revealed normal external vaginal findings, no evidence of recent orpast trauma.• STATE v. JOHN DOE, Gwinnett Superior Court (Juvenile Indicted as Adult), Charges: Rape,Aggravated Sexual Battery, and Child Molestation (3 counts)The defense was also prepared to present expert testimony from aForensic Pathologist that wouldhave shown inconsistencies between the physical/medical evidence, with the allegations of howthe assault took place.

Continued• STATE v. RIDGEWAY, Aggravated Sexual Battery and Aggravated Child Molestation, Gwinnett CountySuperior CourtThe defense did preliminary research into worm infestation in children and provided research to theDistrict Attorney that 1 in 5 children can be infected with pin worms and that the symptoms include“itching and irritation of the anus”. The Detective’s preliminary hearing testimony included thedescription given by the Sexual Assault Nurse Examiner to the Detective regarding the nurse’sexamination of the alleged victim and that the nurse had observed bruising and a slight cut at the analopening, as well as bruising on one of the child’s buttocks. The defense further consulted with a forensicpathologist who stated that, based on the information available to the defense, that the bruising noted atthe examination would be consistent with the observations of the witnesses describing the childscratching at the child’s anal area, and the child running into the door.• STATE V. ROUTH, Felony Murder, Cruelty to Children, Aggravated Child Molestation and AggravatedSexual Battery, Gwinnett County Superior CourtWhen the EMTs answered the Defendant’s 911 call, they observed what appeared to them to be hervagina “gapping open”. The emergency room doctors at Emory Eastside Hospital as well as other treatingphysicians at Egleston Hospital all described vaginal tears which they stated were consistent withattempted digital penetration. The State’s medical examiner concurred with all the treating doctors atEmory Eastside Hospital and Egleston Hospital, that the child had been subjected to digital penetration inher vagina. The defense medical experts further noted that the child had a documented history of eczemain her vaginal area as well as reports of scratching herself from her own family members and that thevaginal findings were consistent with her having scratched herself.

Defense Medical Expert’sReview of Case• Discovery from State– Police reports– Reports from State Medical Experts– Charging documents• Warrants• Indictment• Transcripts of Trial and Pretrial Evidentiary Hearings– Preparation of summary review notes by defense lawyer• See “Comparison of Genital Examination Techniques in Prepubertal Girls”, by John McCann,MD; Joan Voris, MD; Mary Simon, MD; and Robert Wells, PhD, Pediatrics, Vol. 85 No. 2,February 1990 and “Genital Findings in Prepubertal Girls Selected for Nonabuse: ADescriptive Study”, by John McCann, MD: Robert Wels, PhD; Simon, MD; and Joan Voris, MD,Pediatrics, Vol. 86 No. #, September 1990.• At post conviction hearing, in order to withstand cross examination, defense medical experthas to have reviewed and be familiar with all aspects of case and knowledgeable of all itemspresented to judge and jury at trial.• For Sample of “Overview Letter to Defense Expert with Index of Materials Provided forReview”, See Appendix, State v. Goldstein, pages A014‐A022.

How Many Defense Medical ExpertsDo You Need?• As many as you can get!• Realistic thoughts to keep in mind:– The Judge heard the same evidence the jury didand believes firmly in your client’s guilt. It takes alot to overcome that.– Juries may not always understand the details ofexpert testimony; however, they do know how tocount!

Drafting your Motion for NewTrial/Application for Writ of HabeasCorpus• GROUND NO. 1: Ineffective assistance oftrial/appellate lawyer for failure to introducemedical expert testimony to contest medicalexpert testimony from State’s expert.• Defendant’s 6 th Amendment Right to EffectiveAssistance of Counsel• Failure to introduce expert testimony to contestmedical facts presented by State’s expert witness• What a qualified and unbiased medical expertwould have testified to.

– SUPPORTING FACTS FOR GROUND NO. 1:• Only evidence• Funds were available• Failed to hire• Not trial strategy• Devastatingly prejudicial– For Sample of “Application for Writ of HabeasCorpus”, See Appendix, Hunt v. State, pages A023‐A026; for Sample, of “Motion for New Trial”, SeeAppendix, Goldstein v. State, pages A027‐A037.

Request for AdditionalMedical Records• Trial lawyer and appellate lawyer were not provided with medical recordsof sexual assault examination.• Trial lawyer failed to request records of sexual assault examination.• Trial lawyer and appellate lawyer failed to request historical medicalpediatric records on alleged victim during time child claimed repeatedsexual assaults involving penetration. For Sample of “Application for Writof Habeas Corpus, Ground 13 and Supporting Facts”, See Appendix, Nowillv. State, pages A038‐A042.• Importance of filing ex parte written theory of defense regardingrelevance of records for Court’s review under seal• For Sample of “Motion for Issuance and Enforcement of Subpoena forAdditional Medical Records”, See Appendix, Goldstein v. Georgia, PostTrial Motion for Order for Production and/or Order for Enforcement forSubpoenas for Medical Records and for Permission of Court to file ExParte Theory of Defense Under Seal, pages A043‐A049.

To Simplify Production of Records• To facilitate production of confidentialmedical records, and to minimize motions toquash, consider the issuance of the subpoenaaccompanied by letter providing option ofproducing records in advance, under seal,directly to court, in lieu of court appearance.For Sample of “Letter to AccompanySubpoena”, See Appendix, Goldstein v. State,page A050.

Interview of Trial Counsel/Appellate Counsel• Caution in interview as with interview of any other witness– Presence of investigator– Interview should take place after all issues in motion/petition havebeen finalized (but prior to filing of motion and notice to prosecutor)– Consider providing copy of final motion/petition for their review– Consider preparation of affidavit for trial/appellate lawyer to signconfirming their position on issues– Confirm in writing to trial/appellate counsel following interviewrestating their position and right to correct if they feel necessary– Provide copy of article “The Defense Attorney’s Ethical Response toIneffective Assistance of Counsel Claims” (The Georgia PublicDefender Standards Council) by Michael Mears regarding properresponse of lawyer who is being alleged to be ineffective (SeeAppendix pages A051‐A091).

Testimony of the Trial/AppellateLawyer at the Post Conviction Hearing• Important Points to Develop:– Lawyer received pretrial notice from State thatmedical experts would be called for the State totestify– Funds were available for the defense to pay formedical experts to review the case– No medical experts for the defense were contactedand non reviewed the case– There was no strategic reason not to have the casereviewed by medical experts for the defense– Now being informed of the opinion of the defensemedical expert, the lawyer would have called thatexpert to testify

Appellate Brief• Statement of Facts– Trial– Motion for New Trial– For Sample of “Appellate Brief”, See Appendix,Goldstein v. State, A092‐A102.

The Successful PostConviction Ruling• “Having heard the evidence and argument, and having reviewed the evidence attrial, the Court finds that Defendant has shown that trial counsel was ineffective.”• “This is obviously a very unique case, and a complex case, in terms of the medicalissues involved, which issues presently still seem to be evolving and are incontroversy in the medical community”• “Considering the first prong of the Strickland case, the Court concludes that in thistrial his assistance was ineffective in the following regards: first and foremost,counsel’s failure to properly investigate a defense based on Jaden Paige’s medicalhistory that could have indicated this death was the result of complications arisingfrom his sickle cell disease. (The trial lawyer) testified at this hearing that he neverseriously considered using a sickle cell defense, as the case progressed, becausehe did not have the witness.”• See Sample of “Ruling on Motion for New Trial by Trial Judge”, See Appendix,State v. Ware, pages A103‐A105.

The SuccessfulPost‐Conviction Ruling• “(The Trial lawyer) did not consult with medical doctors to determine thevalidity of those opinions. He testified expressly that no strategic reasonexisted for this failure; it simply never crossed his mind.”• “Testimony from credible, objective scientists was available to trialcounsel to completely refute the State’s experts’ opinions andsubstantially undermine the State’s case.”• “For no strategic reason, the jury was left with the impression that theopinions of the State’s expert witnesses were unassailable. We mustagree that this omission fell below the standard of acceptableprofessional conduct.”• “A reasonable possibility –even a strong possibility – exists that had trialcounsel’s performance not been deficient, the outcome of the trial wouldhave been different.”• See Sample, “Ruling by Georgia Court of Appeals”, See Appendix,Goldstein v. State, pages A106‐A112.