2012 – Accused & Adjudicated

by Kristine Erickson

When the allegation emerged in early 2012 that their 5-year-old granddaughter had been molested in their home, Luke’s parents were stunned. They couldn’t believe Luke would do such a thing and couldn’t think of a time when it might have happened. He was hardly ever home when the grandchildren were there, and he was never alone with them. Whenever he wasn’t involved in school, sports, or church activities, he was helping his father on renovation projects at customers’ homes. Children both younger and older than Luke were constantly in the Heimlich home, and no hint of inappropriate behavior had ever arisen from any of them.

The report of abuse came from the girl’s mother, who had recently lost a custody dispute with Luke’s older brother. Luke unequivocally denied the accusation, and his parents had every reason to consider him trustworthy. After agonizing family discussions, the girl’s father took her to a Children’s Advocacy Center (CAC). This was probably unavoidable, no matter whom he initially believed. Failing to report an allegation of child abuse could be grounds to remove both children from his custody.

To a falsely accused person, the mission description on CAC’s website is not reassuring:  “Children’s Advocacy Centers are child-focused, child-friendly facilities where children and their families feel safe enough to get the help they need to stop abuse and begin the process of healing.” It goes on to describe CAC’s role in helping law enforcement increase the number of successful prosecutions. The priorities include no mention of seeking the truth.

We have come a long way from the child sex-abuse hysteria that swept the country 35 years ago, when interviewers goaded young children into making allegations that sent innocent people to prison all over the country. But recent research in several countries, including the U.S., has shown that forensic interviews of young children still include too many leading questions, even after interviewers have been trained in best practices. Research results are described starting around the 20-minute mark in the following video, which was produced at Abertay University in Scotland.

https://www.youtube.com/watch?v=RQrHHRqrPG8

Cornell University has done extensive research on the suggestibility of children and the accuracy of their memories. The following video, narrated by Dr. Stephen Ceci, shows how hard it is to figure out whether young children are describing things that actually happened. Nine minutes into the video, Dr. Ceci recounts a situation in which he would advise his own son to plead guilty even if he was innocent.

https://www.youtube.com/watch?v=Q-B4AsF1ma0

In March 2012, Luke was officially charged with molesting his niece. His parents met with a lawyer, who outlined the immediate steps they should take and the options they would have next. Luke’s mother recently showed me her handwritten notes from their first meeting with the lawyer. At the top of the page is “Arraignment – plea not guilty.” The rest of her notes outline all the documents they would need to procure and the procedural steps they would have to take during the coming weeks. At the bottom of the page, she wrote, “2 paths: 1) trial or 2) plea bargain.”

In most states, including Washington, juveniles are tried by a judge instead of a jury. Luke’s lawyer gave him a grim prognosis for his chance of convincing a judge he was innocent. The pain of that experience is still visible on the face of Luke’s mother when she recalls the words that were directed at her son:  The judge won’t believe you, and people will hate you for making a little girl talk about this. The lawyer was probably right, but the mother’s heart was broken. A vigorous defense of their son would have little chance of success, and their 6-year-old granddaughter would be harmed in the process. A plea bargain seemed to be the only reasonable option, which is the same conclusion reached by nearly everyone in this situation. More than 95% of all juvenile court cases end with a plea agreement (which is also true in adult criminal courts).

Luke’s lawyer recommended Washington’s Special Sex Offender Disposition Alternative (SSODA). This includes a program of therapy and a 2-year probation sentence, which would enable Luke to live at home, attend his regular school, and play on his sports teams. By the scheduling conference at the end of April, Luke’s parents had decided on this option, and a “Plea & Sentencing” hearing was set for July 30.

On the appointed date, they met with the lawyer just before entering the courtroom. When he showed them the plea agreement with GUILTY printed at the top of the page. Luke’s parents refused to allow it. Until that moment, they somehow thought their son would be pleading “not guilty.” For months they had been referring to their handwritten notes to make sure they didn’t miss a step in the process. The top page was from the first meeting with the lawyer, when they wrote “Arraignment – plea not guilty.”

People familiar with legal procedures know arraignment happens early in the process, but many of us could easily suffer from the mistake Luke’s parents made. I recently searched the Pierce County website to see if the Juvenile Court provides helpful information about SSODA procedures. There I found this FAQ page, which describes exactly what Luke’s parents thought would happen.

https://www.co.pierce.wa.us/faq.aspx?TID=131

What will happen at arraignment? “On the day of the hearing, the youth will plead ‘not guilty’ to the offense …”

Wait. What happens after that? There’s nothing about a “Plea & Sentencing” appearance, a guilty plea, or a confession. It looks like the kid pleads “not guilty” and magically goes straight to SSODA probation. God help the kids and parents who try to navigate the labyrinth with this for a guide. The same misleading information is in the SSODA handout sheet posted on the county website for use by probation officers.

Pierce County Juvenile Court SSODA Handout

Luke’s lawyer asked for a continuance, and the plea hearing was rescheduled for August 27, with a potential trial date on September 18. After four weeks of agonizing over impossible choices, Luke and his parents returned to court. As millions of people now know, Luke signed the guilty plea, including a “confession.” Just above the signature line on the state’s standard plea agreement is a box titled:  “The judge has asked me to state in my own words what I did that makes me guilty of this crime.” For a sexual offense, a lawyer’s typical boilerplate statement is, “I admit that I had sexual contact.”

When I first looked into Luke’s case, I was shocked he had been forced to “confess.” In Washington State, as in most other states, the defendant is entitled to continue asserting his innocence even if he agrees to plead guilty (commonly known as an Alford plea). I eventually learned a 2006 amendment to the adult criminal code took away the right to an Alford plea specifically for a SSODA sentence. The adult criminal code shouldn’t apply to a juvenile, but it seems to be applied in practice. Based on statistics maintained by the National Registry of Exonerations, youth under 18 are three times more likely than adults to submit false confessions. When a 16-year-old boy “confesses” under these conditions, I’d have to say it was coerced.

Of the many falsehoods that have appeared in the media, one of the most damaging was the statement by the girl’s mother that Luke “accepted the plea the day before her daughter was set to testify” (Sports Illustrated 5/16/18). That has been repeated and retweeted countless times to reinforce the image of Luke as a guilty boy who caved at the last moment to avoid a harsher sentence.

Since there are no public documents available to refute that statement, I will reference the 6/8/17 Oregonian article:  “The guilty plea eliminated any need for ‘further interviews of the victim or her testimony at trial’ prosecutors wrote.” What further interviews? If the girl had been scheduled to testify the following day, her interviews would have already been done. The point of the plea agreement was to spare her from all of that.

It is long past time for the media to start connecting the dots and ask the girl’s mother a few hard questions. I suggest starting with this one:  “Why on earth did you encourage the Oregonian to publish this story instead of pleading with them to spare your daughter from such horrendous exposure?”

There was one bright prospect Luke and his parents counted on through all the challenges and indignities of the next several years. If he faithfully did everything asked of him, he could return to court at the end of August 2017 and have his juvenile record sealed. As promised in Washington State law, “Thereafter the proceedings in the case shall be treated as if they never occurred.” RCW 13.50.260(6)(a)

Luke was less than three months from the finish line when the sky fell on him.

The Sports Illustrated article includes this statement about the Oregonian’s reasons for breaking the story:  “Top editor Mark Katches cites competitiveness, public safety and the surfacing of a criminal record of a public figure as factors in his decision to run the piece.”

Before accepting a guilty plea in August 2012, the judge should have turned to Luke’s parents and added a caveat:  If your son succeeds beyond your wildest dreams and becomes a target of opportunity for the media, then forget the promise of a clean slate in five years, because the confession we extract from him will be broadcast to the world and will follow him to his grave.