To All Chicago Lawyers

DiCaro’s article: Luke Heimlich, very bad takes, and the problem with second chances

DiCaro says: “And let’s be clear, while Heimlich pled guilty to a single count of child molestation, the allegations against him were that he repeatedly molested his niece from the ages of four to six.”

My response: Yes, let’s be clear. Every lawyer knows that anybody who agrees to a guilty plea has actually committed every offense the prosecution charged him with. How long did she practice law? She never experienced or hasn’t read about the egregious practice of prosecutors stacking on extra charges in order to coerce a guilty plea? If not, I suggest she go to the Relevant Research page and read about the 68-year-old woman in Molalla, Oregon, who was charged with resisting arrest because she didn’t open her door fast enough when the police pounded on it in the middle of the night. The rest of the details in that case may change your opinion about our current religion that the child must always be believed.

DiCaro says: Just in case the vultures of the world haven’t picked this girl’s carcass clean yet, here are the explicit details of the alleged offense, one more time.

My response: No. I confess. DiCaro didn’t actually say that. She simply inserted the explicit details to help make sure they will reside in so many places online that the girl will never escape them as long as she lives. The media’s abuse of this girl will roll on for decades, and none of them ever acknowledge that.

DiCaro quotes: “Prosecutors initially charged Heimlich with two counts of molestation for incidents between September 2009 and September 2010, and between September 2011 to December 2011. In Washington, child molestation in the first degree is a Class A felony.”

My response: FALSE. Child molestation in the first degree is a Class A felony in Washington if an adult commits the offense. It is not a felony charge in juvenile court. Also, I find it interesting that the final charge wound up being a single count from February to December 2011, whereas the February to August 2011 date span wasn’t covered originally. It sort of sounds like they were making it up as they went along. In any case, the custody dispute between the girl’s parents ran from January to August 2011. The mother lost, and the daughter’s first visit to her mother’s home 700 miles away was during the Christmas 2011 school holiday. Immediately after that visit, the mother made the allegation against Luke. This very suspicious timing is NEVER mentioned by anyone in the media. The court documents from the divorce and custody dispute are public records in Pierce County, Washington. You can easily find them on the internet and download them instantly after paying 25 cents a page. There are so many ‘investigative’ reporters regurgitating every ounce of dirt they can in this case, and nobody has ever mentioned this.

DiCaro says: “Heimlich pleaded guilty to the sexual abuse after working out a plea deal with his private attorney, in open court, before a judge, denying that he had been coerced or promised anything in exchange for his plea.”

My response: Part one, just weird. Why do media people keep saying, “in open court?” Is there a “closed court” where a kid’s guilty plea would be less damning? And, before a judge. Yes, a juvenile court judge who has God-like powers to demand whatever he wants from helpless children, including a coerced 10-word legal boilerplate admission of guilt. Luke didn’t have the constitutional rights adults have. He didn’t have the right to a jury trial. He didn’t have an ‘Alford plea’ option or a ‘nolo contendere’ option or any other escape route Chicago lawyers keep imagining. Luke’s options were 1) to sign an agreement containing the 10-word boilerplate ‘confession’ or 2) tell his lawyer to put the little girl through the wringer and try to prove her mother, in retaliation for losing the custody battle, planted these thoughts in her mind.

Part two, TRUE. Yes, of course, Luke denied he had been coerced. All kids deny it before the judge. What choice do they have? “Yes, your honor, I was coerced.” Where would they go from there? In 2012, the year Luke went to court, only FOUR juveniles managed to get acquitted in Pierce County, Washington. Luke was one of nearly a thousand kids who submitted a guilty plea that year. Forty other kids bravely proceeded to trial, thinking they could prove their innocence, but they were wrong, they were adjudicated guilty, and they were incarcerated. So four kids out of 1000 managed to prove their innocence, and DiCaro thinks Luke should be condemned for life because he pled guilty at the age of 16. Read the open letter from Luke’s parents explaining the choices they faced and the reasons they convinced him to plead guilty.  (In fairness to DiCaro, the parents’ letter hadn’t been published when she wrote her article.)

Part three, FALSE. Of course promises were made. Why would anyone plead guilty if no benefits were promised in exchange? Item 18 on the seven-page blank form for a Washington State Juvenile Court Statement on Plea of Guilty says: “No one has made any promises to make me plead guilty, except as written in this statement.

1. 1. The reduction to a single charge was a promise that induced Luke’s guilty plea, though now DiCaro uses his guilty plea as a reason to condemn him on all charges.
   2. The sentence of probation instead of incarceration was a promise that induced Luke’s guilty plea, though now DiCaro uses his guilty plea to condemn him to a lifetime of confinement, where the career he has worked so hard for is off limits.
   3. Although it wasn’t written in the plea agreement, there’s an implied promise in Washington State law, which enables a juvenile record to be sealed after five years if the kid does everything that’s asked of him and maintains an impeccable record in the meantime. Here is the implied promise that was a major inducement to plead guilty: “If the court enters a written order sealing the juvenile court record pursuant to this section, it shall, subject to RCW 13.50.050(13), order sealed the official juvenile court record, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed.” [RCW 13.50.260(6)(a)] DiCaro and the rest of the vigilante mob set themselves above the law and demand that Luke’s juvenile guilty plea follow him to his grave.

DiCaro says: “In this case we have a criminal charge.”

My response: FALSE. Juveniles are not charged with crimes. They are charged with offenses that would be crimes if committed by an adult. This may seem like a technicality, but the US Supreme Court has ruled that, precisely because of such technicalities, juveniles don’t need constitutional rights.  For more on this subject, see the Juvenile Injustice page.

DiCaro quotes a Peter Gammons tweet that says, “Neither you, I or his teammates actually know the true story of what happened.” Then DiCaro says: “That’s true,technically. But the spirit of the statement is intellectually dishonest. We know what happened officially, because we have a court transcript and plea documents and charging papers. We know what Heimlich and the prosecutors agreed happened. And it’s not a pretty story.” Later in the article, DiCaro says this: “In another life, I was a criminal defense attorney. I represented men and boys accused of raping and hurting women. I also represented men and boys who were railroaded into pleading guilty for reasons beyond their control. The concept of pleading guilty in order to limit the damage to the defendant is one I know well. I often said to my clients, “Sometimes the best I can do is to limit and control what is about to happen to you. At the same time, my clients were largely people of color. ”

My response: Inconsistent and/or prejudiced. So, in DiCaro’s world, a white kid is damned forever based on his guilty plea, and anyone who suggests room for doubt is “intellectually dishonest.” However, she would believe a juvenile of color who says he is innocent despite his guilty plea. Also, she says a 16-year-old white boy who submits a guilty plea has agreed with the prosecutors, but people of color who plead guilty are just trying to limit the damage. DiCaro is cut from the same cloth as Luke’s prosecutor, John Neeb, who later told the Oregonian, “If a person who pled guilty says they’re innocent, then they’re saying they lied to the judge at the time they entered their plea.” For more information about John Neeb, his ‘multiple episodes of prosecutorial misconduct,’ and the deeply troubled Pierce County Prosecutor’s Office, see the 7/16/2018 story I posted on the Updates page.

DiCaro says: “Secondly, he didn’t do everything he was legally required to do. It was Heimlich’s failure to report in for his annual sex offender registry check in that brought the story to light in the first place.”

My response: FALSE. Luke’s Washington juvenile record was exposed due to a mistake by local law enforcement officers in Benton County, Oregon, who incorrectly cited him for failing to comply with a section of Oregon law that didn’t apply to him. By the time the Oregonian published its original story, the charge in that case had already been dismissed by a county circuit court judge. The court later ordered the arrest record expunged. The expungement court order concludes with the following emphatic statement: “Now, therefore, it is hereby ordered, adjudged, and decreed that the Defendant’s arrest record herein should be and the same is hereby set aside pursuant to ORS 137.225, and hereafter the Defendant for all purposes of the law shall be deemed not to have been previously arrested herein.”

The Benton County charge was dismissed May 17, 2017, and the 6/8/17 Mark Katches article in the Oregonian said Danny Moran did a background check on Luke Heimlich May 18. The expungement court order was issued November 27, 2017. The delay in sealing the Benton County record led to all the ensuing trauma suffered by the Heimlich family and countless others. The 6/8/17 Danny Moran article in the Oregonian includes multiple references to Luke’s “registration lapse” and “criminal citation” before finally revealing far down the page that the charge had been dismissed. The world’s attention span doesn’t last for 30 paragraphs, and most people have since regarded the Oregon citation as additional evidence that Luke is a lawbreaker. This is what happens when journalists do nothing but regurgitate the same falsehoods that were first published by dishonest reporters. A link to the relevant 23,250-word convoluted Oregon statute is provided on the Juvenile Injustice page.

DiCaro says: “The ramifications of talking about ‘gathering facts’ and then limiting those facts to one’s athletic performance are problematic enough. But Moore appears to be making up facts at the end, implying that Heimlich’s family has forgiven him, which doesn’t appear to be the case.

My response: FALSE. Dayton Moore knows a LOT more about the Heimlich family than DiCaro, which should be evident now that Luke’s parents have issued an open letter to the world, which confirms they have always believed Luke is innocent. For over a year, the media have been treating the non-custodial ex-wife, original accuser of Luke, and enthusiastic cheerleader for the horrendous exposure of her daughter as if she speaks for the Heimlich family. By encouraging the Oregonian to expose Luke’s juvenile record, the ex-wife has demonstrated to the world that she hates the Heimlich family more than she loves her own daughter, who will be dealing with the collateral damage from this for years to come.

DiCaro quotes: “The victim’s mother said she doesn’t understand why Heimlich has been allowed to play baseball at Oregon State. The Oregonian/OregonLive does not name the victims of sexual abuse and is not naming the girl’s mother to protect the identity of the child, now 11 years old.”

My response: Foolish. Oh, by all means, repeat the Oregonian’s pious statement about protecting the identity of the child. The Oregonian article made it clear the girl’s last name is also Heimlich. She lives in a small town where the family is well known. As her father subsequently said, “How hard was it to figure that out?” Within a day or two after publication, the girl was being questioned about the story by kids in her school. Her father has had to deal with the emotional fallout from that, because the non-custodial mother lives 700 miles away. The Oregonian invaded this girl’s privacy for life and exposed her to the indignity of having explicit details of her supposed abuse regurgitated by millions of people. Details which DiCaro has thoughtlessly repeated.

Dicaro says: “It’s also worth noting that it was Heimlich’s brother who brought his daughter’s allegations to authorities. He no longer speaks to Heimlich.”

My response: Duh! If anyone had bothered to do a simple Google search and look at the timeline of the brother’s divorce and custody dispute, what happened here would be blindingly obvious. Once the ex-wife made the accusation, Luke’s brother was compelled to report it. Failing to do so could have been grounds to remove both children from his custody. Option 1: Don’t report the ex-wife’s accusation and thereby risk losing his children. Option 2: Report the accusation and risk terrible harm to his family. Checkmate! And lastly, the current relationship between the brothers in the deeply wounded Heimlich family is none of the world’s business.

DiCaro says: “Because I was a public defender, all my clients were poor. Many didn’t have a support system, a job, a family that backed them. They definitely didn’t have the money to hire an attorney that could devote unlimited resources to their defense.”

My response: Uninformed and prejudiced. In fact, Luke’s father had lost his construction job during the Great Recession. By the time Luke was accused, his family had managed to survive more than two years with his father doing freelance work, pick-up jobs, and renovations for friends and acquaintances. If they had managed to hire an attorney who could devote significant resources to Luke’s defense, they would still have done so at risk of harming their granddaughter. Even with an all-out effort, the deck would have been stacked against them. Between 2012 and 2017, only 15 juveniles managed to get acquitted in Pierce County Juvenile Court. That’s right. No typo. FIFTEEN kids acquitted in six years. Nearly 4700 saw the handwriting on the wall and agreed to plead guilty. There were 89 brave kids who proceeded to trial thinking they could prove their innocence, but their attorneys failed to work a miracle.

DiCaro says: “Never mind that, before criminal charges were approved, the victim would have been subjected to medical exams, looking for physical evidence of sexual abuse, as well as repeated interviews by experts trained in ferreting out false allegations by children, as well as child psychologists who specialize in interviewing children of sexual abuse.”

My response: FALSE. The girl was subjected to a medical exam, and NO physical evidence was found. If any such evidence had been found, it would have been in the prosecutor’s charging statement, and you can be sure the execrable Oregonian would have broadcast it to the world. Furthermore, if such evidence had been found, it is highly unlikely Luke would have been allowed to plead guilty in exchange for a probationary sentence. He would have gone straight to the slammer. It was contemptible for DiCaro to imply that physical evidence was probably found in this case.

And NO, the girl wasn’t subjected to repeated interviews. She was apparently interviewed once shortly after her mother made the accusation. Then Luke spared her from further interviews and trial prep by pleading guilty. The original 6/8/17 Oregonian article said this: “The guilty plea eliminated any need for ‘further interviews of the victim or her testimony at trial’ prosecutors wrote.”

As for the “experts trained in ferreting out false allegations” and “child psychologists who specialize in interviewing children,” DiCaro has WAY too much faith in them. See the Relevant Research page, which contains links to several university studies that reveal interviewers often fail to follow best practices. And that’s assuming they have best practices to begin with. When I eventually found the Washington State Child Interview Guide that was in effect eight years ago, I was shocked to see the description of the recommended ‘funnel approach,’ which starts with open-ended questions and “If the child does not answer, move down the list… If these invitations are not successful, ask the more focused questions you formulated based on the background information you have.”

And this is where confirmation bias can be deadly: “Ask the child if someone (possibly the person who reported) is worried about something that happened, and ask the child to tell you what that person is worried about.” Well, serve it up on a silver platter, why don’t you? Ask the girl what her accusing mother is worried about.

And finally, if the previous steps have failed to produce the desired outcome, which is to get the child to talk about abuse the authorities believe occurred, the interview guide recommends a targeted question like this: “I heard something might have happened in Luke’s bedroom. Tell me about that.”

DiCaro says: “It’s worth noting that, despite his repeated professions of innocence, Heimlich has not sought to vacate his guilty plea. He hasn’t claimed he was coerced into it. He hasn’t said it was involuntary. He hasn’t charged his attorney with ineffective assistance of counsel. He hasn’t sought to expunge his record.”

My response: News flash to all Chicago lawyers – Luke’s juvenile record was sealed in August 2017. He pled guilty based on the promise in Washington State law that his record could be sealed after five years, and, “Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed.” [RCW 13.50.260(6)(a)]

There is no conviction to vacate. There is no record to expunge. Under the law, Luke has an unblemished record. Yet now the vigilantes of the world condemn him to a life sentence. Where does he go to get that vacated and expunged? Luke is an honorable man, so he didn’t try to throw the blame on his parents or his attorney by claiming he was coerced. The adults of the world should be able to figure out what constitutes coercion for a 16-year-old boy in his situation. And now we have the 7/20/2018 open letter from Luke’s parents confirming they instructed Luke to plead guilty, because they believed it was the best option for his future and for healing their family.