Sunday, February 10, 2013

“Did someone touch you at day care?”

Testimony from children can make or break sexual abuse case

If David Glenn Smith, the Des Moines man accused of sexually abusing children at his wife’s in-home day care over the span of four years, is tried in court, the nature of the case will pose unusual challenges for prosecutors.

There is no physical evidence in the case, police say. Prosecutors are relying solely on the testimony of the alleged victims and witnesses, who are all younger than age 10.

As investigators experienced in a recent Polk County case that was retried after an appeal to the Iowa Supreme Court, putting a child on the witness stand has inherent risks.

In an interview, Polk County Attorney John Sarcone said he could speak only in general about child abuse cases, and not specifically about Smith’s case.

“They’re not the easiest cases in the world, but they’re ones that need to be brought,” he said.

Some child abuse cases are resolved before a trial, but if that doesn’t happen, the alleged victim usually must testify. Preparing children to recount the abuse they endured and to face their alleged abusers in court is especially difficult, Sarcone said.

“You wouldn’t believe the damage that is done to some of them, and it takes a long time to recover from those things,” he said.

In certain circumstances, when appearing in the courtroom would inhibit a child’s ability to testify, children are allowed to provide their testimony by video. Even then, some children clam up, Sarcone said.

He cited the 2009 trial of Matthew Elliott, who was accused of killing a 7-month-old girl in 2007 in the West Des Moines home where he was staying. Prosecutors called on the 7-year-old uncle of the victim to testify.

The boy had originally told investigators he saw Elliott carrying the baby’s lifeless body, but in his videotaped interview before the court he balked, saying he did not remember what he told police.

Elliott was convicted anyway, but the Iowa Supreme Court in 2011 awarded him a new trial, out of concern that detectives’ testimony about what the 7-year-old originally reported amounted to hearsay without the boy’s testimony.

Elliott was convicted again and sentenced to 60 years in prison.

In the case against Smith, investigators interviewed more than 10 children who attended the day care. Some said they were touched by Smith. Others said they saw Smith touch other children.

According to Polk County court documents, Smith allegedly placed a 9-year-old girl on his lap, put his hands under her clothes and touched her inappropriately.

Smith is charged with second-degree sexual abuse, a felony with a potential 25-year prison sentence.

While Smith allegedly touched several other children, prosecutors decided to file one charge based on the abuse allegation they felt made the strongest case, said Des Moines Police Detective Terry Mitchell.

Some of the children interviewed were as young as 4, and prosecutors felt the 9-year-old could most accurately recount the alleged abuse, he said.

Additional charges are possible, Mitchell said.

Cases often lack physical evidence

A lack of physical evidence is common in child abuse cases, said Dr. Ken McCann, a child abuse medical examiner at the Regional Child Protection Center at Blank Children’s Hospital in Des Moines.

The child protection center is a neutral agency that conducts interviews and medical exams of children involved in physical and sexual abuse cases. There are five such centers around the state.

McCann said he conducts about 1,000 medical exams on children each year. About 95 percent of those children show no physical signs of abuse.

That doesn’t mean there was no abuse. Much of the evidence can heal within a week or 10 days, and abuse frequently is reported much later, he said.

Additionally, many types of abuse — like what Smith is accused of — leave no physical evidence, McCann said.

Mitchell said he is confident in the case against Smith.

The children’s stories corroborate one another, and it’s clear that Smith had the opportunity to commit the abuse, the detective said.

Children who attended the day care at different periods and have never met reported similar types of abuse, which Mitchell said showed the multiple abuse allegations were not a result of children repeating what they heard from others at the day care.

Smith worked nights at the Polk County Juvenile Detention Center, where, county officials say, he had no direct contact with children.

Smith helped his wife, Lisa Rae Smith, run the day care in the afternoon. He watched the school-age children in one part of the two-story east-side home, while she watched the younger ones elsewhere.

There’s no evidence that Lisa Smith knew of the abuse. Some of the children told interviewers that Smith would stop the alleged abuse when he heard her coming, Mitchell said.

Interviewers must use careful tactics

Keith Rigg, a Des Moines defense attorney not associated with Smith’s case, said prosecutors face a risk with relying solely on the testimony of children.

There have been numerous notable cases in which investigators and parents have used leading questions to bring a child to believe he or she was abused by a teacher or baby sitter, when in fact they were not, he said.

“The main pitfall that you have — and historically where these cases have gone very, very wrong — is that you can feed information to a kid, and they will take that information as their own,” he said.

One infamous case started in California in 1983, when a McMartin Preschool teacher was accused of sexually abusing a 2-year-old boy.

Police notified parents, and in time children were urged in interviews to divulge secrets about their school. They responded with allegations of rape, being photographed, secret passageways under the school, satanic rituals and even the sacrifice of a human baby.

After six years of criminal trials, all charges were dropped.

Interview practices have evolved in the decades since.

Locally, most interviews of child abuse victims are conducted by the Regional Child Protection Center.

Interviewing a child abuse victim is a meticulous, research-based process, said Tammera Bibbins, a forensic interviewer at the clinic.

She starts by showing the child the camera in the room and flips on the lights behind a one-way mirror so the child can see where investigators will watch.

Then they talk for a while to make sure the child can tell a coherent story.

The interviewer never uses the suspect’s name before the child does, or asks leading questions such as, “Did someone touch you at day care?” Bibbins said.

She tells the child to be honest, and that it’s OK to say “I don’t know.” Children must not feel they have to say what the adult wants to hear, she said.

“In the real world, the adult is the one with all the answers,” she said. “Sometimes kids go along with what they think adults want to hear. We try to turn that around and make them the ones with all the answers.”


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