LAST AMENDMENT* (lxxxvi)

FALSE ALLEGATIONS OF SEXUAL ASSAULT: A CASE STUDY

The Poet, Oil on Canvas, 24" x 36", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

MeToo is among the most important movements in my lifetime. Who knows where the pendulum will settle, particularly with one of the worst apparent offenders mocking the movement to frenetic applause. Will readers retreat to corners before even considering common ground? Sexual assaults occur with devastating, life-altering consequences for victims, most often girls and women, perpetrated most often by boys and men. Reports of sexual assault occur much less frequently. Reasons are myriad for the fractional number of reports compared to the alarming number of actual assaults, and are largely built into why the movement emerged and developed momentum. Of the reports, unfortuantely, not all are true, and the consequences to the falsely-accused are also devastating with life-altering consequences. Of equal significance, provably false allegations of sexual assault could undermine the credibility of victims and the movement itself.

I have my suspicions why she falsely accused Daniel of crimes that could put him away for life.

I have Daniel’s permission to publish this post. Daniel (not his name) was a client. He’s in his 20s, dates women and was in college when this occurred. According to Daniel, the First Degree Felony charges against him for Object Rape and Aggravated Sexual Assault were the last thing he could have imagined. The charges carried the potential for up to life in prison. He hired a lawyer and dropped $20,000.00 in borrowed funds. For these criminal charges, that’s not much.

Ally (not her name), also in her 20s and in college when this occurred, dated men.

Daniel and Ally went to different universities. They met on what some consider to be a "hook-up" cite, Tinder. A couple days later they messaged to meet in person. They went for a drive in Daniel’s car, talked for a bit, then parked and became somewhat intimate. Daniel dropped off Ally at the apartment she shared with a few college roommates. The next afternoon, after messaging, they got together again, parked in Daniel’s car behind a church and became more intimate. They did not have sexual intercourse. Each later described to police a backseat encounter that differed in at least one rather important point: Consent. This would be classic she said/he said.

As with most of my clients, a police investigator got to Daniel before Daniel got to a lawyer—and before he knew he would need one. Daniel talked. He described both “dates” as fun and Ally as fully engaged. He described their mutual interest in making out during their first get-together. He characterized her as enthusiastic during their second encounter. When he dropped her at the apartment the second time, he explained, her demeanor was no less encouraging of him than it was after the first encounter.

Daniel learned Ally contacted the police after he dropped her at the apartment the second time. She reported Daniel had sexually assaulted her, pulling her into the backseat of his parked car, an older model sedan, then running his hands under her clothes and over her body and inserting his fingers into her vagina, without her consent. She claimed he tried to force her hand down his pants. Ally was rather embarrassed to tell the police officer they’d met through Tinder. So she told him Daniel was a friend of the boyfriend of one of her roommates and the introduction had come through him. The police sent her for a Code R exam. The physical exam was unremarkable.

Ally began posting on social media she was the victim of rape. The outpouring of love and support, thoughts and prayers, encouragement and admiration for having the courage to report this, was remarkable. Ally’s postings complained that men get away with sex crimes and, as an example, she referenced a high-profile case in national news where a convicted rapist spent only a few months in jail.

I was not Daniel’s first attorney. Before I substituted into the case as his counsel, Daniel had what is known as a preliminary hearing. Before a defendant who is charged by “criminal information” may be “bound over” to answer for serious criminal charges, the state, in a sort of mini-trial, must present “sufficient” evidence to a magistrate that a crime was committed and that he committed the crime. "Reliable" hearsay comes in. Except in very limited circumstances, the magistrate cannot assess credibility. The remarkably low and poorly defined standard of proof at this stage is “probable cause.” At least the defendant and his attorney have some opportunity to preview the evidence including witness performance before the defendant is, inevitably, bound over to stand trial on the criminal charges.

Approximately six months after her social media-inspired encounters with Daniel, however, but before Daniel’s preliminary hearing on the sex crime charges took place, Ally reported to university police that Daniel had physically assaulted her on campus where she went to school and worked. She said Daniel had isolated her in the building where she worked, forced her into a restroom, thrust his forearm up against her throat and chest, called her names and threatened to kill her because she had “ruined” his life. She had fought him off, she said, and he disappeared. Investigators took a photograph of a red spot on her neck which could be vaguely seen if the picture was blown up. Campus police reached out to Daniel. This time, he told his lawyer a police officer was trying to contact him. The lawyer interceded and declined the request for an interview.

Campus police who conducted the investigation looked over video footage and license plate readers. Daniel, apparently quite stealth, had escaped detection. The state charged him with Aggravated Kidnapping and Aggravated Assault. Agg Kidnapping carries a minimum mandatory prison term that the trial judge can reduce to no fewer than six years. In other words, the judge would have no discretion to suspend the prison term and put him on probation. If Daniel was convicted of Agg Kidnapping, he would go to prison for a very long time.

While the separately-filed cases were not formally consolidated, the preliminary hearing went forward on both cases together, the alleged sex crimes and the alleged kidnapping/assault charges. No one was interested in requiring Ally to testify at two separate preliminary hearings, and two separate hearings would be much more expensive for Daniel. Ally’s testimony was consistent with the versions reported in probable cause statements accompanying the charging documents. She admitted having misinformed the police officer how she and Daniel had met. She corrected the story, Ally explained, by sending the officer an email with the truth. Daniel was, of course, bound over for trial on four felony counts and, if convicted, would spend somewhere between six years and the rest of his life in prison.

Daniel decided to retain new counsel. I substituted in the case. I have no criticism of prior counsel’s handling the case. Given the seriousness of the charges and the pressure Daniel and his family were under, Daniel and his benefactors felt the need for greater interaction with counsel than they were having. I was happy to oblige. I also charge by the hour.

As I reviewed the file, a number of things jumped off the pages. First was Ally’s answer to police about how she and Daniel met and her email correction in which she reluctantly disclosed “Tinder.” She explained to the officer her fear of not being believed if she told him they’d met on a cite many people—not including Ally of course—believe to be a “hook-up” for sex. The officer reassured her she was a “victim,” her reluctance was completely understandable under the circumstances, and she must not worry herself over this. Her testimony at the preliminary hearing also revealed a number of issues that needed further investigation.

Under state law, a criminal defendant is not entitled to fish in an alleged victim’s medical or mental health history. The long and short of it is the defendant must first seek leave of court to subpoena such records. Court leave must be based on showing a likelihood that the records will bear some relevance to the defense of one or more elements of the crime. If the court grants leave, the subpoenaed person or entity must submit the records to the judge, not to the prosecutor or defense attorney, for what is known as an in camera review. The records remain under seal unless and until the judge concludes they have sufficient evidentiary value to the defense. We filed a motion for leave to subpoena certain of Ally’s records. The judge granted the motion and ordered the prosecution to obtain from Ally and provide to the defense the identities of certain providers so we could issue subpoenas.

The lead prosecutor on the case retired. The reassigned prosecutor was very experienced in sex cases but knew little about this case—which is not uncommon in busy county attorney offices. This would give me the opportunity to share my perspective with him if I chose to, when the time was right, knowing he was unlikely to dig into the case until close to trial. In the meantime we sent the prosecution a number of letters/emails requesting the identity of and contact information for Ally’s providers, as ordered by the court, so we could subpoena her records for in camera review. The prosecution was unresponsive to those requests.

As for the campus assault, Daniel told his lawyer he was relieved upon learning the precise date and time when it was alleged to have occurred. He claimed he could prove he was elsewhere. I’ve had clients with alibis which at first blush sound solid but often fall apart upon further inquiry.

I engaged the services of an extremely capable private investigator whose education and experience in law enforcement exceeds that of most retired police chiefs.

My PI interviewed the university chief of police. We learned a lot about security and surveillance at this campus. The chief was embarrassed by the quality of the investigation his office had performed, including its failure to preserve evidence—the recordings by its cameras and license-plate readers not picking up Daniel or a vehicle licensed to him or someone connected to him.

We issued a subpoena for Daniel’s cell phone records, including any GPS data. We would likely need an expert in cell phone technology, cell towers and GPS.

We issued subpoenas for records from a store and a restaurant, both some distance from the university, where Daniel claimed to have made debit card purchases on the date and around the time of the alleged campus assault. In addition to the invoices and debit card transactions, the subpoenas sought video surveillance with, hopefully, date and time verification.

We issued a subpoena for Daniel’s bank records that were tied to his debit card in order to verify any charges, and their timing, at the store and restaurant on his account.

We subpoenaed his work records for the date and around the time of the alleged assault. Daniel claimed he worked with two special needs siblings and, on the date and around the time of the alleged assault, had picked them up from a parent’s house, taken them to a store to pick up some treats, then checked them into and supervised them at a recreation center. The recreation center was some distance from the university. We issued a subpoenaed for records from that facility, including video surveillance, again hoping for date and time verification.

On somewhat of a lark and based on certain things we inferred from the initial investigative report in the file and her testimony at the preliminary hearing, we issued what are known as GRAMA (Government Records Access Management Act) requests, the state’s equivalent of the Freedom of Information Act (FOIA), to local police agencies. The requests sought any reports that referenced Ally. One city police department responded that it had a police report in which she was named. After negotiating with the police department and agreeing that certain information could be redacted from the records, we received the report.

This latest report revealed Ally had claimed she was sexually assaulted in a vehicle—her vehicle—by a male co-worker whom she gave a ride home from work. That assault occurred, she claimed, in the parking lot of an apartment complex next to yet another university. The investigation, which was “closed,” did not have any statement from or memorandum of interview of the accused. The date of that incident was almost a year to the day after the alleged sexual assault involving Daniel. We sent the PI to interview the person Ally claimed had assaulted her. That person, Jim (not his name), was never charged with any crimes based on this incident, and was never even contacted for an interview by the police department to which Ally had reported the incident. Strange. Ally had, however, reported the assault to her employer, saying she could not work in any locale where she might encounter Jim. The employer conducted an internal investigation, gathered text messages, took statements and issued an internal report. We subpoenaed the report and all supporting documents.

Jim gave his employer, and my PI, a much different version of what had occurred and who was the aggressor. Jim explained that shortly after leaving the parking lot and going into his apartment he began receiving text messages from Ally’s mother and a boyfriend. They accused Jim of having sexually assaulted Ally. Jim would have none of that. He called them and, according to him, set the record straight. He also suggested to them and his employer that video cameras surveilled the parking area. He encouraged them to obtain the footage which was sure to show what had occurred, who was the aggressor and who had climbed over the console and straddled whom while he was seated in the front passenger seat. Other than the employer’s internal investigation, Jim heard nothing more about it until we reached out to him. Jim was willing to testify.

I have developed a few strong contacts and relationships in the local prosecution Bar. That’s one benefit of having practiced law for many years in a relatively small legal community. One’s word and credibility matter a lot more than smarts or skill. One question I constantly struggle with is how much information I should share with a prosecutor in any given case. One key to answering the question is whether I am confident I can trust this prosecutor, not simply to try to figure a way around the information I provide but rather, to evaluate the case anew in light of the information I disclose. Will the discussion be “good faith”?

People who think they can explain their way out of something, which is human nature and rely on the notion “the truth will set me free” don’t understand how most investigators and prosecutors are trained to think. The person also may not understand the need not to give up information without receiving something in exchange. Cops often presume guilt. If any given fact can be interpreted as either innocent or nefarious, cops usually choose nefarious. Police are invested in their investigations and the resulting prosecutions. Prosecutors work with investigators, are loyal to them and rely on them. It’s not like, “oh, thank you for sharing the weaknesses in our case. Never mind.” Yet, prosecutors are the ones who have to put on the case before a judge and jury. I want to be as certain as possible that this prosecutor on this case will engage in a good faith dialogue to get to the truth. If not, let a jury decide. That process, however, is extremely stressful, time consuming and expensive for the client. Litigation shortens people’s lives. So, can the case be resolved short of trial, hopefully dismissed, through candid discussion and disclosure? Prosecutors are human too. They are busy and don’t like being embarrassed. Frankly, prosecutors have told me s/he would have dismissed the charges had I just shared the weaknesses in the case before trial. Prosecutors have also thanked me for being willing to share information so they were not embarrassed by taking the case to trial.

Daniel’s case was prosecuted by an office with which I believed I had a good relationship. I discussed with Daniel and his father what I thought were the possible benefits and risks of approaching the prosecutor with what we had learned. If we abandoned that avenue, the rules nonetheless required us to disclose some of what we now knew before trial, including the alibi defense, defense experts and certain information the experts would address at trial. The prosecution would catch on sooner or later. Daniel asked that we try to talk the prosecution out of the case. I reached out to a contact at that office, someone I consider a friend, met him for lunch (he paid for his, I for mine), discussed the possibility of my speaking to the line prosecutor and inquired concerning whether he thought we could have a candid “good faith” discussion about the charges. He assured me we could.

My PI and I met with two prosecutors. We focused primarily on the campus assault. There are a number of details I am not sharing here. We presented the following:

• In her social media postings Ally reported having been sexually assaulted. Raped. Responses expressed considerable sympathy, support and encouragement. Thoughts and prayers. We believed this was consistent with certain other things we had learned in the case about her pathology.

• The university’s extensive surveillance system had failed to verify that Daniel or a vehicle tied to him was on campus on the date of the alleged assault—at any time that day. And, of course, that surveillance evidence had not been preserved.

• On the date and at the time Daniel was alleged to have been on university property, his telephone was with him. The GPS (Google Maps) was “on.” We shared interactive maps from the provider showing precisely where that phone had traveled for the hours before, the hours after and throughout the time he was accused of having been on campus and assaulting Ally.

• The GPS showed the telephone was never closer than about ten miles from that campus on the date of the alleged assault.

• His employment records, handwritten by him, showed he was at work that afternoon into the evening. His hours began before and ended after the alleged assault took place. The records reported he had been with two clients.

• After he picked up the clients, according to Daniel, he took them to a store where he used his debit card to purchases certain items the boys wanted. The employment records showed a reimbursement request for the monies spent on the boys. The debit card receipt from the store precisely matched his bank records in every respect. That store was some 14 miles from campus. The store did not keep video surveillance beyond 90 days, so we were out of luck there.

• According to Daniel, he checked the boys into a recreation center where he supervised them until well after the alleged assault concluded. The electronic records from the recreation center established the precise moment in time those boys went through the entrance, which was a few minutes before the time the alleged assault occurred. The rec center was about 15 miles from campus. Again, no video surveillance was preserved.

• According to Daniel, he dropped the boys at a parent’s house and went to a popular burger joint. He bought dinner using his debit card. Daniel actually kept the receipt from that purchase but we verified it with records from the restaurant that matched the bank records. No video. The burger place was about 18 miles from campus.

• Best of all, the interactive GPS showed exactly where Daniel’s cell phone was which, unsurprisingly, precisely matched the times and locations where he said he picked up his clients, took them to a store, took them to a rec center, took them home, went to a burger joint and then went home.

• We shared Jim’s story along with the redacted police report.

• We shared Jim’s employer’s internal investigation.

• We answered all questions.

• We shared other details.

• We held nothing back.

• We had nothing to hide.

For reasons I understand, the prosecutors took the information we provided and tasked their own investigator to retrace our steps. Trust but verify, especially if they were considering a prosecution for perjury or filing a false police report. We made our PI available to him.

We, of course, were not present when prosecutors confronted Ally with the results of their investigation which confirmed the result of our investigation. All we know is the prosecution filed a motion to dismiss all charges “in the interests of justice,” the case was dismissed, and to our knowledge Ally has not been charged with filing a false police report or with perjury for the testimony she gave during the preliminary hearing. With Daniel, the prosecutors did the right thing. Not sure with Ally.

Someone might contend the question remains, what happened in the backseat of Daniel’s car. She said/he said. Right? That was most likely a triable case but for the subsequent report that Daniel had assaulted her on campus during a time we could prove his cell phone had made its way to various locations that matched debit card purchases, employment records and check-ins at a recreation center. If you were the prosecutor, would you take the sex assault case to trial knowing how her cross-examination would go with dismissed charges of Aggravated Kidnapping and Aggravated Assault, and Jim’s testimony of course?

Most likely, no one feels much sympathy for Daniel. I do.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.

ravchief

Natural US Citizen. Caucasian. Shamed into blogging by DSM-V Cluster B 9/9-led regime, Utah's most embarrassing congressperson, and Newton's Third Law of Motion. The views expressed are mine.

USA, Utah, Salt Lake City

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