It's a Sad Day When an Innocent Man Is Illegally Convicted

E-mail     By Jay B. Van Story, November 28, 2002    Bio /Address

Throughout the U.S. in the 1980s and early 1990s, allegations of child sexual abuse almost always resulted in convictions. The mantra was "believe the children." There was a rush to judgment. I have been falsely imprisoned on such a charge since 1987. I have a life sentence. However, the alleged victim in my case, A.C., has now voluntarily come forward to insist that she was coerced by investigators and prosecutors into going along with their false suggestions that I had sexually abused her. There is an abundance of solid proof that backs her up. Extensive scientific research has provided strong and convincing evidence that children's allegations of abuse can be molded by suggestions made by biased interviewers.1 The Massachusetts Supreme Court found that such research into child suggestibility constitutes newly discovered evidence of innocence and displays serious flaws in the techniques used to interview children in many cases including the Cheryl Amirault LaFave case.2 Similar rulings have been made in other cases.3,4,7The lead investigator in the famous Wenatchee, Washington cases4, Robert Perez, was found to have used highly improper interviewing techniques. Roger Bowers, the lead investigator in my case, used equally improper techniques. Both Bowers and Perez told outrageous, inflammatory lies, made threats, and forced children and adults to go along with false theories. They refused to preserve their notes or make recordings. During a March 1987 interrogation, A.C.'s brother W.C. so desperately wanted Bowers to stop trying to coerce him, W.C. threatened to kill him. On April 3, 1987, Bowers again interrogated W.C. against his will. W.C. turned his chair away from Bowers and refused to face him. He continued to adamantly deny Bowers' repeated false suggestions that I had abused him and A.C. A.C. did not want to talk to Bowers, either. According to Bowers, when he interrogated her April 3-4, 1987, A.C. was not spontaneous, she did not just "talk and talk," he had to "ask questions to get answers," and he had to "help her out." He admitted he had "some concerns" about some of her answers "because of her attitude." It was in this coercive atmosphere that the allegations that I abused A.C. were generated. After A.C. later revealed at my trial that Bowers had made up the allegations, Bowers totally contradicted and perjured himself by testifying that A.C. had been very spontaneous, forthcoming, eager to talk to him, and consistent when he interrogated her. Bowers' coworker, Donna Longanecker, wrote in her April 3, 1987 report that Bowers told A.C. I should not be touching her and that something would have to be done to keep me away from her before she could go home. This gave A.C. the unmistakable message that she would have to parrot Bowers' falsity if she wanted to go home. Curiously, Bowers left this out of his report. No one had called in a report or a suspicion that I had abused A.C. The allegations were the sole product of Bowers' improper interrogations. Bowers employed multiple suggestive techniques. When just one suggestive technique is used, false reports are likely to be generated. When there are several or more, as in this case, false reports are virtually guaranteed.5 Bowers and others had A.C. pretend with anatomically correct dolls that I had raped her and also penetrated her with fingers and a spoon. Studies have shown that children often play with these dolls in such a fashion even when they haven't been abused in such ways. Allegations produced this way have been found to be just as likely false as true.6 Indeed, these allegations were recanted by A.C. as soon as she could get away from Bowers, and a medical examination disproved them. A new allegation was subsequently invented to fit the complete lack of evidence, after even more pretending with dolls, and even more improper interrogations. It was thus even more likely to be false than the previous allegations.5 Yet, it was the allegation used to secure my conviction. The new allegation was that I had forced A.C. to completely disrobe and then climbed on top of her totally nude, in a small house, with her entire family present, in the middle of the day, on March 3, 1987. From the beginning, it was clearly false. Her entire family even repeatedly insisted it was a lie. However, that didn't stop Bowers. My case is similar in some respects to the famous case of Frank Fuster in Florida, who was also obviously falsely convicted.7 Like Fuster, I had a prior conviction that made it easy for a corrupt investigator like Bowers to go after me. However, my prior conviction was not for sexual assault or molestation. It was for making a videotape of a nude child when I was very young and naive. I regret it and it was wrong. However, it did not give Bowers a license to propagate his highly inflammatory, false statements that I had been convicted of sexually assaulting numerous children. It did not give him the right to coerce A.C. into falsely accusing me. Once Bowers succeeded in prompting A.C. to go along with his lies against me, suspicion of other alleged offenses was created against me. However, now that A.C.'s allegations have been convincingly shown to be untrue, that suspicion has been negated. Bowers' efforts to compel A.C.'s mother, D.C., to join his malicious scheme against me were especially heavy-handed. During his frequent visits with D.C. at her home and by telephone throughout March and April 1-3, 1987, he repeatedly threatened to take away her children for her continued failure to adopt his lies against me. Finally, he made good on his threats on April 3, 1987 "to get her attention," as he put it. Then Bowers proceeded to step-up his coaching of D.C. He repeatedly spoon-fed her every detail of the allegations and told her she would not get A.C. back if she didn't start cooperating. This continued for 11 days. When this failed to get the desired result, Bowers resorted to showing D.C. an April 6, 1987 videotaped interrogation of A.C. in which she was prompted to pretend with dolls that I had violently raped her. Right after viewing that videotape on April 14, 1987, D.C. finally gave Bowers the manufactured corroboration he had repeatedly and so forcefully demanded. Bowers neglected to tell D.C. about the exonerating medical examination and recantations. The court appointed attorney at my 1987 trial stated on the record he was not prepared for trial. I then requested my right to self-representation. The judge unconstitutionally denied my request. Consequently, the Court of Appeals granted a new trial. I was granted permission to represent myself at my retrial. A.C. tearfully testified on August 22, 1989 that the allegations that I had sexually abused her were Bowers' and others' lies. She maintained this even under redirect examination by prosecutor Rebecca Atchley, listed in part below:

 

Atchley: "Did you understand all of Jay's questions?"

A.C: "Yes."

Atchley: "Has Jay [sexually abused] you?"

A.C.: "No."

Atchley: "Okay. You made that up?"

A.C.: "Yes."

Atchley: "Why did you make that up?"

A.C.: "Because I was scared."

Atchley: "What are you scared of?"

A.C.: "I might get taken away from my mom.

Atchley: "[Bowers] never told you to say anything bad about Jay, did he?"

A.C.: "Yes."

Atchley: "What did he tell you to say?"

A.C.: "Don't tell Tell that Jay did that to you."Atchley: "Tell the jury what you're afraid of about Jay."

A.C.: "That he would get hurt."
Atchley: "Did he do something to you that you didn't like?"

A.C.: "No."

 

A.C. expressed genuine relief. She sobbed openly. She testified she had been waiting a long time to get the chance to tell the truth. She expressed deep sadness and regret about having been coerced into falsely accusing me. But then, the next day in court, A.C. went back to alleging that I had lain nude on top of her. Now, the bombshell A.C. now very strenuously and emotionally insists that the prosecutors forced her, against her will, to go BACK to falsely alleging that I had abused her. This is not so surprising. Research shows that children give inaccurate testimony far more often than previously imagined, especially when investigators and prosecutors8 have coached them. Furthermore, when A.C. went back to falsely testifying that I had abused her, she made it obvious she had been coached into doing so. For one thing, she tried too hard to lie. She claimed she had never told a lie her entire life. She claimed she had never talked to anyone at any time about the alleged abuse. She claimed she had not talked to the prosecutors after she left the courtroom the previous day. However, prosecutor Rebecca Atchley made it clear that she had. A.C. spoke in a monotone voice and sat ramrod straight in her chair. Her mannerisms and body language betrayed her. Most conspicuously of all, A.C. looked nervously at the prosecutors before and after answering questions, obviously seeking cues and approval of her answers. When asked why she was looking at them, she seemed afraid and would not say why. Former Lubbock County D.A. Travis Ware was in the courtroom for the first time. It was Travis Ware who A.C. looked at the most. Now we know why. Exculpatory evidence abounds in this case. When A.C.'s oldest brother, R.B., testified on August 24, 1989, he fully recanted. He admitted that he had fabricated his entire June 15, 1987 sworn eyewitness statement to try and increase his mother's chances of regaining custody of A.C. He admitted his original, spontaneous statements that I had not abused A.C. were true. A.C.'s step grandmother, A.C.'s two youngest brothers, and A.C.'s sister have maintained their original, spontaneous statements that I did not abuse A.C. There are a huge number of major, fatal contradictions in the allegations that I abused A.C. that prove they are the product of design and deliberation, and not any real event. The federal magistrate in Lubbock ruled in 1988 in a $225,000 civil rights judgment for false imprisonment that D.C. had been coerced by Bowers and his coworkers into providing her "minor piece of false evidence" (her "outcry" statement) and that she had been "an unwilling participant" in the scheme to wrongly deprive me of my liberty. Travis Ware and his first assistant, Rebecca Atchley, were quite likely the most corrupt prosecutors in U.S. history. A federal injunction was issued against them in 1993 under the RICO Act (Racketeering Influenced and Corrupt Organizations). They were found to have conspired to maliciously prosecute numerous individuals and to have procured perjury in numerous cases.9 The RICO Act was enacted in 1970 to prosecute mob bosses. This was the first time it had been used against state prosecutors. Ware and Atchley spent more time committing crimes than prosecuting them. In October 1992, forensic pathologist Jody Nielsen and investigator Carrie McClain resigned from Ware's office. McClain publicly cited an "erosion of ethics" and "a lack of integrity and honesty" in his office.10 On March 13, 2002, the Texas Court of Criminal Appeals unanimously reversed the capital murder conviction of Damon Richardson due to Ware's prosecutorial misconduct.11 This is a very conservative court that very rarely reverses convictions, especially unanimously. But Ware's misconduct was very brazen and shocking. The court found that he had hid evidence that six police officers believed his star witness was committing perjury. A second witness in the Richardson case was found to have provided false testimony at Ware's urging. Ware was found to have deliberately lied to the court himself.12 Furthermore, it was discovered that Ware and Atchley solicited false testimony and false evidence from forensic pathologist Dr. Ralph Erdmann, not only in the Richardson case, but in many others.10,13 Erdmann was convicted of numerous felonies surrounding such fraud. Monroe Freedman, a nationally recognized ethics scholar, said about Ware's misconduct in the Richardson case: "It is outrageous when any lawyer does something like this. It is even worse when it's a public official abusing the rights of another citizen. ... This kind of corruption is so infuriating. ... I'm deeply concerned."12
Ware frequently touted the Richardson conviction as his crowning achievement. It was tried in October 1988, only 10 months before my retrial. Part of the reason Ware and Atchley were willing to do anything to have me falsely convicted was because if the truth had prevailed at my retrial, the lid would have been blown off of their huge conspiracy. A March 7, 1993 Lubbock newspaper editorial stated, in part: "[Ware] should resign so that shadows of skepticism about the criminal justice system begin to recede. For some time we have had reservations about Mr. Ware's apparent willingness to target people who would differ with him. Probably few of those who would have objected most strenuously to the way Mr. Ware was handling himself could have predicted with confidence that he would be slapped down so emphatically by a federal judge."14 Ware refused to resign. However, he was soundly defeated in the next election in 1994. Ware and Atchley knew from the outset they had a fraudulent case against me. They offered me "time served" before the 1989 retrial. Furthermore, they failed to call the alleged eyewitness (R.B.) and the alleged "outcry" witness (D.C.) at the retrial. They knew by then that R.B.s and D.C.s testimonies were just as false as A.C.'s.The system failed me, and it failed A.C., at every turn. There are a number of reforms that need to be instituted - three in particular:
  1. ALL interviews with alleged victims, witnesses and suspects must be videotaped, especially when the alleged victim is a child.15 That way, investigators and prosecutors will be much less likely to engage in misconduct in the first place, and when they do, it can be more easily detected.
  2. Prosecutors must be held fully liable for malicious misconduct. As it is, they know they can do just about anything they want to get a conviction, with impunity.
  3. More must be done to ensure that defendants receive truly effective representation. Contrary to popular belief, you must prove your innocence. You can't do it without a vigorous defense.
Bowers, Ware and Atchley exploited and abused A.C. for career and political gain. They filled her impressionable mind with horrible images. They put her through the worst kind of emotional and psychological torture and trauma a child could be put through. They robbed her of her childhood. They effectively kidnapped her and held her for ransom. The ransom was her and her mother's cooperation in the malicious scheme to falsely convict me. When I was asked by the judge at the retrial if I had anything to say after being convicted, I stated simply: "It's a sad day when an innocent man is illegally convicted." I hope that the progress made in my case will encourage others who are falsely imprisoned to keep fighting for justice. I hope alleged victims in other cases across the U.S. who were coached into falsely testifying will be inspired by A.C.'s courage and determination to come forward. There are people who care and will provide the opportunity to set the record straight. A.C. voluntarily provided the Innocence Project at the University of Houston with a detailed affidavit in November 2001. They found an attorney to protect her and are seeking my pardon. I would be glad to hear from anyone who would like to write to me. I offer assistance, advice, referrals, and support. I seek the same. Please write. Thank you.

 

Jay B. Van Story TDCJ #477649

Wynne Unit, 3 - Dorm 42

Huntsville, TX 77349

 

FOOTNOTES:

  1. "Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony," American Psychological Association, Washington D.C. (1995), Dr. Stephen J. Ceci and Dr. Maggie Bruck.

  2. Commonwealth v. Cheryl Amirault LaFave, Mass. Superior Court, June 12, 1998, action nos. 85-63, et. al; affidavit by Dr. Maggie Bruck in the Cheryl Amirault case, October 14, 1997; 48 Hours segment on the Amirault case, CBS network, August 8, 2002.

  3. Calif, v. Scott Kniffen and Brenda Kniffen, Cal. Ct. of App. 5th Dist. #FD04423 (1995]; "Just Ask My Children," Lifetime network movie about the Kniffen case, Sept. 10, 2001.

  4. State of Washington V. Carol M. Doggett Cons With v. State of Washington V. Mark A. Doggett, Docket #15014-3-111, Ct. of App. Div. III, State of Wash., Opinion Info. Sheet, 12/09/97; "Witch Hunt: A True Story of Social Hysteria & Abused Justice," K. Lyon, Avon Books, 1998.

  5. Bruck, M.,Ceci, S.J. 5 Hembrooke, H. (In press), Children's Reports of Pleasant and Unpleasant Events, in D. Read and S. Lindsay Ceds.3, Recollections of Trauma: Scientific Research and Clinical Practice, New York, Plenum Press.

  6. Bruck, M., Ceci, S.J., Francoeur, E., S Renick, A. (1995), Anatomically Detailed Dolls Do Not Facilitate Preschoolers' Reports of a Pediatric Examination Involving Genital Touch, Journal of Experimental Psychology, Applied, 1, 95-109; Bruck, M., Ceci, S.J., 5 Francoeur, E. (1995), Anatomically Detailed Dolls Do Not Facilitate Preschoolers' Reports of Touching, Paper presented at Society for Research on Child Development, Indianapolis, Indiana, March 1995.

  7. "Did Daddy DO It?", PBS Frontline segment on the Frank Fuster case, April 25, 2002 (pbs.org).

  8. "Why Children Lie In Court," Jerome Cramer, Time magazine, March 4, 1991, p. 76.

  9. "Lawyer, Lubbock Officers Seek to Halt Prosecution," Lee Hancock, Dallas Morning News, Feb. 3, 1993; "Lawsuit Targets Ware, Erdmann," Grady Simmons, Lubbock Avalance Journal, Feb. 3, 1993; "Doubts Cast on Ware's Claims," Lubbock Avalanche-Journal claj), Feb. 17, 1993; "Statement Says Ware Made Threats," (LAJ), Feb. 17, 1993; "Witness Impugns Atchley's Motives," LAJ, Feb. 19, 1993; "Lubbock Police Sergeant Rebuts Assistant D.A.'s [Atchley's] Testimony," LAJ, Feb. 25, 1993; "Hubbard, Farmer, Kelly Prevail," LAJ, Mar. 5, 1993; "Plaintiffs Elated By Decision," LAJ, Mar. 5, 1993; "Ware Erdmann Critics Laud Ruling," LAJ, Mar. 5, 1993; "Demonstrators at County Courthouse Call For Ware's Resignation," LAJ, Mar. 6, 1993; "$300,000 Settlement to End Suit," LAJ, Apr. 20, 1993.

  10. "Attorney Mulls Petition to Have Ware Removed," Grady Simmons and Joe Gulick, LAJ, Oct. 28, 1992.

  11. "Court Overturns 1987 Conviction in Triple Slayings," Deon Daugherty, Morris News Service, Lubbock Avalanche-Journal (LAJ), Mar. 14, 2002, p.1

  12. "Lubbock D.A.'s Deal to Cut Term For Felon Questioned," Lee Hancock, Dallas Morning News, Nov. 29, 1992; "Man Says He Was Told to Testify Falsely," Dallas Morning News, Jan. 8, 1993; "Buss Gives Account of Actions in 1988," Grady Simmons, Lubbock Avalanche-Journal (LAJ), Jan. 9, 1993.

  13. 60 Minutes segment on Ware, Erdmann controversy, CBS network, Dec. 13, 1992.

  14. "For Good of Lubbock, Mr. Ware, Step Down," Lubbock Avalanche-Journal (LAJ), Mar. 7, 1993.

  15. "Why Judges Must Insist on Electronically Preserved Recordings of Child Interviews," Stephen J. Ceci and Maggie Bruck, Court Review, Spring 2000, pp. 8-10.

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