Anatomy of a Conviction

In a teacher's child-sex case, legal and child psychology experts question what the prosecution did and the defense didn't. The next call is the judge's.

L.L. Brasier, John Wisely and Suzette Hackney, Free Press Staff Writers

Free Press, December 22, 2006

As an Oakland County judge ponders the fate of a kindergarten teacher found guilty of molesting two boys, legal experts and child behavior specialists say the case raises serious questions about the process that led to his conviction.

The debate over what happened or didn't happen in Classroom 101 at Key Elementary in Oak Park has only intensified since a jury convicted James Perry in September of snatching two boys -- ages 4 and 5 -- from a lunch line, dragging them into the classroom and forcing them to perform oral sex. Oakland County Circuit Judge Denise Langford Morris is considering a request to grant Perry, 32, a new trial or toss out his conviction since new witnesses recently came forward.

Experts interviewed by the Free Press cited several concerns. Among them:

	The case rested primarily on the children's accounts, which were not consistent during the investigation and trial. Prosecutors contended that children seldom lie about sexual assaults, but several leading experts on child behavior said extensive research in the last two decades has shown that small children can easily be led to fabricate stories, even unintentionally. Perry's defense lawyer did not call any experts to tell that to jurors.
	A legal expert said the boys' mothers may have testified beyond the limits of what the law allows as they recounted what their children told them. That kind of testimony is known as hearsay evidence and has limits on what jurors may hear.
	A former FBI profiler who specializes in child-sex cases said Perry doesn't match the profile of a pedophile who snatches and assaults children he doesn't know. No experts testified at Perry's trial about the characteristics of sexual predators.

It is impossible to know whether such evidence would have changed the jury's verdict. Prosecutors and police stand by the conviction, saying the boys' core testimony about being forced to perform oral sex on the teacher was consistent and found credible by the 12 jurors.

"This guy's a freak," Oakland County Prosecutor David Gorcyca said in a November interview with a Free Press editor, noting that Perry had a collection of photographs of children and youth-oriented videos. The photos and videos were never introduced at trial, and Perry contends they were innocent.

The Perry case has been marked by unusual turns from the outset

Prosecutors initially declined to charge him in October 2005, citing lack of evidence, before reopening the case more than three months later. Then last month, two months after Perry's conviction, the trial judge took the unusual step of delaying sentencing to reconsider the jury's verdict after witnesses at the school -- never
interviewed by police -- disputed the prosecutors' account.

The judge is considering defense motions claiming Perry, who is jailed in Oakland County, was denied a fair trial because his original attorney, Ray Correll, performed poorly and because the attorney allowed him to wear an electronic tether visible to jurors. The device might have implied guilt to jurors, Perry's appellate
lawyers say.

Langford Morris is expected to rule in January. Perry faces up to life in prison.

Children's testimony

Perry's march through the legal system began with the events of Oct. 12, 2005. Two hours after arriving for his first day of school, a 5-year-old would insist that Perry pulled him from a supervised lunch line and forced him to perform oral sex in a vacant room. Later the child alleged a 4-year-old was assaulted as well.

The 4-year-old initially denied being attacked. Over the next several months, during the investigation and at trial, the children's statements proved inconsistent on several issues, including whether they were together or alone when they said they were attacked.

The seven-day trial was built almost entirely around the testimony of the children and their mothers. Experts in child sex-abuse cases say this is common because the assaults are "crimes of privacy," and corroborating evidence is often difficult to establish unless there
are signs of physical trauma, which were not present in this case.

Dr. Melvin Guyer, a legal expert and professor in the University of Michigan's department of psychiatry, said that although child witnesses are often truthful, their testimony must be handled with care, particularly when there is evidence that parents or other adults may have repeatedly interrogated the children.

"The allegations here are as bizarre as those in the 1980s day-care cases," he said, referring to prosecutions of preschool workers -- most notably at the McMartin Preschool in California -- that were discredited when it was found that repetitive, leading questions may have caused the children to invent accounts. Young witnesses are not inherently untrustworthy. Researchers have found that children as young as 3 can accurately recount experiences.

But Guyer said even graphic sexual descriptions by children don't guarantee that an attack occurred. Studies indicate that children, especially those younger than 6, can embrace false scenarios under repeated, leading questioning, he said.

One study by Central Michigan University, published in 2001 and involving 114 children, found that up to 40% of children under age 8 will add false details, including about unpleasant physical contact, to recollections if they're coached or questioned repeatedly.

The hearsay exception

Because there is often little to corroborate a child's account in criminal cases, prosecutors often seek testimony from the parents or other adults in whom a child confided. Courts usually restrict hearsay testimony, which includes secondhand accounts, but often make an exception in cases involving young witnesses, who may have limited memories or find it difficult to describe their abuse in court.

But this exception is limited: In Michigan, the child must be under 10 and his or her statements to the adult must have been made spontaneously and, in most cases, shortly after the reported incident.

"That's because after a while, it loses its trustworthiness," said Lawrence Dubin, a professor at the University of Detroit Mercy Law School and an expert on rules of evidence.

At Perry's trial, both mothers testified not only to what their children said in the immediate aftermath of the alleged assaults, but also about what the boys said weeks and months later. Both acknowledged repeatedly questioning the boys at length, including on one occasion questioning them together months after the allegations were made.

Experts say children's memories can be easily contaminated under continual questioning.

"After that, it becomes a lot harder to tell what's false and what's not," said Dr. Kamala London, a professor and researcher of children's testimony at the University of Toledo, who has served as an expert witness in numerous trials.

"Kids, especially young ones, come to believe the event took place, and will even begin to supply details."

Gorcyca remains steadfast that the boys' accounts were believable, as the verdict reflected.

The rape shield law

Yale Kamisar, a law professor at the University of Michigan whose books are staples in law schools nationally, said another key trial issue was how the rape shield law was used.

The law was created so rape victims would not have to fear having their sex lives gratuitously used against them in court, Kamisar said.

At Perry's trial, the law may have been misapplied, Kamisar said, when the jury was prevented from hearing testimony about whether the 5-year-old boy had been exposed to sexual contact previously.

The judge ruled that jurors could not see a portion of a transcript in which the child told sexual-abuse counselors -- who interviewed him on behalf of police -- that he was previously molested by a "kid named Naz."

Jurors also never learned that the boy's mother had reportedly confided to a teacher that she was angry after hearing her son say he was "tea-bagged." The word is slang for forced oral sex. The teacher, Lynn Duncan, said the mother also suggested that something similar happened to the boy while they lived in Chicago.

The mother declined to comment on the boy's past.

Kamisar said of the shield law's use in the Perry case:

"I don't think those who drafted this law could have begun to contemplate it being used any way like this. Technically ... this law may apply. But the people who drafted this never had anything this oddball in mind."

Lawyers who specialize in sexual assault cases said it is important to call experts who can explain the limitations of children's testimony, which didn't happen in Perry's case.

"These are very difficult cases to try," said Southfield attorney Gail Benson, whose practice centers on defending sexual assault suspects. "You really need a specialist."

Perry's trial lawyer, Correll, disagreed.

A profiler's view

Kenneth Lanning, a retired FBI behavioral analyst who spent much of his 33-year career at the bureau studying people who prey on children, said pedophiles generally fall into categories, and those who turn to teaching, coaching or other activities that bring them close to children usually befriend victims over time to gain their
trust.

In this case, the 5-year-old boy was attending his first class at Key Elementary. He and the 4-year-old had never been in Perry's class.

While acknowledging there are exceptions, Lanning, who is not involved in the Perry case, said the idea that a veteran teacher would suddenly abduct two boys he didn't know was inconsistent with how most pedophiles operate.

"Generally, people who go into teaching, or coaching, or scouting because they are looking for their victims there will groom the children for a period of time, and develop a relationship," he said, adding: "It seems here they are saying a 'groomer' suddenly became a 'snatcher.'

That's not consistent with the patterns we know. It appears that what you have being put forth in this case is the urban legend of what people think of when it comes to child molesters: some creepy guy leaping out of a dark corner."

Lanning said he was troubled that some witnesses -- such as teachers in or near the room where the boys said they were attacked -- were not questioned by police before trial.

Oak Park Public Safety Director John McNeilance said his department was at a disadvantage because prosecutors initially declined to pursue the case and it remained closed for four months before
Gorcyca's office charged Perry.

"We lost the momentum in the investigation," McNeilance said. He conceded, however, that detectives should have interviewed witnesses assigned to the special-education room where prosecutors said the attacks took place, "well before the trial."

Some of those school employees have told the Free Press, and Perry's new defense team, that the room was occupied throughout the school day and the assaults could not have happened as described.

Erik Dolan, the detective in charge, relied on a statement by the school principal that special-ed children were assigned a different room for lunch, meaning the room could have been empty. Dolan has
since sought to interview the new witnesses.

Correll wept when the verdict was announced Sept. 20 after the jury deliberated five hours.

"I was devastated," he said. "The facts in this case are incontrovertible -- two small children say they are pulled from a supervised lunch line, taken into a room that happens to be full of people, and sexually assaulted, all in eight minutes. It couldn't have happened."

Gorcyca, who has criticized Free Press coverage of the case and refused to talk to reporters in recent weeks, said in October:

"Somebody is trying to escape responsibility for poor performance in his own work. It's not our job to do his defense."