Case Highlight: Falsely Accused, Fully Exonerated. Our client faced child sexual abuse charges based on a false accusation. He cooperated fully with law enforcement, submitting to interviews, searches, and DNA testing. The child’s statements were inconsistent and included that she might have imagined events. Forensic DNA showed multiple contributors unrelated to him, and professional examinations found no signs of abuse. After reviewing all evidence, the jury returned a not guilty verdict, protecting him from a life-altering conviction.

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Thank you, Your Honor. I apologize. I can't stand podiums, so I'm just going to scoot it back a little bit. Before I even get into my remarks, I did want to at take a moment to thank you for being here. From my perspective, the right to a jury is sacred in this country. The founders thought it was so important they put it in the founding document of the country. So it is something that's truly unique, and exceptional about our country. And it's nice to have words on a piece of parchment, but they don't mean anything unless good and responsible people from the community put meaning behind them. And none of this would have been possible without you answering the call. And so I want to give you my thanks, and I know [the defendant] gives you his genuine thanks because, as you've heard, all of us have been waiting a long time for this day.

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Now, the prosecution, right from opening statements and again just now in essence made you a promise, a promise that they would present evidence that was so overwhelming, so compelling, so consistent, so clear, so clean that at the end of this you would be left in a state of near certainty as to what occurred. And we are at the stage now where all of their evidence has come and it has gone, and it has failed. And it's failed for a number of reasons. But before I even get into that, I did want to share a concern that I have. And it's a concern that I raised in jury selection, and it's a concern I've had since the very beginning of this case, and that is the very nature of the allegation itself. As we have discussed during jury selection, I would hope -- I know that every single person here can agree child abuse is disgusting. The words child sexual abuse conjure up strong emotions in all of us. It is a horrible thing to take away a child's innocence. All of us can agree. My concern has been that when you hear those words, child sexual abuse, it has the potential to shut down people's rational decision-making process. I don't know if you had the feeling when you heard that's what sort of case that was going to be before you. To me, when I hear those words, it's almost like getting punched in the gut. There is no more powerful word in the English language than pedophilia. But you can't do that. We cannot shut down our rational decision-making process. We cannot shut down our responsibility to look at the facts and the evidence. You can't do that at the expense of justice. And you can't do that at the expense of [the defendant] because all it took was somebody pointing the finger of accusation and saying, You did something, without any evidence to corroborate and support it. Every single one of us should be terrified if that's all that's standing between us and the jail cell. So the focus in this case should be on the facts, not trying to look at somebody and mind read, to fortune-tell. None of us were there. I wasn't there. [The prosecutor] wasn't there. None of you were there, so we have to look at the facts. That's where the focus must be.

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And when you look at the facts step by step, none of them support the story. And I want to make it very clear. [The complaining witness] does appear to be a very sweet, very innocent girl. This is not the sort of case where I get before a jury and say this is a malicious witness, somebody who has a bias and a motive and all of those sorts of things. But that is precisely what makes her the most dangerous kind of witness, is her innocence because she's somebody who can be so easily confused and easily misled and it's why it is absolutely crucial that an investigation be done in the appropriate manner. So let's talk about this case and the facts step by step, and I'll start with when the accusation was made. You heard that [the defendant] appeared at [the complaining witness's] high school to pick her up and he was told, You can't get her. Call your son. He'll tell you what's going on. [The defendant] talked to his son, was told that the police wanted to talk to him. What actions did he take? He immediately went down to the police department. He's read his Miranda rights. He's told, You're not required to make any statement. He waives that. He gives an extensive statement, answers all of their questions.

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You heard from [the police officer] he was polite. He was cooperative. He adamantly denied the allegations. [Former Detective] had tried to characterize it, Well, he was cooperative mostly. But when I asked him directly, In what way was he ever uncooperative with you, he didn't have an answer. He even volunteered humiliatingly to allow them to take a photograph of his genitals if that would assist their investigation. Without a search warrant, the same day he allows the police to go to the beach house. Puts no restrictions on it. Take whatever you need. It is a fact that those are not the actions of a man with a guilty conscience. He behaved precisely as any innocent man would.

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Fact Number 2. There is absolutely no evidence, not one tiny shred, not one iota of evidence recovered from that house that is consistent with a sexual abuser. This is the thing about pedophiles. They have a mental disease. They cannot help themselves. They are sick people. And as a result of that, they cannot help but leave traces, images on computers, photographs, things of that nature. There has been zero evidence that there is one single suspicious item. Nothing in that beach house. And it is not as though he would have had the opportunity to dispose of those items. He was cooperative from the very moment something was said.

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Fact Number 3. There is absolutely nothing in this man's biography that would suggest he would commit this sort of heinous crime. You've heard that he was sixty-three years old when this occurred, when this allegation was made. He was in the Navy. He served on nuclear submarines, had raised a family, supported a family, six children, three girls and three boys, eleven grandchildren. And you heard they had come to [small town] because his career as an engineer was winding up. He had been laid off. And so he had come to [small town] because he wanted to help his son [the defendant's son] and to help him where he could with his businesses. And you heard that in the course of that, he had volunteered to act as a caretaker for his step-granddaughter. And the prosecution's theory of this case necessarily requires you to find that out of the blue that this man, after an entire lifetime of good and decent and honest work and raising a family, turned into a monster inexplicably overnight. That makes absolutely no sense.

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Fact Number 4. The timing of these allegations, which cannot be ignored. And they were not addressed at all by the government in this case. You heard that the day before the allegations are made [the defendant] tells [the complaining witness], I'm going to be renting the beach house. I'm not going to be spending as much time here. I'm not going to be able to be your regular caretaker as I have been over the past five or six months. You heard [the complaining witness] agree, [the defendant] agree, her mother [the mother] agree that they had grown close. [The defendant] was with her roughly three days a week helping her with her schoolwork. She loved going to the movies with him. Autistic people, they like stability. They do not like change. And you heard that this upset her, and she acknowledged that it upset her. And I would submit to you it is not a coincidence that literally the next morning is when all of this horrible series of events came into motion.

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Fact Number 5. How the allegations came about. You've heard that all of this started at school, that something was said to a teacher. What has not been presented to you is what was said to the teacher. You've seen no record. There's been no teacher who has testified. And so we're left with what I would say to you is an extremely important gap. We don't know exactly how this came about, and so unfortunately we're left to speculate. And it's easy to see how this is a situation that could have spiraled out of control. A teacher sees her upset at school. [The complaining witness], is there something wrong? Pop-Pop. Did Pop-Pop do something to you? Yeah. And you heard that's her typical response to a question. Yeah. And a teacher, out of an abundance of caution, calls the police. The police respond. [Detective] told you he has no experience, no training, no expertise with autistic children. And that is a huge problem with this case. [Detective] told you that when he responded out, he interrogated the child using the Reid technique -- which he himself told you is something detectives are taught to use on grizzled, hardened criminal adult suspects -- on a thirteen-year-old autistic child, a technique that is designed to elicit confessions. And I would submit to you that poisoned the well right from the get-go in this case.

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The appropriate course of action would be to get a forensic examiner involved, somebody who has training, who has expertise dealing with autistic children because even [Detective] -- former [Detective] himself acknowledged when he testified, Yes, now I recognize that it's important that you can't be asking leading questions, you can't be interrogating an autistic child to get reliable information. And he agreed that's true. I did not act in accordance with that. I used leading questions. I used the Reid technique. And then from there you have [the complaining witness] repeating the story to her mother, to somebody at CHKD, and now years have passed by, to prosecutors.

 

The next fact is [the complaining witness's] story itself. The story is significant in that in material ways does not make sense, and this is really a series of facts. You heard her testimony. [The defendant] picked me up every day. I spent every day with him. We know that's not true. The abuse happened every night and every morning. We know that's not true. She said that it happened at the wine and cheese store. We know that's not true. She said that [the defendant] taught her how to drive a car when she was twelve years old. And she thinks that it was the day before the allegation was made. We know that's not true. She testified that [the defendant] gave her wine the day prior when she was picked up by her mother at 6:30. I think it stands to reason that a parent might detect something wrong if a thirteen-year-old child had been drinking wine and was picked up at 6:30.

There were several other odd aspects to the story. She had described a volatile home life. She admitted that her parents argued frequently, her parents drank frequently. She had made a statement that Mommy likes to touch [the defendant's son], when discussing the allegation of the sexual abuse. She said that she thought it happened in June. All of this gives grave concern. You cannot just sweep every inconvenient portion of the story under the rug that doesn't fit the prosecution's narrative and say let's just ignore all that, let's put our blinders on, disregard everything that doesn't go along with our theory that this man did it. You cannot do that.

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There was another aspect of her testimony. I know you all heard it on the cross-examination when she acknowledged that she told her stepfather [the defendant's son] that the entire thing might have been a dream. Her own words that she acknowledged. She may have imagined the situation. All of the facts I've discussed to this point are concerning and give rise to doubt, but that statement on the cross-examination standing alone shuts the case down. In this country we do not convict people, we don't put people in prisons, we don't put them behind bars on cold, hard, dirty mattresses on it could have been a dream. It might have been imagined. That testimony standing alone shuts the case down.

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But there's more. When [the complaining witness] is brought to CHKD, she's head-to-toe examined thoroughly by a professional, somebody with experience, somebody who is looking for any unusual signs. And there are no findings at all. Now, the prosecution had attempted to have it both ways by saying, well, if there are signs of abuse or if there are findings of trauma, then he's guilty. If there are no signs of trauma and no signs of abuse, he's still guilty. The only way you can take that evidence is as inconsistent with abuse. That is the only fair way to interpret that evidence, and it is a fact that is inconsistent with abuse having occurred.

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The only thing, and what they have hung their hat on entirely, is the DNA evidence. And I would submit to you in opening statement there was not a full disclosure, and just now in the closing arguments there was not a full disclosure as to what the DNA evidence shows. And I know there was a lot thrown at you, and you're going to have the certificates of analysis. But you have to go through this, and you can go through them yourself.

And we'll start with [DNA analyst #1]. This was the so-called STR analysis. This is traditional DNA analysis. And you heard that she had examined swabs called buccal swabs that are like Q-tips that you swab with of what was identified as a left breast sample and a right breast sample. Now, right from the beginning what you haven't heard is how are those samples collected. What does left breast sample and right breast sample mean? Did the person swab just one specific area? An entire area? We don't know. It's highly significant. An area in this region that would for any ordinary person be exposed might be considered part of the breast area. Was that swabbed? We don't know. We're left to speculate. It is their burden, absolutely their burden, and you should hold that against them. We don't know. I don't know. They don't know. You don't know. None of us know how the swabs were done in this case.

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When the swabs were analyzed, the left breast sample shows [the complaining witness's] DNA -- obviously, it's a swab from her -- and two additional contributors. Two different people. The right breast sample shows, again, of course, [the complaining witness's] DNA and one additional contributor. And you heard [DNA analyst #1's] testimony was you can't say whether that one person might have been one of the other two people but we can say with certainty that there's at least two other people's DNA from those samples, potentially three, from the first round of STR testing. The government has suggested through their line of questioning that, oh, this idea of touch DNA or transfer DNA -- just completely disregard what [defense DNA expert] has said. That's very unlikely. It's almost impossible. Their own evidence contradicts that. We know what happened because there's at least two, if not three, people's DNA from those first samples. It's not just [the defendant's] DNA.

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And then they do the extra round of Y-STR testing, which, if anything, only muddies the water further. For reasons unbeknownst to me -- I thought the explanation was fairly thin -- but [DNA analyst #2] had testified, Well, we didn't -- we didn't do Y-STR on the left breast sample because it just -- it had less DNA. I don't know what you would have to lose by doing that analysis, but they made the decision not to do it. So now we're only going to do the Y-STR testing on the right breast sample. And you heard that this go-round not only is there one additional contributor -- the right breast sample is the one that started off with one additional contributor -- now there's two additional contributors. And we can say with certainty, because the Y-STR testing only looks for male DNA, that it's two males' DNA. So now we've gone from the potential of -- well, the certainty that it's a bare minimum two additional contributors to possibly four when you combine it with the prior STR testing.

Who this other male was? Well, we know that they excluded [the defendant's son], [the defendant's other son]. His name is escaping me, but their other son. Thank you. You've been paying close attention obviously. So we know it's not a family member. So it could be a male teacher, could be a male classmate. It's some other male. It's the perfect illustration of what [defense DNA expert] discussed. And another thing that we don't know about the DNA that he told you. We don't know if it comes from saliva. We don't know if it comes from skin cells. We don't know if it comes from sweat. It could have come from any of those things. It could come from any bodily fluid. It even could come from the skin cells, tens of thousands of which each and every one of us are shedding.

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THE COURT: You have five minutes.

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MR. WESTENDORF: And so now is a good point to talk about reasonable doubt and what that means. That is their burden. Beyond a reasonable doubt is the highest standard that exists in any courtroom in this country. You can go to Texas, California, Alaska. No matter where you go, you will not have a higher burden of proof before you in any courtroom in this country. We're not always here for criminal cases. Sometimes we're here for disputes about money, over custody of a child. The burden of proof before you today is higher than the burden that is required to take your money from you, to take your own children from you. That is how extraordinarily high the burden of proof in a criminal case is, and it is that high for a very simple reason. It is extraordinarily high because in this country we don't guess people into prison. We don't try to mind read and fortune-tell. We rely on facts. And when you look at the facts, not a single one supports that this allegation occurred.

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Momentarily I have to sit down, and this is the last opportunity I get to speak to you. But when you go back into that jury deliberation room, you've heard that your verdict has to be unanimous. I'd like to put that to you in a way that I think makes it a little bit more meaningful. Each and every one of you is individually responsible for the outcome of this case. Every single one of you holds the outcome to this case in your hands. All of you have the responsibility and, I would suggest to you, the obligation to stand up and to say, I will not convict a man on speculation, on guesses, and without facts to support it.

 

The government gets to go last. Just because they say it last doesn't make it so. You get the final word, not me, not the government. You. And in this case the only appropriate verdict on this evidence is not guilty. There is doubt all over this case. This is sadly one of these cases where nobody can walk out of this courtroom happy. This is a family that's been ripped apart. This is a man who has lost his reputation. I don't know that any of those things can be restored. So nobody, regardless of outcome, unfortunately can walk away from this situation happy. But what I would suggest to you is you can walk out of here with your head held high because returning a verdict of not guilty, by doing so you will have done the job that you swore to do because it's the only appropriate verdict on the total lack of evidence in this case to corroborate this story. And, two, you can walk out of here feeling good about that verdict because you will have proven that people from the community will listen to the evidence carefully. They will hold their government accountable. You will have proven that the presumption of innocence, the demand for proof beyond a reasonable doubt, these ideals that we have in America, these sacred ideals, they're not just empty words on a piece of paper. That when called, people from the community will put real meaning and action behind them. The only appropriate verdict in this case is not guilty. He is not guilty, and that's what I'm asking you to do today.