Gunther Fiek

Appellant Brief for Gunther Fiek

Note: In the following brief the names of all of the child witnesses have been changed to protect their privacy.

IN THE COURT OF APPEALS

STATE OF GEORGIA

THE STATE OF GEORGIA, )

)

vs. ) CRIMINAL FILE

) NO.

GUNTHER FIEK. )

Defendant. )

 

APPELLANT'S BRIEF

MITCH DURHAM

GEORGIA BAR NO. 235532

301 WASHINGTON AVENUE

MARIETTA, GEORGIA

(770) 427-0743

ATTORNEY FOR APPELLANT

GUNTHER FIEK

PART ONE

A. STATEMENT OF THE PROCEEDING BELOW AND INTRODUCTION

On March 2, 2001, Mr. Fiek was charged with three (3) counts of Aggravated Child Molestation and twenty-one counts of Child Molestation pursuant to Cobb County Indictment # 01-9-1025. The indictment involved allegations from twenty-three (23) children. A jury trial was held in this matter from August 20, 2001 to September 6, 2001.

At the sentencing hearing on October 21, 2001, the sentence was structured in a manner requiring Mr. Fiek to serve ninety (90) years in custody without the possibility of parole (three 30-year sentences for aggravated child molestation to run consecutively; S.15-8; O.C.G.A. Sections 16-6-4 and 17-10-6.1).

The conviction in this case is the product of the state's reliance on repetition and piling-on repetitive evidence, massive amounts of hearsay, and success at preventing Mr. Mr. Fiek from introducing evidence necessary to mount a defense, confront the state's case and cross-examine witnesses.

Once the inappropriately admitted evidence is stripped from the case and the erroneously excluded evidence is considered, Mr. Fiek's conviction is revealed to be a chimera cast by influence and suggestion, unsupported by common sense. The result of so much error is that an innocent young man has been sentenced to spend 90 years in prison, a virtual life-sentence. Such an unjust result cannot stand.

 

 

B. STATEMENT OF FACTS

In 1995, when he came to the Eastside Baptist Church Activities Center to teach taekwondo, Gunther Fiek was 24 years old. (T.2666¹) He taught taekwondo and ran, or worked in, several other activities at the center for five years. (T.2673) Mr. Fiek worked with some 200 students at Eastside. (T.3300-3312) Throughout his career as an instructor, Mr. Fiek taught about 400 taekwondo students. Including all of the other activities that he taught, he had approximately 2,000 students. In all that time, not a single accusation of any kind had been made against him.

From the moment he began teaching at Eastside, Mr. Fiek's classes were enormously popular. There was often a waiting list of children who wanted to take his classes. (e.g., T.969, 1674, 1675)

Taekwondo classes were offered twice a week for approximately 50 minutes each. (T.894, 917-918). Class size varied between eight and twenty-three students, the majority of whom were between four and eleven years old. (T.3313-3318) Mr. Fiek also taught classes for teenagers and adults. (T.3299)

The Facilities

The classroom was a multi-purpose room in the recreation building of the Eastside Baptist Church. (T.2397, 2413) Early in Mr. Fiek's tenure, the doors to the room were solid. (T.3282-3286) At some point, windows were installed, allowing people in the hallway to see into the room. (T.2392-2393) The doors were never locked during class, and were sometimes propped open. (T.885, 2680-2681, 2735). In addition, there were mirrors on three of the classroom walls, providing a broader view of the room. (T.2393, 2400) The majority of the alleged acts of abuse in this case are said to have occurred in this classroom, during class time, with other students present and parents coming and going from the room. Infra.

Near the entrance to the classroom, another doorway opened into a storage, or equipment, room in which pads and gear for the taekwondo class were kept, along with equipment and materials for other church activities. (T.906, 918, 1861, 1868, 1889, 2063, 2395, 2396, 2415-2416) The equipment room had two entrances: one from the taekwondo room and the other from another room in the activity center. (T.1744-1745, 2391, 2395) Four other programs shared that room with the taekwondo classes. (T.2395, 2396, 2414, 2420) Tim McDaniel, director of the activities program, testified for the state, that it was not unusual for people from other programs to go into the storage room during classes and that it was impossible to have known when someone might do that. (T.2414-2415)

The complainants testified that taekwondo students went into the storage room for various reasons, at various times in the classes, alone, with Mr. Fiek, in groups, and in groups with Mr. Fiek. (e.g., T.1410, 2069 (to get pads); 1477, 1922, ("half the class" went in and several at the same time); 1641-1642, 1815 (helped bring out equipment))

A number of acts of abuse were alleged to have occurred in this storage room, during class, while the other students were present.

Mr. Fiek's taekwondo classroom was a busy place. Classes met one after another, with children coming and going from mid morning through the late afternoon. Parents brought students to class and picked them up when class was through. Parents watched the classes while they were in progress through the windows and several of the complainants' parents conceded that they came and went from the room at the beginning, end and during classes, some staying to watch all or part of the classes. (e.g., T.917, 1414, 1698, 1744, 2061, 2087, 2357).

For example, Ms. Dodge testified that she stayed in the classroom for 10-15 minutes at the beginning or toward the end of class. She went into the room at will and without any schedule or warning. (T.905) Mr. Jackson said he would come into the classroom 15 to 20 minutes before the end of the classes and watch the lessons. (T.931) Ms. Phelps, Ms. Brown, Ms. Madison, Ms. Hall, Ms. Douglass and Ms. Field ' who said she and other parents watched classes "a lot" of times ' agreed. (T.970, 1072, 1250, 1367, 2026, 1484, 1494-1495) Ms. Smith testified that she watched the classes from inside the classroom and Mr. Smith said he sometimes stayed for the entire class. (T.1772,1781, 1784-1785)

Tim McDaniel, director of the recreation center testified that he went to the room from time to time to see how the class was going and that people from other programs that used the storage room also went into the room at various times. (T.2414-2416)

The complainants testified that the doors in the classroom were often open and that parents and siblings came and went from the classroom during the class time. Parker Jackson, for example, testified that the doors were open during class and that parents usually walked in and out. (T.885) Don Evans said that parents were sometimes in the room to watch classes. (T.1308) Ward Hall and Sam Davis testified that parents watched classes while sitting on chairs inside the room. (T.1345, 1414) Rich Field said his mother and other parents sometimes came in the room to watch classes, as did Cory and Henry Baker, Joe Green, Dennis Drake and Peter Vogel (T.1479, 1652, 1675, 1652-1653, 1815, 1869, 2061) Paul Smith added that some parents sat directly across from the door to the equipment room. (T.1744, 1745) Detective Streefkerk conceded that Mr. Fiek's taekwondo classroom was one in which "people would come and go." (T.2357)

Taekwondo Uniforms

The uniforms worn by Mr. Fiek's students had pants with elastic and a drawstring at the waist that had to be tied to hold up the pants. (T.875, 1878, 2098, 2444) Many students wore a T-shirt tucked into their pants in addition to the uniform shirt, which was "real long" and hung over the top of the pants and below the waist. (T.1919, 2097, 2099, 2443, 2649-2650) A belt was wrapped twice around the uniform shirt and pants, slightly above the hips and tied in a particular knot, with the ends hanging down. (T.1743, 1919, 2444, 2099)

Many complainants and their parents conceded that tying the belts with the required knot was difficult and that Mr. Fiek had to help the students with it. ( T.888, 958, 998, 1057, 1303, 1482, 1554, 1566-1567, 1639, 1654, 1742, 1813, 1814, 1830, 1866, 1918, 2063, 2064) Testimony by state witnesses revealed that it was not unusual for the belts and pants to become lose during exercises, making it necessary to retie them. (T.2444, 2445)

The students also wore protective cups over their genitals during sparring matches. These were worn either over or under their uniform pants. (e.g., T.1277-1278, 1816) Some of the students testified that they had trouble putting on or adjusting their protective cups and that Mr. Fiek had to help them with that and said that Mr. Fiek might have touched their privates while doing that. (T.1399, 1401, 1403, 1476, 1728, 1731, 1921)

The Accusations

Mr. Fiek is alleged to have committed 146 separate acts of child molestation against 23 of his students from December 1996, through December 2000. (T.2231) All but a few of the acts involved touching; three of the alleged acts involved licking a complainant penis. One-hundred-thirty-five of the acts are alleged to have occurred during well-attended taekwondo classes. Accusations were elicited from two children that they had been touched in other locations. (T.779, 2043, 2314).

The parents of two complainants, the Vogels and the Bakers have filed a civil lawsuit against the church based on the accusations and conviction.

The Trial

The state presented 63 witnesses, including: 22 complainants, 33 of their parents, two experts, three interviewers, the church pastor, the director of the church athletic center, and Mr. Fiek's taekwondo instructor. The state also presented videotapes of the complainants' interviews. None of the 41 other of Mr. Fiek's students who were interviewed but would not accuse him and who contradicted the complainants were presented. The defense was barred from even mentioning their videotapes or mentioning these "non-accusers" for any purpose, including cross-examination of state witnesses. The state recalled three of its witnesses in a rebuttal case ' two parents, and one of its experts.

The defense presented 5 witnesses, including: Mr. Fiek's sister, two expert witnesses, and one of Mr. Fiek's students. Mr. Fiek testified, denying all of the accusations against him, despite a spirited cross-examination. (T.2663-2739). He continues to assert his innocence.

The Genesis of the Accusations Against Mr. Fiek and How They Grew

The state's theory is that the accusations against Mr. Fiek arose spontaneously, all at once, from 23 children, without suggestion, influence or any type of taint from outside sources. The state presented its witnesses, not in the order in which the accusations were obtained from the complainants, but rather in a random order. Thus, it was impossible at trial for the jury, or the defense, to recognize the direct route of telephone conversations and other methods of dissemination of allegations, as the claims against Mr. Fiek multiplied exponentially through the community, producing complainants along the way. The following section reveals the method by which one claim elicited from a single complainant traveled from mouth to ear to the next mouth and through the community.²

Ms. Phelps elicited the very first accusation against Mr. Fiek from her son, Jimmy, on December 1, 2000. She was prompted to question Jimmy after her daughter complained that Jimmy improperly touched her. To elicit the accusation against Mr. Fiek, Ms. Phelps relied on several suggestive tactics that have been condemned by an uncontroverted body of scientific research literature for their capacity to corrupt children's ability to make accurate reports and to cause children to make, and even to believe, reports of events that they have never experienced.³ (T.763, 963-964, 965, 976; See, p. 16-17, infra.)

Once she elicited her accusation, Ms. Phelps took Jimmy to Safe Path Children's Advocacy Center, where he was questioned by rookie interviewer Monika Merrifield, who had not even taken any classes in interviewing children. (T.2258) Immediately after questioning Jimmy, without any investigation whatsoever, Merrifield told Ms. Phelps that Jimmy had in fact been molested. (T.967)

Arriving home from that interview, Ms. Phelps phoned four parents in the community to repeat the accusation: Ms. Clancy, Ms. Kramdem, Ms. Vogel, and Ms. Baker, all of who had children in the taekwondo program or the church school. (T.965, 971) Ms. Vogel's and Ms. Baker's children would become complainants.

In addition to spreading the accusation she obtained from Jimmy, Ms. Phelps told these four that she was concerned about their children.(T.972, 1661-1662) She did not mention that Jimmy's accusation was not freely disclosed or that she had to apply influence and suggestive methods to secure the accusation she did. (T.961-980)

Following Ms. Phelps's call, Ms. Baker phoned her husband to tell him about the accusation. Assuming that "where there's smoke there might be fire'", Mr. Baker called school principal Jeanne Borders and Mr. Fiek's boss, Tim McDaniel, repeated the accusation passed to him by his wife. (T.1691-1692)

After she was called by Ms. Phelps, Ms. Vogel, called three more neighbors: Ms. Rose (T.1973), Ms. Anne Hall (T.1371), and Ms. Lodge. (T.2083-2084) Mr. Vogel phoned Ms. Swanson. (T.1132, 1138) Children of all these people would become complainants.

Ms. Rose, who had been called by Ms. Vogel, passed Ms. Phelps's accusations to Mr. and Ms. Evans, parents of another complainant (T.1329), and Ms. Lee (T.1371, 1973, 1983)

Mr. and Ms. Swanson passed the accusations, provided by Mr. Vogel, to the Greens, parents of another complainant, on December 3, 2000. (T.1147, 1823)

Having learned of the allegations from Ms. Rose, Mr. Evans passed them on to the Smiths, whose son, Paul, was also a complainant. (T.1329-1330) The same day, accusations somehow reached Ms. Claire Hanlon who called her neighbor, Ms. Edwards, the mother of another complainant. (T.1187, 1188)

After Mr. Lodge - who testified that he did not immediately believe them - attacked Mr. Fiek with a baseball bat and then call the police. (T.1004, 1007-1008, 1009)

Thus, by Sunday, December 3, 2000, Ms. Phelps's accusations had been spread to 11 families ' with 9 complainants ' and two school administrators. It should be noted that some of these parents passed on Ms. Phelps's accusations even before talking with their children. Thus, it really was Ms. Phelps's accusation that seeded the climate of accusations that grew, spreading quickly through the community. That the accusations had spread far and wide by Monday morning, December 4^th, is evidenced by the fact that Ms. King, who was not on Ms. Phelps's phone tree had heard about the accusations and reported them by phone to Ms. Drake, the mother of another complainant (T.1882) At that time Ms. Drake was in a bank parking lot and the bank manager, another parent, came up to her car to ask if she was aware of the allegations (T.1895) Claire Hanlon, who was not on Ms. Phelps's phone tree also learned of the accusations and reported them to Ms. Edwards. (T.1187, 1188)

Officials at the Eastside church immediately spread the accusations. On Monday morning, December 4, 2000, church staff began calling parents of the students in Mr. Fiek's classes, inviting them to a meeting at the church the following night. (T.2458, 2467, 2468) Thus, Ms. Phelps's accusation was delivered to a broader community whose children had never complained about Mr. Fiek despite his years of teaching there.

The church held three meetings, on December 5^th, 6^th, and 11^th. According to pastor Harris, between 90 and 120 people attended the first meeting. Among those in attendance were the parents of the majority of children who would become complainants. (T.923, 924, 1010, 1032, 1033, 1132, 1133, 1139, 1189, 1198, 1199, 1251, 1266, 1311, 1326, 1330, 1335, 1364, 1373, 1424, 1438, 1488, 1492, 1577-1578, 1584, 1599-1600, 822-823, 825, 1662, 1680, 1691-1692, 1782, 1790, 1825, 1841, 1847, 1896, 1897, 1977) Children were present and running around the church at the time of the meeting, talking and playing together that night. (T.1443)

Sam Davis's parents, for example, took him to the church when they went to a meeting. (T.1431) His mother testified that he did not go into the meeting with them, but went with other children whose parents had brought them to the meeting. (T.1443) Zach testified that he knew what the meeting was about immediately after it ended.⁴ (T.1431)

The first meeting was conducted by pastor Harris who opened the meeting and "alerted [the parents in attendance] of the accusations that were being made." (T.2423) Parents were told, among other things, that Mr. Fiek had been accused of molesting a number of children in his classes and had fled from police. ( T.821, 822) Thus, the accusation elicited by Ms. Phelps, along with other inflammatory claims were dispersed by the church pastor ' again without investigation or consideration of how the accusations had been elicited.

At the first meeting, pastor Harris introduced a therapist, Michael Brissette, who allegedly had experience with adolescents. (T.2423) Brissette then provided "comfort and guidance for [the families] in this time of grief," and told them about ways to question their children about abuse by Mr. Fiek. (T.2459-2460, 2469)

Parents took advantage of the opportunity provided by the meeting to discuss in various groups the accusations elicited by Ms. Phelps and, by this time, by others who were on the original phone tree. (T.1189, 1199, 1585, 2471, 2472-2473)

The second, December 6, 2000, meeting was attended by between 75 and 110 people, including the complainants' parents that attended the first. (T.923, 1010, 1198, 1251, 1335, 1364, 1373, 1424, 1438, 1488, 1577, 1578, 1584, 1692, 1768, 1790, 1897, 2342, 2461)

Detective Deryl Streefkerk attended that meeting to tell parents how to report incidents and what to do next. (T.2301, 2341) Streefkerk reported "what was being done to try to get [Mr. Fiek] to come back." (T.2460) Mr. Fiek actually turned himself in to authorities when he heard that the police were looking for him. (Infra, pp. 35-36)

Sergeant Alexander, from the Crimes Against Children Unit, and Jinger Robbins, the executive director at Safe Path Children's Advocacy Center, also spoke at the meeting. (T.2341) Robbins' purpose in attending was to "reduce[e] the trauma for children and their families as they go through in investigation and intervention proceedings around allegations of sexual abuse." (T.2493-2494)

Parents talked among themselves about the accusations. (T.1499, 2471-2472)

Several of the same complainants' parents attended the third meeting on December 11, 2000. (T.1010, 1600, 1692, 1841, 1847, 1897, 2458) A therapist from an organization related to the church was present and offered counseling services to the parents, as was the District Attorney, who explained the legal process that would follow the accusations. (T.2422, 2461, 2470)

In addition to the church meetings, several letters were sent to parents. On December 6^th, executive pastor Ward sent a letter offering counseling services. (T.2462-2463, 2472)

On December 21, 2000, pastor Harris wrote "to a broader base of people," including parents of students who had attended Mr. Fiek's classes in previous years, encouraging those with concerns to "go for evaluation and treatment." (T.2463) Thus, pastor Harris spread the accusations beyond those on the original phone tree and in the immediate community.

Pastor Harris sent another letter on January 19, 2001, providing more information about counseling and the alleged incidents of abuse. (T.2473) On July 6^th, he sent yet another; this one informing parents of the scheduled date of Mr. Fiek's trial. (T.2474)

The School Was Also a Mouthpiece For The Accusations

Almost immediately after learning of the accusations, principal Jeannie Borders prepared a letter that was read to the entire school and sent home to the parents. (T.2468-2469) One complainant testified that the letter was "about what happened," so they would know about the accusations. (T.973, 1699, 1927, 1928, 2084, 2468-2469, 2472) The letter also contained prayers; one calling for Mr. Fiek to admit guilt. (T.1272, 1705) At least one teacher led her class in a prayer about the accusations broadcast by Borders. (T.1705)

With the letter to the parents was a note instructing parents, "if your child has had any contact with Mr. Gunther, you may want to take this opportunity to begin to question them to find out if you need to take any action." (T.973, 1033, 1199, 1263, 1272, 1326, 1336, 1578, 1585, 1680-1681, 1699, 1705-1706, 1768, 1841, 1896, 1978, 1982, 2032, 2084, 2111, 2124)

There is no indication in the record that there was any thought expressed in any of the forums utilized to spread accusations by the church or the school that the claims elicited by one parent and spread by telephone and rumor through the community might not have been true. There is nothing indicating that anyone did anything but immediately subscribe to the hypothesis of Mr. Fiek's guilt. Nor does the record include any consideration of the suggestive and influential means used to produce them.

A number of the complainants attended the Eastside School. Thus they and their parents were subjected to these announcements and letters of accusations and prayers of Mr. Fiek's guilt, prior to the parents eliciting accusations. Many complainants had the opportunity to discuss the accusations because they were in the same classes, knew each other in school, or were neighbors. (T.874, 884, 1070, 1142-1143, 1185, 1249, 1297, 1298, 1329, 1391, 1407, 1444, 1467, 1474, 1530, 1543, 1557, 1587, 1608, 1630, 1681, 1682, 1649, 1711, 1723, 1754, 1755, 1797, 1857, 1865, 1867, 1957, 1881, 1910-1911, 1917, 1970, 1982, 1990, 2038, 2083)

Arthur Rose was also in school all that week, even after his mother managed to elicit accusations from him. (T.1983) Charles Brown went to school on Wednesday, December 6^th, after his parents elicited an accusation through direct and suggestive questions. (T.1077) Rich Field "didn't miss any school", before or after his mother elicited an accusation on December 6^th. (T.1489, 1494) Sam Davis went to school that week, after his mother received a call from Ms. Vogel. An accusation was elicited from him when he and his parents left the Tuesday, December 5^th church meeting. (T.1424, 1425, 1444) Evidencing the conversations about the accusations that were going on around the school is Zach's statement to his mother that if he and a friend went into Mr. Fiek's office, they could find out what happened. (T.1431) Cory Baker went to school that week, after Ms. Phelps called his mother. Several other complainants were also in school, including Christopher Madison, from whom an accusation would later be elicited. (T.1681, 1682)

Accusations were not discovered or "disclosed." As the following sections revealed, they were elicited through numerous suggestive, coercive and influential tactics that have been condemned by a substantial body of uncontroverted scientific research literature for corrupting children's memory and recall ability, resulting in inaccurate reports, that children can come to believe, of events they have never experienced.⁵

Parents' Use of Influence to Elicit Accusations

After she learned that her son Jimmy had inappropriately touched her sister, Ms. Phelps elicited the first accusation against Mr. Fiek. (T.763, 963-964; p. 8) She claimed that she never did anything that might influence Jimmy and that she did not even react to the accusation of molestation that she elicited from him. (T.965, 966)

Jimmy revealed, however, that prior to taking him to be interviewed by police, his mother told him that Mr. Fiek had improperly touched his other students.⁶ (T.959) Jimmy also testified that his mother told him what to tell detective Merrifield during his interview with her.⁷ The prosecutor challenged that statement, however, prompting Jimmy to change his answer.⁸ (T.955)

Similarly, Cory Baker, whose mother received the call from Ms. Phelps, testified that before he was taken to be interviewed by the police on Wednesday, December 6^th, he saw an article in the newspaper about Mr. Fiek and that his parents talked to him about it, telling him that Mr. Fiek touched other students. (T.1634-1635, 1638, 1639). Cory remembered that "sometimes [his parents] talked to me for a long time '" (T.1642) In his tape-recorded interview, Cory said he knew he was being interviewed because "my taekwondo teacher was touching people's privates," and that the night before the interview his parents told him that Mr. Fiek "was touching people's privates." (T.1725) The fact that he referred to other students (i.e., "people's") reveals that he had been told of other accusations before that interview.

Henry Baker also revealed that his parents talked to him about Mr. Fiek before he was interviewed by police, and told him that other boys were involved. (T.1657)

Ms. and Mr. Baker conceded that: they talked about Mr. Fiek with Cory and Henry prior to the police interviews, even though the matter had not been mentioned by either boy (T.1663, 1666, 1687, 1692); they told them that "other people" had made accusations against Mr. Fiek (T.1684); after eliciting an accusation from Cory, Ms. Baker told Cory that she was sorry that bad things happened to him, that she was proud of him for his accusations and that he was a brave boy for making them (T.1663, 1666, 1667); and Ms. Baker told them what the interviews would be about before they occurred.⁹ (T.1665) Ms. Baker talked with Cory at least three more times during that week alone. ¹⁰ (T.1664)

Peter Vogel testified that his parents talked to him about Mr. Fiek before and after he was interviewed by a detective. (T.2071, 2072) Ms. Vogel conceded: that she was "very upset" by what Ms. Phelps told her and that after Ms. Phelps's call, she asked Peter specific questions such as, "does Mr. [Fiek] ever touch your private area when he's tying your belt?" and "does he ever adjust your cup?" (T.2078-2079); that when Peter denied being touched, she at least twice, pressed him for an accusation, asking if his "private area had been touched" (T.2079); and that she questioned Peter again that day. (T.2078-2081) Thus, she elicited an accusation from Peter.¹¹ (T.2079) Ms. Vogel also questioned Peter on other occasions, nurturing accusations of abuse and then took him to see a therapist who pursued allegations. (T.2081, 2083)

Told about accusations of abuse by Ms. Vogel, Ms. and Mr. Hall questioned their son Will, telling him that they had been told that Mr. Fiek had committed inappropriate behavior with his students. (T.1356, 1357, 1359) Ms. Hall, conceded that she asked Will if Mr. Fiek ever "touched his wee-wee." (T.1363-1364) Nevertheless, when Mr. Hall questioned Will about being touched on Sunday night, he denied that it occurred. (T.1351) Evidencing his hypothesis of Mr. Fiek's guilt, Mr. Hall felt that Will's denial was an indication that Mr. Hall was "not making any progress with him." Mr. Hall would accept nothing but an accusation. Mr. Hall questioned Will twice more before taking him to be interviewed by police.¹² (T.1359) Will confirmed that his parents talked to him about molestation before taking him to be interviewed. (T.1347) He also stated that his father and someone else told him what to say to the detectives. (T.1342, 1348)

After she heard from Ms. Vogel, Ms. Rose's belief in the accusations was so strong that she could not sleep until she questioned Arthur about abuse. (T.1973) She talked to Arthur about improper touching that night and the next day, telling him that they "were going to pray for [Mr. Fiek] and [his wife] and that people who do bad things are going to get consequences from it." (T.1974, 1980-1981) She told Arthur that other students had made accusations. (T.1981) She conceded that she asked Arthur more specific questions and raised the idea that he went into the equipment room with Mr. Fiek. Revealing her bias in favor of accusations of abuse, Ms. Rose said that when Arthur told her that he went into the equipment room only to get equipment, she assumed "he did not understand" that she wanted him to talk about abuse. (T.1974-1975) After school that day, Ms. Rose continued to question Arthur, adding more suggestions of acts of abuse she imagined including that Mr. Fiek had kissed him. Eventually, Arthur accepted her suggestions. (T.1976)

Parker Jackson testified that his mother told him about things that Mr. Fiek allegedly did and told him about things that allegedly occurred in the taekwondo classes. (T.889)

Ms. Kelly, whose son Andy claimed that Mr. Fiek touched him in Mr. Fiek's basement, heard about the accusations against Mr. Fiek before she spoke to Andy. When she did, she and her ex-husband told the boy that Mr. Fiek had been accused of doing "some very bad things" and that Mr. Fiek's students said that Mr. Fiek had played with their private parts. (T.807) That confrontation by his parents resulted in Andy's accusations.

Thus, the parents of the complainants who provided the initial accusations ' all prompted by Ms. Phelps's telephone calls that started the whole thing ' used various suggestive and influential types of questioning to elicit accusations from them. The parents who elicited accusations after hearing of the first ones did the same.

Parents and Other Adults Told the Complainants What to Say

Several complainants revealed that they had been told what to say at trial. Rich Field conceded that his parents told him that he had to say, "this and this." (T.1471-1472) Dennis Drake said that his mother reviewed with him accusations that had been elicited. He said, "' she asked me questions, and if I forget, we'd review one of those questions and the things that I forget.'". (T.1877) Peter Vogel testified that he had been told what to say and, "my mom wrote a sheet of paper and I don't really remember." (T.2057) He said also that his mother wrote down for him "what [he] should say" about the accusations against Mr. Fiek and then he read what his mother wrote. (T.2073) Andy Kelly testified that the prosecutor did "not completely" tell him what to say in court. (T.796) Clem White was interviewed twice. On the first occasion, he did not provide any accusations. When interviewed nearly three weeks later, an accusation was elicited. When asked if she had told Clem what to say at the second interview, Ms. White twice said that she had, before she changed her answer and said she had not. (T.1577)

The State Interviews

Detectives Finlayson - who testified as an expert - Streefkerk and Merrifield interviewed the complainants and preserved on videotape the accusations that had previously been elicited by the parents.

Streefkerk, the lead investigator in this case, revealed the ignorance of the interviewers, and stark contradictions between what the investigators believe are appropriate tactics and all of the scientific literature on the subject. For example, Streefkerk did not find it improper to praise a child for a particular answer. He conceded that it is their practice to tell an interview subject that others have made accusations and that the police need help to make sure abuse doesn't happen to anyone else. (T.2350, 2351, 2356) He told Andy Kelly, for example, that he wanted to make sure that Mr. Fiek didn't molest anyone else. (T.2370)

These detectives had concluded, prior to speaking with the complainants that Mr. Fiek was guilty. Their bias is exhibited most clearly in several aspects of their conduct during and subsequent to the interviews.¹³

First, interviewers made no attempt to discover whether the complainants had been questioned by their parents, what types of questions were asked or what influence was applied to elicit the accusations that were repeated during the interviews. (T.2269, 2273, 2275, 2282, 2285, 2286, 2334) Indeed, one parent conceded, "I was expecting them to ask me a lot of questions. They just wanted to know, "what he disclosed." (T.2117)

Most of the complainants began the interviews claiming that they had been told what the interview was about, if not what to say. Cory Baker, for example, said at the start that his father told him "a thousand times" that he was at the interview because Mr. Fiek was "touching people's privates" and that he saw the story about that in the newspaper. (T.1724, 1725)

Examples of the interviewers' refusal to even hear about the influence to which the complainants were subjected include Streefkerk, who was the most brazen in his disregard for gathering accurate facts or that the product of his ineptitude would result in 90 years of incarceration. "You can only do what you can do" was Streekerk's justification for refusing to find out what influence the complainants endured as accusations were elicited. (T.2359) He knew that some complainants had learned about accusations from others, but was not concerned with that at all. (T.2363-2364) He knew it would have been helpful to know about influence and that parents, who elicited the first accusations, were not concerned with accuracy. Because he didn't think parents would remember how or how many times they questioned the complainants, he never asked. (T.2333, 2334, 2342, 2343, 2346) Their trial testimony conceding their methods and repetition shows that Streefkerk's assumption was dead wrong. Supra, pp. 16-21. He also conceded that they never looked at the letters read to all of the students and sent to the parents. Thus, the influence of these letters was never considered.

Finlayson, never asked about how the accusations were elicited in the first place and conceded that she "never" asks parents about influence asserted prior to her interviews. She conceded also her belief it is not important to know what kind of influence might have been endured. (T.2175, 2224, 2225)

Merrifield also knew nothing about the influence used to elicit accusations from the complainants. (T.2269, 2270, 2272, 2273, 2275, 2277, 2282, 2285, 2287) It appears that she never asked.

Several complainants implicated others of Mr. Fiek's students, either as victims of molestation or as witnesses. Those other students contradicted those accusations, either expressly or by failing to corroborate the claims of the complainant.

For example, Jimmy Phelps claimed that Mr. Fiek touched him in the classroom and that "other kids were there." (T.958) Larry Kramdem's mother was one of those called by Ms. Phelps when she elicited the first accusation from Jimmy. (T.971) Larry was interviewed at Safe Path and contradicted Jimmy's statement. Larry said that he wasn't abused and never saw abuse. (NA.72-75)

When asked if anyone touched his penis, Billy Edwards told interviewers that Mr. Fiek licked his penis 59 times in the classroom and that his penis had been touched by his brother and licked by his friends Matthew, Taylor and Christian (T.1217, 1220, 1224, 1225) At the trial he mentions other names but he also said 3 times that "nothing happened." (T.1181) No one checked with these boys.

Don Evans claimed that he saw Mr. Fiek touching his friends, Chris and Abner and some others. (T.1307) Don's class roster included, Curt Smith and Abner King. Both were interviewed by detectives about accusations that had been elicited from others on December 12^th and December 14^th, respectively. Both contradicted Don's claim when they made no accusations against Mr. Fiek.¹⁴ Chuck Thompson and Adam Addison were also in Don's class. Neither was interviewed.

Sam Davis said that Mr. Fiek molested his friend Alan. (T.1452) Alan Sherman was in Zach's class, but was not a complainant. Alan was interviewed twice on December 6, 2000, by Detectives Merrifield and Finlayson. During his interview, he denied that he had been molested, thus, contradicting Zach's claim. (NA.12,18-23)

Alan Sherman was also in the same class as Cory Baker. Several times, Alan told Detective Finlayson that he had "never" been touched by Mr. Fiek. Challenging the boy, Finlayson asked, "so if Cory said that somebody had touched you on your wiener, is that true or is that a lie?" Alan answered, "That is a lie' I have never had anybody touch me there." (NA.21-23)

Jerry Sherman, was interviewed on December 6, 2000. Complainants Henry Baker, Walter Lodge, and Jimmy Phelps were in his class. Interviewers were unable to elicit an accusation from Jerry. (NA.31-39)

All of this was ignored by interviewers, without question or concern, but for the fragments that included accusations.¹⁵ Thus, the interviewers elicited and accepted only stories that were consistent with their a priori beliefs of the occurrence of abuse.

The Accusations Elicited By Parents, Investigators, and at Trial

The accusations elicited from the complainants were generally similar, involving touching of "private areas" over or under clothing in the classroom -- with other students and others present -- or in the equipment room, with or without other students present. The uniformity of the accusations is consistent with the accusation first elicited by Ms. Phelps. It is also consistent with the similarity of the methods used to elicit them by the parents ' once they were made aware of them through Ms. Phelps's phone tree or the school and church.

Rather than repeat all of the accusations, we have included in the following section only aberrations in them.¹⁶

Stories That Changed From Inception Through Trial

Many of the complainants' accusations varied throughout the process of generating them and presenting them at trial. The following are some examples of these.

Ms. Baker elicited from Cory a claim that in the taekwondo room and in Mr. Fiek's office, in an area shared with Tim McDaniels and other people (T.2422), Mr. Fiek touched him inside and outside his pants, held him on his lap and rubbed his privates. Cory never again mentioned anything about the office. (T.1682)

According to Ms. Drake, Dennis told her that Mr. Fiek put Dennis on his lap and touched his private parts with his fingers. (T.1883, 1884) In the videotaped interview, Dennis said that Mr. Fiek looked at his private part once, and did not touch it. (T.1961, 1962) At trial, Dennis said that Mr. Fiek never touched his private part. (T.1877, 1878) He also claimed that it was while the other students were in class that Mr. Fiek took down Dennis's pants and looked at his private parts. (T.1875-1876)

Charles Brown's father elicited a claim that Mr. Fiek "tickled him a couple of times." (T.1095) His mother elicited a claim that it was during stretching exercises that Mr. Fiek touched him. (T.1077) In his interview, Charles said Mr. Fiek "would just pull my underwear up and touch it. And pull it out." (T.1114) At trial, he claimed Mr. Fiek "put his hand on it and he like gently pulled it out." (T.1052)

Mrs. Edwards got from Billy a claim that Mr. Fiek "licked his butt and then poop came out." (T.1201) Billy never again said anything like that. In an interview, he said that he had been touched only by a two-and-a-half year old child. (T.1219)

According to Merrifield, the first interview of Clem White yielded from Clem only a thrice repeated statement that he had not been touched. (T.2286, 2287, 2295) Three weeks later, Clem was interviewed again, at which time an accusation that Mr. Fiek touched him with his hands and mouth in the classroom was elicited. Also elicited from him was a claim that "everybody's eyes were closed" and "everybody was around, except no one saw." (T.1616, 1617, 1621, 1622) At trial Clem said that Mr. Fiek touched him "in the private" with his hand, inside his clothes and licked his private in the equipment room. (T.1559)

Ms. Baker elicited from Henry that Mr. Fiek kissed him with his tongues and that "Mr. [Fiek] had used his penis against him." In his interview Henry said three times that Mr. Fiek never kissed him. (T. 1666-1667, 1717, 1720, 1722) At trial he mentioned nothing about kissing.

Mr. Lodge elicited from Walter a claim that he was touched in the equipment room, "under the guise of having to adjust my son's belt." (T.1004) Walter told his interviewer that he had never gotten a bad touch. When the detective challenged that answer, repeating the question, Walter changed it, saying that he "forgot" that he was touched during class. (T.1043, 1045) At trial, Walter said he told his father that Mr. Fiek touched his "pee-pee" with his hands and never said that Mr. Fiek helped him with his belt. (T.995, 997)

Mr. LaMont reported that Zachary "said [Mr. Fiek] would reach down in his pants and play with him, trying to make him hard." (T.1545) Zachary said nothing about this in his interview or at trial. Detective Merrifield, testified that Zachary could not remember any bad touches. (T.2294, 2295) By the time of trial, however, Zachary said he was touched by Mr. Fiek "in my private place." (T.1533)¹⁷

 

The Complainants

Twenty-three complainants testified. The state never mentioned the 41 of Mr. Fiek's other students that were interviewed and made no accusations and contradicted the accusations elicited from the complainants. See, Error #2, infra, pp.46-54.

The Parents

For each complainant, the state presented one or both parents. Thus, parents injected massive amounts of hearsay by repeating the accusations they elicited from the complainants and multiplying the number of times the accusations were heard and the number of accusations presented ' as some of the hearsay included accusations that had been abandoned by the complainants by the time of their interviews or trial.¹⁸ ( See, pp. 27-29, supra)

The state had the parents describe the circumstances under which they elicited accusations from the complainants. (T.825-826, 1004, 1425-1426, 1838-1839, 1763, 1544-1545, 2079) In general, the parents denied that they used any kind of suggestion, coercion or influence to induce accusations of abuse. (e.g., T.1010-1011, 1427, 1978, 2085) State experts vouch for these methods. Error #3, infra, pp. 54-57.

Cross-examination of the parents and testimony by the complainants revealed that the opposite was true. In fact, the parents' contacts with the complainants about abuse by Mr. Fiek were replete with the suggestive and coercive types of questions and statements that have been condemned by a large and growing body of uncontroverted scientific literature for their capacity to cause children to make, and even come to believe, false reports.

Ms. Vogel, for example, conceded that she repeatedly asked her son about molestation by Mr. Fiek and rejected his answers that he had not been touched. Her persistence eventually elicited an accusation from Peter. She then built upon that, suggesting to him that it occurred in the supply closet. He eventually accepted that suggestion as well. (T.2079, 2081) For more illustrations of parents using suggestion and persuasion to produce accusations, see, pp. 16-22, supra.

Rich Field's mother conceded that she "prayed with" Rich about the accusations that she elicited from him. (T.1490)

The trial court allowed Ms. Jackson, to testify about alleged behavioral changes she noticed in her son while he was in Mr. Fiek's classes. Ms. Evans was permitted to say that she noticed different behavioral changes in Don, such as an obsession for reading the bible. (T.1319) Don said he had been experiencing nightmares from the ghost stories he watched on television. (T.1404) Mrs. Smith said she noticed changes in Paul and that she was been concerned about his behavior at home and in school, but later conceded that he was having problems with other students at school. (T.1761, 1775, 1790) The improper inference from this behavior testimony, as Mr. Fiek made clear in his objection, was that this change in behavior is indicative of abuse. (T.909-912)

 

Videotapes of Interviews

Interviews of the complainants by state interviewers were preserved on videotape and played by the state at trial. The tapes comprised of out of court statements admitted for the truth of the accusations asserted therein were hearsay evidence. The tapes of 41 other of Mr. Fiek's students who made no accusations were, pursuant to trial court ruling, excluded from the trial, along with any mention of them. Thus, the jury never knew about these other students and the contradiction they revealed and Mr. Fiek was denied the ability to effectively cross-examine the complainants and interviewers. See, Error #2, infra, pp. 46-54.

The tapes also revealed that the complainants' statements were not the product of free-recall, but rather were prompted by the parents' and investigators' questions and influence. Nevertheless, and though the out of court statements were devoid of the necessary indicia of reliability, the trial court allowed them to be played for the jury. Thus, the state presented accusations against Mr. Fiek through the complainants' direct testimony, their parents' hearsay testimony, and the videotapes.

State Experts

The state presented two expert witnesses, Jinger Robbins, director of Safe Path Advocacy Center, and Karen Nash, Safe Path's clinical coordinator. Detective Finlayson, who interviewed the complainants was also qualified as an expert in forensic interviews. All of them presented made-up faux-scientific claims that are unsupported and contradicted by the scientific research, and reveal as little knowledge of the scientific research literature as the detectives. Supra, pp. 32-35. They all bolstered the state's case and the complainants' veracity. See, Error #3, infra, pp.54-57.

The Scientific Research Literature Disproves the State's Experts' Claims

In her testimony, Robbins ignored all of the scientific research, despite its universal acceptance. Indeed, none of Robbins' claims about suggestive questioning are supported by the research literature. She cited none, but conceded that she had read the leading text in the field, Jeopardy in the Courtroom, by Ceci & Bruck, p. 8, supra., a book that describes and explains all of the scientific research conducted in the last century on the effects of suggestion on children's memory and recall ability.¹⁹ (T.2556)

The research in Ceci & Bruck illustrates the corrupting effects of suggestive interview features, many of which were present in the parents' and interviewers' questioning here. Ceci & Bruck's conclusions have been accepted by the scientific community and remain uncontroverted. See, Rosenthal, supra. at 364-368. The dozens, if not hundreds, of studies explained in Ceci & Bruck disprove all of Robbins' claims.

For example, Robbins claimed that "selective reinforcement" or offering praise for a particular answer is not suggestive. (T.2511) Pages 139 - 146 of Ceci & Bruck reveal that it is. Robbins told the jury that "peer pressure has not been studied [and]'is typically around issues like doing drugs'" (T.2513) Pages 146-152 of Ceci & Bruck define peer pressure (telling children what others have said) and cite studies revealing that it is a powerful corrupting interview feature. Robbins alleged that repeated questions and interviews are of no concern because clarification is necessary and "good parents" respond to their children. (T. 2507, 2520, 2532) Pages 107-125 of Ceci & Bruck are devoted to studies demonstrating the highly corrupting effects of repeated interviews and questions. And, Robbins told the jury several times that research shows that suggestion is not a concern with older children. (T. 2508, 2891, 2904) Again, the research reveals the contrary. E.g., Ackil & Zaragoza, (1998); "The memorial consequences of forced confabulation: Age differences in susceptibility to false memories." Developmental Psychology, 34, 1358-1372; Zaragoza, Payment, et al. (2001). "Interviewing Witnesses: Forced Confabulation and confirmatory feedback increase false memories." Psychological Science, 12, 173-477. Also, as stated above, Robbins told the jury that children do not state false beliefs after one single 15 to 20 minute interview. (T. 2518) She neglected to tell the jury about research, including Garvin, Wood, et al. (1998), "More than suggestion: the effect of interviewing techniques for the McMartin Preschool case, Journal of Applied Psychology, 83, 347-359 (several suggestive features in a single 10-minute interview can result in false reports) that disprove her claims.

Thus, while Robbins claimed that the questioning by the parents and investigators was of no concern, the research thoroughly disproves her bogus conclusions.

Like Robbins, Nash's claims about disclosure are unsupported and contradicted by the scientific research literature. For example, she stated: "disclosure is a process in which a child will deny that there&rquots been sexual abuse and then they will move toward a tentative disclosure, and then into active disclosure." (T. 2486) As she cited only one authority, Sorenson & Snow in 1991, Nash must have based her statement to the jury that children rarely disclose abuse absent prompting on that study. Nash failed to tell the jury, however, that the study has been criticized for the questionable methods by which the subjects there were determined to have been abused and thus the absence of freely given reports may reflect the fact that the subjects may very well not have been abused. London, Bruck, et al. (in press) "Perspectives on delayed, incomplete, and non-disclosure of child sexual abuse." Cederborg, Lamb, Pipe & Orbach (Eds.) Delayed, Reluctant, and Nondisclosure of Child Abuse. Nor did she tell the jury that the methodology of other studies often used to support her "pattern claim" have been discredited. See, Bruck & Ceci, "Forensic Developmental Psychology: Unveiling Four Scientific Misconceptions" Current Directions in Psychology.

Finlayson told the jury that she has never had a situation in which a child claimed to have been molested because of something another child said to him or her. Coming from a witness that had been qualified as an expert in forensic questioning, this statement carried the force of "expertise." Error #3, infra, pp. 54-57. Finlayson failed to mention to the jury that several scientific studies show that peer pressure is a powerful corrupting feature. See, Ceci & Bruck, supra, pp 146-152. Mr. Fiek objected to Finlayson's qualifications as an expert. (T.2164)

Mr. Fiek's Testimony

Mr. Fiek denied all of the accusations against him, throughout a vigorous cross-examination. (T.2685-2739)

On cross-examination he testified that on Sunday night, December 3^rd, Mr. Lodge telephoned him and told him that he needed to see Mr. Fiek immediately. They met in the church parking lot, where Mr. Lodge accused Mr. Fiek and attacked him with a baseball bat, smashing up Mr. Fiek's car. (T.1007-1008; 2687) Mr. Fiek described that experience, stating that one minute he was laying on the couch with his wife watching a movie and the next he was being accused and attacked. (T.2692)

Confused and frightened, Mr. Fiek drove away from Mr. Lodge, and kept driving, realizing several hours later that he had driven miles from home to the mountains. (T.2691) Mr. Fiek often drove to the mountains when he had problems. (T.2692) At a rest stop, he fell asleep in his car. (T.2693) The next morning, he realized where he was and checked his cell phone messages. (T.2691, 2692)

One message was from detective Reimens, who said he knew what Lodge had done to his car. Mr. Fiek left a message on Reimens' voicemail. When they spoke later, Reimens asked if Mr. Fiek wanted to press charges. He said he didn't and was trying to figure out what had happened. (T.2693) He continued driving on Monday. By that afternoon his voicemail was full of messages from his boss, the pastor, Reimens, and some parents. He also learned that the police were looking for him. Unsure what to do, he stayed in a hotel that night. (T.2695)

Tuesday morning, he spoke to his sister, who told him about calls from several parents and that in addition to the police, the FBI was looking for him. On Wednesday he and his father worked out details for him to turn himself in to the FBI. After sleeping in his car that night, he did. (T.2696-2700)

 

PART TWO

A. ENUMERATION OF ERRORS

1. The trial court's improper admission of massive amounts of hearsay testimony from the parents and through videotapes of interviews with the complainants violated Mr. Fiek's State and Federal Confrontation and Due Process Clause rights.

2. The trial court's improper ruling prohibiting Mr. Fiek from using videotapes of 41 non-accusers or even their statements, deprived Mr. Fiek of the opportunity to cross-examine state witnesses and mount a defense, in violation of his State and Federal Confrontation and Due Process Clause rights.

3. Bolstering and vouching testimony by the state's experts invaded the province of the jury and violated Mr. Fiek's State and Federal Confrontation and Due Process Clause rights.

4. The evidence is insufficient to support the conviction.

appeal for reason that jurisdiction is not reserved to the Georgia Supreme Court since the appeal is based on a criminal conviction that does not carry capital punishment. (Ga. Const. Art. VI, Section I, Par. III)

C. STANDARDS OF REVIEW

Error # 1: Appellant submits that on review this Court must determine if the circumstances surrounding the hearsay statements had the required indicia of reliability. Herrington v. State, 241 Ga. App. 326 (1999).

Error # 2: Appellant submits that on review this Court must determine if the trial judge abused his discretion by not allowing defense counsel to use the interview tapes to cross-examine the state witnesses. State v. Vogelson, 275 Ga. 637 (2002).

Error # 3: Appellant submits that the trial court abused its discretion in allowing the state's experts to bolster testimony of other state witnesses. Roberson v. State, 241 Ga. App. 226 (1999).

Error # 4: Appellant submits that upon review of the evidence in the light favorable to a jury verdict, the evidence is insufficient to support a conviction. Parker v. State, 250 Ga. App. 768 (2001).

D. STATEMENT OF PRESERVATION OF RECORD

Error # 1 was preserved for this Court's consideration by defense counsel's objection at trial. (T. 2563-2567, 2570-2571).

Error # 2 was preserved at trial when defense counsel's cross-examination of the detectives was limited by the Court. (T. 2186-2194).

Error # 3 was preserved at trial by defense counsel's objection at trial. (T.2484, 2526).

Error # 4 was preserved at trial when Appellant's motion for directed verdict was denied. (T. 2570-2571). Also, it was raised during Appellant's motion for new trial February 5, 2003.

PART THREE

ARGUMENT

ERROR #1: THE STATE'S USE OF MASSIVE AMOUNTS OF HEARSAY EVIDENCE VIOLATED MR. FIEK'S CONSTITUTIONAL RIGHT TO CONFRONTATION AND REQUIRES THAT THE CONVICTION BE REVERSED

A. Introduction

The conviction was brought about through the state's use of massive amounts of hearsay testimony. Specifically, as explained above, the state presented one or both of each testifying complainants' parents and had them, inter alia, repeat for the jury the accusations that they had elicited from the complainants prior to the state's interviews. Supra.

The state also presented an enormous amount of hearsay testimony in the form of videotapes of the interviews conducted by state personnel. Supra.

Mr. Fiek objected to the introduction of all of this evidence, correctly arguing that the hearsay did not possess indicia of reliability. His objection was overruled. (T.2564, 2569)

The circumstances in which all of this hearsay was elicited from the complainants rendered it inadmissible. Thus, its introduction at trial violated Mr. Fiek's State and Federal constitutional right to confrontation.

B.None of the Hearsay Testimony Admitted Against Mr. Fiek Was Admissible

1. State and Federal Constitutions Require that to be admissible, Hearsay Must Possess Indicia of Reliability.

In Idaho v. Wright, 497 U.S. 805 (1990), the United States Supreme Court reversed a conviction for child abuse because a physician asked the complainant just four questions about abuse. The Court found that these four questions constituted sufficient influence to render the complainant's statements unreliable, at least as hearsay evidence. In so ruling, the Supreme Court issued a sharp reminder of the relationship between the rules prohibiting hearsay and the Sixth Amendment Confrontation Clause and Due Process:

Idaho v. Wright, 497 US 805, 814, citing Ohio v. Roberts, 448 US 56 (1980); US v. Deeb, 13 F3d 1532 (11th Cir. 1995)(hearsay is inadmissible unless proponent demonstrates adequate indicia of reliability). Thus, absent necessity and "particularized guarantees of trustworthiness," hearsay statements are inadmissible for want of reliability.

The Wright Court defined "particularized guarantees of trustworthiness, explaining:

And, the Court held that, "evidence corroborating the truth of a hearsay statement is not relevant to a finding of trustworthiness." Id, 497 U.S. at 822, 110 S.Ct. at 3150.

These Constitutional principles require that the Court reverse the conviction because the four questions asked of the complainant by the doctor in Wright rendered the circumstances in which she made her accusation devoid of particularized guarantess of trustworthiness necessary to establish adequate indicia of reliability for admission of the out-of-court statements. Id, 497 U.S. at 827.

The 1983 Georgia Constitution, Art. I, Sec. I, ' XIV, also guarantees to every defendant a right to confrontation that includes protection against unreliable hearsay evidence. That right is expressly codified in OCGA ' 24-3-16, the child hearsay statute, which provides that an out-of-court statement offered for the truth of the matter asserted is admissible at trial only when the "child is available to testify and if the circumstances provide sufficient indicia of reliability." (Emphasis added.)

Georgia case law upholds this principle. For example, in Rolader v. State, 202 Ga. App. 134 (1991), the state introduced videotapes of interviews in which a child -- who was available to testify at trial -- accused her father of abuse. Rolader, 202 Ga. App. at 134-135. The child's mother testified that the child told her "that it hurt her to urinate," and that when she asked the child if she had "been drinking a lot of Coca-Colas," she said, "No, Mama'Daddy put his finger down here and it hurts me when I pee." The child was taken to a physician, who testified that when he asked "if anybody had been playing with her private parts," she told him "'someone had been putting their finger down there." The state then played at trial a tape of an interview in which the child made accusations. Rolader, 202 Ga.App. at 135-136.

The Rolader Court recognized that statements offered through OCGA ' 24-3-16 do not fall within a "firmly rooted hearsay exception," and are thus "presumptively unreliable and inadmissible for Confrontation Clause purposes, and must be excluded'absent a showing of particularized guarantees of trustworthiness." The court then held that the circumstances in which the accusations were made were devoid of trustworthiness because, evidence of "prior interrogation, prompting, or manipulation by adults," renders a child's subsequent statement inadmissible for want of reliability, even if the particular out-of-court statement was made spontaneously in the interview. Rolader, 202 Ga. App. at 141, citing Idaho v. Wright, supra.

In Herrington v. State, 241 Ga. App. 326 (1999), the Court reaffirmed the constitutional reliability requirement as established by the presence of particularized guarantees of trustworthiness, articulated in Wright, and Rolader, supra. In Herrington, a child came home from a visit with her mother's brother-in-law and stated, "Terry did it again" and "Terry" stuck his "weenie" in the child's "hiney." The evidence at trial established that the statements were made spontaneously, within 30 minutes of the child arriving home. Herrington, 241 Ga.App. 326 at 327. The Court held that the child's out-of-court statement was admissible as hearsay testimony because of (1) the immediacy and spontaneity of the child's outcry; (2) the child's age, five years-old; (3) the limited time between his return home and the initial outcry; (4) the absence of coaching; and (5) the general consistency of his statements over the course of time. Herrington v. State, 241 Ga. App. at 329.

Thus, State and Federal authority demand that hearsay testimony be excluded unless its proponent establishes that the circumstances under which it was elicited, possess particularized guarantees of trustworthiness and thus bear sufficient indicia of reliability.

2. All of the Hearsay Used in This Case ' the Parents' Testimony and the Videotapes of Interviews - Was Inadmissible for Want of Indicia of Reliability

As shown, supra, complainants revealed, and their parents conceded, that the first accusations against Mr. Fiek were extracted by the parents, pursuant to, inter alia, multiple interviews, repeated questions, peer pressure, and the pursuit of corroboration for their theory of abuse. Not a single accusation was spontaneous. Not one was made prior to Ms. Phelps eliciting the first accusation from Jimmy and then passing it on through the community, which prompted questioning of the other complainants. See, pp. 7-22, supra.

On their face, then, the circumstances in which the out-of-court accusations were elicited far from contained the "guarantees of trustworthiness" required for admission. Many more questions were posed to the complainants by their parents than the four asked of the child in Wright, in which admission of the resulting statement required reversal of the conviction. Further, the circumstances in which accusations against Mr. Fiek were elicited were not even close to those in Herrington, in which the Court allowed the admission of a child's hearsay statements because the evidence revealed a plethora of guarantees of trustworthiness including: absence of any questioning at all; an entirely spontaneous accusation; immediate outcry; and absence of any type of coaching. Herrington, 241 Ga.App. at 329.

Mr. Fiek's case possesses none of those guarantees of trustworthiness. Here, the complainants revealed and the parents conceded that accusations were elicited through direct questioning, not freely disclosed. This alone renders the out-of-court accusations devoid of the indicia of reliability required for admission. For these reasons, introduction of so much unreliable hearsay, through the parents, resulted in the violation of Georgia law, as well as Mr. Fiek's Federal Confrontation rights and requires that the conviction be reversed. White v. Illinois 502 U.S. 346 (1992)(requiring established guarantees of trustworthiness); Idaho v. Wright, supra (1990); Ohio v. Roberts, 448 U.S. 56 (1980).

In Rolader, a videotape of the child's interview was admitted. The evidence showed that prior to that interview, the child was questioned by her mother and professionals trained to interview children. The court found that the questions asked before the taped interview left "the circumstances surrounding the videotaped statements" without the constitutionally required inherent reliability and required reversal. Rolader, 202 Ga.App. at 140.

As in Rolader, the videotapes admitted here depicted interviews conducted after each complainant was questioned by his parents, at least once, and accusations had been elicited. As noted supra, pp 16 to 24, the parents conceded and the complainants revealed the use of directed and pointed questions to elicit the accusations. That in the taped interviews most of the complainants repeated with ease accusations already elicited by their parents does not confer upon the accusations made in the interviews the constitutionally required indicia of reliability that they lacked in the first place for want of guarantees of trustworthiness surrounding the circumstances in which they were initially produced.

Lest the state claim that In the Interest of AH, 259 Ga. App. 608 (Ga. App. 2003), supports admission of the tapes in this case, the evidence there showed that the child disclosed abuse without any questioning at all, and the only parental inquiry merely prompted repetition of the initial, unprompted, outcry. Thus, the taped interview there did not occur subsequent to the direct and pointed questions to which the complainants in Mr. Fiek's case and in Rolader were subjected. Here, not one complainant made an accusation before Ms. Phelps spread her accusations that resulted in the other parents' pursuit of similar accusations. See, pp. 8-15, supra. Thus, the interviews here are nothing but recordings of accusations elicited through the kind of questions condemned by Wright, and Rolader, and that, Herrington holds may not be used if the constitutional indicia of reliability standard is to be met. Thus, AH, is of no avail to the state.

The Confrontation Clause also requires that hearsay be necessary to be admissible. Idaho v. Wright, supra. None of the hearsay used to convict Mr. Fiek was necessary.

The complainants in this case testified. Thus, there was no need to have their parents repeat the accusations they elicited from the complainants, or to play videotapes of interviewers eliciting the same accusations. The state's strategy of inundating the jury with the repetition of accusations through 23 complainants, one or two parents, and 22 videotapes repeating them yet again ' was the prosecutor's choice, not a constitutionally required necessity.

For all of these reasons, the admission of every bit of hearsay used to convict Mr. Fiek, violated the Sixth Amendment as well as Georgia law. Thus, reversal is required.

ERROR #2: THE TRIAL COURT'S RULING PROHIBITING THE DEFENSE FROM USING THE INTERVIEW TAPES OF MR. FIEK'S STUDENTS WHO DID NOT ACCUSE HIM VIOLATED HIS CONSTITUTIONAL RIGHT TO CONFRONTATION

A. The Content of the "Non-Accusers'" Interviews and Videotapes

In addition to the twenty-three complainants, 41 of Mr. Fiek's other students were interviewed. The non-accusers' interviews, conducted by the same detectives who questioned the complainants, were preserved on videotape. The "non-accusers" denied that they were abused or that they had seen abuse. Those who knew of the accusations had heard it through the grapevine of classmates, neighbors, or parents. Several non-accusers directly contradicted the complainants' claims.

For example, when non-accuser Alan Sherman was told that complainant Cory Baker said that Alan had been molested, Alan said that claim was a "lie." (NA.18-23) Non-accuser Larry Kramdem contradicted Jimmy Phelps's claim about the abuse. (NA.73-74)

In addition to these strong denials of abuse, the non-accusers' interviews revealed the bias with which the interviewers approached the complainants and the investigation. In particular, the tapes and statements revealed the interviewers' preconceived belief in Mr. Fiek's guilt, a belief that is perhaps best illustrated in the way they: repeated questions when the answers did not confirm their bias, applied peer pressure by telling non-accusers what complainants had said; and suggested acts of abuse. For example: when Alan Sherman told Finlayson that he had never been touched, she asked him several times more whether he had. When he failed to accuse Mr. Fiek, she challenged him, telling him twice that Cory said that Alan had been molested, then asked him three times more if he had been. (NA.18-22)

When Steve Hiller told Finlayson that he had never been touched, she suggested that he did not remember it: "So, you don't remember him touching you under your clothes or over your clothes?" To his negative response, she continued to apply suggestion, asking if he had been alone with Mr. Fiek, if anything happened with Mr. Fiek that made him feel uncomfortable, if he had touched Mr. Fiek's penis, if he wanted to tell her anything that happened, if it "makes [him] too sad to talk about it." (NA.57-58)

Larry Kramdem told Merrifield that he had not been molested. She challenged his report: Are you being truthful with me?" When he said he was, she applied peer pressure, telling him, "some of your friends have been in here and tell things have happened." When he would not agree, she asked if he had seen anything that wasn't right. When he said he had not, she pressed on: "Did you ever see anybody touch anybody's private parts?" To his reply, "No. Honest," she returned to peer pressure, stating, "I'm just worried because somebody told that you would know. And I'm just making sure you're being truthful with me." He said he was, and she asked yet again, "So you've never seen anybody at Karate being touched in their privates?" (NA.71-74)

Detective Whittaker asked Tommy Jenks: "Has Gunther ever done anything like this [molestation] to you?" when Tommy said he had not, Whittaker asked, "has he ever done anything that makes you feel uncomfortable?" Another negative response prompted, "have you ever seen him ' touch anybody?" Whittaker pressed him with peer pressure, asking, "do you find it strange that all these little boys were coming up and saying that?" (NA.93-98)

When Ken Chapin told detective Streefkerk that he had not been touched, Streefkerk challenged him, asking, "'are you being honest?" (NA.61-62) Note that Streefkerk testified it is his practice to terminate an interview as soon as a child says he hasn't been touched. (T.2346) Ken's tape, and so many others like it concerning Streefkerk and the others, would have soundly impeached the interviewers' claims like that, revealing them to be false. Without the non-accuser tapes, though, these claims were unchallengeable. Thus, Mr. Fiek was deprived of critical cross-examination.

All of the above represent just a few examples from just a few interviews. We urge the court to review the entirety of the non-accuser interviews.

Had the jury been allowed to contrast the non-accuser interviews with those of the complainants, it would have seen that the same interviewers: accepted the accusers' statements at face value, without challenge or question of honesty; did not repeat questions; did not entice them so often to change their answers; did not resort to telling them what others had said; and did not provide them with nearly as many suggestions of impropriety and molestation.

The non-accusers also provided information about the spread of accusations among the students and their parents at the time accusations were being elicited from the complainants. For example: Non-accuser Ken Chapin told Finlayson that he learned about accusations from Parker Jackson. (NA.62) Steve Hiller reported that just after the church meeting, students were already saying that Mr. Fiek was going to jail. He reported too that "two minutes" after he came home his mother told him she was told that Mr. Fiek might be going to jail for "touching some kids in his taekwondo class inappropriately." (NA.55-56)

None of these reports prompted detectives to conduct any investigation, reinterview complainants, attempt to follow the spread of accusations through the community to map out ' as we did in the statement of facts (supra.) ' the spread of accusations. The tapes revealed this, and would have contradicted claims by the interviewers, and the opinion by the state experts, that the interview methods and production of a case against Mr. Fiek were proper and adequate.

B. The Non-accusers' Interviews and Tapes Were Crucial to the Defense

Attempting to use the tapes and non-accusers' statements at trial, defense counsel explained to the court that the right to cross-examination includes the ability to question what was done in the investigation. Counsel explained that the non-accusers, as members of the taekwondo classes, were potential witnesses. Mr. Fiek's right to confrontation and due process rights require that he be permitted to ask about that. (T.2187-2190) The non-accuser interviews, counsel explained, were critical to cross-examination and to confront the state's patently false presentation of the evidence, that gave the impression that 23 complainants alleged abuse in crowded classrooms without contradiction. It was also permitted, counsel explained, to impeach the interviewers claims ' echoed by state experts ' that they acted properly and without bias as they produced the accusations.

Hence, this evidence was critical to the defense.

C. The Court's Erroneous Rulings

Pursuant to the state's motion in limine, the non-accuser tapes were excluded from the trial and Mr. Fiek was prohibited from mentioning them. (T.2187-2193)

The trial court failed to grasp the import of cross-examination and confrontation. Conceding that it did not understand how the non-accuser witnesses could be relevant for any purpose, the court addressed only the state's fear that the jury might learn of the existence of the non-accusers. It was based on that failure to understand the rights to confrontation and cross-examination that the court prohibited the defense from even mentioning the non-accusers' statements for any reason whatsoever. (T.2189) Over defense objection, the court even permitted the state to edit the complainant's interviews to prevent the jury from learning even that they had claimed that specific non-accusers were involved in the alleged molestation. (T.900) Obviously, the court's rulings kept the jury from knowing that the non-accusers denied those claims. Thus, the court ensured that the jury would never be able to assess the accusations in any context but the one created by the state.

D. The Right to Raise a Defense and Cross-Examine Witnesses: The Law

The United States Constitution and Georgia law guarantees an absolute right to present a defense. U.S. Const., Amends. VI and XIV. Crane v. Kentucky, 476 US 683, 690 (1986)(criminal defendants guaranteed meaningful opportunity to present complete defense"); Smith v. State, 263 Ga. 782 (1994). This guarantee includes the right to confront all witnesses. Chambers v. Mississippi, 410 US 284, 294 (1973)(confrontation and cross-examine is essential to due process).

Cross-examination "is implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process." Id. at 295; see, Feretta v. California, 422 US 806 (1975); Higgs v. State, 256 Ga. 606 (1987). In Georgia, the right to a "thorough and sifting cross-examination" is also expressly guaranteed by statute. OCGA ' 24-9-64.

In Davis v. Alaska, 415 US 308 (1974), the Supreme Court held that for cross-examination to be constitutionally effective, a defendant must be permitted to expose facts from which the trier of fact, could appropriately draw inferences relating to the reliability of witnesses. Denial of that opportunity is a "constitutional error of the first magnitude [that] no amount of showing of want of prejudice [could] cure" and requires reversal. Id, 415 US at 318, citing Smith v. Illinois, 390 US 129 (1968).

As discussed above, the tapes and interviews of non-accusers reveal evidence of several things, including: that the state's presentation of 23 complainants' accusations as if there was no contradictory evidence was false; that complainants' claims that non-accusers were involved were expressly contradicted; that the investigators made no effort to confirm or test complainants' stories by comparison with non-accusers' reports; that the investigators began the investigation with, and clung to, a belief in Mr. Fiek's guilt, evidenced by their repeated challenges to non-accusers' reports and blithe acceptance of complainants' claims. Had all this evidence been admitted, it would have raised enough reasonable doubt in the minds of the jurors that an acquittal was likely. This is reversible error. Henderson v. State, 255 Ga. 687 (1986)(conviction reversed because of erroneous exclusion of evidence that was enough to raise a reasonable doubt of defendant's guilt and thus change the outcome of the case).

This evidence was also admissible for several purposes guaranteed by the State and Federal Constitutions.

First, the evidence was admissible to confront the state's misrepresentation of the facts. Specifically, the non-accusers were present in the classroom where most of the acts are alleged to have happened and denied ever witnessing any instances of inappropriate touching. This would have confronted the state's representation that the complainants' allegations were never contradicted by anyone other than Mr. Fiek. These interviews would also have contradicted the state's contention, advanced by both the investigators and the state's experts, that the interviews were conducted properly and that no influence was exerted in the children. The non-accusers' interviews reveal, however, the bias of the interviewers demonstrated by their conduct, revealing their belief that: accusations were good and were to be accepted at face value; contrary statements were to be challenged and disregarded if they could not be changed to accusations; evidence of influence on the production of accusations were to be ignored. The jury was prevented from knowing about any of this, however. The right to effectively confront all witnesses is an integral part of the right to present a defense. Chambers v. Mississippi, 410 US 284, 294 (1973). Mr. Fiek was denied that right.

Second, this evidence was admissible for cross-examination purposes. The non-accusers' statements were necessary to question the credibility of the state's witnesses. In Davis v. Alaska, supra, the Court held that a defendant's right to cross-examination is so sacrosanct that information statutorily prohibited from ever being disclosed must be admitted for that purpose. Mr. Fiek has the same right to expose facts from which the jury could have drawn inferences regarding the reliability of both the complainants and the investigators and experts. He was deprived of that right. The trial court here misapplied a rule of evidence to prevent Mr. Fiek from effectively cross examining and from raising a complete defense.

Third, the evidence should have been admitted to permit Mr. Fiek to exercise the right to present a defense. The right to present witnesses on one's defense is one of the basic rights guaranteed by the Sixth Amendment of the Federal Constitution and the Georgia Constitution. This right was violated when the court prohibited use of the tapes and reports of non-accusers who were witnesses to the non-occurrence of most of the alleged acts.

If the court's concern was that the jury would misuse the non-accuser evidence, finding persuasive the mere fact that 41 students were not abused, the court's exclusion of that evidence was still wrong. The court should have admitted the evidence for its constitutionally required purposes and charged the jury on how it could and could not be used. This is a frequent purpose of jury charges.

Finally, the court's ruling excluding this evidence was not the result of the exercise of discretion. The court's concession that it did not understand how the testimony could be relevant (supra pp 4-50) undermines any claim that sound discretion was exercised. Absent understanding of the argument, the discretion that barred the evidence could not, by definition, have been sound.

For these reasons, the court's prohibition on so much evidence violated Mr. Fiek's Confrontation Clause and Due Process rights and requires reversal.

ERROR #3: THE STATE'S EXPERTS IMPERMISSIBLY BOLSTERED THE ACCUSATIONS AND VOUCHED FOR THEIR VERACITY

A. The State Experts' Testimony

Detective Finlayson, who interviewed the complainants and yet -- over defense objection (T. 2164, 2166) -- was qualified as an expert in forensic interviewing, told the jury that she has never had an interview with a child that was not able to distinguish between the facts that they told her and fantasy and that she has never had a situation ' including in this case ' in which a child claimed to have been molested because of something another child has said to him or her. (T.2197, 2198) These statements constituted typical bolstering testimony in which the expert told the jury that the children in this case were not lying.

Jinger Robbins was qualified as an expert in forensic interviewing and Child Sexual Abuse Accommodation Syndrome. Her testimony concentrated on her approval of the methods of questioning and interview procedures used here by the parents and investigators. Robbins, who actually trained the investigators on this case (T.2534), was allowed to put her "expert" approval stamp on the techniques used by the very same people she trained. By doing so, she bolstered the testimony of the parents and investigators who denied using interview techniques that would corrupt the children's reports. But she did even more: she vouched for the accusations when she told the jury that "it is rare with children, even in some of the most research studies that have been conducted where children state false beliefs after one interview, typically kept at 15 to 20 minutes [sic]." (T.2518)

Karen Nash was qualified as an expert in the treatment of children who have been abused, neglected and traumatized, and was allowed to testify about "the disclosure process in children and especially boys." (T.2481, 2485) Nash told the jury that "disclosure" was a process in which the "child would initially deny that there's sexual abuse" (T. 2486), in which boys are more reluctant to speak about being abused, and in which the relationship with the offender, especially if the offender is a person the child knows, makes the child more reluctant to report abuse. This testimony validated and vouched for the accusations in this case, fitting them to her allegedly scientific paradigm, and telling the jury that the accusations are valid and credible from a scientific perspective.

B. The Experts' Testimony Violated the Prohibition on Bolstering and Vouching

The Federal Constitution prohibits the use of vouching or bolstering testimony. Snowden v. Singletary, 135 F3d 732 (11^th Cir 1998)(vouching/bolstering testimony is improper in state and federal trials). Georgia statutes and decisions agree. OCGA 24-9-80; Roberson v. State, 214 Ga. App. 208 (1994); Roberson v. State, 241 Ga. App. 226(1999).

In Roberson v. State, 241 Ga. App. 226 (1999), this Court reaffirmed the prohibition on bolstering testimony, writing, "in no circumstances may a witness' credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth." Id., at 227. In Roberson v. State, 214 Ga. App. 208 (1994), the court held that a witness' testimony that she has not had a problem with a child telling lies is impermissible, as it invades the province of the jury. See, also, Lagana v. State, 219 Ga. App. 220, 221 (1995)(not the function of witnesses to determine veracity of other witnesses).

The state's experts violated this prohibition, impermissibly bolstering and vouching for the parents, the complainants' claims, and the investigation. In addition, they did so by making baseless opinions that are contradicted by the scientific research literature.

Finlayson's testimony was a direct violation of the proscription against bolstering. Her statements that she has never interviewed a child who could not distinguish fact from fantasy or who was persuaded to make an inaccurate accusation is precisely what the Georgia cases condemn. The other experts violated the same prohibition.

Robbins told the jury that children don't state false beliefs after a single interview, thus stating that the children in this case, who had only been subjected to one interview by the investigators, were telling the truth. This is another direct violation of the prohibition on vouchering.

Robbins also told the jury that "good parents" would not have tainted the complainants' reports. Indeed, she instructed that questioning by parents does not even count as an interview, and is nothing to be concerned with ' as far as causing reports to be inaccurate ' unless it occurs in a divorce or custody dispute. (T.2531, 2532) Thus, she testified that there is no problem with the truth of children's accusations elicited by questioning like that done by the parents here. Note that while Robbins may not have expressly commented on the particular parents' questioning, the direct examination led Robbins to comment on the various features of the methods of questioning used by the parents, vouching for their quality. For these reasons, Robbins' testimony improperly bolstered the accusations elicited by the parents and later preserved on videotape.

Similarly, Robbins' testimony bolstered the interviewers' statements that they had not used methods that could corrupt the complainants' reports (T.2168, 2290, 2315), and vouched for the whole investigation in this case.

Nash instructed the jury that children, especially boys, only very rarely disclose abuse unless questioned about it and told the jury about a so-called pattern of disclosure that provided the jury with a paradigm according to which the accusations must be true because they were elicited pursuant to an accepted method.

All of the above-described testimony violated the prohibition on bolstering testimony and Mr. Fiek's due process rights as well as his right to a trial by jury.

ERROR #4. EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION

Despite the number of witnesses presented by the state, the evidence is insufficient to support the conviction. This is especially true in light of the constitutional violations set out above caused by the state's use of so much improperly admitted evidence (Errors #1 and 3, supra) and the significant amount of critical evidence that Mr. Fiek was prohibited from presenting. (Error #2, Supra)

The only evidence against Mr. Fiek was the complainants' accusations. Indeed, the investigators conceded that they made no investigation whatsoever and found no evidence. (T.2314) But there was much about the accusations that was obfuscated by the state at trial. The record reveals, however, that the evidence wasn't what it was purported to be.

The order in which the state presented its witnesses made it impossible to recognize at trial the path by which the first accusation traveled through the community. The record reveals, however, that the subsequent accusations only as the first entered each house along the way, and picked up additional claims. Thus, when the illusion of randomness and spontaneity cast by the state is dispelled, the power of the accusations is undermined.

The state experts did a brilliant job of distracting the jury from the parental influence that prompting all of the accusations. Indeed, they told the jury that parental influence is not a concern. By validating the parents' efforts and focusing the attention on the taped interviews - to which the complainants arrived primed and ready to repeat the claims elicited by their parents ' the corruptions caused by the parents' were minimized. When the accusations are seen for what they are, the product of direct and influential interrogations, their value as evidence against Mr. Fiek is undermined and their sufficiency to support the conviction eliminated, or at least diminished.

The conviction must also be considered in light of the evidence that should never have been admitted. Massive amounts of constitutionally intolerable evidence were injected in to the trial, repeating and repeating again the accusations that had been elicited from the complainants. Without all of this hearsay, the state's case, limited to the complainants' testimony, compromised by their revelations about influence from outside sources, is left insufficient to support the conviction.

The state's expert testimony also miscast the accusations, alleging unsupportable theories including that questioning by "good parents" cannot taint a child's report, that children distinguish fact from fantasy, and that children the age of the complainants here cannot be corrupted by suggestive questioning was powerful, but never should have been admitted. Without this invasion of the jury's province, the jury would have, without distraction or interference considered the influence applied to the complainants to elicit accusations of abuse.

The sufficiency of the evidence must be considered also in light of the substantial amount of evidence that Mr. Fiek was improperly barred from using at trial. The non-accuser interviews revealed with great clarity the interviewers' bias as they pursued accusations. They reveal the interviewers disregard for investigation. They reveal direct contradictions between the claims of several complainants and the non-accusers that the complainants said were molested or witnessed molestation. They also obliterate the state's presentation of the case that created the illusion that the accusations of 23 complainants were unchallenged by anyone with first hand knowledge of them.

Each of the errors presented in this appeal require reversal. Cumulatively, they certainly do. US v. Pearson, 746 F2d 787 (11^th Cir. 1984). With the inadmissible evidence stripped away, and the improperly excluded evidence considered, the evidence does not support the conviction or the 90-year sentence that this innocent man will serve until he dies in prison.

CONCLUSION

The presumptions with regard to the occurrence of abuse that plagued the production of the accusations, the overreaching of the prosecutor and errors at trial may have been result of a desire to help children and a blinding revulsion for child abuse. Surely those involved in the investigation and prosecution are concerned people. Tragically, the zealousness these professionals resulted in a grave miscarriage of justice that will result in an innocent young man spending the next 90 years in a prison cell. It is unfortunate that Justice Brandeis' eloquent caution three-quarters of a century ago remains appropriate in this case:

Olmstead v. U.S., 277 U.S.438, 479 (1928)(Brandeis, J., dissenting)

For all of the reasons presented herein Mr. Fiek respectfully requests that this Court grant his appeal and reverse his conviction in its entirety.

MITCH DURHAM, ATTORNEY

________________________________

CINDI YEAGER, ATTORNEY

GEORGIA BAR NO. 701550

________________________________

JIMMY D. BERRY, ATTORNEY

GEORGIA BAR NO. 055500

---

1. "T" citations refer the Trial Transcript. Note that pages 772 - 2563 contain testimony of state witnesses. "S" citations refer to the sentencing transcript. "NA" citations refer to the non-accuser transcripts that Appellant has moved to submit in the record.

2. Page limits prevent us from illustrating the path from one parent to the next that produced accusations in the order in which the parents learned of them. Page limits also prevent us from discussing in sufficient detail other critical facts, such as the use of influence to elicit accusations and the interviewers' disregard for the pressure put on complainants to make accusations and that 41 other of Mr. Fiek's students who were interviewed made no accusations and directly contradicted the complainants claims. For every example that we provide, we could present many more. We have submitted herewith a motion to provide the Court with additional documents, including a diagram that reveals the spread of accusations. We have also filed a motion to submit a brief of appropriate length so that we may provide in the detail necessary to consider the facts of the case.

3. For a discussion of these tactics and their effects, see, Ceci & Bruck, The Suggestibility of the Child Witness: A Historical review and Synthesis. Psychological Bulletin, 113, 403-439 (1993); Ceci, & Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony. American Psychological Association Press: Washington, D.C. (1995)[hereafter, "Ceci & Bruck"]; Rosenthal, Suggestibility, Reliability & the Legal Process, Developmental Review, vol. 22: 334-369 (2002).

4. That Zach knew the purpose and content of the meeting belies the claim that he could not have heard about the accusations from anyone. His accusations came only after he went with his parents to the church that night.

5. See, Ceci & Bruck (supra) and Rosenthal (supra).

6. Telling a child what friends said (peer pressure) has been condemned by the research literature for its influential power. Raising the topic also directed Joseph to a conversation of abuse by Mr. Fiek. Even if Ms. Phelps did not expressly tell Joseph what to say, her methods are known to corrupt the child's memory and recall ability. See, Ceci & Bruck, pp. 146 to 152, supra.

7. Ms. Phelps testified that she applied no influence to Joseph to elicit accusations. Joseph's testimony disproves that. Assuming that she testified without guile then, she was unable to recall the pressure she used to elicit accusations. Other parents were likely to be similarly unaware. See, Rayner, K., & Pollatsek, A. (1989). The Psychology of Reading. Prentice Hall, Inc. Division of Simon & Schuster. Englewood Cliffs: NJ. (research proves that adults may recall the major ideas or content, but not the exact words, or sequence of interaction between speakers); Bruck, Ceci,, & Melnyk (1999). "The effect of interviewer bias on the accuracy of children's reports and interviewer's reports." Biennial Meeting of the Society for Child Development. Albuquerque, NM.; Bruck, Ceci, Francoeur (1999) "The accuracy of mothers&rquot memories of conversations with their preschool children." Journal of Experimental Psychology: Applied.

8. Only when a complainant made a statement contrary to the parents' or investigators' theory of guilt was he challenged. Never did an interviewer attempt to confirm or disprove anything supporting their a priori belief in molestation. Tapes of non-accuser interviews are replete with challenges to their statements and answers. Barring Mr. Fiek's introduction of these tapes or their content kept the jury from knowing this.

9. All of these things ' praise for certain statements, creating a negative stereotype, stating that bad things happened and reinforcing accusations - have been proven to generate false reports. See, Ceci & Bruck; Rosenthal, R., supra pages pp.339-342.

10. Note that like Ms. Phelps and the other parents in this case, Ms. Baker became so quickly invested in the notion that her children had been molested, that she ignored the fact that during classes, she sat outside the room and sometimes in the room to watch the classes.(T. 1660) Mr. Baker also sometimes watched the classes. (T. 1689-1690) During all of this time, neither parent suspected anything inappropriate.

11. Ms. Vogel introduced the idea of improper touching, challenged his negative responses, persisted in her hypothesis of abuse, and accepted his resulting accusation without question. Her method has been condemned for its corrupting capacity. See, Ceci & Bruck; Rosenthal, supra.

12. Repeated questions and repeated interviews in which the same questions are asked are another of the methods proven to corrupt children's memory and recall ability. Further, Mr. Hall' preconceived bias toward Mr. Fiek's guilt, even prior to accusations, is evidenced in his refusal to allow for the possibility that Will's denial of abuse was an accurate statement. See, Rosenthal, supra.

13. "The term "interviewer bias" characterizes interviewers who hold a priori beliefs about the occurrence of certain events and, as a result, consciously or unconsciously mold the interview to elicit statements from the interviewee that are consistent with these prior beliefs. Studies have documented that interviewer biases can result in the generation of false reports from children. Rosenthal, supra, at 338-339; Ceci & Bruck, pp. 87-105.

14. Again, the jury was kept uninformed about these denials and contradictions.

15. Because the trial court prohibited Mr. Fiek from introducing the transcripts of the interviews of the 41 children who would not accuse Mr. Fiek and who contradicted the accusations of the 23 complainants, and because the defense was not permitted even to mention those interviews, the jury was unaware of this information and Mr. Fiek's ability to cross-examine the complainants was denied. Error II, infra.

16. Page limits prevent a discussion of accusations made by all of the complainants.

17. Bizarre accusations include ridiculous ones that illustrate the desire to satisfy demands for accusations. For example, Sam Davis said that Gunther was not a Christian because he crossed his fingers behind his back when he prays. (T. 1456)

18. The state's presentation of the videotaped interviews of the complainants was additional hearsay that added to the number of accusations and the number of times they were heard.

19. Space limitations prevent citation to the voluminous research literature that disproves the experts. Upon request, we will provide far more citations and the actual publications. For a review of the research, however, see, Ceci& Bruck; and Rosenthal, supra.

20. The Rolader court noted that "the crux of the question presented is'whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clause, has carried its burden of proving that the [child's] incriminating statements ' bore sufficient indicia of reliability to withstand scrutiny under the Clause." Rolader, 202 Ga.App. at 140, citing, Wright, supra.