Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help Gunther Fiek was born in Peru in 1970, and came with his family to the United States in 1989. The Fiek family settled in Marietta, Georgia in 1991. Gunther began learning martial arts when he was 12, and has black belts in Taekwondo, Karate, and Judo. Gunther attended Kennesaw State University and studied business administration. In 1993 he became a Martial Arts instructor and a soccer coach in 1994. In the fall of 1994, Gunther began attending the Eastside Baptist Church, and became an active member in January, 1996. He became involved with the youth and singles ministries, and taught Sunday school for 5th to 8th grade students. In 1995, he became chief instructor and Director of Taekwondo at the Christian Activity Center, the multipurpose recreation and activity building belonging to the church. During the 1997-1998 school year, he coached boys and girls' soccer for the Eastside Christian School, another ministry of the church. The school serves kindergarten through the 8th grade. Since 1995, Gunther has worked with about 2,000 kids, including 400 Taekwondo students. His classes were very popular, and there was often a waiting list to get into them. His Taekwondo classes were offered twice a week, and the sessions lasted 50 minutes. Class size ranged from 8 to 23 students, between 4 and 11 years old. (He also taught classes for teenagers and adults.) There was never an accusation of any sort of impropriety made against Gunther Fiek, a gifted and dedicated teacher. The doors to Gunther's classroom were solid, but windows were installed so that people in the hallway could see into the room. The doors were never locked, and were often propped open. There were mirrors on three of the classroom walls. Children and parents came and went in and out of the classroom while classes were going on. Some parents watched while sitting on chairs inside the room. Others would watch through the windows. On May 20, 2000 Gunther Fiek got married. Life was good. But six months later, a panic-driven witchhunt would devastate his promising young life and the lives of those he loves. The Trouble Begins On Sunday night, December 3, 2000, Gunther was lying on the couch with his wife, watching a movie, when he received a phone call from a Mr. Lodge, the father of one of his students. [The names of all accusing children and their parents have been changed at this web site.] Lodge told Gunther that he needed to see him immediately and they agreed to meet at about 10 PM in the church parking lot. When he arrived, Mr. Lodge accused Gunther of molesting his son and, after interrupting Gunther acouple of times, attacked him and his car with a baseball bat. Very badly shaken, Gunther drove to the mountains, where he sometimes went to seek refuge when he had problems. At a rest stop, he fell asleep in his car. When he woke, he checked his cell phone for messages. One message was from Detective Riemens. When Gunther returned the call, Riemens asked him if he wanted to press charges against Lodge. Gunther said that he did not. But Gunther knew something terrible was going on. He drove some more. Later in the day, he discovered that the police were looking for him. He checked into a hotel to try to figure out what to do. He called his sister, who told him that the FBI was looking for him as well. On Tuesday he asked his father to get a lawyer and on Wednesday he worked out a plan with his father on how to turn himself in - which he did the following day. What Had Happened On the previous Friday, December 1, the sister of one of Gunther's students complained to her mother that her brother had improperly touched her. The mother - who I will call Mrs. Phelps - interrogated her son until he made an accusation against Gunther. Phelps then took the boy to the Safe Path Children's Advocacy Center, where an untrained and inexperienced interviewer, Monika Merrifield, questioned the boy and told the mother that he had definitely been molested by Gunther. Mrs. Phelps went home and immediately got on the phone, spreading panic among other parents in the school. These parents called their friends. The hysteria spread like wildfire. Parents started to interrogate their kids, and some of them elicited accusations of Gunther improperly touching their kids during Taekwondo classes. On Monday morning - the day after Lodge attacked Gunther with a baseball bat - the church got into the act, calling parents, inviting them all to a meeting at the school the following night. This was the first of three meetings that would take place within the week. Parents were told that Gunther had been accused of molesting children and that he had fled. A therapist named Michael Brissette "provided comfort and guidance for [the families] in this time of grief." He told them to question their children about abuse by Mr. Fiek. Jeannie Borders, the school's principal, also prepared a letter that was read to the entire school and sent home to parents. The letter contained prayers, including one calling for Gunther to admit guilt. The letter also directed parents to question their children about Gunther "to find out if you need to take any action." No one involved ever considered the possibility that Gunther Fiek might be innocent. Parents took their children to the police, telling them what to say on the way, telling them that Gunther had molested other children and had fled or was in jail. At the police station the children were interviewed by "experts" - experts who had no training in child development or credibility and reliability of children. The videotapes of these interviews reveal an ignorance of all of the scientific literature on the subject. The interviewers elicited and accepted only stories consistent with their a priori beliefs in Gunther's guilt. The Trial And Conviction of Gunther Fiek At trial, the state's experts - Jinger Robbins, director of Safe Path, and Karen Nash, it's clinical coordinator - presented made-up faux-scientific claims unsupported and contradicted by scientific research. Robbins insisted she had read the leading textbook in the field - Jeopardy in the Courtroom by Ceci and Bruck - but all of the studies in that book disprove Robbins' claims. Robbins said that "selective reinforcement" is not suggestive. She said, "peer pressure has not been studied." Robbins claimed that repeated questions and interviews are of no concern. And Robbins claimed that suggestion is not an issue with older children. All of the research refutes all of her claims. (See, for example, some of the articles in the NCRJ reading room , such as the protocols adopted by the state of Michigan.) The state played the videotapes of the interviews of the 22 accusers. But the defense was barred from even mentioning the 41 other students who were videotaped but did not accuse and who contradicted the testimony of the accusers. The jury was not allowed to know that these students even existed. The state also permitted parents to testify, injecting massive amounts of hearsay into the trial. Several children revealed that they had been told what to say at trial. On September 6, 2001, Gunther Fiek was found guilty of 18 counts of Child Molestation and 3 of Aggravated Child Molestation. On October 21, 2001, he was sentenced to serve 90 years in prison without possibility of parole. Gunther's conviction is a chimera cast by influence and suggestion, unsupported by common sense. As a result a fine young man - innocent of wrongdoing - may be doomed to spend the rest of his life in prison. A new-trial motion has been filed. But we need your help . Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help Gunther Fiek was born in Peru in 1970, and came with his family to the United States in 1989. The Fiek family settled in Marietta, Georgia in 1991. Gunther began learning martial arts when he was 12, and has black belts in Taekwondo, Karate, and Judo. Gunther attended Kennesaw State University and studied business administration. In 1993 he became a Martial Arts instructor and a soccer coach in 1994. In the fall of 1994, Gunther began attending the Eastside Baptist Church, and became an active member in January, 1996. He became involved with the youth and singles ministries, and taught Sunday school for 5th to 8th grade students. In 1995, he became chief instructor and Director of Taekwondo at the Christian Activity Center, the multipurpose recreation and activity building belonging to the church. During the 1997-1998 school year, he coached boys and girls' soccer for the Eastside Christian School, another ministry of the church. The school serves kindergarten through the 8th grade. Since 1995, Gunther has worked with about 2,000 kids, including 400 Taekwondo students. His classes were very popular, and there was often a waiting list to get into them. His Taekwondo classes were offered twice a week, and the sessions lasted 50 minutes. Class size ranged from 8 to 23 students, between 4 and 11 years old. (He also taught classes for teenagers and adults.) There was never an accusation of any sort of impropriety made against Gunther Fiek, a gifted and dedicated teacher. The doors to Gunther's classroom were solid, but windows were installed so that people in the hallway could see into the room. The doors were never locked, and were often propped open. There were mirrors on three of the classroom walls. Children and parents came and went in and out of the classroom while classes were going on. Some parents watched while sitting on chairs inside the room. Others would watch through the windows. On May 20, 2000 Gunther Fiek got married. Life was good. But six months later, a panic-driven witchhunt would devastate his promising young life and the lives of those he loves. The Trouble Begins On Sunday night, December 3, 2000, Gunther was lying on the couch with his wife, watching a movie, when he received a phone call from a Mr. Lodge, the father of one of his students. [The names of all accusing children and their parents have been changed at this web site.] Lodge told Gunther that he needed to see him immediately and they agreed to meet at about 10 PM in the church parking lot. When he arrived, Mr. Lodge accused Gunther of molesting his son and, after interrupting Gunther acouple of times, attacked him and his car with a baseball bat. Very badly shaken, Gunther drove to the mountains, where he sometimes went to seek refuge when he had problems. At a rest stop, he fell asleep in his car. When he woke, he checked his cell phone for messages. One message was from Detective Riemens. When Gunther returned the call, Riemens asked him if he wanted to press charges against Lodge. Gunther said that he did not. But Gunther knew something terrible was going on. He drove some more. Later in the day, he discovered that the police were looking for him. He checked into a hotel to try to figure out what to do. He called his sister, who told him that the FBI was looking for him as well. On Tuesday he asked his father to get a lawyer and on Wednesday he worked out a plan with his father on how to turn himself in - which he did the following day. What Had Happened On the previous Friday, December 1, the sister of one of Gunther's students complained to her mother that her brother had improperly touched her. The mother - who I will call Mrs. Phelps - interrogated her son until he made an accusation against Gunther. Phelps then took the boy to the Safe Path Children's Advocacy Center, where an untrained and inexperienced interviewer, Monika Merrifield, questioned the boy and told the mother that he had definitely been molested by Gunther. Mrs. Phelps went home and immediately got on the phone, spreading panic among other parents in the school. These parents called their friends. The hysteria spread like wildfire. Parents started to interrogate their kids, and some of them elicited accusations of Gunther improperly touching their kids during Taekwondo classes. On Monday morning - the day after Lodge attacked Gunther with a baseball bat - the church got into the act, calling parents, inviting them all to a meeting at the school the following night. This was the first of three meetings that would take place within the week. Parents were told that Gunther had been accused of molesting children and that he had fled. A therapist named Michael Brissette "provided comfort and guidance for [the families] in this time of grief." He told them to question their children about abuse by Mr. Fiek. Jeannie Borders, the school's principal, also prepared a letter that was read to the entire school and sent home to parents. The letter contained prayers, including one calling for Gunther to admit guilt. The letter also directed parents to question their children about Gunther "to find out if you need to take any action." No one involved ever considered the possibility that Gunther Fiek might be innocent. Parents took their children to the police, telling them what to say on the way, telling them that Gunther had molested other children and had fled or was in jail. At the police station the children were interviewed by "experts" - experts who had no training in child development or credibility and reliability of children. The videotapes of these interviews reveal an ignorance of all of the scientific literature on the subject. The interviewers elicited and accepted only stories consistent with their a priori beliefs in Gunther's guilt. The Trial And Conviction of Gunther Fiek At trial, the state's experts - Jinger Robbins, director of Safe Path, and Karen Nash, it's clinical coordinator - presented made-up faux-scientific claims unsupported and contradicted by scientific research. Robbins insisted she had read the leading textbook in the field - Jeopardy in the Courtroom by Ceci and Bruck - but all of the studies in that book disprove Robbins' claims. Robbins said that "selective reinforcement" is not suggestive. She said, "peer pressure has not been studied." Robbins claimed that repeated questions and interviews are of no concern. And Robbins claimed that suggestion is not an issue with older children. All of the research refutes all of her claims. (See, for example, some of the articles in the NCRJ reading room , such as the protocols adopted by the state of Michigan.) The state played the videotapes of the interviews of the 22 accusers. But the defense was barred from even mentioning the 41 other students who were videotaped but did not accuse and who contradicted the testimony of the accusers. The jury was not allowed to know that these students even existed. The state also permitted parents to testify, injecting massive amounts of hearsay into the trial. Several children revealed that they had been told what to say at trial. On September 6, 2001, Gunther Fiek was found guilty of 18 counts of Child Molestation and 3 of Aggravated Child Molestation. On October 21, 2001, he was sentenced to serve 90 years in prison without possibility of parole. Gunther's conviction is a chimera cast by influence and suggestion, unsupported by common sense. As a result a fine young man - innocent of wrongdoing - may be doomed to spend the rest of his life in prison. A new-trial motion has been filed. But we need your help . Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help About Gunther Fiek Gunther Fiek was born in Peru on an October day in 1970. He was married on 05/20/2000. He has been doing Martial Arts since age 12 and is a 3 rd DAN Black Belt Taekwondo expert, holding National and International certification; he also holds Black Belts in Karate and Judo. In addition to being a Martial Arts Instructor, he also holds national certification as a soccer coach through the US Soccer Federation and Georgia State Soccer Association. He has been a Martial Arts Instructor since 1993 and a Soccer coach since 1994. He attended Kennesaw State University in Georgia where he studied Business Administration. He started coaching soccer at Metro North Youth Soccer Association in Marietta, GA, where he coached various teams since 1994 until the spring of 2000. He also gave private coaching lessons to individuals or groups. In 1995, he became a chief instructor and Director of the Taekwondo program offered at the Christian Activity Center (CAC), a multipurpose recreation and activity building of Eastside Baptist Church (EBC) located in Marietta, GA. With time, he became involved with different areas in the recreation ministry. In 1996, he became Director of the Eastside Pee-Wee sports camp, an annual Summer Camp offered to kids between the ages of 4 thru 7 years, held at the CAC. He started attending Eastside Baptist, a 5000-member church at the time, in the fall of 1994 and became an active member in January of 1996. As a member of Eastside, he was primarily involved with the youth and singles ministry, as well as other areas of the church. He has taught Sunday school for 5 th to 8 th grade students. His responsibilities with the youth ministry, in addition to teaching on Sundays, included participating in events throughout the year like weekend retreats and week long out of town camps, just to mention a few. Eastside Christian School (ECS), a private K-8 th grade school and a ministry of EBC, located on the church’s campus, approached Gunther about helping them to start a soccer program for their middle school. In the school year of 1997-98, he coached the private school’s first boy's and girl’s soccer team. Due to lack of interest, it became the only year that girl’s soccer was offered at ECS. He continued coaching and developed the boys program until the school year of 1998-99. After that, he passed on his position as coach, but remained indirectly involved with the program as a consultant until the fall of 2000. Since 1995, Gunther has worked with a significant number of children through the different organizations and ministries he was involved with. As a Taekwondo instructor at Eastside alone, he has had approximately 200 students. 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. As of 12/01/2000, he had 150 active students taking his Taekwondo classes, which were offered twice a week for approximately 50 minutes each. Class size varied between eight and twenty-three students, the majority of whom were between four and eleven years old. Mr. Fiek also taught classes for teenagers and adults. The Facilities The classroom was a multi-purpose room in the recreation building of the Eastside Baptist Church. Early in Mr. Fiek’s tenure, the doors to the room were solid. At some point, windows were installed, allowing people in the hallway to see into the room. The doors were never locked during class, and were sometimes propped open. In addition, there were mirrors on three of the classroom walls, providing a broader view of the room. 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. 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. The equipment room had two entrances: one from the taekwondo room and the other from another room in the activity center. Four other programs shared that room with the taekwondo classes. 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. 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. 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. Several parents testified at Trial that they had stayed in the classroom for different periods of time and were able to go into the room at will. 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. Several complainants testified that the doors were open during class and that parents usually walked in and out or watched classes while sitting on chairs inside the room. Detective Streefkerk conceded that Mr. Fiek’s taekwondo classroom was one in which "people would come and go." The Accusations The very first accusation against Mr. Fiek was elicited by Ms. Phelps 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, 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. 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. Immediately after questioning Jimmy, without any investigation whatsoever, Merrifield told Ms. Phelps that Jimmy had in fact been molested. Arriving home from that interview, Ms. Phelps phoned four parents in the community to repeat the accusation: Ms. Cinnek, Ms. Kramdem, Ms. Vogel, and Ms. Baker, all of who had children in the taekwondo program or the church school. 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. 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. Following Ms. Phelps’s call, other parents started to call other people; within 48 hours, a given number of families had already got word of the accusation. Thus, by Sunday, December 3, 2000, Ms. Phelps’s accusations had been spread to at least 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. 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. The Church Further Disseminated Accusations of Abuse Without Question or Investigation 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. 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. Children were present and running around the church at the time of the meeting, talking and playing together that night. 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." 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. 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. 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. The second, December 6, 2000, meeting was attended by between 75 and 110 people, including the complainants’ parents that attended the first. Detective Deryl Streefkerk attended that meeting to tell parents how to report incidents and what to do next. Streefkerk reported "what was being done to try to get [Mr. Fiek] to come back." Mr. Fiek actually turned himself in to authorities when he heard that the police were looking for him. 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. 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." 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. 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. One complainant testified that the letter was "about what happened," so they would know about the accusations. The letter also contained prayers; one calling for Mr. Fiek to admit guilt. At least one teacher led her class in a prayer about the accusations broadcast by Borders. 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." 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. Complainants Mixed and Mingled as Accusations Spread. 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. Influential Methods of Questioning Used by Parents, the School and State Investigators Produced the Accusations of Abuse. Accusations were not discovered or "disclosed." 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. Parents’ Use of Influence to Elicit Accusations After she learned that her son Jimmy had inappropriately touched his sister, Ms. Phelps elicited the first accusation against Mr. Fiek. 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. 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. Jimmy also testified that his mother told him what to tell detective Merrifield during his interview with her. The prosecutor challenged that statement, however, prompting Jimmy to change his answer. A significant number of the complainants revealed that their parents had given them a variety of pieces of information before taking them to be interviewed by police, all of these pieces referring to Mr. Fiek’s "multiple acts in touching his students". In fact, according to the parents and complainants’ testimony, most of the accusations were elicited by direct and specific questions at home, without a single complainant making a spontaneous statement. 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. The State Interviews Detectives Mary 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. It is worth to mention that, according to their own testimony, these interviewers had never been trained in Child Development or Credibility and Reliability of Children. 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. 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. 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. Indeed, one parent conceded, "I was expecting them to ask me a lot of questions. They just wanted to know, "what he disclosed." Most of the complainants began the interviews claiming that they had been told what the interview was about, if not what to say. 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. He knew that some complainants had learned about accusations from others, but was not concerned with that at all. 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. Their trial testimony conceding their methods and repetition shows that Streefkerk’s assumption was dead wrong. 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. Merrifield also knew nothing about the influence used to elicit accusations from the complainants. 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. However, the defense was barred to even mentioning these other interviews. All of this was ignored by interviewers, without question or concern, but for the fragments that included accusations. Thus, the interviewers elicited and accepted only stories that were consistent with their a priori beliefs of the occurrence of abuse. 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. They all bolstered the state’s case and the complainants’ veracity. 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, 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. 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, 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. 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…" 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. 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. 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. 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. 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." Finlayson failed to mention to the jury that several scientific studies show that peer pressure is a powerful corrupting feature. See , Ceci & Bruck, p. 146-152. Mr. Fiek objected to Finlayson’s qualifications as an expert. Other factors Some other factors that played a significant role in Mr. Fiek’s trial: 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. 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. The students also wore protective cups over their genitals during sparring matches. These were worn either over or under their uniform pants. 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. 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’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. 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. Several complainants revealed that they had been told what to say at trial. There were several absurdities; for instance, Billy Edwards told interviewers that Mr. Fiek licked his penis 59 times in the classroom during taekwondo class; also that his penis had been touched by his brother and licked by his friends Matthew, Taylor and Christian. At the trial he mentioned other names but also said 3 times that "nothing happened". No one checked with these boys. The Indictment, Trial and Sentence 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. The jury found Mr. Fiek guilty of 18 counts of Child Molestation and 3 of Aggravated Child Molestation. 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). 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. 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. Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help Status as of February 2008 The Trial began in the Cobb County Superior Court with Judge George Kreeger presiding on August 20, 2001.ended on September 6, 2001. It ended with a conviction verdict on Friday September 7, 2001 on or about 6:30 PM after almost three days of jury deliberations. Judge Kreeger sentenced Gunther on October 22, 2001, to 180 years: 90 years to serve in custody and 90 years probation. A Motion for New Trial was filed on October 25, 2001 by trial lawyer Jimmy Berry. Shortly after, Gunther’s family hired Mr. Robert Rosenthal, a New York based lawyer who is an expert in Child Molestation cases involving Mass Hysteria. Mr. Rosenthal agreed on analyzing the case and provided legal advice to the family. At about the same time, Gunther filed for Indigent Status and applied for a state assigned attorney. Mr. Mitch Durham was assigned the case for the appeal stages. An Amended Motion for New Trial was filed byattorneys Mr. Mitch Durham, Mr. Jimmy Berry and Ms. Cindi Yeager. The later two acting Pro-Bono. The trial transcripts had more than 3,400 pages. Mr. Rosenthal prepared a document of about 230 pages, summarizing the trial transcripts. By analyzing the trial testimonies, Mr. Rosenthal found that the charges on which Gunther was convicted did not result from isolated instances of Child Molestation as the Prosecutor, Eleanor Kornahrens, now Eleanor Dixon, convinced the jury during trial. Instead, Mr. Rosenthal found that the charges were the result of a chain of events resulting in Mass Hysteria. The most important was that, according to the testimony of one of the “non-accuser children”, the first child that accused Gunther and triggered the chain of events was apparently lying. This testimony was ignored by defense lawyer, Mr. Jimmy Berry. The other children were all related in one way or another and had been all questioned by their parents several times before accusations were elicited and taken to forensic interviews. A hearing for the Motion for New Trial was held at the Cobb County Superior Court and presided by judge George Kreeger, who was also the trial judge, on February 5, 2003. The Motion for New Trial was denied by Judge Kreeger on February 10, 2003. A Notice of Appeal to the Georgia Court of Appeal was filed on March 11, 2003. An Appellant Brief was filed on October 2, 2003 and an Appellant’s Reply Brief was filed on December 19, 2003. The Georgia Court of Appeals affirmed the convictions on March 24, 2004. A Petition for Certiorari to the Georgia Supreme Court was filed on April 13, 2004 and was denied on September 7, 2004. During the appeal stages, Gunther and his family started to compile facts and information related with the case and the Trial. On one side, the Discovery documents were reviewed and a copy was obtained of the more relevant issues. Also, newspaper and Internet articles related with the trial were compiled. A copy of 74 articles was obtained, approximately 60% of them were pre-trial related articles and most contained only negative information about the case. The next step in the Appeal process was the State Habeas. Gunther’s family hired Ms. Deborah M. Vaughan of Novy, Jaymes and Vaughan law firm. An Application for Writ of Habeas Corpus was filed at the Superior Court of Mitchell County on April 25, 2005, the county where Gunther was being held in custody. A Brief in Support of the Application for Writ of Habeas Corpus was also filed by Ms. Vaughan and her law firm partner, Mr. Eugene Novy. Among the enumeration of errors listed in the Application for Writ of Habeas Corpus, one of them was the intent to get the court to review and accept as part of the record the video taped forensic interviews of the “non-accuser” children along with the transcript of those interviews. Also, the pre-trial and trial publicity newspaper and Internet articles were presented. Several other errors that contributed to the deficient performance of his trial counsel were raised for this purpose. DVD copies of the video taped forensic interviews of the “non-accuser” children that were given to the defense by the state during the pre-trial discovery phase were made. An affidavit signed by each “non-accuser” child, and parent, authenticating its forensic interviews were also obtained and introduced as evidence. Subpoenas were served to Ms. Eleanor Dixon, the trial prosecutor, and Mr. Berry for their appearances to the habeas hearing. Ms. Dixon was also served with a production subpoena requiring her to bring her entire file, including the original tapes, to the hearing. An evidentiary hearing for the Writ of Habeas Corpus was held on December 12, 2005, at Autry State Prison, located in Mitchell County in southwest Georgia. The hearing lasted about 6 hours and was presided by Judge Richard Porter III, Judge of Superior Courts for the South Georgia Judicial Circuit. On a positive note for the case, Judge Porter accepted as part of the record about 74 news articles concerning the case and the affidavits signed by the “non-accuser” children. However, since Ms. Dixon did not bring the entire file or the original tapes, Judge Porter seemed reluctant to accept the DVD copies of the interviews based on the state’s objection. Nonetheless, Judge Porter gave Gunther’s lawyers, Ms. Vaughan and Mr. Novy, until January 31, 2006 to review the original video taped interviews and come up with a “better argument” to introduce the “non-accuser” children interviews as evidence. Ms. Dixon had testified that she had no control of such evidence and that they were stored by the Cobb County Police Department. Ms. Vaughan contacted Sgt. Forester, Supervisor at the Cobb County Crimes Against Children unit, and he advised Ms. Vaughan that any request and arrangements for reviewing or obtaining the tapes had to be done through Ms. Dixon. An Open records Request letter to Sgt. Forrester was sent on January 12, 2006. Lt. T. R. Alexander, from the Cobb County Department of Public Safety, Central Records Division, is sent a second, but new, Georgia Open Records Request on January 13, 2006. After an exchange of several letters and phone calls with various Cobb County officials, Ms. Vaughan sent a letter requesting assistance to Judge Porter on January 24, 2006. The letter mentioned, “for 45 days we have received nothing but the continued ‘run around’ from the Cobb County District Attorney Office, Cobb County Crimes Against Children Unit Supervisor and from the head of the Cobb County Police Department Central Records Division. On February 16, 2006, in a written letter Judge Porter decides to admit without further necessity of authenticity the DVD’s that were not admitted on the Hearing date. Meanwhile, the original videotapes were never produced by Cobb County. The Petition for Writ of Habeas Corpus was denied by Judge Porter on May 31, 2006, on a final order prepared by Mr. Mark Gilbert, Special Assistant Attorney General. A Petitioner’s Notice of Appeal to the Georgia Supreme Court was filed on June 16, 2006. An Application for Certificate of Probable Cause from the Superior Court of Mitchell County’s denial of Petition for Habeas Corpus was filed in the Georgia Supreme Court on June 28, 2006. The Application for Certificate of Probable Cause to appeal the denial of Habeas Corpus was denied by the Georgia Supreme Court on November 6, 2006. The next stage, which will be Gunther’s last chance to revert his conviction, is a Federal Habeas. There is a deadline to file the corresponding application by June 2007. Currently, Attorney Rodney Zell, of Zell and Zell law firm of Atlanta, has been retained for the Federal Habeas. Mr. Zell is in the process of reviewing the files that pertain to the case. An Application for a Writ of Habeas Corpus to the United States District Court for the Northern District of Georgia, Atlanta Division, was filed on June 20, 2007 by Attorney Zell. A Petitioner's request for extension to file Amended Petition and Response to Respondent's Brief in Support of Answer - Response was filed on December 10, 2007. A 30-day extension was sought because of the record being so voluminous and to determine whether there were any other issues related to the habeas claim. The above extension was filed by Mr. Zell based on an agreement with Gunther after speaking with him over the phone on December 6, 2007. It was determined that there may be other potential issues and evidence to analyze. Original application that was filed on June 20, 2007 was done without any input from Gunther. A Notice of Termination of Counsel and Motion for Extension of Time to File Amended Petition and Brief is filed on January 9, 2008. An extension of an additional 6 months is requested to the District Court by Gunther (acting Pro Se). A motion for Appointment of Counsel is also filed on the same date by Gunther. Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help Search This Site   The following search will return one entry per page, and with the context of the first occurrence of the search item. Use your browser's find feature to see find the individual entries on the page. Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help How You Can Help You can make a donation to Gunther Fiek's defense by sending your contribution to: The National Center for Reason and Justice POB 191101 Roxbury MA 02119 With your donation, please include a note recommending a distribution to the Gunther Fiek Defense Fund and indicating whether this will be a tax-deductible donation. As well as acting as a fiscal sponsor for such funds, the NCRJ educates the public about prisoners and defendants like Gunther Fiek, who are falsely accused of crimes against children. The NCRJ's Board of Directors distributes money in its Prisoner Legal Defense Fund by balancing the desires of the donors with the needs of their grantees. If you are making a tax-deductible donation, the NCRJ's Board of Directors will take your wishes into serious consideration, but they cannot promise you to deposit all of it in Gunther Fiek's fund. If they did, the IRS would disallow your tax deduction for that donation. For more information on the tax laws governing such contributions, we recommend you consult your own accountant or attorney. You may also make your contributionby credit card . Write to Gunther Fiek. His address is: Gunther Fiek 1094511, E2 - 111 Telfair State Prison P. O. Box 549 Helena, GA 31037-0549 Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help 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.2666 1 ) 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) The Church and School Further Disseminated Accusations of Abuse Without Question or Investigation 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. Complainants Mixed and Mingled as Accusations Spread. 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) Influential Methods of Questioning Used by Parents, the School and State Investigators Produced the Accusations of Abuse. 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. S upra, 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 ( S ee , 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. B. STATEMENT OF JURISDICTION This Court, rather than the Georgia Supreme Court, has jurisdiction of this case on 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. S upra . 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: The Confrontation Clause "operates in two separate ways to restrict the range of admissible hearsay." "First, in conformance with the Framers? preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity." Second, "[a hearsay] statement is admissible only if it bears adequate ?indicia of reliability.? Reliability can be inferred without more in a case where the evidence [is] within a firmly rooted hearsay exception. In other cases the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." 20 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: Guarantees of trustworthiness must "be drawn from the totality of the circumstances that surround the making of the statement and that make the declarant particularly worthy of belief." Id , 497 U.S. at 820. 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 a. The Out-of-Court Statements Injected into the Trial Through the Hearsay Testimony of the Complainants? Parents Were Elicited in Circumstances Possessing No Guarantees of Trustworthiness and Were Thus Constitutionally Inadmissible. 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). b. The Out-of-Court Statements Injected into the Trial Through the Videotapes of the Interviews Are Inadmissible for Want of Indicia of Reliability. 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. c. All of the Hearsay Presented Against Mr. Fiek is Inadmissible Because it Was Not, as the Constitution Requires, Necessary. 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). E. The Exclusion of the Non-Accusers? Tapes and Interviews Violated Mr. Fiek?s Constitutional Right to Present a Defense and to Confrontation 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: Experience should teach us to be most on our guard to protect liberty when the Government?s purposes are beneficent...The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding. 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. Respectfully submitted, __________________________ MITCH DURHAM, ATTORNEY GEORGIA BAR NO. 235532 301 WASHINGTON AVENUE MARIETTA, GEORGIA (770) 427-0743 ________________________________ 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, c iting, Wright, supra. Contents PART ONE Statement of the Proceeding Below and Introduction Statement of Facts The Facilities Taekwondo Unifroms The Accusations The Trial The Genesis of the Accusations The Church and School Further Disseminated Accusations The School Was Also a Mouthpiece for the Accusations Complainants Mixed and Mingled Influential Methods of Questioning Parents' Use of Influence Parents and Other Adults Told the Complainants What to Say The State Interviews The Accusations Elicited by Parents, Investigators, and at Trial Stories That Changed The Complainants The Parents Videotapes of Interviews The State Experts The Scientific Research Mr. Fiek's Testimony PART TWO Enumeration of Errors Statement of Jurisdiction Standards of Review Preservation of Record Part Three: Argument Error #1: Hearsay A. Introduction Hearsay Admitted in Error Admissible Hearsay Must be Reliable The Hearsay Was Unreliable Out of Court Statements Not Trustworthy Out-of-Court Videotapes The Hearsay was Unnecessary Error #2: Exclusion of Non-Accusers Videos Content of Non-Accuser Interviews Non-Accuser Interviews Were Crucial The Right to a Defense and to Cross-Examine Exclusion was Unconstitutional Error #3: Experts Bolstered the Accusations The State Experts' Testimony Testimony Violated Prohibition on Bolstering Error #4: Insufficient Evidence Conclusion copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help Non-Accuser Interviews Alan Sherman #1 Interviews of Case# 00150890 Non-Accuser Interview: Alan Sherman # 1 By: Detective Monica Merrifield Date: 12/06/2000 DETECTIVE: OK. What is your name? Your full name so I can write it down ALAN SHERMAN: Alan Tucker DETECTIVE: Alan? Tucker? ALAN SHERMAN: T-U-C-K-E-R Q: You now need to tell me your last name A: S-H-E-R-M-A-N Q: And, Alan, how old are you? A: Seven and a half Q: Seven and a half? OK. A: Almost eight Q: Almost eight? When is your birthday? A: January 12th Q: January 12 th ? A: Yeah Q: Wow. So you are almost at that big eight, aren?t you? I see you are in uniform, where do you go to school? A: Hum, Eastside Christian School Q: Do you like it there? A: Uhu Q: Oh, good, A: I am going to two, hum, in January 9 th I am going home school Q: You are doing home school in January 9th A: Uhu Q: Well that sounds special, you get to sleep late? A: Uhu Q: Good for you. Well Alan, I?m going to draw a picture of you right here on my board. OK? Smile? Have a smile on it? OK. A: {shakes head yes} Q: This is Alan. Alan, who do you live with? A: Um, my mom, dad. And my brother Q: Your brother and that would be? A: Jerry Q: Jerry? Who I just saw outside, right? A: Yeah Q: That?s it? Do you have any pets? A: Yeah Q: What do you have? A: (unintelligible) Q: Ah..You know what, we have a lady in our office, she has a lot of those. Those are neat dogs? Huh, little white fluffy dogs. A: They?re so fluffy I like em (whispers something can?t be heard) Q: You do? A: He is very active Q: He is very active? He probably has to be with two little boys in the house. A: Uhu Q: OK. Well Alan, all I want to do today is talk to you to see if things are going OK, OK? A: Yeah Q: And the only rule that I have is that you just tell me the truth. OK? A: Ok Q: Do you know what the truth is? A: Yeah Q: What the truth is? A: Is tell something that is right, that did happen or will happen Q: OK. So you are safe in here, OK? A: Uhu Q: And nothing, you are not in any kind of trouble, OK? so you can tell me anything you want to tell me A: OK Q: That sounds good? A: Uhu Q: So as long as it?s the truth, right? A: Yeah Q: OK. I am going to show you two pictures, now, can you tell me what they are pictures of? A: a boy and a girl Q: a boy and a girl. And which one looks more like you? A: {points to a drawing} That one. Q: This one. OK. What I am going to ask you to do for me, I am going to point to some body parts A: OK Q: and I like you to give me the name of that, whatever name you use is fine, OK? A: OK Q: How about this? A: Hair Q: {points to the drawing} A: Hair Q: Tried to trick you and it didn?t work, did it? A: Um, Um (shakes head no) Q: {points to the drawing} A: Hum, beebies Q: beebies? OK {points to drawing} A: Hum, hand. Q: {points to the drawing} A: Bottom Q: OK, just whatever you call them A: Foot Q: {Points to the drawing} A: Wiener Q: Wiener. OK. {points to the drawing} A: mouth Q: Mouth. And let?s see if I can get you in this, what is that? A: Eyebrow Q: Eyebrow. OK. Do you know the difference between a good touch and a bad touch? A: Yes Q: Can you tell what a good touch is? A: Hum, you can touch any body part except the privates Q: OK. And when you tell me your privates A: Yes Q: Which ones should you not touch? A: That one Q: And that one A: and that one Q: so that would be a bad touch, right? A: Yes Q: Where on your body would it be ok to have a good touch? A: Hum, may be, hair? Q: Your hair, ok. A: Hum, may be your foot Q: Your foot. A: and your hand Q: and your hand. OK. Does any body give you good touches? A: Yes Q: Who gives you good touches? A: My mom Q: Mom A: Hum, dad Q: Dad A: Hum, and my cousins. Q; And your cousins? A: She is, Yeah, my older cousins. They are like nineteens Q: Nineteen A: Seventeen Q: Wow. So you have the big older cousin A: Yeah and I have a little one and a middle one. Q: What about bad touches? Does anybody ever given you a bad touch? A: Yes Q: Yes? A: Yes, my mom and dad Q: Your mom and dad? A: They spank me Q: Oh, Oh, OK, I am sure we all have those bad touches, haven?t we? A: Yeah Q: Have you ever have any other bad touches? Or touches that make you feel uncomfortable? A: No Q: No? No remember what I told you, you can tell me anything in here, so that if you remember something, anything you tell me here it is OK, OK? A: I already know, but may be when I was a little boy, I don?t? know, that was a long time ago Q: That was a long time ago. All right, you are so big now A: Uhu Q: Do you remember a little bit of something? A: I remember I was a baby, but that was nothing Q: You were a baby, Oh. Do you A: Nothing bad really happened Q: Do you have any activities at the school? Do you play baseball or hockey? A: I do Taekwondo Q: Taekwondo? A: Hum, I used to take baseball Q: Baseball? You don?t take it anymore? A: I may take soccer. I don?t know, because I go home school. Q: Oh A: I will go to home school for only 4 hours. Q: When you are play any of these sports or anything A: Yeah Q: Have you ever got any of those bad touches there? A: No Q: No? A: uh, uh {shakes head no} Q: So, who is are coaches? A: ----------------------- Q: You said you did baseball, who is the coach of your baseball team A: I don?t really remember Q: Don?t remember? A: No Q: Where did you play baseball? A: Hum, oh, I don?t remember either. Q: What about you said you take taekwondo? A: Yeah Q: Where did you take that at? A: At my school Q: Your school? Which is? A: Eastside Christian School Q: Eastside. Tell me a little bit about your coach A: Hum, well, his name is Mr. Gunther Q: ----------- A: Hum. He is very good at Taekwondo, he is a black belt third degree. Q: A black belt? That is impressive. Isn?t it? A: His master. He is black belt ninth degree. Q: Oh, mine, so you don?t want to mess with him, do you? A: Uhu {shakes head no} Q: Do you like taekwondo? A: Yes. I am a green belt Q: You are a green belt? What comes after green? A: Ah, a green stripe which is Purple Q: Neat. Do you feel comfortable at karate? A: Uhu {nodded head yes} Q: You like going? A: Uh huh Q: Nothing that ever happened that bothered you at karate? A: Uh uh (shakes head no) Q: Nothing ever that makes you feel uncomfortable? A: Aha (shakes head no) Q: And you?ve never been touched in your bottom ? or your privates? A: No Q: No? OK, well, you know, thank you for coming and talking to me. You did a good job. A: Thank you. (Whereupon, the video was concluded) Alan Sherman #2 Interviews of Case# 00150890 Non-Accuser Interview: Alan Sherman # 2 By: Detective Mary Finlayson Date: 12/06/2000 at 12:07 AM DETECTIVE: How are you doing? ALAN SHERMAN: Good DETECTIVE: Your name is Al? ALAN SHERMAN: Uh huh Q: All right. You know? what I want this, I?ll be right back. Do you want to seat in that chair right there? A: Uh hu ( Whereupon, the detective left the room, returned and the interview continued, as follows: ) Q: OK, Mr. Al, my name is Mary and I talk to boys and girls all the time A: Uh huh Q: That?s what I do up here. It?s talk to them about things, to make sure everything is OK. A: Yeah. Q: And I think you just talk to Ms. Monica, but I just want to talk to you a little bit, OK? A: Uh huh Q: Now, you and Ms. Monica have talked about the body parts A: Uh huh (nodded head yes) Q: So you talk to her about the hair, and the mouth and the beebies?And you call this part of the body the wiener? A: Uh huh Q: And you call this part of your body the wiener? A: Uh huh Q: And what do you do with that part of your body? A: you pee Q: You pee with it? OK. And then you said the foot, and here is the bottom A: Yeah Q: OK, and what is this here? A: Your back Q: OK. And you all talk about that. Did she talk to you about hugs? A: (shakes head no) Q: We like to ask boys and girls about hugs. Does anybody give you a hug that you like? A: Uh huh (nodded head yes) Q: Who gives you hugs that you like? A: Mom, dad, my brother Q: OK. Your mom, your dad, your brother? A: Uh huh, and my uncle Q: OK. Does anybody give you a hug that you don?t like? A: No Q: No? OK. But, Al, I am going to tell you that you are not in any kind of trouble, OK? Did Ms. Monica tell you that? A: Yeah Q: OK. And that you can talk to us about anything that you want to talk about, cause you are not in any trouble, and you are not getting anybody in trouble. A: OK Q: This is really important. What that while we are talking, that we promise to tell each other the truth. A: Uh huh (nodded head yes) Q: OK, did you talk to Ms. Monica about the truth and lie? A: Uh huh (nodded head yes) Q: OK. Because we just need to make sure that we know the truth about anything that may have happened or what .. what is going on. A: (no comment or answer) Q: Do you know why you came up here today? A: {shakes head no} Humm, uh uh. Q: You don?t know why you came up here today? A: Yes. They didn?t tell me. Q: They didn?t tell you? A: I kept asking them to. Q: You did? Well I don?t blame you. All right so, we talk about hugs, and how about kisses? Does anybody give you kisses that you like? A: Uh huh {nodded head yes} Q: Who give you kisses that you like? A: Everybody in my family, except for like..my dogs. Q: OK. Dog?s kinda sloppy kissers aren?t they? A: Yeah Q: OK. And, so how about, and does anybody give you kisses that you don?t like? A: Yeah, my dog. Q: Your dog A: Ah ha (nodded head yes) Q: Oh, yes, you said it, they are kind of sloppy. So how about, does anybody give you any touches in your body that you like? A: Uh huh Q: OK, so who gives you touches that you like? A: Probably everybody in my family Q: OK, so where in your body would be a touch that you like? A: Eak, in my hair Q: Ok A: Your foot Q: Ok A: Your hand. Q: Alright. So, does anybody give you any touches on your body that you don?t like? A: No Q: No? OK. Where would be a touch that you would not like if somebody touched you there? A: Um, that, that {pointing to drawings} Q: That, you mean, your wiener and your bottom? A: Yeah Q: Has anybody ever touched you before on your wiener? A: No, except me {Uh huh, laugh?s} Q: Except you? A: Yeah Q: OK. Has anybody ever touched you in your bottom before? A: Yes, my mom and dad Q: Mom and dad? A: Yeah Q: OK. All right. Ah, do you have a friend named Cory? A: Yes Q: OK. And how do you know Cory? A: Ah, we have been friends for a very long time. Q: Very long time? A: Aha {nodded head yes} Q: OK. And, ah, do you all do anything together? A: Uh huh {nodded head yes} Q: What kind of stuff do you do all together? A: Hum, we do taekwondo together. Hum, we spent the night a few days ago, or a few weeks ago. Hum, I go to his house play a lot, he comes over to my house to play a lot, that?s about it. Q: OK. So you all play together? Did you feel like you were about to cry just now? A: No Q: No? So you all take taekwondo together. And, did Ms. Monica talk to you about taekwondo? A: Yeah Q: About, what is your teacher?s name at taekwondo? A: Mr. Gunther Q: Mr. Gunther? How do you feel about Mr. Gunther? A: He is nice, and, yeah, I like him Q: Do you like him? A: Yeah Q: OK. Well, did you know that Cory came here earlier today and talked to me? A: {nodded head yes} Q: You did know? A: Uhu Q: And, did he tell you about anything that happened to him at taekwondo? A: No Q: He didn?t tell you that? A: uh uh Q; Well, when I was talking with him, he told me some things that happened at taekwondo that made him feel sad A: Yeah Q: and that made him feel uncomfortable A: Yeah Q: And he told me that the same things had happened to you A: {no answer} Q: And that?s why I wanted to talk to you today A; OK Q: OK? Because you are not in trouble, and Cory is not in trouble either A: Yeah Q: OK. But he has told us that some things have happened to you at taekwondo that happened to him A: What? Q: Some, some, that he has gotten some touches that he did not like on his body A: {shakes head no} I?ve never had it, never. Q: Ok. So no one has ever touches you anywhere in your body that you didn?t like? A: {shakes head no}. Nobody Q: OK. So if Cory said that somebody had touched you on your wiener, is that true or is that a lie? A: That is a lie Q: Is a lie? A: Yeah. I have never had anybody touch me there. Q: All right. What would you do if somebody? A: May be my dog {laughing} but ? maybe I was naked in the bathroom and he came in? Q: OK. So what would you do if somebody did touch you there on your wiener? A: Hum. I would either say that?s rude or I would tell my teacher and my mom Q: OK, have you ever told anybody that somebody has touched you there? A: {shakes head no} No Q: Ok. So you know that if anybody ever touches you in one of those places, that it is ok for you to tell A: Yes Q: And that you won?t be in any kind of trouble A: Yes Q: And even if somebody tells you not to tell A: Yeah Q: it is ok for you to tell A: Yeah Q: OK. So I just wanted to ask you, that?s why I brought you back in here, because Cory has told us that the same person that touched him A: Yeah Q: Ah, on an uncomfortable place A: Yeah Q: that that person had done the same thing to you A: Uh hu {shakes head no} Q: OK, so you say that is not true? A: That is not true Q: OK. All right, I thank you for coming in and talking to me, OK? A: OK Q: Alright. We will go back and talk to your mom. (Whereupon, the video was concluded) Jerry Sherman   Interviews of Case# 00150890 Non-Accuser Interview: Jerry Sherman By: Detective Monica Merrifield Date: 12/06/2000   DETECTIVE: You just want to take a sit, you can pick that chair or this chair. You want to sit on that one? OK. And your name is Jerry, is that short for anything? JERRY: mmmm ?. Xxxx DETECTIVE: Xxxx? OK. Well, my name is Monica, OK? And all I want to do is talk to you a little bit and see if everything is OK with you, OK? Let me spell your name real quick, can you spell it for me? JERRY: J-E-R-R-Y Q: K? A: E Q: Jerry. OK. And do you have a middle name? A: Reid Q: Reid, R-E-I-D? A: Aha Q: And your last name, can you spell your last name? A: S-H-E-R-M-A-N Q: You did that very well. How old are you Jerry? A: Six Q: Six. OK. Well, we?re just gonna talk a little bit, OK? And I don?t want you to be afraid. You are not in any kind of trouble. You have not done anything worng, OK? The only thing I ask is that you tell me the truth. Can you promise to do that? A: {nodded head yes} Q: Can you tell me what the truth is? A: {nodded head yes} Q: What is the truth? A: Telling things that you really did, don?t tell a story. Q: Right, don?t tell a story. So if I said that I was standing up right now, would I be lying? A: Yes Q: OK. Because what am I doing? A: You are sitting down Q: I am sitting down. OK. I am going to start off with just a little picture of your face, OK? Don?t laugh at my drawing. I put a smile? A: {nodded head yes} Q: This is Jerry. Jerry, who do you live with? A: My mom Q: Mom A: My dad Q: Your dad {drawing pictures}. Who are you forgetting? A: mmmm My brother Q: Your brother! Was that on purpose? A: Aha. I forgot Q: You forgot? Do you have a special name for your brother? A: Al Q: You just call him Al A: That is short for Alan Q: Short for Alan, just like Xxxx is short for Jerry? A: {nodded head yes} Q: OK, well, I want to talk to you about body parts for a minute, OK? I am going to show you two drawings and I ?. Can you tell me what these are drawings of? A: Girl and boy Q: A girl and a boy. And can you tell me which one looks more like you? A: {points at left drawing} Q: And that is a drawing of a what? A: Boy Q: A boy. And I want you to name some body parts for me. Can you do that? A: Aha {nodded head yes} Q: OK. And whatever name, special name you use for that, that is what I want you to tell me, OK? A: OK Q: I have not even pointed to it yet. You are ahead of me. A: {giggles} Q: What is this a picture of? A: mmmmm ? hair Q: Hair A: Arm Q: Arm. A; mmmmm Q: It is OK, just remember what I said, you can tell me anything in here, OK? A: mmm Q: Huh? A: mmm Q: You can tell me, what do you sit on? A: bottom Q: Your bottom. You can tell me anything in here, OK? Just whatever you want to tell me. What is this? A: Arm Q: Arm A: pipi Q: pipi A: belly button Q: belly button A: nose Q: nose A: weenie Q: Weenie. And this is a tough one. What is that? A: Eyebrow Q: An eyebrow. OK, Jerry. Can you tell me the difference between a good touch and a bad touch? A: {nodded head yes} Q: Can you tell me what a good touch is? A: {gets up, looking at drawing} mmmm, arm Q: On your arm? I will just put a g for good touch. {with marker on drawing} Where else would be a good touch> A: Hair Q: Hair? So what is a good touch? These are some of the parts that you can get a good touch, How does a good touch make you feel? A: mmmm ? good Q: Good? And who gives you good touches? A: mmmm Q: Can you tell me what kind of good touches you get? A: mmmm I don?t know. Q: You don?t know? Has mommy ever given you a touch that is good? A: Aha Q: She has, what has she done? A: Rubbed my leg Q: She rubbed your leg? OK. What else? A: Rubbed my head Q: Rubbed your head. OK. What other kind of touch would be good? A: mmmm {quiet} Q: OK. You want me to skip that, you want to go to a bad touch? A: {nodded head yes} Q: Where on here, on your drawing that you shown would be a bad touch? A: {points to drawing} Q: Right there {marks with pen}. Anywhere else? A: {points again} Q: {marks} Have you ever had a bad touch? A: {nodded head yes} Q: Can you tell me about it? A: mmm, my brother one time when he had his belt and he took off and he then spanked me Q: Your brother spanked you with his belt? A: {nodded head yes} Q: Have you had any other bad touches? A: {shakes head no} No. Q: No? A: {shakes head no} No. Q: You have never been touched in any of the bad parts of your body? A: {shakes head no} No?. only by my brother Q: Only by your brother? A: Every time he touches me {unintelligible}. After school he always takes of his belt and slaps me in the back Q: Ouch, that is not very nice, is it? A: Every day Q: Every day? You get a spanking from your brother every day? A: {nodded head yes} Q: What about anybody else? A: No Q: No? I know your brother plays baseball and karate, do you do any of that? A: mmm, I play karate Q: You play karate? Where do you play karate at? A: At MS. ? at Eastside Christian Q: At Eastside Christian School? Has anything ever happened while you played karate that made you feel uncomfortable? A: mmm ? I fell down when I was kicking Q: You fell down when you were kicking? Have you had any uncomfortable anything else? A: {shakes head no} Q: No? Are you thinking? A: {says nothing} Q: Are you make ? are you telling me the truth? A: {nodded head yes} Q: So you are telling me nobody has ever touched your bottom or your weenie? A: {shakes head no} Q: Nobody has? A: {shakes head no} Q: OK. It is OK to tell me if somebody has. Remember I told you, you are safe in here and you can tell me anything you want to tell me. You are not in any kind of trouble, OK? A: {nodded head yes} Q: So if something has happened, you can tell me. A: {says nothing} Q: Do you want to tell me anything? A: {shakes head no} Q: Are you OK? A: {nodded head yes} Q: What is wrong? A: Nothing Q: Nothing? Are you thinking about something? A: {nodded head yes} Q: What are you thinking about? Want to sit down and tell me, you are OK. A: I am thinking about anything, anybody touching me in my bad parts. Q: And? Can you remember anything about anybody touching you on your bad parts? A: {shakes head no} Q: OK. I thank you for trying. Do you want to sit there and think for a minute? A: {nodded head yes} Q: OK. Just remember you can tell me anything you want to tell me. You are not ? you have not done anything wrong, OK? A: {nodded head yes} Q: And if you have been touched, it is not your fault, OK? And you are not in any kind of trouble. Remember, all I want you to do is tell me the truth, OK? A: OK Q: OK. {quiet for a while} Do you want to draw for a minute while you are thinking? Will that help you? A: {nodded head yes} Q: Huh? You can color. A: {receives marker} Q: You can color. Want to color something up here? {signaling at board) A: I can draw a body Q: You can draw a body? Draw me a body. That is good. That is a leg, isn?t it? A: {nodded head yes} Q: Whose body are you drawing, Jerry? A: My brother?s Q: Your brother?s? What is that? A: His shirt Q: His shirt, OK. Now let?s get back to my drawing, OK? Can you remember? A: No Q: No? Let me ask you this, has anybody ever shown you their private parts? A: mmmm Yeah Q: Yes? A: My brother Q: Your brother? Anybody else? A: My friends Q: Your friends? A: In taekwondo Q: In taekwondo? A: Because you have to get dressed. Q: Oh! You have to get dressed in taekwondo? A: Aha Q: Who gets dressed??. Who is in there with you when you are getting dressed? A: My friend Case, my friend Joshua, my friend Jerry, my friend Johnny and Phillip and that?s Q: Oh, so all of you get dressed in one big room? A: Aha Q: Do you ? so ? I don?t know anything about karate, so what do you do, you wear your clothes there and you change into your uniform? A: Aha Q: What, what, what do you have to, what kind of special uniform do you wear? What is it? A: The taekwondo uniform looks like this {drawing on board} Q: So you have to put on pants? A: Aha Q: And you put on a shirt? And you put on a belt. Do you wear anything underneath your pants? A: {shakes head no} Q: That is a very good drawing. So all of you ? Help me for a minute. All of you come the Christian, the ? is it CAC? A: Aha Q: And all of you go where to change? A: Bathroom Q: the bathroom? A: {says nothing, very distracted, looking for another marker} Q: It is night here, sweetie. All of you go to the bathroom and change. And so do you leave anything under your uniforms? A: {shakes head no} Q: Nothing? A: {shakes head no} Q: Underwear? A: {nodded head yes} Q: You have underwear on, right, Well, does mommy and daddy go with you to the bathroom to change? A: No Q: No? A: We go by ourselves Q: You go by yourselves. All you little boys in one room? A: Aha Q: Oh, my. There?s no grown ups. A: No Q: OK. Well, who is your karate ? do you have ? A: I have a teacher Q: You have a teacher A: Teaching me ,,, ummm ? his name is Mr. Gunther Q: Mr. Gunther? What do you think about Mr. Gunther? A: Aha, he is a black belt Q: He is a black belt? That is good, isn?t it? A: {nodded head yes}. He is the highest rank. Q: The highest rank? A: Actually, Master Lennix is the highest rank Q: Mr. Lennix, and that would be ? A: Master Q: Master. Oh, my. Well, so, Mr. Gunther teaches you karate A: Aha Q: Can you think of anything else Jerry that you want to tell me? A: {shakes head no} Q: OK. Remember what I said about the truth, OK? A: {nodded head yes} Q: And you can tell me anything. I am just going to ask you one more time, OK? Have you ever had a bad touch right here? {pointing at drawing} A: {shakes head no} Q: What about right here? {pointing at drawing} A: {shakes head no} Q: And have you ever seen anybody?s, except for the little boys in your changing room? A: No Q: No. OK. Well, I thank you very much for coming to talk to me. OK. Where are you going for the rest of the day? A: mmm my school Q: Your school? OK. Ready? A: {nodded head yes} (Whereupon, the video was concluded)     Steve Hiller Interviews of Case# 00150890 Non-Accuser Interview: Steve Hiller By: Detective Mary Finlayson Date: 12/06/2000 DETECTIVE: Hey, Steve, how are you doing? STEVE: Fine DETECTIVE: Would you come in? DETECTIVE: All right. Do you want to have a seat right here? STEVE: Are we going to get to draw on this? Q: Well, not yet, we are going to talk a little bit. How about that? Do you know why you came up here today? A: Yes Q: Why did you come today? A: Hum. I don?t remember Q: OK. All right. Well. Let me tell you what. You told me your name was Steve A: S-T-E-V-E Q: S-T-E-V-E. And how old are you? A: Eight years old Q: You are eight A: I turn nine on February 26 Q: OK. So you are almost nine. OK. Well, Steve, my name is Mary, OK? And I just want to talk to you a little bit today about some things, because we have A: It?s the sixth? Q: Uh hu. I think so. Um, let me ask you. Who do you live with at home? A: Mom and dad Q: Your mom and dad A: And sister and dog Q: Mom, dad (drawing) and your sister. How old is your sister? A: She is ten Q: And what is her name? A: Bailey Q: Bailey A: Do you want to know how old they are? Q: No. That?s OK. They may not want me to know how old they are. A: Oh, well Q: So, you said, mom, dad, your sister, and you, and then you have a dog? A: My sister wanted to call him Champ Q: Wow. Champ? OK. And, OK. So, do you go to school? A: Yes Q: What school do you go to? A: East Side Christian Q: East Side Christian? OK. All right, and what, ah, what is your teacher?s name there? A: Ms. Harrison Q: Ms. Harrison? A: Third grade Q: Third grade, all right. A: Yeah, she said she wanted second grade and third. Q: So how do you like it there? A: It?s good Q: It?s good? OK. Well I?m glad. Well, Steve, while we are going to talk in here today, we have just a few rules, while we?re talking. One of them A: {nodded head yes). No being silly? Q: Huh? A: No being silly? Q: It?s OK to be silly (laughs). One of the rules is that we promise to tell each other the truth, and that we won?t tell any lies. Do you know what it means to tell the truth? A: Yes Q: What does that mean? A: Like, if they, if somebody ask, like, Ah, is, if you, Gosh. It?s hard to be a smart kid. Q: OK. If I say your name is, Ah, Alan, is that true or is that a lie? A: That is a lie Q: OK. Let?s say this paper here is white, is that truth or is that a lie? A: It?s truth, except before you write on it Q: OK. All right. So you know the difference. Can you promise that you are going only to tell me the truth in here today? A: Sure {puts right hand on his heart, and rises his left hand) Q: OK. All right (he laughs). And another rule is that, it is OK for you to talk to me about anything, OK? A: Even secrets? Q: Even secrets, or things that may be embarrassing, but you are not in trouble and you are not going to be in trouble and anything that you want to talk about we can talk about, OK? A: OK Q: Now, one thing I want to go over with you was about body safety. A: Body safety Q: Yeah. And we are going to talk a little about it. Now (puts 2 drawings on the board) would you tell me which one is a boy and which one is a girl? A: I know that?s a boy (points to one of the drawings). (then points to the other one and touches his head and makes an expression) Ohhhh, a girl Q: All right, Steve, we are going to talk about, OK, we are going to talk about your body A: My body Q: And see if you can tell me. What is those called here? (points to the drawing) A: Those or that. Eyes Q: Eyes? OK. And what is this here? (points to the drawing) A: Nose Q: Nose. (points to the drawing) A: Mouth Q: OK. What is this? (points to the drawing) A: Ears Q: (points to the drawing) A: Hair Q: OK. And what is this? A: Arm Q: Ok and what are these called? A: Um, that?s right around your chest. Q: What do you call this? A: Belly button Q: OK. And what do you call this here? A: Legs Q: And what about this? A: Head Q: And this? A: Foot Q: OK, what do you call this? A: Boy, I can?t say that. Q: You can. Remember? A: Penis Q: Ok, all right, and when you turn Steve over, what do you call this here? A: Back or spinal cord if it?s inside. Q: And what about this? A: Butt. B-U-T-T Q: OK. All right. Let me ask you, Steve, does any body give you hugs that you like? A: Hum, uh huh. Q: Who gives you hugs that you like? A: My mom, my dad, my grandma, my grandpa, my great grandma, my great grandpa you know, family. Q: Family? OK. Does anybody give you hugs that you don?t like? A: Hum. (shrug I don?t know) Q: You don?t know? A: No Q: No. So nobody gives you hugs that you don?t like? A: No Q: OK. Does anybody give you any kisses that you like? A: My family Q: Your family does? A: (nodded head yes) Q: OK. Does anybody give you kisses that you don?t like? A: No Q: No? OK. A: If you are talking about out of the family, no. Q: Out of the family? A: No Q: OK. Does anybody in your family give you kisses that you don?t like? A: Hum is that ?. If there was I?d say say yes, if there wasn?t, I?d say no. Right? Q: Right. You just tell the truth. Is there somebody in your family or out of your family give you kisses you don?t like? Then you just tell me who that was that gives you kisses that you don?t like A: OK Q: Did anybody give you kisses you don?t like? A: The only time I run away is when my cousin does it. Q: Your cousin? A: The only time I run away is when my cousin does. It?s a girl and she always chases me around. Q: Your cousin is a girl and chases you? A: Because we barely get to ever see each other. Q: How old is she? A: Hum, eight Q: Eight? OK. So is she the only one that gives you kisses you don?t like? A: I like them, except sometimes I just play with her. Q: OK. That?s OK. So how about, let me ask you this. Does anybody give you touches in your body that you like? A: I don?t know. (mumbles something) (both in silence looking to each other for about 20 seconds) Oh there?s deer there (pointing at wall) Q: Yeah, there?s fish. Does anybody ever give you touches on your body that you like? A: Would that be like hugs? Q: Well, it could be, but we already talked about hugs A: Or tickle Q: Tickles can be touches. Do anybody give you touches on your body that you like? A: The only time I like it is when my sister tickles me. Q: She tickles you? A: She tickles and like when my mom scratches my back. That?s all. Q: Ok. All right. How about does anybody give you touches that you don?t like? A: {thinking} (about 20 seconds in silence looking to each other}{no answer} Q: It is OK to talk about anything you want to in here. You are not in trouble. We just promised to tell each other the truth, OK? A: (mumbles something) and all that. Q: So is there anybody now or in the past that gives you any kind of touches that you don?t like? A: This is getting very annoying. Q: OK. Why is it getting annoying? A: No this. Q: Why is it annoying? A: I don?t know. I just keep getting this staring feeling at it. Q: Yeah. Well, let me ask you this. Does anybody give you any touches in your body that you don?t like? A: (mumbles again) back, Um? Q: Is there somebody that has touched you somewhere that you don?t like? It is OK to tell me A: Well, some people have but I really didn?t care because I was much younger Q: Well, OK, so you were much younger? So who touched you when you were much younger? A: I?m trying to think. That?s the thing, I don?t actually know if it happened. It?s one of those things that you think might of, but you are not sure. Q: That?s ok. Who do you think may have touched you when you were much younger? A: That?s what I am trying to think of. Q: OK A: (mumbles again) Q: Huh? A: (mumbles again) Q: You know what? Steve. I know this is hard to talk about, OK. But you are not in trouble, OK? A: Had anybody else acted like this? Kind of? Q: Yes, lots of people act a little nervous. But you know, I talk to boys and girls every day about stuff like this. And some people come and talk about things that make them feel sad or uncomfortable. And I know it is not easy to talk about. But that is what I do every day, and I am not going to be upset with you or mad at you. And I am not going to laugh on you or feel funny about anything that you tell me, OK? I just need to make sure that I know the truth if something happens to you. So that we can work it out, OK? A: Unless I?m trying to be funny, can we do it? Q: Yeah. You are trying to be funny I?ll laugh, OK? (laughs) Now it is really important that we talk about this, cause you don?t have to keep talking about it when you leave here. But for today it?s important for me to know if something?s happened. A: Now, I?ve done this at my house. Some of these questions and like, I?m not even familiar with. Q: Uh huh. Ok well let me ask, we had talked about, and I said has anybody touched Steve? Has anybody touched on your body anywhere that you did not like it? A: I don?t think so. Q: You don?t think so? Are you afraid to talk about it? A: No. Q: No. A: I knew this, I knew there was gonna be people talking about it. Q: Why? Why did you know that? A: Because my mom and dad where just asking me some of questions when I got home from school. Q: Uh huh. A: Cause I?d found out something about it at school. Q: Uh huh. A: Somebody in the class room (mumbles) Q: What did you find out at school? A: Somebody might be put in jail for something. Q: No. Who told you that? A: Um, somebody in my class. Two boys in my class. I think one found out from another but I?m not sure which way around it is. Q: Ok. Well you don?t have to worry about somebody going to jail ok? A: Ok Q: Cause you are not sending anybody to jail. It?s not anything to do with you putting anybody in jail. A: That?s just what I thought about, just what I heard about in school. Q: That?s ok. Who did you hear was going to jail? What person? A: Might? Q: Uh huh. A: Where did I get this? I don?t know. Q: Who did you hear? What person did you hear might be going to jail? A: My Taekwondo teacher Q: And what?s his name? A: Mr. Gunther Q: Mr. Gunther? A: nods. Q: Ok. How long have you been taking Taekwondo? A: About four years now Q: About four years A: Actually about three cause I quit for a year. Cause I took golf because it was getting boring to me cause we would do, since we were having a lot of test?s before, we would have to stand in front, we would have to do stuff for forums and stuff and it would get boring to me, I just didn?t do it for a year I did gymnastics and then I started back and the only reason I did gymnastics is because it made me a lot than Taekwondo. Q: Ok. Well, um, so how did you like taking Taekwondo with Mr. Gunther? A: It was fun. Q: Do you know why people said he was going to go to jail? A: I didn?t find out till I got to my house because they weren?t allowed to tell. They were just allowed to tell that he might have to go to jail or something. Um, touching some kids in his Taekwondo class inappropriately. Q: Do you know where he touched them? A: (points to picture and mumbles) Q: Ok, so you heard that he had touched some kids here (point) and on the back. And did you know that some children had said that he did that? A: (nods) uh huh. Q: And that was while they were in his Taekwondo class. A: What? Q: While they were taking Taekwondo? A: Oh, I thought you were meaning that was the only reason they were taking Taekwondo. Q: Oh no. That?s where it happened at. So you knew about that, ok? A: I knew about it from about like, one minute, two minutes, well one minute after I got home. Two minutes after I got home. Q: So your mom and dad ask you about it? A: Actually my mom did. And when my dad came home my dad found about it. Found out about it. I don?t know if he found out about it, my mom called him, or? Q: Ok, well you know your mom is just really concerned because she remembers a while back that you got to where you didn?t want to go back to Taekwondo? And you had been upset and you did not want to go back. A: Cause it was getting really boring. Q: Was getting boring. Ok. So you say knew that people said that Mr. Gunther had touched some boys in their.. um? A: Actually nobody else has talked me about it. I?ve just heard about it. I just heard about it as soon as I got, like a couple of minutes after I got home. Q: Well, Steve let me ask you. Did Mr. Gunther ever do anything to you? A: On the front or the back, he just like (pats his butt) patted right here. Q: He patted you where? A: Well, this is what my mom said isn?t really bad. Because a lot of people do it. Like football players do it and stuff. Pat each other on the back. Q: Uh huh. Ok. Has he ever touched you on the front? A: No. Not that I can remember cause I?ve already been thinking about it since yesterday and I can?t remember anything. Q: So you don?t remember him ever touching you under your clothes or over your clothes? A: No. Well if you are talking about pushing in the side of my shirt because it was hanging out and I didn?t recognize, no. Cause it was just hanging out and um my belt, so you just have to push it down a little. You just barely, he didn?t even put his hand down there, just pushed it down a little. Q: Did you ever go to his house? A: No Q: Did you ever go on a field trip with him? A: No Q: Where you ever alone with Mr. Gunther? A: No, I was alone with Mr. Gunther like with two other kids because he so many boxes for sparring night that we had to look for, that?s the only time right inside the closet. Like right on the side. Q: Did anything ever happen that made you feel uncomfortable? A: No, not that I can remember. Q: Do you think that maybe it makes you too sad to talk about it? A: No Q: No. A: This is actually what we were doing at my house. My mom said to talk about it. Q: Ok, would you tell someone if something had happened? A: Yes I would have. Q: All right. So no one has ever touched in place here (points to crotch) or here (points to butt) A: Well, somebody has patted me like (like this) because a lot of people do that. Q: Ok, well, besides that. Has anybody else done anything else? A: No Q: Ok, so is there anything you want to tell about that happened or anything you need to talk about? A: No Q: No. Ok, well if you think of anything or remember something, you can talk to your mom about it and then she can.. A: I know, she?s already told me. Q: Ok, all right. Do you have any questions? A: No Q: Ok, well thanks for coming in and talking to me today Steve. A: Already had one other question. Q: You did? What was that? A: That I thought might have been answered, but it wasn?t there. I just thought it might have. Q: What? A: Have you seen him do it to anybody? I think I did like once. Q: What do you think you saw once? A: Just patting, you know. Q: Like that ( like he showed earlier in a sports way). OK, but you haven?t seen anything else? A: Not that I can really remember. ok Q: OK, well thanks for coming in. (Whereupon, the video was concluded)     Ken Chapin Interviews of Case# 00150890 Non-Accuser Interview: Ken Chapin By: Detective Streefkerk Date: 12/13/2000 Q: So you say that if anybody ever did give you a touch that you didn?t like you would tell? A: Aha Q: OK. And when you tell me that nobody ever has done that, are you being honest with me A: Yes, I am Q: OK, alrighty, hold on one second Ken. A: But it has happened to one of my friends Q: Who?s that? A: Parker Q: Parker? A: Parker Jackson Q: And how do you know that? A: Because he told me Q: What did he tell you? A: He told me that he was in my taekwondo class but I didn?t come, I hurt my finger and, hum, he did it that day Q: He did it? Who is he? A: Hum, Mr. Gunther Q: And did you say that or that something that somebody just told you? A: Hum, Parker just told me Q: Where did he say it happened at? A: Hum, I think he said it happened in taekwondo class in the dark room. Q: OK, did he tell you anything else? A: {shakes head no} Q: Did he tell you about anybody else getting touched? A: {shakes head no} Q: He just told you that he did A: Aha Q: OK. Alright, hold on one second, Ken, I?ll be right back with you.     Larry Kramdem Interviews of Case# 00150890 Non-Accuser Interview: Larry Kramdem By: Detective Monica Merrifield Date: 12/07/2000 DETECTIVE: And you can pick which side of the board you want sit. You can sit on the left or the right side. LARRY KRAMDEM: Actually this side DETECTIVE: Actually that side? Ok. Ok, and you?re Larry, right? Well Larry, my name is Monica Ok? LARRY KRAMDEM: Mm hmm. Q: And I want to let you know that you are safe in here, ok. Ok, it?s a nice room in here isn?t it? A: What is that over there? Q: You know what I think that is? I think that?s when the lights go off and the power, that might be a safety light. A: Oh Q: Because it?s really dark, there?s no windows in here. So what I want you to do though Ok, I want you to tell me whatever you?re gonna tell me. A: That?s a window. Q: That?s for decoration. A: Oh Q: Because we are on the inside of the building, remember right? A: Right. Q: That?s inside. It?s deck, see it?s decoration. A: Oh they built a mirror. Q: Yeah so, you can tell me whatever you want to in here, ok. A: Ok Q: You are not in any kind of trouble. You are not going to get anybody in any kind of trouble, ok. A: I know. Q: I know you know. I?m just telling you to make sure that you remember. And the only thing that I ask is that you tell me the truth, ok? A: Ok Q: Promise? A: (nodded head yes) Q: Know what the truth is? A: Yes Q: Can you tell me? Tell me what the truth is. What does it mean to tell the truth? A: Uh, don?t lie. Q: Don?t lie. So if I am telling you right now that this piece of paper is green. What am I doing to you? A: Lying Q: Lying, ok. Ok, Larry, how do you spell your name? A: L-A-R-R-Y Q: How do you spell your last name? A: K-R-A-M-D-E-M Q: Ok, my marker is not doing very well. How old are you Larry? A: Seven Q: Seven. Where do you go to school? A: Murdoch Elementary. Q: You like it? A: (nodded head yes) Q: So are you in the second grade? A: No Q: No, first grade? A: uh huh. Q: Who?s your teacher? A: Ms. (unintelligible) Q: You like her? Is she Nice? A: (nodded head yes) Q: Good, I?m glad. Obviously since you had a good day at school, your still smiling after school, that?s a good one. A: (nodded head yes) Q: This is you, this is Larry. Who do you live with Larry? A: My mom. Q: Your mom A: My two brothers Q: Two brothers and what are their names? A: Willy and Oliverio Q: Anybody else live at your house? A: Umm, no. Q: No. A: If they come to spend the night Q: So if somebody comes to spend the night. So at Larry? house there?s mommy, Willy, and Oliverio. A: And daddy. Q: And Daddy. You forgot your daddy? A: Uh huh. Q: And Dad. Any pets? A: Umm No. Well back at my old house. Q: At your old house? A: We used to live in Florida. Q: You used to live in Florida? Did you have alligators as pets? A: No Q: I?m just checking that?s were alligator?s are from. A: I know. Q: You know. Well Larry, what I want to talk to you today about is body safety. Ok? Remember what I said? Tell me anything. Don?t be afraid, don?t be embarrassed. Ok? A: Ok. Q: Just be truthful. I?m going to show you two drawings and I want you to tell me what these are drawings of. A: People Q: People A: Kids Q: Can you be more specific than that? What kind of kids? A: Naked big kids. Q: Well yeah, but what is this a picture of? A: Front of a boy Q: And what is this A: Front of a girl and back of a girl Q: And which one looks more like you. A: (points) Q: And that would be a picture of? A: Girl Q: This? A: No that Q: Ok, which one looks more like you? The picture of the what? A: The boy Q: The boy. Ok. Ok, well Larry, I?m going to point to some body parts, Ok? A: Ok Q: And when I point to them I want you to tell me what you call them. Just whatever you call them, ok? A: Ok, head, arms Q: Arms. You don?t have to be embarrassed with me. I?ve heard it all, I promise you. A: Bottom. Q: Bottom, just whatever you call it ok? Remember we can tell each other everything in here. A: Eye, I don?t know what that?s called Q: You don?t know what that?s called? A: Hair, belly button, leg, I don?t know. Q: Whatever you call it. A: Private part. Q: Ok. And? A: Butt. Q: Ok, Larry I want to ask you. Do you get hugs that you like? A: (nodded head yes) Q: Who gives you hugs that you like? A: Mom and Dad and my brothers. Q: Mom and dad and your brothers. You ever get any hugs that you don?t like? A: No Q: No. What about kisses that you like? A: My whole family Q: Your whole family. Have you ever gotten any kisses that you don?t like? A: Mm, no. Q: No. What about touches? Where on your body would you think it would make you feel uncomfortable if somebody touched you? Can you show me here? Where would it be uncomfortable if somebody touched? Can you point with my pen? Would that make you feel better? A: (points at drawing) Q: On your private? Ok. You don?t have to be shy in here. You can tell me anything in here, ok? And believe you won?t be getting anybody in trouble and you are not in any kind of trouble, ok? Have you ever had a touch on your body that made you feel uncomfortable? A: Mmm, hrrrm. I don?t remember a time that I ever been touched right. Q: You don?t know how many times? So. A: I don?t know. Q: Huh? Have you ever been touched anywhere that made you feel uncomfortable? A: No Q: No? You sure? A: (nodded head yes) Q: Can I tell you something? A friend of yours was in here and he told me something that had happened, and I wanted to make you that you are ok. And. A: A friend of mine? Q: It?s ok to tell me. If there?s somebody that?s touched and made you feel uncomfortable. A: What kind of friend? Q: Oh. Do you play any sports? A: Baseball Q: Baseball. A: Uh huh. Q: Do you do anything else? A: I played soccer one time. Q: Ok, do you take Karate? A: I used to, but I quitted. I stopped on yellow belt. Q: You stopped on yellow belt. Did anything ever happen there that made you feel uncomfortable? A: No Q: Are you sure you are being truthful with me? A: Yes Q: Ok, because I?m just telling because some of your friends been in here and tell things have happened. So I just want to make sure they haven?t happened to you. A: Ok Q: Have you seen anything that you didn?t think was right? Have you seen anybody get touched where they shouldn?t get touched? A: No, I saw a kid say bad words. Q: You saw other kids saying bad words. Did you ever see anybody touch anybody?s private parts? A: No. Q: Did anybody ever touch your private parts? A: No. Honest. Q: Ok, well I?m just worried because somebody told that you would know. And I?m just making sure you?re being truthful with me. A: I am. Q: So you?ve never seen anybody at Karate being touched in their privates? A: Hmm, yes. Q: You did. A: You never asked me that. Q: Ok, Who touched somebody in their privates? A: Our teacher. Q: What?s his name? A: Mr. Gunther. Q: Mr. Gunther. And what did you see? A: Jimmy told me, my mom asked me, if I, if Jimmy talked to me about it. And he said, he, Mr. Gunther touched him in the private parts. Q: Did you ever see Mr. Gunther touch him in his private parts? A: No. Q: Did you ever get touched in your private parts? It?s ok to tell. A: No Q: Do you know where everybody got touched at? Where they where? A: (points down) Q: Do you know what room they were in? A: It?s in the, uh, in the room, mirrors, with the mirrors. Q: And nothing ever happened to you in there? A: (shakes head no) Q: Who ties your belt? A: Sometimes Mr. Gunther does. But now I quit Q: Why did you quit? A: Because Mr. Gunther doesn?t teach there anymore. Q: Did you ever get touched where it bothered you or it was uncomfortable? On the outside of your clothing? On the inside of your clothing? A: No Q: Ok, well that?s what I wanted to know. I wanted to make you were ok, ok? A: Ok Q: Have you been truthful with me? A: (nodded head yes) Q: You sure? Is there anything you want to tell? A: (nodded head yes) Q: Ok. A: What?s in here? Q: Probably some Magic Markers. A: (kid plays in the back ground) Q: Ok. (Whereupon, the video was concluded)   Tommy Jenks Interviews of Case# 00150890 Non-Accuser Interview: Tommy Jenks By: Detective Whittaker Date: 12/08/2000 DETECTIVE: The following interview is between detective RA Whittaker and Tommy Jenks. Today?s date is 12/08/2000, time is 11:02 AM. We are at the Crimes Against Children?s Office at 2221 Austell Rd. Marietta Ga. I?ll be leaving the room at this time to go get Tommy. TOMMY JENKS: (Not in room yet) DETECTIVE: Now this room here is a little small and some of the chairs are a little small, but we?ll have to make do. TOMMY JENKS: (laughs) Q: I figured if I can sit in one, have a seat right there, if I can sit in one of these little bitty chairs as big as I am, you can sit in one of them too. A: (laughs) Q: Tommy my name is Rick. Ok, like Ms. Kathy told you my name is Rick And I just want to ask you a few questions. A: Uh huh. Q: Uh, your name is Tommy? How do you spell that? A: T-O-M-M-Y. Q: T-O-M-M-Y. And your last name? A: Jenks Q: Jenks. How old are you Tommy? A: Twelve Q: Twelve years old? Ok, uh, where do you go to school? A: Eastside Christian. Q: Eastside Christian. Do you know, uh, where that is located at? A: Lower Roswell Q: Roswell Rd. A: Uh huh. Q: Uh, where do you live at? A: Mmm, What do you mean by that? Like? Q: Uh, where do you live? A: Pine Valley. {Name changed] Q: Pine Valley. A: Marietta Q: Marietta? A: (unintelligible), I mean, I just went blank. 999 Delk Rd. Q: 99?? A: 999 Delk Rd Q: 999 Delk? A: Like Delk. Q: D-E-L-K rd? Ok, that?s in Marietta? A: Yes Q: Who do you live there with? A: My Parents. Q: You?re Parents? What?s your mom?s name? A: Um, Rea. Rea Q: Rea? What about your dad? A: Albert. Q: Albert. Ok, and your last name is Jenks also? A: Mm hmm. Q: Do you have any brother?s or sisters? A: Umm, John, Katie, and Christine. Q: John, Katie, and Christine. How old is John? A: Ten Q: What about Katie? A: Ummm, I think nine. Q: Nine? What about Christine? A: Fifteen. Q: Fifteen, ok. Uh, do you like going to Eastside? Is it Eastside Christian School? A: Uh huh Q: You like going there? A: uh huh. Q: How long you been going there? A: Um, I think since 16 months. Q: 16 months? What grade are you in now? A: Sixth Q: Sixth Grade. So you like going there? Good school? A: uh huh Q: You get good grades? A: Yeah Q: Yeah A: And mostly usually, I think I?m a straight A student. I think that?s why. Q: That?s good, that?s great. Uh, what, what do you like to do at school? What?s your favorite thing to do there? A: Well, it used to be going outside but not anymore because we never get to do it. So, it?s probably just the quick break when we get to outside for like 5 minutes and we can talk and do whatever. Q: Yeah A: Yeah Q: Ok. Uh, any kind of sports or anything? A: I?m on the basketball team. Q: You?re on the basketball team. They have a basketball team there at school? A: They have a lot of different sports. But I only did basketball. Q: You only did basketball? A: Yes, that?s my only sport. Q: Yeah A: Well, because they don?t have baseball. It?s another sport that I do. Q: So you like baseball? A: Uh huh. Q: What kinda? what all kinda sports do they have? A: Um, they have soccer, basketball, they have golf, they have, umm, track. Q: Track. A: And I think that?s about all. Q: That it? A: But then there?s some extra stuff that I don?t think goes with the school. Q: What?s that? A: Like Taekwondo, Ballet, they all go with Eastside stuff. I don?t really know, that?s like after school stuff. Q: After school? A: Yeah. Q: Ok, So they don?t teach that during school or P.E or anything? A: No. Sometimes they do stuff, like stuff from it, but it?s not really teaching you. Q: OK. You said they teach it after school, is it taught by teachers? Or? A: Yeah. Q: Who teaches the Ballet? A: I don?t know. Q: You don?t know? A: No. Q: What about, you said, Taekwondo? A: Yeah Q: Who teaches that? A: Gunther. Q: Gunther? A: Fiek. Q: Fiek A: The one? Q: What one? A: The one that?s in jail right now. Q: The one in jail right now. What do you know about that? A: Yeah, nothing, not really. Q: Uh, well you brought up Gunther. How well do you know him? A: Um, like 5 or 6 years. Q: About 5 or 6 years. How do you know him? A: Um, well, I started Taekwondo, and Randy? he was our first instructor guy, and he said he was going to teach, but Gunther said he did something wrong and the Church made him go away. So, he had to leave and Gunther took over and Gunther?s been teaching for six years. Q: Yeah. But, you said Randy, do you know what Randy?s last name is? A: No, he?s been gone for six years. Q: Ok, so he was the first teacher? A: Yeah, he was only there for about a month. Q: About a month. And you said he did something wrong? A: I think. That?s what?Cause he said he was going to help build churches or something this other country. But Gunther said that wasn?t true. He said that he did something wrong, they were just telling us so he didn?t have to tell us the real reason. Q: Do you know why you are here today? A: No Q: Well let me ask you something. Uh, do you know the difference between a good touch and bad touch. A: Yeah Q: Yeah. You probably went over that in school? A: Touch? What do you mean by touch? Q: Any kind of touch. A: Yeah. Q: Touch that makes you feels bad or a touch that makes you feel good. A: Yeah Q: Do you know what uncomfortable means? A: Yes Q: So, do you know the difference between a good touch and bad touch. A good touch is something, a touch that you like. A bad touch is something don?t like, hurts you, or makes you feel uncomfortable A: (nodded head yes) Q: Ok, Uh, Have you or can you give me an example of a good touch. A: Not really, I don?t really understand what you mean by a good touch? touch. Q: Well? A: Well, you mean somebody touching? Q: Yeah, say your mom comes up and gives you a hug. A: Yeah Q: Would you consider that a good touch or a bad touch? A: Good touch. Q: What about uh, your dad, if you dad came up and gave you a hug or a kiss on the head? Would that be a good touch or a bad touch? A: Yes, good touch. Q: What if your brother came up and kicked you in the knee? A: Bad touch. Q: Bad touch. A: Yeah. Q: Wouldn?t make you feel good would it? A: No. Q: What, can you think of any other touches that would be bad? A: Umm Q: Or would make you feel uncomfortable? A: Somebody else touching something they shouldn?t, like? Q: Like? A: Like, umm, privates and stuff. Stuff like that. Q: Ok, anything else? A: Well, somebody came up and punched me, I wouldn?t like that. Q: (laughs) I don?t like it when people do that to me either. A: I don?t like it people touching my face like that (makes expression). Q: That?s a grandma thing. Right there, they come up and pinch ya. They?re check pinchers. A: I don?t like that. Q: My Grandma used to do that to me all the time " You?re such a cute little boy". A: Mine still does. Q: My grandmother died here a long time ago so, so she don?t that to anymore. A: So did mine like, but one grandmother still alive but the other one and he got re-married. Q: That?s good, sometimes you have to that. Uh, what we are talking about is good touch and bad touch. Some touches make feel good, some touches make you feel uncomfortable. Have you ever had a touch that made you feel good? A: Yeah Q: Yeah, like what? A: A hug. Q: A Hug? A: Yeah Q: Ok. From mom/dad? A: Dad Q: Yeah. What about touches that make you feel sad? Or made you feel uncomfortable? A: Well, a lot from sisters and brothers. And.. Q: What kind of touches from your sisters and brothers? A: Just like hitting and stuff. Q: Hitting you? A: Yeah and that?s really it. Q: That?s really it? A: Yeah, nothing like what?s going on right now? Q: Nothing likes what?s going on right now? A: Hmm mm. Q: What?s going on right now? You seem to know something. A: Yeah, Umm Q: What do you know? A: He?s been accused with molestation or something. Q: Who?s that? A: Gunther. Q: Gunther? A: Yeah. Q: Ok. A: And, I think that is like playing with your privates and stuff. I think. And then he?s gotten.. for every charge there?s been eight charges. For every charge he?s serving five years or something. That?s all I know. Q: Who told you all this? A: My parents Q: Your parents? Ok. Uh, How do you feel about that? A: Um. Q: You said that.. A: I can?t believe most of it. Q: Can?t believe it. You said that you knew or you know Gunther. A: He?s like, he?s like, he comes over to the house like every night. He used to, now he doesn?t. Q: Over your house? A: Yeah at our house. Takes us out movies, stuff like that. Q: Takes you out to movies, just you? A: Me and my brother, sometimes my sisters. Usually just me and my brother. Q: Ok. So ya?ll go out to movies with him and everything. Ok. Does he have any kids? A: No, he just got married like six months ago. Q: Just got married. What?s his wife?s name? A: Amy. Q: Amy. You said it is Fike? Fiek? A: No Fiek, the news says Fike, but that?s not right. Q: So it?s Fiek? A: It?s Fiek. Q: How do you and Gunther.. Does he still train you? Or uh. A: No, not anymore. Yeah he did but now, well, my mom is keeping us out till we get all this over with and then we might go back we might not. Q: When was the last time your trained with him? A: Um, probably, it happened Sunday, probably last week on Monday. Q: Last week on Monday. Well you said that your brothers and your sisters are giving you touches that made you feel uncomfortable.. A: Um yeah but, sometimes I deserved it. Q: (laughs) You deserved it!? My little boy is like that too. Every once in a while he deserves to get a little touch from his sister he don?t like. She?ll smack upside the head every once in a while. He gets a little out of line with her, start picking or her and punched on her and she comes right back at him. He doesn?t want to do that too often. Have you ever gotten a touch from anybody else that you don?t like A: No not really. Q: Anything that made you feel uncomfortable or anything like that? A: Not really. Q: Ok, what about uh? A: Well, if I get like punished I don?t really like that. Q: How do you get punished? A: Um, I used to like get hit with the belt. But that was used to. Q: By? A: Mom. Q: Mom. Ok. A: And now the punishment is like?..um, you lose tv and stuff it?s not really like that anymore. Q: Yeah A: Now it?s just lose Tv and sit at the table hour and do nothing. Like detention sort of. That?s another one Q: What would you rather do, get a spanking or have to sit at the table for an hour? A: Probably just sit at the table. It?s not that bad. We?re aloud to do home work so? Q: Well, back to what we were saying when we was talking about Uh, good touches and bad touches, uh , touches that made you feel uncomfortable and things like that. Uh, have you ever gotten a touch from anybody other than your sister?s. A: No Q: That made you feel uncomfortable? A: No not really, there might be a time at school when somebody comes up and does something that they were just trying to be cool but the end up doing it too hard. But that?s just? Q: You named another touch that would make you feel uncomfortable that was touching on your private. Has anyone ever done anything like that to you? A: No. Q: Ok. Has anything ever asked you to do anything like that to them? A: No Q: Has anyone ever done anything, even if it was a touch that made you feel uncomfortable? A: Ummm, yeah. Q: What?s that? A: Just doing things that, bad, that I know we?ll get in trouble for. But then I end up doing it anyway. Get busted. Q: (laughs) Get busted. A: Yeap. Q: Uh, You were telling me that uh, that you are pretty good friends with this Gunther guy? A: Yeah Q: Ok, when you say good friend, you say that he takes you out to movies sometimes and your brother and all that. A: Goes to Church Q: He goes to church? Where do you go to church at? A: Same. Eastside Baptist. Q: How often does he take you out to movies? A: Um, he probably took us at least probably 2 times a month. Q: Yeah. A: And in the summer we go to a lot of places. Like Six Flags and places all like that. Q: You and Gunther and..your brother? A: We go to Six Flags with the whole, and Gunther and Amy, but when we go to the movies it?s just Gunther and Amy, me and John. Q: Ok, is Amy usually there or does he ever take you by himself? A: Um, he well, he married only six months ago. So it used to be just us three but now it?s usually four. Q: How do you feel about Gunther? A: Um, I mean like right now? Q: Yeah. A: I can?t believe like what?s going on. I?m not really sure if he did it, but I don?t know if he would do it, but? Q: Have you ever seen Gunther do anything like this? A: No Q: No. I understand you took Taekwondo. Where does this take place? Taekwondo? A: The CAC. There church is "here" and the school is "right there" and the CAC is the big center place. Christian Activity Center where you can do basketball? Q: Is over at the Church? A: No, it?s like a across the street. There is a street that goes down the middle and on this side is the CAC and on this side is the Church and school. Q: So the lessons, they take place at the Christian Activity Center? A: Yeah Q: Is that like a big gymnasium or? A: There?s a track.. they almost had a bowling alley but they couldn?t come up with the money. So now it?s just like a play room sort or. There?s a weight room, snack rack, there?s a gym and there?s rooms where? Q: Where there any special rooms there that Gunther used to have? A: Yeah, there uh, there?s an office where all the people that have something to do with the after school stuff. They have an office in there. He?s got one. Q: He?s one in there. A: I?ve been there a lot. Q: You?ve been there in there a lot. What goes on in there? A: He just, that?s like, like his business. He has a business where I think he does some stuff in there. And he just, I don?t think in there a whole lot. Q: Does he have a room anywhere in there if he is discipline one of the students or talking to them or anything? A: No. Well, he?ll bring them in there just talk to them. Q: In his office? A: Yeah, cause he can talk to them in private instead of having to go. Q: How often does he have to take somebody into his office to talk? A: I haven?t seen it in the past few years. Q: Have you ever seen him do anything like that? A: Like what happened right now? Q: Take any of the kids into the office. A: Yeah I have once, but he just talks to you, he just talks to you about (coughs) Goly. Q: Boy you have a bad cough. A: How you need to act better in class. If you mess up a lot then he?ll take you in there and kinda talk to you about what you need to do right. Q: Well, I?m just going to come right out and ask you, Ok. Has Gunther ever done anything like this with you? A: No. Q: Ever done anything that makes you feel uncomfortable? A: No. That?s why uh.. Q: Have you ever seen him anything or touch anybody? A: No. Q: That would have made you feel uncomfortable had it been you? A: I haven?t seen anything like that. Q: Have you ever seen him take kids back into any of the rooms in the training center or anything? A: Yeah, but usually it?s just talking. Usually it?s us me and my brother. Me and my brother. Cause he?s just talking about like something that maybe going on after, telling us like.. what time is it again? What time is the game? What are you doing tomorrow? Do you want to go to a movie? Or something like that. That?s usually all. Q: Do you remember any of the boys or girls that he took back in his office? A: No, no. Q: You don?t remember any of their names? A: Their six, I don?t know. They are only six years old, I don?t?. but they trust (unintelligible) Q: Yeah. Well let me ask you this. If you found out that this actually did happen, would that change the way that you feel about Gunther? A: A little bit. Q: Ok. Do you find it strange that all these little boys were coming up and saying this? A: No Not? Well Yeah. Cause I didn?t think he would do something like that, then it happened. Q: Does it make you nervous? A: Nope. Q: Thinking about it? A: Nope. Q: No, now your brother, I understand your brother is out here. What?s his name? John? A: John. Q: Has he ever said anything like that you? Or told you anything like that? A: Like what? Q: Like Gunther?s ever done anything like that to him? A: It hasn?t happened to anybody in our family, no. Q: Ok, what about your sisters? Have they ever said anything like that? A: No. They both quit like 5 or maybe 2 or 3 years ago. Q: Yeah. Well Tommy I appreciate you coming in here and talking to me ok. We are just trying to find what all has gone on and get to the bottom of it and find out the truth. A: (nodded head yes) Q: And I understand you uh, you still like Gunther and that you don?t believe that this is going on, uh, and I?m not here to try and convince you otherwise ok. I?m just here if anything happened to you or if you know if anything has happened to anybody. A: Uh huh, ok. Q: I appreciate you coming here and talking to me. Do you know the difference between the truth and I lie? A: Uh huh. Q: What do you think the difference is? A: Truth is what really happened and a lie is just something made up so you don?t get in trouble. Q: So everything you told me here today, is that the truth or lie? A: Yeah it?s the truth. Q: True ok, well that?s it. You did the right thing by talking to me and saying nothing?s happened and that?s great. Ok. And I appreciate you coming in here and talking to me. I?m going to let you go back out here and sit, ok? A: Ok. (Whereupon, the video was concluded) On This page Alan Sherman # 1 Alan Sherman # 2 Jerry Sherman Steve Hiller Ken Chapin Larry Kramdem Tommy Jenks copyright 2009 National Center for Reason and Justice Apr 18, 2009 1 Gunther Fiek Innocent Victim of Mass Hysteria Home In More Detail Search This Site How You Can Help March - June 2008 Note: number in between brackets after the mentioning of adocument represents the document number in the District Courtâ??s Docket Report. 1.     An order [18] by Magistrate Judge Walter E. Johnson was issued on March10, 2008, where Petitionerâ??s Motion for Appointment of Counsel was deniedbecause â?? at this time, there appears to be no basis for an evidentiary hearingâ??. The Magistrate Judge cited a case that said â??Prisoners do not have aconstitutional right to counsel where mounting collateral attacks to theirconviction or sentences â??.  Magistrate Johnson also stated that Federal Courtscan, however, appoint counsel in post-conviction proceedings if the courtdetermines that the issues presented call for an evidentiary hearing.Nonetheless, he apparently does not believe there are grounds for anevidentiary hearing. 2.     Magistrate Johnson accepted Petitionerâ??s request to terminate Mr. RodneyZell as counsel and granted Petitionerâ??s request to continue the proceedings asa prose litigant. He also granted Petitionerâ??s prose Motion for Extension oftime to file Amended Petition and Brief [15]. Additional pleadings must befiled by June 20, 2008. 3.     A Motion for a 30 day Extension of Time [19] was filed by Petitioner inabundance of caution on June 16, 2008. Because of lack of funds used up onprevious attorneys, Petitioner found it difficult to hire another attorneysince Magistrate Johnson would not grant the request for appointment ofcounsel. Petitioner, acting prose, has had to prepare his Amended Petition andall pleadings on his own. Case Documents The Appellant Brief Non-Accuser Interviews Status March - June 2008 Up to February 2008   copyright 2009 National Center for Reason and Justice