On Appeal, Maryland Department of Human Services is Directed to Expunge “Indicated Report” of Child Sexual Abuse
State: Maryland
Maryland Office of Administrative Hearings
Case Name: K.L v Prince George’s County Department of Social Services
Lead Counsel: Thomas A. Pavlinic
Administrative Law Judge: Brian Zlotnick
Date: December 27, 2021
Result: Overturned the “Indicated” Finding in Favor of “Ruled-Out”, Expungement Ordered
In Maryland, when the Department of Human Services investigates an allegation of child sexual abuse, it can make findings of “Indicated,” “Unsubstantiated” and “Ruled Out.” In this instance, the assigned social worker inexplicably entered an “Indicated” finding that would be included in its database for future use by the agency or law enforcement. Our client appealed.
The “Indicated” finding was inexplicable because it was based upon the uncorroborated hearsay statements of a 3-year-old child for whom our client was providing babysitting services. One of the child’s parents reported to Child Protective Services (CPS) that their 3-year-old speech-delayed child “communicated” to them that our client scratched him in the anal area with a toothpick.
A significant flaw in the investigation was that the social worker did not take a recorded statement from the 3-year-old, arguing – against its own protocols – this was “not necessary.” Our expert, Leigh D. Hagan, Ph. D, testified at the hearing that the only way to evaluate the credibility of a 3-year-old’s allegations was through a forensically recorded interview.
The 3-year old was examined by an independent pediatrician who testified that redness around the anal area was no indication of abuse, and that it is in fact a common finding in children of such young age. More importantly, when she attempted to interview the child, he made no statement whatsoever of any abuse. The administrative law judge placed great significance on this testimony when he issued his opinion.
Another patently unfair tactic employed in these investigations is to request a statement from the accused without providing any details of what was being alleged. During a conference call that we had with the investigator and the agency’s attorney, we demanded to know what the factual allegations were. None, however, were given. The only accusation was “sexual abuse.” Therefore, the only thing that our client could so in response was “no sexual abuse.”
The client testified that many postings on the internet talked about the unfairness of the DHS investigations. Incredibly, the investigator found “Indicated” abuse because the client had not “satisfactorily refuted the allegations.” That investigator left the Department, and all of our efforts to subpoena her were unsuccessful. In addition, her supervisor testified that she did not know where that social worker was, nor did she want her to testify in the proceedings.
We located her at the Child Advocacy Center in a neighboring county, but no one would open the door for our process server. This backfired on the agency because the administrative law judge was critical of her failure to testify.
The hearing went on over 3 days. During her cross-examination, the child’s mother was shocked to learn that the alleged toothpick scratching was to have taken place when the child’s pants were on – a fact known to the agency throughout the investigation. The judge then took the case under advisement and issued a 19-page decision finding that the Agency did not present credible evidence of abuse, overturned the “Indicated” finding in favor of “Ruled -Out” and ordered that our client’s name be expunged from the system as an abuser.
This case is just another vivid example of the bias and incompetence that taint so many of these CPS investigations. The social workers accept the allegations at face value and set out to prove, not to objectively investigate, them. The only hypothesis that is considered is guilt.
Maryland Juvenile Client Not Involved (Not Guilty) of Sexual Abuse of a Minor
State: Maryland
Court: Circuit Court for Anne Arundel County
Trial Judge: William C. Mulford
Case Name: In the Matter of v. E. B.
Lead Counsel: Thomas A. Pavlinic
Trial Start Date: November 3, 2021
Result: Not Involved (Not Guilty) at Bench Trial
Our then-minor client was accused in juvenile court in 2 separate counties (Calvert and Anne Arundel) of having sexually abused his minor cousin (the complainant) numerous times over 8 years, beginning when she was 5 years old and ending when she was 13. The alleged abuse included oral penetration, digital penetration, touching and the insertion of an object. There was no medical exam or medical evidence.
Procedurally, because the penetration offenses were alleged to have occurred after he turned 16, the State charged our client as an adult in one county and as a juvenile in the other. Two pivotal pretrial defense motions were granted. The first transferred the adult charges back to juvenile court, and the second consolidated the cases into one county. We were also able to obtain pretrial discovery of the complete CPS files and some of the complainant’s therapy records.
Prior to our client’s arrest, the Child Advocacy Center, working with law enforcement, conducted a series of video interviews of the complainant, her parents and sisters. That evidence revealed the complainant participated in family discussion and underwent therapy to help her “recover” memories of abuse. In addition, the abuse was to have occurred at family gatherings only in fully accessible basements at our client’s home as well as at the grandparents’ attended by as many as 12 adults (including the complainant’s parents) and other children (including the complainant’s sisters). No one ever saw any abuse or even had any suspicion of any abuse. This did not stop Child Protective Service and the State from bulling ahead with the charges.
The complainant testified at length about the alleged abuse. Her parents, one sister and the investigating detective also testified for the State. Cross examination and documentary exhibits pointed out numerous contradictions and the implausibility of the accusations. On motion made after the State rested, the court dismissed 4 of the charges: 2 for statute of limitation violations and 2 for lack of sufficient evidence.
The defense called our client, his parents, their grandmother, 2 uncles (one a police officer), his grandmother and 2 independent teenagers who attended many of the gatherings. In addition, we presented a stipulation that the complainant’s younger sister never saw our client and the complainant alone. She told law enforcement in her video interview that her sister and our client’s sister, both the same age, were always together.
During direct examination the complainant testified that she had taken a photo of our client directly after a specific incident of abuse. She was shown the photo and confirmed that it was the photo she took. The defense was able to offer strong evidence that the photo was in fact not taken on the date of alleged conduct.
Although we had an expert on board to talk about a biased investigation and the unreliability of memories recovered in therapy, the court did not feel that testimony was necessary. At the conclusion of the case, the judge meticulously summarized all the evidence and acquitted our client. (Because the case was in juvenile court, a jury trial was not allowed).
Maryland Stepfather Charged with Sexual Abuse of a Minor Found Not Guilty by Jury
State: Maryland
Court: Circuit Court for Anne Arundel County
Trial Judge: Elizabeth S. Morris
Case Name: State v. J.B.
Lead Counsel: Thomas A. Pavlinic
Trial Start Date: October 25, 2021
Result: Jury Verdict – Not Guilty on All Counts
The State charged our client in Maryland with 4 separate offenses related to a single incident which was to have occurred on November 24, 2020: Sexual abuse of a minor, Sexual offense in the third degree, Sexual offense in the fourth degree and Assault in the second degree.
He was alleged to have had sexual contact with his 13-year old stepdaughter (complainant) while watching a movie at their home in Pasadena Maryland when the mother was visiting family in another state. The alleged contact lasted less than a minute. The State’s witnesses at trial were (i) his stepdaughter who testified about the alleged abuse and (ii) his wife, the complainant’s biological mother, who described the disclosure of the abuse as well as her observed changes in complainant’s demeanor and behavior after the alleged abuse. There was no meaningful, objective investigation by Child Protective Services or the police department. This was a classic example of a biased “rush to judgment.”
A key piece of evidence for the defense, a recorded telephone call, was ruled inadmissible. This was a legally recorded phone conversation between our client’s mother and the complainant’s mother made in Colorado. During the call, the complainant’s mother described her doubt as to the validity of the allegations, as well as her knowledge of the complainant’s previous delusional behavior. Although this conversation was recorded legally in Colorado, the court ruled that it did not meet the criteria for admissibility under Maryland’s Wiretap statutes.
Nevertheless, some evidence of the previous delusional behavior was able to be admitted due to recorded CAC (child advocacy center) interviews in which such behavior was discussed. Additionally, the defense was able to expose inconsistencies and contradictions through focused cross-examination of the complainant and her mother. We also described for the jury the implausible nature of the circumstances under which the abuse was alleged to have occurred.
Our client testified and adamantly denied the allegations. He described his positive relationship with his step-daughter, his 10-year career in the United States military and the close interaction he had with the complainant’s mother up to the present time.
Our defense, based on the evidence, was that the complainant had mental difficulties and that the falsely alleged abuse was in fact a product of these difficulties. Furthermore, we introduced evidence that the complainant’s own mother doubted the validity of the allegations.
After deliberating for just 1 hour and 13 minutes, the jury unanimously found our client not guilty of all charges.
Confronted With Overlooked Exculpatory Evidence, Prosecutor Dismisses All Charges
State: Maryland
Court: Circuit Court for Anne Arundel County
Case Name: State v. L.K.
Lead Counsel: Thomas A. Pavlinic
Co-counsel: Thomas C. Mooney
Dismissal Date: September 18, 2020
Result: All Charges Dismissed
Our client and his wife had a daughter, M. In 2018, when M. was 5 years old, the parents separated. Unbeknownst to the father, the mother was taking pictures of their daughter’s private areas after every visit with her father.
In April 2019, in the middle of the divorce litigation, the mother offered the photos as exhibits claiming they were evidence of sexual abuse. The judge enlisted the services of an experienced CPS social worker. The worker interviewed M who said that no one had abused her. The social worker also concluded that the photos depicted poor hygiene, not sexual abuse.
Undeterred, the mother continued to take photographs of her daughter’s private area. Even though she had her daughter seeing multiple therapists, sometimes two on the same day, it appears that she never informed them of her practice. In November 2019, mother claimed that her daughter said her father had sexually abused her. The same social worker interviewed M a second time, but the mother did not disclose the existence of the new photos. Mother obtained a protective order prohibiting contact with M and her father. Then she gave the new photos to the worker.
The worker had the photos reviewed by an independent forensic nurse and a pediatrician board certified in child abuse. They both concluded that the photos were evidence of poor hygiene, not sexual abuse. The worker “unsubstantiated” the findings in her January 2020 report as M could not provide a credible account of the alleged abuse.
The State arrested our client in February 2020, and indicted him on 11 major felony charges the following month, including sex abuse of a minor, rape and various related sex offenses. When the State initiated these charges, the assigned prosecutor wrote that she had no knowledge of the photos or the exams, even though this information was explicitly laid out in the social worker’s detailed report.
After conducting our due diligence review of the evidence, we uncovered not only the existence of this exculpatory (Brady) evidence, but also other discovery violations. One glaring example is the designation of Dr. K. who was going to testify “as an expert in pediatric emergency medicine and child abuse.” The details required by Maryland’s Discovery Rule 4-263(d)(8) were not included.
We initiated a joint Zoom call with the doctor, his counsel and the prosecutor. During that call, the doctor unequivocally stated that (i) he never talked to any representative from the State or law enforcement, (ii) these are not his areas of expertise, and (iii) he was not retained to provide those opinions. He had no evidence whatsoever that benefited the State. Further, because his physical exam was normal in every respect, we designated him as a defense witness.
We summarized the evidence in a detailed memorandum to the prosecutor and asked her to objectively determine whether this case should continue when the State’s own evidence establishes it should not. If she disagreed, we wanted a meeting for all of us with the State’s Attorney and any attorneys involved in the screening, or presentation of this case to the Grand Jury.
On September 18, 2020, just 10 days after receiving our memorandum, the prosecutor entered all 11 charges nolle prosequi (dismissal) in open court!
Jury Finds Client Not Guilty of Sexual Abuse of a Minor and Sexual Offense in the Third Degree
State: Maryland
Court: Circuit Court for Montgomery County, MD
Case Name: State v. JK. J.
Lead Counsel: Thomas A. Pavlinic
Judge: Richard E. Jordan
Trial Dates: March 2-5, 2020
Result: Jury Verdict – Not Guilty All Counts
JK, Our client, was born in Haiti. As a young man, he experienced the poverty, illiteracy, suffering and political corruption of the island. He arrived in the United States on refugee status in 1994 at age 24.
After a series of menial jobs, he landed a position with the Federal Government in 2002. He had an adult daughter before he married in 2004; he fathered 5 children with his wife.
Because of his experience in Haiti, JK wanted to help others. In 2010, he established a small church to minister to members of the Haitian community and other immigrants in Washington metropolitan area. Even though he and his family did not have a lot of money, he reached out and assisted those who had even less.
One of the families that he helped was a co-worker from Haiti that he had known since 1998. She and her then 6-year-old daughter began attending the church, when it was founded in 2010. The evidence established that between 2010 to December 31, 2014, the daughter visited JK and his family and stayed overnight at their home, according to her own words, “50 times.”
The daughter testified that she told her mother that JK “touched her boobs and vagina” on New Year’s Eve 2014, and that they called JK, who came over and “apologized” the next day. JK denied that this New Year’s Eve encounter and New Year’s Day confrontation ever took place. Between 2014 and 2019, the now 16-year old complainant and her mother continued to attend the church, visit his home and stay overnight.
JK testified that he was made aware of the accusations for the very first time in May 2019, when he met the complainant’s mother at a local McDonald’s to discuss some of the behavioral problems her daughter was exhibiting. The complainant said that she told her therapist in January 2019 of the alleged 2014 abuse.
JK was arrested in June of 2019 and charged with one count of sexual abuse of a minor, a felony, carrying a maximum penalty of 25 years, and one count ofnthird degree sex offense, an additional felony carrying a maximum penalty of 10 years in prison. The advisory guideline range for these offenses was 5 to 10 years active incarceration.
At trial, the complainant said that JK touched her breasts, her vagina and then her breasts again. Cross-examination of the complainant, her mother and the detective established a host of inconsistencies.
The mother was confronted with a statement that she gave to CPS that made no mention of any touching of the vagina and refuted that the client had “made an apology.” The detective’s testimony was important because, according to the complainant, “grandma” was present” on the evening of the alleged abuse. The independent evidence, however, established through passport entries that grandma did not even arrive from Haiti until February 7, 2018.
The complainant’s testimony was further contradicted by testimony from her best friend and the audio statement her brother gave to law enforcement. The defense presented additional testimony from JK’s adult daughter, wife, 2 teenage children, a family friend, her teenage daughter and another person whom the defendant helped. JK took the stand and testified effectively on his own behalf.
During the trial, the defense tried to admit testimony about the complainant’s behavior, but the judge would not allow it. In the mother’s own statements to CPS, she detailed that her daughter had once been an obedient child and good student. However, she began cutting school, lying, stealing, meeting older men on the Internet and attempting suicide on two occasions. In addition, the mother testified that her daughter was “trying to destroy me and anyone helping me” by making allegations that her own mother was unstable, and that she should be “put in the nuthouse.” The court would also not admit evidence of a “sting call” that did not result in JK’s making any inculpatory statements.
The defense argued its closing in a PowerPoint presentation that focused on the complainant’s contradictions and JK’s strong character, stable marriage and steady employment. The jury deliberated less than 2 hours before finding JK Not Guilty on both counts. A sweet victory for a decent human being.
Case Dismissed for Maryland Man Charged with Sexual Abuse of a Minor and Sexual Offense in the Second Degree
State: Maryland
Court: Circuit Court for Baltimore County, MD
Case Name: State v. Michael S.
Lead Counsel: Thomas A. Pavlinic
Date: November 04, 2019
Result: Case Dismissed
Our client is a 20-year member of the U.S. Navy who was only weeks away from retirement when his girlfriend’s 16-year-old daughter made an allegation that he sexually abused her for 3 years between 2011-2014, when she was 10-13 years old. Because of the allegations, Michael’s retirement from the Navy was held up, and he was indicted on state criminal charges, including sexual abuse of a minor and second degree sexual offense.
As part of our due diligence investigation, Michael and I worked closely to establish a timeline. Michael was a hands-on client who assisted in every way he was asked. It was an impossibility for the alleged abuse to have to have occurred for 2 of the years as he was deployed to Germany that entire time. Further, when he returned to the States, the complainant was living with her mother in California, and he was in Virginia.
Our investigation also revealed that the complainant made allegations against her biological father as well as some of her brother’s friends. These allegations were also investigated by the Navy. Once the Navy investigation was terminated, we were able to access all of the exculpatory information.
Without the benefit of counsel, Michael made the decision to give long interviews with both Navy investigators and the Baltimore County Police Department. Fortunately, though, he made no admissions that the State could have used against him. We were worried that some of his comments may have been ambiguous, and law enforcement is prone to putting a prosecution-oriented spin on such statements.
We faced a number of hurdles in the case because the complainant lived with her mother in California. Mother was also an active member of the U.S. Navy and not subject to State subpoena power. Had the case proceeded to trial, we would have had to follow the Touhy procedure that the military requires before its personnel can be asked to appear in civilian court.
Fortunately, we were dealing with an objective and ethical prosecutor. We first provided him with all of the deployment records. We then followed up and furnished the Navy’s investigative file. After the prosecutor reviewed all of the information and talked to his potential witnesses, he opted to dismiss the case. That was done on November 4, 2019.
Michael has since been able to retire with an honorable discharge from the Navy. We will follow through and have all of the records pertaining to the State prosecution expunged.
