Military Specifications Against Army Officer Dismissed Due to Statute of Limitations
Military Counsel: MAJ Kevin M. Adams
Civilian Counsel: Thomas A. Pavlinic
Date: March 23, 2018
Result: All Specifications Dismissed
In 2017 a high-ranking, retired Army officer was accused with 6 specifications of having sexually abused his daughter between 1983 and 1989. The complainant did not make a report to the military until 32 years later in January 2015, when she was 44 years old.
During the course of the investigation, the discovery which was provided by the government showed multiple, major contradictions in the complainant’s statements.
At an Article 32 hearing (the equivalent of a preliminary hearing in civilian court) the presiding judge recommended that 4 of the specifications be dismissed. Despite the court’s recommendation, the government referred all 6 to a general court-martial. (Commanders in the military court have discretion beyond civilian prosecutors.)
At pre-trial motions, the first 3 specifications were dismissed by the trial court, as was previously recommended at the Article 32 hearing. The court also found that the referral of specification 4 for court-martial was defective and solicited further rationale from the government to substantiate this offense.
While preparing for a July 2018 general court-martial, the Court of Appeals for the Armed Forces, the military’s highest tribunal, in an unrelated case, overturned years of military decisions and held that the statute of limitations for an alleged rape committed before 2008 was 5 years. Since the prosecution in this case did not begin until 2015, the court granted the defense’s motion for dismissal, thereby ending the prosecution against our client.
Client Facing Sexual Abuse Allegations in Two States Found Not-Guilty by Jury
Court: Cobb County Superior Court
Case Name: State v. C.W.
Lead Attorney: Tom Pavlinic
Co-counsel: Corinne Mull
Judge: C. LaTain
Date: May 15, 2017
Result: Jury Verdict – Not Guilty on All Counts
Our client was charged in Cobb County Georgia in a 3-count indictment with the following offenses: Child Molestation as a result of allegedly touching a child’s vagina and breasts (Counts 1 and 2, respectively) and Cruelty to Children in the First Degree based upon the alleged touching causing extreme mental pain (Count 3).
While visiting her grandmother and our client (Client) in August 2015, the 11-year old complainant reported to her grandmother that Client made her feel uncomfortable when he gave her a back rub. Client had known the complainant since 2009, when he and the grandmother began their relationship. Evidence at trial established that Client had given the complainant backrubs for many years, and the grandmother described her granddaughter as a “backrub freak.”
When the grandmother returned the complainant to her parents in North Carolina, new allegations surfaced. Now the complainant – for the very first time – alleged that Client had touched her vaginal area during a vacation in Myrtle Beach, South Carolina a year earlier in the summer of 2014.
The parents took the complainant to a therapist who reported the allegations to law enforcement. As part of the investigation, the complainant and her grandmother gave video interviews that were provided to the defense in discovery. Client was first arrested at his home in North Carolina and extradited to Georgia and then arrested in Georgia and extradited to South Carolina.
Jury selection began on May 9, 2017, and testimony started the following day. The State called 7 witnesses in the following order: mother, father, complainant, the interviewer, therapist, grandmother and investigating detective. Although our client was only on trial in Georgia for conduct that allegedly occurred in that jurisdiction, the State was able to introduce statements regarding the conduct that allegedly occurred in South Carolina as “propensity evidence.” Cross-examination of the state’s witnesses brought out inconsistencies in the complainant’s testimony and also established the implausibility of the South Carolina allegations. At the conclusion of the State’s case, a defense motion for directed verdict as to Count 1 was granted.
The defense presented the testimony of 6 witnesses: South Carolina defense counsel, Client and 4 character witnesses, including Client’s friend of 50 years, his son and 2 former wives. The testimony of South Carolina defense counsel was crucial because it permitted argument during closing that no action had been taken in South Carolina, and Client had the constitutional right to defend himself in that jurisdiction as well.
The case went to the jury on Monday, May 15, 2017, around lunch time. After several hours, the jurors sent a note saying that they were hopelessly deadlocked. Nevertheless, the judge ordered them to return the following morning and continue deliberations. After a total of 8 hours over 2 days, the jury entered Not Guilty verdicts to both remaining counts on May 16, 2017.
Jury Finds West Virginia Magistrate Judge Not Guilty of Sexual Abuse
State: West Virginia
Court: Harrison County Circuit Court
Case Name: State v. M.G.
Lead Attorney: Tom Pavlinic
Co-counsel: Belinda Haynie
Judge: Thomas W. Steptoe Jr.
Date: July 5, 2016
Result: Jury Verdict – Not Guilty on All Counts
Our client was a 46-year old Magistrate Judge with 2 older children when he met the mother (to be referred to as “Mother”) of the complainant in 2000, who had a 9-year old son and a then 4-year old daughter, the complainant (to be referred to as “Complainant”). In 2003 our client, along with his daughter, Mother and her 2 children moved in together. When our client (to be referred to as “Client”) and Mother married in 2005, she was employed by the prosecutor’s office.
Between 2009 and 2014, Complainant’s life was in complete chaos. Although she had been a good student and active cheerleader throughout her school years, at age 15 (2011), she became addicted to injecting and snorting heroin, often using in excess of 24 bags a day. Her addiction led her into 3 stints of rehabilitation. Complainant’s medical records substantiate that she attributed her addiction to her circle of friends and an inability to stop. At a preliminary hearing she testified that the alleged abuse did not cause her drug addiction. At trial she retreated from this previously given, under-oath testimony.
Also, during the 2009-2014 time-frame, Mother, Father and other family members continued to ask Complainant if she had been sexually abused by Client; they had their “suspicions.” Despite Complainant’s repeated denials to her parents and family, Mother testified, “I just could not let it lie.” Not only did Complainant deny the allegations to her parents and family, but also to medical personnel whom she saw for her addiction. The defense presented 7 exhibits culled from Complainant’s records in which she denied any abuse.
Events exploded in August, 2014 when Complainant was hospitalized for her third attempt at rehabilitation for heroin addiction. Her father kept pressing her to explain why she kept relapsing. Complainant, for the very first time, blamed her mom’s “perverted ex-husband.” She made the allegation after having heard another patient tell an almost identical story. Having finally gotten the answer that he had been awaiting 5 years to hear, Father, against the advice of hospital staff, then immediately checked her out of rehab and took her to the state police. It was there, for the first time, that Complainant made an accusation to law enforcement against Client.
Complainant reported that she was raped on 5 separate occasions. She claimed two of the incidents occurred before she had her period on Valentine’s Day in 2006 when she was 9 years old – once when her mother was not home, and once when her mother was in an adjacent bedroom. An additional two incidents were to have occurred on June 15-16, 2006, when her mother was at a conference. The final incident was to have taken place in 2009. Complainant also maintained that Client drilled holes in the door and walls to spy on her. While this was supposed to be occurring, Client’s daughter’s uncontradicted testimony was that she lived in the house from the time they all moved in together in 2003 until the middle of 2008.
Law Enforcement’s Investigation
The investigating trooper then conducted what many observers described as a biased and incompetent investigation. The trooper failed to: contact Client’s daughter, review medical records, verify the mother’s trip, interview Complainant’s therapist or challenge Complainant about the imaginary holes in the walls. A purported independent witness to an alleged specific spying incident was never identified. He also secretly recorded a conversation with Mother’s boss (the then elected prosecuting attorney) in an apparent attempt to verify Mother’s versions of the 2009 conversations — an unheard of undertaking in law enforcement circles.
Although Complainant claimed that the abuse took place on a very specific weekend, June 15-16, 2006, when her mother was at a conference, the trooper failed to obtain records that clearly established that the mother never even attended such a conference. Inconceivably, when the case was presented to the grand jury, the trooper testified that those dates were verified.
The Arrest & Pre-Trial Motions
Client was arrested in October 2014 and suspended without pay while the case was pending. As part of reciprocal pre-trial discovery, the defense presented the state with documentary evidence that Complainant’s mother never attended a 2006 conference. At trial the state then developed a brand new theory, alleging the abuse did not happen in 2006, but rather in 2009! When confronted during cross-examination with this inconsistency, Complainant testified that “we” concluded that it must have been 2009; this version came 2 years after the initial allegations and only after last-minute discussions with the prosecutors.
In an attempt to bolster its case, the state notified the defense that it intended to call three experts: a physician who performed a physical examination 9 years after the alleged abuse; a social worker who did not conduct an independent investigation but concluded that Complainant was a victim of abuse; and a psychologist who was going to testify about “behaviors of sexually abused children” and reasons for “delayed disclosure.” In pre-trial motions, the defense described the state’s psychologist as a “quack” for agreeing to such testimony after having spent less than an hour with Complainant and having acknowledged, under oath, that there are no objective behavioral characteristics of sexually abused children.
At trial, the state’s medical expert testified that her exam was “normal,” that she really did not anticipate any medical findings after a 9-year period of time, but that she came to court for evidence purposes. Neither the social worker nor the psychologist was even called during the trial. This was in part due to the defense’s expert who was prepared to rebut their anticipated testimony.
The trial began in 2016, and spanned 6 days. The prosecution presented Complainant’s testimony and that of her mother, father, cousin, an acquaintance and the medical expert. The investigating trooper sat through the entire trial but never testified. The defense presented the testimony of Mother’s boss, another then assistant prosecutor, a SANE nurse, a psychologist, its investigator, Client’s daughter, Mother’s own therapist and a character witness who had known Client for over 50 years. Finally, Client took the stand and testified on his own behalf.
The Verdict & Reinstatement
Jury instructions and closing arguments took place the morning of the 6th day. After only 90 minutes of deliberation, the jury returned verdicts of Not Guilty on all 5 counts. Within days of the verdict, the West Virginia Supreme Court restored Client to his position as a Magistrate Judge and ordered that he recover the wages he lost during his suspension.