The time I may have let a sex offender walk free

In January, I got a jury summons in the mail for the week of February 2. But there was one major problem, my two-year long project in North Carolina was finally going live on February 1.

I managed to defer my jury service, and I was able to pick a week that worked for me. I looked at my calendar and March looked pretty open. I decided to pick the week of March 9. Little did I know what I was getting myself into.

Jury Selection

I showed up at the Dane County Courthouse on Monday morning and was herded into a large room full of about 100 people who were not happy to be there. They showed us a hilarious video from the state that was obscenely patriotic—complete with bald eagles and “regular people” explaining how fulfilling jury duty was.

Then, I was ushered up to the sixth floor—along with about 40 other people—to Judge John Markson’s courtroom. I assumed the jury selection process would be quick. It was probably a stupid civil trial with people arguing over money. But when Judge Markson read the charges against the defendant, my heart sank.

“The defendant is charged with two counts of sexually assaulting a child under the age of 13.”

What a bastard, I thought.

Then the Judge reminded us of that super important pillar of our society.

“These accusations are just that—accusations. They are in no way indicative of his guilt, as we are all innocent until proven guilty,” Judge Markson said.

Well, duh. Everybody knows that, I thought. But I didn’t realize how important that statement would be over the next few days.

The jury selection process was extremely personal and indicative of what was to come. The judge asked us to raise our hand if we—or a close friend or family member—were affected by sexual abuse. Nearly half of the jury pool raised their hand. Then, we went into detail about why people raised their hand. The people that were either direct victims of sexual assault or significantly affected were dismissed from the case.

Then, the judge asked if we had any friends or family members that were in law enforcement. Again, a significant number of people raised their hand. The folks who were directly involved with law enforcement were dismissed.

But the interesting part came when the lawyers got to ask us questions. The defendant’s lawyer asked us if we think children would ever lie. The prosecution asked us if we would be willing to convict someone if we 100% believe an eye-witness testimony—with no other evidence.

That should have been a clue of what was to come.

Either way, I didn’t raise my hand or say too much during the selection process—but I wish I would have. Not because I was directly affected by sexual assault or because I know members of law enforcement, but mostly because I wish I never had to sit through this trial.

The Trial Begins

The trial started on Tuesday morning.

A single mother with three kids—ages 12, 9 and 7—moved to Madison from the South for an engineering job. Her company put them up in a hotel for a few weeks, but also told her that she would need to travel out of state for a week-long training. The mom had no childcare and didn’t know anyone in Madison.

An old friend from South Carolina (and an old boyfriend of the mother) came to Madison to both watch the children and look for a job. This man had watched the kids before, as did his two sisters back when the family lived in South Carolina.

The mom paid for the man to fly to Wisconsin and stay with them in the hotel. He flew up a few days before the mom had to travel out of state. They slept in one of the hotel beds, while the two girls slept in another. The youngest boy got a cot, which they placed in front of the TV.

On the Thursday of the mother’s week-long trip, the 12-year old girl said that the man had fingered her two separate times. The man, of course, said he didn’t do it.

The girl told her mother, who couldn’t come home until Friday night, and Saturday morning the mom called the police. The girl spoke to several police officers over the next few days, got a medical exam a week later and did an interview with a professional who specializes in talking with child victims.

Everything I outlined above are facts (other than the accusations, of course), and were agreed on by both the defense and the prosecution. The rest is blurry.

She said

The girl (we’ll call her Katie) said that she liked the defendant (who we’ll call Al) before the incident. Al had babysat Katie and her two siblings before and they all thought he was fun. So they were excited when they found out he would be coming to stay with them for a bit.

Katie’s mom agreed that the children liked Al. She tried to use a babysitting service in Madison, but that fell through and she didn’t have many other options. She said that she spoke with Al on the phone and that he offered to come watch the kids. He was also looking for a job, so he could look while he was in Madison.

The first few days that the mom was gone were uneventful. The kids wanted to go to the pool, but Katie’s mom said they couldn’t because Katie had a weave in her hair. They would have to take the weave out if they wanted to go to the pool.

According to Katie, Al cut the weave out of Katie’s hair on Thursday morning and right after he finished, he slapped her on the butt. She said it was kind of weird.

Later she would tell the police that Al was looking at her through the bathroom door and the mirror while she was changing.

Then, after they got back from the pool, she was laying in between the two hotel beds playing on the computer. She said Al knew she frequently got leg cramps, so he started massaging her leg. He slowly worked his way up and started rubbing her private area. Then, he put his hands into her underpants and put his finger inside of her. She said it felt weird, so she moved away.

That’s when one of the other kids called Al for help on the other side of the room. Al went to help, but came back a few minutes later and did the same thing. She said he fingered her and she didn’t like it.

Katie said she texted her mom and asked her what she was doing. Then, Al took her phone from her so she couldn’t talk to her mother.

Katie’s mom was still in training so she couldn’t call, but her mom said she knew something was wrong. She tried to call Katie, but Al answered the phone and said Katie was fine and didn’t want to talk.

Later that night, Katie was laying in bed with Al and he grabbed her leg again.

“What are you doing?” she asked him.

“I thought it felt good,” Al said.

She got up and told Al she needed to call her mom about “girl stuff” and took her phone into the bathroom. She FaceTimed her mother around 7 or 8 PM and her mom immediately knew something was wrong.

“She looked scared,” Katie’s mom said.

She didn’t want to talk loudly, so she whispered what had happened to her mom. She said she knew Al was listening against the door and he wanted to make sure she didn’t tell her mom. Before she ended the phone call, she left the bathroom and gave the phone to Al.

Katie’s mom talked to Al briefly, but didn’t mention anything. She was panicking and didn’t know what to do.

Katie’s mom decided to call the hotel and speak with the front desk lady, with whom the family had become friends. She told her what happened and asked the employee to make sure Al left the hotel as soon as possible.

The employee noticed that Al was in the lobby on the phone, so she went and changed the lock on the door. When he came back and couldn’t get into the room, she explained to Al that Katie’s mom requested that he leave.

He didn’t have anywhere to go and made a fuss at first. But she told him to leave. A few minutes later, she went back to check on them and saw him entering the room—Katie must have let him in. She went to the room and saw him packing his things.

During this time, Katie said Al was yelling and swearing at her.

He eventually left the hotel.

The mom couldn’t find a way to leave her training and come home, so she called her boss. Her boss’s wife went and picked up the children and watched them until Friday night when she returned.

She was afraid to call the cops, because she didn’t have anyone in Wisconsin and she figured they would take the children away. So she waited until she got home and called the cops on Saturday morning. By this time, Al was long gone and on his way back to South Carolina.

He said

Al claims that Katie didn’t like him all along. Even when he watched the children three years ago in South Carolina, he got a feeling from her that she didn’t like him.

In his testimony, Al explained that he and Katie’s mom used to date.

The family moved to Alabama before eventually coming to Wisconsin, and Al said he talked to Katie’s mom on the phone nearly every day. But he couldn’t remember where they lived at the time.

“We spoke on the phone every day when they lived in Louisiana or wherever,” he said on the witness stand.

Al said that during the few days before Katie’s mom left, they had sex in the hotel bed while the other children were in the same room sleeping – well, they assumed they were sleeping.

On that fateful Thursday, he claims that he never slapped Katie’s butt after he took out her weave, and that he never touched her in any other way. He also said he was never listening in on Katie’s conversation with her mom in the bathroom, or that he kept taking Katie’s phone from her so she couldn’t tell her mom what happened.

When he got locked out of the room, he was extremely surprised. And in her testimony, the hotel employee confirmed that he seemed genuinely surprised at the accusations.

Al said the hotel employee let him back into the room, and that’s when he called Katie’s mom and asked if he could sleep in the car until she got back so they could talk about it. She told him no. He had nowhere else to go, and it was -18 degrees Fahrenheit outside. He called his mother, and she got him a bus ticket back to South Carolina.

Frankly, he said, Katie was lying about everything.

The Evidence—or lack thereof

Since they waited a few days to call the cops, and they had to wait an extra day to get a medical exam, it was nearly five days after the incident when Katie got a proper medical exam. She told the nurse that she was kicking and biting and scratching to try to get Al off of her. That was actually direct quote from Katie, as documented in the medical report. The only physical evidence was a red mark inside of Katie’s vagina.

The nurse—who had done hundreds of such examinations in the past—explained that this was “consistent with history.” In that, this could be explained by sexual assault, or it could be any number of things, even wearing underwear that was too tight. So really, it was inconclusive.

There were really only two fact-based pieces of evidence that would have been possible—the hotel camera footage and the text messages/phone calls between Katie and her mom.

The prosecution provided neither of those things.

The hotel footage would have told us was how Al got back into the room, and it could also have given us some keys about Al’s demeanor during the entire incident.

The phone records could have told us everything. Katie’s mom said she received like three or four text messages, but no responses when she replied. Katie said she only sent two. It’s 2015, how hard can it be to get text message and phone records?

During the trial, Katie admitted to lying about certain pieces of information. She admitted that Al never looked at her in the bathroom mirror while she was changing. She also admitted that she never scratched or bit him to fight him off.

Basically, we had absolutely no evidence, and we had to rely solely on the testimony.

Closing Arguments and Instructions

On Wednesday, the prosecution gave a succinct closing argument—just because Katie exaggerated a few things doesn’t mean she made the whole story up. The defense spoke for nearly an hour and completely tried to confuse us. He intentionally said incorrect things. He was from Panama and I think he deliberately tried to use his accent to confuse people. But it all boiled down to this: If Katie lied about two things, how do we know she didn’t lie about the whole thing?

Then, Judge Markson gave us clear instructions. He read them aloud to us and gave us a copy of them. He explained what the prosecution needed to prove in order to find him guilty for the two counts, and he explained what reasonable doubt meant.

If there was anything that a reasonable person could deem as being in favor of the defendant’s innocence, then we must find him not guilty.

We took our instructions back to the jury deliberation room. The bailiff took all of our cell phones from us, and locked them in a cabinet. They ordered lunch for us and we were told that we couldn’t leave until we had a unanimous decision.

Deliberations

While we ate lunch, I suggested that we shouldn’t talk about the case while we were eating, but instead we should just decide on a jury foreman. Nobody wanted to be the foreman, and since I had that original suggestion, it was decided that I would be the foreman.

I cut up some pieces of paper and handed everyone a small slip. I asked everyone to write their initial verdict before we had any discussions. I asked another juror to count the votes while I tallied them on the white board.

I voted guilty, but our initial count was evenly split, 6-6.

Then, I put two columns on the board. One for “doubts” and one for “why he’s guilty.”

We went around the room while everyone listed all of the doubts they had. We wound up with a list of about 12 doubts.

  • Why did the mom not mention they were sleeping together?
  • Where were the text messages?
  • Why did Katie lie about fighting back and about Al spying on her?
  • The timeline didn’t fit together.
  • Was he really yelling at her and swearing when he was packing?
  • How did he get back into the room?

We had a list of about four reasons we thought he was guilty. One was simply, “why would Katie lie?”

We then tried to go through each doubt and have a discussion. Our goal was to eliminate every doubt and then we could find him guilty. We were able to eliminate a few. For example, we decided that the timeline of the day didn’t really matter. Who cares when they went to the pool?

But there were several that we just couldn’t overcome. Why didn’t we have the text messages, or the hotel footage? Did the police screw up the investigation? Or were they hiding something?

Also, what was the context of the direct quote from the medical report? Maybe the nurse asked a leading question which caused Katie to lie about kicking and biting Al. We wanted to see the full report. So I wrote a note asking the judge if we could see the medical report. I signed the note and gave it to the bailiff.

About 15 minutes later, I got a note back from Judge Markson saying, “You will have to rely on your memory from the testimony.”

Why the hell couldn’t we see the evidence? That was the one piece of actual evidence that we had, but it had to be filtered through the lawyers during testimony? We were all angry about it.

And we were stumped.

I went back and read the jury instructions again…and that’s when we found the pieces about a “reasonable hypothesis.”

The term “reasonable doubt” is a bit arbitrary. But “reasonably hypothesis” was clearly defined in our instructions. I can’t remember the exact words (though I read them aloud probably 20 times). But basically, it said that if there is any reasonable hypothesis in favor of the defendant’s innocence that is not overcome by evidence, then we must find the defendant not guilty.

Each time I read that aloud, I emphasized the word “must.” If we can come up with a reasonable hypothesis, then we cannot find him guilty.

One hypothesis was that this man was sleeping with her mother. And when that happens, children can act out. Especially if they are having sex in the same room as the child—who knows what the child may lie about. We know she lied about other things…

I cut up more papers and we took another vote.

The first eight votes were all “not guilty.”

My heart sank. We read the next four.

Not guilty.

Not guilty.

Not guilty…not guilty.

We were unanimous. I suddenly felt responsible. I asked everyone if they felt that by emphasizing the word “must,” that I was pushing them toward not guilty. Everyone agreed that I did not.

Nobody was happy with our decision, but we knew that—within the confines of the rules we were given—it was the correct decision.

“I know what my mind is saying, but my heart is saying something else,” one juror said.

I signed the “not guilty” verdict and handed it to the bailiff. A few minutes later, we were ushered into the court room. I quickly scanned the room and was relieved when I realized that Katie and her mom were not there to hear the verdict.

Luckily, I didn’t have to read the verdict. When the Judge read it, Al celebrated with his lawyer. I was staring into space.

What had I done?

We all left the courthouse in silence.

Aftermath

Since Monday morning, we were not allowed to talk to anybody about the case. Even when we went to lunch on Tuesday, we had to wear our juror tags and not talk to anyone about why we were on a jury. I avoided people for those three days, because I wanted to talk about it. I needed help, but I was not allowed to ask for help.

When I left the courthouse, I called my mom on my way home. Before I even got my first sentence out, I was crying hysterically. I don’t even remember the last time I had cried. I didn’t even cry when my ex-boyfriend broke up with me.

I had to pull over, I was such a mess.

I had friends over that night to drink wine with me, because I didn’t want to drink alone. And every time I told someone the story, they said “I’m sorry you had to go through that.”

But I didn’t go through anything. What about what Katie went through?

Sure, she might have been lying. But what if she wasn’t? Now, she thinks that adults don’t believe her. She knows her rapist is walking free. She knows what too many women know firsthand—that men can get away with sexual assault.

The next day, the Dane County District Attorney’s office called me to talk about the case and why we found him not guilty. I didn’t know they could do that, but I was happy to talk.

I explained that I wanted to find Al guilty. I think he did it. And also, what kind of asshole has sex with a mother in the same room as her kids? But I told the DA that I was pissed at the prosecution and the police for not getting the text messages or the hotel footage. How hard could that have been?

Sure, Al might truly be innocent, but what if he’s not? I’m sure there are thousands of cases like this out there where the defendant is guilty, but because of this arbitrary term called “reasonable doubt” or—in this case—“reasonable hypothesis,” there are rapists walking freely.

We have a tough enough time getting victims to even report their sexual assaults, but what does it say that when they actually do, we still can’t convict them.

This is why our judicial system is broken for sexual assault victims.

We rely so much on lawyers to feed us the information, and we’re not even allowed to see the evidence during deliberation. When both people might be lying, it always results in not guilty.

We lean so heavily toward the defendant, even when it’s a he said/she said thing.

I’m sorry, Katie.

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