By Susan Goldsmith | The Oregonian | November 17, 2008
The first time Allen Scott saw Brad Holbrook was from Scott's seat in a jury box.
Holbrook was a strikingly handsome 32-year-old lawyer, but he wasn't trying the case. He was on trial, facing charges of sexually molesting a 10-year-old girl.
But as the prosecutor built his case, something didn't click for Scott. Holbrook's clean record, glowing testimonials from friends and family and shifting stories from the girl all seemed to undercut the state's portrait of him as a scheming sexual predator.
Scott was not alone in his doubts, and jurors deadlocked on the charges.
"You need proof in court, and there was no proof of anything," said Scott, who works at a tool and die company. "The whole thing was just crazy."
But the case didn't end there.
Holbrook was tried again a year later, and jurors in the second trial convicted him of one count of sex abuse, while acquitting him on two others.
Only two people, Holbrook and the girl, know what really happened a decade ago. Eleven jurors listened to scores of witnesses and decided he was guilty. Two attempts to overturn his conviction have failed. Others are pending.
The prosecutor, Cal Tichenor, says Holbrook's conviction was justified.
"The evidence was clearly there to sustain a conviction and the appellate courts have agreed with that," said Tichenor, now a Yamhill County judge. "The prosecution was fair. Both sides had a full opportunity to present the issues to the jury, and the jury made their decision."
Still, the case was so troubling to four of the original jurors that they filed sworn statements with the court complaining about the prosecutor. One juror went to the judge to express his outrage. All four took the extraordinary step of helping Holbrook's defense attorney prepare for the retrial.
Jurors compelled to act
No juror has been more dedicated to Holbrook's cause than Scott.
After the trials in 2001 and 2002, Holbrook was sent to an Oregon prison for 61/2 years. Scott kept in touch with him. And in June, when Holbrook was released, Scott and his wife, Diane, both born-again Christians, welcomed him into their Newberg home, ready to help him in any way they could.
All four jurors said they were moved to act because they felt the Yamhill County district attorney's office pursued the case despite glaring problems with the investigation and the accuser's story.
In the 1980s and '90s, scores of people were prosecuted and convicted based on allegations they were involved in child sex abuse rings. Many of those convictions were overturned after courts found serious problems with the investigations into those cases.
As a result, safeguards for professionals involved in investigating child sex abuse were put in place in Oregon and elsewhere to protect against improper interviewing of child witnesses. While not mandatory, the measures were designed to make the interviews more transparent and to avoid false allegations.
"I see a lot of interviews, and the interviews may be better today than 20 years ago, but many aren't good," said Stephen Ceci, a expert on child witnesses and child memory who teaches at Cornell University in New York and has written numerous articles and books on investigating child sexual abuse.
Ceci and Phillip Esplin, a Phoenix-based forensic psychologist and nationally recognized expert on investigating child sex abuse cases, are troubled by the Holbrook case.
The experts were consulted separately by The Oregonian. After reviewing investigative reports and testimony, both men concluded that in Holbrook's case investigators had failed to properly interview the accuser and ignored what they described as an attempt to tell them she hadn't been abused.
"I think that justice urgently calls for this case to be revisited," Esplin said.
An allegation of touching
Brad Holbrook's criminal justice saga began with a visit to a dying young girl, Chelsea Carpenter, in McMinnville. The 10-year-old leukemia victim was his niece, and she had two months to live.
Holbrook, who'd grown up in Oregon and attended Southern Oregon University as an undergraduate, came up to visit from California in June 1999.
While watching Chelsea and her sister, Holbrook found himself alone in the kitchen with a new friend of the girls'. The two were getting bean dip out of the refrigerator for everyone to eat. Chelsea's parents were out on an errand.
Soon after eating, the girl said she felt sick and wanted to call her mother. When her mother arrived, the girl reported that Holbrook had slipped his hand inside her shorts and touched her buttocks and vagina in the kitchen. She said she told him to stop and he did.
That afternoon, the girl's mother called McMinnville police. A detective interviewed the girl immediately, but Holbrook was not contacted for two weeks. From the beginning he insisted to family members and friends that he never touched the girl in any way. He had never been in trouble with the law and had interned at the Monterey County, Calif., district attorney's office. Friends, family members, former employers and colleagues were stunned by the accusation.
Three days after the initial allegation was made to police, the girl's mother took her to Juliette's House, a county-funded agency that teams with police to investigate allegations of potential child sex abuse.
There, therapist Michelle Warner and physician Dr. John Sandberg spoke briefly to the girl and her mother and Sandberg gave her a physical exam.
After the exam, the two recommended the girl undergo counseling "with a therapist skilled in treating children who have been the victims of sexual abuse." The Juliette's House officials also concluded the girl was a medically diagnosed victim of child sexual abuse even though, according to their later testimony, they had nothing more than the girl's own statements.
Esplin found fault with this.
"There was no basis in the physician's exam to conclude sexual abuse. The findings were nondiagnostic. The forensic interviewer should have said, 'I collected this information but can't render a diagnosis,' " he said.
Both Sandberg and Warner declined to comment for this story, but in court they defended what they and other county officials did in the case as appropriate and responsible.
The Holbrook investigation differed in several ways from the procedures Yamhill County put in place in 1998 to ensure child sex abuse investigations were conducted properly.
For instance, the records from police and Juliette's House reflect only a summary of what the girl said. The county and state sexual abuse investigation guidelines, which lay out best practices for investigators, recommend questions and the accuser's answers should be documented verbatim and recorded.
In the Holbrook case, investigators did not write down the questions put to the girl or her exact answers and only one interview with her was taped -- about six weeks after she initially talked to police.
"Probably didn't mean to"
That single taped interview would prove crucial to Holbrook's defense.
In the interview, the girl is recorded on tape saying Holbrook "probably" had only brushed up against her accidentally.
Warner, the Juliette's House therapist, asks the girl if she has anything else to add to her account of what happened. The girl replies, "When I was at the fridge, you know, and he touched my sides, after that he didn't put his hand down my pants, but he slightly went like this. And he touched my vagina, kind of, but I still had my pants on."
Warner then asks, "OK, so that was, like, touching your vagina on top of your pants."
The girl responds, "Yeah, but I couldn't, like, feel it" and later she adds, "I thought, well, he probably didn't mean to."
Records and court testimony show that neither Warner nor Sandberg or police detective Morrison Hantze, who were participating, pursued the possibility that nothing happened or that the touch she'd reported earlier was accidental.
Lyla Niehus, a juror in Holbrook's first trial, said it bothers her to this day that county sex abuse investigators did not follow up on the girl's statements.
It appeared to her that they had "already made up their minds he was guilty," said Niehus, who is among the four jurors who later criticized the prosecutor. "They didn't want to hear he was innocent. They weren't interested in that at all and didn't pursue it."
Warner said later in court that the girl had given investigators enough information to make an abuse determination and particular details about how the alleged molestation occurred were secondary.
"Making the distinction between front or back at that point did not seem especially important to me," Warner testified.
Ceci, the child memory expert who teaches at Cornell University, reviewed the transcript of the videotaped interview at The Oregonian's request. He said it appeared to him that county officials were so invested in prosecuting Holbrook that anything that pointed to his innocence was disregarded.
"The adults involved seemed to have lost all perspective," Ceci said. "The interviewer (Warner) was interested in getting the goods. The confirmatory bias is pervasive."
Confirmatory bias is when investigators ignore, overlook or dismiss information that points to the possibility that no abuse occurred.
Esplin, the forensic psychologist who helped develop child sex abuse interview guidelines for the National Institute of Child Health and Human Development, also found the transcript of the taped interview disturbing.
"There's no evidence they made any attempt to explore whether it could have been accidental and she made a mistake by reporting it and was trying to regroup," he said.
Prosecutor offers a deal
Before Holbrook's first trial began, Tichenor offered a deal: Plead guilty to one misdemeanor count of attempted sex abuse and do no prison time but be listed on the sexual offender registry for life.
Holbrook turned down the offer, unable, he said, to plead guilty to something he didn't do. A year and a half after the accusation was made, he went on trial.
Tichenor offered jurors a new theory, different from the facts alleged in the indictment. He said Holbrook had touched the girl twice, once by the refrigerator and again by the microwave. Her statements that he'd brushed up against her accidentally, Tichenor said, referred only to the first touch.
Police detective Hantze, Warner and Sandberg all acknowledged they'd never been told about a second touch by the microwave and it was not documented anywhere.
When the girl took the stand, she seemed confused about what she remembered. Asked by Tichenor what occurred, the girl said, "He grabbed my sides, and then you kind of reminded me like how he kind of touched my vagina with his hand from the outside of my shorts, but I kind of remember that, but not really."
Under questioning from Kent Gubrud, Holbrook's attorney, the girl, then 11, said she never told the police, the social workers or the doctor who interviewed her that Holbrook had touched her twice. Asked why, she said, "I don't remember" but added that she'd told her mother. Her mother also testified the girl had told her about the second touch but nothing in the investigative records show that the mother ever informed anyone else.
Contacted by The Oregonian, the girl, now 19, and her mother declined to be interviewed. Tichenor said in an interview with The Oregonian that he didn't fully understand what happened in the kitchen until the girl took the stand because the Holbrook investigation was not done thoroughly.
"I have no idea why details weren't noted. Neither the Juliette's House nor the police took a detailed statement about what occurred," he said. "They just didn't want to put this child through more questioning than was necessary."
Tichenor said the police detective believed Juliette's House would do a more detailed interview but that never happened.
"Nobody took a detailed, comprehensive statement of what happened to that child until she took the stand" in the first trial, Tichenor said. "They didn't act improperly. They had the interests of the child at heart."
James Woods, a professor of psychology at the University of Texas in El Paso who studies how sex abuse investigations are conducted, said a changing story about an alleged molestation suggests there are problems with either the accusation itself or the investigation.
"We do know consistency is important. A changing story has to lessen your confidence in their memory," he said.
Several jurors in the first trial simply didn't buy the new theory of the crime or much else for that matter. They deadlocked on the two charges after a trial that lasted nearly a month.
"The way they approached the story and tried to prove she was molested just wasn't right. It seemed to me that he maybe accidentally brushed her on the butt and that was it," said juror Milton Butz, another of the four from the original trial and a retired country club sales manager. "I just didn't believe one word of any of it. After hearing the case, I was just thoroughly disgusted."
The second trial
For Tichenor, this was his first sex abuse case that ended in a mistrial because the jury couldn't reach a verdict. He wasn't sure what had gone wrong. He chalked the deadlock up to the unpredictability of juries.
In March 2002, Holbrook's second trial began. For this trial, Tichenor had gone back to the grand jury and emerged with a new indictment that charged Holbrook with touching the girl twice.
The second trial went pretty much as the first until Holbrook's attorney called friends and colleagues to testify on his behalf.
During cross-examination of two of Holbrook's witnesses -- a former legal colleague and an ex-employer who ran an after-school program -- Tichenor asked the women whether they knew Holbrook had had a "secret correspondence" with a 14-year-old girl. Both said no.
Tichenor later acknowledged that all he had to base his question on was an "unconfirmed suspicion," which neither he nor a McMinnville police detective could find any evidence to support.
Nevertheless, Tichenor said, by putting on witnesses to vouch for his character, Holbrook opened the door to the question. Gubrud, Holbrook's attorney, attempted to object to the questioning but Judge Richard Barron allowed it.
The Oregon State Bar would later reprimand Tichenor for using unsubstantiated, unconfirmed rumors in an alleged violation of evidentiary rules for attorneys. Tichenor fought the sanction and prevailed at the Oregon Supreme Court, which ruled the bar had brought the action under the wrong disciplinary rule.
"The Supreme Court said that's not the job for the bar and it was not inappropriate conduct and what I did was ethical," Tichenor said.
Laird Kirkpatrick, the former dean of the University of Oregon law school and the bar's expert in the case against Tichenor, came to a different conclusion about the ruling.
"Even though this particular case was dismissed on procedural grounds, it stands as a warning to prosecutors that trying a defendant on the basis of highly prejudicial innuendo that is found to be unsubstantiated can result in disciplinary proceedings against the prosecutor," said Kirkpatrick, now a professor at the George Washington University School of Law in Washington, D.C.
The jurors decide
The jurors knew nothing about the evidence controversy. They heard two weeks of testimony, which included new witnesses who vouched for the girl's credibility. Behind closed doors, the panel struggled to come to a consensus.
"We decided that we didn't feel there was enough evidence from her testimony alone that it was as sexual as she said but we felt like something sexual happened," said juror Linda Ogles, who voted to convict Holbrook in the second trial. "There was a young child's life involved and a man's life, and once you're a registered sexual offender, it follows you all your life. We knew that's what would happen but we felt that was better than letting someone go."
Ogles said jurors argued over whether the girl could have been making the allegation for any other reason but had no evidence or information to suggest she'd ever done anything like this before.
But, in fact, she had. Jurors were not told the girl had made a similar allegation against a boy when she was 3. She accused a 5-year-old of touching her vagina, and police and social workers were called in. The 1993 investigation determined the girl's allegation against the boy was "unfounded."
The girl's mother testified the girl and her older sister engaged in all kinds of sexualized behavior at the time. "No, it wasn't normal," the mother said, "but they were doing it to get his (their father's) attention." The allegation was made soon after the girl's parents split up.
Judges in both of Holbrook's trials excluded the information after determining there was no indication the girl's earlier allegation was intentionally false, which would have required them to allow it into evidence.
Ogles said their decision-making largely boiled down to who was more convincing -- the girl or Holbrook.
"I don't believe he was credible," said Ogles, a retired phone company employee. "When she got on the stand, she never wavered from anything that she said. It was as if it was still current in her mind."
But one juror refused to believe any of the prosecution's case.
"I was the only one who didn't vote him guilty on any count," recalls Christie Stark, a bookkeeper for a foster care agency. "I've seen kids come through the office who had been sexually abused and felt pretty strongly about the horrible things that happened to these kids. I was surprised they wanted me on the jury and then surprised I wasn't convinced he'd done anything to this little girl."
Jurors acquitted Holbrook on the two more serious charges. They convicted him 11-1 on one count of sex abuse for touching the girl's buttocks.
Holbrook's new home
The case continues to weigh on some jurors' minds.
"There was so much evidence things weren't done properly," said Niehus, 62, a juror from Holbrook's first trial. "It bothers me to this day. I think they got an innocent man."
Butz, 81, said he thinks of Holbrook often. For a while, Butz said, he kept in touch with Holbrook's attorney.
"He's just a great kid and destroying his life and his ability to practice law is just a disgrace."
Butz said he had a message for Holbrook, now 41. "I think Brad should get his name cleared," he said. " And if he needs any help from me, I would do anything for him."
Ogles, the juror in Holbrook's second trial who voted to convict, began to cry when she heard the girl had made a previous allegation involving touching.
"That upsets me," Ogles said. "We didn't know that piece and had we known it, it might have made a big difference in the way we voted."
Holbrook has raised that issue along with many others in the appeals he has filed since his conviction. Friends and family raised $50,000 to hire noted Portland defense attorney Stephen Houze for one of his appeals. So far, two have been denied. More appeals are pending in state court.
Holbrook's prison term ended in June, but he has to contend with considerable restrictions that are in place until 2012.
He is not allowed to go anywhere children may be, including libraries, parks, malls, weddings or family reunions. He is allowed to grocery shop only after 8 p.m. or before 8 a.m. For the rest of his life, he is required to register as a sex offender.
"After six years of being locked up and deprived of my liberty, you'd think you could come out and restore your life, but in fact it's the opposite," said Holbrook, who has lost his law license because of his conviction. "It's almost as painful as being locked up. I can't get a job parking cars."
Scott, the juror who invited Holbrook to live with him after his release, says he would like to see him stay for a while. Because Holbrook is now a registered sex offender, their grandchildren cannot come to the house and visit. Instead, the couple go to visit them.
Diane Scott, Allen Scott's wife, said they hope to make Holbrook's life a bit easier.
"What happened to Brad is wrong and unfair," said Scott, who sat through some of the second trial as an observer. "I'm so glad he's with us. To me it's a no-brainer because we love him."