Mean Justice

by Edward Humes

  Yet the DA still expected to win. Deputy District Attorney John Somers, who had so adeptly put Pat Dunn away, led the prosecution team defending the conviction. As he had in the Dunn case, he conceived yet another brilliant strategy, choosing to present almost no evidence and hardly any witnesses to rebut the weeks of seemingly overwhelming evidence and testimony put on by the defense team. To some observers, including the original Kniffen-McCuan prosecutor, Andrew Gindes, it looked as if the DA was rolling over like a beaten dog on this case, preferring to put the controversy to a quick end rather than fight for victory. Others, though, including Stan Simrin, watched the prosecutor in awe while, point by point, he showed how each and every defense argument being presented as new evidence to Judge Steubbe had in fact been hashed out in one form or another during the original trial. It was a canny tactic: if there was no truly new evidence, there could be no new trial. Proving innocence, or reproving guilt, was not the point.

  With an easy command over thousands of pages of testimony and a roomful of evidence, Somers cited reference after reference where the same ground had been covered thirteen years previously. Perhaps not as well, perhaps not as thoroughly, Somers told the judge, but questions about the interrogations of the children, the medical evidence, the psychiatric problems of the girls’ guardian, Mary Ann Barbour—all had been visited before. It was the “been there, done that” argument, and Somers was so convinced of the correctness of his position that he barely cross-examined some of the defense’s star witnesses. After all, if he was right, what they said didn’t matter.

  Somers had boldly sidestepped the defense lawyers’ carefully laid trap. They wanted him to go head to head with their case, for they knew that they could shred any witness who dared suggest that the case had been investigated properly. On those terms, in a battle of experts and evidence, the defense knew it couldn’t lose. And so did Somers. But in the peculiar logic of criminal appeals, it didn’t matter that, in today’s world, the case would never have been investigated in such an improper manner, or that, in all probability, the Kniffens and McCuans would never have been convicted in the first place with today’s knowledge and experts. What mattered was the question of whether or not there was new information momentous enough to declare the first trial fundamentally unfair. And if all the issues raised before Judge Steubbe had been confronted and dealt with in the past by judge and jury, even in the most minor and incomplete fashion, then they could not be revisited again, Somers argued.

  “There simply is nothing new about any of this,” Somers said time and again over the course of the two-week hearing, his small smile and quiet demeanor steadfastly impenetrable and confident. As his simple yet potentially devastating strategy became apparent, the defense team realized that if the judge—or the court of appeal—accepted his argument, the Kniffens and McCuans would die in prison long before becoming eligible for parole.

  And Somers did prevail on almost every point of contention. When Judge Steubbe delivered his ruling, moving down the list of ten separate claims by the defense,8 he agreed with Somers time and again. The questions about Mary Ann Barbour were old news. So were claims of withheld evidence.9 Even on the issue of bogus medical tests, the judge sided with Somers: It was not new evidence, just a disagreement between experts that had been argued during the original trial. The weight of scientific opinion may be much more in the defendants’ favor now, but that was not enough, Steubbe decided, even though he had heard from multiple experts who said there was no evidence of molestation at all.

  There was one point, however, on which the judge disagreed with the district attorney, finding there had been new evidence presented. It concerned the interrogation of the children and new research, unknown thirteen years earlier, that helped explain how and when children told the truth—and what might lead them to give false testimony.

  Psychologists and child-development experts assembled to testify in the case told the judge how they had been working for years to perfect techniques for police that would ensure unbiased and reliable interviews and interrogations, particularly when children were involved. Open-ended questions, in which the children use their own words rather than simply answering yes or no to pronouncements from adults, were essential, these studies found. Part of this research also involved learning what not to do, and in these experiments, it was found that just about anyone—but particularly children eight years old and younger—could be persuaded to make and eventually believe false statements about events they had not witnessed or experienced. Even false memories of painful events could be created, if the questions were sufficiently leading and aggressive, and if they were asked by someone in a position of authority. In one experiment, the judge learned, three out of four children claimed that they saw a school custodian hurt someone, when in fact, they had witnessed him simply mopping the floor. Another experiment saw three out of four children (and one out of four adults) persuaded, through aggressive and leading questions, to remember a past traumatic event (a painful vaccination) that never happened. Weeks and even months later, these false memories persisted.

  The high-pressure, suggestive techniques employed to create such false statements, Judge Steubbe learned through the course of the hearing, were the same methods Kern County prosecutors, social workers and investigators used whenever they questioned a child who they believed had been molested. In seeking the truth, investigators had made sure they’d never find it.10

  With a growing sense of horror, Judge Steubbe realized there was no way to know the truth in the Kniffen case—not now, and not thirteen years ago. The sensational headlines, the apparent mountain of evidence—the entire Witch Hunt—had been built on a foundation of fear, error and coercion. Well-meaning officials—at least, in Steubbe’s carefully worded ruling—had become victims of their own preconceptions and biases, questioning children not as potential victims, but as if they were trying to pry confessions from suspects. Maybe the children had been molested, maybe not. Perhaps they had been molested, but not by the individuals on trial. There just was no way to know. Given the manner in which the kids were questioned, anything they said was unreliable. Even the kids couldn’t know anymore what was true and what was simply a mixture of fantasy, guilt, remorse and wishful thinking. All Steubbe had to do was hear that tape-recorded interview of Brian and Brandon Kniffen from back when it all began, in which the boys denied everything but were badgered and cajoled into finally accusing their parents. How could that be the road to truth? the judge asked himself. How could men and women be imprisoned on the basis of such information, when the “statements” of the children, the heart and soul of the prosecution’s case, had been put into their mouths by the authorities?

  “Listen to that tape, your honor. That sets the stage. Listen to those two boys on that tape,” Stan Simrin had begged the judge. “That’s where it starts. The paranoia and near hysteria that prevailed in parts of this country started here in Kern County in 1982. And we urge you to put a stop to it. Here. In Kern County. Now.”

  To everyone’s surprise, Judge Steubbe did just that. It didn’t take years and more rounds of appeals, as the defense lawyers—and prosecutors—had anticipated. It took Steubbe only twelve days to issue a written ruling. Unmindful of the politics and the pressure of the situation, he did what no other judge in Kern County had ever done in a ring case: He found the Kniffens and McCuans wrongfully convicted, because the questioning of their children by the sheriff’s department and the district attorney, however well-intentioned it might have been, had hopelessly tainted the case. The trials and guilty verdicts had been fundamentally unfair.

  Miles away at the Kern County Jail, Scott Kniffen learned of the ruling hours later, when a sheriff’s deputy thrust a crumpled fax into his cell. It was a request from a news reporter for an interview about what it was like to be free. Brenda Kniffen, asleep in her jail bunk, heard around the same time, when other inmates turned up their radios and began banging the bars of their cells and shouting. She lay s
till as the words echoed through her tiny cell: You’ve won. You’re free. You’re innocent.

  District Attorney Ed Jagels was at the Republican National Convention in San Diego when the word came down. The news put a damper on Jagels’ celebrations, and when reporters tracked him down, he had little to say other than his belief that the case was now “unprosecutable”—meaning it would be impossible at this time to prove that the Kniffens and McCuans had done anything wrong.

  Jagels could have appealed Judge Steubbe’s decision. Or he could have retried the case and attempted to win a new conviction. But he did neither.

  With that, the first of the big ring cases—and the first big trial of Ed Jagels’ tenure as Kern County District Attorney—passed into memory. And after fourteen years, four more innocent people finally walked out of prison.

  • • •

  Neither Jagels nor anyone else involved in prosecuting the case has ever backed off their stated belief in the defendants’ guilt. Even as Kern County paid the Kniffens a $275,000 settlement in 1998, there were no apologies for the Kniffen or McCuan families. Of Steubbe’s decision, John Somers said that, though it was legally sound, “We simply don’t agree with his conclusions.”

  Given such an official position, it is unsurprising that the Witch Hunt’s legacy continues to haunt Bakersfield still. It is a legacy that has become increasingly uncomfortable for those in power: In 1998, two of the remaining defendants still in prison on molestation-ring convictions unearthed new evidence of Kern County officials’ improprieties.

  In January, and over the district attorney’s fervent opposition, seventy-four-year-old Harold Weimer was set free after thirteen years behind bars for the alleged molestation of three foster children in his care. He had been arrested in 1984 shortly after he was proclaimed Kern County’s foster parent of the year, having opened his and his wife’s home to hundreds of neglected and abused children over the course of twenty-six years. His arrest had stunned all who knew him and most of the children he had helped as a foster parent.

  The case against him began when a troubled twenty-seven-year-old woman claimed that Weimer had molested her when she was a foster child in his home about twenty years earlier. Her recollections came to the attention of authorities after she wrote a letter to the Bakersfield Californian on the subject. The woman had a history of drug abuse and of accusing others of molestation; her own mother suspected she hoped to use the Weimer case to make money through a lawsuit. Nevertheless, the Kern County Sheriff’s Department immediately removed four foster children then at the Weimers’ home; when they failed to accuse their foster parent of anything, one of the same deputies who had interviewed children in the discredited ring cases was dispatched to interview Weimer’s other former foster children. Two of these former foster children, one of whom also had a history of leveling false allegations of abuse, ultimately claimed to have been molested by Weimer four years earlier, and it was their testimony that led to his conviction and forty-two-year prison sentence.

  More than a decade later, United States District Court Magistrate Judge Sandra M. Snyder of Fresno found that Weimer’s trial lawyer was incompetent for failing to inform jurors of the case’s questionable origins—the jury never even heard about the woman whose allegations sparked the investigation—and for failing to bring out evidence that would have damaged not only the credibility of the two girls who did testify, but of the entire investigation. In a ruling that sounded the same points as Judge Steubbe’s opinion in the Kniffen case, the magistrate criticized the Kern County Sheriff’s Department for its “flawed investigatory techniques,” which could have generated false reports of abuse through the sharing of statements of one witness with other witnesses, refusing to accept children’s denials of being molested, repeatedly interviewing witnesses, failing to keep proper records of multiple interviews, and “implanting answers in the minds of the children witnesses.”11

  Snyder ordered Weimer released and recommended that his conviction be overturned. Her decision was not final, however, unless the federal judge who oversees the magistrate accepts the recommendation. Kern County is continuing to appeal the case, and officials hope to put the elderly Weimer back in prison.

  Ed Jagels called the decision to free Weimer “ludicrous” and “Kafkaesque.” He assured the Bakersfield Californian that, despite the overturned ring convictions, his office didn’t have any higher a reversal rate than other district attorneys in California. Of the previous ring-case reversals, Jagels said, “Obviously we think the court has erred in other cases.”12

  Within a few months, however, new claims of gross prosecutorial misconduct, hiding of key evidence and alleged perjury by Kern County officials surfaced in the case of Jeffrey Modahl, who had been serving a forty-eight-year prison term for supposedly being part of the Cox molestation ring.

  The case against Modahl had begun in 1985 during the height of the Witch Hunt, when several children accused brothers Anthony and Leroy Cox, then other members of the family, of molesting them. The evidence against the two Cox brothers was compelling—as it was against their father and three other family members—but the evidence against Modahl was ambiguous at best. In any case, the Cox case remains unique among Kern County molestation rings in that all of its members either remain in prison, have served their sentences completely or died in prison. It was not so much a ring as a large family that preyed on its own children. Even so, as often happened in that era, the accusations took a familiar course, replete with improbable descriptions of mass-molestation scenes, children hanging from hooks in the ceiling, photographic equipment—the same elements described in the other ring cases that, once again, could never be corroborated with physical evidence and which suggested the use of coercive questioning by authorities.

  Among the children interviewed during the initial investigation was a cousin to the Coxes, Modahl’s ten-year-old daughter, Carla. Although at first she did not accuse her father of any wrongdoing, after repeated sessions with social worker Velda Murillo and Deputy Connie Ericsson, Carla began implicating him. Out of four child victims in the case, she would be the only one who accused Jeffrey Modahl of being part of the “ring”; there was no other substantive evidence of guilt presented at his trial. Nevertheless, he was convicted and sentenced to more time than any of the others.

  Though Carla recanted after the trial, the Kern County District Attorney’s Office argued she had been pressured by family members into changing her story. Modahl’s motion for a new trial was denied in the Kern County Superior Court, and his subsequent appeals over the years failed.

  But in late 1997, a previously secret tape recording surfaced and was handed over to Modahl’s lawyers by the original trial prosecutor, Deputy DA Craig Phillips. The tape was of the initial interview of Carla’s half sister, Teresa Cox, the first victim interviewed in the case. Defense lawyers had repeatedly asked if such a recording existed, and a judge ordered any such tapes turned over to Modahl’s attorney, but Phillips never supplied it; he says he only just learned of its existence. Murillo and Ericsson previously had sworn on the witness stand no such tape recording was made. Murillo and Ericsson also swore that they never asked leading questions and never suggested the name of Jeffrey Modahl or any other suspect to the kids—the child victims did that on their own, Murillo and Ericsson said. Ericsson, testifying in the trial of one of Modahl’s alleged accomplices, swore he would never do that because “you can lead a person to say anything if you start suggesting.”13

  The newly discovered tape, however, appears to paint a different picture. In that crucial first interview in the case, Murillo and Ericsson do much of the talking, with Murillo telling Teresa that she believes the girl had been abused by numerous relatives, including Jeffrey Modahl—placing the twelve-year-old in the position of having to insist only Leroy and Anthony Cox were the culprits. The tape could have been damaging to the prosecution had it been turned over in time for Modahl’s trial, as the defense could have argued it show
ed the coercive methods used by investigators on the case. Later, at Modahl’s 1987 habeas hearing, it could have backed up Carla’s assertion that she had been coerced by her inquisitors into falsely accusing her father. Keeping the tape secret was illegal, Stan Simrin, Modahl’s new attorney, alleges, but it enabled Kern County to convict an innocent man.14

  The problems with evidence in the case did not stop there, however: Simrin’s investigation has revealed that Carla Modahl, before her father’s trial, had been taken to Kern County Medical Center for an examination by an expert often used by prosecutors, Dr. Jess Diamond. Like the tape, the results of that exam—and its very existence—were never disclosed to Modahl’s trial lawyers. Further, the DA vociferously and successfully opposed all attempts by the defense to have Carla examined by a doctor chosen by the defense, a position it had taken in other ring prosecutions.

  Simrin learned in late 1998, however, that Diamond’s exam records on Carla Modahl still existed, and that the doctor had found absolutely no evidence that the girl had ever been sexually abused. The exam contradicts early investigative reports in the case detailing Carla’s statements to Murillo and Ericsson in which she claims to have been repeatedly and painfully violated with various objects, as well as her father’s penis—abuse that should have been corroborated by Diamond’s exam. After the exam, Carla’s account changed. Her testimony against her father referred only to external sexual touching without penetration—a tailoring of her testimony by Kern County authorities to fit the results of the secret medical examination, Simrin has alleged.15

  “Egregious misconduct lay at the root of the prosecution’s failure to disclose the evidence,” Simrin told the Kern County Superior Court judge hearing Modahl’s habeas corpus plea for a new trial.