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THE CASE OF ALICIA W. REPORT NO.

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A Report by the 1991-92 San Diego County Grand Jury June 23, 1992

"THE CASE OF ALICIA W." (A Report by the 1991-92 San Diego County Grand Jury)

INTRODUCTION Sometime during the night of May 8, 1989, an eight year old child was removed from her home, brutally raped, and sodomized. Two and a half years later her family requested assistance from the County Grand Jury to stop a pending termination of parental rights. This report is the story of the nightmare endured by this child and her family during the two and a half years they spent in the San Diego County juvenile dependency system. With the assistance of the Attorney General's office, the San Diego County Grand Jury conducted a civil watchdog hearing into the case of Alicia W. as part of a broad study of the juvenile dependency system and its components. The facts of this case are reported in considerable detail, in order to illustrate the inherent bias of the system and its inability to detect or correct errors within its components. These errors were numerous. They were errors of omission and commission, made by the social workers, physicians, police investigators, criminalists, prosecutors, court appointed therapists, attorneys, and judicial officers, as well as others connected to this case. In late October, the Jury received a citizen's complaint which led to the examination of the Alicia W. case. (APPENDIX A) The District Attorney was then in the process of prosecuting the father, and County Counsel was still involved in the dependency case in Juvenile Court. There were allegations of wrongdoing by the initial Deputy District Attorney on the case, as well as the Deputy County Counsel. In order to avoid a conflict of interest or the appearance of a conflict of interest on the part of the District Attorney, the Grand Jury requested counsel from the Attorney General's office in the pursuit of the inquiry. In response, the Jury was provided the assistance of a Deputy Attorney General. The Jury subpoenaed documents from the Department of Social Services, the Center for the Protection of Children, County Counsel, the private therapist in the case, Naval Investigative Services, the San Diego Police Department, the District Attorney, Children's Hospital, and Voices for Children. The Jury had already reviewed the Juvenile Court file extensively. Witnesses

were subpoenaed and testified. By the time the Grand Jury became aware of this case, it had been in the Juvenile Court for more than two and a half years. The case of Alicia W. was unique in two significant aspects. 1 First, there was physical evidence to prove that the father did not rape his daughter, and second, there was physical evidence which clearly implicated a stranger to the family did. (After the Grand Jury became aware of this case, the criminal court handed down a finding of true innocence.) Despite the existence of new evidence, the Department of Social Services, through its counsel, the Deputy County Counsel, fought efforts to delay the hearing which would terminate the parental rights of Alicia W.'s mother and father. The Juvenile Court had already refused on two occasions to grant such a continuance while new evidence was being tested. Counsel for the father attempted to speak with the Director of the Bureau and was referred to Adoptions. He hand-carried documents regarding the innocence of his client to the Manager of Adoptions. Five days later, he discovered that they were still unread. All attempts to get a continuance on the parental rights termination hearing were denied. The Jury initially spoke with the Deputy Director of the Department of Social Services. She was asked if she would intervene in a case in which an injustice had occurred. She assured the Jury she would. With the permission of the parents and counsel, she was given the information the Jury had on the case. Within a day she was able to confirm this information, and within three days the Department returned to court and stipulated to vacating the termination of the parental rights hearing, and further allowing Alicia's mother unsupervised visitation, the father visitation in therapy, an immediate change of therapists, and a reunification plan to proceed with all due haste. It is the Jury's belief that the Deputy Director responded rapidly, out of a legitimate desire to right an injustice, and for this the Jury commends her efforts. Unfortunately, this was the first, last, and only reasonable response received by Alicia W.'s family in the years they were caught in the system. They received no official apology, no offer to repay the vast sums incurred which had bankrupted the entire extended family, and no recognition of the devastation in their personal lives. They did receive a phone call from one member of the Board of Supervisors,

who expressed her personal apologies and sympathies. (The referee who ultimately granted the dismissal of the petition in Juvenile Court expressed his apologies to the family in the final hearing as did minor's counsel.) From examination of the evidence, it is clear that County Counsel continued to push for termination of the Alicia W. family unit, in spite of the evidence showing the innocence of her parents. Even after Alicia had been returned to her home and the criminal court issued a finding of "factual innocence", the Deputy County Counsel assigned not only vigorously defended her position, but severely criticized the Grand Jury for interfering 2

and the leadership in the Department of Social Services for responding. County Counsel saw no reason why there needed to be any hurry to return this child to her family. Months later the Deputy County Counsel assigned to this case offered many scenarios for how the father "could" have been involved and refused to acknowledge outright evidence of the innocence of Alicia's parents. Ironically, the Deputy County Counsel who handled the Alicia W. dependency proceeding was the same Deputy District Attorney who prosecuted the man who most likely assaulted Alicia. In July of 1989, this attorney, in her role as Deputy District Attorney, filed a declaration requesting the blood sample of a man who was in custody for sexually molesting several little girls who lived in the same Navy housing unit as Alicia. The prosecutor was attempting to connect the man with Alicia and another sexuallyassaulted child who also lived in Navy housing. In attempting to obtain this sample, the prosecutor used the verbatim description of the attack Alicia gave in her initial statement to law enforcement officers-a version of events this attorney rebuffed in attempting to terminate the parental rights of Alicia's mother and father. While the errors and mistakes which plagued this case are tragic, more disturbing is the fact that the system appears designed to create or foster them, to leave them untested and uncorrected, and ultimately to deny or excuse them, all in the name of child protection. The purpose of this report is to illuminate this case for the benefit of all county and supporting agencies involved in the dependency process, to allow them independently to evaluate their practices and decision-making processes within the context of the system at work in the hopes that such a combination of errors will never again occur.

EARLY INVESTIGATION PHASE On the night of May 8, 1989, eight-year old Alicia W. was raped. Alicia and her family had entertained the next door neighbors at a family barbecue earlier that evening. All adults in attendance told the police that the father drank no alcoholic beverages at this barbecue. Alicia went to sleep in her own bed. The next morning, her father arose early to go to work. He checked Alicia, and she appeared to be sleeping soundly. He left the home. The mother arose, and children began arriving for her

in-home day care. Alicia was awakened for school A few minutes later, she complained to her mother of discomfort on urination. This was not unusual. Alicia had a personal history of urinary tract and bladder infections and a family history of congenital kidney problems. Alicia's mother has one kidney; her paternal 3 uncle also has one kidney. Both suffer from chronic problems. The uncle has now received a donor kidney from his sister. Her mother will need a donor kidney soon. (This history was welldocumented in the medical records the family provided to the Juvenile Court. Those original documents were never returned to the parents despite several requests.) Alicia's mother noticed drops of blood on Alicia's sheets and called the father at work asking him to come home and take Alicia to the local NAVCARE. (The mother does not drive.) While waiting for the father to return, the child changed her clothes and watched TV. She did not appear to be in any discomfort. The mother arranged for coverage of the day-care children, the father arrived home, and within an hour of the child's initial complaint, the parents and Alicia arrived at NAVCARE. At NAVCARE the child sat in the waiting room watching TV and reading books with her parents, while waiting to see the doctor. Neither the parents nor the receptionist noticed any discomfort. (This fact is important, as the mother was later faulted for not calling 911 immediately. There was no indication to the mother that this was more than a routine urinary tract infection.) The doctor examined Alicia in the presence of her parents and discovered that she had been severely raped and sodomized. He asked her what had happened and she said she didn't know. Her stunned parents asked her what had happened and she couldn't/wouldn't tell them either. (The doctor would later comment in an August report on the amount of blood on her night clothes. This "fact" could not accurately have been reported by this physician, as Alicia was wearing a sweat suit when she went to NAVCARE, and there was no blood visible to an observer. This flawed, after-the-fact reported observation would later be used by others to suggest a lack of parental concern.) The NAVCARE doctor called CPS. It took almost two hours for him to reach CPS and for CPS to respond. CPS's report was timestamped at 11:03 AM. While waiting for CPS to arrive at NAVCARE, the child appeared completely normal and unconcerned by what had happened to her and her present condition. The parents held the

child in their laps during the period. The father called his ship and advised he would not be returning to work that day. A CPS emergency response worker (DSS ER) arrived and interviewed the family. That interview primarily concerned family history. In the narrative of that interview, the response worker focused on what the Jury learned through testimony were "red flags" to molest. These included: 1. Father in the Navy [not unusual in San Diego]; 2. Mother an adult molested as a child (AMAC) [yet no documented correlation between a molested mother and 4 3. 4. 5. the male, child population]; 6. Family has no relatives in the San Diego area and has not been in the area long enough to have many friends [not unusual for a Navy family]; Child denies any sexual touching by father or anyone else [characteristic of "denial" and innocence]. risk to a daughter]; Father describes himself as a recovering alcoholic; Father states that he formerly drank to the point of occasional blackouts; Sibling (6 years old) has attention deficit disorder (A.D.D.) [a condition which is diagnosed in 7-lo°~~ of

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All of this information was volunteered by the parents during an interview of less than an hour. There was no "positive" family information about the parents in this report except that they were very cooperative and appeared appropriately concerned. While DSS ER did not express a conclusion, his opinion that this was an "in house" family molest was revealed "between the lines". Instead of the red flags being used as indicators of possible molest, they were relied upon as evidence of molest. More damning, the Child Abuse Unit of the San Diego Police Department responded, instead of the Sex Crimes Unit. Testimony indicated that this occurred only because Child Abuse detectives happened to be available. The Jury believes that this case was prejudged from the beginning by either, or both, the reporting party or the person

receiving that report. For example, in the absence of any positive evidence, the Child Protective Services form, processed at 11:03 AM, May 9, reflected "reported abuser" as "father?". The original reporting physician at NAVCARE is reported to have said that he told the parents that Alicia had been molested, and the father began to cry uncontrollably. Mother also cried. This was not noted. The SDPD dispatch operator who received this report sent the Child Abuse Unit with the result that a unit which deals primarily with familial or "in house" molest investigated the case. The predisposition of this infortuitous response placed the case on a track leading to a charge and assumption of "in house" molest. After several hours at NAVCARE, Alicia was taken to the Center for Child Protection (CCP). In a frequently quoted letter offered in the Juvenile Court at several crucial contested hearings, a Center physician (CCP MD DIR) wrongly attributed this passage of time to the parents: "If her mother saw her (and saw 5 the bleeding) early in the morning, why did she delay taking her for care for three hours or so?"

THE CENTER FOR CHILD PROTECTION AND CHILDREN'S HOSPITAL At the Center for Child Protection, Alicia received a medical "evidentiary" examination by a center physician (CCP MD). During the course of that examination, Alicia told the doctor about a man who took her through her bedroom window. The doctor did not include that statement in the narrative report. In fact, the CCP MD wrote, "at this time there is complete denial from this little girl as to the perpetrator of these injuries to her." Nor did the doctor include Alicia's statement in the medical evidentiary findings, even though the doctor stated in an August letter to the Deputy District Attorney (DDA JUV), some three months later, the following: "I told Alicia that she must have been really hurt by someone, and she then calmly replied that a man came through her bedroom window and took her out and hurt her." The doctor went on to discount this story as highly unlikely. Regardless of the doctor's opinion of the child's veracity, there is a space on the medical evidentiary form for the "chief

complaint in the child's own words." Proper procedure would dictate that Alicia's statements to the doctor be included there. Instead, the doctor reported there was "total denial" from Alicia. This "denial" can only be attributed to this doctor's assumption of what had happened to Alicia, namely, "in house" molest. Alicia's only "denial" was denial that her father did it-the only response the system apparently was looking for. After the medical evidentiary, Alicia was questioned by one of the SDPD Child Abuse detectives. Alicia gave a detailed description of her assailant, a description of his car, and the clothes he wore. At the time the detective and the evidentiary social worker at CCP argued about whether the detective was "leading" the child. The social worker discounted the child's account. The social worker decided not to do the interview of the child that day because, in her view, the child's testimony had been "tainted" by the detective. The interview was rescheduled for more than a week later. It was not noted anywhere by anyone that the child had given the abduction account to the Center for Child Protection doctor before being questioned by the detective. The DSS Court Investigative Social Worker (DSS CI) filed a court "gram" on July 27, which stated that the CCP social worker told her that she was present at the time of the interview of Alicia by the detective. The CCP Social Worker (CCP SWl) is 6 quoted by the DSS CI, saying: "she and the staff of CCP had already agreed that the child was too traumatized to be interviewed . . . the detective proceeded to question the minor. . . asking the minor leading questions as to who the perpetrator was . . . the police were in the process of investigating other molest incidents and that the questioning about an unknown intruder coming into the house was a concept that the minor readily agreed to, consequently, preventing the minor from further disclosing actual events." This very misleading statement (as is explained on page 7) was later used by DSS CI for purposes of thwarting a court-ordered plan to appoint a third party caretaker (the paternal grandmother) so that Alicia could return home. While these various procedures were going on, the parents

were in the waiting room of CCP. They were not allowed to see their daughter. They were there for hours. They asked many times to see Alicia and were refused. The Jury was told that Center procedure allows for a parent to be with a child. The CCP SWl later wrote to the DSS CI that in all of her years, she had never seen parents "so unconcerned" about their child. This same social worker had told the family earlier that if they showed any emotion, they would not be allowed to have contact with Alicia. Thus, parent compliance with CCP orders was turned against them. (The social worker wrote this, knowing it would be used in Juvenile Court proceedings.) It was decided that the child should be scheduled for surgery. She was taken to Children's Hospital under an emergency detention. The parents were not allowed to be with her. The mother was promised that she would be able to be with the child after surgery, as long as she did not discuss the rape and had a nurse with her in the room. That promise was broken, and Alicia did not see her mother for many weeks. The Grand Jury was unable to determine who was responsible for that decision. It is believed that it was a staff social worker at Children's Hospital. While the child was being prepared for surgery, and with no explanation to either the child or the mother, the mother was forcibly escorted by hospital security out of the hospital under protest. Despite the mother's availability, medical history for the surgery was given by Alicia, an eight year old child. The mother testified that the surgeon expressed his outrage about the mother's removal from the hospital, and thus the increased risk to Alicia, when he called the parents with the results of Alicia's surgery.

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Of equal importance, this child endured a traumatic event, surgery and hospitalization, without the solace of any member of her family. Furthermore, there is no record in the logs of Hospital or the social worker logs of anyone explaining to this child why her parents weren't there. She had a nurse call her parents, and, when her father answered, he had to hang up without saying anything, because he was under orders from the DSS CI not to speak to Alicia. After that phone call, the parents called both the hospital and the DSS CI and asked that someone explain the circumstances to Alicia and tell her they were sorry they had to hang up and they loved her very much. There is no record of anyone giving Alicia that message. There is a record of the parents' calls and of Alicia crying for her parents. Given the mother's agreement to be with Alicia with a nurse in the room and not to discuss the rape, the Jury questions how anyone could consider this action "in the best interests of the child."

POLICE INVESTIGATION While the parents were at CCP the San Diego Police Department detectives (SDPD DET1&2) questioned them. By all accounts, the parents cooperated fully. The father accompanied the detectives back to the home where physical evidence, including the child's clothing and sheets, was recovered. Fingerprints from the window were taken, and a footprint outside the window was found. The father asked that the detectives take a mold of the footprint. The detectives were not able to do so, but they photographed the footprint impression. The following day, the father was interrogated further when he voluntarily accompanied the detectives to the police station. At some point in a long interrogation and after numerous accusations, the father stated, "you're so sure I did it, but if I did I sure don't remember it". This statement is treated throughout the case as an admission of culpability by the father. Detectives and prosecutors offered this statement as a partial admission. The Jurors were disturbed that this statement could be uniformly construed in this way and not considered as an expression of frustration, shock, or anger. Consistently, the contemporaneous records of the investigation and social worker notes indicate that no alternative to familial molest was ever seriously entertained. The next day the father voluntarily submitted to a polygraph and a rape kit test. The polygraph was rated as "inconclusive". Father and father's attorney hounded the police for months

regarding the results of the rape kit test. The father felt certain it would exonerate him. The Jury questions the length of time it took finally to conclude that the rape kit test would not provide relevant evidence. - In order to do this test the police needed semen. The erroneous report that there was no semen on 8 Alicia's clothing would not come until late July, more than two months after the rape. This was a procedural breakdown which seriously handicapped the defense in Juvenile Court. The delay in obtaining these results is professionally inexcusable and the determination that there was no semen when, in fact, there was, is professionally unconscionable.

SOCIAL WORKER INVESTIGATION The DSS CI, who was from the Court Investigative Unit, was assigned to Alicia's case on the morning of May 10. The evidence indicates that she believed that this was incest (or "in house" molest) from the moment she received the case. She remained on this case until the end of December. DSS Procedure dictates that the Court Investigative SW should stay on the case through the dispositional phase and then transfer the case to the Maintenance and Reunification Unit. However, it required a court order some six weeks after disposition for DSS CI to be removed from Alicia's case. DSS CI was responsible for the investigation and for preparing the social studies for the contested jurisdictional and dispositional hearings. She also prepared documents for the various other hearings which occurred in this case. She immediately started the child with a- therapist she chose, and told that therapist that she believed the father had molested the child. This therapist has a large percentage of molest victims as patients. She is not well-versed in sexual assault issues. DSS CI placed the child in a confidential foster home. She controlled and strictly limited visitation and telephone contact. When the second foster mother expressed the belief that the parents were appropriate and that Alicia was desperate to go home, DSS CI removed the child from that home and filed a complaint with licensing, in a successful attempt to have the foster home license removed. Alicia was placed in a third foster home. These parents were in the "fost-adopt" program trying to adopt a baby girl.

The DSS CI wrote pages and pages of reports. Despite the many positive aspects of this family, nothing positive was ever reported in these reports. She concentrated solely on the negatives, and she enlisted the apparently willing help of the Center for Child Protection to buttress her conclusions. The CCP Director (CCP MD DIR), who never saw Alicia or her parents and did not view the evidentiary video, wrote a several page letter in which he all but claimed to have "solved the crime." The DSS CI and ultimately the court treated this letter, a letter by the CCP examining physician, and a letter by the CCP evidentiary SW as evidence instead of the opinions they were. Moreover, they were opinions based on "facts" which were either erroneous or 9 untrue. These letters overreached the reasonable, objective, professional standards expected of an organization that has great power and influence in the field of children's issues. On July 17, Alicia saw her father for the first time since the rape. (She was already in therapy with a therapist who believed the father was guilty and had told Alicia it was OK to tell that Daddy did it). The visit was supervised by DSS CI and observed through a one-way mirror by father's attorney. The child ran to her father, sat on his lap, and was very reluctant to leave. DSS CI reported this very positive encounter, "the visit was without incident . . . the interaction between the minor and her father was appropriate and they appeared to have a pleasant visit." This is as positive a remark as DSS CI made in any social study in this case. However, it does not accurately reflect either the parents' testimony or the contemporaneous notes made by the father's attorney of the meeting. The Grand Jury has already expressed its concern about the role of the Court Investigative Social Worker (Grand Jury Report #2, "FAMILIES IN CRISIS", p. 29). This social worker is placed in the untenable position of both acquiring evidence for the "prosecution" of a child abuse case and providing necessary services to a family that does not trust her/him.

FAILURE TO CONNECT OTHER MOLESTS/ASSAULTS WITH ALICIA Beginning in late April, before the rape of Alicia, the same SDPD detectives who responded to the NAVCARE call were involved

in an ongoing molest investigation. These molests were of four little girls who all lived in the same Navy housing project within a half block of Alicia. This investigation took well over a month as the police detectives collected evidence to charge a previously convicted child molester, who was the friend of the parents of one of the little girls. The story unfolded gradually, as the children told more and more about the molests. As the investigation unfolded, an unusual feature of the perpetrator was the fact that he entered through a window. These children were all interviewed individually at the Center for Child Protection. What is important about this investigation is who knew what and when they knew it. The interviewer at the Center on the day of Alicia's rape accused the police officer (SDPD DET2) of feeding Alicia questions and leading her about her perpetrator. She later stated that this detective led the child with the story about being taken out the window, because these detectives were working 10 on another series of molests where entry through windows were involved. In fact, on the day of Alicia's rape, police records indicate that the information about windows in the other molests was unknown and did not surface for the first time until May 19, when it was provided to the police by a Shore Patrol officer. One of the molest victims confirmed the Shore Patrol information to the SDPD detectives on May 23. The children were not interviewed at CCP until mid-June. Furthermore, the interviewer at CCP (CCP SW1), in her August 9, letter to the D.A. discounts Alicia's statements to the police as a "vague scenario that may have led up to her genital injuries." The police report of this interview reads: "A man came in though my brother's window and carried me out. The man said he was my uncle, but he's really not. He was a white male, 20's, a little taller than my mom (5'5"), short brown hair, slight freckles and a pimple on the lower right side of his lip. The man wore a short-sleeved white shirt with red stripes and brown pants. Once he carried me outside through the window, he put me in a car. The car was green like my grandpa's. He drove me around the corner close by my house and stopped by a grassy area near a brown fence." For some reason, all assumed from this statement that Alicia

was saying she had been raped outside on the ground. Alicia never said that she was taken out of the car. An 8/9/89 letter from the CCP MD DIR states, "If she was taken outside and raped, why were there no signs of an outside environment such as dirt, grass, or twigs on her clothing"? Police reports indicated that some of the other children molested at this time referred to the assailant as "uncle." Further, this was not a vague description. In fact, Alicia's description played an important role in the eventual identification and conviction of the serial attacker for the assault of another child, four-year-old Nicole S. On May 13, 1989, Nicole 5. was removed through her bedroom window in a nearby Navy housing project and kidnapped for the purpose of sexual assault. Her parents heard a window slam, jumped up, found the child gone, and immediately notified the police. Several hours later, she was found in National City at a telephone booth. She had been sexually assaulted. There were no clues as to the identity of the perpetrator. Even in this scenario, the Navy father was suspected. However, the child was not removed from parental custody. Coincidentally, Alicia W. and Nicole S. had the same evidentiary interviewer (CP SWl) at the Center for Child Protection. This is the same interviewer who saw Alicia on the 11 day of the rape and who decided that the police detective was "leading" the child. Alicia was finally interviewed on May 15, and Nicole S. was interviewed May 13. Alicia said in her interview that she knew her assailant was a man, "I could tell by his face," and that she had seen his face in her brother's window. The CP SWl did not follow up these statements with any questions. Nicole S. stated, "he grabbed me on the bed. The stranger grabbed me. I thought it was my daddy, but it was this stranger." The child indicated that the stranger who had removed her from her bedroom had a "white truck". Nicole S. described a "white truck." In fact, she was taken in a white truck. This seemed to contradict Alicia's statement about a green car and might lead one to believe that these were not connected. In fact, Carder did have a green car at the time of Alicia's rape. He reported to the police on May 23 that the green car was stolen. This information was almost immediately known to the Sex Crimes detectives investigating the assault of Nicole S. Unfortunately, that stolen-car report was never passed on to the Child Abuse detectives, and they apparently never ran a DMV check

on Carder. These two interviews were significant in several ways. The CCP SW 1 interviewer did not follow up on any of the statements made by Alicia W. The CCP interviewer did not make use in any way of the earlier information collected by the police officer. The CCP interviewer refused to see the connection between these two very similar crimes; she found it credible that Nicole 5. was taken through a bedroom window, but incredible that Alicia W. was similarly taken through a bedroom window. Also of significance is a statement which the interviewer transcribed in her narrative of the interview and which surfaced throughout the history of the case. The interviewer asked Alicia with whom she would feel safe. The interviewer reported Alicia's answer as, "my mom and my brother." Alicia very clearly stated on the tape, "my mom, my dad, and my brother." The omission of the reference to her father is significant. There is some question as to whether anyone ever reviewed that video, as no one ever questioned the written narrative of the interview which was extensively quoted for two years. The CCP MD DDIR wrote one of the letters which refers to this interview and later acknowledged that he never reviewed the video. The Sex Crimes Unit focused on a suspect in the Navy housing series because of a lead given them by one of the Child Abuse Unit detectives (SDPD DET1) involved in Alicia W. He read about the abduction in the newspaper and noted its similarity to the rape of Alicia. He contacted a detective in the Sex Crimes Unit. Ironically, this assault was by far more difficult to solve than that of Alicia. There was no prior connection between the suspect and Nicole S. SDPD DETl was also involved in the other Navy Housing molests. He noted the similarity in "method of 12 operation" of these events. Negligently, the detective did not follow through to connect Nicole S.'s perpetrator as the perpetrator of Alicia W.'s rape. No one ever asked these other molest victims if they knew Alicia. No one ever asked Alicia if she knew them. Alicia could easily have been taken to see any one of the girls to see if she knew them. They were the same age and lived within a half block in Navy Housing!1 This would appear to be a routine procedure 1Alicia has subsequently told her parents that the man who raped her "stayed" at the home of one of her friends. She named this friend and it was the name of the child with whom the

of a competent investigator. On May 23, there was a second attempt to break into Joshua's bedroom. Mr. W. had installed a burglar alarm system on the windows. The alarm went off. The police were called. A handprint was found and taken. Several hours later the alarm went off again. The police came again, and a second set of prints were removed. The police officers assured Alicia's family that these fingerprints would immediately go to the Child Abuse Unit. No one disputes this scenario of the events of the night of May 23. Various testimony taken indicated that these fingerprints were lost. There was no record of them in the physical evidence record sent to the Grand Jury. The treatment of the physical evidence in Alicia's rape has received a great deal of attention. For some reason the presence of semen on Alicia's clothing was overlooked by the criminalist (SDPD CRIM), and the clothing was not examined again until two years later. The police detectives, and later the criminal Deputy District Attorney on the criminal prosecution of this case, blamed this failure on inadequate and antiquated equipment in the crime lab. While the Jury does not debate the state of the lab equipment at that time, it does note that semen was correctly identified on Nicole S.'s clothing within a day of her assault which was within a week of Alicia's rape. Alicia's clothing was not the only physical evidence in the case, nor was it the only evidence mishandled. There was also the photograph of the footprint taken from outside the bedroom window. That footprint proved, more than two years later, to be a close match with that of the serial suspect. A study of police procedure indicates that this should have been checked at the time of the suspect's arrest. As in almost every other misstep in the case, the prevailing bias of an "in house" molest and the father's guilt appears to be responsible for the failure to investigate.

Members of the Grand Jury visited the Navy Housing complex where Alicia lived. Current residents demonstrated how easy it is to break into locked windows from outside. Many of the young children who live there are quite accomplished at this. The Jury was informed that Alicia's brother, age six at the time, demonstrated to the police how he was able to enter a locked suspect stayed. Alicia said she never knew this man's name as her friend called him "Uncle". 13

window. These windows are low to the ground and large. It is relatively easy for an adult to step onto the ledge and into a room. This fact was misrepresented to the court by the DSS CI. As an aside, current residents who lived there at the time of Alicia's rape reported numerous rumors about the rape and the other molests. They also reported that despite frequent problems with break-ins and reports to the Navy about the lack of the security of the windows, nothing had been done. One resident reported that at the time this was occurring, he had reported to the Shore Patrol that his children were reporting an adult male who wanted to look at their privates. Residents reported that the Navy had not questioned them for further information nor made any attempt to dispel the rumors or educate residents about what had actually happened.2 The Navy has made no effort to fix these windows. Jurors found that residents of this complex routinely placed boards on ground floor windows, and put furniture in front of windows to improve security. Complaints have been routinely made to Navy security and routinely ignored. When the serial suspect was arrested, the police asked to have Alicia attempt to ID him from a live line-up. Alicia's therapist and social worker felt that this would be too traumatic. Despite reservation, the police abided by its professional opinion. (It should be noted that there is no mention in any logs or therapy notes of Alicia suffering from severe emotional trauma. Rather there are frequent notes about her excellent recovery and adjustment.) Instead, Alicia was shown five small polaroid photos, and she was unable to pick out a photo of the suspect INVOLVEMENT OF THE CRIMINAL PROSECUTING DEPUTY DISTRICT ATTORNEY Alicia's description of her attacker, as given to one of the Child Abuse Unit detectives, played a role in the ultimate conviction of the assailant for the assault of Nicole S. First,

2Also of serious importance was the failure by the Navy to keep Mr. w. informed as to the nature of the other sexual molests. Mr. R. moved away from this Navy housing complex on the morning of May 24th after he had experienced a warning alarm of a threatened break-in twice in one night. He only later heard rumors of other molests. 14

it was a Child Abuse Unit detective's recognition, from reading the newspaper article about this abduction, and communication with a detective from the Sex Crimes Unit that made the suspect a possible target in the assault of Nicole S. Significantly, with the suspect in custody, the D.A., involved in the prosecution of the other four neighbors of Alicia, filed a declaration to obtain the suspect's blood in order to connect him with both the rape of Alicia and the assault of Nicole S. This declaration used Alicia's description as given, on the morning after the rape, to a SDPD detective. The Deputy D.A. stated that Alicia's description was accurate and that the pimple or bump on the assailant's face, described by Alicia, was even discernable in the photo taken at the time of his arrest. The declaration went On to state that, "the modus operandi of the crime involving Nicole S. is so similar to that of the crime involving Alicia W. that [the defendant] must be considered as a suspect."3

The declaration concluded: "a sample of the defendant's blood for purposes of comparison is necessary to exclude or include [the defendant] in the category of suspects as to the molests of Alicia W. and Nicole S. Though he is not the only suspect in either case, as each father is also a suspect, he is a suspect in both cases who could be eliminated or confirmed by such a comparison." It is very disturbing that despite the fact that this document was in the District Attorney's file on the suspect, it was not in the court file and therefore not discoverable by the criminal defense counsel for Alicia's father or available earlier when the parent's attorneys were seeking to discover from the D.A. all documents relating to the suspect. Neither was it available when the parents' attorneys were attempting two years later to recuse this same attorney in the Juvenile Court proceedings. The document was court filed. It's removal from the suspect's criminal file, or a bookkeeping error in the 3In 1991, after the semen had been discovered and when the defense was attempting to obtain a continuance of the .26 termination of parental rights hearing, this same attorney, as County Counsel, represented to the court that, as the criminal prosecuting D. A. on these cases, the "MO's" of these assaults were completely different. 15

records department, was highly prejudicial to the criminal defense and in the Juvenile proceedings.4 The Deputy District Attorney, who prepared this declaration, went directly from prosecuting the suspect on the Navy housing molests to a new job as Deputy County Counsel and began representing the Department of Social Services on the Alicia W. case in January, 1990. Having all of this information on the serial suspect, she could have brought to this case the insight to look at someone other than the father as the perpetrator. Instead, throughout her tenure on this case, she used her experience, as the D.A. who had prosecuted the serial suspect, to protest that these two crimes were completely different and that she was certain that the serial attacker had not raped Alicia. This Deputy's July 12, 1989, declaration, missing from the files, belies that testimony and raises many unanswered questions about this attorney's motivation. The blood obtained as a result of that declaration did result in the identification of the serial suspect as the perpetrator against Nicole S. If the criminal lab had found the semen on Alicia's clothing at the time of the rape, it could have also resulted in the early identification of this man as the perpetrator of the rape of Alicia.

AFTER A YEAR IN THERAPY Following the erroneous conclusion that there was no semen on Alicia's clothing, very little was done to resolve the case. Mr. W. kept trying to prove his innocence and underwent a polygraph by Naval Investigative Service officials. He passed this polygraph with the Naval Investigator Service polygrapher, indicating that Mr. W. was not being deceptive in denying the attack on his daughter. For thirteen months, Alicia persisted in telling her therapist about the man who took her through a window and raped 4Despite the fact that the DA’s office provided this declaration at the time the Grand Jury subpoenaed the serial attacker’s criminal file, the criminal prosecuting Deputy DA was unfamiliar with this document. This was surprising on two counts. It would appear reasonable that he would have reviewed this file both at the time he began to prosecute Alicia’s father and again when the file was requested by the Grand Jury. 16

her. After more than a year of therapy and isolation from her family, Alicia finally "disclosed" that her father had raped her. She was again taken to the Center for Child Protection and interviewed. This interview was very disturbing. Alicia was barely able to say the words of accusation. She refused to

elaborate. She laid on the floor and almost assumed the fetal position. She kept trying to change the subject. Her statement, nevertheless, was taken as the truth, because it was what her listeners had waited so long to hear. A leading specialist in the area of sexual assault issues was asked to review both of the interviews done by the Center for Child Protection and expressed this opinion: "I reviewed the video tapes of Alicia W. made at Children's Hospital done in 1989 and 1990. First interview done by (CCP SW Investigator I) and second interview done by (CCP SW Investigator II). In both interviews, in particular and even more apparent in the second interview (which is one year after the trauma) this child demonstrated significant cognitive deficits and depressive affect. Alicia had significant impairment in concentration and attention apparatus. These deficits could be seen when she had difficulty in recalling what had just been asked only seconds before. One could almost see Alicia "tuning out", day dreaming, "forgot" what was just stated . . . She also seemed to become regressed, at one point in the second interview she moves from sitting up position to lying on the floor in a semi fetal position. Alicia also demonstrated as having short-term and long-term memory impairment. These are accompanied by amnesic states . . . It is my opinion that this child is in psychological shock or experiencing a significant psychological process which has deadened particular psychological processes, i.e. memory." In other words, after more than a year in therapy, Alicia's psychological state deteriorated. This expert further noted that, "Much has been missed clinically and is compounded by the perception that this child was molested. Alicia may have also been a victim of nosocomial abuse, i.e. abuse pertaining to or originating in a clinic or hospital".5 5The False Memory Syndrome Foundation, located in Philadelphia, was established in February, 1992. The Advisory

In an earlier letter to the Juvenile Court, after an evaluation was done at the court's request, shortly after Alicia named her father, this expert speculated: "Children's logic many times does not follow the logical rational thinking of adults. There are times that children will name an individual whom they feel they can trust as the perpetrator, even though that individual is not the perpetrator. Sometimes they name this particular individual because they know that he/she will not be angered by the child accusing them. That adult is a safe individual for that child. Sometimes they do this . . . to have the pressure off of them for "telling who did it". In this case, it may be that the child is naming the natal father because of this fact. On the other hand it may be because the child's therapist is only focusing on the father as the perpetrator not allowing the child to "really tell the story". It is this expert's acute level of insight into this case which led the Jury to have a grave concern about the level of competency and inherent biases of some of the other courtappointed therapists who are performing essentially investigative tasks. The second social worker (DSS SW2) on this case wrote in her transfer notes: "Alicia's therapist absolutely believes that the father is the perp [perpetrator]. At this point if Alicia could suddenly identify another perp [perpetrator] I'm not sure that she would hear her." The truth of this observation was verified when the therapy notes were eventually "discovered" by the family. Board of FMS Foundation includes twenty Professors of Psychology and Psychiatry from the University of Pennsylvania, Harvard, UCLA, Stanford, John Hopkins, UC Berkeley, Carnegie Mellon University. The Foundation is deeply concerned about the growing phenomenon of false accusations coming out of therapy. The Foundation is concerned that this dangerous phenomenon will ultimately impact the profession's credibility. Already they attribute inappropriate therapy with destroying families and creating abuse in the minds children and adults. 17

of

The appropriateness of a therapist and social worker having so much control over the access to a primary witness to a crime should be examined. These two controlled all access to Alicia for a year and maintained that Alicia was "blocking", while she persisted in trying to convince her therapist of her description of the perpetrator right up to the "disclosure" that it was her father. The only other persons who had contact were the foster parents. Any information they reported back to the therapist or social workers was treated as objective and factual. In June of 1990, after seven months in isolation from her family, the court ordered a visit with Alicia's brother, Josh. The court also ordered on the recommendation of DSS SW3 that Alicia be brought in for a hearing in the judge's chambers. By this time, the foster parents had expressed interest in adopting Alicia. On June 20, 1990, from therapy notes: 18 "Session w/Alicia. Talked w/FO MO - after session w/Josh Alicia had a nightmare (first since November always Mo/Alicia/Josh dies in gruesome manner). This one Alicia dreams her dad falls off a ladder on his ship and drowns. [FO MO] is concerned about impact of visits on Alicia. Talked with Alicia about need for her to talk about what happened that night. Says she's not ready yet explored what would make it easier. Began to cry and said it was because R. makes fun of her foster home placement. Said she could tell me or foster parents. Then told me same thing about man w/brown eyes and hair took her out of screen in Josh's room 6 took her away in a green car. Said she was tired went to sleep after - that's why she didn't wake MO." On June 22, 1990 from therapy notes: "T/C from/to FO MO - told me Alicia disclosed her father as abuser." CRIMINAL CHARGES AGAINST MR. W. This "disclosure" by Alicia after thirteen months of therapy was sufficient to lead to the filing of criminal charges against the father. Despite all of the expert cautions to believe the first story a child tells, Alicia was not believed until she said

her father did it. After that she was never questioned. There was no further substantiating evidence needed. DSS CI, the therapist and the foster parents finally had the "disclosure" they wanted. It was determined by the Deputy D.A. (DDA CRIM) that Alicia was a credible witness. Despite the pages and pages of narrative by the Deputy D.A. on the "chronology of the case", the only single new thing that was done at this point was to send an investigator to interview the now convicted serial attacker in prison. This man denied raping Alicia and said that he was avoiding that neighborhood at the time. This statement was patently false, as the police already had solid evidence of his entering other windows in that neighborhood at the time of the rape of Alicia, and one of the charges against him, and on which he was convicted, occurred on the same date as the rape of Alicia. That victim was a child across the street. The DDA CRIM acknowledged on the screening sheet that this was a "weak case" with an "inexperienced therapist". The preliminary hearing was held in February, and the father was bound over for trial. Prior to trial, the DDA CRIM, in an effort to bolster the case, had Alicia's clothing reexamined. It occurred to him that 19 Alicia might have been drugged and that this could have been the reason for her failure to respond appropriately at the time of the rape and on the morning after. He knew that there was blood on the clothing, and he contacted the SDPD criminalist to determine whether a toxicology screen could be done on the blood stains. Some days later, the DEP DA CRIM called the lab, and the criminalist told him that while testing the clothing, she had found semen using a piece of equipment purchased after the original testing had been done. (Note: Semen could have been found using the LAB equipment in place during May, 1989.) Throughout March and April, 1991, the police department and the DDA CRIM discussed and maneuvered with this new-found information. At the same time the criminal defense attorney, unaware of these findings, was seeking to have the physical evidence sent to an independent laboratory for examination. The attorney was not told until some time in April that semen had been found on the clothing. It took from May until August to obtain the results of that independent testing, which showed that Mr. W. was not the perpetrator and that the serial attacker very likely was.

Although he did not report the discovery of the semen for more than a month (a delay which was critical in the Juvenile Court proceedings) the DEP DA CRIM, to his credit, delayed the criminal case pending the return of tests and kept parties in the Juvenile Court proceedings apprised of the developments in the criminal proceedings. Astoundingly, the Juvenile Court continued to proceed towards termination of parental rights without the information about the progress of this testing. Telephone logs from both the DDA CRIM and the Deputy County Counsel (DCC JUV) who was handling Alicia's case indicate that there was frequent communication between them, and that the DCC JUV was very aware of the nature of the new evidence. After the results of the first DNA testing were received and these results exonerated Mr. W., the D.A.'s office required that they be repeated before taking any further action. The "no contact" order, prohibiting contact between father and daughter, was left in place while this second testing was done. When the first set of results from DNA testing showed that the father was not the perpetrator and that the incarcerated perpetrator of the other molests was a highly likely suspect, and after the involvement of the Grand Jury, a meeting was held with the foster parents, the Deputy D.A., minor's counsel, a DSS representative, and father's counsel. At that time, and in other contacts, the foster parents continued to insist that the father was involved. The foster parents told the DDA CRIM that Alicia had had no urinary or bladder infections since she had been in their home and that she wanted to be adopted by them. (The implication of the cessation of the urinary/bladder infections was that these can be associated with molest.) There was no 20 effort made to ever check the veracity of that statement. The Deputy County Counsel, the Deputy D.A., and the foster parents, without a shred of confirming evidence, developed an implausible scenario that the rape could have involved both the father and another man and that the rape story was a cover for an ongoing molest. Two SDPD detectives from the Child Abuse Unit (SDPD Det. 1 & 3) were sent to interview the serial attacker in prison. He told both of them that he always "worked" alone. He further told them that he did not know Mr. W., and that Mr. W. had nothing to do with the rape of his daughter. He did not confess to the rape but wanted to meet with the D.A. The detectives reported their clear impression that he wanted a plea bargain. Even after this

interview, the "no-contact" order was not lifted even for purposes of allowing the father to attend joint-therapy sessions with Alicia. Despite a sincere but marginal investigative effort, all of the necessary investigative information was always in the possession of the San Diego Police Department. The police department failed in its investigation, in its communication of available information, and in its examination of physical evidence to put this information together properly. Given the facts of this case and the evidence available, the reason for this failure is obvious. This failure can most readily be explained by the predisposition of the Child Abuse Unit, the Center for Child Protection, and the Court Investigative Social worker to see this as a case of familial incest. The police investigators abdicated their primary investigative role to the social worker, the therapist, and the Center for Child Protection, despite their strong suspicions that the facts of this case did not support their bias. In March of 1992, the Foreman and Deputy Foreman of the Grand Jury met with the District Attorney, two senior Deputies, and the Deputy D.A. in charge of the Child Abuse Unit. Although the purpose of this meeting was not to discuss the Alicia W. case, it became the subject of considerable discussion. These jurors were incredulous when they discovered that the D.A. and members of the his staff still believed that Mr. W. was either guilty of or implicated in the rape of Alicia. This was four months after a "true finding of innocence" by the criminal court. The jury members were presented with numerous speculative possibilities for this involvement. Again, refutation of each of these theories was in the D.A.'s own file or in the DSS file, which was readily available to the D.A. Jury members were deeply troubled that the District Attorney had still not done a comprehensive study of their processes and procedures, which allowed such a serious miscarriage of justice 21 to endure for so long. The Jury was concerned that the attitude of the office of the District Attorney appeared inconsistent with its charge to represent the people. While it is the job of the D.A. to prosecute cases, it is also his job to exercise sound prosecutorial discretion to prevent such awesome power from being misapplied. There had been no attempt, even when the existence of semen was discovered, to look for evidence exculpatory to the

father. When the semen proved to be a third party's, there was an effort made to connect that person to the father. The Jury recognizes that some of the "facts" could not have been known to the D.A., and some of the "facts" were erroneous assumptions made by various child abuse investigators. It is hoped that this chronology will be used to help the District Attorney, the SDPD Child Abuse Unit, and particularly the SDPD Criminal Lab to take a closer look at procedures to ensure that these same errors are not repeated in the future.6

THE JUVENILE JUDICIAL PHASE

DETENTION Within forty-eight hours of taking custody of Alicia, the Department of Social Services had either to file a petition seeking temporary custody of the child or to return Alicia to her parents. The Court Investigative Social Worker (DSS CI) was responsible for the investigation and for the decision to take the case to the Department's attorney seeking a dependency petition. All petitions are screened for legality by an attorney for the Department of Social Services. In May of 1989, the District Attorney was still representing the Department in all juvenile dependency cases. A supervising Deputy D.A. screened the petition within the forty-eight hour period and determined that given the information presented to him by DSS CI, there was cause for a dependency petition. The following day, May 12, 1989, the parents arrived in court and were confronted with a Petition filed under Section 300(d) of the Welfare and Institutions Code (sexual abuse) which alleged:

"that the minor has suffered, and that there is substantial risk that the minor will suffer serious 6The Grand Jury is particularly concerned that the SDPD does not recognize that the Victim Witness Protocol is not an answer to the problems encountered by the Jury. It may, in fact, exacerbate problems, if law enforcement fails to perform an independent investigation including the interview of victims and witnesses 22

physical harm inflicted non-accidentally upon the minor by the minor's parent or guardian, in that: on or about May 9, 1989, said minor suffered and was discovered to have a detrimental and/or traumatic condition/injury consisting of, but not limited to, perineal tear, lacerated fourchette, and fresh tears in the rectal canal. Such a condition/injury would not ordinarily occur except as the result of the unreasonable and neglectful acts and omissions by the mother, who had the care, custody, and control of said minor, and said minor is in need of the protection of the Juvenile Court." Accompanying this petition was a form which was necessary to justify the detention of the child without providing preplacement preventive services. On this form DSS CI wrote: "Said minor was sexually molested while under the care and supervision of her parents. The father denies molesting the minor; the mother is denying father would have molested the minor. Minor is unable or afraid to tell who has molested her."7 At the May 12, detention hearing, the parents and the minor were appointed counsel. The court ordered that there be no contact between the minor and the parents until after the evidentiary interview, which was scheduled within the week, and that the Department of Social Services would subsequently have the discretion of allowing only supervised visits. The court also ordered that Alicia immediately be placed in counseling with a therapist "well versed" in issues of sexual molest. A May 24 date was set for a Readiness Hearing. By this time, the father had excused his court-appointed attorney' and retained private counsel. Mother remained with her court-appointed counsel. Minors are required to be represented by court-appointed counsel. Alicia's first court-appointed counsel ultimately left the case when he was hired by the Juvenile Unit of the County Counsel. Only mother's counsel would remain on this case through its duration. Father testified that he retained counsel by borrowing funds from his parents. He called several attorneys advertised as "juvenile attorneys" in the Yellow Pages and hired the least expensive called. At the 7 This deceptive statement is made despite a clear and accurate description given to the investigating detective and a statement made to the CCP examining physician. 23

May 24 readiness hearing, father's counsel requested a continuance, in order to gather further information. On June 5, at the continued readiness hearing, father's attorney told the court that there were some fingerprints now available and that they were still waiting for the results of the Rape Kit Test from the police department. Alicia's attorney requested a dispositional trial. A June 30 discovery date was set by the court. All attorneys were ordered by the court to give specific discovery requirements to the District Attorney by June 9, 1989, at 5 PM.

On June 9, an amended petition was filed on behalf of the minor under Section 300(b) (neglect) which alleged: "that the minor has suffered, and there is a substantial risk that the minor will suffer serious physical harm or illness as follows: said minor's parents have failed adequately to supervise and protect said minor from serious physical harm or illness and of substantial risk thereof, in that: on or about May 9, 1989, said minor suffered and was discovered to have a detrimental and/or traumatic injury consisting of, but not limited to, a perineal tear . . . Such an injury would not ordinarily occur, except as the result of the unreasonable and neglectful acts and omissions of the parents who had care, custody and control of said minor, and said minor is in need of the protection of the Juvenile Court. And further, said minor comes within the provision of Section 300(d) of the Juvenile Court Law of California. On June 12, a detention hearing was held regarding the amended petition which was now charging both neglect and molest. Both parents entered a denial. The Deputy D.A. assigned to this case, who was responsible for the amended petition, explained that there was insufficient evidence to find that either of the parents had been involved in the rape, but there was sufficient evidence that the rape occurred while Alicia was in the custody of her parents and could expect to be protected. The petition was changed from molest (Section 300d) to neglect (Section 300b). It is important to note in reading between the lines of the court minutes compiled by the court officer, the reports of the social worker, and available portions of the transcript, as well

as the direct testimony of witnesses that there seemed to be an almost immediate clash of styles between father's attorney and everyone else in the proceedings. In particular, court officer notes refer to frequent chastising of father's attorney by the judicial officer.

24

Father's counsel was a new attorney, and this was his first juvenile trial. He was inexperienced at Juvenile Court, and only mother's counsel seemed to tolerate him well. This is one of the areas of the case study which is not solely dependent upon known "facts" but is the result of deduction and anecdotal testimony. The inexperience of father's attorney, the "old boy" collegiality of Juvenile Court, and the personality clash/frustration the judicial officer experienced with father's counsel certainly contributed to the tragic decisions of this case.

DISCOVERY DIFFICULTIES As the Jury reviewed documents and portions of transcripts available, it is difficult to understand exactly what father's counsel did wrong. He filed multiple discovery motions, seeking information which was available at the time and which if produced would have been invaluable to the defense of the case. For example, he asked for discovery of: 1. . . . all laboratory, technician's and other reports concerning the testing and examination of physical evidence including but not limited to, results of rape test. . . . production of records in the possession of the police department, relating to all statements or utterance by the father James B. W., Denise W., Joshua W., and Alicia W., DSS CIII, Child Abuse Detectives, a neighbor (K.W.), the NAVCARE treating physician, the CCP examining physician, and any other statements made by any other witnesses in the possession of the San Diego Police Department relating to the police investigation of Mr. James W. . . . production of records in the possession of the San Diego Police Department relating to this case including, but not limited to reports, records, statements fingerprint tests, polygraphy examination. . . . any and all records, information, fingerprint tests, relating to the names of [the serial attacker] and [another], who were referred to by the police in conversation with Mr. W. and the results of police investigation regarding other possible perpetrators. (Crossed out on this discovery petition it continues)

2.

3.

4.

. . . all records relating to the police investigation of another rape that occurred within the last two weeks at an address on Larkdale Street.

25

These discovery motions were addressed to the Deputy D.A. in the Juvenile Dependency Unit. No information was made available to him about either the neighborhood molests, the assault of Nicole S. or the serial attacker's past history. The July 12 declaration by the Deputy D.A. prosecuting the serial attacker and using Alicia's description was not given to him. In fact, father's attorney obtained nothing prior to the dispositional trial which gave him any leads to the identity of this man or the facts related to the other neighborhood molests. The DDA JUV's response to the discovery motion was the same for almost all items requested: "This information is not contained within the DSS file or the D.A. dependency file for this case." Jury examination revealed that there were in fact numerous entries in the social-worker logs relating to the other molests and the ongoing investigation. There were documented conversations between DSS CI and minor's therapist about the other molests. Alicia was taken to a photo line-up where she failed to identify the serial attacker. There were several calls from one of the Child Abuse Unit Detectives which gave DSS CI further information. None of this information was provided to the father's attorney. The Juvenile Dependency Deputy D.A. explained that the procedure on such discovery motions at that time was for such information to be provided by the DSS CI and the Department with the assistance and clearance of their attorney, the County Counsel. This Deputy D.A. stated she was completely unaware of any information about the serial attacker or the other molests until some point into the dispositional proceeding. When shown the information which was available in the social worker logs, she explained that it should have been provided to the defense through discovery. When shown the criminal Deputy D.A. `s July, 1989 declaration asking for the serial attacker's blood and using Alicia's description, the dependency Deputy D.A. maintained that she should have been informed about this connection. The Juvenile Dependency Deputy D.A. explained that while the Juvenile Dependency Unit of the District Attorney had been responsible for conducting dependency litigation for the Department of Social Services, for all other purposes County Counsel provided legal counsel. If the system had worked correctly, DSS CI should have identified all comments made in her logs which were covered by the discovery motion. She would have given these to County Counsel to check for confidentiality and legal issues. A social worker would not, if following procedures, on her own, make the decision to exclude items from

discovery. DSS CI offered that the sections of the log which were whited out or excluded in the discovery presented to father's attorney would have been selected by County Counsel, if 26

procedures were followed. It was DSS's policy, implemented by County Counsel, to exclude what they determined to be unnecessary information or information which indicated a conflict between cooperating agencies such as CPS and the Center for Child Protection, CCP or Naval Family Advocacy. Father's attorney addressed his discovery request to the District Attorney, Juvenile Dependency. The Department later argued, on appeal, that such a discovery request should properly have been addressed to the District Attorney, Child Abuse Unit, or District Attorney, Criminal Division. The dependency Deputy D.A. made no attempt to contact any other units or do any computer search in D.A. records for the name of the serial attacker named in the request. Further, father's attorney requested in discovery the complete log of Child Abuse Detective's interview of Alicia, results of police investigation regarding other possible perpetrators, names of all police officers involved in the case. The response to this was the same as the others: "Not contained in the DSS dependency file or the D.A. dependency file for this case." Father's attorney eventually sought a court some of this information. The request was only as the Juvenile Dependency D.A. stated that the perpetrator's identity would not be an issue at order to obtain partially granted issue of the trial.

It was very troubling to the Jury to discover that procedures and facile arguments about the names of divisions were used in this way to block access to exculpatory information. Because the Deputy D.A. had no stated intention of focusing the jurisdictional or dispositional issues on the father as the perpetrator she saw no value in the father's attorney's need to prove that the father didn't do it. This is particularly troubling as the establishment of the father's involvement in the rape of Alicia was in fact at issue at jurisdiction, in the plea, and at the dispositional trial, and most court orders were premised on the supposition of the father's guilt. The "true finding" of October 30, 1989 made after the trial was that "the minor has been sexually abused by a parent, a member of the household, or someone known to the parents." This finding severely complicated reunification and reached beyond the scope of a 300(B) petition. The family had no money for expert witnesses or outside testing of evidence. Father's attorney told the court that he had no money available for experts or investigation. He did not follow the proper procedure and contact the Alternate Defense

Counsel to request services. Testimony was taken that no one on the Juvenile Panel was willing or available to serve as cocounsel.

27 The District Attorney's office knew there was another suspect in Alicia's case. The criminal Deputy D.A.'s declaration of July Il is clear and convincing proof of that. Furthermore, the Deputy D.A. who filed the July 12 Declaration called minor's therapist on July 7, and told her that there was another suspect. Despite the mounting evidence of another perpetrator, no one provided any of this information to the family, despite numerous legal requests.

JURISDICTION, PLEA BARGAIN, THIRD PARTY CARETAKER On July 13, the scheduled trial date for the jurisdictional hearing, a referee was asked by the judge on the case to act as a settlement judge. Attorneys and family had come to court prepared for a trial with many witnesses. They sat all day while there were discussions over a change in the petition which would be acceptable to the defense attorneys. Father's attorney was outspoken in his criticism of a plea. Mother's attorney thought a plea was as good as they were going to get at that point and that it would allow Alicia to return home almost immediately. It is important to remember that Alicia had now been separated from her family for more than two months and her mother was desperate for her return. Despite his counsel's strenuous objections, Mr. W. reluctantly agreed with his wife and her attorney to admit to the new petition which essentially stated that the parents had been neglectful in allowing Alicia's molest to occur. The Jury found this was a crucial moment in the handling of the case which would come back to haunt this family. The Jury also found plea bargains of this sort are common practice at Juvenile Court and often cause long term problems. Ironically, the Juvenile Dependency Deputy D.A. confirmed that she would not have wanted to take this case to trial. There was no physical evidence that the father or mother did anything neglectful. The child was consistent in telling a detailed story about her abduction and rape. There was no case so a makeshift plea was cobbled together and sold to the parents on the promise their

daughter would be returned to them. It turned out to be a bill of goods. The judicial officer made new detention orders which directed that Alicia "could" be returned within one week with a third-party caretaker in place. The judge further ordered that the approval of the third-party caretaker would be left to the "discretion of the Department of Social Services."8 The judge further ordered psychological evaluations of the parents to be done by a court appointed psychological evaluator. She ordered that the parties return to court in one week if problems arose with the third-party caretaker. From the notes made by the court officer, it appears that everyone was in agreement that this plea would allow Alicia to return home within the week. The court was very specific and set specific conditions to this end. Mr. and Mrs. W., while still in court, prior to the hearing with the judicial officer, called Mr. W.'s mother in Missouri. She was willing to come out immediately and serve as the thirdparty caretaker. She had previously met and spent some time with DSS CI in late May and no obstacles to her approval were anticipated. However, DSS CI sat through all of these negotiations knowing she had no intention of approving anyone as a third-party caretaker. She was convinced that the father was the perpetrator and nothing would ever alter that conviction. Because she was so sure of his guilt, she was certain that there was no condition under which Alicia could be safe in that home. Thus, from her viewpoint, the third-party caretaker agreement would be stillborn. She did not voice her concerns at the time of the plea bargain. DSS CI did make a mandated phone call to the grandmother ostensibly to "check her out." In fact, she told the grandmother almost immediately that she shouldn't waste her money coming to San Diego because Alicia would not be going home. DSS CI told her that her son was guilty of the rape of Alicia. Although she believed in her son's innocence, Grandmother W. told DSS CI that if Alicia ever accused her father, she would immediately call the police and tell DSS. DSS CI later represented to the court that the grandmother said that she wasn't sure she could report her 8Misinterpretation of the phrase "at the discretion of the social worker" is responsible for many of the problems at Juvenile Court. A judge may order weekly visits "at the discretion of the Social worker." Social workers have interpreted this as giving 28

son.

This is contradicted by DSS CI's notes in the log.

The grandmother had successfully raised a large family. All of her children, except Alicia's father, still live in the immediate area. At the time, the invalid great-grandmother was living with the grandmother. She immediately arranged for the care of her mother and despite DSS CI discouragement came to California to be here as Alicia's third-party caretaker. Upon the advice of father's attorney. Grandmother W. met with a respected, court-appointed therapist, well versed in molest issues and had an interview/evaluation to determine her suitability as a third party caretaker. This therapist found the grandmother appropriate. ______________________ them the discretion of not having visits at all. Judicial officers interpret this phrase as ordered weekly visits with the time with the time and place to be negotiated with the social worker. 29 The court had ordered a further hearing for July 21 in the event that the Department had not yet approved a third-party caretaker. From the July 13 date to the July 21 date, DSS CI was orchestrating the results of that hearing as she had no intention of seeing the deal executed. Her ally in this was the child's court-appointed therapist. DSS CI requested the therapist's opinion about the child returning with a third-party caretaker and got the desired "not in the child's best interest" response. The tragedy of that decision for Alicia is briefly mentioned in the therapy notes when Alicia is told she is not going to go home. Alicia tells anyone and everyone how much she wants to go home. As recorded in the therapy notes, she begged her "friend" (minor's therapist) to help her get home. DSS CI's log, on July Il, 1989 summarizes a phone call from minor's therapist, "Her story has never wavered. She's always very clear that father did not molest. Kid wants to go home-her over-riding concern. Speaks positive about her dad. If she doesn't go home, then what happens? Alicia was in Joshua's bed when molest occurred. Won't admit to having scary dreams." Alicia told her second foster mother how much she wanted to go home. Her foster mother was so moved that she conflicted with DSS CI when she wished to testify in court that Alicia was

telling her about a man taking her through a window and that she had no fear of her father. (DSS CI immediately moved Alicia out of this home and reported this "infraction" to licensing.) On July 21, DSS CI submitted a supplemental report and stated that the third-party caretaker plan was not feasible. She eliminated the grandmother, the pastor of the family's church, a neighbor, and father's attorney. She did not interview the latter three though presumably she knew father's attorney. She stated in the supplemental report: "The parents, despite their participation in therapy from the onset, have continued to focus on their own needs rather than the minor's. Each adult they have chosen to act as a "third party caretaker" has a clear allegiance with the parents. The parents have not offered the name of any maternal relative or individual who has expressed concern for the minor's safety and emotional stability first, and expressed a willingness to care for the minor (i.e. maternal aunts)." She continued: "It is obvious that her sense of trust in adults has been violated as, if the perpetrator was someone 30

outside of the household, it is someone she knew well enough to follow, or if the identity lies within the household, her natural instinct to trust was further violated." . . . "Therapy is not a "pill" that can be taken for a specific length of time with a cure or remission at the end of the prescribed course. The family has been dysfunctional for several years, and have only recently begun to cope with the issues of marriage, family and individual dynamics. Therefore, it will be recommended that the minor, Alicia W., be placed in a long term licensed foster home . . ."

On July 28, all attorneys, Grandmother W., DSS CI, and the parents were present in court. Because minor's therapist was not in court that day, the various attorneys, the DSS CI, and Grandmother W. had a telephone conference in the judicial officer's chambers. The discussion centered around the minor's therapist's opinion regarding a third-party caretaker. At no time during this conversation was any question directed to the grandmother by the therapist, social worker, minor's counsel, or judge. In fact, no one spoke to her at all. The judge absented herself from the chambers for most o°f the conversation, came back and rendered an opinion consistent with the result desired and scripted by DSS CI. Attorneys for Mr. and Mrs. W. immediately contested this order which essentially bound the parents to the plea but stripped them of the bargain. It was later argued, on appeal, that the parents should have immediately moved to have the jurisdictional plea overturned and requested a jurisdictional trial. Father's attorney advised his client to do this. However, the parents were told by minor's counsel and DSS CI that if they attempted to return to the jurisdictional phase, their son, Joshua, would be taken. The judicial officer also warned the family that going back to the jurisdictional phase would put the family "further behind the eight ball." The family decided, with this input, not to take the advice of Mr. W's counsel. The social worker logs and minor therapist's telephone logs indicate frenetic phone calling by DSS CI to minor's therapist prior to the phone call in chambers and prior to the July 21

hearing. Minor's therapist came to DSS CI's aid at each request until this social worker was removed from the case in late December. DSS CI did not want Alicia to testify in court at the trial. She said it would be too traumatic. Alicia's therapist concurred. Despite the court's reluctance and despite the insistent objections of the father's attorney, the court went 31 along with the therapist's recommendation. It was stipulated that Alicia was still telling a story about her abduction and rape by a man she could describe. In July of 1989, the police had the serial attacker in custody and wanted Alicia to view a live line-up. On July 7, Alicia's therapist received a phone call from the prosecuting Deputy D.A. Minor's therapy notes read: "P/C Dep. D.A. . . . that there had been another case of a man breaking into child's room, abducting child and then molesting her. Will wait for blood and semen tests on suspect and fa before pursuing line-up with Alicia." DSS CI decided a live line-up would be too traumatic. Once again she enlisted Alicia's therapist, who concurred. The Child Abuse detective (SDPD DET 1) did not force the issue and Alicia instead saw small polaroid photos and was unable to pick out the attacker. There is no indication from therapy notes that the possibility of an alternative suspect caused the therapist to alter her therapeutic approach in any way. There is no indication from CI logs that the existence of an alternative suspect had any effect on her investigation or provision of services. It is important to note at this point that minor's therapist, the criminal D.A. on the serial attacker case, the Child Abuse detectives, and DSS CI all knew there was another suspect in the Alicia's case. The defense did not know this and not one of those parties urged any caution in proceeding against the father. Alicia's therapy continued to center around a theme of in-home molest and becoming "strong enough to tell" or, in other words, implicating her father. In November 1989, at the end of the dispositional hearing DSS CI wanted to stop all visitation between Alicia and her family. To this end she had the support of the third foster mother and Alicia's therapist. The foster mother reported to the

social worker and the therapist that Alicia had nightmares after visiting with her parents and became difficult to handle. DSS CI made visitation impossible for several weeks. The therapist then wrote a letter to the court stating how much better the child was without visitations and that ceasing family visits would allow the child the "freedom to remember" what really happened to her. The foster mother reported that the nightmares had stopped and that Alicia was much happier. The court after hearing from the therapist, and despite it's anger at DSS CI's direct violation of court orders, proceeded to give the result she wanted. Alicia did not see her family again for many months.

32 Defense counsel wanted another psychological evaluation of Alicia with a consideration toward a change of therapist. DSS CI and Alicia's therapist presented a united front and successfully delayed an additional psychological evaluation and blocked discussion of a change in therapist. Early into its investigation, the Jury speculated that there had to be some reason for the enthusiastic collusion of the social worker and the therapist, later joined by the foster mother and the prosecuting D.A. in the serial assault case, (subsequently the Deputy County Counsel in Alicia's case). The Jury ultimately concluded that the connection had more to do with a very similar philosophy and bias than with anything more sinister. In fact, the Jury found no proof of "conspiracy" among any of the principals in this case. In some ways this was more disturbing because just like other similar cases, the "system" purposely but mindlessly pushed it along the "in house" molest mode.

DISPOSITION The contested dispositional hearing was set for August 31, 1989. Immediately prior to this hearing there was a substitution of minor's counsel. Minor's first counsel immediately joined the office of the County Counsel. Once again, DSS CI put together a "Social Study Report" which would enjoy the status of evidence in this proceeding. She quoted extensively from letters she had solicited from the CCP Director, the CCP evidentiary social worker, and the CCP examining physician letter. She also quoted from the CCP evidentiary social worker's narrative of the evidentiary interview. In addition, these letters were appended

to the report. She also quoted from a July 19 letter solicited from Alicia's therapist, as follows: "I believe at this point in time, Alicia has so well defended about the molest that she does not distinguish between fact and fantasy. In her mind, she absolutely believes that she was abducted to her brother's bedroom window by an unknown assailant. Whether or not this is in fact a reality or not, she believes it completely. In my experience, this is not unusual. Children who have been confronted with a terrible trauma over which they have no control and which is too horrible to remember will often construct a version of reality which they can live with and which they believe to be the truth." The therapist's notes indicate that Alicia gave great detail to this story of an abduction. Unfortunately, this therapist was the only one who had access to Alicia and the only one who heard these details. 33

DSS CI's Social Study of August 31 concluded: "The evidence continues to indicate that the minor, Alicia, was not sexually assaulted by an outside intruder. She was assaulted by an individual she knew and whom was already living in her household. Sadly, that party chooses to remain silent in an effort to protect themselves from acknowledging their part in betraying the trust and love of a child. In addition, the lack of emotional support demonstrated by the minor's mother and her clear alignment with the father further undermines the minor's ability to trust in her mother's ability to protect her . . ." ". . . I concur with Dr. C.'s evaluation that the perpetrator in the household is now at very high risk of criminal prosecution if Alicia tells an accurate story, so it could be anticipated that he will do everything in his power to prevent her from doing so. If Alicia is allowed to have contact with this person, it is predictable that every encounter will be utilized to influence her and to continue to deny the true circumstances. The perpetrator may also be able to influence Alicia's mother to keep Alicia frightened. If he is given private access to Alicia, she is at extreme risk for emotional abuse, for a repeated sexual abuse, and for physical abuse. The perpetrator has already demonstrated his propensity for violence by the injuries that he caused her in May. Further attacks could be more violent given his present motivation . . ." ". . . It is hoped that given the new evidence9 and the fact that the minor has Chlamydia, which is a sexually transmitted disease, that the minor's parents will acknowledge that the sexual assault against the minor occurred within the family home." It should be noted that the "new evidence" consisted of the two letters from the CCP Director and examining physician, the letter from the CCP evidentiary social worker, the court ordered psychological evaluation of the parents, and the diagnosis of chlamydia. 9All new "evidence", except the chlamydia, was actually opinion. This "opinion" was based on flawed information and was also tainted by bias. 34

The chlamydia diagnosis is an interesting side story to this case. It is doubtful that anyone will ever know whether or not Alicia actually had chlamydia. A second test (after she was on antibiotics) was negative. Mr. W., at his request, was tested immediately for chlamydia; the results were negative. There is no indication in any of the records reviewed that the serial attacker or any of his victims were ever tested. The dispositional trial went for days and concluded on October 31. The court notes from these days of trial, the transcripts which are available, and the testimony of the participants paint a picture of an exercise in futility. The social studies done by DSS CI were entered into evidence without protest from the defense. They abounded with inference and hearsay. From that point it was an uphill battle for the defense to try and disprove statements in the Social Study. Further, Mr. W. had no money to spend on expert testimony and evidence testing. After the first day of trial, father's counsel asked to have a court-appointed co-counsel. He was hoping that this would provide the necessary funds for expert witnesses and examination of evidence. Mother's court-appointed counsel requested fees for the examination of the physical evidence and was refused on the ground that the mother couldn't have raped Alicia, and it was therefore inappropriate for Mom's counsel to be testing for semen.10 Ironically, in a sea of hearsay, the prosecution objected to the description of her assailant given by Alicia to the Child Abuse detectives as hearsay. The court sustained the objection. Only Alicia's in court statement could be heard and DSS CI and Alicia's therapist successfully blocked her appearance. The decision to allow Alicia to testify was left to her therapist. It was the court's earlier order that the therapist and the Department social worker worked together to prepare the child to appear in court. Instead, on October 18, the court was told that the therapist was on an extended vacation. Minor's counsel joined with the Department social worker in opposition to Alicia testifying. She was never produced in court and her statement did not become evidence. The court summary of the closing arguments is interesting in retrospect. 10Mother was a considered suspect though no evidence was ever produced to implicate her. 35

Deputy D.A. states that the minor is in danger and in denial as the perpetrator is unknown. [She ignores Alicia's accurate description given to the child abuse detective on May 9 and her statement to the Center for Child Protection examining physician.]

Mother's attorney challenges Dr. C.'s expert testimony on the basis that he is not a psychologist and is out of his depth commenting on motivations for people's behaviors. Cited similar rapes in the neighborhood and similarity of Alicia's description to that of the neighborhood suspect. Minor has never named the father as the perpetrator. Father's attorney argued that the parents pled nolo to get Alicia home. He stated that Dr. C.'s testimony had been refuted. Alicia had been shown to have no fear towards her father. Asks why DSS didn't call the therapist as a witness. Sees no danger to child in the home. Minor's attorney said that DSS has met its burden to keep minor out of the home. Cited all of the CCP letters and statements. Even if the perp isn't FA, minor's home isn't safe if minor can't disclose to anyone. Dep. D.A. closes with the hope that the court heavily weighs Dr. C.'s testimony. Evidence of the other rapist is "red herring." DSS isn't recommending termination of parental rights but only wants to ensure minor's safety. Cited differences in impressions of minor's demeanor. If parents are upset with the system, how can they follow orders? These arguments are given just as they were written by the court officer in the court summary to both illustrate the importance placed on the Center for Child protection letters and testimony and to clearly show that "neglect" was not the issue at disposition. Minor's counsel, as always, joined with the Department's argument. The Jury assumes that from testimony, minor's counsel was aware that her child-client was desperate to go home. Minor's counsel did not do any independent investigation or evaluation of

this position. The Jury did not subpoena this counsel's records and therefore cannot document whether there was consultation with Alicia. The closing arguments of the D.A. and minor's counsel continue to hammer on the failure of the child to identify the perpetrator. Given the fact that this child had given a complete description of a perpetrator to the police and repeated descriptions to her therapist, the conclusion is inescapable. The only description this prosecution and ultimately the court was ever going to hear and accept was that of the father. The true finding of October 30, 1989 made after the trial was that "the minor has been sexually abused by a parent, a member of the household, or someone known to the parents." The 36

court then made specific orders for the future. (Procedurally, the case should have been transferred from DSS CI to a new social worker in the Family Maintenance and Reunification division immediately. This did not occur for two months and required a court order to do so.) The judge ordered that visitation with the parents was to continue in a therapeutic setting. (By this time there were serious problems with the visitations supervised by the foster parents.) The brother, Josh, was also to have visits. The parents were ordered to attend a parenting class which focused on the "inner world of the child." No such parenting class was ever identified. There were no visits for seven weeks. DSS CI testified that she was ill through much of the next six weeks. On December 5, 1989, a special hearing was called by mother's attorney. A memo of that date states: "The Judicial Officer ordered DSS CI and her supervisor to appear in court and explain DSS actions. The J.O. ordered DSS to comply with her orders A.S.A.P. re therapy, specific parenting classes, and visitation and a written report re: prompt transfer to FM & R. The judge also ordered therapists to communicate with each other by monthly letter. She stated that if therapists do not comply they will be cited. The court officer was concerned about the chastising and overbearing tone of the hearing. I am concerned about the court making orders to the therapists and what impact that will have on our working relationship with therapists in the community." The court officer's notes also reflected the court's displeasure that its orders had been ignored. Orders were given that a letter from minor's therapist be prepared within two weeks with specifics of Alicia's problems and how they are being dealt with in therapy. DSS CI stated to the court that she had stopped the family visits at the therapist's request because during a two week period when there had been no visitation Alicia's therapist had noted improvement. On December Another special therapist there approval by the recommendation. 21, the case was transferred to DSS SW2. hearing was held, and upon recommendation of the was to be no contact with the parents without therapist. Minor's counsel, supported the

In January 1990, County Counsel replaced the District Attorney's office as counsel for the Department of Social Services. The Deputy D.A. who had prosecuted the serial attacker 37

case joined County Counsel at this time and was immediately placed on the Alicia W. case. She remained on the case until minutes before its termination in 1991. This attorney was aware of Alicia's case while a District Attorney. She had written the July 12 declaration to take the attacker's blood. On July 7, 1989, she contacted Alicia's therapist to tell her there was another suspect in the rape and she was the prosecuting D.A. on all of the neighborhood molests. She was involved in the beginning stages of the prosecution for the sexual assault of Nicole S. She and the Department were aware that Alicia's father was still asserting his innocence and was frustrated in his attempts to gather further information about the serial attacker. The Jury is not the proper body to make a determination of the propriety of County Counsel's decision to assign this particular deputy to this case. The family was aware of her role in the criminal prosecution of the serial attacker, but the family did not know this attorney was familiar with Alicia's case as a result of her role in that prosecution. The previous other involvement of this Deputy County Counsel while the Deputy D.A. in Alicia's case was never disclosed. From October 1989 until June 1990, Alicia had no contact with her parents. There were minor court appearances over issues but none were significant until May 1990. By this time the case had been transferred to DSS SW3. This social worker had received the case from DSS SW2 with a cautionary note about the bias of the therapist and the foster parents. DSS SW3 met with Alicia and Alicia told her that her father hadn't done it and that she wanted to see her parents. She told DSS SW 3 that . .... (minor's therapist) thinks my dad did it. She told me. I've told my therapist. I love my parents and want to see' them. She doesn't hear me." A required twelve-month hearing was approaching. DSS SW3 started to prepare for that hearing. She was in favor of having Alicia testify. The court also wanted the child to testify. DSS SW3 went back over the case and was concerned that given the true finding and the terms of the reunification plan, reunification could not occur unless Alicia named an "acceptable perpetrator", i.e. her father. She was joined in this concern by the therapists consulted on the case. DSS SW3 asked for clarification from the court. The court said that it was not necessary for Alicia to name the perpetrator. It is not clear from the discussion on this issue just how the court was going to reunify Alicia with her parents in light of a true finding of such a violent sexual

assault attributed to a member of the household. A hearing was held May 1,1990. DSS SW3 recommended that visitation with the mother commence immediately and that visits with her brother also re-commence and be regular. The court 38 ordered the matter continued to June. The court further ordered that all therapists be present for this hearing and that the minor be present to testify. She asked that the two children have co-joint therapy with the brother's therapist. As the date approached for the twelve-month hearing, and faced with the demands of the court, the therapist persisted in her attempts to get Alicia to name her father as the perpetrator. The therapy notes grew increasingly intense. The therapist and foster mother testified that the therapist told the foster mother that she should begin to exert pressure on the child to "disclose." Alicia had described to her therapist a perpetrator numerous times. The therapist refused to accept this description. The therapist told Alicia for a year that she knew it was her father and that it was "OK" to tell. Reading the therapist's notes, in parallel with the DSS file, it is clear that there was a race against time. In a June 14 hearing, the judicial officer authorizes visits with Josh, her mother and ultimately her father. Alicia last describes the same perpetrator she has described for over a year on June 20. Finally, on June 22, before having a visit with her mother, Alicia named her father as the perpetrator. Alicia left with her foster family shortly thereafter for a month-long trip to Disneyworld. A July 6, 1990 assessment for the 12 month review states that Alicia is adoptable and that a parental rights termination hearing is appropriate. DSS SW3's July 25 review report differed dramatically from her May 1 Social Study. It stated that reunification with the parents was unlikely within six months and recommended that court-mandated reunification services be terminated. On July 11, shortly after Alicia's "disclosure", Alicia's mother attempted suicide. The combined pressure of the "disclosure" and the pressure being placed on her by her own attorney to leave her husband was too much. Alicia testified in chambers on August 6, 1990 as part of the contested 6 month review hearing. Alicia's testimony is

particularly enlightening in hindsight. "Father's Attorney: Okay. Did you and . . . (therapist) try and decide what story would be the best for you to talk about? Alicia: I talked to . . . (therapist) so much that I just got-she just kept talking about it and I just got sick of hearing it and I just told.

39

Father's Attorney:

And what did you get sick of hearing, Alicia? Did I know that my dad did it. And you got sick of her telling you that? She said it every time I went there. Every single time? Uh-huh. So that's been going on for a pretty long time? Yes. So finally you decided you would say what she wanted you to say? Yes."

Alicia: Father's Attorney:

Alicia: Father's Attorney: Alicia: Father's Attorney:

Alicia: Father's Attorney:

Alicia:

One could argue that this portion of the transcript is taken out of context. However, the entire transcript of testimony is disturbing. There are silences of up to a minute which are noted in the record. The child seems either unable to recall the question or unwilling to give an answer. She gives no detail of the "disclosed" rape by her father. In testimony to the Judge she expresses her very positive feelings about all members of her family and tells the Judge that she would feel safe at home and safe with her grandparents. The contested six month review hearing continued through August and on into September. The minor's therapist testified and continued to recommend no contact with the parents because the father was in denial and the mother was confused. This hearing concluded with the court granting permission for Alicia's brother to spend a month with his paternal grandparents and stating that it was not going to make a "true finding" whether or not the father was the perpetrator. In November, 1990, there was a further hearing to determine long term placement for Alicia. DSS SW3 recommended long term foster care. She had observed Alicia with her mother and determined that it would not be in her best interest to break

this bond. The foster parents wanted adoption. The foster mother testified that they had been told from the time of Alicia's "disclosure" that adoption would be the plan. The court ordered that visits with the mother were to continue in a therapeutic setting, that adoption should not be discussed with 40

Alicia, that Alicia was well-bonded with her mother and that long term foster care placement or guardianship would be the permanent plan. The foster mother testified that she had been led by the Department to believe that this hearing would result in a long term plan of adoption and that she was very bitter about the outcome of the hearing. Predictably, like many other court orders in this case, this one was immediately broken. The minor's therapist and the foster parents both acknowledge that they violated this order. The foster parents began to complain bitterly about the mother's visitation with Alicia and Alicia's contact with her brother. Once again, they claimed that these visits brought on nightmares, disruptive behavior, poor attention span, etc. Court orders allowed for Alicia to call her mother. This, too, became an issue. The foster parents claimed that Alicia never wanted to call her mother and the mother believed that Alicia was discouraged from calling her. The foster parents did not want the parents to give gifts. If there had been any doubt before, it became obvious to the parents and to their attorneys that the foster parents had an agenda of adopting Alicia. In fact, even before the time Alicia "disclosed", the foster parents were told by the Department that they had a very good chance of adopting her.11 By this time Alicia had been appointed a Special Advocate through Voices for Children. This advocate became embroiled in the case. When she first entered the case she met with the parents. They told her their story. She asked who could confirm that story. She was told by the parents that the Naval Investigator would. This investigator had earlier told Mr. W. that he believed he was innocent. The Voices advocate met with the Naval Investigator and he was, according to her report, convinced of the father's guilt. From that point, she did not question the father's guilt and clearly aligned herself with the foster parents. The foster mother testified that the Voices for Children advocate was the only party involved who helped them. Even when it became clear that the father was not the perpetrator, the advocate continued her support of adoption. Alicia turned ten years old in November, 1990. Children ten and above are given a voice in decisions about personal placement in Juvenile Court. By early in 1991, Alicia was expressing 11 The foster parents had a poor relationship with the Department and frequently threatened to return Alicia because of conflicts. 41

through her foster parents, her attorney, and her advocate that adoption was her choice. The Department began termination procedures, and Alicia was placed with the permanency unit and Social Worker IV (DSS PP SWIV).

As these proceedings were taking place in Juvenile Court, the criminal proceedings against Alicia's father were just beginning. Alicia "disclosed" in late June, 1990. She immediately left on an extended vacation. She was interviewed upon her return at The Center for Child Protection. One of the same Child Abuse detectives who had investigated in May and June, 1989 came back on the case. He did the police work-up for the D.A. filing. He presented the case for D.A. review by the end of November. In December, 1990, a D.A. investigator visited the serial attacker in prison. The serial attacker told this detective that at the time of the rape of Alicia he was avoiding her neighborhood. Even though the D.A.'s own record and the prosecution of the man directly conflicted with that statement, it was not challenged. In December, 1990, Mr. W. was arrested and arraigned. The preliminary hearing was held in late February, 1991, by which time Mr. W. had retained a criminal attorney. The criminal attorney immediately asked for a review of the physical evidence. As discussed in the section on investigation, the semen was found in early March. From that time until the "true finding of innocence" the criminal case was essentially put on hold. The criminal Deputy D. A., as stated earlier, immediately notified County Counsel of his findings. He assumed that juvenile proceedings, like criminal proceedings, would essentially remain in place until the results of the semen analysis were complete. Interestingly, the first mention of DNA or semen in social worker logs is found on August 28, 1991-nearly six months after the discovery. The social workers may have known about the testing but there is no indication of this in the notes. There are frequent notes of phone calls with the Deputy County Counsel on the case but no mention of new physical evidence. The Deputy District Attorney and Deputy County Counsel acknowledge that the Deputy County Counsel was informed of the "new" evidence immediately. That the juvenile proceeding would be put on hold was to prove an erroneous assumption. Reading the file, the Jury concludes that, from this point on, County Counsel, allied with an uninformed minor's counsel and Voices Advocate, was in a race

against time to arrange for Alicia's adoption prior to the availability of the DNA test results. The Department's position, urged by County Counsel from April, 1991, on, was that the identity of a perpetrator was irrelevant since the petition and "true finding" against the parents was not sexual molest but neglect in allowing the rape to occur. After two years, under orders all premised on the father as the perpetrator, the Department's position was "it just doesn't matter" when the evidence suggested the father's innocence. The Jury is deeply troubled by the facile and disingenuous nature of this position.

42

Father's and mother's attorneys, in Juvenile Court, moved repeatedly for continuances in the proceedings. The Department, minor's counsel, and the special advocate all opposed. Continuances were denied by the referee on the case. The defense was reduced to fighting for time. Father's criminal attorney substituted in as counsel in the juvenile case and asked for in camera review of the entire file and social worker notes. This was granted over the objections of County Counsel, minor's new co-counsel, and the advocate. (It should be mentioned at this point that minor's new co-counsel. who came on the case at this time, was the same supervising D.A. who screened the case and played a major role in the plea bargain.) Ten days later, father's defense counsel submitted points and authorities in support of review of therapy notes. The judicial officer granted an in camera review of these notes over the same objections. Meanwhile in criminal court, father's defense counsel (the same attorney as in Juvenile Court) subpoenaed the therapy notes. Predictably, the therapist, the Department, minor's counsel, and the advocate all moved to quash. After appropriate review by the criminal court and the Juvenile Court judicial officer, expurgated notes were provided to counsel. The therapy notes were given by the defense to the same psychologist who had earlier done a court-appointed evaluation. This expert's analysis of the therapy notes, the two evidentiary videos, and other materials in the case resulted in a chilling and compelling evaluation which unequivocally recommended against adoption of Alicia. However, this expert's opinion was ignored by the court when the defense asked for its continuances. In August, 1991, while awaiting the results of the DNA testing, father's defense counsel asked for a continuance until the results were available. Deputy County Counsel opposed on the grounds that father's perpetration of the rape was not the issue and that this was termination of parental rights based on a neglect petition. Mother's attorney argued that the case had never been treated as a neglect case. Minor's counsel argued against a continuance. The referee refused to grant a continuance. The hearing went on and father's counsel argued on the basis of inadequate counsel at the jurisdiction phase, failure of the Department to consider placing Alicia with her grandmother in MO and failure to order an ICPC. County Counsel agreed to stipulate to minor's bonding with mother but still wished to terminate parental rights, as did minor's counsel. In September father's request that a judge instead of a referee hear the termination proceeding was denied.

In October, 1991, a final termination hearing was set. All parties appeared. One of mother's attorneys realized that the statutory notice had not been properly served and the hearing was rescheduled to November. The Jury is convinced that given the momentum of the case, if this hearing had gone forward it would 43

have resulted in a termination of parental rights and a freeing of Alicia for adoption. By this time, father's attorney and mother's attorney had reviewed the therapy notes and the social study logs. They took the position that the minor had been subjected to therapy which had the effect of brainwashing her. They also discovered that the Deputy County Counsel, the same Deputy County Counsel who had been on the case since January, 1990, and who was the prosecuting D.A. on the serial attacker case had had contact with Alicia's case almost from its inception. They moved to recuse the County Counsel on the grounds of conflict of interest and appearance of conflict of interest. On November 13, 1990, this County Counsel stated to the court that as the Deputy D.A. who took the plea and prosecuted the serial attacker she knew that there were significant differences in M.O. (modus operandi) between the crimes he was convicted of and Alicia's case. On page 2 of County Counsel's November 12, 1991, opposition papers to the recusal motion, she stated "blood and semen tests in process in July, 1989, were not conducted under my direction." As already noted, the declaration to obtain blood for purposes of connecting the attacker with Alicia W. and Nicole S. was filed by this same attorney when she was the D.A. on the that case. There is no way to reconcile these two documents.

CONCERNS OF THE GRAND JURY THERAPISTS The Grand Jury has no expertise in psychological or therapeutic modalities. Review of therapist intervention will be minimal and focus only on obvious problems. The Jury strongly urges the Department and Juvenile Court to obtain competent professional expertise to review this aspect of the Alicia W. case and to examine the use of therapists and evaluators in Juvenile Court. Alicia W.’s, case had numerous therapists. While the Jury has never attempted to determine how much money was spent on therapists and psychological evaluations, the sum must be considerable. Of special concern is the premium placed on CHAMPUS, private insurance, victim/witness cases where the therapist is very well compensated. Each family member had a therapist. In addition, there were numerous psychological evaluations done throughout the duration of the case.

At the time of detention, May 12, 1989, Alicia was court ordered into therapy with a therapist "well versed in issues of sexual molest". Alicia had not been molested; she had been raped. Consistent with Juvenile Court and Department of Social Services procedures, Alicia was placed with a therapist known to 44

DSS CI. The social worker had prior contact with this therapist. Given the complexities of the case, placing the child with an M.F.C.C., as opposed to a psychologist, without any supervision seems highly questionable. A more qualified therapist was suggested early on in this case; certainly a highly qualified psychologist should have been assigned. In some cases the problems of acquiring a qualified therapist could be blamed on a lack of funds and the low amount paid by the county to court ordered therapists ($40.00/hour). In this case, the father's military benefits were paying over $100.00 per visit for two visits per week. The parents were expected to and did co-pay $5.00 per visit. The fact that there was no supervision of the therapist is disturbing in that the father's benefits administration requires a referral by a psychologist and that reports be sent to a supervising psychologist. Testimony was taken that Alicia was referred by a physician who saw her one time, did not do an examination, and was unaware that he was the supervising physician of record. The mother had a therapist prior to the rape. She was found qualified by the court. There were several attempts to remove her and replace her with someone who would be more amenable to the Department's position. It was felt that this therapist accommodated the mother's denial and was not being sufficiently demanding that the mother accept the fact that the father was the perpetrator. This pressure escalated after Alicia said her dad was the perpetrator. The father's court-appointed therapist was neutral in the beginning. He became increasingly upset with the course the case took. He was concerned about the level of competence of Alicia's therapist. He increasingly believed that the father had been falsely accused. The Department tried to remove him from the case after Alicia named the father on the grounds that he was accommodating the father's denial. The Jury has considerable concern that some evaluations in the Juvenile Court are too goal oriented and less than objective. They fail to look at all of the sources of information and evaluators frequently are limited to the information given them by the Department of Social Services. The Jury was troubled by the failure of psychologists to demand access to all sources of information.

This report will not detail the failures of Alicia's therapist. However, the notes are replete with the therapist's attempts to obtain a "disclosure" from Alicia. The Jury was particularly disturbed with the many comments in the notes about how much Alicia "liked her". These seemed irregular. Alicia was 45

taught about masturbation without any parental input or any apparent interest by the child. She was told about her mother's alleged rape by the mother's father without a release from the mother. The Jury suggests that the Juvenile Court have available to them a highly trained objective professional available to supervise therapy and to review therapeutic procedures. The Jury has substantial concerns that, based on review of other cases, other therapists on the court-approved list may be utilizing similar techniques.

THE DEPARTMENT OF SOCIAL SERVICES The handling of this case by DSS for two and a half years, and in particular the involvement of the front end Court Investigative Unit and the back end Permanency Placement Plan Unit, was poor. However, it is important to also note that there were two social workers from the Family Maintenance and Reunification Unit who tried to get the case back on track. The Grand Jury has already voiced its strong concerns about both of the other Units in "FAMILIES IN CRISIS". Recommendations about these units were made and most of these recommendations are in the process of being implemented. Once the Department recognized the serious injustice it had caused, it made efforts to provide relief to the family. It offered to pay for the subsequent therapy for the child. What it did not do was tell either the child, the family, or a very bitter foster family that it was sorry. It did not offer to reimburse this family for the expenses it had incurred. The County is now subject to a substantial law suit which perhaps could have been avoided with an immediate more humane response.

THE OFFICE OF COUNTY COUNSEL Statements made by, and a review of the written record of, the Deputy County Counsel vertically assigned to this case illuminate the obsessiveness with which County Counsel continued to push for termination of parental rights and the adoption of this child. Even after Alicia had been returned to her home and the criminal court had a "true finding of innocence," the Deputy County Counsel not only rigorously defended her earlier position but severely criticized the Grand Jury for interfering, the leadership in the Department of Social Services for responding,

and County Counsel for stipulating to the withdrawal in her absence. She saw no reason why there should have been any hurry to return this child. She still offered many scenarios for how the father could have been involved and months later refused to answer when asked whether she still thought the father was guilty 46

of the sexual assault of his daughter. This Deputy County Counsel was the same Deputy District Attorney who prosecuted the man who most likely assaulted Alicia. In July of 1989, this Deputy DA filed a declaration requesting the blood of a serial attacker who was in custody for sexually molesting several little girls who lived in the same Navy housing unit as Alicia. She was attempting to connect him with Alicia and another sexually assaulted child who also lived in Navy housing. In attempting to obtain this blood she used verbatim portions of the description Alicia gave in her initial description and commented on the similarity of the method of operations in these attacks. This document was buried and undiscoverable by the defense until Grand Jury involvement. At the time of the Grand Jury's initial involvement in this case, the Deputy County Counsel was away for an extended vacation. The Department acted quickly and stipulated to reunification, unsupervised visitation to Mrs. W., and a stay on the imminent .26 hearing. By the time the Deputy County Counsel returned from vacation, the reunification process had begun. There were still two other motions before the court. One was for the recusal of the Deputy County Counsel and another was for the withdrawal of the original neglect petition. Copley Press also filed a separate motion for access to court files and a presence at all future proceedings. The Deputy County Counsel filed responsive papers protesting her recusal. Investigation of the case and close scrutiny of the facts stated in those papers suggest that this attorney be referred to the State Bar for a determination of whether there has been a violation of professional ethics. In 1991-92 Grand Jury Report No. 4, "Problem Areas in the Office of County Counsel", there was discussion of the Grand Jury involvement in the motion to set aside the admission of neglect. The Grand Jury wrote a confidential letter to the County Counsel strongly suggesting that in the interest of justice and to protect the County from further liability, it would be advisable to stipulate to this motion. (A true finding of "innocent" had already been made in the criminal court.) The Grand Jury strongly suggested that County Counsel respond to this request within 36 hours. No response was forthcoming. The Jury foreman contacted the County Chief Administrative Officer. That afternoon the Deputy County Counsel recused herself, the Department stipulated to set aside the petition, jurisdiction was terminated, and the court offered its apology to the family.

Social workers assigned to the case as well as the other attorneys on this case and in the D.A. `5 office stated that this case was controlled by the vertically placed Deputy Counsel. There were times when she frustrated the Departments attempts to 47 help this family reunify. These allegations are strongly supported by the written record.

SAN DIEGO POLICE DEPARTMENT The San Diego Police Department investigation of this particular crime was an unfortunate mix of failure to follow proper procedures and negligence, leavened with an unfortunate dose of bad luck. The Grand Jury chose not to issue micromanagement recommendations to the SDPD in "Families in Crisis". Instead, it recommended that policies and procedures be examined and that the SDPD report back to the Jury with the improvements it has made. A written response to this Grand Jury recommendation is still forthcoming. It is hoped that with this report and with the specifics included on the failure of the police department to conduct an adequate investigation and to properly perform its duties in the examination of evidence, the SDPD will determine to fully respond to the Grand Jury recommendation.

THE DISTRICT ATTORNEY The District Attorney's office was involved in this case at two stages. The handling of the case at dependency was marginally competent. The response to the discovery request was inadequate and there was insufficient evidence at the time of the petition for the 300 (D) and later the 300 (B). The criminal prosecution was weak. The deputy D.A. assigned to the case did not adequately review the file of the other suspect or he would have discovered the July Il, 1989, declaration linking the suspect to Alicia. There does not appear to have ever been any attempt to consider seriously the facts of the case from the perspective that just maybe Mr. W. was not the perpetrator. The criminal D.A. kept County Counsel well-informed of the progress (such as it was) of the physical evidence in the case. His stated assumption that this would be sufficient to stop or

delay the proceedings is less than ingenuous as he was in frequent contact with the Deputy County Counsel on this case and was well aware that she was proceeding as fast as possible to terminate parental rights. The SDPD criminalist lab failed to find the physical evidence for two years. Then, when the evidence was found, the DA did not immediately announce this find to the defense. Moreover, did more critically, it did not expedite the testing of this evidence. Instead it was seven months before the testing was completed. The Jury has been informed that the tests themselves take less than one month. The failure by the D.A. to expedite 48 testing, in recognition that perhaps a grave injustice had occurred, was insensitive both to the family and to the liability of this County.

JUDICIAL OFFICERS This case was vertically assigned at its inception to one judicial officer. It remained with that judicial officer until some time after she was assigned to another court. Despite a neglect plea and a statement by the court that the disposition trial was not going to focus on the rape of Alicia but on the neglect petition, the trial was almost completely about the rape and attempting to connect the father with this deed. Further this judicial officer made repeated unenforced court orders. The record reflects that even though this judge consistently expressed her displeasure at social worker failure to follow court orders, she allowed DSS CI to repeatedly break her orders in order to obtain the results desired by the social worker. The referee, assigned to this case in its later stages, twice failed to grant a continuance despite the existence of new evidence which might exonerate the father. He ruled for the Department that the guilt or innocence of the father was irrelevant in a neglect petition. This decision ignored the history of the case. This referee did preside over the final stages of this case and expressed his apologies to the family on the final day of court when the neglect petition was withdrawn.

CONCLUSION It was suggested that this report be called "a parade of

horribles in a system that must be fixed." Sadly, what is unique about this case is not the number of mistakes that were made. What is unique is that analysis of DNA which had gone detected 20 months ultimately exonerated the father and thereby forced the system to confront those mistakes. In most cases there is no physical evidence. The Grand Jury has reported this case in detail in the hopes that the "horribles" experienced by Alicia and Alicia's family in their separate travails through the Juvenile Justice System of San Diego County need never be repeated.

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