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November 19, 2004; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2000-CA-002734-MR

JOEY DEAN HERNDON

APPELLANT

v.

APPEAL FROM CLARK CIRCUIT COURT HONORABLE JULIA HYLTON ADAMS, JUDGE ACTION NO. 00-CR-00048

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION REVERSING AND REMANDING WITH DIRECTIONS ** ** ** ** ** McANULTY AND SCHRODER, JUDGES; MILLER, SENIOR JUDGE.1 A male teacher at a day care was targeted as a

BEFORE:

SCHRODER, JUDGE:

child abuser by an inexperienced and unqualified detective. Without any physical evidence, eyewitnesses, or corroborative evidence, the detective went so far as to manufacture evidence

1

Senior Judge Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

to ensure a conviction.

The teacher was convicted of one count

of first-degree sexual abuse2 (a class D felony) and four counts of (non-sexual) third-degree criminal abuse3 (class A misdemeanors). The felony conviction was built on a foundation

of incompetent, unreliable, and even manufactured evidence, and, thus, cannot stand. The record includes a videotape of all four

misdemeanor incidents, which exonerates the appellant. Therefore, we reverse and remand. The Lighthouse day care4 was a child day care located in Richmond, Kentucky, run by the United Apostolic Lighthouse Church. The day care was set up as a ministry of the church, Reverend Anthony

and catered to underprivileged children.

Portis ("Brother Portis") was the church pastor, and his wife Anatole Portis ("Sister Portis") was the director of the day care. The day care enrolled children ranging in age from The day care provided childcare,

infants to school-age.

including meals and activities for the children, in a Christian atmosphere. A high percentage of these children came from

families who were under the supervision of social services, and unfortunately, many had prior case files for abuse and neglect.

2 3

KRS 510.110. KRS 508.120. 4 The day care at issue is referred to in the record in several ways, including "Lighthouse Child Care Center" and "Lighthouse Day Care Center". We shall refer to it as the "Lighthouse" day care.

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The day care also had a van for children whose families could not provide transportation. The Lighthouse day care was located in a building at 1417 East Main Street, in Richmond.5 The physical layout of this The

building is important for an understanding of this case. building had two stories.

The first floor, where the day care

was located, included a large room, an infant room, a small kitchen, and bathrooms. in the large room. The children played, ate, and took naps

The day care had a videotaping system which

recorded the activities in the large room, as part of the day care's normal operating procedure. There was a door to a

stairway leading up to a second floor landing which had a copy machine and a storage area. landing: apartment. There were two doors off the

one to Brother Portis's office and one to an The office and apartment were separate units, and Children were

the office was not accessible from the apartment.

not allowed to go upstairs, unless they were being taken up to the office for a conference with Brother Portis because of their misbehavior. The Lighthouse day care was open Monday through Friday, from 6:00 a.m. to 5:30 or 6:00 p.m. time, part-time, and "drop-in" children. There were full-

There were a number of

5

In January of 1999, the Lighthouse day care moved out of the East Main Street building, to a new location at 219 Moberly Avenue, also in Richmond. The Moberly Avenue location is not relevant to this case.

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caregivers, teachers, and teacher's assistants assigned to the different age groups. The daily routine included hand washing,

breakfast, lunch, and snacks, activities, naptime, and playtime. Many of the children had behavior problems (including violence and foul language). Discipline was handled in several ways.

There were "timeouts" and "criss-cross applesauce," which was when a teacher would sit on the floor and hold an unruly child until the child calmed down. Another form of discipline was for

a misbehaving child to be taken upstairs to the office to be lectured by the church pastor, Brother Portis. The day care

contacted parents about serious misbehavior and parents would sometimes be required to come to the day care for a conference about their child's behavior. Also important for an understanding of this case, is the manner in which the accused teacher, Joey Herndon, became associated with the Lighthouse day care. Joey graduated from

high school in 1986, and entered the University of Kentucky that fall, majoring in electrical engineering. After two years at

UK, Joey transferred to the computer science program at Eastern Kentucky University. In the spring of 1990, Joey met Jesse

Bailey on the EKU campus where Jesse was involved with the Lighthouse church's campus ministry. Joey was impressed by

Jesse's knowledge of the Bible and accepted Jesse's invitation to the Lighthouse church. Thereafter, Joey, began attending the

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Lighthouse church regularly, and was "born again" into the church. Joey became very active in the church, and, in the fall of 1991, Sister Portis asked Joey to work at the Lighthouse day care. Joey was still a student at EKU and also working at

Kroger's, so initially he worked at the day care part-time when his school and Kroger schedule permitted. At first, he helped

Sister Portis with things such as tying shoes, serving food, and cleaning up, basically whatever Sister Portis asked him to do. Joey learned about child care from Sister Portis, and in the spring of 1992, began working full-time at the day care. December of 1992, Joey graduated from EKU, with a teaching degree in computer science and math for the high school level. Joey considered the church to be his "life," and continued in his job at the day care. In 1994, Joey and Jesse moved into the In

aforementioned apartment on the second floor of the East Main Street building. In the course of his employment at the day care, Joey performed a variety of duties, including teaching, helping with activities and meals, and driving the van, as well as administrative work, such as keeping track of attendance and the food program.6 Joey received annual child care training (per

state requirements) in subjects such as art, discipline, and
6

The state regulated free-meal program.

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guidance, and also completed a one-year correspondence course in child development. He also moved into a supervisory role. In

early 1997, Sister Portis opened a branch of the Lighthouse day care in Lancaster, Kentucky. In October, 1997, Joey was

certified by the state as the Richmond Lighthouse day care director. Brother Portis, as pastor of the Lighthouse Church,

was Joey's supervisor. Detective Ellen Alexander started out as an undercover narcotics officer for the Richmond Police Department. formal education consists of a GED. Her

In 1994, she completed

basic training at the Criminal Justice Bureau of Training and worked as a uniformed road patrol officer before becoming a detective in January, 1999, when she was placed in charge of sex abuse investigations for the Department. For detective

training, she completed the "Reid Interview Interrogation School."7 In March of 1999, she went to a sixteen-hour "child

abuse school." This case began on March 19, 1999, when Detective Alexander received a phone call from the mother of a fourteenmonth-old girl, who had recently been enrolled in the Lighthouse day care. The mother was upset that the day care van had been Joey Herndon

an hour late bringing her child home on March 1.

7

The United States Supreme Court is very aware of, and critical of, this method. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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was the van driver, and had explained to the mother that no one answered when he first tried to drop off the child. He Prior to

therefore took some other children home, and returned.

calling Detective Alexander, the mother had complained about the matter to social services. Social services had looked into the The

matter, found nothing of concern, and dismissed it.

inexperienced Detective Alexander, however, took a different approach. Although there was no evidence that this child had

been abused by anyone, Detective Alexander, fresh from her sixteen-hour child abuse class, concluded she had uncovered widespread sex abuse at the day care, and that Joey, the van driver, was the perpetrator. I. THE INVESTIGATION Detective Alexander launched an investigation which was flawed procedurally from the beginning. Instead of looking

at the evidence to see if a crime was committed, she concluded sex crimes were committed and then launched an investigation seeking evidence (even fabricated evidence) to prove her conclusion, disregarding all evidence to the contrary. parents quickly became aware of her investigation. Day care

Detective

Alexander appeared on television and was interviewed by the local newspaper, the Richmond Register, where she urged people who had their children in the day care from 1991 (the year Joey was hired) to the present to contact her to see if their

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children were sexually abused.

The Lexington Herald Leader

quoted Detective Alexander to say she expected more victims. There was extensive media coverage of Joey's arrest (by Detective Alexander without a warrant at the beginning of the investigation). The day care was closed. Outrage and hysteria

swept through the community.

Upset and angry parents and

grandparents of children who had attended the day care formed a group called the "Madison County Petitioners for Child Safety." The group met to discuss the investigation, and held protests at the Madison County jail where Joey was being held, and at the courthouse. Within weeks of Joey's arrest, the group had

collected thousands of signatures on a petition to keep the day care closed.8 Amidst the hysteria, parents and children were being interviewed for the investigation. Ultimately, approximately

300 children and their parents or guardians were interviewed. Parents were warned that their children's misbehavior, such as acting out or temper tantrums, could be a sign that they had been sexually abused by Joey. Interviews with the children

sought to elicit "disclosures" that Joey had sexually abused them in some way.9 Many of these children were very young, or

had not even attended the Lighthouse day care for years.

8 9

Many parents, including J.B.'s, filed civil suits. Add to the scenario, Detective Alexander's interrogation training. She was trained in the "Reid" interrogation method which is notorious for producing

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The case against Joey Herndon was built entirely on interviews. The entire investigation resulted in no witnesses,

no physical evidence, or corroborative evidence of sexual abuse of any child at the Lighthouse day care. Nevertheless,

Detective Alexander was able to secure fifteen felony indictments for various sexual offenses involving eight boys and three girls. To say the evidence was weak requires a leap of It is

faith that there was any evidence of sex abuse at all.

actually alarming to this Court that an individual could be indicted, much less tried, on the facts and shenanigans in this case. According to Detective Alexander's notes, a mother told her that her twenty-one-month-old son said "Dasha" (another child) did something inappropriate at the day care. For her

affidavit for a search warrant, Detective Alexander substituted "Joey" for "Dasha." Neither Detective Alexander nor the The

examining doctor could understand the child's speech. felony indictment was for "Joey."

false confessions. The Reid approach assumes something happened and the interview is not supposed to end until a confession or disclosure is made. Our United States Supreme Court reviewed this interrogation method in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and was so appalled that it created the Miranda warnings which are required to be given before each interrogation of a suspect (but not witnesses). The Supreme Court described the mechanics or methodology of a "Reid" interrogation, which include: to display an air of confidence in knowing what happened and appear to only be interested in confirming certain details; dismissing and discouraging explanations to the contrary; to put the subject in a psychological state where his story is merely an elaboration of what the police purport to already know; interrogating steadily and without relent; and using trickery. Miranda, 384 U.S. at 448-455, 86 S. Ct. at 1614-1618.

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Another felony indictment involved a twenty-four-month old (who had been in the day care for two months in late 1998), whose mother remembered he had said "bubby hurt" when he was 1820 months old and recently said "mean man." Because of the

investigation, the mother now believed the child must have been referring to "Joey." Joey was indicted. Neither Detective

Alexander nor the investigating doctor could get anything out of the child. An older child, T.G., age eight, had attended the Lighthouse day care when he was five and six. Detective

Alexander was not able to get any "disclosures" out of T.G., but Cindy Maggard, a social worker working with Detective Alexander, was able to "substantiate" sexual abuse and fingered "Joey" as the perpetrator based on behavior for which T.G.'s family had been investigated for before he ever attended the Lighthouse day care. It gets better. "Joey" was indicted, and at the When asked When pressed

competency hearing, T.G. did not recognize Joey. what Joey "did" he could only remember "watch us."

for something bad that Joey did, T.G. could only say "I can't remember what granny told me. I keep forgetting."

T.G. was not the only child told to make a disclosure. Another eight-year old, T.R., when questioned by her parents, originally denied any abuse and told them she could not even remember Joey. She had not attended the day care since she was

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four years old, and had been out of the day care for four years, with no concerns. Nevertheless, Detective Alexander and Missy

Jo Wilson (another social worker) still wanted to interview T.R. and amazingly got T.R. to "disclose" and Joey received another count to the felony indictment. At the June 29, 2000,

competency hearing, when asked about Joey, T.R. made no statements involving sexual abuse. She was asked if anyone had

told her what to say and she revealed that two ladies had come to pick her up for court, and one lady had told her what to say but she forgot. At trial, T.R. was asked about the Lighthouse Nevertheless,

day care and she did not remember going there.

through leading questions, the prosecutor did get T.R. to "disclose" one incident - that "Joey" had "touched" her at the Lighthouse day care. The defense asked T.R. if anyone told her

to say that Joey had touched her and she readily admitted someone had, but she couldn't remember their name. No matter

how hard the prosecutor tried after that, T.R. would not say that the touching "really" happened. Another eight-year-old, E.J., had an interesting story. He had not been at the day care for several years when

the investigation started, and in his first interview, did not remember Joey doing anything bad to him.10 remembered an amazing story.
10

Subsequently, he

Joey had attempted to touch him

E.J.'s grandmother had even worked at the Lighthouse day care for a time, with no concerns.

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"inappropriate" but he fought Joey off and ran away.

Joey's

response was to start shooting at him but E.J. zig-zagged and the bullets all missed. Of course, Joey was indicted (without

Detective Alexander finding any bullet holes). S.B. was not quite five years old when the investigation started, and had attended the day care on and off. (S.B. was off for a time because her mother had inflicted a serious head injury upon her. The mother was serving time for

the incident and when S.B. recovered she returned to the day care.) S.B. had expressed no concerns with the day care until

interviewed by Detective Alexander who racked up two more felony indictments. However, at the competency hearing, she could not

identify Joey or remember why she did not like him. The charges on the other children included in the indictment were equally lacking in substance. To say the The

Commonwealth's case was weak is an understatement.

Commonwealth stipulated that no physician had ever reported any suspicion of sexual abuse as to any of the children included in the indictment, as physicians are required to do by KRS 620.030 if they suspect abuse. None of the doctors selected to examine

and interview the children for the investigation and trial found any physical signs of sexual abuse. No eyewitnesses were found

and there was no corroborative evidence as to any of the allegations, save one, J.B., for whom Detective Alexander

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fabricated evidence, and which resulted in the one felony conviction in this case. J.B.'s case started out no differently than the other children. He attended the Lighthouse day care from 1994, when

he was 18 months old, until late May or early June of 1998, when he was five years old. He usually rode the van. His older

sister attended the day care as well.

The family had no

concerns of sexual abuse while J.B. was attending the day care, or at any time leading up to Detective Alexander's investigation. J.B. had not attended the Lighthouse day care for almost a year when the day care story broke in March, 1999. March 30, 1999, Detective Alexander and social worker Cindy Maggard interviewed J.B., who was not quite six years old. During this interview, they got him to say that he was touched by Joey. The same day, Detective Alexander sought and executed On

a search warrant on the East Main Street building. The search included the second floor,11 which included the storage area, Brother Portis's office, and Joey and Jesse's apartment. Detective Alexander was present at the search. What

would become significant to this case are three items she took from Brother Portis's office; a picture of a lighthouse and

11

The day care had been located on the first floor.

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birds12 (the "eagle picture"), a wood plaque with an eagle on it (the "eagle plaque"), and a mug with a lighthouse on it. She

also picked up a child's toy necklace, allegedly from the floor of the apartment. The next day, Detective Alexander interviewed J.B. again, by herself, for the purpose of discussing the furnishings in the "apartment." Following this interview, she wrote up a

Uniform Offense Report, wherein she falsely reported that J.B. could accurately describe Joey's apartment. In this U.O.R, she

explained that J.B. had "advised" her that he had been in Joey's apartment, and that he identified the eagle picture and eagle plaque as having been in the apartment. Knowing full well that

the eagle picture and eagle plaque were actually found in the office, she nevertheless went on in the report to verify these items were, in fact, found in Joey's apartment in the search. Thus began the lie that J.B. could accurately describe items in Joey's apartment. This lie, that J.B. could describe items found in Joey's apartment, was fed by Detective Alexander to J.B.'s mother, as proof that J.B. must have been taken into the apartment and abused.
12

The angry mother became one of the

We will refer to the picture as it was at trial, as an eagle picture. The picture appears to be of a lighthouse, ocean, and flying birds. Detective Alexander originally called it a picture of eagles in her search warrant return. Joey's roommate, Jesse Bailey, testified that Brother Portis bought this picture from Captain D's, and that it had always hung in Brother Portis's office.

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leaders of the protest group.

J.B. was put in sex abuse

counseling with a social worker, and was taken to a child abuse clinic, where he was interviewed and examined by Dr. Janice Kregor, both of whom were told this lie.13 Detective Alexander

also fed this misinformation to the prosecutor,14 who relied on this bogus evidence in trying the case. II. THE TRIAL Due to the publicity and hysteria surrounding the case, the trial court granted a change of venue from Madison County to Clark County.15 On the morning of trial, August 23,

2000, in chambers, the prosecutor revealed a last minute breaking discovery. The child's toy necklace, allegedly found However,

in the apartment, previously was of no significance.

while preparing items for trial the past week, Detective Alexander noticed what appeared to be African-American hairs in the "knot" of the necklace, which was made out of rope. Detective Alexander believed the hairs were a lead to the necklace's ownership, and decided to show it to "all the children." The second child she showed it to was J.B., who

claimed it was his and told her that he might have lost it on
13

J.B.'s examination was normal, and showed no physical evidence of sexual abuse. 14 As evidenced by the "Commonwealth's Response to Pretrial Order" of July 14, 2000, wherein the prosecutor states that J.B. has a good recall of items located inside the defendant's apartment. 15 The change of venue order even notes a June, 2000, Lexington Herald Leader article which reported Joey had been threatened with harm.

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the playground.

J.B., however, is Caucasian.

The importance of

finding something of J.B.'s in the apartment as possible corroborative evidence was not lost on the defense. The defense

immediately moved for a continuance to have the hairs tested to see if they were, in fact, African-American hairs, which would tend to prove the necklace was not J.B.'s (exculpatory evidence). The trial court denied the continuance and the trial

immediately commenced thereafter. A well-prepared J.B., now seven, testified at trial. At this time, he had been out of the day care for over two years. tell. With leading from the prosecutor, J.B. had a story to One day at day care,16 Joey grabbed J.B. by the shirt,

dragged him upstairs into the apartment and threw him on the bed. his. There, he made J.B. touch his "pee-bird" and Joey touched Both Joey and J.B. had their clothes on all the time.

When the prosecutor asked if he tried to get away, J.B. said that he tried to get away but Joey pulled a knife and "tried to get me." As to how the standoff ended, J.B. said his mother

pulled up outside so Joey put the knife away. The Commonwealth had no evidence to corroborate any of this story. Therefore, the prosecutor's strategy was to show

that J.B. could describe items in the apartment as proof that he
16

No one asked, and J.B. did not say, "when" this alleged incident happened. However, J.B. was in the day care from the time he was 18 months old, until May or June of 1998, when he was five years old, and had been out of the day care for almost a year before the investigation began.

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was in the apartment, from which the jury could infer the abuse happened. The prosecutor had J.B. identify the "eagle picture"17 J.B. said

and "eagle plaque,"18 and asked where he saw them. they were hanging over Joey's bed.

The lighthouse mug19 was

added to the story as well, and J.B. identified it, and said that it was in the apartment too, although he did not know where. We know from earlier in the investigation that Detective

Alexander found these three items in Brother Portis's office, not Joey's apartment. It is unknown to this Court why she ever

fabricated finding these items in the apartment to back up J.B.'s story. J.B. could not remember anything else about the apartment, except for these three exhibits, all of which came from the office. J.B. was asked if he had ever been in the This is not

office, and he denied that he was ever in there. true.

Teachers called as witnesses by both the Commonwealth and

defense, testified that J.B. was a frequent discipline problem who had been taken up to the office to talk to Brother Portis about his behavior.20

17 18

Commonwealth Exhibit 18. Commonwealth Exhibit 21. 19 Commonwealth Exhibit 19. 20 J.B. was considered by his teacher as one of the worst behaved children in her class. J.B.'s mother admitted that the day care had sent notes home to her about J.B.'s fighting, and that she had been called to come to the day care for a conference in the office as well.

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After being reminded that he was wearing something around his neck when Joey dragged him upstairs, J.B. said he was wearing the rope necklace21 and immediately volunteered that "I might have lost it up in his apartment." Reminded that when

Detective Alexander first showed him the necklace a few days ago, he told her he lost it on the playground, J.B. claimed that he had told her he could have lost it in the apartment or on the playground. On cross-examination, the defense tried to reconcile J.B.'s trial testimony with the completely different story that he had told to Dr. Janice Kregor, who had testified earlier in the trial. Dr. Kregor had interviewed J.B. and his mother in Dr. Kregor

connection with the investigation on April 20, 1999.

had testified that, in response to her questions about what Joey did, the story J.B. had told her was that Joey "sticks his finger in my butt," that it happened "about twice on the weekend and 45 on the days," and that one time Joey grabbed J.B.'s peter and ran away. When Dr. Kregor had asked if Joey made J.B. touch When questioned about this

him, J.B. had said "nope."

conflicting story, at first, J.B. said he couldn't remember seeing Dr. Kregor because that was when he was six and now he is seven. When the defense tried to refresh his memory by reading

him the statements he had made to Dr. Kregor, J.B. vehemently
21

Commonwealth Exhibit 22.

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denied that he ever told Dr. Kregor those things and insisted that they never happened and that the story he told today was what really happened. Detective Alexander assisted the prosecutor with the trial, and even sat at counsel's table for the duration of the trial. She was also the Commonwealth's star witness at trial, At

having opened the investigation and nursed it to trial.

trial, she attempted to mislead the jury whenever possible if it benefited her case. In J.B.'s case, she tried to bolster his

testimony that he was in the apartment by manipulating the facts. She attempted to represent the three items in J.B.'s

story, the eagle picture,22 eagle plaque,23 and lighthouse mug,24 as having been in found in Joey's apartment. Even when the

prosecutor initially had some question about the exact location where she found these items, she dispelled his concerns with statements like the office and apartment were all "one unit." Fortunately for the defense, other officers of the Richmond Police Department had videotaped the search. The defense

notified Detective Alexander that they had seen the video, and were going to play the tape to the jury (and in fact did so) before she finally conceded (as the tape would show) that the

22 23 24

Commonwealth Exhibit 18. Commonwealth Exhibit 21. Commonwealth Exhibit 19.

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eagle picture,25 eagle plaque,26 and lighthouse mug27 were actually recovered from Brother Portis's office, not the apartment, and that the office and apartment were separate. Another deceit at trial by Detective Alexander involved the child's necklace which was the focus of the pretrial hearing in chambers a few days earlier.28 At the

hearing, the Commonwealth disclosed to the defense that it had just learned that the necklace was J.B.'s, although Detective Alexander first believed that hairs found in the knot of the necklace were African-American hairs (possible exculpatory evidence since J.B. is Caucasian). At trial, Detective

Alexander claimed to have found the necklace on the floor of Joey's bedroom. She also testified that J.B. identified it as However,

his and said he might have lost it on the playground.

contrary to the representation made a few days earlier in chambers, she refused to admit that the hairs appeared AfricanAmerican or that she ever believed that the hairs were AfricanAmerican. Another noteworthy attempt to mislead the jury occurred when Detective Alexander described in detail how she found a turquoise diaper bag containing children's clothing and underwear in Joey's bedroom (to suggest to the jury that Joey
25 26 27 28

Commonwealth Commonwealth Commonwealth Commonwealth

Exhibit Exhibit Exhibit Exhibit

18. 21. 19. 22.

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must be of despicable character).29

This "smoking gun" was

dispelled by the defense when he informed Detective Alexander that he had seen the videotape of the search warrant which showed the bag was not found in Joey's bedroom. It was found in

the day care's upstairs storage closet, and had been carried into Joey's bedroom by another police officer. Showing that

Detective Alexander knew this all along, defense counsel had her read from the notes she was testifying from, which listed the diaper bag as having been found on the "top shelf on right at top of stairs" (the storage area).30 Through Detective Alexander, the Commonwealth also introduced four videotape snippets which served as the basis of four (non-sexual) misdemeanor counts. As previously noted, the

Lighthouse day care had a videotaping system, which recorded the goings on in the large room, as part of the day care's normal operating procedure. In her search, Detective Alexander seized She watched them all, eight hours each No evidence of sexual abuse was

18 of these videotapes.

(or about 144 hours worth). found on the tapes.

However, she picked out four snippets which

29

Detective Alexander emphasized the fact that the diaper bag was found in Joey's bedroom, even going into great detail of just where she found it. "When you walk in the bedroom, you go straight back. There's a small closet to your left. The diaper bag was in the very back, sitting beside the closet. Not inside the closet, but beside the closet." 30 Although the Commonwealth appeared to consider this bag a very important piece of evidence, Detective Alexander testified that she was not able to find out who it belonged to. At trial, when Joey was asked if he could identify it, he simply opened the bag, and written inside was the name of Sister Portis's daughter.

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showed Joey using the "criss-cross applesauce" hold on four children. The defense rewound the tapes, and showed the Even the trial court

misbehavior which precipitated the hold. found there was no physical injury.31

Joey took the stand on his own behalf, testifying at length about the day care and himself. Most importantly, he Teachers No

denied ever abusing any child, sexually or otherwise. and even a former student testified on Joey's behalf.

witness, called by either the Commonwealth or the defense, which included the teachers who actually had these children in their classes, ever saw Joey do anything sexually inappropriate with any child. No witness, including the teachers and day care

workers, had any corroborative evidence that J.B. was ever in the apartment. Even Joey's roommate Jesse Bailey's testimony

included that he never saw any children in the apartment with Joey. The prosecutor's closing argument reflected the weakness of his case. His only corroborative evidence (save the

necklace) that J.B. had been in the apartment was exposed as a fabrication by Detective Alexander. His alleged victim, J.B.,

gave a contradictory story to the one he told Dr. Kregor and denied telling the first story to the doctor. Without evidence

31

The prosecutor's position was that the use of the hold for discipline automatically constituted fourth-degree assault, or third-degree criminal abuse.

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to comment on, out of desperation, the prosecutor attacked Joey's choice of the teaching profession as proof that he was a child molester. Why else, he queried the jury, would a passing

engineering student work his way down to education, other than as part of a plan to gain access to young children? The

prosecutor also forgot to change his closing argument after the fabrication by Detective Alexander was exposed, mistakenly telling the jury that J.B. had given specific details of the apartment (the picture, plaque, and mug) which proved J.B. was telling the truth. The prosecutor went on to embellish J.B.'s

story, dramatically asking the jury to remember how J.B. said the necklace was "torn off" in the apartment or as he was dragged up the stairs

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