It is impossible to know whether such evidence would have changed
the jury's verdict. Prosecutors and police stand by the conviction,
saying the boys' core testimony about being forced to perform oral
sex on the teacher was consistent and found credible by the 12 jurors.
"This guy's a freak," Oakland County Prosecutor David Gorcyca said
in a November interview with a Free Press editor, noting that Perry
had a collection of photographs of children and youth-oriented
videos. The photos and videos were never introduced at trial, and
Perry contends they were innocent.
The Perry case has been marked by unusual turns from the outset
Prosecutors initially declined to charge him in October 2005, citing
lack of evidence, before reopening the case more than three months
later. Then last month, two months after Perry's conviction, the
trial judge took the unusual step of delaying sentencing to
reconsider the jury's verdict after witnesses at the school -- never
interviewed by police -- disputed the prosecutors' account.
The judge is considering defense motions claiming Perry, who is
jailed in Oakland County, was denied a fair trial because his
original attorney, Ray Correll, performed poorly and because the
attorney allowed him to wear an electronic tether visible to jurors.
The device might have implied guilt to jurors, Perry's appellate
lawyers say.
Langford Morris is expected to rule in January. Perry faces up to
life in prison.
Children's testimony
Perry's march through the legal system began with the events of Oct.
12, 2005. Two hours after arriving for his first day of school, a
5-year-old would insist that Perry pulled him from a supervised
lunch line and forced him to perform oral sex in a vacant room.
Later the child alleged a 4-year-old was assaulted as well.
The 4-year-old initially denied being attacked. Over the next
several months, during the investigation and at trial, the
children's statements proved inconsistent on several issues,
including whether they were together or alone when they said they
were attacked.
The seven-day trial was built almost entirely around the testimony
of the children and their mothers. Experts in child sex-abuse cases
say this is common because the assaults are "crimes of privacy," and
corroborating evidence is often difficult to establish unless there
are signs of physical trauma, which were not present in this case.
Dr. Melvin Guyer, a legal expert and professor in the University of
Michigan's department of psychiatry, said that although child
witnesses are often truthful, their testimony must be handled with
care, particularly when there is evidence that parents or other
adults may have repeatedly interrogated the children.
"The allegations here are as bizarre as those in the 1980s day-care
cases," he said, referring to prosecutions of preschool workers --
most notably at the McMartin Preschool in California -- that were
discredited when it was found that repetitive, leading questions may
have caused the children to invent accounts.Young witnesses are not
inherently untrustworthy. Researchers have found that children as
young as 3 can accurately recount experiences.
But Guyer said even graphic sexual descriptions by children don't
guarantee that an attack occurred. Studies indicate that children,
especially those younger than 6, can embrace false scenarios under
repeated, leading questioning, he said.
One study by Central Michigan University, published in 2001 and
involving 114 children, found that up to 40% of children under age 8
will add false details, including about unpleasant physical contact,
to recollections if they're coached or questioned repeatedly.
The hearsay exception
Because there is often little to corroborate a child's account in
criminal cases, prosecutors often seek testimony from the parents or
other adults in whom a child confided. Courts usually restrict
hearsay testimony, which includes secondhand accounts, but often
make an exception in cases involving young witnesses, who may have
limited memories or find it difficult to describe their abuse in court.
But this exception is limited: In Michigan, the child must be under
10 and his or her statements to the adult must have been made
spontaneously and, in most cases, shortly after the reported incident.
"That's because after a while, it loses its trustworthiness," said
Lawrence Dubin, a professor at the University of Detroit Mercy Law
School and an expert on rules of evidence.
At Perry's trial, both mothers testified not only to what their
children said in the immediate aftermath of the alleged assaults,
but also about what the boys said weeks and months later. Both
acknowledged repeatedly questioning the boys at length, including on
one occasion questioning them together months after the allegations
were made.
Experts say children's memories can be easily contaminated under
continual questioning.
"After that, it becomes a lot harder to tell what's false and what's
not," said Dr. Kamala London, a professor and researcher of
children's testimony at the University of Toledo, who has served as an expert witness in numerous trials.
"Kids, especially young ones, come to believe the event took place, and will even begin to supply details."
Gorcyca remains steadfast that the boys' accounts were believable,
as the verdict reflected.
The rape shield law
Yale Kamisar, a law professor at the University of Michigan whose
books are staples in law schools nationally, said another key trial
issue was how the rape shield law was used.
The law was created so rape victims would not have to fear having
their sex lives gratuitously used against them in court, Kamisar said.
At Perry's trial, the law may have been misapplied, Kamisar said,
when the jury was prevented from hearing testimony about whether the
5-year-old boy had been exposed to sexual contact previously.
The judge ruled that jurors could not see a portion of a transcript
in which the child told sexual-abuse counselors -- who interviewed
him on behalf of police -- that he was previously molested by a "kid
named Naz."
Jurors also never learned that the boy's mother had reportedly
confided to a teacher that she was angry after hearing her son say
he was "tea-bagged." The word is slang for forced oral sex. The
teacher, Lynn Duncan, said the mother also suggested that something
similar happened to the boy while they lived in Chicago.
The mother declined to comment on the boy's past.
Kamisar said of the shield law's use in the Perry case:
"I don't think those who drafted this law could have begun to contemplate it
being used any way like this. Technically ... this law may apply. But the people who drafted this never had anything this oddball in
mind."
Lawyers who specialize in sexual assault cases said it is important
to call experts who can explain the limitations of children's
testimony, which didn't happen in Perry's case.
"These are very difficult cases to try," said Southfield attorney
Gail Benson, whose practice centers on defending sexual assault
suspects. "You really need a specialist."
Perry's trial lawyer, Correll, disagreed.
A profiler's view
Kenneth Lanning, a retired FBI behavioral analyst who spent much of
his 33-year career at the bureau studying people who prey on
children, said pedophiles generally fall into categories, and those
who turn to teaching, coaching or other activities that bring them
close to children usually befriend victims over time to gain their
trust.
In this case, the 5-year-old boy was attending his first class at
Key Elementary. He and the 4-year-old had never been in Perry's class.
While acknowledging there are exceptions, Lanning, who is not
involved in the Perry case, said the idea that a veteran teacher
would suddenly abduct two boys he didn't know was inconsistent with
how most pedophiles operate.
"Generally, people who go into teaching, or coaching, or scouting because they are looking for their victims there will groom the
children for a period of time, and develop a relationship," he said, adding: "It seems here they are saying a 'groomer' suddenly became a
'snatcher.'
That's not consistent with the patterns we know. It appears that what you have being put forth in this case is the urban
legend of what people think of when it comes to child molesters: some creepy guy leaping out of a dark corner."
Lanning said he was troubled that some witnesses -- such as teachers
in or near the room where the boys said they were attacked -- were
not questioned by police before trial.
Oak Park Public Safety Director John McNeilance said his department
was at a disadvantage because prosecutors initially declined to
pursue the case and it remained closed for four months before
Gorcyca's office charged Perry.
"We lost the momentum in the investigation," McNeilance said. He conceded, however, that detectives should have interviewed witnesses
assigned to the special-education room where prosecutors said the attacks took place, "well before the trial."
Some of those school employees have told the Free Press, and Perry's
new defense team, that the room was occupied throughout the school
day and the assaults could not have happened as described.
Erik Dolan, the detective in charge, relied on a statement by the
school principal that special-ed children were assigned a different
room for lunch, meaning the room could have been empty. Dolan has
since sought to interview the new witnesses.
Correll wept when the verdict was announced Sept. 20 after the jury
deliberated five hours.
"I was devastated," he said. "The facts in this case are incontrovertible -- two small children say they are pulled from a
supervised lunch line, taken into a room that happens to be full of people, and sexually assaulted, all in eight minutes. It couldn't
have happened."
Gorcyca, who has criticized Free Press coverage of the case and
refused to talk to reporters in recent weeks, said in October:
"Somebody is trying to escape responsibility for poor performance in his own work. It's not our job to do his defense."
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