Some prosecutors, at both the state and federal level, find it almost irresistible to engage in misconduct when prosecuting child sexual abuse cases. Those rogue prosecutors, who have no scruples about the rule of law, might argue that the end justifies the means. However, they are forgetting the long-term damage they do to public’s confidence in the criminal justice system and its ability to do justice for everyone it serves.
Take for example the case of David Albert Soloway who was convicted in Campbell County, Kentucky and received a 45-year sentence after the 8-year-old daughter of his girlfriend accused him of molesting her. The case against Soloway was weak (a classic she said/he said kind of case) so the prosecution felt compelled to cheat.
Impermissible Comments on Right to Remain Silent
Soloway did exactly what anyone should do when faced with any allegation of improper sexual conduct with a child—do not speak to the police. For prosecutors in his case, however, this was clear, indisputable evidence of guilt—and that’s the way prosecutors presented his refusal to talk to the police to the jury:
“Ladies and gentlemen of the jury, an innocent man, when he hears he’s accused of child sex abuse, does he—what does he do? He tells everybody he knows. He goes to law enforcement and, ‘I didn’t do it. What do I need to do? Who do I need to talk to?”
This past July the Kentucky Supreme Court found this jury argument way out of professional conduct bounds and reversed Soloway’s conviction.
Federal Prosecutors Engage in Misconduct
On October 17, 2017, the Ninth Circuit Court of Appeals was forced to do the same thing in the Christopher Preston case—reverse his conviction because government prosecutors engaged in a pattern of misconduct.
In August 2015, Christopher Preston was convicted on two counts aggravated sexual assault of a child that resulted in a 162-month prison sentence and a lifetime of registration as a sex offender.
The offenses Preston allegedly committed occurred in 1998 when he and his then-wife, Andrea, lived on the Tohono O’odham Reservation in Tucson, Arizona.
The Preston family was friends with Sean Fox and his wife Kathleen Rosenberg. Sean had three stepsons. One of Sean’s stepsons, 10-year-old Timothy Rosenberg, played on a little league baseball team coached by Preston.
Around 2000, the Fox/Rosenberg family moved to Wichita, Kansas and lost contact with the Preston’s.
In March 2012, while experiencing serious substance abuse problems and trouble with law enforcement, the then 24-year-old Timothy Rosenberg told his mother than Preston had sexually abused him during that 1998 little league baseball season.
Kathleen informed the police about the sexual misconduct allegation and took Timothy to see the mother’s former therapist, Gail Bussart.
Bussart treated Timothy between March 2012 and January 2013. Rosenberg told the therapist that Preston had sexually abused him in 1998. He did not provide any specific details about the alleged abuse.
In October 2012, a Tohono O’odham detective interviewed Preston about the sexual misconduct allegations. He denied them. Several days later an FBI agent named Mark Dellacroce interviewed Preston and administered a polygraph exam to him. Once again Preston denied the allegations.
Bussart stopped seeing Rosenberg in January 2013 because she believed he was lying about his substance abuse issues.
During a period between March/April 2013, Tohono O’odham police and the FBI interview Rosenberg about the sexual abuse allegations—allegations about which Rosenberg provided specific details to these law enforcement authorities.
Federal Indictment for Sexual Abuse of Child
In October 2013, a federal grand jury indicted Preston on two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact with a child.
Preston was put to trial before a jury in August 2015.
The only direct evidence presented against Preston at the trial was the testimony of Timothy Rosenberg.
Preston did not testify at the trial. His defense was based on testimony elicited from law enforcement officials about his denials of having committed the charged offenses.
At the close of the trial, the Government conceded the evidence was insufficient to support one count of the abusive sexual contact with a child and dismissed that charge. The jury found Preston guilty of the two counts of aggravated sexual abuse of a child and not guilty on the remaining abusive sexual contact charge.
In October 2015, he received concurrent 162-month prison terms on the two counts of conviction.
Improper Witness Testimony and Improper Comment on Decision Not to Testify
On appeal to the Ninth Circuit, Preston charged that he had been denied a fair trial through the cumulative testimony of Bussart, Dellacroce, and Preston’s ex-wife Andrea. Preston’s claimed three basic trial errors: 1) improper witness testimony that bolstered Rosenberg’s testimony and vouch for his credibility; 2) the court allowed Preston’s ex-wife to testify about an incest fantasy Preston had in 2003; and 3) prosecutorial misconduct by the prosecution commenting on Preston’s decision not to testify.
The Government’s three bolstering witnesses were: Bussart, Dellacroce and Rosenberg’s older brother—all of whom gave testimony that supported the believability of Rosenberg’s allegations about the sexual abuse. Bussart made such statements three times during her testimony, even expanding on the three statements of believability by offering the “expert” opinion she was not permitted to make as a lay witness that child sexual abuse victims generally tell the truth.
In response to a juror question, Rosenberg’s older brother, Barry, said that he believed his brother’s allegations of sexual abuse.
Agent Dellacroce testified that he told Preston during their pretrial interrogation that the agent did not believe Preston when he said he did not abuse Rosenberg
These obvious bolstering statements were enhanced by the Government calling Preston’s ex-wife as a witness who testified that in 2003 she caught Preston masturbating to a computer image of his 8-year-old stepson clad in his underwear and socks.
Prejudicial Impact Far Exceeded Probative Value
The appeals court found this to be “other crimes” evidence prohibited by Fed. R. Evid. 404(a)(1).
The court noted in particular that this alleged other crime occurred some five years after the charged Rosenberg offenses. The court said the “visceral impact” of this testimony “far exceed[ed] its probative value.”
With respect to the prosecutorial misconduct issue, the law is unequivocally clear that the government may not make a comment “manifestly intended to call attention to defendant’s failure to testify, or is of such a character that the jury would normally and necessarily take it to be a comment on defendant’s failure to testify.”
In this instance, the Government during its closing argument told the jury that Rosenberg “was sexually abused. He told you [that] under oath on the stand. There’s no evidence, there’s no testimony in this case that contradicts Tim Rosenberg’s testimony.”
The court said while the Government did not mention Preston by name, the above comment “was impermissible under [controlling law] because it directed the jury’s attention to a lack of testimony contradicting Rosenberg. The only person who could have provided testimony to contradict Rosenberg’s version of the events was Preston, since the only other two persons present in the home at the time the abuse allegedly occurred—Barry Rosenberg and Andrea Preston—testified they never suspected anything.”
Prosecutors Bolster Sexual Assault Involving Children
The Preston case, like the Soloway case, is typical of many child sexual abuse cases: a he said/he said situation. Rosenberg waited fourteen years before telling anyone about the abuse—and chose to do so only after developing a substance abuse problem and having run-ins with law enforcement.
The Government knew its case was weak.
Rosenberg had a history of lying as conceded by Bussart. To get around this problem, the Government deliberately used three witnesses to bolster his testimony—all of whom testified as to his believability.
The bolstering, standing alone, may not have been enough to undermine Preston’s conviction.
The Government compounded the improper bolstering testimony with suspect testimony from the ex-wife about an “incest fantasy” Preston had about his stepson.
And, again, these four errors, standing alone, still may not have been enough to undermine Preston’s conviction.
The constitutional straw that broke the proverbial camel’s back was the Government’s deliberate decision to engage in what it knew to be misconduct by commenting on Preston’s decision not to testify.
The Christopher Preston prosecution was horrific. Government prosecutors engaged in one cheating incident after another to bolster its weak he said/he said case.
Florida Prosecutors Commit Misconduct
Earlier this year a Florida state appeals court reversed a child sexual abuse case because of prosecutorial misconduct. The court found it totally unacceptable that prosecutors in these kinds of cases have a “winning at all costs” mindset. The prosecutor in this case referred to the defendant seven times as a “pedophile.”
There is no excuse for this kind of prosecutorial misconduct in child sexual abuse cases. The charge itself inflames a jury enough. Jurors should not be exposed to prosecutors who want nothing more than to stoke those flames. “Winning at all costs” to them is more important than serving the interests as they are sworn to do. It is far past time that elected DAs remove these prosecutors from their ranks, state Bars discipline these rogue lawyers and that legislatures criminalize intentional prosecutorial misconduct.