In October 2005, a mother in Oak Park, Michigan, reported that her 5-year-old son told her a teacher had done “gay stuff” to him. The next day, the boy identified James Perry, a kindergarten teacher, as the man who assaulted him.
The boy was taken to the hospital, where doctors found no injuries, but reported the allegations to the police. Perry was suspended with pay.
Two weeks later, the boy was interviewed by a counselor trained to talk to sexual assault victims. During the interview, the boy claimed that Perry fondled him and tried to have oral sex with him, and that Perry had pulled a second boy from the lunch line and had oral sex with him – an account that differed significantly from what he had told his mother. The second boy was also interviewed, but denied that Perry molested him. The police concluded that Perry had pulled the two children from a lunch line and assaulted them in an empty special education classroom.
Initially, the chief of warrants in the prosecutor’s office refused to issue a warrant. In February 2006, however, the chief was fired and replaced, and two days later the case was reopened. By then, both boys had been questioned together by their mothers, and the second boy had changed his story and told his mother that Perry had performed oral sex on him. Prosecutors charged Perry with two counts each of first-and-second-degree criminal sexual conduct.
At trial, Perry insisted he had never had contact with the two boys, who were not in his kindergarten class. In September 2006, a jury convicted Perry of the assaults.
Following Perry’s conviction, but before his sentencing, the Detroit Free Press discovered evidence that had not been presented at trial. Investigators had not questioned the teacher and the teacher’s aides in the special education classroom where the assaults allegedly took place. Those staff members said that the room was always occupied, and that an assault could not have taken place there without being witnessed.
At trial, a police detective told jurors that he recognized Perry from another case, but the jury was not told that Perry was cleared in that case, and in fact had never been charged with anything. In addition, although counselors had advised them not to do so, the boys’ mothers had repeatedly questioned them about the assaults, on one occasion together. Such repeated questioning can often taint the accounts of children.
Finally, Perry’s electronic tether was visible to the jury during the trial, and the prosecutor committed misconduct when he publicly commented on Perry’s refusal to take a polygraph. An Oakland County Circuit Court judge agreed to delay Perry’s sentencing while she reviewed the defense request for a new trial. In February 2007, the judge vacated Perry’s conviction and released him on bond.
Prosecutors retried Perry in March 2008. This time, the special education teacher and teacher’s aides testified that the classroom could not have been empty. The retrial ended in a hung jury, with 11 of 12 jurors voting to acquit Perry and a mistrial was declared.
In August 2008, a new prosecutor requested that the judge dismiss the charges, and the judge granted the request. The original prosecutor was later charged with professional misconduct for his handling of the case.
- Stephanie Denzel