On July 23, 2007, Jeffery Willett, 41, was charged by the Washington County, Wisconsin District Attorney’s office with sexually abusing his daughter more than 12 years earlier when the girl was three years old.
It was the second time he had been accused of a sex crime with a child. In 2001, he was convicted in Michigan of sexually assaulting an 11-year-old girl and received probation.
The Washington County complaint alleged that between May 1994 and May 1995, Willett and his daughter engaged in mutual oral sex.
In 2007, Willett’s daughter went to the Menominee Falls, Wisconsin police department after her physician diagnosed her with genital herpes. She said that Willett had performed oral sex on her and she performed oral sex on him on multiple occasions when she was three years old.
In November 2009, Willett went on trial. His daughter, by then 15, testified that her father had to be source of the herpes because he was the only person with whom she ever had been in sexual contact. She admitted she was taking birth control pills, but said that was only to regulate her menstrual cycle, not because she was sexually active.
The prosecution presented evidence that Willett’s wife went to a social worker when the girl was six and alleged the girl had been sexually abused by Willett. At the time, Willett and his wife were going through an acrimonious divorce. But the girl refused to talk to police about whether any abuse had occurred.
The doctor who diagnosed the girl with herpes testified that the type of herpes she had, herpes type 1, does not occur spontaneously and had to have been transmitted through oral-genital sex. The doctor also testified that the herpes virus can be dormant for as long as 20 to 40 years.
Willett took the stand in his own defense and denied that he ever had sex with his daughter. He said he did not have herpes and that because his daughter began taking birth control pills as a teenager, she could have been sexually active. Willett said he had never been treated for a sexually transmitted disease and never saw any cold sores or other symptoms of a sexually transmitted disease.
His current wife, Toni, whom he had married in 2005, testified she had never had a sexually transmitted disease and never saw any cold sores or other symptoms.
In closing argument, the prosecution focused on Willett’s credibility and the medical testimony that “the only way” the girl could have gotten herpes was through “mouth to vagina contact.”
On November 29, 2007, a jury found Willett guilty of one count of repeated sexual assault of a child. On February 12, 2008, he was sentenced to 30 years in prison.
A motion for a new trial was filed after Willett took two separate tests for herpes and both were negative.
At the post-conviction hearing, Willett’s trial attorney testified that she reviewed websites about herpes and testing and learned that the blood test for herpes was not terribly accurate and to get a truly accurate test there need to be an open sore to swab, which Willett did not have. She also attempted to contact various doctors, experts, professionals, all of the attorneys in the state public defender's office, but those contacted either responded that they could not answer her questions, or worse, did not respond at all.
She said she did not have Willett tested because the results probably would have been given little weight by a jury and because she feared a false positive test result, which would have damaged Willett’s case significantly.
However, Willett presented an expert who said that the lawyer’s research had yielded incorrect information. The expert said that better tests had been approved in the last couple of years that were more "sensitive" and "specific."
Further, the tests were available at the time of trial, the expert said. The expert informed the court that the herpes tests Jeffery took after trial produced a 99.8% accurate negative result. Further, contrary to trial counsel's conclusion, the expert noted that the herpes test has only a 0.2% chance of a false positive, and the more prevalent error was a false negative.
The motion was denied after the prosecution argued that herpes tests can be inaccurate and can’t always detect the disease.
Willett appealed, arguing that his trial attorney had provided inadequate legal assistance in failing to have Willett tested before trial and for failing to obtain a medical expert to testify on his behalf.
On January 13, 2010, the Wisconsin Court of Appeals overturned the conviction and ordered a new trial.
“(T)the issue here is not whether the attorney failed to fully try the case, the court said. “She did the best she could with what she had. Rather, there was a test out there that was available at the time of trial which could have had great impact on the credibility battle between the prosecutor and the defendant, had it been presented. But, through no one's fault, the jury did not hear this evidence.”
The court said, “We simply do not have confidence that justice has prevailed especially since the State—as part of its strategy—assailed (Willett’s) credibility by pointing out the lack of a test corroborating his assertion of being herpes-free.”
On June 25, 2010, the Washington County District Attorney’s Office dismissed the case.
– Maurice Possley