In the fall of 1999, Michael Washburn, who was living in Iowa with his wife and their three-year-old son, was charged with sexually assaulting a three-year-old girl six years earlier in his parents’ home in Norton, Massachusetts.
The girl, A.C., was by then 9 years old and living in Florida. The charges were the result of an investigation begun in October of 1997, when, at the age of 7, she tested positive for chlamydia, a sexually transmitted disease. When her doctor told her that she must have gotten the disease through sexual activity, she said she had been molested.
Florida authorities began an investigation. Her parents were required to undergo testing for sexually transmitted diseases, and a police officer questioned A.C. The officer conducted an extremely leading and suggestive interrogation, and ultimately A.C. accused a neighborhood youth named Jason, who she said carried a gun, of having touched her genitals. She said it was the only time she had ever been molested. She later said the boy who had molested her actually was named Joshua.
Later, during an interview with a sexual abuse intervention counselor, A.C. changed her account. She then said that when she was three years old, Washburn, then 20 years old, raped her. She said the assault occurred when she and her mother were living with Washburn and his parents, and that he was the only person who had ever touched her private parts.
Washburn was charged with one count of rape and abuse of a child under the age of 16, and one count of indecent assault and battery of a child. He went to trial in Bristol County Superior Court in October 2002 and chose to have his case decided by a judge without a jury. The trial lasted one day.
The prosecution introduced records that showed that A.C.’s parents tested negative for gonorrhea, although A.C. had tested positive for a different sexually transmitted disease, chlamydia. However, the medical records for both parents incorrectly reported that A.C. had tested positive for gonorrhea. The medical records also showed that on November 1, 1997, A.C. had been tested again for chlamydia and this time, the results were negative.
A.C.’s mother testified that A.C. began having difficulty urinating when she was about three years old. Her urinary problems worsened after they moved into the Washburn home. She said that A.C. complained of burning and irritation, and had difficulty sleeping. When they moved to Florida, A.C. continued to have urinary infections, which led to the test in October 1997 that was positive for chlamydia.
Under questioning by the prosecution, A.C., by then 12 years old, testified that she had no medical problems prior to the incident with Washburn. She said that he had put his penis in her vagina and that they were “face to face.” She said her medical issues began after that, and that he threatened to kill her if she told anyone.
On cross-examination, A.C. admitted that she had lied to the police officer who originally questioned her in Florida when she said that a youth named Jason was responsible. A.C. admitted that the officer had promised her presents if she named the person who touched her. A.C. also said that on the day she was questioned, her father was not home and the officer threatened that she would never see her father again unless she named the person.
She insisted, however, that she told the truth in later interviews when she said Washburn raped her. She said that she had “the infection because he did it” and that the doctor told her that sexual activity was the cause.
Washburn testified and denied assaulting A.C. or touching her improperly in any way. He said that during the time period that A.C. said the assault happened, he was not living with his parents—a fact confirmed by several other witnesses.
During final arguments, the prosecution conceded that the original police interrogation of A.C. was “one of the worst examples…of an interview of a child—replete with threats, promises and threats that she will never see her father.” However, the prosecution insisted that the later interview with a sex abuse intervention worker, during which A.C. named Washburn, was properly conducted.
Washburn’s defense attorney focused on A.C.’s claim that she and Washburn were “face to face” when she was raped, despite the obvious difference in height between a three-year-old girl and a 20-year-old man.
On October 2, 2002, Judge Susan Garsh convicted Washburn of rape and abuse of a child under the age of 16, and acquitted him of indecent assault and battery of a child.
Prior to sentencing, Washburn retained a new attorney who filed a motion for a new trial based on a medical report that Washburn’s trial attorney had failed to present as evidence.
The motion said that in April of 2000, while Washburn was awaiting trial, Dr. Robert Greenberg conducted a test of Washburn’s blood. The test measured the presence or absence of a particular protein in the blood to determine whether Washburn had previously been exposed to chlamydia. The test was negative.
The motion said that although Washburn’s trial attorney was aware of the negative result and had provided the test report to the prosecution before trial, he never sought to present it at the trial.
The motion also said that Dr. Greenberg, had he ever been consulted by Washburn’s trial attorney, would have said “to a high degree of confidence, that [Washburn] had never been exposed” to the chlamydia bacteria, that he was never infected with it, and that he could not have passed it to A.C.
The motion also said that the initial screening test performed on A.C.—which was positive for chlamydia—has a high rate of false positive results. The second test, which was negative, suggested that the first test produced an erroneous result.
On December 16, 2002, Judge Garsh sentenced Washburn to four years in prison. At the same time, the judge continued the motion for a new trial. On March 10, 2003, Judge Garsh granted the motion for a new trial and vacated Washburn’s conviction.
The judge ruled that Washburn’s trial attorney had provided an inadequate legal defense. The judge said the conduct of Washburn’s trial attorney “with respect to the medical issues in the case reflected serious incompetency, inefficiency and in attention…The result of the trial might have been substantially different had the defendant’s antibody test results been introduced and had a medical expert testified.”
On October 3, 2003, the prosecution dismissed the charge.
Washburn filed a lawsuit seeking compensation from the state of Massachusetts. The lawsuit was settled for $160,000.
– Maurice Possley
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