 Esther Thorne, with her daughter, Shawnda Thorne.
Thorne, then 45 years old, lived with the boy, his mother, and his two other siblings in an apartment in Norfolk, Virginia. After hearing her son’s allegations, the mother called 911 and ordered Thorne out of the apartment. Based on the boy’s statements, Thorne was quickly arrested and charged with taking indecent liberties with a child under 18 by a person in a supervisory position; aggravated sexual battery of a child under 13; and sodomy.
Her trial began on February 11, 2014 in the Circuit Court of the City of Norfolk. There was no physical or forensic evidence. C.W. and his mother both testified. The boy said that Thorne had entered his bedroom and “touched my private parts.” He was vague about the particulars of the alleged sexual abuse, but also said that Thorne had “sucked” on his penis. His mother testified that she had come home around 8 p.m., changed clothes, and then left to run some errands and see her boyfriend. She returned around 3 a.m. and found herself locked out of the apartment. She said she pounded on the door and eventually let herself in through a bedroom window. She said she saw Thorne on the couch, pretending to be asleep. She said her son was wearing only underwear and appeared to have an erect penis.
The mother said that before she could find out what was going on, Thorne started stating loudly that the boy was lying. The mother said she and C.W. went into a bedroom to discuss things. When they returned to the living room, the boy repeated the allegations in front of Thorne. The mother said she went next door to speak with her mother, who was Thorne’s sister, and then called 911.
C.W.’s younger brother did not testify, but the parties stipulated to the facts that he fell asleep in the same bedroom with C.W. on the night of June 14 and that he did not see anything.
Thorne testified and denied harming C.W. She said that after the children had gone to bed, Thorne had socialized on the porch with the boy’s grandmother, who was also her sister, but there had been some sort of incident outside involving another neighbor. When Thorne turned in for the night, she locked the front door for safety.
She said she was awakened by the mother pounding on the door and then yelling at her for locking the door. Thorne said the mother then woke her children in the bedroom, quickly came out, and demanded that Thorne leave. The grandmother’s boyfriend largely corroborated Thorne’s account of the evening and said that the lock on the door had not been working properly for about a month.
The jury convicted Thorne of all three charges on February 12, 2014. She was sentenced to 17 years in prison and fined $50,000.
Thorne appealed her convictions on largely technical grounds. She said the boy’s testimony that she allegedly “sucked on it,” referring to his penis, didn’t prove penetration, as required by law. She also said that C.W. and his siblings were not in her care at the time of the incident, which meant she should not have been convicted on the indecent liberties charge.
Both the Virginia Court of Appeals and Supreme Court of Virginia rejected her appeals.
On May 7, 2019, Thorne filed a petition with the Virginia Court of Appeals for a writ of actual innocence based on a recantation by C.W. The boy wrote his statement in 2015, and Thorne said she received a copy in 2016. It said:
A couple years ago I told everyone that my great aunt Ester Thorne molested me. But I was telling a lie, because I was scared of getting in trouble that night by mom. (because I had peed on myself that night). I also told everyone that she molested me, not only because I was scared of getting in trouble for peeing on myself, but it’s also because she my great aunt Ester Thorne was making me clean up a lot. Because I was the oldest child n [sic] I was mad at her for making me clean up everything. That is why I told my mom my great aunt Ester Thorne molested me, because I only thought that my mom was going to kick her out [of] the house.
Prosecutors moved to dismiss the petition. They argued the evidence was not newly discovered. They also said Thorne had not established that the unsworn statement was true.
The appellate court ordered an evidentiary hearing, which took place in Norfolk circuit court on March 4, 2020. Judge Everett Martin, who presided over Thorne’s trial, also presided over the hearing. Thorne was now represented by Nathan Chapman.
Martin cautioned C.W., now 17 years old, about the penalties for perjury. C.W’s testimony tracked his recantation. C.W. said that he was worried about his mother’s anger if she found out he had wet the bed and that he also wanted Thorne to move out because she often made him do chores. He said he repeated his false allegations during the trial because he didn’t want to get into trouble with the courts and because he didn’t know “what the consequences were going to be.”
Martin also heard testimony from C.W.’s and Thorne’s family.
C.W.’s grandmother testified that the boy told her a month after Thorne’s arrest that nothing had happened. The grandmother said she told no one because she felt torn between various family members. She did not attend the trial because she was in the hospital.
Another female relative testified that she had heard C.W. tell his siblings the day after the incident that “nothing ever happened” and that he lied to avoid punishment for wetting the bed. The relative said she told C.W.’s mother about this, but the mother didn’t believe her. The relative said she also told the boy’s therapist, who also said she didn’t believe the relative’s account.
The relative said an employee with the Office of the Norfolk Commonwealth’s Attorney told her that two of C.W.’s siblings had given different accounts of the night when the alleged abuse occurred. The relative said the representative from the prosecutor’s office told her the information would be given to Thorne’s attorney, Armon Pollack. Pollack testified that he received information from prosecutors related to a “discrepancy about who was in the room at the time of the alleged event.”
Martin issued his findings of fact on April 6, 2020. He said the central question was whether Pollack should have suspected a recantation and tried to question C.W.’s mother and his adult relatives more closely. He wrote, “In hindsight the answer is ‘yes,’ but there is no evidence the Commonwealth’s Attorneys’ Office, which was in contact with C.W. and some members of his family, knew of, suspected, or investigated a possible recantation.” He also noted that C.W.’s relative did not mention the recantation to prosecutors when she had the chance and that Thorne and her daughter, Shawnda Thorne, did not know of the recantation until after the trial.
Martin said that although the reasons for C.W.’s false allegation seem trivial to an adult, “a ten-year-old child would not understand the effect of the claim and would fear getting in trouble if he told the truth.”
These findings were then referred to the Virginia Court of Appeals, which granted Thorne a writ of innocence on June 1, 2020, vacating her conviction and ordering her release her from prison. The three-judge panel said that C.W.’s recantation was credible and that Thorne’s attorney was not at fault for failing to discover this new evidence of innocence prior to trial. “The evidence is clear that neither Thorne’s attorneys nor she had any reason to suspect that C.W. had told anyone that he was lying until after her sentencing order was final,” the court wrote.
Prosecutors didn’t appeal the court’s ruling, and it became final on July 7, 2020 when Thorne’s record in this case was expunged.
The Virginia General Assembly awarded Esther Thorne $321,587 in state compensation on April 7, 2021.
– Ken Otterbourg
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