| In late August 2018, a 13-year-old girl, known in court records as “C”, told a neighbor that Hussein Hassan had kissed her and touched her breast.
Hassan, who was 65 years old, lived on one side of a duplex in Pilot Rock, Oregon. C, her father, and stepmother lived on the other.
After telling the neighbor, C told her grandmother, who called the police. An officer interviewed C, who said that she and Hassan, who was known as an amateur palm reader, were in their shared backyard when Hassan said he wanted to see C’s painted nails. He began to give her a palm reading, C said, but then kissed her on the lips and touched her breast. The girl later repeated this account to an investigator at a child-abuse intervention center in nearby Pendleton.
Hassan was arrested on August 29, 2018, and charged with two counts of first-degree sexual abuse. During an interview at the police station, he denied kissing or touching C. The questions continued while Hassan was taken to the Umatilla County Jail in Pendleton. Officer Daniel Badal said: “Just be honest about it though. You know you want to just say the truth. It makes you look better by being honest.”
Hassan responded: “I didn’t kiss her sexually.”
Badal continued: “Okay then how did you kiss her? Was it like a goodbye or hello like we do in Middle Eastern (sic)?”
Hassan’s response was garbled.
A court would later write: “Some of the
statements he made at that point could be interpreted as incriminating but were far from unambiguous admissions of wrongdoing, in part because of a language barrier and in part because of the way in which the interrogation was conducted.”
Hassan’s trial in Umatilla County Circuit Court began on January 17, 2019. It was delayed several times while the court secured an interpreter who spoke Hassan’s Egyptian dialect of Arabic.
C testified that she and Hassan were in the backyard and he “was looking at my nail polish, and then he flipped my hand over and started reading my palm, and then he kissed me on the right side of my mouth, not necessarily my lips, and then he grabbed my right breast.”
She testified that after the incident she moved back to Pendleton, where she had lived most of her life because “we didn’t feel safe at home anymore.”
The forensic evaluator at the children’s center testified about her interview with C. During cross-examination, Hassan’s attorney asked the evaluator what C said about why at the time of the alleged assault she was living with her father and stepmother, rather than her customary arrangement of living with her mother and stepfather in Pendleton.
The prosecutor objected to the question as irrelevant, and Hassan’s attorney said, “Goes to bias.”
Outside the presence of the jury, the defense attorney continued his questioning of the evaluator, asking her whether C had said the reason she was living in Pilot Rock was because there was an allegation of theft in Pendleton. The evaluator said the girl had said this.
The defense attorney told Judge Jon Lieuallen that testimony about the theft was relevant. “What that goes to is if she got, had gotten in trouble because of a theft, and was being moved to a different location, one way for a child to get out of trouble is to make a claim of sexual abuse and then she gets the attention of all the authorities, and the theft becomes much, much smaller.”
Judge Lieuallen asked the evaluator to elaborate on C’s statements. She said: “During the rapport building process as an interviewer I often ask about family, friends and things like that, and [C] had told me that she was not currently living with her mom because she had stolen—stolen something, and clearly it—it upset her, which I did not want to happen, so I quickly tried to transition out of that into the narrative recall part of the interview, so I didn’t ask her any further questions.”
The prosecutor acknowledged that C’s mother had made her move in with her father and stepmother about a month before the incident with Hassan, but argued that “just because two events are co-occurring doesn’t mean that they’re connected.”
The testimony outside the presence of the jury continued. C’s mother then testified about the incident with the theft, which was of a phone. She said C had used the phone in inappropriate ways and didn’t want to accept her punishment. The mother said she and C’s father then discussed the situation and agreed that C would move to Pilot Rock. The mother said she thought the matter had been resolved and that C was happy living with her father and stepmother.
Hassan’s attorney called C to testify. He asked her whether she had been upset about being grounded. She said yes. He asked her whether the custody change meant different rules. C answered: “No. My dad’s more strict than my mom. That’s the only other thing. That’s the only thing.”
Judge Lieuallen then sustained the state’s objection to this line of questioning about events prior to the abuse allegation. He said: “There may have been lots of choppy stuff earlier some but [it had] all been worked out and smoothed out. She’s under no further restrictions. I guess it doesn’t appear [to] me there was anything to avoid at that time, and therefore no reason to make up, fabricate a story, anything of that nature.”
The jury was brought back into the courtroom, and the forensic evaluator finished her testimony.
During closing arguments, the prosecutor said C had nothing to gain by bringing a false allegation against Hassan. “What bias, motive, or interest was there?” he asked. “None except for her to be able to tell you all what the defendant did to her.”
At the time, Oregon allowed non-unanimous jury verdicts. On January 18, 2019, the jury voted 10-2 to convict Hassan of first-degree sexual abuse (touching C’s breast) and unanimously of first-degree sexual abuse (kissing C). He later received a sentence of six years and three months in prison.
Hassan appealed his conviction, arguing that Judge Lieuallen erred in barring testimony about the incident that led to C going to live with her father and stepmother.
On October 27, 2021, the Oregon Court of Appeals granted Hassan a new trial. During the time between Hassan’s appeal and the court’s decision, the U.S. Supreme Court had struck down the use of non-unanimous guilty verdicts in Louisiana and Oregon, the two states that allowed them. The state conceded that the non-unanimous conviction needed to be reversed, and the appellate court said Hassan should have been allowed to present evidence offering another theory about the reason for C’s allegation. Judge Lieuallen’s view of the relevance of this evidence, although reasonable, didn’t mean that other views shouldn’t be explored, the court said.
“This case involved a credibility contest in which there was no physical evidence of abuse and no eyewitnesses who testified other than C,” the court said. “The evidence regarding the phone incident and subsequent move would have been defendant’s only evidence of C’s motive to fabricate the allegations, and he was denied the opportunity to advance that theory and to meet the prosecutor’s closing argument that C had no bias, motive, or interest in falsely accusing defendant of abuse.”
Hassan was moved from state prison to the Umatilla County Jail, then released on bond on May 11, 2022. Judge Daniel Hill granted a motion to dismiss the charges on October 20, 2022.
After his exoneration, Hassan filed a claim for state compensation.
– Ken Otterbourg
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