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Bradley Holbrook

Other Child Sex Abuse Exonerations with Official Misconduct
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On June 10, 1999, 32-year-old Bradley Holbrook, a California attorney, went to McMinnville, Oregon, to spend time with the family of his sister-in-law, Elizabeth Carpenter. At the time, Carpenter’s 7-year-old daughter, Chelsea, was dying from leukemia.

Carpenter had invited Holbrook because he and Chelsea were close and the visit would be Holbrook’s last chance to spend time with her. On June 14, Carpenter left the home to run an errand, leaving Holbrook, Chelsea, Chelsea’s sister, and a 10-year-old friend (L.F.). Before leaving, Carpenter put out some bean dip as a snack. When the dip was finished, Holbrook and L.F. went to the kitchen to get some more dip.

When L.F. went home, she told her mother that Holbrook had touched her inappropriately while they were in the kitchen. Police were called and L.F. said that Holbrook touched her buttocks and her vagina by inserting his hand into her pants while they were at the refrigerator getting more dip.

Three days later, L.F. went to Juliette’s House, a child abuse assessment center. She gave a generally consistent account—that Holbrook had patted her buttocks and then inserted his hand into her pants and touched her buttocks and vagina. Dr. John Sandberg performed a physical examination that revealed L.F. had a damaged hymen, which suggested prior penetration. Therapist Michelle Warner and Sandberg concluded that L.F. was a victim of child sexual abuse based solely on the girl’s statements.

L.F. subsequently came back for a follow-up interview and gave a different account. She said that Holbrook did not put his hand down her pants, but that he touched her vagina on the outside of her pants. She said she could not really feel it and at first she thought it was accidental. She did not mention being touched on her buttocks.

In July 1999, a Yamhill County grand jury indicted Holbrook on two counts of sexual abuse of a child for touching L.F. on the buttocks and the vagina. On August 24, 1999, Chelsea succumbed to her illness.

Prior to trial, Holbrook rejected a prosecution offer to plea guilty to a misdemeanor charge of attempted sex abuse in return for probation as well being listed as a registered sex offender for life.

In March 2001, Holbrook went to trial in Yamhill County Circuit Court. Prosecutor Carroll Tichenor told the jury that Holbrook had touched L.F. at the refrigerator and at the microwave—a third version of events. Tichenor told the jury that L.F.’s statement about an accidental touch only referred to what happened at the refrigerator.

Questioned by Tichenor, L.F., who by then was 11 years old, said Holbrook “grabbed my sides, and then you kind of reminded me like he kind of touched my vagina with his hand from the outside of my shorts, but I kind of remember that, but not really.”

During cross-examination by Holbrook’s defense lawyer, Kent Gubrud, L.F. admitted that she did not tell police or the therapist and physician at the Juliette Center that Holbrook touched her twice. She said she didn’t remember why she did not mention that, but said she had told her mother.

L.F.’s mother testified that L.F. told her about being touched at the microwave and the refrigerator, though she had not told police or any other official about it.

Dr. Sandberg testified about his examination of L.F. Warner, the therapist, testified about her initial interview of L.F. Warner also testified about her subsequent interview of L.F. six weeks later, which was video recorded. During that interview, L.F. said Holbrook “probably” brushed against her accidentally.

L.F. also said, “When I was at the fridge, you know, and he touched my sides, after that he didn’t put his hand down my pants, but slightly went like this. And he touched my vagina, kind of, but I still had my pants on.”

Warner then asked, “Okay, so that was, like, touching your vagina on top of your pants?”

“Yeah, but I couldn’t, like, feel it,” L.F. said. “I thought, well, he probably didn’t mean to.”

Despite those statements, Warner told the jury that she had enough information to conclude that L.F. had been sexually abused.

The defense called an expert on child interviewing techniques who testified that the interviews of L.F. by Dr. Sandberg and Warner did not comply with standards for such interviews that had been put in place in 1998.

The expert noted that police reports and records from Juliette’s House were only summaries of L.F.’s statements. The standards recommended that the questions and answers be recorded to capture exactly what was said. The expert noted that the only recorded interview came six weeks after L.F. was first interviewed.

The expert also testified that L.F.’s changing account cast doubt on the claim that she was sexually abused.

The defense also presented evidence that L.F. had been physically abused by her father and stepfather. The expert testified that victims of such abuse were known to blame someone else for the abuse.

Holbrook testified and denied any improper touching of L.F.

The trial ended in a mistrial when the jury was unable to reach a verdict.

Subsequently, Holbrook filed a complaint with the Oregon State Bar accusing Tichenor of improperly communicating with jurors from the first trial. The complaint said that Tichenor had interviewed jurors after the mistrial and asked them if they would have convicted Holbrook if they knew that he had a sexual relationship with a 14-year-old girl and affairs with women while he was married. One of the jurors told Tichenor such evidence would have swayed them to convict Holbrook. Four jurors filed sworn statements expressing concern about Tichenor’s conduct. The bar then commenced an investigation.

In the meantime, Tichenor went back to the grand jury and obtained a new indictment charging Holbrook with three counts of sexual abuse for touching the girl once at the refrigerator and twice—on her vagina and buttocks—at the microwave.

In March 2002, Holbrook went to trial a second time before a different judge. The trial unfolded similarly to the testimony in the first trial until the defense called two character witnesses on Holbrook’s behalf. Due to scheduling issues, the witnesses were called out of order—during the middle of the prosecution’s presentation of its case.

While the judge in the first trial had barred character witness testimony, the judge in the second trial granted the defense request to present such testimony.

When prosecutor Tichenor cross-examined these witnesses, he asked if they were aware that Holbrook once had a secret sexual relationship with a 14-year-old girl, that he had adulterous relationships with other women while he was married, and that he came home at 3 or 4 in the morning with hickeys on his stomach.

Defense attorney Gubrud objected, accusing Tichenor of “making a statement of fact when there’s no evidence to support it. He can ask…”

“I know what he can ask,” the judgesaid, interrupting Gubrud. Then, addressing Tichenor, the judge said, “If you have a basis for asking them, fine.”

Tichenor replied, “I have a basis.”

“All right,” the judge said. “Then go ahead and ask them.”

The witnesses said they were not aware of such information.

The defense called Holbrook’s ex-wife and asked her about all of the topics of Tichenor’s cross-examination—the hickeys, and the suspicion that Holbrook was engaged in a relationship with a 14-year-old girl and had affairs while they were married. She denied having such suspicions or ever making any statements about those topics to Carpenter.

The prosecution was then allowed to call Carpenter during the middle of the defense evidence. During questioning by Tichenor, Carpenter spoke of a conversation she had with Holbrook's ex-wife in 1995. “She was quite upset,” Carpenter testified. “Their marriage wasn’t doing very well, and she had said he was away a lot on the weekends and at night getting home late. And particularly, one weekend he had funny marks on his stomach that he said were allergic reaction, but she believed they were hickeys.”

Carpenter also said that Holbrook's ex-wife told her that Holbrook had a post office box that he would not give her access to and that she suspected he was getting letters from a young girl.

Holbrook again testified and denied improperly touching L.F. He also denied having a relationship with a 14-year-old or having any affairs.

During closing argument, the prosecutor emphasized how the character witnesses said they were unaware of Holbrook’s conduct relating to the 14-year-old girl and his affairs.

On March 18, 2002, the jury acquitted Holbrook of two of the three counts and convicted him—by a vote of 11 to 1—of one count of sexual abuse. He was sentenced to six years and three months in prison.

Defense attorney Gubrud filed a motion for a new trial claiming that Tichenor “engaged in improper cross-examination of defense witnesses concerning the character of (Holbrook) for sexual propriety.” The judge denied the motion, noting that Gubrud had failed to ask for a hearing outside the presence of the jury and that Gubrud’s objection to the cross-examination “did not adequately apprise the court” that the objection was meant to challenge all of Tichenor’s questions. In any event, the judge noted the evidence showed Tichenor had a good faith basis to ask the questions.

In 2003, Tichenor won election to the bench as a Yamhill County Circuit Court judge.

In December 2004, the Oregon Court of Appeals upheld Holbrook’s conviction without issuing an opinion. That same year, the state bar reprimanded Tichenor for engaging in improper cross-examination during Holbrook’s trial.

In 2005, after the Oregon Supreme Court had declined to hear a further appeal, Holbrook, acting as his own lawyer, filed a petition for post-conviction relief.

The petition claimed that Gubrud had provided an inadequate legal defense by failing to prevent the prosecution from engaging in improper character impeachment. Holbrook sought to introduce testimony from the state bar investigation of Tichenor.

In 2006, the Oregon Supreme Court overturned the state bar’s reprimand of Tichenor, ruling that the state bar had brought the action under the wrong rule, but not quarrelling with the Disciplinary Board’s factual findings regarding Tichenor’s conduct.

In May 2007, after a post-conviction trial during which Holbrook represented himself, his petition was denied. In part, the judge held that evidence Holbrook tried to introduce from the state bar investigation into Tichenor’s conduct was irrelevant to the post-conviction proceedings, although the judge did allow evidence from that proceeding that the state had filed against Holbrook. In June 2008, Holbrook was released to post-prison supervision after serving his entire mandatory minimum sentence of 6 years and 3 months. Allen Scott, one of the four jurors from Holbrook’s first trial who had complained about Tichenor’s actions, had remained in touch with Holbrook during his incarceration. Upon Holbrook’s release, Scott and his wife took Holbrook into their home while he attempted to rebuild his life, working as a painter and mover and ultimately establishing a business as a paralegal. His law license had been suspended during his appeals and in 2009, Holbrook was disbarred by California State Bar.

That same year, Matthew McHenry began representing Holbrook and challenged the denial of the post-conviction petition. In January 2013, the Oregon Court of Appeals vacated the post-conviction court’s ruling and remanded the case back for a new hearing on the petition. The court held that evidence Holbrook offered from the state bar proceedings should be allowed as evidence.

At the second post-conviction hearing, in December 2013, McHenry presented evidence that prior to Holbrook’s second trial, Tichenor had sent a letter to the state bar as part of the investigation of Holbrook’s complaint that the prosecutor had engaged in misconduct.

In the letter, Tichenor said that his proposed cross-examination questions for the character witnesses were based on assertions made to him by Holbrook’s sister-in-law, Elizabeth Carpenter, who was the sister of Holbrook’s ex-wife. Tichenor said that Carpenter told him that the ex-wife was the source of her information and that the information was “rumors” and “an unconfirmed suspicion.”

Tichenor also told the bar that he tried to substantiate the information by sending an investigator to Holbrook’s community in California, but he had been unable to find any evidence to support the information. Tichenor did not discuss the information with Holbrook’s ex-wife.

The petition claimed that Holbrook’s trial defense attorney had provided an inadequate legal defense because he allowed the prosecution to tell the judge that he did have a factual basis for the questions he asked, even though he had admitted to the state bar that there was no factual basis at all.

During the hearing, Laird Kirkpatrick, a law professor at the George Washington University Law School, testified that Tichenor lacked a good faith basis for the questions because his information was insufficiently reliable. Kirkpatrick testified that references to prior misconduct by a defendant make juries much more likely to convict.

In January 2014, Holbrook’s petition was again denied by the post-conviction trial court. The court agreed that Gubrud had failed to provide an adequate legal defense. The court said that Gubrud, “in the exercise of reasonable professional skill and judgment, should have taken steps to attempt to exclude this information before trial and should have objected to the prosecutor’s cross-examination questions because it was clear the prosecutor’s source had no firsthand knowledge of the reported behavior.”

But in its final analysis, the court also held that Gubrud’s failures did not cause Holbrook to have an unfair trial—Holbrook would have been convicted anyway. The judge noted that the jury had been instructed that questions by the prosecution were not to be considered as evidence and that Carpenter had testified about how she came to obtain the information.

McHenry appealed and in December 2017, the Oregon Court of Appeals vacated Holbrook’s conviction and ordered a new trial. The court held that Tichenor did not have a basis to ask the questions and that the jury instructions were inadequate to prevent the jury from being influenced by the cross-examination. The appeals court also noted that “if trial counsel had performed adequately by raising the issue before or during trial and the trial court had prohibited the improper cross-examination, the jury would not have heard Carpenter’s testimony.”

On May 31, 2018, a prosecution motion to dismiss the case was granted.

– Maurice Possley

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Posting Date: 6/28/2018
State:Oregon
County:Yamhill
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:1999
Convicted:2002
Exonerated:2018
Sentence:6 years and 3 months
Race:White
Sex:Male
Age at the date of crime:32
Contributing Factors:Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No