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Michael Scott Molen

Other Idaho Exonerations
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In September 2005, 45-year-old Michael Scott Molen was charged with lewd conduct with a minor in Garden Valley, Idaho, after his nine-year-old step-granddaughter accused him of raping her on multiple occasions beginning when she was eight years old.

Molen denied the allegations. He contended that the girl, identified as S.Z., fabricated the claims at the urging of her mother, T.D. T.D., Molen said, became angry after Molen and his wife, Connie (who was T.D.’s mother), began talking about adopting S.Z. because her home environment was not suitable for a young child.

Prior to Molen’s trial, his defense attorney, Richard Christian, filed a motion seeking an advance ruling allowing the defense to call family members to testify that S.Z. had been exposed to “graphic sexual conduct” by her mother. The witnesses, according to the motion, would testify that T.D. exposed S.Z. to “a constant, graphic, sexually-charged lifestyle for her entire life, including openly having sex with multiple partners with (S.Z.) in the home, openly discussing and showing sex toys and pornography in front of (S.Z.) and openly disrobing in front of other family members in the presence of (S.Z.)”

The motion contended that S.Z.’s claims were the product of being exposed to her mother’s lifestyle—not because Molen had actually raped her.

The prosecution contended that how an eight-year-old knew about sex was “completely irrelevant” because children learn about sex at different ages and from difference sources. The trial judge ruled the testimony would not be admitted.

In January 2007, the prosecution offered Molen a deal—he could plead guilty to a lesser offense of injury to a child, which would not require registration as a sex offender, and spend one year in the Boise County Jail. Christian told Molen, “I must urge you to consider it because it eliminates the potential risk of life in prison if you are convicted.”

Molen declined the offer, saying he would not plead guilty to a crime he did not commit.

Not long after, on the day Molen was scheduled to go to trial in Boise County Circuit Court in Idaho City, Christian was so drunk that his secretary drove him to the courthouse. When the car pulled up to the courthouse, Christian opened the passenger door and fell into a snow bank.

The trial judge was informed and sent Christian to the Sheriff’s Office for a blood alcohol test. When his blood alcohol content registered .344—more than four times the legal limit—the trial was postponed. Christian admitted himself into in-patient treatment and offered to withdraw and return his fees.

However, Christian had no money available to return the fees. Molen and his wife, meanwhile, had liquidated their assets to pay for expert witnesses and to fly them to the trial that was postponed due to Christian’s intoxication. Molen had no money to pay a new attorney to start all over, particularly because the experts had to be rebooked to come back at a future date.

Christian left in-patient treatment in March 2007. To convince Molen that he was able to handle the trial, Christian invited Molen and Connie to move in with him two weeks before the trial was to begin on June 18, 2007. During those two weeks, although they took him to Alcoholics Anonymous meetings, they found empty bourbon and vodka bottles stashed in the bathroom and kitchen cupboards. During this time, Christian did not meet with experts who had been asked to testify and did no other trial preparation.

At the trial, S.Z. testified that Molen had raped her on multiple occasions in 2004 and 2005 when she stayed with him and her grandmother, Connie.

S.Z.’s mother, T.D., testified that she had not spoken to S.Z. “in detail about sex and how she might talk about that if she were to talk to authorities in this case.”

Based on that testimony, Christian again sought to introduce the evidence of the child’s exposure to the mother’s sexual behavior. The judge denied the motion, ruling that the evidence was unfairly prejudicial.

The investigating police officer testified that after S.Z.’s allegations came to light, the officer contacted Molen’s wife, Connie, to get Molen’s version of events. The officer said Connie suggested a time to call, but when the call was made, there was no answer. Several subsequent attempts to call went unanswered, the officer said.

Alisa Ortega, a pediatric nurse practitioner employed by St. Luke’s Regional Medical Center Children At Risk Services unit (CARES), testified that she conducted a physical examination, and found evidence of healed tears that suggested blunt force trauma resulting from sexual assault. During cross-examination, Ortega revealed for the first time that a colposcopic genital examination had been performed and that photographs of the girl’s genitals existed.

The photographs were then turned over to the defense. Christian did not request a recess or continuance to allow the defense expert, Dr. Edward Friedlander, time to study them in depth. Friedlander testified that he did not see the photographs until about 90 minutes before he testified. He conceded that although consulting on child sex assault cases was not a major part of his medical practice, he did not believe the photographs supported a finding of sexual assault. He said he had not been interviewed nor done any preparation to testify prior to walking into the courtroom that day.

Dr. Phil Esplin, a forensic psychologist, testified that the social worker’s interviews with S.Z. were overly suggestive and violated established protocols for child victim interviews. The social worker, Esplin testified, had used her own words to describe what allegedly had occurred, and S.Z. adopted those words to describe what happened.

Molen testified and denied raping S.Z. Molen told the jury that he had waited at home for more than two weeks for a call, but none came. “I still, to this day, have not been approached by anyone from law enforcement,” Molen declared.

During cross-examination, the prosecutor suggested that Molen’s account was untrue, and that he avoided talking to police so that he could hear what the witnesses said in court in order to tailor his testimony.

“If you wanted to talk to the police so bad, why didn’t you call them?” the prosecutor asked.

“I was scared,” Molen testified.

“You were scared? Okay. But you know how to call the police, right?” the prosecutor said. “You could have easily have called up (the officer) or any other officer asking to tell your side of the story, couldn’t you?”

“It was not my job,” Molen said.

“But you didn’t,” the prosecutor continued. “You waited until you got your chance here to listen to all the witnesses and then tell your story, correct?”

“Yes,” Molen replied.

On June 22, 2007, the jury convicted Molen of one count of lewd conduct with a minor. He was sentenced to 20 years in prison.

In January 2010, the Court of Appeals of Idaho affirmed his conviction and sentence. The court held that the prosecutor’s cross-examination was an improper comment on his constitutional right to remain silent. The court ruled, however, that the violation was harmless and did not result in Molen receiving an unfair trial.

On July 11, 2011, during a visit with Molen in prison, Connie suffered a brain aneurism and died. She had steadfastly supported Molen and had created a website to draw attention to what she believed was a wrongful conviction.

In 2013, Molen filed a petition for post-conviction relief. He had retained a new attorney, Elisa Massoth. Massoth had consulted with Cari Caruso, a forensic sexual assault nurse examiner, who reviewed the evidence. Caruso concluded that the prosecution’s sexual assault examiner witness, Ortega, made numerous errors—primarily by identifying normal growth changes in the girl’s genitals as evidence of healed tears caused by sexual assault. Ortega’s findings, Caruso reported, were “inexcusable.”

In December 2013, the prosecution and Massoth filed a statement of agreed reasons the convictions should be vacated. However, the judge demanded that a hearing be held, and set the hearing for April 28 and 29, 2014.

On April 7, 2014, the defense and prosecution learned that there had been an additional interview of S.Z. done at the hospital, and that it contained numerous statements from S.Z. that were inconsistent with her trial testimony. Massoth asserted that the statements should have been disclosed prior to trial.

On April 23, 2014, Massoth and the prosecution filed another agreed statement of facts that concluded that Molen was entitled to a new trial and dismissal of the case. On June 17, 2014, the judge vacated the conviction and ordered Molen released from custody. The judge ruled that Christian—Molen’s trial defense attorney—had provided an inadequate legal defense by failing to discover the existence of the colposcopic examination photograms, failing to retain an expert in pediatric child sex abuse, and failing to request a continuance or mistrial when the colposcopic photographs were disclosed.

On July 10, 2014, the prosecution dismissed the case.

Molen subsequently filed a legal malpractice lawsuit against Christian that was settled for an undisclosed amount. Christian subsequently left the practice of law, became sober, and worked as an administrator in a drug court in Idaho.

– Maurice Possley

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Posting Date: 9/22/2018
State:Idaho
County:Boise
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:2005
Convicted:2007
Exonerated:2014
Sentence:20 years
Race:White
Sex:Male
Age at the date of reported crime:44
Contributing Factors:False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No