.jpg) Victor Kondos
The accusation was first made in March 2007. The girl, who by then was 10 years old, told a foster parent that Kondos had raped her and forced her to perform fellatio on several occasions over a several month period beginning in November 2002 when she was six years old. The girl, identified as EM, later repeated the allegations during an interview with a Green Bay police officer and child protective worker. She said the assaults occurred after she went to live with her father, and she was very specific that the assaults occurred when she was six years old.
EM’s father and mother had divorced a few years earlier. EM and her brother, AM, who was a year older, had initially lived with their mother. However, in October 2004, after their mother moved to Pennsylvania, EM and AM moved in with their father. At that time, their father was in a relationship with Kondos, who is gay. Kondos lived in his own residence, but he spent many hours at the home and took care of the children during the day.
By the time EM accused Kondos of raping her, she and AM had been moved to a foster home. EM had begun having emotional and psychological problems that appeared after she visited her mother in Pennsylvania. EM had been removed from school and treated in an inpatient mental health facility.
Kondos was arrested on August 29, 2007, and charged with first-degree sexual assault of a child.
On August 7, 2008, as the case was proceeding to trial, Kondos’s defense attorney, William Dornaski, filed a motion to dismiss the charges. Dornaski contended that evidence showed EM did not begin living with her father until October 2004, and therefore she did not meet Kondos until that time. Therefore, the lawyer argued, EM’s claim that Kondos raped her beginning in 2002 was false.
The videotape of EM’s interview showed her unequivocal statement that she was about five or six years old when the incidents occurred. She specifically said she was not seven, eight, nine—or any other age—at the time of the abuse.
Brown County assistant district attorney Lawrence Lasee conceded to Circuit Court Judge Donald Zuidmulder that “it could not have occurred in that time frame…the child says pretty clear when it happened.” The prosecution then dismissed the charges.
However, five months later, in January 2009, the Brown County District Attorney’s Office filed a new charge against Kondos—a single count of repeated acts of first-degree sexual assault of EM on at least five occasions between December 1, 2004 (after EM began living with her father and Kondos became her babysitter) and March 2007.
In January 2010, Kondos went to trial in Brown County Circuit Court. The prosecution presented no forensic or physical evidence that EM had been sexually assaulted. The videotape of her interview with police and a child protective service worker was played for the jury even though EM explicitly said during the interview that she was assaulted when she was five and six years old.
When EM took the witness stand, she testified that she had very little memory of Kondos assaulting her. Kondos’s attorney, Raj Kumar Singh, cross-examined her and elicited some inconsistencies in her testimony. For instance, she claimed Kondos took her into her bedroom and locked the door, but there was evidence showing that the door had no lock.
But inexplicably, Singh failed to point out that she claimed on the videotape that the assaults occurred during a time period before she met Kondos.
EM’s brother, AM, testified that on one occasion, he saw Kondos take EM into her bedroom and lock the door. AM testified that he pounded on the door, but walked away when it remained locked.
Susan Lockwood, director of Family Services of Northeast Wisconsin, testified for the prosecution that children who are victims of sexual abuse do not immediately report what happened. Lockwood also testified that there are not a significant number of false reports of child sex abuse made during divorce proceedings, and that false reports of sex abuse by child victims are not a problem.
Kondos took the witness stand, but his defense attorney asked him only seven questions. In fact, the entire question and answer took up only 27 lines of transcript. The testimony consisted of Kondos denying the allegations and admitting that he had no way to prove that he did not commit the crimes.
“So, you don’t have an alibi for yourself for this several year span?” Singh asked.
“No, I don’t,” Kondos said.
“You can’t prove to this jury that you are innocent of this child sexual molestation allegation?” Singh asked.
“It’s impossible,” Kondos replied.
The prosecution, during closing argument, specifically noted that Kondos had presented no defense to the charges. “Mr. Kondos can’t give you a single reason explaining why this child would lie,” Lasee told the jury. “Mr. Kondos is right. He has no defense.”
On January 14, 2010, the jury convicted Kondos. He was sentenced to nine years in prison.
Kondos later hired a new attorney, Robert LeBell. LeBell re-investigated the case, and filed a motion for a new trial in 2012. The motion claimed that Singh had provided an inadequate legal defense in several areas, including failing to consult an expert on child sex abuse. Such an expert could have contradicted the prosecution’s expert testimony that false claims by children of being assaulted rarely occur during divorce proceedings and that those that are made are rarely false.
The motion said that AM, EM’s brother, had recanted his testimony that he saw Kondos take EM into her bedroom and lock the door. In a sworn affidavit, AM said that his testimony was false and had been coerced by his mother.
The motion also claimed that Singh had improperly shifted the burden of proof by questioning Kondos about being unable to prove his innocence. Singh, the motion noted, has “accomplished precisely what the law prohibits and which a prosecutor is prevented from doing…shifting the burden of proof to the defendant and suggesting to the jury that the defendant has an obligation to prove his innocence or present a defense.” The motion also criticized the prosecution for then telling the jury that Kondos had no defense—an improper argument that “reinforced the defense lawyers’ burden-shifting.”
The motion for new trial also contended that the trial judge had erroneously barred the defense from presenting evidence that Kondos is gay, which could have supported his denial of sexually assaulting EM.
In addition, the motion contended that the judge had erroneously prevented the defense from presenting Brown County Social Services records showing that child protective workers had received information in 2004 and 2005 of several incidents involving EM.
The records showed that child protective workers learned that EM and AM slept in the same bed on occasion, and that AM had performed oral sex on EM. EM had also admitted having sex with AM. In addition, the file showed that EM told a case worker that when her parents were still married, she and AM watched her older sister, who was babysitting them, engage in a threesome with a girlfriend and a boyfriend. The motion for new trial noted that EM was interviewed about all of those incidents and never brought up Kondos’s name.
In June 2012, the motion was granted, Kondos’s conviction was vacated, and he was released on bond pending a retrial. On December 28, 2012, the prosecution dismissed the charge.
– Maurice Possley
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