| On March 1, 2014, a mother in Kalamazoo, Michigan was bathing her five-year-old daughter when she noticed a speck of blood on the tissue she used to wipe the girl. She asked the girl whether anyone had touched her inappropriately. The girl told her mother that her younger brother touched her. The mother expressed disbelief, and the girl then said her great-uncle, 50-year-old Michael Carver, had touched her. Carver lived in the basement of the family’s home.
The girl was brought to a local emergency room, where she was examined and found to not have any physical injuries. She later described the sexual assault to social worker Ruth Westfall, while Detective Jennifer Higby of the Kalamazoo Department of Public Safety observed the conversation.
Carver was arrested on March 26, 2014, and charged with first-degree criminal sexual conduct. His trial in Kalamazoo Circuit Court began on May 13, 2015.
The girl testified that she had gone down to Carver’s bedroom at night and that he put his finger inside her and wiggled it around. Carver testified and denied that he abused the girl. Carver’s attorney, Becket Jones, tried to discredit the girl by pointing out discrepancies between her various statements and testimony. In one instance, she testified that abuse happened during a time period when it was physically impossible to have taken place.
Jones called both Higby and Westfall as witnesses for the defense. His goal with Westfall was to use the social worker’s testimony to establish further discrepancies in the girl’s testimony. But Westfall testified that established protocols for interviewing potential victims of sexual abuse made false positives rare. Higby testified that after she observed the girl talk with Westfall, “I was comfortable that a sexual assault took place.”
The jury convicted Carver on May 20, 2015, of first-degree criminal sexual conduct. A month later, he was sentenced to between 25 years and 50 years in prison.
Carver appealed, asking the trial court to hold a hearing on whether Jones provided ineffective assistance of counsel because he failed to call an expert witness on child suggestibility. The court granted the motion, and an evidentiary hearing was held in July 2016.
Carver’s main witness was Dr. Daniel Swerdlow-Freed, a forensic psychologist from Michigan. Swerdlow-Freed testified that young children are highly suggestible, meaning that they can readily accept changes to their initial statements even after receiving only subtle pressure from adults. He also said that young children have difficulty distinguishing between things they have experienced and events they have heard about. He said these new false memories can become quite vivid in the retelling, a process known as “contextual embedding.”
Swerdlow-Freed reviewed the trial transcripts and other documents and testified that he had concerns that the child was susceptible to suggestions. First, the mother had frequently asked the child about inappropriate touching, signaling the importance of this issue. In addition, he said:
“What the research shows is that children tend to be very accurate and consistent about the central details. But, here there’s a discrepancy between what [the victim] is reporting and what her mother is saying [the victim] told her. So, either mom is not accurately reporting, which is certainly one hypothesis. And, if she’s not accurately reporting about this, you know, you have to wonder about what happened.”
Swerdlow-Freed also said that Higby and Westfall had both given incorrect testimony. He said that Westfall’s statement that false positives were rare was not supported by any research. He said that Higby’s statement that she was comfortable in her belief that an assault occurred was really just an opinion. Research had shown, Swerdlow-Freed said, that professionals have no better than an even chance of judging whether a child is telling the truth.
Jones testified at the evidentiary hearing. He said that he had considered retaining an expert witness (attorneys in his law firm had used Swerdlow-Freed in other cases), but he chose a strategy aimed at highlighting the discrepancies in the girl’s testimony in an attempt to undermine her credibility.
Judge Lipsey Alexander of Kalamazoo Circuit Court vacated Carver’s conviction and granted him a new trial on November 7, 2016. In his decision, Lipsey said that Jones failed to educate himself in the areas of “child memory, suggestibility, taint, and false memories.” Because of this failure, Lipsey said, Jones was unable to make an informed decision on the need for an expert witness and to properly question Higby and Westfall.
The state appealed, and the Michigan Court of Appeals in a 2-1 vote upheld the decision on August 29, 2017. The majority opinion said: “As the trial court correctly noted, Swerdlow-Freed’s testimony, if it had been presented to the jury, would have provided the jury with the context for properly evaluating the child victim’s statements. Without that context, however, the jury could not reject the accuracy of the victim’s report unless it essentially found that she was lying. Given the facts of this case, such a finding was highly unlikely.”
The state filed a motion to appeal that ruling, but the Michigan Supreme Court denied its application on June 1, 2018.
Carver was released from prison on August 1, 2018. The state dismissed the charge on November 6, 2020.
– Ken Otterbourg
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