| On April 24, 2006, 28-year old Esteban Gonzalez was taking care of his 3-year-old daughter, known as A.G, at his apartment in Oak Creek, Wisconsin, a suburb of Milwaukee.
Gonzalez put A.G. to bed around 7 p.m., but she got up out of her bed several times during the next hour or so. Around 8:30, after Gonzalez had put A.G. back in her bedroom for a fourth time, he watched a pornographic video with the sound muted and began to masturbate. He would later testify that he heard a noise and looked around but didn’t see anything and thought the noise had come from a neighbor’s apartment. He continued to masturbate before turning off the video and cleaning himself up, and then stayed in the living room watching television for a few more minutes. Upon going to the bathroom, Gonzalez would testify, he discovered his daughter was awake and was lying on the floor in the doorway of her bedroom. He again reprimanded her before placing her back in bed.
At the time of the incident, Gonzalez and A.G.’s mother were separated and going through a bitter custody battle. It’s not clear from court records what the girl told her mother, but the mother called the Oak Creek Police Department, which began an investigation. The girl was interviewed, and the interview was videotaped.
Detectives Ann Golombowski and Andre Antreassian, along with child-welfare investigator Chris Krizek questioned Gonzalez at his apartment on May 1, 2016. The interview was not recorded, but Golombowski would later testify that “it was my … understanding that [Gonzalez] thought … he had not masturbated in front of his daughter,” rather, that he “masturbated in the living room and … found his daughter in the hallway afterwards.”
The officers asked Gonzalez to come to the police station the next day. Once there, he was interviewed for five hours and served with an emergency order removing his daughter from his care. The interview was not recorded. Gonzalez would later say he offered to take a polygraph test to prove his innocence. He also asked to see the video of his daughter, but the officers declined to show it to him. Instead, they urged him to divulge his actions that night. He would later testify the officers told him that what he did wasn’t criminal and he would not face serious consequences.
As the interview continued, another officer, Lt. John Edwards, entered the room. Gonzalez would later testify that Edward began screaming and calling him a liar. He said that if Gonzalez admitted that his daughter saw “accidental but knowing sexual acts,” they could help him but otherwise he was going to jail. According to Gonzalez, Edwards said the daughter’s video was so specific that a jury would not care about his testimony.
Finally, Gonzales agreed to give a statement, and only then did the officers read him his Miranda rights. His statement read in part: “On Monday, April 24th, [A.G.] witnessed myself in the act of masturbation. Being caught up in the moment, I did nothing to shelter [sic] from this event. It was not until just after the event had occurred, that I understood the seriousness of this inaction. This was a gigantic mistake on my part, which should never [have] occurred. It was my belief that [A.G.] was asleep, in her bedroom with her door closed. It was never my intent to have [A.G.] witness these events, and I regret it whole-heartedly …. My failure to act when I had suspicion to believe is no one’s fault but my own.”
Gonzalez was arrested on May 10, 2006, and charged with one count of exposing a child to harmful material and one count of causing a child to view or listen to sexual activity.
On May 12, 2006, the police executed a search warrant and seized Gonzalez’s laptop to search for evidence of physical abuse of A.G. On May 19, 2006, a second search warrant was issued, allowing investigators to search the laptop for evidence of child pornography. An affidavit by Golombowski in support of the warrant said that on May 12, Antreassian had found two images on the laptop of what appeared to be pre-pubescent teens and that there was a connection between people who watched child pornography and those who sought sexual arousal or gratification with minors.
Gonzalez received a report about the images from the Wisconsin State Crime Lab on June 23, 2006. The report said that the images Antreassian said he found on May 12 had a creation date of May 19, when the laptop was in the possession of the crime lab. As Gonzalez would later assert in an appellate brief, “Because Gonzalez could not have downloaded the images on May 19, 2006, they must have been downloaded as false evidence by Golombowski and/or Antreassian.” The state said the creation date was caused by a harmless act of downloading the images to another disk.
The case was originally assigned to Judge William Brash of Milwaukee County Circuit Court. He heard several pre-trial motions by Gonzalez’s attorneys, Frank Schiro and Kristin Leaf. The first two, filed on July 6, 2006, sought to suppress Gonzalez’s statement to police, arguing that he had not been given a proper Miranda warning. At a hearing, the officers denied any improprieties.
Another pre-trial motion, filed on January 2, 2007, sought to admit evidence of possible misconduct by the detectives involving the laptop images created after the police seized the computer. Brash scheduled a hearing, but on July 25, 2007, due to judicial rotation, the case transferred to Judge Patricia McMahon. She canceled the evidentiary hearing and denied Gonzalez’s motion to use the laptop evidence. In her decision, Judge McMahon noted that the state no longer planned to introduce the laptop images at trial. She also denied Gonzalez’s motions to suppress his statement to police.
Gonzalez’s trial began September 22, 2008. His daughter did not testify, and prosecutors did not introduce her video interview to jurors.
The state’s case was built around the testimony of the officers, who testified that Gonzalez had admitted he was aware of his daughter’s presence while he watched the video and masturbated. Antreassian said that Gonzalez had told him that, “He looked out the corner of his eye and he did see his daughter in the room and at the time there was a video playing and he was caught up in the moment and he continued until he did ejaculate and she was in the room.”
Edwards testified that Gonzalez said he knew his daughter was in the living room during the “entire time” he watched the video. “He didn't directly look at her, but he knew she was in the room from what he heard.”
Gonzalez testified and said his statement to police was coerced. He denied any knowledge that his daughter was in the living room while the video was playing. He said that she was never within “eyeshot.” If his daughter saw any part of the video, he said, it was accidental and without his knowledge.
Over the objection of Gonzalez’s attorney, the state played the pornographic video, entitled “Five Sins,” for the jury.
Prior to deliberations, Judge McMahon gave the jury instructions about both counts. With regards to the exposure count, she read to jurors from the statute, which laid out four elements and said it was a crime to “sell, rent, exhibit, play, distribute or loan to a child any harmful material.”
Gonzalez’s attorneys had asked the judge to add the word “knowingly” to the instructions, to make clear that an accidental exhibition was not a crime. But Judge McMahon declined the request, stating: “We've got four elements, and the concept of knowing is in the context of the four elements. And I think exhibited is not such an exotic term that it needs to be described further.”
Deliberations began on September 25, 2008. Very early on, jurors began submitting questions to the court. Before their lunch break, jurors had asked for clarity on the word “exposure” and wanted to clarify the meaning of the word “to” in Judge’s McMahon’s instructions that read: “the defendant exhibited or played harmful material to A.G.”
Gonzalez’s attorneys were not told of these questions. After lunch, jurors asked more questions, and now his attorneys were notified. The jurors wanted a definition of “face-to-face” and of “eye contact.” Their final question asked for more information about the definition of “exhibit” or “play.” Gonzalez’s attorneys again offered their proposal to modify the instructions. Judge McMahon declined the request. At 2:30 p.m., the jury signaled that it had reached a verdict, and she considered the matter moot. Gonzalez was convicted of the exposure count but acquitted on the other charge. He was sentenced on November 21, 2008, to 18 months in prison, but released on December 15, 2008, pending his appeal.
In his appeal, also handled by Schiro and Leaf, Gonzalez claimed that Judge McMahon had made numerous errors that eroded his right to a fair trial. These included: her refusal to bar the playing of the video before the jury; allowing jurors to hear his statement to police; her denial of his motion to present evidence that the police may have tampered with the laptop, which would have undermined the officers’ credibility as witnesses; and her failure to give clear jury instructions and to inform Gonzalez’s attorneys of the events unfolding in the jury room.
The Wisconsin Court of Appeals rejected Gonzalez’s appeal on July 7, 2010. It said that Gonzalez was an educated man who understood the Miranda warning and had freely written his statement. It also said that allowing jurors to see the video, while not necessary to prove the crime, was within the discretion of the trial judge. In addition, the court said that Judge McMahon’s jury instructions were clear, and her handling of the jury’s questions were appropriate.
Gonzalez appealed, and on July 8, 2011, the Wisconsin Supreme Court ruled unanimously that the jury instructions were flawed, entitling Gonzalez to a new trial. In the opinion, Chief Justice Shirley Abrahamson wrote: “We conclude that the jury was not instructed explicitly or implicitly that it had to determine whether the defendant had knowingly exhibited the harmful material to the child, as distinguished from accidentally or unknowingly exhibiting harmful material to the child.” The court did not address Gonzalez’s other claims.
After the ruling, prosecutors filed a motion on September 19, 2011, to dismiss the charge. Judge Richard Sankovitz granted the motion that day.
– India Torres and Ken Otterbourg
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