Statement of Facts
A. Ryan Smith
Prior to his arrest, 13-year-old Ryan Smith lived in Ashland, Oregon with his sister and his father, an optometrist and his mother, an elementary school librarian. On June 15, 1995, the complainants’ family (FAMILY X) moved in to the house next door. (T. 76, 1135)
Ryan had a busy and productive life. He was a Boy Scout, took guitar lessons, and raised birds in his back yard. (T. 1144) Much of Ryan’s time after school and on weekends was spent working on the pigeon coop that he and his father built and with the birds. (T. 989)
From the moment he was accused, Ryan has vigorously asserted his innocence. (T. 611) He continued to do so through a spirited cross-examination at trial. (T. 1159, 1165, 1167, 1171, 1173, 1181, 1184) At his dispositional hearing, when Ryan was offered leniency in exchange for an “admission” of guilt, he steadfastly maintained his innocence. (T. 1423) Ryan remains incarcerated at Grants Pass Correctional Facility, where he continues to maintain his innocence, even through the offers of release in exchange for a claim of guilt.
B. The FAMILY X
The FAMILY X is comprised of Mrs. X and Mr. X, their biological sons, AX and BX, and ten adopted children, X1, X 2, X3, X4, X5, X6, X7, X8, X9 and X10. The latter eight of the adopted children suffer from various mental and physical disorders. (T. 78) These are the eight complainants who – in April 1998 – accused Ryan of abusing them.
C. Overview of the Case
Ryan was not convicted by clear-cut or overwhelming evidence. Rather, the case was a credibility contest between the complainants and Ryan.
The allegations in this case are incredible, and often impossible.1 Ryan was alleged to have abused the complainants, who ranged in age from seven to 13 years old, in the Smith and
FAMILY X backyards – while the Smith and FAMILY X families were at home,2 as well as in public restrooms in a school and public park. (T. 335, 220)
The FAMILY X household was a crowded and active place. As soon as they moved in, FAMILY X embarked on a major house renovation on which Mr. X did most of the work. (T. 143) In the Spring of 1998 – the time of the alleged acts –Mr. X was putting a roof on the house and thus was present most of the time the time in the FAMILY X yard and on the roof that overlooked all of the locations in which the charged acts allegedly occurred. (T. 144) Mrs. X was also at home during the day, monitoring the complainants as they played in and around the house. (T. 158)
The complainants were not permitted at the Smith house without their older sisters X2 and X1. (T. 150, 299, 527) Ryan was not allowed at the FAMILY X home unless Mrs. X or Mr. X were present. (T. 937, 947) Despite all that supervision and the violent, noisy nature of many of the alleged acts, not a single incident of abuse was ever seen or heard.3
At the time of the accusations, Ryan was five feet eight inches tall and weighed 180 pounds. He was charged, and convicted, of violently molesting and raping girls and boys, several, less than half his size and weight. None suffered injuries consistent with the violent assaults alleged. None reported or exhibited pain or discomfort at the time of the alleged assault an act of any kind, let alone of a type consistent with the accusations of such brutal attacks.
Not one child ever came home missing any articles of clothing or in a state of undress; a near impossibility given that Ryan was accused of undressing, raping and re-dressing them often in minutes, if not seconds. Though complainant X9 was eventually induced to say that Ryan made her vagina bleed, not a drop of blood was ever found on any of the complainants or their clothing. Likewise, though accusations would include that Ryan urinated on the complainants, no urine - or smell of urine - was ever found on them or their clothes. (T. 485)
Although Ryan is alleged to have urinated, defecated, and ejaculated in various places in the FAMILY X yard and patio as well as in his own yard and garage, no evidence of this was offered. The state did not even bother to look for biological evidence.
Investigators elicited from the complainants a list of items allegedly used to molest them. A search of the Smith home found nearly none of these items.4 (T. 20, 670, 674)
D. The Genesis of the Prosecution
1. Events on the Day The First Accusation Against Ryan Was Elicited From X3
On Thursday April 16, 1998, Ryan came home from school with two friends at about 3:35 pm. (T. 434,435,1041,1103,1108,1156,1157) Ryan’s sister was at home. (T. 1110, 1140,1158) Minutes later, X3 came to the Smith yard to join the three boys. (T.436,1041,1103)
X3 was a severe diabetic. Fearing for his health, Mrs. X never let him out of her sight or hearing for long. (T. 158, 647) A few months earlier, X3 had asked for, and received permission to play in the Smith yard and help Ryan with his birds. (T. 86, 648)
Ryan’s mother arrived home just after 4:00 pm to drive him to his 4:30 guitar lesson. (T. 998, 1042,1063,1158) By that time, Ryan’s friends had gone home he and X3 were in the pigeon coop. Mrs. Smith told Ryan to be ready to leave for his lesson by 4:15. (T. 998,1158)
Because X3 was prone to diabetic episodes, Mrs. Smith had previously told Ryan and X3 that X3 was not to come on the Smith property when she or Dr. Smith were not home.5 (T. 999) Finding X3 in the yard that evening, Mrs. Smith told Ryan – in X3”s presence – “I’ve told you that I don’t want X3 over here when I’m not here.” (T. 999,1159) And she told X3, “I want you to understand I do not want you over here when I am not here.” (T. 1002)
Ryan and Mrs. Smith returned from the lesson at about 5:30. (T. 1161) Mrs. Smith prepared dinner and Ryan went out to the pigeon coop. X3 came back. (T. 1006,1161)
Twenty or 30 minutes later, Mrs. Smith went to the yard and told Ryan to come inside. Again, she told X3 to go home. (T. 1007) The Smiths’ dinner was at 6:30. There was a parent-teacher conference at Ryan’s school at 6:45 that evening. (T. 1007) A few minutes later, Ryan and X3 came to the kitchen window and asked Mrs. Smith to come outside and take a picture of them. (T. 1008) The two boys had been taking pictures of the birds and of the pigeon coop. (T. 1161) “At that point,” Mrs. Smith testified, “I was upset because it was getting late; we were in a hurry.” (T. 1008) She took a picture of the boys and said: “That’s it. X3 has got to go home....”6 That was the third time that she sent X3 home that day. (The second time he actually left.) (T. 437,1008, 1010).
2. MOTHER X Elicits the First Accusation from X3.
The first accusation of abuse was elicited from X3 by Mrs. X that same evening. (T. 92, 419)
According to Mrs. X, X3 was upset on Thursday afternoon after Mrs. Smith sent him home the first time and told him not to come back. (T. 88, 999, 1159) When Mrs. X asked what was wrong, X3 said “never mind. I’m going back over to Ryan’s,” which he did, returning there when Ryan came home from his guitar lesson. (T. 88)
When X3 was sent home from the Smith house for the second time that evening, Mrs. X thought he was upset. When X3 would not tell her that he was upset, she sent him to his room, until he had something to say. (T. 91,201) Thirty to forty five minutes later, X3 came out and said he had something to tell her. (T. 79,91,219) Mrs.X claimed it was then that X3 told her that during the prior week, Ryan exposed his penis to X3 and fondled him. (T. 93,203)
The following afternoon, Ryan was arrested. He would never return to his home. (T.205)
E. The Investigation
On Friday, April 17th, Mrs.X took X3 for questioning by his therapist, Toni Richmond. Though he had never said anything like it before, Richmond elicited from X3 the same claim that Mrs. X elicited. (T. 707) That day, X3 was also questioned by Ashland Police detective Alderman, who elicited Mrs. X’s claims and others, including one that Ryan: said he wanted to sleep with one of X3’s older sisters; held X3 close and rubbed against him; wanted to touch X3’s penis; locked X3 in the pigeon coop and exposed himself; and threatened X3 with a power drill. X3 specifically told Alderman neither boy touched the other’s penis. (T. 610; App. 239-248).
Through the interviews that day, X3 never said anything about his siblings having been molested or about any abuse involving animals. Yet when X3’s interviews were through, Mrs. X told Alderman that she was concerned that Ryan might have harmed her other children – and her pets. (T. 204, 205) She would go home and quickly produce support for those concerns, eliciting from the other complainants claims that they – and animals – had been molested.
Within days, Mrs. X elicited from the complainants all sorts of allegations, bizarre and banal, including: sex acts with rabbits and pigeons, having complainants on his lap, making threats with a shotgun, playing rough, putting his hands down pants to touch private areas, using bad words, exposing himself, kissing, forcing complainants to pull down their pants, encouraging them to urinate in public, asking them to kiss his penis, and urinating on them. (T. 206; App. 1-3)
For several days, Mrs. X continued to elicit wilder stories that included numerous violent vaginal and anal rapes. (App. 85)
By Thursday, April 23, 1998, Mrs. X had expanded the accusations to include: that there was a witness to an anal rape in the public school bathroom (who saw no such thing, infra), and that Ryan squirted rocks from his penis and tried to put rocks in X4’s rectum. (App. 87)
Police interrogations based on claims elicited by Mrs. X prompted similar stories of rape, and other brutal assaults in the Smith and FAMILY X yards. At the time at which these acts allegedly occurred, Mrs. X, Ryan’s sister, and a neighbor were at home and older FAMILY X sisters, X2 and X1, were supervising.
Police interviews revealed Mrs. X’s influence on the accusations, as well as the influence of the complainants on each other as the stories of abuse were developed. For example, X10 told detectives that X8 told her what to say to them. (App. 344, Ex. 24) X4 accused Ryan of urinating and defecating on X7 and then conceded that he did not remember the incident and knew of it only because X7 told him it happened. (App. 407, Ex. 24)
The complainants were subsequently interviewed by other adults who served as prosecution investigators and witnesses. These adults introduced details of abuse the complainants had not alleged. (T. 467-468, 765, 767, 772, 778)
When X10 had nothing to say about abuse and wanted to draw, therapist Foster insisted that she talk “about the bad things that happened to her.” Foster extracted a claim that Ryan put his penis “in my butt and it hurt,” but when Foster stopped pressuring her, X10 returned to drawing and made no more accusations. (T. 921) She then had X10 draw a picture of Ryan and cut off his head, legs, and arms.7 (T. 922) Foster also made X4 draw “a very pretty picture of Ryan [and] cut it in pieces.” (T. 930)
Foster went so far as to conduct group sessions in which she instructed all of the complainants to share stories of abuse. On May 6, 1998 – just weeks after the initial accusations – Foster met with the entire FAMILY X family to prepare the complainants to testify at trial. She instructed them to talk about abuse by Ryan and to “exchange[] information.” (T. 898) She led the complainants through something she calls, “sensory input of the abuse” during which she told them to:
conceptualize what they remembered and saw during the abuses, what they heard during the abuses, what kind of tastes they thought of when they thought about the abuses, what kind of touch, texture, touch that they remembered during the abuses. And smells during the abuse.
(T. 905-906) Through these means, Foster produced accusations from each complainant.8
Mrs. X ’s influence, as well as the influence of the complainants on each other, was also revealed to the therapists. For example, X4 told therapist Helstein that Mrs. X was “ very good at giving him clues” that remind him what to say. (T. 847) X9 told Dr. Sibley she knew of her siblings’ accusations. (T. 485) X7 told Dr. Strickland that he and his siblings had talked about their interviews – accusations – among themselves. (T. 765)
F. The Trial
The trial commenced on February 1, 1999. The verdict was handed down ten days later.
State’s Case
The state presented the complainants, Mrs. X, three police officers, three “therapists” witnesses, two physicians, the older sisters, a child and mother who were prior residents of the FAMILY X house, and four elementary school teachers. Videotapes of police interviews of the complainants were played. (T. 393,577,461,510,512,576,801,849)
The state presented massive amounts of hearsay from adult witnesses about the accusations they had elicited from the complainants, that for the most part the complainants had abandoned by the time of trial.
The complainants contradicted their own and each other’s claims. Complainants who were named as witnesses to certain acts testified they never saw those events.9 Complainants claimed to have seen another complainant being abused, only to have the alleged victim deny or never report experiencing that event.10
To disguise these inconsistent, incredible and often impossible accusations, the state relied on medical and “therapist” witnesses to instruct the court that the accusations were true. (T. 108, 135,749,815,865)
State “therapist,” Valerie Foster – neither a psychologist nor social worker – polluted the trial with opinions based on theories of her own and that have been rejected by the scientific community. Foster spouted as science her believes that: children cannot report events they never experienced (T. 865); indicia of abuse can be deduced from a child’s report (T. 865); inconsistencies in reports are indicia of truth (T. 866); suggestive interview methods could not have influenced the complainants (T. 869); and certain behaviors (i.e., those reported by, inter alia, MRS X) are indicators of truthful accusations. (T. 882-886) She also claimed that she evaluated the veracity of the complainant’s claims and determine them to be true. (T. 900, 903, 914)
The state’s medical expert, unable to find legitimate evidence of abuse – despite the violent acts alleged in this case – claimed that the absence of physical evidence was “consistent with” the accusations. (T. 758,764, 767-768,771,472-473)
The state’s pediatrician, Dr. Strickland, posited a theory that Ryan raped X10 by penetrating her vagina so delicately, and with such precision had managed to stretch and thin, but not tear, her hymeneal membrane. (T. 777, 778) Strickland overlooked that because she had not seen X10’s hymen prior to the alleged abuse, she had no basis to determine that it had gotten thinner. Dr. Strickland’s methods of examination and her terminology were contrary to accepted medical practice. Further, universally accepted scientific studies have disproved her theory that the hymeneal structure or appearance that she claimed to have seen is an indicator of abuse.11
G. The Complainants
1. X3
X3 was 12 years-old at trial and had a history of psychological and physical problems that spanned most of his life.
a. X3’s History of Psychological and Physical Problems
X3 was enrolled in the Southern Oregon Child Treatment Center program in 1993 – five years before making his accusations where he remained through August, 1995. (T. 697) He suffered from psychological problems including: difficulty following directions and managing anger, acting out, aggressiveness, and an inability to feel remorse for his actions. (T. 700)
In May 1995, X3 began manipulating his blood sugar levels to gain attention. (T. 726) He hoarded food and candy and then ate them in ways that would affect his levels. He ran water over his urine test strips to falsify the readings. (T. 728)
In January 1996, X3 came home from school with a distended stomach. He was hospitalized at the Rogue Valley Center where an exhaustive examination there and in a California hospital revealed no physical cause for his problems. (T. 491, 492, 495, 501) After returning home, X3 went into a coma and was placed at Emanuel Children’s Psychiatric Hospital for five weeks. (T. 164)
On May 4, 1996, X3 ran away from home and bit his sister X1 to the bone. When he was reprimanded for failing to do his chores, X3 cut his feeding tube that had been inserted in the hospital. (App. 51, Ex. 127) As a result, he was admitted to Legacy Emanuel Psychiatric Hospital. (T. 161-162) His admission form notes that he suffered from “extreme psychosocial stressors,” “major depression,” “adjustment disorder,” and “parent child relationship disorder” and was “actively suicidal in response to [MRS X]’s push for him to love and feel loved.” (App. 51) X3 was placed on another feeding tube and again cut it. (T. 738)
X3 continued to induce illnesses by manipulating his blood sugar levels. (T. 169, 509) Recognizing that his problems were psychological, X3’s physician decided that X3 would no more be admitted to the hospital for future gastrointestinal symptoms. (T. 491)
On August 5, 1996, Mrs.X reported to therapist Richmond that she was having a difficult time with X3 and questioned whether he could stay with the family. (T. 728) X3 was readmitted to Emanuel Hospital Psychiatric Unit in October 1996. He displayed “a pronounced victimized tone.... [and] a fair amount of anger....” (App. 61, Ex. 128) A hospital report from that visit notes that X3 “seems focused on adult attention and has learned many behaviors to get this attention.” (App. 63, 128) He was transferred from there to a state hospital psychiatric ward where he remained through the end of April 1997. (T. 165)
Two months later, in June 1997, X3 was readmitted to the Southern Oregon Child Treatment Center program because of medical issues and because he was having “a really difficult time at home.” (T. 703) He remained in the program through December, 1997. (T.705-706)
In February, 1998 – X3 was again admitted to Rogue Valley Hospital with a distended stomach. X3’s doctor was concerned that he was enjoying the attention he received at the hospital and believed he had overdosed himself with insulin to gain admission. (T. 168-169, 749) After four days, X3 was moved to the psychiatric ward of Emmanuel Hospital in Portland for, among other things, an “increase in acting out behavior.” (App. 64) He remained there through March, 1998. (T. 166, 497, 498, 1322) At the time of that transfer, Mrs. X told Dr. Sibley that she was “concerned that even though he is perfectly stable ... at the time of discharge that his problems may not be over....” (App. 68) While in the psychiatric ward, X3 had nightmares that Mrs. X was “coming after him....” (App. 72) Also during that stay – a month before he made the first accusation against Ryan Smith – one of his doctors reported:
the etiology of X3’s problems ... is psychological. It was proven two years ago that he has no underlying path physiology. I can make some specific recommendation that hopefully will help move things along, but I believe only time and psychiatric intervention are what’s going to relieve X3 of his bowel symptoms again.
(T. 509; App. 73)
Thus, X3’s accusations against Ryan – the accusations upon which all of the others would be based – came from nearly two years of hospitalizations for severe psychological disorders.
b. X3’s History of Abuse Allegations.
When the first accusation against Ryan was elicited from him, X3 already had a history of making accusations of abuse.
In 1994, while in the hospital, X3 reported to Richmond an incident of “inappropriate touching with a male peer also in the hospital.” (App. 161)
In May 1996, X3ccused Mr. and Mrs. X being rough with him and of having slapped, spanked, and hit him with a belt and paddle. (App. 57) They denied these accusations, though at trial Mrs. X said X3 had never made them.
In the summer of 1996, Mrs. X elicited from X3 accusations against two former foster mothers, Martha Ware and Millie Williams. (T. 183-184, 185) X3 claimed that they: held his head under water while bathing him; held him upside down and dipped his head into the toilet; put something bad tasting in his food; beat him with a weed from a tree, causing painful sores; struck him with a yardstick, causing welts; shot him with a gun; inserted a toothpick into his penis and beat him with a yardstick, leaving scars.12 (T. 185-188, 450-451) Mrs. X was pleased with those accusations because, she told therapist Richmond, she felt they evidenced a growing bond between X and herself. (T. 179, 733)
X3’s accusations against Mr. and Mrs. X and his former foster mothers are important to note because they would reemerge in the accusations that the other complainants made against Ryan. Over time, the complainants claimed to have seen photographs of Ryan holding a baby by the legs upside down over a toilet; hitting a baby with a stick; forcing them to eat something bad tasting and to have inserted toothpicks into his own penis. (T. 248, 279, 281, 294-295)
C. X3’s History of Acting out and Being Physically Aggressive Toward His Siblings and Others
X3’s behavioral problems included physical abuse against his siblings and Mrs. X. These were so pronounced that they, as well as the reactions and fears by other family members are reported in X3’s psychiatric records.
In April 1994, X3’s therapist reported: “X3’s...siblings...are angry, upset, and fearful of his frequent physical aggression.” Richmond repeated that observation at least through 1996. (T. 721)
Several times in 1994, Mrs.X reported that X3 had assaulted her and that she and the complainants were afraid of him because he threatened them and had hurt her.13 (T. 723; App. 138) Mrs. X reported to Richmond that X3 attacked and physically hurt her on numerous occasions, going so far as to kick her over a garbage can, throw her food on the floor, curse her, and threaten, “if you make me angry, I’ll have to hurt you.” (T. 722, 723, 724-725, 726; App. 139, 142)
In February, 1995, Mrs. X3 reported that X3 physically assaulted her. (T. 724) In March 1995, she reported that X3: had been acting out; was “assault and acting macho” and threatened to kill X5, poke out X7’s eyes, and to burn down the house. (T. 725)
In May, 1995, therapist Richmond wrote a letter on Mrs. X’s behalf requesting more money for foster care because, “[X3] continues to target [Mrs. X] for his physical aggression as well as the other children.” (T. 726; App. 46) In July 1995, X3 was sent home from a camp for diabetic children because he assaulted a camp counselor.14 (T. 726)
X3’s Testimony at Trial
X3 alleged at trial that on two occasions in the Smith garage, Ryan touched him with his penis, showed him a picture of a naked woman in a bathtub, threatened him with a power drill and rubbed pigeons and rabbits on his body and penis. (T. 403, 405, 407, 412)
2. X10
X10 was 10 years old at trial. She has Cerebral Palsy, mild to moderate hemiplegia, eighty percent hearing loss, mild mental retardation, developmental delay, and a processing disorder. (T. 134, 777) X10 wears a leg brace, which, according to Mrs.X made it difficult to pick her up and manipulate her physically.15 (T. 137)
X10’s Testimony at Trial
X10 claimed that on one occasion on the FAMILY X patio, Ryan touched her bottom with his penis. She said her pants were on when this happened. She also said her pants were off. (T. 548, 551, 552)
3. X7
X7 was nine years old at trial, has an IQ of 59, is capable only of borderline intellectual functions and suffered from pervasive development delay and attachment disorder, which causes inappropriate over-friendly and over-hostile relationships. (T. 122, 709, 829-830) As late as 1995, X7 was generally functioning at the 2-3 year age level in all areas. (App. 75)
X7 exhibited behavior problems, including conflict with his siblings and parents and lying. He was also stealing, hoarding, and gorging on food, eating non-food items, “wandering around during the night, and overeating when the family was asleep.” (T. 809, 811, 833)
X7’s Testimony at Trial
X7 testified that he was clothed when Ryan touched his bottom and penis with his hand. (T. 563) X7 claimed Ryan put his penis in his mouth while they were on the play structure in the FAMILY X yard with X10 and X5, but that their eyes were closed. (T. 564, 570, 571)
4. X9
X9 was 10 years old at trial. She suffered from drug and alcohol exposure in utero, and has been diagnosed with severe learning disabilities. (T. 98)
In May 1997 – a year before the accusations in this case – her therapist reported that X9 had regressed, and showed increasing difficulty getting along with peers, as well as signs of extreme of confrontational and clinging behavior. (T. 836) Mrs. X believed that X9’s regression might have been caused by X3’s return from the hospital. (T. 194)
X9’s Testimony at Trial
X9 testified that Ryan hit her and touched her vagina and bottom with his hand while on the FAMILY X patio with all of the complainants. (T. 230, 232) She claimed that on about ten occasions, with all of the complainants present on the patio, Ryan took off his shirt and pants, then took off her clothes, and touched her vagina. (T. 233, 234) She claimed that while she and Ryan were standing, he put his penis in her vagina “very far”, and “sick” white stuff came out of it. (T. 234, 235, 237) X9 said that immediately after this, Ryan did the same thing to X10. (T. 237)
X9 testified that Ryan showed her a photo album containing pictures of Ryan with naked men and women, and with teenagers without pants. (T. 243, 244, 279) She also said he showed her a gun and drugged her with pink medicine that made her sick and dizzy. (T. 247, 249-250)
X9 said that X6 and X5 took pictures as Ryan showed her his penis and put his penis inside her on the FAMILY X patio, made her watch him touch his friends #1and #2 in the Smith backyard, and that she saw Ryan with a condom. (T. 271, 272. 276,278) Neither boy corroborated that story.
5. X6
X6 was seven-years-old at trial. He was subjected to prenatal drug exposure and suffers from Optional Defiant Disorder, Ausbergers Syndrome, preservation, ADHD and has had problems with violence, nightmares, intense distress, hyper-vigilance, exaggerated responses, accidents, impulsiveness and tantrums. He is unable to respond to requests or directions, and is physically difficult and takes chances without understanding consequences. (T. 819, 822, 825)
X6’s Testimony at Trial
X6t testified that on 12 occasions on the FAMILY X patio with X10, X9, X4, and X7 present, Ryan tried unsuccessfully to put his penis in X6's mouth. (T. 312, 313) He also said that Ryan once put his penis in X6’s mouth, pulled down his pants ten times on the FAMILY X patio, spanked him with and without his clothes, and pulled on his penis for 10 minutes while X9, X10, X8 and X3 were present. (T.313,314,315)
X6 said Ryan took a picture of himself pulling his own penis, but that Ryan was not in that picture. (T. 316)
6. X8
X8 was seven years old at trial. (T.111) Mrs. X testified that he is very delicate, is overwhelmed easily, and cries often. He has problems with learning development. (T.107-108)
X8’s Testimony at Trial
X8 testified that on four occasions in the FAMILY X and Smith yards, Ryan, while naked, pulled down X8’s pants and put his penis in X8’s bottom. (T. 520)
7. X5
X5 was nine years old at trial. He was “quite delayed” when he joined the FAMILY X. (T. 115) He has had problems with anger - including explosive temper tantrums and lashing out - since he was three or four years old. (T. 115)
X5’s Testimony at Trial
X5 testified that Ryan anally raped him in a school bathroom. (T. 335) He said that Ryan pulled down his own and X5’s pants, stood X5 against a wall and put his penis in X5’s bottom. (T. 335-336) X5 claimed that a boy named Michael Ericson came into the bathroom as he and Ryan were pulling up their pants, exclaimed “sick,” used the bathroom, and left.16 (T. 337)
X5 claimed that Ryan did the same thing on a later date, that time making him sit on a radiator after raping him. (T. 338, 349) X5 claimed that this happened during the school day and that afterward, he could barely walk.17 (T. 340)
8. X4
X4 was 10 years old at the time of trial. He was born premature to a drug abusing mother. (T. 129) Prior to being adopted by the FAMILY X, X4was moved through numerous foster homes. (T. 129) X4 had inappropriately touched his siblings. (App 3)
X4’s Testimony at Trial
X4 testified that on the FAMILY X patio with X5, X8, X7, and X6 present, Ryan tried to put rocks into his bottom, touched X4’s bottom with his penis, pulled down his own and X4’s pants and put his penis into X4’s bottom, and that he did not see Ryan’s penis, but that “white stuff came out.” (T. 586-589, 595)
X4 said too that one day he, X9, X8 and X5 were walking to school with Ryan, whose penis was outside his pants, that one day he saw a picture of Ryan “poking” a baby’s “private” and another picture of Ryan going to the bathroom, and that once Ryan and another boy took pictures of X10. (T. 589, 590, 599)
9. The FAMILY X Complainants Have A History Of Intra-Familial Assault And Molestation
MRS X reported to the police in April 1998 that X4 had inappropriately touched X7 and X6 and X4. (T. 14-20; App. 3, 135) X3’s behavior prompted a rule prohibiting him from entering the girls’ bedrooms; a rule that he broke repeatedly. (T. 15 ) No details of those events were produced at trial, nor was inquiry of them permitted.
Mrs. X reported to a therapist that when X3 came home from the hospital in May of 1997, all of the complainants began suffering severe and unexpected regression in her behavior. (T. 194, 1318)
H. MRS X
Mrs. X’s trial testimony is most noteworthy for her selective memory and misleading claims.
Mrs. X - who never trusted Ryan - elicited the first accusations from each of the complainants. Her history reveals a penchant for eliciting accusations (supra.) and her testimony, and that of the complainants, reveal that she relied on suggestive tactics to extract accusations against Ryan.
1. Mrs. X Has A History Of Eliciting Accusations Of Abuse From Her Foster Children
In the summer of 1996, Mrs. X elicited from X3 accusations of abuse by former foster mothers Martha Ware and Millie Williams. (T. 183) She aggressively pursued those accusations. X3 found at the time that she was “too intense” and “ma[de] a big thing out of it,” even though he did not want to talk about it.18 (App. 80, Ex. 129)
2. Mrs. X Rewarded The Complainants For Accusations Against Ryan Smith With the Extra Attention They Craved
The FAMILY X complainants craved attention - a scarce commodity, given the number of children in the house and their special needs. For example, in April 1998 - just before the accusations against Ryan - Mrs. X met with therapist Helstein to discuss “X9’s excessive need for attention.” (T. 196; App. 84)(T. 195) X3 also embellished his accusations against Martha Ware in order to gain sympathy. (T. 732)
The complainants also acted out to command attention. X3’s self-induced illnesses and manipulation of his blood sugar levels to gain attention are an example of this, as is the worsening of X3’s behavior when X6 came to live with FAMILY X . (e.g. T. 169, 189, 726) Mrs. X reported in 1995 that X3 used negative behavior to gain attention. (App. 187) When X3 returned home from the state hospital in April, 1997, the other complainants regressed because “all of a sudden everyone has to jockey for position ....” (T. 1320)
X3 received tremendous attention for his accusation against Ryan. The other complainants saw that. X9, for example, became immediately aware of the attention X3received for his accusations. She provided similar accusations in exchange for attention. (T. 101, 102) Indeed, therapist Helstein testified, for example, that in June 1998, after X9 began accusing Ryan, Mrs. X began getting along with her better than before. (T. 841)
3. Mrs. X’s Memory Was Very Selective During Trial
Mrs. X’s memory was highly selective at trial. For example:
Mrs. X testified that X3 was “a sweet, gentle boy,” and denied that he had episodes of violence over the years, and claimed he has “never” been violent or “assaultive” toward her. (T. 158) This claim was a total fiction.
In fact:
! In April 1994, Mrs. X reported to Richmond that X3 had been repeatedly “physically aggressive towards [her]” and two siblings. (App. 136, 137)
! In May, 1994, she reported that she was afraid of X3 and that he had hurt her, threw her over a garbage can and threatened more violence. (App. 138, 142)
! In 1995, Mrs. X was upset that “X3 has been physically assaultive towards her this past weekend.” (App. 175)
Mrs. X testified that X3 was not assaultive toward his siblings, that they are not afraid of him and that “he doesn’t have much power when it comes to his siblings.” (T. 214) In fact, she reported in 1994 and 1995 that X3 had been assaultive and aggressive toward the other complainants who had become angry, upset and fearful of his frequent physical aggression. (T. 721, 722, 723, 725, 726, 728, 837, 700; App. 138, 235)
Mrs. X claimed she was not aware that X had accused her and Mr. X of abuse and that he has never accused her of hitting him with paddles, pinching him, or spanking him and that she never had the opportunity to deny those accusations. (T. 174, 177, 178) In fact, in 1994, Mrs. X was told that X3 had accused her. She denied the accusation and told therapist Richmond that “X3 embellishes constantly.”19 (App. 136, 176) A May 5, 1996 hospital admission report contains X3’s accusations against her and her defense. (T. 174-175; App. 57)
I. Missing Witnesses
The complainants named several people who, they claimed, were disinterested witnesses to various acts of abuse. (T. 268, 276, 278, 337) These included: Michael Ericson, who, according to X5 witnessed his anal rape in the bathroom (T. 337), Ryan’s friends Robert and Andrew, who, according to X9 were molested by Ryan in the Smith backyard while she was forced to watch (T. 276, 278), and “the boy” who X4 claimed was taking pictures of him in Ryan’s backyard. (T. 600) The state did not call any of those as trial witnesses.
K. The Verdict
The trial court justified its verdicts in large part on the favorable impression upon him made by Mrs. X Crediting her “ability to remember things,” the trial court overlooked the vagaries and selectivity of her memory. (T. 1413)
Twisting the burden of proof somewhat, the court found that the defense had not proved “why [Mrs. X] would have encouraged the kids to make things up about Ryan,” the court convicted Ryan. (T. 1412, 1413)
L. Sentencing
The dispositional hearing occurred on March 11, 1999.
A sentencing official promised that if Ryan would “acknowledge responsibility” for the acts alleged, “he could be considered for a non-incarceration residential treatment.” (T. 1423) Ryan would not claim responsibility for acts that never occurred. Incarceration was recommended and the trial court placed Ryan on probation for each count for which he was convicted on the condition that he claim guilt. (T. 1423, 1440)
Ryan refused. As a result, in June 1999, he was incarcerated at Grants Pass Correctional Facility, where he remains to this day. After six years of incarceration, Ryan, now 22 years-old, continues to assert his innocence, despite periodic and assurances that he could be released if he would say that he did the crimes for which he was unjustly convicted.
1According to the state, Ryan performed, among others, the following feats:
! anaLly raped eight-year-old X7, twice, in an elementary school bathroom - once, in the presence of a witness who denied seeing this – after which both times X5 resumed his school day without incident or difficulty. (T. 335, 338)
! molested X3 by holding him with both arms and at the same time pulling down his own and X3’s pants. (T. 405-406)
! took a picture of himself pulling X6 around the yard by his penis. (T. 316)
! anally raped nine-year-old X8 and 12-year-old X3. (T.520,586,103,760,910)
! pulled down his own and X4’s pants, raped X4 and then dressed himself and X4 after X4 fell down and hurt himself on the FAMILY X patio in the time it took the other complainants to run into the house and fetch Mrs. X to tend to X4’s injuries from his fall. (T. 131, 588)
! raped X9 on the FAMILY X patio while X6, X5, and X4 were present and taking photographs. (T. 271-272; Mrs. X report to police #2) No photographs were ever found.
! somehow committed all of these violent anal rapes without any of the complainants exhibiting any physical symptoms or even discomfort. (T. 758, 764, 767)
2The acts are alleged to have occurred in the Smith garage and backyard (e.g., T. 110, 270, 405, 520) and on the Family X patio (e.g., T. 548, 556), yard (e.g., T. 570, 574), and wood pile. (e.g., T. 232)
3Mrs. X listened closely to the complainants play. (T. 158; App. 3) She never saw or heard any acts of abuse alleged to have occurred in her back yard, let alone the violent acts alleged. She conceded also that X1 and X2 had “no knowledge about [Ryan’s alleged] actions with the younger complainants.” (App. 3)
4None of the following items listed by the complainants were found: ! Pictures of Ryan naked, putting on a condom, urinating with “white stuff” coming from his penis, holding a baby in water while pulling open her vagina, with a girl with lots of body piercing, earrings in ears, navel and nipples, poking a baby with blood on it, with lots of girls, with his mouth on a girl’s private parts, or “sexing” girls ! Pictures of naked men, women, children, and white dogs and cats ! Pictures of children looking at men’s penises ! Pictures of man beating naked woman with black stick in a bathroom ! Pictures of two children being whipped against a wall ! Pictures of Mr. Smith with two naked women kissing him with his tongue ! Pictures of Mrs. Smith with naked man ! Picture taken by X5 and Gxxxxxx of Ryan raping X9 ! Alcohol ! magazines ! Pink pills or clear liquids ! Pictures of animals “going poop” ! Boxer shorts with zigzags or lightening on them. (T. 670-678; App. 4-38)
At trial, the state claimed that Ryan’s family removed these items from the house during the period of time between the arrest and the execution of the warrant. There is nothing in the record that even suggests this. Ryan never returned to the Smith house after his arrest. The state’s failure to search the house sooner, reflects more in its decision not to conduct an objective investigation and its knowledge that the complainant’s investigator-induced accusations had produced unreliable claims.
5Members of the X and Smith families testified that the complainants were not permitted on each other’s property unless the parents were home. (T.150, 299,527,937,938,1137)
6The photograph of X3 and Ryan smiling taken by Mrs. Smith that day was admitted at trial as Defendant’s Exhibit 102.
7Foster knew that these methods had been proven to corrupt children’s reporting ability and subsequent testimony. She used them anyway to produce accusations against Ryan. (T. 930)
8Long before the production of accusations in this case the very tactics used by Foster and the other adults to produce accusations had been condemned by a tremendous amount of uncontroverted scientific research because those methods cause children to report as true events they have never experienced. (See, Formal Petition for Post Conviction Relief, Ex. D (amicus brief), on file with the Court.)
!X4 claimed Ryan tried to put rocks into X4’S’s rectum on the patio while X5, X8, X7 and X6 were there and helped him up afterwards. (T. 595, 761) X6 never saw that occur. (T. 320) X5, X8, and X7 never reported having seen that.
!X4 claimed X5, X7 and X6 saw Ryan touching X4’s bottom with his penis. (T. 587) X6 never saw that. (T. 320) X7 and X7 never reported seeing that.
!X4 claimed that when Ryan walked to school with X4, X9, X8 and X5, Ryan exposed his penis to the complainants. (T. 589) The other complainants never saw that.
!X9 claimed all the kids were on the patio when Ryan touched her bottom and vagina with his hand. (T. 232) None of the other complainants confirmed this.
!X9 claimed all the complainants were on the FAMILY X patio when Ryan took of his shirt and pants, took off X9’s clothes, touched her vagina, and made “white stuff” come out of his penis. (T. 233-235) None of the other complainants saw this.
!X9 claimed X3 watched as Ryan drugged her with pink medicine which made her dizzy and sick. (T. 248, 302) X3 saw no such thing.
!X9 claimed X6 and X5 were on the FAMILY X patio taking pictures while Ryan showed her his penis and put it inside her. (T. 271-272) X6 and X5 did not corroborate that.
!X6 claimed X10, X9, X4, and X7 were on the patio when Ryan tried to put his penis in X6’s mouth. (T. 312) The other complainants could not corroborate this claim.
!X6 claimed X9, X10, X8 , X3, and the others were on the patio when Ryan pulled on X6’s penis for ten minutes. (T. 315) X5, X8, X3, and X7 could not corroborate this claim. X9 and X10 claimed to have seen Ryan touch X6’s penis, but not in that circumstance. (T. 242, 555-556) X4 did not corroborate this claim, however, Mrs. X said that X4 told her Ryan Smith fondled X6. (App. 2)
!X5 claimed that as Ryan anally raped him in the school public bathroom, another boy – Michael Ericson – came into the bathroom. (T. 337) The state conceded that Michael Ericson did not corroborate that claim. (T. 654)
!X7 claimed X10 and X4 were there when Ryan put his penis in X7’s mouth in the FAMILY X yard. (T. 564, 570-571) X10 and X4 could not corroborate that claim.
!X4 claimed Ryan made X7 lie down and then urinated on him. (T. 762) X7 never made that accusation.
!X4 claimed that in the FAMILY X yard, Ryan pulled down X6’s pants and put his penis in X6’s bottom and punched X6. (T. 762) X6 never made these accusations.
!X9 testified Ryan and X7 had no pants on when Ryan went to the bathroom on X7’s head. (T. 240) X7 never made that accusation.
!X9 claimed Ryan went to the bathroom on X6’s head on the patio. (T. 240) X6 never made that accusation.
!X9 claimed Ryan touched X6’s bottom with his hand and penis. (T. 241) X6 never made that accusation.
!X6 claimed Ryan spanked X8. (T. 321) X8 never made that accusation.
!X6 testified he and X8 watched Ryan spank X4 over his clothes. (T. 320) X4 never made that accusation and X8 could not corroborate X6’s claim.
!X5 claimed Ryan put his bare bottom in X7t’s face. (T. 757) X7 never made that accusation.
!X10 claimed that on the FAMILY X patio, Ryan touched his own penis to X8’s and kicked his bottom. (T. 555, 772) X8 never made either of those accusations.
!X10 claimed Ryan spanked X7, kicked him, and kicked his penis. (T. 772) X7 never made these accusations.
!X10 claimed Ryan touched his penis to X6’s. (T. 555, 556) X6 never made that accusation.
!X10 claimed Ryan kicked X5’s bottom. (T. 772) X5 never made that accusation.
!X7 claimed Ryan put his penis in X10’s mouth. (T. 766) X10 never made that accusation.
!X7 claimed Ryan put his penis in X4s mouth. (T. 766) X4 never made that claim.
!X7 claimed Ryan Smith urinated on X6 (FAMILY X Report #1 App.3)X6 never made that accusation.
11See, Joyce Adams, M.D. affidavit (Original Formal Petition for Post Conviction Relief, Ex. B, ¶¶ 22-41).
12Child Protective Services investigated the charges and concluded that the allegations were unfounded. (T. 1048, 1049, 1058)
13The trial court sustained a state objection to defense questions about X3’s violent behavior. Thus, the defense was unable to impeach Mrs. X3’s patently false claim that X3 was a “sweet and gentle boy” who had never assaulted her (T. 160) or from revealing critical deficiencies in her memory – the accuracy of which the court commended as a basis for its verdict at the end of the trial.
14At trial, Mrs. X testified that X3 was “a sweet and gentle boy.” (T. 158)
15Despite X10’s leg brace and its accompanying physical difficulties, accusations elicited from her at one time or another included some that involved Ryan taking of her braces and pants, raping her, and dressing her in remarkably brief periods of time. (e.g.,T.237,343,548, 551)
16Michael Ericson denied witnessing this incident. (T. 654)
17Not a single teacher or any other school personnel noticed anything wrong with X5 on either day.
18Mrs. X conceded X’s account, testifying that during the time the accusations against the former foster mothers were elicited, she questioned him numerous times for 10-15 minutes at a time. (T. 1326)
19Even when faced with a quote from her in the hospital admission form in which she denied the accusations, Mrs. X would not acknowledge that X3 made that report or that she was asked about it. (T. 174-175)