An Innocent Man: Scott Molen's Bittersweet Victory

 

"My Angel": Scott Molen with his wife Connie (right) before his legal ordeal.

“I’m trying not to hate, but rather to enjoy the beauty we can see in life,” observes Scott Molen. That worthy sentiment is all the more remarkable coming from someone whose life has been permanently disfigured by the State’s proprietary brand of ugliness.

In June 2007, Scott was convicted in Ada County, Idaho of “lewd and lascivious conduct” with his step-granddaughter and sentenced to 20 years in prison. The case presented against Scott consisted of the uncorroborated, self-contradictory testimony of the young accuser. The prosecution quite thoughtfully kept their presentation otherwise uncluttered by evidence.

During voir dire, assistant prosecutor Josh Taylor explained to the jury that “you’ll hear testimony from a small child. There won’t be any DNA evidence or other types of evidence of that sort.” So zealous was the prosecution to avoid confusing the jury that they suppressed – until half-way through the trial -- the results of a detailed medical examination that found no physical symptoms of sexual assault. 

While austere in providing proof, the prosecution was very generous in defining the offense for which Scott was on trial. He was formally charged with sexual assault – in essence, the rape of a child – but the lead prosecutor, assistant Attorney General Justin D. Whatcott, was permitted by the trial judge to redefine the offense as “lewd and lascivious conduct,” which had a much lower threshold: Rather than physically violating the child, the defendant was accused of improperly “touching” her. This approach allowed the prosecution the luxury of barraging the jury with lurid claims it was not required to prove. 

The prosecution was well aware of the fact that it was riding a very weak case. 

Theresa Gardunia, the original prosecutor in the case, “told me I could plead guilty to one count of injury to a child, with one year in jail,” Scott recalled to me. “I was also promised that I wouldn’t be a registered sex offender. But I didn’t do what they accused me of doing. I would never do such a thing to a child. I had made a lot of mistakes, and I had been in trouble with the law. I didn’t try to hide it. But I was not going to volunteer to serve time for something I would never do.”

Most people convicted of crimes maintain their innocence. Few, however, can cite concurring testimony provided by the foreman of the jury that convicted them.

"When you boil the whole thing down and look at it," jury foreman Ken McKay admitted to a private investigator roughly a year after Scott was sent to prison, "there wasn't a single shred of evidence." Four members of the jury, McKay recalled, were “dug in” on behalf of Scott’s innocence. Several others “had decided that he was guilty pretty early on and there was really no reasoning with them about that.” 

An engineer by training – his professional credo was “In God we trust, everybody else bring your data,” the jury foreman told the investigator – McKay maintained that he had been skeptical about “fantastic charges” made by the prosecution. For instance, the jury was told that “there was a pair of [girl's] undergarments that had a blood stain in them.” His misgivings grew when that critical piece of evidence, although being prominently referred to in the prosecution’s case, was “never produced.” 

This was not an oversight, nor the product of mere incompetence. It was a “Brady violation” – deliberate prosecutorial misconduct intended to conceal exculpatory evidence. This much-discussed but never-seen piece of evidence was supposedly discovered at a time when the alleged victim was living with her mother and an abusive boyfriend in Phoenix, roughly 1,000 miles away from Scott. Furthermore, the mother claimed to have found it several months before she sent the girl back to visit the alleged molester a second time. 

Scott and Connie hosted the child during the summer of 2004 and 2005. They had become concerned about the dissolute and addictive behavior of the young girl’s mother, who shared her apartment with a succession of live-in boyfriends. In the interest of providing the girl with a stable, healthy environment, the grandparents expressed interest in adopting her. 

Shortly thereafter, the girl told some friends that her grandfather – Scott – had “kissed” her. This was described as “disclosure” of sexual abuse.

She was interrogated in a tape-recorded interview by Boise Police Officer Tammy Kennedy, who claimed that the girl recounted “multiple” assaults – including a dozen instances of “full intercourse.”

The tape recording made by Officer Kennedy was “lost.” She subsequently filed a detailed official report replete with vulgar descriptions of sexual acts that are not likely to have been offered by an eight-year-old girl. However, that report was not filed until after the child had been interviewed by Alisa Ortega, a nurse employed by the Child At Risk Evaluation Services (CARES) of St. Luke's Hospital in Boise. A second CARES nurse conducted an extensive, videotaped interrogation of the child.

As is frequently the case, that interview was not an examination, but rather an act of ventriloquism.

“There was a point ... [when] the CARES interviewer made a pretty critical mistake" in questioning the alleged victim, McKay pointed out. To be specific, the interviewer "actually put her words, used her own words to describe what the young woman was saying and from that point forward in the interview [the alleged victim] used the interviewer's words."

What this means is that there was no accuser: The investigator was telling a story, using the supposed victim as a prop. Testifying on behalf of Scott, forensic psychologist Philip Esplin criticized the CARES investigator for numerous violations of long-established interview protocols in child abuse cases. This was obvious, or should have been, to reasonably intelligent observers without specialized training.

“I remember watching [the recorded interview] and thinking, wow that's really, that's really incorrect," McKay told the detective. 

Prosecutor Justin Whatcott.

The timeline provided by prosecutors Justin D. Whatcott and Josh Taylor was also unable to withstand even modest scrutiny. The original narrative alleged that several episodes of molestation had taken place in a “trailer.” 

However, as McKay acknowledged, the defense was able to prove that the vehicle had been “crushed by snow” long before it could have been the scene of such hideous crimes.  Another alleged incident of abuse supposedly took place in the summer of 2004 in a house where Scott and Connie no longer lived. 

No physical evidence of assault rape was found during the initial physical examination of the child. The CARES nurse reported that the child's genitals appeared to display injuries "suggestive of blunt force penetrating trauma often seen in sexual abuse." That conclusion was dispelled by the results of a more detailed examination using a specialized instrument called a colposcope. Those findings were withheld by the prosecution, rather than being provided through discovery, as the law requires. The defense had to file a subpoena well into the trial in order to obtain the test results.

“I had no idea that there were photos of that examination,” prosecutor Whatcott told trial Judge George Carey on the penultimate day of the trial.During the previous day’s testimony, however, it was established that the photos had been subpoenaed “over a year ago.”

Testifying as a rebuttal witness for the defense, Dr. Edward Friedlander, chairman of the Department of Pathology at Kansas City University College of Osteopathic Medicine, said that the colposcopicimages revealed the anatomy of a child who was a "perfectly intact virgin," rather than one who had been hideously violated as many as a dozen times. 

When he arrived in Idaho to testify, Dr. Friedlander later recalled in a letter to Idaho Attorney General Lawrence Wadsen, “I was first told that the photos [from the colposcopic exam] were not available, which would have been a breach of the standard of care for a practitioner. Then they appeared during the trial. I was allowed to examine the photographs of the child’s `injuries’ only about an hour before I testified…. As soon as I saw them, it was clear to me that the examining nurse had misinterpreted the findings.”

Stick to the facts: Dr. Friedlander.

One of the “lesions” described in the prosecution’s report “was the edge of a simple mound,” Dr. Friedlander elaborated. “The other was a fold that could have been revealed as such with a proper exam (i.e. a bit of water on a Q-tip). Despite the [claim that] she had been fully penetrated ten or twelve times over the course of one year, she was a fully intact virgin. Surely a jury of grown-ups would realize the absurdity.”

 “I should have been allowed to review the findings beforehand,” Dr. Friedlander continued. “Defense would then have obtained the services of an expert pediatric gynecologist” to confirm his findings. Following Scott’s conviction, Dr. Stephen R. Guertin, a pediatric specialist from Michigan, reviewed the colposcopic exam and concluded that the “victim” displayed “a normal shaped hymen” without “notches, clefts, tears, lacerations, scars, distortions” or any other signs of sexual abuse. 

The Brady violation committed by the prosecution offered sufficient grounds for a mistrial. Scott’s attorney, Ron Christian, didn’t move for one, and given Judge Carey’s deference toward the prosecution it’s likely that one wouldn’t have been granted. Stolidly indifferent to prosecutorial misconduct, Judge Carey was also determined to prevent the defense from impeaching the State’s case by demonstrating that the young child had been immersed in a horrible environment by her mother.

Testifying on behalf of the defense, the child’s aunt recalled that the mother tried to induce her “to testify that Scott molested me at 13 years [of age],” a charge she described as entirely untrue. This made an impact on at least some of the jurors. Five family members had offered depositions stating that the child’s mother “had exposed [her] to graphic sexual conduct,” including “openly having sex with multiple partners” in the presence of the young girl, “openly discussing and showing sex toys and pornography in front of [her], and openly disrobing in front of family members” in her presence.”

Judge Carey ruled that this evidence – which would explain why an 8-year-old child could have precocious knowledge of sexual behavior – was inadmissible.

Despite the judge’s efforts to skew the proceedings in favor of the prosecutor, there was abundant reasonable doubt regarding the charges against Scott. In fact, there was no reasonable basis to believe in his guilt. 

After examining the evidence, such as it was, offered by the prosecution, McKay concluded, “I couldn't say the State made their case."

Four members of the panel were convinced of Scott’s innocence. All jurors have the moral obligation to compel the State to prove its case, and as foreman of the jury McKay should have stood fast in defense of that principle. Instead, he engaged in a bout of collectivist self-criticism worthy of a penitent Communist Party cadre during Mao’s Cultural Revolution:

"I remember ... we had gone I think several hours in deliberation and a few of us were dug in [on behalf of acquittal] and the guilty people were adamant that he was guilty ... I was thinking, well, man, eight other people say that he's guilty so where am I, what am I missing here?"

All that he was “missing” was the moral ballast – or the dangling anatomy – necessary to do what his academic training and civic duty required: Build a coalition for acquittal, or hang the jury. He not only voted to convict a man he knew to be innocent, he persuaded at least three other jurors to shout down their conscience and do likewise. Perhaps he and the others rationalized that the mess they were leaving would be cleaned up on appeal. 

This decision wasn’t the product of lengthy, agonized debate and contemplation. The jury delivered its verdict in about five hours. Its haste was, at least in part, the product of another familiar prosecution trick: The jury was sent to deliberate late on a Friday afternoon, with the unappetizing prospect of coming in on Saturday, or reconvening on the following Monday. It’s likely that at least some jurors thought that consigning an innocent man to prison was a less horrifying prospect than the possibility of an abbreviated weekend. 

From the time the accusations first surfaced in June 2005, Scott had never been arrested. After the verdict was delivered, he was immediately remanded to the custody of the Ada County Jail. Several months later he was sentenced to twenty years in prison. 

Happier times: Scott harvests a Christmas tree.

Connie Molen contacted me about Scott’s case in July 2009; I published a report on it about three weeks later. Like many other people in comparable predicaments, Connie became a tireless activist and advocate on behalf of wrongfully convicted Idaho residents. She disseminated the piece published in this space as widely as possible and networked with families who were seeking post-conviction relief. 

The legal expenses incurred by Scott and Connie eventually cost them their home. In July 2011, the ordeal cost Connie her life. 

During a visit with Scott at the Idaho Correctional Center (ICC), Connie suddenly “grabbed her chest and turned white,” he recalls. He yelled at the guards for help, and when none came, he started digging through Connie’s pockets in search of the aspirin she carried with her in case of a heart attack. That attracted the attention of a guard, who jerked Scott away from his dying wife. 

Scott was ordered out of the room. After what seemed like an eternity he was told that Connie had died. A nurse who had offered to render aid to the stricken woman was prevented from doing so. The prison didn't call 911 for over an hour -- and the Life Flight didn't arrive until three hours after the crisis had begun.

“The sergeant who performed CPR on her for over an hour came to me after I was told she had died and, in front of several inmates, told me to get someone to investigate what had [gone] on here,” Scott related in a letter to Mike Murad, a reporter for Boise’s CBS affiliate. Scott’s efforts to find out what had happened to his wife were deflected for several weeks. Finally he filed a grievance demanding protesting the prison’s refusal to provide the information, only to be told that he couldn’t file a grievance “as it had been over 30 days.” 

“I [lived] in Garden Valley and a Life Flight can get there in 15 minutes,” Scott pointed out in his letter to Murad. “I’ll tell you why Connie’s life was low priority to ICC staff, especially ICC medical. She had just exposed [the] ICC doctor and medical director on her website.”

“Connie was my angel,” Scott told me during our recent meeting, his eyes moistening and a melancholy smile tugging at the corners of his mouth. “I wasn’t a good person when I met her, and she understood that. She was patient with me – a saint. She helped me get over problems I had with substance abuse, taught me to take care of my health, and helped me learn what was truly important in life. She literally fought to the last breath for me.”

The same couldn’t be said for Scott’s trial attorney, Ron Christian, who – like too many trial attorneys – succumbed to alcoholism.

“Rather than meet and prepare with experts, interview critical witnesses, or follow up with unresolved motions … and unanswered subpoena duces tecums, Mr. Christian drank,” recounts the motion for post-conviction relief filed by Scott’s new attorney. “[Christian] never adequately investigated or prepared Mr. Molen’s case for trial.”

At the first trial setting, “Mr. Christian appeared for trial intoxicated and was unable to proceed,” continues the motion.  After being admitted for in-patient treatment, Christian eventually moved in with Scott and Connie. They took him to AA meetings but still found “empty bourbon and vodka bottles hidden in the bathroom and other cupboards of the house. During the trial he was more attentive to his drinking habits than to his duties in reviewing evidence and preparing witnesses.

The motion for post-conviction relief was stipulated to by the new prosecutor assigned to the case. At first impression this appears to be a species of miracle, given that the document contains a detailed and extensive discussion of Whatcott’s misconduct. However, the appellate judge confined his ruling to Christian’s ineffective representation, insisting that it wasn’t necessary to examine the prosecutor’s role in the travesty.

“He wouldn’t rule on the withheld evidence – there was too much potential liability,” Scott told me.  He has also been informed that a lawsuit against CARES and St. Luke’s Hospital isn’t possible because “the statute of limitations expired while I was in prison.”

Apart from the story told by – actually, told through – the accuser, no evidence was ever presented that Scott had committed an act of sexual abuse. The same cannot be said of the case against Julie McCormick, former head of security at the Idaho Department of Juvenile Corrections (IDJC), who sexually abused a 15-year-old boy who was an inmate under her supervision. 

 McCormick was assigned to her position despite having no academic or professional qualifications. She systematically exploited the vulnerable boy, who was on psychiatric medications. The facility’s management was aware of what was happening. Rather than intervening to protect the victim, the IDJC forced staff members who knew of the abuse to sign a confidentiality agreement, and then sought to have all of the relevant records sealed.

 

Following her guilty plea, McCormick was the recipient of exemplary punishment. That is to say, she was used as an example of the extravagant leniency the State bestows on offenders who have served its punitive apparatus. Like Scott, Ms. McCormick was sentenced to 20 years in prison. However, Judge Bradly S. Ford – the same Canyon County gavel-fondler who presided over the Soviet-grade drug possession trial of David Conner, as recently reported in this space – retained jurisdiction over McCormick’s case. After serving less than a year, she was released from prison and her sentence was revised to 10 years of supervised probation.  

 

Scott Molen, February 5, 2015.

Scott is deeply aware of the entrenched corruption of the system that stole seven years from his life. He is continuing to seek redress for the irrecoverable losses inflicted on him – but he is much more eager to enjoy the life that has been restored to him

Understandably anxious to stay out of Idaho, Scott is now living close to his father in a neighboring state. He also enjoys the splendid company of an irrepressibly friendly 18-month-old Red Nose Pitbull named Jax, who accompanied him during a brief visit to Payette. Although I had corresponded with Scott and spoken with him by telephone, until our lunch appointment on February 5  I hadn’t been able to meet him face to face: My application to visit him in prison was denied because I was designated a “security risk.” 

Scott displayed none of the bitterness to which he is entitled, and radiated genuine joy as he experienced the simple decencies he and been denied as a wrongfully convicted man. For all that the State and its agents have done to his family, Scott has not surrendered to hate – and that victory cannot be stolen from him.

(This essay has been updated to correct some details.)


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