Sex-abuse conviction thrown out

Richmond case evidence was fabricated, court says

Kentucky.com, Kentucky, USA: 20 November 2004

FRANKFORT - A molestation case that sparked outrage by Richmond parents took a stunning turn yesterday when an appeals court threw out the conviction of a church day-care worker because police made up evidence.

In clearing Joey Dean Herndon, Kentucky's Court of Appeals heaped criticism on Richmond police Detective Ellen Alexander for building a case "on a foundation of incompetent, unreliable and even manufactured evidence."

"The investigation was supported or carried out with outright lies," Judge Wilfrid A. Schroder said. "Children were told what to say. Even though the investigation found no corroborative evidence of abuse, the matter was taken to trial where the investigating detective continued lying to mislead the jury."

Herndon was convicted in 2000 of sexually abusing a young boy who attended Lighthouse Child Care Center in Richmond and sentenced him to five years, though he was released on bond pending his appeal.

A Clark Circuit Court jury had convicted Herndon on the felony charge, along with four charges of misdemeanor non-sexual abuse of children in his care at the church-run center. The jury had acquitted Herndon on seven other felony charges.

Originally, Herndon, who was 31 at the time of the convictions, had faced 15 felony counts of abusing children, including charges of rape and sodomy against children as young as a year old. But by the time the jury got the case, several defense motions had been granted to dismiss charges, reducing the number of felony counts to eight.

The three-judge Court of Appeals panel said the case was investigated amid a backdrop of "outrage and hysteria," including protests by angry parents outside the jail where Herndon was held.

Herndon was convicted despite the lack of physical evidence or eyewitnesses. Instead, the case was built entirely on interviews with children and their parents.

Schroder said that instead of looking at the evidence to see whether a crime was committed, the detective worked backward, concluding there were sex crimes and launching an investigation seeking evidence - even fabricated - to prove her conclusion.

"To say the evidence was weak requires a leap of faith that there was any evidence of sex abuse at all," Schroder said. "It is actually alarming to this court that an individual could be indicted, much less tried, on the facts and shenanigans in this case."

Herndon's lawyer said his client - who steadfastly maintained his innocence - would be very pleased with the ruling.

"It's a good lesson for everyone, really, that sometimes we can make the wrong assumptions," said attorney Burl McCoy, who took over the case on appeal.

The day-care center was set up as a ministry of the United Apostolic Lighthouse Church and catered to underprivileged children. The state eventually revoked its license.

Richmond Police Chief Bob Stephens said Alexander left the city force before his arrival and he has made big changes since he took over nearly a year ago.

"We have a very competent detective section now and a very competent child abuse investigator," Stephens said.

Attempts to locate Alexander were unsuccessful.

Schroder said that Alexander took items from an office at the center and purported that a young boy claimed to have seen them in Herndon's apartment, which was in the same building.

However, a videotape of the police search showed the items actually were taken from the office, not from the apartment.

The appeals court said the trial court erred by refusing to give the defense a continuance when the prosecution sprung a new piece of evidence on the day the trial began - a necklace that Alexander claimed to have found in Herndon's bedroom. The young boy testified he wore the necklace the day he allegedly was abused, and that he might have lost the necklace in Herndon's apartment.

However, hairs found on the necklace appeared to be from a black person, the appeals court noted. The young accuser is white. The trial judge refused to allow a delay so the hairs could be analyzed.

The appeals court also agreed with Herndon's lawyers that the young boy, who was 7 when he testified at trial and had not attended the day-care center for two years, was not a competent witness.

During the 2000 trial, the jury heard from three boys and one girl who said Herndon put them in a restraining hold or touched their genitals.

Defense attorney William Johnson questioned the children and their parents about unruly behavior that required discipline from day-care staff members and about contradictions in the children's stories.

An 8-year-old girl testified that Herndon had touched her between the legs while she was on the center's playground. Johnson responded by questioning whether the girl had been coached to make that allegation. She answered "yes" but couldn't remember who had told her.

Herndon took the stand in his own defense, denying charges that he abused children under his care and insisting that he never raped any children, sodomized them or otherwise mistreated them.

Since his conviction, Herndon, a professed "born-again Christian," moved to Lexington and got married. McCoy said his client holds "no malice" toward the prosecutor, the police or his young accusers.

"I think that he can pick up the pieces," McCoy said. "I don't think he is ruined. He is a very forgiving person. So I think with his faith and with his attitude, he'll do fine."

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