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Sunday, February 25, 2001
By LAURENCE HAMMACK
He is wearing a burgundy jumpsuit and shackles. One hand is chained to his waist. The other cradles a telephone handset. He glances around the tiny room, then stares angrily through a window of half-inch thick plastic. "If this is called justice," he says, "I'd hate to see injustice." Aleck J. Carpitcher may very well have seen injustice already. Carpitcher is serving 38 years for sexual abuse - a crime his accuser now says never happened. The daughter of Carpitcher's girlfriend says she fabricated a story of child molestation to the Roanoke County jury that convicted him in 1999. A jealous 10-year-old at the time, she says she was angry because Carpitcher was spending too much time with her mother. She just wanted the live-in boyfriend out of the house. She didn't realize her words alone would put a 44-year-old man in a super-maximum security prison for what amounts to a life sentence. "I was just mad, I guess, because it seemed like I never spent any time with my mom," the girl said during a recent interview. "I didn't know that all that was going to happen." The girl's statement that Carpitcher never molested her is the truth, according to a polygraph examination conducted last July. Lie detector results are not admissible in court. But the mere fact the girl has changed her story undermines her credibility. Although the prosecutor believes the girl testified truthfully and has since been pressured to recant, he said that if a new trial were granted, he would not pursue the charges a second time. "The evidence is now tainted," Roanoke County Assistant Commonwealth's Attorney Rick Buchanan said. "Whether I believe the child or not, her earlier testimony is tainted forever." Buchanan knows the girl recanted but has not spoken to her. It would do no good, he said, because of Virginia's 21-day rule - a much-criticized legal rule that prohibits new evidence from being considered 21 days after a defendant is sentenced. "Is she lying now or was she lying then? I don't know," Buchanan said. "But there's nothing this office can do at this point." With one exception, there is nothing anyone can do. Because the girl's recantation came after the 21-day limit, no judge, jury or appellate court is allowed to consider the new evidence. Only the governor can intervene by granting a pardon. Such moves are rare, and usually come only after lengthy investigations. Meanwhile, Carpitcher remains imprisoned based on what the alleged victim now says was perjury. She was the state's entire case, the only witness to testify in a prosecution that took just 35 minutes to present. There was no physical evidence of sexual abuse. No corroborating testimony from witnesses. No indication that the girl had emotional problems often associated with child abuse. No confession from Carpitcher. In fact, Carpitcher had an alibi for one of the charges. Two witnesses testified he was with them in Tennessee during one of times the girl said he was molesting her at their Roanoke County home. "I think he's innocent," said Jay Newberry, a probation officer who researched the case in preparing a presentence report. Newberry retired last summer after 25 years of dealing with criminals every day. "You get a lot of people telling you they're innocent," he said. "In all those years, this is the one and only time I have ever felt this way." Child vs. ex-con On June 30, 1999, a timid 11-year-girl was called to the witness stand in Roanoke County Circuit Court. She kept her head bowed at first, and spoke so softly the court's microphones could not record her voice. She smiled demurely when the judge asked her to speak up. Across the courtroom, Aleck Carpitcher sat at the defense table, exuding anger. A large man, he reared back in his chair with his arms folded across his chest, scowling at times at the evidence he was hearing. Carpitcher, who is American Indian, had his long black hair pulled back in a ponytail that reached to the small of his back. The jury would soon learn that he was active in the American Indian Movement, often participating in marches and protests. And, the jury would be told, he was a felon, having been convicted in Oklahoma of shooting with intent to kill in 1977 and illegally possessing a gun five years later. In the credibility contest that was about to begin, Carpitcher was at a distinct disadvantage. "Who are you going to believe, him or this innocent-looking little . . . girl?," Newberry said. The first red flag The more he learned about the case, the more suspicious Newberry became. One thing that bothered him was the girl's story. It was always exactly the same, even though she gave several statements to police and social workers and testified twice, once at a preliminary hearing and again before the jury. "Virtually not a word changed," Newberry said. "That threw up a red flag right there." Isaac Van Patten, a criminal justice professor at Radford University who teaches a course on child molesters at the FBI Academy, agreed that repeated verbatim accounts can be a sign of fabrication. "A truthful allegation will often become a little bit jumbled each time the child recounts the event," said Van Patten, former director of the Roanoke Area Sex Offenders Program. Because the girl was unable to remember exact dates, Carpitcher was charged with committing the crimes over monthlong time periods, from between Jan. 1 and May 31, 1998. Carpitcher was often out of town, attending Indian marches and protests. But the broad time frames made it difficult to come up with an alibi, defense attorney Scott Gardner said. The girl associated the three most serious offenses - animate object penetration - with Valentine's Day, Saint Patrick's Day and her birthday. She remembered the approximate dates Carpitcher fondled her, the girl testified, because each time she was wearing new clothes given to her for the holidays. On each of those occasions, she said, Carpitcher molested her as they watched television in her mother's bedroom. During at least one of the offenses, she said, the door was halfway open and her mother was in the adjoining room. The girl also testified that on numerous occasions between Jan. 1 and May 31, Carpitcher grabbed her clothed buttocks and groin as she walked past the television. That was the basis of an aggravated sexual battery charge. A final conviction, for taking indecent liberties with a juvenile, was based on the girl's testimony that Carpitcher propositioned her after she came across him urinating outside the house. Carpitcher denied all the allegations, as he did from the start. Two witnesses testified that on the approximate date of the March incident, he was with them in Nashville, Tenn., participating in a protest of Wal-Mart's plans to build a new store on an Indian burial ground. Although she first said the abuse happened around Saint Patrick's Day, the girl later said it could have been one or two weeks later. She was vague enough on the details to make it hard to contradict her, Gardner said. Besides, he said, "you don't want to go and beat up on an 11-year-old in front of the jury." After deliberating 2 1/2 hours, the jury convicted Carpitcher of five felonies. It recommended a sentence of 73 years. When it came time for Carpitcher to be sentenced two months later, it seemed that Newberry was not the only person troubled by the case. In an unusual move, then-Circuit Judge Roy Willett reduced the jury's sentence by nearly half, to 38 years. Even though it would be months before the girl recanted, the judge seemed to have some qualms. "That's the best I can do under the circumstances," Willett told the defendant, sounding almost apologetic. "I want you to appeal," he said, "and I'm going to get you a good lawyer to appeal." New evidence not allowed During the three-hour drive to Richmond the morning of last Oct. 18, Tom Wray rehearsed in his head the arguments he would soon be making to the Virginia Supreme Court. Wray, a Roanoke attorney appointed to handle Carpitcher's appeal, planned to talk about the girl's "inherently incredible" testimony. He would argue how unlikely it would be for someone to molest a child with her mother in the next room. He would talk about Carpitcher's alibi . . . the lack of medical evidence that the girl was assaulted . . . the equal lack of emotional harm to her . . . and the child's admitted anger at Carpitcher, which he said was her motive to lie. But Wray's best argument was the one he was not allowed to make. By then, everyone involved in the case knew the girl had taken back her testimony half a year earlier and passed a polygraph test. Everyone, that is, except the three Supreme Court justices who heard Wray's argument and denied the appeal. The 21-day rule kept them in the dark. Hopes for freedom fade Now that Carpitcher has exhausted his direct appeals, the prospect of spending the rest of his life in prison is greater than ever. He could file a habeas corpus petition, which is limited to raising constitutional claims such as poor legal representation or the withholding of exculpatory evidence by prosecutors. No such violations are apparent. If that fails, his last chance would be a petition asking Gov. Jim Gilmore for a pardon. Carpitcher no longer has the services of Wray and Gardner, two attorneys appointed to his case because he could not afford legal representation on his salary as a country club groundskeeper. An attorney with the Innocence Project, a group of lawyers who take cases of possible wrongful convictions, said earlier this month that she is considering representing Carpitcher for free. Whatever happens next, it is likely to center on the victim's disputed testimony. Despite the polygraph test and lack of corroborating evidence, Buchanan is not convinced his prosecution put an innocent man in prison. As a father, Buchanan found the girl's testimony believable. How could an 11-year-old make up a story with such graphic anatomical detail, he asked? "This is not a case where I have an overwhelming feeling that an injustice was done. Do I feel unsettled by the uncertainty of it? Yes, I do. But I'm not convinced the jury reached the wrong verdict in this case, based upon the evidence." Recanted testimony in such cases is not uncommon, he said. Buchanan noted that the girl's mother - who along with her daughter is not being identified because of the nature of the charges - remained loyal to Carpitcher from the time her daughter first made the allegations. He suspects the girl's new story is the result of pressure from her mother, combined with feelings of guilt that Carpitcher received such a long sentence based on her testimony. "She's under a whole lot more pressure now to change her story than she was to lie at the time," Buchanan said. A household divided There is no doubt that the case of Commonwealth vs. Carpitcher threatened to tear a mother and daughter apart. Nor is there much question that when the girl finally recanted, it was at the urging of her mother. In March 2000, they were having one of many arguments about the case. "I told her that I was sick and tired of her lies, that if she didn't tell the truth about Aleck, she could pack up her bags and go to see her father," the mother said. "She looked at me and said: 'I lied. . . . Aleck didn't do anything.' " "I said, 'Thank God for telling me the truth, finally.' " Four months later, the mother drove her daughter across town to be polygraphed. "I felt emphatically that she was being truthful in stating that her testimony in court about Mr. Carpitcher was false," said Jeffrey McCorkindale, a polygraph examiner who conducted the test. McCorkindale, a licensed polygraph examiner since 1973, said his tests are accurate at least 92.8 percent of the time, the industry average cited by the American Polygraph Association. The tests are not foolproof, however, and usually are not allowed as evidence in court. But police use them regularly as an investigative tool. Virginia once relied on a polygraph to test a death row inmate who claimed he was innocent. The man flunked the test and was executed hours later. After McCorkindale tested the girl, word of the results eventually reached Willett. Last month, he wrote a letter to the attorneys involved in the case. "As I hope each of you knows and believes, I thoroughly reviewed this file to determine if there was any lawful, appropriate action that the trial court could or should now take; I concluded absolutely that there is not." The judge also noted: "The child in question is not the first victim who has changed or recanted testimony." The girl insists now that she is not lying just to please her mother. "I guess I just felt bad about it all," she said when asked why she recanted. A licensed professional counselor who until recently had been treating the girl said that during therapy sessions, she gave the girl many opportunities to "save face" and say that she was abused after all. "There's no way I can tell you what's true or not true." the counselor said. "All I can tell you is that she has been very consistent over time, saying that it didn't happen." Based on what she knows about the girl, the counselor said she finds it plausible that the initial allegations were false. If the girl lied on the witness stand, the trauma of putting an innocent man in prison could be worse than the emotional fallout she would have suffered as a victim of sexual abuse. "Because how do you deal with that kind of guilt?" the counselor said. "How do you live with yourself? And how does she live with her mother?" 'Listening to lies' On the day he was sentenced to 38 years in prison, Carpitcher was asked if he had anything more to say. "I've been sitting here all this time, listening to lies," he testified. He then pointed to three men - Gardner, Buchanan and Clay Sturgill, the detective who investigated his case who has since died. "I wish there was a law," Carpitcher said, under which all three men could be placed in the same prison with him, with the agreement that everyone would walk free the moment Carpitcher confessed. "That day would be a long time coming," he said. "We would be there forever." The 19 months that have since passed have not weakened Carpitcher's resolve. "Right here is what counts," he said, thumping a finger to his chest. "I know I'm not guilty. No one can ever make me hold my head down in shame and say I'm guilty." A few minutes later, a guard announced that time had run out on the hourlong interview. Still in chains, Carpitcher was led away from the visiting area, near the front gate of the prison - the closest he has come to freedom. The door slammed shut behind him. THE 21-DAY RULE Virginia Supreme Court Rule 1:1 is intended to prevent legal matters from dragging on indefinitely. It simply states that a judge loses the power to modify, vacate or suspend a court order in any case once 21 days have passed from a final judgement. The General Assembly has passed a bill revising the rule, but it is limited to convicted felons who say they can prove their innocence with DNA evidence that was not available at the time of their trial. Inmates who were convicted based on testimony that has since been recanted or otherwise discredited, and those who were the victims of police or prosecutorial misconduct, would not be allowed to challenge their convictions under the new legislation
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