Sunday, January 13, 2002

Convicted molester's appeal not so simple

By LAURENCE HAMMACK
THE ROANOKE TIMES

The truth will set you free, it's said. But the lies of a child might be the only hope for Aleck J. Carpitcher.

Carpitcher, a Roanoke County man serving 38 years in prison for molesting a young girl, claims the truth in his case didn't come out until nine months after his trial - when the 11-year-old said she'd made up her testimony against him.

But Carpitcher is not allowed to cite the girl's recantation in his pursuit of freedom. Under Virginia's so-called "21-day rule," newly discovered evidence of innocence can be presented in court only if it comes to light within three weeks of a case's end.

The rule has forced Carpitcher to base his petition for a new trial on a much more complicated set of facts.

In deciding whether Carpitcher's constitutional right to a fair trial was violated, a judge must consider the following questions: In accusing Carpitcher of molesting her, did the girl give inconsistent statements? If so, did prosecutors fail to turn them over to the defense, which might have used the discrepancies to impeach the girl's testimony? If so, would the withheld evidence have affected the outcome of Carpitcher's trial?

It is, in effect, an attempt to use lies to get to the truth.

Even if Carpitcher is innocent, as his attorneys claim in a habeas corpus petition filed Jan. 3 in Roanoke County Circuit Court, his case has already been clouded by conflicting facts that go beyond the girl's latest change of story.

Rick Buchanan, the assistant commonwealth's attorney who prosecuted Carpitcher, says the girl never made any inconsistent statements - at least not until she recanted, when it was too late to help Carpitcher.

"There was nothing that had changed enough to say it looked like she was not telling the truth," Buchanan said. "Had there been any changes, I would have turned that over."

Lawyers for the Innocence Project, which has taken up Carpitcher's case, believe otherwise. They say the girl's story changed repeatedly, evolving from a single allegation that Carpitcher grabbed her clothed buttocks to multiple claims of digital penetration.

The issue is likely to play a key role in Carpitcher's bid for a new trial, said Roger Groot, a law professor at Washington and Lee University.

Buchanan believes the girl testified truthfully that Carpitcher, her mother's boyfriend, molested her repeatedly over a six-month period in 1998 in the house they all shared. The prosecutor suspects that the girl recanted under pressure from her mother and others loyal to Carpitcher.

However, Buchanan has said he would not try the case again if Carpitcher is freed. The girl obviously lied about the incident at some point, he said, and that would be enough to taint her future testimony.

In an affidavit filed with Carpitcher's habeas petition, the girl said she falsely accused Carpitcher of abusing her so he would have to leave the home. The girl, who is not being identified because authorities still consider her the victim of a sex crime, said she was upset that her mother was spending too much time with Carpitcher in a relationship marred by drinking and arguments.

The girl threatened to leave home and live with her father unless her mother broke up with Carpitcher. When her mother refused, "I felt that she had chosen Aleck over me," the girl said in the affidavit. "I was devastated, and became increasingly resentful of the time and attention my mother spent with Aleck."

The affidavit goes on to say that the girl was inspired by a fourth-grade class on sexual abuse and decided to force Aleck out of the house with a story of sexual abuse. "I did not know that he would get in so much trouble or that he would have to spend the rest of his life in prison," she said.

A jury convicted Carpitcher, 45, in June 1999. The girl recanted the following March.

The girl has passed a lie detector test arranged by her mother, but polygraph results are not admissible in court.

Buchanan said that since he became aware of the girl's recantation, neither he nor the police have attempted to interview her or reopen the investigation. There is nothing his office can do because of the 21-day rule, he said.

The prosecutor referred most questions about the case to the Virginia attorney general's office, which represents the state when criminal cases are appealed. A spokesman declined to comment last week, saying the office had not received a copy of the petition.

Last year, both the girl and her mother wrote to then-Gov. Jim Gilmore, asking him to intervene. Although the governor has the power to pardon an inmate, no formal request for clemency has been made in Carpitcher's case.

The governor's office never responded to the letters, according to Julia Sullivan, a Washington, D.C., attorney who heads the Innocence Project of the National Capital Region. The Innocence Project is a national network of attorneys who donate their time in an effort to free the wrongfully convicted.

Once the attorney general's office gets involved, it could be months before Carpitcher's attorneys are allowed to see the heart of their case - copies of at least three tape-recorded statements the girl gave to police and social services workers in the months before Carpitcher's trial.

Alexandria attorney Christopher Amolsch, who is working with Sullivan, said prosecutors have refused to turn over the statements. Amolsch's belief that the girl made inconsistent statements is based on what she says now, combined with information in a sentencing report prepared by a probation officer.

If the statements prove to be consistent - as Buchanan says they are - Carpitcher could be left "between a rock and a hard place," said Groot, the W&L law professor.

Although the habeas petition is based on four arguments, Groot said the claim that prosecutors withheld exculpatory evidence appears to be the most compelling. The petition also asserts that Carpitcher's lawyer was ineffective, a claim that is often made but seldom proven.

The final two claims in the petition involve actual innocence. Technically, evidence supporting that claim - the girl's recantation - is barred by the 21-day rule. But lawyers who file habeas petitions often include a claim of actual innocence, Groot said, in hopes that it will influence the judge's view of other issues that can be presented.

"Certainly, the conventional wisdom among lawyers is that the stronger a case you can make of actual innocence, the more likely it is you will win on some other claim," Groot said.

There seems to be no question that if the girl gave substantially different versions of what Carpitcher did to her, that information should have been turned over to his lawyers. Likewise, Groot said, it seems clear that the statements would be material - that is, they could have affected the trial's outcome had the defense been able to use them.

It's possible that even if the jurors had been told of the inconsistent statements, they could still have believed the girl and convicted Carpitcher.

But that's unlikely, Amolsch argues in the petition, because there was no other evidence to corroborate the girl's testimony.

There was no medical evidence that she was abused. No DNA or other physical evidence linking Carpitcher to the crime. No evidence that the girl suffered psychological problems often associated with child molestation. No confession from Carpitcher.

"The prosecution's case rests solely on the credibility" of the girl, the petition states.

According to Carpitcher's lawyers, the girl's pretrial statements will show more than just variations in her story.

"The tape recordings withheld by the prosecution are critically important because, among other things, they will show to what extent [the girl] was influenced by repeated, suggestive, leading and biased interview techniques" by police and prosecutors, the petition states.

In her affidavit, the girl says that "lots of different people asked me questions about my story and I tried to remember all the lies as best I could. Every time I talked to someone new, the story seemed to get more complicated."

Buchanan said he spoke to the girl twice before the trial, and that her story remained the same.

"I gave her a chance to say 'No, it didn't happen like that' . . . and she went through it exactly the same," he said.

"Although it was not my job to believe her, I did."

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