August 30, 2014

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Kids’ behavior on video unlike trial description

This story originally ran Sept. 21, 1997.

Paul Facinelli and Pam Plas, The Chronicle-Telegram

William Oliver adapted quickly to the routine of a police lineup.

The tousle-haired 5-year-old, called to the Lorain Police Department for a lineup in 1993, was in a viewing room
only a short time when he picked up an in-house phone and began to mimic commands that the lead detective was giving
an officer on the other side of the two-way mirror.

“Number 5, will you please step up?” William said into his phone. “Take your shirt off. Step back, Number 5.” — William’s behavior, as well as that of six other children called to the station in the Head Start child molestation investigation, contrasted sharply with descriptions of their behavior from the trial.

William Oliver’s mother testified that her son started crying and ran from the lineup room. Jonathan Rosenbaum, who prosecuted the case, told the jury in his opening statement that although some children picked out defendant Joseph Allen, “other kids will look” at Allen and “panic.”

The videotape, however, showed that many of the children who failed to pick Allen smiled, pointed and chatted with their parents as they looked at the five men before them. The tape did riot show William Oliver crying or leaving.

William nodded when an officer asked him, afterward, whether he had been afraid, and another child told her mother that she was shaking.

None of the five other children spoke of fear.

The Chronicle-Telegram obtained the videotape through a public records request filed last month.

Five of the seven children could not identify Allen in their first opportunities. One of the five finally succeeded, but only with her mother’s help. Nevertheless, at trial, some nine months later, all the children called to testify, including three who could not identify him in the lineup, pointed to Allen. The jury never saw the videotape.

The prosecution listed the Videotape among its list of witriesses, but did not include it among the evidence it found that might have been favorable to the defendants. Rules of professional conduct require that the prosecution share helpful information with the defense.

“Because most of the children did not pick Joseph Allen out of the lineup, it was not used at the trial in the traditional sense,” the Lorain County prosecutor’s office said in a written but unsigned statement to The Chronicle.

“Traditionally, lineups generate incriminating evidence because victims are able to identify their assailant. They did not
identify Joseph Allen, as the state argued, because of the fear he placed in the victims.”

What tape also showed

The tape also showed that children who failed to identify Allen were given multiple opportunities to change their minds.

William Oliver had the most chances. (The child was not alleged to have been molested. He was a “linkage” witness,
called to establish a connection between Allen and co-defendant Nancy Smith. William testified that Allen grabbed his arm near Smith’s Head Start school bus.)

At the lineup, William was given 12 opportunities — in three separate lineups — to identify Allen. He failed each time.

During the first lineup, Allen was in the Number 2 position among five men. When William returned for his second lineup,
Allen was in the Number 4 position.

On his first opportunity to identify “Joseph” this time, the boy chose the man hi the Number 2 position.

Lorain Police Chief Cel Rivera, captain of the plainclothes division at the time and in charge of the lineup, then leaned over and said to the boy, “That’s where he was before, huh? I want you to take a good look at them, because we’ve changed everybody around. Look at each of their faces.”

Rivera refused numerous requests to be interviewed for this story.

The videotape also shows that William’s mother, Emily, was with her son in the viewing room part of the time.

During the trial, Rosenbaum questioned her about what she observed. She testified that on several occasions William picked every person in the lineup but Allen.

A police report on the lineup does not support her testimony. The report states that William not only failed to choose Allen in his 12 chances, he also failed to pick out, on any occasion, one other lineup participant.

In addition, Emily Oliver testified that at one point during the lineup, when Allen was aked to step forward, her son
jumped back and said, “That’s not him.” Then, she told the court, the boy started crying and ran from the room.

The videotape does not confirm her testimony. The boy never cried and never ran from the room.

Other children

Six other children, all alleged to have been molestation victims, also participated in the lineup. Four of these children,
including the girl whose mother first brought the molestation charges against Smith and a man named “Joseph,” failed to identify Allen on their first opportunities.

When they missed, Rivera and the other principal investigators in the room asked the children to look at the men’s faces more closely. Or they asked the children whether they wanted the men to step forward, take off their shirts or say something.

The two children who identified Allen on their first tries, both boys, were not questioned further, beyond an “are you
sure?” or “you’re telling the truth, right?” They were not asked whether they wanted to pick again or see the men without
their shirts or hear them talk.

The girl whose mother first brought the charges, after identifying others in the lineup in the numerous chances she was
given, eventually identified Allen.

Detectives coaxed and prodded her.

At one point, for example, the 4-year-old girl pointed and Rivera asked her what color shirt the man she was pointing
at was wearing. The child’s response was not clear. Rivera asked, “Plaid?” Allen was wearing a green plaid shirt.

The child repeated her response. She said “black.” She then identified the man in the Number 3 position who was
wearing a black shirt.

Her mother also assisted her, without cautions or reprimands from Rivera or any other officer in the room.

For example, the girl’s successful attempt to identify Allen began with her choice of the man in the black shirt. Rivera then
asked if there was anyone else she wanted to get a closer look at. Her mother said, “Number 2,” Allen’s position.

Allen stepped forward and back and the girl identified him.

Photo lineup

A few days before the live lineup, 10 children suspected of being victims in the case were given photo lineups by Detective
Joel Miller, according to police reports. Nine of the 10 failed to identify Allen, including all of the boys.

The Chronicle, in a fax, asked Miller whether the two boys who identified Allen at the live lineup were given photo lineups as well.

Lorain police Lt. Robert Poli said the department would not answer those questions because public disclosure laws do not
require the police to release that information.

Poli added that the department “would appreciate no further calls in regards to this case.”

If the two boys who identified Allen in the live lineup were given photo lineups as well, it would mean that the five children
who testified against Allen and Smith at trial either failed to identify Allen on their first opportunities — either photo or
live — or failed to identify him altogether.

When The Chronicle was preparing a multipart series on the Smith-Allen case last year, a reporter asked Rivera what he
would do if five adults had failed to identify a suspect.

“We’d kick the case,” Rivera said, at least as it applied to those adults who missed.