SHOCKING BIAS AND DISREGARD FOR EVIDENCE IN CHILD ABUSE ALLEGATIONS

Just one example of many

All too many times in child custody proceedings, the events take a vicious turn when accusations suddenly materialize against the male—the husband, father or stepfather---an attempt by the mother to stack the deck to insure that she will be awarded custody, leaving the man’s life and that of his family in shambles, often unable to defend an unfounded, unsubstantiated he said/she said claim.....

The convoluted Livingston County case of Timothy Herington is one of many such troubling cases in today’s criminal justice system. With no physical evidence of incidents which had allegedly occurred some five years previous, with no witnesses and not even any police testimony, Herington was convicted in March, 2003, following jury trial of eight felony counts of sodomy in the second degree and is serving 9 1/3 to 28 years in state prison for allegedly abusing his stepdaughter when she was 11 years old.

Herington, 38, is a disabled veteran, having served with the U.S. Navy, receiving an honorable discharge in 1989. He received a disability pension which he supplemented with part-time employment. Prior to the accusations by his stepdaughter and now ex-wife, he had no previous criminal record.

Herington had married Dawn, the single parent of Krystle Barnes, in 1992 when Krystle was five years old. In 1994, Cullen was born and in 1996, Cheyenne was born. In September, 1997, there was an argument between the couple and when Krystle attempted to intervene, she was accidentally knocked to the ground and her elbow hit her half-sister in the eye giving her a black eye. As a result, Dawn Herington ejected her husband from the trailer. He relocated to Pennsylvania, returning about a year later to live with his parents. During his absence, he tried to make contact with his children but was refused by Dawn.

Nearly a year after Herington had left the household, in August, 1998, Krystle reportedly told a school friend that her stepfather had sexually abused her. She did not tell her mother about the allegations at that time.

On Sept. 28, 1998, he filed for sole custody of his children, Cullen, then four years old, and Cheyenne, then two, alleging that Dawn was abusing them and driving drunk with the children in the vehicle. On Oct. 15, 1998, she countersued for custody.

On the eve of the custody hearing, the ugly head of alleged false allegations first raised its head with Dawn allegedly threatening that if he didn’t “back off”, she would tell everyone that he had sexually abused her daughter. “Tell your f---ing son if he doesn’t thrown that-----doesn’t dismiss that custody proceeding, I’m going to accuse him of sexual abuse of my child”, Dawn Herington, now 40, allegedly screamed into the phone of her former mother-in-law on Dec. 10, 1998.

But the jury at Herington’s trial wasn’t allowed to hear testimony regarding that alleged phone call as the judge refused to allow Herington’s mother to testify, saying it was inadmissible hearsay.

In fact, a review of the court transcripts reveal that the prosecution, led by Livingston County District Attorney Thomas Moran, may have shifted the burden to the defense to prove Herington’s innocence and removed the constitutional guarantee that an accused is innocent until proven guilty beyond a reasonable doubt.

By Livingston County Court Judge Gerard Alonzo refusing to allow Herington’s mother and other defense witnesses to testify, he in essence refused to allow the jury to hear exculpatory evidence which could have and undoubtedly would have resulted in the acquittal of Herington. A review of the record indicates that not only did the judge allegedly abuse his discretion but allegedly denied Herington a fair trial.

Herington was convicted solely on the unsubstantiated testimony of his stepdaughter, Krystle Barnes, then 16, and that of a psychiatrist who testified solely about a highly controversial psychiatric theory he had read about but he had never interviewed the alleged victim and was unfamiliar with the case. There were no other prosecution witnesses and no proof that any abuse had ever occurred......

By March, 1999, the allegations of abuse had been investigated by both CPS and the Livingston County Sheriff’s Department. No charges were filed and joint custody was awarded. Later in 1999, after the couple had been divorced, Dawn filed a report against him for child abuse, alleging that he had shown pornographic movies to his son, then 5. The complaint was investigated and ruled unfounded.

He had visitation of the children until New Years Day, 2000 when she refused to let him see the children because he was allegedly behind on his child support payments. In February, 2000, he filed for visitation and eventually agreed to give up his veteran’s disability, signing his entire pension check over to her.

The visitation issue was resolved in June 2000 and continued until the middle of September, 2000 when Dawn then reported him for allegedly sexually abusing their four year old daughter, Cheyenne. She had continued to file complaints against him for failure to pay child support resulting in most of the actions being dismissed when it was determined he was up to date on payments. He and his family claimed she was filing the complaints as a means of harassment. In 2001 she was awarded full custody of the younger children.

In March, 2002, Krystle, then 15, during the ongoing investigation by State Police in Canandaigua involving the allegations of sex abuse of Cheyenne, said she would make full disclosure and testify against Herington, telling a significantly different and embellished story from that which she had told in 1998, supposedly what was now the “whole story” except that times, dates and the alleged occurrences were significantly different than prior statements she had given......

On the basis of the statement given by Krystle concerning incidents which were alleged to have occurred more than five years previous, in 1997 when she was 10 years old, Herington was indicted by a Grand Jury

During the June, 2002, arraignment before Nunda town justice James Mann, the judge stated that the complaint contained no alleged date of incident, an omission which would render the complaint legally insufficient. According to court records, the State Police indicated that “we don’t have a date, just the spring of 1997”

The justice allegedly took it upon himself to alter the sworn statement of Barnes, entering May, 1997, “just to have a date”, an act which is questionably legal. However, Herington’s counsel did not challenge the town justice’s alteration of the accusatory instrument. That’s because Herington wasn’t represented by counsel at the arraignment.

Several days later a preliminary hearing was held and Mann determined that there was sufficient evidence for the matter to proceed to county court.

Although the Livingston County district attorney’s office presented the matter to the Grand Jury and an indictment was returned against Herington for eight counts of felony sodomy, neither Herington nor his attorney were allegedly given notice as required by law of the Grand Jury proceeding. The district attorney’s office later claimed that notice had been served on him while he was incarcerated at the Livingston County Jail. However, there is no sworn affidavit of service by the sheriff’s department to support such a claim which would render the indictment defective and mandate its dismissal....

The stepdaughter testified that when she was 11 years old, not 10 as she had initially stated, her stepfather touched her inappropriately. She testified that the incidents had started sometime in 1996 but she didn’t say anything until the summer of 1998, after her stepfather was kicked out of the house by her mother. This testimony already contradicted previous statements she had made and known facts.

On cross examination, she admitted that she had previously stated under oath that the alleged improper actions had occurred five or six times within a two week period in 1996. She also admitted that in September of 2000 she told her best friend that it happened over a six to eight month period. Barnes told a case worker that it only happened five or six times. She told another case worker that it happened over a two week period and didn’t last that long. She told a police investigator that it happened between the spring and summer of 1997. She also told the police that it only happened on weekends.

Defense counsel Joseph Jochs of Ithaca argued that the stepdaughter’s testimony was so inconsistent and contradictory that it could not sustain a conviction. He pointed out that she had made repeated changes to the story that she had given in her sworn statement and told many different stories over time. He said that she admitted under oath that in a period of two months she went from first saying the alleged incidents happened within two weeks to saying they happened over six to eight months.....

While the appeal also argued that there had been legally insufficient evidence to constitute a conviction, the appellate court said that facts supporting that claim had not been preserved for review.....

In Herington’s case, other than the alleged victim claiming that the incidents had happened, there was no other proof and certainly no proof that proved Herington guilty beyond a reasonable doubt, the standard required.


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