An Innocent Man: Scott Molen's Bittersweet Victory

"I’m trying not to hate, but rather to enjoy the beauty we can see in life," observes Scott Molen. That worthy sentiment is all the more remarkable coming from someone whose life has been permanently disfigured by the State’s proprietary brand of ugliness.

In June 2007, Scott was convicted in Ada County, Idaho of "lewd and lascivious conduct" with his step-granddaughter and sentenced to 20 years in prison. The case presented against Scott consisted of the uncorroborated, self-contradictory testimony of the young accuser. The prosecution quite thoughtfully kept their presentation otherwise uncluttered by evidence.

During voir dire, assistant prosecutor Josh Taylor explained to the jury that "you’ll hear testimony from a small child. There won’t be any DNA evidence or other types of evidence of that sort." So zealous was the prosecution to avoid confusing the jury that they suppressed – until half-way through the trial -- the results of a detailed medical examination that found no physical symptoms of sexual assault.

While austere in providing proof, the prosecution was very generous in defining the offense for which Scott was on trial. He was formally charged with sexual assault – in essence, the rape of a child – but the lead prosecutor, assistant Attorney General Justin D. Whatcott, was permitted by the trial judge to redefine the offense as "lewd and lascivious conduct," which had a much lower threshold: Rather than physically violating the child, the defendant was accused of improperly "touching" her. This approach allowed the prosecution the luxury of barraging the jury with lurid claims it was not required to prove.

The prosecution was well aware of the fact that it was riding a very weak case.

Theresa Gardunia, the original prosecutor in the case, "told me I could plead guilty to one count of injury to a child, with one year in jail," Scott recalled to me. "I was also promised that I wouldn’t be a registered sex offender. But I didn’t do what they accused me of doing. I would never do such a thing to a child. I had made a lot of mistakes, and I had been in trouble with the law. I didn’t try to hide it. But I was not going to volunteer to serve time for something I would never do."

Most people convicted of crimes maintain their innocence. Few, however, can cite concurring testimony provided by the foreman of the jury that convicted them.

"When you boil the whole thing down and look at it," jury foreman Ken McKay admitted to a private investigator roughly a year after Scott was sent to prison, "there wasn't a single shred of evidence." Four members of the jury, McKay recalled, were "dug in" on behalf of Scott’s innocence. Several others "had decided that he was guilty pretty early on and there was really no reasoning with them about that."

An engineer by training – his professional credo was "In God we trust, everybody else bring your data," the jury foreman told the investigator – McKay maintained that he had been skeptical about "fantastic charges" made by the prosecution. For instance, the jury was told that "there was a pair of [girl's] undergarments that had a blood stain in them." His misgivings grew when that critical piece of evidence, although being prominently referred to in the prosecution’s case, was "never produced."

This was not an oversight, nor the product of mere incompetence. It was a "Brady violation" – deliberate prosecutorial misconduct intended to conceal exculpatory evidence. This much-discussed but never-seen piece of evidence was supposedly discovered at a time when the alleged victim was living with her mother and an abusive boyfriend in Phoenix, roughly 1,000 miles away from Scott. Furthermore, the mother claimed to have found it several months before she sent the girl back to visit the alleged molester a second time....

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