Ben Gersten - False Accusation

Gersten, Ben; child sex abuse; NRE: perjury/false accusation, no crime, false/misleading forensic evidence, inadequate legal defense

299 F.Supp.2d 84; E.D.N.Y. 1/15/04; writ granted , due to ineffective assistance of counsel

"The state trial and appellate record in this court support the conclusion that trial counsel failed his client.

"Trial counsel failed to consult with or call an expert medical witness regarding the physical indicia of sexual abuse. Had he done so he would have been in a position to rebut critical aspects of the testimony of the People's medical expert at trial, significantly calling into question whether the physical examination of the daughter revealed penetrative trauma to her vagina and anus. In light of the daughter's allegations of continuing rape and sodomy over a period of years, the absence of physical indicia of such abuse would necessarily have been troubling to a trier of fact [i.e., a jury or -- in this case -- a 'bench trial' judge.] Counsel's unexplained and unreasonable failure to present this and other potentially exculpatory evidence significantly undermines confidence in the outcome of the trial."

NRE synopsis (by Maurice Possley):

"In July 1999, a grand jury indicted 49-year-old Ben Gersten on charges of sodomy, sexual abuse and child endangerment after his 13-year-old daughter accused him of sexually assaulting her on an almost daily basis in their home in Malverne, New York beginning when she was five years old.

"The indictment specifically accused Gersten of forcing his daughter to engage in anal and oral sex betweeb March 15 and March 31, 1995 and that on December 13, 1998, he forced her to rub his penis and forcibly touched her vagina.

"Prior to the trial, the judge ruled that the prosecution could introduce evidence not charged in the indictment: that he forced her to perform oral sex on him, beginning in 1990, when she was five; and that he later forced her to engage in anal sex; and that in November 1998, when she was thirteen years old, he forced her to have vaginal intercourse with him on two occasions.

"The court ruled that the evidence from the early 1990s could be admitted to enable the court to understand the daughter's testimony, and that the evidence from 1998 could be admitted to help the court understand the daughter's state of mind, the medical evidence and the timing of his daughter's disclosure of the abuse.

"In November 1999, Gersten, a law school graduate who passed the New York State bar exam but never practiced law, went to trial in Nassau County...and chose to have the judge decide his case without a jury. His lawyer wanted to move quickly to trial because he believed -- mistakenly -- that the girl had been hospitalized due to a failed suicide attempt and would not be available to testify.

"In fact, Gersten's daughter, then 14, was not hospitalized. She testified [to the above]..."

"She said this happened almost every night, while her mother slept in the nearby bedroom, until her parents separated and Gersten moved out of the home when she was nine years old. She said that even though Gersten was not working and they were alone together for much of the day while her mother worked, the assaults occurred only at night.

"She testified that around March 15, 1995, Gersten and her mother said they were going to divorce. She said that every night for the next two weeks -- until April 1 when Gersten moved out -- Gersten came into her bedroom and sexually assaulted her. She said Gersten called her his 'little slut,' told her that her mother knew and approved of what he was doing, and threatened to kill her if she told anyone.

"In November 1998, Gersten was living in Manhattan. His daughter testified that during a visit on the weekend of November 7 and 8, Gersten raped her after she went to bed. She testified that two weeks later, when she visited Gersten over Thanksgiving weekend, he raped her again.

"The girl also testified that on December 13, 1998, when Gersten came to the home in Syosset where she lived with her mother, he forced her to fondle his penis and he forced his hand into her underwear while they were in the kitchen.

"She testified that in the two months prior to accusing her father, she and a boyfriend had engaged in sexual toching but that he had not penetrated her vagina or anus. She admitted that during the entire period of the alleged sexual abuse, she had never said anything to anyone, including the therapists she had been seeing since she was in kindergarten.

"The girl's mother testified that sometime in 1990, when her daughter started kindergarten, the girl's sleeping habits changed. She became fearful about going to bed and begged her mother not to leave her, asked her to leave the light on and had frequent nightmares.

"The mother testified that despite seeing a psychiatrist, the behavior continued even after she and Gersten separated in 1995.

"The mother testified that starting around the time her daughter was five years old, she noticed when she bathed the girl that her vagina appeared red. The mother testified that her daughter's pediatrician told her that the redness was not abnormal.

"After Gersten moved out, he and his wife agreed the girl would spend every other weekend and Jewish holidays with Gersten. However, the mother testified over the next three years, her daughter expressed anger and fear at the prospect of visiting Gersten and was upset upon her return from those visits.

"In early December 1998, the girl told her therapist and her mother that Gersten had physically abused her. The mother testified that on December 30, 1998, the girl suddenly said, 'I can't take it anymore' and began recounting in graphic detail how Gersten had sexually assaulted her. The mother called the girl's therapist, who notified authorities.

"The mother also testified that she never saw Gersten touch his daughter inappropriately or heard anything unusual during the night.

" Dr. Bella Silecchia , the director of pediatric services and the Suspected Child Abuse and Neglect Evaluation Program at the Nassau County Medical Center, testified that she physically examined the girl using a colposcope, a gynecological tool, to magnify and photograph to identify evidence of injury and trauma.

"After a visual examination revealed nothing unusual for a girl of her age, Silecchia said the colposcope enabled her to find signs of 'chronic irritation, chronic manipulation, chronic rubbing.' She concluded 'there had been trauma to the hymenal tissue of a penetrating type' that was not caused hy masturbation and that there was scarring of the anus that could not be explained by accidental trauma.

" Dr. Donald Lewittes, a clinical psychologist specializing in child and adolescent trauma including sex abuse, testified about Child Sexual Abuse Accommodation Syndrome. While not testifying specifically about the complainant, Lewittes said symptoms of the syndrome include a delay in disclosing the assaults and that a child will likely not disclose sexual abuse until reaching a 'saturation point,' when the stress cannot be absorbed any longer.

"Asked whether children ever admitted to having lied about sexual abuse, Lewittes said that '[t]here have been children who have told me that they. . .were abused and then recanted it,' but there were 'very, very few,' and that the 'vast majority' both in his personal experience and according to the research literature 'would not lie about something like sexual abuse.'

"The girl's boyfriend, who was 13 years old, testified that he had been friends with the girl for two or three years and that for a year they were boyfriend and girlfriend. When they were romantically involved, they did not do anything 'hard core,' but they did engage in 'a mutual masturbation' of each other. They never engaged in vaginal or anal intercourse.

"The boyfriend also testified that the girl did not tell him about her father's abuse until after she had already told her mother and others, and that she continued to engage in sexual activity with him after those revelations.

"The defense did not present any evidence. On December 1, 1999, the judge convicted Gersten on all nine counts and sentenced him to 37-1/2 to 75 years in prison -- a sentence that was more than was allowed and was corrected on appeal to 25 to 50 years in prison."

[The fact that this bench trial judge sentenced Gersten to more than the law permitted may also say something about his impartiality -- or lack of it.]

"While his appeal was pending, Gersten filed a motion for a new trial on the ground that his trial lawyer provided a constitutionally deficient defense. The motion was accompanied by affidavits from two experts.

"Dr. Jocelyn Brown, a doctor specializing in pediatric medicine and the founding director of the Child Advocacy Center at Columbia Presbyterian Hospital, reviewed the medical evidence and said that Silecchia's finding of physical conditions that tended to indicate 'chronic irritation, chronic manipulation, and chronic rubbing' was 'no longer considered of significance in the forensic community when evaluating children suspected of being sexually abused' because the condition can arise from 'innumerable' factors unrelated to sexual abuse.'

"Brown stated that Silecchia's opinion on the condition of the girl's hymen was erroneous and that the condition is commonly found in post-pubertal girls. Overall, Brown concluded that the physical evidence was not the result of penetrating trauma and that none of the medical evidence corroborated the allegations of abuse or the alleged victim's testimony.

"Dr. John C. Yuille, a forensic psychologist and professor at the University of British Columbia, submitted an affidavit stating that 'What was once known as "Child Sexual Abuse Accommodation Syndrome" is no longer regularly accepted in the child sexual abuse research community.' Yuille said that the inventor of the theory, Dr. Roland Summitt, 'has retreaed from his position of classifying it as a "syndrome".' In addition, Yuille said 'Research in the field reveals that the "symptoms" which were alleged components of the syndrome do not occur regularly enough in those who truly have been victims of sexual abuse to call it a syndrome.'

"Yuille concluded: 'Dr. Lewittes' testimony with regard to the child sexual abuse accommodation syndrome. . .has no validity and is not regularly accepted in the scientific community.'

"Regarding Lewittes' testimony that the onset of adolescence could trigger disclosure of child sexual abuse because it increases a child's awareness of her own sexuality, Yuille said, 'In my years of research in this field, I have never encountered this proposition. In short, this "theory" has no scientific validity in the field of child sexual abuse.'

"The motion was denied without a hearing and the Appellate Division...denied leave to appeal.

"In 2002, Gersten filed a federal petition for a writ of habeas corpus claiming his trial lawyer failed to obtain medical discovery materials or to have them reviewed by an expert, or to consult with or call a medical or psychological expert to testify at trial. The petition was accompanied by the same affidavits from Dr. Brown and Dr. Yuille previously submitted with his post-trial motion.

"In January 2004, following a hearing on the petition, U.S. District Judge Jack Weinstein vacated Gersten's convictions and ordered a new trial."

"The Second Circuit...upheld Judge Weinstein's ruling in October 2005 and Gersten was released on bond pending a retrial. In September 2006, the prosecution dismissed the charges."

[Note that the prosecution left Gersten 'hanging' for nearly a year after the Second Circuit's decision. (Typically, this sort of 'face-saving ritual' takes just a few months.)]

[All emphases added.]