George Linstadt - Suggestibility / No Crime / Misleading Forensics

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

Suggestibility issues

239 F.3d 191; 2nd Cir. 1/4/01; writ granted, due to ineffective assistance of counsel

"Lindstadt...was convicted on the basis of testimony from his daughter and estranged wife, and on testimony from two experts. Lindstadt testified in his own defense that he committed no abuse, and asserted that the allegations were fabricated by his embittered wife.

"Lindstadt claims that his lawyer at trial committed numerous errors serious enough to render the defense services constitutionally ineffective. We base our decision on the cumulative effect of four errors:

i) Defense counsel (along with the judge and prosecution) failed to notice a one-year error in the date of the alleged abuse. Lindstadt's wife and daughter testified that the first incident of abuse (Lindstadt was convicted on the basis of two incidents) took place in December 1986. It is now conceded that the first incident must have happened, if at all, in December 1985. Since the daughter's account of the events reflects that Lindstadt was at the time of the incident a member of the household (doing cooking, bathing the child, present at night, etc.), and since Lindstadt lived with his wife and daughter in December 1986 but not in December 1985 (and can prove it), a lawyer who conducted an adequate investigation could have elicited testimony by Lindstadt that he did not live with his daughter at the time of the alleged abuse, and in that way (and others) shaken the credibility of both key prosecution witnesses.

ii) Defense counsel made no effective challenge to the only physical evidence of sexual abuse. Dr. Milton Gordon testified that his observations of the child's private parts confirmed that she was abused. This testimony was based on unnamed studies that were (a) not requested by defense counsel, (b) not produced by the prosecution, (c) never produced or usefully identified since, (d) essentially unchallenged at trial, and (e) controverted by other easily available, published studies.

iii) Defense counsel announced in his opening [statement] that, after the close of the state's case, Lindstadt and counsel would decide 'whether [the prosecutors] have proven their case,' and only 'if they have made their case' would Lindstadt testify. Lindstadt's testimony in his own defense therefore became an implicit confession that the prosecution had 'made [its] case.'

iv) Defense counsel proffered testimony from two law enforcement witnesses that, before the daughter made allegations of abuse, Mrs. Lindstadt had attempted several times to put her husband in jail for a variety of alleged crimes. This testimony was essential to bolster Lindstadt's only defense: that his wife had fabricated the allegations of abuse and coached the child to remember them. The testimony was excluded, however, after counsel failed to make the obvious relevance argument to the court.

"Lindstadt's daughter testified that the residence in which she was abused had a second floor. But the residence...where mother and child lived in 1985... had no second floor. More important, the child's testimony described the household at the time of the abuse as a conventional domestic household, with father, mother, and daughter living together. So, too, does her statement to the police. Lindstadt's wife testified similarly. In December 1985, however, the defendant was living apart from his wife and daughter, lodging with his mother and sister, as they have both attested. The prosecution has not tried to explain these incongruities." [Latter emphasis original.]

from NRE synopsis (by Maurice Possley):

"In April 1988 the mother of a 9-year-old girl reported to authorities in Suffolk County...that her daughter said she had been raped by her father -- once in 1986 and again just a few days later.

"The girl was sent to a physician who said that although her hymen was intact, he found some scarring that indicated to him that the girl had been sexually assaulted."

"The child testified from another room via closed circuit television that in December 1986, Lindstadt performed various sexual acts with her, including intercourse. The girl said she obeyed her father's order not to tell anyone. The girl also testified that in March 1988, her father peformed a sex act on her until she stopped him.

"Lindstadt's lawyer conducted a lengthy cross-examination of the girl and managed to elicit testimony that the girl road horses and was active in gymnastics -- activities the defense contended could have caused the physical scarring later described by the prosecution's medical expert."

"The prosecution called a child psychologist to explain why a child might conceal sexual abuse for years, and the pediatrician who examined the child after her mother brought her to Child Protective Services. The doctor said he found no obvious signs of trauma -- such as bruising or swelling -- and her hymen was intact. The doctor did find 'bumps and clefts' on the hymen that he testified were consistent with sexual abuse. On cross-examination, the doctor said he reached this critical conclusion based on what he called a 'Boston study.'

"The doctor also discussed 'toluidine blue dye' testing, which he claimed could disclose sub-dermal scarring of genitalia. The physician said his application of the dye showed some scarring that he said was consistent with intrusion into or rubbing of the vaginal area due to sexual abuse. He said his conclusion was based on a 'review' conducted by a John Hopkins University physician.

"Lindstadt's attorney attempted to suggest that the damage was caused by horseback riding, gymnastics, masturbation or infection, but the pediatrician rejected those causes based on the 'Boston study' and the Johns Hopkins physician's 'review.'

"The defense called Lindstadt, who testified that he never engaged in sexual conduct with his daughter and said that the allegations had been fabricated by his wife because she wanted out of the marriage. Lindstadt said the marriage was tumultuous and the family was struggling for money. He said they were evicted more than once and moved from apartment to apartment constantly. He said he had a good relationship with his daughter, and they played games, hiked, and rode horses together. He testified that he regularly helped her with her bath, and that on one occasion helped to clean the girl's genitals after he noticed her scratching a mild infection.

"Lindstadt's mother testified to the good relationship between Lindstadt and his daughter, and also told the jury that Lindstadt's wife had attempted to persuade her to disclose any admissions Lindstadt may have made to his mother.

"Lindstadt had a prior conviction for drunken driving and his lawyer attempted to call Lindstadt's probation officers to testify to their visits to the Lindstadt household. After the prosecutor objected to the testimony as irrelevant, the trial judge heard the testimony outside the presence of the jury.

"The two officers testified that, as part of their supervision of Lindstadt, they observed the Lindstadt household from February 1987 through the summer of 1988. They testified to acrimony in the household, Lindstadt's wife's animosity and vindictiveness toward her husband, and her refusal to help him with the basic tasks of supporting the household (such as driving him to work when the terms of his probation prohibited him from doing so). Significantly, they testified that, prior to the reporting of the sexual abuse, Lindstadt's wife repeatedly tried to convince the officers that Lindstadt had violated his probation and should be put in jail.

"Lindstadt's lawyer made several arguments in support of admissibility, but failed to make what an appeals court would later describe as 'the obvious, pivotal argument: the testimony would have corroborated Lindstadt's defense that his wife fabricated the sexual abuse.' As a result, the trial judge excluded the testimony and the jury never heard it.

"In April 1989, the jury convicted Lindstadt of one count of rape and two counts of sodomy for the December 1986 incident and acquitted him of one count of sodomy for the 1988 incident. He was sentenced to 12-1/2 to 25 years in prison.

"After he lost his direct appeals, Lindstadt filed a federal petition for a writ of habeas corpus in 1997, claiming that his trial lawyer presented an inadequate legal defense. After a U.S. District Judge rejected the petition in 1999, Lindstadt appealed to the Second Circuit Court of Appeals.

"On January 8, 2001, after Lindstadt had served about 11 years of his 12-1/2 to 25-year sentence, the Second Circuit...reversed the lower court, vacated his convictions and ordered a new trial. The court held that Lindstadt's defense attorney had failed to notice that in December 1986, the family was not even living in the home where the girl said she was raped. The court added that the prosecution's later claim that the attack took place a year earlier, in December 1985, was no more plausible because Lindstadt was estranged from his wife at that time and was not living with his family.

"The court held that the defense lawyer had failed to investigate and obtain medical expertise to counter the claims of the prosecution's medical expert. The court found that the pediatrician's testimony about his physical findings was based on 'unnamed studies' that were 'essentially unchallenged at trial and were controverted by other easily available published studies.'

"The court was also critical of Lindstadt's lawyer for telling the jury in his opening statement that after the prosecution rested, he and Lindstadt would decide whether the prosecution had proved its case, and only 'if they have made their case' would Lindstadt testify. As a result, the court noted, Lindstadt's testimony was 'an implicit concession' that the defense believed the prosecution had proved its case.

"Shortly after the ruling by the Court of Appeals, in February 2001, Lindstadt was released on bond; two months later prosecutors dismissed the charges. Lindstadt died the following year, in August 2002."

[All emphases added unless otherwise noted.]