Kenneth Pavel - False Confession

Pavel, Kenneth; child sex abuse , assault; NRE: perjury/false accusation, no crime, inadequate legal defense

Bench trial

Suggestibility issues

261 F.3d 210; 2nd Cir. 7/25/01; denial of writ reversed; writ granted, due to ineffective assistance of counsel

[Federal Judge Thomas J. McAvoy of the Northern District of New York, the same judge who denied Nickel's writ, denied Pavel's -- twice , and also refused to issue a of Certificate of Appealablity (also twice), which would have made getting heard by the Second Circuit much easier. But the present decision reversed McAvoy, granting Pavel the writ.]

"In the spring of 1989, Pavel was arrested and accused of sexually abusing his [two sons]...The accusations were brought to the attention of the police by Pavel's then-wife Margaret Pavel ...with whom he was engaged in a series of marital disputes, and who had recently been denied sole custody of [the two sons].

"Upon his arrest, Pavel contacted Sanford Meltzer...the attorney who had represented him in connection with the marital disputes. Meltzer noted that there was little if any physical evidence that Pavel had abused the boys in the manner that they alleged. Accordingly, Meltzer did not prepare a defense; instead, he planned to move to dismiss the charges against Pavel at the close of the prosecution's presentation of its evidence, and was confident that the trial judge would grant the motion.

"[A] bench trial* commenced [before Judge John W. Brandt , Onondaga County Court]...On October 18, 1989, the state trial judge found Pavel guilty of some of the charged crimes..."

[* Just like in Nickel's case. One wonders if Judge Brandt took more than the two minutes it took Judge Paul Czajka to 'deliberate' his verdicts, and wrongfully convict Nickel.]

"Pavel was paroled almost nine years later -- on August 25, 1998. One of the conditions of his parole was that Pavel 'cooperate fully' with a particular sex-offender progrm. As part of the program, Pavel was required to admit having committed the crimes for which he was convicted. He refused to do so...and was therefore returned to prison on November 15, 1999. He is there now [as of late Juy 2001, when this decision was written]."

"On February 7, 1995, Pavel petitioned for a writ of habeas corpus in the District Court, arguing, inter alia, that Meltzer had provided ineffective assistance of counsel. The petition was denied as procedurally barred...Pavel then applied for a Certificate of Appealability, and his application was denied in a December 23, 1996 Decision and Order entered by Judge McAvoy.

"Approximately one month later, Pavel moved this Court for a Certificate of Appealability. We ruled by summary order that Pavel's claims were not procedurally barred and remanded the cause to the District Court...for a determination of the petition on the merits.

"On June 16, 1999, Judge McAvoy again dismissed Pavel's habeas petition, this time on the merits, and denied...for a second time Pavel's motion for a Certificate of Appealability.

"On October 1999, Pavel moved in the [U.S. Circuit] Court of Appeals for another Certificate of Appealability. By order dated July 24, 2000, we granted the motion on the question of whether 'appellant [Pavel] was denied effective assistance of trial counsel if, as he alleges, his counsel, assuming that his motion to dismiss would be granted, failed to prepare a defense.'"

"There are many ways properly to assist a client...But making important decisions with no regard for a client's interests is not one of them."

"[W]e pause briefly now to commend Kelley Drye & Warren (Kevin C. Walker, of counsel, New York City), which took on this matter pro bono publico over eight years ago, and has now seen it through. Kelley Drye's work on this case has been tenacious and consistently skillful, and by providing their clients with superbly effective assistance of counsel, the firm has acted in the best traditions of our profession." [Emphasis original.]

"On remand, the District Court shall issue a writ of habeas corpus to Mr. Pavel..."

[FN20:] "Dr. [Sandra] Kaplan [of Cornell University Medical College]...noted that the boys were not interviewed using a standardized questionnaire, and opined that 'the use of a standardized protocol when interviewing young children who are alleged to be the victims of sexual abuse is critical because it ensures that the interviewer will not use leading questions which unduly influence the child or suggest a desired response.* In this instance, it is apparent that leading questions were used throughout the children's numerous interviews. . .Given this history of numerous, improperly conducted interview sessions with both boys, as a professional child psychiatrist experienced in the evaluation of claims of sexual abuse, I would consider the boys' stories inherently unreliable.'"

[* It is quite clear that a standardized questionnaire was not used in the Nickel case, either. It's also apparent that leading questions were used -- particularly by Investgator Ronald Bates , who stated that he 'identified' the sex photo as depicting 'Arthur' and Nickel, before asking the former to confirm this supposition. See Suggestibility section of this site.]

from Records and Briefs:

"District Judge Thomas J. McAvoy adopted the Magistrate Judge's [Scanlon's] Report-Recommendation [to deny the habeas petition] in a one-page Decision and Order..."

"Magistrate Judge Scanlon -- without ever holding a hearing to consider the evidence supporting [Pavel's] Petition -- issued a second Report-Recommendation recommending that the Petition be denied on the merits. [Pavel] filed timely Objections to Magistrate Judge Scanlon's Report-Recommendation...Over a year later...and again without holding a hearing... Judge McAvoy issued a three-paragraph Decision and Order containing no legal analysis."

"Magistrate Judge Scanlon's May 12, 1998 Report-Recommendation, which District Judge McAvoy adopted... completely overlooked the powerful evidence that [Pavel] submitted in support of his Petition,* evidence that would have cast more than reasonable doubt on [Pavel's] guilt had it been offered at trial."

[* This was also true of both Magistrate Randolph Treece's Report-Recommendation and District Judge Thomas J. McAvoy's final Decision and Order in the Nickel case. For example, neither addressed the fact that 'Arthur' was wrong about each and every interior and exterior detail regarding Nickel's home about which he testified. See Federal Appeal/Where Things Stand Now. ]

"The District Court concluded that [Pavel] was not denied effective assistance of counsel. First, it stated -- incorrectly* -- that [Pavel's] 'only viable defense strategy' was to prove that [the boys' mother as well as their therapist] 'convinced his two sons that [Pavel] had sexually abused them'...Even a cursory review of [Pavel's] Petition reveals that this theory was not [Pavel's] 'only defense.' Indeed, the Petition never states that [the boys] were 'convinced' of anything..."

[* Likewise, Treece and McAvoy made numerous (sloppy) factual errors in their 'work' in the Nickel case. See Federal Appeal/Where Things Stand Now. ]

"The District Court also held that it was reasonable for [defense] counsel not to call a medical expert to testfy that the state's medical evidence was 'inconsistent with repeated sexual abuse' because Dr. Madden admitted this point...In fact, Dr. Madden admitted no such thing. Dr. Madden did testify 'that a sexually abused child does not always display medical signs indicating such abuse has occurred.'...That, however, is far different from saying that a child who is repeatedly, violently sodomized will invariably show evidence of the abuse, and that the absence of such evidence strongly indicates that no such abuse occurred..." [Last emphasis original.]

"The District Court erred in concluding that 'virtually all of the evidence that [Pavel] claims should have been presented [at trial] was presented.' In fact, no such evidence was presented, and the District Court failed even to discuss most of the evidence submitted in support of this Petition."*

[*Also true of Nickel case.]

Now, citing excerpts of Kenneth Pavel's statements at sentencing:

"'Sodomy, sodomy, sodomy. This is all that the D.A. has yelled since the inception of this action. Why has he not yelled facts, evidence, proof?* I'll tell you why he has not -- why he had veiled the former and not the latter. Because he had no facts, he had no evidence, and he had no proof. He played upon the emotional sensationalisms of the accusations. Why did he have no facts, evidence or proof? Because I never committed any of the alleged acts. . . You, Your Honor, have fallen prey to the rantings of a fanatic.* The D.A. and the probation department [which prepares Pre-Sentence Reports ] condemn me for inflicting trauma on my sons, for having them testify in open court.** I ask them to reflect for a moment. Who led the inquisition on the night the boys disclosed? Who had them face the intimidating sheriff's deputies in an enclosed and windowless room? Who slapped them in front of a grand jury of some 20-odd people? ...I question the so-called facts of the case. When I was...arrested...I was accused of having committed these heinous acts on Saturday, April 22, 1989...with boys present in the shower...Why then did the facts change *** to April 15 after I testified to the grand jury, proving that these were impossible allegations? Why did the facts change to each boy individually rather than together? Why did the facts change again to April 8? I'll tell you why. They weren't facts.'

"'There was only one trier of fact herein. With all due deference to the bench, it simply is not that easy to separate out inadmissible evidence once heard.'"****

[* In the Nickel case, Prosecutor Peter Torncello yelled "boy-lover, boy-lover, boy-lover,' as opposed to facts, evidence, proof. And he most certainly also 'played upon the emotional sensationalisms of the accusations.' A 'fanatic,' indeed. ]

[** Also true of the Nickel case, as if these alleged victims were defense witnesses.]

[*** Similarly, 'Arthur' changed his stories as to to where certain alleged activities occurred.]

[**** In addition to the fact that Judge Paul Czajka took just two minutes to 'deliberate' his verdicts, he did not take any notes, and did not request any testimony read-backs. There was, therefore, no way in the world that he could have carefully compared and contrasted the testimony of certain persons with each other or the photographic evidence.]

NRE synopsis (by Stephanie Denzel):

"In April 1989, in Manlius...Kenneth Pavel was arrested for sexually abusing his 5- and 7-year-old sons while vacationing in Boynton Beach, Florida.

"Pavel's ex-wife [ Margaret Pavel ] brought the abuse allegations to the attention of the police. At trial in Onondaga County...the boys testified that Pavel had abused them repeatedly. The boys' therapist testified that they had spoken about the abuse, and a medical examiner testified that physical examinations of one of the boys showed some marks that could be consistent with sexual abuse.

"Pavel's attorney failed to develop a case because he assumed that the case would be dismissed, failed to call fact witnesses who would have established Pavel's alibi and his ex-wife's mental instability, and failed to call any medical experts to contradict the prosecution's expert testimony. Pavel was the only defense witness and he denied sexually abusing the boys.

"Pavel was convicted of rape, sexual assault, and child endangerment* after a bench trial in October 1989. He was sentenced to 8-to-24 years."

[* These do not appear to be the actual charges he was convicted of, because, under New York State law at the time: 1) 'Rape' cannot be committed against a male victim -- it appears to be 'sodomy'; 2) 'sexual assault' appears to be the crime of 'sexual abuse,' and 'child endangerment' appears to be 'endangering the welfare of a child.']

"Pavel was paroled almost nine years later -- on August 25, 1998. One of the conditions of his parole was that he 'cooperate fully' with a sex-offender program. As part of the program, Pavel was required to admit having committed the crimes for which he was convicted. When he refused to do so, he was returned to prison on November 15, 1999.

"In 1995, Pavel filed a federal petition for a writ of habeas corpus but it was denied. But in July 2001, the Second Circuit U.S. Court of Appeals vacated Pavel's conviction and ordered a new trial. The court held that Pavel's defense lawyer had failed to call witnesses, including medical eperts, who would have contradicted the prosecution's evidence.

"The prosecution dismissed the charges in October 2001."

[All emphases added unless otherwise noted.]