Mad River Union
EUREKA – John Edward Kufner, the 62-year-old McKinleyville man accused of prolonged child sex abuse, was found not guilty on all counts today, July 28 in Humboldt Count Superior Court.
The seven women/five men jury deliberated only a few hours in the case, in which Deputy District Attorney Zachary S. Curtis charged foster father Kufner with “continuous sexual abuse of a child under the age of 14” at his trailer park home in McKinleyville.
The plaintiff, Jane Doe 1, about 11 years old at the time of the alleged abuse, resided with Kufner and her younger sister, about nine years old, for some14 months in 2012-2013.
The full background of the case and the trial appears in the July 29 edition of the Mad River Union.
Following the not guilty verdict, jurors told John Chiv’s Words Worth blog that Curtis failed to produce sufficient evidence and testimony. One juror, a woman, told Chiv she believed both Jane Doe 1 and her mother, a recovering drug addict who has suffered severe mental illness, appeared to be on drugs while testifying.
Chiv quoted a second female juror who was sharply critical of Curtis, claiming, “The DA did a terrible job. He did not present a credible case. Mr. Kufner presented himself very well [on the witness stand.]”
Jurors lamented the fact that Kufner spent 10 months in jail and added, “It’s a shame we will never know” the truth of what happened.
Deputy Public Defender Casey Russo won the case. In his arguments defending Kufner, Russo said Humboldt County Sheriff investigators and colleagues in other agencies failed to conduct a thorough and detailed investigation, mistakenly taking Jane Doe 1’s allegations at face value. He said investigators should have examined in depth her exceptionally troubled family history and childhood.
For background, see the following article from the July 29, 2015 edition of the Mad River Union:
Abuse case: A ‘she said, he said?’
Mad River Union
EUREKA – Bare bones, the case of alleged child sex abuse against a 62-year-old McKinleyville man appears to be a “she said, he said.”
When she was about nine years old, Jane Doe 1 testified, “he put his hands down my pants and moved his fingers around” while she was lying in bed.
She declared on the witness stand, “He raped me.”
The accused, foster father John Edward Kufner, testified that he slipped a finger into the top of Jane Doe 1’s diaper from time to time to check if she were wet. She was a chronic bed wetter much of her childhood and sleeping with a wet diaper aggravated the rashes to which she was prone. Ointment had to be applied; she wet herself at school as well as at home.
But yes, Kufner admitted, he slept together with Jane Doe 1 and her younger sister, Jane Doe 2 (about seven years old), to assuage the girls’ fears of the dark; he comforted them until they fell asleep. They asked to bed down with him.
On at least one occasion, he woke with an involuntary erection while lying next to Jane Doe 1 in the lower segment of the girls’ bunk bed.
“I jumped up and got out of there, I was embarrassed as hell,” Kufner testified. “I felt really humiliated, I was ashamed. It was not an appropriate response, it was not intentional.”
Of this back and forth, Deputy District Attorney Zachary S. Curtis urged the jury not to resort to a minimalist “she said, he said” predicate in reaching a verdict.
“He said, she said” is a tie that goes to the defense and will set Kufner free, Curtis admonished the 12 jurors and three alternates, who began their deliberations late last week.
In legal parlance, the “she said, he said” cliché is a material fact dispute. It is not a dialogue or a misunderstanding; it is testimony in direct conflict.
On that basis, jurors might conclude that the truth is undiscoverable – and Curtis would lose his case. Hence his objections to the reductionist “he said, she said” approach to the evidence.
Curtis is not alone in his concern. In the early 1990s, an appellate court judge in Ohio argued in a dissenting opinion that “he said, she said” testimony is inimical to faithful jurisprudence and should be exiled from the courtroom. It should not be admissible in the first place.
The cliché gained popular currency during the highly contentious Anita Hill/Clarence Thomas Senate confirmation hearings in the summer of 1991, when Thomas was nominated for appointment to the Supreme Court. He won confirmation by a narrow margin.
Curtis argued that the truth in the Kufner case is discoverable and he asked the jury simply to weigh the evidence in full: not only to test the character and credibility of the plaintiff and the defendant as revealed in their testimony and their demeanor on the stand, but also to weigh the testimony and evidence brought to bear by law enforcement, medical authorities and child welfare officials.
Kufner is charged in count one with “continuous sexual abuse of a child under the age of 14” at his trailer park home from April 1, 2012 until July 31, 2013. Although the mother resumed custody during a transition following July 31, 2013, Jane Doe 1’s charges were not brought to light until February 2014.
“Continuous” abuse is defined legally as three or more acts of “lewd and lascivious conduct” during a period of at least three months – that is, “willful touching of a child.”
The touching of bare skin or of the genitals is not required under the law. Touching through clothing can be lascivious if aimed at sexual arousal. A foot fetish could qualify for purposes of sexual arousal, Curtis explained to the court.
He underlined that “the testimony of a complaining witness alone is enough to convict.”
The deputy district attorney reminded the jury that Jane Doe said Kufner had “touched her pee spot” (vagina); she alleged too that during a camping trip “he touched her private part(s) with his private part(s).”
Beyond Jane Doe 1’s testimony, Curtis added, a registered nurse testified that she diagnosed the child with bacterial vaginitis shortly after she stopped living with Kufner. The nurse said that in her professional opinion such an infection almost always results from physical contact, not from bed wetting or wet diapers.
Curtis drove home three other points:
• Jane Doe 1 was consistent in her testimony.
• She had no motive to make up accusations. “Mr. Kufner was her shining star,” the man who did everything for her and her younger sister’s benefit: meals, clothing, transportation, toys, parties, camping trips, help with school and homework.
• Kufner’s credibility could not be vouchsafed because he admitted on the stand that he had made a false statement to law enforcement when he denied at first that he had had an erection while lying next to Jane Doe 1. Eventually he acknowledged, “I did do something she thought was wrong,” but not before the defendant denied the erection three times, Curtis said.
In the law enforcement recording, Kufner went on to admit he “rubbed on her” – in his words, “I recall rubbing her, yes.” But then he denied that literally seven seconds later, Curtis noted, telling officers instead, “I remember going in and wrapping my arms around her until she fell asleep.”
At another point, Kufner confessed, “I always had a fear that something like this might happen” – an oblique reference perhaps to a self-fulfilling prophecy?
Categorically rejecting the state’s case, Deputy Public Defender Casey Russo said the prosecution failed to prove its charges beyond a reasonable doubt, the axis of a criminal case.
Jane Doe 1’s testimony cannot be trusted beyond a reasonable doubt because she grew up in a profoundly dysfunctional family, in which general instability was the main fact of life, he recounted. “It’s an understatement to say she’s had a trouble past” – molested at the age of four by an older child “playing doctor”; chronic bed wetting, a condition requiring constant care and maintenance; schooling in special education classes; blatant and prolonged parental neglect and abandonment.
“Who is Jane Doe 1?” Russo asked rhetorically. “Who is her drug addicted mother?” The jury has no full picture because the authorities never bothered to find out, he complained. “Law enforcement didn’t look into the history of the mother and the family – who knows what those children saw?”
Instead of establishing a thorough record, investigators took Jane Doe 1’s allegations as gospel, ignoring her comprehensively troubled childhood, blighted by a drug addicted mother with grave mental illnesses, repeatedly abandoned, moved from place to place and exposed to strange men wherever they went.
From that history, Russo said, Jane Doe 1 concocted a sexual fiction born of “accumulated anger and lack of attention,” not of Kufner’s behavior as a foster parent.
Failing to find out more about the child’s past, law enforcement did not even take the time to interview her trailer park neighbors, school officials or others who could have provided clues to her background, upbringing and immediate family circumstances, Russo contended.
What the jury is left with, he emphasized, is an investigation and evidence that are shallow, fragmentary and contrary to reason.
Jane Does 1 and 2 saw child welfare counselors throughout their 14-month stay with Kufner and not even the hint of a red flag emerged, Russo recalled. Not one of Jane Doe 1’s accusations on the witness stand contained specifics and the district attorney’s office and other authorities neither sought to learn what triggered the allegations in the first place nor to pinpoint to whom they were addressed.
“The girls asked to lie down with him,” Russo said emphatically, “and men do wake up with erections. It’s natural; his body betrayed him.”
Children are suggestible, Russo went on, implying that perhaps the mentally unstable mother had colluded in some fashion with the child.
Kufner testified that he believed the mother developed a resentment of him when she observed how attached her daughters were to him. A father in his own right, he claimed he loved the girls as if they were his own daughters.
“He gave them the only stability they have had in their young lives,” Russo concluded.
Rebutting the public defender, Curtis said that the professionalism of law enforcement’s investigation “is not on trial. It is not germane to the issue of whether Mr. Kufner touched her [Jane Doe 1] three or more times during a period of three months,” constituting lewd and lascivious conduct.
The time spent on the investigation is not relevant, nor are the aspersions the defense is casting on it, Curtis retorted.
And in fact there was a red flag, he parried: the nurse’s conclusion that Jane Doe 1’s vaginal infection stemmed from physical contact, not from incontinence.
“Focus on the evidence you have,” Curtis told the jury.