Detroit Free Press

Lawyer to seek new trial or dismissal of charges

BY L. L. BRASIER and JOHN WISELY

November 1, 2006

An Oakland County jury weighed his fate for five hours before deciding that kindergarten teacher James Perry was guilty of an outrageous offense:

Sexually assaulting two boys in his school.

But a Free Press review of the case has found evidence never presented at trial -- information that raises questions about whether Perry, who faces up to life in prison at his Nov. 9 sentencing, committed a crime.

The review, including interviews of witnesses never questioned by police and information obtained by Perry's new lawyer, reveals a case marred by conflicting testimony and debatable assertions about whether an assault happened.

The prosecution's case was based almost entirely on the contradictory accounts of boys who were 4 and 5 in October 2005, when authorities determined the assaults occurred. That's an age where experts say children are susceptible to suggestion, and courts are often skeptical of their ability to separate truth from fiction.
James Perry
James Perry was convicted in September. Now in the Oakland County Jail, he said he is sad, angry and afraid of going to prison. (Perry family photo

The review found:
  • Police never questioned three instructors in a special-education classroom where the assaults allegedly occurred. All three now say the crime could not have occurred there because the classroom was occupied at all times that day by students and at least one teacher. Prosecutors have argued consistently that the assaults took place in an empty classroom during lunch.
  • In court testimony, an Oak Park detective told jurors he recognized Perry from a previous case. The jury never was told that Perry was cleared in that case, has no criminal record and previously had never been charged with anything.
  • Contrary to the advice of counselors, the boys' mothers repeatedly questioned the boys -- on at least one occasion together -- about the attacks. Experts say such questioning, even if well-intentioned, can taint or influence the accounts of young children.
  • During the six-day trial, Perry wore a global-positioning tether that was clearly visible to jurors. Perry's trial lawyer never objected to the device, which is usually hidden to avoid an implication of guilt.

At a hearing today, Perry's appellate attorney, Robyn Frankel, also plans to argue that Perry, 32, would not have had enough time to snatch the two boys from a lunch line, walk them down a long corridor to the special-ed room and assault them in the 15-minute time frame in which the attacks supposedly took place.

Frankel plans to ask Oakland County Circuit Judge Denise Langford Morris to order a new trial or dismiss the charges. Perry, suspended from Key Elementary in Oak Park since the charges surfaced in February, was convicted in September.

"Everything about this case is bad," Frankel said. "What they're claiming is a factual impossibility. This is not a game. This is a man's life."

Oakland County Prosecutor David Gorcyca defends the conviction.

"We make no excuses for this case and we stand behind the unanimous verdict of 12 jurors," Gorcyca said last week. "I'll never apologize for convicting a pedophile."

Gorcyca also deflected the statements of the special-education staffers. "Our job is to interview ... eyewitnesses," Gorcyca responded, "not everybody in the school."

Oak Park Detective Erik Dolan, who took photos of the special-ed room after Perry was charged, concedes he never questioned the classroom's teacher, Clara Geary, or the two adults who worked with her: Terry Day, a paraprofessional, and Briggette White, a student teacher.

Dolan recently told the Free Press he didn't question the trio because the boys claimed the room was empty and the school's principal had told him special-education students leave the room at lunch.

Day, in an interview with the Free Press, said it would have been impossible to attack a child in the special-ed room. He said the room was always occupied because some of the children had disabilities that prevented them from going out to lunch, so three teachers always took turns staying with them.

"Listen, with these kids, you had to keep everything consistent, so our routines never varied," said Day, who had worked at the school for seven years.

Day says he knew Perry from sight. He said he hadn't seen Perry in the room in the days before the assaults "and he wasn't in the room that day."

Free Press seeks to contact jurors

The Detroit Free Press was forced to take prosecutors to court to obtain a list of jurors in the Perry case -- a public record under Michigan law.

Prosecutors filed a motion to block the newspaper from obtaining the list, but the trial judge, Denise Langford Morris, ordered its release on Oct. 16.

The newspaper, however, has not been able to talk with the jurors. Prosecutors, in a recent interview, admitted they contacted jurors by phone, mail and, in one case, a hand-delivered letter, warning that reporters might contact them.

On Oct. 20, the Free Press filed a formal request under the Freedom of Information Act, seeking a copy of the letter, requiring the prosecutors to deliver it by Oct. 27.

The Free Press has yet to receive the letter.

An alternate juror reached last week by the Free Press said the new evidence questioning the location of the assaults would have prompted a vote of acquittal.

L.L. BRASIER
White said she would sometimes accompany special-education students to the cafeteria to purchase their lunches, but she always left an adult behind -- usually Day -- to watch those who had brought their lunches.

"There was always somebody there," she said.

Both Day and White have filed affidavits saying the room was always occupied. Geary testified at trial that the room was always occupied.

All three say they did not come forward before because the Prosecutor's Office had never clearly identified the special-ed classroom as the site of the assaults.

Asked about the new witnesses, Assistant Prosecutor Andrea Dean, who handled the Perry case, said the location of the assaults was irrelevant.

"The jurors were never hung up on location," said Dean, who spoke with jurors after the verdict. "They believed the kids."

David Moran, a criminal law professor at Wayne State University who was not involved in the case, said doubts about where the crime occurred weakened the case and the prosecutor's credibility.

"That argument is an insult to the intelligence of the judge," Moran said.

"When you prove that it happened in a specific place and new evidence proves that it couldn't have happened there, that not only undermines the location, it undermines whether it happened at all."

Strong support
Perry now sits in the Oakland County Jail. He spends his days reading and answering dozens of letters he has received from friends and fellow teachers, who also have written to the judge in support of him.

"I pray that someday this will turn out all right, but I also know now that even if it does, I will never have my old life back," he said in an interview. "I can never go back to teaching. It was my life."

Said his father, Ed Perry, who lives in Berkley: "It has turned our lives upside down."

When Perry took the stand at his trial, he insisted he had never had contact with the two boys, who were in another kindergarten class. He said he did not even know their names until he was confronted.

When the prosecutor suggested that he didn't protest enough when he was accused, Perry became emotional. "I was devastated," he said.

Perry, who has a bachelor's degree from Michigan State University and a master's degree from Western Michigan University, had been at Key Elementary not quite two months when the accusations surfaced.

"He was a very good teacher, kind and caring," said Ron Payok, the recently retired principal at Lessenger Elementary School in Oak Park, where Perry previously worked. "He was not your rah-rah ... kind of teacher. He was more soft-spoken. That's what made him good with the younger grades."

It was at Lessenger, in 2003, that Perry had his first encounter with Dolan.

The detective responded to a call about someone in a neighborhood with a video camera, who turned out to be Perry. Dolan suspected Perry might be the man who had recently exposed himself to a teenage girl. But when Dolan showed the girl Perry's photo, she said he was not the one.

In his investigation, Dolan wrote then: "Perry was not involved in the original indecent exposure and his behavior, although unique ..." did not break "any criminal law."

Perry, at the time, had been videotaping a deteriorating neighborhood for a school board presentation.

Two years later, Dolan and Perry would cross paths again.

The accusations
On Oct. 12, 2005, a woman who had just moved to Oak Park from Chicago accompanied her 5-year-old son on his first day of kindergarten at Key Elementary.

The boy was assigned to veteran kindergarten teacher Lynn Duncan.

The mother said she returned to the school at about 11:35 a.m. to give her son a sack lunch.

She would later tell police that she didn't immediately see him in the lunchroom, but soon spotted him emerging from a "dark corner" at the far end of a hallway, later identified as the special-education room.

The mother told police that when she questioned her son, he said he'd had lunch with a teacher. She continued to question him and he said later that evening that the teacher had done "gay stuff" to him.

The next day, the mother said, her son identified Perry on the school playground as his attacker.

She took the boy to a hospital, where doctors found no injuries. But doctors reported the allegations to police, and, the following day, Perry was suspended with pay.

A few days after the allegations were made, the boy's mother complained to Duncan that she was angry that her son had been "tea-bagged" -- slang for oral sex. She also said her son had been the victim of a similar attack in Chicago.

About two weeks later, the boy was interviewed by Care House, a nonprofit center with counselors trained to interview sexual-assault victims.

The boy's account shifted dramatically from what his mother had told police.

In his account, he said he had been fondled by Perry and Perry attempted to force oral sex. The boy also told counselors that Perry pulled a second boy -- a 4-year-old -- from the lunch line and "tea-bagged" him.

Three days later, the second boy was brought to Care House. But he denied that Perry molested him.

The Free Press is not identifying the boys because of their ages.

Dolan, meanwhile, was ready to present the charges to prosecutors.

The request for an arrest warrant went to then-chief of warrants, James Halushka.

Halushka turned it down. In a recent interview, Halushka, who has since left the Prosecutor's Office, said he did not recall the case, but that it would be a "no-brainer" to reject a case built on the conflicting accounts of two small children, with no corroboration.

"I just wouldn't write" a warrant "on something like that," he said.

The case was closed. Perry returned to teaching, though he sought a transfer. The 4-year-old, whose mother could not be reached for comment despite repeated attempts, changed schools, too. The 5-year-old and his mother, who declined to speak to the Free Press, returned to Chicago.

Case is reopened
But in February, Gorcyca fired Halushka over what Gorcyca described as a difference in "management styles."

Two days later, prosecutors reopened the case, sending Dolan out to reinterview the two mothers.

Dolan's reports say that by then -- after the mothers had brought both boys together to talk about what Perry had allegedly done -- the younger boy reportedly told his mother that Perry had performed oral sex.

With the younger boy now also incriminating Perry, prosecutors agreed to charge Perry with two counts each of first- and second-degree criminal sexual conduct.

Dolan went to Perry's Ferndale home, where he concedes he put a gun to Perry's head, forced him to the floor and handcuffed him.
Police searched the home and confiscated Perry's computer, cell phone and cameras.

They found no pornography. But they did find photos of class Christmas parties and field trips, and videos, including "The Lion King," "Star Wars" and "Harry Potter."

Both Dolan and Dean, the prosecutor, would later attempt to portray the videos -- outside the presence of the jury -- as "nonerotic pornography."

At Perry's preliminary exam in March, the 5-year-old changed his account once more, insisting that he was alone with Perry.

Experts say such shifting is not unusual. Care House director Amy Allen testified at Perry's trial that young children can be easily influenced by adults and that repeated questioning can alter a child's memory.

Perry, in the Free Press interview, said he is sad, angry and afraid of going to prison. Until his arrest, he said he had loved his life and his job. Now, he said, both are gone.

"All I can do now is pray."

Contact L.L. BRASIER at 248-858-2262 or brasier@freepress.com.


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