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TEEN ATTEMPTS TO CLEAR NAME

August 30, 2009 1:10 am

BY PAMELA GOULD

A former Aquia Harbour teen who spent 17 months incarcerated for a rape, even though his accuser recanted her accusation, is suing the state Department of Juvenile Justice to clear his name and get off the state's sex-offender registry.

The lawsuit claims the teen's court-appointed attorney, Denise Rafferty of Stafford County, violated his constitutional rights by providing ineffective counsel.

Specifically, she is accused of failing to investigate the claims against her client, of failing to interview him, of failing to investigate his and his accuser's backgrounds, of misrepresenting the evidence against him and of ignoring an eyewitness. She also is accused of not properly informing him of the allegations against him and of his legal options before recommending he plead guilty to charges of rape and breaking and entering.

Though the suit focuses its claims on Rafferty, it also faults Deputy Commonwealth's Attorney Eric Olsen, who prosecuted the case.

"Neither the prosecutor nor the defense attorney conducted even the most cursory investigation of the complaining witness or the defendant," the suit filed in Stafford Circuit Court states.

"Had they done so, they would have learned that the complaining witness had a well-documented history of falsely accusing others, including but not limited to sexual allegations, and that she was fully capable of consenting to sex."

Olsen prosecuted the case on the grounds that the girl, then 14, did not have the ability to consent to sexual intercourse because of intellectual shortcomings.

The suit contends that the girl and the boy, then 15, were intellectual peers because both "have IQs lower than the lowest 5-10 percent of the general population."

The civil suit was filed Aug. 18 against the state Department of Juvenile Justice as a procedural matter since the department continues to supervise the boy while he is on parole.

The suit includes 20 affidavits from the teens and from people who know them such as their parents, their siblings, a coach, a caretaker, a psychologist, an assistant principal and teachers.

Among the information contained in the affidavits is that:

The detective who interviewed the boy doubted the allegations at the start.

Stafford school officials knew the girl had a history of false accusations and, as a result, immediately doubted her rape allegation.

Stafford County prosecutors, sheriff's deputies and social workers had had previous encounters with the girl and evidence of her untruthfulness before this allegation.

Rafferty told the boy's father the boy should plead guilty because the prosecution had DNA test results that conclusively linked him to the crime, but a lab report shows the test was never conducted.

Though the boy is now 18 and an adult, neither he nor the girl is being named because of their ages at the time of the incident. Both sets of parents have different surnames from their children.

IMPACT ON THE ACCUSED

The suit claims the boy and his family suffer ongoing effects from the false accusation and from having his name on the sex-offender registry. They have moved twice since the boy's arrest.

"We live in constant fear--fear of future allegations, fear of strangers who see the Sex Offender Registry, fear of retaliation by Eric Olsen for continuing to maintain our son's innocence, fear of our young sons being out without us and without alibis," Cherri Dulaney, the boy's mother, said in her sworn statement. "I have little hope that anyone can undo the damage that has been done to him."

Dulaney said her oldest son lives with the effects of being imprisoned as a sex offender.

"[My son] is a different person now than before he was incarcerated," she said. "[He] continues to have great difficulty trusting people and fears that he will have to go away again."

He can't shake the habits learned while held in a juvenile correction center.

"He carries around a knapsack containing his valued belongings, he paces around the yard and insists on living according to a set, inflexible schedule," she said.

A younger brother fears he could meet the same fate.

Since the accused was released to his family in late February, a neighborhood girl has made a false sexual allegation against one of his brothers and someone has left a note on their door reading: "We don't want a rapist living in our neighborhood."

When police investigated the allegation against the brother, the girl admitted she made it up because she didn't like having a convicted rapist next door, Dulaney said.

As a result of those incidents, Cherri and Edgar Dulaney felt compelled to move to a rural, isolated area where they feel better able to protect their four sons.

"I have always taught my boys that if they are honest and law-abiding and respectful, they will be safe in the community," Edgar Dulaney said. "My boys now know that this is not true. [My oldest son] learned a lot at the age of 15 that the 'community' is not always fair, and that his mother and I cannot really protect him.

"This is a fact, and it has been devastating for all of us."

APPEALING FOR HELP

The Dulaneys contacted Deirdre M. Enright, director of The Innocence Project at the University of Virginia law school, in December after appeals by Rafferty and another attorney failed to overturn their son's convictions.

Since then, The Innocence Project and Andrew K. Block, legal director of JustChildren, a program of the Legal Aid Justice Center in Charlottesville, have been working on the boy's behalf.

Angela A. Ciolfi of JustChildren and Jeremy S. Byrum of the McGuire Woods law firm in Richmond joined the team for the civil suit.

The girl's mother, Michele Sousa, also has been working to help clear the boy's name since her daughter told her in November 2007 that she lied about the accusations to avoid getting into trouble for inviting the boy into the house.

In January, Enright and Block sent a letter to Director of Juvenile Justice Barry Green asking for the teen's early release and laying out the facts they had gathered about the case.

In February, the boy was released shortly ahead of his originally scheduled date.

The attorneys are currently seeking to get the teen's convictions and sentence set aside, including the requirement that he be listed on the state's sex-offender registry. If those requests are not granted, a new trial is sought.

The suit also seeks a declaration of actual innocence.

THE INCIDENT

Sousa returned home the evening of June 4, 2007, to find the 15-year-old boy in the kitchen of her Aquia Harbour home and her 14-year-old daughter in her bedroom getting dressed.

Sousa called the Sheriff's Office, believing the boy had broken in and sexually assaulted her daughter.

The case moved quickly through the legal system.

The boy was charged three days later, pleaded guilty to two charges on Aug. 22, 2007, was sentenced Sept. 19, and was given a final sentencing hearing Nov. 19.

Five days later--over the Thanksgiving weekend--the girl told her mother she had lied about being raped. She said she had let the boy into the house and that they engaged in consensual sexual intercourse.

Within days, Sousa contacted an attorney for advice and then notified Rafferty of the girl's changed story.

But Rafferty didn't file a motion seeking to overturn the verdicts until Feb. 28, 2008, court records show.

Juvenile court Judge Julian Johnson denied the motion on procedural grounds, presumably because the motion wasn't filed on time.

The boy was originally charged with rape, abduction and breaking and entering.

After Olsen's office threatened to try the boy as an adult, Rafferty advised the boy's parents that he should plead guilty to keep the case in the juvenile system and avoid the risk of a lengthy term in an adult prison.

She never suggested fighting the charges on their merits, including the boy's innocence, the suit states.

In exchange for pleading guilty to rape and breaking and entering, Olsen dropped the abduction charge and his motion to move the case to adult court.

The boy was held in a juvenile justice facility until Feb. 25 of this year. He is now on probation.

RESPONDING TO THE SUIT

Rafferty did not return calls seeking comment about the accusations in the lawsuit.

Olsen said he has been instructed by the court not to comment on cases involving juveniles.

The Virginia Attorney General's Office is representing the Department of Juvenile Justice and has until Sept. 25 to respond to the suit. The office does not comment on pending litigation, spokesman David Clementson said.

Sousa told The Free Lance-Star she is aware of how her daughter is portrayed in the lawsuit but does not dispute the accuracy of the information.

She said she had hoped the matter would be resolved shortly after reporting to attorneys that her daughter had lied.

She regrets all that the boy's family has been through since the accusations, and said that's why she's willing to be so public.

"This cannot go on. His whole family is dealing with this," Sousa said. "We have to do what we have to do."

Pamela Gould: 540/735-1972
Email: pgould@freelancestar.com




The following information comes from sworn statements gathered by the attorneys representing the teen who is suing the state Department of Juvenile Justice in an effort to clear his name.

The mother of the girl who accused the boy of rape and later said she lied seeks to right what she considers an injustice.

MICHELE SOUSA, the girl's mother, states that Stafford Detective Gerald Lloyd, the man who investigated the allegation and questioned the boy on the date of the alleged incident, "seemed to doubt the rape allegation at the beginning. Det. Lloyd seemed to be challenging that this had happened, and it made me mad then."

Lloyd indicated that the boy said he and the girl were friends, noted that the boy "seems a little slow," and "wondered if this wasn't a 'mistake.'"

Sousa said Stafford officials were familiar with her daughter and family from incidents prior to the June 2007 allegation.

"Both Child Protective Services and the Stafford prosecutors were aware of [my daughter's] history of false accusations, because they have had to deal with our family in the past."

One such encounter stemmed from the girl's Mother's Day 2000 accusation that her father caused bruises that she had on her legs. Her father spent the night in jail, but charges were later dropped after the prosecutor's office became convinced it was a lie.

ROBERT BALDWIN, former A.G. Wright Middle School special-education chairman: "[She] lied in order to save herself from getting into trouble. Her concern for her own self-preservation led her to make damaging statements about her teachers, her parents and peers, with no apparent understanding of the negative consequences to others of her words."

"Based on my knowledge of her behavior patterns, when I first learned that [she] had accused a young man of raping her, I doubted the veracity of her accusation."

THE ACCUSED TEEN said: "I pled guilty to those crimes on Aug. 22, 2007, because my lawyer Denise Rafferty told me that I didn't have a choice."

"I did not break into [the girl's] house, and I did not rape [the girl] and I never told anyone that I did."

EDGAR DULANEY, the boy's father, said the attorney misrepresented the evidence. "When I shared my uncertainty about [whether my son should plead guilty] with Ms. Rafferty, she immediately told me that Det. Lloyd would testify that [my son] had confessed to him. Ms. Rafferty then said that Det. Lloyd's testimony, along with the DNA results, would be plenty to convince any jury of his guilt. Ms. Rafferty showed me a folder and said the Commonwealth had the results of the DNA tests, and that the results showed that it was 100 percent certain that [my son] had raped [the girl]."

A state lab report shows tests were never conducted on evidence in the case and that Lloyd told the lab on Aug. 22, 2007--the date the boy entered his guilty pleas--not to test the evidence.

DANIEL TRYON, the boy's Brooke Point High School freshman basketball coach and study-hall proctor, said he "was congenial, quiet and even-tempered throughout the four hours each school day that I spent with him. [His] behavior did not noticeably change in the presence of girls: he was not preoccupied by girls and he did not exhibit any hostile, menacing or aggressive behavior whatsoever."

He "struck me as an affable but intellectually challenged young man."

Jan. 22--Innocence Project Director Deirdre Enright and JustChildren Legal Director Andrew K. Block Jr. send letter to Department of Juvenile Justice Director Barry R. Green asking him to release boy.

Feb. 25--Boy is released from Department of Juvenile Justice facility and placed on probation.

Aug. 18--Boy sues Department of Juvenile Justice in Stafford Circuit Court.




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