The Thad Jesperson case sounds a lot like the Dale Akiki case.
C.A. Overturns Firing of Teacher Accused of Molestation
Metropolitan News-Enterprise
March 27, 2013
The Fourth District Court of Appeal yesterday overturned the firing of a San Diego elementary school teacher who served more than three years in prison before his child molestation convictions were thrown out by an earlier appellate ruling.
Justice Terry O’Rourke, writing for Div. One, said a San Diego Superior Court judge who upheld Thad Jesperson’s termination failed to give the required deference to the conclusion of a commission on professional competence that Jesperson was fit to teach and did not engage in immoral conduct.
Jesperson, who taught second- and third-grade pupils at Toler Elementary School in the Clairemont neighborhood and was by several accounts a popular educator, has fought for 10 years—through three criminal trials and an administrative hearing—to clear himself of accusations that he molested pupils during the 2001-02 and 2002-03 school years. The allegations initially involved eight students, but charges relating to four of them were dropped before trial.
The first trial resulted in his being convicted on one of 13 counts, with a jury deadlock on the remaining charges. At the second trial, he was convicted on one count, with the others resulting in acquittals or further deadlock, but a motion for new trial on the conviction was granted.
At the third trial, he was convicted on seven counts, and he was subsequently sentenced to 15 years to life in prison. All of the convictions, including the one from the first trial, were reversed in 2007, in a 2-1 decision based on juror misconduct and ineffective assistance of counsel.
Prosecutors declined to retry the case, and Jesperson requested reinstatement. The school district notified him in November 2008 that he was being formally terminated for unfitness, immoral conduct, and failure to maintain a professional relationship with students.
There was also a civil suit by one of the parents, but it was dismissed as untimely.
Jesperson exercised his right as a tenured teacher to a hearing before a commission on professional competence, made up of two education professionals—one selected by the teacher and one by the district—and an administrative hearing officer assigned by the state.
The commission, following a hearing at which one of the pupils and her mother testified, and criminal trial testimony by those witnesses was read into the record, ruled that the allegations were unproven. While Jesperson had been “physically affectionate” with pupils, including Emily A., as she was identified, “the evidence did not establish that he touched her in the manner to which she testified, or in any other manner that was immoral or a violation of district regulations or that demonstrated an evident unfitness to serve,” the commission said.
Jesperson’s lawyers, in both the criminal and administrative proceedings, contended there was no physical evidence of any wrongdoing, and that the children, who initially denied the teacher had done anything wrong, changed their stories under pressure from parents, police and social workers.
But San Diego Superior Court Judge William Nevitt, citing his three years of experience hearing hundreds of children testify in juvenile court, said he believed Emily’s testimony about being touched inappropriately.
O’Rourke, however, writing for the Court of Appeal yesterday, said Nevitt failed to hold the district “to its burden to convince [the court] that the Commission’s administrative findings were contrary to the weight of the evidence.”
The trial judge, he said, failed to give the required “great weight” to the commission’s findings regarding the implausibility of much of Emily’s testimony, such as statements that the “bad” touching occurred “everyday” and that it occurred in class when all of the students were present. Nevitt also failed to credit, as the commission had, the testimony of Connie Murphy, a special education assistant, who said Jesperson often patted students on the back, or hugged them, as a form of encouragement, that he was a good teacher, and that she never saw any improper conduct.
Murphy also recounted a conversation with a guidance aide, who had reported to the school’s principal that a parent had alleged improper conduct on Jesperson’s part—apparently the first the principal had heard of the accusations. Murphy said the aide had said she “hated” Jesperson and thought he was a bad teacher and wanted him “out of there.”
O’Rourke wrote:
“It is highly improbable that such inappropriate touching could occur on a daily basis for a period of weeks without someone, including Murphy, noticing, given the layout of Jesperson’s classroom and the presence at times of other students waiting in line behind Emily. …Emily admitted she never felt the need to move away from Jesperson and denied that his touching felt ‘weird.’ District presented no evidence that other students were inappropriately touched, or felt uncomfortable around Jesperson. Testimony is properly discarded on a sufficiency of evidence analysis when it is inherently improbable or improbable on its face….”
The case is San Diego Unified School District v. Commission on Professional Conduct (Jesperson), 13 S.O.S. 1522.
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