Saturday, July 20, 2013

Teacher Thad Jesperson gets his job back: Court of Appeal supports OAH decision, overrules Judge Nevitt

See all posts re Thad Jesperson.

Judge Reverses Firing of Teacher Tried for Molestation
March 29, 2013

A Fourth District Court [of Appeal in California] judge on Wednesday overturned the firing of a San Diego teacher who spent more than three years in prison after being falsely convicted of molesting second and third grade students.

In a written ruling, the judge noted that officials at Clairemont's Toler Elementary School acted erroneously when they terminated Thad Jesperson's employment in November 2008.

Jesperson was arrested in April 2003, tried three times and ultimately convicted on seven counts of molestation. He was sentenced to serve 15 years to life in prison but was released in 2007 because of misconduct on the part of jurors and ineffective assistance from his own attorney. All convictions were overturned and Jesperson asked Toler Elementary officials to reinstate him.

The school denied his request despite the overturning of all molestation convictions and a ruling from a commission on professional competence that Jesperson was fit to teach and that "the evidence (in the case) did not establish that he touched (one of the students who accused Jesperson of molestation) in the manner to which she testified, or in any other manner that was immoral or a violation of district regulations...".

The Education of Mr. J.
San Diego Magazine
May 2008

THE YOUNG THUG’S SHAVED SKULL bore a tattoo of a gargoyle holding the severed head of Jesus. He approached in slow motion, swinging his head side to side, muttering expletives. His target, Thad Jesperson, sat motionless in a corner of the jail cell reserved for snitches, gays and child molesters. The ex-teacher’s eyes were wide with terror, his ears ringing with screams from adjoining cells: “Get him! Kill him!” His nightmare—that he would not get back home safely to his family—was playing out.

The kid growled something about “Chester,” jail slang for a child molester—the worst label for an inmate. He kept coming.

Jesperson, a devout Christian and pacifist, realized that in the next moment he had to somehow convince this advancing, irrational force of something Jesperson and his attorney had failed to make clear to jurors: that he was not a molester; that he had never harmed a child.

Now others lined up, awaiting turns to impress the cheering section. Hyper-alert, Jesperson saw from the way the kid was balanced that he would swing with his right, a shot straight to the face.

Thad Jesperson knew in his heart he didn’t belong behind bars. But he had no choice now except to deal with it.

KIDS, PARENTS AND TEACHERS at William P. Toler Elementary School in Clairemont Mesa knew Jesperson as Mr. J, a fond moniker for a man many described as an immensely popular, innovative teacher. Toler was small, a few hundred students, about a third of them Hispanics bused in from the South Bay.

When first questioned, each of the girls who would later accuse him denied Mr. J had touched them inappropriately. But after repeated questioning by police detectives, parents, social workers, district attorney’s investigators and other students, the girls’ stories changed. Experienced molestation interviewers say that turnabout is not uncommon.

Concern among Toler parents was spurred by letters sent home saying a teacher was suspected of molesting students. The letters urged parents to question their children, a red flag to many child-abuse experts. In high-profile false-accusation cases a generation ago, badgering by parents and misguided therapists led to fantastic stories by youngsters of not only sexual abuse but also blood rituals and animal sacrifice in classrooms. The notorious Dale Akiki prosecution in San Diego and the McMartin Preschool case in suburban Los Angeles were two of the more famous among at least 100 such “witch hunt” prosecutions across America.

San Diego District Attorney Bonnie Dumanis vigorously defends the decision to prosecute Jesperson. She says lessons learned from the phony case against Akiki provided safeguards against false allegations in the investigation at Toler Elementary School.

Dumanis says the Jesperson case was vetted by a panel of experienced prosecutors. Her team decided the girls’ statements were strong enough to convince jurors of guilt beyond a reasonable doubt. The prosecution’s ultimate success on that score was decidedly mixed, however.

As prosecutor Tracy Prior, an 11-year veteran in the Family Protection Division, told the court, the “entire case rides on the backs of 9- and 10-year-olds.” There was no corroborating evidence, and there were no independent witnesses against Jesperson. The issue of suggestibility played a prominent role at trial.

At the time of his arrest in April 2003, Jesperson had no criminal record. The defendant, who has a master’s degree in education, came relatively late to teaching. Born in San Diego in 1964, Jesperson spent two years in South America (starting at age 20) as part of a mission with the Mormon Church. For five years, until he was 28, Jesperson owned a carpet-cleaning business. Then he decided to enter the classroom.

Married for 20 years, Sydney and Thad Jesperson have two sons and two daughters. The four kids, who range in age from 11 to 19, passed a number of significant milestones while their father was behind bars; Jesperson participated as best he could over a prison phone line and by mail.

The genesis of most of the accusations, according to court documents, came on a December day in 2002, after Jesperson walked past and said hello to five girls gathered in the schoolyard.

“Third graders Michelle, Kelcey, Dreanna, Renee and Vanessa were talking when one of the girls mentioned that [Jesperson] had touched her leg and back the previous year and that it felt ‘uncomfortable,’ ” is how one court brief put it. “Kelcey said [Jesperson] had touched her shoulder. Vanessa, who was never in any of [Jesperson’s] classes and made no accusations, testified she told the girls that such touching was ‘child molesting.’ ” She’d learned about it “on a TV program called Law and Order. ”

Michelle reported the conversation to her mother, who does not speak English. The distraught mother sought out a woman at school whom many Hispanic parents considered to be a counselor. In fact, Nellie Goodwin was the “bus lady,” a part-time employee who shepherded kids from buses and helped supervise at recess.

When Michelle’s mother told Goodwin her daughter talked with friends about Jesperson touching them, Goodwin responded: “This is not the first time we’ve had a report about this teacher. I don’t know why he is even here; he is not a good teacher.” Then Goodwin started crying and told the mother not to repeat what she had said. Goodwin, according to court testimony, said she would look into the matter; the mother would be called by the end of the day. When that call didn’t come, Michelle’s mother called San Diego Police.

Kimberly Newbold was assigned to the case. The young detective decided to interview only the girls who had been in Jesperson’s class because, she later testified, “I was looking for victims.” Despite the girls’ initial denials about “bad touching,” the questioning did not stop.

MOLESTATION ACCUSATIONS emerged and evolved through Jesperson’s preliminary hearing and his trials. They included that he rubbed girls on their thighs and backsides during reading sessions in front of the class.

Most of the alleged fondling was done through their clothing, the girls testified. But some eventually said he pulled down their underwear, or removed their “nylons,” in order to touch their “private parts.” There was no allegation of penetration, rape, oral sex or any type of act more serious than fondling.

The abuse was alleged to have occurred in a busy classroom where teachers, school staff and parents came and went freely, often to use computers. During much of the period in question, an aide to an autistic student was present in Jesperson’s class; neither she nor any other adult ever saw him inappropriately touch a child. Classroom doors and blinds were open, according to testimony, and Jesperson commonly sat in plain view at the front of the class, usually next to students he was helping learn to read.

Jesperson and his trial attorney, Robert Boyce, said the idea that a molester would choose such a setting for his crimes made no sense. But D.A. Dumanis said a molester might well operate in plain sight in order to later make that argument.

The fact that no pornography was found on the ex-teacher’s school and personal computers was an example of the prosecution trying to turn something positive for the defense into a liability, according to Jesperson’s attorneys. Prosecutor Prior emphasized to jurors that a school colleague of Jesperson’s had erased personal files and e-mail from the hard drive of Jesperson’s work computer after he was arrested and fired. “And it’s [pornography] gone forever,” Prior said in a closing argument. “There is no child pornography . . . We would never have known, because it’s now gone forever.”

But Jesperson’s lawyers noted it was routine to erase school computer files once an employee leaves. Besides, FBI investigators were able to restore 90 percent of Jesperson’s school hard drive (his home computer had not been erased), and no pornography of any kind was found.

The four kids, who range in age from 11 to 19, passed a number of significant milestones while their father was behind bars.

JESPERSON BELIEVES now the case against him was the result of two basic dynamics: the bruised feelings of a few girls from his previous second-grade class, and the bruised ego of Nellie Goodwin.

Prior to the 2002-03 school year, Jesperson had been assigned to teach the GATE (Gifted and Talented Education) third-grade class, for which students must pass an aptitude test. Some of his second-grade students, including Michelle, who made the original molestation allegation (and who had not qualified for the GATE class), approached Jesperson again and again on the playground, pleading to be in his class.

Several Toler staff members testified they had seen the girls constantly pestering Jesperson. One day late in the fall, Jesperson said, he felt especially awkward because the girls were “begging to be in my class” as he was standing next to the teacher whose class they were in.

“In what I thought was a rather stern demeanor, she said to them, ‘Don’t you get it? You can’t be in his class.’ And she said something along the lines of ‘He doesn’t want you in his class.’ It made me feel very uncomfortable; I did not want to hurt their feelings,” Jesperson said. “By the same token, it was a relief. After that, suddenly they were no longer coming up and bothering me.”

Then, at a Christmas assembly, Jesperson was asked to pass out about 20 jingle bells among more than 80 kids. Michelle was skipped over, he said, and was clearly angry. From then on, Jesperson said, her demeanor toward him changed.

“Her body language in the hallway said, ‘I don’t like you anymore.’ ” He recalls the day he said hello while walking past Michelle and the other girls. “It was clear something bizarre was happening. I saw them looking at me and whispering, and I remember thinking, ‘That can’t be good, whatever is going on there.’ ”

Jesperson, who says, “My heart goes out to those parents,” noted that when Michelle’s mother sought counsel from Goodwin, the schoolyard aide was apparently primed to disparage him. “During one of the first meetings after I came to the school [in 1998], long before any of this came about, the principal asked me to translate for the benefit of Spanish-speaking parents and kids,” he says. “I’m going around the halls speaking Spanish to these children. For me, it was one more way to interact and make my job fun.”

Translating for the principal? Interacting with Spanish-speaking parents and students? That’s what Goodwin did.

“It seems,” Jesperson says, “that I had encroached on Nellie Goodwin’s world.”

IN APRIL 2003, Jesperson was arrested, then released on $100,000 bail. Trial began the following March on 13 counts of molesting eight girls. Emily, who came forward only after the school sent the warning letters home, said the touching was over her underwear but inside her pants on the back area of her private parts.

Court documents show Emily had at first said only that Jesperson patted her leg after helping her tie her shoes. The seven other girls described various touching episodes; their parents testified about what their daughters had told them. Detective Newbold, who did not re cord her interviews, testified, as did hospital social workers, whose videotaped interviews were entered into evidence.

Aside from a parade of character witnesses, the cornerstone of Jesperson’s defense was that the children’s inconsistent, sometimes improbable, stories were the result of suggestibility.

Alison Clarke-Stewart, a professor of psychology and social behavior at the University of California, Irvine who is an expert on child suggestibility and memory, was not allowed by the court to give her opinion. Instead, the professor testified that children are more susceptible to suggestibility than adults, and if they are led to believe that someone is “a bad person,” they will reinterpret innocuous actions as inappropriate.

But in an interview, Clarke-Stewart was unequivocal about her conclusions. “I absolutely do not believe this man did any inappropriate touching with these children,” she says. “Much of it was a congratulatory thing, a pat on the leg, an arm around a child where, because he’s so large, his hand may have extended to the outside of the hip or leg. I thought it was pretty clear what happened in this case.

“The kids and parents [thought] something bad happened at the school. The girls talked a lot among themselves; contamination was likely here. Parents are in no position to do this kind of questioning—they are not trained, and they have an obvious conflict of interest. That letter [from the school to parents] was a very bad idea.”

Clarke-Stewart says she did not believe the questioning at Children’s Hospital was egregious, though. “In San Diego, people are very aware of leading children in questioning, because of previous cases, like Akiki,” she says. “Suggestibility is more subtle these days.”

A main problem: Interviewers offered children no innocent alternative explanation for Mr. J’s occasional pats on the back or leg, she says. “It was only viewed as molestation.”

The second prong of Jesperson’s defense involved personality evaluations. Forensic psychologist Clark Clipson examines sexually violent predators for local courts and usually testifies for the prosecution. Clipson, who was hired by Boyce, has evaluated hundreds of sex offenders, including many teachers.

“I felt much more strongly about this case than I do about most,” says the soft-spoken Clipson. “I saw nothing to indicate this man is sexually attracted to children in any way. He came out with a very clean psychological evaluation.”

The jury in the first trial found Jesperson guilty on a single count involving Emily. Jurors either voted for acquittal or were unable to reach verdicts on the 12 other counts. They did reach a verdict, however, on the allegation that he had abused multiple victims: That was not true, the jury said.

With the conviction, Jesperson’s bail was revoked, and he went to jail. Prosecutors prepared to try him a second time on the hung charges.

WHEN THE KID with the gruesome tattoo on his skull swung with his right, Jesperson threw his left arm up and blocked the blow. Then he stood to his full 6 feet 4 inches, held the attacker at arm’s length and said: “You don’t know who I am.”

“You mean you’re not a Chester?” the kid said.

“No,” Jesperson replied, “I am definitely not a Chester. I am a father of four children, been married for 20 years, and my only objective is to get home safely. You have no worries with me.”

With that, the situation was defused. It turned out to be Jesperson’s only violent confrontation behind bars.

Early on in county jail at Vista, Jesperson says, he encountered a 300-pound, heavily tattooed lifer named San Quentin Steve “who scared me to death.” But San Quentin Steve befriended him on the spot, Jesperson says, telling him it was obvious he did not belong there. The convicted killer and former addict then proceeded to teach him how to survive.

Jesperson believes San Quentin Steve was an angel sent by God.

“Basically, he said to hold my head up high, no matter what,” says Jesperson. “He said respect is something that is earned and I would ultimately be judged by who I was, and that regardless of what was being said about me, I knew in my heart who I was . . . the rest would work itself out. And he was right.”

During nearly four years in county jails and state prisons, Thad Jesperson saw stabbings and beatings, riots and lockdowns. He spent almost 100 days in solitary confinement “for my own safety.” He was denied visits by his children, even though a judge had approved them.

While Jesperson was locked up, his daughter Lauren, now 19, learned to drive, graduated from high school, had her first dates and became an independent, working college student. His daughter Sherie, now 18, was voted homecoming princess at her high school, was elected junior-class president and accepted at two universities. His son, James, now 13, took up the clarinet and soccer, qualified for his Eagle Scout badge and won several writing awards. And youngest son Thomas, 11, finished elementary school, joined a soccer team, learned to play the saxophone and guitar and embarked on his own Boy Scout career.

In addition to working on her husband’s defense cases and interacting with hundreds of supporters, Sydney Jesperson built a home-based accounting career. Those skills came in handy as three trials devastated the family’s finances. Donations from church members, family and hundreds of friends are what sustained his family, Jesperson says, enabling them to keep their house and keep the kids clothed and fed.

Jesperson’s second trial mirrored his first. Jurors struggled with the case, eventually convicting him on a single count while acquitting him or disagreeing on 10 others. Their lone conviction was vacated by the trial judge, who ruled juror bias had tainted the verdict.

In his third trial, however, Jesperson was found guilty on seven counts of molesting four of his former students. In February 2005, Superior Court Judge David Danielson sentenced him to 15 years to life in prison, with no possibility of parole for 12 years.

Jesperson, who had refused to discuss plea-bargains that may have gained his freedom earlier—one huge concern was having to register as a sex offender and not being able to be around children ever again, especially future grandchildren—vowed to rely on his faith in God, the love of his family and many supporters and the positive bonds he had forged with several prisoners, to see him through. Steeling himself for the ordeal ahead, he said he dared not hope an appeal filed on his behalf by esteemed San Diego attorney Chuck Sevillia would bear fruit.

ON THE MORNING of September 15, 2007, Jesperson walked into the visitors’ room at Pleasant Valley State prison in Fresno County, took one look at his wife, his sister Shauna and her husband, Dave, and “my good friend Mike, the parent of two of my former students,” and knew immediately something was up. They were allowed to step out onto a private patio, where Sydney told her husband the news: In an 80-page ruling, a state appeals court had overturned his convictions on grounds that he did not get fair trials due to juror misconduct; failures by his attorney, Robert Boyce; and mistakes made by his trial judge.

“Sydney held both of my hands and, looking into my eyes through tears of joy, said, ‘Thad, all eight counts have been re versed,’ ” Jesperson recalls. “It was as if a rush of wind went through my whole body. My legs began to give way as my dear wife held me. I did my best to retain the tough-prisoner facade I had become accustomed to—there is no crying in prison—as an incredible feeling of joy washed over me.”

In mid-December, when Jesperson was released on bail pending new charges and a possible fourth trial, more than 300 family members, neighbors and friends crowded his cul-de-sac. They carried welcome-home signs and candles and sang Christmas carols.

A month later, District Attorney Bonnie Dumanis decided against trying him a fourth time, saying it was time to “spare these brave children” the ordeal of having to testify again.

The dismissal hearing, hastily arranged late on a Friday afternoon, played out in a near-empty courtroom. Prior made one last impassioned speech about how “36 jurors across three trials” had declared Jesperson a child molester, words that rang specious and hollow in light of the ruling by the appeals court. Boyce accepted the dismissal of all charges, speaking not a word for the record in Jesperson’s defense.

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