Richard Wesley conducted himself appropriately as a school counselor and child behavioral specialist at the Sixth District Elementary School in Covington, Kentucky. That’s where he used to work, before he was falsely tarred a child rapist because Covington cop Joanne Rigney, at the behest of social worker Alison Campbell, decided to destroy him.
From the 6th Circuit in Wesley v. Campbell:
Both claims arose from the same incident, in which one of Wesley’s then-students [7-year-old J.S.] accused Wesley of sexually assaulting him and two other students in an office at the school’s administrative center. Rigney waited almost three months after the student made his allegations before seeking a warrant for Wesley’s arrest and then omitted from her application a range of material facts demonstrating the unreliability of the student and his allegations. Taken together, those omissions thoroughly undermined the existence of probable cause.
The case was classic, a child got in trouble, came up with a story to shift focus to Wesley, and the story then grew legs. A neglectful mother ran with it to a social worker, who ran with it to a cop who shared her deep concern for children.
And rather than investigate, given that there existed a massive amount of evidence, physical and testimonial, that would have shown that Wesley did not, and could not, have done what the child alleged, she sought a warrant for Wesley’s arrest based solely on the child’s allegations.
J.S.’s uncorroborated allegations were legally insufficient to create probable cause. While adopting a presumption of reliability for eyewitness allegations, those cases also contain an important limiting factor: Probable cause is created only by eyewitness allegations that are “reasonably trustworthy” and thus probable cause does not exist where “there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection.”
The reasons to believe the uncorroborated allegations of a child are easy to figure out. Children are vulnerable. It’s far too easy for an adult to manipulate a child to avoid corroboration. And of course, no one wants a child to be the victim of molestation. Shouldn’t we just believe them, appreciate the reasons for lack of corroboration and forgive them their lapses? Don’t we care enough about children to let this slide?
Indeed, it appears that no federal court of appeals has ever found probable cause based on a child’s allegations absent some other evidence to corroborate the child’s story…. Indeed, some cases have expressed heightened concerns about the reliability of child-witnesses’ allegations when, as here, there are other indicia of unreliability.
As deeply concerned as we may be about child sexual abuse, it remains critical that allegations be based on reality rather than emotion.
We are, of course, all too aware of the difficulties facing police investigations into child sexual abuse. We recognize that a child-victim’s testimony often plays an important role in prosecuting the perpetrators of this serious and disturbing crime. Nevertheless, we conclude that J.S.’s young age is a factor bearing on the reliability of his accusations and that Rigney (and the district court) should have given it appropriate weight.
And due to the lack of any corroboration, the accusations fell apart quickly.
The case against Wesley fell apart soon [after the arrest]. J.S. and his mother refused to cooperate with the prosecution’s investigation, and the state’s attorney concluded that the case could not be tried. At her request, a grand jury declined to indict Wesley, and the charges were dismissed. Nearly a year later, on February 15, 2010, an administrative hearing officer summarily reversed [social worker Alison] Campbell’s finding of substantiated abuse.
The 6th Circuit held that Rigney’s failure to inform the judge when obtaining an arrest warrant for Wesley of the plethora of facts demonstrating that no rape occurred and that Wesley couldn’t possibly have committed the crime cost her qualified immunity.
For the reasons explained above, we conclude that Wesley plausibly alleged that Rigney effected his arrest without probable cause. Taken as true, Wesley’s allegations also plausibly show that Rigney is not entitled to qualified immunity, because her application for an arrest warrant contained omissions that were “deliberate … or showed reckless disregard for the truth” and were “material to the finding of probable cause.”
So the world is righted again? Not quite. Aside from the fact that Richard Wesley, a guy who did absolutely nothing to bring this down on his shoulders, will be tainted with the stench of child molestation even though charges against him were dropped, there remains the unanswered question of how this mutt of a cop got a warrant based on nothing more than the facially absurd claims of a kid with issues.
As a threshold matter, it seems clear that Rigney’s decision to withhold evidence of J.S.’s unreliability was material, because it is clearly established that witness allegations fail to sustain probable cause when there is “apparent reason to question the person’s reliability.” If the magistrate who issued the arrest warrant had known that there were, in fact, several “apparent reason[s] to question” J.S.’s reliability, precedent would have precluded a finding of probable cause, and the warrant would not have issued.
To note that a warrant application with “evidence of H.S.’s unreliability was material” is gilding the lily. No cop offers an application for an arrest warrant stating that there is no probable cause and all the evidence suggests no crime could have possibly occurred. Any judge who actually reads such an application will, of course, deny it. That’s why every warrant application is all about the reasons to grant it.
While the outcome serves Wesley’s suit, the 6th Circuit glosses over the stop-gap that’s supposed to save an innocent from arrest and ruination of his life because some avenging angel cop and social worker decide he’s evil.
A state magistrate reviewed the affidavit and concluded that there was probable cause to arrest Wesley. Sheriff’s deputies then arrested Wesley at his home, and he remained in jail until he was able to post bond.
Campbell the social worker gets sued. Rigney, the cop, gets sued. It’s not enough, but it’s all the law can do after the fact. Yet, the state magistrate who granted the warrant upon nothing more than a child’s uncorroborated claim and a cop’s say-so doesn’t even get named. Granted, he or she enjoys absolute immunity from either incompetence or malice, but not from shame.
We expect police to be wrong, whether by mistake or malice, and put a neutral magistrate between them and us. Is protecting this magistrate more important than protecting Richard Wesley from having his life destroyed by the false allegation of being a child rapist?
H/T Eugene Volokh
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On what grounds does the state judge deserve either liability or shame? She or he didn’t have any of the evidence that is the basis for voiding the cop’s qualified immunity. You don’t expect the judge to go out and start doing investigations to ensure that what the police are saying is accurate, right? There’s reason that warrants are issued on sworn statement or affidavit and it used to be because there were consequences for lying to get one. I’m glad the Sixth Circuit is giving life to that idea again.
The judge who signed off on the arrest warrant has nothing to do with qualified immunity, but with whether probable cause exists for arrest. What the judge should require is evidence, not the uncorroborated accusation of a 7-year-old. When the affidavit fails to provide evidence, then the judge doesn’t sign the warrant. That’s the job.
Magistrates can ask questions of the officer, too. I’ve known a couple who would do that. The warrants they signed usually ended up being bulletproof. Once the cops figured that out they quit complaining about sitting in chambers being questioned for an hour when asking for a warrant.
The good ones ask questions. The lazy ones take the content of the affs at face value. The incompetent ones trust that the cop wouldn’t ask if she wasn’t right, and the malicious ones just sign regardless.
Sorry for the late reply. I agree with what you think the law should be but I don’t think your reading reflects reality. Assertions of fact and bare evidence given by witnesses or “victims” has been enough to create probable cause and even overcome directed verdicts for a long time. “I saw Billy Joe with that girl who was too young for lovin'” is enough to get to a jury on. Even if both deny.
Regarding the NC thing, that sucks that happens there. In Kentucky a district or circuit judge or trial commissioner has to sign off on a warrant and all of those people have to be attorneys with varying years of experience.
One last time: this is about a warrant issued upon uncorroborated accusations of a child witness. Note the words “child witness.”
Next, that’s what the law is; that it doesn’t always work that way is the problem. That’s why we should shame judges who don’t do what the law requires. Yes, judges often do wrong. That’s what we try to change, the wrong stuff judges do.
Am I the only one who is not convinced that this is true?
Maybe the guy who included that in the post thought so, and put it in there for that reason. Maybe.
Mea culpa, mea culpa, mea maxima culpa.
I replied while still not entirely awake. I was stupid, and did not retain the entire post.
I am – sincerely – mortified.
Finally, we have a new name for you: Mort. Govern yourself accordingly.
This seems like the right time to note that your name anagrams to “dim janitors”.
“Consistent with J.S.’s description, [Rigney and Campbell] also found that Wesley’s office contained a window and a blue table. ”
Maybe they thought they had corroboration under Navarette.
Does that make any sense whatsoever to you? Think hard before you answer.
Swing and a miss on my attempt at humor.
Ah. Well, it may have flown over my head, but I see it now.
I laughed.
If you believe the magistrate should be shamed, why did you leave out his name in this post?
… Ok, I tried to find it with no luck. more than 15min digging required.
Apology accepted.
When I see appellate judges talk about review by a “neutral and detached magistrate ” as some kind of safeguard, I cringe. Federal magistrate judges, in my experience, are generally neutral and detached. State magistrates, at least in my state (N.C.), not so much. State magistrates are generally not lawyers. The only formal training required is attending a four-day training course within a year of appointment. They are usually housed in offices at local jails and perceive themselves as aligned with law enforcement. Probable cause determinations for felonies are based solely on a verbal summary from the law enforcement officer. It is is not recorded or reduced to writing. I’ll bet many have never found no probable cause.
When I see comments like yours, I cringe.
Why would you write this? We don’t know who signed off on the warrant in Covington, Kentucky. We don’t know if it was actually a mag or a judge (as the 6th Cir. might be using the word used in the Fourth Amendment rather than a specific title), or if the person was a lawyer or a non-lawyer. Yet, a non-lawyer might read your comment and wrongly assume that warrant are “generally” approved by non-lawyers.
You make two mistakes: First, that your experience is the norm. Second, that what happens in your state happens in another state. This is a Kentucky case, not a North Carolina case, so what happens in your state is irrelevant to what happened here. Please, try not to make people stupider.
Policewoman would have been in a more favorable legal position if she had gotten the warrant prior to any investigation on her part. She might also be in a more favorable legal position if she skipped the investigation, skipped the warrant and arrested based on exigent circumstances / emergency exception.
Ignorance always provides greater latitude to law enforcement.
How sufficiently trained was Rigney to deal with kids? [Has she even heard of McMartin preschool or Wenatchee witch hunt?]
“On April 27, 2009, pursuant to the procedure of the Kenton County Commonwealth’s
Attorney, Rigney submitted an affidavit in support of an arrest warrant for Richard Wesley
to Assistant Commonwealth Attorney Stefanie Kastner Durstock. (Doc. # 81 at 30).
Durstock reviewed and approved the affidavit, and then had Rigney sign the affidavit before
a notary public. “
Another name properly added to the roster of people blameworthy: Assistant Commonwealth Attorney Stefanie Kastner Durstock.
Sad Irony #1: The counselor likely left his office door open intentionally, so as to prevent these sorts of allegations.
Sad Irony #2: J.S. may now “remember” being molested because of the
detective’s and social worker’s questioning and cueing and reinforcing.
Small typo: ‘Gilding Jthe lily’.
Thanks. Fixed.
There are mistakes, then there is emotional bias. Unfortunately, I am learning day by day, that the later rules.
Rational thought gives people headaches, plus prevents them from doing what they really want to do. Visceral reactions are much easier and, once indulged, because every bit as real.
Curtis: I think you meant the ‘latter’ rules. SHG: I think you meant ‘becomes’ every bit as real. Thank the tsars I’m not an atornee and I can spell!.
First, if you want Curtis to see your reply, then you need to use the reply button. Second, we don’t worry about typos in comments. Thanks for noting, but let it go.
Thank you Eugene for the post..and the rest of you for the support! I am Richard’s attorney and it has been an uphill battle since I took the case more than 5 years ago. From my end, we have had to fight for every school record, every social worker’s report, even the DVD of J.S.’s interview took months to obtain..only to have the entire case thrown out by the Federal District Court! From Richard’s perspective, his life will never be the same. This man put himself through college and then obtained his Masters by working at fast food restaurants. He mentored children throughout his life and finally had obtained his desired job as school counselor just a few months prior to this fiasco. He has not worked in that capacity since he was removed from his job on February 5, 2009, the same day J.S. made his false allegation. His case was not fully expunged (from both the social worker’s list of offenders and the criminal charge) for nearly two years. Try explaining that hole in your resume for a man who has always worked with children! Since that date he has moved 3 times and worked a variety of jobs from Burger King to Hospice care. It is heart warming to read a blog supportive of our case when support has been so rare. Richard and I look forward to finding 12 jurors that can also understand why what happened here is SO wrong.
Paul J. Hill
Glad you found the post worthwhile, and happy to lend whatever support we can offer to your client’s cause.
And while many say we look alike, I’m afraid you will have to thank Eugene at his blog, the Volokh Conspiracy. Alas, this one’s mine.