Jeffrey Baker - Suggestibility, False Accusation - Inadequate Defense

Baker, Jeffrey; MT; NRE: perjury/false accusation, no crime, inadequate legal defense

Suggestibility issues

300 P.3d 696; Supreme Ct. of MT 4/30/13; affirmed

"In 2006 Baker began a relationship with the mother of H.B., who was then age 2. When H.B. was age 4 she told her mother about sexual contact Baker had with her, which Baker denied. H.B.'s mother eventually moved out of Baker's residence and in 2010 H.B. told her mother that Baker touched her inappropriately. 'He touches his pee pee to my pee pee and it kind of hurts.' H.B.'s mother called the police."

[At trial, H.B. refused to discuss precisely what Baker had (supposedly) done to her. So, the tape recording of the forensic interview -- in which she did provide details -- was played for the jury.]

from NRE synopsis (by Maurice Possley):

"In January 2011, 39-year-old Jeffrey Baker was charged with sexually assaulting his former girlfriend's daughter, who was then six years old, in East Helena..."

"Baker went to trial in Lewis and Clark County...in January 2012. The girl's mother tesified that she began a relationship with Baker in 2006 when her daughter, who was identified as H.B., was two years old. When H.B. was four years old, she told her mother that Baker had sexually molested her. Baker denied molesting the girl and eventually, the mother and daughter moved out of Baker's home.

"In 2010, H.B. told her mother again that Baker touched her inappropriately. The girl's mother testified that H.B., who was then six years old, said, 'He touches his pee to my pee pee and it kind of hurts.' H.B.'s mother testified that H.B. had told her that Baker put his penis into H.B.'s mouth and took showers with her, beginning when she was four years old. H.B.'s mother said she called the police.

"Dawn Spencer, a trained forensic interviewer, testified that she interviewed H.B. Although H.B. was reluctant to talk about Baker, she told Spencer that Baker touched her 'in a bad way,' and put his 'privates' into her 'privates.'

"A videotape of Spencer's interview of H.B. was shown to the jury. In the interview, H.B. said that Baker touched her in a way she didn't like. She said she had touched his privates into her privates in the front of her body, and had put his private part inside her private part. She said that this occurred more than once in bed and in the bath. H.B. stated more than once that Baker 'touches into her' in the bath and that these things happened when her mother was not home. She said that it hurt. She drew a picture of a penis to show what had happened.

"A Lewis and Clark County Sheriff's detective testified that he interviewed Baker, and Baker denied any inappropriate contact with H.B.

"H.B. was seven years old when she testified. She told the jury that Baker was mean and that she was afraid of him, but refused to elaborate. For example, the prosecutor asked, 'And do you -- do you and your dad [Baker] have a secret?'

H.B. replied, 'Yes, but I'm not telling you it.'

"'Why not?' the prosecutor asked.

"'Because,' H.B. said.

"'Tell me why not,' the prosecutor said.

"'I can't,' H.B. said.

"'Why can't you tell me the secret?' the prosecutor asked.

"'Because,' she said.

"'Did you tell anyone what the secret was?' the prosecutor asked.

"'No,' H.B. said.

"'Never ever?'

"'No,' H.B. said. 'It's me and my mom's little secret.'

"Eventually, H.B. did testify that she had a secret with Baker, but also said she would not tell it to anyone. She did not recall the interview with Spencer and she denied drawing the penis during the interview. While she ultimately testified that Baker had touched her inappropriately, she would not be more specific other than to indicate that it was not appropriate to touch her private parts. When the prosecution asked her to indicate her private parts on a stick figure, she circled the groin area.

"During cross-examination by Baker's attorney, Martin Eveland, H.B. said she had not told her secret to anyone except her mother and that she would not tell the court either. She said that she would not tell because she was afraid.

"H.B.'s therapist testified that H.B. said that Baker 'tortured' her and did 'something gross' that she didn't want to talk about.

"Baker did not testify. On January 27, 2012, the jury convicted him of sexual assault."

"The Montana Supreme Court upheld the conviction in April 2013.

"No long after, Baker, represented by a new attorney, Palmer Hoovestal, filed a post-conviction petition seeking to vacate his conviction. Following an evidentiary heaing, Lewis and Clark County...Judge Deeann Cooney granted the petition and ordered a new trial in December 2016.

"Judge Cooney ruled that Eveland, Baker's trial atorney, had provided an inadequate legal defense. Less than two months before Baker's trial, the Montana Suprme Court's Commission on Practice put Eveland on probation and ordered him to undergo a psychological evaluation. However, Eveland never revealed those facts to Baker or to the court.

"In addition, Eveland failed to call a physician who had examined H.B. and found no physical evidence of penetration or sexual molestation.* Judge Cooney noted, 'Despite the importance and potentially exculpatory nature of the absence of such medical evidence, Eveland cannot recall why he did not present that evidence at trial.'"

[* Nickel's trial lawyer also failed to call the examining physician, who made similar negative findings.]

"Eveland also failed to investigate a series of emails that H.B.'s mother had sent to another man, which Baker had provided before trial. The emails indicated that H.B.'s mother was sending the man nude pictures of herself and that she said she would begin a relationship with him if she only had H.B. -- implying that she would start a relationship if Baker were out of the picture. Judge Cooney said that Eveland should have investigated the emails as a possible motive for H.B.'s mother to 'have implanted the idea of sexual abuse by Baker in H.B.'s mind.'

"The judge also said that Eveland 'reasonably should have retained an expert witness to testify about circumstances in which false allegations of child sexual abuse typically occur, and how the idea of sexual abuse can be implanted into the mind of a young child by another person such as the child's mother.'

"On December 17, 2016, Baker was released on bond pending a retrial. On June 26, 2017,* the Lewis and Clark [DA's] office dismissed the charge."

[* Thus, the DA left Baker 'hanging' for over six months, until finally letting him off the hook.]

[All emphases added unless otherwise noted.]