Lois Henry

Saturday, Aug 02 2014 08:30 PM

LOIS HENRY: How many ways can you botch an assault response?

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    In a screenshot from a surveilance video, investigators followed a girl, who was the center of a lawsuit against the Kern High School District, into a Bakersfield Wal-Mart during a 2013 class trip.

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    In a screenshot from a surveilance video, investigators followed a girl, who was the center of a lawsuit against the Kern High School District, into a Bakersfield Wal-Mart during a 2013 class trip. The investigators concealed the camera in a shopping cart as she walked through the store with classmates and Kern High School District personnel.

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By Lois Henry

There's so much wrong with how a possible sexual assault at a local high school was handled, it's hard to know where to start.

In October 2009, an Independence High School teacher's aide found two autistic teens in a school bathroom naked from the waist down, with the boy pressing against the girl from behind, his hands on her hips. The girl was crying, screaming by some reports.

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TO THE TAPE

One of the more disturbing aspects of how SISC defended this case was gathering of photographic “evidence” that the girl had not suffered any long-term harm from the 2009 bathroom incident.

That included videotaping the girl as she went on a field trip to Wal-Mart with her class in October 2013. The video wasn’t used at trial, though it was listed as evidence and could have been shown. (See video, obtained with permission from her parents, at the bottom of this column.)

It wasn’t used only because SISC attorney Leonard Herr said he felt he had enough still photos to prove his point that “the girl wasn’t sullen,” as her family had described her after the incident. “She was smiling, happy.”

He defended following and videotaping the girl as a standard practice for insurance defense when someone claims an injury.

“What I wanted to try and find out was how she acted in public,” Herr said. “Was she happy?”

The incident occurred in October 2009. She was followed and taped four years later. The tape goes on for a creepy 16 minutes showing the girl and her classmates and teachers getting in and out of a van. Then the investigator follows her, taping through the bars of a shopping cart, as the class browses in Wal-Mart.

Aside from the fact that I highly doubt you can gauge the level of someone’s emotional trauma by watching them in Wal-Mart for a quarter hour, there’s a serious “ick” factor to stalking a disabled girl.

The father of the girl brought the tape to a KHSD board meeting in June and asked, “Where’s the decency?”

Trustees didn’t answer. But I think they owe us all an answer.

The still photos, by the way, were taken by the girl’s teacher, Gary Green — in spite of strict standing orders from the girl’s parents never to photograph her — and, apparently, given to Herr.

Adding insult to injury, KHSD sent a letter June 23, 2014 denying the girl’s father’s request that the district inform the family beforehand if anyone comes to the school to observe or interview the girl. In the letter, KHSD says the girl is now over 18 and is in charge of making her own decisions.

“What type of logic are these people using?” the father asked, exasperated. On one hand the district, via its attorney, claims the girl is so mentally disabled she wouldn’t be harmed by a possible sexual assault. On the other, the district has now stated the girl has the ability to take control of her own legal and educational rights.

“It’s crazy,” the father said.

WHAT TRUSTEES SAY

Though Kern High School District trustees weren't consulted about how to defend a lawsuit over a possible 2009 sexual assault involving two severely mentally disabled teens, I wanted to know how they felt about the case.

The boy and girl were found in a bathroom with their pants off, the boy's hands on her hips, pressing against her.

Attorney Leonard Herr said the girl was not sexually assaulted, and that she didn't have the mental capacity to comprehend the act as a sexual assault nor develop longterm harm from the incident.

I contacted the KHSD trustees. Only Martha Miller spoke with me at length about Herr's statements.

Miller, a retired teacher and mother of a disabled child, was personally offended by the defense.

"It was not an appropriate comment to make," she said, "that she is so low functioning she wasn't harmed. That's offensive."

Board President Chad Vegas spoke with me briefly to say that the board would be looking at exactly how the defense was handled in closed session at its meeting on Monday. If Herr's comments, as portrayed by coverage in the paper, are true, he said, they would be "abhorrent."

"I and (Trustee Bryan) Batey have both requested that we get a full accounting of what was said in court," he said. "We want to know exactly what the attorney said on our behalf."

SETTLEMENT, NO SETTLEMENT?

The family of the girl who may have been assaulted in 2009 in a bathroom at Independence High School said they accepted a mediated settlement of $225,000 in March 2014 before the second trial got underway. But the defense declined the settlement.

I asked Robert Kretzmer, director of the property and liability division of Bakersfield-based SISC (Self-Insured Schools of California) about the settlement and why it was declined.

Kretzmer confirmed he was "not in favor of accepting the conference judge's proposal for settlement in that amount" but asked SISC's attorney, Leonard Herr, to explain the details.

In an email, Herr said: "To begin with, at no time did plaintiff's legal counsel state, suggest or imply the case could settle for $225,000. Nor, has any judicial officer or mediator ever stated, suggested or implied the case could settle for less than $1 million."

He laid out a chronology starting in 2010 listing various amounts offered back and forth, hearings and other events such as receiving DNA testing. I was confused by some of the terminology and asked for clarification.

Herr did not respond.

I shared Herr's statement with plaintiffs' counsel Ralph Wegis and asked whether there was ever an actual settlement or if his clients had misunderstood.

Wegis shared with me an email from Kern County Superior Court Judge Charles Brehmer to Wegis dated March 10, 2014 in which Brehmer lists $225,000 as his "mediator's proposal" to settle this case.

Wegis responded to Brehmer by email on March 28, 2014, at 9:20 a.m., saying he had been authorized by the family to accept the proposal.

Brehmer responded the same day at 3:25 p.m. saying, "Unfortunately, the defense did not accept."

I'm not sure what I'm missing, but it looks like this case could have gone away for $225k, rather than the $1.5 million awarded by the jury in May.

Meanwhile, Kretzmer responded to my request for clarification from Herr saying: "There continues to be inaccurate and inconsistent information being gathered related to the Jane Doe matter."

Because SISC might still appeal, he didn't want to go into these kinds of details further.

I let Kretzmer know about Judge Brehmer's email, which seemed to me to describe a settlement proposal.

Kretzmer said that while he appreciated the challenges I was facing trying to get accurate information, he had to "respect the integrity of the litigation process" and couldn't comment.

HOW SISC WORKS

The KHSD, like many other school districts, is insured through Self-Insured Schools of California.

When a claim is made against a district, it is immediately referred to SISC, explained Rober Kretzmer, director of SISC's property and liability division.

An adjuster evaluates the claim and makes a recommendation to the district to approve or deny it. If it's denied and the claimant sues, SISC handles all aspects of that lawsuit, including hiring the attorney, paying for experts and deciding whether to settle. SISC adjusters are involved in every aspect of the case and sit with the attorney at the defense table in court.

Kretzmer said that if a district objects to how SISC handles a lawsuit, SISC would take the district's concerns under advisement.

However, SISC has ultimate authority over the lawsuit.

COSTS

So far KHSD’s insurance company, SISC, has spent $588,654 defending the district in a case where two autistic teens were found in a bathroom naked from the waist down at Independence High School in 2009.

SISC has yet to receive an outstanding bill from one of the experts its attorney used in trial.

A total of $505,689 was paid to the office of SISC’s attorney, Leonard Herr. And $82,965 was spent on other legal services, such as court reporters, transcription services, etc.

Those costs include the previous trial, which ended in a mistrial in 2013, and the most recent trial, which ended in May with a verdict of $1.5 million against the district.

CHANGING STORIES

The key witness to the Oct. 15, 2009 bathroom incident was teacher's aide Matthew Hoyt.

Here are the various tales, edited for length, he told about what he saw and heard.

* Oct. 15, 2009 , 6 p.m. email to school administrators

Hoyt wrote that he realized the boy wasn't in the classroom. Then realized the girl wasn't back from the bathroom. "So I ran next door." As he entered the adjoining classroom on the way to the bathroom, he heard the girl make a "cry type noise." He wrote there was nothing unusual about it, but felt he needed to enter the bathroom. That's when he saw the boy behind the girl, his hands on her hips, both naked from the waist down and "their bodies were touching when I first opened the door."

He yelled and the boy pulled up his pants and ran away.

The girl sat down on the toilet, "covered her ears and was talking loudly."

* Oct. 15, 2009 , 10:30 p.m. phone interview with BPD officer Michael Ko

Hoyt said he noticed the boy missing and headed to the bathroom area when he heard the girl make a "whining sound." He entered the bathroom and saw the boy pressing up against the girl with his hands on her hips. Both had their pants and underwear "completely off." Hoyt said he saw the boy's penis touching the girl's buttocks. It did not appear the boy's penis was erect and didn't look like the two were engaged in sexual intercourse.

He yelled, the boy ran and the girl "immediately sat down on the toilet and began crying."

* Nov. 25, 2009, interview with BPD Det. Keli Reed.

Hoyt said the girl left the classroom, then he noticed the boy wasn't in the classroom. He went to the other classroom and heard a noise coming from the restroom that he recognized as a sound the girl often made. Reed reports that Hoyt said "he had a feeling that something was not right" and opened the restroom door.

He saw the boy behind the girl, his pants and underwear down, with his groin pressed against the girl's buttocks. The girl was bent over in front of the boy.

He yelled, the boy ran and Hoyt said he noticed the boy's penis was flaccid as he moved away.

The girl then sat on the toilet and "held her head in her hands as she rocked back and forth."

* Deposition, 2012

Hoyt said he noticed the boy missing and immediately realized the girl wasn't back from the restroom. He went to the other classroom, not at a run, but a fast walk. He heard a noise, a crying sound, or stimming, something autistic children do to self-regulate.

He said he never told the cops he heard a "whining" sound. He also denied telling the cops he saw the boy pressed against the girl.

He said the boy's hands were on the girl's waist, not her hips, that the boy's penis was not touching the girl's buttocks and that when he opened the bathroom door, the boy was standing behind and a little to the side of the girl.

Yes, he said, he told the cops the girl sat on the toilet crying but what he meant was the "stimming" sound.

* Testimony, 2014

Hoyt noticed the boy missing and saw that the girl hadn't come back yet and went next door "as swiftly" as he could. He heard the girl making a sound in the bathroom and opened the door where he saw the two with their pants down.

He said that by using the word "run" in his initial email in 2009, he meant only that he went quickly, but not as fast as he could. He said when he opened the bathroom door the girl wasn't making any sound and that he never told police he felt "something was not right."

He said he did not see the boy pressing against the girl's buttocks and never said that. He denied ever saying the girl was bent over in front of the boy. He said he told teacher Chris Herstam only that the boy's "hands were pressed up against her" not that the boy's groin was pressed against her.

By "bodies touching" in his 2009 email, he testified that he meant the boy's hands were on the girl's hips.

He denied telling the cops the girl was making a crying sound or that he said she sat on the toilet and cried.

Vanessa Chavez

In her 2012 deposition, special ed teacher Chavez related what Herstam had told fellow teacher Kathy Young.

Herstam told Young he and Hoyt were at their desks a whole classroom away when they heard screaming, Chavez related.

He said the girl and another student were in the bathroom together "and we heard them screaming, we heard (the girl) screaming so we ran in," according to Chavez's retelling of what she heard from Young.

The boy was behind the girl and their pants were down and the girl continued screaming until Hoyt separated them.

PREVIOUS PROBLEMS

The autistic boy involved in this incident was 14 in 2009 when he attended Independence High School.

Bakersfield Police Department Det. Keli Reed noted in her report that he had been involved in two similar events in the past and both were related to his "inappropriate behavior.

She listed two case numbers, which I ran by BPD, but they could not tell me much since the boy was a minor.

The first incident occurred Sept. 3 and Sept. 4, 2006, and the second happened Oct. 11, 2006.

Neither happened at a school site.

Both cases came to BPD from Child Protective Services. One of the cases involved an adult and a charge of child cruelty. It was "dismissed in furtherance of justice," according to the Kern County Superior Court website.

In the other case, the boy, then about 11, was considered a perpetrator but I wasn't told the charge. That case was closed, according to BPD.

Nothing indicates either instance was ever reported to a school or school district.

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Practically from the moment the aide whipped open that bathroom door, the bungling began. No one from the school called police. The girl wasn't seen by a nurse or doctor. The kids were kept together in the same classroom and even sent home on the same bus together. The girl's parents weren't called until nearly five hours after the incident.

Unbelievable.

For me, though, the ultimate sputter moment came when I read that the attorney defending the Kern High School District in a lawsuit over the incident claimed that whatever happened in the bathroom (the district denied it was a sexual assault), the girl didn't have the mental capacity to understand it as a sexual assault; therefore she wasn't haunted by it and didn't suffer any lingering emotional harm.

Are you kidding me?

Under that theory you could do pretty much anything to an autistic person and it'd be no harm, no foul, which is, of course, ridiculous. I can kind of see why the attorney, Visalia-based Leonard Herr, went that direction, though.

As soon as the lawsuit was filed back in 2010, the district accepted responsibility for the incident. It admitted right up front that its employees should have done a better job keeping an eye on the kids so they didn't end up in the bathroom together.

All that was left to hash out was the harm suffered by the girl.

Herr had to try to reduce the perceived harm, and thus any judgment against the district. Over the course of the two trials (the first one ended in mistrial in 2013), Herr aggressively pursued the no-harm defense.

"It's like a 3- or 4-year-old running around the house naked," Herr summed up. "They do not perceive it as (sexual)."

His strategy backfired in May when a jury awarded the girl and her family $1.5 million in damages.

About $200,000 of that is specifically for the girl's future therapy as the family has said the incident left her an emotional wreck, causing her speech and other functions to regress. The rest of that verdict was general "pain and suffering," suggesting the jury felt KHSD really blew it on this one. (The Californian doesn't identify victims of sexual assault, or possible sexual assault.)

Now that there's been a verdict, you may think that means this is all water under the bridge. Uh-uh.

Whether or not the district, via its insurance company, decides to appeal, I believe the public is owed an explanation for how this incident and this case were handled.

And not just because of the money, though an appalling amount has been spent to defend this case.

From the moment those kids were found in the bathroom to the jury's verdict, I think this cuts to the heart of how KHSD views disabled children. Does the district value them as much as normal kids? If all you had to go on was this case, your conclusion would have to be no.

The basic timeline alone is outrageous.

About 11:25 a.m. on Oct. 15, 2009, teacher's aide Matthew Hoyt comes back from lunch to teacher Chris Herstam's class and quickly notices one of the students, a boy, is missing. Then he realizes the girl, who'd been instructed to get her lunch and use the restroom, also isn't back. He hears a noise that causes him to rush through the adjoining classroom, Herstam on his heels, to the bathroom. He opens the door and finds the boy and girl as described above. Hoyt yells, the boy runs off and the girl immediately sits on the toilet and begins crying (or whining or rocking or babbling to herself, depending on which of Hoyt's stories you believe).

It's about 11:29 a.m. at this point.

After a bit of discussion, during which time the girl is left on the toilet with her pants down, Hoyt and Herstam decide to report the incident to their supervisor, the head of Independence special ed department, Julie Willis. They head to her office and give her the lowdown. She allegedly tells them it's not a big deal and to file reports. She will claim in testimony they never told her the details of what happened.

Herstam later that day tells fellow special ed teacher Kathy Young about the incident. Young tells her friend Vanessa Chavez, also a special ed teacher. Chavez, rightly, tells Young she must report this to the school's administration, which Young does.

Word gets to Assistant Principal Connie Grumling who, FINALLY, talks to the girls' parents about 4:30 p.m. Still, no one has called the cops, though Grumling did call KHSD police. It was the parents who called the Bakersfield Police Department and took their daughter to the hospital to be examined for rape. Of course, by then, hours had passed and the girl had gone to the bathroom at least a couple of times. No evidence of rape was found.

Let's pause here to reflect: Every single one of those KHSD employees is a mandatory reporter. They had a legal obligation to report this incident to the cops immediately. That's the first call that should be made, according to KHSD's own policies. Cops first, school hierarchy second. Oh, and KHSD's policies also state that KHSD police are not an adequate substitute for city cops. Fail. Fail. Fail.

Both Willis and Chavez declined to comment, referring me to Herr. Herstam didn't return my call and Hoyt's numbers were disconnected.

There shouldn't have to be a law or policy about calling the parents; it's just common sense. Anyone would want to know ASAP if their kid was found with another kid in a bathroom, pants down.

There is absolutely no way the school would have handled it this way if the girl had been a regular kid with the ability to speak and tell her parents what happened. No way.

Inconceivably, though, it gets worse.

The only two people, Young and Chavez, who did the right thing and reported the incident up the chain, were fired.

A meeting of the special ed department was held Oct. 16, 2009, to fill everyone in on what had happened, review protocols and announce that Willis was stepping down as head of the department.

A few days after that, Chavez testified, she was called into a meeting with the vice principal and asked about her and Young's roles in the aftermath of the incident.

Shortly after that, Chavez testified, both women received "non re-elect" letters, meaning after the school year was over they would not be rehired by KHSD.

They knew it was because of the bathroom incident, she testified. They fought the terminations, first going to the principal (who upheld them), then the KHSD board (which also upheld them) and finally the superintendent who overruled the terminations. They were both reinstated in the 2010 school year, but at different schools.

Think about that.

This institution, allegedly, brought its weight to bear not on the gaggle of folks who didn't do the right thing, but on the two people who did.

That's a powerful message. It not only tells employees to toe the line -- or else -- it also very loudly implies that KHSD doesn't take problems as seriously when they involve special-needs kids.

In the weeks and months after the bathroom incident the girl reportedly began sleeping for hours on end, clearly depressed. She became angry and moody where she'd once been energetic and bright, her mother told me. She started soiling her clothes, though she'd previously used the potty regularly. The family was distraught and tried to work with KHSD to get their girl the help she needed.

Instead, they had to fight to make sure that only females worked with her and that she, not the boy, be brought back to her familiar classroom. Eventually, the girl's parents said, they felt they had no choice but to sue.

Once that happened, the issue left KHSD's hands and came under the authority of the district's insurance company, Self-Insured Schools of California (SISC). And that's where attorney Leonard Herr and the "mental capacity" strategy came into the picture.

Herr said he based his conclusions on the findings of two renowned experts on both autism and childhood sexual assault -- Bryna Siegel, a professor of psychiatry at UC San Francisco, and Anthony Urquiza, a pediatric psychologist at UC Davis.

"The experts said that even though (the girl) may have been upset by the incident, it had no long-term effect," Herr told me. He maintained that there was never any evidence she was raped.

"The reason we had to go there was the family wanted millions of dollars for this and I have to see what damages the child really suffered before I can recommend that a public entity spend that kind of money."

Those big-time experts didn't mean much to at least one juror who told me he was much more impressed by Dr. Dean Haddock's testimony. Haddock appeared for the plaintiffs and said trauma for developmentally disabled children, especially those who can't speak, is far more damaging than for other kids. It's much, much harder to process the trauma and work through it for the mentally disabled.

None of the jurors I contacted wanted their names used because of the controversy this case has stirred up.

"They had credentials stacked as high as my roof," the juror told me of Herr's experts. "But they didn't have any 'on the ground' experience. Dr. Haddock has worked with these people. He has real clinical experience."

Aside from that, he and another juror said they were shocked at how KHSD employees handled the incident, saying they couldn't believe police weren't called.

"What got me was, when they (Hoyt and Herstam) noticed the boy was missing, they went running straight to the bathroom where the girl was," the male juror said. "They didn't look anywhere else, not even his bean bag under the desk where he usually went. That told me they knew there was a problem."

Another juror couldn't get past the changing stories.

"That was the most disgusting thing," she said. "How the KHSD employees just blatantly lied, repeatedly. Their job is to protect children and they couldn't tell the truth."

She zeroed in on the testimony of teacher's aide Hoyt but said everyone involved gave her a bad taste.

"If my daughter gets a scratch at school, they're calling me," she said. "That was the main red flag, that no one called the parents until after school was over."

"The main things we discussed were whether something happened and what the harm was," the male juror said.

I think the jurors did their jobs on this case. But I don't think the taint of how the incident was initially handled and then defended will scrub off KHSD anytime soon.

Opinions expressed in this column are those of Lois Henry. Her column runs Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or email lhenry@bakersfield.com

 

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