Keith Allen McMullin   case # 12-00400 Clackamas  County Oregon

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Substitute your name or the name of your husband, son, father, or brother for Keith. Would you support the Judicial process followed by these witnesses and these lawyers?

On 27 January 2013, Keith was handcuffed and taken to jail for a crime he did not commit.

Why was he convicted?

1. Christine Smith lied under oath. She knew or should have known that her convicting statements were false. She claimed the same expertise as an MD to do her job.
2. Judge Jeffrey Jones lied. He is an experienced judge. He complimented the two                                       attorneys on their professionalism during this trial.
3. Stacey Borgman lied during her closing statement Both she and Judge Jones knew or should have known that the medical testimony against Keith McMullin was false.
4. Heather Karabeicka furnished literally no defense from the false charges. She knew or should have known that there were cases that had already addressed the lies put forth by the prosecution. Both Ms Borgman and Judge Jones as experienced jurists should have known the content of these same cases.
5. DHS sex abuse experts all contributed to Christine Smith’s 19 page report. All vouched for the truthfulness of the accuser, Angela McMullin. Ms Karabeika did not object to this vouching. Judge Jones had instructed the attorneys against such vouching but allowed the prosecution to do it anyway. He denied the defense the same opportunity.

Here is an extract from a 7 page evaluation of this case by an experienced attorney, Ryan Scott.

“V. Analysis of this case   

A. The medical testimony

To some extent, I am going to blend together my observations about both appellate issues and issues for post-conviction relief, in part because they are tied together.

But the part I want to focus on first is the testimony of Christine Smith of the Children’s Center. She is a nurse practitioner who “evaluates and treats children of suspected child abuse.” Her testimony was fairly typical testimony in these types of cases. She conducts a medical exam to determine if there is any indicia of sexual abuse. In a case like this, where a young complainant is alleging hundreds of incidents of rape, a jury would expect to hear about physical injury. When there is no physical injury, someone like Ms. Smith is able to reassure the jury that a normal exam is consistent with the allegations.

She started off by discussing the Kellogg study. (Tr 311) That study is routinely cited by state’s witnesses as proof that rape of adolescents can still result in normal medical findings. In fact, Ms. Smith relied on the Kellogg study to claim that she would expect, despite the allegations in this case, the physical evidence would be normal (i.e., no evidence of sexual trauma).

I want to stress that the Kellogg study should not have come as a surprise to the defense counsel, or any defense counsel who handles these types of cases. It is a study frequently relied upon by the state’s witnesses, and if a defense attorney had never had such a case before, it would have been entirely appropriate to obtain the testimony of Ms. Smith, or someone who has filled a similar role, in order to find out what studies the expert witness would be relied on.

If the exam shows an absence of evidence, why is it admissible? The state would likely argue admissibility for two reasons. First, it would be admissible to rebut the defense allegation that lack of physical findings is evidence of a lack of abuse. This would be legitimate grounds under State v. Perry, 347 Or 110, 218 P3d 95 (2009). The second reason the state would give is that, even if defense counsel did not make an issue over the lack of physical abuse, it would still come in to counter a possible inference by the jury that lack of physical evidence equaled the absence of abuse. See State v. White, 252 Ore. App. 718, 719 (Or. Ct. App. 2012). If uncontested, this evidence is very useful to the prosecution. A typical juror would expect multiple counts of pre-pubescent rape would result in some physical findings of abuse. The absence of any physical findings could be a great weapon in the hands of defense counsel. But a witness like Ms. Smith can blunt the effectiveness of such an argument.

That is, unless the defense attorney is prepared. There are two things every defense attorney should do in a case like this. (1) Get a defense expert and (2) better understand the science and medical issues better than the state’s witness.

And the science is available. Ms. Smith told the jury that she would only expect a “normal” exam, based primarily on the Kellogg study, which involved 36 subjects. An effective defense attorney could have countered with studies of her own:

Teixeira, 1981, Of 500 patients examined for sexual abuse, 62% had hymenal

ruptures.

Hobbs and Wynne, 1986, 35 victims of anal sodomy, half confirmed by confession,

ALL had fissures and abnormal anal dilation.

Hobbs and Wynne, 1987, evaluated 337 children, 58% girls had findings.

Adams, Ahmend and Phillips (1988) found 57% with Hx of penal rectal

penetration had positive physical findings.

Muram, 1989(a), 16% of (prepubertal) girls reporting digital assault and 86% of

girls reporting genital-genital contact had definitive or specific findings."

Muram, 1989(b) reported…in 18 cases (post-pubertal girls) where perpetrator

admitted vaginal penetration, 61% had physical findings.

Kerns & Ritter, 1992 of 22 patients with perpetrator confessions of penile vaginal

penetration 82% were abnormal. Of 13 patients of allegations and confessions of

only digital vaginal penetration 39% were abnormal.)

Emans, 1994, of 100 sexually active adolescents, 81% had “complete clefts” in the

lower hymen between 2 o’clock and 10 o’clock. Compared with 5% of 100 nonsexually

active girls.

Slaughter, 1997, study of 213 assault victims. If seen within 48 hours, 92% had

evidence of genital trauma. Of 81 adolescents alleging penile penetration, 100% had

physical findings if seen within 48 hours. 55% had evidence if seen within 72 hours.

Edgardh, 1999, Of 59 adolescent girls reporting penetrating abuse, 59% had deep hymenal clefts or vestibular scars.

Heger 2003, Of the 75 girls with history of vaginal penetration or trauma, 47 (62.6%)

were found to have trauma to the posterior forchette and/or fossa navicularis. [digital

or penile]. Hymenal trauma was found in 37 (49.3%) of 75 girls who reported

penetration. [digital or penile] Perihymenal trauma was found in 39 (52%) of 75

cases [of penetration]

Moreover, the state’s expert does not have to be familiar with those studies in order for the defense counsel to ask her about them in cross-examination. See State v. Morgan, 251 Or App 99 (Or. Ct. App. 2012)(“ OEC 706 does not require that the witness being cross-examined be personally familiar with a learned treatise if its reliability is established in another authorized way.”)

This could have been a brutal cross-examination. And not just because there are studies that plainly contradict the Kellogg study. The Kellogg study was deeply flawed, and defense counsel should not have let it go unchallenged. Though Ms. Smith talked about some aspects of the study, in fact the study showed 36 pregnant adolescents (small sample w/ estrogen effect at highest); it was totally dependent on photographs (to see many scars, doctors must run Q-tip along hymenal skirt) ; it had 22% inconclusive reviews and it involved no consideration of enlarged hymenal openings.

In other words, Ms. Smith could have been completely discredited as a witness, if the defense attorney had done the research that every defense attorney should do before a trial based on allegations like this. Instead, the cross-examination of Ms. Smith was largely toothless. It did not bring up any of the studies above. It did not bring up the flaws in the Kellogg study. It allowed Ms. Smith to say again she expected normal findings. It failed to meet minimal standards for what a cross-examination of witness should be.

In addition, it would have been very valuable for the defense to have its own expert on whether there would be “normal” physical findings. One of the best in the country is Dr. Stephen Guertin, and he has flown to Oregon specifically to testify on this exact issue. Had Dr. Guertin or an equivalent expert testified, and had defense counsel educated herself on the science, the jury would have believed in the high likelihood that evidence of abuse would have been present. Instead, the jury was led to believe the opposite. This was grossly inadequate lawyering.

B. “Consistent”: impermissible “vouching” evidence

There was another issue involving the testimony of Ms. Smith which is somewhat more ambiguous legally. She was asked if she noted any inconsistencies in the complainant’s disclosures. She said she did not, and she expounded at length on significant and insignificant consistencies.

There is a well understood rule that “[no] witness, expert or otherwise, may not give an opinion on whether she believes a witness is telling the truth.” State v. Middleton, 294 Or at 438. Lawyers refer to this as “vouching.” That is, one witness is vouching for the credibility of another witness.

I believe Ms. Smith’s testimony regarding “consistency” of the statements was improper vouching. It violated the judge’s pre-trial order that one witness may not testify about the credibility of another. This was indirect testimony on credibility and it should have been objected to. It was not.

I describe this as being more legally ambiguous is because of a case called State v. Viranond. It is an opinion from the Oregon Supreme Court that upheld a conviction when a detective was allowed to testify that a witness’s testimony was consistent with her earlier statements.

The relevant portions of the opinion are also ambivalent. Let me quote the relevant part:

Instead, defendant contended (and continues to contend) that testimony commenting that certain statements were consistent with one another serves no real purpose other than indirectly to bolster the credibility of the witness who made those statements. We disagree. As noted, a witness may repeat the same lie multiple times. We think that, in the context of the specific objection that counsel was making, testimony that the witnesses' earlier statements were consistent with their trial testimony merely established that the witnesses told the same story, true or false, more than once. In support of his contrary position, defendant relies on a Washington Court of Appeals case, State v. Stevens, 127 Wash App 269, 275-76, 110 P.3d 1179 (2005), in which that court concluded that characterizing the statements that two victims separately made to police as "consistent" with each other "would suggest that the victims were truthful and accurate." As we have explained, we do not share that view, at least as to the facts presented here: consistency has no necessary connection with veracity. We find the Washington case unhelpful.

Of course, we do not deny that the prosecutor's hope in offering Napieralski's testimony was that it would turn out to rehabilitate Henderson's and Burgstahler's credibility. That was what the testimony was supposed to do. However, that fact does not make Napeiralski's testimony inadmissible. See Middleton, 294 Ore. at 435 ("Much expert testimony will tend to show that another witness either is or is not telling the truth. * * * This, by itself, will not render evidence inadmissible."). Moreover, the express purpose of OEC 801(4)(a)(B) is to rehabilitate a witness's credibility after an express or implied charge of recent fabrication or improper influence or motive. That purpose cannot be achieved without some review of witness's previous statements, either in painstaking detail or in more cursory form. The trial judge did nothing more than enforce the rule of evidence according to its own terms. That was not error.

State v. Viranond, 346 Or 451, 460-461 (Or. 2009)

This case is not necessarily fatal to my argument that Ms. Smith’s testimony was improper. First, the case does limit itself to the facts and rationale of that case. It does not say that an opinion that testimony is “consistent” is always admissible.

More importantly, in Viranond, the detective’s statements that the testimony was consistent was permissible given the evidentiary rule “prior consistent statements”.Here, that rule of evidence does not apply. Ms. Smith’s testimony was solely for the purpose of vouching for the credibility of Angela. It served no other purpose, and if not that, then it would not be relevant. It completely violated the rule against one witness giving an indirect opinion on the credibility of another.

Again, though, Viranond does complicate it. And I could spend ten or twenty pages distinguishing between this case and the Viranond case. The problem is, defense counsel did not object to this testimony at all. Therefore, in order to win on appeal, it would have to win as plain error. And the Viranond opinion offers just enough ambiguity that admission of this evidence might be admissible. If it might be admissible, it is not “plain error.” If I were writing the brief, I might bring it up as plain error, but not all appellate attorneys would.

There is some good case law in which convictions are reversed because of vouching, even when the vouching is unobjected to. State v. Hollywood , 250 Or App 675, 677-80, ___ P3d ___ (2012) (court’s failure to strike evidence that violated Middleton rule was apparent error even though the impermissible testimony was not a direct response to prosecutor’s question).

It is also possible that this could be an issue in post-conviction relief. In my opinion, a reasonable defense attorney should have objected to this line of evidence. But it is complicated and it would require a smart PCR attorney and a smart PCR judge.

The potential for PCR relief increases when you note that Amanda McVay was also allowed to testify about what is or is not an “inconsistency.” (Tr 379) Again, no objection. But I want to stress that the big hurdle is persuading the PCR judge that these circumstances are quite different than Viranond, and that the opinions about consistence – not admissible in this case under the prior consistent statement rule – only are offered to convey belief in the truthfulness of Angela McMullin. There could be no other rational purpose, and that testimony should have drawn an objection.

In fact, we see the “consistency” being used for this purpose, in the prosecutor’s closing argument. Not only does the prosecutor rely on the state’s witnesses as memory experts (an expertise for which no foundation has been laid), but she uses their statements about consistency in order to minimize minor inconsistencies and claim the absence of any big ones. This is a concrete example of how the state’s experts were used to vouch for the credibility of Angela.”

Why did Judge Jones allow this to vouching to occur? He refused to allow Mr McMullin the same opportunity.

Why did Ms Karabeika not object?

Why did Ms Karabeika not avail herself of this information before entering the courtroom where she knew what the testimony of Christine Smith was going to be?

Why did this experienced judge and prosecuting attorney use and allow to be used testimony both had to know or should have known was false?

Keith McMullin’s life has been put in jeopardy because of these vicious lies. Just in the last few days 2 convicts were murdered in prison by fellow prisoners. Both were sentenced for sex offenses. 

Are these false witnesses, the judge,and the two attorneys ready to face charges as accessories to murder if the same thing should happen to Keith?

Would you like to be in prison because of the actions of these so called defenders of your constitutional right to a fair trial?

What are you doing about it?

 Contact the media, your elected representatives, and do your best to make this case go viral.

Richard H Oehler MD

6831 SE Brownlee Road

Portland, OR 07267

oehlerdick31@gmail.com