.jpg) Glenn Payne and Linda Starr, NCIP executive director (Photo: James James Tensuan)
A few minutes after 1 a.m., two houseguests arrived and after knocking for about five minutes, Manuel let them in. One went to a bedroom to sleep and the other slept on the couch. Neither the guests nor Manuel would remember seeing S.G. on the loveseat.
At 8:15 a.m., Margaret Nilsestuen, who lived one block away, discovered S.G. sleeping on the walkway in front of her home. The girl’s clothes were torn and stained. She was covered in grass, leaves, and feces, and she was deeply discolored by exposure to the cold. Her underwear was missing, as was the pink tablecloth.
Nilsestuen called the police. San Jose police officer Patricia Potter later testified at a pretrial hearing that her first question was “Who hurt you?” Potter later conceded that based on her leading questions, S.G. said she was hurt by a black man with black clothes and driving a black car with white interior.
At 9 a.m., Potter was notified that S.G.’s parents had reported her missing and took S.G. home. There, S.G.’s mother, Alice, asked, “Who did that to you?” Alice would later testify that S.G. seemed to be in shock and mostly responded to questions by nodding her head.
S.G. was taken to a hospital where Dr. Kavin Desai examined her. Dr. Desai would later testify that “there was difficulty getting information from her.” Desai said that eventually, S.G. told him that during the previous evening she saw a black man with a hat, that the black man hurt her, and that “he lived across the street.” Desai reported that he found vaginal and anal tears and opined that they were likely due to penetration.
San Jose police sergeant Michael Schembri interviewed S.G. for five minutes after the physical exam. His first question, like most of the other questions asked of S.G., was highly suggestive: Who was the person who hurt you? Schembri later testified that S.G. was extremely withdrawn, tired, and groggy, and she was confused about dates, times and sequence of events. Nevertheless, she said it was the black man who lived next door. When he asked where she was hurt, S.G. said her hand, foot, neck, and knee had been hurt, and she pointed to her vaginal area. S.G.’s mother was present and interrupted to ask if the man who attacked her wore a hat and S.G. nodded.
After the interview, S.G.’s mother told Schembri that their neighbor was a black man and wore a baseball cap.
That neighbor was 28-year-old Glenn Payne, who lived with his mother across the street from S.G.’s family. His mother, Betty Robbins, babysat S.G. and her siblings two weeks earlier and Glenn came with her. When Schembri arrested Payne that day, Payne was wearing a black baseball cap. Payne was taken to the police station and forced to disrobe on a piece of butcher paper. A brown hair was recovered from the paper by Santa Clara County Crime Lab criminalist Mark Moriyama.
The following day, April 28, 1990, S.G.’s grandparents drove through the neighborhood. In an empty field near S.G.’s house, they discovered S.G.’s underwear and the pink tablecloth, as well as a hairnet. They put the items in the trunk of their car and later turned them over to police. At the crime lab, a hair was found clinging to the tablecloth.
Prior to trial, Payne’s defense attorney, concerned that Payne suffered from cognitive deficits, obtained a mental evaluation. Payne was determined to be competent to stand trial.
In December 1990, Payne went to trial in Santa Clara County Superior Court on a charge of forcible lewd and lascivious conduct with a child. Officers Potter and Schembri both testified and conceded that their questioning of S.G. had been leading and suggestive. Schembri noted that S.G. was “a two-and-a-half-year-old child. I couldn’t get too detailed with her.” He said that he started with open-ended questions and moved toward more suggestive questioning when S.G. did not respond.
Dr. Desai was qualified as an expert witness in sexual abuse cases even though he was a second-year pediatric resident and had conducted sex assault examinations in only 10 other cases. He testified that he found physical evidence of anal penetration as well as pus. Pus, he said, is evidence of an infection, which could have developed within an hour after S.G. was attacked. Tests for sexually transmitted diseases were negative, he said.
Laboratory analyst Moriyama testified that he had examined the hair recovered from Payne in the butcher paper and the hair found on the tablecloth. He said there was a 1 in 2,700 chance that hair from the butcher paper came from someone other than S.G. Moriyama said the hair on the tablecloth was a pubic hair, was from a black person, and there was a 1 in 48 chance it came from someone other than Payne. Moriyama then multiplied 1 in 2,700 and 1 in 48 and concluded that the likelihood of those two hairs being present as a random occurrence was 1 in 129,600.
There was no other physical evidence linking Payne to S.G.—no blood or semen was recovered from S.G.’s or Payne’s clothing. Scrapings of her fingernails were negative for evidence linking to Payne.
S.G., by then three years old, sat on her mother’s lap on the witness stand. The prosecutor asked several questions aimed at establishing that S.G. was a competent witness, but she refused to respond. When the judge suggested taking a break, S.G.’s mother proposed that she and S.G. walk around the courtroom “so you can get comfortable…See all these nice people? Say hi.”
S.G. and her mother returned to the witness stand. S.G., after initially refusing to answer questions, finally told the prosecutor that she would tell the truth. Then she pointed to Payne as her attacker.
When Payne’s lawyer attempted to cross-examine her, S.G. shut down completely. She laid her head on the rail and refused to respond. The judge recessed the trial and the following day, S.G. and her mother got back on the stand. S.G. still refused to answer the defense attorney’s questions. The judge then asked the prosecutor to ask S.G. if she would answer the defense questions. The prosecutor did so and then asked, “Who was the man who hurt you?”
S.G. again pointed to Payne. A defense objection was sustained and the defense attorney tried again to question S.G., but she refused to answer. Finally, the judge excused S.G. after announcing that she was “a competent witness; she has testified. But for whatever reason, this is a very traumatic experience for her and she’s not going to testify to any further cross-examination.”
By that time, S.G. had been on and off the witness stand four times and identified Payne several times. The judge then granted a defense motion to strike S.G.’s testimony because the defense had been unable to cross-examine her. The defense then asked for a mistrial, arguing that the jurors would be unable to ignore the girl’s identifications of Payne.
In response, the judge questioned the jurors individually to determine if they were able to disregard her testimony. One juror who said he could not was excused. The others remained.
The defense called a hair analysis expert who disputed Moriyama’s conclusions. The expert said there were insufficient similarities between the hair found on the tablecloth and Mr. Payne’s hair to conclude they came from the same person. While the hair in the butcher paper from Payne’s clothing could have come from S.G., he testified, he could not say it was probable.
Payne’s mother and a niece testified that he was with them on the night S.G. went missing. Both also said he never wore a hair net.
The jury began deliberating on December 6, 1990, and after two days, reported that they were deadlocked and unable to reach a verdict. The judge ordered them to continue deliberating and on December 10, Payne was convicted of forcible lewd and lascivious conduct with a child. He was sentenced to 27 years in prison.
California's Sixth District Court of Appeal upheld his conviction in June 1992. Payne filed a federal petition for a writ of habeas corpus in October 1992, but that as dismissed in 1994. The Ninth Circuit U.S. Court of Appeals upheld the dismissal in 1995.
In 2002, Payne contacted the Northern California Innocence Project at Santa Clara University School of Law to request DNA testing. A search for the evidence in the case showed it had been destroyed in November 1992.
Payne was released on parole on April 1, 2005, and his parole ended in 2008.
In 2013, the FBI reported that testimony asserting that microscopic hair comparison could produce a “match” between two hairs was scientifically invalid. The FBI, the Department of Justice, the Innocence Project in New York, and the National Association of Criminal Defense Lawyers began a review of FBI analysts’ testimony and reports. They determined that analysts had provided erroneous testimony or reports in more than 90 per cent of the cases reviewed by 2017. Moriyama, who testified that he had been trained by the FBI in hair analysis, was not part of that review, which includes only FBI analysts.
Nevertheless, Payne had no legal avenue to seek to vacate his conviction because such remedies were restricted to defendants who were still in custody or on parole. But in January 2017, a new law went into effect in California that permitted defendants to seek relief after completion of their sentences and parole.
The NCIP began re-investigating Payne’s case and asked Dr. James Crawford-Jakubiak, medical director of the Center for Child Protection at UCSF Benioff Children’s Hospital in Oakland, California, to examine Dr. Desai’s testimony and reports as well as photographs of the child. Dr. Crawford-Jakubiak concluded that there was no sexual abuse or physical injury, and that the infection reported by Dr. Desai was actually a strep infection of the anus.
“This medical condition is in no way related to sexual abuse,” Dr. Crawford-Jakubiak reported. “However, this medical condition has been misidentified as evidence of sexual abuse quite frequently in the past.”
Dr. Crawford-Jakubiak noted that on April 30, 1990, S.G. was prescribed a course of antibiotics because she had been diagnosed with a urinary tract infection. When she returned for another examination, the signs that had been interpreted as evidence of sexual abuse were gone, apparently inadvertently cured by the antibiotics.
Crawford-Jakubiak also reviewed the interviews conducted by police and others, including Desai. He concluded that most of the questions were leading and suggestive and are now known to be improper for child sex abuse investigations. Crawford-Jakubiak noted that the “most skilled interviewer” was Lorraine Gonzales Moore, a licensed clinical social worker. Moore had questioned S.G. in September 1990, five months after the alleged assault.
In that interview, S.G. “repeatedly denied that anyone had hurt her…and did not say anything that would indicate she had been sexually abused,” Crawford-Jakubiak reported. Even so, because Moore knew that Desai had made physical findings of sexual abuse and because S.G. didn’t want to talk about what happened, Moore found the girl to be very traumatized.
“Given that the examination findings do NOT support a suspicion that a recent, violent sexual assault had occurred, the fact that she did not disclose any abuse during the interaction with Ms. Moore would be the expected statements from this child,” Crawford-Jakubiak concluded.
Lawyers at NCIP, in reviewing the reports of the interviews of S.G., also discovered that at one point, during a preliminary hearing S.G. said she went outside by herself “and got my doggie and my kitty.” When asked if she saw anyone outside, she shook her head. This did not come out at trial because she was not cross-examined and the prosecution did not elicit it.
The lawyers reached out to the Santa Clara County District Attorney’s conviction review unit headed by prosecutor David Angel. With Angel’s assistance, Moriyama signed a sworn statement repudiating his trial testimony.
He said he no longer believes “the portion of the expert testimony relating to the statistical weight of the comparisons and [that] the uses of that statistical weight are scientifically valid. The scientific expert testimony that [he] would render now would be different and limited to stating that the hair sample found on the defendant could have come from the victim, and the hair sample found on the tablecloth used to cover the victim could have come from the defendant.”
Based on Moriyama’s recantation, the prosecution joined in the NCIP motion to vacate Payne’s conviction. On January 25, 2018, the conviction was vacated and the charge was dismissed.
– Maurice Possley
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