Duke law clinic to review 1987 conviction
Citizen-Times, North Carolina/September 27, 2014
By Romando Dixson
Asheville -- Duke law professor Theresa Newman has three boxes full of files about Andrew Chandler Jr.’s case: details about the bizarre allegations, the expert testimony that would not be admissible today and the multiple appeals.
Newman, co-director of the Duke Law Wrongful Convictions Clinic, may be Chandler’s last hope in his attempts to regain the freedom he lost about 27 years ago. Chandler is serving a life sentence after being convicted in 1987 of five counts of first-degree sexual offense, six counts of taking indecent liberties with a child and one count of crime against nature in a sexual abuse case involving seven preschool children.
His supporters say he’s a victim of near hysteria involving satanic ritual abuse cases in the 1980s and ’90s.
“Is this one of those cases in which the allegations are not fact?” Newman asked, adding that she only recently began to review the case and may need six months to finish. “Other lawyers whom we trust and respect believe strongly in his innocence.”
The clinic, which has three lawyers and works with many Duke law students, has not decided whether to take the case. Newman, however, is concerned about the accuracy and reliability of the trial based on her reading thus far.
The Duke Law Wrongful Convictions Clinic has had success in motions for appropriate relief with five clients, including two from Western North Carolina. Most recently, with the help of attorney Sean Devereux, it helped free Michael Alan Parker. A judge last month dismissed all charges and vacated Parker’s sentence after he spent more than 20 years in prison on convictions of multiple sex crimes against three children. Devereux said it was part of the satanic ritual abuse frenzy and not a single accusation of that type has proven to be true nationwide.
The Duke law clinic also helped free a former Hot Springs man who spent 17 years in prison on charges he sexually abused his former stepson. Jonathan “Scott” Pierpoint was released in 2010 after an Avery County Superior Court judge said new evidence and statements from his former stepson made it clear he wasn’t guilty.
Another mistake?
Durham-based attorney Mark Montgomery has been heavily involved in trying to get Chandler released from prison and filed a motion for appropriate relief in 2007. He sought a commutation of sentencing in December 2012 and described the case as “the most interesting (and frustrating) set of legal and factual issues I have seen,” in a letter addressed to former Gov. Bev Perdue.
“I’m completely confident in his innocence,” Montgomery said. “I don’t see any possibility he molested these kids.”
Chandler, also known as Junior Chandler, drove a van for a day care in the 1980s. Several of his passengers were ages 3 to 5, along with a few mentally handicapped adults.
On Feb. 24, 1986, a 4-year-old girl who rode with Chandler came from day care and announced to her mother, “We’ve been (having sexual intercourse),” according to Montgomery’s motion. When the mother questioned her, the girl said she saw two adults having sex on Chandler’s van. A few weeks later, the mother saw her daughter engaging in sex play with a teddy bear. A couple months later, the girl said “they hurt her butt” on the van in January or February, the motion states.
The authorities began an investigation, initially focusing on two mentally challenged adults, whom Chandler said he admonished for physical contact and using inappropriate language on the van. Seven of the children who rode Chandler’s van were the subject of indictments; one was found incompetent to testify and another was never proffered as a witness, Montgomery’s motion said.
The first trial in Madison County ended with a hung jury. At the second trial, one child was unavailable because of fear, Montgomery’s motion said, but her prior testimony was read into evidence, despite the defense’s objection.
According to the children, Chandler repeatedly would stop the van near the Redmond Dam after they left day care, take off their clothes and commit a sex act as they screamed and struggled to get away.
The defense presented evidence stating the area of the alleged abuse happened in plain view of a road with heavy traffic.
One of the children during cross examination implicated the fictional character Pinocchio, as well as Chandler and the two adult riders. Four children admitted on cross examination they were “pretending that they had been molested; they were repeating things they thought the adults wanted them to say,” according to Montgomery’s motion for appropriate relief.
The two adult bus riders testified against Chandler in exchange for a probation-only guilty plea, saying he made them help molest the children. They later said it was only Chandler, Montgomery said. Other mentally challenged adults and an employee at the day care testified that they did not see inappropriate conduct.
Of the roughly 1,400 transcript pages of testimony, the direct examination of the remaining four children amounted to 22 pages of leading questions and brief answers, Montgomery’s motion said.
Chandler took the stand and repeatedly denied allegations against him. He said he threatened the children with a switch if they did not behave and denied he ever hit them with the sticks.
There had never been any previous complaints about Chandler or about him being late, according to Montgomery’s motion.
The state presented two social workers and a family counselor to testify that, because some of the children acted in certain ways, they were sexually abused, Montgomery’s motion said. A doctor also testified that allegations of child sexual abuse to a doctor are inherently reliable, more reliable than sworn testimony.
Chandler was found guilty. Montgomery said it happened when people “commonly believed that day cares were havens for sadistic pedophiles,” he said in a letter to Perdue.
The McMartin Preschool Case in California was highly publicized, as well as the “Little Rascals” day care case in North Carolina. The McMartins were exonerated, as were the defendants in the case “Little Rascals” child sexual abuse cases.
Montgomery filed a motion for appropriate relief in Superior Court, contending there had been a significant change in the law pertaining to the admissibility of expert opinion evidence in child sexual abuse cases since the time of his trial and appeal. The defendant argued the law allowed an expert to testify that a child was in fact sexually abused absent physical evidence of abuse but such evidence had become inadmissible since his trial and appeal.
Judge Phil Ginn granted a partial relief to Chandler in 2008, based on those grounds. The trial court agreed with the defendant in part.
The trial court then examined the expert testimony presented at the defendant’s trial and the physical evidence supporting the expert testimony. The trial court determined the expert testimony regarding those children was properly admitted because there was significant physical evidence of sexual abuse with most of the victims. The trial court, however, did find there was no physical evidence of abuse in one victim that could be used to formulate an expert opinion.
Chandler would’ve been immediately eligible for parole considerations.
The N.C. Supreme Court, however, vacated the order, taking away the partial relief in 2010 and remanding the case to Superior Court. Ginn eventually took himself off the case, and Judge Alan Thornburg did not rule in Montgomery’s favor.
Appeals were unsuccessful.
Montgomery said his motions for appropriate relief based on admissibility by today’s standards worked in four other cases. He said he has exhausted his options in the case. He said maybe Newman can find something in her stacks of files, though he said it may be a long shot. He said it would take something like new evidence. Otherwise, “we are out of court,” he said. But he’ll be following to see what happens.
“The Michael Parker case showed it’s not impossible.”
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