CLOSING ARGUMENTS

Ms. LAMB (for the prosecution):   You know the tragic thing about bringing a child abuse case to court like this is that the victim -- the child has to come up here and tell in his own words, the child's words, these kinds of scary things. And then the rest of the trial, the whole rest of the time, the defense tries to show that they're making it up for whatever reason.

Do you really believe that in this case that Mr. Bob did not do these things? You've seen 12 children; you've seen a pattern. And we're going to go through that, maybe you've forgotten. I know I had when I started going back through a lot of these things. Forgotten a lot of things that begin to become clear, emerge as a pattern with all 12 of them. At first with all of them there were little hints of disclosure: "Mr. Bob made me keep a secret. I had a secret with Mr. Bob. I went in Mr. Bob's truck." Little hints. Then these hints turned into active disclosures where they told their mother or their father what happened to them. And then as they began to feel safe and see that Mr. Bob wasn't going to kill their mommy, or kill their daddy, or kill their cat, or their dog, or their grandma, or their granddaddy or all the various people that he said he would kill if they told and they began to feel safe and saw these things weren't going to happen, then they began to tell more. And it makes sense. They were not going to say when momma asked them, "What happened to you at day care?" "Well, Mr. Bob put his finger in me and put his private in me." I mean they were just not going to do that. And why is that in this case? Because of the fear. They lived in fear. These kids lived in fear for a long time. They were utterly, totally powerless in their minds to stop it. And that's what you've got to think about.

It's hard for me and y'all to stand up here and think about the way a three or four or five-year-old would think. It's hard. It's been a long time. I know it has for me since I was that age. And it's hard to remember how you would feel as a child. But I think all of us here remember about being scared as a child. And the kinds of things that scared you as a child. So they felt they were utterly and totally powerless to stop this stuff.

So what did Doctor Mark Everson from the University of North Carolina at Chapel Hill talk about in regard to that? How easy it is to intimidate little children. How easy it is to scare them. And he gave the example about -- from a case that he was familiar with where a man was charged with abusing children. And the man said, "Don't tell or I'm going to kill your mommy and daddy." And then he'll shoot off a gun. It becomes mighty real, I'd argue to you, in a four-year old's mind, five-year old's mind. Mighty real.

We have evidence in this case that Mr. Bob had a gun. "Mr. Bob had knives. Mr. Bob scared me with a gun. Mr. Bob got knives out." We'll hear more about that as I take you through the evidence.

And you say -- maybe you'll say -- maybe you thought this whole time, "why didn't they tell? My child would have told me. I know my child would have told me. I just know that they would." And that's one of the scary things about child abuse. This kind of myth that has been perpetrated in our society that it's not going to happen to my family, because my child would tell me. And the defense wants you to buy into that myth. And it is a myth. And people in our society believe this and that it can't happen in my family. And all of these parents sitting out here behind you today, that's exactly what they thought before it happened. It would have never -- they would have never thought this was going to happen in their family, in their wildest dreams. That's what they said. And then when it did start happening, when behaviors started occurring that weren't making sense, they still didn't think, ah, "child abuse."

Is that what the first thing you would think if your child starts wetting the bed or being afraid of their room, or being more aggressive, or having temper tantrums like we're going to talk about? Is that the first thing that's going to pop into your head? No. It's just like these parents said, "I thought it was a phase. I talked to Betsy Kelly about it. She told me it was normal." And in that -- doesn't that make sense that that's the person they would go to talk to. There's been a lot said about, "Well, why don't you go talk to your doctor? Why didn't you go to Mental Health? Why didn't you do something if you've seen all these behaviors. Why didn't you do something?

Well, I think that you have heard almost every mother that got up here and testified did do something. ... If your child is going to day-care, that's where they are spending most of their time. So it makes sense if your mom is seeing problems at home, she's going to go to the person that spends the most time with the child besides herself and say, "Are you seeing anything strange about my child?" Or, "Are you seeing this at home? Are you seeing this at day care?" No. Everything's -- she's fine. Five minutes after you walk out the door, she's fine. And how convenient for Mrs. Kelly to be able to tell them that and keep on abusing.

So it's not true, is it, if your child is going to tell you or that it might not happen in your family? And how do we know that these kids believed what Mr. Bob was telling them about what was going to happen to them. How do we know that? Because they didn't tell anybody. They didn't tell when it was going on. And it went on for a long time. So you probably thought as you sat there how can this go on for so long in this little town of Edenton, six thousand people. How could this happen? How could this happen and go on for so long and not one child say anything about it? Well, I just take you back to the fear that he put in them. And he did it well.

And some children, and you've heard about some of them, thought their parents knew about it. Oh, how horrible that must be for a child to go into a daycare and being molested to think that their parents knew about it and condoned it. Because their parents had taken them there, they must know...

And you ask, "Well, how did this go on for so long?" We've got 12 families here, 12 children. The children didn't tell. But what about all these behaviors that people were seeing with their children? What about people that went to the day care and the doors were locked? Or what about people whose kids were coming home where their clothes had been changed or their hair was wet? We've heard numerous testimony about that from various witnesses. But the thing is these parents weren't comparing notes. They wouldn't have any reason to be talking to Parent A, to Parent B. "Hey, I went to the day care and the door was locked. Did that ever happen to you?" Again, they just thought that something -- an odd incident, and Betsy had some explanation that they thought made sense. Because each family didn't know what the other one was experiencing. So when you put it all together, you see the pattern.

And when children did start to tell, as you heard, what the parents said is that it suddenly made sense. After this long I've been trying to figure out what was wrong with Lauren. I've been trying to figure out what's wrong with Josh, and Adam, and Kyle, and all 12 of them. I've been trying to figure this out, but I can't. I didn't know. And then all of a sudden Kyle, Lauren or any of the 12, says, "Mr. Bob put his finger in my butt. Mr. Bob put his ding-dong in my hiney." And all the horrible acts you've heard about and suddenly the behaviors make sense. .....

Kids aren't miniature adults. They don't think the same way we do. They think in concrete, literal terms. And we can't measure their actions and reactions by adult standards. We have to try to measure it from their point of view. So it's important to look back in time in two ways.

First, to the time the child testified. And second, to the time that the child actually talked about what happened to them. And that's what we're going to do. And I think as we do that you're going to see a package with every child. A pattern, if you will. How they didn't tell at first; they told little pieces at first. But they had some mighty strange and unusual behavior that mom and dad hadn't seen before or their teacher hadn't seen before. And then they began to tell. And they told little bits and pieces. And then they began to tell more. And when they felt safer they told more. And then they had all these behaviors associated with child sexual abuse that you've heard expert witness after expert witness testify about and kinds of things you might see when a child is under stress. And believe me, child sexual abuse would be a stress, wouldn't it? Especially the kind of abuse that they were suffering at the hands of Bob Kelly. So you see the pattern. The disclosures. The behavior before they disclosed. The behavior after they disclosed, and it makes sense.

MR. SPIVEY (for the defense)   Now, this is a subject that is very, very easy for anybody to get emotional about. If a child is, in fact, abused or harmed by any adult, that's something to get emotional about. It's something to get upset about particularly if you're the child's parent. There's no question about that. I don't think there's any stronger emotion than the emotion of a parent who wants to either protect his child or a parent who believes that his child has been harmed and wants to do something about that. That's a proper emotion--is a fitting emotion. It has its proper place. But that place is not in the courtroom. Because your job as jurors is not to sit there and say "Well, I feel sorry for the children. I feel sorry that they had to come to the court. I feel sorry that they had to go through the court process."

Your job is not to take a bumper sticker slogan and believe the children and send a man to prison for the rest of his life based on a slogan. Your job is to dig through this mess and get to the truth, if you can. And you're not going to do that by getting upset. You're not going to do that by getting emotional. You're not going to do that by taking pat little statements that behaviors always mean this and this always means that. You've got to look and see what has been proven and what has not been proven in this case. Because when you come into criminal court, it's not a situation where an accusation alone is adequate. It's not enough to simply accuse somebody of a crime. If that were the case, if you believe the children were the law, then we don't need juries, and we don't need courtrooms and we don't need courthouses because all you need is an accusation. And once it's made, you just pack them off to prison.

Now, y'all have listened to all the evidence in this case and you know that it is not that simple. The prosecution says to you at this point, "Look at what the children are saying. Look at what they're saying now. Look at what they said during the course of the therapy process. Look at what's going on in the testimony in this trial. Look at the way they behave when they come to court," and that type of thing.

I said to you at the beginning of the trial that what the children are saying now is not the real issue in this case. The real issue is the evidence that was most crucial during the course of this trial. the question is, how did the children come to say the things they're saying now? Are you really ready at this point to believe, wholeheartedly, everything the children said, because you've heard the stories just as well as I have. They tell you to believe the children. Just look at what they are saying and believe the children.

Do you believe the stories about, ah, from Beth Bateman about a black man being upstairs skinning hamsters at the day care? Do you just take that at face value? Do you believe the story about a moose being shot dead somewhere and hauled off on a truck or whatever? Do you take it at face value? Do you believe the stories about sharks and machines and scooped them up out of the water and salt water ponds behind people's houses where they kept sharks? And children were being hung by the neck in a tree and yet living to testify about it? Obviously, those are things that are simply not true. But they are all coming out of this same process.

The thing that is of more concern, of greater concern, when you look at the idea of -- let's look at the children's statements or the allegations for the statements where they say things that are taken as being of a sexual nature or in fact are clearly statements of a sexual nature. You got both kinds. You got some things that you don't know for sure whether the child means something sexual by it or it's simply an adult's interpretation or an adult takes it in a sexual way. For example, that might be, "to touch my bottom or she touched my bottom." That could mean a lot of things now.

As an adult, if you got a sexual viewpoint on it and you're thinking child abuse and thinking child sex, you may think about it in a sexual way. The child may not mean it that way. When you have a statement relating to some type of oral sex or intercourse or something like that, it's a very clear-cut statement from the child, then I don't think there's any question that's what a child is talking about. The question still is, where does that come from? Because what you see is time after time after time in this case is you're not getting those things until this thing gets rolling, until this process gets going. It's not a simple matter of saying let's take something six months down the road and say this is it. And if you've listened to the evidence, in each case, time after time, the statements of really gross allegations of all types of sexual acts and things are occurring during the course of the investigative or theraputic process, however you care to term it. So you got to look at that entire process to get an idea of what did or what didn't happen in the case.

Now, the prosecution says there's a pattern to this case. And I think that is one of most troubling things about the case, if there is a pattern to it. And they say that basically every child is going to respond the same to an event. You go through this course of action where first there's a, ah -- as I understand the pattern, the first thing is that some act of abuse occurs and then you threaten the child at the same time so the child won't tell anybody. In every child, that works. Everyone of them. And not just the child who's involved in the act of abuse but it works for every other child in the day care because nobody ever tells anything. Out of all of the kids going through there, nobody ever says a word.

So you have a very effective system of somehow, you abuse the child, you threaten them, it's universally effective with every child. Then the child will start to demonstrate certain behaviors. And from those behaviors you know something is going on with the child and it's probably sexual abuse.

The next thing that's going to happen is that the child is going to do one or two things when you ask about it. Well, he's going to say it didn't happen. Now, if they say it didn't happen, that's a sign that it did happen. Because children will deny it because they've been a threaten. On the other hand, if they say anything happened at all, it's not going to be what really happened. It's going to be a little bit because they're going to make a partial disclosure. They're going to test the waters a little bit. They're going to say, "Well, I was spanked" or something like that, just to see what your reaction is. And then you're going to put them in therapy and in the course of the therapy process, the child will begin to tell everything. And the story that the child tells will become wilder and wilder and wilder, and the behavior becomes worse and worse and worse, and every child responds that way. And that's just not real life. That's not the way people or children respond. ....

There is no doubt children who will be abused in some way will exhibit some behavioral response to that. They may wet the bed. They may have nightmares. But there's also a tremendous number of children who have exactly the same behaviors that's never had anything to happen to them. Some children will be abused and the type or manner of abuse may be such that they don't show any particular reaction to it at all. You may get no behavioral response from the child.

So you would not expect in a situation of mass abuse where you have a gang of child molestors operating a day care center, that every child is going to fit this nice, neat little pattern where no body says anything. The behaviors supposedly exist during this given period of time that everybody sees the behavior but nobody knows what to make of it. Nobody gets upset enough to ask their family doctor about it. Nobody says anything about it. There's no problem about it until after the case is started. Then everybody starts looking back at that point in time saying "Oh yeah, I remember now. This child had a nightmare at that period of time." This child did this. This child did that. And suddenly everything, everything, right down to a child going up to the street corner, running up to the street corner, is a sign of sexual abuse. Every behavior a child has, everything that they do is related to the idea that they've been abused. Kids just don't work that way. It's just not realistic.

....

Now, ordinarily what happens in a -- any case that comes into criminal court is, some event happens outside somewhere, either somebody makes an accusation against somebody, whether it's true or not, or if the police become aware that some crime has been committed, they go and try to find out who did it. When that accusation is made or that event occurs, the next thing that happens is, there is an investigation by whatever agency is responsible for that particular jurisdiction in terms of conducting an investigation. At that stage of the process, what the investigator is supposed to be concerned about is simply gathering facts. It should not be a process of going through and let's find facts that will prove this or it will prove that. It should be a process of simply finding all the facts that will give you an answer to the question: "Was a crime committed? And if so, who did it?"

Once that evidence is gathered, then the next step in the process is for the prosecuting authorities to either get a warrant from a magistrate to arrest somebody or they can present their case to a grand jury. And that's what was done, as you know, in these cases. Miss Toppin appeared before the grand jury. As a result of that Mr. Kelly and a number of others were indicted and charged in connection with this case.

Now, the distinction between an investigation and a prosecution should be a fairly clear cut one. An investigation is designed to gather evidence, to gather facts. A prosecution is designed to prove a particular theory. It's designed to prove that this crime occurred and that this particular person did it. So it's a different focus at that point.

.... [O]rdinarily the investigators just go out and gather up the facts. They interview witnesses and see what they've got to say. If there's physical evidence to be collected, fingerprints or that type of thing, they collect that type of evidence and make it all available, so if it's needed, it can be taken to court.

We've got a very different situation in this case, in terms of how the investigation was conducted. And that had a significant impact on the type of evidence that you heard in this case. The difference in this case is that the parents of the children were brought into the investigative process. They were in essence made cooperative investigators.

When you talk about going back and trying to unravel this case and looking at the statements of the children and what the children said, you haven't heard, from back at the time that things were actually occurring, anything directly from the children. Now, you've heard the children on the witness stand. You've heard what the parents say children said in the questioning process. You heard what the investigator, Miss Toppin, said the children said. There has been evidence, through the parents, of what the children in part told the therapist, not about how the therapist was dealing with the child or what the therapist was doing with the child or how the therapist was conducting the so-called "therapy". But all of these statements are basically coming to you secondhanded. There's no original material there.

Where do we get our material from? Our material, by in large, comes from the diaries or journals that each parent brought to the stand to testify from. When were those created? Were they created by objective, independent investigators who were out just to gather the facts? In every instance, what you have is a record made by somebody after they became convinced that abuse had occurred at Little Rascals. So at that point in time, they're not looking at making a record to say I want something to take before a jury that would be objective, that would be fair, that would be even handed, that would treat Mr. Kelly and the State even. I've gathered the facts objectively. What they're looking to create is something that can get even with the man they believe abused their child. Now, that's understandable. If I believe somebody abused my child, I would feel the exactly the same way and so would you. But then you ought not to make me the investigator because I'm not going to be fair about it. And it's going to be awful tough for me, even if I want to be fair, when I go back and sit down a month or two months or three months later to try to reconstruct what happened, what was my child's behavior like? What did my child say to them in this conversation or that conversation?

Now, if what I have in my mind at the time I'm going back and reconstructing those events is the idea that I am absolutely convinced of whether I'm right or wrong, but if I'm convinced that Mr. Kelly is a child molester, am I going to sit down and do an objective, fair recollection of that? Or am I going to -- is it going to be slanted towards the idea of proving what I already believe? And I think we all know the answer to that. We're all human. It's going to be slanted towards the idea supporting what we already believe. It's going to be slanted toward the idea of our child.

So when we talk about the statements of children that are coming from these records, they are not coming from disinterested people. Not by any stretch of the imagination. So when we go back to try to unravel what happened, we're having to use materials and information that was prepared by people. And it's the only thing that exist, but it was prepared by people whose interest was in seeing Mr. Kelly convicted.

Now, what information was objective information? The tape recording. Anything that existed back at the time this originally got started is gone. And it's gone because it's been destroyed in many instances. Always some sort of accident. But I'm going to tell you right now, Edenton is just absolutely death on tape recorders. I've never seen so many tapes get reused, taped over, lost. ... All that stuff is gone. So it gives us a very difficult task to try to get back to the beginning and unravel this case and try to get some sense of where it started and what happened that led to all of this. But I think that's the task that you've got to perform. ....

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