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> Columns > Boston Globe > Presumed guilty

Presumed guilty

By Cathy Young | July 29, 2002

When a horrible tragedy happens, it's a natural human reaction to look back and say: If only this or that had been done differently, this wouldn't have happened. Tragedies don't get much more horrific than the grisly slaying of 5-year-old Samantha Runnion, who was abducted outside her family's home, sexually assaulted, and murdered. And in this instance, one can look to a very specific event that, with a different outcome, might have saved the little girl's life. The suspect, 27-year-old Alejandro Avila, was tried less than two years ago on charges of molesting two other girls - and found not guilty.

According to the police, the evidence against Avila in the kidnapping and murder of Samantha Runnion is overwhelming. If he is indeed the killer, is the justice system that failed to lock him up in some sense responsible for her death? What about the jurors who acquitted him and the attorney who helped him beat the rap? Some are already pointing the finger of blame.

Bill O'Reilly, the combative host of the Fox News Channel's ''The O'Reilly Factor,'' has been on a crusade to label John Pozza, Avila's attorney in the 2001 molestation case, a virtual accomplice in the murder.

Yet media accounts of that case suggest that it was far from airtight. Avila's former girlfriend accused him of sexually abusing her daughter and her niece. The unfortunate fact is that under such circumstances, false charges are not uncommon, and child witnesses can be coached. True, after flunking a polygraph test, Avila admitted to touching the genitals of his ex-girlfriend's daughter; however, he said that this occurred while he was bathing her. (Polygraph results are generally inadmissible in court, and for a good reason: They have a very high error rate. According to some studies, half of those who flunk the ''lie detector test'' are not lying.)

During the trial, Pozza undercut the prosecution's case by pointing out that the girl's older brothers were in the living room of the apartment and noticed nothing amiss while Avila allegedly spent hours molesting her in the bedroom - and that the girl twice volunteered to stay alone with him, once overnight, after the molestation allegedly occurred.

In hindsight, it's easy to look at those facts and say that Avila was almost certainly guilty. At the time, however, it seems that there was plenty of reasonable doubt.

Some crimes are so heinous that it's tempting to forget about the presumption of innocence. Above all, perhaps, this is true of crimes against children.

In the 1997 film ''The Devil's Advocate,'' the hero, an attorney, represents a schoolteacher accused of molesting a student; on the stand, he aggressively questions the girl about inconsistencies in her story and her possible motives to lie. He wins the case - only to find out a few months later, in a twist eerily reminiscent of the Avila case, that his former client murdered a child.

The film treats the hero's defense of the pedophile as the start of a descent into evil that eventually lands him in the clutches of the devil himself. But it stacks the deck by having the attorney become convinced of his client's guilt during the trial, because of a lewd gesture the man makes while watching the girl testify. Without that detail, his cross-examination, while tough, would have been entirely proper. And in real life, child abusers usually don't give convenient cues. Polygraph results, while O'Reilly has cited as evidence that Pozza must have known Avila was guilty, hardly constitute proof.

Whether it's morally wrong for an attorney to seek the acquittal of a client he or she knows to be guilty of a heinous crime is a separate issue - complicated and troubling, but also mostly academic. Right now, a more pressing concern is to remember, amidst the renewed attention to crimes against children, that under our justice system, the accused must get the benefit of the doubt. We already went through one bout of child abuse hysteria in the 1980s and early 1990s. As a result, dozens of almost certainly innocent men and women spent years in prison or saw their lives devastated.

Yes, the presumption of innocence means that sometimes the guilty will go free. Today, none of us would want to be in the shoes of one of the jurors who voted to acquit Avila. But would we want to be in the shoes of a juror who sends a defendant to prison only to find out years later that he (or she) was innocent all along?

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