By Konrad Kircher
Child sex abuse victims often delay in reporting their abuse. They fear that no one will believe them, and they blame themselves for the abuse. When they do come forward, they need validation. I was very proud to assist a very brave 19-year-old girl to obtain validation in a jury trial which concluded on Valentine’s Day 2019. She had been led into sexual conduct at the age of 15 by a 25-year-old mentor. The jury awarded her $200,000 in compensatory damages, $50,000 in punitive damages, and reimbursement of her attorney fees. But more important than the money was the fact that the jury hugged her and encouraged her to continue to succeed. That reassurance was priceless.
BACKGROUND ON CLAIMS
My client, M.P. (Megan), is now 19 years old. We filed the lawsuit under the pseudonym M.P. and all pretrial filings were under seal. After the verdict, Megan had gained so much strength that she wanted the verdict forms filed openly, not sealed. She intends to tell her story broadly, which is why I am authorized to use her name in this narrative.
The primary defendant was Judd Ellinger, who is now 29 years old. We also sued his mother, Gail Ellinger. The Ellingers and Porters were neighbors in rural Fairfield County. The Ellingers had a farm, and Gail ran a few businesses on it. Megan grew up working for Gail in exchange for feed and board for Megan’s goats. Megan grew up looking up to Judd as a big brother.
The “sibling” relationship started to change when Megan got her braces off at age 15. Judd started to make suggestive comments to her. He was 25 years old at the time and engaged. Over the summer of 2015, they engaged in an escalating pattern of conduct, from cuddling, kissing, fondling over clothing, fondling under clothing, digital vaginal penetration, mutual oral sex, and finally the loss of Megan’s virginity. On two occasions, Megan had a friend (a different friend each time) with her. Judd wanted a threesome. One of the friends agreed, the other did not but witnessed the conduct between Judd and Megan.
The day after the intercourse, Judd cut off communication with her. Megan was crushed. She testified that she “loved” him. Megan eventually disclosed to her sister, then to her parents. The parents reported to police and Judd was indicted on three sex felonies, two against Megan and one against the friend, and a handful of misdemeanors. Apparently the prosecutors did not feel the girls were able to testify and they allowed Judd to plead to two non-sex misdemeanors (endangering children). There was testimony at the civil trial that, after the criminal plea and sentencing, Judd was in the courthouse parking lot swinging his shirt around and high-fiving his buddies and family.
We alleged that Gail knew of the danger to Megan and failed to prevent it. Gail admittedly did not like Judd’s fiancée and the fiancée did not like Gail. We had some other evidence of Gail’s culpability, but not enough.
Our claims against Judd were for battery and IIED, and against Gail for negligence.
I had not had a case in Fairfield County before. It is mostly rural with small towns. But it also has the Columbus suburban community of Pickerington.
I decided to ask questions specific to each juror rather than general questions to the panel. When I started trying cases 27 years ago, we were more interested in “conditioning” the jury than finding out who they are: “Now, ladies and gentlemen, the justice system measures justice in terms of money. It’s the only way we know and it has worked for 200 years. Anyone have a problem with that? Seeing no hands, I conclude that you have no problem.” Now, of course, we have to get to know these people. We need to get them talking and stay out of the way except to say, “please tell me more about that.” So I focused on their children and employment, for example, things they would feel fairly comfortable talking about. I often threw in a David Ball gem like, “So what makes you such a good parent?” Or “what makes you such a good manager?” Or “what were the most important lessons you learned from your parents?” I will do the same thing again next time. I have never had a jury which was so responsive. Many were eager to tell me about themselves. I felt very comfortable with who I was getting, although I had to sacrifice the time to engage in some conditioning about damages, burden of proof, and other questions designed to set up favorable jurors to later be armed in deliberations.
I love telling a story in present tense, focusing on the defendant’s conduct. This case was perfect for it. I had the pleasure to work with Joshua Carton a few years ago at a conference. He is quoted by David Ball for the proposition that you want the jury to become increasingly enthralled during your opening statement until they want to jump out of their chairs, screaming “Nooooooooooo” just before you tell them the final act of the defendant. As I was going through the escalation of the conduct – “Judd leads the child to the loft of the barn. They cuddle.” Then for a later event, “Judd removes the child’s clothing. He touches her breasts …” until I got to the final event of intercourse – “and Judd took from her something that she can never again give to someone” – I could see the anguish in the jurors’ faces. My opening was only 20 minutes. But when it was done, I knew that all I needed to do was call the three girls to verify what I was describing and the jury would then just be thinking about damages.
The defense claimed that Megan and the other two girls were lying, and that Megan had “fatal attraction” (paraphrase from me) and was trying to break up Judd and his then-fiancee, now-wife. The defense kinda went like this:
- These things never happened
- Even if they did, there’s no harm because Megan is excelling
- Even if there is harm, Megan asked for it
The defense attorney was the same guy who defended the criminal case. He is primarily a criminal defense attorney and seemed to be just creating “reasonable doubt.” His themes were not consistent and his demeanor was confrontational.
The most powerful moment from a witness did not come from Megan, her parents or my cross of Judd. Rather, it came from the other victim. This girl is now still only 18 years old, and is about 5’2″ and 90 pounds. She speaks softly and appears meek. When I contacted her a year ago, she did not want anything to do with this case. I have never subpoenaed an unwilling victim, and I hope I never have to. But I held out hope, because I know the progression that survivors of child sex abuse make, albeit on different timelines. Months later, she contacted Megan and said she thinks she wants to testify. I then contacted her, and she had come around to this: “I want to tell the jury my story and I want him to have to hear it.” I got goosebumps all over again just now as I typed that sentence to you. At trial, she was nervous and meek. But she was gaining strength as we went along with her testimony. She was making very good eye contact with the jury. Once she had described the criminal conduct, I said, “Now, ___, you know Judd has called you a liar. How does that make you feel?” She said that hurts the most of all, that not only did he do these awful things to her, but now he won’t even validate her. I asked, “___, why are you here?” This tiny, meek girl looked at Judd with a look that could kill, pointed at him, and said in her strongest voice, “Because he needs to own what he did.” AND SHE STARED HIM DOWN He was staring back at her. I didn’t say a word for a few seconds in that hushed courtroom – I wanted that moment to last forever.
I called Judd on cross. The Judge admitted evidence of his guilty pleas. The Judge in our case was the same Judge who had accepted the plea in the criminal case. I got Judd to say that all three girls are liars. Then I got him to say that he lied to this very same Judge when he admitted he committed crimes and was doing so freely and willingly. When I was done with my concise cross, defense counsel announced for the jury to hear that he would recall Judd in the defense case. When the defense case came around, Judd didn’t testify.
Megan testified at length, of course. Megan did not cry. She was somewhat tough and angry as she went through the details of what happened to her. I understood her mindset but I wasn’t sure the jury would. Megan is very driven and channels her pain into achievement. She was HS salutatorian and is excelling academically at UC. She wants to be a lawyer to represent girls like her. Near the end of her testimony, I said, “Megan, you told that whole story without crying. Why?” She had a great answer, “I only cry when I get really angry. I don’t get sad. I don’t feel sadness any more.” She had already testified to cutting herself just so she “could feel something.”
I called psychologist, Dr. Stuart Bassman, as my last witness. Defense had no expert and had not taken his deposition. He ate their lunch.
Dr. Bassman has treated more than 1000 sexual offenders and more than 500 sex offense survivors. He had evaluated Megan and gave opinions about future damages. I had him cut the legs out from each and every defense: “Dr. Bassman, does the mind of a 15-year-old girl work the same as an adult’s mind when it comes to relationships?” “Dr. Bassman, Megan has excelled since these crimes, how can you say she has been harmed?” “Dr. Bassman, the defense has pointed out counseling records where Megan does not report being depressed and is doing better, is that consistent with your testimony?” “Dr. Bassman, Megan did not fully disclose the facts at first and lied about a couple things, is that unusual for a 15-year-old CSA survivor?” He explained each answer in ways the jury easily understood.
Finally, I had him explain how hurtful it is to a victim to be called a liar, what “validation” means, and how important validation is to a victim.
This was my challenge. Megan had about 20 counseling sessions over a few years. Pocket change for bills, which I decided not to introduce. Given Megan’s successes, I could not claim lost earning capacity, which I often have in similar cases where the child’s development is delayed due to the abuse. So this was all about non-economic and Megan appeared tough and the county is conservative.
The key parts of my closing were like this: “Ladies and Gentlemen, you have made so much happen this week. Without you, this trial would never have happened. Without this trial, Megan would never have found her voice. She never would have gotten to tell her truth in a court of law. And __ never would have gotten to stare down her abuser. And Judd’s lies would never have been exposed … Now we just need you to make one more thing happen – justice for Megan.”
A little later, I said “Megan doesn’t need the Ellingers’ money. She will be successful and I will be so proud when she is a lawyer. And she has great parents who will continue to provide for her. No, she doesn’t need the Ellingers’ money. What she desperately needs is validation. I’m going to disappoint you. I’m not going to suggest a number that represents validation. Megan doesn’t need validation from me, she needs it from you. But as you consider validation, please choose a number which:
- Tells Megan, “we believe you, you are a brave girl and we want to help you”
- Tells ____, “we believe you, you are a brave girl”
- Tells Judd, “we don’t believe you and we want to hold you accountable”
- But most of all tells your community members that this county will not tolerate adults who exploit children
I told the jury they deserve an explanation from defense counsel of why these three girls would lie. But I also told them they wouldn’t get one because there is no coherent theory. Defense counsel didn’t touch it in his closing and I pointed that out in rebuttal.
The jury went out at 11:45 a.m. on Thursday, Valentine’s Day. They ordered pizzas delivered and had a verdict at 2:30 p.m. They found in Megan’s favor on both battery and IIED. They found in favor of Judd’s mom on negligence. They awarded Megan $120,000 for the battery and $80,000 for the IIED.
The trial had been bifurcated on punitive damages upon motion of the defense. The jury thought they were done when they reported their initial verdict. They were not happy when they learned they had to go back in and deliberate punitives. Neither side presented additional evidence nor did we argue the law on punitives. We just let the judge read the instructions and send them back. They spent about 45 minutes on it and came back with $50,000 punitives and attorney fees.
Judge David Trimmer was awesome. He is not very experienced with civil trials, but he was coachable, friendly and laid back. He was excellent with the jury, witnesses and attorneys. Magistrate Jill Boone is a young, talented jurist who will go higher places. Bailiff Josh Butler is a 2017 law school grad whose term is expiring in a few months and is looking for a real lawyer job. He’s a sharp young man, with a very positive demeanor. If anyone is hiring, you should consider him. In general, my experience with Fairfield County was highly favorable. Thanks to OAJ member, Joe Griffith, for giving me some guidance on the system early on.
THE SAPPY STUFF
I am now 57 years old. In the past three years, I have noticed significant physical changes to my body. I can no longer run the marathons and do the triathlons I did for decades. I am far from the lean, mean Marine I was in the 1980s. This taste of mortality has made me start to contemplate my “legacy.” I wonder who will show up to my funeral visitation and what they will say to my five daughters about me. I don’t have any illusions that anyone could tell them with a straight face that I had a material impact on society. Twenty years after I am gone, very few people outside my family will even remember me. But I think this week I added one more person to the list of visitors who will tell my daughters that I helped change her life for the better. And that’s not a bad legacy.