By Michael E. Miller
By Allie Conti
By David Villano
By Jose D. Duran
By Michael E. Miller
By Allie Conti
By Kyle Swenson
By Luther Campbell
After fourteen months of hearings, Bobby Fijnje went to trial in January 1991.
"We were hands-down losers walking into that courtroom," recalls Mel Black, Fijnje's defense attorney. "Everyone was calling us 'Dead on Arrival.'" The local media described the state's case as strong. But as the trial dragged on, it became clear that the prosecution's only compelling evidence was the victims' testimony.
Judge Gerstein had ruled that testifying at court would be too traumatic for the two alleged victims, so their words were presented either in videotape or transcript form. But Black was able to show that the children rarely made any detailed accusations against Fijnje. Frequently they contradicted themselves. Other times the alleged victims discussed ostensibly brutal abuse in an oddly casual manner. According to Donna's mother, her daughter told her one night that Fijnje had had anal intercourse with her. "Isn't that funny?" the four-year-old reportedly asked.
The second alleged victim reported that Fijnje had tied her up and driven her to an American Legion post. But Fijnje, by all accounts, had not yet learned to drive, and nobody from the American Legion had ever seen him.
The defendant's ability to molest children, undetected, in a busy nursery school also invited doubt. Fijnje's co-workers conceded that the boy was left unsupervised occasionally, and sometimes took his charges to the bathroom alone. But he was rarely out of sight for more than a few minutes.
Black's most effective expert witness was Dr. David Muram, an obstetrician at the University of Tennessee in Memphis. A recognized authority on the physical evidence of child sexual abuse, Muram had never before testified for the defense in a sex-abuse case. His one day on the stand destroyed the notion that the two alleged victims showed signs of abuse -- a contention journalists had been reporting since Fijnje's arrest.
Citing the definitive study of hymenal shape in young girls, Muram explained that the "healed tears" found on one girl's hymen were more likely harmless "notches," which appear on many young females. The other girl was deemed abused because her hymen was crescent-shaped rather than circular. Muram reported that about 40 percent of all hymens are naturally crescent-shaped.
Muram said Fijnje could have touched either girl without leaving a trace, by adroitly slipping a single lubricated finger into their vaginas. But using Muram's testimony, Black stressed that the allegations in this case -- of penile penetration, for instance -- would have left damage of the sort never found in either of the alleged victims.
Fijnje, who testified in the last fortnight of the four-month trial, steadfastly denied being the monster portrayed by prosecutors. He described his "confession" to Officer Martinez as a misguided attempt to mollify a bullying policeman. "I was under the impression that I could get out of there and go home if I gave a statement," he told jurors.
In a three-hour closing statement, Black argued that Fijnje's alleged victims were merely saying what they thought their anxious parents and counselors wanted to hear. "I had my doubts about going over all the interviews again," Black says now. "But when I started rereading the excerpts, I could tell the jury was getting the message." The same six jurors who weeks earlier had listened misty-eyed to Donna's videotaped disclosure were now nodding their heads.
Bobby Fijnje's acquittal came as a stunning blow to State Attorney Janet Reno, who at one juncture had half a dozen of her top prosecutors working on the case. Though she never involved herself in the Fijnje prosecution to the extent she had in Country Walk, Reno did meet with the parents of several alleged victims after the trial, and briefly considered filing new charges based on the testimony of other children.
Reno, whose schedule has been hectic since her nomination as U.S. Attorney General, would not respond personally to questions about the Fijnje case. She referred the matter to John Hogan, a chief assistant who helped lead the prosecution of the Country Walk case and who, at Reno's request, conducted a review of the Fijnje acquittal.
Based on his post-mortem, Hogan says he found "no fault with the trial techniques or the other things done in this office." He believes the state's one major mistake was not spending enough money on the case. "We hired one expert where the defense hired seventeen," he notes.
Hogan concedes that he was troubled by the interviewing techniques used by some of the private therapists. "There was a confusion," he says, "between treating kids and trying to develop forensic evidence. But as prosecutors we're not in a position to tell a parent who thinks their child has been hurt not to seek therapy. Or to stop talking with other parents."
Fijnje was tried as an adult, Hogan says, "because he needed treatment past his nineteenth birthday, the limit of juvenile court jurisdiction. That doesn't mean we would have asked that he be incarcerated for life." Hogan also defends the state's decision to limit the scope of the case. "One of the lessons of Country Walk was: go with your strongest counts, don't present every charge," he says. But didn't the children's more far-fetched allegations -- of infanticide and fecal debauchery -- lead prosecutors to question the more subdued claims?