criticized in court
Summit prosecutors say girl manipulated to alter testimony against uncle
Beacon Journal staff writer
Posted on Tue, Aug. 20, 2002
Prosecutors claim a 10-year-old girl was hypnotized before recalling that her imprisoned uncle was not the man who beat and raped her after killing her grandmother.
In court papers filed Monday, Summit County prosecutors say this new revelation is further proof that the girl's newly found memory has been manipulated or coached.
The girl's uncle, Clarence Elkins, 39, is seeking another trial based on new evidence, including his niece's new account of the attack four years ago inside her grandmother's Barberton home.
The then 6-year-old girl testified against her uncle in 1999 and convinced jurors that Elkins was guilty of attacking her after raping and killing her grandmother, Judith Johnson.
Elkins is serving 55 years to life in prison for the murder of his mother-in-law.
But last winter, the girl told her family and Elkins' attorney that she no longer believes her uncle is the man she saw. Further, she now believes the culprit was another man who resembles Elkins.
Prosecutors are fighting Elkins' quest for a new trial. They say the girl's identification of Elkins as the intruder was immediate and unwavering.
They contend she has been coached into saying someone else committed the crime.
Prosecutors point to the hypnosis as another example of the girl's being manipulated.
``The state believes that this (hypnosis) session was the first time (the girl) `revealed' the new facts the defendant now relies upon,'' Assistant Prosecutor Richard Kasay wrote in a motion asking Judge John Adams to dismiss Elkins' request for a new trial. ``This is a fraud on this court.''
Elkins' attorney, Elizabeth Kelley, said the 30-minute hypnosis session brought no new revelations and only confirmed her suspicion that authorities influenced the girl's testimony four years ago.
In fact, she said the girl reverted under hypnosis to her trial testimony in which she said that her uncle committed the rapes and killing.
In the weeks leading up to the hypnosis, the girl made statements that she was unsure of her identification of Elkins. Since the session, she has filed statements with the court in which she rules out Elkins as the assailant.
Prosecutors want Adams to discount the girl's new identification and rely on her trial testimony.
``It's interesting that four years ago, prosecutors were happy to rely on this little girl and take her for all she was worth. Now, with a new memory, they're all too happy to discount what she is saying,'' Kelley said.
``At the same time, they still fail to address the most fundamental question: Where's the physical evidence to tie Clarence Elkins to this case?''
Elkins was arrested about six hours after the killing, but not one piece of physical evidence ever linked him to the killing and rape.
He has steadfastly maintained his innocence and has said his niece mistakenly identified him.
Prosecutors presented evidence at trial that Johnson, 58, voiced fear of Elkins and that the former Magnolia factory worker was angry at his mother-in-law for meddling in his marriage.
His niece testified at trial that she was sure it was Elkins who attacked her ``because I saw his eyes.''
She now says the eyes she saw were brown and did not belong to her blue-eyed uncle. In an affidavit given to Elkins' attorney, the girl said that another man, developed as a suspect by Elkins' private investigator, Martin Yant, is the real killer.
``My mom then showed me a picture of a man who looked a lot like Uncle Clarence except that he had brown eyes. When I saw the picture, I said, `That's him. I'll never forget those eyes,' '' the girl said in the affidavit.
Elkins' team said the girl awoke from the attack and told neighbors that ``someone who looked like Uncle Clarence'' was responsible. That statement, they claim, was manipulated and carved into a positive identification of Elkins by the time she testified at trial.
They say their suspect looks and speaks like Elkins and had an attraction to Johnson that was not returned. They say the man, who still lives in Summit County, had scratches on his body the day after her killing.
He also had a conviction as a juvenile for sexually abusing a girl with an object, a crime similar to the act against Johnson and the girl.
In addition, they say hair and blood evidence was either overlooked by Barberton police, lost, untested or did not match Elkins.
No DNA tests have been conducted to either confirm or eliminate the so-called suspect developed by Elkins' team.
They have asked Adams to order the DNA tests, but the judge questioned at a recent court hearing whether he had the authority to make such a demand.