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DUBIOUS JUSTICE

Thomas Thornton faces a dozen years in prison, after having been convicted of molesting schoolchildren. A Times investigation reveals serious flaws in the case against him.

Thomas Thornton entered the courthouse a college-educated, retired businessman. He left in handcuffs, a convicted child molester.

Accused of fondling seven children as he posed them for school photographs, Thornton was investigated by the Pasco County Sheriff's Office, defended by a private attorney and convicted Sept. 16, 1994, by a jury that deliberated for 3{ hours.

After all that, you'd think Thornton got a fair shake from the criminal justice system.

He didn't.

The detective on the case, after a single day's investigation, concluded that Thornton was a molester. He had talked to the children, the accusers, but none of the other people who might have witnessed the crime or refuted the allegations.

The prosecutors offered Thornton a no-jail plea bargain on the seven misdemeanors and one felony he faced. He insisted on a trial. They upped the charges to felonies, which meant Thornton faced up to 15 years in prison.

Thornton's attorney failed to follow a basic rule of evidence, blowing his chance to discredit the testimony of key witnesses.

Thornton, found guilty of five felonies and two misdemeanors, went to jail. Last week, Thornton's wife, Barbara, the principal of Largo High School, hired a new lawyer, prominent Tampa attorney Barry Cohen.

Today, Cohen will ask Circuit Judge Craig Villanti to free Thomas Thornton on bond. To succeed, Cohen has to show that there are substantial reasons Thornton should get a new trial.

There are.

In the past four weeks, the Times examined the sworn statements of witnesses and the sheriff's investigative file and interviewed jurors, school officials, the parents of several students, attorneys, investigators and experts in the field of sex crimes.

From that research, it is not clear whether Thornton fondled the children.

It is clear that, in this case, the criminal justice system took a cursory investigation, added a questionable defense and produced dubious justice.

Picture day

March 18, 1993, was picture day at Mary Giella Elementary.

Thornton was one of four photographers in the school's multipurpose room that day. In an assembly-line procedure, he had 30 seconds or less to pose a child, coax a smile and click the shutter. Teachers stood by, supervising the three classes being photographed at any one time, all day long.

Everything seemed to go well, despite the disruption to class schedules caused by the picture taking.

At 3:30 p.m., school principal Sherry Heyen was orchestrating the most breakneck task of the day: getting nearly 700 children en route to their homes.

Two children approached her _ one after the other _ crying, saying the photographer had touched them in a bad way. Their words were distressing, baffling. But Heyen couldn't take time to sift through them because she had to get the buses on the road.

"I'm kind of standing there stunned," Heyen said. "You're certainly not expecting something like this."

She listened to each child, quickly. She tried to comfort them, quickly. Then she sent them to their bus.

There, the words of these children spread like wildfire.

The two girls, who were still upset when they boarded the bus, had sounded the initial alarm about improper touching. By the time their bus finished its route, there were six young riders claiming they'd been fondled by the photographer.

Heyen returned to her office and the phone calls started. Parents had heard reports of fondling. They were demanding action. Some brought their children back to the school. The Sheriff's Office was called.

Heyen didn't leave the campus until after 9 p.m.

When she got to school the next morning, sheriff's Detective Cliff Blum was waiting.

"Here, within a few hours, we go from statements by (two) children to a detective who totally took this out of my hands."

The criminal case against Thornton involved seven children.

Six of them rode the same bus that day.

Three of the six lived on the same street and two of the three were related. Four of the children were fourth-grade classmates.

All of the seven were connected to each other _ as friends, classmates, neighbors or kin.

The investigation

The initial report from Mary Giella Elementary was sent to the "crimes against children" unit _ a cadre of Pasco sheriff's detectives, who daily encounter the cruelest conduct toward the most helpless victims.

The Thornton case was assigned to Detective Cliff Blum, who was wrapping up his last three weeks in the unit.

Blum did the bulk of his investigation the day he got the case, a Friday.

On Monday, he wrote a 14-page report, in which he concluded the children had been molested.

He reached that conclusion, even though:

He did not seek help from a state Child Protective Team, which is expert at evaluating the truthfulness of children's statements.

He did not ask the children about their conversations with others, which experts say could eliminate the possibility that the children's statements were products of hysteria.

He did not determine the chronology of the children's complaints or make note of their interaction on the school bus.

He did not tape record the interviews to preserve the children's own words.

In his written summary of the March 19 interviews with the children, he quotes none of them. Instead, he paraphrases their complaints in remarkably similar terms, including their identical feelings of nausea after the fondling.

Blum did not interview Thornton's assistant, or the other two photographers in the room that day.

He did not question the children who were next in the photo line or contact other schools where Thornton worked to check for other complaints. "I can't hunt for victims," Blum said.

Tarpon Springs factor

He did interview Guy Ostrom, Thornton's boss at LifeTouch National School Studios Inc. Ostrom gave Blum evidence that could potentially support charges against Thornton.

Ostrom said several fifth-graders at Tarpon Springs Elementary School complained in 1991 about unseemly behavior Thornton exhibited when he photographed them.

"He rubbed my leg and said, "You should come over to my house sometime, sweetheart,' " one of the unidentified students wrote in 1991. "He kissed my hand and he told me, "Let them see your sexy legs,' " another wrote.

Experts in sex-offender treatment and psychology disagree about the significance of the Tarpon Springs incident.

Some told the Times that the 1991 and 1993 incidents suggest a pattern of escalating behavior common among sex offenders.

Others said the two incidents shed no light on whether Thornton is a sex offender.

After the 1991 complaints, Ostrom gave Thornton a written warning about using indiscreet language and physically positioning students without warning them in advance.

Blum telephoned the school in an unsuccessful effort to track down the children or teacher involved in the 1991 incident. He spoke to the retired principal, who had little memory of the incident.

Blum was unable to locate Carolyn Peake, Thornton's assistant at Tarpon Springs, whom Thornton suggested as a witness.

The Times found Peake, who didn't recall the problem at Tarpon Springs Elementary. "I've never seen or heard (Thornton) do anything wrong," she said. "He was always very professional."

In his interview with Blum, Thornton said the Tarpon children misquoted him. He also denied the Mary Giella Elementary accusations.

Blum described Thornton as "pretty sure of himself. . . . He seemed to have something of an aggressive personality, but he didn't go into any theatrics. He just waved the flag and said, "I'm innocent.' "

Blum, who has received numerous citations for courtesy, kindness and thoroughness, said that in his eight months in the crimes against children unit, he investigated 65 cases _ "none false."

Blum said this one wasn't false either. "When I asked these kids, "Do you think (Thornton's touch) was on purpose or accidental?' they were so firm, so purposeful," he said. Their certainty made him "more inclined to side with the children," he said.

He referred further questions from the Times to his former supervisor, Pasco sheriff's Sgt. Phyllis Davis, who declined to comment.

The trial

At first, Thornton was charged with one sexual offense, felony fondling, for allegedly touching one girl's crotch. He was also accused of improper contact with seven other children _ misdemeanors.

Despite the shocking allegations, prosecutors offered him a deal in return for not fighting the charges: probation instead of jail, and no judicial finding of guilt.

Thornton, adamant that he was innocent, refused. Prosecutors then charged him with seven felonies. The case record contains no new evidence to explain the more serious charges.

The alleged acts were the same, but when they were designated felony charges, Thornton's possible penalty skyrocketed.

Increasing charges isn't unusual, said veteran criminal defense attorney Pat Doherty. There are many reasons for doing so, but Doherty and New Port Richey defense attorney J. Larry Hart say they often suspect such actions to be retaliation.

Prosecutors first wanted to plea bargain because the case against Thornton was considered weak, said Jeff Haynes, a senior prosecutor in the office before being fired in September for insubordination: "Everybody in our office knew the case was a piece of s---."

But he said the office wasn't going to drop the case, for fear of looking bad:

"I'm absolutely confident that the big reason behind it not going away was that somebody had the idea that then the newspapers would get wind of the case."

Ethical rules prohibit prosecutors from discussing cases still before the court, said Pasco state attorney supervisor Dick Mensh. Still, he said, there are plenty of sound reasons for prosecutors to increase charges that have nothing to do with retaliation.

Mensh declined to address Haynes' comments directly: "It sounds like sour grapes not worthy of comment."

Still, he added, "If somebody thinks this was a weak case, how did six people in Pasco County convict him?"

Contradictions

Thornton hired David Rankin, a Tampa lawyer, to represent him.

Rankin conducted a pretrial investigation that unearthed a wealth of contradictions in the children's statements.

One boy told his mother nothing happened, then told his teacher he'd been grabbed by Thornton. Another boy retracted his statement that his penis was touched.

A third boy told his mother that Thornton clenched his genitals in a fist, causing lasting pain. He told the detective about a brush against his crotch with the back of a hand, contact he first thought might be accidental.

Several girls said they were distraught immediately after the photo session, but their teachers saw no emotional reactions at that time. Several children who denied talking about molestation on the bus were contradicted by other passengers.

The bus driver testified that the children didn't talk during the ride home. But several passengers described bus conversations about the photographer touching kids _ and one parent related that the driver had polled children looking for victims.

But the most puzzling and potentially significant conflict was raised by the timing of the first child's complaint. Around 11 a.m., she reported that her best friend had been molested. But according to the record, Thornton did not photograph the friend until about 3 p.m.

The jury never had a chance to hear most of these details because Rankin failed to follow a basic rule of evidence. He did not confront the children with most of the contradictions in their testimony while they were on the stand.

Under court rules, that meant he gave up the right to bring witnesses who could have pointed out contradictions in the children's statements.

There was another problem.

Before the trial began, Villanti barred the prosecutor from bringing up the Tarpon Springs accusations against Thornton.

He didn't. But he did ask several children if they had ever attended Tarpon Springs Elementary.

Rankin sat silent while the question was asked at least twice. Finally, he objected. But the question had already had an effect on the jury.

Rankin did not present testimony from a psychologist on how hysteria can cause children to make false sex-abuse accusations.

He did not give the jury a benign explanation for the events of the day. He didn't suggest how an act could be misinterpreted by one child, and then in the confines of a school bus, evolve into an epidemic of accusations.

He did obtain copies of the portraits Thornton took of the seven accusers. All the victims testified that they were distraught when the shutter clicked. But the pictures showed all smiles.

In closing, prosecutor Robert Attridge suggested that Thornton kept the victims in the chair while he took a series of photos, then discarded the ones with unhappy expressions.

Rankin didn't object, though his case file contained the film. And the film held only one photo of each child.

Attridge pounced on Rankin's promise to show the children told contradictory stories. "Where was all this evidence," Attridge asked, "that was supposed to come in that these children had changed their stories?"

Rankin, whose procedural error caused the gap in testimony, said nothing.

He declined to respond to the Times' questions. He wrote:

"In view of the fact that the matter is pending before the Court and I will be involved in some capacity in the future, it would not be appropriate for me to respond. I have and will continue to cooperate with Mr. Thornton's attorney so that the best possible result can be obtained."

The verdict

Right away, the jurors took a vote.

Three said guilty. Three said innocent.

Juror Thomas Burnette reminded the other jurors of the Tarpon Springs references.

"The prosecuting attorney brought that up three or four times," Burnette told the Times. "We was wondering why he kept bringing it up."

One juror, who didn't want her name published, said she knew why the prosecutor mentioned Tarpon Springs. "They are not allowed to bring any other previous offenses that the defendant had made," the juror said. "He (Thornton) could have murdered 1,000 people and we would have no idea."

Four jurors, interviewed by the Times, believed the prosecutor wanted them to catch the Tarpon Springs reference. All four said Rankin did a dismal job.

"I saw him in another case," said juror Karen Desiderio. "I thought he was poor then, and poor now."

The four jurors wondered why no one testified to Thornton's character. And they said they were surprised by Thornton's demeanor in court.

"He was so comfortable, he cracked jokes with the judge," Desiderio said.

Jurors could find no reason the children would conspire against Thornton.

"It came down to: Who do you believe?," Desiderio said. "I believed the kids.

"I'd feel really bad if I sent a man to jail who didn't deserve to be there. But I'd feel worse if I let a pedophile out on the streets to do it again."

After 3{ hours of debate, the jurors agreed that something had happened to the children. They discussed finding Thornton guilty of misdemeanors instead of felonies.

But the ballot said the misdemeanor was "battery." They thought the judge said the lesser charge was "touching."

The jurors weren't sure those were identical terms.

Finally, Burnette pointed out that the felony charge included the word "handling." Did that sound appropriate? he asked the other jurors.

Yes, that was it. Thornton was guilty of "handling" children.

One female juror told the Times that she thought Thornton "could be reprimanded _ maybe not sentenced to jail, but given civic duties like scrubbing. Maybe he shouldn't be in that business anymore."

Burnette said Thornton "needs help, but I'm not saying he should be locked up."

Despite the jurors' wishes, Thornton faces up to a dozen years in prison.

Sherry Heyen, the principal at Mary Giella Elementary, was dumbfounded by the jury's finding.

"We spent a lot of time in the year and a half thinking about (this)," Heyen said of herself and her staff. "How could this happen with so many people present? There was a lot of soul-searching. . . .

"When I heard the verdict, it was almost like my heart sank.

"For me it was, "They actually think he's guilty. What did they know that I didn't know?' "

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