A Loudoun County Circuit Court judge has vacated the 1998 conviction of a Leesburg lawyer accused of sexually abusing his children, saying the man’s attorneys failed to provide an adequate defense.
Judge Donald Kent last month ordered a new trial for Bruce McLaughlin, whose case had garnered international attention because of its custody issues and the involvement of the World Court at The Hague.
“This was not a case where there was overwhelming direct evidence of guilt,” Judge Kent said in a Dec. 21 ruling. “The court finds that there is a reasonable probability that there would have been a different outcome” if McLaughlin had better representation.
Robert Anderson, the Virginia commonwealth’s attorney who prosecuted the 1998 case, said the state’s Attorney General’s Office was scheduled to announce this week it would appeal Judge Kent’s decision. Mr. Anderson said if the state loses the appeal, the outcome of the retrial will be the same, if not worse, for McLaughlin.
“Sometimes when you try a case a second time, it gets stronger,” he said, adding that McLaughlin could face up to 52 years in prison.
McLaughlin, 49, a former contracts lawyer, was convicted of nine counts of child sexual abuse and sentenced to 13 years in prison.
Judge Kent ruled McLaughlin’s attorneys Harry Volzer and William Schewe did not dig hard enough to discern the truth of statements entered as court testimony from McLaughlin’s children. At issue were notes the children wrote about the suspected abuse and transcripts of interviews conducted by the Leesburg Police Department.
McLaughlin said the transcripts indicated the children answered yes to certain questions that audio recordings of the interviews showed were not answered at all.
Mr. Anderson denied any tampering with the transcript. Inaudible answers on tape likely were made with body language, like nods or shrugs, he said. He contended that McLaughlin’s attorney had access to the tapes and transcripts.
Mr. Volzer and Mr. Schewe did not return calls. Leesburg Today reported Mr. Volzer testified last month that he never received the tapes.
Marvin Miller, past president of the Virginia College of Criminal Defense Attorneys, says McLaughlin likely would prevail on appeal.
“For habeas relief in Virginia at the trial court level, you’re looking at a very small percentage,” Mr. Miller this month told Legal Times, a national weekly newspaper. “But Kent is very careful. If Kent ruled the conviction should be vacated, he is more likely than not on firm footing.”
McLaughlin has four children, sons who were 12 and 10 in 1998 and twin daughters, who were 7.
Despite the children’s youth, their original testimony was strong enough without the notes, said a senior law enforcement official familiar with the case.
The ordeal began during divorce proceedings in 1998, when McLaughlin told his wife, Robyn, about an affair he had early in their marriage. He said he told her because he wanted to come clean.
Five days later, on May 21, 1998, Mrs. McLaughlin filed a complaint with the Loudoun County branch of the Virginia Department of Social Services saying he had sexually assaulted their four children.
“I was closer to my children than my wife was,” McLaughlin said in a telephone interview from prison in Leesburg.
Mrs. McLaughlin could not be reached for comment.
McLaughlin’s case got a boost in November 2000, when a hearing officer for Social Services examined how the children had been questioned, listened to their recorded interviews and read their notes, which appeared to have been written under Mrs. McLaughlin’s direction.
Hearing officer Michelle Gillette declared the charges “unfounded” after concluding the investigation, which had been prompted by an appeal by McLaughlin.
Mr. Anderson says Miss Gillette based her decision on an inadequate hearing, adding that the prosecutor’s office was not notified about the hearing and did not adequately participate in it. Miss Gillette’s conclusions would not be admissible in a retrial.
In 1999, Mrs. McLaughlin took her children to her homeland in New Zealand even though Judge James H. Chamblin three times had told her not to do so. Last year, the World Court, which required children in international custody cases to remain in their native countries, ordered Mrs. McLaughlin to return the children to the United States.
While his wife was out of the country, McLaughlin made a deal with another inmate who was due to be released to go to New Zealand, kidnap his children, and return them to the United States. Prison authorities uncovered and thwarted the scheme before it could be carried out.
“It was a bad decision on his part,” says Alex Levay, McLaughlin’s current attorney.
Mr. Anderson says the state did not bring conspiracy charges against McLaughlin because his children had been through enough and there would be little to gain.
McLaughlin, who is still in prison for trying to escape last year and is not eligible to be freed until later this year, has filed a $6 million lawsuit against Mr. Anderson and his office, accusing them of prosecutoral misconduct. “He put me in jail for 31/2 years for something I never did,” McLaughlin said. “He knows [I didnt do this], and that’s what kills me.”
McLaughlin says he is willing to drop his lawsuit if Mr. Anderson would allow Dr. John DiTriquet, a pediatric specialist, to examine his children. In the 1998 trial, Dr. DiTriquet testified on McLaughlin’s behalf that, based on photographs, he did not believe the children had been assaulted. The prosecution’s physician, who examined the children, determined they had been assaulted.
Alex Francuzenko, the attorney representing Mr. Anderson and others in the civil lawsuit, said a reporter’s inquiry into the matter was the first he or his clients had heard about a settlement offer.
“I have not had any conversations with Bruce McLaughlin with regards to settlement,” Mr. Francuzenko said. “This is the first I have heard about it If an offer had been made, it should have been made through [my office].”
The senior law enforcement official, who also was unaware of the offer, said it was unlikely such an agreement would ever be reached. “That would be self-serving,” he said. “[Mr. Anderson] would not put his own interests ahead of this case.”
In September, the Virginia Supreme Court ruled in Clark v. Virginia that the accused in a statutory rape case did not have the right to require a physical examination of a victim.
McLaughlin is not likely to be released anytime soon. Mr. Anderson said because of his conduct before the 1998 trial when McLaughlin violated court orders barring him from contact with his children the state would argue that he not be released.