Zachary Margulis-Ohnuma

Just Who is the Victim Here?

By Zachary Margulis
Originally Published in Gauntlet #12, 1996

1. The year is 1984, not an easy time, really, to be a mom or a dad. There are, after all, demons everywhere: over in California, they have the McMartin Preschool case, where more than a dozen teachers participated in a bizarre sex ring with little victims. Other cases of sex abuse at day care centers seem to be making news every month. And things are such a mess here, in the Bronx, New York, that no one really knows whom to trust. That city-funded day care center seems nice enough, but ever since he started going there, little Manny is not himself. He is, in the words of his mother "like a little boy locked in a shell without any soul or any happiness." She didn't really understand what could be wrong until Manny started talking about "robbers" who do bad things to him during nap time at the Westchester-Tremont Day Care Center.

   The other three-year-old kids see monsters there, too. Besides the robbers, little Harry Ogden [not his real name] sees "Ingle," who hit him with a bat. Tiffany Belton sees "Jason's Father" and other children see "The Hulk," or a bad man in a black suit. Manny noticed it first, around Easter, when he told his mother that a robber reached under his blanket and played with his penis and put a pencil in him. Manny's father knows an FBI agent, and called him in to talk to the little boy. Shortly, a special task force to fight child abuse went to work on the case. They interviewed kids who had left the school, kids in class. They broke in at night and surreptitiously hid video cameras in a classroom, the gym and even the bathroom. Those didn't turn up anything bad in 640 hours of surveillance, but that doesn't matter. The FBI agents and police know that child abuse has been ignored too long. It is time to believe the children. And the children say something horrible is taking place at Westchester-Tremont. They say a black man is raping and sodomizing three-year-olds at nap time. They say the man is the Rev. Nathaniel Grady, a Methodist minister who works across the hall from the daycare center. The FBI and police believe the children.

   "Nap time was not a time for six little kids to dream," prosecutor Eric Warner would say later, before a jury. "This nap time was a time for six little kids to live through a nightmare."

2. In 1984, five people were arrested and subsequently convicted for sexually abusing 20 toddlers at three city-funded day care centers in the Bronx. Four of the five were later freed, quietly released on appeal. Only Nathaniel Grady, now 59, remains imprisoned in upstate New York, rotting away on the basis of little more than the ambiguous, confused testimony of small children and the zeal of ambitious prosecutors. Since that time, the early 1980s, no cases of child abuse at daycare centers have been brought in The Bronx or anywhere else in New York City. Indeed, the most famous case on the East Coast — that of Margaret Kelly Michaels in New Jersey — has crumbled on appeal and led to a lawsuit against the prosecutors. The reversal of fortune can mean only one of two things, both of them unthinkable. Either New York was struck by a short, brutal wave of almost unimaginable horror at day care centers and the perverted abusers now roam free; or prosecutors, caught up in a political climate, unwittingly perpetrated a hoax that unjustly jailed a half-dozen people and caused needless anxiety to untold numbers of parents.

   "I don't mean to suggest there is no such thing as sex abuse of children," says Joel Rudin, Grady's attorney, who successfully appealed two of the other Bronx cases. "But these Bronx cases are totally fictitious.... With all the different children — we are talking about close to 20 children — I am not aware of a single instance of any physical evidence except of the most inconclusive kind....It is inconceivable that all this was happening and not one time did anyone else notice it."

3. At age 46, Grady was a newly appointed pastor at Westchester United Methodist Church, just off Westchester Square in Zerega, a middle-income, ethnically diverse section of the Bronx. He had an office in the squat brick building behind the church that housed the day care center. From time to time he would poke his head in and say hello to the kids. At Christmas, he dressed up as Santa Claus. He is tall, bald and bearded, normally dressing in the black frock of his profession.

   Grady, who is from the City of Yonkers just north of the Bronx, was well-known in the community. He had been an ordained minister since 1957. He was a police captain and instructor in the Yonkers Police Department. He led youth programs, civil rights activities and was chairman of the board of St. Joseph's Hospital. He had a wife and two children of his own. Though he was new around Zerega at the time of the accusations, he had professional contacts and experience with children stretching back nearly 30 years.

   The way the prosecution tells it, the case began around Easter of 1984 when three-year-old Emanuel Lopez, known in the press as "Manny" (the perverse hypocrisy of protecting the identity of the accuser but publishing that of the wrongly accused is rarely more manifest than in this case), told his mother something bad was happening.

   "This robber would go under the blanket in his bed and take down his pants and play with his penis and put the pencil in his rectum," Manny's mother said later.

   Manny's parents called in the FBI, which deployed its Joint Task Force on Sexual Abuse of Children, including FBI agents, New York City police, and investigators for Bronx District Attorney Mario Merola. Before long, the investigators were convinced a total of six preschoolers were abused at Westchester-Tremont Day Care Center. They seem to have focused on Grady as the suspect by process of elimination. The vague, contradictory descriptions the children were giving didn't really fit anyone else and, they argued, Grady was around enough to have had the opportunity. The children's teachers said there was an adult with them virtually all the time; that Grady was never left alone with the children. One of the kids, Tiffany Belton, testified that the teachers were actually present when the abuse took place. One of the teachers, Ilse Lorenz, said the district attorney's office brought pressure on her to implicate Grady. The best she could come up with, though, was that she saw him leading a child to the bathroom while another child, Tiffany Belton, looked "petrified." She did not, however, report the "incident" because at the time it seemed innocuous.

   After collecting testimony, FBI agents secretly placed video cameras behind an air-conditioner in a classroom, and in the gym and bathroom. They watched children go potty. Grady showed up three times on the tapes in a one-month, 640-hour period. But he made "no overt sexual advances."

   While there is little question the officials were acting out of concern for the children, they were under great pressure to make a case. Internal FBI memoranda released at trial discuss the value of a high-profile case to offset the devastating loss in the McMartin case in California. The memoranda explicitly discuss who gets to be at the press conferences announcing Grady's arrest and indictment. What is more, the parents filed suit against the day care center, hoping to gain financially from what their children may have gone through.

   "The message from the Manhattan Beach, California case (McMartin) was the difficulty of law enforcement to detect and prosecute cases of this nature," read one of the cables from the FBI field staff to headquarters. "Captioned matter, with its projected attendant publicity, would send a message that law enforcement is not impotent...."

   Another cable gloats that "it is still the intention of the Bronx District Attorney's Office to heavily publicize any indictments, and the role of the (joint task force) in obtaining same," and goes on to mention front page articles in the New York Times and Newsweek.

   When detectives from the district attorney's office wanted to interview Grady, he was happy to comply. He did not ask for a lawyer and offered to take a lie detector test, but the prosecutors declined (he later passed a polygraph test administered privately by Nat Laurendi, a well-known expert; prosecutors were not interested). On October 10, 1984, a Bronx grand jury indicted Nathaniel Grady on 42 counts of sexually abusing children.

4. The 1984 indictment, further explained by a "bill of particulars," contains a fatal flaw that should have sprung Grady from jail already, according to his lawyer, Joel Rudin. The indictment does not allege individual acts of abuse — the children were not able to pin down what happened so precisely. Instead, it alleges a "continuous course of conduct," by Grady over time. According to the indictment, then, prosecutors did not have to prove any single act on a particular occasion. When they had trouble getting the children to specify a single act at a particular time, they would change their interpretation of what happened to whatever inconsistent statement the child was making.

   "They wanted to be free to change their theory every time the proof changed on them," attorney Rudin says. The Bronx DA's office refuses to comment.

   New York statutes specifically ban "duplicitous" indictments — that is, charges that allege more than one incident in each count. This rule is more than a nit-picky technical requirement. To put someone in jail, prosecutors have to argue the defendant committed a single, specific act on a particular occasion that broke the law. Alleging a "continuous course of conduct" without nailing down a specific act is thought to be impossibly slippery. There is no fair way to defend against it.

   Around the time Grady was brought to trial, four other Bronx day care center workers were indicted and convicted of abusing children. Bronx judges, known more for their political acumen than for their legal wisdom, responded to the tenor of the times (I covered Bronx politics, including the selection of judges, for two years for the New York Daily News). Essentially, they found the alleged crimes so heinous, so horrible, that they lowered the standard of proof. Rather than chance freeing child rapists, the judges bent over backwards to let prosecutors bring cases to juries. They let five-year-olds take the witness stand, they misused rules governing the use of closed-circuit television, they permitted duplicitous indictments, they allowed leading questions by prosecutors who spent hours alone, unrecorded with the children. In one of the cases, a judge ridiculed the defense attorney for bringing up on cross-examination that the prosecutors were giving children candy after they said something that bolstered the prosecution case. Under the "believe the children" mantra, the arguments that should have helped the defense instead became elements of proof that horrors had taken place. If a child could not pick out his abuser, that was seen as proof he was abused because he was obviously terrified. If a prosecutor asked a witness the same question twice after getting an answer that he did not like, that was OK because abused kids have special needs. All this served to play up how heinous the alleged crimes were, and to shut up anyone who might demur.

   The other Bronx defendants, Albert Algarin, Jesus Torres, Franklin Beauchamp, and Alberto Ramos, were convicted and then freed, all for similar reasons: the judges did not permit a fair trial. There simply was not evidence to meet the rigid standards of proof required under American criminal law, so the Bronx DA's office had to — and did — ask the judges to change the law to fit the evidence they had. Appeals courts subsequently threw out the jurisprudential gymnastics that local judges permitted. If a ruling by a Federal court in June stands, Grady may go free as well.

5. We know more now.

   No one kept records of the interviews of the children by officials in the Bronx cases, but in other cases around the country, the transcripts of those interviews destroy the prosecution's case. In the two most notorious, the Margaret Kelly Michaels case in New Jersey, and the McMartin case in California, it is clear that overzealous prosecutors put words in children's mouths. We will never know, exactly, if that's what happened here, but we do know that none of the kids could identify Grady in the courtroom without prompting. We know that the children and their families became close to the district attorneys. We know that some of the kids were interviewed 40 or 50 times before the case was brought.

   The charges against Grady required shaking the very core of how we look at the world. Can someone familiar, a man of the cloth with a pristine reputation for three decades, suddenly become a vicious pedophile overnight? Can we trust our kids anywhere? Are there unknown demons lurking behind every door? The prosecutors and parents said yes. They said believe the children.

   "In that center," said assistant district attorney Warner, "they were perfectly safe from the world outside. It is a brick building, all the doors have locks, all the windows had gates. Of course, as it turned out, the problem was not with the outside world. The problem was in the center's own midst."

   The irony is that Warner is dead wrong. The center did provide a safe haven: the problem was brought in by outsiders, who walked in with their cameras and bugs and interviews and represented a kind of authority. The center's workers came to question what they knew, deferring to the self-proclaimed experts. The teachers should have been certain the children had not been abused — they were with them virtually the entire time. The children knew they weren't abused, either. Upon questioning, the testimony of three-year-olds was misread, a fantasy became a false memory, which became, in the eyes of the prosecutors, reality. When prosecutors started to believe the children, adults at the school in turn believed them. Outsiders — the prosecutors — did indeed hurt the children, but only because they were given the key to those locked doors.

6. In June of this year, a Federal court finally accepted Grady's latest appeal. His lawyer, Rudin, argued that his past appeals were incompetent, that any criminal appeals lawyer should have brought up the duplicity argument (a Yonkers civil rights lawyer with little experience in criminal law handled Grady's appeals until Rudin came in in 1990). The Federal court remanded the case to the state courts, saying that if they do not rule in 60 days, Grady will be freed.

   That puts the ball back in the court of the Bronx District Attorney, who is now Robert Johnson. Johnson is perhaps the most liberal and studious DA in the state. He shuns the media and does not generally tell anyone what he is going to do until he does it. In this case, his office is faxing out 17 pages of Mario Merola's old press releases, and saying that they have not decided whether they will fight Grady's appeal.

   Grady himself has affected a gracious resignation. He tells the newspapers that he is grateful for all that has been done for him, that the Methodist leadership has stuck by him (he is on leave of absence), that his friends have not believed the charges. He serves as a prison chaplain and, apparently, is not subject to the abuse most child molesters get from fellow inmates.

   "I'm still operating in numbness," Grady told a former colleague of mine at the Daily News. "I am deeply grateful. A decade is a long time to be incarcerated for something I wouldn't even think of doing."