by Tonya Craft
It was right around 2:00 A.M. when I started all the way back at the beginning of Chloe’s very first interview and gave it another listen. I looked at the transcript, at one of the questions right near the top—shortly after Tim Deal introduced himself and reminded Chloe that he was a police officer who had known her family for a long time.
“And you’re not in any trouble and you’re not here to get your friend in any trouble … I just need to know the truth. Uh. Do you remember anything about that?” the transcript read.
“Yeah, uh, I just remember a place and, uh, uh, (INAUDIBLE) where they touched me …” Chloe said.
I paused the recording.
Oh my gosh. What she said wasn’t “inaudible” at all. I backed it up and listened to it again, and wrote down Chloe’s words exactly. What she said, clear as day, was, “Yeah, uh, I just remember a place and, uh, uh, my mom told me which is which and where they touched me …”
My mom told me which is which and where they touched me.
“My mom told me” changed the meaning of the entire interview that followed, in my opinion. And it wasn’t muffled or distorted at all. I listened to it a whole bunch of times in a row, and I couldn’t understand how none of us had caught it before. Her words were clear as day! I didn’t adjust the tape. I didn’t alter any settings. I didn’t have it enhanced by some professional in order to bring it to light. All I did was listen. Really listen. The way any professional transcriber who’s working for the Catoosa County detectives on an alleged child-molestation case should surely be listening themselves, I thought.
I called Doc right away. He didn’t pick up. I called Cary. I called Scott. I called Clancy. Everybody’d gone to sleep and must’ve turned off their phones. This was a key piece of missing evidence for our defense against Chloe, and really, in a way, our defense against everything. It seemed to me that all three of the girls’ interviews had very clear mention of directions and ideas they were given by either their mommas (in Brianna’s and Chloe’s cases) or their daddy (in Ashley’s case). To me, it felt like I’d found a missing piece of the puzzle—and it was sitting right there in front of us the whole time.
I drove back to the house at about 6:00 A.M. I didn’t even shower first. I just ran in and said, “Guys, you’ve got to listen to this and tell me what you hear.” I didn’t tell them what I thought it said. I made each one of them put the headphones on and listen for themselves, independently. I had them write down what they heard and then fold up the piece of paper and hand it to me. I wouldn’t let any of them speak a word of it to each other. Somebody got the coffeepot going.
As I unfolded the pieces of paper, I held them up for everybody to read. Every single member of my team heard the same words that I did. They all wrote down the exact same thing: “My mom told me which is which and where they touched me.”
Judge House started day eight of my trial by denying our request to throw out Suzie Thorne’s testimony. Of course. Then the prosecution called their next “expert” interviewer, Stacy Long—the woman who’d conducted the very first interviews with Brianna. They presented Long basically the same way they had presented Thorne, by listing her credentials and training, and Doc got up and broke all of that down again, getting Long to admit that she didn’t read peer-reviewed journals on the subject about which she claimed to be an expert and that she didn’t know about certain cases that were very prominent in the history of child interviews, etc.
Doc then questioned her for several hours about the way she interviewed Brianna. He especially seemed to hammer her on the moment when she asked Brianna if “Tonya” had asked her to touch me back.
“Had the child brought up any idea whatsoever about Tonya requesting to be touched by a child?” Doc asked her.
“No,” Long said.
“That idea came from you,” Doc said.
“That’s a common question to ask in a forensic interview,” she said. “Reciprocal touches—but, yes, I brought it up.”
Doc used more examples directly from her own interviews with Brianna to ask whether her “introducing ideas” into the discussion could have caused the child to then incorporate her words and ideas into the child’s memories and descriptions of what happened.
Long’s basic response was the same as Thorne’s: She didn’t think so, and it wasn’t her intent.
This was certainly one of Doc’s biggest areas of expertise, going all the way back to the “mousetrap studies” and more. He’d stood in front of that jury three times now, with all three of the State’s biggest experts, and in my opinion had shown that they really weren’t the authorities they claimed to be.
He also asked Long extensively about the possibility of parental influence on the interviews. “Possible parental influences?”
Long threw her hand up in the air. “I don’t know,” she said. “I mean, I don’t know where she got it from.”
“Possible rumor formation?”
“Possible,” Long said, shrugging.
Well, d’you think you might’ve mentioned that there were signs of parental influence and rumor formation when it happened? How could you not include any of that balancing information in your summary of that girl’s interview?
I wished I could’ve stood up and yelled at her. Luckily, I had Doc there to stick to the facts without ever losing his cool.
When the prosecution called Detective Tim Deal to the stand next, I felt like I was going to fall right off my chair. Could this be it? I wondered. I expected they’d call him to the stand last. What about Joal and Sarah? Are they skipping right over them?
Deal got up there in a gray suit with a blue diagonal-striped tie, looking very official, and he put reading glasses on to read his own reports of the day he came and knocked on my door. He then proceeded to testify to details that drastically contradicted my memory of what happened that awful day, right from the very beginning—just as he’d testified during the motion hearing at the start of the trial.
He told that jury that when he mentioned the allegations to me, I turned so “beet red” that my face was almost “purple.”
“She became just flushed, almost like a fight-or-flight type syndrome reaction,” he said. “She started becoming very nervous,” he added. “I thought she was gonna hyperventilate.”
Even if that wasn’t an overblown exaggeration of my reaction, I thought, wouldn’t that be a perfectly fitting reaction for someone who’s just been accused of something so horrible? It’s almost like there’s no correct way to react. These prosecutors and detectives will spin anything you do just about any which way they want. If I had stood there calmly, they would have called me “stone cold.”
All in all, I didn’t think there was anything unexpected or telling about Deal’s testimony. He recounted the story that the prosecution had seemed to try to paint from the start. He basically stuck to the story that Len Gregor had laid out during his opening statement.
It seemed to me that wherever there was something that had gone unexplained in the prosecution’s case, Deal was right there ready to explain it. For instance, he recounted the way Detective Stephen Keith had told him about the charges Brianna made at the Greenhouse—and then the prosecutors produced a copy of the written report that Keith had supposedly written to document Brianna’s whole-hand-penetration charge that she made to Suzie Thorne. A document that had never appeared before that moment, in nearly two whole years. My attorneys went nuts over that one. They demanded an original copy of it so we could have it ink-dated. They demanded an immediate investigation of the prosecutors’ and detectives’ computers to confirm the originating date of this “newly created evidence.”
Of course, none of that would come to pass. The judge would simply note our objections but never order any kind of an investigation whatsoever.61
As the hours ticked by, the judge ordered a recess until the next morning. Deal would continue on the witness stand. He showed up in a light gray suit this time, with a dark red shirt, and he went over
the timelines of the interviews he conducted.
He actually sat up there and had the audacity to tell the jury that he proceeded with “caution” as the case went forward, because he was aware of the “sensitivity” of the case—because I was a teacher, he said.
Under cross-examination from Scott, he admitted that he’d seen cases where children had been influenced and essentially given false memories by adults. He said that it usually happened in drawn-out custody cases, as far as he had seen. We put some former testimony in front of him, from a case where he himself had testified that younger children are “more susceptible” to suggestion.
He agreed that parents questioning their children before a forensic interview could sometimes taint a child’s recollections.
He agreed that when it comes to small children, it is his responsibility to work hard to “investigate” the allegations and to look for “evidence”—not simply to rely on the words of the accusers.
He agreed that forensic interviews should be unbiased, that they should not be suggestive or leading—and then Scott went through his entire investigation and pointed to all of the points where my team believed suggestions and parental influence and an overall lack of investigation could be shown.
When it came to differences that showed up between transcripts of interviews and the summaries of interviews and the number of “inaudibles” in the transcripts of Chloe’s interviews, Deal chalked it up to simple “typos” and other “clerical” errors. He talked about those errors in what sounded to me like a very nonchalant voice, as if those differences were of no real importance—as if they didn’t change the outcome or allegations at all.
Then Deal testified on that stand that if he had known that Chloe’s mother had been questioning her on the ride over to the interview, he would have been concerned about what she said and would have perhaps asked some questions differently in order to discern any witness tainting.
Finally, after a whole long day of cross-examination, Scott asked Detective Deal to take a look back at page 5 of his original May 29, 2008, interview with Chloe McDonald. Scott asked him whether he remembered hearing what was written as “inaudible” in that one particular “inaudible” moment that I’d discovered two nights earlier. Detective Deal said he didn’t remember it, “No.”
Everyone turned to page 5 of that interview transcript as Scott asked the court to replay that portion of the tape. Detective Deal had to step off of the witness stand in order to see the video, because there was a technical error of some sort with the big screen. It took a few minutes to get the DVD playing. So there was a big long pause in the courtroom before it happened. My stomach got all tied in knots as we waited for it.
Scott turned the volume way up, so everyone in the courtroom could hear the voice of that little girl. It struck me just how tiny Chloe sounded.
The video finally started back on page 4 of the transcript somewhere, so it took a few minutes more to get up to the moment. And then it happened.
“This is the part I want you to pay attention to,” Scott said.
“Do you remember anything about that?” Detective Deal had asked Chloe on the tape.
Chloe had responded in that little voice of hers, after looking at the camera for a moment and appearing as if she were thinking real hard: “Uh, uh, and my mom told me which is which and where they touched me.”
“Okay stop,” Scott said. “Did she just say, ‘I think my mom told me which is where they touched me’?”
Deal answered, “I heard her say something about ‘mom.’ I’m still having a hard time.”
Scott followed up: “If she had said, ‘I think my mom told me which is where they touched me,’ would you consider that a suggestion that might taint her interview?”
Deal didn’t hesitate. “From her mother, yes,” he said. “But I can’t be sure that’s what she said.”
“I understand,” Scott said. “Nothing further, Your Honor.”
Chapter 54
Sarah Henke, my ex’s new wife, got up on that stand and immediately testified concerning the allegations with my daughter. The showering did happen. She didn’t deny it. But she seemed to try to talk her way around the shaving part when Chris Arnt asked her about it. She said that she gave Ashley an old razor of hers that never had a razor blade in it. She claimed the whole idea was Ashley’s and that it was just for “pretend.”
Sarah then described how she’d taken Ashley to a doctor’s visit before the start of the past school year, saying that Ashley got upset and wouldn’t allow the pediatrician to even “peek” down her pants. She sat there describing how traumatized she thought my daughter was. Is she implying that Ashley was traumatized by me? If Ashley was traumatized by anything, she was traumatized by the physical examination she’d been put through because of these charges—the exam that Sarah had stood witness to, and which her own father allowed.
I felt like I was going to throw up.
Arnt then asked Sarah whether child services had removed any children from her and Joal’s care, to which she replied, “No.” And that was it! She wasn’t on the stand for five minutes.
By putting her on the stand for those five minutes of testimony, which in my opinion didn’t seem to do anything for their case, the prosecution opened the door to us asking Sarah Henke whatever we wanted in front of that jury. Why would they do that? I could not wrap my mind around what those prosecutors were doing.
Scott got up and jumped quickly to the question of why she’d been showering with my daughter in the first place.
“Ashley had been coming to our house,” Sarah said. “Her hair was dirty. It was matted. When she was sitting there, I could smell her. Joal and I, we both could. And Joal said, ‘Will you please teach her how to bathe?’”
My daughter was never dirty. We have tons of witnesses who were with her every day who can testify to that. Sarah hadn’t mentioned any of this during her depositions the previous year, and in fact said on the record that she had no concerns about me as a mother.62
After going through a couple of other allegations concerning Ashley’s health, Sarah admitted on that witness stand that she was “angry” about the allegations I’d made about her and Ashley. I figured everyone listening in that courtroom could make up their own minds about what this witness’s motivations might be.
She was done with her whole testimony in about half an hour, and then Joal took his oath, looking his full-on charming self in a sharp suit with a crisp white shirt and a rather peaceful-looking green tie. He started out by telling the court that we’d had a completely peaceful, “uncontested” divorce and had come to a custody agreement without any troubles. A complete and total lie after the very first question, I thought.
Chris Arnt then asked him whether I’d ever brought any kind of female-on-female pornographic materials into our marriage.
My whole body clenched so tight I thought I was going to implode.
“When we first started dating she went to her father’s house and, uh, got a pornographic VHS tape and brought it to a date that we had,” Joal said. “We were actually at her brother’s house when they were out of town, that’s where we were,” he said.
Arnt asked him again if it was female-on-female pornography. “That particular tape at that time was a female-on-female tape. Mostly just women,” Joal said.
The follow-up question was whether or not there was ever a night during our marriage when I went out with my friend Jennifer. Joal said there was. Arnt asked if there was ever a night in our marriage when I didn’t come home.
“Yes, there was. Tonya … indicated that she was going to have a girl’s night out with Jennifer”—meaning my good friend Jennifer, with the Truth Cross tattoo, who was there supporting me every day during this trial. “They went out. Tonya turned up the next afternoon. I had not heard from her, and when I did hear from her, Tonya had indicated that her and Jennifer had gone to a bar on Brainerd Road, and, uh, had drinks and that’s the last she remembered. She sa
id she woke up the next day at Jennifer’s house, in Jennifer’s bed, and said, ‘I think maybe we were drugged and something was slipped to us.’”
Arnt reiterated that I woke up “in Jennifer’s bed,” and Joal said, “Yes, in her bed.”
If I had allowed myself to react whatsoever, I think my jaw would have broken right through the table as it dropped to the floor.
My attorneys were as shocked as I was. I had told my attorneys everything I could think of about every bit of my past. I had told them about the sex I’d had outside of marriage. I wanted them to know everything “bad” I’d ever done, just so they wouldn’t ever get blindsided in the courtroom. I never expected in a million years that I’d be accused of something so outlandish as having a lesbian affair with my friend Jennifer.
Arnt seemed to move on from that line of questioning just as quickly as he’d brought it up. He asked briefly about Joal’s interaction with the McDonalds and the Lambs, whom Joal claimed not to have spoken to until May 30, 2008, and then he focused in on what Joal talked to Ashley about that same night.
“That night I sat down with Ashley in her room, and I asked Ashley, ‘Has anyone ever touched you inappropriately?’ She said, ‘What do you mean?’ And I said, ‘Has anyone ever touched your privates? Anyone,’ is the way I phrased it,” he said.
“She said, ‘Mommy did,’” Joal continued. “When she said ‘Mommy did,’ I said, ‘How did Mommy touch you?’ And she said, ‘Mommy put medicine on my bottom.’ And I said, ‘Ashley, you know the difference between putting medicine on and being touched inappropriately. She touched your bottom or your vagina? Where were you touched?’ And she said, ‘She touched my vagina.’