Tuesday, March 26, 2013

San Diego USD v. Commission on Professional Competence (Cal. Ct. App. - March 26, 2013)

This is a hard case.  Really, really hard.

Thad Jesperson teaches second- and third-grade students.  Opinions apparently vary widely as to whether he's a really good or really bad teacher.

Though that's all beside the point -- or at least ancillary to it -- once he's accused of inappropriately touching his students.  He says he only touches them in "good" ways.  And I'm convinced that there are indeed "good" ways to touch a student, and definitely bad -- incredibly bad -- ways as well.

Once I read about Jesperson's criminal trials, I lost all sympathy for the guy.  At his first trial the jury convicts him of lewd conduct with Emily A. but deadlocks on the other charges.  At his second trial the jury acquits him of charges against three other girls, but convicts him on one count involving Jaicee S.  At his third trial he gets convicted on all counts involving three different girls.  So he's sentenced to seven concurrent 15-to-life sentences.

Seems pretty straightforward, eh?  The dude's scum.

This conclusion is only weakened slightly by knowing that the trial judge in his second trial granted him a new trial on the one count for which he was convicted.  But it's weakened much more by the fact that in 2007, all of his convictions get reversed on appeal.  For jury bias was well as ineffective assistance of counsel.

But he was still originally convicted, right?  So the dude's "probably" guilty?

Then the San Diego District Attorney decides not to even attempt to retry Jesperson.

What to make of that?  If he was really guilty, wouldn't they have given it another shot?  This is a guy, after all, who we wanted to put in jail forever.  It's not like there's political reluctance to retry alleged child molesters.  What conclusions, if any, should we/I draw from the failure to retry?  Is there a reason to put aside my initial thoughts into this guy's character?

At least as involves the criminal charges, however, it's over.  He's a free man.

But does he get to teach again?

Because, you see, if he didn't in fact inappropriately touch his students, then he's entitled to retain his job with the San Diego Unified School District.  But San Diego wants to fire him.  So they initiate disciplinary proceedings.  Which is entirely proper, since the standard of proof at these things are different than the beyond-a-reasonable-doubt standard in a criminal trial.

What happens next?

You should read the opinion in its entirety for the various testimony presented at the administrative hearing.  This is not a classic "she-said-he-molested-me-and-he-denied-it" kind of trial.  The stuff is generally more subtle.  There's a teacher's aide there every day (Connie Murphy) whose testimony is strongly on the teacher's side.  In the end, the Commission unanimously decides in Jesperson's favor, and reinstates him.

At which point San Diego files a writ petition, which the trial court grants.  Finding that Jesperson did, in fact, inappropriately touch Emily S., and stating that the Commission's determination to the contrary (it found Jesperson more credible than Emily) flew in the face of the trial court's "three years of experience as a judge sitting in juvenile court" and evaluating the testimony of child witnesses.

At which point Jesperson appeals.

Now I'm torn.  Seriously, seriously torn.

One the one hand, there are criminal charges.  Most people think that where there's smoke, there's fire.  Especially when you're willing to burn a guy for 15 to life.  On the other hand, these charges were eventually dismissed and/or overturned.  But they were still there, right?

Plus, you've got a Commission that unanimously thinks that Jesperson should remain a teacher.  That's pretty big, no?  There's no way they're letting him back in the classroom if they are even suspicious that he might have molested kids, right?  They must clearly think that what transpired is witch-hunt-like and/or an overreaction.  Because people on the Commission are, I'm confident, not merely bureaucrats, but are rather people.  And people care when kids get molested.  So surely they had every incentive to bounce Jesperson if they thought he was a scumbag, and didn't.  That's got to say something.  Especially when they do it unanimously.

All that makes sense to me.  But let me ask the hardest question:

Do I want Jesperson teaching my own kids?

Yep, he could be great.  Yep, he could be the kind of caring, compassionate teacher who really gets to know his students.  Who cares enough to bend down and tie their shoes (as he indisputably does) at recess.  Who pats them on the back -- both figuratively and literally -- when they need it.  Who's the type of teacher you really, really want your children to have.

Or he could be a monster.

It's a freakishly hard case.

Ultimately the Court of Appeal decides that the Commission rightly gets to make certain credibility calls, and so reverses the trial court.  Again, as a purely legal matter, this seems right to me.

But the harder -- so much harder -- question is whether I'm happy that Jesperson is entitled to get back teaching at San Diego Unified.  On the one hand, if he's in fact innocent, this is a victory of immense proportions.  Justice prevailing over incredible -- truly incredible -- odds.

The reality, however, is that we'll never know.  We'll never know for sure.  And even if you think you're right, there will always be at least a smidgen of doubt.  About something you couldn't care more:  the welfare of your children.

So, so hard to figure out whether to cheer, scream or shrug one's shoulders.