'While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt; you are to search for the truth.'
-- Standard jury instruction
It was a very small moment in a very big trial. At the end of a long day of testimony, Dane County Assistant District Attorney Jac Heitz and Madison Police Det. Bruce Frey were exiting the courtroom, pushing a cart bearing computers seized from the business and home of the defendant, Gordon Sussman. These were the machines that provided the basis for the 16 felony charges against him for possession of child pornography, and shored up the prosecution's case on the remaining four counts, two for allegedly repeatedly molesting a young boy and two for exposing him to porn.
As Heitz and Frey reached the courtroom's outer door, the wheels of the cart jammed against a metal strip along the floor. Sussman, who was talking to me in the hall, without hesitation darted over to give the pair a hand, lifting the cart so it could clear this obstacle.
Why would Gordy Sussman go out of his way, even slightly, to help his most fervent adversaries? Was this a spontaneous act of kindness, or just oddly impulsive behavior? Similar questions would arise over an incident the next morning, when Sussman, despite repeated warnings against parties having contact with jurors, said "Good morning" to one arriving to court. Heitz called it "an outrageous breach of this court's rules" and "an obvious attempt to ingratiate himself to the jury"; Sussman said it was "reflexive" and apologized.
Such minor moments invoke the case's major questions: Did Sussman involve himself in a young boy's life because he was, as the defense claimed, a generous and caring mentor; or because, as the prosecution argued, he was seeking to exploit a troubled lad's loneliness for the purpose of sexual gratification?
Late last week the jury, after nine days of trial and nine hours of deliberation, decided it was the latter. It rendered guilty verdicts on 18 of the 20 counts, curiously declining to convict Sussman for allegedly displaying pornographic material to his victim -- charges that, like the two parallel counts of repeated sexual molestation, hinged largely on the credibility of his accuser, identified in court papers by his initials, SJB.
In other words, the jury found reasonable doubt about one set of allegations made by SJB, now 16, but not on another set from during the same period and sometimes the same moments. (The boy testified that Sussman would often show pornography on his computers while the two masturbated themselves or each other.)
Did the jury get it right? Having sat through nearly every minute of these proceedings; having seen evidence presented to the jury as well as some that was not; and having had regular access to Sussman and his lead attorney, Stephen Hurley, I can honestly say: I don't know.
It was a case of almost unmanageable complexity, with matters of fact and law that were subject to constant contention. Both sides believed firmly in their (mutually exclusive) positions. Hurley and defense co-counsel Erik Guenther considered Sussman completely innocent on the child-molestation charges and technically not guilty on the porn-possession charges. And Heitz and the police obviously saw SJB as a true victim and Sussman as a threat to society who needed to be locked up for a very long time.
How long? Sussman faces a maximum sentence of 180 years on the charges for which he was convicted. The actual sentence, to be imposed in several months, will certainly be shorter than that but possibly longer than the remainder of Sussman's life.
Protestations of innocence
Sussman, 53, was charged with multiple acts of sexual contact involving SJB, whom he had volunteered to mentor at West Middleton Elementary, which Sussman's two children also attended. The assaults allegedly occurred over two periods: May 1998 to January 2002, and April 11, 2002, to May 13, 2002. During these times, the boy was between the ages of 9 and 12.
In July 2002, two months after he returned to Indiana to be with his mom, SJB came forward with his allegations of abuse. He spoke to several officers in Indiana and Madison, and gave a videotaped interview at Safe Harbor, a local facility designed for child victims and witnesses.
On July 16, police executed search warrants on Sussman's Monona workplace and Verona home, seizing a computer from each. Initially, they found evidence of child porn on just the work machine, which led to seven criminal charges. Early this year, in preparing for trial, similar images were found on Sussman's home machine, resulting in nine additional counts.
The founder and former owner of Rutabaga paddle sport shop (he sold the business in 2002, coincidental to the police raid on his office and home), Sussman was a respected businessman with no criminal past. Recently, he headed up efforts to erect a memorial in Blue Mounds state park honoring four Worl War II airmen killed in a 1944 plane crash. He has steadfastly asserted his innocence.
As Sussman put it in one of our early conversations, more than a year ago: "I don't fuck little children." He said he had gotten into a mentoring relationship to help SJB, but began to back away in early 2002, after learning that the boy had falsely accused his own father of sexual abuse. In retaliation, said Sussman, SJB turned on him.
I asked Sussman about the child-porn charges, and he replied, "I'm not into pornography." I asked how the images described in the criminal complaint -- for instance, a photo "depicting a pre-pubescent youth engaged in an anal sexual act" -- came to be on his work computer.
"I've seen pornography on there," he told me. "I can tell you where I've seen images." He said that while searching for the term "rutabaga" for reasons related to trademarks and copyrights, he happened upon a newsgroup containing hardcore porn. The implication was that this was fleeting and accidental.
Sussman went on to admit he accessed other materials of this nature while looking into attacks on United Way funding to the Boy Scouts. He felt these attacks originated from "militant pedophiles," supposedly because they're mad at the scouts for squeezing them out. It was not an explanation that made a whole lot of sense.
In many ways, Sussman comes across as essentially adolescent: impulsive, incautious, spontaneous to a fault. At one point during trial, when I asked him to talk, he suggested that, at day's end, we go canoeing. I didn't take him up on it.
Indeed, Sussman owes being in Madison to an act of impulse. A native of New Jersey, he decided at age 19 to bail on his studies at American University in Washington, D.C., and hitchhike to Boulder. He ended up hanging his thumb on Highway 151, and, when he had a hard time catching a ride taking him further west, caught one into town. He transferred to the UW-Madison, and began selling canoe paddles on the side. Rutabaga, begun as a basement business in 1974, now employs 60 people and annually sponsors Canoecopia, 'the world's largest paddle sport expo.'
Sussman, who the day before trial learned his father is dying from rapidly metastasizing cancer, appeared throughout to be jittery and disconnected, his thoughts fluttering from one place to another like butterflies. He has attention-deficit disorder, though he jokes that he does not suffer from it -- the people around him do. He compares this disorder to looking at psychedelic posters while stoned and experiencing a shift in perception, adding, in his stream-of-consciousness style of conversing, that he has little experience with drugs.
But a quirky personality is not an indicator of guilt, and Sussman's protestations of innocence have been emphatic and unequivocal. He seemed genuinely indignant that he was charged at all, casting his life into chaos and causing him to spend hundreds of thousands of dollars on his defense.
More than once, Sussman vented to me about "the incredible effort the District Attorney's Office puts into suppressing and withholding exculpatory evidence, instead of trying to find the truth." Even after the verdicts, in a call from Florida while on a court-approved visit to his dying dad, he declared: 'They know I'm innocent, and they've done this anyway.'
A jovial jury
The case of State of Wisconsin v. Gordon E. Sussman bore inevitable comparison to the prosecution of Michael Jackson on similar charges. In both, the defense attacked the alleged victim's credibility, suggesting he was being manipulated by a conniving mother eager to shake the money tree of a post-trial civil suit.
A sizable number of witnesses pegged Sussman's young accuser as a cunning and habitual liar. And it could not have been hard for the jury to believe that SJB's mother, an alcoholic who fobbed him off on a series of relatives and others while she went into a tailspin of attempted suicide, institutionalization and incarceration, had her eyes on the prize of a civil judgment, as others alleged and she denied.
If it played any role in the Sussman case, it's possible the Jackson verdict worked in the prosecution's favor, as jurors absorbed a full dose of irate reaction to yet another celebrity acquittal and fortified themselves against being duped. But there's nothing to suggest they did not do as instructed, basing their verdicts on the evidence they were allowed to see, and the arguments to which they were exposed.
The trial, like most that occur in real life and not on TV, was more frustrating that riveting. Originally slated for one week, it dragged on for two. Circuit Court Judge James Martin's 10-minute breaks usually ran closer to half an hour, and the proceedings were frequently interrupted by objections that led to protracted bench conferences over what questions could be asked and what evidence would be admitted. Whispered one courtroom spectator, referring to jury members, "They've got to be just dying up there."
And yet, whether they realized it or not, the jurors got to see two of the state's best trial attorneys at the top of their form. Prosecutor Heitz, with a bullet-like build and crop of Chia hair, may have lost points in the contest for the jury's favor by exuding an almost palpable aura of rage. He expressed open disdain for Hurley, occasional annoyance with Judge Martin, and at one point bullied to tears one of his own witnesses, an elementary school teacher, over her alleged lack of preparedness. ("How does one know what one is going to be asked?" she sobbed.)
But Heitz's bulldog demeanor was matched by his equally intimidating command of the law. He regularly bested Hurley in evidentiary disputes, even managing to shut down one of the defense's intended main prongs -- that SJB had made prior false accusations of sexual assault and would threaten others with false allegations to get his way -- by arguing after the trial began that Hurley should have brought a pretrial motion to get this in. (Heitz, after waiting to spring this objection, accused his rival of making "a willful and tactical decision to ambush the state at trial.")
Hurley, stately and cooler of temperament, seemed to do better at working the jury. He certainly made fewer demands on their time, wrapping up his case in a day and a half after Heitz put on five and a half days of testimony, followed by another half day of rebuttal. In all, the state called 23 witnesses to the defense's 13, though both sides spent roughly equal time asking them questions. Due in part to rulings to exclude evidence, Hurley never called several potentially key defense witnesses -- including SJB's father, who has said his son once threatened to report him for sexual abuse when he refused to let the boy ride his bike in the street.
And, of course, Sussman himself never testified. The day after telling Judge Martin he was "knowingly and voluntarily" relinquishing this right, Sussman told me he disagreed with his attorneys and considered this a mistake. But, Sussman added, in reference to Hurley, "he's the expert." He then veered off into an analogy about which is the best kayak for certain customers, presumably to show the limits of lay versus expert knowledge.
The jury, which ultimately consisted of 10 women and two men, was drawn from a pool of 50 in a daylong selection process designed to prune out anyone whose background or personality suggested potential bias. A former law enforcement officer who had investigated child-porn cases and was now a law student...gone. A muscular man with a buzz cut who looked as though he might leave testosterone stains on any surface he touched...gone.
Several jurors were dismissed for having prior knowledge of the case from media attention or because of personal experience with sexual assault. One man got the boot after saying he felt just seeing child porn -- as opposed to possessing it -- should be a crime. But notably, while potential jurors were asked repeatedly -- by Heitz, by Hurley and by Judge Martin -- if having to view explicit pornography involving children would be too upsetting, not a single one answered in the affirmative.
As is typical, the lawyers took this opportunity to prep jurors, with Heitz asking, "Do you believe that a child who comes from a troubled family is unworthy of belief?" and Hurley countering, "Is there anyone who believes a child who makes an allegation of sexual assault couldn't possibly be lying?"
Throughout the trial, the jury remained remarkably jovial. They chatted pleasantly with each other during bench conferences and returned from breaks -- during which loud peals of laughter emanated from the jury room -- in obvious good cheer. This was true even for the break after the first showing of the hardcore child porn, with the bailiff trumpeting the jury's return with the words, "Judge, they're having way too much fun back there."
Changing his story
The most serious charges against Sussman were based on SJB's allegations. Prosecutor Heitz, in his opening statement, said SJB's absent father and troubled mother left him so starved for attention he was "willing to endure humiliating sexual abuse" in exchange for Sussman's role in his life, which by all accounts included bike rides and paddling excursions, help with his school work, day trips and occasional gifts.
But before bringing SJB to the stand, the prosecution called Anna Salter, a nationally recognized expert on pedophiles and their victims who had never met with either Sussman or SJB. She talked about how child molesters often engage in "grooming" behavior to win the trust of victims and their families, but admitted this could not automatically be distinguished from the actions of someone who just cares about a child. She also said it was not unusual for child victims to "test the waters" by revealing only part of the abuse, and for their stories to contain inconsistencies.
This was damaging testimony, made more so by Hurley's aggressive and largely unsuccessful efforts to get Salter to yield to his view that inconsistencies were a sign of untruthfulness, for children as well as adults.
In fact, Sussman's accuser was nothing if not inconsistent.
Initially, SJB told police there were just four or five instances of sexual contact, later that there were 50, then "at least 100," then back to about 50. He said at first there were no instances of anal intercourse, later that there was one. That's not surprising, if a traumatized victim is indeed testing the waters. But SJB also initially reported that he and Sussman occasionally engaged in oral sex, later that he never gave in to Sussman's overtures in this regard. Do victims test the waters with things that are false?
SJB's claim that he never personally visited pornographic Web sites was contradicted by testimony that he was caught doing so at Rutabaga. But the jury never heard about SJB's personal computer, obtained in 2004 from his Indiana residence, which according to court filings contained images of child porn, adult porn and bestiality. The defense had hired an agent to acquire this machine through the use of deceit, prompting Dane County District Attorney Brian Blanchard (who sat in on some of the trial) to file a complaint against Hurley, still pending, with the state Office of Lawyer Regulation.
An even more glaring inconsistency concerned whether or not Sussman, whose penis SJB allegedly saw and touched on dozens of occasions, was circumcised. SJB, who knew the difference and had once met with a physician regarding his own uncircumcised state, told Det. Frey and the Safe Harbor interviewer that Sussman was not circumcised, saying this again at a preliminary hearing in September 2003. But SJB changed his story during a meeting with Frey and Heitz on Feb. 18 of this year, saying Sussman was circumcised and any prior representations to the contrary were incorrect. This is also what he said at trial.
Hurley suggested that the detective and prosecutor prompted this change, perhaps inadvertently. SJB, he said, was smart enough to surmise, when asked if he was sure about something he had repeatedly stated, that he had gotten this wrong. The jury never knew that just days before this Feb. 18 meeting, Det. Frey had obtained medical records from Sussman's personal physician confirming that Sussman was circumcised and had had a vasectomy. And it was at this meeting that SJB volunteered, for the first time, that Sussman had told him about his vasectomy, a point Heitz hammered home during his closing: "How did [SJB] know this unless Gordy told him?" One wonders.
SJB, on the stand for several hours, calmly recounted how Sussman had come into his life as a school-appointed mentor but was soon showing him computer porn -- of young boys, young girls, adults with children and "people doing sexual things to horses" -- and telling him "about the body parts and what comes out of them." This allegedly led to sexual contact at Sussman's home and office, in parks and in the water during paddling outings, in cars and at a hotel on an overnight trip. All of which SJB endured because "I was embarrassed and I thought it was right." Once, he said, Sussman demonstrated how to masturbate a horse.
Hurley, in his cross-examination, got SJB to admit he had accused his father of inappropriate sexual conduct and threatened to report an uncle for physical abuse, although SJB maintained that these things occurred. SJB also confirmed that he had never reported Sussman was abusing him to a counselor he visited 65 times during this period, once denying it outright. Finally, Hurley corneredb SJB into conceding that the version of events to which he was testifying at trial, and claiming to be true, was different from accounts given to various police officers and at the preliminary hearing, adding acidly, "And we have your word for that?"
Questions of character
But what about Gordy Sussman? What kind of man takes a huge interest in developing relationships with young boys? (There was, throughout the trial, repeated reference to another youth Sussman was mentoring during this time, with each side insinuating that the other's failure to produce him bolstered its case. In fact, this young man may have proven toxic to both: He apparently did not confirm any abuse, but is now incarcerated on felony charges for allegedly touching a 4-year-old girl.)
A parade of educators described Sussman's keen interest in SJB's studies, but this testimony was mostly a wash. For every witness who said Sussman was butting in where he didn't belong, there was testimony suggesting he had SJB's best interests at heart. One teacher had reportedly termed Sussman "the best thing that ever happened" to SJB.
Karen Anderson, Sussman's wife of more than two decades, was subpoenaed by the prosecution regarding her efforts to suspend these mentoring relationships, in calls to the mothers of SJB and this other boy. Anderson, a veterinarian, testified that she merely wanted Sussman to spend more time with her. But she was an uncomfortable witness, and seemed as though she had something to hide. This impression was compounded when SJB's mother took the stand to say that, during this call, Anderson was crying and "very upset." (She added that Sussman called afterwards, saying his wife was "not his boss.") And a county social worker conveyed that Anderson had described these contacts as "a red flag to say, 'Look at this situation.'" The import of this cryptic remark was never clarified.
There was testimony from two Rutabaga employees that Sussman's office door was almost always open, and that parts of his office were visible from heavily used common areas. But another (former) employee, who admitted disliking Sussman, said the door was usually closed: "I used to tell my wife, I don't know what Gordy does in there." Further speculation along these lines may have been fueled by Crime Lab findings of semen stains of uncertain paternity on the mouse pad of Sussman's work machine.
But no witness reported seeing any inappropriate conduct between SJB and Sussman, despite SJB's testimony that Sussman molested him indoors and out with regularity. There was testimony that SJB enjoyed and looked forward to these visits. And jurors got to see a certificate SJB had presented Sussman, thanking him "for all that you have done for me and my mom."
Several witnesses, including a counselor in Indiana who has seen SJB in recent years, averred that he seemed honest and true. Others had a decidedly different view.
Kim Varian, SJB's cousin, who took him in for several months during which he was being bounced around because his mother "basically needed a break," testified that he was manipulative and dishonest. SJB's uncle, who took him in and turned him away in less than a week, called him "a schemer." Barbara O'Connor, a former corrections officer who lived with SJB and his mom for four months last year, said "he lied for no reason at all." Edward Fox, a corrections officer and former cop who once lived next to SJB and saw him nearly every day, offered a similar opinion: "He wasn't very truthful. A lot of things he'd say just didn't make sense."
Diane Boles, a teacher at West Middleton Elementary, called SJB "manipulative and precocious" and said things she knew caused her to be "fearful" about the mentoring relationship -- for Sussman. Patrick Kinney, the school's former principal, could 'clearly recall situations where I felt [SJB] struggled between fact and fiction." And Darren Bush, Rutabaga's current co-owner, who knew SJB from his occasional visits, had this to say: "He doesn't know what truth is."
Even Judge Martin, in comments made outside of the jury's presence, called SJB's claim that he allowed the abuse to continue because he thought it was right "pretty incredible."
And then there was Suzette Cyr, the deus ex machina of Sussman's defense. Cyr, a former lover of SJB's mother and the boy's self-selected godmother, wrote a scathing letter to the mother shortly before trial, accusing her of stealing and rampant dishonesty. In it, she threatened to reveal, unless a debt was repaid, what SJB had supposedly confided to her last summer, when he was staying at her Dallas home. The mom turned the letter over to authorities, and it was given to the defense, which after great effort subpoenaed Cyr to appear at trial.
"It never happened!" Cyr testified that SJB had blurted out. "This thing with Gordy, he never did it." SJB allegedly added that his mother put him up to it.
The prosecution would later produce two rebuttal witnesses, including Cyr's stepsister, to impugn her character and attack her credibility. SJB, in his own testimony, denied making these statements. And Cyr herself said she did not report what SJB had told her in part because she wasn't sure if it was true.
Not a penchant?
The prosecution's star witness -- in all, she was on the stand about 10 hours -- was Madison Det. Cindy Murphy, who specializes in investigating computer crimes. Murphy said her analysis of the hard drives of Sussman's work and home computer turned up more than 1,000 images of child porn. Most were recovered as temporary Internet files from unallocated space, meaning they had been deleted, but a few were still readily accessible.
During Murphy's testimony, several dozen of these images -- including the 16 that led to criminal charges -- were projected on a screen visible to the jury but not courtroom observers. Jury members viewed them with dazed looks on their faces. Det. Murphy painstakingly documented that Sussman had accessed such images "repeatedly and over a long period of time," through recurring visits to newsgroups with names like "asparagus" (a term for little boys' penises), "teen male" and "teen fuck."
Murphy also described how Sussman's computers were used to download hundreds of (legal) seduction stories containing graphic descriptions of sex between boys and boys, and boys and men. And to conduct Google searches for terms like "hairless boner," "grab boy's boner" and "boy's dry orgasm." A chart prepared by Murphy tracked this Internet activity on numerous days on both computers, at all hours of the day and night. She said the user tried to conceal his activities, by deleting and hiding information.
Hurley, in his cross-examination, got Murphy to admit there was no evidence Sussman ever saved, manipulated, organized or disseminated this material -- or, for that matter, that he even looked at it. All she could say for sure was that he had clicked on certain newsgroup files and Web pages to open them.
According to Murphy, modern-day child-porn aficionados tend to simply view online material, to minimize the risk of getting caught. The defense's computer expert, Will Docken, formerly a U.S. Customs agent who specialized in investigating child porn, disagreed, saying most users store and sort it: "It's almost like they're compelled to."
Docken testified that none of the child-porn images on the Sussman computers were intentionally saved, and that the user likely never knew these images were ending up in unallocated space. And he said one set of seven photos that led to criminal charges (for each, unknown to the jury, Sussman faces up to five years in prison) took just one click and 'a little over a second' to download.
But Docken also affirmed that the person accessing this material on the home and work computer was Gordy Sussman. Heitz, in his cross-examination, ran with this, getting Docken to make a series of damaging admissions. Yes, Sussman had visited child-porn sites, on both his home and work computers. Yes, he intentionally sought out this material. Yes, he made Google searches for "grab boy's boner" and the rest. Yes, most of the porn found on these machines involved children.
Hurley, in his opening remarks, claimed Sussman had "a curiosity, not a penchant" when it came to kiddie porn. But the evidence seemed to show it was actually a penchant, if not an obsession. Indeed, child porn had apparently been accessed on both computers within hours of their seizure by police in July 2002, after SJB came forward with his allegations.
On two occasions during the trial, I confronted Sussman, saying I thought he had been dishonest with me in claiming only nominal contact with child porn. Sussman basically stuck to his story, denying any intention to mislead.
"I've seen child porn fairly minimally," he told me, again explaining that he initially stumbled on these sites by accident and did some additional searches out of concern over "activist pedophiles" who had it in for the Boy Scouts. "I never accessed a lot of files. I have been there on a handful of occasions."
As for the seduction stories involving boys, he admitted downloading maybe 50, "not hundreds or thousands" as was stated in court. He called such visits "a fraction of a percentage of things" he looked at online: "I've seen this stuff, but it's not like I go there on a regular basis." He added, explaining what drew him to this material, "It's like coming up on a horrible auto accident. You just want to stare at the gore."
Beyond a doubt, it was the child-porn evidence that sealed Sussman's fate. Whatever concerns jurors may have had about SJB's credibility must have run smack dab against the thought: What were the chances he had falsely accused a man who just happened to download stories and pictures of boys having sex?
Both Heitz and Hurley gave masterful closing arguments. Heitz waved away the various discrepancies in SJB's statements, saying, "the one consistent thing" was that "he maintains it happened." He called the evidence that Sussman possessed child porn "overwhelming," stressing that each of the boys in the photos the jury had seen had been sexually abused because there is "a market for this kind of material."
Hurley, in his closing, said the many inconsistencies in SJB's statements and numerous witnesses who considered him untruthful made it impossible for the jury to find guilt beyond a reasonable doubt. He noted that child molesters commonly have huge numbers of victims. Yet Sussman's only accuser was SJB: "Where are the others?"
With regard to the images of child porn, Hurley turned to his client and admonished, "Shame on you, Gordy." But he continued to insist that Sussman's accessing this material did not meet the legal definition of possession, since there was no proof he knew these images were being stored in his machines.
A jury instruction crafted by Judge Martin after much heated debate defined possession as control, and control as knowingly seeking out images knowing they would be saved, if only temporarily. Did Sussman realize these images were ending up on his hard drive, or didn't he? One suspects this question was not foremost on jurors' minds.
As the verdicts were rendered last week Friday, at about 1 a.m., Sussman showed no emotion. Neither did SJB and his mother, who were present in court. Five sheriff's deputies were on hand as Sussman was placed in handcuffs and led off to spend his first night behind bars.
At a bail hearing the following afternoon, Sussman appeared in court in handcuffs and jail garb. He appeared shell-shocked, staring straight ahead.
Hurley, who plans an appeal, mostly over what evidence was and was not allowed, asked the court to let his client remain free on bail until sentencing. He noted Sussman's strong roots in the community, close ties to his two children, and volunteer work on a project to restore a cemetery in Rock County. He also urged that Sussman be permitted to make a prearranged trip "to say goodbye" to his dying father in Florida.
Heitz opposed this, noting that Sussman was now a convicted felon facing up to 180 years in prison, which he called "a significant motive" for him to attempt to flee. He cited Sussman's greeting of a juror with the words "Good morning" as evidence of his propensity for defying the orders of the court.
Judge Martin denied the request for bail, but agreed to release Sussman from jail for a shortened trip to see his father. Sussman was allowed a two-and-a-half-day visit early this week, perhaps the last moments of freedom he will ever know, after which he returned to jail. During this time, the judge imposed a number of strict conditions, including that he have no contact with children and no use of computers. Just to be sure, he ordered that the computers in the Sussman residence be disconnected.