A federal appellate court has granted a new trial to Madison businessman Gordon ("Gordy") Sussman, convicted in 2005 of multiple counts of child molestation and possession of child pornography.
The Seventh Circuit Court of Appeals, in a decision released today, ruled that it was improper for Sussman's trial judge to prevent the jury from hearing testimony regarding his accuser's prior history of making false allegations of sexual assault. The state must now either release Sussman, who was sentenced to a total of 13 years in prison, or retry the case.
In a 74-page decision (PDF), the court recounts multiple instances in which Sussman's accuser, a boy named Scott whom Sussman had been mentoring, made inconsistent statements to investigators, as well as testimony from others that the boy was considered habitually untruthful.
But the court's main concern was the exclusion of evidence that Scott falsely accused his father of sexual abuse and had even admitted as much to his therapist. As Isthmus reported in 2005 ("Guilty: The Trial of Gordy Sussman," 7/8/05), the prosecution blocked testimony regarding these allegations essentially by springing a trap on the defense -- by arguing after the trial began that Sussman's attorney, Steve Hurley, should have brought a pretrial motion to get this testimony in.
Hurley, the decision says, interpreted this decision as shutting down his ability to introduce other evidence along these lines.
The court, in its ruling, rejected claims by the state that this excluded testimony was unimportant, saying the state's position "evinces a fundamental misunderstanding of the importance of the guarantees of the Confrontation Clause in the truthfinding process of a criminal trial." It argues this excluded evidence was uniquely relevant in that it "demonstrates that Scott lies specifically about sexual abuse when he feels abandoned by father figures."
The circuit court reversed the judgment of federal Judge Barbara Crabb, who had rejected Sussman's appeal, and remanded the case with instructions to free Sussman unless the state elects to retry him. Sussman has always maintained his innocence.