Recently I represented a 70 year old man who had been a teacher and a businessman for many years. He gave back to the community by volunteering as an umpire and referee for youth sports. He was not the kind of person I expected to need my help. And yet. . .
He was working as a substitute teacher for a second grade class. One of the boys in his class would not return to his seat, so he asked him to come forward. He asked the boy if he'd like to be picked up by his ears. He promised it wouldn't hurt. So he told the boy to grip his wrists as hard as he could and use his brain power and concentrate. With the small boy putting all his weight on the teacher's wrists, the teacher used the forefinger and thumb on each hand to "pinch' the boy's ears and lift him a few inches off the ground. It's a trick he has used for many years: young kids think he is lifting them by the ears when in fact he is using their weight placed on his wrists to lift them. It is perfectly harmless. It is a way to give wayward boys some attention and to keep order in the room.
While he was doing this, apparently some teacher looked through the door window and complained to the principal about this. Without further ado, the principal relieved my client of his duties and sent him home. The kids in class later 'confirmed' he lifted the boy by his ears, even though the boy told the principal his ears did not hurt. The prinicipal called the police.
The police wanted to talk to my client. Ordinarily, I am reluctant to let clients talk to the police. For one, it rarely helps. The police will be filing their report with the prosecutor no matter what the client says, even if a valid defense is raised. Secondly, much of the time clients end up making statements that, shall we say, do not amount to a valid defense. In other words, they help make the case against them. And third, the police can misconstrue, misunderstand or simply get what my clients say wrong. There is also the problem that some clients lie and make it worse. So, the soundest advice is silence. Silence cannot be misconstrued and silence cannot later be used to raise an inference of guilt on account of the Fifth Amendment. In short, silence is golden.
However, in this case, being charged would be a real problem for my client. The school district that used his substitute services immediately removed him from their list of substitutes on the ground that he would be criminally charged. And the State Superintendent of Public Instruction (SPI) started an investigation, which threatens his certification.
Luckily, the police officer investigating the case was reasonable and willing to hold off any decision to send the case for filing to the prosecutor until she heard from my client. With the possibility of no referral of charges, I talked to my client. He told me his story and his background and I believed him. He was innocent and articulate enough to be able to convince a police officer of that. I didn't think he could hurt his case, only help it.
We went to see the police officer at her precinct, and after a very cordial conversation, she told us she did not think charges would be filed. Later she told us that the prosecutor reviewed the reports and agreed not to charge. Although not an acquittal by a jury, this was an even better result since no court record of a charge would be created.
Of course now my client has to confront the SPI investigation as well as petition to be placed back on the school district's list. But at least he can claim exoneration in the criminal investigation.
The bigger question: have we, as a nation, gotten so paranoid that we call in the police at every turn? Here was an experienced teacher and a wonderfully decent man who was shabbily treated by officious, over-protective administrators. Sure, we have to protect our children and sure, there are bad people out there. But how about a little common sense? Not every touch is deviant! After all, state law holds that "the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child." (RCW 9A.16.100.)
Maybe the principal should have looked a this law and then taken a detailed story from my client as the police were willing to do. But the principal did not and called the police instead. So I conclude with apologies to Buffalo Springfield, "paranoia strikes deep, into your life it will creep, it starts when you're always afraid . ."