Circuit Judge Terence Perkins this afternoon denied a motion by James Harris’s attorney to release Harris from jail, on bond, pending trial on three charges of molestation involving his stepdaughter.
Harris is the 61-year-old owner of Jimmy’s Hang 10, the Flagler Beach restaurant, who was arrested on July 2 on two counts of molestation–one of them a first-degree felony, as it applies to molestation of a victim under 12, the other a second-degree felony, applying to a victim over 12. The victim, now 14, is the same. The charges reflect allegations that the molestation had been ongoing for what the girl says is five years.
What precipitated Harris’s arrest was the girl’s decision to use her smart phone to capture video of Harris behaving in a way he’d behaved innumerable times, according to the girl’s account to authorities: his entering her bedroom naked and masturbating over her bed as she slept, or feigned sleep. He would do so early in the morning. He would also take pictures of her. She had told friends of the assaults. Her friends encouraged her to use her phone to capture him, so she did. The video was turned over to Flagler County Sheriff’s detectives–the investigation was conducted by detectives Jordan St. John and Gabe Fuentes–leading to the filing of the charges by the State Attorney. On July 19, the state filed an additional charge of molestation, also a second-degree felony.
Both Tim Pribisco, Harris’s attorney, and Assistant State Attorney Melissa Clark made strong arguments for and against granting the bond motion. Perkins concluded that he had little choice but to deny the motion.
“What I have is I have the unrebutted testimony of the victim” of repeated “molestation and exhibition over a long period of time,” Perkins said. “There’s also testimony that it wasn’t just what we saw on the video, but that there was inappropriate touching at night under the same circumstances, as was shown in the video.” (The video turned in to investigators does not actually show touching of the victim.) “In that regard I think the video is particularly relevant to the exhibition, but it is also corroborative of the victim’s statement with regard to the molestation: This is how it happened. This is when it happened. And just as we said, Here it is actually happening to that extent. But I think it is corroborative.”
Pribisco agreed that there was “an overwhelming amount of proof” on the second-degree felony count drawn from the video itself, as opposed to the testimony of the child, of molestation relating to when she was younger than 12. But he countered the argument that there was proof of actual touching or violation. “There’s no biological evidence, there’s no confession, there’s no forensic, there’s nothing other than testimony, and as the court is well aware, when we’re dealing with testimony, it’s a frail body of evidence.”
Pribisco then, as defense lawyers in such cases almost invariably do, went down the road of questioning the girl’s credibility, using qualifiers and prevaricators such as “perhaps” and “skeptical” and other rhetorical formulations to soft-pedal what amounts to an indictment of the girl’s claims, to the point of hinting that she was willingly placing herself in alleged harm’s way. Pribisco’s subtle but merciless argument is a preview of what the girl may be in for at trial, from the defense’s end, should it get that far (and why Clark in particular is loath to put child victims of sexual abuse through such trials).
“There’s been evidence presented that even her own parents, for whatever reason, perhaps justified or not, are skeptical of the things that this young woman says,” Pribisco said, “she has issues with self-harm. And in fact she’s going back and forth into an environment for sexual abuse. And I certainly respect the fact that there could be a counter argument to that, but I think that the court does have the the duty to review this with heightened scrutiny, and it just doesn’t pass muster here considering a lack of the evidence that I’ve just suggested, and the fact that it’s a delayed report, she’s going back and forth in between an environment with sexual abuse. So I would suggest to the court that there is not ‘proof evident, presumption great’ as to count one, and there’s been no demonstration of this being the least restrictive means. And I’d ask the bond be set on all of the counts.”
“Proof evident, presumption great” is the very high-bar burden of proof that the prosecution must clear–that it’s not just beyond reasonable doubt, but that there is simply no possible question that the defendant has committed the crimes alleged–in order to successfully argue against granting bond. That’s what the prosecution was arguing. Pribisco said that may be the case with one of the counts, because Harris is captured on video. But he argued the court could not rely on the girl’s testimony to establish, beyond all doubts–not just reasonable doubt–that the molestation included touching.
Isn’t the video corroborative of both counts? the judge asked him.
“I think it’s corroborative but I don’t think that it demonstrates ‘proof evident presumption great,'” Pribisco said. “I’ll distinguish it as this: if he’s a molester that the state demonstrates and it’s so pervasive that she’s going to catch him in the act, she didn’t catch him touching. She didn’t catch him doing, she didn’t catch him touching. I’m not justifying what happened in this particular proceeding. But there’s no evidence of molestation captured on the video. He could have. The detective testified there wasn’t anything preventing him from doing so. And there’s no evidence of molestation on the phone or any child pornography on the phone or anything of that nature. In fact there’s only these photographs found on the phone, of this one particular instance. so I think there’s a distinction between corroboration and sufficient corroboration enough to get ‘proof evident presumption great.”
But Clark gave no quarter, either. When the judge asked her if she agreed with Pribisco that ‘proof evident presumption great’ applied in the case, she said it did, to the extent that she recalled her understanding of the standard. “But I think even under that standard,” Clark argued, “I think we’ve met it. I mean we’ve got a young lady that literally said he’s coming in my bedroom at a particular window when mom goes to work and engaging in these activities, so she records it. I mean what are the chances? It’s like lightning striking that he just so happens to come into the room, the one time she’s going to record it, unless he’s been doing this on a regular basis, consistent with what she told us. Which I think is what the court can take into consideration when considering her other statements as to what he’s been doing.
“And while, yes, Mr. Pribisco wants to point out that she may have had some troubles in her life and self harm,” Clark continued, “as the court is probably aware, self harm is pretty common amongst young people that have been sexually molested. And you’ve got a young lady that was hesitant to tell her mother because she believed her mother wouldn’t believe her, wouldn’t take her side. I mean these are all very explainable things, judge. But what’s not explainable is the video, other than the fact that he was doing this on a regular basis, which is how she knew when to set the phone up to catch him doing it because this is what he did on a daily basis. So I think we’ve got sufficient evidence to corroborate what this young lady is saying he’s been doing to her for many years.” That’s why she was arguing for no bond.
Perkins’s judgent refuted the heart of Pribisco’s argument–that the state had not met its burden of proof to deny bond. But, Pekins said, even if he refuted that argument, it was still in the court’s purview to set bond if it chose to do so, “under special circumstances.” It’s within the court’s discretion.
“That being said,” Perkins said, “I looked at the factors specific to this case. The facts of this particular case, which is that it happened allegedly but surreptitiously in the middle of the night, or the victim was sleeping, a victim of under 12 in one aspect and just over 12 in another, and based on the relationship, and based on how it occurred and when it occurred, and the circumstances here: I don’t know how I would fashion a reasonable restriction that would protect either the victim in this case, the victim’s family, or anybody else from similar conduct of this type. And if somebody is doing this in the cover of darkness at night, under these circumstances, I don’t know how you stop that.”
Perkins denied the motion.
James’s next pre-trial is scheduled for September 15.