Recanted testimony opens a judicial Pandora's box
Witness drops accusation but judge is wary of freeing inmate
Sentenced six years ago to 55 years in prison for rape and sexual abuse, Ben Kiper's conviction rested solely on the testimony of his accuser, his 10-year-old stepdaughter.
There was no physical evidence, no medical exam and no testimony from any corroborating witnesses at his trial in 2000 in Butler Circuit Court.
So when the girl, now 16, recanted her allegations last October -- swearing under oath that her stepmother forced her to falsely accuse Kiper during a custody dispute -- you might have expected the 35-year-old inmate to go free, or at least win a new trial.
"It is simply intolerable if a state allows an innocent person to remain incarcerated on the basis of lies," one of his attorneys wrote a month later.
But five months after the recantation, Kiper remains at the Green River Correctional Complex in Central City. And he may well stay there, because courts have traditionally viewed such testimony with great suspicion. Some have said no form of evidence is more unreliable.
The thinking is that witnesses can be too easily coerced into changing their testimony. Plus, when witnesses change their story, it inherently calls their credibility into question.
As Judge Ronnie Dortch, who tried Kiper six years ago and is now being asked to decide his fate again, put it, the stepdaughter's recantation will force him to decide if she "was lying then or is lying now."
Dortch -- who presides in Butler, Edmonson, Hancock and Ohio counties in Western Kentucky -- said Kiper's case is the first in his career as a practicing attorney or judge in which the main witness has recanted.
Retired state Supreme Court Chief Justice John Palmore said he believes courts frown on recantations in part because if they were routinely accepted, cases never would be really over.
"We can't have trial after trial over the same incident," Palmore said. "The courts are not the circus. We don't put on the same show every day."
In a motion to set aside Kiper's conviction, Marguerite Thomas, director of the Kentucky Innocence Project, a unit of the state Department of Public Advocacy, concedes it may be "a natural instinct to want to disbelieve" the recantation.
"No officer of the court or citizen of this commonwealth wants to accept that wrongs of this magnitude occur in our system," wrote Thomas, who is co-counsel for Kiper with the project's coordinator, Gordon Rahn. "Unfortunately, the reality is that they do."
'Her word versus his'
The allegations against Kiper surfaced in the spring of 1999, when his stepdaughter was living in Morgantown with her father, Ronald King, and stepmother, Becky King, according to Kiper's motion to set aside his conviction.
The girl's mother, Angela Scott, was married to Kiper, and had filed a motion to regain custody of her daughter. Kiper had helped raise the girl since she was an infant; she called him "Daddy."
On the day the custody motion was heard, the Kings filed a petition in juvenile court charging that Kiper had raped the girl a couple of years earlier, when she was 7 and living with her mother.
Sheriff's Detective Kenneth Morris, who investigated the allegation, said the girl seemed credible. "The way she described everything that happened was not something a child would pull out of the air," he said in an interview.
But because so much time had elapsed since the alleged crime, no rape exam was conducted, Morris said.
"It was strictly her word versus his," he said.
At trial, the prosecution presented less than an hour's worth of proof and only two witnesses -- the girl and her stepmother.
The girl testified that Kiper put "his private parts in my private parts" and said nobody had forced her into accusing him. Becky King insisted the allegation surfaced before the custody dispute.
Later in the one-day trial, Kiper was convicted of rape and sex abuse and sentenced to 50 years on the former charge and five on the latter. He also pleaded guilty in Ohio County on drug-related charges and was sentenced to another five years in prison.
The girl, eventually diagnosed with bipolar disorder and other problems, was shuffled to a series of mental hospitals and youth centers over the next four years, including River Valley Hospital in Owensboro, where she told a counselor she hadn't been raped, according to court records.
At her last stop, at what is now called Our Lady of Peace in Louisville, she was so emphatic about her denial that on Sept. 17, 2004, she drew a picture of a heart with a caption that said, "Believe me."
She persisted in her claim until she eventually persuaded her therapy team to rescind her classification as a sex-abuse victim, counselor Cleola Miller testified at the hearing on Kiper's motion.
Miller said the girl's hygiene and attitude immediately improved, so much so that she was released in November 2004 to live with her mother in Morgantown.
Two months later, the girl approached her juvenile court judge, Renona Browning, according to court records, and said she had lied in the trial convicting Kiper. The judge told the girl to consult a lawyer.
Forgiveness and hope
Last Oct. 25, the girl officially recanted her testimony during a hearing on Kiper's motion to set aside his conviction. She blamed her stepmother for forcing her to make the accusation.
"She told me everything to say and she said if I didn't, that I would get a whuppin' and never get to see my mom again," she said.
"Did Ben ever rape you?" Rahn asked.
"No," she answered.
The prosecution presented no witnesses. Becky King wasn't subpoenaed by either side, although in a phone interview this week, she denied the girl's allegations.
In a closing statement, assistant commonwealth's attorney Mandy Perkins charged that the girl fabricated the recantation so she could be released from the hospital and rejoin her mother.
"She found a friendly ear and began to bend it," said Perkins, who also pointed out that the recantation was not new -- at Kiper's trial, the girl's mother had testified that her daughter had backed off her allegations.
"A jury obviously did not find that credible testimony," Perkins said.
Dortch promised to rule as quickly as possible, but Thomas said the judge said in court last week that he hadn't looked at the case yet.
He warned Kiper and his lawyers in October that he is wary of second-guessing juries and that Kentucky case law is very skeptical of recantations. The judge acknowledged that children are often manipulated by adults during child-custody disputes, but he said it is hard to know whether this girl was manipulated then -- or now.
Kiper's lawyers, say the girl -- "an abused, fragile and troubled child who was forced to perpetrate a fraud on this court
is now telling the truth." After years of psychological treatment, Thomas and Rahn say, she has "come to terms with her misdeed
and is attempting to right a wrong she has caused."
Her mother said the girl did not want to be interviewed.
If Dortch doesn't set Kiper's conviction aside, he will remain incarcerated until at least June 2012, when he is scheduled to have his first meeting with the state Parole Board.
Kiper, who has previous felony convictions for theft and burglary, acknowledged he has "made some choices in my life that I am not proud of." But "I am not a rapist."
He said he has forgiven his stepdaughter, and dreams of being released from prison so he can help raise the three children he had with the girl's mother, from whom he's now divorced.
He said he knows that may not happen.
"The only thing I can do is pray for the right thing to happen," he said. "I am innocent."
Reporter Andrew Wolfson can be reached at (502) 582-7189.