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May|June 2005
Double Daylight By Margot Sanger-Katz
Made in India By Daniel Brook
Sleepstalking By Aaron Dalton
Rodzilla By Suzanne Sataline
Old Yeller By Suzanne Snider
Cases & Controversies
The Prudent Jurist By William H. Simon


A child molester pleads unconsciousness.

By Aaron Dalton

IF JONATHAN HUTCHINSON'S FEATURES had fallen any further, they might have slid off his face. As he slumped in the witness chair of Judge Richard Geiger's courtroom, Hutchinson insisted that he'd been sleepwalking when he molested the daughter of his girlfriend in 2001. "I didn't wake up in a closet, I woke up in a kid's bed," the 33-year-old defendant testified in February. "It was embarrassing. I didn't know who to ask for help."

Assistant Prosecutor Linda Lawhun was unmoved. She approached Hutchinson in her crisp pinstriped suit, and pressed her advantage. Hadn't Hutchinson admitted during his testimony to lying down on the girl's bed on mornings when he couldn't easily wake her for school? Hadn't Hutchinson inserted his finger into her vagina one of the nights he said he was sleepwalking? Didn't he end up in the same bed with the same under-age girl three, four, or perhaps even more times in the space of a year? And hadn't he begged her not to say anything to her mother about those encounters?

On trial in Bridgeton, N.J., for multiple counts of sexual assault, Hutchinson did not deny entering the girl's bed on multiple occasions. Since he had been asleep, he couldn't say for sure what he had done, but he disputed some key details. He didn't remember being unclothed, and he didn't remember straying anywhere beyond the girl's "stomach area."

Still, the prosecution and defense agreed that Hutchinson's nighttime forays into the girl's bed were wrong beyond a doubt. For the jury to find him guilty, though, the prosecution had to prove that he had mens rea, a criminal state of mind. Since he was sleepwalking, "he couldn't have been acting in a knowing and purposeful manner," said Hutchinson's defense attorney, John Morris, during a trial break. "You need a voluntary act and you need mens rea. You've got neither here."

Morris, who wore a rumpled suit and bow tie, displayed a theatrical bent. He was given to walking around the courtroom before stopping abruptly to bellow questions at the witness in the stand. It was Morris who hatched the sleepwalking defense. He had read about Kenneth Parks, a Canadian who, in the middle of the night, got in his car, drove 14 miles to the Toronto home of his in-laws, stabbed and bludgeoned his wife's mother with a tire iron, and nearly choked her father to death. Parks insisted that he had been asleep the entire time, and the jury acquitted him.

In American law, the sleepwalking defense was first invoked in 1846 when Albert Tirrell used it to win an acquittal for the murder of his prostitute mistress and the arson of her Boston brothel. In 2001, Adam Kieczykowski was charged with stealing into at least 10 dorm rooms at the University of Massachusetts in Amherst and committing burglary and sexual assault. He said he was sleepwalking, and was acquitted after an hour of jury deliberation.

A few years earlier, closer to home in Pleasantville, N.J., 43-year-old Richard Overton claimed he awoke to find himself naked on top of a 7-year-old girl. His girlfriend was the girl's babysitter. Overton said he asked the child, "What are you doing in my room?" before becoming aware of his surroundings and ?eeing the child's bedroom. Though acquitted of the more serious charges, Overton was found guilty of child endangerment and abuse. He appealed and an appellate court reversed his convictions.

Juries have reason to be skeptical, but there is plenty of scientific evidence to suggest that sleepwalkers, or somnambulists, can engage in complex behavior. "Their actions usually don't make any sense. They might urinate in the laundry room or go down to the kitchen and put food in the dishwasher," said Dr. Meir Kryger, director of the Sleep Disorders Center at St. Boniface General Hospital in Winnipeg, Manitoba. "I had one patient who came to me because he would sleepwalk outside barefoot, wearing his nightclothes when it was 30 degrees below zero."

Sleepwalking is a form of parasomnia, a class of sleep disorders characterized by partial wakefulness. So, though unconscious, somnambulists are usually mindful enough not to injure themselves. While the disorder is most common in children, some 3 to 8 percent of adults sleepwalk. The common triggers for it include stress, alcohol, and sleep deprivation. In addition, according to Kryger, a child with one parent who sleepwalks has a 45-percent chance of inheriting the disorder.

Morris set out to prove to the jury that his client fit the profile of a somnambulist. The defendant's mother recalled that when her son was young, she found him putting apples in the frying pan at night and trying to wash the car at 3 a.m. Each time, she gently guided him back to his room and put him to bed. Hutchinson's sleepwalking didn't end when he became an adult, according to his ex-wife, who said that he sometimes initiated sex while he was asleep.

The success of a sleepwalking defense rides largely on the strength of the expert—and Morris brought in Dr. Gerald Cooke, a well-known forensic psychologist. Cooke emphasized that the defendant was a sleepwalker whose condition was exacerbated by his arduous schedule. Hutchinson juggled child-care duties for his girlfriend's three children with his rotating shift schedule as a machine operator at a glass manufacturing plant. He had also learned that his parents were getting divorced shortly before embarking on one of his alleged sleepwalking episodes.

To contest that profile, the prosecution asked Dr. Mark Pressman, the director of three Pennsylvania sleep centers, whether Hutchinson's nocturnal acts could have been committed by a sleepwalker. With the air of a physician unused to having his authority questioned, he emphasized that Hutchinson's account of events stretched credulity.

Pressman wondered why Hutchinson was clothed if he had testified to sleeping in the nude. Most sleepwalkers wouldn't bother to get dressed. "They are not concerned about their appearance," he said, "because they are not aware of getting up and going anywhere." Hutchinson had also testified that he woke up each time the girl had pulled his hand away from her, and he immediately realized that he was in the wrong bed. But Pressman noted that sleepwalkers are notoriously hard to awaken. He cited instances of somnambulists punching family members who were trying to rouse them. "I have seen sleepwalkers who were hit, stabbed with a knife, or have fallen downstairs and did not wake up," he said. "When they do wake up," Pressman went on, "they are invariably confused and slow to take stock of their surroundings."

Pressman came to these conclusions without examining Hutchinson, as Morris repeatedly pointed out until Judge Geiger prodded him to move on. Pressman countered that Hutchinson's account damned him—and that the doctor didn't know of any somnambulists who had repeated the same acts multiple times. Sleepwalking episodes are "unique experiences," Pressman said. They are "random acts."

Outside of court, Morris acknowledged that his client would have had trouble explaining what he wasn't asked on the witness stand: why he hadn't taken steps to protect the teenage girl after the second, if not the first, episode. Assistant District Attorney Lawhun might want to keep that question in mind. After deliberating for two days, the jury announced that it was deadlocked. The state has moved to retry the case quickly but, for the moment, Hutchinson gets to walk.

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