THE VIRGINIAN-PILOT 
              Copyright (c) 1995, Landmark Communications, Inc.

DATE: Thursday, May 4, 1995                  TAG: 9505040377
SECTION: LOCAL                    PAGE: B1   EDITION: NORTH CAROLINA 
SOURCE: BY ESTES THOMPSON, ASSOCIATED PRESS 
DATELINE: EDENTON                            LENGTH: Medium:   59 lines

IN RETRIALS, WOULD WITNESSES BE RELIABLE? DAY-CARE CHILDREN'S MEMORIES COULD FAIL - OR COULD BE INTACT

As the courts decide whether to grant new trials to two people convicted of sexually abusing children at a day-care center here, others wonder whether the children can testify accurately years later.

``It's not clear what will happen,'' Mark Everson, director of the Program on Childhood Trauma and Maltreatment at the University of North Carolina medical school, said Wednesday.

Robert F. Kelly Jr., 47, and Kathryn Dawn Wilson, 29, were given a second chance Tuesday when the state Court of Appeals ordered new trials for each. They were convicted of sexually abusing children at Little Rascals Day Care Center and sentenced to life in prison.

The primary witnesses at their original trials were children who attended the center and accused them. The children, who were as young as 2 when the case began, would be six or seven years older at a retrial.

``I think it's hopelessly and irrevocably lost, what happened in Edenton,'' said Mark Montgomery, Kelly's appeals lawyer, who has a doctoral degree in emotional disorders of children. ``I don't think those kids are capable of testifying to what happened. They are less reliable as witnesses then they were in the first trial.''

Nancy Lamb, an assistant district attorney in Elizabeth City who was a prosecutor in the case, said a retrial would give the state new options. Prosecutors could select new witnesses, or use the original ones.

Before a new trial would begin, the state Supreme Court must decide whether to hear the state's appeal of the Court of Appeals decision. The highest state court could overrule the appeals court and let the convictions stand.

``Research indicates children may forget more peripheral details when they experience a traumatic event, but they don't forget the traumatic event,'' Lamb said.

Several parents said they believed their children could handle testifying again.

``He would be emotionally able to do it,'' said Chris Bean, Kelly's former attorney and father of one of the children. ``But you've got to remember this was six years ago and I don't know what the kids would be able to remember.''

Parent Gary Smith, two of whose children testified at Kelly's trial, said he had not thought a lot about a new trial.

``They are two different kids today than they were then,'' he said.

Everson, who testified as a prosecution rebuttal witness in Kelly's trial, said he recalled another day-care sexual abuse case in which a 2-year-old child suffered damage that was verified by a doctor.

``She was interviewed about it four years later and could remember almost nothing,'' he said. ``There are other cases where kids remember more and it's vividly etched on their memories.''

KEYWORDS: CHILD MOLESTER CHILD ABUSE SEX CRIME TRIAL

APPEAL by CNB