THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, March 9, 1996 TAG: 9603090402
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY ELIZABETH SIMPSON, STAFF WRITER
LENGTH: Medium: 85 lines
Mary ``Kathy'' Smigielski was acquitted Friday of abducting her daughter by a jury that deliberated for more than six hours.
Smigielski thanked the jury and broke into tears before giving a round of hugs to her attorneys, her family and a large group of friends that filled half the courtroom.
``I feel so thankful I can't even describe it,'' Smigielski said. ``I can't tell you how much I appreciate my lawyers and all these people who came here to support me. It's been the nicest thing anyone has ever done for me.''
The acquittal ended an emotional three-day trial during which the nine-woman, three-man jury had to decide whether Smigielski had made a false allegation of sexual abuse against her ex-husband to regain custody of her daughter, or whether she honestly believed her child, now 6, had been molested by the girl's father, John Smigielski.
The girl's name is not being used in this story because The Virginian-Pilot does not name children involved in sexual abuse cases.
Circuit Court Judge Robert Cromwell told jurors Friday that they could find Kathy Smigielski not guilty of parental abduction if they believed she had a ``reasonable belief'' her child would be harmed if she stayed with John Smigielski, and if Kathy Smigielski lacked the legal means to protect her. Smigielski faced a maximum of five years in jail for taking her daughter to Palm Springs, Calif., for 18 months beginning in February 1994 in violation of a custody order.
In closing arguments Friday, assistant commonwealth's attorney Paula Bruns said that Kathy Smigielski's reason for leaving had more to do with losing custody than fearing sexual abuse.
``This happened because she was desperate to have custody of her daughter,'' Bruns said. ``It was not a reasonable belief, it was a false complaint filed against (the girl's) father.''
But Kathy Smigielski's attorney, Thomas Shuttleworth, said the 1993 events leading up to Kathy Smigielski's flight from Virginia would have led any parent to flee.
He said she reacted reasonably when calling therapist Susan Avery after noticing changes in her daughter's behavior in 1993, such as bed-wetting, whimpering at night, and screaming whenever she went to visit her father.
He said she also acted reasonably when taking her daughter to Norfolk Child Protective Services in October 1993 after her daughter said her father put his fingers in her vagina.
Norfolk CPS issued a ``reason to suspect'' ruling in the case, which meant there was no clear and convincing evidence of abuse, but that there was reason to suspect John Smigielski of the abuse. The ruling was later overturned.
Norfolk police investigated the case, but the girl said nothing about being abused, so the investigation was dropped.
During the investigation, the father received supervised visits with his daughter, but when the investigation was over, Circuit Court Judge Ann Bonwill Shockley gave primary custody to the father, saying he was a more stable parent.
Kathy Smigielski considered appealing that decision, Shuttleworth said, but knew it would take six months to two years to do so, and would cost $6,000 for court transcripts, which she didn't have.
``John Smigielski is not on trial here today,'' Shuttleworth said. ``You may think he's a child molester, you may not. That's not the issue. The issue is: Was it reasonable for Kathy Smigielski, at the time she left, to think he was molesting her child?''
Jurors questioned after the trial refused to comment on their deliberations. John Smigielski also refused comment after the trial.
Missing from the courtroom was the little girl at the center of the case. At one point, she was called to testify on closed-circuit TV, but attorneys agreed at the last minute to have her testimony read to the jurors instead.
John Smigielski said he has tried his best to shield his daughter from the trial. ``We didn't talk about the case in front of her. She didn't watch the news or look at the newspaper. We've done everything we can to protect her,'' he said.
Now that she's been acquitted, Kathy Smigielski said, she will again try to get custody of her daughter, whom she has not seen since she was arrested last August in Palm Springs.
``We're going full steam ahead on that,'' she said. ILLUSTRATION: Smigielski
KEYWORDS: PARENTAL ABDUCTION ACQUITTAL JURY TRIAL by CNB