The Molesters’ Hero

Roberto Najera's Supreme Court win led to eight hundred convicted and suspected pedophiles going free -- and made him a much-hated man.

In his new black suit, Roberto Najera looked Supreme Court-worthy. Not only did he look the part, he felt intellectually primed for his appearance before the nation’s highest court. He’d studied federal case law going back to the 1700s, read centuries-old British legal theory, and participated in mock trials. Najera, a public defender from Martinez, was ready to do battle on behalf of his client and, by extension, 799 other convicted and accused child molesters in California — all of whom he believed should not have been charged in the first place. They’d all been prosecuted because of a 1993 state law that retroactively extended the statute of limitations for child sexual abuse.

The public defender’s client was charged with molesting his own two daughters 43 years earlier. At first, the attorney thought he’d defend the Antioch man the traditional way — by finding medical and school records and locating witnesses. But there were no records left. Many of the people who knew the family were dead or long gone. No one from the old neighborhood still lived there; in fact, even the neighborhood itself was gone. So instead of trying to fight the criminal charges, Najera challenged the very law that allowed the case to be filed.

Najera believed the US Constitution prohibited the state from retroactively changing the basic rules governing criminal prosecutions and convictions. In essence, he believed, the government had made a promise to his client, which was that when the statute of limitations on his alleged crimes expired, he was free and clear. As he saw it, the government could not just change the rules of the game at will and renege on its promises.

But Najera had a steep legal mountain to climb. The California Supreme Court had previously upheld the constitutionality of the law in another challenge that stemmed from a different child-molestation case. Still, Najera was not dissuaded. He went above their heads and earned himself an audience with the justices of the nation’s highest court.

On a snowy March morning in Washington DC, as he took a cab to the stately Supreme Court building, Najera understood that the stakes were huge. If he won, his client would simply walk away scot-free — along with at least 799 other convicted or suspected California pedophiles. A victory also would mean that other states considering similar laws would be barred from passing them. But a win would also turn Najera into public enemy number one for survivors of child sexual abuse.

The soft-spoken Najera had reached the zenith of his career, but was finding it an odd place to be. Not only was he there to represent some of the most despised people in America — many of them Catholic priests who’d been accused or convicted of sexually abusing kids in their parishes — he also was up against the state of California and the federal Solicitor General’s Office. Both agencies had challenged his case and were there to argue on behalf of the California law. But unlike Najera, whose office had minimal resources with which to challenge the law, the state of California and the federal government had vast budgets and armies of lawyers and clerks who could devote themselves to intellectually pummeling him.

It was an unfair fight. And Najera was an unlikely candidate to be caught in the middle of it. It wasn’t as if he worked in some well-heeled, pedigreed law firm, like many of those who appear before the Supreme Court. He’d spent his entire career in the trenches defending fairly low-profile clients against felony charges in Contra Costa County. Najera had forty active felony cases when he decided to petition the Supreme Court. “Most lawyers would have negotiated the Stogner case away with a plea bargain,” said Michael Friedman, a Contra Costa public defender who works with Najera. “A lot of lazy attorneys would have favored the resolution route, and that wouldn’t have involved the fifty thousand hours of work it took to take this case to the end.”

Najera’s clients were not the Scott Petersons or O.J. Simpsons of the world. They were people who couldn’t afford attorneys, and whose stories would never end up on Dateline. One client was a fifteen-year-old glue sniffer who murdered a fifteen-year-old girl. Another allegedly gunned down three people in Richmond. Then there was the man whom prosecutors said shook his infant to death.

In addition to his lowly stature in the legal world, the 45-year-old lawyer was the child of a Mexican field worker and had spent much of his childhood picking peas on the Monterey coast. His father died of cancer when Najera was six years old, leaving his widow to raise their six children on a vegetable-picker’s salary. That he graduated from law school at all was considered monumental by his family’s standards.

Nearly every step of the way, colleagues, law professors, and other criminal defense attorneys gave him an unrelenting stream of advice. Get a new suit. Don’t forget to tell the justices about this case or that case. Make sure to address the justices by name. Put this in your brief. Take that point out of your writ, or they’ll never agree to hear the case.

Some of Najera’s colleagues had even tried to wrest the case away from him, convinced that he was utterly unprepared and unable to handle the job. “His briefs were poorly written,” sniped one attorney familiar with the case. But Najera politely declined their offers to intercede and pushed on.

Najera’s wife, Cecilia, was thrilled that he’d taken the case as far as he did. But she warned him just what would happen if he won.

“She said people would think of me as someone who’s opened the gates of hell.”

When Marion Stogner’s case landed on Najera’s desk in 1998, the public defender was hurled into a raging legal debate. The California legislature had extended the statute of limitations on child sexual abuse five years earlier, and numerous court challenges were still pending. The state Supreme Court had not yet issued a definitive ruling. Najera threw the case into the hefty pile on his desk and assigned an investigator to locate witnesses and find records.

The case against Marion Stogner grew out of a separate child molestation case against his grown son, Randy. The younger Stogner faced charges of sexual child abuse in Contra Costa County for allegedly abusing a minor in his family. While that case was being investigated, Marion’s two adult daughters alleged that their and Randy’s father had molested them when they were kids.

The district attorney’s office investigated and charged the elder Stogner, then 72, with two counts of a lewd act upon a child. Prosecutors claimed he’d repeatedly raped his daughters over a span of nearly two decades in the 1950s and 1960s. Marion, a retired paper plant worker and Korean War veteran, denied the charges. (Randy, meanwhile, eventually pled guilty to two counts of child molestation and received a year in the county jail and five years of probation. He also has to register as a sex offender.)

Najera’s investigation into the elder Stogner’s past went nowhere. His investigators couldn’t find anyone or anything that could help him defend Stogner against his daughters’ accusations. So Najera did what several other California defense attorneys were doing: He challenged the law that let the district attorney prosecute his client more than three decades after the alleged crime.

When the state Legislature had retroactively erased the statute of limitations on child sexual abuse, it allowed prosecution no matter how long ago the alleged molestation occurred, as long as charges were filed no more than one year after the victim came forward and filed a police report. Proponents of the law were concerned about the inability of many child victims to come forward until long after the crimes occurred, which often allowed pedophiles to escape punishment. Former Assemblywoman Paula Boland from Los Angeles had introduced the bill after a constituent told her she’d been molested years earlier but hadn’t felt able to tell anyone until she was an adult. Boland vowed to do something for such victims.

“When I heard the story, I had no clue there were pedophiles like that walking the face of the earth,” Boland said. “Victims, 99 percent of the time, don’t want to see people prosecuted for retribution. They’re doing it because they don’t want to see other children raped. … Child victims are threatened not to come forward and are brainwashed. Many times these victims can’t even face what happened for years.”

Boland’s colleagues in the Legislature were persuaded and the law, known as 803g, was put on the books. The Boland bill became the key tool California prosecutors planned to use to go after dozens of Catholic priests who’d allegedly molested children years earlier.

But once Najera dug into the issue, he became almost messianic in his opposition to it. He was convinced the law violated both federal and state law by retroactively changing the rules of criminal prosecution. Once a statute of limitations expired, he believed, the state or federal government had no legal right to bring charges, no matter how repugnant the defendant or crime. “The state of California did something radical to what always was the understanding of the law,” Najera said.

Numerous other states had tried to do exactly the same thing, but state courts had always barred them from doing so, citing specific clauses in the Constitution. Known as the “ex post facto clauses,” these provisions prohibit federal and state government from retroactively altering the rules of how criminal prosecutions are brought, executed, and resolved. The US Supreme Court had not yet ruled as to whether changing statutes of limitation was unconstitutional.

For guidance, Najera turned all the way back to a 1798 US Supreme Court ruling, Calder v. Bull, for the still-definitive interpretation of those clauses. Justices had ruled that legislators were prevented from doing four things:

? Retroactively criminalizing conduct that was legal when it was committed.

? Aggravating the seriousness of a criminal offense to make it more serious than when it was committed.

? Making the punishment greater than it was when the act occurred.

? Altering the rules of evidence to make it easier for the government to obtain a conviction.

Najera was convinced that Boland’s law violated all four categories. And the Supreme Court only needed to find one such violation to rule that the law was unconstitutional.

Najera, a workaholic known in his office for finding unconventional, creative legal arguments in his cases, poured his energies into writing a petition to the Supreme Court on behalf of Stogner. Other lawyers in California had previously petitioned the court on the issue and tried to get the justices interested, but failed. Najera believed their mistake was in writing dense legal petitions with a dry academic feel. He took a different tack.

“One of the things I tried to do in the writ is put some emotion into it,” he said. “I argued if this could happen, statutes of limitations would be wiped out across the US.”

Najera ended his lengthy petition on behalf of California’s convicted and suspected molesters by arguing that the matter boiled down to an issue of governmental integrity. “Notions of fair play that underpin the statute of limitations also underscore a more basic societal sense of fair play and decency in not making promises only to break them retroactively years later,” he wrote.

In other words, if the government makes a promise, it must abide by its pledge. By Najera’s reasoning, the “promise” the government made to Marion Stogner was that once the statute of limitations on molestation charges expired in 1976, it could not ever again bring a case against him.

In December 2002, seven months after he filed his petition, a clerk for the US Supreme Court called Najera to tell him it had been granted. His office was in an uproar. “I cannot convey how phenomenal an event it is for a deputy public defender to even get a case to the Supreme Court,” says Michael Friedman, a Contra Costa public defender who traveled to Washington to see Najera argue the case. “It’s unheard of.”

Najera recalled the pandemonium. “Everyone wanted to hear the message,” he said. “That’s when it started dawning on me. Finally I was going to be listened to.”

But two weeks later, though, it wasn’t clear whether Najera would even be able to travel to Washington. He found himself in the hospital with a piercing stomachache that was soon diagnosed as colon cancer. Doctors removed a tumor from his colon and put him on a chemotherapy regimen.

“We weren’t sure he could argue the case,” recalled Najera’s younger sister Alicia.

One month before he was to appear before the justices, Najera was released from the hospital. He’d lost thirty pounds and now wore a colostomy bag beneath his suit.

More than a half-dozen friends, family, and colleagues showed up for the March 31 oral argument, and they were all nervous. Najera had spent a week in Washington with his law clerk, Elisa Stewart, a 34-year-old defense attorney from Boston who had recently moved to California. She’d helped Najera write and research the petition, and had been at his side working on the case for months. In Washington, the two holed up in a hotel suite preparing for the oral argument. Twice, the pair ventured out to the Supreme Court to watch other lawyers appear, so they’d know what to expect.

On the day of his oral argument before the nation’s highest court, Najera’s brother-in-law had brought along an extra suit, tie, and shoes for him, just in case there was an accident involving the colostomy bag. Najera’s wife was concerned that such a mishap would make national news. “He was very sickly when he went to Washington,” Cecilia Najera recalled. “I was worried he was going to pass out. I had no idea what was going to happen.”

At 9 a.m. on the morning of March 31, even Najera himself wondered whether he was fit to be there. It wasn’t because of his failing health. A wave of insecurity washed over him as he passed through the Supreme Court’s security checkpoint.

“When I first walked through the metal detectors and got a whiff of that courtroom smell, I was like, ‘What am I doing here?'” he recalled.

Once inside the court, a court clerk gave Najera and Stewart a lesson in Supreme Court etiquette. Najera was told not to introduce himself to the justices. He needed to begin his remarks by saying, “Mr. Chief Justice, and may it please the court.” And at the end of the session, he could take a souvenir quill pen from the table where he would sit.

Despite the months of preparation for the argument, Najera came to the session with only one sentence written down. His head was packed full of case law, and he was worried that reading from a written argument would make him stumble. Instead, he settled for just one sentence to put him on the right course. After that, he planned to wing it.

Najera stood up, walked to the podium, and began.

“Mr. Chief Justice, and may it please the court,” he said. “Petitioner comes before the court asking one thing and one thing only, that the state of California be bound by its decrees and its laws that have guided it throughout the history of California, that the state and federal government be bound by the laws of the land that have been in place essentially since the state’s foundation.”

It was simple and to the point. The state and federal governments should abide by their own laws.

“I finished the sentence, and was like, ‘Oh my God, they haven’t asked anything yet,'” Najera remembered. “Then I started talking about the statute of limitations federally, and how the first chief justice was very instrumental in setting the court’s role in the issue.”

A few minutes into Najera’s riff, the justices began to throw questions at him. They wanted to know more about the case law he relied upon, and details about what exactly comprised a violation of the Constitution and what did not. The questioning largely paralleled the political persuasion of the justices. O’Connor, a Reagan appointee, accused Najera of trying to shoehorn his theory into one of the four narrow categories her court had articulated two centuries earlier. In a moment that many in the audience say was key, Najera politely informed Justice O’Connor about rulings that she herself had authored or joined in that supported his case.

Najera’s friends and colleagues say that he hit each of the justices’ questions out of the park. But Najera’s older sister, Olga, a professor of anthropology at UC Santa Cruz who was there with her husband and thirteen-year-old daughter, couldn’t get over how rude the justices were.

“I had a knot in my stomach,” she recalled. “Roberto was so eloquent and focused and respectful despite the incredibly sarcastic tone of some of the justices. You never would have known he was sick or nervous.”

Her sister Alicia concurs. “Scalia was snotty,” she said. “Thomas didn’t say anything, and looked bored like he was going to fall asleep. Immediately they started peppering him with questions and constantly interrupting him. He handled it really well. He wasn’t disrespectful even when he disagreed with them. It was very impressive.”

Najera’s performance ended a half hour after it began. Then it was Janet Gaard’s turn. An attorney from the California Attorney General’s Office, she argued that the law did not violate the Constitution. Essentially, she said there was no specific prohibition in the law or the 1798 Calder case law guidelines that barred states from changing a statute of limitations retroactively after it had expired. Irving Gornstein, a lawyer for the federal Solicitor General’s Office, argued the same points from a federal point of view. It was an intellectually dizzying hour of debate. And when it was through, few of the eyewitnesses were sure how it would all turn out. “It wasn’t clear when it all wrapped up,” Olga recalled.

“I said, ‘Roberto, this is not something you’ll be applauded for, but you should be very proud of yourself regardless of the outcome.'”

Najera himself remembers very little about the first moments after he walked out of the court chamber. “My knees were weak and I felt real spacey,” he said. As to whether he’d convinced a majority of the justices to see things his way, he couldn’t say either.

On the late June morning the justices were scheduled to release their decision, Najera bounced around various Web sites from his home, where he was recovering from his cancer treatments. Then he saw it: Justices Overturn California Law 5-4. Justice Stephen Breyer had been joined in a decision overturning the law by Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg, and Sandra Day O’Connor.

Najera had managed to flip the conservative O’Connor, who turned out to be the key swing vote. The majority opinion quoted former Appellate Judge Learned Hand, who “wrote that extending a limitations period after the state has ‘assured a man that he has become safe from its pursuit … seems to most of us unfair and dishonest.’ In such a case, the government has refused to ‘play by its own rules.'”

California’s law violated the Constitution, the opinion went on, because it “aggravated” Stogner’s alleged crime or made it “greater than it was, when committed.” A Constitution, the majority opinion said, “that permits such an extension, by allowing legislatures to pick and choose when to act, retroactively risks both ‘arbitrary and potentially vindictive legislation.'”

The dissenters, the remaining conservatives on the court, were not a surprise. Justice Anthony Kennedy wrote the dissent and was joined by Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.

The dissent was sympathetic to the rights of child-abuse victims. Justices in the minority said the Constitution did not forbid states from retroactively altering statutes of limitations, and they argued that the four categories outlined by the court in 1798 were specific and not to be expanded. Since there was no explicit prohibition in either the Constitution or in prior court rulings against retroactively changing a statute of limitations, the justices said it was legal. The dissenters also focused on the special problems child sexual abuse victims have in coming forward to report the crime, which they felt the law should take into consideration.

“When the criminal has taken distinct advantage of the tender years and perilous position of a fearful victim, it is the victim’s lasting hurt, not the perpetrator’s fictional reliance, that the law should count higher,” the dissenting opinion said. “It is a common policy for states to suspend statutes of limitations for civil harms against minors, in order to ‘protect minors during the period when they are unable to protect themselves.'” Quoting the California Legislature, the dissent said the law was a response to the fact that “young victims often delay reporting sexual abuse because they are easily manipulated by offenders in position of authority and trust, and because children have difficulty remembering the crime or facing the trauma it can cause.”

Jeffrey Fisher, a Seattle attorney who had authored a brief in support of Najera’s case on behalf of the National Association of Criminal Defense Attorneys, said Najera’s victory was substantial. “The thing that made this case hard is that this is a fairly conservative court,” he said. “Any time someone wins a case like this, they should be patted on the back.”

Najera’s boss was equally happy, but not really surprised by the court’s ruling. “If you simply look at the nature of the statute and the basic facts of the laws being employed, I didn’t think there was any way we could lose,” said Chief Assistant Public Defender William Veale. Had the court ruled differently and upheld the law, Veale believes it would have enormously increased the power of government officials. “If the statute would have survived, they would have the ability to come back against anybody with the thinnest of evidence and destroy political opponents,” he said.

Soon after learning about the ruling, Najera called his client in Arizona and told him the news. Unlike Veale, Stogner was stunned.

“Oh boy! I couldn’t believe it,” recalled Stogner, who insists that he never molested his children. “I’d never had such good luck. I was so proud for him. I don’t have any mixed feelings. A lot of these people convicted of these sex crimes from years ago were innocent.”

But outside of molesters and criminal defense attorneys, few people were celebrating. The high court’s ruling threw California’s district attorneys into turmoil. Molesters convicted because of the 1993 law had to be located and freed. Jailed defendants awaiting trial had to be let go. Dozens of cases under investigation had to be abandoned.

In Contra Costa County, the decision affected Stogner and about ten other defendants who were being prosecuted. All of those cases died that day. A couple of convicted molesters were released from prison. “From our perspective, it’s just disappointing,” said Robert Kochly, the county’s district attorney. “There’s a huge population of victims out there who’ve been trapped in a conspiracy of silence. This was an opportunity for them to try and gain some closure.”

For weeks after the court’s ruling, California newspapers ran stories with headlines such as “Three Molesters Could be Freed Today,” “Ruling Aids ex-Fremont Priests,” and “Priests Won’t Face Trial in Old Sex-Abuse Cases.” Worried about the public-relations fallout from the ruling, California’s Catholic bishops promised to remove any priests who ever molested a child, “no matter how many years have elapsed since a violation occurred.”

“We bishops will not let this judgment of the Court diminish our moral obligation to help victims of any age and ensure the safety of our youth,” a press statement read.

Bill Hodgman, a prosecutor in the Los Angeles District Attorney’s Office in charge of the Catholic Church sex abuse cases, remembers his meeting with fifty church-abuse victims after the ruling, and cringes.

“They summoned the courage to come forward and reveal this highly personal trauma they suffered as children and were looking to the criminal justice system to provide some accountability to their abusers,” he said. “Just when we raised their hopes and expectations that justice would occur, those hopes were dashed by the US Supreme Court. It’s a very, very devastating blow to be abused sexually as children and now they’re feeling revictimized by the system they were looking to for justice.

“In most of these priest cases, our evidence for these charges was pretty strong,” he added. “These priests just got very lucky.”

Wayne Presley, a 44-year-old Foster City man, is one of the people who’d hoped the 1993 law could help him get on with his life. Presley is one of eighteen alleged victims of former San Francisco Monsignor Patrick O’Shea, an ex-clergyman who was being prosecuted by the city’s district attorney’s office.

Presley saw the Boland bill as a way to help people such as himself find some peace. Now that’s been blown to hell. “I thought I was going to get my day in court, but I’m not giving up,” he said. “I think our rights should come before those of pedophiles. They would have had their day in court to determine if we were lying. These guys are just going to go on living. We can’t.”

For Jeff Anderson, a Minnesota attorney who has represented hundreds of survivors of church sexual abuse, the decision by the court cannot and should not be the end of the story. Extending the expired statutes of limitations for child sexual abuse has been and continues to be a top priority for his clients. Now, according to Anderson, they have to reconsider their options and assess whether there is any way around the court’s ruling.

“We’re going to do everything we can to get to the Supreme Court or Congress or legislatures to respond to this call,” he said. “This puts us back a hundred years. We can ask the US Supreme Court to review this and there’s an effort to do that. That’s in its early stages and is a long shot. We can attack this a number of ways, and that’s what we’re doing now.”

Even with the court’s ruling, legislatures around the country are free to change statutes of limitations for future prosecutions. They just can’t do it retroactively. Back in California, Boland, like Anderson, continues to explore what options are available to prosecute those who abused children decades ago.

But legal scholars say Boland and Anderson aren’t thinking straight if they believe there is something else than can be done to reinvigorate this debate. They say the Supreme Court decision shuts all doors to retroactively extending statutes, no matter how passionate the advocates feel about their cause.

“They’ve spoken,” said Kochly, Contra Costa’s district attorney. “That’s it.”

But while district attorneys calmly if warily accepted the court’s judgment, victims of child sexual abuse and their supporters were finding the ruling much harder to stomach.

“This Supreme Court decision will be forgotten and the public may forget it even happened,” said Paula Boland, author of the law struck down by the court. “But the victims will live with this decision forever, the way they are living with their victimization. I would just hope the public won’t forget, and will keep a jaundiced eye on many of the court’s decisions, especially when there’s a five-four split.”

Boland, like many others around the country, reserved special ire for Najera himself. “I would have a very difficult time living with myself and looking in the mirror if I was him,” she said. “I’m sad for him, because one day it will hit him — the damage and lives that will be further ruined because of what he did. These victims were so relieved that these pedophiles were off the streets, and now they have to face the fact that they’ll be back on the streets victimizing more children. That’s because the highest court of this land said it was unfair to the pedophile.”

Claire Reeves, founder of Mothers Against Sexual Abuse, a national nonprofit organization that helps protect children from pedophiles and offers support to adult survivors of child molestation, is still so upset by the ruling that she could barely maintain a calm voice during a phone interview. She gets worked up talking about the subject, especially when it comes to Najera himself.

“I believe the Supreme Court is endorsing child sexual abuse, or they couldn’t come to such a conclusion,” she said. “The lawyer who fought this case is reprehensible. I would question what he does in his spare time. Anybody who would fight so hard for child molesters, I have big questions about.”

Najera’s legal victory turned him into a hated man, just as his wife and sisters had predicted. But that’s okay with him. He’s used to being called names by his client’s alleged victims and their families; it comes with the territory of being a public defender. Only someone with a deep — and perhaps naive — faith in the human spirit could defend the people Najera goes to bat for.

“Some of the people I deal with are total assholes but, by and large, they’re like people you know,” he said. “They don’t make my skin crawl. I see their humanity. That doesn’t mean they haven’t done incredibly terrible things. What I do is look at the case from a purely legal standpoint. … I can recognize how children might not be able to immediately come forward, but then you have to also ask when they reach adulthood, how far in the past can we reach? Because at some point there’s no way to be fair to anyone.”

As Najera has weathered the scorn and derision of many for his efforts on behalf of Stogner, he has enjoyed the support of his family. His sisters are proud of him for standing by his principles, even though his victory has made him hated. “I’ve investigated child abuse and worked with victims on their abuse issues,” said Alicia, a Santa Cruz social worker. “I am of complete sympathy. But I believe what my brother did wasn’t about molesters. It was about rights for everybody; it was about justice. I can believe in that.” Alicia and Roberto’s sister Olga concurs. “He made a commitment to his profession that all citizens are entitled to protection under the law,” she said. “During his argument he even said something like, ‘Your Honor, even the most repugnant citizen deserves legal protection.'”

Still, on the day Stogner’s case was decided, the import of the ruling finally struck Najera. “It wasn’t one client; it was eight hundred people,” he recalled. “It wasn’t one angry family; it was hundreds of angry families. And it wasn’t one guy getting out of prison; it was a lot of guys. Everything was magnified.”

The Stogner decision shines a glaring, unflattering light on the tension between legal ideals and justice. Sometimes, what’s right for the law doesn’t always mean that victims get their justice. That doesn’t bother Najera too much.

“I sit back and think there are people who are in prison who are completely innocent,” he said. “Nobody gets outraged about that. We are either going to have a justice system with rules that can weather the storms, or you might as well arm the victims and have posses decide who’s right and who’s wrong. I am a believer in the system and in its flaws, in that we have to work really hard at it to overcome those flaws.”

But that work occasionally takes a toll. “Sometimes it feels as if everybody is against you — your clients, the system, the public.”

He’s got that right. His incredible legal victory, which is likely to be taught in law schools for decades to come, has also earned him another badge: He’s the man who opened the gates of hell.

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