Mark Cleary, a Michigan man who spent 16 years in jail, has been freed after his daughter recanted a rape allegation she made as a child. Prior to his trial, Cleary had failed a polygraph "test" administered by the
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http://www.freep.com/news/locmac/released13e_20050913.htm 'I'M MISSING 16 YEARS OF MY LIFE:' Prison nightmare ends after daughter recants tale of rape BY DAVID ASHENFELTER
FREE PRESS STAFF WRITER
September 13, 2005
Mark Cleary was no model dad, that's for certain.
He admits he cheated on his girlfriend, Susan, the mother of his two girls, and he came and went as he pleased. He and Susan fought all the time, over money, over whatever. His daughter says he did drugs in front of her.
But when Mark Cleary went to Macomb County Circuit Court in April 1987, he went looking for his kids. Rachael, his oldest, was 7; Kristi was 5. Mark was estranged from Susan, who had kept him from seeing the children for almost a year -- and he was fed up. He had petitioned the court for visitation.
At the courthouse, Mark was arrested, charged with raping Rachael when she was 6.
His daughter said it was so.
It took two more years to bring him to trial, a jury 6 1/2 hours to convict him.
Sixteen years later, he got out of prison, not because he had served all his time or because a parole board found him a model prisoner or because his conviction was overturned on some legal technicality.
It was because Rachael said she had made it all up.
Mark Cleary, now 46, is talking about his past, but hardly anyone else is. Rachael Cleary Patton, now 26 and living in Clinton Township, declined to be interviewed. So did her mother, Susan Giokas, who lives in Roseville. So this story relies on court records, trial testimony, prison documents and interviews with other participants in the case. (Both Rachael and her mother have married and remarried during the events described in this report, so first names are used throughout to prevent confusion.)
Mark says he was the victim of a witch-hunt, based on the uncorroborated testimony of a little girl who got in trouble.
And he says there's plenty of blame to go around -- to his ex-girlfriend, to law enforcement.
"I'm missing 16 years of my life for something I didn't do and I don't think I could ever be repaid for it," he said.
A stormy start Mark grew up in Roseville, the son of middle-class parents. He said he dropped out of high school in the 10th grade because of boredom, stupidity and an affinity for marijuana. He went back for a semester, but dropped out again.
By then, he was dating Susan Giokas. But her parents didn't like him and gave Susan an ultimatum -- stop dating Mark or move out. She picked her boyfriend. Eventually, Susan became pregnant with Rachael, and the couple struggled to make ends meet. There were lots of arguments.
"Sue and I never had a perfect relationship -- it was never good," Mark said, acknowledging he was a poor mate. There were girlfriends, and he wouldn't be tied down to their house, a mobile home in Macomb Township.
After several separations, Susan left for good in January 1986, with Rachael, 6, and a second daughter, Kristi, 3, in tow. A month later, Susan married another man.
Despite the breakup, Susan agreed to let Mark see his daughters. In late February of that year, they spent the weekend with him.
Pleasant enough, is how Mark remembers it, but uneventful.
But on the way home, the girls were suddenly hostile to Susan, according to court records. They called her a "biker bitch," possibly because of a movie they had seen the night before and because their stepfather owned motorcycles.
Thinking Mark had badmouthed her, she halted all future visits. He was left to petition the Macomb County Friend of the Court for visitation rights. In January 1987, Susan told a court referee that her ex-boyfriend would kidnap the girls if he were granted visitations, according to court records. But the referee called her claim groundless, recommending that a Macomb County Circuit Court judge grant Mark's request.
A month later, that would all change.
A pivotal encounter In late February 1987, a year after Mark last visited his children, 4-year-old Kristi caught 7-year-old Rachael and a 4-year-old boy under a bed, inappropriately touching each other. Kristi told her mother.
Shocked by her daughter's behavior, Susan paddled and screamed at Rachael, demanding to know where she learned such things.
"Daddy does it all the time," Rachael blurted.
In the weeks that followed, Rachael told social workers that her father had repeatedly raped her and threatened to kill her mother if Rachael ever told anyone. There was no physical evidence of sexual abuse -- just the graphic details she provided social workers with the vocabulary of a child.
Mark knew nothing about it until he went to court in April 1987, when he was arrested on a first-degree criminal sexual conduct charge. Six weeks later, a Sterling Heights District Court judge ordered Mark to stand trial. Under gentle coaxing from the prosecutor, Rachael told the judge her father had "touched me in the wrong places," saying it had happened as many as eight times.
The Macomb County Sheriff's Office gave Mark two polygraph tests. The first, officials said, was inconclusive. He failed the second. Mark decided to take his chances with a jury.
A 4-day trial got under way in January 1989, featuring testimony from 10 witnesses. Rachael, then 9 1/2 , timidly described what happened to her and social workers testified about what she had told them. They said the nightmares, anxiety and other emotional problems she had experienced were consistent with sexual abuse.
They also said they considered, but discounted, that she had made up the charges because of parental strife.
Against the advice of his lawyer, Mark took the stand.
"I don't know where Rachael gets her stories from," he testified. "I don't know if she has been molested by somebody else, but I know I didn't do it."
During closing arguments, Macomb County Assistant Prosecutor Kathleen Beard told jurors: "These are details that one would not expect of a young child unless she actually had been there and experienced this type of behavior. ... We have no reason to believe that Rachael is telling anything other than the truth."
Ronald Marsh, Mark's lawyer, countered that Rachael had been programmed by her mother and grandmother to lie about her father, claiming that Susan had talked to Rachael almost daily about the charges and played mock court with her to prepare her for trial.
Susan denied the accusation. But Marsh also pointed to the testimony of a social worker who was surprised that Rachael was familiar with the word "semen" and knew how to spell it. If there was any sexual abuse, Marsh said, it didn't involve his client.
The jury convicted Mark in short order.
After that, he spent several days on suicide watch in the County Jail before being moved to a psychological ward.
"I told my mother that it would have been a lot easier for her had I died rather than going to prison because I was going to be a burden for the next 20 years," Mark recalled. He said she begged him not to kill himself.
Two months later, in March 1989, Mark returned to court. After denying his request to set aside the verdict, Macomb County Circuit Judge Robert Chrzanowski asked him whether he had anything to say.
"Just that I'm innocent," Mark said.
He was sentenced to 20-30 years in prison.
A difficult existence Prisoner A199815 spent 4 1/2 years at the State Prison of Southern Michigan at Jackson, 9 1/2 years at Macomb Correctional Facility in New Haven and 2 years at the Mid-Michigan Correctional Facility in St. Louis.
During that time, he worked as a dishwasher, forklift driver and janitor. Eventually, he enrolled in a building trades program and learned how to use a computer to create building plans for houses that prisoners made for Habitat for Humanity. Twice-weekly visits from his mother and stepfather, Fred Melin, who owns a Rochester Hills executive recruiting company, kept him sane.
"After a few years in prison, you start taking it day to day," Mark said. "But you still lose a lot. Besides your liberty, you lose the companionship and hugs from your family. I realized how much I had taken Sue and the kids for granted."
In 1990, the Michigan Court of Appeals ordered Chrzanowski to review Mark's appellate claims, including his contention that he was poorly represented by his trial lawyer. Chrzanowski, who later retired, denied the request. In 1994, the state Supreme Court declined to review the case and Mark said he was beginning to think he might have to serve the whole term because he refused to admit to a crime he didn't commit and, because of that, was denied sex-offender therapy, a requirement for parole.
The years were equally unkind to his accuser.
Rachael would later tell authorities that she and her mother had frequent clashes. She said her mom repeatedly had her committed to mental institutions.
She said she twice attempted suicide at age 13.
At 15, she eloped with her boyfriend, Randy Hollifield, to Tennessee. They eventually had three children.
When she returned to Michigan two years later, Rachael, who had two children at the time, confided to her mother-in-law, Susan Singleton, that she had lied at her father's trial.
During a weekend visit to Susan Singleton's home in August 1997, Rachael sobbed uncontrollably, saying that she had sent her innocent father to prison, Singleton said. Rachael was so upset, the woman said, she decided to find Mark and send him a letter.
"You don't know me yet, but you will," Singleton wrote him. "I'm Rachael's mother-in-law. She told me about you and it's not true why you are in there. ... Rachael has felt bad about this for years. She just didn't know what to do. ... She told me her mom made her say it about you, and it is not true."
"My son Randy is married to Rachael and guess what, you have two little boys, Matt and Nickie, out there that need their grampa."
Mark asked his lawyer to depose Rachael, making no contact with Singleton or his daughter. He wanted no one to accuse him of coaching her.
During 25 minutes of sworn testimony a couple of days later, Rachael denied her father had raped her, saying the details of her court testimony came from questions her mother asked her and dirty magazines that her father and stepfather had kept in their homes. She also said the father of the little boy she had been caught with also had dirty magazines and that they looked at them before crawling under the bed.
During the deposition, Rachael said that after she was caught with the boy, her mother and her mother's girlfriend paddled her, demanding an explanation.
"They kept asking me, you know, why I did this," Rachael said. "And I was telling them, you know, why, that we had seen the magazines. And they just kept hitting me with the paddle. And then I said, 'My daddy did it,' and that is all I said."
"I wasn't a stupid kid, you know. I knew what to say," said Rachael, who has since remarried.
According to the deposition, Rachael said her mother never questioned her carefully about what happened, instead asking her "Did he do this?" or "Did he do that?" Rachael said she simply said yes and, having lied, couldn't back out of it.
"He wasn't the best father or nothing. He did drugs in front of us, but he never did anything that would hurt us," Rachael said. "He didn't need to be locked up for something he didn't do."
The night of the deposition, Singleton helped Rachael find Mark's parents, whom she hadn't seen since childhood. Mark called home and talked to his daughter for the first time since 1986.
"She kept wanting to apologize and I kept telling her she had nothing to apologize for," Mark said.
He had been in prison for eight years.
It would be eight more before he won his freedom.
A long road back Rachael's deposition was no magic bullet. Mark's parents spent the next four years trying to find and pay for a lawyer willing to put the deposition before a judge.
Eventually, Stephen Rabaut, a St. Clair Shores criminal lawyer, agreed to take the case for $20,000. But he warned the family not to get its hopes up, saying a judge might regard Rachael's deposition as an act of compassion for a guilty father. She took two polygraph examinations -- and both were inconclusive.
In August 2003, Rabaut asked the Macomb County Circuit Court to give Mark a new trial. It didn't come. So, in February 2004, Rachael wrote to Judge James Biernat Sr., who drew Rabaut's appeal. "My father does not belong in prison and I can't bear the weight on my shoulders anymore," she wrote.
Two months later, Rachael recanted her trial testimony a second time for prosecutors.
Finally, in December 2004, Biernat granted a new trial over the objections of the prosecutor's office, and ordered Mark released on bond. The judge said he was troubled that Rachael was the only witness, that there had been no physical evidence of sexual abuse and that her parents were in the middle of a bitter visitation battle. He also was concerned that Rachael may have been interviewed in a way that may have planted false allegations in her mind.
On Feb. 2, 2005, the prosecutor's office asked Biernat to dismiss the case even though it felt Mark was guilty.
"We simply cannot proceed in a case where we have a recanting victim," James Langtry, chief of operations for the prosecutor's office, said last month. "We don't know her motive for changing her story. Only she can answer that."
He said Rachael won't be prosecuted: She was a child when she testified.
The turn of events stunned some of the jurors who convicted Mark.
"She was so convincing," one juror said of Rachael, speaking on condition of anonymity. "It's horrible to have spent so many years in prison for something he didn't do."
"I don't think I could ever sit on a jury again," another said.
Manipulation claimed Gordon Blush, a forensic psychologist who ran the Family Services Clinic of Macomb County Circuit Court for 19 years, said he wasn't surprised by what happened to Mark. He said it happens more often than most people realize, though no one has definitively researched the problem.
Blush said his research in Macomb County Circuit Court in the 1970s and '80s found that children could be manipulated, sometimes inadvertently, into falsely accusing feuding parents of sexual abuse. He called the phenomenon the Sexual Allegations in Divorce Syndrome.
"Once the allegation is made, forces are set in motion that take on a life of their own," Blush said, adding that parents are still being prosecuted and convicted for crimes they didn't commit.
Mark says his ex-girlfriend and police share in the blame.
Last month in U.S. District Court in Detroit, he accused retired Macomb County Sheriff's Detective Warren Lamb of botching the investigation by failing to interview him to determine whether the allegations were true. The lawsuit seeks more than $75,000 plus punitive damages.
"Mark Cleary lost 16 years of his life because the detective didn't do his job," said Mark's lawyer, Ben Gonek of Detroit. He said Lamb never attempted to interview Mark.
Had he done so, Mark would have told him about the motivation for the false allegations which could have prevented the charges from being filed. "The whole situation is sickening."
Lamb and the sheriff's department declined to comment.
Gonek said he may sue the ex-girlfriend later.
But one person Mark doesn't blame is his daughter.
"She was just a kid," he said, "and she was doing what the adults around her wanted her to do."
Mark said he has gotten a job at a steel stamping plant, is dating and enjoying his freedom. He's getting on with his life. But it's not without pain.
"When I went to prison, I had children 9 and 6," he said. "When I got out, I had grandchildren that age."
Mark said he and Rachael have had some contact, though it's been nearly six months since they have talked.
She recanted, he figures, to clear her conscience -- not for them to have a warm father-daughter relationship.
But he's hopeful.
"I'm patient," Mark said. "I'm waiting for her to come around if she chooses."
Contact DAVID ASHENFELTER at 313-223-4490 or ashenf@freepress.com.
