By outlining the facts below, we intend to show that the investigation into the allegations made against Tim was flawed from its inception.

On March 18, 2009, Jennifer Astle called 911 around 12:30pm to report that her three children told her mother’s ex-boyfriend that they had been sexually abused by a man named Tim Guilfoy.  Jennifer Astle took the children out of school that day around noon to confirm her mother’s ex-boyfriend’s story with them in the car, and then took them home to call and meet the police. She did not take them to a hospital or doctor’s office before going home or calling 911.

The 911 dispatcher sent Clarksville Police Officers Chris Gilmore and L. Reed to the residence at 2026 Lintwood which Jennifer Astle was renting from Tim Guilfoy.  The Clarksville Police Department CPD Incident Report and Followup Report was filed the same day, March 18, 2009, at 4:40pm.  These officers did not speak with the children, but only Jennifer Astle, the childrens’ mother, as per Clarksville Police Department policy.  The summary of their report:  “Jennifer Astle stated that between 5/1/08 and 2/28/09 Timothy Guilfoy had inappropriate contact with her daughters.  DCS [TN Department of Children’s Services] was notified and a copy of the report was sent to Major Crimes.”  [Note: Jennifer Astle’s written statement to the police of March 31 indicates that the last time Tim was in bed with one of her children was March 16, 2009.]

The Astles moved from Nashville, TN, to Clarksville, TN in September of 2008.  The timespan of the allegations meant that crimes were alleged in two counties in Tennessee: Montgomery County where Clarksville is located (and where the 911 call was made) where the Astles had lived since October 1, 2008; and Davidson County where Nashville is located where the Astles lived prior to October 1, 2008.  Clarksville and Nashville are approximately 50 miles from each other.

While at the house, Officer Gilmore contacted Detective Ginger Fitting in the Child Abuse department of the Clarksville Police Department.  According to Det. Fittings Follow Up report Gilmore reported to her that the last contact between Tim and the Astles was “a week or so ago,” though in Jennifer Astle’s written statement she said it was only two days prior.  Even considering the most recent allegation just 48 hours prior, Astle did not take the children to a medical facility and the police did not suggest she do so.  Jennifer Astle never took initiative on her own to get the girls medically or psychologically examined.

No bedclothes or clothes of the children were collected.  Though the house was one location of allegations, no pictures were taken, no notes made of location of furniture or condition of sleeping areas, etc.  At no time did law enforcement take any items from the alleged crime scene for scientific forensic testing. (Later in court, while addressing the Nashville allegations that happened months earlier that because of limited jurisdiction made it seem like there were no recent Clarksville allegations, Fitting testified that in a case of a recent allegation, “we would have gone, photographed the residence.   Attempted to take evidence, sheets, or anything of that nature.” Oct 2011 Trial Transcript, p. 276 lines 21-23.  She did nothing of the sort in Tim’s investigation for the Clarksville case though the most recent allegation of Tim’s presence in the house was 2 days earlier.)

Fitting’s next move was not to tell Astle to bring the girls to the hospital for a rape kit or a well-being check, but to schedule a forensic interview of Jen and the girls at the Child Avocacy Center, which did not include a physical.  Appointments for verbal interviews only were scheduled for March 23.  Forensic/well-being physicals did not occur until April 21, 2009, over a month after the initial 911 call.

The Standard Investigation Process, as described by Detective Ginger Fitting and District Attorney Art Bieber 

On March 31, 2008, a story was published in Clarksville, TN’s newspaper The Leaf Chronicle entitled “Young Victims Put First”  This is a human interest story about the process of child abuse investigations in Clarksville, the law enforcement actors and actions that are involved, and Detective Ginger Fitting is interviewed prominently.

In summary, once the allegation of abuse is made to the police in the Child Sex Abuse department, the children are interviewed by a trained forensic interviewer at the Child Advocacy Center (CAC), physical examinations are made to collect forensic evidence, and the case is investigated for false allegations and veracity of claims by the Child Protective Investigative Team (CPIT), a division of the Tennessee Department of Children’s Services (DCS).  If the allegations bear out, the case is recommended to the District Attorney for an arrest warrant and criminal prosecution.

Please read the entirety of the article.  The relevant clips:

“Fitting said the things a child says in the (forensic) interview will be used to gather supporting evidence to back up the child’s claims.  The alleged abuser is interviewed, along with any other people the child may have mentioned.  Details about the abuse the child disclosed are investigated, Fitting said.  A case may take eight to nine months to investigate, depending on how things work out.”

“The majority of the cases that come to the CPIT [Child Protective Investigative Team] are unfounded — cases where an investigation proved the allegations false, said Art Bieber, assistant District Attorney…Bieber said they try to screen out revenge allegations.”

“If the detective or CPIT  feels strongly about the allegations and there is not enough evidence, they can still take it to the grand jury, Bieber said.”

“(Fitting says) Kids rarely lie about sex abuse.”

Addressing each point regarding this case:

-“Fitting said the things a child says in the (forensic) interview will be used to gather supporting evidence to back up the child’s claims.”  In this case, the three children universally reported verbatim that Tim had touched their naked “tutu” with his hand, and had been so vague or outlandish with other details that this was the whole complaint. It was so broad that Fitting simply could cast a net for whatever Tim said and form it into a warrant. One of the kids gave one detail of Tim wearing ridiculous striped pants during one of the assaults and that was the most corroborative detail they could have searched for in Tim, but no attempt was made to corroborate this detail on the call. The first warrant was thrown out because the detective had misrepresented Tim’s statements as a direct confession, and the second list of charges were taken directly from the childrens’ forensic interviews with no mention of corroboration or confession from Tim. (Interestingly, the first charge with the “confession” was posted with a $250K bond; when the second charges were filed without a confession the bond dropped to $50K. The State of Tennessee knew Fitting had overplayed her first hand and were trying to salvage her second.)

-“The alleged abuser is interviewed.”  In Tim’s case, the police-scripted and recorded phone call from his accuser who was allowed to lie in order to trap him into admissions was the only attempt of the police investigator to talk to Tim. Tim only knew that he was on a call with his friend Jen. Tim didn’t know that he was being interviewed by the police. He didn’t know he was a suspect. He didn’t know that anything he said could and would be held against him in a court of law. This legal tactic presumed guilt and was a stealth method of obtaining a confession.  No police or CPIT investigator spoke to Tim before or after the call to get any more clarity in the situation.  HAD Tim been interviewed and presumed innocent as is his civil right, he could have easily shown the financial motives of Jennifer to make a false allegation, provided proof he was not in TN on the dates of alleged abuse, and very willingly have taken a polygraph test.  In the secretly recorded phone call, Tim was lied to about the circumstances of the allegations and denied the allegations 67 times over three hours before making a statement that the detective termed “a confession” but did not hold up as such in court.  Tim didn’t even know the police were involved until they showed up at his door to arrest him, though all throughout the call he kept telling Jennifer to go to the police.

-“A case may take eight to nine months to investigate.”  Tim’s case took one week total to investigate from the initial 911 call to the day an arrest was made (3/18/09-3/25/09).  The investigation consisted of interviewing the people who made allegations and an secretly recorded series of strategically scripted phone calls from the accuser to Tim, all done within a span of 48 hours.

-“Bieber said they try to screen out revenge allegations.”  One of the stated purposes of the CPIT is to identify motive for possible fabrication of allegations of child sexual abuse.  There is zero evidence that any such screening was afforded Tim’s case.  Just nothing.  The CPIT team leader simply signed off on this incomplete-according-to-CPIT investigation.  If the formal allegations were made in the forensic interviews on March 23 and Tim was arrested on March 25, the CPIT had no time to ferret out a false allegation.

-“Kids rarely lie about sex abuse.”  When DO they lie about sex abuse?  When there is a motive to do so, which should have been investigated.  Of COURSE when there is an allegation from a child about sex abuse any person in their right mind should take them seriously and treat them as a victim on the outset, but questions must also be asked to prevent a tragedy like a false rape accusation from occurring.  These questions were never asked in this case.

-“If the detective or CPIT  feels strongly about the allegations and there is not enough evidence, they can still take it to the grand jury, Bieber said.”   The detective in this case neither got all of the evidence (physicals done April 21) nor brought the charges to the grand jury (April 8) before testifying to a judge that Tim confessed to a charge of rape of child in order to put Tim under arrest (March 25).  So essentially, the detective’s gut feeling of the accused’s guilt took precedence over actual collection of facts.

-We have been given the police investigation file as discovery, and nowhere in the file is there any indication of Jennifer Astle being questioned about conflicts in her relationship to Tim–either romantically, financially, or otherwise.  No covert or overt questions were ever asked of Jennifer Astle if she has a motive to file a false report.  No investigation into Jennifer Astle’s bank account, rental account, or work history was opened.  No questions were noted about any possible debts Jennifer Astle owed to Tim Guilfoy, even though it was clear that she was renting the house from Tim, and Jennifer certainly didn’t volunteer the information that she was in debt to Tim for $2975 that was due a week after her 911 call, or that Tim had told her she would be evicted if she did not pay her debt that day.  No in-depth questions were asked about a possible romantic relationship between Astle and Guilfoy, even though no such relationship existed.  No investigation was made into Jennifer’s criminal record or history of making unfounded accusations of abuse (specifically against her former husband, Matthew Astle in Florida).  Jennifer was never asked why she thought Tim might do this.  It was simply assumed that Jennifer Astle was telling the truth and Timothy Guilfoy had no right to an honest and fair inquiry.

–  When charges were pending in Montgomery County (Clarksville), Detective Fitting confidently told our lawyer that all monies that Jennifer Astle owed Tim HAD been paid, though this claim never made it in an official written report.  This is because it is just totally untrue and demonstrably so.  Had Fitting or CPIT investigator Parker investigated the rental agreement and bank account, that would have quickly proven Astle’s claim false.  The only two logical conclusions to make from this statement are that either Fitting didn’t check out Astle’s claims that financial debts were not present, or that she did and ignored the almost three thousand dollar debt that Astle had hanging over her head.

-The CPIT investigator mentioned in the DCS report, Investigator Miranda Parker, filed a report of her investigation that identified the accused Tim Guilfoy as the Astle’s landlord, states that he lives in Missouri, and suggests to Jennifer Astle that she move immediately and get the girls into counseling.  Parker did a home visit to the rental home and found the residence safe for the children and had extensive conversations with Jennifer Astle.  There is no record in the official DCS report that anyone from DCS/CPIT made an attempt to contact Tim at any time, even after his arrest when he was physically in Clarksville and available to them literally 24/7.  The report concludes with an administrative review of the investigation by Kimberly “TL” Smith, whose official capacity was not indicated further, but we assume “Team Leader.”  TL Smith found that the investigation was complete.  TL Smith came to this conclusion on April 17, nearly a month after the 911 call, over three weeks after Tim was arrested, a week after a grand jury indicted him, and four days before the girls had their forensic physicals.

-Interestingly, the report of the DCS/CPIT begins with the statement:  “CPSI Parker was assigned P3 (3 business day response) Sexual Abuse/Exploitation investigation.  Investigation involves three victims and one perpetrator.” (Emphasis added) This investigation was begun with the accused named not as “alleged perpetrator,” but “perpetrator.”

If the CPIT’s purpose is to investigate the veracity of claims on both sides of accuser and accused, this investigation was decidedly NOT completed, and the investigation was not concluded until long after Tim was charged with child sex abuse.  This was a case of “arrest first, investigate later and incompletely.”  No investigation into a possible framing of Tim for the crimes was ever considered, much less attempted.  The fact that Jennifer rented the house from Tim did not spur an investigation into the payment history of the lease agreement or any money owed, but characterized by the detective later as Tim keeping the girls accessible where he wanted them.  Neither investigator in the CPIT nor the Clarksville police recorded that they asked Jennifer how long she had been living in that house, how she had met Tim, or any particulars about the nature or conflicts within their personal relationship.  They certainly didn’t ask Tim any of these questions.  The paperwork of the CPIT lacks any sort of checklist on essential steps in the investigation to ensure a thorough inquiry.

Meanwhile on March 23, the children and their mother were interviewed at the Child Advocacy Center and disclosures were made that Tim abused them.  At no point in these interviews were questions asked of Jennifer Astle about a financial relationship between herself and Tim Guilfoy.

On March 24, Fitting asked Jennifer to make a controlled phone call to Tim, where she would be listening, providing verbiage for Jennifer to use, and Tim would be unaware that he would be recorded.  Fitting crafted scripts for Jennifer using the Reid technique that were specially designed to psychologically weaken the accused enough to make admissions under duress to legally secure an indictment.  Reid techniques allow the questioner to lie to and threaten the accused, to make promises that if he admitted guilt that nothing bad would happen to him, and to not accept anything as truth except an admission of guilt to appeal to the human desire to please and satisfy others.  If an interviewee does not give the interviewer the answer they want, they demand “honesty” until the interviewee tells them what they want/need to hear.  Fitting had prematurely decided without any proof that there was no reason for Jennifer to falsely accuse Tim.  She had decided without ever talking to Tim that he was guilty, a “perpetrator,” and that no other investigation was needed except to obtain evidence that he was guilty.  The purpose of this call as she would explain later in court was:

“It’s basically used to get the perpetrator’s side of the story, to see if he will admit to it; see if he will made admissions about it; basically to see what he will actually say about it; see if we can get any of the elements of the crime — for what you charge, you have certain elements you have to meet — to see if he will basically admit to any of the elements leading up to that crime.  And also, to corroborate the children’s story.  If they say they’re in a certain place, the perpetrator may put themself in a certain place and make admissions about their crime.”  Ginger Fitting, Oct 2011 Trial Transcript, p. 277 line 24- p. 278 line

The Changing Purpose of the Secretly Recorded Phone Call 

According to Fitting, she let Jennifer know it was Jennifer’s choice to help with the investigation:

“Q. (From Prosecutor Reddick): Did she (Jennifer) seem to think that it might be useful and it might give you some information that would aid in the investigation?

A: (From Ginger Fitting): She did.

Q. What was her general demeanor about the idea of participating in this call?

A:  She was nervous about it, as would any parent be, confronting a perpetrator–

Mr. McEvoy: Judge, I object to the use of the term “perpetrator.”  It should be alleged.

The Witness:  I’m sorry.

The Court:  It should be.  So it’s alleged perpetrator.

The Witness: The alleged perpetrator.  She was very nervous, as in anxiety, getting ready to confront him.” October 2011 Trial Transcript (OTT), p. 280, lines 3-19.

 

During cross-examination, Tim’s attorney asked Fitting to clarify what the purpose of the secretly recorded call to Tim was in terms of the investigation:

15 Q. I believe you describe a controlled phone call

16 as a technique used to obtain a perpetrator’s side of

17 the story. Is that correct?

18 A. Yes, sir.

19 Q. I believe you misspoke because it should be an

20 alleged perpetrator’s side of the story. Isn’t that

21 correct?

22 A. Yes, sir.

23 Q. Because when you’re assigned an investigation,

24 your duty is not to prejudge the facts of the case?

25 A. Yes, sir.

1 Q. Isn’t that right?

2 A. Yes, sir.

3 Q. And your duty would be to investigate thoroughly

4 and impartially to attempt to find out what the truth

5 was. Isn’t that right?

6 A. Yes, sir.

7 Q. A detective’s duty should not be defined as

8 obtaining evidence against the defendant in order to

9 convict the defendant of a criminal defense. That would

10 be inaccurate. Isn’t that right?

11 A. We would find evidence to either support or not

12 support a case.

13 Q. There we go.

14 A detective’s duty is not to obtain evidence in

15 order to convict a suspect. A detective’s duty is to

16 investigate impartially?

17 A. Yes. But that is considered collecting

18 evidence.  (OTT p. 304-305)

 

24 Q. it would be far more

25 accurate to say that a controlled phone call is a

1 technique that investigators use to obtain admissions

2 from a suspect. Isn’t that right?

3 A. Admissions or admitting the whole thing.   (OTT p.305-306)

Tim’s lawyer then questioned Fitting on the Reid Technique, used to elicit confessions from a suspect in what Fitting was still calling an “impartial” investigative technique of the Secretly Recorded Phone Call:

22 Q. Let me ask you, have you had special training,

23 such as the Reid School or the Reid Method or the Reid

24 Technique in conducting criminal interrogations to

25 obtain admissions or confessions?

1 A. Yes.  (OTT p.309-310)

 

10 Q. Tell me, it is incredibly specialized and

11 detailed and contains a great deal of psychology. Isn’t

12 that right?

13 A. Yes. I would say that. (OTT p. 310)

 

24 Q. And some kind of broader ideas, such as telling

25 a suspect, I know you did this; there is proof that you

1 did this; it is inevitable?

2 A. I don’t remember that specifically with the

3 Reid. But I think that’s a pretty common technique in

4 interviews.

5 Q. Another technique would be to minimize the

6 seriousness of the allegations. Isn’t that right?

7 A. Yes.

8 Q. To say, This is no big deal?

9 A. (Witness nods in the affirmative.)

10 Q. It’s not very serious?

11 A. (Witness responds in the affirmative.)

12 Q. Just tell me you did it?

13 A. (Witness responds in the affirmative.)

14 Q. That obviously is untrue, isn’t that right, when

15 we’re talking about child sexual abuse?

16 A. Yeah.  (OTT p. 310-311)

When asked if she told Jennifer it was encouraged for Jennifer to lie to Tim on the phone call in order to get admissions, Fitting testified:

“That is something I would suggest.  If law enforcement is involved, they’re less likely to talk.  So the fact that we wanted his side of the story and see if he’d admit to or make admissions about any crimes, I told her to tell him there were no police involved.” (OTT p. 287, lines 3-7)

Under further cross-examination, Fitting changed her definition of the purpose of the Secretly Recorded Phone Call from “obtaining an alleged perpetrator’s side of the story” to:

9 (Q.) It (the phone call) is productive if it contains an admission.

10 Therefore, the goal of it is to obtain an admission?

11 The goal is not to hear what a suspect has to say?

12 A. We’re getting his side of the story.

13 The ultimate goal, I think, in any interview

14 with the suspect, would be to get them to admit to the

15 actual crime. (OTT p. 315)

 

10 Q. (By Mr. McEvoy:) That would presuppose, then,

11 that every suspect is guilty? Would it not?

12 A. No.

13 Q. Okay. Got it. (OTT p. 316)

 

Detective Fitting’s “preparation” of Jen to make the Secretly Recorded Phone Call

We are not certain of all the discussion that happened between Ginger Fitting and Jennifer Astle between the 911 call on March 18 and the secretly recorded phone call from Jen to Tim on March 24.  What we do know about what they discussed is from their courtroom testimony about these conversations prior to these phone calls being made.

In terms of the guidance Fitting gave to Jen about how to handle the phone call, she first testified:

“Her (Jen) and I sat down for a little bit before the phone call.  And I basically explained to her what I needed him to make admissions about or attempt to admit, to kind of gear the questions towards that, because we have to have certain elements of the crime be met so we did talk about that.  Basically, she knew better than I did whatever it was going to get to get him to talk to–you know, free phrase questions with him and things of that nature.” OTT  p. 282, lines 7-16

That “little bit” turned out to be under further examination twenty to thirty minutes.  Tim’s attorney asked what other preparations were made to make this “investigative” phone call:

25 the only suggestion I had was not to let  

1 him know that the police were involved at this point.

2 She did the majority of the controlled call

3 herself.

4 Q. Well, I am thinking about the twenty to thirty

5 minutes’ preparation, or perhaps instruction or

6 coaching. It wouldn’t take twenty or thirty minutes to

7 say, “Don’t tell him you called the police.”

8 A. We also talked about elements of a crime, things

9 — I didn’t specifically tell her those things to say.

10 Q. Okay. But the elements of the crime are

11 essentially simple.

12 Aggravated sexual battery would be touching the

13 breasts, buttocks or genitals of a minor child —

14 A. Yes.

15 Q. — for a sexual purpose?

16 It doesn’t take twenty or thirty minutes to say

17 that?

18 A. No.

19 Q. Rape of a child would be sexual penetration of a

20 minor child, under the age of thirteen.

21 Again, that is relatively simple?

22 A. It is.

23 Q. So the twenty to thirty minutes of preparation

24 must have involved more than that. Isn’t that right?

25 A. Well, we talked about the elements. I believe

1 we reviewed what the girls had said in detail, too, so

2 she knew. And we talked about the case.

3 The main thing that we talked about was getting

4 him to try to admit or make admissions about an element

5 of the crime and not tell him that the police were

6 involved.  (OTT p. 312-314)

Fitting swore under oath that she did not give any other suggestion to Jennifer as they completed the Secretly Recorded Phone Call, in which Tim denied the allegations over 60 times.  When Tim’s attorney asked her to provide any notes she used during this phone call, Fitting claimed conveniently not to have brought them with her to court, though they were part of the official case file.  For reasons unknown (but probably because it looked shady to the jury that the notes were not brought to court), the next day in court the State provided the notes which contradicted Fitting’s account of Jennifer coming up with most of the interrogation on her own.  This is parts of the cross-examination of Fitting in light of the newly-found notes of the interrogation:

2 And I counted, it is twenty-four pages of notes.

3 If I told you that, would you disagree with that?

4 A. I would have to trust you on that.  (p.376)

 

25 Q. You were in a position that you were writing on

1 this pad, and then I guess passing it to Ms. Astle, or

2 you were in a position where Ms. Astle was able to read

3 it?

4 A. Yes.

5 Q. So what you’ve written down here are suggestions

6 or ideas, things that you think Ms. Astle should use?

7 A. Yes.

8 Q. One of them is a suggestion, “Is it possible

9 that you thought you were with women and it was the

10 kids?”

11 A. Yes.

12 Q. And that would be an idea or a scenario that you

13 wanted Ms. Astle to pose to Mr. Guilfoy?

14 A. Yes.

15 Q. I am looking at another. It says, “When you

16 would lay with them, I know the bed was small, could you

17 have put an arm or a leg around or over them?”

18 Was that a suggestion that you had that Ms.

19 Astle should ask Mr. Guilfoy?

20 A. Yes.

21 Q. I see also, “If they were having trouble

22 sleeping, would you scratch their back, rub their belly,

23 to help them go to sleep?”

24 Again, a suggestion you had for Ms. Astle?

25 A. Yes.

1 Q. “I know you are a great guy. Just tell me the

2 truth. We can handle this between us.”

3 Again, a suggestion you had to Ms. Astle?

4 A. Yes.

5 Q. This suggestion implied that if Mr. Guilfoy made

6 an admission, there would be no consequences; that he

7 and Ms. Astle would resolve the matter without the

8 police. Isn’t that right?

9 A. I would assume that’s how he would take it.

10 Q. “Even if you did touch them on purpose, it is

11 fine. I just need to know that my girls are not making

12 this up. We can work this out with us. I just don’t

13 want a pregnant teenager.”

14 Again, your suggestion for Ms. Astle to use with

15 Mr. Guilfoy?

16 A. Yes.

17 Q. And again, that obviously contains untruths:

18 “If you admit that you did it, it is fine. We can work

19 it out between us.” That’s not accurate?

20 A. Well, it depends what you determination of

21 working it out is. This, to me, is working it out.

22 Q. Okay.

23 A. So it depends on your interpretation, I would

24 say.

25 Q. Well, she didn’t say, We can work it out, just

1 you, me, and the Davidson County Criminal Court. Did

2 she?

3 A. She said us. I was sitting right there, and she

4 knew I was. I mean, it depends on his interpretation.

5 Q. So you will not concede that that was an untrue

6 statement?

7 A. It’s how he is going to interpret it. With us,

8 I was sitting there. She knew I was sitting there. She

9 knew we were going to work it out.

10 Q. Okay.

11 A. Misleading. I will go with that.

12 Q. Okay. “They love you and want you in their

13 life, but they don’t want it to happen again. Can you

14 promise me it will never happen again?”

15 Again, your suggestion for Ms. Astle to use in

16 talking to Mr. Guilfoy?

17 A. Yes.

18 Q. “Why did you touch them? I don’t understand.

19 Were you molested as a kid?”

20 Again, your suggestion for Ms. Astle to use in

21 talking with Mr. Guilfoy?

22 A. Yes.

23 Q. “I am sure there is truth in there somewhere.

24 Did they touch you first and you just got caught up in

25 the moment?”

1 Again, your suggestion for Ms. Astle to use in

2 talking to Mr. Guilfoy?

3 A. Yes.

4 Q. “Do you think when you stuck your finger into

5 [Child 2], you did any damage inside, because she is still

6 growing?”

7 Again, your suggestion for Ms. Astle to use in

8 talking with Mr. Guilfoy?

9 A. Is that the same handwriting?[

10 I don’t remember that one. But if it’s the same

11 handwriting, yes.

12 Q. “Get him to admit penetration,” with an

13 explanation point.

14 Again, your direction to —

15 A. Yes.

16 Q. Very good.

17 “I just need you to be honest. I want you to be

18 part of their life, but I need to know I can trust you.

19 Please be honest. I know they would not lie.”

20 Again, your suggestion for Ms. Astle to use in

21 talking to Mr. Guilfoy?

22 A. Yes.

23 Q. “Shit happens. People make mistakes. I think

24 you made a mistake, and I think we, as friends, can fix 25 this.”

1 A. Yes.

2 Q. Your suggestion.

3 “I know you made a mistake. I know you feel bad

4 about it. I can’t help fix it if you’re not honest.”

5 A. Yes.

6 Q. Your suggestion?

7 A. Yes.

8 Q. “I want them to keep quiet, but if they are

9 upset with you, I am afraid they will tell a teacher.

10 The guidance counselor thinks it is BS. Let’s keep it

11 that way. I need the truth so I can tell them you are

12 sorry for events.”

13 Your suggestion?

14 A. Yes.

15 Q. And again, that suggestion is false?

16 A. Yes.

17 Q. “I need to know what happened for my peace of

18 mind because I was molested and we fixed it within the

19 family, and I want to do that with you, but I need you

20 to be honest.”

21 Again, your suggestion?

22 A. Yes.

23 Q. “I need to know that is only you sticking your

24 finger in them and not your dick?”

25 A. Yes.

1 Q. “Are you having sex with them or just sticking

2 your fingers in them. Fingers are not that big of a

3 deal. They are still virgins.”

4 Again, your suggestion?

5 A. Yes.

6 I don’t believe she said that, though. There

7 are several in there that I don’t believe she even said.

8 Q. “Why can’t you be honest with me? Do you not

9 trust me after all we have been through? Bob-o does not

10 even know. It’s just us.”

11 Your suggestion?

12 A. Yes.

13 Q. And a suggestion that was untrue?

14 A. I am not sure if Bob-o knew or not at that

15 point, if that is what you’re — I believe he did.

16 Q. Well, was Bob-o, or Robert Brown, present at the

17 forensic interview the day before?

18 You don’t know that?

19 A. I don’t remember if he was or wasn’t.

20 Q. “Was your hand on top of vagina on skin because

21 that is not a big deal at all.”

22 Your suggestion?

23 A. Yes.

24

25 MS. REDDICK: Judge, at this point, I am going

1 to object to relevance and the cumulative nature of

2 this.

3 The detective has testified that she gave lots

4 of guidance. She’s provided the notes to Mr. McEvoy.

5 And at this point, it’s just cumulative.

6 And she’s testified, and Ms. Astle testified,

7 that they misled him during some of the conversation.

8 And the jury heard the conversation.

9 I think this is a waste of the Court’s time.

10 THE COURT: Well, he has a right to ask these

11 questions, so I am going to allow him to ask.

12 MR. MCEVOY: It was my recollection that it was

13 the detective’s testimony that she may have offered a

14 suggestion or two, but did not play an active role. (OTT p. 378-383)

 

Statements made by Jennifer Astle in the phone call prior to the “admission”

This section is going to illustrate the evolution of the statements that Jennifer Astle made on the secretly recorded phone call to Tim at the suggestions of Detective Fitting.  They begin as simple questions, with a lie at the beginning that Child 1 told the guidance counselor at school that someone was touching her, and that the guidance counselor called Jennifer but did not call the police.  The guidance counselor was never involved, but a ruse to make Tim believe that no police were involved and that Jennifer was on a private call with Tim and nobody else.  The questions later evolve into promises, threats, minimization of the abuse, and explicit demands that Tim make specific admissions of guilt, which are bolded.

It is important to note that the questions continue because Tim denies each allegation, or says that he doesn’t remember doing what he is accused of doing.

Call #1 of four calls

“is there anything they could have m-misunderstood” p. 2

“I just wanted to see if there was anything you can enlighten me with, as far as–you know, I mean, why would they say this” p.9

“And I don’t like them saying that you touched em, you know, I just wanted to ask you, was it something on by mistake” p. 9

“Yeah, I just wanted to talk to you as friends, we’re friends” p. 10

“You actually did touch them you know, on purpose, accident, whatever, it’s fine, I just think that the girls are, you know, making this up, and we can work it out, whatever” p. 11

“I don’t want any (inaudible) to talk to you, and you know, just find out if there’s anything you can think of that, that might’a happened, that she might of misunderstood or you know, didn’t–or wasn’t what she might have thought it was” p.12

“Yeah, I mean, well, and to be honest with you, I separated all of them, and spoke to them individually, and all three of them had, had said that you had done this to them, so I mean I know something happened, but I need to know why” p. 13

“And I don’t know why they would wanna, you know, do that, they love you just as much as I do.” p. 14

“They were upset when I started talking to them, and you know, they love you, and they want you around, but they don’t want it to happen again is what they said, so if you can promise me that whatever it won’t happen again you know, that you won’t…” p. 15

“I just said I’ll talk to him and if it did happen, then, you know, maybe there’s a, a misunderstanding or something, you know, I told them that we were going to try to work this out, you and I, you know they don’t like losing people in their life” p. 16

“Why you touched them, and you know, I don’t understand, they kinda just want answers on why it happened” p. 17

“There wasn’t any time when they like, touched you first and you know, you got caught up in the moment, or, or like did anything like that, right?” p. 18

“They used to fight over who was going to sleep with Tim when he came and now all of a sudden they’re saying, you know, saying that, that you’ve done…that your finger was in their pants” p.19

“I don’t know if I can pinpoint something with her or I can get her to pinpoint anything” p. 20

“Well, would there be a reason why she said that, you know, your finger went inside of them?” p.20

“I need some kind of answer here.” p. 20

“I just don’t know why they’re sayin this to me, Tim, I mean we’re friends, and it’s, I need you to be honest with me if anything’s goin on” p. 21

“I mean I know I can trust you, you’re my best friend and you know we’ve been best friends.” p. 21

“Well why would all three of them lie to me?” p. 22

“All three of em, right, right.  So if there’s anything you need to tell me, please.  Please.  Because I mean, they don’t, they don’t want you to stop being around, but I need to reassure them, and I need to know how to go about doing it for them, and I-I know they’re not all lying to me.”  p. 22

“They’re upset with you at this point.” p. 23

“It would make it difficult, because, you know, w-we live in this home.” p. 23

“Of course they love you and they didn’t want mommy to get mad at you.” p. 24

“And you know, shit happens, shit happens.  People make mistakes, you know.  If you made a mistake, you know, as friends, we c–you know, I think we could fix this.” p.24

“I mean I need to know how to talk to the girls, you know what I mean?” p. 24

“And I know if all three of em are saying it, something has happened, and I need to know who it is, you know, if it’s just one of em, or, or what, so I can tell who’s who’s telling me what is right and what’s not, so I can sift through what all they’ve been telling me.” p. 24

“I know at least one of them is telling me the truth” p. 25

“They don’t want you away from them” p. 25

“But you can’t remember anything?”  p. 25

“Were you drunk maybe, I know you were drinking a lot the last couple times you were here.” p. 25

“[Child 3] said she didn’t want to sleep in there with you because you’ve been sticking your fingers inside of her.” p. 27

“I know that they’re not lying, Tim.” p. 27

“So please, if you could just talk to me, and we can, between me and you, just let’s talk about this.  I know you made a mistake, and I know you might feel bad, you know, but I can’t help fix this if you’re not honest with me.” p. 27

“I just need you to be my friend and be honest with me.” p. 28

“I mean you gotta help me here, cause when I do go to sit down and talk with em about (inaudible) “hey hey, you know, he did, he did remember this one incident and, you know, he said that he’s sorry and he promises it won’t happen again,” you know what I mean?” p. 29

“Cause I’m not gonna treat em like a bunch of liars” p. 29

“Because they clearly said, you know, they don’t want you to be out of their life completely, they just, they just wanna know why, and, and for you to promise that it won’t happen again.” p. 29

“I mean, do you remember anything from then?  I mean, cause they can’t be saying this all of these times that this happened and you can’t remember any of em”. p. 31

“I just I need to tell them…and [Child 1] said that it happened, it just happened with you, before we went camping, and it was at grampa’s house, that you stuck your finger inside of her is what she said.” p. 31

“And so was it possible that that happened, I mean please be honest” p.32

“Because I need to tell em, that you know, you said that ‘I did this to her’ and, you know, I apologize” p. 32

“Did you do that to her, Tim? Tim, be honest with me, they’re not lying to me.” p.32

“I can’t very well go back and tell em that they’re, you know, Tim says this didn’t happen” p.33

“Could you please, tell me it’s true, so I can, we can fix this, just me and you.” p.33

“And, you know, I wanna try to get this worked out with me and you, you know, please.  I don’t want our friendship to be over.  The girls don’t want you away, I just need you to tell the truth.” p.33

“Well you know that I’m your, your best friend.” p.33

“You know, I think the world of you, I know you love me, I know you love the girls, you know.  People fuck up, dude, people fuck up and you and I know this.”  p.34

“A fuck up, and, you know, if it happened I’m sure you feel terrible, but I need to know the truth, I need know why she would lie to me Tim, why would all three lie to me.” p.34

“It hurt, it hurt them, and I-I mean just tell me the fucking truth so I can go and talk to these girls.  And I’m not gonna go back and tell em that you said that you guys are lying” p. 35

“I wanna be able to go and say, hey, he–he admitted that he did that and made a mistake, he swears that it won’t happen again” p. 35

“I have to settle them, because if I don’t settle them, you know, they don’t know what they’re gonna go and say to other people, this is between me and you, and I’m trying to talk with me and you right now” p.36

“[Child 1], you know, [Child 1] specifically said that you did this to her…finger and everything, and if you doubt all three of em, you know, I-I know something happened, I know something happened.” p.36

“And I need you to tell me what happened so I can talk to them, and help them to move past this so this doesn’t go any further, just me and you, you know, the last thing I want is some fricking investigation going on in my house, you know?” p.37

“I need to know for my own piece of mind, I need to know that I can trust you and I know they’re not lying to me, I know something has happened.” p.37

“Well I don’t want to make a huge fucking spectacle” p.37

“You know, if we can’t admit that we’ve made mistakes to them, then they’re gonna get angry.” p.38

“And I want them to keep quiet, you know, but if they’re upset with you, I’m afraid that they’ll tell teachers, and the guidance counselors something else, and the gui- the guidance counselor thinks it’s bullshit, she’s not sure, you know, let’s keep it that way, I don’t, I need the truth so I can tell them that you’re sorry for everything.” p.38-39

“You’re not telling me anything.” p.39

“They’re not lying to me.” p.39

“I’m trying to be your friend here.” p.39

“You, no, you were awake, and laying in bed with them, with your fin–you were putting your p–hand, down her pants and put your finger inside of them.”  p.40

“I mean, I need to know what happened for my own piece of mind.” p.40

“If this happened to me, when I was a kid, you know, and I, you know, my mom took care of it another way, it wasn’t, you know, and, and so I’m trying to do it that way so it’s not such a huge spectacle.” p.40

“I wanna go back and tell them that you freaking admitted to at least one time, so they would say, okay, we’re not crazy, mom at least will believe us and we can fix this.” p.41

“They’re only saying that it’s, you know, that it was just your finger and not your penis, you know, so thank God for that, but I, you know, I need to know that’s all you did” p.41

“Well, I mean without you telling me anything for real, Tim, I mean, for real.  I need to be able to head this off at the begin–you know, when this, if this thing breaks out further than it’s out, head it off at the pass, I need to know what’s going on and I need, I need you to tell me.” p.42

“Cause if I go back and I tell em that you frickin denied everything, they’re gonna freak out” p.42

“I wanna go back and say okay, we talked about, Tim remembers that happening, and he wants to tell you that it was a big mistake, he’s sorry, he loves you, you know…I need something or they’re just…I don’t know what’s gonna, what they’re gonna do…you know, girls, they’re, they’re pretty outspoken children.” p.42

“I mean, did more happen than that, than what they’re saying?  Did, you know, did you, is it bigger of a situation than what they’re telling me” p.43

“I want it just, just me and you to fucking talk about this, and I need you to fucking tell me because I know this happens, Tim, I know this happens, and I know you’re a great guy, I love you.  I know you, very well…I, you know, I love you to death, I love you, the girls love you…I know they’re not lying to me, please, please help me to, to do something to fix this.” p.43

“I don’t want them thinking that we think they’re a big bunch of fat liars, the worst thing we can do is make them feel like they did something wrong.” p.44

“I know they’re not lying, Timmy, I know it.” p.44

“There just can’t be so many incidences that they can explain.” p.44

“I mean, you’re not having, you didn’t have sex with my kid, did you?” p.45

“If you stuck your finger inside of them it’s not as big as a deal as it was if you were to stuck a penis in there.” p.45

“I know they’re not lying to me, Timothy.” p. 45

“And I am trying to avoid this going any further than this house but I can’t promise any of that if I can’t freaking have you be honest with me, and you’re making me feel like I can’t trust you.” p.46

“They can remember specifics, but you can’t remember any specifics?  I mean, that’s, that’s just ridiculous, Tim, come on” p.46

“I-I can’t help keep this here if, if I don’t know for sure what the fuck is going on, you know, or I’ma just have to go with them, instead of trying to fix it, and be glad with that, and I can’t, unless you can fucking be honest with me.” p.46

“I mean, you’re talking about the house and living in your fucking house” p.46

“I’m not fucking around.” p.47

“They say almost every time you’ve stayed the night with me, since you moved to St. Louis and come to the house in Nashville…so out of one of those times you can’t tell me that you don’t remember one of those times, I feel like you’re lying to me.” p.47

“I mean, did this shit start in Nashville, is that what’s going on?” p.47

“I’m fucking trying to be your friend here” p.48

“Me and you can work this out, we’re friends, we’ve been friends, I trust you, I know people fuck up.” p.48

“We’ve all fucked up before, but this is fucking serious shit right here.” p.48

“We need to work this out.” p.48

“And the only reason, that I called you, before I, you know, is because I, I feel like I can trust you, I feel like you, you will be honest with me, you know, I, we’re friends like that, you are part of this family, you have been, you know, since day one practically, never a doubt in my mind, and I know you’re a fucking good guy, I already know this, you know…and I’m trying to do this just between me and you and these girls, I don’t wanna fucking go any further with this…you won’t tell me anything, you won’t tell me things, so at this point, that’s all how it’s starting to feel, right now, I need you to fucking be honest with me so I can fix this, we can fix this…the last thing I want is a bunch of fucking investigators going on in my home, you know, the kids they’re put through all that bullshit, you know.” p.48-49

“Did you do this to one of them, Tim, did you do this to one of them.”  p.49

“I want you to to be honest with me.” p.49

“You weren’t sleeping, what they’re telling me, you were not sleeping, okay?” p.50

“Tim the only fucking way I can do this without getting help is for you to tell me the truth” p.50

“I have three girls sitting here, telling me that you have, touched them, inside their underwear.  If I have to go back and tell my children, that, they’re liars and I don’t believe them, th–it’s not gonna happen” p.50

“The issue is that three of these girls are telling me that you’ve done this to them…and if you can’t be honest with me I have to do my best to protect them, you hear me?” p.50

“And you’re right, yeah, I do want you to admit this to me, so I can figure out how to fix this.” p.51

“Okay you’ve got all this great fucking stuff going for you, all this wonderful stuff, I do not want that happening to you, this is what I’m trying to avoid right now, you think I want to see you go to jail?  You know, you were in my fucking college textbook as my most inspirational friend that I have, I don’t want this for you, I don’t want this for the girls, I just need to know what’s going on and you aren’t telling me shit, you’re not telling me shit.” p.52-53

“You should trust me, because I, you know, I could have easily just called the law which is probably what I should have done, but this is you we’re talking about here, this is, this is it, fucking brain damage, fucking friend I have…and I know, you and I both know that this happened, they’re not lying to me…you know, I don’t wanna know why, I wanna know, they wanna know why…you know for them to be grown up enough tot say, you know, we know people make mistakes, they know that too, you know, they, they don’t wanna think that, you know, you’re a bad person.” p.53-54

“I told em I was gonna do my best to get to the bottom of this with you, you know, and I think that they want you to, admit it, so that, you know, they can feel some kind of relief and don’t feel like a bunch a’ freaks…so I can say, hey, you know, I mean, he, he he said that this did happen and he’s sorry, he doesn’t know what he was thinking, or, you know, it could be so many reason, people fuck up dude, people fuck up.” p.54

“Are you telling me that this happened then.” p.55

“Then you fucked up, and that’s fine, just something, I need the truth, I don’t even need fucking explicit details out of your mouth, because they can tell me” p.55

“Why are all three girls saying this, Tim?” p.55

“Well you believe them you couldn’t have been incoherent, they can remember everything, so it’s not that you believe them, you’re not telling me the truth, is what’s happening, you’re not telling me.” p.55

“You’re not admitting to making a mistake to me, you’re telling me, you know, if they said it happened, it happened, that’s bullshit, dude.” p.56

“And it’s not even just for their sake, it’s for me, I need to know that you can admit and make, and take responsibility for your fucking actions, and tell me the truth.” p.56

“You don’t want to make this harder that it, that we c–, you know, we can, we can fucking work this out dude” p.56

“I don’t wanna hear that, you know what I wanna fucking hear, I want you to tell me that you made a mistake, and you won’t, it will fucking never happen again.” p.57

“So they’re telling me you touched them, and so you’re gonna tell me that that’s the truth, all three of them” p.57

“So all three of them, you’ve touched all three of them?” p.58

“No, not if they say so Tim, that’s not gonna work, Tim, If you want me to help you, you’re gonna fucking tell me” p.58

“I am telling you they are specifically telling me that your finger went inside of them.” p.58

“If you can’t fucking tell me the truth then I can’t fucking trust you and this gonna get really, not good.” p.59

“Why do they remember, Tim?  Why can they remember, why can they actually pinpoint certain times it happened and you don’t know?” p.59

“They’re wanting to freaking forgive you, and they’re wanting to fix this too.” p.60

“Are you telling me that you touched my kids?” p.60

“I mean, was it, was your hand on top of their private, on the skin, or something, that I mean, that’s not, such a big deal.” p.60

“You know, it’s not a big deal, we can say , hey, you know, I can, I can find something to say to em, I need to know for me.” p.61

“I mean, you’re not making this any better.” p.61

“The last thing I want is to fucking send you to jail, I don’t want that to happen.” p.61

“Why can’t you just tell me, and we just won’t even go there and I can figure out a way around this.” p.61

“Did your hand ever go in their pants?” p.62

“Dude, so you’re telling me then, if nothing else, everything they’re saying is the truth?  And that you did all this to them, is what they’re saying. I mean, they’re saying it happened in Nashville, and it happened here, so this has been about a year going where they didn’t wanna lose mommy’s best friend and they didn’t want to upset anybody–they thought maybe it was a mistake, you know what I mean?” p.62

“So it’s true, then, that it happened here and it happened in Nashville?” p.63

“I’m trying to be your best friend, which I—which I am.” p.63

“I trust you more than anybody, you know that, Tim.” p.63

“Please, without getting all kinds of craziness involved, I need your help.” p.64

“You know I would never ever talk to you in a mean way, I would never do this, I am your best friend, Tim–I know people fuck up, you know I know that.” p.64

“This is not helping.” p.65

“Are you, are you all worked up and upset because you feel bad for what you did, for putting your fingers inside of my children, or I mean, come on dude!” p.65

“And I don’t wanna go to the gruesome fucking police, whatever the fuck they do, you know, I don’t want any of that shit and I don’t need that shit, you don’t need that shit.” p.66

“I know you’re not a bad person, I know you maybe fucked up, please be honest and tell me what happened, we both know you did this.” p. 66

“I mean, what is it, something you don’t wanna talk about, because it upsets you, or what?” p.66

“We both know this happened, and I know you know it happened, and I know you’re not being completely honest with me.” p.67

“I mean, do you feel bad about it” p.67

“I can’t help you or them if you don’t fucking talk to me.” p.67

“I know this happened, I kn–I know and you know, I know you know, and I know that you maybe are really ashamed and you just don’t wanna say anything, and I understand that too.” p.67

“I mean, is it going to be easier if I just ask you though, ask you, y-yes or no questions, you don’t wanna talk about it?” p.67

“You weren’t asleep, you were awake, and I know this, and you know this.” p.69

“I mean, I know this is, this is really fucking hard, this is really hard, to admit doing something like this.” p.69

“Do you have problems, Tim, do you need help?” p.69

“I am your friend, you  know I’m your friend, I wouldn’t have even called you, to talk to you, is there something wrong, do you have a problem, do you need help, or any–I need to know…I mean, we can get you help, you know, if that’s what you need…you know I would do anything for you.” p.69-70

End of Call #1 (because one of the phones died)

So to recap, this was the “impartial” and only investigative tool “to get Tim’s side of the story.”  Tim at this point has denied the allegations over 40 times.  Jennifer Astle, with the help of Detective Fitting, is demanding that Tim make specific admissions, which he to this point is refusing to do. This was not an attempt to get facts, this was an interrogation with only one goal–to get him to say any sort of words characterizing the allegations as true to secure an arrest warrant. Jennifer Astle needs that arrest warrant because she doesn’t want to get evicted. Detective Ginger Fitting needs that arrest warrant because solely on Jennifer Astle’s word she has made up her mind that Tim is guilty, and she just botched a huge CP case right before she got this call, she’s getting this one no matter what. Threats are made by Jennifer to call the police, ruin his life, and that “things” are ominously “going to get…not good” if he doesn’t tell her exactly what she wants to hear.

In the following call, Jennifer continues to demand the truth, but as Tim is truthfully telling her that he denies the allegations or doesn’t remember the events she’s talking about, she does not accept that as the truth.  The only “truth” she (and the listening and scripting police) will accept is his admission of wrongdoing.

Call #2

“I know you weren’t sleeping when this happened.  I know you have some kind of recollection.” p. 1

“Are you sexually attracted to young girls?” p.1

“I love you to death and want to help you.  I don’t want you to be in trouble.  I don’t want your whole life ruined.  I don’t want anybody’s whole life ruined.  I need you to fucking tell me because I know what they’re saying is true and I need you to be my friend and tell me, I mean, calm down, calm down, I know you remember.  I need you to be honest.” p.1

“If I can tell it to one, maybe I can make all three of them and fix this; so it was in Nashville?” p. 4

“You’ve got to tell me something or I’m not going–” p.4

“And three little girls can remember everything and you can’t tell me nothing.  Did you stick your fingers in [Child 1] at Brian’s house?” p.4

“There is no way out of all these incidents that you don’t remember.–and you’re not being truthful with me right now and I know this, I know you.” p.4

“Timothy.  Why wouldn’t–why wouldn’t you remember?  Why wouldn’t you remember not even once, you’re not being truthful with me.” p.4

“They think you love them and they love you too and I’m wondering if maybe so much closeness, you know, that something was a misunderstanding, a mistake, and it’s understandable, it’s understandable, I just want you to tell me the truth.” p.5-6

“I know it happened, I know it did and I know you’re not being honest with me and I wish you would.” p.6

“I’m not expecting you to come out with this big long story, all these stories or anything, I just want you to admit to me that it’s true.” p.6

“Were you fucked up?  Were you fucked up when you did it?  Maybe? Come on.”  p.7

“I’m tired of you not telling me the truth.” p.8

“(Inaudible) is the truth and you won’t give it to me.  I – I – I can’t do this.  I can’t do this.  I’m trying to give you the opportunity, I don’t know how long I’ve been sitting on this phone trying to talk to you and you’re lying to me, Tim.” p.8

“I’m trying to be nice and help you is not working.  I’m done.  You want to call me back in ten minutes and think about this, that’s fine, if not, I’m going to do what I need to do, you understand me?”  p.9

End of Call #2

At this point, Tim is under major stress.  He has been led to believe by Jennifer, who he at the time trusted to be only truthful with him, that he cannot trust his own memory.  He says over and over that he didn’t abuse the children, and she will not accept that.  Truth is not working.  Logic is not working.  She has threatened to call the police four times at this point and he has suggested she should.  He is trying to assist her by thinking of anything that could have been misconstrued as improper, but nothing he can think of matches the allegations of inserting his fingers into any of the children’s vaginas.  Jennifer will accept no other statement from Tim except an admission of his guilt in the abuse, nor will Fitting. Tim still calls back though, because he is horrified for the girls and still thinks Jen is his friend, he wants to help and figure it out.

Tim has been under this torturous interrogation for over two hours.  As Fitting testified later, these first two calls were “not productive.”  

Call # 3  

“I need you to be honest with me, Tim.” p.1

“You’re bullshitting me right now.” p.1

“You know, if you stick your finger in one of my kids, you know, it’s not like you fucking raped my child, you know what I’m saying, it’s not that fucking severe, but I – I know that it happened.” p.2

“If you can’t tell me something for my own peace of mind, you know, because I know what what it’s like to live your whole life with some shit like this, you understand me?  I cannot help my children if I don’t fucking know what happened.  And you’re right, it will cause a lot more problems.”  p.2

“You’re not being truthful, you’re not helping me help.” p.2

“The fact that you’ve already broke down and cried to me tells me that you know more than you’re telling me, and you know I’m not stupid.” p.3

“You did something dumb, and I, you know, it’s a stupid, fucked mistake, you fucked up.” p.3

“You can’t even admit to me you did it once, nevermind again, you know, you’re not being honest with me, you’re not helping me.” p.5

“I understand, it’s okay to be scared, I’m scared.  I’m your friend.  I want to help you, Tim.  You know, I know you got tons of friends, tons of friends that would do anything for you, okay, I’m sure.  What are you so scared about?  I’m trying to help you.” p.5

“Yea, consistent seems to be something that’s been going on here, since this is touching them multiple times, I mean.  You should just be happy at this point that they- they want to fix this with us.” p. 6

“Look, I asked you to call me back to call me and be truthful.” p.6

At this point, Tim is desperate to make sense of the allegation. Tim relays a true and terrifying story of waking up in a bed in the house with [Child 2] on top of him, straddling him.  Half-asleep, he pushes her off of him, but has convinced himself (under heavy duress to come up with a story) he might have thought for a moment as he was waking up that he was with a full-grown woman and touched her butt before realizing it was the child and pushing her off of him. The entire exchange follows:

Jennifer Astle:  So, what, were your fingers in her or what?

Tim Guilfoy:  I – I – I remember, I remember my hand was on her butt, at least, it was under her, it was under her underwear, I think, I mean, it – it all happened so fast, I realized what was going on so quickly and that was it, and it was–

Jennifer Astle:  (Inaudible) is that why she may be (unintelligible) for touching her private area.

Tim Guilfoy: Maybe, and this is – seriously, this is, I – I didn’t want to say anything because-

Jennifer Astle:  (Inaudible)

Tim Guilfoy:  Is there a possibility?  Yes, there’s definitely a possibility, especially if she got freaked out and she hasn’t slept in the same bed since, which-

Jennifer Astle: In Nashville?

Tim Guilfoy:  What, in Nashville?  No, this happened in – this was in- this was in October, this was in – this was in Clarksville.  God, I — it’s been fucking with me every since –  (p.8)

Tim tells Jennifer that since it must have happened in his sleep, he can’t remember exactly what happened, but tried to put together a linear story for her, with the intent of getting her off of his back.  He is frustrated and searching for something that will satisfy her demands for something she will find “truthful.”

Tim Guilfoy:  I woke up when she was on top of me.  I assumed – I didn’t even think that like, it was – she was – she was – she was awake, she was not asleep.  If I was asleep before I woke up, then she was on top of me, she crawled up there.

Jennifer Astle: Right.

Tim Guilfoy:  I mean, I was asleep, but I can’t imagine–

Jennifer Astle: – back and you were kind of –

Tim Guilfoy:  Yea, I was laying on my back.

Jennifer Astle:  -man, hard thing.

Tim Guilfoy:  Well, I – I always sleep on my back, it’s just – it’s how I sleep, I don’t sleep on my stomach.  She was-

Jennifer Astle:  So she was on you when you were like kind of hard it was–

Tim Guilfoy: Yea, I think – well, when I woke up, yea, yea – I – I Goddamn, I mean, I – uh- shit.  p. 10

Tim tells Jennifer that he was the victim of an unwanted sexual advance from a friend of a friend while Tim was asleep, and that he was uncomfortable that the child was touching him in his sleep when he might be having sexual thoughts in his sleep.

Jennifer Astle:  So it is possible then that your finger did go inside of [Child 2] then?

Tim Guilfoy:  It’s possible, I woke up and I remember – what I remember is, I – I woke up thinking I was with a girl.

Jennifer Astle: Right.

Tim Guilfoy:  I realized it was [Child 2], I realized where I was.

Jennifer Astle:  And then by then it had been too late, right?

Tim Guilfoy:  And by- by then, I – and I think she got freaked out a little bit.

Jennifer Astle:  Did she leave the room? That’s what she said.

Tim Guilfoy: Yeah, I think she did.  I mean-

Jennifer Astle:  I mean, it’s okay because what you’re saying is what she said; you didi say that the finger did go inside of her?

Tim Guilfoy: I think it did.  I mean, I don’t know, I can’t be – I’m being – I can’t be sure. (p.12)

Jennifer, and more importantly, Detective Fitting was satisfied with this extracted statement and tried, unsuccessfully, to get Tim to admit to the other allegations which he did not.  They came around to this one again.  Tim is convinced that he must have done this while he was sleeping.

Jennifer:  So it’s possible that you thought you were with a woman, but it was the kids?

Tim Guilfoy:  Yea, it’s — that’s, that’s – it’s not only possible, it was – it was, yea, that had to be what happened.  I’m not attracted to children.” p. 15

Jennifer:  Right, well I just want a yes or no answer, if you stuck your fingers in all of them thinking that, you know, it was a woman, you know, in your sleep or whatever? p. 16

Jennifer: “I appreciate you being honest with me, okay.” p. 17

Jennifer: “I don’t plan on paying any money to be here until I know what’s going on.  I’m not gonna – I don’t even know if we’re going to be able to stay here, okay?  So, I will let you know in advance, but I’m not going to deposit money in the bank account right now.  I need to get a grip on this.  If I decide I need to move out of this house and that’s gonna be it, I will let you know as soon as possible, okay?  (inaudible) them to sleep in a room where something like this has happened to them.” p. 17

Notice Jennifer’s immediate response to him finally making an incriminating statement is about their financial relationship and her withdrawing from any financial responsibility to Tim because of what she just got Tim to say. She continues to talk about rent:

Jennifer:  “The first half of the rent has already been deposited.

Tim Guilfoy: Today?

Jennifer:  No, it’s been about two weeks ago.

Tim Guilfoy: I don’t think it showed up.  I don’t know, I’ll call the bank.

Jennifer Astle:  No, there should be one round already in there, you know I do it twice a month, so.

Tim Guilfoy: All right.

Jennifer Astle: I mean, I can’t even fathom – fathom paying for – for a home that something like this happened in at this very moment.” p. 18-19  

 

And THERE is what this whole phone call was really about.

After this point, Jennifer was only interested in talking about other allegations or the situation of the house she was still in that she told Tim she would no longer pay for.  Tim was arrested the following day.

What should have been done in a fair investigation that wasn’t

1. Checking the dates when alleged abuse occurred: In her written statement to the police, Jen listed out specific dates where Tim was in Nashville or Clarksville in a specific bed abusing a specific child.  At trial, she testified she “can positively remember” these dates, (July 2011 Trial Transcript {JTT}, p.106, lines 1-2).  After going through each date and saying why she remembered that Tim was there on a particular day and which girls he slept with (JTT p. 106 line 10-p.109 line 16), she confirmed the veracity of her claims again:

17 Q: So are the recollections that you wrote down, some two

18 and a half years ago, contained in these pages accurate?

19 A.  Yes, sir.  To the best of my knowledge they are.

July TT, p. 109, lines 17-19

 

A proper investigation would have shown that Tim wasn’t in the State of TN for the majority of these dates, backed up by alibi witnesses and physical proof.  Tim had two witnesses, Mike Langston and Gary Tautphaeus, who were willing to show proof that they were with Tim in different states at the time, but no investigator ever contacted them.  In later trial testimony we showed that there was no way Tim was present in the Astle house on these dates and Jennifer testified in response that she was mistaken.  Jennifer later denied that she had ever listed any dates of abuse or that she was “positive” about them.

2. Overt and Covert investigations on any motive for false allegations: Relationships, work histories of all parties, financial relationships and contracts, debts owed, prior criminal histories of all parties, positions of desperation of the accusers, drug abuse

3.  The MySpace accounts–Jennifer Astle had active social media accounts at the time of the allegations in March 2009 where she posted statements calling Tim a child rapist and taunts to Tim that he would be raped in prison.  On April 20, the day before her children were to be physically examined for sexual abuse by the county physician, Jennifer Astle details her active participation in “4/20,” a holiday celebrating marijuana use.  She clearly was publicly advertising her own drug use, and the detectives that were supposed to be investigating both sides of the allegation didn’t include a cursory search of her social media presence, much less ask her about her admission of illegal activity on it.  Her daughters also messaged Tim that he had hurt “their sister” but not them.  They should have been asked what these messages meant and why they sent them, but the detective didn’t bother.

4.  Question/follow up on Jennifer Astle’s stated intentions as recorded in official investigation documents/recordings–Jennifer Astle said on the recorded phone call to Tim that she wasn’t going to pay him rent anymore after he made an inculpatory statement.  She said on the recorded phone call that the first half of the March rent was paid, a verifiable lie.  Jennifer Astle indicated to both Detective Fittings and CPIT Investigator Parker at the time of the allegations that she was moving out of the house Tim owned as soon as she could, immediately.  Jennifer Astle told CPTI Investigator Parker that she did not want to continue paying Tim rent.  Parker advised her to move and get the girls into counseling, which Jen said she would do, immediately. Jennifer Astle did not move out as soon as she could after the arrest on March 25, 2009, and missed counseling sessions enough that letters were sent to her address.  Jennifer Astle squatted in Tim’s house until at least June 10, 2009, and the last day she paid any rent was February 24, 2009.  This was not noted, much less considered suspicious at any time by investigators or later prosecutors.

5.  At no point from the accusation to the arrest did the investigative team take any precautions to avoid possible tunnel vision in this particular case.  There is no “innocent until proven guilty” here.  The allegations were made, aggressive psychological torture produced a statement the detective could temporarily call an admission, and at no point was the primary accuser investigated for any possible motive to make a false allegation.

The Arrest Warrant

On March 25, 2009, in order to get a judge to sign an arrest warrant on Tim, Detective Ginger Fitting created an incriminating story out of re-ordered and re-purposed snippets of the Secretly Recorded Phone Call, not noting that he had denied allegations over 60 times, or that his admission was qualified by the fact that he only believes it happened if he was asleep at the time and wasn’t sure it actually happened.

The judge only heard the statement of Ginger Fitting, and it only took this affidavit of complaint signed by Fitting to serve an arrest warrant on Tim.  The statement in its entirety:

“Your affiant (Ginger Fitting) has probable cause to believe that the defendant, Timothy P. Guilfoy, did have unlawful sexual penetration of a victim by a defendant or the defendant by a victim, and the victim is more than three years of age but less than thirteen years of age.  Probable cause is as follows; the victim who at the time 9 years old female disclosed that the defendant was sleeping in her bed, and he began to rub her back, then stuck his finger in her vagina during October 2008.  The defendant admitted to the victims mother that he was sleeping in the same bed with the victim while the mother was out of town.  The defendant stated that he was asleep, when he woke up to the victim was on top of him.  He stated that he did have an erection, “Because guys get turned on like a light switch,” and his hand was in the victim’s pants.  When asked if his finger went inside the victim he stated that it was a possibility, and again stated that yes that could have happened.  He also stated several times during the conversation that the victims were not lying, that they were telling the truth.  He then tells the victim’s mother sorry, but he stated the he “is not sorry for forgiveness, but sorry that this ever happened.”  This offense did occur in Montgomery County Tennessee.  [Signed Ginger Fitting]”

Tim’s actual words about this story was that he went to bed alone, always slept on his back, and woke up in the middle of the night in a state of confusion to find the girl sitting on top of him.  He said the only way this could have happened was in his sleep, and under heavy duress gave Jennifer a story of how it might have happened while he was still half-asleep.  In the haze of him waking up he doesn’t know if he might have thought he was somewhere else with a full-grown woman, might have had an erection simply from sleeping that he didn’t have control over and might have touched her on the rear end with one of his fingers perhaps underneath the edge of her clothing bottoms.  When he realized it was the child, he threw her off of him non-violently but felt uncomfortable about the whole situation.  He said it was possible that he touched her private area, but that he isn’t certain of any of it because he was sleeping and confused at the time.  He was apologizing to Jennifer that the pushing incident happened and that he never brought it to her attention, not that he raped her child.  The “light-switch” comment came from an exchange much earlier in the series of phone calls when Tim was confirming that non-sexual morning erections happen and he has in general had them.  Fitting completely and intentionally repurposed Tim’s statements to make it look like Tim confessed in a narrative.

At the apex of the Secretly Recorded Phone Calls, Jennifer and Fitting had gaslit him on the phone for over three hours interrogating him. Tim is freaked out, crying, scared that he was mentally ill and questioning reality.  He is not thinking clearly and has been threatened over and over that if he didn’t say exactly the words (confessions) Jen was feeding him that she would call the police (which he told her she should).  At that point in the phone calls, Jen and by proxy Fitting got “possibility-happy.”  Was it possible that his finger went in?  Was it possible that the kids’ stories were all true?  Was it possible that Tim did it and couldn’t remember he had done it?  Frustrated, tired, and scared, Tim said sure, these things were possible.  But he didn’t think they happened. Suggestions were made by Jen and by proxy Fitting that Tim had done these things in his sleep.  Tim was trying to reconcile in his mind how these people he trusted were telling him he did things he did not remember doing.  His main concern for the entirety of the phone conversation is that the girls are not told they did anything wrong or are lying because he thought someone, though certainly not him, had molested them and they were holding him as a placeholder for the true perpetrator.  In that blinding concern, and after the hours of psychological torture he endured, and after repeated assurances from someone at that point he trusted that it was only to tell the girls they weren’t liars, he told Jen what she wanted him to say: that he thought it was possible his finger went in.  Nevertheless, he denied the allegations over 60 times and got Jennifer to admit that he had talked to her earlier about his preference that the girls do not join him in the bed when he visited.

This call, which was the furthest thing from impartial, was the only investigation done into Tim’s side of the story.  His “side of the story” was believed by the police only after the accuser/interrogator lied to Tim, threatened him, made promises to him, and completely tortured him with the fervent assistance of the police investigator.  Fitting didn’t believe his 60 plus denials, just his one statement said with multiple conditionals. How is this supposed to be fact-finding?

Based on Fitting’s doctored testimony, Tim was charged with one count of Rape of Child.  The bond was set for $250,000 for this warrant, and Tim was picked up the same night.  This charge had to be dropped because of the inability of Ginger Fitting to support these claims with actual testimony from the Secretly Recorded Phone Call in front of a grand jury.  Notably, what was characterized as the admission at this point in the investigation was later characterized as categorically NOT a legal admission by the Davidson County prosecutor.  It never held up in court.

Instead, while Tim was sitting in jail on this warrant, she then went back and drew 14 charges from the transcript of the girls’ forensic interviews split over two counties, which evolved into the actual charges Tim faced at at trial. Fitting arrested Tim with evidence she crafted to put him immediately in jail as per Jennifer Astle’s wishes, also buying herself some time to charge him with more crimes based on the results of those interviews instead of her invented narrative.  This is what testilying is. Fitting abandoned investigative integrity to hastily put an innocent man in jail.

Physicals

Though the allegations were less than 72 hours previous to the 911 call, no physicals were done on the girls until over a month later. Though Fitting attempted to get Tim to admit the possibility he impregnated one of the girls, none of the girls were given a pregnancy test just in case that were true. The physicals were done over three weeks after the indictment against Tim was secured.  All physicals (Child 1, Child 2, Child 3) reported no sign of sexual contact or other physical harm.  No DNA was collected at the physical, since a month later none would have existed.  No one, not the mother, or the police, or the child advocacy center, showed interest in having the girls examined right away.  Most importantly, Tim was charged and the investigation considered complete BEFORE the physicals were done.

Investigation in Nashville (Davidson County)

During the Clarksville investigation, the Nashville jurisdiction was notified that allegations were made in that county (Davidson).  All of the information in the Nashville investigation was provided by the Clarksville Police Department from Detective Fitting. The only additional investigation the detective in Nashville did to corroborate the allegations was to accept the Clarksville PD file, and allegedly talk to the primary accuser, Jen Astle, on the phone, although there is no written report of that conversation. He did not talk to the children or any of the other witnesses or experts in this case. There was no attempt to go to the crime scene or investigate any false motive for these allegations.  No law enforcement from Nashville ever documented actually visiting the Nashville house where the abuse was alleged to have occurred and “Grampa Brian” still lived.  No photographs.  No forensic testing.  They didn’t even take their own picture of the house to make sure it actually existed, but pulled an image of the house from the internet for their case file, which we’ve only heard about.  The detective from Nashville, who hadn’t even met the accusers or the accused, was the only testifying witness at the grand jury in Nashville, and did not even show up to the trial in Nashville where Tim was convicted and sentenced to 70 years in prison.  In short, there was NO INVESTIGATION in Nashville whatsoever, and especially no attempt to seek the veracity of the allegations through investigation into Jennifer Astle.

Why didn’t Tim just TELL the police and CPIT about the financial motives for his setup by Jennifer Astle?

It may seem as though a simple fix to all of these holes would have been for Tim to contact the police department or CPIT himself with the information that Jennifer had financial motive to set him up and the proof of that claim.  Tim could not do this for two main reasons: One, from the beginning to the end of the investigation Tim was either not aware of being investigated, or was incarcerated and didn’t have the liberty or resources to force his case into the view of investigators.  Two, when Tim was both in and out of jail, his lawyer advised him not to talk to the police or the prosecution because these particular actors of the State would not drop the charges just because he was innocent.  Both Det. Ginger Fittings and DA Art Bieber verbally told our lawyer they absolutely believed Jennifer and the girls and anything Tim would say would be an excuse of a guilty man.  Also, Fitting had botched the case she had before Tim’s so she was not going to bend for anything less than what she considered a victory–his conviction.  The only options Tim had was to take a plea or prepare for trial.

 

NEXT: Okay, I have questions…