Hodges not guilty: Around 50 people gather to offer congratulations to defendant, family
By Colby Dunn
The atmosphere outside the Morgan County Courthouse was almost like an outdoor party Monday afternoon after a 12-person jury acquitted a Madison man of two child molestation charges.
Following a five-day trial and two-and-a-half hour jury deliberation, Foss Hodges, 39, received a not-guilty verdict on aggravated child molestation and child molestation charges relating to an incident in October 2007 when Hodges allegedly molested a 7-year-old girl at his home.
Much of the crowd seemed jubilant, despite the judge’s request for silence, and Judge Hugh Wingfield proffered a stern warning to Hodges before dismissing the court.
"We all know you did this," Wingfield told the defendant, "and I suspect a lot of this verdict had to do with [the child] rather than you. I'm telling you this because, when you leave here, I do not want you to feel smug or vindicated, because you're not."
Hodges' defense team, led by Doug Peters and Bob Rubin of Atlanta, spent the lion's share of the trial attempting to convince the jury that, while he did inappropriately touch the child on the night in question, that he was asleep and cannot, therefore, be held responsible.
"This is a case about a good man who did a bad act while he was asleep," Peters reiterated in his closing statements. "This is not a crime." They have maintained that both Hodges and the child have testified that he was asleep during the incident, and followed these testimonies with a barrage of costly expert witnesses who attested to their diagnoses of Hodges with a parasomnia with sexual behavior during sleep, popularly known as 'sexsomnia.'
Prosecutors contended with the assertions, and Assistant District Attorney Alison Burleson urged jurors to use "common sense" when evaluating the evidence, especially the sleep claims.
"The defense has said that the two people who were there say that he was asleep," she said. "Well, of course he's going to say he was asleep," she told jurors in her closing statement. Burleson was referencing testimony by state's witness Dr. Deloris Roys, a specialist in the field of sexual abuse as it applies to children, who testified that men commonly claim that they were asleep to escape molestation charges.
About the girl's testimony that Hodges was asleep, Burleson told jurors that "of course that's her perception. Why wouldn't that be her perception? That's what she's been told from the very, very beginning. From the first moment, you know she was told he was asleep."
The defense asked the jury to keep in mind the expert information presented in the case, especially the testimony from two sleep and sexual behavior specialists - one flown in from Canada - who evaluated the defendant and diagnosed him with the disorder, based on sleep studies and the anecdotes of friends, parents and Hodges' wife that illustrated his history of sleep-time exploits.
Dr. Paul Fedoroff, director of the Sexual Behaviors Clinic at the Royal Ottawa Mental Health Centre in Ottawa, Ontario, told the court that he believed Hodges to be asleep during the alleged incident. Fedoroff, by his own admission, coined the term 'sexsomnia' in a paper he co-authored on the subject.
When asked by attorneys how Hodges was unable to tell the difference between his wife's body and a small child's, Fedoroff replied "he was asleep."
"It's as simple as that?" asked Rubin.
"Yes," answered Fedoroff.
In their closing statements, however, prosecutors beseeched jurors to wade through the charts, numbers and academic experts to evaluate the facts on their own merits.
Burlseson said Hodges' statements regarding the incident indicated memory of two separate acts. "How does he remember doing both unless he was doing it intentionally? Does it make common sense that someone who knew - knew - that they had that [sleepwalking] issue would crawl into bed [with the child]?"
Rubin countered this argument for the defense, emphasizing the portion of the law that states action must be coupled with intent for a crime to be committed.
"Whether you think that he should have slept on the couch or on the twin bed [elsewhere in the house] or in his bedroom, if you believe that he was asleep at the time of the act, then it's an accident, there's no intent and he's not guilty," Rubin said.
After more than two hours of closing statements, the jury deliberated and returned their verdicts, which Rubin called "justice...done for the right reasons."
In his closing statement, District Attorney Fred Bright asked the jury to look with equanimity on what he called "a tough case."
"It does not matter to lady justice whether you live on Pearl St. or in the finest mansion in Morgan County," said Bright, "she sees you all the same."
The courtroom was packed with over 100 onlookers in the last hours of the trial, with a few standing along the back wall instead of in pews behind the prosecution.
"I think that this jury has spoken as the voice and conscience of the community, and that they returned a verdict that speaks the truth loud and clear," said Peters in the tumult that followed the court's final recess.
When asked for a response to the verdicts, Bright offered simply, "The jury has spoken and we accept their verdict."
Managing editor Kathryn Schiliro contributed to this report.
Printed in the September 3, 2009 edition.