Lawyers argue about what jurors should be told about Los Altos schoolyard attacks

The sign outside Loyola Elementary School. Post photo by Dave Price.

BY ALLISON LEVITSKY
Daily Post Staff Writer

Attorneys for the Los Altos School District want to banish the terms “sexual assault,” “sexual attack” and “attack” from the courtroom as jurors hear a lawsuit from the parents of a girl who was trapped behind a schoolyard shed, undressed and touched inappropriately by two classmates.

The girl’s parents sued the district in March 2017 after, on two separate occasions, two 8-year-old boys trapped the girl behind a schoolyard shed at Loyola Elementary School, pulled her shirt up and her pants down, touched her private parts with her hands and a stick, and poured dirt and mud down her pants.
The girl was 7 years old and in second grade at the time of the January 2016 assaults.

The five-day trial was scheduled to begin Monday (Oct. 15) morning in San Jose, but has not yet started. This morning (Oct. 17), attorneys for the girl and the district will discuss a possible settlement.

The girl’s parents, who are represented by San Diego attorney Patty Lewis and Long Beach attorney Joseph Low, demanded $5 million from the district on April 13. The district, which is represented by the San Francisco firm Dannis Woliver Kelly, offered the girl $40,000 on April 27.

The girl’s parents came back with a demand for $1 million on Aug. 20.

What should be kept from jury?

As both sides gear up for a potential trial, attorneys are duking it out in court over which words, facts and pieces of evidence should be kept from the jurors who hears the trial.

For the district, these include any reference to one of the boys’ reputation, prior behavior or disability. His parents filed a lawsuit against the district in April 2017, accusing the district of defaming and emotionally traumatizing their son by treating him like a criminal.

The boy is emotionally immature for his age and has autism and ADHD, hindering his ability to read social cues and respect others’ personal space. His parents claimed that the three kids were pulling down their pants to “moon” and “pants” each other in an inappropriate, but an innocent game.
The boy’s suit was dismissed in January in favor of mediation outside of court.

The girl’s attorneys have opposed the motion to keep the boy’s prior behavior, reputation and disability out of the courtroom, alleging that these facts show that the district had notice of his conduct.

The school district’s attorneys also want to exclude two emails that the girl’s parents sent to Palo Alto family therapist Cecilia Long last month expressing concern about their daughter’s sexualized behavior, including openness about nudity and inappropriately touching her grandmother, that they claim is a result of the assault.

Girl was recorded telling her story

The district also wants to keep the girl’s attorneys from playing a recorded FaceTime conversation from Jan. 28, 2016, in which the girl tells her father that earlier that day the two boys had pulled her pants down and her shirt up.

Attorneys for the district don’t want the jury to see evidence of the boys’ juvenile court proceedings, records and criminal charges.

After Los Altos police Officer Ryan Langone and Detective Sgt. Mark Bautista investigated the assault in January 2016, the boys were charged with false imprisonment and lewd and lascivious acts on a minor, both felonies.

The school district’s attorneys also don’t want the jury to see photos of the girl at age 7, around the time she was assaulted, which her attorneys say is important because if the girl testifies, the jury will be seeing her at age 10.

Attorneys for the district also want to prevent the girl’s attorneys from calling bullying and sexual violence expert witness Alan McEvoy to testify about the benefits of calling Child Protective Services first, rather than police, to report a child sex assault.

A school expert for the district, Trudy Arriaga, has testified that as a former principal, she would always call police over CPS because of the close relationship the schools have with the police.

Loyola Principal Kim Attell and Superintendent Jeff Baier called police, rather than CPS, after yard duty monitor Nimmi Rao told them about the assault.
The girl’s attorneys want to show the jury the girl’s out-of-court statements about the assault as evidence, including to Rao, Attell, Langone, Bautista and her father on FaceTime.

The girl has refused to discuss the facts of the assault in therapy, stating that she feels normal when she doesn’t talk about it.

Girl in therapy

But her attorneys want to tell the jury that starting in February 2016, in play therapy, the girl identified toys as “bad guys” who were attacking her family. Her therapist, Long, said this was an effort to make sense of the sex assault.

Her attorneys also want to prevent the jury from hearing anything about the girl’s father’s employment following a traumatic brain injury he suffered in a car crash, as well as any evidence about the girl’s parents 2012 divorce in Texas and subsequent custody disputes.

The girl’s mother moved the girl to Los Altos so the two could be near her own mother. After the girl was assaulted at school, her father requested the Santa Clara County Superior Court to enforce a joint custody order from Texas, where he was living.

Last year, the girl’s father was given sole legal and physical custody and the girl’s mother moved to the East Coast with her new husband.

Previous Post stories about this case

• Oct. 12 — Trial to begin in Loyola Elementary schoolyard attacks suit

• June 3 — Was it a sex assault or an innocent game among second-graders? Incident results in two lawsuits

3 Comments

  1. From this reporting it is apparent to me the school district’s attorneys are playing a “blame the victim, exonerate the perpetrators” game. They want relevant information about the boys withheld from the jurors and court; instead they want irrelevant information about the girl’s parents’ divorce, her father’s accident, etc. disclosed and part of trial. Does this make sense to you? Perhaps not, just as it did not to me either.

    No surprise this is happening in Los Altos. Far too many shenanigans in that City, not just in this matter but others notably by its staff and Council and City Attorney…and their days of reckoning are drawing near.

    As they say, hear hear hear the bells for they toll for you!

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