Inherent Incredibility Doctrine Applied In D.C.

The District of Columbia Court of Appeals reversed a second-degree child cruelty conviction through applicable of the so-called “inherent incredibility” doctrine.

Appellant‘s conviction stems from an incident at the home of his sister, Donna Robinson, and her husband, Ellsworth Robinson. Appellant‘s wife, Louisetta Koh, lived in the Robinson home along with her two children, a six-year old daughter and a 16-month-old son. Appellant is the biological father of the younger child. On October 26, 2013, after appellant had brought the children back to Koh after their visit with appellant, an argument between Koh and appellant ensued when Koh informed appellant that she had made arrangements to take both children to North Carolina the next day. Appellant said that he would not allow Koh to take his son. When Ms. Robinson saw that appellant and Koh were “tussling,” Ms. Robinson told appellant to leave, but appellant refused and (the trial court found) shoved Robinson aside. The bulk of the testimony at trial was focused on what occurred afterwards, when appellant walked over and picked up his son, who was seated in a highchair.

The case involves a rare occurrence – the court overturning a bench trial conviction on grounds of insufficient evidence.

Senior Judge Ferren dissented

The majority‘s decision to reverse appellant‘s conviction for attempted second-degree cruelty to children1 marks the first time in over five decades that the doctrine of “inherent incredibility” has been used to set aside a criminal conviction in the District of Columbia. Indeed, this is the first time that this court has applied the doctrine since we became the final authority over District law after court reorganization in the early 1970s. I believe that the doctrine ill fits this record, and therefore I dissent, respectfully…

I believe it is important to emphasize what my colleagues do not deny, namely, that there can be a grave risk of bodily injury to a toddler who is strapped into a high chair, picked up and gripped tightly by his father, then flipped over backward onto a couch on top of the child’s mother, with the father’s weight on the child-in-chair for an extended period of time while the mother wriggles away and family members try – then the police use force – to make the father let go. The question here, therefore, is limited to whether there was credible evidence that appellant‘s grip was tight enough, his weight heavy enough, and his resistance long enough to have created that grave risk…

I believe that the trial court, in crediting testimony from Ms. Robinson and Officers Keenan and Rodd (while discounting the testimony of appellant, Mr. Robinson, and Ms. Koh) did not engage in “mere speculation,” as my colleagues put it, to convict appellant of attempted second-degree child cruelty. The majority‘s two examples of “inherent incredibility” – Ms. Robinson’s testimony regarding appellant’s “tight grip” and “weight on baby” – fail to satisfy the statutory and case law criteria essential to withholding deference to the trial court‘s findings in a bench trial. That testimony is not inherently incredible based on alleged inconsistency or on alleged mitigation of the risk by the high chair or by the couch (a posture argument not raised at trial).

The majority opinion is authored by Associate Judge Thompson joined by Associate Judge Easterly. (Mike Frisch)