Charges reduced in alleged abuse case

Date: 2004-08-18

By TONYA SMITH-KING

TRENTON - A general sessions judge did not believe Tom and Debra Schmitz had "ill intent" or caused harm to a girl they're accused of holding down to lance a boil with a rusty box cutter.

Judge James Webb dismissed a felony charge against each of the Schmitzes on Tuesday pertaining to that accusation at their preliminary hearing in Gibson County General Sessions Court. Two other felony abuse charges had been reduced to misdemeanors before Tuesday's hearing.

In all, Webb sent four misdemeanor charges of child abuse and neglect to the grand jury, which meets next on Sept. 27. If convicted, the couple would face sentences of up to 11 months, 29 days for each count.

The four misdemeanors involve accusations that Debra Schmitz threw a "butter" knife at a 14-year-old girl, striking her in the shoulder; that she cut the girl's long hair to within 3 inches because the girl wouldn't reveal the name of a boy who'd given her a note; and that she told the girl to "dig her own grave." Tom Schmitz is charged with overhearing the latter comment and not doing anything about it.

The Department of Children Services removed 18 children from the Schmitzes' home in June, many of them special needs children, including the 14-year old girl who testified Tuesday. Tears occasionally streamed down the girl's face as she sat on the witness stand, her soft sniffles audible at times as she spoke in a voice barely above a whisper.

Defense attorneys had to pull up chairs next to the witness stand to hear the girl, who referred to Debra Schmitz as "Debbie" at times and as "Mom" at others. The couple stared intently during the testimony, occasionally whispering to their attorneys.

The girl testified that Debra sat on top of her on the bathroom floor while Tom lanced the boil. She said the procedure hurt but added she did not get an infection or have to go to a doctor. While Webb disapproved of the Schmitzes' actions, he didn't believe the incident amounted to child abuse because there was no injury.

The girl said her siblings later told her she should have gone to a doctor to have the procedure done. At one point when she was being cross-examined Tuesday about why she thought she needed to go to a doctor, she fired back with a response that drew some muffled laughter.

"Tom had one (a boil), and he went to the doctor and had surgery," the girl said. "Why didn't he have it done at home?"

Webb said the prosecution could still present the charges he dismissed to the grand jury.

The judge also took no action on a joint motion to have authorities return property seized from the Schmitzes' home. Elaine Todd with the District Attorney General's office said they were not finished with the evidence, that the investigation was ongoing and that other charges could be filed.

Webb did agree that there should be a deadline but believed it needed to be taken up with the circuit court judge.

Debra's attorney, Michael Robbins of Memphis, said after court that they could go ahead and present the motion to return the Schmitzes' property to the circuit court judge but wasn't sure if they would do that before the grand jury met.

Both Tom's attorney, Frank Deslauriers of Covington, and Robbins said they were pleased with the judge's decision to dismiss some of the charges.

Deslauriers said he wished Webb had dismissed both of Tom Schmitz's charges but added he was pleased that they'd gotten "some of the testimony down under oath" to point out what he believes to be "a lot of inconsistencies" in the accusations.

For instance, Tom Schmitz was first said only to have overheard Debra Schmitz tell the girl to dig her own grave, Deslauriers said. The girl testified Tuesday that he looked out on her at one point in the back yard to make sure she was digging it.

Robbins also pointed out during closing arguments that the girl testified that she did not actually see Debra throw what she described as a butter knife at her. She didn't recall seeing Debra's face, just her body in the doorway before the knife was thrown. The girl said Debra threw the knife after she called Debra a "pyscho." The girl said Debra was accusing some of children of things they didn't do.

The knife missed hitting her in the center of the chest because she moved, instead striking her right shoulder, the girl testified.

Todd was pleased with Webb's actions.

"We're satisfied with the outcome that we got here," Todd said. "We were also very pleased for" the girl who testified. "She had a really difficult day today, and I was very proud of how she handled herself."

The girl is staying with Sherry Dvorak, one of the nurses who has made abuse accusations against the Schmitzes. Dvorak was in court with the girl who testified and another child who was sworn in who had been expected to testify.

Dvorak believes Webb's decision "shows these kids aren't lying," she said.

"The judge believed them. She (Debra) isn't winning this game. The kids are now. The truth is coming out."

Dvorak has launched a blue ribbon campaign to counter the Schmitzes' yellow ribbon one. Blue ribbons were distributed outside court to people who wanted to wear them to show support for the kids. Supporters of Tom and Debra Schmitz and the Schmitzes themselves have been wearing yellow ribbons.

Robbins and Deslauriers pleaded with Webb in a hearing before the preliminary hearing to drop the charges against their clients. They argued that Tennessee law required injury to have a finding of abuse and that authorities have not indicated in any of the warrants that there were any injuries.

Todd argued that while the law requires an injury, it doesn't say it has to be a physical injury. Her argument was that the injury could just as well be mental or emotional, that the law doesn't specify which.

Still, defense attorneys argued that authorities didn't allege any type of injury, emotional or physical, in arrest warrants.

The defense attorneys asked the girl during their cross examination why she waited so long to tell someone about the accusations concerning the hair-cutting and knife-throwing incidents and the one where she was allegedly told to dig her own grave.

The girl said the incidents happened about a year ago and that she revealed them to Dvorak while spending a recent weekend at her house shortly before all the children were removed from the Schmitzes' Trenton area home.

The girl said she was scared.

Robbins also pointed out a letter the girl had written to her adoptive mom, Sharon Stepleton, in Baton Rouge, La., in February telling her how much she enjoyed being in the Schmitzes' home. The girl said the letter contained some lies about her liking it there because she knew Debra would read it.

Todd, the prosecutor, pointed out that Stepleton even testified that once when she called the girl that Debra was standing by her listening to their conversation.

Stepleton said she sent the girl to live with Debra because of numerous problems she had with her. She knew of Tom and Debra through an Internet group called "Disrupted Adoptions" and believed they could handle her better.

Stepleton accused the girl of telling more lies than the truth when she had her. She also said the girl would go into rages that would last 45 to 90 minutes and would bang her head on the walls. She also accused the girl of trying to stab an older sister twice.

She was planning to let Tom and Debra Schmitz adopt the girl.

Frank Deslauriers said after court that officials with the Department of Children Services had been going into the Schmitzes home for "well over two years." If they thought there was anything illegal going on, would they have placed a child in the home in February, he asked.

The DCS has confirmed it temporarily placed a child with the Schmitzes earlier this year. Deslauriers also said one of the nurses who has accused the Schmitzes of abuse had also placed one of her own children in the Schmitzes home for two to three weeks.

The court also heard testimony Tuesday from Perry Sharp, a child protective services investigator who kept records of interviews with the children.

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