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Monday, 06 January 2020 01:04

The Incredible Kid

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The following article is by David James Pearce, who blogs at Unfortunate Opinions, and it is reproduced here with permission of the author.


Just how ‘credible’ was The Kid’s testimony against Pell? [What follows is hard-going but I recommend you read it all and get to the end. The truth is revealed.]

I’ve been poring over the publicly available information on the Pell case. There is the transcript of the appeal verdict, Pell v The Queen [2019] VSCA 186 (21 August 2019). There is the less reliable book by Louise Milligan. There are news reports from the committal hearing, but there is no direct testimony, as the transcript of the trial is not available. The appeal verdict is the most useful, since it contains actual and paraphrased evidence on the most contentious aspects of the testimony. [Note that direct quotes from the appeal judgement will be in parentheses, have a paragraph number and be in italics – any added emphasis is mine.]

The credible witness

You will already know that the appeal majority found the complainant (The Kid) credible. They said his credibility was enhanced by the fact that he did not embellish certain parts of his testimony, e.g. (77 A further indication of A’s credibility, in our view, was his admitted uncertainty about a number of matters which, if the story had been invented or was an entrenched fantasy, he might have been expected to describe with confidence. Striking examples of this were: his uncertainty about whether Cardinal Pell closed the door in the first incident; his lack of recall as to whether he had screamed or called out during the first incident; and his uncertainty about which hand Cardinal Pell had used in the second incident.)

The naive appeal judges

The extent to which the two appeal judges went to ‘build up’ the prosecution case is quite shameless. Consider this: (96 More striking still was the fact that A identified the Priests’ Sacristy as the setting. At all other times, Cardinal Pell would have robed — and disrobed — in the Archbishop’s Sacristy. Exceptionally, however, that Sacristy was temporarily unavailable at the end of 1996 because its furniture was under repair. As a result, Cardinal Pell was — at the time of the alleged offending — having to use the Priests’ Sacristy to disrobe after Mass.) Can you see the logical error? They are attributing credibility to the witness for some sophisticated knowledge of the cathedral that very few would be party to. Did the complainant make this distinction during his evidence? I don’t think so. His experience within the cathedral during internal processions was that they always ended at the priests’ sacristy. The fact that Pell might at a different time have continued on to disrobe in the Archbishop’s sacristy would not have been known to The Kid in any case. It actually was just bad luck for Pell that the Archbishop’s sacristy was unavailable in 1996.

This naivety continues with this passage (97 In our view, the jury were entitled to view these ‘undisputed facts’ as independent confirmation of A’s account of having been in the Priests’ Sacristy in that period. There was nothing to suggest that his knowledge of those matters could have been obtained otherwise. A’s evidence was that he had never been in the Priests’ Sacristy before. In cross-examination, he accepted, but did not recall, that he had been taken on a tour of the Cathedral when he first joined the choir. He said that he had no recollection of being shown the sacristies on such a tour, but did not dispute it. The jury were entitled, in our view, to discount the possibility that going on such a tour would have explained A’s detailed knowledge — and recollection 20 years later — of the interior of that particular room.) More on this later. Just three comments: 1. Earlier they said lack of detailed recollection enhanced his credibility, but here the unreasonably detailed recollection of the priests’ sacristy also enhances it; 2. The second point is that they ignore the fact that other opportunities to gain this knowledge were available continuously, right up to 2015; 3. You could also ask the simple question, ‘why would the tour not have provided detailed knowledge just as well as the boys’ escapade?’ Why were the jury entitled to discount the possibility that going on such a tour would have explained A’s detailed knowledge? Here, the judges made a totally unreasonable conclusion since the tour would have been for the precise purpose of imparting knowledge. It is completely cynical and prejudicial of them to say that a school tour of the cathedral would not impart knowledge, while two naughty boys on an escapade would gain that knowledge. It is exasperating to read such condescending and illogical argument. Worse that people have accepted this.

The unreliable witness

The Kid’s presentation of evidence was very good, we learn. He did not, we are told, try to embellish (87 … because of the complete absence of any indication of contrivance … .) (90 Directly addressing the falsity contention, senior counsel for the Crown opened his oral submissions by asserting that A ‘was a very compelling witness. He was clearly not a liar. He was not a fantasist. He was a witness of truth.’)

The above assessment by the prosecutor and two majority appeal judges (it’s hard to separate them) would mean that he didn’t try to cover up when confronted by issues with his evidence. So his evidence must have been very consistent, mustn’t it? Um … I think you’d have to say, ‘not really.’ If his evidence was so ‘credible’, how was it shown to be wrong, over and over and why did he change his testimony on many occasions? In the judges words, ‘credibility’ is related to demeanour, not facts. It is the concept of ‘reliability’ that covers omissions and inconsistencies. (53 The critical issue in this trial was whether A’s evidence was credible and reliable. As the judge told the jury in his charge: In order to convict you must be satisfied beyond reasonable doubt that [A’s] account is true. That is, that the offences, as described by him, actually happened. To assist the jury in assessing the evidence, his Honour explained the difference between credibility and reliability: Broadly speaking, credibility concerns honesty; is the witness telling the truth; and reliability is different. The witness may be honest, but have a poor memory, or indeed be mistaken. So there are those two aspects to a witness’ evidence, and I am sure that corresponds with your day-to-day experience in life in judging people.)

However, I ask, mustn’t reliability and credibility cross over at some point? At that point we must say that while the person’s demeanour is compelling, what he is saying is patently false. When the bulk of what he says is proven false against verifiable facts, or contradicted by the reliable testimony of multiple witnesses, then credibility based on demeanour must eventually be entirely eroded. Below, we will look at some of the various inconsistencies in The Kid’s testimony in respect to where, when, how and what he said happened and how that was shown to be wrong.

What he claimed he couldn’t remember and what he could remember which was false.

He couldn’t remember which colour or type of vestments Pell was wearing, (331 In re-examination, the following exchange took place: Q: Very well. Now, are you able to — as best you recall … at the time of the first incident, describe the robes being worn by Archbishop Pell? A: I can only describe them as being robes. Um, I, I couldn’t pay attention to what was on the robes — what they were made out of, what they were, how they were exactly being worn before the incident. Um, I didn’t have time to concentrate on the fabrics. I, I was obviously being distracted by the incident and I wasn’t able to quite see the makeup of the robes.) His head was a few inches from ‘the fabrics’ for several minutes during the most traumatic moment of his life, but he can’t recall. Fair enough. Honest mistake.

He got the wine colour wrong (431 When ‘poking’ through a cupboard, the boys found some wine in a ‘… dark brown stained bottle.’ The wine was red or ‘burgundy’ coloured, and it was a ‘sweet red wine.’)(827 As previously indicated, the complainant said that the wine that the boys had ‘swigged’ was red. The transcript reads as follows: COMPLAINANT: Yes, I, I saw it was red wine. It was red wine.) (828 A number of witnesses gave evidence that Dean McCarthy never used red wine during any of the Masses that were held in 1996 or 1997. For health reasons, he insisted that white sacramental wine only be used.) Fair enough. Another honest mistake.

Yet despite these memory/concentration lapses, the complainant was able to give detailed evidence about the layout of the sacristy that was repeated by the appeal judges thus, (44 …A and B made their way to an alcove in the corner (described as a wood-panelled area resembling a storage kitchenette with cupboards) which was a little bit concealed.” “430 The complainant said that immediately to the left, after entering the sacristy, there was ‘a wooden panelled area … resembling … a storage kitchenette … ’ The double doors to the sacristy were ‘… unlocked, perhaps ajar’, with ‘… one door bolted closed and the other one able to be opened.’) Now, that’s really weird. The memory of what Pell was wearing has completely evaporated; he got the wine colour positively wrong; but he remembers the layout of the kitchenette area so clearly and in such detail that it feels like he’d seen it quite recently! Hmm? I wonder?

The prosecution relies on this memory, but it turns out that his memory was wrong, after all. (59  Thus, the Crown points to aspects of A’s account of the first incident as being consistent with undisputed facts about the layout and furnishing of the Priests’ Sacristy at the relevant time. A’s knowledge of such details is said to confirm the truth of his statement that he was there when the alleged offending took place. Reliance is also placed on what could be gathered from ‘observation of the witness’.) The appeal judges were likewise impressed by his accuracy in describing the sacristy (95 … the credibility of his account was considerably enhanced by the accuracy of his description of the Priests’ Sacristy. He was able to describe in some detail the layout and furnishing of the alcove …) and many people today use this as strong support for his story. Then we find… (834 In his recorded walk-through at the Cathedral, which was played to the jury, he said that the appearance of the sacristy was ‘unchanged.’ ) (835 However, Potter gave unchallenged evidence to the effect that the entire kitchen area that could now be seen in the Priests’ Sacristy had only been installed in about 2003 or 2004.“) What?!

So the value of this evidence is completely misinterpreted. What was adjudged to be in support of the complainant’s case, actually nullified it. It did, in fact, prove that he was lying. To be familiar with the layout of the sacristy as it was in 2015 proved that he had seen and described the sacristy after the 2004 renovations of the kitchen area.

Despite this, (838 Mr Boyce … contended that the complainant’s ability to give the police a broadly accurate description of the layout of the Priests’ Sacristy, when he first spoke to them in 2015, provided at least some support for his account of the first incident.) It was this assertion by Boyce, contradicted by evidence, that made it into the news reports, and is still repeated by people today.

This mistake was a key part of the prosecution case. (908 The one matter upon which Mr Boyce particularly relied in support of the complainant’s account concerned the evidence given by Detective Reed. He spoke of the complainant’s knowledge, when he first approached the police, of the general layout of the Priests’ Sacristy. In that regard, Mr Boyce noted that the complainant’s evidence, at trial, had been that he had never been in the Priests’ Sacristy prior to the date of the first incident, or indeed since. He posed the rhetorical question, how then could the complainant have gained that knowledge of the layout of the sacristy?)

The prosecution led the jury to believe that two choirboys were able to make their way unnoticed into the sacristy in 1996 (and one of them remembered the layout in perfect detail nineteen years later.) They say knowledge of such details is said to confirm the truth of his statement that he was there when the alleged offending took place. The two appeal judges back this up to the hilt. However, no such conclusion is reasonable because his details are of the present-day sacristy layout. Besides, the complainant didn’t live on another planet, the cathedral is just 35 minutes on public transport from where he lived. Learning the layout of the sacristy could have occurred at any time, by any means in the intervening period. Why should the jury accept that the two children could have entered the sacristy unnoticed to have a ‘look around’ in 1996, but ignore the possibility that this could be achieved by a grown man in the years after? “How then could the complainant have gained that knowledge?” Quite easily. In fact, it would have been far easier for the complainant, as an adult, to have a peek inside the sacristy.

What about Milligan’s book? Does that back up his testimony?

There is another source of information, which is Milligan’s book. In that, The Kid told The Choirboy’s mother about what the two boys used to do. “He told me that himself and [my son] used to play in the back of the Church in the closed-off rooms.” Hold on, he told the jury he only saw the sacristy once. (428 The complainant then said that the two boys had re-entered the Cathedral … having gone into the Priests’ Sacristy and ‘having [had] a look around.’ He said that he had not been into that room previously.)

A map of the cathedral from the trial shows that Milligan’s ‘closed-off rooms’ must have been a reference to the sacristies – there are no other rooms. The phrase ‘used to’ indicates ‘often’ or at least ‘more than once’. There is a significant discrepancy between what he told the other choirboy’s mother and his sworn testimony. Why would he have misled her? Why would he make up a tale about doing something habitually when he later said under oath that it happened only once?

Does any key part of his testimony fit with facts?

Then there is the question of the changing dates. It’s obvious that The Kid never intended that the first incident occurred just before Christmas 1996. (212 According to the first police statement, the first incident had occurred ‘probably around spring, a few months into Archbishop Pell’s tenure’. When asked by defence counsel how long before Christmas the first incident had occurred, A said he could not recall. Asked to ‘just give us an idea’, he said: It was towards um, ah, the second half of that half of the year, but I can’t give you any um, exact times or dates.)

Previously, he had even changed the year in which the incidents took place, (666 From the time that the complainant first spoke with police in 2015, he was adamant that both the first and second incidents took place in the very same choral year. Initially, he said, mistakenly, that the year was 1997. However, when prompted by Detective Reed, who had carried out his own enquiries, he corrected that year to 1996.) When it was later established that the first event could only have been on either 15 or 22 December 1996, the second incident could only have occurred in 1997 and more than two months after the first incident.

So the three elements of the timing were wrong – it was not Spring, the two events were not about a month apart and they were not in the same choral year. The first incident was actually just before Christmas, so how on earth could he have forgotten that? The key attributes of the timing, even his vaguest recollections of dates, were all shown to be false and required adjustment.

Weinberg noted, (405 From a defence perspective, if those dates could be so identified, the complainant’s account that both the first and second incidents took place before Christmas 1996, but ‘just over a month apart’, would necessarily be shown to be unreliable. In addition, there was a substantial body of evidence, to which I shall later refer, which was capable of being specifically linked to those two dates, that would tend to undermine the prosecution case.)

How did the boys get away from the procession?

Leaving the procession unnoticed was one of the many obstacles that the defence put forward, listed here. (841 The matters relied upon by Mr Richter in support of that ‘compounding improbabilities’ submission were: The applicant does not remain on the front steps. He is alone when he enters the priest’s sacristy. Portelli does not enter to help the applicant disrobe, or to disrobe himself. Potter is not there to assist in the disrobing. Potter is not moving between the sanctuary and the Priests’ Sacristy. The altar servers are not moving between the sanctuary and the priests’ Sacristy. There are no concelebrant priests in the Priests’ Sacristy, or for some reason, they do not disrobe. 40 people, some of whom are adults, do not notice the complainant and the other boy break away from the procession. The complainant and the other boy enter the choir room, having gone through two locked doors, without anyone having noticed; and the complainant and the other boy enter a choir rehearsal which they were required to attend, after being missing for more than 10 minutes, without anyone having noticed.)

(313 On the question whether it was possible for two choristers to have left the procession unnoticed, Mr Dearing’s answer in examination in chief was: It would be — unnoticed, no, I don’t think so. Not with ten or so adults at the back, observing, being able to see in front of them. Now the choir dress is very distinctive, you’d notice two boys running off and — if they were running off with — with their robes on, you’d very quickly notice them.)

(316 In examination in chief, Rodney Dearing was asked about ‘the state of orderliness or formality’ in the external procession. He said: even though they were young boys, some of them were young boys, order and discipline was required because they were sort of the face of the Cathedral in some respects, so that mucking up wasn’t tolerated.)

(317 … Q: There would be serious consequences for choristers who even attempted to run off from the procession back into the Cathedral without permission? A: Yes.)

(323 After he had finished playing the postlude, the books and music had to be packed away in a cupboard. Cox was asked whether, had he been standing at that cupboard, he would have noticed if one or two choirboys ran past. He answered, ‘Oh that would be most unusual’. It had never happened as far as he knew and he agreed that, if it had happened, it would have drawn attention.)

(312 …Q: It would have been a pretty serious breach of discipline, wouldn’t it, to run off from that line or walk off from that line? A: There would have been some — something said, yeah. Q: You never heard anyone talking about having seen choristers nicking off from that line? A: Not that I can recall.)

( 539 David Dearing said that during the course of an external procession, there was an orderly and disciplined line under the close supervision of Finnigan, who was a stickler for making sure that the choristers were properly behaved. He never saw any of the choristers deviate from the line. If they had done so, something would have been said. This was particularly important while the choir was in public view. Discipline would be maintained until the choir reached the toilet corridor, and went past the steel gate.)

(583 In cross-examination, Bonomy had no doubt that if a couple of young boys in front of him had decided to ‘buzz off’, he would have seen that happen. He had never heard of any such thing having occurred, and it would be a serious disciplinary offence if it did.)

So forty people would have seen the boys leave the procession, four witnesses testified that they had never witnessed anything like that. Surely The Kid has a clever explanation. What does he say? (217 just we sort of broke away from the main choir group. Um, it was sort of scattered and a bit chaotic as a bunch of kids are, I suppose, after a Mass. And we managed to separate ourselves from that group. … I don’t recall specifically when we broke away.) To make up the deficit, the appeal judges help out here by saying, (220 ‘What does it matter how I got there? What matters to me is what happened when I got there.’ )

In the appeal judges opinion, apparently, the contradiction in the testimony is not of consequence. You might wonder what, in their opinion, is the purpose of the witnesses?

Pell’s robes

This is everybody’s favourite topic. How does The Kid explain how his testimony that Pell pulled his robes aside, when that was shown not to be possible? As Potter, the Sacristan who attended to robing the priests and bishops said so eloquently, (514 it’s inhumanly impossible because the alb is tied with a cincture and locked in and it can’t be moved. The cincture ties around his waist, and then with the cincture then a stole is placed over — in that area as well, and no way could the alb be moved in that area … So it’d be impossible because the size of the pockets are small and once the chasuble’s on as well … the chasuble covers everything, and there’s no way then could he move around with his hands in his pocket or in that area at all.)

The Kid’s view was much simpler. (205 … concerned Cardinal Pell’s movement of his robes during the first incident. In his first police statement, A had said that Cardinal Pell ‘was wearing robes and he moved them to the side and exposed his penis’. Under cross-examination at the committal, A said that Pell had ‘pulled aside his robe … and he pulled out his penis’. When asked then whether Pell had pants underneath his robes, A answered: ‘I’m not too sure’.)

At the trial (817 MR RICHTER: Did you refer at committal to his undoing any pants? COMPLAINANT: Um, yes. MR RICHTER: Where? What did you say? COMPLAINANT: Sorry? That he loosened — just — just what has been read. I said that it seemed like he was unfastening himself in that area, um, or unbuckling something. MR RICHTER: You didn’t – – -? COMPLAINANT: And I said it was his pants. MR RICHTER: Did you refer to unbuckling something, did you? COMPLAINANT: No. I — I was — the whole reason I was talking about that area was he was adjusting something in that area, and, um – – -)

Earlier. (206 … A responded: He could push aside his robes. He did push aside his robes. … He created an opening by opening his robes.)

When finally made to admit that was actually impossible – (438 When shown one of the Archbishop’s vestments, the alb, which plainly went all the way down to the ground, and clearly could not be ‘parted’ in any sense, the complainant proffered the suggestion that perhaps ‘you can pull it [the alb] up first.’ When confronted with the discrepancy between that suggestion, and the evidence that he had previously given regarding this matter, the complainant explained that the applicant had ‘pulled [the robes] to reveal his penis, however way that was: up, across, down, right, left. He pulled it aside to reveal his penis.’ ) He not only changed his testimony in respect to the trousers and ‘pulling aside’, but he tried to redefine the meaning of ‘aside.’

What did the appeal judges say? (146 In final address, the prosecutor invited the jury to feel the weight of the alb and ‘assess its manoeuvrability as a garment’. This gave the jury the opportunity, counsel submitted, ‘to assess whether what [A] described as having occurred is physically possible or impossible.’ Having taken advantage of that opportunity ourselves, we consider that it was well open to the jury to reject the contention of physical impossibility.[98] The alb was neither so heavy nor so immovable as the evidence of Portelli and Potter had suggested. To our observation, it was well capable of being manoeuvred — while the cincture was firmly tied at the waist — in a way that might be described as being moved or pulled to one side or pulled apart.) Here, the two appeal judges reveal their hand – they are not interested in considering evidence fairly. They repeat a claim that even The Kid had conceded. Weinberg at at para 438 says, “the alb…clearly could not be ‘parted’ in any sense“, but the majority persist in upholding what has already been disproved. The alb would have to have been pulled up. As the witness himself eventually conceded, “you can pull it [the alb] up first.” Pulling up the vestments would necessarily have revealed that Pell was wearing trousers, a fact that The Kid said he did not know. While the nature of the vestments may not have made the abuse impossible, it did totally contradict what The Kid had told the police, what he told the magistrate at committal and what he repeated at the trial about Pell parting his vestments.

After the sacristy

The Kid had originally testified that he had gone straight home after the first incident, but evidence was presented that there was choir practice after mass on those days. (223 He accepted that Mr Finnigan conducted such rehearsals ‘as though they were military exercises’ and would take note of people who failed to attend. It was then put to him that his description of what happened was ‘just impossible’. A denied that. When asked why it was not impossible, he responded: Because I was orally raped in a … room after Mass. Asked again, he responded: Because I was assaulted in a room after Mass and that’s why I’m here.)

The Kid didn’t have much luck. Every time he gave specific evidence about a fact that could be checked, he was either dead wrong, or had several witnesses contradicting him. However, that only seemed to have added to his ‘credibility.’

What about the second ‘victim’?

The Kid’s story includes a second victim, who adds gravitas to his claims through his ‘wasted life’ that is attributed to his trauma in the sacristy. By including him The Kid captures public sympathy and added credibility. That young man died of a drug overdose and it was only after his funeral that The Kid came forward. Surely, there is some evidence from the actions or words of that young man to support what The Kid says? Again, no luck. Milligan’s book tell us that the mother and the father of that boy had both explored the possibility that the boy’s decline into addiction may have been the result of some abuse while at school. In each case, the other choirboy had denied it. There may have been another reason. Perhaps it was the breakup of his parents’ marriage or shame about his father’s strange proclivities that led to his drug experiments. We’ll never know.

Why have the second incident?

There is another big query about The Kid’s evidence. Why would he even mention the second incident at all? The second incident involved Pell leaving his place in the procession and making his way to the front of the procession and pushing The Kid against the wall and grabbing him by the genitals. Extremely odd behaviour that was not likely to go unnoticed. Then The Kid changed his evidence to say it may not have been a procession. The second incident, while serious enough, I suppose, was quite trivial in comparison with a horrific oral rape lasting for several minutes. It didn’t lend credibility to his testimony, quite the opposite. The second incident was so implausible that it would undermine his credibility. Weinberg noted, “The complainant’s allegations against the applicant were, to one degree or another, implausible. In the case of the second incident, even that is an understatement.” So, why even mention it? The police would also have been able to judge that the second incident added very little to their case, so why even prosecute it? I feel that I know why. As I said in a prior blog, the ‘nutcracker’ incident was there to draw a direct connection between these two Cathedral episodes and the Scott/Philip Island incident (c. 1962) which had a tale of an (uncorroborated) identical exploit on Pell’s part. Milligan uses this in her book, and it is often encountered on Twitter, as proof of ‘a pattern’. Since there was no advantage for The Kid, this second incident raises the question of whether someone else was involved in developing the two scenarios. That other person was trying to link or reconcile the Cathedral trial to ‘a pattern.’ In that respect, it has served its purpose.

The Kid was always wrong

The Kid got the year wrong. He got the season wrong. He got the description of the sacristy right, but described it as it appears now, not in 1996. He was proved wrong with how he said he got there, with the robes, with how Pell revealed his penis, with the wine colour, with the trousers and what happened after the first incident. There was shown to be no likelihood that the boys could have accessed the sacristy the way he said they did, and no way that Pell could have got to the sacristy when he said he did. In each case where he wasn’t vague or evasive, he was wrong. He changed his committal evidence substantially at trial. In some cases he just kept saying black was white, or resorted to petulant defiance.

But, he had this sort of, you know, ‘credibility’.

How about his descriptions of himself?

There are other contradictions. Compare these quotes:

  • (92 … as a 12-year-old boy, … I was looking at the sheet music, I was trying to adhere to a pretty strict regime as a choirboy. I was trying to do my best job as a choirboy and I knew then that just like any other pursuit like this, it was ah, quite serious on my performance and my behaviour mattered a lot. So, I was more focused on being um, doing the right thing as a choirboy than looking at how individuals looked up on the altar. The only time I really had time to focus was when a horrible incident happened to me and I, I can remember quite a bit about that.)
  • The ABC reported (The former choirboy said they “were being naughty kids having a look around” when they came across a bottle of altar wine and started having a few swigs.)

It seems he can’t even recall what sort of child he was. My money is on the ‘naughty boy’ being the real Kid.

My unfortunate opinion

If we had the full transcript of the trial I’m sure we could find even more contradictions and omissions, all apparently adding mightily to his ‘credibility’ – don’t let facts or other witnesses get in the way. In my opinion, all Australians, including true victims of clerical abuse, should be extremely angry that this sort of evidence has put an old man in prison. Our legal system should be ashamed that the appeal judges were wilfully blind to the contradictions and errors in this sole witness’s testimony and totally patronising and dismissive towards the witnesses who contradicted him. I predict that in the annals of Australian legal history, that the names Maxwell and Ferguson will become synonymous with poor legal judgement.

Postscript: How would you assess The Kid?

Where does The Kid feature on a chart like this? If you were to put a man in prison for six years, based on his testimony alone, and overriding many other witnesses, what colour would be appropriate? In the face of much contrary evidence and with the complete lack of corroborating evidence, I would need to rate The Kid in the top right-hand corner or adjacent. Even the appeal judges could not have rated his evidence better than pale green.