REPRESSED MEMORY, ALLEGEDLY

Dahlia Lithwick of Slate has this column on whether a witness who tells you that s/he was molested years ago as a child but never mentioned it because the memory was "repressed" all this time and was only brought out during talk therapy or after hypnosis should be believed.

This is a subject of particular interest, as I've had occasion to deal with accusations so based, and have written about it in articles posted to this site on the character of memory.  Do our minds work like tape recorders, in which if you peel away some layer of emotion, and the memory is waiting there, intact, ready to be unfurled in all its living glory and oh, so reliable?  That's what believers in repressed memory want to believe, and want you to believe.

Or is memory more like reconstructing "My Fair Lady," long after the production has shut down and the props used elsewhere. 

Memory is more like reconstruction, where some of the parts are missing.  The left-brain's interpreter, according to Michael S. Gazzaniga, neuropsychologist, in The Mind's Past (U.C., 1998), fills in the missing pieces, making them up out of whole-cloth based on what is expected according to current need and belief.  All lies, in other words.

Allegedly "repressed" memory is based on the idea that if something terrible happens to you as a child, you are somehow able to patch it over and forget about it.  WWII concentration camp survivors would probably love to be able to do that.  With sex its somehow said to be different.  I've had jurors in rape prosecutions ask to be excused as older women because they'd been sexually assaulted while young and the prospect of re-dealing with the memory troubled them so. 

Sigmund Freud, the toppled-God of 20th century psychology, thought there was something to the idea, having invented it.  How is it possible that he could have invented a theory of mind that everyone else before him missed, I wonder, including Aristotle the biologist.  Karl Popper gives Freud his due by pointing out that little that Freud hypothesized was capable of scientific testing, which made it pseudo-science.  With Freud's theories one could hypothesize contradictory results, both either true or both false.  Other than that, fascinating.

Freud has been supplanted in modern psychiatry by pills.

The problem is at its worst when the witness is unable to provide the original source for a alleged memory, making it both groundless and worthless on which to build a legal case, such as a criminal prosecution or suit for money damages.

See Daniel L. Schacter's The Seven Sins of Memory (Houghton Mifflin, 2001).  He's Chair of the Harvard U. Dept. of Psychology.

See also False Memory Syndrome.  There was a whole institution set up to deal with all the false memories that fed on each other to form a huge wave of false prosecutions during the 1980s.  Researchers Elizabeth Loftus and Stephen Ceci showed experimentally how children could be suggested to "remember" things that had never happened, simply by talking to them as though certain false events had happened, reassuring them that their friends saw, or experienced it.

Most false accusations of child sexual abuse, when not the outright lies of a motivated young person, are enabled with the support of an adult confederate who is the real motivator and energy behind pushing the falsity to the limit.

Google this site for further references.

See also:

McMartin Pre-School Case
Kern County, California Attorney-General's report
Little Rascals Day Care Case, N. or S. Carolina
Jordan, Minnesota
Devereaux, 9th Circuit, State of Washington prosecutions
"Psychiatric Misadventures," article in American Scholar, by the head of the Dep't of Psychiatry at Johns Hopkins U. Medical School;
Richard J. Ofshe, U.C. Dept. of Sociology, false confessions
Lawrence Wright, The New Yorker Magazine, on the Thurston County, State of Washington prosecutions;
False Memory Syndrome Institute, Philadelphia

Ms. Lithwick has this link to investigator Paul Ciolino, Chicago, IL, who has a number of excellent suggestions as to what to look for when investigating a false accusation based on allegedly recovered memory, i.e. formerly repressed memory until somehow either uncovered, or more likely, suggested by a motivated talk-therapist. 

There's money in talk-therapy, remember.  It became a cottage-industry, supported by Victim-Witness money from the State of California and perhaps other states as well.  The talk-therapist couldn't be paid unless she opined that her patient had been the victim of a violent crime, such as sexual abuse as a child.  There was an incentive first to suggest and then to confirm as found a claim of memory, as in, "Oh, so that's why I'm all  messed up, I was molested by my father when I was in parochial school, now I get it, thanks.  I'm not messed up because I made the wrong choices of  men, alcohol, drugs, gurus, communes, and talk therapists.  It's all my father's fault.  And my Mom's."

I had a case like that.  Police were checking the basement for dead bodies.  The FBI refused to dig up their parking lot, the site of a former house where more bodies were said to be buried.  No fools, those FBIs.  The daughters had sued their parents, telling a story of how the parents held witches covens in the basement where they dressed in hooded robes and daddy sacrificed all these babies and molested the daughters.  Mom was sued on a theory of failing to protect.   The parents were in their late sixties.  Had sent their daughters to Catholic school to protect them from the evils of the world.  The daughters managed to find it anyway, with the help of talk therapists and a women's talk therapy group which helped them come to believe.

The evil was in themselves, it turned out. 

Odd, how that seems to work, isn't it.

[Here's a better link to the Ciolino article on investigation referred to below.].

To read the quoted Ciolino item in the continuation below (referred to above), you may have to hit Ctrl-+ to enlarge the font display, and Ctrl-minus to reduce again, and disregard the formating issues.

SHERIDAN: LAWYER

If you've arrived here because you are looking for a lawyer for your matter, or that of a friend or relative, you may want to know something about what kind of a lawyer you are looking at.  Please feel free to look around and see.

The items on this site consist of published articles in professional journals that I've written on the subject of false accusation, an interest of mine professionally for many years, as well as other writings about the legal problems of individuals, to constitutional law, a subject I've taught and find interesting enough to keep up with.

Familiarity with the subject of Constitutional Law adds a broader, deeper dimension to one's thinking about a particular matter, as even the most modest has its roots in Conlaw.  

Conlaw is the operating system of our governments, state, federal, local, and even international law, through treaties, which are defined in the Constitution to be part of the Supreme Law of the Land.  That's why migratory birds, for example, are protected, through treaties as well as domestic law. 

All government and all law must comport with our Constitution, otherwise be deemed...unconstitutional!

So by checking out this site you'll get an impression of a trial lawyer who can address courts, juries, and opposing counsel persuasively, and who can also teach and write, an attorney who has had considerable experience as both a prosecutor and a defense attorney, and a professor of Constitutional Law (at San Francisco Law School, 2002-2007). 

When people ask "What kind of law do you practice?" or "What kind of lawyer are you?" I often reply, "I represent people with legal problems because of psychological problems."

This covers a multitude of sins, of course, and generally provides an opening for a conversation, if that's what the inquirer wishes.

I don't specify who has the psychological problem giving rise to the legal problem, of course.  It could be that my client has problems with substances such as alcohol or drugs.  Then I'd like to know the reasons that this problem exists.  Emotional problems stemming from loss of job or spouse?  Anger management problems causing violent outbursts?  One looks for such things, among others.

Or the legal problem could be caused by a false accusation made by a significant other, or former S.O., now showing themselves in this form of revenge or retaliation.  I've seen this more than once.  Many contested matters derive from this.

Or the opposing counsel may be an ideologue who has an axe to grind making it difficult or impossible to see other viewpoints, making it that much harder to deal with the matter.

My teaching experience includes a summer of teaching First Amendment law, the freedom we have to exercise our mind, to think and believe as we wish, and to express and publish what our conscience tells us is right, subject to some limitation against defamation, obscenity, fighting words, and urging, soliciting, or conspiring to commit criminal activity, with present ability and danger of committing it now. 

Subject to those few and narrow exceptions, we have broad freedom to believe, teach, write, and advocate as we please.  The people of few other nations enjoy such breadth of liberty.  Lawyers, as well as others, have a tradition of trying to keep it that way here.

I hope you enjoy and are stimulated by what you find here.

PRESIDENTIAL COMMENTARY ON SUPREME COURT DECISIONS

As Pres. Barack Obama made his State of the Union address to a Joint Session of Congress last Wednesday with some members of the Court seated front and center, Associate Justice Samuel Alito was seen, and commented on, to shake his head negatively and mouth the words, "Not true," as reported in the press, in reference to the Citizens United decision the week before which accorded corporations more free, meaning expensive, speech than they'd been accustomed to for the past century of limitations on corporations buying representatives, hence government.

I don't know the significance of the C.U. case as the reactions are just now brewing in the form of new legislation designed to curtail what some think abusive lobbying and politicking by wealthy interests.  But the presidential critique of the case and the head-shaking reaction by the justice brought to mind a previous instance where a president addressed the significance of a case in the presence of a member of the Court.

The occasion was the First Inaugural Address of Pres. Abraham Lincoln in 1860, the oath of office having been administered by Chief Justice Roger B. Taney, author of the Dred Scott decision (1857) which helped crystallize the polarized North and South popular opinions regarding slavery, hastening the advent of the war, according to various commentators.  Lincoln was faced with incipient secession and was trying to apply reason in the face of emotion.  Here's what he said about Dred Scott, a suit between private parties in which, I believe, the government did not participate.  I don't know this for a fact, but I assume that the function of today's Solicitory-General's Office was not then exercised in some fashion:

"... I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.

And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could  the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes...."

Perhaps Chief Justice Taney shook his head negatively at Lincoln's undercutting of the pro-slavery, anti-human rights holdings of the case and its purported legal authority as binding on the nation and thought to himself words similar to "Not so."  I say purported because a great constitutional lawyer, A. Lincoln, had just denied its authority, saying that to do otherwise would be to have the people cease to be their own rulers.  I defer to Lincoln.

Part of the deal of being a justice of the Supreme Court is that one doesn't always know at the time of decision the effect it will have, how it will be taken, or its lasting significance.  Seeing the decision characterized, or mischaracterized, differently than one may have intended, goes with the territory.  Libraries have been written on Dred Scott.  The Feherenbach volume alone is more than 800 pages, briefing one case, if you will.

The Santa Clara Railway Case, when was that, 1887 or so? recognizing w/o argument but taking it for granted that corporations had the constitutional rights of humans seems to have contributed to the foundation of Citizens United.

Roe v. Wade (1973) is a more modern example of a case that perhaps didn't seem out of the ordinary when decided, yet in its own way has resulted in a kind of civil war with abortion protesters murdering abortion performing doctors and then seeking to excuse the crime on the basis of genuine belief, the Roeder case decided this week in Kansas against that proposition being the latest example.

The point is that we're free to characterize the import of cases as we see them, rightly or wrongly, exaggeratedly or not, and that includes presidents, justices, other politicians, partisans, and members of the public.  Cases are like paintings or any other artifact.

Beauty is in the eye of the beholder.

Perhaps you see it differently and can advise who is, or will turn out to be right, Alito or Obama.  Or Associate Justice Anthony M. Kennedy who seems to have figured he was dealing more with free speech than corporations and political law.

rs

I was pleased to see a "nice post!" re this, from one of the distinguished historians and law professors on the Conlawprofs listserv, P.F.

WELCOME

Welcome to the Law Office of Robert Sheridan.

This blog is for people seeking professional legal representation when dealing with police, prosecutors, judges, probation officers, juries and the public,

It contains articles and items written by yours truly.  You'll find out what we do, what we've done, and what we think important enough to write about.

Thanks for checking us out.

rs

CARGO CULT LAW & MEDICINE - 1

The False Child Molestation Outbreak of the 1980s: An Explanation of the Cases Arising in the Divorce Court Robert Sheridan* In 1981, Congress enacted legislation to deal with actual cases of child abuse by requiring the states, as a condition for the funding of state programs, to enact mandatory reporting laws.  California's statute requires all child care custodians, medical, and nonmedical practitioners, defined to include teachers, nurses, and dental hygienists, among others, to report suspected cases of child abuse — sexual, physical, and emotional.  Failure to report is a misdemeanor, punishable by up to six months in jail and a $1,000 fine. In addition to defining sexual abuse to include virtually any inappropriate sexual stimulation of a child, the statute defines "reasonable suspicion" to mean "that it is objectively reasonable for a person to entertain such a suspicion, based upon facts that could cause a reasonable person in the like position, drawing when appropriate on his or her training and experience, to suspect child abuse" (California Penal Code Sec. 11166[a]). That nondefinition is a major rational problem area in dealing with this emotionally overloaded issue.  It has contributed to the bringing of some 1.2 million reports of suspected abuse in 1981 and 1.9 million reported cases in 1985, according to findings released March 2, 1987, by the House Select Committee on Children, Youth, and Families, in a report entitled "Abused Children in America: Victims of Official Neglect." Behavioral indicators of child abuse, according to the prosecutor's handbook put out by the National Center for the Prosecution of Child Abuse, of Alexandria, Virginia, a subsidiary of the National District Attorneys Association, may include overly submissive behavior, aggressive acting out or incorrigible behavior, school related excesses, sleep disturbances, bed-wetting and "clingingness."  Such broadly defined so called indicators have a grave potential for contributing to a false accusation, because children who have not been sexually molested may exhibit such behavior. There are other error factors which either cause false reports to be made or contribute to the failure to recognize a false report. In the divorce context, this may be seen when an overly suspicious mother tells the child protection intake workers that she suspects the father for some reason, such as vaginal redness.  The young child, under the mother's questioning, may acknowledge the father touched her "there" during weekend visitation.  The worker interrogates the child and develops the story.  A report is written and submitted to a court which cuts the father off from the child, who remains with the mother.  Criminal proceedings may result based on the uncorroborated word of children as young as three.  Fathers have been bankrupted, emotionally wrenched, and deprived wrongly of their children based on circumstances such as this.  Some may have been erroneously convicted as well. Why? I would ascribe it to a failure of reason in the context of an emotional situation. The Salem Experience There have been notorious examples of rational failure in the past.  The Salem, Massachusetts witch-hunt of 1692 is the classic irrational child molestation case of all time, with eleven girls ages eight through seventeen instrumental in causing twenty executions and 130 condemnations to death on the charge of witchcraft. More precisely, the Salem children's parents and the surrounding adults were responsible for the outbreak, not the children.  The adults were acting as child advocates, working for the best interests of the children. Witchcraft was felony child molestation, a capital crime, in 1692.  The myth in which virtually all of the Puritans believed was that there was a devil, who operated through intermediaries, termed witches if female, wizards if male, to harm or torment innocent people, such as the children of the village. When Dr. Griggs was called to examine children who had adopted "odd postures," "foolish, ridiculous speeches," "distempers," and "fits," he diagnosed the "Evil Hand" or malefic witchcraft.  Perhaps, believing in the devil, he expected to find his presence. The household of the Rev. Samuel Parris, in which the first witchcraft accusations were developed, was irritated and disturbed.  Parris was at war with his congregation and his town and felt betrayed by their failure to pay his salary, which included corn and firewood, essential to withstanding the winter. The context may be likened to that of a divorcing family, a microcosm coming to an end, with attendant fear and anxiety, marked by bitterness and ever increasing ruthlessness in fighting, with the children used as weapons.  Had Dr. Griggs, and the real experts, the ministers, objectivity and sufficient distance from the problem they might have looked for the cause of the children's behavior, and subsequent allegations, in the context of what preceded them. From the distance of three centuries, it seems more clear. The children, according to Boyer and Nissenbaum (Salem Possessed, Harvard U. Press, 1974), were experimenting with fortune telling on the subject of their future status, including love and marriage.  They conjured with sieves, keys, peas, nails, and horseshoes.  They foretold the future with a crystal ball, and perceived a specter, like that of a coffin, which frightened them. Questioned by Puritan elders, they at first resisted answering, one supposes because of the sexual content of the imaginings being probed. One also supposes that the children of 1692 were as familiar with what witchcraft manifestations were supposed to be like as our children are about fantastic space characters, or a Halloween witch or ghost. "Whoo ... a ghost," immediately conjures up the specter in our minds, even now, of an ephemeral creature shrouded in white from another world who passes through walls and does mischief, to the fright of children and believers. A Puritan elder's interrogation might be a frightening thing to a child, just as any child might be apprehensive in admitting a sexual curiosity to a strict adult who professed against such things as being sinful. Rumors began going around and, although resistant at first, the girls, "under the pressure of adult questioning, had finally named as their tormenters" three women who were accused as witches.  One even confessed, as many more later did. Thus the Salem witchcraft cases had even more proof than many uncorroborated child molestation cases today; they had corroboration, confessions from the witches themselves.  What better proof could there be? Unless one believes in witches, and the confessions of witchcraft extracted under some pressure by interrogators, the twentieth century rational analysis of such cases would require looking to other causes, and treating the children's testimony not as direct evidence of their claim of molestation by a witch, but as circumstantial evidence that something very disturbing had occurred in their lives.  This would require some investigation to determine that the case had nothing to do with witches. I think we would focus on what was disturbing in the children's lives, perhaps the uncertainty of their future as a family on the frontier of a wilderness populated by warlike savages with winter coming on and a father unsupported by his community and railing about it both in the pulpit and at home. We might also look to the misinterpretation placed by the adults on the unfamiliar behavior of children. Finally, we would look to the interrogation process by which the allegations themselves were first developed by adults, to see whether the statements of the children had been contaminated by the expressions of the adults. I suggest that this would be a rational approach to understanding both Salem's, and today's experiences with uncorroborated molestation charges developed by adults from the mouths of children, following some not-clearly-understood behavior or appearance.    The Rational Approach Child abuse cases are peculiarly difficult for those in authority to deal with rationally for a number of reasons.  The underlying causes of difficulty are the emotions such cases engender, together with the pressure to "do something" right away to "protect the child" from the imagined abuse.  The result, in the false cases, may be characterized as an order amounting to a judicial kidnap, the taking of the child away from an innocent parent, usually the father, and delivering the child into the arms of a wrongdoing mother, who is strongly motivated to support the newly established status quo. What are the rational approach problem areas in the divorce, or hostile context? Let us first look at the meaning of the rational, or analytic approach. A rational approach requires the employment of reason, not emotion, to resolve disputed propositions, through argument supported by fact and theory, accepted, after critical analysis, as comporting with human experience. It requires that a demand for a reason, or reasoned objection, be met with a piece of purportedly sound reasoning based on acceptable facts. Sound reasoning requires that the proponent of a proposition, i.e. the child protective service worker, or the prosecutor, advance facts sufficient to warrant the action proposed to be taken.  The proposed action is often drastic, such as removal of the child from a parent, or, it may result in imprisonment for long periods.  The less drastic the consequences, and the more emergent the need to take immediate protective action, the less proof required to do so describes how the legal process actually functions. In child abuse cases the amount of proof required to remove a child temporarily from a parent is trivial.  The mere reported statement of the child is often sufficient, particularly when the reporting party is a person wearing the mantle of the flimsiest authority or competency, such as a so-called child-advocate or social worker. The rational approach requires that no adverse action be taken on insufficient proof, and that reasonable objections must be shown not to exist before adverse action can justifiably be taken.    Rational Approach Problems Areas The Cause of False Reports The misinterpretation of a young child's account of an overnight visit with the father is the most common cause of a false report.  If the intake worker is biased towards believing the accusation developed from the child by the mother, the stage is set for travesty.  The child will be cut off from the father and kept with the mother, even if the story is false, because the worker will either fall to detect the falsity or will contribute to its development. One supervisor of a child abuse intake unit in a city hospital, a psychiatrist, described how she had once missed diagnosing a valid case of abuse, only to learn that the child had been found dead hanging in a closet later.  Such experiences, and the teaching of them, may encourage some child abuse intake workers to persist in questioning a child until the child says what the worker is asking about and wants to hear. Since the child is frequently brought to the child advocate by someone suspecting sexual abuse, and the subject will have been discussed with the child, directly or within earshot before arrival, a persistent questioner may be rewarded by achieving a reiteration.  This is particularly true when the child is shown unusual and suggestive dolls with disproportionately large penises and vaginas. The misinterpretation of the child's account of a visit with father is the result of observer bias, ineptitude, frustration, and the like.  The riskiest area involves improper questioning technique.  Questioning is improper when it supplies new words or concepts which may elevate the child's level of sexual sophistication, or suggest details the child hadn't uttered. The reinforcement of selected responses by reacting positively or negatively to the child's statements and the projection of the questioner's own emotions, fears and concerns, gives several messages to the child.  She learns that these things are expected and it is okay to say them.  She experiences that she will be rewarded with love, sympathy, and protection, on a personal level.  She is told that she will he helping daddy get needed "help" to prevent him from molesting again. In the hostile context, particularly where the mother questions the child after every weekend visit with the father, such questioning can have an influential effect on the child in terms of her level of sexual sophistication.  It can also affect her willingness to take the mother's side in a fight where the custody of the child is the mother's desired goal, and perhaps eventually, the child's as well. The critical factors comprising this risky scenario include the domination by one in a superior position over a weaker person who is dependent on the superior person for continued unpunished existence, and the essentials of life, such as food, shelter, clothing, and emotional peace, particularly the latter. Indoctrination through confrontive, suggestive questioning in a hostile and fearful context provides the necessary information.  This information is later repeated, orally or through drawings, dolls, or "play therapy" — devices used to entice a child into reiterating what it is she is supposed to know. A motive on the part of the stronger to resist losing the possession, loyalty, or control of the weaker represents domination over an enemy.  This, together with isolation and time to work on the dependent one, will result in a succumbing to the will of the stronger, a surrender, an accommodation.  This occurs when the ability to resist is worn down in the interest of surviving in peace. How effective is this process? This describes the Korean War situation which gave the term "brainwash" popular currency in 1952, when 22 American POWs, ranking as high as lieutenant colonel, denounced their mother country, turned coat, and refused repatriation. Other examples: "Stockholm Syndrome," describing hostages of armed bank robbers who held them for several days in a vault while surrounded by police.  Several of the women "fell in love" with their captors.  One later married hers. Patti Hearst: the kidnapped hostage of a terrorist group, held in isolation for long periods, beaten, and dominated, physically and emotionally, ultimately was "turned."  She then cooperated in their crimes, for which she was convicted of having participated of her own free will.  Her sentence was later commuted, I think, because of reasonable doubt that she really acted of her own free will. Peaceful intact families, where each parent supports the other in the role of loving parent and protects the child's sense of emotional security, rarely produce children who falsely accuse of sexual molestation.  This is seen most often in warring families where one parent vies for the child's attention and love, and may use the child as a lever for the destruction of the other parent. In a divorce, the elements of dependence, isolation, hostile context, bitterness, increasingly ruthless fighting, motivation, indoctrination, and time to take effect, are present along with the child's need to accommodate for the sake of emotional peace.  If the price of peace is the destruction of the father, it is not too high for a child disturbed from living in such an anxious, conflicted state, particularly where the mother represents the hope of refuge. One would think that anything the child says in such a context would be treated as were the statements of the POWs, that is, brainwashed, coerced, not the product of free will, suspect, subject to confirmation by independent, dependable evidence before being accepted.  No corroboration, no faith. This is not the invariable response.  Numerous are the examples of innocent accused fathers who liken their experience to the Salem witch-hunts, with good reason. Later, the POWs returned, recanting and acknowledging the indoctrination problem.  Anne Putnam, in 1706, abjectly recanted her Salem witchcraft accusations, in writing and in public, attributing them to adult influence.  Even the judges recognized they had shed innocent blood and prayed forgiveness in their churches. What stopped the Salem executions was the fact that the newly arrived governor's wife, Lady Phips, having expressed sympathy for the condemned, found herself accused by the children, following which her husband abolished the special court he had established to handle the outbreak of cases.  This effectively put a stop to the prosecutions which were increasingly being questioned as more and more people, mostly women, were being condemned. In the outbreak we see today, the governor's wife has yet to be falsely accused.  We see sufficient numbers of ordinary people falsely accused to give rise to support groups protesting the medico-legal response to the phenomenon.    Weapons of Choice In the divorce wars, each on the field of combat has a weapon of choice. First I should note that I have never heard of a case in which a father sexually abused his child to get back at his ex-wife.  Incest is a differently motivated pathology entirely.  The typical male response to the provocation, frustration, and rage of divorce, is to drink or use violence against his wife, perhaps in the presence of the children, or both. The wife's weapon of choice is not violence, but the child.  She gets back at the husband by depriving him of the only thing out of the broken marriage he dearly loves, the child.  The child is her leverage to insure cooperation and punishment for a recalcitrant and deserving husband.  If she can point out to the child examples of his misbehavior, she is well on her way toward succeeding in the alienation process. The role of the mother in developing a false accusation may have causative factors in addition to her own hatred, spite, and desire for revenge.  She may feel guilty for some part she played in the breakup of the family.  She also may achieve three positive emotional gains by succeeding in developing an accusation out of the child's mouth: First, she secures the "buying-in" of the child to her hostile view of the father. Second, in the eyes of herself, the child, her family and friends, the mother goes up a peg and the father goes way down, because even if the accusation is not formally acted upon, the stigma becomes part of the family lore, and the father is always seen in some degree as being tainted.  I see this as an attempt to achieve a "status exchange." Third, what do we naturally do when we feel guilty about something bad we've done?  We relieve the guilt by shifting the blame.  We point out someone who is even more blameworthy. No matter what misconduct a woman is guilty of, from sex, to drugs, to child neglect, it is not as bad as child sexual molestation perpetrated by the father.  Guilt transference is the first resort of the scoundrel. A hysterical mother, obsessed with the thought that her children may be victimized sexually by the hated father, is apt to go looking for signs where none exist, and find them anyway.  Experienced child protective service workers have come to expect mothers to bring young daughters in on Mondays following visitation, with redness, rash, or itching precisely because fathers sometimes avoid cleansing the child's vaginal area thoroughly because of a reluctance to touch there. Psychiatrists are aware of cases in which two people, a mother and daughter, for example, feed off each other's mental abnormality such that they share the same delusions.  It is doubtful that the average child protective service worker or police investigator is competent to detect or rule out such a process during an intake interview. In the divorce wars, the children's prime weapons are acting out, and accommodating.  No doubt there are many other behaviors as well.  Areas to be investigated to understand the child in a conflicted situation include the relationship to each parent, mental abnormality of the child or parent, conflict in loyalty towards each parent, anxiety over being separated from a different parent twice weekly over visitation, a sense of powerlessness, an undeveloped conscience, such that the child does not know the significance of unreal things spoken or acted out, and the normal attraction that a child has for the opposite-sex parent at various stages of development.  Finally, the child's stage of development, including the ability to accurately perceive, interpret, and recount circumstances of adult significance requires focused attention.    The Causes of the Failure to Detect False Reports The myth current in Salem, Massachusetts, 1692, was that there was a devil who tormented children through adult intermediaries who were in league with him as witches.  Today's equally malefic myth is that repeated in the brochure of San Francisco General Hospital's child abuse intake unit termed CASARC, for Child-Adolescent Sexual Assault Resource Center.  SFGH is the publicly funded county hospital.  Its brochure states: "Always believe the child who discloses sexual abuse.  Children NEVER lie about this problem" (Emphasis in original). An attorney who fancies herself a "child-advocate" (self-proclaimed, often court appointed, and who is now a Juvenile Court referee with decision-making power over suspected cases of abuse) lectures "Children deserve to be believed." Only truth deserves to be believed, and neither the children nor their advocates have a monopoly on it.  Nonsense to the contrary contributes to the failure to detect falsity even where there is a willingness to look competently, which is rare. "Looking competently" is difficult to achieve.  It presupposes training.  It requires the opportunity to look, that is uncontaminated access to the child, the mother, and the father.  It requires hard work and a willingness to put aside bias, cant, and emotionalism.  Distractions such as laziness, politics, and lack of funding to provide the necessary time and manpower get in the way. It is difficult to get at the facts by ordinary investigative means.  Often the facts are not properly developed.  The result is the failure to identify valid and invalid cases, and the tendency to treat more cases as valid than exist. How bad are the rational failures of inept child-advocates?  I call it the trick mirror approach.  I see it in the arguments over the validity of cases.  The false premise is that the facts support the truth of the child's uncorroborated accusation, but if the facts are otherwise, the accusation is still true. Examples: (1) Consistency in the repetition of the story indicates truthfulness, whereas inconsistency also indicates truthfulness, because the child is disturbed over having been molested. (2) Timeliness in reporting the distressing event indicates truthfulness, whereas delay also indicates truthfulness, because the child is disturbed and thus reluctant to talk about the unpleasant event. (3) The presence of graphic details indicates truthfulness whereas the absence of details also indicates truthfulness, for the same reason. (4) That the child sticks to the story indicates truthfulness, whereas if the child recants, this also indicates truthfulness, because of the disturbing consequences of relating the traumatic experience. On this latter point, I suspect that some children would sometimes like to extricate themselves from having made a false report, but are not permitted to do so. (5) If the father confesses, the accusation is true; if he denies guilt, it is also true, because admitting guilt is too shameful in these cases. Many people acknowledge wrongdoing, including men who have molested children.  There is no reliable study concluding that there is a greater reluctance in these cases than others.  You would expect an innocent man to deny wrongdoing.  That is what you would do if you were falsely accused of anything. Compounding all of the above difficulties in thinking clearly, California has enacted a statute, and its courts interpret it in a manner insuring that a competent investigation not only will not be performed by the authorities, but will not be permitted on behalf of an innocent accused. The statute, California Penal Code 1112, was enacted at the urging of women's rights organizations to protect rape victims from being compelled to undergo a psychiatric evaluation, on the ground that it was intrusive, and that men who brought criminal charges were not compelled to undergo the same.  This statute is now applied to prohibit a child psychiatrist or psychologist from interviewing the child in a maternally developed, uncorroborated, charge of incest brought by a child as young as age four, even where obvious signs of disturbance can be cited as preceding the accusation on the part of both the mother and the child. Not the least of the rational problem areas is the tendency, perhaps unintentionally, to shift the burden of proof to the accused father and to expect him to explain how the mother could have induced the child to so testify, while at the same time not permitting him competent access to the child or the mother. Prosecutors say, "This kid is good, she couldn't be making this up, she couldn't know about these things."  She could if she were asked about it by the mother.  The mother's denial should be taken skeptically.  In divorce cases, undue influence should be presumed until eliminated factually. Police and prosecutors ask suspects if they will take a polygraph examination.  If the authorities have to ask, they are acknowledging doubt and they need to prove the case out of the suspect's mouth.  It is not a burden he should willingly shoulder. There is the tendency to lower the burden of proof to mere nothingness, to have intake workers testify as to what they think they recall the child was saying, in order to spare the supposedly molested child the "additional" trauma of testifying in court, or confronting the person she accuses. Until these problems are effectively dealt with, we'll see many more false cases before the Governor's wife is accused and a stop is put to the child molestation witch-hunts that crop up with increasing frequency. I suggest that if the emotionalism is recognized, and put aside, as we focus on a rational, analytical approach, we can distinguish the valid from the invalid cases, and bring fewer false charges. Thomas Brattle, of Brattleboro, Massachusetts in 1692 was the first to proclaim that innocent blood had been shed.  Shortly after Increase Mather, president of Harvard College, wrote A Case of Conscience, declaring his misgivings about the accusations and what served as proof of them.  In it he uttered his famous dictum: "It were better that a hundred witches go free than one innocent person be condemned." The prosecution and the removal of a father from his child on the basis of the reasoning criticized here is the shedding of innocent blood.  When a father has been put in jeopardy of his liberty, and wrongfully deprived of seeing his child for years, innocent blood has been shed when the falsity could have been discovered beforehand, but was not. Selected Bibliography on the Salem Experience Aymar, B., & Sagarin, E. (1967). Salem witchcraft. In A Pictorial History of the World's Great Trials ()() (Chapter 7). New York: Bonanza Books. Boyer, P., & Nissenbaum, S. (1974). Salem Possessed: The Social Origins of Witchcraft ()(). Cambridge, Massachusetts: Harvard University Press. Hansen, C. (1969). Witchcraft at Salem ()(). New York: George Braziller, Inc. Karlsen, C. F. (1987). The Devil in the Shape of a Woman: Witchcraft in Colonial New England ()(). New York: W.W. Norton & Company. MacFarlane, A. (1970). Witchcraft in Tudor and Stuart England (). New York: Harper and Row. Starkey, M. L. (1949). The Devil in Massachusetts: A Modern Inquiry into the Salem Witch Trials ()(). New York: Time Incorporated, Book Division. The Salem Witchcraft Papers (3 vols.) () (1977). New York: Da Capo Press. (Verbatim transcripts of the legal documents of the Salem witchcraft outbreak of 1692. Compiled 1938 by the Works Progress Administration. Edited and with Introduction and Index by P. Boyer and S. Nissenbaum.) Thomas, K. (1971). Religion and the Decline of Magic (). London. Upham, C. W. (1959) (2 Vols. Reprint edition). Salem Witchcraft ()(). New York: Frederick Ungar Publishing Co. American Classics Edition. First published 1867. Weissman, R. (1984). Witchcraft, Magic, and Religion in 17th Century Massachusetts (). Amherst, Massachusetts: University of Massachusetts Press. * Robert Sheridan is an attorney and can be contacted at 735 Montgomery Street, Suite 210, San Francisco, CA 94111.  [Back] [Back to Volume 2, Number 3]  [Other Articles by this Author]

Copyright © 1989-2009 by the Institute for Psychological Therapies. This website last revised on April 13, 2009. Found a non-working link?  Please notify the Webmaster.

CARGO CULT LAW & MEDICINE - 2

Fooling Ourselves: Cargo Cult Law and Medicine Robert Sheridan* The first principle is that you must not fool yourself — and you are the easiest person to fool (Feynman, 1985). ABSTRACT: A fundamental cause of false accusations is the tendency of adults to fool themselves.  Adult investigators who are biased towards believing an accusation is true will be unable to conduct an appropriate investigation and therefore will find what supports their prior beliefs.    So many child sex accusations turn out false that I have wondered why presumably intelligent and well-meaning authorities believed them in the first place.  False accusation fiascos have included McMartin Preschool, Morgan-Foretich, the Jordan, Minnesota case, and the Cleveland, England affair.  In my practice, a six count case (worth 23 years in prison) was dismissed before trial last April after the client spent three months in jail and a 61 count case was dismissed after a hung jury a few years ago; both were false allegation cases. I wondered why the falsity couldn't have been caught before the devastating charges were brought.  Why were the authorities being fooled by kids? I studied why and described important false influences on the children and the adult who is often behind them in a previous article in this journal (Sheridan, 1990).  Since then, I've come up with an even more fundamental cause of false accusations. Children do not fool adults; adults fool themselves.  The smarter they think they are, and the more dedicated, the more likely adults are to fool themselves.  Humility, that is, awareness of one's own bias, and acknowledging that there may be more to the story, turns out to be protective and productive, as well as scarce.    Cargo Cult Law and Medicine Richard P. Feynman, the late Nobel laureate in physics, stressed the importance that scientists not fool themselves by referring to the cargo cult people of the South Pacific after the war (Feynman, 1985).  These aboriginal islanders wanted to make U.S. cargo planes return with all kinds of goods, so they erected towers and wooden antennas near the airstrip, acted like controllers, and waited for the planes to come in.  Their form was correct but no planes came in.  He calls this "cargo cult science," where you do all the right things, you think, but you are wrong, nevertheless.  You either leave something out or draw the wrong conclusion.  What is missing, Feynman says, is "utter scientific integrity," meaning "a kind of utter honesty, a kind of leaning over backwards," the duty "to report everything you think might make your conclusion invalid," and "giving details that could throw doubt on your interpretation."  It's this type of integrity, this care not to fool yourself, that he says is missing in much of the research in cargo cult science.  He gives examples of investigators fudging data not fitting the theory they wanted to prove.  "The first principle is that you must not fool yourself — and you are the easiest person to fool," he says. Feynman's first principle applies to any type of important investigation.  In child abuse cases the absence of investigative integrity reduces the process to cargo cult medicine and law.  Law and medicine rely on each other to such a degree that each suffers from the investigative flaws of the other in these cases.  These flaws include improper belief systems or biases, institutional pressures, carelessness, and lack of proper training.  Doctors and social workers in the medical system claim they are not investigators.  However, the legal system often takes action based on what they said and did with the child before the police entered the picture, and on the conclusions they draw. Both systems have a problem with the secret talks the accusing parent or other person had with the child before calling the police or the child protective service (CPS) worker.  If it is difficult for scientists, much less legal and medical investigators to think straight, how much reliance can we place on the private talks that a motivated and emotional parent had with a child before contacting the authorities? The suspect is often severely prejudiced because (1) no one in authority deals effectively with whether the child has been influenced by the questioner's questions, or is fantasizing, parroting, misinterpreting, or whether the first official interviewer has become a believer and then persuaded those that came next; and (2) that first person often too readily becomes a believer without having conducted a competent investigation into the context out of which the accusation arises.  Context is everything.  The suspect's protests of innocence are then routinely discounted on the theory that men always lie about molesting, which is false. Investigative integrity requires that the investigator be aware of his or her own biases, and take them into account.  It also requires access to evidence.  Yet the opportunity for defense counsel to discover evidence is curtailed more in child abuse than in other cases.  Under new Proposition 115, at preliminary hearings in California hearsay is allowed.  The child cannot be called for cross-examination (statements allegedly made by the child are testified to by an officer), and psychiatric evaluations of the child and the adult backer are prohibited.  Magistrates have had their power to weed out groundless cases curtailed and the review process is geared towards upholding convictions regardless of earlier infirmities.  Investigative integrity is thus impaired by law, which is why I call it cargo cult law and medicine.    Vignettes I Owe You A Lunch A college boy was accused of raping his 13-year-old stepsister.  I telephoned the sergeant assigned to the case after the girl was interviewed by a CPS worker and a rape detective, each of whom believed her story.  I asked the sergeant if he had personally spoken to the girl, and he said he had not because she'd already convinced the other two.  I told him that my client maintained innocence, I had no idea why the girl would make up such a story, and that in my experience children didn't fool adults, but that adults fooled themselves.  I suggested that he interview the girl himself because he might be a better investigator. A week later the sergeant called, saying, "l owe you a lunch."  The girl admitted she'd made up the story.  She was unhappy that her father recently married the boy's mother because she was no longer first in her father's eyes and the stepmother made her come in early and do homework, so she wanted to break up the marriage, which she did.  The sergeant, who was a better investigator, uncovered the lie by telling the girl she would have to undergo a medical exam which would tell whether she'd ever had intercourse.  She knew she hadn't so she copped out. I asked about the other two investigators, how had she fooled them?  "She didn't fool them," he said, "they fooled themselves."  In my opinion they wanted to believe the girl but didn't realize it. They were unaware of their biases.  They were in the child sex abuse business.  They wanted to believe the alleged victim and substituted faith for investigation.  Afterwards the CPS worker wanted to have the girl put in jail for lying (or perhaps for giving the lie to the belief that children never lie about these things).  When your only tool is a hammer, everything looks like a nail.    Mommy Pushed Me I was walking along a rough path to the beach.  Two steps ahead of me was a little girl of about three.  Her father was up ahead and her mother and grandmother were a few steps behind me.  The child suddenly tripped and fell.  Her father walked back, picked her up and asked what happened.  Crying, she said, "Mommy pushed me."  "No, she tripped on this rock," I said. Why did the little girl blame her mother?  She was responding to a demand by her father for an explanation.  She had to come up with something.  She was upset, crying, and the focus of attention.  She wanted sympathy.  She was confused.  She didn't want to get blamed.  She misinterpreted the situation.  She didn't realize she tripped. What if the child were seriously hurt, the parents had been fighting, and there were no witness to the tripping?  The father could have shown a bruised child to a CPS worker, had the child repeat that the mother pushed her, and a child abuse proceeding could follow in which the mother could lose her child.    We Are Quick to Suspect the Worst A neighbor called the police on seeing a body stuffed into the trunk of a car by a woman down the block, according to a recent news report.  The police stopped the car and had the woman open the trunk. Inside was a human form, only it was a hairdresser's dummy, as the woman was leaving her cosmetology class with her homework. The misinterpretation of an innocent situation.  This has been described as one of the most common causes of false reports of child molestation.  What do people attracted to this work, protecting children, essentially, believe?    Lying Children Never Lie They call themselves child advocates.  They tend to believe children.  It is as though anyone who questions the report of a child is doing the child a disservice and being disloyal to children.  With reports in the millions it is unimaginable that there would be no false accusations.  Yet people who work in the field profess "Always believe the child who discloses sexual abuse.  Children NEVER lie about this problem."  This quote appears in the brochure of CASARC (Child and Adolescent Sexual Abuse Resource Center) which is San Francisco's official intake unit for child abuse cases, at San Francisco General Hospital.  "Children deserve to be believed" taught an attorney at a child abuse convention.  She is now a juvenile court judge deciding child abuse cases.  I suggest that only the truth deserves to be believed and children have no monopoly on it.    Lie Catching Who is good at catching lies?  The police?  According to a recent study the police are no better than random at lie-catching (Ekman & Sullivan, 1991).  Secret Service agents who protect high officials were better at it.  Researchers surmised it was because they don't pay attention as much to what the suspect says when he says he didn't mean it when he threaten a government official, as to how he says it — body language, facial gestures, and the like.  Also, Secret Service agents are accustomed to accepting recantations, i.e. that the suspect was not telling the truth earlier.  Perhaps the agents feel relieved, and want to believe it was just big talk.  Just the reverse happens in children's accusations, because when the child later says she was just imagining, for example, or making up a story, that daddy touched her, not only is the recantation disbelieved, but it is taken as proof of molestation on the theory that denial is a defense against the trauma that the believer assumes happened. Investigative integrity?  First CPS investigators want to believe the worst, then they beg the question, and then they poison the well.  If children can't lie when they accuse, how can they lie when they recant?  They've been "reached," believers argue.  But if children are so trusting or fearful that they can be reached to recant, why can't they be reached to accuse?    Conclusions Wanting to believe causes belief, especially if someone is helping you along.  The reverse is that you cannot see what you cannot accept.  Self-deception is the highest form. Here are some pearls on the subject of belief.  One of the oldest is by the Greek dramatist, Euripides, 412 B.C.: Man's most valuable trait is a judicious sense of what not to believe. More recently, attributed to that profound observer of the human condition, Archie Bunker: Faith is believing in something that nobody in his right mind would believe (Quote passed along by Daniel Hager of the California bar). My favorite, is by Baldassare Conticello, Superintendent of Archaeology of Pompeii, when he was opposing the municipal authorities who wanted to build a road over his dig.  Someone told him he would win because the arguments were all on his side, and he replied: The period of maximum danger is when all of the rational arguments are on your side (New York Times. 1987). Finally, by Albert Einstein: Insanity is doing the same thing over and over again and believing that the results will be different. My own view? Believe anything you want, but don't kid yourself. References Ekman, P., & O'Sullivan, M. (1991). "Who can catch a liar?" American Psychologist. 49, 913-920. Feynman, R. P. (1985). Cargo cult science. Surely You're Joking Mr. Feynman ()()() (pp. 308-317). New York: Bantam Books. Sheridan, R. (1990). The False Child Molestation Outbreak of the 1980s: An Explanation of the Cases Arising in the Divorce Context. Issues in Child Abuse Accusations, 2(3), 146-151. * Robert Sheridan is an attorney at 2171 Junipero Serra Boulevard, Daly City, California, 94014.  [Back] [Back to Volume 4, Number 1]  [Other Articles by this Author]

Copyright © 1989-2009 by the Institute for Psychological Therapies. This website last revised on April 13, 2009. Found a non-working link?  Please notify the Webmaster.

SHERIDAN ARTICLES

Welcome to Mr. Sheridan's Law Office blog. 

It contains a number of items having to do with answering questions for people looking for a good attorney practicing in the Hall of Justice, Criminal Justice area.  You can gather examples of what we do, what to expect, what we've done, the things we write about, even a war story or two for amusement's sake.

He writes about dealing with false accusations, mainly.  There's a lot to know when dealing with those.

Since Mr. Sheridan has taught Constitutional Law at San Francisco Law School for a number of years (he was voted Professor of the Year by the students in his third year of teaching) there's also a blog devoted to that; see below:

Below is a list of articles written by Mr. Sheridan and their links on the Constitutional Law blog, called

Sheridan Conlaw

UNCORROBORATED SEXUAL ACCUSATIONS:  MEMORY OR INVENTION?

FALSE ACCUSATIONS; DEVEREAUX:  OFFICIAL MANIAS

CARGO CULT LAW, MEDICINE - 1

CARGO CULT LAW, MEDICINE - 2

REPRESSED MEMORY, ALLEGEDLY

DEVEREAUX: OFFICIAL MANIAS

Attorneys bring something to the trial when presenting a case to a jury.

 Experience.

 It takes awhile for a lawyer to accumulate experience through practice and then summarize what he or she has learned in a presentation that teaches and doesn't merely reargue old causes.

 The experience I've had debunking false accusations, especially those by children and former spouses with hidden agendas, has been most challenging. Part of the problem is that unless the accuser breaks down and admits the lying and the motive that caused the lying, you are left to speculation which may be clearly satisfactory, or in the unusual cases, a stretch, which is not to say that the explanation is false.

Munchausen's Syndrome By Proxy: ever hear of that?

Some mothers, it seems, have a morbid need to be seen as victims who sacrifice for their children; they receive attention and sympathy. What do they do to receive this attention and sympathy? They poison their children, even after a child has been admitted to the hospital. They may not want to kill the child, just keep it sick.

 "Oh, you poor dear, I don't know how you manage to sacrifice so much of your life for that unfortunate child."

 The Phillips case in Marin, California in the mid to late '70s is the case in point. It attracted considerable attention in the news because of its unusual nature and people lined up on both sides of the question whether the mom did it and whether the prosecution theory was true or not. The jury convicted and the appellate court upheld the judgment, establishing along the way that a psychiatrist need not actually examine the subject of his expert opinion to render it anyway.

The psychiatrist in that case, Martin Blinder, M.D., opined that the mother poisoned her child, or children, there were two, I seem to recall, to achieve this sort of secondary gain that had been reported in the literature of psychiatry.

Who among us would have thought of that w/o expert help?

Certainly not me. I'd never heard of it.

Now doctors and attorneys must rule out Munchausen's before concluding the cause of unexplained illness or death.

Baron Munchausen was a literary creation known for the tall tales he was unable to avoid telling, just as certain moms, I suppose, hence the name of the syndrome.

 Try and guess the explanation for this enigma.

The client, a 19-year-old college boy comes to the office with his mother. His 13-year-old stepsister has reported to police that he raped her. An investigation is underway. The youth is scared stiff.

I ask the mother to step out while I interview her son.

He denies any interest or activity with the girl.

The parents had recently married, his mother, her father; he barely knew the girl and had his own girlfriend, his own age.

The charge turns out to be false.

Tell me how and why.

Take your time.

I'm waiting...

I'll give you a hint. I couldn't figure it out myself.

Here's what I did.

I called the police sergeant assigned to the case and told him I was representing.

I asked whether he'd spoken to the girl.

 He hadn't.

Why should he, the sergeant asked, she'd already been spoken to by two experienced rape detectives who found her completely credible.

I served as a rape prosecutor for years in San Francisco.

I really wish you'd speak to her yourself, I remarked. In my experience, sometimes adults fool themselves with what they want to believe. This young man seems genuinely scared and his protestation of innocence seems totally uncontrived to my eye, I told him. Perhaps you're a better investigator, I suggested.

A week goes by and I get a call from the sergeant.

"I owe you a lunch," he says.

"How's that?" I ask.

"I've spoken to the girl and she admitted she made up the story."

"Wow," I exclaimed, "how did you manage to find out that?" "

I told her she'd have to undergo a medical exam which would determine whether she'd ever experienced intercourse," he said.

With that, she confessed.

"Why did she make up a story like that?" I asked.

"She didn't like the fact that her father had married the boy's mother and wanted to break up the marriage," the sergeant said. She was used to being the number one girl in her dad's life and now she wasn't and had a stepmother, to boot, who made her stay in at night and do her homework.

The sergeant was clearly a better investigator than the earlier two who had believed what they heard without checking it out further.

Why check out your victim if you believe she's a victim?

 I've seen that more than once, police believing people claiming to be victims when they're not.

This has set off more than one witch hunt.

What about those earlier two detectives, I asked, how did she fool them?

She didn't, he said, they fooled themselves. Ba-dum!

My words the week before had fallen on receptive ears.

We never had that lunch and I no longer recall the sergeant's name, but I always remember him and his good work as a model example of great police work.  I love good police work.  It makes my job as defense attorney so much simpler.  I can confront clients with evidence and encourage them to deal with facts, not unrealistic hopes.

I've written about this incident before in a vignette called "I Owe You Lunch," in one of the articles below, perhaps the one called "Cargo Cult Science."

Below is one of the articles I've written on the subject of false accusations:

November 09, 2004 DEVEREAUX: OFFICIAL MANIAS July 28, 2000 A FIRST PERSON ACCOUNT: BY ROBERT SHERIDAN [I wrote this article in 2000 and it was published in the San Francisco Recorder. I've done some highlighting for ease of reference, cleaned up some of the usual glitches, and added an afterthought, so labeled.] *** THE SIDEBAR QUOTE [below] FROM DEVEREAUX TRIGGERS THE ARTICLE: ***

THINK YOU’RE SAFE FROM BEING FRAMED BY SOCIAL WORKERS, DETECTIVES, DOCTORS, AND PROSECUTORS? THINK THE JUDGE CARES? THINK YOU CAN SUE WHEN YOU WIN? A FEDERAL CIVIL RIGHTS ACTION PERHAPS? THINK AGAIN. ***

SIDEBAR QUOTE:

U.S. 9th Circuit Justice Andrew J. Kleinfeld wrote: “Devereaux presented solid evidence that the defendants [police and “child advocates”] actively coerced witnesses to tell lies that would subject him to punishment for crimes he did not commit.

For that wrong, there can be no immunity.

Any government official should know that a person has a constitutional right not to be "framed." ... I think Devereaux's evidence suffices to make a case that defendants did fabricate evidence, by coercing the child witnesses to lie, in order to get Devereaux arrested and to remove the children from his home, .... ...the majority cites cases from the other circuits for the proposition that "there is no clearly established constitutional norm for interviewing child witnesses especially when they initially deny abuse." Myers v. Morris, arising out of the bizarre prosecutions in Jordan, Minnesota in 1983-84 does speak broadly about the uncertainty of the law regarding interrogation of children in sex abuse cases [then], but the facts as described in that case lack the critical element this one has, that the defendants who questioned the children knew or should have known that they were eliciting false accusations.

Use of children to satisfy adults' sexual cravings is a gravely serious crime, subject to very severe penalties.

Manufacturing false evidence and using the criminal law system to ruin the lives of innocent people is also a gravely serious wrong.

The more terrible the crime and penalties, the more terrible is the wrong of "framing" someone for it.

The seriousness of a crime never justifies manufacturing evidence and convicting the innocent.

Our system of justice does not allow for the position taken by the notorious Crusader general, "kill them all, God will know his own."

A number of towns in the1980's and 1990's appear to have been engulfed by some sort of hysteria among government officials about sex and children. Wenatchee Washington may be among them. Its newly appointed child abuse detective on his first child sex molestation case, together with its much more experienced social workers, and its prosecutors, filed 29,727 charges of child abuse against 43 men and women.

At the end of it all, though, few [charges] stood up in court except against the government's own witness, Linda Miller, the woman whose implausible (and, as soon proved, impossible) story of sex orgies lay at the foundation of the charges against many or most of the others.

Devereaux eventually was allowed to plead guilty to a minor misdemeanor without any sexual connotation, for spanking a child on the buttocks with an open hand.

Many of the others convicted in the Wenatchee sex prosecutions have had their convictions overturned on appeal.

The Washington Court of Appeals has appointed a judge to conduct a formal inquiry into what went wrong in its criminal justice system.

The affair has been popularly regarded as a Northwestern Salem, though it seems to have been more an official than a popular mania.

The doctrine of qualified immunity is useful when it enables government officials to do their duty with vigor, unafraid of enmeshment in lawsuits about new, doubtful or unclear constitutional claims they had no reason to know about.

The doctrine would be harmful rather than useful if it protected government officials who deprived people of such fundamental and well known constitutional rights as the right not to have government officials manufacture false evidence against them.

The vulnerability of government officials to lawsuits if they intentionally deprive people of their plain constitution rights is an important deterrent to official abuse of individual rights.

Nor can officials be immunized because they act with good underlying motives, such as to protect children from sexual exploitation. "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Devereaux v. Perez, Abbey, et. al. (97-35781, July 12, 2000) 00 CDOS 5716

***

The sort of legal abuse decried above has been the major part of my practice, and life, for the better part of twenty years.

It’s what my recent Foxglove, Sixty-Six Felony Counts, and several other dismissed prosecutions, were all about.

The following account is more than war stories. It’s about how official manias occur.

 ARTICLE by RS:

OFFICIAL MANIAS:  WHEN THE LAWS OF HUMAN NATURE OVERWHELM THE LAWS OF SOCIETY YOU CAN COUNT ON MAJOR TROUBLE

The first time I saw a false accusation of a very serious crime occurred in 1984 and I had trouble believing it was false.

The high-school teacher was divorced and living with his teen-age daughter when she and her girlfriend, who occasionally slept over at the house, each accused him of sexually molesting them in separate incidents.

Each act of sexual molestation is worth up to eight years in prison and they’re “stackable,” meaning they can pile up into a “Star Wars” sentence in no time.

“They’re both lying,” he was telling me, and I’m thinking, “Sure they are.”

I’d spent seven years prosecuting before entering private practice, including several years assigned to the Rape Unit of the San Francisco District Attorneys Office. I hadn’t seen many innocent people who had two different accusers.

Plus, Mr. Schoolteacher didn’t seem like a particularly “nice guy,” the way a lot of clients do after they’ve been accused of something serious.

Both girls admitted, however, making up their stories for different reasons.

The daughter made up her story in the mental ward of the hospital her father committed her on a 72-hour hold.

A troubled kid, she flipped out when he’d tried to ground her after she started ignoring her homework.

The nurse was asking what caused her to be committed and the girl said she didn’t want to say.

Was it something sexual, the nurse wanted to know?

Yes, the girl allowed.

With whom?

She didn’t want to say.

Was it your father?

Yes.

Did he molest you?

Yes.

Did he do this and that?

Yes and yes.

That was how the police investigation started.

Leading questions by child-sex investigators were common.

Police also had the other complainant as corroboration.

In recanting, the girlfriend explained she was trying to get even after a quarrel with the daughter by claiming the father molested her.

I learned that just because your client has more than one accuser doesn’t mean you can reject his claim of innocence.

Later I represented another quite devoted father who said he was innocent.

That launched me on what seems a long Odyssey.

The father had gone back to the Jerusalem, in what he called Palestine, to fetch a bride. Instead of accepting a traditional arranged marriage, he picked his own bride. When the marriage broke up a few years later and the judge let him keep his corner store and a couple of apartment units, the disappointed ex-wife became as bitter as the subject of “Hell hath no fury....”

Their daughter, three, who slept in the marital bed before the breakup, now slept with Dad during weekend visiting.

Mother would ask her questions, like the nurse in the case, above, only more probing.

The child learned what she wanted to hear.

Eliciting, finally, what she thought were incriminating answers from the child after an afternoon and evening of questioning alone, mother, accompanied by her divorce lawyer, with whom she was having a secret affair, brought the child to San Francisco General Hospital.

The child abuse intake unit’s brochure read, “Always believe children who report sexual abuse,” “Children NEVER lie about this.”

The child, seated on her mother’s lap, condemned her father while being interviewed by a nurse who used “anatomical dolls,” later outlawed in Amber B.,* on Kelly-Frye grounds as pseudo-science, to suggest sexual activity that never occurred.

There was no vaginal examination although intercourse was one of a list of crimes the child agreed [by nodding while being held in her mother's arms as the young uniformed cop questioned her by asking leading questions as to whether this and that had occurred.

Mom was allowed to translate verbal answers then and to Juvenile detectives.]

The criminal trial in San Francisco, lasted a month.

Sixty-six counts of sexual molestation were charged, based on two counts per weekend for thirty weekends of visitation.

The district attorney offered to dismiss sixty-five felony counts if my client would plead guilty to just one count.

The judge offered not to send him to jail.

The father refused, on the grounds he was innocent and would never see his daughter again.

 That’s the sort of thing that puts a little pressure on an attorney.

The jury hung.

After six months of negotiating the DA agreed to dismiss the entire case.

We’d let the Family Court (in San Mateo) appoint a psychiatrist to sort the family out.

The price was that the father had to agree not to see his daughter meanwhile.

Two years later, after talking to all the parties, the court-appointed psychiatrist concluded the charges were false.

They were, he reported, the product of the mother’s questioning and the lengthy process of alienation from the father that she had put the child through.

Good, I thought, we’ll move to restore visitation, at last.

Mother had married her attorney, who she’d lied about not seeing socially.

The judge, however, concluded that since the child had settled in with mother and her attorney, it would be too disturbing to require her to resume visitation with her father. The judge then terminated the father’s parental rights and he’s never seen his daughter again.

She’s now eighteen.

He lost his business and the apartment units, but remarried and has two sons. He kept his sanity throughout the long ordeal by asking, “What’s wrong with these people, are they crazy?”

The people he was referring to were us, the professionals who make the system run.

This taught me a lot about us.

I used to think that we were smarter than, say, those “stupid,” “superstitious,” people in Salem, three hundred years ago, who hanged their neighbors as witches.

 I no longer think that.

They consulted their doctor.

He said the girls were “bewitched.”

After that they were off to the races, just as when our doctors say the equally magic words, “child abuse.”

When medical misdiagnosis becomes the basis for criminal prosecution, there’s trouble ahead, for doctors make a lot of bum calls.

Witch-hunts, I thought, were a thing of the past. I no longer think so. [See Afterthought, below.]

We know pretty much all there is to know about most things, except for the physics of the atom, the universe, and how to cure the flu, I thought.

I no longer think so. The law is an instrument for applying reason.

The law accumulates wisdom, learned over the years through bitter experience, to avoid repeating the same mistakes. I no longer think so.

District attorneys and judges can be counted on to do the right thing if you point out what the right thing is, I thought. I was way wrong about this.

Medical experts can be counted on to do the right thing. This is one of the biggest mistakes I ever made.

The medical profession almost has the legal profession beat when it comes to denying its shortcomings.

I began telling friends, colleagues, and professional adversaries that something was wrong.

People were believing nonsense.

Suddenly I had bad breath.

Few wanted to hear about false accusations.

They didn’t like my messing with their preconception of law and medicine as knowledgeable, fair, and just, institutions.

They didn’t want to hear that some accused child molester was innocent.

They were all guilty, was the prevailing attitude.

They must have done something to get themselves accused.

Sure, just like the witches of Salem, I thought.

You had to prove innocence, otherwise you were presumed guilty.

Proving innocence is difficult.

There’s almost always some doubt.

Suddenly, I was out of step with the mainstream.

Look at this, I’ve become a radical, just like those hippie demonstrators against the war I used to prosecute for walking into nightsticks with their heads at Union Square.

My old sparring partners would get a laugh. I used to be a true believer in the forces of law and order.

Now I was trying to persuade people who thought the way I used to think to think differently.

That’ll make you think.

I didn’t give a damn what people thought who didn’t share my insights.

They weren’t up to speed yet.

Getting ahead of the knowledge curve was not a lot of fun, but it did make life a lot more challenging.

I wrote articles and gave talks to judicial and bar seminars about what I’d been learning.

Confirmation appeared in collapsed cases such as Jordan, Minnesota and Kern County, McMartin, Little Rascals, and a host of other fiasco cases. The book to read is Edward Humes’s Mean Justice (Simon & Schuster, N.Y., 1999).

I represented a sixty-eight year old mother, who’d sent her daughters to parochial school, one of whom, with the cooperation of the other, was now suing her and their father for abusing them as kids in a so-called Satanic ritual, three hundred years after Salem.

Daddy, a responsible government official, supposedly raped his daughters and dismembered a host of other children, then buried the bodies in the basement.

Mother, it was claimed, lifted not a finger to interfere.

But no children had disappeared.

Now the daughters were adults.

One spent a lot of time in a sexualized commune in the Northwest.

The suing daughter “recovered” her “repressed” memory during a talk-therapy session.

The other was too frail, emotionally, to be deposed.

Police interviewed the current homeowner who said he’d dug up the basement to install a new furnace but didn’t find any bodies.

Elsewhere, the FBI refused to dig up its parking lot to look for the rest of the bodies supposedly buried there, in a former yard of the family.

The suggestibility of participants in group therapy with other distraught women, led by credulous talk-therapists, was being noted in the literature.

The suggestibility of children to interviewers with agendas was being investigated. Talk therapy was put under the microscope.

The results weren’t pretty.

The knowledge gap between what I’d written about and the rest of the world was discovering was being filled with research and reports.

The reports were saying, “Watch out what you tell kids, for they’re liable to read you like a book and feed it back to you, and then you’re going to believe what you’ve been spouting.”

That’s how the children of Salem learned all about the Devil and his supposed witches and they wound up hanging the neighbors.

Fortunately, they were unpopular neighbors, so it was okay.

And they had trials first!

Talk therapists began to be sued for suggesting false stories to their clients and causing all sorts of trouble to innocent family members.

The verdicts began running against the therapists.

The Legislature, responding to the child abuse phenomenon, extended the statute of limitations, provided there was corroboration, but expressly outlawed corroboration provided by talk-therapist opinion. PC 803(g).

The courts, however, our protection against false accusation, still hadn’t spoken.

The issue was too hot, politically.

Child “victims” outweighed apple-pie and the flag.

I collected sayings to illustrate points.

Some I invented.

Hammering thoughts into nuggets is useful.

How could a three-year-old fool a nurse, a doctor, a juvenile detective, a district attorney, a magistrate, and nine jurors, I wondered?

She didn’t, I realized.

Children don’t fool adults, adults fool themselves.

That’s how Salem got started.

That’s what a panic will do.

That’s how West Coast Americans of Japanese Ancestry were interned after Pearl Harbor.

Police and public officials under investigation for misconduct often holler “witch-hunt.” They know all about witch-hunts when it comes to them. They don’t know what you’re talking about when it comes to you.

I read all about witch-hunts, and defined what they were.

A witch-hunt is where you pursue the culprit before finding out there was no crime.

Salem is the best example, because unless you believe in the Devil the only real crime was the legal process itself.

It was the same as ours.

When the heat is on, the safeguards evaporate.

The law of human nature overwhelms the laws of man.

Richard Jewell, in Atlanta, found the bomb and warned the people.

A genuine hero was treated as a witch.

That’s another kind of witch-hunt, where you go after the wrong guy because he’s all you’ve got, and you’re too lazy to find the real bad guy.

So you paint the wrong guy black.

Then no one cares.

Since everyone is morally impure except the witch-hunter, it isn’t hard to find.

Richard Feynman was a great inspiration.

He is the late Nobel laureate in physics who demonstrated, using a piece of rubber in a glass of ice-water at the hearing, that the cause of the Challenger disaster was frozen O-rings.

He was a well-developed skeptic of the untested claims of so-called experts.

“Surely You’re Joking Mr. Feynman,” his book, is a gold mine of how not to think, particularly the chapter called “Cargo Cult Science.”

Cargo Cult Law and Medicine was what I was fighting.

Feynman warned scientific investigators,

“The first principle is that you must not fool yourself, but remember, you are the easiest person to fool.”

I loved that because I was running into lawyers and doctors who did this all the time.

I had to guard against doing it myself.

I’ve been fooled, both by myself, and by clients.

So have you.

We get fooled when we’re told what we want to believe.

In the recently dismissed Foxglove murder conspiracy case, three counts, long before the indictment and long before receiving any discovery, I told reporters,

“The poison-murder story is fascinating, but missing a couple of things, like poison and murder.”

Many people were not inclined to accept that.

Court clerks told me they hoped my client was convicted.

Two hours into the cross-examination of San Francisco’s Chief Medical Examiner, a medical doctor, pathologist, teacher, and consulting expert in his field the case was over.

His lab test result, he was forced to acknowledge, was meaningless.

His opinion, based on it, was wrong.

The district attorney was forced to dismiss a million-dollar murder-conspiracy case after my client had spent 32 months in jail.

Wisdom is knowing what not to believe.

Why was the law behind the curve of critical thinking, I wondered.

Where were Detective Columbo, with all his questions, and Rumpole of the Bailey, with his man-of-the-world attitude, when we needed them?

Why were social workers, attorneys and judges so credulous of children? Do children have a monopoly on truth?

Not in Juvenile Court, they don’t.

But when they claim to have been molested, they do.

“Child advocates” proclaimed that children deserve to be believed.

Only the truth deserved to believed, I thought.

The best answer I came across as to why it seemed the law was playing catch-up was provided by Prof. Jacques Barzun, 93, of Columbia University, as he described the difficulty experienced in putting the beliefs of the Middle Ages behind us:

"The road to the present was hard and long because the old systems were good. They had consistency and completeness; only at a few points did contrary facts or gaps in explanation threaten their validity. The Middle Ages did not neglect observation. They examined the heavens minutely...and the earth eagerly for what it could yield... But observation is rarely neutral; it rests on pre-conceptions and pre-perceptions; and it was these that had to change.”

    FROM DAWN TO DECADENCE, 500 Years of Western Cultural Life, 1500 to Present. Harper Collins, N.Y. 2000, pp. 192, 193.

Professionals in law and medicine were lagging because we cannot not see what we cannot believe.

Few could believe that children, under suggestion, would report incorrectly on sexual matters they could know nothing about unless they experienced it.

Few could believe that anxious parents and experienced investigators would suggest and mislead so badly.

 Few could believe that tragic results were undeserved, considering how morally impure the accuseds were in other respects.

Moral impurity was used to excuse unwarranted punishment on other grounds.

Preconceptions were getting in the way of clear, hard, thinking, and had to change.

You don’t want to get too far in front of the preconceptions of the authorities or you’ll be in for the fight of your life.

Fiasco cases are caused by the failure to conduct a competent investigation.

To the best of my knowledge, we do not have anything we can fairly call a “due process right to a competent investigation.”

Justice Kleinfeld, in his dissent to Devereaux, calls this “a Constitutional right not to be framed.”

Framing the innocent is a perversion of due process.

The key to killing a false accusation is a competent investigation.

Don’t expect to find it in the midst of a popular delusion or mania.

Collective madness is thrilling to behold, but not susceptible to reason.

What you must do, should you find yourself like the Chinese man in front of the tank at Tiananmen Square, is to oversee a competent counter-investigation.

It is difficult, if not impossible, for a court to short circuit an ill-founded case built on an incompetent investigation.

Political, as well as legal, realities militate against it.

Summary judgment is not available in disputed cases of fact, which most false accusation cases are.

Just because your client is sued for allowing a UFO to land in his yard to kidnap and molest the plaintiff does not mean you can avoid going through a long, unpleasant process.

The usefulness of preliminary hearings to weed out groundless criminal charges has been severely curtailed by legislation.

By the time you get to jury, so much time, expense, effort, disruption, and harassment have occurred that innocent people, to avoid prolonged further custody and the risk of further miscarriage of justice, the system having exposed itself to them, will submit to an extorted plea of guilty to something they didn’t do, just as the “witches” in Salem did.

Some courts will coldly participate in this extortion to avoid embarrassment to the authorities, who are never supposed to be wrong, over what is certain to be the public display of a sure miscarriage of justice.

Plea bargains are fine when you’re guilty, but not if you’re innocent.

No one is treated as innocent down at the Hall, especially the defendants.

If they were not morally impure when they entered, they will be when they leave.

Perhaps you’ve wondered why we seem to be seeing so many miscarriage of justice scandals, lately, such as the overturning of rape or death-penalty murder convictions after years spent in prison as an innocent man?

It starts with case-building masquerading as investigation.

In its true sense, investigation means honestly trying to find out what happened.

If you skip the “honestly trying to find out” part and jump right to case-building, which is what happens in the exciting cases, there’s a pretty good chance of nailing the wrong guy.

Here’s how one experienced student of the subject put it: "It’s a textbook case of a miscarriage of justice where you have the lethal recipe of police and prosecution misconduct, defense ineptitude, and judicial indifference." By David Protess, Professor of Journalism, Northwestern University, about a Texas death penalty conviction his journalism students are reviewing.

He and his students have uncovered evidence leading to the exoneration of seven men convicted of murder in Illinois including three on death row.

Conservative, Republican, Illinois governor George Ryan has suspended all executions pending a study. S.F. Examiner 6/30/00

You think this can’t happen here? • Police Misconduct • Prosecutor Misconduct • Medical Examiner Ineptitude • Judicial Indifference

This explains Foxglove, where the Medical Examiner blew his only lab test.

When he told San Francisco police that he’d found unprescribed digitalis, from the Foxglove plant, in someone’s blood, he triggered a six-year witch-hunt.

 Police inspectors compounded the problem by getting involved in a scheme to sell the story to Hollywood.

If you plan to become a hero and get rich before you’ve cracked the case, there’s going to be something wrong with your case when you bring it.

By then, you will never be open to the idea that you’ve gone down the wrong path.

 After the court holds your client in custody for 32 months without bail on a poison-murder charge that’s slowly collapsing, it may not be a bad idea to make a deal for credit for time served to get the pack off your client’s back sooner rather than later.

That’s probably why Devereaux, in the opinion at sidebar, pled guilty to an insignificant (except as a face-saver) charge that seems to have little relation to the main thrust of the investigation.

In the prize-fight ring of ideas, forcing the other guy to throw in the towel is as good as it gets.

Justice Kleinfeld took the bull by the horns in the Wenatchee Witch-Hunt.

I’ve not seen another opinion like it.

It is almost (because it’s a dissent) an official validation of what many thoughtful people have been saying for over two decades.

Today it’s a dissent.

Tomorrow, if the truth means anything at all, it will be law.

Robert Sheridan Mr. Sheridan, a graduate of N.Y.U. Law School, has been a California attorney since 1967.

 *** AFTERTHOUGHT,

NOVEMBER 9, 2004

FUNDAMENTAL ERROR

A fundamental error is the assumption in the above, that "the Law" is a body of accumulated wisdom, i.e., that it, meaning we, learn from our mistakes and build in safeguards to protect against repetition.

That's not how our legal process works, is it?

In reality, the law changes only in reaction to fiascos, when public clamor for reform results in a legislative change.

Only then can elected judges risk making unpopular decisions.

Few elected judges relish releasing a demonized defendant on a 'technicality' such as a coerced confession or bad search, both constitutional rights, I might add.

One persons technicality is another's constitutional right.

Eventually an appellate court judge who enjoys a lifetime appointment, such as Judge Kleinfeld, above, can put the fiasco in a larger context and come down hard on short-sighted local authorities who find themselves engaging in witch-hunts.

But that comes after the witch-hunt has already occurred. Closing the barn door after the horse has escaped.

How do you prevent a witch-hunt in the first place?

There is only one way.

You must insist on a competent investigation conducted with integrity from the outset.

This makes the investigative process a political process, requiring courageous, intelligent political leadership from the mayor to the police chief, on down to the chief of detectives, the head of the investigating unit, and finally the investigator personally.

This is a tall order.

It requires good initial and in-service training, where competency and integrity are constantly enjoined on the investigator and his chief.

An investigation, however competent it may appear on the surface, is incompetent if conducted without integrity, of course.

Competency generally refers to hitting the obvious bases.

Integrity, as Feynman explains, means first not fooling yourself and YOU are the easiest person to fool, but leaning over backwards to show how you may be wrong.

You must ask what fact, if proved to exist, would falsify the theory on which this investigation stands.

And be prepared to drop the investigation when this fact turns up, as it does many times.

If you don't drop your search at this point, then you must modify your theory.

But do so in writing, in the investigative report that the world sees, and the defense.

Otherwise you're hiding something. Investigations conducted with integrity have nothing to hide.

Look at criminal investigation like a craps game in which the investigator is the dealer representing the House.

The House wins some and loses some, but in the long run the House always comes out ahead, given the number of rolls, the odds, and the statistical law of large numbers. In craps there's a saying.

"There are no secrets in a crap game."

Make that an honest crap game.

(One of this writer's accomplishments is that he dealt craps one summer in law school at Lake Tahoe.)

Where may the law accumulate knowledge and understanding?

In jury instructions, for one.

Jury instructions inform jurors of the legal rules for evaluating evidence.

Evidentiary, procedural, and substantive statutes prohibit or caution as to the use of certain sources of evidence: involuntary confessions, statements of accomplices, uncorroborated statements, and the like.

There's a lot of real and pop psychology masquerading as law in jury instructions, such as the one on 'consciousness of guilt' from evidence of flight.

Sometimes it applies and sometimes it doesn't, as where someone flees because of a well-founded fear of police, not actual guilt.

In statute law.

In opening and closing statement of counsel.

In expert testimony at trial.

In scrutinizing 'scientific' evidence under Daubert, and in California, Peo v. Kelly, of Kelly-Frye fame. Frye, the old federal case on admissibility of scientific evidence was overruled in the Daubert v. Merrill-Dow Pharmaceutical case.

Trial counsel for both sides are entitled to offer proposed jury instructions to the trial judge.

For the defense, rejection of a proposed jury instruction, on the consideration of evidence tailored to the circumstances of the case, for example, creates a legal issue for an appellate court to consider, write-on, and maybe reverse what the defense maintains is a false conviction. I'm sure there are other ways of encouraging the law to benefit from human experience.

Writing articles like this for the benefit of law students, lawyers, law professors, judges, and anyone else who may care to wade through it is another.

Yet, wading through masses of verbiage is what lawyers do, isn't it. It's why they invented "legal research," made even easier with computerized search techniques such as Google. All you have to do is Google on "Daubert," for example, and you've got it looked up.

It is worth noting that one of the uncoverers of criminal justice shortcomings is David Protess, a professor not of Constitutional Law, or Criminal Procedure, or Evidence, but of Journalism.

Along with college students having no law degrees or judicial honors, this professor of journalism shined such light on our death penalty system that it was brought to a screeching halt.

Why didn't a lawyer or judge do that?

It was a governor who did that.

Just as in Salem, 1692, when the governor's wife was falsely accused.

When bad things happen to good people, that's when good things start to happen in the law.

I'll give you another example.

When I was starting out, marijuana was considered a drug just like all the others. Little distinction was made among drugs. They were all bad and all crimes. Only criminals and black people used drugs, up in places like Harlem (I'm from New York) and in jazz joints.

Those were the people who accumulated criminal records that made it difficult to pursue straight callings, if the opportunity arose, which it often didn't. When the counter-culture movement arose at the time of the Vietnam War and young whites began tuning in, turning on, and dropping out, drug use became widespread among children of the upper and middle classes.

Lower class kids may have been too busy getting drafted and looking for work to be as heavily involved, although there were plenty enough of those, I suppose.

Suddenly white parents weren't happy about seeing their kids saddled with criminal records. This is just a passing phase, they argued.

I was a prosecutor then, prosecuting these kids, and heard the arguments.

 They'll outgrow it, parents, and lawyers argued.

Which was correct.

They did outgrow it.

In order to avoid criminalizing an entire white generation, marijuana was essentially decriminalized.

A lid of weed, an ounce or less, was a $100 infraction now.

Marijuana was no longer in the same category with other drugs.

When drugs went white, distinctions could be seen.

Legislation made the difference, not anything the courts or legal profession was doing outside the legislature.

The criminal justice system is the tail on the legal dog, not the head.

Boy, did I get that backwards as a kid admiring law.

I leave the rest to you... ***

*The California case that effectively outlawed the use of "anatomical dolls" when interviewing children in child sexual molestation investigations, as too suggestive of false accusations, in violation of Kelly-Frye, is In Re Amber B. __CA3__ (1987) November 09, 2004 in DEVEREAUX: OFFICIAL MANIAS | Permalink

November 09, 2004

DEVEREAUX: OFFICIAL MANIAS

July 28, 2000

A FIRST PERSON ACCOUNT:

BY ROBERT SHERIDAN

[I wrote this article in 2000 and it was published in the San Francisco Recorder. I've done some highlighting for ease of reference, cleaned up some of the usual glitches, and added an afterthought, so labeled.]

***

THE SIDEBAR QUOTE [below] FROM DEVEREAUX TRIGGERS THE ARTICLE:

***

THINK YOU’RE SAFE FROM BEING FRAMED BY SOCIAL WORKERS, DETECTIVES, DOCTORS, AND PROSECUTORS? THINK THE JUDGE CARES? THINK YOU CAN SUE WHEN YOU WIN? A FEDERAL CIVIL RIGHTS ACTION PERHAPS?

THINK AGAIN.

***
SIDEBAR QUOTE:

U.S. 9th Circuit Justice Andrew J. Kleinfeld wrote:

“Devereaux presented solid evidence that the defendants [police and “child advocates”] actively coerced witnesses to tell lies that would subject him to punishment for crimes he did not commit. For that wrong, there can be no immunity. Any government official should know that a person has a constitutional right not to be "framed."

... I think Devereaux's evidence suffices to make a case that defendants did fabricate evidence, by coercing the child witnesses to lie, in order to get Devereaux arrested and to remove the children from his home, ....

...the majority cites cases from the other circuits for the proposition that "there is no clearly established constitutional norm for interviewing child witnesses especially when they initially deny abuse." Myers v. Morris, arising out of the bizarre prosecutions in Jordan, Minnesota in 1983-84 does speak broadly about the uncertainty of the law regarding interrogation of children in sex abuse cases [then], but the facts as described in that case lack the critical element this one has, that the defendants who questioned the children knew or should have known that they were eliciting false accusations.

Use of children to satisfy adults' sexual cravings is a gravely serious crime, subject to very severe penalties. Manufacturing false evidence and using the criminal law system to ruin the lives of innocent people is also a gravely serious wrong. The more terrible the crime and penalties, the more terrible is the wrong of "framing" someone for it. The seriousness of a crime never justifies manufacturing evidence and convicting the innocent. Our system of justice does not allow for the position taken by the notorious Crusader general, "kill them all, God will know his own." A number of towns in the1980's and 1990's appear to have been engulfed by some sort of hysteria among government officials about sex and children. Wenatchee Washington may be among them. Its newly appointed child abuse detective on his first child sex molestation case, together with its much more experienced social workers, and its prosecutors, filed 29,727 charges of child abuse against 43 men and women. At the end of it all, though, few [charges] stood up in court except against the government's own witness, Linda Miller, the woman whose implausible (and, as soon proved, impossible) story of sex orgies lay at the foundation of the charges against many or most of the others. Devereaux eventually was allowed to plead guilty to a minor misdemeanor without any sexual connotation, for spanking a child on the buttocks with an open hand. Many of the others convicted in the Wenatchee sex prosecutions have had their convictions overturned on appeal. The Washington Court of Appeals has appointed a judge to conduct a formal inquiry into what went wrong in its criminal justice system. The affair has been popularly regarded as a Northwestern Salem, though it seems to have been more an official than a popular mania.

The doctrine of qualified immunity is useful when it enables government officials to do their duty with vigor, unafraid of enmeshment in lawsuits about new, doubtful or unclear constitutional claims they had no reason to know about. The doctrine would be harmful rather than useful if it protected government officials who deprived people of such fundamental and well known constitutional rights as the right not to have government officials manufacture false evidence against them. The vulnerability of government officials to lawsuits if they intentionally deprive people of their plain constitution rights is an important deterrent to official abuse of individual rights. Nor can officials be immunized because they act with good underlying motives, such as to protect children from sexual exploitation. "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Devereaux v. Perez, Abbey, et. al. (97-35781, July 12, 2000) 00 CDOS 5716

The sort of legal abuse decried above has been the major part of my practice, and life, for the better part of twenty years. It’s what my recent Foxglove, Sixty-Six Felony Counts, and several other dismissed prosecutions, were all about. The following account is more than war stories. It’s about how official manias occur.

ARTICLE:

OFFICIAL MANIAS

WHEN THE LAWS OF HUMAN NATURE OVERWHELM THE LAWS OF SOCIETY YOU CAN COUNT ON MAJOR TROUBLE

The first time I saw a false accusation of a very serious crime occurred in 1984 and I had trouble believing it was false. The high-school teacher was divorced and living with his teen-age daughter when she and her girlfriend, who occasionally slept over at the house, each accused him of sexually molesting them in separate incidents. Each act of sexual molestation is worth up to eight years in prison and they’re “stackable,” meaning they can pile up into a “Star Wars” sentence in no time.

“They’re both lying,” he was telling me, and I’m thinking, “Sure they are.” I’d spent seven years prosecuting before entering private practice, including several years assigned to the Rape Unit of the San Francisco District Attorneys Office. I hadn’t seen many innocent people who had two different accusers. Plus, Mr. Schoolteacher didn’t seem like a particularly “nice guy,” the way a lot of clients do after they’ve been accused of something serious.

Both girls admitted, however, making up their stories for different reasons.

The daughter made up her story in the mental ward of the hospital her father committed her on a 72-hour hold. A troubled kid, she flipped out when he’d tried to ground her after she started ignoring her homework. The nurse was asking what caused her to be committed and the girl said she didn’t want to say. Was it something sexual, the nurse wanted to know? Yes, the girl allowed. With whom? She didn’t want to say. Was it your father? Yes. Did he molest you? Yes. Did he do this and that? Yes and yes.

That was how the police investigation started. Leading questions by child-sex investigators were common. Police also had the other complainant as corroboration. In recanting, the girlfriend explained she was trying to get even after a quarrel with the daughter by claiming the father molested her.

I learned that just because your client has more than one accuser doesn’t mean you can reject his claim of innocence.

Later I represented another quite devoted father who said he was innocent. That launched me on what seems a long Odyssey.

The father had gone back to the Jerusalem, in what he called Palestine, to fetch a bride. Instead of accepting a traditional arranged marriage, he picked his own bride. When the marriage broke up a few years later and the judge let him keep his corner store and a couple of apartment units, the disappointed ex-wife became as bitter as the subject of “Hell hath no fury....”

Their daughter, three, who slept in the marital bed before the breakup, now slept with Dad during weekend visiting. Mother would ask her questions, like the nurse in the case, above, only more probing. The child learned what she wanted to hear. Eliciting, finally, what she thought were incriminating answers from the child after an afternoon and evening of questioning alone, mother, accompanied by her divorce lawyer, with whom she was having a secret affair, brought the child to San Francisco General Hospital. The child abuse intake unit’s brochure read, “Always believe children who report sexual abuse,” “Children NEVER lie about this.”

The child, seated on her mother’s lap, condemned her father while being interviewed by a nurse who used “anatomical dolls,” later outlawed in Amber B.,* on Kelly-Frye grounds as pseudo-science, to suggest sexual activity that never occurred. There was no vaginal examination although intercourse was one of a list of crimes the child agreed [by nodding while being held in her mother's arms as the young uniformed cop questioned her by asking leading questions as to whether this and that had occurred. Mom was allowed to translate verbal answers then and to Juvenile detectives.]

The criminal trial in San Francisco, lasted a month. Sixty-six counts of sexual molestation were charged, based on two counts per weekend for thirty weekends of visitation. The district attorney offered to dismiss sixty-five felony counts if my client would plead guilty to just one count. The judge offered not to send him to jail. The father refused, on the grounds he was innocent and would never see his daughter again. That’s the sort of thing that puts a little pressure on an attorney.

The jury hung. After six months of negotiating the DA agreed to dismiss the entire case. We’d let the Family Court (in San Mateo) appoint a psychiatrist to sort the family out. The price was that the father had to agree not to see his daughter meanwhile. Two years later, after talking to all the parties, the court-appointed psychiatrist concluded the charges were false. They were, he reported, the product of the mother’s questioning and the lengthy process of alienation from the father that she had put the child through.

Good, I thought, we’ll move to restore visitation, at last. Mother had married her attorney, who she’d lied about not seeing socially. The judge, however, concluded that since the child had settled in with mother and her attorney, it would be too disturbing to require her to resume visitation with her father. The judge then terminated the father’s parental rights and he’s never seen his daughter again. She’s now eighteen. He lost his business and the apartment units, but remarried and has two sons. He kept his sanity throughout the long ordeal by asking, “What’s wrong with these people, are they crazy?” The people he was referring to were us, the professionals who make the system run.

This taught me a lot about us.

I used to think that we were smarter than, say, those “stupid,” “superstitious,” people in Salem, three hundred years ago, who hanged their neighbors as witches. I no longer think that. They consulted their doctor. He said the girls were “bewitched.” After that they were off to the races, just as when our doctors say the equally magic words, “child abuse.” When medical misdiagnosis becomes the basis for criminal prosecution, there’s trouble ahead, for doctors make a lot of bum calls.

Witch-hunts, I thought, were a thing of the past. I no longer think so. [See Afterthought, below.]

We know pretty much all there is to know about most things, except for the physics of the atom, the universe, and how to cure the flu, I thought. I no longer think so.

The law is an instrument for applying reason. The law accumulates wisdom, learned over the years through bitter experience, to avoid repeating the same mistakes. I no longer think so.

District attorneys and judges can be counted on to do the right thing if you point out what the right thing is, I thought. I was way wrong about this.

Medical experts can be counted on to do the right thing. This is one of the biggest mistakes I ever made. The medical profession almost has the legal profession beat when it comes to denying its shortcomings.

I began telling friends, colleagues, and professional adversaries that something was wrong. People were believing nonsense. Suddenly I had bad breath. Few wanted to hear about false accusations. They didn’t like my messing with their preconception of law and medicine as knowledgeable, fair, and just, institutions. They didn’t want to hear that some accused child molester was innocent. They were all guilty, was the prevailing attitude. They must have done something to get themselves accused.

Sure, just like the witches of Salem, I thought. You had to prove innocence, otherwise you were presumed guilty. Proving innocence is difficult. There’s almost always some doubt.

Suddenly, I was out of step with the mainstream. Look at this, I’ve become a radical, just like those hippie demonstrators against the war I used to prosecute for walking into nightsticks with their heads at Union Square. My old sparring partners would get a laugh. I used to be a true believer in the forces of law and order. Now I was trying to persuade people who thought the way I used to think to think differently. That’ll make you think.

I didn’t give a damn what people thought who didn’t share my insights. They weren’t up to speed yet. Getting ahead of the knowledge curve was not a lot of fun, but it did make life a lot more challenging. I wrote articles and gave talks to judicial and bar seminars about what I’d been learning.

Confirmation appeared in collapsed cases such as Jordan, Minnesota and Kern County, McMartin, Little Rascals, and a host of other fiasco cases. The book to read is Edward Humes’s Mean Justice (Simon & Schuster, N.Y., 1999).

I represented a sixty-eight year old mother, who’d sent her daughters to parochial school, one of whom, with the cooperation of the other, was now suing her and their father for abusing them as kids in a so-called Satanic ritual, three hundred years after Salem. Daddy, a responsible government official, supposedly raped his daughters and dismembered a host of other children, then buried the bodies in the basement. Mother, it was claimed, lifted not a finger to interfere. But no children had disappeared. Now the daughters were adults. One spent a lot of time in a sexualized commune in the Northwest. The suing daughter “recovered” her “repressed” memory during a talk-therapy session. The other was too frail, emotionally, to be deposed.

Police interviewed the current homeowner who said he’d dug up the basement to install a new furnace but didn’t find any bodies. Elsewhere, the FBI refused to dig up its parking lot to look for the rest of the bodies supposedly buried there, in a former yard of the family.

The suggestibility of participants in group therapy with other distraught women, led by credulous talk-therapists, was being noted in the literature. The suggestibility of children to interviewers with agendas was being investigated. Talk therapy was put under the microscope. The results weren’t pretty.

The knowledge gap between what I’d written about and the rest of the world was discovering was being filled with research and reports. The reports were saying, “Watch out what you tell kids, for they’re liable to read you like a book and feed it back to you, and then you’re going to believe what you’ve been spouting.” That’s how the children of Salem learned all about the Devil and his supposed witches and they wound up hanging the neighbors. Fortunately, they were unpopular neighbors, so it was okay. And they had trials first!

Talk therapists began to be sued for suggesting false stories to their clients and causing all sorts of trouble to innocent family members. The verdicts began running against the therapists.

The Legislature, responding to the child abuse phenomenon, extended the statute of limitations, provided there was corroboration, but expressly outlawed corroboration provided by talk-therapist opinion. PC 803(g).

The courts, however, our protection against false accusation, still hadn’t spoken. The issue was too hot, politically. Child “victims” outweighed apple-pie and the flag.

I collected sayings to illustrate points. Some I invented. Hammering thoughts into nuggets is useful.

How could a three-year-old fool a nurse, a doctor, a juvenile detective, a district attorney, a magistrate, and nine jurors, I wondered? She didn’t, I realized. Children don’t fool adults, adults fool themselves. That’s how Salem got started. That’s what a panic will do. That’s how West Coast Americans of Japanese Ancestry were interned after Pearl Harbor.

Police and public officials under investigation for misconduct often holler “witch-hunt.” They know all about witch-hunts when it comes to them. They don’t know what you’re talking about when it comes to you.

I read all about witch-hunts, and defined what they were.

A witch-hunt is where you pursue the culprit before finding out there was no crime. Salem is the best example, because unless you believe in the Devil the only real crime was the legal process itself. It was the same as ours. When the heat is on, the safeguards evaporate. The law of human nature overwhelms the laws of man.

Richard Jewell, in Atlanta, found the bomb and warned the people. A genuine hero was treated as a witch. That’s another kind of witch-hunt, where you go after the wrong guy because he’s all you’ve got, and you’re too lazy to find the real bad guy. So you paint the wrong guy black. Then no one cares. Since everyone is morally impure except the witch-hunter, it isn’t hard to find.

Richard Feynman was a great inspiration. He is the late Nobel laureate in physics who demonstrated, using a piece of rubber in a glass of ice-water at the hearing, that the cause of the Challenger disaster was frozen O-rings. He was a well-developed skeptic of the untested claims of so-called experts. “Surely You’re Joking Mr. Feynman,” his book, is a gold mine of how not to think, particularly the chapter called “Cargo Cult Science.”

Cargo Cult Law and Medicine was what I was fighting. Feynman warned scientific investigators, “The first principle is that you must not fool yourself, but remember, you are the easiest person to fool.”

I loved that because I was running into lawyers and doctors who did this all the time. I had to guard against doing it myself. I’ve been fooled, both by myself, and by clients. So have you. We get fooled when we’re told what we want to believe.

In the recently dismissed Foxglove murder conspiracy case, three counts, long before the indictment and long before receiving any discovery, I told reporters, “The poison-murder story is fascinating, but missing a couple of things, like poison and murder.”

Many people were not inclined to accept that. Court clerks told me they hoped my client was convicted. Two hours into the cross-examination of San Francisco’s Chief Medical Examiner, a medical doctor, pathologist, teacher, and consulting expert in his field the case was over. His lab test result, he was forced to acknowledge, was meaningless. His opinion, based on it, was wrong. The district attorney was forced to dismiss a million-dollar murder-conspiracy case after my client had spent 32 months in jail.

Wisdom is knowing what not to believe.

Why was the law behind the curve of critical thinking, I wondered. Where were Detective Columbo, with all his questions, and Rumpole of the Bailey, with his man-of-the-world attitude, when we needed them?

Why were social workers, attorneys and judges so credulous of children? Do children have a monopoly on truth? Not in Juvenile Court, they don’t. But when they claim to have been molested, they do. “Child advocates” proclaimed that children deserve to be believed. Only the truth deserved to believed, I thought.

The best answer I came across as to why it seemed the law was playing catch-up was provided by Prof. Jacques Barzun, 93, of Columbia University, as he described the difficulty experienced in putting the beliefs of the Middle Ages behind us:

"The road to the present was hard and long because the old systems were good. They had consistency and completeness; only at a few points did contrary facts or gaps in explanation threaten their validity.

The Middle Ages did not neglect observation. They examined the heavens minutely...and the earth eagerly for what it could yield...

But observation is rarely neutral; it rests on pre-conceptions and pre-perceptions; and it was these that had to change.”

FROM DAWN TO DECADENCE, 500 Years of Western Cultural Life, 1500 to Present. Harper Collins, N.Y. 2000, pp. 192, 193.

Professionals in law and medicine were lagging because we cannot not see what we cannot believe.
Few could believe that children, under suggestion, would report incorrectly on sexual matters they could know nothing about unless they experienced it.

Few could believe that anxious parents and experienced investigators would suggest and mislead so badly.

Few could believe that tragic results were undeserved, considering how morally impure the accuseds were in other respects.

Moral impurity was used to excuse unwarranted punishment on other grounds.

Preconceptions were getting in the way of clear, hard, thinking, and had to change. You don’t want to get too far in front of the preconceptions of the authorities or you’ll be in for the fight of your life.

Fiasco cases are caused by the failure to conduct a competent investigation. To the best of my knowledge, we do not have anything we can fairly call a “due process right to a competent investigation.” Justice Kleinfeld, in his dissent to Devereaux, calls this “a Constitutional right not to be framed.”

Framing the innocent is a perversion of due process.

The key to killing a false accusation is a competent investigation. Don’t expect to find it in the midst of a popular delusion or mania. Collective madness is thrilling to behold, but not susceptible to reason.

What you must do, should you find yourself like the Chinese man in front of the tank at Tiananmen Square, is to oversee a competent counter-investigation.

It is difficult, if not impossible, for a court to short circuit an ill-founded case built on an incompetent investigation. Political, as well as legal, realities militate against it. Summary judgment is not available in disputed cases of fact, which most false accusation cases are. Just because your client is sued for allowing a UFO to land in his yard to kidnap and molest the plaintiff does not mean you can avoid going through a long, unpleasant process.

The usefulness of preliminary hearings to weed out groundless criminal charges has been severely curtailed by legislation. By the time you get to jury, so much time, expense, effort, disruption, and harassment have occurred that innocent people, to avoid prolonged further custody and the risk of further miscarriage of justice, the system having exposed itself to them, will submit to an extorted plea of guilty to something they didn’t do, just as the “witches” in Salem did. Some courts will coldly participate in this extortion to avoid embarrassment to the authorities, who are never supposed to be wrong, over what is certain to be the public display of a sure miscarriage of justice.

Plea bargains are fine when you’re guilty, but not if you’re innocent. No one is treated as innocent down at the Hall, especially the defendants. If they were not morally impure when they entered, they will be when they leave.

Perhaps you’ve wondered why we seem to be seeing so many miscarriage of justice scandals, lately, such as the overturning of rape or death-penalty murder convictions after years spent in prison as an innocent man?

It starts with case-building masquerading as investigation. In its true sense, investigation means honestly trying to find out what happened. If you skip the “honestly trying to find out” part and jump right to case-building, which is what happens in the exciting cases, there’s a pretty good chance of nailing the wrong guy. Here’s how one experienced student of the subject put it:

"It’s a textbook case of a miscarriage of justice where you have the lethal recipe of police and prosecution misconduct, defense ineptitude, and judicial indifference."

By David Protess, Professor of Journalism, Northwestern University, about a Texas death penalty conviction his journalism students are reviewing. He and his students have uncovered evidence leading to the exoneration of seven men convicted of murder in Illinois including three on death row. Conservative, Republican, Illinois governor George Ryan has suspended all executions pending a study. S.F. Examiner 6/30/00

You think this can’t happen here?

• Police Misconduct

• Prosecutor Misconduct

• Medical Examiner Ineptitude

• Judicial Indifference

This explains Foxglove, where the Medical Examiner blew his only lab test. When he told San Francisco police that he’d found unprescribed digitalis, from the Foxglove plant, in someone’s blood, he triggered a six-year witch-hunt. Police inspectors compounded the problem by getting involved in a scheme to sell the story to Hollywood. If you plan to become a hero and get rich before you’ve cracked the case, there’s going to be something wrong with your case when you bring it. By then, you will never be open to the idea that you’ve gone down the wrong path.

After the court holds your client in custody for 32 months without bail on a poison-murder charge that’s slowly collapsing, it may not be a bad idea to make a deal for credit for time served to get the pack off your client’s back sooner rather than later. That’s probably why Devereaux, in the opinion at sidebar, pled guilty to an insignificant (except as a face-saver) charge that seems to have little relation to the main thrust of the investigation. In the prize-fight ring of ideas, forcing the other guy to throw in the towel is as good as it gets.

Justice Kleinfeld took the bull by the horns in the Wenatchee Witch-Hunt. I’ve not seen another opinion like it. It is almost (because it’s a dissent) an official validation of what many thoughtful people have been saying for over two decades.

Today it’s a dissent.

Tomorrow, if the truth means anything at all, it will be law.

Robert Sheridan

Mr. Sheridan, a graduate of N.Y.U. Law School, has been a California attorney since 1967.

***

AFTERTHOUGHT, NOVEMBER 9, 2004

FUNDAMENTAL ERROR

A fundamental error is the assumption in the above, that "the Law" is a body of accumulated wisdom, i.e., that it, meaning we, learn from our mistakes and build in safeguards to protect against repetition.

That's not how our legal process works, is it?

In reality, the law changes only in reaction to fiascos, when public clamor for reform results in a legislative change. Only then can elected judges risk making unpopular decisions. Few elected judges relish releasing a demonized defendant on a 'technicality' such as a coerced confession or bad search, both constitutional rights, I might add. One persons technicality is another's constitutional right.

Eventually an appellate court judge who enjoys a lifetime appointment, such as Judge Kleinfeld, above, can put the fiasco in a larger context and come down hard on short-sighted local authorities who find themselves engaging in witch-hunts.

But that comes after the witch-hunt has already occurred. Closing the barn door after the horse has escaped.

How do you prevent a witch-hunt in the first place?

There is only one way.

You must insist on a competent investigation conducted with integrity from the outset.

This makes the investigative process a political process, requiring courageous, intelligent political leadership from the mayor to the police chief, on down to the chief of detectives, the head of the investigating unit, and finally the investigator personally.

This is a tall order.

It requires good initial and in-service training, where competency and integrity are constantly enjoined on the investigator and his chief.

An investigation, however competent it may appear on the surface, is incompetent if conducted without integrity, of course.

Competency generally refers to hitting the obvious bases. Integrity, as Feynman explains, means first not fooling yourself and YOU are the easiest person to fool, but leaning over backwards to show how you may be wrong. You must ask what fact, if proved to exist, would falsify the theory on which this investigation stands. And be prepared to drop the investigation when this fact turns up, as it does many times.

If you don't drop your search at this point, then you must modify your theory. But do so in writing, in the investigative report that the world sees, and the defense. Otherwise you're hiding something. Investigations conducted with integrity have nothing to hide.

Look at criminal investigation like a craps game in which the investigator is the dealer representing the House. The House wins some and loses some, but in the long run the House always comes out ahead, given the number of rolls, the odds, and the statistical law of large numbers.

In craps there's a saying. "There are no secrets in a crap game." Make that an honest crap game. (One of this writer's accomplishments is that he dealt craps one summer in law school at Lake Tahoe.)

Where may the law accumulate knowledge and understanding?

In jury instructions, for one.

Jury instructions inform jurors of the legal rules for evaluating evidence. Evidentiary, procedural, and substantive statutes prohibit or caution as to the use of certain sources of evidence: involuntary confessions, statements of accomplices, uncorroborated statements, and the like. There's a lot of real and pop psychology masquerading as law in jury instructions, such as the one on 'consciousness of guilt' from evidence of flight. Sometimes it applies and sometimes it doesn't, as where someone flees because of a well-founded fear of police, not actual guilt.

In statute law.

In opening and closing statement of counsel.

In expert testimony at trial.

In scrutinizing 'scientific' evidence under Daubert, and in California, Peo v. Kelly, of Kelly-Frye fame. Frye, the old federal case on admissibility of scientific evidence was overruled in the Daubert v. Merrill-Dow Pharmaceutical case.

Trial counsel for both sides are entitled to offer proposed jury instructions to the trial judge. For the defense, rejection of a proposed jury instruction, on the consideration of evidence tailored to the circumstances of the case, for example, creates a legal issue for an appellate court to consider, write-on, and maybe reverse what the defense maintains is a false conviction.

I'm sure there are other ways of encouraging the law to benefit from human experience. Writing articles like this for the benefit of law students, lawyers, law professors, judges, and anyone else who may care to wade through it is another. Yet, wading through masses of verbiage is what lawyers do, isn't it. It's why they invented "legal research," made even easier with computerized search techniques such as Google. All you have to do is Google on "Daubert," for example, and you've got it looked up.

It is worth noting that one of the uncoverers of criminal justice shortcomings is David Protess, a professor not of Constitutional Law, or Criminal Procedure, or Evidence, but of Journalism. Along with college students having no law degrees or judicial honors, this professor of journalism shined such light on our death penalty system that it was brought to a screeching halt.

Why didn't a lawyer or judge do that?

It was a governor who did that. Just as in Salem, 1692, when the governor's wife was falsely accused.

When bad things happen to good people, that's when good things start to happen in the law.

I'll give you another example. When I was starting out, marijuana was considered a drug just like all the others. Little distinction was made among drugs. They were all bad and all crimes. Only criminals and black people used drugs, up in places like Harlem (I'm from New York) and in jazz joints. Those were the people who accumulated criminal records that made it difficult to pursue straight callings, if the opportunity arose, which it often didn't.

When the counter-culture movement arose at the time of the Vietnam War and young whites began tuning in, turning on, and dropping out, drug use became widespread among children of the upper and middle classes. Lower class kids may have been too busy getting drafted and looking for work to be as heavily involved, although there were plenty enough of those, I suppose.

Suddenly white parents weren't happy about seeing their kids saddled with criminal records. This is just a passing phase, they argued. I was a prosecutor then, prosecuting these kids, and heard the arguments. They'll outgrow it, parents, and lawyers argued. Which was correct. They did outgrow it.

In order to avoid criminalizing an entire white generation, marijuana was essentially decriminalized. A lid of weed, an ounce or less, was a $100 infraction now. Marijuana was no longer in the same category with other drugs. When drugs went white, distinctions could be seen.

Legislation made the difference, not anything the courts or legal profession was doing outside the legislature. The criminal justice system is the tail on the legal dog, not the head.

Boy, did I get that backwards as a kid admiring law.

I leave the rest to you...

***

*The California case that effectively outlawed the use of "anatomical dolls" when interviewing children in child sexual molestation investigations, as too suggestive of false accusations, in violation of Kelly-Frye, is In Re Amber B. __CA3__ (1987)

November 09, 2004 in DEVEREAUX: OFFICIAL MANIAS | Permalink

July 28, 2000

A FIRST PERSON ACCOUNT:

BY ROBERT SHERIDAN

[I wrote this article in 2000 and it was published in the San Francisco Recorder. I've done some highlighting for ease of reference, cleaned up some of the usual glitches, and added an afterthought, so labeled.]

***

THE SIDEBAR QUOTE [below] FROM DEVEREAUX TRIGGERS THE ARTICLE:

***

THINK YOU’RE SAFE FROM BEING FRAMED BY SOCIAL WORKERS, DETECTIVES, DOCTORS, AND PROSECUTORS? THINK THE JUDGE CARES? THINK YOU CAN SUE WHEN YOU WIN? A FEDERAL CIVIL RIGHTS ACTION PERHAPS?

THINK AGAIN.

***
SIDEBAR QUOTE:

U.S. 9th Circuit Justice Andrew J. Kleinfeld wrote:

“Devereaux presented solid evidence that the defendants [police and “child advocates”] actively coerced witnesses to tell lies that would subject him to punishment for crimes he did not commit. For that wrong, there can be no immunity. Any government official should know that a person has a constitutional right not to be "framed."

... I think Devereaux's evidence suffices to make a case that defendants did fabricate evidence, by coercing the child witnesses to lie, in order to get Devereaux arrested and to remove the children from his home, ....

...the majority cites cases from the other circuits for the proposition that "there is no clearly established constitutional norm for interviewing child witnesses especially when they initially deny abuse." Myers v. Morris, arising out of the bizarre prosecutions in Jordan, Minnesota in 1983-84 does speak broadly about the uncertainty of the law regarding interrogation of children in sex abuse cases [then], but the facts as described in that case lack the critical element this one has, that the defendants who questioned the children knew or should have known that they were eliciting false accusations.

Use of children to satisfy adults' sexual cravings is a gravely serious crime, subject to very severe penalties. Manufacturing false evidence and using the criminal law system to ruin the lives of innocent people is also a gravely serious wrong. The more terrible the crime and penalties, the more terrible is the wrong of "framing" someone for it. The seriousness of a crime never justifies manufacturing evidence and convicting the innocent. Our system of justice does not allow for the position taken by the notorious Crusader general, "kill them all, God will know his own." A number of towns in the1980's and 1990's appear to have been engulfed by some sort of hysteria among government officials about sex and children. Wenatchee Washington may be among them. Its newly appointed child abuse detective on his first child sex molestation case, together with its much more experienced social workers, and its prosecutors, filed 29,727 charges of child abuse against 43 men and women. At the end of it all, though, few [charges] stood up in court except against the government's own witness, Linda Miller, the woman whose implausible (and, as soon proved, impossible) story of sex orgies lay at the foundation of the charges against many or most of the others. Devereaux eventually was allowed to plead guilty to a minor misdemeanor without any sexual connotation, for spanking a child on the buttocks with an open hand. Many of the others convicted in the Wenatchee sex prosecutions have had their convictions overturned on appeal. The Washington Court of Appeals has appointed a judge to conduct a formal inquiry into what went wrong in its criminal justice system. The affair has been popularly regarded as a Northwestern Salem, though it seems to have been more an official than a popular mania.

The doctrine of qualified immunity is useful when it enables government officials to do their duty with vigor, unafraid of enmeshment in lawsuits about new, doubtful or unclear constitutional claims they had no reason to know about. The doctrine would be harmful rather than useful if it protected government officials who deprived people of such fundamental and well known constitutional rights as the right not to have government officials manufacture false evidence against them. The vulnerability of government officials to lawsuits if they intentionally deprive people of their plain constitution rights is an important deterrent to official abuse of individual rights. Nor can officials be immunized because they act with good underlying motives, such as to protect children from sexual exploitation. "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Devereaux v. Perez, Abbey, et. al. (97-35781, July 12, 2000) 00 CDOS 5716

The sort of legal abuse decried above has been the major part of my practice, and life, for the better part of twenty years. It’s what my recent Foxglove, Sixty-Six Felony Counts, and several other dismissed prosecutions, were all about. The following account is more than war stories. It’s about how official manias occur.

ARTICLE:

OFFICIAL MANIAS

WHEN THE LAWS OF HUMAN NATURE OVERWHELM THE LAWS OF SOCIETY YOU CAN COUNT ON MAJOR TROUBLE

The first time I saw a false accusation of a very serious crime occurred in 1984 and I had trouble believing it was false. The high-school teacher was divorced and living with his teen-age daughter when she and her girlfriend, who occasionally slept over at the house, each accused him of sexually molesting them in separate incidents. Each act of sexual molestation is worth up to eight years in prison and they’re “stackable,” meaning they can pile up into a “Star Wars” sentence in no time.

“They’re both lying,” he was telling me, and I’m thinking, “Sure they are.” I’d spent seven years prosecuting before entering private practice, including several years assigned to the Rape Unit of the San Francisco District Attorneys Office. I hadn’t seen many innocent people who had two different accusers. Plus, Mr. Schoolteacher didn’t seem like a particularly “nice guy,” the way a lot of clients do after they’ve been accused of something serious.

Both girls admitted, however, making up their stories for different reasons.

The daughter made up her story in the mental ward of the hospital her father committed her on a 72-hour hold. A troubled kid, she flipped out when he’d tried to ground her after she started ignoring her homework. The nurse was asking what caused her to be committed and the girl said she didn’t want to say. Was it something sexual, the nurse wanted to know? Yes, the girl allowed. With whom? She didn’t want to say. Was it your father? Yes. Did he molest you? Yes. Did he do this and that? Yes and yes.

That was how the police investigation started. Leading questions by child-sex investigators were common. Police also had the other complainant as corroboration. In recanting, the girlfriend explained she was trying to get even after a quarrel with the daughter by claiming the father molested her.

I learned that just because your client has more than one accuser doesn’t mean you can reject his claim of innocence.

Later I represented another quite devoted father who said he was innocent. That launched me on what seems a long Odyssey.

The father had gone back to the Jerusalem, in what he called Palestine, to fetch a bride. Instead of accepting a traditional arranged marriage, he picked his own bride. When the marriage broke up a few years later and the judge let him keep his corner store and a couple of apartment units, the disappointed ex-wife became as bitter as the subject of “Hell hath no fury....”

Their daughter, three, who slept in the marital bed before the breakup, now slept with Dad during weekend visiting. Mother would ask her questions, like the nurse in the case, above, only more probing. The child learned what she wanted to hear. Eliciting, finally, what she thought were incriminating answers from the child after an afternoon and evening of questioning alone, mother, accompanied by her divorce lawyer, with whom she was having a secret affair, brought the child to San Francisco General Hospital. The child abuse intake unit’s brochure read, “Always believe children who report sexual abuse,” “Children NEVER lie about this.”

The child, seated on her mother’s lap, condemned her father while being interviewed by a nurse who used “anatomical dolls,” later outlawed in Amber B.,* on Kelly-Frye grounds as pseudo-science, to suggest sexual activity that never occurred. There was no vaginal examination although intercourse was one of a list of crimes the child agreed [by nodding while being held in her mother's arms as the young uniformed cop questioned her by asking leading questions as to whether this and that had occurred. Mom was allowed to translate verbal answers then and to Juvenile detectives.]

The criminal trial in San Francisco, lasted a month. Sixty-six counts of sexual molestation were charged, based on two counts per weekend for thirty weekends of visitation. The district attorney offered to dismiss sixty-five felony counts if my client would plead guilty to just one count. The judge offered not to send him to jail. The father refused, on the grounds he was innocent and would never see his daughter again. That’s the sort of thing that puts a little pressure on an attorney.

The jury hung. After six months of negotiating the DA agreed to dismiss the entire case. We’d let the Family Court (in San Mateo) appoint a psychiatrist to sort the family out. The price was that the father had to agree not to see his daughter meanwhile. Two years later, after talking to all the parties, the court-appointed psychiatrist concluded the charges were false. They were, he reported, the product of the mother’s questioning and the lengthy process of alienation from the father that she had put the child through.

Good, I thought, we’ll move to restore visitation, at last. Mother had married her attorney, who she’d lied about not seeing socially. The judge, however, concluded that since the child had settled in with mother and her attorney, it would be too disturbing to require her to resume visitation with her father. The judge then terminated the father’s parental rights and he’s never seen his daughter again. She’s now eighteen. He lost his business and the apartment units, but remarried and has two sons. He kept his sanity throughout the long ordeal by asking, “What’s wrong with these people, are they crazy?” The people he was referring to were us, the professionals who make the system run.

This taught me a lot about us.

I used to think that we were smarter than, say, those “stupid,” “superstitious,” people in Salem, three hundred years ago, who hanged their neighbors as witches. I no longer think that. They consulted their doctor. He said the girls were “bewitched.” After that they were off to the races, just as when our doctors say the equally magic words, “child abuse.” When medical misdiagnosis becomes the basis for criminal prosecution, there’s trouble ahead, for doctors make a lot of bum calls.

Witch-hunts, I thought, were a thing of the past. I no longer think so. [See Afterthought, below.]

We know pretty much all there is to know about most things, except for the physics of the atom, the universe, and how to cure the flu, I thought. I no longer think so.

The law is an instrument for applying reason. The law accumulates wisdom, learned over the years through bitter experience, to avoid repeating the same mistakes. I no longer think so.

District attorneys and judges can be counted on to do the right thing if you point out what the right thing is, I thought. I was way wrong about this.

Medical experts can be counted on to do the right thing. This is one of the biggest mistakes I ever made. The medical profession almost has the legal profession beat when it comes to denying its shortcomings.

I began telling friends, colleagues, and professional adversaries that something was wrong. People were believing nonsense. Suddenly I had bad breath. Few wanted to hear about false accusations. They didn’t like my messing with their preconception of law and medicine as knowledgeable, fair, and just, institutions. They didn’t want to hear that some accused child molester was innocent. They were all guilty, was the prevailing attitude. They must have done something to get themselves accused.

Sure, just like the witches of Salem, I thought. You had to prove innocence, otherwise you were presumed guilty. Proving innocence is difficult. There’s almost always some doubt.

Suddenly, I was out of step with the mainstream. Look at this, I’ve become a radical, just like those hippie demonstrators against the war I used to prosecute for walking into nightsticks with their heads at Union Square. My old sparring partners would get a laugh. I used to be a true believer in the forces of law and order. Now I was trying to persuade people who thought the way I used to think to think differently. That’ll make you think.

I didn’t give a damn what people thought who didn’t share my insights. They weren’t up to speed yet. Getting ahead of the knowledge curve was not a lot of fun, but it did make life a lot more challenging. I wrote articles and gave talks to judicial and bar seminars about what I’d been learning.

Confirmation appeared in collapsed cases such as Jordan, Minnesota and Kern County, McMartin, Little Rascals, and a host of other fiasco cases. The book to read is Edward Humes’s Mean Justice (Simon & Schuster, N.Y., 1999).

I represented a sixty-eight year old mother, who’d sent her daughters to parochial school, one of whom, with the cooperation of the other, was now suing her and their father for abusing them as kids in a so-called Satanic ritual, three hundred years after Salem. Daddy, a responsible government official, supposedly raped his daughters and dismembered a host of other children, then buried the bodies in the basement. Mother, it was claimed, lifted not a finger to interfere. But no children had disappeared. Now the daughters were adults. One spent a lot of time in a sexualized commune in the Northwest. The suing daughter “recovered” her “repressed” memory during a talk-therapy session. The other was too frail, emotionally, to be deposed.

Police interviewed the current homeowner who said he’d dug up the basement to install a new furnace but didn’t find any bodies. Elsewhere, the FBI refused to dig up its parking lot to look for the rest of the bodies supposedly buried there, in a former yard of the family.

The suggestibility of participants in group therapy with other distraught women, led by credulous talk-therapists, was being noted in the literature. The suggestibility of children to interviewers with agendas was being investigated. Talk therapy was put under the microscope. The results weren’t pretty.

The knowledge gap between what I’d written about and the rest of the world was discovering was being filled with research and reports. The reports were saying, “Watch out what you tell kids, for they’re liable to read you like a book and feed it back to you, and then you’re going to believe what you’ve been spouting.” That’s how the children of Salem learned all about the Devil and his supposed witches and they wound up hanging the neighbors. Fortunately, they were unpopular neighbors, so it was okay. And they had trials first!

Talk therapists began to be sued for suggesting false stories to their clients and causing all sorts of trouble to innocent family members. The verdicts began running against the therapists.

The Legislature, responding to the child abuse phenomenon, extended the statute of limitations, provided there was corroboration, but expressly outlawed corroboration provided by talk-therapist opinion. PC 803(g).

The courts, however, our protection against false accusation, still hadn’t spoken. The issue was too hot, politically. Child “victims” outweighed apple-pie and the flag.

I collected sayings to illustrate points. Some I invented. Hammering thoughts into nuggets is useful.

How could a three-year-old fool a nurse, a doctor, a juvenile detective, a district attorney, a magistrate, and nine jurors, I wondered? She didn’t, I realized. Children don’t fool adults, adults fool themselves. That’s how Salem got started. That’s what a panic will do. That’s how West Coast Americans of Japanese Ancestry were interned after Pearl Harbor.

Police and public officials under investigation for misconduct often holler “witch-hunt.” They know all about witch-hunts when it comes to them. They don’t know what you’re talking about when it comes to you.

I read all about witch-hunts, and defined what they were.

A witch-hunt is where you pursue the culprit before finding out there was no crime. Salem is the best example, because unless you believe in the Devil the only real crime was the legal process itself. It was the same as ours. When the heat is on, the safeguards evaporate. The law of human nature overwhelms the laws of man.

Richard Jewell, in Atlanta, found the bomb and warned the people. A genuine hero was treated as a witch. That’s another kind of witch-hunt, where you go after the wrong guy because he’s all you’ve got, and you’re too lazy to find the real bad guy. So you paint the wrong guy black. Then no one cares. Since everyone is morally impure except the witch-hunter, it isn’t hard to find.

Richard Feynman was a great inspiration. He is the late Nobel laureate in physics who demonstrated, using a piece of rubber in a glass of ice-water at the hearing, that the cause of the Challenger disaster was frozen O-rings. He was a well-developed skeptic of the untested claims of so-called experts. “Surely You’re Joking Mr. Feynman,” his book, is a gold mine of how not to think, particularly the chapter called “Cargo Cult Science.”

Cargo Cult Law and Medicine was what I was fighting. Feynman warned scientific investigators, “The first principle is that you must not fool yourself, but remember, you are the easiest person to fool.”

I loved that because I was running into lawyers and doctors who did this all the time. I had to guard against doing it myself. I’ve been fooled, both by myself, and by clients. So have you. We get fooled when we’re told what we want to believe.

In the recently dismissed Foxglove murder conspiracy case, three counts, long before the indictment and long before receiving any discovery, I told reporters, “The poison-murder story is fascinating, but missing a couple of things, like poison and murder.”

Many people were not inclined to accept that. Court clerks told me they hoped my client was convicted. Two hours into the cross-examination of San Francisco’s Chief Medical Examiner, a medical doctor, pathologist, teacher, and consulting expert in his field the case was over. His lab test result, he was forced to acknowledge, was meaningless. His opinion, based on it, was wrong. The district attorney was forced to dismiss a million-dollar murder-conspiracy case after my client had spent 32 months in jail.

Wisdom is knowing what not to believe.

Why was the law behind the curve of critical thinking, I wondered. Where were Detective Columbo, with all his questions, and Rumpole of the Bailey, with his man-of-the-world attitude, when we needed them?

Why were social workers, attorneys and judges so credulous of children? Do children have a monopoly on truth? Not in Juvenile Court, they don’t. But when they claim to have been molested, they do. “Child advocates” proclaimed that children deserve to be believed. Only the truth deserved to believed, I thought.

The best answer I came across as to why it seemed the law was playing catch-up was provided by Prof. Jacques Barzun, 93, of Columbia University, as he described the difficulty experienced in putting the beliefs of the Middle Ages behind us:

"The road to the present was hard and long because the old systems were good. They had consistency and completeness; only at a few points did contrary facts or gaps in explanation threaten their validity.

The Middle Ages did not neglect observation. They examined the heavens minutely...and the earth eagerly for what it could yield...

But observation is rarely neutral; it rests on pre-conceptions and pre-perceptions; and it was these that had to change.”

FROM DAWN TO DECADENCE, 500 Years of Western Cultural Life, 1500 to Present. Harper Collins, N.Y. 2000, pp. 192, 193.

Professionals in law and medicine were lagging because we cannot not see what we cannot believe.
Few could believe that children, under suggestion, would report incorrectly on sexual matters they could know nothing about unless they experienced it.

Few could believe that anxious parents and experienced investigators would suggest and mislead so badly.

Few could believe that tragic results were undeserved, considering how morally impure the accuseds were in other respects.

Moral impurity was used to excuse unwarranted punishment on other grounds.

Preconceptions were getting in the way of clear, hard, thinking, and had to change. You don’t want to get too far in front of the preconceptions of the authorities or you’ll be in for the fight of your life.

Fiasco cases are caused by the failure to conduct a competent investigation. To the best of my knowledge, we do not have anything we can fairly call a “due process right to a competent investigation.” Justice Kleinfeld, in his dissent to Devereaux, calls this “a Constitutional right not to be framed.”

Framing the innocent is a perversion of due process.

The key to killing a false accusation is a competent investigation. Don’t expect to find it in the midst of a popular delusion or mania. Collective madness is thrilling to behold, but not susceptible to reason.

What you must do, should you find yourself like the Chinese man in front of the tank at Tiananmen Square, is to oversee a competent counter-investigation.

It is difficult, if not impossible, for a court to short circuit an ill-founded case built on an incompetent investigation. Political, as well as legal, realities militate against it. Summary judgment is not available in disputed cases of fact, which most false accusation cases are. Just because your client is sued for allowing a UFO to land in his yard to kidnap and molest the plaintiff does not mean you can avoid going through a long, unpleasant process.

The usefulness of preliminary hearings to weed out groundless criminal charges has been severely curtailed by legislation. By the time you get to jury, so much time, expense, effort, disruption, and harassment have occurred that innocent people, to avoid prolonged further custody and the risk of further miscarriage of justice, the system having exposed itself to them, will submit to an extorted plea of guilty to something they didn’t do, just as the “witches” in Salem did. Some courts will coldly participate in this extortion to avoid embarrassment to the authorities, who are never supposed to be wrong, over what is certain to be the public display of a sure miscarriage of justice.

Plea bargains are fine when you’re guilty, but not if you’re innocent. No one is treated as innocent down at the Hall, especially the defendants. If they were not morally impure when they entered, they will be when they leave.

Perhaps you’ve wondered why we seem to be seeing so many miscarriage of justice scandals, lately, such as the overturning of rape or death-penalty murder convictions after years spent in prison as an innocent man?

It starts with case-building masquerading as investigation. In its true sense, investigation means honestly trying to find out what happened. If you skip the “honestly trying to find out” part and jump right to case-building, which is what happens in the exciting cases, there’s a pretty good chance of nailing the wrong guy. Here’s how one experienced student of the subject put it:

"It’s a textbook case of a miscarriage of justice where you have the lethal recipe of police and prosecution misconduct, defense ineptitude, and judicial indifference."

By David Protess, Professor of Journalism, Northwestern University, about a Texas death penalty conviction his journalism students are reviewing. He and his students have uncovered evidence leading to the exoneration of seven men convicted of murder in Illinois including three on death row. Conservative, Republican, Illinois governor George Ryan has suspended all executions pending a study. S.F. Examiner 6/30/00

You think this can’t happen here?

• Police Misconduct

• Prosecutor Misconduct

• Medical Examiner Ineptitude

• Judicial Indifference

This explains Foxglove, where the Medical Examiner blew his only lab test. When he told San Francisco police that he’d found unprescribed digitalis, from the Foxglove plant, in someone’s blood, he triggered a six-year witch-hunt. Police inspectors compounded the problem by getting involved in a scheme to sell the story to Hollywood. If you plan to become a hero and get rich before you’ve cracked the case, there’s going to be something wrong with your case when you bring it. By then, you will never be open to the idea that you’ve gone down the wrong path.

After the court holds your client in custody for 32 months without bail on a poison-murder charge that’s slowly collapsing, it may not be a bad idea to make a deal for credit for time served to get the pack off your client’s back sooner rather than later. That’s probably why Devereaux, in the opinion at sidebar, pled guilty to an insignificant (except as a face-saver) charge that seems to have little relation to the main thrust of the investigation. In the prize-fight ring of ideas, forcing the other guy to throw in the towel is as good as it gets.

Justice Kleinfeld took the bull by the horns in the Wenatchee Witch-Hunt. I’ve not seen another opinion like it. It is almost (because it’s a dissent) an official validation of what many thoughtful people have been saying for over two decades.

Today it’s a dissent.

Tomorrow, if the truth means anything at all, it will be law.

Robert Sheridan

Mr. Sheridan, a graduate of N.Y.U. Law School, has been a California attorney since 1967.

***

AFTERTHOUGHT, NOVEMBER 9, 2004

FUNDAMENTAL ERROR

A fundamental error is the assumption in the above, that "the Law" is a body of accumulated wisdom, i.e., that it, meaning we, learn from our mistakes and build in safeguards to protect against repetition.

That's not how our legal process works, is it?

In reality, the law changes only in reaction to fiascos, when public clamor for reform results in a legislative change. Only then can elected judges risk making unpopular decisions. Few elected judges relish releasing a demonized defendant on a 'technicality' such as a coerced confession or bad search, both constitutional rights, I might add. One persons technicality is another's constitutional right.

Eventually an appellate court judge who enjoys a lifetime appointment, such as Judge Kleinfeld, above, can put the fiasco in a larger context and come down hard on short-sighted local authorities who find themselves engaging in witch-hunts.

But that comes after the witch-hunt has already occurred. Closing the barn door after the horse has escaped.

How do you prevent a witch-hunt in the first place?

There is only one way.

You must insist on a competent investigation conducted with integrity from the outset.

This makes the investigative process a political process, requiring courageous, intelligent political leadership from the mayor to the police chief, on down to the chief of detectives, the head of the investigating unit, and finally the investigator personally.

This is a tall order.

It requires good initial and in-service training, where competency and integrity are constantly enjoined on the investigator and his chief.

An investigation, however competent it may appear on the surface, is incompetent if conducted without integrity, of course.

Competency generally refers to hitting the obvious bases. Integrity, as Feynman explains, means first not fooling yourself and YOU are the easiest person to fool, but leaning over backwards to show how you may be wrong. You must ask what fact, if proved to exist, would falsify the theory on which this investigation stands. And be prepared to drop the investigation when this fact turns up, as it does many times.

If you don't drop your search at this point, then you must modify your theory. But do so in writing, in the investigative report that the world sees, and the defense. Otherwise you're hiding something. Investigations conducted with integrity have nothing to hide.

Look at criminal investigation like a craps game in which the investigator is the dealer representing the House. The House wins some and loses some, but in the long run the House always comes out ahead, given the number of rolls, the odds, and the statistical law of large numbers.

In craps there's a saying. "There are no secrets in a crap game." Make that an honest crap game. (One of this writer's accomplishments is that he dealt craps one summer in law school at Lake Tahoe.)

Where may the law accumulate knowledge and understanding?

In jury instructions, for one.

Jury instructions inform jurors of the legal rules for evaluating evidence. Evidentiary, procedural, and substantive statutes prohibit or caution as to the use of certain sources of evidence: involuntary confessions, statements of accomplices, uncorroborated statements, and the like. There's a lot of real and pop psychology masquerading as law in jury instructions, such as the one on 'consciousness of guilt' from evidence of flight. Sometimes it applies and sometimes it doesn't, as where someone flees because of a well-founded fear of police, not actual guilt.

In statute law.

In opening and closing statement of counsel.

In expert testimony at trial.

In scrutinizing 'scientific' evidence under Daubert, and in California, Peo v. Kelly, of Kelly-Frye fame. Frye, the old federal case on admissibility of scientific evidence was overruled in the Daubert v. Merrill-Dow Pharmaceutical case.

Trial counsel for both sides are entitled to offer proposed jury instructions to the trial judge. For the defense, rejection of a proposed jury instruction, on the consideration of evidence tailored to the circumstances of the case, for example, creates a legal issue for an appellate court to consider, write-on, and maybe reverse what the defense maintains is a false conviction.

I'm sure there are other ways of encouraging the law to benefit from human experience. Writing articles like this for the benefit of law students, lawyers, law professors, judges, and anyone else who may care to wade through it is another. Yet, wading through masses of verbiage is what lawyers do, isn't it. It's why they invented "legal research," made even easier with computerized search techniques such as Google. All you have to do is Google on "Daubert," for example, and you've got it looked up.

It is worth noting that one of the uncoverers of criminal justice shortcomings is David Protess, a professor not of Constitutional Law, or Criminal Procedure, or Evidence, but of Journalism. Along with college students having no law degrees or judicial honors, this professor of journalism shined such light on our death penalty system that it was brought to a screeching halt.

Why didn't a lawyer or judge do that?

It was a governor who did that. Just as in Salem, 1692, when the governor's wife was falsely accused.

When bad things happen to good people, that's when good things start to happen in the law.

I'll give you another example. When I was starting out, marijuana was considered a drug just like all the others. Little distinction was made among drugs. They were all bad and all crimes. Only criminals and black people used drugs, up in places like Harlem (I'm from New York) and in jazz joints. Those were the people who accumulated criminal records that made it difficult to pursue straight callings, if the opportunity arose, which it often didn't.

When the counter-culture movement arose at the time of the Vietnam War and young whites began tuning in, turning on, and dropping out, drug use became widespread among children of the upper and middle classes. Lower class kids may have been too busy getting drafted and looking for work to be as heavily involved, although there were plenty enough of those, I suppose.

Suddenly white parents weren't happy about seeing their kids saddled with criminal records. This is just a passing phase, they argued. I was a prosecutor then, prosecuting these kids, and heard the arguments. They'll outgrow it, parents, and lawyers argued. Which was correct. They did outgrow it.

In order to avoid criminalizing an entire white generation, marijuana was essentially decriminalized. A lid of weed, an ounce or less, was a $100 infraction now. Marijuana was no longer in the same category with other drugs. When drugs went white, distinctions could be seen.

Legislation made the difference, not anything the courts or legal profession was doing outside the legislature. The criminal justice system is the tail on the legal dog, not the head.

Boy, did I get that backwards as a kid admiring law.

I leave the rest to you...

***

*The California case that effectively outlawed the use of "anatomical dolls" when interviewing children in child sexual molestation investigations, as too suggestive of false accusations, in violation of Kelly-Frye, is In Re Amber B. __CA3__ (1987)

THE FALSE CHILD MOLESTATION OUTBREAK OF THE 1980s...

False accusations can be the hardest to debunk.  When revealed for what they are, they require an explanation, made in the hope of preventing another, a vain hope, no doubt, but one which will give investigators food for thought.  A competent investigation, conducted with integrity, is a rare and beautiful thing, and very hard to come by when clouded by preconceptions, and there are many preconceptions when dealing with accusations made by children.  Caveat those backed by parents with an agenda against another parent or adult.  See the Salem Witchcraft Outbreak, 1692.  Same thing.

The published article is below:

The False Child Molestation Outbreak of the 1980s: An Explanation of the Cases Arising in the Divorce Court

Robert Sheridan^*

In 1981, Congress enacted legislation to deal with actual cases of child abuse by requiring the states, as a condition for the funding of state programs, to enact mandatory reporting laws.  California's statute requires all child care custodians, medical, and nonmedical practitioners, defined to include teachers, nurses, and dental hygienists, among others, to report suspected cases of child abuse — sexual, physical, and emotional.  Failure to report is a misdemeanor, punishable by up to six months in jail and a $1,000 fine.

In addition to defining sexual abuse to include virtually any inappropriate sexual stimulation of a child, the statute defines "reasonable suspicion" to mean "that it is objectively reasonable for a person to entertain such a suspicion, based upon facts that could cause a reasonable person in the like position, drawing when appropriate on his or her training and experience, to suspect child abuse" (California Penal Code Sec. 11166[a]).

That nondefinition is a major rational problem area in dealing with this emotionally overloaded issue.  It has contributed to the bringing of some 1.2 million reports of suspected abuse in 1981 and 1.9 million reported cases in 1985, according to findings released March 2, 1987, by the House Select Committee on Children, Youth, and Families, in a report entitled "Abused Children in America: Victims of Official Neglect."

Behavioral indicators of child abuse, according to the prosecutor's handbook put out by the National Center for the Prosecution of Child Abuse, of Alexandria, Virginia, a subsidiary of the National District Attorneys Association, may include overly submissive behavior, aggressive acting out or incorrigible behavior, school related excesses, sleep disturbances, bed-wetting and "clingingness."  Such broadly defined so called indicators have a grave potential for contributing to a false accusation, because children who have not been sexually molested may exhibit such behavior.

There are other error factors which either cause false reports to be made or contribute to the failure to recognize a false report.

In the divorce context, this may be seen when an overly suspicious mother tells the child protection intake workers that she suspects the father for some reason, such as vaginal redness.  The young child, under the mother's questioning, may acknowledge the father touched her "there" during weekend visitation.  The worker interrogates the child and develops the story.  A report is written and submitted to a court which cuts the father off from the child, who remains with the mother.  Criminal proceedings may result based on the uncorroborated word of children as young as three.  Fathers have been bankrupted, emotionally wrenched, and deprived wrongly of their children based on circumstances such as this.  Some may have been erroneously convicted as well.

Why?

I would ascribe it to a failure of reason in the context of an emotional situation.

The Salem Experience

There have been notorious examples of rational failure in the past.  The Salem, Massachusetts witch-hunt of 1692 is the classic irrational child molestation case of all time, with eleven girls ages eight through seventeen instrumental in causing twenty executions and 130 condemnations to death on the charge of witchcraft.

More precisely, the Salem children's parents and the surrounding adults were responsible for the outbreak, not the children.  The adults were acting as child advocates, working for the best interests of the children.

Witchcraft was felony child molestation, a capital crime, in 1692.  The myth in which virtually all of the Puritans believed was that there was a devil, who operated through intermediaries, termed witches if female, wizards if male, to harm or torment innocent people, such as the children of the village.

When Dr. Griggs was called to examine children who had adopted "odd postures," "foolish, ridiculous speeches," "distempers," and "fits," he diagnosed the "Evil Hand" or malefic witchcraft.  Perhaps, believing in the devil, he expected to find his presence.

The household of the Rev. Samuel Parris, in which the first witchcraft accusations were developed, was irritated and disturbed.  Parris was at war with his congregation and his town and felt betrayed by their failure to pay his salary, which included corn and firewood, essential to withstanding the winter.

The context may be likened to that of a divorcing family, a microcosm coming to an end, with attendant fear and anxiety, marked by bitterness and ever increasing ruthlessness in fighting, with the children used as weapons.  Had Dr. Griggs, and the real experts, the ministers, objectivity and sufficient distance from the problem they might have looked for the cause of the children's behavior, and subsequent allegations, in the context of what preceded them.

From the distance of three centuries, it seems more clear.

The children, according to Boyer and Nissenbaum (Salem Possessed, Harvard U. Press, 1974), were experimenting with fortune telling on the subject of their future status, including love and marriage.  They conjured with sieves, keys, peas, nails, and horseshoes.  They foretold the future with a crystal ball, and perceived a specter, like that of a coffin, which frightened them.

Questioned by Puritan elders, they at first resisted answering, one supposes because of the sexual content of the imaginings being probed.

One also supposes that the children of 1692 were as familiar with what witchcraft manifestations were supposed to be like as our children are about fantastic space characters, or a Halloween witch or ghost. "Whoo ... a ghost," immediately conjures up the specter in our minds, even now, of an ephemeral creature shrouded in white from another world who passes through walls and does mischief, to the fright of children and believers.

A Puritan elder's interrogation might be a frightening thing to a child, just as any child might be apprehensive in admitting a sexual curiosity to a strict adult who professed against such things as being sinful.

Rumors began going around and, although resistant at first, the girls, "under the pressure of adult questioning, had finally named as their tormenters" three women who were accused as witches.  One even confessed, as many more later did.

Thus the Salem witchcraft cases had even more proof than many uncorroborated child molestation cases today; they had corroboration, confessions from the witches themselves.  What better proof could there be?

Unless one believes in witches, and the confessions of witchcraft extracted under some pressure by interrogators, the twentieth century rational analysis of such cases would require looking to other causes, and treating the children's testimony not as direct evidence of their claim of molestation by a witch, but as circumstantial evidence that something very disturbing had occurred in their lives.  This would require some investigation to determine that the case had nothing to do with witches.

I think we would focus on what was disturbing in the children's lives, perhaps the uncertainty of their future as a family on the frontier of a wilderness populated by warlike savages with winter coming on and a father unsupported by his community and railing about it both in the pulpit and at home.

We might also look to the misinterpretation placed by the adults on the unfamiliar behavior of children.

Finally, we would look to the interrogation process by which the allegations themselves were first developed by adults, to see whether the statements of the children had been contaminated by the expressions of the adults.

I suggest that this would be a rational approach to understanding both Salem's, and today's experiences with uncorroborated molestation charges developed by adults from the mouths of children, following some not-clearly-understood behavior or appearance.
  

The Rational Approach

Child abuse cases are peculiarly difficult for those in authority to deal with rationally for a number of reasons.  The underlying causes of difficulty are the emotions such cases engender, together with the pressure to "do something" right away to "protect the child" from the imagined abuse.  The result, in the false cases, may be characterized as an order amounting to a judicial kidnap, the taking of the child away from an innocent parent, usually the father, and delivering the child into the arms of a wrongdoing mother, who is strongly motivated to support the newly established status quo.

What are the rational approach problem areas in the divorce, or hostile context?

Let us first look at the meaning of the rational, or analytic approach.

A rational approach requires the employment of reason, not emotion, to resolve disputed propositions, through argument supported by fact and theory, accepted, after critical analysis, as comporting with human experience. It requires that a demand for a reason, or reasoned objection, be met with a piece of purportedly sound reasoning based on acceptable facts.

Sound reasoning requires that the proponent of a proposition, i.e. the child protective service worker, or the prosecutor, advance facts sufficient to warrant the action proposed to be taken.  The proposed action is often drastic, such as removal of the child from a parent, or, it may result in imprisonment for long periods.  The less drastic the consequences, and the more emergent the need to take immediate protective action, the less proof required to do so describes how the legal process actually functions.

In child abuse cases the amount of proof required to remove a child temporarily from a parent is trivial.  The mere reported statement of the child is often sufficient, particularly when the reporting party is a person wearing the mantle of the flimsiest authority or competency, such as a so-called child-advocate or social worker.

The rational approach requires that no adverse action be taken on insufficient proof, and that reasonable objections must be shown not to exist before adverse action can justifiably be taken.
  

Rational Approach Problems Areas

The Cause of False Reports

The misinterpretation of a young child's account of an overnight visit with the father is the most common cause of a false report.  If the intake worker is biased towards believing the accusation developed from the child by the mother, the stage is set for travesty.  The child will be cut off from the father and kept with the mother, even if the story is false, because the worker will either fall to detect the falsity or will contribute to its development.

One supervisor of a child abuse intake unit in a city hospital, a psychiatrist, described how she had once missed diagnosing a valid case of abuse, only to learn that the child had been found dead hanging in a closet later.  Such experiences, and the teaching of them, may encourage some child abuse intake workers to persist in questioning a child until the child says what the worker is asking about and wants to hear.

Since the child is frequently brought to the child advocate by someone suspecting sexual abuse, and the subject will have been discussed with the child, directly or within earshot before arrival, a persistent questioner may be rewarded by achieving a reiteration.  This is particularly true when the child is shown unusual and suggestive dolls with disproportionately large penises and vaginas.

The misinterpretation of the child's account of a visit with father is the result of observer bias, ineptitude, frustration, and the like.  The riskiest area involves improper questioning technique.  Questioning is improper when it supplies new words or concepts which may elevate the child's level of sexual sophistication, or suggest details the child hadn't uttered.

The reinforcement of selected responses by reacting positively or negatively to the child's statements and the projection of the questioner's own emotions, fears and concerns, gives several messages to the child.  She learns that these things are expected and it is okay to say them.  She experiences that she will be rewarded with love, sympathy, and protection, on a personal level.  She is told that she will he helping daddy get needed "help" to prevent him from molesting again.

In the hostile context, particularly where the mother questions the child after every weekend visit with the father, such questioning can have an influential effect on the child in terms of her level of sexual sophistication.  It can also affect her willingness to take the mother's side in a fight where the custody of the child is the mother's desired goal, and perhaps eventually, the child's as well.

The critical factors comprising this risky scenario include the domination by one in a superior position over a weaker person who is dependent on the superior person for continued unpunished existence, and the essentials of life, such as food, shelter, clothing, and emotional peace, particularly the latter. Indoctrination through confrontive, suggestive questioning in a hostile and fearful context provides the necessary information.  This information is later repeated, orally or through drawings, dolls, or "play therapy" — devices used to entice a child into reiterating what it is she is supposed to know.

A motive on the part of the stronger to resist losing the possession, loyalty, or control of the weaker represents domination over an enemy.  This, together with isolation and time to work on the dependent one, will result in a succumbing to the will of the stronger, a surrender, an accommodation.  This occurs when the ability to resist is worn down in the interest of surviving in peace.

How effective is this process?

This describes the Korean War situation which gave the term "brainwash" popular currency in 1952, when 22 American POWs, ranking as high as lieutenant colonel, denounced their mother country, turned coat, and refused repatriation.

Other examples: "Stockholm Syndrome," describing hostages of armed bank robbers who held them for several days in a vault while surrounded by police.  Several of the women "fell in love" with their captors.  One later married hers.

Patti Hearst: the kidnapped hostage of a terrorist group, held in isolation for long periods, beaten, and dominated, physically and emotionally, ultimately was "turned."  She then cooperated in their crimes, for which she was convicted of having participated of her own free will.  Her sentence was later commuted, I think, because of reasonable doubt that she really acted of her own free will.

Peaceful intact families, where each parent supports the other in the role of loving parent and protects the child's sense of emotional security, rarely produce children who falsely accuse of sexual molestation.  This is seen most often in warring families where one parent vies for the child's attention and love, and may use the child as a lever for the destruction of the other parent.

In a divorce, the elements of dependence, isolation, hostile context, bitterness, increasingly ruthless fighting, motivation, indoctrination, and time to take effect, are present along with the child's need to accommodate for the sake of emotional peace.  If the price of peace is the destruction of the father, it is not too high for a child disturbed from living in such an anxious, conflicted state, particularly where the mother represents the hope of refuge.

One would think that anything the child says in such a context would be treated as were the statements of the POWs, that is, brainwashed, coerced, not the product of free will, suspect, subject to confirmation by independent, dependable evidence before being accepted.  No corroboration, no faith.

This is not the invariable response.  Numerous are the examples of innocent accused fathers who liken their experience to the Salem witch-hunts, with good reason.

Later, the POWs returned, recanting and acknowledging the indoctrination problem.  Anne Putnam, in 1706, abjectly recanted her Salem witchcraft accusations, in writing and in public, attributing them to adult influence.  Even the judges recognized they had shed innocent blood and prayed forgiveness in their churches.

What stopped the Salem executions was the fact that the newly arrived governor's wife, Lady Phips, having expressed sympathy for the condemned, found herself accused by the children, following which her husband abolished the special court he had established to handle the outbreak of cases.  This effectively put a stop to the prosecutions which were increasingly being questioned as more and more people, mostly women, were being condemned.

In the outbreak we see today, the governor's wife has yet to be falsely accused.  We see sufficient numbers of ordinary people falsely accused to give rise to support groups protesting the medico-legal response to the phenomenon.
  

Weapons of Choice

In the divorce wars, each on the field of combat has a weapon of choice.

First I should note that I have never heard of a case in which a father sexually abused his child to get back at his ex-wife.  Incest is a differently motivated pathology entirely.  The typical male response to the provocation, frustration, and rage of divorce, is to drink or use violence against his wife, perhaps in the presence of the children, or both.

The wife's weapon of choice is not violence, but the child.  She gets back at the husband by depriving him of the only thing out of the broken marriage he dearly loves, the child.  The child is her leverage to insure cooperation and punishment for a recalcitrant and deserving husband.  If she can point out to the child examples of his misbehavior, she is well on her way toward succeeding in the alienation process.

The role of the mother in developing a false accusation may have causative factors in addition to her own hatred, spite, and desire for revenge.  She may feel guilty for some part she played in the breakup of the family.  She also may achieve three positive emotional gains by succeeding in developing an accusation out of the child's mouth:

First, she secures the "buying-in" of the child to her hostile view of the father.

Second, in the eyes of herself, the child, her family and friends, the mother goes up a peg and the father goes way down, because even if the accusation is not formally acted upon, the stigma becomes part of the family lore, and the father is always seen in some degree as being tainted.  I see this as an attempt to achieve a "status exchange."

Third, what do we naturally do when we feel guilty about something bad we've done?  We relieve the guilt by shifting the blame.  We point out someone who is even more blameworthy.

No matter what misconduct a woman is guilty of, from sex, to drugs, to child neglect, it is not as bad as child sexual molestation perpetrated by the father.  Guilt transference is the first resort of the scoundrel.

A hysterical mother, obsessed with the thought that her children may be victimized sexually by the hated father, is apt to go looking for signs where none exist, and find them anyway.  Experienced child protective service workers have come to expect mothers to bring young daughters in on Mondays following visitation, with redness, rash, or itching precisely because fathers sometimes avoid cleansing the child's vaginal area thoroughly because of a reluctance to touch there.

Psychiatrists are aware of cases in which two people, a mother and daughter, for example, feed off each other's mental abnormality such that they share the same delusions.  It is doubtful that the average child protective service worker or police investigator is competent to detect or rule out such a process during an intake interview.

In the divorce wars, the children's prime weapons are acting out, and accommodating.  No doubt there are many other behaviors as well.  Areas to be investigated to understand the child in a conflicted situation include the relationship to each parent, mental abnormality of the child or parent, conflict in loyalty towards each parent, anxiety over being separated from a different parent twice weekly over visitation, a sense of powerlessness, an undeveloped conscience, such that the child does not know the significance of unreal things spoken or acted out, and the normal attraction that a child has for the opposite-sex parent at various stages of development.  Finally, the child's stage of development, including the ability to accurately perceive, interpret, and recount circumstances of adult significance requires focused attention.
  

The Causes of the Failure to Detect False Reports

The myth current in Salem, Massachusetts, 1692, was that there was a devil who tormented children through adult intermediaries who were in league with him as witches.  Today's equally malefic myth is that repeated in the brochure of San Francisco General Hospital's child abuse intake unit termed CASARC, for Child-Adolescent Sexual Assault Resource Center.  SFGH is the publicly funded county hospital.  Its brochure states:

"Always believe the child who discloses sexual abuse.  Children NEVER lie about this problem" (Emphasis in original).

An attorney who fancies herself a "child-advocate" (self-proclaimed, often court appointed, and who is now a Juvenile Court referee with decision-making power over suspected cases of abuse) lectures "Children deserve to be believed."

Only truth deserves to be believed, and neither the children nor their advocates have a monopoly on it.  Nonsense to the contrary contributes to the failure to detect falsity even where there is a willingness to look competently, which is rare.

"Looking competently" is difficult to achieve.  It presupposes training.  It requires the opportunity to look, that is uncontaminated access to the child, the mother, and the father.  It requires hard work and a willingness to put aside bias, cant, and emotionalism.  Distractions such as laziness, politics, and lack of funding to provide the necessary time and manpower get in the way.

It is difficult to get at the facts by ordinary investigative means.  Often the facts are not properly developed.  The result is the failure to identify valid and invalid cases, and the tendency to treat more cases as valid than exist.

How bad are the rational failures of inept child-advocates?  I call it the trick mirror approach.  I see it in the arguments over the validity of cases.  The false premise is that the facts support the truth of the child's uncorroborated accusation, but if the facts are otherwise, the accusation is still true.

Examples:

(1) Consistency in the repetition of the story indicates truthfulness, whereas inconsistency also indicates truthfulness, because the child is disturbed over having been molested.

(2) Timeliness in reporting the distressing event indicates truthfulness, whereas delay also indicates truthfulness, because the child is disturbed and thus reluctant to talk about the unpleasant event.

(3) The presence of graphic details indicates truthfulness whereas the absence of details also indicates truthfulness, for the same reason.

(4) That the child sticks to the story indicates truthfulness, whereas if the child recants, this also indicates truthfulness, because of the disturbing consequences of relating the traumatic experience.

On this latter point, I suspect that some children would sometimes like to extricate themselves from having made a false report, but are not permitted to do so.

(5) If the father confesses, the accusation is true; if he denies guilt, it is also true, because admitting guilt is too shameful in these cases.

Many people acknowledge wrongdoing, including men who have molested children.  There is no reliable study concluding that there is a greater reluctance in these cases than others.  You would expect an innocent man to deny wrongdoing.  That is what you would do if you were falsely accused of anything.

Compounding all of the above difficulties in thinking clearly, California has enacted a statute, and its courts interpret it in a manner insuring that a competent investigation not only will not be performed by the authorities, but will not be permitted on behalf of an innocent accused.

The statute, California Penal Code 1112, was enacted at the urging of women's rights organizations to protect rape victims from being compelled to undergo a psychiatric evaluation, on the ground that it was intrusive, and that men who brought criminal charges were not compelled to undergo the same.  This statute is now applied to prohibit a child psychiatrist or psychologist from interviewing the child in a maternally developed, uncorroborated, charge of incest brought by a child as young as age four, even where obvious signs of disturbance can be cited as preceding the accusation on the part of both the mother and the child.

Not the least of the rational problem areas is the tendency, perhaps unintentionally, to shift the burden of proof to the accused father and to expect him to explain how the mother could have induced the child to so testify, while at the same time not permitting him competent access to the child or the mother.

Prosecutors say, "This kid is good, she couldn't be making this up, she couldn't know about these things."  She could if she were asked about it by the mother.  The mother's denial should be taken skeptically.  In divorce cases, undue influence should be presumed until eliminated factually.

Police and prosecutors ask suspects if they will take a polygraph examination.  If the authorities have to ask, they are acknowledging doubt and they need to prove the case out of the suspect's mouth.  It is not a burden he should willingly shoulder.

There is the tendency to lower the burden of proof to mere nothingness, to have intake workers testify as to what they think they recall the child was saying, in order to spare the supposedly molested child the "additional" trauma of testifying in court, or confronting the person she accuses.

Until these problems are effectively dealt with, we'll see many more false cases before the Governor's wife is accused and a stop is put to the child molestation witch-hunts that crop up with increasing frequency.

I suggest that if the emotionalism is recognized, and put aside, as we focus on a rational, analytical approach, we can distinguish the valid from the invalid cases, and bring fewer false charges.

Thomas Brattle, of Brattleboro, Massachusetts in 1692 was the first to proclaim that innocent blood had been shed.  Shortly after Increase Mather, president of Harvard College, wrote A Case of Conscience, declaring his misgivings about the accusations and what served as proof of them.  In it he uttered his famous dictum: "It were better that a hundred witches go free than one innocent person be condemned."

The prosecution and the removal of a father from his child on the basis of the reasoning criticized here is the shedding of innocent blood.  When a father has been put in jeopardy of his liberty, and wrongfully deprived of seeing his child for years, innocent blood has been shed when the falsity could have been discovered beforehand, but was not.

Selected Bibliography on the Salem Experience

Aymar, B., & Sagarin, E. (1967). Salem witchcraft. In A Pictorial History of the World's Great Trials ()() (Chapter 7). New York: Bonanza Books.

Boyer, P., & Nissenbaum, S. (1974). Salem Possessed: The Social Origins of Witchcraft ()(). Cambridge, Massachusetts: Harvard University Press.

Hansen, C. (1969). Witchcraft at Salem ()(). New York: George Braziller, Inc.

Karlsen, C. F. (1987). The Devil in the Shape of a Woman: Witchcraft in Colonial New England ()(). New York: W.W. Norton & Company.

MacFarlane, A. (1970). Witchcraft in Tudor and Stuart England (). New York: Harper and Row.

Starkey, M. L. (1949). The Devil in Massachusetts: A Modern Inquiry into the Salem Witch Trials ()(). New York: Time Incorporated, Book Division.

The Salem Witchcraft Papers (3 vols.) () (1977). New York: Da Capo Press. (Verbatim transcripts of the legal documents of the Salem witchcraft outbreak of 1692. Compiled 1938 by the Works Progress Administration. Edited and with Introduction and Index by P. Boyer and S. Nissenbaum.)

Thomas, K. (1971). Religion and the Decline of Magic (). London.

Upham, C. W. (1959) (2 Vols. Reprint edition). Salem Witchcraft ()(). New York: Frederick Ungar Publishing Co. American Classics Edition. First published 1867.

Weissman, R. (1984). Witchcraft, Magic, and Religion in 17th Century Massachusetts (). Amherst, Massachusetts: University of Massachusetts Press.

* Robert Sheridan is an attorney and can be contacted at 735 Montgomery Street, Suite 210, San Francisco, CA 94111.  [Back]

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FOOLING OURSELVES: CARGO CULT LAW and MEDICINE

This article summarizes a bit of hard-bought learning acquired through the practice of law. Fooling Ourselves: Cargo Cult Law and Medicine Robert Sheridan* The first principle is that you must not fool yourself — and you are the easiest person to fool (Feynman, 1985). ABSTRACT: A fundamental cause of false accusations is the tendency of adults to fool themselves.  Adult investigators who are biased towards believing an accusation is true will be unable to conduct an appropriate investigation and therefore will find what supports their prior beliefs.    So many child sex accusations turn out false that I have wondered why presumably intelligent and well-meaning authorities believed them in the first place.  False accusation fiascos have included McMartin Preschool, Morgan-Foretich, the Jordan, Minnesota case, and the Cleveland, England affair.  In my practice, a six count case (worth 23 years in prison) was dismissed before trial last April after the client spent three months in jail and a 61 count case was dismissed after a hung jury a few years ago; both were false allegation cases. I wondered why the falsity couldn't have been caught before the devastating charges were brought.  Why were the authorities being fooled by kids? I studied why and described important false influences on the children and the adult who is often behind them in a previous article in this journal (Sheridan, 1990).  Since then, I've come up with an even more fundamental cause of false accusations. Children do not fool adults; adults fool themselves.  The smarter they think they are, and the more dedicated, the more likely adults are to fool themselves.  Humility, that is, awareness of one's own bias, and acknowledging that there may be more to the story, turns out to be protective and productive, as well as scarce.    Cargo Cult Law and Medicine Richard P. Feynman, the late Nobel laureate in physics, stressed the importance that scientists not fool themselves by referring to the cargo cult people of the South Pacific after the war (Feynman, 1985).  These aboriginal islanders wanted to make U.S. cargo planes return with all kinds of goods, so they erected towers and wooden antennas near the airstrip, acted like controllers, and waited for the planes to come in.  Their form was correct but no planes came in.  He calls this "cargo cult science," where you do all the right things, you think, but you are wrong, nevertheless.  You either leave something out or draw the wrong conclusion.  What is missing, Feynman says, is "utter scientific integrity," meaning "a kind of utter honesty, a kind of leaning over backwards," the duty "to report everything you think might make your conclusion invalid," and "giving details that could throw doubt on your interpretation."  It's this type of integrity, this care not to fool yourself, that he says is missing in much of the research in cargo cult science.  He gives examples of investigators fudging data not fitting the theory they wanted to prove.  "The first principle is that you must not fool yourself — and you are the easiest person to fool," he says. Feynman's first principle applies to any type of important investigation.  In child abuse cases the absence of investigative integrity reduces the process to cargo cult medicine and law.  Law and medicine rely on each other to such a degree that each suffers from the investigative flaws of the other in these cases.  These flaws include improper belief systems or biases, institutional pressures, carelessness, and lack of proper training.  Doctors and social workers in the medical system claim they are not investigators.  However, the legal system often takes action based on what they said and did with the child before the police entered the picture, and on the conclusions they draw. Both systems have a problem with the secret talks the accusing parent or other person had with the child before calling the police or the child protective service (CPS) worker.  If it is difficult for scientists, much less legal and medical investigators to think straight, how much reliance can we place on the private talks that a motivated and emotional parent had with a child before contacting the authorities? The suspect is often severely prejudiced because (1) no one in authority deals effectively with whether the child has been influenced by the questioner's questions, or is fantasizing, parroting, misinterpreting, or whether the first official interviewer has become a believer and then persuaded those that came next; and (2) that first person often too readily becomes a believer without having conducted a competent investigation into the context out of which the accusation arises.  Context is everything.  The suspect's protests of innocence are then routinely discounted on the theory that men always lie about molesting, which is false. Investigative integrity requires that the investigator be aware of his or her own biases, and take them into account.  It also requires access to evidence.  Yet the opportunity for defense counsel to discover evidence is curtailed more in child abuse than in other cases.  Under new Proposition 115, at preliminary hearings in California hearsay is allowed.  The child cannot be called for cross-examination (statements allegedly made by the child are testified to by an officer), and psychiatric evaluations of the child and the adult backer are prohibited.  Magistrates have had their power to weed out groundless cases curtailed and the review process is geared towards upholding convictions regardless of earlier infirmities.  Investigative integrity is thus impaired by law, which is why I call it cargo cult law and medicine.    Vignettes I Owe You A Lunch A college boy was accused of raping his 13-year-old stepsister.  I telephoned the sergeant assigned to the case after the girl was interviewed by a CPS worker and a rape detective, each of whom believed her story.  I asked the sergeant if he had personally spoken to the girl, and he said he had not because she'd already convinced the other two.  I told him that my client maintained innocence, I had no idea why the girl would make up such a story, and that in my experience children didn't fool adults, but that adults fooled themselves.  I suggested that he interview the girl himself because he might be a better investigator. A week later the sergeant called, saying, "l owe you a lunch."  The girl admitted she'd made up the story.  She was unhappy that her father recently married the boy's mother because she was no longer first in her father's eyes and the stepmother made her come in early and do homework, so she wanted to break up the marriage, which she did.  The sergeant, who was a better investigator, uncovered the lie by telling the girl she would have to undergo a medical exam which would tell whether she'd ever had intercourse.  She knew she hadn't so she copped out. I asked about the other two investigators, how had she fooled them?  "She didn't fool them," he said, "they fooled themselves."  In my opinion they wanted to believe the girl but didn't realize it. They were unaware of their biases.  They were in the child sex abuse business.  They wanted to believe the alleged victim and substituted faith for investigation.  Afterwards the CPS worker wanted to have the girl put in jail for lying (or perhaps for giving the lie to the belief that children never lie about these things).  When your only tool is a hammer, everything looks like a nail.    Mommy Pushed Me I was walking along a rough path to the beach.  Two steps ahead of me was a little girl of about three.  Her father was up ahead and her mother and grandmother were a few steps behind me.  The child suddenly tripped and fell.  Her father walked back, picked her up and asked what happened.  Crying, she said, "Mommy pushed me."  "No, she tripped on this rock," I said. Why did the little girl blame her mother?  She was responding to a demand by her father for an explanation.  She had to come up with something.  She was upset, crying, and the focus of attention.  She wanted sympathy.  She was confused.  She didn't want to get blamed.  She misinterpreted the situation.  She didn't realize she tripped. What if the child were seriously hurt, the parents had been fighting, and there were no witness to the tripping?  The father could have shown a bruised child to a CPS worker, had the child repeat that the mother pushed her, and a child abuse proceeding could follow in which the mother could lose her child.    We Are Quick to Suspect the Worst A neighbor called the police on seeing a body stuffed into the trunk of a car by a woman down the block, according to a recent news report.  The police stopped the car and had the woman open the trunk. Inside was a human form, only it was a hairdresser's dummy, as the woman was leaving her cosmetology class with her homework. The misinterpretation of an innocent situation.  This has been described as one of the most common causes of false reports of child molestation.  What do people attracted to this work, protecting children, essentially, believe?    Lying Children Never Lie They call themselves child advocates.  They tend to believe children.  It is as though anyone who questions the report of a child is doing the child a disservice and being disloyal to children.  With reports in the millions it is unimaginable that there would be no false accusations.  Yet people who work in the field profess "Always believe the child who discloses sexual abuse.  Children NEVER lie about this problem."  This quote appears in the brochure of CASARC (Child and Adolescent Sexual Abuse Resource Center) which is San Francisco's official intake unit for child abuse cases, at San Francisco General Hospital.  "Children deserve to be believed" taught an attorney at a child abuse convention.  She is now a juvenile court judge deciding child abuse cases.  I suggest that only the truth deserves to be believed and children have no monopoly on it.    Lie Catching Who is good at catching lies?  The police?  According to a recent study the police are no better than random at lie-catching (Ekman & Sullivan, 1991).  Secret Service agents who protect high officials were better at it.  Researchers surmised it was because they don't pay attention as much to what the suspect says when he says he didn't mean it when he threaten a government official, as to how he says it — body language, facial gestures, and the like.  Also, Secret Service agents are accustomed to accepting recantations, i.e. that the suspect was not telling the truth earlier.  Perhaps the agents feel relieved, and want to believe it was just big talk.  Just the reverse happens in children's accusations, because when the child later says she was just imagining, for example, or making up a story, that daddy touched her, not only is the recantation disbelieved, but it is taken as proof of molestation on the theory that denial is a defense against the trauma that the believer assumes happened. Investigative integrity?  First CPS investigators want to believe the worst, then they beg the question, and then they poison the well.  If children can't lie when they accuse, how can they lie when they recant?  They've been "reached," believers argue.  But if children are so trusting or fearful that they can be reached to recant, why can't they be reached to accuse?    Conclusions Wanting to believe causes belief, especially if someone is helping you along.  The reverse is that you cannot see what you cannot accept.  Self-deception is the highest form. Here are some pearls on the subject of belief.  One of the oldest is by the Greek dramatist, Euripides, 412 B.C.: Man's most valuable trait is a judicious sense of what not to believe. More recently, attributed to that profound observer of the human condition, Archie Bunker: Faith is believing in something that nobody in his right mind would believe (Quote passed along by Daniel Hager of the California bar). My favorite, is by Baldassare Conticello, Superintendent of Archaeology of Pompeii, when he was opposing the municipal authorities who wanted to build a road over his dig.  Someone told him he would win because the arguments were all on his side, and he replied: The period of maximum danger is when all of the rational arguments are on your side (New York Times. 1987). Finally, by Albert Einstein: Insanity is doing the same thing over and over again and believing that the results will be different. My own view? Believe anything you want, but don't kid yourself. References Ekman, P., & O'Sullivan, M. (1991). "Who can catch a liar?" American Psychologist. 49, 913-920. Feynman, R. P. (1985). Cargo cult science. Surely You're Joking Mr. Feynman ()()() (pp. 308-317). New York: Bantam Books. Sheridan, R. (1990). The False Child Molestation Outbreak of the 1980s: An Explanation of the Cases Arising in the Divorce Context. Issues in Child Abuse Accusations, 2(3), 146-151. * Robert Sheridan is an attorney at 2171 Junipero Serra Boulevard, Daly City, California, 94014.  [Back] [Back to Volume 4, Number 1]  [Other Articles by this Author]

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