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.]
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THE SIDEBAR QUOTE [below] FROM DEVEREAUX TRIGGERS THE ARTICLE:
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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.
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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.
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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...
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*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)