http://www.newsobserver.com/news/local/crime/article58916823.html

FEBRUARY 6, 2016 7:47 PM

Former NC Supreme Court justice calls for review of state bar

Bob Orr says outside evaluation of the state agency is needed

Bar has grown large and divided into extreme camps, he says

Recent prosecution of defense attorneys, not prosecutors questioned

BY ANNE BLYTHE

[email protected]

Bob Orr, a former North Carolina Supreme Court justice, says it’s time for a comprehensive outside review of the state agency that oversees lawyers.

Orr, a licensed lawyer in North Carolina for four decades, is part of a committee looking at legal professionalism as part of Chief Justice Mark Martin’s recently launched review of the state justice system.

Orr said he hoped one recommendation from that study would be an external evaluation of the N.C. State Bar, established in 1933 as the state agency that licenses and disciplines lawyers.

The call for evaluation comes amid questions about the bar’s aggressive prosecution of three defense attorneys who have worked on Racial Justice Act and innocence inquiry cases.

Two of the cases were dismissed after high-profile prosecutions and the other resulted in an admonition, the lowest disciplinary action the bar can take.

“The state bar as an organization has grown exponentially in size – in the number of staffers, the number of members, the number of prosecutors,” Orr said in a recent telephone interview. “It’s become very insular and very insulated.”

The bar, which has more than 28,000 members, has developed a divide similar to the one existing “in the society we live in,” Orr said.

“There are two extreme camps,” Orr said, describing one side as more supportive of prosecutors and the other more supportive of defense attorneys.

Orr sees a mindset of antagonism in disciplinary cases because many of the bar lawyers are former prosecutors themselves.

Orr and other lawyers question whether this prosecutorial background is why the bar has pursued defense lawyers who have exposed prosecutorial misconduct and other flaws in the justice system.

“The ability to use the bar disciplinary process as a tool, a weapon, so to speak, is pretty powerful,” Orr added.

Katherine Jean, who is the head lawyer for the bar, said in a recent statement that the great majority of investigations begin when one person files a grievance alleging misconduct by another person. Complaints can be filed anonymously.

“The Bar recognizes that, as a result, not all misconduct is investigated or addressed, but it can only investigate situations that are brought to its attention or that it learns of from public reports of misconduct,” Jean said following a request for comment from Margaret McDermott Hunt, president of the State Bar.

Jean said when misconduct allegations are reported to the bar, a grievance committee made up of lawyers and non-lawyers evaluates whether there is probable cause to believe the actions were a violation of the Rules of Professional Conduct.

The “guiding principle is that the protection of the public requires all lawyers – no matter what types of practices they have or what situations they may find themselves in – to comply with the Rules of Professional Conduct,” Jean said.

“As a profession integral to the functioning of one of our branches of government, lawyers are justifiably held to high standards,” Jean added. “Inherent in those high standards is the principle that the ends cannot justify unethical conduct as a means to an end. The State Bar has and will apply those high standards thoughtfully and consistently.”

Anne Blythe: 919-836-4948, @AnneBlythe1

http://www.newsobserver.com/opinion/op-ed/article54328220.html#storylink=cpy

JANUARY 12, 2016 4:39 PM

‘Making a Murderer’ about justice, not truth

Searing images of law enforcement abuses in Chicago, Cleveland and elsewhere have eroded the public’s trust in police power on the street

At the same time, serialized true-crime programs, such as “Making a Murderer” and the first season of the podcast “Serial,” are bringing the failures of due process into focus

The real contribution of these documentaries is not to ask “whodunit” but to reveal what was done to defendants

BY LISA KERN GRIFFIN

The release last month of “Making a Murderer,” a 10-part documentary from Netflix, capped a year in which popular culture’s portrayal of the criminal justice system seems to have shifted. Out with the old tropes about truth-seeking investigators and tidy resolutions; in with the disquieting, dysfunctional reality of many courtrooms and police stations.

The documentary chronicles the trials of Steven Avery and his nephew Brendan Dassey for the 2005 killing of Teresa Halbach. Its depiction of alleged police corruption and prosecutorial bias has inspired some viewers to quip that they hope they are never arrested in Manitowoc, Wisconsin, the county where the two men were convicted. But what happened to them happens to low-status criminal defendants across the country all the time.

Searing images of law enforcement abuses in Chicago, Cleveland and elsewhere have eroded the public’s trust in police power on the street. At the same time, serialized true-crime programs, such as “Making a Murderer” and the first season of the podcast “Serial,” are bringing the failures of due process into focus: careless police work, flawed forensics, forceful interrogations, unreliable witnesses and the woeful condition of state-funded criminal defense.

It takes hours rather than seconds to appreciate this procedural violence. That hasn’t stopped listeners and viewers. “Serial” was downloaded 75 million times. (Netflix doesn’t release any audience statistics, but “Making a Murderer” has generated widespread discussion in social and traditional media.) Yet after the shows are over, audiences still hunger for narrative resolution. Reddit users have written thousands of posts about “Making a Murderer,” weighing evidence and acting as armchair detectives trying to find the “true” perpetrator. Petitions seeking pardons for Avery and Dassey have gathered 380,000 signatures. A spinoff from the “Serial” podcast, sponsored by the defendant’s lawyers, updates listeners on appellate claims and advocates for a retrial.

No tidy conclusions

Why wouldn’t Americans want a satisfying finale? Our culture is steeped in procedural crime dramas. Hundreds of “Law and Order” episodes concluded with definitive guilty verdicts, punctuated by a signature sound effect. CBS’s hit show “CSI: Crime Scene Investigation” suggested that instant forensics always yielded definitive results.

The desire for closure is understandable, but a tidy conclusion is rarely attainable, and all of the Internet sleuthing and speculating can be distracting. Yes, post-conviction DNA testing and the work of Innocence Projects around the country have exonerated more than 1,700 defendants. Those cases heighten awareness of potential errors and demonstrate that wrongful convictions happen. But Americans shouldn’t expect certainty about innocence. Sometimes the focus on finding new evidence to exonerate distracts from the question of whether the old evidence proved guilt.

Avery, the focus of “Making a Murderer,” had a 1985 sexual assault conviction overturned after forensic proof of his innocence emerged. In the closing line of the documentary, he says, “The truth always comes out sooner or later.” That line feels unfortunately misplaced. We may never know the facts behind the gruesome murder of which Avery was accused. Nor did “Serial” “solve” the 1999 murder case it exhaustively explored.

Procedural protections

The lack of resolution may be as valuable a lesson as the evidence of law enforcement misconduct. When I was a federal prosecutor, I had the luxury of working only on carefully screened cases with strong evidence. But fewer than 70,000 federal felonies are prosecuted each year, while roughly 2.5 million felonies proceed through the state courts. Many state cases involve near-simultaneous investigation and prosecution. One rarely finds out “what really happened.”

The prosecutor in Avery’s trial argued in his closing statement that “reasonable doubts are for innocent people.” They are not. And procedural protections like access to defense counsel and freedom from coerced interrogations extend to both the innocent and the guilty. The real contribution of these documentaries is not to ask “whodunit” but to reveal what was done to defendants.

As listeners and viewers consume these stories, they are reminded of the humanity of the individuals involved – and they learn to see the defendants as more than abstractions. That knowledge should lead people to understand that resolution and justice are not the same thing. And whether or not the truth of these crimes ever comes out, shows, podcasts and narrative articles can make the public aware of distortions that occur in the legal process.

The United States’ criminal justice system needs fewer guilt-assuming interrogation tactics, more disclosure of potentially exculpatory information to the defense, expanded oversight units within prosecutors’ offices to investigate potential miscarriages of justice and fuller appellate scrutiny of convictions.

The moment is ripe for reform, culturally and politically. There is even some bipartisan support for legislation to reduce some federal criminal sentences and address the problem of mass incarceration. But unless our empathy generates demand for greater procedural integrity, only the narrative will change while the system stays the same.

The New York Times

Lisa Kern Griffin is a professor at Duke Law school.

http://www.newsobserver.com/opinion/letters-to-the-editor/article55483655.html

LETTERS TO THE EDITOR

JANUARY 19, 2016 5:07 PM

Lew Powell: A panel for prosecutors

The Jan. 15 editorial “The limits of zeal” contrasted the penalty given Christine Mumma with the absence of rebuke to prosecutors for the “massive failure” that kept her client wrongfully imprisoned for more than 36 years.

It is not enough simply to point out this shameful disparity. The public embarrassment resulting from the hearing should move the North Carolina State Bar to empower a separate disciplinary panel to deal only with prosecutorial excesses. Such a panel would not lack for business.

LEW POWELL

CHARLOTTE

http://www.newsobserver.com/news/local/crime/article28770190.html

JULY 26, 2015 5:47 PM

NC Senate to take up execution protocol changes

Bill hides lethal injection details

Legal challenges expected

No executions in NC since 2006

BY ANNE BLYTHE

[email protected]

RALEIGH – As botched executions across the country have turned the public focus toward methods used to kill death-row inmates, the state Senate is poised to take up a bill that would hide the supplier, manufacturer and dosage of lethal drugs used for capital punishment in North Carolina.

The bill, titled “Restoring Proper Justice Act,” is scheduled for a vote by the full Senate Monday night. The proposed legislation, which was introduced in the state House of Representatives by Rep. Leo Daughtry, a Republican from Smithfield, also repeals the law requiring physicians to monitor lethal injections.

Instead, under the wording approved on Thursday by a Senate judiciary committee, medical professionals, such as physician assistants, nurse practitioners, registered nurses, paramedics or emergency medical technicians could stand in if a doctor refused.

Daughtry, who was at the committee meeting to introduce the proposal already approved by the House, said several times the lawmakers were not there for “an argument about the death penalty.” “We already have the death penalty,” Daughtry said. “The roadblocks in front of the death penalty have stopped us from using the punishment.”

Though North Carolina is one of 31 states with the death penalty, there has not been an execution since 2006. A series of lawsuits filed in the state courts has created a de facto moratorium on executions for the past nine years. And some wonder whether more legal challenges will follow the proposed changes to the execution protocol.

“It’s not going to speed up executions,” said Ballard Everett, a Republican consultant with Conservatives Concerned About the Death Penalty who voiced his opposition at the committee meeting. “Lawsuits are inevitable with this piece of legislation.

“So we’re encouraging the legislature to really debate the bigger question — so if we’re not going to use the death penalty, why not go ahead and replace it with life in prison without parole and save the state $11 million dollars this year?”

The debate last week, though, was about how much information the public should possess about North Carolina’s execution protocol. Botched executions in Oklahoma, Ohio and Arizona in 2014 have prompted some states to hide that information from public view and oversight. Other states have called for more openness.

The North Carolina bill would exempt the execution procedure from any oversight by the state’s Rules Review Commission and leave the decision about whether to make the protocol public up to the secretary of the state Department of Public Safety, a non-elected post.

Sen. Angela Bryant, a Democrat and lawyer from Rocky Mount, introduced several proposed amendments in an attempt to remove the cloak of secrecy from the way the state carries out its harshest punishment. “This is not a time to remove public input and awareness of what you’re doing in government,” Bryant said.

There are 148 people on North Carolina’s death row, one of whom has been there since 1985.

In 2013, the public safety secretary changed North Carolina’s execution protocol from using a three-drug cocktail to a single-drug lethal injection. The change came at a time when many European-based drug manufacturers had banned U.S. prisons from using their drugs in executions. The protocol change also came shortly before an important court hearing for a lawsuit filed by N.C. death row inmates in 2007, challenging the lethal injection as “cruel and unusual punishment” and therefore a constitutional violation. That lawsuit is pending.

Bryant failed to persuade the Senate judicial committee to provide the public with information about the manufacturer of the lethal drugs to be used in executions. “It’s a volatile issue,” Daughtry said. “If you tell them where the drug comes from, there’ll be 300 people outside the (manufacturer’s) building. That is not something we want to occur.”

Bryant responded: “Abortion is a controversial thing, but we don’t try to hide where the clinics are. There could be 300 people out there, and you’d stand on your head for their rights.”

David Weiss, a staff attorney for the Durham-based Center for Death Penalty Litigation, argued during the public comment period for more openness for what he described as “one of the most important, one of the most serious functions that our state government undertakes.”

“The process should be done openly, transparently so the people of North Carolina have input,” Weiss said. “This really removes transparency from the execution process.”

http://www.newsobserver.com/news/politics-government/state-politics/article16529624.html

MARCH 27, 2015 7:14 PM

NC lawyers face bar complaints for Racial Justice Act work

BY ANNE BLYTHE
[email protected]

Two defense attorneys face accusations of professional misconduct for a piece of their work on the first successful challenge under the Racial Justice Act.

Gretchen Engel, director of the Durham-based Center for Death Penalty Litigation, and Cassandra Stubbs, a lawyer with the American Civil Liberties Union Capital Punishment Project, were among a team of attorneys who used the short-lived law to convert a North Carolina death row inmate’s sentence in 2012 to life without possibility for parole.

Now the attorneys face possible punishment from the N.C. State Bar.

Some legal analysts have characterized the allegations of wrongdoing as so minor and “questionable” that they think politics could be at play.

It is unclear who filed the complaints against the attorneys. That’s not part of the public record.

At issue is whether Engel and Stubbs violated professional codes of conduct in relaying information to the courts after interviewing two African-American men excluded from serving on the 1994 jury that decided the fate of Marcus Reymond Robinson.

Robinson, an African-American male, was sentenced to death almost two decades ago for the 1991 killing of Erik Tornblum, a white teenager.

In April 2012, Judge Gregory Weeks issued a landmark ruling in Cumberland County Superior Court saying prosecutors across the state had engaged in deliberate and systematic racial discrimination when striking black potential jurors in death penalty cases.

Under the Racial Justice Act, Weeks was able to reduce the death sentence for Robinson to life in prison with no possibility for parole.

Prosecutors, according to a Michigan State University Law School study that was part of the record in the Robinson case, used peremptory challenges to remove blacks from juries more than twice as often throughout North Carolina as they used them for whites. In Cumberland County, it was almost three times as often.

Prosecutors have disputed those statistics and immediately banded together not only to appeal the Weeks ruling but to orchestrate the overturning of the unique North Carolina law that allowed inmates to use statistics to bolster claims of racial bias.

Engel and Stubbs recently found out that someone filed complaints against them with the State Bar, the organization that oversees North Carolina lawyers.

The bar allegations focus on sworn statements the attorneys introduced from the men who had been part of the 1994 jury pool but not selected for the panel.

The bar complaint contends the lawyers included inaccurate information for the court to consider that ranged from a wrong address to a recollection from one of the potential jurors that did not jibe with the official trial transcript.

When Engel and Stubbs received notice of the allegations against them, according to their attorneys Amos Tyndall of Chapel Hill, and Brad Bannon and Alan Schneider of Raleigh, they brought them to the attention of Judge Weeks.

“He noted that the affidavits were not introduced for substantive purposes, and the purpose for which they were introduced was not even in dispute,” Bannon and Schneider, the attorneys for Stubbs, said in a joint statement. “He gave them no weight, and he did not rely on them in 378 pages of orders explaining his rulings.”

The Racial Justice Act proceedings for Robinson extended over 20 days of testimony. Eighteen witnesses testified, and more than 298 exhibits were included in the record.

“Weeks also made another important finding,” Bannon and Schneider said in a statement echoed by Tyndall, the attorney for Engel. “[I]f there were any inaccuracies in the two affidavits, they were not the product of intentional misconduct, willfulness or bad faith.”

Engel and Stubbs plan to ask for hearings before the State Bar to fight the complaints.

Legal scholars and analysts with no ties to the cases of Racial Justice Act proceedings questioned whether the high-profile nature of the Robinson case might be playing a part in the misconduct allegations.

“The State Bar does not explain publicly why it chooses to proceed on some complaints from the public and not on others, so we have to guess,” said Bernie Burk, a UNC-Chapel Hill law professor with expertise in ethics and professional responsibility. “The Racial Justice Act case at issue is very high-profile and extremely controversial, with many people holding strong views on both sides. And the complaints suggest that the people who accused the defense lawyers believe that the discrepancies they’ve identified were, in the words of the ethical rules, ‘prejudicial to the administration of justice.’

“Given the high profile and intensity of the controversy and the gravity of what the accusers claim, the Bar may have felt that the best course is to hold a formal proceeding that will result in an evidentiary record and a reasoned decision, so that everyone will understand the reasons for the result.”

Michael Frisch, a Georgetown University law professor who worked for 18 years as a bar prosecutor for the District of Columbia, wrote about the two cases on a blog he started to offer insight into such proceedings.

“I look at this prosecution, and I see the charges looking very questionable to me,” Frisch said in a telephone interview Friday. “I wouldn’t see them prosecuting this if it was Joe Schmo on the street or a prosecutor. And as a result, this is leading me to believe this is a politically motivated prosecution.”

Blythe: 919-836-4948; Twitter: @AnneBlythe1

Text cache

Originally at http://www.newsobserver.com/2014/06/14/3935038/mass-hysteria-of-sexual-satanic.html?sp=/99/108/

Point of View

Mass hysteria of sexual, satanic ritual abuse and a miscarriage of NC justice

BY ALLEN FRANCES

June 14, 2014

Andrew Junior Chandler has been unjustly incarcerated in a North Carolina prison for 27 years, charged with a crime that almost surely never happened.

In 1986, Chandler was employed as a van driver for a day care center in Madison County. His nightmare began when a child supposedly announced to her mother: “We’ve been (having sexual intercourse.)” As was typical of the time, the investigation went far beyond any reasonable pursuit of real evidence and instead depended on the unsupported and improbable testimony of suggestible 3- to 5-year-old children.

Chandler’s case occurred during a period of national mass hysteria. Across the country, young kids suddenly began accusing their day care workers of performing bizarre acts of sexual and satanic ritual abuse. It turned out that the charges were all bogus – the result of bullying and coaching by overzealous investigators, gullible therapists and frightened parents.

The most publicized cases were at the McMartin Preschool in Manhattan Beach, Calif., and the Little Rascals Day Care in Edenton – but dozens of similar misguided prosecutions were brought by ambitious prosecutors throughout the country. Janet Reno, who got the ball rolling in Florida, later became U.S. attorney general. Mike Easley later became governor of North Carolina.

The epidemic of wild accusations turned out to be no more than a media-driven witch hunt, in many ways similar to the Salem trials 300 years earlier. The craze brought out the credulous and mean-spirited worst in parents, police, prosecutors, the press, therapists, judges and juries. Never once was any prosecutor able to produce convincing physical evidence or a single adult eyewitness.

The case against Chandler was built on shifting and unconvincing arguments. Seven of the children who rode in his van claimed that two adult passengers, both mentally impaired, had performed sex acts on them. Then, after months of prosecutorial and therapist pressure, the children decided it was actually Chandler – or perhaps Chandler, the two impaired adults and also Pinocchio! – who would repeatedly drive off the route to a park by a river, strip the children of their clothes, troop them down to the river, put them all in a rowboat, commit a variety of sexual acts, put them back on the bus and then take them home.

Amazingly, these far-fetched accounts were taken as factual evidence even though there had been no previous indication of any problems with the children, with the day care center or with Chandler.

Only Chandler was prosecuted. The two impaired adults testified against him in exchange for a probation-only guilty plea. Other mentally impaired adults and an employee of the day care testified they had seen no misconduct. The prosecution relied almost exclusively on hearsay from adults. On cross-examination, four child-witnesses all admitted they were only “pretending” to have been molested; they were repeating tales they thought the adults wanted them to tell.

Nonetheless, an Asheville jury convicted Chandler – persuaded by “expert” testimony that was not the least bit expert and that by today’s legal standards would certainly not be admissible – and he received two life sentences. A succession of appeals has failed to win him the new trial that would allow a fair and thorough reinvestigation of the evidence, uncontaminated by the hysteria of the time and allowing testimony that is only now considered admissible.

The craze petered out in the late 1990s, but not before scores of innocent day care workers were convicted by juries or intimidated into plea agreements. Seven adults were imprisoned in the Little Rascals case, but within a few years all charges were dropped because of prosecutorial errors. They were appropriately vindicated and released – while Chandler still languishes in prison.

I feel partly responsible. During this period of temporary national insanity, I was chairman of the task force preparing DSM IV, psychiatry’s Diagnostic and Statistical Manual of Mental Disorders. This position gave me a bully pulpit that I could have used to point out the utter nuttiness of a national witch hunt based on the testimony of suggestible kids and phony experts. To my shame, I remained silent.

The damage is done and cannot be undone. But the very least we can all do now is admit our mistakes, set the record straight and re-examine the charges that have imprisoned Andrew Junior Chandler for more than 27 years.

Between 1901 and 1905, N.C. Gov. Charles B. Aycock granted 369 pardons. The pardon is a time-honored method of righting legal wrongs that has a necessary place in American jurisprudence. But pardons in North Carolina have almost disappeared since Gov. Jim Hunt left office in 2001. It is impossible to imagine a more deserving applicant than Andrew Chandler.

Let’s hope that Gov Pat McCrory will review the mistaken judgment of his misnamed “clemency office” and correct this stain on the reputation of North Carolina justice.

Allen Frances, M.D., is professor emeritus and former chair of the Department Of Psychiatry and Behavioral Science at Duke University.

http://www.freerepublic.com/focus/f-news/586606/posts

Summer 2001

Sex, Lies, and Audiotapes

Rael Jean Isaac explains why we’ve been so willing to believe fantastic tales of sexual abuse

There is a widespread belief that sexual abuse of children is endemic to society. This is a relatively new notion. In fact, it can be traced to a particular moment in history: April 17, 1971.

On that day the New York Radical Feminists, a group that at its height boasted no more than 400 members, held a groundbreaking conference on rape in New York. For two days, women held forth on a subject long considered taboo. Susan Brownmiller, who would go on to write Against Our Will, a classic in the literature of rape, later described a speech given by Florence Rush as the highlight of the event.

“I have been to many feminist meetings,” Brownmiller recalled, “but never before, and not since, have I seen an entire audience rise to its feet in acclaim. We clapped. We cheered.”

Rush was an unlikely star for such a gathering. A middle-aged social worker, who had never been raped, she outlined statistical studies suggesting that sexual abuse of children, including incest, was a more widespread problem than was generally recognized. It was Rush’s conclusion that electrified her audience: “The family itself is an instrument of sexual and other forms of child abuse,” Rush declared. She added that this abuse “is permitted because it is an unspoken but prominent factor in socializing and preparing the female to accept a subordinate role…. In short the sexual abuse of female children is a process of education that prepares them to become the wives and mothers of America.”

Many women at the gathering had backgrounds in the New Left of the 1960s. They felt their male comrades had exploited them, relegating them to making coffee, typing, and sex.

Now they could show that feminists had uncovered the great American secret: Behind the picket fences, hidden by those starched suburban curtains, fathers were raping daughters to prepare them for their proper role in society. Beyond racism, imperialism, and capitalism lay the true root of evil¾patriarchy.

Before Rush’s speech, feminists had given little thought to incest. Author Andrea Dworkin recalled that before the conference “we never had any idea how common it was.” In the decades following Rush’s talk, feminists more than made up for their earlier unawareness, competing with each other in elevating the number of victims.

Catharine MacKinnon, the law professor who helped develop the legal definitions of sexual harassment, announced (absent any evidence) that 4.5 percent of all women are victims of incest by their fathers and, if brothers, stepfathers, uncles, and family friends are thrown in, the figure rose to 40 percent. “In fact,” wrote MacKinnon, “it is the woman who has not been sexually abused who deviates.” Seemingly scholarly studies by feminists-with-credentials such as Harvard psychiatrist Judith Herman bolstered the case for widespread incest. Herman dedicated her 1981 book, Father-Daughter Incest, to the women “estimated by us to be in the millions, who have personally experienced incestuous abuse.” No wonder Andrea Dworkin wrote that, for a woman, the home is the most dangerous place in the world!

As the feminists saw it, bringing incestuous rape out of the closet would finally vindicate the truth of women’s experience. Sigmund Freud, the father of modern psychotherapy, had believed early in his career that sexual abuse was the cause of his female patients’ neurotic symptoms. Later, however, Freud dismissed such testimony from his female patients as fantasy. According to Herman, Freud simply could not confront the reality that incest “is an inevitable result of patriarchal family structure.”

Believe the women. Believe the children. These refrains became the mantra of the incest movement. While the women’s movement would be enormously successful in turning sexual abuse-including incest-into a major public issue, women, ironically, would become the chief victims of the hysteria it generated.

The obsession with this supposedly rampant sexual abuse played out in two ways: “Believe the women” became the repressed memory hysteria. “Believe the children” turned into the daycare hysteria.

At the time of the conference, psychiatric textbooks estimated the rate of father-daughter incest at one to two for every million women in the United States. If that figure was accurate, it was not surprising that incest attracted little public attention. On the other hand, if, in fact, fathers were sexually abusing millions of daughters, why did no one know of it?

The theory of “repressed memory” provided the answer. A woman was so traumatized by being molested by her father, the theory said, that she banished the memory from her conscious mind. Paul McHugh, head of the Department of Psychiatry at Johns Hopkins Medical School, is skeptical of repressed memory. McHugh sees the development of the concept as one of the “misadventures” of the last thirty years that show “the power of cultural fashion to lead psychiatric thought and practice off in false, even disastrous, directions.”

However poorly grounded in science, the theory helped explain why so few women remembered their incestuous experiences until they entered therapy. According to the theory, the intact, repressed memory festered in a special part of the brain producing, as psychiatrist Lenore Terr put it, “signs and symptoms” that disrupted the woman’s life. While Terr and Herman were important in lending a cloak of medical legitimacy to the idea of repressed memory, the most influential work was The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse by Ellen Bass and Laura Davis, neither of whom had training in psychiatry. Published in 1988, The Courage to Heal has sold more than 700,000 copies.

The book asked such questions as: Do you have difficulty expressing your feelings? Problems trusting your intuition? Have an eating disorder? Feel different from other people? Feel powerless, like a victim? If you answered “yes” to these or exhibited any of a host of other “symptoms,” The Courage to Heal said that it was time to consider the possibility that you had been sexually abused as a child.

Convinced sexual abuse was endemic and seeing such symptoms as “evidence,” therapists of all types, from psychiatrists on down, set out to “help” patients unlock their buried memories. They used a variety of methods, including hypnosis, injections of sodium amytal (“truth serum”), guided imagery, dream work, participation in “survivor groups,” even massage therapy to recover “body memories” of abuse. Yet as social psychology professor Richard Ofshe points out in Making Monsters, the scientific grounding for all this was absent.

Indeed, studies on memory show that intense emotional experiences are the least likely to be forgotten. Ironically, Dr. Terr’s reputation was based on her study of twenty-six children who had been kidnapped from a school bus in Chowchilla, California, and entombed in a truck trailer. She found that years after the traumatic experience each child retained detailed memories of the event. Nor is there any evidence that traumatic memories are stored in pristine form in a special part of the brain. On the contrary, as forensic psychologist Dr. Terence Campbell points out, brain-imaging studies show memory and imagination involve the same areas of the cerebral cortex¾it is hard to separate the two.

As for hypnosis (and sodium amytal), the American Medical Association’s Council on Scientific Affairs states: “Contrary to what is generally believed by the public, recollections obtained during hypnosis not only fail to be more accurate but actually appear to be generally less reliable than non-hypnotic recall.” The American Psychiatric Association guidelines note that “no specific unique symptom profile has been identified that necessarily correlated with abuse experiences.”

While feminists always assumed the abuser was male, Florence Rush found in her work with (genuinely) abused children that these young victims frequently focused their rage on their mothers. Rush argued that it is men, not women, who actually rape our young and it is time for them, not women, to be held responsible. Or, as feminist writer Robin Morgan succinctly put it, “Kill your father, not your mother.” Still, a 1993 survey of over a thousand cases by the False Memory Syndrome Foundation, the Philadelphia-based organization that has been in the forefront of exposing problems with recovered memory therapy, found that in fully a third of cases, the mother was accused of active sexual abuse.

Even those daughters who identified their fathers as the abuser blamed their mothers for failing to protect them. Some remembered the mothers’ holding them down while their fathers raped them. That is what Beth Rutherford claimed happened. Rutherford, after two years in therapy, “remembered” her minister-father twice impregnating her and then performing a coat-hanger abortion (never mind that a medical examination showed she was a virgin). Rutherford convinced her sisters that they were also in danger of being murdered by their father. One sister actually went into hiding, and all three cut off any communication with both parents. Beth Rutherford has since recanted the accusations and written about her family’s ordeal.

While it may be hard to summon up much sympathy for the daughter who rips apart her family because of therapist-induced delusions, in many cases she is clearly the biggest victim of all. As therapy proceeds, she produces ever more lurid memories. Indeed, in an estimated 15 percent of cases, the repressed memory patient develops memories of satanic ritual abuse. Increasingly satanic cult “survivors” are realizing they were victims of their therapists and are suing them for malpractice. The evidence of therapist misconduct is so impressive, and jury verdicts have been so high that many insurance companies now settle during the trial.

Dr. Bennett Braun’s insurance company settled for $10.6 million the day his trial was to begin. Dr. Braun’s patient, Patricia Burgus, had, through therapy, become convinced that she had been the high priestess of a satanic cult. Hospitalized for over two years, Burgus “remembered” lit torches pushed inside her and having to eat body parts of 2,000 people in one year.

While under the care of Dr. Kenneth Olson, Nadean Cool became convinced that she had 120 personalities (including that of a duck), had knifed babies in the heart and passed them around to other cult members to eat. The psychiatrist even performed an exorcism on Cool while she was tethered to a hospital bed. In the Cool case, the insurance company settled for $2.4 million after fifteen days of testimony.

If “believe the women” produced the nightmare of repressed memory therapy, “believe the children” led to something arguably more horrific, the daycare trials. Many convicted of sexual abuse of children in their care during the 1980s and early 90s, when the hysteria was at its height, have since appealed their cases and are now free. Gerald Amirault, who has been in prison since 1986, has not been so fortunate. Amirault, whose family operated the Fells Acres Day School in Malden, Massachusetts, was convicted of abusing children with a magic wand while wearing a clown costume.

Amirault’s then sixty-year-old mother, Violet, was convicted of raping children and assaulting them with a butcher knife (there were no scars). Gerald’s younger sister, Cheryl, was supposed, among other things, to have slaughtered bluebirds and cut off the leg of a squirrel in front of the children. Violet Amirault was released from prison before her death in 1997. In Cheryl’s case, a judge revised and revoked her sentence. A condition of Cheryl Amirault’s release was that she promise to undertake no further legal efforts to prove her innocence.

The Amirault case did not involve “recovered” memories but rather the testimony of small children. Florence Rush once made the valid point that, traditionally, investigators had been too quick to dismiss children’s accounts of abuse. Rush argued that children differentiate between make-believe and reality “often more accurately than adults.”

Indeed, a number of judges and juries have found defendants guilty on the assumption that children could not make such things up. What they have failed to recognize is the role of therapists in evoking stories of hideous abuse from little children, who recount their stories with such conviction on the witness stand. In Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, psychology professors Stephen J. Ceci and Maggie Bruck examined hundreds of transcripts of therapist interviews of small children in the daycare cases.

They described the mechanisms by which children who initially denied that anything bad had happened were led eventually to recount lurid tales of abuse. These children had been subjected to, among other things, repeated questioning by multiple interviewers who refused to take “nothing happened” for an answer and selective reinforcement-children were rewarded with police badges in exchange for incriminating statements and berated when denying that abuse occurred.

There was also peer pressure (the children were told what other children had supposedly revealed and were told they could help their friends by saying the same things). The children also had to answer leading questions. The use of special anatomical dolls with enlarged genitalia also provided ample opportunities for misinterpretation. Ceci and Bruck point out that a child may insert a finger into a doll’s genitalia simply because of its novelty, just as a preschooler, given a doughnut, is likely to put a finger into the hole.

One of the worst stories is that of Kelly Michaels. Ceci and Bruck devote special attention to the questioning of children in the Michaels case. Freshly graduated from a small Catholic college near Pittsburgh, Michaels was arrested in 1986, charged with sexually abusing dozens of children at the Wee Care daycare center in New Jersey. After a lengthy jury trial, Michaels was sentenced to forty-seven years in prison. Ceci and Bruck filed an amicus brief in her appeal. Signed by forty-six child psychologists, the brief argued that testimony had been elicited from children in “a shocking manner” by frightening and bullying them and through sexually explicit interviewing.

It is worth noting that in the Michaels case, as in the other daycare cases, the improbability of the entire scenario disturbed not judge, jury, or media. Michaels was accused of raping almost all the children in the daycare center with knives, forks, spoons, Lego blocks (one child testified she had forced the socket end of a light bulb into her vagina)-all during regular school hours for a period of seven months. Audiotapes of the children’s original testimony showed that some children testified their parents were present during these goings-on. One child asserted that the head teacher had walked in as Kelly was penetrating the children with assorted utensils, took the silverware, and put it in her briefcase. The prosecution disposed of such inconvenient testimony by explaining that these were “rescue fantasies.”

No member of the staff (including the head teacher) at Wee Care had noticed anything amiss in all those months and no child had complained to his parents. So, while, in his summing up, Judge William Harth adjured the jury to “use your common sense,” neither he nor the jury showed much of that vital commodity. Michaels had been imprisoned for five years before the appeals court threw out her conviction on the grounds that the children’s testimony had been tainted by improper interviewing techniques.

As for the women with “repressed memories” who cut themselves off from their parents, even going so far as to sue them in civil or criminal court, many have recanted their accusations or reestablished ties without saying they were wrong. Many families remain permanently estranged. Many of the women convicted in the daycare or sex ring cases have by now been released (the men are another story). But the lives of all those involved were shattered, and it is hard to put Humpty Dumpty together again.

The feminists who rallied around Florence Rush believed that they could end child abuse by abolishing the patriarchal family, which was its “cause.” Instead they launched a child abuse hysteria in which pseudo-science has flourished. Both men and women have been its victims.

– Rael Jean Isaac is most recently co-author of Madness in the Streets: How Psychiatry and the Law Abandoned the mentally Ill (Free Press). 

http://www.salon.com/2014/04/18/eyewitness_testimony_no_longer_a_gold_standard/

Eyewitness testimony no longer a gold standard

NIGEL DUARA, ASSOCIATED PRESS

PORTLAND, Ore. (AP) — The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.

The problem is that decades of studies show eyewitness testimony is only right about half the time — a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.

Reform advocates say procedures long regarded as solid police work, from bringing a witness to a crime scene where he might see a suspect in handcuffs to the subtle encouragement of a detective during a police lineup, can fundamentally alter what someone believes they saw.

“It’s not the case that eyewitnesses are inherently unreliable,” said Gary Wells of Iowa State University, who has researched the field of eyewitness identification since the 1970s. “But we can make it better by cleaning up the procedures around it.”

Prosecutors, however, have led the charge against the changes, as statistics and scientific studies reveal the gaps in eyewitness testimony, including how it has led to wrongful convictions, at a time when technology and other forensic analysis are being given greater weight.

In Maryland, legislators this week passed a bill that overhauls the state’s eyewitness identification procedures, but not before the prosecutor for Baltimore County testified against it — part of a feeling by prosecutors across the country that their profession is under attack.

“What we see is a fairly organized and aggressive attack on all forms of evidence prosecutors use to get convictions,” said Scott Burns, executive director of the National District Attorneys Association.

Burns said criminal defense attorneys, groups that try to get wrongful convictions overturned and the American Civil Liberties Union are part of a bloc that is selecting outlier cases of prosecutorial misconduct or witness mishandling and applying that to the entire system.

It’s that attitude that gives advocates of reform migraines, said Rebecca Brown, state policy reform director for the Innocence Project, which pursues exonerations of the wrongfully convicted.

“We joke in the office that it’s like climate change,” she said. “There’s settled science, and then there’s this group of people denying it.”

Whether in a laboratory or at a police station, studies have shown that eyewitnesses are about half as likely to choose the correct suspect out of a lineup as they are to choose some combination of the innocent fillers or no suspect at all when the correct one is present.

The U.S. Supreme Court had a chance to establish a national standard for eyewitness testimony when it handled a 2012 case from New Hampshire. The court instead delegated that responsibility to the states, which could choose to overhaul their laws or do nothing at all. Most chose the latter.

Advocates of reform seek several major changes to the way police and prosecutors operate.

They want “blind” administrators of lineups — people who don’t know who the suspect is, and a lineup that doesn’t unfairly single out a suspect. They want police to record an eyewitnesses’ degree of confidence in his identification, and they want any photo lineups of suspects to be randomized.

Text cache

 Originally at http://www.newsobserver.com/2014/01/18/3541972/like-salem-witches-edenton-seven.html

Point of View

Like Salem’s ‘witches,’ it’s time for NC to exonerate the Edenton Seven

BY LEW POWELL

January 18, 2014

Twenty-five years ago Sunday, a child-abuse complaint filed with the Department of Social Services in Edenton ignited what would become the state’s longest, costliest and surely most bizarre criminal trial.

Bob Kelly, co-owner of the Little Rascals Day Care Center, and six other innocent defendants fell victim to an ad hoc conspiracy of hysterical parents, ill-trained therapists and malicious prosecutors.

Edenton attracted national infamy, thanks to Ofra Bikel’s extraordinary “Frontline” trilogy on PBS, but it was far from unique. During the 1980s and early ’90s a wave of nonexistent “satanic ritual abuse” claims shut down scores of day cares such as Little Rascals, McMartin in California and Fells Acres in Massachusetts. In virtually every instance the charges lacked any basis in fact. Today no reputable psychologist or other social scientist will argue otherwise. The defendants were innocent victims of a “moral panic” that bore striking similarities to the Salem witch hunts 300 years earlier.

In the beginning more than 90 children at Little Rascals accused a total of 20 adults with 429 instances of sexual abuse over a three-year period. Among the alleged perpetrators, though not charged: the sheriff and mayor.

Along with sodomy and beatings, the therapist-generated accusations detailed a baby killed with a handgun, a child hung upside down from a tree and set on fire and countless other fantastic incidents involving spaceships, hot air balloons, pirate ships and trained sharks.

Prosecutors used exorbitant bail and court-calendar delays to keep defendants jailed in hopes at least one would turn against their supposed co-conspirators. Showing remarkable courage, none did. Five defendants had to wait longer to face their accusers in court than anyone else in North Carolina history.

Bob Kelly was convicted of 99 counts of child abuse and sentenced to 12 consecutive life sentences. He would serve six years in prison before the N.C. Court of Appeals resoundingly overturned his conviction and that of day-care cook Dawn Wilson, who had served two years.

Between 1991 and 1997, “Frontline” devoted a total of eight hours to the plight of the Edenton Seven. Although “Innocence Lost” failed to deter prosecutors, it exposed their brutal tactics and fostered nationwide dismay at North Carolina justice.

With each passing year, the absurdity of the Little Rascals charges has become more obvious. But no admission of error has ever come from prosecutors, police, interviewers or parents.

Even after all the defendants were released, Assistant District Attorney Nancy Lamb bitterly continued to insist they were guilty.

In 2007 Attorney General Roy Cooper granted the defendants in the Duke lacrosse case a “statement of innocence.” In 2012 Gov. Bev Perdue pardoned the Wilmington 10. But the Edenton Seven have never received exoneration from the state.

Claude Sitton was editor of The News & Observer from 1970 to 1990. “When I look back,” he told an oral history interviewer in 2007, “I think my greatest mistake (was) my failure … to make sure we had a top-notch investigative reporter on the Little Rascals case. … I think had we sent someone like Pat Stith down there, that would have been it.

“That prosecutor had gone wild, eaten up by ambition, I suppose, to hang these people, these people who operated the Little Rascals Day Care Center, no matter how. As it turned out, (the Edenton Seven were eventually released), but it wrecked their lives forever. And I still feel sorry about that.”

Unlike Sitton, the state of North Carolina seems remorseless. Eighteen months ago I petitioned Attorney General Roy Cooper to issue a statement of innocence for the Edenton Seven. “The Little Rascals case not only shattered the lives of the defendants,” my letter argued, “but also left a deep and ugly stain on the reputation of the State of North Carolina.

“In 2001 Massachusetts Governor Jane Swift signed a resolution proclaiming the innocence of the victims of the Salem Witch Trials. In time, such victims of the ritual-abuse day-care panic as the Edenton Seven will surely receive similar exoneration. Why not now? Why not in North Carolina? This is an opportunity to demonstrate moral leadership on anational scale.”

Cooper has yet to respond.

Lew Powell, a former Charlotte Observer reporter and editor, blogs at littlerascalsdaycarecase.org.