Presumed innocent until proven broke

By Michael G. Brock

On April 4, 2013, the Lawyers Weekly blog posted a notice by Ed Wesoloski that said the challenge to Michigan’s indigent defense fund would move forward:
“A suit challenging the adequacy of the state’s indigent defense system got a boost from a Michigan Court of Appeals decision that clears the way for Ingham County Circuit Court Judge Laura Baird to determine whether the case should proceed as a class action. The COA, in Duncan, et al. v. State of Michigan, turned aside the state’s arguments that Baird should have granted the state summary disposition on the plaintiffs’ request for class certification. The proposed class members are ‘present and future indigent criminal defendants subject to appointed counsel through [the state’s] indigent criminal defense system,’ COA Judge Jane Beckering wrote in the majority opinion. The core complaint is that indigent defendants receive constitutionally defective representation because the defense system is underfunded. The COA also affirmed rulings issued in previous phases of the case that plaintiffs have standing to pursue their claims, and that they have pleaded a proper cause of action.”

Tim@timdinan.com commented that: “The indigent defense system in this state is an archaic patchwork quilt of contracts, lists, schemes and plans which favor the lowest bidder in a dive for the floor. Those individuals who profit from it have had to painstakingly carve out their practices and see to those who make the appointments. While it was never meant to be career choice, many lawyers depend on these appointments to support their practices. Whatever the outcome of this litigation, the focus should be on protecting the defendants whose only defense will be from an appointed lawyer. That necessarily means that we as a society are going to pay our appointed lawyers a fair wage and give them some resources to provide a defense. To do otherwise establishes a tiered system of justice that bears the infamous slogan, ‘Presumed innocent until proven broke.’”

Last week I was in criminal court for the second time in a few months. The veracity of the above comments was, in the stark reality of that experience, undeniable. In truth I did not want to be there. After appearing at the request of Judge Carol Youngblood (certainly as fine and as fair a judge as ever put on a robe) on another case in December of last year I changed my website to remove most of the references to child sexual abuse cases, Michigan Protocol and the like. I don’t care for these cases anymore than anyone else, but perhaps for different reasons. Having done an estimated 30-40 of these cases, a few in criminal courts, but mostly in family, I was burned out on the contentiousness, the manipulation of children as tools to get back at a hated former spouse, the confirmatory bias shared by most professionals in the process, and the contempt for anyone who would consider defending someone accused of this heinous crime as opportunistic and unprincipled.

However, escape was not to be that easy. A public defender had obtained funds for an expert and was smart and humble enough to realize she needed one. After first approaching forensic psychologist Katherine Okla, she was referred to me by Daniel Swerdlow-Freed. Dr. Okla was apparently otherwise engaged, and Dr. Swerdlow-Freed had his own reasons for not wanting the case. I was told I had less than a week to prepare, and that was not enough time. I stay pretty busy with driver license restoration cases, so this would mean late nights going over forensic interviews, delaying picking up my taxes and making my year-end retirement contribution, and fixing the left front wheel bearing (in my amazing Japanese engineered car that never stops running) before the wheel literally came off. I was told there could be no adjournment.

So, the dilemma is, do I turn down this case in the interest of preserving my comfort, or do I mean it when I say I want to make the best possible use of my life? Do I do the difficult things, or merely take the easy way? Besides what I make doing what I like and what I’ve saved, there is the amount of my own money the federal government returns to me every month now that I am old, so I really don’t have to do anything I don’t want to do. I have everything I want, except the warm weather and the time to sit beside the river and play guitar.

If I go to court I’m going to take a lot of grief from a prosecutor who will argue that I’m not qualified to provide evidence because I done relatively few of these cases, and most of those in family court a few years ago. Of course, the fact that the only people with a lot of current experience in these cases are forensic interviewers who, in my experience, view themselves as part of the prosecution team is lost on them. Or maybe not. Maybe they simply believe that their view is the only true religion and that it is unnecessary to consider the other side. Maybe they believe, as seemingly most Americans believe, that the presentation of an alternate view of the evidence is inevitably and in all cases merely a ruse to allow a guilty person to walk. You tell me.

I had dinner with an attorney friend that Saturday night to celebrate his wife’s birthday. He was familiar with all the principle participants in the case and offered the comfort that at least I would pick up a check. But that was not the motivator; there is no amount of money that would get me to testify on behalf of someone I thought had committed this crime. Sexual abuse does permanent, irreversible damage. It is precisely because I know how horrific this crime is that I believe those innocent of it must be exonerated.

It was very clear to me that without an expert the defendant in last week’s case would have gone straight to prison without ever having been able to mount a meaningful challenge to the evidence against him. I truthfully didn’t expect to be allowed to testify anyway. After all, this time I wasn’t appointed by a judge who knew me and for whom I had worked in the past. I was retained by defense counsel. And I appreciated the judge’s dilemma in making the decision to allow me to testify. She probably had questions about my qualifications as an expert on the subject, but she must also have realized that without expert testimony the defense could not really present a case. Ultimately she decided that if she was going to err, it would be on the side of protecting the rights of the accused.

I do know this stuff, and I’m thorough. I felt good about the job I did. The thing that can be difficult for me because of my limited experience in criminal cases is comprehending the limitations on my testimony in a criminal verses a family law case. But it is important to understand that the dynamics of the forensic interview process are identical in both instances. My testimony in this case was restricted to the conduct of the forensic interviewers as proscribed by the Michigan Forensic Interviewing Protocol. I could see how that behavior was impacting the child’s responses, but that was not for me to comment on; it was for the jury to draw conclusions about. At first it seemed like I was being asked to comment on one half of a conversation, but once I conceptually understood where the judge was coming from it made perfect sense.

As of the end of the day Friday, the jury was still out. Had they not been presented with two sides of the case, it seems to me that would have been back with a guilty verdict very quickly.

In my experience most attorneys don’t get this stuff and this defense lawyer was admittedly one of them. Without an expert she would have not known how to analyze and question the value of the forensic interviews in this case and present another view of that evidence producing process to the jury. Consequently, she could not have made an effective case. And the mistakes in this case were significant, but rather subtle. I’ve much worse work on the part of interviewers providing evidence in courts in other jurisdictions that did not adhere as strictly to the Protocol, and some of the people doing this work were not even licensed.

Whatever the outcome of the case, it seemed to me that the process was fair. Had the state not provided the funds for defense it would not have been. Some attorneys may feel that it is not the place of non-lawyers to comment on the fairness of the legal process, but I do know something about what constitutes good evidence in these cases; it is something that affects all of us; and all citizens have the right and perhaps the responsibility to seek a more just society.

One attitude I find particularly dangerous, and which may underlie the reason the state is fighting providing resources to indigents, is the assumption that every defendant is guilty and that they wouldn’t have been charged if they were not. My friend Matt Zick says that in a sex abuse case you are presumed guilty until proven innocent beyond all doubt. Regardless of what the law says, it is certainly the case that psychologically he is right; people are inclined to presume guilt in these cases because of their heinous nature and the difficulty of obtaining clean evidence.

An allegation can be satisfactorily proven, but seemingly never entirely refuted. And they can be made repeatedly without consequence to the accuser if there is no substance to them. But there are a lot of reasons why someone may be accused who has not committed a crime and evidence for that can often be found in the forensic interviewing DVDs if we know what to look for. Revenge, coaching, and false positives from overly aggressive investigation are all mentioned in the Protocol, and they are real.

Interviews should be child-centered, and hypothesis testing rather than hypothesis confirming. It is no more just to bully a child into making an allegation than it is to coerce him or her not to tell. And there is no way I will ever believe that a true victim of sexual abuse cannot not remember and relate in a consistent and credible narrative (however brief) important details surrounding the event(s). But the research does show that children can be made to believe that things have happened which have not and we need to be careful about instilling false beliefs. Repeated or leading questions can produce very harmful results.

Moreover, if the guilty don’t get due process, neither do the innocent. And while anyone may commit a crime, atrocities are never committed in the name of evil; they are always justified by the most noble and sacred causes. The list of historical examples is endless, which is I’m sure the reason for the proverb that the road to hell is paved with good intentions. It is also the reason Louis Brandeis warned us to be most on guard to protect our liberties when the government’s purposes seemed beneficent. Fanaticism of any kind is dangerous. Putting innocent people in prison does not protect society; it makes it more dangerous and victimizes the people it purports to protect.

The truth is the truth, and only a truly fair and just legal system can provide it. That means sufficient financial resources to present both sides of a case. If we don’t make these resources available to all of our citizens we cannot truly call ourselves a “government of the people, by the people and for the people,” “with liberty and justice for all.”

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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; (313) 802-0863, fax/phone (734) 692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.