Presumed innocent until proven broke (part II)

By Michael G. Brock

A daily email from Lawyer’s Weekly dated July 1, 2013 contained the following headline from the Michigan.gov website: “Snyder signs sweeping reforms to Michigan’s indigent defense system.” The article states that, “Gov. Rick Snyder today signed legislation to bring sweeping reforms and improvements to indigent defense in Michigan, helping protect every citizen’s right to competent legal representation in criminal defense cases.” The article goes on to say that the law will “set statewide standards and accountability measures for public defense attorneys representing indigent criminal defendants...Every citizen has a right to competent counsel...For too long many indigent defendants have not received the level of representation that they deserve...Today, we’re taking action to fix that problem...upholding our Constitutional responsibility to the accused and their families and ensuring justice and public safety as well as accountability to taxpayers.”

This is all well and good.  It is nice to think that there will be a fairer and more just application of the principles of due process as a result of this legislation in the future than there has been in the past...but I’m not holding my breath. For one thing, the article makes no mention of evidence.  Although surely this is something that will be discussed and, to some extent, covered by the new legislation, it is already the case that the State provides funds for both lawyers and experts, but a significant increase in availability of experts who are willing to work for reduced fees both if and when the State gets around to paying the bill is unlikely.  Without better quality scientific evidence it is improbable that we will see a marked increase in the quality of legal defense.

It is no secret that it is difficult to make a living defending indigent clients, and that those who do so are overworked, underpaid, and often wind up making deals they might not recommend to their defendant clients if they had the virtually unlimited resources of the prosecution, or even the somewhat less but still substantial resources of the well-healed.  Though prosecutors may not make what high profile defense lawyers command, the advantage of the prosecution lawyers being on salary is that they are free of concerns that clients with limited resources may have trouble reimbursing them for the time they have invested in a case. 

Defense attorneys also have to factor in the costs of experts, which the prosecution does not.  Prosecution experts are typically State employees, such as police, social workers, forensic interviewers and other scientific experts who are already on the payroll, or for whom the State will undoubtedly provide expenses.  They also have a psychological advantage over the defense in that their experts are presumed to be more objective those of the defense because they are government employees and, presumably, on the side of truth and justice, while defense experts are presumed to be working for a paycheck.

Ironically, in my experience, scientists who work for the prosecution are more committed to being part of the team. Defense experts, on the other hand, feel quite comfortable telling a lawyer that they are not going to be helpful to his or her case if they are called to the stand. 

Police and prosecutors tend to see their primary job as putting criminals in jail and only secondarily protecting law abiding citizens. They don’t make points for not arresting or prosecuting good guys. If you question this, when was the last time you heard a prosecutor brag about letting an innocent person go free? If they are running for office, it’s more likely they are pointing to their conviction percentage.1 This is particularly important and/or misleading because the prosecution has the power to decide which cases to bring to trial. The unsophisticated layman serving on jury is inclined to think that where there is smoke there must be fire.  If there were no case, they reason, it is unlikely that the State would file charges. He or she is not going to consider what, if any, role the prevailing political climate has had in influencing the decision to prosecute. 

Of particular concern are sex abuse cases where there is no physical evidence. Considering the amount of media attention given to the subject of true allegations, and the blackout regarding false allegations, the presumption, despite the form written instructions the judge reads to the jurors out of a book, is that the defendant is guilty until proven innocent beyond all doubt.  Whatever the letter of the law says, that is the psychological reality.

The best evidence in these cases is generally in the form of DVD recordings of forensic interviews.  Good defense attorneys know that this is where the case is won or lost. Going over these recordings is a time consuming and arduous process. Just determining what was said requires playing and replaying the tapes beyond the patience of anyone not extremely detail oriented and fully committed to aiding the cause of justice. Even forensic psychologists who do a lot of these cases have told me that they require a transcript before they will go to work. I tell them that in my experience a transcript cannot always be relied upon. A non-defense expert may not be motivated to watch/listen to a tape 15 times to hear something that might disprove the case.

An important example of the lack of concern prosecutors have about protecting the rights of the accused and keeping innocent people out of jail is the kind of evidence they are willing to present at trial.  In reviewing records for a recent case I read the report of a pediatrician who was presented as a prosecution witness.  She had asked a child suspected of being abused, “Did anyone touch you in a way that you are not supposed to be touched and then tell you not to talk about it?”  In this way she melded two leading questions of a child in one sentence in a supposedly forensic interview.

In another case for which I served as a consultant, the court refused the defense request for an expert financed by the court. The expert then hired by the defense, though a licensed and experienced mental health professional, was not allowed to testify because he was not deemed by the court to have sufficient recent experience.  What was allowed, however, was “forensic” evidence provided by unlicensed interns at a university school of social work. I read these forensic interviews, and in one of them the child denied any abuse in a lengthy interview.  However, she was deemed to have “disclosed” when she “remembered” the abuse and was allowed to go back on record after a brief private conversation with her grandmother, who was seeking custody of the child. 
Such off the record consultations are clearly forbidden by Protocol and taint the evidence, or worse, create false evidence.  However, the court determined that the testimony of the child in court was all that mattered, thus throwing out the forensic research that underlies all forensic interviewing protocol by showing that the manner in which the evidence is obtained is the best indicator of whether or not it is reliable. It only took a preponderance of this kind of evidence to terminate this father’s parental rights and convince his daughter that he had molested her.

Typically, defense witnesses are not allowed to give an opinion regarding the credibility of a child’s testimony.  But the whole purpose of forensic interviewing is to determine whether or not the child’s testimony was obtained in a legally defensible manner.

Explaining this to a jury can be a challenge.  If the child says something happened, the jury is likely to take their word for it, and the only real proof of that is the forensic interview. The earliest of these interviews is, according to the forensic literature, the most valid. But I’ve also heard the prosecution downplay the importance of the quality of the forensic interview. How can this argument be justified in the interests of justice? 

It is also significant that there are few prosecutions against people who are determined to have made false allegations of abuse.  Given that there are rarely criminal penalties for making false allegations, and that it is impossible to prove the alleged abuse didn’t happen, the same case may be brought repeatedly against a defendant until finally it sticks.  In a strictly legal sense this may not violate the principle of double jeopardy, but in point of fact, it results in multiple trials for the same person in the same case until there is inevitably a conviction.

This article was originally written in July 2013, but I held off publishing at that time because a case in which I had recently served as an expert witness (People v. William Waters) had resulted in a hung jury and was scheduled to go back to trial. I did not want to comment on the case or this topic while the retrial was pending out of concern that it might alienate the judge or otherwise negatively impact the client’s ability to obtain a fair trial, although I was not an expert witness at the second trial. The defense attorney had someone lined up with more credentials and thought she would be afforded more latitude regarding her expert’s opinion of the child’s (and the child’s brother’s) credibility.  I told defense counsel that I doubted this would be the case. 

The prosecutor’s office filed motions trying to keep either myself or the other expert from testifying in the case; pointing out that Michigan case law forbids the rendering of an expert opinion about the child’s credibility or the question of the guilt or innocence of the defendant.2,3 Moreover, the judge had made it clear at the first trial that expert testimony could only focus on the validity of the interviewing process and the manner in which the forensic evidence was obtained. It seemed unlikely that she was going to change her position on that regardless of the expert’s credentials. This turned out to be the case, and Mr. Watters was convicted at the second trial.

The turning point in the case came during the first forensic interview between the child and a police officer. The child had been brought in to the police station by her mother. The original story was that the eight-year-old’s older brother had witnessed Mr. Watters putting his penis in the child’s mouth, but the child was asleep and did not wake up. She was unaware that anything had happened. Significantly, early in the forensic interview the child had described police officers as people who “bring you down,” expressing a predisposition to fear the authority figure. 

Initially, the police officer tried to follow the Protocol and to see if the child would provide a voluntary narrative that would confirm the allegation. When he was unable to obtain a narrative using proper forensic techniques, the police officer began to ask closed-ended, yes or no questions of the child:

“Did you see anything?”

“No.”

Did you feel anything?”

“No.”

“Did you hear anything?”

“No.”

“Did he say anything to you, ever?”

“No.”

At this point the police officer made a significant departure from Forensic Interviewing Protocol by asking the child a leading question which presumed that a disclosure of abuse had already been made. The next question was:

“How many times did this happen?”

This is not merely misuse of Protocol, it is throwing out the Protocol and sending a clear message to the child that the interviewer was not willing to accept no for an answer and that the she was going to tell him what he wanted to hear.4  The child responded that there were many occasions when the abuse occurred, though she was unable to provide a clear narrative of events, and her story changed frequently. But the allegations had been obtained, seemingly from the child’s lips, and the result was a foregone conclusion. The child’s brother reported that he witnessed some of these events.  He told interviewers that he had been aware of the abuse for a year and a half, but did nothing about it until his mother decided she was going to leave Waters.

Police and prosecutors are trained in Protocol, but the problem is that they see it as a tool to build their case, not as a means of seeking the truth. And they know these are easy cases to win; the presumption of guilt is very high and difficult for the defense to overcome. The prosecution even stated in one of their two motions to preclude any expert testimony in the Waters case that no scientific opinion should be necessary because, “The Forensic Interviewing Protocol can be admitted into evidence so that a common layperson can read it and understand how an interview is supposed to be conducted.”5  This was after having argued that my testimony should be precluded because of my lack of training specifically in the application of Michigan Protocol.6

As the direct result of poor quality forensic evidence in this case a man is going to prison for a long time, with years on the sex offender registry to follow if he ever gets out.  It stands to reason that many of those convicted in these cases are innocent, and that only a commitment to truth that is far beyond what we now have could possibly result in justice for the majority of those accused.
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1 Charley Rose recently joked with a federal prosecutor that anyone can convict a guilty person; it takes a really good prosecutor to convict someone who’s innocent.  The intent was humorous, but it clearly reflects a mindset.
2 People v. Peterson, 450 Mich, 349 (1995)
3 People v. Miller, 165 Mich App. 32 (1987)
4 Michigan Forensic Interviewing Protocol, Third Edition (2011), P. 36 “Explicitly leading questions suggest the desired answer or contain information that the child has not yet volunteered. Even yes-no questions are considered leading by many psychologists, particularly if the child is young or the interviewer does not reiterate the child’s right to say ‘No.’ Leading questions should be avoided during forensic interviews.”
Examples of leading questions:
• “You told your mom you were scared of him, didn’t you?”
• “What was he wearing when he laid next to you?” (when the child did not mention that the male in question laid down).”
5 Do Jurors “Know” What Isn’t So About Child Witnesses? Jodi A. Quas, William C. Thompson, and K. Alison Clarke-Stewart: “...the study revealed considerable variability in individuals’ knowledge about children’s eyewitness abilities and reactions to abuse and indicated that individuals possess both accurate and inaccurate beliefs. A critical and much needed role for experts is to reduce this variability and correct the misperceptions of a majority (or a large minority) of jurors. Indeed, Ceci and Friedman (2000) highlighted that, as long as a sizable minority of jurors hold incorrect beliefs, expert testimony is important in juror education. Our findings reveal that, even when a majority of individuals held correct beliefs, a large minority did not. Of importance, however, experts need to go beyond simply stating that children can be misled to make false claims of abuse and explain the conditions under which children are more (and less) likely to err. This point was made by Lyon (2002) who noted that experts’ testimony may be useful in providing insight into specific research findings concerning the reliability of children’s testimony that are not well understood by laypersons. Overall then, the knowledge provided by experts could reduce both unwarranted skepticism and naive trust in children’s claims of sexual abuse.” Law and Human Behavior, Vol. 29, No. 4, August 2005,  P. 452
6 Michigan Law requires that Protocol be followed by State employees, but not by private practitioners.  However, I did attend a seminar by Katherine Kuehnle that explored the dynamics of forensic interviewing and protocols.  There are several in existence, the central component of which is the child’s free narrative.  This is also very evident in the body of forensic literature which supports these protocols and which I have researched.
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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.