Thursday, May 21, 2009
Accusers as "Victims": A Case Study
The Reign of the Accuser, Salem 1692: Mary Warren, one of six young female "victims" whose allegations propelled the Salem Witch Trials, points the lethal finger of accusation at a village resident. Even a brief acquaintance with contemporary child abuse prosecutions is enough to disabuse one of the notion that the mass derangement at Salem was unique: It is recreated somewhere in the United States every day.
One witness shall not rise up against a man for any iniquity .... [A]t the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established. --
(The first in an occasional series.)
It would hardly be difficult to convict any man of child sex abuse if the prosecutor were provided with the following advantages:
*The accuser would be designated a "victim," and referred to as such in pre-trial hearings and during the trial, thereby leaving jurors predisposed to accept her allegations as fact;
*The trial judge grants a prosecution motion in limine (a request to exclude "prejudicial" evidence) forbidding the defense to call witnesses whose first-hand testimony would impeach the credibility of the accuser;
*In similar fashion, the judge prevents the defense from "prejudicing" the jury against the "victim" by referring to at least one previous occasion on which she made a false allegation of abuse;
*The accuser/"victim" is permitted to change critical, materially relevant details of her story without being accused of perjury or simply impeached as unreliable;
*Even as the judge carefully shields the "victim" from adversarial scrutiny, he permits the prosecution to mention that the defendant had previously been the subject of an abuse investigation, without being charged, prosecuted, or convicted of any offense;
*Most egregiously, the judge permits the prosecution to present an "expert" witness to explain how the critical piece of exculpatory evidence in a child rape trial -- a gynecological examination of the accuser showing perfectly normal physical development, including an intact hymen -- was actually a common finding in child sexual abuse cases.
Indeed, just as the notorious "magic bullet" of Daley Plaza managed to defy established laws of physics, changing directions several times without losing its lethal velocity, the accuser's virginal membrane possessed magical properties that permitted it to survive repeated episodes of full intercourse forced upon the girl by her step-father, which supposedly began when the accuser was 12 and the accused was in his late 20s.
It is possible, albeit monumentally improbable, that a young girl could endure multiple sexual violations, including incestuous intercourse, without enduring physical trauma of the sort revealed in a detailed gynecological examination.
In the absence of corroborating evidence, however -- such as eyewitness testimony, photographs, video, or perhaps an item of intimate apparel infused, Clinton-style, with DNA from the accused -- a normal examination should be enough to shut down a prosecution cold. All that would be left is the word of the accuser, which -- under the tenets of Western law as old as Moses -- is not enough to secure a conviction.
Yet it's likely that every week, if not every day, people (usually men, although women are hardly immune) are convicted of sex crimes and sent to prison following "trials" that follow the template described above.
The word of a single accuser is considered the self-ratifying testimony of the "victim"; exculpatory physical evidence is suppressed or explained away; the defense is forbidden to impeach the credibility of the accuser, while the prosecution is free from any similar restrictions in assailing the character of the accused; and a presumption of guilt informs the entire proceeding.
Often such trials partake of "magical thinking" of the sort that led credulous officials in 17th Century Salem to accept "spectral evidence" -- dreams and visions in which the disembodied spirits of the accused supposedly committed vile acts while their physical bodies were in another location -- as a valid rebuttal to an otherwise unassailable alibi.
Once those convicted in such "trials" serve their sentences, most of them -- including at least some people who are victims of grotesque injustice -- can be designated "sexually dangerous persons" who will never fully regain their freedom. In fact, a law enacted in 2006 permits the open-ended "civil confinement" of paroled sex offenders within the federal prison system. This amounts to a potential life sentence inflicted on the basis of crimes yet to be committed, since "civil confinement" only begins after the detainee has served the prescribed sentence for the crimes of which he was convicted.
Some innocent people caught in the coils of this system find themselves in a uniquely painful predicament: To obtain parole and a chance to rebuild their lives, they must allocute to the offense for which they were convicted.
In some cases, this confession is coupled with a polygraph examination, which puts genuinely innocent people in an inescapable double-bind: If they assert their innocence, they will be denied parole; if they falsely confess to the charges, they'll most likely fail the polygraph examination, with the same result.
Happier times: David Dutt with his son before being unjustly convicted of sexual misconduct with a child. He is currently serving a 30-year prison term.
Boise resident David Shawn Dutt has lived every element of that nightmare since being accused in 2001 -- along with his then-wife Terry -- of sexually abusing his ex wife Terry's daughter, S., for more than two years, beginning in 1999.
At the time the abuse supposedly began, S. -- Terry's child from a previous marriage -- was 12 years old. David was charged with three counts of lewd and lascivious behavior with a minor, including full-fledged intercourse. Terry was arrested on charges of sexual battery, sexual solicitation of a minor, and failing to report abuse (the first charge was dropped before trial).
The prosecution presented the same evidence against David and Terry. David was convicted on all counts; Terry was acquitted. That disparity of outcome is sufficient -- but hardly the only -- reason to entertain misgivings about the soundness of the verdict, since the prosecution was permitted to full use of the tactics discussed above.
No diary or journal entries by S. describing abuse were entered into evidence. And S.'s testimony during the trial differed in numerous small but significant ways from the story she had previously told to the police and social workers.
Most importantly, a detailed medical examination carried out when S. was 14 and a half years old, and had supposedly endured several years of sexual molestation -- including numerous episodes of full intercourse -- found no anatomical evidence of abuse of any kind.
That examination (described in an official report to which I have been given access) revealed that S.'s private anatomy was normal, the hymeneal membrane fully intact.
All of this adds up to a very compelling case for reasonable doubt -- unless, of course, one is possessed of the sort of mind-set that considers "spectral evidence" to be credible. Regrettably, the Ada County Prosecutor's office has just such a person in its employ: Deputy Prosecutor Jean Fisher, who has been handling sex crime cases for that office since 1989.
The entire case against David rested on the "disclosures" -- that is, allegations -- made by the "victim" -- which is to say, the accuser. And Fisher's opening statement was built around a trope quite common in child abuse prosecutions: The jury must honor the "courage" of the "victim" by believing her testimony.
"[I]t takes a very brave child to come forward in a case such as this to escape specific ... fears," such as the "fear of not being believed," insisted Fisher in her address to the jury. "But she's a brave girl and she's here to tell you what has happened to her. And, Ladies and Gentlemen, when you hear the descriptions, when you hear what comes out of her mouth as she describes these acts you will have no doubt in your mind that this defendant systematically sexually abused her over and over and over again...."
Of course, in the Anglo-Saxon system of justice, the precise duty of the jury is to doubt the word of an accuser until that burden of doubt is overcome by a suitable preponderance of evidence. That duty is the same even when the accuser is a winsome, sympathetic young girl claiming to be the victim of unspeakably vile acts.
In her opening statement, Fisher obliquely admitted, in an elliptical and artfully dishonest fashion, that there was no evidence S. had been involved in any sexual activity, whether consensual or abusive: "[Y]ou'll hear about ... the medical condition which involves the her, the estrogenization of the hymen and those sorts of things, and Miss Henbest will be able to explain for you the process of -- of how that works, and that there aren't physical findings in a case such as this."
"Miss Henbest" was the prosecution's star "expert witness," Margaret Henbest -- a nurse practitioner, not an M.D., and a former member of the Idaho Legislature. She was the medical professional who conducted the medical examination of S. immediately following the youngster's first abuse allegation.
It was Ms. Henbest -- not S. -- whom the prosecution chose as its lead witness, and in cross-examination she admitted that there was no evidence that abuse had occurred.
The admission is recorded on page 459 of the trial transcript, lines 3-7, in an exchange between Henbest and defense counsel Dennis Weigt:
Q. The hymen was actually normal genitalia and didn't -- your physical examination didn't reveal any indication of sexual abuse; isn't that correct?
A. That's correct.
At this point, Mr. Weigt should have asked the witness to be excused and made a motion for a summary judgment: The prosecution's star witness had just admitted that there was no evidence to corroborate the accuser's story. Whether or not that motion had been granted, it would have impressed upon the minds of the jury the utter poverty of the prosecution's case.
In fact, Weigt should have made that motion immediately following Fisher's opening statement to the jury, in which she outlined a prosecution case that fell far short of meeting its burden of proof. At the very least, he should have focused with laser-like coherence on the fact that even before any evidence had been presented to the jury, Ms. Fisher was admitting that there was no physical evidence of abuse.
Instead of attacking the prosecution at its most vulnerable point, Weigt offered a diffuse and rambling summation of the defense's theory of the case, which was that S. was "a very mature, very knowledgeable girl" who was angry and frustrated over domestic responsibilities she was given at home, and desirous of living with her maternal grandmother. From this perspective, the abuse accusations were the product of adolescent spite, and the detailed descriptions offered by S. reflected what she had synthesized from vulgar entertainment, material presented at school, and what she had learned in candid discussions of sexuality with her parents.
Weigt did make one telling point in his opening presentation. David Dutt had a flawless alibi on the only specific date offered by S. on which sexual intercourse supposedly occurred: He was in the hospital with his wife while their son was delivered by an emergency c-section; S., on the other hand, went home with her grandmother,where she stayed for the next several days.
Once that allegation was tested in court, however, S.'s specific recollection suddenly became very approximate, at least as far as the date was concerned.
The trial judge, Fourth District Judge Thomas Neville, again proved helpful to the prosecution by instructing the jury that "the State only has to prove on or about these time frames" in which the abuse allegedly occurred.
What this meant, in practical terms, was that the jury not only was to accept S.'s unsupported word that the abuse took place, but give her generous leeway regarding self-contradiction for the specific purpose of nullifying David Dutt's otherwise invincible alibi.
"She knows that she had intercourse with the defendant, David Dutt the night of [the son's] birth," Fisher insisted in her closing statement. "She believes in her heart it was the night [the son] was born. Now, if you think she's confused, that it maybe was the second night or the third night before [the son] came home, or that it's possible she could have been confused, but you are convinced beyond a reasonable doubt that it happened, it [the specific date] doesn't matter."
Oh, yes it does matter -- or it would in any trial held under legitimate rules of evidence. What Fisher was demanding of the jury -- with the support of Judge Neville -- was a standard of proof functionally indistinguishable from the Salem Witch Trial's notion of "spectral evidence." In Salem the prosecutors could dispense with an alibi by insisting that the accused could be two places at once; in the trial of David Dutt, the judge and prosecutor insisted that the accuser could alter critical details of her story in order to get around an alibi.
Jean Fisher's summation to the jury was an Oprah-magnitude onslaught of unalloyed sentimentalism, a blast of unfiltered bathos worthy of a Daytime Emmy.
"Today, S. is a victim," Fisher insisted. "The future will determine if she is a survivor.... After hearing from S., after seeing her pain, after seeing her presentation and how she suffered up here, can there be any doubt in your minds that she has been sexually abused repeatedly by her stepfather?"
The critical word omitted by Fisher is "reasonable" -- that is, the product of logic. "Reasonable doubt" results from a dispassionate examination of provable facts by jurors who understand that the word of an accuser is never sufficient evidence to convict the accused. That quality of intellect called "reason" dictates that accusations are never self-validating, and that this is true even when the accuser undergoes visible distress and "pain" as she makes unsupported accusations.
Perhaps the greatest scandal in this entire affair is that there wasn't a single juror with the intellectual ballast necessary to keep from being swept away by the gale-force blasts of emotion, and the leadership ability necessary to help others recognize the pervasive grounds for acquittal on the basis of reasonable doubt.
"You are a brave girl," gushed Neville to S. as he prepared to sentence David Dutt. "You're a courageous girl." Turning to Dutt, Neville upbraided him for having the temerity to deny S.'s accusations; the very act of doing so, Neville insisted, demonstrated that Dutt's capacity for rehabilitation was unacceptably low.
"You are in denial even after these verdicts," growled Neville at Dutt. "I believe that society does require protection from you. I believe that you are a clear and present and likely to be a future danger to society, and all of those factors militate toward a substantial prison sentence."
In addition to being required to register as a sex offender, Dutt was given a 20-year prison term: ten years fixed, and ten years contingent on his "rehabilitation," which -- as noted above -- requires that he confess to what remain, the verdict notwithstanding, unproven allegations and pass a lie detector test certifying that he believes himself to be guilty.
This relatively brief capsule summary of David Dutt's trial doesn't even begin to address the irregularities, implausibilities, and improprieties that are deployed in dense-pack in this case. It is presently on appeal to the state supreme court, and the persistence of both David and his father Dale in seeking to overturn the conviction has produced some interesting shockwaves within Idaho's criminal "justice" system -- something about which I'll have more to say in future installments.
An attorney and several other qualified observers of the Ada County justice system have informed me that Jean Fisher boasts a conviction rate north of ninety percent. If the prosecution of David Dutt is typical of her approach, and the latitude she is given by trial judges, that claim is entirely believable, and a compelling illustration of the fact that there is no justice to be found in our "justice" system.
On sale now.
Dum spiro, pugno!