Essential viewing on prosecutorial misconduct

  • Subtitle: Law Library
Written by  Posted Date: January 16, 2012
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_damian-j-penny.jpgProof that you really can find anything on YouTube: some kind soul has posted Exposing Satan’s Underground, Geraldo Rivera’s infamous 1987 NBC special about the Satanism epidemic we all thought was sweeping America.

Among Rivera’s interview subjects: parents of young children who insisted that their daycare centre was a cover for a sexually abusive satanic cult — one of many such cases from the period, in which it later turned out that the “satanic ritual abuse” was concocted by overzealous prosecutors and social workers.

The McMartin preschool fiasco in California, and similar travesties of justice in at the Fells Acres Daycare in Malden, Mass., and another in Martensville, Sask., should have taught prosecutors and child-welfare officials important lessons about succumbing to hysteria in dealing with the unspeakable crime of child sexual abuse. In the Detroit suburb of West Bloomfield, as illustrated on a recent episode of ABC’s 20/20, these lessons were not learned.

There was no satanic boogeyman this time. Instead, an innocent man spent months in jail, and his family was torn apart, because of a form of quackery called “facilitated communication.”

For years, Julian Wendrow searched for a way to communicate with his severely autistic daughter, Aislinn, and thought he’d struck gold with facilitated communication. FC involves a “facilitator,” who guides the hand of a person otherwise unable to communicate over a computer keyboard, spelling out what she means to say.

If this sounds a bit familiar, you might be thinking about a news story from 2009, about a comatose Belgian man who had allegedly been conscious, trapped in his own body, for decades. This shocking story fell apart when it was determined that he was “communicating” through FC, a procedure supported by little empirical evidence.

The Wendrow case turned out to be much more disturbing. At first, though, the results of FC seemed astounding. Aislinn graduated from high school, supposedly aspired to become a college professor, and even expressed her opinions about the George W. Bush administration. But then, through her facilitator, Aislinn accused her father of sexually abusing her — and her mother of allowing it to happen. Then everything went to hell.

Wendrow was arrested and held without bail, and an absolutely shocking example of prosecutorial misconduct was just beginning. Police, prosecutors, and child-welfare officials never once questioned the efficacy of facilitated communication, and suggestions that another facilitator be used, to see whether Aislinn’s allegations would be replicated, were ignored.

Even Aislinn’s younger brother, then aged 13, was dragged into the West Bloomfield police station for an excruciating interrogation, by an officer who lied about additional evidence of sexual abuse coming forward — and, ironically, accused the young boy of being a poor liar. Aislinn and her brother were then shoved into foster care, allowed absolutely no contact with their parents.

The only state official who showed any skepticism about FC was the judge. When the matter finally came to trial, Aislinn’s facilitator was asked to leave the room while simple questions were asked of the alleged victim. (This came after the prosecutor attempted to have the facilitator wear “noise-cancelling” headphones while the questions were posed to Aislinn — headphones which, it turned out, would have made it easier for the facilitator to hear the questions!)  Upon her return, she “facilitated” complete gibberish in response.

The charges were dropped, and the Wendrows are back together, and pursuing legal action against the authorities. The West Bloomfield Police were quick to settle, but prosecutor David Gorcyca remains unrepentant. In a 2009 interview with The National Law Journal, he said he would issue an apology to Wendrow “over my dead body.”

Every first-year law student learns that the prosecutor’s job is not to “win” cases but to ensure that the truth comes out, even if — especially if — there isn’t sufficient evidence for conviction. If only it were so. Most Crown attorneys I’ve worked with have been nothing less than professional, but I’ve come up against a few who want to win at all costs, because the accused is certainly guilty of something.

As writers like Radley Balko have shown, every month brings dozens of cases in which American prosecutors behave in a shockingly unethical fashion — even refusing to disclose exculpatory evidence — for the sake of their win-loss records. (Nancy Grace, repeatedly chided by appeal courts for her conduct as a prosecutor, was punished with her own TV show.)  Gorcyca, and the police officers and social workers he worked with, is one of the worst examples.

The 20/20 report on the Wendrow travesty is available at the ABC web site. (The video for the entire episode may not play outside of the United States, but several clips are available even to us Canadians.) For any lawyer whose caseload includes criminal and child-protection cases, it is essential viewing.

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0 # RE: Essential viewing on prosecutorial misconductCCCc 2012-01-20 16:00
Why do so many legal eagles in Canada write articles on issues that are night and day in Canada based on the difference in evidence and hearsay and past evidence?
All this needless writing on US cases deflect away from the bigger problems never being fixed in Ontario or Canada in general. Despite the numerous reports. Fix what is broken. Family law. Decide there is an oath lawyers take to say milk things. i just found from a Supreme Court case i was lied to my a judge and a lawyer and I won my case.
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Damian J. Penny

Damian J. Penny, a native of Mt. Pearl, Nfld., is a family law practitioner with Bedford Law in Bedford, N.S. His blog can be found at www.damianpenny.com and his Twitter feed at www.twitter.com/damianpenny. He  can be reached at damian@bedfordlaw.com.



Column: Law Library

Website: www.damianpenny.com

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