From The Morning Call

End of witness accountability will have a price

Paul Carpenter

November 11, 2003

As George Mason, James Madison and their pals were crafting the Bill of Rights, they saw the McMartin case coming from two centuries away.

With witch trials fresh in their minds and the Inquisition still in effect, they knew a free society could not exist if prosecutorial zeal is unchecked; unscrupulous authorities can get witnesses, especially children, to say anything.

Therefore, they wrote in the Bill of Rights, ''In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.'' The Bill of Rights does not say the lawyer for the accused has the right to face prosecution witnesses; it says the accused has that essential right.

In the McMartin case in California, and in similar cases across the nation, hundreds of innocent lives were affected by a single preposterous dogma that said children never lie in court when it comes to accusations against adults.

The top interrogator in the McMartin case was Kee McFarlane, who, court documents later revealed, was stymied by some children at the day care center who insisted they never saw the lurid sexual activities that McFarlane insisted took place. ''You must be dumb!'' McFarlane would yell at the children until they agreed to testify the way she wanted.

This was part of a modern tide of witch trials that ebbed only partially after the medical establishment finally persuaded courts that children indeed lie, that they can lie in concert, that they can be easily manipulated to create and cling to false memories and that there should be professional standards and limits for interrogating children.

Bit by bit, however, the Bill of Rights is being eroded by people who want to shift power away from individuals and into the hands of government.

But in Pennsylvania, the Bill of Rights was augmented by the state Constitution, which was more explicit regarding the right of criminal defendants ''to meet the witnesses face to face.'' The only way to quash that right was to amend the Constitution, so last week's elections offered two amendments on the ballot to eliminate the face to face requirement.

Voters nearly always fall for measures to subvert the Bill of Rights or other constitutional precepts if the measures are presented as noble ideals. So it was a foregone conclusion that proposals to weaken the state's confrontation requirement would pass.

Nevertheless, it was the event that troubled me most during my two-week vacation.

In a free society, there must be a price to pay for those who accuse others. They must be accountable, no matter how uncomfortable that may be.

U.S. Supreme Court Justice Antonin Scalia is not generally regarded as a bleeding-heart liberal on criminal issues. In Coy v. Iowa (1988), however, he wrote the court's majority opinion, upholding the requirement for all witnesses to testify in front of the accused.

''The state can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses,'' Scalia's ruling said. ''That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.''

When Pennsylvania voters voted to deny witness confrontation rights to others, they probably felt there never will be a cost to themselves; there never will be a Kee McFarlane coming after them. That's the way it always is with rights; they are less attractive when they benefit only strangers.

But if we let witnesses avoid accountability in criminal proceedings, we all will pay a high price, eventually.

paul.carpenter@mcall.com

610-820-6176

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