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HAS THE LAW BECOME AN INCONVENIENT TRUTH?
“And last, the rending pain of re-enactment
Of all that you have done, and been; the shame
Of motives late revealed, and the awareness
Of things ill done and done to others' harm
Which once you took for exercise of virtue.
Then fools' approval stings, and honor stains…”
On June 18, 2011 the Detroit Free Press ran an article by Brian Dickerson titled, “How Judicial Cowardice Prolonged a Travesty.” The piece dealt with the 2007-2008 investigation and prosecution of sexual abuse, allegedly committed by Julian and Thal Wendrow, which resulted in the parents being jailed, the family being torn apart, and the 13-year-old son being subjected to an interrogation of “shocking cruelty,” part of which is available on the Internet. Dickerson accuses the judges who handled this case of cowardice and cronyism and alleges that they were as much to blame as their friends in the prosecutor’s office for this miscarriage of justices.
This seems true enough, and it is a pity that the judiciary is able to hide behind governmental immunity to protect them from a lawsuit for what appears to be a willful perversion of the justice they had sworn to uphold. But there is something far more sinister than either cowardice or cronyism at work in this case and in the justice system as a whole, and which is cause for alarm for anyone who hopes for a fair outcome from a political and legal system that purports itself to be the best in the world.
Dickerson notes that the evidence used to prosecute the Wendrows was known to be invalid beforehand: “[B]y January 2008, when Bloomfield Hills District Judge Marc Barron convened a hearing to determine whether the Wendrows' daughter could have been the source of the terrible allegations against her parents, courts across the country had long since concluded that [facilitated communication] was a sham.” Not only were the prosecutor and the court slow to recognize that there was no case; they were prosecuting a case with what they either knew or should have known was evidence that had no forensic validity.
Dickerson goes on to say that an experiment was conducted in which the “facilitator” was unable to duplicate “communication” when out of earshot of the question, but that the Court allowed the State (purporting to represent the people of Michigan) to continue prosecuting its non-case and hold Julian Wendrow in jail for at total of 80 days before finally deciding to drop all charges.
In 1994 the American Psychological Association adopted the following resolution: “Facilitated communication (FC) has been widely adopted throughout North America in special/vocational education services for individuals with developmental disabilities who are nonverbal. A basic premise of facilitated communication is that people with autism and moderate and profound mental retardation have "undisclosed literacy" consistent with normal intellectual functioning. Peer reviewed, scientifically based studies have found that the typed language output (represented through computers, letter boards, etc.) attributed to the clients was directed or systematically determined by the paraprofessional/professional therapists who provided facilitated assistance (Bligh & Kupperman, 1993; Cabay, in press; Crews et al., in press; Eberlin, McConnachie, Ibel, & Volpe, 1993; Hudson, Melita, & Arnold, 1993; Klewe, 1993; Moore, Donovan, & Hudson, 1993; Moore, Donovan, Hudson, Dykstra, & Lawrence, 1993; Regal, Rooney, & Wandas, in press; Shane & Kearns, in press; Siegel, in press; Simon, Toll, & Whitehair, in press; Szempruch & Jacobson, 1993; Vasquez, in press; Wheeler, Jacobson, Paglieri, & Schwartz, 1993). Furthermore, it has not been scientifically demonstrated that the therapists are aware of their controlling influence.”
Subsequent to their ordeal, the Wendrows filed suit against those responsible for they’re groundless prosecution. L.L. Brasier, in a Free Press article (June 17, 2011) wrote, “[Oakland] County corporate counsel Judith Cunningham wrote [the Free Press] that the County obtained a dismissal of 19 of 22 counts in the complaint. She also said in the letter ‘that the prosecutors were trying to protect the interests of a young girl who claimed that she had been abused. She communicated that abuse by a means [facilitated communication] that was previously fully endorsed by her parents.’"
Through this letter, the defendants in this lawsuit are stating that the child made an allegation; which they know is not true. The child never made any allegations. More importantly, they claim they are not responsible for using bad evidence if the person or persons they are investigating or prosecuting are ignorant of what constitutes valid forensics. If, prior to any suspicion that the technique they are agreeing to would be used as evidence in a criminal prosecution against them, and desperate for some way to communicate with their special needs child, they agree to a process that has no scientific validity, they are fair game.
Dickerson makes a valid point in citing cowardice and cronyism. However, I would choose a different emphasis; it’s not just about judicial misbehavior prolonging a travesty; it’s about letting it get off the ground. This case, and many like it, should never have been prosecuted in the first place. Having been prosecuted, it should have been tossed in pretrial when the presiding judge realized that the case was based on bogus evidence. Unfortunately, we live in a time when the notion of due process protections has fallen out of favor, and this is but one of the most glaring and public examples of a problem that is endemic to our legal system at this time in American history.
Recently a case came to me regarding a groundless allegation of abuse; an allegation which had been rejected by several valid forensic investigations (DHS workers and police department), and had been taken to a treatment therapist who agreed to treat the alleged victims on the basis that their mother said they had been abused. (Treatment is contraindicated for a condition that has not been shown to exist, but the real purpose was, of course, forensic investigation.) The therapist subsequently “discovered” that the children had been abused and wrote a one-page letter to the court requesting that the children not have contact with their father. The court complied with the request, and also denied the accused parent access to the treatment records which would show how the evidence was obtained.
In so doing the court, in essence, validated a secret trial conducted by the “children’s” therapist and completely devoid of due process protections. It also admitted evidence that was obtained through an unethical process (the mixing of dual and conflicting roles by a mental health professional), and ignored Michigan’s Protocol for Interviewing Children Suspected of Being Abused, whose procedures are mandated by the Child Protection Law (MCL 722.628(4)(6)). The Protocol’s admonition on page 1 of the introduction states that, “Although information obtained from an investigative interview might be useful for making treatment decisions, the interview is not part of a treatment process. Forensic interviews should not be conducted by professionals who have an ongoing or a planned therapeutic relationship with the child.”
Indeed, if therapy were a valid forensic tool, there would be no need to convene a State of Michigan Governor’s Task Force on Child Abuse and Neglect and produce a Protocol for investigative interview of children; a Protocol that was authored by some of the best legal and forensic minds in the state and has been law for in Michigan since 1998.
A judge once told me that a prosecutor had more power than he did because the prosecutor could decide which laws to prosecute and which laws to ignore. But we are supposed to be ruled by a “government of laws and not of men,” and if a judge has the discretion whether to implement the law by insuring the evidence he admits has forensic validity, or to ignore the law and deliberately admit scientifically invalid evidence because it suits his purpose or preconceived disposition—if the law itself has become an “inconvenient truth”—what hope is there that any of us will receive justice in the courts?
|False Child Abuse Allegations
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