by Richard Beck
Given the number of convictions overturned in the century’s final decade and the frequency with which judges and appeals courts attributed the wrongful convictions to clear instances of investigative and prosecutorial overreach, one might have expected more people to lose their jobs. Yet in Kern County, California, Ed Jagels remained at the head of the district attorney’s office until 2009, when he announced he would not pursue an eighth term. Until the very end, his office’s official web page noted with pride that under Jagels’s watch “Kern County has had the highest per capita prison commitment rate of any major California County.”17 In Massachusetts Martha Coakley served as Middlesex County district attorney until winning an election that promoted her to attorney general in 2006. She won reelection four years later. Debra Kanof, the prosecutor who won convictions against Michelle Noble and Gayle Dove—both of which were overturned—currently works as an assistant US attorney, and Robert Perez retired on disability (he did, however, face a number of civil suits filed by defendants in Wenatchee).
Perhaps no prosecutor, therapist, or detective enjoyed as brilliant a posthysteria career as Janet Reno. In 1993, four years after Ileana Fuster was deported to Honduras, President Bill Clinton nominated Reno as the first woman candidate for US attorney general. Reno was confirmed and then famously became the center of controversy after ordering FBI forces to launch an assault on a compound held by a fringe religious group in Waco, Texas. The attack started a fire that consumed the compound and killed dozens of people, including twenty-two children. Though it went largely unnoticed at the time, there is evidence that Reno’s experiences in Miami played a role in her decision to order the FBI attack. Reno was initially reluctant to send units into the compound—she wanted to give the hostage negotiators time to do their work. But then someone at the FBI—an official Justice Department investigation failed to determine who—relayed to Reno unsubstantiated allegations that children were being abused inside the compound. Reno then changed her mind about the wisdom of an assault because she thought “[the FBI] had learned that the Branch Davidians were beating babies.” After the attack a doctor named Bruce Perry examined the twenty-one children who survived and determined that they had mild to moderate socialization problems but no signs of physical or sexual abuse. Of Reno’s decision to order in the tear gas, he concluded, “The FBI maximized things they knew would ring a bell with her.”18
Jesse Friedman left prison in 2001 as a registered “Level 3” sex offender, a designation reserved for those convicted of committing the most serious crimes. His efforts to have his conviction overturned and his sex offender status removed continue to this day.19 Gerald Amirault was finally released in 2004, and in 2009 the Massachusetts Appeals Court threw out the conviction of Bernard Baran, whose consistent claims of innocence made him ineligible for parole for nearly a quarter-century. Baran died of an aneurysm in September 2014 at the age of forty-nine. He spent more years of his adult life in prison than out of it. In San Antonio, Anna Vasquez, one of four Hispanic lesbian women accused of aggravated sexual assault on a child in 1994, received parole in 2012. Elizabeth Ramirez, Cassandra Rivera, and Kristie Mayhugh followed in the fall of 2013.
This took place just one week after Fran Keller was released from prison on a personal bond, allowing her to return home for Thanksgiving, and one week before her ex-husband, Dan, with whom she remains close, was also released. The Kellers, who ran a day care from their home outside Austin until 1992, were freed in part because the doctor who testified against them in the early nineties recanted his testimony. The doctor’s name was Michael Mouw, and he had been working at the emergency room at Brackenridge Hospital in downtown Austin shortly after a three-year-old girl first made allegations against the Kellers. At the time he noticed what he thought were irregularities in the shape of the girl’s hymen, but several years later he heard a presentation that included slides depicting normal genital variations in children. That gave him pause, as did his memories of the emotional atmosphere that prevailed in the emergency room. “In the ER it is always guilty until proven innocent,” he told a journalist in 2009. “I’m serious.”20 He said his own attitude had substantially evolved, and in the summer of 2013 he testified that his original diagnosis—the only physical evidence in the Keller case—had been wrong. “Sometimes it takes time to figure out what you don’t know,” he said. “I was mistaken.”21
Scientific advances like these drove many of the exonerations appeals courts handed down in the last twenty-five years. In a judicial system that relies so heavily on the testimony of credentialed experts, even the most obviously coercive therapeutic interviews were often allowed to stand until research psychiatrists documented and quantified child suggestibility in controlled experiments. In 1995 the American Psychological Association published perhaps the most important volume of this work, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony. After walking readers through a history of legal approaches to the problem of child suggestibility, the book’s authors, Stephen J. Ceci and Maggie Bruck, looked at the ways different aspects of a forensic interview could affect a child’s accuracy and reliability. Repeated interviews, they found, allowed children to describe what happened to them in more detail, but these descriptions also became less accurate with each successive session.22 They also cited a large body of work indicating that in interviews with very young children, interviewer bias played an enormously important role. Although interviewers who were familiar with what actually happened going into the interview tended to elicit accurate accounts from children, interviewers starting out from incorrect hypotheses led children into providing inaccurate information of their own.23
Alongside Ceci and Bruck, the work of the research psychologist Elizabeth Loftus informed a number of appeal efforts that overturned abuse convictions.24 Loftus conducted a famous study in 1995 in which she gave test subjects brief narratives, supposedly furnished by the test subjects’ relatives, describing past events in their own lives. Included among a handful of true stories was a fabricated tale about getting lost in a shopping mall around the age of five. Loftus told her two-dozen participants that if they had no independent memories of any of the events, they should say so; nevertheless, a quarter of them claimed to recall their experience in the shopping mall, and some even embellished the story with unwittingly invented details of their own.25 Though other researchers have since criticized the study for failing to take real psychological trauma into account—and of course it would be wildly unethical for researchers to try to implant false memories of rape or violence—the experiment’s simplicity and elegance allowed it to function as a kind of shorthand for a whole field of research.
Today these scientific advances are cited and praised even by some of those whose work they criticize. “Nowadays, as opposed to back when McMartin took place,” one CII official told the New York Times in 2013, “there’s a very clear protocol about how to interview kids.” Lael Rubin echoed his sentiment, arguing that investigators and therapists have spent the last twenty-five years working out “who should do it, who should be present, how all of that should occur and be videotaped . . . it really created a dialogue of examining the best way to talk to children who might be victims of crimes.”26
With even Lael Rubin implicitly acknowledging that her investigators and therapists were out of their depth in 1983 and 1984, some people came to believe that the pendulum had swung too far toward skepticism. Political scientist Ross E. Cheit spent some fifteen years poring over police and court records from the day care and ritual abuse cases, and the results of his work were published in 2014. The central argument of The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children, is that “there was not, by any reasonable measure, an epidemic of ‘witch hunts’ in the 1980s.”27 Cheit sometimes acknowledges prosecutorial excess and investigative mistakes, but he argues that with just one exception, every case commonly cited as part of the witch hunt probably originate
d in some real instance of sexual abuse. His analysis of the McMartin case concludes that although five or maybe six of the female teachers should never have been charged (he thinks Peggy McMartin Buckey’s is a complicated case), the evidence against Ray Buckey was rather strong, and he believes the evidence against Kelly Michaels in Maplewood, New Jersey, was just as strong, if not stronger.28 Of the Country Walk case, which sent Frank and Ileana Fuster to prison, he writes, “It takes significant distortion of the evidence to suggest this case was anything but a solid conviction.”29
But Cheit’s book features its own significant distortions of the evidence. In his chapter on the Country Walk case, for example, Cheit, like his pro-prosecution predecessors, cites Noel Fuster’s positive test for gonorrhea of the throat as “the single most incriminating piece of evidence against Frank.”30 He refers to an article published in the Journal of Clinical Microbiology in 1983 as confirming the reliability of the test used on Noel’s culture sample, but he totally misinterprets the paper’s findings. “The positive predictive value of the RapID NH test was found to be 99.38 percent,” he writes. The phrase “positive predictive value” refers to the chance that a person who tests positive for a particular disease or condition actually does have that disease or condition, so for Cheit to cite such a high positive predictive value for the RapID NH looks very damning. The problem is that the 99.38 figure appears nowhere in the paper Cheit cites, nor can it be extrapolated from any of its conclusions.
More recent research, much of which Cheit either discounts or fails to address, also suggests it would be unwise to place too much confidence in the positive test result. In 1988, the Centers for Disease Control (CDC) published a paper that specifically warned of the RapID NH test’s potential inability to distinguish sexually transmitted strains of gonorrhea from other bacteria normally found in children’s throats.31 A 1999 affidavit by that paper’s lead author reaffirmed the test’s inadequacy for making forensic diagnoses. In another paper, published six years later in the Journal of Medical Microbiology, the authors stated, “the identification of this pathogen can be problematic, and as such no single method is currently recommended for a definitive identification.”32 In its current recommendations for the medicolegal diagnosis of gonorrhea, the CDC states that “because investigations of sexual abuse may be initiated on the basis of a laboratory diagnosis of gonorrhea, only definitive/confirmed identifications of N. gonorrhoeae should be accepted.” The site notes that in order for an identification to qualify as definitive, the isolate must have been confirmed with at least two tests.33 Although accounts vary, it appears that only one test, the problematic RapID NH, was used to diagnose Fuster’s son with gonorrhea of the throat. By the current standards of medical forensics, that diagnosis is unreliable.
Cheit’s errors go well beyond the particulars of a medical debate—his book offers a basic misunderstanding of the social realities that surrounded the day care cases. Unwilling to acknowledge that a society in which child abuse actually takes place could also be a society that stages panics over allegations of child abuse, Cheit spends more than sixty pages arguing that, whatever excesses and mistakes may have occurred, they did not constitute any kind of larger social phenomenon. Cheit seems to operate under the impression that one cannot describe a case as a witch hunt unless it entailed the arrest, trial, and conviction of someone who was really completely innocent of any wrongdoing whatsoever. By these criteria the sex ring investigations in Jordan, Minnesota, were not the product of a panic: James Rud, who really did abuse children, pled guilty, but none of the others accused of participating in the sex ring were actually convicted in court. Nor can the convictions of Dan and Fran Keller in Austin be said to have resulted from witch hunts. Though excessively interviewed children did make bizarre claims about satanic abuse, Cheit writes, those claims “were not part of the original criminal case against the Kellers, and they apparently involved only a small number of the parents and children who were interviewed in the case.”34 Again, by these criteria one would also accuse American historians of exaggerating the extent to which the Salem witch trials themselves constituted a witch hunt. A number of Salem residents, though suspected of witchcraft, were never formally charged—“What kind of witch hunt or ‘justice denied’ results in no charges whatsoever?” Cheit writes in his book—and more than two dozen of those people who were charged were found not guilty.35 One servant was even tried for falsely accusing her mistress of practicing witchcraft.
Cheit argues that it is only by deliberately ignoring key differences among McMartin, Country Walk, and other cases that one can see them as all part of the same phenomenon. He is insistent about “the need to treat children as individuals and to take individual circumstances into account.”36 Yet only one kind of childhood experience is legitimized in his book, despite the fact that a number of people involved with the day care trials as children have since spoken out as adults. In 2005 the Los Angeles Times published an interview with Kyle Zirpolo, a then-thirty-year-old former McMartin student whose accusations resulted in some of the criminal charges that were eventually filed. The article was headlined “I’m Sorry.” Zirpolo remembered CII therapists “almost giggling and laughing, saying, ‘Oh, we know these things happened to you.’” He also remembered his mother asking whether he had ever played the naked movie star game. “After she asked me a hundred times,” he said, “I probably said yeah, I did play that game.” He said he knew his allegations were lies from the beginning, which forced him into a difficult balancing act: the encouragement he received from everybody for “remembering” what happened had to be weighed against the worry that he would eventually make a mistake. “At night in bed,” he said, “I would think hard about things I had said in the past and try to repeat only the things I knew I’d said before.” Zirpolo said that not everything about McMartin was clear to him even two decades on and that he didn’t want to speak on behalf of any of the other students. “But I never forgot I was lying.”37
Jennifer*, for many years, didn’t have Zirpolo’s confidence in her own memories, though she recalled the mundane aspects of her church basement day care rather clearly. “I remember baking,” she said. “I remember going into the church’s kitchen and baking as a group.”38 Then the day care moved to what she described as “kind of a Victorian house.” She remembered its large rooms and its two floors.
She grew up in a small town of about ten thousand working-class people, and her parents both had full-time jobs, which meant that Jennifer spent mornings and afternoons at day care under the supervision of Chuck, his wife, Linda, and another woman named Janice. By the time Chuck was accused of sexually abusing children in 1984, Jennifer had graduated to elementary school. She was seven years old when her mother first took her to the police station for an interview. “A man—I can’t remember if he was in uniform or not—had these anatomically correct dolls,” Jennifer said. “And he asked me to show him stuff, and I didn’t know what he was talking about.” Much about the early days of the investigation was confusing, but the energy that surrounded that first police interview was palpable, and it persisted through the days that followed. “I remember it was, like, I could tell there was a buzz in my family,” Jennifer said. “My mom was very drawn into it, and there were lots of phone conversations and meetings, and things happened. I remember my mom saying that a boy who I didn’t know told his mom that something bad had happened, and she asked me what happened. I said nothing had happened.”
It was the therapy sessions, which began soon after the first police interview and continued through Jennifer’s adolescence, that had the biggest impact on her life. “What happened in therapy for me was the most—that was where all the trauma happened,” she said. Jennifer went to regular one-on-one meetings with a therapist named Miriam, who also saw other children who had been allegedly abused at the day care. Miriam used dolls to demonstrate sex acts and then asked Jennifer to affirm that these things had happened to her. “I rem
ember getting massive headaches,” Jennifer said. “And I remember Miriam saying, ‘Say this happened to you, it did, it did’—repeatedly—‘it did, didn’t it?’ Over and over again.” The questions made her “deeply uncomfortable” not only because of their subject matter but also because, like any seven-year-old, Jennifer’s sense of the world and her place in it was delicate and unstable. Shortly before the therapy began, or maybe during its earliest weeks, a popular girl at school had teased Jennifer by saying that her father wasn’t actually her father. This was actually true—Jennifer’s stepfather had adopted her when she was three. There was an adoption party at some point, but Jennifer had forgotten, and she ran home to her mother, upset that the girl had insulted the man she thought of as her father. “But he’s not your father!” her mother said. “He adopted you! Remember?” Therapy compounded the feelings of unease this episode brought about. “There was this sense like, what do you mean my dad’s not my real dad?” Jennifer says. “What do you mean penises and vaginas do these things together? You think an adult did that to me? You want me to use these words?”
Jennifer remembers standing in front of a judge who asked whether she wanted to put all of this behind her. Jennifer understood the judge’s phrase, “it all,” as referring to therapy, and she badly wanted not to go to therapy anymore, so she “finally just started making stuff up.” The trial passed. Chuck was convicted and sentenced to more than fifty years in prison. Therapy continued, though—there would be no putting it behind her. The parents’ support group also continued, at least for a time. “I hated the mention of certain families’ names,” Jennifer says. “I hated when [my mom] talked about the Calvys. We’d go to their house, and the kids were supposed to hang out, and the parents were talking about the court case.” After Miriam, Jennifer saw a therapist named Richard, who always had a plastic cup full of soda. It frightened her that Richard would lock the door at the start of their sessions, and one time she threw the soda cup, kicked him in the shins, and pounded on the door. Richard decided this meant Jennifer was afraid that Chuck would get out of jail and hurt her again. “So they took me in a state trooper’s car with my parents—I was in the front, they sat in the back—to a jail. I had to get a tour of the jail to see how safe it was, the whole time freaking out, not wanting to be there.”