Mean Justice (74 page)

6. The DA’s failure to disclose evidence that the McCuan girls had made satanic allegations.

7. The fact that investigators and DA employees were improperly trained to investigate sex crimes involving children.

8. False medical evidence.

9. Coercive and suggestive interviews of child witnesses.

10. The use of confabulated testimony from the children.

9
. The defense failed to prove that the DA had hidden or destroyed tape-recorded interviews with the children, the judge ruled, marking yet another victory for the prosecution. Neither Steubbe—nor the defense team—heard from the original Kniffen prosecutor, Medalyian Grady. In an interview with the author, however, Grady recalled taping virtually every significant conversation with Jenny and Jane McCuan. The tapes were never turned over to the defense, as required by law—apparent proof that evidence had indeed been withheld in the case. (Later, in 1998, evidence surfaced that yet another crucial tape that would have aided a defendant in the Cox molestation ring had been kept secret—and that Kern County officials allegedly perjured themselves about its existence.)

10
. “These interviewers had one hypothesis, it seems—that these children had been abused,” Professor Maggie Bruck, a pioneering researcher in the field of the reliability of children’s testimony, swore during the habeas hearing. “There was no chance for these children to deny being abused. . . . Through the use of bribes . . . threats . . . playing one child off the other . . . you can get children to make statements of things that never happened. And those statements can be quite damaging.”

Bruck is an associate professor of pediatrics at McGill University in Montreal, and the coauthor of
Jeopardy in the Courtroom
(New York: American Psychological Association, 1995). Judge Steubbe, in an interview with the author, called her one of the most impressive witnesses in the case, citing her catalog of research proving that the prosecutors and investigators had pursued their case in exactly the wrong way. It wasn’t that Bruck could
prove that the children had lied about everything—if she had said that, Steubbe likely would have considered her biased and disregarded virtually everything she said. Instead, Bruck merely said that the testimony of the children was unreliable, that no one could know truth from fiction in it. And she knew this to be so because she could take virtually any group of normal children and, over the course of one or more interviews, persuade them that they had been harmed by someone they had never met.

11
. Sandra M. Snyder, United States Magistrate, “Finding and Recommendation,”
Howard Weimer vs. William Duncan,
United States District Court for the Eastern District of California Case CV-F 95-5411. The case was yet another victory in Kern County for the Portland, Oregon, attorney Michael Snedeker, who represented the Kniffens, Donna Sue Hubbard and the Pitts defendants on appeal, and who coauthored the book
Satan’s Silence
to chronicle similar such cases.

12
. Jonathan Nelson, “Ex-foster dad leaves prison,”
Bakersfield Californian,
January 7, 1998.

13
. Stanley Simrin, “Points and Authorities in Support of Motion to Add Claim of Governmental Misconduct,” and attached transcripts, In re Jeffrey B. Modahl on Habeas Corpus, Kern County Superior Court Case HC5752; and the author’s interviews with Stan Simrin and Deputy DA Craig Phillips.

14
. Ibid; and the author’s interview with Stan Simrin.

15
. Ibid.

16
. Author’s interview with Craig Phillips. Phillips, in the interview with the author, said that he acted ethically in the Modahl case, provided the tape recording to the defense as soon as he learned of its existence from Deputy Connie Ericsson, and still believes Carla’s testimony at trial. He described her reluctance to testify against her father in the 1986 trial—not because the accusations were untrue, but because the girl felt bad about causing her father to be in trouble. In the end, she testified only because her grandmother—Modahl’s mother—told her to go in and tell the truth, no matter what happened, Phillips recalled. He also pointed out that he had nothing to do with any of the discredited and successfully appealed molestation-ring prosecutions in Kern County, and that alone among the ring cases, his is the only one to hold up over the years. Indeed, two defendants who successfully appealed
their convictions and won the right to new trials—Richard Alan Cox and Ruth Ann Taylor—subsequently pleaded guilty anyway, albeit to lesser sentences (twelve and six years apiece, respectively). Phillips said he does not know personally if improprieties occurred in other Kern County ring cases, and he offered no opinion on the rationale employed by appeals courts to reverse them. “I had nothing to do with those cases,” he said. “I was one of the outsiders back then. I only know what I did in this case.”

17
. Laura Mecoy, “Backlash Builds Over Abuse Claims,”
San Jose Mercury News,
June 13, 1994; Ofra Bikel, “Innocence Lost: The Plea,”
Frontline,
broadcast May 27, 1997, and its internet edition, “Other Well-Known Cases,” at
www.pbs.org/wgbh/pages/frontline/shows/innocence/etc/other.html
; and San Diego County Grand Jury for 1991–92, “Child Sexual Abuse, Assault, and Molest Issues.”

18
. Bikel, “Innocence Lost: The Plea,” Nathan and Snedeker, “Satan’s Silence,” Editorial, “ ‘The Little Rascals Case,”
The Washington Post,
May 24, 1997; Estes Thompson, “ ‘Rascals’ scandal ends,”
Philadelphia Daily News,
May 24, 1997.

19
. Alison Fitzgerald, “Verdicts voided in another child molestation case,”
The Philadelphia Inquirer
, June 13, 1998; Dorothy Rabinowitz, “A Darkness in Massachusetts II,”
The Wall Street Journal,
January 30, 1995; Rabinowitz, “A Darkness in Massachusetts II,”
The Wall Street Journal,
March 14, 1995; Ruling granting a new trial,
Commonwealth of Massachusetts vs. Cheryl Amirault Lefave,
Middlesex ss., Criminal Action 85-63 and related cases, Judge Isaac Borenstein, June 12, 1998.

20
. Kenneth Lanning, head of the FBI’s Behavior Sciences Unit, conducted an extensive study of allegations of satanic abuse and satanic conspiracies that were alleged in communities around the country, including Kern County’s hysteria in the mid-eighties. He turned up no evidence to support any of the allegations, and much to disprove them. Among other things, he found that epidemics of satanic-abuse allegations would often follow conferences at which social workers and therapists were exposed to a “survivor” or other speaker on the subject. Such was the case in Kern County, San Diego and numerous other communities where similar cases erupted in the mid-eighties and early nineties. (Kenneth V. Lanning, “Investigator’s Guide to Allegations of ‘Ritual’ Child
Abuse,” Behavioral Sciences Unit, National Center for the Analysis of Violent Crime, Federal Bureau of Investigation, Quantico, VA [1992].)

21
. According to a U.S. Justice Department report on innocent men and women convicted wrongfully then later freed from prison through DNA testing (“Convicted by Juries, Exonerated by Science,” June 1996), Zain posed a remarkable menace to the justice system:

A special commission convened by order of the West Virginia Supreme Court of Appeals investigated Zain and the West Virginia State Police Crime Laboratory. As a result of this investigation, the State Supreme Court ruled that none of the testimony given by Zain in more than 130 cases was credible. The court further ordered that Zain be indicted for perjury. It is sobering to reflect that but for the adventitious appearance of DNA typing. . . . Fred Zain might still be sending innocent persons to prison.

The West Virginia court also concluded that Zain’s “supervisors may have ignored or concealed complaints of his misconduct.” Zain was tried for perjury in West Virginia but acquitted. He described himself as a “scapegoat” and his attorney said that Zain had been ruined by a “witch hunt.” However, a county in Texas where Zain’s work also led to allegations of perjury had to pay an $850,000 settlement to two wrongfully convicted men, while West Virginia has paid more than $2 million in such settlements.

22
. Dan Weikel, “When the Prosecutor Is Guilty,”
Los Angeles Times,
May 13, 1994.

23
. 
Wang Zong Xiao vs. Reno,
81 F.3d 808 (9th Cir. 1996). The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s decision that “United States officials and prosecutors engaged in an extraordinary pattern of misconduct that violated the Fifth Amendment due-process rights of Wang Zong Xiao, a prosecution witness brought to the United States to testify falsely. . . . The government’s actions forced Wang to make a Hobson’s
choice: whether to abide by his oath in the American court to tell the truth on the witness stand, and thereby face near certain execution in the PRC [People’s Republic of China], or to lie under oath in the American court and receive leniency in the PRC.” The court also found gross prosecutorial misconduct because the U.S. Attorney knew Wang’s statements had been coerced through torture, and were therefore possessed of little credibility, yet did not inform the defense in the Goldfish case, as required by law. The appeals court also expressed disgust with the “callous” technical argument advanced by the U.S. government in its attempt to overturn Judge Orrick’s decison to dismiss the case. Prosecutors did not challenge the judge’s conclusion that they acted with gross negligence and deliberate indifference to Wang’s rights and well-being, but that the government “has no constitutional duty to protect a witness from harm stemming from his or her testimony that may occur after the witness is released from the government’s custody.” The appeals court ridiculed this position, finding that federal prosecutors had a duty to protect their witness once “the government placed Wang in danger of violating his own conscience and the federal perjury statute, or of facing torture and possible execution in China.”

24
. Mike Stanton, “DiPrete Charge Dismissed,”
Providence Journal-Bulletin,
March 12, 1997, and Tracy Breton, “Justices Explain DiPrete Decision,”
Providence Journal-Bulletin,
May 2, 1998.

25
. Lancaster County Judge Lawrence Stengel, who convicted Lambert in 1992 in a court trial without a jury, found no reason to overturn the conviction when presented with the same evidence Judge Dalzell had found so horrendous. That evidence included the fact that one of the key pieces of testimony used against Lambert—a supposed dying declaration from the murder victim, sixteen-year-old Laurie Snow, that “Michelle did it”—was probably false because Snow’s throat and vocal cords had been slashed too badly by her assailant. The medical expert who had reached that opinion before Lambert’s trial had been intimidated into changing his views when prosecutors threatened to cut off lucrative county contracts the expert had been receiving, Dalzell found. Lambert’s motive for murder was said to be her jealousy of Snow, who had dated Lambert’s boyfriend, Lawrence Yunkin.

26
. “Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent,” Death Penalty Information Center, Washington, D.C., July 1997 (with February 24, 1998, update). See also
Appendix B
for a list of cases.

27
. Ibid.

28
. Ibid. The report states:

The danger that innocent people will be executed because of errors in the criminal justice system is getting worse. . . . The average time spent on death row before release [because of innocence] is about seven years. This length of time is important because both state and federal legislation in recent years will shorten the length of time death-row inmates have before their execution. Currently, the average time between sentencing and execution is eight years. If that time is cut in half, then the typical innocent defendant on death row will be executed before it is discovered that a fatal mistake has been made.

The report also calculates that between 1973 and 1993, there was an average of 2.5 people released from death row every year because they were found innocent. From 1993 through July 1998, that rate nearly doubled to 4.8 a year.

29
. 
News at Sunrise,
Channel 17-TV, Bakersfield, March 4, 1999. Jagels’ response to
Mean Justice
consisted mostly of generalized comments and personal attacks; a number of his statements were inaccurate. In this interview and others, for example, Jagels repeatedly—and incorrectly—denounced the author for being from Los Angeles, suggesting that a journalist from the nation’s second largest city could never understand or accept the wholesome and conservative values Jagels claimed to champion in his community. (For the record, the author lives, not in Los Angeles, but in a Southern California town much smaller than Bakersfield.) The District Attorney also told reporters he was surprised by the points raised in the book, when in fact he and others in his office had been notified by letter of those points more than a year before publication and had declined to respond. He also asserted—incorrectly—that
his office had evidence in hand that corroborated the details of Jerry Coble’s testimony before agreeing to offer him a plea bargain.

30
. 
News at Five,
Channel 17-TV, Bakersfield, March 4, 1999.

31
. Danny Dunn was arrested on February 18, 1999, and died the following morning—the official publication date of
Mean Justice.
The Bakersfield print and broadcast media had extensively reported on the book and the surrounding controversy during the previous five days. The account of Danny Dunn’s arrest, incarceration, struggle with jail officers and death is drawn from the following documents: “Public Intoxication Arrest,” Bakersfield Police Department Report 99-06720, February 18, 1999; “Special News Release,” April 1999, Kern County Sheriff’s Department; “Report of Autopsy,” Case C-0310-99, Decedent: Daniel Anthony Dunn, by Dr. Donna L. Brown, forensic pathologist for the Kern County Sheriff-Coroner; and “Supplemental Report,” Kern County Sheriff’s Case SR99-04717, February 22, 1999, by Detective J. C. Plank, reviewed by Sheriff’s Sergeant Glenn Johnson, with attached reports by the jail officers involved in Danny Dunn’s death.