Issue 342
June 24, 2005

INDEX

Articles

q Memory, Pain and the Truth by Maura Dolan

q Miss. town forges a hopeful future from racist past by Brian MacQuarrie

q Never Steal a Turkey in Lubbock, and Other Tales of Texas Justice by Molly Ivins

q Juries on Trial - Editorial

q Jackson Case Exposes Prosecutorial Pitfalls by Jeremiah Marquez

q DNA clears dad in girl’s slaying by Deborah Horan, Jo Napolitano and John Biemer

q Trial to Probe Notorious B.I.G.’s Slaying by Ryan Pearson

The following article appeared in latimes.com on June 21, 2005:

Memory, Pain and the Truth

A leading psychologist long skeptical about 'repressed' recollections challenged a much-cited sex abuse claim. Scorn and litigation ensued.

By Maura Dolan

Times Staff Writer

SAN FRANCISCO — Psychologist Elizabeth F. Loftus was instantly suspicious when she read about a 17-year-old called "Jane Doe" who purportedly had recovered a memory of her mother sexually molesting her as a child.

The claim, published by two psychiatry professors in a professional journal, was being hailed as proof of "repressed memory," a theory that says the mind avoids intense pain by sealing off recollection of traumatic events. Under the theory, the victim may recover the memory accurately years later, usually in therapy.

The Jane Doe study contradicted everything that Loftus had been saying in lecture halls and courtrooms around the country. A professor at UC Irvine, Loftus is a leading figure in the so-called memory wars, a divisive dispute about whether repressed memory is the biggest fraud to hit psychology in decades or the outcome of careful therapy in which patients are able to heal themselves by finally coming to grips with painful pasts.

Mindful of the power of case studies to spur diagnoses and change therapeutic practices, Loftus decided to investigate. Her "expose" of Jane Doe would ignite a firestorm over the ethics of revealing information about subjects of case studies and a legal battle over privacy rights that has reached the California Supreme Court.

Stepping outside the confines of academia and working with two private eyes, Loftus tracked down the family of Jane Doe and published an article casting doubt on whether the girl had ever been abused. She questioned the methods of the psychiatrist who reported both the initial abuse in 1984 and the recovered memory of it 11 years later and portrayed the accused mother as the true victim.

Even though Loftus revealed no names or hometowns, Jane Doe retaliated, claiming in a lawsuit that she had been abused again, this time by an internationally recognized psychologist probing her private affairs for "professional and commercial exploitation."

Loftus, 60, is tenacious and fearless in her work, though it doesn't necessarily show in a first meeting. Unassuming, with an air of vulnerability, she has shoulder-length dark blond hair and wears rimless glasses. She dresses with a hint of the 1960s, softening a professional black suit with a floppy black hat and calf-high boots.

Scholars have ranked her among the top psychologists of the 20th century. She has been elected to the National Academy of Scientists, won the Grawemeyer Prize — the largest monetary prize in psychology — and written 20 books and more than 400 scientific articles.

Her work has been influential. The American Psychological Assn. "has raised a lot of red flags about the notion of recovered memories," a spokeswoman said. "The general consensus is that it is very rare."

Loftus also has testified or consulted about the fallibility of memory in hundreds of trials, including the McMartin Pre-School and Hillside Strangler cases. During the course of her trial work, she made enemies.

Critics saw her as a silencer of the sexually abused, even though she once startled a courtroom by testifying that she, too, had been sexually molested, by a male baby-sitter.

Her confrontation with believers in repressed memory, including alleged sexual abuse victims, grew so intense that one campus she visited assigned a guard to accompany her to a lecture. A bullet-riddled paper target hangs in her office at UC Irvine, a testament to her firearms training in the face of threats on her life.

At the same time, Loftus has become a hero to people who say they were falsely accused because of others' "repressed" memories. They show up at her lectures to thank her, and she greets them like old friends.

Loftus feared the Jane Doe study would encourage more false charges. "I can't stand to see injustice," she said. "I just can't stand it."

Loftus called her probe of the case "my own little innocence project."

The Jane Doe study was published in the May 1997 issue of Child Maltreatment. The primary author, Dr. David L. Corwin, said he had first interviewed Jane as a 6-year-old in 1984 during a custody battle.

In the videotaped interview, the little girl told Corwin that her mother repeatedly put her finger up her vagina while bathing her and admonished her to tell no one. She also said her mother burned her feet on a stove.

It was Corwin's professional opinion that the mother had abused the child. The father won custody, and the mother eventually lost visitation rights.

Corwin, with permission from the father, showed Jane's videotape at conferences on child abuse. Ten years after his first contact with Jane, Corwin called her and her father for renewed permission to use the videotape. The father was then in a convalescent home recovering from a stroke, and the teenager was living in a foster home.

Jane gave her permission and called Corwin a year later to ask to view the video. She was 17, and her father had died. Corwin agreed to meet her, and her foster mother went along.

Jane told the psychiatrist she could no longer remember being abused by her mother. She remembered only the accusation.

"Do you remember anything about the concerns about possible sex abuse?" Corwin asked while videotaping her.

"No," she replied, and closed her eyes. "I mean, I remember that was part of the accusation, but I don't remember anything — wait a minute, yeah, I do."

Jane then said she remembered a number of things, including the bathing incident, and Corwin played the videotape of her at age 6.

"The little girl that I see in those videotapes I don't see as [having] made up those things…. I'm glad now that I don't have to keep trying to convince myself that my dad ever lied to me … I can put my dad's memory to rest in my mind."

Corwin mentioned "traumatic amnesia" in his subsequent study and described Jane's experience as a "spontaneous return" of a "reportedly unrecallable memory." With Jane's permission, he showed the new videotape at national and international conferences.

Experts to whom Corwin had shown the videotapes offered favorable commentary and

independent analysis in the child abuse journal.

Paul Ekman, a renowned psychologist who specializes in detecting deception, wrote that Jane's recounting of the abuse as a child allows "us to have confidence in [her] truthfulness."

Loftus was not persuaded. Typing the words "burned feet" and "Dr. Corwin" into an Internet search engine, she found a court case about the custody fight in Modesto. LexisNexis, death records and newspaper obituaries yielded other clues.

She called Melvin J. Guyer, a psychology professor at the University of Michigan. Guyer had been an expert witness in a trial in which Corwin had testified on the other side. Guyer, too, was suspicious and agreed to join Loftus in probing the Jane Doe story.

Loftus hired a private eye to pull the divorce records in Stanislaus County and asked a friend, also a private eye, to pull records in Solano County, where Jane had moved with her father. She and Guyer flew to Sacramento and drove to Modesto. They read the court records and interviewed Jane's stepmother, biological mother, foster mother and half brother.

Loftus said she felt "like a millionaire" when her sleuthing paid off. "I am very proud of the fact I found these people," she said.

The girl's mother cried when she met with the professors, describing the loss of her daughter as a nightmare. Loftus stayed in touch through notes, calls and cards.

"As you can imagine, I am the heroine of this mother, dropping in out of the blue after more than a decade after she lost visitation and custody," Loftus said.

Loftus also contacted Jane Doe by e-mail.

"I have no interest in furthering your research as it has already caused me enough pain and heartache," Jane told Loftus. To try to block Loftus, she filed an ethics complaint at the University of Washington, where Loftus was then teaching.

The university promptly confiscated Loftus' files, ordered her to speak to no one about the case and investigated her conduct for nearly two years.

"I was put under this horrible investigation where I was gagged from talking about this case," she said. "I had been a good-girl faculty member — I served on committees and worked hard — so I felt pretty betrayed by the institution where I had taught at that point for 27 years."

The university eventually exonerated Loftus of scholarly misconduct, but two of three members of a review committee suggested she take a remedial ethics course.

Freed at last to publish her research, Loftus "decided I had to get this thing out fast and try to stop it from being used against another innocent person."

Corwin's study already had become a potent weapon in the memory wars, Loftus said. Psychology professors presented it in their classrooms. Expert witnesses cited it in courtrooms. Lawyers considered it proof of repressed memory.

Loftus called a contact at the New Yorker, who told her the article was probably too academic for the magazine. She considered submitting it to a scholarly journal but knew that would mean a lengthy review process that would delay publication. "I felt there was a clock ticking, and every day that it was delayed was another day that someone was going to be harmed by this case," Loftus recalled.

She submitted the article to the Skeptical Inquirer, a publication of the Committee for the Scientific Investigation of Claims of the Paranormal. The nonprofit scientific and educational group encourages investigation of "fringe science" claims.

"I knew it would be available on the Web," Loftus said.

"Who Abused Jane Doe? The Hazards of the Single Case History" emphasized the

contentiousness of the battle for Jane Doe's custody, an arena particularly prone to false abuse accusations.

Loftus and Guyer observed that Child Protective Services had investigated Jane's allegations and taken no action, a fact they found significant because authorities at the time were quick to believe and prosecute charges of child abuse.

The professors also disclosed that a psychologist who had interviewed Jane, her mother, father and stepmother during the mid-1980s and reviewed records remained unconvinced of the abuse charges.

That psychologist, whom Corwin had not mentioned, said the girl sounded "mechanical" when she made the charges. It was never proved that the mother burned the girl's feet, the professional concluded. In fact, the child had a fungus condition that caused her skin to blister and peel.

Whereas Corwin's case study had presented the mother as a shady character, Loftus and Guyer portrayed the father as dishonest and alcoholic.

They also questioned whether Corwin should have shown Jane her childhood videotape. The girl's foster mother said it upset her, and she began to behave in "self-destructive" ways, the professors wrote.

"In sum, we believe that there are ample reasons to doubt whether Jane Doe was

physically or sexually abused by her mother, and to doubt much of the 'supporting evidence' used to support the hypothesis," they wrote.

Corwin, now a professor of pediatrics at the University of Utah School of Medicine and medical director of a hospital-based child abuse program, viewed the article as an attack. He said he was surprised by "the arrogance of thinking years later they could reconstruct something better than those who had firsthand knowledge at the time."

Jane Doe filed suit, identifying herself as Nicole Taus. Now 26 and an aviator in the Navy, Taus charged that Loftus invaded her privacy and defamed her.

Courts must protect confidentiality in case studies; otherwise "it will be open season on all anonymous human subjects of clinical and scientific research," argued Julian J. Hubbard, a lawyer for Taus. Hubbard did not return telephone calls, and Taus could not be reached for comment.

The lawsuit accused Loftus of developing a personal and unprofessional relationship with Taus' mother. When Taus asked her mother to accept responsibility for the abuse, her mother retorted that "Loftus told her it had never happened," the lawsuit said.

The suit also suggested that Loftus may have embraced Taus' mother because of the "suicide" of her own mother, who was found dead one morning in a swimming pool when Loftus was 14. The death was not ruled a suicide, and Loftus prefers to think it was an accident.

Citing an article Loftus wrote in Psychology Today, the suit described Loftus' "sense of guilt for being an adolescent who didn't know her time with her mother was limited" and reported that Loftus now feels "she works too much and that what she really wanted was a family."

Guyer, asked if the relationship between Loftus and the mother was appropriate, said he would have kept a greater distance. But "Beth wears her heart on her sleeve."

The lawsuit also accused Loftus and her collaborators of reporting on court records that were supposed to be confidential and using deceit to obtain interviews, charges Loftus strongly denies.

In ruling on Taus' suit in April, a Court of Appeal in San Francisco said that Loftus defamed Taus when she said in a lecture in 2002 that "Jane Doe" engaged in "destructive" behavior after seeing her childhood videotape and then disclosed that Taus was in the military.

Although Loftus had revealed no details about the "destructive" behavior, the appeals court reasoned that a listener might infer Taus was unfit for service.

The California Supreme Court will soon decide whether to accept an appeal by Loftus. If the state high court takes it, privacy law in California will probably be clarified for subjects like Jane Doe and academics and journalists who write about them.

If the court rejects the case, Loftus, her collaborators and the magazine will be forced to go to trial or try to reach a financial settlement with Taus.

Nearly 50 psychologists and psychiatrists, most of them university professors, have asked the state's highest court to intervene.

"The manner in which people remember and report past traumatic events is one of the most controversial issues confronting the mental health field today," the scientists wrote. If scientists can be sued for pursuing research, "then the scientific method and all the fruits of scientific endeavors are under grave threat," they said.

The litigation has been grueling for Loftus, and she suspects her "enemies" in the memory wars are behind it. One of them, a believer in repressed memory, stalks her and "infiltrated" the lecture in which she disclosed that Jane Doe served in the military, Loftus said.

But Loftus said she was glad that she helped a mother who was "railroaded."

"It makes me feel like a great human being," Loftus said.

* * * * *

The following article appeared on boston.com on June 20, 2005:

Miss. town forges a hopeful future from racist past

By Brian MacQuarrie, Globe Staff

PHILADELPHIA, Miss. -- Forty-one years ago this month, former FBI agent Dean Lytle recalled, the nighttime scene outside the Neshoba County Courthouse was enough to frighten hardened federal investigators. ''The square was filled with people," Lytle, 71, testified in a slightly wavering voice Friday inside the same brick building. ''They were standing shoulder to shoulder, and the crowd was very hostile."

Lytle had been dispatched here to investigate the disappearance of three young men -- James Earl Chaney, Andrew Goodman, and Michael H. Schwerner -- who had been killed by the Ku Klux Klan because of their efforts to register black voters in one of the most infamous acts of violence of the civil rights era.

Today, the courthouse square is nearly devoid of people, barricaded on all sides by a cordon of barrels and police tape as 50 law enforcement officers keep watch over the state murder trial of the alleged mastermind of those killings.

That defendant, Edgar Ray Killen, is an 80-year-old, part-time preacher whose body has been broken by a sawmill accident but whose allegiance to the racist principles of a Klan he once served has never been disavowed.

Unlike Killen, this small community made notorious by the murders, depicted in the 1988 movie ''Mississippi Burning," finally appears to be facing a sordid, tragic history that many of its 7,500 residents tried hard to forget. Much remains to be done, whites and blacks here say, but nearly all agree that Philadelphia is a changed, better place than 41

years ago tomorrow, when Chaney, Goodman, and Schwerner were ambushed and executed.

''We're trying to get this big elephant out of our living room," said Jewel McDonald, 59, a black woman who saw Klansmen beat her mother during a raid on her church. ''It's changed tremendously. People here today seem different than '64. They want this cloud to be lifted from Neshoba County."

The county demographics are roughly the same as they were four decades ago. Whites outnumber blacks by about 3 to 1. The public schools have been integrated for more than 30 years, and a black fire chief presides over a department that has disproportionately more minority firefighters than white ones, said City Clerk Brenda Mills. Even the presence of three black jurors in Killen's trial would have been unthinkable when the defendant was tried for conspiracy in the killings in 1967.

Eleven jurors voted to convict Killen in that federal trial, but one juror refused because, she said, she could never convict a preacher. Of 18 defendants in that case, seven were convicted but none served more than six years in prison. Killen walked away a free man.

Until recently, the memories of the slayings had rarely been voiced here, residents said. No memorial has been erected at the fork in the road, marked only by a tilted stop sign, where the men were cornered and shot by a mob of local Klansmen. And when Dick Molpus, then the Mississippi secretary of state, apologized to the victims' families on the 25th anniversary of the murders, the 1989 remark is believed to have harmed his career.

In 1999, the state reopened the case after one of the men convicted in the federal trial boasted that the ringleader had gone free. But key witnesses had died, and momentum to lay bare the old wounds began to lag. The turning point occurred last year, when a multiracial Philadelphia group seeking to commemorate the 40th anniversary of the killings persuaded first-term Attorney General Jim Hood to convene a grand jury.

An indictment for murder, the first charge ever leveled by the state in the case, was handed up in January against Killen, who has steadfastly proclaimed his innocence. Although prosecutors, who rested their case Saturday, believe that Killen was not at the killing site, Mississippi law allows a person involved in its planning to be charged with murder.

''I can't tell if a man is guilty or not guilty," said Mayor Rayburn Waddell, who seemed to choose his words carefully, as trial coverage played live on a computer screen behind him. ''But I believe that if a crime has been committed, you should be punished for it."

But, unless the locally based Philadelphia Coalition had pressed the state to pursue Killen, activists said, the trial would not have occurred. ''When I came here last year, there was still a lingering suspicion, a secret that everyone knew but no one talked about -- that these boys had been murdered by people from this community and nothing had been done about it," said Susan Glisson, director of the William Winter Institute for Racial Reconciliation at the University of Mississippi.

''What happened here did not happen in the vacuum of Philadelphia," said Glisson, who supported the coalition's efforts. ''The Klansmen were simply the gun, but the gun was loaded by the state."

The murders of Chaney, 21, a black man from Meridian, Miss., and Goodman, 20, and Schwerner, 24, white men from New York City were carefully choreographed, according to witnesses. The trio were part of a young civil rights contingent that worked to register black voters in Mississippi during the ''Freedom Summer" of 1964. When their efforts spread to Philadelphia, witnesses said, local Klansmen headed by Killen burned a black church to lure the trio to investigate.

The men were arrested in Philadelphia on a speeding charge, jailed by complicit police for several hours while Klansmen assembled, and then ambushed at night as they drove out of the town. Their bodies were buried in an earthen dam, where they were discovered 44 days after the killings.

Killen is alleged to have planned the shootings and chosen the burial site.

''The state should have acted sooner," said Derrick Johnson, president of the Mississippi branch of the National Association for the Advancement of Colored People. ''There was not only denial going on, but coverup by the state."

Johnson, however, praised the trial as the latest in a string of high-profile prosecutions of crimes from the civil rights era.

In 1994, Byron de la Beckwith was convicted in the 1963 assassination of Medgar Evers, field secretary of the Mississippi NAACP. In 2002, Bobby Frank Cherry was found guilty in the 1963 bombing of an Alabama church that killed four black girls. And in Chicago this month, the body of 14-year-old Emmett Till, kidnapped and murdered in Mississippi in 1955, was exhumed for possible criminal evidence.

Still, black leaders said, more needs to be done. George Roberts, president of the NAACP in neighboring Kemper County, said the visible signs of racial progress mask an undercurrent of distrust and worse. ''A lot of people still have fear," Roberts said. ''Some refuse to participate in various activities because of a fear of reprisal, and some refuse to come to this trial."

But, unlike 1964, racially mixed groups of students can be seen at diners. The town's tourist board has printed a map of civil rights sites -- including the murder site. And on July 1, a stretch of state Highway 19, where Chaney, Goodman, and Schwerner were chased before their deaths, will be named in honor of the men. Plans also are being discussed to purchase the former jail, where the victims were held, and convert the facility into a civil rights museum.

''We were just children when this happened," said a white Philadelphia woman, who asked that her name not be used. ''We don't want to see us portrayed as barefoot, backward people. That's not who we are. We're not the people who were here 40 years ago."

More than 100 people attended two memorial services in Philadelphia yesterday to honor the three slain civil rights workers. The trial is scheduled to resume today.

Outside the courthouse Friday, after the trial had been adjourned for the day, Killen was pushed in a wheelchair to a car. At the beginning of the trial, Killen had been greeted by a man who identified himself as a member of the Ku Klux Klan. On Friday, none of the bystanders offered support to Killen as he passed Carolyn Goodman, the 89-year-old mother of one of the murder victims.

Goodman testified Friday about her son's idealism, and that she had approved of his journey to Mississippi. ''This is a person who saw that all people are important," Goodman said, her arm held by another son. ''Andy didn't come down here to be a martyr. He came here to help people."

On the stand, she read a postcard her son had sent home from nearby Meridian, shortly before he died. ''This is a wonderful town and the weather is fine," he wrote. ''I wish you were here. People here are wonderful."

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The following article appeared on latimes.com on June 20, 2005:

Never Steal a Turkey in Lubbock, and Other Tales of Texas Justice

Racism, 'Tuff on Crime' judges and gutless politicians warp the system.

By Molly Ivins

Molly Ivins is the author, most recently, of "Who Let the Dogs In? Incredible Political Animals I Have Known" (Random House, 2004).

The U.S. Supreme Court rules yet again that another Texas case was wrongfully decided — this time because 19 of 20 blacks had been knocked off the jury pool — and I'm asked to explain what's wrong with criminal justice in Texas, in 750 words. Sure, no problem.

I don't like to be cynical, but one can get a little tired after a long time watching justice meted out in this state. The story doesn't change much, and nothing seems to get better. But for what it's worth, here's what's at the bottom of it.

(1) Racism. In 1998, James Byrd Jr. was dragged to death behind a pickup truck for being black in Jasper. Two of the three men responsible got the death penalty. This was not first time in Texas a white man was given the death penalty for killing a black man. It was the second.

(2) More racism. In 1999, about one-fifth of the adult black citizens of Tulia, population 5,000, were arrested and accused of cocaine dealing on the uncorroborated testimony of a bent narc and notorious liar. No one even stopped to ask how a town that size could support 46 cocaine dealers until a reporter from the Texas Observer showed up.

(3) We elect our prosecutors. There are 254 counties in Texas, nearly every one with its own elected district attorney. The way to get elected is to be "Tuff on Crime." The way to lose is to be "Soft on Crime." In the big cities — Houston, Dallas and San Antonio, among the 10 largest in the nation — we get the usual plead-out mill: perp's public defender advises him to cop to reduced charges, anything to avoid a trial.

But in the small towns and rural areas where heavy crime is rare, a D.A. has to whup on whoever gets caught. Sometime in the '80s, a guy in Lubbock stole 12 frozen turkeys. They were recovered, still frozen. Not only no damage, but no defrost. The guy bought 75 years, which works out to 6.3 years per bird. Don't steal a turkey in Lubbock.

(4) We elect our judges. Only way to get elected is to be Tuff on Crime. Only way to lose is to be Soft on Crime. In the Case of the Sleeping Lawyer, a guy on death row appealed on grounds his lawyer had slept through his trial, thus providing him with less than adequate counsel. The Texas Court of Criminal Appeals ruled that even though the lawyer slept through much of the trial, he didn't sleep during the important parts, so the conviction stood.

(5) An appeal process that isn't worth squat. If you're in, you can't get out. If you draw the death penalty in Texas, you effectively have 30 days to present new evidence. After that, you're toast. Doesn't matter if someone else confesses on Day 31. Doesn't even matter if you could provide DNA evidence proving it wasn't you. (The Legislature is still trying to fix that one.) Justices Antonin Scalia and Clarence Thomas are of the opinion that actual innocence is not necessarily a bar to execution (Herrera vs. Collins). It took a near-miracle to get the Tulia drug defendants out.

(6) Gutless politicians. Texas runs the largest prison system on Earth. Texas executes the retarded, the insane and people who were children when they committed their crimes, until the Supreme Court stopped that only three months ago. Texas executes foreigners without notifying their home countries. Every poll shows Texans do not want to execute people in these categories. Politicians are afraid to stop it for fear someone will say they're Soft on Crime.

You've met Labrador retrievers brighter than some of the people we execute. We had a guy on the row who thought he was going to die because he couldn't read. He spent hours on his bunk trying to memorize the ABCs. Never could do it. We execute people easily as crazy as the one in Florida who spent years crawling around on all fours, barking, under the impression that he was a black dog in the seventh circle of hell. But I'm sure they understand right from wrong, and know why they're being punished. Arf.

(7) A bent system. For years Texas used an expert witness most people called "Dr. Death." Never saw a perp he couldn't guarantee would be a mortal menace for the rest of his days. Only one solution: Kill him. Just one little hitch: In many of those cases, Dr. Death never examined the accused, never talked to the accused, never got near the accused. He was reprimanded twice in the 1980s by the American Psychiatric Assn., then expelled from the group in 1995 because his evidence was found unethical and untrustworthy.

In another case, the Supremes threw out the death sentence because the psychologist said the perp was a danger on account of being Latino. Then there was the Houston police lab, so unbelievably sorry, sloppy and just plain maliciously wrong that the courts had to throw out a bunch of those cases too.

But please don't get the idea that just because a few of these errors were caught on long-shot appeals, justice actually works here. We know about so many more miscarriages it would make you vomit, and can't even guess at how many we don't know about.

I'm at 932 words and I haven't even gotten to the 5th Circuit, the parole board, why you can spend months in jail without ever seeing a lawyer …

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The following article appeared on latimes.com on June 20, 2005:

EDITORIAL

Juries on Trial

The Michael Jackson jury, in its willingness to talk publicly after its verdict, offered a glimpse of a rarely acknowledged factor in our legal system: how the personal feelings of jurors affect their verdicts.

Juries are supposed to rule on the facts of the case, of course, but they are made up of human beings, and humans tend to distrust those they dislike. It happens at work, it happens in families and it certainly creeps into juries — especially in a long trial. Lawyers on both sides of criminal cases go to some lengths to bond with jury members who show an inkling of sympathy.

Thomas A. Mesereau Jr., Jackson's lead attorney, successfully used a private eye and psychology to put the mother of Jackson's young accuser on trial. One juror spoke of her irritation when the mother, a problematic witness from the get-go, snapped her fingers. "I thought, 'Don't snap your fingers at me, lady,' " she said. Another juror, asked about the mother allowing her son to sleep in Jackson's bed, responded: "What mother in her right mind would allow that to happen?" Mesereau previously worked his negative magic on Bonny Lee Bakley, the murdered wife of recently acquitted actor Robert Blake. By the time Mesereau left the case in a dispute with Blake, half the world seemed to have motive to murder Bakley. Again, he had some rich material to work with, but without Mesereau's costly private investigators, who would ever have known all the grimy details?

The chosen villain in the 1995 O.J. Simpson murder trial was LAPD Det. Mark Fuhrman. Simpson's "Dream Team" started demolishing him long before a jury was chosen, in Vanity Fair magazine. In the article, unnamed defense attorneys called Fuhrman a racist "bad cop" who might have planted evidence to frame Simpson. After the trial, the daughter of one juror said Fuhrman was a major factor in the juror's vote to acquit.

There's a mirror image to this tactic: the defendant makeover. HealthSouth Chief Executive Richard M. Scrushy, accused of fraud at the Birmingham, Ala., company, went to work on his godly side soon after his 2003 indictment, switching to a mostly African American church, preaching at other churches and financing his own religious talk show. Preachers he befriended came to support him at his trial. The case, once thought a prosecution slam-dunk, is now in the hands of a racially mixed jury — a deadlocked jury.

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The following article appeared on washingtonpost.com on June 18, 2005:

Jackson Case Exposes Prosecuting Pitfalls

By JEREMIAH MARQUEZ

The Associated Press

SANTA MARIA, Calif. -- Set aside Michael Jackson's wealth and celebrity, and his trial could be a textbook lesson _ a study in the pitfalls prosecutors face in trying to make child-molestation charges stick.

The credibility of the accuser and his family came under withering attack. Some of the children's testimony was inconsistent and muddled. And there was no DNA evidence, no smoking gun.

"Some prosecutors don't want to touch these cases with a 10-foot pole because they are so difficult," said Victor Vieth, director of child abuse centers at the American Prosecutors Research Institute in Alexandria, Va.

It's unclear how many of the thousands of molestation cases filed each year nationally end with jurors returning guilty verdicts; rough estimates run between 50 and 75 percent. In California, more than 3,420 defendants were found guilty of various sex crimes against minors in 2003, a conviction rate above 74 percent, according to the state Department of Justice.

However, the rate generally is lower in cases that depend heavily on the victim's word, Vieth said.

That's partly because prosecutors not only have to present a case against the alleged abuser, they must protect the accuser against defense counterattacks.

"The first question the jury is going to ask is 'Why would this child make up these allegations?'" said Leonard Levine, a prominent Los Angeles defense lawyer who has handled close to 100 child molestation cases. "And if you can give them a reason as a defense attorney, you're halfway there."

Jackson's prosecutor, Santa Barbara County District Attorney Tom Sneddon, said molestation cases are hard to prove because they often leave no physical evidence.

"They're far more difficult than murder cases. Murder cases you usually have a gun or a knife or blood or fingerprints or something," Sneddon said in an interview. "I've tried cases where they never found the body. I've had two of those cases. And those cases were much easier to try than some of the child molestation cases I've had."

The Jackson case had factors that complicated the prosecutors' job, said Sneddon's deputy, Ron Zonen.

"This case became more difficult because we were dealing with a 13-year-old boy from East L.A. who was rather unsophisticated, who was against not just a celebrity but an international superstar," Zonen said.

The deep pockets that come with celebrity tipped the scales even more. Jackson was able to hire a top defense lawyer, Thomas Mesereau Jr., who dug up alleged scams involving the accuser's family to portray them as career con artists who had been after the singer's money.

Prosecutors were able to capitalize on an unusual California law to introduce old _ and uncharged _ molestation allegations against Jackson, but those accusations couldn't eclipse doubts about the family's credibility.

Sneddon and his team also couldn't produce any biological or medical evidence of abuse. Only 20 percent of cases involve such physical evidence, according to David Finkelhor, director of the Crimes against Children Research Center at the University of New Hampshire.

As a result, many prosecutors are forced to build cases on testimony alone, a strategy made more risky when the witnesses are children, who can be rattled and have trouble recalling key details in court.

Concerns about flawed child testimony grew in the 1980s and '90s, after molestation cases such as the McMartin Preschool case in Los Angeles County, the Little Rascals case in North Carolina and the Margaret Kelly Michaels case in New Jersey fell apart.

Interviewing techniques have since improved, and some jurors have become more forgiving of child testimony partly because of the Catholic church sex abuse scandal and child abduction and murders that have drawn national attention, lawyers said.

However, none of that helped when the brother of Jackson's accuser testified and gave an account of the alleged molestation that differed from statements he made to sheriff's investigators. And the accuser himself initially couldn't recall telling a grand jury that Jackson said it was "natural" when the singer appeared nude in front of him and his brother.

"As a prosecutor, once you lose the credibility of your witness, you're done," said Larry Hardoon, former lead prosecutor in Massachusetts' infamous Fells Acres sex abuse case, which produced convictions but led to the discrediting of the interview techniques used by investigators. "It's the end of the story."

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The following article appeared on chicagotribune.com on June 18, 2005:

DNA clears dad in girl's slaying

Father jailed 8 months in 3-year-old's death

By Deborah Horan, Jo Napolitano and John Biemer, Tribune staff reporters. Tribune staff reporter Steve Mills contributed to this report

After nearly eight months in jail, a Will County man who police said had confessed on videotape to the June 2004 murder and sexual assault of his 3-year-old daughter was set free Friday, after DNA tests failed to link him to the crime.

Kevin Fox walked out of jail and into a knot of cheering, sobbing relatives and friends after a brief court hearing at which prosecutors said they no longer had enough evidence to hold Fox for the slaying of his daughter, Riley.

The DNA testing of evidence resulted in an "absolute exclusion of Kevin Fox as a donor," State's Atty. James Glasgow told the judge.

A short time later, a tearful but smiling Fox emerged from jail. He walked with an arm around his wife, Melissa, and 7-year-old son, Tyler, at his side. He was also accompanied by his lawyers, Kathleen Zellner and Paul DeLuca.

He said he was eager to spend the night with his family in his own home. "I dreamed of that every night, every single night," he said. "Finally, it's here."

Fox turned aside questions about the videotaped confession at the heart of the case, saying "it was a nightmare and I don't want to relive it right now."

But later, in an interview with the Tribune, he said he was "fed lies and threats the entire time." His wife, who stood by him through his arrest and time in jail, said that when she was questioned "they messed with my mind so much in what little time they had so I couldn't even imagine what they did" with him.

Fox's release sidetracked a case that was contentious from the start, and one that whipsawed the emotions of residents in the tiny community of Wilmington where it occurred. Faced with the disappearance of a child, they gathered together to search for her and mourned on learning she had been slain.

Then, they were forced to come to grips with the idea one of their own had committed the crime. Now, a year after it all began, they are confronted with a new set of facts: that authorities erred when they charged Fox with the slaying.

The case also focused renewed attention on the issue of false confessions, one that has plagued the criminal justice system in Illinois. The Fox case appears to be the second in which a videotaped confession proved false.

In January 2002, Cook County prosecutors dismissed the murder case against Corethian Bell after DNA undermined a videotaped confession that he had killed his mother. Like Fox, Bell said police coerced him to confess. He spent 17 months in jail before he was released.

Though DNA cleared Bell and connected another man to his mother's slaying, police said they have no suspects in the Fox case. Glasgow stopped short of saying Fox was innocent, and said he could not explain why he confessed.

"Numerous confessions are made without coercion," he said.

In court, the case was marked by contentiousness, as Zellner took an aggressive tack to fight the charges. She criticized investigators for botching the investigation and took the unusual step of filing a federal civil rights lawsuit against the Will County sheriff's office and several detectives, alleging that they had coerced Fox's confession.

Zellner also investigated the case on Fox's behalf in an effort to develop other suspects, and she sought the DNA tests that led to Fox's release. She alleged sheriff's investigators and prosecutors had rushed to judgment in the case, relying on the confession without waiting for the tests.

"The ultimate thing to learn is, do the tests before you make the arrest," Zellner quipped after the hearing at which the charges were dropped.

Even after evidence was sent to the FBI's lab at Quantico, Va., Zellner charged that sheriff's officials told the agency not to pursue the testing. A report from the FBI lab indicates that a sheriff's officer told FBI analysts in early November to stop testing.

"Once they got a confession, they told them to stop the testing," Zellner said. "There's absolutely no excuse for not having those tested."

The decision to release Fox followed a meeting Thursday evening between Glasgow and Zellner, who recounted the discussion and described the county's lead prosecutor as "flabbergasted" by the DNA results.

Zellner criticized the Illinois State Police lab for failing to get a genetic profile when analysts at the Joliet lab examined the vaginal swab.

Lt. Lincoln Hampton, a state police spokesman, said the lab did only preliminary work on the case before the evidence was sent to a private lab, and so it never had the opportunity to try to isolate the DNA--an explanation Zellner challenged.

With the case against Fox dismissed, Glasgow said prosecutors and sheriff's detectives--although none whose work led to charges against Fox--will reopen the case and investigate it with renewed vigor.

Additional DNA testing also will be performed, he said.

"A vicious sexual predator murdered Riley Fox last June, and we are making it our No. 1 priority to reopen this case and aggressively investigate it ..." Glasgow said, adding that there were a "number of leads" investigators were reviewing.

Sheriff Paul Kaupas declined to answer questions about the case but read a brief statement in which he said that "... if evidence presents itself, we'll keep an open mind, continue the investigation and follow any and all leads."

The case began on a quiet Sunday last June. Fox was home with Riley and Tyler, while his wife was in Chicago taking part in a charity walk.

The night before, Fox told police, he had gone to a street festival. He had left the two children in the care of their grandparents. After he picked them up, around midnight, he put them to bed.

In the morning, the front door to the home was open, but Kevin Fox said he did not know whether his daughter had opened it and wandered off.

Between 500 and 600 volunteers took up the effort, and her body was found later that day in Forked Creek, 4 miles from the family's home.

An autopsy determined that Riley Fox had been drowned.

Kevin Fox, then 27, was arrested four months later after the sheriff's office said he gave a videotaped statement implicating himself in the crime.

According to sheriff's officials, Fox said in the videotape that he accidentally killed his daughter but tried to make her death look like a murder and sexual assault so police would not suspect him of the crime.

Fox, in the interview, said he sometimes despaired being in jail but never gave up hope that the truth would emerge and he would be released.

He told himself "there is a big light at the end of the tunnel. It's just how far is the tunnel. And we're arriving at the end."

Some observers charged that then-State's Atty. Jeff Tomczak, who was in a tight race for re-election against Glasgow, filed charges against Fox and quickly decided to seek the death penalty only to quiet criticism over the failure to make an arrest in the case.

Tomczak denied the allegations but eventually was beaten by Glasgow.