NO ONE OTHER than himself would consider James Menees an average guy unjustly savaged by the courts.
An expert witness had testified how Menees had sexually violated several children over a span of years; and, in each case, how he'd done so in clinically predictable ways.
In fact, because of Dr. Jeffrey Harrison's expert testimony on Menees' "emotional propensity" to re-offend, the judge later allowed the jury to hear a horror of revelations about Menees, even about what are termed his "prior bad acts." That is, victims who were molested years ago, and thus who were not included in the current charges, got to testify against him.
The jury convicted Menees on two counts of child molestation in September, 1993. In Harrison's words, Menees is a sexual predator.
How did it happen then, that the Arizona Board of Psychological Examiners, which dismisses most complaints it receives, was suddenly all ears two years ago when Menees cried foul against Harrison?
Menees charged that Harrison behaved unethically because he had not interviewed him, but relied instead on medical and criminal records. (Harrison requested to interview Menees, but the defense wouldn't allow it.)
In a stunning punch at its own profession, the nine-member board even took Menees' single complaint and expanded it into nine separate charges against Harrison, who is the state's "most outstanding" psychologist, according to Judge Ronald Reinstein, chief presiding judge of Maricopa County Superior Court.
If Harrison hadn't spent $11,000 and prepared a thorough defense of his role in court, would Menees have been able to get the "prior bad acts" thrown out before his trial, as Menees had demanded? That would have pitted Menees against a lone victim --a child--and according to both prosecutors and defense attorneys, juries are loathe to convict in cases like that.
The board took nearly two years rehashing the issue before it dismissed the charges against Harrison last April, after a grueling two-day hearing.
Dr. Steven Gray, who works out of Tucson and Tempe, wasn't as lucky. The board placed him on probation in December after Michael Trollope, convicted of kidnapping and child molestation, filed a complaint charging Gray had not interviewed him.
Gray, who was not allowed access to Trollope, relied on numerous police reports alleging Trollope's abuse and molestation of children dating back to 1967. The board claimed Gray had "exceeded the data" when he concluded Trollope was dangerous.
"The board sided with a guy who grabbed an 8-year-old girl off her bike and raped her at knife-point," says an exasperated Lori Scott, supervisor of the sex offenders unit of the Maricopa County Adult Probation Department.
Gray says he's saddened the board's actions have made the courts go softer on child offenders. "Most people don't know anything about what goes on in court," he says. "You have to go every day for a long time to get a sense of how crazy it is. I watched A 5-year-old girl get hammered on the stand for four hours by a defense attorney. After that, she just crumbled and the jury found the guy not guilty, and there's no doubt he had molested her."
IS IT ANY wonder then that the state's leading experts on sexual predators are refusing prosecutors' requests to evaluate an offender's propensity? It may be that child molesters themselves, with the help of some defense attorneys and psychologists, will have the most influence on the way future cases are handled.
"It's unfair and unethical that this is happening at the behest of the defense bar and defendants with money," says Kathleen Mayer, supervising attorney for the sex crimes unit of the Pima County Attorney's Office. She adds, "Because we can't get the psychologists to do propensity, we've offered pleas to reduced charges that we never would have done before, and there's a good number of cases we haven't even filed."
Tucson's Dr. Todd Flynn has backed off: "Of course it's had an effect. Who wants to lose their license?"
Dr. Richard Hinton has also shied away. Rick Green, a deputy Pima County attorney in the sex crimes unit, recalls, "I had a case in which Dr. Hinton was doing an emotional propensity evaluation, but he backed out because of what was happening with the board. It was a child molestation case. We had three victims. Two were molested in '83 and one in '86. Without the propensity evaluation we couldn't keep the cases together, so they were severed.
"We ended up offering a plea to reduced charges. There's only a couple people in Pima County skilled at propensity evaluations, and you can't blame them for backing out because they could lose everything. It's sad."
These days, Harrison works only with victims, and Gray refuses to work with offenders who minimize or deny their offenses--the most dangerous ones.
"There are cases that I haven't even filed because I can't get the emotional propensity," says an angered Cindi Nannetti, supervisor of the sex crimes bureau for the Maricopa County Attorney's Office. "In other cases, we've offered pleas that we never would have offered before."
JoAnn Garcia, a deputy Maricopa County prosecutor, agrees: "Juries just don't want to believe such things can happen to a child, especially when the guy sitting at the defense table looks so normal. They want physical evidence and many times there are no tears or lacerations. I just had a case where a child said her grandfather repeatedly fondled her genital area. The mother of the child admits he did it to her, too, and grandpa admits he did it to his daughter, but denies he did it to the granddaughter. So I have a confession, but not to that particular case. We can't get emotional propensity anymore because the psychologists are apprehensive. So grandpa's still out there doing whatever he likes. It's sickening."
Sue Eazer, a deputy Pima County attorney formerly with the sex crimes unit, claims, "It put us at a standstill. Our courts are stymied. In the last five to 10 years, prosecutors and courts have relied heavily on the emotional propensity exception. So if we try to bring in prior bad acts to prove there's a pattern, without having an expert witness, the judges deny it."
Adds Pima County's Rick Green: "Judges could do the job of determining emotional propensity, but they wanted an expert to do it. They pushed it off on the psychologists, who ended up getting attacked by their own profession."
The law says an expert witness--a psychologist with a doctorate, or a psychiatrist--can provide testimony that the defendant has a continuous emotional propensity for sexually aberrant behavior. This testimony occurs in a hearing before a judge--a very significant hearing the jury never sees. The judge weighs the testimony against that provided by a rebuttal witness for the defense, and makes a decision on whether to allow the information before the jury. If the judge allows it, then prior victims can testify, which makes for a very high conviction rate, according to prosecutors.
"Propensity" is well entrenched in Arizona case law, explains Harrison, "but within the last 10 years, the research behind it came into its own. The formerly sparse medical literature on persistent sexual deviancy, termed 'paraphilias,' burgeoned, and the 'soft science' of psychology expanded to accommodate its new, objective, consistently verifiable specialty.
"During the '80s there was an extraordinary amount of research done on sex offenders, which completely changed the way we view them," Harrison adds. "Traditional therapy relies on self-report, where the person tells you about his problem. But sex-offenders are the most unreliable with regard to self-report. Seventy-five percent either withhold information or deliberately lie. It's the nature of the problem."
To get around that, researchers began using sophisticated polygraphs and even an instrument--the penile plethysmograph--that is attached to the penis to measure arousal in response to certain cues. The plethysmograph has caused intense controversy, but experts say the data are reliable.
Thus psychologists and psychiatrists could better categorize sex offenders, and a respected methodology emerged. "Paraphiliac behavior is a true specialty," Harrison points out. "It's only recently that there's been formal university training in paraphiliac behavior. The training I got back when I was a doctoral student was all wrong!"
Harrison landed contracts with Child Protective Services, the Department of Corrections and Interagency Councils. Hundreds of sex offenders moved through these programs, and he says he quickly grasped that the newer theories were more accurate. The research behind the newer theories was unarguably scientific, yet the findings made blessed common sense.
"You have to keep up," he cautions. "New data comes in steadily. I've made mistakes. Years ago, I had to explain to an 8-year-old girl why she was re-molested, because I'd thought the offender could manage his problem with all the help the county provides. I wouldn't make that mistake now with all this new data, but I never want to be in that position again."
Harrison's spacious Scottsdale office is filled with disturbing case files and scholarly articles on paraphiliac disorders.
"You don't realize what it's like to sit in this room with that kind of pathology every day. You get so used to it that when you think you're so shocked by what an offender tells you he's done and there can't be anything worse, just as soon as you think that, something worse comes in. One guy admitted he started molesting his infant daughter the day she came home from the hospital after birth. These are people whose sense of personal significance is attained through the abuse and exploitation of others. Yet it was important to distinguish between those who could be helped and those who are too dangerous and can't be treated."
Experts like doctors Harrison, Steven Gray, Tom Selby, Richard Hinton and Todd Flynn used the new technology and helped the courts make that determination. They proved to be formidable adversaries in court.
THE IDEA FOR the backlash may have germinated in the summer of 1993, when the National Trial Lawyers Association met at the Stardust Hotel in Las Vegas. A hot topic was "Defending Sex Offenders in the '90s." Some defense lawyers proposed the most effective strategy would be to file ethical complaints against the prosecution experts. Tie up their time, their money, and threaten them with the loss of their license to practice.
Camille Bibles, chief deputy county attorney for Coconino County, attended the Las Vegas convention. "There was definitely a faction that believes child molestation is not wrong. One speaker went so far as to say you must remember that pedophiles love children, even if in a strange way. There were also psychologists who have that leaning. The well-known Dr. Ralph Underwager, who reportedly receives $15,000 daily when testifying for the defense, and Dr. Hollida Wakefield, spoke like advocates for pedophiles. They do work for a frightening group called VOCAL, or Victims of Child Abuse Legislation."
Bibles says a common but grim joke among prosecutors in child-crime units goes like this: "How many members of VOCAL claim they've been unjustly accused of child abuse or molestation? The answer--100 percent."
VOCAL, which recently moved its headquarters from Sacramento to Tucson, is highly organized and will host a national convention at the Embassy Suites Hotel here on September 8, 9 and 10. It publishes a newsletter, which once cautioned readers not to allow Harrison's participation in their cases.
Recalls Harrison, "They would publish things like how to circumvent the CPS psychologist. It was probably started by people who had been unjustly accused, but it's become a haven for child molesters and a sanctuary for sociopaths."
Around the time of the Las Vegas convention, psychologists saw a shift in the rebuttal testimony. According to Harrison, "They were laying the groundwork for those ethical complaints. The defense experts, like Dr. John DeBaucho in the Menees case, would say, 'I have no opinion about the propensity, but what I think Harrison is doing is unethical and unprofessional.' In one specific case, he said that and, I mean, this defendant had dozens of victims over a long span of time. How do you overlook the obvious?"
Rick Green says it's an aberration that child molesters could use the board that oversees the state's psychologists to thwart the prosecution of child offenders. "It says more about the board than anything," he observes.
It's far from clear why the Board of Psychological Examiners acted as it did. Executive Director Maxine MacCarthy didn't return The Weekly's calls.
Tucson psychiatrist Dr. John LaWahl might be right when he pondered the board's actions: "Psychologists--they're a weird lot."
The VOCAL Opposition
By Karen Brandel
GEORGE WIMBERLY, WHO founded VOCAL, or Victims of Child Abuse Legislation, 11 years ago, just moved to Tucson and brought with him the VOCAL headquarters.
The organization, with roughly 57,000 members nationwide, has a nine-member board of directors, and Wimberly admits that even some directors have had hidden agendas. He had to ask one board member to step down when rumors about him were confirmed--the man had plea-bargained to a misdemeanor after he locked his child in a dog cage. Now Wimberly does background checks. "Our members have to be clean," he says.
He knows his work is controversial--he specializes in doing research for attorneys with clients accused of child-related sex offenses. VOCAL, a tax-exempt, non-profit corporation, provides free referrals to expert witnesses, attorneys, investigators and mental health professionals.
Wimberly founded the corporation after a wrenching personal experience with the courts. Eighteen years ago, his ex-wife accused him of molesting their daughter during a custody battle. Eventually he won custody, although his ex took their daughter and vanished. When his daughter telephoned him in Sacramento two years ago, Wimberly called the local media, and their reunion was televised.
He strongly disagrees that courts are soft on child offenders. "The whole thing is skewed toward the prosecution," he says. "Defendants are at risk of losing all their constitutional rights."
Wimberly claims Arizona is lagging behind when it comes to legislation involving child abuse and molestation cases. Eight years ago, VOCAL successfully lobbied the California Legislature to limit interviews with alleged victims to a maximum of four. "California listened, and Arizona does not," he laments.
He plans to work hard with the Arizona Legislature. "These child protection advocates are wrong. They're zealots. They say if they err, it should be on the side of the child, but there shouldn't be errors. Putting a child into therapy for abuse when there hasn't been any is very dangerous."
Wimberly points out that Child Protective Services or social workers will be the first to interview a child, and he claims these contacts "contaminate" the case. He's upset that social workers have what he calls blanket immunity and says they essentially work as extensions of the court.
But according to Joyce Lingel, with the Tucson Police Department's newly formed SORT Unit (Sex Offenders Registration Tracking), "Many of the CPS workers are as adequately trained as detectives. If it's a criminal situation, law enforcement gets involved; if it's a civil situation, CPS gets involved. And there are specific protocols, but they work hand in hand."
Wimberly also claims prosecutors have done away with good old-fashioned investigation: "For prosecutors, the objective is to win. They're more interested in validating complaints than in investigating them."
As far as psychologists, psychiatrists and expert testimony is concerned, Wimberly would rather get rid of the "psychobabble," and he's quick to point out that if the prosecution can't use expert testimony, neither should the defense. "You have to remember there are unlimited funds for the prosecution, so they've dictated the strategy. Dr. Richard Gardener, a forensic psychiatrist who frequently testifies for the defense, makes phenomenal amounts of money--$30-$50,000 for 50 hours of work is just incredible. But we have to have an expert to disprove these crazy theories and syndromes that prosecution experts bring out."
What Wimberly wants is a limit to the number of interviews with an alleged victim, and he wants trained people doing those interviews.
"The initial interview is paramount," he says. "I want the defense attorney, the prosecutor and the investigating officer to observe an expert interviewing the child. There wouldn't be as many wrongful prosecutions."
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