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Did Your Father Touch You?
January 4, 2014 9:42 AM   Subscribe


 
That Mancinelli was lying to him to coax a confession, a common police tactic, never crossed his mind.
"Thank God for the Fifth Amendment."
posted by the man of twists and turns at 10:07 AM on January 4 [2 favorites]


And that's just one more example of why you shouldn't have elected judges and prosecutors, nor jury trials. The chance of this sort of wrongful conviction is so much smaller when you have a professional law system not skewed by the pressure to be elected or give in to public sentiments.
posted by MartinWisse at 10:17 AM on January 4 [12 favorites]


While it's hard to tell just from the allegations in the article whether or not he was really innocent, the article does identify an important truth. The standard of proof in child molestation cases is significantly eroded. No juror (or other finder-of-fact) wants to be the one to let a child molester go free, so convictions often come with little evidence other than the testimony of a child-accuser.

It's a hard situation because of the severity of the crime and our belief (right or wrong I have no idea) that child molesters will always do it again.

On the other hand, I personally still believe that it is better that a guilty person should go free than an innocent person should be jailed, which I understand to be where we get the notion of "innocent until proven guilty." Those accused of a sexual assault on a child, however, may never have that protection due to the gravity we as a society place on the crime. After all, killing may sometimes be justified; sexually abusing a child will never be.
posted by LBJustice at 10:20 AM on January 4 [6 favorites]


Maybe NY should elect engineers too. The most popular person should definitely build bridges, not the most competent.
posted by sety at 10:20 AM on January 4 [9 favorites]


I didn't know that elections favor the most competent.
posted by monospace at 10:24 AM on January 4


it didn’t occur to him to stop talking and ask for a lawyer.

Why does he have to ask for a lawyer? They should be required to give him a lawyer before they are allowed to start asking him questions.
posted by pracowity at 10:29 AM on January 4 [12 favorites]


Judges and prosecutors who are appointed rather than elected are not necessarily so pure - they owe allegiance as well, just to fewer people. The most competent person may well not be appointed because of political calculus.
posted by rtha at 10:44 AM on January 4 [9 favorites]


Absolutely, the appointing body rarely has pure motives for whom it puts on the bench. Judges in Chicago are quasi-appointed; they are named as the D candidate by committee, after which election is pro-forma and retention virtually guaranteed. It's the worst of both worlds. Relevant TAL episode.
posted by a robot made out of meat at 10:53 AM on January 4 [4 favorites]


The standard of proof in child molestation cases is significantly eroded.

We went through a very, very long period where children's testimony about abuse was silenced or dismissed. We are right to be inclined to believe them when they speak out.

This case is a good argument that if we are going to keep the burden of proof low we should make the bar for appeals low as well. Just as we should believe child victims when they speak out we should believe them if they recant.
posted by justsomebodythatyouusedtoknow at 11:05 AM on January 4 [8 favorites]


We went through a very, very long period where children's testimony about abuse was silenced or dismissed. We are right to be inclined to believe them when they speak out.

There's a standard for "believing" someone, and there's a standard for taking away a human's liberty for 40 years, and the latter is supposed to be extraordinarily high. That we have confused these two as a society is very disturbing.
posted by dsfan at 11:08 AM on January 4 [22 favorites]


And that's just one more example of why you shouldn't have elected judges and prosecutors, nor jury trials. The chance of this sort of wrongful conviction is so much smaller when you have a professional law system not skewed by the pressure to be elected or give in to public sentiments.

That magic wand does not exist. It does not matter whether officials are elected by citizens or are elected by an elite -- a system is only as good as the people in it and then only if citizens are actively vigilant. You can have a million rules and still have a broken system -- but you can also do things by handshake and it can work functionally.

But people want simplistic solutions and then saddle responsibility on to that group of people called "someone else" -- a system is as viable as the people who run it and a competent person can make even the weakest of systems work...
posted by Alexandra Kitty at 11:12 AM on January 4 [5 favorites]


NY Mag on the fallout of false testimony that sends an innocent parent to jail what neglected children of drug-addicted parents will do to find attention and approval.
posted by hippybear at 11:12 AM on January 4 [6 favorites]


The child did not "speak out" she was coached by her unstable, abusive and violent mother via leading questions.

Big difference.
posted by hobo gitano de queretaro at 11:12 AM on January 4 [4 favorites]


I believe that MartinWisse is speaking of the system for selecting professional judges that exists in many countries, and not the laughable system of political appointments that many places in the USA use to appoint judges. In most countries judges are professional judges; they are not lawyers who hung around kissing the right butts for long enough.

In countries that use such a system, people follow a parallel legal education track specifically designated for judges, attaining an advanced degree in (essentially) being a judge. If they successfully complete their education, practical training, and other testing or background requirements, they are entered into a roll for the selection of judges similar to that used for selecting other civil servants. While it would be silly to claim that no tampering exists, the system is bureaucratized and is significantly less prone to tampering than the way Americans do it.
posted by 1adam12 at 11:20 AM on January 4 [25 favorites]


We went through a very, very long period where children's testimony about abuse was silenced or dismissed.

And then we went through an excruciating period where children's testimony was coerced by their parents and investigators, received rapt credulity by the lower courts, and put innocent educators and caregivers in jail. After which, as those verdicts were overturned, we learned better than to uncritically "believe child victims when they speak out" – but this 1998 case was tried in the interim.
posted by nicwolff at 11:32 AM on January 4 [25 favorites]


In countries that use such a system

Not all countries that use such a system. In Canada AFAIK there's no parallel education track; you learn the law, and if you fit the criteria you can submit your name for consideration as a judge. Well, at the provincial level anyway. Federally it's similar I think, and the Supreme Court is purely a political appointment (though candidates must meet certain criteria, including a requirement that 3 judges be from Quebec, due to its different legal structures and well, Quebec).
posted by feckless fecal fear mongering at 11:49 AM on January 4


That was absolutely heart-wrenching to read. I kept waiting for the "When he was finally released in 20--..." part to come.

Somewhere, I have to hope, there is a middle ground between A) Scaring people off from reporting molestation, sexual assault, rape, etc. because it is known that moving forward with such an accusation will guarantee the victim will experience aggressive doubt, public shaming and third-degree interrogations and B) Examples such as this case where an accusation alone is enough to send someone to jail
posted by The Gooch at 12:04 PM on January 4 [1 favorite]


And then we went through an excruciating period where children's testimony was coerced by their parents and investigators

Yes, I'm aware of that. The Satanic panic of that era was particularly bizarre and destructive. We should be on the lookout for cases where children have been coerced or manipulated into giving false testimony. That's why I mentioned the need for increased protection for the falsely accused, particularly making it easy to exonerate people whose accusers have recanted their accusations.

What proof other than their own testimony are child victims supposed to bring forward?
posted by justsomebodythatyouusedtoknow at 12:21 PM on January 4 [1 favorite]


If were going to bring up the Satanic panic, lets not forget to name some names - Janet Reno, specifically. Her appointment to AG is another reason I'm not a fan of Bill Clinton. False allegations of child abuse were also a key ingredient of the the Waco Siege.
posted by el io at 12:44 PM on January 4 [1 favorite]


A lot of this sort of thing could be solved if people who were brought in for questioning by police were provided with an advocate immediately and by default, unless they explicitly rejected the counsel – rather than only if they ask. Make having a lawyer with you when the cops are questioning you an opt-out right, rather than opt-in. We'd have to hire a few more lawyers for the public defender's office to cover the increased demand, but haven't I been hearing that there's a huge glut of lawyers right now?

An ordinary citizen (without a lawyer) being questioned by a police interrogator is at a huge disadvantage. Here are some bullet points I can think of off the top of my head:
  • Police interrogators are professionals and know lots of tricks that the ordinary citizen doesn't.
  • The ordinary citizen is (intentionally) off-balance and nervous, while the police interrogator is in control.
  • The ordinary citizen is probably being kept away from the normal routine and responsibilities of their life and therefore may be inclined to say whatever they think will get them out of there, while the police interrogator is just having another day at the office and has all the time in the world.
  • The ordinary citizen is generally alone, while the police interrogator generally has a partner working with her or him.
  • The ordinary citizen has no access to outside assistance, while the police interrogator has access to all the resources of his or her department.
  • The ordinary citizen doesn't know what the rules of the situation are, and probably has some misconceptions in that regard. The police interrogator knows all the rules, including the consequences (and the likelihood of consequences) for bending or breaking them.
  • Relatedly, the ordinary citizen is not allowed to lie under questioning. The police interrogator, in many circumstances, is allowed to lie.
  • Nothing that the ordinary citizen says in the context of an interrogation, even if in ordinary life it would allay suspicion, is likely to be used in his or her defense – that is to say, nothing that she or he says is likely to be helpful to him/her in the event that the investigation continues. However, anything that is said will be harmful to her/him if the police interrogator thinks that it can be used in that way.
That's a lot of disadvantage there, and I'm sure other people can think of other ones. Let's assume for the moment that we want the police to be able to do their jobs, to be able to investigate suspicious people and build cases against the perpetrators of crimes. (I realize that this is not a universally-held position here, and to some degree I go back and forth on the issue myself, but I think I'm safe in saying that it's the mainstream view in society so let's go with it.) Let's accept for now that part of that job necessarily requires questioning people who are suspected of a crime, or who are suspected of having information that might aid the police in investigating a crime.

Let's also assume that a large percentage of people who are questioned by police are inevitably going to be innocent of the crime that the police are investigating – either because they are only peripherally and non-culpably involved (e.g. the spouse of the perpetrator), or because the police are mistaken in their belief that the the person is the perpetrator (police are human and therefore imperfect), or because the police have several suspects, only one of whom has actually committed the crime but all of whom are being investigated until the police can narrow down their list.

Police, being human, are imperfect. Even setting aside the considerable reservations that many people, including myself, have about the systemic flaws and problems with police and policing as it is practiced in reality, police will be imperfect. Even if we assume a policing system that has significantly less corruption, incompetence, and bad actors than your average large and powerful organization, there is inevitably going to be some of that sort of thing. And even if a police officer is good-hearted, fair-minded, competent at their job, and supported by a basically functional system, they are sometimes going to make mistakes – out of stress, out of emotion, out of a very human over-reliance on their intuition, out of a confusion of evidence, and just through the sheer random workings of chance over a large enough set of repetitions.

If you accept that, why would you want to set up a dynamic where the police interrogator has all the options, all the resources, all the knowledge, all the time, all the training, all the tricks, and where the results of the interrogation can only be neutral or detrimental for the person being questioned, but (generally) not positive? Doesn't that seem like a dynamic that permits a great deal of leeway for error on the part of the interrogator, and which would help to ensure that any errors that are made go uncorrected? Doesn't it also seem like a dynamic that would cause a great deal of fear, distrust of police, and emotional trauma on what we are accepting are, a large percentage of the time, perfectly innocent citizens? That's the dynamic that exists today, and I would submit that it exists within a system which, unlike the hypothetical police system that I proposed above, is (to put it mildly) much less than optimal.

Why then should we not try to tip the scales back into balance somewhat? Give people a lawyer right from the start. Have a lawyer or two on call at every station, whose job it is to advocate for ordinary citizens right from the very start of the questioning, until such time as they either explicitly waive their right to counsel or are set up with a permanent lawyer who can guide them through the entire process all the way to the end. We already have a right to counsel in the USA – why should that right not exist until a citizen specifically opts to exercise it?

Let it exist by default, so that citizens who are under questioning can navigate the process on a fairer footing, where there is less opportunity for errors to be made, for rules to be broken, and for mistakes to go uncorrected. Let citizens automatically have someone on their side so that their reaction to police thereafter is less likely to be one of fear and hatred, engendered by memories of isolation and powerlessness in the face of an implacable, near-omnipotent system that seems to want only to grind them down and take away their freedom. It would be better for policing, better for citizens, and better for society.

It seems like a no-brainer to me.
posted by Scientist at 2:20 PM on January 4 [26 favorites]


A lot of this sort of thing could be solved if people who were brought in for questioning by police were provided with an advocate immediately and by default, unless they explicitly rejected the counsel – rather than only if they ask.

Especially since, from what I understand, refusing to speak without council present under the current system makes the police hostile and assume you are guilty and require defense from their questioning. Having a lawyer required would remove this assumption of guilt and level the playing field in a lot of ways, not just the ones Scientist lists.
posted by hippybear at 2:37 PM on January 4 [4 favorites]


The biggest reason to have a lawyer?

A lawyer can present and talk in hypotheticals. You can't without being the legal equivalent of walking through a dense minefield.
posted by Talez at 2:59 PM on January 4 [4 favorites]


Regarding the role of recanted evidence, here is a useful piece from Volokh on a similar case. The judge there points out that over time witnesses (even victims) can easily acquire motivations to change their testimony, like in this case where the consequences of sending dad to prison are pretty severe. It also has a discussion on what "beyond a reasonable doubt" ends up meaning in practice.
posted by a robot made out of meat at 4:04 PM on January 4 [1 favorite]


I have to admit that as a juror I'm not sure where I would go with this case. It's not like the original jurors were unaware that the girl might be coached and/or straight out lying. For some reason they made a decision to believe her and I think I would have to get a feel for what that reason was before I took the word of an obviously conflicted 25 year-old over the word of her 8 year old self.
posted by Tell Me No Lies at 4:52 PM on January 4


It's not enough to just believe her. Thinking that it's probable that he did it, or more likely than not, isn't enough.

Beyond all reasonable doubt is the standard, not "Who is more likely to be telling the truth", even in these terrible types of cases.
posted by dave99 at 7:36 PM on January 4 [2 favorites]


My parents put my younger brother in McMartin Preschool. It was long after he was finished there when the allegations surfaced. It is hard for me to describe how it polarized the community.

Nothing was ever proven, and I do not believe anything untoward ever happened. But saying so aloud might have gotten me assaulted.
posted by Danf at 8:42 PM on January 4 [3 favorites]


And that's just one more example of why you shouldn't have elected judges and prosecutors, nor jury trials. The chance of this sort of wrongful conviction is so much smaller when you have a professional law system not skewed by the pressure to be elected or give in to public sentiments.

As a lawyer who has been in the practice for 33 years, I couldn't disagree more. Jury trials are fundamental to a justice system that has the protection of individual rights as its core purpose.

There are errors and occasional glitches with the current system, but a "professional" court system answerable to only to itself would be an unthinkable horror.

Think Kafka.
posted by mygoditsbob at 8:53 PM on January 4 [2 favorites]


That "unthinkable horror" is the system we have in Australia and the UK, and it works pretty well. Almost all the awful stories about unfair trials seem to come from the USA.
posted by Joe in Australia at 9:19 PM on January 4 [4 favorites]


Almost all the awful stories about unfair trials seem to come from the USA.

We ARE the country which had the Salem Witch Trials... Despite our better intents, I'm rarely surprised with injustice happening in America. I prefer it not to happen, I suspect it doesn't happen the vast majority of the time. But when we decide to fuck up, we do it and dig in our heels.

Interesting, the Salem Witch Trials also involved lying children. Hrmm.
posted by hippybear at 9:28 PM on January 4


The most competent person may well not be appointed because of political calculus.

You are speaking from deep ignorance. In my country, a judge is appointed after a reasonably long and successful career as a barrister or solicitor, essentially via merit. Of course our judges are often too old, too male, too white, and yes of course there are miscarriages of justice, but overwhelmingly they are highly competent and impartial, and owe nobody their allegiance. It's not that complex an arrangement, and it stuns me that the US tends to run a different system.
posted by wilful at 3:39 AM on January 5 [1 favorite]


Oh, as to the story itself, it makes me ill.
posted by wilful at 3:43 AM on January 5


That "unthinkable horror" is the system we have in Australia and the UK, and it works pretty well. Almost all the awful stories about unfair trials seem to come from the USA.

When did the UK and Australia abolish trial by jury?
posted by mygoditsbob at 7:06 AM on January 5


You are speaking from deep ignorance.

Regarding the system in your country, yes, probably, but regarding a system of appointed judges and prosecutors, no, because we also have that in the US. I know how it works here. I apologize if you feel I impugned your nation's system, as that was not my intention.
posted by rtha at 7:50 AM on January 5


That "unthinkable horror" is the system we have in Australia and the UK, and it works pretty well. Almost all the awful stories about unfair trials seem to come from the USA.
Given that a whole mess of people were wrongfully convicted of IRA terrorist crimes by jury-less British courts in the '70s, I wouldn't be so confident about that.
posted by ArbitraryAndCapricious at 9:00 AM on January 5 [2 favorites]


What I don't get about this is that (a) the kid flat out said "he stuck his penis" (or "pee-pee") "in my vagina" (or pee-pee), and then she was proven to have her hymen intact. Basically that her genitalia had not been assaulted at all. Why did this not stop anyone from conviction? Because if I was a juror here, that would have stopped me in my tracks on conviction there.

Though to be fair, the dad lying about being in Vietnam with a Purple Heart probably damned him just as well, what with pissing off the judge.

*sigh*
posted by jenfullmoon at 9:30 AM on January 5 [1 favorite]


My parents put my younger brother in McMartin Preschool... it polarized the community... I do not believe anything untoward ever happened. But saying so aloud might have gotten me assaulted.

I'm still not sure if this is an appropriate thread for a film recommendation but this comment tipped me in favor of suggesting Jagten [The Hunt]. It's tremendous, hard to watch, difficult to digest, measured in its portrayal of accuser and accused, a human and complete film. Of course it stars Mads Mikkelsen.

I'm slightly ashamed that my first thought upon reading of real-life trauma and horror is of film and fiction. Surely some sort of mechanism at work.
posted by Ice Cream Socialist at 9:49 AM on January 5


There are errors and occasional glitches with the current system, but a "professional" court system answerable to only to itself would be an unthinkable horror.

Seems to be working perfectly fine here in Canada.

But then apart from the Supreme Court we don't politicize judges at all. They are civil servants with a special knowledge of law who apply their judgement. So it's not so much 'unthinkable horror' as it is 'hey why don't we keep the judiciary as independent as humanly possible from the legislative branch of government, because actual independence is pretty important.'
posted by feckless fecal fear mongering at 9:56 AM on January 5


jenfullmoon: "What I don't get about this is that (a) the kid flat out said "he stuck his penis" (or "pee-pee") "in my vagina" (or pee-pee), and then she was proven to have her hymen intact. Basically that her genitalia had not been assaulted at all. Why did this not stop anyone from conviction? Because if I was a juror here, that would have stopped me in my tracks on conviction there."

An intact hymen is not a reliable indicator of whether or not a woman (or girl in this case, though I'm trying not to think too hard about that) has had intercourse. Hymens come in lots of different configurations and the tissue has a fair bit of stretch to it. They don't always break the first (or second, or third) time someone inserts an object into the vagina.

There are also lots of ways to touch a female's genitals that would be completely inappropriate between a father and daughter which would not break a hymen – shallow penetration, digital penetration, groping, etc. Even if the father hadn't actually had intercourse with his daughter, it would still be a possibility that he had assaulted her in some other way. The daughter might have been lying about intercourse (which would certainly call the rest of her testimony into question) but that doesn't necessarily mean that no assault happened.

Also, it's quite common for a person to break her hymen without engaging in sex, or even without inserting anything into the vagina at all. Some hymens are tougher than others, and sometimes they'll break just from regular physical activity. If I were ever on a jury and the issue of a broken or intact hymen came up as evidence, I personally would treat it as circumstantial at best. Certainly not the sort of thing that would seal a case for me one way or the other.
posted by Scientist at 10:28 AM on January 5


Regarding the issue of elected vs. appointed judges, I feel like neither system is really very good. While it's possible to point to examples of either system that seem to be working pretty well on the whole, neither is incorruptible by design. In either case, it's quite possible to get judges who do not have an unbiased and impartial take on what "justice" means. Neither system is sufficient to prevent abuse all on its own.

The problem is one of oversight. Aside from an actual appeal and re-trial (which requires a fairly high burden of evidence to happen) judges generally aren't accountable to anyone else in their judgments. If a judge, whether appointed or elected, decides (for example) that they're going to hand out the harshest possible sentences to every young black male who comes through their court because they're a racist who figures that they're all guilty of something and that society is better off without them, chances are they're going to ruin a lot of lives before someone puts a stop to it (if indeed anyone ever does).

If it were up to me, I would have a two-part system to judgments. The first part would be much as it is today, where a judge oversees the entire case, mediates during the proceedings, and sets the sentence. After that, a second, specialized judge would review the record of proceedings and either sign off on it, recommend a modification (at which point it would go to another court for a sort of abbreviated re-trial in which a committee would review the case again and make whatever adjustments to the final judgment they thought appropriate), or declare a re-trial.

If a judge was getting too many modifications or re-trials declared (for a suitably small value of "too many), they would face sanctions. They could be censured, or removed from the bench, or whatever was appropriate.

The point is that whether elected or appointed, trial judges have too much power and too little oversight. There should be an additional check there, to make sure that things aren't going off the rails. As it is, the only check is an appeal to a different/higher court, which is a pretty high bar to clear. If I were in charge, I would put an automatic review process in place which would serve to ensure that nothing too crazy was happening, recommend appeals as necessary, and initiate consequences for judges who through incompetence or personal bias were doing their jobs badly.
posted by Scientist at 10:42 AM on January 5


If I were ever on a jury and the issue of a broken or intact hymen came up as evidence, I personally would treat it as circumstantial at best. Certainly not the sort of thing that would seal a case for me one way or the other.

You probably wouldn't be allowed on a jury because lawyers for one side or another would (correctly!) discern that you were likely to rely on your specialised knowledge rather than the evidence presented to the court. You're right, of course, and your knowledge is pushing you towards caution (which is good) but another juror might rely on his or her experience in a fallacious way and thereby get a wrong result.
posted by Joe in Australia at 3:42 PM on January 5 [1 favorite]


Something that specific seems unlikely to come up in Voir Dire to me, Joe in Australia.

The question of elected/appointed judges or professional/drafted juries strikes me as not really the question at hand here. The biggest factor is the burden of proof and weight that should be given to the uncorroborated testimony of a young child. And, as we see from this thread and others like it, that's not an easy question and one which leads to very serious and thorny issues. You can get bad results out of the system whichever way you go. If you won't convict based solely on uncorroborated testimony from a young child it is unavoidable that some child molesters will go free. If you will convict on those terms it is unavoidable that some innocents will go to jail.
posted by Justinian at 4:24 PM on January 5


"Mr Scientist, your work record says that you're a scientist. Is that correct? OK, you're free to go. And your friend Ms Lawyer? Yeah, she can go too, as well as Vyvyan Teacher."
posted by Joe in Australia at 6:56 PM on January 5 [1 favorite]


Well, I probably also wouldn't be allowed on a jury because I have a (reasonable, given the mountains of relevant research) distrust of confessions and eyewitness reports, and also of police. Plus I believe that jury nullification is a legitimate option for combating unjust laws or the unjust application of laws. I'm a lawyer's nightmare as far as jurors are concerned.

That's neither here nor there, though. All I was trying to say is that the idea that hymens can be used to ascertain whether or not a woman or girl has engaged in (or been forced to engage in) sexual activity is pretty much a myth. That test has such a high rate of both Type I and Type II error that it's basically worthless.

It's certainly not the sort of thing that should be used as a basis for determining guilt or innocence regarding a serious crime, and it kind of pisses me off that that it's even admissible in court. I mean, a phrenologist's assessment wouldn't be permitted as expert testimony, would it? The hymen test is nearly the same level of balderdash, and using it one way or the other strikes me as a disingenuous attempt to sway a jury based on their belief in a popular myth rather than based on genuine evidence. If I were a trial lawyer and my opponent trotted that old chestnut out, I would gleefully crush it and use it to call into question the validity of my opponent's entire case.
posted by Scientist at 7:28 PM on January 5 [1 favorite]


You'd be surprised. I would put very little stock in many types of eyewitness reports, would distrust many types of confessions, and would happily return a Not Guilty verdict for most non-violent drug crimes in protest of the drug laws... and yet both sides seem pleased as punch to get me on their juries. Including on a pretty big murder trial. I can't explain it.

Apparently the fact that I can, like, spell and fill out forms correctly and understand basic English directions puts me at the top of the list here in Los Angeles County.
posted by Justinian at 8:18 PM on January 5


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