Devereaux v. Abbey

KLEINFELD, Circuit Judge,

with whom PREGERSON and WARDLAW, Circuit Judges, join, concurring in part, and dissenting in part:

Use of children to satisfy adults’ sexual cravings is a gravely serious crime, subject to very severe penalties. Manufacturing false evidence and using the criminal law system to ruin the lives of innocent people is also a gravely serious wrong. The more terrible the crime and penalties, the more terrible is the wrong of “framing” someone for it. The seriousness of a crime never justifies manufacturing evidence and convicting the innocent. Our system of justice does not allow for the position taken by the notorious Crusader general, “kill them all, God will know his own.” 1

Wenatchee Washington seems to have been among the many towns engulfed by sexual witchhunts in the 1980’s and 1990’s. Its newly appointed child abuse detective on his first child sex molestation case, together with its much more experienced social workers, and its prosecutors, filed 29,727 charges of child abuse against 43 men and women. At the end of it all, few charges stood up in court except against the government’s own witness, Linda Miller, the woman whose implausible (and, as soon proved, impossible) story of sex orgies lay at the foundation of the charges against many or most of the others. Dev-ereaux eventually was allowed to plead guilty to a minor misdemeanor with no sexual connotation, for spanking a disobedient foster child on the buttocks with an open hand. Many of the others convicted in the Wenatchee sex prosecutions have had their convictions overturned on appeal. The Washington Court of Appeals has appointed a judge to conduct a formal inquiry into what went wrong in its criminal justice system. The affair has been popularly regarded as a Northwestern Salem. 2

I concur in the majority opinion, insofar as it sets out the law to be applied to this *1084 case. I join in its express holdings, that (1) “there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government”; 3 (2) “there is no constitutional due process right to have child witnesses in a child sexual abuse investigation interviewed in a particular manner, or to have the investigation carried out in a particular way”; 4 and (3) Devereaux must show, to avoid summary judgment as to deliberate fabrication, not just that an interviewer disbelieved an initial denial and continued with aggressive questioning, but that the interviewer knew or should have known that the alleged perpetrator was innocent or that the interview techniques were so abusive that the interviewer knew or should have known that they would yield false information. 5 These express holdings necessarily imply an additional holding: these rules of constitutional law apply not only to police, but also to the appellees in this case, who were social workers, and to others who act on behalf of the state. Anyone who acts on behalf of the government should know that a person has a constitutional right not to be “framed.”

I respectfully dissent in part, but my dissent is limited to whether Devereaux’s evidence established a genuine issue of material fact as to three of the four remaining appellants. Devereaux is, in my view, entitled to present his case to a jury as to Carrow, Wood and Alexander, because he has established a genuine issue of fact as to each of their claims for qualified immunity. 6 Devereaux has established a genuine issue of fact as to whether Car-row, Wood, and Alexander could have reasonably believed that their conduct did not violate Devereaux’s constitutional rights. 7 I would therefore reverse the summary judgment against Devereaux as to those three appellees. I join fully in the majority opinion as to Abbey.

Reasonable jurors could conclude from Devereaux’s evidence that Wood, Carrow and Alexander “continued their investigation of Devereaux despite the fact that they knew or should have known Dever-eaux was innocent” and “used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.” 8

The record and briefs are not as clear as we might like, for two reasons. First, the case was focused on Detective Perez through the initial panel decision but he settled while the appeal was pending, leaving only the four social workers as defendants. Second, much of the appellant’s *1085 brief focuses on the incorrect argument that section 1983 liability could be based on the social workers’ violations of state regulations as opposed to the United States Constitution or federal law. Nonetheless, Devereaux has both in the district court and here, provided sufficient argument and evidence to establish a genuine issue of fact as to the section 1983 claims. Our initial inquiry, under Katz, must be whether “the facts alleged show the officer’s conduct violated a constitutional right,” and the facts must be “taken in the light most favorable to the party asserting the injury.” 9 The majority opinion acknowledges that the right at issue was clearly established, but asserts that Dever-eaux has not alleged facts sufficient to put any violation of the right at issue. I respectfully disagree with the majority’s reading of the record, because it violates the requirement that the facts be “taken in the light most favorable to the party asserting the injury.” 10

1. Linda Wood

Reasonable jurors could conclude that Wood “used investigative techniques that were so coercive and abusive that [she] knew or should have known that those techniques would yield false information” 11 and did so in circumstances where a reasonable person would have desisted if concerned about convicting an innocent individual. The new detective on the child sex abuse beat, Perez, had brought in A.S. for questioning. Devereaux himself had previously advised the social workers that this twelve year old girl had acted inappropriately on various occasions, including displaying sexual aggressiveness.

The evidence submitted, taken in a light most favorable to Devereaux, established that Wood knew or should have known that she was likely to be eliciting false accusations of sexual misconduct from A.S. In deposition testimony, AS.’s mental health counselor acknowledged that A.S. “threatened to make a report of sexual abuse against [him] specifically because she, at least in her perception, wasn’t having one of her needs met,” and that she made “numerous” threats of this kind. 12 A.S. later said in an interview that another of the Child Protective Services social workers “would attend the group sex sessions nearly every time,” where “each of the adults would have intercourse with each of the children.” 13 A.S. acknowledged in her statement that she made false rape accusations against Mr. John B. who “worked at Albertson’s and had caught her eating a'doughnut without paying for it.” 14 A reasonable interviewer would have to be very wary indeed of accusations of sexual misconduct by this dangerous girl.

In her interview with Wood and Perez, A.S. initially denied that Devereaux had done anything sexual to her. Perez then left A.S. alone with Wood. 15 A.S. eventually changed her story during this long interview. 16 Devereaux submitted evidence from which a jury could find that A.S. denied any sexual conduct from 5:00 P.M. to 10:00 P.M. 17 But after six hours of interrogation, A.S. changed her story, a change *1086 which A.S. said was “so she could get out of the office” 18 because she “got sick and tired of sitting there.” 19 After that, her stories got increasingly lurid, expanding to nightly orgies with Devereaux and numerous other men, women and children. 20

On summary judgment, the respondent is entitled to have the evidence evaluated and reasonable inferences drawn in his favor. 21 Although a jury could find in Wood’s favor, it could also, on this evidence, find against her. A jury could infer that Wood and Perez held this child against her will until after six hours of confinement, fairly late at night, she told the story they wanted. The jury could infer that Wood knew the story was false because it took so long to extract, because A.S. had a history of threatening and making false sexual accusations, and because the means of extracting it were reasonably calculated to produce a false accusation. Holding a child captive and alone in a police station, and drenching her with sex talk until a late hour likely to be past her bedtime, until she says what the interrogators want, has a strongly coercive element. If someone were to force a twelve year old girl to watch pornographic movies for six hours and told her she could stop watching only if she accused a man she knew of a crime, that might be the kind of coercive pressure that could make a girl lie in order to escape. Making a twelve year old girl talk about sex in the police station for many hours could be comparable (or worse, because of its personal aspect). A jury could infer that, combined with A.S.’s known tendency to make false sexual accusations, this was a technique that Wood knew was likely to produce a false accusation.

The majority finds fault with my analysis on two grounds, that A.S. might only have threatened to make false accusations and not actually have done so, and that Wood, the social worker obtaining and using A.S.’s accusations, might not have known about A.S.’s proclivity for these kinds of lies. I see little significance to the majority’s contention that A.S. had threatened to make false charges, and not actually done so. By her own admissions, A.S. did in fact make false sex accusations and not just threaten them. As for whether Wood knew that A.S. was inclined to make false sex charges, the record allows for a jury inference either way. Dever-eaux is entitled to have the evidence taken in the light most favorable to him, and that is decisive. 22 Devereaux’s own prior reports of inappropriate sexual aggressiveness by A.S. were made to Wood’s office, which would suggest an inference that the girl had sexual problems and that Dever-eaux was not trying to keep the girl’s sexual activity secret. A counselor in Wood’s office knew of A.S.’s numerous threats to make false sex accusations to get things she wanted. A.S. had made an allegation against someone in Wood’s own office. 23 A jury would be permitted to infer that she would know of A.S.’s history with other individuals in her own Child Protective Services office in the little town of Wenatchee. Wood has not denied that she knew of AS.’s history. 24

The majority opinion seems to suggest that if Wood does not get the benefit of *1087 qualified immunity, then it would be denied “any time an interviewer discounts an initial denial and continues with aggressive questioning that produces an accusation.” 25 This ignores the length and time of the interview, the coercive technique, and the history of the person being interviewed. It is one thing to follow up on a denial with further questioning. Getting A.S. alone with a female interviewer after her initial denial to Perez and Wood together might have been entirely reasonable, had that been all there was. It is quite another to use a coercive method of questioning — five hours of isolation of a child while drenching her in sexual conversation — to obtain an accusation by a person known to threaten and make false sex accusations.

2. Carrow

Carrow participated in about fifty interviews. 26 A jury could infer from the depositions of girls interviewed that Car-row’s method was to harangue the girls as liars until they accused Devereaux of sexual misconduct. In D.E.’s first interview, D.E. said Devereaux “treated her fine.” 27 But a jury could infer from the evidence that Carrow later prevented this exonerating remark from being disclosed to Devereaux’s attorney and lied about it under oath. 28 A jury could infer from the remark, and from Carrow’s subsequent dishonest non-disclosure, that she knew Devereaux was innocent and covered up exonerating evidence.

With another girl, A.R., Carrow and Perez interviewed her together. 29 A.R. had initially accused Devereaux of sexual abuse, but recanted the next day. 30 A.R. was quite an interview subject. The way the police became involved with Devereaux in the first place was when he called them to report that A.R. had attempted to poison another girl at his house, A.S., and also Devereaux himself, by putting iodine in their soft drinks. 31 Perez had initially interviewed A.R., but asked nothing about her attempt to poison A.S. and Devereaux; Perez’s only interest was sex. Both Perez and Carrow knew that A.R. was a victim of fetal alcohol syndrome, a brain disorder of children impaired in útero by maternal alcohol consumption, some characteristics of which are “inappropriate social behavior, memory deficits ... lack of judgment, lack of remorse for misbehavior, lying, ... unusual aggressiveness, and wide variations in learning abilities at different times.” 32 The police report about the interview states that A.R. “suffers from fetal alcohol syndrome and has difficulty in remembering some events.” 33

A jury could infer that Carrow had reason to know that A.R.’s accusation of Dev-ereaux was false because she had recanted, was mentally impaired, and because the accusation had been forced out of her. When she recanted, Perez threatened her *1088 with prosecution for false reporting if she stuck to her recantation, yet she stuck to it. 34 A jury could infer that Carrow knew she must be telling the truth, because so vulnerable a girl was resisting such great pressure to give the detective and social worker what they wanted. The girl said to Perez “you make all the children lie,” 35 from which the jury could infer that Car-row, who was there when A.R. said this, knew that Perez was making all the children lie. The majority suggests that the proper inference to be drawn from this statement is that Carrow merely “discounted a witness’s statement and pressed on.” 36 That is one inference that a jury could draw, but not the most obvious one, and not the only one they could draw. As for the majority’s suggestion that “we do not even have any evidence that Carrow approved use of the technique” 37 of threatening the girls to force accusations out of them, of course we do — she was present and acting in concert with Perez and she was silent when he made the threats. 38 A.R. told another of the social workers and Perez that Carrow lied to her, by telling her that Devereaux had been “found” guilty and that a semen sample had been found, 39 from which a jury could infer that Carrow knew Devereaux was innocent and was intentionally misleading a non-victim to make her testify falsely that she was a victim.

The majority opinion correctly notes that A.R., despite all the pressure, continued to maintain that her original accusation had been false and that Devereaux did not engage in any sexual misconduct with her. 40 A jury might nonetheless regard this evidence as material, on the theory that it showed that Carrow had probably used similarly coercive techniques to extract accusations she knew were false from other girls. Carrow participated in many interviews of girls who made accusations and did not recant, so her modus operandi was material to whether she was knowingly coercing production of false testimony, even if that modus operandi did not work with A.R. The majority opinion says “all we know is that on one occasion Carrow was present when someone else used threats,” discounting the possibility of a “modus operandi” inference. 41 But with another interviewee who consistently maintained that Devereaux had not sexually molested her or anyone else in the home, Carrow showed the same pattern, simply refusing to take no as an answer. 42 Moreover, juries are generally allowed to hear evidence of conduct, even conduct not directly at issue as this was, to support an inference of similar conduct on other occasions. 43

Again, a jury could find in Carrow’s favor. It could interpret the evidence to be that Carrow had a good faith belief that Devereaux was guilty, and that any girl who denied it was lying, and ought reasonably to be questioned again and again until she found the “courage” to “tell the truth.” But a jury would not have to interpret the *1089 evidence that way. A jury could also find that Carrow had every reason to think Devereaux was innocent, yet refused to accept this, and used all the coercion she could muster — lies to the girls, repeated interrogations, dragging them to the police station, threats of prosecution if they recanted any accusatory statements — to make them lie, and that she succeeded with some of them.

3. Alexander

Alexander together with Detective Perez repeatedly interviewed C.M. 44 C.M. told lurid stories of sexual ceremonies conducted by her pastor at church and sex orgies with numerous male and female adults and children. She also stated that she had participated over twenty times in sex orgies at Devereaux’s house where he and other men, all wearing sunglasses so that they could not be identified, had sexual intercourse with her as well as other girls. 45 The bizarre nature of C.M.’s account is highlighted by her flat statement that a woman who had lived with her family was “a witch” and “I think she cast a spell on my brothers and sisters.” 46

After Alexander and Perez interviewed C.M. the first time, Alexander sent her to a physician for an examination. The examining physician reported that although she had had a tear in her hymen, indicating some penetration, it was healed, leaving a vaginal orifice with a diameter of six to seven millimeters (a little over a quarter of an inch). 47 This tear was consistent with sexual abuse, but not with frequent and repeated full penetration by numerous adult men. The physician sent the report to Alexander. 48 After receiving it, Alexander together with Perez conducted a second interview of C.M. 49 During this second interview, Alexander and Perez obtained reconfirmation of the story, which they now had to know was false, of the “over twenty times” when Devereaux and other men raped C.M. 50

A jury might give Alexander the benefit of the doubt because C.M.’s interviews are somewhat vague and seem to veer off into fantasy, such as her witchcraft accusation. A jury might understand her to mean that the sexual abuse consisted of digital penetration, which would be consistent with the medical report, rather than repeated and frequent mass rape with full penile penetration, which would not. But a jury could also conclude that, despite having obtained medical verification establishing that C.M. had not been frequently and repeatedly penetrated genitally by numerous adult men, Alexander nevertheless took advantage of C.M.’s childish vulnerability to obtain what Alexander knew to be a false accusation that she had been.

C.M.’s statement in evidence says that Alexander told her that “everything I said was true” and that “my mom confessed to everything I said.” 51 This bolstering of C.M. had to take place at the second interview, when Alexander had to know that the account was false, because Linda Miller’s confession came after the first intern-view. 52 Linda Miller had confessed that she herself sexually abused her children, but that so did many other men and wom *1090 en in the town, in numerous mass orgies at the Pentecostal church and various other locations, lasting most of the night, in which numerous men frequently and repeatedly had full genital sexual intercourse with C.M. and many other girls. The Wenatchee witch hunt may all stem from official acceptance of Linda Miller’s excuse for her own sex crimes, that “everybody does it.” C.M. told substantially the same story. But a jury could reasonably conclude that Alexander knew when she obtained it the second time (after she had obtained the medical report) that C.M.’s story was false, and that her use of C.M.’s mother’s confession to obtain it was likely to elicit a false accusation of Devereaux consistent with C.M.’s mother’s confession.

The majority argues for an inference exonerating Alexander: there was nothing wrong with “truthfully informing a witness about another witness’ corroboration”, and “by taking C.M.’s side, so to speak, she could gain C.M.’s trust and persuade her to describe what sort of abuse had really taken place.” 53 Alexander’s lawyer could make that argument to a jury, but the evidence would lend itself readily to Dev-ereaux’s side of the case. The jury could think that once a girl makes medically impossible claims, and alleges witchcraft and spells, a reasonable interviewer ought to be wary indeed of believing any accusations the girl makes. While a jury could draw the excusing inference the majority suggests, it could also draw a damning one, that continued interrogation of this disturbed girl was not a reasonable means of finding out “what sort of abuse had really taken place.” 54

Conclusion

Witch hunts seem to be something universally regretted in retrospect, yet abetted by the legal system while they proceed. During the 1980’s and 1990’s, many towns in America were convulsed by accusations of mass sexual abuse of children in day care and foster care settings such as Devereaux’s. 55 The accusations have often been replete with physically unlikely or impossible events. The accusations here included a witch casting spells, the child victim of repeated group rape who nevertheless retained her hymen, sex orgies in church, and the ability of numerous middle aged men to stay awake all night, night after night, and perform sexually dozens of times each night. Other day care and foster care mass sex cases have involved witches who flew on broomsticks, sacrificed babies, and bizarre occurrences in tunnels, despite the absence of baby deaths and excavations demonstrating the absence of tunnels. Common sense gets trampled in the rush to affirm fashionable hysterias. The creaky rigidity of our mechanisms for importing common sense into legal disputes sometimes keeps them from working.

After C.M. had claimed that a woman was a “witch” who had “cast a spell on my brothers and sisters,” and a medical report had proved that C.M.’s sex story could not be true, most sensible people would think *1091 of the Salem witch trials, and say to themselves “here we go again.” The Salem witch trials were part of a mania, mostly in Europe but also in Salem, that ruined the lives of thousands of innocents. 56 The witchcraft accusations then, as now, often involved children and sex, such as the common accusation of being made to “submit to many unholy and disgusting ceremonies,” being “forced ... to Mss ... the superior on ... the breech,” 57 roasting babies over fires, 58 and “every species of unmentionable debauchery,” 59 including “sexual intercourse with Satan.” 60 In Salem, those who confessed to witchcraft generally received some leniency, but those who staunchly and truthfully maintained their innocence were hanged, as being what is now called “in denial.” The Salem witch trials, like the modern ones, were based not on lynch mob action, but on formal trials based on expert witnesses’ testimony. The Salem witch hunt began when a physician unable to relieve the apparently hysterical symptoms of a local minister’s daughter, told the father “that the girls “were under the evil hand.’ ” 61 Both in Europe and the American colonies, highly educated people led the mania, instead of restraining it. 62

Our judicial system ought not to be helpless to protect and vindicate the victims of witch hunts. Fortunately the majority opinion today clarifies the law of qualified immunity so that it will not continue to embolden those who manufacture false evidence to abet witch hunts. Unfortunately, it does not apply the law correctly. The fault in the majority opinion application of the law is that it overlooks the requirement that the evidence must be “taken in the light most favorable to the party asserting the injury.” 63 As to the three remaining defendants with respect to whom we disagree, a jury could, on the evidence in the record before us, draw inferences either way. Devereaux is entitled, therefore, to get his case to a jury.

The doctrine of qualified immunity is useful when it enables government officials to do their duty with vigor, unafraid of enmeshment in lawsuits about new, doubtful or unclear constitutional claims they had no reason to know about. The doctrine would be harmful rather than useful if it protected government officials who deprived people of such fundamental and well known constitutional rights as the right not to have government officials manufacture false evidence against them. The vulnerability of government officials to lawsuits if they intentionally deprive people of their plain constitutional rights is an important deterrent to official abuse of individual rights. This is true regardless of whether they work in the police department or some other department. Nor can officials be immunized because they act with good underlying motives, such as to protect children from sexual exploitation. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understand *1092 ing.” 64

. Albigensian Crusade, (visited May 31, 2001) http://crusades. boisestate.edu/Albi/.

. See Dorothy Rabinowitz, Reckoning in Wen-atchee, The Wall Street Journal, September 21, 1999. "The 1994-95 child sex abuse witch-hunt in Wenatchee, Wash., resulted in a massive frame-up.” Paul Craig Roberts, Saved by Pursuit of the Truth, The Washington Times, April 6, 2000; see also, Mike Barber, Wenatchee Haunted By Investigations, Seattle Post-Intelligencer, September 10, 1999. Whitman County Superior Court Judge Friel stated that "no rational trier of fact would believe these allegations.” Rabinowitz, Reckoning in Wenatchee, The Wall Street Journal, September 21, 1999.

. Maj. Op. at 1074. Judge Fernandez's separate concurrence raises the question whether creation of false evidence, by itself, violates any constitutional right, even if there is no criminal proceeding based on it. Concurrence at 1082. We need not answer that question in this case, because the evidence did lead to a criminal proceeding. Devereaux was arrested and put in jail, See Doc. 27 Ex. 1; Doc. 50 Ex. A, formally charged with rape of a child and other crimes, See Doc. 49 Ex. F, and subjected to bail conditions on his release for an extended period. See Doc. 27 Ex. 4.

. Maj. Op. at 1075.

. Maj. Op. at 1076.

. See Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1038-39 (9th Cir.1996) (holding that when foundational facts regarding a qualified immunity claim remain in dispute, these facts must be decided by the jury); Act Up!/Portland v. Bagley, 988 F.2d, 868, 873 (9th Cir.1993) ("If a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial.”).

. See Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 2158, 150 L.Ed.2d 272 (2001).

. Maj. Op. at 1076.

. Katz, 121 S.Ct. at 2156.

. Id.

. Maj. Op. at 1076.

. Doc. 36 Ex. Z, p. 77.

. Doc. 144 Ex. E p. 4.

. Doc. 144 Ex. E. p. 8.

. Doc. 36 Ex. El p. 8-9.

. Doc. 36 Ex. El p. 8-9.

. Doc. 144 Ex. E p. 6.

. Doc. 144 Ex E p. 6.

. Doc. 37 p. 2.

. Doc. 144 Ex. E p. 3-5.

. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Orsini v. O/S SEABROOKE O.N., 247 F.3d 953, 958 (9th Cir.2001).

. See Katz, 121 S.Ct. at 2156.

. Doc. 144 Ex. E p. 4.

. Doc. 33.

. Maj. Op. at 1080.

. Doc. 76 p. 5-6.

. Doc. 36 Ex. N p. 1; Doc. 88 Ex. B Pippen Dep. p. 81.

. Doc. 36 Lacey Aff. Pg. 7 1. 1-18; Doc. 36 Ex. U, Carrow Dep. p. 129-30.

. Doc. 76 p. 8-9.

. Doc. 36 Ex. Wp. 5.

. Doc. 149 Ex. 1 p. 2.

. Barbara A. Morse, Information Processing: Identifying the Behavior Disorders of Fetal Alcohol Syndrome, in Fantastic Antone Succeeds: Experiences in Educating Children with Fetal Alcohol Syndrome 26-27 (1993, Judith S. Kleinfeld and Siobhan Wescott, editors).

.Doc. 36 Ex. K p.3.

. Doc. 36 Ex. K p. 6; Doc. 76 p. 51-52.

. Doc. 36 Ex. Kp. 4.

. Maj. Op. at 1080.

. Maj. Op. at 1081.

.See 4 Wigmore on Evidence § 1071 (Chad-bourn rev. 1972) (noting silence has traditionally been taken to support an inference of assent to a third party's statement).

. Doc. 36 Ex. Kp. 4.

. Maj. Op. at 1078.

. Maj. Op. at 1081.

. Doc. 77 p. 1-2.

. See Fed.R.Evid. 404(b).

. Doc. 149 Ex. 3; Doc. 149 Ex. 7; Doc. 144 Ex. G.

. Doc. 149 Ex. 3 p. 9.

. Doc. 149 Ex. 7 p. 6.

. Doc. 144 Ex. C p. 4.

. Doc. 144 Ex. C p. 5.

. Doc. 149 Ex. 7.

. Doc. 149 Ex. 7 p. 8.

. Doc. 36 Ex. N1 p.26.

.Doc. 36 Ex. F.

. Maj. Op. at 1081.

. Maj. Op. at 1081.

. See People of the Territory of Guam v. McGravey, 14 F.3d 1344 , 1350 n. 1 (Reinhardt, J. dissenting) ("Simply put, I am aware of no trial since those held in Salem in which a group of adults suggested occurrences similar to those alleged in the McMartin and Akiki cases.”); Dorothy Rabinowitz, The Hate-Crimes Bandwagon, The Wall Street Journal, June 27, 2000 (listing past child abuse hyste-rias based on false allegations); see also Dorothy Rabinowitz, “Finality" for the Amiraults, The Wall Street Journal, June 30, 1999; A Darkness in Massachusetts, The Wall Street Journal, February 15, 1995; Dorothy Rabinowitz, Television, Parents and Children on Trial, The Wall Street Journal, May 6, 1991.

. See Charles M. Mackay, Extraordinary Popular Delusions and the Madness of Crowds 462-564 (Harmony Books 1980) (1852); Katherine W. Richardson, The Salem Witchcraft Trials 4 (1983).

. See Mackay, supra note 40, at 475.

. See id. at 476.

. See id.

. See id. at 481

. Leo Bonfanti, 2 The Witchcraft Hysteria of 1692 3 (1977).

. See generally, Mackay supra note 40; Richardson supra note 40; Bonfanti, supra note 45.

. Katz, 121 S.Ct. at 2156.

. Olmstead v. United States, 277 U.S. 438, 479 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928) (Brandeis, J. dissenting).