Amicus Curiae Brief — Underwager v. Salter

No. 94-314

In the

Supreme Court of the United States

October Term, 1994

RALPH UNDERWAGER and

HOLLIDA WAKEFIELD,

Petitioners,

v.

ANNA SALTER, PATRICIA TOTH, MIMI ROSE,

NATIONAL CENTER FOR

PROSECUTION OF CHILD ABUSE,

AMERICAN PROSECUTOR’S RESEARCH INSTITUTE,

NATIONAL DISTRICT ATTORNEYS’ ASSOCIATION.

CHARLES VAUGHAN AND JAMES PETERS,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF THE

NATIONAL CONGRESS FOR MEN AND CHILDREN, INC.

AS AMICUS CURIAE \N SUPPORT OF PETITIONERS

Travis Ballard

Counsel of Record

415 Mill Road

Adrian, Michigan 49221

(517) 263-7822

Attorney for Amicus Curiae

National Congress for Men and

Children, Inc.

1994 — Bachman Legal Printing @ (612) 339-9518 @ FAX (612) 337-8053

BEST AVAILABLE COPY

No. 94-314

In The

Supreme Court of the United States

October Term, 1994

RALPH UNDERWAGER and

HOLLIDA WAKEFIELD.

Petitioners

VS.

ANNA SALTER, PATRICIA TOTH, MIMI ROSE

NATIONAL CENTER FOR PROSECUTION OF CHILD

ABUSE,

AMERICAN PROSECUTOR’S RESEARCH INSTITUTE,

NATIONAL DISTRICT ATTORNEYS’ ASSOCIATION.

CHARLES VAUGHAN AND JAMES PETERS

Respondents

On Petition for Writ of Certiorari to the

Court of Appeals for the Seventh Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The National Congress for Men and Children. Inc.. an

international group of associations and organizations

concerned with protecting and advancing the rights of men

and children, respectfully hereby moves for leave to file the

attached brief amicus curiae. The attorney for the plaintiffs

has consented. Two attorneys for the respondents have

rejected our request for their permission to file the brief. The

aS cel et eh A ar rr

stated reason for both refusals is identical and is “. . the filing

of an Amicus Curiae brief by you would be primarily for

political purposes and will not bring to the attention of the

Court matters which will not be submitted by the parties.” Mr.

Vaughn refused permission claiming the action was a

frivolous lawsuit.

This brief supports the plaintiffs’ petition for Writ of

Certiorari to the United States Court of Appeals for the

Seventh Circuit. The National Congress for Men and

Children, Inc. has both a long and broad experience of dealing

with litigation at all levels affecting family life, children’s

safety and security, their development, and the appropriate

and effective roles of both men and women in family and

society. We believe this case represents a grave and serious

potential for damage to families, children, men. and women.

The state already has unparalleled power to intervene in

family life and exercises that power more frequently and more

intrusively than ever before in our history. It is true that the

involvement of the state has an ostensible benevolent intent.

Yet it is also true that government may be most feared when it

Is at its most beneficent. If government is to be helpful and

truly supportive of family life, children, and men and women.

there must be some checks and balances as the framers of our

constitution recognized and built into the very fabric of our

Institutions.

We are also very cognizant that family life and the values

of family are in a state of flux and potential change. It is not

an exaggeration to consider the possibility that the traditional

family has broken down and may, indeed, disappear. This

appears dangerous for our nation to many. Our system of

justice also already has the prosecutor firmly established as

the single most powerful individual in Our justice system. The

Pursuit of justice rests most firmly on the character and

M-1

+ OO atin ene ana Saale

personality of our prosecutors and other agents of gov-

ernment. So long as prosecutors are persons of probity,

wisdom, and fairness, we may be confident that citizens will

be dealt with fairly in most instances. Fairness is what

American citizens most want and expect from their justice

system.' Obedience to the law is nurtured and fostered by the

belief in fairness and the actual experience of fairness.

However, in the event the weakness of humanity mani-

fests itself in the person of a prosecutor or agent of

government, there must be checks and balances to offer

opportunity for accountability, control, and redress of inequity

or injustice. If, in this instant case, the decision of the Seventh

Circuit is allowed to stand, it is our fear and belief that one of

the last, if not the last, checks and balances to hold

prosecutors accountable for a proper pursuit of justice, the

requirement to be truthful and fair, will be destroyed. Should

this be the case, the liberties and rights of all citizens are

exposed to the frailty of human character with no shield or

defense.

We do not understand the objection of respondents that

filing this brief is for political purposes and therefore they

would deny us access to the system of justice. To deny

citizens access to the court for this reason appears to be the

same reasoning of King George III to deny the colonies

access to parliament and thus the King’s justice, requiring

obedience without opportunity to speak in opposition. All

appeals to the system of justice of any nation state are in the

final analysis political actions. The District judge rejected the

defendants’s motion to find the suit a frivolous action and

' Tyler, T. R. (1990). Why people obey the law. New Haven: Yale

University Press.

M-ill

cee etn ies

ruled it was not, contrary to Mr. Vaughn's reason for refusing

our request for permission.

For the foregoing reason, the National ( zress for Me

and Children, Inc. respectfully urges the Court to accept and

file the enclosed brief amicus curiae in support of the

petitioners, Ralph Underwager and Hollida Wakefield.

Respectfully submitted,

Travis Ballard

Counsel of Record

415 Mill Rd.

Adrian, MI 4922]

(517) 263-7822

Attorney for Amicus Curiae

National Congress for Men and Children, Inc.

M-iv

Page

WOO BUTI ines cseseccsscviiscecesines ccc. cee. 11

INTEREST OF AMICUS CURTAE oo...-cccceccecceccecc oe. 2

seis oe vescocte esc gh I RATT 2

SUMMARY OF ARGUMENT ou... ccccccccccccecceseececcecccc. 8

eet iees acie RE Se ne 15

I. There is ample case law and precedent es-

tablishing a standard of accuracy, fairness, and

truthfulness in attempting to impeach an

adversary’s expert witnesses and refusal to

permit innuendo or implications of some form of

wrong doing to be used to deny a defendant a

sc cg a RTD a 15

Il. Depriving the defendant of the right to have

qualified experts to assist in presenting the

defendant’s version of the facts denies him or

her due process under the law. ......c.e.e.e.0.0..-.... 19

III. There is sufficient repetition of the pattern of

TABLE OF CONTENTS

improper attacks upon scientists and expert

witnesses by prosecutors, attorneys, and their

allied scholars and interference in the normal

conduct of science to warrant grave concern.

The repeated behavior pattern justifies main-

taining, at the very least, the last possibility for

redress available to a scientist who believes an

unfair attack has been made. That is access to

defamation law and the distinction between

media defendants and non media defendants so

that attorneys and scholars are not given the

protection of the heightened standard of New

York Times of requiring actual malice. .......... 23

Sc PP Oa A TMI sits tilesoda cna cabdasn eailicessokeesbncavmpmaaicadstreswear out 28

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma (470 U. S. 68, 105 S. Ct. 1087, 84.L..Ed. 2d

Se ak a 5

Berger v. United States, 295 U. S. 78 (1935) .....ccccscsceeeeee. 19

Berkowitz, E. et. al. v. Marriott Corporation (1990). No. 163

A.D. 2nd 52. Supreme Court, Appellants Division, First

IIR 5 calsitycetectuncenssusnni coccinea eaemcietieteManitMiatin, 17

Chambers v. Mississippi, 410 U. S. 284, 294, 93, S. Ct.. 1038,

POPE WN cies ds basta ch cers than Seco mca ars actanaeh mi abiaadaasakcgion 21

Clark, R. v. New York City Transit Authority. (1992). No. 580

N.Y.S.2nd (AD. | Dept.). Supreme Court, Appellate

EPUVERIOML, FORE CORT oisas scabies nsisceeiisessxseccnonessens 18

Chapman vy. California, 386 U.S. 18 (1967) .ccccccceeeeeeeeeeees 26

Farmer v. Brennan, 128 Lawyers Edition, 2nd, 811 .......... 14

Giglio v. United States, 405, U. S. 150 (1972) woe 26

il

4

#

eT

Gordon vy. United States, 178 F. 2d. 896, 900. (6th Cir. 1949).

COPE Gem FIO. S. TID. occcaicccnvcossiisevescexsascescss......,. 27

Imbler v. Pachtman (424 U. S. 409 (1976) (at 431. n. 34.). ... 6

Manson v. Braithwaite, 432 U.S. 98, 114, 97. S. Ct. 2243.

ZLIS, DF, LiKE. 2M 140 156 1977 ooncccvrsccecccoscocesceccccces... 7

Michigan v. Tyson (1985). Supreme Court of Michigan,

Docket No. 73774, Calendar No. 25. 377 N.W.2d 738

NS IPE: stieceniesvoceieisaaesdisdsalesivesa cen cecmadsandaiaen 15

Miller v. Pate, 386 U.S. 1 (1967) ........cccccccccccccccccccccccccccce. 26

Moldea v. New York Times Co., 15 F3d 1137 (D. C. Cir.

Sf EER Ne RISD sated tanncidiedvadeaisemiala detec cata 9

Napue v. Illinois, 360 U.S. 264 (1959) vooccccccccccccccecececseees 26

Nowitzke, F. v. State. (1990). N. 71729. Supreme Court of

PN ie tee cas loc seulicaeteshaddueni assstch Secease cbs A cancaovcsinidbiceks 18

People v. Rodriguez, N. Y. L. J., 192:1 August 17, 1984... 18

Powell v. Alabama, 287 U. S. 45, 71 (1932). cocceccecccccscsseseees 5

RALPH UNDERWAGER AND HOLLIDA WAKEFIELD

V. ANNA SALTER, ET AL., No, 93-2422 (7th Cir.

Loch, ee RS IE SER Na AA EARNS PORTA onTTER EE Pee 2

Shemman v. American Steamship Company (1979). Court of

appeals of Michigan, Docket No. 77-2239. Mich.-App.,

280 N.W.2d 852. 15

ill

Sipsas, W. v. State (1986). No. 14927. Supreme Court of

POIs arisicatsncianiaalecninseebehdsneoosses siete denanedttmabdiitesakabinnnits 17

Stamos, P. J., Perlin, J. & Hunter, M. L. v. Sukkar, F.

(1982). N. 482-0054. Appellate court of Illinois, Fourth

Is silivadcosvdcviniiese sesnadionkstderceils siscndidabdtacaneendenintiee 17

State v. Coulter, D. (1992). No. 1-87-3175. Appellate Court of

Illinois First District, First Division. ................0...00c.00-. 17

State v. Danielson, 377 N. W. 2d 606 (Minn. App. 1985) .... 8

State v. Jahnke, 353 N. W. 2d. 606 611 (Minn App. 1984) .. 8

State v. Michaels, 136 N. J. 299 642 Atlantic Reporter, 2nd,

NEF TMIL-silisttiiiaide vesteaiucarssinlieanivababenstinunsenstsaiaitievmectoniinns 6

State v. Rose, T. (1988). No. 112 N.J. 454. Supreme Court of

I SI ishencniccc cbsvcevinniaetescaceddoditsnleaatvuaasutsdeamieooanlees 16

State v. Rosier, H. W. (1988). No. 331A86. Supreme Court of

aR ei cnt gata sce a a a 16

Taormina, C. v. Goodman, S. S. (1978). No. 406 N.Y.S.2nd

350. Supreme Court, Appellate Division, Second

SI Saidisavtasanisiceelcchemamaicuaiad Culsaliamakssciiuoipsbades 16

EFS ase ly Ce Fe ie I aida letaintcdnvinnvwnndoiniestenses 6

United States v. Nixon, 418 U.S. 683, 709, 41 L. Ed. 2d 1039,

Re, SG, BH Ca FE SI Ci vvnvedocdecetctcscccsesdeciae 22

United States v. Nobles, 422 U.S. 226, 230-231, 45 L. Ed. 2d.

541, 149, SZ, BS. Ct. ZIGO, JIGS (49 7a) ccvsnecsces2eccececocent 20

ieee

United States v. Theriault, 440 F. 2d 713 (Sth Cir. 1971) cert.

den. 411 U. S. 984 (1973). 0000000000 ae

United States v. Curant, 545 F. 2d 823, 829 (2nd Cir.

| ENS ee a

U.S.A. v. Stephen Yee, et al. (1991)

Motion for new

trial.

Wright, Federal Practice and Procedure, Criminal 2d. Section

= 7 SY ennai aialiednibevieadisineidenvesnanddisanianbeaibcriaivd a

STATUTES & REGULATIONS

§ 1983, 18, U. S.C. §242 .

OTHER AUTHORITIES

Anderson, C. (1991). DNA fingerprinting discord. Nature,

Appelbaum, P. S. (1987). In the wake of Ake: The ethics of

expert testimony in an advocate’s world. The Bulletin of

the American Academy of Psychiatry and the Law, /5(1),

AE SSA TN cS Oe aes a 5

Augustine, The City of God, 15,16,19.13. ......

Beatty, M. L. (1981). The ability to suppress exculpatory

evidence: Let’s cut off the prosecutor’s hands. Jdaho Law

I, 75 Be ntti nbintenamanioriun 1]

Buckey, P., Buckey, R., Buckey, P. A. (1990). After the

McMartin Trials: Some reflections from the Buckeys.

Presented September, 1990, NASVO Conference, ...... 28

Ceci, S. J., & Bruck, M. (1993). The suggestibility of the

child witness: A historical review and synthesis.

Psychological Bulletin, 113(3), 403-439. ........cccccccceeeee 12

Gallagher, S. G. Personal Communication. June 19,

I i Losussulinscorbaweendnnes cate sen banncpianindicaanee taeaaedomesanevebpee 27

Jonakait, R. N. (1987). The ethical prosecutor’s misconduct.

Criminal Law Bulletin, 23(6), 1987). ......::.ccccccesseeseeees 21

Kalven, H. & Zeisel, H., 1966. The American Jury. Boston,

Be IN feirgo)a2 Foi orc D as eae euvis Gop k auatd intnin einloiaaaoae 26

Kanner, G. (1991, September). Rambo, go home: Of ethics,

tactics, and judges. Trial, pp. 104-106. ....... ee. 21

Kassin, S. M., Ellsworth, P. C., & Smith, V. L. (1989). The

“general acceptance” of psychological research on

eyewitness testimony: A survey of the experts. American

Psychologist, 44(8), 1089-1098. ........cccccseeseececeeeeeeeeeees 12

Kolata, G. (1991, December 20). Critic of DNA tests tells of

pressure to withdraw. New York Times, A16..............4. 24

v1

Lee, D. H. (1992). In the wake of Ake v. Oklahoma: An

indigent criminal defendant’s lack of ex parte access to

expert services. New York University Law Review, 67,

ADOPTS ssloboi sitesi cirabiptinnncneteeen aienbled tee 6

Memorandum in Support of Defendants Toth, Peters, Rose.

the Center, APRI and NDAA’s Motion for Rule 1]

Sanctions. This document was filed with the District Court

which denied the motion for Rule 1! sanctions. The

defendants did not appeal this ruling. Therefore the

document is not part of the Appellate Court file. If this

court wants the document it is available from the District

Ee CRASSA ODN Ra ONT NAL, CSR REN 5 Ai I]

Miller, R. (1985). The harassment of forensic psychiatrists

outside of court. Bulletin of the American Academy of

Psychiatry and the Law, 13(4), 337-343. cecccccccccccccceseee. 27

Rachlin, S. (1988). From impartial expert to adversary in the

wake of ake. Bulletin of the American Academy of

Psychiatry and the Law, 16(1), 25-33. .cccccccccccccccsscceccecees 5

Richardson, J. T. (1994). Dramatic changes in American

expert evidence law: From Frye to Daubert . Annual

Conference of the New South Wales Appeal Court,

Sydney, Australia, April 21, 1994. ooo ccccsceecscesceeees 4

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IM, LO FAN Fe engi cscindtoncsrisintvaddccvstcesveesunccins 24

Saks, M. J. (1989). Prevalence and impact of ethical problems

in forensic science. Journal of Forensic Sciences, 34(3),

RR RS ict edb pen teas ada Susanna Sodudasts onus 26

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& Erickson, J. (1986, August). The role of the psy-

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convention of the American Psychological Association,

WONGIOG, DIK... cccoressssssciccnsceidiainiuoiuiitarmabalaaidibeinaan 20

Underwager, R., & Wakefield, H. (1993). A paradigm shift for

expert witnesses. /ssues in Child Abuse Accusations, 5(3),

SIT. sinstanicitacntinanidleisistevtdmndadassidiassmanisacs amc eine. 4

Wakefield, H., & Underwager, R. (1988). Accusations of

Child Sexual Abuse. Springfield, IL: CC Thomas. ....... 20

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Witness (pp. 138-153). Albany, New York, State

LINSVOESERY OF INU VOTE PIOUS. cccsicsicccctsceibaicosnnscnesaranes 2]

Vill

ke Ae we Fate “ny

No. 94-314

In The

Supreme Court of the United States

October Term, 1994

RALPH UNDERWAGER and

HOLLIDA WAKEFIELD,

Petitioners

VS.

ANNA SALTER, PATRICIA TOTH, MIMI ROSE

NATIONAL CENTER FOR PROSECUTION OF CHILD

ABUSE,

AMERICAN PROSECUTOR’S RESEARCH INSTITUTE,

NATIONAL DISTRICT ATTORNEYS’ ASSOCIATION.

CHARLES VAUGHAN AND JAMES PETERS

Respondents

On Petition for Writ of Certiorari to the

Court of Appeals for the Seventh Circuit

Brief of the

National Congress for Men and Children, Inc.

as Amicus Curiae

in support of Petitioners

Interest of the Amicus Curiae

This amicus curiae brief is submitted by the National

Congress for Men and Children, Inc, a coalition of over 100

organizations which support father’s rights, men’s rights and

divorce reform in North America. The National Congress was

originally formed in 1980 in Houston, TX, and now has

thousands of members in the United States and Canada. It is a

national nonprofit organization working to reduce gender

discrimination in society and family courts. The members are

primarily men, women, and their families who are struggling

to maintain and increase their involvement in their children’s

lives and to remove cultural and legal impediments to such

involvement. The mission of the National Congress for Men

and Children is to serve as a national organization to assist

local and state efforts compatible with the goal of assisting

parents who choose to remain actively involved in their

children’s lives regardless of marital status. We encourage

active parental involvement, including emotional and

financial support by both parents. Moreover, we assert that the

best interest of children demands that custody be eliminated

as an issue in divorce and that the parent child relationship be

severed only by a constitutionally sound proceeding,

requiring clear and convincing evidence of child abuse or

neglect.

Background

The Nature of the Problem

This case of Underwager and Wakefield, Plaintiffs-

Appellants v. Anna Salter, et al., Defendants-Appellees, is not

an ordinary, run-of-the-mill defamation action. It has

implications and potential consequences for the entire system

of justice and could, if permitted to stand as it now is with the

ae Te Pree

3 iad te ei ats eS i

LIS OAR He 6

CC ROI a PE eS IT ch ARE HAE RIOR SD

on Nitsa ed ec.

Seventh Circuit decision, obstruct and impede the intents and

purposes of the U. S. Supreme Court evident in a number of

rulings. We write because we believe, as the Brief of Amici

Curiae of the American Society of Law, Medicine, and

Ethics, et al. in the Daubert v. Merrell Dow Pharmaceuticals,

Inc. declared “*. . .as a general matter. scientist’s ability to be

of assistance to judges and juries in determining a wide range

of issues is threatened by the opinions of the lower courts in

this case (p. 1)”. If the decisions of the lower courts in this

case are allowed to stand, we believe the consequence will be

that scientists will not be willing to assist the justice system

with scientific testimony because of the danger of grievous

harm to reputation, career, and work.

As the Amicus Curiae Brief of the Carnegie Commission

on Science, Technology, and Government in Daubert v. Merrell

Dow stated “Recent developments both in law and science have

conspired to bring increasingly complex scientific issues before

the courts for resolution” (p. 2). Some of the most difficult,

complex, and emotionally demanding issues the courts are

dealing with, in which credible scientific knowledge is often

crucial, involve the relationships between men and women and

children and the state. Family law includes issues of divorce,

domestic violence, custody of children, competence, adoption,

birth control, and abortion. Criminal iaw includes sexual and

physical child abuse, rape, sexual harassment, assault, and the

criminalization of many sexual behaviors. Tort law now

includes claims of sexual harassment and battering as a basis

for overturning contracts and agreements made years before.

Many states have changed statutes of limitations to permit

actions based on claims of recovered repressed memories.

Factual information about these issues that is reliable and

trustworthy is hard to come by and consequently there is a

significant danger that unsupported speculation may fill in the

blanks without anyone being aware of it.

In all of these issues the testimony of scientists or other

experts is often the major portion of the evidence produced by

either adversary. The Federal Rules of Evidence appear to

have had the effect of widening the scope and applicability of

expert opinion and increasing the frequency of the use of

experts in attempting to resolve very thorny and difficult

disputes. The National Congress for Men and Children is

deeply involved in those issues where men and children are

involved in litigation of all sorts and where their rights as

individuals and citizens are at issue. The members of the

National Congress have had much experience dealing with

inept, biased, erroneous, or ill-founded expert testimony in

litigation in the areas of our concern. Therefore, we welcomed

the recent (1993) Daubert v. Merrell Dow decision which

provides guidance to the courts on admissibility of what ts

purported to be scientifically based testimony. We believed

this decision would greatly improve the ability of the courts to

separate what is scientifically sound from what is not when

dealing in the areas of greatest concern to us.

Thus far some 40 cases citing Daubert appear to be

coming down mainly on the side of excluding weak or

inadequately supported testimony from being admitted. It

seems likely that the Daubert decision may well result in what

Richardson (1994) characterized as “. . .a revolution in U. S.

expert evidence law.” and Underwager and Wakefield (1993)

termed a “. . .new paradigm shift for expert testimony.” The

intent of the Supreme Court clearly was to remove any

confusion related to the Federal Rules of Evidence and the

Frye test, which is now supplanted, and assure the availability

to finders of fact of sound and credible scientific information.

The lower court opinions citing Daubert demonstrate a

clear, emerging trend. The courts take their new “gatekeeper”

role assigned by Daubert very seriously. The courts have used

4

Daubert to reject scientifically unsound evidence. While most

of the cases have involved toxic tort and traditional tort cases,

there have been several dealing with the kind of expert

testimony the National Congress for Men and Children is

most concerned about, that is, testimony by mental health

professionals, psychiatrists, psychologists. and social

workers, that is most often found in the cases dealing with the

family, parent, child, and abuse and neglect issues. Testimony

based on weakly supported psychological theories has been

excluded. This has included recognition of suggestibility in

child abuse cases so hypnotically refreshed testimony has

been excluded. The use of post-traumatic stress disorder and

the child abuse accommodation syndrome to buttress, by

inference, claims of prior abuse has also been excluded by a

Daubert analysis. We welcome this development of case law

recognizing the Daubert decision and rejoice in the seriousness

with which the judiciary appears to be addressing its new role

as the gatekeeper for what is admissible as scientific evidence.

Another Supreme Court ruling that is of interest here is

Ake v. Oklahoma (470 U. S. 68, 105 S. Ct. 1087, 84.L.Ed. 2d

53 (1985)) in which the decision establishes that it is the right

of a defendant to have competent mental health expertise

available to aid in the defense against an accusation. This

decision and subsequent application in case law suggests a

more active role for the expert in consulting with the defense

and supporting the defendant’s claims than is often under-

stood (Rachlin, 1988). The decision, for all practical

purposes, establishes the model for mental health pro-

fessionals involvement in criminal trials (Applebaum, 1987).

The constitutional right to effective assistance of counsel

includes “effective aid in preparation and trial of the case.

“(Powell v. Alabama, 287 U. S. 45, 71 (1932). The use of

experts to assist in the preparation of a defense falls squarely

within the right of counsel (United States v. Theriault, 440 F.

2d 713 (Sth Cir. 1971) cert. den. 411 U. S. 984 (1973); United

States v. Curant, 545 F. 2d 823, 829 (2nd Cir. 1976). The Ake

court grounded its due process analysis on concepts of equal

justice and equal protection (Lee, 1992).

The Supreme Court has also recognized a constitutional

duty in the area of disclosure. There are two separate and

distinct potentials for prosecutorial abuses, using false

testimony and suppression of exculpatory evidence. The

second, suppression of exculpatory evidence, is an issue

involved in the instant case. However, in Jmbler v. Pachtman

(424 U. S. 409 (1976)), the majority noted that it is a

distinction which “is not susceptible to practical application”

(at 431, n. 34.). In U. S. v. Agurs, (427 U. S. 97 (1976) the

Supreme Court described the level of materiality required of

evidence before its suppression reaches constitutional

dimensions as the creation of “a reasonable doubt that did not

otherwise exist”(at 112). Scientific evidence that meets the

requirements of Daubert, when offered by a defendant, will

always be intended to support a reasonable doubt and may

often engender reasonable doubt when offered to the finder of

fact and understood. Behavior by prosecutors and adversaries

which results in either a trial decision based upon defamatory

and false impeachment that excludes scientific expert

evidence or unavailability of experts because of the high risks

involved in testifying when subjected to unlimited defamatory

attacks is therefore a violation of the constitutional rights

involved in disclosure and suppression of exculpatory

evidence.

In New Jersey v. Michaels (136 N.J. 299, 642 Atlantic

Reporter, 2nd, 1372) the New Jersey Supreme Court accepted

the responsibility to ensure reliability of evidence admitted at

trial. “That concern implicates principles of constitutional due

process. ‘Reliability (is) the linchpin in determining

6

a os

I ee eg Oe Pe eee ee

admissibility’ of evidence under a standard of fairness that is

required by the Due Process Clause of the Fourteenth

Amendment. (Manson v. Braithwaite, 432 U.S. 98, 114, 97,-S.

Ct. 2243, 2253, 53, L.Ed.2nd 140 154 1977). Competent and

reliable evidence remains at the foundation of a fair trial,

which seeks ultimately to determine the truth about criminal

culpability. If crucial inculpatory evidence is alleged to have

been derived freom unreliable sources due process interests

are at risk” (p. 1380). The Court finds that the investigation

and the therapy of the children so contaminates the evidence

that it requires a taint hearing if the defense can demonstrate a

substantial likelihood that adult influence has affected

statements by children and imposes a burden of proof on the

State to show the statements are reliable enough to be

admitted. The Court details the “. . .egregious prosecutorial

abuses” (p. 1385) and illustrates them with summaries of

several interviews. In demonstrating the need for a taint

hearing and in rebutting a State’s claim of reliability a

defendant must have the assistance of a competent mental

health scientist and be able to present scientifically sound

testimony. To be prevented from doing so would be a

violation of due process. Therefore defamatory personal

attacks on experts and improper and false impeachment

tactics, of necessity, involve this constitutional issue.

In the issues the National Congress attempts to deal with

involving the most intimate and basic of human relationships,

the family, and the level and nature of state intrusions into the

family, the most primitive and atavistic emotions of all those

involved are elicited. This imposes a special burden on

prosecutors and other agents of the state to aim at the highest

levels of reason and responsibility. A prosecutor is prohibited

from seeking convictions at any price. The prosecutor is

viewed as a “minister of justice” whose obligation is to guard

the rights of the accused as well as to enforce the rights of the

public. The prosecutor is held to an even higher standard in

sexual abuse cases due to the inherently emotional reactions

evoked in such cases (State v. Danielson, 377 N. W. 2d 606

(Minn. App. 1985); State v. Jahnke, 353 N. W. 2d. 606 611

(Minn App. 1984)). The same expectation of increased

awareness of the level of emotional involvement can be

deemed necessary for all adversaries seeking to use our

system of justice to resolve these most difficult and complex

cases. The judiciary also must take into account the different

nature of legal disputes arising out of the nature of family life

and the intimacies therein. The importance of resolution of

disputes in this area is vital to the welfare of any nation state.

This was expressed by St. Augustine centuries ago.

“The union of male and female is the seed-bed, so to

speak, from which the city must grow. . .Since, then, a

person's home ought to be the beginning or elementary

constituent of the city, and every beginning serves some end

of its own, and every part serves the integrity of the whole of

which it is is a part, it follows clearly enough that domestic

peace serves Civic peace, that is, that the ordered agreement of

command and obedience among those who live together in a

household serves the ordered agreement of command and

obedience among citizens.” (Augustine, The City of God,

15,16,19,13.)

Summary of Argument

The core issue in this case is the defamation of expert

witnesses by the prosecution and other adversary attorneys. In

the instant case, there is no disagreement about the def-

amation of the plaintiffs by the defendants. Twice Judge

Shabaz, District Court, observed that the actions of the

defendants were defamatory as fact and as law. Twice the

ee NS ee

decision of the Appellate Court describes the behavior of the

defendants as defamatory.

SPUR SPR B

“Like the district court we shall assume that at

least some of the statements are untrue and

defamatory. Cf. Moldea v. New York Times Co., 15

F3d 1137 (D. C. Cir. 1994). Affidavits offered in

Opposition to the motion for summary judgment

create a material dispute on the truth of the

statements. (p. 5). . . the fact that both Salter and

Toth have continued publishing the defamatory

statements. Salter’s monograph remains in cir-

culation and she continues to pass out copies of the

Mr. Bubbles tape. Toth frequently lectures on the

subject of child molestation and she continues to

use the Mr. Bubbles tape as part of her presentation

(p.10).”

There is no dispute that the defendants continue to publish

the defamatory statements after the initiation of the law suit

and, indeed, up to the present moment. They continue to

advertise and distribute their defamamatory material to this

very day. The defendants continue to maintain their posture of

belief that the statements are true in the face of the

disconfirming evidence supplied by the plaintiffs and their

own admissions that what they claim has been said by the

plaintiffs has not been said.

Nevertheless, the district and appellate courts have ruled

that the heightened standard of actual malice of New York

Times for media defendants is applicable.

‘A person who concludes that a public figure is

a knave may shout that conclusion from the

mountain tops. Both Salter and Toth came to

9

|

believe that Underwager is a hired gun who makes a

living by deceiving judges about the state of

medical knowledge and thus assisting child mo-

lesters to evade punishment.. Persons who hold

such opinions cannot be expected to look kindly on

their subjects, and the law certainly does not insist

that they shut up as soon as they are challenged (p.

10).”

However, does this include teaching and distributing

untrue and defamatory material about an expert witness to

prosecutors and others who then bring it into the courtroom

and use it in the effort to impeach experts?

If the the New York Times standard of actual malice 1s

extended to include attorneys, scholars, and others who teach

prosecutors and adversary attorneys to impeach experts in the

courtroom by falsehood, innuendo, and lies, and the proof of

actual malice can be defeated by a defendant simply asserting,

“I believed it to be true,” the effect on the process of justice is

devastating. It can only greatly increase the level of error in

judicatory decisions. The effect of this decision is to give a

hunting license to the government and to any adversary to

attack by any means, fair or foul, any experts who may have

scientific data and knowledge which, for whatever reason, the

government or adversary does not find convenient. It raises

the power of the office of prosecutor to an absolute level for it

removes any possibility of accountability for redress if

zealotry or blind ambition lead to excesses.

The suggestion by the /mbler majority that abuse of

prosecutorial immunity can be deterred by the criminal

analogue of § 1983, 18, U. S. C. §242 is unrealistic. This is

shown by the fact that there are only a few reported cases of

18 U. S. C. § 242 being used against a prosecutor. The

10

ae ie

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RI tne aS + Als

ee Las 5

CORSE RP RT iat eis PITS Te

difficulty in persuading a prosecutor to prosecute a colleague

is self-evident. The potential of an ethical reprimand is just as

uncertain as a criminal sanction. Disciplinary committees

must deal with legal standards of materiality and subjective

interpretations of due process cannot be the basis for ethical

sanctions. There is no feasible source of accountability for a

decision to suppress evidence helpful to a defendant (Beatry,

M. L. (1981). The ability to suppress exculpatory evidence:

Let’s cut off the prosecutor’s hands. Idaho Law Review, 17,

237-248.) If permitted to stand the Seventh Circuit decision

in the instant case removes the last possibility for any redress

or any consequence for behavior which is clearly wrong.

There is no way this would not lead to an increase in abuse of

the power of the prosecutorial office and the position of

adversary. The certain outcome of that is greater and more

frequent injustice.

There will be fewer and fewer scientists willing to take the

abuse and suffer the assault to their reputations in order to

assist in the defense of a citizen charged with a crime of any

sort. This outcome is all the more likely because the

defendants have made their purpose crystal clear in their

Memorandum in Support of Defendants Toth. Peters. Rose,

the Center, APRI and NDAA’s Motion for Rule |! Sanctions.

On pages 5-6 of this Memorandum the defendants describe

the National Center for Prosecution of Child Abuse and its

services. They claim the Center is nonprofit and provides a

necessary service for prosecutors to assist them to prepare for

dealing with experts the defense presents. Then they include

this paragraph:

“Likewise, the more prepared prosecutors

are for expert witnesses who make their living

testifying only on behalf of child molesters (and

essentially adopting theories attendant to their

source of income) the less effective, and less

commercially desirable, the expert will be for

future alleged child molester defendants (p. 6).”’

This, together with their publication of a “hit list, as Toth

termed it, with fifty names of persons they label defense

experts, demonstrates the conviction that anyone who

opposes them is a pure mercenary and they intend to damage

them financially.

Finally, the only scientific experts appearing in the

courtroom will be those who maintain whatever line the

government has determined suits its purposes. At that point,

rather than the solid scientific knowledge which the Daubert

decision aims at, there is likely to be a variant of Lysenkoism.

Trofim Lysenko, in the Soviet Union in the 1930s, promoted a

theory of genetics assuming the inheritance of acquired

characteristics. This concept was favored by the state because

it permitted the false hope of the new Soviet man and woman

rising to ever more faithful service to the state. Lysenko

enjoyed a few years of fame and fortune as a lionized servant

of the state. The effect on the nation, however, was to cripple

severely the agricultural economy and destroy scientific

genetics in the Soviet Union for years.

In the specific area the National Congress is most

concerned with, family life, the effect would be to foster

unscientific, unsupported, and erroneous views which can

masquerade as science in the courtroom. The scientific

approach of the plaintiffs is generally accepted in the

scientific community. This fact is demonstrated in articles

such as Ceci & Bruck, 1993, Kassin, Ellsworth, & Smith,

1989, and the plethora of recent research which supports the

understanding that claims of child abuse must be dealt with

very cautiously if they are uncorroborated. Across a broad

12

ESOC ay NLS Lay AAR RAS PORES hi ey Go

area the most recent research is accumulating to demonstrate

that what the plaintiffs wrote in their 1988 book is correct and

supported more and more strongly.’

The end result of this process of prosecutors and

adversaries attacking and defaming expert witnesses who

offer scientific facts contrary to received wisdom is to defeat

the interest of this Court in having reliable scientific

knowledge available in the courtroom and to deny to those

persons on the politically incorrect side of any controversial

issue due process, equal justice, and equal protection. It is to

encourage and support the most vulnerable and seductive side

of the role of prosecutor, the corruption of absolute power

with no accountability and no controls.

We strongly urge this court to consider the overall effect

of extending the heightened standard of actual malice to

prosecutors in the courtroom and in their attacks on expert

witnesses outside the courtroom. It is not too much to require

' The prosecution and the child protection system has locked itself

into supporting and advancing assertions that are now shown to be

unfounded, These include concepts popularly understood, such as

children cannot lie, or do not lie, about sexual abuse. Children cannot talk

about things they have not experienced. Child abuse, including sexual

abuse, is an epidemic. The state can provide adequate safety and care of

children. Children should always be raised by mothers. Children are no

more suggestible than adults. Children cannot be led to produce false

central details of events that did not happen. Children can be questioned

by adults repeatedly in a leading and coercive fashion but still produce

spontaneous and reliable statements. Most people who interview children

do not use leading and suggestive approaches. Domestic violence ts a

gender problem and men are the ones who do violence to women. Claims

of recovered repressed memories of childhood abuse are true. Even if you

do not remember you were abused, that is evidence you were, and if you

feel like it, then you have been.

that all the persons involved in the courtroom in the search for

justice play by the same rules. When every witness is required

to swear an oath “. . .to tell the truth, the whole truth, and

nothing but the truth” to exempt the prosecutor or adversary

from the simple, plain duty to be truthful and accurate in

statements, implications, and innuendo cannot advance the

cause of justice nor aid in making the most accurate decisions

possible. To permit and encourage irrational, dogmatic, and

erroneous attacks on scientific knowledge in the courtroom

and to have no way to control such attacks is to defeat the

nature and purpose of science.

If it should be that the court determines the heightened

standard of New York Times is applicable, in the alternative.

we strongly encourage the court to establish that republication

of defamatory material after suit is evidence of actual malice.

This would be in keeping with the opinion of this court

regarding “. . .persistent conduct after suit. . .” in Farmer v.

Brennan, 128 Lawyers Edition, 2nd, 811. In the instant case,

after suit, Toth republished the defamatory videotape thirteen

(13) times in ten states. The APRI National Center for

Prosecution of Child Abuse continues to this day to send out

and publish the defamatory material of Salter’s monograph.

They continue to send material to anybody who asks for

information to harm the plaintiffs, not just to prosecutors as

their policies claim.

It is true, as the appellate court’s ruling reads, that

“Scientific controversies must be settled by methods of

science rather than by the methods of litigation (p. 11).”

However, scientific methodology does not include def-

amation, character assassination, nor asserting falsehood to be

truth. It does not include private publication and private

circulation of false and defamatory attacks upon other

scientists. If a non scientific party, which consumes science,

14

Pe a ee oe ee |

A AB Aer Rh 2D, Bilal ile. BSD dP

can be involved in the doing of science and introduce

falsehood into the practice of science with great power and

authority, the capacity for mischief is incalculable. Therefore

we urge this court to accord to scientific experts who are

willing to enter the adversarial system to provide scientific

knowledge nothing more than the ordinary recourse open to

all other citizens—the opportunity in our system of justice to

demonstrate and establish for a jury of their peers their

probity, veracity, and truthfulness if challenged and attacked.

Argument

I. There is ample case law and precedent establishing a

standard of accuracy, fairness, and truthfulness in at-

tempting to impeach an adversaries expert witnesses

and refusal to permit innuendo or implications of

some form of wrong doing to be used to deny a

defendant a fair trial.

The most frequent attack made on an expert 1s that of

being a “hired gun” who testifies in whatever way the payee

wants. The Supreme Court of Michigan (Michigan v. Tyson

(1985), Supreme Court of Michigan, Docket No. 73774,

Calendar No. 25. 377 N.W.2d 738 (Mich. 1985) ruled that a

“prosecutor’s statements . . . to the effect that the defendant’s

psychiatric expert had testified only because he was paid to do

SO, Was misconduct so prejudicial that it denied defendant a

fair trial” (p. 745)... “was not cured... and therefore reverse

defendant’s conviction” (p. 746).

A Michigan appellate court (Shemman v. American

Steamship Company (1979). Court of Appeals of Michigan,

Docket No. 77-2239. Mich.-App., 280 N.W.2d 852) ruled that

“improper innuendoes” about expert witnesses constitute a

“studied purpose to prejudice the jury and divert the jurors’

iS

attention from the merits of the case” (p. 857). “Witnesses

should not be subjected to personal attacks and un-

substantiated insinuations. Each party is entitled to present its

case on the merits, free from remarks of opposing counsel

which may prejudice the jury and divert its attention from the

real issues” (p. 858). The court then ruled that the “cumulative

effect of the improper arguments and innuendoes . . . was so

highly prejudicial that we conclude defendant was denied a

fair trial” (p. 859). When jurists recognize the serious impact

of such implications on the effort to do justice, it cannot be

that the claim these are mere opinions has merit or can be

sustained.

The New York State Human Rights Appeal board

(Taormina, C. v. Goodman, S. S. (1978). No. 406 N.Y.S.2nd

350. Supreme Court, Appellate Division, Second De-

partment.) held “For example, at one point counsel stated that

one of defendant’s experts was known in the community as

‘here come Howie’ and implied that he would offer any

testimony which might be desired for a price. . . We believe,

that standing alone, the cumulative effect of these improper

remarks would require a new-trial.” (p. 352)

Although the Supreme Court of North Carolina did not

hold it to be prejudicial error, it did observe (State v. Rosier,

H. W. (1988). No. 331A86. Supreme Court of North Carolina)

that an implication that an expert witness was paid “. . .need

not imply that he would not testify truthfully.” Therefore, the

remarks by the prosecutor were not prejudicial enough to

warrant reversal. The Supreme Court of New Jersey (State v.

Rose, T. (1988). No. 112 N.J. 454. Supreme Court of New

Jersey) reversed the death penalty because of the im-

proprieties of the prosecutor during the opening and closing

remarks in the sentencing phase. The remarks included

implications that the expert was told by defense counsel how

16

to testify, The Illinois appellate court (State v. Coulter, D.

(1992). No. 1-87-3175. Appellate Court of Illinois First

District, First Division. held that when the state attacked the

honesty of defendant’s expert witness, an attorney cannot

insinuate that a witness is untruthful because he is paid by the

opposing party. In Stamos, P. J., Perlin, J. & Hunter, M. L. v.

Sukkar, F. ((1982). N. 482-0054. Appellate court of Illinois.

Fourth District) the court observed “Illinois courts have taken

a dim view of counsel impugning the integrity of physicians

testifying as expert witnesses. . .a parallel was suggested

between the TV character in “Have Gun Will Travel” and the

doctor who has ‘medical testimony will travel’. . .These

remarks were clearly improper, , , Counsel went beyond

merely noting compensation and its implications as to his

credibility, to suggesting he was a ‘professional

witness’... anda ‘hired gun’ .”

The Supreme Court of Nevada (Sipsas, W. v. State (1986).

No. 14927. Supreme Court of Nevada.)went a bit further in

determining that a prosecutor’s remarks, even though defense

counsel did not object, were so“. . . prejudicial as to require

court intervention sua sponte to protect the defendant’s right

to a fair trial. The prosecutor *. . .notwithstanding the rules of

professional conduct prescribed under Supreme Court Rule

188(4) the prosecutor expressed the following vituperative

remarks during closing argument: ‘Now that brings us to [sic]

Dr. Jindrich. The Hired Gun from Hot Tub Country. Have

stethoscope, will travel. . . .I think Dr. Jindrich is a living

example of Lincoln’s law. You can fool all of the people

enough of the time.’ ” The conviction for first degree murder

and child abuse was reversed and a new trial required. The

New York Supreme Court (Berkowitz, E. et. al. v. Marriott

Corporation (1990). No. 163 A.D. 2nd 52. Supreme Court,

Appellants Division, First Department.) mandated a new trial

in an action for damages for personal injuries because of

17

“e

plaintiff’s counsel’s remarks “. . .in an unfair and highly

prejudicial attack upon credibility and competence of

defendant’s expert witnesses. . .were repeatedly depicted as

hired guns who were brought into litigation to‘fluff up the

case’.” In Clark, R. v. New York City Transit Authority.

(1992). No. 580 N.Y.S.2nd (AD. | Dept.). Supreme Court.

Appellate Division, First Department) held that in attacking

the testimony of the expert trial counsel acted improperly as

an unsworn witness when he said that the testimony of the

witness was “‘false, absolutely false, and misleading’. . . It is

error for trial counsel to bolster his case on summation by by

repeated accusations that witnesses on the other side are

liars. .. It is error for trial counsel to accuse medical experts,

without supporting evidence, of being willing to testify for a

fee. . . ‘is nothing but a paid expert who will say anything

whatsoever without regard to what is right, without regard to

what 1s truthful’ ”

In another case (People v. Rodriguez, N. Y. L. J., 192:1

August 17, 1984) the appellate court censured the prosecutor

for repeatedly resorting to ridicule and sarcasm in order to

impeach the the credibility of the defense’s psychiatric expert

witness. “Do you always diagnose people as crazy based on

this type of guesswork, Dr.? . . .Doctor, is it a symptom of

some form of psychosis when a man can’t answer a straight-

forward yes or no question? . . .Let’s hear it, Doctor. Run

through your routine.” The Florida Supreme Court (Nowitzke,

F. v. State (1990). N. 71729. Supreme Court of Florida.) ruled

that “It is improper to impeach an expert witness by eliciting

from another witness what he thinks of that expert. . . *A trial

should not be turned into a debate on irrelevant and

immaterial issues such as the reputation of one expert witness

as determined or judged by the personal opinion of another

expert witness for the other side.’ The introduction of Dr.

Szasz’ opinion was clearly erroneous. It also violated

18

Nowitzke’s constitutional right to confront witnesses [Szasz

was not a witness and absent].”

The quotation above, from the Defendants’ Memorandum

in Support of Defendants Toth, Peters, Rose, the Center, APRI

and NDAA’s Motion for Rule 11 Sanctions, p. 5—6, makes it

clear that the attitude of the defendants is that all defense

expert witnesses are “hired guns” and that their intent is to

harm them.

The oft quoted dictum “He may prosecute with ear-

nestness and vigor—indeed, he should do so. But while he

[the lawyer] may strike hard blows, he is not at liberty to

strike foul ones” (Berger v. United States, 295 U. S. 78

(1935)) expresses simply what should be the standard for

dealing with expert witnesses. Anyone who willingly and

voluntarily goes into the adversarial world of the courtroom

can accept hard blows but fair and deal with it. That is not the

problem. It is the foul blows that cannot be canceled or

overcome. It is the untruthfulness that is spread about through

gossip and through workshops and seminars and writing that

cannot be countered or responded to in any effective manner

that will have the effect of depriving defendants of adequate

expert scientific assistance and thus deny them a fair trial.

There should not be any greater latitude allowed outside the

courtroom than in it. If falsehood and defamation are spread

about outside the courtroom, it will find its way inside at some

point.

Il. Depriving the defendant of the right to have qualified

experts to assist in presenting the defendant’s version

of the facts denies him or her due process under the

law.

19

Effective deprivation of the right to qualified expert

assistance can come about through indirect actions that make

it impossible or very difficult. The right to have expert

assistance, as this court has defined it, is an empty right with

no substance if the rightful assistance is not available. This is

the effect of the attacks of prosecutors on experts even now

without the hunting license afforded by the appellate decision

in the instant case. A survey of experts in child sexual abuse

cases (Underwager, Wakefield, Legrand, Bartz, & Erickson,

1986) demonstrated that mental health experts who testify for

the defense in cases of alleged sexual abuse of children share

Similar experiences. With one exception, every respondent

reported being isolated, criticized, characterized as hired

guns, and targeted for slander and innuendo. There were

efforts to blacklist them, interfere with referrals, cancel their

classes and workshops, cut off funding sources for research

projects, and, in one instance, deliberate dissemination of the

false claim of a homosexual relationship with the defendant.

One respondent testified for the first time for a defendant. The

consequence was that his office was picketed by angry adults

claiming he was supporting pedophiles. That was his first and

last time.

Every respondent but one also reported observing

instances of prosecutorial misconduct ranging from simply

withholding exculpatory evidence to breaking in to a judge’s

office and rifling his files which resulted in his being removed

from the case (Wakefield & Underwager, 1988). It is not

simply a matter of venal or unethical prosecutors. Rather it is

the nature of the role of prosecutor itself that generates the

greatest pressure to misconcuct. The prosecutor can never be

wrong. He or she must believe that every person whom they

prosecute is guilty since they cannot work for the conviction

of an innocent person. This pressure is omnipresent because it

is built into the system. The pressure will be strongest in the

20

self-righteous prosecutor and everything in the justice system

compels the prosecutor to believe in the rightness of the cause

(Jonakait, R. N. (1987). The ethical prosecutor’s misconduct.

Criminal Law Bulletin, 23(6), 1987).

“Few rights are more fundamental than that of an accused

to present witnesses in his own defense.” (Chambers v.

Mississippi, 410 U. S. 284, 294, 93, S. Ct.. 1038, 1045 1973).

To deprive an accused of the ability to present witnesses in his

own behalf is to subject him to a trial that is so fundamentally

unfair as to deprive him of the due process guaranteed by the

Fourteenth Amendment of the Federal Constitution. See

Washington v. Texas, (388 U.S. 16, 19, 87, S Ct. 1920, 1923,

1967) “The right to present the defendant’s version of the

facts as well as the prosecutions to the jury so it may decide

where the truth lies . . .is a fundamental element of due

process.”

* According to law professor, Gideon Kanner, “. . .deception,

nastiness, intimidation, and general lack of civility among lawyers are

increasingly permeating the litigation process . . . In the real world trickery

succeeds all to often . . . Lawyers are by and large neither stupid nor

irrational. They do what they think will help their case and what they think

judges will let them get away with. . . When judges don’t care enough

about the ethical quality of the litigation process to deal with outright

misconduct effectively, there is little hope. . . It is therefore indefensible

for judges to wash their hands of problems and let the litigation process

seek its lowest tolerable level. That is nothing short of a surrender to the

barbarians among us. . . Judges ask that we pay homage to them by rising

when they enter a courtroom and by addressing them as ‘Your Honor.’

Judges are the only officials in our government who can summarily

imprison citizens for being rude in their presence. To justify these

prerogatives, judges owe us something in return. At a minimum they owe

us a fair hearing, untainted by tolerance of abuse, intimidation, and

deception., They owe us — you should pardon the expression — justice.”

(Kanner, G. (1991, September). Rambo, go home: Of ethics, tactics, and

judges. Trial, pp. 104-106.)

Our system of justice requires a complete presentation of

the relevant facts. The Supreme Court has stated:

“We have elected to employ an adversary

system of justice in which all parties contest before

a court of law. The need to develop all relevant facts

in the adversary system is both fundamental and

comprehensive. The ends of criminal justice would

be defeated if judgments were to be founded on a

partial or speculative presentation of the facts. The

very integrity of the judicial system and public

confidence in the system depend on full disclosure

of all the facts, within the framework of the rules of

evidence. To ensure that justice is done, it is

imperative to the function of courts that compulsory

process be available for the production of evidence

needed either by the prosecutor or by the defense.”

United States v. Nobles, 422 U.S. 226, 230-231. 45

L. Ed. 2d. 141, 149, 92, S. Ct. 2160, 2166 (1975),

quoting United States v. Nixon, 418 U. S. 683, 709,

41 L. Ed. 2d 1039, 1064, 94, S. Ct. 3090, 3108,

(1974).

Given that the right to present evidence is a fundamental

one, the state must show that it has a compelling interest in

extending the heightened requirement of actual malice to

attorneys and scholars that overcomes the defendant’s rights.

Thus far the only interest the Seventh Circuit decision

describes is the pocketbook and/or purse of the scholars and

prosecutors. After claiming that media companies “. . .reap

considerable profits from their endeavors, and the obligation

to pay damages to those they injure is unlikely to put them out

of business . . .”(p. 8), the appellate court goes on to opine that

“Psychologists compiling monographs with the aid of

research grants, and prosecutors seeking to augment one

22

side’s arsenal for trial, do not receive comparable rewards.

Exposing such persons to large awards of damages is more

apt to lead to silence than are comparable awards against

media defendants” (p. 8). Silencing defamatory attacks,

decreasing the level of falsehood, increasing the fairness of

the process, and supporting accuracy in decision making is

exactly what case law about improper and proper im-

peachment is about. It is what all of defamation law is about.

Surely a defendant facing long term or even life

imprisonment, loss of children, destruction of family,

impoverishment and bankruptcy, destruction of career, loss of

friends, social isolation and hostile, judgmental attitudes from

society for all of life is not likely to feel fairly treated when

the wealth and comfort of attorneys and scholars is valued

above his rights and liberty interests.

Ill. There is sufficient repetition of the pattern of

improper attacks upon scientists and expert witnesses

by prosecutors, attorneys, and their allied scholars

and interference in the normal conduct of science to

warrant grave concern. The repeated behavior

pattern justifies maintaining, at the very least, the last

possibility for redress available to a scientist who

believes an unfair attack has been made. That is

access to defamation law and the distinction between

media defendants and non media defendants so that

attorneys and scholars are not given the heightened

standard of New York Times of requiring actual

malice.

Nature, (Anderson, C. (1991). DNA fingerprinting

discord. Nature, 345, 500.) one of the oldest and foremost

scientific journals in the world, published in the U. K..,

reported on the behaviors of American prosecutors, FBI

officials, and their allied scholars, to interfere with scientific

ho

Ww

publication, peer review, and intimidate and harass defense

experts who were critical of DNA techniques in forensic

settings. When DNA experts Lewontin and Hartl had an

article critical of using DNA probabilities in forensic settings

accepted for publication by Science, prosecutors attempted to

intimidate and frighten them in several phone calls, then tried

‘to get the article suppressed and coerced the editor of Science

to publish hastily a non peer reviewed rebuttal by two

scientists allied with the prosecution. The prosecution also

elicited false and misleading testimony from Dr. Daiger and

Dr. Caskey who concealed their grants from the Department

of Justice to study DNA. Both grants were to study the very

issues the defense was criticizing which would have falsified

the prosecutions claim that the questions were resolved. These

examples demonstrate the power of the government to shape

and mold scientific testimony. These efforts to interfere in the

procedures of science and harass experts were confirmed by

Science (Roberts, L. (1991). Fight erupts over DNA

fingerprinting. Science, 254, 1721-1723).

Further extensive efforts to intimidate and harass DNA

experts were reported by Kolata (Kolata, G. (1991, December

20). Critic of DNA tests tells of pressure to withdraw. New

York Times, A16). Foreign scientists have had their visas

questioned, threatened with imprisonment, and prosecutors

have attempted to discredit their work with false claims of

misrepresentation and flawed procedures, much as in the

instant case. In one instance, a scientist was falsely accused of

fraud in his billing practices. Dr. W. Thompson, UC Irvine,

spoke of an unethical pattern of intimidation aimed at

scientists. He sees that when the prosecutors cannot attack the

science, they attack the person. “So the prosecutors are telling

the courts that the critics are unethical, that they are

charlatans, that they are bad” (Kolata, 1991, p. Al6). One

scientist who is critical of DNA forensic use, reports he was

24

——

oe ee

threatened with having a rumor spread that he is a closet

homosexual.

In addition to intimidating and harassing experts,

prosecutors use the ability to dispense research funding to

support research expected to be favorable. The Director of the

National Institute for Justice routinely solicits advice from the

FBI before awarding forensic science research. An FBI

representative participated directly in the external review

process in which grants were awarded to two DNA scientists

who later falsely testified they had no connection with the

prosecution and no grants. This false testimony was

knowingly elicited by the prosecution (U.S.A. v. Stephen Yee,

et al. (1991). Motion for new trial.)

“The conduct of the government in this matter.

particularly the actions of AUSA Wooley,

constitutes an unlawful and unethical effort to

intimidate defense witnesses, retaliate against them

for their testimony and their scientific opinions, and

to tamper with their most precious tangible

property, their scholarship. . .What must be

Stressed, however, is that the government's

misconduct here . . .is not isolated event, or just the

ill considered, impetuous action of an overzealous

prosecutor in the heat of battle. . The attempt to

prevent, alter, and undermine publication of the

article by Drs. Hartl and Lewontin was part of a

broad national campaign by federal and state law

enforcement officials to intimidate, harass, and

deter expert witnesses from testifying against the

FBI and other forensic DNA laboratories and

publishing their views. . .By far the most troubling

aspect of the government’s campaign is its direct

interference in the publication and peer review

to

a

process where an effort is being made to prevent

and undermine the publication of scientific opinions

law enforcement does not like” (pp. 24-25).

In a review of 8000 criminal jury trials Kalven and Zeisel

(Kalven, H. & Zeisel, H.. 1966. The American Jury. Boston,

Little Brown) report that scientific evidence of every kind

save one was far more frequently offerred by the prosecution

than by the defense. The single exception was psychiatric

testimony in an insanity defense. Saks (1989) reports that

80% of the nation’s crime laboratories are located within

police agencies. This suggests that an even higher proportion

of forensic science is carried out within and paid for out of

police agency budgets. He considers this to be grounds for

serious concern about undue command or cultural influence

on forensic science and concludes that “The neutral fact

finding norms of science are incompatible with the crime

fighting culture of police agencies”(p. 788). A review of a

National Institute of Justice custom search of Federal

Criminal Justice Research Data Base for all federally funded

research grants using the index terms Child Abuse, Abused

Children, Abusing Parents, and Prediction produced over 500

grants. Every one was clearly prosecution oriented. This

finding demonstrates the powerful way in which government

can affect the scientific enterprise.

It is firmly founded case law that where a conviction Is

obtained through the use of false evidence, due process has

been denied. It makes no difference whether the prosecutor

actually knew the testimony was false or should have known

it was false (Miller v. Pate, 386 U. S. 1 (1967); Chapman v.

California, 386 U. S. 18 (1967); Napue v. Illinois, 360 U. S.

264 (1959); Giglio v. United States, 405, U. S. 150 (1972).

Where the prosecutor knows or should have known the

testimony was false, the conviction should be set aside if

26

without it the jury might have reached a different conclusion.

(Wright, Federal Practice and Procedure, Criminal 2d,

Section 557.1; Gordon v. United States, 178 F. 2d. 896, 900.

(6th Cir. 1949), cert denied 339 U. S. 935.) The standard,

“might have reached a different conclusion is far less

demanding than “will probably produce an acquittal.” It is a

fully logical extension of this principle to apply it to

prosecutorial use of false impeachment material to induce a

jury to discount defense expert witness testimony. If a

prosecutor knows or should have known that material used to

impeach a defense expert was false but goes ahead and uses it,

the jury might well have reached a different decision without

the use of fraudulent material. The right to due process has

been denied the defendant when such a practice is followed.

Kolata (1991) reports that many scientists say they will no

longer testify because it is simply too stressful. The Carnegie

Commission on Science, Technology, and Government report

underlying the Daubert brief contains data showing most

scientists will not get involved in testifying in court

(Gallagher, S. G. Personal communication, June 19, 1994). In

a survey of forensic psychiatrists (N = 408), Miller, (1985;

The harassment of forensic psychiatrists outside of court.

Bulletin of the American Academy of Psychiatry and the Law,

13(4), 337-343) reports that 43 % of all harassment was

committed by judges and attorneys, 19% of the threats of

actual physical harm, and 14% of the actual physical attacks.

This is an alarming level of unethical harassing behavior by

judges and attorneys. Winfree (1987)(Winfree, L. T. (1987).

All that glitters is not necessarily gold: Negative con-

sequences of expert witnessing in criminal justice. P.

Anderson & L. Winfree (Eds.). Expert Witness (pp. 138-153).

Albany, New York, State University of New York Press)

report a study of the consequences to experts of testifying in

2]

the criminal justice system. The conclusion is that experts *. .

.put more than just their professional reputations in jeopardy. .

.. A sizeable minority—between 22.2 percent and 29.3

percent—reported problems ranging from minor harassment

to major reprisals. . .” in their work and home communities.

Winfree further concludes “. . . Citing any of the above

reasons for not wanting to get involved is to abandon the

judicial system to perhaps the less competent expert who will

practice a somewhat questionable brand of social science” (p.

153). The Board of the National Association of Criminal

Defense Lawyers has expressed concern about the great

difficulty in finding experts willing to testify in DNA cases

and capital cases. In the McMartin case in California, the

defense had to go to England to get Dr. D. Paul to testify after

Dr. Robert ten Bensel. University of Minnesota, was so

intimidated and harassed by the prosecution that he withdrew

as an expert (Buckey, et al., 1990). If the efforts of pro-

secutors, attorneys, and allied scholars succeed in sharply

limiting the number and quality of scientific expert opinion

available to a defendant. here, too. the right to due process ts

being denied. albeit indirectly. but nevertheless quite

effectively.

Conclusion

In this brief, amicus has explored the consequences of

extending the heightened requirement of New York Times for

demonstration of actual malice to non media defendants who

defame and attack defense experts. We believe the con-

sequences will be disastrous for this court’s purpose to have

solid and credible scientific knowledge available to the justice

system as evidenced in the Daubert decision. We believe the

consequences will be to deny to a defendant access to

competent mental health professionals as this court defined

the right in Ake. We believe the consequences will be harmful

28

to the venture of science if the government’s efforts to shape

and mold scientific inquiry to suit its purposes are not

checked. We believe the consequences will be to deny

constitutional rights of due process to defendants, We believe

these consequences can be avoided by the simple act of

allowing expert witnesses the same level of redress and

protection from defamation as all other citizens have.

For these reasons the Court should clarify the standard to

be used in determining the level of malice required for non

media defendants in defamation actions. The Court should

also clarify the impact of republication of defamatory material

after suit in relationship to the standard of actual malice.

Respectfully submitted,

Travis Ballard

Counsel of Record

415 Mill Rd.

Adrian, MI 4922]

(S517) 263-7822

Attorney for Amicus Curiae

National Congress for Men and Children, inc

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