MI- Part two: Sex abuse case against Oakland couple was legal horror show

Part One of this case is here. Apparently this case goes beyond just the actions of the officer during interrogation of the boy. Accordingly, the state Attorney Generals office should start an investigation of the entire operations of the police and the prosecutor's office as well. There is definitely something rotten going on and it may well extend to other cases, and it needs to be stopped pronto! eAdvocate

3-17-2008 Michigan:

Last Jan. 29, with her sexual abuse case against a West Bloomfield couple on the verge of collapse, Assistant Oakland County Prosecutor Andrea Dean called a psychologist named Sandra McClennen to the witness stand.

Dean was trying to persuade a judge to allow statements in which the couple's autistic 14-year-old daughter, who communicated by typing on a keyboard with the assistance of a teacher's aide, had seemingly leveled horrifying allegations against her parents.

Dean hoped McClennen, who had treated the girl for five years, could convince the court the typed statements represented her ex-patient's words.

But on the witness stand, the prosecution's star witness voiced grave doubts the girl had authored the allegations herself.

"She has never been very good at accurately conveying information about past events," the Plymouth psychologist testified.

"There's, like I said, a lot of room for" the aide's "influence, and we have to constantly worry about that."

Under cross-examination, McClennen was less circumspect. The parents, she insisted, "aren't guilty of this."

Charges dropped
Last week, more than three months after judges jailed the autistic girl's father, confined her mother to an electronic tether and dispatched the girl and her 13-year-old brother to separate foster homes, Oakland County Prosecutor Dave Gorcyca announced his office was dropping all charges and returning the children.

Gorcyca declined several invitations to discuss the case. Subordinates who filed papers dismissing multiple legal actions against the parents say they were hamstrung when the autistic daughter stopped cooperating with the investigation.

But that is disingenuous. In fact, police and prosecutors never established that the daughter has ever made credible allegations against her parents, nor even that she had authored the statements attributed to her.

The belated decision to drop charges ended a 100-day horror show marked by investigative ineptitude, prosecutorial tunnel-vision and judicial timidity.

It also begs a question of great consequence to other parents suspected of sexual abuse: How did the case get so far on so little evidence?

Facilitated what?
It is understandable that police and prosecutors reacted swiftly in late November when a high school administrator reported that an autistic freshman at her Walled Lake school had accused her father of raping her for eight years.

"My dad gets me up, bangs me and then we eat breakfast," typed messages the school provided to the police said. "He puts his hands on my private parts mom knows and doesn't say anything." Other messages said her father had assaulted her in the shower and that her younger brother had fondled her breasts and genitals.

Prosecutors may also have been perplexed by the spectacle of the teenager typing responses to their questions as her paraprofessional facilitator, Cindi Scarsella, supported her typing arm.

Scarsella, a teacher's aide who had accompanied the autistic student to classes since the beginning of the school year after just two hours of training as a facilitator, told police the girl had spontaneously typed the allegations, while Scarsella supported her forearm, during a Learning Skills class in late November.

Prosecutors said the girl repeated the allegations -- again with Scarsella facilitating her typewritten answers -- in an interview at Care House, a facility that specializes in interviewing suspected victims of abuse.

Care House interviews are confidential, but Dr. James Todd, an Eastern Michigan University psychology expert who reviewed a video record of the girl's interview at the request of her parents' defense attorneys, testified that he detected signs that Scarsella was subtly directing the autistic girl's typing.

Scarsella, who did not respond to voice mails left at her home, has said under oath that she did not consciously or unconsciously influence the girl's responses.

"No one in our office had ever heard of facilitated communication," Oakland County Assistant Prosecutor Paul Walton said.

But the girl's parents believed the controversial method, whose proponents called it FC, had unlocked their speechless daughter's inner voice. Ironically, it was the parents' faith in FC that convinced investigators the girl's facilitated accusations were authentic.

But if police and prosecutors had Googled the phrase "facilitated communication" as my Free Press colleague L.L. Brasier did when she first heard about the case, they would have learned that most educators and autism experts had long ago lost faith in FC, and that researchers had repeatedly failed to establish its legitimacy in controlled experiments.

Too good to be true
Conceived in Australia during the 1980s to help people suffering from cerebral palsy, FC was based on the theory that patients with impaired motor skills could learn to type with the help of facilitators who steadied their arms or slowed down their jerky movements.

The method piqued the interest of researchers at the University of Syracuse, which began training facilitators in FC with autistic children.

By 1990, parents who had never had meaningful exchanges with their autistic children were reporting seemingly miraculous breakthroughs. Overnight, youngsters who had never spoken or written a word were participating in classroom discussions, composing sophisticated poems, and articulating their affection for parents and teachers.

Or so it seemed.

But within a few short years, skeptics were pouring cold water on those anecdotal accounts.

Spurred by a flurry of cases in which autistic children using FC accused seemingly trustworthy adults of sexually molesting them, researchers began conducting double-blind experiments. In trial after trial, experimenters demonstrated that typed messages were actually being directed -- albeit unconsciously -- by the facilitators themselves.

Alan Zwiebel is a New York civil rights lawyer whose legal crusade against FC culminated in a celebrated 1997 case in which a federal jury awarded $750,000 to a New York couple who'd lost custody of their retarded daughter. Jurors concluded officials knew or should have known the girl's facilitated allegations of abuse were bogus.

Zwiebel professed astonishment when I told him that Oakland County prosecutors had relied on FC evidence to bring criminal charges against the West Bloomfield girl's parents.

"Facilitated communication? My God -- I though we stuck a stake through its heart in 1997," he said.

Since his 11-year-old federal case, Zwiebel said, "there's been a bright-line rule that facilitated communication is unreliable, period."

Too scared to proceed?
Barbara Morrison and Paul Walton, the assistant prosecutors who took over the West Bloomfield case from Dean in February, say they quickly became aware most experts had rejected FC.

The prosecutors also knew the case had been damaged badly when their autistic 14-year-old witness and her facilitator were unable to type responsive answers to any of 17 questions posed during a two-day court hearing in January:

Q: What color is your sweater?

A: JIBHJIH

Q: What are you holding in your hand right now?

A: I AM 14

The prosecution's case was further weakened when McClennen, the state's own expert witness, testified West Bloomfield police had rebuffed her when she suggested a way to test the authenticity of her former patients' allegations.

McClennen said she had recommended a new interview using a "naive" facilitator -- one unfamiliar with the allegations -- but police blew her off.

In an interview Tuesday, Morrison and Walton said they had planned to use a new facilitator if their autistic witness was willing to go forward, but admitted they had never interviewed the girl with such a naive substitute present.

The two prosecutors said the girl had indicated through the original facilitator, Scarsella, that she was too scared of her father to go back to court. But the girl's parents and their attorneys say she hugged and kissed her mother, father and brother when she was reunited with them last week.

McClennen, who has not seen the family since they were reunited, said she believes her former patient is relieved to be home, but worries about repercussions.

"Everyone who she has had contact with for the last three months has behaved as if she was a victim of her parents and it wasn't safe for her to be with them," the psychologist noted in an interview last week. "I can't imagine what's in her head after 100 days of that."

A conspiracy of timidity
Legal experts such as David Moran, assistant dean of the Wayne State University School of Law, speculate that the girl's parents may soon return to court as plaintiffs in a civil suit against police and prosecutors who tore their family apart.

Among the lingering questions:

• Why did Gorcyca and his subordinates rely on allegations obtained using a method long rejected by courts, academics, and professional groups?

Gorcyca declined to discuss the case. Walton and Morrison say it took their office months to determine the girl's statements were not going to stand up in court. But that does not explain why prosecutors never interviewed the girl with a naive facilitator, as numerous experts had suggested.

• Why did Bloomfield Hills District Judge Marc Barron refuse to exclude statements obtained through FC even after the girl and her facilitator were unable to answer a single question in court?

Baron said it would have been premature to exclude the girl's statements before she had been given a chance to testify about the allegations. He speculated that the girl would have ultimately failed to pass a competency test, but added: "We never got to that point."

• Why was Abbie Shuman, the lawyer appointed to represent the children's interests, absent from key hearings in the case? Did Shuman do anything to expedite a resolution that could reunite her clients with their parents?

Shuman did not respond to four voicemails left over the course of a week.

• Why did Bloomfield Hills District Judge Diane D'Agostini decline to act last month when prosecutors abruptly reversed themselves and petitioned her to release the girl's father on bond?

D'Agostini said she was reluctant to set bond for the father even after prosecutors requested it because Barron was on vacation. An Oakland County Circuit judge eventually authorized bond for the father.

What seems beyond dispute is that police, prosecutors and judges missed repeated opportunities to confirm the girl's accusations by interviewing her with a naive facilitator, or interviewing her brother in a noncoercive setting.

No one should be surprised if Oakland County foots the bill for their carelessness. ..more.. by BRIAN DICKERSON at 248-351-3697 or bdickerson@freepress.com.