Category: Investigations

Brett Sokolow: Dogged Pursuit of a Separate Reality

Post author By Edward Bartlett
Post date September 24, 2021

Brett Sokolow: Dogged Pursuit of a Separate Reality

SAVE

September 24, 2021

The overriding purpose of a campus Title IX adjudication is to evaluate the truthfulness of the allegation. The due process procedures used to achieve this goal include objective investigations, live hearings with cross-examination, impartial adjudications, and an opportunity for appeal, all buttressed by the presumption of innocence.

Following the release of the Dear Colleague Letter (DCL) in 2011, suspended and expelled students began to file hundreds of lawsuits alleging violations of due process. Eventually, judges would issue over 200 decisions favorable to the students.

Six years after the issuance of the DCL, ATIXA president Brett Sokolow issued an upbeat assessment of the current state of due process on college campuses. Modestly titled, “One Response to Congressional Task Force Roundtable,” Sokolow dismissed any need to revitalize due process protections, concluding that “we need to be pushing back as an association and as a field” on the premise that campus processes lack “procedural rigor.”

None of his claims were supported by any references to case law, research, or even anecdotes. Indeed, a careful review of Sokolow’s assertions reveals that four of them are so contrary to existing case law as to suggest Sokolow was unaware of — or had chosen to ignore — the numerous judicial decisions that had been issued as of October 30, 2017, the date that Sokolow published his Response.

Sokolow’s four claims are presented below, verbatim and in italics, followed by a listing of the pertinent judicial decisions that had been issued before the date of the Sokolow pronouncement:

Transparent Investigations and Access to Evidence: “Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;”

Contradicting the Sokolow assertion, 13 judicial decisions were issued prior to October 30, 2017 that documented deeply flawed investigative procedures:

Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017)
Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799, 816–17 (E.D. Pa. Sep. 13, 2017)
Doe v. The Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799, 817 (E.D. Pa. Sep. 13, 2017)
Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
Tsuruta v. Augustana University, No. CIV. 4:16-4107-KES, 2017 WL 11318533, at *3 (D.S.D. June 16, 2017)
Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
Ritter v. Oklahoma City Univ., W.D. Okla. No. CIV-16-0438-HE, 2016 WL 3982554, at *2 (W.D. Okla. July 22, 2016)
Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016)
Doe v. Ohio State University, No. 2:15-CV-2830, 2016 WL 1578750, at *3 (S.D. Ohio Apr. 20, 2016)
Doe v. Rector & Visitors of George Mason University, 149 F. Supp. 3d 602, 619 (E.D. Va. Feb. 25, 2016)
Doe v. Georgia Board of Regents, No. 1:15-cv-04079-SCJ, at *37-38 (N.D. Ga. Dec. 16, 2015)
Doe v. Washington and Lee University, No. 6:14-CV-00052, 2015 WL 4647996 (W.D. Va. Aug. 5, 2015)

The judge’s language was particularly strong in Doe v. Georgia Board of Regents: “To put it bluntly, [investigator] Paquette’s testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional.”

Regarding adequate access to evidence, three decisions underscored schools’ failures in this area:

Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *11 (S.D. Ohio Aug. 25, 2017)
Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
Marshall v. Indiana University, 170 F. Supp. 3d 1201 (S.D. Ind. Mar. 15, 2016)

In Marshall v. Indiana University, the judge noted, “the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against [respondent] Marshall, notably refusing, at all times, to share such information with Marshall or his attorneys.”

Credible Evidence: “Colleges respect key procedural rules, including requiring that evidence be relevant and credible…”

Sokolow’s claim is challenged by three decisions issued prior to October, 2017 that revealed failures to conduct credibility assessments of the complainant:

Arishi v. Washington State Univ., 196 Wash. App. 878, 908, 385 P.3d 251, 265 (2016)
Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
Mock v. University of Tennessee at Chattanooga, No. 14-1687-II, at *14 (Tenn. Ch. Ct. Aug. 4, 2015)

In Arishi v. Washington State Univ., the judge explained, “But the fact that [complainant] MOS did not testify and was never cross-examined undermines confidence in the outcome. This is particularly so in light of evidence undermining her credibility: she misrepresented her age on Badoo as 19, misrepresented ‘Alex’s’ age to her mother, was going out during the daytime when she was supposed to be doing homework at home, was driving illegally, and had a different version of events when interviewed by Sergeant Chapman than she did when interviewed twice by Detective Dow.”

Evaluation of Evidence: “Colleges allow and seek expert evidence and testimony as needed;”

In contrast to the Sokolow characterization, seven judicial decisions that highlighted school deficiencies in the evidence evaluation had been handed down prior to his statement:

Painter v. Adams, W.D.N.C. No. 315CV00369MOCDCK, 2017 WL 4678231, at *7 (W.D.N.C. Oct. 17, 2017)
Richmond v. Youngstown State University, No. 4:17CV1927, 2017 WL 6502833, at *1 (N.D. Ohio Sep. 14, 2017)
Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
Doe v. Brown University, 166 F. Supp. 3d 177, 185 (D.R.I. Feb. 22, 2016)
Prasad v. Cornell Univ., N.D.N.Y. No. 5:15-CV-322, 2016 WL 3212079, at *15 (N.D.N.Y. Feb. 24, 2016)
King v. DePauw Univ., S.D. Ind. No. 2:14-CV-70-WTL-DKL, 2014 WL 4197507, at *13 (S.D. Ind. Aug. 22, 2014)

In Painter v. Adams, the judge revealed: “Here, defendants maintain in their Memorandum in Support of summary judgment that ‘plaintiff presented no documentary evidence’ at the disciplinary hearing. However, it appears that he presented no documentary evidence because he was prevented from doing so. The evidence, viewed in a light most favorable to the party resisting summary judgment, shows that he was prevented from placing into the record exculpatory physical evidence, which raises a concern as to whether plaintiff was denied Due Process.”

Cross-examination: “Colleges allow questioning of the parties, if not cross-examination in its purest form.”

Six judicial decisions had been issued before October 2017 that exposed deficiencies in schools’ cross-examination procedures:

Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. Sept. 25, 2017)
Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017)
Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017)
Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017)
Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014)

In Doe v. Glick, for example, the judge revealed, “Further, Respondent [Glick] appears to have told [complainant] Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule.”

Unsubstantiated Claims

On September 5, 2017, almost two months before Sokolow made his claims, the Foundation for Individual Rights in Education released the findings of its Spotlight on Due Process survey of due process policies at 53 top universities. Reporting on findings that FIRE characterized as “dire,” the survey found:

6% of top universities did not guarantee students that they will be presumed innocent until proven guilty.
Only 47.2% of schools required that fact-finders be impartial.
9% of schools were assigned a ‘D’ or ‘F’ grade for dismal due process policies.

But Sokolow apparently was unaware of the FIRE survey. To the contrary, Sokolow concluded his upbeat assessment by noting, “I think this is enough and should be enough to satisfy a judge.” So “colleges and universities need to do a better job of driving the dialogue about how much due process they DO afford,” Sokolow argued.

In an August 2021 presentation, Sokolow finally did acknowledge the existence of a “tide of litigation.” But inexplicably, Sokolow attributed the lawsuits to “a decade of conflicting guidance, judicial intervention, and inconsistent enforcement” (Brett Sokolow and Terri Lakowski, Time With IX. Slide No. 12) — not to the Kangaroo Court-like procedures that scores of judges had struck down during the preceding 10 years.

Sokolow’s unsubstantiated claims reveal a determined effort to pursue an alternate reality that bears little relationship to the current realities of campus Title IX adjudications.

Department of Justice Investigations Law & Justice Law Enforcement Sexual Assault Sexual Harassment Start By Believing Trauma Informed

EVAWI Announces End of DOJ Funding for ‘Start By Believing’

Post author By Edward Bartlett
Post date July 9, 2021

Registration Fee Now Required for Webinars:

All 2021 Virtual Conference Sessions Available

The pandemic brought challenges, and some surprising gifts, for many of us. Cancelling our 2020 conference was definitely one of the challenges. Because we had to cancel just a few weeks before the conference was scheduled to begin, we lost money already spent on the event, as well as the registration fees. These financial losses represent a substantial percentage of the annual income EVAWI needs to operate. We know that many of you are already aware of that.

What you may not know is that our last federal technical assistance (TA) grant ended in May 2021. These TA grants have been supporting the training and technical assistance programs many of you depend on. Unfortunately, the most recent round of 2021 solicitations did not include similar funding opportunities that we could apply for. [emphasis added]

Between these two developments, EVAWI is unable to continue providing all our online services free of charge, as we have done for so long. We hope this situation will change, as we emerge from the pandemic and new grant opportunities arise.

For the time being, however, we will be charging registration fees for all our live and archived webinars. That may be bad news for some of you. But the good news is that our 2021 virtual conference was extremely successful, with over 2,000 people registered to attend. Because all the sessions from this virtual conference were recorded, we can now – for the first time ever – allow people who couldn’t register for the entire conference to pay for one or more of the 68 recorded sessions. You can find the complete agenda here. Together, this means we now have a total of 120 webinars available in our archive.

Looking ahead, we are very excited about returning to an in-person conference in San Francisco in 2022, but of course also nervous as we continue to navigate new terrain and constant changes. At this time, we are doing everything we can to continue offering our OnLine Training Institute and Training Bulletins free of charge, and we will reevaluate our sustainability in early 2022 to determine if any additional changes need to be made.

We appreciate your support, as we move forward.

Source: https://myemail.constantcontact.com/All-Webinars-Now-Require-a-Fee.html?soid=1101938584617&aid=kkloAR7295I

Campus Investigations Sexual Assault Title IX

PR: In Wake of Hobart College Ruling, Universities Should Re-think Use of ‘Trauma-Informed’ Methods

Post author By Edward Bartlett
Post date July 1, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

In Wake of Hobart College Ruling, Universities Should Re-think Use of ‘Trauma-Informed’ Methods

WASHINGTON / July 1, 2021 – Last week, Judge Elizabeth Wolford ruled against Hobart College of Geneva, NY, denying the college’s motion to dismiss in a campus sexual misconduct case and allowing the lawsuit to move forward (1). Wolford also sustained the breach of contract complaint against CSC Investigations, which had investigated the allegation on behalf of the College.

The case arose from a late-night dormitory encounter between John Doe and Jane Roe in October, 2018 in which the female student removed the male plaintiff’s clothing and initiated the sexual contact. Nearly one year later, the female student filed a sexual misconduct complaint against Doe, claiming she was “blacked out on her bed” at the time.

The College contracted with CSC Investigations, located in Burlington, Vermont, to probe the case. As a result, Doe was expelled from the college in April, 2020. The following month, Doe filed a lawsuit against Hobart College.

On its website, CSC Investigations affirms its use of a trauma-informed approach (2):

“each of our investigators has received training in investigative interviewing, the effects of trauma, and the role that alcohol and drugs may play in incidents of alleged misconduct. CSC investigators have completed workshops at highly regarded educational institutions both in and outside of Vermont and attended the Trauma-Informed Sexual Assault Investigation and Adjudication Institute sponsored by the National Center for Campus Public Safety.” (emphases added)

The lawsuit claims the trauma-informed investigation:

Altered or excluded key information provided by the accused student.
Failed to conduct a follow-up interview of the accused student.
Allowed the complainant — but not the accused student — to change her story to account for statements made by the accused.
In the final investigative report, did not highlight the inconsistencies and contradictions in the students’ statements.
Did not mention the existence of the video taken 20-30 minutes before the alleged assault showing the complainant to be awake, alert, and fully oriented.
Afterwards, destroyed the audio recordings of the interviews.

The lawsuit concludes, “In sum, the entirety of the report was clearly written in such a way to bolster Roe’s claims and to completely obfuscate any evidence that might tend to weaken her credibility or support Plaintiff’s version of events.”

According to Andrew Miltenberg of Nesenoff and Miltenberg, which litigated the case, “This is an important decision in advancing the reality that the trauma informed approach is an inherently biased manner of investigating allegations of sexual misconduct. The fact that schools continue to use this approach is nothing short of stunning, and compromises the objectivity of the Title IX process.”

Following the judicial ruling against Hobart College, universities need to reconsider their use of controversial “trauma-informed” investigative methods that many believe lack a sound scientific foundation. https://www.saveservices.org/sexual-assault/investigations/

Citations:

Believe the Victim Campus Department of Justice Investigations Sexual Assault Sexual Harassment Start By Believing Title IX Trauma Informed Victim-Centered Investigations

PR: Railroading the Innocent: 5,200+ Petition Signers Demand an End to ‘Victim-Centered’ Investigations

Post author By Edward Bartlett
Post date June 16, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Railroading the Innocent: 5,200+ Petition Signers Demand an End to ‘Victim-Centered’ Investigations

WASHINGTON / June 16, 2021 – An online petition is demanding an end to the use of so-called “victim-centered” investigative methods. “Victim-centered” approaches serve to remove the presumption of innocence and tilt the investigation in favor of the complainant (1). Such investigative philosophies are becoming widespread both in the criminal legal system and on college campuses.

The petition highlights the account of Matt Rolph of New York, who was accused of sexual assault by his former long-term girlfriend. Despite the fact that a jury found him innocent of all charges, Hobart College launched a “victim-centered” investigation that ignored inconsistencies among the witness statements. Rolph sued the college, with Judge Elizabeth Wolford eventually ruling in his favor (2).

Inexplicably, Congress has been supportive of such “victim-centered” methods.

Recently the House of Representatives passed H.R. 1620, which endorses “victim-centered” investigations. The bill defines “victim-centered” as asking questions of a complainant “in a manner that is focused on the experience of the reported victim.” (3) This description is an admission of the biased nature of such investigations, because it says nothing about focusing on the experiences of the defendant, or seeking to verify the truth (or falsity) of the allegation.

“Start By Believing” is another “victim-centered” philosophy that has enjoyed generous government support. Over the years, the “Start By Believing” sponsor has received $9.5 million in funding from the U.S. Department of Justice and other sources (4).

“Trauma-informed” is yet another victim-centered ideology that has been derided as “junk science.” (5) Healthcare providers now are being instructed in circular “trauma-informed” thinking. According to a New York State nurse who attended one such training, “Current trauma-informed training teaches that a patient who remembers every detail of an incident, or a patient who remembers little to nothing of an incident, both indicate a trauma has occurred.” (6)

Two years ago the National Association of Criminal Defense Lawyers (NACDL) successfully organized to defeat ABA Resolution 114. The resolution sought to establish an “affirmative consent” standard on the basis of flawed trauma-informed science (7).

The National Registry of Exonerations, which tracks wrongful convictions of the innocent, found that investigative misconduct contributes to 35% of all wrongful convictions. The investigative misconduct includes concealment of evidence, fabrication of evidence, witness tampering, misconduct in interrogations, and making false statements at trial (8).

The names of the petition signers, now numbering 5,278 persons, are available for inspection (9). The online petition continues to accept additional signers: https://www.change.org/p/congress-stop-sham-believe-the-victim-investigations

Citations:

Believe the Victim Campus Due Process False Allegations Investigations Title IX Trauma Informed

PR: Defense Attorneys Urged to Speak Out on H.R. 1620, Which Would Remove Impartial and Fair Investigations

Post author By Edward Bartlett
Post date March 14, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Defense Attorneys Urged to Speak Out on H.R. 1620, Which Would Remove Impartial and Fair Investigations

WASHINGTON / March 15, 2021 – A bill recently introduced in Congress, H.R. 1620, would vitiate the right of defendants to an impartial and fair investigation, thereby removing a key due process right and increasing the risk of a finding of guilt. H.R. 1620 seeks to promote so-called “victim-centered” and “trauma-informed” investigations, which are known to remove the presumption of innocence and sharply bias the investigation in favor of the complainant (1).

H.R. 1620 defines “victim-centered” as asking questions of a complainant “in a manner that is focused on the experience of the reported victim.” This description is an admission of the one-sided nature of such investigations, because it says nothing about focusing on the experiences of the defendant, or on the objective facts of the case.

A report from the National Registry of Exonerations found that investigative misconduct contributes to 35% of all wrongful convictions. The investigative misconduct includes concealment of evidence, fabrication of evidence, witness tampering, misconduct in interrogations, and making false statements at trial (2). To date, 2,754 wrongful convictions have been documented (3), a figure that is believed to substantially underestimate the actual number.

Settlement agreements involve compensation payments to exonerees typically in the range of $50,000 to $100,000 for each year of wrongful imprisonment (4).

Black male defendants are often targeted by such “victim-centered” methods. A recent article by Wendy McElroy reported that 73.6% of wrongful convictions involved Blacks who were victimized by officer misconduct (5).

Ethics codes admonish police officers to conduct investigations that are impartial, fair, and honest (6). The Law Enforcement Code of Ethics of the International Association of Chiefs of Police states, for example, “As a law enforcement officer, my fundamental duty is…..to respect the constitutional rights of all to liberty, equality, and justice.” (7)

SAVE urges defense attorneys to contact the bill sponsor, Rep. Sheila Jackson Lee, and tell her to remove the unconstitutional provisions from H.R. 1620, found at Sections 206 and 303. The full text of H.R. 1620 is available online (8).

A vote on H.R. 1620 is expected to take place later this week. Jackson Lee’s telephone number is 202-225-3816.

Citations:

Investigations Wrongful Convictions

Police Investigative Misconduct Railroaded an Innocent Catholic Priest

Post author By Edward Bartlett
Post date February 20, 2021

Police Investigative Misconduct Railroaded an Innocent Catholic Priest

Ryan MacDonald

February 20, 2021

In September, 1988, Keene, New Hampshire sex crimes detective James F. McLaughlin received a letter from Ms. Sylvia Gale, a New Hampshire child protection social worker. Ms. Gale’s letter reported third-hand information that Catholic priest, Gordon J. MacRae, had once been a priest in Florida “where he molested two boys, one of whom was murdered and his body mutilated. The case is supposed to be still unsolved.”

According to Sylvia Gale’s letter, the information was passed to her by an unnamed employee of New Hampshire Catholic Social Services who claimed that she had been told this information by her employer, Monsignor John Quinn, on condition that she would be fired if she ever divulged it.

Detective McLaughlin skipped the logical first steps that such a letter might have set in motion. He did not consult the priest’s personnel file – which revealed nothing about his ever being in Florida. And he did not consult Monsignor John Quinn, the named originator of the story.

Instead, armed with the explosive Florida murder-molestation letter, McLaughlin set out to interview dozens of parents and their adolescent sons who had prior contacts with MacRae. Within a week, the entire community was in a state of alarm about the murderous lecher-priest in its midst.

Among those McLaughlin interviewed about Ms. Gale’s letter in 1988 were four young adult brothers, Jonathan, David, Thomas, and Jay Grover, the adopted sons of another state social worker, Ms. Patricia Grover, a colleague of Sylvia Gale. According to McLaughlin’s 72-page report, she vowed to question each of her sons about their interactions with MacRae. None of them reported knowing or suspecting anything of a criminal nature.

McLaughlin’s report on this investigation was filled with innuendo, but no substance. He repeatedly attributed untrue information about MacRae to unnamed “informants” and other “subjects.” Toward the end of the report he finally quoted a “Sgt. Smith” from an unnamed Florida police agency.

“Sgt. Smith,” if he actually exists, reported that while there was no molestation-murder case involving a priest, there was a priest who molested a child in Florida and was “quietly moved by the church to New Hampshire.” “Sgt. Smith” added that “your suspect is too young to be that priest.” McLaughlin’s report gives the impression that he never even thought to ask for the name of that priest.

Five years passed. In 1993, one of the Grover brothers, Jonathan, age 24, appeared in McLaughlin’s office with a new story that he had been unable to remember five years earlier. He said he was repeatedly sexually assaulted when he was twelve years old by two priests, Gordon MacRae and Stephen Scruton. His initial claim was that the two priests acted in concert, fondling his genitals with their feet while in a hot tub at the YMCA. He then went on to describe other assaults “in the rectory where the priests live.”

An immediate problem was that MacRae was never in that parish until Grover was fourteen years old, and Scruton was never there until Grover was sixteen. A second problem was that one of Grover’s high school classmates, “T.B.” claimed 18 months earlier in an interview with McLaughlin that he was molested by Stephen Scruton alone who fondled his genitals with his foot in a hot tub at the YMCA. “T.B.” received an undisclosed financial settlement from the Catholic Diocese of Manchester, NH.

The “T.B.” case had no connection to MacRae. McLaughlin wrote the Grover report while apparently having no memory whatsoever that he wrote a nearly identical report eighteen months earlier about a foot molestation event by a priest in a hot tub at the YMCA.

Complicating both accounts, McLaughlin’s investigation file contained a transcript of “The Church’s Sexual Watergate,” an episode of a Geraldo Rivera Show that aired in November 1988. It had apparently been faxed to McLaughlin from the studio. The Geraldo transcript preceded McLaughlin’s reports in both cases above, and contained this excerpt:

Geraldo: “What did the priest do to you, Greg?”

Greg Ridel: “When I was 12 years old, he placed his foot on my genitals in a YMCA hot tub and began rubbing. This went on to other things in the rectory where the priests live.”

MacRae was brought to trial for these unsubstantiated claims in September, 1994. Pre-trial, he was twice offered plea deals to serve one-to-three years in prison for a guilty plea. Then the offer was reduced to one-to-two years. Citing his innocence, MacRae rejected these offers. Before his trial commenced, his Catholic diocese, already heavily into settlement negotiations, issued this press release:

“The Church has been a victim of the actions of Gordon MacRae just as these individuals …. It is clear that he will never again function as a priest.”

After the trial, the Grover brothers received financial settlements from the Catholic Diocese of Manchester, NH in excess of $610,000.

Unlike his protocols in nearly all other cases, Detective McLaughlin recorded none of his interviews with claimants in the MacRae case. A reason for the absence of recorded interviews may become clear from a statement of Steven Wollschlager, a young man who accused MacRae during one of McLaughlin’s interviews, and then recanted, refusing to repeat his accusations to a grand jury. From his sworn statement:

“In 1994 before [MacRae] was to go on trial, I was contacted again by McLaughlin. I was aware at the time of the [MacRae] trial, knowing full well that it was all bogus and having heard all the talk of the lawsuits and money involved, and also the reputations of those making the accusations …. During this meeting I just listened to the scenarios being presented to me. The lawsuits and money were of great discussion and I was left feeling that if I would just go along with the story I could reap the rewards as well.

“McLaughlin asked me three times if [MacRae] ever came on to me sexually or offered me money for sexual favors. [He] had me believing that all I had to do was make up a story about [MacRae] and I could reap a large sum of money as others already had. McLaughlin … referenced that life could be easier with a large sum of money … I was at the time using drugs and could have been influenced to say anything they wanted for money. A short time later after being subpoenaed to court, I had a different feeling about the situation.”

Mr. Wollschlager has never been allowed to present his testimony before a judge in any of the summarily denied state and federal appeals of the MacRae case.

Knowing that MacRae rejected plea deal offers to serve only one to two years in prison, Judge Arthur Brennan chastised the priest for insisting on a trial and sentenced him to consecutive terms for a total of 67 years. MacRae is now in his 27th year in prison and continues to maintain his innocence.

Author’s Note: For a full version of this story, see “Truth in Justice: Was the Wrong Catholic Priest Sent to Prison?”

Investigations Start By Believing

Has EVAWI Been Moderating or Covering its Tracks?

Post author By Edward Bartlett
Post date February 17, 2021

Has EVAWI Been Moderating or Covering its Tracks?
By James Baresel

February 16, 2021

In 2020 End Violence Against Women International (EVAWI) issued a revised version of its instruction manual Effective Report Writing: Using the Language of Non-Consensual Sex, an older edition of which had been in use since 2006. Both versions are based in a forensic assumption of guilt (consequent upon a prejudiced assumption of the veracity of complainants), moderation to which in the revised manual has been characterized by critics as “too little, too late.”

That, however, is something of an understatement. The truth is that the changes were not only made following years of criticism of EVAWI’s methods of investigation and report writing by legal experts, advocacy groups, academics and journalists The truth is that they were not only made after numerous court rulings in favor of due process. And the truth is that there is little reason to believe the changes do much more than (somewhat) hide the prejudiced and prejudicial nature of EVAWI’s methods from public view or a shift to more subtle ways of inculcating them.

Since EVAWI receives considerable support (both financial and otherwise) from the federal Department of Justice, and since the new presidential administration is the ideological successor to one that had a record of undermining due process, it will be useful to take a closer look at the history behind the changes to the above named instruction manual and its relationship to the practices of the organizations in question.

Founded in 2003, EVAWI purports to be an independent agency dedicated to fighting sexual assault. In that capacity it has received over $7.5 million from the Department of Justice’s Office on Violence Against Women and provides training programs for police officers accredited both by the governments of ten states and by particular agencies within others [https://evawintl.org/olti/olti-accreditation/]. But what it really does is attempt to instill a prejudiced assumption that complainants’ honesty is to be taken for granted, and, therefore, to substitute presumption of the guilt of those accused of sexual assault for forensic objectivity and the legal presumption of innocence.

Both versions of Effective Report Writing reveal the prejudiced nature of the methods advocated by EVAWI. Both teach investigators to document “suspect statements, especially those that corroborate the victim’s account or provide an implausible or even absurd version of reality.” To “especially” record statements by suspects that seem to corroborate the accounts of self-professed victims, rather than give due attention to statements that put the veracity self-professed victims’ accounts in question, is nothing other than deliberate misrepresentation. And while it might be reasonable to highlight claims impartial assessment has judged implausible, such impartiality is impossible if an investigator begins by assuming the veracity of complainants. Both version also insistent upon police reports presenting their accounts from the perspective of complainants rather than from that of a neutral third party.

Bad as this might be, the original manual contained particularly damning statements that were removed as part of the revision. The most serious of these was the instruction that, in order to “better support successful prosecution,” police investigators should “try to fill in details that are realistic, based on the kinds of sexual assault cases you have handled and the victims you have interviewed” as doing this will better “articulate the context of force, threat, or fear that the victim experience.” Detectives, in other words, are to state in their official reports that particular incidents of alleged sexual assault included actions which the complainants themselves never claimed happened but which, by being typical of the type of incidents alleged, and can communicate the “feeling” of such incidents.

While these statements are not found in the revised manual, the paragraph that followed them in the original remains unchanged and continues to refer to “‘missing information’ [details that are realistic] that is filled into the report.” It would seem that those receiving instruction from EVAWI are still taught to include made up “realistic details” in official reports despite the removal of such teaching from the written manual.

The history behind the changes to Effective Report Writing further suggest that they are little (if anything) more than cosmetic, designed to improve EVAWI’s public image or to hide evidence of its methods from the public and from government agencies. In February 2018 the Center for Prosecutor Integrity–an organization dedicated to defending due process–sent a letter to the Federal Department of Justice, informing it of the manual’s biases (1). The DOJ responded in May of the year, informing the CPI that its communication had been forwarded to Office on Violence Against Women (2), the DOJ department that funds EVAWI. Allowing for the time it would have first taken for the Office on Violence Against Women to analyze the complaint and to communicate with EVAWI and then taken for the EVAWI to act on any communications from the Office on Violence Against Women, the release date of revisions to Effective Report Writing suggest they were (at least partially) an attempt to counteract CPI criticism.

And that means that unless the DOJ and the Office on Violence Against Women possess “an implausible or even absurd” degree of naivety they must be willing to turn a blind eye to EVAWI’s attempt to hide its intentions from the public record

1. http://www.prosecutorintegrity.org/wp-content/uploads/2018/02/OIG-complaint-Start-by-Believing.pdf
2. https://dailycaller.com/2018/06/07/start-by-believing-program/

Source: http://ifeminists.net/e107_plugins/content/content.php?content.1497

Investigations

“For 1989, that was standard practice for the N.Y.P.D., but now we know better.”

Post author By Edward Bartlett
Post date February 16, 2021

3 Detectives Obtained a False Murder Confession. Was It One of Dozens?

Huwe Burton was wrongly convicted because of deceptive interrogation techniques. How many more cases were “solved” the same way?

For Huwe Burton, the breaking point came late on the night of Jan. 5, 1989, as he sat with detectives in a cramped, windowless room on the second floor of a Bronx police precinct. He had not eaten or slept much in 48 hours.

A detective leaned in and said, “Tell us again about what happened that day.”

Mr. Burton, who was 16 then, repeated his story. He had come home two days earlier after spending the day at school and then at his girlfriend’s house, to find his mother, Keziah Burton, facedown on her bed, stabbed to death. Her nightgown was pulled up to her waist. A blue telephone cord was wrapped around her wrist.

What happened next in the interrogation room would reverberate in powerful ways over the coming decades. A false confession. An innocent man imprisoned for nearly 20 years. Serious questions about the tactics used by the three detectives involved in the investigation into Ms. Burton’s killing — and many others.

And now, a wide-ranging inquiry by the Bronx district attorney into whether the detectives’ tactics had tainted guilty verdicts in 31 homicide cases that relied on confessions.

The inquiry highlights how a new generation of prosecutors in New York and elsewhere is delving deeply into whether deceptive police interrogation tactics might have warped the criminal justice system through false confessions and wrongful convictions.

The examination comes after the emergence of hundreds of cases across the country in which people were sent to prison only to be exonerated later through the use of DNA or the discovery of new evidence.

Most of the Bronx cases being reviewed date to an era when violent crime in New York was at record highs. The police were under significant pressure to make arrests, especially in high-profile cases, and prosecutors faced similar demands to win cases they brought to trial.

But in some instances, the police and prosecutors moved too fast, made mistakes and ignored or withheld evidence that suggested they had the wrong person, exoneration experts say.

In Mr. Burton’s case, a judge exonerated him in his mother’s killing in 2019 after the Innocence Project, a nonprofit that investigates wrongful convictions, unearthed evidence not only that detectives used psychologically coercive techniques to get his confession, but that the prosecution had withheld evidence suggesting someone else was the killer.

That, and questions about other cases, prompted the Bronx district attorney, Darcel D. Clark, to order her office’s Conviction Integrity Unit to review dozens of other homicide investigations handled by the same detectives.

In a federal lawsuit filed in December, Mr. Burton accused the detectives of using lies, a false promise and a threat to persuade him to admit to something he had not done. He asserts that the detectives, to protect their reputations, and the prosecutor pressed ahead with the charges even after learning he had an alibi.

“Everybody got on board and thought it was a good idea to do this to a 16-year-old child after he had just lost his mom,” Mr. Burton said. “They chose to say ‘No, this is what we’re doing — we’re just going to lock him up.’”

The National Registry of Exonerations found that official misconduct played a role in the criminal convictions of more than half of 2,400 Americans who were exonerated between 1989 and 2019. For Black men wrongly convicted of murder, the proportion was 78 percent.

New York State has the third-highest exoneration rate — behind Illinois and Texas — and it ranks second for the number of convictions overturned because of a false confession, with 44 such cases since 1992, according to the registry.

Ms. Clark’s office will not release the names of the defendants in the cases being reviewed, but records show that the detectives in Mr. Burton’s case were involved in at least three other homicide cases that have been challenged in court.

The detectives — Stanley Schiffman, Sevelie Jones and Frank Viggiano — declined to be interviewed or did not respond to messages, but in past court proceedings Mr. Jones defended their handling of Mr. Burton’s confession and claimed it was spontaneous and credible.

A lawyer for Mr. Viggiano, Kyle Watters, said his client denied wrongdoing. Asked about the review, Mr. Viggiano said, “I don’t think it’s fair at all.”

Ms. Clark, who sought to overturn Mr. Burton’s conviction, has defended the work of the detectives, two of whom later worked for the Bronx district attorney’s office as investigators.

“What they did was not necessarily wrong — that is the way things were done then,” Ms. Clark said in 2019 shortly after Mr. Burton’s exoneration. “For 1989, that was standard practice for the N.Y.P.D., but now we know better.”

Lawyers for Mr. Burton, however, likened the detectives on his case to Louis Scarcella, a Brooklyn homicide detective who has been linked to several wrongful convictions, and whose tactics led to a review of 70 murder cases. At least eight convictions have been overturned at the request of the Brooklyn district attorney’s office.

“The question that should be on everyone’s mind is how many other people were coerced into falsely confessing by these detectives and continue to languish behind bars?” said Susan Friedman, an Innocence Project lawyer who worked on Mr. Burton’s case.

With a woman dead, police turn to her teenage son

The events that led up to Mr. Burton’s confession are detailed in his lawsuit and in other court filings related to his exoneration.

Two days after Mr. Burton’s mother was killed, the detectives arrived at a house where he was staying with his godmother and asked him to come to the 47th Precinct for a polygraph, he said in his lawsuit. When he arrived, however, he realized that the request was a ruse to get him to the police station without a guardian.

Mr. Burton did not know he had become the prime suspect after a teacher mistakenly told the investigators he had missed a morning class the day of the killing. (The teacher later said he had actually been in school.)

The detectives thought the killer was “an insider” who had staged the crime scene, according to court papers filed to vacate Mr. Burton’s conviction.

The contents of Ms. Burton’s purse were scattered on the floor and her car was missing, but there was no evidence of rape or of a struggle, the papers said. Ms. Burton’s husband was in Jamaica at the time.

Two hours into the roughly six-hour interrogation, Detective Viggiano started to bluff the teenager, pretending there was evidence that he was the killer, Mr. Burton and his lawyer in the federal suit, Jonathan C. Moore, said.

In an interview, Mr. Burton recalled breaking into tears and crying out: “I didn’t kill my mom.”

It is not illegal in New York for the police to deceive suspects about evidence to get a confession. Although state courts have thrown out some confessions obtained through such tactics, they have not banned the practice.

Mr. Burton said in an interview and in court papers that Detective Viggiano had warned him that if he did not confess to the killing, he could still go to prison for the statutory rape of his girlfriend, who was 13, and that rapists were abused in prison.

If he confessed, the detectives said, his mother’s death would be treated as an accident in Family Court and he would be released to his father, Mr. Burton said.

“I said, ‘What do I have to say?’” Mr. Burton recalled in an interview. Then, he said, the detectives began to feed him a story, asking repeatedly: “At this point you did this?” He said he responded with “yes” and “no.”

Later, he said, they had him write down his statement and make a videotaped confession.

“The state of mind I was in,” Mr. Burton recalled, “finding my mother in that state, trying to process that — if they said, ‘We want you to say you were responsible for the assassination of J.F.K.,’ everything they told me to say, I would have.”

Instead of being taken to Family Court, Mr. Burton was paraded past a phalanx of flashing cameras and news reporters as he entered Bronx Criminal Court to be charged with murder as an adult.

Excerpted from: https://www.nytimes.com/2021/02/15/nyregion/3-detectives-obtained-a-false-murder-confession-was-it-one-of-dozens.html?fbclid=IwAR2P8Y2s4gTBs3roUEfw_mjH6Kolxq1y9UlMBsSnletP5fM6wZieLypVR2g

Investigations Start By Believing Trauma Informed Victim-Centered Investigations

PR: New Resource for Defense Attorneys: Mounting an Effective Defense in Proceedings Tainted by ‘Victim-Centered’ Philosophy

Post author By Edward Bartlett
Post date February 3, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New Resource for Defense Attorneys: Mounting an Effective Defense in Proceedings Tainted by ‘Victim-Centered’ Philosophy

WASHINGTON / February 3, 2021 – A new report released today addresses the growing influence of guilt-presuming “victim-centered” concepts in criminal proceedings. Titled, “Defending Against ‘Victim-Centered’ Proceedings: Guide for Criminal Defense Attorneys,” the report features strategies and verbatim statements to counter bias during each stage of the legal process:

Voir Dire
Opening Statement
Cross Examination: Complainant
Cross Examination: Investigator
Cross Examination: Prosecution Expert Witness
Closing Argument

“Victim-centered” approaches, also known as “trauma-informed” or “Start By Believing,” are gaining wider acceptance among police officers, prosecutors, and even judges in sexual assault, domestic violence, and child abuse cases:

Investigative bias by police officers has been linked to 35% of all wrongful convictions (1). But the International Association of Chiefs of Police makes the claim that “Victim-centered, trauma-informed approaches to crime can support victim recovery and engagement with the criminal justice system.” (2)

Prosecutors increasingly are invoking victim-centered theories. One of the most common theories is the complainant experienced “tonic immobility,” resulting in the person being unable to resist an impending assault. This claim has been refuted by the National Association of Criminal Defense Lawyers (3).

Judges are being urged to embrace victim-centered philosophy, as well. The website of the National Council of Juvenile and Family Court Judges, for example, reveals, “The NCJFCJ’s work with courts is informed by a focus on trauma using a universal precautions approach that assumes children and families involved in the court system have experienced some form of trauma that may be mitigated through court-based interventions.” (4) Policies that “assume” a party has been traumatized serve to vitiate the presumption of innocence and harm judicial impartiality.

Many authorities have voiced criticism of “victim-centered” and “trauma-informed” methods. Defense attorney Scott Greenfield ironically reasons, “The ‘trauma informed’ approach is not to ask, not to question, but to believe.…Who is the victim would seem to be a critical question, but ‘trauma informed’ policing says it’s the woman and should it be the falsely accused man, too bad, so sad. Take a bullet for the cause, guy.” (5)

Victim-centered methods remove a defendant’s due process right to a fair investigation and adjudication. Defense attorneys making discovery requests of police, prosecutors, and judges are urged to ask if they have received “victim-centered” training in order to assess the potential for actual bias and/or the need for recusal.

The new report, developed by SAVE, is available online: https://www.saveservices.org/wp-content/uploads/2021/02/Defending-Against-Victim-Centered-Proceedings.pdf

Links:

Investigations Law & Justice Sexual Assault Trauma Informed

The Metastasizing Cancer of Trauma-Informed Justice

Post author By Deanna Brown
Post date January 12, 2021

Sunday 10 January 2021
by Wendy McElroy

“Trauma-informed Justice” has percolated in academia and activism for decades. It is now knocking on the door of local police departments to demand changes that could upend the basics of how people relate to law enforcement. The approach converts the police into social workers or therapists and erases the due process upon which traditional Western justice hinges. It also increases the odds of wrongful convictions.

Trauma-informed justice—sometimes called “victim-centered” justice—involves an interview methodology in which the police prioritize empathy for an accuser who is automatically considered to be a victim. Rooted in trauma-informed feminist therapy of the 1960s, the methodology is especially favored for allegations of sexual abuse, such as domestic violence, where the accusers who come forward are overwhelmingly female. The methodology was refined by Russell Strand, U.S. Military Police School, who offered the Forensic Experiential Trauma Interview (FETI) as a way to question presumed victims without making them relive an assault.

According to trauma-informed trainers, the police should conduct investigations according to three broad principles.

The accuser is automatically assumed to be a victim even before any verification process occurs; the accused is automatically assumed to be guilty based on nothing more than an allegation. This dynamic reflects a core belief of the #Metoo movement: “Believe All Women.” The leading proponent of the trauma-informed approach is the End Violence Against Women International (EVAWI) group which argues that “believing” accusers “is the starting point for a fair and thorough investigation.” If EVAWI is taken literally, however, then further investigation seems to be unnecessary. An accusation is proof of guilt is grounds for conviction. Why investigate?
Contradictions, memory gaps, and inconsistencies in an accuser’s testimony are symptoms of deep trauma and should not be seen as disprobative. A much-quoted guide to trauma-informed justice states, “Trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory.” The true flaw in the process is said to be the police department’s approach which depends on what is called “peripheral information”–for example, a suspect’s description and the time or place of an alleged attack. Instead, the police should focus on eliciting non-linear information from the accuser by establishing trust and interpreting her memories.
Factors that cast doubt on the allegation, such as an accuser’s history of false allegations or drug use, are not to be considered. This creates an enormous problem if the case goes to trial, of course. The Arizona Governor’s Commission to Prevent Violence Against Women issued a letter to Arizona’s criminal justice agencies to explain, “In cases that proceed to trial, defense counsel likely could impugn investigators and claim that alternative versions of the crime were ignored and/or errors were made during the investigation as a result of confirmation bias created by the ‘belief’ element of the Start By Believing campaign.”

Trauma-informed advocates abandon the ethical code of conduct spelled out by the International Association of Chiefs of Police. Article 10, Presentation of Evidence states, “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice.” By this standard, everyone and their testimonies are to be treated equally.

Trauma-informed justice destroys the due process upon which Western criminal justice rests. The central principle of due process: an accused is innocent until proven guilty either by a standard of “clear and convincing evidence” or “beyond a reasonable doubt.” There must be proof before there is guilt and, as a matter of logic if not of justice, the accuser bears the burden of proof because she is the one making an affirmative statement. Start by Believing inverts this principle and logic, eliminating Western justice in the process.

Unfortunately, the trauma-informed approach is gaining momentum with training courses for law enforcement seeming to spring up everywhere. Most are held at universities where trauma-informed procedures have dominated Title IX investigations for the last decade; these investigations address allegations of sexual misconduct on campus and a “believe the women” ideology dominates. The spread of FETI is yet another instance of social-justice policies spilling from campuses out onto Main Street.

Other factors contribute to the spread. A revolution in how law enforcement is perceived has occurred, with “Defund the Police!” being one of the loudest aspects. A righteous indignation at police brutality and immunity is fueling a rebellion against the status quo of law enforcement. Trauma-informed justice also grows because it is still grassroots; activists go directly to law enforcement agencies. This makes it largely invisible in the media and to the public from which it encounters little resistance.

This needs to change. Trauma-informed justice must be opposed on three grounds: ethically, on the science, and on practicality.

The ethical case against trauma-informed justice has been made already: it introduces systemic bias into what should be an evidence-based, honest, and impartial process; it embeds unequal treatment under the law; it increases the likelihood of false convictions. It is unfair.

The increased likelihood of false convictions needs to be stressed because the trauma and tragedy of false convictions is often ignored or diminished. This will proliferate because trauma-informed politics encourages law enforcement to become de facto advocates for an accuser and presume the guilt of an accused.

A commonly stated goal of the trauma-informed approach is to secure a “successful prosecution”, which refers to securing a conviction but makes no comment on whether the defendant may be innocent. After all, Start by Believing declares all accuseds to be immediately and automatically guilty, which obviates the need to discuss their possible innocence. When the police pre-emptively decide that an accused is guilty, research shows what common sense suspects. The police look for supporting evidence and tend to dismiss counter information due to confirmation bias. Again, wrongful convictions become more likely, especially since EVAWI instructs investigators on how to assist prosecutors in countering “potential defense strategies.”

Another reason trauma-informed justice gains ground: law enforcement is asked to listen “to the science.” The science of traumatized people remembering events in a disjointed or inconsistent manner is presented as “settled.” This is not true. Unbiased studies contradict trauma-informed claims. Daniel Reisberg’s “Emotion’s (Varied) Impact on Memory for Sexual Misconduct” found, for example, “These data suggest that traumatic events are likely to be well remembered.” At bare minimum, the nature of traumatized memories is a matter for vigorous debate and untested ideology-based theories should not be fixed into policy.

The current standard police procedure is called the Reid method. It has three steps: factual analysis, interviewing, and interrogation. The factual analysis eliminates suspects and develops leads. Interviewing elicits investigative and behavioral information through non-accusatory dialogue with accusers, suspects, and witnesses; the interview has nine well-defined stages. Interrogation involves subjecting a confirmed suspect to accusations in which the investigator claims to know the person is guilty and angles for a confession. Police investigations may be imperfect but they have been tested and streamlined by time, with legal challenges providing protections to those being questioned.

In its “Report on the Use of the Forensic Experiential Trauma Interview (FETI) Technique” (2015), the United States Air Force Office of Special Investigations summarized its reluctance to replace an established protocol with trauma-informed techniques. “We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method that is supported by the latest scientific research (the Cognitive Interview), in favor of an interviewing method that is loosely-constructed, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.”

Social workers and therapists may need to Start By Believing the person they seek to heal. But the police are not mental health workers; they deal in cold, hard facts that have no gender or race. Investigators need to discern what is true or false about a situation rather than respond emotionally to it. In the process, some officers make mistakes and some act with malice; officers are human beings with all the flaws of shared humanity. The incompetence or malfeasance of individuals must be remedied but neither one is an indictment of the principles of Western justice. Turning accusations into convictions only makes prisoners of innocent people.

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