How the ‘witch Hunt’ Myth Undermined American Justice

By Jason Berry
Daily Beast
July 12, 2014

http://www.thedailybeast.com/articles/2014/07/12/how-the-witch-hunt-myth-undermined-american-justice.html

In 1993, a young man dying of AIDS gave a tearful interview on CNN after filing a lawsuit alleging that Chicago Cardinal Joseph Bernardin had sexually abused him many years before. Bernardin defended himself eloquently at a press conference. Several months later, when reporters unearthed information about plaintiff Steven Cook that cast doubt on his veracity, he withdrew the suit, saying he could not trust his memory.

Newsrooms turned on a dime. Time’s cover pictured Freud as a disassembling picture puzzle. National coverage shifted from a focus on bishops concealing predators to “false memory,” hysteria fueled by the suggestibility of young victims, faulty investigators, quack therapists, and a court system hard-pressed to safeguard presumption of innocence.

In 1996, Philip Jenkins, then a history professor at Pennsylvania State University, argued in Pedophiles and Priests that the earlier coverage of clergy abuse was a “putative” crisis, one “constructed” by the media and church critics.

In 2002, a Boston Globe investigation of such cases ignited a chain reaction in many newsrooms about a deeply rooted culture of churchmen concealing abusers that the Vatican ignored. The “putative crisis” resembled a construction of its author. Jenkins had written entirely from secondary literature—no interviews or excavation of legal documents. He has since become a $400-an-hour expert witness for the church in lawsuits filed by abuse victims, according to his own testimony.

Jenkins drew a parallel between the Salem witch trials and the 1984 acquittal of two defendants in a Minnesota day-care-center case in which charges against 23 other people were also dropped after a botched investigation. But the lead defendant was convicted, and spent years in prison, as Ross E. Cheit notes in The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children. This 508-page book examines media coverage of prosecutions of abuse at day-care centers in the 1980s and ’90s.

A professor of political science and public policy at Brown University, Cheit has 68 pages of footnotes, with an array of legal citations; though the narrative is sometimes plodding, and at times redundant, Cheit mounts a rigorous argument that the witch-hunt—innocent people persecuted by a legal system out of control—is a concocted myth.

Cheit is no stranger to litigation, having sued the San Francisco Boys Choir in 1994 for “rampant sexual abuse of boys, including me,” he writes, “fighting successfully to keep from having the entire matter sealed and insisting on a public apology to settle the suit.” He writes, too, that he does volunteer work with sex offenders in a Rhode Island prison.

Cheit’s careful, probing approach is counter-cultural to an age when information moves at amazing speed with fewer guarantees of accuracy than in newsrooms of yesteryear. Legal proceedings are about process; so is The Witch-Hunt Narrative. Cheit wants us to make sense of the forest and the trees.

The case that spawned the media notion of a witch hunt was the McMartin Preschool, where allegations in 1983 fell within the jurisdiction of the Los Angeles District Attorney. As initial evaluations of children were underway, parents contacted a TV reporter. “The DA’s office was caught unprepared when the media spotlight hit them on Feb. 2, 1984,” writes Cheit, “suggest[ing] there was widespread sexual abuse at the McMartin Preschool and the government was dragging its feet.”

Cheit explores the difficulty child-care specialists faced in determining what happened; videotaped screenings morphed into forensic interviews, and became something they were never intended to be: evidence in court. A “runaway train” grand jury indicted seven people including Virginia McMartin, the wheelchair-bound grandmother for whom the school was named. Much of the suspicion centered on her grandson, Ray Buckey, who spent five years in jail during the longest and perhaps most costly preliminary proceeding of a criminal case in California history. Charges against five people were dropped. Buckey and his sister stood trial.

McMartin became its own media narrative. 60 Minutes did an expose of the legal malfunctions, all but exonerating the defendants; Los Angeles Times media critic David Shaw won a Pulitzer for attacking his own paper’s coverage. Cheit’s painstaking account of the chaotic pretrial saga ends with a jury acquittal of Buckey and his sister on a host of charges. The jury was unable to reach a unanimous verdict on 12 charges against Buckey. He was retried, again acquitted, though not unanimously. But “not guilty” is not the same as innocent, a juror grumbles. As Cheit reviews earlier complaints against Buckey for “inappropriate exposure of his genitals” that were not reported to police, a reader has to wonder.

“The McMartin case began as a morality play about the failure to protect children,” he writes. “It ended as a morality play about the failure to protect civil liberties…[and] the complete negation of the evidence of abuse.” That critical distinction is a leitmotif through the book. Society craves black-and-white narratives where good triumphs, criminals go down. It is much harder to accept the gray area of resolutions—as in the O.J.Simpson case, when a man widely assumed to be guilty was acquitted in a circus-like courtroom.

Cheit criticizes journalist Debbie Nathan for her phrase “junior McMartins” in describing “a nationwide rash of similar cases.” Nathan published a 1995 book with defense attorney Michael Snedeker, Satan’s Silence: Ritual Abuse and the Making of an American Witch Hunt. Cheit concedes that charges in some cases should not have been filed, but debunks a key source of Nathan’s reporting: a list of 36 cases cited in a 1988 Memphis Commercial Appeal series called “Justice Abused: A 1980s Witch-Hunt.”

“What kind of witch-hunt or ‘justice denied’ results in no charges whatsoever?” he writes. “Sixteen of the cases never got to the stage of a trial; charges were dropped in some cases and they were never brought in others. One-third of the cases resulted in a conviction, seemingly undercutting the claim of ‘justice abused.’ “

Accusations of ritual abuse and grisly cult behavior with Satanic overtones have been discussed at conferences on child abuse and treated in research literature since the mid-’80s. Kenneth Lanning, an FBI agent who specialized in child-abuse investigations for many years, found no evidence “of a well-organized Satanic cult” and said so in a research guide. And yet, writes Cheit, even though the FBI guide became Exhibit A for those scoffing at charges of Satanic abuse, “it actually recognized many activities described as ritual abuse and it cautions that there might be plausible explanations for children making such statements in other cases about sexual abuse.”

The absence of a well-organized cult does not mean the absence of ritualized abuse. Cheit provides several pages of numbing case studies on people who were prosecuted, sometimes with testimony from their traumatized children who finally grew old enough to unburden themselves. In Florida, a monster named Eddie Lee Sexton Sr. “ran his family like a cult, subjecting them to the kinds of rituals that Nathan and others claim is only imaginary,” Cheit reports. Sexton’s children showed authorities the burial place of an infant he had murdered. “Sexton, who told his children he was the devil, inflicted horrendous torture on his family, including sexual abuse.”

The most controversial case that Cheit explores, and the one he calls “the turning point” in the journalistic development of a witch-hunt narrative, is that of Margaret Kelly Michaels. In 1985, Michaels was arrested on the testimony of children at a New Jersey day-care center where she had worked. An attractive woman in her twenties, Michaels was convicted on 96 of 131 counts, with young children testifying. Michaels took the stand and denied the accusations.

Michaels was imprisoned while awaiting trial. An inmate she befriended would later testify that Michaels told her, “I didn’t mean to hurt those children.” The inmate had already been sentenced and made no deal with prosecutors. Cheit continues:

The jury did not hear additional evidence concerning disturbing sexual behavior in the Michaels family. The state offered evidence about her being groped by her father during an early jail visit. The incident was documented at the time and the prosecution found out about it only because a correctional official in a barbershop was heard talking about it… The judge deemed it too prejudicial to present to the jury.

Michaels went to prison. Two books on the case appeared in 1990, which I reviewed for the St. Petersburg Times. Nap Time by Lisa Manshel, a young Harvard-educated freelancer, covered the trial and profiled several parents and the impact on their families, with the legal proceedings as narrative spine. Not My Child by Patty Crowley [a pseudonymn], a shorter and more gripping book by one mother, herself a news editor, focused on her family’s struggle as her daughter testified.

Debbie Nathan championed Michaels in a 1988 Village Voice piece.

“The local reporters who sat through the trial came to think there was substantial evidence of guilt; none editorialized against the prosecution or the verdict,” writes Cheit. “Nathan characterized them as gullible. Her article about the Michaels case, written without access to the complete trial transcripts, was based largely on an interview with Michaels and material on the children’s interviews she obtained from the defense…. The heart of Nathan’s argument was that the investigative interviews were leading and suggestive.”

Nathan attacked the state’s interviewing techniques as leading. Cheit credits a Harper’s article on Michaels by Dorothy Rabinowitz with “creating the witch-hunt narrative that eventually became the conventional wisdom about this case….[and] a watershed moment in the media. It helped mobilize a group of New York intellectuals and civil libertarians” who established a defense fund for a Michaels appeal. As in the McMartin case, New Jersey investigators confronted a scope of accusations that posed uncommon challenges: How to sensitively treat kids who might need counseling for abuse, assess their plausibility, and work with prosecutors if a pattern of criminal behavior seemed likely? Unlike McMartin, the Michaels prosecution was not blindsided by media coverage, went to trial in a timely manner, and secured a conviction through children’s testimony.

Cheit suggests that the heavy media attention favorable to Michaels in the buildup to the 1993 New Jersey appellate-court hearing planted seeds of skepticism at the appellate bench. There’s no way to prove that, but given a media market like greater New York that includes the Jersey suburbs, it seems quite plausible.

“The basic claim of the witch-hunt narrative is that the children in the Kelly Michaels case were subjected to repetitive interviews before disclosing sexual abuse,” writes Cheit, in assessing articles published not by journalists covering the trial, but writers who several years later investigated the state investigation before the trial. He continues:

Rabinowitz argued that the charges were the product of investigators “who convinced parents and children alike.”

She claimed the children were “confused, had nothing to say, or flatly denied that anything had happened to them.” These descriptions are patently untrue of the three boys whose statements formed the basis of the original indictment.

Cheit devotes a long section to parsing children’s statements and their subsequent trial testimony, the investigators’ methodology and the role of expert witnesses. He argues that the appellate decision, which reversed the conviction because of improper questioning techniques in securing the indictments, does not change the consistency of statements made by certain children. In a book that deals so deeply with legal process, Cheit insists that an investigation later deemed to be flawed does not equate with actual innocence.

Cheit is emphatic about legal records for his base line. A leitmotif on journalism threads through this often-byzantine narrative. Who shapes what the public comes to see as truth, and how truthful is that truth?

The claim that the [Michaels] jury was kept in the dark about the investigative interviews is false… But the myth lives on. “I saw what jurors did not see,” Rabinowitz asserted on CNN, staking a claim to having reviewed investigative techniques that were kept from the jury. But the jury listened to tape recordings of the investigative interviews and were supplied with the same transcriptions that the defense later attached to their appellate brief… The prosecution did not want the jury to think what Rabinowitz later urged the public to believe: that the state had tried to keep the tapes out.

Superior Court Judge William F. Harth, who tried the appeal, read from parts of the transcripts that the preschoolers gave before the grand jury testimony. He decided that more than 20 of the taped interviews by state investigators were leading, questions asked in order to get a response more concerned with an indictment than a witness’s truth. The appellate drama that eventually set Kelly Michaels free had its own bizarre twist.

All of the court records of that important pretrial hearing disappeared or were mislaid. When it became clear on appeal that the official record of this crucial fact-finding hearing was missing, the state moved “for a limited remand before the court to have the record reconstructed.”

The prosecutors, understandably, wanted as full a record as possible; but the Appellate Division said no.

This freed the appellate court to make its own factual findings, unconstrained by what the judge who actually heard the tapes had concluded. Were it not for these highly unusual developments—both the loss of the transcript and the refusal of the Appellate Division to remand the issue to the fact-finding tribunal for the creation of a full record on appeal—the case could not have been overturned on the appellate court’s own decision that the interviews were overly suggestive.

In 1994, the New Jersey Supreme Court sustained the lower court’s decision, holding that Michaels could only be retried if the state first conducted a hearing to determine whether the original investigators had tainted the young witnesses. The children who gave the first statements were now entering adolescence. Memories fade. The state, after consulting families, decided not to attempt a retrial of Michaels.

Kelly Michaels became a mini-celebrity on release, a victim of runaway investigators. Her Oprah interview is on YouTube. Ross Cheit is careful not to say that Michaels was, or is, guilty. But, he writes, “Kelly Michaels won her appeal in the media, and then she won in court… But the claim that it was a movement toward rationality and common sense is contradicted by the facts in the case.”

Cheit’s revisionist history is grounded in a documentary record and obsession to distill truth from process; it is likely to be a controversial book, but it is one that journalists should embrace.

Jason Berry was coproducer of the Frontline film, “Secrets of the Vatican.” His books include Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children and Render unto Rome: The Secret Life of Money in the Catholic Church, which won the Investigative Reporters and Editors 2011 Best Book Award.