Texas Justice Learning Curve part one
I have not blogged in 2015 because I have been researching a criminal case from 20 years ago. In so doing I have learned much more than I needed about life in prison, the nature of child abuse, the nature of confessions, custodial interrogation, how the poor are poorly served by our criminal justice system, and what remedies might be available. Mitch Edward’s story needs to be told. Unfortunately the features of it are all too common.
None of this was important when I met him in November 2003. He was just one of 42 guys in white who had signed on for a three day Kairos weekend at Beto. I was serving on a team of men and women bringing God’s unjudgemental and forgiving love to men who hadn’t received anything positive in a long time. We were in the “Chapel” at the George Beto Unit of the Texas Department of Criminal Justice. Imagine a large gymnasium with metal girders overhead and wire covered circular lights hanging down every 20 feet. Brown industrial carpet covered the floor, concrete block walls that over the years have become decorated with Biblical murals and panels from the Revelation. It is not a warm place but compared to the insanity and violence outside its doors but within the prison walls it is a haven or heaven.
What did you do? How long are you in? These are the two questions the curious want to know about prisoners. They are also the two questions Kairos volunteers don’t ask. Why? Because those questions are about YOU and what YOU want to know, to satisfy YOUR curiosity. The Kairos weekend in the Chapel at Beto was about THEM. Those questions for Mitch would come later.
So 42 of our brothers-in-white file into the Chapel on a Thursday night full of hostility and swagger: 14 Blacks, 14 Hispanics and 14 Anglos thrown together randomly by the Chaplain. And during those three days an amazing transformation took place. I have seen it many times and it NEVER fails. It may occur within the first 24 hours or not until the last day, but it ALWAYS happens. Hope and acceptance and forgiveness and tears and brotherhood enter the Chapel. The religious among us ascribe it to the Holy Spirit; the skeptic to group psychosis. Whatever its source, it may be the most powerful emotional experience I have ever observed and felt. And because of that experience Mitch and I became friends. We had so little in common – a thirty something with an eighth-grade education and a sixty something physician. And because of that bond I have become more and more interested in his past and his future.
An Unbelievable Crime
One of the strong points of Kairos is that those of us who are on “the outside team” during the three and a half day weekend commit to returning monthly for a year to meet with our “brothers in white” in the prison Kairos community. And so for several years I continued to see Mitch monthly on Saturday morning. We began to correspond. As the stack of letters grew I learned more and more about Mitch and life in prison. They say old age is not for sissies. Prison life is exponentially so. There was a film, Scared Straight, in the 1970 about juvenile defenders who visited prison, to hear prisoners’ stories and experience prison life. The premise being that exposure would frighten kids into turning away from a life of crime. Unfortunately all the evidence shows it doesn’t work and may even be counterproductive. Well, I can tell you that it scares me. Sleeping in a 6 x 9 cell with a stranger who is of uncertain emotional makeup. Often for 23 hours a day for weeks at a time. Beto houses over 3400 testosterone driven young males and is understaffed. A dry California forest is less combustible.
But in between the prison stories I gradually learned Mitch’s. By his own admission he had been uneducated, irresponsible, and a poor parent prior to his incarceration in 1996. He and his common law wife Dusty had two children and a third on the way at the time of the crime for which he was convicted. His son Travis was fifteen months old. His daughter Shelly was almost two and a half. She had been born prematurely and spent time in the neonatal ICU in Galveston. She was left with severe retardation, blindness, and near deafness. Self-mutilation had been observed. The records are replete with testimony from social workers, protective service officers, and physicians describing neglect of the children and filthy conditions in the apartment in South Texas. Mitch was the primary caretaker for the children as Dusty worked most nights at Sonic. Mitch did not work. The reason given was a back injury. However, he was able to go fishing, attend rock concerts, and go to Arkansas to work on his grandmother’s house. That he was lazy was an opinion not difficult to support.
In 2009 I secured his trial transcript from the Appeals Court in Houston and what I read shocked me. He had been convicted of an almost unimaginable crime – sexually abusing his daughter Shelly. Found guilty and sentenced to life in prison. There was a confession, and testimony from two physicians describing the abuse. “Well that’s it,” I decided. I put the transcript away.
But over the years I’d get it out occasionally. Mitch and I continued to correspond and once when I was in the area I dropped by his court appointed attorney’s office, a one story building in a strip mall. It was a Saturday morning. He came to the door in plaid Bermuda shorts and a white undershirt. He was about fifty, bald and barefoot. We sat in his waiting room. He remembered Mitch. “Who knows?” was his response to my question about Mitch’s guilt. “I do remember telling him, ‘Don’t pick up the lotion when the DA hands it to you. But he did. They even brought the little girl into the courtroom in her wheel chair. I knew then we were sunk.’”
In his letters Mitch had complained about his attorney’s poor representation. After meeting him I was intrigued. I’d heard all my life about South Texas justice. Maybe there was more here than I initially thought. I drilled a little deeper.
Sexual Offenses and Offenders
Dr. Karen Terry in her book Sexual Offenses and Offenders states that “(child molesters) tend to be socially inept in adult relations, have low self-esteem, feelings of inadequacy, and a sense of worthlessness and vulnerability.”
Experts usually classify childhood sexual abusers into two categories: fixated and regressed.
Fixated offenders have a persistent attraction to children, almost exclusively, and tend to choose extrafamilial victims. Many think the late Michael Jackson fit in this category.
Regressed offenders often abuse when stressed and/or given easy access, often their own children. But this behavior is a “temporary departure from their attraction to adults.”
The FBI has expanded on this classification. One regressed subtype labelled Sexually Indiscriminate caught my eye. “Offenders mainly interested in sexual experimentation, and abuse children out of boredom.”
An unemployed father who is the primary caretaker could fit this description, I thought.
So how was Shelly’s abuse discovered?
Two letters from Dr Swallow to the police are included in the records I received from Houston. In one she describes a September 25 visit where she discovered a dirty diaper and upon cleaning Shelly’s genitalia noted a vaginal laceration with bleeding and some rectal laxity. She did a vaginal culture which grew chlamydia, a sexually transmitted disease. No venereal warts were described.
Mitch makes two observations about that day. First this was the first time Dusty wanted to go with him to take the children to the doctor and secondly Dusty bathed both children prior to the doctor’s visit.
Dr. Swallow told the couple she felt Shelly had been abused and she contacted Child Protective Services and the Police.
On September 29, she examined Mitch Edwards, which many observers have found unusual – for the same doctor to examine both victim and suspect. Nevertheless she described two small clusters of venereal warts at the base of Mitch’s penis. A culture for chlamydia was negative.
There are no photographs documenting the abuse of Shelly or the venereal warts on Mitch.
On October 4, Mitch was brought in for questioning. He made a voluntary statement.
RETURN FROM A SIDE TRIP
After posting THE DISCOVERY I was troubled and realized I had started down a path that ended on a high cliff that I would have to jump off. I had graphically described the anatomy of childhood abuse. Two things occurred to me. First it is a depressing and nauseating subject. And secondly why would I want people to waste their already busy lives reading about it. I slept poorly last night struggling with what to do. Maybe Mitch’s case was of interest only to me and I was wasting reader’s time (and mine) writing about it. But in my tossing and turning I stepped back from the cliff and looked at a wider vista. What was it I did want to say about this case? Why was I fascinated by it? Write about that my sleepy subconscious said. I went back to my introduction to Texas Justice Part One.
I have not blogged in a while and decided to use the blog to begin telling about my friend Mitch. In so doing I want to explore life in prison, the nature of child abuse, the nature of confessions, custodial interrogation, how the poor are poorly served by our criminal justice system and what remedies might be available. Mitch’s story needs to be told. Unfortunately the features of it are all too common.
So for now I want to make some general statements about childhood sexual abuse and move on back down the path to the bigger issue in the paragraph above – how the poor are poorly served by our criminal justice system.
Childhood sexual abuse is a landmine that has ruined many lives of children and adults. Who knows the incidence of childhood sexual abuse? As Mark Twain said, “There are three kinds of lies: lies, damned lies, and statistics.” But according to Dr Terry, “12.8 percent of females and 4.3 of males reported a history of sexual abuse during childhood…. Studies have found that sexual offending does not discriminate on the basis of age, race, ethnicity, socioeconomic status, educational level, or any other stable characteristic for either offender or victim.”
But delve deeper and the subject becomes murky. Memories of abuse and anatomical observation are both highly unreliable.
I once had a patient, Ann, who had grown up in an affluent family who as an adult was a self-abuser and reported that as a child her father had been involved in a satanic cult and placed her in a coffin with snakes and had sexually abused her. She was referred to me by a psychologist who was convinced that this had occurred. Only when Ann’s sister denied that anything of the sort had ever happened was Ann’s borderline personality disorder diagnosed.
In Mitch’s case memory was not an issue but anatomical observation was. The testimony of two physicians describing Shelly’s sexual abuse was potent evidence used to convict Mitch. Dr. Swallow in September and Dr. Vaughn, another pediatrician, in November both testified to “severe” abuse. But a Child Protective Services pediatrician examining Shelly, 11 days before Dr Vaughn, reported no evidence of abuse. He was not called to testify.
In an article I found in the Journal Issues in Child Abuse Accusations titled Medical Considerations in the Diagnosis of Child Sexual Abuse, Dr.Felicity Goodyear-Smith states “Many findings promoted as physical indicators of abuse have been shown to be present in nonabused children.”
So for now let’s put the anatomy of child abuse aside and turn to the investigation.
After Dr. Swallow notified the police and CPS the two agencies became involved in the investigation in late September. Mitch was told that he could not spend the night in the apartment with the children. CPS had been to the apartment previously but now they began to question Dusty, Mitch, and Lance in earnest about who might have abused Shelly. On October 4 Mitch gave a voluntary statement after being read his Miranda rights. The children remained with Mitch and Dusty but Mitch was prohibited for to spend the night with the children present.
The investigation was instituted by Dr. Sparrow’s observation on September 25th. Whether she felt that Mitch had done it from the beginning is difficult to say. But there is no question that her letters and testimony left no doubt about her feelings. Some would say she was judge, jury, and executioner. She didn’t like Mitch and had ample reason for those feelings. She had delivered Shelly 3 months prematurely. Shelly had spent months in the NICU (neonatal intensive care unit) and had needed surgical correction of pyloric stenosis, a chest tube, and treatment of recurrent infections. At twenty seven months she was blind and severely developmentally delayed. She would have been a challenge for parents with far more resources and parenting experience than Mitch and Dusty. Dr. Swallow had been perpetually frustrated by the parents’ lack of care and apparent concern for Shelly. They missed appointments and when rehabilitation services were available failed to follow through. Social workers, nurses, and child protective case workers made several visits to Mitch and Dusty’ s apartment and noted filthy conditions that caused concern. Ash trays, cigarette butts, and dog feces were often seen on the floor. The subtext of all of Dr. Sparrow’s notes is what unfit parents Mitch and Dusty were.
Dr Sparrow Testimony:
A: I explained to the parents that she had been sexually abused and that these findings were to my mind, sexual abuse.
Q: What, if any reaction did Mr. Edwards the defendant have at that point?
A: He blanched, meaning he went very white and he looked around and looked down.
Dr. Sparrow’s letters.
Mitch seems rough in his handling of both children… As soon as we have received Mitch’s (chlamydia) culture results, I will forward results; however a negative finding would not be conclusive…
Since Mitch and Lance were the only caretakers, besides Dusty, of Shelly in the forty-eight hour period prior to my initial examination I must conclude that the father Mitch is without doubt the perpetrator of Shelly’s sexual assault.
It has always puzzled me why one of the most important jobs we are given in this life comes with so little training. There are parenting classes, when damage is already occurring, but most of us muddle on with our parents (if any) as our role models. Ignorance begats ignorance, damage begats damage. There is no question that Shelly was being damaged. Nature and nurture were both piling on her frail body. But was sexual abuse occurring?
Mitch from his jail cell writes that he was less than an ideal parent but that things were not nearly as bad as described.
A letter excerpt from 2013
A physical therapist (who visited us for Shelly’s therapy) felt that since the kids only wore diapers in the house and Shelly was so developmentally delayed that we were neglectful. However, every time (twice) CPS showed up the kids were happy, healthy. The house was clean, kids were clean and there was plenty food. One time we had no $, six diapers left, and I was smashed for Shelly being dirty for more than 5 min. I wasn’t abusive and I wasn’t the best parent I’ll admit that but the kids never went without more than a few hours with or without $. I will leave you with this on this matter. Between the physical therapist and motor skills lady from the Annex, my mother, Dusty, and Lance (roommate) and Jessica (a friend’s girlfriend stayed with us some) no one seen any sexual abuse or made any complaints to CPS. Just the one therapist. She was three times a week and the other lady was two times a week – home visits every day of the week. (No one saw any sexual abuse.)
Not surprisingly he denies sexual abuse. But, this is a surprise; he does not feel that sexual abuse occurred at all. We will delay that subject, which will require some graphic detail, as long as possible.
For this blog let’s examine the contention that the presence of Chlamydia trachomatis was evidence of sexual abuse.
Chlamydia trachomatis is a bacterium that manifests itself in humans in two primary ways. It is the most common reported sexually transmitted disease (STD) in the US. It is also a cause of blindness in the third world.
The contention by Dr. Sparrow that Shelly’s “positive culture for chlamydia” was definitive proof that abuse had occurred is one of the factors used to convict Mitch. The others which we will examine in the future are the confession, the signs of sexual abuse, and venereal warts.
In Dr. Sparrow’s letter of October 2 she stated that chlamydia is ALWAYS a sexually transmitted disease.
“In summary, Shelby shows physical evidence compatible with acute sexual assault. Culture positive for a disease that can only be sexually transmitted (Chlamydia) reiterates this conclusion definitively.” (My emphasis)
But that is not the case. Chlamydia is not evidence of sexual abuse. An article from the Journal of Pediatric Infectious Disease says it clearly.
“The isolation of C. trachomatis from a rectogenital site was not limited to children with recent sexual abuse…”
Hammerschlag et al Pediatr Infect Dis. 1984 Mar-Apr;3(2):100-4.
Dr Sparrow states “Culture positive,” meaning that Chlamydia grew and was isolated from Shelly. But in fact the culture was negative. No Chlamydia grew. Only a screening test, the Chlamydia probe, was positive in Shelly. The Chlamydia Gen-Probe has only 75% accuracy. Other bacteria in the area can cross react giving a false positive test.
“Gen-Probe had an overall sensitivity of 74% and specificity of 75%.” Gratton et al Mol Cell Probes 1990 Feb;4(1):25-31
The contention that “Culture positive” chlamydia was present and proved sexual abuse could have been easily refuted. It was not.
But on November 9th three critical things happened. Shelly was diagnosed with venereal warts, CPS removed the children from the apartment, and Mitch confessed.
Wart Was That?
Mitch was taken to the police station on November 9th because Dr. Sparrow had told Detective Mathis that Shelly had venereal (genital) warts. The whole tenor of the cases changed with this one event. Dr. Sparrow said that without a doubt Mitch was guilty. Dusty changed her mind about Mitch’s innocence. Detective Mathis felt that Mitch was now a “good suspect.” (He would not admit to Mitch’s defense attorney that he was the “prime suspect”, although he now obviously was.)
On September 29 Mitch was diagnosed with condylomata (I will use condylomata, genital warts, and venereal warts synonymously…sorry). No photos were taken because Dr. Sparrow testified the office camera was broken. Shelly was diagnosed with venereal warts by Dr. Sparrow on November 9 but not on September 25. The office camera was apparently still broken in November.
Condylomata accuminata are warty like growths that are caused by the Human Papilloma Virus (HPV). HPV is a DNA virus that infects skin and mucous membrane cells. There are over 40 subtypes. Some of these are responsible for cancers of the cervix, genitalia, and anus. The HPV causing genital warts is not one of the precancerous type. Most all of the HPVs are sexually transmitted. Venereal warts are highly contagious and difficult to eradicate. Although spontaneous regression theoretically could occur I have personally never seen it or heard of a case of spontaneous disappearance. Freezing with liquid nitrogen, chemical peeling, or surgical removal are typical methods used to treat these warts, which may or may not be successful. I remember treating a man with multiple condylomata for several months with freezing and the chemical podophyllin before we both gave up and he did not return for treatment. They are hardy little growths!
So did Mitch and Shelly have these hardy growths? Maybe. But my contention is that they did not. Either Dr. Sparrow lied or she is inexperienced in examining men. She is trained as a pediatrician/gynecologist and I think she mistook a normal anatomical variant for venereal warts on Mitch. As I will show in a later post Shelly was not found to have venereal warts by a CPS intake physician one day after Dr. Sparrow claims Shelly had them. A prosecution hired physician who testified to “severe abuse” ten days later made only a passing reference of seeing “venereal warts, somewhere around 6:00 or 7:00 o’clock on the clock face.” And again there are no photos Neither Mitch nor Shelley was ever treated for them. After his arrest and incarceration several physicians examined Mitch and no doctor or nurse saw any evidence of Condylomata.
Two drawings in Dr. Sparrow’s charts of father and daughter describe what Dr. Sparrow said she saw. In Mitch’s case I think what she saw were sebaceous glands that can be mistaken for condylomata. Rather than show these images here I have uploaded the drawings and pictures to davidhaymes.com > Other Writings if you wish to see them.
Much time was spent by the DA at trial establishing that Mitch had Condylomata in September and the testimony by physicians that none were seen in November did not contradict that. It was alleged that Mitch could have removed these himself, with nail clippers or scissors.
None of these points were brought up by the defense attorney.
And so my belief in Mitch’s guilt wavered again.
I have gone back and forth about Mitch’s guilt or innocence. I can explain the Chlamydia. I can even explain the genital warts. I can describe inconsistencies in the testimony (as you will see). But when I read Mitch’s confession…It is too graphic…too upsetting. People just don’t confess to things they didn’t do, right? Apparently they do.
A story from Africa
While in Kenya a few years ago a group of Americans went to a prison near Kitale, Kenya. Their pastor leader told them to bring nothing into the prison –no camera, passport, wallet, purse…nothing. As they were leaving one of the group said to the leader. ‘Somebody stole my wallet while we were in there.’ He was told to chalk it up to experience because he’d been warned. But he didn’t. He went back and told the warden. After they returned to their hotel the leader got a phone call. “Pastor! It’s a miracle. Jesus has taken my wallet from the prison and placed it back in my room.” (He was serious)
I won’t tell you what the pastor said but it was not a Christian phrase. He took the man back to the prison to apologize. The warden thanked them but said he already had three men who had confessed!
In 1983 two men with marginal IQ’s confessed to the rape and murder of an 11 year old girl. Confessed! And received a “fair” trial.
Several months ago they were exonerated due to DNA evidence linking a known rapist to the crime.
In 1994 the Supreme Court of the United States (SCOTUS) turned down a request to review the case. In the minority opinion, Justice Blackmun felt that due to their intellectual deficiencies that the death penalty met the criteria for “cruel and unusual “punishment. One of them had been sentenced to death and was North Carolina’s longest death row inmate. For the majority, Justice Scalia, in refusing to consider the request, felt the death penalty was appropriate for the most heinous of crimes, citing this case for which these two were (later) exonerated.
Two things that are pertinent for me in Mitch’s case are the confession and the trial. Many people, including some in law and law enforcement, incorrectly assume that if a confession is present and a trial finds guilt the story ends there. That is not the end of the story. Read a trial transcript and you’ll discover that trials are about winning and losing, not about fairness and justice.
In an article entitled “Only the Guilty Would Confess to Crimes”: Understanding the Mystery of False Confessions (The Jury Expert November 28, 2012) the authors state in their introduction:
It is naturally hard to understand why anyone would confess to a crime they had not committed. Yet, in North America we can trace false confessions back to at least 1692 and the Salem Witch Trials where “large numbers of mostly women were tried for witchcraft on the basis of confessions extracted by torture and threats.”
More than 300 years later, people continue to falsely confess to crimes ranging from academic cheating to murder. But the mystery of why someone would falsely confess persists. Unlike the Salem Witch Trials, most false confessions today are provided under psychological duress, but without torture or threats of physical harm. Do the generally accepted modern police methods still produce false confessions, or does the responsibility for false confession fall entirely on the confessor?
There is a tendency to believe “others” might well confess under duress–but most people think they, themselves, would never do such a thing. This belief illustrates the reality that most of us have no idea of what it feels like to undergo an interrogation. More than 80% of those taken into custody by the police waive their Miranda rights.
Innocent people think, since they did nothing wrong, that cooperating with the interrogators will simply expose their innocence. Instead, waiving their right to silence exposes them to the risk of false confession. Those who have a criminal past are much less likely to waive their right to silence.
Still, why would anyone confess to something they have not done? If you believe justice will prevail, why would you confess, especially to a very serious crime? There are a number of possible reasons, but the most compelling relates to the power of the interrogation process. The majority (about 65%) of suspects in custody either “fully or partially confess” to the police. Something powerful clearly happens during the interrogation process itself.
The Innocence Project has cleared 297 former prisoners found guilty via trial in the criminal justice system. Their FAQ (frequently asked questions) on false confessions offers the following summation of false confessions:
“Over 25 percent of the more than 290 wrongful convictions overturned by DNA evidence in the U.S. have involved some form of a false confession.”
So my pendulum swings back to INNOCENT. Maybe he was coerced. But still the question lingers Why?
On November 9th two things happened to Shelly. First, Dr. Sparrow reexamined her and described two genital warts. Based on this observation Shelly and Travis were removed from Mitch and Dusty’s care. Detective Mathis and Clyde Lindsey of CPS were waiting in the apartment parking lot when the family returned from Dr. Sparrow’s office. In the parking lot Detective Mathis said he had new evidence, meaning the genital wart diagnosis.
Here is where versions diverge. Detective Mathis said that he asked Mitch to go to the Police Station for questioning. Mitch did not feel this was optional. Both agree that the term “warrant for your arrest” was used and Mitch was read his Miranda rights. He rode in the front seat of Detective Mathis’ car and was not handcuffed. Once at the police station he was put in an interrogation room.
Here is Mitch’s version in a letter he sent me.
(Misspelling, punctuation, and grammar are his)
I was a scared kid in a room about the size of my cell telling me I’m one sick SOB, I should just beat your f****** a** then through you in the lock up and tell them your a child molester and let them take care of the rest of you. I kept telling Mathis I would not blame him if I were the one who had done it. I wasn’t there (which no one seemed to care) Dusty was there! That’s when I was told about Dr. Sparrow’’s personal/professional opinion that I was the one who did it – because of what she “THOUGHT” she saw. Then the 50 questions… Where’s the kids room where their stuff at what do they like to do – Travis wants my keys and belt or go bye-bye all the time – Shelly hugs the TV, plays with toys and would spend the day hanging on the arm of the couch. Mathis says that’s where you put her to molest her? What? No I didn’t do it, it wasn’t me and this continued for some time then my being pissed more than scared said “all you really want me to say is I thought about it, attempted but, never did – sorry but, I wasn’t there! Then the next thing I know I’m told to sign not read and go home. …Now a question to you – as everyone likes to tell me, I just confessed to the crime but why was I free to leave? Mathis said he did not have any probable cause in order to even hold me 72 hours – what’s wrong with this picture.
Police are trained to work off fear and by ask the same questions different ways over and over till they get the answers they are looking for.
I don’t know how much you believe me all I can say is you’re still there but I will say this. I did not do it, will take my dying breath saying I did not do it. I screwed up and made a comment I never thought would mess me over for life.
And here is Detective Mathis’ testimony when questioned by Mitch’s attorney.
So y’all met in the parking lot?
The caseworkers took the children?
And you took Mr. Edwards to the side?
I talk to him; yes, sir
All right, you gave him his warnings, right?
And you told him that you had new evidence – –
– – That he had molested his children?
I’m not sure if I told him that.
All right, but you did tell him that you had new evidence – –
– – And that you were going to get a warrant for his arrest?
Did you tell him you – – did you mention the word, “Warrant” to him?
Yes, sir, I did.
Now, you then told him to get in the car?
No, sir, I didn’t.
You’re telling this jury that after you gave him his warnings, after you told him that you had new evidence, after you mentioned the word, “Warrant” you did not tell him to get in the car?
I most absolute did not tell him to get in the car. That’s what I’m saying to the jury.
And it’s your testimony to this jury that he was free to remain there if he chose not to go with you?
No, sir – – well, yes, sir, I did not have a warrant.
That’s not my question. My question is, you’re telling this jury he was free to remain there if he didn’t want to go with you?
… You chose to have him ride with you to the police station?
I offered him a ride; yes, sir
He was the prime suspect now?
I would say he was a good suspect; yes, sir
You had probable cause to arrest him?
Not necessarily; no, sir.
Let me ask you this: you had, from the very first, three suspects; you got statements from all of them?
You had evidence that Lance Hodges did not have chlamydia or venereal warts; you had evidence that Dusty Hill did not have chlamydia or venereal warts on November 9?
The only one, I believe, that I had evidence that had venereal warts was Mitch Edwards.
And that’s based on the report that Dr. Sparrow wrote, or that you talk to her personally?
And Dr. Sparrow’s letter stated that without a doubt he was the perpetrator of the sexual assault of his daughter?
That’s what the letter says; yes, sir
So now so based – – based with that new evidence, you’re telling this jury under oath that you didn’t have probable cause to arrest him?
I was going to try to seek a warrant, but whether I had enough probable cause to arrest him or a warrant, well that was going to be up to the district attorney to take the – take to approve the warrant – – to be obtained. I was going to try that was my intentions; yes, sir
Did – – when you talked to Dr. Sparrow did she tell you that Lance Hodges mentioned that two strangers had stayed overnight on that weekend?
No, sir, I don’t recall that.
So it’s – – it’s fair to say, Officer Mathis, that the focus of this investigation from September 25 centered on three individuals.
On September 29; yes, sir.
And then on November 9, the primary suspect was Mitch Edwards.
That’s the best lead I had going; yes, sir.
So now we are at the police station – –
– – What I would call the interrogation room.
This is where you question persons in your investigations of crimes or offenses?
Yes, sir …
But now in your words, when you interview them, this is where you do it?
And that’s because it’s – – it is good police practice to isolate an individual when you want to get a statement from them?
It’s good to have no outside interference; yes, sir.
And so you’re telling this jury that the door was unlocked?
Now you’re there to conduct a serious matter, you don’t want any outside interference, and the door’s unlocked? Is that what you’re telling this jury?
Now, you told Mr. Edwards that he would get probation if he gave you a statement, did you not?
No, I did not.
You never told Mr. Mitchell that he could leave, did you?
No sir, I didn’t.
As a matter of fact, the reason for the questioning in the police station is because it has a psychological effect on an individual?
I’m not a psychologist, but that’s where I conduct most of my – – all most all of my interviews; yes, sir.
Based on your experience, Officer Mathis – – Detective Mathis, some people are more easily persuaded than others? Is that true?
I suppose that could be a truthful statement.
And you’re trying to use the – – what we’ll call, “the interviewing room” because the majority of the time it has a psychological effect on the person?
A psychological effect?
I use it because it’s isolated, it’s quiet and there are no outside interferences and it – – you’re not going to interview somebody in a room full of people. You can’t do that I mean you just can’t get down to it.
And obviously you didn’t tell him that he could leave, right?
No, sir, I didn’t tell him he can leave.
It wouldn’t be a good interview practice if you are conducting an interview and told the person, “well you can leave anytime you want to?”
I generally do not tell them that, no, sir.
Now and so it’s your testimony to this court that the interrogation room has no psychological impact on an individual?
I suppose it could, but I’m not a psychologist, sir.
So that – – let me just try to summarize the two statements (that Mitch gave on October 4 and November 9). They are very different. Would you agree with that?
The first statement that he gave to you, he voluntarily drove himself to the station, correct?
I believe so; yes, sir.
And then he – – in the statement he said, “I didn’t do it” essentially?
Six weeks later you took him to the station?
And in the station he confesses to this horrible act?
Now, it’s your testimony that you did not tell him that he would get probation if he confessed?
Later in Detective Mathis’ testimony the District Attorney asked:
Describe what the interview rooms look like?
The interview rooms have a desk and up to three chairs. One has a telephone and a computer terminal where you can access the mainframe from. There are no windows in them and they each have a door that you can close to drown out any outside noise.
Thus we have two contrasting versions of what happened in the interrogation room. How do we resolve this discrepancy?
Warner Wolf, a TV sportscaster in New York City had a catch phrase when he introduced the day’s sports highlights, “Let’s go to the videotape!” or when he was on radio, “Let’s go to the audiotape!”
So let’s do what Wolf did – Let’s go to the tapes!”
Let’s go to the tapes!
Here is a sentence (in bold) I left out of Mitch’s letter.
“No I didn’t do it, it wasn’t me and this continued for some time then my being pissed more than scared said “all you really want me to say is I thought about it, attempted but, never did – sorry but, I wasn’t there! Then the next thing I know I’m told to sign not read and go home. So I did and was glad to be gone there was nothing handwritten or audio/video recorded as there’s to be – no one else in the room but me and Mathis.”
There were no tapes! In fact no tapes, no notes, nothing in Detective Mathis’ or Mitch’s handwriting.
How did he get to the Police Station? Did he have a choice about going? Was the interview done in private? Could he have left at any time? Bottom line, “Was he in custody?” The answer to this question is crucial. Why? Because there are no tapes! No videotape. No audiotape. No notes that Detective Mathis took. Nothing in Mitch’s handwriting. And if he was in custody the law mandates that a recording of the interrogation and confession be made.
He mistakenly testified at trial that he thought being read his Miranda rights meant he was under arrest, in custody. But he had been read his Miranda rights in October. Dusty and Lance were read their Miranda rights before their “interviews.” (Which, unlike Mitch, were not conducted in an interrogation room but at Detective Mathis’ desk.)
Most of us are aware of Miranda warnings from TV. “You have a right to remain silent…If you cannot afford an attorney…Anything you say can be used…” and so on. They were instituted in
1966 by a 5-4 decision of the Supreme Court under Chief Justice Earl Warren to protect, mostly indigent, defendants from being coerced into self-incrimination. But as we saw in a previous blog “More than 80% of those taken into custody by the police waive their Miranda rights.”
The Texas Code of Criminal Procedure requires that Miranda warnings be given if a suspect is in custody. But Miranda warning doesn’t equal arrest. The Code also requires a recording:
Texas Code of Criminal Procedure
Art. 38.22. WHEN STATEMENTS MAY BE USED.
Sec. 1. In this article, a written statement of an accused means a statement signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write, a statement bearing his mark, when the mark has been witnessed by a person other than a peace officer.
Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
- an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
If Mitch was in custody when he gave his “Confession” then it is inadmissible. If he was just an invited guest, not deprived of his rights or freedom, then his statement was a voluntary admission of guilt. Since he had been Mirandized it could be used as evidence of his guilt.
Sec. 5. Nothing in this article precludes the admission of a statement …that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation.
The litmus tests of a “custodial interrogation” are twofold.
Was the person in custody or “otherwise deprived of his freedom of action in any significant way?”
Would “a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave?”
So dear reader, what do you think? Was Mitch being detained?
He was taken by Detective Mathis to the Police Station. But he rode in the front seat of the police car. He was not handcuffed. After giving his November 9 statement he was allowed to leave. He was placed in a small room with no windows and signed and initialed the statement. What happened in that room only two people know and they tell entirely different versions. Is it more believable that Detective Mathis yelled and cursed at Mitch or that Mitch in a moment of guilt and contrition confessed? By both of their admissions, the whole process from apartment parking lot to Mitch leaving the station took less than two hours. Prolonged interrogation to wear Mitch down was not involved.
In thinking about this question I am reminded of an experience I had in Mexico many years ago. I was flying with my brother in law and his girlfriend to Belize in a Lake Commander, a small amphibious plane. We ran out of gas near Cuidad del Carmen and landed in the Gulf of Mexico. We were towed to the city by a fisherman where the Mexican Police (thinking we might be bringing drugs into Mexico!) came and took us to the Police Station. We sat by the Officer’s desk for several hours. Because we were sunburned, I left briefly and went to a pharmacia for sunscreen and prednisone. Finally after it became apparent that we were doing nothing wrong and were not going to pay the officer a “tribute” we were told we could leave. But we were told we had to get back to the plane on our own. Even though I left the station for a time I still felt that I had been “deprived of my freedom of action in a significant way.”
My guess is that Mitch felt the same way. However, in a pretrial hearing that lasted about as long as Mitch’s interrogation the judge ruled that Mitch had not been in custody or deprived of his freedom in any significant way. The rules of custodial interrogation did not apply. The confession was in.
A “confession” is a “voluntary declaration by one person to another that the declarant has committed a crime.” Terry v. State, 420 S.W.2d 945, 947 (Tex. Crim. App. 1967). An “admission,” on the other hand, acknowledges some particular fact or circumstance (and not the whole charge) and indicates a consciousness of guilt that tends to connect the accused with the crime charged and to incriminate him. In other words, an admission acknowledges only some particular fact or circumstance, pertinent to the issues and tending to prove guilt in connection with other circumstances, while a confession covers the whole transaction and admits guilt. Creel v. State, 710 S.W.2d 120, 130 (Tex. App.–San Antonio 1986), aff’d 754 S.W.2d 205 (Tex. Crim. App. 1988).
There are essentially five relevant issues when evaluating the legality of a confession to be admitted into evidence at a criminal trial:
- Was the confession the product of interrogation by a state actor?
- Was the person in custody?
- Was the person appropriately warned of his or her statutory and constitutional rights?
- Did the person make a knowing, voluntary and intelligent waiver of those rights?
- Was the confession truly voluntary?
WILLIAM P. ALLISON Clinical Professor of Law University of Texas School of Law
Why would an innocent person make a “voluntary declaration … that the declarant has committed a crime.”?
Joseph Buckley, now the president of Reid and Associates has addressed this topic in chapter 15 of the book Criminal Interrogations and Confessions (2004). Reid and Associates is the preeminent firm teaching law enforcement officers interrogation techniques in the United States. He describes several kinds of false confessions.
(1) Voluntary False Confession. Those used to gain notoriety. For example, the high schooler who admits to a theft to impress a girlfriend.
(2) A Coerced Internal Confession occurs when a suspect is convinced to confess to a crime he doesn’t remember committing.
(3) The Nonexistent Confession – “I’ll pay the money back but I didn’t steal it.”
(4) The Coerced Compliant Confession – “An allegation of a coerced compliant confession occurs when the suspect claims he confessed to achieve instrumental gain. Such gains include being allowed to go home, bringing a lengthy interrogation to an end or avoiding physical injury.” Mitch’s confession could fit in this category.
A paragraph from Buckley’s chapter caught my eye.
“A confession that was not retracted until days or weeks after it was made is probably truthful. When a significant period of time elapses before a confession is retracted, this is much more typical of the guilty person who is anxious to prepare a legal defense. An innocent suspect will know at the time of the confession that it is false, except in the case of the alleged coerced internalized it would be expected that the innocent suspect would denounce his confession and protest his innocence to anyone willing to listen.”
So a confession quickly retracted would support the contention of a coerced compliant confession.
John Reid, who died in 1982 developed and marketed his techniques that police officers use to interview criminal suspects. John Reid and Associates located in Chicago, has trained hundreds if not thousands of law enforcement, FBI, military, and private security individuals in the Reid interview technique. It has recently, come under attack because of its coercive confrontational methods. Critics contend that it has many flaws, including the contention that reading non-verbal body language is accurate in predicting guilt. Studies have shown that police are no better than the layman in interpreting body language as signs of guilt or innocence. (We physicians are no better.)
“What …reaction did Mr. Edwards the defendant have…?
Dr. Sparrow: He blanched, meaning he went very white and he looked around and looked down.”)
Coupled with the fact that police routinely feel that they are very good at this makes for a very dangerous combination (“often wrong but never in doubt”). The Reid technique increases discomfort and anxiety and uses the presence of anxiety to confirm that I suspect is “hiding something.” Although Joseph Buckley states in his chapter that, “even critics of police interrogation admit that most confessions are true”, that bar is set to low. Any false confession should be cause for concern and a re-examination of interview techniques. And that is occurring. A technique is now used in England called PEACE (for Preparation and Planning, Engage and Explain, Account, Closure, Evaluate). It involves evidence gathering, looking for inconsistencies in statements, and then building on that. Anxiety is to be ignored. One example given was a man whose wife disappeared in London. One of the statements the man made was that he had sent text messages to his wife’s phone looking for her in London while returning home on the train. Phone records indicated that both phones were on the train. This and other inconsistencies led the man to confess. (“Can you explain how both phones were on the train when you texted?”) No coercion or threats were used. Psychologists in the United States are not optimistic that this technique will gain traction because the “culture of confrontation” is too embedded in our society. But they have hope that “training can be improved… by requiring the videotaping of ALL interrogations, setting time limits on interviews, and making it illegal to lie to a suspect.”
At Mitch’s trial Detective Mathis testified that he had attended interview and interrogation training. As we have seen his version and Mitch’s version of the interrogation differ.
A little piece of paper
Mitch sent me a sheet of paper. It is an alleged excerpt from Shelly’s CPS file. There is nothing official about it. No stamps, labels, signatures, or even a page number. Many of the names are redacted giving it a semblance of authenticity. It was never introduced at Mitch’s trial.
As we have seen allowing Mitch’s confession into the trial essentially sealed his fate. Would things have turned out differently for Mitch had the jury heard this testimony?
Because of the undocumented reliability of this page I wrote CPS asking for the full file. It is not easy nor should it be. To obtain these records you have to be in law enforcement, child protective services, an attorney representing a participant, or a participant. Mitch was a participant. So I sent him the request form that had to be notarized. Notarized from prison! Doable but not easy. Finally he sent the request to CPS. Two weeks later a letter arrived to Mitch at our address. It said in so many words, “Because of the sensitive nature of CPS records and the time to redact names, etc. it may take up to 12 months to complete.” I called them last week and was told they hadn’t finished 2014 yet! So documenting these mitigating facts will have to wait. Nevertheless the information is compelling.
OK! OK! You say WHAT ARE THE MITIGATING FACTS?
There are two things that jump off of this page. I’ll deal with one here and the second later in another blog.
It contains notes from a social worker, who interviewed Dusty on 11/10, one day after the children were removed from Mitch and Dusty’s custody and Mitch confessed. The social worker, whose name is redacted but easily identified from other records as Joan Wilson, told Dusty on 11/10 that Mitch had confessed the previous day. This is the verbatim reproduction of this entry.
11/10/95: Office visit with Dusty Hill
Results: Dusty Hill, mother of the children, stated she does not believe that Mr. Edwards sexually abused their daughter. I told Ms. Hill that Mr. Edwards gave a confession to Detective Mathis and it was unclear to me, on how she could not believe the abuse occurred. Ms. Hill stated Mr. Edwards said he was threatened by Detective Mathis is the reason why he gave the confession. I inquired about any genital warts being on Ms. Hill and she denied having genital warts and stated that their sex life was normal. She stated that since she is seven months pregnant their sex life is limited. Ms. Hill stated that she planned to continue to live with Mr. Edwards. Ms. Hill informed me that Mr. Edwards was the primary caretaker of the children because she worked all the time. She stated Mr. Edwards never worked and she was the sole provider for the family.
So Mitch recanted his confession the same day he made it (or at most the day after.) As we have seen this is one of the criteria typical of a false confession.
Joan Wilson was listed as a prospective witness but never called to testify.
The nature of a confession reminds me of talking to patients and mentioning the word cancer. From that moment on, it is a rare patient that hears anything other than that word. CANCER.
CONFESSION. Some experts on confession in child abuse cases say that once a confession is obtained, the trial is a mere formality. Guilt is assumed. Nothing else is heard by the jury. After reading Mitch’s confession it is not hard to see why.
I have put it off as long as I can.
Because of the graphic description of the confession I have elected to place it under davidhaymes.com > Other Things > Writing on my web page. Those who wish to read it are invited there.
So my pendulum swung to the guilt end. Where would the facts in the confession come from?
And why the date of March 20th? Not September 23-25 when Dr. Sparrow said the abuse took place? It just doesn’t make sense.
Shocking!! How could anybody sign off on that if it weren’t true? Custodial interrogation or not?
A Doctor Dissents
As you may remember in a previous blog I mentioned “a little piece of paper” that Mitch sent to me. It is purportedly a part of Shelly’s CPS record (which I have requested). The second thing it contains is the notes of a phone conversation the social worker, Joan Wilson, had with the foster mother on the same day (identified as Jo Kim). Remember the children, Shelly and Travis, had been removed from Mitch and Dusty’s apartment by CPS on 11/9/95.
11/10/95: Phone call to Shelly’s foster mother
Results: I inquired about Shelley and how she was adjusting to the home. (Foster mother) stated that Dr. Kazmer conducted an intake physical examination on Shelly today and Shelly has an ear infection. She stated Shelly’s teeth have a lot of cavities and she has scratches on her back. (Foster mother) stated a vaginal examination was hard to do because Shelly was very upset. (Foster mother) stated Dr. Kazmer did not see any vaginal warts or anything that looked like she had been penetrated, but possibly fondling. She said Dr. Kazmer would like to see Dr. Sparrow’s records. (Foster mother) stated they discussed Shelby’s constipation and gas. She said Dr. Kazmer started Shelly on (end of page)
A doctor for CPS saw NO EVIDENCE on his examination of Shelly of venereal warts or evidence of penetration one day after Dr. Sparrow saw 2 large warts and a tear almost to the anus and venous engorgement. And this was 11 days before Dr. Vondren testified that Shelly had the most severe abuse he had seen in sometime. Something seems very wrong here!
Shelly’s foster mother in the CPS note above (as she testified below) is Jo Kim. Her testimony is much different than her statement to Joan Wilson. Her testimony suggests coaching.
P 575 line 4 testimony of Jo Kim August 28. Questioned by ADA Jennie Yarborough
4 Q Did you at some point in time,
5 become a foster parent for Shelly Edwards?
6 A Yes, ma’am, I did.
7 Q Let me take you then to Nov the 9th, 1995.
8 Did you receive Shelly that day?
9 A Yes, ma’am.
23 Q And did you, at some point in time inspect her
24 pelvic area?
25 A Yes, ma’am
1 Q What did you see please?
2 A She had what looked to be a type of warts on
3 the outside, what looked to be dark bruising
4 and it also looked to be an old scar.
13 Q And this was November (9th) 1995?
14 A Yes, ma’am.
15 Q What about a discharge, did you notice any
17 A That’s what made me investigate, she had a
P 579 Testimony about taking Shelly for well-baby visit to Dr. Kazmer.
12 Q Did Dr. Kazmer attempt to do a pelvic
13 examination in your presence on Shelly Mitchell?
14 A Shelby wouldn’t let him. (She said only that “vaginal examination was difficult to do” in Joan Wilson note of November 10. And yet SHE was able to examine Shelly enough to see bruising between vagina and rectum?)
Who is Dr. Kazmer and why was he never mentioned at trial or called to testify?
Signs of Childhood Sexual Abuse Part One
So let’s review. The chlamydia infection is bogus. It is not documented by a positive culture. And even if Shelly did have chlamydia (which she didn’t), it is NOT evidence of childhood sexual abuse as Dr. Sparrow testified.
There are enough questions about the Condylomata that a competent attorney would have made mincemeat of the accusation that Mitch gave Shelly venereal warts. (Definition: to make mincemeat of = to destroy utterly). No other doctor saw Condylomata on Mitch. I think Dr. Sparrow as a baby and female doctor was inexperienced in what she saw and viewed Mitch through a filter of presumed guilt. Dr. Sparrow and Vondren described the warts on Shelly in different areas and Dr. Kazmer did not see them at all!
The confession was probably coerced by a skilled detective manipulating an immature uneducated 22 year old who just wanted to go home. At the least it is a possibility the jury should have been encouraged to consider by a competent defense attorney.
- I have done enough to put serious doubt in my mind and I hope in yours.
What about the testimony of two physicians about Shelly sexual injuries?
That was essentially what an investigator for The Innocence Project told me. Two physicians testified to evidence of sexual abuse. He also read the confession and felt that it rang true – i.e. a valid confession using the words and phrasing of an uneducated 22 year old. He was not bothered by the lack of recording or notes. Disappointed, my pendulum swung again. But I digress.
I didn’t know much about sexual abuse when I started Mitch’s case. I’d had some patients who admitted to having been abused in childhood. I found this often when I was doing weight management. So many of the women I saw who were overweight had been abused as children. It was almost like they used their poundage to insulate themselves from intimacy and thus further hurt. Childhood sexual abuse (CSA) leaves scars and they are deep.
As I read about CSA most of the articles and books dealt with similar issues that we examined in confessions. Is the accusation truthful? Is the memory accurate? Is this real or fantasy (remember Ann in an earlier Blog: Return from a Side Trip)? And like a confession an accusation of CSA is believed almost universally. Lives have been ruined on the basis of false accusations.
But Mitch’s case was different. The accusation came from a doctor and was corroborated by another doctor. Shelly couldn’t say what did or did not happen. (At trial the ADA brought Shelly into the court for the jury to see. Mitch said if they had let him call her she would gladly have come to him. She was not afraid of him.)
What I have learned is that evidence of CSA is not nearly so straight forward as you might expect. Physical findings and statistics are used to support claims of CSA that are later shown to be invalid. In fact there is very little written about the appearance of normal pre-pubescent female genitalia prior to the 1980’s. In her book entitled First Do No Harm: The Sexual Abuse Industry and her article entitled Medical Considerations in the Diagnosis of Child Sexual Abuse , Felicity Goodyear-Smith, a New Zealand Physician, gives evidence of the over diagnosis of CSA and the flimsy physical findings used to support the claim.
To be specific I will need to use graphic descriptions that some may find offensive. For those readers I suggest you skip the next blog.
What I am going to do is summarize Dr. Sparrow and Dr. Vondren’s findings, followed by observations from Dr. Goodyear-Smith and others.
Dr. Sparrow and Dr. Vondren testified to evidence of sexual abuse in Shelly. The certainty with which the doctors Sparrow and Vondren testified was unwarranted and could charitably be called hubris and less charitably dishonest.
So I have tried to compare the two doctors’ descriptions of what they saw in Shelly. First the descriptions do not match. Second there are no photos. Third “demonstration purpose” photos were introduced to show the jury without defense objection. Fourth both doctors jump to obvious prejudiced conclusions not supported by the literature or sex abuse experts.
An article from the AAFP journal (American Association of Family Practice) in 2001 contains a chart listing 1) normal findings in prepubertal girls, 2) suspicious findings, and 3) definite evidence of sexual abuse.
Shelly had three of the nine listed as normal or nonspecific, one suspicious finding, and none of the diagnostic ones.
Dr. Sparrow’s letter of October 2 states the following:
On examination of the genitalia I found her diaper to be sodden with urine but not feces; however dirt and fecal matter were deposited over the vaginal area obscuring adequate observation. I discussed, as I have done on numerous prior occasions, with the parents who were both present, the importance of hygiene. They had not brought any wipes with them so I prepared a moist towel and began cleansing her vagina whereupon I discovered ½ cm (—–) gaping laceration at the proximal introitus which spotted blood on cleansing; below which was a healing area which extended linearly to mid perineum. The introitus was erythematous with gaping vaginal entry and hymenal ragged remnants peripherally. Examination of rectum revealed perianal edema with attenuated ruggae and marked blue venous engorgement.
Dr. Sparrow on September 25, the date the abuse was reported, describes a dirty diaper with dirt and fecal matter over her vagina. Cleaning she found a “1/2 cm gaping laceration at the proximal introitus.” (I’m not sure what the proximal introitus means. Proximal is closest and introitus refers to the vaginal entrance. That would presume a distal introitus, which is an oxymoron) ½ cm is 5 mm or about 1/5th of an inch. A No. 2 pencil lead is 2mm wide. So Shelly’s gaping laceration was two and a half times as wide as a pencil lead. ½ cm = —- . She then describes a “healing area” extending toward the rectum. This is not a sign of sexual abuse. “The introitus was erythematous” (red) with a gaping vaginal entry and ragged hymenal remnants. Erythema and hymenal tags, bumps, and mounds are listed as normal variants in the AAFP article. Normal! “ Examination of rectum revealed perianal edema with attenuated ruggae and marked blue venous engorgement.” This I presume was to suggest anal penetration. Perianal edema (swelling around the anus) is a finding in constipated children (which Shelly was). Attenuated ruggae – means flattening of mucosal folds in the rectum. The edema, rugae (correct spelling), and venous (vein) engorgement (swelling) are all listed by Drs. Hymel and Jenny as signs that can be confused as indicating sexual abuse.( Hymel KP and Jenny C., Child Sexual Abuse, Pediatricsin Review 17(7): 236-249, 1996).
In particular hymenal openings said to measure more than 4 mm, genital rashes and redness, and anal reflex dilatation have been demonstrated to be unreliable medical indicators.”
Felicity Goodyear-Smith M.D.Medical Considerations in the diagnosis of Childhood Sexual Abuse http://www.ipt-forensics.com/journal/volume6/j6_2_1.htm
Specific normal findings included increased vascularity (44%) …, and asymmetry of the hymenal tissue (9%). The study emphasizes the danger of overinterpreting small anatomic findings when one is evaluating the possibility of sexual abuse in girls; such findings may lie within the range of normal variation.
Gardner, JJ, Descriptive study of genital variation in healthy, nonabused premenarchal girls J Pediatrics 1992 Feb
Anal fissures are commonly associated with constipation. Often the passage of a hard stool can cause a linear tear in the distal anal canal. There may be a history of painful defecation associated with bright red blood either on the stool, in the nappy or on toilet paper. On examination, a small skin tag or ‘sentinel pile’ may be observed at the 12 or six o’clock position. Provided the stool is kept soft, anal fissures usually heal spontaneously.
Alf Nicholson Professor of Pediatrics at the Children’s University Hospital, Temple Street, Dublin
Many findings that were once misinterpreted as evidence of abuse are now considered normal findings and variants. In particular, the width of the hymenal opening is of no informative value whatsoever.
Bernd Herrmann, et al Dtsch Arztebl Int. 2014 Oct; Physical Examination in Child Sexual Abuse
Dr. Sparrow’s letter of November 9 states the following:
On examination of Shelley’s genitalia the introitus was again erythematous with a widened orifice and there was healed linear scar where the previous vagino-perineal laceration had occurred. New findings were that of a small cone shaped condyloma (venereal wart) on the left side of the clitoris and that of two large “stretch” sentinel tags – – one at 12 o’clock and one at five o’clock in the rectal area. Both tags were made up of rectal mucosal tissue that had been externalized from stretch trauma but of note the latter defect had big, condylomatized (seeded with venereal warts).
Her examination of November 9 found that the cut had healed. She noted two venereal warts (Condylomata) and two skin tags near the rectum. The AAFP article does say that Condylomata in a child older than 2 years suggests abuse. An article in Medscape from 2004 says over 3 years and says that there are several nonsexual ways warts can be acquired. Shelly was 2 ½. Skin tags are usually the result of constipation. Except for the warts listed by AAFP as suspicious for CSA there are no definitive findings.
In summary on Dr. Sparrow’s exam of November 9 there are NO diagnostic findings to support a diagnosis of childhood sexual abuse (CSA).
…there was very little scar formation and signs of damage were difficult to detect after a couple of months.
“Review of recent literature in fact demonstrates that only a minority of children with anal-genital warts have been sexually abused.”
Children’s genital regions have not been routinely examined in medical examinations, and until the last decade virtually nothing was written on what normal vaginas and anuses looked like in childhood.
The anogenital findings, taken in isolation, are generally too imprecise and unreliable to permit a definitive conclusion that sexual abuse has taken place.
The court records contains no letter written by Dr. Vondren . His examination report is found in his testimony, which I will summarize. It has some inconsistencies and glaring preposterous assertions, none challenged by defense council.
First he uses the term “vascuavicularis.” I do not know what that means nor does Stedman’s Medical Dictionary. And neither does Google for that matter.Perhaps the court reporter misspelled. But here is how he described the term.
“The first (abnormality) was an increased vessel formation in the area between the vagina and the anus called the vascuavicularis, which is just a formation that means the area has had chronic repeated trauma and scarring to it.”
This is nonsense. Dr. J.J. Gardner referenced in the previous blog described increased vascularity in 44% of normal pre-pubertal girls. Increased vascularity and “increased vessel formation” are exactly the same thing. Dr. Vondren’s finding, whatever it was, has nothing to do with sexual abuse and his conclusion that it “means the area has had chronic repeated trauma and scarring to it” is simply incorrect.
“The other abnormalities were the anal opening showed markedly decreased tone; in other words, the rectal muscles, the sphincter right on the end of the anus relax. Children did not show that unless they’ve had repeated stretching and tearing abuse of that area. It’s not something that one sees from constipation for instance.”
What does Dr. Goodyear-Smith say about this?
The other area of contention in medical examination is the physical signs of anal abuse. In particular, the argument centers around a phenomenon of anal gaping called reflex anal dilatation (RAD). Briefly, this involves gently parting the buttocks and observing the anus for half a minute. Usually, the sphincter on the outside of the anus will contract and then dilate, as pressure is maintained. Sometimes the inside sphincter will then also relax giving a view right into the rectum. It is this response that has been named RAD. (She then sites earlier investigators who said RAD was a sign of sexual abuse. That contention has been discredited because it occurs in non-abused children as well.)
One study observed the phenomenon in nearly half of the non-abused children they examined (McCann et al, 1989). It also appears to be more common when a child is constipated and has feces sitting higher in the bowel (Sunderland, 1987; Royal College of Physicians, 1991). Many doctors also report that they have commonly seen anal fissures in non-abused children (Freeman, 1989; Kean, 1989; Royal College of Physicians, 1991).
So far Dr. Vondren is 0 for 2.
“Another abnormality was an area of increased bruising and scarring. The child was laying prone which means on her back toward you at approximately 9 to 11 o’clock and the clock face suggested chronic bruising and repeated trauma in that area around the rectum.”
In the first place if the child was laying on her back, she is in the supine position, not prone. And as we have seen bruising is not a feature of CSA. “Chronic bruising” is not a term I am familiar with. A bruise is a collection of blood under the skin outside a blood vessel. The body reabsorbs the blood and the bruise disappears. When the term chronic bruising is used it describes a person who experiences repeated bruising over time, usually in different areas. The person observes this over time. No one, doctor or not, can look at an area and say it “suggested chronic bruising.” It makes no sense and does not in anyway “suggest” sexual abuse. “Repeated trauma” is not a physical finding.
“In addition she had venereal warts somewhere around 6:00 or 7:00 o’clock on the clock face.”
As we have seen the diagnosis of condyloma is not diagnostic of childhood sexual abuse.
She had an area of fan – shaped scarring at around 6:00 o’clock, another rectal opening which is something that is seen with repeated – – something that’s seen classically with repeated anal abuse; in other words repeated subjugation and she had a large rectal tag in the area, a rectal mucosa that had been extruded from the rectum and and scarred, which indicates that long term scarring had gone on over a long period of time.
Again Dr Vondren goes overboard. Fan shaped scarring at 6 o’clock? What does that mean? Seen classically with repeated abuse? Not in any article or textbook I could find. Rectal tags and extruded musosa are NOT signs of CSA. And what is repeated subjugation?
“At the time I examined her on November 21, the vaginal opening was not particularly remarkable. It was approximately 1 x 5 mm. In view of some history of previous acute trauma I don’t think that’s necessarily unusual; there was minor trauma to the hymenal edge which had healed over a period of one to two month.”
Again making statements not supportable. How can anyone tell something has healed over one to two months? But pay particular attention to the underlined above.
“Hyperpigmentation refers to an area that, because of repeated trauma friction, bruising is picked up increased pigment; in other words, the bruising and the blood, pigments are being deposited over a period of time increases the color and this is what were seeing around her anal opening at the 9:00 to 11:00 o’clock position.”
Again this is pseudoscience that has nothing to do with sexual abuse and is most likely a normal finding. Articles I read make no mention of what Dr. Vondren refers to.
Then the ADA asks Dr. Vondren if his findings on his exam of Shelly are consistent with penetration by a male sex organ. And he answers yes. And then he says
“The increased vascularia in the vascua vicularis suggests attempts at vaginal penetration; in other words, that area doesn’t heal quite as well with the mucous membrane of the time.”
This is pseudoscientific nonsense with no meaning and a preposterous jump to a conclusion of “possible penetration” (“Specific normal findings included increased vascularity (44%)… Gardner, JJ”)
Then she asks
“On a scale of 1 to 10 one being just mildly abnormal, 10 being very, very abnormal, how would you describe, one through 10, the abnormality scale of Shelley’s vaginal area that day?
“Ten, but that’s an underestimate.”
This is just two pages after stating …”the vaginal opening was not particularly remarkable.”
If you are confused by all this then join the club. But the bottom-line is that the description of sexual abuse in Shelly is far from certain and could have been challenged in court effectively by an expert in childhood sexual abuse. Maybe she was, maybe she wasn’t. An alternative explanation for the ½ cm laceration at the vaginal introitus is not obvious. So in the next blog let me propose one. You may think it a stretch (no pun intended) but far less plausible explanations have been presented to juries to cast doubt.
Did Shelly cause her own injuries?
Shelly was severely developmentally delayed and visually impaired. A report from the BACH Project, a Social Service Agency that worked with special needs children in South Texas, noted Shelly’s poor home environment. In their report of 8/11/95 they also commented
Shelly is severely sensory defensive. Parents have been instructed in the pressure/joint compression but did not follow through with it at home. Shelly continues to engage in self-stimulation behaviors including hitting her hands on surfaces, poking her hands, poking her eyes/head, banging her head, and rocking. Parents have been instructed in way decrease these behaviors but they do not follow through.
By report, child is beginning to enjoy book/story time with adult, hugs familiar persons, initiates home play but often turns into self – stimulation behavior.
Although there is no report of genital self-stimulation it is certainly possible that the redness and the laceration in Shelly’s pelvic area could have been caused by Shelly’s self-stimulation behaviors. Again competent council would have raised this possibility with the jury after getting an expert on childhood sexual abuse to demolish the prosecution’s medical witnesses and their prejudicial and incorrect testimony.
Judge Allen Stilley
I have used fictitious names for most of the people in Mitch’s case (including Mitch). But I have decided to use the judge’s real identity because he is deceased and I have an article that will shed some light on his likely behavior in this case.
The Harris County Medical Examiner’s office confirmed Tuesday that a body recovered from a weekend house fire in San Jacinto County is that of State District Appellate Judge Allen Stilley.
One reason given why defendants are at a disadvantage is often the personnel involved and their familiarity with each other. The judge, bailiff, court reporter, prosecutor, and even the defense attorney have interacted before and are comfortable in the local court setting. If a defendant should be so flush with cash that he can afford outside counsel, the word outside is telling – he/she is an outsider. As such the benefit of objections often goes to the home team. The judge’s prejudice may subtly shine through.
In Mitch’s case the favoritism was not too subtle. In Mitch’s claim of custodial interrogation the judge took less than a page of trial transcript to rule in the prosecution’s favor. No custody. Confession in.
In looking for information on Judge Stilley I found a Texas Bar web site that had this message:
For those of you who have been around a while, you may have appeared before Judge Allen Stilley. He was a Criminal District Judge in Houston who was elevated to the Court of Appeals. Then, he worked as a visiting judge for a number of years and heard many of the prison prosecution cases. Prior to becoming a judge, he was an assistant district attorney in Houston.
Judge Stilley died in a house fire on Friday night. He was living in San Jacinto County and, apparently, was alone in his home when it went up in flames.
Judge Stilley was a good judge and a really good guy. He will be missed.
But then I found an article by attorney Lamar W. Hankins that was not so complementary.
Ted Poe is a Republican representative from the Houston-Beaumont-Port Arthur area, which includes the town where I grew up. I first encountered him while in my first year of law practice in 1977, when he was First Assistant District Attorney in the courtroom of the Honorable Allen Stilley. The two were big buddies, having worked together in the District Attorney’s office before Stilley was elevated to the bench. If any defendants ever got justice in that courtroom, it was because of the good work of their defense attorney, not any commitment to the oaths of office of both Poe and Stilley to follow the laws and the constitution.
While waiting for a jury verdict one day, I witnessed Poe viciously attack a hapless defendant who wished to withdraw a guilty plea he had entered earlier… Poe was standing near him and shouting as loudly as he could… He was confined to a chair in the witness box right next to Judge Stilley, who seemed to delight in the torture being meted out by his friend Poe.
The Code of Judicial Conduct provides that a judge “require order and decorum” in judicial proceedings. This scene was not in any way decorous. Those same canons require that a judge assure that lawyers in his courtroom be courteous. Poe was anything but courteous. When the worthless appointed defense attorney for the man tried to speak up, Stilley ordered him to sit down and shut up …
Stilley failed entirely in his duty to protect the witness from either harassment or “undue embarrassment” …
I learned later that Poe’s style was also Stilley’s style when Stilley became upset with me during a post-summation discussion about my client’s rights. I never raised my voice, but Stilley had the same vocal capacity and ferocious demeanor as Poe’s. Fortunately, I was at least six feet away from him when he began his shouting at me.
(Excerpts quoted with permission from the author)
© Lamar W. Hankins, Freethought San Marcos
One disadvantage of a trial transcript is the lack of behavioral context. Inflections, facial expressions, body language, and other clues to underlying attitudes are missing. But one objective measurement is how the judge treats opposing counsel.
During Mitch’s three day trial I counted the number of objections I could find in the transcript. There were eighteen objections. The ADA’s objections were 100% sustained and the defense attorney’s objections 100% overruled.
I do not think it a stretch to conclude that Judge Stilley was prejudiced and the defense incompetent.
I still waffle about Mitch’s guilt or innocence but I am certain about a couple of things. Had he had effective counsel he would have been acquitted and even if guilty, his punishment doesn’t fit the crime.
Attorney Jose Serano
It is difficult to know where to begin in assessing Mr. Serano’s performance. I went to meet Mr. Serano’s office one Saturday morning to ask him about Mitch’s case. His office is a one story building in a rundown neighborhood. Even for a casual Saturday he was underdressed: barefoot, plaid Bermuda shorts, and a sleeveless undershirt. He was friendly and accommodating. Unfortunately this visit was before I had fully digested the trial transcript and its glaring missed opportunities to defend Mitch.
Naively I asked him if he thought Mitch was guilty. He demurred but then said,”I told him whatever he did to not take the baby lotion from the ADA when she handed it to him. I told him and he took it anyway. I knew he was sunk when he did that.”
I have since gotten Serano’s appeal brief filed with the Court of Appeals, First District. The only issue raised was the issue of custodial interrogation and the admissibility of the confession.
Here are the issues that could have been raised in Mitch’s defense.
- Exculpatory evidence not used – Mitch recants his confession to Dusty immediately after being released, Lance Hodges reports others in apartment, BACH report describing Shelly’s self- stimulation.
- A friend who came to the apartment the weekend of September 24 found Lance Hodges alone with the children.
- Attorney Serano asked Lance Hodges only two questions: Are you and Mitch friends? Did you abuse Shelly?
- He asked no questions to Detective Mathis about the veracity of the confession. Why no notes or tapes?
- No questioning of Dr. Sparrow about misdiagnosis of chlamydia. She lied when she said Shelly had a positive culture for chlamydia and a second time when she said it is always sexually transmitted. She almost certainly misdiagnosed Condylomata in Mitch. False statement by her that chlamydia and condylomata EQUALS sexual abuse. Why no photographs? And why were the condylomata not treated in either Mitch or Shelly? Why no rebuttal expert on sexually transmitted diseases to counter her false statements?
- Vondren’s testimony contained numerous mistakes and assertions. Allowing unchallenged testimony of Dr. Sparrow and Vondren describing physical signs of Shelly’s “sexual abuse” that was false, inflammatory and scientifically erroneous. Why no rebuttal expert on sexual abuse to counter their statements.
- Not objecting to “similar” child abuse photos (not Shelly) being shown to the jury. The jury could not separate those pictures from Shelly. Serano should have objected, vigorously.
- He did not call Joan Wilson, Social worker, to testify. She could have confirmed that Dusty said that Mitch recanted his confession immediately after release. She was on the witness list. Why wasn’t she called?
- He did not call Dr. Sid Kazmer, CPS doctor, as a witness. He could have testified that he saw no signs of abuse of Shelly in November 1995. He was not even listed as a witness.
- The only experts called were two doctors who said Mitch didn’t have venereal warts. He called Mitch’s mom. No other witnesses were called by him. According to Mitch he told several witnesses to go home, they weren’t needed.
- He made few objections and all of them were overruled.
I am convinced a competent attorney would have gotten Mitch exonerated. Money equals justice.
What I don’t know if it is too late to claim ineffective council in an appeal after 20 years.
The 6th Amendment to the US Constitution states
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In addition, the Supreme Court has ruled that the right to a lawyer implies the right to an effective lawyer.
The Supreme Court has held that part of the right to counsel is a right to effective assistance of counsel. Proving that their lawyer was ineffective at trial is a way for convicts to get their convictions overturned, and therefore ineffective assistance is a common habeas corpus claim. To prove ineffective assistance, a defendant must show (1) that their trial lawyer’s performance fell below an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668 (1984).
I appreciate those of you who have read this blog. Any comments, constructive or destructive, would be greatly appreciated. Any thought an how to proceed would be especially appreciated. Mitch was convicted of child abuse largely on the basis of a typed confession and “expert” medical testimony.
The confession was not taped and there are no detective notes or anything in Mitch’s or Detective Mathis’ handwriting.
Medical testimony from two local doctors was flawed. No medical experts on sexual abuse were called by the defense.
Testimony of a foster mother didn’t match her previous statements.
No witnesses were called to support Mitch’s case except “mom.”
He was poorly (VERY POORLY!) represented at trial. There are enough holes in his case to drive a train through.
His case and recent exonerations in the news convince me that faith in our criminal justice system is misplaced.
Like our politics, our justice system is about money.
As Mitch wrote to me:
“Two things I know. Justice is for those who can afford it and the poor man must fight and pray for the truth.”
Please put your comments on the blog. Thanks
David Haymes M.D.