Devil's Advocate

What would a lawyer do to clear his client of child sex abuse charges?

"He tried to do a gay thing to me," he answered.

"Gay things?" she asked.

"Yeah," he responded.

Craig Lassig

"What do you mean when you say, 'gay things'?" she continued.

"You know," he said, his quiet voice growing even smaller. "You know. You know."

MacDonald prodded it out of him: Jordain had anally raped him—"he put his wiener in my butt"—more than 70 times over a period of three years.

"How did it feel?" MacDonald asked.

"Like I needed to go to the bathroom," he replied.

"What about pain?" she continued.

"It hurted," the boy said.

In cross-examination, Engh proceeded cautiously, careful not to come across as a monster attacking an already victimized child. But his questions yielded fruit. Most notably, the boy's disclosure that he had met with the prosecution "maybe between ten and fifteen" times before the trial, and perhaps once even before his interview at Midwest Children's. As Engh well knew, the prosecution team reported "visiting" the alleged victim before the trial six times. Six, ten, or fifteen, there were no recordings of these meetings.

The next day, it was Carolyn Levitt's turn to testify, and she and the prosecutor had an amiable, easy exchange.

"Based on your training and experience," MacDonald asked in her culminating question, "the 35 years in pediatrics, the thousands of children that you have seen, are the physical findings in this case"—that is, the fact that there had been no sign of any physical injury to the anus—"consistent with [the victim]'s allegations of sexual abuse?"

"Yes, they are consistent with it," she responded.

MacDonald turned the witness over to Engh.

"You have applied for grants from the U.S. Department of Justice, have you not?" he asked the doctor with undisguised disdain.

"That's correct," she replied. "We do have a justice grant."

"Right. And the Department of Justice is the same organization that pays the prosecutor here, isn't that correct?" he said, pointing to his adversary seated a few feet from him.

"I don't know," she responded. "Probably."

Engh, failing to get a more definitive answer, provided it himself. "It's not probably," he said. The lawyer proceeded to extract from Levitt the fact that a center she founded at her clinic, which helps set up similar clinics around the region, had collected $1.7 million from the Justice Department since 1999. Further, 10 percent of her roughly $180,000 annual salary came from that pot of money.

He then turned to Midwest Children's financial relationship with county law enforcement.

"When someone comes into your clinic, a police organization or law enforcement agency, they get billed for the evaluation, I assume?" Engh asked.

"They get billed in a somewhat complex manner," she replied. "If the police refer, and if there is confirmation that there is sexual abuse—so that there will be a police investigation—then in the state of Minnesota, there is a law that allows us to bill the police."

Engh quickly pounced on what he was hearing.

"And if there is a negative evaluation, you can't bill them?"

No, Levitt acknowledged, "because it's not investigated as a crime." In those cases, she said, her clinic invoices the children's insurers.

Engh had drawn blood. But if his intent in grilling Levitt had primarily been to establish her financial ties to law enforcement, he would level a far broader attack four days later when his expert witness took the stand.

That witness was Christopher Barden, a highly polished psychologist whom Engh had hired nearly a year before the trial to help him pore over psychological studies and Levitt's past courtroom testimony to prepare a line of attack. Taking the stand in a crisp suit, the 52-year-old Barden folded his trim frame into the witness box seat.

Engh began by asking Barden about the "mousetrap experiment," in which young children are asked repeatedly whether they have ever been injured by a mousetrap. Initially, they all say no. After repeated questioning, though, many of the children begin to say they have, telling compelling and detailed stories of when and where it happened.

The implication of this so-called "source amnesia" was clear. If the alleged victim had been interviewed by prosecutors 10 to 15 times, in addition to the conversations with his family and his statement at Midwest Children's, where did reality end and his perceptions begin?

After then probing his witness about the scientific pratfalls of "confirmatory bias"—a tendency to favor evidence that reinforces a preconceived theory—Engh asked Barden to comment on Midwest Children's videotaped interview of Jourdain's nephew.

"The flaws in that videotape are in my opinion fatal," the witness responded.

He soon explained why: "Even the most minimally trained interviewer knows that on that first videotape, you had better have the chain of interviewings of this child. You had better have, 'Who are the previous interviewers?' You had better have, 'Who has talked to you?' You had better have, 'What did they ask you?'"

The videotaped Midwest Children's interview, he pointed out, did not include these questions.

Engh prodded him along. "Is another problem with the videotape, and tell me if you agree with me, the failure to ask alternative theories?" he asked.

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