Devil's Advocate

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

"Yes," Barden answered.

"Is that consistent with the scientific method?" Engh continued.

"That's really what is missing here," Barden responded. "I mean, when you're interviewing someone, in that first interview that is on videotape, the alternative theory is, this kid has been programmed. And you have to explore that."

Craig Lassig

Barden continued, "There may be a number of alternative hypotheses. For example, when families split up, in family therapy training, you're often taught that kids will develop symptoms or claim problems that bring their family back together."

It was a deliberate allusion to the case at hand, in which the alleged victim's parents had split around the time he reported the abuse, and were brought closer in their concern over his well-being after the allegations were made.

"Sometimes kids are abused by a family member," Barden continued, dovetailing neatly with Engh's supposition that the boy's father, a reported heavy drinker, might have been the true culprit.

"In order to protect the family member, but also get out of the situation and to get help, they will accuse somebody else," Barden said. "Did that happen in this case? I don't know. Nobody bothered to ask."

Barden paused, letting the jury absorb what he was saying, then went on.

"Sometimes people make statements because they're mentally ill. Is this child mentally ill? I don't know. Nobody bothered to assess him."

On a roll now, Barden moved in for the kill.

"This is the difference between a psychological or medical interview, and an interview at a sex-abuse resource center, which is an advocacy group," he said.

After Engh had finished with Barden, MacDonald did her best to knock the psychologist down, pointing out that Midwest Children's finds evidence of sexual abuse lacking in about half the cases it handles. "If the bias would be to find cases that are consistent with the victim's allegations," she asked, "then you would expect to see statistics reflecting that, correct?"

"Not really," Barden responded. "That's a very complicated picture because it also involves the whole other chain of the investigative system," referring here to the weeding process performed by law enforcement.

The next morning, both sides made their closing arguments. MacDonald's was powerfully direct: Jourdain's nephew had accused him of a crime too horrible to make up. Several witnesses put him at the scene. And Midwest Children's findings were consistent with abuse. The evidence pointed toward guilt, she told the jurors, and guilty was the verdict they should return.

Engh's speech was passionate and full of anger. "Everything is upside down in this case," he said. "Every kind of assumption that you have about children and about medicine and about science is upside down. You assume children are cognitively competent to tell you what happened, that they know what happened and can remember what happened. And that's not the case here.

"Your assumption is that medicine is pure, that the patient matters," he said, his voice rising with righteous indignation. "And that assumption is turned upside down, because the clinic is funded by the prosecution."

After his hour-long argument, Engh closed with an emotional plea. He asked the jury to allow the "the angel of truth" to preside over their deliberation and set his client free. And with that, Paul Engh rested his case.

Three days later, on January 19, Jourdain arrived at Engh's office. The jury had deliberated for two days, and a verdict was imminent. Jourdain parked himself on the couch in the waiting room, girding himself for the decision.

Finally, at 5:00 in the afternoon, Engh emerged from his office with news. Jourdain, still on the couch, was reading a Time magazine to keep his mind occupied. Engh tapped him on the back. The verdict was ready.

"Well, here we go," the lawyer said. "Are you ready?"

Jourdain nodded, and the two walked the three blocks together to the courthouse in silence. As they approached the imposing building, Engh put on a show of strength. He patted Jourdain on the back.

"I think we got this," he told his client. "Let's see how good I did. You've got to believe me on this."

They went inside, through the metal detector, and up the elevator to the courtroom. Just before going in, Engh took his client aside. "Dan," he said, "if we win, we won. But if we lose, just take it."

Jourdain nodded his head, and they went into the courtroom and sat down. Unable to hold in the stress and pain of it any longer, he started to cry.

The judge, perched in his chair, turned to the jury: "Have you reached a verdict?"

The foreperson rose and spoke: "We have, your honor."

The bailiff brought the jury's decision to the judge. He read it aloud.

"On count one, aggravated sexual abuse of a minor, we the jury find Daniel Charles Jourdain not guilty."

Jourdain closed his fist and raised it in victory. Engh quickly pulled it down. It was only the first count.

And then count two: "Not guilty."

Jourdain and Engh embraced. After a few moments, the 21-year-old rose. Blood rushed to his head, and he nearly fainted. Woozily, he walked over to his parents and girlfriend, seated just behind him throughout the trial. When he reached them, he hugged them each in turn, everyone weeping in relief.

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