Devil's Advocate

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

Day was dawning on December 23, 2005, and the wooded reservation land surrounding Lower Red Lake was wintry and still. In a small house just a few feet from the lake's rocky southern shore, 19-year-old Daniel Jourdain, worn out from a day spent counseling drug users and alcoholics, lay in bed beside his two-year-old son, soundly asleep.

He awoke to a swarm of federal agents—the sign of a serious criminal matter on an Indian reservation—all guns and vests and urgent commands. They put him in handcuffs, hauled him into an unmarked SUV, and revealed a set of charges that hit him like a punch to the stomach: one count of anally raping and orally penetrating his 11-year-old nephew, and another count of repeatedly anally and orally sodomizing the boy over a two-year period. Each carried a sentence of up to life in prison without parole.

After five days in a federal holding pen, and just before his first appearance before a judge, Jourdain finally met his lawyer. Paul Engh, a bespectacled man with the lanky frame of a basketball player, sat down and introduced himself.

Engh, a top-dollar criminal defense lawyer who has worked on many high-profile murder and terrorism-related cases, agreed to take Jourdain's case from the Federal Defenders Office for far less than his going rate. Here, the Minneapolis attorney was keeping with the tradition of lawyers who help ensure that defendants of all stripes get effective representation.

Jourdain, a standout three-sport athlete and model student in his Red Lake High School days, professed his innocence. "That ain't me," Jourdain said, at a loss to explain the depth of his anger, fear, and humiliation. "I didn't do this."

"I believe you," Engh responded.

"Can you get me out of here?" Jourdain asked.

"I'll tell you what," Engh said, looking his new client in the eye. "I'll try to get you out of here today."

Engh made good on his promise. In that day's hearing, he pointed out that Jourdain had a toddler he was raising on his own, no criminal history, and a steady job as a chemical-dependency counselor. Also, he pointed out, if Jourdain posed such a danger to the community, it shouldn't have taken the Feds four months after the alleged crimes were reported to arrest him. The judge was swayed, agreeing to release Jourdain on a signature bond.

Getting his client home pending trial was one thing. Winning the case would be quite another.

Standing in the way was a damning piece of evidence: a videotaped interview with Jourdain's nephew. The statement was made at the St. Paul-based Midwest Children's Resource Center, a division of Children's Hospitals and Clinics of Minnesota, with a 20-year track record of interviewing and examining children who've alleged sexual abuse. Statements produced there, admissible in court and carrying the stamp of medical authority, have been key to convicting hundreds of defendants in Minnesota state and federal courts over the last two decades.

If Engh was going to win an acquittal for his client, he would have to call the validity of that statement into question. He would have to go to war with the people hailed as the champions of abused children.

 

To understand how Midwest Children's came to occupy a central role in child sexual abuse investigations, one needs to trawl back through a legal fiasco that played out more than two decades ago in Jordan, Minnesota.

It started in September 1983, when Christine Brown, a mother of five, went to the local police station with a disturbing allegation. Brown told the cops that her nine-year-old daughter had been molested by James Rud, a garbage collector and convicted sex offender who lived in a trailer park in town.

The investigation quickly mushroomed. Rud, it emerged, had allegedly abused several children, and when prosecutors interviewed them, they told elaborate and detailed stories of orgies. One young boy, for instance, recalled a party where women in transparent clothing made him have oral sex with both kids and grownups as photographs were taken.

Arrests and charges soon followed, and before long, 24 residents of Jordan—including Christine Brown, who had first come forward to the police—stood accused of molesting 37 of the community's kids.

The investigation, led by Scott County Attorney Kathleen Morris, secured the conviction of Rud, who pled guilty to 10 counts of child sexual abuse. But it soon took an even more startling turn: At least seven children were now claiming to have witnessed murders that occurred during the alleged orgies. One young girl told of a seeing a baby sodomized, then beheaded. A 12-year-old boy described seeing seven children being stabbed, mutilated, or shot, one of them in front of 25 eyewitnesses.

Shortly after announcing news of the alleged homicides, Morris, whose aggressive tactics were beginning to raise eyebrows, was confronted with a court order to release documents in the wide-ranging sex abuse cases. Citing her desire to protect the integrity of the homicide investigations, Morris dropped all pending sex charges. Less than a week later, under mounting pressure to explain her actions, she turned the case over to Skip Humphrey, Minnesota's attorney general.

Humphrey appointed more than a dozen state and federal investigators to determine just what had happened in Scott County. In early 1985, after his team had re-interviewed the children and retraced Morris's investigation, he issued a report. It was unsparing.

Children had been interviewed over and over again, he wrote, and their stories, oftentimes defying logic and uncorroborated by any physical evidence, kept changing. One girl, Humphrey noted, had been interviewed more than 20 times, with only four of those interviews reflected in investigators' notes. Another had been interviewed between 30 and 50 times. Moreover, Humphrey wrote, because some of the children had been interviewed together, there was potential for a "cross-germination" of allegations.

After the AG's team of investigators had finished, four children had recanted their murder allegations and three other kids were deemed not credible. As for the sex abuse allegations, Humphrey announced that no further charges would be brought.

"The manner in which the Scott County cases were handled has resulted in it being impossible to determine, in some cases, whether sexual abuse actually occurred, and if it did, who may have done these acts," Humphrey said at the time.

With Humphrey's report came reform. A law enacted in 1986 encouraged law enforcement to work in tandem with trained medical workers in order to streamline child sex-abuse cases, and to avoid multiple interviews of the children. That year, Children's Hospital opened the Midwest Children's Resource Center, a clinic set up to evaluate potentially abused children. It was among the first "children's advocacy centers" of its kind in the country, a model established by an Alabama prosecutor who set out to simplify the process of interviewing children in sex abuse cases. Today, there are nearly 500 such centers nationwide, and Midwest Children's serves as a regional hub, helping to set up and train staff at newer centers.

Midwest Children's director is pediatrician Carolyn Levitt, a tall woman with blond curls who has run the center for all of its 20 years. Levitt has been a pioneer in the relatively young field, authoring textbook chapters and journal articles on the subject of how to medically diagnose child sex abuse.

Children who come to her clinic—about 1,400 a year—are first interviewed and then given a medical exam. The clinic's interview technique, which has been emulated by many other centers, was developed by Levitt.

As she explains it, the objective of the interview, which is conducted in one of the clinic's two exam rooms, is to collect salient details from reticent children while steering clear of leading questions. "You have to make sure the child is sturdy enough to tell their own story," she says.

Sturdiness matters because if the child tells of sexual abuse during the interview, and if Levitt and her staff make a finding that is consistent with abuse having occurred, odds are the tape will be admitted as evidence for the prosecution in a subsequent criminal case.

The federal courthouse in downtown Minneapolis is a stark, modern building with a spare, wide-open lobby that leads to a claustrophobia-inducing stand of elevators. A few flights up are the courtrooms, including the one where Daniel Jourdain's fate was decided.

On January 11, more than a year after his arrest, Jourdain sat at the front of the courtroom. He was, by his own account, a ball of nerves, dressed in a shirt and tie, his scant goatee shaved at Engh's suggestion. Jourdain watched as Assistant U.S. Attorney Erica MacDonald, persuasive and quick on her feet, laid out the clear, compelling, and simple narrative of her case: Jourdain babysat his nephew many times from 2003 until the spring of 2005. On many of those occasions, she alleged, Jourdain had taken his nephew to the bedroom and both orally and anally sodomized him. There would be witnesses to corroborate that Jourdain and his nephew had spent time together at his house, and two family members would testify that the boy had either hinted at or told them that Jourdain molested him.

When MacDonald was done, Engh rose to address the jury for the first time.

"It's a wonderful thing that we can be assembled here, that we can dispute the government's contentions by inviting strangers to see it," Engh told the jurors. He insisted on his client's innocence and alluded to the holes he would poke in the prosecution's seemingly seamless story—for one thing, Midwest Children's found no injuries to the boy's anus.

Then his opening statement took an unorthodox turn. Engh, who had spent months tracking down the money trail from the Justice Department to Midwest Children's, attacked Carolyn Levitt, who would be appearing as an expert witness for the prosecution, both on the science behind her work and the funding behind her clinic. "This is big business, ladies and gentleman," he said. "There are grants. There is lots of money, and it's all funded by law enforcement."

When he was done, it was time for the first witness to testify.

The prosecution called Jourdain's nephew, now 13 years old. On the witness stand, he answered MacDonald's questions so softly that she had to ask him to sit closer to the microphone. The prosecutor quickly got to the point, asking the boy what Jourdain had done to him.

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

"Gay things?" she asked.

"Yeah," he responded.

"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.

"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."

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.

 

It was about a month later that lawyer and client saw each other again. Engh was in Red Lake on business, and met Jourdain for lunch at the smoke-filled, dingy casino in town. Afterward, they drove the five tree-lined miles to Jourdain's house.

It was a crisp afternoon, the lake reflecting the winter daylight, and the two talked about Jourdain's future plans. He had lost his job as a result of the case, and finding work, even after the acquittal, was proving difficult. He was considering the Army, he told Engh, so he could get some money for college.

Before long, it was time for Engh to head home. He walked past the broken basketball hoop in front of the garage, and got in his car. Jourdain, not quite ready to part ways, got in beside him. The younger man handed his advocate a folded red handkerchief. Engh unwrapped it, and inside found a foot-long, white-flecked eagle feather. In Jourdain's Objibwe tradition, such a gift is a sign of respect, of deference to a battle-tested warrior, and of protection.

The two hugged a final time, and Jourdain got out of the car. Engh set out on the long drive back to the Cities.

But while Engh has savored the victory, Levitt, sitting down recently in her clinic's conference room, takes issue with his criticisms of her interview methodology and her motivations.

It is not her clinic's role, she says, to establish who else has talked to the child, or whether the child may have been encouraged to fabricate allegations. It's up to law enforcement—and the defense attorney, should the case go to trial—to determine what other factors may be influencing the child's statement, she says.

"We're not looking for an alternative hypothesis," she explains. "We're looking for details from the child."

The doctor also bristles at the suggestion that her medical opinion has been bought by law enforcement. "I'm not working for the Justice Department," she says. "I am working for Children's Hospital."

The reimbursement arrangement with local law enforcement is not ideal, she concedes, but she blames that on cash-strapped counties looking for ways to cut corners in their accounting. In any event, she says, where the money comes from in a given case has no influence on her clinic's diagnosis. "The videotape comes out," she says. "We don't change the videotape."

Ultimately, she says, criticism of her in court comes down to one word: advocacy.

Defense attorneys—while none have been as systematic as Engh in their attacks —routinely say her advocacy for children makes her a handmaiden of the prosecution.

"We advocate for children's needs. That's what a children's hospital does," she says. "It's not a dirty word at all."

Defense attorneys will always try to prestidigitate the shadow of a doubt in their cases, Levitt says, but she isn't worried that Engh's success will result in other lawyers following his example.

But perhaps she should be.

 

At the end of April, the chief federal defender in Minneapolis, Katherian Roe, put together a conference for criminal defense lawyers. She asked Engh to give a talk about his case. His topic: "Discrediting experts in child sex abuse cases."

In a large, airy room in the federal courthouse, in front of more than a hundred lawyers—the biggest crowd of the day—Engh told his story. He explained how he'd dug up the federal government grants to Midwest Children's after trying, and failing, to get them from the prosecution, how he'd read up on the science, and how he'd assembled and then executed his attack on Carolyn Levitt.

"The majority of the people in the room were shocked by what he revealed about the state's witness," says Brockton Hunter, an attorney who saw Engh's talk.

Tom Plunkett, a prominent local lawyer, recalls the reaction from the normally jaded crowd of defense attorneys in attendance this way: "Jaws were hanging. Eyes were wide. Nobody asked a question until the end, because the next words coming out of his mouth—it was as though they were coming out of the burning bush."

After the talk, more than a dozen lawyers came up to Engh, all wanting to know more about how he'd undermined Levitt's authority, and how they might be able to do the same in future cases. He directed them to the court transcripts, which have since been copied by several of Engh's colleagues. Other lawyers have also called him, asking for copies of the grant information that he gathered.

Sitting in his plant-filled office on a recent afternoon, with the feather framed on the wall behind him, Engh looked almost sheepish as he discussed the impact of the Jourdain case.

"I wasn't looking for this," he said of the attention he has attracted, inlcuding an invitation to give his talk again later this year in Duluth. "I'm not a big cause guy. I'm a lawyer. The great narcotic of law is winning. I just wanted to win."

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