The Case of Marilynn (Lynn) Malcom

Malcom Clemency Petition

Michael R. Snedeker

Lisa R. Short

Snedeker, Smith & Short

1752 S.E. Hawthorne Blvd.

Portland, Oregon 97214

Tel: (503) 234-3584

Attorneys for Petitioner

Marilynn Malcom

BEFORE THE CLEMENCY AND PARDONS BOARD

FOR THE STATE OF WASHINGTON

In the matter of )

)

MARILYNN MALCOM, )

)

Petitioner )

___________________________________)

PETITION FOR CLEMENCY AND MEMORANDUM AND

EXHIBITS IN SUPPORT THEREOF

INTRODUCTION

When the subject of child sexual abuse surfaced in the early 1980's, it had many cleansing effects. Those who had been molested were allowed, and then encouraged, to describe what had happened to them. Stories were told by persons across the socioeconomic spectrum illuminating a part of our collective reality that had been suppressed by an unspoken consensus.

A swinging pendulum, however, does not stop in the middle. The possibility of child sex abuse soon became the inevitability of child sex abuse. As lives had been wrecked by society's refusal to acknowledge sexual abuse of children by adults, lives in the mid-1980's were ruined by false charges of large-scale sexual abuse of a grotesque nature that created a moral panic chillingly reminiscent of the hysteria that gripped Salem, Massachusetts in 1692.¹

Abuse was inferred from what previously had been viewed as innocent circumstances; non-deviant or marginally deviant behavior became fertile ground for the growing of charges. Sharon Krause, the principal investigating officer in the present case, told a Salt Lake City audience in 1986 -- four months before she began developing the charges against Ms. Malcom -- that children often only hint at sexual abuse and that parents must look for signs. Signs, Krause warned, include a child's "acting out anger with peers, short attention span in school, compulsive cleanliness, or change in grades." (See NEXIS printout of U.P.I. story dated Thursday, October 9, 1986, attached hereto as Exhibit A.) Krause echoed the fervency of a national movement of those who would see child sexual abuse in the most innocuous of circumstances. Thus, behaviors long recognized by psychologists and by parents as well within the continuum of normal development became pathologized, and labelled as evidence of sex abuse (see, e.g., Ilg, F., et. al., Child Behavior, New York, Harper & Row, 1981); parents mobilized to find abuse in commonplace behavior or behavior that is now understood as having nothing to do with child sex abuse.

The driving forces behind this movement were law enforcement investigators, prosecutors and child welfare professionals -- individuals such as those responsible for the construction of the charges against Ms. Malcom. They undoubtedly meant well, believed they were acting in the best interest of the children, and did not perceive themselves as deliberately or inadvertently manipulating the children involved into making false statements. This does not make the product of their efforts any more true, or Ms. Malcom's fate any less tragic.

The case against Marilynn Malcom was created, not discovered. She is a riveting example of an innocent woman caught in the gyrations of a national hysteria, a social backlash by zealous officials seeking to make up for decades of ignorance about and indifference to child sexual abuse. This Board is empowered to make recommendations to the Governor for clemency in extraordinary cases where the interests of justice require it. (RCW Section 9.94A.260.) Ms. Malcom will present for its consideration a summary of the extraordinary circumstances that warrant favorable action by the members of the Board and by the Governor himself.

BACKGROUND

Marilynn Malcom was born in 1946. In 1969, she married Jim Malcom. They had two children: Kirk, born in April of 1974, and Jennifer, born in December of 1977. In 1982, after 13 years of marriage, she and her husband divorced. The children lived with Ms. Malcom, and spent two nights a week and every other weekend with their father. Between 1982 and 1986 there were numerous disputes between the two parents that began to dampen down after Jim Malcom remarried in 1985. (9/15/87 RT 44-45; 9/17/87 RT 15-17, 41, 73, 78, attached as part of Exhibit *.)²

Ms. Malcom's home in late 1986 was located on the outskirts of Vancouver. Her neighbors included the "Morgan" family, from whom she rented her house, and the "Logan" family. The neighbors' children -- "Chuck Morgan", 6 years old; "James Morgan", 4 years old; "Neil Morgan", 3 years old; and "Brian Logan", 4 years old -- played with Ms. Malcom's children and were often around the house. (9/10/87 RT 57-60, 97-100; see Motion In Limine, attached hereto as Exhibit C.) From 1985 to the spring of 1986, Donna Binford and her children, Ryan and Rebecca, lived with Ms. Malcom and Kirk and Jennifer. (9/16/87 RT 56 et. seq.)³

In late 1986, Ms. Malcom started the Rainbow Christian Daycare Center and advertised for business in the local paper. The Center, located in her home, opened in November of 1986. Ms. Malcom sought a license, and attended a requisite class. At the same time, she worked on call as a dental assistant, and sold Herbalife products as time permitted. By the end of the year, there were three children in the daycare: "Mark Mason", 6 years old; "Michael Richards", 4 years old; and "Robert" "Richards", 2 years old. Ms. Malcom also informally cared for the three "Morgan" boys and "Brian Logan" on an occasional basis. And she cared for her own children as well who were then 12 years old (Kirk) and 9 years old (Jennifer). Nineteen-year old Kate Sullivan acted as Ms. Malcom's childcare assistant.⁴ (9/16/87 RT 29-31; 9/17/87 RT 15-17.)

HOW THE CHARGES AROSE

A. Chronology of Events

Sheriff's office reports indicate that the first allegations of sexual abuse in this case originated with Ms. Malcom's neighbor, Lori "Logan", the mother of "Brian". Ms. "Logan" had been previously "suspicious" of Kirk Malcom, and "had heard" that Kirk taught "Chuck" "Morgan" to masturbate. On January 28, 1987, Ms. "Logan" and her four-year-old son "Brian", watched a videotape on sexual molestation by strangers entitled "No, go tell." Afterward, she asked "Brian" if Kirk had ever "done anything to him." "Brian" supposedly told her of graphic sexual activity involving Kirk and Jennifer Malcom and the "Morgan" boys. (See Clark County Sheriff's Office [hereafter, "CCSO"] Utility Report, 1/30/87, 10:30 a.m., by Det. Steve Nelson, attached hereto as part of Exhibit D.)⁵

Ms. "Logan" immediately told Ms. "Morgan" the details of "Brian"'s supposed allegations. Ms. "Morgan" in turn questioned her oldest son, "Chuck", who denied that anything of this nature had happened to him. However, according to Ms. "Morgan", "Chuck" said that the acts "Brian" supposedly described to his mother did happen to his brothers, to "Brian", to "Michael Richards" and to "Mark Mason". Ms. "Morgan" also questioned her other two children, "James" and "Neil". According to her, both told her about acts of a sexual nature involving Kirk. (See Exhibit D, CCSO Utility Report, 1/29/87, by Officer Lyn Farr, re: "Morgan".)

On January 29, Ms. "Logan" and Ms. "Morgan" both telephoned the Clark County Sheriff's Office and reported what their children had allegedly told them. (See, ibid.; see also Exhibit D, CCSO Utility Report, 1/29/87, by Officer Lyn Farr, re: "Logan".)

On January 30, 1987, Ms. "Logan" and "Brian Logan" went to Detective Nelson's office. According to Nelson's report, Ms. "Logan" told him that "Brian" said that Kirk inserted a screwdriver into his rectum; "peed" into his rectum; "peed" into a squirt gun; that Kirk and Jennifer took turns licking the penises and anuses of himself and the three sons of next-door neighbor Gail "Morgan"; and that Kirk threatened to squirt him with "pee" if he ever told his parents. However, when Nelson asked "Brian" questions, "Brian" ignored him and refused to answer. The only part of the allegations "Brian" confirmed to Nelson involved the squirt gun. (See Exhibit D, CCSO Utility Report, 1/30/87, 10:30 a.m., by Det. Nelson.)

Also on January 30, Nelson interviewed "Chuck Morgan" about the allegations relayed by Ms. "Morgan". Ms. Malcom has never been provided with any report of any interview or discussion between Nelson and Ms. "Morgan". According to Nelson, "Chuck" told him everything he had told his mother. (See Exhibit D, CCSO Utility Report, 1/30/87, [no time noted], by Det. Nelson.)

Shortly after these initial interviews, Sharon Krause joined Nelson in interviewing alleged child victims and at least one therapist was used to interview and "counsel" "Mark Mason", Lori "Logan" and "Brian Logan". Numerous interviews were conducted in February. (See Exhibit *, passim.) However, despite the apparent momentum on the case reflected in the February reports, no reports have ever been provided to Ms. Malcom reflecting any official activity on the case during the month of March, 1987. The next report that appears is dated April 6, 1987. This report contains the first reference to Ms. Malcom as an alleged participant in sexual activity with children.⁶ The stated source of the report was Lori "Logan" who claimed that her son "Brian" spontaneously told her while watching television that "Lynn was there when Kirk [sexually abused] us." (See Exhibit *, CCSO Utility Report, 4/6/87, by Det. Nelson.) Despite this explosive accusation, no reports apparently exist of any official activity or investigation of this case for the next seven days.⁷ After this inexplicable hiatus, the next mention of this investigation occurs on Monday, April 13, 1987. Nelson there reports that the "Morgan", "Logan" and "Mason" fami"Logan" met at Lori "Logan"' home the night before where the children purportedly aimed new accusations of violence and sexual abuse at Lynn Malcom. The accusations involved bizarre and incredible tales of large-scale child sexual abuse supposedly perpetrated by Ms. Malcom. These allegations were related by Lori "Logan" and Gail "Morgan" in phone calls to Detective Nelson. (See Exhibit *, CCSO Utility Reports, 4/6/87, 4/13/87, by Det. Nelson.) Subsequently, on April 20, Jennifer also accused her mother of similar acts after lengthy interviews by Sharon Krause. (See Exhibit *, CCSO Utility Report, 4/16/87, 4/20/87, by Det. Krause.)

Kirk Malcom was arrested on *** on six counts of rape. On April 20, he pleaded guilty to *** indecent liberties. After Jennifer's accusation that same day, Krause interviewed Kirk in order to obtain accusations from him against his mother. As he had several times before, Kirk denied that Ms. Malcom was involved in any way in child sexual abuse. (See Exhibit *, CCSO Utility Report, 4/20/87, by Det. Krause.) On April 22, 1987, Krause again interviewed Kirk seeking accusations from him against his mother, and Kirk again denied his mother's involvement; however, later during that same interview, Krause finally obtained accusations from Kirk against Ms. Malcom. (See Exhibit *, CCSO Utility Report, 4/22/87, by Det. Krause; see also 9/15/87 RT 5-6; Declaration of Dr. Maggie Bruck, attached hereto as Exhibit *, at pages 48-51***.)

Thus, Ms. Malcom -- who despite over two months of investigation had never been mentioned by any child as a perpetrator of anything and who had never been arrested for anything in her life -- became in the span of two weeks, the center of unspeakable accusations of child sexual abuse and incest.⁸

In May of 1987, investigators began producing accusations from the children that even the prosecutor not only eventually eschewed but also fought vigorously and successfully to suppress from the jury. Charges simultaneously surfaced from several children that Ms. Malcom and Kirk had committed multiple murders; had engaged in Satanic ritualistic abuse of the children; had blown up people with bombs; had moved dead people to junkyards; had a computer stored in a junkyard under the hood of a car that could produce pictures of murdered children; and much, much more. (See Exhibit *, CCSO Utility Reports of 5/14/87, by Det. Nelson.) As we detail below, these allegations never reached the jury even though they came from the same source and resulted from the same process as the charges of which Ms. Malcom convicted.

B. Analysis of Investigation

Krause and Nelson's interviews of the child witnesses and alleged child victims were characterized by an absence of verbatim recordings, the destruction of contemporary interview notes, and rampant interviewer bias.

Dr. Maggie Bruck, one of North America's leading cognitive psychologists and an expert on children's suggestibility, has carefully examined dozens of reports prepared by Nelson and Krause in this case. In a declaration relying on these reports, Dr. Bruck assesses the reliability of this investigation. (See Declaration of Dr. Maggie Bruck, attached hereto as Exhibit *.) Dr. Bruck concludes that it is impossible to tell when or if any of the children were actually abused or whether the accusations instead resulted from suggestive and coercive interrogation techniques; this is because the interviewing/interrogation of the children by their parents and by Nelson and Krause was so insistent, suggestive, and coercive as to render any accusations gleaned therefrom unreliable.

Dr. Bruck demonstrates that the questioners used the following suggestive techniques:

Insisting on confirmatory statements while ignoring disconfirmatory statements;

Repeatedly interviewing children;

Sharing information with each child ostensibly gotten from another child;

Repeating questions across interviews and within interviews;

Creating an atmosphere of accusation against Ms. Malcom, setting an emotional tone which conveyed both implicit and explicit threats and bribes to the children for the desired answers;

Telling the children that the authorities already "knew" that something happened and Ms. Malcom was involved;

Rewarding children with presents for "telling;"

Invoking their high status to encourage accusations against Ms. Malcom;

Using stereotype induction, or the describing of Ms. Malcom as a bad person;

Using sexual props and cues;

Relying on peer pressure; and

Using visualization techniques directing the children to "think hard" about being abused by Ms. Malcom.

Each of these techniques can induce false accusations. When used in combination, as in the present case, they lead to false charges of sex abuse in very short order. Children can come to believe their false statements, and present them so convincingly that no adult can tell the difference. (See Exhibit *, p. 50.)

As Dr. Bruck observes, the interview techniques utilized on the alleged victims in this case went beyond suggestive and were sometimes very coercive. The length of questioning sessions was grossly out of proportion to the age of the children; they lasted up to several hours. Interviews of such length not only are painful to children, but they have been shown to produce more incorrect statements from them. Here, sessions of more than one hour were commonplace.

Several interviews of the children were done without any report at all being made. The written reports prepared by Sharon Krause, despite the liberal use of quotation marks and assurances that everything of importance was included, are demonstrably inaccurate and incomplete. (See Exhibit B, passim.) In addition, the interviews by Krause show the use of proper techniques only when she is seeking a recantation of statements so bizarre that they would have jeopardized the entire case against Ms. Malcom.

THERE IS A CONSENSUS AMONG THE RELEVANT LEGAL, MEDICAL AND PSYCHOLOGICAL EXPERTS THAT COERCIVE AND SUGGESTIVE INTERVIEW TECHNIQUES CAN ENGENDER FALSE AND UNRELIABLE EVIDENCE.

The possibility that suggestive or coercive questioning can produce unreliable testimony has long been recognized by the United States Supreme Court, even in cases involving adults. (See U.S. v. Wade (1967) 338 U.S. 218, 228-229; Stovall v. Denno (1968) 388 U.S. 293, 58, 62.) The high court also recognizes that improper interviewing by adults can prompt unreliable and false charges of child sex abuse. In Idaho v. Wright (1990) 497 U.S. 805, the court agreed with the Idaho Supreme Court that the improper admission of hearsay testimony by an interviewer regarding accusations of sexual abuse required reversal, because the evidence was not reliable. The court further warned that "if there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness." (Id., at 826-827.)

In 1985, California's Attorney General was asked to investigate the so-called Satanic Church case in Bakersfield, California, where up to 60 children and 77 adults were thought to be involved in a devil-worshipping sex ring. The case collapsed when the children, as if to demand incredulity, accused a deputy sheriff, a social worker, and a prosecutor who had been involved in prosecuting cases like the one brought against Ms. Malcom, of themselves being part of a baby-killing Satanic Church. He concluded:

"If any aspect of an investigation into child sexual abuse could be called critical, it would be the victims' interviews. The manner and frequency of these interviews can determine the course of an investigation because in many of these cases the children's statements constitute almost all the evidence." (Attorney General's Report, fn. 6, p. 70.)

As Dr. Bruck has shown, research by cognitive psychologists now leaves no doubt that by using certain directive interview techniques, children can be led into making false accusations.

Much of the definitive research has been done in this decade. However, there has long been a concern among researchers and writers about the interview process and the possibility of distorting a child's memory by manipulative interview techniques. Two researchers, who acknowledge that many of their recommendations are slanted in favor of prosecution of sex abuse cases, emphasized in 1985 that an interviewer should be highly trained and unbiased, because the least accurate reports from children are obtained by interviewers who harbor preconceived notions about what happened. (Goodman, G., and Helgeson, V., "Child Sexual Assault: Children's Memory and the Law," 40 U. of Miami Law Rev. 181, 195, 207-208 (1985), citing H.R. Dent, The Effects of Interviewing Strategies on the Results of Interviews with Child Witnesses, in Reconstructing the Past 279 (A. Trankell, ed., 1982.).)

A leading text for practicing lawyers concludes a summary of applicable research by saying, "While young children rarely fabricate incidents on their own, they may succumb to suggestive coaching and questioning by adults with preconceived notions of what happened." (Myers, J., Child Witness Law and Practice (1987) section 10.36, p. 503).

Published Research Indicates that a Significant Percentage of Charges of Child Sex Abuse Are False.

According to the National Child Abuse and Neglect Data System (NCANDS), a branch of the U.S. Department of Health and Human Services, an estimated 41 percent of reports of child abuse in 1991, the most recent year for which data is available, were either substantiated or "indicated" (not substantiated with credible evidence but also not shown to be unfounded.) The other 59 percent were unfounded. This percentage was approximately the same as that reported in 1990. (See NCANDS Working Paper2, 1991 Data component, p. 27. [Washington D.C., 1993].)

Ms. Malcom is aware of one study that sought to determine the truth or falsity of charges of child sexual abuse in the contest of a custody dispute.⁹ Of the cases where charges of child sexual abuse were made and a determination of validity was made, 50% were valid, 33% were not valid, and in 17% of the cases, the ruling was indeterminate.

Dangerous and Improper Interview Techniques Have Produced False Charges Leading to the Promotion of Multi-victim, Multi-Perpetrator Child Sex Abuse Cases. Multi-Perpetrator Child Sex Abuse Cases.

Numerous prosecutions from around the United States have been discredited by revelations of the questioning techniques used by overzealous investigators.¹⁰

The Modern Consensus -- False Charges Are a Reality

Many researchers in the early '80's believed that the likelihood of children ever making false charges of sex abuse was so negligible as to not be worth worrying about. Now, however, there is little doubt among any serious researcher or clinician that the danger of false charges is real.

"Improper investigative techniques are leading to premature and incorrect assessments of the child's experiences and to overdiagnosis of child sexual abuse." (Quinn, et al., "Resolved: Child Sex Abuse is Overdiagnosed," 28 J.Am.Acad.Child & Adolescent Psychiatry 789 [1989].) Every researcher who has attempted to assess the incidence-rate of false allegations has discovered that false allegations exist. (Younts, D., "Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions." 41 Drake L. J. 691 (1991) at 732-733.)

Seattle's Lucy Berliner, one of the most influential social workers in the field, avers that "No competent professional disputes the fact that some small percentage of sex abuse reports are fiction." (Quinn, et al., supra, at 793.)

This statement differs from Ms. Berliner's view in 1981, when she asserted that "There is no evidence to support the idea that children falsely report sexual abuse." (Conte and Berliner, "Sexual Abuse of Children: Implications for Practice," 62 Social Casework: J. Contemp. Soc. Work 601 [1981], emphasis added.)

There is now a general recognition among virtually all experts that false charges of child sex abuse are very real.

All the typical characteristics of a case that results in false allegations that result in a criminal conviction are present here.

The Trial

Exclusion of Testimony about or from Six of Eight Children Allegedly Abused; Trial Counsel's Failure

to Inform the Jury Know How this Case Arose

Ms. Malcom was charged with and convicted of crimes against seven children: Kirk Malcom, Jennifer Malcom, "Chuck" and "James Morgan", "Mark Mason", "Brian Logan", and "Michael Richards". Incredible as it seems, however, the jury heard nothing at all about any of the statements made by any child save Kirk and Jennifer. The prosecutor successfully argued for the suppression of any mention of the statements made out of court by "Chuck", "James" and "Neil Morgan", by "Brian Logan", by "Michael" "Richards", and by "Mark Mason". (See 94/87 Motion in Limine, Exhibit *.)

In the course of arguing to keep from the jury what these young children said (as well as his own earlier harsh appraisals of their parents), the prosecutor described how the parents got together, shared information, improperly suggested things to the children, and didn't use reliable interview techniques. He stated that he had "several very heated conversations about Mrs. "Logan" hindering this investigation." According to the prosecutor, wild and false charges of murders and rituals were the product of Lori "Logan"' improper questioning of "Brian"; she then passed these allegations on to Gail "Morgan" who in turn grilled her own children. Ms. "Morgan" then allowed Ms. "Logan" to question the "Morgan" children, leading them to also make false charges. From there, the lie-telling spread to other children. (9/8/87 RT 183.) The prosecutor continued: the charges of "killing of children and so forth, which the police later determined not to be true;********* came from Lori "Logan" interviewing her son "Brian", who you found to be an incompetent witness.....Most of the statements came from his mother, who supposedly got them from him...." (9/8/87 RT 118-120.)

The prosecutor told the court that when this happened, he became very concerned, and convened a meeting of local law enforcement officials and the parents of the alleged victims.

"We advised them that if their children told them things, that's fine; but they should listen and not question. And we specifically talked about the dangers of leading questions and the dangers of sharing information with one another. The "Logan" and the "Morgan"s live in the same neighborhood and interact regularly just by proximity. Their kids play with each other.

"And we warned them about the dangers of sharing information their children may have revealed. They did not heed our warnings. As a result, a lot of this stuff that we've been talking about today was elicited, not just from one child, but then it came from another, and looked on the surface like there might be some -- it might be real, there might be something to it because it was coming from more than one source.

"As we developed, or delved into it deeper, it became clear that it was shared information, improperly suggested to the kids, improperly elicited, not using reliable techniques and so forth." (9/8/87 RT 183.)

What the prosecutor did not divulge to the court, however, is that the investigating officers who developed the very charges which he took to trial used precisely the same techniques he so roundly condemned as resulting in false allegations. The prosecutor also inexplicably ignored clear evidence that all the charges against Ms. Malcom and her son Kirk originated in the same manner -- with parents Lori "Logan" and Gail "Morgan". (See Exhibit B, pp. *.)

Defense counsel was no help. Reports made it clear that it was Ms. "Logan" who started this entire investigation -- and it was she who expanded it in April to include Ms. Malcom. But counsel for Ms. Malcom did nothing to enlighten the jury. He occasionally told the court that the children seemed to have been manipulated, but he never made a coherent offer of proof.

Early on, counsel had an extremely difficult time articulating why it was important to have an expert look at the pattern of disclosures by the children to see if they were reliable. Finally the trial court said, "I'm still trying to see if there's a reason to give you an expert and I don't yet see it, I guess. Perhaps we best wait until you develop your own theory of why you need one." Counsel agreed. (8/31/87 RT 28-30.) The court ultimately awarded counsel money for the hiring of such an expert (RT **), but to no avail. Counsel did not follow through and obtain one, or explain what difficulties he may have had that prevented him from doing so.

Counsel indicated early in the trial that he wanted to call the youngest children. For reasons never explained, he decided not to call any of the children but "Chuck" and "Mark", and then for the limited purpose of showing that they had named adults who were not prosecuted. (9/8/87 RT 131-132.) Counsel continually vacillated on whether or not he wanted the youngest children to be found competent or incompetent, and ultimately asked that the trial court find them incompetent, even though their testimony was either exculpatory (five-year-old "Michael" "Richards" said that all he ever did at Lynn's house was "play" (9/8/87 RT 151-153); see also the testimony of "Mark Mason" [9/8/87 RT 161]), or the product of extremely leading questions. (See, e.g., testimony of "James Morgan", 9/8/87 RT 94-98.])

Counsel asked no questions of Lori "Logan" or Gail "Morgan" about their strenuous leading of the children, their belief that this was a so-called Satanic Ritual Abuse Case, their rewarding their children for "telling' by buying them toys, or their persistent belief that there were dead children hidden somewhere by Ms. Malcom and many others. Instead, counsel argued that he should be able to present to the jury their opinions that the police manipulated their children (they felt that Krause and others badgered their children into false recantations of murder and ritual abuse charges). The trial court properly ruled that this was an inadmissible opinion, since the parents were not present during the interviews.

Counsel finally told the court that he did not want to ask either the parents or the children what the children said outside of court. He said that he did not see how it was relevant that "Chuck" indicated that during an interview by the government that Lynn killed children and buried them in a junkyard after being questioned over and over about it by Lori "Logan", who had just bought a book on "Satanic abuse" prior to extracting these charges. Counsel never sought to glean from Krause or Nelson what techniques they used, why they used them. He never sought to confront either Nelson or Krause with the improper investigative techniques revealed throughout their reports.

Counsel vividly demonstrated how oblivious he was to the importance of the circumstances surrounding the official investigation and initial circumstances when he stated that he did not want to call any children to say that they had not ever mentioned Ms. Malcom initially, because there was "no evidence presented in this case that they did mention her originally." (9/17/87 RT 181.) Ironically, the trial court clearly understood the relevance, and informed counsel -- again to no avail -- that it would indeed be relevant and admissible evidence to call witnesses who would testify that Ms. Malcom was not mentioned either around the time of the supposed molestations, or later during the first wave of parental and police interviews. (9/17/87 RT 180-181.) Still, counsel failed to act.

In sum, there is little doubt that had counsel sought to place before Ms. Malcom's jury evidence the fact that this case was the product of overbearing parents and overzealous investigators, the trial court would have been receptive. No such witnesses were called, however. Counsel did not even expend the monies allotted by the trial court to consult with an expert on the issue of directive investigative techniques.

Testimony of Kirk and Jennifer Malcom

The child witnesses directly presented by the prosecution were Kirk and Jennifer Malcom. Their testimony deviated in material respects. Jennifer, for example, said that nothing had happened outdoors at the "fort" made by Kirk and Ryan Binford, while Kirk testified that much of the alleged abuse he described took place there; he told the jury that Ms. Malcom directed elaborate sexual activity involving six or seven children and herself while out of doors, near an area that was occasionally visited by neighbors.

The testimony was also largely the product of leading questions. Here is a sample of the questioning of Jennifer: Prosecutor: "Did you ever see your mom doing anything with Kirk's front private part? Besides putting in her twinkie by -- or putting -- with Kirk's twinkie, besides putting it in her front private part?"

Jennifer: "No."

Prosecutor: "Did you ever see her do anything with her mouth?"

Jennifer: "Yes."

Prosecutor: "What did you see?"

Jennifer: "Kiss it."

Prosecutor: "Okay. Did you ever see her do anything with her fingers or hands?"

Jennifer: "No."

Jennifer's testimony consists almost entirely one- and two-word answers to detailed questions by the prosecutor, whose voice tells the story.¹¹ She has recanted entirely her accusations against her mother made at trial, and now tells how she was badgered and duped into making them. (See Declaration of Jennifer Malcom, attached as Exhibit D.) Her recantation is buttressed by the coercive and suggestive nature of her interviews, and the fact that her first "accusations" contain material gleaned from another child that was later recanted. (See Exhibit B, p. 2*.) A close look at the records of her first interrogations by Sharon Krause makes starkly clear how determined were the authorities in their efforts to obtain confirmation from Jennifer of their scenario.¹²

The other witness against Ms. Malcom was her son Kirk. Kirk was arrested and charged with sexual activity with younger children. He was initially charged with five counts of rape, and ultimately pled guilty to indecent exposure. After either denying or saying nothing about any involvement with his mother for months, Kirk finally joined the youngest children in accusing her, on the day he was to be sentenced.

Kirk told the court that when he had sex with his mother, he "went up and down."

Question: "Okay. And why would you go up and down?" Answer: "Just -- I don't know really -- just that's the way you have sex."

Question: "How do you know that?"

Answer: "Because when I was in the seventh grade they taught us about it." (9/14/87 RT 187.)

Kirk acknowledged that he had denied that his mother was involved with any sexual activity for months. He was removed from her custody when the charges first arose in late January, and lived with his father thereafter. On April 20, after being told that his sister had accused Ms. Malcom, and on the day he was to be sentenced after pleading guilty to fondling young children, he again denied repeatedly that she had abused anyone when interviewed by Sharon Krause. However, during an interlude with his father, he was told that if he accused her, it would help her. (9/15/87 RT 5-6.) He returned to the Krause interview, and this time he agreed that Ms. Malcom had also participated. (9/15/87 RT 6.)

Dr. Bruck closely analyzes the official pressures on Kirk and his shifting statements as to what supposedly occurred, and concludes by saying that there is no doubt he is an unreliable witness. (See Exhibit B, p.49.)

Medical Evidence

The prosecution relied on medical evidence of an examination of Jennifer done by Dr. Brigitte Mengelberg; but Dr. Mengelberg's testimony that Jennifer had lax sphincter tone that was probably the result of chronic rectal penetration was arrant nonsense. Dr. Mengelberg had placed Jennifer under a general anesthetic to do her examination, for reasons that remain unclear, and never attempted to follow up to see if the results were duplicated when Jennifer was not totally sedated. The evidence upon which she relied for her conclusions about Jennifer was nothing but the predicable and expected effect of general anaesthesia.

Dr. Steve Gabaeff, a board-certified diplomat in emergency medicine and an experienced physician who has examined thousands of children and who was consultant to the San Diego County District Attorney and architect of protocols for the proper physical examination of children suspected to have been abused, has reviewed all the medical reports prepared in this case, as well as the color photographs placed into evidence, and Dr. Mengelberg's trial testimony. He concludes that there is nothing whatsoever in this evidence showing any evidence of sex abuse, and explains why. (See declaration of Dr. Steve Gabaeff, attached hereto as Exhibit E.)

In brief, Dr. Gabaeff shows that Dr. Mengelberg's methods of examination guarantee that her conclusions mean absolutely nothing. Furthermore, the photographs clearly demonstrate that even under general anaesthetic Jennifer's anal opening is normal, and that Dr. Mengelberg's testimony that Jennifer's hymen was "completely dilated and gone" is flatly refuted by the photograph showing the presence in Jennifer of a normal hymen of normal size.

Dr. Gabaeff demonstrates that Dr. Mengelberg's testimony in this case was inexcusably biased, and her opinions entirely unsupported, and largely refuted, by the available evidence.

Dr. Mengelberg proffered the only medical evidence presented to the jury. However, in light of statements attributed to the four sons of Lorie "Logan" and Gail "Morgan" that they had had screwdrivers repeatedly inserted into their rectums, they were medically examined in early February of 1987. No evidence was found on any of these boys indicating that they had been sexually abused. (See Declaration of Dr. Gabaeff, Exhibit *.)

None of this exculpatory medical evidence was placed before the jury by counsel for Ms. Malcom. Not only did counsel not present evidence to the jury which showed that it was highly unlikely that the screwdriver-penetration of "Brian" and "Chuck"'s rectum really happened, but counsel made no challenge at all to the inadequate qualifications and meaningless but highly damaging testimony of Dr. Mengelberg.¹³

Trauma Evidence

Despite his earlier harsh assessments, the prosecution called Lorie "Logan", Gail "Morgan", M'ylissa "Richards", and * "Mason" to testify regarding behavior by their children. After their testimony Dr. Kevin McGovern testified that there is a constellation of symptoms related to times when children are sexually abused which "quantifiable research" has identified. (RT 12.) After a lengthy hypothetical question premised on the parents' testimony of their children's behavior, Dr. McGovern testified that these behaviors were caused by some form of trauma, and that "you normally see these types of symptoms in children where there's been some type of abuse. Symptoms we've talked about here, i.e., hostility, clinging, insecurity, bedwetting, soiling pants, hanging on to parent's leg, desire not to go a certain location, normally are related to abuse." (RT 39.)

Trial counsel never asked Dr. McGovern to identify his research. Had he done so, Dr. McGovern would have been unable to name any such research, because it did not then, and does not now, exist. (See Note, "The Unreliability of Expert Testimony on the Typical Characteristics of Sex Abuse Victims," Georgetown Law Review, Vol. 74, p. 429 (1985); Conte, J., "Evaluating Children's Reports of Sexual Abuse: Results from a Survey of Professionals," American Journal of Orthopsychiatry, Vl. 61, p. 428, 433 (1991).) There is not now, nor was there in 1987, a set of symptoms that were accepted to be the product of sex abuse.¹⁴

Dr. McGovern's expertise on the nature of trauma was sharply questioned by the court in the case of Pard v. United States (Ore., 1984) 589 F. Supp. 518 (attached hereto as Exhibit *.). In that case defendant Michael Pard sued the Veteran's Administration for not adequately diagnosing the combat-related Post-Traumatic Stress Disorder (PTSD) he said he suffered from. The evidence was a videotaped interview made by Kevin McGovern. The court gave examples of Dr. McGovern's questioning technique, "which is so faulty and leading in character as to cast grave doubt about his conclusions." (Id., at 523.)

Not only was Dr. McGovern's conclusion that Pard suffered from PTSD countered by other psychiatrists, but the events in Vietnam which were underlying factual bases for the "trauma," had not taken place. (Id., at 523-524.) Pard's memory of these non-events allegedly returned during an interview with McGovern, when the idea of a trauma and a nightmare was suggested by McGovern himself. The court rejected Dr. McGovern's testimony and concluded that Pard's testimony was not true; that he did not have the experiences or the stressors referred to by McGovern; and Pard never suffered from PTSD. (Id., at 524-525.)

Thus, Dr. McGovern had manufactured a non-existent trauma. The court dismissed Pard's lawsuit. This case was published in 1984, well before Ms Malcom's trial. Counsel should have used it to impeach Dr. McGovern as a man who finds trauma everywhere, even in ordinary child behavior; and if he can't find it, he is not above producing it himself. Instead, counsel did not even ask Dr. McGovern to describe the "research" on which his views ere founded.

Defense

Ms. Malcom's defense was essentially one of common sense. She elicited testimony from her ex-husband and from members of the Binford family who had lived with her, and from Kate Sullivan, the young woman she had hired to assist her day care center, that they had never seen any behavior that would suggest she was a pedophile, or any traces of bizarre conduct.

She also appeared on her own behalf, and strongly denied that any of the charged events had taken place. She placed before the jury evidence that her life was an open one, and that the events described, such as sexual orgies out of doors involving herself and eight children, were highly implausible.

What she did not do, however, was counter in any way the state's "experts." Sharon Krause was presented as an expert in investigation. Briggitte Mengelberg was presented as a medical expert. Kevin McGovern was presented as an expert on victims and trauma. Not only did counsel not counter these very vulnerable witnesses with experts of his own, but he did not do even the most rudimentary cross-examination.

He asked no questions of Krause or Nelson about their investigative techniques either in general or as applied in any interview. He did not notice material contradictions in Krause's trial testimony, let alone the police reports. He did not notice Dr. Mengelberg's lack of qualifications or the manifest bias and mistaken beliefs about the earlier examinations contained in her report. There is no record of his having consulted his own doctor, or having asked the court for funds to retain one to at least examine Dr. Mengelberg's report and photographs. Finally, he failed to make Dr. McGovern specify just what was the research on which he relied.

Without experts to counter these witnesses, and without even questions that might arouse skepticism, the case was not a credibility battle between Lynn and her children. It was Lynn against the professions as well. For a jury that was not aware of how bizarre this investigation had started or how bizarre it became, the choice of who to believe was easy.

Sentencing

After Ms. Malcom was convicted, she was referred to Dr. Steven Jensen for a psychological evaluation. Dr. Jensen made a thorough examination. He interviewed Ms. Malcom and administered a battery of nine tests to her. Dr. Jensen stated that there was a notable lack of data derived from conventional assessment techniques to support a diagnosis of sexual deviancy. He expected more symptoms of delusional thinking, somatization, and antisocial attitudes, but "neither objective nor projective personality tests revealed anything in this regard." A mental status examination likewise revealed nothing significant. "Were evidence of her misconduct merely compelling, this woman might appear to be innocent. Her act is that good. Unfortunately for her, the evidence is so overwhelming that amy temptation to be swayed is short-lived." (p.8.)

The "overwhelming" evidence, however, consisted of the medical reports described above, as well as police reports and therapist Karen Gladyschild's reports containing material that the prosecutor himself had characterized as false! (See, e.g., Jensen's summary of the "facts" of this case, which include allegations that Ms. Malcom urinated and defecated on the children, and they on her, and she gave them intramuscular injections which caused numbness, p. 2.) For a reason never explained in court, the prosecutor had supplied the therapist with allegations that he had represented in open court to be untrue. It was solely on the basis of this false material that the psychologist labeled Ms. Malcom as a pedophile. (This psychological report is attached to the memorandum as Exhibit 7.)

Thus, none of the psychologist's tests revealed anything pathological. So, too, have prison psychologists not found anything in Ms. Malcom's character that would support the amount of deviancy required to perform these heinous crimes. Ms. Malcom has been an excellent inmate, and gained many adherents within the correctional system and outside the community during her time in prison.

CONCLUSION

Justice Brandeis's eloquent observation over a half century ago is particularly appropriate in this case:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men [and women] of zeal, well-meaning but without understanding.

Olmstead v. United States (1928) 277 U.S. 438, 479 (Brandeis, J., dissenting)

For the reasons set forth in this Memorandum, Ms. Malcom prays that this Board recommend to the Governor that he grant clemency to Ms. Malcom.

Dated: ______________, 1997

Respectfully Submitted

_______________________ Michael R. Snedeker

_______________________

Lisa R. Short

Attorneys for Petitioner

Marilynn Malcom

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