Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Please watch this video about Lynn's case. This Could Happen To You Lynn Malcom "No one will be deprived of life, liberty or the pursuit of happiness without due process of law. Due Process of law : The right to controvert every material fact pertinent to your defense. It all started on a quiet, normal day in January 1987. I had opened a daycare for only 2 1/2 months before the month of April when I was arrested for raping, molesting and violently abusing several children including my own. I was plunged into a nightmare of injustice that I never believed could have happened in America : the land of the free and the home of the brave. My case was created, not discovered, and I was tried and sentenced to 18 years in prison. I spent 7 1/2 months in the county jail, a year in solitary confinement because of threats on my life and the remaining 10 years on open campus being subject to monitoring, regiment and dismantling of your soul for over 10 years. My daughter Jennifer found me in 1996 and recanted her testimony and was interviewed by a legislator and the letter he wrote and video he did, interviewing her, should have released me immediately but that did not happen. We have not been able to get a review in any court and I have the best attorney on the planet. He has taken this case on faith and should be paid the somewhere close to $80,000 I owe him. Mike Snedeker is the president of the National Center for Reason and Justice and I am so grateful for him. I was released on July 7, 1999. It was like being hurled into the twilight zone. You can read the details of this case by e-mailing me at lynn_malcom2000@yahoo.com . I will forward the Federal Petition to you free of charge. The details are too complicated to put in this short narrative but I have a "Nutshell" version I will share for those who want more information and do not want to read the whole petition. Please know that our system has the ability to abuse its power and get away with it. If we don't fight we will not win. As someone once said "The only thing that needs to happen for evil to continue is for good people to do nothing". I am willing to speak, share and be available anywhere I am needed. Innocent people deserve to be vindicated and Americans have paid a high price for the privilege of fairness. This could happen to you! God Bless You! With a grateful but sorrowful heart, Marilynn (Lynn) Malcom lynn_malcom2000@yahoo.com In a Nutshell By: Lynn Malcom This is a story about pain, hope and triumph in Christ, in a nightmare of injustice that you would have to experience to believe. And This could happen to you! It began on an ordinary day in January 1987. I went to pick up my son Kirk who was 12 and attended a local Christian school. His father, who had divorced me in 1982, was there which was unusual because it was not his day to have the children. I was cordial but curious and he said the Sheriff's office had called and Kirk needed to go down there for questioning and they wouldn't tell him anything more. I told him weWould follow him and I would talk to Kirk to find out what it was all about. Kirk was most often truthful because I never created an atmosphere of fear. If he had done something wrong he could tell me, and the consequences were real but caring and we had a very close relationship. He trusted me and I adored him. After questioning him I was convinced it was a mystery. He didn't remember doing anything wrong so we decided we would see when we got there. When we arrived his father and I were ushered into a room without Kirk and told that it had been reported that Kirk had molested a 5 year-old neighborhood boy. I was stunned. Kirk had good manners and would not do that but I assured the detective Kirk would tell the truth. They wanted to interview Kirk alone and Jim (Kirk's father) was not happy about that but I felt like it was not a big deal so I asked how long it would take and they said about 15-20 minutes. That was a lie and a big mistake on our parts. Kirk came out of the sheriff's office 2 hours later in convulsions and I was furious and frantic as Kirk was screaming out " I did not do those things Mom. They cursed at me, pounded on the table and used foul language and I did not do those things." I asked to see the supervisor and was told I could call tomorrow. A female sheriff came out to talk to us and decided Kirk needed to stay with his father until this was over as they were suspicious of his behavior toward his sister and if we didn't agree they would take both the children and put them in protective custody. We had no choice but to agree. The nightmare began and within 3 months they had interviewed about 7 children, coerced them to lie and tell the most bizarre stories and also implicate me, my friend Donna and another couple who were like parents to my children. Kirk went to juvenile jail and I went to jail because I would not plea bargain OR admit to any of these disgusting behaviors. Lynne and Jen, Christmas I spent 12 years in prison. In 1996 my daughter, Jennifer reunited with me and told the truth about how they forced her to lie and she was taken to the State Capitol and interviewed by a State Representative who agreed I was innocent and Jennifer was a victim. I was released in July 1999 and have been fighting in the courts ever since. Jennifer and I have done several news reports. Attorneys have spent almost $100,000 in legal briefs and work and are doing this for free because they know I am innocent. I am outraged but I have a strong faith in an awesome God who parted the Red Sea and He isno respector of persons ...He is faithful and I am patient. In the meantime I pray and trust and do my best to help as many people as I can to know the love and power of Christ and I believe in miracles. It has been hard, it has been torture to be separated from my family and freedom but prison can also be a missionary ground and I had and still have a strong foundation in Christ so I am not moved even in my darkest times. There is more. This is just the nutshell version but someday I will finish my book and you can read the whole story. In the meantime pray and ask questions if you have to but be gentle. Wounds like these lies take years to heal and rehearsing them can be very painful. God bless you Lynn Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Please watch this video about Lynn's case. This Could Happen To You Lynn Malcom "No one will be deprived of life, liberty or the pursuit of happiness without due process of law. Due Process of law : The right to controvert every material fact pertinent to your defense. It all started on a quiet, normal day in January 1987. I had opened a daycare for only 2 1/2 months before the month of April when I was arrested for raping, molesting and violently abusing several children including my own. I was plunged into a nightmare of injustice that I never believed could have happened in America : the land of the free and the home of the brave. My case was created, not discovered, and I was tried and sentenced to 18 years in prison. I spent 7 1/2 months in the county jail, a year in solitary confinement because of threats on my life and the remaining 10 years on open campus being subject to monitoring, regiment and dismantling of your soul for over 10 years. My daughter Jennifer found me in 1996 and recanted her testimony and was interviewed by a legislator and the letter he wrote and video he did, interviewing her, should have released me immediately but that did not happen. We have not been able to get a review in any court and I have the best attorney on the planet. He has taken this case on faith and should be paid the somewhere close to $80,000 I owe him. Mike Snedeker is the president of the National Center for Reason and Justice and I am so grateful for him. I was released on July 7, 1999. It was like being hurled into the twilight zone. You can read the details of this case by e-mailing me at lynn_malcom2000@yahoo.com . I will forward the Federal Petition to you free of charge. The details are too complicated to put in this short narrative but I have a "Nutshell" version I will share for those who want more information and do not want to read the whole petition. Please know that our system has the ability to abuse its power and get away with it. If we don't fight we will not win. As someone once said "The only thing that needs to happen for evil to continue is for good people to do nothing". I am willing to speak, share and be available anywhere I am needed. Innocent people deserve to be vindicated and Americans have paid a high price for the privilege of fairness. This could happen to you! God Bless You! With a grateful but sorrowful heart, Marilynn (Lynn) Malcom lynn_malcom2000@yahoo.com In a Nutshell By: Lynn Malcom This is a story about pain, hope and triumph in Christ, in a nightmare of injustice that you would have to experience to believe. And This could happen to you! It began on an ordinary day in January 1987. I went to pick up my son Kirk who was 12 and attended a local Christian school. His father, who had divorced me in 1982, was there which was unusual because it was not his day to have the children. I was cordial but curious and he said the Sheriff's office had called and Kirk needed to go down there for questioning and they wouldn't tell him anything more. I told him weWould follow him and I would talk to Kirk to find out what it was all about. Kirk was most often truthful because I never created an atmosphere of fear. If he had done something wrong he could tell me, and the consequences were real but caring and we had a very close relationship. He trusted me and I adored him. After questioning him I was convinced it was a mystery. He didn't remember doing anything wrong so we decided we would see when we got there. When we arrived his father and I were ushered into a room without Kirk and told that it had been reported that Kirk had molested a 5 year-old neighborhood boy. I was stunned. Kirk had good manners and would not do that but I assured the detective Kirk would tell the truth. They wanted to interview Kirk alone and Jim (Kirk's father) was not happy about that but I felt like it was not a big deal so I asked how long it would take and they said about 15-20 minutes. That was a lie and a big mistake on our parts. Kirk came out of the sheriff's office 2 hours later in convulsions and I was furious and frantic as Kirk was screaming out " I did not do those things Mom. They cursed at me, pounded on the table and used foul language and I did not do those things." I asked to see the supervisor and was told I could call tomorrow. A female sheriff came out to talk to us and decided Kirk needed to stay with his father until this was over as they were suspicious of his behavior toward his sister and if we didn't agree they would take both the children and put them in protective custody. We had no choice but to agree. The nightmare began and within 3 months they had interviewed about 7 children, coerced them to lie and tell the most bizarre stories and also implicate me, my friend Donna and another couple who were like parents to my children. Kirk went to juvenile jail and I went to jail because I would not plea bargain OR admit to any of these disgusting behaviors. Lynne and Jen, Christmas I spent 12 years in prison. In 1996 my daughter, Jennifer reunited with me and told the truth about how they forced her to lie and she was taken to the State Capitol and interviewed by a State Representative who agreed I was innocent and Jennifer was a victim. I was released in July 1999 and have been fighting in the courts ever since. Jennifer and I have done several news reports. Attorneys have spent almost $100,000 in legal briefs and work and are doing this for free because they know I am innocent. I am outraged but I have a strong faith in an awesome God who parted the Red Sea and He isno respector of persons ...He is faithful and I am patient. In the meantime I pray and trust and do my best to help as many people as I can to know the love and power of Christ and I believe in miracles. It has been hard, it has been torture to be separated from my family and freedom but prison can also be a missionary ground and I had and still have a strong foundation in Christ so I am not moved even in my darkest times. There is more. This is just the nutshell version but someday I will finish my book and you can read the whole story. In the meantime pray and ask questions if you have to but be gentle. Wounds like these lies take years to heal and rehearsing them can be very painful. God bless you Lynn Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Search This Site   The following search will return one entry per page, and with the context of the first occurrence of the search item. Use your browser's find feature to see find the individual entries on the page. Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help You Can Help You can make a donation to Lynn Malcom's defense by sending your contribution to: The National Center for Reason and Justice POB 191101 Roxbury MA 02119 With your donation, please include a note recommending a distribution to the Lynn Malcom Defense Fund and indicating whether this will be a tax-deductible donation. As well as acting as a fiscal sponsor for such funds, the NCRJ educates the public about prisoners and defendants like Lynn Malcom, who are falsely accused of crimes against children. The NCRJ's Board of Directors distributes money in its Prisoner Legal Defense Fund by balancing the desires of the donors with the needs of their grantees. If you are making a tax-deductible donation, the NCRJ's Board of Directors will take your wishes into serious consideration, but they cannot promise you to deposit all of it in Lynn Malcom's fund. If they did, the IRS would disallow your tax deduction for that donation. For more information on the tax laws governing such contributions, we recommend you consult your own accountant or attorney. You may also make your contributionby credit card . A Message Fom Lynn NCRJ needs funding to continue to help all innocents, including me.  If you have the resources please consider a donation and/or a monthly pledge to this organization. They are wonderful and the best we have in the arena of false allegations. Legal fees are costly.  As for me -- pray!  I am petitioning the Governor of Washington (Christine Gregoire) for a pardon based on innocence.  I need to win for the good of all innocents.  Then I will be free to travel, speak, and send my DVD to anyone who cares about Justice in America.  My costs are minimal.  I need $ for postage, gas $, $ for my cell phone minutes and I need favor in Olympia.  That would be a miracle! This issue is one they want to avoid if possible but that will not happen because I am not going away.  I am determined to make this issue a concern and for laws to change to help the people who are right now being accused because of overzealous prosecutors and corrupt police and court systems.  No one should ever be deprived of life, liberty or the pursuit of happiness without due process of law  (the right to controvert every material fact pertinent to their defense). That is our Constitutional Right and guarantee!  Our forefathers fought diligently to protect our rights and fair trials are not a suggestion, they are to be guaranteed!  The manipulation of any rule of evidence or exclusion of exculpatory evidence should be criminal.  Families are the heart of America and we have the experts who know how to interview children and defend the innocents and they need to be included in these cases.  Please become knowledgeable about this issue, it is wrong and a complete nightmare to have your reputation, family and life devastated for no reason.  I pray too and hope you will join the team who cares about children, families and innocence.                                         THIS COULD HAPPEN TO YOU !   Thank You from the bottom of my heart ! Sincerely,   Marilynn Malcom  ( Lynn ) # 933430 Released July 7, 1999 You are welcome to call me or contact NCRJ if you have any questions. Blessings to you and your family, Lynn  206-550-1793  Cell # email: lynn_malcom2000@yahoo.com .   The only thing that needs to happen for evil to continue is for good men to do nothing! God Bless America ! Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Letter From Mike Snedeker SNEDEKER, SMITH & SHORT Attorneys at Law PMB 422 4110 S.E. Hawthorne Blvd. Portland, Oregon 97214 Telephone: 503-234-3584 Facsimile: 503-232-3215 September 24. 2006 To Whom It May concern: Re: Marilvnn Malcom Marilynn Malcom has asked me to give a brief summary of her case in the form of a letter; I am happy to do so. There is no question in my mind that she is entirely innocent. Our office has documented this in meticulous detail, in various settings from 1996 though 2001. For a variety of procedural reasons, she has never been able to obtain a court hearing on her claims. No one from the Board of Clemency through every level of both state and federal courts has been willing to address her case on its merits, and either reaffirm that she is guilty — something that is now impossible to do with a straight face — or declare that her trial was fundamentally unfair and set aside her convictions. I'm enclosing the petition for clemency we wrote for Ms. Malcom. It is a good presentation of both the historical context in which she was tried, and how the evidence relied by the State in order to convict her was unreliable and false. Best wishes to you. I will be glad to answer any questions regarding this case, and I hope you are able to assist Ms. Malcom. Her case is one of the greatest injustices I have encountered in more than 30 years of practicing law . Sincerely yours, Michael R Snedeker Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Malcom Clemency Petition MichaelR. Snedeker LisaR. Short Snedeker,Smith & Short 1752S.E. Hawthorne Blvd. Portland,Oregon 97214 Tel: (503) 234-3584 Attorneysfor Petitioner MarilynnMalcom BEFORE THECLEMENCY AND PARDONS BOARD FOR THE STATE OFWASHINGTON In the matter of ) ) MARILYNNMALCOM, ) ) Petitioner ) ___________________________________) PETITION FORCLEMENCY AND MEMORANDUM AND EXHIBITS INSUPPORT THEREOF INTRODUCTION When the subjectof child sexual abuse surfaced in the early 1980's, it had manycleansing effects. Those who had been molested were allowed, andthen encouraged, to describe what had happened to them. Stories weretold by persons across the socioeconomic spectrum illuminating a partof our collective reality that had been suppressed by an unspokenconsensus. A swingingpendulum, however, does not stop in the middle. The possibility ofchild sex abuse soon became the inevitability of child sex abuse. Aslives had been wrecked by society's refusal to acknowledge sexualabuse of children by adults, lives in the mid-1980's were ruined byfalse charges of large-scale sexual abuse of a grotesque nature thatcreated a moral panic chillingly reminiscent of the hysteria thatgripped Salem, Massachusetts in 1692. 1 Abuse wasinferred from what previously had been viewed as innocentcircumstances; non-deviant or marginally deviant behavior becamefertile ground for the growing of charges. Sharon Krause, theprincipal investigating officer in the present case, told a Salt LakeCity audience in 1986 -- four months before she began developing thecharges against Ms. Malcom -- that children often only hint at sexualabuse and that parents must look for signs. Signs, Krause warned,include a child's "acting out anger with peers, short attentionspan 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 anational movement of those who would see child sexual abuse in themost innocuous of circumstances. Thus, behaviors long recognized bypsychologists and by parents as well within the continuum of normaldevelopment became pathologized, and labelled as evidence of sexabuse (see, e.g., Ilg, F., et. al., Child Behavior , New York,Harper & Row, 1981); parents mobilized to find abuse incommonplace behavior or behavior that is now understood as havingnothing to do with child sex abuse. The drivingforces behind this movement were law enforcement investigators,prosecutors and child welfare professionals -- individuals such asthose responsible for the construction of the charges against Ms.Malcom. They undoubtedly meant well, believed they were acting inthe best interest of the children, and did not perceive themselves asdeliberately or inadvertently manipulating the children involved intomaking false statements. This does not make the product of theirefforts any more true, or Ms. Malcom's fate any less tragic. The case againstMarilynn Malcom was created, not discovered. She is a rivetingexample of an innocent woman caught in the gyrations of a nationalhysteria, a social backlash by zealous officials seeking to make upfor decades of ignorance about and indifference to child sexualabuse. This Board is empowered to make recommendations to theGovernor for clemency in extraordinary cases where the interests ofjustice require it. (RCW Section 9.94A.260.) Ms. Malcom willpresent for its consideration a summary of the extraordinarycircumstances that warrant favorable action by the members of theBoard and by the Governor himself. BACKGROUND Marilynn Malcomwas born in 1946. In 1969, she married Jim Malcom. They had twochildren: Kirk, born in April of 1974, and Jennifer, born in Decemberof 1977. In 1982, after 13 years of marriage, she and her husbanddivorced. The children lived with Ms. Malcom, and spent two nights aweek and every other weekend with their father. Between 1982 and1986 there were numerous disputes between the two parents that beganto dampen down after Jim Malcom remarried in 1985. (9/15/87 RT44-45; 9/17/87 RT 15-17, 41, 73, 78, attached as part of Exhibit *.) 2 Ms. Malcom'shome in late 1986 was located on the outskirts of Vancouver. Herneighbors included the "Morgan" family, from whom she rented her house,and the "Logan" family. The neighbors' children -- "Chuck Morgan", 6 yearsold; "James Morgan", 4 years old; "Neil Morgan", 3 years old; and"Brian Logan", 4 years old -- played with Ms. Malcom's children andwere often around the house. (9/10/87 RT 57-60, 97-100; see MotionIn Limine, attached hereto as Exhibit C.) From 1985 to the spring of1986, Donna Binford and her children, Ryan and Rebecca, lived withMs. Malcom and Kirk and Jennifer. (9/16/87 RT 56 et. seq.) 3 In late 1986,Ms. Malcom started the Rainbow Christian Daycare Center andadvertised for business in the local paper. The Center, located inher home, opened in November of 1986. Ms. Malcom sought a license,and attended a requisite class. At the same time, she worked on callas 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 caredfor her own children as well who were then 12 years old (Kirk) and 9years 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'soffice reports indicate that the first allegations of sexual abuse inthis case originated with Ms. Malcom's neighbor, Lori "Logan", themother 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 herfour-year-old son "Brian", watched a videotape on sexual molestationby 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 andJennifer Malcom and the "Morgan" boys. (See Clark County Sheriff'sOffice [hereafter, "CCSO"] Utility Report, 1/30/87, 10:30a.m., by Det. Steve Nelson, attached hereto as part of Exhibit D.) 5 Ms. "Logan"immediately told Ms. "Morgan" the details of "Brian"'s supposedallegations. Ms. "Morgan" in turn questioned her oldest son, "Chuck", whodenied that anything of this nature had happened to him. However,according to Ms. "Morgan", "Chuck" said that the acts "Brian" supposedlydescribed to his mother did happen to his brothers, to "Brian", to"Michael Richards" and to "Mark Mason". Ms. "Morgan" also questioned herother two children, "James" and "Neil". According to her, bothtold her about acts of a sexual nature involving Kirk. (See ExhibitD, 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'sOffice 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" saidthat Kirk inserted a screwdriver into his rectum; "peed"into his rectum; "peed" into a squirt gun; that Kirk andJennifer took turns licking the penises and anuses of himself and thethree sons of next-door neighbor Gail "Morgan"; and that Kirkthreatened to squirt him with "pee" if he ever told hisparents. 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 ExhibitD, CCSO Utility Report, 1/30/87, 10:30 a.m., by Det. Nelson.) Also on January30, Nelson interviewed "Chuck Morgan" about the allegations relayed byMs. "Morgan". Ms. Malcom has never been provided with any report ofany interview or discussion between Nelson and Ms. "Morgan". Accordingto Nelson, "Chuck" told him everything he had told his mother. (SeeExhibit D, CCSO Utility Report, 1/30/87, [no time noted], by Det.Nelson.) Shortly afterthese initial interviews, Sharon Krause joined Nelson in interviewingalleged child victims and at least one therapist was used tointerview and "counsel" "Mark Mason", Lori "Logan" and"Brian Logan". Numerous interviews were conducted in February. (SeeExhibit *, passim .) However, despite the apparent momentum onthe case reflected in the February reports, no reports have ever beenprovided to Ms. Malcom reflecting any official activity on the caseduring the month of March, 1987. The next report that appears isdated 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 herson "Brian" spontaneously told her while watching television that"Lynn was there when Kirk [sexually abused] us." (SeeExhibit *, CCSO Utility Report, 4/6/87, by Det. Nelson.) Despitethis explosive accusation, no reports apparently exist of anyofficial activity or investigation of this case for the next sevendays. 7 After this inexplicable hiatus, the next mention of thisinvestigation occurs on Monday, April 13, 1987. Nelson there reportsthat the "Morgan", "Logan" and "Mason" fami"Logan" met at Lori "Logan"' home thenight before where the children purportedly aimed new accusations ofviolence and sexual abuse at Lynn Malcom. The accusations involvedbizarre and incredible tales of large-scale child sexual abusesupposedly perpetrated by Ms. Malcom. These allegations were relatedby 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 motherof similar acts after lengthy interviews by Sharon Krause. (SeeExhibit *, CCSO Utility Report, 4/16/87, 4/20/87, by Det. Krause.) Kirk Malcom wasarrested on *** on six counts of rape. On April 20, he pleadedguilty to *** indecent liberties. After Jennifer's accusation thatsame day, Krause interviewed Kirk in order to obtain accusations fromhim against his mother. As he had several times before, Kirk deniedthat Ms. Malcom was involved in any way in child sexual abuse. (SeeExhibit *, CCSO Utility Report, 4/20/87, by Det. Krause.) On April22, 1987, Krause again interviewed Kirk seeking accusations from himagainst his mother, and Kirk again denied his mother's involvement;however, later during that same interview, Krause finally obtainedaccusations from Kirk against Ms. Malcom. (See Exhibit *, CCSOUtility Report, 4/22/87, by Det. Krause; see also 9/15/87 RT 5-6;Declaration of Dr. Maggie Bruck, attached hereto as Exhibit *, atpages 48-51***.) Thus, Ms. Malcom-- who despite over two months of investigation had never beenmentioned by any child as a perpetrator of anything and who had neverbeen arrested for anything in her life -- became in the span of twoweeks, the center of unspeakable accusations of child sexual abuseand incest. 8 In May of 1987,investigators began producing accusations from the children that eventhe prosecutor not only eventually eschewed but also foughtvigorously and successfully to suppress from the jury. Chargessimultaneously surfaced from several children that Ms. Malcom andKirk had committed multiple murders; had engaged in Satanicritualistic abuse of the children; had blown up people with bombs;had moved dead people to junkyards; had a computer stored in ajunkyard under the hood of a car that could produce pictures ofmurdered children; and much, much more. (See Exhibit *, CCSO UtilityReports of 5/14/87, by Det. Nelson.) As we detail below, theseallegations never reached the jury even though they came from thesame source and resulted from the same process as the charges ofwhich Ms. Malcom convicted. B. Analysisof Investigation Krauseand Nelson's interviews of the child witnesses and alleged childvictims were characterized by an absence of verbatim recordings, thedestruction of contemporary interview notes, and rampant interviewerbias. Dr. MaggieBruck, one of North America's leading cognitive psychologists and anexpert on children's suggestibility, has carefully examined dozens ofreports prepared by Nelson and Krause in this case. In a declarationrelying on these reports, Dr. Bruck assesses the reliability of thisinvestigation. (See Declaration of Dr. Maggie Bruck, attached heretoas Exhibit *.) Dr. Bruck concludes that it is impossible to tellwhen or if any of the children were actually abused or whether theaccusations instead resulted from suggestive and coerciveinterrogation techniques; this is because theinterviewing/interrogation of the children by their parents and byNelson and Krause was so insistent, suggestive, and coercive as torender any accusations gleaned therefrom unreliable. Dr. Bruckdemonstrates that the questioners used the following suggestivetechniques: 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 thesetechniques can induce false accusations. When used in combination,as in the present case, they lead to false charges of sex abuse invery short order. Children can come to believe their falsestatements, and present them so convincingly that no adult can tellthe difference. (See Exhibit *, p. 50.) As Dr. Bruckobserves, the interview techniques utilized on the alleged victims inthis case went beyond suggestive and were sometimes very coercive. The length of questioning sessions was grossly out of proportion tothe age of the children; they lasted up to several hours. Interviewsof such length not only are painful to children, but they have beenshown to produce more incorrect statements from them. Here, sessionsof more than one hour were commonplace. Severalinterviews of the children were done without any report at all beingmade. The written reports prepared by Sharon Krause, despite theliberal use of quotation marks and assurances that everything ofimportance was included, are demonstrably inaccurate and incomplete. (See Exhibit B, passim .) In addition, the interviews byKrause show the use of proper techniques only when she is seekinga recantation of statements so bizarre that they would havejeopardized 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 possibilitythat suggestive or coercive questioning can produce unreliabletestimony has long been recognized by the United States SupremeCourt, 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 improperinterviewing by adults can prompt unreliable and false charges ofchild sex abuse. In Idaho v. Wright (1990) 497 U.S. 805, thecourt agreed with the Idaho Supreme Court that the improper admissionof hearsay testimony by an interviewer regarding accusations ofsexual abuse required reversal, because the evidence was notreliable. The court further warned that "if there is evidenceof 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-calledSatanic Church case in Bakersfield, California, where up to 60children and 77 adults were thought to be involved in adevil-worshipping sex ring. The case collapsed when the children, asif to demand incredulity, accused a deputy sheriff, a social worker,and a prosecutor who had been involved in prosecuting cases like theone brought against Ms. Malcom, of themselves being part of ababy-killing Satanic Church. He concluded: "Ifany aspect of an investigation into child sexual abuse could becalled critical, it would be the victims' interviews. The manner andfrequency of these interviews can determine the course of aninvestigation because in many of these cases the children'sstatements constitute almost all the evidence." (AttorneyGeneral's Report, fn. 6, p. 70.) As Dr. Bruck hasshown, research by cognitive psychologists now leaves no doubt thatby using certain directive interview techniques, children can be ledinto making false accusations. Much of thedefinitive research has been done in this decade. However, there haslong been a concern among researchers and writers about the interviewprocess and the possibility of distorting a child's memory bymanipulative interview techniques. Two researchers, who acknowledgethat many of their recommendations are slanted in favor ofprosecution of sex abuse cases, emphasized in 1985 that aninterviewer should be highly trained and unbiased, because the leastaccurate reports from children are obtained by interviewers whoharbor preconceived notions about what happened. (Goodman, G., andHelgeson, V., "Child Sexual Assault: Children's Memory and theLaw," 40 U. of Miami Law Rev. 181, 195, 207-208 (1985),citing H.R. Dent, The Effects of Interviewing Strategies on theResults of Interviews with Child Witnesses , in Reconstructingthe Past 279 (A. Trankell, ed., 1982.).) A leadingtext for practicing lawyers concludes a summary of applicableresearch by saying, "While young children rarely fabricateincidents on their own, they may succumb to suggestive coaching andquestioning by adults with preconceived notions of what happened." (Myers, J., Child Witness Law and Practice (1987) section10.36, p. 503). Published Research Indicates that a Significant Percentage of Charges of Child Sex Abuse Are False . According to theNational Child Abuse and Neglect Data System (NCANDS), a branch ofthe U.S. Department of Health and Human Services, an estimated 41percent of reports of child abuse in 1991, the most recent year forwhich data is available, were either substantiated or "indicated"(not substantiated with credible evidence but also not shown to beunfounded.) The other 59 percent were unfounded. This percentagewas approximately the same as that reported in 1990. (See NCANDSWorking Paper2, 1991 Data component, p. 27. [Washington D.C., 1993].) Ms. Malcom isaware of one study that sought to determine the truth or falsity ofcharges of child sexual abuse in the contest of a custody dispute. 9 Of the cases where charges of child sexual abuse were made and adetermination of validity was made, 50% were valid, 33% were notvalid, 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 . Numerousprosecutions from around the United States have been discredited byrevelations of the questioning techniques used by overzealousinvestigators. 10 The Modern Consensus -- False Charges Are a Reality Many researchersin the early '80's believed that the likelihood of children evermaking false charges of sex abuse was so negligible as to not beworth worrying about. Now, however, there is little doubt among anyserious researcher or clinician that the danger of false charges isreal. "Improperinvestigative techniques are leading to premature and incorrectassessments of the child's experiences and to overdiagnosis of childsexual abuse." (Quinn, et al., "Resolved: Child Sex Abuseis Overdiagnosed," 28 J.Am.Acad.Child & AdolescentPsychiatry 789 [1989].) Every researcher who hasattempted to assess the incidence-rate of false allegations hasdiscovered that false allegations exist. (Younts, D., "Evaluatingand Admitting Expert Opinion Testimony in Child Sexual AbuseProsecutions." 41 Drake L. J. 691 (1991) at 732-733.) Seattle's LucyBerliner, one of the most influential social workers in the field,avers that "No competent professional disputes the fact thatsome small percentage of sex abuse reports are fiction." (Quinn,et al., supra , at 793.) This statementdiffers from Ms. Berliner's view in 1981, when she asserted that"There is no evidence to support the idea that childrenfalsely report sexual abuse." (Conte and Berliner, "SexualAbuse of Children: Implications for Practice," 62 SocialCasework: J. Contemp. Soc. Work 601 [1981], emphasis added.) There is now ageneral recognition among virtually all experts that false charges ofchild sex abuse are very real. All the typicalcharacteristics of a case that results in false allegations thatresult 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 Informthe Jury Know How this Case Arose Ms. Malcom wascharged with and convicted of crimes against seven children: KirkMalcom, 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 anychild save Kirk and Jennifer. The prosecutor successfully argued forthe 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 ofarguing to keep from the jury what these young children said (as wellas his own earlier harsh appraisals of their parents), the prosecutordescribed how the parents got together, shared information,improperly suggested things to the children, and didn't use reliableinterview techniques. He stated that he had "several veryheated conversations about Mrs. "Logan" hindering this investigation." According to the prosecutor, wild and false charges of murders andrituals were the product of Lori "Logan"' improper questioning of"Brian"; she then passed these allegations on to Gail "Morgan" who inturn grilled her own children. Ms. "Morgan" then allowed Ms. "Logan" toquestion the "Morgan" children, leading them to also make falsecharges. From there, the lie-telling spread to other children.(9/8/87 RT 183.) The prosecutor continued: the charges of "killingof children and so forth, which the police later determined not to betrue;********* came from Lori "Logan" interviewing her son "Brian", whoyou found to be an incompetent witness.....Most of the statementscame from his mother, who supposedly got them from him...."(9/8/87 RT 118-120.) The prosecutortold the court that when this happened, he became very concerned, andconvened a meeting of local law enforcement officials and the parentsof the alleged victims. "We advisedthem that if their children told them things, that's fine; but theyshould listen and not question. And we specifically talked about thedangers of leading questions and the dangers of sharing informationwith one another. The "Logan" and the "Morgan"s live in the sameneighborhood and interact regularly just by proximity. Their kidsplay with each other. "Andwe warned them about the dangers of sharing information theirchildren may have revealed. They did not heed our warnings. As aresult, a lot of this stuff that we've been talking about today waselicited, not just from one child, but then it came from another, andlooked on the surface like there might be some -- it might be real,there might be something to it because it was coming from more thanone source. "Aswe developed, or delved into it deeper, it became clear that it wasshared information, improperly suggested to the kids, improperlyelicited, not using reliable techniques and so forth." (9/8/87RT 183.) What theprosecutor did not divulge to the court, however, is that theinvestigating officers who developed the very charges which he tookto trial used precisely the same techniques he so roundly condemnedas resulting in false allegations. The prosecutor also inexplicablyignored clear evidence that all the charges against Ms. Malcom andher son Kirk originated in the same manner -- with parents Lori "Logan"and Gail "Morgan". (See Exhibit B, pp. *.) Defense counselwas no help. Reports made it clear that it was Ms. "Logan" who startedthis entire investigation -- and it was she who expanded it in Aprilto include Ms. Malcom. But counsel for Ms. Malcom did nothing toenlighten the jury. He occasionally told the court that the childrenseemed to have been manipulated, but he never made a coherent offerof proof. Early on,counsel had an extremely difficult time articulating why it wasimportant to have an expert look at the pattern of disclosures by thechildren to see if they were reliable. Finally the trial courtsaid, "I'm still trying to see if there's a reason to give youan expert and I don't yet see it, I guess. Perhaps we best waituntil you develop your own theory of why you need one." Counselagreed. (8/31/87 RT 28-30.) The court ultimately awarded counselmoney for the hiring of such an expert (RT **), but to no avail. Counsel did not follow through and obtain one, or explain whatdifficulties he may have had that prevented him from doing so. Counselindicated early in the trial that he wanted to call the youngestchildren. For reasons never explained, he decided not to call any ofthe children but "Chuck" and "Mark", and then for the limited purpose ofshowing that they had named adults who were not prosecuted. (9/8/87RT 131-132.) Counsel continually vacillated on whether or not hewanted the youngest children to be found competent or incompetent,and ultimately asked that the trial court find them incompetent, eventhough 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" [9/8/87RT 161]), or the product of extremely leading questions. (See, e.g.,testimony of "James Morgan", 9/8/87 RT 94-98.]) Counsel asked noquestions of Lori "Logan" or Gail "Morgan" about their strenuous leadingof the children, their belief that this was a so-called SatanicRitual Abuse Case, their rewarding their children for "telling'by buying them toys, or their persistent belief that there were deadchildren hidden somewhere by Ms. Malcom and many others. Instead,counsel argued that he should be able to present to the jury theiropinions that the police manipulated their children (they felt thatKrause and others badgered their children into false recantations ofmurder and ritual abuse charges). The trial court properly ruledthat this was an inadmissible opinion, since the parents were notpresent during the interviews. Counsel finallytold the court that he did not want to ask either the parents or thechildren what the children said outside of court. He said that hedid not see how it was relevant that "Chuck" indicated that during aninterview by the government that Lynn killed children and buried themin a junkyard after being questioned over and over about it by Lori"Logan", who had just bought a book on "Satanic abuse" priorto extracting these charges. Counsel never sought to glean fromKrause or Nelson what techniques they used, why they used them. Henever sought to confront either Nelson or Krause with the improperinvestigative techniques revealed throughout their reports. Counsel vividlydemonstrated how oblivious he was to the importance of thecircumstances surrounding the official investigation and initialcircumstances when he stated that he did not want to call anychildren to say that they had not ever mentioned Ms. Malcominitially, because there was "no evidence presented in this casethat they did mention her originally." (9/17/87 RT 181.)Ironically, the trial court clearly understood the relevance, andinformed counsel -- again to no avail -- that it would indeed berelevant and admissible evidence to call witnesses who would testifythat Ms. Malcom was not mentioned either around the time of thesupposed molestations, or later during the first wave of parental andpolice interviews. (9/17/87 RT 180-181.) Still, counsel failed toact. In sum, there islittle doubt that had counsel sought to place before Ms. Malcom'sjury evidence the fact that this case was the product of overbearingparents and overzealous investigators, the trial court would havebeen receptive. No such witnesses were called, however. Counsel didnot even expend the monies allotted by the trial court to consultwith an expert on the issue of directive investigative techniques. Testimony of Kirk and Jennifer Malcom The childwitnesses directly presented by the prosecution were Kirk andJennifer 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 testifiedthat much of the alleged abuse he described took place there; he toldthe jury that Ms. Malcom directed elaborate sexual activity involvingsix or seven children and herself while out of doors, near an areathat was occasionally visited by neighbors. The testimonywas also largely the product of leading questions. Here is a sampleof the questioning of Jennifer: Prosecutor: "Did you eversee your mom doing anything with Kirk's front private part? Besidesputting 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 orhands?" Jennifer:"No." Jennifer'stestimony consists almost entirely one- and two-word answers todetailed questions by the prosecutor, whose voice tells the story. 11 She has recanted entirely her accusations against her mother made attrial, and now tells how she was badgered and duped into making them. (See Declaration of Jennifer Malcom, attached as Exhibit D.) Herrecantation is buttressed by the coercive and suggestive nature ofher 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 firstinterrogations by Sharon Krause makes starkly clear how determinedwere the authorities in their efforts to obtain confirmation fromJennifer of their scenario. 12 The otherwitness against Ms. Malcom was her son Kirk. Kirk was arrested andcharged with sexual activity with younger children. He was initiallycharged with five counts of rape, and ultimately pled guilty toindecent exposure. After either denying or saying nothing about anyinvolvement with his mother for months, Kirk finally joined theyoungest children in accusing her, on the day he was to be sentenced. Kirk told thecourt that when he had sex with his mother, he "went up anddown." 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: "Howdo you know that?" Answer: "Because when I was in the seventh grade they taught us aboutit." (9/14/87 RT 187.) Kirk acknowledgedthat he had denied that his mother was involved with any sexualactivity for months. He was removed from her custody when thecharges first arose in late January, and lived with his fatherthereafter. On April 20, after being told that his sister hadaccused Ms. Malcom, and on the day he was to be sentenced afterpleading guilty to fondling young children, he again deniedrepeatedly that she had abused anyone when interviewed by SharonKrause. However, during an interlude with his father, he was toldthat if he accused her, it would help her. (9/15/87 RT 5-6.) Hereturned to the Krause interview, and this time he agreed that Ms.Malcom had also participated. (9/15/87 RT 6.) Dr. Bruck closelyanalyzes the official pressures on Kirk and his shifting statementsas to what supposedly occurred, and concludes by saying that there isno doubt he is an unreliable witness. (See Exhibit B, p.49.) Medical Evidence The prosecutionrelied on medical evidence of an examination of Jennifer done by Dr.Brigitte Mengelberg; but Dr. Mengelberg's testimony that Jennifer hadlax sphincter tone that was probably the result of chronic rectalpenetration was arrant nonsense. Dr. Mengelberg had placed Jenniferunder a general anesthetic to do her examination, for reasons thatremain unclear, and never attempted to follow up to see if theresults were duplicated when Jennifer was not totally sedated. Theevidence upon which she relied for her conclusions about Jennifer wasnothing but the predicable and expected effect of generalanaesthesia. Dr. SteveGabaeff, a board-certified diplomat in emergency medicine and anexperienced physician who has examined thousands of children and whowas consultant to the San Diego County District Attorney andarchitect of protocols for the proper physical examination ofchildren suspected to have been abused, has reviewed all the medicalreports prepared in this case, as well as the color photographsplaced into evidence, and Dr. Mengelberg's trial testimony. Heconcludes that there is nothing whatsoever in this evidence showingany 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 guaranteethat her conclusions mean absolutely nothing. Furthermore, thephotographs clearly demonstrate that even under general anaestheticJennifer's anal opening is normal, and that Dr. Mengelberg'stestimony that Jennifer's hymen was "completely dilated andgone" is flatly refuted by the photograph showing the presencein Jennifer of a normal hymen of normal size. Dr. Gabaeffdemonstrates that Dr. Mengelberg's testimony in this case wasinexcusably biased, and her opinions entirely unsupported, andlargely refuted, by the available evidence. Dr. Mengelbergproffered the only medical evidence presented to the jury. However,in light of statements attributed to the four sons of Lorie "Logan" andGail "Morgan" that they had had screwdrivers repeatedly inserted intotheir rectums, they were medically examined in early February of1987. No evidence was found on any of these boys indicating thatthey had been sexually abused. (See Declaration of Dr. Gabaeff,Exhibit *.) None of thisexculpatory medical evidence was placed before the jury by counselfor Ms. Malcom. Not only did counsel not present evidence to thejury which showed that it was highly unlikely that thescrewdriver-penetration of "Brian" and "Chuck"'s rectum reallyhappened, but counsel made no challenge at all to the inadequatequalifications and meaningless but highly damaging testimony of Dr.Mengelberg. 13 Trauma Evidence Despite hisearlier harsh assessments, the prosecution called Lorie "Logan", Gail"Morgan", M'ylissa "Richards", and * "Mason" to testify regarding behaviorby their children. After their testimony Dr. Kevin McGoverntestified that there is a constellation of symptoms related to timeswhen children are sexually abused which "quantifiable research"has identified. (RT 12.) After a lengthy hypothetical questionpremised on the parents' testimony of their children's behavior, Dr.McGovern testified that these behaviors were caused by some form oftrauma, and that "you normally see these types of symptoms inchildren where there's been some type of abuse. Symptoms we'vetalked about here, i.e., hostility, clinging, insecurity, bedwetting,soiling pants, hanging on to parent's leg, desire not to go a certainlocation, normally are related to abuse." (RT 39.) Trial counselnever 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, "TheUnreliability of Expert Testimony on the Typical Characteristics ofSex Abuse Victims," Georgetown Law Review , Vol. 74, p.429 (1985); Conte, J., "Evaluating Children's Reports of SexualAbuse: Results from a Survey of Professionals," AmericanJournal of Orthopsychiatry , Vl. 61, p. 428, 433 (1991).) There isnot now, nor was there in 1987, a set of symptoms that were acceptedto be the product of sex abuse. 14 Dr. McGovern'sexpertise on the nature of trauma was sharply questioned by the courtin the case of Pard v. United States (Ore., 1984) 589 F. Supp.518 (attached hereto as Exhibit *.). In that case defendant MichaelPard sued the Veteran's Administration for not adequately diagnosingthe combat-related Post-Traumatic Stress Disorder (PTSD) he said hesuffered from. The evidence was a videotaped interview made by KevinMcGovern. The court gave examples of Dr. McGovern's questioningtechnique, "which is so faulty and leading in character as tocast grave doubt about his conclusions." ( Id ., at 523.) Not only was Dr.McGovern's conclusion that Pard suffered from PTSD countered by otherpsychiatrists, but the events in Vietnam which were underlyingfactual bases for the "trauma," had not taken place. ( Id .,at 523-524.) Pard's memory of these non-events allegedly returnedduring an interview with McGovern, when the idea of a trauma and anightmare was suggested by McGovern himself. The court rejected Dr.McGovern's testimony and concluded that Pard's testimony was nottrue; that he did not have the experiences or the stressors referredto by McGovern; and Pard never suffered from PTSD. ( Id ., at524-525.) Thus, Dr.McGovern had manufactured a non-existent trauma. The court dismissedPard's lawsuit. This case was published in 1984, well before MsMalcom's trial. Counsel should have used it to impeach Dr. McGovernas a man who finds trauma everywhere, even in ordinary childbehavior; and if he can't find it, he is not above producing ithimself. Instead, counsel did not even ask Dr. McGovern to describethe "research" on which his views ere founded. Defense Ms. Malcom'sdefense was essentially one of common sense. She elicited testimonyfrom her ex-husband and from members of the Binford family who hadlived with her, and from Kate Sullivan, the young woman she had hiredto assist her day care center, that they had never seen any behaviorthat would suggest she was a pedophile, or any traces of bizarreconduct. She alsoappeared on her own behalf, and strongly denied that any of thecharged events had taken place. She placed before the jury evidencethat her life was an open one, and that the events described, such assexual orgies out of doors involving herself and eight children, werehighly implausible. What she did notdo, however, was counter in any way the state's "experts." Sharon Krause was presented as an expert in investigation. BriggitteMengelberg was presented as a medical expert. Kevin McGovern waspresented as an expert on victims and trauma. Not only did counselnot counter these very vulnerable witnesses with experts of his own,but he did not do even the most rudimentary cross-examination. He asked noquestions of Krause or Nelson about their investigative techniqueseither in general or as applied in any interview. He did not noticematerial contradictions in Krause's trial testimony, let alone thepolice reports. He did not notice Dr. Mengelberg's lack ofqualifications or the manifest bias and mistaken beliefs about theearlier examinations contained in her report. There is no record ofhis having consulted his own doctor, or having asked the court forfunds to retain one to at least examine Dr. Mengelberg's report andphotographs. Finally, he failed to make Dr. McGovern specify justwhat was the research on which he relied. Without expertsto counter these witnesses, and without even questions that mightarouse skepticism, the case was not a credibility battle between Lynnand her children. It was Lynn against the professions as well. Fora jury that was not aware of how bizarre this investigation hadstarted or how bizarre it became, the choice of who to believe waseasy. Sentencing After Ms. Malcomwas convicted, she was referred to Dr. Steven Jensen for apsychological evaluation. Dr. Jensen made a thorough examination. He interviewed Ms. Malcom and administered a battery of nine tests toher. Dr. Jensen stated that there was a notable lack of data derivedfrom conventional assessment techniques to support a diagnosis ofsexual deviancy. He expected more symptoms of delusional thinking,somatization, and antisocial attitudes, but "neither objectivenor projective personality tests revealed anything in this regard." A mental status examination likewise revealed nothing significant. "Were evidence of her misconduct merely compelling, this womanmight appear to be innocent. Her act is that good. Unfortunatelyfor her, the evidence is so overwhelming that amy temptation to beswayed is short-lived." (p.8.) The"overwhelming" evidence, however, consisted of the medicalreports described above, as well as police reports and therapistKaren Gladyschild's reports containing material that the prosecutorhimself had characterized as false! (See, e.g., Jensen's summary ofthe "facts" of this case, which include allegations thatMs. 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 hadsupplied the therapist with allegations that he had represented inopen court to be untrue. It was solely on the basis of this falsematerial that the psychologist labeled Ms. Malcom as a pedophile.(This psychological report is attached to the memorandum as Exhibit7.) Thus, none ofthe psychologist's tests revealed anything pathological. So, too,have prison psychologists not found anything in Ms. Malcom'scharacter that would support the amount of deviancy required toperform these heinous crimes. Ms. Malcom has been an excellentinmate, and gained many adherents within the correctional system andoutside the community during her time in prison. CONCLUSION JusticeBrandeis's eloquent observation over a half century ago isparticularly appropriate in this case: Experienceshould teach us to be most on our guard to protect liberty when theGovernment's purposes are beneficent. Men born to freedom arenaturally alert to repel invasion of their liberty by evil-mindedrulers. The greatest dangers to liberty lurk in insidiousencroachment by men [and women] of zeal, well-meaning but withoutunderstanding. Olmstead v.United States (1928) 277 U.S. 438, 479 (Brandeis, J., dissenting) For the reasonsset forth in this Memorandum, Ms. Malcom prays that this Boardrecommend to the Governor that he grant clemency to Ms. Malcom. Dated: ______________, 1997 RespectfullySubmitted _______________________ MichaelR. Snedeker _______________________ LisaR. Short Attorneysfor Petitioner MarilynnMalcom 1 . See Nathan, D. & Snedeker, M. Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt (1995) Basic Books [analyzing the origins and rapid growth of false charges of ritual sex abuse during the 1980's]. 2 . Counsel has provided citations to the trial record in State v. Malcom , Clark County Superior Court No. 87-1-00339-6, for the convenience of the Board and opposing counsel. These generally lead with the date of the transcript, followed by "RT" for Reporter's Transcript, and the specific page numbers. Transcript references cited are attached as Exhibit B and are arranged chronologically. Should the Board wish to review the transcripts in full, counsel would be happy to make them available. 3 . The Binford family testified in support of Ms. Malcom at trial. (See 9/16/87 RT 56 et. seq.) 4 . Kate Sullivan testified at trial in support of Ms. Malcom. 5 . Investigative reports made available to the defense are collectively attached hereto as Exhibit D and arranged chronologically. References in this Petition to particular reports are made by the date of the report and the individual making the report. Most of the reports delete the actual names of the witnesses and use designations of "W1," "W2," and so forth. A Key to the witnesses' names is included as the first sheet of Exhibit D. Also included at the beginning of the investigative reports is a chronology of contacts and a chronological index of the reports. 6 . Prior to April 6, the only person named by the children as a perpetrator was Kirk Malcom. 7 . It is noteworthy that the April 6, 1987 by Nelson is not included in the chronological summary of the investigation provided by the CCSO which appears at the beginning of Exhibit *. 8 . Over the course of the investigation, several children either initially, persistently or permanently denied the stories of abuse told by their peers, both in regard to Kirk and in regard to Ms. Malcom. These denials are discussed at greater length in the Declaration of Dr. Maggie Bruck, attached hereto as Exhibit *. 9 . Thoennes, N., Tjader, P., "The Extent, Nature and Validity of Sexual Abuse Allegations in Custody/Visitation Disputes", Child Abuse and Neglect , 1990, vol. 14, no. 2, pp. 151-163. 10 . Cases in which the leading, suggestive and/or coercive quality of investigative interviews with children was a major factor in authorities' dropping charges against defendants or juries' acquitting or appeals courts' reversing include: (1) Kelly Michaels in Maplewood, New Jersey: see "Trend Seen in Abuse-Case Reversal," New York Times, April 6, 1993, p. A9. (2) Essex County New Jersey (defendant D.N.): Charlier, Tom, "Methods of Inquiry Pressure Children," in "Justice Abused: A 1980's Witch-Hunt," The Commercial Appeal (Memphis Tennessee), January, 1988 (six-part series, hereinafter, Commercial Appeal ) p. A15, 16. (3) El Paso, Texas: ibid ., and as "As Children Point, Critics Sound Off," Commercial Appeal , supra , p. A17; Nathan, D., "Day-Care Witch Trials: One Acquittal, One Conviction, and a Lot of Bad Testimony," Village Voice April 23, 1988; Rodriguez, B. "Juror Says State Botched Noble Case," El Paso Times April 10, 1988 p. 3A. (4) Honolulu, Hawaii: Commercial Appeal , supra , p. A16. (6) Jordan, Minnesota (Scott County): Downing, Shirley, "Fami"Logan", Town Divided by Wave of Accusations," in Commercial Appeal , supra , p. A-10, A-15-16: Newsweek , February 18, 1985 p. 75; Humphrey, Hubert, H. III, Report on Scott County Investigations (State of Minnesota Attorney General's Office. February, 1985); Rigert, J. et al., "The Scott County Case/How it Grew; Why it Died," Minneapolis Star and Tribune May 26, 1985 p. A-1. (7) New Braintree, Massachusetts: Commercial Appeal , supra , p. A-16. (8) Reno, Nevada: Commercial Appeal , supra . p. A-16 and "Patterns Emerge Across Nation," p. A-3. (9) Cincinnati, Ohio: Commercial Appeal , supra , p. A-3, and "Origins Similar, Endings Different in Sex Abuse Cases," p. A-17. (10) Bucks County, Pennsylvania: Rubinstein, Alan M. "Report: Investigation into Breezy Point Day School", Office of the District Attorney, Bucks County, Pennsylvania (March, 1990). (11) Olney, Maryland: Cage, Richard, "Problems in Multiple Victim Cases," audio recording of presentation given before the Health Science Response to Child Maltreatment Conference, Children's Hospital, San Diego, California, January 17-20, 1980. (Available as tape No. 200-19 from Convention Recorders, 5401 Linda Vista Road, San Diego, Calif.) (12) "McMartin" (Los Angeles County, California): Reinhold, Robert, "2 Acquitted of Child Molestation in Nation's Longest Criminal Trial," New York Times , January 19, 1990, p. A-1; Mydans, Seth, "For Jurors, Facts Could not be Sifted from Fantasies,: New York Times , January 19, 1990 p. A-12; "McMartin Preschool's Lessons, " American Bar Association Journal (April 1990), pp. 28-29; Timnick, Lois, "Buckey Jury Deadlocks; Mistrial is Declared," Los Angeles Times , July 28, 1990, p. 1A; McGraw, Carol, "In the End, Jury Gave in to Confusion," Los Angeles Times , July 28, 1990, p. A1; "The Longest Mistrial," Time , August 6, 1990, p.28. (13) San Diego, California: Grand Jury Report and Supplement, 1992, San Diego County Grand Jury. 11 . Counsel has possession of the entire reporter's transcript of the trial, and will gladly supply the Board with any or all portions of it that it may wish to peruse. 12 . Dr. Bruck demonstrates reports that Sharon Krause's reports attributed to children statements that could only have come from her. (Exhibit B, p. *.) Dr. Bruck's conclusion that Krause's reports are untrustworthy is corroborated by Krause's trial testimony. After saying that she wrote down verbatim everything said by both herself and the child, Krause explained away inconsistencies by recalling statements supposedly made by the child that were not contained in her report. (See [date]*RT *.) 13 . All medical reports reviewed by Dr. Gabaeff are attached hereto as Exhibits F-L. One set of the photographs of Jennifer Malcom that were trial exhibits will be attached to the original of this Memorandum as Exhibit L1 and L2. 14 . Although researchers have never been able to identify common reactions that children have to sexual abuse, experts were quite willing to testify that a child has been sexually abuse based on specific symptoms in the 1980's. The behavioral grounds of child complainants offered by experts for how they arrived at their diagnoses varied widely, and occasionally were just the opposite of what other experts relied on. (See, e.g., State v. Maule (Wash., 1983) 667 P.2d 96 (sleep disruption, loss of appetite, withdrawal, regression, fear of being alone with a particular person, clinging to mother); State v. Myers (Minn., 1984) 359 N.W.2d 604, 608-609 (poor mother-daughter relationship, fear of men, unusual sexual knowledge, looking and acting older); State v. Kim (Hawaii, 1982) 645 P.2d 1330, 1333 (fear for safety, depression, anxiety, negative view of sex). Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1 ?   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Dr. Maggie Bruck's Analysis I,Maggie Bruck, say as follows:      Ihold a doctorate in experimental psychology and am an Associate Professor inthe Department of Psychology and Department of Pediatrics at McGill University in Montreal, Canada.  I specialize in research in the field of developmentalpsychology.  My particular research interests focus on children's language andmemory development.      Ireceived my undergraduate degree in Psychology from Wheaton College in Norton, Massachusetts, in 1967.  In 1969, I received my Master's degree inExperimental Psychology from McGill University.  I earned my Ph.D. inExperimental Psychology from McGill University in 1972.      Myacademic/research history includes experience as a Research Associate in theMcGill University Department of Psychology (1972) and at the McGill-MontrealChildren's Hospital Learning Center (1972-1975).  I served as a Senior StaffMember of the Center for Applied Linguistics in Arlington, Virginia, in 1975and 1976.  From 1976 through 1993 I was the Research Director at theMcGill-Montreal Children's Hospital Learning Center.  From 1976 through 1992 Iwas an Associate Member of the Department of Psychology at McGill University.  Since 1991 I have been an Associate Professor in the Department of Psychologyand Department of Pediatrics at McGill University.      Since1971 I have taught the following subjects: Educational Psychology (McGill);Tests and Measurement (McGill); Language Development (Sir George WilliamsUniversity); Research Methods in Psycholinguistics (McGill); ChildhoodPsychopathy (McGill & Concordia Universities); Graduate Clinical Seminar(McGill); Psychology of Language (McGill); Graduate Cognitive Seminar (McGill);Experimental Problems (McGill); Reading Ability and Reading Disability (McGill);and Children in the Courtroom (McGill).  I have also served as a SeniorLecturer in the Senior Resident Ambulatory Rotation in the McGill UniversityDepartment of Pediatrics.      Myadministrative experience includes tenure as: Research Director at the McGillUniversity Children's Hospital Learning Center; Acting Director,McGill-Montreal Children's Hospital Learning Center; and Assistant Director ofthe Learning Center of Quebec.      Ihave served on several University committees including the Cyclical ReviewCommittee for the Department of Otolaryngology; Graduate Faculty Social ScienceResearch Grants Committee, Graduate Faculty Social Science Research GrantsCommittee (Chair), Graduate Faculty Council, and Graduate Fellowship Committee.      Ihave also reviewed numerous grants for organizations including: the SocialScience and Humanities Research Council; the Natural Sciences and EngineeringResearch Council of Canada; the McGill-Montreal Children's Hospital ResearchInstitute; the Fonts de la Recherche en Sante du Quebec; B.C. Health CareResearch Foundation; the National Institute of Health; and the Ontario MentalHealth Foundation.      Ihave reviewed articles for the Canadian Journal of Behavioral Science; Readingand Research Quarterly; Canadian Journal of Psychology; DevelopmentalPsychology; Memory & Cognition; International Journal of BehavioralDevelopment; Journal of Experimental Psychology; British Journal of Psychology;Law & Human Behavior; and Applied Cognitive Psychology.      Ihave served as a member of the following Review Committees: National Health andWelfare Canada Development Program; American Psychological Association(Division 7); Society for Research in Child Development; and the AdvisoryCommittee Massachusetts General Hospital Institute of Health Professionals.  Ialso serve or have served on the Editorial Boards of the following scientificpeer review journals: Applied Psycholinguistics; Journal of ExperimentalPsychology; Psychology, Public Policy and Law; Child Development; and Journalof Experimental Psychology: Applied.      Iam a member of the American Psychological Society, the Society for Research inChild Development, the Psychonomics Society, and the Society for ScientificStudy of Reading.      Ihave received nearly two dozen research grants during the last 20 years.  Ihave published some 60 articles in peer reviewed publications, 16 book chaptersand co-authored with Steven Ceci, Ph.D., Jeopardy in the Courtroom: AScientific Analysis of Children's Testimony , American PsychologicalAssociation: Washington, D.C. (1995).  Dr. Ceci and I won the Robert ChinMemorial Award for the most outstanding article on child abuse in 1994 for ourarticle The Suggestibility of Child Witnesses: An Historical Review , 113Psychological Bulletin, 403-439 (1993).  I have also presented more than 40peer reviewed papers at professional conferences and presented more than 50invited addresses.      Ihave testified as an expert trial witness in North Carolina v. Robert FultonKelly ; R. v. Linda Sterling (Saskatchewan); and at an evidentiaryhearing in California v. Scott Kniffen, Brenda Kniffen, Alvin McCuan, andDebora McCuan . I have participated as amicus curiae in New Jersey v.Margaret Kelly Michaels (New Jersey Supreme Court) and Snowden v.Singletary (United States Court of Appeals for the 11th Circuit). Facts andissues in these cases were similar to those present in this case.  Mycurriculum vitae is appended hereto.      Forthe past seven years, I have conducted research in the area of the reliabilityof children's testimony.  With my colleague, Dr. Stephen Ceci, I have alsoconducted a number of experimental studies on the factors that influencechildren's suggestibility; these have been published in peer-review journals. I have reviewed the materials of a number of actual cases of alleged sexualabuse of children, either in the capacity of an expert witness or consultant. To a large extent, many of these materials have motivated my research studies.      Ihave been asked by Michael Snedeker to offer an opinion regarding thereliability of the reports of the child witnesses in the Malcom case. To reach an opinion I have relied on the material listed in the Index of thisreport.  This material is sufficient for me to form an expert opinion that thecircumstances that surrounded and promoted the children's disclosures resultedin a substantial risk of producing false and misleading reports from the childwitnesses in the Malcom case, and that the statements by the childrenrelated to sex abuse are therefore unreliable.                          Introduction      During the 1980s andearly 1990s, there were a number of cases similar to that of Lynn Malcom's inwhich young children claimed that their parents or other adults sexually abusedthem.  The claims were sometimes fantastic, involving reports of ritualisticabuse, pornography, multiple perpetrators and multiple victims (e.g, Kern County; McMartin Day Care; Jordan, Minnesota; Kelly Michaels; Fels Acres Day Care;Little Rascals Day Care).  For the most part, there was never any medicalevidence of sexual abuse in these cases nor were there any adult eyewitnesses. Nonetheless, the children's often fantastic and uncorroborated claims werebelieved by mental health professionals, by police officers, by prosecutors,and by jurors.  This belief was reflected in the common slogan, "Believethe Children."  As a result, in the absence of direct scientific evidenceregarding how children might come to make false allegations regarding sexualabuse, many of these cases eventuated in the conviction of the allegedperpetrators.      Now, 10-15 yearslater, we have developed a better sociological as well as psychologicalunderstanding of the possible factors that might influence children'stestimonies in cases such as that of Lynn Malcom.  Specifically, in the pastdecade, there has been an exponential increase in research on the accuracy ofyoung children's memories and the degree to which young children's memories andreports can be molded by suggestions implanted by adult interviewers.  Althoughsome of these studies document the strengths of young children's memories,increasing numbers of studies highlight their weaknesses when they areinterviewed under certain conditions.  As will be explained, these sameinterviewing conditions, which have a high risk of contaminating youngchildren's reports, characterize the available descriptions of the interviewscarried out with the child witnesses in the Malcom case.      Based on thematerials that I was given to review, it is my opinion that the circumstancesthat surrounded and promoted the children's disclosures have a substantial riskof producing unreliable reports from young preschool children.  These preschoolchildren's reports were then used to elicit a confession from Jennifer Malcom. However, because so many of the preschool children's reports were unreliableand also retracted by at least one of the children, then logically, theaccuracy of Jennifer's confession is also highly doubtful and unreliable.  Thisconclusion is supported by Jennifer Malcom's recantation at the age of 18. Finally, it is my opinion that the record of the case may not present anaccurate account of the way that the children's accounts evolved or wereelicited.      This document beginswith a discussion of the conditions under which young children disclose sexualabuse.  The second section covers the pertinent social science research thataddresses the issues of children's suggestibility and the conditions underwhich children may make false allegations.  In the final section, evidence iscited from the interviews with the Malcom child witnesses tosubstantiate the expert opinion that the interviewing procedures used with thechild witnesses in Malcom were so faulty that there is a substantialrisk that the children's subsequent reports were mere reflections of theinterviewers' suggestions.            Patterns ofDisclosure of Child Sexual Abuse      In evaluating thechild's testimony, it is of primary importance to understand the evolution ofthe child's reports.  The following pattern has raised the most concerns.  Thechild is initially silent:  He does not make any unsolicited or spontaneousstatements about abusive acts.  Rather, the allegations emerge once an adulthas a suspicion that something has occurred and starts to question the child. At first, the child denies the event happened, but with repeated questioning,interviewing, or therapy, the child may eventually come to make a disclosure. Sometimes after the disclosure is made, the child may recant, only to laterre-state the original allegation.   Disclosures in theMalcom Case      This pattern ofdisclosure characterizes the child witnesses in the Malcom case.  Thefirst allegation of sexual abuse was made on January 29, 1987.  It was made by a four-year-old child, “Brian Logan”, when he was watching a video on"strangers" with his mother Lori.  Based on the mother's suspicionsthat Kirk Malcom may have molested “Chuck Morgan” during the summer, she askedBen if Kirk had done anything to him.  According to Lori's report of that conversation,Ben claimed that Kirk inserted a screwdriver into his rectum, that there wasoral copulation, and that the three “Morgan” children and Jennifer Malcom werepresent. [1]      Lori “Logan” immediately told Gail “Morgan”, her next door neighbor, the details of Ben'sallegations.  When questioned by his parent, “Chuck”, the oldest of the“Morgan” children (seven years old) denied that Kirk had done anything to him,although according to the mother, he said that it did happen to other children. [2]  “Chuck”'s denial should be contrasted against his disclosure several monthsbefore when he had disclosed to his mother that Kirk had shown him how tomasturbate. [3]   Gail“Morgan” also questioned her other two children “James” (five years) and “Niel”(three and one-half years); according to the mother, both reported some abuseby Kirk. [4]      On February 2, Lori “Logan” called the parents of “Mark Mason” (six years, nine months) who attended a daycarerun by Lynn Malcom.  Lori told the “Mason”s about the other children's allegations. [5]  When first questioned by his father, Mickey denied any abuse, but finallyadmitted that Kirk put his hand down his pants and inserted something like an"Easter toy" into his buttocks.  When his father falsely told Mickeythat Kirk was in jail, Mickey claimed that Kirk did penetrate his rectum with ascrewdriver. [6]   WhenMickey's mother attempted to interview him about his participation or knowledgeabout sexual abuse, Mickey would not tell her anything for the first two daysof her questioning. [7]        The sixth child was"Bertil Swanson" (four years, nine months) who also attended Lynn Malcom'sdaycare. There is no information on whether he disclosed to his parents. However, in his first interview at the police station on February 19 [8] ,he made no allegations of abuse.  Further, when seen for a medical examinationthe day before, he made no allegations of abuse. [9]  Jennifer Malcom was interviewed by Sharon Krause on February 6. [10]  Prior to this interview she denied to her parents any abuse by Kirk.  Duringthis interview, she did eventually make claims of abuse by Kirk.  But she didnot make any allegations regarding anal penetration by a screwdriver.      The children wereinterviewed through the weeks of February and except for "Bertil", they all madeclaims of abuse against Kirk.  During some of these interviews, some of thechildren claimed that Kirk would threaten them if they told. [11]      The next set ofallegations emerged toward the middle of April 1987.  In the first week ofApril, apparently Ben reported that Lynn was present during the abuse. [12]  Lori called Gail “Morgan” to relate this news.  Gail interviewed each of herchildren separately and they each denied any knowledge of Lynn being present. On April 12, however, the children begin to make allegations about Lynn.  On that day, “Mark Mason” and his parents were visiting the “Logan” and Mickey wasbeginning to "open up" about Lynn.  Lori called Gail to tell her tocome over.  The children were questioned one at a time and they made drawingsmaking allegations about Lynn. [13]   OnApril 13, Mr. “Logan” called Jim Malcom to tell him of these allegations.  Onthat same day, Mr. “Logan” called Sharon Krause to report that Lynn had threatened to kill the children if they told. [14]   Onthat same day, Ms. Gladyschild (the therapist of Ben and Mickey) also called toreport that Lynn had threatened to kill Ben with a gun. [15]  The thrust of this new set of allegations was that the abuse was perpetrated by Lynn and not by Kirk.  These are the allegations that were the basis of Lynn's conviction.      The allegationscontinue to evolve.  On April 17, Mickey's allegations involved dead bodies. [16]  On that same date, Ben told his mother that people had been killed.  Thechildren were taken into the woods by their parents in attempt to dig for thesebodies.  No evidence was ever found. [17]      After severalinterviews by the police, Jennifer confessed that Lynn Malcom sexually abusedher. [18]   OnMay 13, there was a new set of allegations.  Mickey reported that Lynn's boyfriend hurt children and that he took pictures of the children. [19]  On the next day, May 14, the therapist, Gladyschild, called the police torelate that Ben had just reported that Lynn and Kirk had murdered six peopleand that Lynn's roommate Donna was involved in the sexual assault and murder. Ben also related in that session that the bodies were buried in a junk yard in Ridgefield.  Later that day, Gladyschild called the police again to report that in hissession that day, Mickey alleged that Jeff Williams (a friend of Lynn's) had molested him.  That same day, Gail “Morgan” reported to the police that“Chuck” had made allegations about another male molesting him and about acomputer that was stored near Ridgefield in a junkyard. [20]      On June 2, “Chuck”recanted most of his prior allegations about Lynn Malcom. [21]   Interpretation ofPatterns of Disclosures      There are twodifferent interpretations of the evolution of these allegations.  The firstinterpretation is that the progression from silence to denial to disclosure torecantation to re-statement is common and perhaps even diagnostic of sexualabuse.  Some professionals claim that children have a great deal of difficultydisclosing and may later recant either because they are afraid (due tothreats), ashamed, or even believe themselves to be culpable (see Bradley &Wood, 1996, for a review).  Although there are some formal models of thedisclosure process (e.g., Summit's (1983) Child Sexual Abuse AccommodationSyndrome), these models were not derived from scientific studies, but from clinicalintuitions.  Furthermore, there is little scientific evidence to support theview that children may not readily or consistently disclose sexual abuse.  Inthe most recent study, Bradley and Wood (1996) found that among 249 validatedcases of child sexual abuse, 5% of the children denied the abuse and only 3%recanted their earlier reports of abuse.  The available evidence also does notsupport the common assumption that sexually abused children do not disclosebecause of explicit threats made by the perpetrators.  In one study, thelikelihood of disclosure was unrelated to threats of the offender (Sauzier,1989).  When the offender used aggressive methods to gain the child'scompliance to keep the secret, children were as likely to tell about the abuseimmediately following the event as to never disclose the abuse.  In a largestudy of child victims of sexual abuse, Gray (1993) reported that although 33%of the children in her study were threatened by the perpetrator not to tell,nevertheless two-thirds of these children still disclosed.      To summarize,although a small percentage of youngsters do appear to disclose their abusereluctantly, with a smaller percentage subsequently recanting theirdisclosures, the overwhelming majority of children appear to maintain theirclaims, never denying them to officials once they are questioned.  Thus,although there are validated cases of abuse that fit the disclosure pattern, itrepresents a distinct minority of sexually abused children.  Furthermore,although threats are sometimes used to silence sexually abused children, theseare not predictably effective.  Despite the frail empirical evidence for the"disclosure process," it has been and continues to be a wellestablished belief among some professionals (see Bruck, Ceci & Hembrooke,in press).  Unfortunately, this belief can and does get translated into thefollowing practices:  Abused children must be relentlessly pursued or they willnever disclose their abuse; one should not readily accept their denials or recantationsbecause truly abused children usually show these very behaviors.  Sometimes,interviewers assure themselves of the safety and necessity of such techniquesby stating that children cannot be influenced to "lie" about sexualabuse (Faller, 1984; Sgroi, 1982).  This certainly seems to have been theprevailing belief and procedure in the Malcom case.  There is a secondinterpretation of a disclosure pattern that begins with silence, thenprogresses to denial, and eventuates in disclosure (and sometimes ends inrecantation).  The disclosures are the product of suggestive influences thatcan sometimes eventuate in false allegations.      In order to discussof this hypothesis, we focus on the concept of "suggestive interviewingtechniques."                 SuggestiveInterviewing Techniques Interviewer Bias      "Interviewerbias" is a term used to characterize those interviewers who hold a prioribeliefs about the occurrence of certain events and, as a result, mold theinterview to elicit statements from the interviewee that are consistent withthese prior beliefs.  One of the hallmarks of "interviewer bias" isthe single-minded attempt to gather only confirmatory evidence and to avoid allavenues that may produce negative or inconsistent evidence.  Thus, whilegathering evidence to support his/her hypothesis, an interviewer may fail togather any evidence that could potentially disconfirm that hypothesis.  Thebiased interviewer does not ask questions that might provide alternateexplanations for the allegations (e.g., "Did your mommy and daddy tell youthat this happened or did you see it happen?").  Nor does the biasedinterviewer ask the child about events that are inconsistent with his/herhypothesis (e.g., "Who else beside your teacher touched your private parts? Did your mommy touch them, too?").  And the biased interviewer does notchallenge the authenticity of the child's report when it is consistent withhis/her hypothesis (e.g., "It's important to tell me only what you saw,not what someone may have told you," or, "Did that reallyhappen?" or, "It's OK to say you don't remember or you don'tknow").  When provided with inconsistent or bizarre evidence, biasedinterviewers either ignore it or else interpret it within the framework oftheir initial hypothesis.  It is important to note that within this context, abiased interviewer may be a police officer, a therapist, and even a parent.  Ittakes no special skills to be a biased interviewer.      Research hasdocumented how interviewer bias can result in the generation of false reportsfrom children, even about touches on their own bodies (see Ceci & Bruck,1995 for a detailed description of studies).  One study is described below.      Clarke-Stewart,Thompson and Lepore (as described in Goodman & Clarke-Stewart, 1991) conducteda study in which five- and six-year-olds viewed a staged event that could beconstrued as either abusive or innocent.  Some children interacted with aconfederate named "Chester" as he cleaned some dolls and other toysin a playroom.  Other children interacted with Chester as he handled the dollsroughly and in a mildly abusive manner.      The children werequestioned about this event several times on the same day by differentinterviewers.  The interviewers were either (1) "accusatory" in tone(suggesting that the janitor had been inappropriately playing with the toysinstead of working), (2) "exculpatory" in tone (suggesting that thejanitor was just cleaning the toys and not playing), or (3) "neutral"and non-suggestive in tone.  In the first two types of interviews, thequestions changed from mildly to strongly suggestive as the interviewprogressed.      Following the firstinterview, all children were asked to tell in their own words what they hadwitnessed and then they were asked some questions about the event.  Then, eachchild was interrogated by a second interviewer who either reinforced orcontradicted the first interviewer's tone.  Finally, children were asked bytheir parents to recount what the janitor had done.      When questioned by aneutral interviewer, or by an interviewer whose interpretation was consistentwith the activity viewed by the child, children's accounts were both factuallycorrect and consistent with the janitor's script.  However, when theinterviewer was biased in a direction that contradicted the activity viewed bythe child, those children's stories quickly conformed to the suggestions orbeliefs of the interviewer.  By the end of the first interview, 75% of thesechildren's remarks were consistent with the interviewer's point of view, and90% answered interpretive questions (e.g., "Was he doing his job or justbeing bad?") in agreement with the interviewer's point of view, as opposedto what actually happened.  When the second interviewer contradicted the firstinterviewer, the majority of children then fit their stories to the suggestionsof the second interviewer.  If the interviewers' interpretations wereconsistent across two interviews, though inconsistent with what the child hadobserved, the suggestions planted in the first session were repeated by thechildren in the second session.  When questioned by their parents, thechildren's answers were consistent with the interviewers' biases.      Similar studies havebeen conducted whereby naive interviewers are explicitly given true and falseinformation about events in which children or even adults participated (e.g.,see Ceci & Bruck, 1995, for descriptions of studies by Ceci, Leichtman& White and by Pettit, Fegan & Howie).  If the interviewers believethat a certain event has occurred, then the child they are interviewing willoften make statements consistent with the belief even though the statements arefalse.      These studies provideimportant evidence that interviewers' beliefs about an event can effect theaccuracy of children's answers.  The data highlight the dangers of having onlyone hypothesis about an event, particularly an event that is ambiguous innature.   Biased Interviewers inthe Malcom Case      There are a number ofpieces of evidence that the parents, professionals, and police in the Malcom case believed that the children had been abused and that inconsistent ordisconfirmatory evidence was generally ignored.  Because there was a great dealof communication among the adults in this case, the bias seemed to have been strengthened.      The following aresome examples of bias among the parents, professionals and police in this case.      1.  “Brian Logan”'first allegation of abuse was not spontaneous but was the result of hismother's questions based on her prior suspicions about Kirk Malcom. [22]      2.  Lori “Logan” told the “Morgan”s and the “Mason”s about Ben's allegations.  Thus when theyquestioned their children, they knew about the details of Ben's reports.  Thebelief that something happened to another child may have set up the expectationthat similar events happened to their own children.      3.  The time courseat which different allegations emerged is remarkably similar, suggesting thateach time a new allegation emerged, it was believed by the adults who thenquestioned their children until they assented to a specific type of crime. Thus, five of the six child witnesses all made allegations about Kirk betweenJanuary 30 and February 2.  The next set of allegations involving Lynn emerged and were confirmed by the child witnesses within one week of April. Allegations of murders were made between April 14-17.  And finally theallegations of other adults' involvements occurred on May 13 and May 14.      4.  The belief systemof the adults was so strong that they interpreted many ambiguous behaviors asconsistent with abuse, regardless of how bizarre the claims or beliefs were. For example, the therapist Gladyschild believed her clients, no matter howbizarre their stories.  She thought she could tell from Ben's body language thathis stories about the murders of other children were true. [23]      Gail “Morgan” wasunwilling to give up her belief that her children's reports were false.  Forexample, she argued with Krause, who doubted the reliability of “James”'sreport that a child named Megan had been killed.  Gail “Morgan” said, "Iwill never forget “James”'s face when he talked about Megan" and she knewthat “James” was telling the truth. [24]      When the childwitnesses became tired or distressed during an interview, the police officersnever commented that perhaps this was because the questioning was coercive orunpleasant; the children's reticence was seen as a symptom consistent withdisclosing abuse.  For example, when Mickey was interviewed by Krause andNelson on April 14, they noted, "When we attempted to ask him about theurinating and defecations as reported by “Chuck Morgan”, Mickey immediatelywent to the furthest corner of the interview room, and keeping his body towardsthe corner would only turn his face and look at us as we spoke."      The policeinvestigation appeared to be one of seeking confirmatory evidence and ignoringdisconfirmatory evidence.      5.  Even thoughKrause and Nelson had been told about earlier abuse of Kirk and Jennifer, theydid not follow-up these reports.  Such evidence would have been important forinterpreting the medical findings of Jennifer as well as Jennifer's and Kirk'ssexual knowledge.      6.  The police'smajor hypothesis was that Lynn abused the children.  They did not pursue thechildren's claims that her roommate Donna was also involved.  Nor is there anyevidence that they interviewed Lynn's assistant who helped her take care of thechildren during the period of the alleged abuse.      7.  There are alsosuggestions in the reports that the parents, at least, and possibly onetherapist thought that the children were being ritualistically abused.  Onemother bought a book and questioned her son about its contents. [25]  The characteristics of this type of abuse (e.g, multiple perpetrators,pornography, drugs, satanic symbols, talk of the devil) all permeated thechildren's reports, possibly reflecting the bias of their interrogators.      8.  The police didnot seem to consider the sexual materials that were present in the “Logan” home.  Specifically, on April 16 [26] LynnMalcom told Sharon Krause that Jennifer had watched a video at Benjamin's housethat was a cartoon that showed intercourse.  Perhaps the children's statementswere based on details of this videotape.  Jennifer confirmed this in her April20 interview.  There is no indication that the police investigated the video.      There were also adultmagazines at the “Logan” household.  Mr. “Logan” showed “Chuck Morgan” picturesof dildoes from one of these magazines.  However, even though the police hadxeroxed a page from the magazine, they did not consider that perhaps some ofthe children's reports were based on exposure to these magazines.      9.  DetectiveNelson's search warrant of April 16 reveals many of his beliefs aboutpedophiles which were used to justify his search of Lynn Malcom's home.  Thesebeliefs include: --pedophiles gaingratification from pornographic pictures of children --pedophiles rarelydispose of these treasured materials --pedophiles collectpictures of their own victims; these photos are kept as a constant threat tothe child of blackmail and exposure --pedophiles usually runor own their own photographic reproductions systems --pedophiles often keepthe illicit materials in rental boxes outside their own homes --pedophiles use sexualaids --pedophiles keep diariesor informal notes, or audiotapes        At the end of hisrequest, Nelson stated, "All of the materials requested for seizure willidentify children who are being sexually exploited through child molestationand child pornography.  The materials may also identify other adults who areengaging in the sexual exploitation of children by these means."      The search warrantwas carried out and none of the alleged materials were found.  Nevertheless,Jennifer was removed from her mother's care and the interviews with thechildren continued despite the lack of any evidence.      10.  Although “ChuckMorgan”'s recantation interview on June 2 appears to contain many interviewingtechniques that characterize unbiased interviewers (are you sure this happened,are you getting mixed up, it is important to tell the truth), as discussedbelow the use of these techniques is limited to certain topics and not fullyexploited in the interview.  Specifically, the interviewer does not use theseto challenge the child about the primary allegations of the case.  Details ofthis extraordinary interview are discussed below.      Interviewer bias caninfluence the architecture of interviews and it is revealed through a number ofdifferent component features that have been found to be highly suggestive andto have a high risk of tainting young children's reports.  In the nextsections, some of the suggestive features that were used in the interviews withthe Malcom child witnesses are identified and discussed.    Repeated Interviews      Sometimes wheninterviewers do not obtain the desired information, they repeatedly questionchildren.  Often these interviews contain a host of leading questions andinformation that the interviewer thinks happened.  Sometimes after a number ofinterviews, children come to make reports consistent with the interviewers'beliefs.      This hypothesis issupported by results from a number of studies showing that when misleadingquestions or inaccurate information are repeated across multiple interviews,then the final reports become highly tainted, as illustrated by the followingstudy.      In this study (Bruck,Ceci, Francoeur & Barr, 1995) five-year-old children visited theirpediatrician.  During that visit, a male pediatrician gave each child a physicalexamination, an oral polio vaccine, and an inoculation.  During that samevisit, a female research assistant talked to the child about a poster on thewall, read the child a story and gave the child some treats.  Approximately oneyear later, the children were interviewed on three different occasions aboutthe inoculation visit.  During these interviews some children were given falseinformation:  they were told that the female research assistant gave them theinoculation and the oral vaccine.  A number of the children later reported thatthe research assistant had indeed performed a number of medical procedures onthem during the initial visit.      In the Malcom case, the child witnesses were repeatedly interviewed, by their parents, by thepolice and by their therapists.  Because of the way that the interviews werereported (see below), it is not possible to determine exactly how much leadingor misleading information children were actually told during each interview. But there are indications that the children were told what other children said(for example, Mickey was asked about urination and defecation as reported by“Chuck”; [27] "Bertil" was told by Krause that other children have told that their privateparts were touched; [28] andJennifer was asked about getting shots, [29] based on what the other children had told Krause).  Thus, it is possible thatthe children initially denied abuse and then later made allegations of abusebecause they were repeatedly interviewed and provided with information aboutthe alleged abuse.      Even if theinterviews did not contain much leading information, the fact that thechildren's stories changed and became more elaborated with time in asynchronized manner is problematic and raises concern about the reliability oflater reports.  It has been found that reports that emerge in a child's firstinterview are the most accurate, if the interviewer is neutral and uses aminimal number of suggestive techniques.  When children are later interviewedabout the same event and report new details not mentioned in the firstinterview, these have a high probability of being inaccurate (Bruck, Hembrooke& Ceci, in press b; Salmon & Pipe, in press).  These recent findingsare discrepant with the more common claim that children need to be re-interviewedbecause it helps them to remember new and important details.  However, it seemsthat this is not always the case, and repeated interviewing may be especiallydetrimental when the child is interviewed by a biased interviewer.   Repeating Questions Acrossand Within Interviews      Biased interviewerssometimes repeatedly ask the same question until the child provides a responsethat is consistent with their hypothesis.  A number of studies have shown thatasking children the same question within an interview, especially a yes/noquestion, often results in the child changing his original answer.  Childrenoften do this, reasoning that the question is being asked a second time eitherbecause the first answer given was wrong or that the interviewer must not havelike the first answer, regardless of its accuracy (e.g., Siegal, Waters, &Dinwiddy, 1988).      Poole and White(1991) examined the effects of repeated questioning within and acrosssessions.  Four, six, and eight-year-olds witnessed an ambiguous event.  Halfof the subjects were interviewed immediately after the event as well as oneweek later.  The remaining subjects were interviewed only once -- one weekafter the event.  Within each session, all questions were asked three times. Repeated open-ended questions (e.g., "What did the man look like?"),both within and across sessions had little effect, positive or negative, onchildren's responses.  However on repeated yes/no questions (e.g., "Didthe man hurt Melanie?"), the younger children were most likely to changetheir responses, both within and across sessions.  Also, when children wereasked a specific question about a detail for which they had no information(i.e. "What did the man do for a living?"), many answered with sheerspeculations.  Furthermore, with repeated questions, they used fewerqualifiers, omitting phrases such as "it might have been," andconsequently they sounded increasingly confident about their statements.  Inother words, children will often cooperate by guessing, but after severalrepetitions, their uncertainty is no longer apparent.      As will be noted in asection below, it is difficult to ascertain exactly what questions the childrenwere asked when interviewed, especially by the police.  But it is clear thatchildren's responses were sometimes inconsistent in these interviews. Sometimes they would begin the interview denying specific facts but by the endof the interview they would make allegations. It is entirely possible thatthese children changed their answers in order to please their interviewers.   Emotional Tone of theInterview      Interviewers can useverbal and nonverbal cues that communicate their bias.  At times these cues canbe subtle.  They can set the emotional tone of the interview and they can alsoconvey implicit or explicit threats, bribes, and rewards for the desiredanswer.  Children are quick to pick up on the emotional tones in an interviewand to act accordingly.  For example, in some studies when an accusatory toneis set by the examiner (e.g. "It isn't good to let people kiss you in thebathtub," or "Don't be afraid to tell"), then children in thesestudies are likely to fabricate reports of past events even in cases when theyhave no memory of any event occurring.  In some cases, these fabrications aresexual in nature.      In one such study,children played with an unfamiliar research assistant for five minutes whileseated across a table from him.  Four years later, researchers asked these samechildren to recall the original experience, and then asked them a series ofquestions, including abuse-related suggestive questions about the event(Goodman, Wilson, Hazan & Reed, 1989).  The researchers created "anatmosphere of accusation," telling the children that they were to bequestioned about an important event and saying things like, "Are youafraid to tell?  You'll feel better once you've told."  Although fewchildren had any memory of the original event from four years earlier, five outof the fifteen children incorrectly agreed with the interviewer's suggestivequestion that they had been hugged or kissed by the confederate, two of thefifteen agreed that they had their picture taken in the bathroom, and one childagreed that she or he had been given a bath.  In other words, children may giveinaccurate responses to misleading questions about events for which they haveno memory when the interviewer creates an emotional tone of accusation.      There are many otherstudies in the social science literature to show that reinforcing children forcertain behaviors also increases the frequency of these types of behaviors. Telling children "you are really brave for telling" is one example ofthis. If used inappropriately, the use of such supportive statements canproduce inaccurate statements.  When interviewers are overly supportive ofchildren, the children tend to produce many inaccurate as well as many accuratedetails (e.g., Geiselman, Saywitz & Bornstein, 1990).  Sometimesinterviewers' use of reinforcement becomes so intense that statements that areintended to be rewarding seem more like bribes and statements that are intendedto be mildly discouraging seem more like threats.  Finally, rewards and threatscan be very tangible such as offering the child treats if he tells whathappened.      In the Malcom case, there are glimpses from the transcripts of how the detectives tried tocreate an atmosphere of accusation in order to promote the accusations ofabuse.   Krausewith Jennifer (Feb 6):  "We need people to help us; children need to tellthings to feel better about something that was happening."   Krausewith "Bertil": (April 30):  "It is hard for children to say things to theirparents."   Krausewith "Bertil": (April 30):  Sometimes when things happened that bother childrenor grownups it would make that person feel better if they were able to talk tosomeone about it, so it wasn't bugging them anymore.  I asked "Bertil" if therewas anything that was bothering him that he wanted to talk to me about. Sometimes these enjoinders to tell contain information about the types ofactivities that it would be good to talk about.   Krausewith Jennifer (Feb 6):  Sometimes it is hard for children to talk especiallyabout touching things.   Finally, there isinformation from both Krause and Gail “Morgan” that Lori “Logan” bought Benjamintoys for telling so much. [30]   Interviews with Adultsof High Status      Young children aresensitive to the status and power of their interviewers and as a result theyare especially likely to comply with the implicit and explicit agenda of suchinterviewers.  If their account is questioned, for example, children may deferto the challenges of the more senior interviewer.  To some extent, the child'srecognition of this power differential may be one of the most important causesof their increased suggestibility.  Children are more likely to believe adultsthan other children, they are more willing to go along with the wishes ofadults, and to incorporate adults' beliefs into their reports.  This fact haslong been recognized by researchers since the turn of the century and has beendemonstrated in many studies (Ceci & Bruck, 1993, for review).  Forexample, children are less open to suggestive influences when the suggestionsare planted by their peers than when they are planted by adults (Ceci, Ross, &Toglia, 1987).      But children may alsobe sensitive to status and power differentials among adults.  This is aparticularly important issue for the testimony of child witnesses who areinterviewed by police officers, judges, and medical personnel.      A study by Tobey andGoodman (1992) suggests that interviews by high status adults who make suchstatements may have negative effects on the accuracy of children's reports.  Intheir study, preschoolers played a game with a research assistant who wascalled a "baby-sitter."  Eleven days later, the children returned tothe laboratory.  Half of the children met a police officer who said   "Iam very concerned that something bad might have happened the last time that youwere here.  I think that the baby-sitter you saw here last time might have donesome bad things and I am trying to find out what happened the last time youwere here when you played with the babysitter.  We need your help.  My partneris going to come in now and ask you some questions about what happened."        A research assistantdressed up as a police officer then questioned these children.  The otherchildren never met the police officer; they were only questioned by a neutralinterviewer about what happened with the baby-sitter.  When the children wereasked to tell everything they could remember, the children in the policecondition gave fewer accurate statements and more inaccurate statements thanchildren in the neutral condition.  Two of the 13 children in the policecondition seemed to be decisively misled by the suggestion that the baby-sitterhad done something bad.  One girl said to her mother, "I think thebaby-sitter had a gun and was going to kill me."  Later, in her freerecall, the same child said, "That man he might try to do something bad tome . . . really bad, yes siree."  The second child inaccurately reportedhis ideas of what something bad might be, by saying, "I fell down, I gotlost, I got hurt on my legs, and I cut my ears."      Goodman (1993)summarizes these findings as follows:   "Oneshould be concerned not only with the actual questions but also with thecontext of the interview.  An accusatory or intimidating context leads toincreased errors in children's reports (p. 15)."        It appears thatKrause and Nelson told children that they were the police in an attempt to getthem to open up.  Detective Nelson's interview with “Neil Morgan” on February 2illustrates how children may make allegations when the authority of theinterviewer is made explicit.  At the beginning of the interview “Niel” wasunforthcoming about specific allegations.  He originally claimed that Kirk hadinserted a screwdriver in his bottom, but then reported that Kirk was notthere.  He claimed that Kirk told "Bertil" to insert the screwdriver but that hehad kept his clothes on.  Nelson wrote in his report, "I then told “Niel”that I am a policemen and I like to help people and I would like to helphim."  Nelson asked “Niel” if he knew anybody who needed a doctor becausethey were sick and needed help.  Now “Niel”  replied "(Kirk) . . . He'ssick in his thinking . . . because he pulled my pants down and licked mybutt."      Another feature ofsome of the interviews in this case was that there was often more than oneadult questioner present in the interview (Krause and Nelson conducted a numberof interviewers; Krause and Peters conducted one interview with Jennifer).  Onemight argue that this might be a safe-guard to ensure that the child tells thetruth.  However, it also seems that additional adults merely multiply the numberof questions and suggestive interview strategies to which the children aresubjected.  These increased questions may increase children's willingness todefer to the adults' agenda rather than to their own memories of whether anevent actually occurred.   Stereotype Induction      Suggestions do nothave to necessarily be in the form of an explicit (mis)leading question suchas, "She touched your bottom, didn't she?"  One component of asuggestive interview involves the induction of stereotypes.  That is, if achild is repeatedly told that a person "does bad things," then thechild may begin to incorporate this belief into his or her reports, asillustrated by the next study by Lepore & Sesco (1994).      Children ranging inage from four to six years old played some games with a man called"Dale."  Dale played with some of the toys in a researcher's testingroom and he also asked the child to help him take off his sweater.  Later, aninterviewer asked the child to tell her everything that happened when Dale wasin the room.  For half the children, the interviewer maintained a neutralstance whenever they recalled an action.  For the remaining children, theinterviewer re-interpreted each of the child's responses in an incriminatingway by stating, "He wasn't supposed to do or say that.  That was bad. What else did he do?"  Thus, in this incriminating condition, a negativestereotype was induced: "Dale does bad things."  At the conclusion ofthese incriminating procedures, the children were asked three highly suggestive-misleadingquestions ("Didn't he take off some of your clothes, too?""Other kids have told me that he kissed them, didn't he do that toyou?" and, "He touched you and he wasn't supposed to do that, washe?")  All children were then asked a series of direct questions,requiring "yes" or "no" answers, about what had happenedwith Dale.      Children in theincriminating condition gave many more inaccurate responses to the directyes-no questions than did children in the neutral condition; this was largelybecause these children made errors on items related to "bad" actionsthat had been suggested to them by the interviewer.  Interestingly, one-thirdof the children in the incriminating condition embellished their incorrectresponses to these questions, and the embellished responses were always in thedirection of the incriminating suggestions.  The question that elicited themost frequent embellishments was:  "Did Dale ever touch other kids at theschool?"  Embellishments to this question included information about whomDale touched (e.g., "He touched Jason, he touched Tori, and he touchedMolly."), where he touched them (e.g., "He touched them on theirlegs."), how he touched them (e.g., "and some he kissed . . . on thelips"), and how he took their clothes off ("Yes, my shoes and mysocks and my pants.  But not my shirt.").  When they were re-interviewedone week later, children in the incriminating stereotype condition continued toanswer the yes/no questions inaccurately and they continued to embellish theiranswers.      Finally, theincriminating condition had a very powerful effect on children'sinterpretations of Dale's character and actions.  In comparison with childrenin the neutral interview condition, children in the incriminating interviewcondition were more likely to spontaneously make negative statements about Dale(e.g., "the guy came in and did some bad things") and to agree thatDale intended during the play session to be bad, mean, fool around, and not dohis job.      It appears that thechild witnesses in the Malcom case were also told that the Kirk and Lynndid something bad or that some of them needed help because they were sick.  Thechildren were told (sometimes falsely) that the defendants were in jail (e.g,Mickey's dad told him on Feb. 2 that Kirk was in jail), a statement thatpresupposes that the defendants did bad things.  Sometimes, the children wereable to provide details of their bad or sick deeds; other times, they simplyrepeated that they were bad.  For example on May 20, after repeated interviewswith therapists, parents, and police, “Brian Logan” tells Krause that it is sohard to remember everything and then reports that "They did bad things tous" and that "Lynn did bad things and she did a lot of stuff." Specific allegations only emerge with prodding.  In another example, "Bertil"knew that Kirk was bad but he didn't know why he was bad (Feb. 19) and on April30, the most he could say about Lynn was "Me knows why Lynn's in jail . .. Bad people get arrested and put in jail."  It is possible that thesechildren lived in an atmosphere where they heard so much talk about the badthings that the defendants did, that they came to believe this themselves andalso at times created detailed reports of false events that were consistent withthe stereotype of doing bad things.   The Use of Props andCues      Anatomically detaileddolls are frequently used by professionals when interviewing children aboutsuspected sexual abuse.  The major rationale for the use of anatomical dolls isthat they allow children to manipulate objects reminiscent of a critical event,thereby cuing recall and overcoming language and memory problems.  It is alsoargued that the dolls are used to overcome motivational problems ofembarrassment and shyness.      The use of anatomicallydetailed dolls has raised concerns, however, for at least two reasons.  First,the dolls are themselves suggestive (especially when used by a biasedinterviewer) and encourage the child to engage in sexual play even if the childhas not been sexually abused (e.g., Terr, 1988).  A child, for instance, mayinsert a finger into a doll's genitalia simply because of its novelty.  Second,it is impossible to make firm judgments about children's abuse status on thebasis of their doll play because, until recently, there were no normative dataon non-abused children's doll play.  Over the past several years, researchershave conducted a number of studies to address these concerns.      There are severalimportant findings.  First, there is no consistent evidence to suggest thatthere are characteristic patterns of doll play for "abused"children.  Many studies show that the play patterns thought to becharacteristic of abused children, such as playing with the dolls in asuggestive or explicit sexual manner, or showing reticence or avoidance whenpresented with the dolls, also occur in samples of non-abused children.  Forexample, Goranson (1986) conducted doll-centered interviews with 14 preschoolchildren. The interviewer asked each child if anyone had touched theirgenitalia.  The interviewer then followed up with more specific questions. None of the children used the dolls to demonstrate sexual intercourse. However, 50% of the children did insert their finger in the opening for thevagina or anus, and most stroked or tugged the penis or used it as a handle toswing the dolls.      Second, more recentstudies indicate that use of the dolls does not improve accuracy of reportingby young children.  In some cases, children are more inaccurate with the dolls,especially when asked to show with the dolls certain events that neverhappened.  For instance, three-year-old children visited their pediatrician fortheir annual check-up (Bruck, Ceci, Francoeur & Renick, 1995). Half thechildren received a genital examination where the pediatrician gently touchedtheir buttocks and genitals.  The other children were not touched in theseareas. Immediately after the examination, an experimenter pointed to thegenitalia or buttocks of an anatomically detailed doll and asked the child,"Did the doctor touch you here?"  Only 45% of the children whoreceived the genital exam correctly answered yes; and only 50% of the childrenwho did not receive a genital exam correctly answered "No" (i.e. 50%of these children falsely reported touching).  When the children were simplyasked to "Show on the doll" how the doctor had touched their buttocksor genitalia, accuracy did not improve.  Now only 25% of the children who hadreceived genital examinations correctly showed how the pediatrician had touchedtheir genitals and buttocks.  Accuracy decreased in part because a significantnumber of female subjects inserted their fingers into the anal or genitalcavities of the dolls; the pediatrician never did this.  Fifty-five percent ofthe children who did not receive genital examinations falsely showed eithergenital or anal touching when given the dolls.  Researchers have obtainedsimilar results in a study of four-year-old children (Bruck, Ceci &Francoeur, 1995).      The interviewprocedures used by Bruck and her colleagues also elicited a number of otherbehaviors that adults might misinterpret as sexual.  When the children weregiven a stethoscope and a spoon and asked to show what the doctor did or mightdo with these instruments, some children incorrectly showed that he used thestethoscope to examine their genitals and some children inserted the spoon intothe genital or anal openings or hit the doll's genitals.  A number of otherchildren showed aggressive behaviors with the dolls, hitting them with some ofthe props provided.      Some data suggestthat repeated exposure to the dolls may lead young children to fabricate highlyelaborate accounts of sexual abuse.  For example, after a third exposure in aperiod of a week to an anatomically correct doll, a non-abused three-year-oldchild reported to her father how her pediatrician had strangled her with arope, inserted a stick into her vagina and hammered an earscope into her anus(see Bruck et al, 1995).      Other researchershave reported similar results with the use of line drawings (Rawls, 1996) andwith the combined use of line drawings, dolls, and props (see Steward et al.,1996).  For example, in the Rawls study, five-year-old children played adress-up game with a male research assistant.  Four interviews were conductedover the next one to two weeks.  A body parts diagram (i.e. a line-drawing) wasintroduced into the second interview.  Rawls found that over the course of thefour interviews children became increasingly inaccurate:  many of the childrenfirst made errors in the second interview when they were asked closed-endedquestions about the body-parts diagram.  Although many of the errors seemedbenign, over a quarter of the total sample reported inappropriate adult-childtouching.  These results suggest that using body-parts diagrams could result ina number of false positive errors especially when children are repeatedly askedclose-ended questions.      The"sexualized" behaviors that the children demonstrated in the abovestudies do not necessarily reflect young children's sexual knowledge orexperiences but two other factors.  First, the types of questions and propsused in an interview (asking children to name body parts, including genitals,showing children anatomically detailed dolls and asking children to manipulatethese dolls) make children think that it is not only permissible but expectedthat they respond to the interviewers' questions using these same terms. Second, these props are interesting to young children, and they may insertfingers into cavities or show sexual acts because these are creative ways ofplaying with the dolls, especially if they are encouraged to do so by theiradult interviewers.      Finally, the use ofany types of props or photographs in interviews with young children producesunreliable reporting.  In laboratory studies it has been found that whenchildren are provided with a prop that was not present during the target eventthey are likely to report that they did use it (e.g., Gee & Pipe, 1995;Salmon, Bidrose & Pipe, 1995; Steward & Steward, 1996).  Similarly ifchildren are shown photographs and asked to select a suspect, they willcommonly select a picture even though the suspect is not in the photo line-up(King & Yuille, 1987; Parker & Carrazna, 1989).      The child witnessesin the Malcom case were interviewed with line drawings.  The police usedthese to determine the children's linguistic terms for "privateparts" (when the children did not know the names, these were provided bythe police).  In addition, they asked the children to refer to the linedrawings when they were questioning them about sexual abuse.  Similarprocedures were used with the dolls.  Sometimes the dolls and the line drawingswere used in the same interviews and children were repeatedly interviewed withthese instruments.  At times children were shown pictures of objects (e.g,dildoes or screwdrivers) and children reported that these had been used intheir abuse.  All of these techniques could result in inaccurate reports.      Without videotapes ofthe interactions it is impossible to determine the degree to which the childrenwere instructed in sexual manners with these dolls and props.  Butnevertheless, as reviewed above, even when interviewers do not show sexual actson the dolls, young children naively but falsely do show how they were touchedor abused.  The use of dolls and drawings seems to provide the children with anatmosphere in which they are encouraged to talk about "sexual"matters.  They are allowed to use words that are not permitted in other domainsand the interviewing methods may encourage them to come up with falseallegations.  Thus it is possible that the allegations made by the Malcom childwitnesses were a product of interviews with dolls and other similar materials.   Less InvasiveSuggestive Techniques:  Thinking, Imagining and Hearing      In order to getchildren to report or to remember an event, interviewers sometimes ask childrento first try to remember or pretend if a certain event occurred and then tocreate a mental picture of the event and think about its details.  Sometimeschildren are encouraged to think about events by "pretend" play withprops or with toys.  Although there are problems with using these techniqueswith people of all ages (see Ceci & Bruck, 1995; Lindsay & Read, 1994),there are particularly serious deleterious effects for young children who havefragile boundaries between reality and fantasy.  Young children sometimes havedifficulty distinguishing between memories of actual events and memories ofimagined events (e.g., Parker, 1995; Welch-Ross, 1995).  Thus, when youngchildren are asked to pretend or try to think about certain events, they maylater come to believe that these imagined activities actually did happen.  Thisis illustrated by the results of the following study.      Ceci and hiscolleagues (1994a, 1994b) examined the effects of repeatedly asking youngchildren to think about some event, creating mental images each time they didso.  Children were asked to think about events that according to their parentshad happened in the distant past (e.g., being punished for crossing the streetalone).  Children were also asked to think about fictitious events that,according to their parents, they never experienced (e.g., falling off a bike andgetting stitches).  In one of these studies, explicit memory inductionprocedures were used to encourage children to think about real and fictitiousevents. The same interviewer asked each child about four real and four falseevents for 11 consecutive weeks.  The interviewer told the child that theywould hear about something that had happened to them when they were little andthat they should try to make a picture of it in their head.  They should thinkabout what they were wearing, who they were with and how they felt at thetime.  With each session children increasingly assented to false events.      In another study,Ceci and colleagues found that when asked to think about false events (e.g, thechild's finger caught in a mousetrap) a significant number of children falselyassented to these events in the first interview.  Thus, when asked to thinkabout a non-event, false assents can occur during one interview.      The police oftenasked the Malcom child witnesses to think hard about alleged abusiveevents that the children claimed they could not remember.   "Thinkreal hard and see if you can remember how old he was the first time somethinghappened"  (“Chuck Morgan”, Feb. 4)   "Closeyour eyes, think really hard"  (Mickey, Feb. 4)   Krauseleft the room during Jennifer's interview so that she could think for a fewminutes (April 16)   Krausetold a non-divulging "Bertil" that it is hard to remember, but if he closes hiseyes and thinks really heard sometimes we are able to remember things that arestuffed down in our thinking.  Krause writes in her report, "I asked"Bertil" if he would close his eyes and think for me." (April 30)   From these examples, it isclear that when the children had problems producing allegations, the policeinterpreted these "problems with remembering" rather than with"not having anything to remember."  It is possible that theirsubsequent allegations emerged as a result of these suggestive interviewingtechniques that included "thinking" about events.      Sometimes suggestionscan be very subtly introduced into the child's environment and the child canincorporate this into his reports.  In a series of studies, Poole and Lindsay(1995, 1996) have shown how parents can suggest false events to theirchildren.  In their initial study (Poole & Lindsay, 1995), preschoolersplayed with "Mr. Science" for 16 minutes in a university laboratory. During this time, the child participated in four demonstrations (e.g, liftingcans with pulleys).  Four months later, the children's parents were mailed astory book that was specially constructed for each child.  It contained abiographical description of their child's visit to Mr. Science.  However, notall of the information was accurate; although the story described two of theexperiments that the child had seen, it also described two that the child hadnot seen.  Furthermore, each story finished with the following fabricatedaccount of what had happened when it was time to leave the laboratory:   MrScience wiped (child's name) hands and face with a wet-wipe.  The cloth gotclose to (child's name) mouth and tasted really yuckie.   The parents read the storyto their children three times.  When later interviewed by the experimenters,the children reported that they had participated in demonstrations that, inactuality, had only been mentioned in the stories read to them by theirparents.  When asked whether Mr. Science put anything "yuckie" intheir mouths, more than half of the children inaccurately replied"yes," and many of these children elaborated their "yes"answers.  Moreover, inaccurate reports of having something "yuckie"put in their mouths increased on repeated questioning.  When asked, "DidMr. Science put something yuckie in your mouth or did your Mom just read youthis in a story?" 71% of the children said that it really happened.  Thechildren made these claims even though they had been previously warned thatsome of the things in the story had not happened and they had been trained tosay "no" to non-experienced events.      This studydemonstrates how subtle suggestions can influence children's inaccuratereporting of non-events that, if pursued in follow-up questioning by aninterviewer who suspected something sexual had occurred, could lead to a sexualinterpretation.  The study also along with several others also illustratespreschoolers' susceptibility to "source monitoring" confusions.  Thatis, preschoolers have particular difficulty in identifying the source of thesuggestion.  That is, the children confused their parent reading them thesuggestion with their experiencing the suggestion; they incorrectly answerquestions such as:  "Did that really happen or did you mom just tell youabout it?" or, "Did that really happen of did you just imagineit?"      Poole and Lindsay(1996) recently replicated these findings with children from a wider age range(three- to eight-year-olds).  The findings were similar across ages with oneexception:  the source monitoring procedures enabled the older but not theyounger children to reduce the rate at which they reported having experiencethe suggested events.  That is when asked, "Did Mr. Science really putsomething yuckie in your mouth or did your Mom just read you this in astory?" the older children recanted their previous claims and said thattheir mom had told them.      The results of the Poole and Lindsay studies suggest that it is possible for children to incorporatesuggestions that are delivered by their parents.  These suggestions need not bevery salient but could be buried in a mass of other details some of which areactually true.  But the results also suggest the importance of asking childrensource monitoring questions (e.g., Did you see this or did you hear about it?)when they make allegations of a serious nature.  The major problem of course isthat, for the most part, younger children will not be able to correctly answerthese questions, although older children may be more successful.      In the Malcom case, because the police seldom asked the children to be sure that they wereonly reporting what really happened (see below for a discussion of theirprocedure), we will never know whether the children were actually reportingtheir own experiences or whether their reports were based on what they had beentold by their parents, therapists, investigators and even peers (see below). Some of the children when directly asked do say where the information camefrom.   --”Chuck” knew that thefirst time something had happened right before Thanksgiving was because his(younger) brother had told him (Feb. 4 interview)      In the June 2recantation interview, “Chuck” reported the sources of some of his falsereports: he drew the picture of a round bulb because his little sister has onelike that; he drew a picture of a dildo because Mr. “Logan” had magazines withsimilar pictures.  But most importantly, “Chuck” seems to remember hissuggesters and suggestions.  According to Krause's report, “Chuck” said"Lori, she's the one that asked the most questions.  Whenever I go overthere she asks me to write something down that Lynn did, and I can't think ofanything else so I to make up stuff.  And people are making me make stuff upand it's making me really nervous." (p. 18).  In the same interview he hassimilar comments about Mr. “Logan”, who asks questions too and he as to make thingsup because "I don't know anything else."  “Chuck” also reported thathis mother had asked him the most questions.  Later in the same interview, heclaimed that his mother gave him the idea for claiming that other adults hadbeen involved in the abuse.   --Mickey (Feb 4) reportedthat Kirk stuck his potty in "Bertil"'s butt.  It happened in the hallway ofKirk's house and Lynn was sitting at the table to talking to somebody.  Mickeythen said ""Bertil" told me this.  I didn't see it cause I wasn't there."   Based on the scientificliterature, one would predict that based on their ages, the source monitoringjudgments of these children might be quite accurate.  And if this is so, thenit highlights how these children were being persistently questioned to thepoint of discomfort and how they incorporated unexperienced events into theirfalse reports.      However, thedifficulties that younger children might have on this task is reflected in“James”'s (five-year-old) interview on April 23 when he reported,   "Lynn killed a rabbit and I think she held it up in front of our face."  Krause askedhim how he knew that and he stated, "My brother told my mom and she toldme."    Perhaps this report isbased on “Chuck”'s comments in the June 2 interview, "Like Kirk would killa rabbit for my dad and so he could feed 'em to the dogs."   Peer Pressure      The effects ofletting children know that their friends have "already told" is amuch less investigated area in the field of children's testimonial research. Certainly, the common wisdom is that a child will go along with a peer group;but will a child provide an inaccurate response just so he or she can be one ofthe crowd?  The results of three studies suggest that the answer is"yes."      First, Binet (1900)found that children will change their answers to be consistent with those oftheir peer group even when it is clear that the answer is inaccurate.  Second,children who were absent from their classroom when a special event occurredlater indicated to their interviewers that they had been present.  One presumesthat these children gave false reports so that they would feel like they werepart of the same group as their friends who did participate in the specialevent.  Importantly, this study shows how the peer group's actual experiencesin an event can lead non-participants to fabricate reports of the event.      Finally, Pynoos andNader (1989) studied people's recollections of a sniper attack.  On February 24, 1984, from a second story window across the street, a sniper shot repeatedrounds of ammunition at children on an elementary school playground.  Scores ofchildren were pinned under gunfire, many were injured, and one child and apasserby were killed.  Roughly l0% of the student body, 113 children, wereinterviewed 6 to l6 weeks later.  Each child was asked to freely recall theexperience and then to respond to specific questions.  Some of those childrenwho were interviewed were not at the school during the shooting, includingthose already on the way home or on vacation.  Yet, even the non-witnesses had"memories":   "Onegirl initially said that she was at the school gate nearest the sniper when theshooting began.  In truth she was not only out of the line of fire, she washalf a block away.  A boy who had been away on vacation said that he had beenon his way to the school, had seen someone lying on the ground, had heard theshots, and then turned back.  In actuality, a police barricade prevented anyonefrom approaching the block around the school." (p. 238)   One assumes that childrenheard about the event from their peers who were present during the sniperattack and they incorporated these reports into their own memories.      In the Malcom case, there are different types of instances in which peer pressure was used. First police officers told children that other children had told them abouttouching.   --Krause told Jennifer: We have talked to the other boys who said other things occurred.  Later in theinterview she says that she is concerned with what the boys are saying and shewants Jennifer to be safe. (April 16)   --Krause told "Bertil":"Some of the children I talked to were children whose private parts gottouched by somebody bigger than them (April 30)        Second, parents usedchildren to get other children to talk.  Sometimes it appears that the childrenwere told what their friends had said.  As a result of these techniques, itseems that children began to make allegations that contained many details foundin other children's allegations.  The degree to which such techniques could setup an atmosphere of competition is revealed in the following examples:   Benjamin: "Did “Chuck” tell you about Lynn and Kirk touching us?" "“Chuck” didn't tell before I told.  I told the first." (interviewwith Krause, May 2)   “Chuck”: (Krause asks), When I asked him what gave him the idea to draw that, “Chuck”stated, "Well there was this one Mickey drew that looked sorta like that,and they showed it to me and asked me if I could draw it better.  I just makethe diamond up and then added that end, and Mickey said that's what it lookedlike, but I never saw it." (“Chuck” explaining to Krause why he made up afalse drawing, June 2)        One of the moreglaring examples of the use of peer pressure occurred on April 12 when Gail“Morgan” and her children went over to the “Logan” house with the “Mason”family.  “Chuck” had denied that Lynn had been involved in the abuse.  However,other children were beginning to "open up."  At the “Logan” house, after learning that Lynn had done sexual things to all of the children, Gail“Morgan” called “Chuck” into the house and told him what Mickey had said, andagain “Chuck” denied that Lynn had abused him.  Next, Mickey was called intothe room and told that “Chuck” was having a hard time remembering.  Mickeysaid, "You were there “Chuck”."  At that point, “Chuck” opened up andbegan to draw pictures about the alleged abuse (see above example for “Chuck”'smemory of this interaction).  At this time all the children were around and hadaccess to these events.  During that day it appears that "all the childrenindependently asserted that Lynn would insert BB's into their urethas." Two of the “Morgan” children began relating incidents involving Lynn and thechildren urinating and defecating on each other. [31]  In that these events were never corroborated and later recanted by “Chuck”, itseems likely that the children were making allegations to be like theirfriends.  The social context in which the allegations about Lynn first emergedthus raises doubt about the reliability of the claims that she sexually abusedany of the children.   Combinations ofSuggestive Interviewing Techniques      The studies discussedabove have predominantly examined the effect of using a single suggestivetechnique on the accuracy of children's reports.  However, when a number oftechniques are combined in one interview, as was the case with the Malcom child witnesses, these procedures have detrimental effects much larger thanmight be expected.  Two recent studies support this conclusion.      The first study(Bruck, Ceci, & Hembrooke, in press b) examined the impact of repeatedlyinterviewing children with a combination of suggestive procedures.  Preschoolchildren were asked to tell about two true events and about two false events. Each child participated in one of the true events that was staged at theirschool.  This involved the child helping a visitor in the school who hadtripped and hurt her ankle.  The second true event varied across all thechildren:  It involved an actual recent incident where the child had beenpunished by the teacher or the parent.  One of the false events involvedhelping a lady find her monkey who had become lost in the park.  The secondfalse event involved witnessing a man steal food from the daycare.  Unlike theother events, this false event is a criminal act and thus there are potentiallyserious implications of assenting to such scenarios.      Children wereinterviewed on five different occasions about the four events.  In the firstinterview, the children were asked if the event had happened and if so toprovide as many details as possible about its occurrence.  The next threeinterviews included a combination of suggestive interviewing techniques thathave been shown to increase children's assents to false events.  Thesetechniques included: the use of peer pressure ("Megan and Shonda werethere and they told me you were there, too"), visualization techniques(try to think about what might have happened), repeating (mis)information, andproviding selective reinforcement ("It's so wonderful that there are suchnice kids like yourself to help people out when they need it.  You know it'sreally important to help people out.").  The same interviewer questionedthe children for the first four interviews.  In the fifth interview, a newinterviewer questioned each child about each event in a non-suggestive manner.      Across the fiveinterviews, all children consistently assented to the true-helping event. However, children were at first reluctant to talk about the true-punishmentevent; many of the children denied that the punishment had occurred.  Withrepeated suggestive interviews, the children agreed that the punishment hadoccurred.  Similar patterns of disclosure occurred for the false events; thatis, children initially denied the false events but with repeated suggestiveinterviews they began to assent to these events.  By the third interview, mostchildren had assented to all true and false events.  This pattern continued tothe end of the experiment.  Thus the combination of suggestive techniques (thatwere also used with the Malcom children) produced high assent rates fortrue and false events, some of which were of a criminal act.      In addition withrepeated suggestive interviews, the children's narratives became moreembellished and detailed so that by the third interview, it was impossible todifferentiate the true from the false narratives.  Generally, they containedthe same number of spontaneous statements, details, adjectives, emotionalterms, and dialogue statements.  Although it was only suggested to the childrenthat they might have seen a theft, many of those who did assent falsely,created narratives in which they were participants.  Children reported chasingthe thief, being chased by the thief, hitting the thief and similar types ofactions.  Finally, when children were repeatedly interviewed about true events(e.g, helping a woman who fell), their stories contained highly inaccuratestatements (e.g., She had to go to the hospital; A man came and helped her;There was lots of bleeding").  Therefore, it appears that if children areinterviewed with a combination of suggestive techniques, many will assent toand create complex narratives of false negative events and add inaccuratedetails to true events.      This study alsoillustrate both the beneficial as well as baleful consequences of usingsuggestive techniques to elicit reports from young children.  For children whomay not want to talk about unpleasant but true events (the punishment), the useof repeated interviews with suggestive components did prompt them to correctlyassent to previously denied events.  However, the use of these very sametechniques promoted children to assent to events that never occurred.  As aresult, when suggestive techniques are used, it makes it impossible todetermine whether the children's reports are true or false.      A study by Garven,Wood, Shaw, & Malpass (1997), shows how a combination of suggestiveinterviewing techniques that were used in the McMartin case can compromisethe accuracy of children's reports in one short 10-minute interview.  In thisstudy, a stranger visited children at their daycare and read them a story.  Oneweek later, children (between the ages of three and six) were interviewed aboutthe visit.  Half the children were asked leading questions (e.g, "DidManny break a toy?").  The other children were also asked the leadingquestions but in addition other suggestive techniques were used including peerpressure ("The other kids said that . . ."), positive consequences(giving the child praise for certain answers and telling him that he is a goodhelper), negative consequences (telling the child that this was not theappropriate answer, and reasking the question), enjoinders to think about it(children were asked to think hard about questions they said no to) andenjoinders to speculate (asking children to pretend or to tell what mighthaving happened).  Children in the combined technique condition inaccuratelyanswered approximately 60% of the questions compared to 17% of the children whowere just asked leading questions.  The children in the combined suggestiongroup claimed that Manny said a bad word, that he threw a crayon, that he brokea toy, that he stole a pen, that he tore a book and that he bumped theteacher.  Another important result of this study is that over time the childrenin the combined suggestion condition came to make more false claims as theinterview progressed: that is within a short five- to 10-minute interview,children made more false claims in the second half than in the first half ofthe interview.      Taken together thesestudies suggest that with combined suggestive influences, young children canquickly come to make false reports that involve harm and wrong doing.  Withrepeated interviewing, not only do false assents rise, but most importantly thechildren's false narratives have the characteristics of true narratives.  Thispattern of results explains another common finding of the research literature: often professionals (e.g., law enforcement personnel, mental healthprofessionals) cannot differentiate children whose reports are the product ofsuggestive interviewing techniques from children whose reports are actuallytrue (see e.g, Leichtman & Ceci, 1995; Ceci et al., 1994a, 1995b).      A review of thepolice investigative reports in the Malcom case reveals that thechildren were subjected to a number of different suggestive techniques and aswill be argued below, perhaps the reports probably greatly underestimate thenature of the suggestive interrogations.      For example, inMickey's February 4 interview the following suggestive influences could bediscerned from the report:   --The child was askedsuggestive leading questions before providing any information about abuse("Mickey was asked if he could remember why he wasn't able to tell anyoneabout what had happened to him"; Mickey was asked if he could recall howold he was when this first happened to him; We need to know what Kirk did sothe doctor would know if he could help him) --There were two policeofficers present during the interview --The child was shown aline drawing and asked to name the different body parts (including"butt" and "potty") --The interviewer createdan atmosphere of accusation ("We need to know what Kirk did so the doctorwould know if he could help him") --The interviewer askedthe child to think real hard (Krause asked Mickey to close his eyes and tothink) --The child was shownpictures of two different screwdrivers and asked which one Kirk used (note theproblems of using cues or pictures and also not telling the child that it mightnot be either one) --Anatomically detaileddolls were used to demonstrate the abuse        “James”'s April 23interview is another example of how interviewers used a combination ofsuggestive interviewing techniques which included: --Krause created anatmosphere of accusation:  "I indicated to “James” that part of my job wasto help children and that sometimes I needed children to help me. I indicatedto “James” that was why I wanted to talk to him because I needed him to help meby talking to me." --Krause told “James” thatshe was a policeman --Krause used linedrawings to get “James” to name specific body parts (boobies, bottom, penis andwenis) --Krause used anatomicallydetailed dolls   Other examples of thecombination of suggestive interviewing techniques are provided later in theanalysis of interviews with “Chuck” and Jennifer.   Suggestive Questioningvs. Forced Confessions      The interviewingmethods described above do at times lead children to make false claims about arange of events.  Children's inaccurate responses may reflect a socialmechanism, they provide false answers to please their interviewers.  Othertimes, however, the responses reflect more cognitive factors; children come tobelieve that their false responses are actually true.  There are a number ofstudies that show that sometimes the types of suggestive techniques that wereused in the interviews in the Malcom case result in children actuallycoming to falsely believe that they were participants in nonevents and toforgetting that these had ever been suggested to them  (e.g, Ceci et al, 1994a,b ; Poole & Lindsay, 1995, 1997).      Although theinterviewing procedures that have been described so far seem "mild"or "nonintrusive," at time these in fact can be viewed as verycoercive, leading children to knowingly make false reports.  In these morecoercive situations, the children make false reports not to please their adultinterviewers, but to escape an aversive situation.  Sometimes, their reportscan be viewed as "forced confessions."  In these situations, childrencan sometimes remember these questioning procedures because they were sonegative and thus so salient.  Thus, as noted above, “Chuck” remembers   "Lori,she's the one that asked the most questions.  Whenever I go over there she asksme to write something down that Lynn did, and I can't think of anything else soI to make up stuff.  And people are making me make stuff up and it's making mereally nervous." (p. 18)    Inthe same interview he has similar comments about Mr. “Logan” who asks questionstoo and he has to make things up because "I don't know anythingelse." (June 2 interview)        One technique thatpromotes false confessions is prolonging interviews until the desiredinformation is obtained.  It is not clear if the police did this deliberatelyin their interviews with the Malcom children, but it frequently noted atthe end of most reports that the children were tired or restless.   "Atthe point child was getting tired of talking so the interview wasterminated" (“James” 2-02-87)   Mickeywas becoming restless at this time so the interview was terminated (2-04-87)   "Bertil"said he wanted his mom and he was getting tired of talking ((2-19-87)   “Chuck”then asked me when we were going to be through and was showing obvious signs ofbeing tired so the interview was terminated. (Note this interview lasted 75minutes) (4-13-87)   Mickeysaid he was getting tired, so the interview was terminated (It had lastedalmost 90 minutes) (4-4-87).   ""Bertil"began yawning and closing his eyes and laid his head down on the table."(April 30)   “Chuck”'s recantationinterview on June 2 lasted for many hours, at the end it is noted   "Itwas obvious at that time that “Chuck” was getting tired and we were also,therefore I indicated to “Chuck” that I only wanted to ask him one morequestion. . . ."  The interview continued and then later it was noted"Because of the lateness of the hour in the afternoon, and because thethree of us were really becoming mentally tired, I indicated to “Chuck” that. .. ."        There are severalconcerns about these conditions.  First, the children all seemed to want to endthese interviews.  Previous research indicates that when children want aninterview to end, they often increase the quantity of false statements (Pettit,et. al.).  It is possible therefore that the children in the Malcom caseincreased false allegations as the interview wore on because they wanted it toend.  Second, because these interviews were very long and tiring for thechildren, this could have increased their cognitive fatigue.  In other words,the children might have provided false answers because they were no longerpaying attention.      When the policeinterviewed Jennifer, they seemed to use other strategies that are more akin tothe strategies that police use to elicit false confessions from suspectedcriminals.  For example, despite her mother's protests, Lynn was not allowed inthe room, nor was she even allowed to view the interviews.  In some of theinterviews, the police had threatened to remove Jennifer from her mother'scare, and in later interviews, she had already been removed from her mother'shome.  These are clearly distressful conditions for a young child.  Accordingto Jennifer's later memory of these interviews, [32] she was told that if she just told the truth, she could see her mother.  In atleast one of the interviews, it seemed that the questioning was so stressfulthat Jennifer cried. [33]  Instead of stopping the interview (a recommended procedure), Krause continuedquestioning Jennifer.  In addition, Jennifer was told that other children hadtold, increasing the pressure on her to provide false testimony.  Finally,after several interviews, on April 20, during a three-hour interview, Jenniferfinally assented to her mother abusing her.      Almost 10 yearslater, at the age of 18, Jennifer recanted her childhood allegations.  Sheclaimed that she remembered that her mother had never abused her and that shewould have remembered if that had happened.  According to her hazyrecollections of the allegations, she claimed that Sharon Krause would sit andstare at her, tell her that she was lying, and tell her that she could see hermother if she told the truth.  She remembered that when she denied any abuse,they kept challenging her and repeating questions.  Jennifer stated that shewas a shy child who liked to make other people happy.  She thought that if shetold them what they wanted, they would leave her alone.  After the trial,Jennifer remembered telling her father that the abuse had never happened. JimMalcom reacted negatively to this statement and thus she did not pursue it. Jennifer claimed that she was brainwashed to believe her mother had abused herbut she always knew it was never true.      How reliable isJennifer's recantation of this forced confession?  Could Jennifer forget theabuse that actually happened and come to believe that she was brainwashed intomaking a false confession at that time?  Or does she accurately remember thatthere was no abuse and that she was forced into making false allegations.  Itis unlikely that she would have forgotten the actual abuse given the fact thatshe remembered being raped by a baby-sitter when she was younger, and given thefact that the alleged abuse was discussed throughout her life.      The major evidencethat we have to evaluate Jennifer's adult statements come from other caseswhere children the same age as Jennifer were interviewed in similar manners andcame to make allegations of abuse against their parents.  In all cases likeLynn Malcom's there were no eyewitnesses and the children had never made anyallegations of abuse prior to very coercive suggestive questioning by thepolice.  In all cases like Lynn Malcom's, these children later came to recanttheir allegations saying that their parents would never do those things, thatthey remember the coercive interviewing, and finally they just had to give upand falsely "say yes it happened."  Based on the case data (seeNathan & Snedeker, 1996; Ceci & Bruck, 1995), it is highly possiblethat Jennifer's recantation is accurate.                   TheQuality of Written Reports      The failure to haveaudio- or video-taped records of any of the interviews with the Malcom witnesses (except the one between Ben and his mother) makes it impossible todetermine the accuracy of the children's statements.  Summaries of interviews(such as those provided by the Police Department) do not substitute for missingoriginal interviews because written summaries are subject to a number ofdistortions that can include omission of important details, inclusion ofinaccurate details, and most importantly the absence of a verbatim record ofeach utterance produced in the interview.      It is a well documentedfact in the psycholinguistic literature that when asked to recallconversations, most adults may recall the gist (the major ideas, the content),but they cannot recall the exact words used, nor the sequences of interactionsbetween speakers.  This linguistic information rapidly fades from memory,minutes after the interactions have occurred (see Rayner & Pollatsek, 1990,for a review).  In a recently completed experiment in our laboratory (Bruck,Ceci & Francoeur, 1997), we videotaped mothers interviews with theirfour-year-old children concerning a play activity that had just occurred. Three days later, we asked mothers for a report about this conversation.  Themothers could not remember much of the actual content of the interview,omitting many details that had been discussed.  Most importantly, the motherswere particularly inaccurate about several aspects of their conversation:  theycould not remember who said what (e.g, they could not remember if theysuggested that an activity had occurred or if the child had spontaneouslymentioned the activity).  They could not remember the types of questions theyhad asked their children (e.g., they could not remember if they used anopen-ended question or a series of leading questions to obtain a piece of information). In other words, although parents might remember that they learned that astrange man came into the room when the child was playing, they could notremember if the child spontaneously gave them this information, or if theyobtained it through a sequence of repeated leading questions which the childassented to with monosyllabic utterances.  To summarize, although they couldaccurately remember parts of the general content of the conversation, theycould not remember how or whether they questioned their child.      We have also justcompleted a similar study with mental health trainees who were asked tointerview four children about an event.  Later the interviewers' memories fortwo of the conversations were tested.  The mental health trainees showed thesame pattern as the parents.  They could not remember the structure of theconversations.  In addition, these trainees mixed up which of the four childrensaid what.  That is they often attributed the actual report of Child A to ChildB.      The ability toremember the structure of conversations is particularly important wheninterviewing young child witnesses because it is known that young children maynot provide much information in response to open-ended questions (tell me whathappened; what happened when you went to Lynn's house).  Sometimes they do notprovide the information because there is nothing to tell, other times it isbecause they need some guidance from adults.  Thus, adults often revert to anumber of suggestive techniques to elicit the information.  For example, theymay have to use specific and leading questions (Did Kirk use a screwdriver),stereotype induction (Kirk does bad things, did he do bad things with you?);guided imagery (well think real hard about whether Kirk used a screwdriver withyou); positive and negative consequences (you would really help the police ifyou told us about how Kirk hurt the children); the use of peer pressure (Ben'sMom said that Ben said you were there) as well as other techniques mentionedabove.  Of course, as already reviewed, these techniques raise the risk ofinaccurate reports.  And for this reason, it is important that the exact wordsthat were used to elicit children's reports be included in official documents.      It is also the case,that the gist of previous interviews may be inaccurately summarized in laterreports due to certain biases or misperceptions of the interviewer.  Usuallynotes only contain bits of information that the investigator thinks areimportant.  If the investigator has a bias that the child was sexually abused,this could color his interpretations of what the child said or did; and it isthis interpretation that appears in the summary rather than a factual accountof what transpired.      These observationspoint out the importance of ensuring electronic copies of interviews withchildren. They also raise the issue of the accuracy and completeness of thepolice reports in the Malcom case.      A review of theUtility Reports leads to a first impression that the police officers werescrupulous in taking notes and recording the verbatim aspects of theinterview.  Sometimes, two investigators were present so that one could talknotes.  Some of the reports are extremely lengthy; sometimes they include pagesand pages of seemingly mundane conversations between the child and theinvestigator.  Quotation marks are used which supposedly indicate the verbatimnature of the reports.  However, a closer inspection raises serious concernsabout the completeness of the reports (that is, was everything included), theaccuracy (how accurately was the information reported), and the verbatim natureof the reports.      First, some of thereports are extremely detailed (for example the report of “Chuck”'s interviewon June 2) and sometimes written in a "I said . . . He said"fashion.  However, it would be extremely difficult if not impossible to keepsuch detailed notes and at the same time to conduct a coherent interview.  Thatis, if Krause had written down every single word (or even idea) that was in herreports, she would have quickly lost the child's attention and cooperation. She would have had to spend so much time writing down what she said and whatthe child said that she could not possibly have resources to think aboutsensible questions or even what the child had previously said.  Therefore, onemust conclude that much of what is in the report is her elaboratereconstruction of the interview.  But as noted above, such reconstructions aredifficult if not impossible for most adults.  That is although Krause mightremember much of the content (which could have been prompted by notes), she maynot have recorded everything that was said (especially when the child wasdenying) and certainly not the conversational structure.  For example thefollowing is one paragraph from this 25-page interview:   "Iindicated to “Chuck” that when things like this happened, like what he and theother children had told me about Lynn, really the only people who knew exactlywhat happened were Lynn and the children who were there when it happened.  Itold “Chuck” that was the reason that I was not able to tell the judge and thejury exactly what the children had told me happened because I wasn't there andI really didn't know.  I told “Chuck” that it would be his job to tell the juryand the judge exactly what had happened but the most important thing aboutbeing in the court room and being in this trial was that we all had to tell thetruth.  I told “Chuck” that was one place where we could not tell things thatwere not true.  I also talked to him about having to raise our hands and swearto tell the truth to the judge and nothing but the truth.  I told “Chuck” thatsometimes when grown-up lied in trial and the judge knew . . . etc."        This passage and manyothers raise the concern of the accuracy of this paragraph.  There are a numberof studies that indicate that adults cannot remember this number of detailsfrom conversations (e.g., Kintsch & Bates, 1977; Stafford, Burggraf &Sharkey, 1987).  Unfortunately, Krause destroyed all interview notes afterwriting her reports.  It is not known the amount of delay between theinterviews and the reports, but as shown in our studies with the parents, evena three-day delay can have significant impacts on memory.      There are a number ofother clues from the interviews that the reports are not accurate in manyrespects.  First, there may be misreporting in terms of the actual words thatthe children used.  It is my opinion that Krause sometimes put her own wordsinto the mouths of the children.  For example the following verbatim utterancesare reported for each of the children in four different interviews:   “Chuck”: "It was too many times to remember " (February 4)   Jennifer: Kirk touches me " too many times to remember " (February 6)   Jennifer: " It's too many times to remember " (April 20)   “James”: "Lynn does it too many times for me to remember ' (April 23)   This one small example isnot trivial.  It seems unusual that three different children would use theexact words to express the same idea.  It suggests that either Krause wasconfused about which children were saying what, or else she was actuallyreconstructing the conversation using her own vocabulary.  This would bepermissible except for the fact that quotations are put around many of thechildren's responses giving the impression that these were their own words.  Ingeneral, the use of quotations in these reports is very confusing and not atall clear whether these were meant to signify that the child actually saidthese things or if the interviewer said these things.  For example, it is notclear what part of the following quoted statement is supposed to reflect thechild's words or the interviewer's words.   "Bertil": He asked me if I would "not say anything because it was hard for him tothink about what color he needed to use next." (April 30).   Mickey: He replied "She said we can't wear them if we're gonna do this.  She saidtake them off unless you want to get stung with the paralyzer gun." (April14) (NB.Could Nelson accurately write down everything this child was saying?  It ispossible, but it would be difficult to run a competent interview and not letthe child be distracted by the amount of writing)   “Chuck”: When “Chuck” is first asked about one of his fictitious pictures, he claimsthat he got mixed up and it was "my little sister's snot sucker"(June 2)   Laterin the same interview: "Mylittle sister has one of those things and my mother sucks the bacteria out ofher nose and that's what gave me the idea" --(NB,the use of the word "bacteria" is unusual for a 7-year-old child andis inconsistent with the previous phrase of: snot sucker")   These examples raiseconcerns about the accuracy of utterances that are surrounded by quotationmarks.  They raise the concern that in many of the cases these were not reallythe child's or perhaps even the interviewers' words.      There is also aconcern that the reports are not complete and that important details areomitted.  For example, at the end of “Chuck”'s interview on June 2, Krause wrotethat she told Mrs. “Morgan” "during my interview with Ben describing toyshe had with him, Ben had indicated that he got the toys for telling somuch."  In the report of this interview that took place on May 20 withBen, Krause provides a lengthy description of how Ben talked and played withthe toys he had brought in with him, information that is essentiallyuninformative.  But there is no mention of his comment that he got the toysfor telling so much .  There are several interpretations of this apparentomission.  First, perhaps the original May 20 report was accurate and Ben neversaid that he got toys for telling so much but rather Krause's memory waserroneous when she told Gail “Morgan” about Ben's comments.  A secondexplanation is that Krause did remember what Ben said but did not include it inthe report because she did not think that it was important.  Of course, thishighlights the problem with such reports, they cannot include everything that occurred and often events or pieces of conversation that were not thoughtimportant at the time were omitted.  Third, it is possible that Krause editedthis comment from the report because she was afraid that it would begin to castsuspicion on the case, but when “Chuck” began to recant (see below), perhapsKrause could not longer contain the damage and she made it appear to Mrs.“Morgan” that she had suspicions all along.      Not only does itappear as though there may be parts of conversations that are missing fromreports, but it also seems that there are some interviews that are neverdocumented as Utility Reports.  The following interviews were noted in theInterview and Contact Summary but were not found in the Utility Reports. --April 21 interview with“Chuck Morgan” --April 23 interview with“Mark Mason” --April 25 interview with"Bertil Swanson" --May 29 interview withJennifer It is unfortunate thatthese interviews are missing, they could contain important information thatwould help in evaluating the reliability of these children's statements      Finally, anexamination of Nelson's April 16 search warrant raises further concerns aboutthe police's accurate reconstruction of the interviews.  Nelson included in theaffidavit, details of the April 14 interview with “Mark Mason”.  Based on theUtility Report [34] ,Krause was present during this interview.      According to the affidavit ,during this interview Mickey claimed that: --Lynn took picture ofchildren in sexual acts --The camera was black --Mickey described thepictures as being "like sick pictures of us, what she makes us do." --The pictures were keptin red boxes in Lynn's room --Mickey also drew apicture . . . (that) "appears to be sexual toys and/or aids commonlyreferred to as "dildoes, simulated penises or vibrators" --Lynn put a dirty speardown their throat --Lynn spied on them witha small telescope. None of these details areincluded in the April 14 Utility Report.  The discrepancy between the detailsin the April 16 affidavit and the more detailed Utility report raises concernsabout the accuracy of either or both documents.      As a result of theseconcerns, it is difficult to determine exactly how these children werequestioned by the police.  It is impossible to determine exactly what thechildren said in these interviews and what the police said to them.  Morespecifically, the absence of such crucial evidence, along with the suspicionthat there may be many inaccuracies in the reconstructions of these interviews,makes it impossible to determine if the children really did accuse Lynn ofabuse and if they did make accusations it is impossible to determine to degreeto which these were a product of various suggestive interviewing techniques. There is enough available evidence, however, to determine that the police diduse a number of these techniques.  As a result, the reports could reflect anunderestimation of the suggestiveness of the interviews. Detailed Analyses ofDisclosures of Child Witnesses in the Malcom Case      In this last section,I review and provide additional details of the interviews with four children inthe case:  “Brian Logan”, “Chuck Morgan”, Jennifer Malcom, and Kirk Malcom. The testimony of Benjamin is important because he was the first child to makeallegations; other children's subsequent allegations were quite similar to thosemade by Benjamin.  The testimony of “Chuck Morgan” is important because “Chuck”eventually recanted most if not all of his allegations many of which were alsomade by other children.  Because “Chuck” recanted these allegations, then onecould conclude that the allegations of the other children were also false. Jennifer Malcom was a key witness because she made allegations against her ownmother.  Therefore it is important to examine how these evolved.  Kirk Malcomwas the oldest of the child witnesses.  Although there is little research onthe reliability of children's reports of this age level, nevertheless ananalysis of his interviews raises further concerns about the interviewingmethods and the biased nature of the interviews conducted in this case.   “Brian Logan”      There are fourimportant characteristics that must be considered in evaluating this child'stestimony.      First, it does notappear that Benjamin made any allegations in the first interviews with thepolice or with his therapist.  The allegations seem to be reported though hismother Lori “Logan”.   --On January 30, in thefirst police interview, it was noted, "even though Lori was present duringmost of our interview, Ben was very reluctant to answer my questions and onsome occasions did not answer me at all." [35]  When Lori was present it was agreed that "Ben would whisper the answers tomy questions to his mother and she would relate the answers to me . . . Loribegan talking of the things Kirk has done to the kids."  Based on thisinterview, it is impossible to determine if Ben said anything that wasspontaneous or whether his allegations were responses to suggestive questionsand whether they simply mirrored what his mother was saying about the"things Kirk had done to the kids."  In the next interview on February 2, 1987, [36] Benjamin only giggled when Nelson asked questions.  This interview wasterminated after 15 minutes.   --It took Benjamin foursessions with Gladyschild before he talked about abuse. [37]        Second, the motherLori “Logan” appears to be a biased interviewer.  This is important because sheelicited the first allegation from Benjamin because she had prior suspicionsthat maybe Kirk had abused children.  Lori seemed ready to believe anythingthat the children said regardless of the credibility of their reports. According to “Chuck Morgan”, Lori repeatedly questioned the children until theyjust made things up. [38]  When confronted with “Chuck Morgan”'s recantation, rather than consider theevidence, Lori's response was to call “Chuck” "the worst liar in theneighborhood." [39]  Finally, Lori bought her child toys so that he would make allegations [40]      Third, it is possiblethat Benjamin's initial allegations were the result of his exposure to sexualmaterials that were present in the “Logan” household.  Lynn claimed, latercorroborated by Jennifer, [41] thatthe children watched a videotape of adults having sexual intercourse and ofbabies being born.  When “Chuck” drew pictures of instruments of Lynn's torture, Mr. “Logan” had available an adult magazine with pictures of sexual aids. [42]      Fourth, many ofBenjamin's claims were fantastic, uncorroborated, and sometimes recanted by“Chuck Morgan”.  Benjamin told his therapist (who believed him) that Lynn andKirk killed six people.  He claimed that Lynn's roommate, Donna, was involvedand assaulted and killed children. [43]  When later interviewed by Krause (on May 20) he clung to these claims, despiteKrause's warning to tell the truth, "I saw it, that's how I know."      None of this is tosay that nothing may have happened to Ben, it is possible that he wasindeed molested.  But given the context in which the allegations emerged, thelack of physical evidence, and the later uncorroborated or recantedallegations, there is more than a reasonable suspicion that this child'stestimony was the product of suggestive interviewing techniques.  BecauseBenjamin's allegations were the basis for all future allegations of other childwitnesses (he was the first to claim that Lynn was involved in the abuse), thenthe reliability of these other allegations must also be questioned.   “Chuck Morgan”      “Chuck”'s disclosuresfollow the pattern discussed at the beginning of this document:  he initiallydenied that Kirk abused him and denied that Lynn abused him, but with repeatedinterviews, he disclosed, and finally recanted most of the previousallegations.  His allegations about Lynn will be the focus of this section.      When first asked byhis mother (approximately April 6), “Chuck” denied that Lynn was involved inthe abuse.  He continued to make these denials until April 12, when Mickeychallenged him at the “Logan” house.  “Chuck” then assented and drew picturesof the instruments used during the abuse.  The next day, he was interviewed bythe police about the allegations and pictures.  These included the followingclaims:  Lynn inserted various instruments into the children's rectums(including dildoes, bamboo tubes, and nozzles, but there is no mention ofscrewdrivers ); Lynn drugged them; Lynn showed them pornographic material; Lynn engaged the children in multiple types of sexual acts.      There are indicationsfrom the "interview and contact summary" that by the end of April thepolice knew that there might be problems with “Chuck”'s testimony.   April21:  Krause interviewed “Chuck Morgan” for a short time only (there is noutility report for this interview)   April22:  Krause received a phone call from Gail “Morgan”.  “Chuck” told his motherthat he wanted to talk to Kirk and also to Krause privately.  Krause talked to“Chuck” on the phone.  He wants to know how Kirk was doing because he wasworried about him.   May19:  Krause received a phone call from Gail “Morgan”  "I want to schedulethe appointment for these boys now so I don't have to change my schedulearound".  She sounded upset.   May22:  Krause made phone contact with Gail “Morgan”.  "She and Lori had along conversation."  She was short in her conversation with Krause. "You don't believe her kids."   June1:  Krause called Gail about appointment with “Chuck” and “Niel”   She said the boys told herthat Lynn told them "she was born with Satan in her heart."  She saidshe had talked to a therapist who was experienced in this.  She told her thatkids don't lie about this.      On June 2, “Chuck”was interviewed by Krause and by Nelson.  The interview began at 11:25 and ended after 4:00 PM (with a break for lunch).  When I first read this interview,I was struck by how its format differed so radically from the previousinterviews in this case.  For an unexplained reason Krause's interviewing stylehad changed.  She devoted pages of her 25-page report to descriptions of howshe had explained to “Chuck” the importance of telling the truth, why it wasimportant not to change stories, and not to add on to them.  She encouraged “Chuck”to report only what really happened.  At times throughout the interview, when“Chuck” made statements, Krause challenged him; she asked him if this reallyhappened or if he might be mixed up.  These are excellent interviewingtechniques and should be applauded because they allow the interviewer toexplore alternative hypotheses.  The problem is that it seems that these werenot used consistently throughout this interview with “Chuck”.  As well thesetechniques were conspicuously absent in other interviews with “Chuck” and withthe other children.  This raises the possibility that the challenges were usedselectively.  Because of the selectivity of the challenges, it is not clearfrom the report the exact acts that “Chuck” continued to claim did happen.      It is clear that“Chuck” recanted all the claims about the instruments used in the drawings,children being murdered, other adults being involved (although it takes a fewchallenges to make him give up on this one), having to drink substances, andpornography.  During the interview he reported that all the kids made thingsup.  Furthermore, at times he was able to provide the sources of the suggestionfor the false reports (e.g, his mother; magazine pictures of dildoes; Mickey'sdrawings; television programs)      But there seem to besome claims that “Chuck” did cling to.  He said that Lynn did give the childrenshots.  Later, he claimed that "she didn't use any of those things 'ceptthe screwdriver and knives."  But when asked to tell about the knives, hesaid that he didn't know about knives.  By the end of the interview, it seemsthat the only standing claims were that Lynn threatened them, that she used ascrewdriver and that she touched his penis with her hand.      I have several graveconcerns about the interview.  First, this interview is too long, raisingconcerns about the child's claims as it progresses.  Second, “Chuck” did notmention a screwdriver in his previous interview with the police on April 13,and yet it becomes a salient feature of the June 2 interview.  Third, despitethe claims of anal insertion, there was no medical evidence to support thisclaim. [44]  Most importantly, the major claims that were not recanted were not challenged by Krause or by Nelson.  Given the completeness of many aspects ofthis report, this raises the suspicion that these critical events were notdealt with in the same way as those that were recanted.  That is there is noevidence in the report that “Chuck” was asked the following types of questions:      "OK let's justcheck some of the things that you have been saying happened and didn't happen. I just want to make sure that we got these right.  Did Lynn ever give youshots?  Are you sure about this.  Did she really touch your penis or was itjust Kirk?  Are you really sure?  Remember it is important not to get mixedup."      Even if “Chuck” hadclung on to his statements, however, given the evidence of how the allegationsemerged in this case, and given this child's own descriptions of how he hadbeen handled by adults, there is a high a degree of doubt about the reliabilityof any of his statements.  He may have been abused, but the questioningprocedures have so tarnished the evidence that it is impossible to make adetermination of abuse.   Jennifer Malcom      A review of the scientificliterature indicates that there are clear differences in children'ssuggestibility, with preschool children being the most vulnerable to suggestion(see Ceci & Bruck, 1995 for a review).  However, this does not imply thatolder children (e.g, Jennifer, who is nine years old) are therefore immune tosuggestive and coercive forces.  Exactly the opposite is the case.  Children donot reach adult levels of resistance to erroneous suggestions prior to earlyadolescence.  In some of these studies, the impact of suggestive interviewingtechniques is frequently marked.  For example, in some studies, eight-year-old,nine-year-old and even ten-year-old children are significantly more suggestiblethan adults (Ackil & Zaragoza,1995; Warren & Lane,1995).  While itcould be claimed that these studies have less relevance for the courtroom,because these studies assessed children's memories of neutral events that didnot involve participation, similar findings have been reported when childrenwere suggestively interviewed about events in which they themselvesparticipated.  For example, when asked to recall the details of an event thatoccurred four years previously, children between the ages of seven and ten wereinfluenced by the atmosphere of accusation created by the experimenters, andthey inaccurately reported events (Goodman, Wilson, & Hazan, 1989).  Inanother study, a significant proportion of eight-year-olds reported thatsomething "yuckie" was placed in their mouths when these noneventswere incorporated into stories that parents read to their children (Poole &Lindsay, 1996, in press).  Even adults' recollections are impaired bysuggestive interviewing techniques, albeit in reduced magnitude to thatobtained for very young children (Hyman & Pentland, 1996; Hyman, Husband& Billings, 1995; Kassin & Kiechel, 1996; Loftus & Pickrell, 1995;Malinowski & Lynn, 1995, 1996).      In the next section,I provide a few details from the three interviews with Jennifer that raisedconcerns either about the accuracy of the reports themselves, or about theinterviewing methods, or about the reliability of Jennifer's responses.      There are threereports of interviews with Jennifer.  These contain much information and showin a number of ways how this child came into and left each interview probablyvery distressed.  Before the first interview on February 6, Jennifer had towait 45 minutes while her parents discussed their reticence to allow the policeto interview Jennifer unaccompanied by her mother (this is not unreasonable asthe Malcoms had already been present when Nelson interviewed Kirk for over twohours, during which time Nelson pounded on the table and accused Kirk ofabusing the children).  Finally, Krause was so insistent about interviewingJennifer alone that she threatened taking Jennifer into protective custody.  Inthis first interview, there is no indication that Krause used a standardinterviewing technique of warming-up the child and making her feel relaxed,rather she immediately began a suggestive round of questioning procedures.  Atthe end of the first interview, Krause did something quite unusual andunethical.  Based on Jennifer's claims that she had told her parents about Kirkand the parents' denials that this had happened, Krause set up the followingconfrontation between Jennifer and her mother:   "Atone point I indicated that Jennifer had told me she told her mother when Kirkwas doing things, and Lynn Malcom asked Jennifer, "Did you tell me?" Jennifer immediately stated, "Yes."  Lynn Malcom asked Jennifer,"What would I say?"  Jennifer at that time made a gasping noisesimilar to the sound one would make as a response indicating they were aghastor appalled."   Krause's actions wereincredibly dangerous and unethical.  If Krause truly believed Jennifer's story,she should not have risked revealing it to the mother who might seek someretribution against her child.  Furthermore, if the interaction did occur asshe describes it, Jennifer's behavior could in fact be in reaction to having totruthfully deny the false assertion she made to Policewoman Krause, somethingthat would make her aghast.  In any case, this procedure reflects Krause'sinsensitivity or ignorance of the needs and behaviors of young children and howshe used interviewed a child with the same coercive techniques that might beused with adults.      The second interviewwas clearly stressful for Jennifer.  She cried during different parts.  Shesighed, and took a long time to answer questions.  Krause is aware of thesebehaviors as she explicitly describes them in her report; however, she neverstopped the interview.  This is highly unusual.  Jennifer was not a suspect buta potential victim.  The police's behavior did not lessen her distress but onlyincreased it.  Skilled interviewers do not continue interviews when childrenare so visibly upset.  The reasons for Jennifer's upset are not apparent.  Onthe one hand, she could have been very concerned about possible separation fromher mother (that did occur at the end of the interview) or it could be that theinterviewing procedures themselves were so upsetting that it took all herstrength to continue.  Of course, there is the possibility that she was in aconflict about whether to tell of the abuse by her mother.  But despite thesuggestiveness and length of this interview, Jennifer did not accuse hermother.      By the thirdinterview, which occurred four days later, Jennifer had been removed from thecare of her mother.  Other children had made allegations and the policecontinued to pressure Jennifer, at which point she did finally report that Lynn had abused her.  But there are a number of features of all these reports that raiseconcerns about the reliability of Jennifer's final accusations and about theaccuracy of the report itself.      First, Jennifer'sreports (in her first interview) of when the abuse occurred is inconsistentwith the other children's reports and it is changed so that it is moreconsistent by the last interview.  In the first interview, she claimed that thelast time she was abused was toward the end of her grade 2 year (spring of1986).  However, the other child witnesses were making claims that the abusewas in the fall of 1986 and the winter of 1987.  By the third interview,Jennifer had remembered that it also happened in her grade 3 year.      Jennifer wasinconsistent about the children that participated in the abuse.  In the firstinterview, she named “Chuck”, “Niel”, Ben, and Mickey through most of theinterview.  "Bertil" and “James” were named only later in the interview.  Onewonders how to interpret this late inclusion.  Did Krause fail to documenttheir names earlier?  Did Krause mistakenly include them later?  Did Krauseexplicitly ask Jennifer about "Bertil" and “James” and forget to include theseimportant questions in her report?  These inconsistencies, small as they are,add to the mounting evidence of the inaccuracy of the written reports and ofthe child witness.      In the secondinterview, Jennifer seemed to recant claims about touching by the little boys:   "Iindicated to Jennifer that when we had talked before, we talked about herprivate parts being touched by someone else and I asked her if she could tellme how many people had touched her private parts before.  Jennifer stated,'Kirk did it and ??? and “Chuck” but Mickey didn't and Benjamin didn't or theother little boys didn't; anyway, I can't remember.'"   Also during this sameinterview Jennifer said that the little boys lied a lot.  By the thirdinterview, all the boys were named as witnesses or participants.      There are otherexamples of how Jennifer's testimony changed over time.  For example in thefirst interview, Jennifer did not know the name "vagina" but wasprompted to use "private part."  She used the word"wee-wee" for "penis."  By the third interview she used theterms (at least according to Krause's reports) "vagina" and"penis."  There are two interpretations of this change.  First,Krause may have misreported the terms in the last report.  Second, Jennifer mayhave learned much about sexual matters between the first and third interviewsas a result of the suggestive interviewing techniques used primarily by thepolice.      In the first andsecond interviews, Jennifer made no allegations regarding anal insertions of"screwdrivers" which seemed to be a common allegation among the otherchildren who all had contact with each other either through the neighborhood,their parents, or their therapists.  However, by the third interview, and forthe first time, Jennifer mentioned screwdrivers.  Similarly, in the thirdinterview only, Jennifer made allegations against Donna.  The concern aboutthese new allegations is based upon the literature reviewed earlier in thisreport.  When new information comes out for the first time in later interviews,there is a high doubt as to its accuracy.      In the thirdinterview, Jennifer made a rash of allegations, none of which appeared inprevious interviews.  But it is impossible to tell from the report whetherthese allegations were spontaneous or in response to questions posed by Krauseand by Peters. There are some hints that indeed maybe many of the allegationswere a result of suggestive questions.  For example, the interviewers asked:   Ifanyone took any pictures she didn't like.   "Didanything happen with shots?"  (Jennifer was asked about this three times. At first she provided details about her being a recipient, but at the end sherecanted, saying she did not get a shot)   But the more concerningaspect of this interview is that Jennifer makes a number of claims that seem tohave been based on “Chuck”'s and Mickey's reports of a few days earlier (e.g.,pornography; shots; smothered in plastic bags; insertion of turkey-basterenema).  Her reports seem to match “Chuck”'s almost to the detail (e.g., Thelittle blue thing you squeeze and air comes out).  The problem is that“Chuck” later told Krause that he had made all of this up and that none of itwas true (e.g, the blue bulb you squeeze was never inserted into theirrectums, but was something “Chuck”'s mother used on his little sister when shehad a cold).  So, if there was no such instrument used, then how did this getinto Jennifer's report?  It is impossible that Jennifer made these claimsspontaneously, as they are represented in this report.  The only sensibleanswer is that Krause suggested this to her and pursued her until she madethese claims.      This one exampleraises suspicions about the whole report.  It raises the suspicion thatJennifer's allegations were highly prompted if not coerced and were neverspontaneous as implied in the report.  This along with the other evidence abouthow her reports changed over the three interviews leads to the hypothesis thatJennifer was suggestively interviewed to the point that she provided falseallegations.  Jennifer's statements in her recantation at 18 years of age areconsistent with this hypothesis. According to Jennifer's recantation, she wasmore than just pursued by suggestive interviewing techniques:  she remembersthat she was told that she was a liar, that she was denying, and that she couldbe with her mother if she told the truth.  Of course it is possible that someof Jennifer's original childhood allegations were accurate.  But given theconditions under which she was questioned, so much of the evidence was tarnishedthat it will be impossible to ever tell.      Finally, it is highlypossible that if the same combination of factors that were used in Jennifer'sinterviews were used on non-abused children in a laboratory setting, that manyof these children would also come to make false claims of abuse against lovedones.  However, the interviewing procedures that Jennifer was subjected to wereso "abusive" in themselves that they would never be examined inresearch studies, because researchers and their institutional review boardswould deem the practices that occurred in the interviews with the Jennifergrossly unethical, whether they be used on naive research subjects, on childrensuspected of sexual abuse, or on children with confirmed diagnoses of sexualabuse.   Kirk Malcom      I have not focused onKirk's statements in this report for several reasons.  First, there is littleinformation about how Kirk's case was handled.  Second, Kirk was older than theother children, and there is little if any scientific literature on thereliability of 13-year-old children's statements.  Finally, of all the childrenin the case, Kirk may have had the greatest motive to "lie" and thushis statements may reflect very different psychological processes than those ofthe other children.  Nevertheless, as detailed below, there are a number ofconcerns and issues raised by the existing information about Kirk.      There are utilityreports of four different interviews.      The first wasconducted on January 30, and it lasted two hours and thirty minutes.  Accordingto the report, during this time, Kirk was read his Miranda rights, Kirk gaveinformation about his guns, and then Kirk provided a detailed description ofhis one sexual encounter with “Chuck” that had occurred the previous summer. Kirk related that he had showed “Chuck” how to masturbate, by rubbing “Chuck”'spenis.  This was the only incident of abuse that Kirk assented to in thisinterview.  It is not clear from the report what else transpired during thislengthy interview.  But at least according to Lynn Malcom, Nelson shouted atKirk.      The next interviewwith Kirk occurred on April 20, 1987.  At this point Kirk had pled guilty tocharges of abuse with younger children and was in therapy.  It is not clearwhether Kirk was aware of the allegations made against his mother; however, hisfather had known of these allegations for at least one week (see policeinterview and contact summary).      In the first 45minutes of this interview, Kirk denied that his mother was involved in any ofthe abusive incidents or that his mother had ever seen Kirk abuse the youngerchildren.  Kirk did talk freely about the abuse with the younger children,however.  Krause then terminated the interview for a short while.      From the shortdescription in the utility report, it seems that Kirk made more elaborateclaims about abuse with younger children than he did in the first interviewwith Krause.  But there is no information about what these charges were, norhow the confession was extracted.  However, it is clear that in this interview,Krause told Kirk that his sister as well as the younger children had implicatedLynn Malcom and Kirk was challenged as to why his sister would say suchthings.  Nevertheless, Kirk continued to deny that Lynn had abused any of thechildren.      Next, Krause talkedto Kirk's father, who then spent some time with Kirk.  Jim Malcom then toldKrause that Kirk was ready to talk about things he was afraid to say before. At this point, Kirk assented to abuse by his mother.  He thought that the firstincident happened in the summer of 1985 (when he was 11 years old).  His claimsare vague and seem to emerge as a result of much prompting.  These claimsinclude: --Lynn touched Kirk'spenis with her fingers --Kirk had to pull hispants down and so did Lynn --Kirk touched Lynn's vagina with his finger --Nobody saw this happen --Lynn made the boys touchher and Jennifer --There was licking but nokissing --Lynn never put her mouthon Kirk's penis --There was no touching ofthe breasts --Kirk thought that Lynn put the screwdriver in Mickey and Ben's bottom (but he said it was hard to remember) --Kirk didn't remember Lynn taking any pictures --Kirk didn't remember Lynn's threatening not to tell --Kirk stated that hestuck his own finger up his bottom a couple of times --Kirk talked about abuseby another neighborhood boy. (NB.  There did not seem to be any questions aboutthis sexual encounter in this interview) --Kirk didn't see thechildren with plastic bags over their heads.   Finally, in Krause's words,"Because of the lateness of the hour and because it was obvious that Kirkwas tired and that it was difficult for him to discuss specifics," theinterview was terminated.      It is difficult toevaluate the accuracy of Kirk's statements for a number of reasons.  First, ashas been mentioned throughout my report, without the actual transcript of theinterview, it is impossible to tell how much Kirk was coerced into making thestatements.  It is clear that Krause asked him about a number of details orsituations that were just mentioned by Jennifer.  In many instances, Kirk'saccount was inconsistent with that of Jennifer's (he denied that there werethreats, that there were pictures taken, that the children were given shots,that they were wrapped up in plastic bags).  Kirk wasn't even sure if he couldremember one of the key allegations:  anal penetration by a screwdriver.  InKrause's own words, Kirk had difficulty discussing specifics.  A second issueabout which there is no data concerns the contents of the conversation betweenKirk and his father.  Did Jim Malcom tell Kirk that he should assent toquestions about abuse by Lynn because this would make life easier for him inthe long run?  Did Kirk in fact assent to so many of the questions because hewas frightened about his own upcoming sentence and thought that this might beone way to escape punishment?  Or did Lynn actually abuse Kirk and the otherchildren and Kirk's silence was a way of protecting his mother?  Any of thesehypotheses are reasonable.  However, only the latter seems to have beenexplored by Krause.  This gives further evidence about the biased nature ofthis whole investigation.      It is during thethird interview on May 15, [45] thatKrause finally asked for details about Kirk's earlier history of sexual contactwith older neighborhood children, a history that seems to be quite extensive. It is therefore surprising that with the amount of detail provided in thisinterview that there was no evidence that the police investigated these claims,since it seems that it was possible that Kirk's male sexual partners mightstill be molesting neighborhood children.  Furthermore, according to Kirk, oneof these boys raped Jennifer.  Given the fact that Jennifer's medicalexamination revealed some positive signs of sexual abuse, one wonders why thepolice did not rule out this earlier abuse as a possible explanation of themedical findings.  Kirk's descriptions of three different male partners weremore detailed than the descriptions of his abuse by Lynn he had provided Krausein an earlier interview.  He remembered his age, the frequency of contact andthe places of contact.  It seems that sexual contact went on for almost threeyears with one partner.      In this sameinterview, Krause brought the topic back to the current charges against Lynn.  Kirk claimed that the abuse first started when they lived in the trailer.  Krauserepeated questions from a previous interview about syringes but Kirk deniedseeing these used with the children and he denied that the children were givendrugs of any type.  He continued to deny knowledge of pornographic pictures. Krause also questioned Kirk about other potential male perpetrators (based oninformation provided by other children in the case, one assumes).  During this interview,Kirk was asked about the sleeping arrangements and he stated that Donna andLynn had separate rooms.  Kirk also stated that his mother had not told himwhat to say or what not to say to the police officers during the investigation.      Kirk, however, nowclaimed that Lynn performed oral copulation whereas this was denied in thefirst interview.  He now claimed that Lynn did put a screwdriver in his buttand he remembered this happened to the other children as well.  Lynn also inserted pieces of kindling in the kids' bottoms.      In the next andfourth reported interview on July 7, 1987, Kirk's expanded his prior claims andnow assented to many allegations that he had previously denied.  Kirk toldKrause, he remembered a lot more because he had more time to think aboutthings.  He now remembered that Lynn began molesting him when she was stillmarried to his father.  He now remembered that his mother instructed him how toput his penis into Jennifer's vagina; he now remembered Lynn's threats andbribes to keep him quiet about the abuse; Kirk now retracted a previous denialabout intercourse with his mother and claimed that it did happen; he nowclaimed that Donna and Lynn slept in the same bed; and after two interviewswhere he denied that Lynn took pictures of the children, Kirk now rememberedthat pornographic photographs were taken; he now remembered that he and theother children would rub, squeeze and suck Lynn's breasts, although he deniedthis in an earlier interview.      There are twointerpretations of this interview.  The first is that up to this point Kirk hadbeen scared and embarrassed to talk about the horrendous acts of abuseperpetrated by his mother, but after several months of questioning and sometherapy, he was ready and willing to disclose as much as possible.  In asimilar vein, Kirk may have been unable to remember many details in earlierinterviews, but by "thinking" more about past events, his memoriesreturned.  Although it is possible that Kirk may have recovered some lost memories,there are some studies that suggest that if adults repeatedly think about falseevents, then will, like younger children, come to think that these eventsactually happened (e.g, Hyman, Husband & Billings, 1995).  A secondinterpretation of the evolution of allegation in this fourth interview is thatKirk was scared.  According to Krause's report, he was in Juvenile Hall, he wasnot receiving any treatment, and he was frightened by the other boys in thefacility.  Krause wrote, "During my contacts with Kirk during the pastseveral weeks, he is very much aware of the system and what happens or is aboutto happened in reference his case (sic)."  It is possible that Kirk'sallegations were thus false and were the result of the coercive interviewingprocedures but also reflected a motivation to "lie."  Possibly Kirkthought (or was told) that by helping the police his sentence could be reducedor his status in the current facility could be changed.  Certainly, some of hisallegations are suspect due to a lack of evidence (e.g, Donna and Lynn's relationship; pornographic pictures) and these very allegations were recanted amonth previously by “Chuck Morgan”.      Regardless of theinterpretation of Kirk's testimony, there is no doubt that he is an unreliablewitness.                               Summary      At the beginning ofthis report, I discussed the reliability of young children's reports byfocusing on some problems in accurately assessing child sexual abuse.  Ofparticular concern is the pattern of disclosure in which the child initiallydenies but then later reports abuse.  Although some professionals state thatthis is a common pattern among sexually abused child victims, the researchreviewed in this report provides an alternative hypothesis that is consistentwith many of the facts in the Malcom case.  Specifically, suggestiveinterviewing techniques and other social contaminating factors resulted in thechildren providing unreliable reports.       I have discussed anumber of these factors that, when present in interviews or interactions withyoung children, may greatly compromise the accuracy of their reports.  Thesefactors include:  biased beliefs of the interviewer, the use of repeatedquestions, the repetition of misleading information, and the use of rewards,bribes, and threats.  Children's reports are at risk for being tainted if theyare interviewed by an intimidating adult, such as a police officer.  Otherimportant factors that contribute to children's unreliable reports include theuse of peer pressure, the use of anatomically detailed dolls, and stereotypeinduction.  Other evidence indicates that merely asking children to repeatedlythink about whether an event occurred may have a profound negative effect ontheir subsequent memories.  These factors have their greatest impact when usedin combination, as they were with the Malcom witnesses.       The research alsoshows that under certain conditions, a substantial percentage of children canbe led to make false reports of events that never occurred, including eventsthat involve their own bodies and that would have been quite traumatic had theyoccurred.  Based on this literature, and based on the analyses of the Malcom interviews, it is my opinion that the constellation of factors operating in the Malcom case would constitute an extraordinarily powerful suggestiveatmosphere, one that is far stronger than those that have given rise to falsereports in the research studies that we have described in this brief.      There are immenseobstacles that face those who investigate reports of suspected childmaltreatments.  The intention of this document is not to diminish theseriousness of the problem of child sexual abuse in today's society, rather itis to emphasize that unless one is very careful in the interviewing proceduresthat one uses with children suspected of abuse, one may never make an accuratedetermination of whether or not abuse occurred.  This is because there are anumber of interviewing procedures that have the potential to make non-abusedchildren look like abused children. These are the same procedures that wereused in the interviews with the Malcom children.  Using theseprocedures, children may not only come to falsely report acts of sexual abuse,but they may come to believe that they experienced the events they reported. At times, these children's memories may be permanently tainted by thesexualized suggestions of their interviewers.  In some cases, these childrenappear highly credible both to subsequent interviewers, to family, and tojurors.      The fact that thesechild witnesses in Malcom underwent extremely suggestive interviewsmakes the determination of accuracy impossible. In other words, if there wereincidents of sexual abuse, the faulty interviewing procedures make itimpossible to ever know who the perpetrators were and how the abuse occurred. Because the statements gleaned from the children in this case were the productof techniques so overbearing as to have a high likelihood of generatingallegations of sex abuse from children regardless of their actual experience,these allegations are unreliable.          I declare underpenalty of perjury that the foregoing is true and correct to the best of myknowledge and belief.        Executed on_____________, 1998 at Montreal, Quebec                                 _____________________________                         MaggieBruck, Ph.D                             References   Ackil, J.K. &Zaragoza, M.S. (1995). Developmental differences in eyewitnesssuggestibility and memory for source. 60 Journal of Experimental ChildPsychology, 57-83.   Binet, A. (1900). LaSuggestibilité. 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[1]  See Index Section A: Phone interview with Lori “Logan”, 01-29-87; Section B: Interview with Benjamin and Lori “Logan”, 01-30-87 [2]  See Index Section A: Initial report by Gail “Morgan”, 01-29-87; Section C: Interview with “Chuck Morgan” by Nelson, 01-30-87 [3]  See Index Section A: Initial report by Gail “Morgan”, 01-29-87 [4]  See Index Section A: Initial report by Gail “Morgan”, 01-29-87 [5]  See Index Section G: Interview with “Mark Mason”, 02-03-87 [6]  See Index Section G: Interview with “Mark Mason”, 02-03-87 [7]  See Index Section G: Interview with Mrs. “Mason”, 02-04-87 [8]  See Index Section J [9]  See Index Section J: Interviews with "Bertil" and Mrs. "Swanson," 02-18-87; 02-19-87 [10]  See Index Section H [11]  See Index Sections E-J [12]  See Index Section L: Interview with Ben “Logan” 04-06-87 [13]  See Index Section M [14]  See police interview and contact summary [15]  See Index Section L in report of interview on 04-06-87 [16]  See police interview and contact summary [17]  See police interview and contact summary [18]  See interview with Jennifer 04-20-87 [19]  See police report interview and contact summary. [20]  See Index Section U [21]  See Index Section V [22]  See interview with Lori “Logan”, 01-30-87 [23]  See Index Section U [24]  See Index Section W [25]  See “Chuck Morgan” interview, 06-02-87 [26]  See Jennifer interview of that date [27]  See interview with Mickey 04-14-87 [28]  See interview 04-30-87 [29]  See interview 04-20-87 [30]  See “Chuck Morgan” interview 06-02-87 [31]  See “Chuck Morgan” and mother interview 04-13-87 [32]  See videotape of Jennifer's recantation [33]   04-16-87 [34]  See Index Section N [35]  See Index Section B [36]  See Index Section B, notes about Feb 2 interview are contained in 01-30-87 report [37]  See Index Section B, reports from Dr. Gladyschild on contacts with Benjamindated 02-27-87 [38]  See “Chuck Morgan” interview June 2 [39]  See Index Section W, phone interview with Lori “Logan” 06-03-87 [40]  See “Chuck Morgan” interview June 2 [41]  Jennifer April 16 and April 20 interview [42]  See “Chuck Morgan” interviews April 13, June 2 [43]  Index Section U [44]  See Index Section C, medical reports. Section R, medical reports [45]  There is some confusion in the record.  According to the police log Kirk wasinterviewed again on April 22.  Although there is a utility report dated April22, it contains no details about that interview but rather about an interviewthat seemed to have occurred on May 15, 1987.  (Note there is a entry in thepolice log of one interview on May 20, 1987, but there does not seem to be autility report of this interview). Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Lynn Malcom's Federal Appeal JOHN H. HILL, WSBA #05663 Director, Dept. of Assigned Counsel Pierce County 949 Market Street, Suite 334 Tacoma, WA 98402-3696 Tel: (253) 798-7292   MICHAEL R. SNEDEKER, Cal.St.Bar No. 62842             Snedeker, Smith & Short PMB 422 4110 S.E. Hawthorne Blvd. Portland, Oregon  97214 Tel:  (503) 234-3584   Attorneys for Petitioner MARILYNN R. MALCOM                                  IN THE UNITED STATESDISTRICT COURT   FOR THE WESTERNDISTRICT OF WASHINGTON   AT TACOMA                                                                          __________________________________________                                                                                     )          NO.                                         MARILYNN R.MALCOM,                                     )                                                                                      )             Petitioner                                                         )                                                                                     )                                                           v.                                            )           Clark Cty Sup. Ct. No. 87-1-                                                                                     )           00339-6;Court of Appeals ALICE PAYNE,                                                        )           Nos.15119-7, 11735-5-II,                         )           22979-0-II;Supreme Court                                                                                     )           No.67509-1    Superintendentof Washington                                   )           CorrectionalCenter for Women,                                )                                                                       )                                                             PETITION FORWRIT OF HABEAS CORPUS               Petitioner, MARILYNN R.MALCOM, by and  through her attorneys, Michael R. Snedeker [1] and John H. Hill, petitions this Court for a writ of habeas corpus, and byverified petition alleges as follows: I.   JURISDICTION             This case arises underthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.  The Court has jurisdiction to entertain this application forwrit of habeas corpus pursuant to 28 U.S.C. Section 2254.             Petitioner isunlawfully detained by Respondent Alice Payne at the Washington Correctional Center for Women at Gig Harbor in the custody of the Washington Department ofCorrections.  On September 21, 1987, she was convicted in Clark County SuperiorCourt of twelve counts of statutory rape and indecent liberties.  (Clark County Superior Court No. 87-1-00339-6.) [2]  She was sentenced to eighteen years in state prison on January 15, 1988.              The Court of Appealsfor the State of Washington, Division Two, affirmed the judgment on February 13, 1991.  See Court of Appeals for the State of Washington, Division II, Statev. Malcom , No. 11735-5-II, attached hereto as Appendix **.  On June 10, 1991, Petitioner filed a pro se Personal Restraint Petition before that presentedclaims essentially the same as those presented in her pro se brief.  See PRPNo. 15119-7, attached hereto as Appendix *.  On September 3, 1991, the Washington Supreme Court denied Petitioner’s Petition for Review.  See Order, SupremeCourt of Washington, filed 9/3/91, attached hereto as Appendix *.  Ruling thatmost of the claims therein had been presented in her direct appeal, and thatshe had not shown that other issues raised had resulted in actual andsubstantial prejudice, the court denied her Personal Restraint Petition on September 24, 1991.  The Order Dismissing the Petition is attached hereto as Appendix *. Petitioner’s continuing efforts to vindicate herself resulted in a clemencyhearing on September 5, 1997; her petition for clemency was denied.              Petitioner, representedby present counsel, filed another Personal Restraint Petition in the WashingtonCourt of Appeals, Division Two, on February 10, 1998.  See *.  It was denied on December 4 of that same year, on both substantive and procedural grounds. See Opinion Dismissing Petition, attached hereto as Appendix *.  The WashingtonSupreme Court denied Petitioner’s motion for discretionary review on **.  SeeDenial, attached hereto as Appendix *.  Petitioner’s motion to modify thatdenial was denied on **.  See Appendix **. II.   FACTUALBASES FOR ALL CLAIMS A.                    Background             Petitioner was born in1946.  In 1969, she married Jim Malcom.  They had two children: Kirk, born inApril of 1974, and Jennifer, born in December of 1977.  In 1982, after thirteenyears of marriage, she and her husband divorced.  The children lived withPetitioner, and spent two nights a week and every other weekend with theirfather.  Between 1982 and 1986 there were numerous disputes between the two parentsthat began to dampen down after Jim Malcom remarried in 1985.  See 9/15/87 RP 44-45; 9/17/87 RP 15-17, 41, 73, 78.             Petitioner’s home inlate 1986 was located on the outskirts of Vancouver.  Her neighbors includedthe “Morgan” family, from whom she rented her house, and the “Logan” family. The neighbors’ children – “Chuck Morgan”, six years old; “James Morgan”, fouryears old; “Neil Morgan”, three years old; and “Brian Logan”, four years old –played with Petitioner’s children and were often around the house.  9/10/87 RP 57-60, 97-100; see the prosecutor’s Motion In Limine, Appendix A.  From 1985 tothe spring of 1986, Donna Binford and her children, Ryan and Rebecca, livedwith Petitioner and Kirk and Jennifer. [3]               In late 1986,Petitioner started the Rainbow Christian Daycare Center and advertised forbusiness in the local paper.  The Center, located in her home, opened inNovember of 1986.  Petitioner sought a license, and attended a requisiteclass.  At the same time, she worked on call as a dental assistant, and soldHerbalife products as time permitted.  By the end of the year, there were threechildren in the daycare:  “Mark Mason”, six years old; “Michael Richards”, fouryears old; and “Robert Richards”, two years old.  Petitioner also informally caredfor the three “Morgan” boys and “Brian Logan” on an occasional basis.  And shecared for her own children as well who were then twelve years old (Kirk) andnine years old (Jennifer).  Nineteen-year-old Kate Sullivan acted asPetitioner’s childcare assistant. [4]   9/16/87 RP 29-31; 9/17/87 RP 15-17. B.                     How The Charges Arose 1.                                  Charges AgainstPetitioner’s Son Kirk             Sheriff’s officereports [5] indicate that the first allegations of sexual abuse in this case originatedwith Petitioner’s neighbor, Lori “Logan”, the mother of “Brian”.  Ms. “Logan”had been suspicious of Kirk Malcom, and “had heard” that Kirk taught “ChuckMorgan” to masturbate.  On January 28, 1987, Ms. “Logan” and her four-year-oldson “Brian”, watched a videotape on sexual molestation by strangers entitled“No, go tell.”  Afterward, she asked “Brian” if Kirk had ever “done anything tohim.”  “Brian” supposedly then told her of graphic sexual activity – neverbefore mentioned or complained of – involving Kirk and Jennifer Malcom and the “Morgan”boys.  See Appendix F, Clark County Sheriff’s Office [hereafter, “CCSO”]Utility Report, 1/30/87, 10:30 a.m., by Det. Steve Nelson.             Ms. “Logan” immediatelytold Ms. “Morgan” the details of “Brian”’s supposed allegations.  Ms. “Morgan”in turn questioned her oldest son, “Chuck”, who denied that anything of thisnature had happened to him.  However, according to Ms. “Morgan”, “Chuck” saidthat the acts “Brian” supposedly described to his mother did happen to hisbrothers, 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 Appendix F,CCSO Utility Report, 1/29/87, by Officer Lyn Farr, re: “Morgan”.             None of these childrenhad ever complained about or even mentioned these alleged acts prior to January28; they still played with the Malcom children and came in and out of theMalcom home.             On January 29, Ms. “Logan”and Ms. “Morgan” both telephoned the Clark County Sheriff’s Office and reportedwhat their children had allegedly told them.  See ibid .; see alsoAppendix F, 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 toNelson’s report, Ms. “Logan” told him that “Brian” said that Kirk inserted ascrewdriver 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 andthe three sons of next-door neighbor Gail “Morgan”, and that Kirk threatened tosquirt 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 theallegations “Brian” confirmed to Nelson involved the squirt gun.  See AppendixF, 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”. According to Nelson, “Chuck” told him everything he had told his mother.  SeeAppendix F, CCSO Utility Report, 1/30/87 [no time noted], by Det. Nelson.  Petitioner has never been provided with any report of any interview ordiscussion between Nelson and Ms. “Morgan”.  Kirk Malcom was arrested on January 30, 1987, and charged with several counts of rape.              Shortly after theseinitial interviews, Sharon Krause joined Nelson in interviewing the allegedchild victims, and at least one therapist was used to interview and “counsel” “MarkMason”, Lori “Logan” and “Brian Logan”.  Numerous interviews were conducted,and medical examinations were made of “Brian Logan”, the three “Morgan” boys,and “Mark Mason”.  On February 6, 1987, a warrant was obtained and Petitioner’shouse was searched.  See Appendix F, passim . 2.                                  Petitioner Is Implicated             Despite the apparentinvestigative momentum reflected in the February reports, no reports have everbeen provided to Petitioner reflecting any official activity on the case duringthe month of March, 1987.  The next report that appears is dated April 6, 1987, based on a conversation between Lori “Logan” and Nelson on April 4.  Thisreport contains the first reference to Petitioner as an alleged participant insexual activity with children.  Prior to April 6, the only person named by thechildren as a perpetrator was Kirk Malcom.             The stated source ofthe April 6 report was Lori “Logan”, who claimed that her son “Brian”spontaneously told her while watching television on April 1, that “Lynn was therewhen Kirk [sexually abused] us.”  See Appendix F, CCSO Utility Report, 4/6/87, by Det. Nelson.  Despite this explosive accusation, no reports apparently exist ofany official activity or investigation of the case for the next seven days. [6]             The next mention ofthis investigation occurs on Monday, April 13, 1987.  Lori “Logan” called Gail “Morgan”to relate that “Brian” had accused Lynn Malcom.  Ms. “Morgan” interviewed eachof her children separately and they denied any knowledge of Lynn being present. Nelson then reports that the “Morgan”, “Logan” and “Mason” families met atLori “Logan”’ home the night of April 12; eventually the children were said tohave aimed new accusations of violence and sexual abuse at Petitioner.  Theaccusations involved bizarre and incredible tales of large-scale child sexualabuse supposedly perpetrated by Petitioner.  These allegations were related byLori “Logan” and Gail “Morgan” in phone calls to Detective Nelson.  SeeAppendix F, CCSO Utility Reports, 4/6/87, 4/13/87, by Det. Nelson.             Krause then conducted alengthy interview with Jennifer, who repeatedly denied that her mother abusedher.  On April 16, a second search was made of Petitioner’s home.  In theaffidavit in support of this search, Detective Nelson detailed a long list ofsexual aids and pictures, computer and bank records, and incriminatingdocuments he believed would be found.  Again, nothing incriminating was found. See 4/16/87 affidavit and return, Appendix F.             Despite Jennifer’sdenials that her mother had abused her, and despite the failure to unearth anyincriminating evidence during the search, Detective Krause elected to promptlyremove Jennifer from her home with Petitioner.  On April 17, Petitioner agreedto the prosecution’s request that she take a polygraph examination,administered by Jerry Oswley.  Questions relevant to three of the allegationsmade against Petitioner were asked, and it was the opinion of the examiner thather response was “consistent with the usual indications of deception.”  SeeReport of 4/17/87 from Oswley to Sharon Krause, p. 1.  Then, in anotherinterview of Jennifer on April 20, Krause elicited from Jennifer accusationsagainst Petitioner similar to those described by the other children.  SeeAppendix F CCSO Utility Reports of 4/16/87 and 4/20/87, by Det. Krause.             Kirk Malcom had beencharged with six counts of rape.  On April 20, he pleaded guilty to indecentliberties.  After Jennifer’s accusation that same day, Krause interviewed Kirkin order to obtain accusations from him against his mother.  As he had severaltimes before, Kirk denied that Petitioner was involved in any way in childsexual abuse.  See Appendix F, CCSO Utility Report, 4/20/87, by Det. Krause.             On April 22, Krauseagain turned to Kirk.  Krause told him that his sister had accused Petitioner. Kirk continued to deny that his mother had abused anyone.  Krause then had Kirkmeet with his father who told him that it would help his mother, and himself,if Kirk accused her.  He then returned to the Krause interview, and this timeagreed that Petitioner had also participated in child sexual abuse.  9/15/87 RP 6; [7] see Appendix F, CCSO Utility Report, 4/22/87, by Det. Krause.             Thus, Petitioner – whodespite over two months of investigation had never been mentioned by any childas a perpetrator of anything and who had never been arrested for anything inher life – became, in the span of two weeks in April, the target of unspeakableaccusations of child sexual abuse and incest. C.                     TheRise and Fall of Ritual Abuse Charges             In May of 1987,investigators began producing another round of accusations.  Chargessimultaneously surfaced from several children that Petitioner and Kirk hadcommitted multiple murders; had engaged in Satanic ritualistic abuse of thechildren; 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 producepictures of murdered children; and much, much more.  See Appendix F, CCSOUtility Reports of 5/14/87, by Det. Nelson; 5/14/87 report of therapist Karen Gladyschild, Appendix F; see also Declaration of Dr. Maggie Bruck, attachedhereto as Appendix G, p. 5.              The prosecution becameconcerned about the believability of these accusations, particularly when itsinvestigation revealed none of the physical evidence associated with thesecharges.  On June 2, Krause and Nelson returned to reinterview “Chuck Morgan”again.  The report indicated a sharp change in Krause’s interviewing style. For the first time, her report indicates that she explained in detail theimportance of telling the truth, and challenged the interviewee; she asked “Chuck”if it really happened or if he might be “mixed up.”  These techniques were not,however, used consistently throughout the interview.             During this interview, “Chuck”recanted all claims about instruments used in drawings, children beingmurdered, other adults being involved, having to drink strange substances, andpornography.  He was also able to provide the sources of some of the false reports(i.e., his mother; magazine pictures of dildos; TV programs; common bathroomitems).  See CCSO Utility Report of 6/3/87, by Detective Krause, passim ; Declaration of Dr. Bruck, Appendix G, p. *.             When Gail “Morgan” andLori “Logan” learned of “Chuck”’s recantations, they became very upset, andaccused Krause of having manipulated “Chuck”.  They said that they “believedthe children,” and threatened to pull their children out of the case.  See CCSOUtility Reports of 6/3/87 and 6/4/87. D.                     Analysisof Investigation:  How the Case Against Petitioner Was            Created               Krause and Nelson’sinterviews of the child witnesses and alleged child victims were characterizedby an absence of verbatim recordings, the destruction of contemporary interviewnotes, and rampant interviewer bias.             Dr. Maggie Bruck, oneof North America’s leading cognitive psychologists and an expert on children’ssuggestibility, has carefully examined dozens of reports prepared by Nelson andKrause in this case.  She concludes that it is impossible to tell when or ifany of the children were actually abused or whether the accusations insteadresulted from suggestive and coercive interrogation techniques.  This isbecause the interviewing/interrogation of the children by their parents and byNelson and Krause was so insistent, suggestive, and coercive as to render anyaccusations gleaned therefrom unreliable.  Appendix G, p. 50.             Dr. Bruck demonstratesthat the questioners used the following suggestive techniques:             1.  Insisting onconfirmatory statements while ignoring disconfirming statements;             2.  Repeatedlyinterviewing children;             3.  Sharing informationwith each child ostensibly gotten from another child;             4.  Repeating questionsacross interviews and within interviews;             5.  Creating an atmosphereof accusation against Petitioner, setting an emotional tone which conveyed bothimplicit and explicit threats and bribes to the children for the desiredanswers;             6.  Telling thechildren that the authorities already “knew” that something happened andPetitioner was involved;             7.  Rewarding childrenwith presents for “telling;”             8.  Invoking their highstatus to encourage accusations against Petitioner;             9.  Using stereotypeinduction, or the describing of Petitioner as a bad person;             10.  Using sexual propsand cues;             11.  Relying on peerpressure; and             12.  Usingvisualization techniques directing the children to “think hard” about beingabused by Petitioner.  Appendix G, pp. 10-22.             Each of thesetechniques can induce false accusations.  When used in combination, as in thepresent case, they lead to false charges of sex abuse in very short order. Appendix G, p. 27.  Children can come to believe their false statements, andpresent them so convincingly that no adult can tell the difference.  SeeAppendix G, p. 50.             As Dr. Bruck observes,the interview techniques utilized on the alleged victims in this case wentbeyond suggestive and were sometimes very coercive.  The length of questioningsessions was grossly out of proportion to the age of the children; they lastedup to several hours.  Interviews of such length not only are painful tochildren, but they have been shown to produce more incorrect statements fromthem.  Here, sessions of more than one hour were commonplace.  Appendix G, p. 30.             Several interviews ofthe children were done without any report at all being made.  The writtenreports prepared by Sharon Krause, despite the liberal use of quotation marksand assurances that everything of importance was included, are demonstrably inaccurateand incomplete.  For example, Jennifer makes a number of claims that seem to bebased on “Chuck”’s and “Mark”’s reports of a few days earlier (e.g.,pornography, shots, smothered in plastic bags, insertion of turkey-basterenema).  The statements attributed to her seem to match “Chuck”’s almost to thedetail (e.g., the little blue thing you squeeze and air comes out).  See CCSOUtility Report of 4/20/87, p. 11; compare with 4/16/87 search warrant affidavit, Appendix F.             The problem is that “Chuck”later told Krause that he had made all of this up and that none of it wastrue.  “Chuck” is reported as telling Krause that the blue bulb you squeeze wasnever inserted into their rectums, but was something “Chuck”’s mother used onhis little sister when she had a cold.  Appendix F, 6/2/87 Utility Report, p. 14.  Dr. Bruck asks, “So, if there was no such instrument used, how did itget into Jennifer’s report?  It is impossible that Jennifer made these claimsspontaneously, as they are represented in this report.  The only sensibleanswer is that Krause suggested this to her and pursued her until she madethese claims.”  Appendix G, p. 45.             Thus, the reportsprovided to counsel made clear that the prosecution not only relentlesslypursued the children until they echoed what the interviewers wanted to hear,but that the interviewers falsely attributed to the children spontaneousstatements that could only have been the result of insistent direction.  Theresult was the generation of accusations against Petitioner that wereunreliable and false.  Appendix G, p. 45; Declaration of Jennifer Malcom,attached hereto as Appendix H, p. 3. III.   THECASE AGAINST PETITIONER A.                     Exclusionof Testimony About or From Six of Eight Children Allegedly Abused               Petitioner was chargedwith and convicted of crimes against seven children:  Kirk Malcom, JenniferMalcom, “Chuck” and “James Morgan”, “Mark Mason”, “Brian Logan”, and “MichaelRichards”.  The jury, however, heard nothing at all about any of the statementsmade by any child save Kirk and Jennifer.             The prosecutordescribed how the parents got together, shared information, improperlysuggested things to the children, and used unreliable interview techniques.  Hestated that he had “several very heated conversations about Mrs. “Logan”hindering this investigation.”  9/8/87 RP 183; see Appendix B.  According tothe prosecutor, wild and false charges of murders and rituals were the productof Lori “Logan”’ improper questioning of “Brian”.  She then passed theseallegations on to Gail “Morgan” who in turn grilled her own children.  Ms. “Morgan”then allowed Ms. “Logan” to question the “Morgan” children, leading them toalso make false charges.  From there, the lie-telling spread to otherchildren.  9/8/87 RP 183.             The charges of “killingof children and so forth, which the police later determined not to be true;[sic] came from Lori “Logan” interviewing her son “Brian”, who you found to bean incompetent witness . . . Most of the statements came from his mother, whosupposedly got them from him. . . .”  9/8/87 RP 118-119; see also RP 120 (prosecutor concedes that the charges were “crazy, bizarre allegations of killing anddead animals and dead children and so forth, about which there was no physicalcorroboration” and which were “debunked” by police).             The prosecutor told thecourt that early on in the investigation, he participated in a meeting betweenlocal law enforcement officials and the parents of the alleged victims.  Thepurpose of the meeting was to “basically attempt to prevent the parents of thekids that you’ve seen today . . . from questioning their children anyfurther.”  9/8/87 RP 182-183. “We advised them that if their childrentold them things, that’s fine; but they should listen but not question.  And wespecifically talked about the dangers of leading questions and the dangers ofsharing information with one another.  The “Logan” and the “Morgan”s live inthe same neighborhood and interact regularly just by proximity.  Their kidsplay with each other.                “And we warned them aboutthe dangers of sharing information that their children may have revealed.  Theydid not heed our warnings .  As a result, a lot of this stuff that we’vebeen talking about today was elicited, not just from one child, but then itcame from another, and looked on the surface like there might be some – itmight be real, there might be something to it, because it was coming from morethan one source.               “As we developed, or delvedinto it deeper, it became clear that it was shared information, improperlysuggested to the kids, improperly elicited, not using reliable techniques andso forth .”  9/8/87 RP 183, emphasis added.               What neither theprosecutor nor defense counsel told the court, however, is that theinvestigating officers who developed the very charges of which Petitioner wasconvicted used precisely the same techniques to get them that were laterroundly condemned as having created false allegations. B.                    Trial Counsel’s Failure toInvestigate/Present a Defense Based on the Suspicious Circumstances Under Whichthe Charges Arose and the Suggestive and Coercive Interview Techniques Utilizedto Extract Accusations from the Alleged Victims             There has never beenany dispute that it was Ms. “Logan” who started this entire investigation – andit was she who expanded it in April to include Petitioner.  But counsel forPetitioner did nothing to enlighten the jury about this crucial fact.  Heoccasionally told the court that the children seemed to have been manipulated,but he never made a coherent offer of proof.              Early on, counsel hadan extremely difficult time articulating why it was important to have an expertlook at the pattern of disclosures by the children to see if they werereliable.   Finally the trial court said, “I’m still trying to see if there’s areason to give you an expert and I don’t yet see it, I guess.  Perhaps we bestwait until you develop your own theory of why you need one.”  Counsel agreed.  8/31/87 RP 28-30.  The court ultimately awarded counsel money for the hiring of an experton the manipulation of children (9/4/87 RP 40), but to no avail.  Counsel didnot follow through and obtain one, nor did he explain what difficulties he mayhave had that prevented him from doing so.             Counsel did indicateearly in the trial that he wanted to call the youngest children.  However, forreasons never explained, he sought to call only “Chuck Morgan” and “Mark Mason”,and then only for the limited purpose of showing that they had named adults whowere not prosecuted.  9/8/87 RP 131-132.  Counsel continually vacillated onwhether or not he wanted the youngest children to be found competent orincompetent.  He ultimately asked that the trial court find them incompetent. This request is incomprehensible since their testimony was either exculpatory (bothfive-year-old “Michael Richards” and seven-year-old “Mark Mason” testified thatall they ever did at Petitioner’s house was “play” [9/8/87 RP 153; 161]), or the product of extremely leading questions (see, e.g., testimony of “James Morgan”[9/8/87 RP 94-98]).             Counsel asked noquestions of Lori “Logan” or Gail “Morgan” about their strenuous leading of thechildren, their belief that this was a so-called Satanic Ritual Abuse Case,their rewarding their children for “telling” by buying them toys, or theirpersistent belief that there were dead children that had been hidden somewhereby Petitioner and many others.  Instead, counsel argued that he should be ableto present to the jury their opinions that the police manipulated theirchildren (they felt that Krause and others badgered their children into falserecantations of murder and ritual abuse charges).  The trial court properlyruled that these were inadmissible opinions since the parents were not presentduring the interviews.  9/8/87 RP 140.             Counsel finally toldthe court that he did not want to ask either the parents or the children whatthe children said outside of court.  He said that he did not see how it wasrelevant that “Chuck”, after being questioned over and over by Lori “Logan” whohad just bought a book on “Satanic Abuse,” indicated during an interview thatPetitioner killed children and buried them in a junkyard.  9/17/87 RP 103.             Counsel never sought toglean from either Detective Krause or Nelson what interview techniques theyused, or why they used them.  He never sought to confront either Nelson orKrause about the improper investigative techniques that are readily apparentfrom the investigative reports given to him.  Counsel failed to object to theState’s denial of discovery regarding missing reports of interviews betweenOfficer Nelson and Ms. “Morgan”.             Counsel failed to graspeven the most basic potential defense strategies for the case.   This isvividly demonstrated by his ignorance of the circumstances surrounding theinvestigatory phase.  Counsel told the court he did not want to call anychildren to say that they had never mentioned Petitioner during any of thenumerous February interviews, because there was “no evidence presented in thiscase that they did mention her originally.”  9/17/87 RP 181.             The trial court,however, understood the relevance.  It informed counsel – to no avail – that itwould indeed be relevant and admissible evidence to call witnesses who wouldtestify that Petitioner was not mentioned either around the time of thesupposed molestations, or later during the first wave of parental and policeinterviews.  9/17/87 RP 180-181.  Still, counsel failed to act.  Counsel didnot even expend the monies allotted by the trial court to consult with anexpert on the issue of directive interview techniques. C.                     Testimony of Kirk and Jennifer Malcom;Jennifer’s Recantation             The child witnessesdirectly presented by the prosecution were Kirk and Jennifer Malcom.  Theirtestimony deviated in material respects.  Jennifer, for example, said thatnothing had happened outdoors at the “fort” made by Kirk and Ryan Binford,while Kirk testified that much of the alleged abuse he described took placethere; he told the jury that Petitioner directed elaborate sexual activityinvolving six or seven children and herself while out of doors, near an areathat was occasionally visited by neighbors.  9\14\87 RP 160, 167; 9\15\87 RP112.             Jennifer’s testimonyconsists almost entirely of one- and two-word answers to detailed questions bythe prosecutor, whose voice tells the story. See 9\15\87 RP 95-122 and AppendixG, esp. pages 42-46.             She has recantedentirely her accusations against her mother made at trial, and now tells howshe was badgered and duped into making them.  See recantation  of JenniferMalcom, attached hereto as Appendix L.  She states that she did not understandthe word “sexual” and was confused about its meaning, saying: “I started tothink that when my mom hugged me or touched me in the bathtub, that was wrong .. . and it was just the way Sharon Krause was questioning me that made me startthinking that any kind of touch was a “bad touch.”  Appendix H, p. 2.  Jenniferdescribes the questioning done by Sharon Krause, saying: “I remember her . . .keeping me for what seemed like forever.  She kept asking me and asking me ifmy mom did this to me or that to me, talking about things that I had a hardtime understanding.”  Appendix H, p. 3.             Relentless andintimidating interrogation tactics can be recognized in Jennifer’s descriptionof Krause’s approach: “When I kept telling her “no” she got mad at me.  Shewould almost beg me to answer her in the right way; it took a while to see whatshe wanted me to say . . . which meant agreeing to all of the accusations shewas making against my mom.”  Appendix H, p.3.             According to Jennifer,Krause resorted to threats and bribes to extract disclosures of sex abuse: “She even told me that if I wanted to see mom again, I needed to help Sharon help my mom by going along with her questions.  After many hours and manyinterviews, I decided to tell her what she wanted to hear simply to get her offmy back, so that I could get home to my mom.”  Appendix H, p. 4.             Jennifer’s recantationis buttressed by the coercive and suggestive nature of her interviews.  SeeAppendix G, p. 45.  Her first “accusations” contain material gleaned from “ChuckMorgan” that was later recanted.  Ibid .  A close look at the officialrecords of her interrogations by Sharon Krause, as well as Krause’s otherinterviews, shows how determined she was to obtain confirmation from Jenniferof their scenario.             The other witnessagainst Petitioner was her son Kirk.  He had been removed from Petitioner’scustody when the charges first arose in late January, 1987, and lived with hisfather thereafter.  See Appendix F, CCSO Utility Report of 1/30/87, p. 4.  Kirk acknowledged at trial that for months he had never mentioned his mother’s allegedinvolvement in sexual activity with the children or himself.  9/15/87 RP 5-6, 17.  He did, however, as noted earlier, have numerous counts of rapehanging over his head.  At the time he accused his mother, he had not yet beensentenced.  After persistent efforts, Krause finally succeeded in obtainingaccusations from Kirk against Petitioner on April 22, 1987.  See Appendix F, CCSO Utility Report, 4/22/87, by Det. Krause; see also 9/15/87 RP 5-6; seeAppendix G, at pages 46-49.  Ultimately, he received six months in juvenilehall as punishment.             The prosecutor mademuch of the fact that Kirk described actual details of the sex act.  See9\21\87 RT 65, 68.  This should not have been surprising, however, because healso testified that he had been taught sex education in the 7th grade; [8] that he had been shown a very explicit pornographic film by Ron Cole, ateen-ager who had molested him earlier (9/14/87 RP 217-218), and had found andread Playboy magazines in his father’s house, and showed them to Ryan Binford.  9/14/87 RP 15.              Dr. Bruck closelyanalyzes the official pressures on Kirk and his shifting statements as to whatsupposedly occurred, saying:  “It is possible that Kirk’s allegations were . .. false and were the result of the coercive interviewing procedures but alsoreflected a motivation to lie.  Possibly Kirk thought (or was told) that by helpingthe police, his sentence could be reduced or his status in the current facilitycould be changed.  Certainly, some of his allegations are suspect due to a lackof evidence . . . and these very allegations were recanted a month previouslyby “Chuck Morgan” . . . There is no doubt that he is an unreliable witness.” Appendix G, p. 49. D.                     Unchallenged and False MedicalEvidence             The prosecution reliedheavily on medical evidence of an examination of Jennifer done by Dr. BrigitteMengelberg which the jury was told established that she had been repeatedlysexually abused. [9]  However, it is now clear that Dr. Mengelberg’s testimony was grossly misleadingand that she was unqualified to render any opinion in this case.             Dr. Steven Gabaeff is aBoard-certified diplomat in emergency medicine and an experienced physician whohas examined thousands of children.  For years, he has been the consultant tothe San Diego County District Attorney and was their architect of protocols forthe proper physical examination of children suspected to have been sexuallyabused.  Dr. Gabaeff has reviewed all the medical reports prepared in thiscase; the color photographs placed into evidence (attached hereto as AppendixJ1 and J2); and Dr. Mengelberg’s trial testimony.  He concludes that there isnothing whatsoever in these materials showing any evidence of sex abuse, andexplains why.  See Declaration of Dr. Steven Gabaeff, attached hereto asAppendix K.             Dr. Mengelbergtestified that Jennifer had lax sphincter tone that was probably the result ofchronic rectal penetration.  For reasons that remain unclear, Dr. Mengelberghad placed Jennifer under a general anesthetic to perform a genitalexamination, yet never attempted to follow up to see if the results wereduplicated when Jennifer was not totally sedated.  As it turns out, theevidence upon which she relied for her conclusions about chronic rectalpenetration was the predictable and expected effect of general anesthesia.  Dr.Gabaeff states: “It is an  egregious act of bias and incompetence to drawdiagnostic conclusions regarding the laxity, shape and muscle tone of bodyorifices from observations made while am patient is under a generalanesthetic.”  Appendix K, p. 9.             Dr. Gabaeff shows thatDr. Mengelberg’s methods of examination guarantee that her conclusions meanabsolutely nothing.  “In fact, I would go so far as to say that the reliabilityof any such conclusions is practically zero.  The failure to corroborate anyfindings noted in the operating room with an examination of the child while sheis awake is negligent and inexcusable.”  Appendix K, p. 8.             Furthermore, thephotographs (Appendixes J1, J2) clearly demonstrate that even under generalanaesthetic Jennifer’s anal opening is normal, and that Dr. Mengelberg’stestimony that Jennifer’s hymen was “completely dilated and gone” (9\14\87 RP74-75) is flatly refuted by the photograph showing the presence in Jennifer ofa normal hymen of normal size. Gabaeff remarks: “[P]hotograph O1 . . . of thegenitalia of the child clearly demonstrates the presence of a normal hymen ofnormal size for a nine-year old child.”  Appendix K, p. 10.  “Dr. Mengelbergsomehow overlooked a hymen that is clearly visible on her photograph.”             He also disputesMengelberg’s testimony regarding the texture and color of the vaginal tissues,and the remnants of small lacerations.  “This is consistent with superficialtrauma secondary to a fall that had taken place quite recently, and notconsistent with sexual abuse months earlier.”  Appendix K, p. 12.             Dr. Gabaeff alsodemonstrates that Dr. Mengelberg’s testimony in this case was inexcusablybiased, and her opinions entirely unsupported, and largely refuted, by theavailable evidence.  He finds it especially disturbing that Mengelberg’snarrative “fails to apply standard conventions in medical terminology thatmandate the use of ‘alleged’ in describing acts reported by the patient andfamily . . . apparently [reflecting] an inappropriate underlying belief thatthe “history” of abuse was true.  For example, it flatly stated that Jenniferhad been abused for six years.”  Appendix K, p. 13-14.             A clear example of theextent to which Mengelberg was misinformed is illustrated by the fact that herreport states that “all previous children have sustained anal penetrations.” See Appendix I.  Had Krause actually provided Dr. Mengelberg with the medicalreports of the examinations of the four boys, Dr. Mengelberg could not havemade this statement.  see Appendix K, p. 14; medical reports, attached heretoas Appendix L.  In fact, Detective Krause deliberately supplied Dr. Mengelbergwith false information; she knew or should have known that the reports eitherreflected no traces of anything suggesting sexual abuse, or reflected markingsthat were then ambiguous but are now known to be present in substantial numbersof non-abused children.              The medical reports ofthe boys allegedly abused were actually exonerating evidence.  In light ofstatements attributed to them by their mothers that they had had screwdriversrepeatedly inserted into their rectums, the boys were medically examined inearly February of 1987, before Jennifer’s examination.  Two of the boys show nophysical signs of any type.  Small markings were reported in two others thatwere ambiguous at the time, but are now known to be common in all children,abused or not.  Appendix K.   No evidence was found on any of these boysindicating that they had been sexually abused.               In addition, CCSOreports make clear that “Michael Richards” was also examined for physicaltraces of sex abuse, and that no traces were found.  See Appendix F, CCSOUtility Report, 2/18/87, by Det. Nelson.             None of thisexculpatory medical evidence was placed before the jury by counsel forPetitioner.  Therefore, counsel not only failed to present evidence to the jurywhich showed that it was highly unlikely that screwdriver penetrations reallyhappened, but counsel made no challenge at all either to the inflammatory anderroneous testimony of Dr. Mengelberg or to her inadequate qualifications torender it.  Finally, counsel did nothing to attack the complicity of SharonKrause in developing this false and misleading medical report by supplying Dr.Mengelberg with misleading information regarding both Jennifer and otherchildren who had been medically examined.  In sum, counsel did nothingwhatsoever to impeach this vulnerable but devastating “scientific” testimony. To the extent that any of Dr. Mengelberg’s testimony was inculpatory at thetime she appeared, normative studies done since Petitioner’s trial clearly showthat the physical races she labeled as evidence of sex abuse are present inmany, or even most, all children of Jennifer’s age.  Petitioner was actuallyand substantially prejudiced by this supposedly objective corroboration of hertrial testimony. E.                     TraumaEvidence             Despite his earlierharsh assessments of them as manipulators, the prosecution called Lori “Logan”,Gail “Morgan”, M’yliss “Richards”, and Terri and David “Mason” to testifyregarding behavior by their children.  After their testimony Dr. Kevin McGovernwas called as a witness.  His qualifications as an expert in the area ofdiagnosing and treating child sexual abuse was established at length, and notquestioned by counsel for Petitioner.  9\14\87 RP 12-18.  He presented to hejury the current state of knowledge on these topics, and told them that in theprevious eight years there had been “much research, quantifiable research” onchild sex abuse and its related symptoms.  9\14\87 RP 20. as a result of thisresearch, there were characteristic of children’s behavior related to child sexabuse that have gained general acceptance in his profession, and were relied onfor diagnosis and treatment. 9\14\87 RP 23.  After a lengthy hypotheticalquestion premised on the parents’ testimony of their children’s behavior, Dr.McGovern testified that these behaviors were caused by some form of trauma, andthat “you normally see these types of symptoms in children where there’s beensome 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.”  9/14/87 RP 39.             Counsel did not ask Dr.McGovern to describe the “research” on which his views were founded.  Had hedone so, he would have learned that such research did not exist, nor was there– or is there – any consensus of the type described by Dr. McGovern.  Surveysdone before and after Petitioner’s trial show that there is no consensus at allas to what behaviors are related to sex abuse, and that there is no research,quantifiable or otherwise, showing that the above-described symptoms arerelated to abuse. IV.   PETITIONER’SDEFENSE [10] [11] [12] [13]   Petitioner’sdefense was brief, lasting less than one day.  She elicited testimony from herex-husband, from members of the Binford family who had lived with her, and fromKate 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.  See testimony of Katherine Sullivan, Donnaand Ryan Binford, Rebecca Heinze and Phillip Bellner, 9/16-9/17/87 RP, passim .             Petitioner alsoappeared on her own behalf, and strongly denied that any of the charged eventshad taken place.  9/17/87 RP 15 et seq.  She placed before the jury evidencethat her life was an open one, and that the events described, such as sexualorgies out of doors involving herself and eight children, were highlyimplausible.              What she did not do,however, was counter in any way the state’s “experts.”  Sharon Krause waspresented as an expert in investigation.  9\16\87 RP 43-44.  Dr. Mengelberg waspresented as a medical expert on the physical traces left by sex abuse.  9\14\87RP 67.  Dr. McGovern was presented as an expert on child sex abuse victims, andtheir symptoms and treatment.  9\14\87 12.  Not only did counsel not counterthese very vulnerable witnesses with experts of his own, but he did not do eventhe most rudimentary cross-examination.              He asked no questionsof Krause or Nelson about their investigative techniques either in general oras applied in any interview.  He did not notice material contradictions inKrause’s trial testimony, let alone the police reports.  He did not notice Dr.Mengelberg’s lack of qualifications or the manifest bias and mistaken beliefsabout the earlier examinations contained in her report.  There is no record ofhis having consulted his own doctor, or having asked the court for funds to retainone to at least examine Dr. Mengelberg’s report and photographs.  Finally, hefailed to make Dr. McGovern specify what was the research on which he relied.             Without experts tocounter these witnesses, and without even questions that might arouse skepticism,the case was not just a credibility battle between Petitioner and herchildren.  It was Petitioner against the professions as well.  For a jury thatwas not aware of the bizarre way this investigation had started or how bizarreit became, the choice of whom to believe was easy. A.                     Sentencing             After Petitioner wasconvicted, she was referred to Dr. Steven Jensen for apsychological/psychosexual evaluation.  Dr. Jensen conducted a thoroughexamination.  He interviewed Petitioner and administered a battery of ninetests to her. He also referred to a second polygraph that was performed thatwas performed by Roy Jaul as part of his center’s evaluation process, not inreference to any specific acts Petitioner was accused of, but rather related toher history of sexuality in general, i.e., her first sexual related contact,sibling sexual exploration, age of virginity loss, etc.  SeePsychological/Psychosexual Evaluation of Marilynn Malcom by Dr. Steve Jensen, 12/7/87, attached hereto as Appendix R.             Dr. Jensen concludedthat there was a notable lack of data derived from conventional assessmenttechniques to support a diagnosis of sexual deviancy.  He expected moresymptoms of delusional thinking, somatization, and antisocial attitudes, but“neither objective nor projective personality tests revealed anything in thisregard.”  A mental status examination likewise revealed nothing significant. “Were evidence of her misconduct merely compelling, this woman might appear tobe innocent.  Her act is that good.  Unfortunately for her, the evidence is sooverwhelming that any temptation to be swayed is short-lived.”  Appendix R, p.8.             The “overwhelming”evidence, however, consisted of the medical reports described above, as well aspolice reports and therapist Karen Gladyschild’s reports containing materialthat the prosecutor himself had characterized on the record as false.  See,e.g., Jensen’s summary of the “facts” of this case, which include allegationsthat Petitioner urinated and defecated on the children, and they on her, andshe gave them intramuscular injections which caused numbness, p. 2.  Forreasons never explained in court, the prosecutor had supplied the therapistwith allegations that he had earlier represented in open court to be untrue. It was solely on the basis of this false material that the psychologist labeledPetitioner as a pedophile; this report was an intrinsic part of the materialconsidered by the trial court in imposing Petitioner’s sentence.             Counsel, however, didnothing to object to or challenge any aspect of the sentencing report.  Thereport, as noted by this Court, was never made a part of the record on appeal.             Since herincarceration, Petitioner has been an excellent inmate, and gained manyadherents within the correctional system and in the outside community duringher time in prison.  Psychiatric examinations done within prison show no signsof pathology.  See documents from prison, attached hereto as Appendix T.             This petition istimely.  Petitioner has done everything within her power to obtain vindicationof her innocence since being incarcerated.  She has been hampered in herefforts by the loss of all police reports by her trial counsel and herinability to obtain a copy of all the clerk’s papers in her case.  (Seedeclaration of Marilynn Malcom, Appendix S.  She was able to obtain assistancefrom investigator Leigh Hearon, who eventually obtained a set of redactedpolice reports from the prosecutor’s office; that set is attached to thispetition.  She has written to the governor’s office and to all her legislatorsin an effort to obtain support.  Keenly aware of her lack of knowledge andresources, she has also tried in every way she knew how to obtain counsel.  Inearly 1996, her daughter wrote to her, and recanted her testimony.  Sheobtained a clemency hearing later that year, and in April of 1997, she wassuccessful in obtaining counsel; present counsel agreed to represent her.             In the course ofinvestigating this complex case, a substantial number of material facts were discoveredthat buttressed Jennifer’s recantation.  This newly discovered evidencedemonstrated that:             (1)  Petitioner wasconvicted on the basis of false and unreliable evidence created by coerciveinterviews;             (2)  the statecommitted misconduct in the preparation and presentation of this case; and             (3)  trial counselfailed to investigate readily available leads that would have undermined theprosecution’s case.              The investigationfurther revealed recent developments in the area of medical evidence regardingthe physical traces of sex abuse, and research by cognitive psychologists whichestablish the falsity of the expert testimony against Petitioner.  These factshad never been presented to any court, and have been discovered and presentedas rapidly as reasonably possible to the appropriate Washington state court. See Declaration of Michael Snedeker, attached hereto as Appendix U.             The Court of Appealdismissed the petition on procedural grounds, as well as on the merits..  In sodoing, it committed errors regarding both the appropriate and actual timing ofevidence-gathering and presentation in violation of federal and state law (seeRAP 13.5(b)(1), and in failing to consider the whole record in its evaluationof the weight of Jennifer Malcom’s recantation.  The court also erred in itscharacterization of what Petitioner should have done, and when she should havedone it.  See RAP 13.5(b)(2).              By its proceduraldefault of Petitioner’s petition, the Court of Appeals has effectivelyrewritten the applicable statutes (RCW 10.73.090 and 10.73.100) to require allWashington  prisoners to keep up with a vast body of scientific literature aswell as evolving case law, and file their petitions within one year of theappearance of research that undermines material evidence against them, even ifit appears in journals to which they have no access, and even if they have nocounsel.              The Court of Appealsrejected Petitioner’s contentions that were based on the declarations of Dr.Maggie Bruck and Dr. Steven Gabaeff on grounds that  “[n]othing in either ofthese reports indicates that they could not have been submitted years ago.”Order, p. 5.   This statement is factually incorrect.  Most of the studiescited by Dr. Bruck in her declaration have been published in this decade.  Oneof the most crucial studies was one that examined the effect of combiningvarious directive interview techniques that had before been studied only inisolation; the study showed that using a combination of improper techniquescould generate false charges of touching from children within minutes ofthe interview’s inception.  See Declaration of Dr. Bruck, attached to thepetition as Appendix G, p. 24.  That study was published in 1997.  Ibid.             As Dr. Bruck noted, “inthe past decade there has been an exponential increase in research on theaccuracy of young children’s memories and the degree to which young children’smemories can be molded by suggestions implanted by adult interviewers.” Declaration of Dr. Bruck, p.3.  While there were certain defense advocates whowere available to testify on behalf of the accused in the 1980's, there werestrongly differing clinical views about whether children could be led to makefalse statements about having been improperly touched.  In 1990, the Washington state court upheld a trial court’s refusal to permit psychological testimonyabout the effects of suggestive interviewing, in part because it had not beenshown that the expert’s position on child interviewing had been accepted by thescientific community. State v. Swan , 114 Wash. 2d 613, 656, 790 P.2d 610(1990).             Now, however, the viewsexpressed by Dr. Bruck in her declaration are undisputably accepted by therelevant scientific community.  She was co-author of a book summarizing theemerging consensus published by the American Psychological Association in1995.  In 1998, that same organization published Investigative Interviews ofChildren by Debra Poole and Michel Lamb, which makes very clear that asolid consensus based on well-designed research now exists regarding proper anddangerously improper interviewing techniques of children.              Dr. Bruck carefullyreviewed the investigative reports filed in this case, and conclusively showsthat: (1) the charges presented against Petitioner were generated by exactlythe same techniques used to generate other accusations against her that theprosecution itself admitted were false; and that (2) these techniques andcircumstances create a significant risk of generating unreliable and falsecharges of child sex abuse.  Her work was triggered by, and strongly supportsthe recantation of Jennifer Malcom (attached to the petition as Appendix J). It was not challenged by Respondent.  In turn, it is corroborated by theundisputed evidence proffered by Dr. Steven Gabaeff that the trial testimony ofDr. Briggite Mengelberg that Jennifer Malcom had been chronically penetrated inboth her anus and vagina was false.  See Declaration of Dr. Steven Gabaeff,attached to the petition as Appendix K.  Medical evidence by itself issufficient evidence to show that a child has been abused.  State v. Swan , supra , 114 Wash. 2d at 640.  Dr. Gabaeff’s declaration is based in parton normative studies of children’s anatomy that were published in 1989 and1991.               Accompanying the emergenceof a consensus about the striking effects on children’s reliability produced byinsistent and directive adults is a change in the relevant law.  It was notuntil Idaho v. Wright , 497 U.S. 805 (1990),  that the U.S. Supreme Courtwrote that prior questioning of a young child by adults with a preconceivedidea of what had happened could create unreliable evidence, and reversed aconviction because an overly directive interview led to untrustworthy hearsaystatements.  The first state case to reverse a conviction because of improperlydirective interviews of which Petitioner is aware is State v. Michaels ,642 A.2d. 1372 (1994).  See also, In re A.E.P. and W.N.P. , 135 Wash.2d208, 227-229 (1998); State v. Carol M.D. and Mark A.D. , 89 Wn. App. 77,89-90, 948 P.2d 837 (1997).  Thus, there has also been a significant change inthe law since Petitioner filed her initial PRP.  See RCP 10.73.100(6).             It is not clear fromthe Court of Appeals’ Order how Petitioner should have proceeded.  Should shehave kept up with the evolving medical research, and challenged Dr.Mengelberg’s conclusions on her own in 1992?  Should she have then followedwith a separate successive petition in the mid 1990's regarding new case lawand research by cognitive psychologists regarding the impact of theinvestigatory techniques employed in this case?  Should she then have filed afourth petition when her daughter reached age 18, left her father’s house, andrecanted her testimony against her mother?              Petitioner is not acapital defendant, and has never had any interest in delaying theseproceedings.  She has moved as speedily as is reasonably possible ininvestigating the case in light of the new facts presented by Jennifer’srecantation, and filed her petition well within one year of obtaining thedeclarations of Dr. Bruck and Dr. Gabaeff.  Her additional claims regardingprosecutorial misconduct and the ineffective assistance of counsel are nothinglike those she previously presented, but present evidence of actual andsubstantial prejudice that rise directly from the newly discovered evidencepresented in this petition.             The Order DismissingPetitioner’s petition overlooked controlling state law that should have led toa decision on the merits.  RCP 10.73.100 provides for a decision on the meritsof a collateral attack when “later developments bring into question thevalidity of petitioner’s continuing detention.  Exceptions are made forcircumstances which impact directly on the guilt or innocence of thepetitioner, such as the discovery of new evidence, RCP 10.73.100(1).”  In reRunyan , 121 Wash. 2d 424, 431 (1993).   “The statute also leaves openavenues for pursuing collateral relief when subsequent changes in the law couldapply retroactively to petitioner’s case, RCP 10.73.100(6), which is acircumstance which could not always be readily be ascertained within one yearof final conviction.” Ibid .             Petitioner has utterlyundermined the evidentiary basis for her convictions, and shown that she isprobably innocent of all charges against her.  The Court of Appeals’ refusal toconsider any of the evidence proffered by Dr. Bruck and Dr. Gabaeff violatesthe federal constitution’s guarantee of the right to due process of law (see post ),as well as the applicable state law regarding personal restraint petitions.  So, too, its refusal to consider the issues of constitutionally ineffectiveassistance of counsel and governmental misconduct, despite the wealth ofspecific and detailed new evidence, including evidence that could not have beenpreviously presented, violated Petitioner’s constitutional rights. (See post)             The Court of Appealfound Jennifer Malcom’s recantation untimely as well as insufficient to warrantthe reversal of any of Petitioner’s convictions.  Although the Court of Appealsconcluded that the declarations of Dr. Bruck and Dr. Gabaeff were not “newlydiscovered,” it did not, and could not, contend that they were untimely.  Bothwere filed with the court within months of their preparation.  They are anessential part of Petitioner’s petition, no less important than the recantationof Jennifer.  And the affidavit signed by Jennifer was signed in February of1998, and contained matter regarding how she was interrogated by Sharon Krausethat had not been deemed important until the work of Dr. Bruck had beenconcluded in the summer of 1997.  The Court of Appeals violated settled statelaw as well as the federal constitution’s guarantee of due process of law bydenying Petitioner a decision on the merits because the petition was “untimely.”              The Court of Appealsconsidered the weight of Jennifer’s recantation without considering in any waythe detailed and extensive evidence proffered by Dr. Bruck and Dr. Gabaeff, orthe undisputed argument by Petitioner showing the clear errors of Dr.McGovern’s testimony.  Appendix *, pp. 5-6.  It states that Kirk’s testimony“corroborated” the evidence of Petitioner having abused “Chuck”, “Mark”, and “James”,but overlooks the fact that there is no such evidence at all other than Kirk’sown uncorroborated testimony.             The only part of theprosecution’s case that remains is the testimony of Kirk Malcom.  It issquarely contradicted by Jennifer, because according to Kirk, she was presenton every occasion that the children were molested.  Kirk, however, hadstrenuously denied any such molestation until he was about to be sentencedhimself, and until his father urged him to testify against Petitioner, becauseto do so would “help” her, as well as himself.  See petition, p. 12, fn. 6. His testimony now has no independent corroboration.  Appendix A, pp. 5-6. Nothing remains to the prosecution but the uncorroborated and suspectstatements of Kirk.               In its discussion ofthe weight of Jennifer’s recantation, The Court of Appeal inexplicably statedthat it was rejecting the recantation in its entirety because it “does notclearly entitle Malcom to a new trial on most counts.” p. 5.  Why not anew trial on those counts which it did undermine?  Since when is a court’sbelief that there is sufficient reliable and unchallenged evidence to supportmost counts grounds for affirming all counts?              State law as well asfederal law provide that a recantation, like other newly discovered evidence,must be evaluated in the context of the whole record, including other evidenceof the crime, if any, and in light of the circumstances surrounding therecantation. See State v. Smith , 80 Wn.App.462, 472, 909 P.2d 1335(1996), reversed on other grounds, 131 Wash. 2d 258,930 P.2d 917;  State v.Macon , 128 Wash. 2d 784, 798, 800-802  911 P.2d 1004 (1996 ); State v.Rolax , 84 Wash. 2d 836, 838, 529 P.2d 1078 (1974), overruled on othergrounds, Wright v. Morris , 85 Wash.2d 899, 540 P.2d 893 (1975);  Statev. Eder , 78 Wash. App. 352, 358-361, 899 P.2d 810 (1995).  The Court of Appealserred in refusing to consider the weight Jennifer Malcom’s recantation in lightof the other material and relevant evidence before it.  The court’s dismissalof Petitioner’s petition was a V.   CLAIMSFOR RELIEF A.         PrejudiciallyIneffective Assistance of Counsel             Petitioner wasconvicted in violation of her right to due process of law, to present adefense, to confront and cross-examine witnesses against her, to a fair trial,and to effective assistance of counsel, as guaranteed by the Sixth, and Fifth, Fourteenth Amendments to the United States Constitution, by governmental misconduct, in that both the prosecutor and the chief investigative officer supplied materially deceptive information to experts who testified against Petitioner, and presented false reports to counsel and false testimony to the jury regarding how the investigation against Petitioner was conducted.             Facts in support ofthis contention include the following: 1.                    Petitioner hereby incorporates all facts, arguments, and authoritiesset out elsewhere in this petition. 2.                    Sharon Krause’s failure to provide Dr. Mengelberg with medicalreports showing that other alleged victims showed no traces of having beenabused, combined with her false representations to Dr. Mengelberg that thechildren had indeed been abused, and that Jennifer Malcom had been abused “forsix years,” was a successful effort to misinform Dr. Mengelberg and improperlybias her towards findings which are now known to have been false. 3.                     Theprovision by the prosecutor of damning information he had previously statedthat he knew to be false regarding Petitioner’s led directly to an unfavorablepsychological report that adversely influenced the length of Petitioner’ssentence. 4.                     Thereare significant deviations between the witness encounters described in thestate’s chronology of witness contacts and the utility reports provided toPetitioner, and inaccuracies in the reports themselves.  These reports showthat it is highly probable that Detective Krause attributed to the childrenwords that were actually her own, both in her written reports and in her trialtestimony.  5.                     Theprovision of false and misleading information to Petitioner’s counsel and tothe court by the prosecutor and the chief investigative officer had asubstantial and injurious effect on the verdicts in this case, and renderedPetitioner’s trial fundamentally unfair. C.         TheCase Investigators Employed Improperly Coercive and Directive InvestigativeTechniques Highly Likely to Generate False and Unreliable Accusations               Petitioner wasconvicted in violation of her right to due process of law, to present adefense, to confront and cross-examine witnesses against him, and to effectiveassistance of counsel, as guaranteed by the Sixth, and       [3]  The Binford family testified in support of Petitioner at trial.  See 9/16/87 RP 56 et. seq.            [4]   Kate Sullivan testified attrial in support of Petitioner.            [5]   A chronology ofinvestigative materials, and the materials themselves, is attached hereto asAppendix F.            [6]   This April 6, 1987 , report by Nelson is notincluded in the chronological interview and contact summary of theinvestigation provided by the CCSO which appears at the beginning of AppendixF.            [7]  Kirk’s testimony describinghis first accusation against his mother is as follows:  “Question:  Now youtold the jury, when Mr. Bennett [defense counsel] was questioning you, that youtalked to Sharon for about an hour and denied anything; and then talked to yourdad, and then talked to Sharon again.  Is that the way it happened?”  Answer:“Yes, that’s correct.”  Question: “What did you and your dad talk about?” Answer:  “Well, he said – he told me that it would get her help if, you know,these things – if something was happening; it would help me so I could get outof that situation.  And then I thought about it for a while.  And then I go‘Okay, that sounds like a good idea.’  And then I went to the bathroom and cameback and talked to Sharon .”  9/15/87 RP 17.            [8]   “Question:  Okay.  And whywould you go up and down?  Answer: Just – I don’t know really – just that’s theway you have sex.  Question:  How do you know that?  Answer:  Because when Iwas in the seventh grade they taught us about it.”  9/14/87 RP 187.            [9]   Dr. Mengelberg’s writtenreport regarding Jennifer is attached as Appendix I.            [10]   The prosecution’s caselasted over four days and defense case lasted less than one.            [11]   Of the seven questionsrelated to the charges at bench, Petitioner’s denials were assessed astruthful.  See Declaration of Marilynn Malcom, Appendix S.            [12]   This Court noted thatcounsel stipulated to the entry of the psychological exam, and said: “[t]hefailure to object to the admission of evidence in the sentencing hearing waivesthe objection.”  Division II, Unpublished Opinion, February 13, 1991 , p. 11.      [13]  Ceci & Bruck, Jeopardy in the Courtroom , American PsychologicalAssociation (Washington, D.C.:  1995)            [14]   Although researchers havenever been able to identify common reactions that children have to sexualabuse, experts were quite willing to testify that a child had been sexuallyabused based on specific symptoms in the 1980s.  The behavioral grounds ofchild complainants offered by experts for how they arrived at their diagnosesvaried widely, and occasionally were just the opposite of what other expertsrelied on.  See, e.g. , State v.Maule (Wash. 1983) 667 P.2d 96(sleep disruption, loss of appetite, withdrawal, regression, fear of beingalone with a particular person, clinging to mother); State v. Myers (Minn. 1984) 359 N.W.2d 604, 608-609 (poor mother-daughter relationship, fearof men, unusual sexual knowledge, looking and acting older); State v. Kim (Hawaii 1982) 645 P.2d 1330, 1333 (fear for safety, depression, anxiety,negative view of sex).            [15]   See Nathan, D. &Snedeker, M. Satan's Silence:  Ritual Abuse and the Making of a Modern AmericanWitch Hunt (Basicbooks, 1995)See Nathan, D. & Snedeker, M. Satan’sSilence:  Ritual Abuse and the Making of a Modern American Witch Hunt(Basicbooks, 1995) (analyzing the origins and rapid growth of false charges ofritual sex abuse during the 1980s). Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help A Video About the Malcom Case Get the Flash Player to see this content.   The material in this video was orgininally broadcast on KATU-TV, Channel Two, in Portland, Oregon. Copyright Fisher Communication. We wish to thank News Director Don Pratt for giving us permission to post this video. Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice Sep 16, 2011 1   The Case of Marilynn (Lynn) Malcom Falsely Accused, Wrongfully Convicted Home A Video Search This Site How You Can Help Summary of the Clemency Petition Clemency Petition Outline. I Introduction (pages 1, 2, 3) In which Mr Snedeker hits the nail on the head on his analysis of what the political and psychological climate was in the 80s and 90s. The recognition of the reality of child abuse, physical, psychological and sexual took us out of our indifference, but the problem was that: “ 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 eruption 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 parents as within the continuum of normal development became pathologized, and labeled as evidence of sex abuse (see, e.g., Ilg, F., et. al., Child Behavior. New York, Harper & Row, 1981). II Background (pages 3, 4) This section contains a description of Lynn Malcom’s life previous to the accusation, including her educational background, her marriage and divorce and her opening a day-care center. III How the Charges Arose : A Chronology of Events (pages 4, 5, 6, 7, 8, 9) This section tells the story of the neighbors and the kids and tales of alleged improprieties, which started the investigation. Sharon Krause’s interviews and how the investigation slowly turned to Lynn Malcom. Tells of her son’s arrest on six charges of rape and her own children’s repeated denial of any wrongdoing. Tells of the children’s improbable and impossible tales (the children alleged multiple murders, moved dead people, and much more, all suppressed during the trial). B Analysis of Investigation (pages 9,10, 11) Dr Maggie Bruck gives her expert opinion stating that all of the Sharon Krause interview techniques were improper to the extent that none of the testimony was reliable. Must read analysis. Most of the records and notes of “spontaneous” revelations and accusations were destroyed by the investigator, Sharon Krause. IV Consensus on False Charges : Published Research Indicates Significant Percentages of Charges of Child Sex Abuse Are False (page 11, 12, 13) Mr. Snedeker reviews some of the literature and cites the infamous Satanic Church case of Bakersfield, California. “ 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. The Attorney General 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." (Van de Kamp, Report on the Kern County Child Abuse Investigation, California Attorney General's Office, 1986, fit 6, p. 70, attached, hereto as Exhibit F.) Dangerous and Improper Interview Techniques Have Produced False Charges of Multi-Victim, Multi-Perpetrator Sex Abuse Cases .(pages 14) This section is basically a review of some of the literature citing some of the now infamous cases such as the McMartin case. Modern Consensus- False Charges Are A Reality (pages 15, 16) How the then new view that children don’t lie about such things or make things up under suggestion has been proven false. (Deborah Poole told us that she can get 30% of kids to say that an adult hurt some part of their body in less than a couple of minutes without any apparently improper suggestions. The testimony of these children is then judged to be completely reliable by other adults!) V Trial Exclusion of Testimony about or from Six of Eight Children Allegedly Abused (pages 16, 17, 18) The exclusion of the six children who were the first ones involved in this investigation was done to keep the insanity and absurdity of the children’s stories away from the jurors so as to keep the less apparently absurd charges uncontaminated by those kids’ stories. The fact that shared information was contaminating the investigation was well known to the police who repeatedly warned the accusing neighbors to stop meeting and discussing the case. Defense counsel did not raise this issue in the trial. Trial Counsel’s Failure to Investigate and Present a Defense (pages 18, 19, 20,21) Basically the defense attorney was incompetent and unprepared to offer any kind of defense at all. Here more evidence of the passing on of information from parent to child and to the other parent and child, corrupting the process of investigation is discussed again, and how the defense attorney made no use of this. “Counsel failed to grasp even the most basic potential defense strategies for the case”…. “Counsel told the court he did not want to call any of the children to say that they had never mentioned Ms. Malcom initially because there was “no evidence presented in this case that did mention her originally.” The trial court, however, clearly understood the relevance. It 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 around the time of the supposed molestations, or later during the first wave of parental and police interviews. Still, counsel failed to act.” There is much more that needs to be read here. Testimony of Kirk and Jennifer Malcom (pages 21, 22) Lynn’s son was under indictment for six charges of rape and, after his sister finally gave in to Sharon Krause’s pressure, realized with the “help” of his father, that accusing his mother would help him in his own case (which it did). Lynn’s daughter, Jennifer, recanted her testimony as a young adult. I have the DVD of the recanting and will be sending you a copy. Medical Evidence (pages 22, 23, 24) Dr Steven Gabaeff is the board-certified in emergency medicine. Dr Gabaeff was the architect for the protocols for the proper physical examination of children suspected of being sexually abused. Dr Gabaeff completely refutes any notion that there was any evidence of sexual abuse in the case of Lynn Malcom and explains why. Dr Mengelberg’s examination of Jennifer to determine how her anal sphincter responded lacked the control step of seeing how Jennifer responded when not sedated. Hence the evidence on which Dr Mengelberg relied was the predictable and expected effect of general anesthesia. Dr Mengelberg’s testimony that “Jennifer’s hymen was completely dilated and gone” is flatly refuted by the photograph showing a normal hymen. Very few doctors are really qualified to give an expert opinion about hymens. More about this on request. Evidence exonerating Lynn Malcom in regard to the boys whose testimony to police started the examination was not presented. Defense “counsel made no challenge”. Trauma Evidence (pages 24, 25, 26) Dr Kevin McGovern, who testified for the prosecution, testified as to the state of mind and behavior of the children. There is no research to back up the whole line of testimony that Dr McGovern invoked. Dr McGovern’s expertise was sharply questioned in the case of Pard V US and even rejected. Defense (pages 26, 27) Lynn Malcom’s counsel did not counter any of the state’s experts. Sentencing (pages 27, 28) Dr Jensen put the capstone on Lynn Malcom’s Kafkaesque trial when he decided that since Lynn Malcom had passed lie detector tests, had tested out psychologically as someone who was not a child molester in a battery of nine tests, and believing to be true police reports erroneously sent to him, reports judged as false by the DA, the police and the judge, decided that she was totally dangerous.. From the clemency petition: “ 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”. “It was solely based on this false evidence that the psychologist labeled Ms. Malcom as a pedophile.” VI Conclusion: Exceptional Circumstances of This Case Warrant Clemency (pages 28, 29) “Ms. Malcom has demonstrated that she is innocent of any crime whatsoever. She has now served a decade in state prison as model prisoner. She deserves to be spared any additional confinement and continues to be irreparably harmed by her incarceration. Her conviction and incarceration has damaged her children and has brought community shame and despair to a family of previously unblemished reputation. (See Letter of Marilynn Malcom to the Governor, 9/3/96, attached hereto as Exhibit U.) She is an extraordinary person and has kept her faith in God and her faith in our criminal justice system throughout an ordeal that would have crushed people of lesser moral strength. She is supported and loved by scores of individuals in her community, including her daughter. ,„...... She has demonstrated the unreliability and injustice of the process by which she was accused and convicted. Her case is an extraordinary one, within the meaning of the statute empowering this Board to make a favorable recommendation for clemency.” Legal Documents The Clemency Petition Snedeker's Letter Petition Summary The Petition Dr. Maggie Bruck's Analysis The Federal Habeas Corpus copyright 2010 National Center for Reason and Justice