John Swomley's Comments on the 03/21/05 Hearing

March 29, 2005

In an effort to continue including a report of the hearings from Bee's attorneys, here is my evaluation of our most recent hearing held on March 21, 2005.

It began with Capeless cross-examining Dr. Maggie Bruck. His questions were succinct and organized. I later found out that he copied some sort of model cross-examination of these types of experts from a district attorney resource manual. So that explained it.

Capeless' theory of the case is slowly coming into view. He seems to be arguing that the videotapes are irrelevant because all these children made prior, reliable disclosures. So whatever evidence can be gleaned from the videotapes is simply irrelevant to our underlying burden that there was a substantial miscarriage of justice. In short, he argues that Bee is guilty, his guilt is based on reliable disclosures, and nothing that happened after these reliable disclosures were made adds enough doubt to overturn his convictions.

Of course I think he is dead wrong, but it is a theory nevertheless—perhaps the best theory he has available, given the evidence. So, to the extent that he was advancing that theory, I think he got what he needed from Dr. Bruck. She admitted that the children were interviewed before they were videotaped, that she could not possibly know everything that was asked of them and every response that they gave, and that she had not reviewed materials concerning what took place after the children were videotaped so that she had no specific opinion about the children's trial testimony.

Of course, on rebuttal, I think I was able to clear up any misconceptions that Capeless may have created. For one, Dr. Bruck clarified that while the children may have made statements before being videotaped, none of them were reliable. At best, we have short summaries of what was asked and answered. As she stated on direct, people tend to report these events inaccurately, partly based on memory lapses and partly based on bias. So the only accurate and reliable statements that we have are those contained in the videotapes.

Secondly, building off of that, of course no one can know everything that was said to these children, or everything that they may have said, before being videotaped. But that only plays to the strength of our case since part of our argument is that these children were improperly influenced from the start so as to taint their subsequent testimonies. The videotapes only confirm that. Among other things, if these children had disclosed in the manner that actual sexually abused children do, there would have been no need to coax and prod them so much in the videos. According to Dr. Bruck, children who are actually abused will affirmatively disclose if asked properly.

Lastly, Dr. Bruck had asked us for only the materials leading up to the videotaping. And, we had only asked her to review the videotapes. We did not seek her opinion about the children's trial testimony. Granted, she had a general opinion that children can be so tainted that their statements are unreliable for years. But, again, that was not her role in this case. So when Capeless made it seem as if she had not been given all the relevant materials, he was conflating the fact that she was not given all the relevant materials for the entire case but was given all she needed for her testimony.

To the extent that Capeless tried to use Dr. Bruck's own writing against her, I think she adequately explained that he was both citing somewhat outdated findings and nevertheless taking them out of context.

In short, I don't feel as if Capeless discredited Dr. Bruck's testimony at all. He accomplished what he needed for his own theory, but left intact the powerful science/research which supports ours.

After Dr. Bruck testified, Capeless called Elizabeth Keegan. I had anticipated that she would offer much more than she did. I thought she might actually provide details of what was and was not done with the children to show that they did not make many of the mistakes Dr. Bruck claimed they had. Instead, it seems that she was called for two reasons. First, she could establish that the videotapes were used only to record the "reliable" statements the children had already made. She said that they had wanted to use them to substitute the children's testimony at the grand jury and were contemplating using them at trial. Secondly, she testified that only children who had made prior disclosures were videotaped. I think Capeless was trying to dispel the "witch hunt" theory by showing that they only pursued what they believed were good leads.

I don't think, however, he had to call her to advance those facts. But, since he did, I was able to take full advantage of having her on the stand. And she was a treasure-trove of knowledge. She confirmed that the District Attorney met with the children three or four times before trial and asked them questions. She also confirmed that anatomically correct dolls are no longer used by their office, though she had "no memory" of why or how that decision was made. I think Capeless was foolish for calling her, but it was a great opportunity to get testimony we would not otherwise have gotten.

At the end of the hearing, we took care of some housekeeping. We will return on April 21 to take testimony concerning trial counsel's ineffective assistance of counsel. This will basically consist of Bee and his mom, Bert, taking the stand. Knowing Bee the way I do, I think Capeless will make no headway and might actually hurt his own case. And, I think Capeless can only look like a jerk if he tries to cross Bert hard. So it should be another memorable day.

We have also solidified that final arguments will be May 19.

In terms of discovery, Judge Fecteau will be deciding this week whether we can subpoena documents from Cain, Hibbard concerning their relationship with Berkshire Medical and Mental Health. He also agreed to review our FOIA request in chambers, which means Capeless has to give him his entire file so he can determine whether we are entitled to see it.

Thank you for your support. I see a light at the end of this long tunnel.

John Swomley