Mimesis Law
21 November 2019

Do You Remember When I Took Your Deposition?

Feb. 3, 2016 (Mimesis Law) — The last jury trial I had as a practicing lawyer was a criminal case. I second-chaired my young law partner Jim Doyle. Jim is now a Nebraska state trial judge and president of the state trial judges’ association—a finer person I have never known.

Jim took a criminal case regarding a male school teacher who had been accused of sexually assaulting his five-year-old daughter and her friend, another five-year-old girl. Our client’s mother and father mortgaged their home to pay us what we thought then was a huge sum to defend their son, a former Marine and well thought of shop teacher at a local high school.

You probably don’t remember Peggy McMartin Buckey. She was at the center of one of the greatest injustices of the 20th century.  Here is a photo of that victim:

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Her case was unfolding in the early 1980s just as Jim and I were preparing the defense of our client. Later, an article in the New York Times described what happened to this poor woman.  Please hang with me, and read the long quote that follows because it provides critical context for the story I am about to tell.

Here is what you need to know about the “Devil in the Nursery”:

When you once believed something that now strikes you as absurd, even unhinged, it can be almost impossible to summon that feeling of credulity again. Maybe that is why it is easier for most of us to forget, rather than to try and explain, the Satanic-abuse scare that gripped this country in the early 80’s — the myth that Devil-worshipers had set up shop in our day-care centers, where their clever adepts were raping and sodomizing children, practicing ritual sacrifice, shedding their clothes, drinking blood and eating feces, all unnoticed by parents, neighbors and the authorities.

Of course, if you were one of the dozens of people prosecuted in these cases, one of those who spent years in jails and prisons on wildly implausible charges, one of those separated from your own children, forgetting would not be an option. You would spend the rest of your life wondering what hit you, what cleaved your life into the before and the after, the daylight and the nightmare. And this would be your constant preoccupation even if you were eventually exonerated — perhaps especially then. For if most people no longer believed in your diabolical guilt, why had they once believed in it, and so fervently?

Peggy McMartin Buckey, who died on Dec. 15 [2000], at 74, was surely still wondering. She was the paradigmatic victim of ritual-child-abuse hysteria: a middle-aged woman who worked in a day-care center run by her family and who had, until the day she was indicted, led an uneventful and unobtrusive life.

Buckey’s ordeal began in 1983, when the mother of a 2 1/2-year-old who attended the McMartin preschool in Manhattan Beach, Calif., called the police to report that her son had been sodomized there. It didn’t matter that the woman was eventually found to be a paranoid schizophrenic, and that the accusations she made — of teachers who took children on airplane rides to Palm Springs and lured them into a labyrinth of underground tunnels where the accused ”flew in the air” and others were ”all dressed up as witches” — defied logic. Satanic-abuse experts, therapists and social workers soon descended on the school and, with a barrage of suggestive, not to say coercive, questioning techniques (lavishly praising children who ”disclosed,” telling those who denied the abuse that they were ”dumb,” introducing salacious possibilities that children had never mentioned), produced increasingly elaborate and grotesque testimonials from young children at the school.

”Believe the children” was the sanctified slogan of the moment — but what it came to mean, all too often, was believe them unless they say they were not abused. It didn’t matter that no trace of the secret tunnels was ever found, that no physical evidence corroborated the charges (a black robe seized by the police as a Satanic get-up turned out to be Peggy’s graduation gown), that none of the kiddie porn the abusers were supposedly manufacturing ever turned up, despite an extensive investigation by the F.B.I. and Interpol, that no parents who stopped by during the day had ever noticed, say, the killing of a horse. It didn’t matter that most child abuse — which after all does exist in real and horrifying form — takes place not in day-care centers but in the home, indeed within the family. The prosecution charged forward nonetheless, with a seven-year trial that became the longest and, at a cost of $15 million, the most expensive criminal trial in American history. It resulted in not a single conviction, though seven people were charged in the McMartin case, on a total of 135 counts — just a series of deadlocks, acquittals and mistrials. Buckey served two years in jail, and her son, Raymond, served five. They spent their life’s savings on lawyers’ fees and in the end went ”through hell” and ”lost everything,” as she put it after her 1990 acquittal.

Margaret Talbot, The Lives They Lived: 01-07-01: Peggy McMartin Buckey, b. 1926; The Devil in The Nursery, New York Times Magazine (January 7, 2001).

Our case got caught up in the hysteria of the McMartin Jihad. The prosecutor in our case became unbalanced about our client. He was certain our client was guilty of horrible, unspeakable child abuse. He was hell-bent to see that justice was done. “Believe the children!”

His case began to fall apart with a deposition that Jim took. In Nebraska, you are entitled to a list of potential trial witnesses, and you can depose those witnesses (if you have the money).  We quickly learned that our client’s wife would testify against him. We also learned that she had seen a clinical psychologist for therapy. Jim got those treatment records, and to our surprise they revealed that the wife, who I will call Jane, was exhibiting signs of a dual personality.  Moreover, we suspected that the psychologist had hypnotized her in order to “recover her memory.”

Armed with this information, Jim took Jane’s deposition. I sat next to Jim. It was the weirdest experience I encountered as a practicing lawyer. As Jim slowly and methodically went over the details of her “therapy,” Jane’s voice became high pitched and she pulled her legs up and under her as a child would do. She had become, right in front of our eyes, “little Jane,” her alter ego (or something). The more Jim probed, the more the woman reverted to testifying as if she was a child. To this day, I am convinced that the woman’s testimony was sincere. A switch (albeit a false one) had been unwittingly turned on by her psychologist.

Armed with this deposition, we consulted our expert. I had hired this fellow for another criminal case, and knew of his credentials. He was an extraordinarily well-trained clinical psychologist, a full professor at the University of Nebraska and highly regarded by prosecutors and defense counsel alike for his brilliant forensic work. He read Jane’s deposition and reviewed the treating psychologist’s notes. In addition to this woman being nuts (my words), he told us that Jane had definitely been hypnotized as a part of her treatment. The hypnosis part was critical.

The law in Nebraska was that if someone had been hypnotized to “recover” memories, such a person should be barred from giving testimony in a criminal case. The reason, of course, was the worry about the intentional or unintentional creation of false memories.

As trial began, we moved in limine to exclude Jane’s testimony. With our expert sitting in the front row of the cheap seats, the treating psychologist admitted, in so many words, that he had, indeed, hypnotized Jane. The trial judge granted our motion just before Jim picked the jury. One down.

The prosecutor’s case was extremely weak in terms of physical evidence. The children had been examined by a local pediatrician. He would testify that one of the children had a “stretched hymen” or some such nonsense. Our expert was a pathologist. He was triple board certified in anatomic pathology, clinical pathology and forensic pathology. He had been the Medical Examiner for a major American city. He had also been consulted by the prosecutors in the McMartin case. They dropped him after he told them that there was no evidence that any of the children had been sexually assaulted.

Our pathologist, to his ever-lasting credit, testified for us pro bono. There was no way in the world that we could have afforded him even with our “huge” retainer. He flew his own light plane to Lexington, Nebraska to give his testimony.  He blew the local pediatrician’s testimony completely out of the water. It turns out that “[h]ymenal measurements are rarely useful as a diagnostic tool.” (See Pediatrics 2002;109;228-235; cited and quoted with details, here.) Two down.

And then there was the “treating psychologist” for the children. She held a Master’s degree in guidance counseling, but to the public she claimed to be “psychologist.” She had spent days and days with the two children. After I got her voluminous notes, I took her deposition. It lasted 12 hours.  I took her through every word in her notes.

She had clearly coached the children, and what they told her was unbelievable. Example: Our client had raped the little children with a large chair. Near the end of the deposition, the woman admitted that she could not testify to a reasonable degree of psychological certainty about her conclusions because she lacked the licensure to do so.  At that point, the prosecutor exploded and literally hit the witness on the shoulder. He then stormed out of our conference room as we made a record of his striking the witness. Having struck his own witness, the prosecutor was disqualified and a special prosecutor from the big city of North Platte was assigned to the case.

The special prosecutor was in a tough place. There was great pressure to go forward with the prosecution. Even though the guidance counselor lady had nearly killed his case, he had to use her as his primary witness. “Believe the children!”

He was smart. He put her on briefly, and got her to tell the jury some of what the children had told her*, and then he quit. It was my turn, and I took a whole lot longer than the prosecutor. Armed with the deposition, I must have asked the lady two hundred times, “Do you remember when I took your deposition?” Finally, Jim leaned over to me and whispered, “Enough.” He was right. Three down.

I suppose the acquittal pleased our client. Yet, his mother and father were deeply in debt and his marriage ruined. His daughter, who he loved desperately, would always have some vague memory of someone saying that her father had hurt her repeatedly.

Forgive me, I’m an old man. I almost forgot the most important point.

You can’t take depositions of government witnesses in federal criminal cases. Oh, well.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*The judge allowed the prosecutor to put the children on the witness stand over our objection that they did not know the meaning of the word “truth.” Jim’s cross of those little girls was brilliant. Sitting in front of the girls on a small chair that reduced Jim’s eye level to theirs, he gently steered them through just a few of the most outrageous statements they had made to the guidance counselor. Jim was almost father-like. I was very proud of Jim and not because of his rare skill but because of his utter decency.

16 Comments on this post.

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  • Mike
    3 February 2016 at 10:16 am - Reply

    Powerful. Moving. This post made me weep.

    Thank you.

    • Richard Kopf
      3 February 2016 at 11:54 am - Reply

      Mike,

      I very much appreciate your overly kind words. All the best.

      RGK

  • LawDog
    3 February 2016 at 2:06 pm - Reply

    “You can’t take depositions of government witnesses in federal criminal cases.”

    If you don’t mind my asking, what is the theory behind that? If you can call them as witnesses, shouldn’t you be able to depose them first?

    What makes you Federales such “special snowflakes”?

    • Richard G. Kopf
      3 February 2016 at 3:10 pm - Reply

      LawDog,

      I won’t bore you with a long discussion. Essentially, the federal criminal process follows the old common law “sporting” theory–that is, a trial is like sport, you don’t get to know the other guy’s game plan. The government will also tell you that it is too dangerous to cooperating witnesses to allow them to be deposed ’cause the transcript of the deposition can be used for nefarious purposes (like circulating it in the prison yard).

      If you want a deeper discussion and pretty clear discussion, see Bruce A. Green, Federal Criminal Discovery Reform: A Legislative Approach, Social Science Network (April 30, 2013) for further details. It is free for download. The URL, which you can copy and paste into your browser, is http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258633.

      All the best.

      RGK

      • shg
        3 February 2016 at 3:27 pm - Reply

        As they prefer to argue in SDNY, it would produce an unlevel playing field if the defense was allowed to learn the prosecution’s theory before trial, as it would allow the defense to prepare. That wouldn’t be sporting.

      • Peter H
        3 February 2016 at 4:36 pm - Reply

        This doesn’t make any sense to me.

        Unless the witness is asked about their specific conversations with the AUSA, their testimony wouldn’t be disclosing the game plan of the government, but rather facts which the defense is entitled to know.

        Further, the transcript of the trial testimony could just as easily be circulated around the prison yard. Of course few cases make it to trial for this to happen. But we’re not supposed to admit that are we?

  • Cornflake S. Pecially
    3 February 2016 at 2:09 pm - Reply

    Rule 15. Depositions (Dec. 1, 2012)

    (a) When Taken.

    (1) In General. A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.

    I guess justice has always been an exceptional circumstance…in the meantime you may but really you may not.

    • Richard G. Kopf
      3 February 2016 at 2:57 pm - Reply

      Cornflake S. Pecially,

      The operative words are “exceptional circumstances” and “to preserve testimony for trial.” That means, for example, you must show that your witness will be dead by the time of trial or physically unable to appear at the trial because of some illness or is about to flee to a foreign country. Remembering that in federal criminal cases there is nationwide subpoena power, the provision of the Rule that you reference is almost never applicable to ordinary government trial witnesses.

      All the best.

      RGK

      • Cornflake S. Pecially
        4 February 2016 at 7:37 am - Reply

        Speaking of ordinary, your initial entry into the auxiliary realm of written orbits was extraordinary, for what it was, and your re-entry has been as seasoned as the seasons, so to speak, as far as speaking goes?

        This post could have withered in your cellar. Nice of you put in it a jar and share.

        Your auxiliary breath, whispering for an “acceptably” berth, exemplifies the quest to achieve the increasingly difficult goal of conservation as our nation struggles with its journey towards maturity.

        As your peers attempt to re-word their resistance anew, in packs or individually, please do continue to remind them of the precious nature of top soil and the glory the plow.

        Cheerios can only withstand so much before what is left glows in one’s stool.

        Shit, give birth, and never stop eating.

        https://www.youtube.com/watch?v=YNAqEtYSN-s

        P.S. Everyone wants to send you love letters too…I know I do.

        • Richard G. Kopf
          4 February 2016 at 5:14 pm - Reply

          Dear CSP,

          Thanks for the video and the music. Never heard it before. I love “Lull it By.” It almost makes we want to smoke weed.

          All the best.

          RGK

  • Ken Womble
    3 February 2016 at 9:17 pm - Reply

    Absolutely loved reading this.

    Thanks Judge.

    • Richard G. Kopf
      4 February 2016 at 8:18 am - Reply

      Ken,

      I’m glad you enjoyed my walk down memory lane. All the best.

      RGK

  • Ahcuah
    4 February 2016 at 3:52 pm - Reply

    I started reading your post too quickly and managed to miss the sentence about Nebraska allowing depositions in criminal trials. So, after my “whoa!” moment, I had to go back and re-read it.

    I had a friend who, pro se, after being arrested (criminal trespass), immediately filed a false arrest civil lawsuit. He then deposed the arresting officer (who was not on duty at the time, but working as a security guard) and a few others. Then he used the depositions (and the “intelligence” thereby gathered) in the criminal trial. His motion for acquittal before he put on his defense was accepted by the judge. (This was in Ohio.)

    • Richard G. Kopf
      4 February 2016 at 5:09 pm - Reply

      Ahcuah,

      I hate Ohio. I was born and partially raised there. I also hate pro se acquittals. Such things are bad for business.

      All the best.

      RGK

  • Eva
    4 February 2016 at 5:51 pm - Reply

    As a non-lawyer thank you for your post that even I can understand and appreciate.
    My only request is that I just found your old blog “Hercules and the Empire” so if you could be so kind to hopefully keep it around (even though it has been closed for awhile) so I can peruse the contents for a bit that would be much appreciated.
    Best—

    • Richard G. Kopf
      5 February 2016 at 7:56 am - Reply

      Eva,

      I should say, “Please get a life.” But that would be unkind. I intend to keep it around, mostly as an archive for the large number of dumb things I have previously written at the site. All the best.

      RGK