EXPERT WITNESS: The tip of the iceberg

By Michael G. Brock On 7/24/2014 The Oakland Press ran a story titled, "Sheriff's Office sued by Man Wrongfully Convicted of Sexual Assault on Daughter," by Dave Phillips. This is the latest chapter in the ongoing saga of Yakov (fka Jacob) Trakhtenberg, the 77 year old former Chrysler Corporation engineer who was incarcerated from January 2006 until 2012. His conviction was vacated in 2013 by the Michigan Supreme Court, following a civil trial in which his ex-wife sued him for five million dollars on behalf of the alleged victim. A jury found for Mr. Trakhtenberg and voiced the opinion that the child had been coached. Subsequently, Trakhtenberg settled a lawsuit against his court-appointed attorney Deborah McKelvy for 500K for inadequate representation. After the initial allegations were made, the child was interviewed at CARE House, a facility set up by the county to insure that forensic interviews are done correctly by a mental health professional in accordance with Michigan Forensic Interviewing Protocol. Nine days later the child's mother reported another allegation to police and the child was interviewed Detective Terry Cashman of the Oakland County Sheriff's Department. Cashman asked the child if she had been touched with one finger or more than one finger and suggestively held up his right index finger. The child said that was the one. The lawsuit claims violation of protocol and manipulation of the witness, and that, "Cashman knew or should have known that his conductâ?¦would have led to the conviction of an innocent person." In a June 19, 2014 article about the McKelvy settlement, Phillips points out that Trakhtenberg was not without means, but went with a court appointed attorney because (in the words of his civil attorney James Elliott), "â?¦as a first generation immigrant from Russia, Trakhtenberg had a strong belief in the U.S. justice system and did not think he needed to hire an attorney for something he did not do." Elliot also noted that, "McKelvy even failed to point out to the trial judge that Trakhtenberg' primary accuserâ?¦also made similar allegations on a prior date against another individual that were also unfounded." This case points out a lot of what is wrong with the way sex abuse cases are handled in this country at this point in time, and contains many elements that occur frequently in false allegation cases and which I have written about many times over the years. An allegation of abuse was made during or shortly after an acrimonious divorce. After the case had been investigated and an appropriate forensic interview was conducted, the child did not disclose abuse and no further action was taken. But the case didn't end there because there is no limit to the number of allegations of sex abuse that can be made, and each one will trigger a reinvestigation. Moreover, law enforcement officers are empowered to conduct forensic interviews, though they are not forensic scientists. It is the nature of law enforcement that officers receive reinforcement for getting convictions, not for exonerating the innocent, so they are likely to be less objective than mental health interviewers. This article states only that the detective asked the child if she was touched with one finger or two, but it does not say whether she had disclosed the alleged touching before that question was asked as part of a narrative and in response to an open-ended question. If the child disclosed as part of a narrative and Cashman was attempting to clarify her response, it could have been an appropriate question. However, if the question came before such a disclosure, then it was clearly leading in that it presumed "facts not in evidence," tricking the child into thinking she had provided a disclosure and seemingly offering her a choice, while in fact, offering her only the opportunity to confirm the allegation, but not to deny. Once a child has been coerced in this manner to believe that she has been abused, she will, in most cases, internalize this belief and reiterate it on the stand. For all practical purposes, the case is over before it goes to trial. In this case there was no question of whether the child had been touched, just whether she had been touched as part of caregiving, or for sexual gratification. At trial Judge Tyner had said, "Very little is clear to me in this case, starting with what the allegations are that go to each count." One of the responsibilities designated to the forensic interviewer is to clarify this distinction. If the interviewer is predisposed to believe that the touching was for sexual purposes, they are less likely to seek out evidence to the contrary. Once the case goes to trial, the jury or trier of fact may be predisposed to believe that the touching was for sexual gratification or the case wouldn't have been brought. Mr. Trakhtenberg chose to go with a court appointed attorney because he had "faith in the system." However, unlike many indigent defendants, he had the means to fight the civil case that was subsequently brought against him. Had he not had those resources, it is unlikely that he would have prevailed at the civil trial, or that his criminal case would subsequently been overturned. He would probably would not have sued his attorney, nor been able to bring suit against the detective/forensic interviewer as he is now doing. Whether the suit will be allowed is yet to be seen, or whether he will prevail. However, just that fact that he has the resources to have obtained redress puts him in a very different position than William Waters, on whose case I was an expert witness and whom I wrote about in Presumed Innocent until Proven Broke, Part II. You may recall that in that case the interviewing police officer asked the child, who had denied several direct questions about whether she had been touched, "How many times did this happen?" In criminal court, there is at least a de jure presumption of innocence of the accused, even though proof beyond a reasonable doubt does not seem to be very hard to establish in a sex abuse case. However, on college campuses, researchers are claiming that 20% of women are the victims of rape based solely on their surveys. These figures-which include 16% (4/5) who claim that they were taken advantage of while intoxicated-are being released as fact in the media and cited by institutions like Harvard, Yale and Princeton as the rationale for adopting new policies that ignore due process rights in responding to rape allegations. If you drink too much and kill someone in an accident, you are responsible. Not so if you are female and have sex while intoxicated. In response to pressure from the White House, young men will be branded as rapists and expelled from these prestigious institutions based on a preponderance of evidence at an informal hearing, during which defendants are allowed no legal representation or access to a full transcript of allegations. I imagine that their level of intoxication would not be accepted as a defense. -------- Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com. Published: Wed, Aug 20, 2014