Wednesday, June 24, 2009

Strike one! Ball! Strike two! Ball! Strike three—nope, base hit for McKowan!

California Department of Corrections Fire camp trustee

I confess to being concerned about the way things were going in the child molestation trial of Dr. William Ayres.

Not because I don’t believe the young men—I absolutely do. But that's my mom and registered nurse brain talking—not my knowledge of the law. And my knowledge of the law consists of three one-semester classes about law in certain lines of work: law as it applies to nursing, media law, and sports law, including labor law and torts and liability. No criminal law. So I’m no expert.

But it seemed to me that defense attorney Doron Weinberg was doing a better job of lighting and putting out small fires during his cross-examination and re-cross of the witnesses this far in the court proceedings, which consist of three former patients and their parents.

There are some common themes possessed by each young man who alleges molestation by the now-elderly doctor. Each young man was referred, or perceives he was referred, to Dr. Ayres for evaluation or treatment of ADD or ADHD as the first and foremost reason an appointment was made. Some of the parents of the out-of-statute boys also reveal their sons were referred for evaluation of learning difficulties in school, but one boy’s parents readily state their boy went because of self-esteem issues.

Imagine that—you send your son to a psychiatrist and what you get out of it is a lifelong victim of molestation and all that goes with that!

Each young man did not immediately perceive the “medical exam” as a bad touch. Each young man comes from a middle or upper-middle class home with well-informed parent who believed they were doing the right thing based on their own professional knowledge or because an educator or pediatrician believed the referral would benefit the boy. None of the parents were informed of the need for an intimate exam of their son’s genitals (though one was told the doctor would be performing a physical as part of his uptake evaluation). None of the parents were informed of the “results” of the physical exam.

Thus far none of the young men (remember, ages 8 to 13 or 14 at the time of the molestation) were referred because of any sexual dysfunction or malformation of his genitals.

San Mateo County prosecutor Melissa McKowan certainly has not made any glaring missteps, but while I was listening to her questioning and the resulting testimony, I found things I was wondering about—questions about the testimony, things I felt might be relevant—things a juror might wonder about.

I had a couple of questions that kept nagging at me: what exactly is “gay sex” at the age of 9? What happens specifically? In this case, much fuss was made about the timing of what was ultimately described as gay sex between one of the alleged victims and his then-best friend. Weinberg (rightly so) tried to put a confusing spin on the timing of this gay sex, as Ayres’ former patient had stated in a deposition that he had this “gay sex” during the third grade school year and into that summer. The boy stated that his experience with Ayres changed the way he had gay sex.

Having a younger brother of my own, I wondered what would he have been doing if he’d had “gay sex” when he was 9 years of age. Where would he have done it? Who would he have done it with?

“Please, Ms. McKowan,” I thought to myself. “Can you please get this defined? If we are talking about how a foreskin was retracted and how testes were fondled, we need to be open enough to define gay sex in a 9-year-old.”

Today the young man defined what gay sex was—playing doctor with your best friend. And he had two “partners”—boys he stated were his “best friends” at the time. He testified that he modified the way they played doctor based on the way Dr. Ayres had examined him.

The young man admitted he felt he had a sexual identity problem as a consequence of the alleged molestation and the gay sex. Today with additional therapy he knows he’s always been heterosexual and has a beautiful supportive girlfriend.

The prosecutor correctly asked each young man if the doctor wore gloves during the exam. An excellent question—but does the jury get the significance of this?

Do you understand the significance of this medical practice?

In the mid to late 1980s, HIV and AIDS became a huge concern to health care professionals. Previously to understanding HIV, the only time a doctor or nurse would wear gloves was when caring for an open, possibly infected wound or for performing gynecological or rectal exams. When I was in nursing school in the early 1980s, we were instructed to NOT wear gloves when helping a patient wipe him or herself after using the bathroom—wearing gloves would alienate the person and make them feel “dirty.”

After universal precautions were embraced as good medical practice, doctors and nurses wore gloves during most physical exams, especially those near mucous membranes, open wounds or other contact and the genital area.

The young men who have so far testified that they do not believe Ayres wore gloves. And these three young men, all within statute, were examined after universal precautions were adopted.

I sincerely hope that an expert witness will be explaining that soon, before the jury forgets about the gloves.

One former patient testified to urinating in a cup as part of his evaluation for chronic bedwetting. He claims Ayres not only held the cup but also held his penis. The medical record reveals that the doctor did record a volume of urine, but the young man recalls the doctor just dumping the urine into a sink. It was explained by the doctor that he needed to see if the boy had a single stream of urine, or a double or triple stream.

This is an accepted standard of care for the evaluation of enuresis. However, it’s entirely probable the boy already had that exam done by his own pediatrician. What can a psychiatrist do treatment-wise if he discovers the kid has a double stream—a possible surgical condition?

A psychiatrist can do nothing. This exam should have been done by a urologist. The specialty of urology was not mentioned at all. Again, perhaps because that testimony does not yet fit, but I hope there is an expert prepared to testify about a standard of care in urology and the treatment of enuresis.

Why do the boys’ stories seem to evolve over time? I believe that there is a logical explanation for this—think about it, if a person previously unknown to you out of the blue asked you about a sensitive issue, would you be prepared to be 100 percent open and forthright? I believe that as the men better trusted the investigator, they were more able to go through the event in their mind and better explain those memories they’ve put on the back burner.

The gaps in the parents’ memories are also easily explained. Do you remember every single doctor’s office visit you’ve had, especially if you believe you are there for a routine, no big deal thing. These parents utterly trusted the integrity of Dr. Ayres and had no reason to be on guard or expect anything out of the ordinary.

Again, this is my health care background talking. What this means legally I have yet to see. Will an expert witness tell the jury why the memories and timelines are faulty? One observer in the courtroom “deduced” one former patient was lying because there were so many gaps. I reminded her that at the time he didn’t really believe what was happening was bad or abnormal. Why remember every little detail?

I’d also had concerns about the way the courtroom itself was being run. In Santa Clara County, the jurors were not waiting to go into court in the hallway along with the general public or the potential witnesses, and the gallery remained seated until the jury left the courtroom. This courthouse is a bit old so it appears there are no jury lounges available. Because the jurors were freely mingling with the public on Tuesday morning, they knows Ayres uses a walker. Will this evoke sympathy? Today things tightened up a bit and the bailiff asked the galley remain seated until the jury left. (There are two women who take forever to leave—I know both have physical infirmities—but I hope the bailiff encourages them to move along a bit faster, to not linger in the courtroom rummaging in their purses!)

Another thing I’ve observed is McKowan and Weinberg do have apparent whispered off-the-record conversations. Weinberg is a wily old guy—could he ask for a mistrial because of the way the jury is “maintained” or because of those off-the-record conversations?

One of today’s witnesses was most compelling to me. Stephen S. is a 31-year old former patient of Ayres. His involvement in the trial came about in a most interesting manner: he was in the courthouse at the same time as Ayres was in custody after his arrest, waiting in an anteroom that holds inmates who will be testifying in court. Stephen freely admits he was sentenced to six years in prison for carjacking and strong armed robbery. There are a couple of interesting things about Stephen that had me thinking about some issues.

Stephen said he was an inmate trustee at a fire camp in Monterey County. This means he is a firefighter, and will respond to brush and forest fires throughout California. To be selected for a fire camp is a true honor for an inmate: they live in a minimum to unsecured camp, they learn a valuable trade (firefighting) and assignment to the camp is a reward for good behavior. There are inmates who work for years to gain this honor.

I was concerned that the jury would not understand the significance of this, especially as questioning went on.

Before the significance of fire camp was explained to the jury, on cross-examination Weinberg introduced some reports into evidence. The reports were in regards to incidents with other boys while at the group home in 1994.

As part of direct examination, McKowan revealed that Stephen ended up in a group home when he misbehaved enough to find himself involved in the juvenile system. While at this group home, Stephen told a counselor he’d been molested by Ayres (but got the doctor’s first name wrong, calling him “Richard”) A report was filled out, but there was no follow-up.

But there were two other reports on hand—reports about incidents of a sexual nature between Stephen and other boys. The reports were child abuse reports, and the incidents involved oral copulation.

Stephen does not recall any incidents of that nature. When shown copies of the reports, he still does not recall the incidents. Nor does he know who the person was who prepared the report. His counselor’s name is not on the report. His parents were never informed about the supposed incidents.

I wondered why McKowan let Weinberg introduce these reports—why didn’t she make a preemptive strike? But I think I understand why after her re-direct examination of Stephen.

Weinberg tried to get Stephen to admit he’d lied, either about the incidents happening or about filing the report. Stephen stuck to his guns, it didn’t happen nor was he aware of any reports, because there had been no incidents. McKowan simply reinforced Stephen’s position during re-direct. As she questioned Stephen, I came to an understanding of what I think happened.

To me, this appears to be reports filed in error with mistaken identity. So I wondered—what kind of people staff a group home? What is the education level of the employees supervising the trustees? How many people supervise the trustees? And is there a history of erroneous reports being filed at this home or by the person who prepared the report?

I’m fairly sure the answers to those questions could not have come through Stephen. Will they come through someone else?

During re-re-direct, through Stephen’s testimony, prosecutor McKowan informed the jury why the fire camp was so important. I believe the jury was able to understand that in Stephen there was a good hard-working person who wanted a good future and was already working hard to obtain it.

Stephen entered the California Correctional system in April 2007. He has been at the honor camp for 19 months.

Do the math. Stephen programmed quickly and earned the honor of learning firefighting and now has a vocation he can look forward to when he’s released from prison on April 2011.

At the lunch break, I was concerned Weinberg had done a better job questioning the witnesses and defending his client. But after the questioning of Stephen, and being able to address so many of my concerns, I believe ADA Melissa McKowan had a solid base hit today.

May she continue to anticipate the smallest of potential concerns and remember that there are not only parents on the jury who do understand some adolescent behaviors, but no doubt some people on the jury may not understand what goes through the adolescent mind.

The boys are not lying. Each has finally fully understood the enormity of what happened to them. The gaps in their memories are fully legitimate—and are the same gaps each of us may have when remembering happier times, like Christmas when we were five.

Today’s photo is of California Department of Corrections trustee firefighters, in honor of Stephen.

Week four, Day Two Testimony

Former patients take stand in Ayres trial


donchais said...

Great write-up as always!

Thanks CaliGirl9 for your hard work!

Anonymous said...

Fabulous writeup. The other thing is that the victims of Dr. Ayres who are waiting to testify yesterday were sitting just a few feet from each other and from the mother of Steve S, who waited all day to testify.

Isn't the prosecution concerned about this? If they were so concerned about witneses talking to each other ?Additionally, on the first day of the trial, at least one juror was standing right next to a big group of parents who were talking about the Ayres case. I can't believe they are allowing the jurors to mingle this way.

Anonymous said...

We have heard of victims who got rectal exams. Don't think they're testifying however.

We also know of a boy who was hospitalized after putting his fist through a glass wall at Hillcrest. Ayres came to see him in the hospital. Ayres brought him a bunch of record albums. This boy was lying in bed with his shirt on. He was 13 years old. He remembers Ayres started to rubbing his head, then his bare shoulders. Then the boy remembers that Ayres kept rubbing him further and further down his back. His memory blacks out after that (though he does remember other occasions when Ayres molested him in his office) This boy was heavily drugged up and he believes Ayres may have been molested him far more severely under his drugged state.

This man went on to have severe problems. He is known as a "cutter" and has hundreds of scars on both arms from cutting himself. He is a sweet guy and for what Ayres did to him alone, I would like to see Ayres fry in hell.

Anonymous said...

I agree with latex glove theory. Was the cup used to collect urine even a specimen cup or was it a dixie cup. Did Ayres have a scale to measure it.

All very good observations. I feel the fact that Ayres wanted to do examinations and psychiatry he should have had his office set up as the type with an exam table, drapes, privacy gowns etc.

I feel if Melissa McKowan hasn't established that it didn't have these types of features she should get on that.......

Anonymous said...

McKowan should also say there were other shrinks in town, Dr David Schwartz, Hugh Ridlehuber etc. These doctors were in practice in the same area, same specialty and they did not have some 40 men accusing them of child molestation. With the police alerted, parents informed etc. Why was Ayres the only who gave exams that were misperceived by the children. Could it be on some deeper level they knew that it wasn't an exam at all.

If Weinberg can mess up on the names, a little slip up, maybe McKowan can just slip up and name the book Ayres had!

Anonymous said...

Stephen's mom did a masterful job on the stand. She waited patiently all day to testify.

Sprocket said...

I hope McKowan gets her act together and brings up all these issues in the presentation of her expert witnesses.

That off the record whispering with Weinberg is troubling.

Anonymous said...

Sprocket: Several courtroom observers can tell you about a key whispered conversation that occurred between Weinberg and McKowan in the courtroom shortly after 1:30 pm on Thursday, June 4.

Judge Freeman announced that anyone who would be a potential witness would be asked to leave. McKowan asked the mother of a victim to leave.

Then it was Weinberg's turn to ask his witnesses to leave. He looked all around the courtroom. One of the spectators was Victoria Balfour. He looked right through her and said nothing. He did not ask any witnesses to leave.

That was when prosecutor Melissa McKowan looked straight at Victoria Balfour and then pulled Doron Weinberg into a giggling, jovial, whispered discussion. When they were finished, Weinberg, making a pretense of flipping through his legal pad, said "It has been brought to my attention that Victoria Balfour, a person I might be calling, is in the courtroom." Balfour announced that she had not been subpoenaed but had to leave. It turns out that Weinberg did not know what Balfour looked like until McKowan pointed her out.

According to McKowan's boss, Chief Deputy DA Steve Wagstaffe, McKowan did not object to the exclusion of Balfour.

Additionally, when Balfour's lawyer contacted McKowan to say that Balfour had filed a modified exclusionary order to get back into the courtroom, that the McKowaan was hostile to the idea.

Meanwhile Wagstaffe had assured Balfour four times- once by email, once by phone and twice in person that she should be in the courtroom and watch the trial, and that he would do what he could do help her get back in. He did nothing.

Hard to tell whether this is just horrendously bad management on Wagstaffe's part or whether he is being duplicitous and knew exactly what McKowan is up to.

Every courtroom observer believes that McKowan and Weinberg colluded to keep Balfour out of the courtroom. We hope T and T can do some solid reporting on this matter

christine said...

It sounds to me as if it's a rather peculiar situation: the jury mixing in the hall, the prosecutor buddies with Weinberg and getting him to eject Balfour.

I hope that justice is done. Today's story was very well written, and gives a sense of what is at stake here.