Closing Arguments—It's All About the Memories, Baby!

Salvador Dali's "The Persistence of Memory," 1931.

It’s difficult to sit through what I sat through today.

Despite the judge admonishing the jury that what the attorneys say is not evidence, it is hard to not sit there and think “Darn right, that’s how I see it” and not be able to take that statement as evidence—I have to go back into my memory and remember what the witness said, how I felt about what was said then.

I am not going to say that my mind was changed today by anything either attorney said; I still believe these exams performed by child psychiatrist Dr. William Ayres were unwarranted (from MY experience as a nurse) and that these exams constituted “bad touch” (lewd and lascivious behavior), even though the boys did not understand the difference until adulthood. Think about this: what if these men did not understand what had happened to them was wrong? Could they have been perpetuating what happened to them?

I can say with 100 percent certainty that all of the men who testified or I have personally met or heard of from their parents know the difference between right and wrong, and they know what they experienced was wrong. The cycle of abuse stops with them, period.

Before the jury was even brought in, defense attorney Doron Weinberg made a motion to withdraw the statute of limitations proof. I am going to be brutally honest here and say I’m not sure what this meant. Initially I thought it had to do with jury instructions, removing a potentially confusing clause. I welcome an attorney clarifying this.

And jury instructions, while really quite simple, are made complex by attorney speak.

Right off the bat we learned there are 9 counts, not 10. Initially there had been 20, but one witness backed out at the very last minute. On day 1 we were told that child psychiatrist Dr. William Ayres faced 10 counts; today we learned it’s nine counts if lewd and lascivious behavior on a child younger than 14 years of age. We also learned there is the possibility of lesser charges—that of simple battery. The jury may convict of neither, or 288 (a) or simple battery—not both.

There are three counts associated with the molestation of Orion B, two counts on Scott T, and one count on the remaining four in-statute victims.

Each charge stands on its own, and just because the facts say guilty with one charge on one victim does not mean the other charges were proved. Each count is it’s own and to be considered on its own merits.

As I’m understanding the difference between the CA PC 288(a) and the lesser charges is intent, period. For the 288(a) charge to stick, the juror must first think an inappropriate touch did happen, and then that touch was done with the intent to provide sexual gratification to either the boy or the doctor. Well, we know the boys know they weren’t gratified, they were mortified, but being mere children in the presence of an adult who is a doctor and an ally to their parents, what are the boys going to do?

Some interesting highlights to the jury instructions (which will be completed tomorrow after the prosecutor, Deputy District Attorney Melissa McKowan, finishes her closing arguments):

1. The inappropriate touching does not have to occur with the victim being naked.

2. The jury is not to speculate as to why Stephen S testified in chains (he’s serving six years at a California Department of Corrections fire camp).

3. The doctor is not on trial for poor medical practice. Standard of care is not what is on trial—it’s all about the molestation of the boys.

4. It is not necessary to prove the doctor himself was aroused/erect (something impossible to prove or disprove).

5. Why would the ten men who testified do so, knowing it would be difficult and in public? What did they have to gain? (Only one has a civil suit in the works, and he's been deposed in the prior settled civil suit.)

Of course there are explanations of what is direct and circumstantial evidence—and everything in this case is based on someone’s memory, except for the testimony of the expert witnesses.

McKowan was dressed for success today—an attractive black pantsuit with studded accents, her hair pulled back for business. She is a chart-thinker, which I think helps keep the jury’s attention and lets them visualize a thought process.

“If this is an accepted practice (doing genital exams on boys being seen for ADD/ADHD, enuresis, or self-esteem/aggression issues), where are witnesses who can testify to this?” said McKowan.

She also wondered aloud, “if Dr. Ayres taught his students at USF that they were supposed to do genital exams on psychiatric patients, where are those practitioners to support that practice?”

A 288 charge involves a simple touch anywhere on the child, including touch on the shoulder or fondling of hair—and the defendant’s mental state at the time must be because he or she is seeking sexual gratification.

A 288 (a) charge involves substantial sexual conduct—it raises the degree of touching. There must be an intent to arouse, appeal to the child or adult’s sexual desires. Full penetration/ejaculation/orgasm is not required of either the victim or perp.

Please check out Deep Sounding’s blog for additional specifics. Some points that stood out to me were DDA McKowan’s rhetorical questions: If these exams were necessary to the treatment plan to boys in psychiatric care, why weren’t girls given the same exams? If these exams were medically necessary, why were the results not discussed with the parents or the boys? Why is it only paid witnesses who say that genital exams are okay?

There are more reasons to not do a genital exam on a child in a psychiatric setting than there are to do those exams. Every boy in this case had his own pediatrician who did his physical exams and met the boy and his family’s medical care needs. Dr. Ayres was not the primary care doctor for any of the boys. There were no precautions taken to endure the boy’s mental health during the exams—the exams were not performed on a proper exam table in a proper exam room (they were performed on a regular table where the doctor and the boys would do puzzles and build models). There were no measures to preserve the boys’ modesty. In the case of the two boys whose medical records did exist, there was no tie-in as to how the genital exam would impact the treatment plan.

To me that statement says much. Even in a nursing capacity, you would not do an exam on a patient’s genital area if they complained of chest pain, or even abdominal pain. Looking at a person’s genitals, let alone touching them, is an extraordinary and invasive thing to do. One can argue that the boys’ own pediatricians had ruled out any physical explanations to the boys’ problems and behaviors (especially the boy with enuresis). Two of the men who were molested have Kleinfelter’s syndrome (one was diagnosed in utero; the other after his treatment with Ayres). Neither were offering any complaints of complications of their genetic disorder—they were too young for hormone treatment when they treated with Ayres.

In the case of Orion B, there were seven pages of his medical record that consisted of interviews with his parents before the boy visited the doctor. The bulk of the interviews were centered on the boy’s ADD/ADHD and his “playing doctor” episodes with his young friend and adopted sister. The parents revealed the prenatal diagnosis of Kleinfelter’s, but did not ask for any treatment at that time—the boy was too young to initiate hormone treatment, nor did he himself know of the diagnosis. He did not have any outward signs of Kleinfelter’s, though it is possible the ADD/ADHD was a consequence of the genetic disorder.

DDA McKowan’s chart reminded me why I felt each man was truthful, as were the four out-of-statute witnesses.

McKowan also very cleverly used expert witness Dr. Elizabeth Loftus’ testimony to her benefit. An excellent tactic—some of the statements certainly support what the witnesses said.

This is not to say Weinberg was 100 ineffective. There is no way he’d ever want someone like me on a jury, because he is very learned about the medical/memory issues in this case. He can be very convincing … I have no doubt that he is an excellent barrister, and when he's given something to work with, he's an effective defense attorney. I would not hesitate to recommend him to anyone I knew who required his services. I do respect the man.

He does not project the relaxed persona that McKowan does. He speaks from a podium and relies heavily on notes. He also “slipped” up twice in saying one victim’s full name, until reminded by the judge. I just feel this is something he does on purpose—obviously the full name is written in his notes.

Weinberg is an excellent storyteller—he told a story about a false memory of his own which did earn laughs throughout the courtroom’s galley and in the jury box. There is no doubt everyone has perceived an event happening one way and someone else who also observed the event recalls something totally different.

This is what happened in this case, according to the defense attorney. The more the story was told, the more that was added. Only the very first interviews are reliable—those are the strongest “core” memories.

Weinberg was especially damning toward the testimony of Orion B—is it reasonable to believe that at the very first visit with the doctor, with the parents in the next room, that the boy was undressed and underwent a genital exam in which the boy says he was aroused?

Dammit if Weinberg isn’t right. Under normal circumstances, no one in their right mind would do that. But are pedophiles ever of a right mind? Is it possible the doctor at this point had done this for so long he did not believe anyone would think the worst of him? After all, he’s a doctor first, and that makes him superior to a plain old psychologist!

Weinberg basically attacked the memories of the boys, and the way their stories evolved. He also tried to cast doubt on the “moral turpitude” of two of the victims who have gone on to have legal troubles—one has been in and out of jail, the second in prison and testified while in the State’s custody.

Neither of those men have committed any crimes that are sexual in nature. Each was candid about their crimes; each is trying to put his life back on track. That's not unusual, and all of us in the courtroom wish them success.

While I was listening to Weinberg’s closing arguments, I thought back to my one time at jury duty many years ago. I was all of 19 years of age. It was a simple case; three drunk Latino men assaulted some cops who had responded to a 911 call. We listened to two days of testimony, and in my opinion it was pretty darn cut and dried. The three men had prior drunk in public convictions, they’d also assaulted other people in other incidents, and there were plenty of non-cop witnesses verifying the assault.

Once we’d elected a jury foreman, we did a straw vote. There were two “not guiltys.” Huh? So we did an oral poll, and it was two older women (who are now the age I am today) who totally did not understand what a guilty verdict meant. “What is this all about?” they asked. “What did the men do?”

A simple half-day of deliberations took us a full day to explain to the women why we were there, what the crime was, and what a guilty vote meant. You could see the lights go off in their heads when they finally understood. There were no threats, no one called them stupid (thought we sure thought it!); we simply put the judge’s instructions into simple English, and the women then were able to vote guilty.

I worry with the jury instructions that there may be jurors who think they have to decide, as a group, if the four propensity to molest, out-of-statute witnesses, are on trial and that they waste time debating them.

I worry that some of the people on the jury think that they cannot send an ill old man who uses a walker to prison. He looks harmless enough today, maybe he’s in his own private hell and that’s enough.

I worry that they do not understand bad touch, and that just because those boys, in an intimidating position back then, did not immediately register that what had happened to them was wrong.

But I have faith that tomorrow morning, DDA McKowan will get those questioning jurors back on track, and that there are jurors who are intelligent and educated and are able to wade through mountains of testimony and because of their educations and experiences, are able to say “I believe those men were molested.”

There is no way Dr. Ayres is found not guilty of anything …

(As an aside, Happy Birthday to San Mateo County Times reporter Elizabeth Pfeffer tomorrow, July 14!)

Attorneys begin closing arguments in Ayres trial

Ayres Watch blog