Prosecution Post-Mortem—What I Still Want to Know

Methinks the trial of former child psychiatrist Dr. William Ayres is moving along far quicker than anyone anticipated. In what came to me as somewhat of a surprise, the prosecutor, Deputy District Attorney Melissa McKowan rested her case-in-chief on Wednesday.

Now that the prosecution has rested (after a one-day recess due to the unavailability of a witness until that final day), defense attorney Doron Weinberg will now be “controlling the show” and the case will now become that of “dueling experts” and “character witnesses,” and I suspect that naturally some of those character witnesses will be colleagues of the good doctor, along with former patients, prepared to testify that “he didn’t do anything to me!”

(Of course this will carry no weight whatsoever if the former patient character witness is a female.)

There are a couple of knowledge gaps that, if filled in, may help a juror in believing the witnesses with more confidence. I understand that perhaps some of these concerns are things that cannot be brought into evidence, or addressed in rebuttal, but I’m going to throw these ideas out there, much like a good defense attorney, and see how many might stick.

Knowledge gap #1: Did Dr. Ayres see troubled girls? What did their physical exams consist of? What were their “icebreakers” on the table of models that so many of the trial’s witnesses have testified to? Survivors of Dr. Ayres’ therapy can’t recall anything “girly” on the table—just models and puzzles geared toward boys’ interests.

(Imagine the horror of Dr. Ayres playing with a Barbie doll to break the ice with a young girl. Ick. Just ick.)

Knowledge gap #2: Regarding Stephen’s testimony, I believe that two reports were erroneously filled out at the Petaluma group home, and by accident or inattention or lack of education on the part of the person filling out the reports, Stephen’s name was attached. He adamantly testified that the incidents described in the reports did not happen, and that no, he did not forget or make a false claim because the incidents did not happen to him! Period!

So who did the incidents happen to? How many other boys named “Stephen” or “Steven” or any other way of spelling that name were at the group home at the time? What was the position of the person who filled out the report? Was that person a witness to the incident? Why wasn’t Stephen’s counselor’s name on the reports?

Still sticking with Stephen (whom I believe could be a problem witness if someone on the jury bought into Weinberg’s “lack of moral turpitude” remarks during opening arguments), I have gone on record being grateful that McKowan was able for Stephen to introduce testimony about how much he might have given up by choosing to testify. He really had nothing to gain (other than his peace of mind)—he very well could have lost his place at the Jamestown fire camp if there had been a fire! He was in San Mateo County’s custody for some time before he testified. He will not be doing any less time for testifying.

Knowledge gap #3: Harping on the lack of wearing gloves—I’ve already written about how things used to be, when I was in nursing school in the early 1980s, that we were discouraged from wearing gloves for assisting patients after elimination because we didn’t wear gloves to take care of our own poo, so why is someone else’s poo so poisonous? With HIV and AIDS and increased knowledge regarding blood or bodily-fluid borne pathogens, medical personnel (which of course is not only nurses but also M.D.s) have updated their own standards of practice and adopted universal precautions, even if that goes against what he or she learned in school. A clinician would have to have been on an island without any communication to not know about universal precautions! So if Dr. Ayres had not worn gloves to examine boys' genitals in the 1960s and 1970s, that was standard practice back then. But by the end of the 1980s, universal precautions were the medical standard. There is no arguing with that.

So what’s the significance of the good doctor not wearing gloves? Other than protecting himself and the boys from possible bodily fluid-born infections, go back to what Dr. Lynn Ponton said. “A physical exam is not for the doctor’s benefit.” By touching the boys’ genitals, skin-to-skin, that sure tells me we are dealing with an intimate situation and exams that were done for the doctor’s benefit—in other words, his own sick fantasies and arousal.

What if this had been gloveless internal exams of female patients? There is no question that is not proper, has not been proper, even before universal precautions!

Knowledge gap #4: Sometime during closing arguments I hope McKowan is able to remind the jury of the nature of one of the in-statute witnesses’ “gay sex” when he was in third grade. How did Dr. Ayres’ exam influence the boy? Well, gay sex was a sort of reverse euphemism for “playing doctor.” The boy simply learned how to do a genital exam, something he had no business experiencing in the first place. There was really no better way to describe what the boy and two friends had done (not all at the same time!).

The young man is question is definitely heterosexual, and has never had a true “gay sex” relationship. It sucks that there was no proper description of what this survivor’s gay sex at age 9 really was—what the game consisted of before his exposure to Dr. Ayres, and how the game changed after a visit and his own “physical exam.”

Knowledge gap #5: One of the prior bad acts witnesses described Ayres holding what he presumed was a medical book with black and white photographs of naked boys. Perhaps the jury will wonder more about that book? The witness described the book as having captions and the boys were not posed. Which one of the not allowed as evidence books fits this description?

Knowledge gap #6: Self-inflicted errors: Perhaps it was a clever strategy to subpoena Victoria Balfour. Perhaps she should have been deposed a long time ago to see if she had anything of value for either side. But for Weinberg to bring her up during cross-examination of one of the “propensity to molest” witnesses might have a juror or two wondering. No doubt someone wrote down her name; Weinberg even spelled it for the court reporter. That’s going to be something someone might bring up during deliberations? If this person was so important to mention, why didn’t we hear from her or more about her? Is this a case of a defense attorney throwing crap on the walls and hoping some sticks? (That view gets my vote.)

Knowledge gap #7: We know the good doctor saw patients referred to him by the juvenile system. Why have none been called? Are they all out-of-statute? Are their records sealed? Or did Dr. Ayres only molest middle- or upper-middle class boys?

Because of the great cross-pollination we have going between T & T and the Watchdog site, a few of the defense witnesses have been revealed. We all know about controversial memory expert Dr. Elizabeth Loftus (not an M.D.-type of doctor, but a Ph.D.-type doctor). The prosecution is pretty much going to have to accept her as a “memory expert” because of her profitable history as an expert witness for the defense.

But a couple of the others might just be easier to not accept as expert witnesses. Dr. Marvin Firestone will be testifying that Dr. Ayres does not “fit the profile” of a pedophile. Geez, with what we’ve heard in court, if Dr. Ayres doesn’t fit the profile, who does?

Dr. Firestone is also a resident of San Mateo County who is probably not too terribly objective where Dr. Ayres is concerned. According to The Patient Advocate, in a post at the Watchdog site, here’s the low-down on Firestone: Dr. Firestone provides medical-legal consultation and neuropsychiatric evaluations for the Courts and the legal community and has served as expert witness on numerous cases involving head injuries and post-traumatic stress syndromes, conservatorship needs, testamentary capacity and mental competency in civil, probate and criminal matters.

Please read the previous sentence carefully. Did you read anything about being an expert on who fits the profile of a pedophile? Me neither. Challenge this expert witness’ credentials, Ms. McKowan!

Granted, if Dr. Firestone uses the information posted on About.com’s “Profile of a Pedophile,” Dr. Ayres isn’t a perfect fit—but what criminal ever is?

That article has, in bold text, the following subheads: Pedophiles Often Prefer Children Close to Puberty, Pedophiles Work Around Children, Manipulation of the Innocent. Hmmmmm. Describes Dr. Ayres pretty well …

The article concludes with the following paragraphs: Pedophiles work hard at stalking their targets and will patiently work to develop relationships with them. It is not uncommon for them to be developing a long list of potential victims at any one time. Many of them believe that what they are doing is not wrong and that having sex with a child is actually "healthy" for the child. Almost all pedophiles have a collection of pornography, which they protect at all costs. Many of them also collect "souvenirs" from their victims. They rarely discard either their porn or collections for any reason.

One factor that works against the pedophile is that eventually the children will grow up and recall the events that occurred. Often pedophiles are not brought to justice until such time occurs and victims are angered by being victimized and want to protect other children from the same consequences.

In an article titled “A Profile of the Child Molester,” the reader will learn there is no tidy, one-size-fits-all description of the “average” pedophile. But this article observes that most pedophiles are male, take jobs where they have easy access to children, and most often choose kids on the brink of puberty.

Another article offers several characteristics to look for. Pedophiles “appear to be trustworthy and respectable. Has good standing in the community.” They “are usually family men, have no criminal record, and deny that they abuse children, even after caught, convicted, incarcerated, and court-ordered into a sex offender program.”

It appears that Dr. Firestone will be fairly easy to dismantle, provided DDA McKowan has done her homework or has her own “what is a pedophile expert witness lying around for rebuttal.

Another expert witness, Dr. Gilbert Kliman, is expected to testify that what Ayres did was within the standard of practice for psychiatry. What is sad about this fellow’s involvement is the fact he’s worked with molestation victims who were the prey of priests (no pun intended). So it seems he may be just like any other defense witness—willing to put your sense of what’s right and what’s wrong to the side for the almighty dollar.

McKowan had better ask how much these experts are being paid. She wisely opened that door with Dr. Ponton, so keep up that strategy.

Look, I understand that the practice of medicine is incestuous. I know that it takes more than an act of God for any physician to say that one of his or her colleagues made an error, let alone that person committed a crime, a betrayal of trust between doctor and patient (one could argue that both the victim’s family and the pedophile’s family is betrayed, too.). Being a mandated reporter is not something these people take seriously.

Having an “expert witness” who has also worked with the accused takes even more credibility away from what he or she has to say. How many of those expert witnesses can live with themselves, saying what they are prepared to say, after reading depositions by any of Ayres’ survivors?

Perhaps the good doctor would have a better chance of convincing a jury that he’s not a pedophile by obtaining an expert witness who hasn’t ever been on the faculty of the same medical school, or who’s known him for a long time.

The biggest thing about this whole sad case is common sense. I have a feeling common sense doesn’t play much part in the law though. This case is all very simple: If your son had gone to a psychiatrist for the reasons the witnesses (all of them) went to the psychiatrist, would you be comfortable with what had been done to your son, most of the time without specific consent. It’s utterly understandable if one of the boys had voiced a concern about the normalcy of something he was experiencing as part of adolescence—let’s say, for example, wet dreams, pubic hair, or a lump in his testes. What does a penis and testes have to do with concerns over ADD/ADHD?

Think about it: how many times did the doctor betray his patients’ and their parents’ trust? First, most did not give consent for a physical exam in the first place. NO ONE gave consent for a genital exam; none of the parents were given a report regarding their son’s physical exam, let alone genital exam, and the boys themselves weren’t really told why they were getting the exam as it fit in their presumptive diagnosis. (Please? Self-esteem issues and you need to fondle a kid’s genitals? I didn’t even go to medical school and I can see that’s wrong!)

What questions do you have that you’d like to have come out in testimony. Don’t worry about admissibility; the courts will take care of that. What do you need to know to help you believe in Dr. Ayres’ guilt or innocence?

And in the off-case that Dr. Ayres would take the stand in his own defense, what would you like to ask him?

Readers, please remember to keep your comments on-topic. This is a case about child molestation—keep your comments confined to issues concerning Dr. Ayres and the survivors of his “therapy.”Friday July 3, 2009: No Court Today, But Will Ayres Take The Stand Next Week?
Last former patient testifies in trial of Dr. William Ayres
Defense begins in molestation trial