Journalists and the Courts: Can’t We Just All Get Along?

Prosecutor Melissa McKowan (SF Chronicle photo). She has a much nicer haircut and dye job now.

I took a day off from the Dr. William Ayres trial in Redwood City because my poor crippled body simply refused to take itself to the light rail and Caltrain this morning. Living in a body that’s had three back surgeries and nine knee surgeries means that some days it’s those body parts that tell me what to do rather than my brain telling them what to do.

If you are looking for an update on today’s trial, please check out the William Hamilton Ayres Watchdog site. There are multiple correspondents in attendance who will do a fine job of giving the reader an insider’s view of today’s proceedings. Also check out the links at the end of this article.

I want to write about the media sideshow that you may not know much about.

On the afternoon of June 4, freelance reporter Victoria Balfour was asked to leave the courtroom. Balfour had been in the courtroom during pretrial motions and jury selection, and that afternoon San Mateo County Deputy District Attorney Melissa McKowan pointed Balfour out to defense attorney Doron Weinberg. Before flying out to California from New York, Balfour had previously double-checked with Chief Deputy District Attorney Steve Wagstaffe, making certain she was permitted to attend the trial and that she was not going to be a witness. She had received no subpoenas. Wagstaffe assured her she was in the clear.

Balfour was instrumental in keeping the investigation going, locating former patients of Ayres and prodding the San Mateo police and then the DA’s office to bring the case to trial. She was supposed to be providing coverage for a San Diego newspaper.

Instead, Balfour’s found herself looking for an attorney who would take her case on pro bono (being a freelancer, she does not have a nice legal department to call upon), and she’s sitting outside in the hallway, eager for tidbits of information.

Balfour is not the only media source to undergo a bit of grief. Local ABC affiliate KGO (Channel 7, ABC) sent one of its most seasoned reporters, Vic Lee (who has 40 years of experience in television journalism!), and a camera person to cover opening arguments. Lee was in the courtroom; his cameraperson was not. KGO had faxed a request to the San Mateo County Courthouse asking for permission to film opening arguments.

Just prior to opening arguments starting, Superior Court Judge Beth Freeman listened to an emergency motion filed by Balfour regarding her exclusion from the courtroom. Just prior to the meeting, defense attorney Doron Weinberg presented her pro bono attorney with a subpoena.

Deputy DA McKowan did not verbalize any objections to Balfour being in the courtroom, but one wonders why she pointed Balfour out to Weinberg in the first place.

Weinberg has never had a conversation with Balfour. He has no idea of what she may know or does not know or how that information could benefit his client in the first place.

Observers aren’t quite sure what sort of information Balfour may have that will help either the prosecution or the defense. She knows only what she has been told about the case. She did not know any of the men prior to this case; she, like the men, does not possess any firm physical evidence that they were molested (scars, diary entries, etc.). How can anything she may be queried about be anything but hearsay?

Thus far the San Mateo County District Attorney James P. Fox has not released a statement on this matter at all.

Immediately after Superior Court Judge Beth Freeman ruled that Balfour could listen to opening arguments only, Vic Lee raised his hand to be heard. He asked the judge about his cameraperson being allowed to take video of the opening arguments only. Judge Freeman could not recall such a request being made to the courthouse in timely manner and denied his request. Less than an hour later, the faxed request, which was indeed sent in a timely manner, was located, but the judge still did not allow KGO to take video in the courtroom itself.

Instead, the television station ended up with lots of photos of people standing around in the hallway. Heck, I even made it on television, standing around waiting!

San Mateo County Superior Court is where the Scott Peterson trial took place, so there is a bit of history of exclusion of television coverage. Judge Freeman stated that this case (Ayres) is no more important than any other, so no preferential treatment will be given by allowing cameras into the courtroom.

I believe KGO planned to follow through with additional legal action but I’m not positive. Vic Lee stayed all day on Tuesday, listening to opening arguments and the testimony of the first witness.

Balfour sat through the reasonably brief opening arguments, and as soon as the first witness was called, both Weinberg and McKowan watched as Balfour got up and walked out of the courtroom to wait in the hallway.

Excluding journalists from covering a trial is bad enough—and I believe the examples in this case can be very chilling to First Amendment rights.

Here is the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here is my fear: at what point does a journalist become a potential witness? Let’s say a journalist learns of a crime by listening to a police scanner. He or she shows up to the scene, after the crime or incident, and starts reporting (broadcast or print).

Is he or she now a witness? To what? And if this journalist shows up sometime later to cover a resulting court case, are they a potential witness? What does that person have to say—how can that person have any knowledge of the actual crime or event? Has that reporter now become part of that event, someone who possesses evidence?

I even tried to play the devil’s advocate and try to see things from McKowan or Weinberg’s point of view. Does Balfour know so much about the case that McKowan feels uncomfortable with someone else in the courtroom? Is Weinberg angry about having to defend Dr. Ayres? But Ayres is a paying client, why would Weinberg be so angry to the point to bar a journalist who helped to make the investigation happen? If anything, he should be thanking her for making it necessary for the good doctor to have to pay for his highly skilled services! (Mind you, I have the utmost respect for both attorneys. I can’t do what they do, but sometimes I don’t understand why they do some of the things they do!)

Still playing the devil’s advocate, when dealing with a trial such as this one, where the witnesses are highly traumatized and testifying with their identities limited to only their first names and surname initials (unless someone slips up!), is it the right thing to plaster their faces onto television screens? Is it right that a print journalist describes what the person looks like, writes about his background to the point that people in his community could guess it was him. Is there too much transparency?

In this case, I believe the public’s right to know is vital. I also believe that journalists should understand the sensitive nature of what they are writing about. The San Mateo County Times reporter is an excellent example of a tempered journalist. Elizabeth Pfeffer strikes a balance between informing the public of the goings-on and maintaining the anonymity and dignity of those who testify. Her coverage is worth reading.

Despite my lack of a paycheck or proper job in journalism (though I have received a journalism-based undergrad degree), I am trying to be as professional as I can in my coverage. Yes, T & T tends to be a pro-prosecution blog, but we certainly can and will criticize a DA or defense attorney for missteps. I have promised I will not write derogatory things about the good doctor’s family members in attendance. They are not on trial. I have promised I will minimize sensationalizing any of the testimony unless I have to. Suffice it to say, if you want to think the worst about this trial, I encourage you to do so, because it’s probably the truth.

This is what I really want to come out of this trial—I want parents to grow some cajones and be very suspicious and protective of their children. I want the to question everything their family doctor or school educators say about their kids—why does my son need to see a full-blown psychiatrist for a suspected learning disability? What kind of therapy will a psychiatrist do for my bed-wetting child? My child with self-esteem problems? My child with possible ADD or ADHD?

Trust no one where your children are concerned. Being too trusting of certain people can result in your ADD son or daughter becoming victimized by someone that you may be paying to help ensure your child’s future success.

Instead, what you end up purchasing is a child abuse victim. If you think dealing with ADD is hard, try dealing with a forever scarred child!

T & T will be back in the courtroom tomorrow.

More accusers describe physical exams performed by Ayres

DA builds molestation case against doctor

Day of Reckoning Arrives for Child Psychiatrist

Dr. William Ayres 

A long and winding road toward justice is finally reaching its end. After years of delays, the San Mateo County courthouse in Redwood City will finally begin to hear the voices of 11 former patients who allege they were molested by Dr. William Ayres while undergoing school or court-ordered or parental referred psychotherapy while adolescents (in some cases, as young as elementary school-aged).

A total of 41 former patients of Ayres have gone public with their allegations of abuse at the hands of the physician (or have been identified by the San Mateo County’s DA office), although he is currently charged with molesting seven former patients between 1991 and 1996.

Normal “housekeeping” activities were on the docket this week, including pretrial motions and the assignment of a judge to hear the case. Superior Court Judge Beth Freeman (Department 3, courtroom 2L) has been selected to hear this trial, and jury selection will officially begin on Monday, June 8—a jury of 12 with four alternates. Jury selection may last up to two weeks, and testimony is expected to last 8 to 12 weeks.

Other housekeeping activities included defense attorney Doron Weinberg, prosecutor Melissa McKowan, and the court establishing a definition of the word “masturbation.” As part of an exchange in dialogue between the attorneys and the court, McKowan characterized an incident between Ayres and one of the boys as the physician unzipping the boy’s pants and started “fishing around.” Ayres, whose affect has thus far been as flat and blunted as Phil Spector’s was observed to be during his trials, visibly flinched and turned his face to the wall. Since his arrest, Ayres now uses a walker to get around, and thus far the device has remained in plain view within the defendant’s reach. He is also morbidly obese.

Weinberg also continues his confrontational ways by arranging to have freelance author Victoria Balfour, the civilian whistleblower who was a driving force in getting this case brought to trial, removed from the courtroom, stating she is a potential witness. (Even though Balfour’s knowledge of the case would be considered hearsay, as she didn’t observe the abuse and has never had any contact with the seven victims within statute. Because Balfour is a published author, with works appearing in the New York Times, the Washington Post, People and Vogue, among others, one might argue there are some First Amendments rights being stepped on here by the defense attorney.)

Ayres, now retired at age 77, was arrested in 2007 after an on-and-off investigation that began in 1987. That initial complaint was investigated but no charges were brought against the psychiatrist. Additional alleged victims came foreword in 1994 and 1996.

Ayres claims that physical examinations were a normal thing for him to do, including more than cursory examinations of the boys’ genitalia. Most child psychiatrists today do not perform physical exams on a routine basis. And the young men who allege abuse state that what they experienced was much more than a cursory look or touch—some claim they were masturbated to the point of ejaculation.

The case started moving toward justice again in 2002, when another former patient went public at the urging of his friend, freelance writer Victoria Balfour. That case was in the process of being investigated when the United States Supreme Court made a ruling changing the statute of limitations in sexual abuse cases. Childhood molestation charges can be brought by victims who are younger than 29 or whose alleged abuse occurred after January 1, 1988. The criminal proceedings of that case were dropped and ultimately a civil judgment was brought and awarded against Ayres.

The case took on new life in 2005 thanks Balfour’s own detective work, locating and encouraging former patients of Ayres to speak up about their own abuse, knowing her friend’s abuse (and the complaint brought in 1987) could not possibly have been the only two cases of molestation. Police in San Mateo began to investigate in earnest, executing a search warrant for Ayres’ patients’ records, identifying possible victims of abuse.

Ayres had been treating county-referred patients as recently as 2004.

As a result of pouring over the medical records, identifying possible victims and victims coming forward as part of the investigation, Ayres was arrested in April 2007, and was allowed to post $750,000 bail. He has not been practicing medicine in any form since that time and has allowed his medical license to lapse. While out on bail he has been treated for prostate cancer.

Ayres had been a practicing psychiatrist in San Mateo County since the 1960s where he was one of the few San Mateo County psychiatrists with a subspecialty in child and adolescent psychiatry. He hosted a controversial PBS documentary in 1968 titled “Time of Your Life,” a sex education series geared toward elementary-aged children.

This trial will be the first time most of the alleged victims will be testifying in open court. During a preliminary hearing in 2007, police officers testified in lieu of the former patients, revealing information the men has shared during the investigation, describing their ages and their experiences during their appointments with Ayres. One San Mateo officer testified that one of the young men said Ayres told him no one would believe his stories of abuse—that no one would believe the good doctor had done such a thing, and no one would believe a troubled teenager.

The delay in hearing this trial is not due to any extra time being needed by the San Mateo County District Attorney’s office. This trial has been continued because of Ayres’ health issues, issues within the court, and defense attorney Weinberg’s involvement with the recently concluded Phil Spector case.

The first start date, on March 10, 2008, was postponed in order for Ayres to undergo treatment for prostate cancer. The second start date, June 23, 2008, was cancelled with a state appeals court hearing regarding the admissibility of the patient files as evidence (Weinberg argued using the files as evidence violated the state's psychotherapist-patient privilege, lacked probable cause and permitted constitutionally prohibited searches). The files were ultimately declared admissible. 

The third delay was due to the unexpected withdrawal of Superior Court Judge John Runde from the case, who wisely removed himself from the case because of his antipathy toward Weinberg. While no specific incident has been officially offered as an explanation, the judge does have the right to recuse from a case if he or she feels that there is something that could bias his or her decision-making process. It is possible that Weinberg’s actions during a December 2007 hearing aggravated the judge past the point of no return.

A fourth start date was scheduled for January 2009, but due to scheduling conflicts due to Weinberg’s involvement in the Spector trial, a fifth start date was scheduled for May, which was again delayed because of sentencing in the Spector trial.

There are allegations of abuse going back to the late 1960s, but these of course are well past the statute of limitations and inadmissible. For some of Ayres’ former patients, their only opportunity to speak in front of the court will be at Ayres’ sentencing.

The team at T&T wishes strength to the former patients of this psychiatrist who have been brave enough to follow through and do what is right, for themselves and for the other boys (now young men) who may not yet be strong enough to come forward. You are not the criminal here.

We also hope the First Amendment rights of reporter Victoria Balfour are restored posthaste. 

William Hamilton Ayres Watchdog Site

Citizen Whistleblower Does the Right Thing —From 3,000 Miles Away

Following the William Hamilton Ayres Trial - Revelations in Justice for Patients

Doctor's molestation trial begins

Trial for San Mateo County psychiatrist accused of molestation begins Monday

Child psychiatrist to stand trial in June

Doctor delays molestation hearing

Warrant upheld in doc’s molestation case

Judge in Ayres case recuses himself

'Stain doesn't wash off,' psychiatrist's accuser says