Weinberg Out in Ayres' Retrial

Continuing with his history of the delay delay delay tactic, defense attorney Doron Weinberg is no longer representing accused child molester William Ayres. The new defense attorney is Jonathan McDougall, a former DDA, and he's being paid through San Mateo County's public defender program. (San Mateo County does not have a public defenders office.)

The money's run dry, and there are four civil suits currently pending against the child psychiatrist.

Of course McDougall asked for a continuance so he could get up to speed. He requested an April start day with a February "readiness hearing" so he could let the court know if he was ready to begin.

Deputy District Attorney Melissa McKowan is good to go, and wanted a new trial date set today.

Superior Court Judge Beth Freeman stated that she did not feel an April start date was reasonable at all. But she did grant a continuance until October 9, where it is expected McDougall will continue the tried and true practice of "I'm not ready, I need to re-investigate this whole case, Weinberg's strategy was all wrong."

Which is an insult to Doron Weinberg. By hitting the jackpot with a new grad attorney on the jury, the lone hold out, Weinberg's strategy was genius. His client was guilty as heck and Weinberg got his client another holiday season at home. Questioning Weinberg's strategies or abilities as a defense attorney are a pretty crappy tactic but all too common.

For more, go to Deep Sounding's blog and offer him some support. I guess good things are worth waiting for (shrug—the good thing being putting away a child molester for a very long time).

Details of today's hearing

Ayres gets new attorney for molestation retrial

Delay Delay Delay 2.0

Today in San Mateo County Superior Court, the child molestation re-trial of child psychiatrist William Ayres was officially deemed a “go,” with Deputy District Attorney Melissa McKowan eager to set a date.

Not so fast. Our old friend Doron Weinberg asked for a two-week continuance, so it appears he’s signed on for Ayres 2.0. Potential dates have been discussed in chambers, so one of those yet unknown to us dates will be it.

Another hearing will be held on September 11 in Judge Beth Freeman’s courtroom. I suspect I will be reunited with Caltrain in January …

Re-trial is a go!

Ayres Molestation Trial Jury Watch: One Week and at a Standstill Today

San Mateo County Superior Court in Redwood City, California

It is exactly one week today that the jury in the Dr. William Ayres case has been deliberating the fate of the child psychiatrist accused of molesting six boys, now men—and that has not gone smoothly. It was not expected to be a quick verdict, with nine counts, and strict instructions that each count stood on its own; each in-statute victim stood on his own, and that a guilty verdict with one victim did not necessarily mean an automatic guilty verdict in others.

But it was not expected to be an impossible verdict, and that’s what seems to be happening.

Despite no verdict, there is lots of news at the Ayers Watchdog blog, and I’d like to direct you there eventually. I’m not going to steal their news and represent it as my own.

A coupe of days after they began to deliberate, bloggers learned that the jury foreman was indeed the man in the front row, who wore hiking shorts to work every day, who took notes when appropriate, and who was very attentive. Court goers observed that was a good choice.

Later in the week, the jury asked for a read-back. Of course those of us waiting for a verdict did what we always do: look for meaning. Was this a good thing? Or is it a bad thing?

On Friday, a juror was dismissed because she stated during deliberations that if she were able to retrieve a long-forgotten childhood memory, why couldn’t the men who testified in the trial? Bless her, she did the right thing. This juror was prepared to talk to media-types after her dismissal, but in this day and age, there are no media types hanging around the courthouse. She has spoken to the Watchdog bloggers, and her observations give much reason for concern.

There is a deep divide amongst jurors. The individuals who believe Ayres is guilty believe it as strongly as the ones who do not believe in his guilt. Interestingly, the not guilty contingent are all childless young women in their 20s.

The dismissed juror revealed that they’d examined four of the six in-statute cases, and had yet to look at the other two. With the seating of one of the alternates, another male, certainly the complexion of the jury might change, but the naysayers are said to be of closed mind and not willing to listen or negotiate anything.

The dismissed juror was in the guilty camp.

Today (July 21) a juror called in sick.

Now we are left wondering: was this case lost at jury selection?

I did not attend the proceedings until testimony began, but observers at the Watchdog blog report that a jury was seated fairly quickly. As of yet I have not been able to locate/read a copy of the juror questionnaire. I have a feeling it will be very insightful.

Neither side employed a jury consultant.

It has been said there were two nurses and one new-grad attorney on the jury.

Are you as shocked as I am?

This case went quickly; the original timeline had it going to the end of July. However, when one witness backed out at the very last minute (that witness himself had ten counts, and his story was the most horrific, with no question that the abuse had happened. He’d undergone a digital rectal exam.), no doubt that cut off a few days. The defense shaved off a day or so when the decision was made not to call Dr. Marvin Firestone, a personal friend of Dr. Ayres, who was prepared to testify how Dr. Ayres did not fit the profile of a pedophile (stop laughing). Firestone is not an expert on identifying pedophiles. Deputy District Attorney Melissa McKowan promised to bring up a “hypothetical” about the books found in Ayres’ files—books containing nude photos of boys. The books were banned from evidence, but they hypothetical would have asked (paraphrasing): “Would your opinion change if that person was known to have in his possession, but hidden away, books full of photos of nude boys?” Voila, the books would have been in evidence.

Defense attorney Doron Weinberg is no dummy. Adios Dr. Firestone.

Mind you, the questions being asked of the jury are that not difficult; they’ve received a lot of information and to do an honest, good job so they can be at peace with their decision, each victim needs to be evaluated, the decision needs to be made if the juror believes something did happen to the boy, and that something was either lewd & lascivious behavior on a child under the age of 14, or simple battery.

In other words, for each count, the decision options are not guilty (juror doesn’t believe anything happened or the DDA didn’t prove the case beyond a reasonable doubt), guilty of a 288 (a) crime—lewd & lascivious behavior on a child under 14 (nine possible counts), or guilty of simple battery. The process must be repeated for all nine counts.

My readers already know that I utterly believe each of the men who were molested. I remember information from my child development and psychology coursework that children don’t remember or experience things like adults do. I can remember my own childhood and believing that if a grown-up told me to do so, he or she probably had my best interest at heart. Think about your most fond or traumatic memories—do you recall every little detail about the Christmas when you received your first bike? Do you remember a minute-by-minute account of the day your dog was run over in front of you when you were eight years old? 

I can imagine what went through the heads of each boy—no doubt each wondered what his penis had to do with what was going on in his brain (I am going to refrain from making jokes here—these boys were not yet old enough to be consumed by the need to listen to his penis, period.), and how strange the exam was nothing like those his pediatrician had done, on a proper exam table, with gowns and drapes and a countertop of medical devices—otoscope, ophthalmoscope, perhaps a hammer for checking reflexes, a tuning fork for hearing checks, and perhaps a nurse in the room. They had to be thinking “No way my parents would have put me into this situation. Or are they that angry with me that they knew this was going to happen?”

For the boys who did vocalize how strange they thought the whole thing was, they were listened to by sympathetic parents who assured their sons that a physical exam was normal. What’s a kid to do when your own parent says what happened to you is normal? So they buried the memory, and once they became adults, of were in what they felt was a safe place mentally or physically, brought the memory out for reflection and concluded that what happened wasn’t cool. 

I think what is bothering me most about that small group of naysayer jurors is the coldness in their thinking. They are essentially calling 10 men who sat in front of them, with various degrees of discomfort ranging from crying to being concerned if his real name got out, it could hurt his fledgling business, liars. Wait until they realize there are 41 known victims, and that there has been a civil suit against Ayres that was settled out of court.

They are also calling their supportive parents liars. According to the dismissed juror, one of the naysayers thought it was strange the parents of the now-grown men were waiting in the halls for them, being supportive. Some testified.

Which brings me to a problem I’ve had with this case from day one: the jury has been mishandled in my opinion. The jurors should never have known there were families of the molested men onsite at all. They reported to the hallway outside of Judge Beth Labson Freeman’s courtroom, standing amongst spectators, witnesses, family members, and yes, the defendant and his wife and adult son. They wore no badges identifying them as jurors. God knows what they overheard that first morning of testimony! Think of the possibility of the “sympathy factor” for the defendant, who uses a walker to toodle around the courthouse, yet who was also seen in San Francisco a few weeks back (by a very reliable person), attending an opera with no walker in sight.

It says much toward the devotion of the parents of the boys who attended every day of the trial. Every single day there was at least one parent, usually two, in the galley. Imagine what went through their heads. Even if they weren’t hearing about their own son’s case, they heard enough that was similar to their son’s story.

In every case we’ve heard about, what walked into Dr. Ayres’ office was an adolescent boy, doing things that are normal for adolescent boys to do. Psychiatric or psychological treatment is not contraindicated in these cases, but these boys were not troubled monsters—they were middle or upper middle-class boys going through the uncomfortableness that is adolescence and pre-puberty. What came out was a victim, a kid who had more to work out in his head than he ever did because of his ADD/ADHD, or self-esteem or anger issues.

No matter how many times defense attorney Doron Weinberg said the boys were troubled, “troubled” is a relative term. They were not potheads, or thieves, or animal torturers or sexual deviants. Two may have gone on to have problems with the law, but is that a consequence of the abuse, combined with their ADD/ADHD impulsivity?

I’m sure that in the naysayers group there are individuals who look at Dr. Ayres and sees a very ill (possibly dying) old man who couldn’t possibly be a threat to anyone. That’s certainly true—his complexion is pale with gray undertones, he’s lost weight during the trial itself, and he uses a walker to get around the courthouse.

The doctor’s health issues were put right out there at the beginning of the trial in opening arguments. It’s well known that his health caused at least one of the trial delays. Over the past several years he’s been treated for prostate cancer and also had major surgery for an abdominal aneurysm repair. As a consequence of these treatments, Ayres’ claims his memory is spotty.

Older memories are fairly immune to such bodily insults. I know from personal experience that my memory suffered terribly after undergoing a 9-hour spinal surgery that was supposed to take only four—there were complications. I have a 5-year period of time when the years are all the same and there are things I don’t remember happening that my daughter, then a pre-teen, totally does. I can remember dance routines from when I was a kid, but I can’t remember for sure what year my sister died.

I’ve been told that is a perfectly normal response to a grave bodily assault, including cancer treatment, and especially for a surgery that requires the patient to be on cardiac bypass (abdominal aneurysm repair fits here).

So the “I forgot” defense could have worked for Dr. Ayres if he’d been accused of molesting while he was undergoing those treatments. And he may not have remembered every single time he “examined” a boy—remember, it was not extraordinary to him. Unless a boy screamed or hit or bit him, one exam is as memorable as the next.

Supporters of Ayres’ survivors are all heartsick—we are praying that the jurors who believe Ayres is guilty stick to their resolve, and that if Ayres can’t be convicted because of mistakes made in selecting jurors, that at least a hung jury is the result, with a mistrial of course, but with the opportunity to re-try the case.

I encourage you to catch up at the Watchdog blog. You’ll also have the opportunity to read the text of a solicitation letter that has been sent out via e-mail to Ayres’ “colleagues” in the psychiatric community. 

Please stop by and offer the blog owner, Deep Sounding, your support and prayers for some sort of miracle in that jury room.

Juror replaced in Ayres molestation trial

Juror booted in doc’s molestation case

T & T’s coverage of Ayres trial

Deep Sounding's blog

The Patient Advocate’s blog

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

The Mandated Reporter

Friday’s witness in the Dr. William Ayres trial, Dr. Lynn Ponton, was my reason for having interest in attending these proceedings. She and I have something in common—we are both mandated reporters.

I had not heard of Dr. Ponton before this trial. Honestly, why would I? Child and adolescent psychiatry and child and adolescent abuse isn’t something I think about every day. And honestly, I was not fully positive of the defendant’s guilt (though as part of my nursing training, I learned to believe what a child tells you until what he or she says is known or proven by people with more expertise than I that the child is being deceitful). Just how far does a doctor (or nurse, in my case) have to go for something to cross the line and become abuse? Neglect is pretty easy to see—a hungry, dirty, perhaps socially isolated child. Physical abuse such as a child with bruises or broken bones is pretty easy to observe and diagnose with certainty as well. But sexual abuse is pretty hard to objectively see—and short of intercourse, exactly when does a physical exam given by a medical professional cross the line into lewd and lascivious behavior?

I thought back to my own career and wondered if I’d ever crossed that line. I used to do most of my work in two areas: maternal/child (specifically labor and delivery) and ER. Obviously when monitoring a pregnant woman and her baby in labor requires plenty of intimate touching. Had I ever crossed the line? Had anyone ever felt I’d gone too far during an internal exam for cervical dilatation? And worse yet—I’d been the monitoring nurse for adolescent girls in labor. Just because they are “old” enough to have intercourse and get pregnant doesn’t mean they are necessarily ready developmentally.

So really, in the back of my mind I could have been convinced that this was all a huge misunderstanding. Hasn’t happened yet.

What did I mean when I wrote Dr. Ponton and I are both mandated reporters? In California, people who work in certain occupations are required by law to report suspected child abuse. We don’t need to be able to prove it, but even the slightest suspicion means we must report it.

The law requiring reporting of child abuse, PC Section 11164-11174.3, specifically describes exactly what sexual abuse is in the subheading 11165.1. It also provides a list of mandated reporters in subheading 11165.7—item 21 lists licensed medical professionals who are required to report.

I have reported suspected child abuse in the L & D setting. I can think of one specific instance where I watched the woman (who had hepatitis) and her significant other drive up to the hospital’s emergency room, pull out her “kit” and give herself a shot of heroin before she came in to deliver her third addicted baby (that was in short order removed from her custody, just like the two previous and the two she’d have later). But I never encountered child sexual abuse—at least none that I ever recognized (and a pregnant girl wasn’t something I could report).

Dr. Ponton was only one in a very short list of mandated reporters in this case. Others had tried and been shrugged off because of the good doctor’s esteemed reputation. However, she was the one that the authorities finally listened to. She had evaluated Steven A. when he finally sought to right the wrong that had been done to him so many years before. Despite the fact Steven was an adult in his 40s at the time, Dr. Ponton was obliged to report the abuse—and she did.

As always, I refer the reader to the William Hamilton Ayres Watchdog site for additional description and insider information. I would like to add something about the morning’s proceedings, which were very well summarized by that site's corespondents.

Dr. Ponton, a tall and very attractive blonde woman who has a quick sincere smile and who looks years younger than her chronological age (she attended medical school in the 1970s) listed several conditions, part of a standard of care, that need to be met whenever a psychiatrist elects to perform a physical exam on a child.

1. Consent of the parents is utterly necessary

2. Assent of the child is necessary

3. The child’s modesty must be protected with drapes and while disrobing. Having a third person present for genital exams is a consideration.

4. The child’s genitals are never massaged or masturbated or examined to the point of ejaculation.

5. Results of the physical exam are noted in the chart and discussed with the parents and the patient.

6. The physical exam is never performed for the benefit of the physician.

7. The doctor must be aware that children have special needs, and that a child in a psychiatric setting is being seen because of a psychiatric health issue.

Perhaps having learned what happened in the Spector trial regarding dueling expert witnesses, San Mateo County Deputy District Attorney Melissa McKowan queried Dr. Ponton very early in her testimony regarding her fees ($650 an hour as a private expert witness; $300 an hour discounted to the county). I have no doubt she will ask about fees when defense attorney Doron Weinberg trots out his expert witnesses, one of whom is known to be Dr. Elizabeth Loftus, yes, the memory expert who testified in the Phil Spector trial.

At least once during Dr. Ponton’s testimony I saw Weinberg do “that thing” with his lips.

Right off the bat Weinberg objected to Dr. Ponton’s testimony of the “red flags” list. He claimed he’d not been given the medical records, police records or her report in a timely manner. He said he was not prepared and could not conduct a proper cross-examination because he did not know what materials Dr. Ponton had used to create the red flag list.

He’d already tried to delay Dr. Ponton’s testimony on Tuesday, saying that the prosecution hadn’t gotten her report to him in a timely manner (he was offered the report Sunday, June 21, but did not have a decent fax machine. The report was delivered early Monday afternoon, June 22).

Weinberg asked that Dr. Ponton’s testimony regarding the red flags be delayed until Monday, June 29, so he could better prepare.

McKowan was ready for this now well-known Weinberg tactic (delay delay delay) and stated he has had the police reports and the available medical charts in his possession from the beginning. Dr. Ponton is unavailable on Monday morning—she starts a new child and adolescent pediatric psychology rotation with new students on Monday. McKowan also noted she'd not yet received one of the defense's expert witness reports yet either—one she'd asked for a couple of times.

Dr. Ponton was asked if she could be available on Monday, and she reluctantly said she could try to shift some responsibilities, but she had to be back in San Francisco by 2 p.m.

Judge Beth Freeman asked Weinberg if he could look over the charts during lunch, and he obligingly said he’d try.

Weinberg was not allowed to delay Dr. Ponton’s testimony though there was the possibility she would have to return on Monday. As it turned out, her testimony finished early Friday afternoon.

The red flags list, which is summarized on the Watchdog blog, were created by Dr. Ponton by reading through the alleged victims’ medical charts (when available; read into evidence later in the day is the reason some charts might not be available: records from 1977 to 1982 were destroyed because of a corporate decision [Dr. Ayres was in a group practice at the time]) and police reports.

The red flag list was the source of plenty of objections from Weinberg (irritating a few jurors in the process—I observed a few heavy sighs and rolling eyes in the jury box whenever the defense attorney got nit picky [rightly so] over McKowan forgetting to preface a case history by saying “in a hypothetical case where …” I also overheard her [from across the room] say “This is ridiculous” when a sidebar was called because of one of Weinberg’s objections). The red flags are the areas where Ayres failed to maintain a proper standard of care when administering physical exams in a psychiatric setting.

An interesting remark made by Dr. Ponton regarding testing for learning disabilities and ADD/ADHA tend to be more in the realm of psychologists. Psychiatrists are of course aware of the tests, but a psychiatrist would be involved in prescribing medication, something, of course, a psychologist (who may have a Ph.D. but not a medical license which is needed to prescribe medication) cannot legally do.

There are contrasting schools of thought regarding the appropriateness of physical exams of children in a psychiatric setting. As revealed in a noted psychiatric textbook, there are a group of practitioners who believe that physical exams are nearly never done (One thing lay people must understand about the practice of medicine: one cannot say something is “never” or “always” done. Even though medicine is a science, it is not an exact science where absolutes can be assigned.), and another group (Greenhill and others) that believe physical exams are underutilized in the psychiatric setting.

But even in making that statement, there are ways to mislead a jury, and Weinberg did an excellent job of getting the jury to take notice of the “physicals are underutilized” school of thought. What he cleverly did was read a partial passage from a psychiatric textbook that made that statement.

What McKowan equally as cleverly did to shoot that statement down was to have Dr. Ponton read additional passages from the section—statements that further defines the specific situations in which a psychiatrist could perform a physical exam.

ADD, ADHD, self-esteem, and impulse issues aren’t on the list. And the few things that are on the list—including an evaluation of enuresis (bedwetting)—qualify the need for a physical exam, but assumes no physical exam has been done by the child’s pediatrician (and the doctor should never hold the cup, or the penis, or observe the child urinating). Very importantly, a great deal of warm-up and relationship building must be done by the psychiatrist who performs those physicals—which are seldom done at the first visit. Nearly never is there an acute need for a physical, and a practitioner would usually refer the child back to his or her pediatrician is there was need for a physical exam. A non-strangulated hernia is not a reason for a physical exam by a psychiatrist! In the rare case of a physical exam given in a psychiatric outpatient setting, the child must be fully engaged by the psychiatrist and the psychiatrist must fully meet the child’s need for modesty and comfort.

There is never a reason for a child to be fully naked and exposed, or have his pants down around his ankles. Consent for a genital exam must be very specific—the psychiatrist must specifically say “genital exam,” a very different exam than a “physical exam” which traditionally includes height, weight, vital signs, and auscultation of the lungs, heart and abdomen, and perhaps palpation and percussion of the upper body.

Chances are the child’s pediatrician has all of that information anyway, though it is at times necessary for the psychiatrist to take vital signs, usually heart rate, blood pressure and the child’s weight when monitoring a child taking certain medications, especially those for ADD and ADHD.

Late in Dr. Ponton’s testimony, she clarified and reinforced the psychiatrist’s role in caring for a pediatric patient—is the psychiatrist a consultant, which is usually the case—or is he or she the primary care physician (rarely, if there is no family pediatrician)? And if there is a pediatrician, check with that physician first to repeat anything—don’t overlap and do the same thing twice to a child regarding a physical exam.

I saw one female juror have an ah-ha moment after that remark was made. I’ve seen that look—I’ve done it plenty of times. Of course I also saw jurors yawning, examining their fingernails, staring off into space. There is a male juror who always listens and takes notes. A female juror asked for a new notebook.

None of the common-sense things were revealed in the existing medical records of the six former patients of Dr. Ayres who have testified thus far. Dr. Ponton admitted she was unable to read 100 percent of Dr. Ayres’ handwriting in the available medical records, but she was unable to find any reasons given for the need for a physical, and parents, even those who did consent to a physical exam, were not informed a genital exam had been done.

Dr. Ponton stated that children, especially males, do not tend to make false allegations of sexual abuse. In this case, of course, there are memory and cognition concerns, with the abuse having been 20 or 30 years previously. When Weinberg tried to get into a discussion about memory, he asked Dr. Ponton if she was an expert in the area of memory and she said no. He then made a statement about Dr. Elizabeth Loftus being the leading expert in memory—and Dr. Ponton said Loftus was not the leading expert on memory! Let the dueling experts begin!

Weinberg did make attempts to get under Dr. Ponton’s skin, but she is a child psychiatrist for a good reason—she is a level-headed cool customer! She did an excellent job of making her points, even though one of her answers was later called non-responsive and struck from the record. But it’s very hard to take remarks back once they’ve been made. Nor did she ever raise her voice, and she chose to not address Weinberg as "Doron" even after he said it was acceptable, because she'd been referring to McKowan by her first name (she stopped doing that shortly thereafter).

Once Dr. Ponton’s testimony was over, parts of a deposition transcript taken from Dr. Ayres during the Steven A.’s civil case were read into evidence with McKowan reading the role of questioner, and Deputy District Attorney Chuck Finney reading Ayres’ words.

Dr. Ayres claimed that there were children who asked him to perform physical exams, and that he did not initiate the process! He also claimed he asked children if the child would “like for him” to look at something—to examine his stomach if he had a stomach ache, to look at his groin if he had poison oak or another rash.

But he always recommended the child see the pediatrician for the exam, and did it only if it was an emergency (a hernia is not an emergency!) or the child consented. The penis would be more closely examined if the kid offered complaints of itching, or was worried something was wrong with his reproductive organs, and of course sometimes boys masturbate so much they cause sores.

(Male readers: Please leave a comment if you have ever masturbated yourself to having sores. I refuse to believe adolescent boys are that crazy!)

Dr. Ayres also claimed that he did not think he’d ever asked a child to pull his pants down, and that most parents were grateful the exam had been done!

I believe that defense attorney Weinberg is doing a fine job with the material he’s been given. One of the parents of an out-of-statute victim remarked to me that she felt Weinberg “enjoyed” defending child molesters. I would not go so far as to say he “enjoys” it—but it is his job to ensure the accused person’s rights are upheld, and Weinberg is no doubt a challenging adversary for any district attorney. All he can do in a case like this is make sure his client’s rights aren’t stepped on, and to try to plant seeds of doubt in at least one juror’s mind. The average juror does not have the knowledge base I have in this case—I wonder if there are any health care practitioners or social workers on the jury? I'm betting no. A defense attorney would not want me on a jury like this, so I have to assume anyone who night understand child abuse (even just a little bit like me!) was not chosen. However, no doubt some of the jurors are parents, and there is no way they can totally put their feelings aside in this case—what if that had been my child? What would I want the jury to do to help make things right?

Even though she was full of fire and very passionate and effective on Friday, I hope that Melissa McKowan will be studying the transcripts of Alan Jackson’s cross-examination of Dr. Loftus during the Spector trial when the time comes.

Questions I hope McKowan answers somehow and is able to introduce into evidence:

1. Is there a reason that no juvenile referral patients have testified? Are those medical records sealed or destroyed or unavailable? How many San Mateo county juveniles passed through Ayres’ doors? Were there kids from other counties?

2. I would like for her to get on the “no gloves” thing a bit more. Dr. Ponton mentioned that gloves are worn in the rare case of a genital exam to make the child feel more at ease, but I think that if the jury could be skeeved out about the lack of universal precautions—something every medical practitioner knew about from the late 1980s—they might better understand the inappropriateness of the exams themselves. The lack of gloves is a huge hint that the exams were for the benefit of the doctor.

On Monday’s schedule are the four corroborating out-of-statute witnesses. The prosecution might rest next week.

California Codes: PENAL CODE SECTION 11164-11174.3

Expert: No reason for exams performed by psychiatrist accused of child molestation

The Trial: Week Four, Day Four

A CONVERSATION WITH/Lynn Ponton; An Expert's Eye on Teenage Sex, Risk and Abuse

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