District Attorneys - A License To Rape

This Op-Ed offered by the Wilmington Star-News and carried by the Carolina Journal Online speaks very critically of the self-serving behavior of Durham District Attorney Mike Niffong in the unraveling Duke lacrosse “rape” case. As much as my admitted gender bias compells me to sympathize with the "victim" in any rape case, Mr. Nifong's case now appears to have more holes in it than swiss cheese . . . this after he basically tried & convicted the accused Duke boys in the pre-Democratic primary press (I've blogged on this before).

The scathing piece alludes to a recent case in North Carolina in which two Union County prosecutors wheeled and dealed and lied to put an innocent man on death row. It points out that North Carolina law does not endow anyone (including the NC Attorney General) with the power to police or punish dirty prosecutors in fair proportion to the damage they do . . . or make them behave in accordance with the law.

I know from personal experience that the "good-ole-boy" system (my Dad called it "mountain justice") is very much alive and well in North Carolina. Current law in North Carolina gives District Attorneys absolute power and total discretion in the decisions they make. They suffer no oversight. Even when these servants of the public good are caught red-handed lying . . . to other lawyers . . . to judges . . . to the public . . . they walk away unscathed. Nothing substantial ever comes of it.

No one can touch them . . . except the voters . . . when they are up for re-election.

One of the definitions of "rape" in the dictionary is "to pillage and plunder". That's what DA's in North Carolina have a license to do . . . with people's lives.

As the case cited in the News-Star Op-Ed also suggests, if North Carolina legislators are so concerned about “ethics”, perhaps someone should provide the North Carolina State Bar with better direction and more disciplinary "teeth" in these "dirty DA" cases. For as it stands now, in North Carolina, prosecutors can make decisions that irrevocably change people’s lives FOREVER . . . but if they act in bad faith (it’s called legal malpractice) and are caught, they get little more than a slap on the hand . . . if they get that.

The Bar calls this kind of unbridled power “prosecutorial discretion”. As the victim of a series of white-collar crime in Randolph County, I’ve certainly experienced the butt-end of that “discretion” . . . not just in trying to get a case investiagted & prosecuted (perjury/contempt/fraud) against Randolph Hospital administrators . . . but in a 1999 “rape” case where I was forced to testify as an expert witness for the prosecution.

The case was, “The State of North Carolina v. Mitchell Wayne Watts”.

It’s public record and an interesting story, from the physician’s perspective (which people rarely hear). It's also the case that drove the nails for me in terms of continuing to offer my services for child-abuse exams. So I’ll share.

Please note that I am doing this from memory (albiet a pretty good memory). The Randolph County DA's office never answered a request I made a few years back to copy me the records and trial transcripts.

Now in my younger days, I was very gung-ho about doing my part to stamp out child abuse. It’s my opinion that there are some people out there who should not have pets, much less children – and that the law in North Carolina frequently treats abused kids as little more than property. Parents pretty much have all the rights. I did the continuing medical education every two years, and kept myself “certified” as a state-approved child medical examiner (CME). While at Randolph Medical Associates, I accepted whatever meager reimbursement the state offered for performing the exams, but otherwise worked with DSS and testified in court “pro-bono”. I considered it a community service, and deemed it a civic duty in keeping with my employment by a “non-profit” practice.

In mid-1997, DSS scheduled a child in the office for a CME visit. Right away, I questioned why I was doing the exam at all . . . as it was three months after the alleged assault & initial Emergency Department visit (where the child had already been seen by another MD) . . . and well beyond the recommended/standard 72-hours for CME exams. But DSS was persistent and I caved.

Hindsight is always 20/20 (get it Asheboro? "20/20"). In retrospect, DSS (and the PD for that matter) completely dropped the ball in terms of conducting a timely investigation, and I was dragged in to clean it up. It's fairly obvious now that before the 2000 elections, somebody in the Randolph County DA’s office wanted to look “tough” on child abuse.

The allegation was statutory rape: stepfather on daughter. Before the exam, I reviewed the Emergency Department notes (the ED exam was done a day after the alleged assault) . . . which were supportive of, but inconclusive for sexual assault (i.e. no sperm/DNA ulitmately identified - abrasions and bruises in the crotch area – no lacerations or tears of the hymen). The child had already been referred to a psychologist.

Prior to this kind of exam you conduct an interview. It has to be carefully done . . . no leading questions . . . and thoroughly documented. But this interview turned out to be no ordinary CME encounter (not that any of them are "ordinary"). There are always tears and anger and fear and/or denial on the child's part . . . and usually blinding rage/fury on the part of most of the adults hovering around the abused child (be they related or not). The physician has to deal with all of that emotion and drama - and work through it to get the job done. But early on in this interview, the child began having very bizarre “dissociative”-type episodes . . . the kind that I had not seen since my days on the psych ward during medical school & residency. The girl was flashing in and out of reality . . . quite literally "out of herself" depending on the question I asked . . . and this was not something that a child could fake. A situation like that is very dangerous. One has to be careful that one does not say or do anything that might send the child completely over the edge (one medical school memory – that I won’t share here – speaks very literally to that risk). In and out of (and between) these “spells”, the child told me what happened.

It was the most disturbing CME interview I've ever conducted. What the girl told me was consistent with the physical findings on her Emergency Room visit three months before.

She told me she had been sexaully assaulted.

Three months after the fact, my physical exam was, of course, worthless. It was a normal exam. For the uninitiated, barring horrific injury or vaginal penetration, a normal exam is exactly what an examiner will see a good deal of the time when sexual abuse is alleged. The child-abuse literature speaks to the problems intrinsic to these exams (especially pertaining to the time factor and the medicolegal "certainty" of physical findings), and I will not go into those details here. Suffice it to say, I documented my findings (a normal exam), and the interview (including the "dissociative" episodes), and referred the girl DIRECTLY to psychiatry. I told investigators that I was 100% certain something very bad had happened to that child . . . that she had been sexually assaulted . . . but I could not physically prove or testify to the medical definition of rape (i.e. vaginal intercourse or "penetration").

Legally speaking, "rape" is defined in many ways and is different from sexual assault.

Shortly after that, RMA fired me and the case fell off my radar. I figured that without the necessary physical evidence to damn the alleged perpetrator nothing would come of it. That's the way it is in the normal world.

But not in Randolph County.

Almost two years later, the DA's office called me - they wanted me back in Asheboro to testify. I was working in Virginia - substituting for a physician who was dying of cancer. I told the Assistant District Attorney (King Dozier) that the medical record was thoroughly documented and spoke for itself. In conjunction with the girl's testimony, it would support any reasonable sexual assault charge he wanted to press. Based on past experience in the courtroom, I didn't think he needed me there in person - for I knew that in the absence of physical evidence, this case depended on the testimony and credibility of the victim. Besides, I had obligations to the practice and patients I was currently serving - and to the doctor I was covering. I could not just drop everything, and come back to testify.

Mr. Dozier got very angry . . . agitated . . . "huffy" on the phone, and threatened to send deputies to Virginia to arrest me if I did not “cooperate” with him. Given the giant loads of legal crap I was shoveling on the civil side of his courthouse in my battle with Randolph Hospital, it was not the smartest approach for him to take in securing the testimony of a “star” witness for the prosecution.

I had to get a lawyer to negotiate the terms of my court appearance as an expert witness. Ironically, my own attorney (then representing me in the case against RMA & Randolph Hospital) could not represent me in the negotiations with the DA because his law firm was defending the alleged perpetrator - it was a conflict of interest. Another lawyer meant me spending more money I didn't have to ensure that I at least got treated like a human being by the Randolph County DA's office. It was just absurd.

This is how the state treats child advocates. As an aside, I’ve been called “Ms. Johnson” (as opposed to Dr. Johnson) on the stand. The lawyer who did it didn't get away it it (the judge zapped him pretty fast), but it says alot that he thought he could.

As I noted before, I had done a lot of child abuse stuff in Asheboro, and I never once asked for reimbursement for expert testimony, but this time I made sure the state of North Carolina would pay for every minute of my time.

I came down, I testified and I left. Right before I testified, my attorney and I met with Mr. Dozier. There was more than a little tension in the room. I was not a happy camper. He made the cryptic comment that the girl was not saying much and wondered aloud how I had gotten her to talk (almost as if he were asking me how) . . . that I was "the only one" who had been able to get the full story. I shrugged it off and told him that I was a Pediatrician and talking to children was my job. The conversation did not really register with me until later. I figured Mr. Dozier was just trying to butter me up.

After testifying, I did not hang around for the verdict. I had to get back to Virginia.

On the stand, I told the jury that it was my opinion that the child had been sexually assaulted (based on a review of the Emergency Department physical findings, her psychiatric responses & reactions to questioning about the incident, and what she had told me), but there was NO physical evidence to support rape (i.e. vaginal penetration). I told them what I thought had happened (I won't go into the nasty graphics here) based on the records I had reviewed and my own interaction with the child.

The thing about expert testimony is that it is a professional opinion offered in good faith. Everybody watches "CSI". Two professionals can look at the same evidence and come to different conclusions (it is, after all, how medical malpractice lawyers make a living . . . "dueling experts"). I am well aware that another physician looking at the same physical evidence in this case might not have come to the same conclusion I did. On the other hand, another physician was not in the room during my interview with this child (I could've used the assistance of a psychiatrist). They did not see what I saw. And what I saw was very disturbing and compelling evidence of psychological trauma.

Let's get back to the trial . . . where the absurd gets stupid.

I was told I would testify before the girl (I assumed it was because the Court was accomodating my schedule). My testimony was admitted as a medical exception to the hearsay rule . . . in other words, I was there ONLY to corroborate the child’s testimony. But then Mr. Dozier pulled a fast one and did not put the child on the stand in front of the jury.

This apparently was his plan all along – even as he bullied me into coming back to Asheboro to testify. There was a reason Mr. Dozier was curious as to how I "got her (the victim) to talk". You see, the child would not repeat the story during prior “voir dire” questioning by the state and defense attorneys . . . she just froze. The judge ruled her “incompetent” to testify and the state rested its case (in the face of strong objections by the defense).

When I checked in with my lawyer later, she told me what had happened. I was pretty disgusted with the whole mess . . . as I figured I’d been browbeaten into coming down from Virginia for nothing . . . because the case would have to be dismissed. Without the testimony of the victim, and with no definitive physical findings on her exam to back up the allegations, my testimony was little more than hearsay.

We all have a Constitutional right to face our accusers (that pesky Sixth Amendment).

Once again, I forgot I was in Randolph County.

The child’s stepfather was actually convicted of rape.

By all accounts, the jury made the conviction on my testimony . . . when I did NOT testify to rape . . . and his accuser never testified. My empathy for the girl aside, I was stunned.

I'm told ADA Dozier literally danced afterwards . . . he was overheard boasting to anyone who would listen that this "perp" went directly to jail on my testimony, and that I was the best thing since sliced bread on the stand.

For my part, I felt like I'd been hit & run over by a truck . . . dirty and used. I also felt a new and very unplesant sensation . . . an oppressive weight on my shoulders. A man was in jail . . . and a jury had put him there based not on what the child said to them, but what I said to them. And honestly, after getting the news that the child did not testify, I felt the tiniest twinge of doubt. I wondered . . . the thought really nagged at me . . . the child was older now (a preadolescent) . . . and she had been getting psychiatric care. So what was the problem with testifying in a closed courtroom? Why wouldn't she tell others what she told me?

Was it reasonable doubt? I don't know. But it was doubt.

Despite his pleasure at the conviction, Mr. Dozier ultimately balked at my (not insubstantial) bill for expert testimony. He said it was my "duty" as a physician to cooperate with the prosecution, and he was going to report me to the AMA if I didn't just go away (really laughable - as the AMA is not a regulatory body and I am not a member). I had anticipated problems with "the boys" in the DA's office, so before I submitted my bill, I contacted NC Baptist Hospital to get some guidance and assistance on what was appropriate and what was not. I was very comfortable that the reimbursement I was asking for was not out of line with what other experts charged. I submitted my itemized fees with a letter to judge (judges have to approve expert's fees) complaining of Mr. Dozier’s steamroller tactics, and I eventually got paid in full.

The reimbursement for my testimony helped pave my driveway. I rationalized the aforementioned tiny twinge of doubt I felt by telling myself that (1) I was forced to testify as to my opinion under threat of arrest, and (2) the driveway would've been paved a whole lot sooner if the boys at Randolph Hospital (who I considered part of the larger "good-ole-boy society") had not worked their magic on my life and career. Besides, the DA obviously didn't care about my doubt after the fact. I was just a pawn on the legal chessboard. He had his conviction.

I was not suprised when the case was reversed on appeal a year later. The reversal was made on the "right to face your accuser" concept . . . because the child did not testify, my testimony and that of the other healthcare providers she saw (and made disclosures to) was ruled to be hearsay. There was also the little matter of a man being convicted of "rape" when the preponderance of evidence presented at his trial did not support the charge. In fact, an Emergency Department nurse's testimony (about what the girl told her) was the ONLY testimony that spoke to vaginal penetration.

In my opinion, the appellate court made the right call.

But in making the hearsay ruling the appellate judges did some rationalization of their own . . . with some blather about the medical records being "devoid" of documentation that the girl knew why she was in the ED, or the psychiatrist's chair, or my office (as three months after the fact, she wasn't there to "treat" anything connected with the assault) . . . or that she knew she had to tell me/us the truth.

WHOA fellas. Pull the reigns on that horse. You DO NOT DO this kind of exam on a child without explaining WHAT you're doing and WHY you're doing it. And trust must come with this territory - I am going to believe my patients unless I have very good reason not to. The disturbing dissociative episodes I had witnessed/described/documented in the medical record didn’t even REGISTER with these learned legal eagles. When I reviewed the appellate decision, I realized that the Emergency Department nurse had described the child's affect in a fashion that suggested she had witnessed something similar to what I observed, but did not recognize it for what it was. And the judges took the nurse's description of the child's affect (a legitimate medical observation) out of context. I guess they think like rest of the leaders of North Carolina when it comes to mental health issues - in their book, psychiatric problems are not medical problems. The judges also didn't seem to consider a psychiatric referral part of medical management.

I almost wish those guys had been in the room when I interviewed this girl. They would have wet their robes.

Dripping sarcasm: “Hey little girl, you’re obviously very traumatized and teetering on the edge of sanity right now, but I need to know that you’re not lying, so could you possibly confirm that you’re telling me the truth before you phase out to whereeveritisyougo again?” The apellate judges were essentially saying that I had to read a traumatized child her Miranda rights?!?

Lawyers kill me.

The case (as well as the cases that set the legal precedent) have since been cited by the talking heads in continuing medical education classes – as an example of the need for careful documentation of what a child does and does not understand about a sexual-abuse exam . . . and about the need for the child to understand that he/she must tell the truth. It’s not bad advice, considering our current medico-legal environment. But in this case, I deeply resented the appellate court trying to place some of the responsibility for the reversal of this conviction on a doctor who (1) was dragged into a shakey case three months too late, (2) did take appropriate medical action by making a psychiatric referral for well-documented observations, and (3) was coerced into providing expert testimony (of course, they probably didn't know that).

From an investigative standpoint, the case was not handled properly from the beginning (most glaringly, the three-month delay between the alleged assault and a CME exam). Moreover, Mr. Dozier had a victim that he knew could not testify, so he did an end-run around the law (bullying a witness in the process) to press his case.

I don’t care who Mr. Dozier was trying to impress, the voters or his boss, the case should have never been prosecuted as “rape”.

The "State v. Watts" was ultimately over-turned on dishonest prosecuting.

It’s a lot like Nifong and his “rape” case against the Duke boys.

As an observation, everyone who is furious with Durham's show-boating District Attorney in the Duke case should consider blowing their hot air towards legislators who could fix the laws that allow him (and others like him) to get away with this kind of garbage. Put some REAL checks and balances in the system. Stop the blatant abuse and manipulation of public trust.

I told my lawyer to tell Mr. Dozier not to even think of calling me for a new trial . . . unless he wanted to put a very hostile (to the prosecution) expert on the stand.

The case was not re-tried. I have no idea what happened to the principals afterwards. I'm not certain I know what "justice" is anymore, but I damned sure KNOW that no one got it in this case.

Mr. Dozier has since faced the music in another case in which he was caught playing footsie with the truth. It didn’t cost him his law license, or even his job.

But it’s Randolph County after all – where doctors can get loose their job/get sued/be hosed for doing the right thing.

I have long wondered if my unhappy interaction with the DA’s office on this case have influenced Garland Yates' actions and behavior towards me now . . . including his decision to stonewall a proper formal investigation into my allegations of perjury, contempt and fraud against senior Randolph Hospital officials (he told the SBI he doesn't think it rises to the level of a crime).

Mr. Yates is demonstrating the far extreme of Mr. Nifong's behavior when it comes to "prosecutorial discretion". For all practical purposes, he slammed the door in my face and has refused to speak to me one-on-one - or refer the case for an independent investigation by law enforcement - since I first reported this ugly business to his office on Friday, June 20, 2003 . . . as of yesterday, three years ago.

I have declined to do child abuse cases ever since my dance with King Dozier (chalk up one more public service point for the boys in Asheboro). I certainly will not ever do them on an out-of-state assignment . . . for fear of being called back for another legal clusterscrew. There is not enough money in the world to entice me to do the expert thing again. And "pro-bono" will suck your soul and pocketbook dry.

Another burned-out child advocate bites the dust. Not a good thing when doctors are going to be harder and harder to find.

Pssst . . . to the “journalists” at the Courier Tribune and the News & Record: You keep telling yourselves that my case is not relevant to your current headlines.

Same to you Ed Cone.

6/24/06 Addendum: Ah "reconciliation". I now have it on very good authority (someone who would know) that the defendant in this trial moved out of state and has rebulit his life. The verdict was expunged from his record (although the appellate decision, of course, still stands and is public record). He has not been in trouble since. The accuser also moved out of state. She later made similar accusations against another man - which were not believed to the credible. This does not change what I saw that fateful day in the exam room. This girl was disturbed. But it certainly casts more doubt on the etiology for what I saw. And it reaffirms my deep conviction that the legal process in this case was warped and abused by over-zealous prosecutors.