Shanley Hearing Report

Dear Friend of Justice,

There may be worse ways of spending a beautiful spring afternoon than sitting in a Massachusetts court room, but they don’t readily come to mind.

On May 29^th, I and about 35 others attended the hearing on the new-trial motion of Paul Shanley. About half of that number were supporters of Paul. Of the rest, many were from the media. I only recognized a handful of people from the victim-survivor cult.

Shanley was represented by an excellent lawyer – Robert Shaw of Cambridge. The Middlesex DA’s office was represented by Loretta Lillios and Bethany Stevens. The one who did most of the talking was Ms. Lillios.

Perhaps I should say the mumbling, as I was barely able to understand anything that either of them said. While Mr. Shaw spoke from a miked podium at the back of the courtroom, Ms. Lillios and Ms. Stevens stood directly in front of the judge and spoke in weak monotones.

In the new-trial motion, Shaw raises four issues:

1. That Shanley’s lawyer, Frank Mondano, had failed Shanley by not demonstrating that the theory of repressed memory is not accepted by the scientific community.
2. That the Court’s statute-of-limitations instruction to the jury was erroneous.
3. That the Court had failed to follow mandated procedures during jury selection and that Mondano had failed to object to the same.
4. That a court officer had secretly and inappropriately intervened to influence a key prosecution witness.

I will not give a detailed account of the hearing, which lasted for over two hours. And I will confine myself to an account of a discussion of the first issue, which I believe is the one of most interest to us.

Shaw said that the evidence on which Shanley was convicted was “the thinnest of thin.” He said that justice was not done and that the court needs to answer questions about the validity of repressed memory.

According to the allegations, every Sunday morning Shanley would remove up to three children from a class of 12, take them to various spots in the church, and sexually abuse them. Yet not one teacher had testified that he or she had seen Shanley remove a child from a class. One child had testified that when in second grade, Shanley had abused him during confession. Yet children do not go to confession at such a young age.

The allegations arose when a childhood friend of Paul Busa told Busa that he (the friend) had recovered memories of being abused by Shanley 20 years prior. Busa soon recovered identical memories and joined his friend in pursuing a lawsuit. Busa’s “memories” were images in his mind that occurred in the wake of massive media exposure. At the time, Busa even made statements that he didn’t know if these images were memories or not.

Shaw stated, “Repressed memory is not generally accepted in the scientific community. Shaw said that the court had to consider three questions.

1. Who is the proper scientific community?
2. What is valid scientific methodology?
3. Was information at the trial accurately and fairly presented?

Shaw stated that he had presented a lengthy and detailed affidavit from Dr. Harrison Pope, an internationally respected memory scientist. He contrasted Dr. Pope with the prosecution’s “expert,” Dr. Daniel Brown. Shaw pointed out that the professionals that Brown relied upon included people who had been indicted and had lost their professional licenses. They included people who subscribed to unsupported theories about brainwashing by the CIA, Satanic cults, and the Ku Klux Klan. (See this speech by Dr. Corydon Hammond, co-author with Brown of Memory, Trauma Treatment, and the Law.)

Dr. Brown, first of all, misidentified that relevant scientific community. He stated that this community included social workers, hypnotherapists, and clinicians. None of these people are scientists.

In discussing methodology, Brown mentioned scholarship, clinical observation, and constructing meaning from observation. This is not scientific method.

Shaw stated that the prosecution’s other witness, Dr. Chu, had conducted retrospective studies in which people were asked if they had ever remembered things that they once had forgotten. Such “studies” are scientifically worthless. [Also, forgetting is very different from “repressing.]

When Shaw expressed the opinion that the theory of repressed memory was “junk science,” Judge Neel asked if it wasn’t the case that Dr. Elizabeth Loftus believes that it does exist but is very rare. Shaw disputed this. I am sure that he was right. As a scientist, Dr. Loftus would never state that the nonexistence of repressed memory has been proven. She may have said something like, “If it exists, it is very rare.”

Paul Busa claimed that he has been abused and had instantly forgotten the abuse many times over. The only way the jury could make sense of such statements was to subscribe to a belief in repressed memory. The prosecution’s entire case against Shanley rests on belief in repressed memory, yet Shanley’s trial attorney, Frank Mondano, did not challenge the theory at trial. Mondano only called one witness – Dr. Elizabeth Loftus. But Loftus could not effectively respond to Dr. Chu because Loftus was not a clinician. [Note: I attended the trial. Mondano didn’t have a clue about what to ask Loftus. After prosecutor Lynn Rooney did a cross-examination that was mainly an attack on Dr. Loftus’s character, Mondano did not even bother to do a redirect.]

Shaw pointed out that the past thirty years of memory research should have been used in the Shanley case to discredit the theory of repressed memory. Yet because Mondano did not challenge it, the court relied on unreliable information to make erroneous decisions.

As I said, it was very difficult to hear and understand the DA’s response. But she seemed to try to make the following points:

1. That the Massachusetts Supreme Judicial Court has given its full blessing to repressed memory in the case of Commonwealth v. Frangipane.
2. That “The DSM-IV [Diagnostic and Statistical Manual of Mental Disorders] accepts dissociative amnesia [repressed memory] and that should be enough.”
3. That Shaw had “unjustly maligned” Dr. Brown’s book, which is an award-winning leading textbook.
4. That Paul Busa’s abuse had been corroborated because he was able to describe a number of rooms in the church and also because his teachers [not Shanley] had often sent him out of the room for misbehavior.
5. That Frank Mondanao may have decided not to challenge the theory of repressed memory for “tactical” reasons.

The Frangipane decision is not a good decision. That should surprise no one – the Massachusetts Supreme Judicial Court is not a good court.

Shaw had addressed the Frangipane issue in his written response to the Commonwealth. I will quote from that document.

In an effort to characterize the Defendant’s claims as having no merit, the
Commonwealth relies on several erroneous assertions concerning the Frangipane case. Commonwealth v. Frangipane, 433 Mass. 527 (2001). In Frangipane the issue of “repressed memory” was not subjected to any Lanigan hearing, and therefore no competing expert evidence was admitted and considered by any Court for a determination about general acceptance, standardization, or any other factor inherent in a proper Lanigan/Daubert evaluation. This is important context for the issues now before this Court, and perhaps explains why the Supreme Judicial Court’s opinion in Frangipane ultimately retained language indicating that the Court’s holding did not reach the question of whether there was general acceptance of “repressed memory,” or whether a Lanigan hearing was required. Commonwealth v. Frangipane, supra, supra, at 537 (“We need not reach the defendant’s additional argument that the judge erred in failing to conduct a preliminary hearing to determine the reliability of the Commonwealth’s proffered expert opinion testimony on the subject of dissociative memory loss and recovered memory”).

What occurred in Frangipane is the Supreme Judicial Court modified a small portion of its opinion in response to an amicus brief filed by the Leadership Council in coordination with a petition for rehearing. See Exhibit 1, Motion for Leave to File Amicus Brief, ¶ 2, stating that the Leadership Council is “filing an amicus brief in the context of a rehearing petition”). That amicus brief, as was true of the petition for rehearing, received no opposing response before the SJC, and did not accurately represent the science -- a fact the Defendant has demonstrated at bar through his filings to date, and is capable of demonstrating with specific, point by point reference to the content of the amicus brief if necessary. Not only is the Frangipane case of little guidance for this reason, but it is highly questionable as a reliable guide where the Supreme Judicial Court did, as the Commonwealth points out, cite to Dr. Harrison Pope and others, those cites providing part of the basis for dicta initially shooting down the Commonwealth’s suggestion that no Lanigan hearing was required. Commonwealth v. Frangipane, supra, at 536 n.13. Indeed, the after-the-fact change in dicta left language intact indicating that “repressed memory” is “highly controversial” -- a label which defies any notion of general acceptance. In the absence of any Lanigan hearing below, it is impossible to say that a multi-factored Lanigan/Daubert analysis by the Supreme Judicial Court determined “repressed memory” evidence should be admitted despite the absence of general acceptance in the scientific community.

In stark contrast to the materials submitted in support of the Frangipane case, the Defendant has produced for this Court affidavits from perhaps the most competent experts in the world. These experts, seven (7) years after Frangipane was decided by the Supreme Judicial Court and approximately 11 years after the case was litigated in the trial court, have demonstrated the state of the science, that “repressed memory” is not generally accepted and, indeed, there are not even scientifically valid error rates from which the invalid studies relied upon by Dr. Daniel Brown could be used to assert a theory of “non-overlapping” “methodological shortcomings” (C.Mem. 16). World renowned scientists such as Dr. Pope, whose scientific competence dwarfs that of Dr. Brown, cannot simply be pushed aside in disregard as the Commonwealth suggests, as if his representations concerning scientific validity and acceptance in the scientific community are the clamoring of a “vocal minority” (Dr. Brown’s self-serving term). Dr. Pope’s affidavit along with the other materials now before this Court demonstrate that Dr. Brown misrepresented the science to this Court, a fact now becoming evident in other areas of the country. See Exhibit 2, Federal Court’s Order vacating a 1.75 million dollar judgment after Dr. Brown’s testimony was challenged post-verdict on grounds of misrepresenting the science to the Federal Court; Exhibit 3, Order of the Marion Superior Court dated Dec. 31, 2007 at ¶ 4, striking, among others, multiple portions of Dr. Brown’s supplemental affidavit pursuant to claims that his affidavit suffered from “flawed reasoning and definitional deception,” and thereafter granting summary judgment for defendant. See also, e.g., FMSF, Vol. 17, No. 2 (2008), Daniel Brown, Ph.D., Accused of Misrepresentation: Nebraska Jury Award of $1.75 Million Vacated in Doe v. Vella, U.S. Dist. Ct. D. Neb., No. 8:04-cv-00269; The Free Republic, Expert Witness Testimony May Have Torpedoes 1.7 Million Award, http://www.freerepublic.com/focus/f-news/1955209/posts (“Court papers suggest a $1.75 million jury award in a sexual abuse lawsuit was vacated by a judge because of questions raised about a key witness’ credibility”); The Sioux City Journal, Lincoln Nebraska (AP) (2008), Judge tosses $1.75 million judgment for priest's daughter.

Points 4 and 5 of the DA’s argument are absurd on their face.

As for the inclusion of dissociative amnesia [repressed memory] by the DSM-IV, I am led to paraphrase Hamlet: There are more things dreamt of in the DSM-IV, Horatio, than are in heaven and earth.

The DSM-IV is not a scientific document. It is essentially a dictionary of alleged “mental disorders” published by the American Psychiatric Association. If a significant number of psychiatrists believe in the existence of a disorder, it will be listed in the DSM-IV. And a significant number of psychiatrists, unfortunately, believe in dissociative amnesia [repressed memory].

Psychiatrists are clinicians, not scientists. The relationship of psychiatry to science is more complex than that of other branches of medicine. For example, psychiatrists treat a number of conditions that have well-established physiological bases: schizophrenia, bipolar disorder, etc. Psychiatrists also treat patients suffering the after affects of trauma. In these cases, the relevant sciences are not physiology and biochemistry but experimental psychology. Psychiatrists themselves do not do science in the course of treating people. The psychiatrist’s office is not a scientific laboratory.

The heart of the problem is that lawyers, judges, therapists, and journalists in particular and the American public in general do not like science and do not understand science. In this regard, in my opinion, those calling themselves liberals are worse than self-acknowledged conservatives. Liberal-arts majors take only the math and science courses forced upon them and revel in their hatred of these cold and heartless fields of study.

What I find cold and heartless is allowing the lives of innocent people to be destroyed by junk science in the courtroom.

Science is not well-taught, especially in our failing public-school systems. And citizens are not educated in science by the media because journalists have no better understanding than their readers.

The attorneys who work in the Middlesex DA’s office may sincerely believe that the DSM-IV has a scientific basis and that Dr. Daniel Brown is a generally respected scientist. If so, that is very frightening.

Dr. Brown’s book is junk. It has no merit. It is disgraceful that it has won awards. It is disgraceful that it is being used anywhere as a textbook. As a textbook it can only perpetuate dangerous misinformation.

Dr. Richard McNally is Director of Clinical Training at Harvard University. Although clinically trained, he has also distinguished himself as a scientist. McNally was so appalled by Dr. Brown’s book, that he was led to research and write his own book to refute it. If you want a glimpse of real science, I highly recommend Remembering Trauma by Dr, Richard McNally. It leaves Brown’s book in tatters.

I attended the trial of Paul Shanley. Some of you may be interested in reading my remarks from that time.

Read more about the Shanley case.

-Bob Chatelle