By Mark David Blum, Esq.
Every trial I do, every case with which I become involved, becomes itself a mini classroom. One of the great joys of my profession is the ability to become enmeshed in something new and often unique in its own right. Learning aside, these new experiences themselves make life far more interesting. Still, the lessons themselves are eye opening.
Ferinstance, in football if a red flag is thrown, the coach wants a play reviewed. To a bull, a red flag is a direct challenge to its masculinity. I learned recently that to a child protective worker, a glass of wine is a red flag when given by an adult to a child. I learned that giving alcohol to a child, even your own child, is seen as being a deliberate effort to reduce a child’s defenses. This so-called “priming the pump” (pun intended) is the only viable reason why an adult would let a child have a taste of wine.
That lesson about the wine and the pump was a new lesson for me. For nearly fifty years, I was always under the impression that part of parental responsibility was to make decisions at what age a child can start to learn about alcohol and at what pace. Heck, I even thought it was perfectly proper to allow a child a taste of wine at the dinner table if the child wanted. Supposedly this is normal practice in Europe.
In Montgomery County, New York, if a parent or friend of parent gives a child wine, caseworkers at the Department of Social Services will see it in a very ugly way. The specific words used were “red flag”. So much do they read evil into a situation that police will be contacted if it is learned an adult gave wine to a child; especially if the adult is not the parent. (See my February 15, 2009 essay on Unlawfully Dealing with a Child).
Over the years I have come across people in the caring professions – social workers, counselors, and even pediatricians come to see innocuous behavior as being sinister. This ‘wolf-in-sheep’s-clothing” has been shown on so many occasions as being much ado about nothing. The panic button is being hit far too often and too hard. I can rattle off three people I know personally who have been taken down a very dark and ugly road because someone jumped the gun and saw an evil motive behind innocent behavior.
I learned in trial that children’s memories can be easily and accidentally tainted. Fantasy can become reality and reported events can be twisted to take on a life of their own. Consider this innocent scenario: Every parent has touched their child’s private parts. In the course of changing diapers and cleaning up bodily messes, it is part of the process that some part of you is going to come into contact with some part of them. Giving a child a bath means just that – that you are giving a child a bath. Imagine the child to whom you gave the bath was three years old and later told a mandatory reporter like a teacher that you touched their privates. I guarantee you in quick time you will be arrested. There is such poor training and oversight that most children’s recollections of an event can be twisted or worse, that the events themselves are pure fantasies and cannot be trusted.
The lesson learned is that from the start, any interviewing of a child by authorities must be videotaped for later forensic examination. The best way to assure what a child is telling is true, is to show a proper forensic interrogation. That is the only safeguard in place to protect both the child and the accused. Without it, as in Montgomery County, you have no written record, audio record, nor video record and hence no means by which you can validate and corroborate what is being said by children.
In our society, being accused of engaging in unlawful sexual behavior with a child is among the lowest of the low on the scale of behavior. Few are the things more repugnant than perpetrating a sex crime upon a child. So reviled is this behavior that we respond emotionally when someone is even accused of doing so. Convicted at the accusation, everybody, even the media is prone to hang an accused without even a trial. Add into that calculus the accused being the member of a class of persons of notoriety in such cases, and an individual suffers a fate worse than death merely upon an accusation.
I cannot imagine what pain and misery must be felt by those wrongly accused. I have seen the desperation and fear. At times I have also seen great courage far above even what I wonder if I would have had. The men I have represented over the years facing sex charges have been without exception, strong of will and character and stood up to false allegations … and prevailed.
But I want to throw my own red flag at what I have learned is an entire industry that has set itself up around these cases. Over the recent past I have seen dozens of websites and read hundreds of pages written by people I see as preying on the vulnerabilities and fears of people accused by children of sex crimes. There are private investigators and self proclaimed experts on tainted memories out there and online making tons of money and doing absolutely nothing but confusing their victims.
What made me see red was how loyalty between accused and website can be built up to the point that the lawyer is seen as subservient to the self proclaimed expert. In a recent case, one such clown was hired before me and drove a wedge between attorney and client. A lawyer builds a strategy on a case based on the unique facts presented. In many ways a child sex case is like any other criminal case. At the same time, every criminal case is unique onto itself based on the specific facts thereof. A lay person telling a client what motions their attorney should be filing is the wrong approach. So as to please a client and prevent a lawsuit, once a client becomes convinced a motion should be filed, the attorney almost must do so to avoid the later grief. It is patently wrong. Accusing the lawyer’ strategy as being “ego” boils my very red blood. Oh, and I also have a personal place in my heart for Mr. Nichols; the sting of his message was received loud and clear. I hope he enjoys his meal of crow and humble pie.
I also wanted to throw a red flag for a review of the play as I debated with a Priest the merits of our respective philosophies. I opined he should take a plea and walk away from his profession and start life anew. That is part of my job; to discuss such issues. Being a Jew, I had a very one sided view of Catholics and Catholicism. Married to a Catholic myself, I had a rare opportunity to have some in depth conversations about the basics of life as we know it. I got an even rarer chance to learn about Catholicism from the vantage of the pre Novus Ordo ceremonies. First let me say that I admire the strength of mind and body it takes to say the Rosary for hour and hours on end. That deeply held faith inspired me as I watched and wondered what in my life do I so honor. I have met men of God who have such blind devotion and social innocence who yet are more worldly than they appear. Whatever may be our disagreements, Catholics and Jews share one common bond – guilt. But to give up your life for God, I cannot imagine doing so or what can so drive a man to that life. You have to respect them even if they are crazy.
In the great classroom of life, I am today a wiser man for the people I have come to know. The lessons learned will remain with me. No two people can come into contact with one another without leaving a piece of themselves behind.
