Of penile plethysmographs and other stuff
A month ago, I did a post on the decision of a Summit County judge admitting the results of a polygraph in a criminal case. Thanks to the gang over at the Appellate Law & Practice blog, we now know that the Virginia Supreme Court considered a somewhat-related issue recently, and concluded that the result of a penile plethysmograph was not admissible. For the uninitiated, the penile plethysmograph is perhaps best described in this 9th Circuit opinion from a few years back:
Penile plethysmograph testing is a procedure that “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.”
Well, that’s one way to jump-start a party, I suppose, but in the Virginia case the results of the plethysmograph were introduced at a sentencing hearing as proof of the defendant’s likelihood of committing future sexual offenses. Still, in this Christmas season, you might want to keep the penile plethysmograph in mind as a gift for that hard-to-please someone. Of course, my personal preference on that score is the Care-o-meter, as I’ve mentioned before.
As you may have guessed, this is one of those days where the legal discussion will be, umm, somewhat tangential. I’ve turned the comment feature back on: just click on that little “Comments” thing at the bottom of the post, and you can heap praise or scorn upon me as you deem appropriate. I’ve also touched up the blogroll a bit, putting in some new ones. They’re interesting to check out every now and then. They can give you more in-depth treatment of some issues, sometimes they make insightful points, and sometimes they’re just interesting comments from people who are in the trenches in our justice system. In the latter category is this, advice from a public defender, which actually is for anyone who practices criminal law. If you do, you’ll have no trouble recognizing the appropriateness of this comment:
I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or technicality for you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13 year old. By the time we meet, much of your fate has been sealed, so don’t be too surprised by your limited options and that I’m the one telling you about them.
What really caught me about the piece, though, was the closing line, the perfect retort for those party conversations which start with “How can you represent people you know are guilty?”:
For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There’s nothing wrong with any of my clients that could not have been fixed with money or the presence of at least one caring adult in their lives. But that window has closed, and that loss diminishes us all.
Tomorrow I’ll have a post about a good decision out of the 9th District, on Thursday about a bad one from the 8th, and on Friday we’ll discuss the Georgia Supreme Court’s rather interesting take on the issue of sex offender residency restrictions.
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| | Posted by Russ Bensing at 7:10 am
June 17th, 2008 at 4:50 pm
The following is an account of my son’s ordeal. I can’t get anyone to help us and we are running out of time. My son is being made to register quarterly for life and that is not what is required of him by law. Please help or advise if you can.
Thank You, Wendy Beal
I’m writing to you regarding a situation involving my now 14 year old son, Robert. He was sexually abused at a young age and I had voluntarily placed him in treatment at age four because he was emotionally impaired as a result.
He also spent nine years in special education due to this impairment. This went well until his treatment was sabotaged by the Grand Traverse County CPS. This is important because the Antrim County CPS built a case against my child over several years following this treatment.
Both counties are part of the 13TH Circuit Court.
[ Robert apparently was acting out sexually in the community and it was reported to and documented by the CPS in both counties. I requested and was denied counseling services for Robert by this same court in 2001while my family was being provided services by Mancelona Family Resource Center. My caseworker, Jeannie Donnagan assisted me in applying to the court for services. However, halfway through my case she quit her job to become a CPS worker.
Ms. Donnagan could have and should have reminded the court of this. She wasn’t the worker involved, but it is documented in our CPS file, so somebody should have noticed.]
Rather than notify me, Robert was repeatedly pulled from class and interrogated by the CPS. Since Robert was the one accused of wrongdoing, shouldn’t there have been a parent or attorney present?
In 2003 Robert touched his cousin through her underwear and threatened to kill her if she told anyone. Robert was barely 10 and my niece was 11. We didn’t find out about it until January 2004 and immediately sought counseling for Robert.
The juvenile justice/ CPS worker and the prosecutor told us that in order for the court to pay for the treatment, Robert would have to plead guilty to Second Degree CSC. They assured us that Robert’s record would be expunged when he turned 18 if he successfully completed treatment and stayed out of trouble. They also told us that it wasn’t necessary for Robert to have an attorney - we could have one - but it would only drag it out even longer.
Robert’s fingerprints, mug shot and DNA were taken.
As soon as Robert pled guilty, he was locked up in juvenile detention for four months before being sent to Havenwyck Psychiatric Hospital in Auburn Hills for 17 more months.
Havenwyck is a private hospital owned by Psychiatric Solutions Inc.
Medicaid wouldn’t pay for this treatment so Antrim County DHS, Probate Court and Community mental health picked up the tab. They made me pay child support and billed me weekly.
Robert was threatened by the juvenile justice worker that if he didn’t hurry up and finish treatment he would be sent to juvenile detention. She then felt the need to share with Robert that she used to be employed by Wakkenhut and while working there, a group of boys dragged another boy into a room and sodomized him until his rectum fell out and he bled to death.
Treatment at Havenwyck involves torture and experimental behavior modification techniques.
Covert Taping - Robert was made to write a healthy script and a deviant script. These he read aloud into a tape recorder. When he became aroused, he had to break open an ammonia capsule and inhale deeply. Staff members listened to these tapes to make sure that he choked. That meant that he was doing it properly. Robert suffered horrible nosebleeds for months after he came home.
Plethysmographs - This is a test where the older boys were taken out of the facility. A ring with sensors is placed over the boys penis and they are shown sexually graphic material. Robert was too young to do this, but went out of the facility with two other boys and a staff member to act as chaperone.
This was necessary because a staff member named Mr. Ari was accused by a gay black boy of engaging in oral and anal sex with him in the bathroom of the facility where they do the plethysmographs.
This happened before Robert arrived at Havenwyck yet Robert met Mr. Ari. That was because he was still working on the unit. He was transferred to another unit and eventually let go, but as far as Robert knows this was never investigated by the state.
Most of the boys in Havenwyck are wards of the state. Since Medicaid won’t pay for this, who is paying who?
Robert successfully completed treatment in January 2004. He was home for nine days when the juvenile justice worker called to inform me that Robert had to register as a sex offender by the next day or he’d be in trouble.
This was the first time we were informed that Robert would have to do this. Otherwise we would have had an attorney and never would have agreed to their deal.
We complied and tried to get on with our lives. There was never any documentation regarding the rules that Robert is supposed to follow.
The day that Florida Governor Jeb Bush deemed ammonia capsules to be torture, Robert was released from his strict probation without a hearing. The court order said nothing about him having to register quarterly for the rest of his life.
We have been trying to pick up the pieces and go on.
However on May 17, 2007 the state police showed up at our home and “apprehended” Robert for failing to register quarterly since he came home more than a year earlier.
The state trooper was confused by all of this and believed me when I told him that that was the first that I’d heard that Robert had to register. I have no documentation from Antrim County regarding the rules Robert is supposed to follow.
According to the paperwork the trooper showed me, Robert’s DNA isn’t on file. Antrim County took a cheek swab, so where is my child’s DNA?
There was also confusion as to why my son was sentenced so harshly.The only thing the trooper could think of was the fact that my niece was under the age of 13.She was 11 and Robert was 10 at the time of the incident.
The trooper then proceeded to take Robert’s palm prints on the trunk of his car in front of everyone. We live by the school and there was much traffic that day. He also went over the radio with Robert’s name, our address and failure to register CSC. Great .Even though Robert is only 14, he seems to have forfeited his right to privacy.
The trooper said he was going to write and fax his report to Antrim County that day because he wanted to clear up the confusion about the matter.
I waited for several weeks for Antrim County to contact me. We only had until July 15 to get him registered. When I didn’t hear from them, I called the trooper. He said that he specifically attached a memo for them to contact me as soon as possible.
He called Antrim County and they told him that prosecutor Mark Fett was going to look into this and would call me. He did, and I tried to ask him questions as to how and why this happened and how we were supposed to comply if we aren’t told what to do. He also told me that Antrim County decided not to press charges.
I asked about appealing my son’s conviction and he informed me that I would have to hire my own attorney. Unfortunately I can’t afford one.
Because I questioned this matter, Mr. Fett got very angry with me and he screamed at me, “I’m telling you now-Register your kid!” He then slammed the phone down in my ear.
I wanted Robert to be charged because we then could have had an attorney look at his case.
From what I have been able to figure out, Robert is subject to the Adam Walsh Act of 2007.
Since he committed his offense in 2003 at age 10, I don’t understand how this can possibly pertain to him. My father is a convicted sex offender but he doesn’t have to register because his crime was committed before there was a sex offender registry.
I feel that the CPS was building a case against Robert for years since his past behavior was a deciding factor in the decision to prosecute rather than help the kid.
My main questions are as follows :
1. Havenwyck was the only facility that would even take Robert because he was so young (barely 11) . Was our case dragged out for four months so Robert would be old enough to be placed in Havenwyck? Why was he sent there, especially since it is experimental? Robert’s therapist made reference to Pavlov’s dogs in open court and stated that the program had been in existence for less than 10 years.
2. Since the California Court of Appeals ruled last year that plethysmographs are “Orwellian” in nature, why are they using them on children who are wards of the state?
3. Is it legal to use ammonia capsules on children?
4. Why was Robert questioned repeatedly by the CPS without a parent or lawyer present while an elementary school student, then charged with a crime at a later date? Why didn’t the CPS tell me what Robert was supposedly doing?
5. Why did the judge allow us to proceed without an attorney when there was going to be lifelong repercussions? It’s not fair that my child’s life is ruined because I made a bad decision.
Time is running out for us. We only have three years to file suit in Michigan and its already been more than 2 years. Are there any attorneys willing to take cases if the state is involved?
Robert never received the help he needed for being a victim of sexual abuse. Instead he was treated like some kind of monster and had his life ruined by people who should be helping kids.
I have no idea where to begin. Any suggestions will be greatly appreciated.
Thank You,
Wendy Beal
P.S. Havenwyck is also experimenting with psychotropic drugs. According to Robert, who was deemed by the psychiatrist to not need any medication, a different doctor was assigned to the wing. This doctor placed Robert on Ritalin - then fooled with the dosage - one week on, one week off, etc. Robert also claimed that he messed with all of the kid’s meds and had them all messed up. Robert also ended up with 18 cavities while in Havenwyck which I attribute to dry mouth from the Ritalin.
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