Only in Massachusetts ...
Judges' Shock Ruling Okays Fantasist's "Repressed Memories" Fraud
by JOANN WYPIJEWSKI, Counterpunch, 25 January 2010
"A disgusting sinkhole of racism and vulgar prejudice” was Alexander Cockburn’s apt characterization of Massachusetts on this site the other day— and we can now add this: the commonwealth is the last sanctuary for sex fantasists keen to lock someone up, perhaps for life, on no evidence at all.
On January 15 the Supreme Judicial Court of Massachusetts distinguished itself as the last court in America to accept, in the face of voluminous research and scientific opinion to the contrary, repressed memory (also called massive amnesia, dissociative amnesia, recovered memory) as valid evidence in a criminal prosecution.
It did so in its ruling in the case of Paul Shanley, the defrocked Catholic priest who in 2005 was convicted of raping and otherwise molesting a child on nothing more than the tearful “recovered memories” of the now-grown accuser. Shanley had become the eye of the panic storm over priestly abuse that swept through Boston and then the nation in 2002. The accuser, Paul Busa, was one of three young men who all had the same personal injury lawyer; all went to the same therapists; all talked together at length; all described nearly identical heinous assaults occurring in the same place and time when they were little boys in the same religious education class; all, miraculously, experienced total amnesia after each assault, so that they went innocently with the priest to be raped again and again every Sunday for years; and all, even more miraculously, recovered their memories of these agonies at the same time, after The Boston Globe decided to make Shanley its No. 1 “depraved priest”.
They also all were plaintiffs in a civil suit that the Archdiocese of Boston settled, before Shanley’s trial and against its lawyers’ advice, thereby collecting hundreds of thousands of dollars for their claimed suffering. Busa pocketed $500,000. His friend Gregory Ford, the first to recover his memories and, until he was discredited, the poster child of priests’ victims, got at least $1.4 million, the biggest individual payment made by the Catholic Church in Boston in the midst of the scandal. All three, along with another man, who was represented by the same personal injury lawyer, made essentially the same claims but had been in a different class as a kid, were complainants in the criminal indictment against Shanley brought by the then-Middlesex County DA, Martha Coakley.
That was in June of 2002. Then one by one the prosecution’s “victims” began to fall. Gregory Ford became a huge liability. A psychically troubled individual since adolescence, over the years he had also accused a neighbor, a cousin and his father of rape. Those denunciations his parents had always quashed, but after reading a Globe article they seized the opportunity that perhaps his troubles could be tied to Shanley, and pressed Gregory to remember until he succumbed and fell to the floor crying, telling them what they wanted to hear. Coakley and company ultimately decided that Ford, who once threatened to kill his whole family and burn down their house, might not make the most stable, sympathetic victim. The other friend was also dropped. He had claimed his memories returned while traveling to and from trips to Las Vegas, where he gambled away a lot of money and might have been perceived as an opportunist out for financial gain from the church. The fourth man had his own vexed back story and took himself out of the case, disappearing after a pretrial hearing.
That left Paul Busa, a former air force man who had hated his job and was looking for a way out of the military when the scandal broke. He found it, and at the time of trial was a fireman in Newton, married and with a story to tell the jury that was unencumbered by the more troubling biographies of his friends, not to mention the phenomenal coincidence of their amnesia and convenient remembering.
On January 31, 2002, Busa was told about the Globe’s story accusing Shanley of having sex with teenagers and young adults, and his first reaction was surprise; he’d always thought of the priest as “a nice guy”, he told his girlfriend, now wife. But later when she told him his friend Gregory Ford claimed to have been serially raped by the priest from the age of 6, Busa’s memories went to the alteration department.
He spoke to Ford, after which conversation he said his own memories hit him “like a tidal wave” and he cried for six hours. Then he spoke to Ford’s personal injury lawyer, Roderick (“Eric”) MacLeish. Then he went to the air force shrink, saying he needed to take a leave from the base to return to Boston to “pursue a class action lawsuit”. The shrink encouraged Busa to explore these new memories of abuse by keeping a journal. Write anything that comes into your mind, the shrink told Busa. Think of it as an “emotional barf bag”.
Thus began the accumulation of “evidence” that alone would put Shanley behind bars for twelve to fifteen years. At the top of each page Busa wrote, “Memo to Eric MacLeish, attorney confidential communication”.
“Journaling” is a common technique among therapists who believe in repressed memory. The theory is that through free-association and other quick-writing techniques, memories stored in the unconscious might break through the filters of thought, screening, logic and control that contribute to repression in the first place. In the annals of memory cases such techniques tend to produce fantasies, which can metastasize into false memories, as writing “whatever you want” slides effortlessly from game-like exercise into emotional release into documentary record. For Busa, the journal seems to have been both “barf bag” and serious business from the start, which accounts for such anomalies as his references to Shanley as “that faggot” or “that fucking faggot” in entries for days when he admittedly had no memories of sexual abuse but was making notes for himself and his lawyer that would later form the basis of his legal complaints.
It was February 11, 2002, when he was first told that Gregory Ford had recovered his memories, but Busa backdated his journal to February 1, the day after he discovered that the Globe considered Shanley a dirty pervert. Thus in one of the earliest entries, Busa writes, “Still no memories.” A few days later: “Remembered Shanley used to pull me out of class to talk all the time.” The next day: “Remembered Shanley leading me to the bathroom. Starting to get sketched out.” As he explained in a civil deposition, by the 9th of February he was “getting weirded out”, but this was retrospective, since it would not be until two days later that he “heard Greg was coming out [as a victim], tidal wave”. To that last entry he appended an exact time, 1300 Mountain Time. It was the wrong time, since his girlfriend didn’t telephone him until about 1500: a simple misremembering, the assistant DA said at trial; he was writing fast, and he was upset.
On the witness stand Busa gave a performance of pain and rage, remembering exactly how Father Shanley had defiled him. It’s possible that he told himself, his lawyer, his journal and various therapists those stories so many times that they had become true for him. But some things that he had earlier remembered for purposes of the prosecution’s indictment he forgot by the time he reached the stand. Since, as Judge Stephen Neel himself instructed members of the jury, nothing presented in court corroborated the accuser’s central claims, it was short work to drop the counts that had hinged on those previous memories and just go forward with the ones that remained.
There never was any other evidence on which to hang the case. No physical evidence: Busa, too, would have been 6 years old when the weekly rape and abuse began, but no one noticed anything wrong with him. None of the many people who were in the church every Sunday before mass, when these crimes were supposedly committed, including Gregory Ford’s mother, who taught one of the classes and said in a deposition that she never noticed a thing. No one saw Busa alone with the defendant. None of the teachers who were called to testify supported his claim that he was regularly plucked from class by Shanley, or that he was sent out to see the priest because of bad behavior. In fact, they contradicted Busa’s claims.
It hadn’t mattered to the jury members, who apparently bought the prosecutor’s argument that people remember what is important to them, and sending a bad kid to see the priest over and over again just wasn’t important to those teachers. The absence of corroborating evidence didn’t matter to the Supreme Judicial Court either. Not that Shanley’s appellate attorney, Robert Shaw Jr., had asked the high court to review to that level of detail. But it is reflective of the general shoddy nature of the high court’s ruling that it opens its description of the case with a falsehood. It states that "the victim was observed leaving the classroom with the defendant on several occasions.” Testimony offered at the trial afforded no substantive basis for this flat assertion.
So the ruling begins dishonestly and never deviates. The crux of Shaw’s argument was that the belief in repressed memory, by whatever name, is just that, an idea unsubstantiated by scientific research, an unproven hypothesis, and therefore inadmissible in court. He argued that Shanley had ineffective counsel because his trial lawyer, Frank Mondano, had not rigorously challenged the basis of the prosecution’s case, had presented the trial judge with no countervailing data or expert opinion on which to assess the testimony of the prosecution’s expert witnesses and make a reasoned judgment as to the admissibility of Busa’s “memories”.
Shaw was not asking the court to divine Busa's veracity or even to determine that the hypothesis of repressed memory is, finally, true or false. That, he asserted, is the function of scientific research. But, as amply demonstrated in voluminous material he presented to the court, the research now available shows that there is nothing beyond faith to support the hypothesis of massive repression
Almost fifty years of research on memory and trauma, involving 120 studies and more than 14,000 people with documented experiences of rape, sexual abuse, torture, death camps, war or other horrors, reveals no evidence of repressed memory—that is, an inability to remember that cannot be explained by ordinary forgetting, infantile amnesia, intoxication or brain injury. People may forget certain details of Nazi cruelty, but they don’t forget they were in Auschwitz, and don’t exist for years in a la-la land of neutral thoughts about the place until one day a tidal wave of memory hits them. They may not remember every child they killed, every village they destroyed or every gaping wound of a buddy bleeding out, but they don’t forget they were in a hell called Vietnam or Iraq or Afghanistan. They may not remember every unwanted touch or traumatic visitation by Uncle Harry, but there is not a shred of support for the idea that somehow repeated sexual trauma is different from torture, war, death camps such that it completely alters the process by which the mind creates and stores memory; that only sex can be so damaging as to reverse the process by which humans learn and have learned for millennia. The only circumstances under which childhood sexual abuse past the age of 4 has been demonstrably forgotten and re-remembered, according to Richard McNally, a research psychologist at Harvard who has conducted numerous experiments on the relationship between memory and trauma, is if the abuse was not first experienced as traumatic. That cannot apply to Busa, who claimed rape.
As dozens of pre-eminent social science researchers stated in an amicus brief, “Decades of research and scientific debate have clarified over and over again that the notion of traumatic events being somehow ‘repressed’ and later accurately recovered is one of the most pernicious bits of folklore ever to infect psychology and psychiatry.”
It was on that basis that Shaw challenged Shanley’s conviction, and since no Massachusetts court had ever fully considered the scientific, evidentiary basis for repressed memory, he and Shanley and his family had every reason to hope that when the Supreme Judicial Court agreed to hear the appeal last year, it did so with a serious intent to review the research and join numerous other courts in the land of rationality.
Contrary to what the court ultimately ruled, repressed memory is not “generally accepted in the relevant scientific community”. Nor is it generally accepted by courts, though it once was. From 1992-94, 354 lawsuits based on repressed memory were filed in US civil and criminal courts. From 2000-04, there were twenty. One of the reasons for the drop off was a 1993 Supreme Court decision, in Daubert v. Merrel Dow Pharmaceuticals, which held that scientific expert testimony must be both relevant and reliable to be admissible. A second decision, in 1999, extended the ruling to all expert testimony in federal courts. Since the mid-90s, many states have adopted similar standards, and judges have been dismissing cases or overturning convictions based on repressed memories, often after pretrial hearings featuring legal-scientific teams. R. Christopher Barden, a lawyer, psychiatrist and major proponent of the science-intensive approach, successfully led a team of five full-time defense lawyers and seven national experts in a monthlong landmark Daubert hearing in Rhode Island in 1999. He has litigated many such hearings in many jurisdictions across the country and has won them all, driving a stake through prosecutors’ use of this junk science to ruin people’s lives.
But faith and politics are powerful things, particularly in a place like Massachusetts, where the ground was laid by self-described feminists and therapists back in the 1970s for airy but wildly destructive notions that unremembered childhood sexual abuse, sometimes involving Satanic ritual, was epidemic, that numerous adult psychological problems or anxieties or even characteristics like lack of self-confidence could be attributed to it, that the magic bag of therapy could coax the memories into the light and thus bring “healing”, often in tandem with someone going to jail. Add that to the hysteria around the priest scandal and in particular around Shanley, whom the entire power structure and its servants had convicted before court action even commenced, and it required a stiff-spined panel of judges to bring sense to the situation.
The Supreme Judicial Court turned out to be spineless, a prisoner of media interest and public sentiment, however irrational. Middlesex County prosecutors had relied on two therapists prominent in the warped little world of Boston’s repressed memory promoters. Dr. Daniel Brown and Dr. James Chu. Brown had appeared as a certified expert in courtrooms for years, stating that the mind’s capacity for “massive repression” was generally accepted as demonstrable fact in the psychological professions. That was always false, and by 2004 many of the therapists whose work Brown recommended had been disgraced, stripped of their licenses and revealed as dangerous frauds in successful malpractice suits. Brown's own testimony had been rejected as unreliable by courts in New Hampshire and Rhode Island. In 2007 an Indiana court rejected his testimony as misleading, and a federal judge threw out a $1.75 million verdict in a case that hinged on Brown’s expertise.
Brown’s confederate, Chu, had connections to the International Society for the Study of Dissociation, an organization peppered with believers in Satanic conspiracies, over which he once presided and whose journal he was editing at the time of Shanley’s trial. Formerly known as the International Society for the Study of Multiple Personality and Dissociation, it was co-founded by Bennet Braun, one of Chu’s mentors. Braun ran the country’s first dissociative disorder clinical unit and promoted belief in Satanic ritual abuse, also in a cult involving, among others, the Klan, the US military, the Mafia and FTD Florists. His career ended with a $10.6 million settlement of a lawsuit brought by a patient who had come to believe in therapy that she was a Satanic priestess.
In his appeal to the high court Shaw did not fault Judge Neel for his pretrial ruling on the admissibility of repressed memory. In that hearing Shanley’s trial lawyer offered nothing that would have enlightened the judge, not a single witness or study to rebut the prosecution’s so-called expert witness. He merely huffed and puffed cross-examining Brown, and himself called up Chu—just to clarify a few matters. The high court decided that extended cross-examination, however ignorant, was enough to provide Neel with the full scope of the debate on the reliability and general scientific acceptance of repressed memory.
Truth be told, Neel had punted the memory question to the jury. The jury had punted it back, relying on the wisdom of judge, prosecution and its trial expert, Chu. The high court merely punted again, saying there’s no reason to believe that a fuller presentation of the research and opinion of the scientific community would have changed anyone’s mind. Perhaps that is an accurate reading of Massachusetts temperament. The long knives were drawn for Shanley by everyone, including the shameful remnant of the gay movement, immune to fact or reason.
But the high court’s job is not to hew to popular prejudice. Its members can’t simply say, “Look, no one wanted to free the faggot, and neither do we.” So it made a charade of ruling, mischaracterizing the appellate argument for its own ends.
It discussed the issue of repressed memory almost entirely with reference to the evidence at the pretrial hearing, as if the judge’s action there were the focus of the appeal. It stated that Shaw challenged repressed memory on grounds that there is no peer-reviewed literature and that scientific study is not possible. Those “arguments” appear nowhere in his submissions. In fact, the material before the court emphasized methodologically sound prospective studies that contradict the notion of repressed memory, and in an affidavit Dr. Harrison Pope, an internationally recognized psychiatrist, scholar and expert on research methodology, spelled out a valid method for testing agreed upon by the scientific community.
The court accepted at face value Daniel Brown’s claims for the eighty-five studies he brandished to support his opinions. It accepted patient self-diagnosis and therapists’ reports, upon which Chu had relied, as scientific evidence of how the brain works. It did not trouble itself to grapple with Pope’s affidavit, which analyzed in scrupulous detail the body of studies upon which Brown had relied: the flawed research (without controls or error rates, with faulty methodology, with subjects who report abuse in infancy and therefore would not remember because of normal infantile amnesia, with subjects who suffered brain injury along with trauma, etc.), or flawed conclusions from studies. It ignored the record of chicanery piled up by the authors of some of those studies, as spelled out in Chris Barden’s scathing affidavit, as well as the recent history of other court rulings rejecting Brown’s testimony.
In fact, the court offered no analysis whatsoever of the impressive documentary material that Shaw provided, none of which had been available to the trial court. “In sum”, it ruled, “the judge's [Neel’s] finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record” that had been placed before him.
Who are we to “second guess the judge or reach a different conclusion”, the justices postured in a footnote right near the end, and then, as if aware of their titanic bad faith, added in that same footnote:
The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction.
As Robert Shaw told me later,
"Whether one calls it a question of 'sufficiency of the evidence' or a question of validity and reliability, as we argued, where repressed memory is at issue we are dealing with the same question, directed at the very nature of the evidence.
"If the Court harbors a concern that repressed memory evidence might not in itself be 'sufficient as a matter of law' to sustain a conviction, then we believe that Paul Shanley deserves the benefit of a ruling addressing that concern.
"If the Court were to conclude that repressed memory evidence is not 'sufficient as a matter of law,' then Paul Shanley is entitled to understand how the evidence is nonetheless valid and reliable enough to be admitted in his case. Moreover, sexual abuse cases are regularly tried in the Commonwealth where the only evidence is the testimony of the accuser concerning the accuser’s memories of the alleged crimes.
"That is precisely why the relevant question was not framed as one of 'legal sufficiency' in the classic sense, but whether repressed memory evidence is valid, reliable and admissible. If it is valid, reliable and admissible, then the question of legal sufficiency is resolved.
"If it is not valid, reliable or admissible, or, as implied in footnote 26, is not sufficient in itself to support a conviction, then the judgments in this case cannot stand."
Back in 2002 virtually the entire media swallowed the story of Shanley’s monstrosity as presented by personal injury lawyer MacLeish. They then regurgitated it back to a gullible and easily lead public. Political ideology offered no buffer from this dangerous nonsense, as so-called leftists abandoned any interest in justice or reason, blinkered simply by disdain for religion and the Catholic Church. Homophobes and the homosexual establishment were as one against Shanley, repeating MacLeish’s lie that he was a founder of NAMBLA, that he had a long history of documented sexual abuse, that he had been moved from parish to parish because of this, that because he’d had sex with young men he must be a child rapist. The Boston Globe, a disgraceful paper that, like Martha Coakley, deserves every blow it has recently suffered and would best disappear from the scene, didn’t care that its reporters either never reviewed the entire documentary record about Shanley or willfully misrepresented it.
In late 2004, shortly before his trial the next year, Coakley’s office offered Shanley a deal: plead guilty to one minor charge and receive sentence of time served, plus two and a half years’ house arrest. Shanley declined. “I’m 74 years old”, he told me from prison after he was convicted; “why would I take a deal?” But “can you imagine”, he added, “here I am, the worst monster, a danger to children everywhere, and they offer me time served? Seven months [the time he’d spent in jail awaiting bail]. But for refusing to lie, I got twelve to fifteen years.”
Still, Shanley hoped that if only people had the information… Now the Supreme Judicial Court joins the rest of the Massachusetts rogues’ gallery, demonstrating again that, in a match-up against prejudice, the truth will not necessarily set you free.
JoAnn Wypijewski has been reporting on the Shanley case since 2002, writing about it for Legal Affairs as well as The Nation and CounterPunch. She can be reached at firstname.lastname@example.org.