Sunday, July 12, 2009



As you may have just read (I read it on AOL), a pair of 30-somethings have just recanted the abuse allegations that got their father, a policeman, convicted of sexually abusing them as children and spending 20 years in prison.

Let me say this right off: I am not here adopting the ‘good’ vs. ‘evil’ melodrama script that seems so essential in media ‘reporting’ in the past 2 or 3 decades. I am not here implying that the father is the completely ‘good’ guy and that some other(s) is/are the ‘bad’ persons. Life is rarely that simple, and neither are human beings, especially in their intimate and familial relations.

In fact, it’s my position that it is precisely this good-evil melodramatic over-simplification that has helped fuel the whole sex-offender mania and all of its attendant and enabling ‘mania law’.

That being said – and I mean every word of it – there is more than enough here for our consideration.

The adults-former kids went before a Superior Court Justice in Vancouver, Washington on Friday last and recanted.

All they can recall at this point is that they were insistently interrogated by a then-detective, one Sharon Krause. The son said that at the age of 9 he finally gave in after “months of insistent questioning” and told her what she wanted to hear “just so she would leave him alone”.
A whole bunch of points flow from this.

First, the police have their ways of getting you to give them what they’ve already made up their mind they want to hear. That’s par for the course in interrogative procedures: keep at the ‘witness’, bother the witness, and don’t stop until you get what you need. I suppose when you’re going after an Al Capone or a probable spy, it makes some sense, is more or less within acceptable boundaries for constitutionally-permissible police procedure, and serves the a) general purpose of enforcing the law, b) seeing that law and community order are preserved, and c) ensuring that justice is done [although I am not assuming that all three of these goals are identical or even – in practice – mutually compatible].

Second, this whole procedural plan starts to shade into something else altogether when a community (including – ach! – a national community) is in the grip of ‘mania law’. Police agents with an axe to grind or a dogmatic commitment to their own assumptions about who’s ‘good’ and who’s baaaaad and what ‘message’ should be ‘sent’, are as legally empowered to do their worst as decent cops just trying to get to the bottom of something and find the truth.

Third, this whole procedural plan goes amok when you are dealing with children as your ‘witnesses’. The memory of a child – like the rest of his or her brain – is still in a very formative state. Yes, a person governed by victimist law (if something is causing pain then the Law has to find – or be made to find – a way to stop that pain, no matter what ‘quaint’ Constitutional and traditional ‘abstractions’ might be in the way) will consider that leaning heavily on the child to be just a ‘thang’ in the service of a ‘good’ cause, and since it’s an ‘emergency’ then anything goes. This, after all, was part of what fueled the day-care sex-abuse crises of the 1980s. Although almost all* of those cases have been overturned and the imprisoned released (if they haven’t died in stir in the meantime).

Fourth, you are dealing with genuinely ‘spectral’ evidence here, just like that accepted by the court in the Salem Witch Trials** (back in the benighted days of the 1690s): only the ‘victim-witness’ can see it, but the court took their word for it, and awarded such statements the legal status of providing probative and reliable evidence upon which to base a (life-destroying) conviction. But when you’re fighting the Devil, it’s all good, right?

About the alleged sexual molestation, the daughter, now 30, says that she “would have remembered something that graphic, that violent”. With which observation one can only agree. But the ‘recovered memory’ and ‘repressed memory’ theories were ‘fresh’ and ‘authoritative’ new ‘research’ back then, one of the early but crucial bits of sex-offense ‘science’ whose paid experts had begun to surf the wave of credulous media attention and free-flowing government funding.*** ‘Trust the children’ was the mantra; although not to turn in their homework unless they know they’ll be checked, not to drive a car, not to drink a beer, not to open a bank account, not to handle firearms … but to provide the crucial evidence that can end a normal life – well, OK. After all, it’s an ‘emergency’.

And the Law should try to be ‘creative’ and ‘responsive’ and so on and so forth, right? I think that we should all, as Citizens and not simply as potential accused, consider just what in the blessed frak they are teaching in the law schools these days: if ‘creativity’ is a code to cover disregard of long-established evidentiary principles and even Constitutional principles (Alberto Gonzales didn’t think up ‘quaint’ on his own), and if ‘responsive’ means that the Law and its agents should yell Bleaaahhhh and gallop hard to get in front of the stampede and lead it … well, that seems not the way to best proceed. Not, at least, if you want to keep a Constitutional Republic.

Not that these children came up with the whole thing on their own. The daughter remembers the detective “buying her ice cream”. Now, that’s not a service usually provided to the average witness. Although if an adult witness – uninterested in ice cream – were to be happy with some cash … are there laws about that?

Fifth, this demonstrates what happens to the integrity of law-enforcement agencies when they are lured or seduced – if I may – into joining the stampede. Because on top of the ice-cream, “the prosecutors withheld medical exams that showed no evidence of abuse, even though Krause claimed the abuse was repeated and violent”. Good blessed grief. Did nobody notice the deck tilting on the Titanic? Did any of the uniformed personnel on the bridge give any thought to what it meant to push the huge bulk of the police-power at high speed through the dark in a patch where icebergs are notoriously possible?

Sixth, this demonstrates what happens to the integrity and reputation of the entire criminal justice system. Courts are verrrry touchy that they be “perceived” to be serious, careful, and as a result more or less accurate in their life-altering judgments. If folks start to think of them as a real-life Monty Python, or as a real-life ‘show-trial’ operation like Hitler and Stalin and Mao used to run … well, the courts quite legitimately don’t want to have that ‘perception’ get around.

Whether, however, they have acted in such a way as to render such a perception baseless … well that’s another point altogether. This stampede has been led from the top – alas. In the Salem Witch Trials, the local court (specially convened to deal with the ‘witchcraft’) led the stampede; but the Governor in Boston, and the Crown in London, higher up the chain of authority, acted to put a brake and then a stop to the whole thing.

Such is not the case today among us, however. We are now in the throes of a mania-stampede that is being led by the highest sources of legislative authority and enabled by the highest judicial authority.

I hope that changes – and from my lips to God’s ear, if I may pray.

Seventh, Clyde Ray Spencer is still a ‘convicted sex offender’. Although he is hoping to get that changed. But even though the Governor pardoned him in 2004, the sex-offense laws aren’t based on such things. And let it be recalled that in all of the enabling sex-offense legislation, there is that ominous (perhaps truly reckless and even treacherous) clause towards the end that absolves police agents from any liability if they err on the side of – ummmm – public safety in dealing with a possible sex-offender. As Hermann Goering said before the cameras, a bullet from the gun of any police agent of the Reich is a bullet from my gun (And do you vant to argue mit ze Reichsmarschall? Take him to court? Gute luck mit that, Herr Citizen.) Ach.

Eighth, all of this mess is an utterly predictable consequence of having the government and its police power invade the most intimate – and legally complicated – aspects of citizens’ lives. Even former Chief Justice Rehnquist sensed clearly how utterly dangerous a position the nation’s courts would be in if they had to ultimately adjudicate on the basis of “he said she said” as he put it; or in matters of almost ‘spectral’ evidence (the ‘memories’ of children, some of them far closer to infancy than to the status of legal adult).

But ‘consequences’ were not considered carefully in ‘the emergency’ as it was then characterized. (And can you say ‘Iraq War’?)

Now we are faced with a system of retroactive and registration and notification laws that seem to grow as if they were out of all control. This matrix of bad law not only wrecks lives of every person it touches – whether plaintiff or defendant, ‘victim’ or ‘perp’ or ‘witness’ – but also lays the precedents for a truly profound Constitutional destruction: if the legislative and judicial branches, even at their highest levels, can declare ‘emergencies’ with such unjustified ease and thoroughness, then what happens when they find some new ‘outrage’ that will create the next mania stampede? And they have sustained this lethal course of action for almost 20 years now.

Who will be the target of ‘the next logical step’?

Who next will be preventively detained for the sake of ‘public safety’ (or ‘national security’)?
Who next will be told that while the Constitution is still the basis of the nation’s laws and jurisprudence, in this particular type of thing it doesn’t quite apply? But that even though the Constitution doesn’t apply, it’s still not un-Constitutional to do what is about to be done to you?
In the absence of civil insurrection or direct invasion, no Branch has the right to water down the Constitution.

And despite all the pain – even that intentionally inflicted by truly deranged among us, or by any one of us on a bad day – the first responsibility of the government in all its Branches is to preserve, protect, and defend the Constitution. The citizens are all grown-ups; we all know that life is not a laundered fairy-tale with no pain and no problems. We’ll deal with it without wrecking the one essential reality that actually distinguishes “America” from all the other approaches to government: No Constitution, no America – and no amount of flags or pious 4th of July patriotics will ever retain or recapture the genuine and marvelous essence of what ‘America” means.


*Not in Massachusetts, yet, though. The Fells Acres Day School convicts are still under the axe, and the State’s top law enforcement folks – past and present – are still fighting exoneration of those convicted who are still alive. Of course, like the Bush-era torture lawyers, they are wise to realize that having the public go back and actually look at what they did would – at this point – not be in their best professional or political interests. They are most likely accurate in their concerns.

**See my Post “Travelling Backwards” on this site.

**See my Post “Paul Shanley and All of Us” on this site.


  1. actually, there's still a probably-innocent man locked in prison in Florida, thanks to Janet Reno. His name is Frank Fuster and he's there because of some truly evil people involved in the Country Walk Daycare case.

  2. It may well be. And upon him be peace. There's much for us to do.

  3. In spite of all the injustices that have been layed on Mr. Spencer, Clark County Prosecutor Kim Farr has now appealed the judges findings of July 10 hearing asking that the appellate court ignore them. In that decision the Superior Court Judge found that the witnesses were credible and their testimony was consistant with their sworn deposition. Get over it Clark County. Show some semblance of professionalism and admit that a travesty has taken place and step up to help this man put his life back together.

  4. You raise a good point, and thank you for that. Let me run with it for bit here.

    The concept of ‘judicial closure’ or ‘finality’ is actually sensible in its original intent. It means that the government cannot later come back to a court case against a citizen and then say Hey, we’re changing the outcome. It was meant to protect the Citizen-Defendant from the type of arbitrary whims of the government in the exercise and deployment of the Law (it works in civil matters too, but the SO concern is primarily the criminal law).

    Such arbitrary toying with the outcomes of cases – after the fact – is one of the key manifestations of what the Framers would call ‘tyranny’. And they were agin’ it!

    It also serves the purpose of protecting the perceived and actual legitimacy of the Courts. If folks think that the government can go and change the outcome of court cases after they have been tried and decided, then they won’t trust the Courts.

    And the public trust in the government – that it will exercise its monopoly power of police authority and jurisprudence honestly and clearly – is essential if we are to avoid a huge regression to the old days of early-Western law when those who feel they have been wronged take matters into their own hands. If that were to happen, society itself as the Framers envisioned it would collapse.

    Now there is also a third purpose: on a practical level, it keeps the Courts from getting clogged up with rehashing old cases. This would be a disaster for the Court system. It would also be a disaster for folks who had been accused, were tried, and – say – found Not Guilty or were acquitted, or even found Guilty, received a certain sentence, and had a reasonable expectation that if they performed the sentence, then that was the end of it.

    But one aspect of the underside of this third point is that government agents – police or prosecutors or even a Court itself, having possibly committed more crimes to achieve a Conviction than perhaps the Defendant actually committed in the first place, would certainly not want the case brought back into the light. This purpose can easily hide beneath the much more ‘noble’ concerns about not wanting to clog the Courts or tamper with ‘closure’ and ‘finality’.

    And of course, in the new approach where the ‘victim’ is now considered an active agent in the outcome of the case, and the government – as they teach in some law courses now – is simply the ‘agent’ of the ‘victim’s’ desire to be avenged … well, in that case the government might also hide behind the ‘victim’ and claim that to go back now and re-open things would simply re-victimize the victim and would also deny the ‘victim’ the boon of ‘closure’.

    Of course, if a case comes back up precisely because the wrong person was convicted, then I can’t see what objection a ‘victim’ would have – who would want to live with the reality that they have played some part in having the wrong person found Guilty and sentenced?

    And of course, in mania-law, of which sex-offense law is surely a vivid example – the chances of a whole lotta bad-things being perpetrated by the police power in the quest for a Conviction are much much greater. And now you have therefore a whole bunch of government agents who do not want things looked at again.

    (More in a minute in next Comment)

  5. Second and last part of my thoughts on your Comment:

    Mr. Spencer’s case is, however, not completely relevant to ‘victim’ theory. In his case here, the very persons who were supposed to be the ‘victims’ now say that they did not tell the truth (or were mistaken, or what have you).

    But the government agents, I think, still have to prevent the case from being brought back up again, so they are forced to rely on the ‘technical’ elements: the case was already decided and the Court made its findings properly and so the matter should be closed.

    In this approach, Mr. Spencer’s actual innocence doesn’t matter: the procedures were followed in the courtroom and that should be that.

    But of course the real problem was that the Court was provided with false information. There is an established legal principle here – “error coram nobis” – wherein a Court may declare that it was lied to in the original case, or at least provided with grossly inaccurate information, and thus it may declare with no (or not too much) loss of authority and dignity that its original finding was flawed so greatly that the whole thing has to be looked at again.

    This is not something, clearly, that the police and prosecuting agents would like to have happen. It also isn’t something that would make the ‘victim advocacy’ comfortable, because it gets the public to thinking that ‘victims’ don’t always tell the truth, or at least are not always well-enough informed to be reliable witnesses.

    And while this point is surely a logical possibility and hardly earth-shaking, yet in the realm of public opinion (and the shaping and manipulation of public opinion, as in mania-law) then it would not be – tactically – in the advocates’ interest to have the public kicking any tires when it comes to the claims and stories of ‘victims’. Indeed, it is precisely the almost-automatic crediting of ‘victim stories’ that helps keep a mania-law dynamic going.

    And politically nowadays, few politicians want to risk looking like they are ‘against victims’ or ‘for criminals’, especially ‘sex offenders’. And few judges – especially those who have to stand for election and re-election.

    You see the problems.

    But this is precisely where the SO community has to take a stand, not only for SOs legitimately convicted, but also for persons illegitimately convicted. And yet also for America and Americans in general, because if this sort of thing becomes standard operating procedure among the police and prosecutorial and jurisprudential agents, and politicians and legislators figure they can keep voters ‘happy’ by continuing the sham, then the Constitutional Republic itself is in lethal danger.

    Again, I propose to the SO community that the danger lies not only in the injustices to accused or convicted SOs and the rest of the SO support community, but also to The People, whose Constitutional protections are now hugely corrupted and whose competence to deliberate upon the truth of things is greatly reduced (with the help of a sensationalist media). All of this is baaaaaad stuff indeed.

    I am n-o-t saying that all 'victims' are dishonest or mistaken, but 'victimism' - as it has become an approach to policing and law (and news-reporting) - has lethal consequences built-into it.

  6. On September 29, 2010, in the Superior Court of Clark County Washington the case against Mr. Spencer was completely overturned and all charges dropped. On Nov 5, 2010, 20/20 will air the case of Mr. Spencer's false conviction. Watch it and see how much overt corruption was involved in the case.

  7. I want to thank this Commenter very much for updating this matter. I will put up a special Post immediately since there is that TV show coming up in a couple of days.

  8. I, too was railroaded by those who wished to gain power in a corrupt system. I lost my career, and was never able to clear my name. It still haunts me to this day. I am still unable to come to grips with people who can do such things.