Attorneys Say Accused Hurt by Bias Over Molestation

For Sherman Oaks attorney Donald Feinberg, business is booming. “A week doesn’t go by without me getting up to a dozen calls about possible cases,” he said.

The cases Feinberg is talking about don’t involve disgruntled spouses looking for divorce lawyers or heirs in search of a probate attorney.

They involve potential clients accused of child molesting.

In 1983, 747 child molestation cases were reported to the Los Angeles County Health Department. In 1984, 1,908 cases were reported. By the end of 1985, if rates remain constant, more than 3,000 child molestation cases will be reported.

The increased figures underscore the demand for attorneys who specialize in what has become a new and burgeoning field of law: representing defendants charged with child molestation.

“It used to be a very small part of my practice, maybe one or two cases a year,” said Feinberg, who currently is representing 15 clients charged with child molestation. “But over the last two years, these cases have exploded.”

Michael Adelson, a county public defender for 18 years before going into private practice in January, said up to 20% of his clients are accused of child molesting.

Earlier this month, Adelson was a lecturer at a Sacramento seminar for attorneys. The subject of his lecture: effective cross-examination of children.

How do these attorneys feel about representing clients charged with child molestation? “You know, if it turns my stomach to handle a case, then I don’t handle it,” Feinberg said. “But that just hasn’t happened yet.

Opinions Set Aside

“I try to keep my personal opinion out of the cases I try. I separate myself from the work. The thing that bothers me is not the kinds of cases, but whether I can win for my client. I enjoy the action,” said Feinberg, the father of two grown children.

Adelson says he never would turn down a case--no matter how heinous the crime his client is charged with. “A criminal lawyer who would turn down a client based on the facts--no matter what those facts are--should question whether he is effective counsel on the cases he does take on. I don’t become judge and jury.”

Adelson, along with other attorneys interviewed, said that although the increased number of child molestation cases may be good for business, it also has created a public sentiment that makes fair legal representation of such defendants difficult.

‘Guilty Until Innocent’

“What we have is mob mentality. The system has been turned upside down. People charged with sex crimes involving children are considered guilty until proven innocent,” said Adelson, the father of two young children.

Feinberg goes further. “It’s like the communist scare of the the ‘50s. We’re dealing with a condition close to hysteria. People are afraid to be near children for fear of the consequences. Everyone is under suspicion.

“If you are a public schoolteacher today, especially if you are a male, you really are taking your life in your hands,” he said.

Feinberg said that because of publicity stemming in part from coverage of the McMartin Pre-School trial in Los Angeles, the public mood, once in the closet, is now open and direct.

‘ “Get these child molesters. Don’t ask questions, just round ‘em up and throw them in prison’; that’s what the public is saying now,” he said.

In next month’s issue of California Lawyer, the official publication of the State Bar, a lengthy article examines the pitfalls of childrens’ testimony in molestation cases. Barry Powell, a Los Angeles-area defense attorney, said, “With the avalanche of publicity about children who are kidnaped, battered or molested . . . juries feel it is their civic duty to convict.”

Van Nuys Public Defender Ralph A. Courtney III, 38, recently represented a Sepulveda accountant found guilty of seven counts of forcible lewd conduct on a 9-year-old girl. The man, 34-year-old James McDermott, the father of two boys, was sentenced to 20 years in prison, a longer sentence than if he had been convicted of second-degree murder.

“My client never denied that he had committed a crime,” Courtney said. “He said he did it and was ashamed of it. He is now in prison, and he is getting absolutely no help. Is that good?”

Girl ‘Imagined’ Acts

During the six-week trial, Commissioner Alan B. Haber allowed the victim to write out answers to embarrassing questions, something that infuriated Courtney.

“Testifying in the courtroom is not a comfortable experience,” he said. “That’s the way it’s supposed to be. With such new procedures like videotaped testimony, you’re not going to get at the truth.”

Throughout the McDermott trial, Courtney contended that the 9-year-old victim had “imagined” many of the acts she accused the defendant of performing.

“It’s a simple fact: Children lie and exaggerate. They make things up,” he said.

“Children want to please,” said Courtney, the father of two children. “That, coupled with a natural bias on behalf of adults to feel protective of children, and you have the seeds of sending an innocent man off to prison based on a child’s imagination.”

‘Permissible’ Lies

Adelson said even parents can’t know when their children are lying. In fact, he said, parents may even inadvertently encourage their children to fabricate.

“Kids learn that there are certain lies that are permissible, that are sanctioned by their parents,” he said. “A typical example is to understate their age at a movie theater, if asked. This teaches the child that there are certain lies that are OK with adults--those that accomplish ends in favor of the adult.”

And once they do lie in a courtroom, attorneys say, most children do not possess the maturity to understand the gravity of their testimony. Such trials also prove to be the most difficult cases to try, attorneys say.

“The cards are stacked against the adult right away,” Feinberg said. “Your heart warms up to the kids right away. You think they are sweet, innocent and telling the truth. But kids lie just like anyone else. They are impressionable. The court experience can be a big game for a child.”

Revenge Called Motive

One motive that many children have for testifying against an adult is revenge, said attorneys who specialize in child molestation cases.

Feinberg said some children may claim that a stepparent committed a sexual indiscretion, based not on fact, but on resentment stemming from jealously.

As an example, he cited the case of the divorced mother who remarries. Often because affection becomes directed toward a new spouse, a motive arises for a fictitious accusation from the child, he said.

Adelson recalled a case he handled in which a Los Angeles man was accused of molesting his 13-year-old stepdaughter. “The charge was made up,” he said. “She wanted him out of the home. She wanted her mother back to herself.”

Based on a preliminary investigation, the stepfather was arrested by police at his home. Because he could not afford the $25,000 bail, the 38-year-old mechanic was forced to spend four months in jail before and during his trial.

Rigorous Ordeal

During cross-examination, the stepdaughter recanted her testimony. The man was acquitted by a jury. But the ordeal of jail and trial was rigorous. The man and his wife divorced following the case; customers who had heard the man was accused of child molestation stopped going to his garage and his business fell off sharply, Adelson said.

In the case of convicted child molesters, many defense attorneys charge that the relatively lengthy prison terms handed down by judges have their underpinnings based on political considerations.

“It’s good politics to go after these types of offenders and to give them maximum sentences,” Feinberg said. “If a judge appears to be evenhanded, he takes his political life in his hands, when all he is doing is making fair decisions.

“How can any judge in his right mind be light with child molesters? It would be crazy,” he said.

Society Has ‘Overreacted’

“Rape was the last ‘notorious crime,’ ” Courtney said. “Drunk driving is another. There are waves of publicity that interrupt the evenhanded imposition of justice. Suddenly, child molestation has become the latest ‘horrible crime,’ the worst possible crime. But society has overreacted to it.”

“The penalties are horrendous,” said Feinberg, a former probation officer and public defender. “In my mind, it’s still more critical in this world to take a person’s life than to touch someone. I think our priorities are getting mixed up.” And because of such stiff prison terms--as in the 20-year-sentence handed down to McDermott--defense attorneys said more and more defendants charged with child molestation are forced to plea bargain, which means they are pleading guilty to a lesser charge even though they may be innocent of some or all of the charges against them.

“If you are charged with these offenses, you may have to plea bargain to minimize your liability even though you haven’t done anything,” Feinberg said. “If you decide you want to face trial, you have to be damn sure you’re going to win--and that’s a tremendous risk.”

At the core of the problem, said many defense attorneys, is the county’s prosecutorial organization established to convict those accused of molestation.

Teams of district attorneys now are funded to devote their time and skills solely to child molestation cases.

‘Don’t Care’ About Innocence

“We have this enormous, expensive machine geared to prosecute accused child molesters,” Feinberg said. “Innocent people sometimes get caught up in it and get convicted.”

Said Courtney, who has worked in the county public defender’s office for 12 years:

“Prosecutors don’t care if the defendant is not guilty. All they care about is if they can convince a jury of guilt. They often don’t want to find out the truth. They just want the conviction. That’s the bureaucracy. They aren’t congratulated when they decide to drop the charges; they get congratulated when they send someone off to prison. That’s because their job depends on it. Without convictions, their unit will go away. They will lose county or state appropriations.”