The InQuiring Lawyer
By RONALD M. SANDGRUND, ESQ., INQ.
should be carefree, playing in the sun; not living a
nightmare in the darkness of the soul.
This is the sixth article series by The InQuiring Lawyer addressing a topic that Colorado lawyers may discuss privately but rarely talk about publicly. The topics in this column are being explored through dialogues involving lawyers, judges, law professors, law students, and law school deans, as well as entrepreneurs, journalists, business leaders, politicians, economists, sociologists, mental health professionals, academics, children, gadflies, and know-it-alls (myself included).
These discussions may tread on matters sometimes considered too highly regarded to be open to criticism, or even simple examination. I take full responsibility for these forays, and I recognize that I may be subject to assessment and criticism myself. (Please be gentle!) If you have an idea for one of these columns, I hope you will share it with me via email at rms. email@example.com.
This month's article is the second of a two-part conversation about the effect of the cases lawyers handle on the lawyers themselves. This question is examined within the crucible of the prosecution and defense of child exploitation and sex abuse cases—a difficult subject for most of us even to think about. The discussion's first part appeared in last month's issue.
My thanks to my good friends John Haried, Bob Pepin, and Stan Garnett, without whom I would not have been able to put this article together. Also, I am grateful to the many dialogue participants willing to go on the record with their forthright observations and comments regarding a difficult subject. The dedication and talent of both the prosecutors and defense lawyers involved in child sex exploitation cases is a mighty thing to behold.
Katharina Booth is first assistant district attorney for Boulder County. She has been a prosecutor for 19 years, spending her career specializing in crimes against women, especially sexual assault and domestic violence.
Caryn Datz was a chief trial deputy of the sexual assault unit at the Office of the District Attorney for the 20th Judicial District, where she supervised a unit of four attorneys who specialize in felony-level sexual assault prosecution. Since the date of her interview, Datz has been appointed a district court judge for the 17th Judicial District.
Laurie Kepros is the director of sexual litigation for the Colorado Office of the State Public Defender, where she trains and advises more than 500 lawyers across Colorado regarding their representation of adults and juveniles accused or convicted of sexual crimes, including sexual assault on children.
Kathleen McGuire, the former head of the Public Defender's Office for Douglas, Elbert, and Lincoln counties, is now in private practice. She has handled all types of criminal and juvenile delinquency cases. Before becoming a lawyer, she was a social worker for over 10 years, helping people with developmental disabilities and mental illness.
Judy Smith is an assistant U.S. attorney in Colorado and chief of the Cyber crime and National Security Section, where she supervises and prosecutes cyber, national security, and child exploitation cases.
Brenna Tindall, Psy. D., CAC III, is a licensed psychologist with extensive experience evaluating and treating adult and adolescent clients who are involved with the criminal justice system. She specializes in forensic evaluations of individuals in the criminal justice system.
Part 1 of this article asked why lawyers choose to handle cases involving the most horrific abuse of innocent children, and whether these lawyers can develop a protective shell around the long emotional shadows these matters cast. We inquired whether there are some cases lawyers simply cannot forget—cases that burn deeply into their memory and haunt their dreams. For those lawyers who cannot shut out the images and sounds of children's pain, we found that handling these cases can affect their personal lives, including their capacity for intimacy and their ability to parent without anxiety.
In this part 2, we explore whether there are ways to mitigate the cumulative emotional trauma many lawyers suffer from this work. Some feel that these lawyers have become society's sacrificial lambs: to get good at their jobs, they must endure this trauma in ever- increasing doses. We ask whether our legal system allows injustices that magnify the emotional burdens these lawyers must bear.
While working on this article, I ran across a news story called "I Had Nightmares," concerning the murder trial of a New York nanny who stabbed to death two young children in the family bathtub.2 The writer catalogued the emotional toll the trial took not on the lawyers, but on the jurors. These jurors worried that the psychic trauma they felt would linger long after their guilty verdict, and many were still haunted by the "anguished words of the parents and the grisly photos" showing the children, ages 2 and 6, gashed so severely they were nearly decapitated. The jurors spoke of repeated nightmares, of an inability to take baths after seeing the crime scene photos showing blood coating every bathroom surface, and of the children's mother's anguished testimony. Two jurors asked to be excused mid-trial. In a Facebook post following the guilty verdict, the children's father wrote: "These jurors went through hell. I hugged every one of them I could."
About 10% of jurors report extreme stress after sitting through a trial, according to the National Center for State Courts.3 Some judges have requested crisis-management sessions with jurors following trials with particularly disturbing facts. While we recognize and try to ameliorate the effects of profoundly disturbing trials on jurors, what systems are in place to deal with the cumulative effect of a lifetime of such cases on lawyers?
Trials seem like self-contained dramas to many of us, to be forgotten after the courtroom doors close. However, "Nothing fixes a thing so intensely in the memory as the wish to forget it."4
The Abused, the Accused, and the World Around Them
InQ: Before we further examine the effect of child sex offender work on lawyers, it makes sense to step back and take a look at the underlying cases so we can better understand how prosecutors and defense counsel experience them, and how they view the victims and the accused.
InQ: Caryn, how does an offender select a child to be groomed for sexual abuse?
Caryn Datz: In the typical sexual abuse case, the perpetrator identifies some vulnerability in a child. Successful offenders manipulate their roles and relationships as adults to children in a way that inhibits the chances the child will report the assault to others and causes them to hesitate to seek help from other adults. One aspect of these cases that interests me is the power dynamics that come into play and the subtle cultural messages that can be conveyed surrounding the abuser's relationship to the child.
InQ: Judy, what about the claim by some offenders that they were abused and exploited themselves as children, that this helps explain their pathology, and that with treatment they can return as contributing members of society? Is there a strong connection between being abused and becoming an abuser?
Judy Smith: Ron, it is pretty well-established that most victims are girls and most offenders are men. Many of these men claim to have been abused as children in an effort to explain their behavior. However, there are studies using polygraph tests to determine the validity of offender claims that they were the victims of child abuse, and those test results—or the threat to use the test—has resulted in a great many offenders withdrawing this claim. While many offenders claim to be abused as children, the connection is unclear and their self-reporting is inconclusive: the rate may be greatly overstated. Some have asked whether the offenders' behavior is a form of sexual attraction baked into their brain and sexual response. Currently, there is much scientific and medical debate around that question.
InQ: Yes, there is still much to be learned regarding this area of human behavior. Several defense lawyers I have spoken to relate an elevated rate of childhood sexual and physical abuse among adult offenders.
InQ: Caryn, are there aspects of these cases that are especially tricky to navigate?
Caryn: Yes, a paradox of sorts emerges when I have to deal with child sexual abuse...