STATE OF MAINE DISTRICT COURT CUMBERLAND, ss. NINTH DISTRICT Civil Action DIVISION OF SOUTHERN CUMBERLAND Docket No. POR-PA-09-1142 Lori Handrahan 0/b/o Mila Malenko versus Igor Malenko VOLUME IT BEFORE: The Honorable Jeffrey Moscowitz, Judge of the District Court, at the Ninth District Court, Portland, Maine, on Tuesday, October 6, 2009. APPEARANCES: William 8. Harwood, Esq. For the Plaintiff Michael J. Waxman, Esq. For the Defendant OFFICIAL TRANSCRIPT Prepared by the Electronic nei COPYWITNESSES Joyce Wientzen Beth Fawcett Igor Malenko EXHIBITS Plt's #2 (assessment) Def's #1 (email) Def's #2 (deposition) INDEX OF WITNESSES DIRECT CROSS REDIRECT 3 20 70 15 -- - 90 103 - INDEX OF EXHIBITS MARKED OFFERED ADMITTED 16 19 20 94 -- -- 108 -- -- RECROSS 7110 u 12 13 14 15 16 W7 18 19 20 2 22 24 25 VOLUME IT - CONTINUED FROM VOLUME I COURT OFFICER: If you could stand here, please, and face the Court and raise your right hand? COURT: Good morning. You're Joyce Wientzen? WITNESS: That's correct. COURT: Would you please spell your last name? WITNESS: W-i-e-n-t-z-e-n. COURT: Thank you. Miss Wientzen, do you swear or affirm that the testimony you will present in court this morning will be the truth, the whole truth and nothing but the truth? have WITNESS: I do. COURT: Thank you very much, Ms. Wientzen. Please a seat. WITNESS: Thank you. COURT: Go ahead, Mr. Harwood. JOYCE WIENTZEN, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS, DIRECT EXAMINATION BY MR. HARWOOD Good morning, Miss Wientzen. Good morning. Could you please provide for the Court your professional affiliation? Yes. I am currently the co-director of the Spurwink Child Abuse Program. Okay. And how long have you served in that10 uu 12 13 14 15 16 17 18 19 20 2 2 23 24 25 position? I have been working at the child abuse program primarily as a forensic interviewer for approximately fourteen years, and have been the co-director for about the last three years. Okay. Now, I want to ask you a few questions about your professional training and qualifications. Can you summarize your education, your formal education, for this Court? Yes. I graduated in 1991 with a BA in psychology, graduated in 1994 with a Masters in social work from Smith College. I worked for two years in a residential program with children, and, then, as I said, for the past fourteen years, I've been working providing forensic interviews in cases where there's allegations of child abuse. So, as part of my training, I have received on-site training. I have gone to numerous national and international trainings on forensic interviewing of children, including a week-long intensive forensic interviewing clinic that is put on by the American Professional Society on the Abuse of Children. I also supervise other forensic interviewers and providing trainings on forensic interviewing.10 WL 12 13 14 15 16 17 18 19 20 a 22. 25 Is--do I understand your professional focus is on forensic interviewing of children in sexual abuse cases? In sexual abuse cases, as well as other abuse-- other forms of abuse. But, limited to children, is that right? Correct. Okay. Approximately how many sex abuse cases have you been involved in for--have you worked on? Well, I have interviewed over two thousand children, and I'd say probably seventy percent of those cases are sexual abuse, so, if somebody's quick with numbers And can you summarize the training that you provide to others to do this kind of forensic interviewing? --well, as I stated, I provide supervision to the other forensic interviewers that are in our clinic. and I also provide training to other professionals, such as child protective workers, law enforcement, on the basic principles of forensic interviewing. Now, earlier this morning, Mr. Waxman indicated that he had gone to one of your seminars or conferences where you spoke. Is that part of your10 1 2 13 14 15 16 17 18 19 20 a 2 24 25 work? Do you present at conferences? Correct. And do you present information on the forensic interviewing technique in the--of minors in sexual abuse cases? Yes. TI have done that. And approximately how many times have you been the presenter at conferences? Gosh, I don't know. Maybe twenty, twenty-five. Let's move into this specific case. Can you tell me when your work started on this case? In July of 2009, and my first meeting with Mila was July 28". And how was the case referred to your office? The original referral came from Beth Fawcett from the Department of Health and Human Services. And at that time, she initially had a medical examination with Dr. Ricci. And it's my understanding, after some conversations that Dr. Ricci had with the Department and the counsels for both parents, it was decided to do a forensic interview. And what was the basis for determining that--to proceed with the forensic interviewing? Partially because the folks have all felt that10 u 12 13 14 15 16 17 18 19 20 2 22 23 24 25 Mila was fairly advanced cognitively, and that she would have the cognitive abilities to participate in a forensic interview. And I don't know the other details of the conversations that Dr. Ricci had with the parties, but-- Q Now, were you a member of a team at Spurwink that was involved in the overall evaluation in this case? A --yes. We always conduct these evaluations in a team. @ And can you describe who was on--or who was on that team? A ‘The other team members in our clinic are Dr. Ricci, Hannah Pressler, our nurse practitioner, Dr. Kerry Drach, our psychologist, Ellen Hurd, another LCSW who provides forensic interviews, and Kathy Harvey Brown is another Masters level clinician that provides forensic interviews. Q Now, I've got six or seven. I lost track. A Six. Q Six members of the team? And at the end of the process, was there a unanimous consensus among the six members of the team? MR. WAXMAN: Objection. Calls for hearsay. I'm not able to cross-examine those other witnesses who10 1 12 13 14 15 16 17 18 19 20 2 2 23 25 apparently have an opinion about this case. COURT: Well, we've already received evidence from Dr. Ricci that the team had a--it collaborated after the evidence was gathered by the--after the information was gathered by the team, and a consensus was reached that this was a moderate evidence of abuse. And, so, we have already received that information. This sounds like the same question. Is that where you're going? MR. HARWOOD: I'll withdraw the question if that's easier. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q Now, I wanted to more specifically get into your particular work on this case. Can you describe the--what you did, as part of the Spurwink team, to reach a conclusion in this case? A Yes. I met individually with Lori Handrahan. I met individually with Igor Malenko on two separate occasions. I met individually with Mila on two occasions. I reviewed extensive documentation, which is listed in my report. I also spoke with Beth Fawcett from the Department of Health and Human Services. I spoke with Mary Lilly from Mila's day care. I spoke with Polly Campbell. I spoke with Lesley Devoe. And as I said, I reviewed. extensive documentation, including, but10 iw 12 13 14 15 16 7 18 19 20 a 22 24 25 not limited to previous guardian ad litem reports that were prepared by Elizabeth Stout, an evaluation that was conducted by Carolyn Kabakoff of both parents and other documents. Was that list of people you've indicated that you spoke with a complete list, as far as you can recall? In terms of the people I spoke directly to, I believe that is the complete list. Okay. And how was that list developed as to who you would speak to? Well, primarily, I'm interested in speaking to folks who have heard a child make statements suggestive of abuse. So, any person that may have heard, or who have previously interviewed a child would be the most important for me to speak to. Okay. Now, let me go to the specific interview of Mila Malenko. Am I correct in--that that was a forensic interview you conducted? Correct. And can you explain what you mean by the phrase forensic interview? Sure. Forensic interviews are--the intent is to obtain factual information in the most non-leading or non-coercive manner possible, as opposed to a10 u 12 13 14 15 16 17 18 19 20 a 22 23 24 25 clinical evaluation, which is much more focused on obtaining information about a child's thoughts or feelings. Q And is the technique that you employed for this forensic interview something that you have involved--have been trained in? A Correct. Yes. Q Okay. And is the techniques that you employed for the forensic interview--do you have an opinion as to whether it's reliable? MR. WAXMAN: Objection--well, you know what? I'11 stipulate that the procedures they employed are the best practices. That still doesn't get us the question of whether it produces a reliable result. COURT: Okay. Is that--are you--is that where you'ze going, Mr. Harwood? Are you asking the witness whether the--her understanding of the science and the best information in the field provides that the techniques that the Spurwink Clinic uses are the--is the best practices? Is that what you're asking the witness? MR. HARWOOD: Yes. Yes, your Honor. couRT: That's a perfectly reasonable question to ask. And if you can answer that question, Miss Wientzen? 1010 i 12 13, 14 15 16 a7 18 19 20 2 2 24 25 WITNES: : So, if the question is do I, at Spurwink, use the best practices available for a forensic interviewing, yes. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q And can you summarize the details of how you conducted the forensic interview of Mila Malenko in this case? A The details of the format of the interview? Q x ‘The-- A Yes. As I stated, I met alone with her. I spent some time trying to build rapport with her. Because of her young age, she was not able to participate in some of the things that I would do with older children, such as getting them to demonstrate an understanding of rules I have. So, for example, I'll tell children that it's--you know, not to guess at their answers, to tell me if they don't know the answer. Also with older children, I would assess their understanding of the difference between a truth and a lie. Those things, I would--did not do with Mila, just because she's so young.” It was my sense that she wasn't able to participate in that. So, then, I-- as I said, T built some rapport with her, and I started asking open-ended questions about people a10 cbt 12 13 14 15 16 17 18 19 20 2 22 23 in her family. I met with her on two occasions, because in my first meeting with her, she is so young, and her attention span was quite short. So, that's why I had her come back for a second meeting, and continued with open-ended questions. How long was the first meeting, approximately? It wasn't more than half an hour. Okay. And the approximate length of the second meeting? It was about the same. All right. And the time between the first and second meeting? It was a little less than a week. I'm sorry. I didn't hear you. I'm sorry. It was a little less than a week. Okay. Now, in terms of the timing of the forensic interview, did you have any concern about the time that may have elapsed between the possible sexual abuse and the time you did the forensic interview? Do you mean concern about the amount of time that lapsed from her first statements, or from her last contact with her father? I'm not sure I understand the question. Well, let's take them both one at a time. From the first statements to the interview? 1210 ry 12 13 14 15 16 17 18 19 20 2 2 23 24 25 Well, certainly, with young children, their memory traces are much shorter than older children, so, it's preferable to interview children this young the sooner after they make statements. So, it's always preferable to interview children as quickly as possible when they've made statements. And how much time are we talking about in this case? Well, my understanding is she started to make statements in the beginning of June of 2009--or-- excuse me. It would have been the end of June. And you interviewed--what was the date of your first interview? July 28", so it had been about four weeks-- And is-- --since she started making statements. --and, given your experience in this field, is that an unreasonably long period of time to apply the forensic interviewing technique? MR. WAXMAN: Objection. Vague. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Is that more time elapsed than you would think reasonable for applying the forensic interviewing technique? MR. WAXMAN: Again, objection. Vague. I don't 1310 1 12 13 14 15 16 17 18 19 20 mn 2 23 understand that question. COURT: Well, that's sustained. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q Were you concerned about the length of time that elapsed? MR. WAXMAN: Objection. Leading. COURT: Overruled. WITNESS: I was conscious of the time, but I wouldn't say I was overly concerned. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q And what information did you elicit in the forensic interview that you thought was helpful 4n--to you and the team in reaching your conclusion about sexual abuse? A Well, when I asked Mila an open quest--open-ended question about her father, she said that her Papa poked her in her 'gina with his penis. Q I--I'm sorry. I didn't hear the end. A She said that her Papa poked her ‘gina with his penis. Q Okay. And was that in the first or second interview? A ‘That was in our second meeting. Q Okay. And were there any other statements or disclosures that you thought were significant? 1410 iW 12 13 4 15 16 17 18 19 20 2 22 23 24 25 A She said that it happened in her Papa's room. But, given her young age, she was not able to provide a lot of further contextual detail. MR. WAXMAN: I am just going to renew my objection to what I believe is hearsay, and move to strike at this point. COURT: Okay. That's overruled. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q Were there any other statements or disclosures made during--elicited during that forensic interview that were significant? A -No. dust primarily that she said that Papa poked her ‘gina with his penis. Q Okay. And were there any other statements that you became aware of in your other interviews and research that were consistent with that statement? A Yes. My understanding, she had made those statements to her mother. MR. WAXMAN: Objection. Hearsay. COURT: What was the question, again? DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q Were there any other statements that were made that you learned of in your other interviews that were consistent with the statement you elicited in your forensic interview? 1510 1 12 13 14 15 16 17 18 19 20 a 2 24 25 MR. WAXMAN: Same objection. Hearsay. I COURT: It's sustained, based upon the quest--the way the question is asked, it's sustained. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Did your other information, other than your forensic interview, reveal any other information that you--that was consistent with what--the information you elicited in your forensic interview? MR. WAXMAN: I'm going to have-- COURT: Sustained. (PAUSE) DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Okay. Miss Wientzen, I show you what's been marked as Plaintiff's Exhibit 2, and ask if you could identify it for the record, please? That is the psychosocial evidentiary assessment that I completed on Mila Malenko. And was this something that you drafted as part of your work in this case? Xe And can you describe the process of preparing this document? Well, as I stated earlier, the contacts which I had are summarized in here. After completing-- 1610 u 2 13 14 15 16 17 18 19 20 24 2 23 24 25 speaking with all the people I mentioned, reviewing all the documents I mentioned, I met with our team. My final opinion was informed by that team discussion. And, then, I prepared the written report. And is this a report that you routinely prepare in cases such as this? Yes. And what's the purpose of the report? The purpose of the report is to summarize our findings, and then to share that summary with the parties that are involved in the case. And is this report routinely prepared and kept as part of the official files of the Spurwink Child Abuse Program? Yes. Was your forensic investigation in this case conducted in accordance with the standards of your profession for conducting such examinations and interviews? Yes. I follow forensic interviewing guidelines which are provided by APSAC, which is the American Professional Society on the Abuse of Children, and those are the accepted standard practices. And based on the overall evaluation of the 1710 11 12 13 14 15 16 17 18 19 20 2 2 23 24 25 Spurwink team, did you reach an opinion on whether Mila Malenko had been sexually abused by her father, Igor Malenko? COURT: Sustained. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q At the completion of the investigation, Miss Wientzen, did you form an opinion on whether Mila Malenko had been sexually abused by her father? MR. WAXMAN: Objection. COURT: Sustained. MR. HARWOOD: Your Honor, I need a little guidance here. I thought we had the same question with Dr. Ricci. COURT: We're talking about Black. That's exactly what we're talking about right now. I mean, the witness can testify about the fact that forensic interviewing was done with Mila, that the team had a conference and decided, upon one of their four criteria, one of their four scale--the scales that they use, they decided to--where to fit this case, based upon the information that they gathered. That does-- that's about as far as you're allowed to go. You can't have a witness be a human lie detector, and that's exactly what you're asking the witness to do. MR. HARWOOD: Okay. 1810 un 2 13 14 15 16 17 18 19 20 a 22 23 24 25 DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q Did the team end up with an opinion on a scale of whether or not it was--the evidence was moderate or strong or weak, about whether there was sexual abuse? MR. WAXMAN: Objection. Cumulative. Asked and answered. COURT: Well, we'll let the witness--it has been asked and answered with Dr. Ricci, and I'm well aware of it. We'll let the witness answer the question. WITNESS: Well, it sounds as though Dr. Ricci explained our diagnostic system, where we either feel a child--there's strong evidence of abuse, moderate evidence of abuse, no evidence, or that we clearly don't know. This case fell in the moderate evidence category. DIRECT EXAMINATION CONTINUED BY MR. HARWOOD Q And, based on that, do you have an opinion on whether Igor Malenko should have future contact with his daughter? MR. WAXMAN: I'll let it go. A Our recommendation was that if Mila were to have contact with her father, that it should be supervised. MR. HARWOOD: I'll offer Plaintiff's Exhibit 2 at 1910 1 2 13 14 15 16 17 18 19 20 2 2 23 25 this time. MR. WAXMAN: Your Honor, I have the same objections to that as I had to the Exhibit 1. This is replete with hearsay. It's a double hearsay document, again, because the document itself, although it may pass muster under the business records exception, contains many statements that are not similarly admissible under any exclusion to the hearsay rule. So, I object to the parts of the report that discuss hearsay, which is almost the entirety of the report. COURT: Mr. Harwood? MR. HARWOOD: Your Honor, I think this is the same document as we've--in the same category and the same arguments as we had with Dr. Ricci. This report was prepared in the ordinary course. It is a business xecord at the Spurwink program, and it is, therefore, considered reliable enough to be outside of the hearsay rule. courT: All right. Well, I'11--r'll--it's admitted. MR. HARWOOD: No further questions. COURT: Okay. Any cross-exam? MR. WAXMAN: Yes, your Honor. (CROSS-EXAMINATION BY MR. WAXMAN Q Good morning, Miss Wientzen. 2010 uu 12 13 14 15 16 a7 18 19 20 a 2 23 25 Good morning. I'm Michael Waxman, I think you now know. I know. I've got a few questions for you, as well. There is no--have been no studies--scientific studies you're aware of that link your categorizations in those four categories--link those categories to the conclusion that someone has abused a child. There's no study you performed, and had reviewed by peers and published somewhere that says if we conclude that a child is in the moderate evidence category, that necessarily leads to our conclusion, which is reliable, that the child has, in fact, been sexually abused, correct? The scientific research that we use and the standard of practice for the forensic interviewing, so, the data that we use to reach our diagnosis is based on those practices which are based on scientific research. And there are other--there--I don't know if I would say it's research, but there certainly are other models similar to ours that interpret data that's collected from that manner, and then analyzed in that way. We had this issue arise in a different setting- 2110 iu 12 13 14 15 16 17 18 19 20 2 22 23 24 25 Mobmm. --at the divorce trial. What I'm asking about is predictive validity. That is, are there any studies that show that if you link--or if you put a child in a moderate evidence category, that there is a percentage of predictive validity that that is true? Any studies that you've done that have been reviewed by peers and published? There aren't any studies anywhere about predictive validity. It's based on what has been established in the literature as indicators of sexual abuse. Right. And you don't sit here and tell us that every time you reach the conclusion that it's in a moderate evidence category, that, absolutely, abuse has occurred, correct? You can't say that, can you? I can never say absolutely. Okay. And was part of the evidence you considered in reaching your conclusion to put it in a moderate evidence category that the witness could not repeat the rules for answering questions appropriately during the interview, could not demonstrate resistance to suggestion, or to participate in the interviewer's attempts to assess her understanding of the difference between 2210 1 12 13 14 15 16 17 18 19 20 2 22 24 25 a truth and a lie? If you're asking if I considered that-- Yes. -+yes, I certainly considered that. It doesn't necessarily mean a child cannot make reliable statements, but it does mean that the statements should be interpreted somewhat more conservatively than you may interpret an older child's statements. So, it might give you some pause in reaching your conclusions that the witness couldn't recite the rules, couldn't indicate she knew the difference between a lie and truth, correct? As I stated, it would just mean that we would interpret it somewhat more conservatively. Okay. And you, in fact, on the last page of your the context in which these xeport, indicate, " statements have been made must be taken into consideration. There is always the potential for influence when the child is in the midst of a high level parental conflict." Let me just stop there. You understood that this child was in the middle of a high level of parental conflict in this case, right? Yes. That was very apparent. 2310 aT 2 13 14 15 16 17 18 19 20 a 22 23 25 You understood--and you said, rather, "The risk is greater the younger the child, and the greater You wrote their susceptibility to suggestion that, correct? Yes, I did. And you wrote, "Mila has been questioned by a number of adults," correct? Correct. and, really, am I correct in saying that the crux of your decisions and opinions in this case are based on the specificity of Mila's statements, which you found to be compelling, right? The specificity and consistency of her statements. Well, she only made the statements to you on August 4", correct? Correct. But that's not the only information that I reviewed to inform my final opinion. Okay. So, you reviewed and considered other evidence that disclosures had been made, correct? Correct. All right. Am ZI cérrect that if you know that you're interviewing forensically a child who has been interviewed several other times, it's important to understand in great detail how each interview took place, right? 2410 uw 2 13 14 15, 16 a7 18 19 20 a 2 23 24 25 Correct. Okay. So, for instance, when you were trying to understand how Beth Fawcett conducted her interviews as part of the DHHS investigation, she recorded those interviews, right? Correct. Tape-recorded them, correct? Correct. That's their practice. Did you review those? I did not listen to those. Did you record your interview? We don't audiotape our interviews. Isn't that part of the best practice in the field? It depends on which standards you're looking at, and what area you live in. Well-- There's not a consensus on that. --there's not a consensus? Well, are you familiar with Wakefield and Underwager? Yes. Okay. And you're aware that they indicate that all interviews of the child should be videotaped, or at least audiotaped, right? I understand that that is the guideline that some people follow. 2510 u 12 13 14 15 16 a7 18 19 20 2 22 23 24 25 Okay. You don't know, as you sit here today, precisely how Ms. Handrahan or Miss Campbell interviewed the child, right? I don't know exactly what Miss Handrahan asked, only what she told me she asked. And, Miss Campbell, I both spoke on the telephone and also reviewed her--what she stated was her transcript of what she asked Mila that she had emailed to Beth Fawcett. So, that is what I had in terms of information about what questions she asked of Mila. My understanding was Mila did not make any statements to Beth Fawcett, so, I do not know all the questions that Beth Fawcett asked Mila. okay. But, it is important, don't you agree, to learn precisely how the previous interviewers interviewed this child, correct? Yes. That is important. And it's also important to understand when the interviewers have an interviewer bias, right? Well, correct. Can we agree that Miss Handrahan and Miss Campbell have interviewer bias? Well, if by interviewer bias, if you mean that they suspected or believed that Mila was abused, I mean, Miss Campbell did share with me that she had 2610 u 12 13 14 15 16 17 18 19 20 a 2 23 24 25 been concerned about sexual abuse a few months before Mila had made statements. In fact, you learned that Miss Campbell has been an advocate for Miss Handrahan since December of 2008, correct? That's what Miss Campbell stated. Yes. Okay. And you also learned, when you read the referral from DHHS--did you read that referral, by the way? Which referral? The initial referral that Polly Campbell made on July 11 at seven forty-one. You mean the referral she made to the Department of Health-- Yes. --and Human Services? Yes. I would have reviewed that as part of-- Okay. ~-the narrative. Did you read in there that she stated to DHHS that she believes Mr. Malenko has child pornography on his computer, although she has no evidence for that, it's just her sixth sense? I honestly don't recall reading that exact statement, but it's possible it was there. 2710 iL 12 13, 14 15 16 17 18 19 20 a 2 23 24 25 Well, that's an indicia of bias, is it not? Yes. That could be an index of bias. Are you aware that child pornography on a computer can be considered a federal felony? Yes. So, we agree, don't we, that from the time in June when Miss Handrahan claims the first disclosure was made, until August 4, 2009, the only people to whom Mila made disclosures were Miss Handrahan, who we agree has bias, and Miss Campbell, correct? And Julie Clark. Do you mean Julie Gray? I'm sorry. Julie Gray at the Freeport Medical Center. Aren't I correct that when she arrived in Julie Gray's office on July 10 at about twelve-thirty, she brought the child in completely naked, is that right? That's what the records indicated. Correct. Okay. and, then, she said to the child, in front of Julie Gray, words to the effect of, "Tell Julie Gray what you told kitty last night," and Mila responded, "I told kitty last night Papa poked my 'gina." That's correct. 2810 ul 12 13 14 15 16 17 18 19 20 2 2 23 24 25 Right? Mahmn, Do you consider that a disclosure to Miss Gray? Yes. Okay. So, from late June until August 4, the only disclosures that were made were disclosures that were made directly to Polly Campbell, an inter biased interviewer, to Miss Handrahan, who is a biased interviewer, and to Miss Handrahan and Ms. Gray at Miss Handrahan's suggestion, right? That's correct. Those are the previous statements. Okay. Did you take into account that the only unbiased interviewer, Beth Fawcett, didn't get a disclosure? We certainly considered at length that she had been spoken to several times before my interview. And it's always unfortunate and concerning when non-forensic interviewers question children, because there [sic] does lead to the potential of them asking inappropriate or leading questions. But, based on the information that Polly Campbell produced in terms of the questions she asked, they were open-ended questions. Did it strike you as odd that Polly Campbell 2910 i 12 13 14 15 16 17 18 19 20 2 2 23 24 25 didn't even know Mila until about July 10", 20097 Well, she stated that she tried to get to know Mila, in an attempt to help Mila with this situation. By the way, would you consider Miss Campbell to be a high status kind of person? I don't know how to answer that. I don't-- Well, I've read the literature: --I wasn't familiar with her before this. --oh, you weren't familiar with her? No. But, your report indicates--or, rather, Dr. Ricci's report indicates that she's with the Attorney General's Office, correct? Correct. Do you understand that she made this report, having nothing to do with her job as an Attorney General? Made the report to the Department of Health and Human Services? Yes. Yes. It's my understanding--well, actually, I'm sorry. I don't know how to answer that. I don't know how she--what her role at the Attorney General's Office is, and how that fits or doesn't 3010 u 12 13 14 15 16 7 18 19 20 2 2 23 24 25 fit with the role she provided in this case. Are you familiar with the studies that show children are more suggestible when being interviewed by high status interviewers? If a child perceives an interviewer to have a lot of authority, or to be intimidating, then they could be more susceptible to suggestion. I don't know if Mila was aware of Polly Campbell's status. By the way, in your interview, you said you didn't videotape it or audiotape it, correct? Correct. I--we heard Dr. Ricci tell us that you took down verbatim--something verbatim. Can you explain how it is this interview arrived on this page? When I sit with a child, I take verbatim notes of what I ask, and what their responses are. That then gets transcribed into what you see in the report. So, every single word spoken in that room, you transcribed? Other than possibly a few utterances like an "Um" or a "Aha," yes. With children as young as Mila, I capture everything they say. Do you take shorthand? I have my own made-up shorthand. Yes. 3110 u 12 13 14 15 16 7 18 19 20 a 22 23 24 25 Well, you indicate what she says in quotations, right? Mihm. Is that yes? Yes. Sorry. But, your questions are not in quotations, right? But they represent the questions that I asked her. Well, I want to ask you about that. On page seven, if you have the report-- (PAUSE) --you ask, on page seven, towards the top, "When asked if she has a Dad, she said, 'Yeah.' When asked what her Dad's name is, she stated, ‘Papa. When asked, 'Who does your Dad live with?', she said, 'Me.'" Let me stop there. By the way, that's incorrect, right? She doesn't live with her father, and hasn't for a year and a half, at least, right? Right. But that's not an unusual response for a child who has two parents. Okay. Then you write, "When asked to tell about Papa, she said, 'Papa poked me in 'gina," right? Correct. We don't know what you asked to tell about Papa based on this particular interview on paper, do 3210 1 12 13 14 15 16 17 18 19 20 2 2 23 24 25 we? No. I asked, "Tell me about Papa." That would have been the question that I asked. That would have been the question? That's the quest-- Ie that your testimony as you sit here today? --that's the question that I asked. “Tell me about Papa." It would be different, would it not, if the question were something like, "Tell me what Papa did to your 'gina." That would be different? That would be a leading question, and I do not ask leading questions like that. Okay. And we're just gonna have to take your word for it, because you didn't record the interview, right? I recorded it with notes, and what you see in my xeport represents the questions that I asked her. Do you have your notes with you today? No, I don't. We can agree, though, that it certainly makes a difference how the question is asked, in terms of what the response is, right? Correct. It could make a difference. Okay. So, you felt that she prob--that she 3310 u 12 13 14 15 16 17 18 19 20 Pr 2 23 24 25 disclosed, “Papa poked me in the--in ‘gina," in response to what you claim was an open-ended question, right? Correct. All right. Then, you asked him [sic], "What was Papa wearing?" And she said he wears an elephant on his body. He wasn't wearing an elephant on his body, was he? No. But I also know that she was holding an elephant puzzle piece, and it was my impression she was incorporating what she was playing with into her response at that moment. Then, you asked, "What did it--"--and this time, you put in quotations--why did you put your question in quotations this time? Honestly, T have a transcription service. Sometimes they put quotations, sometimes they don't. Okay. So, let me see if I understand this correctly. You take notes which you claim are verbatim notes. You then turn that document over to a third party, who transcribes it perhaps not completely as you wrote it, is that right? No. They don't transcribe from my notes. I do it verbally. I do a verbal transcription, which gets 3410 ul 12 13 14 15 16 17 19 20 a 2 23 24 25 transcribed by a service. Okay. 80, based on the notes you took, you take a dictation machine and you read your notes into a tape, and that gets transcribed by a third party, right? Correct. And that's what we have here today? And then it's reviewed by me for accuracy. Okay. So, you asked, "What did it feel like when Papa poked your ‘gina?", and she said, "It felt like a cupcake." What does a cupcake feel like? Is that a medically--is that a term of art in the medical profession? I'm not sure I understand your question. That means nothing, right? That means nothing, doesn't it? Well, it could mean nothing, or it could be that this child's frame of reference--she was trying to describe something. So, that's why I asked her what a cupcake felt like. Could it be that she just is making stuff up, or has been coached to make stuff up? Could that be an explanation as to why her response was it felt like a cupcake? It could be that because of her young cognitive 3510 1 12 13 14 15 16 a7 18 19 20 2 2 23 24 25 level, that she didn't know how to answer the question, so, she was incorporating frames of reference. It could be that she was responding with an answer that had nothing to do with my question. Could it be that she was coached, and she didn't-- wasn't coached for this particular question, and just offered up something? Could it be? I suppose it's possible, but usually with children who are coached--and by coached, I'm not sure what you mean, because some people, by coached, mean are told purposefully to lie, versus kids who were coached by being asked lots of leading questions, and, therefore, their responses are the artifact of those questions. So, when you say coach, I'm not sure what you mean by coaching. Either one. It doesn't matter to me. Is it possible that this child was suggestible, and hadn't been talked to or interviewed with regard to this particular question, therefore, didn't know how to answer it? It's possible, just like the other things are possible, as well. And it's also possible that in the videotape that she made of her child making some disclosures, 3610 1 12 13 14 15 16 17 18 19 2 2 23 25 that since she was doing it in a sing-song way and seemed happy, that perhaps she wasn't describing an actual memory, true? It's possible, but it's also quite possible, because of her young age, that she didn't understand what she was describing was something that was not appropriate. That would not be unusual for kids that young. can we agree that because of her young age, it's very difficult to draw conclusions of any kind regarding the reliability of her disclosures? I agree with you that diagnosing sexual abuse in young children, particularly under the age of three, is very difficult. I asked you, when I spoke with you on the phone, whether there were questions you could have asked _ to try to tease out whether the child had been interviewed improperly or coached, true? I asked you that question? Yes, you did. And you said yes, there were some questions you could ask, right? , Correct. And when we spoke, I think you said to me, essentially, "I don't recall exactly what question 3710 u 12 13 14 15 16 17 18 19 20 a 2 23 24 25 I asked, but I usually ask those kinds of questions," right? Correct. And if you look at your report, you asked one question. You asked, "When asked if her Mommy talks about Papa, she said no," right? Correct. That's the only question you asked in the entire sixty minutes of two interviews about whether her Mommy have interviewed her or coached her or told her to say things? Yes. And I also asked her if her Papa talks about her Mommy, to see how much she was aware of the conflict that was going on between her parents, and if she could have been influenced by that. Okay. And, by the way, on page seven, again, you indicate, "Due to her young developmental age, she was not able to repeat the rules for answering questions appropriately during the interview, or to identify an untruthful statement that was made to her," right? Correct. By the way, is it important in this analysis for you to make a determination about whether previous disclosures that are related to you are credible? 3810 u 2 13 14 15 16 a7 18 19 20 a 2 23 24 25 Could you ask the question again? Sure. If you look at page three, for instance, under referral information, there are a number of disclosures that Miss Handrahan claims were made to her prior to July 11, 2009. So, looking at that, is it important for you to make a determination, if you can, about whether these events are credible, truthful? Well, as I stated earlier, I try to get a sense of what questions were exactly asked of the child. What's represented in my report is what her mother xeported to me. Well, let me ask you this question. Let me ask it this way. You indicate, in this referral section of the report, on page three, that on June 24%, 2009, Mila apparently claimed that Mr. Malenko puts his face in her ‘gina, right? Correct. okay. And, then, your report indicates that, on July 3, Mila claimed that Papa puts ice cream all over his body, and has her lick it off. That was duly 3, right? Correct. Okay. And, yet, we know that the first report to DHS or any investigative body that we're aware of 3910 i 12 13 14 15 16 17 18 19 20 2 2 23 24 25 was not until July 11%, 2009. So, my question to you is do you make any--do you take any action to try to determine whether or not it sounds likely that these disclosures took place in the context of this case? I'm not sure if I understand your question. You're asking me about the delaying of the reporting, and how-- Miss Handrahan never called DHHS to make a report, despite what she claims are at least two very concerning disclosures took place in the weeks before the actual DHS referral, correct? Mmbmm. Correct. Okay. Did it strike you as odd that someone like Miss Handrahan would fail to make a report of what sounds like horrendous sexual abuse? I don't know if I found it strange. I've certainly seen that happen in many other situations, and it can be for a variety of reasons, It can be- What was the reason in this case? --I don't know the reason in this particular case. You didn't ask her why she didn't report this to anybody? I honestly don't recall what her response was to 4010 1 12 13 14 15 16 17 18 19 20 a 2 23 24 25 that. Well, wait a minute. The report doesn't contain anything about you actually asking those kinds of questions. Did you, in fact, ask her why, if these horrendous accusations--or, rather, disclosures were made, why she didn't call the police or DHS or somebody else? I honestly don't recall if I specifically asked her that. I know, from speaking to other collaterals, that there was a sense that she was worried she wouldn't be believed, and that she wanted another professional to hear what her daughter was saying. And you--is that why you didn't really get into this issue with her very much, because other people gave you that impression? No. That's--I honestly don't recall why I didn't ask her that. There was a lot of information to cover. I may have overlooked that question. Are you aware that Miss Handrahan is well connected with a lot of powerful figures in this state? MR. HARWOOD: Objection. COURT: Sustained. CROSS-EXAMINATION CONTINUED BY MR. WAXMAN 4110 i 12 13 14 15 16 17 18 19 20 2 22 23 24 25 Are you aware that Miss Handrahan was one of the people that drafted what is referred to as LD1143, which is a piece of legislation seeking to introduce a rebuttable presumption in domestic violence cases about custody of children? MR. HARWOOD: Objection. COURT: Sustained. CROSS-EXAMINATION CONTINUED BY MR. WAXMAN Are you aware--you are aware, are you not, that Ms. Campbell, who is the director of SAFE, has been involved in this case since December of 2008, right? Yes. I'm aware of that. You're aware that Lesley Devoe has been involved in this case since well before December of 2008, right? I thought she was involved at around the same time as Polly Campbell, but, yes, I'm aware she's been involved for a while. And you spoke, by the way, with Lesley Devoe and Polly Campbell, right? Correct. Neither one of them told you that these disclosures--that--rather, that Miss Handrahan told them, on or about June 24 and July 3, about 42