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The first time I saw a false accusation of a very serious crime occurred in 1984 and I had trouble believing it was false. The high school teacher client was divorced and living with his teen-age daughter when she and her girlfriend, who occasionally slept over, each accused him of sexually molesting them. Each act of molestation is worth up to eight years in prison, which means big numbers in no time. “They’re both lying,” he was telling me, and I’m thinking, “Sure they are.” I’d spent seven years prosecuting before entering private practice, including several years assigned to the rape unit of the San Francisco district attorney’s office. I hadn’t seen many innocent people who had two different accusers. Plus, Mr. Schoolteacher didn’t seem like a particularly “nice guy,” the way a lot of clients do after they’ve been accused of something serious. But as it turned out, both girls admitted making up their stories, and the case went away. The daughter invented her story in the mental ward that her father committed her to after she flipped out when he grounded her for ignoring her homework. A nurse asked why she’d been committed and the daughter replied she didn’t want to say. Was it something sexual, the nurse wanted to know. Yes, the girl allowed. With whom? She didn’t want to say. Was it your father? Yes. Did he molest you? Yes. Did he do this and that? Yes and yes. The girlfriend explained she made up the story about the father to get even with the daughter after a quarrel. Think you’re safe from being falsely accused by overzealous social workers, police, doctors and prosecutors? Or that you can sue to make things right after you’re exonerated? A federal civil rights action, perhaps? Think again. Last month, the 9th U.S. Circuit Court of Appeals said a man couldn’t sue for being thrown in jail on the manufactured ground that he sexually abused his children — who had been forced to live in the home of the investigator who was framing him. The case, Devereaux v. Perez, 00 C.D.O.S. 5716, arose in Wenatchee, Wash., when a social worker, a juvenile detective working his first such case, and a prosecutor brought 29,727 charges of child sexual molestation against 43 men and women. Few of the charges stood up in court and others were overturned on appeal. Washington has appointed a judge to find out what went wrong with its criminal justice system. The 9th Circuit ruled that government officials have a qualified immunity to investigate, no matter, it appears, how blindly or incompetently. That’s wrong, wrote Judge Andrew Kleinfeld, but his view isn’t the law, it’s the dissent. Kleinfeld wrote that Devereaux presented “solid evidence” that police and child advocates fabricated evidence and actively coerced witnesses to tell lies that would get him arrested and convicted of crimes he didn’t commit. He wrote: “Manufacturing false evidence and using the criminal law system to ruin the lives of innocent people is … a gravely serious wrong. The more terrible the crime and penalties for it, the more terrible is the wrong of ‘framing’ someone for it. The seriousness of a crime never justifies manufacturing evidence and convicting the innocent … “Any government official should know that a person has a constitutional right not to be ‘framed!’ … “Investigators knew or should have known they were eliciting false accusations. … “A number of towns in the 1980s and 1990s appear to have been engulfed by some sort of hysteria among government officials about sex and children … “The affair has been popularly regarded as a Northwestern Salem, though it seems to have been more an official than a popular mania.” We cannot be deprived of such fundamental and well-known constitutional rights as the right not to have government officials manufacture false evidence against us, Kleinfeld wrote, nor can immunity shield officials because they act with good underlying motives, such as to protect children from sexual exploitation. He quoted the dissent in 1928′s Olmstead v. United States, 277 U.S. 479: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Thank goodness you can’t be falsely accused in San Francisco. Or can you? That’s what happened in the recently dismissed Foxglove case, the six-year poison-murder prosecution that lacked a couple of things, like poison and murder. When family members claimed their brother and his disfavored girlfriend were poisoning elderly friends with heart medicine in order to inherit from them, police dug up four bodies from cemeteries. There was ample reason to disbelieve the family members’ claims of poisoning. As an early prosecutor advised, without the positive lab result, we wouldn’t have been here. My client, the girlfriend, said no one poisoned anyone. “We’ll see,” I thought. The medical examiner says he found digoxin in your friend’s blood, I pointed out. He must have made a mistake, or the police planted it, she said. “Uh-huh.” How would police know how to plant digoxin in a blood sample? What would be in it for them? The medical examiner could never make a mistake like that, I thought. In my client’s favor, the alleged victims either didn’t get sick or die of poison — or they had no wills or deeds in effect to provide a motive. San Francisco police had leaked their confidential file to private investigators who tried to protect the Hollywood movie rights. A lawyer drew up a contract to split the proceeds with the cops. Gold and glory had corrupted the investigation along with the excessive fear that a ring of people was committing death-penalty serial murder to inherit. San Francisco’s 25-year chief medical examiner, Dr. Boyd Stephens, had been told the story and given a blood sample to test. He informed police he found what they were looking for, digoxin. That’s a digitalis-like heart medicine derived from the Foxglove plant. Police leaked Stephens’ finding to a family member who got another relative to embellish the story, which the cops wanted even more to believe. By the time the embellisher admitted, on tape, that they’d made the poison story up to sink the brother and get rid of the girlfriend, police and prosecutors were too dug in to back off. “We never thought the case would go this far,” one of the cops said afterwards. After four years of living under suspicion and surveillance, eight people were indicted, arrested, and some, including my client, were held without bail for over two years before trial. However, a two-hour cross-examination of the first prosecution witness, Stephens, showed there was no Foxglove in the Foxglove case. District Attorney Terence Hallinan was then forced to dismiss all of the poison-murder charges. Stephens testified he obtained a reading of 0.09 nanograms (a nanogram is a billionth of a gram) of digoxin per milliliter of blood using an immunoassay, which he believed indicated foul play. Asked what the test manufacturer’s lower detection limit was, Stephens testified that it was 0.02. I showed him that the correct number was 0.20, 10 times higher. Had Stephens been correct about the 0.02, the 0.09 would have been well over the lower limit. But at 0.20, his result was below half of what was needed to have any significance. According to the test manufacturer, Abbott Labs, anything below 0.20 is indistinguishable from zero. The test can produce a false positive reading of up to 0.199 ng/ml for digoxin when testing pure distilled water. To avoid this, repeat testing is required, with the results charted and compared against the calculated, and routine, error factor, called the standard deviation. Stephens testified that he failed to calculate the standard deviation. He acknowledged that his result, less than a tenth of a billionth of a gram in a milliliter, could be random error, and said his lab notes disappeared when the lab closed. Stephens testified that molecules naturally produced by the body, or otherwise innocently present, could also account for his test result. Three other labs tested the same material for the prosecution. Not one was able to confirm Stephens’ finding and one warned against false positives in 1994. In other words, Stephens’ 6-year-old 0.09 test result, which he interpreted as showing poison where it didn’t belong, was mistaken, just as my client claimed in the beginning. Well, as the 9th Circuit points out, you don’t have a constitutional right not to be framed. But we could at least insist on higher standards of investigation. Robert Sheridan has been in private practice since 1974.

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