The Witch-Hunt Narrative by Ross E. Cheit

Author:Ross E. Cheit
Language: eng
Format: epub
Publisher: Oxford University Press
Published: 2014-09-09T04:00:00+00:00

Such findings of fact are normally accorded substantial deference on appeal because trial judges are closer to the evidence and are better positioned to evaluate the credibility of witnesses. But there was a highly unusual development in this case, one that has escaped notice in the witch-hunt narrative: all of the court records of that important pre-trial hearing disappeared or were mislaid. They were never located during the appeals process. When it became clear on appeal that the official record of this crucial fact-finding hearing was missing, the state moved “for a limited remand before that court to have the record reconstructed.”225 Remarkably, the Appellate Division denied the request. This freed the appellate court to make its own factual findings, unconstrained by what the judge who actually heard the tapes had concluded. Were it not for these highly unusual developments—both the loss of the transcript and the refusal of the Appellate Division to remand the issue to the fact-finding tribunal for the creation of a full record on appeal—this case could not have been overturned on the appellate court’s own decision that the interviews were overly suggestive.

The appeal was argued in February 1993; the court issued its decision in March. The court made sweeping factual claims about the interviews after stating that a child-specific analysis “would serve no useful purpose.” Sara Sencer-McArdle prepared a long memorandum documenting factual errors in the opinion of the Appellate Division.226 But history, in this instance, was written by the court. Their factual mistakes are now enshrined in this landmark opinion.227

Fearing that this precedent would make it unduly difficult to prosecute child sexual abuse cases, the state appealed to the New Jersey Supreme Court. The court initially declined to hear the case, apparently reasoning that the issues were moot since the state was unlikely to retry Michaels. The court indicated the state could refile its petition for Supreme Court review only if the prosecution declared its intention to retry Michaels. Demonstrating how strong they considered the evidence in the case, the prosecutor’s office indicted that it would retry Michaels if they won the appeal. The New Jersey Supreme Court agreed to hear the case, and the battleground then shifted to the academic field of psychology.

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