Thursday, August 4, 2011

Trial by Therapists

By Ryan A. MacDonald

Therapists should be held professionally and civilly liable when they promote junk science to help convict innocent men.

On September 23, 1994, Rev. Gordon MacRae, a New Hampshire Catholic priest, was convicted of raping a male counseling client more than a decade earlier. At the time of Fr. MacRae’s trial, accuser Thomas Grover was 28 years old. His core testimony was simple. Grover stated that, in 1983, he sought MacRae out for counseling for his drug addiction in the months preceding his 16th birthday. He claimed that during each session he was berated, made to cry, and then forced to submit to oral sex in a Church rectory office. His claim that these events occurred during counseling sessions enhanced the charges to five counts of aggravated felonious sexual assault. When asked by defense counsel why Grover, at almost age 16 – being 5’ 11 and weighing in excess of 180 pounds – would return from week to week after having been raped, Grover answered, “I don’t know – I repressed it.” When the defense pressed for an explanation, Grover said, “I had out of body experiences; I don’t remember how I got there.”

During this remarkable testimony, a woman in the spectator section of the court was taking copious notes. She wasn’t with reporters in the press section. When defense counsel approached her during a break, she identified herself as “a student interested in the trial.”

Following Thomas Grover’s testimony, the prosecution was permitted to call to the stand an expert witness, Leonard Fleischer, Ed.D., whose role was purportedly to “educate” the jury about Child Abuse Accommodation Syndromee, Post Traumatic Stress Disorder, and “delayed reporting.” His description of PTSD included a reference to “out of body experiences” even though, as a witness, he was not present during Thomas Grover’s testimony. During the trial, however, Dr. Fleischer was seen in a restaurant with the “student” who had been taking notes during Grover’s testimony.

Thomas Grover also testified that between ages 15 and 27, he was treated in six drug abuse treatment centers, the first being Beech Hill Hospital in New Hampshire. Dr. Fleischer then testified that he had once been a therapist at Beech Hill Hospital, and “in my experience 70% to 80% of the males who had been treated at Beech Hill Hospital were sexually abused.”

On appeal, the State conceded that this uncorroborated statistical testimony by Dr. Fleischer should not have been allowed. The state appellate court agreed, but determined that it was “harmless error beyond a reasonable doubt.” In post-trial interviews with jurors, several stated that their verdict was swayed solely by Dr. Fleischer’s testimony. One juror said she voted for guilty because she watched the defendant carefully during the trial, “and he did not look remorseful.” The jury never heard that this trial came after MacRae’s rejection of the State’s plea offer of a sentence of one to three years. He rejected this offer twice before trial and again following Thomas Grover’s testimony. After the trial, he was sentenced by Judge Arthur Brennan to a term of up to 67 years – more than 20 times the maximum of the State’s proffered deal.


Far more troubling was the role played in this trial and its aftermath by psychotherapist Pauline Goupil (now working under the name of Pauline Vachon), M.A. As defense counsel Ron Koch (pronounced “Coke”) stood at the defense table to cross-examine Thomas Grover, Mr. Grover turned in protest to the judge. This 28-year-old, 220 lb. man complained that he did not want to see the defendant during the trial and therefore could not answer Mr. Koch’s questions if he stood in the middle aisle by the defense table. In apparent disregard of the Constitutional right of defendants to confront an accuser at trial, Judge Brennan ordered defense counsel to cross-examine Thomas Grover from a position in the court as far from the defendant as possible.

Later, during a break in the trial, an observer approached the defense attorney. The issue, she said, had nothing to do with the lawyer standing near the defendant. The observer pointed out the presence of a woman seated with spectators on the center aisle. The observer reported seeing that woman influence Thomas Grover’s testimony using hand signals. The observer pointed out that defense counsel had been blocking Grover’s view of her when he was standing near Father MacRae during cross examination.

The observer claimed that when defense counsel asked Mr. Grover to explain to whom he first brought his sexual abuse claims, the police or a contingency lawyer, Thomas Grover looked directly at the woman seated at the center aisle at which point she gestured with her index finger over her eye and down her cheek. Grover, the observer said, then began to sob uncontrollably causing the judge to declare a recess. The observer pointed the woman out, and defense counsel approached her.

The woman identified herself as Pauline Goupil, M.A., Thomas Grover’s therapist. The defense approached the bench, the jury was dismissed for the day, and Pauline Goupil was ordered to the stand. Ms. Goupil testified that she had been retained by Thomas Grover’s contingency lawyer, Robert Upton, to counsel Grover throughout the trial and keep him “clean and sober.” Ms. Goupil stated that she had a practice specialization in treating victims of sexual abuse and assault.

For an entire afternoon, Pauline Goupil, M.A. testified about her role, and vehemently protested defense attempts to obtain her file. Pre-trial, the defense moved for copies of all of Thomas Grover’s treatment records, but few were available and the defense was never told of Grover’s on-going treatment with Pauline Goupil.

In the end, the judge ruled that he would conduct an in-camera review of Ms. Goupil’s treatment file which she was ordered to produce the next day. She was then barred from the court for the remainder of trial. The presence of Ms. Goupil, and the matter of her giving Grover hand signals during his testimony, was never heard by the jury and the defense counsel did not move for a mistrial.

Pauline Goupil’s file was submitted that day for in-camera review. In it was a letter from Ms. Goupil to Thomas Grover in which she chastised him for not showing up for her sessions, and assured him:
“I have good news. Jim [Keene, NH sex crimes detective James F. McLaughlin] told me that MacRae is being offered a plea deal he will have to accept. So  there will be no trial. We can just move on with the settlement phase.”

Neither the letter, nor Pauline Goupil’s coaching of Thomas Grover’s testimony ever became known to the jury.

Once Pauline Goupil’s role in the case was known, however, Thomas Grover was put back on the stand. He testified that Ms. Goupil arranged for him to be drugged before his testimony, and that was why he could not remember specifics. Thomas Grover claimed that part of the residual effect of the abuse he suffered was chronic unemployment due to his emotional state. He was asked by defense counsel how – since he could not hold a job – could he afford weekly therapy with Ms. Goupil. Grover stated, “She worked something out with my lawyer. She’ll be paid after the settlement.” Earlier in his testimony, Grover denied having any awareness of plans to sue the Catholic Church... (continued)

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