The role of Attorney
Michael Von Zamft
Mr. Fuster initially hired attorneys Michael Von Zamft and
Jeffrey Samek to represent him in his probation revocation matter. Once criminal charges
were filed against Mr. Fuster and Iliana, the court declared them indigent and appointed
Von Zamft and Samek to represent the couple. Mr. Von Zamft, in turn, hired an
investigator, Stephen Dinerstein, to look into various matters connected with the defense.
On April 26, 1985, State Attorney Janet Reno wrote to Mssrs. Von
Zamft and Samek, stating the following:
It is my intention to make a plea offer to Iliana Fuster which
would include testimony against her husband and codefendant, Francisco Fuster. Please let
me know as soon as possible your opinion and thoughts on the matter.
Not surprisingly, in early May, Mr. Von Zamft decided the
defenses of Mr. and Mrs. Fuster should be officially severed. He, therefore, petitioned
the court and asked that he be appointed to represent Iliana separately and that Mr. Samek
be charged with Mr. Fuster’s representation. The court granted permission for them to
do so.
During the eleven months Iliana Fuster was incarcerated while
awaiting trial, this seventeen year old woman was held in solitary confinement. For nearly
all of this time, she proclaimed to anyone who would listen to her her innocence and that
of her husband, Mr. Fuster.
Nevertheless, then State Attorney Janet Reno wrote to the Fusters’
lawyers on April 26, 1985 (the Fusters were at the time being jointly represented by
Michael Von Zamft and Jeffrey Samek), inquiring as to which of them she should direct bids
to negotiate a plea agreement with Iliana. As a result of this communication, the defense
attorneys decided that they must split the defenses of their clients and proceed
independently.
Although Iliana knew that she would likely fare better if she
pled guilty then if she went to trial, she was insistent upon her innocence and Mr. Fuster’s.
The chaplain at the women’s detention center in which Iliana was housed, and with
whom Iliana had developed a close relationship, was deposed on August 1, 1985, just three
weeks before Iliana pled guilty. She was asked by one of the state prosecutors what the
chances were that, if Iliana were tried without Mr. Fuster being there, Iliana would
testify that Mr. Fuster abused the children. Ms. Blando responded, "I do not believe
that she would, and there is nothing that would indicate to me that she would do that. Not
because of fear of him or anything but because her feeling and belief is that she did not
see him do those things. . . .She will only testify to what she sees as being true -- to
the truth, and what she believes is the truth." Deposition of Shirley Blando, August
1, 1985, at 121.
As noted in the Statement of Facts, Iliana’s attorney had
decided by mid-summer 1985 that he was not willing to try this case. Nor did he appear
interested in the truth. According to a memo written by prosecutor Dan Casey, Iliana’s
attorney told prosecutors that even if he had to perjure himself, he would proffer to the
state that Iliana had admitted committing crimes so that she could plead guilty. See
Statements of Facts, supra, Memo from [then state prosecutor] Dan Casey, dated August 5,
1985.
At some point in August, Iliana’s attorney arranged to
provide Iliana with psychological counseling. Mr. Fuster has never seen the documents
filed by attorney Michael Von Zamft to obtain state funding for this counseling and,
although he is presently seeking them, cannot represent to this Court what reasons were
given for the state to underwrite this counseling. (The moving papers are likely to be
instructive, as may be the state’s response, if any.) Shortly thereafter,
psychologists Michael Rappaport and Merry Sue Haber began providing "therapy" to
Iliana.
In late August, 1985, after the start of jury selection, Mr.
Fuster received the shocking news that Iliana had pled guilty to the charges against her.
With trial already underway, defense counsel had no choice but to depose Iliana on three
evenings in mid-September, while trial was in progress. (In addition to counsel for both
sides, State Attorney Janet Reno attended these depositions, sitting next to Iliana and
offering her emotional support. So, too, did psychologist Michael Rappaport.) On the final
day of trial, Iliana took the stand and testified in rebuttal against Mr. Fuster. This led
to one of two conclusions: either she had been lying from the start to protect herself and
Mr. Fuster, or she was now lying in order to obtain a favorable recommendation for
sentencing. In either event, and despite the inherent credibility issues that either of
these conclusions entailed, her testimony -- that of an adult witness to horrifying scenes
of sexual abuse she claimed to have seen Mr. Fuster commit on the child victims -- was
riveting. There can be little doubt as to the powerful effect her testimony must have had
on the jury.
However, in 1991, investigative reporter Debbie Nathan published
an account of the Country Walk case which included the results of her interviews with Dr.
Rappaport and attorney Von Zamft. Exhibit A at 6. Von Zamft told Nathan that, following
Iliana’s evaluation by Dr. Mutter (see supra), he (Von Zamft) contacted Dr.
Rappaport, who ran a business called Behavior Changers and arranged for him and his
partner (Merry Haber) to begin meeting with Iliana at the prison. Rappaport met with
Iliana at least 34 times in August. (Rappaport also claimed that State Attorney Reno
visited Iliana in prison at least 30 times.) Id. Nathan reports that Rappaport told her,
"It’s a lot like reverse brainwashing . . .we just spent hours and house talking
to her . . . It’s kind of a manipulation. It was very much like dealing with a child.
You make them feel very happy, then segue into the hard things." Id. He further
described doing "relaxation" and "visualization" exercises with
Iliana, and said the process he used was "almost like a hypnotic thing . . ."
Id.
On the basis of this information, Mr. Fuster’s
postconviction counsel traveled to Honduras in early 1994 and took a deposition of Iliana
Fuster, under oath, audiotaped, and transcribed by a court reporter. Iliana’s
deposition testimony is entirely in accord with the description of events given by Dr.
Rappaport.
Specifically, Iliana testified at deposition that these two
psychologists visited her at the jail on almost a daily basis. While there, they would
talk to Iliana about the dire circumstances she was in. When she insisted that nothing
untoward had ever happened with the children under her care, they told her repeatedly that
she was mistaken, that, indeed, the acts she and Mr. Fuster had committed had been so
horrific that Iliana had simply "blacked out" the memories of them. See Exhibit
G, attached hereto and incorporated herein at 199. The Behavior Changers told Iliana that
it was their job to help her recover these repressed memories. Each day, these Behavior
Changers led Iliana through exercises during which they recounted to her detailed accounts
of the abuse the children had by this time reported to prosecutors. Before long, Iliana
began having dreams that mirrored the reports of abuse the Behavior Changers had insisted
she visualize, both while with them and before she went to bed each night. Iliana told the
"doctors" that she still had no conscious memories of the incidents she was
dreaming about. They assured her these were her memories, trying to break through in the
form of dreams. Exhibit G, at 199.
Experts with whom postconviction counsel for Mr. Fuster consulted
prior to his postconviction proceedings identified the procedures used by the Behavior
Changers as being a form of hypnosis. These experts have also noted that there is no valid
scientific evidence that there is such a thing as fully repressed memories. Researchers at
Harvard University, after doing a comprehensive search of the scientific literature, have
been unable to find a single documented and corroborated case of a fully repressed memory.
See Exhibit H, appendix VI (Pope, H.G., and Hudson, J.I. (1995). "Can memories of
childhood sexual abuse be repressed?" Psychological Medicine, 25, 121-126.
On the basis of this information, Mr. Fuster sought in his Rule
3.850 hearing to demonstrate to the Court that Iliana’s trial testimony consisted of
false and unreliable memories, obtained through the use of hypnosis, and that this
testimony, therefore, should have been deemed inadmissible as violating the Confrontation
and Due Process Clauses of the United States Constitution. See, e.g., Rock v. Arkansas,
483 U.S. 44 (1987).
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