UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FRANCISCO FUSTER-ESCALONA

Petitioner,

Case No. 97-1369-CIV-LENARD

-vs-  MAGISTRATE JUDGE SORRENTINO

HARRY K. SINGLETARY,

Respondent.

_________________________

COMES NOW, FRANCISCO FUSTER-ESCALONA, and makes three requests. First, Mr. Fuster asks for leave to take very limited discovery in this case. Second, Mr. Fuster asks that this Court grant him an evidentiary hearing. In support of this Motion, Mr. Fuster relies the attached Certifications of Amy Gershenfeld Donnella, the undersigned counsel; Will Whittington, an expert in sexually transmitted diseases; Maggie Bruck, Ph.D., an expert in the effects of suggestive questioning on children; and, Richard Ofshe, Ph.D., an expert in the misuse of influence procedures and the creation of pseudo-memories by psycho-therapists; and upon the following:

1. Mr. Fuster received an Order from this Court, entered on January 5, 1999, denying his requests for funds with which to take depositions and to obtain expert opinions. This Motion also denied Mr. Fuster’s Motion for leave to take discovery, noting that the denial was without prejudice to have the issue reconsidered at a later stage in the proceeding, if necessary.

2. The Court’s order notes that, "[t]o obtain leave to conduct discovery, a habeas corpus petitioner must present specific allegations of fact which, if developed, would entitle him to §2254 relief. [citation omitted]." The Court notes that Mr. Fuster has failed to make such a showing at this juncture because "the bulk of Mr. Fuster’s contention are based upon newspaper articles and events that occurred long after his conviction became final." Order at 3.

3. The Court also finds that Mr. Fuster has thus far failed to make a showing that the state court factfinding procedures as to these postconviction claims were inadequate.

4. Finally, the Court notes that even if Mr. Fuster’s discovery requests were otherwise valid, they are premature, coming as they do before the Court has ruled on the procedural defenses put forth by the respondent, and that it would be wasteful "in the extreme" to permit Mr. Fuster to undertake costly discovery, only later to find that his claims were in procedural default. Order at 5.

5. Mr. Fuster herein addresses the concerns raised by the Court in its January 5 Order in several ways.

6. First, in recent weeks, counsel has finally located documents that answer a number of the questions Mr. Fuster had earlier sought answers to through discovery. Counsel has attached to this Motion her Certification, explaining the efforts undertaken to obtain these documents and the constraints under which Mr. Fuster has operated as the result of having no funds with which to obtain records from more obvious sources like the state. Counsel also attaches the response she received to her Public Records Act request from assistant state attorney Abraham Laeser, indicating that the cost to copy the records requested would be, in his words, "prohibitive." Please see Certification of Amy Gershenfeld Donnella and Donnella, Exh. 1.

Among the documents Mr. Fuster has now located are an inter-office memorandum dated February 19, 1985, from assistant state attorney Dan Casey to assistant state attorney Richard Shiffrin indicating that the sample obtained from Noel Fuster, used for his gonorrhea testing, was destroyed after three days by the laboratory. See, Whittington, Exh. 2 at 2. Thus, Mr. Fuster no longer needs to obtain discovery pertaining to the availability of that sample.

Mr. Fuster has also located documents that describe the methods used by the microbiology laboratory to test Noel’s throat sample. These include depositions of two laboratory technicians who handled and tested the sample and documents supplied by Jackson Memorial Hospital in response to a Subpoena Duces Tecum filed in the civil suit brought against Mr. Fuster and others by parents of children involved in the criminal prosecution. See, Whittington, Exhs. 4, 5, and 6. Thus, Mr. Fuster no longer needs to obtain further documentation regarding the testing procedures, nor does he need to depose laboratory personnel.

Mr. Fuster has also now obtained a copy of billing records dated August 26, 1985 and September 24, 1985, submitted to the Court by the Behavior Changers, the psychologists who met with Ileana Fuster in prison during the weeks leading up to her guilty plea and her testimony against Mr. Fuster. These records provide documentation of the many hours these therapists spent with Ileana. The records also document meetings between the therapists, Ileana attorney, and lawyers from the state attorney’s office, including John Hogan and Janet Reno.

These billing records do not eliminate the need to obtain the interview records themselves kept by the Behavior Changers, or the need to depose these two therapists. However, the records do provide documentation from the time of trial, which support statements made in Ileana’s 1994 statement that, inter alia, these therapists met with her for long sessions on an almost daily basis.

Accordingly, Mr. Fuster amends his earlier discovery requests, by asking only that he be permitted to obtain any notes the Behavior Changers may have kept of their sessions with Ileana Fuster, Michael Von Zamft or members of the state attorney’s office in connection with this case, and of any recordings they may have made of any such sessions. Mr. Fuster also asks that he be permitted to take the depositions of these two psychologists, Dr. Rappaport and Dr. Haber. However, Mr. Fuster withdraws his request to obtain further discovery from any current or former member of the state attorney’s office, asking only that he be given permission to renew this request should further investigation reveal the need to do so.

6. Mr. Fuster has been able to obtain the services of three expert witnesses, each of whom has prepared an affidavit or certification (hereafter "affidavit"). (As counsel’s Certification explains, Mr. Fuster is indigent and counsel is working on this case pro bono. However, Mr. Fuster’s family has collected a small fund to cover minor expenses and has been able to cover with this fund the nominal charges the experts have agreed to accept for their services in preparing these affidavits.) The affidavits of these expert witnesses are attached hereto, along with supporting exhibits, and incorporated herein. These affidavits provide factual support and scientific analysis relevant to the claims brought by Mr. Fuster.

Hence, Mr. Fuster offers these affidavits to show what evidence he could put on in support of the claims he raised in his petition that: gonorrhea test results introduced into evidence at this trial were unreliable and that the testimony of the state’s witness that these testing procedures were incapable of producing a false positive was wrong; b) scientific studies conducted since the time of trial prove the deleterious effect that suggestive interviewing has on children’s reports and that the reports of abuse made by the Country Walk children would have been inadmissible had the research existed at the time of trial that showed how such questioning renders a child’s reports and memories unreliable; and c) Ileana Fuster was subjected repeatedly to hypnosis while awaiting trial and her trial testimony reflects hypnotically-induced memories of events that did not occur rather than memories of actual historical events. (Please note that ultimate proof of this last issue depends in part on obtaining discovery from the psychologists who met with Ileana in prison to corroborate Ileana’s later description of the therapy she received.)

Because these issues were all raised, along with ineffective assistance of counsel, in state post-conviction proceedings and because the state court improperly denied relief without providing adequate factfinding procedures, Mr. Fuster asks that he now be given the opportunity to put on evidence before this Court so that he may prove he is entitled to the grant of a writ of habeas corpus.

The following is a summary of the expert affidavits attached hereto:

The first affidavit has been provided by W.L.H. Whittington, an expert in the testing procedures used to identify and diagnose sexually transmitted diseases. Whittington is a research scientist who currently serves as the Director of Epidemiology and Prevention Activities of the STD Control Programs for the Seattle-King County Department of Public Health and as the Director of the Neisseria Reference Laboratory for the Harborview Medical Center of the University of Washington in Seattle. Until recently, Whittington worked in a variety of capacities within the Center for Disease Control Division of Sexually Transmitted Diseases, including Chief of Epidemiology and the VD Control Division at CDC.

In his affidavit, Whittington reviews for the Court the reliability of the type of testing that was performed on Noel Fuster in 1984 to reach the diagnosis that Noel had gonorrhea of the throat. Whittington also reviews the inaccuracy of the testimony given by the prosecution’s witness at trial that the testing performed on Noel was incapable of producing a false positive result.

Whittington concludes to a reasonable degree of scientific certainty, based on his review of materials provided to him (and listed in the affidavit), the following:

The trial testimony given by the prosecution’s witness was inaccurate and highly misleading;

The testing performed to determine that Noel Fuster had gonorrhea of the throat was unreliable and would not meet contemporary standards of accuracy; and

The destruction by the laboratory after three days of the isolate taken from Noel’s throat does not comport with standards employed by laboratories then or now where the diagnosis of gonorrhea is intended for use as evidence in a criminal prosecution for child sexual abuse.

The third affidavit attached is that of Richard Ofshe, Ph.D. Ofshe is a professor of sociology at the University of California at Berkeley and co-author, inter alia, with Ethan Watters of Making Monsters: False Memories, Psychotherapy and Sexual Hysteria, Scribner’s, 1994 (reissued by the University of California Press in 1996.) The central focus of Ofshe’s research and writing in recent years has been in the area of the misuse of influence procedures and the creation of pseudo-memories by psychotherapists.

Ofshe was provided with a number of documents, listed in his attached affidavit and asked to assume, for purposes of rendering his expert opinion, that the statement under oath given by Ileana Fuster in Honduras in 1994 was both truthful and historically accurate. Using this as the hypothetical basis for his opinion, Ofshe was asked whether he considered the testimony given by Ileana Fuster at trial in 1985 to be reliable – that is, an accurate reflection of historical events as opposed to a report of pseudo-memories.

Ofshe provides his expert opinion, to a reasonable degree of scientific certainty, that Ileana’s trial testimony was not reliable but was the product of hypnotically-induced fantasies occasioned by the psychotherapy she received in prison.

Ofshe further explains that, in order for him to be able to render an opinion that was not hypothetical, he would need information from a source other than Ileana regarding the nature of the therapy sessions she had with the Behavior Changers. Ofshe suggests that the best evidence of this would be the notes of the therapists who conducted these sessions with Ileana, any recordings they may have made of these sessions and deposition testimony from them. Such information would either corroborate or disconfirm his hypothetical opinion that Ileana was repeatedly hypnotized, instructed to hypnotize herself repeatedly, and fed information while in a dissociative state that resulted in the creation of pseudo-memories.

Certification of Maggie Bruck, Ph.D.

The third affidavit is that of Maggie Bruck, one of the foremost experts in the field of children’s memory and the influences that can affect it. Bruck, a professor in the Department of Child and Adolescent Psychology at Johns Hopkins University, is co-author with Stephen Ceci, Ph.D. of Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, American Psychological Association: Washington, D.C., 1995. Bruck has written extensively in the field of suggestive interviewing techniques and has designed and conducted numerous studies that demonstrate the effects of suggestive questioning on children’s responses and memories.

In her affidavit, Bruck addresses several issues. First, she explains that at the time of Mr. Fuster’s trial in 1985, there was no research to support the testimony of Mr. Fuster’s expert witness, Dr. Lee Coleman, regarding the influence of suggestive questioning on the Country Walk children. Likewise, there was at the time no research to discredit the testimony of the state’s expert witnesses. By contrast, there now exists an entire body of research that demonstrates not only that suggestive questioning can affect the reports and memories of children but also demonstrates the often catastrophic effects the suggestive questioning can have.

In her affidavit, Bruck explains the new research in detail and relates that research to the interviewing techniques used by police investigators, including Joseph and Laurie Braga, when questioning these very young children.

Bruck concludes, to a reasonable degree of scientific certainty, that:

The methods used to obtain allegations of abuse from the children in this case render their resulting accusations as unreliable evidence;

In 1985, however, there were no studies upon which to base such a conclusion;

The testimony given by the experts for the prosecution has little if any scientific support;

The studies that discredit the opinions given by the state’s experts at trial did not exist in 1985.

 

The Adequacy of the State Court Factfinding Procedures.

As noted above, this Court has indicated that Mr. Fuster has not made a showing that the factfinding procedures available to him in state court were inadequate. Mr. Fuster notes, however, that although he was indigent at the time of post-conviction proceedings and counsel was proceeding pro bono, Mr. Fuster was not provided with funds to conduct any investigation nor was he provided with funds to secure the help of expert witnesses.

Most importantly, Mr. Fuster was not granted an evidentiary hearing in state court. Had he been granted such a hearing, he would have put on evidence to prove that his claims regarding the unreliability of the evidence and of ineffective assistance of counsel were valid and were not procedurally barred. Unfortunately, he was not given the opportunity to make this proof.

The state has argued in previous pleadings that Mr. Fuster was not entitled to discovery or funds in state court because his claims were time-barred unless they constituted newly discovered evidence. The state’s reasoning is flawed.

First, a petitioner in state court is entitled to an evidentiary hearing to demonstrate that his claims do indeed constitute newly discovered evidence. Mr. Fuster was not given such a hearing.

Second, at the time Mr. Fuster filed his Rule 3.850 petition in state court in Florida, he was still within the two-year statute of limitations period for filing a petition for post-conviction relief – whether or not his claims involved newly discovered evidence. His claim, for example, of ineffective assistance of counsel was properly and timely filed.

Nevertheless, the state postconviction court dismissed Mr. Fuster’s claim of ineffective assistance of counsel, stating that it was time-barred by virtue of his failure to assert it within two years of the dismissal of his direct appeal on July 25, 1986 and the return of jurisdiction to the state court. Resp. App. 332. However, Florida rules of procedure permit the filing of a motion under Rule 3.850 within two years of the date that the mandate has been filed, following a direct appeal. See Fla. Rules of Criminal Procedure, Rule 3.850(b), which states, "No other motion [other than a motion to vacate a sentence that exceeds the limits provided by law] shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case . . ." See also, Green v. State, 676 So. 2d 32 (Fla 2d DCA, 1996) Finality of judgment is measured in Florida by the date on which the mandate issues, following completion of the direct appeal. It is this date that determines the timeliness of a motion for postconviction relief. See, e.g., Spaziano v. State, 570 So.2d 303 (Fla. 4^th DCA, 1991); Cook v. State, 596 So. 2d 483 (Fla 1^st DCA, 1992); Gallo v. State, 571 So. 2d 76 (Fla. 4^th DCA, 1990); Miller v. State, 601 So. 2d 604 (Fla. 4^th DCA, 1992); Jones v. State, 602 So. 2d 606 (Fla. 1^st DCA, 1992). The mandate in Mr. Fuster’s case issues on December 2, 1991. He filed his Rule 3.850 Motion in November, 1993, before the two year period had run.

Thus, Mr. Fuster was clearly entitled to be heard on his claim of ineffective assistance of counsel. He was also entitled to an evidentiary hearing on his claims regarding the unreliability of evidence introduced against him at trial, whether or not these claims constituted newly discovered evidence.

As noted in his Amended Corrected Federal Habeas Petition, if it was true that Mr. Fuster’s gonorrhea claim did not constitute newly discovered evidence, then that must be because it was known in the scientific literature at the time of trial that the testing procedures used on Noel Fuster were unreliable. Thus, had Mr. Fuster been granted funds and an evidentiary hearing, he could have proved that the state put on false testimony when its own expert witness testified that the procedures used to diagnose Noel were incapable of being inaccurate. Mr. Fuster could also have proved that the state violated his constitutional rights by destroying the evidence – i.e., Noel’s throat specimen – that would have enabled him to challenge the state’s evidence. Mr. Fuster could also have proved that his attorney provided ineffective assistance of counsel in failing to challenge the reliability of the gonorrhea testing.

Thus, had the state court not made its initial (erred) determination that only claims constituting newly discovered evidence could be heard, Mr. Fuster could have proved three constitutional violations – of Due Process, of his right to confrontation and of effective assistance of counsel – just on the issue of the gonorrhea testing. The state court’s incorrect procedural ruling, however, resulted in the court denying Mr. Fuster the right and ability to engage in factfinding to which he was entitled.

With regard to the claim that Ileana Fuster had been hypnotized, the trial court said, inter alia, that the facts underlying this claim were ascertainable at the time of trial. If so, then this claim could have been presented as an issue of ineffective assistance of counsel, with proof being offered that Mr. Fuster’s defense counsel failed to investigate and present evidence that Ileana Fuster’s trial testimony was the product of hypnosis.

The state court also noted in ruling on this claim that Florida law does not permit an expert witness to comment on the truthfulness or credibility of a witness’s statement in general. Resp. App. 333. Again, had the state postconviction court permitted, as requested, an evidentiary hearing on this matter or funds to obtain expert affidavits, Mr. Fuster could have demonstrated that he did not seek to have an expert testify as to Ileana’s truthfulness or credibility. Rather, Mr. Fuster sought then (as he does now) to have an expert testify as to the hypnotic procedures that were used on Ileana that rendered her trial testimony unreliable and inadmissible. See, e.g., Ofshe Affidavit at ¶¶13 and 16. The state postconviction court put the horse, so to speak, before the cart, cutting off factfinding proceedings on bases that would have answered that court’s procedural concerns.

Finally, the state postconviction court misunderstood the argument Mr. Fuster made with regard to the suggestive questioning of children. The state court found that issues involving the interviewing techniques had been litigated at trial. Further, the state court believed that the basis for Mr. Fuster’s newly discovered evidence claim lay in evolving law from another jurisdiction. That was a complete misapprehension by the state court.

Mr. Fuster sought in his state postconviction proceedings to demonstrate that the testimony given by his expert at trial, while prescient in the sense that Dr. Coleman intuitively anticipated what research would later prove, was wholly unsupported by scientific research at the time of trial. Indeed, Dr. Coleman was entirely discredited on cross-examination as he was forced to admit that there were no scientific studies that supported his beliefs and that there were no experts in the field who would agree with his positions. Moreover, the defense was unable at trial to debunk the unsupported assertions of prosecution expert witnesses who claimed to be able to judge when children were making true reports of sexual abuse – again, because the research had not yet been done that would prove their assertions false.

As Maggie Bruck’s affidavit makes plain, the research simply did not exist in 1985. There now exists, however, an uncontroverted body of scientific studies that would have supported every one of Dr. Coleman’s assertions. More than that, the new research demonstrates the far-reaching impact of suggestive questioning in ways that could have been graphically shown to the jury through videotapes of children participating in these research studies. The new research also shows quite strikingly how the false reports given by these children defy all previous expectations of child experts that a child who is lying will appear rigidly consistent, will fail to exhibit appropriate affect or will talk in generalities rather than providing highly detailed accounts. See Bruck Affidavit.

The state court permitted no factfinding on this claim. Had the court granted an evidentiary hearing as requested, Mr. Fuster could have demonstrated that this issue fit precisely within the definition of newly discovered evidence.

For all the foregoing reasons, Mr. Fuster asks this Court to:

1) Grant him an evidentiary hearing at which he can put on the expert testimony of W.L.H. Whittington, Richard Ofshe, and Maggie Bruck;

2) Grant him limited discovery to obtain the notes of the Behavior Changers and to depose them;

3) Grant him the funds necessary to pay his expert witnesses for their time and travel expenses to testify at an evidentiary hearing;

4) Grant him the funds necessary for obtaining the discovery requested, including funds for counsel to travel to Florida for purposes of the depositions; and

5) Grant counsel funds to travel for purposes of the evidentiary hearing.

Respectfully submitted this __ day of February, 1999.

_________________________________

Amy Gershenfeld Donnella,

Attorney for Francisco Fuster-

Escalona

310 Chamounix Road

St. Davids, PA 19087

610-341-9566b

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