Archive for January, 2009

Massachusetts SJC to Review Shanley Case

Monday, January 26th, 2009

Dear Friend of Justice,

This morning I learned that the Massachusetts Supreme Judicial Court has granted a direct review of the Paul Shanley case. Here is a copy of the petition.

To learn more about the Shanley case, read my previous post, which is my account of the trial, and visit this link.

It will be interesting to see whether the SJC confronts or ducks the issue of whether repressed-memory testimony can be considered reliable in Massachusetts.

-Bob Chatelle

A Review of the Shanley Trial

Monday, January 26th, 2009

Dear Friend of Justice,

Four years ago, my parnter Jim D’Entremont and I attended the trial of Father Paul Shanley. At the time, I sent a few reports to my old FOJ mailing list. I would like to repost those reports here:

My Comments on the Shanley Trial

After the jury went out, but before the guilty verdict came in, I sent the following message to the people on my mailing list:

Dear Friend of Justice,
What needed to be made crystal clear to the Shanley jury — as well as to the media and the public — was that “repressed memory” (more accurately “traumatic amnesia” or “dissociative amnesia”), if it exists, is something radically different than the kind of forgetting, forgetting about, and remembering that all of us are very familiar with from our own experiences.
We all forget, or forget about experiences, often for years, and often we recall them when we encounter an appropriate trigger. We can and do forget or forget about unpleasant experiences, even very unpleasant experiences. (My own pet theory is that we are especially prone to forget about experiences in which we behaved in ways we are not proud of, or experiences that deeply embarrassed us. Events, in other words, that cause what is called cognitive dissonance. But I don’t know the literature well enough to know if research has been done in this area.)
The theory of traumatic amnesia is that — at least for some significant number of people — very disturbing, traumatic events (especially repeated traumatic events) are somehow banished from consciousness in order to protect the individual. As Dr. Chu testified at the Shanley trial, these memories are locked up behind what he called a “dissociative wall” and are not accessible until something happens to break the wall. Only when the wall is broken will the memories come flooding back.
The memory wars are about a number of issues. Is there any reliable and credible evidence that traumatic amnesia even exists? If it does exist, how common is it? If it exists and the “dissociative wall” is broken, are the “recovered memories” reliable? (These are not the only issues, but these are a few of them.)
The memory wars are being fought within the clinical, not the scientific, communities. Scientists, as a rule, are extremely skeptical about “traumatic amnesia” because the evidence to support it simply doesn’t exist. Evidence that has been advanced to support the theory, on examination, has thus far turned out to be too flawed to be of scientific use.
I was hesitant to write the preceding short paragraphs, because most of the world’s leading experts on memory happen to be members of this list. I expect to receive some corrections from them. (In my defense, I didn’t consult any sources, I just wrote those paragraphs off the top of my head.)
Paul Busa — Paul Shanley’s accuser — claims to have been repeatedly raped on a near weekly basis by Paul Shanley over a period of six years. Busa only discovered this three years ago, however, because he claims to have suffered traumatic amnesia. There is no evidence other than his recovered memories to corroborate his accusations. Although Busa claimed that Shanley regularly removed  Busa from class in order to rape him, Rooney could produce not a single witness who ever saw this happen. Not one teacher. Not one student.
Since the only evidence against Shanley was Paul Busa’s uncorroborated recovered memories, it was critical that the jury know (1) what traumatic amnesia is supposed to be and (2) what the evidence is that it even exists and (3) whether memories “recovered” after years of being locked away by traumatic amnesia are reliable.
Had Dr. Elizabeth Loftus been given 10 to 15 minutes to make a short presentation, she would have made all of this extremely clear. Only a handful of people in the world know this material as well as she does.
Unfortunately, that is not how courtrooms work. Loftus could only present information in response to questions. Dr. Loftus was first at the mercy of a defense attorney who didn’t seem to know the questions he should ask,  and then at the mercy of a ruthless and underhanded prosecutor who was only interested in distorting Loftus’ work so that it would seem to prove the very opposite of what it in fact does prove. Finally, Loftus was again at the mercy of a defense attorney who did not give her the opportunity to undo Rooney’s dirty work in redirect examination.
While I retain some hope, I do not expect to see justice done in this very important case.
-Bob Chatelle

After Shanley’s conviction, I sent this follow-up message:

Dear Friend of Justice,
I had thought that my many posts on the subject had made clear my position on the Shanley case. But I still get many emails asking me questions that I thought I’d already answered. So I thought I’d send one email to try to summarize my views, beliefs, and concerns.
1. I believe without a shred of doubt that Paul Shanley is innocent. The only evidence presented against him at trial was the uncorroborated recovered memories of a very disturbed young man who had received $500,000 from the Archdiocese in a settlement of a suit against the church that never went to trial.
2. There is no reliable and credible evidence that the kind of traumatic amnesia claimed by Paul Busa exists. It follows that Paul Busa did not tell the truth. I don’t know whether he was strictly lying, because he may well believe all of this nonsense by now. There are a number of ways his “memories” could have been created. But since there’s no reason to believe that these “memories” are true, this is not a matter that much concerns me. The validation of traumatic amnesia by a jury is a serious matter that may well have disastrous consequences. While it is proper for juries to decide credibility, it is not and should not be the province of a jury to make decisions about the reliability of evidence.
3. There is no evidence that Paul Shanley is or ever was a pedophile. The only accusations that Paul Shanley ever sexually misbehaved with children came from Paul Busa and his three co-suers. People do not suddenly become pedophiles.
4. Paul Shanley lost no civil suit against Busa. Busa and his chums were smart enough to realize that there is no profit in suing someone without money. They were no dummies. They sued the church. And the church settled.
5. An alarming number of people have expressed the opinion that while Paul Shanley was innocent of the crimes for which he stood trial, nevertheless it was right that he was convicted because he did “other bad things.” First of all, I don’t even know whether this is true. I suspect (but don’t know) that Paul Shanley had sexual relationships with young men and teenagers. And let’s assume that this is true for the sake of argument. I further don’t know whether some of them might have been under the age of consent in Massachusetts, which is 16. If  these young men and teenagers were being counseled by Shanley, this is a most serious breach of professional ethics for someone who was acting as a social worker.  Regardless of the age of the young men involved. But a breach of ethics is not the same as a crime.
6. People should be convicted or acquitted of the charges before them. People should never be convicted because jurors believe that the defendant may have “done other bad things.” That is not due process. That is not justice.
7. Due process, like freedom of speech and the other rights protected by the U.S. Constitution, belongs to all equally or it belongs to none of us. Paul Shanley and the killers of Matthew Shepard should have had the right to due process. Nazis should have the right to free speech. As Barney Frank once said in a speech that I attended (and I don’t claim to quote precisely), “If you believe in a right you must support that right even when it is exercised in a way that you find most obnoxious.”
8. If you believe that the Constitution protects the rights of “good” people, but not “bad” people, then you don’t understand the founding principles of this nation. People sometimes ask me about my politics. I would describe myself as an ultra-reactionary. I would like to see this nation return to the principles it was founded upon over 200 years ago. But if that ever happens, I certainly won’t live to see it.
-Bob Chatelle

I sent this email after attending the sentencing hearing:

Dear Friend of Justice,

I was anticipating this morning’s Shanley hearing with so much dread, that I
got next to no sleep last night. (Ditto for Jim.) It was, if anything, even
worse than I had imagined.

As you probably heard by now, Shanley was sentenced to 12-15 years. He is
74. But even if he were 24, I wouldn’t expect him to live terribly long in a
Massachusetts prison. Were he to actually survive this sentence, the
Middlesex DA’s office could incarcerate him from one-day-to-life as a
“sexually dangerous person.” And if he were to avoid this fate, he would
serve ten years probation during which he would have to undergone “therapy.”

This morning, I was given permission to reveal something that I have known
for a very long time.

The Middlesex DA’s office offered Shanley a deal. If he would plead guilty
to one count, his sentence would be time served followed by two years of
probation. No further incarceration. But Shanley refused to plead to
something he did not do.

Should this plea bargain be made public, I fully expect Martha Coakley will
deny it. She did something similar in a case I was involved with a couple
years ago. Martha can lie without batting an eye.

I’m sure Shanley was offered the deal because (1) the DA’s office knew its
case against Shanley was extraordinarily weak and (2) they expected Frank
Mondano to provide a strong defense. But they were wrong about the second

We were told that the hearing would start at 9, and we arrived at 8:15 to
insure getting into the courtroom. We entered the courtroom at 8:30, but
eventually were told that the hearing wouldn’t start until ten. The
courtroom quickly filled up with media and members of various
victim/survivor groups.

The mood among the latter was celebratory and almost voluptuously mean. We
overheard many charming comments during our wait. Someone accused a court
officer of “catering to the NAMBLA contingent.” One wit gathered a large
laugh by saying he’d heard that “Shanley called in sick.”

The hearing began at 10:15. Assistant DA Lynn Rooney asked for two life
terms plus ten years probation. (Which she essentially got.) She stressed
that Shanley showed, “No remorse. No resposponsibility.” (For crimes he did
not commit. I have seen Rooney use those same lines against the Amiraults.)
She stated that Paul Busa’s promising career in the Air Force had come to an
end on 2/11/02, when he suddenly “remembered” his six years of weekly abuse.

Busa’s father, Richard, began his impact statement by saying, “This verdict
is a tremendous relief and a source of satisfaction.” He talked about his
son’s “lifelong horror” and said that Shanley had “robbed my little boy of
his innocence” and “took his faith away.”  He concluded by mentioning that
he works for the Department of Correction, and that “I’ve seen a lot of evil
people, but I want you to know [Shanley] is right at the top of the list.”

Busa’s wife, Teresa, cried through her statement. She said that Paul would
get “physically ill walking through the door of the church” and described
her husband “punching a hole in our bedroom wall” with his fist. She spoke
of Paul’s recurring “stress rash” and “weeks of depression when he wouldn’t
shower or shave.” She said that Paul “will never find comfort in faith.”
Addressing Shanley, she said, “No words will ever describe my disgust for
you. You are sick to the core.”  She said she wished he would die in prison,
beg God for forgiveness and be denied, and spend eternity in hell.

After her statement, Teresa and Paul shared a tearful hug. (Indeed, there
was constant hugging going on among the victim/survivors. A friend of mine
who ended up sitting in the thick of them found himself consoled on

Paul Busa would not read his statement, so it was read by Assistant DA

Busa (via Rooney) said, “This monster must spend the rest of his life in
prison…. He ripped my character and my world apart…. He is a pedophile,
possibly the worst ever.”  Busa also falsely claimed, “He is a founding
member of NAMBLA and openly advocated sex between men and little boys.” (If
you repeat a lie often enough does it eventually become true?)

Busa also said, “I want him to die in prison, whether by natural causes or
otherwise…. However he dies, I hope it is slow and painful.”

Shanley’s lawyer, Frank Mondano, criticized the DA’s written argument for
sentencing. He pointed out that its recitation of facts were not the facts
presented at trial. He noted that Shanley had no criminal record, and that
the public outcry against him had been “fueled by half-truths and lies.” He
mentioned that public statements by the jurors indicated that they had paid
little attention to the facts. (This would have been difficult, considering
that the Commonwealth presented no reliable evidence.) Mondano pointed out
that the entire prosecution had been “geared to emotion” and that “this is
the point where emotion should be separated from the facts.”

Mondano expressed fear for Shanley’s safety in prison, and cited a recent
quote from a representative of the Massachusetts Correctional Officers who
said they could hardly protect themselves let alone the inmates.

As expected, there was no statement from Shanley. It had been Mondano’s
policy from the beginning to alone Shanley to speak to no one. I think this
hurt Shanley a great deal.

There was a recess while the judge prepared his sentence. “That Mondano. He
is a scumbag,” said a woman sitting in front of me.  “He’s just a low-level
felon,” the man to her left said supportively. The victim/survivor crowd
kept exchanging big warm hugs. Busa worked the room, laughing and joking
among his adoring supporters. For a time he hovered a few feet away from us,
accepting congratulations for his eloquent victim’s impact statement.  Jim
overheard him say, “I wrote something about the gay life, but they wouldn’t
let me keep it.”

Before passing sentence, the judge spoke of the devastation to Paul Busa
“when he first recovered his memories.”

Traumatic amnesia is now considered fact in Massachusetts courts.

I think the time has come to retire the term “recovered memory” completely.
It means too many different things to too many different people. All
memories are recovered. No memory is continuous. A continuous memory would
be with us every waking moment. The interval between retrieval of the “same”
memory can very from minutes to decades. (Actually, I doubt that any of us
ever retrieves the “same” memory in precisely identical ways. memory is
always changing.)

>From now on I will use terms such as “massive repression” and “traumatic
amnesia.” But whatever you call it, there’s no evidence indicating that it

In my opinion, it is essential that this verdict is appealed and appealed in
the most careful and professional way. This will be a hard case to win,
because this case is so politically loaded. But the effort has to be made.
Too much is at stake.

The challenge will be to keep Paul Shanley alive while the appeal is written
and argued. I fear that Paul Busa may get his wish and that Shanley will be
murdered in prison.

I have the most uneasy feeling that I have just come from an execution.

-Bob Chatelle (with Jim D’Entremont)
For a good account on the Shanley case, I recomment this article.

Retired Judge Borenstein Joins Ben LaGuer Defense Team

Sunday, January 4th, 2009

Dear Friend of Justice,

I have long been interested in the Ben LaGuer case. LaGuer struggled for years for DNA testing. But when it was done by the Massachusetts state crime lab, it incriminated rather than exonerated him. Almost all of his support, which once included our current governor Deval Patrick, instantly evaporated. LaGuer, however, continued to insist upon his innocence vehemently and said that mistakes must have been made in the testing. Few paid attention. In the last gubernatorial campain, Patrick’s opponent, Kerry Healey, made Patrick’s one-time support of LaGuer her major issue and ran hysterical TV ads that, fortunately, did not work.

In the intervening years, however, it has come to light and been well documented that the state crime lab was being run by incompetent clowns. The main effect of the incompetence was that many guilty people were allowed to remain at large because their DNA was improperly handled. LaGuer’s DNA was also improperly handled. Protocol dictates that the two samples be tested at different times and at different places. Testing both at the same time on the same bench runs a great risk of contamination of one sample with the other. This very likely happened in the LaGuer case.

I’ve long been on LaGuer’s mailing list. A few days ago I got a letter telling me that former Judge Borenstein was joining his defense team. You may be interested in Harvey Silverglate’s  tribute to Borenstein on his retirement from the bench. Borenstein proved himself a true friend of justice with his excellent decision in the Amirault case.

LaGuer’s included a copy of a letter that Borenstein had written him. I would like to quote one passage:

Based on all of this information, I believe there are grounds worth pursuing for attacking the validity of the DNA evidence and, hopefully, turning it in your favor. I am now familiar with the sequence of events that led to the DNA mishap. I am confident that we can argue that the DNA analysis provides evidence that actually contradicts the victim’s account, and therefore, additional exculpatory evidence for a new trial. This is an issue that may be developed in the courts, via a motion for a new trial, and in the arena of public through the media. it is my judgment, based on everything I have read, that there is a very good argument to be made on your behalf that no future jury be allowed to consider this evidence, which prosecutors have argued is reliable. It is my opeinion that the DNA evidence fails to meet even basic Daubert-Lanigan admissibility criteria.

I wish Borenstein success and hope that LaGuer gets another day in court.

-Bob Chatelle