Thursday, August 29, 2013

'West Bloomfield parents allowed to sue prosecutors over faulty sex-abuse case'

A U.S. Court of Appeals ruling on Wednesday allows a West Bloomfield couple’s lawsuit to proceed to trial over claims that their constitutional rights were violated after the father was accused of raping their autistic daughter, leading to a prosecution that a judge later described as a “runaway train.”

The appeals court said governmental immunity doesn’t shield Oakland County prosecutors, Walled Lake Consolidated Schools officials and staffers from the Michigan Department of Human Services from liability for their actions in the case.

The case, involving Julian and Thal Wendrow, drew nationwide attention because the rape claims were made using a controversial method known as facilitated communication. Their daughter, then 14, has severe autism and cannot speak. Through facilitated communication, known as FC, the girl would type messages on a keyboard with a facilitator holding her arm and guiding her movements.

Some of the messages typed in November 2007 included allegations that Julian Wendrow had repeatedly raped his daughter since age 6 and that her mother was aware but didn’t stop the attacks.

Julian and Thal Wendrow, who say they’ve been waiting more than five years to redeem their reputations, welcomed the appeals court decision.

“It’s been a long haul,” Thal Wendrow said. “All we ever wanted was to get to a place where we could tell our story ... a jury trial where we can be fully vindicated.”

Oakland County Corporation Counsel Keith Lerminiaux said county officials were disappointed by the ruling, which reinstated claims against former prosecutors Deborah Carley and Andrea Dean. Walled Lake Schools officials and the Michigan Attorney General’s Office didn’t respond to requests for comment.

“The court’s opinion simply states that their conduct needs to be further reviewed by the district court,” Lerminiaux said. “The court did not make any determination of wrongdoing on their part. We continue to believe that the actions of the prosecutors in this case were appropriate, and for that reason, we will continue to vigorously defend the claims made against them.”

Documents have shown the investigation into the rape allegations was flawed nearly from the start.

Walled Lake Central High School facilitator Cindi Scarsella helped the Wendrows’ daughter type messages in November 2007 that said her father had sexually abused her and her mother turned a blind eye.

Critics of facilitated communication say the facilitator is the true author of the messages. The messages typed using that method included a number of factual errors, such as a passage describing nonexistent relatives and an incorrect name of the family dog.

School officials alerted police and state protective services officials. Both parents were arrested, and the girl and her brother, who has a milder form of autism known as Asperger’s syndrome, were removed from the family home.

Thal Wendrow was jailed for six days before being released on an electronic tether with the condition that she not contact her children. Julian Wendrow spent 80 days in the Oakland County Jail before the case collapsed. The family was separated for 106 days.

But a nurse’s exam of the girl found no evidence of sexual abuse. And the use of facilitated communication caused problems. At a district court hearing, the judge had Scarsella leave the room when the girl was asked questions and then return to help her type answers. The girl was unable to answer a single question correctly when Scarsella couldn’t hear it.

Still, prosecutors pressed ahead, saying the family had advocated for facilitated communication to the point of demanding that the school district use it. FC isn’t widely used because studies have concluded the facilitator is actually typing for the disabled person, and the method has resulted in a number of false sexual abuse allegations.

The two Oakland County prosecutors, Carley and Dean, removed the girl’s brother from his classes during school hours to question him during the investigation. Even though he was considered a suspect in the case, he had no lawyer or guardian present with him.

“It was objectively unreasonable for Dean and Carley to subject (the brother) to an interview of this type without consent,” the court ruled.

The ruling went on to note: “There is evidence to suggest that Dean and Carley were aware of significant issues with the use of FC, as well as (the girl’s) cognitive abilities and that they chose to ignore appropriate protocols and chose not to make any effort to safeguard against the known dangers of FC.”

The ruling also said Rebecca Robydek, a social worker with the state Department of Human Services, isn’t entitled to immunity for removing the children from their home based solely on the girl’s statement made through FC.

“Robydek’s actions are especially troubling in this situation given the multiple documented errors in the facilitated statement used as the sole basis for Robydek’s recommendation,” the court ruled.

The ruling criticized Robydek for turning the girl’s 13-year-old brother over to police for questioning without alerting his guardian or a lawyer. During a taped interview, West Bloomfield Police Detective Joseph Brusseau attempted to get the brother to corroborate the rape allegations and repeatedly lied to him, telling the boy that investigators found videos of Julian Wendrow raping the boy’s sister.

No such tapes were ever found. The boy cried at points during the two-hour interrogation, saying he could never trust his father again.

The West Bloomfield Police Department was originally named in the Wendrows’ lawsuit, but in December 2010, the township’s insurance carrier settled the claim for $1.8 million. Township lawyer William Hampton told the Free Press the settlement was “nothing more than a business decision by the insurance carrier,” and the police acknowledged no wrongdoing.

The Wendrows’ lawyer, Deborah Gordon, said she was happy with Wednesday’s ruling, but even a trial can’t replace what the Wendrows have lost.

“You’ll never completely get your name back — there will always be allegations,” Gordon said. “Till the day they die, that will be part of their public face and public records.”

Julian Wendrow agreed, saying that on a recent visit to his native South Africa, the case followed him there through computer record checks.

“I was detained for more than two hours because this stuff is still in the system,” Wendrow said. “It really hurts. It’s very difficult to describe.”