Thursday, December 28, 1995



A guru, an orphan, a community activist. A little girl battling a devasting illness, a minimum wager looking for a job, and parents who lost their "miracle baby."

They let us into their lives so we could tell their stories. But their lives go on. For some, 1995 has been a triumph. For others, a struggle. For most, it's been a little of both.

Jennifer Bush was not the star of The Nutcracker. To most in the audience, she was just another - albeit adorable - dancer. To those who know the 8-year-old and her medical struggles, however, her performance was nothing short of stellar.

In her brief, emergency-filled life, Jennifer (Dream House, Jan. 28) has had more than 40 operations. But 1995 was her best year yet, her mother, Kathy Bush, says.

Jennifer has neurogenic gastrointestinal pseudo obstruction, which means her stomach doesn't digest food. She has seizures and is plagued with infections because her immune system doesn't function properly.

This year, other than an operation in January and a 10-day hospitalization in the summer for an infection, Jennifer has been uncommonly healthy.

Earlier this month, the Coral Springs youngster danced on the Parker Playhouse stage in two roles (as mouse and angel) in the Ballet Nova of South Florida production of The Nutcracker.

She even persuaded her two brothers, Jason, 16, and Matthew, 13, to be in the ballet. They've missed so much time together because of Jennifer's illness, that they consented, their mother says.

"We have a lot of reasons to give thanks," Bush says.

Jennifer says she's thankful to Dr. Gary Birken, who made her tummy better by removing a section of her small intestine. At first, she was self-conscious about the bulge beneath her clothing caused by the ostomy bag. That has passed.

Although Jennifer's future remains uncertain, that operation, says her mother, "opened up so many doors for Jennifer."And it all but eliminated nightly intravenous feedings.

"She's a real trouper," says Kathy Garrett, owner of Rising Starz dance school and artistic director of Ballet Nova of South Florida. "She's upbeat. She never complains. She just wants to be like everyone else.

"She's the bravest child I know," Garrett says.

She also feels for others who are sick and on the sidelines. A few days before her performance, she said to her mother, "I bet there is a little girl who wishes she was healthy enough to dance like me."

She asked her mother to call Make-a-Wish Foundation to find such a child to invite to the ballet. Learning that the chosen girl's birthday coincided with the performance, Jennifer gathered up her own money to buy her new friend a gift: a video of The Nutcracker.


May 25, 1999

Lawyer: Give Mom Her Day In Court


An attorney representing Kathy Bush, the Coral Springs mother accused of making her child sick in order to get attention, filed motions on Monday for a speedy trial and dismissal of Munchausen syndrome by proxy, a controversial diagnosis being used in the case.

"This court should not lose sight of the only question in this case: Did Kathy Bush commit child abuse? The only relevant inquiry is, was there an act of child abuse or not?" said Robert C. Buschel, attorney for Bush, at a hearing at the Broward County Courthouse.

"The court should exclude testimony about this unsubstantiated syndrome du jour," Buschel said. Prosecutors contend that Kathy Bush suffers from the rare Munchausen mental disorder and intentionally caused her daughter, Jennifer, to become ill to attract attention to herself. Prosecutors and social workers say Kathy Bush duped doctors and subjected Jennifer to 40 surgeries and 200 hospital visits by the time she was 8. Her gallbladder, appendix and part of her intestines have been removed. She had a catheter surgically implanted in her chest, a tube running into her stomach and still another into her intestines for feeding.

Kathy Bush's attorneys have denied the accusations and said that Jennifer Bush was diagnosed with a gastrointestinal disorder that resulted from an immune system deficiency.

Attorneys in the case are under a gag order and cannot discuss court proceedings.

Bush was arrested in April 1996 and charged with aggravated child abuse and organized fraud, stemming from the family's appeals for donations and free medical care for the sick child.

Bush was later charged with welfare fraud for failing to report assets that would have made the family ineligible to participate in a state Medicaid program.

Shortly after Kathy Bush's arrest, the state Department of Children & Families removed Jennifer Bush from her parents' home and placed her in protective custody. It has also petitioned to sever the parental rights of Kathy Bush and her husband, Craig.

Buschel, Bush's court-appointed attorney, urged Judge Victor Tobin to set a trial date for the case, arguing it has been postponed long enough.

Tobin is scheduled to set a trial date on Thursday. Barbara Bryan, of the National Child Abuse Defense and Resource Center, said courts around the country have too often wielded Munchausen by proxy against women in order to sever parental ties.

"This particular case has serious implications for children," Bryan said. "There are financial incentives for states to move forward with adoptions. They talk often about moving children out of foster care but they are also putting more in. When you use this mythical malady against women and their families, it becomes very suspicious," she said.

Click here to see: Kathy's motion

Tuesday, August 31, 1999


By JOHN HOLLAND Staff Writer

Prosecutors rested their case against Kathy Bush on Monday without ever mentioning the rare disorder they said caused her to poison her daughter, fabricate the child's illnesses and tamper with her medical treatment.

Instead, prosecutors focused on what they called overwhelming evidence that 12-year-old Jennifer Bush spent the first nine years of her life in hospitals and on surgical gurneys because of her mother.

Prosecutors claim Kathy Bush suffers from the rare disorder Munchausen by Proxy, in which parents make children ill to gain attention. But they called it child abuse.

Bush's lawyers argued that prosecutors suppressed medical records that could clear her. They claimed some of Jennifer's setbacks came when she was hospitalized and far away from her mother.

Defense lawyer Robert Buschel asked Circuit Judge Victor Tobin to throw out the case because prosecutors failed to explore all possible reasons for Jennifer's series of illnesses, which included dozens of hospitalizations and operations.

Tobin rejected the motion. The trial is scheduled to continue today and may conclude by the end of the week.

Kathy Bush was arrested more than three years ago and charged with child abuse after local doctors and nurses contended she was causing Jennifer's illnesses.

Jennifer was placed in a foster home and is now considered healthy, prosecutors said.

Bush's lawyers were scheduled to open their defense today with testimony from a family therapist who visited with Jennifer and her mother.

Before the week is over, they are expected to call experts who will testify that Jennifer suffered from severe -- and very real -- immune and gastrointestinal disorders.

Thursday, September 2, 1999
Bush's son testifies his 'mother did
everything she could' to keep sister alive

By JOHN HOLLAND, Staff Writer

The polite young Marine dutifully came to his mother's rescue Wednesday, Jason Bush told jurors that his kid sister, Jennifer, loved chicken McNuggets and pizza and playing in the dirt with her brothers. That she'd often pull the tubes from her body and run from her nurses because she wanted so badly to be a "normal" little girl.

And that his mother, Kathy Bush, worked valiantly to raise the young girl through a series of illnesses, dozens of operations and painful, frightening seizures. What Jason Bush couldn't tell jurors, however, is why his little sister suddenly got better when state investigators took her away from her parents.

Nearly three years after Kathy Bush of Coral Springs was arrested and charged with intentionally making Jennifer sick to gain attention and sympathy, Bush's lawyers called their first witnesses.

They argue that Jennifer, now 12, was misdiagnosed and may have been a victim of medical malpractice. And they said that Jennifer was outgrowing most of her ailments and would have continued to improve if she had stayed with her family. "My mother did everything she could to keep my sister alive, sir," said Jason, 20, who is stationed at Camp Pendleton, Cal.

Prosecutors hammered their point that Bush did everything she could to keep Jennifer from getting better, even altering her daughter's medicine to increase symptoms. By the time state investigators intervened in April 1996, Jennifer had been hospitalized 200 times and had about 40 operations, including the removal of her gall bladder, appendix and a portion of her intestines.

She has not been hospitalized since she left her mother. Jennifer Bush is a healthy young girl who plays basketball and soccer, prosecutors said. Her family has not been allowed to visit since May.

Jason Bush, poised and sincere, mounted a stirring defense of his mother and described a trying life for the entire family of coping with Jennifer's mounting illnesses.  As a little kid he'd help with her medication and check on the feeding and other tubes invading Jennifer's body, he said.

"We all cared for my sister and we all made sacrifices, sir," he said. "I slept (at the hospital) many nights and so did my mother and father. We all grew up quickly, especially Jennifer... She was very knowledgeable of her problems and her medication."

Prosecutors say Kathy Bush suffers from Munchausen Syndrome by Proxy, a rare mental disorder in which parents make their children ill and fake symptoms to gain attention. In the years before her arrest, Bush worked vigorously to stir up publicity for Jennifer, gaining the attention of First Lady Hillary Clinton, baseball player Jeff Conine and state and national media.

Broward Circuit Judge Victor Tobin has not allowed Assistant State Attorney Bob Nichols to specifically argue that Bush has Munchausen. Instead, prosecutors presented evidence that Bush was abusing her daughter while providing no motive.

Wednesday, Nichols slipped Munchausen into the proceedings for the first time, prompting defense attorney Robert Buschel to ask for a mistrial. Tobin denied the motion.

The controversy came when Mary Lynne Blank, one of Jennifer's primary nurses, testified that the girl's illnesses were real and she was well cared for.

During cross-examination, Nichols suddenly asked Blank if she had told a colleague, Lisa McKinnon, that Bush was abusing Jennifer and suffered from Munchausen.

"No, absolutely not," Blank said.

In fact, McKinnon and Blank had never worked together or even met. And McKinnon did not make that statement during a deposition, during her court testimony or in interviews with investigators during the past three years.

"For the first time the state just throws out Munchausen Syndrome by Proxy without a good-faith basis for the question," Buschel said. "It was just done to throw this trial because things were going (against the state). This is just a mistrial statement."

The trial will not resume until Sept. 28, as several jurors have to be out of town on vacation or for business.

John Holland can be reached at or at 954-356-4531.

Thursday, September 30, 1999

Nurse Backs Mom In Abuse Trial
She Tells Jurors Girl Was Improving


A nurse who cared for Jennifer Bush for six years testified on Wednesday in the child abuse trial of the girl's mother that she never saw the child mistreated in more than 300 visits to the Bushes' home in Coral Springs.

Robin Helfan, a home health-care nurse who testified for the defense, said she worked at the Bush home from 1989 to 1995 and that Jennifer's health was steadily improving at the time child abuse and fraud charges were brought against Kathy Bush three years ago.

Helfan said Jennifer was eating solid food and the medical plan called for the removal of her feeding tubes just before the 12-year-old was taken from her parents and placed in a foster home.

"It wasn't suddenly that she began to eat solid foods because she had been improving," Helfan told the six-member jury in Circuit Judge Victor Tobin's court.

"She gradually ate more over a five-year period. She likes Chicken McNuggets. She only eats what she wanted. I never saw Kathy Bush do anything," Helfan said.

The prosecution has charged that Bush, 41, intentionally made her child ill.

Jennifer's seemingly chronic, unexplained illnesses caused her to spend much of her first nine years in hospitals, where she was diagnosed with an immune system deficiency, gastrointestinal problems and a seizure disorder.

Helfan said that as a nurse she was not qualified to diagnose seizures but that she noted the symptoms of seizures several times throughout the years in her nursing records.

Psychologist Joseph Rabinovitz, who also testified on Wednesday, said he never suspected Jennifer was abused but that occasionally she seemed weak, wasn't feeling well or that "she didn't look right" during her five years in therapy.

The trial, which began in July, continues today.

Copyright 1999, SUN-SENTINEL


Thursday, October 7, 1999



Broward jurors with the job of deciding if a Coral Springs woman cared for her sick daughter or made her ill, quickly appeared to be struggling with that decision.

Just 90 minutes after they began deliberating late Wednesday, the six jurors asked if they could break for the day. Then a male juror asked the judge about the maximum length of time jurors should deliberate if they cannot reach a verdict.

"Clearly they're having trouble. That was the question from the gentleman in the back, they're having trouble," Broward Circuit Judge Victor Tobin told attorneys waiting in his courtroom.

He sent the jurors home for the evening after telling them it was too early to worry about that.

The three female and three male jurors will continue their deliberations this morning.

Kathy Bush, 42, is charged with aggravated child abuse and fraud. Prosecutors say she fabricated illnesses in her now 12-year-old daughter Jennifer and caused the child to undergo unnecessary pain and suffering.

As she listened to closing arguments from the defense and prosecution, Bush occasionally wiped tears from her eyes and looked down at photographs of her daughter. Around her neck she wears a gold necklace with three figures representing her sons, Jason and Matthew, and her daughter, who was taken from the family by the state in April 1996.

Neither Bush nor Jennifer was called as a witness in the trial, which began nearly three months ago.

Bush and her husband, Craig, said they would not comment until the jury reaches a verdict. The state is trying to terminate their parental rights to Jennifer in a separate court action that will follow the trial regardless of the outcome.

Matthew Bush passed his 17th birthday Wednesday in court supporting his mother.

"I'm kind of nervous, but I know we're going to win," Matthew said as he left the courtroom.

Earlier, Bush's attorney Robert Buschel told the jury the case against his client is based on "innuendo, gossip and supposition." He accused state officials of going after Bush and said nurses were gunning for her.

"They have destroyed this family and Kathy Bush wants to know why," Buschel said.

Bush's defense is that Jennifer had an intestinal disorder and suffered from unusual symptoms. Some of the doctors who testified on Bush's behalf said they saw objective test results that showed something was wrong with Jennifer's intestines that could not have been caused by her mother.

Jennifer's former gastroenterologist, Dr. Mario Tano, said Bush would have to been Houdini to fool all of the doctors.

"You would have to believe [Bush] outsmarted board-certified doctors," Buschel said.

The case is based on circumstantial evidence that prosecutors say all points to Bush abusing her child. They called two experts on child abuse and other doctors who said they believe Jennifer was never seriously ill except for when her mother caused the illness.

But Buschel compared the trial to a game of Clue where, he said, prosecutors failed to prove beyond a reasonable doubt who did what. He said every dime of the money Bush is accused of defrauding went directly to hospitals or home nursing agencies and none of it went to her.

Buschel ridiculed the prosecution's investigation, reminding jurors about an embarrassing mixup earlier in the case: the State Attorney's Office mistakenly put the medical records of the late baseball Hall of Famer Joe DiMaggio's records in evidence. The records were removed in front of the jury.

Buschel also argued that Bush could not be tied to a number of the suspicious incidents and overdoses of seizure medication that prosecutors say Jennifer endured. After Jennifer was taken from her family, Buschel said, she was given a potentially fatal overdose of a painkiller in a Cincinnati hospital.

"Kathy Bush wasn't even in the state," Buschel said.

The defense also attacked many of the witnesses who testified against Bush.

One of the nurses said she peeped through a closed curtain at Coral Springs Medical Center when she heard Jennifer, who was 3 at the time, yelling "No, mommy, no." She said she saw Bush putting something in Jennifer's mouth.

But on cross-examination, the nurse said Bush could have been brushing her daughter's teeth.

In the state's final argument, prosecutor Bob Nichols told jurors that Bush harmed her child under an unusual syndrome known as Munchausen by Proxy.

Nichols rejected the idea that the case was a conspiracy against Bush dreamed up by nurses, doctors and state officials in various agencies.

"Is there evidence of a conspiracy? No," Nichols said.

He said that strange incidents seemed to follow Bush around from hospital to hospital -- from Coral Springs to Hollywood, Miami and even to Tennessee.

"The only person who has been proven to have given false statements to medical personnel is Kathy Bush," Nichols said, turning to point at Bush.

Nichols poked fun at the defense's suggestion that Jennifer suffered from various unusual symptoms, repeating testimony from the prosecution's medical experts who said the girl has been perfectly healthy since she was taken from her family.

"Now is the time to hold Mrs. Bush responsible for her actions, for all of this," Nichols said. "There was no reason for this girl to suffer through her life."

Paula McMahon can be reached at or

Copyright 1999, SUN-SENTINEL

Oct. 7, 1999

Bush found guilty of aggravated child abuse

By PAULA McMAHON Staff Writer

The first noise in the courtroom after the jury found Kathy Bush guilty of aggravated child abuse was the sound of her 17-year-old son Matthew sobbing. Bush, 42, sat perfectly still for a moment as her husband, Craig, swallowed hard in the row behind her. Then the court deputy put Bush in handcuffs and she began to cry. As the court clerk read out the second verdict that Bush was also guilty of organized fraud, Matthew's sobs seemed to fill the room. Craig Bush tried to comfort his youngest son as tears rolled down his own face. "I want to see my mom," Matthew cried out as his mother was led out of the courtroom to be fingerprinted and stripped of her personal belongings before being taken to jail. "That's my mom," he yelled. "I want Jason (his older brother) here."

The six-member Broward jury took less than seven hours to find Bush guilty of the two charges. According to sentencing guidelines, she could face anything from probation to 45 years in prison. The conviction will be appealed, said Robert Buschel, Bush's defense lawyer. "The scarlet letter of child abuse was too much. It's a very emotional issue," Buschel said. "Perhaps the case was a little too emotional for the jury. Kathy Bush was convicted based on fear, emotions and headlines." Jurors found that Kathy Bush caused unnecessary pain and suffering to her daughter Jennifer, now 12, by causing or exaggerating illnesses and symptoms in the child.

The case against Bush drew national interest partly because Jennifer and her mother got plenty of media attention over the years. That attention is what prosecutors said Bush was craving under the bizarre syndrome that played a minor role in the trial. The pretty little girl who bravely endured illness after illness was featured in numerous news stories and in a documentary that aired on the CBS show "48 Hours." Jennifer and her devoted mother went to the White House to help lobby for health insurance improvements and sports stars rallied to help the family.

The state child welfare agency took Jennifer from the Bush family's Coral Springs home on April 15, 1996, the same day criminal charges were filed against her mother. Jennifer remains in foster care. When prosecutors charged Bush, they said Jennifer was a victim of Munchausen by Proxy, a very unusual form of child abuse where experts say a parent makes up illnesses and causes symptoms in the child to get personal attention. But juror Steve Jordan said the jury didn't really discuss the controversial syndrome, which was only fleetingly mentioned on a few occasions during the trial. Jurors were convinced it was simply a case of child abuse, he said. "It was a very difficult decision, very emotional for all of us," Jordan said. "Many lives are going to be affected by the verdict and you want to examine the evidence very carefully."

Some of the six jurors were in tears and said they could not speak as they left the courthouse.
Although the case was based entirely on circumstantial evidence and expert witnesses, Jordan said he felt that prosecutors proved the charges. "It was just one thing on top of another. It was building block on top of building block," Jordan said. The jury did not accept that Bush was a victim of some kind of conspiracy by nurses to get back at her for criticizing them, he said. "One nurse, maybe two, but not all the nurses," Jordan said.

Prosecutors Bob Nichols, Dennis Nicewander and Bob Julian spent years gathering evidence against Bush that they said showed a pattern of abuse by her. After the verdict Nichols said he doesn't know why Bush harmed her child. "I try not to second-guess the people I prosecute or try to look at their motives If I knew that, I'd be a doctor," Nichols said.

Several nurses and doctors who treated Jennifer testified at trial that they came to suspect the girl's apparent intestinal, neurological and other health problems were caused by her mother. Nurses said the child frequently appeared to be fine for hours on end when she was in the hospital but would become ill when her mother visited. Prosecutors said Bush gave potentially toxic doses of an anti-seizure medicine to make Jennifer ill, then lied to doctors about what was causing the little girl's sickness.

They also said Bush deliberately caused potentially fatal infections in the child, tampered with medical equipment to make her sick and repeatedly exaggerated Jennifer's symptoms to medical personnel. Some of the most compelling evidence against Bush was that the strange symptoms, infections and other unusual events seemed to follow Jennifer and her mother from hospital to hospital in Coral Springs, Hollywood, Miami and Tennessee.

Two child-abuse experts who testified for the prosecution also said it was no coincidence that Jennifer's health improved dramatically once she was taken from her family. In the 3 years since then, she has only had a few colds and broke a limb while playing sports. Buschel, Bush's attorney, mounted a combative defense that accused the state of targeting Bush because she irked nurses and had criticized the state's level of assistance to families with chronically ill children.

The jury never heard from Bush or Jennifer during the trial. Neither side called them as witnesses. But Jennifer's eldest brother, Jason, a Marine, told jurors his mother never abused Jennifer and pushed her to live life to the fullest despite her sickness. Jennifer went horseback-riding, attended dance classes and went to school as frequently as her illness permitted, he said. He could not be in court Thursday because of his Marine service.

During weeks of testimony over the past three months, Buschel argued that nobody saw Bush do anything to Jennifer that could be construed as child abuse. He called doctors and nurses who said Jennifer had genuine health problems that were identified by objective scientific tests. Among the possible issues for Bush's expected appeal is the fact that the jury was not allowed to see all of the 33,000 pages of Jennifer's medical records that were entered into evidence. Broward Circuit Judge Victor Tobin said because there were inadmissible items in the nine file boxes that could taint the jury's decision, only a portion of the evidence could be given to jurors to examine themselves.

Buschel also was not permitted to bring out testimony he wanted the jury to hear from the family therapist who treated Jennifer and her family. And testimony was barred from a woman who said the same nurse who accused Bush of harming her daughter also accused her of abusing her child under the rare Munchausen by Proxy Syndrome. Buschel said that child suffered from the same intestinal disorder that Jennifer had. Sentencing guidelines indicate Bush could face about five years in prison. But Tobin will have discretion to sentence her to considerably more or less next month.

Bush is being held in the Broward County Jail on no bail pending a bond hearing Tuesday. The criminal conviction may bolster the state's effort to terminate the Bushes' parental rights to Jennifer. That action has yet to be heard in dependency court. As Craig Bush left the courthouse Thursday, he insisted his wife is innocent. His voice breaking with emotion, he said he wants to see his daughter, who he is only allowed  to visit when a state psychologist says it is "therapeutically appropriate." "I haven't seen my daughter since May. Since May," he said. "I haven't been accused of anything."

Staff Writer John Holland contributed to this report.
Paula McMahon can be reached at or 954-356-4533.

Oct. 8, 1999

Bush family apart, but spirit intact

The prosecutors who won Kathy Bush's conviction on child abuse and fraud charges say they saved her daughter Jennifer's life. But even the men who spent more than three years gathering evidence against Bush say their hearts are touched by the plight of her broken family. "I certainly have great sorrow for the family and consider them the secondary victims of this whole tragedy," said Bob Nichols, one of the prosecutors.

Bush, 42, was convicted on Thursday in a heartbreaking courtroom scene that left the Coral Springs woman and her family -- as well as some of the jurors who found her guilty -- in tears.

On Friday, Bush was in jail, Jennifer was still in foster care and Bush's husband, Craig, was wondering how he can salvage his family. The state is trying to sever Craig and Kathy Bush's parental rights to Jennifer.

"We're going to see it through and get both of our girls back home," Craig Bush said of his wife and daughter. Despite his optimism, legal experts say the prospects of fully reuniting the family any time soon are slim. The burden of proof is much lower to terminate parents' legal rights to their children than it is to get a criminal conviction. In a voice half angry and half sorrowful, Craig Bush defended his wife and spoke about how Jennifer's removal from the family has affected him, his wife of 23 years and their two older sons, Jason, 20, and Matthew, 17.

In the 3 years since she was "swept away" by the state on April 15, 1996, Craig Bush said Jennifer has been missed at every family event, big or small. She wasn't there for Jason's high school graduation, his prom or when he became a Marine. She wasn't there when Matthew completed his training and became a Fire Explorer in Coral Springs.

"When Matthew makes new friends, he goes through, 'Do I tell them? Do I not tell them? Do they know already?'" Craig Bush said. "That bubble, that balloon of pressure, gets tighter every day."

The last time Jennifer's parents saw her was May 21, the day before her 12th birthday. They are allowed to visit her only when a state psychologist permits it. The emotional toll has been heavy and so has the financial one. Craig Bush lost his job as a car dealer in 1996. He moved to a position as a pest control salesman with more flexible hours but lower pay.

The family has filed for bankruptcy, and the Coral Springs home where they have lived for 15 years is in foreclosure. Their attorneys for the criminal and parental rights cases are all court-appointed.

Still, Craig Bush said his family's spirit is intact, even if they are not together. "When the bomb fell (on Thursday), we were all surprised because Kathy is not a child abuser," he said. "To survive this, what does that tell you about our family? We have another hurdle to jump over and I'll get my girls home."

But there is more than one hurdle to jump. On Tuesday, Bush's attorney, Robert Buschel, will ask Broward Circuit Judge Victor Tobin to release Bush on bail while her criminal conviction is appealed. Bush is facing a sentence of anything from probation to 45 years in prison.

She also still faces a welfare fraud charge accusing her of concealing family assets that could have made the family ineligible for Medicaid. Her fraud conviction on Thursday was for causing Medicaid and the hospitals to pay for unnecessary procedures and care for Jennifer.

Perhaps most importantly for the whole family, Craig and Kathy Bush must fight to retain their parental rights to Jennifer in yet another court case that will unfold in the next several months.

Buschel said Craig Bush is in an impossible position. "When his wife comes home, his chances to have his daughter come back drastically reduce. Why? Because the state is of the opinion that mom is a detriment, a harmful, evil person," Buschel said. "They're wrong."

Prosecutor Nichols said he firmly believes that Kathy Bush abused Jennifer by making up and causing illnesses in the girl numerous times in the first eight years of her life.   Nichols said Bush was a highly sophisticated abuser who hid her actions from the rest of the family, and he hopes that she will get psychiatric help.

But despite his sympathy for the other members of the Bush family, Nichols said he thinks Jennifer should stay with her foster family, where he says she is healthy, happy and living a normal life.

Through remarks made in court by her legal guardian, Jennifer has made it clear she does not want media attention and is embarrassed by the very public discussion of her past medical problems. The prosecution and defense both opted not to call her as a witness in the trial because of the traumatic position it would have put her in. Prosecutors said her young age at the time of the abuse was also a factor in their decision.

"I have no doubt she loves her father and brothers, but I think she is afraid of being sick again," Nichols said. "The thing that strikes you when you talk to her is it's almost like she's celebrating her health. She's doing all these things she could never do before and it's like a celebration of health. She's like a blind person seeing for the first time."

But records from the Cincinnati hospital where Jennifer was taken when she was removed from her family in 1996 say that nurses comforted the 8-year-old girl when she cried out for her mother in the night.

Fearful that anything he says could affect his chances of taking his daughter home, Craig Bush would say only one thing about Jennifer: "When we go see her, she sits in our laps, she hugs us and tells us she loves us."

Paula McMahon can be reached at 954-356-4533.






(and request for evidentiary hearing)

Kathleen Bush by and through her undersigned counsel, requests that this Court exclude any testimony, opinion, or other evidence that suggests: 1) Mrs. Bush meets a "profile" of a person who is compelled to hurt her child in order to gain attention for herself; 2) Jennifer Bush meets a "profile" of a child who has been abused by a caretaker; 3) Jennifer Bush is a child that suffers from a form of child abuse in which the adult caretaker either lied about or lied and did some act that falsely supported a belief that Jennifer Bush had a medical condition which she did not have; 4) Mrs. Bush suffers from a psychological abnormality that compelled her to abuse her child; or, 5) mention the term "Munchausen Syndrome By Proxy" (Meadow’s Syndrome, Polle's syndrome, Pediatric Falsification Condition) pursuant to Florida Statute Sections 90.101(l)(a), 90.401, 90.402, 90.403, 90.404(1), 90.404(2), 90.702, 90.703 (1999), the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Florida Constitution. Furthermore, Mrs. Bush objects to the admission of this testimony and evidence pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923.), and on the ground that it calls for an opinion on the ultimate issue in the case,. This matter requires an evidentiary hearing regarding the admissibility of profile evidence. See Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995).

"Frankly I don't have to prove Munchausen by Proxy, All I have to do Is prove Mrs. Bush did one or more acts that caused unnecessary pain or suffering to the child."

(Assistant State Attorney, Dennis Nicewander, as stated in, Depo. Bill Mossman, Aug. 21, 1996 p.142).


The defense agrees with Mr. Nicewander's above statement however, based upon discovery in the above entitled matter, Mrs. Bush expects the State of Florida will attempt to introduce expert testimony and other evidence about Munchausen Syndrome By Proxy, to the jury.

We are compelled to state the obvious: This is a child abuse case. The State of Florida cannot prove that Mrs. Bush did any act, by word or deed, which constitutes an act of child abuse. In order to fill in gaping holes in its case, the State will try and have "experts" postulate about profiles. Not only will experts be debating whether Mrs. Bush meets any number of state labeled profiles, but what is the profile. and what is Munchausen Syndrome By Proxy.1 If the State were able to prove its case without Munchausen type testimony, it would. Since the State has no case without the Munchausen jargon, it is forced to concoct a witch’s brew of voodoo psychology in order to explain the lack of evidence. The debate about the theory will push the focus away from the only issue in this case - was child abuse proven? A review of such profiling evidence of Munchausen Syndrome By Proxy will reveal its infirmities.

Munchausen Syndrome By Proxy is a recent, and controversial attempt to design a profile of a child abuser, to support a conclusion that a child care-giver is a child abuser. The theory of Munchausen Syndrome By Proxy is not included in the standard diagnostic statistics manual ("DSM- IV"), relied upon by the psychiatric/psychological community. The theory has not been tested for its validity, and conclusions from peer review lack consensus and acceptability. The potential rate of error for the diagnosis is unknown, and it has led to false accusations with devastating consequences.

Even if this court finds that opinions about Munchausen Syndrome By Proxy are reliable and relevant, it remains unfairly prejudicial. It would require exclusion because any probative value the profile may have is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and the potential of this evidence to mislead the jurors in this case. In fact, Munchausen Syndrome By Proxy is nothing but improper propensity evidence, based on supposition, and unscientific profiles.

This Court should not lose sight of the only question in this case: Did Kathy Bush commit child abuse? The only relevant inquiry is: was there an act of child abuse or not. Vague references to patterns of behavior in the hopes of proving only one count of child abuse continues to be a multiplicity (double jeopardy) violation, which remains unfair to Mrs. Bush, in her efforts to prepare and present a defense at trial. The court should exclude testimony about this unsubstantiated "syndrome dujour."

No Evidence Against Mrs. Bush

Whatever Munchausen Syndrome By Proxy is, Mrs. Bush does not have it.2 No psychologist, psychiatrist, or mental health expert who has ever interviewed Mrs. Bush, has concluded she suffers from Munchausen Syndrome By Proxy. The State's own psychologist, Dr. Bill Mossman hired, by the Department of Children mid Families, and who works for the State continually, stated that Mrs. Bush is an overprotective mother, not a person with Munchausen Syndrome By Proxy. (Generally, Dep. Dr. Mossman, In re Jennifer Bush, July 17, 1996, Aug.

Q: Did you at any point in time in that - In any presentation go through the Department and tell them or tell the Department or any representatives from the Department that you did not think that this was a Munchausen Syndrome By Proxy case?

A: I would qualify the answer by saying by and to the intent of what I did. (Dep. Mossman, p.68),

Q: Well who agreed with you, who disagreed what this was or was not a Munchausen Syndrome by Proxy case? Was it a split opinion from what you could see?

A: That was never put of the process. I'm the clinician, I'm the one that's licensed to diagnose the other folks aren't. I mean nobody is going to sit in the meeting and say to me, well I disagree with your diagnosis. (Dep. Mossman, p.70).

Again, the State needs to present the pseudo-science to the jury, in an attempt to have sufficient evidence to avoid a judgment of acquittal.

A: ... [B]ut I think the State Attorney’s case was based upon the Munchausen by proxy theory was going to be the foundation of the criminal action on child abuse and neglect and I said that's putting the cart before the horse, that you., first of all, look to see what the extent of injury and harm is.

I had a lot of discussion about that, that from my point of view Mrs. Bush does not have Munchausen by Proxy and I think very clearly doesn’t, and that if a case is based upon some theory that is going to be extremely easy to attack, then it's probably not going to work out. Probably going to go up in smoke. (Dep. Mossman, Aug. 21, 1996 p.89).

In spite of the opinion, by the State's own expert, the State of Florida removed Jennifer Bush from her family's care, against Dr. Mossman's advice.

A: It’s obviously and it was a very important issue even from my point of view in terms of what I'm seeing, looking, observing evaluating do I believe that the child, any child is in eminent risk and danger and needs to be immediately removed.

Q: Do you recall seeing anything that [Kathy Bush] had intentionally caused her child to become medically or physically ill?

A: In terms of medical and physical illness, no, I did not. (Depo. Mossman, Aug. 21, 1996 p. 51).3

Q: And was it your opinion that she needed to be immediately removed?

A: At that juncture in time my opinion was no. There were alternatives available that could be exercised and would mitigate against immediate removal. (Dep.Mossman, July l7, 1996 p. 72).4

However, the State's bases it case, in part, on the theory that Jennifer Bush could only eat solid food only after removal from her family’s care. Dr. Mossman also recognized that Jennifer Bush could and did eat "pizza and potato chips" when he visited the Bush family home. (Dep, Mossman, Aug. 21 p 1996 p.84). An HRS doctor and high ranking supervisor on this case also agreed. "There’s an indication that [Jennifer] is eating. . ." (Dr. Jay Witworth, medical director of the Child Protection Team State of Florida TPR Hearing, Apr. 16,1996 p. 22).

Q: And a review of the records indicate that she is taking some nourishment in a normal fashion through her mouth.

A: That's correct.

(Dr. Jay Witworth, Hearing, Apr. 16,1996 p, 24).

Over four months before Jennifer Bush was forcibly removed from her parents on January 8, 1996, the prosecutor in the criminal case,

Assistant state Attorney Dennis Nicewander wrote a letter to State witness, Dr. Randall Alexander, and stated:

Jennifer had been admitted to the hospital approximately eighteen times in the eighteen months prior to our notifying Mrs. Bush about our investigation. Since that time, Jennifer has only been back to the hospital on one occasion for a minor problem. Do you see anything from the material provided which could possibly explain Jennifer’s sudden improvement in health? Dr. Birken discussed a surgical procedure in his statement which involved the child's intestines. Could this procedure explain her drastic Improvement? (emphasis added).

Dr. Gary Birken, Jennifer Bush's surgeon answered the question with a "yes." (Sworn Statement Dr. Gary Birken July, 11, 1995, p. 19-21).

Suprisingly, the Assistant Attorney General prosecuting the termination of parental rights action, did not agree with the above information. Even though HRS/DCF doctors and investigators knew that Jennifer Bush was eating solid food for close to two years before removal from her family and sent to Cincinnati, the Attorney General chose to vilify Mrs. Bush in the media.

Since [Jennifer] has been at Cincinnati, Jennifer ‘seems to be eating everything they put in front of her.' Assistant Attorney Generall Robert Julian said. 'If she does well out of custody of her mother, if all of a sudden she can tolerate food, the implication is that something was wrong before the left the house.' (Mia. Herald, Jennifer’s Healthy Appetite Girl’s Improvement Bolsters Child Abuse Case, May 7, 1996) (emphasis added),

Julian, the attorney for HRS, said Kathy and Craig Bush are 'terrified' of Jennifer's getting well. (Mia. Hrld, Jennifer’s Healthy Appetite Girl's Imrovement Bolsters Child Abuse Case) 1A, May 7, 1996).

The above is but another example to demonstrate that Munchausen Syndrome By Proxy is hard to shake once a parent has been labeled. See Thomason, 83 F. 3d at 1373.

How to Evaluate the Admissibility of Munchausen Syndrome by Proxy Testimony

Munchausen Syndrome By Proxy is not fact evidence; rather, it represents expert testimony. Therefore, it is not automatically admissible without the court reviewing its admissibility. The Supreme Court recently rejected the distinction between "'scientific" knowledge and "technical" or "other specialized" knowledge to ensure that expert testimony is reliable. Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (Mar. 23, 1999). Regardless of the means the "experts" in Munchausen Syndrome By Proxy obtained their foundation for their expertise, though experience or scientific research, it is subject to the Frye5 test. See id.

First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. Second, the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is ‘sufficiently established to have gained general acceptance in a particular field in which it belongs.'

Ramirez, 651 So. 2d at 1167 (citations omitted).

"When a novel type of opinion is offered, the proffering party must demonstrate the requirements of scientific acceptance and reliability."6 Id. (emphasis added). The review of a Frye issue includes "an examination of three methods of proof: (1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions," E.I. Du Pont De Nemours & Co., Inc., v. Pine Island Farms, Inc., 24 Fla. L. Weekly D448, 450 (Fla. 3d DCA Feb. 26, 1999) (citations omitted).

The State of Florida cannot baldly assert that Munchausen Syndrome By Proxy is generally accepted because:

The burden is on the proponent of the evidence to prove the general acceptame of both the underlying scientific principle and the testing proceedures used to apply that principle to the facts of the case at hand. The trial judge has the sole responsibility to determine this question, Ramirez, 651 So. 2d at 1168, (emphais added).7

The Munchausen Syndrome By Proxy Theory is not Valid

What is Munchausen Syndrome By Proxy? 8

There is no clear definition of Munchausen Syndrome By Proxy. David B. Allison & Mark S. Roberts, DISORDERED MOTHER OR DISORDERED DIAGNOSIS - MUNCHAUSEN BY PROXY SYNDROME (The Atlantic Press 1998). "There is no consensus among doctors, child-care professionals, lawyers, and others about Munchausen Syndrome By Proxy, even about what to call it." Steve Levin, Post-Gazette Staff Writer, A CLOSE LOOK AT TWO CASES AFFECTED BY MUNCHAUSEN CHARGES, (Jan. 3, 1999).

As the expert for HRS testified:

Q: Do you agree with the concept that M.P.B. is a very rare scenario and shouldn't be thrown around?

A: I would agree with that very much. That is something I've said on more than one occasion.

Q: And I take it you said it to the deparment of H.R.S.?

A: I said more than that. I said, you know, in summary when somebody indicates that M.P.D. or M.B.D. is present, always ask them to define it. Ask them where they get their information, where they get their definition from because that is one area that there is if you told me there are ten different definitions I wouldn’t disagree with you.

Q: At any given time?

A: At any given time.

Q: Even as we sit here today?

A: That's true. But don't interpret that to mean that all five or 10 or

15 definitions have equal receptivity, equal recognition, equal validity, They don’t. They clearly don't. (Dep. Dr. Bill Mossman, HRS expert, Aug. 21, 1996 p. 81-62) (emphasis added).

"...[I]t remains unclear whether it is useful to label the parent, or the child as suffering from Munchausen Syndrome By Proxy. . . . [the authors] believe that the current lack of clarity in the use of the term Munchausen Syndrome By Proxy and the ambiguities in its definition lead to over-inclusiveness in its use, trivialization of abuse, and a lack of clarity about prognosis and long term management." Terrence Donald, Jon Jureidini, & Catherine D. DeAngelis, MD, 150 ARCHIVES OF PEDIATRICS & ADOLESCENT MED., MUNCHAUSEN SYNDROME BY PROXY: CHILD ABUSE IN THE MEDICAL SYSTEM, (July 1, 1996). "Consequently, from its first usage, there has been inconsistency about whether the term applies to the parent, the child, or both..... Confusion has been further compounded by the failure of much of the subsequent literature to make it explicit that Munchausen Syndrome By Proxy is a form of child abuse, or at least failure to apply the usual principles of child abuse management." Donald, 150 ARCHIVES OF PEDIATRICS & ADOLESCENT MED., 753 (July 1, 1996).9 Medical professionals have called for abandoning Munchausen Syndrome By Proxy diagnoses altogether, Doctor C.J. Morley, of the University of Cambridge School of Clinical Medicine, Department of Pediatrics, has suggested that the term be used with caution and preferably abandon[ed] in favor of giving an exact description of what has happened to the child" Practical Concerns About the Diagnosis of Munchausen Syndrome by Proxy, 72 ARCHIVES OF DISEASE IN CHILDHOOD 528 (1995). The State's expert, Dr. Randall Alexander. who the State plans to call as a witness, states that Munchausen Syndrome By Proxy is not even a syndrome ". . . because [Munchausen Syndrome By Proxy] is child abuse, so it's not like you have child abuse. There are the people who do it and the people who are the victims of it." (Testimony, United States v. Martinez SA-98-CR 158-OG (Feb. 10, 1999) p.21 )).

To have some understanding about what the term mom, the court should look to the history of the label.10

In 1977, British professor Roy Meadow wrote a brief article in the Lancet medical journal about two cases of child abuse. He used the phrase "Munchausen Syndrome By Proxy" in his discussion of the cases to try and explain the behavior of the mothers of the abused children. As Meadow described it, the mothers had created symptoms of illness all in an effort to discredit doctors treating the children, even though they were outwardly full of praise for the physicians and their staffs.

Steve Levin, POST-GAZETTE STAFF WRITER, (Jan. 3, 1999).

While there have been profiles to pick out an abuser or a victim, none have been scientifically substantiated.11 A definition of syndrome is "a grouping of symptoms and signs that recurrently appear temporarily together in many persons." Fischer & Mitchell, Is Munchausen Syndrome by Proxy Really a Syndrome? 72 Archives of Disease in Childhood 533 (1995). After reviewing the literature on Munchausen Syndrome By Proxy, they conclude that "[t]he situation with Munchausen Syndrome by Proxy/factitious illness by proxy is different, the victims do not have a specific collection of symptoms nor do the perpetrators." Id.. In other words, these doctors believe that, in view of the existing knowledge on Munchausen Syndrome By Proxy, it cannot be accurately diagnosed, either as a pediatric, or a psychiatric condition. See id.

The State will attempt to differentiate and completely separate psychological Munchausen Syndrome By Proxy, as a syndrome that points to a parent (most likely the mother) as a child abuser; and, pediatric Munchausen Syndrome By Proxy, as a syndrome that points to a child as a victim. Neither are distinctive from each other, nor would the testimony explain something to a jury that it can not understand on its own. Meaning, if a mother purposefully introduces an unprescribed substance to her child in order to cause harm, call it what is easy to understand by all - a poisoning. The State will either have to prove an act like poisoning occurred at the hand of Mrs. Bush, or the court will not allow the case to go to the jury for consideration.

Profiles In Munchausen Syndrome By Proxy are Invalid and Improper Character Evidence

Evidence that a defendant fits a certain offender profile is inadmissable as substantive evidence of guilt, United States v. Brito 136 F.3d 397,412 (5th Cir.) (cert. denied 119 S. Ct. 159 (1998) (profile of family drug organizations); United States v. Williams, 957 F.2d 1238,1241 (5th Cir. 1992) (drug courier profile); Hadden v. State, 690 So. 2d 573 (Fla. 1997) (holding child sexual abuse accommodation syndrome inadmissible profile evidence); Flanagan v. State, 625 So. 2d 827 (Fla. 1993) (child sex0 offender profile inadmissible).

The child sexual profile analogy is medically accurate also. Dr. Alexander stated: "Well, it's because it's a pattern of child abuse. In the same way that with physical abuse or sexual abuse we don't do testing of somebody to see if they did something; either they did it or they didn't do it."(Testimony, United States v. Martinez. p.22). (emphasis added). Since the child sexual profile analogy is the medically accurate analogy to how the medical community uses Munchausen Syndrome By Proxy, then Munchausen Syndrome By Proxy is an inadmissable profile.

In Flanagan the supreme court held that sex offender profile evidence did not meet the Frye test for admissibility of novel scientific evidence; and, such evidence is not otherwise admissible as background information. 625 So. 2d at 827. Flanagan dealt with profiling of a sex offender, as opposed to demonstrating that the child is a victim. The importance of Flanagan is that the sex offender profile may be accepted within the field of people that investigate child abuse, but the profile itself is not scientifically valid or reliable to where it is admissible under Frye. Id. at 828. A profile which attempts to point to a victim of child abuse is also inadmissible.

The flipside of the sex offender profile is the child sexual abuse accommodation syndrome ("CSAAS"). Like some proposed facet of Munchausen Syndrome By Proxy, CSAAS attempts to bolster the theory that the child is a victim of abuse. See. Hadden v. State. 690 So. 2d 573 (Florida. 1997). In Hadden, the State of Florida submitted the opinion of a mental health counselor that the victim in the case demonstrated the symptoms and diagnostic criteria typically associated with sexually abused children. Id. at 574.

The supreme court answered the certified question:

In view of the Supreme Court's holding in Townsend v. State, does Flanagan v. State, require application of the Frye Standard of Admissibility to testimony by a qualified psychologist that the alleged victim in a sexual abase case exhibits symptoms consistent with those of a child who has been sexually abused? Id.

The answer is yes. Frye applies. Id. "Therefore such opinions (which we will refer to as ‘syndrome testimony’) may not be used in a criminal prosecution for child abuse" Id. at 575.(emphasis added).

Like CSASS, Munchausen Syndrome By Proxy was not developed as a method of detecting abuse, that is it is not a diagnosis. Id. (citations omitted). "'I would just add that's why you cannot diagnose Munchausen Syndrome by Proxy. It's not a diagnosis, but you sure can diagnose the Axis I Factitious disorder and the presence or the absence of the Axis II histrionic, narcissistic, borderline antisocial." (Depo. Mossman, July 17, 1996 p.66) (emphasis added), One of the main reasons that CSAAS was rejected was because it was not a diagnostic tool; rather, it assumes abuse and then explains a child’s reaction to it. Hadden, 690 So. 2d at 579.

Even the State's experts "emphasize[] that there is NO particular psychological profile or checklist of symptoms that definitely confirm or exclude the diagnosis; there are common patterns, which should be examined on a case by case basis," Ayoub & Alexander,12 supra, p.9 Munchausen Syndrome By Proxy’s purpose does not help the physician diagnose and treat. Again, further information about the presentation of the abuse in the child must be understood.

That the Munchausen Syndrome or Munchausen Syndrome by Proxy does not attach to the child. That attaches to the adult that's participating and/or engaging in that. And there's no test that you can give to a child that I'm aware of in anyway that's going to tell you what the adult has. (Depo. Mossman, July 17, 1996 p.59).

Expert testimony about the nature, and characteristics of Munchausen Syndrome By Proxy and their applicability to Mrs. Bush is precisely the type of profile evidence which must be excluded, Since there is no way to test the child to determine whether the adult care-taker has Munchausen Syndrome By Proxy, it would again be unfairly prejudicial to introduce evidence about Munchausen Syndrome By Proxy,

Munchausen Syndrome By Proxy not Generally Accepted

While the term "Muuchausen's" has some meaning, a precise scientifically reliable definition does not exist, In pediatric medical parlance "Munchausen's" may mean 'the child is a Victim of abuse at the hand of a care-giver,' but the only significance the term has is the child is a victim of abuse. It is a term that does not have scientific precision and even less legal precision. It is so non-specific that a physician cannot respond in some meaningful way to the child's condition just by having the information that the child is a victim of Munchausen's. A physcian would know how to medically respond to a diagnosis of a broken arm. Munchausen's can mean so many different things to different health care providers that the term itself is meaningless.

No State witness will claim that there are guidelines for diagnosing Munchausen Syndrome By Proxy. Doctors Geoffrey C. Fisher and Ian Mitchell criticize Munchausen Syndrome By Proxy theory because "the victims do not have a specific collection of symptoms nor do the perpetrators." Fisher & Mitchell, Is Munchausen Syndrome by Proxy Really a Syndrome? 72 ARCHIVES OF DISEASE 1N CHILDHOOD 533 (1995), The absence of standards prompted these doctors to question the validity of an Munchausen Syndrome By Proxy diagnosis. The method of explaining the Munchausen Syndrome By Proxy diagnosis the doctor relies on a pattern of unexplained illness in the child. Unfortunately, no standards exist for a diagnosis when an undefined, unexplainable "pattern" is the hallmark of the diagnosis.

No Agreement in the Pertinent Community that Munchausen Syndrome By Proxy is an Accurate Method to Diagnose Parents or Children

Based on the testimony of defense expert, Dr. Eric Mart, and other testimony and literature, it will remain clear that Munchausen Syndrome By Proxy is at best a controversial diagnosis. Critics of Munchausen Syndrome By Proxy theory can prove Munchausen Syndrome By Proxy them is not generally accepted.13 Indeed, even among professionals who espouse Munchausen Syndrome By Proxy theory, there is no agreement about, or acceptance of, consistent diagnostic criteria for identifying Munchausen Syndrome By Proxy; neither is there agreement about the definition of Munchausen Syndrome By Proxy. Dr. Alexander will insist that Munchausen Syndrome By Proxy is an accepted pediatric diagnosis of the child. Other expert's like Dr. Patrick Holden,14 believe that Munchausen Syndrome By Proxy is a psychiatric diagnosis for the mother. Although Dr. Holden agrees that pediatrician "can make" the diagnosis, be believes that the "diagnosis is best made by ... [a] mental heath professional" with Munchausen Syndrome By Proxy experience.

Dr. Holden's opinion gives particular insight into the Munchausen Syndrome By Proxy controversy because he is a pediatrician and a psychiatrist. While Dr. Holden is a pediatrician, like Dr. Alexander. Dr. Holden views Munchausen Syndrome By Proxy primarily as a mental disorder afflicting the mother. Dr. Alexander disagrees. However, the Eighth Circuit agrees with Dr. Holden in Thomason v. SCAN, Volunteer Services, Inc., the court, as an aside, characterized Munchausen Syndrome By Proxy as a "rare psychological disorder." 85 F .3d 1365, 1368 (8th Cir. 1996).

In sum the testimony and evidence at best, shows that Munchausen Syndrome By Proxy theory is an evolving hypothesis that may be useful for professions in the health field. As the Supreme Court recognized, "there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory." Daubert, 509 U.S. at 596-97. The courts are not involved in an "exhaustive search for cosmic understanding of the phenomenon of parents who hurt their children," See id. at 597. Instead, they seek the particularized resolution of legal disputes - in this case, whether Mrs. Bush committed the crimes charged in the Information.

Prior Case Law on Munchausen Syndrome By Proxy Is Inconclusive

Few decisions have dealt with the admissibility of expert testimony about Munchausen Syndrome By Proxy in criminal cases, and the results have been mixed. Two state courts have excluded such evidence. State v. Lumbrera, 845 P.2d 609,169 (Kan, 1992); Commonwealth v. Robinson, 565 N.E. 1229, 1237-38 (Mass App. Ct. 1991). The unreliability of a Munchausen Syndrome By Proxy theory directs the same result in Mrs. Bush's case.

Two state courts have found Munchausen Syndrome By Proxy testimony admissible. Reid v. State, 964 S.W.2d 723, 728-29 (Tex. App. 1996); People v. Phillips,122 Cal. App. 3d 69, 84-87 (Cal. Ct, App. 1981). These cases are not binding precedent on this Court; moreover, both lack persuasive authority. The trial judges in both cases were misled. In Reid and Phillips, the trial judges were under the false impression that Munchausen Syndrome By Proxy was recognized by the DSM-IV. See Reid, 964 S. W.2d at 728 (quoting expert's testimony that "DSM-4 has recognized [Munchausen Syndrome By Proxy], its finally made that recognized entity" expert also testified that Munchausen Syndrome By Proxy is "universally accepted"); Phillips, 122 Cal. App. 3d at 86 & n.2 (noting that "more recent editions of [DSM] do list Munchausen syndrome as a category of mental illness."). Contrary to these conclusions, Munchausen Syndrome By Proxy is not recognized by the DSM-IV.

Evidence of Munchausen Syndrome By Proxy will not Assist the Jury

Munchausen Syndrome By Proxy theory is a recent development. As the literature shows, it remains controversial. Because of the novelty, the media attention it has received, and the emotional topic it covers - Munchausen Syndrome By Proxy as proof of mothers who harm their own children makes the evidence especially unfairly prejudicial. See Fed R. Evid. 403 (Adv. Comm. Notes (unfair prejudice is commonly based on emotion.)). Indeed, the Thomason, case shows how even trained professionals can be quickly carried away and led to overzealous intervention when Munchausen Syndrome By Proxy is even suggested. 83 F. 3d at 1373. In concluding that such a profile is inadmissible, the Florida Supreme court wrote, "[p]rofile testimony, on the other hand, by its nature necessarily relies on some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The jury will naturally assume that the scientific principles underlying the expert’s conclusion are valid." Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1994). Thus, this serious danger of unfair prejudice outweighs any relevance the controversial theory may offer.

In addition to this danger of prejudice, there, also exists the danger of confusion of the issues and misleading of the jury. The State of Florida has listed witnesses who may testify about Munchausen Syndrome By Proxy at trial, and that theory will be contested. This raises the danger that the jury will be confused about the relevant question for the jury's determination - did Kathy Bush abuse her child. Instead of focusing on whether Mrs. Bush committed the acts, caused the alleged harm, and had the requisite mental state, alleged in the State's vast charging instrument, the jury may instead wonder and drudge to determine if Mrs. Bush suffering from Munchausen Syndrome By Proxy, if it exists at all. This Court should, and has the authority to, exclude this evidence to avoid litigation on issues other than the guilt or innocence of the accused. Scheffer, 118 S. Ct. 1266, 1267 (military ban on polygraph evidence legitimately aimed at avoiding litigation over issues other than guilty or innocence of accused). Additionally, litigation on Munchausen Syndrome By Proxy may mislead the jury into believing that if Mrs. Bush meets the profile, then she must have committed the alleged acts. This would be tantamount to the State presenting evidence of a defendant's propensity to be a pathological liar in a perjury trial. It would be tantamount to the State presenting evidence of a defendant's propensity to be a kleptomaniac in a petit theft trial. While the State may be privy to a defendant's psychological profile, offering character evidence to prove propensity, is black letter law inadmissible. Florida, Stat. 90.404(l). The questions that remain are: is Mrs. Bush an abuser of her child? And was her child abused? Expert testimony about the types of people who perpetrate abuse or a motive as to why care-takers abuse is irrelevant and unfairly prejudice. The State needs to present its case, and the jury can decide whether the alleged conduct is abuse with the use of its own common sense.

WHEREFORE the Court should order the State of Florida not to present any evidence, testimony, or refer to any form of "Munchausen Syndrome By Proxy." Furthermore, as a matter of fairness, to avoid sandbaging the defense, and to have a complete understanding of the theory, the Court should order the State of Florida to provide a written response on its position before an evidentiary hearing.

I HEREBY CERTIFY that a copy of the forgoing to was sent to the Office of the State Attorney, Robert Nichols, on this 24th day of May, 1999.

Respectfully submitted,
213 StE, 8th Street
Ft. Lauderdale, FL 33160


Robert C. Bushcel, 0063436


1 "Experts" cannot even agree on a name for this theory. Factitious disorder by proxy, Munchausen by Proxy, Meadow's Syndrome, or Polle’s syndrome are other names for Munchausen Syndrome By Proxy. Catherine C. Ayoub, Ed.D., Randell Alexander, MD, PhD. 11 THE APSAC ADVISOR, DEFINITIONAL ISSUES IN MUNCHAUSEN BY PROXY, (1998).

2 There was several documented examples of false accusations of Munchausen Syndrome By Proxy. THE LANCET, Spying on Mothers, (Je. 4, 1994); Steve Levin, Post-gazette Staff Writer, A CLOSE LOOK AT TWO CASES AFFECTED BY MUNCHAUSEN CHARGES (Jan. 3, 1999). Steve Levin, Parental Illness or Child Abuse? PITTSBURGH POST-GAZETTE, (Jan 3, 1999); Steve Levin, Syndrome Diagnosises Spark Parental Lawsuits, They Challenge Doctors on Munchausen Findings, PITTSBURGH POST-GAZETTE, Jan. 4, 1999.

3 "Because I don’t know a single parent who orders medication. I don’t know a single parent who orders surgery." (Dep. Mossman, Aug. 21, 1996 p. 56). "I don't think there is any way she can usurp the advice of a physician." (Dep,Mossman, Aug. 21, 1996 p. 58).

4 Jennifer Bush was removed from her family’s care on April 15, 1996.

5 Frye v. United States, 293 F. 1013 (D.C. 1923).

6 The Daubert court recognized that when using the Frye analysis the trial judge has a duty to ensure the evidence sought to be admitted is relevant and reliable. 113 S. Ct. at 2795.

7 The most recent claim about whether a Frye analysis should apply to an expert testimony is Florida Power & Light v. Tursi 1999 WL 174207 (Fla. 4th DCA Mar. 31, 1999). The treating opthamologist’s testimony was based on fact evidence only and did not rely on a novel scientific principle or test which require a Frye analysis. Id. at *2.

8 Munchausen syndrome is not Munchausen Syndrome By Proxy. Tarrence Donald, Jon Jurendini, Catherine D. DeAngelis, MD, 150 ARCHIVES OF PEDIATRICS & ADOLESCENTS MBD., MUNCHAUSEN SYNDROME BY PROXY. CHILD ABUSE IN THE MEDICAL SYSTEM, (July 1, 1996). "Munchausen syndrome is a condition manifest by persons feigning or inducing illness in themselves for no other apparent gain than adopting the sick role and thus exposing themselves to painful and sometimes damaging and disfiguring medical procedures." Id.

9 Another State expert Robert Kinscherff Ph.D. has even suggested that Munchausen Syndrome By Proxy is not a threshold evaluation, rather, there is a continuum regarding severity of Munchausen Syndrome By Proxy in a child. Kinsscherff & Richard Famularo, M.D. Extreme Munchausen Symdrome by Proxy.- The case for Termination of Parental Rights, Juvenile & family Court Journal, p. 41 (1991).

10 "A syndrome is basically just a listing and/or accumulation of various symptoms that have no diagnostic utility." (Depo. Dr. Bill Mossman, July 17, 1996, p. 49).

11 See section of this memorandum discussing profile, infra. for discussion of exclusion of drug courier profile, sex offender profile, child sexual accommodation syndrome evidence.

12 Based on his testimony in in the Martinez case, Dr. Alaxender claims that a profile of Munchausen Syndome By Proxy mothers is not used make the Munchausen By Proxy diagnosis. United States v. Martinez, SA-98-CR-158-OG (Feb. 10, 1999), Yet, Dr. Alexander teaches the behavioral profile of Munchausen Syndrome By Proxy mothers in his lectures. See also Randall Alexander, Wilbur Smith, & Richard Stevenson, Serial Munchawen Syndrome By Proxy.

PEDIATRICS, p.581 (Oct. 1990) (article written about maternal psychopathology of Munchausen Syndrome By Proxy mothers). Furthermore, Dr. Alexander uses the term Munchausen Syndrome By Proxy, but advocates for a new label: "Pediatric Condition Falsification." This theory is less tested, and less reliable.

13 In Reid v. State the court held that Munchausen Syndrome By Proxy was generally recognized and accepted in the medical community because witnesses inaccurately informed the court that Munchausen Syndrome By Proxy was "universally accepted," and had "finally made" the DSM-IV. 964 S.W.2d 732, 728-29 (1998). It did not.

14 Dr. Holden testified in a related dependency matter in the Martinez case in Texas. An exhibit of Holdcn's relevant testirnony is attached in the appendix. In re Marriage of David Martinez and Cynthia Martinez 98-CI-00099 (Mar. 2,8.1995).

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