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Thursday, December 28, 1995 1995: IT WAS HER BEST YEAR YET
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." 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 By TAMIKA SIMMONS Staff Writer Click here to see: Kathy's motion Tuesday, August 31, 1999 MOM TO MAKE HER CASE IN ABUSE TRIAL
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. Thursday, September 2, 1999
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 Thursday, September 30, 1999 Nurse Backs Mom In Abuse Trial By ARDY FRIEDBERG Staff Writer
Thursday, October 7, 1999 JURY 'HAVING TROUBLE' IN CHILD-ABUSE CASE By PAULA McMAHON STAFF WRITER Oct. 7, 1999 Bush found guilty of aggravated child abuse
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. 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 ½ 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. 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 3½ 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.
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DEFENDANT’S MOTION IN
LIMINE B: 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).
Introduction 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.
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.
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).
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:
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.
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.
"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 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:
"...[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 )).
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:
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.
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, By:________________________ Robert C. Bushcel, 0063436 References 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). |
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