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CNN Burden of Proof

Colorado Therapist Stands Trial; Decision Reached on Michael Skakel Trial

Aired April 20, 2001 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: A controversial therapy session ends the life of a 10-year-old adopted girl. Now, a Colorado therapist stands trial.

(BEGIN VIDEO CLIP)

REP. DEBBIE STAFFORD (R), COLORADO STATE ASSEMBLY: Candace Newmaker should not have died. Candace suffered. She was tortured and it was inappropriate.

(END VIDEO CLIP)

COSSACK: Plus, the fate of a murder trial for Michael Skakel is decided by a Connecticut judge more than 25 years after Martha Moxley was killed.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. It was a new age therapy technique that went terribly wrong. It's called rebirthing, the act of swaddling a child in blankets and reenacting their birth, hoping to bond them to a parent. Now, one year ago this week, 10- year-old Candace Newmaker suffocated during such treatment by a psychotherapist. She had been covered in the blankets from head to toe for 70 minutes as adults ignored her cries for help.

On trial in Golden, Colorado, 40-year-old Julie Ponder and 50- year-old Connell Watkins, the two therapists who were treating Candace. Now, they're charged with reckless child abuse resulting in death. The entire session was videotaped by the therapists. Prosecutors played the tape in court, prompting shock and tears from the jurors, as the therapists appear to be taunting the girl.

Candace can be heard saying she can't breathe, she has vomited and defecated in fear she will die.

Also to be tried this November, Jeane Newmaker, Candace's adopted mother, who brought her to the psychotherapist and was in the room for the first hour of the treatment and then watched the last 10 minutes on closed circuit television.

Joining us today from Denver, Colorado is Governor Bill Owens. He signed an anti-rebirthing bill this week. Here in Washington, Jeremy Spevick (ph), criminal defense attorney Ron Sullivan and adolescent psychoanalyst Michael Jasnow. In the back, Katherine Dunnigan (ph), Brett Joshpie (ph) and Joannie Jayjay (ph). Also joining us from Denver is former state prosecutor Colin Bresee.

Well, doctor, I want to go right to you. This is a, what's been described as a new age technique. As you know, the problem here was that this was a young girl who had, a young, the girl that died had come from a very bad environment and was adopted by her mother. She had been acting in a very strange, destructive manner. Her mother apparently had tried everything, taken her to other doctors, tried other treatments, and the girl was destructive and I mean literally out of control and apparently the mother then, following the advice of people that she thought knew what they were talking about, took her daughter for this rebirthing treatment.

What about this treatment? Is it just crazy? Is it, is there any validity to it? Was it something that could be right but just went wrong?

MICHAEL JASNOW, ADOLESCENT PSYCHOANALYST: I would say from my point of view, I'm not commenting on the mother, but really I would comment -- whose desire was to help the child. But my comments would be on what would be accepted care and from my point of view, and I'm also the head of the child and adolescent psychotherapy program at George Washington University's doctoral program in psychology, that something like rebirthing is just not a recognized method of treatment.

And really, as you've described the case, I can't imagine anything that would be worse for that child because one of the features of reactive attachment disorder, one of the definite, defining features is you're looking at a child where the adult world has failed in some way and certainly, again, I don't know this particular case so I'm not going to comment in that way, but you're looking where the needs of the child, the emotional needs and care have somehow been broken or disjointed and to wrap a child, put a child in a terrifying situation and then to disregard her overt pleas of terror would be not only a horrifying thing, but on the face of it exactly what you would not want to do with a child suffering from this disorder.

COSSACK: Colin, as a prosecutor in this case, this is a difficult case. But I suppose that you are going to always be faced, as a prosecutor, with the argument that, you know, there is nothing wrong with what we did. Perhaps in this case things happened that we didn't suspect would happen but the technique was there or the intent was there to try and help this situation.

M. COLIN BRESEE, FORMER STATE PROSECUTOR: Well, I think it's more than that. You know, today is the second anniversary of Columbine, as we know, and, you know, we criticize parents that are trying to do something and then we sue parents that, in essence, take a blind eye and don't try to do something. You know, rebirthing, and I'm, again, no medical expert. But as this doctor pointed out, he says it's not a traditional type practice, but yet so many non- traditional type practices are the only thing that seems to work when the traditional practices seem to fail.

And I think that's certainly an issue that needs to be addressed is why is it that these people are trying to actually do something to help this child to prevent maybe a future Columbine but yet here we are suing them, suing the mother, suing everybody. And, you know, there is going to be a criminal case against the mother brought up and in essence she kind of said I trust you people, make my daughter better.

COSSACK: Putting aside the case against the mother, which I will say perhaps may be a weaker case than the ones against the therapists, doctor, what about that argument, I mean the argument that comes in and says look, this may not have worked and perhaps this got away and I think there's other defenses that are saying that perhaps some medicine she was taking that may have caused her death. But nevertheless, the procedure in and of itself, we were, you know, it was fraught with good intention.

JASNOW: Well, good intentions are very nice, but of course people who offer services to the public are held to a certain standard of efficacy or at least a certain kind of context in which they're working. And from my point of view, speaking from my base, I would say that this rebirthing is, I did not say non-traditional, I said outside of the mainstream of care and treatment.

It would not be recognized by any of the bodies that I am aware of, the American Psychological Association, the American Psychoanalytic, the American Psychiatric, I think, as a standard of care.

COSSACK: Let me ask you a question.

JASNOW: Yes?

COSSACK: And I know that if you were on, if you were testifying in the prosecution, Ron Sullivan would ask you this question.

JASNOW: Yes?

COSSACK: If, as far as rebirthing, would you say, doctor, that it's an inherently dangerous procedure?

JASNOW: I would say, from my point of view, that it has, it simply operates -- I, if somebody came, if somebody suffers a stroke and they bring them to somebody who says, you know, I've got a terrible stroke but nobody can help me and they say well, we'll do some bleeding, we're going to really help. We think this will help. We wish you well. We're going to bleed you. The patient dies. Well, I think that's an equivalent.

These people may have had the best of intentions, but I would say based on, rebirthing doesn't have anything to do, as far as I can tell, with the mainstream understandings of psychology, psychiatry, as commonly accepted today, and I don't -- again, I'm not speaking directly about this case, but in a complex case like this, there would be many things that one would want to try and want to make sure were tried before one gave up hope of helping a child and a family.

COSSACK: All right, let's take a break. Up next, Candace's tragic death shocked the State of Colorado and prompted new legislation to protect children. Governor Bill Owens talks about Candace's Law when we come back. Don't go away.

(BEGIN LEGAL BRIEF)

Families of the victims in the Columbine massacre have agreed to a $2.5 million settlement of their lawsuits against the gunmen's parents and the providers of a gun.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: This week in Golden, Colorado, two therapists are on trial for the death of a girl who died while in their care. The girl suffocated during a rebirthing treatment in which she was swaddled from head to toe with blankets. The tragedy prompted Colorado to move quickly with new legislation to protect children Candace's Law is named after the victim, Candace Newmaker.

And joining us is the Governor of Colorado, Governor Bill Owens. Governor, tell us about Candace's Law.

GOV. BILL OWENS (R), COLORADO: Well, Candace's Law attempts to address this horrible situation by saying that from this day forward it's illegal in the State of Colorado to have this sort of therapy, to bundle a child up and have adults try to force this child to pressure herself out of this fictitious womb.

There are therapies which are very effective. This therapy is, on its very face, life threatening and it's a therapy that we've decided in Colorado shouldn't be allowed to be utilized because of the clear indication that it can cause death or serious injury.

COSSACK: Governor, some might argue with you that perhaps the state legislature should not be involved in medical treatment, that this is something that should be police department by the medical authorities, that perhaps this is a treatment whose time will come and this time it was just done in a poor manner. How would you answer that criticism?

OWENS: Well, I guess there would be two points I'd want to make. First of all, under Colorado law, there really isn't the oversight of therapy that you might have in other states. There are some areas where Colorado law is obviously weak. And secondly, reasonable men and women can come together and agree to disagree on some issues.

In this case, the data is clear. This is not an effective therapy and it's also life threatening. We don't any longer allow children to be taken up to the mountaintop and sacrificed in order to bring in a good crop the following year because that isn't reasonable. And I think that in this case similarly it's not reasonable to assume that by having 700 pounds of adults pressing on a child who's tightly wrapped up, that that's going to actually improve her outlook on life.

In this case, some people would feel that this caused her to die and I have to remind everyone that the trial is going on and everyone is innocent until proven guilty.

COSSACK: Governor, that sort of gets to the next question. When is this law to take effect and do you know what the penalties are for this?

OWENS: I do. The law took effect upon my signature, which was three days ago, and so in Colorado right now it is illegal to have this sort of rebirthing therapy. The penalties, first offense it's a misdemeanor and a fine. Second offense it's up to one year in jail and a larger fine.

We don't believe that anyone will ever have to be prosecuted under this law. We think that having the law in place is going to result in this rebirthing therapy no longer to be offered or utilized in the State of Colorado.

COSSACK: All right, our thanks to Governor Bill Owens for joining us.

OWENS: Thank you.

COSSACK: Thank you once again, Governor.

I want to go over to Ron Sullivan now for a moment. Ron, I'm going to hit you with the unpleasant task these defense lawyers always get of defending this situation, and I suggest to you that perhaps the defense is this is cutting edge and you guys, you law makers may be cutting off something that perhaps is, may turn out to be something worthwhile.

RONALD SULLIVAN, CRIMINAL DEFENSE ATTORNEY: Well, that's certainly got to be your starting point in the defense because the therapy itself strikes most as facially absurd and most people on the jury are going to think, you know, this is silly, what's going on with wrapping a kid up and grown persons pushing pillows on them and smothering them with a blanket? And the defense is going to have to, they're going to have to find an expert or someone to say that well, this is, this has some therapeutic value. It's not a kooky, new age sort of weird type of therapy, but it has some value.

If you can convince the jury that this, short of therapy, has some sort of therapeutic value but it just went awry in this particular case, then you can sort of move on to the more technical aspects of a defense in this case. And those would be, because the facts are pretty bad in this case, the defense would really have to carefully deconstruct the statute. The statute says to be guilty for child abuse in Colorado a person has to cause injury of a child or put a child in place of...

COSSACK: Ron, let me just interrupt you for a second. I've just been told there's some news in Connecticut. Let's go over to CNN's Debbie Feyerick in Connecticut with the Skakel trial -- Debbie, what's going on?

DEBORAH FEYERICK, CNN CORRESPONDENT: Well, Roger, Michael Skakel will be tried for the murder of Martha Moxley. His lawyers wanted to put on some witnesses to counter a lot of the testimony that we heard over the past few days, but the judge basically told them look, this is not a mini trial. This is a probable cause hearing. So save your witnesses for when we go to trial.

Michael Skakel today pleaded not guilty officially to the murder of Martha Moxley, all of this happening just within the last hour. The judge had decided that there was probable cause, that Skakel may have intentionally killed Martha Moxley. Probable cause, of course, meaning that it's got to be more evidence than just mere suspicion, but less evidence than to prove this beyond a reasonable doubt. It falls somewhere in between. The judge relied on several key pieces that we saw over the last two days, including a golf club which was found in the Skakel home that matches the murder weapon and also testimony of two former schoolmates of Michael Skakel's, the judge saying that admissions allegedly made by Michael Skakel both provide a motive and an account of surrounding circumstances.

We understand that Mrs. Moxley is going to be coming to the podium momentarily. But that's where we are right now. Michael Skakel going to trial. He has pleaded not guilty -- Roger?

COSSACK: Debbie, let me follow up on a question with you. Earlier today you reported that the judge had made his decision regarding the fact that Michael Skakel was going to go to trial and then you indicated that the defense was going to call witnesses. What, why was the defense going to call witnesses if the judge had already made up his mind?

FEYERICK: Because that's, procedurally, defense attorneys are allowed to say look...

COSSACK: Debbie, we're going to interrupt you for a second. Dorothy Moxley is, the mother, is present at the stand. We're going to let her talk to us now.

Go ahead, please, Mrs. Moxley.

DOROTHY MOXLEY, MOTHER OF MARTHA MOXLEY: There's a lot of effort and I have been so blessed with so many wonderful people helping me that, you know, I am, I'm overwhelmed right now. I think this is truly like a miracle that we have one, you know, we've advanced one more step. So I hope I give courage and hope to those other mothers out there who know nothing about what happened to their children. It's terrible to not know and now, you know, I'm getting one step closer. So, you know, I'm numb. I just feel, you know, very good, very good.

QUESTION: (OFF-MIKE)

MOXLEY: You know, I just sort of wipe him out. I don't hear, I mean I don't pay any attention. You know, I'm a very positive person. I believe all of us when we wake up in the morning, we can decide if we're going to have a good day or a bad day and you just have to have a lot of faith and courage and you just think, you know, it's going to be a good day and it will be so...

QUESTION: (OFF-MIKE)

MOXLEY: Oh, yes. I mean I've never lost hope and I have a very strong faith. So I think, you know, it all, it just all works. And I...

QUESTION: Do you see success in this trial, Mrs. Moxley?

MOXLEY: Well, you know, I've had all this wonderful help. How many mothers can say they've had someone like Len Levitt and Tim Dumas and Dominick Dunne and Mark Fuhrman and the -- like Frank Garr has been so good and so kind and so considerate. I mean they've all been. And the press. I'll tell you, you guys have been so good. I was just telling somebody, when this is all over, then I'm going to redecorate my house.

But until then, you know, my door is open and you come in and you rearrange the furniture and you, you know, put paper on this window and you block out that, you know, it's -- you've helped me so much I'm willing to let you just come in and rearrange the furniture, do whatever you want to, you know? You, the press has been wonderful. And I think you've been so honest, that, to me, is good.

So anyway, thank you so much.

QUESTION: Do you think you -- what about the success of the trial? What's your...

MOXLEY: Well, you know, we take it one time, one step at a time but I really, as I say, I have great faith in the state's attorneys office because, you know, they've done a wonderful job. And I don't think they'd be here today if they didn't feel as though they had a great case. So I'm really very pleased. Thank you so much, you know? We'll see you again. OK, bye.

COSSACK: All right, we've been listening the Martha Moxley's mother talking about the events of the court today.

Let's take a break and when we come back, we'll talk some more about the rebirthing incident in Colorado and we'll go back to our show. Stay with us.

(BEGIN Q&A)

Q: Why was a New Jersey man charged with aggravated assault and burglary Wednesday?

A: For allegedly burning down his town's municipal building. Police say he burned it down because he didn't want to appear in traffic court.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: We're back and we're talking about the tragic death in the rebirthing incident of Candace Newmaker. Doctor, I want to just give you one quick hypothetical. Years and years ago a man by the name of Lister (ph) came along and he told the people at that time, he said, you know, perhaps we should stop washing our hands with cobalt and start washing our hands with soap and water before we did surgery. And they said to him, the medical practitioners at the time said you know something? That's nuts. Why are you doing that? We really should do what we're doing. And then years later, of course, Lister turned out to be correct.

Isn't there always that problem in a situation when you have a cutting edge kind of technique that you are and that perhaps it went wrong this time but this is something that should be followed into...

JASNOW: No, because, you see, with Lister what he did is he set up studies. He was dealing with childbirth fever, child bed fever. And he demonstrated to his own satisfaction and to anybody else's rational satisfaction, that disinfecting one's self and the instruments was useful.

I don't know of any equivalent there, no.

COSSACK: So as a doctor you would say the difference here is that Lister was right and these guys are basically wrong?

JASNOW: No, the difference, no, the difference was Lister used a recognized scientific method and scientific clinical method. That made -- he could have been wrong, but he could demonstrate why there was efficacy in what he did.

COSSACK: All right, now let me switch gears a little bit and go with you, Ron, to the Moxley case in Connecticut. Are you in any way surprised that the witnesses that were supposed to be put on by the defense today didn't quite get put on? The judge has made his ruling and now we go forward with the trial?

SULLIVAN: I'm very surprised and quite frankly and I think it's an appealable order from the judge. Under the due process clause of the constitution, the defense absolutely has the right to try to rebut probable cause in one of these hearings. As a tactical matter, though, because probable cause is such a very, very low threshold, many defense attorneys tend not to put on evidence at this stage because it's so easy to make probable cause. And by putting on your own witnesses, you give the prosecution a chance to see your case.

COSSACK: All right, let me just interrupt and just tell our viewers that what we're really talking about in a probable cause hearing, the judge isn't deciding whether or not there's evidence beyond a reasonable doubt. There's, he's just merely deciding whether or not there's enough evidence for this case to go to trial, period, and for a jury to hear it.

SULLIVAN: That's right. Whether a crime probably happened and whether the accused probably committed it. That's essentially probable cause, very, very low standard.

COSSACK: More to come on this case.

That's all the time we have for our show. Thanks to our guests. Thank you for watching. It's free for all Friday on "TALKBACK LIVE" this afternoon. It was free for all today, too, for us. What's making headlines in your neighborhood? Send your e-mail to Bobbie Battista and tune in at 3:00 P.M. Eastern time.

What do an Atlanta strip club, professional athletes and the mob have in common? Well, they're embroiled in a case before a federal court. Join us Monday for that story and more on another edition of BURDEN OF PROOF. We'll see you then.

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