I'd been working on the Frank Fuster case with Arthur Cohen and Snowden contacted Arthur and me and asked us if we'd take a look at the record and the case and see if we could help.

The Fuster case, that was the famous Country --

Country Walk day care case in South Florida.... It was one of the landmark child abuse cases from the '80s. It became a template for other prosecutions in the country, and the Snowden case followed the Fuster case by a few weeks. So when the Snowdens called us and asked us to look at the record, we said that we would.

So you look at the record. You see there was a conviction, of course. As you looked at the record, many years after the conviction, what did you see?

You say manufacturing evidence. The prosecution said at the time, and the jury and the judge agreed, that in fact there was compelling evidence that Grant Snowden had committed these crimes. There was, for example, hard physical and medical evidence.

Well, there wasn't hard physical and medical evidence. What the jury said is what the jury should have said given what they saw. So you have to discount the jury because they were shown a false picture. I don't know that they could have seen through what the state put out there. The medical evidence in the Snowden case was a diagnosis of something called Gardnerella vaginitis, which is a condition that can be transmitted sexually as well as many other ways. The diagnosis was made through methods that aren't a diagnosis. The doctor found some moisture and redness on the little girl who was accusing Mr. Snowden. She looked at that under a microscope and pronounced that she had found Gardnerella vaginitis. That's not a test for Gardnerella. Everything I've ever read about this, the defense expert who was prepared to testify made it very clear that you can't diagnose this disease that way. But the jury never knew that. The jury was only permitted to hear that this doctor had diagnosed Gardnerella. In fact, this doctor had changed her testing right after she did this case because she didn't believe in that test that she used. She moved on to more reliable methods that she had used before this case. And the defense was never permitted to question her about why she had abandoned the unreliable method that she used to get the evidence for this case.

OK, but it wasn't just Gardnerella, it was also gonorrhea. One of the children, who in fact was a witness against Grant Snowden tested positive, did he not, for gonorrhea?

Well, again, he tested positive in the first test they gave him, but they didn't treat him. So, I don't know, it seems that they didn't believe that their first test was accurate. They tested him again, I guess using a more accurate test, and it was negative. Then they treated him. So, even the state didn't have confidence in their gonorrhea finding from the first test, and a confirmatory test found he didn't have it. So again, there's no evidence of gonorrhea in that trial that withstands any sort of scrutiny....

...You're a defense lawyer. What you are doing is attacking the state's case. You're looking for weaknesses and openings. Is there a finding of venereal disease that you would have left alone and said, "Well that seems convincing and compelling enough to me?"

Probably. I mean, if there had been a real test, if they had found a positive result and confirmed it with another test that was more reliable and that was also positive, that probably would have done it. The thing is, you can suspect that a child has gonorrhea and Dr. Hicks, who was the doctor in this case, talking about the Gardnerella, she says as a doctor, as soon as she sees something that she thinks if Gardnerella, she'll err on the side of caution and say OK, this is this condition. I'm going to treat it. And that's fine as a doctor. It's not going to hurt the child to get this treatment. But when you're accusing someone with this and you're going to convict them with it, you really need those follow-up tests. You cannot err on the side of a positive diagnosis.

But couldn't the tests that she conducted have been analyzed and examined later on to --

Well, they could have if she didn't destroy them... She threw out this microscope slide that she had the moisture on from the girl and I believe the positive gonorrhea test in the boy was destroyed as well. Before trial. Before any defense attorney could have gotten anywhere near it....

OK. That's the medical evidence. But there was also the testimony in the Snowden case of an expert, Dr. Miranda, who testified that children in his experience, he had interviewed scores and scores of children, and that they tell the truth. That children don't lie and that children in fact should be relied upon in their testimony about such an important and frightening issue.

Yeah, he testified about that. The issue in this case first of all, is not whether children are lying about this. It's whether suggestion and coercion supplanted their memories, implanted memories of abuse in them, and so when they were testifying, they were testifying to the truth as they knew it to be, but it was not the historically accurate truth. This whole notion that children cannot lie about abuse, there's no support for this finding and this conclusion that these people put out there. I mean, why can't they? There's no reason. It presumes that abuse is such a horrible thing that you couldn't lie about it. If you've never been abused, if you've never been subjected to something horrible, why couldn't you lie about it...? If they've never been abused, the memory has no physical presence in them. It's just words....

Wait a minute. The prosecutors had, not just one, but several children in the Snowden case testifying that Grant Snowden abused them.... Not just one child. Kids who, in some instances, didn't know one another. Why would they make that up?

Well, they all came through the same mill. They were all interviewed by the same person. The child who accused Mr. Snowden was interviewed by Laurie Braga, who was an investigator [who] worked with the Dade County State's Attorney's office at the time of these cases. Every single allegation that this child made against Mr. Snowden was first suggested to her by Laurie Braga in an interview. The child had told her mother, when her mother asked on two occasions, that nothing had ever happened at the Snowden house. That she'd never been abused by Mr. Snowden, nothing bad had ever happened to her there. The mother took the child to the State Attorney's office to be interviewed by Laurie Braga. Laurie Braga suggested to the child all sorts of sexual activity that might have happened to her. In the course of this interview, which the transcript runs some 66 pages or so, they get up to page 33 and the child has not bit into any of Laurie's suggestions. She won't take it, nothing happened to her, the worst thing about Mr. Snowden is that he used to turn off the television and not let her watch. After page 33 Braga starts turning on the pressure. She starts suggesting, did Grant put his penis in your mouth? Did something come out of it? You know, just keeps working little bits in increments. When the child says no, Braga says, well let's pretend. And then confuses pretend with reality. The child will pretend that Grant did something wrong, and then the next question, Braga will use the pretend statement as the factual predicate for the beginning of the next question. So, let's pretend Grant took your clothes off. OK, well pretend that. OK, so when Grant took your clothes off, then what happened? But taking the clothes off was pretend. So Braga would just fold this stuff, fold the fantasy into real questions. By the end of this, the child was agreeing with Braga.

Right after the Braga interview the child was then taken to have a rape exam at the Jackson Memorial Hospital rape trauma unit. So in the end of this interview, this child was an abused child. She had memories of being abused, she was treated as an abused child. She had a gynecological exam at the hospital. People now started questioning her about this. Her mother was now questioning her as an abused child. All the stuff that Braga got out of her was the truth to these people, and this child's status had changed from a normal little girl who had never been abused to an abuse victim. And that's how she was treated from then on.

So what you're saying is that Dr. Braga, acting on behalf of the prosecution, created of this child an abused child. Created an abused child.

Absolutely. And all three of the children who testified in the Snowden case had been interviewed by Laurie Braga. The very first child had also been suggestively, coercively strongly interviewed by his father and that comes out in the transcripts and other records of the case. A therapist who had treated that boy, who we call Greg in the briefs, testified that she felt that after treating him that she had to speak to the father to tell the father to stop making the boy say things he didn't want to say....

But you're telling me a story here, Mr. Rosenthal, about a series of adults -- parents, law enforcement officers, prosecutors, therapists, child therapists inventing from whole cloth narratives of the most wretched, awful, horrific sorts of abuse and planting them in the heads of these innocent children, four, five years old. Why in the world would they do that?

I think there are probably as many reasons as there are people in these cases. Laurie Braga and her husband Joseph Braga were making a career out of being able to ferret out accusations of abuse from children who had been abused but wouldn't say anything about it. They were building a reputation at the time. They got to be featured characters in a book and TV movie. Their efforts were not unrewarded. Their motivation may have been mixed with wanting to help children, with actually believing that children needed this help, and that there were children who weren't talking about abuse. But the effect of what they did was to take children, where there was no evidence of abuse, and have them talk about abuse. Once the prosecutors hear of this, once the prosecutors have kids coming into their office who are claiming to have been abused, they pick it up and run with it. It's a great case for a prosecutor in the mid-'80s....

But you could make the case, as the prosecutor in that case does, that the charges against Grant Snowden were not particular to just that trial that ultimately put him in prison. That in fact before that there had been accusations. An earlier trial that resulted in an acquittal. Then this trial. And to this day [the prosecutor] still believes in the righteousness of that case; he said "Look, it wasn't just these kids. We could have gotten two dozen. We had 50 children standing by that would have brought testimony against Grant Snowden."

Well, you run enough kids through Laurie Braga and you're going to have that many kids who are going to testify against Grant Snowden. It's not that hard to make young kids say what you want them to say. And believe what you want them to believe.

The same prosecutor, Mr. Markus, would say to that, "Wait a minute. I have kids. I can't brainwash my kids into doing their homework or cleaning their rooms."

Yeah, but that has to be one of the most ridiculous statements about this whole field of memory and these kind of cases that I've ever heard. This is not brainwashing kids to clean their room or getting an adult to stop smoking. This is not changing a pattern of behavior. This is convincing someone that something happened. There are kids up to a certain age that believe there is a Santa Claus. To them, the truth is, if you ask them what is the truth, Santa Claus exists. It's not historically accurate. It's not literally in the world, it's not accurate. But, to them, in their world, that is an accurate statement....

What was it about the time that would cause this massive suspension of critical thought, of disbelief on the part of so many people that everybody seemed so willing to believe?

I'm not sure what started it. I think that this is a great fear. At the time, there were more two-parent working households where kids were left at home. I think that there probably was some, maybe guilt, about leaving children in day care. Leaving children with strangers so that both parents could work. I think that, as I said, I think the prosecutors took these cases and ran with them, because they were career-making cases. And once the publicity starts to generate, from what I've heard of south Florida at the time, in the mid-'80s, the headlines and news reports were full of there being a child molester in every day care setting, and look out for your children, and something bad is going to happen to them when you leave them alone. And I think that starts to play on the people who see that on a daily basis....

Your approach in all of these cases is an interesting one. You don't come at it from having known the defendant and having looked in his eyes and decided; how have you decided on the innocence or guilt of, for example, Grant Snowden, personally?

I look at the record. I found no evidence that he did this. And tremendous state efforts to conjure up evidence. The gymnastics that the state investigators had to go through to produce evidence, they didn't find one bit of evidence in these cases. Every stitch that was used to convict Grant Snowden was created. And that's what I look at....

Dealing with a case that way, can you [come to] emotionally, viscerally, fundamentally believe in the innocence of a client?

Yeah. It's more the disingenuousness of the state.... I'm a pretty tough-on-crime guy. I believe in law and order, you know. I stand for good, not evil. And when I see the state doing what they do in these cases, that's where my rage builds. The arrogance that they go through this, how they'll take the constitution and toss it out the window so that we can get this guy, that's more important to me than who this client is.... I don't need to meet most of my clients. I like to put a face to the name at some point, but for me these cases are [in] what the state is doing and how the state is running over all of the protections that exist and that I believe in. I mean, if they got Frank Fuster, they get Grant Snowden, I'm next, or you're next....

By the time they tried Grant Snowden the second time, they'd learned some very valuable prosecutorial lessons?

Absolutely.

They'd learned them from where?

The Fuster case. Fuster was going on at the same time, I'm actually not sure of the exact trial dates, but Fuster probably finished before the second Snowden trial and hadn't been completed before the end of the first Snowden trial.

And these very methods had been, in fact, successful in conviction Frank Fuster?

Absolutely.

Do you believe that in that regard what happened in the court room in the Country Walk case directly affected what happened in the courtroom in Grant Snowden?

Yes, I think the prosecutors learned a lot. Prosecutors all over the country learned a lot from the Country Walk case in many respects, but I think one respect was using so many children and doing it in such an orderly fashion. Making sure that they're all on the same page, they've all been interviewed by the same interviewer, and the accusations are not going to spin totally out of control by having a different interviewer come in and talk to the kids. People were encouraged to bring their kids to the same person.

Have you ever thought, Mr. Rosenthal, about the fact that in wildly differing circumstances, different cities, different prosecutors, different parts of the country, literally in some cases divided by hundreds and thousands of miles, there are such striking similarities in these cases in the mid-1980s?

Yeah, and I think it points very strongly to the network of prosecutors and interviewers and the way they develop these cases. It is just very hard for me to believe that, especially in an area where we're talking about deviance. The sexual deviants in Anchorage are doing the same deviant things that people in Florida are doing... This is pre-Internet, even, this is the mid-'80s. How are these people communicating? I mean, is there a conference in Indianapolis? Where they're all coming to the middle of the country to discuss this? There's no way that this information is shared in such a way that everyone is doing the same thing to these kids all around the country.

So, what are you suggesting? That there was a conference of prosecutors?

Yeah. Absolutely. When you look at some of the people who testify in these cases for the defense, the prosecutors are so prepared to cross examine these guys, that they have every piece of testimony that these experts had ever uttered, every word that they'd ever uttered in a courtroom all there for cross examination. So, I'm a prosecutor cross examining an expert in Florida, and I have his testimony from New Jersey, and I have his testimony from Minnesota, and everywhere else. How does a prosecutor get that if they're not meeting? And there's nothing wrong with that. That's good law enforcement. You meet, you share the things that work. You share information. That's how it should work. But that explains why these kids are coming up with the same accusations all around the country.

It sounds like you're almost describing something like a child abuse industry?

I think that there was and probably still is a child abuse industry for prosecutors, for so-called child advocates, that was definitely there in the `80s, and it was sharing information, and it was conferences and lectures. The Bragas go out and lecture. There are other so-called researchers and experts who go out and lecture, and they're well paid for their efforts, and their lectures are well attended.

Let's go back to Snowden. You succeed, I guess, against some odds at getting the appeals court, the 11th Circuit, to agree to hear your appeal.... And your argument was what? You attacked what?

Well, my arguments really went to the guilt or innocence of Mr. Snowden. My briefs showed that there was no evidence against him. The evidence that was put out in front of the jury was created by the state. You had experts getting on the stand, telling the jury that children can not lie about abuse. Why not just go home at that point? Why vote...?

What [did the court decide]?

They decided that Dr. Miranda's testimony instructing the jury that children can not lie about abuse violated Mr. Snowden's due process rights. You can not invade the province of the jury, make the jury's decision for them. Telling them that these accusations must be true.

How had Dr. Miranda's testimony made the jury's mind up for them?

Well, he was qualified as an expert. He was the expert in the case as the prosecutor said, and he instructed them that in his research and his knowledge as an expert, children can not lie about this.... Defense has never put on anything that says children can lie about abuse, or claimed to have been abused when they weren't. So, this made their decision for them. You can not have an expert witness tell the jury that the prosecution's case is true....

And so Grant Snowden is now a free man?

Grant Snowden is now a free man. The state asked the 11th Circuit to review their decision and reverse it, restoring his conviction, which they declined to do.... The state then filed a petition to the United States Supreme Court for certiorari asking the U.S. Supreme Court to take this case and restore Mr. Snowden's conviction. And that's still pending. We'll hear about that in October....

One assumes since the physical evidence, the medical evidence, was so important in the Snowden case that it was established that he, Grant Snowden, had gonorrhea. Right?

It was never established that Grant Snowden had gonorrhea, and the other thing that was never established [is that] nobody ever checked Leslie's family to see if they had Gardnerella which could have been passed according to everything I've read from hand to child to changing diapers whatever....

In fact Grant Snowden, as far as could be determined, did not have gonorrhea, but interestingly one of the theories of the prosecution was and is to this day that makes perfect sense. He was a cop. He had access to such things as [penicillin], probably did a little self treatment and got rid of the gonorrhea. How about that?

I don't know what to say about that. I mean, so why didn't he do that before, why didn't he do it sooner? Would he wait? If he's so calculating and he thinks he has gonorrhea, you'd think he would stay away from the kids until he gave himself the treatment. I mean these theories of, "Well, he went out and treated himself-- " You didn't prove he had it. How do you prove you never had a disease? You know, it's impossible. And they play on these sort of twists....

You consider this trial a travesty, and at least on paper... you consider the same thing in the case against Frank Fuster. You know that there was at least another big case down in Florida at the time shortly thereafter against a kid, Bobby Fijnje, who was acquitted. What is it about that prosecution office, Dade County prosecutor, Janet Reno, at that time that would bring these cases?

Well, I think the first case, the Fuster case, came during a reelection time, and she was from everything I've read facing a real challenger, and this was a good way to score one and be in the papers every day on this huge case that no one could be against. No question the way that they were playing it. I think that from what I've read and heard about Janet Reno, she wants to be a protector of children. It's almost as if -- and when you look at this even through Waco --what she says is, "If I hear that there are children being hurt, I'm going to get in there and stop it. There is no chance that children are going to be hurt. I'm not going to dig too deep to see if they're really being hurt, but if the suggestion is there then I'm going to do something about it." So, when the suggestion was there, once an accusation was made against Frank Fuster, the suggestion was there, so we're going to put Fuster in jail, and then Fuster can no longer be...whether he was or not, he can't anymore. And the same thing with Snowden. We have an accusation, so let's put him away....

And I think even when you follow it forward... you have Waco, and again, from everything I've read, somebody said "There's babies being beaten in there." In the aftermath no one knows who said that. What was the evidence of that? Where was it...? And, you know, the day after the tanks went in, there were no longer babies being beaten in there. So, maybe there's a weakness. Maybe there's a sense of duty to get in there and do what needs to be done. Maybe the trigger's a little too fine....

What Mr. Markus, the prosecutor in the Snowden case, suggests... in describing that office at the time, one very oriented toward child advocacy, was that the presence of Janet Reno, the child advocate, allowed these cases, encouraged, fostered these cases. Do you think that might be true?

Yeah. It makes sense as you look at other things. I mean, I think if the people under her wanted to bring these cases, that was the place to do it. That she was a soft touch for this type of prosecution. Where another prosecutor might have said, "Wait a minute. You bring every piece of evidence in here and you tell me how did you find this evidence? Where did you find it? Where did it come from? Because this is a big deal and we're going to be all over the papers...."

[What are the] implications of these cases... were they just an anomaly of the '80s? Is this something we should look at as an artifact of another time, or is there any lasting --

I think they still happen as recently as Wenatchee, Washington, where these cases were happening in '94, '95, '96. We're still bringing appeals on those cases, [and the] prosecutor's office there is saying we're going to re-try anybody you get out on appeal.... Whether any big cases... are going to keep happening, I don't know. Lasting effects I just think are a damaged judicial system. I would hope that it would snap back the other way. Some people would think that the snap back would be that now you can't prosecute a case like this, but the snap should really just be to attention. To say, let's just look at what's coming through here? We're perfectly willing to prosecute these cases, and I'm perfectly willing to believe the children. There's nothing wrong with the expression believe the children, but what's been done to the children before? I'll believe them before you do something to them, but once you've done something, it's not the children anymore I'm believing, it's Laurie Braga.... At some point, it's not the children who are speaking. It's not children that we're believing or disbelieving. And I would hope that the aftermath of these cases might have some positive effects and make people stand up and say, we're going to collect evidence better....

[We know that in many jurisdictions,] laws were changed to make it easy for kids to testify.... There is even now, looking back, a bit of the sense that it wasn't just prosecutors being responsive to assertions of a hideous crime being committed, that almost as if the entire system, all the way up to the legislature, was being turned a little bit to accommodate this fever. Did you sense that?

Yeah, and it's a dangerous thing. There is fine tuning that can always be done to any system, including the judicial system. And there were laws that would keep children under 12 from testifying at a trial, which probably doesn't make sense for every child under 12. To strike that down, and say, OK, we have no presumption that a child under 12 can not testify. We're going to now ask this child can you perceive an event, recall an event, and recount the event. Did you understand the truth and the lie, and that you have to tell the truth here? Yes. We're going to treat this child more like an adult, and let them testify. That sort of thing makes sense. Allowing adults to come in, mothers and fathers who aggressively question their children... and then come into court and say, "This is what he disclosed," These are these "tender years" hearsay exceptions. A child that's so young, anything he says, anytime, the mother can come in and testify. There's problems with that. That's hearsay, when an adult testifies about, or when anyone testifies about what someone else said. To allow this stuff to come in without subjecting it to any check upon reliability is counter to the way the whole system works. And the Supreme Court snapped back in 1990 and handed down a decision that said, hearsay must be reliable to come in. In that case a doctor had asked a kid four questions that were somewhat pointed toward abuse, and the conviction was reversed because the doctor may have tainted this child's memory, and then he's repeating tainted testimony. So, now we have to look at the situation in which the child made the testimony. It has to have assurances that the guarantees of reliability, the statement is reliable. So, the Supreme Court adjusted back a little bit to what these legislatures were doing in the '80s which is saying, basically anything can come in....

Isn't the politics of child abuse -- beyond the prosecutors getting together in the newspapers -- it seems like there's an awful lot of legislative tub thumping involved in this too.

Absolutely. When a legislature says I want to make it easier for prosecutors to prosecute child abusers, what smart legislator that has some respect for the Constitution and the legal system is going to stand up and say, "No, you can't do that. This law violates the Constitution." But what are the papers going to say? Are the newspapers or the TV stations going to report that this guy was upholding the Constitution or are they going to report that this guy will not let the first guy make it easier to prosecute child abusers? It's really disgraceful how politics shapes this type of case and a lot of anticrime legislation....

...[Snowden prosecutor Markus] makes the sum and parts argument, [that the individual pieces of evidence he had would not alone convict Snowden but that taken as a whole they were conclusive]....

We talked about the particular elements of the case he put together against Grant Snowden, and he said, "Well, if I just had the first boy that set up the policeman and his accusation, possibly influenced by his father, became a witness. If I just had that piece, I probably wouldn't bring this prosecution. If I just only had the medical, the Gardnerella and gonorrhea, if I just had that piece I probably wouldn't bring it up. If I just had the testimony of the girl herself, maybe that wasn't compelling enough, but the pieces together, that makes a convincing, compelling, overwhelming case against Grant Snowden. The sum of its parts were compelling." I think that's a disgraceful way for a prosecutor to look at a case. The prosecutor doesn't have the luxury of saying I have no faith in this, I have no faith in this, I have no faith in this, but if I put them together I can create a big enough mirage. There's enough smoke here, that I can convince the jury that something happened. The prosecutor's function is to find justice, is to seek justice in this.... When a prosecutor looks at four or five elements of a case, none of which add up to anything, that this means nothing, this means nothing, this means nothing. Dismiss the charges. That's his job is to dismiss those charges because you have nothing....

There was a time in Florida, a time from the beginning of the century... up until the early 1980s when there was no prosecution of such a case, not one, and suddenly there was a spate of them.

I think what you had, before these cases, were legitimately cases that should have been prosecuted that weren't. I think that there was abuse that was happening that was not reported... the system was so cruel and heartless in the way that it dealt with people who were reporting crimes.... So I think a lot of these cases were swept under the rug, and either people didn't want to report them or when they did, they weren't believed. I think that movements to give a voice to these people and to point out the harshness and the coldness of the system were successful in softening the way that rape victims and abuse victims were treated when they entered the system. It was more friendly to them and was more receptive. I think with that came a breed of professional who worked in those systems... it starts to build. I think that you start to get more people into this, a few more prosecutions.... They're pretty easy to win once we get into court with this, because "little child, scary grownup," we're going to get a conviction.

I think as the media picks up on it, as prosecutors begin to realize what they have, --part good intention, part career advancement -- they start bringing more cases. Once television is all over it and the papers are all over it, we're just bringing them in. It's getting bigger and bigger. It's working in Florida, it's working in California, it works in -- well, it didn't work in Minnesota, but it's working. People are getting convicted. We're in the papers. This is great. This is get tough on crime. "Get tough on crime" begins to be the political slogan of anybody running for anything.... It really took until, I guess, the McMartin case when the jury finally starts thinking about, what did they do to these kids to make them say this? And that was a little jolt there of reality setting in.... [In] Jordan, Minnesota, the Attorney General throws those cases out after reviewing them. Kelly Michaels' case gets reversed. I mean, the Michaels case was a pretty big landmark.... I think there was a crack and I think some light is pouring in on this... I think in mainstream America, where people are looking at these cases, now we're looking at "How are they doing this?" Great that we're treating these people well, but we want an assurance. We want some quality assurance that what comes out the other end of this is for real. I hope that's where it's going....