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interview: robert rosenthal

He is a civil rights attorney who has worked on appeals for several defendants convicted of mass allegations of sexual abuse, including Grant Snowden and Frank Fuster. He is currently serving as an attorney for Ileana Flores. Rosenthal tells FRONTLINE Ileana is now telling the truth because "she finally feels free of influences on her that were paying her tuition and frightening her from telling the story." This interview was conducted in January 2002.

Robert, to begin with, explain to us what your role is, working for Ileana in the case at this point.

Several months ago, Ileana called me, and asked if I would look into whether her plea could be revoked, and whether she could expunge the conviction from her record.

And why did she come to you?

I had been involved in the Fuster case, representing Frank Fuster back in the mid-1990s. Ileana had agreed at the time to be a witness for the defense, provided us with some helpful testimony. So she knew me from there, and some other cases that I'd had in the Eleventh Circuit. ...

Ileana has come forward recently, has given us an interview. Why?

Ileana told me when she called me a few months ago that she couldn't continue to live her life with this story of the Country Walk day care case hanging over her head, that her criminal conviction was interfering with her ability to work, to move on with her life, to have relationships, to progress as a person. She could not live with this anymore. She wanted to try to find out if there was a way to reverse her conviction, to withdraw her guilty plea, and move on with her life from there.

We know that Ileana continued to say nothing happened in that house until they brought really an unbearable force upon her to make her say that something happened in that house.

Why she came to be interviewed by you is because she wanted be as public as she can with her story, because for the last 15 years or more, others have told her story for her. She finally feels free of influences on her that were paying her tuition and frightening her from telling the story. And so now she's here to tell it.

Let's look at the evidence. There were a lot of children that testified in this case. What do we know now about that testimony that brings it into question?

We know that the methods used to elicit accusations from the children in that case have been proven to cause children to make false reports. We know that these children came into the interviews having little or nothing to say about sexual abuse or Frank Fuster or Ileana, and left the interviews saying that they'd been molested.

We also know what happened in the interviews. We know that every method known to science to cause children to provide false reports, and even to come to believe their false reports, were used on those children in interviews that lasted hours and hours. So what we know now is that the process by which the accusations were produced is a poisonous process. And it's not surprising that there were 21 children who made the accusations, or whatever the number was. ... Whoever you put through this process, at least a high percentage of them will come out the other end making the accusations that you were telling them to make in various ways.

How thoroughly has this kind of tactic been discussed in the scientific community? And how thoroughly has it been decided that indeed it does not work?

Pretty thoroughly. The scientific community began in the late 1980s, early 1990s, designing studies where they would subject children to the very methods that were used by interviewers like those in Country Walk. They cannot suggest to children that they'd been molested the way the Country Walk interviewers did. But they use other paradigms involving children, their bodies, physical examinations, events that they've been through, using the very methods that the Bragas used in this case and that other people used in other cases.

Scientists were able to show that a good percentage of children come out the other end of these interviews making claims that are not true. They're reporting, as truth, events that they've never experienced. These experiments also use very mild levels of suggestion; nothing near what was used on the children in Country Walk.

So if what we're seeing are preschoolers subjected to mild amounts of suggestion, usually a single form of suggestion, coming out making false claims in substantial numbers, if you ratchet up the amount of force that you're using on the children and multiply the type of suggestion that you're using on the child, you're going to get much more powerful results at the other end, and a higher percentage. ...

His own son supposedly admitted that something had happened, and agreed to the fact that the gonorrhea of the throat was probably caused by his dad, perhaps when he was asleep. Did that play on the jury's sympathies, the fact that he was the son of the man on trial?

Noel was really a tremendous aspect if you take into account, not just his testimony, but also the physical evidence that they tried to present with it. The jury would think, "Yes, he was in the house more than any of the other children. So if there was abuse, he was probably getting more of it than anyone else."

If it took influence to make a child accuse Frank Fuster, it would have taken so much more influence to make Noel an accuser. The jury at that time would have thought, "How could any child be subjected to so much influence that they would accuse their own parent?"

In retrospect, we look at that the other way. If they made Noel testify against his father, and they used the same amount of force on him as everyone else, it seems very obvious that we get all these other kids, who were essentially strangers, to testify against Frank.

What do we know about the medical evidence of the gonorrhea in the throat now? What's the latest evidence about the test that was used? When did we know that it was suspect?

I think at the time of trial they certainly should have known that there were problems with that evidence. They tested for a family of bacteria. Gonorrhea is one strain in that family. ... What the state's doctor should have known, and was known at the time, I believe, is that the Neisseria bacteria comes in many forms. Gonorrhea is one, but there are many others that live in children all the time. Some are asymptomatic; some show symptoms. The Neisseria is also very similar to other bacteria that grow in the same medium and look exactly like it. So a false positive is not only possible, but very likely. ...

How important was Ileana's testimony at the time of the trial?

I wasn't at the trial. ... I think it was recognized by the time of the Fuster case that you need more than just the kids' [testimony]. And so that brings Ileana; that's why she's so important. Here is an adult in the house who is now going to come to court, testifying against her own penal interest: "Yes, I was there. I didn't report this. I didn't do it, but he did it." It's a tremendous nail in this case. It really holds everything up. If you disbelieve the kids, if you disbelieve the gonorrhea, here's this woman; she was there. She pled guilty. She's going to go to jail for this, but she's admitting it. ...

[Do you believe] a Frank Fuster/Ileana Fuster case could happen today?

With some variations. I don't know that you could bring 20 children. I don't know that a prosecutor is going to even try to bring the big daycare case like the McMartin case, or the Kelly Michaels case in New Jersey, or the Frank Fuster case. What you see now are fewer complainants of alleged victims. It's lower key. It brings the cases under the radar.

Frankly, I think, the media is so accustomed now to these big cases that a prosecutor couldn't get away with it. But the media is not picking up the case where there's two children who were making their complaint. So those are still under the radar, and yes, these cases are still happening. ...

Can you look at the [demeanor] of a child and sort of say that indeed is someone who has been abused?

No, there's never been any scientific justification or validation for the notion that some list of behaviors that a child might be exhibiting, or some affect of a child indicates abuse. But for a long time, we were getting that.

You're describing that, piece by piece, this evidence that was considered to be very important in the Fuster case has, over the years, been shown to not work by experts in the field. The medical evidence, the son's testimony, the tactics used to elicit the responses from the children -- they've all fallen apart.

Now Ileana has come forward and stated, "Listen, you've got to understand what was going on, what I was put under, what I started to believe, and what happened." That has fallen apart. There doesn't seem to be any glue to this case anymore. You tell me: What's holding this thing up? Why, 17 years after he was put in prison, is Frank Fuster still in prison? Why the delay to sort of gain any attention to this case?

... Prosecutors who used to cry, "Believe the children," will now say, "Believe the jury. We must stay with the jury verdict. You can't undo it." In fact, we should undo it. The jury wasn't wrong, given what they saw and what they knew at the time. The jury was presented with evidence that wasn't sufficiently challenged by the defense. The judge let things in; science hadn't caught up; state experts were willing to say things that could or could not be verified scientifically. And the jury made their call. ...

Florida seemed to have been a hotbed for this type of case for the period of time that Janet Reno was there. But few are still in prison. You've got Snowden, who was released, the case against Fijnje, who was not put in jail. Why Frank Fuster? Why does he remain in jail?

... Frank's case was just bigger. There was more evidence. It's a tremendous trial record. I think that there was less organization to his post-conviction proceedings than Snowden. Snowden's actually had a very clean trial; it was very manageable. You could sort of move it along easily. ...

What about all these cases being brought in Florida? Janet Reno is the state attorney. What does it say about Janet Reno?

I think Janet Reno did things that were good down in Florida. I think that there was pursuit of fathers who weren't paying child support and things like that that were very admirable. I think that Janet Reno has shown somewhat of a soft spot when it comes to children.

I think that what she did in these cases here -- that there was an accusation that a child may have been abused, several children may have been abused -- without subjecting that accusation to the critical eye that a prosecutor should always use in pursuing justice rather than convictions, she said, "I will do what it takes to make sure that these children are not being abused."

She let the Bragas run free in the office. She set them up in her office; she gave them access to the children. She accepted testimony from Ileana in her case after Ileana had been subjected to remarkable amounts of persuasion and influence. She used bad medical evidence. And she got her conviction.

In the end, her goal was accomplished. These children could not be molested by Frank Fuster, because Frank Fuster was in prison. Whether they ever were molested by Frank Fuster is the question for the trial. But that was sort of just thrown out the window by the way the evidence was produced, rather than collected. So from deciding on her goal to achieving her goal, she goes in a straight line, but she misses the means. She misses the means that she got there. And I think that's borne out in all these cases. ...

Ileana was put in prison. What happened?

[She was] separated from everyone, isolated. She was left to think about these accusations that were being made about her and about Frank Fuster. And as nothing was being produced from her thinking about this on her own, her defense attorney decided that she must be blocking the memories of the abuse that was happening. He employed therapists to come to the prison to interview Ileana and help her release these blocked memories of abuse. They used all sorts of methods of guided imagery -- I think the psychologist, Rappaport, described it as reverse hypnosis -- to bring Ileana to accept that these acts had occurred. ...

What are the conditions that she's living under?

She was, at some point during this year that she was held, in solitary confinement for periods of time. She was not given any clothes for periods of time. She just remained naked in her cell. The light was on all the time. He sleep cycles were disrupted. She was medicated with all sorts of medications during that period. ...

Tell me the tactics or the "therapy," quote, unquote, that the behavior changers used with Ileana. Describe it. What were they doing?

They were coming to the prison and providing Ileana with statements made by the children. Those statements, of course, were produced by the people interviewing the children, suggestibly, and pulling accusations out of them. They were growing and harvesting these accusations from the children, and providing them to these therapists who were coming to see Ileana, who were then telling Ileana, "These things must have happened. Why would these children lie?"

They were asking her to close her eyes and imagine that these acts were happening. They would tell her to visualize: "You're walking in the front door. This is in the living room, and these are the things that are happening in the living room. You can see it." And over time, she began to see these things, and they began to appear in her dreams, the stories that she was being told.

And as she was dreaming them, the therapist was saying, "If you're dreaming them, these are your memories. They're unblocked, and they're coming to you in your dreams. You need to acknowledge them." And so they were planting these seeds in her -- these poisonous seeds taken from the children -- and they were growing as her own memories.

At the same time, were there pressures that would make her believe that possibly if she didn't come to this thinking, that these were repressed memories, that she might end up in life in the conditions that she was now in?

... Ileana has talked about -- and long before Ileana came forward, it was reported -- that Ileana had been taken out of her cell and out of the jail at night and taken to restaurants in Miami, and then thrown back in her cell and told, "If you ever want to see a restaurant like that again, you'll testify against Frank Fuster. Because you'll grow to be an old woman here in this prison." And you're telling that to a 17-year-old girl. I really think, at some point, she just had no resistance; there was no possibility that she was not going to go with the friendly forces of the therapists. ...

How close to hypnosis were the tactics used?

It was very close to hypnosis, because hypnosis isn't what a lot of people think it is. It's not, you know, "Watch the watch," and "You're getting sleepy." You can bring people into states of being very suggestible very easily. And this guided imagery is actually a form of hypnosis. It will do what the sort of traditional expectation of hypnosis will do.

[Is there] anything wrong with the tactics involved in this situation to bring about her testimony?

Yes. Yes. One of the problems with hypnosis that is recognized by courts in almost every jurisdiction, in one level or another, is that people under hypnosis are very suggestible. They will adopt what is being offered by the hypnotist or anyone else in the room that feels that they want to chime in.

So there's a tremendous amount wrong with sending someone to prison, or in Ileana's case, of taking a guilty verdict, a plea that "I am guilty," based on testimony that you produced from them through hypnosis. I mean, there's no reliability to this. It's more likely the suggestion applied during the hypnotic session than it is the reality.

Would this be allowed in a court of law today as an acceptable tactic to still use?

It is probably not. Different jurisdictions have different rules about the use of hypnotically induced testimony, but most would exclude this. ...

Bring us up to 1994. Frank Fuster's lawyer, Mr. Cohen, goes down to Honduras to interview or take a deposition from Ileana. How did that come to be?

Ileana's mother contacted Arthur Cohen and asked us if we would be interested in talking to her. She was ready at that time to talk to us about what had been done to her in the prison by the therapists, the behavior changers.

Did she say why? Why, all of a sudden, in 1994 or some years afterwards, is she all of a sudden wanting to talk about it?

I think at that point she was just beginning to realize that all of these things hadn't happened to her. I think it was dawning on Ileana at that point that the things that she had said happened, hadn't happened. And I think that's when her mother sort of seized on this opportunity. ...

So what happened?

Arthur Cohen went to Honduras and met with Ileana. She told him her story about what happened to her in the prison, the conditions in which she was kept -- that the therapists would come and provide all these tales of abuse and insist that she knew of them, and that over a period of time, she just started to dream them, and this was the release of her memories.

She also said, though, that this church was paying her school bills and paying for her to live down there while she was in school, and that if she were to go public with this statement, they would cut her off. And she was very afraid of that.

Why would they?

Because they didn't want her involved in this case; they did not want her doing anything that would assist Frank Fuster in his pursuit of a new trial.

Why are they involved on that level?

I don't know why they're involved on that level. But whatever their influence on Ileana was, it was strong enough that she spoke to Mr. Cohen and told him that she could not give him a statement on the record, although he had brought a court reporter with him, or a stenographer with him. They met, they talked, and he came back without a written statement.

The following year, she contacted us again, I believe through her mother, and said now she was ready to give a statement on the record. Arthur Cohen brought a court stenographer and took off again for Honduras. At that time, she had called me. I was not going on these trips, but she had called me twice, and pretty much told me her story -- the one she had told Arthur Cohen the year before, and the one she was about to tell him again.

What she told me matched up with what Arthur had told me. It also matched up with what I had read about the case in various newspapers and magazine articles.

At that point, you're both now working for Frank Fuster?

Yes.

Why did she contact you?

The Frank Fuster case she saw as the vehicle for telling her story. She needed to attach it to something. As a story hanging in the air, it wouldn't land anywhere. I think she was clear at the time that she wasn't interested in helping Frank Fuster get out of prison. But she wanted to tell her story, and she wanted to tell the truth.

So if telling the truth released him from prison, she was fine with that. She had her own issues with Frank. She didn't like him. She wasn't doing this for his benefit. She was doing it for her own benefit. Also, reversing his conviction, a court determining that the abuse at Country Walk never happened, would bear very favorably on Ileana and the plea that she took.

Cohen comes back with what?

Arthur Cohen came back after the second trip with a transcript of his interview with Ileana. He came back with cassette tapes of his interview with Ileana. Everything was notarized by a notary in Honduras, signed by Ileana. In fact, Ileana helped find the notary. He had a powerful piece of evidence.

This was a piece of evidence that probably would have made the difference in the Frank Fuster at that time. I believe the outcome of Frank's petition in state court for a new trial hung on Ileana's statement.

Which would have meant he would be a free man, at this point?

Most likely. It would have meant that he would be entitled to a new trial. Whether there would have been a new trial in this case is doubtful. The children are all older; the methods used to produce the evidence are thoroughly discredited. ...

But what happened? Tell me from when you first heard.

Arthur Cohen came back with the statements from Ileana just about as we were filing a petition in a trial court in Florida State Court. With the petition was Ileana's description of all these things that were done to her in order to produce accusations against Frank. The trial judge looked at this and was impressed enough with it that he ordered that there be a hearing, at which Ileana would testify.

Of course, Ileana was in Honduras and wasn't anxious to come back to Miami to testify at the time. The judge first ruled that we couldn't go forward unless Ileana was in a Miami courtroom, testifying in person. We then went back to the judge and asked, "Can we do this by teleconferencing? Is there someway that we can have Ileana in Honduras in a courtroom, swear her in, and let her testify in this way in Florida?" And the judge thought about it and said, "Yes, you can do that. I'm going to let you do that."

Within weeks, we got a letter from Ileana which I received through, I believe, a reporter in The Miami Herald -- it wasn't even delivered to me or to Mr. Cohen -- that had been secured by this Reverend Tommy Watson, in which Ileana repudiated her recantation, I supposed. She didn't say in the letter that all the things she said had happened to her in the prison didn't happen, but she just said she wasn't going to participate with Frank.

Actually, I don't remember the full contents of the letter, but the letter was withdrawing her cooperation. She was not going to testify from Honduras at all. "Without her testimony," the judge said, "You have nothing worthy of my considering," and denied our petition.

[What was] your thought at the time, when you first heard about the letter?

Oh, it was clear that Ileana didn't write the letter. I had seen things that Ileana had written before. I had spoken to Ileana twice. I had seen Ileana's transcript of her interview with Mr. Cohen. And first, I just found her more articulate than the letter. It just didn't seem conceivable to me that she wrote this letter. Also, I had spoken to her. I knew that the things she was telling me were true. They checked out by too many sources. ...

The frustrating part of this [was that] she was so willing, and she was so ready to cooperate. We felt by the way the letter was delivered to us -- she had been so trusting and forthright with us -- that she wouldn't even communicate with us and say, "You know, I can't do this," meant that she had been scared off, some way or other. And she literally dropped out of sight until four or five months ago.

But for what reason?

Well, she now tells me what reason. She tells me that they frightened her, that they told her she didn't want to get involved with us, that there were powerful people in this country who could make her very unhappy if she cooperated in anything having to do with the Country Walk day care case.

She tells me that in presenting her this letter to sign, Rev. Watson explained to her that she would be free from anyone ever coming to her to try to get help on Frank Fuster or anyone else's behalf, because by signing this letter she'd be going back on her word in the interview with Mr. Cohen, and that would just reduce her credibility to nothing, so nobody would even bother to look for her again. ...

But she would also lose the possibility of gaining citizenship in the United States, of clearing her name of crimes that supposedly she had done. So why is it an attractive thing to lose your credibility?

All these things that you just named that she gives up by signing that letter -- what that tells you is the power that Rev. Watson had over her, and the fear that he was able to instill in her. Because she wants this guilty plea removed. More than anything, she does not want a conviction on her record. I believe she wanted that at that point.

And the fact that she would give that up to turn herself into this incredible person that no one would ever listen to again, to do that to her reputation in addition to the guilty plea and the County Walk that follows her -- just tells you how frightened she was at that moment. ...

Has Ileana lost her credability? We had an interview where we asked a couple of questions at the end of it to Janet Reno about the importance of the fact that now Ileana had come back and was having a different story to tell. And she basically said, "Well, she's done that before." So what is the situation with this testimony now, and is it important in any way?

It's interesting that the prosecutor decides that because the witness changed her testimony, she's not believable. Because Ileana went for a year saying nothing happened in that house. And objectively, we don't know what happened in that house, but we know that unprompted, left alone, and put in miserable conditions, Ileana continued to say nothing happened in that house until they brought really an unbearable force upon her to make her say that something happened in that house. ...

If the prosecutor wants to pick and choose amongst the statements, you need to take the statements that are free of influence. And her original statement, after she got some distance from the prison, and her statement after she had some distance from the letter and from Tom Watson and now that she [was] free of dependence on the church for their money and their assistance, now that she's a woman who is trying to get on with her life, she's back to the first thing that she said. That first statement is the believable statement. ...

Now Rev. Watson to this day maintains that the letter was written by Ileana, that the letter was typed by Ileana, that she was the one who wanted it to take place. What's your opinion of that?

I'm not a linguist, but I do not believe that that is Ileana's writing. That's not how she addresses herself. I just don't believe that that was Ileana's letter, and she tells me that it wasn't. ...

We have a problem here in talking to people. It seems that no one on the other side wants to come forward and do an interview on camera with us. Janet Reno has told us she does not want to talk about it, the prosecutor, Mr. Hogan, Dr. Rappaport, the Doctors Braga -- none of them have agreed to an interview. Why is that?

I wouldn't agree to an interview if I were them either, because every method that they used to manufacture and produce evidence in this case has been thoroughly discredited in time since. And what are they going to do? What are they going to stand up and tell you is the reason that Frank Fuster is in prison? Because of accusations from children? It's not because of accusations from children. We know how those accusations were produced.

Ileana's corroboration testimony? We know how that was produced. The gonorrhea? We know how that was produced. There's nothing for them to stand on legally. ...

And one more time, why is that the case? Why do they not want to revisit this issue?

Oh, reputations were made on this case. I think there are probably many reasons why people don't like to admit they're wrong. ...

Was justice done?

Justice was not done in this case, by any means. And every day that this case continues is a day that justice is not done. This is not the pursuit of justice in this case. This was the sacking of justice in this case. This was taking every shortcut that you could to produce evidence where there wasn't any. No one ever went out and found evidence in this case. They created it in every situation.

What does Ileana have to gain by doing this? Are there motivations would perhaps push her to do this, that people will bring up in a court of law or whatever?

Ileana has to gain not having a felony conviction on her record, which is a hard thing for anyone to have on their record, especially when they didn't commit a felony. She has this story of Country Walk that, when people learn of it, people who know her learn of it, she then has to explain every time. And there's no real satisfying explanation that she can offer, as long as she still stands convicted of these acts that Frank Fuster's conviction gives credence to. So ridding herself of that, she has a public explanation of that. If she wants to be a United States citizen or remain a United States citizen, that needs to come off; the conviction needs to come off her record. That's what she has to gain.

What she has to lose is greater in many respects. And when she called me, my first advice was to forget about it. Why does she want to relive this? Why does she want to be subjected to the type of examination that she may be given at some point in a courtroom or somewhere else? Why does she want to subject herself to the ridicule of prosecutors who will say she's totally incredible -- that she'll say whatever she needs to say to promote herself in any given moment?

Why does she need any of this, was my first advice. Forget it. Just enjoy your life, put it behind you, and move on. But that's not what she wanted to do. To her, she's not free until the conviction is off the record. ...

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