the child terror
Interview: David Markus
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David MarkusDavid Markus led the prosecution in the second Snowden trial in 1986 in Miami, when he was an assistant district attorney.  He later left the prosecutor's office to become a defense attorney in Miami.  One area of his nexpertise is defending sex abuse cases.

Names of all children and their families have been changed.

Journey with me, if you will, take me back to that moment in time, in the early 1980s, you're a new young prosecutor on the staff of the State's Attorney, Dade County, Janet Reno.

That's correct. I had worked there for about four years, at the point that I was assigned the Snowden case....

Had Grant Snowden already been tried and acquitted at that point?

He had been tried and acquitted on another sexual battery case that was totally unrelated to this one.

...As you're preparing this case against him, the second case, to what degree do you incorporate the material, and the evidence, and the accusations of the first trial?

The material from the first trial was not used in any fashion in the second trial....

...It wasn't that you were building on Case Snowden 1?

No....

...Give me the context [for this case], if you will. Was it something that was very much on the minds of people in South Florida at that time? Was it a pressing problem? How was it perceived?

In South Florida at that time, and in the rest of the country, I believe, these types of cases were receiving a great deal of attention. People were becoming more willing to contact law enforcement and get involved with the criminal justice system and the prosecution of these cases. The State Attorney, Miss Reno, made a decision that our office would have a sexual battery unit that specialized in these type of cases.... So I got involved in this case, not out of the blue, but because I was a member of the sexual battery unit I had had experience with these types of cases....

This unit, Mr. Marcus, was it something of a prototype? Was it something that every local prosecutor across the country in every county had? Was it something that was relatively new?

I don't think it was the first in the country, but it was certainly one of the first. And it was the State Attorney's feeling that sexual battery victims were poorly treated by the criminal justice system, and needed to receive a little extra attention and support, because those cases are a little bit more difficult for the victims to prosecute.

[Janet Reno] saw this problem, and she did something about it.  She changed how these cases were prosecuted.  And the result was that the public became more comfortable with the idea of reporting these types of crimes.  So I attribute the change directly to her leadership in this area. For example, we had a separate waiting area. We had separate facilities within the office. We had a little bit more investigative staff assigned us than ordinary prosecutors did. And we had less cases, so that we had an opportunity to spend more time on the cases that we had. The unit was the product of Miss Reno realizing that these types of cases were being underserviced, and she made a commitment, by staffing the office in that manner, to the successful prosecution of these type of cases. Then, as the unit existed, we realized that child sexual abuse cases were even more of a problem to prosecute, because of the manner in which the system treated children in particular. We learned that the system subjected children to many different interviews by different members of the police and prosecution offices. And what we sought to do was have a child abuse center, where the State Attorney's office would control the investigations and spearhead those type of investigations in cooperation with the police, and thereby minimize the numbers of times that children were being interviewed, because it was thought, and I still believe this, that it's very traumatic for a young child to be interviewed about a sexual battery. And the least amount of times that we could do that, the better it would be for that child....

This was a departure from the way these types of cases were usually handled. For example, let's say somebody calls and reports that their child has been sexually battered. The uniformed officer would go out and interview the child. The uniformed officer had absolutely no training in how to interview children. How to ask leading questions. How to be sensitive. Then the uniformed officer many times would give it to a sergeant, who would then interview the child again. The sergeant likewise had no training or sensitivity in these types of cases.

And I don't mean to criticize the policy, but that was a reality. Then it would get assigned to a sexual battery detective; that detective did have specialized training in these types of cases, because the police department realized that they needed a separate unit for these types of cases. So, by the time the State Attorney's office got involved, the child had already been interviewed three or four times. And, at this point, many parents were saying "I don't want my child to go through this process anymore. This is more traumatic to my child -- this process -- than the actual crime." And we had a big problem getting parents to allow their children to be involved in the prosecution of the cases. We sought to make it more user friendly for the children.

Exactly. And in this new model, the user friendly model, how did it work?

Well, now it's become more systematized, but at the time... we had the children brought directly to the State Attorney's office when there was some suggestion of abuse. And in the Snowden... case, we did investigate other children who had access to the defendants, because it was our belief that most sexual batterers do not sexually abuse one child and leave it at that. And statistics and experience have borne out that statement. So we would bring the children directly to the State Attorney's office. The Bragas were involved in interviewing them. Joseph and Laurie Braga, they were experts in child psychiatry. They had a background in interviewing children, and they were involved in the case as interviewers.

Explain to me who the Bragas are. The Bragas then worked for the State Attorney?

The Bragas worked as consultants to the State Attorney's office in these types of cases. And at their insistence these interviews were videotaped because they wanted and we wanted there to be a record of the interviews with the children, so that that could be presented to the jury... so the jury could evaluate the method that the child disclosed the information....

So the Bragas are a new component in this new model, which is to say they are taking the place of in the old model, who?

Me. Instead of me interviewing the children, the Bragas interview the children. I thought that was a good idea.

So they're surrogate prosecutors in a way.

No. They were employed as interviewers. They simply interviewed the children. And that's how it is today in all of these cases. That model has been used today by the State Attorney's office in this county, and most other counties. Forensic interviewers interview the children on tape, instead of prosecutors. My training is as a lawyer. I don't have training in how to communicate with children....

Explain to me literally what it is that Joe and Laurie Braga can do that you couldn't have done?

They could get on the floor, and talk to a child on a three- and four- and five-year-old level. Because they speak a different language than an adult. And they were able to speak in the language of the children. Whereas I, not being trained in that type of work, not having any children myself, was not competent to do that.

And the significance of that is?

The significance of that is, I think, [that] a more accurate fact finding process occurs if an experienced forensic interviewer does the interviewing, and it's videotaped and recorded forever, than if a prosecutor does it, in his office without any witnesses, without any memorialization. And from the prosecutor's point of view, if the tape is done properly, they have nothing to fear, because it will completely refute the only defense that's available in most of these cases, and that is that the children were somehow brainwashed by the prosecutor, the police, their parents or somebody who has an interest in the case.

And conversely, I guess, if in fact these interviewers are overly suggestive, are in fact implanting ideas in the heads of these kids, then that record exists also.

That record exists. And as a defense attorney today, I'm happy to have that record to check for those things.

You're a defense attorney. Let me ask you a couple of things. You do believe that child abuse exists?

Of course.

How do you feel about the notion that children don't lie?

I think that children in the age bracket of four-, five- and six-years-old generally do not lie about sexual matters. I feel that is a general statement. I feel that as children get older, they are more prone to lie. Eight- and nine-year-old is a questionable age. In our society today 12-year-olds are having babies. So eight- and nine-year-olds know about sex. But four-and five-year olds, when they describe an act of cunnilingus to you, they got that information from somewhere, and depending on how they describe it to you, the circumstances of the disclosure, you can evaluate, I think, whether or not they're telling the truth. I would not stand here and say that no kid has ever fabricated something like that. Of course, that's ridiculous, but I think as a general proposition, children of that age do not generally lie. And I think you have to look at the circumstances surrounding most of the cases where it's turned out that the children have lied -- I think that most of them occur in child custody disputes, where there's a divorce pending or animosity between the parents, and the father generally is being accused.

But in these cases why is it then [that] often the first thing the kids will say to their parents, to prosecutors, indeed to the Joe and Laurie Bragas, "No. That didn't happen. No. He didn't touch me. No. I wasn't abused."

That's very common, and the reason for that is because the child thinks that they did something wrong themselves, and the reason they think that they did something wrong themselves is because the abusers usually tell them that they did something wrong, and don't tell anybody, and the children are afraid and intimidated.

And so part of the process then of the Bragas is to what? De-program on that?

Part of the process of the Bragas is to try to get the children to feel comfortable with them, to tell them the truth. And you'll see that in many of these interviews -- I'm not talking about just this case, I'm talking in general -- sometimes the interviewer will sit there for 30 or 40 minutes with the children, playing games, being very patient, not talking about anything that relates to the case, just to get the children comfortable....

You mentioned that Janet Reno and this office were looking at these cases in particular as a means of finding better ways to prosecute such cases. Explain that to me a little more fully. Why did they need better ways...?

Because it was obvious that we were getting a lot of cases where parents were reluctant to subject their children to the criminal justice system. And we were looking for ways to make our system more user friendly, by limiting the amount of interviews [children would be subjected to].

Two questions about that; you're a local prosecutor. You're also a politician; you have to stand for office or you don't have the job. Was there any sense at all that this was a subject and issue that the public was interested in?

I think that the public supported Miss Reno's efforts, but I don't think Miss Reno was ever any concerned that she would or would not be reelected as a result of this case.... That's just not how she operated. I've always had a tremendous amount of respect for her, because she does what she thinks is right, regardless of political consequences. And I think that her positions today reflect that.

The other question then would be [that] there were these suggestions that these cases weren't getting prosecuted because parents were reluctant; a lot of cases? Cases like this, cases of multiple abuse, that were being reported but not followed up on?

I couldn't give you a statistical answer to that, but there was an awareness within the law enforcement community that there was a lot of cases that weren't followed up because of victim reluctance. And at the time, had I been a parent, the way these cases were being prosecuted, I wouldn't not have allowed my child to go through it. I wouldn't have allowed it. I just wouldn't have allowed it....

The office got a conviction [in Country Walk], got a conviction on Snowden.... did the office have any sense of, aside from the conviction, a validation of its new approach? Was it emulated elsewhere?

I know within the office that became the way these cases started to be handled. And I know that a lot of other State Attorney's offices called for our opinion on how to handle these types of cases. I think there was a lot of validation by the convictions. There's no doubt about that. But I think the real validation comes from the fact that this methodology is now copied by most prosecutors' offices across the country. Most prosecutors' offices in big cities have forensic interviewers. They do taping. They have separate units for child abuse cases, and the proof is in the fact that this is how it's done today.

You all developed a method, a technique, a successful way of prosecuting these cases. Is that to say that before you did that, there weren't perverts in our midst? The cops and prosecutors weren't sensitive, society didn't care? What had changed?

I think what changed is the public awareness that came with Country Walk and Snowden changed how people viewed reporting these types of crimes. I don't know that the sexual abuse rate is any higher now than it was 20 or 30 years ago, but the reporting rate is certainly higher. And I think there's a lot of stigma to being a sexual battery victim. And a tremendous stigma to being a child sexual battery victim. And these types of cases told people it was okay to report these types of crimes, and it wasn't their fault. And that they were not bad people. And I think the more public acceptance there is of prosecuting these types of cases, the easier it is for the next child or the next adult who has been raped to come forward and prosecute one of these types of cases. That's the true contribution that I think that these two cases made to our society in Dade County....

[So] the system turned. What I would like to know is why did it turn here? Why did it turn then?

Because of the leadership of Janet Reno in this area. That's why it turned. Because she saw this problem, and she did something about it. She changed how these cases were prosecuted. And the result was that the public became more comfortable with the idea of reporting these types of crimes. So I attribute the change directly to her leadership in this area....

You argued the case again Grant Snowden that resulted in his conviction. What was your case?

Our case consisted primarily of three witnesses and two pieces of physical evidence. We had the main victim in the case, and we had two similar fact witnesses. The two similar fact witnesses had symptoms of venereal disease. One had gonorrhea of the throat; one had a disease called Gardnerella vaginitis, which is a disease that is associated with sexually transmitted diseases, but is not always sexually transmitted.

All three of these children were babysat by Grant Snowden's wife at a time when Grant Snowden had access to them. And there was testimony that at times while they were there, he was actually babysitting for a period of time, when the wife would go out to do errands.

Why was it important to have three children?

Well, that's what we learned from the first case is that the jurors apparently... didn't believe the one child. They didn't believe it sufficiently to have no reasonable doubt about his guilt.

So if you have multiple witnesses essentially testifying to the same thing--

It adds to the credibility.

Did the jury find that compelling?

Never interviewed the jury, but I think they found it compelling because it only took them an hour to find him guilty in a trial that took almost two weeks.

If you were to assess, as the lead trial lawyer, what it was that convinced the jury that Grant Snowden was guilty; what would you say?

I think the jury had the opportunity to view the videotapes and conclusively refute the defense of brainwashing. That was one thing, and the presence of the physical evidence corroborated what the children were saying. You don't get gonorrhea of the throat by accident. Somebody sexually abused that little boy....

You still believe in the righteousness of this case. You yourself had to become convinced of Grant Snowden's guilt. What was that moment for you?

When I read the file and spoke to some of the other participants in the case, and I was able to see the overall picture, the physical evidence, the interviews done by the Bragas, the progression of disclosure by the victims, I was convinced.

Was it personally persuasive that there was more than one child?

Of course.

And it was therefore [important] to you to let the jury hear that that there was more than one child.

Yes.

Why was it important that they were all telling the same story?

Well, generally if people tell the same story, and it's not shown that they got together and made up a story, then what they're saying is probably true.

But couldn't it also be that they were being fed the same information from the same source; namely, the Bragas?

That's the defense perspective, and that's why it was so important that the videotapes be made. And that's why they were made. Because it was anticipated that that would be a defense. I often get this as a defense, as a defense attorney today and as a prosecutor. Generally, I find it to be ridiculous. This is not the Manchurian Candidate, the movie. This is sexual abuse, the reality. And in reality it's very difficult to persuade a child to lie about something so visceral repeatedly and convincingly. I wish someone could tell me how to brainwash children, because then I'd be able to brainwash my eight-year-old son to clean up his room....

...The jury goes out, and what happens?

Came back in an hour.

In an hour!

I think everybody was pretty surprised that it was that quick.

What did that tell you?

It told me they believed the kids.

What had the jury decided?

They found him guilty as charged. Capital sexual battery.

What was your response?

I was satisfied. I was happy that the kids had felt vindicated. I thought he was guilty, and I thought it was important that the public know that he was guilty....

The significance of this case; here, that moment, that time, your victory. What was the significance?

The significance is that children would be believed by jurors and would be respected by the prosecutor's office and the criminal justice system, and the result was that more parents of children were willing to allow their children to be involved in the criminal justice process....

And how was it viewed inside your office?

Inside the office it was viewed as a victory, which is what it was.

But a validation of--

A validation of our procedures. We continued with the same procedures. We systematized them. Today they are several; three or four or possibly even five interviewers who work for the State Attorney's office and exclusively interview children. The sexual battery unit consists of half a dozen attorneys....

But cases such as that against Grant Snowden, as that brought successfully against Frank Fuster, as that brought unsuccessfully against Bobby Fijnje, those cases multiple ritual sexual abuse in a daycare setting, those are rather rare aren't they?

They're extremely rare. It takes a certain level of evil to do what these people did.

How did they come to be, given their rarity, clumped together so--three cases popping up one, two, three, right here. One prosecutor's office, one population here in South Florida?

I have no answer for you on that.... It was a real awakening for this community for Snowden and Country Walk both to be occurring at about the same time. People were really shocked that such a thing was going on here. I think it's unusual today....

You were with the State Attorney's office until when?

I worked there from 1981 to 1986.

So you were a prosecutor until 1986, then what did you do?

I've been here for 12 years as a defense attorney.

All the time a lawyer in Dade County.... In all that time since you left [the prosecutor's office] have there been any other of these multiple sexual abuse cases that you know of?

Not of this scale. No. There have been other cases where the defendant has had three or four different kids, but nothing on the scale of these people....

[Was there somewhat of a national hysteria about multiple child sexual abuse cases going on at this time?]

Well, let me speak to Dade County.... We did not have every daycare center calling us to say, "We have six people who are making complaints of sexual abuse." As a result of this case, we did not generate other multiple serial rapist cases. So I don't think there was a hysteria in the sense everybody was reporting multiple acts like this in Dade County. In fact, as far as I know, other than the Fijnje case, from 1984 until the present time, there's never been another case like this in Dade County....

It all stopped when two things happened; Bobby Fijnje was acquitted and Janet Reno left town to be the Attorney General of the United States of America.... Before Janet Reno becomes the prosecutor in Dade County, there [was] no prosecution of one of these multiple victim sex abuse cases.

Let me answer your question in this way. When I was assigned this case, I was told to evaluate it and make a decision whether to prosecute it or not. And if I would have went to Janet Reno, and said, "Janet, I don't think the evidence is there. I don't think this is an innocent man." The case would have ended then. She had no agenda in this case. And it's a lie to suggest otherwise.

She had an agenda in the sense that she wanted to protect children, to give them the benefit of the doubt.

She had no agenda to falsely accuse people just to make cases....

Grant Snowden['s case], as you know, was reversed by a panel of federal judges in the 11th Circuit, and remanded back to the trial court. Why?

Well, an Appellate Court is much like a computer, what comes out is a result of what goes in. There's a saying in computers, "garbage in, garbage out". And I thought that this case was incompetently argued by the Florida Attorney General's office.... The Attorney General's office appeal strategy was to focus on procedural errors by Mr. Snowden's appellate attorneys... instead of responding to the allegations that Mr. Snowden's lawyers made to the merits of the case. So what you saw was a defense version that was literally unanswered by the Attorney General's office. I thought it was a job of poor lawyering. And as a result of the poor lawyering, a poor opinion resulted.

But you would agree that on some level the appellate court was making its ruling on the merits.

Of course they made their ruling on the merits. But had they gotten a better picture of the overall state of the evidence against Mr. Snowden, they would have found that the complained upon comment that was elicited from Dr. Miranda was harmless error, and did not affect the jury verdict....

Was Grant Snowden an innocent man wrongly jailed?

I don't think so.

Do you believe he'll be tried again?

Yes. I do.

Should he be?

I believe so. I don't think it should be dismissed at this point, and have Mr. Snowden become a martyr and an innocent man and have him go write a book on how he was wronged....

Is there anything that could convince you of the possibility at least of his innocence? A lifetime before this alleged incident of being a model citizen?

Most sexual battery perpetrators do lead model lives. The regular criminal generally is not a sexual battery perpetrator. Most of them are manipulative, cunning and conniving people; their methodology is to abuse trust. Someone who uses that methodology has to be a person that people would respect and feel confident in. And sexual batterers are people like that.

Why didn't Mr. Snowden have gonorrhea?

Penicillin.

Penicillin?

I think he was treated.

Wouldn't there be some record of that?

I believe that there were no signs left after you're treated.

But wouldn't there be some record of the treatment?

You mean could somebody get penicillin without anybody knowing about it...? I think if people can get heroin, crack and LSD, they can get penicillin.

So you believe that Grant Snowden may have gone out and treated himself in essence?

Of course....

What does it mean that Snowden was reversed...? You don't see it as a signal that there's a broader reversal of--

I think Snowden is an aberration from the 11th Circuit... if anything.  

So you do not think that this is evidence of our political or judicial culture saying, "Whoa! What did we do here? We made a mistake."

No.... I think this is one case poorly decided.

You're a defense lawyer now. You're on the other side now. Isn't it so that that very model that you helped to create when you were prosecuting Grant Snowden, now works against you?

It does. Rather effectively.

How?

Because I can't make the brainwashing argument as simply, and as easily as they were able to do. People are more sophisticated in how they handle the cases, how they question the children. And the public is more willing to support the State Attorney's office, and laws passed by the Legislature restrict the ability of the defense attorney to depose victims under certain circumstances. It allows a lot of hearsay evidence into evidence that wasn't allowed previously. It expands the use of other crimes evidence... [more] than would have been allowed in Snowden's case....

So, if you're a man charged with sexual battery, especially sexual battery against a child, coming into the system now--

I'd be terrified. And I'll tell you how it affects me personally. I would not give my babysitter a ride home by myself, because if I'm accused of a sexual act by her, and she's a fine young lady, but just as an example, it's really my word against hers. And even if I win I lose.

Is that a good thing?

I don't know that it is. I don't know that it is....



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