Can Bad Evidence Ever Be Good Law?

by Michael G. Brock MA, LLP, LMSW

In an article that ran in the Detroit Free Press on February 8, 2012, and again online under the title: Judges to decide: Can religious confessions be used against you?, David Ashenfelter discusses the case of People v. Bragg. Mr. Bragg is charged with the rape or molestation of a 9 year old girl when he was 15. The girl revealed the molestation to her mother 2 years later after a church function, and her mother told their Baptist pastor, Rev. John Vaprezsan.

Vapreszan then decided to mix pastoral counseling and criminal investigation in much the same way that I have seen people in my line of work mix psychotherapy and forensic investigation, but truly in a way that is more sinister. When therapists mix therapy and forensic investigation, they usually don’t bother to confront the accused. As a rule, they ask direct and leading questions of the presenting parent and the child who has allegedly been abused.

In this case, Vaprezsan apparently decided to deliberately abuse the trust that his congregants place in him by interrogating Mr. Bragg under the guise of religious counseling. After extracting a confession (according to his testimony, but a fact in dispute by Bragg and his mother, who was at the interview), he contacted the police and gave them a statement, then testified at pretrial against Mr. Bragg.

To her credit, Judge Cynthia Gray Hathaway disallowed his testimony, but Prosecutor Teri Odette, appealed the decision, apparently hoping that in this climate in which all close calls go to the prosecution and anyone can be a self-appointed investigator, the appeals court will simply ignore the law.

No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination."

Michigan Compiled Law 600.2156

Any communications between attorneys and their clients, between members of the clergy and members of their respective churches, and between physicians and their patients are hereby declared to be privileged and confidential when those communications were necessary to enable the attorneys, members of the clergy, or physicians to serve as such attorney, member of the clergy or physician.

Michigan compiled law 767.5a

The prosecution has made the argument that the clergyman did not claim privilege, but the law does not say that the privilege pertains only to clergy, but to the confessor as well. The clergyman is not “allowed” to disclose any confession or communication obtained by him in his professional capacity even if he wants to. Had Rev. Vaprezsan informed Mr. Bragg that he was wearing his police investigator hat on this particular occasion, it seems unlikely that Mr. Bragg and his mother would have accepted the invitation of the pastor to pay him a visit and discuss this matter.

He was counting on the special trust that the members of his congregation have in him to obtain information he apparently thought the police would have a more difficult time obtaining. He is probably right; if all clergy were to deputize themselves as law enforcement officers they could routinely pick up the telephone after a conference and provide evidence for one member of their congregation against another. Perhaps they could even be paid in this capacity—or perhaps not.

This alleged man of the cloth is a disgusting affront to all clergy and a menace to his congregation. But if the allegation is true, doesn’t he have an obligation to see that justice is done? Perhaps, but within the parameters of appropriate behavior for a clergyman. If Rev. Vaprezsan had suggested to the child and her mother that they contact the police and Protective Services and file a report it is very likely that a successful prosecution would have been undertaken; one that was both legal and ethical and resulted in a conviction. Instead, we have a case in which a minister is violating a sacred confidence and one of his most important obligations as a member of the clergy, and a prosecutor is asking the appeals court to toss the law because her cause is just.

How did we get to the place where convicting someone with bad evidence replaced getting someone off on a technicality? And which attitude is ultimately more dangerous? Do we really need an imprisonment rate that is ten times higher than any other civilized country in the world? What happened to the axiom that it is better for the guilty to go free than the innocent to be convicted? What happened to the presumption of innocence? And what about Louis Brandeis’ admonition that, “Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.”

Why is it okay to bait a person under arrest into making statements after that person has said they want legal representation? Where do these policies lead? They constitute a serious and ongoing erosion of due process guarantees and lead to a police state mentality. And don’t tell me I don’t have a right to an opinion on the matter, I live in this country.

It is important to recognize that the average citizen has fewer resources than any government, and that government ought not to exploit it citizens because of this discrepancy. This it would seem is the true definition of conservative, if by that we mean the intentions of our founding fathers. A primary concern was that the citizens of our new country should be free from bullying by their government. This notion is clearly out of favor now, however. Take for instance the case of Dr. Labeed Nouri.

According to L.L. Brasier (Detroit Free Press, August 29, 2011) Dr. Nouri was convicted of sexually assaulting a young woman he employed as a favor to a friend. He did 3.5 years in prison, where he was repeatedly attacked by other prisoners, before the woman’s boyfriend came forward to say that it was all lies and he wore a wire to prove it. But what did the most noble prosecutor Jessica Cooper do when she received incontrovertible evidence of the perjury?

Prosecutors, noting Nouri had been convicted, offered a deal: If he pleaded no contest to a low-level misdemeanor assault - with no probation-reporting requirements and no restrictions on obtaining his medical license - he could be free within hours and get it expunged after five years.

Once they found out that Dr. Nouri had been wrongly convicted of a crime, the state should have been falling all over itself to release him and restore him to his rightful place in society. Instead, they let him out of prison, but added insult to injury by requiring him to plead to a crime they know he didn’t commit.

Why? One can think of many reasons, none of them honorable. The prosecution could have been protecting itself against lawsuit or possible criminal charges for maliciously prosecuting a case that had no physical evidence (because the prosecution’s witness refused to provide it), and, in which the facts clearly indicated the accuser was lying, even before the case went to a jury. How did the prosecution know that? Because at the precise time the accuser stated she was being abused—and she was very specific about the time—Dr. Nouri was continuously dictating medical records and there was a documented, accurate record of the fact.

Dr. Nouri’s attorneys should have understood the psychological temper of the times well enough to put him on the stand in his own defense. Regardless of what instructions a judge gives a jury, most people are psychologically predisposed to believe that someone who won’t speak in his own defense is guilty as charged. And especially in sexual abuse cases the presumption is going to be with the prosecution.

I had a case in Dumas, Texas a few years ago where defense counsel thought they had won the case without putting on their own witnesses. They confronted the accuser on cross examination with the documented fact that she had made a false allegation against someone else a year earlier and she had lied about it again on the stand during this trial. But the jury was unmoved. After the defendant was convicted, the prosecutor said to me, “Down here we have a saying, if you don’t talk, you don’t walk.”

That mistake notwithstanding, the fact that these cases are so easy to win should not be a reason for ambitious prosecutors to feather their nests by sending people they should know are innocent to prison. Covering their behind or protecting people who commit malicious perjury should not be a reason for hanging yet another crime on the true victim.

Michael G. Brock MA, LLP, LMSW is licensed as both a master’s level psychologist and social worker. He is in private practice at Counseling and Evaluation Services, 2514 Biddle, Wyandotte MI 48192. Mr. Brock has been in the therapy field since 1974 and, in the past several years, custody evaluations have become the majority of his practice. Mr. Brock has done hundreds of evaluations. His website is at http://michaelgbrock.com/