Originally emailed 25 July 2003
Therapist Wants New Trial to Establishing Efficacy
of “Holding Therapy” with Testimony from Happy Parents
Colorado — The criminal cases of Attachment Therapists Connell Watkins and Julie Ponder, the convicted killers of Candace Newmaker, are nearing their climaxes in the Colorado Court of Appeals. Attorneys gave final oral arguments in Watkins’s appeal on Tuesday, July 22. The appeal of Julie Ponder is lagging about three months behind.
Both Watkins and Ponder are serving 16-year prison terms after their convictions in 2001 for reckless child-abuse resulting in the death of 10-year-old Candace in a “rebirthing” session. Because it was a crime of violence, neither reportedly will be eligible for parole until 2013 under current guidelines.
Watkins hired former Colorado Supreme Court justice Jean Dubofsky for her appeal, who argued this week before the three-judge panel that there were three errors which should overturn Watkins’s conviction:
First, the trial judge, Jane Tidball, did not allow the testimonials of previous clients — the parents of “attachment disordered” children — to rebut prosecution experts who testified that Holding Therapy is without scientific basis and cannot be regarded as effective. Tidball had ruled that testimonials on effectiveness were irrelevant and would tend to confuse the jury as to the real issues in the trial; but she did allow testimony where previous clients thought Watkins’s procedures were safe.
Second, there was insufficient inquiry into the effect that a newspaper story about the jury, published during the trial, may have had on jurors.
Third, trying Watkins under the reckless child-abuse statute denied her the lesser sentencing options which would have been available had she been tried under other statutory provisions; as a result, she claims to have been denied equal protection under the law.
Ponder, meanwhile, is prinicipally arguing in her appeal that she should have been tried separately from Watkins — taking some potshots at her co-defendant along the way. She is represented in her appeal by a public defender. The briefing is not complete in that case.
As in the briefs filed by the attorneys, most of the oral arguments on Tuesday concerned the issue of 11 denied testimonials (including, remarkably, about one child who was sent to a psychiatric hospital within a year of Watkins’s treatment). Watkins argues that recklessness in this case required a state of mind that had no reasonable basis for disregarding the pleas and cries of the child. But she did have a reasonable basis, her argument goes, in that children suffering from “attachment disorder,” such as Candace, often make protestations to stop therapy session (e.g., “I’m going to die!” “I can’t breathe!” “I’m going to throw up.”); in numerous cases treated before, Watkins disregarded such statements by children and had successful outcomes as a result.
The defendant’s argument brought one justice to ask what the correlation was between the success of Watkins’s holdings with other children and the risks she was posing for Candace in the rebirthing session. For Watkins’s case to be fully made, Dubofsky replied, the jury needed to hear that her therapy was not as “far out” as the prosecution’s experts had made it seem. But by not being able to present testimony to that effect, the prosecution’s experts went unanswered, and the jury was left with the unfair conclusion that Watkins had no reasonable basis to act as she did with Candace.
The State countered Watkins’s argument with assertions that some testimonials did, indeed, creep into the defense’s case to the jury, despite the trial judge’s ruling, and those were sufficient to make Watkins’s argument moot. “There was testimony in the record that this was successful,” Catherine Adkisson, Assistant Attorney General, told the court.
Watkins arguments on the testimonial issue raise significant concerns about the integrity of scientific evidence introduced in US courts. An amicus curiae (“friend of the court”) brief, accepted by the court, focused on those concerns. Three individuals who have been following the case closely — Prof. Jean Mercer; Linda Rosa, RN; and citizen-activist Larry Sarner — argued in that brief that Watkins was trying to trump scientifically valid evidence with scientifically worthless anecdotes. “The direct effects of accepting [Watkins’s] arguments in this case would be to artificially elevate the judicial reliability for anecdotal evidence,” they wrote. “An inevitable consequence will be that the truth-seeking function of the scientific enterprise will be gravely compromised thereby, and all of society — not just the courts — will suffer as a result.”
It was pointed out in the amicus brief that Watkins had every opportunity to present qualified scientific experts to rebut those of the prosecution. Her failure to do so was mute evidence that there was no scientific basis for such rebuttals, and it was fair to let the jury draw that conclusion. On the other hand, allowing lay witnesses to provide anecdotal evidence for the purposes of rebutting scientific evidence would indeed confuse the jury as to what was reliable evidence and what was not.
The amicus brief also made the point that in the light of what Watkins should have known, her actions with Candace were reckless. Watkins had held herself out to her clients as a professional psychotherapist. Based on the scientific evidence available to her and other professionals in her field, she should have known that the screams and cries of a child in a potentially life-threatening situation could have been genuine and acted accordingly. Moreover, as a professional, Watkins should have known that the situation into which she had placed Candace was potentially life-threatening, and either not placed her into that situation or done sufficient monitoring to assure the client’s safety and well-being. Watkins’s failure to act appropriately on what she should have known, means she was reckless. Her previous “successes” with other clients were irrelevant as to what she should have done.
Not brought up on appeal was the defense’s claim that 10-year-old Candace actually died of a previously undiagnosed heart defect. That possibility had been raised by the defense during trial, but ultimately was rejected by the jury.
AT News will report the judges’ ruling when it is forthcoming. Also:
Peggy Lowe, “ ‘Rebirthing’ trial unfair, lawyer says,” Rocky Mountain News, 23 Jul 2003.
Caution: links may have aged since this AT News was first emailed.