Trial and Error?

The long-expected happened Monday afternoon, when abortion doctor Brian Finkel took the witness stand in his own defense at his sexual assault and abuse trial.

A minute or so after Finkel took his seat, his lead attorney, Richard Gierloff, asked him if he'd sexually assaulted or abused any of his patients.

"Absolutely not!" Finkel replied, his confident voice booming through the county courtroom of Judge Alan Cates.

Criminal-defense attorneys normally are loathe to putting their own clients on the stand, whether they're innocent or not. One reason is that defendants almost always overestimate their ability to articulate their positions under the microscope of an attentive jury, judge and spectator's gallery. Another reason is that prepared prosecutors salivate at the opportunity of cross-examining an accused, and to raise issues that jurors otherwise never would hear.

But even an attorney as seasoned as Gierloff had scant chance of keeping the verbose Finkel from voluntarily taking the hot seat and swearing his innocence. So as the 53-year-old Phoenix osteopath's trial headed down the homestretch -- the jury is expected to begin deliberating within days -- he joined the unofficial roster of other recent high-profile Maricopa County defendants convinced they could sway the jury in their favor.

In previous interviews about his legal troubles ("Bedside Matter," Paul Rubin, September 20, 2001), Finkel blamed disgruntled ex-employees, the anti-abortion movement and befuddled patients for what he insisted was a terribly unjust situation. During the three-month-long trial, the suspended doctor's attorneys have added suggestive police-interview techniques to that list.

Team Finkel's take-your-pick defense may be summed up like this: Our client may have been rude, even occasionally verbally lewd on the job, but he didn't commit any sexual crimes against his female patients -- ever. They contend this is a case spawned by this newspaper's luridly inaccurate exposé and a law enforcement investigation that wrongfully targeted the controversial abortion doctor.

Specifically, Finkel's lawyers have been trying to convince the 16-member jury (which will be weaned to 12 after closing arguments) that Mark Stribling, an investigator for the Maricopa County Attorney's Office, planted suggestive ideas in the minds of the doctor's alleged victims, such as using the word "fondled" rather than "touched" during his interviews with them. Stribling took over the Finkel investigation for the County Attorney in 2001 after it stalled inside the Phoenix Police Department's sex-crimes unit.

Despite some witnesses who proved less than convincing in their accounts of Finkel's supposed sexual proclivities, prosecutors Blaine Gadow and Cindi Nannetti still have the numbers squarely on their side.

Finkel is facing 66 felony charges, including 58 counts of sexual abuse and eight counts of sexual assault. All 35 of the doctor's named accusers were his patients, whom he allegedly touched in a sexual manner before and after performing abortions. Charges weren't filed in the cases of dozens of other women who alleged sexual improprieties against the doctor.

Cases involving alleged sexual misconduct that lack physical evidence, such as semen or signs of injury, can be difficult for prosecutors to prove beyond a reasonable doubt. But one major hurdle for Finkel has been that none of the alleged victims apparently knew each other before speaking to authorities. In fact, several of the women spoke to police long before the first New Times story revealed the allegations against Finkel. Dozens more came forward after publication of that story.

Some of Finkel's former patients testified that he played with their clitorises before performing the abortions, unnecessarily and inappropriately fondled their breasts and, in one charged case, briefly performed oral sex on a patient.

Despite that testimony, prosecutors Gadow and Nannetti had to contend with typically imperfect memories of 35 alleged victims and others who testified at trial. They also had to deal with an inexplicably haphazard investigation by Phoenix police detectives in the years before a county grand jury finally indicted Finkel.

Added to that, some prosecution testimony fell short of what Phoenix police reports had suggested. For example, detective Art Haduch wrote in 1999 of his interview with Karen Corbett, a onetime medical assistant to Finkel, "[Corbett told me] that Finkel would particularly fondle the breasts of larger-chested women or women with breast enhancement. I asked Karen if she had ever been out of the room and Finkel was alone with the patient. Karen said this happened numerous times."

Haduch added, "Karen saw Finkel perform this [clitoral] flicking. Karen had seen Finkel do this during every pelvic exam. Karen . . . reported she would become upset about this flicking and would look away."

But Corbett testified that she'd only occasionally seen him touch a patient's clitoris, and had seen him "shake" many patients' breasts to awaken them after an abortion, "and then he would walk out of the room."

Corbett said she'd advised Finkel during her eight-year stint to be careful with his clitoral touches, "because in some cases it would make the patient uncomfortable." But Corbett also testified that not one patient had complained to her about Finkel's treatment.

One of the more fascinating defense witnesses in the case was Dr. Elizabeth Loftus, an articulate University of California-Irvine professor of psychology who probably is the nation's most famous expert on the science of memory. Loftus has been an expert witness and consultant in hundreds of high-profile cases, including the infamous 1980s McMartin preschool molestation in Manhattan Beach, California, in which she debunked the prosecution's theories.

Loftus told the jurors that memories may be "contaminated" by new input, such as a newspaper story or leading questions from an investigator.

"The problem with leading questions is that they contain information," Loftus said, contending that "without independent corroboration, it's almost impossible to know whether a memory is accurate or not."

Gadow asked Loftus on cross-examination if any memory can be accurate.

"It could, yes," Loftus replied.

In response to one of many questions from jurors, Loftus also conceded "there are people who do resist [leading questioning or other suggestive input], and most of the time [in studies] it's more than half of them."

E-mail [email protected], or call 602-229-8433.

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Paul Rubin
Contact: Paul Rubin