United States v. Butterfly
72 Fed. 3d 136, 1995 WL 729484 (9th Cir.)
182 F. 3d 928, 1999 WL 369954 (9th Cir.)
Both Ronald and Mary Butterfly were convicted of sexual molestation of four of his nephews, all of whom had FAS. The defendants challenged the competency of the four children to testify. The trial court permitted them to testify, and in 1995 the court of appeals, by a vote of 2-1, affirmed. The defendants were not permitted to put before the jury evidence that the boys' FAS made them unreliable witnesses. Judge Canby dissented.
There were several problems with the testimony: (1) The children testified that there had also been four separate murders, none of which could be substantiated in any way. (2) Other events related by the victims were apparently improbable and contradicted by other uninvolved witnesses. (3) One witness, Brandon, testified variously that he understood the oath to tell the truth, that he had no duty to tell the truth, and that he did not care that he was under oath. Brandon stated he did not know what would happen to him if he lied in court. (4) A therapist testified that Brandon did not know whether his stories of abuse were true or false. 1995 WL 729484 at *3.
In the 1995 appeal the court upheld the convictions. Subsequently all four of the alleged victims recanted. The trial judge refused to hold a hearing about whether the defendants were entitled to a new trial. The court of appeals in 1999 reversed, and directed that a hearing be held. The court quoted from the dissenting opinion in the 1995 appeal, including this statement: "fetal alcohol syndrome . . . often makes it difficult for its victims to separate fact from fiction. Brandon's therapist testified that Brandon did not know whether his stories of abuse were true or false." 1999 WL 369954 at *1.