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Margaret Kelly Michaels: Introduction
         
                                                                           
 




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STATE OF NEW JERSEY
 PLAINTIFF-RESPONDENT
v.
MARGARET KELLY MICHAELS
DEFENDANT-APPELLANT

Superior Court of New Jersey, Appellate Division
264 N.J. Super. 579 (1993).


Before Judges J.H. Coleman, Shebell and Conley

 

OPINION

Defendant, Margaret Kelly Michaels, appeals from her jury conviction on 115 counts of sexual offenses involving twenty children who were in the Wee Care Nursery School (Wee Care). The trial court sentenced defendant to an aggregate term of forty-seven years in prison, with fourteen years of parole ineligibility, and $2,875 in fines payable to the Violent Crimes Compensation Board.

She was originally charged on June 6, 1985, in a six-count indictment involving three boys. A second indictment of 174 counts involving twenty boys and girls was presented on July 30, 1985. A third indictment of 55 counts involving fifteen youths was filed on November 21, 1985. Those three overlapping indictments contained a total of 235 counts.

Pretrial motions spanned the course of the year prior to trial. In July 1986 defendant moved to dismiss the indictments for lack of specificity. The motion was denied. Defendant also moved for permission: (1) to present child-sex-abuser-profile testimony to demonstrate that it was not likely that she had committed the alleged acts; (2) to have the child-victims psychologically examined; and (3) to dismiss the indictments for improper suggestibility by interviewers of the children during the investigation phase.  Those motions were denied.

Defendant also moved to admit the results of the State's polygraph examination of her taken on May 6, 1985 into evidence. She had not been advised that she could stipulate to use of the results and thus no stipulation was entered into. The State's polygrapher who administered the examination concluded that defendant had passed; however, the State later asked its chief polygrapher to review the results. After consulting with another polygrapher, he concluded that the results were "inconclusive." The trial court denied defense counsel's motion on the ground that an unstipulated polygraph is inadmissible. Defendant has not appealed this ruling. We note the fact of the early administration of the polygraph for historical purposes and for its bearing, if any, on the manner and direction of the State's investigation into the allegations of child abuse at Wee Care.

The State filed pretrial motions to permit the children to testify by closed-circuit television (CCTV) pursuant to N.J.S.A. 2A:84A-32.4, and to present expert testimony on the Child Sex Abuse Syndrome (CSAS). The trial court granted the State's motion to present CSAS testimony and ultimately permitted all of the children to testify on CCTV.

The jury trial began with opening statements on June 22, 1987. Nine months later the case went to the jury for deliberation. At the time the case went to the jury, 131 counts spanning the three indictments remained, charging essentially four types of offenses: aggravated sexual assault (N.J.S.A. 2C:14-2a(1)), sexual assault (N.J.S.A. 2C:14-2b), endangering the welfare of children (N.J.S.A. 2C:24-4), and making terroristic threats (N.J.S.A. 2C:12-3). After twelve days of deliberation, which included a replaying of each child's CCTV testimony at the jury's request, the jury returned with guilty verdicts on 115 counts of aggravated assault (thirty-eight counts), sexual assault (thirty-one counts), endangering the welfare of children (forty-four counts), and terroristic threats (two Counts).

The trial court denied defendant's motion for bail pending sentencing.

On April 18, 1988, we granted defendant's motion for bail pending sentencing, and at the same time granted the State's motion for a stay pending the State's application to the Supreme Court for review. On April 26, 1988, the Supreme Court reversed our order granting defendant bail pending sentencing.

The trial judge denied defendant's motion for a new trial and sentenced defendant on August 2, 1988. The judge denied defendant's motion for bail pending appeal, and we affirmed his denial in light of our Supreme Court's earlier ruling. Defendant has been incarcerated from April 1988 to the present time.

On appeal, defendant raises the following legal arguments:
 

NOTE While the defendant raised nine points in her appellate brief -- as the court sets out below -- the seven parts of the Appellate Division's opinion do not correspond to the points in Michaels' brief.

POINT I: THE TRIAL COURT'S REFUSAL TO ALLOW DEFENSE EXPERTS TO EXAMINE ANY OF THE CHILD-COMPLAINANTS IN ORDER TO PLACE THE DEFENSE ON EQUAL FOOTING WITH THE PROSECUTION DEPRIVED MS. MICHAELS OF AN ADVERSARIAL TRIAL -- THE ESSENCE OF DUE PROCESS.  

POINT II: THE USE OF CCTV TESTIMONY WAS IMPROPER BECAUSE THE TRIAL COURT DID NOT FOLLOW THE CCTV STATUTE, AND BECAUSE THAT TESTIMONIAL DEVICE, AS USED IN THIS CASE, EVISCERATED THE PRESUMPTION OF INNOCENCE. 

POINT III: THE TRIAL COURT ERRED IN ADMITTING TREACY'S TESTIMONY BECAUSE HER METHODOLOGY IS WHOLLY UNRELIABLE AND SCIENTIFICALLY REPUGNANT.  

POINT IV: BY BOLSTERING THE CREDIBILITY OF THE CHILD-WITNESSES, TREACY INVADED THE PROVINCE OF THE JURY.  

POINT V: THE TRIAL COURT'S REFUSAL TO PERMIT DEFENSE EXPERT TESTIMONY ON THE LACK OF ANY INDICATIONS OF DEVIANCY OR PATHOLOGY VIOLATED MS.  MICHAELS' RIGHT TO PRESENT A DEFENSE TO SUPPORT HER CLAIM OF INNOCENCE.   

POINT VI: REVERSAL IS REQUIRED BECAUSE THE QUESTIONING OF WEE CARE CHILDREN WAS SO SUGGESTIVE AND COERCIVE THAT THEY WERE RENDERED INCOMPETENT TO TESTIFY.  

POINT VII: THE PROSECUTOR'S INVOCATION OF HITLER AND ITS AD HOMINEM ATTACK ON DEFENSE EXPERTS INEXCUSABLY POISONED THE TRIAL.  

POINT VIII: THE TRIAL COURT IMPERMISSIBLY ALLOWED THE JURY TO VIEW THE VIDEOTAPES OF THE CHILDREN'S CCTV TESTIMONY DURING THEIR DELIBERATIONS.

POINT IX: THE ADMISSION OF MASSIVE HEARSAY TESTIMONY SO THOROUGHLY POLLUTED THE TRIAL THAT NO REMEDY OTHER THAN A MISTRIAL WAS APPROPRIATE.

On January 6, 1993, our State Supreme Court handed down its opinion in State v. J.Q., 130 N.J. 554 (1993). In the present case, as in J.Q., the opinion of the State's expert went beyond the limited permissible scope of syndrome testimony. Unquestionably, this erroneously admitted evidence was capable of producing an unjust result and thus requires the reversal of defendant's convictions. R. 2:10-2; J.Q., supra, 130 N.J. at 574-76, 582. We find it necessary nonetheless to expand on this and other issues raised on appeal.
 

 Opinion: Factual Background
 Opinion: Section I
 Opinion: Section II
 Opinion: Section III
 Opinion: Section IV
 Opinion: Section V
 Opinion: Section VI
 Opinion: Section VII
 Opinion: Conclusion