STATE OF MINNESOTA HEWCU . - I EOURI -: am.- COUNTY OF HENNEPIN JUDICIAL DISTRICT Dale Scheffler TRANSCRIPT OF PROCEEDINGS Plaintiff, Case No. PI vs. Volume 3 Archdiocese of St. Paul and Minneapolis and Father Robert Kapoun, Defendants. The above-entitled matter came on for trial before the Honorable Gary Larson, one of the judges of the abcve--named court, and a jury, commencing on the 19th day of I January, 1996, in the Hennepin County Government Center, City of Minneapolis, County of Hennepin and State of Minnesota. APPEARANCES Jeffrey R. Anderson, Esq., and Mark A. Wendorf, Esq., appeared as counsel for and on behalf of the Plaintiff. Andrew J. Eisenzimmer, Esq., and John C. Gunderson, Esq., appeared as counsel for and on behalf of Defendant Archdiocese of St. Paul and Minneapolis. Frederick C. Brown, Esq., appeared as counsel for and on behalf of Defendant Father Robert Kapoun. Michael Dearing --Direct by Mr. Anderson 265 THE COURT: Good morning, ladies and gentlemen. Thanks everybody for being here and you may proceed, counsel. MR. ANDERSON: Thank you, Your Honor. BY MR. ANDERSON: Mr. Dearing, we left off yesterday Y%u had been telling the ladies and gentleman of the jury about a incident in the car. That was Father Kapoun's car? Correct. After that time did Father Kapoun take you any other places? We went a couple more times to his parents' house. Well, tell us about that. The next time you went to his parents' home, what if what happened? Well, I think you know there is a couple of incidents; one of the most vivid experiences was he took me to the house, and we you know ended up undressed and I remember we were laying by the fireplace. It was a stone fireplace on the carpeting, and the reason I remember this was that he asked me to touch him so I was touching him. Where were you touching him, Mr. Dearing? In the genital area. You can go ahead. And he had an orgasm or ejaculated or whatever, and I Michael Dearing --Direct by Mr.'Anderson 266 think the reason I remember this is because at that point after that he got kind of I felt like angry with me about you know what had I done. You almost have to understand my thinking at that point, but it was he got angry with me and it was like we quickly got dressed and left from there. Okay. And did you go to his parents' home again?_ Yes. And was there any similar conduct at the parents' home again after that? Well, there was the incident with my cousin. My cousin had been over at my house or was due to come over to my house when he had called my mother and wanted some help moving records, so of course my parents were like okay, so my cousin came along with us and he drove a green station wagon, and it was kind of a large front seat so he drove. I was in the middle and my cousin was to my right, and on the way over there he took my hand and put my hand on his crotch, and I remember I was more scared than nervous because of my cousin sitting there of what he might think so Was this in the car? Correct. Your cousin was in the back seat? Michael Dearing --Direct by Mr. Anderson 267 he was next to me. I am sorry. Go ahead. And this was all the way over to the house, and when we got to the house he put my cousin there was a crawl space in the back probably off the kitchen or something like that where things would be stored, and he put my cousin in there, and then he had me take records from the garage through the house through the living room through the kitchen to the crawl space. I need to back you up a moment so they understand. Were you in this case was Father Kapoun asking you to help him move some records? Correct. From a location to another location? Correct. Okay. Record albums we are talking about? Correct. And so he had you and your cousin give him some help? Yes. Okay. Go ahead and tell the ladies and gentlemen of the jury what happened. 50 my cousin was in the crawl space and I would go from the garage to the house to the crawl space with the records, and as I was carrying the records, you know which I took as many boxes as I could, I suppose Michael Dearing -Direct by Mr. Anderson 268 two, I don't know. I would be walking with the records like this and he came up behind me and put his hands down my pants as I would walk to the crawl space, and then he would have me on the way back reverse with me putting my hand down his pants on the way back. Are there any other instances of when that happened, Mr. Dearing, was he still at St. Raphael's? Correct. Okay. And he was transferred in 1974 to the Home of Good Shepherd? Mm hmm. Did Father Kapoun come and take you places after he was transferred to the Home of the Good Shepherd? Correct. We went to the lake once. Now, that may have been right before he was transferred. I am not positive. When you say the lake, is that his cabin at Cold Spring? Correct. Tell the ladies and gentlemen of the jury what happened there? We were going up there for the day and we got to the lake. It was probably I don't know 70s or something, but he wanted to go swimming and I didn't have a suit, Michael Dearing --Direct by Mr. Anderson 269 and he said that was okay, so we went swimming in the lake and there was fondling and such in the lake. And we came out of the lake and he wanted to sit on the grass for awhile, and I was it wasn't something I wanted to do mainly. I didn't like being outside without my clothes on but also there were like bees around. I was real uncomfortable and he took me into the house and I assumed I guess that something was going to happen, but he suddenly changed his mind and in my opinion 1 don't know and we left.' Okay. And did you go to the cabin more than once? Just once. All right. Did he after he went left St. Raphael's and was assigned to the Home of the Good Shepherd did he have on any occasions take you to his new residence at the Home of Good Shepherd? Yes. Why don't you tell the ladies and gentlemen of the jury about that, what happened if anything? The best of my memory would have had to have been around this time of year because I remember the basketball tournament was on TV, the high school I believe it was, and he had a room at Good Shepherd that we went to, and you know at this point in my life he was asking me questions about if I had had any Michael Dearing --Direct by Mr. Anderson 270 -sexual experiences and such, and he wanted to know more about anything that I had done and I had on occasion there he asked me into the shower and we were in the shower and he was asking me if I had ever had oral sex with anyone, and I said, you know, that I had but and he wanted me to do it to him and see what and I remember going down on my knees and I I was like afraid if I did that I couldn't do it. swear I would go to hell. That was my thinking at that point. I was so terrified about what was what would happen to me I guess. So did you not do what he asked to you to do? I couldn't. Did Father Kapoun ever rub up against you with an erection or attempt to place his penis in your rectum? He rubbed up against me in the shower at Good Shepherd. That's what I remember most about him. When we would get out of the shower we would sit on the bed. That's why I remember the basketball tournament was on, because we wanted to watch that so we would sit on the bed. Okay. You were-present I think when Father Kapoun testified Correct. were you not? Michael Dearing --Direct by Mr. Anderson 271 Correct. Do you recall he testified that in connection he testified to a lot of things but in connection with the Home of Good Shepherd he testified under oath that he took you there and picked you up at your home? Correct. Is that correct? Correct. At that time your home was in Correct. That's your family home? Correct. And he brought you there for a total of 15 minutes? That's not correct. How long were you there? Time to me now is several hours I would assume. And he said among other things that he didn't do anything with or to you there? That's false. .Mr. Dearing, any other instances of sexual contact by Father Kapoun with you that you have not told us about? There is some, yeah. Well, I don't like having to ask this but would you please tell the ladies and gentlemen of the jury about Michael Dearing mDirect by Mr. Anderson 272 it? Well, I was an altar boy also and I remember one incident in particular that before mass we would Put on I don't know what it's called an outfit or something you know and -- I think it's vestments. Okay. And behind the altar area in the church was like the back room or whatever where people got dressed and all you would do is come in your clothes and put this over, and I remember it was a day I was going to be serving mass with someone else. He had already put his stuff on and was waiting to go out and I was back putting my stuff on. Father Kapoun came in and in his church stuff already on and put his hands down my pants before we went out to do mass. I remember that. I was also in his quarters at St. Raphael's a couple of times too. Did things like that happen in his quarters at St. Raphael's, the rectory? Correct. When Father Kapoun would do these things to you, Mr. Dearing, would he talk about it when he was doing it? What do you mean talk about? would he say things to you while he was doing While he was abusing you? VIC 11>' Michael Dearing --Direct by fir. Anderson 273 About sex in general or -- Yes. About anything. Not necessarily while he was doing it. Afterwards, yes, but not usually while he was doing it, no. Did he ever tell you to tell no one and keep this a secret? What he talked to me about was about mw and I think that's what confused me so much is he talked about what I was doing was wrong. Okay. Mr. Dearing, did you tell anybody about what it was he was doing with you? Eventually, yes. At the time? No. And when is the first time you told anybody that Father Kapoun had done these things or any of these things? Approximately 1988. Mr. Dearing, what prompted you, what made you disclose this in 1988? I got up as usual for work one morning and I picked up the paper, and I was there was an article in the paper about another priest from St; Raphael's and there is a comment in there that this priest had been accused of something. There was a comment in there, a 35' Michael Dearing --Direct by Mr. Anderson 274 denial or something, and it mentioned that there was a suit going to occur out of this incident or whatever and it listed you as the attorney. And so what did you do? I knew I could say something about what it was so I called you. Was that was I the first person you ever told about this? Correct. And that article you read was about another priest, not about Father Kapoun? Correct. Mr. Dearing, I represented you, didn't Correct. And in bringing the lawsuit? Yes. Have I ever or anybody in my office ever told you anything about what Father Kapoun has done or is alleged to have done to any-other kidt No. Have you talked with any other kid or victim of Father Kapoun's abuse about what happened to them? No. MR. ANDERSON: I have nothing further. THE COURT: You may inquire, counsel. Michael Dearing - Cross by Mr. Eisenzimmer 275 MR. EISENZIMER: Thank you, Your Honor. CROSS EXAMINATION BY MR. EISENZIMMER: Mr. Dearing, I take it then if the first time you told anyone was in 1988 and you talked with Mr. Anderson's_ office, I assume then that you did not inform anyone in the Archdiocese prior to speaking to Mr. Anderson? No. So to the best of your knowledge the Archdiocese would not have known about your experience prior to your talking to Mr. Anderson? To the best of my knowledge, yes. No further. MR. EISENZIMMER: Thank you. questions. THE COURT: You may proceed, Mr. Brown. CROSS EXAMINATION BY MR. BROWN: Mr. Dearing, we met back in 1989? Correct. And back then I was representing Father Kapoun in another lawsuit, is that correct? Correct. THE COURT: Mr. Dearing, you are faced this way now so you are going to have to speak louder. You were faced more the other way before. You are going michael Dearing -- Cross by Mr. Eisenzimmer 276 to have to up your voice level. THE WITNESS: Okay. BY MR. BROWN: I will give you time to answer too. Maybe I was jumping. But you answered yes? Yes. And just to clear the air, in that lawsuit my client Reverend Kapoun acknowledged that he did abuse you and that he did do some things which were wrong and in fact reprehensible, you will agree with that? Pretty much, correct, yeah. And you and Father Kapoun may disagree on some details but the bottom line is he admits that he did some things he shouldn't have done, isn't that true? He admits very little but yes, yeah. I guess that's basically Well, I went back through your testimony and my notes. Isn't it true that you and Father Kapoun were together in a variety of situations for the better part of two years? Pretty much, correct. Yeah. And Father Kapoun has acknowledged that in that prior lawsuit, correct? Yes. And during that two--year period there were many times Michael Dearing -- Cross by Mr. Eisenzimmer 277 that Father Kapoun invited you to go swimming at St. Thomas? Correct. Many times that you went swimming at the St. Paul Seminary? Correct, yes. And I take it that now again we are back in 1973, 1974, isn't that right? Yes. And back at that time on some of those occasions did Father Kapoun encourage you to swim in either or both of those swimming pools without a bathing suit on? Yes. Did he swim also without a bathing suit on? Yes. And you will agree, won't you, that there were some other people, men, boys, students, but of the male sex who were in that pool and also didn't have swimming suits on? No. No. Not in the pool. was there any prohibition to your knowledge to swimming without a swimming suit on in those pools? I have no idea. .You didn't feel it was wrong, did you, to swim in that swimming pool without a swimming suit on? Michael Dearing -- Cross by Mr. Eisenzimmer 278 I suppose uncomfortable maybe. I don't know. But you did it? Yes. And others were there? Not in the vicinity of the pool. So then there were also times when you would go in the sauna with Father Kapoun? Yes. And on those occasions I take it he encouraged you to go in without a swimming suit on? Yes. And there would be other people in the sauna from time to time? Occasionally, yes. And they would perhaps have towels draped on them? Yes. During that two years, isn't it true that about three quarters of the time or so Father Kapoun was still a pastor at St. Raphael's? Three quarters of the time, yes. And then the final 25 percent of that two--year period or six months he was over at the Home of Good Shepherd? That's probably close, yes. During that two years then he would be calling your 'Michael Dearing -- Cross by Mr. Eisenzimmer 279 house fairly frequently and asking to speak to you? I don't know so much to speak to me but because sometimes I would just come home from school and his car would be in the driveway so my mother perhaps. Isn't it true you did call him from time to time? No. I was 12 years old. I would see him in church because I served quite a bit, but call him, no. Well, after awhile isn't it true that you started to tell your parents that to tell Father Kapoun that you weren't home when you were home when he would either call or be in your driveway? I never I don't even recall telling my parents anything like that of saying I am not home, no. I don't it's not something I recall doing I guess. Well, my recollection of some of your testimony previously was that there came a time when you were trying to separate yourself from Father Kapoun and not have him bother you anymore, isn't that true? I remember feeling that way but I can't even fathom or remember saying anything like that to my mother but I remember feeling that way though so, you know. And Part of the routine with Father Kapoun let me put it this way. A significant part of the routine was to be in the shower with Father Kapoun? Yes, I suppose, yeah. UJIU ao;v:o:u Michael Dearing -- Cross by Mr. Eisenzimmer 230 A lot of the things you have told us about occurred in the shower or after you came out of.the shower without clothing on? You know I guess if you want me to put a time on it I would say 25 percent of the time. I don't know. Something like that, yeah. And in fact that was the reason that several times you <> Now, you talked about a severe deficit in verbal skills and made reference to a verbal Mm hmm. Did you quantify or some test that you administered that quantifies by some measure his verbal Yes, and I would like to place this in the context of how we define what is average. We use numbers such as 90 to 110 to define mid average, and if we wanted to talk about a broad average range, we might talk about 85 to 115 expanding it a little bit. Generally however numbers in the 805 would be considered low average. Numbers 1, 10 and above would be high average, and Dale's verbal IQ was at 83, close to the bottom of the low average range. Okay. Ms. Rice, how does a severe deficit in the verbal skills that you detected in bale Scheffler translate to somebody's day-to--day life? There are two pieces to this. I need to add that his great strength in the visual spatial performance abilities created a situation where there he was functioning in the high average range whereas with his language the low average Cindy Rice -- Direct by Mr. Anderson 289 range. This inhibited his development of language skills for reading, for writing, for communicating and has severe implications for adjustments, especially wherever there is that classic learning disability profile where you are so good in certain areas and so weak in others, itfs very hard to understand one's self and why one can do some things very well and others seemingly almost not at all. Based upon your education and your training and your experience and in particular on your testing and assessment of Dale Scheffler, are you able to tell how or when he developed this severe deficit in his verbal skills? One would assume that the longuterm memory problems that he shows, recall the school type information, facts, his vocabulary development, which is very low, would indicate a learning disability that existed perhaps from birth, likely from birth. That would be typical. Okay. And we don't have his school records and can't get them because they were destroyed by the school.up through like the sixth grade? Okay. And we do have you may have seen, I don't know, some of the school records after the sixth grade. Is Cindy Rice -- Direct by Mr. Anderson 290 it fair to say and would you say, Ms. Rice, that certainly this severe deficit that you have described in Dale Scheffler would affect his ability in school, in particularly certain areas? MR. EISENZIMMER: I am going to object, Your Honor. No foundation that she has reviewed his education records. THE COURT: What is the question again? MR. ANDERSON: would this severe learning deficit that you assessed and found in Dale Scheffler affect his school work? THE COURT: The objection is overruled. THE WITNESS: One would assume that it would. BY MR. ANDERSON: Now, Ms. Rice, what concerns us here is something that happened in roughly 1981 to Dale Scheffler when he was an adolescent. Mm hmm. And it was sexual abuse. How if Dale Scheffler was sexually abused in or around 1981, how would that have affected or influenced a boy who already had a severe_ learning or verbal deficit? MR. BROWN: Objection. THE COURT: Approach. (Discussion at the bench out of the hearing of Cindy Rice -- Direct by Mr. Anderson 291 the jury.) BY MR. ANDERSON: Ms. Rice, in your training and education and experience in the area of learning disabilities, do you have any background or information about how or if trauma in an individual's life such as sexual abuse can or does influence a learning disability? Yes. What we know is that from my observation and from ganeral literature, that individuals who have a learning disability are very sensitive to things that happen to them. For example, having a cold will cause the learning disability to appear much more severe. Any other event that happens to traumatize the individual takes energy it seems away from one's learning ability or performance ability in the weak area. How then in if Dale Scheffler were was sexually abused or traumatized, or traumatized in 19 in or around 1981 have affected Dale Scheffler in connection with his existing learning disability? MR. BROWN: Objection, Your Honor. MR. EISENZIMMER: I would object too, Your Honor, and ask the Court's indulgence to ask questions to lay foundation for further objection. THE COURT: You may. Cindy Rice -- Direct by Mr. Anderson 292 BY MR. EISENZIMMER: Ms. Rice, my name is Andrew Eisenzimmer and I represent the Archdiocese of St. Paul and Minneapolis. Did you in working with Mr. Scheffler administer any tests to him that would attempt to determine-the effect on his what you have described as classic and severe learning disability as a result of sexual abuse? No. And Ms. Rice, did you mate any attempt in your evaluation or report of Mr. Scheffler to determine what affect on Mr. Scheffler's classic and severe learning disability was caused by sexual abuse? No. MR. EISENZIMMER: Your Honor, I would object that the question is lacking in foundation. THE COURT: All right. I want to put this objection on the record out of the hearing of the jury, so if you would all just step out in the hall for just a second, please. Don't go anywhere. This will just be a moment. (The following discussion was held out of the hearing of the jury.) THE COURT: Who wants to go first?' Go ahead, Cindy Rice -- Direct by Mr. Anderson 293 Mr . Anderson . MR. ANDERSON: Maybe I should ask a question of the witness. THE COURT: All right. BY MR. ANDERSON: Ms. Rice, is there a test that can measure or does quantify the influence of a trauma 14 years before the test and how that affects a pre--existing learning disability? Not to my knowledge. THE COURT: Make an offer of proof of what you expect she is going to testify to, Mr. Anderson. MR. ANDERSON: Okay. Your Honor, my offer of proof is that she is an expert in learning disabilities, their etiology THE COURT: Their etiology. Do you expect me to understand that word, Mr. Anderson? MR. ANDERSON: What causes disabilities, when they are caused, and in this case she has indicated that his disability, learning disability goes back very early on, perhaps to birth. However, she also is aware that trauma influences pre--existing learning disabilities and I expect the witness will testify that if Dale Scheffler suffered trauma in 1981, it made it worse, it exacerbated and/or aggravated that Cindy Rice -- Direct by Mr. Anderson 294 existing condition. THE COURT: Mr. Eisenzimmer. MR. EISENZIMMER: Your Honor, the witness with all due_respect to her has acknowledged that there is no test to determine the effect of the sexual abuse on his classic and severe learning disability. She has also indicated that in her evaluation and report of Mr. Scheffler she made no attempt to determine the effect on his classic and severe learning disability of any sexual abuse, and now in response to Mr. Anderson's question about whether there is a test that exists that would somehow measure that effect, she has indicated there is no such test, so not only do I think the witness has not laid any foundation for the testimony that Mr. Anderson has indicated in his offer of proof that he would expect her to testify to, but under the Frye and Daubert requirements for admission of expert opinion, they have to be based upon scientifically reliable and broadly accepted measures in the field, and in her indication that there is no such test that would measure this clearly to my mind suggests that the matter will not reach any level of acceptance under Frye and Daubert so I think it's clearly inadmissible. THE COURT: Mr. Brown? Cindy Rice -- Direct by Mr. Anderson 295 MR. BROWN: Your Honor, I would also object on the lack of foundation and suggest that at the very least there should be a baseline from which to compare prealleged trauma and post alleged trauma, and as I read the report and hear the testimony, there is nothing to compare what Ms. Rice discovered in 1995. That's all she has is an evaluation of 1995. Now, we are dealing with trauma of different types as well from 1981 to 1995. I will suggest that there will be testimony later about drug use and alcoholism and other problems all of which I am sure the witness would have to concede would have some impact or at least masking of test results, plus we have no comparative analysis or data that would predate 1981, so I would say it's completely lacking in foundation, Your Honor. THE COURT: Counsel? MR. ANDERSON: There is no test that has been developed by anybody anywhere that quantifies or . measures the effect of sexual abuse. There is in the area of learning disabilities as this expert has testified literature and a clinical experience that indicates that trauma influences the existence of or the effect of learning disabilities on individuals. In this case this witness is the most qualified to Cindy Rice -- Direct by Mr. Anderson 295 give testimony in this area and meets the Daubert or Frye standard in all regards. I should add that Mr. Eisenzimmer in his opening statement has already suggested to this jury that the source of his problems is the learning disability, and I should add that he intends to call a who is not an expert in learning disabilities who in his opinion has proffered among other things that the source of Mr. Scheff1er's problems is unclear but it is his opinion that a large part of his problems are as a result of the learning disabilities, and so the opinion of this witness on its own stands and is probative and meets Frye and Daubert and is particularly probative and Pertinent given the defense that one or both of the defendants are offering in this instance. THE COURT: Anything else? MR. EISENZIMER: No, Your-Honor. MR. BROWN: Yes, Your Honor. I have a learning disabled child and I know that there is a baseline that is established and there are periodic tests given and EISs I think they are called that are prepared and they go back for many years, and it's a very easy analysis to make as the child progresses and his evaluations are_made, and if there is a blip on Cindy Rice -- Direct by Mr. Anderson 297 that baseline, if that blip was in '81, there might be some support for the opinion that Mr. Eisenzimmer seeks to offer, but without that we just can't compare it. MR. EISENZIMMER: In that regard, Your Honor, Mr. Anderson has acknowledged here that the educational records prior to the sixth or seventh grade don't exist and the witness hasn't reviewed apparently any of the educational records. THE COURT: Anything else? MR. ANDERSON: No. THE COURT: The objection is overruled. (End of discussion out of the hearing of the jury. Jury returned to the courtroom.) THE I am sorry to send you out in the hall. There is this little room back here and I hate that little room and it's too claustrophobic. I think you enjoy it more out in the hall. You may proceed, counsel. MR. ANDERSON: Thank you, Your Honor. BY MR . ANDERSON Your Honor, I forgot the precise question so I will try to ask it again. Ms. Rice, based on your training and your education and your experience and particularly as a specialist in learning disabilities, Cindy Rice -- Direct by Mr. Anderson 298 how would the sexual abuse of Dale Scheffler in 1981 have affected his pre-existing learning disability? MR. EISENZIMMER: Same Objection, Your Honor. MR. BROWN: Same Objection, Your Honor. THE COURT: I have ruled on it. The objection is overruled. THE WITNESS: Any trauma that occurs to someone with a learning disability is likely and would be expected to exacerbate the manifestations of the learning disability. BY MR. ANDERSON: You say exacerbate the manifestations. Does that mean make it worse? Makes the more evident. Okay. And how so? Concentration issues often arise that make a person who already reads poorly read less well. A person who writes poorly writes less well. And in the case of Dale Scheffler, he beginning in somewhere around 1982, '83 perhaps, began the use of drugs, first alcohol and then drugs, and used alcohol and drugs big time for many years, How does the use of alcohol and drugs to excess affect or influence a pre--existing learning disability? . MR. EISENZIMMER: Objection, no foundation. Cindy Rice -- Direct by Mr. Anderson 299 Calls for speculation. THE COURT: I think you need to establish more foundation in this particular area, counsel. MR. ANDERSON: I shall, Your Honor. BY MR. ANDERSON: Ms. Rice, is there any based on your training, your education and experience, is there any literature, research or any clinical experience that you have had that has led you to be able to tell us about the affect of drugs and alcohol on pre-existing learning disability? well, certainly during the time of use there would be significant affects. I guess before I ask you that I need to know how you know that. How we or people experts in your field know that? Literature indicates it. observation of working with clients indicates it. It's my understanding that there are residual effects for periods of time, certainly in the short range after a person has stopped drinking or using drugs. The information about the long--term effects to my knowledge are not well established at this point. So how in your opinion did the use and/or abuse of drugs and alcohol influence or affect any pre-existing Cindy Rice Direct by Mr. Anderson 300 learning disability in Dale Scheffler? My MR. EISENZIMMER: Your Honor, object. Speculative. Already_testified the longwterm effect is not well established. THE COURT: The objection is overruled. WITNESS: The likelihood that there would be residual effects, some residual effects should be considered. The severity of his performance problems is evident. The etiology as relates-to the drug and alcohol use would be expected to be prominent soon after use and less -4 much less so after use had been discontinued. BY MR. ANDERSON: Okay. Now, can anything be done now? Dale is 28 years old now and he was 27 when you saw him. Can anything be done with Dale now by experts in your field to help him do better in these areas where he has such a severe deficit, particularly verbal skills? It would be a two--pronged effect or two--pronged approach where counseling issues are present. It is very important to address counseling issues at the same time as basic skills development goes forward. And this needs to be done in a context that the individual is hopeful that job opportunities or Cindy Rice -- Direct by Mr. Anderson 301 performance in personal life can be improved by the skill development work. With skill development work performance can be improved. And what kinds of things can be done? Let me ask you this. Do you have any opinion to a reasonable degree of certainty in your field on whether or not anything can be done in connection with Dale Scheffler to improve his severe deficits? Writing skill deficits can be improved. Reading skill deficits can be improved through instruction. Depending upon the area in which he wished to perform, the instruction can be targeted toward the demands of that particular performance area such as writing a report, writing a memo. And is there do you have a recommendation for a program for Dale? Yes, I did have. What is it, Ms. Rice? I recommended that it should combine individualized tutoring at an agency such as ours that specializes in learning disabilities, that it should include work with computer lab software, and it should include daily application of skills the work place has. As I described earlier, the application would be an important part. Cindy Rice - Direct by Mr. Anderson 302 And what is the cost of that? The instructional cost at this time is $35 an hour for the individualized instruction. And how long would you expect Dale to get and receive this individualized instruction in order to improve this severe and long--term deficits you have described? A program of 120 hours of instruction would likely put Dale at the level where continued improvement would be quite gradual after that. It wouldn't mean that he could not continue to improve, but after that point the gains would probably be relatively small. Are you saying then that beyond the 120 hours that your program affords, there is not much more that can be done to improve the deficits that you have told us about? I was speaking in terms of in a general situation one would typically with his profile look to the maximum skill gains being made within 120 hours. It's not impossible that in a specific situation of need, targeted instruction could not be helpful at a later time on a shorter term basis. Thank you. THE COURT: Does that mean you are done? MR. ANDERSON: I am done. I have no further questions. Cindy Rice -- Cross by Mr. Eisenzimmer 303 THE COURT: Thank you. I couldn't tell. You may proceed, counsel. MR. EISENZIMMER: Thank you, Your Honor. CROSS EXAMINATION BY MR. EISENZIMMER: Ms. Rice, in talking about the individualized instruction that you had recommended for Mr. Scheffler and you have indicated that one of the recommendations you have made is a program that would be about 120 hours of that individualized instruction. I take it that this would assist him with respect to not only that classic and severe learning disability that existed perhaps from birth but also would help him for any problems in learning that might have been exacerbated to use your word as a result of any sexual abuse? I think it's important to look at the combined effect of a counseling program or whatever is going on to address those the issues that you are bringing up here and to look to the educational program for academic skill gains and improve performance in reading and writing specifically. I take it what you are saying then is is that any individualized instructional program should be coordinated with whatever therapeutic counseling he is Cindy Rice -- Cross by Mr. Eisenzimmer 304 having with Dr. Bera or some other therapist? It would be essential. But to go back to my original question, the individualized instruction that you are recommending to assist Mr. Scheffler would deal not only with the problems he is experiencing that might have been exacerbated by the sexual abuse but they would deal with the learning disability that perhaps existed from his birth. You can't isolate one from the other? The package does go together. The person can become more hopeful once experiencing some success in skill development. Depending upon how responsive the 'individual is to treatment and how hopeful the person is about eventually making the skill gains is a critical piece. That's very interesting. Let me see if I understand that correctly. I think what you are saying is that_ if Mr. Scheffler works very hard with his therapist to deal with his therapeutic issues of anxiety, difficulty in concentration and those kinds of things, those would be expected to have a corresponding positive effect on his work in the individualized instructional program that you have recommended? I can understand that from the reverse that is if he were not in a counseling program and so forth and so Cindy Rice -- Cross by Mr. Eisenzimmer 305 forth that the educational programming would not go forward positively. I don't know that I could speak precisely to positively to what you have just said. would you repeat it maybe. Well, you have testified that any trauma is likely to exacerbate and exacerbate means what? Make worse. So you are testifying that any trauma, sexual abuse I think you have referred to a person having a cold, but any trauma is likely to make worse the manifestations of a learning disability, correct? Mm hmm. So if I were to have a learning disability and I experienced some trauma, it's going to make it worse, correct? Correct. And if in some fashion then through counseling I am able to diminish the effects of the trauma, presumably then that would diminish the exacerbation of the learning disability as well, correct? If performance improves I suppose we could say that that demonstrates, that speaks for itself. My curiosity is to the extent that a person experiences trauma such as sexual abuse, what is it about that trauma that exacerbates the learning Cindy Rice -- Cross by Mr. Eisenzimmer 306 disability? Is it because it has some residual effect such as anxiety or diminished concentration and those kinds of things? one would expect that those factors might well be present, yes. And if present, would make worse the learning disability? The manifestations of the learning disability are worse when a person is anxious certainly. And when you talk about manifestations, you are talking about the would become more evident? Right. And when you have a learning disability, what are some of the of that learn disability? Inaccurate reading, inaccurate writing. Okay. So if.a person feels anxious, their reading is going to be more inaccurate, their writing is going to be more inaccurate? As compared to the time whenever they were -- Not anxious? Less anxious. So if they go through therapy with a counselor and as a result of that therapy they are helped to diminish their anxiety, then presumably we might see some corresponding improvement in their reading and writing Cindy Rice -- Cross by Mr. Eisenzimmer 307 I take it? Improvement happens and when performance improves we don't always know the reason for the performance improvement when the person is in a joint program. We know that perhaps both parts, the skill development and the counseling contribute to improvement. And I take it that there is no test that you can administer to Mr. Scheffler to determine whether or not any alleged sexual abuse has exacerbated the manifestations of his learning disability? I know of no such tests And in your evaluation and report you have made no attempt to measure in some fashion any exacerbation of the manifestations of his learning disability, correct? The report does not speak to that. Now, let me talk about the report for a moment. Do you understand that when Mr. Scheffler was in school that be prior to graduating from high school dropped out of school for a period of time. Did you learn that as a result of your background discussion with Mr. Scheffler? Let me see whether the notes show that. I can't remember whether he orally shared that with me or not. In any event he did share with'you that he was a high DJ :45Cindy Rice -- Cross by Mr. Eisenzimmer 308 school graduate? Yes. And he also shared with you the fact that while in school he had received special education services for reading and writing? Correct. And by that I assume that meant he was getting some kind of learning disability assistance while in school? Yes. You also learned I assume from Mr. Scheffler that he did complete despite this learning disability a two--year vocational technical program in tool and die making? Yes, consistent with his strong visual spatial skills. And by that statement I assume what you are saying is is that his visual spatial skills are strong and thus tool and die making is a good field for someone with strong visual spatial skills? I was saying that success in a vocational technical program that drew heavily on visual spatial skills would be more likely to be expected. Now, I expect that Dr. Bera when he testifies will indicate that he observed that Mr. Scheffler appeared to have high mechanical aptitude. Is that something Cindy Rice -- Cross by Mr. Eisenzimmer 309 that you would agree with? That would be consistent with his profile. And again that profile is is that he has strong visual spatial and perceptual Yes. And in fact his his strength in the visual spatial and perceptual field is so strong that at times that has allowed him to compensate for his weaknesses in the verbal area, correct? In terms of giving a person a possible livelihood for example, yes. And you would agree that he for example does solidly average I think your report says in the math area? Correct. And you would agree that math is his strongest academic skill area? Yes. Now, one of the conclusions you have reached as you testified is that he has a classic and severe learning disability. What do you mean by the term classic in that regard? The difference between the verbal IQ and the performance IQ being so great. A difference of what we call one unit of measurement, one standard deviation would be significant. In his case it would Cindy Rice - Cross by Mr. Eisenzimmer 310 be two standard deviations of difference. And I think what you are saying is You tested his verbal IQ, correct? Yes. And I believe that the scoring of his verbal IQ was 83? Correct. And as you have testified, that's the low average level? Thatvg right. But yet his performance IQ was 114 by your testing, correct? Correct. And that's in the high average level? That's correct. And what does performance IQ measure? Does that measure the strength of his visual spatial perceptual skills? Correct. So again these tests demonstrated that his reading and writing those verbal skills is low average but yet his visual spatial perceptual skills are the high average? His verbal skills are low average and the other high average. And what you then do is combine those in some sense to Cindy Rice -- Cross by Mr. Eisenzimmer 311 determine a full scale IQ and in this instance that ful1--scale IQ is 94? That's correct. And that is average? Yes. Neither high average nor low average? It's average? Right. And I think that one of the things you indicated is what you look for is uneven development, and I take it that's what you are talking about is unevenness between his verbal skills and his performance skills as measured by the IQ tests? That is one piece. The other piece would be related to achievement. And did you make any attempt to determine from an achievement standpoint whether there was a similar uneven development? Yes. And tell me how you did that? Math testing was administered and Dale was average in math skills. Testing in reading and written language was administered and Dale was at a level of a very low level in reading and in written language. And again I assume that that was not surprising given the fact that you were aware that in high school he Cindy Rice -- Cross by Mr. Eisenaimmer 312 had received special education services for reading and writing? Actually it was surprising. The I rarely see scores as low as Dale's in reading and written language in someone who has his overall ability,' learning ability. Now, I think you did remark that one thing that Dale has been able to do is to utilize his ability to get comprehension from the context of what he is reading even though he might have difficulty with individual words here and there? The difficulty with individual words is so striking that it was surprising that he was gaining comprehension from reading. And one of the ways that he enhances his ability to comprehend what he is reading is to look at words in a context to try to get some meaning out of what he is reading? That helps, yes. But as you indicated I think he does do well in listening comprehension? In the measure that was administered where he listened to two sentences and provided an answer, he was average as compared to when he read two sentences and provided a word where his skills were low. Cindy Rice -- Cross by Mr. Eisenzimmer 313 Now, the profile that you have measured and analyzed of Dale Scheffler, that is a profile that suggests that he would be at a disadvantage in an educational program that was a traditional one where one had to depend on reading and writing in order to achieve, correct? Correct. So what would be needed to assist him is some more nontraditional educational program, perhaps such as what you have suggested, is that a fair statement? Depending upon what his goals would be, I am just -- my I speak just to basic skills development. don't speak to training that goes beyond improving basic skills. But he did talk to you about one of his goals being able to run a construction operation better? Yes. And some of the things that you recommended in your report were things designed to help him do that, is that a fair statement? Since that would be that seemed to be the goal that he had. It would be our job to try to target the instruction to assist him to reach his goal. And he can do that first by beginning to better understand what areas he is strong in and what areas Cindy Rice Cross by Mr. Eisenzimmer 314 he is weak in, correct? Mm hmm. And as Yes. And as we have discussed, one area he is strong in is the visual spatial perceptual skills? Yes; So if he draws on that strength that will assist him in dealing with this learning disability? That is useful to the extent that the tasks are such that he can draw upon those skills. And other things I think you have suggested is that he might use something as obvious as a hand~he1d tape recorder to record reminders or other information because he has difficulty in his writing skills? Yes, I would recommend that, mm hmm. You also recommended that in terms of this individualized instructional program he might work with a tutor to develop various things such as a check list or some kind of preprepared materials that might be of assistance to him in running his construction business? Yes. For example, if he has certain repetitive tasks such as hiding or writing quotes or something like that he Cindy Rice -- Cross by Mr. Brown 315 could use some forms that were created with some assistance mm to assist him in that regard? Yes. And in assisting him it would help make up the reading and writing deficits that he does have? It would enable him hopefully to compensate to some degree. I MR. EISENZIMMER: No further Thank you. questions. THE COURT: Mr. Brown. CROSS EXAMINATION BY MR. BROWN: Do you have your file here? Yes, I do. Do you have the raw data and the information that you relied upon? Yes. Could I see it? This is the computer--generated scoring on the Woodcock Johnson revised achievement test. What other things do you have in your file? This is the Wais--R, the IQ protocol. That was completed by Mr. Scheffler? Yes. Can I see that? Cindy Rice -- Cross by Mr. Brown 316 That was recorded. His responses were recorded. THE COURT: We are going to take the morning break at thisfltime. You can look at everything in the file, Mr. Brown. It will be about ten minutes. (Recess taken.) THE COURT: You may proceed, counsel. BY MR . BROWN: Your Honor, and Ms. Rice, over the break I had an "opportunity to look at your file, and am I correct in assuming that Exhibit 6 which is the report that you have been telling us about, this contains your background information obtained from Mr. Scheffler that summarizes the matters that you have found to be important and significant for your diagnosis and also includes the testing that you did and your interpretation of that testing and finally sets forth your diagnosis? Yes. So that raw data and the computerized materials and everything that's in this file that I have now looked at would be incorporated within this report? Not all background information is incorporated certainly word for word but the key information. Or the significant information that you needed in order to make your diagnosis for this patient? Cindy Rice -- Cross by Mr. Brown 317 Yes. That's correct. I couldn't see a date on Exhibit 6. You have it in front of you? Excuse me. Were you referring to this? What is the date of Exhibit 6 when it was prepared, when it was transmitted? There typically is a three--week interval between the date of the evaluation and the date shown here and the date of transmittal to the client. But there is no so you don't know when this was sent to the client? Without the file in front of me, I don't know. Okay. I do need it back but if you could just see when that went to your client or possibly whether it went to your client. Maybe it didn't go to the patient? I don't have I have a notation here that the client did not come personally to talk over the results with me. He and I talked by phone. So you haven't seen Mr. Soheffler since May of 1995? Right. Thank you. And so I don't think you answered my question. when did the report go? My understanding was that I transmitted it to his counselor for purposes of his counselor sharing it Cindy Rice.-- Cross by Mr. Brown 318 with him. So you didn't share it with your with Mr. Scheffler? We talked about the key points certainly in our phone conversation. I did not have a full feedback conference with him by phone. Did you make some changes to the report as you were sending it on or after you first sent it on to Mr. Bera? I don't recall that I did. Does it show there that I did? I can't tell? My writing is not clear. There is no notation here that says that I made any change in the report and I don't recall making any change in the report. So as I understand it, Ms. Rice, you received a call from Mr. Bera. He wanted you to prepare an evaluation and then a report on someone he was counseling and that was Dale Scheffler? I didnlt have the initial contact. The scheduling person would have had that contact. Okay. And then it says that you talked to Mr. Bera briefly around August 1, 1995? Yes, mm hmm. what was the purpose of that conversation? Cindy Rice -- Cross by Mr. Brown 319 We make efforts to have individuals who have been tested come in and talk with us about the test results and we might have scheduled such conferences for_Da1e on a couple of occasions or not. That would be usually what would have happened, and then if we still have not had the conference with the client, we talk to the referring party and ask them to what the situation is and can they encourage the client to be able to make the appointment and come for results. So when it says, "Talk to Bera briefly again re can Dale come from Yes. For feedback? Yes. And it says no underlined and then says, directly with client"? I wanted to make that for internal purposes, because we have a charge to individuals for further consultation beyond the one that comes with the report, and I wanted it to be recorded there that he still had access to an opportunity to go over the test results with us at no charge. This report does not make reference to any IEPs or testing that may have been done on Dale Scheffler at a younger age, isn't that true? Cindy Rice -- Cross by Mr. Brown 320 That's correct. So you made no effort or were not requested to make an effort to obtain any of the evaluations that had been done on Dale Scheffler previously? Our scheduling -- Isn't that true? I don't I typically don't initiate that. Our scheduling person makes every effort to get all previous testing prior to our administering our examination. So whatever happened you didn't have anything in your file beftie you did your testing? No. In April or May of 1995, is that correct? Correct. And you understood after speaking with Mr. Scheffler that he did participate in the special learning program at least in high school, isn't that true? Mm hmm. And you know and knew then that as part of that program the people who work with especially special learning students are required and do prepare periodic assessments similar to what you prepared? Correct. And isn't it normally your practice to go back and get Cindy Rice -- Cross by Mr. Brown 321 all of the prior evaluations and testings and to include those as part of the report when you are asked to make a diagnosis? Schools typically maintain full records for five years. Records prior to that time we would likely have to get from the parent or from the client because it would no longer be retrievable from the school. But you would like to have as much information as you can possible.have, isn't that correct? Wherever there is prior testing, we would like to have access. And you knew there was prior testing involved with Mr. Scheffler, correct? Right. And for whatever reason, I am not trying to put blame on him, you had none of that testing available to you prior to preparing the report that's new Exhibit 6? It would be unusual for a person who is age 28 to have such records of prior testing accessible. No, but the question was you do not have any of that considered in your report which is Exhibit 6? Correct. Correct. Okay. Then looking at Exhibit 6 a little bit: it's important for you to put into this report eVEURIYthing that you find is significant and important Cindy Rice -- Cross by Mr. Brown 322 for you to prepare an appropriate and an accurate diagnosis, correct? One does one's best to do that. And looking then under background information you note that as follows: Dale has four years of sobriety. You felt that was significant for purposes of your coming up with an accurate diagnosis, isn't that correct? I think it was important in terms of looking at long--term planning which is another issue that we are looking at. Not just diagnosis but we are looking at the person's prognosis for gaining for doing retraining or whatever. Well, you had earlier told us that alcoholism or problems with alcohol and drugs could be factored into opinions that you would make, isn't that true? Recent use would be something that we would be considering in the diagnosis, and I will mention here about the sobriety, probably is included more to try to give a fuller picture of the client's life situation. And you felt it was important to know about the sobriety for purposes of making a plan for further rehabilitation of this particular client, isn't that what you just said? Cindy Rice -- Cross by Mr. Brown 323 I think that would have been what was important to me. so if there is a slip that could be something that you would have to take into consideration in devising a follow--up plan? I think that was not in my mind. All right. were you aware of the fact, Ms. Rice, that within a year of the time that you tested Mr. Scheffler that he was still using drugs other than alcohol? Did you have that history? No. would that be significant in your determining the diagnosis of this individual? What I said was that if a person were using recently prior to testing, it would be significant. So it would have been significant if it was within a year, let's say a year to 15 months? That length of time would be of less concern to me than within a sixmmonth period. And the reason that alcoholism or lack thereof and drug use and I think you said trauma is because those things could impact upon one's motivation of one's self confidence and some of these issues that are important for them to deal with these learning disabilities, isn't that true? would you say that again? Cindy Rice Cross by Mr. Brown 324 The reason that those factors, and I will list them, alcoholism you said, drug use, trauma, if someone has these or you said even a cold? Right.- Creates a problem for focusing, for motivation, for ambition, for self confidence, things that are collateral to assisting someone in dealing with their learning disabilities, isn't that true? That seems fair. I was speaking primarily of performance. If somebody isn't motivated, doesn't feel good about themselves, it's going to be hard to work hard at these tests and to try to better one's self? Right. And that's the essence of what you are talking about, isn't it? In part. I was saying that one might physiologically be unable to do better under the impact of some of the traumas or use or whatever. And you were aware of the fact, weren't you, that on February 22, 1995, or within three months, four months of when you tested Mr. Scheffler that he had undergone some additional trauma, correct? If the notes in the file report that. Do they? Well, there is reference in there to an automobile Cindy Rice -- Cross by Mr. Brown 325 accident and perhaps you can tell us. There is a Mr. Wolf if you could look? That was after the assessment. What was the date on that? October '95. He contacted us to get a copy of the report. But look at your letter or the letter that he sent to you. Wolf? Yes. Do you see that he references an accident which occurred on February 22, 1995? This was handled by the scheduling person and so I hadn't really studied this particular history. Yes, I see February 22, 1995 under date of October 17, '95. Unless the notes in the file mention the accident. I can assure you that in Exhibit 6 there is no mention of the accident? No. And I don't see it in the notes here. Well, based upon the opinion that you gave earlier, you would have to agree, wouldn't you, that trauma from a motor vehicle accident and physical injuries could have some impact on the me what you were seeing in the testing and what your diagnosis of the learning disabilities were, isn't that true? I have no knowledge of the automobile accident. Cindy Rice -- Cross by Mr. Brown 326 Exactly. And details. So you couldn't say whether that was part of what you were seeing in April or May or not, isn't that true? I have no knowledge. Okay. Now, I keep standing up. I don't want to make you uncomfortable. If somebody has a broken arm and we have xwrays that are taken before the arm is broken and then we have x-rays that are taken after the arm is broken, you can hold up the two x--rays and say uh--huh, when you fell off your bike and now we have taken these x--rays we can see that this arm is broken, correct? Yes. And that would be an objective measure of what has brought about a particular diagnosis in this case, a fractured arm? Yes . And if you were asked an opinion by Mr. Anderson whether or not the pre--existing learning disabilities of Mr, Scheffler could have been aggravated by something happening in 1981 or thereabouts, that something being trauma from sexual abuse, do you remember giving the opinions that you gave? YES . Cindy Rice Cross by Mr. Broen 32*? Now, wouldn't it be correct, Ms. Rice, that had you before you the same kind of tests that you administered in April and May of 1995 which would have been administered prior to 1981 and let's say tests administered in 1982 or 1984, as well as the tests in 1995, you would have then snapshots of the status of Mr. Scheffler's disability and you could then render an opinion as to whether or not something might have happened in 1981 which would have changed that profile as it was then existing? Isn't that correct? That seems reasonable. And in fact if you were able to get the IEPS or the testing that was done of Mr. Scheffler at various ages, you would be in a better position to make and to give us an opinion as to whether or not anything had happened in 1981 brought about an aggravation in the learning disabilities situation of Mr. Scheffler, correct? Yes. Well, let me go one step further. I have read Exhibit 6 up side and down and I see absolutely no reference in Exhibit 6 to you having received any information about an alleged sexual abuse in 1981, am I reading this correctly? Yes. That's correct. Cindy Rice -- Cross by Mr. Brown 328 So you did not take that into consideration at all when you rendered the opinions that are set forth in this report? Correct. And in fact the first time that you heard about -- well, let me ask you. Did you ever hear about the allegations of sexual abuse first from Mr. Scheffler himself? I don't recall that we well, wait a minute. I did see a note on the margin of the intake form that would indicate that when I met with him that he explained something and I underlined, "abuse by clergy." And you apparently thought it was significant enough to include in this report, isn't that true? Your question gets one of the difficult your questions have gotten that one of the difficult issues of reporting background information about chemical dependency use and so forth. Our practice is to include in the report those things that are -- those things that are critical to developing the recommendations primarily I would think, and one tries not to lay out all of the details of information because the report may be used in various places by various.people and we are advised to be careful in what we include in the report.' Cindy Rice -- Cross by Mr. Brown 329 Well the question is this. You did not tahe into consideration when you formed your diagnosis or your treatment plan the fact that there had been an allegation of sexual abuse occurring back in 1981, isn't that true? To the extent that the any effects of that abuse were present, I think I was addressing it from the standpoint of what am I seeing here and now as opposed to why did this happen. The same way that you were addressing the automobile accident which was in February of 1995 which you didn't even know about, isn't that true? I was addressing what I was seeing and the information that I had. Right. So you can only go on what people tell you and what you see in the tests, isn't that true? That's right. Let me now go back one last thing. If you had those tests, those IEPs of predated 1981 and the ones postdated 1981, would you be in a position to comment" upon whether and let's say that there was no change in the profile -- then you would be in a position to say that there was no aggravation or exacerbation of the pre--existing problem, wouldn't that be true? I would be reluctant to make that statement based upon Cindy Rice -- Cross by Mr. Brown 330 the limited testing that was administered because a general assumption can be made that aggravation is likely to affect performance in that the performance that is affected might be that in daily life more rigorous academic program than the basic skills testing. So that is really what your opinion is about here today. It's just a very general notion in your profession that some sex abuse, some common colds, some automobile accident trauma, some marital problems, all of those things could be something that you would have to take into consideration when you were working on a treatment plan. That's all your opinion has been here today, isn't that true? Say that again, because that's a long question. You are only telling the jury and us that in a very general way the research has shown that with some people and with some episodes of sexual abuse just as with some common colds, just as with some illnesses, just as with cancer or with trauma from an automobile accident or marital problems, in a general way those things have been shown with some people in certain situations to have affected or exacerbated pre--existing learning disabilities, correct? That statement seems to be a fair statement. Cindy Rice - Cross by Mr. Brown 331 And that's what you have said here in court today and that's all you have said here in court today, isn't that true? When working with Just if you could, just say yes or no? I can't say otherwise. So that's a yes? Yes. Lastly, now I need to have you look at these margins where you say you thought you saw some comment about the alleged sexual abuse. It would be on the side of your folder. Here it is. No, it wasn't my note. It was his note. But look on your folder, Ms. Rice. Do you see your notes referencing Jeffrey Anderson? Yes. What do those notes say? Phone conference and file review -- What is the date on that? January 17, '96. '96? Mm hmm. Just read. Phone conference and file review with Jeff Anderson of Reinhardt Anderson attorneys re sex abuse to testify Cindy Rice Cross by Mr. Brown 332 re LD needs. will call week before to confirm date and time. Will call day before to review issue for 20-minute testimony and expected content for direct testimony in cross-examination. And the first meeting was two hours, was it not? Doesn't your notes say two hours for your first conference with Jeffrey Anderson? No, that's onemhalf hour. 30 I read that wrong. Is that a personal meeting? No, phone. Okay. And at that time you learned from Mr. Anderson that you would be needed to testify in trial? Yes. This was a half--hour billing time and the notation again was made to be sure that our billing would make sense. No, but you spoke with them and you learned about this case from Mr. Anderson? That's correct. And you learned about the fact there is an allegation of sexual abuse occurring back in 1981? I don't remember that the date was brought forward at that time. It may have been. And that's-the first time that you started to factor in the fact that there was allegations of sexual abuse, isn't that true? Cindy Rice -- Cross by Mr. Brown 333 No. Not entirely. Whenever there are notations in the file whether or not they are written in the background information, there is a general awareness that this is where the client is coming from and that is taken into consideration as you said earlier in a general way in understanding the test_results. But it's not in the report? That's correct. And that conversation with Mr. Anderson was what date again? The 17th of January. 1996? Yes. And then you spoke with him again yesterday or the day before? . Yes. And he told you that you were going to have to give certain testimony in trial? Mm hmm. And he told you you would have to answer questions from people like me? Yes, for 15 minutes, yes. So you are only supposed to be here for 20 minutes? Yes, a no brainer. Did he say that? Cindy Rice -- irect by Mr. Anderson 334 No, no. MR. BROWN: Nothing further. Thank you very much. THE COURT: Counsel. MR. ANDERSON: Do you have Exhibit 6, Mr. Brown? MR. BROWN: No, I think it's still up there, Mr. Anderson. REDIRECT EXAMINATJON BY MR. ANDERSON: Ms. Rice, excuse me. Exhibit 6 here. Is reading disability a part of reading disability is I presume when somebody has a reading disability they look at a document and they don't read it well? Correct. Okay. Mr. Brown told you on cross--examination that he had read Exhibit 6 up and down repeatedly and there is no reference in that to any clergy sexual abuse, isn't that what he said? Yes. would you look at the third to the last page of Exhibit 6. Yes . And this is a part of your file and a part of the intake information? Cindy Rice - irect by Mr. Anderson 335 That's right. And what it is the question is asked, "You miss class a lot," and the answer written on Exhibit 6 is what? "Hooked on drugs and abuse by clergy." And when the question is asked, "Do you have any emotional problems? If you do, tell us more about them." The answer given by Dale Scheffler and clearly shown on exhibit is what? "Dealing with clergy sexual abuse." Okay. So you at least and the people that assisted you in doing this assessment clearly knew about clergy sexual abuse in Dale Scheffler's past? Yes . Okay. However, when you did this assessment it was at the request of his therapist, not my request, correct? That's right. And it was now, and when you did this, did you even know there was litigation underway? When I did the assessment? Yes. No. Okay. And you didn't know then at the time you did the assessment you would ever be called in the courtroom and be examined and cross~examined, correct? Cindy Rice -- irect by Mr. Anderson 336 - No, I didn't. And isn't it true that I called your office in January, and it's reflected in your file, and I wanted to talk to you and the or the that helped you prepare this assessment? Yes. Okay. And it was a conference was set up for me to call and talk to you and we did? That's right. And I called you. What was the date again? The 17th, January 17. Okay. And in that call I told you I am a lawyer and I am representing Dale Scheffler? Correct. And I told you there is a case coming up? Yes. And I asked you some questions and the first question I asked you is, Ms. Rice, I wanted to know if Dale's learning disability was in any way affected by trauma because I didn't know if it was, correct? Yes. And that conversation was pretty much me asking you questions about your background and your opinions? Right. Other than the fact that I was representing Dale and I Cindy Rice -- Recross by Mr. Eisenzimmer 337 told you I was representing Dale and that the case was coming up, did I tell you anything more about it? I don't recall. Finally, Ms. Rice, we have been talking here about Dale and you have told us about his learning disability. I am going to have to call him as a witness in this courtroom and take the witness stand just like you have here and first, is testifying easy? NO. Second, with Dale's learning and verbal disabilities and impairments that you have told us about, how would you expect him to do in testifying? I have found that when he expressed himself with me that he tended to be brief in his answers and to not provide much detail. I think that in a courtroom setting his verbal abilities would make it difficult perhaps for him to understand questions unless they were very clear and brief. MR. ANDERSON: Thank you very much. THE COURT: Counsel. MR. EISENZIMMER: Thank you, Your Honor. RECROSS EXAMINATION BY MR. EISENZIMMER: Ms. Rice, I assume that any learning disability that Mr. Scheffler is experiencing won't have any affect on Cindy Rice -- Recross by Mr. Eisenzimmer 338 his ability to tell the truth here in the courtroom however? Correct. I would assume so. And some time ago we had the occasion to take the deposition of Mr. Scheffler and so I have seen him testify, so you wouldn't expect that he would be unable to communicate through testifying in this courtroom, would you? No. How, I want to go back to counsel's reference to Mr. Brown's earlier comment about having reviewed Exhibit 6 up and down, back and forth, whatever the reference was and not seeing any reference to this matter of clergy sex abuse and of you of course now have identified a portion of Exhibit 6 that talks about being hooked on drugs and abused by clergy and dealing with clergy sex abuse? Correct. But I think some of the confusion there is Exhibit 6 is not just your report but some other material as well, is that correct? The background information. And this is a background questionnaire form that Mr. Scheffler filled out? Correct. Cindy Rice -- Recross by Mr. Eisenzimmer 339 But if we just take that portion of Exhibit 6 which is your report, your report doesn't refer at all to anything about clergy sex abuse as the file indicated? Those words are not used in that report. In fact, about the only reference one could even suggest might refer to that is a statement he has some counseling issues, is that fair? That's the statement referring to his background. Now, you talked about when you did the evaluation, apparently April 10 and May 30, 1995, correct? Yes. You talked about talking to Mr. Anderson on January 17, 1996, is that correct? Yes. What I am a little confused on still even considering all of the questions is when was your written report prepared that's headed Educational Evaluation, can you tell me that? I am certain that it would have been prepared in the month of June. June 1995. And I am also confused as to did you you referred to the term client. You and Mr. Brown I think have both used the term client. who is the client, Dr. Bera or Mr. Scheffler? Mr. Scheffler. Cindy Rice -- Recross by Mr. Eisenzimmer 340 But Mr. Scheffler never received a copy of your report? Not directly from me. You sent your report to Mr. Bera? Yes. Dr. Bera? Yes. And are you able to tell from a review of your file or Exhibit 6 when you would have sent it to Dr. Bera? It was mailed June 9. 1995? Yes. Now, I take it that the tests you administered to Mr. Scheffler are referred to as educational tests? That's correct. MR. ANDERSON: Objection, beyond the scope. THE COURT: Overruled. BY MR. EISENZIMMER: And I take it that none of these tests are designed to determine whether he, Mr. Scheffler, has any underlying abnormalities in cognitive processing? To the extent that verbal IQ deficits are deficits in cognitive processing, that would be included, yes. And were you able to determine as a result of these tests whether he does have any underlying -I3-UJIQ 3510 3' Cindy Rice -- Recross by Mr. Eisenzimmer 341 abnormalities and cognitive processing? The graph which I think is attached to the report? It's attached to your report, yes. Yes. May I show it? You can refer to it. Okay. The graph describes the area of the broad average range and shows test scores that fell below that range and those would be areas where deficit would be understood to be present. And if one has deficits in cognitive processing or abnormalities in cognitive processing, in essence the understanding in your field is that those exist likely from birth? Right. Now, is and I apologize if I have already asked this but you and Mr. Brown have used the term IEP. Can you tell me what an IEP is? An individual education plan is the basis for providing instruction and other services to individuals receiving special education services including learning disabilities services in a public school setting. And I take it that you haven't seen any IEP prepared for Mr. Scheffler? Correct. Cindy Rice Recross by Mr. Eisenzimmer 342 In fact, as far as we know one doesn't even exist? Correct. Now, one of the things that I want to touch on too is the question about what affect alcohol and drugs would have on a learning disability, and I think that what you indicated was that it would make it worse during the time of use, but I also take it that at the time you did your evaluation of Mr. Scheffler, you didn't see any evidence of recent use that would influence that evaluation? I would rely upon information provided to me as background information and that indicated no recent use. And that background information you are talking about would be a self report from Mr. Scheffler himself? That's correct. And the self report you got from Mr. Scheffler himself was that he had had four years of sobriety? Right. And when you used in your report the term sobriety, are you referring to sobriety from both drugs and alcohol? No. I see that he made the note pot use one year Prior. And given his indication of pot use one year prior, Cindy Rice -- Recross by Mr. Eisenzimmer 343 you wouldn't have expected that to have affect on his test results at the time he was administered those tests in April and May of 1995? I wouldn't call that recent use. Good. Okay. Now, one other area that I wanted to inquire about is again going back to your statement that any trauma, and I tried to take this down as best I could, that any trauma is likely to exacerbate the manifestations of a learning disability? Yes. THE COURT: Can you approach the bench, please. (Discussion at the bench out of the hearing of the jury.) BY MR. EISENZIMMER: What I am wondering, Ms. Rice, is whether an automobile accident where Mr. Scheffler would describe himself as suffering back pain, a spinal disk problem, and being near disabled would qualify as a trauma that is likely to exacerbate the manifestations of his learning disability? During the time that the pain would be present, it certainly would. MR. EISENZIMMER: No further questions, Your HODOI . Walter Bera -- Direct by Mr. Anderson 344 MR. BROWN: No questions, Your Honor. MR. ANDERSON: Nothing. THE COURT: You may step down. (Witness excused.) THE COURT: You may proceed, counsel. MR. ANDERSON: Your Honor, at this Thank you. time we will call Dr. Walter Bera. WALTER H. BERA, being duly sworn, was examinediand testified as follows: THE COURT: State your name for me spelling your first name and your last name, please. THE WITNESS: Dr. Walter H. Bera, THE COURT: And your address. THE WITNESS: Kenwood Professional Building, 1111 West 22nd Street, Suite 210, Minneapolis, Minnesota 55405. THE COURT: You may proceed, counsel. MR. ANDERSON: Thank you. DIRECT EXAMINATION BY MR. ANDERSON: Q. Dr. Bera, what's your occupation? A. I am a licensed and a licensed marriage and family therapist. Q. And how long have you been a therapist and Walter Bera -- Direct by Mr. Anderson 345 I have been a therapist for nearly 20 years and a_ since licensure in 1986 I believe. Why don't you are you in private practice? Yes. Why don't you tell the ladies and gentlemen of thel jury essentially what it is you do in the practice of I provide assessment treatment of a variety of individual couple and family problems. I also provide consultation to schools and corporations, mostly typically around issues of boundaries such as sexual harassment, sexual misconduct, sexual concerns, etc. You have a masters and a Yes. You recently got your Yes, in August of '95. Do you have any background, training, education and/or experience in the treating of victims of sexual abuse? Yes. What is your background and experience? In the late '70s I worked for some two to three years at the family sexual abuse program at Fairview Southdale Hospital working with incest families. I- then went to Illusion Theatre and helped develop a play called Touch about good touch and bad touch that Walter Bera -- Direct by Mr. Anderson 346 we have showed, performed throughout North America to grade schools and at conferences. I then in the middle '80s moved to the phase program, a program for healthy adolescent sexual expression where I worked with juvenile sex offenders and their families and wrote articles and did my masters research on what types of families and situations seem to contribute to development of someone becoming a sex offender. And I began doing more prevention work. I wrote a prevention curriculum that's used in Minnesota that's called The Sharp Curriculum which is used to prevent kids from moving into perpetrating behaviors. I wanted to take a break from sexual abuse and moved to a low pressure job I thought at the time at Metropolitan Clinic of Counseling now called the United Behavioral Systems. Worked for almost five years. I worked with adolescents and families in crisis and just found a great variety of human dilemmas that trouble kids and families. I began my private practice at that time and returned to graduate school and got my doctorate in family social science with the focus on marriage and family therapy. I did my dissertation on a study of 25 men all sexually abused by the same evangelical minister during their adolescence. It was the first study of a cluster of Walter Bera Direct by Mr. Anderson 347 victims that were all abused starting study was what kind of impact does it have and then what do people do to cope with it, what seems to be helpful in surviving that kind of experience. The name of that thesis was Clergy Sexual Abuse and Male Survivers, a study of stress and coping among 25 men abused by the same minister during this adolescence? Yes. Doctor, you have a CV marked Exhibit 25. Is this your curriculum vitae?' Yes. Says what your work history is, it has got your education, your licenses, professional memberships, it's got so I don't have to walk through all of this let's see. Papers, publications, presentations you have made? No presentations because that seemed too much. Well, okay. You have done a lot of presentations but not in Right. 1 A number I trust on the prevention of sexual abuse and the treating of it? Yes. Walter Bera - Direct by Mr. AndeIS0fl M. ANDERSON: MR. EISENZIMMER: No objection. MR. BROWN: No objection. THE COURT: It will be received. THE WITNESS: I am a lecturer at the University of Minnesota in 348 I am going to offer Exhibit 25. I also would like to happily say social work teaching social issues and sexuality, and I am a professor teaching advanced marriage and family therapy skills at St. Mary's University. BY MR. ANDERSON: Dr. Bera, I want to talk to you and ask some_questions about Dale Scheffler? Yes. How long have you been treating Dale? Since August of last year. Okay. How did Dale get to you -- August I am sorry August of 1994. Excuse me. How did Dale get to you? He was referred to me by I believe you. And I called you up, didn't Yes. Okay. You know me from other clients you have treated? Yes. And but I called you up and what did I say to you? Walter Bera -- Direct by Mr. Anderson 349 I have heard you talk on the phone. You were upset. You were really concerned about Dale and you asked if I could see him as soon as possible. And did you? Yes, I saw him the next day. Okay. And when you saw him, I want you to tell the ladies and gentlemen of the jury a little bit about the information you got and your observations? I saw him on August 11 and of '94, and he said that he had been sexually abused by a Catholic priest, Father Kapoun, the polka padre. That the priest was still practicing as a priest not far from his hometown where the priest had been residing during his own abuse, and he was afraid that the abuse was continuing and feared for the kids, and then he was very upset_ because he was realizing the degree in which the abuse had affected his life and his relationships. These are things you got out of him. He just he spilled them out. Okay. What was his what were your observations about his state of mind and demeanor at that time? Very depressed and agitated. And did you begin the process of a diagnosis? Yes. And did you make a determination that he was in need Walter Bera -- Direct by Mr. Anderson 350 of therapy? Yes. And did you undertake a course of therapy? Yes. And what essentially is it that you are doing with him? I am conducting an individual and couple therapy. And in the course of that you have made notes in your chart about the therapy? Yes. And I am going to show you Exhibit 4. Is that a photo copy of the chart notes that you have made and that you do customarily make in the course of providing counseling? Yes. MR. ANDERSON: I will offer Exhibit 4. MR. EISENZIMMER: Your Honor, no objection to Exhibit 4 with the understanding that counsel and I apparently reached some material in there by our mutual stipulation will be redacted before the matter would go to the jury. THE COURT: Redacted means they black it out -- with a pen. MR. EISENZIMMER: Thank you, Your Honor, for that explanation. Now I too understand it. Walter Bera -- Direct by Mr. Anderson 351 THE COURT: It will be received on that basis. MR. BROWN: No objection, Your Honor. BY MR. ANDERSON: Do you have your copy in front of you? Yes. Then you can refer to that if you need to. I would like you to tell the ladies and gentlemen of the jury about your work with Dale beginning with your diagnosis of him and then tell the ladies and gentlemen of the jury of your treatment? I beginning in that August then of 1994 1 did a preliminary assessment of his condition and determined that he was Suffering from depression and agitation and was agitated. That his concerns were around especially conflictual and relationship with a woman named Ellen who the conflicts was on his ability to express his emotions, to be intimate, to talk about his feelings, to you know just to have an intimate relationship with her. He had self esteem issues, he had conflicts with authority and he had issues around his reading and writing ability that he saw was really limiting him in his job as a roofer, and so it was this whole cluster of things. At the same time he had realized in the previous December that these bizarre and confusing experiences that he had when he was 13, Walter Bera -- Direct by Mr. Anderson 1 352 14 at the hands of Father Kapoun had an impact on him and were part of the reason that he saw that he had trouble with intimacy and the reason he got into alcohol and drugs to the extent that he did. Let me ask you about that, Dr. Bera. Yes. This is a 26--year<