The Woody Allen Controversy Reader: (9) Debunking Maureen Orth’s “Undeniable Facts About The Woody Allen Sexual-Abuse Allegation” — Examining The Claim That A Prosecutor Once Stated He Had “Probable Cause” To Prosecute Allen

This is an excerpt of a larger and more complete essay that debunks Maureen Orth’s false and misleading article “10 Undeniable Facts About The Woody Allen Sexual-Abuse Allegation”. This particular section focuses on Orth’s ninth claim — that a Connecticut State prosecutor publicly said that he had “probable cause” to press charges against Allen, but declined to so out of his concern for Dylan Farrow.

Here is Orth’s precise contention as stated in her article:

9. The state attorney, Maco, said publicly he did have probable cause to press charges against Allen but declined, due to the fragility of the “child victim.” Maco told me that he refused to put Dylan through an exhausting trial, and without her on the stand, he could not prosecute Allen.

In this instance, Orth deliberately fails to explain what the phrase “probable cause” means in a legal context, and just what an incredibly low bar that is to establish.

The mere fact that Dylan made her statements against Allen without any other evidence whatsoever can be considered enough to establish “probable cause to press charges”.

Let me emphasize just how easy this is. If someone accuses you of molesting them, and goes so far as to make sworn statements to authorities (or a doctor, who in turn is obligated to inform police), if the authorities do not have an active or objectively valid reason to doubt the words of the accuser at the time he or she made them, then “probable cause” to press charges against you has been established.

That is a far cry from establishing guilt “beyond reasonable doubt” — the ultimate threshold that all prosecutors should have a good faith belief in their ability to prove before actually indicting someone and continuing with a prosecution.

Orth is playing a very cynical and disingenuous word game here — hoping that her audience will be ignorant enough of what the phrase “probable cause” actually means to try and trick them into thinking that Maco’s statement is more significant than it actually is.

But that’s still not the worst offense Orth commits here. She deliberately omits Maco’s full, complete quote that he made back in 1993 when he originally concluded that he could not prosecute Allen.

Here is the more complete statement of Maco’s that Orth should have apprised her readers of:

“To risk the well-being of a child in a case where there is evidence which points to the existence of a reasonable doubt is nothing less than to sacrifice the child on an altar of public spectacle.” — Frank S. Maco (March 1993, emphasis added).

Here is another quote that Orth should have included if she had any intention of being honest with her readers:

After a year-long investigation, Connecticut State Attorney Frank Maco has decided not to pursue charges against Allen because of the lack of witnesses to the alleged abuse of Dylan and concern about her credibility on the stand, New York Newsday reported today.

″There wasn’t enough [evidence] to warrant putting (Dylan) through a trial,″ the newspaper quotes a a source familiar with the investigation as saying.

Newsday also reported that “sources familiar with the investigation said Maco was concerned about the lack of witnesses to the alleged abuse of Allen’s adopted daughter and the girl’s credibility on the stand.” (Newsday, Sept. 23, 1993, pg. 2; emphasis added.)

In other words, Maco fully admitted that reasonable doubt existed in the Allen case, and always had. It is therefore an “undeniable fact” that the prosecutor leading the investigation in the Allen case stated that reasonable doubt existed. Yet that is not the undeniable fact that Orth chose to highlight in her article. The level of her disingenuousness only grows with each successive sentence that she writes in it.

Maco is naturally correct in his statements above. To subject a child to a public spectacle and the rigors of a criminal trial when the prosecution already knows full well that reasonable doubt will easily be shown is something that no rational prosecutor would do. That is the reason why Maco failed to prosecute — nothing more.

Since Connecticut doesn’t have a grand jury system for most criminal matters to serve as even a modest check against prosecutorial abuse, the decision not to pursue the case was entirely Maco’s. He chose not to, based on his realization on just how weak the case was.

Ask yourself this key question: If both state investigations had unambiguously concluded that Dylan had in fact been molested by Allen (rather than concluding that the allegations were completely unfounded), and if all of the witnesses at the house that day on August 4th were in fact all truly unanimous and clear in witnessing behaviors that were genuinely suspicious in their proper context (rather than harboring doubts and contradicting each other), and if doctors had confirmed physical trauma or evidence existed that proved that Dylan had been molested (rather than indicating that they found no such evidence), and if the psychologists seeing Allen and Dylan agreed that Allen was a dangerous threat as sexual predator and would continue to be a threat to Dylan or others in the future (rather than testifying that they didn’t see Allen’s relationship with Dylan as sexual), and if Allen’s actual semen and Dylan’s pubic hair had been found in the attic and been positively identified through DNA matching (rather than relying on Orth’s hearsay claim about an unverified hair found on a painting that was placed in the attic on an unknown date), and if none of the other myriad pieces of evidence pointing to reasonable doubt in the case existed and the case was an easy, ironclad lock in establishing guilt beyond reasonable doubt, do you seriously think for a moment that Frank Maco would have declined to prosecute Allen for being a dangerous predator simply because he was concerned about Dylan’s psychological frailty? What would you think of such a choice in that context?

The obvious answer to this question speaks volumes.

It wasn’t Maco’s concern for Dylan’s state-of-mind that was the determining factor in his decision not to prosecute Allen, but rather his realization that he didn’t have enough evidence to do so. For Orth to try and claim that the former factor was the reason behind his decision rather than the latter is yet another example of her egregious lies in this instance.

Given Maco’s own bias and prejudice towards Allen, he tried his best to parse his words as much as possible in explaining his ultimate decision in his official communique to the public. But when you read his full statement in context, the conclusion is still the same — Maco didn’t prosecute Allen because even he knew full well that the case against him was just too damn weak.

Maco himself said in his public statement, “[E]ven Justice Wilk, in doubting the success of a criminal prosecution and working in the framework of an evidentiary standard less severe than proof beyond reasonable doubt, could not definitely conclude that sexual abuse occurred.”

Orth takes tries to take this undeniable fact and turn it completely on its head to try and paint the opposite conclusion in the mind of the reader. What she does here is lamentable and shamefully dishonest.

The very weakness of the evidence against Allen is undoubtedly the reason why Dylan has declined to sue Allen in civil court, even though she would only need to meet the low “preponderance of the evidence” standard in such a case. In other words, all she would have to do is present enough evidence showing that it was more likely than not that Allen abused her.

It is the same lax standards that an increasing number of colleges have embraced in dealing with allegations of sexual assault.

Even if jurors had some doubts about Dylan’s story, if they felt, based on the evidence, that it was “more likely than not” that what she said Allen did to her was true, she would still prevail.

As courts have explained, the evidentiary threshold in this instance is only just a smidgen higher than the incredibly weak and even lower “probable cause” standard which Frank Maco publicly pronounced he had established against Allen that Orth highlights as being somehow significant.

In fact, if Dylan were to bring such a case against against Allen, here is the actual jury instruction that the Connecticut judge would likely be giving to the jurors:

“In order to meet her burden of proof, a party must satisfy you that her claims on an issue are more probable than not. You may have heard in criminal cases that proof must be beyond a reasonable doubt, but I must emphasize to you that this is not a criminal case, and you are not deciding criminal guilt or innocence. In civil cases such as this one, a different standard of proof applies. The party who asserts a claim has the burden of proving it by a fair preponderance of the evidence, that is, the better or weightier evidence must establish that, more probably than not, the assertion is true. In weighing the evidence, keep in mind that it is the quality and not the quantity of evidence that is important; one piece of believable evidence may weigh so heavily in your mind as to overcome a multitude of less credible evidence. The weight to be accorded each piece of evidence is for you to decide.

As an example of what I mean, imagine in your mind the scales of justice. Put all the credible evidence on the scales regardless of which party offered it, separating the evidence favoring each side. If the scales remain even, or if they tip against the party making the claim, then that party has failed to establish that assertion. Only if the scales incline, even slightly, in favor of the assertion may you find the assertion has been proved by a fair preponderance of the evidence.”

The statute of limitations on such a civl lawsuit against Allen would not run out until Dylan reaches age 48 (July 11th, 2033).

In terms of possible psychological barriers in discussing the issue, she seems to have no problem accusing Allen in the press and on social media, or encouraging writers like Orth or Nicholas Kristof to publicly advocate on her behalf.

Dylan told Orth herself in 2013, “I have never been asked to testify. If I could talk to the seven-year-old Dylan, I would tell her to be brave, to testify.”

So what is now stopping her from bringing such a lawsuit? Is it because she is nervous about the full range of actual evidence that would be presented in a court setting as opposed to the distorted half-truths and falsehoods put forth by a social media mob?

That would certainly be a very understandable concern. But the fact that such a concern exists and that no such lawsuit has been forthcoming speaks volumes — another “undeniable fact” that Orth deliberately ignores.