Copyright 1997 by Elsa Dorfman.
Click on photo for larger and better image.
Gerald Amirault is Living at Home With His Family
This case ought to leave no one feeling confident except for one thing:
justice was not done.
— Judge Isaac Borenstein, 12 June 1998
Disclaimer
This page is in no way intended as an "official" Amirault site.
To the best of my knowledge, it contains no factual errors. If you find
a factual error, please contact me and I will investigate and correct it
if necessary. But any errors found herein are strictly my own and should
not reflect upon the Amirault family, their defense team, or any of their
other supporters. The opinions presented herein — and they are many because
I am a most opinionated person — are strictly my own are not meant to represent
the opinions of the Amirault family, their defense team, or any of their
other supporters. I would like specifically to thank two people who did
the groundwork to bring these injustices to public attention: Dr. Jonathan
Harris and Dorothy Rabinowitz of the Wall Street Journal.
I will not here thank the great many others who should be thanked for fear
of inadvertently leaving someone out.
On January 20, 1692, in Salem, Massachusetts, 9-year-old Elizabeth Parris
and 11-year-old Abigail Williams screamed blasphemies, fell into trance-like
states, and shook with convulsive seizures. Other Salem girls soon emulated
this behavior. Within weeks, physicians concluded that the children were
under the influence of Satan. The girls accused three women of afflicting
them, and warrants were issued for their arrest on February 29. Panic spread,
and more and more women -- and one man, John Proctor -- were soon also
accused. Under interrogation by magistrates, two women actually confessed:
Tituba, a West Indian slave, and Abigail Hobbs. More accusations against
both men and women flourished. On May 27, the new governor, William Phipps,
established a special Court of Oyer and Terminer to try the accused. On
June 10, Bridget Bishop was hanged as a witch. Over the next four months,
19 more innocent people were convicted on the basis of the girls' testimony
and executed. Then Phipps put an end to the madness and dissolved the Court.
Five years later, the Massachusetts General Court declared January 14, 1697 a Day of Contrition,
a time of repentance for the hysteria-driven wave of destruction that swept
Salem Village five years before.
Malden, Massachusetts, 1984
In 1966, at age 42, Violet Amirault -- abandoned to raise her two children
-- took herself off the welfare rolls by starting a small daycare service
in the basement of her home in Malden, Massachusetts.
This grew to the thriving Fells Acres Day School, which soon occupied
the whole house (plus an addition) and served over 70 students at a time.
For 18 years, the school cared for thousands of youngsters and gained community
respect. No one ever made an accusation of abuse or impropriety.
In 1984, when the troubles began, Violet no longer taught but
was the school's principal. Her son Gerald didn't teach (his wife Patti
did) but did odd jobs -- driving, cooking, repairs and the like. Violet's
daughter Cheryl taught one toddler class.
In April of 1984 a four-year-old, new to the school, wet himself
during a nap. Gerald, at the teacher's request, changed him into spare
clothes kept on hand for such common accidents, put the wet things in a
plastic bag, and sent them home with the boy.
The boy who wet himself had behavioral problems: bed wetting,
lying, baby talk, and hostility. His parents were in the midst of a difficult
breakup. Around the time of the wetting incident, the mother discussed
with the boy the alleged sexual abuse of her brother. During the summer,
the boy was discovered in sex play with a cousin. This led to his being
interrogated by the uncle, the mother, and a therapist at Children's Hospital.
The boy told the uncle that Gerald had taken the boy's pants down. On the
eve of Labor Day, 1984, the boy told his mother that every day at preschool,
Gerald blindfolded him, took him to a "secret room" with a bed and golden
trophies, and performed various sex acts. The mother called a hotline and
accused Gerald of sexual abuse.
The police went to the school, seized class lists, arrested Gerald, and
shut the school down. The parents were summoned by police and social workers
to a meeting at the police station (which took place on September 12),
were told that common childhood behavioral symptoms -- bed wetting, nightmares,
changes in appetite, etc. -- were evidence of abuse, and were asked to
query their children about "magic rooms," "secret rooms," and clowns. The
parents were told, "Go home and question your children and don't take no
for an answer." According to one parent who attended the meeting, they
were also told, "God forbid, any of you show support for the accused. Your
children may never forgive you."
The children were interrogated not only by their parents but also
by police, social workers, therapists, prosecutors, and by pediatric nurse
Susan Kelley. The interrogations were highly leading and coercive. Kelley
used Sesame Street puppets and had Bert and Ernie plead with the children
for "disclosures." Kelley and other investigators also used anatomically
correct dolls. Refusal to "disclose" was dismissed as "denial." In some
instances, when a child denied abuse, Kelley would tell the parents that
the child had been abused anyway. (The videotapes of the Kelley interviews
must be seen to be believed.) John Rivers, a Malden police inspector, said
interviewing the children was "like getting blood from a stone." No Fells
Acres child ever made a spontaneous accusation of abuse.
Since 1990, social scientists have demonstrated conclusively that
"evidence" obtained under these circumstances is worthless. Psychologists
Stephen Ceci of Cornell and Maggie Bruck of McGill, for example, found
that anatomically correct dolls were useless in determining which children
had been touched on the genitals during a doctor's visit. (Many of the
children, in fact, falsely asserted that the doctors had put their fingers
or implements inside them.) Sena Garvin, of the University of Texas at
El Paso, by using the Fells Acres interrogation techniques, was able to
extract false accusations from 75% of 3-year-olds and from 50% of another
group aged 4 to 6.
The investigation was supervised by the Middlesex County District
Attorney's office. Scott Harshbarger was District Attorney at the time,
and has since used this case to further his political ambitions. (Harshbarger
is outgoing Massachusetts Attorney General and was the unsuccessful Democratic
candidate for Governor.) The actual investigation and prosecution of the
Amiraults was done first by Patricia Bernstein and she was later joined
by Larry Hardoon. Hardoon flew to California to confer with the prosecutors
of the infamous McMartin preschool case.
Under relentless prodding, the children produced accusations against:
Gerald, Violet, and Cheryl; three other teachers; an imaginary Mr. Gatt;
someone named Al; and even against pediatric nurse Susan Kelley herself
(arguably the most accurate of the accusations). Only the accusations against
the Amiraults were pursued.
Gerald was tried in 1986 and Cheryl and Violet were tried jointly a year
later. At Gerald's trial, the children sat at a small table and Judge Elizabeth
Dolan took off her robe and sat with them. Parents flanked the children,
so that they wouldn't have to look at Gerald. One child testified via videotape
because the prosecution insisted he was too terrified of Gerald to testify
in person.
During the trials, the prosecutors argued that the Amiraults were
abusing children in order to produce and sell child pornography. They brought
in a postal inspector to give lurid depictions of kiddie porn. The press
made much of the fact that a camera and 29 photographs had been seized
from the school. All of the pictures, however, were exactly what you'd
expect from a daycare center: birthday parties, kids at the pool or the
zoo, etc. Despite a nationwide search, no pornographic photos involving
any of the children were ever found anywhere.
The children readily admitted to practicing their testimony, and
much of it was quite incredible. One boy said he'd been tied to a tree
in front of all the students and teachers. He also said that Cheryl had
killed a dog and buried its blood in a sandbox, and that a robot threatened
to kill him if he told. Another boy said that Vi killed a frog and made
him eat it. (During the original interview, he said the frog quacked like
a duck.) A girl claimed her wrist was slashed and it bled. She also said
that a robot (like R2D2 in Star Wars) threw her in circles and bit
her on the arm.
The prosecutors elicited testimony that the kids had been taken
everyday to a "secret" or "magic" room. Yet no child was ever able to show
the police where this room was, nor could the police ever find such a place
in spite of their diligent searching. The children could not agree upon
which floor the room was located, or even whether it was in the school
or somewhere else.
For a detailed summary of the children's "accusations" and their testimony,
read this Appendix written by attorney Dan
Finneran, who worked on the first FElls acres new-trial motion.
Ceci, Bruck, and other scientists have since shown that young children
are easily led by adult investigators. The false accusations thus produced
will range from the fantastic to the mundane. During the Amirault trials,
children gave both kinds of testimony. Generally, fantastic accusations
are produced if the investigation extends over a period of months and/or
if the investigator believes in bizarre ritual abuse. Short investigations
or investigations by people not believing in ritual abuse produce mainly
accusations of touching and penetration. False accusations are not necessarily
bizarre. Most of the experimentally produced false accusations by Ceci
and Bruck were of genital touching. Some journalists have emphasized the
bizarre accusations, which, after all, is the best way of showing that
false accusations can be manufactured. But this has had the unfortunate
(and unintended) consequence of leading some readers to believe that bizarre
accusations are a necessary hallmark of suggestive and coercive questioning.
The "physical" evidence presented at the trials is now also known
to be worthless. One child had a small scar on the hymen. This scar was
not seen in an examination of the child soon after the case started, likely
because the child's pediatrician did not use a coloscope, a device for
examining colons and vaginas under magnification. More recent studies show
that these sort of small scars are normal hymeneal irregularities. The
girl with the hymeneal scar testified that she'd been anally sodomized
with a knife, not vaginally raped. She claimed that Gerald's big knife
got stuck in her so badly she couldn't pull it out. Dr. Jean Emans, a prosecution
"expert" witness, offered the following theory -- a butcher knife could
"touch the hymen on the way to trying to find the anus" without penetrating
the vagina. Had such an incident actually occurred, tremendous physical
trauma would have resulted.
The only other "physical" evidence produced at the trials were
rashes -- vulvitis and vulvovaginitis -- found in the three girls who testified
against Cheryl and Violet. Such rashes are common and are usually caused
by soaps, uncleanness, minor infections, and tight fitting clothing. Vulvitis
caused by sexual abuse generally heals within three weeks. One of the three
girls was examined 18 months after the school had been closed. The other
two were examined at least four weeks after the school was closed. Both
of them had been examined by family physicians immediately after the school's
closing, and no vulvitis or other signs of abuse were found in either case.
In 1986, Gerald Amirault was convicted and sentenced to 30-40
years in prison. A year later, his mother Violet and his sister Cheryl
received sentences of 8-20 years.
In 1992, Violet and Cheryl Amirault were offered parole. All they had to
do was express contrition for their "crimes." They were offered the keys
to their jail cells, but refused to use them if it meant confessing to
crimes they had not committed.
When the board refused them parole, the trial judge, Paul Sullivan,
revised and revoked the women's sentences to time served and ordered them
released. In an unprecedented move, the prosecutors appealed the
judge's order to the Supreme Judicial Court and won, keeping the women
in prison.
In August of 1995, Cheryl and Violet Amirault were awarded new
trials by Superior Court Judge Robert A. Barton and the two beleaguered
women were finally released from prison. Gerald's bid was turned down.
Both decisions were appealed to the Supreme Judicial Court, and on March
24, 1997, the Court refused new trials for all three. In a blood-chilling
decision, Justice Charles Fried granted that the trials were seriously
flawed. But he decreed that "the community's interest in finality" trumps
niggling concerns about justice -- which, presumably, interests the community
not at all.
On April 29, 1997, the Supreme Judicial Court refused to review
its decision to send the Amirault women back to prison. James Sultan, the
Amirault's attorney, started the process of requesting new trials on the
grounds of ineffective assistance of prior counsel. On May 5, 1997, three
motions were presented to Judge Barton: motions by the defense for a new
trial and to allow the women to remain free on bail, and a motion by the
prosecutors to return the women to prison immediately. Barton made an astounding
statement. He said that the Amirault women "did not receive a fair trial
and justice was not done...The substantial risk of a miscarriage of justice
has been established...I believe I cannot be fair and impartial considering
the three motions before this court." He then recused himself, and a new
judge was sought.
On May 9, 1997, Judge Isaac Borenstein overturned the convictions
of Cheryl and Violet. Defense attorney Sultan presented affidavits from
the women's original trial lawyers stating that they had made a mistake
in not objecting to the seating arrangements of the child witnesses. Middlesex
County District Attorney Tom Reilly, naturally, appealed the decision.
In the summer of 1997, Violet Amirault was diagnosed with terminal
stomach cancer. Gerald Amirault was magnanimously permitted a single 15-minute
visit (in shackles, of course) with his dying mother. Violet died on September
12, 1997, steadfastly affirming her innocence. Among her last words were,
"Don't vote for Scott Harshbarger." Violet once told me that she sometimes
regretted being released from prison. Prison life was very difficult, especially
for one as old and frail as she. But she'd somewhat adjusted to the daily
horrors. Out of prison, she never had a moment's peace. She could lead
no semblance of a normal life because she knew that she and Cheryl might
be sent back at any time. Violet wanted her innocent children free and
the good name of her family cleared. But admitting that a serious miscarriage
of justice had occurred would be too damaging to the political ambitions
of Harshbarger (who was almost elected Governor) and Reilly (who will succeed
Harshbarger as Attorney General). At least Violet Amirault is now at peace
and Harshbarger and Reilly can inflict no further suffering upon her.
The Supreme Judicial Court was to have heard arguments in the
case in December 1997. But Sultan informed the Court that he had developed
new evidence that would provide additional grounds for a new trial -- an
affidavit from the highly regarded experimental psychologist Maggie Bruck
that convincingly argues that the interview techniques used in the Amirault
case "have a substantial risk of producing unreliable and false reports
from young preschool children." The high Court sent the case back to Judge
Borenstein for a hearing on the admissibility of the new evidence.
The first stage of the hearing before Judge Borenstein took place on February
17-18, 1998. Dr. Bruck was questioned by defense attorney Dan Williams.
Bruck pointed out that the interviewing techniques used in the Amirault
case were not based on any scientific evidence, and that current research
shows that they were in fact based upon many false assumptions. She presented
a great deal of her own research, and current research by other experimental
psychologists. The chief problem in the Amirault case was extreme interviewer
bias, which drove the interrogations. Bruck also discussed: the spreading
effect of suggestive interviewing, the promotion of inaccurate reporting
by the use of anatomically correct dolls, the effect of leading and misleading
questions, selective reinforcement, peer pressure, the dangers of encouraging
children to fantasize or "pretend," the distorting effect of time delays
between alleged incidents and interrogation, and the ways interviewers
make mistakes and misreport interviews. Bruck replayed videotapes of several
of the Susan Kelley interviews, which spoke for themselves. Bruck's assessment
was that the children's evidence was "highly, highly suspect" and "unreliable."
Bruck was subjected to badgering by Assistant District Attorney
Lynn Rooney. Rooney began with a series of hostile rhetorical questions
about whether labial cracks and fissures, hymeneal bumps, etc., could be
the result of suggestive interviewing techniques and whether behavioral
symptoms exhibited prior to interrogation could be the result of subsequent
suggestive interviewing. This line of questioning was a transparent attempt
to persuade Court TV viewers that evidence apart from the worthless child
testimony existed. But Rooney knew full well that refutation of the worthless
physical evidence was outside the scope of Bruck's expertise. No leeway
was given for Bruck to address the issues had she possessed the expertise,
because of the devious way Rooney framed her questions. Rooney also tried
to press the absurd claim that the interview bias of the parents should
work against obtaining disclosures, since a parent obviously wouldn't want
his or her child to have been abused. But these were parents who had been
told that their children most likely had been abused, and who'd been told
not
to take no for an answer.
Williams, on redirect, was able to undo much of the damage done
by the prosecutors in dragging in the "physical" evidence. Both defense
and prosecution attorneys raised a great many objections during the testimony,
cross-examination, and redirect. Borenstein's policy was to overrule almost
every objection because the testimony would be reviewed by himself, and
not by a jury.
Rooney also tried to make much of the fact that the subjects of
Bruck and other social scientists' experiments were not sexually abused,
and hence the results weren't "relevant." Rooney was arguing that only
experiments that supported the guilty verdicts should be considered relevant.
But there are two hypotheses. (1) The Amiraults are guilty and rightly
convicted, and (2) The Amiraults are innocent and wrongfully convicted.
Rooney argued that only evidence in support of hypothesis (1) should be
considered "relevant."
Perhaps Rooney's most outrageous tactic was attacking Bruck for
testifying in 1981 that young children readily talk about sexual matters.
Rooney kept trying to distort Bruck's views by repeatedly asking her whether
she still believed that children readily talk about sexual abuse.
It's quite possible, of course, that Rooney equates all sexuality
with abuse. Rooney's "Do you still beat your wife?" tactics seemed to make
no impression on Judge Borenstein, but Rooney was probably primarily playing
to the Court TV audience.
On February 18, the defense called a second witness: Dr. Diane
H. Schetky, child and adolescent psychiatrist and forensic psychiatrist.
Schetky has been engaged in the field of sexual abuse since 1975. In 1988
she was the co-author of guidelines for child practitioners for the American
Academy of Child and Adolescent Psychiatry and in 1997 she was a primary
author of their guidelines for examining sexual abuse cases. Schetky testified
that in the 1980s, "we were working in the dark" and that expert witnesses
gave testimony based on intuition, not hard evidence. She testified that
this has changed because of the work of Dr. Bruck and other experimental
psychologists, and that Dr. Bruck's work is very highly regarded and generally
accepted by child and adolescent psychiatrists.
The cross-examination of the tall, gray-haired, dignified professional
Dr. Schetky by the self-important Lynn Rooney was riveting. The encounter
beautifully illustrated the difference between being cold-blooded and having
sang
froid. Whereas Dr. Bruck was initially rattled by Rooney's cheap theatrics,
Dr. Schetky remained unruffled. Rooney came across as a particularly nasty
and irritating child trying to get a rise out of a patient but unamused
adult.
In my opinion, Rooney's attempts to damage Schetky's credibility
were highly ineffective and served mainly to demonstrate Rooney's appalling
ignorance of scientific method. Rooney tried to make much of the fact that
Schetky couldn't speak for every single one of the 6,000 members
of the American Academy of Child and Adolescent Psychiatry. She again tried
to dismiss Bruck's research as "irrelevant" because Bruck's subjects weren't
sexually abused. Most remarkably, Rooney tried to argue that Bruck's work
wasn't scientific because Bruck couldn't accurately predict the behavior
of any specific child. By this criterion, all of modern physics is not
scientific because no physicist can predict the behavior of any individual
electron, sub-atomic particle, atom, etc. Like experimental psychology,
modern physics deals exclusively in probabilities, not certainties.
I don't know, of course, whether Rooney's ignorance is sincere or feigned.
The hearing will resume on April 14, 1998, when the prosecution
will attempt to rebut the defense testimony. Contrary to expectations,
the prosecution will not be calling an expert witness of its own.
The second stage of the new hearing took part on April 14, 1998. Cheryl
Amirault LeFave had a very good day in court that day.
Judge Isaac Borenstein asked tough and thoughtful questions. Cheryl's
lawyers -- Dan Williams and James Sultan -- acquitted themselves exceedingly
well. Middlesex District Attorney Lynn Rooney did so poorly I almost felt
sorry for her.
Since the burden falls on the defense, Borenstein called first
upon Williams. Williams said that Borenstein would be the first person
to look at the case in a rational way. Williams explained what he meant
by that. In 1987, an unanswerable question was: How could children speak
about such things if they had never happened? That question can now be
answered.
Williams emphasized that Dr. Bruck's evidence is new --
it demonstrates what it means to have a child undergo a coercive interview.
The impact of such coercive interviews is the heart of the matter.
Williams pointed out that experiments have shown that legal and therapeutic
experts often find children more credible when they are not telling
the truth than when they are -- for the simple reason that truth is a constraint.
Fantasies, on the other hand, get embellished with enormous amounts of
detail that make them more believable to others. Williams pointed out that
when a child testifies, jurors aren't aware that they're seeing the final
act of a play, that they don't weigh the impact of all of the rehearsals.
Williams addressed the question of behavioral and physical symptoms.
The defense has placed in evidence a new Mayo Clinic study made available
just one week ago -- it is the largest such study ever done -- that demonstrates
that normal unabused children frequently indulge in sexualized behavior.
Williams pointed out that before the hysteria erupted, no parents were
concerned about their children's behavior or noticed any physical symptoms.
Williams discussed the case of M.T., the only child who had had
vaginitis. On the witness stand, M.T.'s mother had claimed that M/T. had
suffered vaginal pain every night. Yet the same mother had taken
her daughter to a pediatrician the day after the September 1984 parents'
meeting, and the doctor found no signs of abuse whatsoever. M.T.'s first
attack of vaginitis occurred in 1982 -- well before M.T. ever attended
Fells Acres. Before September of 1984, when the hysteria began, the record
shows no evidence of behavioral or physical symptoms in any other child.
The original accusation against Gerald was made by the mother
of a boy, M.C. Under direct examination, M.C.'s mother claimed that she
had only spoken to M.C. once and that he had claimed abuse. Months later,
however, the defense found a tape recording of an administrative hearing.
On tape, the same mother said she had started questioning M.C. the previous
spring, just four days after he'd started attending Fells Acres, and that
she had continued to question him all along. The mother's testimony was
thoroughly impeached in Gerald's trial and neither she nor M.C. was asked
to testify in the trial of Cheryl and her mother Violet.
Williams told Judge Borenstein that they were not asking him to
lower the bar in this case. All they were asking was for the judge to look
at the way the investigators investigated the case, and how law-enforcement
officials browbeat the children, and to concede that the investigation
had no solid foundation. Unreliable evidence had no place in front
of a jury.
At this point Judge Borenstein raised the issue whether, if a
new trial is granted, the testimony of the children should be barred in
perpetuity. Williams and Sultan suggested that it might be more appropriate
just to order a pre-trial hearing on the admissibility of the testimony.
Sultan stated that they weren't asking the court to make new law, but rather
to apply venerable law to a new set of facts.
DA Rooney begin her presentation by making the point that juries
sometimes do acquit people on trial for sexually abusing children.
Borenstein soon asked Rooney whether the Susan Kelley interviews
weren't perfect examples of suggestive interviewing techniques. Remarkably,
Rooney agreed! She said, "When one looks at the interviews conducted by
Susan Kelley, the commonwealth would concede there are throughout these
interviews suggestive techniques that were used by her. Techniques that
would not be used today. There's no question about that."
Borenstein then asked, given that Kelley's methods were highly
improper, how do we determine where the truth lies? Borenstein went on
to point out that at the time of the trial the prosecution had insisted
that Kelley's suggestive techniques were necessary. He also stated
that today no expert worth his or her salt would get on the stand and say
that Kelley's methods were proper. And yet the Commonwealth's case seemed
to rest on the prosecution's belief at the time that the interviews were
proper.
Borenstein also grilled Rooney, asking where in the record there
was any physical or behavioral evidence indicative of abuse before
September of 1984. The prosecution has long made the false claim that the
children's testimony was supported by physical and behavioral evidence.
But when the judge asked Rooney to put her money where her mouth was, she
failed miserably. Rooney could only come up with the already cited case
of M.T., who had been treated for vaginitis (diagnosed as caused by a urinary
infection) in 1982 and in June of 1984.
Borenstein and Rooney also discussed the case of J.B., who "disclosed"
to her mother in the car after a session with Kelley. Borenstein pointed
out that J.B. had never displayed behavioral symptoms, that she had always
seemed a happy normal child.
Rooney then made the claim that sexually abused children very
often appear to be happy normal children with no symptoms whatsoever. In
other words, both the presence and absence of symptoms can be taken
as evidence for sexual abuse! I've never heard a better argument for ruling
that "behavioral evidence" should absolutely be disallowed in these cases.
But I had never expected to hear this argument made by Lynn Rooney.
Rooney also tried to claim that the defense had waived the suggestibility
issue by not raising it earlier, but this argument didn't seem to make
an impact on Borenstein.
Borenstein said that he thought it was very important for juries
-- and judges -- to be educated on these issues. Borenstein pointed out
that in 1986 his instinct would be to believe that something must have
happened in cases such as Fells Acres. (In this, I think Borenstein spoke
for a great many of us who didn't realize at the time the immense injustice
that was being done to the Amirault family.)
Borenstein returned to Rooney's admission that Kelley's interviewing
techniques in this case had been improper. He caught her off guard by asking
her point blank what, in her opinion, the dangers of suggestive
interviewing were. Rooney struggled to find an answer. Finally, she said
that she thought that Kelley had made serious errors in applying peer pressure.
But she never answered Borenstein's question, which was not in what
way were the interviews flawed, but rather why are these flawed interviews
so dangerous. The obvious answer, of course, is that they are dangerous
precisely because they elicit false accusations. But there was no way in
hell Rooney was going to admit that!
Rooney went on to argue that it would be dangerous to allow
juries to see Maggie Bruck's research. Her argument seemed to be that if
juries knew about such research, it would cause people to doubt the credibility
of all child witnesses. (Bruck's intent, of course, has always been to
enhance
the credibility of child witnesses.)
Finally -- as if she hadn't done herself enough damage already
-- Rooney launched into an impassioned summation that ended with the rousing
words, "Justice in this case has to come to an end!" Borenstein quickly
interjected that he didn't believe she quite meant what she had
said and that, perhaps, what she meant to say instead was that justice
in this case had already been achieved. An embarrassed Rooney sat down
amid titters of laughter. (In fairness to Rooney, I confess that I've stuck
my foot in my mouth on numerous occasions.)
Williams' closing remarks were brief. He reminded us that the
prosecution has conceded that Susan Kelley's interviewing techniques were
improper. But Kelley had been touted as the expert. If her techniques
were improper, what must this say about the techniques of the non-experts
-- the parents and the police. Williams pointed out that it was highly
improper for the police to deputize parents to interrogate their own children.
Williams reminded us that in the 1980s it was widely believed
that children that had been sexually abused were like locked vaults that
had to be dynamited open. It was this belief -- now known to be false --
that supposedly justified tactics such as those used by Susan Kelley. Williams
also pointed out that the only "consistencies" in the children's stories
(and the prosecution has made much of the claim of consistency) were mentions
of clowns, secret rooms, and magic rooms. And yet at the parents meeting
in September of 1984, this is precisely what parents were told to question
their children about: clowns, secret rooms, and magic rooms.
Judge Borenstein will hand down a decision on June 12, 1998. Although
anything can happen, I for one am optimistic. For the first time, I now
sincerely believe that Cheryl Amirault LeFave will not return to prison.
And when her case is concluded, we must work together to ensure that her
brother Gerald obtains his freedom as well.
At 9 a.m. on 12 June 1998, Judge Isaac Borenstein delivered an impassioned
ruling supporting Cheryl Amirault LeFave's motion for a new trial. [Click
here
for the transcript of the Court session (short). Click here
for Borenstein's complete ruling (long).]
Borenstein began by dismissing all charges against Cheryl's deceased
mother, Violet. Then he read a four-page summary of his 140 page decision.
Borenstein pointed out that his court was the first to consider the newly
discovered evidence, the evidence that the testimony of very young children
can be unalterably distorted by suggestive interviewing techniques. Borenstein
acknowledged that he appreciated Justice Fried's concerns about finality.
But he pointed out that courts have another, and overriding, concern: they
must avoid injustice.
Borenstein ruled that the evidence presented to him was newly discovered,
and that this evidence demonstrated that "serious overwhelming errors"
had been committed that rendered the children's testimony unreliable. "Overzealous
and inadequately trained investigators, perhaps unaware of the great dangers
of using improper interviewing and investigative techniques, questioned
these children and their parents in a climate of panic if not hysteria."
He emphasized that there were no allegations not produced by interrogation,
and that no physical evidence or behavior symptoms of abuse were
alleged until after the parents had become victims of the panic. As a result,
there was more than a substantial risk that Cheryl was unjustly convicted.
The injustice was compounded by further errors -- the unconstitutional
seating arrangements of the child witnesses; the admission of testimony
about child pornography by a postal inspector, even though no evidence
was ever offered that child pornography had been produced; and the ineffective
assistance of prior counsel in appealing her conviction. Borenstein then
ruled that at a new trial, the children would be barred from testifying,
because: "they have been subjected to very serious and repeated impermissible
interviewing and investigatory techniques and no independent evidence exists
to support their claims. Thus, their testimony has been forever rendered
unreliable."
Borenstein pointed out that there were a number of victims of "this
sad and tragic case." The parents and families were traumatized by a bad
investigation in which "the procedures themselves were abusive to the children
and to their families." Cheryl Amirault LeFave, the "victim of a serious
miscarriage of justice." Borenstein added that "her spirit may never be
intact." Last but not least, the justice system itself has been a victim.
Although the prosecution, "grew out of a clear and passionate concern for
children, these kind of passions carry great risks." Fundamental principles
were set aside. Justice was not done and that is "intolerable to this Court."
Borenstein asserted that "the evidence in this case is nothing short
of overwhelming with improper interviewing techniques." "Investigators,
however well intentioned, just would not take no" for an answer and "overwhelmed
these kids." As a result, "the errors were grievous."
In his moving conclusion, Borenstein stated that police make mistakes,
prosecutors make mistakes, judges make mistakes, and juries make mistakes.
"Today I am not making a mistake," he said. "Owning up to mistakes, even
serious ones, is far from being a sign of weakness; it is evidence of courage
and strength."
Judge Borenstein's courageous words fell on the deaf ears of prosecutors
Catherine Sullivan, Lynn justice-has-to-come-to-an-end Rooney, Thomas Reilly,
Attorney General Scott Harshbarger, and a major power behind Harshbarger's
campaign for governor, the Boston Globe. These people all want poor
Cheryl Amirault -- a sweet and gentle human being if there ever was one
-- locked behind bars where she can no longer remind Massachusetts voters
of the desperate lengths that their ambitious politicians will go to, driven
by an insatiable lust for more and more power, unchecked by conscience
or the most rudimentary sense of human decency. In the 300 years that have
passed since the Salem Witch Trials those in power here still have not
learned that not justice but senseless and cruel hysteria must come to
an end. Incredibly, Judge Borenstein's ruling has been appealed to the
Supreme Judicial Court, which is very likely (given the composition and
biases of the Court and its recent history) to rule against her.
On January 6, 1999, an Amicus curiae brief supporting the
prosecution is filed with the Massachusetts Supreme Judicial Court by One
Voice, an alarmist child-protectionist group founded by former Miss
America, Marilyn van Derbur. The brief argues that the alleged
victims in Cheryl's case be allowed to testify. Also signing the
brief are The Alabama Coalition Against Rape, The Victim Center, Kathleen
C. Faller, Alan Scheflin, and Charles Whitfied -- author
of Healing the Child Within and other exploitative pop "self-help"
books.
On April 16, 1999, the Amirault defense attorney's filed this brief with
the Supreme Judicial Court. Oral arguments are scheduled for May 6, 1999.
The SJC Hears Cheryl's Appeal
Unfortunately, I had to be out of town on May 6. My partner, Jim D'Entremont,
attended the hearing and prepared a report for my mailing list. Here
is Jim's account:
This is Jim D'Entremont. This morning at 9:30 the Massachusetts
Supreme Judicial Court (SJC) heard arguments in the sexual abuse case of
Cheryl Amirault LeFave. Bob Chatelle was unable to attend the hearing,
but asked me to write down my impressions and send them to his mailing
list.
The last time this case reached the SJC, on March 25, 1997, the state
high court rejected Judge Robert A. Barton's 1995 reversal of the convictions
of Cheryl and her mother, the late Violet Amirault. The issue in
that appeal had been the allegedly child-friendly seating arrangements
created for young witnesses at the Amiraults' original trial. According
to Judge Barton's ruling, "The special seating arrangements for the children
prevented justice from being done" and amounted to "a clear constitutional
violation of the defendants' right to a fair trial" -- i.e., their Sixth
Amendment right to confront the witnesses against them. The Middlesex
County D.A.'s office won its appeal not simply because the SJC disagreed
-- the justices conceded, in fact, that the original trial was flawed --
but because, as Justice Charles Fried shockingly articulated on behalf
of the 6 to 1 majority, the court felt that "the community's interest in
finality" should prevail. In other words, when a case seems to have
gone on too long, justice be damned. Cheryl and Violet's convictions
were accordingly reinstated, and they were denied a new trial. A
month later, the SJC refused to review this decision.
On May 5, 1997, Judge Barton, presented with another motion for a new
trial by the defense and a demand to return the women to prison by the
prosecution, recused himself from the case, citing a "substantial risk
of a miscarriage of justice" and stating that he could no longer judge
the case impartially. Judge Isaac Borenstein, who then was assigned
to the case, voided the convictions. The D.A.'s office appealed
this decision. After Violet's death (in September 1997), Cheryl's
attorneys
announced that new evidence had been obtained that supported the case
for a retrial. The SJC, which was to have heard arguments in the
D.A.'s new appeal in December 1997, returned the case to Judge Borenstein
to determine whether the new evidence was admissible.
At the subsequent February 1998 hearing, the defense team produced a
new expert witness, psychologist Dr. Maggie Bruck of McGill University,
who testified that the interviewing techniques used in the Amirault case
were deeply flawed, coercive, based on false assumptions, and driven by
"extreme interviewer bias" that produced untenable results. Child
psychiatrist Dr. Diane Schetky also testified as to the credibility of
Bruck's findings and the stature of her professional standing. Additional
evidence was presented to Borenstein two months later. On June 12,
1998, Judge Borenstein issued a 140-page decision dismissing all charges
against Violet, granting Cheryl's motion for a new trial, and ruling that
at her new trial, none of the (now late-adolescent) allegedly abused children
would be permitted to testify, since "their testimony has been rendered
forever unreliable."
Eloquent, principled, rigorous and thorough, Borenstein's ruling should
have blown away the prosecution's case once and for all. But the
Middlesex County District Attorney's office persists obsessively in its
efforts to return Ms. LeFave to prison. Pinning their hopes to the
present composition of the Supreme Judicial Court, which still includes
the appalling but supposedly soon-to-retire Charles Fried, this cabal of
child-savers cling to their cause with with a kind of blissed-out fervor
that is frightening to behold. ( In addition to Fried, four of the justices
who comprised the majority in the 1997 "finality" decision are still with
the SJC. Only Justices Marshall and Ireland, recent appointees, have
not previously encountered the Amirault case.)
Misdirected by a security guard, I arrived on time for today's hearing
but too late to enter the courtroom. My impressions are therefore
limited to what I could hear through the intercom in an adjoining room.
The courtroom was filled to capacity, with about two dozen people standing
in the hallway and about fifteen more in the anteroom where I listened
to the proceedings and took notes.
I knew I'd come to the right place when I saw prosecutor Lynn Rooney,
who was attending the hearing in the company of her hair. Ms. Rooney,
memorable for not only her hair but her statement "Justice in this case
must come to an end," had done such an exquisitely terrible job of arguing
the prosecution's case before Judge Borenstein that I hoped she'd be allowed
to go before the SJC and make the prosecution's case the laughingstock
it deserves to be. Unfortunately, the prosecution's
case was entrusted to the slicker, more focused Catherine Sullivan,
a clockwork yuppie with a crisp delivery and a cool veneer.
The hearing lasted about one hour, with the time evenly divided between
the prosecution and the defense. Sullivan began by reiterating one
of the prosecution's favorite misrepresentations: "All but one of
the children in this case gave detailed accounts of sexual abuse before
being subjected to any interviews," promoting -- unchallenged -- the myth
that spontaneous disclosures of abuse had come from the alleged victims.
During the course of her 25-minute presentation, she repeated this
statement with slight variations in wording at least three times.
Her tactic was to discredit the introduction of new evidence on two
fronts. First, she claimed that Dr. Bruck's findings and those of
others in her field were nothing new, that such studies had been
available at the time of the original trial, and that the subject of
interviewer bias had been raised and disposed of at that time. "Researchers
are always working to increase the ecological validity of
the research paradigm," Sullivan stressed, apparently with a straight
face, but Maggie Bruck's research simply did not constitute new evidence.
Second, Sullivan claimed that "None of the studies has any relevance
to the facts of this case," since in every case but one the children had
given "specific and detailed disclosures" outside the context of an interview.
She added that the one post-interview revelation was "such a compelling
and emotional disclosure" that it falls outside the criteria of the studies.
Justice Margaret Marshall was at this point at least able to insert a question
about disclosures of abuse happening in response to questions coming from
family members. Sullivan said she didn't like to refer to questions
by family members as "interviews." In passing, Sullivan pornographically
revisited some of the details of
the alleged abuse. Justice Lynch, who otherwise said little,
was particularly interested in the children's "sexualized behavior" (as
if a child would only act out sexually after having been abused by an adult)
and whether parents questions weren't, after all, prompted by such behavior.
Sullivan was asked remarkably few tough questions and got through her
presentation virtually unchallenged by anyone except Justice Marshall.
Fried, at one point, asked for clarification on why the studies don't matter.
Justice Greaney interjected a comment on the prosecution's position that
the defense was not really presenting new evidence and therefore failing
to justify the reversal of Cheryl's
conviction. Sullivan reviewed the history of legal machinations
in this case and that of Cheryl's brother Gerald, apparently trying to
lend support to Fried's "finality" doctrine, and ended by reminding the
court that Dr. Bruck was the fourth expert witness to be called by the
defense.
Dan Williams and Jamie Sultan split the time allotted to the defense
team. Williams, who was not at his best, spoke first. In response
to a question from Justice Greaney, Williams agreed that "miscarriage of
justice" should be the operative standard for overturning Cheryl's conviction,
and that this "set the bar high" for the defense. Williams began
with a nod to Fried, stating that he recognized "the institutional concern
for opening the floodgates." Fried was unimpressed. Williams
tried to stress the uniqueness of the Amirault case, but made that point
unconvincingly. Fried said it was extraordinary only in terms of
the publicity it had engendered. "We see cases all the time where
children have been abused by caretakers," he noted, insisting that there
was nothing unusual about the Amirault case at all. When Williams
referred to "our autopsy of this case," Fried said, "It's not an autopsy,
it's an exhumation." (People from the D.A's office who were standing
near me giggled approvingly at this.)
In response to the contention that Dr. Bruck had nothing new to offer,
Williams said, "The crux of our case is that Dr. Bruck was the first expert
who could testify about the impact of coercive questioning," the
ways in which suggestive questioning can lead children to make statements
about bizarre sexual behavior and to bring forth false allegations.
Greaney suggested that many other investigations in custody disputes
and other abuse cases had been conducted the same way
without having been challenged. Williams pointed out that investigators
had approached parents before their children had exhibited any symptoms
and had, in effect, demanded that the parents discover symptoms.
He reviewed the fact that the initial "disclosure" had come after a particular
child been grilled for seven months by his mother. Lynch, who seems
to have an abiding interest in "sexualized behavior," asked if such behavior
had prompted the mother's suspicions. Williams pointed out that the
mother was on the lookout for signs of sexual abuse because the boy's uncle
(who also questioned the child) was an alleged victim of sexual abuse.
In response to a question by Fried about the importance of the
"impact" of coercive questioning, Williams explained that without the kinds
of insights provided by Dr. Bruck, jurors would, for example, not understand
how children could make statements about bizarre sexual matters without
having experienced them. Chief Justice Wilkins, who otherwise said
next to nothing, at this point intervened and told Williams to "Leave it
there." Jamie Sultan, who seemed more up for the
occasion, then took over.
Sultan's request that the SJC "look very carefully at Judge Borenstein's
finding" and look more closely at the facts met with some testiness. Fried
snapped that the court had already examined the record. Sultan then
stressed that while the SJC has indeed sifted through this case in the
past, "This court has not examined the record in the light of newly discovered
evidence.... We now have a decade of research behind us..there has
been a sea change since 1986-'87." In response to a question from
Marshall, Sultan pointed out that the expert testimony for the prosecution
with regard to physical evidence was now thoroughly discredited.
Citing an amicus brief submitted by 29 prominent scientists, Sultan closed
by again urging the court to pay close attention to Borenstein's 140-page
summary of his findings and uphold last summer's ruling. Although
Sultan grew impassioned as his time ran out, there was no clear breakthrough.
After the hearing, some of Cheryl's supporters were guardedly optimistic,
others were openly depressed. Among the spectators were Cheryl's
husband Al LeFave, Gerald's wife Patty and her three children, Frank Kane
of FMSF, Hugo Cunningham, Tom Mashberg of the Boston Herald,
attorneys Harvey Silverglate and Wendy Kaminer, and Dorothy Rabinowitz
of the Wall Street Journal. "It did not go well," said one
supporter who has followed the case closely and has observed the SJC in
action many times. Most people seemed to feel that the decision could
go either
way, and that the outcome was impossible to guess. A ruling is
expected in four months.
A disconcerting footnote -- purely by accident, I rode an elevator down
from the 13th floor of the Suffolk County Courthouse with a gang of prosecutors
from the Middlesex County D.A.'s office. In their midst was Ms. Sullivan,
who had argued their case before the court. They were bubbling with
glee; it was like encountering a group of actors backstage after a well-received
performance. Everyone was congratulating the star. "Good job!"
"You did great!" "You didn't need to lose any sleep over that one,
boy!" "I was so psyched!" burbled Sullivan. One gray-suited
thirty-something said, "You went right in there with a full command of
the case, a knowledge of the law, substantive facts...." "At 6 a.m.,"
said Sullivan, savoring the moment, "I just knew I was gonna go for the
studies."
All these people seemed to be characters from American Psycho made
flesh. The Middlesex County District Attorney's office is an ethical
black hole. I left the courthouse annoyed, chagrined, and deeply
worried.
-- Jim D'Entremont
Thanks to Hugo Cunningham for comparing notes and sharing insights.
