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
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.
Click here for "A Fells Acres Chronology: Massachusetts Injustice From Hathorne to Harshbarger."
Read "Travesty of Justice," an unprecedented editorial in Massachusetts Lawyer's Weekly.
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.
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.
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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.
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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.
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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.
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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.
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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.
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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.
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:
The SJC Hears Cheryl's Appeal
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.
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