Articles culled from the Witchhunt Mailing List. Opinions are those of the authors:
Date: Mon Mar 24, 1997 5:05 pm EDT
From: Ejclaw
MBX: Ejclaw@aol.com
Subject: Massachusetts SJC reinstates convictions on Fells Acre defendants
BOSTON (AP) - In the latest twist in the long Fells Acres day care saga, the
state's highest court today reinstated the child molestation convictions of
Violet Amirault and her daughter, Cheryl Amirault LeFave.
The Supreme Judicial Court, in a split decision, also denied a motion for a
new trial filed by Mrs. Amirault's son, Gerald Amirault.
Violet Amirault and her daughter have been out of prison for nearly two
years, following a lower court's ruling that they should be granted a new
trial.
The court rejected the family's argument that they did not face the children
who accused them of abuse at their Malden day care center because some of the
boys and girls testified by videotape, or by facing the jury instead of the
defendants.
While conceding that the seating arrangements violated the defendants'
constitutional rights, the SJC said the trial ensured their rights in other
manners and the Amiraults raised their challenge too late.
"We conclude that in these circumstances, the defendants have not met their
burden of showing that there was substantial risk of miscarriage of
justice," Associate Justice Charles J. Fried wrote in the 50-page majority
opinion.
In his dissent, Associate Justice Francis P. O'Connor said he was not
convinced beyond a reasonable doubt that the seating arrangement did not
affect the outcome of the trial.
"Our desire for finality should not eclipse our concern that in our courts
justice not miscarry," O'Connor wrote. He said he would have ordered a new
trial for all three defendants.
The three were convicted of sexually molesting about 40 children, ages 3 to
6, at the school which the family ran. The facility was shut down by
authorities following Gerald's arrest in 1984. The two women were indicted in
1985.
Since the allegations were first raised, the Amiraults have maintained their
innocence. New information on memories and a mindfulness of a hysteria of the
time added momentum to their appeal for reconsideration.
Lawyers for the Amiraults argued that all three family members should get a
new trial because they did not get to meet their accusers face-to-face in
court.
"Children's demeanor really is like a truth serum. When a child mumbles,
when a child looks away, it speaks volumes to the child's credibility," the
family's attorney, Daniel Williams, said during arguments before the
seven-member SJC in October.
The appeal was based on a 1995 SJC decision that overturned a conviction for
a defendant who did not get to face his accusers in court.
Williams argued that ruling should be retroactive. A jury, he said, must see
the face-to-face dynamic between a defendant and an accuser in order to reach
a verdict.
The Amiraults' incarceration had been upheld through five previous appeals.
Prosecutors argued before the high court that the family was now seeking
release on a technicality.
Judge Robert Barton set the women free on bail and ordered a new trial for
them in 1995. He said they were denied their constitutional right to face
their accusers because four children who testified against them had faced the
jury, not the women.
But while Barton overturned the women's conviction, Superior Court Judge
Elizabeth J. Dolan denied a similar appeal by Gerald. Dolan had presided over
Gerald's original trial, while Barton did not.
State prosecutors appealed Barton's decision and told the SJC that Violet and
Cheryl should be returned to prison - and that Gerald should remain there.
There was no immediate word about whether or when the women would be returned
to jail.
The women were originally sentenced to eight to 20 years. Gerald Amirault,
who is in his 40s, is serving a sentence of 30 to 40 years.
. . .
Date: Mon Mar 24, 1997 8:01 pm EDT
From: Wakefield & Underwager
MBX: under006@gold.tc.umn.edu
Subject: Amiraults
This is a copy of a letter we just faxed to the govenor of Massachusettes
asking for him to pardon or take some action regarding the Amiraults.
March 24, 1997
Governor William Weld
State House
Boston, MA
Dear Governor Weld:
We have just been informed that the Supreme Court of Massachusetts has
today reinstated the child molestation convictions of Ms. Violet Amirault
and Ms. Cheryl Amirault and refused a new trial for Mr. Gerald Amirault.
Governor Weld, this is compounding one of the most egregious travesties
of justice in the history of our country. It is redolent of the witch
trials in Salem in 1692.
All over this country and around the world convictions such as the
Amirault case are being reversed. Either charges dismissed or acquittals
affirm the understanding that in the 1980s the early convictions for
bizarre and improbable sexual abuse, dependent only upon the coerced
statements of young children influenced by adults with their biases and
unfounded dogmas, are wrongful convictions. The Supreme Court of
Massachusetts has compounded the error and committed acts of the same
genre as those of the magistrates of the Seventeenth Century. There is
good scientific research showing that our justice system has a systemic
error. It does not fairly redress the errors at lower levels but simply
affirms errors as an appealed case progresses up the layers of the
justice apparatus.
Governor, to continue these convictions also does great harm to the
children and to all the children of Massachusetts. It perpetuates a
system that teaches children who have not been abused to believe they
have been. This makes them victims just as much as if they had been
actually abused.
Please use your power to pardon or commute the sentences of these
innocent people wrongfully convicted.
Sincerely yours,
Ralph Underwager, Ph.D.
Hollida Wakefield, M. A.
. . .
Date: Wed Mar 26, 1997 8:30 am EDT
From: Nicholas Peters
MBX: mpeters5@erols.com
Subject: The Amirault Case: The Outrage
THE AMIRAULT CASE: THE OUTRAGE
In the Amirault case, The Massachusetts Supreme Court majority stated
that their review of the case "does not awaken doubts of sufficient
magnitude to warrant upsetting the convictions ". In other words
they state they are unable to find sufficient reasons to reverse
the outrageous convictions of the Amirault family.
In order to issue this gross edit the Massachusetts
Supreme Court majority had to ignore:
1. The intense police, and sometimes parental,
pressure on the children to say they were abused. The
police investigators regularly asked leading and suggestive
questions. Moreover the investigators would not take a no
to a question of molestation as an answer, but asked the
same question until the desired positive response to the
molestation query was elicited.
2. The ridiculous nature of the accusations that the
children finally enunciated. These accusations included a
nonexistent magic room, a hostile robot, a clown custom
never found and other absurdities.
3. The research by Dr. Stephen Ceci, Dr. Elizabeth
Loftus, and many other researchers demonstrating that
children can be led by adults to provide false answers to
questions and tell untruths. Moreover, these researchers
have demonstrated that it is possible for manipulative
adults to plant false memories in the minds of children and
even adults. Much of this research is of fairly recent
origin. Yet this vast evidence was totally ignored by the
majority drones on the Massachusetts Supreme Court.
4. The fact that the Fells Acre Pre School that the
Amiraults ran was totally accessible to parents, postmen,
and any other visitors. It is extremely unlikely that a
long term pornographic ring could operate in such
surroundings undetected. Moreover, all the children went
home every night. According to the story told by Scott
Harshbarger and his fellow witch hunters, the Amiraults were
totally unconcerned that any one child of the many children
in the school would ever tell about this immense ring.
5. The total lack of physical evidence. The police
could find no pornographic photographs, no sexual objects,
and any other type of physical material demonstrating or
suggesting that child molestation took place.
Considering the above points, it is obvious that the
Massachusetts Supreme Court majority was not interested in
justice, but in preserving and covering up the Scott
Harshbarger witch hunt and the miasmal Scott Harshbarger
political and legal career. Apparently this is what the
Massachusetts legal establishment has come to.
The basic question is why. In the 1960's it was
fashionable among some college professors to blame
capitalism for every ill afflicting the American people and
American society. However this explanation will not do.
Even a superficial and cursory examination of the record of
capitalist and noncapitalist societies will demonstrate that
lack of capitalism does not cure social problems but often
adds new ones. In these witch hunts capitalism is a
mitigating force, not an aggravating one.
Instead one must look to the basic culture, which is
heavily influenced by the Puritan past. Among the cultural
baggage of Puritanism was the notion that childhood
innocence is pure and moral, not merely amoral as any
rational examination could ascertain. The puritan
sentimentality is a basic cause of the uncritical belief of
the legal establishment of the absurd testimony of children
both in the Salem 1692 witch hunt and the present day
Amirault witch hunt. Another puritan notion is that sex, or
at least illegal sex, is so evil that innocence is no
excuse. The effect of this particular conception on the
Amirault case should be obvious.
In Massachusetts and often elsewhere in America it is
apparent that Puritanism has not been gone, but only been in
remission in the intervening decades. Puritanism and the
puritan witch hunts have only been awaiting the opportunity
to raise their hideous heads again to maim and destroy
innocent lives. It is in this puritan cultural sewer that
Scott Harshbarger, Thomas Reilly, Janet Fine, Charles Fried,
and other scumteria can squirm around with impunity.
From the start Massachusetts has been the site of the
most vicious and hideous strains of Puritanism. It was in
Massachusetts that the Salem witch hunt occurred. It was in
Massachusetts that the legal authorities undertook the most
bizarre and intrusive enforcement of the puritan morality.
For example, a male and female sleeping in the same room and
not in the same bed were sometimes prosecuted for
fornication. And in the more recent decades it seems the
Massachusetts legal establishment has been the most
vociferous in its defense of the modern witch hunt.
However, unfortunately, many other states are not that
far behind.
It seems that this puritan cultural dementia can not be
destroyed and can not be ended. Puritanism will not go
away. It can only be somehow contained. Concerned jurists
and citizens must accept the existence of Puritanism and
make bulwarks so that it does not contaminate the legal
system with its gross and demented perversities. These
actions are the most that can be accomplished, at least in
the foreseeable future.
Date: Wed Mar 26, 1997 10:53 am EDT
From: Herman Ohme
MBX: hohme@dcci.com
Subject: WSJ - Massachusetts Justice
The Wall Street Journal -- March 26, 1997
Review & Outlook
Massachusetts Justice
The Supreme Judicial Court of Massachusetts issued its
latest ruling on the Amirault case Monday. The opinion,
written by Associate Justice Charles Fried, reinstates the
conviction of Violet and Cheryl Amirault--which had been
overturned in 1995--and also denies Gerald Amirault's
appeal for a new trial. Violet Amirault, 75, and her
daughter Cheryl will consequently be re-arrested and
returned to prison sometime in the next two weeks, or
possibly, days. The Amirault women have already served
eight of their eight-to-20-year sentence. Gerald, in prison
since 1986, is serving 30 to 40 years.
From the evidence of this opinion, it is clear that the Court
had to deal with certain difficulties in this case--among them
the fact that the Amiraults' right to face their accusers had
clearly been denied them. Furthermore, it is no longer any
secret that the children had here, as in other cases, been
led--to put it mildly--to produce accusatory testimony,
including charges so improbable as to defy belief. The Court
was up to the challenge as proved by Justice Fried's
opinion--a document so larded with reasoning in support of
the unreasonable as to be worthy of study by generations of
law students to come.
As worthy, indeed, as the prosecutors' case itself, to which
this opinion bears so strong a resemblance, intellectually and
morally speaking. The Amiraults had certainly been denied
the right to face their accusers, the opinion notes, but since
their trial defense counsel had made no objection at the time
to the seating arrangements for the child witnesses, he had
waived the defendants' rights under the State's face-to-face
requirements. That no such face-to-face requirement in fact
existed in Massachusetts at the time the Amiraults were
tried, in the 1980s, is according to the Court no mitigating
argument.
The strong dissenting opinion by Associate Justice
Francis P. O'Connor, on the other hand, took a mere 11
pages to get to the heart of the matter: that in both the
trials of the Amiraults "a substantial risk of
miscarriage of justice has been established."
The 6 to 1 opinion furthermore held that though investigators
may have led children to make accusations that might
otherwise not have occurred to them, and that some of the
charges were highly improbable, this was no indication that
the childrens' testimony wasn't reliable. Justice Fried's
opinion did note, interestingly enough, that charges had been
overturned in the other cases around the country involving
questioning by zealous interviewers, prosecutors, and an
atmosphere of hysteria.
Only in this case, the argument seems to hold, are charges
that have been made under suggestive and leading
questioning to be considered reliable. Only in this state
apparently is there reason to deny that convictions like those
obtained in the Amiraults' case raise "substantial risk of
miscarriage of justice.'' Everywhere else in the nation, in
short, gravity makes apples fall down. In Massachusetts,
they fall up.
Everywhere else such cases have arisen, one of the central
features of a democratic society--its self-correcting
mechanisms--eventually came into play and undid the work
of hysteria and fanaticism. Not, however, in Massachusetts,
whose Supreme Judicial Court seems to have extended
every effort--and employed a technicality--to isolate itself
from that protective mechanism. The Court, of course, had
its reasons--not least the fact it had already ruled in its
previous denials of the Amiraults' appeals that there was no
problem of any consequence in the way the childrens'
testimony had been obtained. To rule otherwise now was to
cast doubt on the wisdom of its previous judgment
Not the least notable aspect of the opinion by Justice Fried,
who had previously served as U.S. Solicitor General under
Ronald Reagan and George Bush, was the part citing the
need for "finality" in this case--a consideration, we learn,
that weighed heavily in the Court's conclusion that the
Amiraults should not have a new trial. The majority opinion
takes a lot of pages--and a Harvard law professor--to
produce so elaborate an evasion of the by now obvious
facts: that is, that the Amiraults were convicted on the basis
of accusations obtained by interrogators interested solely in
obtaining accusatory testimony, and who persisted till they
did, however long the children said nothing had happened to
them. As one police interrogator admitted, questioning the
Fells Acres children was "like getting blood from a stone."
The strong dissenting opinion by Associate Justice Francis
P. O'Connor, on the other hand, took a mere 11 pages to
get to the heart of the matter: that in both the trials of the
Amiraults "a substantial risk of miscarriage of justice has
been established." And further, "Our desire for finality
should not eclipse our concern that in our courts, justice not
miscarry."
The Supreme Judicial Court of Massachusetts--the oldest
functioning court in North America--was established by the
Massachusetts Bay Colony precisely in response to the
Salem witch trials. As one observer of the prosecutors in the
Amirault cases observed, their counterparts in an earlier
time--in Salem--also went to bed serene in their rectitude.
The same undoubtedly can be said of the authors of the
judgment that will send the Amiraults back to their
prisons--in the interest of finality.
Date: Wed Mar 26, 1997 10:58 am EDT
From: Herman Ohme
MBX: hohme@dcci.com
Subject: WSJ#2 - Convictions reinstated
The Wall Street Journal -- March 25, 1997
Convictions Are Reinstated In Fells Acres Day-Care Case
Associated Press
BOSTON -- In the latest twist in the Fells Acres day-care
saga, Massachusetts' highest court reinstated the
child-molestation convictions of Violet Amirault and her
daughter, Cheryl Amirault LeFave.
The Supreme Judicial Court, in a split decision, also denied
a motion for a new trial filed by Mrs. Amirault's son, Gerald
Amirault.
Violet Amirault and her daughter have been out of prison
for nearly two years, following a lower court's ruling that
they should be granted a new trial.
The court rejected the family's argument that they didn't face
the children who accused them of abuse because some of
the boys and girls testified by videotape, or by facing the
jury.
While conceding that the seating arrangements violated the
defendants' constitutional rights, the court said that the trial
ensured their rights in other manners and that the Amiraults
raised their challenge too late.
The defendants were convicted of sexually molesting about
40 children, ages three to six, at the school which the family
ran. The facility was closed by authorities following Gerald's
arrest in 1984. The two women were indicted in 1985.
Since the allegations were first raised, the Amiraults have
maintained their innocence.
There was no immediate word about whether or when the
women would be returned to jail. They were originally
sentenced to eight to 20 years. Gerald Amirault is serving a
sentence of 30 to 40 years.
Date: Wed Mar 26, 1997 11:19 am EDT
From: Mark Balen
MBX: mdbalen@vianet.on.ca
Subject: Re: Ed Collins reformatted
Balen wrote
There have been great advances in DNA testing recently. Is this
grounds
for a successful appeal in all criminal cases where such evidence was
used
or available. Should it lead to success on appeal if it is not a
ground for
the appeal.]
Ed wrote:
I did say "relevant," didn't I? Can you read? I would guess it would
probably
not be too relevant in most jaywalking cases.
You did say relevant. In fact you said relevant DNA knowledge:
"relevant new DNA knowledge discovered in 1997". My question (above) was
whether appeals would be successful in cases where DNA evidence ( "such
evidence" -see above ) was used or available at the time of initial
prosecution. I later suggested that advances in knowledge are probably
less important than the existence of new cogent and probative test
results.
...............
Balen wrote:
I think the analogy to DNA evidence argues exactly in the opposite
direction. However, when the art/science of psychology progresses to
the state that new, pretty conclusive, test result can be obtained -
well that is a different matter.
Ed wrote:
So much for the "great esteem" you have for Ceci and Bruck.
Sorry Ed, I have missed the point. Ceci wouldn't make the mistake (I
don't think) of suggesting that psychological assessment at this stage
would lead to new pretty conclusive test result, nor do I think that Ceci
would think their work comes close to providing new, pretty conclusive
evidence one way or the other. One of the reasons I do have such great
esteem for Ceci is the care with which he has expressed opinions within
the limits set by the discipline and the research.
Ed wrote:
You are exhibiting a serious comprehension problem here. Please read the
opinion. There were several issues raised in the opinion. Face to face
confrontation is required by the Massachusetts Coonstitution (that's one
issue). The court asserts that the right to confrtontation was waived
(that's
a second issue). If it was waived, what should the court do? (that's
another
issue). It still had an obligation to inquire whether the was a
substantial
miscarrriage of justice (that's yet another issue). I addressed only
Part IV
of the opionion, which is where the court raised and discussed the
miscarriage of justice issue.
I have plenty of appeal experience. Have I assisted you?
Yes indeed you have. In my jurisdiction the issue of substantial wrong or
miscarriage of justice works differently and this has led to the serious
comprehension problem you note. Here, (and I will check on Massachusetts
just out of curiosity but accept that you are correct) an appellant may
successfully argue his grounds for appeal and still fail if the error
doesn't lead to a risk of substantial wrong or miscarriage of justice.
From what you say, things there are different in Mass. to the extent that
"substantial miscarriage of justice" appears to be a kind of general catch
all substantive ground for appeal.
In reading the majority and minority opinions (which I may have done too
quickly) I got the impression that the miscarriage of justice must flow
from the error in law appealed from. In this case that would have been
the seating arrangement. I take it from your note I am mistaken about the
law in Massachussets. Are there similar appeal provisions in your other
united states?
Balen
. . .
Date: Wed Mar 26, 1997 1:02 am EDT
From: Mark Balen
MBX: mdbalen@vianet.on.ca
Subject: Re: Ed Collins reformatted
Mr. Collins writes:
The major study of Ceci and Bruck, recognized (but obviously not
assimilated) by the court, itself appeared only in 1995 and the
earlier work of Ceci, also cited by the court, appeared in 1993, both
years after the original appeals There is no court in the land, on the
grounds of an institutionally cherished "finality" in the legal
process, that would not allow a criminal defendant to rely upon
relevant new DNA knowledge discovered in 1997, or even later, to
reverse a wrongful conviction made in 1986 and affirmed in 1989.
Carry this thought through. There have been great advances in DNA
testing recently. Is this grounds for a successful appeal in all
criminal cases where such evidence was used or available? Should it
lead to success on appeal if it is not a ground for the appeal?
Of course the situation might be different if there was new, highly
cogent test results.
This
court, however, would (and does) ignore comparable intervening
psychological research.
The comparison tends to the conclusion that the court was consistent,
doesn't it?
To be sure, the Amirault court goes on to say: "Since we are now
conside ring whether there is a substantial risk of a miscarriage of
justice we do not treat our prior consideration of the record as
preclusive. But we reach the same conclusion."
Well, indeed they do, and they do so 8 years later by ignoring
completel y relevant scientific results reported in the intervening
period.
Perhaps councel with appeal experience can assist me. The issue was
whether the absence of "face to face" seating led to the risk of
substantial risk of miscarriage, wasn't it.
As the court itself says, ostensibly on the issue of miscarriage of justice:
The children faced full cross-examination, testified under oath,[22]
and were aware of the defendants' presence. Opportunities for
face-to-face interaction took place periodically throughout the
trial. The number of children testifying, the evidence of physical
injury, and the parents' testimony regarding the bizarre, disturbed,
and inappropriately sexualized behavior of their children,
Commonwealth v. LeFave, 407 Mass. 927, 930 (1990); Commonwealth
v. Amirault, supra at 225, and the extent to which these factors
corroborated one another, combine to persuade us that the
convictions do not raise a "substantial risk of a miscarriage of
justice."
In brief, the majority discloses it is "persuaded" by ignorance.
With respect to the testimony of the children, in addressing the issue
of substantial miscarriage of justice, the court in fact only
addresses the confrontation issue again.
Precisely my point. The court only addresses the confrontation issue.
Is that because it is the ground for the appeal. I get the sense Mr.
Collins argues the Court should, once an appeal comes before it, take up
any argument and consider any reason for granting or refusing the
appeal.
The court may dutifully have
cited Ceci and Bruck earlier in its decision, but it either did not
read the study or did not understand the results.
There is no analysis in the decision of the children's testimony
with respect to the scientific results reported by Ceci and Bruck (or
by anyone else who published the additional studies that contributed
to that "unified interpretation"), and this in the section of the
majority opinion that ostensibly deals with the key question crucial
to its ultimate result whether or not there was a substantial
miscarriage of justice.
I read the decision a little differently. The miscarriage of justice
wasn't very critical. They found that a constitutional right had been
waived, therefore the appeal should be dismissed. They went on to
consider if the appeal might have succeeded had the waiver not been
effective. In that case the appeal would succeed depending on whether
there was a risk of miscariage of justice. They found the appeal would
not meet that test either. The appeal fails either way.
The same can be said with respect to most of
the rest of this paragraph. Alas, the court just doesn't understand
the science. Worse still, it completely ignores it where it is most
relevant. The opinion is not only cruel and craven; it is also
ignorant.
Neat. The court should be ashamed, it is cruel and craven and ignorant
and doesn't understand science. Can someone who knows some law tell us
whether Mr. Collins understand the tests and the practice in Appeal?
The same was true of the Massachusetts Court of Oyer and Terminer in
169 2. The cruelty and ignorance of that court came to an end
("finality" be damned) only when a group of Boston ministers urged "a
very critical and exquisite caution" in the use of spectral evidence
(that culminated in Increase Mather's admonition that "It were
better that ten suspected witches should escape, than that one
innocent person should be condemned."). The Amirault court, by
ignoring the significance and relevance of the kind of research
reported in Ceci and Bruck, prefers to rely on its own version of
spectral evidence in addressing the question whether there was in fact
a substantial miscarriage of justice in 1986 and 1989. Shame.
Lets try to use the same standard in both cases. Perhaps the modern
court should indeed approach psychological evidence, including the work
by Cecci and Bruck (for which work I have a great esteem by the way)
with very critical and extreme caution. How does that lead to a
different result in this appeal given that the viva voce evidence would
be left quite undisturbed.
Here, this court clearly prefers "finality" to making appropriate
use of new DNA evidence (by analogy). It pays a dear price to purchase
that "finality:" ignorance of new and relevant scientific knowledge
and the inability or unwillingness to appreciate or analyze it. That
not only unfairly injures the Amiraults; it disturbs the commonweal.
I think the analogy to DNA evidence argues exactly in the opposite
direction. However, when the art/science of psychology progresses to
the state that new, pretty conclusive, test result can be obtained -
well that is a different matter.
Balen
. . .
Date: Fri Mar 28, 1997 1:45 pm EDT
From: Ejclaw
MBX: Ejclaw@aol.com
Subject: Text of Amirault Decision
Attached if the text of the Amirault decision in ASCII format (I
hope).
I thought I had posted this a few days ago, but I now understand that
some of you received it in intelligible form, some did not.
I have tested this format by sending it successfully to another. If
you do not receive it in readable form, please let me know.
Read it and weep (if you can get over your anger).
ejclaw@aol.com
Edward J. Collins
Post Office Box 381330
Cambridge, Massachusetts 02238-1330
[617]-492-3333
COMMONWEALTH vs. VIOLET AMIRAULT
(and eleven companion cases).[1]
COMMONWEALTH vs. GERALD AMIRAULT.
Middlesex. October 9, 1996. - March 24, 1997.
Present: Wilkins, C.J., Abrams, Lynch, O'Connor, Greaney, Fried, &
Marshall, JJ.
Constitutional Law, Confrontation of witnesses, Waiver of
constitutional rights. Witness, Child. Evidence, Hearsay, Videotape.
Practice, Criminal, New trial, Retroactivity of judicial holding.
Waiver.
Indictments found and returned in the Superior Court Department on
January 21, 1985, and September 19, 1985.
A motion for a new trial, filed on March 30, 1995, was heard by
Elizabeth J. Dolan, J.
Indictments found and returned in the Superior Court Department, six
on January 21, 1985, and six on September 19, 1985.
A motion for a new trial, filed on April 11, 1995, was heard by Robert
A. Barton, J.
The Supreme Judicial Court granted an application for direct appellate
review.
Martin F. Murphy, Assistant District Attorney (Catherine E. Sullivan,
Assistant District Attorney, with him) for the Commonwealth.
Daniel R. Williams, of New York (Daniel V. Finneran, of New York, &
James L. Sultan, with him) for the defendants.
Scott L. Harshbarger, Attorney General, & Elizabeth J. Medvedow,
Assistant Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
------------------------------
FRIED, J. In 1986, Gerald Amirault was found guilty on eight
indictments charging rape of a child and seven indictments charging
indecent assault and battery on a child. We affirmed the denial of his
request for a new trial in Commonwealth v. Amirault, 399 Mass. 617
(1987), and affirmed his convictions and the denial of his renewed
motion for a new trial, Commonwealth v. Amirault, 404 Mass. 221
(1989). In a separate trial arising from the same allegations of abuse
at the Fells Acres Day School, Violet Amirault[2] was found guilty on
two indictments charging rape of a child and three charging indecent
assault and battery on a child, and Cheryl Amirault LeFave was found
guilty on three indictments charging rape of a child and four charging
indecent assault and battery on a child. We affirmed these
convictions, Commonwealth v. LeFave, 407 Mass. 927 (1990), and vacated
on appeal a judge's order revising their sentences, Commonwealth v.
Amirault, 415 Mass. 112 (1993). Gerald filed a motion for a new trial
on March 30, 1995, and Violet and Cheryl filed their motion for a new
trial on April 11, 1995, alleging that the special seating
arrangements used for the child witnesses in their original trials
deprived them of their right "to meet witnesses against [them] face to
face" as guaranteed by art. 12 of the Massachusetts Declaration of
Rights and our recent decision in Commonwealth v. Johnson, 417 Mass.
498 (1994). Gerald Amirault's motion was denied by the judge who
presided over his trial. Violet Amirault and Cheryl Amirault LeFave's
motion was allowed by a motion judge who had had no connection with
their original trial. We granted the Commonwealth's application for
direct appellate review as to all three defendants.[3]
I
The defendant Violet Amirault directed the Fells Acres Day School
where her daughter, Cheryl, worked as a teacher and her son, Gerald
(generally referred to as "Tooky" in the children's testimony), worked
as a bus driver, cook, maintenance man, and general assistant. On
September 2, 1984, a mother of one of the students made allegations of
abuse against Gerald, which led to a large-scale investigation. Gerald
was arrested three days later, and the school was closed shortly
thereafter. Violet and Cheryl were implicated in the allegations of
abuse. After the school was closed, a parents' meeting was held at the
Malden police station where parents were instructed to question their
children about a secret or magic room and a clown, and were made aware
of symptoms which might evidence sexual abuse.
Initially, all three defendants were subject to the same prosecution,
and all three were represented by the same trial counsel. In the
course of pretrial motions, the Commonwealth requested severance and
the defense agreed. [4]
A
Gerald Amirault was the first of the three defendants to be tried. The
Commonwealth's cases consisted primarily of the testimony of nine
children who related their accounts of abuse at Fells Acres. Eight of
the nine children testified in the court room, but using an altered
seating arrangement. The other child's testimony was recorded on
videotape and shown to the jury at a later date. We upheld that mode
of testimony in Gerald's direct appeal, Commonwealth v. Amirault, 404
Mass. 221, 240-243 (1989), and summarized the evidence presented
against him in great detail. Id. at 224-227. An identical seating
arrangement was used in both trials for those child witnesses who
testified in the court room. This was the seating arrangement for the
child witnesses which is the subject of these petitions:
Each child witness testified at a small, child-sized table which was
placed directly in front of the jury box. A microphone was placed in
the center of the table into which the child was directed to answer.
The defendants remained at the defense table which was positioned
behind and to the side of the child witness. The Commonwealth and the
defendants quibble over the specific parts of the child witness's face
the defendants could view and the exact degree of the sight angles
available from the defense table. There is sufficient agreement as to
the basic features of the arrangement, and our decision does not turn
on the features about which there is disagreement. The defense table
was not directly behind the child witness, so some profile view was
observable. The parties agree that the approximate sight angle from
the nearest seat at the defense table to the child witness was
approximately 112 degrees. The maximum angle from the other seats at
the defense table is in dispute, but is somewhere between 128 and 145
degrees. The child witnesses were seated approximately eight to nine
feet from the defendants. The motion judge who heard Violet and
Cheryl's motion, declared that "[a]t best, the defendants could only
see the right ear and a part of the right cheek of the testifying
witness." The Commonwealth contends that the defendants could see
almost a full profile view including the child's lips and that the
child witness could make eye contact by turning toward the defendants.
During the child witness testimony, counsel sat at either side of the
small table. The lawyer examining the child sat in the seat furthest
from the defense table. If the child looked at the lawyer examining
the child, he or she would have to turn his or her face away from the
defendants. The judge sat next to the questioning attorney and a
parent was permitted to sit approximately six feet behind the child.
Thus, it is likely that the child's attention was focused away from
the defense table during most of the testimony. No defendant made any
effort to move to the open seat at the defense table which offered the
best view of the child witnesses.
Gerald was present when each child walked into the court room. The
children were aware of his presence, and the jury would have been able
to see any interaction, such as eye contact or avoidance of it,
between the defendant and the witnesses at that time. In addition, the
judge who denied Gerald's motion for a new trial found that "[d]uring
[breaks], some [children] . . . looked directly at the defendant, some
expressing fear that the defendant would leave his seat and come after
them." Five of the eight children testifying in the altered court room
were asked to identify the defendant. Four of the children positively
identified the defendant by pointing toward him, some being asked to
point several times to ensure that they were, in fact, pointing to the
defendant. The remaining child pointed in the direction of the
defendant but refused to look at him.
Before the trials and before severance, the judge heard testimony from
Dr. Eli Newberger, a pediatrician specializing in child abuse,
regarding the appropriate manner by which the children should be asked
to testify. In their examination of Dr. Newberger, defense counsel
conceded that an altered court room arrangement would be preferable,
stating, "I think we've all accepted the fact that the small, more
intimate setting is the preferred setting as it potentially will be
less traumatic, notwithstanding what the child is being asked to
address himself to." The defense also declined on two separate
opportunities presented by the judge to object to the seating on
confrontation grounds. In the first instance, the judge explicitly
asked defense counsel whether he was raising the confrontation issue:
The judge: "I think [defense counsel], if you try and get at the
situation of would a face-to-face confrontation with the defendant be
more likely to produce the truth -- is that your thrust?"
Defense counsel: "No, your Honor."
In the second instance, defense counsel not only rejected the judge's
characterization of their argument, but also ignored the judge's
suggestion that confrontation was an open issue, worthy of
examination:
The judge: "What you're saying is, fine, Judge, look at the trauma,
look at the right of confrontation under the Sixth Amendment or
[art.12], which I really think is basically here -- "
Defense counsel: "Not quite, Judge."
The judge: " -- to be determined."
Defense counsel: "It's not a right of confrontation issue."
The discussion that actually determined how seating would be arranged
for the child witnesses was made off the record because defense
counsel did not object to those arrangements.
While the defense did not question the in-court seating arrangement on
confrontation grounds, it vigorously contested the use of videotaped
testimony on this basis. The defendant's motion in opposition to the
use of videotape stated that art. 12 "has long been recognized as
affording defendants greater protections than those provided for in
the Sixth Amendment" to the United States Constitution. Arguing this
point prior to trial, defense counsel noted that "[t]he Massachusetts
Constitution, by its very words, guarantees a defendant a face-to-face
confrontation." The defendant's motion cited liberally to United
States v. Benfield, 593 F.2d 815 (8th Cir. 1979), a case favoring
confrontation rights under Federal constitutional law, and noted a
Kentucky case, Commonwealth vs. Willis, No. 84-CR-346 (Fayette Cir.
Ct. 1985), and a California case, Hochheiser v. Superior Court, 161
Cal. App. 3d 777 (1984), both of which rejected testimonial
alternatives which would jeopardize a defendant's confrontation
rights. As noted above, we upheld the use of videotape for one child
witness in Gerald's earlier appeal, relying on the fact that the
defendant was present when the testimony was recorded.[5] Amirault,
supra at 240-243.
All nine children testified in a broadly consistent way.[6] The
children testified to numerous instances of sexual abuse. Some of the
children testified that they were photographed during this abuse,
describing a big camera with wires, a red button, and pictures which
came out of the camera. The children testified that the defendant
threatened them and told them that their families would be harmed if
they told anyone about the abuse.
Parents and relatives of the children testified and related the
circumstances in which the children's disclosures of abuse took place.
These parents also testified to instances of extremely sexualized
behavior on the part of the children including masturbation,
sexualized play with dolls, boys sticking their tongues in the mouths
of their mothers, and the simulation of sexual acts. Many of the
children also developed generalized symptoms indicative of trauma such
as bedwetting, baby talk, pain in their genital areas, headaches and
stomach aches, and fearfulness. The Commonwealth presented a child
psychiatrist who testified as to three major points. First, she
testified that children who are abused often delay revealing the abuse
out of fear, guilt, or lack of trust. Second, she described the sorts
of sexualized behaviors abused children can show, acknowledging that
although these behaviors can be prompted by circumstances other than
abuse, they do occur most frequently in abused children. Third, she
related nonspecific symptoms of trauma such as bedwetting,
fearfulness, and babytalk which she claimed were common in abused
children.
The Commonwealth also presented a pediatric gynecologist and
pediatrician who examined five of the girls who testified against
Gerald. She made findings consistent with abuse in four of the girls.
Gerald testified on his own behalf and denied all the allegations
against him. Twenty-two teachers, teachers' aides, and other employees
of the school testified that they had free, unannounced access to all
parts of the school at all hours. None was aware of any signs of
abuse, had heard of a "magic room" where much of the abuse was alleged
to have occurred, or had ever seen Gerald dressed as a clown or a
clown costume anywhere at the school. They testified that Gerald was
well liked by the children before the allegations of abuse.
The defense also presented a psychiatrist who testified that the
sexualized behavior and the nonspecific symptoms of trauma could have
been the result of something the children saw or were exposed to or
could have been produced by other emotional trauma. He also explained
what he called the "positive reinforcement loop," a theory he used to
explain how improper interviewing techniques could lead to false
accusations of abuse. He suggested that parental fears, combined with
parental and interviewer cues and reactions during inquiry, could
encourage children to respond to repeated questioning by relating
accounts of abuse, fabrications, and exaggerations to obtain approval.
B
After Gerald was convicted, Violet Amirault and Cheryl Amirault LeFave
were tried together. In the Commonwealth's case four child witnesses
testified against the two defendants. Each was under the age of nine,
and all testified within the court room. No findings were made as to
the necessity of the seating arrangement. The trial judge apparently
relied on the conversations with counsel that had taken place before
the two cases were severed, and copied the special seating arrangement
used in the earlier trial of Gerald Amirault which was based on the
recommendations in Dr. Newberger's testimony.
As in Gerald's case, the defendants did not object to the seating
arrangement on confrontation clause grounds.[7] They did object to the
seating arrangement on the ground that it was "done without any
evidence on the record that it [was] necessary, as opposed to, for
example, convenience," and that it "disfavor[ed] and prejudice[d] the
defendant to a point that even instructions from the Court cannot cure
that visual prejudice" which might result if this arrangement itself
created the suggestion that the defendants were guilty. The judge
determined that the arrangement would "facilitate the testimony" by
making it easier for the jury to see and hear the witnesses, and the
judge carefully instructed the jury that the arrangement's primary
purpose was to ensure that the jury could hear the testimony and that
no prejudicial inference should be drawn from the seating arrangement.
During the course of the testimony, the children were occasionally
required to look at the defendants. One eight year old girl identified
the defendants and was asked whether the distance between herself and
the defendants in the court room was approximately the same as the
distance between herself and the defendants during one of the
instances of abuse she recounted. She responded in the affirmative. A
nine year old boy was asked if the defendants were in the court room,
to which he answered, "Yes. Right there." A six year old girl stated
that she recognized the defendants and pointed to them in court. The
transcripts reveal no other instances which required the witnesses and
defendants to look at one another, although it is likely that the
children saw the defendants when they entered and left the court room.
We have already summarized at length the evidence presented at the
trial of Violet Amirault and Cheryl Amirault LeFave in an opinion
rejecting their earlier appeals. Commonwealth v. LeFave, 407 Mass.
927, 928-931 (1990). The prosecution's case consisted of testimony by
the four child witnesses who all testified to similar stories of
threats and sexual abuse at the hands of the defendants. All three
girls testified that abuse took place in a "magic room," described as
a bathroom on the school's second floor which had a small, child-sized
door. All four witnesses testified that they were photographed during
the abuse, two describing a black camera on a tripod and the others
describing a black camera with pictures that came out of its front.
The parents of several children testified that their children
developed pronounced sexual behavior and regressed to infantile
behaviors such as bedwetting and baby talk. The same child
psychiatrist who appeared at Gerald's trial testified that these
behaviors were commonly indicative of sexual abuse. The Commonwealth
also presented the same pediatric gynecologist used earlier who
related her findings that all three young girls exhibited physical
signs consistent with sexual abuse. The doctor acknowledged that these
findings were not conclusive of abuse, but testified the symptoms were
more common to abused children, and it would be unusual to find three
children under six years old at the same school with such symptoms.
The Commonwealth also presented a United States postal inspector who
specialized in the investigation of child pornography, describing
common means of depicting children in such pornographic materials and
the underground market for these goods. This testimony was offered to
establish a motive for the abuse. See Commonwealth v. LeFave, supra at
931-938 (holding that this testimony was properly presented to the
jury and relevant to the issue of motive).
The defense countered with testimony from twelve teachers or aides
from Fells Acres who all testified that they had never heard of the
places or witnessed the activities about which the children testified.
They stated that they had seen nothing at Fells Acres which would
corroborate these accounts, pointing out that they had free use and
access to all parts of the school at all times and had never perceived
any indications of abuse. The defense also produced a psychiatrist who
testified that it was equally probable that the sexual behavior
exhibited by the children stemmed from a source other than sexual
abuse. The psychiatrist and another psychologist opined that the
process used to interview the children was fatally flawed, one noting
that the interviewer seemed to make no attempt to distinguish fact
from fantasy, and the other testifying as to faults she had documented
in one of the recorded interviews. The defense also produced one of
the female witness's personal pediatrician who testified that the
child showed no signs of vulvitis when she was examined shortly after
the closing of Fells Acres.
In 1993, we vacated the trial judge's allowance of a motion by the
defendants to revise or revoke their sentences. Commonwealth v.
Amirault, 415 Mass. 112 (1993). The defendants did not raise either
the State or Federal confrontation clause issue, as it pertained to
the seating arrangement, in any of their earlier appearances before
this court.
II
A
Article 12 commands that "every subject shall have a right . . . to
meet the witnesses against him face to face." In Commonwealth v.
Bergstrom, 402 Mass. 534 (1988), we stated, in response to an argument
by the Commonwealth that "these words have 'no essential meaning,'"
id. at 541, that "[c]onstitutional language more definitively
guaranteeing the right to a direct confrontation between witness and
accused is difficult to imagine." Id. at 541-542. Nor did we think
that we were saying anything new, for we quoted our decision in
Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), that the "'purpose
[of art. 12] was to put beyond the possibility of alteration except by
the people themselves the principle already established as a part of
the common law that the witness should confront the accused face to
face'" (emphasis supplied in Bergstrom). Bergstrom, supra at 544. We
also noted that:
"The Constitutions of Virginia, Pennsylvania, Delaware, Maryland,
North Carolina, and Vermont contain 'to be confronted with' or 'to
confront' language. The Massachusetts Declaration of Rights, which was
adopted after these documents, was the first to use the language 'to
meet the witnesses against him face to face.' . . . Presumably, the
framers of our State Constitution were aware of the other States'
provisions and chose more explicit language to convey unequivocally
their meaning."
Id. at 541 n.9.
The Bergstrom case declared G. L. c. 278, 16D, unconstitutional. This
was a statute which, in certain circumstances, permitted a child
witness to have his testimony electronically recorded and presented to
the jury as the testimony of the child at the trial of a defendant
accused of crimes such as those in these cases, and it was found to be
unconstitutional insofar as it allowed this recording to occur at a
session where the accused was not present. For that reason, the
emphasis in that case was on the right of the accused to be present
when the witness against him gives his testimony. Bergstrom, supra at
540-541. In the cases before us, however, that issue is not presented
as the child witnesses and the accused were, with the exception of the
child who testified through videotape in Gerald's trial, present
together in the court room when the witness gave his testimony.
The situation in Coy v. Iowa, 487 U.S. 1012 (1988), came much closer
to the facts of the instant cases. In Coy, the defendant was accused
of sexually assaulting two thirteen year old girls. At his jury trial,
the judge granted the State's motion, pursuant to a statute intended
to protect child victims of sexual abuse, to place a screen between
the defendant and the girls during their testimony. This device
blocked the defendant from the witnesses' sight but allowed him to
hear his accusers and see them dimly. The Supreme Court considered
this procedure under the confrontation clause of the Sixth Amendment,
which gives the accused the right "to be confronted with the witnesses
against him." As we noted in Bergstrom, this language is more general
than that of art. 12 and thus might lend itself to a less demanding
interpretation. Despite its more general language, the Supreme Court
in Coy read the confrontation clause of the Sixth Amendment just as we
read art. 12 in Bergstrom. The Supreme Court in Coy went on to state
the reasons, indicated by us as well, see Bergstrom, supra at 542-543;
Commonwealth v. Johnson, 417 Mass. 498, 503 (1994), underlying the
right to confrontation, in a way that distinguishes and gives separate
emphasis to the several rights implicated in both art. 12 and the
Sixth Amendment: the right of the defendant to cross-examine
witnesses, the right to be present and observe the witness testify,
and the right to meet the accusing witness in such a way that the
witness must either look upon the accused's face as he testifies or
deliberately avert his eyes and look away from him.
"[A]s Justice Harlan put it, '[s]imply as a matter of English' it
confers at least 'a right to meet face to face all those who appear
and give evidence at trial.' California v. Green, [399 U.S. 149, 175
(1970)]. Simply as a matter of Latin as well, since the word
'confront' ultimately derives from the prefix 'con-' (from 'contra'
meaning 'against' or 'opposed') and the noun 'frons' (forehead).
Shakespeare was thus describing the root meaning of confrontation when
he had Richard the Second say: 'Then call them to our presence -- face
to face, and frowning brow to brow, ourselves will hear the accuser
and the accused freely speak . . . .' Richard II, Act 1, sc. 1. . . .
"The State can hardly gainsay the profound effect upon a witness of
standing in the presence of the person the witness accuses, since that
is the very phenomenon it relies upon to establish the potential
'trauma' that allegedly justified the extraordinary procedure in the
present case. That face-to-face presence may, unfortunately, upset the
truthful rape victim or abused child; but by the same token it may
confound and undo the false accuser, or reveal the child coached by a
malevolent adult. It is a truism that constitutional protections have
costs."
Coy v. Iowa, supra at 1016, 1020.
Just two years later, the reservations that the concurring and
dissenting Justices expressed in Coy became the opinion of the Court,
and the Sixth Amendment's confrontation right was deemed to be
satisfied by "[t]he combined effects of these elements of
confrontation -- physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact -- [which] serve[] the
purposes of the confrontation clause by ensuring that evidence
admitted against an accused is reliable and subject to the rigorous
adversarial testing that is the norm of Anglo-American criminal
proceedings." Maryland v. Craig, 497 U.S. 836, 846 (1990). Perhaps the
Court in Craig was justified in treating the Sixth Amendment as
stating a set of general desiderata that might be served in a variety
of ways and adjusted to the circumstances of the particular case --
particularly so where the rule would be imposed on the several States
with their various constitutional texts and traditions. But we are not
free to treat art. 12 in the same way. The Sixth Amendment's
confrontation clause is stated in brief and abstract terms. The Court
in Coy, supra at 1016, was, after all, forced to proceed by an
etymological analysis of the Latin roots of the English word
"confrontation," and so to arrive at the picture of a meeting face-to-
face, which then resonates with all the history it invoked. But art.
12 does not invite us to proceed by abstractions and by a weighing of
values to be served by alternative ways of proceeding. Article 12 uses
the very language which the Court in Coy was forced to infer. There
were few texts that those who wrote and those who adopted art. 12 knew
better than the Bible and Shakespeare. And so Festus's biblical
proclamation that, "'[i]t is not the manner of the Romans to deliver
any man up to die before the accused has met his accusers face to
face, and has been given a chance to defend himself against the
charges,' Acts 25:16," Coy, supra at 1015-1016, and the words of King
Richard must have been ringing in their ears when they invoked the
very words "meet the witnesses against him face to face."
When the Declaration of Rights speaks to us with such unmistakable
insistence, we are not free to ignore it nor to mitigate its rigors by
balancing countervailing considerations and approving alternatives
that may seem to serve the values behind those words well enough. This
is not to say that the mode of proceeding required by art. 12 is the
only fair and decent way of going about the trial of a criminal
accusation. So long as an amendment stays within the general bounds
drawn by the Supreme Court in Craig, the people of the Commonwealth --
as did the people in Pennsylvania and Illinois -- are free to amend
our Declaration of Rights to permit the accommodations urged by the
prosecution.[8]
We have no doubt that the seating arrangements in these cases violated
the confrontation rights of the accused under art. 12. All arguments
about whether the angles permitted a sufficient view of the testifying
child's eye and lips miss the point. The Commonwealth emphasizes these
arguments as if the only value at stake were the ability of the
accused to observe the testifying witness and the clues the accused
might gather from such observation to assist in his defense. But we
have made it clear that this is but one of the values served by art.
12. The witness must give his testimony to the accused's face, and
that did not happen here. Moreover, it is a nonsequitur to argue from
the proposition that, because the witness cannot be forced to look at
the accused during his face-to-face testimony, that therefore this
aspect of the art. 12 confrontation right is dispensable. The witness
who faces the accused and yet does not look him in the eye when he
accuses him may thereby cast doubt on the truth of the accusation. See
Coy v. Iowa, supra at 1019; Commonwealth v. Kater, 409 Mass. 433, 446
(1991). The child witnesses in these cases did not testify to the face
of the accused. Though they were aware of the presence of the accused,
the arrangement was such -- and deliberately so -- that they could
testify quite comfortably and naturally without ever having the
accused in their field of vision. And on this point, whether the
defendants took one seat or another of the seats open to them at the
defense table is quite irrelevant.[9]
B
In Bergstrom, supra at 545-546, we "recognized narrow circumstances in
which a defendant's Sixth Amendment or art. 12 rights must yield to
unique interests . . . the right to confront witnesses is not
absolute." Accord Commonwealth v. Johnson, supra at 503 ("the right to
confrontation . . . may yield in appropriate, although limited,
circumstances"). In Coy, supra at 1020, too, the Supreme Court
conceded that "[i]t is true that we have in the past indicated that
rights conferred by the Confrontation Clause are not absolute, and may
give way to other important interests." At stake is the validity of
the various rules allowing the introduction of hearsay evidence, as
well as of devices such as videotaped testimony taken in the presence
of the accused and offered to the jury at a later time. See
Commonwealth v. Dockham, 405 Mass. 618 (1989); Commonwealth v. Tufts,
405 Mass. 610 (1989). As to hearsay evidence, the court in Bergstrom,
supra at 545, quoting Ohio v. Roberts, 448 U.S. 56, 65 (1980), and
Commonwealth v. DiPietro, 373 Mass. 369, 377 (1977), was careful to
limit the range of exceptions: either the declarant must be
"unavailable to testify during the trial [and the statement must be]
imbued with such trustworthiness and indicia of reliability that
'there is no material departure from the reason of the general rule,'"
or the statement of an unavailable declarant must fall within "'an
acknowledged exception[ ] to the face to face rule of evidence' at the
time of the State Constitution's adoption, e.g., public records or
dying declarations."[10] Beyond that, the court prudently left open
the possibility of exceptions in "limited circumstances," id. at 546,
but emphasized the need for particularized findings of need on a case-
by-case basis and rejected the validity of "broad categorical
exemptions" based on classes of crimes such as sexual abuse or classes
of witnesses such as child witnesses.[11] Id. at 548. Coy makes a
similar point. Id. at 1021 (individualized findings necessary, though
not sufficient, condition for exceptions).
We agree with the defendants that no such particularized findings were
made in these cases. The testimony of Dr. Newberger was far too
general to satisfy this demanding constitutional standard. Dr.
Newberger did not interview the child witnesses but instead limited
himself to generalities concerning children's testimony in sexual
abuse cases. Neither the vulnerabilities of the particular witnesses
nor the need of the accused for protection from invented, suggested,
or coached testimony were considered.
There is, of course, no reason why special arrangements encompassing
more intimate, less intimidating settings for the child's testimony
may not be devised: the number of persons present may be limited, the
judge may sit at the same level as the other participants and not wear
robes, special furniture may be used such as child-size chairs and
tables, the child's parent or a favorite toy may be placed near the
witness. See Commonwealth v. Bergstrom, supra at 553 ("a judge may
require that the environment in which a witness is to give testimony
be made less formal and intimidating"). In all such arrangements the
accused may still meet the child witness face to face, and the jury
may gauge the effect of such an encounter.
Of greater concern are those arrangements where the child's testimony
is recorded on videotape and then presented to the jury. We have
already noted that, where the witness is not subject to cross-
examination or the testimony is given out of the presence of the
accused the violation of art. 12's mandate is palpable, unless the
witness is unavailable or excused by some recognized exception such as
the dying declaration. See infra at . But even where the witness's
testimony is given in a manner which conforms in every respect to what
ideally should happen in a proper confrontation within the court room
when it is recorded, there is still the difficulty that, although the
confrontation between accused and accuser takes place at the time of
the accusation, the jury may not witness that confrontation, but only
its effect, if any, on the accusing witness. See Commonwealth v.
Tufts, supra at 617 (videotape did not show the defendants, leading us
to remark that "[i]t would have been better if jurors could have
observed the reactions of the defendants to the child witness's
testimony during the videotaping"). See also Commonwealth v. Amirault,
404 Mass. 221, 242 (1989) ("Ideally, all persons present in the room
during the taping would be visible in the videotape"). Perhaps
techniques are available to make up even for this defect although it
is doubtful that any two-dimensional representation could ever convey
all the activity available to the live observer.
Yet we have recognized and do recognize that videotaped testimony may
on occasion be appropriate. In Commonwealth v. Tufts, supra, for
instance, the witness, a child of four years, simply could not be made
to testify in the court room but would talk outside the court room.
Even if such need exists, and there must be a particularized finding
to that effect, see G. L. c. 278, 16D (b) (1), and the judge must
assure that the setting of the videotaping approximates as closely as
possible the conditions that would obtain in a traditional court room
confrontation. Moreover, the jury should be made aware of the setting
at the videotaping, perhaps by a presentation, repeated from time to
time, in which the whole setting and the positions of the participants
are shown on the screen. See Commonwealth v. Amirault, supra at 242,
quoting Commonwealth v. Bergstrom, supra at 549 n.16 ("in
constitutional terms, a videotape should be required to convey to the
jury . . . the totality of the circumstances involved in the giving of
testimony"). But we need not go into greater detail on this score,
because insofar as the present appeals may encompass the one witness
in Gerald's trial who did testify on videotape, we reaffirm our
decision in Commonwealth v. Amirault, 404 Mass. 221, 241-243 (1989),
that the videotaping procedure used comported with our constitutional
requirements.
III
A
The condemnation and punishments of the criminal justice system are
awesome and devastating. That is why their imposition is hedged about
with presumptions and procedural safeguards that heavily weight the
risk of error in favor of the accused and are designed to assure both
the appearance and the reality that the accused had every fair
opportunity of defense. But once the process has run its course --
through pretrial motions, trial, posttrial motions and one or two
levels of appeal -- the community's interest in finality comes to the
fore. The regular course of justice may be long, but it must not be
endless. See Commonwealth v. Deeran, 397 Mass. 136, 142 (1986). When a
serious crime has been committed, the victims and survivors,
witnesses, and the public have an interest that the guilty not only be
punished but that the community express its condemnation with firmness
and confidence. Moreover, a decision to reopen a matter long since
adjudicated will often in effect resolve the dispute in favor of the
accused because witnesses will have died, disappeared, their memories
faded, or they may simply be unwilling once again to undergo the
ordeal of testimony. Commonwealth v. Curtis, 417 Mass. 619, 623
(1994). On the other hand, we cannot rid ourselves by process alone of
the possibility of error and of grave and lingering injustice. In our
system the motion for a new trial, which can be made at any time even
decades after the initial adjudication, responds to this need. See
Mass R. Crim. P. 30, 378 Mass. 900 (1979). But in accommodating these
two conflicting thrusts, once the regular procedures have run their
course the presumption tilts heavily toward finality. See Commonwealth
v. Tucceri, 412 Mass. 401, 406 (1992) ("[n]ew trials should not be
granted except for substantial reasons"). The mere fact that, if the
process were redone, there might be a different outcome, or that some
lingering doubt about the first outcome may remain, cannot be a
sufficient reason to reopen what society has a right to consider
closed.
Two sets of rules, relevant to the cases before us, address those
circumstances where a new trial will be granted and express the
balance we have struck between the needs of finality and the claims of
substantial justice. One set of rules concerns those instances in
which a newly enunciated doctrine will be applied retroactively so as
to reopen adjudications that may have been entirely regular at the
time they were made. The other set concerns those instances in which a
defendant is foreclosed from raising an objection because, while he
might have raised it earlier and thus had it resolved during the
normal course of adjudication, he does not raise it until after the
regular process has already run its course. This is the doctrine of
waiver. Both sets of rules invoke a similar notion: How new and
surprising is the doctrine whose benefit the defendant now seeks when
he asks for a new trial?
In deciding whether a new doctrine shall be applied retroactively,
once the regular course of adjudication has been completed, the
novelty of the doctrine ordinarily cuts against its retroactive
application: we simply ask whether the process was correct and regular
according to the rules in force at that time, see Commonwealth v.
Bray, 407 Mass. 296, 300 (1990) (new rules should not apply
retroactively "unless they fall within either of two very limited
exceptions"), citing Teague v. Lane, 489 U.S. 288, 311 (1989), lest
every development in the law entail a wave of new trials of matters
long since closed, see Teague v. Lane, supra at 310, and therefore
inhibit progress in the law and the clarification of existing
principles.[12] Accordingly, a new rule is only applied "if it places
'certain kinds of primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe'" or addresses a
procedure of "fundamental fairness" which is "implicit in the concept
of ordered liberty" and "without which the likelihood of an accurate
conviction is seriously diminished." Commonwealth v. Bray, supra at
300, quoting Teague v. Lane, supra at 311, 312-313. Because the
exceptions to this preclusive general principle of nonretroactivity
are defined very tightly, the definition of a new rule is broadly
inclusive. A rule counts as new for this purpose even if it is the
logical extrapolation of a principle already stated in prior
decisions. See Commonwealth v. Bray, supra at 302-303 (a rule is new
if not "dictated" by existing precedent); Teague v. Lane, supra at
301.[13]
The concept of novelty is stringently defined in just the other way
when it comes to deciding whether a defendant should have anticipated
some evolving doctrine and utilized the opportunities within the
regular course of his proceedings to raise that claim. For the
doctrine of waiver, novelty is defined narrowly. Commonwealth v.
Bowler, 407 Mass. 304, 308 (1990) (defendant "fairly on notice" of
issue in spite of the fact that later case deciding that issue "is
considered 'new' for the purpose of retroactivity analysis"). Here the
concern for finality demands that a defendant present every claim and
argument he might fairly have had available to him the first time
around, and not after the proceeding has run its course -- perhaps, as
here, many years after it has run its course.
Whether our emphatic embrace of the literal meaning of art. 12 in
Commonwealth v. Bergsdrom, supra, or the Supreme Court's
interpretation of confrontation under the Sixth Amendment in Coy v.
Iowa, 487 U.S. 1012 (1988), represented a "new" rule for the purpose
of the Bray-Teague retroactivity analysis is a question we nlve,
because as both Commonwealth v. Bray, supra, and Teague v. Lane,
supra, make clear, a doctrine, novel or not, which goes to the
fundamental fairness of the prior proceedings must be given
retroactive effect. We need not pause long to demonstrate that art. 12
addresses a fundamental right of the accused. Our reaffirmation of
that right here and our review in Bergstrom are forceful enough to
make that point.
B
However fundamental the right, absent extraordinary circumstances
where there has been ineffective assistance of counsel or where
allowing the conviction to stand "will result in 'manifest
injustice,'" Commonwealth v. Watson, 409 Mass. 110, 114 (1991),
quoting Fogarty v. Commonwealth, 406 Mass. 103, 110 (1989), the
defendant who had a fair opportunity to raise it may not belatedly
invoke that right to reopen a proceeding that has already run its
course. Commonwealth v. Bowler, supra at 307. If he had an opportunity
to invoke the right and failed to avail himself of it, the claim is
waived and may not be raised for the first time on collateral review.
The test for waiver is whether "the theory on which his argument is
premised has been sufficiently developed to put him on notice that the
issue is a live issue. Counsel need not be 'clairvoyant.'" Id., and
cases cited. DeJoinville v. Commonwealth, 381 Mass. 246, 251 (1980)
(cases decided prior to appeal did not "provide[] sufficient guidance
so that the petitioner can be said to have had a genuine opportunity
to raise his claim at that time").
Before proceeding to consider whether the defendants have waived their
confrontation clause claim, we must put to rest a possible confusion
that may exist where, as occurred in both of the cases before us, a
motion judge chooses to consider an issue on its merits in a motion
for a new trial, even though that issue could have been and should
have been raised at the trial or on direct appeal.[14] The statement
has been made that such a consideration -- favorable or unfavorable --
resurrects the otherwise defunct grounds for complaint so that it is
"preserved for appellate review as if brought on direct appeal."
Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 18 (1986), quoting
Commonwealth v. Buckley, 17 Mass. App. Ct. 373, 374 (1984). See
Commonwealth v. Curtis, 417 Mass. 619, 624-625 (1994).
When a new trial motion judge chooses to consider an issue on its
merits, we have determined that an appellate court shall review it
under the same standard motion judges are instructed to use: the
"power to give relief from . . . waiver . . . should be exercised only
in those extraordinary cases where, upon sober reflection, it appears
that a miscarriage of justice might otherwise result." Id. at 626,
quoting Commonwealth v. Harrington, 379 Mass. 446, 449 (1980).
Commonwealth v. Martinez, 420 Mass. 622, 624 (1995). The doctrine of
waiver is a doctrine devised by this court for reasons which, as we
have explained, go to the balance between the full realization of a
defendant's rights and the community's interest in the finality of
criminal judgments. The purpose of this doctrine would be greatly
undermined if a motion judge could render it a nullity by choosing to
brush past it in his move to the merits -- whether, as these cases
illustrate, to reject or to affirm the claim. Recently we have made it
quite clear that, at least as to nonconstitutionally based issues, no
such unreviewable and unilateral power of resurrection exists.
Commonwealth v. Curtis, supra at 623-626.
There remains the question whether our decision in Curtis can
logically be confined to nonconstitutional issues. Such a position, we
think, would rest on confusion between constitutionally based
objections and objections that lead to a "manifest injustice." Not all
grounds for objection that in a particular case might lead to a
fundamental miscarriage of justice are of constitutional dimensions,
and, as we show below in Part IV, not all constitutionally based
grounds for objection, if forfeited because they have been waived,
necessarily lead to such a miscarriage of justice. To be sure such a
miscarriage is more likely in the latter than the former, which may
explain why there may be a tendency to conflate the two. But they are
distinct nonetheless and a separate exception for constitutional
matters "would be likely to swallow the rule, because many, if not a
majority, of the errors alleged to have occurred at trial currently
are argued on appeal as deprivations of constitutional right."
Commonwealth v. Miranda, supra at 18-19.[15] It is clear that the
doctrine of waiver "applies equally to constitutional claims which
could have been raised, but were not raised on direct appeal or in a
prior motion for a new trial." K.B. Smith, Criminal Practice and
Procedure 2070, 2084 (Supp. 1996). See also Commonwealth v. Deeran,
397 Mass. 136, 142 (1986). Of course, there is ample reason to allow a
motion judge to consider the essentially case-specific issue of
whether there has been a miscarriage of justice on a highly
discretionary standard, particularly if it is the same judge who
conducted the original trial. Commonwealth v. Tucceri, 412 Mass. 401,
409 (1992). But the doctrine of waiver is a doctrine of law and can
only be dispensed within in a lawful manner, appropriately subject to
appellate review.
In these motions the defendants complain that the special seating
arrangements did not give them the kind of face-to-face confrontation
art. 12 requires, and we agree. But neither at their trials, nor on a
motion for a new trial by Gerald, nor on their later direct appeals
did the defendants raise this art. 12 complaint brought now, over six
years after the decisions rendered in the direct appeals.[16] Both at
trial and on appeal, the defendants had ample opportunities to raise
confrontation issues regarding the special seating arrangement,
without needing clairvoyant foresight. See Commonwealth v. Bowler, 407
Mass. 304, 307 (1990). They not only participated in altering the
court room seating arrangements, but also ignored several
opportunities to raise objections based on confrontation grounds.[17]
The record makes it clear that the defendants were aware of the debate
surrounding confrontation issues and child witnesses. This knowledge
is evidenced by the objections defense counsel raised to the use of
videotaped testimony prior to both trials, in which they declared:
"The Massachusetts Constitution, Article 12 of the Declaration of
Rights, has long been recognized as affording a defendant, with regard
to the issue of confrontation, greater protection than does the
Federal Constitution. The Massachusetts Constitution, by its very
words, guarantees a defendant a face-to-face confrontation."
These motions opposing the use of videotape also raised concerns
surrounding credibility and the jury's opportunity to observe
interaction between the witness and the defendant which are identical
to the types of concerns raised in this appeal, demonstrating that
there was an awareness at trial that the right of confrontation
encompassed more than a defendant's privilege to be present during
testimony. Moreover, in the preliminary hearing which addressed
children's testimony and took place prior to severance, defense
counsel raised concerns that seemed to address the defendants'
confrontation rights. In two instances, the judge asked defense
counsel directly whether they were raising confrontation rights under
the Sixth Amendment or art. 12, opining that these rights might still
be open to determination. Both times, defense counsel rejected this
characterization of their concerns. See supra at . Additionally, on
Gerald's appeal, defense counsel alleged that the seating arrangement
was prejudicial to the defendant and that it interfered with his right
to counsel. In response, the Commonwealth's brief noted that the
defendant was not arguing that the seating "violated his confrontation
rights under the Massachusetts Declaration of Rights or the United
States Constitution," and that any future argument on this point must
therefore be deemed waived. Although it is difficult to imagine
clearer language that would put the defendant on notice of the issue
at hand, Gerald's defense counsel, in his reply brief, chose not to
respond to this statement in the Commonwealth's brief.
Apart from the specific actions taken, or not taken, by defense
counsel, we conclude that the cases decided prior to the defendants'
appeals provided sufficient guidance and, in light of those cases, it
would not have required clairvoyance to raise this claim, particularly
at the time of the defendants' appeals. The Bergstrom case was decided
on June 13, 1988, and the Coy case was decided two weeks later, on
June 29, 1988. Gerald Amirault's appeal was argued on December 6,
1988, and Cheryl LeFave's and Violet Amirault's appeals were argued on
March 8, 1990. Craig v. Maryland, 497 U.S. 836 (1990), which severely
qualifies Coy, was not decided until June 27, 1990. Thus Coy's Sixth
Amendment face-to-face confrontation requirement was the law of the
land at the time of both appeals.
Commonwealth v. Bergstrom, supra, supplied the defendants with the
substance of the confrontation argument they now make, although it is
not on all fours with these cases. As we have explained, Bergstrom
concerned videotaped testimony which was taken outside the presence of
the defendant and later offered to the jury pursuant to an earlier
version of G. L. c. 278, 16D. The particular defect in Bergstrom was
the defendant's physical absence during the witness's live testimony.
In that sense any statements extending to the procedures employed here
are, strictly speaking, dicta. But we have never held that only a
holding on an issue squarely on point will suffice to invoke the
doctrine of waiver. If anything so precise and rigorous were intended
we would not have chosen phrases like "fairly on notice," "genuine
opportunity," "sufficient guidance," and "clairvoyan[ce]." See
Commonwealth v. Bowler, supra at 307, 308; DeJoinville v.
Commonwealth, 381 Mass. 246, 251 (1980); Commonwealth v. Rembiszewski,
391 Mass. 123, 126 (1984). Bergstrom stated that "[a]bsent compelling
circumstances, a jury ought to be able to view the interaction between
a witness and others who are present. The subtle nuances of eye
contact, expressions, and gestures between a witness and others in the
room are for the jury to evaluate." Id. at 550. Although this was said
in the context of videotaped testimony, it hardly required
clairvoyance to apply this statement to a seating arrangement where no
such "interaction" or "eye contact" could take place with the
defendant unless the witness turned around to face him.