The Wall Street Journal
August 24, 1999
Commentary
Judgment in Massachusetts
By Dorothy Rabinowitz
a member of the Journal's editorial board.
The justices of the Supreme Judicial Court of Massachusetts
have delivered an opinion reinstating the convictions won
by the prosecutors in the Fells Acres Day School case--a
decision that ensures Cheryl Amirault will be going back to
prison, probably within a month, and undermines all hope
for a successful state court appeal for her brother, Gerald,
behind bars since 1986.
The opinion is a telling document, as much for what the
judges left out as for what they put in. Indeed, a reader who
came to it knowing nothing about this prosecution would
have been hard put to find in this decision any of the reasons
this case had won such notoriety; nothing of the frenzied
interrogations, the mad pleadings of interviewers exhorting
children to tell, of the process by which small children were
schooled in details of torments and sexual assaults
supposedly inflicted on them in secret rooms--matters, the
record of these interviews reveals, that the children clearly
knew nothing about.
The justices, in short, decided to confine their attention to
matters that were in their view more significant than all that
is now known about this prosecution, its foundation, the
origins of the testimony that had led inexorably to the
Amiraults' jury convictions. The unanimous opinion, written
by Chief Justice Herbert P. Wilkins and signed by Justices
John M. Greaney, Margaret H. Marshall, Ruth I. Abrams,
Neil L. Lynch and Roderick L. Ireland--confines itself
largely to the arguments that the issue of tainted children's
evidence was not new, that it had been presented at the
original trials, and that the jury had, after all, believed the
children anyway. The principle of "finality" would be
compromised, the justices held, if they sustained the motion
for a new trial in this case merely because more was now
known about investigative tactics that could "cause a child
witness to state false facts."
One can doubt whether the justices will
achieve their cherished finality. The issue
is headed either to federal courts or to the
desk of Gov. Paul Cellucci, who could
use the pardon power to reverse a clear
miscarriage of justice. While Mr. Cellucci
has maintained a careful silence about the
Amirault case, last fall he narrowly
defeated Scott Harshbarger, then state
attorney general and now head of Common
Cause, who has consistently defended the
victory he won as the original Amirault prosecutor.
That the Amiraults' trials were held amid a wave of
child-abuse prosecutions--a time when it would have taken
a rare juror to resist the reigning imperative to "believe the
children," the children who had so bravely stepped up to the
witness stand, and "children don't lie"--evidently did not
enter into the justices' concerns. Neither, apparently, did all
the available evidence that the investigative tactics
employed in the Amiraults' prosecution drove the children to
extremes of fantasy, charges of marauding robots, murdered
squirrels, attack by butcher knife--none of which seem to
have raised any questions about the credibility of the child
witnesses. For it was understood, thanks to the strange new
legal standards in evidence in American courtrooms during
the great mass-abuse trials pitting toddlers against the
accused--most of them nursery school teachers--that the jury
should feel free to disregard any parts of the witnesses'
testimony that were clearly incredible, the witnesses being
children.
In such a time and atmosphere, in courtrooms where such
standards for witness credibility prevailed and jurors were
repeatedly reminded by the prosecutors of how much
courage it had taken for these children to come forward,
jurors voted to believe the children. In such ways did the
false facts delivered by child witnesses result in convictions
of the innocent, a matter with which the justices--engaged
with their higher duty to the doctrine of finality--were not
disposed to concern themselves.
Across the nation courts have taken account of these matters.
Kelly Michaels was freed from prison in New Jersey after
serving five years, her conviction reversed. A federal courts
freed Grant Snowden, the target of State Attorney Janet
Reno prosecutions, after he served 11 years. And in
Massachusetts, lower courts freed Cheryl Amirault and her
mother, Violet (who died after release). But last week's
Supreme Judicial Court opinion could have come as no
shock to anyone acquainted with the record of these justices
in this case--not least the justly famed 1997 decision
reinstating the convictions of Cheryl and Violet in the
interest of "finality." The Supreme Judicial Court had also
denied the Amiraults' first appeal, in 1990.
Then, in 1993, came its decision blocking an order that
would have revised the women's sentences and freed them.
Violet and Cheryl Amirault had by this time been
imprisoned nearly seven years and been denied parole on
the grounds that they refused to admit their guilt--or, as the
current psycho-speak has it--refused to "take responsibility"
for their actions. Even back when they were convicted in
1986 this refusal had become an issue--something of a crime
in itself, if one were to believe the trial prosecutor
Lawrence Hardoon, who more than once held forth on the
new torments the Amiraults were inflicting on their many
victims by their failure to admit guilt.
Still, in 1993, when the women's former trial judge, John
Paul Sullivan, saw that the Amiraults would never agree to
any confession, even if it meant being denied parole--and
that Violet and Cheryl could consequently end up serving a
full 20-year sentence--he issued a "revise and revoke" order
cutting their sentence to time served. The prosecutors, much
invested in this case, which had brought them plaudits,
publicity and career advancement--ex-prosecutor Lawrence
Hardoon now was well ensconced in a new career as a
lawyer specializing in child sex-abuse cases--quickly filed
a brief opposing the women's release. The justices of the
Supreme Judicial Court responded with a decision
overturning Judge Sullivan's order. No one could remember
any case of a trial judge's revise-and-revoke order being
vacated by this state's highest court.
Now comes the latest opinion, in keeping with all the rest.
Given this record, it was unreasonable to suppose that the
members of this court could now bring themselves to issue a
decision that cast doubt on the wisdom of all their previous
rulings in this case.
In the pages of their opinion we find evidence that the
justices also adopted the wisdom and the language of the
state prosecutors and their experts-in-abuse. In their rebuke
to Superior Court Judge Isaac Borenstein, who delivered a
scathing report on the fabrications on which the prosecutors
had built this case--the justices held that he had failed to
take into account the child witnesses' symptoms "that were
consistent with abuse." Here was the concept crucial to
every prosecutor of these cases--the idea, namely, that
certain forms of behavior exhibited by children could stand
as evidence of abuse--a strategy of no small importance,
given that prosecutors who built their cases on fabricated
child testimony could offer nothing by way of actual
evidence.
The symptoms cited in these cases as being consistent with
abuse, and reported by the parents of the supposed victims,
included fighting, sleeplessness, separation anxiety,
aversion to certain foods, bad temper and bedwetting. The
possibilities were endless. That such behavior is
commonplace in childhood did not of course figure in the
proposition put to the juries in these cases--that they were
symptoms of abuse. Nor, apparently, did this fact enter the
considerations of the justices sitting on the Supreme Judicial
Court.
None of the children's symptoms attracted more attention or
was cited more often than signs of "hypersexual
behavior"--signs offered as proof that the children had
suffered abuse. The same children in whom these signs were
observed invariably exhibited them after the abuse
investigators had arrived--after, that is, their parents and the
investigators had subjected them to days of talk about bad
touching, and genitals and pee-pees and clowns pulling their
pants down. It should not have been surprising that children
immersed in this process should show signs of increased
sexual awareness.
During the oral argument before the Supreme Judicial Court
in May, one of the justices remained silent throughout (as
did most of the others), but for one question, which he asked
repeatedly. Namely, wasn't it true that the children had
shown some sort of signs of sexual activity?
The justices have spoken, and rendered the future
undeniably bleaker for the Amiraults. Joyful over this result,
one true believer who had filed a brief on behalf of the
prosecution proclaimed: "Stick a fork in them. They're
done."
An unlikely assumption. The case will not be going away.
Too much is known now, too much revealed. The Amiraults'
lawyers are considering their next steps, which could
include appeal to the federal courts and an application for
pardon to Gov. Cellucci. And over the weekend Judge
Borenstein--the second judge to reverse the Amirault
women's convictions--ordered state prosecutors, the
Amiraults and their lawyers to appear before him in open
court Aug. 30. What the judge intends to say no one knows,
though it is a certainty that none of it will bear any
resemblance to the view of justice propounded by the
members of the Supreme Judicial Court.
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Copyright ? 1999 Dow Jones & Company, Inc. All Rights Reserved.
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