Massachusetts Parole Board
Majority Opinion on Amirault Case

Friday, July 6, 2001


The Governor's Guidelines for Commutation last issued in September 1991 establish the grounds upon which Commutation may be granted.

The guidelines state, in relevant part, that Commutation is warranted where it is demonstrated by clear and convincing evidence that "Petitioners further incarceration would constitute gross unfairness because of the basic equities involved including (i) the severity of the sentence received in relation to sentences received by co-defendants." (Governors Guidelines par. 1 sec. C subsection (1).

It is the opinion of the majority of the Advisory Board that clear and convincing evidence demonstrates that the severity of the sentence received by petitioner Gerald Amirault, in relation to the recently revoked and revised sentence of co-defendant Cheryl Amirault LeFave constitutes an inequity in the sentencing of the two co-defendants.

It is the opinion of the majority of the Advisory Board that this inequity constitutes gross unfairness warranting the Commutation of the sentence(s) of petitioner, particularly where as here, it has been demonstrated there is no other "viable administrative or judicial remedy available." (Governor's Guidelines, par. 2 sec. (a)).

Accordingly, the majority of the Board recommends commutation of petitioner's sentence(s) to a term of years which would produce a result placing petitioner in the same position as co-defendant LeFave (time served followed by supervised release on the same conditions imposed on co-defendant LeFave), or at the minimum produce parole eligibility, upon confirmation by the Governor's Executive Council.

The majority of the Board states as reason therefore, the following:

1. Petitioner was sentenced to concurrent 30-40 year terms of imprisonment on eight (8) convictions for Rape of Child and concurrent 8-10 year terms on seven (7) convictions for Indecent Assault and Battery on a Child.

Co-defendant LeFave was sentenced to concurrent 8-20 year terms of imprisonment on three (3) convictions for Rape of Child and concurrent 8- 10 year terms on four (4) convictions for Indecent Assault and Battery on Child.

Both defendants were convicted of identical criminal conduct (i.e. actual overt acts of rape) in petitioner's case of 9 victims and in LeFave's case 4 victims.

In 1996 co-defendant LeFave received an additional 3 month term of commitment for crimes committed while incarcerated of assault and battery and threatening to commit a crime.

2. During the pendency of the lengthy procedural history of these cases, Attorneys on behalf of co-defendant LeFave timely filed a motion to Revise and Revoke her sentence pursuant to Mass. R. Crim. P. 29. The legal ground for this motion was contained in paragraphs 4 and 5 of the motion and stated as follows: "in this case, for this particular defendant, a more appropriate, just, and effective sentence to be imposed would consist of a period of incarceration followed by a lengthy period of probation under specified conditions of supervision. The advantages of such a sentencing structure were known in 1987, when the original sentences in this case were imposed, but were not specifically presented to the sentencing judge by either party. Accordingly, the trial judge did not have the benefit of that information in sentencing the defendants" .... par. 5: "Based on this additional information... it is in the interests of justice the defendant present sentences be revised as follows..." (i.e. time served followed by 10 years probation with terms and conditions).

In support of this motion, Attorneys for LeFave submitted a memorandum documenting the efficacy, in cases of this nature, of a period of commitment (in this case time served), followed by a lengthy probationary period with terms and conditions. (See Motion to Revise and Revoke and transcript).

3. A motion to revise and revoke was never filed on petitioner's behalf and the time for filing such a motion has long since expired. Mass. R. Crim. P. 29. Accordingly, only co-defendant LeFave could receive a hearing on this motion.

4. On October 21, 1999, a hearing on LeFave's motion took place before the Court (Chernoff J.) At the hearing, the Office of the District Attorney for the Northern District (Middlesex County) stated in open court that "in the interests of Justice, that the Commonwealth a does not oppose this morning, the defendants motion to revise and revoke her sentence." (See Transcript).

Accordingly without opposition from the Office of the District Attorney and on the ground set out in the Motion (par. 2 above) co-defendant LeFave's sentences were revoked and revised to time served (i.e. 8 years 19 days) with 10 years probation under terms and conditions. (See Motion to Revise and Revoke transcript).

5. The Office of the District Attorney stated at the motion hearing and at petitioner's Commutation hearing, in substance, the following as its reasons for not opposing LeFave's motion and her release on probation.

a. That the families of the victims in LeFave's case(s) indicated "that the ordeal had been going on for them for 15 years and it is time that it end" (See Transcript of hearing dated d October 21, 1999).

b. "...the families simply wanted the convictions to stand and for Ms. LeFave to be on strict probationary terms for the next 10 years" (See Transcript of Hearing dated October 21, 1999 and Videotape of Commutation Hearing held September 20, 2000).

c. That because LeFave was out on bail pending trial (and for some period pending appeals) without incident that she was not a threat to public safety. (See Videotape of Commutaticn Hearing held September 20, 2000).

6. At petitioners Commutation hearing on September 20, 2000, the Office of the District Attorney conceded that the legal ground for LeFave's revoked and revised sentence (i.e. the efficacy of time served followed by probation) is equally applicable to petitioner's case. (See par. 2 above).

7. The Office of the District Attorney also conceded that its basis for believing LeFave was not a threat to public safety was that she had been free on bail without incident. The Office of the District Attorney further conceded that petitioner was also free on bail pending trial without incident. The Office of the District Attorney nevertheless maintained that although LeFave for the same reason was not a threat to public safety, petitioner "could be." Hearing September 20, 2000. {15}

8. At the Commutation hearing on September 20, 2000, when offered the opportunity to provide expert rebuttal to the expert testimony offered by petitioner that he was not a threat to public safety, the Office of the District Attorney offered none, before, during or after the hearing. {16}

9. Subsequent to the hearing, the Office of the District Attorney stated it did not know, at this time, whether it would seek to commit petitioner as a sexually dangerous person (G.L. c. 123A).

10. The Office of the District Attorney has never filed a petition to commit codefendant LeFave as a sexually dangerous person, even though like petitioner, she was also convicted of actual rapes of children and not as an accomplice or an a theory of joint enterprise.

Conclusion

Although co-defendant LeFave had the opportunity of a hearing on a motion to revise and revoke based on the efficacy of a revoked and revised sentence of time served and probation, the petitioner, through no fault of his own, has had no such opportunity. Moreover, petitioner will not have such an opportunity because a motion to revise and revoke was not timely filed on his behalf and the time to file a motion to revise and revoke has expired.

Accordingly, petitioner has demonstrated by clear and convincing evidence that his further incarceration would constitute gross unfairness, because of the basic equities (or inequity) involved i.e. the severity of his sentence in comparison to the sentence(s) received by co-defendants.

Petitioner has now served 15 years in prison, much of it in protective custody. {17} Petitioner's institutional infractions have been minor and few (as contrasted with co-defendant LeFave who received an additional 3 month sentence for crimes of assault and battery and threatening to commit a crime, while incarcerated as well as receiving 10 disciplinary reports.)

Petitioner's prior record is minimal and, as stated above, he remained free on bail pending trial without incident.

The petitioner enjoys extraordinary family and community support" {18} including his wife and children who have persevered with success while maintaining contact with their father while in prison.

While the number of victims in petitioners case (nine) are greater than the number in co-defendant LeFave's case (four), in the opinion of the majority, the interests of justice have been served by the greater number of years served by petitioner (seven or nearly twice the number of co-defendant LeFave) and the conditions under which they were served (i.e. protective custody or segregation).

In the end, this is a case of simple fundamental fairness. If codefendant LeFave had the opportunity to persuade the court her original sentence was too harsh and time served followed by probation was more in the interest of justice, then petitioner should have the same opportunity. Since through no fault of his own he does not, executive clemency is the only remedy available to him to address this inequity.

Finally, the majority of the Advisory Board wishes to note that its opinion was made, as required by the Governor's Guidelines, without regard to the guilt or innocence of petitioner.

It must be acknowledged however, that it is clearly a matter of public knowledge that, at the minimum, real and substantial doubt exists concerning petitioner's conviction.

The public record of the judicial proceedings in these cases, is replete with inconsistent and conflicting judicial opinions concerning whether justice was done. Even the Office of the District Attorney has acknowledged that flawed interviewing procedures were employed in interviewing the victims. This in a case, which by all accounts contained relatively little in the way of physical evidence to corroborate in some instances extraordinary, if not, bizarre allegations. These and like flaws in the investigative procedures in similar cases elsewhere in the nation have since led to the discrediting of some of those convictions.

Most recently a juror in petitioner's trial wrote to express doubt and regret over the decision to convict.

It is undeniable that it was in the context of this mounting doubt that the court revoked and revised co-defendant LeFave's sentence without opposition from the Office of the District Attorney. It is also undeniable that it is in the context of this mounting doubt that petitioners Commutation must be considered.

While executive clemency should never, of course, be simply a response to public clamor, on one side or the other, where, as here, the record of a case raises real and substantial doubt the entire record of the case should be given careful consideration.

Accordingly, the majority of the Advisory Board respectfully recommends the Governor exercise her full authority to review the entire record of this case.

For the majority of the advisory board, signed on this date of the 29th of June, 2001:

John P. Kivlan, Board Member
Daniel M. Dewey, Board Member
Robert Murphy, Board Member

 

{15} in support of its position the Office of the District Attorney maintained that it somehow made a difference that some of LeFave's time on bail was while an appeal was pending. No evidence was offered as to how this made difference as to the issue of being a threat to public safety.

{16} The Office of the District Attorney did provide two letters from inmates concerning the petitioner. Although the District Attorney received these letters some time ago, they were never acted upon and in an independent investigation recently concluded by the Department of Correction they were, in substance, determined not to be credible.

{17} His 15 years served would provide parole eligibility on a life sentence for murder in the second degree or, for that matter, a life sentence for rape.

{18} The Advisory Board has received numerous letters of support for the petitioner including a letter from a Juror in his trial. Opposition has been received, understandably, from the families of the victims and from the Office of the District Attorney.

 

CONCURRING OPINION

Although we disagree with some of the focus of the majority opinion, two members of the Board concur with the unanimous recommendation that a commutation is warranted in this case. We further concur with the core reasoning contained in the majority opinion: that as a matter of fundamental fairness, since the petitioner's co-defendant LeFave, who was convicted of the same criminal conduct in the same set of circumstances, had the opportunity to persuade the court to change her sentence, the petitioner should be strongly considered for commutation relief because he does not have that available remedy. Thus, this recommendation is based on a premise more profound than merely a disparity of the petitioner's sentence in relation to his co-defendant LeFave, it is based on a disparity of remedy. As pointed out in the majority opinion, this remedy disparity is not the fault of the petitioner. For that matter, it was not created by the court or the District Attorney's Office.

The concurring members recommend that conditions of community supervision be established that would address some of the concerns that the victims and their families may have if the petitioner is released to the community. Specifically, we recommend that the petitioner participate in mandatory sex offender treatment if he is released.

The concurring member's recommendation to commute the petitioner's sentence is based on the specific issue of disparity in sentencing resulting from the unavailability of a judicial remedy that existed for his co-defendant. Consistent with M.G.L. c. 127, 154 and The Governor's Commutation Guidelines, the Board did not attempt to do the impossible and "re-try" the petitioner's case. At the commutation hearing, the questions posed by the Board were not raised in an attempt to analyze the evidence that was the basis of the petitioner's conviction. Therefore, notwithstanding the petitioner's claims of innocence, the concurring member's analysis is anchored on the premise that Mr. Amirault's convictions are lawful and stand despite numerous court challenges. Thus, similar to his co-defendant LeFave even if his sentence is commuted, the petitioner will remain convicted of these serious crimes.

For the concurring members of the Advisory Board, signed on this date the 3rd of July, 2001.

Michael J. Pomarole, Chairman
Maureen E. Walsh, Board Member


ABSTAINING MEMBER

For the abstaining member of the Advisory Board, signed on this date the 29th of June, 2001.

Doris A. Dottridge, Board Member