IT IS IMPOSSIBLE not to feel sympathetic toward the young adults whose lives have been
changed because as toddlers they attended the Fells Acres Day School. And any parent can
understand the anguish of the mothers and fathers who feared that their children had been
horribly abused and sought to protect them through the investigation, trial, and its aftermath.
Whatever happened at Fells Acres, their suffering is real.
Acting Governor Jane Swift must decide whether to commute the sentence of Gerald
Amirault, the last defendant still in prison. The Parole Board has recommended commutation
of his 30- to 40-year sentence to the 15 years he has already served.
There are three main points that Swift should consider: The first is that it is impossible to
determine what happened at Fells Acres. The witnesses against Amirault were toddlers or
very young children at the time the allegations were made. Their testimony was contradictory
and came after considerable prodding by prosecutors and psychologists. The methods used
to question the children have been largely discredited because of the strong possibility that
the methods plant ideas of abuse in young minds.
The Supreme Judicial Court, which upheld Amirault's conviction, described some of what the
children said happened as ''quite improbable.'' And more than 20 witnesses testified that their
open access to the facility precluded the secret activities described by the children. Yet the
children and their parents have no doubt that the children were abused, and they feel so
strongly about it they have given up their anonymity to tell of the pain they have experienced.
But even without taking into account the national hysteria that led to a series of faulty cases
brought by prosecutors around the country alleging child sexual abuse and accepting the
sincerity of the now-grown children and their parents, the evidence of the Fells Acres case is
The second point is that it is absolutely clear that the method by which the children were
examined during the trial violated Amirault's right to confront his accusers under Article 12 of
the Massachusetts Constitution. The SJC was unequivocal on this point. The court
determined, however, that the failure of Amirault's counsel to make this argument at the time
of the trial constituted a waiver preventing it from being raised as an issue later. The court
said counsel for Amirault had sufficient notice that the constitutionality of allowing children to
testify in court without having to face the person they accused was a ''live issue'' at the time of
Amirault's trial, so Amirault, having failed to make the argument in the first instance, should
not be granted a new trial based on that argument.
In Amirault's case there was much contradictory evidence from doctors, psychologists, and
parents. His conviction rested largely on the constitutionally defective testimony of the young
children. Under these circumstances the denial of Amirault's right to ''meet the witnesses
against him face to face'' is not a mere technicality. The testimony resulted in his spending the
last 15 years in prison.
Finally, Swift should take into account the fact that Amirault has spent so much time in prison
notwithstanding substantial questions surrounding the fairness of his conviction. Two Superior
Court judges have taken highly unusual positions expressing deep doubts about the events at
Fells Acres. His accusers argue that 15 years is not enough compared to the continued
suffering that they experience. Weighed against that is the factual and legal muddle of the last
17 years since this investigation began and the uncertainty of Amirault's guilt. He has served
15 years. How certain can we be that he should serve perhaps another decade given these
Without questioning the sincerity of Amirault's accusers, Swift should, in making her decision,
consider the reliability of the evidence, the denial of Amirault's right under the Constitution to
confront his accusers, and the length of time he has served in prison, and then temper
uncertain justice with mercy. Swift should commute Amirault's sentence and bring this case to
James M. Shannon is a former attorney general of Massachusetts.