The Boston Globe
Friday, August 17, 2001

Why Swift should free Amirault
By James M. Shannon

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 questionable.

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 circumstances?

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 a close.

James M. Shannon is a former attorney general of Massachusetts.

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