and the
Citizens Economic Research Foundation

The Wall Street Journal
October 7, 1999


The Pursuit of Justice, Continued


When the Supreme Judicial Court of Massachusetts issued its Aug. 18 decision reinstating the convictions in the Fells Acres Day School case, many people believed--and many also hoped, no doubt--that this case would fade quietly away. As it turns out there has been nothing quiet about the reaction to the decision and to the court that made it.

"The supreme judicial court of Massachusetts last week could have ended perhaps the commonwealth's worst miscarriage of justice since the Sacco and Vanzetti trial of the 1920's," the Christian Science Monitor declared in an editorial. This was, the Monitor noted, "the second time in two years the court refused to correct . . . a prosecution that should never have been brought," a case built on testimony from children who were bribed and badgered until they said they were abused. The Boston Globe had its say, which was that the court had "moved sensibly" toward finality, and that the juries had after all believed the children. The state's third-largest paper, the Worcester Telegram & Gazette, took quite the opposite view.

But it was the opinion of the Massachusetts Lawyers Weekly that became a news story in itself with its September editorial on the Supreme Judicial Court's latest decision in the Amirault case.

There was good reason for the interest in this story, carried on the wires and the airwaves and in the Boston papers. Never before in the 27-year history of the weekly had it taken direct issue or sharply criticized any ruling by the state's highest court. What the editors confronted, editor Paul J. Martinek explained last week, was a decision that reflected shamefully on the Massachusetts judicial system of which he and his colleagues had always been proud. The justices, he averred, had put themselves--and the system--"in the position of being willing to close their eyes to injustice."

The editorial, titled "Travesty Of Justice," declared: "In six different decisions in the Amirault cases the SJC has seemed determined to defend the prosecutors and insist that these defendants belong behind bars. Virtually scoffing at any possibility that an injustice may have been done, the justices have been unyielding in their refusal to let a new trial take place."

And further: "The prosecutors here seem unwilling to admit any possibility that they might have sent innocent people to jail for crimes that never occurred. Yes, confrontation rights were violated. Yes, investigation tactics were unduly suggestive. . . . But, according to prosecutors, the jurors believed the children and that's all that matters.

"Such defiance should perhaps be expected of public officials who need to be protective of their own reputations. But it is surprising to witness this quality emanating from the SJC--a court that has, over its 307-year history, earned a deservedly high reputation for protecting individual liberties."

The editorial board vote in favor of running the piece was, Mr. Martinek says, "overwhelming"--and it cut across the ideological spectrum. He could not say he or his colleagues knew for certain what had happened at Fells Acres, but he did know that the same sort of notorious cases as had been brought against the Amiraults--prosecuted the same way, on the same kind of evidence--had been overturned everywhere in the country. "Everywhere," says the editor, "but here. In the cradle of liberty."

Among others now making their views on the Amirault prosecution known is Harvard Law Prof. Charles Ogletree--the sole member of that eminent institution's otherwise much-quoted faculty prepared to offer an opinion on the extraordinary issues raised by this unavoidably noticeable case reeking and smoldering in the neighborhood.

"I could not sit back and watch this anymore," says Mr. Ogletree, who has now joined the Amirault defense team.

Back in Wenatchee, Wash., others have been watching the Amirault case as well. On Sept. 22, Superior Court Judge Wallis Friel delivered his findings on the questions a Washington State appeals court had appointed him to look into. These had to do with imprisoned farm worker Manuel Hidalgo Rodriguez, convicted in the Wenatchee sex-ring prosecutions--and whether the state had improperly influenced the testimony of the girls who had accused him. As to whether Mr. Rodriguez would be convicted in a new trial, Judge Friel said this was unlikely, given what was now known about the methods of interrogation used on the children.

In his decision, the judge took special note of the case of Commonwealth v. Amirault in the Supreme Judicial Court of Massachusetts--in particular, the presentation of research on the suggestibility of children, and the recognition since the late 1980s of the impact of child interviewers asking repeated, leading questions. This testimony in Amirault case, the judge found, was in the same vein as his own findings in the case of Manuel Hidalgo Rodriguez. The testimony, which Judge Friel found lent "great significance" to the violation of due process, was, of course, the very research the Supreme Judicial Court had rejected as nothing new in its latest decision.

Judge Friel--who had by now plowed through the details of two of these prosecutions, as directed by the appellate court--did not trouble to conceal a rational mind's response to what he had found there. In his decision on the key case of Harold and Idella Everett (the biological parents of the two girls who were the accusers and the state's star witnesses), the judge reflected on one of the child-services professionals who had cited the well-accepted theory that children subjected to sex abuse did not disclose secrets.

"This," the judge mused, "raises the question whether group sex involving 30 to 60 adults, carried on for more than 6 years at several locations in 2 counties on an almost daily basis, qualifies as a secret."

Judge Friel's decision in the Rodriguez case now goes back to the appellate court for final action. With these findings, Mr. Rodriguez has reason to be optimistic about the chances for a reversal of conviction.

In Massachusetts, there isn't much optimism about Gerald Amirault, now beginning the 14th year of a 30- to 40-year sentence. In Massachusetts as in Wenatchee, and in most prosecutions like them, the weight of the heaviest sentence fell on the man--automatically assigned the role of chief predator. The prosecutors who built these cases understood that scenarios with a man as the central offender were more familiar and more palatable than those that presented women as cold-blooded rapists in the lead of a conspiracy to assault toddlers. Especially the kind of women accused in these prosecutions: nursery school teachers--young mothers, middle aged matrons, elderly grandmothers.

In the Little Rascals day-care case in Edenton, N.C., the man assigned this role was Robert Kelly. Two weeks ago prosecutors announced they were dropping the last of the sex-abuse charges against Mr. Kelly, former owner of the day-care center. This final ending of one of the more conspicuous day care cases, hasn't made any news to speak of. It began in 1989--a saga complete with the usual multiplying numbers of child victims said to have been molested, nonstop scandal coverage, the establishment of a large insurance-paid fund for the pain and suffering of the supposed victims' families. When he was convicted in 1992, Mr. Kelly was sentenced to 12 consecutive life terms. His conviction was overturned three years later. Miami police officer Grant Snowden, whose conviction was thrown out in 1998 after he had served 11 years, had been sentenced to a more lenient five life terms.

Both can consider themselves more fortunate than Gerald Amirault, who in the prosecutors' scenario lurked everywhere--in secret rooms and behind closed doors, attired in a clown suit, while his mother and sister committed crimes of their own, and everyone had a camera. The former lead prosecutor in this case, Lawrence Hardoon has told of a moment of epiphany in which it was revealed to him that the Amiraults were all involved in pornography. Clearly, prosecutors of these cases around the country--numerous of which involved the camera, picture-taking theme--must have had similar epiphanies.

The next chapter in this story is unclear--as is the final resolution. What is clear is that, no small thanks to the action of the Supreme Judicial Court, the Amiraults' prosecution and that court's performance are now objects of hard and increasing scrutiny, with no finality in sight.

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