Limited Taxation

The Wall Street Journal
Tuesday, August 24, 1999

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 iPaul Celluccin 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 ourts 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 bee  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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