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 in
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.