Massachusetts Lawyers Weekly
September 13, 1999

Travesty of Justice

The Supreme Judicial Court's Aug. 18 decision in Commonwealth v. Cheryl Amirault LeFave seems unexceptional, if read in a vacuum. But the case is indeed quite extraordinary.

A woman, Cheryl Amirault LeFave, and her mother, Violet Amirault, are charged with and convicted of sweeping counts of child abuse arising out of their operation of the Fells Acres Day Care Center in Malden. (LeFave's brother, Gerald Amirault, is convicted of similar charges in a separate trial.) The women are given sentences of 8-20 years. Parole is denied because they insist on their innocence. Superior Court Judge John Paul Sullivan then revises the women's sentences downward. But the SJC reverses that ruling in 1993.

In 1995, the Amirault women move for a new trial. Judge Robert A. Barton grants the motion and releases the women on bail, ruling that they had been deprived of their right to face their accusers. In 1997, the SJC agrees that the seating arrangements for the child witnesses violated both defendants' confrontation rights under article 12 of the Massachusetts Constitution. But, finding the issue waived, the SJC reinstates the convictions citing the need for "finality."

Barton publicly states his disagreement with the SJC's decision and recuses himself from the case. Judge Isaac Borenstein steps in and continues the bail. Eventually, Borenstein grants two different new-trial motions, this time on the grounds that the trial counsel's assistance was ineffective for failing to preserve the confrontation issue and that newly discovered evidence demonstrated that the manner in which the abuse allegations were investigated were "wholly unreliable."

While the commonwealth's appeal of this ruling is pending, the mother dies, leaving only the daughter, Cheryl, as a defendant when the case makes it back to the SJC in 1999. Once again, the SJC reinstates the woman's conviction, holding that the ineffective assistance issue had also been waived and that new evidence showing more clearly how interviewing techniques of children can cause them to describe sexual acts they had never experienced wasn't new and significant enough to constitute "newly discovered evidence" meriting a new trial. (Throughout the entire process, the brother, Gerald, gets nowhere with his new-trial motions before a different judge.)

The celebrated Amirault prosecutions came amidst a flurry of day-care-center abuse cases brought across the country in the mid-1980s. In the Amirault cases, as in those other cases, the allegations of abuse took on mythic proportions, involving bizarre claims of "magic rooms" and animal mutilations. And, like the other cases, the Amirault indictments were based entirely on child testimony. There was no physical evidence, other than some ambiguous medical testimony regarding relatively minor injuries to a few of the children.

Although the question of whether the children could have been encouraged by investigators to fabricate the abuse charges was raised by the defense at trial, the Amirault prosecutions took place in an atmosphere of hysteria. At the time, "children don't lie" was the battle cry for the prosecutors and anti-abuse activists. It wasn't until years later that empirical research became clear and society began to understand how easy it is to plant ideas in a child's head and how improperly suggestive the earlier investigative tactics had been.

By 1995, when Judge Barton first heard the motion of Cheryl Amirault LeFave and her mother for a new trial, the public mood had calmed and sentiment was growing that well-meaning prosecutors had perhaps, in their worthy zeal to protect children, unintentionally railroaded these defendants. Barton's allowance of the Amirault women's new trial motion, as well as Judge Sullivan's sentence revision, were courageous examples of judicial independence so valued by Massachusetts lawyers. Even more courageous was Judge Borenstein's 1997 decision to again order a new trial.

In its 1999 opinion, the SJC took the perhaps unprecedented step of acknowledging public criticism that had been made of its 1997 decision and its heavy emphasis on the importance of "finality." "The forceful, one might say enthusiastic, indorsement of an interest in finality and the application of waiver in Commonwealth v. Amirault ... apparently struck some as a radical and unwelcome departure from precedent," Chief Justice Herbert P. Wilkins wrote, in one of his final opinions for the court. "In fact, the Amirault opinion made no significant change in our treatment of postappeal motions for a new trial. It articulated society's justified interest in finality that has long been implicit, and sometimes explicit, in our announcements that any late-arriving issue will prevail only if the issue presents a substantial risk of a miscarriage of justice."

In the three other infamous day-care-center child-abuse prosecutions from the 1980s (from California, New Jersey and North Carolina), the defendants were ultimately freed and even some of the prosecutors acknowledged that the frenzied public atmosphere may have played a less-than-savory role in the way the charges were investigated and prosecuted.

But in Massachusetts things have been different. 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. Yes, trial counsel may have made serious errors. 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 court's emphasis on "finality" in 1997 (the word was mentioned five times in the opinion) was indeed a subtle but significant change in emphasis from the SJC's prior role in balancing the new-trial scales. Previously, finality had been mentioned as one concern in addressing new-trial motions, but it had never before been elevated above the risk of injustice in terms of importance.

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 to present scientific testimony that wasn't well-developed at the time of the original trials.

Society will never know for sure whether any abuse transpired at the Fells Acres Day Care Center in the 1980s. But it is readily apparent that the original Amirault trials were a travesty of justice and that judges Barton and Borenstein, as well as now-retired Judge Sullivan, have been profiles in courage throughout. Unfortunately, the courage of these judges has not led to the new trials that justice so clearly demands.

In commenting on the need for a Bill of Rights, Thomas Jefferson long ago said that "a society that will trade a little liberty for a little order will deserve neither and will lose both."

In keeping with this principle, and in light of the SJC's refusal to allow new trials, Gov. A. Paul Cellucci should seriously consider a pardon for the Amiraults.

1999 Lawyers Weekly Inc., All Rights Reserved.

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