An earlier draft was posted to Usenet under this header:
The full text of Judge Borenstein's decision is indexed and accessible from this URL
http://www.tiac.net/users/hcunn/witch/bd-cont.html
The same web-page has links to more detailed background about the case.
Cheryl's brother Gerald Amirault was convicted on similar charges in 1986, and remains in prison. Their mother Violet died in 1998.
Justices Marshall and Ireland, as recent appointees, have not previously ruled on the Fells Acres case. The other five had voted (24 March 1997) for a 6-1 decision, authored by Charles Fried, that even though the procedures of Cheryl's 1987 trial were defective, society needed "finality" in criminal convictions. More recently, however, they had, without a formal vote, allowed Judge Borenstein to hear "new evidence" from Doctors Bruck and Schetky, and from any experts the prosecution might wish to call.
Before this hearing on 6 May, the Justices had time to study the record of the case, including Judge Borenstein's decision (referenced above), the prosecution's appeal brief, and the defense's rebuttal
brief (submitted on 16 April). I do not know if the prosecution appeal has been posted to the web. The defense rebuttal can be found at
http://www.ultranet.com/~kyp/Brief499.html
The courtroom was filled ten minutes before the start, both with attorneys and assistants in front, and spectators (60-80?) in back. Those who couldn't get seats were able to listen to an intercom in the hall outside.
Both prosecution and defense were allotted 1/2 hour to make arguments and field questions from the justices. The justices jumped in very quickly and frequently with questions; neither the prosecution nor the defense were given a chance to make long prepared statements. Many of the questions were based on the written briefs, rather than on the attorneys said.
The account is made from cryptic handwritten notes, rather than a tape recording, and may contain occasional errors and omissions.
Her principal argument was that even if the "interviewing" (interrogation) of the child witnesses was defective (an admission the prosecution had been forced to make before Judge Borenstein), it didn't matter, because the children earlier had made "spontaneous" disclosures to parents and other unofficial people.
Justice Marshall questioned a prosecution claim that the expert "new evidence" was not "new" after all; that supposedly it was available in the original trial, and was either (a) unpersuasive back then, or (b) not presented sufficiently energetically by the defense. (In either case, under Massachusetts procedure, the defense would be barred from dragging out a case indefinitely by bringing it up again.) Justice
Marshall noted that in 1987, the prosecution had successfully persuaded the trial judge to exclude an expert from testifying about the suggestibility of small children, on grounds there was not
sufficient research to bolster the "expert"s authority.
Justice Marshall tried to pin down Ms. Sullivan: Was she claiming there was no change in scientific knowledge since 1987?
Ms. Sullivan tried to draw a distinction between scientific research and opinion. Supposedly scientific opinion on suggestibility of children had not changed, even though there was more evidence about it.
Justice Fried expressed the hope that "surely you have more argument than that?" Why don't the studies matter?
Ms. Sullivan reverted to her main contention, that none of the research applies to Fells Acres, because all of the children had "disclosed" spontaneously.
Justice Marshall asked about the prosecution concession (before Judge Borenstein) that improperly suggestive techniques had been used to interview the children.
Again, Ms. Sullivan claimed the children's "disclosures" came first, before they could be tainted by improper interviewing.
Justice Greaney clarified the prosecution's contention: if the "new evidence" was not in fact new, then there was no ground to overturn Cheryl's conviction.
Justice Marshall questioned the "spontaneity" of the children's disclosures. Wasn't it possible they had been improperly interviewed by parents and other family members?
Ms. Sullivan replied simply that she didn't like to use the word "interview" in reference to parents and other family members.
Justice Marshall followed up -- but wasn't the alleged abuse "disclosed" in response to questions by parents?
Ms. Sullivan admitted that was so.
Justice Lynch asked, but weren't the parents' questions prompted by the children's "sexualized behavior"?
Ms. Sullivan readily agreed.
Justice Fried claimed that the SJC had considered (and rejected) in the original 1991 appeal, the defense argument that no "sexualized behavior" had shown up before questioning by the parents. [Editor's note-- If this is true, than by Massachusetts procedure, the SJC
shouldn't waste their time by going over it again.]
Justice Greaney asked him whether the evidence standard for overturning Cheryl's conviction should be "miscarriage of justice."
Mr. Williams agreed. He acknowledged that this required a very high standard of proof by the defense, lest, as he had earlier agreed in Judge Borenstein's court, "we open the floodgates" to appeal every sexual abuse conviction in the 1980s. [Editor's note-- he may have
made this concession to avoid (as much as possible) direct conflict with Justice Fried's decision of 24 March 1997, calling for "finality" in criminal cases.] Judge Borenstein found such extraordinary facts
in this case ...
Justice Fried pounced on him-- Maybe it was "extraordinary" for all the publicity it has been getting, but so what? [Editor's note--
Justice Fried is acutely aware of the nationwide contempt he has earned from his 1997 opinion.]
Mr. Williams stressed the extraordinary abuses Judge Borenstein found in the investigatory techniques.
Justice Greaney asked-- but weren't lots of other cases being done that way, eg in custody disputes?
Mr. Williams answered that in this case, investigators approached parents of children who had no symptoms. In custody disputes, there was at least an allegation that the child had symptoms.
Justice Greaney asked-- what triggered the investigation at Fells Acres?
Mr. Williams replied that one child made a "disclosure," but only after being questioned for seven months by his mother.
Justice Lynch asked whether there was previous evidence to prompt the mother's questioning.
Mr. Williams answered that the mother was suspecting abuse within days after her child entered Fells Acres.
Justice Lynch asked what caused her suspicion.
Mr. Williams answered that the boy's uncle had been a victim of abuse. The mother told the boy about it and invited him to disclose anything that happened to him. Even so, the boy did not "disclose" for seven months. Judge Borenstein did an "autopsy" on this (and other
supposedly "spontaneous") disclosures ...
Justice Fried jumped in-- Rather than an "autopsy," isn't this more of an "exhumation" of a question already faced (and rejected) by the SJC? [Editor's note -- ie Judge Borenstein should not have been allowed to
reconsider it.]
Justice Greaney asked whether the "new evidence" wasn't available, at least to some extent, in 1987? Is every conviction to be challenged constantly, just because of some minor new refinement in scientific knowledge?
Mr. Williams agreed with Justice Greaney's concern, but went on to claim that Dr. Bruck's research was not merely incrementally "better" information. Dr. Bruck was the first expert on the actual impact
of suggestive questioning.
Justice Fried asked-- what was the importance of having this detailed expert testimony about impact?
Mr. Williams replied that the jury would not understand how innocent children could talk about such revolting sexual matters, even if prompted, unless the revolting things actually happened to them. In response to an abstract statement about the risks of suggestive
questioning, without research to back it up, the average juror would say, "So what?"
Chief Justice Wilkins interrupted Mr. Williams's presentation at that point: "Leave it there."
Justice Fried interposed-- But didn't we already do that?
Mr. Sultan replied that the SJC didn't previously have the "new evidence" on suggestibility.
[Editor's note-- I missed one question by Justice Greaney and one by Justice Marshall]
Justice Marshall asked about Dr. Amani(?)'s expert testimony for the prosecution.
Mr. Sultan answered that such expert testimony was now thoroughly discredited, that any minor and normal childhood problem (eg one nightmare) must be interpreted as evidence of abuse. There was no actual corroborating evidence that any of the children were abused.
Justice Fried spoke up -- Really? The trial record shows there were problems before the outcry in September 1984.
Mr. Sultan answered that nobody reported anything before the hysteria broke out.
Justice Fried continued-- but parents testified that they had seen symptoms of abuse before the community alarm was raised.
Mr. Sultan answered that even the most innocent circumstances can be made to look evil in retrospect, by those (parents) whose actual memory has begun to fade, and who have been persuaded to put the worst
interpretation on everything.
[My notes have a gap here. Justice Fried continued to press Mr. Sultan, apparently seeking to trap him into accusing the parents of perjury (which would open him to the emotionally powerful retort, "How dare you blame the victims!"). I believe it was at this point that
Mr. Sultan was finally driven to protest-- "You are making a caricature of my argument, and, with all due respect, Your Honor, I believe an unfair one." But perhaps this protest was made earlier to Justice Fried by Mr. Williams.]
About this time, the defense's time ran out, and the hearing ended without ceremony. Principals and spectators filed out, while the justices prepared to hear the next case on appeal.
A. The Prosecution's half hour
Catherine Sullivan spoke for the prosecution (Middlesex County DA's office).
B. The Defense's half hour
Daniel Williams of NYC and James Sultan of Boston spoke for the defense.
(1) Daniel Williams's presentation
Mr. Williams opened. He explained that he wished to address the record, but leave certain legal questions to Mr. Sultan. Before he could go much further, the questions started flying.
(2) James Sultan's presentation
Mr. Sultan asked the SJC to look at the factual record (1) by looking over Judge Borenstein's finding, and (2) by examining it for themselves.
None of the justices were buying prosecution claims that Dr. Maggie Bruck's expert testimony on children's suggestibility was "not new evidence" or not reliable. Justice Marshall tried to get Ms. Sullivan to concede that parents, not just prosecutors, might also have contaminated children's memories with suggestive questioning.
Justices Wilkins, Abrams, and Ireland said nothing that would tip their hands.
"Yes. A challenge to the Fells Acres conviction implies a challenge to the whole class of 'multiple offender, multiple victim' day-care cases. Across the country, as we have recovered from the hysteria of the 1980s, courts have come to recognize that child molestation is a furtive crime of individuals, not of the entire staff of large and successful day-care centers, open to constant unannounced visits by parents and tradesmen. The most striking 'uniqueness' of this case is the mountain of evidence showing how the investigation went wrong from the very beginning. Surely our Commonwealth does not wish to remind the world of our shame 307 years ago, when our courts, alone in the American Colonies, destroyed the lives of innocent people solely on unsubstantiated fantasies of children?
"But I hasten to reassure this court that, while there were dozens, possibly hundreds of such day-care cases nationwide, relatively few remain in Massachusetts alone."
Perhaps at least some justices will make allowances for the contortions that Mr. Williams was putting himself through in deference to Justice Fried's "finality" doctrine. Perhaps they will realize that what looked like evasiveness was an attempt to preserve a legally correct, even if convoluted, path to justice. But to the lay observer, he seemed to present a weaker argument than the facts warranted.
(b) Nobody disputes that the children behaved abnormally at the time of the 1987 trial, three years after the September 1984 panic. The defense, however, points out that there were no claims of abnormal behavior recorded by health or law-enforcement personnel before the 1984 panic. The abnormal behavior seen in 1987 came not from Fells Acres, but rather from the highly destructive interrogations and "therapy" received later, that immersed previously-healthy minds in toxic garbage. The children were abused, and horribly so, but not by the defendants. (A repudiation of the Fells Acres prosecution, together with an unconditional commitment by the Commonwealth to honor promises of support made to the children, would enable the now-late-adolescent children, if they chose, to escape destructive "survivor" cults and build new lives based on truth.)
(c) The prosecution, however, got parents to testify in 1987 that, thinking back, they now realized their children had shown unusual behavior before September 1984, even though they didn't report it at the time.
B. The parents' memories were bound to be selective, looking back two years later for anything that might help the nice prosecutors nail the fiends who had done such horrid things to their children.
C. Some parents, entirely subconsciously, were likely to confabulate memories from before Sep 1984 with what they observed afterwards, as sexual questioning and mis-named "therapy" began to poison their children's minds.
D. The one exception was the mother whose accusation started the whole case. Yet she had been obsessed with molestation, already suspecting and interrogating her child within days of his entering Fells Acres. Her brother had been molested as a child; she told her young son this, and emphasized that he should tell her at once if anything improper happened to him. Yet it was only after seven months that she was finally able to badger the boy into making a "disclosure."
E. (This argument is one that the defense attorneys dare not make.) The families had a tremendous financial stake in the success of the prosecution. A $20 million insurance settlement was split among 16 families.
This testimony of the parents was not, technically, "hearsay" (and I don't recall the defense claiming it was). The parents were testifying about acts, not words of the children.
And yet, psychologically, the issues involved are similar. Specific acts of the children (eg "Child X pushed Child Y into the wading pool") were not at issue; instead, the testimony centered on behavior patterns at home (eg "clinginess," occasional nightmares), that, considered 3 years later in the light of 1980s belief, seemed to "testify" that something was wrong in the child's life. In effect (though not according to the rules of evidence), the parents were giving "hearsay" testimony about the child's alleged symbolic testimony.
Return to index of "Fells Acres and the Boston Press."