Judge Borenstein's decision-- Part III-C2

Child Witness #2: JB

First posted: 12 Jun 98
Typo corrected: 2007/1015

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2. JB

The manner in which JB was handled is an example of one of the most blatant, unfair and unreliable treatments of a child by investigators, and parents. Neither her parents, nor medical personnel had ever raised a single concern about JB before September, 1984. By that time she had been enrolled at FADS for more than one and one half years, and it was only after she was subjected to highly suggestive interviews, that JB allegedly made her first disclosure of sexual abuse. In addition to the suggestive interviews, both before and after this disclosure, JB was subjected to other powerful influences which affected the reliability of her disclosures. These include, for example, parental pressure to disclose, as well as cross-contamination through informal visits and months of play therapy with another little girl, AJ, but who did not testify at the defendant's trial. Investigators were well aware of these influences. JB herself told investigators that she had knowledge about the investigation from exposure to the media, that she had contact with her friend AJ, and that she did not talk to her father, because he would scream at her (presumably when she talked about FADS). Investigators chose to ignore that information, because it did not serve their preconceived ideas of what had happened to JB. This child mentioned names of other people who took pictures including, "Karen," "Michelle," and a "mean girl clown," but investigators did not pursue these "disclosures." Claims that "Tooky spanked Cheryl" or that Cheryl told the clown to "knock it off" when he was spanking the children were

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dismissed; however, allegations that Cheryl took pictures and Cheryl was in the magic room were pursued with vigor. JB talked of a "Miss Ann Marie" as being her teacher. While it is true that a woman named Ann Marie worked at FADS, she never worked there while JB was enrolled. This glaring inaccuracy was also ignored by investigators. The bottom line is that any disclosure that did not implicate this defendant or members of her family was bypassed in favor of pursuing only those that did.

In light of the newly discovered evidence this court is left with the nagging question: How did JB's initial disclosure about a clown abusing her with a pencil and a thermometer evolve into the defendant abusing her with a pencil and a thermometer? (Ex. 56, 10/20-21) JB's allegations against the defendant, as well as the first revelation of physical and behavioral symptoms which may be consistent with sexual abuse, were made only after suggestive, coercive interviews and all the other influences were brought to bear on this child.

As this Court will explain below in more detail, every trick in the book was used to get the child to say what investigators - and eventually her parents - wanted her to say, rather than to learn, in a fair manner whether anything had actually happened to her. Therefore, based on both the aforementioned reasons and the findings of fact, I find that JB's testimony was, and forever will be unreliable, and there is no independent evidence to support her claims.

JB was born on November 22, 1978. (Ex. 56, 4/72) She attended FADS five days

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per week, from 8:00 a.m. to 3:00 p.m., from August, 1982 until June, 1983. (Ex. 56, 3/7) During the time she attended FADS and until after allegations were made in September, 1984, no one ever expressed a concern about her behavioral or physical well-being. The videotapes of the Kelley interviews suggest that she was a happy well-adjusted child. It is worth noting that JB's parents filed a civil lawsuit against the Amiraults sometime in 1985.

Disclosure History

Mother learned of Gerald Amirault's arrest in early September, 1984 on the news and did not attend the meeting at the police station. (Ex. 56, 3/9) About one week after FADS was closed down, in response to an article she read in the newspaper, Mother contacted the police with some questions. (Ex. 56, 3/9-10) Mother spoke with Detective Byrne who told her to choose a quiet time to ask JB about a magic room, a secret room, and a clown. (Ex. 56, 3/9-10) At that time, Mother did not know the significance of those three words and Detective Byrne did not tell her. (Ex. 56, 3/11) This was extremely inappropriate as Mother was in no position to conduct such critical and important questioning, and - as we now know from the newly discovered evidence - it risked leading the child into making unfounded allegations. This was the beginning of planting in the child ideas about alleged events; rather than having the child explain without suggestion what, if anything, happened to her. Mother then questioned JB if

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she knew about a magic room, a secret room, and a clown. (Ex. 56, 3/12) JB responded that she did not know, so Mother did not pursue this line of questioning any further. (Ex. 56, 3/12). The following morning JB told Mother that she did remember a magic room and that there was a clown there who did magic. (3/56) At that point, Mother remained unconcerned that her daughter had been sexually abused. (3/57)

Between mid-September and mid- December, 1984, Mother had no contact with the police or investigators regarding FADS. The only person she spoke with about FADS was AJ's Mother, JB's occasional baby-sitter. AJ was a student who went to FADS with JB and who was also interviewed about alleged abuse.

In mid-December, Mother read an article in the newspaper which listed signs and symptoms of children who have been sexually abused. Mother concluded that JB exhibited eight or nine of the approximately twelve symptoms on the list, notwithstanding that there had been no prior revelations to anyone of any of these behavioral symptoms. On December 19, 1984, Mother informed JB's pediatrician of her concerns. (Ex. 56, 3/18). The pediatrician advised Mother to contact the police. Later that same evening, Detective Byrne met with Mother and Father at their home, and advised them not to say anything to JB about FADS until after an investigative interview with JB had been videotaped. While Detective Byrne's advice was sound, it was also too late. JB, she had already been exposed to media reports, questioned by her parents and she had been together on several occasions with AJ. (Ex. 56, 3/20). Detective Byrne

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filed a 51A that day. (Ex. 2A-3)

On December 27, 1984, Mother met with Judith Kirwin, a DSS social worker in her home. Although Mother's testimony and Kirwin's report on this meeting indicate that Kirwin did not speak with JB, at trial JB testified that a lady came to her house and asked her a lot of questions about FADS. (Ex. 56,4-98) Whether this was Judith Kirwin remains unclear. Based on nothing more than the alleged behavioral symptoms, and another child "victim's" implication that JB was sexually abused, the DSS substantiated the report of abuse on December 27, 1984. (Ex. 2A- 18)

The first Susan Kelley Interview

On December 28, 1984 Susan Kelley conducted her first interview with JB, an encounter that was unfair, leading, suggestive, and which tainted - forever - any possible way of ever determining whether this child was in fact abused; by now the child had already been exposed to numerous inappropriate influences. The newly discovered evidence proves, beyond any reasonable doubt, that all these techniques were improper and dangerous; a jury, hearing the newly discovered evidence, would have reached a different result. (EX. 2B-1-2; Ex. 31). Despite Kelley's persistent and leading questioning, JB made no disclosures during the approximately 45 minute interview. On the videotape, JB appears to be a happy, relaxed and well-adjusted child. (Ex. 31)

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Interviewer Bias

Kelley's predisposition against the Amiraults was evident through her use of suggestive interviewing techniques throughout the interview as well as her conclusion that JB had probably been abused, despite the fact that JB made no disclosures even suggesting that she had been sexually abused. For example, JB stated that she saw AJ with her clothes off in the bathroom and Kelley completely passed over this answer. (Ex. 2B-240)

After this interview, Kelley met with JB's parents and told them that she thought JB was sexually abused and that she needed psychiatric help, despite the fact that JB had adamantly denied being abused and that there was no evidence she had been abused. (H 1-263) This led the parents - understandably - to become convinced that their child had been abused.

At the end of the interview, Kelley denigrated the entire process that JB had actively participated in by saying to JB "I just want you to know that if you ever decide that you do want to come and talk to me about AJ and the clown, that you could tell your mommy and your mommy would bring me back to talk to you, okay?" (B-31) Kelley treated JB's denials as though they never happened, thereby indicating to JB that she had not completed her task yet; in fact the child's denials were treated as untrue.

This interviewer was so biased that she engaged in an investigation not to learn what really happened, but to make sure that the Amiraults were convicted; it would only

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be a matter of time before Kelley would get JB to say what she, the interviewer, wanted to hear. The evidence in support of the motion clearly shows that the mistakes Kelley made are unacceptable in the field, and lead to a miscarriage of justice. During the course of the interview, Kelley employs several inappropriate and suggestive interviewing techniques:

The videotape of the first Susan Kelley interview was played for the jury at the end of JB's cross-examination at trial. (Ex. 56, 4/126-127) In the absence of the newly discovered evidence it would have been impossible for the jurors to understand the impact of Kelley's actions. The actions of Kelley, I find, clearly and consistently violated every requirement of a fair interview seeking truthful answers in a neutral

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investigation. Every one of Kelley's actions led the child to make unreliable disclosures. Only with the newly discovered evidence could this defendant have countered the evidence of children testifying, and resisted the inaccurate and unfair requests of jurors by the Commonwealth throughout the trial to just "use your common sense."

JB's First Disclosure

JB allegedly made her first disclosure to her Mother in the car on the ride home after the Kelley interview on December 28, 1984. Mother, Father and JB drove to Father's workplace. (Ex. 56, 3/34) Approximately, fifteen minutes after this inappropriate interview ended, Mother and JB allegedly were sitting alone in the car, while Father went into the workplace. (Ex. 56, 3/35) JB asked Mother if FADS was still there. Mother explained that it was closed. According to Mother, JB began to cry and said that she was scared because Daddy, Mommy, "J" and "P" (her two siblings) were all going to get killed because she was talking. (Ex. 56, 3/36) (The concept of "killing" was not foreign to JB. See Ex. 2B-19 where JB tells Kelley that she said "AJ, be quiet, before I kill you.") Mother asked JB who was going to kill her family and JB said that the clown was. (Ex. 56, 3/39) Mother then reassured JB that no one would hurt her or her family. JB stated that the clown almost put his pee pee on her chest and in her vagina. Mother asked whether he almost did, or if he did and

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JB replied that he did. She said that he put it in her bum-bum and pee-pee. JB also told Mother that he did the same to AJ. (Ex.56, 3/39-40) The Clown had spanked them on their bum-bums and in their face and hurt them. (Ex. 56, 3/41) They also had to put lipstick on their face and that someone "other than Tooky or Michelle" had taken pictures and that they had to take their clothes off for the pictures. (Ex. 56, 3/42) There were thermometers and pencils put in their bum-bums and vagina. (Ex. 56, 3/43) When Father returned to the car, they drove home and Mother immediately contacted the Police Department and then she wrote down the entire conversation with JB that took place in the car. (Ex. 56, 3/48)

The Second Susan Kelley Interview

JB was interviewed a second time by Kelley on January 11, 1985. JB discloses that Shasha the clown gave her a spanking in the magic room when her pants were off (Ex. 56, 3/38) and his clothes were off (Ex. 56, 3/46). Also intermingled in these allegations was that Shasha did something with fire. (Ex. 56, 3/42) Miss Cheryl took pictures of JB while she was in the magic room with her clothes off. (Ex. 56, B-53) "Karen" also took pictures of JB when the clown was sticking the thermometer in her pee pee and/or bum bum. (Ex. 56, 3/54) Miss Cheryl put a thermometer in her pee pee and bum bum. (Ex. 56, 3/55) Also Tooky was spanking Miss Cheryl in the magic room. (Ex. 56, 3/55)

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Kelley, following up on her earlier strategy, utilized all of the aforementioned suggestive interviewing techniques once again at this second session. For example:

Between the time of her initial disclosure and the time she testified at trial, she participated in over thirty-five group therapy sessions with AJ. (Ex. 2A-23-57) From January, 1985 until July, 1985, these sessions were on a weekly basis. During therapy, JB and AJ played with anatomical dolls and often discussed what happened at FADS. (Ex. 2A-23-57)

In February, 1985, according to Mother, JB told her that Miss Cheryl took pictures of them without their clothes on and that Miss Cheryl had put pencils and thermometers in their bum-bum and pee-pee.

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