|Fells Acres Day School||
A little over three years ago, Judge Robert Barton, one of Massachusetts' more competent criminal judges, set aside the child molestation convictions of Violet Amirault and her daughter, Cheryl Amirault LeFave. The women had already spent nearly eight years in prison when Barton declared "One more hour or even one more minute in custody on this case would be improper" and freed the women pending retrial. No bail required!
In one of the twists the criminal justice system seems to take, within minutes Barton ordered LeFave returned to jail to serve a separate 90-day sentence for a prison fight, which but for her having been wrongly tried and imprisoned, would not or could not have occurred.
Barton had reversed the convictions of the women on the grounds that they had not been allowed to confront the alleged child victims, i.e., to encounter them, literally, face to face. Despite the constitutional protection, the assistant district attorney had been allowed to use a special seating arrangement while questioning the children: they sat with their backs to the defendants but facing the jury.
Unhappy with Barton's ruling, the prosecution appealed . . . in a morally questionable effort to keep Amirault, LeFave, and Amirault's son, Gerald "Tooky" Amirault in prison. The district attorney had not been DA when the mother, daughter, and son were convicted for sexually molesting about 40 children in 1987, but he was the DA who was going to try to run for Attorney General when the Attorney General ran for governor. Ah, politics!
Almost a year and a half later, at the end of Winter 1997, the Massachusetts Supreme Judicial Court spoke: it upheld the three defendants' child-rape convictions. The defendants' constitutional right under the state constitution to confront their accusers was denied!
Although allowing the children to testify with their backs to the defendants was unconstitutional, the court held, the error did not require new trials . . . and , anyway, the defendants didn't raise the issue soon enough. So, ultimately, the SJC found, no substantial miscarriage of justice arose from the unlawful procedure.
The decision brought civil libertarians and prosecutors figuratively mano to mano again: civil libertarians, outraged, invoked the infamous Salem witch trials, and prosecutors, buoyed by self-righteousness, celebrated.
Almost immediately, Amirault and LeFave's counsel sought the SJC to reverse their convictions, but he remained pessimistic. He feared that it was likely that the women would have to complete their eight- to twenty-year sentences.
Fate would have it that the mother, Violet Amirault, died during the Fall of 1997, at the age of 74, before she learned what the highest court of her Commonwealth would do.
What it did, first, was acknowledge both that the trial was constitutionally flawed and that the only evidence produced at trial -- the children's testimony -- was "quite improbable," and then, egregiously, hold that "finality" was more important than honoring the state and federal constitutions: that is, that it was more important to get the case "over with" than to dispense justice in accordance with our constitutions.
Then, just this past Spring, in June 1998, a superior court judge agreed with the findings of new research about children's courtroom behavior, and declared that the prosecutors' suggestive and leading interview techniques made it impossible to tell if the children had been telling the truth. He then, courageously, precluded the children from being allowed to testify again.
"Their testimony has been forever rendered unreliable," Judge Isaac Borenstein said.
And again the prosecutors appealed a superior court judge's ruling.
"Without the children, there is no case, and that is what is outrageous about this ruling," the prosecutor allegedly moaned.
While all the charges against the deceased elder Amirault were dismissed, and the ruling in favor of her daughter, Cheryl, was being appealed, the son and brother, Gerald Amirault, who was tried and convicted separately in 1986, remains in prison.
There were two tragedies, Judge Borenstein said. The sacrifice of the rights of the accused and the "inability to ever know accurately and reliably whether the children were ever abused."