Conference quark::mennotes

263.0. "Journal on Amirault case" by JAMIN::GOBLE () Wed Mar 26 1997 13:19

The Wall Street Journal

Friday, March 21, 1997

JUSTICE AND THE PROSECUTOR

By Dorothy Rabinowitz

--------------------------

  The expert advising the
  parents on pedophilia
  at Breezy Point was an
  unemployed plumber, un-
  known to the FBI, whose
  past experience consisted
  mainly of jobs in heating
  and refrigeration.

---------------------------

  In April 1989, investigators began look-
ing into charges that appalling acts of sex
abuse had been committed against chil-
dren at the Breezy Point Day School in
Bucks County, Pa. -- only the latest in the
steady eruption of sensational molestation
charges brought against day care centers
in the 1980s. By the time the Breezy Point
story had begun, Violet Amirault and her
two children, Gerald and Cheryl -- propri-
etors of the Fells Acres School in Malden,
Mass. -- had long been convicted and im-
presoned, on the basis of accusations ob-
tained by the prosecutors' appointed ex-
perts in child abuse. By this time too,
Grant Snowden of Miani was making his
way through the Florida prison system af-
ter State Attorney Janet Reno's office
prosecuted him on similarly extracted al-
legations. Charged with assaulting chil-
dren for whom his wife baby-sat, the Dade
County police officer had been sentenced
to five life terms.

  The new target of allegations was a 35-
year-old teacher who had two children
and, also, a husband employed by a pub-
lishing house -- which fact the accusing
parents would view as substantiation of
their charges that the family was engaged
in nefarious undertakings. The teacher's
problems began some eight months after
she began working at the school, with a re-
port of a complaint that she had violated a
four-year-old girl by penetrating her vagi-
nally with a cream: specifically, the alle-
fation had it, a "cinnamon cream."

  In the days that followed, events pro-
ceeded in a way that had become routine
after such accusations. Child welfare
agents questioned other children -- who
denied that they had been touched or
abused in any way. A few months more,
nonetheless -- months of questioning by
their parents, a caseworker, and a psy-
chologist working for Bucks County Chil-
dren and Youth Services -- brought forth
two more four-year-old girls now saying
they had also been abused vaginally with
cream.

  As usual, too, there were far more in-
teresting charges to come, and an enlang-
ing number of molesters. As parents of the
three alleged victims held more meet-
ings -- with one another, the caseworker
and the psychologist -- there soon devel-
oped an entirely new list of accusations.
The four-year-olds, it was reported, now
said they had been beaten by the teacher
and her aide, locked in cages, and made to
ingest feces and urine and to watch rabbits
being salughtered while the teacher held
the animals' beating hearts. They had,
furthermore, been abducted to various ho-
tels to take part in group sexual activities,
and had seen the teacher cut and stab
other students. They had been raped by
the teacher's husband and her two chil-
dren, been photographed nude by the
teacher's husband and been forced to set
fires and to bury animals.

  By now, the investigation was in the hands
of Bucks County District Attorney Alan
Rubenstein, who saw the possibilities of a
spectacular case involving sex and child
victims. Mr. Rubenstein had taken over at the
request of the Northhampton police while the
allegations were still in the assault-by-cream
stage. While still looking into these charges,
for which he could find no evidence, there came
the new ones -- rapidly multiplying communiques
from parents reporting rape, mutilation, stabbing
and the rest supposedly committed by the Breezy
Point schoolteacher, her 68-year-old female aide
and other conspirators.

"I LIKE Breezy Point"

  All of which was quite enough for the
district attorney, who had already viewed
with interest a video tape made by the
mother who first reported her child had
been assaulted. In it, the mother presses
her laughing four-year-old to tell what hap-
pened, for which the child receives lavish
praise and assurances that these terrible
things would never happen again and that
she would be taken to a much nicer school.
But, the girl objects, "I LIKE Breezy Point."
The child has been raped, beaten, abused
and terrorized, Mr. Rubenstein noted --
and she LIKED going to this school?

  Confronting a mounting tide of accu-
sations, and parents' demands that the
teachers be arrested, the district attor-
ney ordered an inquiry into the merits of
every allegation -- no small take. In the
course of this extraordinary investiga-
tion, Mr. Rubenstein had his detectives
sweep all the areas in which the children
had supposedly been abused. They gath-
ered hair samples, groveled in the school
sandbox for remains of mutilated ani-
mals and checked the accused's car and
house, and hotels and rooming houses
near and far where children said they
had been attacked. They investigated the
secret rooms identified as sites of abuse
and demonic rituals, which children had
described in vivid detail, including in one
case a large working fireplace.

  Faced with glaring discrepancies be-
tween the children's descriptions and the
actual layout, parents argued that the
school owners had removed the fireplace
and remodeled the room to avoid detec-
tion. There was no such evidence of re-
modeling, the district attorney in turn re-
ported. He had every child at the school
questioned separately; no child corrobo-
rated any of the charges, or could tell
about anything bad that happened at the
school. When one of the accusing children
told of certain identifying marks on the
teacher's body, Mr. Rubenstein asked the
women -- now in a state of advanced tor-
ment -- for photos and an examination. No
such marks were evident -- which fact, the
complaining parent charged, only meant
that the teacher had taken care to have
them surgically removed. There was no
evidence of any such surgical removal,
District Attorney Rubenstein observed.
Not least, he had the complainant chil-
dren examined for physical evidence of
abuse -- of which doctors found none. The
findings, the district attorney reported,
were clearly inconsistent with charges of
forcible rapes against children. False
claims that a pediatrician had found evi-
dence of abuse, Mr. Rubenstein pointedly
noted, had been accepted at face value by
Children and Youth Services and their
consulting psychologist.

  In the midst of it all, ther arrived an
expert -- as so often in these cases -- recom-
mended as having special capacities in
dealing with child sex abuse. Dade County
prosecutors had the Bragas, Joseph and
Laurie, represented as psychologists. In
Massachusetts, then-District Attorney
Scott Harshbarger had nurse Susan Kel-
ley, whose expertise was amply illustrated
in interrogations in which she pleaded
with children to tell about the bad things
that had happened at Fells Acres, the way
all their little friends had. In Bucks
County, parents enlisted the aid of one
James Stillwell, who had developed some-
thing of a following as a consultant and
president of an organization entitled the
National Agency Against the Organized
Exploitation of Children Inc.

  This expert how couseling the par-
ents examined their children's drawings
and shared his conclusions with the con-
sulting psychologist for Children and
Youth Services -- that there was a pe-
dophile preying on children at Breezy
Point. Introduced as an investagator ex-
perienced in child abuse cases who had
worked with the FBI, Mr. Stillwell soon
came to the attention of the Bucks
County district attorney, who ran a
check on his credentials. The results
were instructive: The expert advising
the parents on pedophilia at Breezy
Point was an unemployed plumber, un-
known to the FBI, whose past experience
consisted mainly of jobs in heating and
refrigeration. In due course the president
of the National Agency Against the Or-
ganized Exploitation of Children Inc.
would offer his services to the district at-
torney.

  "I'll call you," Mr. Rubenstein informed
him, "when my refrigerator light burns
out."

  When Mr. Stillwell claimed that a pro-
motional video tape put out by the Breezy
Point school revealed acts or perversion,
the district attorney issued a statement de-
nouncing him as a quack. He further ad-
vised the parents' consultant, who oper-
ated from Maryland, that he would arrest
him for fraud if he set foot in Bucks
County. In the meantime, Mr. Ruben-
stein's investigation continued. So, too,
did calls from the parents, looking for an
arrest. One wanted to know if the district
attorney had drained the pond to look for
bodies of children. There were no missing
children. Mr. Rubenstein told the father:
20 children walked into the school, 20 chil-
dren walked out. Eight years later, his de-
tectives still go around mordantly asking
one another if they've drained the pond
yet.

  The nearly year-long investigation into
events at Breezy Point finally came to a
close with the district attorney's an-
nouncement that the charges were base-
less. So ended what had seemed at first a
spectacular case to a prosecutor as ambi-
tious as any: as ambitious, say, as District
Attorney Scott Harshbarger of Massachu-
setts, who had brought the case against
the Amirault family, or Dade County State
Attorney Janet Reno, whose office prose-
cuted Grant Snowden. In District Attorney
Rubenstein, the workings of ambition
were of a crucially different order -- the
sort that required a prosecutor to ask, first
of all, whether there was any truth to the
charges against the accused.  The accused
in this case -- who could never again bring
herself to work as a teacher -- began efforts
to return to a normal life. The accusers
ended up paying teacher and school an
undisclosed sum in settlement of a
defamation suit.

  How easily all this might have gone oth-
erwise, had these allegations been made,
say, to the office of Scott Harshbarger, is
clear enough in the fate that befell the
Amirault family of Massachusetts. Violet,
Gerald and Cheryl Amirault, too, were al-
leged to have tortured children in secret
rooms and committed fantastic crimes in-
volving a bad clown, mutilated small ani-
mals, stabbed children, nude pictures and
the rest -- all as in the Breezy Point
case. An investigator could search the length
of the case Mr. Harshbarger and prosecutors
brought against the Amiraults without finding
any reference to matters like lack of evi-
dence, and findings "inconsistent with forcible
rape" such as filled the pages or Mr. Ruben-
stein's Breezy Hill report. The same can be
said of Janet Reno's prosecutors, otherwise
busy unearthing new charges of abuse till
they succeeded in their effort to confict
Grant Snowden.

  In place of evidence, prosecutors had
gone to trial in these cases armed with ex-
planations about dark skills and match-
lessly clever wiles: talents that had al-
legedly enabled Gerald Amirault, for in-
stance, to rape a child with a butcher knife,
as one complaint had it, without leaving
marks. After the Breezy Point case, the
Bucks County district attorney made
strong objection to the reappointment of
the County Youth Services psychologist, on
grounds that he had endorsed baseless
charges of abuse. Such experts were not in
short supply -- as was evident in the Ami-
raults' trials, where numerous authorities
appeared to offer their testimony to the ab-
surd, among them the pediatrician who
supported the butcher knife story.

  No experts, to be sure, did more to pre-
pare the way for conviction fo the innocent
than those interviewers who conducted in-
terrogations of four- and five-year-olds. In
the Snowden case, no child had a single
word to say about sexual abuse, till the
prosecutor's expert Laurie Braga put the
words in the child's mouth. In the Amirault
case, the interrogator similarly pleaded
and cajoled children who initially had
nothing to say, until they finally yeilded.
Someday, in some more rational time,
members of the public can gather to hear
public readings of these bizarre inter-
views -- in which adults offer police
badges, gifts and trips to McDonald's, if
children will "help" by telling.

Servant of the Law

  It was on the basis of testimony ob-
tained just in this way, of course, that Ger-
ald Amirault and Grant Snowden were
convicted and fated to be locked in prison,
by now for 11 years. There their prosecu-
tors are determined to keep them. In 1935,
Supreme Court Justice George Sutherland
held that a prosecutor is not an ordinary party
to a controversy, whose interest is to win a
case, but a servant of the law, whose interest
is "that justice shall be done." This precept
perhaps comes as news to presecutors now
working so assiduously to preserve their
convictions in these child abuse cases.

  Within the next few months, the Supreme
Judicial Count of Massachusetts will rule
on Gerald Amirault's appeal. The court will
decide, at the same time, whether to uphold
Violet and Cheryl Amirault's reversal of
conviction -- or whether, as the state is
bending every effort to assure, the women are
returned to prison. While that state automat-
cally moves to strike his appeal brief, Grant
Snowden in turn awaits that judgment of the
U.S. Circuit Court in Atlanta.

		------

  Ms. Rabinowitz is a member of the Journal's
editorial board.

The Boston Globe
Monday, March 31, 1997

SJC Ruling Draws Judge's Portrait

  By Kevin Cullen
  GLOBE STAFF



  In 50 pages of legal opinion that quoted
Shakespeare and the Bible, Justice
Charles Fried last week seemed to fulfill
the predictions both of those who rued the
day he joined the Supreme Court
and those who said he raised the esteemed
count's standards.

  Fried's opinion, which reinstated the
convictions of Violet Amirault and her
daughter and son in the Fells Acres day-
care center sexual abuse case, found that
the investigation was flawed and the Amir-
aults were denied their constitutional right
to confront their child accusers face to
face.

  Fried's conclusion -- that despite the
flaws, the Amiraults were not entitled to a
new trial because their lawyers didn't
press the confrontation issue at trial or in
initial appeal, and because society's de-
mand for finality in the case outweighed
their demand for a new trial -- galled civil
libertarians even as it had those in law en-
forcement looking skyward and mouthing
the words "Thank you," in the belief that,
finally, the state's highest court had dis-
played a modicum of common sense.

  Perhaps most stinging to the
Amiraults and their growing cadre
of supporters was Fried's conclusion
that, after reviewing the evidence, he
and five of the seven other justices
believed them to be guilty. Justice
Francis P. O'Connor's lone dissent,
remarkable for a judge not known
for siding with defendant's rights,
stood out all the more.

  "A substantial risk of a miscar-
riage of justice has been estab-
lished," O'Connor wrote. "Our desire
for finality should not eclipse our
concern that in our courts justice not
miscarry."

  The majority opinion -- brash,
quirky, literate, controversial and in
many ways unprecedented -- has
been described, both positively and
negatively, as a mix of views that has
also described its author. It has
some legal practitioners suggesting
that Fried has, at least in the area of
criminal procedure, arrived as the
high court's intellectual leader. Chief
Justice Herbert P. Wilkins, who
must retire in three years, seems
willing, many lawyers say, to let
Fried, a former US solicitor general
and Harvard Law School professor,
strut his stuff when it comes to de-
fining the rights of criminal defen-
dants and the government that pros-
secutes them.

  This, say Dnaiel P. Leonard, the
Boston lawyer who is representing
O.J. Simpson, has a growing number
of attorneys worried that the SJC in
the Fried era will be far more result-
oriented than the court that labored
for more than a decade under the
stewardship of former chief justice
Paul J. Liacos, an avowed defender
of individual rights over the govern-
ment.

  And it has led some lawyers who
supported Fried during his tumultu-
out confirmation process two years
ago to second-guess themselves.

  "I made an awful mistake in sup-
porting Charles Fried," said Harvey
Silverglate, a Boston lawyer who
prides himself on defending civil li-
berties. "A lot of us supported him
because he's good on the First
Amendment. We thought he'd
appreciate liberty issues in general.
But under Fried's leadership, the
court has begun to elevate institu-
tional imperative over substantial
justice."

  Silverglate and other critics say
that as William Rehnquist led the
US Supreme Court to become less
activist and less likely to second-
guess lower courts, Fried is steering
the state's highest court away from
correcting mistakes made in lower
courts.

  "Fried, like Rehnquist says, 'So-
ciety must have finality.' I ask,
why?" says Silverglate. "No legal
system benefits from having inno-
cent people incarcerated."

  But Middlesex District Attorney
Thomas F. Reilly speaks for many
prosecutors and police when he sug-
gests that what defense lawyers and
civil libertarians are really complain-
ing about is that, for years, they had
the upper hand in cases like the
Amiraults', in which those convicted
of crimes repeatedly appeal and seek
new trials, wearing the system, and
witnesses, down. What Reilly sees is
not a giant swing toward the govern-
ment, but a swing to the middle.

  "Should things have been done
differently here -- the investigation,
the trial? Yes. Did it make a differ-
ence in the verdict? No. That's what
the court said," Reilly said. "Some
people are focusing on Justice Fried.
The margin was 6 to 1. This isn't just
Justice Fried. This is the whole
court taking a leadership position,
saying that some new trials are
needed, but many are not."

  For more than a decade, the SJC
has been praised by legal scholars
and practitioners alike as one of the
cutting-edge courts in the nation,
taking up the initiative surrendered
at the federal level as the US su-
preme Court became more literal
and conservative in its interpretation
of the US Constitution.

  The Declaration of Rights, Mass-
achusetts' constitution, has long
been interpreted to offer individuals
more protection than the federal
constitution. But some lawyers say
the Amirault decision and others
authored by Fried show that protec-
tion is being eroded.

  Now in its 305th year, the SJC
was created, in part, to end the kind
of kargaroo courts that presided
over the Salem witch trials. Some
critics, however, say Fried's opinion
in the Fells Acres case did the very
thing that SJC was supposed to
avoid: justice by hysteria.

  Margaret A. Burnham, a Boston
defense lawyer, compared Fried's
opinion to the Salem witch trials, in
which emotional popular opinion, not
objective legal opinion, prevailed.

  "The Amirault decision takes us
back to a time I thought we grew out
of -- that all rules are to be put aside
when it comes to prosecuting child
sexual abuse. It shows a result-ori-
ented mode," said Burnham.

  Burnham said Fried accom-
plished a similar result earlier this
month when he uphelp the convic-
tion of a defendant who had said his
appearing in court in shackles had
denied him the right to due process.
Fried ruled there was no evidence
the jury had noticed the shackles, or
that it affected the outcome.

  "Those two cases are indicative
of Fried," said Burnham. "He has a
strong ideological bent which puts
the guarantees of the constitution in
jeopardy."

  Last year, civil libertarians, and
the outgoing Liacos, protested when
Fried wrote an opinion sayig a
state trooper acted properly by
opening the door of a stranded mo-
torist's car and arresting the driver
for being intoxicated. Liacos sug-
gested that condoning such intru-
sions "will encourage police to fabri-
cate stories."

  Police and prosecutors, however,
have long bristled at what they con-
sider outrageously unfair assump-
tions, like those of Liacos, who was
widely disparaged by police for his
strongly liberal views.

  Reilly, meanwile, takes un-
brage at the suggestion the Amir-
aults were convicted on anything but
conclusive evidence. He winces when
he reads editorials, letters to the edi-
tor and -- worse, he says -- news sto-
ries suggesting there was no phys-
ical evidence that secual abuse oc-
curred. Some of the victims had
genital scarring, Reilly remembers
watching the videotape of children
acting out what they said happened
to them.

  "Children that age can't make
that up," said Reilly.

  Reilly contends the court did
what any ordinary person would
after reading the trial transcript or,
as two juries did, after sitting
through the evicence: find the Amir-
aults guilty. And yet Rielly, like
many prosecutors, sees the legacy of
Fried's decision going well beyond
Fells Acres.

  The Wall Street Journal, which
has made the release of the Amir-
aults a crusade, concluded long ago
the Amiraults had significant claims.
The newspaper was indignant over
Fried's decision, saying only in
Massachusetts "are charges that
have been made under suggestive
and leading questioning to be consid-
ered reliable."

  Reilly said that despite what crit-
ics are saying, the SJC is doing its
job independently, unconcerned with
public outcry.

  "The most encouraging thing
about this decision is that is shows,
in this state, a person's guilt or inno-
cence is decided by judges and ju-
ries, not by editorial writers for The
Wall Street Journal," said Reilly.

The Boston Globe
Monday, March 31, 1997

  By Mathew Taylor
  GLOBE STAFF

California Group Plans Rally,
     Calls Decision 'Disgraceful'


  Ridiculing the recent ruling
by the state's Supreme Judicial
Court as a "body blow to justice
in Massachusetts," a California
group has planned a demonstra-
tion next week in support of Vio-
let and Cheryl Amirault.

  The San Diego based National
Justice Committee Inc. is gearing
up for a rally, to be held April 6 at
an undetermined location in Bos-
ton or Cambridge, in order to
show its support for the mother
and daughter whose child abuse
convictions -- overturned in 1995 --
were reinstated on March 25.

  In a letter addressed to
"Friends of Justice," executive di-
rector Carol Lamb Hopkins
wrote: "This disgraceful decision
has devastated the Amirault fam-
ily. We must protest loudly, and
we must be heard."

  The committee is also calling
on Amirault suporters to write
Governor William F. Weld, re-
questing amnesty for the pair. In
addition, a 24-hour vigil is
planned, beginning April 7, which
Hopkins says will center on "non-
violent civil disobediance if au-
thorities attempt to take Cheryl
and Vi back to prison."

  Hopkins' letter of March 28
also called for donations, which
whould help pruchase a newspaper
advertisement, as well as defray
the cost of hotel rooms for those
participating in the vigil.

  In addition, the letter calls for
local activists to meet on April 7,
in order to outline future support
for the Amiraults.

    The really unfortunate thing about cases like this and others relating
    to child sexual abuse is that as more baseless and questionable cases
    get prosecuted, the believability becomes less.  A lot fo this falls
    into the same category as the persecution of Clarence Thomas - the
    facts don't matter.  The nature of the charges are what's important.
    
    Child sexual assault and abuse should be capital offenses, but they
    must be investigated in detail and the so-called "experts" need to be
    held accountable for their actions.  There have been several instances
    where an "expert" has been shown to be leading a child to say things
    that were not true, just because the case was really juicy.
    
    this doesn't just deal with a person's guilt or innocense, but their
    entire life and reputation.  In cases like this, no matter what the
    outcome, a person's life has been destroyed.