The Pursuit Of Justice, Continued
WSJ commentary  10-7-99

By Dorothy Rabinowitz:

a member of the Journal's editorial board.

When the Supreme Judicial Court of Massachusetts issued its Aug. 18
decision reinstating the convictions in the Fells Acres Day School case,
many people believed--and many also hoped, no doubt--that this case
would fade quietly away. As it turns out there has been nothing quiet
about the reaction to the decision and to the court that made it.

"The supreme judicial court of Massachusetts last week could have ended
perhaps the commonwealth's worst miscarriage of justice since the Sacco
and Vanzetti trial of the 1920's," the Christian Science Monitor
declared in an editorial. This was, the Monitor noted, "the second time
in two years the court refused to correct . . . a prosecution that
should never have been brought," a case built on testimony from children
who were bribed and badgered until they said they were abused. The
Boston Globe had its say, which was that the court had "moved sensibly"
toward finality, and that the juries had after all believed the
children. The state's third-largest paper, the Worcester Telegram &
Gazette, took quite the opposite view.

But it was the opinion of the Massachusetts Lawyers Weekly that became a
news story in itself with its September editorial on the Supreme
Judicial Court's latest decision in the Amirault case.

There was good reason for the interest in this story, carried on the
wires and the airwaves and in the Boston papers. Never before in the
27-year history of the weekly had it taken direct issue or sharply
criticized any ruling by the state's highest court. What the editors
confronted, editor Paul J. Martinek explained last week, was a decision
that reflected shamefully on the Massachusetts judicial system of which
he and his colleagues had always been proud. The justices, he averred,
had put themselves--and the system--"in the position of being willing to
close their eyes to injustice."

The editorial, titled “Travesty Of Justice,” declared: “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.”

And further: “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. . . . 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 editorial board vote in favor of running the piece was, Mr. Martinek
says, “overwhelming”—and it cut across the ideological spectrum. He
could not say he or his colleagues knew for certain what had happened at
Fells Acres, but he did know that the same sort of notorious cases as
had been brought against the Amiraults—prosecuted the same way, on the
same kind of evidence—had been overturned everywhere in the country.
“Everywhere,” says the editor, “but here. In the cradle of liberty.”

Among others now making their views on the Amirault prosecution known is
Harvard Law Prof. Charles Ogletree—the sole member of that eminent
institution’s otherwise much-quoted faculty prepared to offer an opinion
on the extraordinary issues raised by this unavoidably noticeable case
reeking and smoldering in the neighborhood.

“I could not sit back and watch this anymore,” says Mr. Ogletree, who
has now joined the Amirault defense team.

Back in Wenatchee, Wash., others have been watching the Amirault case as
well. On Sept. 22, Superior Court Judge Wallis Friel delivered his
findings on the questions a Washington State appeals court had appointed
him to look into. These had to do with imprisoned farm worker Manuel
Hidalgo Rodriguez, convicted in the Wenatchee sex-ring prosecutions—and
whether the state had improperly influenced the testimony of the girls
who had accused him. As to whether Mr. Rodriguez would be convicted in
a new trial, Judge Friel said this was unlikely, given what was now
known about the methods of interrogation used on the children.

In his decision, the judge took special note of the case of Commonwealth
v. Amirault in the Supreme Judicial Court of Massachusetts—in
particular, the presentation of research on the suggestibility of
children, and the recognition since the late 1980s of the impact of
child interviewers asking repeated, leading questions. This testimony in
Amirault case, the judge found, was in the same vein as his own findings
in the case of Manuel Hidalgo Rodriguez. The testimony, which Judge
Friel found lent “great significance” to the violation of due process,
was, of course, the very research the Supreme Judicial Court had
rejected as nothing new in its latest decision.

Judge Friel—who had by now plowed through the details of two of these
prosecutions, as directed by the appellate court—did not trouble to
conceal a rational mind’s response to what he had found there. In his
decision on the key case of Harold and Idella Everett (the biological
parents of the two girls who were the accusers and the state’s star
witnesses), the judge reflected on one of the child-services
professionals who had cited the well-accepted theory that children
subjected to sex abuse did not disclose secrets.

“This,” the judge mused, “raises the question whether group sex
involving 30 to 60 adults, carried on for more than 6 years at several
locations in 2 counties on an almost daily basis, qualifies as a
secret.”

Judge Friel’s decision in the Rodriguez case now goes back to the
appellate court for final action. With these findings, Mr. Rodriguez has
reason to be optimistic about the chances for a reversal of conviction.

In Massachusetts, there isn’t much optimism about Gerald Amirault, now
beginning the 14th year of a 30- to 40-year sentence. In Massachusetts
as in Wenatchee, and in most prosecutions like them, the weight of the
heaviest sentence fell on the man—automatically assigned the role of
chief predator. The prosecutors who built these cases understood that
scenarios with a man as the central offender were more familiar than
those that presented women as cold-blooded rapists in the lead of a
conspiracy to assault toddlers.

Especially the kind of women accused in these prosecutions: nursery
school teachers—young mothers, middle aged matrons, elderly
grandmothers.

In the Little Rascals day-care case in Edenton, N.C., the man assigned
this role was Robert Kelly. Two weeks ago prosecutors announced they
were dropping the last of the sex-abuse charges against Mr. Kelly,
former owner of the day-care center. This final ending of one of the
more conspicuous day care cases, hasn’t made any news to speak of. It
began in 1989--a saga complete with the usual multiplying numbers of
child victims said to have been molested, nonstop scandal coverage, the
establishment of a large insurance-paid fund for the pain and suffering
of the supposed victims’ families. When he was convicted in 1992, Mr.
Kelly was sentenced to 12 consecutive life terms. His conviction was
overturned three years later. Miami police officer Grant Snowden, whose
conviction was thrown out in 1998 after he had served 11 years, had been
sentenced to a more lenient five life terms.

Both can consider themselves more fortunate than Gerald Amirault, who in
the prosecutors’ scenario lurked everywhere—in secret rooms and behind
closed doors, attired in a clown suit, while his mother and sister
committed crimes of their own, and everyone had a camera. The former
lead prosecutor in this case, Lawrence Hardoon has told of a moment of
epiphany in which it was revealed to him that the Amiraults were all
involved in pornography. Clearly, prosecutors of these cases around the
country—numerous of which involved the camera, picture-taking theme—must
have had similar epiphanies.

The next chapter in this story is unclear—as is the final resolution.
What is clear is that, no small thanks to the action of the Supreme
Judicial Court, the Amiraults’ prosecution and that court’s performance
are now objects of hard and increasing scrutiny, with no finality in
sight.