Dear Friend of Justice,
We attended the forum this afternoon on the Fells Acres case at the Harvard Law School. The panel was moderated by Professor Charles Ogletree. Speakers included Pulitzer Prize-winning author Dorothy Rabinowitz; former Massachusetts Attorney General James Shannon (1987-1991); former Massachusetts Superior Court Judge Robert A. Barton; Patricia Amirault; Cheryl Amirault LeFave; and attorney James Sultan. Attorney Harvey Silverglate later joined the panel.
Ms. Rabinowitz is also the author of an important new book about the Fells Acres case (and other injustices), No Cruler Tyrannies.
Ms. Rabinowitz explained that she first got involved in these cases via the Kelly Michaels case in New Jersey. As she looked into the case, she noticed that something was very strange. All sorts of bizarre violations of time and space were alleged. She interviewed the prosecutor, and discovered that he felt that the most damning evidence was the fact that Michael’s supposedly didn’t wear underpants under her jeans. The transcript of the case was closed, and Rabinowitz soon learned the prohibited nature of the whole affair. One couldn’t even ask questions about it. All of the elements of the other cases can be found in Michaels. In reference to Fells Acres, she said that the Massachusetts Supreme Judicial Court simply refused to acknowledge "the evidence of their eyes and the evidence of all of society."
In response to Ogletree’s question, "What went wrong?", Attorney General Shannon replied, "Everything went wrong." Shannon said that as Attorney General he became more acutely aware of what prosecutors can do. Shannon emphasized the dangers of proceeding without good evidence. Too many prosecutors abdicate their responsibility to present solid evidence with the excuse that it’s for the jury to decide. As a result, many people are indicted, prosecuted, and convicted for things they did not do. While applauding the victims-rights movement, Shannon stressed that the rights of victims do not trump all other responsibilities.
Shannon also spoke about a case that had been brought to his attention while he was Attorney General. He sent people to investigate and when he was satisfied that there was no real evidence – got the matter dropped.
[Note: this case occurred on Cape Cod and is generally not well known. But Shannon earned the wrath of the rabid child-savers for quashing the prosecution. In 1992, Calvalcade productions made a video called "Ritual Abuse." The consultant was Bennett Braun. The narrator was Mike Farrell, an airhead actor who used to be on M.A.S.H. The Cape Cod case was presented and Shannon was blasted for his role in stopping it.]
Robert Barton recalled the lunchtime discussion among judges during the Fells Acres trials. He was alarmed about the bringing in of children’s furniture, children’s chairs. Etc. He did not think that child witnesses should be placed on a pedestal. He also felt that the seating arrangements during the Fells Acres trials were a blatant violation of the state Constitution, which explicitly calls for " face to face" confrontation. He lamented the retirement of Paul Liacos from the Supreme Judicial Court and the subsequent appointment of Charles Fried, who wrote the "finality" opinion rejecting the Amirault new-trial motion. Barton asked, "How can anyone say that finality is more important than due process or a fair trial?"
Barton also revealed that when he recused himself from the Amirault case, he personally made the decision to have the case go to Judge Borenstein. Barton also revealed that he was the trial judge during both trials of Dennis Maher, the Lowell man exonerated this week by DNA evidence.
Cheryl LeFave explained that her mother, who had worked in daycare when she was young, started the Fells Acres school with six children after she became a single parent. The school prospered for over 20 years and Violet was taking the first steps towards retirement when the troubles started. She said that the accusations, "broke our hearts and tore the community apart." But Cheryl stressed that while life changed for her, "We are survivors, we are strong people."
Patti Amirault said that in 1984 she was a second-grade schoolteacher who had no experience dealing with the law or courts. When her husband was arrested, the first lawyer she called was F. Lee Bailey. "Everything was gone in a matter of seconds that day," she said. They immediately lost all of their income. On two separate occasions people shot into her house. One bullet whizzed by her ear and the other landed over baby P.J.’s crib. (Patti proudly added that P.J. had just been accepted into college.) Patti expressed her frustration that they could not get a legal remedy.
Patti said that she was honest with the kids from the beginning. She felt that her training in child development and her experience as a teacher was very helpful. And she made sure that her children from the beginning were very involved with their father.
Attorney Sultan said that when he got involved in the case he read the transcripts and the discovery materials. From the discovery materials especially, it was obvious that the children had been coached – pushed and pushed and pushed. He said it was very frustrating to him as a lawyer that the Supreme Judicial Court was adamant in their determination to deny relief in this case. He said that they have been shot down over and over again. There should be a remedy there. He said the handling of the Fells Acres case was a "terrible indictment of the system."
When asked about the handling of the case by various Massachusetts governors, he said he felt their general approach has been, "How is this going to help me or hurt me in political terms?" She said he had been very hopeful that Cellucci would have done the right thing. But he felt that Swift had been afraid to do anything because of the Catholic Church scandal.
Barton spoke a bit about general problems with the criminal-justice system. He said that some judges are "Company people"– especially ex-prosecutors. He mentioned problems with eyewitness identification. [About 80% of the people freed by the Innocence Project were victims of faulty eyewitness identification.] But he felt the biggest weakness was the Grand Jury system, which returns far too many indictments. He feels that Grand Juries should be run by impartial people – perhaps ex-judges – rather than by District Attorneys.
Attorney Harvey Silverglate mentioned that Rabinowitz’s book was going to be reviewed by the New York Times this Sunday, and urged people to read the review. Harvey talked about the social pathology of the daycare cases, and that there was a kind of panic, a kind of contagion. He lamented that Massachusetts was the one state that has refused to overturn these convictions. He said that Fried’s decision didn’t face the question of innocence or guilt. It just sloughed off the realities. Harvey said that he felt that the people who brought these cases should themselves be prosecuted – perhaps legally, but at least morally. Since prosecutors are by no means universally stupid, he said that there had to be some bad faith among at least some of the prosecutors. He mentioned the Bernard Baran case. The Berkshire County prosecutors have now been stonewalling discovery for three years.
Harvey said that in the discussion thus far, he had noted a reluctance of people to place moral blame. Cheryl at one point, for example, had said that she didn’t blame anyone. Harvey asked why that was.
Cheryl said that she refuses to place blame because she’s afraid of crippling herself as a person. She said she was grateful to people like Harvey who were willing to voice these feelings for them. But she felt she could not – it would just be too psychologically damaging.
Patti Amirault, on the other hand, said she blames a lot of people. She blames the police investigators; she blames Susan Kelley; she blames the prosecutors; and she blames a justice system that won’t acknowledge injustice. She doesn’t blame the families, because they too were puppets of the people in charge. While some of the families made a lot of money, most of them were just swept up in the hysteria.
At this point the panel ended and questions were taken from the audience.
In response to a question, Attorney General Shannon said that the state Attorney General does have the authority to take a case away from a local prosecutor, But this is rarely done and usually only happens in cases where there is a clear conflict of interest.
Another audience member felt that social workers should be psychologically screened, because many of them are predisposed to validate rape or sexual abuse because of their own histories. Patti Amirault said she did not know Susan Kelley’s history, but she was certainly predisposed to validate abuse and that was very evident from Kelley’s own writings. Perhaps more important, said Patti, one of the jurors in her husband’s trial had been a rape victim, and she had lied under oath about this when questioned as a prospective juror.
Phil McGonagle, Patti's father, asked why this alone hadn’t been grounds for a mistrial. Sultan explained that the trial judge (Elizabeth Dolan) insisted that her being a rape victim had no effect on the verdict. The Supreme Judicial Court backed her up. He also said that the prosecutors had brought in a witness who was a postal inspector who told the jury frightening tales on international rings of child pornographers. There was, of course, no evidence whatsoever supporting a link between the Amirault family and child pornographers. A worldwide search lasting years turned up no photographs of any of the Fells Acres children. Nevertheless, the Supreme Judicial Court refused to throw out the verdict. In Sultan’s words, "the SJC was determined to affirm these convictions." The honorable exception was the now deceased Paul Liacos.
Harvey Silverglate said it was amazing to him that there has been no accountability in these cases and that no licenses have been pulled.
Judge Barton said that Scott Harshbarger was so proud of these convictions that he used to run educational seminars on how to prosecute these cases. He said one of the nastiest letters he’d ever received came from Harshbarger shortly after Barton granted the Amirault women a new-trial motion. Barton said that Harshbarger takes these cases very personally and has used them as political stepping stones.
Dorothy Rabinowitz pointed out that these cases were very ideologically driven.
Attorney general Shannon said that even the most hard-nosed person looking at the Fells Acres case would have to admit that there was at least cause for grave doubt. He said that Fried’s decision in the case, "was the most cold-blooded judicial decision that I have ever read." And that the Fells Acres case was "one of the worst injustices in American history."