COMMONWEALTH OF MASSACHUSETTS

 

SUPREME JUDICIAL COURT

 

 

MIDDLESEX, SS. 1999 SITTING

 

NO. 7529

_________________________

 

COMMONWEALTH OF MASSACHUSETTS,

Appellant

 

v.

 

CHERYL AMIRAULT LeFAVE,

Defendant/Appellee

_________________________

 

 

ON APPEAL FROM ORDER OF THE SUPERIOR COURT

ALLOWING DEFENDANT'S

THIRD MOTION FOR NEW TRIAL

 

_________________________

 

BRIEF OF THE DEFENDANT/APPELLEE

AND SUPPLEMENTAL APPENDIX

_________________________

 

James L. Sultan, BBO #488400

Charles W. Rankin, BBO #411780

Catherine J. Hinton,BBO #630179

Rankin & Sultan

One Commercial Wharf North

2nd Floor

Boston, MA 02110

(617) 720-0011

 

Daniel R. Williams,Pro Hac Vice

Thornton & Tanenhaus

521 Fifth Avenue, 27th Floor

New York, NY 10175

(212) 883-1200

 

Of Counsel:

Daniel Finneran

Harvey A. Silverglate

April 1999

TABLE OF CONTENTS

 

 

TABLE OF AUTHORITIES vi

 

ISSUES PRESENTED 1

 

PRIOR PROCEEDINGS 2

 

STATEMENT OF THE FACTS 5

 

I. Relevant Facts Concerning The Suggestive Questioning of The Child-witnesses. 5

 

    1. The Initial Allegation by MC 5
    2.  

    3. The Course of the Biased Investigation. 7
    4.  

    5. The Questioning of the Four Child-Witnesses. 8

 

    1. Suggestive questioning of JO. 8
    2.  

    3. Suggestive questioning of JB. 12
    4.  

    5. Suggestive questioning of MT. 16
    6.  

    7. Suggestive questioning of BL. 21

 

II. Relevant Facts Concerning The Lack of Any Independent Evidence of Abuse. 27

 

    1. The Lack of Physical or Behavioral Symptoms Providing Independent Evidence of Abuse 27

 

    1. JO's alleged symptoms. 28
    2.  

    3. JB's alleged symptoms. 28
    4.  

    5. MT's alleged symptoms. 30
    6.  

    7. BL's alleged symptoms. 32

 

    1. The Lack of Any Other Independent Evidence of Abuse 33

     

    III. Relevant Facts Concerning the Scientific Evidence. 34

     

  1. Scientific Evidence Presented Before and During Trial. 34

 

    1. Expert testimony presented pretrial. 34
    2.  

    3. Expert testimony presented at trial. 37

 

    1. The Scientific Evidence Presented in Support of the Motion for New Trial. 38

 

    1. Maggie Bruck, Ph.D. 38
    2.  

    3. Diane Schetky, M.D. 47

 

IV. The Motion Judge's Findings of Fact and Rulings of Law on the Motion for New Trial. 47

 

SUMMARY OF THE ARGUMENT 49

 

ARGUMENT 50

 

INTRODUCTION 50

 

    1. THE MOTION JUDGE PROPERLY DETERMINED THAT THE SCIENTIFIC EVIDENCE PRESENTED BY THE DEFENDANT IS NEWLY-DISCOVERED. 55

 

    1. Summary of Applicable Legal Standards. 55
    2.  

    3. The Evidence is Newly-Discovered. 57
    4.  

      II. THE MOTION JUDGE PROPERLY GRANTED THE DEFENDANT A NEW TRIAL BECAUSE THE NEWLY-DISCOVERED EVIDENCE DEMONSTRATES THAT THE TESTIMONY OF THE FOUR CHILD-WITNESSES WAS UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED. 62

       

    5. Summary of Applicable Law. 62

 

 

    1. Newly-discovered evidence that supports a motion to exclude trial evidence may warrant the granting of a new trial. 62
    2.  

    3. Unreliable evidence, including tainted testimony of child-witnesses, must be excluded. 63
    4.  

    5. The applicable procedure for determining whether child-witness testimony has been rendered unreliable. 69

 

    1. Application of Law to Facts. 71

 

    1. The testimony of the four child-witnesses was unreliable and should have been excluded. 71

 

    1. The defendant proved that the child-witnesses were subjected to overly-suggestive interviewing procedures which rendered their testimony unreliable. 71
    2.  

    3. The Commonwealth utterly failed to demonstrate independent evidence of abuse. 75

 

    1. The defendant is entitled to a new trial because the exclusion of the child-witness testimony would have created a substantial likelihood of acquittal. 78

 

 

III. ALTERNATIVELY, THE MOTION JUDGE PROPERLY GRANTED THE DEFENDANT A NEW TRIAL BECAUSE, EVEN IF THE TRIAL TESTIMONY OF THE CHILD-WITNESSES WERE NOT EXCLUDED, PRESENTING THE NEWLY-DISCOVERED SCIENTIFIC EVIDENCE TO THE JURY WOULD HAVE PRODUCED, AT THE VERY LEAST, A SUBSTANTIAL LIKELIHOOD OF ACQUITTAL. 78

 

    1. Summary of Applicable Law. 78
    2.  

    3. Application of Law to Facts. 79
    4.  

      IV. THE MOTION JUDGE PROPERLY DETERMINED THAT THE NEWLY-DISCOVERED SCIENTIFIC EVIDENCE PRESENTED BY THE DEFENDANT IS ADMISSIBLE. 81

       

    5. The New Evidence Meets the Threshold Test of Admissibility Under Frye and/or Lanigan (II). 81

 

    1. Summary of Applicable Law. 81
    2.  

    3. Application of Law to Facts. 82

 

    1. Dr. Bruck's views regarding child suggestibility are widely accepted in the scientific community. 83
    2.  

    3. The Commonwealth's and Amici's attack on Dr. Bruck has no merit. 84
    4.  

    5. Dr. Bruck's expert opinions conclusively meet the relevant threshold standard of admissibility under Frye and/or Lanigan (II). 86

 

    1. The New Evidence is Admissible at a Pretrial Hearing. 87

 

C. The New Evidence is Admissible at Trial. 88

 

    1. Summary of applicable law. 88
    2.  

    3. The defendant would be entitled to present Dr. Bruck's testimony at trial. 90

 

    1. THE MOTION JUDGE PROPERLY DETERMINED THAT THE DEFENDANT'S CLAIMS ARE NOT BARRED BY PRINCIPLES OF WAIVER OR MOOTNESS. 94
    2.  

    3. Waiver. 94
    4.  

    5. Mootness. 98

 

CONCLUSION 100

 

 

 

 

TABLE OF AUTHORITIES

 

 

Cases Page No.

 

Brown v. Mississippi, 297 U.S. 278 (1936) 64

 

 

California v. Pitts, 223 Cal.App.3d 606 (1990) 55

 

 

Commonwealth v. Allen, 40 Mass. App. Ct. 458

rev. denied, 423 Mass. 1104 (1996) 65n., 70n., 82

 

Commonwealth v. Amirault,

424 Mass. 618 (1997) 3, 52n., 91, 92, 98

 

 

Commonwealth v. Amirault, 415 Mass. 112 (1993) 2, 52n.

 

 

Commonwealth v. Bray, 407 Mass. 296 (1990) 70n.

 

Commonwealth v. Callahan, 9 Mass. L. Rptr. 228

1998 WL 808850 (Mass. Super. 1998) 67n.

 

 

Commonwealth v. Campiti, 41 Mass. App. Ct. 43

rev. denied, 423 Mass. 1107 (1996) 63n.

 

 

Commonwealth v. Colin C., 419 Mass. 54 (1994) 66n.

 

 

Commonwealth v. Dockham, 405 Mass. 618 (1989) 88

 

 

Commonwealth v. Federico, 425 Mass. 844 (1997) 88, 90

 

 

Commonwealth v. Fowler, 425 Mass. 819 (1997) 57n.

 

 

Commonwealth v. Freeman, 352 Mass. 556 (1967) 95n.

 

 

Commonwealth v. Gordon, 422 Mass. 816 (1996) 81n.

 

 

Commonwealth v. Grace, 397 Mass. 303 (1986) 56, 63,78

 

 

Commonwealth v. Haley, 413 Mass. 770 (1992) 56

 

 

Commonwealth v. Holland,

410 Mass. 248 (1991) 64,69, 74, 78

 

 

Commonwealth v. Hunter, 416 Mass.831 (1994) 69

 

 

Commonwealth v. Johnson, 420 Mass. 458 (1995) 64, 69

 

 

Commonwealth v. Kater (I), 388 Mass. 519 (1983) 64

 

 

Commonwealth v. Lanigan (II),

419 Mass. 15 (1994) 48, 64, 65, 81, 86, 87

 

Commonwealth v. LeFave, 407 Mass. 927 (1990) 2

 

 

Commonwealth v. Martin, 427 Mass. 816 (1998) 56

 

 

Commonwealth v. Meggs, 30 Mass. App. Ct. 111 (1991) 56

 

 

Commonwealth v. Montanino, 409 Mass. 500 (1991) 88

 

 

Commonwealth v. Osorno, 30 Mass. App. Ct. 327

rev. denied, 410 Mass. 1101 (1991) 63n.

 

 

Commonwealth v. Pare, 43 Mass. App. Ct. 566 (1997)

aff'd, 427 Mass. 427 (1998) 82

 

 

Commonwealth v. Ramirez, 416 Mass. 41 (1993) 62

 

 

Commonwealth v. Rodriguez, 378 Mass. 296 (1979) 65

 

 

Commonwealth v. Salvati, 420 Mass. 499 (1995) 56

 

 

Commonwealth v. Santoli,

424 Mass. 837 (1997) 89, 91, 92n.

 

 

Commonwealth v. Schand, 420 Mass. 783 (1995) 56

 

 

Commonwealth v. Simmons, 417 Mass. 60 (1994) 56

 

 

Commonwealth v. Sneed, 413 Mass. 387 (1992) 93n.

 

 

Commonwealth v. Tavares, 385 Mass. 140

cert. denied, 457 U.S. 1137 (1982) 65

 

 

Commonwealth v. Tucceri, 412 Mass. 401 (1992) 79

 

 

Commonwealth v. Vao Sok, 425 Mass. 787 (1997) 57n.

 

 

Commonwealth v. Watson, 409 Mass. 110 (1991) 95n.

 

 

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) 81, 82

 

 

Dependency of A.E.P., 956 P.2d 297 (Wash. 1998) 68n.

 

 

Felix v. State, 849 P.2d 220 (Nev. 1993) 66n.

 

 

Fischbach v. State, 676 A.2d 902 (Del. 1995) 68n.

 

 

Fogarty v. Commonwealth, 406 Mass. 103 (1989) 95n.

 

 

Franks v. Delaware, 438 U.S. 154 (1978) 62

 

 

Frye v. United States, 293 F. 1013

(D.C.Cir. 1923) 81n., 86, 87

 

Snowden v. Singletary

135 F.3d 732 (11th Cir. 1998) 54n.

 

 

Idaho v. Wright, 497 U.S. 805 (1990) 66n.

 

 

LaFrance v. Bohlinger, 365 F. Supp. 198

(D. Mass. 1973), aff'd 499 F.2d 29

(1st Cir. 1974), cert. denied,

419 U.S. 1080 (1974) 63, 65, 70, 72

 

 

Manson v. Brathwaite, 432 U.S. 98 (1977) 64

 

 

New Jersey v. Michaels,

625 A.2d 489 54n., 66-69, 78, 81, 82, 87, 91

 

 

People of Territory of Guam v. Ignacio,

10 F.3d 608 (9th Cir. 1993) 66n.

 

 

People v. Alvarez, 607 N.Y.S.2d 573

(Sup. Ct. Richmond County 1993) 68n.

 

 

People v. Michael M., 618 N.Y.S.2d 171

(Sup. Ct. Kings County 1994) 67n.

 

 

People v. Peck, 674 N.E.2d 440 (Ill. App. 1996) 66n.

 

 

People v. Zwart, 600 N.E.2d 1169 (Ill. 1992) 66n.

 

 

Quegan v. Massachusetts Parole Board,

423 Mass. 834 (1996) 99

 

 

Rosenberg v. United States, 346 U.S. 271 (1953) 50

 

 

Sacco v. Roupenian, 409 Mass. 25 (1990) 92

 

 

Simon v. Solomon, 385 Mass. 91 (1982) 92

 

 

State of North Carolina v. Wilson,

118 N.C.App. 616, 456 S.E.2d 870 (1995) 54n.

 

 

State of North Carolina v. Kelly,

118 N.C.App. 589, 456 S.E.2d 861 (1995) 54n.

 

 

State of Washington v. Miller,

1997 WL 328740 (Wash. App. Div. 3)

(unpublished opinion) 54n.

 

 

State v. Carol M.D. and Mark A.D.,

948 P.2d 837 (Wash. App. 1997) 67n.

 

 

State v. D.G., 723 A.2d 588 (N.J. 1999) 66

 

 

State v. Kirschbaum, 535 N.W.2d 462

(Wis. App. 1995), 82n., 89n., 92n.

 

 

State v. Malarney, 617 So.2d 739

(Fla. App. Dist. 1993) 82n., 89n., 92n.

 

 

State v. Sloan, 912 S.W.2d 592

(Mo. App. E.D. 1995) 82n., 89n., 92n.

 

 

Stein v. People of State of New York,

346 U.S. 156 (1953) 64

 

 

United States v. Brien,

59 F.3d 274 (1st Cir.),

cert. denied, 516 U.S. 953 (1995) 89n.

 

 

United States v. Daniels, 64 F.3d 311

(7th Cir. 1995),

cert. denied, 516 U.S. 1063 (1996) 89n.

 

 

United States v. Downing, 753 F.2d 1224

(3rd Cir. 1985) 93, 95

 

 

United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) .91

 

United States v. Harris, 995 F.2d 532

(4th Cir. 1993) 89n.

 

 

United States v. Rincon, 28 F.3d 921

(9th Cir.), cert. denied,

513 U.S. 1029 (1994) 89n.

 

 

United States v. Rouse, 111 F.3d 561, 571

(8th Cir. 1997) 82n., 89n.

 

 

United States v. Smith, 62 F.3d 1073

(8th Cir.), cert. denied

516 U.S. 1098 (1996) 63n.

 

 

Welch v. Keene, 31 Mass. App. Ct. 157

rev. denied, 411 Mass. 1103 (1991) 93

 

 

Wolf v. Commissioner of Public Welfare,

367 Mass. 293 (1975) 99

 

 

 

Statutes, Rules, & Constitutional Provisions Page No.

 

 

Mass. Decl. Of Rights, art. 12 63

 

M.G.L. c. 41, 97D 5n.

 

M.G.L. c. 233, 81 66

M.G.L. c. 265, 24C 5n.

 

Mass. R. Crim. P. 13(d) 69

 

Mass. R. Crim. P. 30(b) 55

 

Mass. R. Crim. P. 30(c)(2) 92

 

U.S. Const., amend. 5 63

 

 

Scientific Literature Page No.

 

Bradley, A., & Wood, J., "How Do Children

Tell? The Disclosure Process in Child Sexual

Abuse," 20 Child Abuse & Neglect 881 (1996) 46n.

 

Maggie Bruck and Stephen Ceci,

Jeopardy in the Courtroom: A Scientific

Analysis of Children's Testimony (1995) 38n., 83

 

Bruck, M., Ceci, S.J., Francoeur, E. &

Barr, R.J., "'I Hardly Cried When I

Got My Shot!': Influencing Children's

Reports About a Visit to Their

Pediatrician," 66 Child Development 193 (1995) 41n.

 

Bruck, M., Ceci, S.J., Francoeur, E., &

Renick, A., "Anatomically Detailed Dolls

Do Not Facilitate Preschoolers' Reports

of a Pediatric Examination Involving

Genital Touch," 1 Journal of Experimental

Psychology: Applied 95 (1995) 43n.

 

Bruck, M., Ceci, S.J., & Franceour, E.,

"Anatomically Detailed Dolls Do Not

Facilitate Preschoolers' Reports of Touching,"

Paper Presented at Society for

Research on Child Development

(Indianapolis, Indiana, March, 1995) 43n.

 

Bruck, M., Ceci, S.J. & Hembroke, H.,

"Children's Reports of Pleasant and

Unpleasant Events" (in press), in

D.Read and S. Lindsay (eds),

Recollections of Trauma: Scientific Research

and Clinical Practice, New York, Plenum Press 45n.

 

Ceci, S.J., Loftus, E.W., Leichtman, M. &

Bruck, M., "The Role of Source

Misattributions in the Creation of False

Belief Among Preschoolers,"

62 International Journal of Clinical

and Experimental Hypnosis 304 (1994) 41n.

 

Ceci,, S.J., Croteau-Huffman, M., Smith, E.

& Loftus, E.W., "Repeatedly Thinking About

Non-Events,"

3 Consciousness & Cognition 388 (1994) 42n.

 

Ceci, S.J., Loftus, E.W., Leichtman, M, &

Bruck, M., "The Role of Source

Misattribution in the Creation of False

Beliefs Among Preschoolers,"

62 International Journal of Clinical

and Experimental Hypnosis 304 (1994) 43n.

 

Ceci & Bruck, "The Suggestibility of the

Child Witness: A Historical Review and

Synthesis,"

113 Psychological Bulletin 403 (1993) 60n., 83-84

 

Ceci, S.J., Loftus, E.F., Leichtman, M &

Bruck, M., "The Possible Role of Source

Misattributions in the Creation of False

Beliefs Among Preschoolers," 62 International

Journal of Clinical and Experimental

Hypnosis 304 (1994) 45n.

 

Ettinger, R.H., Crooks, R.L., & Stein, J,

Psychology: Science, Behavior, and Life,

Fort Worth: Harcourt Brace (1994) 42n.

 

Everson, M. & Boat, B., "Putting the

Anatomical Doll Controversy in Perspective:

An Examination of the Major Uses and

Criticisms of the Dolls in Child

Sexual Abuse Evaluations,"

18 Child Abuse & Neglect 113 (1994)

(cited in Jeopardy, at 183-186) 44n.

 

Friedrich, W., Fisher, J., Broughton, D.,

Houston, M., Shafran, C., "Normative Sexual

Behavior in Children: A contemporary

Sample," 101 Pediatrics 4 (April 1998) 77n.

 

Garven, S., Wood, J.M., Shaw, J.S. &

Malpass, R., More Than Suggestion:

Consequences of the Interviewing Techniques

from the McMartin Preschool Case (1997) 45n.

 

Geiselman, R., Saywitz, K., & Bornstein, G.,

Effects of Cognitive Interviewing,

Practice, and Interview Style on

Children's Recall Performance,

Unpublished Manuscript(1990) 42n.

Goodman, G.S., Wilson, M.E., Hazan, C, &

Reed, R.S., "Children's Testimony Nearly

Four Years After an Event," Paper presented

at Annual Meeting of the

Eastern Psychological Association,

Boston, MA (1989) 42n.

 

Jones, D., & McGraw, J.M., "Reliable and

Fictitious Accounts of Sexual Abuse in

Children," 2 Journal of Interpersonal

Violence 27 (1987) 46n.

 

Lawson, L. & Chaffin, M., "False Negatives

in Sexual Abuse Disclosure Interviews:

Incidence and Influence of Caretaker's Belief

in Abuse in Cases of Accidental Abuse

Discovery by Diagnosis of STD,"

7 Journal of Interpersonal Violence 532 (1992) 46n.

 

Leichtman, M.D. & Ceci, S.J.,

"The Effects of Stereotypes and

Suggestions on Preschoolers' Reports,"

31 Developmental Psychology 568 (1995) 40n.

 

Nathan, D. & Snedeker, M., Satan's Silence:

Ritual Abuse and the Making of a Modern

American Witch Hunt,

(Basic Books: New York, 1995) 55n.

 

Peterson, C & Bell, M, "Children's Memory

for Traumatic Injury,"

67 Child Development 3045 (1996) 41n.

 

Pettit, F., Fegan, M., & Howie, P. Interviewer

Effects on Children's Testimony, Paper

presented at International Congress on

Child Abuse and Neglect,

Hamburg, Germany, September 1990 44n.

 

Poole, D & White, L, "Effects of Question

Repetition on the Eyewitness Testimony

of Children and Adults,"

27 Developmental Psychology 975 (1991) 41n.

 

Poole, D.A., & Lindsay, D.S., "Interviewing

Preschoolers: Effects of Nonsuggestive

Techniques, Parental Coaching and Leading

Questions on Reports of

Nonexperienced Events," 60 Journal of

Experimental Psychology 129 (1995) 43n.

 

Poole, D.A., & Lindsay, D.S., "Effects

of Parents' Suggestions, Interviewing

Techniques, and Age on Young Children's

Event Reports," in D. Read and

S. Lindsay (eds.) Recollections of Trauma:

Scientific Research and Clinical Practice,

New York: Plenum Press (1996) 43n.

 

Poole, D.A., & Lindsay, D.S., "Interviewing

Preschoolers: Effects of Nonsuggestive

Techniques, Parental Coaching and Leading

Questions on Reports of Nonexperienced

Events," 60 Journal of Experimental

Psychology 129 (1995) 45n.

 

Pynoos, R.S., & Nader, K.,"Children's

Memory and Proximity to Violence,"

28 Journal of the American Academy

of Child and Adolescent Psychiatry 236 (1989) 44n.

 

Rawls, J., "How Question Form and Body-Parts

Diagrams Can Affect the Content of Young

Children's Disclosures," in D. Read &

S. Lindsay (eds.) Recollection of Trauma:

Scientific Research and Clinical Practice,

New York: Plenum Press (1996) 44n.

 

Thompson, W., Clarke-Stewart, A, Lepore, S.,

"What Did the Janitor Do? Suggestive Interviewing

and the Accuracy of Children's Accounts,"

21 Law and Human Behavior 405 (1997) 40n.

Tobey, A, & Goodman, G.S., "Children's

Eyewitness Memory: Effects of Participation

and Forensic Context,"

16 Child Abuse & Neglect 779 (1992) 42n.

 

 

Other Authority Page No.

 

The Boston Herald, April 27, 1997 52n.

 

Charlier, Tom, "Methods of Inquiry Pressure

Children," in "Justice Abused: A 1980's

Witch Hunt," The Commercial Appeal

(Memphis, TN), Jan. 1988 54n.

 

Nathan D., "Day Care Witch Trials: One

Acquittal, One Conviction, and a Lot of

Bad Testimony, Village Voice, April 23, 1988 54n.

 

Rodriguez, B. "Juror Says State Botched

Noble Case," El Paso Times, April 10, 1988 54n.

 

Newsweek, February 18, 1985 54n.

 

Humphrey, Hubert, H. III, Report on Scott

County Investigations (State of Minnesota

Attorney General's Office, Feb. 1985) 54n.

 

Rigert, J. et.al., "The Scott County Case/How

it Grew; Why it Died," Minneapolis Star and

Tribune, May 26, 1985 54n.

 

New Braintree, Massachusetts: Commercial Appeal 54n.

 

Reno, Nevada: Commercial Appeal 54n.

 

Bucks County, Pennsylvania: Rubenstein,

Alan M. "Report: Investigation into Breezy

Point Day School," Office of the District

Attorney, Bucks County, PA (March 1990) 55n.

 

Olney, Maryland: Cage, Richard, "Problems in

Multiple Victim Cases," audio recording of

presentation given before the Health Science

Response to Child Maltreatment Conference,

Children's Hospital, San Diego, CA,

Jan. 17-20, 1980 (available as tape # 200-19

from Convention Recorders,

5401 Linda Vista Road, San Diego, CA) 55n.

 

Reinhold, Robert, "2 Acquitted of Child

Molestation in Nations Longest Criminal

Trial," New York Times, Jan. 19, 1990 55n.

 

Mydans, Seth, "For Jurors, Facts Could Not

Be Shifted From Fantasies," New York Times,

Jan. 19, 1990 55n.

 

"McMartin Preschool's Lessons,"

American Bar Association Journal (April 1990) 55n.

 

Timnick, Lois, "Buckey Jury Deadlocks;

Mistrial is Declared," Los Angeles Times,

July 28, 1990 55n.

 

McGraw, Carol, "In the End, Jury Gave in to

Confusion," Los Angeles Times, July 28, 1990 55n.

 

"The Longest Mistrial," Time, August 6, 1990 55n.

 

San Diego, California, Grand Jury Report and

Supplement, 1992, San Diego County Grand Jury;

California v. Hubbard, Cal. Ct. of Appeal,

5th Dist. # F02117 (1995); California v.

Kniffen, Cal. Ct. of Appeal, 5th Dist. # F004423

(1995); California v. Pitts, 223 Cal.App.3d 606

(1990) ("Kern County" cases) 55n.

ISSUES PRESENTED

 

 

  1. Did the motion judge properly determine that the scientific evidence presented by the defendant's motion for new trial was newly-discovered, where traditional research available at the time of trial was useless in assessing the impact of suggestive questioning upon the reliability of preschool children's reports of bodily touching, and the new evidence was based upon a paradigmatic shift in scientific research and ground-breaking studies bearing upon this precise subject?
  2.  

  3. Did the motion judge properly grant the defendant a new trial, where the defendant proved that the child-witnesses were subjected to highly suggestive questioning before any allegations of abuse, the Commonwealth utterly failed to present any independent evidence of abuse, and the newly-discovered scientific evidence demonstrated that the children's testimony was inherently unreliable and should have been excluded?
  4.  

  5. Did the motion judge properly grant the defendant a new trial on the alternative ground that, even if the child-witnesses' trial testimony need not have been excluded, presenting the newly-discovered scientific evidence to the jury at trial would have produced a substantial likelihood of acquittal?
  6.  

  7. Did the motion judge properly determine that the new scientific evidence is admissible, where the expert testimony presented by the defendant is generally-accepted within the relevant scientific community, where the research findings have been widely tested and replicated, and where such evidence would be helpful to the jury in assessing the effects of suggestive questioning techniques?
  8.  

  9. Did the motion judge properly exercise his discretion to consider the merits of defendant's third motion for new trial, where the superior court previously reserved to the defendant the right to raise the issue presented therein at a later time, and the controversy between the defendant and the Commonwealth is not moot?

PRIOR PROCEEDINGS

On January 21, 1985, Cheryl Amirault LeFave was indicted, along with her mother, Violet Amirault, and her brother, Gerald ("Tooky") Amirault, on multiple charges of child sexual abuse alleged to have occurred at the Amirault family's daycare center, the Fells Acres Day School ("FADS") in Malden. LeFave was tried jointly with her mother from June 1 to June 13, 1987 before Judge John Paul Sullivan and a jury./ LeFave was convicted of three counts of rape of a child under the age of sixteen and four counts of indecent assault and battery on a child under the age of fourteen. She was sentenced to a total of eight to twenty years imprisonment./

This Court affirmed LeFave's convictions on direct appeal. Commonwealth v. LeFave, 407 Mass. 927 (1990). In 1992, Judge Sullivan allowed her motion to revise and revoke her sentence, but that order was vacated by this Court. Commonwealth v. Amirault, 415 Mass. 112 (1993).

On April 11, 1995, LeFave filed her first motion for new trial on the grounds that the seating arrangements of the child witnesses at trial violated her state and federal constitutional rights to confront her accusers. Since the trial judge had retired, the case was reassigned to Judge Robert A. Barton. Judge Barton held a conference with counsel on June 2, 1995, at which defense counsel asked to amend the pending new trial motion to add an additional claim for relief based upon newly-discovered scientific evidence demonstrating the unreliability of the Commonwealth's child-witnesses. Judge Barton decided to adjudicate the motion without amendment, but specifically reserved to the defendant the right to present the additional claim at a later time, if necessary. (Supp. App. 10-11)/ Judge Barton allowed the defendant's motion for new trial on August 29, 1995, and entered a bail order releasing her from custody. On March 24, 1997, this Court vacated the order allowing the defendant's motion for new trial. Commonwealth v. Amirault, 424 Mass. 618, 653 (1997).

On April 29, 1997, the defendant filed a second motion for new trial based upon ineffective assistance of appellate counsel for failing to raise the confrontation issue on direct appeal./ On May 9, 1997, Judge Borenstein allowed that motion and entered an order permitting the defendant to remain on bail pending the Commonwealth's appeal. This Court granted the Commonwealth's application for direct appellate review./

On October 16, 1997, LeFave filed her third motion for new trial on grounds of newly-discovered evidence. This Court allowed defendant's motion to stay proceedings on the Commonwealth's pending appeal of the allowance of the second motion for new trial and remanded the third motion for new trial to the Superior Court. Judge Borenstein held an evidentiary hearing on LeFave's third motion for new trial on February 17-18, 1998, at which the defendant presented two expert witnesses, while the Commonwealth elected to call no witnesses. Following the submission of written memoranda and oral argument, Judge Borenstein issued a written decision allowing the defendant's third motion for new trial on June 12, 1998, and the Commonwealth appealed.

 

 

STATEMENT OF FACTS

 

  1. Relevant Facts Concerning The Suggestive Questioning Of The Child-Witnesses.

    1. The Initial Allegation By MC./

The investigation of the Amiraults began with the statement of FADS student MC that his pants had been pulled down at the school./ No investigator ever pursued the undisputed fact, later testified to by MC's teacher, that MC had once wet himself at the school during nap time, and that either Gerald or Cheryl had changed him out of his soiled clothing.(GT 47/94-97) When MC's mother first questioned him about his pants being pulled down, MC stated that "Tooky" did it, and when his mother asked if Tooky "did anything else to you," MC said "no." (GT 49/37) This innocent event eventually led to a massive investigation. Judge Borenstein found that "the circumstances surrounding MC's disclosures are highly questionable," and "created an atmosphere in which MC was extremely vulnerable to suggestive and coercive interviewing techniques."(R. 360)

This finding was accurate. MC's mother enrolled her son in FADS in March 1984. She soon became concerned about sleeping and eating problems, crying, and enuresis. Although these behaviors may well have been associated with various traumatic events in MC's life, including his parents' violent fighting and separation, his mother's psychiatric hospitalization, loss of a pet puppy, and chronic ear infections (GT: 15/34-46; 45/108)(R 696), MC's mother suspected abuse. In April, to prompt a disclosure, she told MC that a man had touched his uncle's penis at a camp when his uncle was a boy and "that if he couldn't tell or talk to mommy or daddy, that he could call his uncle about that." (GT:48/149; 49/9-13) According to a DSS report, the uncle "spoke to MC in regards to sexual abuse" and MC disclosed that Gerald had pulled his pants down. MC "disclosed no further information," and his mother "spent considerable time with her son attempting to obtain further information." (R. 695)/ Finally, after five months of questioning, on September 2, 1984, after being asked to "tell mommy a story" at bedtime, MC told the "story of Tooky," describing various sexual acts.(GT: 14/168) His mother then called an abuse hotline.

B. The Course of the Biased Investigation.

Within days, Gerald Amirault was arrested and FADS was ordered closed. Thereafter, Judge Borenstein found:

[T]he community was thrown into a panic. On September 12, 1984, a public meeting was held at the Malden Police Station to brief parents on the investigation. At the meeting, law enforcement officials made the irreversible and critical mistake of delegating the delicate and important task of interviewing to parents. Parents were in essence "deputized" and told to question their children about a magic room, a secret room and a clown, and not to say anything positive about the Amiraults.(R. 360)

This finding was accurate. The parents' meeting was described by mothers as "chaotic and confusing." (Tr. 4/27)(GT: 19/121, 46/33) Law enforcement officials stoked parents' anxieties by telling them that "'no' doesn't mean 'no'" (GT: 20/30) and instructed parents: "Talk to the children...They kept saying that. Talk to the children." (GT: 18/60) The police instructed parents to focus the questioning on sexual abuse involving a clown, a magic room, and secret room. (GT: 20/11, 114-15) (Tr: 4/24; 5/56) When children eventually provided incoherent and inconsistent accounts of abuse, the universal motifs in their stories unsurprisingly revolved around clowns, a magic room, and a secret room. Judge Borenstein found:

The Amirault family was targeted in this investigation from the outset in a climate of fear and panic chronicled in pervasive and substantial media coverage. Susan Kelley, a pediatric nurse who interviewed all four child witnesses in this case, and law enforcement officials had decided from the start that the Amiraults had committed these crimes. Consequently, investigators chose to ignore the testimony of other teachers and students involved in the case. Shortly thereafter, several children, including the four child witnesses who testified in this case, were subjected to multiple, suggestive interviews with parents, Department of Social Services ("DSS") workers, police officers and other law enforcement officials. All of the child witnesses initially - and quite amazingly - withstood the barrage; they all denied any abuse. Eventually - and now we understand predictably - they were broken down....

 

(R. 361) The record demonstrates the accuracy of these findings, as described in detail below.

C. The Questioning of the Four Child-Witnesses.

 

    1. Suggestive questioning of JO.
    2. JO was subjected to enormous pressure to allege abuse before she alleged abuse. Judge Borenstein found:

      JO was subjected to multiple coercive and suggestive interviews. The record is replete with instances of improper interviewing techniques which seriously undermine the reliability of her disclosures including, but not limited to, repetitive questioning, the interviewer's persistent refusal to accept "no" for an answer, peer pressure, pretending, interviewer bias and use of leading questions. In addition to suggestive interviews, the record indicates a strong likelihood that JO was subjected to parental pressure to disclose... Allegations made by JO against the defendant...were made only after the suggestive and coercive interviews. (R. 366)

    These findings were amply supported by the record. JO was born in October 1980 and attended FADS from April, 1981 to August, 1984. (R. 796) JO's mother attended the September 12 parents meeting, where she heard the police say: "God forbid you say anything good about [the Amiraults] or your children will never tell you anything." (Tr: 5/56) After attending the police meeting, JO's mother asked her about FADS. JO reported that her friend Abigail had touched her vagina, but denied this later. (R. 796) Investigative notes state that the father was "more confrontive [sic]" than the mother in the manner of questioning. (R.800) JO told her father that there was a "spooky" magic room in the basement, and that Tooky had asked her to take her pants down, but then she said he was only fooling. (R. 796) JO's father was agitated over the slow pace of the investigation, and her mother "wanted DSS and police to follow thru [sic] with interviewing JO to get any info needed so they [the Amiraults] won't get off." (R. 805) JO's father was so agitated that police expressed concern that he might "harm the alleged perpetrator."(R. 817)

    On October 4, the police and DSS interviewed JO, who said she didn't know about a magic room. In a later interview, JO said that Cheryl showed her bum, and that JO "hit Cheryl's bum and hit it again and she was dead." (R. 803) She told a DSS interviewer that Tooky touched her vagina one time, but when a police officer joined the interview she "denied again." (R. 804) The DSS interview records described JO as being "reticent" on the topic of sexual abuse, so the investigators had to "encourage" her to discuss it. (R. 801) One DSS report stated that "JO was not volunteering" information about "bad guys" at the school, so the police officer had to ask her directly. (R. 802) Investigators ignored JO's observation that Violet and Gerald "love[d] us." (R. 795)

    On October 12, JO told her mother that Tooky put a key in her vagina, Cheryl showed her bum, Cheryl pulled JO's pants down, and "Robert" slapped her face. (R. 799) JO later told investigators that a teacher named Ann Marie tried to intervene while Gerald was touching her vagina. (R. 798) She described an incident where another child was dropped on her head while someone grabbed her vagina. (R. 805) JO claimed that abuse in the magic room took place while "all [her] friends were there." (R. 798) On November 7, evaluator Susan Meyer noted: "JO steadfastly denied, during the evaluation, that she was sexually abused," but Meyer nonetheless concluded that JO had been abused based upon observing her play.(R. 795) When JO was interviewed by Susan Kelley in December 1984, Kelley used a wide range of improper interviewing techniques. Kelley invoked the theme of "helping" JO and the other children. (R. 1002, 1010, 1013) Kelley stated: "Oh, MT told me all about her teachers, too. Would you want me to, to tell me? No? Why?" (R. 1005) Kelley asked leading and repetitive questions such as asking if JO had ever seen a clown before. When JO answered that she had seen a clown at a circus, Kelley asked: "Did any clown ever visit you at Fells Acres?" JO answered: "No." Rather than accept that answer, Kelley asked the same question twice more.(R.1007) Kelley engaged in repetitive questioning regarding sexual contact. (R. 1011, 1021, 1023-24) JO told Kelley that she saw a penis on her father and another man unrelated to FADS. Kelley never followed up on these answers, but when JO denied seeing a penis on any FADS personnel, Kelley persisted in questioning her. (R. 1027-1030)

    Kelley also used anatomical dolls and drawings, focusing on nudity and "special body parts." (R. 1005) Kelley invited speculation and imagining: "Let's pretend this little girl doll is at Fells Acres, okay." (R. 1008) Kelley indicated that the doll, represented as a "little girl," is "sad." (R. 1007) Kelley then asked a series of leading questions about whether anyone touched the "little girl's" vagina, and asked: "What would happen if someone touched her vagina? Would she be sad?" (R. 1008) Kelley then shifted the focus onto JO, asking leading questions concerning whether anyone had touched JO's vagina. Kelley used a negative emotional tone, insisting that JO was "scared to talk." (R. 1011, 1024, 1033) Despite all of these suggestive techniques, JO made no allegation of sexual abuse.

    In February 1985, six months after first being subjected to suggestive questioning, JO alleged for the first time that Cheryl had sexually abused her. JO told her mother that she had to kiss Tooky's penis and kiss Vi and Cheryl on their vaginas. (Tr: 5/26-27)

    JO did not testify at Gerald Amirault's trial. At Cheryl's trial, JO testified that Violet, Cheryl, and Gerald would retrieve her from her class "once a day," after naptime and take her to the magic room. She would ask her teachers for permission to leave the classroom. In the magic room, she would have to touch Cheryl's bum while Tooky took pictures. (Tr: 5/152-159) When she returned from the magic room after having been molested, her teachers would ask her, "How was it?" and she would say, "all right." (Tr: 3/151, 175-82, 196)

    2. Suggestive questioning of JB.

    JB was also subjected to highly suggestive questioning before she made any allegation of sexual abuse. As Judge Borenstein found (R. 382-383):

    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 [not] been enrolled at FADS for more than one and a half years, and it was only after she was subjected to highly suggestive interviews that JB 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 who attended FADS, AJ, but who did not testify at the defendant's trial. Investigators were well aware of these influences....[but] chose to ignore that information, because it did not serve their preconceived ideas of what had happened to JB....[A]ny disclosure that did not implicate this defendant or members of her family was bypassed in favor of pursuing only those that did....

    JB's allegations against the defendant...were made only after suggestive, coercive interviews and all the other influences were brought to bear on this child....[E]very 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.

     

    These findings were completely justified. JB was born in November 1978 and attended FADS from August 1982 until June 1983. (Tr: 4/72, 3/7) When her parents first started questioning her in September 1984, JB had been away from FADS for over 15 months. In response to reading a newspaper article about FADS, JB's mother contacted the police, who instructed her to ask JB about a magic room, a secret room, and a clown. (Tr: 3/9-10) When questioned between September and December, JB denied abuse.

    JB's mother and the mother of AJ, another little girl at FADS, frequently babysat for each other's children. (GT: 22/12-13) Therapy notes indicate that AJ's mother had once walked in on AJ being molested by a retarded brother-in-law. (R. 652) JB's close relationship with AJ clearly led to contamination. Beginning in early 1985, JB engaged in months of play therapy together with AJ. (R. 662-688)/ At one point, JB described how she and AJ wondered aloud together what happened at FADS.(R. 899) AJ's allegations were patently unreliable, as AJ accused prosecution investigator Susan Kelley herself of abuse and then later said she was only "fooling" when she attributed abuse to a clown. (M.Tr. 1/94-95, 201-202) Yet AJ's unreliability did not deter investigators in crediting JB's allegations, which mirrored AJ's. Both children claimed that teacher Ann Marie was involved in the abuse, yet this teacher began working at FADS after both these children left the school. (Tr: 3/14) JB was exposed to media reports about FADS. She stated prior to any allegation: "On the news we see day care and its all closed up....'Cause the people were bad." (R.918)

    JB denied that she had been abused at FADS when first interviewed by Susan Kelley on December 28, 1984. Kelley quickly attempted to induce an allegation through the use of AJ. Kelley told JB that AJ was a "big help," and that JB -- if she wants to be a "good" girl like AJ -- should "help" also. (R. 885) Kelley used AJ to feed JB with suggestive information:

     

    AJ told me about the clown; that's why I'm going to ask you a few more questions about the clown, okay? Because AJ told me everything and now I want you to tell me too, okay? Because it's best that you both tell me. Could you tell me about if the clown ever take his clothes off in any way? (R. 890)

    Kelley introduced the topic of fear:

    AJ told me that there was a time that you and AJ were in the room with the clown by yourselves in the magic room,...[and] something happened that you were scared and she was scared, too.(R. 889)

    Kelley did not hesitate to contradict JB when her statements conflicted with AJ's alleged statements. For example, Kelley contradicted JB's denial of knowledge with: "[AJ] said you were there." (R. 895) When JB accused AJ of lying, Kelley sided with AJ, stating: "I really believed [AJ] because she told me all about it."(R. 896) When JB denied that she had ever heard of the magic room, Kelley stated: "That's funny, because AJ told me about the magic room." Significantly, JB asked: "What was it?" (R. 930) Kelley repeatedly ignored JB's answers. After JB specifically denied that AJ had her clothes off, Kelley asked: "So, what did you say to AJ when she had her clothes off at Fells Acre?"(R. 899) Kelley used anatomically detailed dolls and drawings heavily during the interview, and JB was encouraged to pretend, often through puppets. (R. 890-891, 903-905)

    After her interview with Susan Kelley, JB told her mother in the car on her way home that a clown at FADS had spanked her and AJ; put his peepee, pencils, and thermometers in her and AJ's peepees and bumbums; and threatened to kill her if she talked. (GT: 20/115-126) In her second Kelley interview, JB's allegations continued in this vein. JB continued to identify the culprit as a "clown" who spanked her while naked, and used his penis, pencils, and thermometers to penetrate her vagina and anus. (R. 633, 918-919, 929-931) JB did not claim that the clown was one of the Amiraults, but referred to it as "Sha Sha." She claimed that Sha Sha the clown committed this abuse in the magic room at FADS during normal school hours, and that Cheryl told him to "knock it off." (R. 922) She claimed that Cheryl took pictures of naked children and put a thermometer in her peepee and bumbum.(R. 932-936) JB also claimed that Gerald was spanking Cheryl in the magic room, and that he "stuck out his peepee" on eight different occasions, and once peed in front of her. This conduct allegedly took place "in his office." (R. 918-937, 940-947)

    By the time JB became a witness at Gerald's trial, "Sha Sha" the clown had been transformed into Gerald Amirault. JB's curiosity about the magic room ("what was it?") had evolved into certainty about its existence. On cross-examination, JB acknowledged that she had truthfully told Kelley she never heard of the magic room, that her mommy told her about the magic room, and that her mommy told her she had to talk to Kelley about the magic room. (GT: 21/74) JB testified that Tooky was the only bad person at FADS, and that her mother had told her he was bad. (GT 21/56)

    At Cheryl's trial, JB testified that Cheryl and Tooky put pencils and thermometers into her anus and vagina in the magic room and took pictures. (Tr: 4/86-89) She also claimed that her teacher required her and AJ to go up to the magic room with Tooky. (Tr: 4/108-11)

    3. Suggestive questioning of MT.

    MT was subjected to suggestive questioning before she alleged abuse. Judge Borenstein found (R. 404-406):

    ...MT was subjected to even more blatant, coercive and suggestive interviews than any other child witness. Before her first interview with Susan Kelley in November 1984, MT had been interviewed at least eight times by her parents, law enforcement and medical personnel. Although none of these interviews prior to the Kelley interviews were videotaped, the reports from some of these interviews clearly shows that MT was exposed to multiple interviews in which she was the target of a barrage of suggestive and leading questions about what, not if anything, happened at FADS. These interrogations were conducted by individuals who had already decided what had happened to MT. The goal of these investigators was not to learn in a fair manner what, if any, abuse had occurred, rather to convince the child of what they had decided they already knew.... After having been subjected to numerous suggestive interviews and never disclosing abuse, MT began to make disclosures that were incredibly inconsistent....

     

    These findings were fully supported by the record. MT was born in August, 1980 and attended FADS from January 1983 to September 1984. (R. 827) On September 8, 1984, MT's mother questioned her about FADS. MT said she was happy at school, and nothing weird happened there. (GT: 18/41). On September 12, MT's mother attended the parents' meeting at the police station at which the authorities instructed her to question her child "persistently." (GT: 18/60)(Tr:4/14-16) Police told her: "Just because they say no the first time, it doesn't mean that its no. Sometimes no means yes." (Tr: 4/14)

    On September 17, police told MT's mother to ask about a magic room, secret room, and clown, and she told police that she would talk to her daughter to see "if she reveals any positive result." (GT: 19/135) MT's mother's fiancee/ questioned MT, and MT told him that Gerald photographed children dressing up and that Vi had pulled her pants down and hit her. (GT: 18/45) Later, MT told her that Tooky had a magic camera, and that Cheryl had inserted a purple wand into her bottom.(Tr: 2/93) MT repeated these allegations on September 19 during an interview with a psychiatrist, Dr. Renee Brant, the Commonwealth's expert at trial. (Tr: 2/105)

    A police report documenting the police/DSS interview on September 20, 1984, reveals the leading nature of the questioning: MT "refuse[d] to elaborate on [matters concerning FADS] and would have to be led back to the subject...." (R. 849) Anatomical dolls were used during the questioning at that interview. (R. 865) MT stated that a clown hit her and chased her, Miss Vi and Miss Angel hit her, Miss Vi pulled down her pants and spanked her, Al and Tooky punched her, and Al and Tooky had a camera. She also stated that she missed FADS and denied knowledge of a magic room. (GT: 19/144)(R. 864-66)

    On September 24, in her second police-DSS interview, MT described a roving clown at the school who hit FADS children, punching her in the belly outside of the school building, and striking another child on the head with a purple magic wand. (R. 849, 867) The DSS notes clearly demonstrate that leading questions were used. The DSS interviewer asked MT if she ever touched the clown's penis, and if she touched it with her mouth. When MT answered yes to these leading questions, the interviewer asked MT to demonstrate on an anatomical doll how she put her mouth on the clown's penis.(R. 868) During this interview, MT reiterated her earlier claims that a "magic wand" and a thermometer were used to penetrate her "bum and vagina." (R. 869) MT alleged that "Al" was involved in this activity, along with the Amiraults, and that it occurred "every day." (R. 869)

    MT was interviewed twice by Susan Kelley. When Kelley first asked what Tooky did that was bad, MT replied "Nothing really, but he was bad." When asked what kind of bad things he did, MT replied: "Nothing." (R. 1057-1058) She said she never saw Tooky naked; and there was no magic room.(R. 1058) During the second interview, she said she saw the three Amiraults naked, and they touched her vagina.(R. 1015-35)

    During these interviews, Kelley repeatedly implored MT to settle down and answer the questions. (R. 1052-55, 1058, 1062, 1079, 1104) When MT stated "I'm all done talking," Kelley refused to stop the interview, stating: "Oh, well I'm not done now, MT." (R. 1092) Kelley repeatedly attempted to "bribe" MT to talk about FADS. For example, Kelley told MT: "I tell you what, why don't you tell me that [something special] now and then we can play with the jewelry afterwards." (R. 1074) MT told Kelley that she wanted to call the weatherman after she disclosed "something special." (R. 1074-75) Later, Kelley told MT, "We're going to finish our story and then it's jewelry time." (R. 1079) Later still, Kelley promised MT, "We're going to call the weatherman right after you tell me about the clown." (R. 1097) Kelley also told MT that the police were involved(R. 1057), and MT later asked: "Can I have a policeman badge?" (R. 1096)

    Kelley told MT that another child, identified as "K," told her about FADS. (R. 1039) While grabbing at an anatomical doll, MT told Kelley that a bad clown laughed and "made us, right, touch his penis." (R. 1042) When asked where this event took place, MT explained that she and other children were "outside" and people laughed at her and the others, saying "Ha, ha. You're outside naked." When asked who else was there, MT suggested: "How about I say five or six clowns?" (R. 1042-44) When asked the gender of the clown whose penis she touched, MT stated it was a "lady clown." (R. 1043) When repeatedly asked whether the clown touched MT, MT finally responded that he touched her on the foot.(R. 1045) On another occasion, MT told Kelley that abuse took place at her house when she was home alone. (R. 1093) MT also accused a teacher named Miss Angel. (R. 1089) MT exhibited no outward signs of trauma in the interview, remarking: "Well, a matter of fact [sic], we're having fun now." (R. 1079) The "fun" activities included Kelley's invitation to MT that "we can pretend." (R. 1088, 1099)

    Contrary to her statements to Kelley that there was no magic room and that the clowns abused her outdoors, at Gerald Amirault's trial, MT accused Gerald of abuse in the magic room. (GT: 17/61-62) On cross-examination, MT stated that she had lied to Kelley when she told Kelley that the bad clown was a lady. (GT: 17/74).

    At Cheryl's trial, MT testified that Cheryl and Violet placed a purple and white magic wand inside her vagina and anus, and that Tooky took nude photographs of her. (Tr: 2B/7-21) She testified that Cheryl and Violet put their mouths on her vagina and that all of the teachers were bad and did "sex things," except for Miss Ann Marie. (Tr: 2B/15, 61-62)

    4. Suggestive questioning of BL.

    BL was also clearly subjected to suggestive questioning before he made any allegations of abuse. Judge Borenstein found (R. 420-421):

    BL had been subjected to multiple, suggestive interviews for almost five months before he made his first disclosure against the defendant on January 30, 1985. Although evidence of interviewer bias can be found throughout the record, one of the most striking things to this Court is how law enforcement officials and medical personnel were well aware of the enormous amount of parental pressure placed on BL to disclose, yet did not factor that into their assessment of BL's disclosures. The record is replete with examples of how Mother was convinced that BL had been abused and how she would constantly question him about FADS, an inappropriate and dangerous way to determine the truthfulness of what, if anything, had occurred to him. By June, 1985, the frequency and intensity of Mother's questioning reached the point where BL informed his therapist that he was relieved that Mother stopped questioning him about FADS. This is the same parent who in a report to BL's therapist had stated that one of her concerns about her child was his propensity to lie.

     

    Equally disturbing to this Court is the investigators' total disregard for the numerous fantastical allegations contained in BL's reports, such as tales of robots and animal torture and killings. Investigators used only those claims which were useful in building their case against the defendants and discarded those that were not. There is not a single instance in this lengthy record where an investigator questioned the veracity of BL's reports.

     

    The record amply supports these findings. BL was born in April 1978 and attended FADS from March 1982 to September 1984.(Tr: 4/42-43) BL's mother attended the September 12 parent meeting and police later told her to ask her son about a magic room and a clown.(Tr: 4/44, 80) As of October 11, BL had been interviewed three times by law enforcement, yet had made no allegations of abuse.

    DSS notes reveal that BL was quite communicative. He spoke in detail of a "cage under the porch." (R. 748) When asked about "clowns," BL stated that he "saw them at the circus." (R. 750) When asked about picture-taking, BL said that "class pictures" were taken and his picture appeared in the paper when he "graduated" from FADS.(R. 750) When asked about a "secret room," BL stated that it was located at Violet's house and was used for children to change into their swimsuits when they swam in her pool.(R. 750) BL "denied anyone took their clothes off at school and the only 'bothering' was female students who chased [and] tried to kiss him, indicating on the cheek."(R. 750)Investigators characterized the interviews as "without success."(R. 747) Although BL expressed no "nervousness, fear or secrecy," investigators complained that "questions went unanswered." (R. 748)

    Although BL denied abuse, BL's mother wanted him to be evaluated. He began therapy in November 1984 and questioning continued there. The therapy notes indicate that BL "continues to insist that nothing happened to him," but "is worried about animals getting lost, hurt, or killed." (R. 730) On November 13, 1984, BL told the therapist that "16 kids have died from that school [FADS]." (R. 728) He also complained of balls of light chasing him, after which the therapist leadingly asked him if the balls of light were like flashbulbs. (R. 729) The therapy notes also confirm that BL's mother was still active in prompting BL to talk about abuse: "BL came prepared to talk about 'old school,' obviously at his mother's insistence." (R. 730) BL's mother persistently questioned BL, to the point that his therapist noted in May 1985 that he was relieved that his mother had stopped questioning him about FADS. (R. 735)

    BL was again interviewed by law enforcement and DSS on February 1, 1985, after his mother reported that BL disclosed to her that "Miss Cheryl" kissed him all over and stuck objects into his anus, and that he had to engage in oral sex with Violet and Cheryl. (R. 734) BL stated that teachers "threw things including the furniture." (R. 755) BL stated that "Miss Cheryl put a stick up his bum, and that 'it hurt very much.'" (R. 755) BL also stated that a "robot" warned the children to keep quiet about FADS.(R. 756, 758) BL retracted his allegation against Cheryl in this same interview, stating that neither Cheryl nor Tooky anally penetrated him or took pictures.(R. 756) The use of leading questions is indicated by such notes as, "Worker refocused BL by asking him if Miss Vi had done anything else to him." (R. 755); "The words twisting, turning and rubbing [of the penis] were initially provided by [DSS] worker. Later BL incorporated them into his own speech..." (R.756)

    BL's allegations were not limited to the Amiraults; he claimed that "Miss Marie" and "Miss Carol" were also involved in sexual abuse.(R. 758) BL stated that "Miss Cheryl killed a dog by repeatedly striking/cutting the leg of the dog with a knife," that she "threw a bird into a tree until its wings broke," and that a raccoon was hurt or killed.(R. 758) BL claimed that "Cheryl stabbed and killed a dog in front of [children] and told the children that would be them someday if they ever told about the activities at the school."(R. 762) BL accused Violet and Cheryl of "punch[ing] the children with their fists, which left bruises." (R. 759)

    BL was interviewed again by DSS and the police just two days later. The focus of BL's account of abuse during this interview was Violet Amirault's swimming pool. He claimed that Violet brought him to the garage, took down his pants, and spanked him for no reason. After the spanking, "she would put a stick up and into BL's anus," describing this as "very painful." (R. 761-62) BL also stated that Vi and Cheryl photographed him in the garage, and Cheryl and Tooky fondled him. (R. 762)

    On February 15, 1985, Susan Kelley questioned BL. His first remark, upon being asked about FADS, was: "My mother asked me questions." When asked what kind of questions, BL said, "Bad ones." (R. 961) Later in the interview, when Kelley told BL that "no one is going to hurt you," BL responded, "Everybody keeps on telling me that." (R. 980) Kelley used anatomical dolls and drawings to prompt disclosures. (R. 964, 983)

    Kelley did not test BL's allegations concerning the fantastical elements of his story. When BL stated that a "robot" was involved in the sexual abuse conspiracy, Kelley ignored him.(R. 970) BL's disclosures were remarkable for their lurid and bizarre details of animal sacrifices, torture, and killing of children. BL told an elaborate tale of children being "tied up on a tree" with their clothes off by "All the teachers. They took turns everyday." (R. 975) On the subject of "clowns," which Kelley introduced, BL stated he did not know why the clowns were bad. (R. 990) BL identified Cheryl and Tooky as clowns; he also said that Tooky dressed up as a lobster. (R. 994) When asked who killed animals, BL stated, "All the teachers, except Miss Kim and Miss --." (R. 977) When asked to tell Kelley "the story" about killing animals, BL responded "You mean this is a story?" (R. 978) BL's own mother reported that BL had a tendency to "lie" and "make[] up unbelievable stories." (R. 780)

    At Gerald's trial, BL recalled a DSS worker "telling me that there was a clown." (GT: 26/111) He claimed that Vi and Cheryl cut off animals' limbs, that a robot threatened kids, and that all the teachers tied him naked to a tree and killed animals. (GT: 26/116-123)

    At Cheryl's trial, BL alleged that Violet and Cheryl took him to a garage where Violet stuck a stick up his bum, Cheryl put her mouth on his penis, and Tooky took pictures. (Tr: 5/86-87) BL testified that Cheryl hurt and killed animals, including a squirrel, dog, and racoon, in front of all of the kids and all of the teachers, and that the blood of the animals was buried in a sandbox at FADS. (Tr: 5/111-115) BL testified that Cheryl and her mother hurt birds, including a blue bird with a yellow beak, and that they gave him white pills to swallow. (Tr: 5/91,99) BL insisted that Violet tied him naked to a tree outside, in full view of the other children and teachers at FADS. (Tr: 5/117-122) He also testified that there was a grey, square talking robot with wheels who told him four times not to tell his parents what had happened at the school. (Tr: 5/130-32)

    II. Relevant Facts Concerning the Lack of Any Independent Evidence of Abuse.

    A. The Lack of Physical or Behavioral Symptoms Providing Independent Evidence of Abuse.

     

    With regard to the children's alleged physical and behavioral symptoms, Judge Borenstein found:

    Parent's reports which would normally serve to corroborate the testimony of the children, were inconsistent and made only after the investigation was well under way and some of the interviews had taken place; many of these interrogations were conducted by the parents themselves. Parents' memories suddenly surfaced about observations often made months or years before, without ever having been revealed to anyone. Their recall changed in order to conform with their beliefs, fostered by the media frenzy surrounding this investigation, and the influence of law enforcement, that their children had been abused by the Amiraults...

     

    Behavioral symptoms of the children alleged by the parents emerged only as a result of the coercive and suggestive interviewing that took place, other behavioral disorders, discord or changes in the family... None of these symptoms were disclosed until later in the fall of 1984.

     

    Physical evidence in this case is almost non-existent and at most inconclusive on the question of whether these children were sexually abused. With the exception of one child, the minimal amount of physical evidence in this case was reported only months after the allegations surfaced. Even that child had similar physical symptoms before she ever enrolled in FADS; the one physical symptom seen in this child was inconclusive, according to her own doctor and the Commonwealth's witnesses.

     

    (R. 363-364) These findings were accurate, as described in detail below with respect to each child-witness.

     

  1. JO's alleged symptoms.
  2.  

    JO's mother testified at trial that JO was "clingy" had "difficulty sleeping," "was wetting her bed," "refused to go to the bathroom by herself," and "became rebellious and hateful towards her mother." All this behavior occurred after JO left FADS. (Tr: 5/30,62) DSS records show that the behavioral changes occurred only after JO was subjected to coercive interviewing.(R. 802, 805) JO's purported sexualized behavior began after JO's second suggestive investigative interview regarding sexual matters.(Tr: 5/31) In evaluating JO's behavioral difficulties, investigators ignored the facts that JO's father was a violent man with a penchant for illegal drug use and that JO's mother and father fought bitterly. (Tr: 5/40, 46) There was no physical evidence, other than the meaningless finding that JO had mild vulvitis in December, 1984, months after she left FADS. (Tr: 5/39) Vulvitis may occur from rubbing of clothing or irritation from soaps (Tr: 5/26-27), and is "very common" for toddlers. (Tr: 10/17-18)

    2. JB's alleged symptoms.

     

    JB had a chronic problem wetting herself, but it clearly was not associated with FADS. The wetting problem continued up to two years after JB left FADS.(GT: 22/60)(GT: 22/62-64) JB suffered from chronic urinary tract infections, which can account for wetting and vaginal pain, and the infections and associated symptoms continued up to two years after JB left FADS. (GT: 22/54-56, 63-64) (Tr: 3/100-01, 5/51) Urinary tract infections can be caused by poor toileting practices. (Tr: 5/53)

    Over eighteen months after ceasing all contact with FADS, in January 1985, JB was examined by Dr. Emans, who discovered vulvitis, redness around her vulva and labia, cracking and fissuring of her labia, and a hymenal bump.(Tr: 5/24-26) None of these symptoms justify an inference of sexual abuse, as they may arise from a wide variety of causes. (Tr: 5/28, 72-73)(GT: 35/111-12)

    The behavioral symptoms allegedly exhibited by JB were first revealed by her mother to her pediatrician in December 1984, one and one half years after JB left FADS. JB's mother testified at trial that while JB attended FADS, she resorted to infantile behavior, such as engaging in baby talk, had nightmares, and resisted being bathed.(Tr: 3/68-70) According to JB's mother, for about a month in the summer of 1984, JB "would go outside and take all her clothes off, and this would be almost every day, three and four times a day." (GT: 22/78-80) Also, for "a short while," JB "would put her toy telephone receivers, or toys, or brushes between her legs, up near her vagina." (Tr: 3/81) None of this alleged behavior was mentioned to anyone while JB attended FADS, and none of it was remarkable enough to cause JB's mother to mention it when she filled out a behavioral questionnaire at Susan Kelley's request.(GT: 22/62-71)

  3. MT's alleged symptoms.

In June 1981 and February 1982, before she was ever enrolled in FADS, MT was treated for a yeast infection. (Tr: 10/48) On March 1, 1984, MT's mother took her to the hospital, reporting that MT had been complaining of itching and pain for two weeks. (R.847) MT was diagnosed with vaginitis and urinary tract infection and given a prescription for urinary tract and yeast infections. (R.847) Dr. Guthrie testified that he would not conclude, based on her vaginitis, that MT had been sexually abused.(Tr.10/47) No further medical intervention was sought at that time. MT's mother contended at trial that while MT was enrolled at FADS, MT complained every night, from February 1984 until just after FADS closed in September 1984, that her vagina hurt.(Tr. 2B/143-146) Yet, MT's mother failed to mention this condition when she visited her family pediatrician after she attended the September 12 meeting about suspected sexual abuse at FADS.(GT: 19/121) Dr. Guthrie questioned MT's mother in detail about her observations of MT's symptoms (Tr: 10/14-17), yet she told Dr. Guthrie on September 13, 1984 that she detected no symptoms in MT and was not concerned about sexual abuse at FADS. (R. 847) Dr. Guthrie evaluated MT's vaginal area and concluded that everything "appeared normal."(Tr: 10/14-17) Two months later, MT was diagnosed by Dr. Emans with vulvitis (Tr: 5/63), which is "very common" for toddlers. (Tr: 10/17)

MT's mother testified that MT became "clingy" and at times wanted to stay at home. (GT 19/57, 20/9) Mother also testified that MT put her hands between her mother's legs, tried to touch her breasts, and stared at her mother while she dressed, but this was a "very rare" occurrence. (GT: 19/64) None of these purported behaviors were reported to her pediatrician in the fall of 1984, before MT was subjected to suggestive questioning on sexual abuse. Other alleged "signs" of abuse, such as nightmares, fears of being alone, reduced appetite, and bedwetting, which are often associated with childhood, were similarly never mentioned before MT's mother became convinced that her child had been abused. While the mother testified at trial that MT refused to eat, she told her pediatrician, a day after the meeting at the police station, that MT's appetite was "good." (R. 847)

MT's troubled home life may well have contributed to any behavioral difficulties she may have suffered. Her mother suffered from severe emotional problems and drug use, and she had to relinquish custody of MT for a fifteen month period while she spent time in a half-way house. (GT: 20/20-21) The purported clinging and staring behavior by MT occurred shortly after mother and child were re-united. In addition to substance abuse problems, MT's mother had a history of psychiatric illness. (Tr: 4/36) MT was again separated from her mother in March of 1984 because MT's mother underwent surgery. (Tr: 4/45-46) Throughout the investigation, MT made references to her fear of being abandoned by her mother. (R. 865)(GT: 18/46)(Tr: 28/18-19) Investigators never explored the manifest trauma associated with MT's separation from her mother for nearly half of her young life.

4. BL's alleged symptoms.

 

BL showed absolutely no physical evidence of sexual abuse, which, as Dr. Erikson testified, would be expected from having a pointed stick inserted into his rectum. (Tr. 9/38) DSS stated in a report that BL's mother had not noted any changes in behavior while he attended FADS. (GT:27/156)(R.751) In a behavioral symptoms questionnaire given to her by Susan Kelley, BL's mother made no mention of sexualized behavior. (GT: 27/153-55). BL's mother twice acknowledged that all of her son's sexualized and other behaviors started after people started asking him questions about FADS.(GT: 27/79-85, 156-57) She testified that she sent BL to a psychiatrist because of his post-interview behavioral changes. (GT: 27/87) /

BL's home life was in turmoil during 1985, culminating in the psychiatric hospitalization of his mother for a mental breakdown. (GT: 27/92-93, 145-146) BL's father, a member of the Hell's Angels, died in a motorcycle accident in September, 1985. (GT: 27/160-61, 183) How these events may have affected BL's bizarre description of events at FADS was of no apparent interest to investigators.

    1. The Lack of Any Other Independent Evidence of Abuse.
    2. FADS teachers, personnel, and parents testified that FADS was a very open environment, with no locked doors or prohibited areas.(GT: 12/57; 43/176) Teachers, parents, and other adults frequently arrived unannounced. (Tr: 6/4-9, 17-18, 50-56, 69-76, 206-211; 7/61, 66; 8/5-13, 21-26, 34, 38-42, 50-68, 75-78, 80-85; 11/14-17) The child-witnesses described acts of abuse -- many of which were quite bizarre -- that supposedly took place openly and with the approval of the FADS teachers. Yet no FADS teacher corroborated any of these accounts.

    The children gave widely disparate accounts of the so-called magic or secret room, which was described as upstairs, downstairs in the basement, and at Violet's house./ None of the FADS teachers was aware of any such room; none ever lost track of the children; none ever saw anything remotely suggestive of sexual abuse; none ever saw any animals, much less animals being tortured or killed. The testimony from twenty-three FADS personnel uniformly established that no child ever verbalized a complaint of any kind, nor did any child exhibit suspicious behavior. (Tr: 6/88-93, 107, 127-30, 153-54; 7/14-15, 17, 37-41, 53-55, 70-78, 90-108)(GT: 12/52) Although the sexual activities of a clown figured prominently in the case, no evidence of a clown costume or paraphernalia was ever discovered; nor did any FADS personnel ever see any of the Amiraults in a clown costume.(GT:43/121,124-28) Although pornographic picture-taking was alleged, no pornographic photographs of FADS children were ever determined to exist./

    III. Relevant Facts Concerning the Scientific Evidence

  1. Scientific Evidence Presented Before and During Trial.

    1. Expert testimony presented pretrial.
    2.  

    The defendant filed two pretrial Motions to Dismiss or Grant Appropriate Relief, seeking a full evidentiary hearing on the reliability of the child-witnesses based upon the improper interviewing techniques used in the investigation. (R. 117.1-117.100)/ In opposition, the Commonwealth argued that the defendant's claim was based on "an unsupported theory not recognized in the clinical or legal communities." (R. 117.31-117.32) Judge Dolan concluded that before being entitled to a full evidentiary hearing on the reliability of the children's testimony, the defendant must first show general acceptance of the theory of suggestive questioning sufficient to support a finding that "this evidence is so totally unreliable that never ever should it appear before a jury." (M.Tr. 3/14/86, 34)

    At a hearing held on the motion on March 20, 1986, the defense proffered the testimony of Dr. Daniel Schuman, who testified about his "positive reinforcement loop" theory, which states that "the child winds up conforming to the inadvertent expectations of what the child is supposed to say." (M.Tr. 3/20/86, 16) When asked whether this theory was widely recognized, he stated:

    Well, when I first presented [it] in 1984, the presentation evoked a stormy response.... I'd say there's been a change in the recognition of this phenomenon over the last two years so that now its being spoken about more and more.

     

    (M.Tr. 3/20/86, 14) The prosecution cross-examined Dr. Schuman to demonstrate that his opinion was not generally accepted. (M.Tr. 3/20/86, 52-53) The prosecutor asked:

    Can you tell us whether or not there are any other articles at all that you're aware of in psychiatric and psychological literature that deal with the phenomenon as you have described it?

     

    (M.Tr. 3/20/86, 55) Dr. Schuman replied:

    I was not aware at that time and cannot cite to you now specific articles dealing with the concept of positive reinforcement loop as it pertains to the clinical evaluation of children.

     

    (M.Tr. 3/20/86, 57) The prosecutor pressed the point even further, challenging Dr. Schuman to cite

    any specific data, any clinical studies, or clinical laboratory studies, or any literature in general, that unequivocally states or takes the position that positive reinforcement loop or positive feedback loop, to use your terminology, either alters or destroys a child's memory of an emotionally significant event.

     

    (M.Tr. 3/20/86, 63-64) Dr. Schuman could not do so.

    Judge Dolan denied the motion without further evidentiary hearing, agreeing with the Commonwealth that Dr. Schuman's theory had not reached the "level of 'scientific acceptability' within the field," such that the children's testimony should be excluded.(M.Tr. 3/20/86, 107-108)/ The motion was renewed and denied again by Judge Sullivan on May 14, 1987. (R. 117.73)

     

    2. Expert testimony presented at trial.

    At trial, the defense sought to refute the testimony of prosecution expert, Dr. Renee Brant. Dr. Brant testified that a variety of factors "would contribute to a child not disclosing sexual abuse." (Tr: 4/132) Dr. Brant opined that seemingly exculpatory evidence, such as delayed disclosure and recantations, was actually indicative of guilt. (Tr: 4/159)

    The defense called Dr. William Erikson, who never identified any research studies demonstrating the deleterious impact of suggestive questioning on young children. Dr. Erikson opined, without citing any clinical data, that children are significantly influenced by the style of questioning. (Tr:9/30) He critiqued the videotaped interviews by Kelley, identifying particular episodes that "caught [his] eye." (Tr: 9/31-32)

    The defense at trial also called Dr. Sherry Skidmore, who testified that questioning of children should be "nonleading," and critiqued the videotaped Susan Kelley interviews. (Tr: 10/79-81, 110-112) During her testimony, Dr. Skidmore cited no scientific research in support of her opinions.

    On cross-examination, the prosecutor brought out that she had published no research articles supporting her opinions. (Tr: 10/132-34) Dr. Skidmore agreed with the prosecutor that it was not "usual," "normal," or "typical" for children to fantasize about "sticks in their bum" or "pencils [or wands] in their vagina." (Tr: 10/166-167) She stated only that she had seen three cases in her practice in which children had apparently fantasized about abuse where in her "opinion" abuse had not occurred, although "no one can say with certainty that abuse absolutely never occurred for anybody." (Tr: 10/168-170). When asked whether pressuring a child would "most likely cause that child to shut down, as opposed to suddenly make allegations of sexual abuse," Dr. Skidmore replied: "There's a logical hunch that that may be true, but I know of no research study that would support that....I can't quote you any research." (Tr: 10/178-79)

    B. The Scientific Evidence Presented in Support of the Motion for New Trial.

  1. Maggie Bruck, Ph.D.
  2. In support of her motion for new trial on grounds of newly-discovered evidence, the defendant presented the affidavit and testimony of Maggie Bruck, Ph.D./ Dr. Bruck explained why the traditional research on suggestibility available at the time of the defendant's trial was useless in assessing the reliability of reports in large-scale sexual abuse investigations involving multiple interviews of young children. (R. 522-523)(M.Tr.1/54-56) Largely in direct response to disturbing accounts of coercive questioning in mass abuse investigations, researchers such as Dr. Bruck have developed sophisticated new research methods to examine the accuracy of young children's testimony. (M.Tr.1/54-60) The essence of the scientific inquiry is to determine whether, and to what degree, children can be led to allege touching of their bodies by others when, in fact, such events have not taken place.

    Dr. Bruck testified that the new research models represent a "paradigmatic shift" in the research on children's suggestibility, involving three important changes. First, preschool children have been included in many studies. Second, researchers have begun to examine children's suggestibility about events that are personally salient, that involve bodily touching, and/or that involve insinuations of sexual abuse. Third, the scope of "suggestive" techniques under study has been expanded from simply asking a misleading question or planting a piece of misinformation to a large range of devices. (R. 524)(M. Tr. 1/58-60)

    Dr. Bruck described numerous ground-breaking research studies, all conducted since the defendant's trial. Many of these published, validated, peer-reviewed studies were admitted as exhibits at the evidentiary hearing.(M. Ex. 3-18, 23) Dr. Bruck described interviewer bias as the defining feature of many suggestive interviews. She opined that interviewers who hold a priori beliefs may provoke false reports through the use suggestive techniques. (R. 525-526)(M.Tr. 1/60-65)/

    Dr. Bruck described numerous interview techniques that have been scientifically proven through recent research studies to compromise the reliability of children's reports. She described the technique of stereotype induction as giving a child information about the character of a person, which can induce children to conform their reports to the stereotype. (M.Tr. 1/129) / Dr. Bruck opined that the use of leading or forced-choice questions will compromise the reliability of children's reports.(R. 534-536)/ She averred that repeating questions within interviews has an adverse effect on the reliability of children's reports.(R. 536-538)/ She stated that when misleading questions are repeated across multiple or repeated interviews, children's reports become highly tainted.(R. 538-541)/ Dr. Bruck stated that the emotional tone of the interview can cause children to provide false accounts.(M.Tr. 1/244-245)/ She opined that rewarding or punishing children, including telling them they are helpful, can cause their reports to be unreliable.(R. 544-546)/ Dr. Bruck stated that young children are especially likely to comply with the suggestions of interviewers of high status. (R. 546-548)/ Dr. Bruck opined that asking children to imagine an event has deleterious consequences on the accuracy of children's reports.(M.Tr.1/155-156)/ Dr. Bruck testified that the use of anatomically detailed dolls may lead to false reports of bodily touching by young children and can prompt sexualized behavior in young children./ She opined that children often provide inaccurate responses as a result of peer pressure./ Finally, Dr. Bruck testified that when a number of suggestive techniques are combined in one interview, the suggestive procedures have particularly powerful detrimental effects./

    Dr. Bruck opined that children's memory may become distorted by suggestive questioning. She described the problem of "source monitoring," the inability of young children to maintain a distinction between actually experienced events and what the child has learned or imagined from some other source. (M.Tr: 1/172-179)/

    Dr. Bruck also opined, contrary to prosecution expert Renee Brant's testimony at trial, that recent research demonstrates that the majority of sexually abused children maintain their claims, never deny abuse when questioned, and rarely conform to a disclosure pattern of denial-disclosure-recantation, particularly when the abuser is extra-familial./ (R. 514)

    Dr. Bruck summarized the research findings regarding disclosures that result from suggestive interviewing, explaining that preschool children can and do make demonstrably false disclosures regarding personally salient events, including bodily touching, sexualized events, and/or illegal conduct. (R. 565) Dr. Bruck opined, based on recent studies, that suggestive questioning often leads children not only to incorporate the interviewers' suggestions into false narratives, but also to weave fantastic tales that go far beyond the suggestive elements contained within an interview.(R. 566)(M.Tr. 1/275) She observed that children's suggestibility varies according to age, with preschoolers more vulnerable than older children.(R. 565)

    Dr. Bruck cited numerous examples in the record of suggestive techniques being used by investigators with the child-witnesses in this case. She analyzed each of the children's disclosures in detail, based on the law enforcement notes, mental health notes, videotapes, and interview transcripts contained within the record. (R. 515-521, 529-533, 535-539, 542-560, 572-601)(M.Tr.1/76-100, 195-297, 2/4-64) Dr. Bruck concluded (R. 601-602):

    In sum, it is my expert opinion, to a reasonable degree of scientific certainty, based on the relevant research literature and the facts of this case, that the methods used to obtain allegations of abuse from the children in this case render their resulting accusations as unreliable evidence.

     

    2. Diane Schetky, M.D.

    The defendant also presented the testimony of Diane Schetky, M.D., a highly-credentialed psychiatrist who specializes in forensic evaluation of sexually abused children. Dr. Schetky testified that Dr. Bruck's views regarding child suggestibility are held in high regard and widely-accepted among specialists in her field. (M.Tr. 2/267-282)

    IV. The Motion Judge's Findings of Fact and Rulings of Law on the Defendant's Motion for New Trial.

    Judge Borenstein ruled that the research studies forming the basis of Dr. Bruck's testimony are newly-discovered.(R. 436-437) He ruled that the new research is not merely cumulative because it was specifically designed to explain how young children can speak of sexual acts that did not occur. (R. 438) He further ruled that there is a substantial risk that the jury would have reached a different verdict had Dr. Bruck's testimony been admitted at trial. (R. 439) He found that Dr. Bruck's views were reliable under Commonwealth v. Lanigan (II), 419 Mass. 15 (1994), because they have been published, tested, and widely accepted.(R. 444-447) He ruled that her testimony would be admissible to assist jurors in understanding the effects of suggestive interviewing.(R. 444-445) He ruled that the defendant had not waived her claims, nor are they moot. (R. 469-476)

    The motion judge found that holding a pretrial hearing to determine the reliability of evidence is a long-established practice and did not require retroactive application of new law.(R. 447-451) He ruled that the defendant had proved that the four child witnesses who testified against her were subjected to overly suggestive interviews. (R. 451) He ruled that the Commonwealth had failed to satisfy its burden of proving that there was an independent source for the child-witnesses' testimony.(R. 453) Accordingly, he ruled that the child-witness testimony was inherently unreliable and that the defendant was deprived of due process rights by its admission at trial.(R. 458) He ruled that the newly-discovered evidence entitled the defendant to a new trial, concluding that "there is more than a substantial risk that the defendant was unjustly convicted." (R. 346) Finally, he ruled that at a new trial the child witnesses will not be permitted to testify because "their testimony has been rendered forever unreliable." (R.347)

    SUMMARY OF THE ARGUMENT

    The motion judge properly determined that the scientific evidence presented by the defendant was newly-discovered because it was based upon a paradigmatic shift in scientific research and ground-breaking studies conducted after the defendant's trial. (pp. 55-62)

    The motion judge properly granted the defendant a new trial because the newly-discovered scientific evidence, applied to the facts of this case, demonstrates that the child-witnesses' trial testimony was inherently unreliable and should have been excluded. (pp. 62-78)

    The motion judge properly granted the defendant a new trial on the alternative ground that, even if the child-witnesses' trial testimony need not have been excluded, presenting the newly-discovered scientific evidence to the jury at trial would have produced a substantial likelihood of acquittal. (pp. 78-81)

    The motion judge properly determined that the new scientific evidence is admissible because it has been widely-accepted, tested, and replicated, and such evidence would be helpful to the jury. (pp. 81-93)

    The motion judge properly exercised his discretion to consider the defendant's third motion for new trial, which was not barred by principles of waiver or mootness. (pp. 94-100)

     

    ARGUMENT

    INTRODUCTION

    Most of the time, our system of criminal law accomplishes its purpose of convicting the guilty while exonerating the wrongly accused. On occasion, however, the system, like any prone to human frailty and error, fails to work as intended, and a grave miscarriage of justice occurs. In those rare instances, it is incumbent upon the courts to rectify the wrong.

    The tortured history of this case calls to mind the profound explanation of Justice Felix Frankfurter for why he chose to publish a dissent in the Rosenberg atomic-spy case after the defendants had been put to death:

    [H]istory also has its claims. This case is an incident in the long and unending effort to develop and enforce justice according to law. The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled, as illumination for the future. Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain.

     

    Rosenberg v. United States, 346 U.S. 271, 310 (1953). While our system is designed to achieve finality in the adjudication of prosecutions, that necessary objective historically has not been interposed as a rationale for allowing serious injustice to go uncorrected. To that end, our system provides a limited number of procedural mechanisms. The defendant here relies upon one such mechanism - a motion for a new trial based upon newly-discovered scientific evidence.

    The allowance of this motion is important, not only to restore to the defendant her liberty and good name, but also to accomplish the important institutional goal of preserving the integrity and credibility of our system. The conviction of Cheryl Amirault LeFave, born in an atmosphere of widespread hysteria and based solely upon the highly unreliable testimony of toddlers who capitulated to egregiously improper coercive questioning, cries out for corrective action. The motion for new trial, supported by compelling newly-discovered scientific evidence, provides an opportunity for our legal system to rectify a monumental injustice. During the evidentiary hearing, the defendant presented expert testimony and supporting exhibits conclusively demonstrating that the suggestive questioning of the four child-witnesses irreparably tainted their trial testimony, rendering that testimony (which was the only real inculpatory evidence) inherently unreliable. The Commonwealth elected not to contest the defendant's factual showing by presenting countervailing expert testimony or, for that matter, any witnesses at all. Indeed, the Commonwealth wisely conceded, during oral argument, that dangerously improper questioning occurred.

    The motion judge carefully considered the extensive record, including transcripts of the trial and pre-trial hearings; voluminous mental health, social service, police, and medical notes; numerous documentary exhibits; videotaped interviews of the child-witnesses; scholarly articles and scientific studies; pertinent legal authority; lengthy memoranda; and oral argument, before rendering a 140-page, detailed opinion allowing defendant's motion. The motion judge's discomfort with the trial is evident in virtually every page of his findings and conclusions. Judge Borenstein thus joined his two experienced brethren who previously had played a role in the case and who likewise ultimately were moved to express serious misgivings./

    While this Court has reviewed this case on several previous occasions, it has never before had the benefit of the compelling new scientific evidence which is now part of the record. That evidence, revealing the extent to which the Commonwealth's case was irreparably tainted by suggestive questioning of young children, places the case and the resulting convictions in a dramatically new light. This Court is not being asked to take yet one more look at the same record; it has before it new scientific evidence to consider for the very first time.

    The Commonwealth offers the Court a litany of arguments in an effort to reinstate its flawed and tainted conviction. Its first tack is to try to block this Court's consideration of the merits of defendant's claim on altogether procedural grounds. The Commonwealth then endeavors to rewrite the factual record so as to minimize the significance of the newly-discovered scientific evidence. In so doing, it essentially ignores the detailed findings and rulings of the motion judge and urges this Court to give the court below no deference. However, Judge Borenstein's careful examination of the trial record at long last authoritatively demolishes the Commonwealth's oft-repeated but baseless assertion that there was at least some trial evidence independent of suggestive and coercive taint./ There was not a scintilla of such evidence, as Judge Borenstein has now asserted both for this proceeding and for history./ I. THE MOTION JUDGE PROPERLY DETERMINED THAT THE SCIENTIFIC EVIDENCE PRESENTED BY THE DEFENDANT IS NEWLY-DISCOVERED.

  3. Summary of Applicable Legal Standards.

Under Mass. R. Crim. P. 30(b), a judge "may grant a new trial at any time if it appears that justice may not have been done." A defendant seeking a new trial on the ground of newly-discovered evidence must establish both that the evidence is newly-discovered and that it casts "real doubt on the justice of conviction." Commonwealth v. Simmons, 417 Mass. 60, 72 (1994); Commonwealth v. Grace, 397 Mass. 303, 305 (1986). A defendant seeking a new trial based on newly-discovered evidence must demonstrate that the newly-proffered evidence was unknown and not reasonably discoverable at the time of trial through the exercise of reasonable pretrial diligence. Commonwealth v. Salvati, 420 Mass. 499, 507 (1995). Expert testimony based upon scientific evidence developed after trial may be deemed "newly-discovered." Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 114 (1991).

A motion for new trial is "addressed to the sound discretion of the motion judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust...." Commonwealth v. Schand, 420 Mass. 783, 787 (1995). In reviewing the allowance or denial of a motion for new trial, this Court "consider[s] whether a motion judge committed a significant error of law or other abuse of discretion," whether or not the motion judge was also the trial judge. Commonwealth v. Martin, 427 Mass. 816, 817 (1998) (citing Grace, 397 Mass. at 307). Since Judge Borenstein did not preside at trial, this Court must review his decision without the "special" deference accorded the views of a motion judge who was also the trial judge. Commonwealth v. Haley, 413 Mass. 770, 773 (1992). Nonetheless, Judge Borenstein's detailed findings, based upon protracted review of a voluminous record and a two-day evidentiary hearing, are entitled to deference by this Court, and unless manifestly unjust, should be affirmed. /

B. The Evidence is Newly-Discovered.

Judge Borenstein ruled (R. 436-439):

The studies relied upon by Dr. Bruck which form the basis for her expert testimony are newly discovered.... Dr. Bruck's testimony is not simply "in addition to" or "better than" the testimony offered by defense experts at trial in 1987, it is significantly different. The body of research upon which Dr. Bruck relies to support her testimony was conducted in direct response to a number of day care child sex abuse cases across the United States, such as the Fells Acres case. This research was designed to answer the unanswerable question posed by the Commonwealth at trial in 1987, namely: How could children come to speak of disturbing sexual acts if they did not suffer them? Today, in 1998, the defendant has the answer that was nonexistent in 1987; an answer that runs counter to common sense, making all the more critical the importance of the newly discovered evidence. I find that the evidence testified to by Dr. Bruck was not reasonably discoverable by the defendant or her counsel in 1987 and therefore, ...the newly discovered evidence standard is satisfied.

 

This ruling was wholly justified by the evidence. Contrary to the Commonwealth's claim (Comm. Br. 31-36, 50-59), the new scientific evidence presented by the defendant did not exist in 1986 and 1987. Although defense experts then noted coercive questioning which they intuitively found troubling, they could not cite any research data to demonstrate the corrosive impact of such interrogation techniques upon the reliability of young children's reports of bodily touching.

At the hearing on defendant's pretrial motion to dismiss, Dr. Schuman was unable to demonstrate general acceptance of his "positive reinforcement loop" theory or cite any literature to support it. It is true, as the Commonwealth notes, that Judge Dolan's ruling did not go so far as to preclude Dr. Schuman from testifying at trial. The motion judge correctly noted, however, that the Commonwealth's position at the time of the pretrial hearing (noting the lack of any generally-accepted, relevant scientific research studies) was inconsistent with the Commonwealth's current position (claiming that such studies were, in fact, available at that time), and that his inability to cite research devastatingly effected the defendant's ability to defend herself.

The defense experts at trial fared no better. Neither Dr. Erikson nor Dr. Skidmore cited or described any clinical research data in support of their tentative and speculative opinions. The Commonwealth argues that "the jury was given an answer that was more compelling than any review of the literature" when Dr. Erikson and Dr. Skidmore each gave a couple of anecdotes regarding children they had seen who, in their opinion, had fantasized about "sticks in their bum." (Comm. Br. 54) Such anecdotes, however, could hardly substitute for recent, validated laboratory experiments, such as those in which young children suggestively questioned with anatomical dolls made false claims that their pediatrician had touched and/or penetrated their vaginal and anal cavities. (R. 553-554)

The Commonwealth further argues that the evidence presented by Dr. Bruck is not newly-discovered because "studies on the suggestibility of children date back to the turn of the century." (Comm. Br. 55) This contention has no merit. As Dr. Bruck explained (M. Tr. 1/54-60);(R. 524), although some literature on child suggestibility existed before 1990, only a few studies included preschool children. The pre-1990 studies demonstrated only that children could be led to make false reports about neutral events that lacked personal salience. Children in the earlier studies were generally asked leading questions or given one piece of misinformation, rather than being subjected to a larger range of suggestive interviewing devices in multiple interviews such as those in the investigation of this case./

The Commonwealth erroneously argues that the new studies underlying Dr. Bruck's testimony "are no more than a logical outgrowth of earlier studies." (Comm. Br. 59) Scientific research confirming earlier suspicions and intuitions regarding child suggestibility was conducted as a direct result of disturbing accounts of mass child sex abuse such as this case. (M.Tr: 1/34-35, 53-54) The resulting explosion of new research has revolutionized the scientific community's understanding of the devastating impact of suggestive questioning./ Unlike earlier studies, the new research focuses on preschool children and addresses a panoply of suggestive interviewing techniques. In these recent studies, preschool children are interviewed about personally salient events, including bodily touching. As a result of the ground-breaking research conducted since 1990, scientists now know what was unknown at the time of the defendant's trial: a wide variety of suggestive questioning techniques, having their greatest impact on preschool children, cause such children to make demonstrably false reports regarding personally salient events involving bodily touching, sexualized events, and/or criminal conduct. Moreover, children's false narratives may become creative and elaborate, going well beyond the interviewers' suggestions, so that a determination of the reliability of their reports following suggestive interviewing becomes impossible.

There can be no doubt that the paradigmatic shift in the research respecting child suggestibility during the past decade constitutes a major leap forward, rather than a mere incremental increase in scientific knowledge. Because the scientific data underlying Dr. Bruck's testimony is so qualitatively different from what was available to the defendant at trial, the testimony fits snugly within the rubric of newly-developed scientific evidence for the purposes of a motion for new trial. In sum, the evidence presented by Dr. Bruck was correctly found by the motion judge to be newly-discovered.

II. THE MOTION JUDGE PROPERLY GRANTED A NEW TRIAL BECAUSE THE NEWLY-DISCOVERED EVIDENCE DEMONSTRATES THAT THE TESTIMONY OF THE FOUR CHILD-WITNESSES WAS UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED.

 

    1. Summary of Applicable Law.

 

1. Newly-discovered evidence that supports a motion to exclude trial evidence may warrant the granting of a new trial.

 

Defendants seeking a new trial on grounds of newly-discovered evidence usually rely upon evidence relevant to the jury's determination of guilt or innocence. But newly-discovered evidence relating to a judge's determination of the admissibility of evidence may also provide the basis for relief. In Commonwealth v. Ramirez, 416 Mass. 41 (1993), this Court considered a convicted defendant's motion for relief based upon new evidence of police misconduct. The court deemed the new evidence to be "newly-discovered" under the standards set forth in Grace, and granted the defendant a post-trial evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Id. at 51-52. The Court held that if the defendant proved his allegations at the hearing, "the evidence seized would have to be suppressed and the defendant's convictions set aside." Id. at 48, n.13. Other courts have also reviewed newly-discovered evidence claims relating to the admissibility of trial evidence./ A determination, based on newly-discovered evidence, that trial evidence should have been excluded warrants a new trial if the exclusion of the evidence would have created "a substantial risk that the jury would have reached a different conclusion." See Grace, 397 Mass. at 306.

    1. Unreliable evidence, including tainted child-witness testimony, must be excluded.

"One of the basic underpinnings of a fair trial is the concept that testimony or evidence which is unreliable or untrustworthy must be rejected." LaFrance v. Bohlinger, 365 F. Supp. 198, 205 (D. Mass. 1973) (Tauro, J.), affirmed 499 F.2d 29 (1st Cir. 1979), cert. denied sub nom., Meachum v. LaFrance, 419 U.S. 1080. This fundamental constitutional principle, implicit in both the Due Process Clause of the Fifth Amendment and Article XII of the Massachusetts Declaration of Rights, has been consistently applied in a wide array of factual contexts.

For example, the reliability of scientific principles underlying expert opinion testimony is essential to its admissibility. If reliability is lacking, "that opinion should not reach the trier of fact." Commonwealth v. Lanigan (II), 419 Mass. 15, 25-26 (1994). The trial judge serves as "gatekeeper," keeping unreliable evidence from the jury. Id. at 26.

The same principle has long been applied by courts to exclude the fruits of overly suggestive identification procedures. Manson v. Brathwaite, 432 U.S. 98, 114 (1977)("Reliability is the linchpin in determining the admissibility of identification testimony"); Commonwealth v. Holland, 410 Mass. 248, 253 (1991). Improperly suggestive identifications and their fruits are inadmissible because they are inherently unreliable. Commonwealth v. Johnson, 420 Mass. 458, 465 (1995).

Another area where courts have been particularly vigilant in screening out unreliable testimony before it reaches the trier-of-fact is hypnotically-aided testimony. In Commonwealth v. Kater (I), 388 Mass. 519, 521 (1983), the Court held that hypnotically-aided testimony is unreliable, and hence inadmissible.

Testimony which is the product of coercion is also subject to exclusion on the basis of its unreliability. Stein v. People of State of New York, 346 U.S. 156, 182 (1953) (coerced confessions are "too untrustworthy to be received as evidence of guilt"); see also Brown v. Mississippi, 297 U.S. 278 (1936). Unreliable statements extracted from adult prosecution witnesses are also inadmissible. LaFrance, 365 F. Supp. at 205.

The frequently-recurring issue of whether evidence is sufficiently reliable to be presented to a jury is entirely distinct from the separate question of whether a particular witness is competent to testify at all./ The testimony of a witness who is otherwise competent to testify may be rendered unreliable due to the undue influence of coercion, hypnosis, suggestive identification procedures, or other factors.

If evidence is deemed sufficiently reliable by the trial judge to be admitted at trial, it then falls to the trier-of-fact to evaluate the probative worth of that evidence. Jurors in Massachusetts are instructed to make their own determinations of such matters as the voluntariness of admissions, the possibility of mistaken eyewitness identification evidence, and the weight of expert testimony. Commonwealth v. Tavares, 385 Mass. 140, 150-152, cert. denied, 457 U.S. 1137 (1982); Commonwealth v. Rodriguez, 378 Mass. 296, 301-302 (1979); Lanigan (II), 419 Mass. at 26.

Courts in Massachusetts and throughout the United States have become increasingly cognizant that improper questioning of young children in sexual abuse investigations produces a grave risk of eliciting unreliable accounts./ Like the other varieties of unreliable evidence discussed above, the fruits of a tainted child-interview process should be kept from the trier of fact. Fundamental due process demands that a criminal conviction must not be founded upon unreliable, hence insubstantial, evidence of guilt.

In the leading case of State v. Michaels, the New Jersey Supreme Court addressed the defendant's post-trial attack upon "the manner in which the state conducted its investigatory interviews of the children." 642 A.2d 1372, 1375 (N.J. 1994). Guided by scholarly literature and an amicus brief authored by Dr. Bruck (M.Ex. 19), the court pointed to various factors that "can undermine the neutrality of an interview and create undue suggestiveness." Id. Specifically, the court found:

[T]he use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.

Id. at 1379. Based upon the defendant's showing of highly suggestive interviews used in the investigation, the court ruled that the defendant was entitled to challenge the admissibility of the child-witnesses' testimony at a pretrial "taint" hearing. Id. at 1382-83. The court hinged its ruling on the well-established duty of courts to play a gate-keeping role to exclude unreliable evidence. Id. at 1380./

The Commonwealth launches a frontal assault on Michaels, claiming that "numerous courts have been presented with the opportunity to adopt the reasoning of Michaels and allow defendants to request pretrial taint hearings, but have declined." (Comm. Br. 82-83) The Commonwealth is wrong. Out of the nine decisions cited by the Commonwealth, four were decided before Michaels, and none rejects either its reasoning or holding./ The Commonwealth's purported review of caselaw simply does not support its attack on Michaels.

The Commonwealth argues (Comm. Br. 83-84)that public policy counsels against subjecting the fruits of overly-suggestive interviewing to exclusion prior to trial. The essence of the argument is that holding such hearings will help criminal defendants and burden the prosecutors in child sex abuse cases. The argument is untenable. Both the United States Constitution and the Massachusetts Declaration of Rights require an array of procedures to protect the rights of criminal defendants and guarantee the fairness of criminal trials, including the exclusion of unreliable evidence, without regard to whether such procedures make conviction more or less likely.

3. The appropriate procedure for determining whether child-witness testimony has been rendered unreliable.

The use of a pretrial hearing to determine the admissibility of trial testimony is by no means a "new" procedure in Massachusetts. Mass. R. Crim. P. 13(d); Commonwealth v. Hunter, 416 Mass.831 (1994); Commonwealth v. Holland, 410 Mass. 248 (1991). Thus, there is no need to make new law to enable a court to assess the reliability of proffered child testimony prior to trial. In the identification context, once the defendant establishes by a preponderance of the evidence that "the witness was subjected by the State to an identification [procedure] so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law," the burden shifts to the prosecution to demonstrate by clear and convincing evidence that anticipated trial testimony has an independent source. Holland, 410 Mass. at 253; accord, Johnson, 420 Mass. at 463. This standard would appear, by analogy, to be the most appropriate test under Massachusetts law for adjudicating the merits of defendant's claim, as Judge Borenstein ruled (R. 450-451)./

This Court has not yet addressed whether, and under what procedures, unreliable child-witness testimony should be excluded./ It is apparent, however, that child-witness testimony which has been proven unreliable should be deemed inadmissible, just as are other types of unreliable evidence. This is not new law, but rather an application of the bedrock constitutional principle that "testimony or evidence which is unreliable or untrustworthy must be rejected." LaFrance, 365 F.Supp. at 205./

    1. Application of Law to Facts.

    1. The testimony of the four child-witnesses was unreliable and should have been excluded.

 

    1. The defendant proved that the four child-witnesses were subjected to overly suggestive interviewing procedures which rendered their testimony unreliable.
    2. The motion judge found:

      The record in this case makes it abundantly clear that the disclosures and testimony of the child witnesses were the product of coercive and overly suggestive interviewing techniques... The record in this case is replete with examples of outrageously suggestive and coercive interviewing techniques.

       

      (R. 452) This ruling was overwhelmingly justified.

      This case presents an archetype of interviewer bias, described by Dr. Bruck as the central driving force in flawed investigations. As the motion judge found, interviewer bias is apparent from the conduct of the September 12 parents' meeting,/ from the investigators' total disregard of exculpatory information, and from their failure to question clearly unbelievable elements of the children's allegations. (R.362-363)

    Flowing from their blatant bias, well-meaning parents and investigators subjected the child-witnesses to a potent battery of suggestive questioning techniques from the very beginning of the investigation through trial. Judge Borenstein's decision sets forth a plethora of examples as to each witness (R. 366-434), too numerous to recount in detail here. In sum, the children were questioned repeatedly in multiple interviews by their parents, police, DSS workers, therapists, and members of the prosecutor's office, including Susan Kelley. Investigators used stereotype induction to induce allegations, such as asking about "bad guys" and "scary clowns." Props, including anatomical dolls and drawings, were used extensively. Most of the child-witnesses were interviewed by adults of high status, specifically, police, sometimes at the police station. Investigators used a negative emotional tone, insisting that the children were "scared." Rewards and punishments, such as police badges and special privileges, were used. The children were often asked to pretend through dolls and puppets and to speculate. Peer pressure was used to induce disclosures. Leading and repetitive questioning was used throughout the investigation. All of these suggestive devises were employed with each of the children, as set forth in detail at pp. 8-27, supra.

    The Commonwealth has conceded that suggestive questioning is dangerous and that Kelley's interviews were improperly suggestive./ Yet the Commonwealth asserts that all other questioning was proper, claiming that "disclosures to family members or social workers [were] spontaneous or in response to open-ended questions." (Comm. Br. 86) This is patently untrue. Not a single child-witness in this case alleged abuse without having first been subjected to suggestive questioning./ The Commonwealth argues that "the motion judge erred in finding that the children's disclosures were the 'product' of coercion and had no independent reliability." (Comm. Br. 84) There was no error. Indeed the motion judge found: "[T]he evidence is overwhelming that there were impermissible interviewing and investigation techniques used throughout." (R. 440) Dr. Bruck's research empirically demonstrates that suggestive questioning techniques such as those used in this investigation, when used on preschool-aged children, produce unreliable accounts. As the motion judge found, the defendant more than met her burden of showing, by a preponderance of the evidence, that the four child-witnesses who testified at trial were subjected to overly-suggestive interviewing techniques. Accordingly, under the analogous test for the admission of eyewitness identification evidence set forth in Holland/Johnson, the burden shifts to the Commonwealth to demonstrate an independent source for the children's testimony.

  1. The Commonwealth utterly failed to demonstrate any independent evidence of abuse.

 

The motion judge found:

The Commonwealth has failed to satisfy its burden of proving by clear and convincing evidence that there was an independent source to show the reliability of the testimony of the child witnesses. The record in this case is devoid of any evidence that any of these child witnesses made independent spontaneous disclosures before they were subjected to the suggestive interviews and investigative techniques.... [A]ny consistency, however, minimal or trivial which may exist among the children's claims, did not occur until after they were subjected to all the improper procedures.... Neither the behavioral nor physical symptoms of the child witnesses show by clear and convincing evidence that there is an independent source for the children's testimony... While many of the symptoms exhibited by the child witnesses in this case...may be consistent with sexual abuse, they are far from dispositive on the question, and perhaps even more importantly none of these behavioral or physical symptoms were ever reported to anyone until after the allegations in this case surfaced in September, 1984 [except for MT, who had a similar physical condition before she ever enrolled at FADS].

 

(R. 453-454) These rulings were fully justified.

The Commonwealth's claim (Comm. Br. 85) that the "chilling consisten[cy]" of the children's accounts provides independent evidence of abuse is without merit. In fact, the children's accounts were fragmented, bizarre, and hopelessly inconsistent./ To the extent that there was any uniformity, it was likely due to suggestive questioning. As the motion judge found, the only thing "chillingly consistent" in this case is the degree to which "the children were told repeatedly and inexcusably to tell the 'story' as the investigators decided the story to be." (R. 454)

The Commonwealth's insistence (Comm. Br. 84-87) that corroborative physical and behavioral indicators clearly and convincingly provide independent evidence of guilt is nothing short of smoke and mirrors. First, as the motion judge found, the parents' claims that such indicators existed while their children attended FADS was dubious, since they expressed no concerns about their children's behavior to anyone prior to the investigation, and asserted that they never saw "behavioral" symptoms of abuse. Secondly, most of the purported "symptoms," such as sleeplessness or bedwetting, are common childhood problems that are not trauma-specific and may well have been associated with problems the children were experiencing at home. Finally, as for purported sexualized behaviors, many such behaviors are common among non-abused children,/ and no adult reported noticing such behaviors before the children were subjected to sexualized questioning and anatomical dolls, thereby traumatized by the investigation itself.

The purported physical evidence fares no better. The Commonwealth asserts: "The three girls suffered from vulvitis. MT also suffered from painful vaginitis, and JB had a cracked and fissured labia and a hymenal bump." (R. 85) While these medical conditions may sound significant, they actually have no probative value because they are associated with a wide variety of innocent causes and are commonly found among non-abused children. Moreover, MT, the only child diagnosed with a medical condition while attending FADS, had a similar condition before she went there, and JB's condition was first diagnosed over 18 months after she left FADS.

There was no other inculpatory evidence. In sum, as the motion judge correctly found (R. 364):

Because there is no independent evidence to corroborate their allegations of abuse, [the child-witnesses'] testimony in unreliable; its admission at trial of the defendant was a violation of the most fundamental rules of evidence and due process.

Accordingly, under the Holland/Johnson/Michaels test, the childrens'unreliable testimony should have been excluded.

2. The defendant is entitled to a new trial because the exclusion of the child witness testimony would have created a substantial likelihood of acquittal.

 

The defendant's pretrial motion to dismiss was denied by Judge Dolan on the grounds that the defense expert's theory regarding suggestive questioning had not reached the level of scientific acceptability to justify excluding the child-witnesses' testimony.(M. Tr. 3/20/86, 108) If the newly-discovered scientific evidence presented by Dr. Bruck had been before the motion judge in 1986, that judge would properly have excluded the testimony of the four child-witnesses at trial. In the absence of such testimony, there is no chance that the Commonwealth could have secured a conviction. Accordingly, the defendant is entitled to relief.

III. ALTERNATIVELY, THE MOTION JUDGE PROPERLY GRANTED THE DEFENDANT A NEW TRIAL BECAUSE, EVEN IF THE TRIAL TESTIMONY OF THE CHILD-WITNESSES NEED NOT HAVE BEEN EXCLUDED, PRESENTATION OF THE NEW SCIENTIFIC EVIDENCE TO THE JURY WOULD HAVE PRODUCED, AT THE VERY LEAST, A SUBSTANTIAL LIKELIHOOD OF ACQUITTAL.

 

    1. Summary of Applicable Law.

    Newly-discovered evidence warrants a new trial if the motion judge finds there is "a substantial risk" that the evidence would have produced a different verdict. Grace, 397 Mass. at 306. The motion judge need not conclude that a reasonable doubt would have been created.

    It is enough that, on a full and reasonable assessment of the trial record, the absent evidence would have played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty.

    Commonwealth v. Tucceri, 412 Mass. 401, 413-414 (1992). There is no rigid requirement that newly-discovered evidence relate to an entirely different subject matter than evidence admitted at trial. Thus, even if the newly-discovered evidence bears upon an issue previously raised at trial or impeaches a witness, relief may be granted if the evidence is sufficiently compelling. Id. at 414.

  1. Application of Law to Facts.
  2. Judge Borenstein ruled (R.439-440):

    Without question...there is more than a substantial risk that the jury would have reached a different verdict had the evidence been admitted at trial. Dr. Bruck's compelling testimony goes to the heart of the prosecution's case: the reliability of the testimony of the child-witnesses [and of the fresh complaint testimony of the parents as well] Moreover, her testimony enables jurors who must evaluate children's testimony in child sex abuse cases to replace reliance upon their "common sense" only, with consideration of hard data and scientific evidence, unavailable in this defendant's trial, but now irrefutable. Dr. Bruck's testimony gives jurors the necessary tools to address such critical testimony. These are issues outside the realm of a juror or Judge, without expert testimony. Had such evidence been presented at trial, it would have clearly undercut the Commonwealth's argument...that the children were reliable witnesses. It would have been a powerful countervailing force to the Commonwealth's appeal for jurors to apply their "common sense" and personal experience in deciding the guilt or innocence of the defendant... This is particularly true here, where the evidence is overwhelming that there were impermissible interviewing and investigation techniques used throughout.

     

    This ruling was entirely correct. As shown above, the prosecution's case against the defendant was based almost entirely upon the testimony of the child-witnesses, buttressed by the "fresh complaint" testimony of parents; there was no independent evidence of guilt. Thus, the key question the jury faced in this case was: How could young children describe sexual abuse unless they actually experienced it? The tragedy of this case is that the defense was singularly ill-equipped at trial to answer this critical question due to the absence of published scientific research on whether suggestive questioning of preschool children actually produces false reports of bodily touching. As a result, even though the children's accounts were bizarre and rife with contradictions, conviction was virtually inevitable.

    This is precisely why the new scientific evidence is so pivotal. Faced with such evidence, a jury would be able to take into account the empirically-demonstrated impact of suggestive questioning. Given the bizarre and contradictory testimony of the children and the lack of any independent evidence of guilt, such scientific testimony would pack a powerful punch. The central question in the minds of the jurors could be answered. At the very least, given the overall weakness of the prosecution's case, the newly-discovered scientific evidence presented by Dr. Bruck would have created a substantial likelihood of a different outcome at trial. Accordingly, under the relevant legal standards, Judge Borenstein properly allowed the motion for new trial.

    IV. THE MOTION JUDGE PROPERLY DETERMINED THAT THE NEWLY-DISCOVERED SCIENTIFIC EVIDENCE PRESENTED BY THE DEFENDANT IS ADMISSIBLE.

  3. The Evidence Meets the Threshold Test of Admissibility Under Frye and/or Lanigan (II).

    1. Summary of Applicable Law.
    2.  

      In Lanigan(II), this Court adopted the standard for the admission of expert testimony announced by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In adopting the Daubert standard, this Court held: "the ultimate test...is the reliability of the theory or process underlying the expert's testimony." 419 Mass. at 24-25./

    In Michaels, the New Jersey Supreme Court recognized the general acceptance of expert testimony regarding child suggestibility:

    [A] sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.

    642 A.2d at 1377. The Massachusetts Appeals Court has twice recognized the validity of recent research in this area. Allen, 40 Mass. App. Ct. at 462 (noting the existence of "a host of research" that "leading or coercive questioning can distort a child's memory"); Commonwealth v. Pare, 43 Mass. App. Ct. 566, 576 (1997)(noting the "reality of children's susceptibility to suggestive interviewing practices"), aff'd, 427 Mass. 427 (1998). Courts in other jurisdictions have found such expert testimony admissible under Daubert./

  1. Application of Law to Facts.

 

Judge Borenstein found:

Dr. Bruck's work on suggestive interviewing techniques satisfies the reliability test. Her theory has not only been published in accepted scholarly journals, but has passed the scrutiny of peer review, gained general acceptance in the field to which it belongs, and lauded as an objective and effective method of investigating sexual abuse claims involving children....

 

...[B]ecause the process on which Dr. Bruck relied to make conclusions about suggestive interviewing techniques and children's suggestibility has been published, tested, and widely accepted, it is reliable. As such, Dr. Bruck's expert testimony is - and would have been - admissible to show that the interviewing and interrogative techniques employed in this case were impermissibly suggestive, and that they had a negative impact on the reliability of the children's disclosures.

 

(R. 444, 447) This ruling was entirely justified.

    1. Dr. Bruck's views regarding child suggestibility are widely accepted in the scientific community.

    Dr. Bruck is one of the nation's leading experts in the area of children's suggestibility. She is a co-author of the leading text on this subject, Jeopardy in the Courtroom. Dr. Bruck's co-authored article, "The Suggestibility of the Child Witness: A Historical Review and Synthesis," 113 Psychological Bulletin 403 (1993), was awarded the Robert Chin Memorial Award as the most outstanding article on child sexual abuse in 1993 by the Society for Social Issues, a division of the American Psychological Association. Twenty-nine leading developmental and cognitive psychologists in the United States and Canada signed the SACD brief in this case, endorsing her views on children's suggestibility. Dr. Schetky testified that Dr. Bruck's work is held in "high regard" among specialists in her field, and that Jeopardy in the Courtroom is considered to be among the most significant and most useful books in the area of forensic evaluation of child sexual abuse allegations. There is no question that Dr. Bruck's work is generally accepted by the scientific community.

  1. The Commonwealth's and Amici's Attack on Dr. Bruck Has No Merit.
  2.  

    The Commonwealth and Amici launch several errant attacks on Dr. Bruck. First, the Commonwealth argues that Dr. Bruck failed to offer a theory that explained the results of the studies she cited, abandoning the "memory distortion" theory in the process.(Comm. Br. 70) Contrary to the Commonwealth's claim, Dr. Bruck did not "abandon" the theory of memory distortion; she simply did not rely on it as the sole or necessary underpinning for the demonstrated unreliability of child-witness statements produced by suggestive questioning. The question of why suggestive questioning leads to false reports, while interesting, is collateral. Dr. Bruck's relevant theory, which has been tested, peer-reviewed, replicated, and generally-accepted, is that children can and do make demonstrably false reports about bodily touching after being subjected to suggestive interviewing. As explained in detail at SACD Br. pp. 7-9, 12-13, under the modern definition of suggestibility, it is not necessary to demonstrate that children's memories are actually distorted to prove that suggestive questioning creates a high risk of false reporting. The Commonwealth's narrow focus on memory change is outdated and irrelevant. Ceci & Bruck (1993) at p. 404. See p. 60, fn. 36, supra.

    Second, the Commonwealth argues that recent studies on child suggestibility are not relevant because they lack "ecological validity," defined as "the degree to which laboratory conditions approximate 'real life' conditions." (Comm. Br. 72-75) (see also Am. Br. 9) This contention has no merit. As described in detail at SACD Br. pp. 21-27, the scientific research studies cited by Dr. Bruck do not lack ecological validity. As Dr. Bruck explained, scientists will never carry out studies that perfectly mirror all of the factors operating in any child sexual abuse case:

    [S]cientists cannot suggest the horrors of child abuse to children about whom abuse has not been confirmed - like the investigators in these cases often do. Since we cannot duplicate the conduct of investigative interviewers like those in this case, we must base our inferences on the most scientifically rigorous evidence that is available.

     

    Based upon this scientific knowledge, Dr. Bruck opined:

    [T]he constellation of factors operating in Amirault would constitute an extraordinarily powerful suggestive atmosphere, one that is far stronger than those that have given rise to false reports in the research studies...

     

    (R. 524) In sum, to whatever degree the "real life" factors present in this case differ from the laboratory setting, those factors were more likely to produce false reports than in the laboratory.

    Third, the Commonwealth argues that Dr. Bruck's views on the use of anatomically detailed dolls are "not supported by the majority of the available research." (Comm. Br. 75-78) This contention is erroneous. As explained in detail in SACD Br. pp. 16-19, there are at least eight clinical studies which provide support for Dr. Bruck's view that anatomically detailed dolls are suggestive devices. The vast majority of the research is in accord with Dr. Bruck's view.

    Fourth, the prosecution attacks Dr. Bruck for her reliance upon scientific literature about disclosure patterns regarding sexual abuse. (Comm. Br. 79) As explained in detail at SACD Br. pp. 27-31, the studies cited by Dr. Bruck are considered to be the best available scientific studies regarding sexually abused children's disclosure patterns, while the studies cited by the Commonwealth are methodologically flawed. In any event, the dramatic rates of initial denial (100%) and recantation (75%) among the children in this case, higher than the rates presented in any study, raise serious questions as to the reliability of the allegations.

  3. Dr. Bruck's expert opinions conclusively meet the standard of admissibility under Frye and/or Lanigan (II).

 

In sum, the newly-discovered scientific evidence presented by the defendant is admissible under both Frye and Lanigan (II). The theories espoused in Dr. Bruck's expert testimony are generally accepted by the relevant community of scientists. The vast majority of the works cited have been published in reputable academic journals following thorough peer review. The reasoning and methodology underlying Dr. Bruck's opinions are scientifically valid and reliable. The studies relied upon by Dr. Bruck were conducted according to well-established scientific protocols by prominent scientists at leading universities. The results of those studies have been widely tested and replicated. The quality of Dr. Bruck's work is recognized around the world among academics and researchers in this field. There may be political objections in some quarters to what the new research reveals, but there is no meaningful scientific dissent to her views./ Under either Frye or Lanigan (II), Dr. Bruck's testimony is admissible, as Judge Borenstein properly found.

    1. The New Evidence is Admissible at a Pretrial Hearing.

 

There can be no real question (and the Commonwealth raises none) as to the admissibility of Dr. Bruck's testimony at a pre-trial hearing to determine the reliability of the children's testimony. Since reliability of the children's testimony is the preliminary issue to be decided, qualified expert testimony bearing on that issue is clearly relevant and appropriate. See Michaels, 642 A.2d at 1383 (at a taint hearing, both parties are entitled to call experts regarding suggestive questioning).

C. The New Evidence is Admissible at Trial.

    1. Summary of applicable law.

Expert testimony is admissible at trial "whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide." Commonwealth v. Dockham, 405 Mass. 618, 628 (1989). This Court has set forth specific limitations on expert trial testimony in child sexual abuse cases. Expert testimony respecting the "general or typical characteristics shared by child victims of sexual abuse" is allowed. Commonwealth v. Federico, 425 Mass. 844, 848 (1997). An expert is prohibited, however, from "directly referring to or comparing the behavior of the specific child complainant to general characteristics of sexual abuse victims because '[s]uch testimony impermissibly intrudes on the jury's province to assess the credibility of the witness.'" Id. at 849. An expert "may not directly opine on whether the alleged victim was in fact subject to sexual abuse." Id.

Aside from these specific prohibitions, generally "[w]itnesses may not offer their opinions regarding the credibility of another witness." Commonwealth v. Montanino, 409 Mass. 500, 504 (1991). However, expert testimony regarding factors affecting the reliability of testimony does not constitute an opinion as to witness credibility as such. For example, this Court has held that it is within a trial judge's discretion to permit expert testimony at trial regarding the reliability of eyewitness identification. Commonwealth v. Santoli, 424 Mass. 837, 838 (1997)./ To be admissible, expert testimony regarding eyewitness identification must be "relevant to the circumstances of the witness's identification," "reliable in the sense that the tests and circumstances on which the opinion rests must provide a basis for concluding that the opinion is reliable," and "sufficiently tied to the facts of the case so that it will aid the jury in resolving the matter." Id. at 844. Similar standards should apply to expert testimony regarding child suggestibility. Courts in numerous jurisdictions have recognized that expert testimony regarding suggestive interviewing does not usurp the province of the jury in determining credibility./

 

2. The defendant would be entitled to present Dr. Bruck's testimony at trial.

 

Judge Borenstein ruled (R. 445):

Dr. Bruck's testimony would be admitted to assist jurors in understanding the interviewing and related investigative techniques employed in this case, including whether these unfairly impacted the reliability of the children's testimony, not to comment on the children's credibility.

This ruling was correct. The expert testimony presented by the defendant would clearly be admissible before a jury at trial. None of the limitations set forth in Federico bars such testimony. Dr. Bruck manifestly did not "refer[] to or compar[e] the behavior of the specific child complainant to general characteristics of sexual abuse victims," nor did she "directly opine on whether the alleged victim was in fact subject to sexual abuse." 425 Mass. at 848-849.

There are no other applicable principles of law that would operate to bar Dr. Bruck's testimony at trial. Contrary to the Commonwealth's argument (Comm. Br. 65-66), Dr. Bruck's testimony did not constitute "a direct opinion regarding the children's credibility." Dr. Bruck never commented on whether she thought the children had been abused. Indeed, she testified: "I never characterize these children as lying or not telling the truth....[W]e never know whether they're true or untrue." (M.Tr: 2/201) Rather than opining on credibility, Dr. Bruck carefully elucidated how specific suggestive interviewing techniques, such as those used in this case, have engendered inaccurate reporting by children in scientific research studies. Dr. Bruck's testimony was thus directly "relevant to the circumstances" of this case and sufficiently "tied to the facts of the case" to be helpful to the jury. Cf. Santoli, 424 Mass. at 844.

The Commonwealth also argues that the evidence that Dr. Bruck presented is inadmissible because it was "within common knowledge and experience" of the jurors. (Com. Br. 67-68) This contention ignores reality.

Even though [a] jury may...have beliefs about [a] subject, the question is whether those beliefs [are] correct. Properly conducted social science research often shows that commonly held beliefs are in error.

 

United States v. Hall, 93 F.3d 1337, 1345 (7th Cir. 1996). Courts have recognized the helpfulness of expert testimony regarding child suggestibility. As the court stated in Michaels, if a child's statements are deemed reliable enough for submission at trial, then

[e]xperts may...be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed, but not of course, to offer opinions as to the issue of a child-witness's credibility, which remains strictly a matter for the jury.

642 A.2d at 1384. Since Dr. Bruck's testimony would be helpful to the jury and would not usurp the province of the jury to decide issues of credibility, such testimony would be admissible at trial. Where a prosecution rests exclusively on child-witness testimony, as in this case, expert testimony is particularly important. Indeed, its exclusion would likely constitute prejudicial error./

The Commonwealth also erroneously argues that the substance of the research studies underlying Dr. Bruck's testimony is not admissible. (Comm. Br. 66) An expert is permitted to recount the grounds of her expert opinion. "Such an explanation may be of great use to the jury in determining what weight to accord the expert's testimony." Simon v. Solomon, 385 Mass. 91, 105 (1982). Permissible grounds include: (1) "the expert's direct personal knowledge," (2) "evidence already in the record or which the parties represent will be presented during the course of the trial," or (3) "facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." Sacco v. Roupenian, 409 Mass. 25, 28-29 & n.3 (1990). An expert may certainly recount the substance of studies she conducted which were used in formulating her opinion.

The underlying scientific research studies would also be independently admissible as experiments. Contrary to the Commonwealth's assertion (Comm. Br. 66-67), experiments do not need to "perfectly mimic" the facts in a particular case to be admissible, but need only manifest "'substantial similarity' between experimental conditions and the conditions that gave rise to the litigation." Welch v. Keene, 31 Mass. App. Ct. 157, 166, rev. denied, 411 Mass. 1103 (1991). Dr. Bruck's experiments were designed to replicate actual child sex abuse investigative questioning as closely as possible without violating ethical norms. The experiments are thus highly probative. The Commonwealth's contention (Comm. Br. 69) that admitting the substance of the studies relied upon by Dr. Bruck would "pose a significant danger of misleading the jury" is faulty. Indeed,

The dangers that scientific evidence will mislead the jury might be greater...where the jury is not presented with the data on which the expert relies, but must instead accept the expert's assertions as to the accuracy of his conclusions.

 

United States v. Downing, 753 F.2d 1224, 1239 (3rd Cir. 1985). In sum, the substance of the research studies would be admissible as experimental evidence which elucidate the grounds underlying Dr. Bruck's opinions. /

V. THE MOTION JUDGE PROPERLY DETERMINED THAT THE DEFENDANT'S CLAIMS ARE NOT BARRED BY PRINCIPLES OF WAIVER OR MOOTNESS.

 

A. Waiver.

The Commonwealth argues (Comm. Br. 45-48) that this Court is precluded from addressing the substance of the defendant's motion for new trial by "the doctrine of finality." In support of its position, the Commonwealth points to a body of caselaw which places the onus on a convicted defendant to present all claims for relief as soon as possible. The Commonwealth also relies upon the public's interest in bringing legal controversies to a speedy and final resolution. Declaring that the defendant was "prepared to assert" her present claim as of June 2, 1995, the Commonwealth argues that her "decision to hold [her claim] in abeyance" until October 1997 should result in the forfeiture of that constitutional claim.

Judge Borenstein ruled:

[T]he defendant: (1) preserved her right to raise the issue of newly-discovered evidence in her original motion for new trial; and (2) was unable to raise the claim in her second motion for new trial because of the enormous factual and legal issues involved in preparing such a motion which needed to be filed within twenty eight days of the Supreme Judicial Court decision...reversing the order by this Court (Barton, J.) allowing her original motion for a new trial. Even if I found she waived her rights, because there is a substantial risk of miscarriage of justice in this case, this Court has exercised its discretion and heard the motion on the merits...

 

(R.467-469) This ruling was entirely correct.

There is no doubt that parties, the judiciary, and the public share a systemic interest in avoiding piecemeal litigation and in conclusively resolving cases as quickly and efficiently as possible. That interest is reflected in the rule that legal claims not properly preserved are generally deemed to be waived. Nevertheless, Massachusetts courts are afforded discretion to adjudicate legal issues not raised as early as they could have been if it appears a miscarriage of justice might otherwise result./ Indeed, Mass. R. Crim. P. 30(c)(2) specifically authorizes the judge "in his discretion" to permit issues not raised in an initial new trial motion to be presented in a subsequent new trial motion. That same rule authorizes a defendant to present grounds in a subsequent motion where such grounds "could not reasonably have been raised in the original or amended motion." Id. None of the cases cited by the Commonwealth contradicts the well-established discretionary authority of a motion judge to consider an issue raised for the first time in a subsequent motion for new trial in appropriate circumstances.

In the instant case, Judge Barton specifically stated that the defendant had not waived the newly-discovered evidence issue and reserved the right to present that issue at a later time.(Supp. App. 10-11) Under the circumstances, it would be grossly unfair to deem the claim waived. Indeed, given Judge Barton's ruling, this additional claim for relief "could not reasonably have been raised" in the defendant's initial new trial motion.

The Commonwealth claims that the defendant made a "tactical" decision to engage in "piecemeal" litigation by presenting this issue in October 1997, rather than when she filed her second motion for new trial six months earlier, charging that the defendant "deliberately withheld this issue and used it to file a 'surprise' motion." (Comm. Br. 45-46, 49) This argument is frivolous. The defendant had absolutely nothing to gain by deliberately delaying the presentation of her newly-discovered evidence claim. It was clearly in her interest to raise any and all issues which might prove successful when she filed her second new trial motion, but she was not prepared to present the newly-discovered scientific evidence claim at that time. There was no reason for the defendant to expend the enormous resources needed to prepare a motion for new trial based on newly-discovered scientific evidence until after this Court reversed Judge Barton's decision granting her a new trial on March 24, 1997. That massive undertaking, which the Commonwealth eventually sought six months to respond to, was nowhere near completion by April 29, 1997, when the defendant filed her second motion for a new trial based on ineffective assistance of counsel on appeal. Had the defendant waited to file her second motion for new trial until all of the work necessary to present the claim based upon newly-discovered scientific evidence were completed, then both she and her elderly, sick mother, Violet Amirault, would almost certainly have been imprisoned in the interim. To avoid that disastrous consequence, the defendant had no choice but to raise the meritorious issue she had ready to present on April 29, 1997 -- ineffective assistance of appellate counsel.

In October 1997, the defendant was in a position for the first time to file her motion for new trial based upon newly-discovered scientific evidence, along with a supporting expert affidavit and memorandum of law. At that point, the defendant had the option of holding those filings in abeyance until after the Commonwealth's appeal from Judge Borenstein's allowance of her second motion for new trial had been adjudicated or bringing the additional claim without delay. It was precisely to avoid engaging in "piecemeal litigation" that the defendant adopted the latter approach, presenting this additional claim for relief as soon as it was ready, even though she had already been granted a new trial and was free on bail pending the Commonwealth's appeal. Under these unusual circumstances, Judge Borenstein properly found that the defendant's present claim could not reasonably have been raised earlier and exercised his discretion to reach the merits of that claim since a miscarriage of justice might otherwise result./

    1. Mootness.

 

The Commonwealth argues (Comm. Br. 48-50) that adjudication of the merits of defendant's claim should be barred by the doctrine of mootness. The crux of the Commonwealth's contention is that since the defendant had already been granted a new trial, she should not have been permitted to waste judicial resources by litigating additional grounds for such relief.

Judge Borenstein ruled (R. 475-476):

This Court finds the Commonwealth's argument meritless and contrary to the doctrine of mootness....The defendant's motion fits squarely into the enunciated exception to the general rule. The question of whether the children's testimony is unreliable, and thus inadmissible, is of great public importance which requires a prompt answer. The defendant is entitled to file this motion at any time under Mass. R. Crim. P. 30. There is more than a "good likelihood" that these two parties would have eventually argued this issue.... Deciding this question now conserves valuable judicial resources far more efficiently and fairly than deferring the question until after the Supreme Judicial Court addresses the ineffective assistance of counsel question. By addressing all of the issues regarding the defendant's right to a new trial together, the Supreme Judicial Court may completely dispose of this case while protecting the public's interest in finality.

 

This ruling was entirely correct.

The case of Quegan v. Massachusetts Parole Board, 423 Mass. 834, 836 (1996) is directly on point. In that case, this Court reached the merits of the plaintiff's challenge to the denial of parole, even though he had been granted a new trial and released from custody in the interim. The Court noted that the Commonwealth had an appeal pending from the allowance of the plaintiff's new trial motion and, if the Commonwealth succeeded in that appeal, parole could become a live issue once more.

In Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 298 (1975), this Court articulated the reasons why courts decline to hear moot cases:

(a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake,(c) the adjudication of hypothetical disputes would encroach on the legislative domain, and(d) judicial economy requires that insubstantial controversies not be litigated.

 

Obviously, none of those factors is present in the instant case. The controversy between the Commonwealth and Cheryl Amirault LeFave remains a factually concrete, vigorous dispute. The issues raised by the defendant's pending motion for new trial, which go to the very heart of this prosecution, are hardly insubstantial. Both the parties and the public deserve a definitive answer as to whether the evidence which underlies the convictions in this case was inherently unreliable.

CONCLUSION

 

Judge Borenstein was surely not the first judge to consider the trial record in this case, but he was the first judge to do so in light of the newly-discovered scientific evidence presented by the defendant. That evidence casts grave doubt upon the factual underpinnings of the prosecution and raises a substantial likelihood that an innocent woman was wrongly convicted of the most unspeakable crimes. This Court has an opportunity, by affirming the motion judge, to rectify that injustice. Based upon the relevant facts and applicable law, the defendant asks this Court to affirm the order of the Superior Court allowing her third motion for new trial.

 

Respectfully submitted,

CHERYL AMIRAULT LeFAVE

By her attorneys,

 

_____________________________

James L. Sultan, BBO #488400

Charles W. Rankin, BBO #411780 Catherine J. Hinton, BBO #630179

Rankin & Sultan One Commercial Wharf North, 2nd Fl. Boston, MA 02110

(617) 720-0011

 

_____________________________

Daniel R. Williams, Pro Hac Vice

Thornton & Tanenhaus

521 Fifth Avenue, 27th Floor

New York, NY 10175

(212) 883-1200

 

 

Of Counsel:

Daniel Finneran

Harvey A. Silverglate