COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss.

CRIMINAL ACTION NO. 8563,
8564, 66, 67; 85-2768,
2679, AND 2680.

COMMONWEALTH OF MASSACHUSETTS
Plaintiff

v.

CHERYL AMIRAULT LEFAVE
Defendant

BEFORE: BORENSTEIN, S.C.J.

APPEARANCES:

LYNN ROONEY, ESQ., ASSISTANT DISTRICT ATTORNEY

CATHERINE SULLIVAN, ESQ., ASSISTANT DISTRICT ATTORNEY

DANIEL R. WILLIAMS, ESQ.

DANIEL FINNERAN, ESQ.

JAMES I. SULTAN, ESQ.

CATHERINE HINTON, ESQ.

Cambridge, Massachusetts
JUNE 12, 1998

PROCEEDINGS

JUNE 12, 1998

THE CLERK: Middlesex Superior Court, Criminal Action numbers 8563, 8564, 66, 67; 85-2678, 2679, and 2680. Commonwealth of Massachusetts versus Cheryl Amirault LeFave.

Counsel please introduce yourself for the record.

MS. ROONEY: Good morning, your Honor. Assistant District Attorney Lynn Rooney for the Commonwealth.

MS. SULLIVAN:. Good morning, your Honor. Catherine Sullivan for the Commonwealth.

THE COURT: Good morning.

MR. WILLIAMS: Good morning, your Honor. Daniel R. Williams, New York City.

MR. FINNERAN: Good morning, your Honor. Dan Finneran, Counsel for the defendant.

MR. SULTAN: Good morning, your Honor. James Sultan.

MS. HINTON: Good morning, your Honor. Catherine Hinton.

THE COURT: Good morning. Good morning all of you.

A couple of matters first. There is the other ruling of mine pending at the S.J.C. Pursuant to that ruling, Miss LeFave has been out on bail. Whatever the Court's ruling today, I intend to keep the same conditions on bail pending the reviews of that decision and what I expect to be the reviews of this decision.

In addition I have a motion to dismiss on behalf of Violet Amirault. Notification of death and motion to dismiss.

I don't have an opposition to that. I don't know if you've just received notice or whether you tank any position?

MS. SULLIVAN: Your Honor, we take no position on that. We're certainly not going to proceed on that.

THE COURT: I'm going to allow that motion.

And here's how I intend to proceed this morning. I am going to read a summary of my findings and rulings. About a four-page summary of a one-hundred-and-forty-page decision. And then I have some comments to make after I read that summary.

Since this third motion for a new trial was assigned to me, I have carefully reviewed and considered the testimony of the two witnesses who testified before me at the hearing.

I've considered carefully the record in the case, which consists of several thousand pages including a memoranda submitted from both parties; transcripts of both trial and pre-trial hearing; fifty-six Exhibits, including the affidavit of one of the defendant's experts, Doctor Bruck, and videotaped interviews with the child witnesses who testified at the trial; dozens of scholarly articles in the field; pertinent cases and transcripts of both the evidentiary hearing and the final arguments held before me on the motion for a new trial.

This Court is the first in the Commonwealth to consider the defendant's arguments regarding newly discovered evidence. I've reviewed the defendant's claims recognizing the heavy burden facing her as she moves for a new trial for a third time after three prior reviews of her case by the Supreme Judicial Court.

Understandably in the Supreme Judicial Court's most recent ruling, the importance of finality was part of the rationale for the Court's decision reversing the allowance of the first motion for a new trial.

Consequently in its review of this motion, this Court carefully considered what merit could possibly exist in another attempt by the defendant to prevent what might appear to be the obvious and inevitable: her return to prison.

Given this history, a presumption tilts heavily towards finality. Notwithstanding the importance of finality this Court had to consider another equally significant concern in our criminal justice system: the requirement that the Courts avoid an injustice.

This concern is embodied in Rule 30 of the Massachusetts Rules of Criminal procedure, which allows the pursuit of a motion for a new trial at any time, even long after a conviction and multiple reviews when justice may not have been done.

After weighing all these interests, this Court concludes that the circumstances of Cheryl Amirault LeFave's conviction present just such a case.

This Court is convinced that the evidence the defendant has submitted in support of her motion, the scientific evidence casting serious doubt on the reliability of the child witnesses' testimony is newly discovered.

The evidence makes clear that there were serious overwhelming errors committed in the investigation of the defendant, particularly in the interviewing of the child witnesses and their families. These errors, I find, render the testimony of the child witnesses unreliable, thus violating the defendant's right to due process.

There exists in this case a substantial risk that had this evidence been admitted at trial, the jury would have reached a different verdict.

This Court also finds that the defendant has not waived her claims in this motion nor are they moot. Furthermore, in allowing the defendant's motion, this Court is not about adopting new law.

In today's decision this Court does not suggest that the serious errors committed in the investigation of this defendant were intentionally done in bad faith. Rather, overzealous and inadequately trained investigators, perhaps unaware of the great dangers of using improper interviewing and investigative techniques, questioned these children and their parents in a climate of panic if not hysteria, creating a highly prejudicial and irreparable set of mistakes.

These grave errors led to the testimony of the children being forever tainted. The only allegations made by the child witnesses occurred after they were subjected to the admittedly suggestive interviews and investigative techniques as well as inappropriate, even if understandable, influence by their families. Moreover, neither behavioral symptoms or physical evidence which may be consistent with child sexual abuse were revealed until after the children and their families were subjected to these improper interviewing and investigative techniques.

These alleged symptoms were only discussed after the families were overwhelmed by the panic, hysteria and media attention that snowballed this case into national headlines and widespread concern about ritualistic sexual abuse of children.

While it is not the responsibility of this Court to decide the ultimate question of Cheryl Amirault LeFave's guilt or innocence, all of the evidence leads this Court to conclude that there is more than a substantial risk that the defendant was unjustly convicted.

Alone the newly discovered evidence entitles the defendant to a new trial. There is, however, another equally important reason for granting a new trial in this case under Rule 30 of the Mass. Rules of Criminal Procedure.

When the newly discovered evidence and the resulting violation of due process is combined with the constitutional error of depriving her of her right to confrontation under Article 12 of our Declaration of Rights, the testimony of the Postal Inspector, which was admitted not only for motive but to support the credibility of the children's testimony, the ineffective assistance of Counsel on appeal and the fact that the evidence in this case is not overwhelmingly one sided, this Court is left with an abiding conviction that justice was not done.

I am considering the Postal Inspector's testimony not as an error standing alone; the issue has been previously ruled on favorably for the Commonwealth. This evidence, however, combined with other errors, creates a substantial risk of a miscarriage of justice under a totality of the circumstances.

This Court hereby finds and rules that the defendant has more than met the required burden on her motion and that the interest of justice requires a new trial.

At the new trial, the child witnesses will not be permitted to testify because they have been subjected to very serious and repeated impermissible interviewing and investigatory techniques and no independent evidence exists to support their claims. Thus, their testimony has been forever rendered unreliable.

Although honest, the overwhelming evidence shows that there is a great risk that child witnesses were mistaken through no fault of their own. Following this summary is a more detailed explanation of today's decision, containing the Court's finding of fact, reasoning and my rulings of law.

There are, however, a number of things I wish to say that do not appear in my ruling.

First of all, there are a number of victims in this sad and tragic case, which has by now become known as Fells Acres. First of all, the children and their families. Traumatized by an investigation, interviews, pressures, influences and a process that at best was unfair causing unreliable disclosures, and at worst convincing them of abuse that may not have occurred.

Indeed, because of the interviews and other improper influences we will never know for sure whether or not the children were abused, which is one of the dangers of the techniques that were employed.

What we do know and what I'm firmly convinced of is that the procedures themselves were abusive to the children and to their families.

Secondly, another tragic victim in this case is the defendant who has lost her physical liberty for a significant period of time and this Court cannot imagine anything worse than an innocent person being in prison.

Certainly she has been the victim of a serious miscarriage of justice. In many ways she will always be a prisoner of peoples' impressions, and her spirit may never be intact; time will tell.

The system of justice also has suffered. The damage to us from a single injustice is profound. It leaves us, and it should, restless, our conscience never at peace, always questioning what went wrong. This is true of the courts; it is also true of law enforcement, prosecutors and child-welfare investigators.

This case arose at a time in the 1980's when fantastic, and now we know incredible, stories about ritualistic sexual abuse of children shook our society to the core.

We all wanted then and we want now to protect our children. It would be a sad day if society and our courts were not concerned about the sexual abuse of children. As a Judge for almost twelve years, I have sent many child rapists to our State's Prison system and as long as I am a Judge I will continue to do so. But like anything else that is done in excess, even when originally it grew out of a clear and passionate concern for children, these kind of passions carry great risks.

This case is certainly a perfect example of how even well-intentioned people can engage in a process that forgets a fundamental principle in our society and its system of justice: that only through a fair and as humanly as possible accurate investigation of alleged criminal conduct can we rely with confidence on results at trial. These fundamental principles were set aside in the case involving Miss LeFave.

This case ought to leave no one feeling confident except for one thing: justice was not done.

As a result, in this case we have a merger of what I see as two tragedies: The inability to ever know accurately and reliably whether these children were abused. And, secondly, sacrificing the rights of innocent people. This is intolerable to this Court.

We now know much more than we did fourteen years ago about how small children can easily be influenced and manipulated through improper procedures, and to do so to them in order to have them divulge unreliable stories about events including abuse. The fields of psychology, psychiatry, as now persuasively shown by very well respected new research and studies on child development, they overwhelmingly accept how dangerous to accuracy are investigations like the ones that took place in this case.

Law is also catching up. The justice system is a slower, more deliberative body, perhaps for good reason. We are cautious to change, slow to adjust, but we too no longer easily conclude that young children could never be mistaken when they allege abuse.

The evidence in this case is nothing short of overwhelming with improper interviewing techniques. The bias toward the Amiraults by investigators and interviewers from the beginning. Parental and other family influences. All of it leading to these tragic results.

There are so many examples in the evidence in this case of the improper procedures that it would take many, many days for me to go through them. But I have one example in particular that I wish to read for the record because it shows the unfortunate procedures that were done here, also related to the photographs that were ultimately admitted, or, not admitted but referred to by the Postal Inspector in the case. Pictures that were denied by the children consistently from the beginning.

For example, the question by Miss Kelley:

"You know how you told your Mummy about Cheryl and Tooky taking your picture. Will you tell me about that, pretty, pretty please?"

And the child shakes, "No."

"Why not>"

"They did not take my picture."

"Who took your picture?"

"No one."

"Didn't you tell your Mummy that?"

And she shakes her head, "No."

"Who did you tell then that Miss Cheryl and Tooky took your picture, you tell me?"

And it's inaudible.

"Did someone else take your picture?"

She shakes her head, "No."

"Did anyone ever take your picture>"

"No"

"No one ever, ever, ever took your picture?"

"No."

"What about your Mummy, did she ever take your picture?"

"No."

"Your Daddy?"

"No."

On an on; refusing to take 'no' for an answer and it's only one example of the overwhelming evidence in this case of how investigators, however well intentioned, just would not take no, and overwhelmed these kids. And it ultimately led to trial testimony about photographs from each of these kids and the admission of the testimony of a Postal Inspector.

So, the errors were grievous.

And I want to refer to one portion of the final argument of the Prosecutor at the trial who said as follows:

"There is not one shred of evidence, despite what the defense would like you to speculate on, Jurors, in this case, that any parent, social worker, police officers, ever suggested to these children the sexual assaults that they disclosed to their parents."

It is incredible to this court, in the face of the evidence before this jury, that this kind of statement was made to this jury except for one very reasonable explanation. Even an intelligent, experienced, well-intentioned Prosecutor fell prey to what all of us thought back in the mid nineteen eighties which is: There is no way kids would ever make these stories up. Common sense tells us that.

And the thing about this case is even if intelligent, experienced, well-intentioned Prosecutors fell victim to that, one can easily understand why juries would in the absence of the newly discovered evidence.

No system of justice is perfect as long as human beings work in it. We have always hoped ours is among the best. But even more importantly than whether we're the best or not, the significance for me is the day-to-day struggle to do justice.

Juries make mistakes; Judges make mistakes. Today I am not making a mistake.

Now this does not make us bad people, particularly when we can say to ourselves genuinely: "We've made an error and we will do what we can to correct that error."

One thing I always know is true: police make mistakes; prosecutors make mistakes; investigators and others in child welfare also make mistakes. This too does not make them bad people. They are human too. But owning up to mistakes, even serious ones, is far from being a sign of weakness; it is evidence of courage and strength.

The Court's decision today is one fallible human being's attempt to carry out his responsibilities as a Judge. Something I have always tried to do being fair to both sides. even handed, reviewing all the facts openly and respecting the law and applying the law to the facts. In the end, this leaves me with the utmost confidence and certainty to rule in a way that attempts to correct an injustice.

My oath as a Judge asks me to do no more than that but it also requires me to do no less.

The court will stand in recess.

(WHEREUPON COURT WAS IN RECESS.)


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