No Finality in Fells Acres

By Bernard Rosenthal


[Bernard Rosenthal is a professor of English at Binghamton University and is the author of Salem Story: Reading the Witch Trials of 1692 (Cambridge University Press, 1993). The following article was submitted in response to a Boston Globe editorial applauding the Massachusetts Supreme Judicial Court's decision sending Cheryl Amirault LeFave back to prison. Not surprising, The Globe – still stubbornly hostile to justice in this and similar cases – refused to print the article. The unnamed member of the Middlesex District Attorney's office is Assistant DA Catherine Sullivan, who argued the case against Cheryl Amirault's new-trial motion before the Supreme Judicial Court. – Bob Chatelle]

On August 19 The Boston Globe published an editorial entitled "Fells Acres Finality." It is hard to imagine what the writer of that caption was thinking in suggesting that this case can end with the decision of the Massachusetts Supreme Judicial Court to overturn Judge Borenstein's decision that Cheryl Amirault LeFave deserves a new trial. The editorial ends with the assertion that in upholding the original conviction of the Amiraults, "there is no reason to believe that [the judicial system] has failed here"

In recognizing the controversial nature of the case, the editorial writer observes that no case in modern times has so "polarized feelings" in a judicial case in Massachusetts since the Sacco and Vanzetti case. Although all analogies are risky, a better one in this instance would be the Salem witch trials. Certainly, the idea of appealing to that injustice in 1692 is so widespread that people claim "witch hunts" in incidents not remotely analogous to what happened then, as for example, in the evocation of such claims relative to Mr. Starr's case against President Clinton and myriad other instances that appear routinely in the media. However, there is a real analogy to the Salem witch trials in the Amirault case, and before the idea of bringing "finality" to the Amirault case is pushed too far, we would do well to consider the parallels.

In the 1980's and into the 1990's, across America cases of remarkable similarity began to occur. Charges of child abuse in day care centers, beginning most notably in California in the McMartin case, began spreading east across the United States. The pattern in the cases was strikingly similar. A charge of sexual abuse was made, children were questioned by authorities unacquainted with cutting edge research on how false memories are created, and children, denying abuse at first, came to believe that they had been abused, and as research has shown so effectively, came to believe in that abuse with greater certainty than might be expected from people for whom there was third party verification of abuse. Included in the stories these children told, were tales that not even prosecutors believed, such as stories of alien abductions. Narratives of the children were eerily similar as the hysteria swept America, and one could predict from narratives of other cases that there would be a story about an abusing clown, as indeed, such a story showed up in the Amirault case.

The authorities allowed as evidence testimony from children even when some of their stories were obviously false. For example, in the Little Rascals Day Care case in Edenton, North Carolina, testimony was given about children being attacked by sharks kept in a pool by the accused. The children claimed to have been taken out on a boat, the sharks released, and so forth. No prosecutor believed this story, and had such tales been told by adults, their credibility would have been laughed at, and no jury would have convicted anybody when witnesses against them told such stories. However, people at Edenton were convicted, because under the new precedent, obviously false stories by children were set aside in the minds of prosecutors and juries, because of the belief that testimony from children needed to be treated differently. Eventually, with the passing of the years, other judgments prevailed and innocent people, after years in jail, were released. In the Amirault case, I was personally told by a member of the district attorney's office that the district attorney certainly did not believe the tale of the child tied to a tree and whipped, but simply gave that information to the grand jury–"put it out there," I believe were the exact words. I emphasize quickly, that this very courteous and helpful person truly believed in the guilt of the Amiraults.

Where is the analogy with the Salem witch trials? It is simply this: In 1692 accusers, as in the modern day care cases, put forth narratives of experiences they sometimes shared, but never with independent verification from someone who was not an accuser. The heart of the episode depended on the claims of the accusers versus the denials of the accused. Jurors were forced to choose between two sets of competing claims with no independent verification for any of them. Although not all of the accusers were children, many were, and the idea of protecting the children played a heavy role in the prosecutions. Jurors made judgments on the knowledge available to them. Accusers claimed that the specters of the accused hurt them, and in spite of denials from accused people jurors credited the claims of the accusers. This kind of uncorroborated evidence became known as "spectral evidence," and on the basis of that evidence convictions routinely occurred. Contrary to popular, modern, representations, all this took place in an orderly manner under judicial procedures of a special court set up to investigate the outbreak. Within the rules of the day, the accused people had fair trials, just as the Amiraults had a fair trial.

What brought the trials to an end was the growing belief by the elites in Massachusetts Bay Colony, especially the clergy, that spectral evidence could not be trusted. Eventually, the governor of the colony, Sir William Phips, heavily influenced by one of the leading ministers, Increase Mather, terminated the special court. The trials continued, but under a new court where spectral evidence was not admissible. Under this court, beginning in January, 1693 the convictions largely stopped. Jurors acted on new understandings. The decision of Phips was controversial, and his own Lieutenant Governor and head of the court, William Stoughton, bitterly opposed the actions of Governor Phips. This conflict came to a head when, even under the new rules, a few people were found guilty. Governor Phips took the position that the case against these people was no stronger than the case of people being found not guilty as a result of new understandings of the unreliability of spectral evidence. He pardoned those people over the bitter objections of Stoughton. But Governor Phips managed to keep in place the integrity of the judicial system by allowing it to do its work, while at the same time saving it from its excesses.

The Supreme Judicial Court of Massachusetts had no obligation to be informed about what any authority on induced memories from any major psychology department in any major university in America could have told it. The emerging research on induced memory has offered the opportunity, seized on elsewhere, to reassess day care abuse cases, just as new interpretations on the reliability of spectral evidence led to a reassessment of judicial conclusions. Just as spectral evidence could no longer be trusted, narratives by accusing children in day care cases could no longer be trusted. Unfortunately, the Supreme Judicial Court's job was basically to decide whether the law had been followed, whether procedures had been violated, and not to unearth state of the art scientific research. Essentially, in its decision, the Supreme Judicial Court said that Judge Borenstein had no right to introduce into the case an opinion that the basis for the prosecutions was without merit. The court held that he exceeded his authority. I have no reason to doubt the Supreme Judicial Court on this point of law, just as I have no reason to doubt that the Amirault's need to be rescued from a legal decision based on bad, uninformed science. In this sense, the Globe is right that the SJC did not fail. It looked at the law, and insisted that the law be followed.

So we have a situation where people are legally guilty for something that it is highly unlikely that they did. It is unlikely, because the case against them was so strikingly similar to the cases of others around the country that were similarly based on bad science and dissimilarly were resolved with the freeing of unjustly accused people. There are very few believers in the guilt of the Amiraults among those engaged in memory research who have looked at this case.

Whether the Amiraults will be rescued in federal court remains to be seen. Whether the governor chooses to pardon them remains to be seen. It is not as easy these days for governors to take such actions, because the political context is so radically different than in 1692, when a governor was not a career politician, not a person who had to weigh the political implications of his actions in quite the same way as a modern governor does. In that sense, it was easier to be courageous then. But whether the governor acts or not, whether the federal courts act or not, one fact remains strikingly clear. The Globe is simply in error that there is "finality" in the Amirault case. Too many informed people understand that the scientific basis for their conviction was profoundly flawed. Only a prophet can say how this matter will end. Anybody can recognize that a case such as this can never have closure.

Copyright 1999 Bernard Rosenthal. Distribution unrestricted provided this notice is retained.