Justice: Denied -- The Magazine for the Wrongly Convicted

 

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Harvard Law School Conference -- A special report

By Carol Clairmont Weissbrod

On November 18, 2000, I attended a conference on the Day Care Child Sex Abuse Phenomenon. Attended by about 200 people, the conference was held at Harvard Law School. It was sponsored by the Criminal Justice Institute of Harvard Law School, and cosponsored by the Massachusetts Bar Association, the Massachusetts Association of Criminal Defense Lawyers, and the ACLU of Massachusetts.

Professor Charles Ogletree, director of the Criminal Justice Institute, made opening remarks. He cautioned that the TV cameras in the room would need to be turned off when Cheryl Amirault spoke because of the gag order imposed by Middlesex DA Martha Coakley.

The five-hour conference was divided into three panels. The first panel was called "Stories of the Accused."

Attorney Michael Snedeker, co-author of Satan's Silence, was the first speaker. He said that most of the day care cases occurred during the 1980s. There were about 100 such cases. However, there was no corroborative evidence ever found in any of the 100 cases. No blood, semen, bodies, or anything else was ever found. In the McMartin case, over 400 children were videotaped. There were no convictions in that case because it was shown that the interrogators had suggested stories to the alleged victims.

The next speaker was Attorney Robert Rosenthal, who represented Kelly Michaels and others. Michaels' was one of the first day care convictions to be overturned. Rosenthal said that in her case, "experts" testified at the criminal trial that children don't lie about abuse. Later research by Drs. Stephen Ceci and Maggie Bruck showed that the memories of children who had been subjected to improper interviewing techniques were not reliable. The conviction was reversed when the court realized that the children's testimony had been tainted by suggestive interviews. Rosenthal reported that the court reversals in these many convictions were always based on showing that the investigations had not been conducted properly.

With the TV cameras turned off, Cheryl Amirault LeFave told the history of the Fells Acres day care center. She talked about her and her late mother Violet's experiences in prison. Then Patti Amirault, wife of still-incarcerated Gerald, spoke of her husband's innocence, and of life raising three children with their father in prison.

The last speaker on the first panel was the Amiraults' lawyer, Attorney James Sultan. In the Amirault case, like that of Kelly Michaels, unqualified investigators had tainted the testimony of the children, making it unreliable. Sultan faulted the Massachusetts Supreme Judicial Court for believing that finality is a more important issue than is justice. The Massachusetts court system has failed in the Amirault case, and now a political solution must be sought. Sultan said that the courts in Massachusetts have lagged behind the press and public opinion, which have turned around dramatically since the first day care convictions.

The second panel was called "The Role of Culture, the Legal System, and the Experts." The moderator was author Wendy Kaminer. The panelists were recently retired Massachusetts Judge Robert Barton, psychologist Dr. Maggie Bruck, author Nat Henthoff, Judge Alan Rubenstein of Pennsylvania and journalist Dorothy Rabinowitz of the Wall Street Journal. Barton, the judge who granted the first new trial motion to Violet Amirault and Cheryl Amirault LeFave, was the first speaker. He told of subsequently receiving a letter from former prosecutor-later Massachusetts Attorney General Scott Harshbarger saying that he (Harshbarger) was proud of the prosecution and conviction of the Amiraults. Barton said that prosecutors, especially those who are interested in higher political offices, take these cases personally. (I was reminded of Dan Ford, prosecutor in the Bernard Baran case, who is now a judge in Berkshire County, Massachusetts. Bernard Baran) Barton remarked that the SJC's decision of finality bothers him more than any other decision he's had to live with as a lawyer or judge.

The next speaker was Judge Alan Rubenstein of Bucks County, PA. He was the district attorney at the time of the Breezy Point day school case and he considered himself a tough prosecutor. After a very thorough investigation, he was unable to find one shred of corroborative evidence. The videotaped children were found to have been coached. Later, he discovered that the Breezy Point case was far from isolated. Cases like these were springing up all over the country. Rubenstein said that the proudest moment he ever had was the case he didn't prosecute.

Next was Dr. Maggie Bruck of Johns Hopkins University, formerly of McGill University. She and Dr. Stephen Ceci of Cornell University have done valuable research into the reliability of children's testimony. She said that disclosures by allegedly abused children show a similar pattern: First, there is a suspicious adult who questions a symptomless child. The child initially denies having been abused. Then, after persistent, suggestive questioning, the child "discloses." Bruck said that despite what prosecution "experts" testify in cases like these, there are no specific symptoms that show a child has been abused. Bruck indicated that some problems in investigations of child sexual abuse cases have been misinterpretation of scientific literature, failure to consider alternate hypotheses, ignoring evidence that conflicts with the hypothesis that abuse has occurred, suggestive questioning, and interviewer bias.

Wendy Kaminer spoke next about cultural forces that contributed to the day care hysteria. Some of those forces were the self-help tradition and the recovery movement. The therapeutic notion seems to be that something really happened if you think it did. She stressed that people should not be encouraged to believe in their delusions.

Nat Henthoff, columnist for the Village Voice, spoke of the failure of the press. He blamed the press for some of the injustices, and he spoke of the negative influence of columnist Anna Quindlen. Henthoff told of the failure of the ACLU to become involved in these cases. He praised Dorothy Rabinowitz for breaking open the Amirault case.

Dorothy Rabinowitz was the last speaker on the second panel. The conference was scheduled after Election Day so Rabinowitz could be there. Ironically, she was covering the election in Florida the day of the conference, and was not expected to attend. But she did arrive on time to speak as scheduled. Rabinowitz said that the Wall Street Journal readers had never heard the "other side" of the story until she reported it. She said it was easy to set the public straight once you reported the facts. She remarked that previously, people believed without question the prosecutors in these cases. "How could so many parents believe in this hogwash?" she questioned. Rabinowitz became suspicious the first time she spoke with the prosecutor in the Kelly Michaels case, who said that Michaels had to be guilty because she didn't wear underpants! Rabinowitz said that now that the day care cases have subsided, these false allegations of child sexual abuse have moved into the divorce courts.

During a question and answer period following the second panel, an audience member asked Dr. Bruck about what happens to children who make accusations of abuse. She said it's been difficult to study this. One thing that is known is that most of those recanting are children who accused their parents. They usually recant in their late teens, although some continue to believe into their twenties. An interesting thing about those who recant is that they cannot remember details of what allegedly happened.

The final panel, called "Where Do We Go from Here?" was moderated by Mary Prosser, Deputy Director of the Criminal Justice Institute of Harvard Law School. Joining previous panel members Rosenthal, Snedeker, Bruck, and Rubenstein were Edward Ryan, president of the Massachusetts Bar Association and author Attorney Harvey Silverglate.

Rosenthal began by saying that none of the "abusers" he or Snedeker have gotten released has offended since being released. He felt that this showed these people were truly innocent because in a truly guilty population there is some recidivism. Rosenthal was not very optimistic about the future. He said the same cheating "experts" are still out there. And prosecutors are not examining past cases to find their errors. He speculated that the continued lack of videotaping child witnesses was due to prosecutors' arrogance. The fact that there is now research available is a positive sign, but he said it's still an uphill battle.

Bruck commented that mandated videotaping of interviews has been helpful in preserving evidence. She lamented that there are still many improperly trained Child Protective Services and police personnel performing interviews of allegedly abused children.

Ryan agreed that false accusations of child abuse have moved into the divorce courts. It is easy for a vindictive wife to obtain a restraining order, thus putting a man forever onto a list of "known" batterers. He pointed out that there are few due-process safeguards, and people in this country seem to be uneducated in the presumption of innocence in our Constitution.

I especially related to the comments of Judge Rubenstein, who followed Ryan. Rubenstein said that prosecutors need to realize that so many of these cases defy logic. Overzealous prosecutors see these cases as a stepping stone to higher office. He concurred with the other panelists who said false accusations have now moved into the divorce courts. According to Rubenstein, this is happening in at least twenty percent of divorces. The accusations start with a father who bathed his child; then the child is cross-examined by a mother who has her own agenda. Rubenstein stated that he has yet to see a case like this in which there is anything but the uncorroborated testimony of the mother. (How familiar this is to me. My own brother has been incarcerated for six years due to false accusations arising from a custody dispute in a divorce. Bruce Clairmont)

Silverglate felt that the future relies on the responsible participation of the news media. He commented on lazy columnists and reporters who tend not to do thorough research. He said there needs to be a concerted attack on the notion that finality triumphs over justice.

In response to questions from the audience, both Rosenthal and Bruck pointed out that when videotaping is done, it is often too late, because the child has already been coached. This is like a tainted identification or a crime scene that has not been preserved. Bruck stated that the videotaping needs to be done when the first allegation has been made. She was critical of "experts" who make up research during testimony.

I attended this conference at the suggestion of my friend Bob Chatelle of the Bernard Baran Justice Committee. My primary interest is in false accusations in divorces. However, there are so many issues that are common to false allegations in both day care and divorce cases. The suspension of logic by the prosecutors and the juries is one issue. Poorly trained investigators, bogus "expert" witnesses, and the assumption of guilt until proven innocent are other factors that have contributed to the convictions of so many innocent parents.

I was very pleased to hear of the efforts of the media in ending the day care hysteria of the 1980s. When my own brother's case was being prosecuted in the early 1990s, there was a lot of media coverage about day care cases on television and in the newspapers. But where are the media now? Surely, the falsely convicted parents have been victimized just as much as the day care defendants. Are not these thousands of wrongfully incarcerated parents as worthy of media attention?

Justice Denied

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