Judge Borenstein's decision-- Part II

12 Jun 98

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Since this third motion for a new trial was assigned to me, I have carefully

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reviewed and considered the testimony of the two witnesses who testified before me, and the record in this case which consists of several thousand pages: including memoranda submitted by both parties; transcripts of both the trial and pre-trial hearings; fifty-six exhibits, including the affidavit of one of the defendant's experts, Dr. Bruck, and videotaped interviews with the child witnesses who testified in the trial; dozens of scholarly articles in the field; pertinent cases, and transcripts of both the evidentiary hearing and final arguments held before this Court. This Court is the first in the Commonwealth to consider the defendant's arguments regarding newly discovered evidence.

I have 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 toward 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 injustice. This concern is embodied in Mass. R. Crim. P. 30, which allows

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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 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, 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, rendered the testimony of the child witnesses unreliable, thus violating the defendant's rights to due process. There exists 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 adopting new law.

In today's decision, this Court does not suggest that the serious errors committed in the investigation of the defendant were intentionally done in bad faith. Rather, overzealous and inadequately trained investigators, perhaps unaware of the grave 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

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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 nor 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 Mass. R. Crim. P. 30. When the newly discovered evidence and resulting violation of due process is combined with: the serious constitutional error of depriving the defendant of her right to confrontation under Article XII of the Declaration of Rights; the testimony of the postal inspector which was admitted not only for motive,

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but to support the credibility of the childrens' testimony;//Note 4// 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.

This Court hereby finds and rules that the defendant has more than met the required burden on her motion, and that the interests of justice require 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 grave risk the 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 findings of fact, reasoning and rulings of law.

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Part III, "Findings of Fact."

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