Judge Borenstein's decision-- Part III-C

12 Jun 98

Go back to table of contents.

Scroll back to Part III-B, "The Newly Discovered Evidence."

[begin page 26]

C. The Child Witnesses

The investigations and interviews in this case exemplify the merger of two tragedies: on one hand preventing anyone from ever really knowing whether these child witnesses were sexually abused, and on the other, jeopardizing the liberty of innocent people.

When the newly discovered evidence is applied to the facts of this case, the Court is led to two inescapable conclusions: first, the interviewing techniques used with these children were highly suggestive; and second, these techniques rendered their testimony unreliable.

As the facts demonstrate, from the outset the investigators were biased against the defendant, her brother and her mother. This was exemplified by the way investigators, interviewers and even parents ignored incredible claims of abuse by these child witnesses including talking robots, being tied naked to a tree in front of a school, the torture of animals in public. Through suggestive interviewing and other heavy handed influences they funneled these incredible claims down to allegations against the Amiraults.

The investigations into each child's allegations of abuse culminated in the merger of two tragedies: no one will ever know for certain if these children were sexually abused, jeopardizing the liberty interest of innocent people.

[begin page 27]

1. JO

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 the suggestive interviews, the record indicates a strong likelihood that JO was subjected to parental pressure to disclose and that discord in her home may have contributed to her alleged behavioral symptoms. Allegations made by JO against the defendant, as well as the revelation of physical and behavioral symptoms of sexual abuse were made only after the suggestive and coercive interviews. Based on the evidence, the reasonable inferences I draw from it, I find and conclude that JO's testimony is unreliable.

JO was born in October, 1980. (Ex. 2A-215) She attended FADS three days per week from April, 1981 until September, 1984. (Ex. 2A-215) Although Mother

[begin page 28]

and Father were impressed with FADS, prior to its closing Mother had decided to take JO out of FADS solely for financial reasons. (Ex. 2A-220) Mother and Father had never raised a single issue or concern about the quality of care JO was receiving at FADS, nor had they noted any behavioral or physical symptoms.

Disclosure History

JO's Mother learned of Gerald Amirault's arrest on September 12, 1984. (Ex. 56, 5/14-15) On the same day, Mother attended a meeting at the Malden Police Station where parents were told: "God forbid you say anything good about the people (the Amiraults) or your children will never tell you anything." (Ex. 56, 5/56). At the same gathering a social service representative went over a list of symptoms of sexual abuse. (Ex. 56, 5/14-15) The parents were also instructed to pick a comfortable time to ask their children about how they felt or if there was anything they didn't like about school. (Ex. 56, 5/14-15)

Mother and Father began questioning JO after the allegations became public. On September 13, 1984, Mother asked JO about the magic room. (Ex. 56, 5/15) JO acknowledged its existence. (Ex. 56, 5/15) Mother terminated the conversation and contacted her pediatrician Dr. Aeschilmann. She took no further action at that time, as she was about to give birth to her second child. (Ex. 56, 5/15).

One week after the baby's birth, on October 1, 1984 , Mother contacted

[begin page 29]

Steve Healy, a Malden police officer. He instructed her to take JO to her pediatrician for an exam and to ask JO about school but to be careful not to show any emotion. (Ex. 56, 5/17 -18)

On October 2, 1984, Mother took JO to the pediatrician, He examined JO internally and JO drew pictures of a clown and a magic room. The pediatrician stated that JO's clinginess to Mother was due to a frightened attachment. (Ex. 2A-221) There is no evidence that the pediatrician found symptoms of sexual abuse.

On October 3, 1984, Officer Healy and Karen Gaughan, a DSS social worker from Lowell, went to JO's home where they interviewed JO in the presence of Mother and Father. Prior to the interview, Father stated that he had asked JO about the magic room and she had said that the "spooky" magic room was in the cellar. (Ex. 56, 5/47, Ex. 2A-216) JO had told Mother that another female child had touched her vagina. (Ex. 56, 5/48, Ex. 2A-220) Father asked JO about pictures and JO stated that Cheryl and Tooky took them. Father described his questioning of JO as more confrontative than Mother's. (Ex. 2A-220) The interview with JO lasted approximately 1 1/2hours and Ms. Gaughan did most of the talking. (Ex. 56, 8/62) Ms. Gaughan testified that she did not suggest things to JO. (Ex. 56 8/77-81) During the interview, JO played with anatomically correct dolls, dressing and undressing them, and she did not seem interested in discussing FADS. (Ex. 2A-221) Officer Healy questioned JO in a leading fashion when he asked her if there were

[begin page 30]

"bad guys" at school. JO replied that "bad guys" had touched penises and vaginas of her friends. She said that Tooky and Cheryl did the touching and denied that she herself was touched. (Ex. 2A-221). Others had their "pants took down" by someone. JO also denied that any pictures were taken. (Ex. 2A-221)

On October 9, 1984, Officer Healy and Gaughan interviewed JO again at home. (Ex. 56 5/21) JO informed Gaughan that if she and Officer Healy left the room, she would talk to Mother. (Ex. 56, 5/21) Gaughan and Officer Healy listened to JO's conversation with Mother from an adjoining room. At that time she informed Mother that Tooky touched her on her vagina in the magic room and Ann Marie walked in and said stop it. (Ex. 2A-219, Ex. 56, 5/22). JO pointed to an anatomically correct doll and said that Cheryl's boobies were bigger and that she knew this because she saw them. (Ex. 56, 8/69-70) JO identified the rear of a black and white anatomically correct drawing as Cheryl. She said that the white adult front views were her parents. (Ex. 2A-223) By the end of this second investigative interview, JO had still not disclosed any allegations of sexual abuse by the defendant. On October 9, 1984, the DSS substantiated the reports of sexual abuse.

Neither of the two interviews was videotaped, however, both the DSS report and the police report completed on the day of each interview clearly indicate that coercive and suggestive interviewing techniques were used which contributed to the unreliability of JO's testimony. For example, DSS notes indicate "As JO was not

[begin page 31]

volunteering, Officer Healy asked her directly about "bad guys" at school. (Ex. 2A-222) It is very important to note that Officer Healy's notes directly contradict Gaughan's recollection of the encounter insofar as they indicate that JO volunteered that information. The notes state, "she then stated that there were some bad guys at the school." (Ex. 2A-217) Another example of the suggestive interviewing techniques were employed in these interviews comes from the following: "Every time school was brought up or anything suggested sexual activity, she[JO] changed the subject or just ceased talking." (emphasis added) (Ex. 2A-221) Finally, Gaughan wrote the following in her report of the October 3, 1984 meeting, "Worker asked while dolls were being undressed, if she ever took her clothes off. At first JO totally denied this, then said, 'going to bed and taking a bath.' After encouragement she added 'at the doctors'". (emphasis added) (Ex. 2A-221) Gaughan's own reports seriously undermine her testimony at trial that nothing was suggested to JO. It is of great significance to this motion, that prior to these two highly suggestive interviews, JO never made any disclosures; she showed no physical or behavioral symptoms of sexual abuse, and neither she nor her parents had ever complained about FADS. There was no evidence that this was anything but a well-adjusted child. This image did not fit the investigator's view of the case; thus they sought to extract from her what they had decided had occurred.

On October 12, 1984, Father canceled a scheduled interview that DSS and the

[begin page 32]

police had with JO, because he insisted on being present at the interview and was unable to attend on that date. (Ex. 2A - 237) Father appeared to be upset at the way the investigation was being handled. (Ex. 2A - 237)

Mother questioned JO on October 12, 1984. Mother claimed that JO told her that Tooky touched her vagina, put a key in her vagina, Cheryl had shown her bum, and "Robert" had slapped her in the face. (Ex. 2A-219) Mother also expressed concern to Officer Healy that she was worried that Father may harm the perpetrator. (Ex. 2A- 237)

Mother herself questioned JO again on October 14, 1984. Mother asked JO to show her "how to play Miss Cheryl". JO stood up and lifted her nightgown, took off her underpants and stuck her "bum" out. (Ex. 2A-225; Ex. 56 5/23-24) Mother told the DSS worker that she wanted DSS and the police to continue questioning JO so they (the Amiraults) "won't get off". (Ex. 2A-225) This leading, biased questioning by a parent is one of the most dangerous means of seeking to obtain a truthful account from a child. This approach makes a child's version unreliable, because it is suggestive, biased, and no child will ultimately - in the face of this pressure - not reveal "something happened."

JO vehemently and consistently denied being abused on three separate occasions, October 24 and 31, 1984, and March 20, 1985, when she was evaluated by Susan Meyer, L.I.C.S.W. Despite JO's adamant denials, Meyer nevertheless

[begin page 33]

concluded that themes of abuse or rescue in her play suggested that she was attempting to cope with a traumatic event or events. (Ex. 2A-213)

The Susan Kelley Interview

Susan Kelley interviewed JO in mid-December, 1984.

Interviewer Bias

Kelley's bias or her "agenda", to get JO to make allegations of sexual abuse against the Amiraults, is reflected through her consistent use of suggestive interviewing techniques. For example, JO stated that she saw the penis of her father and that of her father's friend George. (Ex. 2B-258-260) No follow-up questions were asked regarding Father or George, because apparently Kelley had decided the Amiraults were guilty and no one else ought to be investigated. Instead, Kelley pursued a line of questioning pertaining only to FADS: Q Yeah, but did you ever see anybody's dinky at Fells Acres? A: No. (Ex. 2B at 260) As the videotape shows, the inter-view is replete with improper interviewing techniques:

[begin page 34]

[begin page 36]

    The repetitive questioning regarding pictures resumed later in the interview: Q: Did anybody take Bert's picture when he went to Fells Acres? (Ex. 2B-247)

    Toward the end of the interview comes a prime illustration of Kelley's inability and unwillingness to take "no" for an answer. Kelley asked JO the following while looking at anatomically correct drawings:

      Q. See how this little girl doesn't have any clothes on?

      A: Yeah.

      Q: Did anybody... are they going to take her picture when she did didn't have her clothes on?

      A: No. (Inaudible)

      Q: Well, I was just wondering cause maybe somebody took her picture without her clothes on.

      A: No.

      Q: (Inaudible) I don't know what do you think?

      A: I don't know ... with her clothes.

      Q: Well I was just kind of wondering ... maybe they did take her picture without her clothes on. That's what I wanted to find out. I thought maybe she would tell me.

      A: What?

      Q: The little girl ... think she would tell me if someone took her picture with her clothes off...

    Not only did Kelley refuse to take "no" for an answer, but she also persisted in leading JO. Yet another example of repetitive questioning occurred when, four times

[begin page 37]

In early 1985 JO began therapy at Children's Hospital. In January, 1985, JO, her Mother, and another former FADS student were all driving in a car together. Both mothers begin questioning the children about FADS. (Ex. 2A-213) This is one of the numerous examples throughout this case where parental pressure is applied to these children.

J0's First Disclosure

In February, 1985, six months after the initial allegations surrounding this case became public, intense pressure from parents and law enforcement, and Kelley's suggestive interview, JO made her first allegation that the defendant sexually abused

[begin page 39]

her. Mother apologized to JO for sending her to FADS and explains that she did not know what was going on there. In response, JO allegedly disclosed that Tooky touched her on the vagina and she had to kiss Cheryl and Vi on their vag1nas. (Ex. 56, 5/26-27)

In preparation for defendant's trial in 1987, two members of the District Attorney's office, including one of the assistant district attorneys who prosecuted the case, interviewed JO about FADS. (Ex. 56, 5/194-195) JO practiced questions with the assistant district attorney at least four times prior to trial. (Ex. 56, 5/194-195) JO did not testify at Gerald Amirault's trial in 1986.

Trial testimony

JO's trial testimony differed greatly from the initial disclosures she made to DSS workers and her parents. JO's testimony undermines the argument of the Commonwealth that the children's testimony is "chilling in its consistency." In fact, the only thing chilling in its consistency in this case is the manner in which the children were interviewed and pressured, all in the face of denials. For example:

At trial JO made the following allegations against the defendant:

    1. Cheryl (and Vi and Tooky) used to take her to the magic room when she took breaks. (Ex. 56, 5/151);

    2. JO had to touch Miss Cheryl's bum while Cheryl's pants were off. (Ex. 56, 5/152) and

    3. JO had to take her clothes off in the magic room in Cheryl's presence and Cheryl would take pictures. (Ex. 2B at 152) and Tooky took pictures while Cheryl got the camera ready. The camera was tall, long-footed and had three legs. (Ex 56, 5/158-159)

Nowhere in the record, prior to the trial testimony, does JO make allegations to anyone about having to touch Cheryl's bum while Cheryl's pants were off or having to take her clothes off in Cheryl's presence.

[begin page 41]

Behavioral Symptoms

At trial, Mother testified that JO exhibited the following behavioral symptoms, none of which were reported to teachers, medical personnel, or anyone else until after the September 12, 1984 meeting at the police station.

During her last six to eight months at FADS, JO would cry as Mother dropped her off at FADS. (Ex. 56, 5/29) After JO stopped attending FADS she did not want to go anywhere without Mother. (Ex. 56, 5/30). She experienced difficulty sleeping. She wet the bed two to three times per night and did not want to go to the bathroom alone. (Ex. 56, 5/30) JO became rebellious towards Mother. (Ex. 56, 5/30) She became increasingly occupied with people's bodies, masturbated and asked Mother to rub her vagina. (Ex. 56, 5/31) On one occasion, JO told Mother that she put a hole in the crotch of her pajamas by trying to insert a flashlight between her legs. (Ex. 56, 5/33) It is inconceivable - and frankly incredible - to this Court that over the course of six to eight months Mother had observed all of these symptoms, yet told no one. The only possible explanation, which the newly discovered and all of the evidence before me makes clear, is that children and parents were overwhelmed by the outrageous interviewing and other pressures brought to bear on them. Honest, but mistaken, children and parents started to believe what investigators want them to, rather than recalling actual events.

[begin page 42]

Physical symptoms

In December 1984, Dr. Emans, a pediatric gynecologist and a witness for the Commonwealth diagnosed JO with mild vulvitis with redness around her labia minora and slightly out to the labia majora. Dr. Emans testified that it was more common to see vulvitis in sexually abused children than children who have not been sexually abused. (Ex. 56, 5/39)

Other Factors Bearing on Behavior

Indicative of the interviewer bias in this case, several other factors present in JO's life while she was enrolled at FADS and during the investigation were ignored by investigators as possible explanations for her alleged behavioral problems. Mother and Father were experiencing domestic problems. (Ex. 56 5/38) Father had a problem with drug abuse. (Ex. 56, 5/38) At one time, Mother wrote a letter to FADS instructing the staff not to let JO's Father pick her up from FADS under any circumstances "unless specified by me, personally." (Ex. 56, 5/39-42) Mother gave birth to JO's only sibling on September 18, 1984, one week after the allegations in this case first surfaced. The fact that the aforementioned issues were dismissed by investigators clearly indicates the presence of interviewer bias against the defendant in this case.

[end page 42]

Scroll ahead to Part III C2, "The Child Witnesses: JB's testimony."

Go back to table of contents.