Judge Borenstein's decision-- Part III-C2 (continuation)

Child Witness #2: JB's testimony in court

12 Jun 98

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Scroll back to Part III-C2, "Child Witness #2: JB"
(JB's second Susan Kelley interview).

JB's testimony at Gerald Amirault's trial

At Gerald Amirault's trial in 1986, JB testified that Tooky was the bad clown at FADS. (G 20/107) She said that Tooky took her to the magic room upstairs where he put a pencil in her vagina and touched her vagina with his hand. (G 20/98)

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The defendant took pictures while Tooky abused JB. (G 20/204) Tooky forced her to eat ice cream from his penis and put his penis in her vagina. (G20/99-101)

Trial testimony

By the time of the defendant's trial, JB's testimony had been suggested to her repeatedly. By this point, JB has truly become a victim of the system. In preparation for trial, JB saw Patty Bernstein and Janet Fine four times. JB was eight years old when she testified at the defendant's trial in 1987, and four years had passed since JB had last attended FADS. JB testified that Miss Cheryl was in the magic room when Tooky made her take her clothes off. (Ex. 56, 4/84). On direct, at first JB testified that she did not remember if Cheryl did something to her that she did not like. (Ex. 56, 4/84) Later, when asked on direct "Who else touched you?" JB replied "Miss Cheryl." (Ex. 56, 4/85). She further testified that Miss Cheryl touched her with a pencil and a thermometer in her vagina and her "bum-bum." (Ex. 56, 4-86, 89) She also testified that Tooky took pictures of her with a camera of the type where the picture comes out. Miss Cheryl also took pictures of JB in the magic room while her clothes were off. (Ex. 56, 4-88) One time, JB saw Miss Cheryl naked in the magic room. On cross-examination, JB testified that Tooky would come and take her to the magic room and after she came back she would tell Miss Carol that she had been at the magic room. (Ex. 56, 109-110)

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Behavioral Symptoms

All of the behavioral symptoms allegedly exhibited by JB were not revealed to anyone earlier than December 19, 1984, when Mother first reported them to JB's pediatrician. Upon the advice of the pediatrician, Mother reported those symptoms to the Malden Police Department that same day. Shortly thereafter, the police notified DSS. JB had been out of FADS for one and one half years and until then she was a happy child with no behavioral or physical problems.

Of course, by the time of trial, subjected to overwhelming influences on her and her child - and with a pending suit for damages - Mother testified that JB had experienced a myriad of behavioral problems while attending FADS. Even though Mother claimed to have had great concern about these problems, she never reported them to anyone - school authorities, medical personnel, mental health professionals, family members or friends. It is only when these alleged symptoms conveniently fit the investigators' view of this case that they surfaced.

At trial, Mother claimed, for example, that JB had a chronic bed-wetting problem that first surfaced in March or April of 1983 (Ex. 56, 3/63) The almost daily bedwetting continued until JB started kindergarten when it subsided to about once a month - well after the date that she stopped attending FADS. (Ex. 56, 3/63-64) In August, 1986, the problem stopped all together. (Ex. 56, 3/65) Had she ever brought

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this to anyone's attention before December, 1984? No.

At the trial, Mother testified that JB had nightmares in May or June of 1983. (Ex. 56, 3/67) She had never had nightmares before that time. JB would wake up yelling "Don't hurt me. Get away. The clown is going to get me." (Ex. 56, 3/68) The nightmares stopped when JB stopped attending FADS. (Ex. 56, 3/68) It is very telling to this Court - and should cause anyone reviewing this case to pause - that in 1987, Mother testified that JB had nightmares about clowns in May, 1983; however, in September, 1984, when instructed by the police to question her daughter about a clown, Mother was unconcerned and never raised any issue about clowns or the nightmares. Even as late as December 1984, Mother had never made any mention of clowns at all, or nightmares, although she did make other notations on a form that she filled out prior to the first Kelley interview with respect to other topics. (Ex. 56, 3/114) This Court finds it incredible that in 1987, at the trial, Mother could so clearly remember these symptoms and her concerns but never shared them with a single person.

Also at trial, Mother testified that while JB was attending FADS, Mother began to have difficulty bathing her. When Mother attempted to wash her vaginal area, JB screamed at Mother not to touch her, not to hurt her and grabbed Mother's hand and threw it away. (Ex. 56, 3/69-70) During this time Mother consulted with Dr. Aechelman, JB's pediatrician who had no concerns about sexual abuse. (Ex. 56, 3/68)

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At trial, Mother testified that in the spring of 1983, JB began to complain of stomachaches in the morning and would say that she did not want to go to school. JB also started acting like a baby and engaging in baby talk in March or April of 1983, and stopped during the end of 1983. Mother also testified that she noticed JB engaging in sexualized behavior in the summer of 1983. JB put toy telephone receivers, toys and brushes up between her legs near her vagina. (Ex. 56, 3/81) Sometimes her clothes would be off and sometimes they would be on when JB engaged in this type of sexualized behavior. (Ex. 56, 3/81 ) JB would also take her clothes off and run around outside naked. Like other behavioral symptoms testified to at trial, these were never raised to anyone until after all the allegations. (Ex. 56, 3/82) At the time this behavior allegedly occurred, nothing was ever said to anyone. Finally, Mother testified that once in August, 1984 and again in October, 1984, the defendant saw JB and her Mother, and both times JB acted very frightened. (Ex. 56, 3/72-77) In October 1984, JB was playing in a park near her home when she ran home saying that she just saw Miss Cheryl near her house. JB locked all the doors and windows.

Physical symptoms

JB never exhibited symptoms consistent with sexual abuse while enrolled at FADS.

Dr. Emans examined JB on January 17, 1985 when she was six years old,

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approximately one and a half years after she left FADS. (Ex. 56, 5/49) Dr. Emans observed that she had vulvitis, redness around her vulva, cracking and fissuring of her labia and a hymenal bump. (Ex. 56, 5/24-25, 49) In girls between the ages of 3-6 years, hymenal bumps can result from: 1. trauma to the hymen; 2. disruption to the hymen (i.e. an object such as a stick, magic marker, a finger) being inserted into it; or 3. simply being born with it. (Ex. 56, 5/72-73) After JB left FADS she had a number of bladder infections. (Ex. 56, 5/51) JB had her first bladder infection in May, 1983. (3/99) JB was treated by a physician and put on medication. She had subsequent infections in August, 1983, November, 1983, February, 1984, and May, 1985. (Ex. 56,3/100-101) She was bed wetting all the time while she had these infections, after she had left FADS.

Other Factors Bearing on Behavior

Indicative of the interviewer bias present in this case, investigators completely overlooked other possible explanations for any alleged changes in JB's behavior. In early 1983, Mother became pregnant. (Ex. 56, 3/115) She gave birth to her third child in September, 1983. (Ex. 56, 3/116) These events could account for some of the behavioral symptoms allegedly exhibited by JB.

This Court finds that the evidence in this motion shows convincingly that JB was subjected to horribly flawed investigatory and interviewing techniques, as well as

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other influences, including parental pressure, and news media coverage. Her testimony is unreliable and no independent evidence exists to support her claims.

Scroll ahead to Part III-C3, "Child Witness #3: MT."

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