Judge Borenstein's decision-- Part III-C3

Child Witness #3: MT

12 Jun 98

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3. MT

Although all four children who testified against the defendant were subjected to manipulative and improper pressure, arguably, MT was subjected to even more blatant, coercive and suggestive interviews than any other child witness. Before her first interview with Susan Kelley in November, 1984, MT had been interviewed at least eight times by her parents, law enforcement and medical personnel. Although none of these interviews prior to the Kelley interviews were videotaped, the reports from some of these interviews clearly show that MT was exposed to multiple interviews in which she was the target of a barrage of suggestive and leading questions about what, not if anything, happened at FADS. These interrogations were conducted by individuals who had already decided what had happened to MT. The goal of these investigators was not to learn in a fair manner what, if any, abuse had occurred, rather to convince the child of what they had decided they already knew. Whether this was well-intentioned is irrelevant, as the result was dangerously unreliable.

After having been subjected to numerous suggestive interviews and never disclosing abuse, MT began to make disclosures that were incredibly inconsistent. This pattern is exactly what the newly discovered evidence now shows us are the

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dangers with unfair investigations of young children. For example, MT's initial disclosures involved "Al" punching her and touching her on the vagina. By the time she testified at trial, however, MT makes no mention of "Al". Similarly, MT talked to Kelley about a "bad lady clown", but she did not mention a lady clown at defendant s trial.

No independent evidence exists to corroborate MT's disclosures. The record shows that she exhibited medical symptoms consistent with sexual abuse before she ever attended FADS. While attending FADS, and after, she showed similar symptoms, but as her own pediatrician testified at trial these were consistent with medical problems other than sexual abuse. This is far from dispositive on the question of whether MT was sexually abused by anyone, let alone the defendant.

The same can be said for the alleged behavioral symptoms exhibited by MT. For example, on a visit to MT s pediatrician on September 13, 1984, Mother reported no physical or behavioral symptoms. She told the pediatrician that she was not concerned about sexual abuse, because she did not think that MT had been abused at FADS; however, a mere six days later Mother reported to a DSS worker that she was concerned that MT may have been abused because MT had been exhibiting several behavioral and physical symptoms over the past six months including loss of appetite, sleeplessness, increased masturbating and vaginal soreness. Mother had never brought these symptoms to the attention of anyone and she did not pursue these concerns by scheduling a follow-up appointment with her pediatrician

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subsequent to September 13. Father did contact a lawyer, however, and subsequently, in October, 1984, filed a lawsuit against the Amiraults. Even if Mother did not associate MT's alleged symptoms with sexual abuse, and this Court is not suggesting that she should have, it is incredible that Mother would not have reported any of these symptoms to her pediatrician six days earlier or anyone else, if the child had been experiencing them for the past six months.

Therefore, I find that MT's testimony is unreliable.

MT was born on August 19, 1980. She first attended FADS in January, 1983 when she was two and one half years old and she left FADS in September, 1984, when the school closed and she was just four years old. She went to school Mondays through Fridays from 8:00 a.m. to 5:00 p.m. (Ex. 2A-269)

Disclosure History

Mother learned of Gerald Amirault's arrest on September, 7 1984 through the media. MT was first questioned about FADS on September 8, 1984 when Mother asked her if she was happy there and if "anything weird" had happened there. MT said that she was happy at school and that nothing weird had happened there. As of this date, neither her Mother (or anyone else for that matter) had ever raised a single concern about MT to anyone.

Mother received more information about the closing of FADS from a telephone conversation she had with a friend on September 11 or 12, 1984. On

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September 12, Mother attended the meeting at the Malden police station after which she did not question MT for approximately one week. (Ex. 56, 2/80) At some point after the Gerald's arrest, Mother was told by police that "no" may mean "yes" and that she should talk to MT about FADS.

On September 13, 1984 Mother took MT to see her pediatrician, Dr. Guthrie. Mother did not express any concern to him that MT had been sexually abused and did not report to him that MT had ever had any behavioral or physical problems. Dr. Guthrie gave MT a clean bill of health and there was no evidence of abuse.

A DSS report dated September 17, 1984 stated that on September 15, 1984, MT told Mother that at least four or five of her teachers had hit her more than once. (Ex. 2A-296)

On September 17, 1984, Mother went to the Malden Police Station because she suspected that her daughter had been exposed to some sort of abuse. (Ex. 2A-289) Mother reported that MT had told her that someone named "Al" had done some things to her. (Ex. 2A- 289) The officer advised her as to "the type of questions" to ask her daughter. Mother told the officer that she would talk to her daughter over the next few days and "if she reveals any positive results" she would call him. (Ex. 2A-289) On September 17, 1984, Mother questioned MT, because Mother s live-in boyfriend, a police officer, SD, told Mother that MT had made allegations against FADS. (Ex. 56, 2/88) The nature of the conversation between MT and SD remains unknown. It is reasonable for this Court to infer that as a

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police officer, the boyfriend of MT's mother, took an active role in inquiring of his "step-daughter". Even if understandable, such activity poses serious risks to obtaining accurate and reliable information from a child. It is also clear that Mother took an active role and greatly influenced MT. After dinner that evening, Mother asked MT to tell her about the "secret" at FADS. MT responded that "some parents don t love their kids and try to send them away." Because MT appeared upset, Mother says she ended the conversation. (Ex. 56, 2/91)

On September 18, 1984 while in the bathroom of their home, MT disclosed to Mother that Cheryl had inserted a purple wand in her "bum" and vagina. Mother testified that MT made this disclosure without prompting. Mother remained calm. (Ex. 56, 2/93) Despite Mother's testimony to the contrary, it is difficult to believe that Mother did not question her daughter at all over the few days following Mother's visit to the police station on September 12, 1984 when the police report indicates that questioning MT was exactly what Mother intended to do.

Mother contacted DSS the following day and while speaking to DSS worker, Judith Kirwin, on the phone she told her that for the past six months MT had nightmares, was clingy, was masturbating more than normal and had vaginal soreness. (Ex. 2A-302) Mother also informed Kirwin that MT had made the following disclosures:

MT overheard part if not all of this conversation. In her report, Kirwin noted that she could hear MT in the background correcting her Mother as she reported this information to Kirwin.

On September 20, 1984, Judy Kirwin and Detective John Canton went to interview MT at her home. Mother was present for the interview. According to Mother's trial testimony, neither Kirwin, nor Detective Canton ever conveyed any factual information regarding allegations of sexual abuse; however the written report of the interview shows otherwise: "MT refused to elaborate on these topics [what happened at FADS] and would have to be led back to the subject..." (Ex. 2A-290) Moreover, the report indicates that Mother asked leading and suggestive questions of MT. After MT reported that the clown hurt her back, Mother asked "Did he hurt your bum, MT?" MT did not respond. (Ex. 2A-308)

According to the police report, Kirwin conducted most of the interviewing and MT told her the following: Someone at the school told her that her mother would be taken away and killed if she told anything she was warned not to talk about; MT was made to play dress up with her best friend at school while pictures were taken; a clown hurt her in the back, grabbed her shirt, hit her in the belly and chased her. One time she hit him and escaped; Miss Vi and Miss Angel hit her; Miss Vi pulled

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her pants down to spank her; she saw a penis and it was called an "elephant"; Al and Tooky punched her in the belly; Al punched everyone, and Al had a camera that was on the stand and Tooky had a camera that had pictures that came out of the front. Kirwin used drawings of nude pictures and anatomically correct dolls during the interview.

On approximately September 19, 1984, Mother, on her own initiative, after seeing additional media coverage of the investigation of FADS and speaking with MT, took MT to Children s Hospital. There, MT met with Dr. Renee Brant, the Commonwealth's expert at trial. MT revealed that Al had told her that he was taking her to the zoo, but instead he took her to Vi's house and hurt her. Cheryl had taken the purple wand and put it in her bum and Tooky had taken pictures. (Ex. 56, 2/105) Subsequently, Dr. Brant saw MT once a week until April, 1985, when MT began seeing a therapist in Malden and where she received treatment until April, 1986. (Ex. 2A-270)

On September 24, 1984, Judy Kirwin and Detective Canton interviewed MT again. (Ex. 56, 2/115, Ex. 2A-292, 308) Even though the interview was not videotaped, the bias of Kirwin against the Amiraults is evident as this report is replete with suggestive interviewing techniques, including leading questions and giving MT the "right" answers. During the ninety minute interview, MT described a "bad clown" and a "good clown". Under MT's direction, MT and Kirwin drew the bad clown. Kirwin then asked MT if she touched the clown's penis and after stating that she had,

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Kirwin asked MT if she had touched the penis with her mouth. Again, MT stated that she had, so Kirwin gave MT the doll so that she could demonstrate how she touched the clown's penis. MT then simulated fellatio on the male doll. She also reported that the bad clown touched her in the "bum" and vagina with a magic wand. (Ex. 2A-309) Kirwin then gave MT "permission" to demonstrate this on the doll, at which point MT inserted crayons in the doll's vagina and bum. MT further revealed that she had her picture taken in the magic room with Vi's camera and that Tooky and Vi threatened to kill her if she told. Kirwin asked MT if she ever went swimming. When MT responded that she had and that the teachers helped them swim, Kirwin did not pursue this line of questioning to determine if that is where MT may have seen a penis or been touched. Kirwin never explored the distinct possibility that MT may have been touched in an innocent way. After this interview, DSS substantiated the allegations of abuse.

On the evening of September 24 or 25, 1984, MT introduced the topic of FADS while in the bathtub. She told Mother that they hurt her in school and demonstrated by holding her fingers out and jamming them into her vagina. Mother quickly removed MT from the tub, reassured her and tried to remain calm.

A day or two later, according to Mother, MT initiated another conversation in the bathtub. This time MT showed Mother the sexy poses she did for the camera. (Ex. 56, 2/129)

On September 28, 1984, Kirwin visited MT one last time to "wind up her

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interview with the child." Kirwin informed MT that she was "helpful" in discussing school. (Ex. 2A- 314)

On November 1, 1984, Detective Canton spoke with Mother. Mother reported that MT was generally okay, but showing some mood swings and occasional depression. (Ex. 2A-294) Mother reported that MT (at some point which is unclear from the record) told her that Cheryl, Al and the clown put their mouths on her vagina and that MT repeated that she had put her mouth on the clown's penis. (Ex. 2A-294)

The Susan Kelley Interviews

On November 12, 1984 and once again either in late 1984 or early 1985, Susan Kelley interviewed MT. Throughout the interview, Kelley used numerous suggestive interviewing techniques. Prior to the first interview, Mother told MT that Kelley wanted to talk about FADS. (Ex. 56, 2/152, Ex. 2B-1-2; Ex. 31). On the videotape, MT appears to be a happy, relaxed and well-adjusted child, more interested in playing than answering Kelley's questions. After much coercion from Kelley, MT made the following disclosures: 1.) a lady clown and another clown made her take her clothes off (Ex. 2B- 357, 382); 2.)that the defendant put a thermometer in her bum and vagina; 3.)Tooky and Vi were not nice and 4.) the bad clown made her touch his penis while she was outside naked, MT again, at the interviewer s urging, demonstrated how on the anatomically detailed doll. (Ex. 2B-357-359)

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Interviewer Bias

Kelley's predisposition against the Amiraults is evident through her use of suggestive interviewing techniques throughout the interview and her utter failure to follow-up on some of MT's more incredible allegations. {i.e. fellow classmates laughing at her as she and other children were naked outside FADS, that five or six clowns were present when MT put her mouth on the clown s penis. (Ex. 2B-358)} During the course of the interview Kelley employed several suggestive interviewing techniques:

MT s testimony at Gerald Amirault's trial

At Gerald Amirault's trial in 1986, MT testified that Al and Tooky took pictures of her in the magic room while her clothes were off and that Tooky touched her on the vagina and the bum. (G 58, 61/62) The bad clown made her put her mouth on his penis. On cross-examination, MT denied remembering that she told Kelley that the clown took her clothes off outside of the school and said "Ha Ha You're naked." (G/72-74) MT testified that she lied to Kelley when she told Kelley that the bad clown was a lady clown. Vi told her not to tell or else her Mommy would go away and be killed. (G/65)

Trial testimony at this Defendant's Trial

By the time MT testified at the defendant s trial in 1987 she was six years old. Two and one half years had passed since she last attended FADS during which time

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she had been subjected to multiple suggestive interviews, had undergone extensive therapy with a psychiatrist possessing a clear bias towards the defendant, and had testified at the trial of Gerald Amirault.

At this defendant's trial she gave the following testimony:

MT did not testify to several of her prior disclosures, such as being naked outside while other students laughed at her, or the existence of a bad lady clown at FADS.

Behavioral Symptoms

At trial, Mother testified that five to six months after MT began attending FADS she began to notice certain behavioral changes in MT: behavioral changes that Mother never mentioned to anyone, until after she became wedded to the idea that the defendant had sexually abused MT. These behavioral changes were first reported over the telephone to Kirwin on September 19, 1984. During that conversation, Mother told Kirwin that over the past six months MT had become very clingy, did not want to go to school, was not sleeping well, every night complained that her vagina hurt, was masturbating more than normal, and was interested in her Mother's

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body.

At trial Mother also testified that MT became unusually interested in Mother's body, putting her hands between Mother's legs and touched Mother's breasts. (Ex. 56, 2B/151) MT experienced a loss of appetite.

After the allegations had been substantiated by DSS, Mother indicated that MT's behavior worsened. She had smeared her feces on the bathroom wall and had regressed to "baby talk". Mother did not testify to these symptoms at trial.

Physical symptoms

In June, 1981, and in February, 1982 MT was treated for a yeast infection. (Ex. 56, 14/48, CA 26-27). MT had not even enrolled at FADS at the time. In March 1984, while MT was enrolled at FADS, she was treated for vaginitis and a urinary tract infection. (Ex. 56, 14/41). MT's pediatrician, Dr. Guthrie, would not conclude, based upon this finding, that MT had been sexually abused. (Ex. 56, 14/15) Dr. Guthrie, testified that on September 13, 1984 he conducted a careful visual examination of MT's external genitalia and all of the structures appeared to be intact and normal. (Ex. 56, 14/16-17) Specifically, he found no vulvitis or erythema (redness). (Ex. 56, 14/17) Mother informed Dr. Guthrie prior to the examination that she had decided to bring MT to see him upon the suggestion of the Malden Police Department, because MT had been a student at FADS. According to Dr. Guthrie, Mother was very complimentary towards the Director of FADS (presumably

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Violet Amirault) and felt that MT had no symptoms of sexual abuse. (Ex. 56, 14/7, 11) Mother testified at trial that MT's vaginal pain continued until just after FADS closed; however, this and a host of other alleged behavioral symptoms were not reported to Dr. Guthrie during the visit on September 13, 1984, nor had they been reported to anyone else.

Dr. Emans examined MT in October and again in November, 1984 when she was four years old. (Ex. 56, 5/62). Dr. Emans observed that she had vulvitis, although Mother told Kirwin after the examination that there were no signs of physical trauma. (Ex. 56, 5/62, Ex. 2A-316) Dr. Emans could not testify to a reasonable or probable medical certainty as to what caused the vulvitis observed in MT. (Ex. 56, 5/63)

Other Factors Bearing on Behavior

Indicative of the interviewer bias present in this case, investigators completely overlooked any other possible explanations for the alleged changes in MT's behavior. MT had lived with both of her parents until she was thirteen months old, at which time she was sent to live with her father while Mother went into an alcohol abuse treatment program. (Ex. 2A-269) For three and a half years, Mother's boyfriend SD, a police officer lived with them. He became a father figure to MT; however, as of January 21, 1986 there had been no contact for some time between MT, her Mother and SD. (Ex. 2A-269) In addition, MT's alleged "clinginess" could also have been

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attributed to both her separation from Mother as a young child, and a separation in March, 1984, while Mother was hospitalized for surgery.

Father, divorced from Mother, was very angry and upset, according to Mother. (Ex. 2A-315) By October 2, 1984, Father had already hired an attorney, and subsequently filed a civil suit against the Amiraults.

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