"Finality" -- Did Justice Fried intend to spurn the innocent?

Copyright © 1999, 2001 by Hugo S. Cunningham

first posted 990527
last updated y10301

This is derived from a posting to Usenet newsgroup ne.politics

demas@sunspot.tiac.net (Charles Demas) wrote:

[...] >It does seem that the real truth in this case will never be known.

>The children's testimony seems to be unreliable because of how
>they were questioned, and that is the only evidence in the case.

>Apparently, at this point, it comes down to whether the finding (that
>the children's testimony is unusable) will be allowed to stand or not.

I doubt if the prosecution would have much luck with a new trial, even if they are allowed to let the children (now in late teens) testify again. I got the impression the SJC will pay most attention to the issue of "corroboration" -- given the complete lack of physical evidence, is the parents' testimony that they had observed abnormal behavior before September 1984 credible (even though they didn't report it at the time -- eg the mother of "JB"), and even if some of it is credible, does it really prove that abuse took place at Fells Acres? (If you look through Judge Borenstein's analysis of four child witnesses, you will note that some them had a troubled home life, eg "JO".)

>It also seems like the D.A.'s office seems to be pursuing things
>more out of political interest than in the interest of justice at
>this point, but then, the D.A. is an elected office, and just
>accepting the court's ruling about the inadmissability of children's
>testimony would be a political mis-step. In any event, it's an
>adversarial process, but the prosecution _IS_ supposed to be seeking
>justice, not merely a conviction record.

True. It is a pity that there is so little price to pay for pursuing a bad case. In death penalty cases, a good safeguard, to reduce the death penalty workload faced by Federal courts, would be to provide that if a State's courts allowed a bad verdict (one against someone quite possibly innocent) to go to a Federal Court, then all that State's death penalty cases would be automatically downgraded to life imprisonment.

>It's hard to admit that what you did in good faith, trying to do
>the right thing while questioning children may have compromised
>the validity of the evidence you obtained.

>I don't understand the finality argument presented. It seems that
>the prosecution is saying that there should be no right to appeal
>or bring new evidence when it is allowed by the current process.

Justice Fried's reasoning was somewhat more subtle than that.

The ground that Judge Barton used in 1995 to overturn Cheryl's and Violet's convictions was a technicality: the seating arrangement that denied the defendants their 6th Amendment right to "confront [their] accusers." (I call it a "technicality" because, in the hysteria that prevailed in 1987, the prosecution would probably have gotten their conviction even without the improper seating arrangement.) Probably Judge Barton (known as a tough "law-and-order" judge) would not have gone so far as to overturn a long-settled conviction, if he wasn't also convinced that the whole case was a miscarriage of justice. (The original trial judge, John Paul Stevens, had also come to question the guilty verdict.)

Justice Fried looked solely at the seating question, and ruled that a single technicality should not suffice to overturn a conviction that had already gone once through the appeals process, if there were any other grounds at all for believing the conviction. He then claimed that, apart from the children's testimony, there was corroboration from (1) "expert testimony" that some children showed physical signs of abuse [This testimony has more recently been shown to be worthless], and (2) testimony by parents that they recalled abnormal behavior from before the alarm was raised in Sep 1984 [even though they didn't consider it noteworthy at the time]. But what if (as has become clear to anyone that has eyes that can see and a mind that can think) the corroboration was worthless? It doesn't matter, ruled Fried. The SJC had already considered challenges to the "corroboration" in 1990 (turning them down), and thus, by the rules of procedure, should not consider such challenges again.

Judge Borenstein addressed this question in a less publicized part of his Jun 1998 decision throwing out the convictions again.

Judge Borenstein apparently found precedent in Massachusetts law, that even if an individual flaw (eg the seating arrangement) is not sufficient to overturn a trial verdict, it can properly be considered in tandem with other earlier recognized flaws (eg the inflammatory and irrelevant "expert testimony" on child pornography), even if the earlier flaws were ruled not by themselves alone sufficient to overturn the verdict.

Although rejecting a challenge based on the seating argument, Justice Fried did not rule out other new arguments. Indeed, a few months later, without a recorded vote, the SJC in Oct 1997 allowed Judge Borenstein to hear Dr. Bruck's testimony.

Postscript 1 March 2001. It turns out Justice Fried did intend to "spurn the innocent," as the shameful SJC decision of 18 Aug 1999 would make clear retrospectively. (Although Judge Fried retired too soon to put his name on the decision itself, his aggressively hostile demeanor at the hearing on 6 May 1999 helped push his fellow justices down the wrong path.) Nevertheless, my analysis here was plausible when written -- Judge Borenstein's decision offered Justice Fried a way to reconcile his earlier "finality" opinion with justice.

Return to index of Fells Acres articles.

Return to Bob Chatelle's Fells Acres report (most up-to-date coverage)

Return to index of "Fells Acres and the Boston Press."