The conference began about 1:40 p.m. with introductory remarks by Professor Charles Ogletree. He said that the conference was sponsored by the Criminal Justice Institute of Harvard Law School and co-sponsored by the Massachusetts Bar Association, the Massachusetts Association of Criminal Defense Lawyers, and the ACLU of Massachusetts. Ogletree announced that TV cameras would have to be turned off when Cheryl Amirault LeFave spoke, due to the gag order imposed by Middlesex District Attorney, Martha Coakley.
Snedeker said that most of the daycare cases occurred in the 80s. Before the 70s, child sexual abuse was a private crime. A consequence over the awareness of what had long been hidden led, unfortunately, to the Ritual Abuse hysteria of the 80s. The first case that got mass media attention occurred in Bakersfield, California, in 1981. Eventually, well over 100 cases would be brought nationally against daycare workers, teachers, and parents. Allegations were made that photographs were taken and sold as child pornography. Improbable accusations were made. Horrors were alleged, even though there was no discernible impact on the alleged child victims. A crusade was joined by therapists, feminists, and the police. "But we now know that they were dead wrong. There was no collaborative evidence in any of these cases." A $25,000 reward was offered for one pornographic photo of one child who had attended the McMartin pre-school. None was ever found.
Snedeker said that the question was asked: How could children made these things up? The answer is obvious if you look at the videotapes of the child interviews. In these interviews, the narrator is clearly not the children but the interrogator. But fortunately people of all social classes and all educational levels were persuaded by these false narratives. All 403 McMartin children were videotaped. But jurors refused to convict any of the McMartin defendants, primarily because they saw the videotapes.
Robert Rosenthal began by discussing the Kelly Michaels case. This began when a child had his temperature taken anally. The child said to the doctor, "that's what her did to me in school." This triggered a mandatory reporting. The mother began interrogating the boy, the police were called in, and a mass meeting was called with police and "experts." Parents were told to "look back and search for evidence." Parents quickly ceded their authority to these "experts."
Investigators looked for symptoms of abuse. "Unqualified and overzealous investigators treated kids like crime suspects." Interrogators "told the children what they [the children] had experienced." After "disclosure," the children were treated as abused children.
Prosecutors weeded out the most incredible accusations. Nevertheless, some got through. But juries for the most part assumed the attitude, where there's smoke there's fire. "Experts" told juries that children cannot lie about abuse. These "experts" gave juries symptom lists, and the parents would verify their children had the symptoms. Tons of hearsay testimony were admitted by judges. Indictments were incredibly broad. Rape-shield laws were used to keep out exculpatory evidence. Judges ignored suggestion and coercion of witnesses and let the Constitution fall by the wayside to "help" the children.
Kelly Michaels' was one of the first convictions reversed. The Court realized that when investigators tell children what happened to them, they taint the child's memory. The research of Ceci and Bruck has established that these tainted memories are like a suggestive identification or a forced confession. Michaels could have been retried, but a taint hearing would have been required.
Cameras were turned off so that Cheryl Amirault LeFave could speak. Ogletree began by asking her why the Fells Acres School was set up.
Cheryl said that her mother, Violet, was a single parent who wanted to work in her home so that she could be with her own children. She began watching other children, starting with 6 children. The school grew and had much community support. The school was there for 25 years, and 3,000 children went through it. Cheryl said "we worked together as a family." Violet worked well with other single parents. She wanted to pass the school on to her own children. Cheryl expressed great sorrow that the Fells Acres School is now looked on in such a different light. Violet worked very hard and very long. "She loved children, we loved children."
Ogletree asked Cheryl about her reception in prison.
Cheryl said that during the prison years, her most important supporter was her mother. They both made themselves accessible to the other women. Cheryl worked in the law library and Violet became involved in education, helping women prisoners get their GEDs. Cheryl said, "My mom didn't stop for a moment. She was relentless in her fight." Violet would write letters every day. They hoped for parole, but parole never came because they asserted their innocence. Cheryl said, "My conviction was the day my life ended."
Ogletree finally asked Cheryl what concerned her today.
She answered [as I knew she would], "I am still without my brother. I will be wherever I have to be until I get him home." Her determination still burns within her. "I can't put that flame out." She also expressed respect for those who give up their lives for the lives of others."
Ogletree asked Patti Amirault what it felt like when she heard the allegations against her husband.
Patti said that the allegations came upon them overnight. "I had nothing pressing in my life. Overnight. my life changed." She also said, "It's been very easy to support him. I am so confident in his innocence. he's done a great job of helping me parent our children."
Ogletree then asked: How did the children rise above it? How did you give them the strength?
Patti said she kept everything up front. Both she and Gerald were supportive of what they children felt and what they thought. And the children are proud of their family, proud of their name.
Ogletree asked if Patti felt any sense of hopefulness.
Patti says that throughout the whole ordeal she has had hope. She still believes the system is going to work.
Ogletree asked about her experience as an educator and whether she had any advice for those who profess their innocence and every door is locked.
Patti pointed out that as a teacher she is also a mandated reporter of child abuse and that she takes that responsibility seriously. She also mentioned that many years ago, teachers were encouraged to be warm and affectionate towards children. Now the policy is strictly "hands off." [In a society where adults are forbidden to express affection and caring for children, the big losers are the children themselves.]
For those falsely imprisoned, Patti advised: "Never give up! There's someone out there who will hear you and help you."
The final speaker of the first panel was the Amirault's lawyer, Jamie Sultan.
Sultan began by explaining that Fells Acres is an example of a case where the system has failed. The case is no different than many that have been overturned. It is very like the Kelly Michaels case. There were the same kind of allegations, the same kind of investigation. This is not surprising, considering that there was a nationwide community of investigators and prosecutors who were cross-fertilizing.
Sultan said that there arose some years ago a tension between the desire for fairness and the desire for finality. At some point, the main concerns of the Massachusetts Courts was "having the trains run on time." In the Fells Acres case, the prosecutors argued that it was "too late" to take up Constitutional issues. Sultan found it incredible that the Massachusetts Supreme Judicial Court believes it more important to make the trains run on time than to achieve justice. The SJC never even look at the substance of the Borenstein ruling in the Amirault case.
Sultan said that when they realized that it was pointless to look for a judicial solution, they began looking for political solutions. In Cheryl's case, core First Amendment rights of Cheryl, the press, and the public were abridged in exchange for her freedom. Cheryl was reluctant to go along with Coakley's "deal." Sultan said, "I had to beg her not to be a martyr."
Sultan said that the court system failed Cheryl and that the court system has failed Gerald. Commutation will be a political solution. But Sultan expressed optimism because public opinion has turned around dramatically.
There was some time after the first panel for a brief question-and-answer session.
An audience member talked about the gross misinformation that occurred in the Boston media at the time of the Fells Acres case. He asked if the panel had anything to say about the media lies. Cheryl gave the perfect answer: "What came out of the media lies was a jury who convicted me."
Another member asked about prosecutors who realized that they had made mistakes. Rosenthal replied, "Prosecutors never make mistakes." Mike Snedeker agreed: "No one has ever said, 'we were wrong.'" A few years after the Salem Witch Trials, Massachusetts declared a Day of Contrition. But there has been no Day of Contrition for those railroaded into prison in the daycare cases.
Noted journalist, author, and crusader for justice, Donald Connery, asked Cheryl if any fellow prisoners thought she was innocent. Cheryl pointed out that guilt and innocence are not things that prisoners usually ever talk about. "My innocence wasn't something I continued to rant and rave about. But my mother did."
Another audience member commented that over the past few decades that there has been a change in America on criminal-justice issues. Once, people desired rehabilitation. Now they only want vengeance. And they want lifelong vengeance for sex offenders.
Sultan agreed that the rehabilitation model has been rejected. And he lamented that assertion of innocence makes a prisoner ineligible for parole.
Finally, Ogletree asked the panelists for final comments.
Rosenthal said that in these cases one must look at state action. "Reliability is the cornerstone of due process." When you tell children what happened to them, that ruins their memories. "These cases are not whodunits" and defense lawyers shouldn't treat them as thus.
Mike Snedeker commented, "Finality is the last refuge of scoundrels. Finality has become a fetish" and prosecutors have become corrupt.
Judge Barton (recently retired) said that he was sitting in Middlesex County when these cases were being tried. He said that Scott Harshbarger (then DA, subsequently Massachusetts Attorney General and failed 1998 Democratic gubernatorial candidate) was proud of the way is (Harshbarger's) office was handling these cases. Barton related that when he granted the Amirault women a new trial in 1995, he received a vicious vitriolic letter from Harshbarger that denounced Barton with very nasty words. (Barton discreetly destroyed Harshbarger's letter. Too bad.) [President Bush may well appoint someone awful to be our next Attorney General. But at least we can be reasonably confident that it won't be Scott Harshbarger.]
Barton lamented the fact that Chief Justice Paul Liacos decided to retire early. Had he not, the SJC's decision might have been quite different. Barton called the 3/24/97 SJC decision ordering Cheryl and Violet back to prison "a decision that will live in infamy." The lone dissent in the case was from Justice O'Connor, who said that "a desire for finality should not eclipse our concern that justice has miscarried." Barton also said, "That decision and the issue of finality bothers me more than any other decision I have had to live with as either a judge or a lawyer."
The next speaker was Judge Rubenstein. Rubenstein was District Attorney of Bucks County -- one of the most affluent counties in Pennsylvania -- when allegations of child sexual abuse and satanic ritual abuse were made at the Breezy Point day school. Rubenstein consider himself a lethal prosecutor and the criminal's worst enemy. So he set out to corroborate the allegations. After a long and thorough investigation, he concluded that the charges were baseless. It was only later that he heard about all of the similar cases that were going on in other parts of the country. (He was, of course, aware of McMartin.) Rubenstein's belief is that you've got to handle these cases just like any other case. He said, "The proudest moment I ever had was the case I didn't prosecute."
Maggie Bruck said that the pattern of the cases she assists is basically the same. A child is OK; an adult becomes suspicious; there is initial denial; the accusations become bizarre; and the child often recants.
Bruck says that she usually works on appeals. She said that prosecution experts usually give "unscientific, anti-scientific testimony." She pointed out three patterns of error common to these witnesses:
Bruck said common problems included biased investigation, failure to consider alternative hypotheses. and ignoring evidence that conflicts with the hypothesis. Interview bias entails more than asking leading questions. Interviewers make implicit and explicit demands. Children are a captive audience. At the end of the day, only the strong can prevail against suggestive questioning. Bruck pointed out that the interviewer's own memory is tainted. What interrogators remember is what their hypothesis is.
Wendy Kaminer spoke about the cultural forces that led to the daycare hysteria. According to Kaminer, the recovery movement gave us our obsession with child sexual abuse. And out naive reliance on experts came out of the ironically named self-help tradition. The recovery movement also gave us recovered memory. The assumption was that virtually all of us were abused. Kaminer especially recommending Joan Accocella's recent book, Creating Hysteria. Kaminer pointed out that the cultural forces that gave us the daycare hysteria also gave us alien abduction and Satanism. She cited a poll taken some time ago where 70 percent of the respondents expressed belief in Satanic cults. Kaminer asked, Why were people so gullible?
She said the answer lied in the larger therapeutic culture and the belief that truth is entirely personal. This culture also gives much support to censorship -- the notion that words must be regulated because words wound, which gave us such phenomena as campus speech codes. The mantras were believe the women, believe the children, take personal testimony at face value, don't look for corroboration. Questioning is labeled perpetuating the abuse. The therapeutic notion of truth is, "If you fell something happened, then it happened."
But Kaminer believes "it is not good for people to be encouraged in their delusions." The therapeutic notion is that there is a war of Victims v. Oppressors, and that all must choose one side. Larger "truths" are considered more important than particular truths. She expressed alarm at the victims-rights movement, and the drive for a victims-rights Constitutional amendment. The courtroom should be a place for justice, not therapy.
Nat Hentoff spoke about the failure of the press. He believes that the primary cause for injustice was the press. He spoke about the pernicious influence of Anna Quindlen, who to this day has not confessed error. Hentoff pointed out the irony of the Edenton prosecutors accusing Ofra Bikel of "tainting" the evidence by her investigation of the absurdities of the Little Rascals case.
Hentoff praised Dorothy Rabinowitz for breaking open the Amirault and Snowden cases. About Rabinowitz, Hentoff said, "She has the tenacity of prosecutors." Hentoff recalled speaking with the Washington state ACLU regarding Wenatchee and being told that they were "studying" it. Hentoff pointed out that in these cases the ACLU has been remiss most of the time. Hentoff also praised the Seattle Post-Intelligencer for its stand on Wenatchee in march of 1998. (Although he wished it had come much earlier.)
Hentoff pointed out that the watchdogs were silent on Wenatchee. Where was the US Justice Department? [No surprise there -- it was and is under the thumb of Janet Reno.] Where was the ACLU? Where was the press? The press is an accomplice because the press is part of the system.
Dorothy Rabinowitz said that when she begin writing about these issues that Wall Street Journal readers had never considered these matters. She was gladdened to learn how little it takes to set the public straight simply by stating the facts. Rabinowitz said it would now be very hard to put one of these [daycare] cases over. In the Kelly Michaels case, no one doubted the prosecutors. It was a matter of religious belief in 1988. According to Rabinowitz, we were in the realm of the Sacred Charge (which couldn't be doubted) and the Sacred Victim (who must be believed.) She told us about the prosecutor who knew that Kelly Michaels had to be guilty because she didn't wear underpants. It was difficult to break open the Michaels case, because the transcripts had been locked away.
Forty years ago, said Rabinowitz, parents knew their children. Now experts have told parents, "You'd be amazed by what you don't know about your children." Parents and others have suffered a loss of skepticism and a loss of confidence in their own opinions. They are told, "Child abusers are so clever they know how to do these things." Rabinowitz pointed out that the hysteria has now graduated into the divorce courts. Every week she gets letters saying, "My son has just been charged by his ex-wife..."
Kaminer pointed out that we now have constant surveillance of children and a whole generation is growing up accustomed to constant surveillance.
Rubenstein said that the media in his community was very responsible, largely because he made them a full partner in the Breezy Point investigation.
Donald Connery said that the major media has been terrible. "The New York Times has been AWOL. The Boston Globe never corrected its original bad reporting." He asked about the role of feminism in influencing the media.
Hentoff said that the tone of the Times was set by Anna Quindlen. Kaminer responded that feminism comprises a great many beliefs and principles, and that feminists are by no means united in their opinions about these cases.
[It's important to avoid casual feminist bashing. Many of the strongest advocates for justice have impeccable feminist credentials -- Wendy Kaminer, Katha Pollitt, Elaine Showalter, Joan Accocella, etc. Unfortunately, most of those who have been the most irrational and have most shrilly promoted these horrible injustices have come not from the lunatic fringe but from dominant mainstream feminism: Gloria Steinem, the editors of MS. magazine, the leadership of NOW, etc. This is a major reason that there has been such disgraceful moral cowardice on the part of the ACLU, the Democratic Party, The Boston Globe, and other bastions of what we've come to call "liberalism." (The ACLU, I hope, is improving -- largely thanks to the efforts of principled and intelligent people such as Wendy Kaminer and Harvey Silverglate.)]
Paul Shannon from the American Friends Service Committee asked about the case of Bernard Baran. Wendy Kaminer asked me to comment, but I deferred to Pam Nicholson (one of his lawyers) who was in the audience. Baran's lead attorney, John Swomley, also attended. Pam gave a brief summary of the Baran case.
An audience member asked Bruck about what happens to children who make false accusations. Not much is known because it's been difficult to study this. Most who've recanted have been those who've made accusations against parents. Many of these recant at 16 or 17. Others seem to believe at least into their 20s. But they can't remember what happened, they can't remember details. According to Bruck, dramatic events are usually not forgotten.
In response to another question, Judge Barton questioned how five judges "did a 180" in the Amirault case, referring to the five judges that voted with Charles Fried when Cheryl's first new-trial motion was turned down. Judge Rubenstein pointed out that judges often just ignore evidence.
Rosenthal began, pointing out that not a single person that he or Mike Snedeker has freed has ever committed a sex crime. Were these people guilty, this shouldn't be the case because of the alleged recidivism rates.
Rosenthal was generally pessimistic, emphasizing "this is not over." It is still going on, the same experts are still out there validating. Even the expert in the Kelly Michaels case is still working, still going into courtrooms. The victims-rights movement and the Victims Rights Amendment are very scary. Prosecutors and investigators don't videotape or audiotape. This is sure arrogance on their part. Rosenthal mentioned that the ACLU was worthless in the Wenatchee cases. He stressed that some national organization has got to get involved. He said that the emergence of "multidisciplinary task forces" in investigation is a step in the wrong directions. Public defenders don't have the resources to defend these cases. "It's as bad as it ever was or worse." And he said that the people who are now being called heroes (such as Rosenthal) are people who are just doing their job.
Maggie Bruck said that one thing prosecutors and investigators learned from the McMartin case was don't tape. And if you do tape, destroy the tapes. In her opinion, this was just a way of not preserving evidence. She also said that a reason that most therapists fail is that child-protection-service workers tend to be undereducated and have heavy case loads.
Edward Ryan said that most of the problems now occur in divorces and that "mass hysteria has been transferred to the probate court where there are few due-process safeguards." He also said, "Our society is indoctrinating an entire generation with the reverse Constitutional values that we grew up with." Defense lawyers have been vilified by the mass media and right-wing groups. "Citizens must remove themselves from the suspension of disbelief."
Judge Rubenstein discussed the problems with the battles of experts. "we've got to have prosecutors who can say, 'This doesn't make sense, this is a load of crap.'" Instead we have "prosecutors who day, 'This could be a step to becoming Attorney General or Governor.'" [I certainly took this as a reference to Scott Harshbarger.]
Rubenstein also pointed out, "People like to believe these things. We've had witch hunts for hundreds of years." [I would say at least thousands of years. I think they occur for two main reasons. (1) People feel safer if they can objectify and identify evil. That is the appeal of the scapegoat. A scapegoat is something tangible that you can hunt down and kill. Actual evil is more elusive, hiding in the hearts of us all. (2) Witch hunts are a most effective means of social control. They divert people's attention from the misdeeds of the powerful and allow the powerful to assume the role of protectors.]
Harvey Silverglate spoke about the problems of the media, pointing out that hysteria can't happen without the media. He spoke about the incredible amount of laziness on the part of reporters. Reporters don't want to take the time to read transcripts. They want sound bites and 5-minute summaries. He also said that newspapers and other media have no institutional memory. Reporters still don't realize, for example, that you can't always believe the Department of Justice.
One Globe reporter who actually read transcripts was Charles Sennott, who did an excellent article on Fells Acres. But the article apparently had no impact on the Globe itself. The Boston Herald has been much better. The Herald ran an excellent series by Tom Mashberg and Ed Hayward, and editorially followed it up with a plea for freedom for the Amiraults. When a newspaper editor bothers to assign an investigative reporter to do the hard leg-work and document review needed to understand a long or complex case, it behooves editors to insist that reporters and columnists who later write about the case at least consider what their hard-working predecessor learned. If a reporter on the staff has read the transcript, a columnist should not willy-nilly give his or her informed opinion without at least conferring with the reporter who knows the facts. "Facts are stubborn things," Silverglate said, quoting Judge Hiller Zobel in the Woodward case.
Harvey said that newspapers need more responsible and talented editors. The Wall Street Journal, for example, gave Dorothy Rabinowitz the time she needed to do investigative reporting. We will know things have gotten better in the world of journalism, "when Dorothy Rabinowitz, rather than Eileen McNamara, wins the Pulitzer Prize."
Harvey also stressed that we must make a concerted attack on the notion that finality trumps justice. Its outrageous that judges won't recognize that actual innocence should trump finality.
Finally, Harvey said that respect must be paid to those journalists who do the hard work.
The final speaker was Mike Snedeker (who was also the first speaker of the conference). Snedeker spoke about the random element in how these cases have gone on appeal, and there's been little pattern about who has succeeded and who has failed. He also said that prosecutors have learned that certain things -- such as Satanic Ritual Abuse -- no longer sell.
Snedeker concluded with a description of a case that is going on right now in Mexico -- a case involving several teachers and several schools. The case is almost exactly analogous to McMartin, Fells Acres, Edenton, etc. It thus appears that the United States "has been exporting poisonous ideas to Mexico."
The Conference was a wonderful event. Unfortunately, one fears it might have been another exercise in preaching to the converted. Few who needed to hear what was being said were there. And, because of the irresponsibility of the media, little of what was said will ever reach the ears of the public.
Gerald Amirault is still in prison. (One can hope, at least, that nightmare will soon come to an end.) Bernard Baran is still in prison. Bruce Clairmont is still in prison. The Souzas are under house arrest. Frank Fuster (one of Janet Reno's victims) rots away forgotten in a Florida prison. Many others too numerous to name rot in prisons across the nation.
Our criminal-justice system has broken down. It doesn't work. Politicians like Scott Harshbarger, who built their political careers on injustice, are not going to fix the system. Only we can fix it and we can only fix it if we refuse to give up. Sometimes I feel -- and I'm sure you feel -- like a voice crying in the wilderness. But if we keep crying in the wilderness, we may eventually be heard.
I was brought up by people who believed strongly in the notion of moral obligation. It was either the greatest blessing or biggest curse bestowed upon me by my parents and grandparents. I keep fighting because it would be wrong to do otherwise.
-Bob Chatelle