Witnesses barred in day care sex trial Mass. case is latest in which testimony of children was suspect


CAMBRIDGE, Mass. -- Handing a major victory to the defense in one of the country's longest-running day care sexual abuse cases, a Massachusetts judge ruled yesterday that the children in the case had been so manipulated in interviews by the prosecutors that their testimony was "forever tainted."

Declaring that "justice was not done," Judge Isaac Borenstein of Superior Court granted a new trial to Cheryl Amirault LeFave, one of three family members convicted in the highly publicized Fells Acres Daycare Center case.

He said that because of prosecutors' suggestive and leading interview techniques, it is impossible to tell if the accusers, now teen-agers, were telling the truth.

"Their testimony has been forever rendered unreliable," Borenstein said.

He also dismissed all charges against LeFave's mother, Violet Amirault, posthumously. She died of cancer in September at age 74.

But the aspect of Borenstein's ruling that may have the broadest implications for other cases around the country, prosecutors said, was his assertion that in LeFave's new trial, the children whose evidence made the prosecution's case should not be allowed to testify.

"It's concerning because not only did he determine that the interviews in the case were improper, he determined that the children could not testify," said Lynn Rooney, chief of the Family Protection Unit in the Middlesex County district attorney's office.

"He's in effect found her not guilty, because without the children, we don't have a case that we can prosecute."

The prosecution will appeal the ruling to the Massachusetts Supreme Judicial Court, she said, and if the appeal fails, will consult with the families involved about whether they could endure another trial, more than a decade after the first.

Fells Acres is one of the last cases pending among the wave of major day care sexual-abuse trials in the 1980s -- including California's McMartin preschool case, the Little Rascals Day Care Center in Edenton, N.C., and the Wee Care Day Nursery in Maplewood, N.J.

Several of the convictions in those cases have been overturned as questions have mounted over whether interviewers had prodded suggestible children into fabricating stories of abuse.

But groups that work on behalf of defendants said yesterday's ruling may help the hundreds of people falsely accused of child sexual abuse in day care or custody cases who remain in jail.

James Sultan, LeFave's lawyer, said that when the Amirault case was tried in the mid-1980s, "it was really the dark ages of child sex-abuse investigations, and people didn't know how to question children properly. And at the time, the prevailing wisdom was that you really had to push and prod, and 'Don't take no for an answer' was the mantra of the investigator at the time."

Since then, he argued successfully before the court, more than a decade of research has shown that children are so suggestible that they tend to give questioners the answers questioners want, and then to believe what they have said.

The 1993 exoneration of Margaret Kelly Michaels in the Wee Care case also hinged on flawed interviewing, he noted.

Borenstein had viewed videotapes of the children's interrogations, and read aloud excerpts of transcripts in his ruling yesterday to show how the questioners pushed children into answers.

Afterward, he said, "On and on and on, refusing to take no for an answer, and it's only one example of the overwhelming evidence in this case of how investigators, however well-intentioned, just would not take no, and overwhelmed these kids."

Sultan said the ruling held particular promise for the third defendant in the Amirault case, LeFave's brother Gerald Amirault, who is in prison serving a sentence of 30 to 40 years and was convicted on the same evidence.

Amirault, who was an aide and driver at the Malden, Mass., day care center that Violet Amirault had run for more than 20 years, was accused of taking the center's children, who were between 3 and 5 years old, into a "magic" or "secret" room to molest them.

Children gave accounts of being tied naked to a tree, being attacked by a clown, being raped with objects, and being forced to watch the Amiraults kill birds.

Though the news was good for Cheryl LeFave yesterday, she cried in court "because her Mom wasn't there to hear this vindication," Sultan said.

Later, LeFave told reporters that the judge, "validated everything that my family has been fighting for."

"There was never any abuse in Fells Acres," she said. "And my God, my mother, God rest her soul, her business was taken from her. My mother created a community in Malden that was impeccable. And I'm here to raise her name."

Pub Date: 6/13/98

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