Judge Borenstein's decision-- Part I

12 Jun 98

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I. PROCEDURAL HISTORY

After a joint trial in 1987 before Superior Court Justice John Paul Sullivan, a jury convicted Cheryl Amirault LeFave on four counts of indecent assault and battery on a child under the age of fourteen and three counts of rape of a child under the age of sixteen. The Supreme Judicial Court affirmed her convictions on direct appeal. Commonwealth v. LeFave, 407 Mass. 927, 943 (1990). In 1992, Sullivan, J., allowed the defendant's motion to revise and revoke her sentence. That order was vacated by the Supreme Judicial Court on the Commonwealth's appeal. Commonwealth v. Amirault, 415 Mass. 112, 117 (1993).

On April 11, 1995, the defendant filed her first motion for a new trial on the grounds that the seating arrangements of the child witnesses at her trial violated her State and Federal constitutional rights to face to face confrontation with her accusers. Justice Robert A. Barton of the Superior Court allowed the defendant's motion. On March 24, 1997, the Supreme Judicial Court vacated the order allowing the motion for a new trial and ordered the reinstatement of the defendant's convictions. Commonwealth v. Amirault, 424 Mass. 618, 653 (1997).

Shortly thereafter, the defendant filed a second motion for a new trial based upon ineffective assistance of counsel for failing to raise the confrontation clause issue on appeal. After Justice Barton recused himself, this second motionwas assigned to me. On May 9, 1997, I allowed the defendant's second motion.

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The Commonwealth has appealed the allowance of the defendant's second motion for a new trial. On October 16, 1997, the defendant filed her third motion for a new trial based upon newly discovered evidence. The Supreme Judicial Court stayed the Commonwealth's appeal of the allowance of the second new trial motion and assigned the third motion for a new trial to the Superior Court on October 28, 1997. On November 7, 1997, the third motion was assigned to me.

This Court held an evidentiary hearing on the defendant's third motion on February 17-18, 1998, at which the defendant presented the testimony of two expert witnesses, Maggie Bruck, Ph.D. and Diane Schetky, M.D., as well as numerous exhibits. The Court then gave the Commonwealth the opportunity to present its own expert evidence regarding suggestive interview techniques and whether the testimony of the children had an independent basis. The Commonwealth declined to exercise this option //Note 3//. Both parties made their final arguments before this Court on April 14, 1998.

//Note 3-- The Court made it explicitly clear to both parties that part of the Court's consideration would center on whether, if there were impermissibly suggestive interviews, the children's testimony nevertheless had an independent basis. The Court, as it sets out later in this opinion, finds that the Commonwealth has not provided sufficient evidence to support an independent basis for the testimony of the children.//

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