The Supreme Judicial Court's Aug. 18 decision in Commonwealth v. Cheryl Amirault LeFave seems unexceptional, if read in a vacuum. But the case is indeed quite extraordinary.

A woman, Cheryl Amirault LeFave, and her mother, Violet Amirault, are charged with and convicted of sweeping counts of child abuse arising out of their operation of the Fells Acres Day Care Center in Malden. (LeFave's brother, Gerald Amirault, is convicted of similar charges in a separate trial.) The women are given sentences of 8-20 years. Parole is denied because they insist on their innocence. Superior Court Judge John Paul Sullivan then revises the women's sentences downward. But the SJC reverses that ruling in 1993.

In 1995, the Amirault women move for a new trial. Judge Robert A. Barton grants the motion and releases the women on bail, ruling that they had been deprived of their right to face their accusers. In 1997, the SJC agrees that the seating arrangements for the child witnesses violated both defendants' confrontation rights under article 12 of the Massachusetts Constitution. But, finding the issue waived, the SJC reinstates the convictions citing the need for "finality."

Barton publicly states his disagreement with the SJC's decision and recuses himself from the case. Judge Isaac Borenstein steps in and continues the bail. Eventually, Borenstein grants two different new-trial motions, this time on the grounds that the trial counsel's assistance was ineffective for failing to preserve the confrontation issue and that newly discovered evidence demonstrated that the manner in which the abuse allegations were investigated were "wholly unreliable."

While the commonwealth's appeal of this ruling is pending, the mother dies, leaving only the daughter, Cheryl, as a defendant when the case makes it back to the SJC in 1999. Once again, the SJC reinstates the woman's conviction, holding that the ineffective assistance issue had also been waived and that new evidence showing more clearly how interviewing techniques of children can cause them to describe sexual acts they had never experienced wasn't new and significant enough to constitute "newly discovered evidence" meriting a new trial. (Throughout the entire process, the brother, Gerald, gets nowhere with his new-trial motions before a different judge.)

The celebrated Amirault prosecutions came amidst a flurry of day-care-center abuse cases brought across the country in the mid-1980s. In the Amirault cases, as in those other cases, the allegations of abuse took on mythic proportions, involving bizarre claims of "magic rooms" and animal mutilations. And, like the other cases, the Amirault indictments were based entirely on child testimony. There was no physical evidence, other than some ambiguous medical testimony regarding relatively minor injuries to a few of the children.

Although the question of whether the children could have been encouraged by investigators to fabricate the abuse charges was raised by the defense at trial, the Amirault prosecutions took place in an atmosphere of hysteria. At the time, "children don't lie" was the battle cry for the prosecutors and anti-abuse activists. It wasn't until years later that empirical research became clear and society began to understand how easy it is to plant ideas in a child's head and how improperly suggestive the earlier investigative tactics had been.

By 1995, when Judge Barton first heard the motion of Cheryl Amirault LeFave and her mother for a new trial, the public mood had calmed and sentiment was growing that well-meaning prosecutors had perhaps, in their worthy zeal to protect children, unintentionally railroaded these defendants. Barton's allowance of the Amirault women's new trial motion, as well as Judge Sullivan's sentence revision, were courageous examples of judicial independence so valued by Massachusetts lawyers. Even more courageous was Judge Borenstein's 1997 decision to again order a new trial.

In its 1999 opinion, the SJC took the perhaps unprecedented step of acknowledging public criticism that had been made of its 1997 decision and its heavy emphasis on the importance of "finality." "The forceful, one might say enthusiastic, indorsement of an interest in finality and the application of waiver in Commonwealth v. Amirault ... apparently struck some as a radical and unwelcome departure from precedent," Chief Justice Herbert P. Wilkins wrote, in one of his final opinions for the court. "In fact, the Amirault opinion made no significant change in our treatment of postappeal motions for a new trial. It articulated society's justified interest in finality that has long been implicit, and sometimes explicit, in our announcements that any late-arriving issue will prevail only if the issue presents a substantial risk of a miscarriage of justice."

In the three other infamous day-care-center child-abuse prosecutions from the 1980s (from California, New Jersey and North Carolina), the defendants were ultimately freed and even some of the prosecutors acknowledged that the frenzied public atmosphere may have played a less-than-savory role in the way the charges were investigated and prosecuted.

But in Massachusetts things have been different. The prosecutors here seem unwilling to admit any possibility that they might have sent innocent people to jail for crimes that never occurred. Yes, confrontation rights were violated. Yes, investigation tactics were unduly suggestive. Yes, trial counsel may have made serious errors. But, according to prosecutors, the jurors believed the children and that's all that matters.

Such defiance should perhaps be expected of public officials who need to be protective of their own reputations. But it is surprising to witness this quality emanating from the SJC a court that has, over its 307-year history, earned a deservedly high reputation for protecting individual liberties. The court's emphasis on "finality" in 1997 (the word was mentioned five times in the opinion) was indeed a subtle but significant change in emphasis from the SJC's prior role in balancing the new-trial scales. Previously, finality had been mentioned as one concern in addressing new-trial motions, but it had never before been elevated above the risk of injustice in terms of importance.

In six different decisions in the Amirault cases, the SJC has seemed determined to defend the prosecutors and insist that these defendants belong behind bars. Virtually scoffing at any possibility that an injustice may have been done, the justices have been unyielding in their refusal to let a new trial take place to present scientific testimony that wasn't well-developed at the time of the original trials.

Society will never know for sure whether any abuse transpired at the Fells Acres Day Care Center in the 1980s. But it is readily apparent that the original Amirault trials were a travesty of justice and that judges Barton and Borenstein, as well as now-retired Judge Sullivan, have been profiles in courage throughout. Unfortunately, the courage of these judges has not led to the new trials that justice so clearly demands.

In commenting on the need for a Bill of Rights, Thomas Jefferson long ago said that "a society that will trade a little liberty for a little order will deserve neither and will lose both."

In keeping with this principle, and in light of the SJC's refusal to allow new trials, Gov. A. Paul Cellucci should seriously consider a pardon for the Amiraults.

© 1999 Lawyers Weekly Inc.,

All Rights Reserved.

Isaac Borenstein, considered by many to be the ultimate “gentleman judge,” will soon be trying cases instead of hearing them.

A self-described “Jewish street kid from Havana,” Borenstein will retire from the Superior Court on Sept. 12, ending a 22-year run as one of the state’s most-respected and talked-about judges.

Borenstein will embark on a career as a trial lawyer, an unusual switch for such a fixture of the court system. Veteran judges who retire from the bench often set up shop as arbitrators or mediators, in part to avoid the odd scenario of an ex-judge arguing before a former colleague.

But, says Borenstein, “I’ll be 58 in September. I want to do other things in my life. I want to be able to work on political campaigns. I want to be able to do pro bono work. … I want to go to Guantanamo and defend those cases. I want to come out openly on civil rights and civil liberties.”

Also driving his decision, Borenstein notes, are financial considerations; Superior Court judges are paid $129,694, and his son, Simon (who was born five months after Borenstein was sworn in as a judge), will soon be a junior at Carnegie-Mellon University, where the tuition is a hefty $52,000 a year.

The judge says he will join a Boston law firm (the identity of which he cannot reveal until his last day, according to an ethical opinion he received), where he will focus on criminal and civil litigation, appellate practice and “everything else.”

‘Pillow test’

In an interview at Lawyers Weekly last week, a relaxed Borenstein reflected on his career as a judge.

His early days as a lawyer included stints as a staff attorney at the Roxbury Defenders Committee, a clinical instructor at Harvard University and a full-time professor at New England School of Law.

Just 36 years old when he first donned a robe, today Borenstein is one of the elder statesmen of the bench after six years on the District Court and almost 16 on the Superior Court.

Borenstein quickly developed into one of the more well-regarded jurists in Massachusetts. While attorneys seem to agree that he had defense-friendly tendencies in criminal cases, the judge was lauded as one who took great pains to decide cases, and to explain himself.

“I’m going to miss what I do,” he now says. “I loved being engaged in the pursuit of justice, as corny as that sounds. I’ve made my mistakes, but I really love what I do.”

Mistakes? The judge says he could have worked faster on a number of cases and that he could have been a “better colleague … more available to people.”

When asked whether there was a single substantive decision that he regrets, the judge pauses a few seconds before replying with a decisive, “No.”

“I came on the bench trying to understand the role of a trial judge,” he says. “Facts and the law. Individual case by individual case. And not being concerned about how the next case will be viewed.”

So while litigants may walk away dissatisfied with a particular result, Borenstein says he is proud of the way he reached that result.

“It’s the pillow test,” he says. “Will I put my head down at night and believe I am right?”

‘The bouncing ball’

Borenstein acknowledges that he is leaving a flawed judiciary.

For one, his adherence to a “case by case” philosophy leads him to one of his pet peeves: specialized courts.

As nonsensical as it may sound, the judge cannot stand the idea of a court devoted to the cause of, say, wiping out drug problems.

“As important as it is, I am very wary of pushing judges toward the policy side,” he explains. “If I start worrying about policy … well, that’s not my job. A Drug Court? That’s not the role of a judge.”

Borenstein also laments that Massachusetts judges have not done enough to help the tattered image of the judiciary.

“I blame us. … I don’t think we have done a good enough job [in defending judges],” he says. “If it happens in our circle of friends, that’s when we stand up. But if it’s someone else, we don’t.”

But Borenstein does not leave the media blameless on this issue.

“Certain people in the media love to make judges prophets,” he says. “We’re supposed to know that someone in our court is going to do something bad. It sells because people want to be entertained. ... But to have a politician ask a judge to resign because something went wrong is the lowest form of cowardice.”

Borenstein has hardly been immune to such scrutiny.  On many occasions he was openly criticized for arguably “light” sentences.  In fact, at one point Reader’s Digest named him one of the worst judges in the country.

“When it came out, of course it angered me,” he recalls. “But I tried to put it in perspective. That was based on three of my decisions. … What angered me is that they ignored all the circumstances behind the decisions.”

In the end, he says, “I’m a judge. The nature of the work means I will get criticized. But you know that bouncing ball in the old movies? I will not lose sight of the bouncing ball.”

‘Amirault,’ et al.

Some say the judge’s defining moment may have been the Fells Acre day care center abuse suit — or the Amirault case — in which he defiantly stood up to the Supreme Judicial Court in granting new-trial motions where he felt that the accused had not been given a fair shake. (A 2005 Lawyers Weekly editorial hailed Borenstein for his courage in that case.)

To this day, Borenstein seems baffled why prosecutors could not admit that the evidence presented to establish child abuse in the case was improper. “No one has asked, ‘Either we did blow it, or might we have blown it?’” he comments.

When pressed for other memorable cases, the judge shares an account of a rape victim who doggedly testified at trial, only to watch as the defendant was acquitted. Borenstein had the opportunity to personally speak to the victim and explain what had happened.

“The fact that a jury found the defendant not guilty was part of the process, but I understood her pain,” he recalls. “She later wrote me a letter telling me that I helped her understand the process. She said, ‘I respect the result and I will live with it.’”

He also remembers the personal-injury case of a man who had a 2,000-pound piece of steel fall on his leg. His injuries were grotesque and permanent.

When the defense offered the man a $2 million settlement, Borenstein unsuccessfully encouraged him to settle. He says the plaintiff looked him in the eye and told him, “It’s not your life. It’s not your leg. The answer is no.”

When the jury came back with a verdict of close to $6 million, Borenstein made a point of thanking the man for being brave enough to tell a judge “no.”

Florida-bound?

As for his “next career” as a practicing lawyer, Borenstein intends to stick around the Boston scene for a while and make his mark in the Massachusetts courts on the other side of the bench.

But somewhere down the road, he might be heading south.

A member of the Florida bar, Borenstein says someday he would like to help “open” up Cuba, his native country. South Florida would be a great base to do that from, he notes.

Before that, however, perhaps early next year, it will be Isaac Borenstein, counsel of record. He says he is not sure what it will feel like to walk into court as a trial lawyer.