Pilgrims’ progress
Further Reading
Gerald Amirault's Ordeal
The first conviction in the '80s wave of misbegotten daycare molestation cases occurred in January 1985,...
Bernard Baran's Nightmare
The first conviction in the '80s wave of misbegotten daycare molestation cases occurred in January 198...
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Hunting witches, then and now...
By
Jim D'Entremont
"It's true," wrote columnist Alexander Cockburn in a May, 1997 issue of
The New York Press. "There are more loathsome people per square foot in Massachusetts than in any other state of the union. The downmarket Nazis and racists are worse. The upmarket liberals are worse.
The fancy columnists are worse. The yahoo columnists are worse. The churches are worse. The sports fans are worse. The food is worse. The Boston traffic is worse. The weather is worse. And the judges...."
Cockburn's rant has factual merit, but "And the prosecutors...." might have made a more incisive conclusion. The real epicenter of prosecutorial misconduct in America lies elsewhere-- in Texas, perhaps-- but the Bay State has its own uniquely noisome strain
of prosecutorial culture. Massachusetts judges, who are variously principled, wise, quirky, curmudgeonly, blinkered, borderline psychotic, and irredeemably sleazy, are less easily pigeonholed.
Massachusetts prosecutors, on the other hand, seem generically prone to media whoredom and political rapacity. Most have adopted a crowd-pleasing lock-'em-up-and-throw-away-the-key posture that sanctifies victims, demonizes miscreants, and enshrines their own
images in public consciousness. Given limitless access to a fawning, uncritical press, they tend to be far more interested in the perks of stardom than in justice. Because nothing sells or commands attention better than sex, much of their showmanship centers on real or confabulated
sex crimes.
Recently, prosecuting attorneys in Suffolk County (which includes inner-city Boston along with Bristol County, which encompasses working-class New Bedford) have sought to make political capital out of clashes with judges they portray as soft on sex offenders.
After examining evidence at the August, 2000 bench trial of Charles "Ebony" Horton, 21, Suffolk County Superior Court Judge Maria Lopez told the defendant's court-appointed defense counsel and the opposing team of prosecutors that if Horton entered a plea of guilty,
she was prepared to impose a probationary arrangement. Assistant District Attorneys David Deakin and Leora Joseph responded by sending local print and broadcast media a press release announcing, in bold type, that "Charles Horton, 31
[sic], a transgendered person who appears
as a woman" was about to plead guilty on child molestation charges. Their hope was to embarrass Lopez into handing out a prison term, while gilding their own reputations as champions of children preyed upon by perverts.
Horton, who wears women's clothes, was charged with kidnapping, assault with intent to rape a child under 16, indecent assault and battery on a child under 14, assault and battery, and assault and battery with a dangerous weapon. In November 1999, she had allegedly
lured a 12-year-old-boy into her car, threatened him with a screwdriver, and forced him to suck on the screwdriver handle. Suffolk County prosecutors urged that Horton be imprisoned for eight to 10 years in a men's correctional facility, knowing that the additional availability of
one-day-to-lifetime civil commitment meant that Horton might never emerge from incarceration.
Lopez disagreed. Neither Horton's criminal record nor her medical history indicated any sexual interest in prepubescent children. Psychological assessments suggested, as Lopez noted later in responding to misconduct charges, "that the risk that Horton would repeat
the offense behavior was low and the risk of serious harm to Horton if imprisoned was high." The crime-- which has ambiguous aspects and may have entailed a gift of $50 from Horton to the boy-- had not involved sexual penetration or physical injury of any kind.
Accordingly, over the objections of prosecutors, Lopez sentenced Horton to a year of house arrest followed by four years' probation.
During the contentious hearing process, Lopez told well-manicured Assistant DA Leora Joseph, "You belong in the suburbs." At one point, she told Deakin to sit down and be quiet. Because Lopez had allowed limited use of cameras in the courtroom, moments when
she registered annoyance or raised her voice were videotaped. An out-of-context clip showing Lopez berating Deakin was shown on local television news programs again and again.
"I have been treated far worse by judges in situations where I did nothing other than advocate my client's rights," says criminal defense lawyer Harvey Silverglate, a former president of the Massachusetts ACLU, "and I never thought to complain. A little roughness goes
with the territory in the trial of criminal cases." Anyone shocked by Lopez's testiness has not seen Massachusetts Superior Court Judge Hiller Zobel contemptuously tossing portions of a lawyer's brief to the courtroom floor one page at a time, or other judges hectoring or shouting
at both prosecutors and defense attorneys.
But the Massachusetts judiciary becomes especially high-minded when courtroom sessions are caught on camera-- and when prosecutors like Joseph, who had a history of clashes with Lopez, want a judge to be publicly hung out to dry. Accused of six ethical
violations by the state Commission on Judicial Conduct, Lopez soon became the object of a highly politicized, media-driven process of censure.
Lopez and her lawyer, Richard Egbert, answered the charges with a point-by-point rebuttal defending her handling of the Horton case, questioning the prosecutors' competence and veracity, and insisting that Deakin and Joseph's press release was "clearly designed to
turn the court proceedings into a media circus and freak show designed, among other purposes, to heighten public condemnation of Horton."
In a book-length ruling, retired Housing Court Judge E. George Daher, who presided over Lopez's disciplinary hearing, called her behavior "antithetical to proper judicial demeanor" and compared her to feisty TV personality Judge Judy. He said that she had exhibited
anti-prosecutorial bias and lied under oath. He attributed Lopez's contention that Horton was unlikely to reoffend to her "stereotyping of transgendered people." His recommendations were that Lopez be suspended without pay and made to apologize to the people of
Massachusetts. Faced with ongoing turmoil, Maria Lopez resigned from the bench on May 19.
Fairness-- get over it
The target of a similar smear campaign, Bristol County Superior Court Judge Ernest B. Murphy, fought back and remains on the bench. In February 2002, Murphy enraged prosecutor David Frank by sentencing an 18-year-old accused rapist and armed robber, Dean
McSweeney, to eight years' probation and substance-abuse counseling. The next day, the tabloid
Boston Herald ran a front-page story headlined
murphy's law, in which reporter Dave Wedge accused Murphy of setting rapists free, of having a "pro-defendant stance," and of making light of a
teen-age rape victim's anguish by saying, in a lobby conference, "She's 14. She got raped. Tell her to get over it." (Wedge, who was not present, later claimed the statement was made as Murphy left the bench.)
Murphy denies having made the "get over it" remark, which does not appear in any transcript material and was not heard by anyone in court. Even the original
Herald piece conceded that the quote was based on hearsay. Nevertheless, the tale of the judge who coddled a
rapist while telling his victim, "Get over it" was hyped in local and then national media, and became legend. As public indignation caught fire, anonymous threats were made against Murphy, his wife, and their five children. Murphy received abusive letters and phone calls. Someone
mailed him a wad of used toilet paper.
Lost in the uproar was the fact that McSweeney, a first-time offender who was 17 and intoxicated at the time of his offenses, had committed statutory, not forcible, rape of the 14-year-old sister of a female friend. The rape charges were based on an instance of
digital penetration that may have been consensual, and another incident where McSweeney entered the girl's bedroom and unsuccessfully pressured her for sex. McSweeney was also charged with robbing a convenience store.
The robbery and rape charges were tried together; McSweeney pleaded guilty to both. Prosecutors requested a 7-to-10 year sentence at the notorious MCI Cedar Junction in Walpole, Mass. Sentencing statutes governing the robbery conviction left Murphy with a
choice between a minimal five-year sentence or probation. Reluctant to send an 18-year-old with no prior convictions to a maximum security facility full of violent felons, Murphy placed McSweeney on probation, and ordered him to remain clean and sober during that period.
Outraged, the prosecution went to work. According to a report by David Yas in the November 4, 2002
Massachusetts Lawyers Weekly, the sources of the "get over it" remark were an unnamed prosecutor in Bristol County DA Paul Walsh's office, Walsh himself, and a
third confidential source whose identity remains a mystery. Prosecutor Frank has submitted an affidavit admitting that he never heard Murphy make such a statement. Amid rumors that the Commission on Judicial Conduct had launched an investigation, Murphy filed a libel suit against
the Herald. Murphy's suit has not yet come to trial.
Sex panic-- Made in Boston
The Boston Herald's trademark Stone Age rhetoric helped bring down Lopez and damage Murphy, but its hyperbolic peak occurred in 2002 when, luridly reporting charges of child molestation by Roman Catholic priests, the paper ladled out a steady, high-caloric diet of
priest-porn to its salivating readers. It was nevertheless Boston's other daily, the
Boston Globe, a comparatively staid broadsheet, that rocketed the recent clump of priest scandals into the stratosphere. Beginning in January 2002, with the eager cooperation of Suffolk and Middlesex
County DAs and Assistant DAs-- and of civil litigants behaving like prosecutors-- the
Globe's investigative Spotlight Team, angling for a Pulitzer, helped pump the story into worldwide moral panic.
In relentlessly exploitive print and broadcast coverage, dozens of priests across the Archdiocese of Boston were subjected to trial by media in which proof of guilt was a superfluity. Caught in the net of sexual McCarthyism were men who probably committed no crime at
all, along with others whose offenses ranged from serious to trivial. Prosecutors jumping on the priest-scandal bandwagon included Suffolk County Assistant DA David Deakin, who implemented the destruction of Maria Lopez.
Most notably, Deakin helped secure a nine-to-10-year prison term for Father John Geoghan, a priest accused of a 30-year mass-molestation spree, but convicted only of reaching down the back of a 10-year-old boy's bathing suit in 1986. Most of Geoghan's additional
130-plus accusers-- many of them solicited by attorney Mitchell Garabedian-- seem to have cases of comparable merit, if any. They continue to play an important role, however, in what Daniel Lyons in the June, 2003 issue of
Forbes describes as a "litigation gold rush" that
has brought the Archdiocese of Boston to the edge of bankruptcy.
The best known priest case, that of Rev. Paul Shanley, falls under the jurisdiction of Middlesex County District Attorney Martha Coakley, whose fiefdom extends from the northern periphery of Boston to the New Hampshire line. In 1998 Coakley staked her claim to the
DA's office by gaining international name recognition as chief prosecutor in the Cambridge murder trial of British nanny Louise Woodward. A Democrat who enjoys a degree of gay support, Coakley is-- like lesbian State Senator Cheryl Jaques (D.-Needham) and much of
the Massachusetts gay establishment-- thoroughly steeped in victim politics. Her 1993 career-launching conviction of grandparents Ray and Shirley Souza was based entirely on "recovered memories" produced in therapy.
Traumatic memory repression is a vital factor in the still-pending prosecution of Father Shanley. Now vilified as a child rapist, Shanley, 71, was once Boston's much-admired "street priest" who in the late '60s and early '70s helped hundreds of strung-out, homeless
teens. Misidentified as a cofounder of NAMBLA, Shanley may be attracted to young men, but has no history of sexual interest in children. Nevertheless, after reading an innuendo-clogged attack on Shanley in the January 31, 2002
Globe, Greg Ford, 25-- a veteran of 17 sojourns in
mental institutions-- began producing memories of sexual attacks by Father Shanley over a five-year period beginning when he was six. With encouragement from Ford and his lawyer, Roderick MacLeish, three of Ford's friends and former classmates have "recovered" similar memories.
Most reputable mental health professionals concur with Harvard psychiatrist Richard McNally's assessment of traumatic memory repression as "folklore," but Martha Coakley has based a number of prosecutions on such evidence. Whether she actually believes in
repressed memory is unknown. "The fact is," says Paul Shannon, one of Shanley's key supporters, "Coakley is a very dishonest person who has done tremendous grandstanding on this case. As a DA, she's been despicable."
Using the Shanley case as a wellspring of publicity, Coakley fueled local and national press coverage of Shanley's "capture" at his home in California by a Channel 4 news crew from Boston, and his subsequent arrest and return to Massachusetts. Now, however, in the
aftermath of Daniel Lyons's damaging Forbes article, new evidence of Ford's history of accusing everyone in sight, and other information casting doubt on the purported victims' stories, Coakley may be backing off.
Salem all over again
Supporters of the Amirault family know that Coakley does not back off easily. Thanks to the efforts of prosecutors, Massachusetts is the only state where high-profile 1980s sex-abuse convictions of daycare workers have not been voided or overturned. The plights of
Gerald Amirault and former Pittsfield resident Bernard Baran follow a Massachusetts tradition that includes the 1692 Salem witchcraft trials and the 1927 executions of Niccolo Sacco and Bartolomeo Vanzetti.
Amirault and Baran owe their incarceration to hysteria surrounding "ritual abuse" in day care centers that spread across America from the bogus McMartin case, which broke in 1983 in California. The Baran case, sparked by media hype of the Amirault case, went to trial
first. On January 31, 1985, Baran (see box), then 19, was sentenced to three concurrent life terms and sent to MCI Cedar Junction, the prison where young Dean McSweeney would have been placed if Judge Murphy had not spared him the experience.
On the day Baran's trial began, Violet Amirault, her daughter Cheryl, and her son Gerald (see box) were indicted on 18 counts of child abuse. The Amiraults had operated Malden's Fells Acres day care center without incident for 14 years. The case was a
headline-grabbing prosecutorial romp that helped elevate DA Scott Harshbarger to the office of State Attorney General, and brought career-boosting notoriety to prosecuting attorneys like Tom Reilly, who would succeed Harshbarger first as Middlesex County DA, then as Attorney General.
Spread over two trials-- one for the women, one for Gerald-- much of the Amirault prosecution was pursued through the
Globe, the Herald, and local TV news. Chief trial prosecutor Larry Hardoon fed the press the story, inadmissible in court, that the DA's office
was certain the Amiraults had been manufacturing child pornography. The scenario Harshbarger's office concocted was that Violet and Cheryl conspired with Gerald to shoot lewd pictures of children to fund his cocaine habit. Despite the ludicrousness of charges-- involving
lobsters, robots, and a magic room-- not to mention the utter absence of any Fells Acres kiddie porn, the out-of-court efforts of the prosecution team convinced the public that
something must have occurred. In court, after hearing coached testimony of child witnesses, juries
convicted all three Amiraults.
When the women were freed in 1995 after Judge Robert Barton ruled favorably on a new trial motion, prosecutors contested the ruling all the way to the state's highest court. Violet died in 1997. Honoring the legacy of Scott Harshbarger, Coakley continued to insist on
the reality of nonexistent "physical evidence," and fought to have Cheryl Amirault returned to prison when the state supreme court turned down her final appeal. In the face of mounting public doubt about the case, Coakley crafted a face-saving agreement that allowed Cheryl to
remain free if she adhered to various conditions, including a ban on TV appearances.
"There was, to be sure, a reason for the no-television proscription that had little to do with the suffering of the innocent children and much to do with the prosecutors' target political audience," writes
Wall Street Journal editor Dorothy Rabinowitz in
No Crueler Tyrannies, her book about wrongful convictions. "The audience that television reached was not only huge; it was also the most emotionally accessible one."
Hiding evidence
"The Middlesex County DA's office is a stepping-stone to the State Attorney General's office," points out Dennis Maher. "Harshbarger used it for that purpose; so did Tom Reilly. You think Martha Coakley plans to pass that up?"
Maher, a former Army sergeant from Lowell was wrongfully convicted in 1984 on two counts of rape. Insisting on his innocence, Maher sought DNA testing of the rape victims' semen-stained clothing. Coakley's office stonewalled, denying at first the existence of
potentially exculpatory evidence in one of the cases-- and might be denying it still if a state employee with a key had not found the material and told an investigating law student where it was stored. The student was acting on behalf of the New York-based Innocence Project, which has
been using DNA evidence to exonerate the wrongfully convicted-- when it can obtain the evidence.
When DNA tests in both rape cases proved negative, Coakley's office tried to offer Maher a deal: if he conceded guilt on one count of rape, he could be sentenced to time served and released. Knowing that Coakley had no choice but to release him anyway, Maher's
attorney angrily rejected the offer. At Maher's April 3, 2003 release hearing, Coakley issued a
pro forma apology, then held court for the press. She belittled the Innocence Project, disputing its version of the quest for evidence, and took whatever credit possible for the outcome of the case.
Massively rotten
The behavior of Martha Coakley and many of her colleagues belies the image of Massachusetts as a bastion of justice and democracy. At present, the Cradle of Liberty is a hotbed of authoritarianism. Its socially progressive political strain runs parallel with, and
sometimes intersects, its Puritan antipathy toward personal autonomy and freedom of thought. In Massachusetts, local offshoots of right-wing pressure groups like Focus on the Family attract at least as much support as the ACLU.
Some attribute the erotophobia and moral rigidity of Massachusetts prosecutors to Catholicism, especially Irish Catholicism. But while some DAs' offices across the state are teeming with alumni of Jesuit Boston College, an equally repressive prosecutorial subset has
Harvard credentials. The entitlement-steeped circle of Harvard Square wine-and-cheese liberals notably includes perennial political aspirant Scott Harshbarger and Margaret Marshall, now Chief Justice of the Supreme Judicial Court (SJC) of Massachusetts. "The SJC is a politicized entity,"
says one prominent Boston attorney, "and Marshall is a total political player."
"In New York, I've seen a lot more collegiality between prosecutors and defense attorneys," says Boston trial lawyer John Swomley. "They have drinks together. There's common ground, there's some mutual respect. But in Massachusetts, there's no interface between
those two camps. The DAs and their underlings here show overt contempt for the defense bar. They have an extremely clubby relationship with judges, including judges who sit on the SJC, and their attitude is, 'We can do whatever the fuck we want because we have power and you don't.'"
The Massachusetts prosecutorial style mirrors and bolsters a national trend. In a climate where a simple touch spells rape, the incarceration of men, women, and even children who are innocent-- or culpable only of minor, nonviolent sex crimes-- is increasing across
the US. In 1988, when Democratic candidate Michael Dukakis, former Governor of Massachusetts, lost a Presidential election to George Bush
père, one key issue was Dukakis's support of a prison furlough program that put murderer/rapist Willie Horton back on the street. Outrage
against Dukakis's supposed willingness to pamper criminals reflected a national drift toward vengeful punition and away from civil rights. Backlash against compassion for the accused and the convicted is especially strong in Dukakis's home state.
Early in June, still threatened with fines or disbarment, Maria Lopez agreed to admit to a generalized charge of judicial misconduct without conceding that she had committed any specific ethics violation. The Commission on Judicial Conduct released new guidelines
warning judges to use restrained language and facial expressions in court, and to exercise self-censorship out of court. Ebony Horton, who has committed no new crimes, is now registered as a high-risk sex offender. The boy she invited into her car, now 15, is reportedly doing well in
school. At a time of draconian budgetary cutbacks, Lopez's disciplinary proceedings cost the Commonwealth of Massachusetts $200,000.
The real cost cannot, of course, be measured in dollars. "The message the Lopez case sends to judges," says John Swomley, "is that you had damn well better do what the DA wants."
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