Go back to table of contents.
Scroll back to Part III-C1, "Child Witness #1: JO."
[begin page 44]
dismissed; however, allegations that Cheryl took pictures and Cheryl was in the magic room were pursued with vigor. JB talked of a "Miss Ann Marie" as being her teacher. While it is true that a woman named Ann Marie worked at FADS, she never worked there while JB was enrolled. This glaring inaccuracy was also ignored by investigators. The bottom line is that any disclosure that did not implicate this defendant or members of her family was bypassed in favor of pursuing only those that did.
In light of the newly discovered evidence this court is left with the nagging question: How did JB's initial disclosure about a clown abusing her with a pencil and a thermometer evolve into the defendant abusing her with a pencil and a thermometer? (Ex. 56, 10/20-21) JB's allegations against the defendant, as well as the first revelation of physical and behavioral symptoms which may be consistent with sexual abuse, were made only after suggestive, coercive interviews and all the other influences were brought to bear on this child.
As this Court will explain below in more detail, every trick in the book was used to get the child to say what investigators - and eventually her parents - wanted her to say, rather than to learn, in a fair manner whether anything had actually happened to her. Therefore, based on both the aforementioned reasons and the findings of fact, I find that JB's testimony was, and forever will be unreliable, and there is no independent evidence to support her claims.
JB was born on November 22, 1978. (Ex. 56, 4/72) She attended FADS five days
[begin page 45]
per week, from 8:00 a.m. to 3:00 p.m., from August, 1982 until June, 1983. (Ex. 56, 3/7) During the time she attended FADS and until after allegations were made in September, 1984, no one ever expressed a concern about her behavioral or physical well-being. The videotapes of the Kelley interviews suggest that she was a happy well-adjusted child. It is worth noting that JB's parents filed a civil lawsuit against the Amiraults sometime in 1985.
[begin page 46]
she knew about a magic room, a secret room, and a clown. (Ex. 56, 3/12) JB responded that she did not know, so Mother did not pursue this line of questioning any further. (Ex. 56, 3/12). The following morning JB told Mother that she did remember a magic room and that there was a clown there who did magic. (3/56) At that point, Mother remained unconcerned that her daughter had been sexually abused. (3/57)
Between mid-September and mid- December, 1984, Mother had no contact with the police or investigators regarding FADS. The only person she spoke with about FADS was AJ's Mother, JB's occasional baby-sitter. AJ was a student who went to FADS with JB and who was also interviewed about alleged abuse.
In mid-December, Mother read an article in the newspaper which listed signs and symptoms of children who have been sexually abused. Mother concluded that JB exhibited eight or nine of the approximately twelve symptoms on the list, notwithstanding that there had been no prior revelations to anyone of any of these behavioral symptoms. On December 19, 1984, Mother informed JB's pediatrician of her concerns. (Ex. 56, 3/18). The pediatrician advised Mother to contact the police. Later that same evening, Detective Byrne met with Mother and Father at their home, and advised them not to say anything to JB about FADS until after an investigative interview with JB had been videotaped. While Detective Byrne's advice was sound, it was also too late. JB, she had already been exposed to media reports, questioned by her parents and she had been together on several occasions with AJ. (Ex. 56, 3/20). Detective Byrne
[begin page 47]
filed a 51A that day. (Ex. 2A-3)
On December 27, 1984, Mother met with Judith Kirwin, a DSS social worker in her home. Although Mother's testimony and Kirwin's report on this meeting indicate that Kirwin did not speak with JB, at trial JB testified that a lady came to her house and asked her a lot of questions about FADS. (Ex. 56,4-98) Whether this was Judith Kirwin remains unclear. Based on nothing more than the alleged behavioral symptoms, and another child "victim's" implication that JB was sexually abused, the DSS substantiated the report of abuse on December 27, 1984. (Ex. 2A- 18)
On December 28, 1984 Susan Kelley conducted her first interview with JB, an encounter that was unfair, leading, suggestive, and which tainted - forever - any possible way of ever determining whether this child was in fact abused; by now the child had already been exposed to numerous inappropriate influences. The newly discovered evidence proves, beyond any reasonable doubt, that all these techniques were improper and dangerous; a jury, hearing the newly discovered evidence, would have reached a different result. (EX. 2B-1-2; Ex. 31). Despite Kelley's persistent and leading questioning, JB made no disclosures during the approximately 45 minute interview. On the videotape, JB appears to be a happy, relaxed and well-adjusted child. (Ex. 31)
[begin page 48]
Kelley's predisposition against the Amiraults was evident through her use of suggestive interviewing techniques throughout the interview as well as her conclusion that JB had probably been abused, despite the fact that JB made no disclosures even suggesting that she had been sexually abused. For example, JB stated that she saw AJ with her clothes off in the bathroom and Kelley completely passed over this answer. (Ex. 2B-240)
After this interview, Kelley met with JB's parents and told them that she thought JB was sexually abused and that she needed psychiatric help, despite the fact that JB had adamantly denied being abused and that there was no evidence she had been abused. (H 1-263) This led the parents - understandably - to become convinced that their child had been abused.
At the end of the interview, Kelley denigrated the entire process that JB had actively participated in by saying to JB "I just want you to know that if you ever decide that you do want to come and talk to me about AJ and the clown, that you could tell your mommy and your mommy would bring me back to talk to you, okay?" (B-31) Kelley treated JB's denials as though they never happened, thereby indicating to JB that she had not completed her task yet; in fact the child's denials were treated as untrue.
This interviewer was so biased that she engaged in an investigation not to learn what really happened, but to make sure that the Amiraults were convicted; it would only
[begin page 49]
be a matter of time before Kelley would get JB to say what she, the interviewer, wanted to hear. The evidence in support of the motion clearly shows that the mistakes Kelley made are unacceptable in the field, and lead to a miscarriage of justice. During the course of the interview, Kelley employs several inappropriate and suggestive interviewing techniques:
At the outset of the interview, Kelley invoked the theme of "Helping" by informing JB that "AJ was such a big help today. She helped me so much because she told me all about Fells Acres Day Care School, and she knew it was okay to talk to me about it and I want you to know that it's okay to tell me about it too." (Ex. 2B-4) This approach pervades the interview. (e.g. Ex. 2B-7, 21) It is clear that the message to JB is: tell me about Fells Acres and what went wrong there... even if nothing did.
Kelley also used peer pressure to get JB to talk by involving AJ, her friend who was also allegedly abused. At the beginning of the interview, Kelley praises AJ for her help and informs JB that AJ "really likes you" and that she was AJ's "favorite friend" at FADS. (Ex. 2B-4) After asking JB if she remembered any of the teachers at FADS, Kelley told JB "I bet you can name some of them. AJ named some for me." (Ex. 2B-5) Later, when she asked JB about the clown and the magic room, Kelley informed JB that AJ told her
[begin page 50]
about the clown and the magic room and that JB also knew about it. (Ex. 2 B-7) (e.g. Ex. 2B-4, 21)
The risk that peer pressure influenced JB's report is heightened, because as JB remained steadfast in her denials, Kelley explicitly allied herself with AJ. For example, when JB made a statement contradictory to what AJ allegedly said, Kelley informed JB, "I believe her." (AJ) (Ex. 2B- 151) (H 1-243) And when JB told Kelley that AJ is the one who is lying Kelley asked JB "Why would she lie?" This dangerous technique is was used to accomplish only one goal: getting the child to say what the investigator wants her to say, not the truth.
Another example of Kelley's relentless persistence to get JB to give the "right" answers is her use of repetitive questioning. Kelley asked JB five times, using slightly different language each time: "Did you ever see AJ without her clothes on?" (Ex. 2B- 18,
19, 22, 27, 28) After answering "no" the first four times, when she is asked for the fifth time JB, finally, says "yes". Getting the answer she wanted, Kelley enthusiastically follows-up with "You did? Where ... ?" Unfortunately, for Kelley, JB answered "When she
had to go to the bathroom and she didn't know where the bathroom is and I bring her." (Ex. 2B-28) On the videotape, Kelley appeared disappointed with the response. (Ex. 31) The newly discovered evidence persuasively shows the dangers of this approach. The
[begin page 51]
interviewer persisted in planting her own ideas of what happened onto the child, and refused to accept or give credence to the child saying no, nothing happened or I saw nothing.
Kelley utilized anatomical dolls during the course of the interview, focusing primarily on the doll's 'private parts'. (Ex. 2B-9) In introducing the dolls to JB, Kelley stated "All my dolls are very special dolls because they have all the body parts. They have private parts just like real children and real adults do. Do you know what I mean by "private parts"? A: Feet, head, eyes, nose. Q: But they have private parts too." (Ex. 2B-10) Throughout this portion of the interview, Kelley placed a disproportionate amount of attention on the private parts of the dolls, even though JB did not. Even though it would have been normal for a child of JB's age to engage in some sexualized play with the dolls, she exhibited no behaviors of that sort on the videotape.
Kelley frequently used the dangerous and confusing technique of speculation and fantasy in order to get JB to say what Kelley wanted her to say. For example:
[begin page 52]
about the clown and finally, when JB asked "what?" K elley invited her to speculate: Q: What do you think it was? A: I don't know. Q: Are you scared to talk about it? A: No. Q: Okay. A: I'm taking my shoes off. (JB makes no disclosures about the clown). (Ex.
2B-15) Utilizing peer pressure, speculation and creating a negative atmosphere, Kelley pressured JB to give the right response;
b.) JB was instructed to use Bert and Ernie puppets to tell Kelley what happened in the magic room with her, the clown and AJ. She denied that the clown did anything bad and made no disclosures; (Ex. 2B-24)
c.) Referring to a drawing of an anatomically correct girl, the following dialogue take place: Q: Do you think anybody ever touched that girl, or looked at her without her clothes on? A: Yes. Q: Who did that to her? A: I don't -- nobody. (Ex. 2B-28)
It was Kelley, not JB, who introduced the concept of fear into the interview. (H 1-228) The videotape shows JB to be anything but afraid. (Ex. 31) For example, Kelley asked JB "Are you afraid - a little bit afraid to tell me about the magic room? Later in the interview she asked: Q: Are you a little scared to talk about it now? A: No. Q: Because it seems like maybe you are? (Ex. 2B-31) Even when JB unequivocally said "no," Kelley still won't take "no" for an answer.
[begin page 53]
After JB explicitly and repeatedly denied that AJ ever took her clothes off at Fells Acres, Kelley, nevertheless, asked JB "So what did you say to AJ when she had her clothes off at Fells Acres? (Ex. 2B-18) Kelley tried to trick JB into admitting that AJ did in fact have her clothes off, despite JB's consistent denials that she had not. It was a type of forced choice question that will yield an unreliable and untruthful result. (H 1-248)
Kelley utilized stereotype induction by describing the clown as "scary." By repeating this concept, Kelley induces the stereotype of "scary clown" into JB's memory, thereby rendering any disclosures JB makes about a clown consistent with that stereotype unreliable. (H1-228)
[begin page 55]
investigation. Every one of Kelley's actions led the child to make unreliable disclosures. Only with the newly discovered evidence could this defendant have
countered the evidence of children testifying, and resisted the inaccurate and unfair requests of jurors by the Commonwealth throughout the trial to just "use your common sense."
JB allegedly made her first disclosure to her Mother in the car on the ride home after the Kelley interview on December 28, 1984. Mother, Father and JB drove to Father's workplace. (Ex. 56, 3/34) Approximately, fifteen minutes after this inappropriate interview ended, Mother and JB allegedly were sitting alone in the car, while Father went into the workplace. (Ex. 56, 3/35) JB asked Mother if FADS was still there. Mother explained that it was closed. According to Mother, JB began to cry and said that she was scared because Daddy, Mommy, "J" and "P" (her two siblings) were all going to get killed because she was talking. (Ex. 56, 3/36) (The concept of "killing" was not foreign to JB. See Ex. 2B-19 where JB tells Kelley that she said "AJ, be quiet, before I kill you.") Mother asked JB who was going to kill her family and JB said that the clown was. (Ex. 56, 3/39) Mother then reassured JB that no one would hurt her or her family. JB stated that the clown almost put his pee pee on her chest and in her vagina. Mother asked whether he almost did, or if he did and
[begin page 56]
JB replied that he did. She said that he put it in her bum-bum and pee-pee. JB also told Mother that he did the same to AJ. (Ex.56, 3/39-40) The Clown had spanked
them on their bum-bums and in their face and hurt them. (Ex. 56, 3/41) They also had to put lipstick on their face and that someone "other than Tooky or Michelle"
had taken pictures and that they had to take their clothes off for the pictures. (Ex. 56, 3/42) There were thermometers and pencils put in their bum-bums and vagina. (Ex. 56, 3/43) When Father returned to the car, they drove home and Mother immediately contacted the Police Department and then she wrote down the entire
conversation with JB that took place in the car. (Ex. 56, 3/48)
JB was interviewed a second time by Kelley on January 11, 1985. JB discloses that Shasha the clown gave her a spanking in the magic room when her pants were off (Ex. 56, 3/38) and his clothes were off (Ex. 56, 3/46). Also intermingled in these allegations was that Shasha did something with fire. (Ex. 56, 3/42) Miss Cheryl took
pictures of JB while she was in the magic room with her clothes off. (Ex. 56, B-53) "Karen" also took pictures of JB when the clown was sticking the thermometer in her
pee pee and/or bum bum. (Ex. 56, 3/54) Miss Cheryl put a thermometer in her pee pee and bum bum. (Ex. 56, 3/55) Also Tooky was spanking Miss Cheryl in the magic room. (Ex. 56, 3/55)
[begin page 57]
Kelley, following up on her earlier strategy, utilized all of the aforementioned suggestive interviewing techniques once again at this second session. For example:
(before JB has an opportunity to respond)
Were you scared?
A: No. (B-35):
Q: No, she didn't come see me today. Have you seen AJ recently?
A: Yes. AJ knows the clown's name
Q: She does? Which one does she know?
A: Well, the name is ....
Q: Where did you see the boy clown?
A: In day care. On the news we see day care and its all closed up.
Q; That's right. Do you know why it's all closed up?
A: 'Cause the people were bad.
A: Yes.
Q: Who do you remember their name?
Q: I don't know if she did or not; was Miss Cheryl in the room?
A: Yes.
Q: She was?
A: (Inaudible) Do you know the little girl with the white hair. I want to go ask my mommy what the girl's --JB goes on to testify that Cheryl told the clown to "knock it off" when he was spanking tke kids. This is not pursued by Kelley.
A: I don't talk to my daddy.
Q: No? Why not?
A: He'll scream.
Q: He'll scream?
A: He screamed - He screamed outside.
Q: He did? Who'd he scream at?
A: Me.
Q: You?
A: Not me. He said 'You (inaudible).
At the end of the second interview, with the use of a leading question, Kelley tried to elicit from JB why she said nothing happened at the first interview.
[begin page 59]
A: Yes.
Q: You were scared? Why were you scared?
A: Because--Amy --I said tell my mommy. "If you don't let AJ come I'm going to punch you in the nose."
In February, 1985, according to Mother, JB told her that Miss Cheryl took pictures of them without their clothes on and that Miss Cheryl had put pencils and thermometers in their bum-bum and pee-pee.
Go back to table of contents.
Disclosure History
Mother learned of Gerald Amirault's arrest in early September, 1984 on the news and did not attend the meeting at the police station. (Ex. 56, 3/9) About one week after FADS was closed down, in response to an article she read in the newspaper, Mother contacted the police with some questions. (Ex. 56, 3/9-10) Mother spoke with Detective Byrne who told her to choose a quiet time to ask JB about a magic room, a secret room, and a clown. (Ex. 56, 3/9-10) At that time, Mother did not know the significance of those three words and Detective Byrne did not tell her. (Ex. 56, 3/11) This was extremely inappropriate as Mother was in no position to conduct such critical and important questioning, and - as we now know from the newly discovered evidence - it risked leading the child into making unfounded allegations. This was the beginning of planting in the child ideas about alleged events; rather than having the child explain without suggestion what, if anything, happened to her. Mother then questioned JB if
The first Susan Kelley Interview
Interviewer Bias
The videotape of the first Susan Kelley interview was played for the jury at the end of JB's cross-examination at trial. (Ex. 56, 4/126-127) In the absence of the newly discovered evidence it would have been impossible for the jurors to understand the impact of Kelley's actions. The actions of Kelley, I find, clearly and consistently violated every requirement of a fair interview seeking truthful answers in a neutral1. Theme of Helping
2. Peer Pressure
3. Repetitive Questioning
4. Anatomical Dolls and Drawings
5. Pretending/Speculation/Fantasy
a.) Throughout the interview, Kelley told JB that AJ told her something
6. Negative atmosphere
7. Leading Questions/Misinformation
8. Stereotype Induction
JB's First Disclosure
The Second Susan Kelley Interview
Negative Atmosphere:
Between the time of her initial disclosure and the time she testified at trial, she participated in over thirty-five group therapy sessions with AJ. (Ex. 2A-23-57) From January, 1985 until July, 1985, these sessions were on a weekly basis. During therapy, JB and AJ played with anatomical dolls and often discussed what happened at FADS. (Ex. 2A-23-57)
Q: What did you think about coming back to talk to me again?
Peer Pressure and Cross-contamination:
JB asks: A: Is AJ here?
Peer Pressure and Cross-contamination:
(EX. 2B- 37)
Q: Were there any teachers in the magic room with Shasha?
[begin page 58]
A: Did AJ say Miss Cheryl?
Leading questions:
At one point JB offered:
Q: ... [W]hen we were talking about if anything happened and you said nothing happened, could you just tell me why-- were you afraid to tell me?
(Ex. 2B-77)
Scroll ahead to continuation of Part III C2, "Child Witness #2: JB" (JB's testimony in court).