More excerpts of Judge Barton's decision freeing Cheryl and Violet Amirault

                     Copyright 1995 Lawyers Weekly, Inc.
                          Massachusetts Lawyers Weekly

                               September 11, 1995

SECTION: THE WEEK'S OPINIONS; Superior Court; Pg. 8

LENGTH: 1482 words

HEADLINE: Criminal Law Confrontation Of Witnesses - Child Rape Trial

 BODY:
   Where defendants were convicted on multiple charges of child rape
and indecent assault and battery on a child, the convictions must be
vacated because, at trial, the seating arrangements ordered by the
judge resulted in a denial of the defendants' right to face-to-face
confrontation of the witnesses against them.

   Having so held, I allow the defendants' motion for a new trial.
 
Violation Of Right To Confront

   "The defendants claim that their right under Article 12 to a 'face
to face' confrontation of their accusers was violated.  The defendants
allege that the special seating arrangements of the child witnesses
deprived them of their constitutional rights to a fair trial.  The
defendants base their motion on the recent Supreme Judicial Court
decision.  <=1> Commonwealth v. Johnson, [417 Mass. 498 (1994)]. The
three issues before the Court on this motion are whether there was a
violation of the defendants, right to a 'face to face' confrontation;
whether the defendants waived that right; and whether <=2>
Commonwealth v. Johnson, supra, is applied retroactively to this case.

   "The Court, in the Johnson case, held that Article 12 of the
Declaration of Rights of the Massachusetts Constitution which
provides, in part, that 'every subject shall have a right . . . to
meet the witnesses against him face to face' requires that a defendant
must be given an opportunity to observe the face of a witness . . .
'Face to face,' the court concluded, literally means 'face to face.'
. . .

   "The Supreme Judicial Court held that it is unconstitutional for a
child witness to testify with his/her back to the defendant.

   "The Supreme Judicial Court has previously ruled that a forty-five
degree angle between a defendant and a witness does not violate the
confrontation clause of Article 12 since a forty-five degree angle
allows the defendant to see the complainant's profile and to see the
movement of the complaint's . . . In the present case, the Court finds
that when the child witness turned towards the interrogating lawyer,
the back of the child's head was turned towards the defendants.  The
Court finds that in the case at bar, when the child was facing the
jury, the angle between the child seating for child witness and the
defendants was between 112 and 145 degrees.  At such great angles it
was impossible for the defendants to see the children's profiles or
the lip movements.  The special seating arrangements for the children
witnesses prevented the defendants from confronting their accusers
face to face; thus, there was a violation of the defendants' rights
under Article 12.

   "The defendants made an objection at the time of trial to the
special seating arrangements of the children witnesses for reasons
other than an infringement of Article 12.  The defendants never raised
the issue that the special seating arrangements were a violation of
their right to a 'face to face' confrontation in any of their appeals
nor in any of their prior Motions for a New Trial.  When a issue could
have been previously raised and was not, that issue is deemed to be
waived unless such a waiver creates a 'substantial risk of a
miscarriage of justice.' (Emphasis added).

   "The Supreme Judicial Court has held that there are special
circumstances when an issue not previously raised can be first
addressed during a Motion for a New Trial . . . The exception is when
a constitutional issue is not raised at trial or on direct appeal and
'the constitutional theory on which the defendant has relied was not
sufficiently developed at the time of trial or direct appeal to afford
the defendant a genuine opportunity to raise his claim at those
junctures of the case.' . . . The Supreme Judicial Court did not
decide that special seating for child witnesses violated a defendant's
right to 'face to face' confrontation until 1994 in <=3> Commonwealth
v. Johnson, supra at 505, approximately seven years after the trial of
these defendants.

   "The defendants did not waive the issue of 'face to face'
confrontation by failing to raise it either on appeal or in previous
Motions for a New Trial.  It was not until <=4> Commonwealth
v. Johnson, supra at 500, that Article 12 was interpreted in such a
way as to require that the defendant be able to see the complainant's
face.  <=5> Commonwealth v. Johnson, supra at 504, held that a
forty-five degree angle between the defendant and the witness was
sufficient to meet the constitutional requirement to 'face to face'
confrontation . . . The ruling of Commonwealth v. Johnson was 'not so
predictable when this case was tried, or when it was argued, that the
defendant[s'] failure to challenge previously their right to "face to
face" confrontation should preclude [them] from doing so now.' . . .
Even if the Court is in error as to whether the defendants should have
earlier raised their right to 'face to face' confrontation, the right
to confrontation is so fundamental to the trial process that by
depriving the defendants of that right, justice was not served.

   "The final issue is whether <=6> Commonwealth v. Johnson, supra may
be applied retroactively to this case.  The United States Supreme
Court had held that new constitutional rules are not retroactive
unless 'it requires the observance of "those procedures that . . . are
implicit in the concept of ordered liberty."' . . . Our own Supreme
Judicial Court has held that a 'new rule should be applied
retroactively if not to do so would "undermine the fundamental
fairness that must underlie a conviction or seriously diminish the
likelihood of obtaining an accurate conviction."' . . .

   "The right to 'face to face' confrontation is guaranteed by Article
12 because it is so fundamental to a defendant's right to a fair
trial.  The special seating arrangements of the children witnesses
prevented the defendants from confronting their accusers 'face to
face.' When the purpose of a new precept if [sic] 'to overcome an
aspect of the criminal trial that substantially impairs its
truth-finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials, the new rule [is] given
complete retroactive effect.' . . . In <=7> Commonwealth v. Johnson,
supra at 502, the Supreme Judicial Court interpreted Article 12's
right to 'face to face' confrontation to mean that 'a defendant must
be given an opportunity to observe the faces of all witnesses who
testify against him at trial.' The special seating of children
witnesses which prevented the defendant from seeing their faces was a
violation of the right to confrontation . . .

   "<=8> Commonwealth v. Johnson, supra, should be applied
retroactively at least as far as the present case is concerned.  The
right to confrontation is so fundamental to our justice system that a
violation of that right creates a substantial miscarriage of justice.
The Commonwealth's entire case depended upon the credibility and
reliability of the children witnesses.  The testimony of the children
was the critical evidence in the case and the verdict was based on the
jury believing that testimony.  The only percipient witnesses were
children.  By appearing to elevate and/or to protect those children by
very special furniture and seating arrangements, the jury was
indirectly instructed to judge the credibility and demeanor of the
children in a different light than they would a mature witness.  The
unusual seating arrangements for the children witnesses, like those in
<=9> Commonwealth v. Johnson, supra at 500-501, prevented these
defendants from receiving a fair trial under both the United States
and the Massachusetts Constitutions.

   "The special seating arrangement for the children prevented justice
from being done.  The Constitution and the rights it affords are
fundamental and should be upheld despite any intervening factors.  In
this case, as in Commonwealth v. Johnson, 'to interpret Article 12 as
requiring only that the witnesses be in the physical presence of the
defendant, without the defendant's being able to observe the face of
the witness' would render the words 'face to face' superfluous
. . . In the present case there was a clear constitutional violation
of the defendants, right to a fair trial.  No matter how heinous the
alleged crimes, the Constitution should not be compromised."

   Commonwealth v. Amirault, et al. (Lawyers Weekly No. 12-340-95) (13
pages) (Barton, J.) (Middlesex) (Criminal Nos. 85-60, 85-61, 85-2671,
-2673, -2674, 85-63, -64, -66, -67, 85-2678 through 85-2680).