Fells Acres pardons illustrate issues with police interrogating children, legal analyst says

Last week Governor Charlie Baker pardoned six people convicted of serious crimes, and granted another request to commute the sentence of a man serving a life sentence for murder. This was Baker's most significant use of his clemency power to date. Among the recommended pardons were Gerald Amirault and Cheryl Amirault Lefave, two siblings who were convicted of sexually abusing children in the notorious Fells Acres case in the 1980s. GBH News legal analyst and Northeastern law professor Daniel Medwed joined Morning Edition co-host Paris Alston to talk about the case. This transcript has been lightly edited.

Paris Alston: It seems like Governor Baker is really trying to go out with a bang here with all these commutations, right? So let's start with the basics. What exactly is clemency and what are its origins?

Daniel Medwed: Clemency is the power of an executive official to display mercy to somebody who's been subjected to a criminal sanction in the jurisdiction. There are two basic types of clemency. A pardon is when you forgive the underlying crime and basically erase the conviction from your rap sheet. A commutation is when you reduce the person's prison sentence. This dates back to ancient Rome, when Julius Caesar would cite the goddess Clementia, the goddess of mercy or forgiveness, to display kindness to fallen enemies on the battlefield. Nowadays, it's enshrined in the federal constitution and in Article 73 of our state constitution. And the idea is that there should be some government official, be it a king, a queen, a president, or a governor, who has this magnanimous power to display mercy when perhaps someone hasn't gotten recourse through the litigation system.

Alston: So, Daniel, how does this work here in the commonwealth? Do governors have complete power to issue these decisions just as they see fit?

Medwed: Not exactly. We've developed what's sometimes called a hybrid model here in the commonwealth, where the parole board takes the first crack at these petitions. There are seven members of our parole board and they serve staggered five-year terms and they have the power to review pardon and commutation requests, order hearings when necessary and ultimately make recommendations to the governor.

Now, these recommendations are non-binding. The governor can basically do whatever he or she sees fit. And in fact, it appears as though Baker, with respect to some of these decisions last week, might have gone rogue — might have done things that were not necessarily sanctioned or blessed by the parole board. But then when the governor does make an announcement, make a decision about a pardon or commutation, that decision is subject to a final layer of approval by the Governor’s Council. So it's basically three entities: the parole board, the governor and the Governor’s Council have a hand in this process.

Alston: Let's talk about one specific case, the Amirault case, which includes two siblings who were pardoned by Baker last week. And this is all surrounding a really high profile case from the 1980s. Remind us of the facts there.

Medwed: Two siblings, Gerald Amirault and Cheryl Amirault Lefave, were accused of sexually assaulting more than a dozen kids at the Fells Acres Day Care center in Malden that they ran in the 1980s. And the case started in 1984 when a five-year-old kid told his uncle that Gerald, who was known as Tooky, that was his nickname, had molested him.

Gerald worked as a bus driver, a cook and assistant director of the daycare facility. Things sort of snowballed from there. The police investigated and interviewed scores of kids. In the 1986 trial against Gerald, 10 parents testified and nine children came forward as well, and detailed sort of graphic accusations of sexual assault. Gerald was convicted and then later, so too was the sister, Cheryl, and their mother, Violet, who's since died. That's sort of the backdrop.

Alston: And, yes, Daniel, this, of course, was a pretty controversial and high-profile case right from the very beginning. But even back then, people were sort of skeptical about the Amiraults' guilt. Is that correct?

Medwed: That's correct. So I think it's really important to look at the historical context here, Paris, as you intimated. So first, this was a time of hysteria when it came to daycare center concerns, and concerns about sexual abuse. And there were cases across the nation, many of them very specious, that were filed against daycare workers. So I think it's important to look at this in terms of the zeitgeist of the time.

Second, now we know a lot more about how suggestible and malleable child witnesses can be when they're interrogated by the police and how they often will say whatever they need to say to please adult authority figures. Nowadays, in fact, we have very specific protocols — they're called SANE interviewing techniques: Sexual Assault Nurse Examiners techniques — to make sure that there isn't too much suggestiveness in the process.

But even back then, there was a concern that the police had used coercive interrogation techniques to elicit these sorts of accusations from the kids. And in the 1990s, a number of videotapes and transcripts of these interviews revealed that, in fact, that had been the case, that occasionally kids would start off the interview by saying nothing had happened, but the police would prod and probe them to the point where they would eventually relent. In some instances, the police even promised gifts, apparently in exchange for the, quote unquote, correct answer. So questions about innocence have been swirling around this case for nearly 40 years. But the courts have never seen fit to do anything about it.

Alston: Wow. A lot of different tentacles there. So, Daniel, as a legal matter, what do these pardons mean for the Amiraults? And is being pardoned by a governor the same thing as being declared innocent by a court?

Medwed: No, it's not. And here's why: For one thing, these pardons still have to go through the Governor’s Council, as we discussed. And while the Governor’s Council has generally rubberstamped or greenlit Governor Baker's previous pardon and commutation requests, this one is different. There's an indication that maybe the Governor’s Council will actually hold hearings on the Amirault case. We'll have to see in the next few days.

Second, as we discussed at the outset, clemency is all about forgiveness. It's all about mercy. It's an act of grace. It's not an opportunity to reexamine the underlying facts about guilt or innocence. As I like to say, it's about the suitability of the convicted for forgiveness, not the suitability of the conviction as a factual matter to stand.

So with that said, there are major, major ramifications, especially for Gerald. He's been wearing an ankle monitor for decades. He's on the sex offender registry. He has to go to his parole officer. He has to take polygraph tests. There are restrictions on interstate travel. So he's been under the yoke of these convictions for many years. And now finally, to some extent, he'll have a little bit more liberty.