The Last Victim By Rael Jean Isaac
https://www.nationalreview.com/magazine/2018/09/10/the-last-victim/
On January 23, 2014, the Florida Parole Commission sent Frank Fuster a letter informing him that, owing to a recent policy change, it had determined that his initial interview was scheduled for March 2134. No, that isn’t a misprint. His first parole hearing is scheduled in 120 years. And this for a crime that, by any fair reading of the evidence, not only did Fuster not commit but never even happened.
Thirty-three years ago, Fuster, along with his young wife, Ileana, was convicted of sexually abusing children at his suburban Florida home, where Ileana provided day care. He is the last person charged in the mass sex-abuse-in-day-care scares that made headlines from the 1980s to the mid ’90s to remain in prison. Part of a broader obsession with child sex abuse — therapist-induced repressed “memories” of incest destroyed thousands of families — the day-care cases were a modern version of the Salem witch trials of the 1690s, down to allegations of Satanic rituals by caregivers. They stand as a warning to those who look condescendingly at our Salem ancestors, incredulous that judges and public alike would believe girls writhing and shrieking that they were at that moment being pinched by the accused sitting far away in the dock. As a young attorney, Robert Rosenthal cut his teeth on the day-care cases, winning reversals on appeal in a number of them.
“These cases made normal people abandon their disbelief,” he says. “In another situation, would they believe this crazy stuff about pentagrams and Satan? But here they believe it.” These cases attest to the inability of our justice system to deal with mass hysteria and, worse, to rectify injustice in a timely fashion even after the hysteria has passed. Traditional rules of evidence and procedure were thrown out the window, with nary a protest from the American Bar Association, the American Civil Liberties Union, or other watchdog organizations. And while all the others falsely accused in the highly publicized day-care scares are at last free, in many cases they languished behind bars for decades.
Only in 2013, after they had served 21 years in prison, were Fran and Dan Keller released. The couple, who ran a day-care center out of their Texas home, had each been sentenced to 48 years in prison, on absurd testimony that included accusations that they had drowned and dismembered babies in front of other children, transported the children to Mexico to be sexually abused by soldiers in the Mexican army, dressed as pumpkins and shot children in the arms and legs, and so on.
Too many judges have been indifferent to the claims of justice. Take the decisions of the Supreme Judicial Court of Massachusetts in the Amirault day-care case. After an indignant judge, on appeal, threw out the conviction of Violet and Cheryl Amirault, saying they should not spend “another minute” in prison — they had already spent eight years behind bars — the court reinstated their sentence, invoking “the community’s interest in finality.” Only one member of the seven-judge court dissented, saying, “Our desire for finality should not eclipse our concern that in our courts justice not miscarry.” George Orwell said that some ideas were so absurd that only an intellectual could believe them. It might be said only a judge could believe that the public would put the value of “finality” above the search for justice. The Supreme Judicial Court of Massachusetts had been established by the British Crown in 1692, the year the Salem witch trials began (they ended after eight months), to prevent miscarriages of justice — now it was committing what it was established to avoid.
I wrote about some of these cases, including that of Frank Fuster, in National Review in 1997, when the frenzy was beginning to wane, thanks in part to a handful of clear-eyed journalists who kept their heads when all around were losing theirs. First to speak out was Debbie Nathan, co-author of Satan’s Silence. Dorothy Rabinowitz reported in depth on some of the falsely accused, beginning with Kelly Michaels, a young aspiring actress sentenced to 47 years after being convicted of sexually molesting virtually all the three- to five-year-old children at Wee Care Day Nursery in Maplewood, N.J., even though none of her co-workers said they witnessed any of the crimes she had been charged with. On PBS’s Frontline, in a series beginning in 1991, Ofra Bikel provided devastating coverage of the Little Rascals Day Care case in Edenton, N.C. At the time, I described the cruel anomaly: “While appeals courts were throwing out the convictions of some of those unjustly imprisoned, they were arbitrarily denying so much as a hearing to others. Indeed, many were sinking ever deeper into the legal quagmire of their multiple life sentences.”
That Frank Fuster would sink deepest of all was by no means obvious in 1997, given that all the cases were marked by the same egregious flaws. The charges were the work of therapists who over many months badgered, bribed, coaxed, bullied, and coerced reluctant preschoolers — they initially denied anything happened — into saying what prosecutors wanted to hear. In the Fuster case, the interviewers were Joseph and Laurie Braga, a husband-and-wife team of self-styled experts on child abuse. He had a doctorate in education; she, in child development. As Rosenthal describes it, “the Braga interview method was a systematic application of suggestion, coercion, and manipulation, beginning with ingratiating banter, escalating through intimations of sexual activity that the Bragas thought had happened, and culminating, in the case at hand, with the outright insistence that Frank Fuster and his wife, Ileana, were child abusers.” Noel Fuster, Frank’s young son who provided evidence against him, later said of the interviewing tactics the Bragas employed on him that they “were playing games with a six-year-old’s head.”
Fuster was convicted in what became known as the “Country Walk case,” after the housing development in which he and his family lived. It was the first of three high-profile cases in which Janet Reno, then the state attorney for Dade County (now Miami-Dade), used the same prosecution methods. Given that the accused in the other two cases were freed, one at trial, one on appeal, it seemed plausible that Fuster’s conviction would also be overturned.
A 1998 Frontline exposé of one of the Reno cases, that of Grant Snowden, then newly released after eleven years in prison, would call it “the Miami method”: Child witnesses, coached by the same therapists so their tales would not conflict or go astray (in the Little Rascals case in North Carolina, children testified that they had been taken aboard a space ship and abused in outer space) were backed up by “medical evidence” and, ideally, a “confession.” The third and last Reno case was that of Bobby Fijnje, the 13-year-old son of a retired Dutch diplomat. Bobby was accused of molesting children he babysat at Old Cutler Presbyterian Church, just south of Miami. The children’s parents even hired a “Satanism expert” to confirm the outlandish stories elicited from their toddlers — for example, that Bobby had led his charges to a cemetery where they unearthed dead bodies. With Fuster and Snowden both in prison, Reno was so certain of another legal victory that, after the jury came in, she requested that the verdict not be read until she arrived, so she could be on hand to take credit before the press. Not knowing why there was a delay, Bobby waited almost two hours, his heart hammering in his chest. The jury found him not guilty on all counts.
If Frank Fuster provided the “template,” as Rosenthal says, “for other prosecutions around the country,” why is he the only one still in prison? There are probably several reasons: Fuster’s personal history, a confession by his wife and alleged fellow perpetrator, media response to the case, and sheer bad luck. Unlike, for example, Bobby Fijnje, a likable teenager, or Grant Snowden, who had been chosen South Miami’s police officer of the year the year before his arrest, Fuster did not have a clean background.
In 1969, at the age of 20, Fuster killed a man in a road-rage incident in New York City, for which he served four years of a ten-year sentence. At the time of his arrest in the Country Walk case in 1984, he was on probation for fondling a nine-year-old girl through her clothing. The justice of the jury verdict on this charge is generally assumed, for example in a scholarly article in the Journal of Interpersonal Violence (March 2017). The four authors, who include Debbie Nathan, write that in this case they “have no doubt he was rightfully convicted.” They then focus on demolishing the astonishing claim of political scientist Ross E. Cheit that most of the defendants in the day-care cases were probably guilty after all.
Yet in the case of the nine-year-old girl, Fuster has always denied his guilt with as much fervor as he denied the subsequent day-care charges. In his telling, he was with the child in his car only briefly as he drove her home after a party at the family’s request. He says he held her with no sexual intent when she asked to hold the wheel and examine the instrument panel. He says that he turned down a prosecution offer of six months’ probation in exchange for a guilty plea, passed a polygraph test, and was evaluated, at the direction of the court, by a forensic psychologist who did not find him to have a “typical child molester personality.” Confident that the evidence to convict him was insufficient, Fuster’s attorney was adamant that he not take the stand, which Fuster believes was a bad decision, confirming his guilt in the jurors’ minds. The guilty verdict notwithstanding, the judge did not take the incident too seriously, sentencing Fuster to two years’ probation (albeit with a 15-year sentence looming should he violate its terms).
That verdict turned out to be crucial to Fuster’s fate. Without it, there probably would have been no Country Walk case 20 months later. Newly married, Fuster’s young wife, Ileana, provided day care to supplement Frank’s income from his decorating business. Rumors about Ileana began when a three-year-old told his mother to kiss his body because Ileana kissed all the babies’ bodies. (This, it turned out, is a common expression of affection in Ileana’s native Honduras.) Subsequently, one of the parents, picking up her 18-month-old toddler, who had been awakened from sleep and was groggy, assumed that he had been drugged. Parental panic solidified when it was discovered that Fuster was a convicted child molester. Frank and, two weeks later, Ileana were arrested. Reno had the Bragas interrogate the children, and after a series of interviews the children reported a litany of “ritual abuse”: They reported being sodomized and drugged; they claimed Frank wore monster masks and slaughtered animals, all while praying, with Ileana, to Satan. Reno’s office brought in an expert on Caribbean cult religions to explain the alleged bizarre rituals.
What makes Robert Rosenthal call the Country Walk case “the worst I have ever seen” is the brutality with which Reno and her team treated Ileana in their effort to wring a confession from her. In a sworn deposition, Stephen Dinerstein, the experienced investigator employed by the Fusters’ attorneys, described the conditions under which she was imprisoned. She had been a bright, attractive 17-year-old girl with shiny black hair; now, only months later, she “appeared as if she was 50 years old. . . . She has sores and infections on her skin and states that no sanitary conditions exist or are provided, that the shower, when received, is a hosing down in the cell. That she is in a cell with nothing in it but a light in the ceiling and that she is often kept nude and in view of everybody and anybody.” As a result of this mistreatment, said Dinerstein, she had become “a constantly crying, shaking, tormented person.” After eleven months, Dinerstein reported, “Mrs. Fuster’s condition had deteriorated so badly she could hardly move and was very slow to respond to any questions.” Given the circumstances, Ileana appears to have been Reno’s most abused victim.
True, the Fijnje case was marked by vicious prosecutorial abuse. Trying to browbeat him into taking a guilty plea, Reno insisted on trying Bobby as an adult, although he was then only two months past his 14th birthday. This meant that, if found guilty, he could be given seven life sentences. The Reno team warned the family that their son would be sexually assaulted in prison in a matter of days, get AIDS, and die. Terrified, his mother pleaded with him to take the generous plea bargain offered if he confessed — after a few years in a psychiatric facility, he would be released, with a clean record. But at least Fijnje had a loving and supportive family and a first-class legal defense, thanks to the $1 million invested in the case through the insurance carried by the church where the abuse was alleged to have occurred.
Ileana, in contrast, had no support system. Far from putting up a spirited defense, her court-appointed lawyer was determined to make her confess — and to say that Frank had made her do it. Despite being in solitary confinement for almost the entire period, Ileana held out for eleven months, insisting she could not confess to things that had never happened. She cracked only after her lawyer brought in an outfit called Behavior Changers to help her “recover” her supposedly repressed memories. Almost 20 years later, in 2001, Ileana described in an interview with Frontline how they operated on her. “Since they had all the stories from the children and I didn’t remember, they will make me close my eyes and they will tell me the story. Then in my mind, I have to go step by step the way they were telling me the story. I had to imagine that that was happening. . . . If I made a mistake, then they would correct me. And we would do this over and over until I got the memory piece that supposedly was missing.” This process was repeated through 35 sessions — late at night, disturbing Ileana’s sleep cycles and compounding her confusion. Social psychologist Richard Ofshe reports that through such “visualization techniques” a person enters a trance as effectively as through traditional hypnosis.
Finally Ileana broke down. Wedged between Janet Reno, whose hand she clutched, and Michael Rappaport, one of the “Behavior Changers,” she gave her deposition. What the children had said, Ileana testified, was true and then some: Frank had hung Noel, his son by a previous marriage, by his feet in the garage and twisted him like a punching bag; hung her in the same garage; spread feces on her; forced her, at knifepoint, to perform sexual acts on the children; put snakes in her genitals and those of the children; and stuck a cross in her rectum.
In addition to the children’s testimony and the confession, the Country Walk case featured the third element of the Miami method: damning medical findings. Noel tested positive for gonorrhea of the throat. Although Frank himself tested negative (as did all the other children), the Bragas used Noel’s test result to bully the boy into finally agreeing that his father, whose guilt he had persistently denied, must have molested him, perhaps while Noel was asleep. In a deposition a few months later, Noel recanted, saying that he had been coerced by the Bragas. Noel did not testify at the trial, but the prosecution inserted the gonorrhea findings in evidence, with the claim that the test was 100 percent accurate. The Centers for Disease Control later warned against the kind of test that was used on Noel. In the case of children, the false-positives rate was 35 percent, with the test failing to distinguish between gonorrhea and ear infections or bacteria causing tooth decay. Contrary to accepted procedures, which called for freezing and storing the sample, the throat sample on which the test had been conducted in Noel’s case had been thrown out, making a retest impossible. Here the Reno team stands guilty of a sinister form of child abuse. As an adult, Noel would testify that the feeling that he had been responsible for sending his father to prison for life “almost destroyed me.”
Ileana testified against Frank at his trial. As she went through the litany of lurid charges against him, he sprang to his feet, screaming, “Liar! God will punish you.” This fierce attack on his fragile wife, portrayed by the prosecution as yet another of his victims, did him no good with the jury. He was sentenced to six life terms plus 165 years. Ileana’s confession earned her a sentence of ten years, of which she served three and a half before being deported to Honduras.
Ten years later, in 1995, Fuster almost won his freedom. Ileana, in Honduras, by now divorced from Frank, was willing to testify that her previous testimony had been coerced and false. She gave a 40-page deposition under oath to Art Cohen, a lawyer who, together with Rosenthal, was representing Fuster. Her mind, she said, was now clear. “I have no memories” of abusing the children, she said, “because nothing really happened.” Although Ileana did not dare return to the U.S. (under Florida law, withdrawing her original testimony would make her subject to prosecution for perjury), the Florida judge was willing to allow an elaborate arrangement: Cohen would fly back to Honduras with one of the prosecutors. The interrogation of Ileana would be relayed to the courtroom via a live audio hookup.
A few days before the scheduled hearing, Cohen, to his shock and dismay, received a phone call from a reporter at the Miami Herald who told him that the paper had a letter from Ileana in which she recanted her recent deposition. In the letter Ileana said she had been tricked by Cohen, did not know she was being deposed under oath, wanted her testimony to remain what it had been ten years ago, confirmed that Fuster “did horrible things to me and I know he did the same to the children,” and asked his attorneys “to leave me alone, please.” The reaction of the judge, Rosenthal reports, was to deny the motion that he and Cohen had made for a new trial, saying, “Without her testimony you have nothing worthy of my consideration.” Rosenthal says that were the judge to have granted their motion, it is highly unlikely that the prosecution would have gone ahead with a new trial. The children were now much older, and the methods by which their testimony had been elicited had at that point been thoroughly discredited.
Shattered, Cohen and Rosenthal were left to piece together what had happened. Tommy Watson, a Miami-based Baptist preacher, had flown down to Honduras to see Ileana, and it was he who had brought back her letter. Ileana owed a lot to Watson, whose church had provided her with funds, even paying for her college education. Cohen was convinced that she had not written the letter and was pressured into signing it. He turned out to be right. Six years later, in 2001, Ileana told Frontline that Watson had brought with him a statement that the district attorney’s office had given him for her to sign. “Apparently my testimony was going to reopen the case,” she said. “And they remind me that Janet Reno was the United States attorney general. . . . They also remind me of all the trouble that I could go through and I can be put back into a cell. . . . They talked about extradition.” Watson also reminded her that his church’s financial support was predicated on her helping “the children,” the putative victims of her and Frank’s abuse.
Discouraged and “out of ideas,” as Rosenthal puts it, he and Cohen passed Frank’s case to Amy Gershenfeld Donnella, who took it, also pro bono, from state to federal court. But it was downhill from there. Donnella stayed with the case for six years but says there was never an encouraging legal development.
Ironically, that so much was wrong with the case worked in favor of preserving Fuster’s conviction. In federal district court, Judge Charlene Sorrentino, in a 124-page opinion, responded individually to Donnella’s 17 claims of constitutional violations. On a number of claims, Sorrentino acknowledged potential due-process violations, but dismissed them as “harmless error,” arguing that the U.S. Supreme Court had affirmed “that where the evidence against the defendant is overwhelming,” such “error may be harmless.” On all the charges, Donnella had submitted expert testimony affirming, for example, that the test establishing Noel’s gonorrhea was faulty, that the testimony of the children was coerced by therapists, and that Ileana’s confession was the result of manipulation by the Behavior Changers. Rather than recognizing that the evidence the prosecution had put forward was a tissue of errors and falsehoods, Judge Sorrentino treated it as “cumulative” in establishing Fuster’s guilt. Donnella went on to appeal, to no avail, to the Eleventh Circuit Court of Appeals. She then filed a request for certiorari with the U.S. Supreme Court. That petition too, she says, “didn’t get anywhere.”
Fuster’s failure to obtain a major media champion probably also played a role in his fate. Dorothy Rabinowitz, who had the bully pulpit of the Wall Street Journal’s opinion page, took up the cudgels for both of Reno’s other victims, Grant Snowden and Bobby Fijnje. Rosenthal says: “What Dorothy, the Journal, and other publications have done for these cases cannot be underestimated. While the media attention does not ‘win’ the case — only legal arguments can do that — the attention is invaluable in getting the arguments heard.” Rosenthal says he won Snowden’s release in the Eleventh Circuit Court of Appeals on a due-process violation: He argued that in telling the jury that children cannot lie about abuse, a prosecution expert had usurped the jury’s function. Were the three judges hearing the case influenced by knowing they were under a national spotlight? It’s impossible to say. But one of Donnella’s arguments in Fuster’s appeal was very similar, that “the court admitted expert testimony which improperly vouched for the credibility of prosecution witnesses.” Yet in this case, where there was no journalist hovering to cast a bright light over the decision, the judge dismissed it. As noted earlier, the Massachusetts Supreme Judicial Court was unmoved by Rabinowitz’s evisceration of the case against the Amiraults. But even here, thanks to the Journal’s coverage, prominent lawyers poured such withering scorn on the court’s decision that the prosecution decided not to put Cheryl back in prison. (Her mother Violet had died by this time.)
Fuster did muster some impressive support, notably “Revisiting Country Walk,” a long, thoroughly researched article by Debbie Nathan in Issues in Child Abuse Accusations (1993). There she painstakingly outlined all the flaws in the case. But that was more than offset by the presence in Fuster’s case of an implacable media antagonist. Jan Hollingsworth lived in Country Walk and was entangled in the case from early on. Indeed, according to Debbie Nathan, she probably deserves credit for instigating it. In her book Unspeakable Acts, Hollingsworth accepted at face value the acts that Fuster was accused of. She even spun imaginative accounts of the emotions and thoughts in the minds of the tots who testified. More important, in 1989 ABC aired a docudrama with the same title, based on the book, reinforcing the national opinion that Fuster was a monster.
Even many years later, the example of the recently exonerated Kellers attests to the power of media to affect the day-care cases. In 2009, when the Kellers had been imprisoned for 17 years, Jordan Smith wrote about their case for the Austin Chronicle. Her article induced a local attorney to represent the Kellers and led Michael Mouw, the doctor who had provided the only physical evidence against them, to come forward to repudiate his earlier testimony. Mouw said that years after the trial, he learned that what he had identified as tears and lacerations to the girl’s vagina were normal variations. That constituted new evidence, and in 2013 a trial judge ordered the Kellers released. That rarest of breed in these cases, a decent district attorney — Margaret Moore, of Travis County, Texas — moved to dismiss the charges, saying that she believed the Kellers to be innocent. Last year, they were finally declared factually innocent, paving the way for the Kellers to obtain financial compensation from the state for their years of wrongful imprisonment.
As for Fuster’s bad luck: In 1996, in the wake of the Oklahoma City bombings, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which Donnella believes “was probably the single most critical factor in Frank’s conviction having been upheld in federal court.” She adds that among the “many terrible provisions” of the AEDPA is that it “requires a level of deference to state court fact-findings and legal interpretations that had never existed before.” Although convicted two years after Fuster, Snowden went to federal court earlier, before the act took effect. According to Donnella, “the Eleventh Circuit would have had no factual basis for distinguishing the due process violations in Frank’s case from those in Grant Snowden’s case, had it not been for this change in law. The due process violations in Frank’s case were, in fact, more egregious.”
It is a miracle that Fuster survived his first years in prison. Child abusers are known to be endangered by fellow inmates. In Fuster’s case, the danger was exacerbated by ABC’s occasional rebroadcasts of Unspeakable Acts. He suffered serious attack five times and almost died when, shortly after a rebroadcast, an inmate stabbed him in the neck with a pen whose point went so close to the artery it could not be removed. In July of this year, while being transferred from one prison to another, Fuster was again beaten by a group of inmates, after several officers openly discussed his case in the hearing of others on the bus, saying he had “raped 70 children.”
Fuster has achieved some peace through his evolving Christian faith. After his 1984 conviction, he reports, he was consumed by rage. In her book No Crueler Tyrannies (2003), Rabinowitz published Violet Amirault’s prison notes from 1989, revealing the terrible effects such anger can have. “I am eaten away with rage and hatred. . . . I am a demon of the worst kind. I have no space for anything or interest in this world. I actually want it to self-destruct. I cannot utter any word without this poison coming through.” The justice system in which she had believed had not only wrecked her life but injured her soul.
For the past 15 years, Fuster has been without legal representation. His hopes were raised again in 2012 when the Innocence Project of Florida, which helps innocent prisoners obtain their freedom, invited him to submit his legal papers (by now seven boxes of them) for review. But in January of this year, the Innocence Project sent him a letter saying, with no further explanation, “We have reviewed your case and have determined that our office cannot accept it.” In April, hoping to learn more, I phoned Seth Miller, the executive director of the organization, but he refused to speak with me. His receptionist told me that Fuster was not a client and that Miller had nothing to say.
One of the most demoralizing aspects of these day-care cases is that they are morality tales in reverse: The perpetrators ride high on the backs of their victims. Janet Reno went on to become attorney general. In a hideous distortion of the truth, Bill Clinton in nominating Reno hailed her record of protecting children. Scott Harshbarger, who prosecuted the Amiraults, rode that case to become attorney general of Massachusetts. The accusing families cleaned up. In the Fuster case, they collected over $5 million in out-of-court settlements from the deep-pocketed Arvida Corporation (owned by Disney), the developer of Country Walk. (To his credit, Noel Fuster, when his adoptive father brought suit on his behalf, denied any abuse and forfeited a huge payday.) The accusers of the Amiraults collected over $20 million from insurers.
Rosenthal believes that, given the improbability that new evidence will emerge, Fuster may have come to the end of the legal road. Donnella is less pessimistic, believing that, although difficult, it is not impossible to bring the case back into state court. She points out that “every state post-conviction statute, and all the cases interpreting them, have provisions that enable an innocent person — and a wrongly convicted person — to overcome procedural hurdles including statutes of limitations.”
Still, given the obstacles to court action, a pardon would seem to be Fuster’s chief hope for timely relief. But when it comes to pardons, our modern witch trials compare unfavorably with Salem. Few people realize how quickly the witch panic flamed out. It was all over in 16 months, when William Phips, the governor of Massachusetts Bay Colony, ordered the release of all those who had been accused of witchcraft and were still in jail. In our own era, governors offer profiles in cowardice. Not a single governor has pardoned any of the wrongly convicted in the day-care panic. In 2001, Gerald Amirault came close to obtaining a pardon. Tried separately, he remained in prison after his mother and sister were freed. Although the Massachusetts parole board was notoriously reluctant to pardon — it had recommended only seven in the previous nine years — it voted unanimously to commute his sentence. But then acting governor Jane Swift, in election mode, refused to release him. (She lost anyway.)
Four years after the last “witches” were freed, Massachusetts Bay Colony proclaimed a day of contrition for the public hysteria and judicial misconduct that had led to “great hardship brought upon innocent people.” The modern victims of public hysteria and judicial misconduct have gone down the memory hole. It is safe to say that more people know of the Salem witch trials than know of the day-care cases from only a few decades ago.
“Justice was not done in this case,” Robert Rosenthal says of Fuster. “This was the sacking of justice” — and, one must add, an episode of brainless prosecutorial zeal. It remains to be seen whether Florida’s governor (with the required support of two of his cabinet members) will exercise his executive power to free Frank Fuster and remedy, finally, such a longstanding miscarriage of justice.
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