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The Bernard Baran Saga

Two decades later, the convicted child molester's legal battle continues

By Noah Schaffer

Article of the week from Massachusetts Lawyers Weekly

June 13th was a momentous day for all of those involved in Commonwealth v. Baran.

It was on that particular Tuesday that a Worcester Superior Court judge granted Bernard F. Baran Jr. a new trial. A couple of weeks later, the convicted child molester walked free on bail after spending 21 years behind bars.

More than two decades after Baran was first tried, the case still evokes strong emotions in those who were a part of it — in members of the defense team who fought for years on behalf of a man they believed was a victim of homophobia and child abuse hysteria; in the district attorney who has vowed to retry the case; in the alleged victims, some of whom have allegedly recanted their stories, and at least one who still stands by the allegations; and, of course, in Bernard Baran himself.

Meanwhile, the onetime-Pittsfield day care center employee has become somewhat of a cause celebre. His supporters claim that his conviction on three counts of rape of a child and five counts of indecent assault and battery was mangled by his original trial lawyer, who allegedly failed to receive critical evidence from prosecutors and did not view the unedited videotapes of interviews with the children — which included denials that any abuse had actually taken place.

They also point to other cases of child abuse hysteria that cropped up in the early 1980s, many of which have since been discredited or dropped.

Judge Francis R. Fecteau's 79-page decision in June called for a new trial for Baran because "trial counsel provided him ineffective assistance in a number of ways, including failing (1) to obtain and utilize certain videotapes, (2) to retain or consult with an expert, (3) to challenge vouching/opinion testimony regarding the truth-telling of the alleged child victims and (4) to attempt to exclude evidence of gonorrhea."

Berkshire County District Attorney David F. Capeless is appealing Fecteau's new-trial order, and the now-retired judge from the original trial, William W. Simons, says he believes the defendant received a fair proceeding and a reasonable verdict.

Baran's original attorney, meanwhile, says he's been made a scapegoat after he took on the complicated case for a paltry sum. He is also adamant that 42-year-old Baran is innocent.

With no shortage of finger-pointing going around, it's hard to know whom to believe. But this much appears certain: Commonwealth v. Baran is far from over.

The blame game

Baran says Leonard B. Conway of Westfield never should have been his lawyer.

Baran tells Lawyers Weekly that his mother had been impressed with the court-appointed attorney, Leonard H. Cohen, who had represented Baran at his first arraignment. She wanted to hire Cohen privately for the trial, but accidentally called Conway instead.

"It's been the nightmare of my life," says Conway of the drubbing he has received both in the press and now from Judge Fecteau. He adds that he was hired not by accident, but because he had represented a relative of Baran in a rape case that resulted in a not guilty verdict.

Fecteau found that had the defense hired witnesses, it might have been better able to counter the experts who testified for the prosecution.

And regarding the lack of investigation into the anti-gay attitudes expressed by the mother of one of the accusers, Fecteau wrote that "[t]here is good reason to believe that competent, aggressive cross-examination of her would have yielded her bias against the defendant."

Fecteau also ruled that Conway failed to protect Baran's constitutional right to a public trial by allowing closed testimony by the children.

But Conway says he was only paid $500 to try the case, which did not allow him to properly investigate the matter or hire expert witnesses. In fact, Conway says he was amazed when Baran turned down the plea bargain he was offered.

"They offered six years. I told him take it, because each count came with a life sentence. He said six years is too long for something you haven't done. That convinced me he was innocent."

But Baran's current lead defense counsel, John G. Swomley of Boston, says lack of funds was not the reason Baran's defense failed. Calling Conway "an idiot and a drunk," Swomley says he "was a wholly ill-equipped lawyer with no knowledge of the subject matter and no real experience in criminal law."

The "drunk" label arises out of a claim made by Baran's mother that she saw Conway drinking at a local bowling alley during the trial. Conway denies that he was drinking and explains that the bowling alley was owned by family members whose home he stayed at during the trial.

"This trial was the talk of the town. I'd have to be not only incompetent but a complete moron to drink anything in public on an important night of the trial," he argues.

In his own defense, Conway maintains that it's easy to "Monday morning quarterback" and that Judge Simons was "very pro-prosecution."

He adds: "Everyone seems to forget that I got four counts thrown out on a directed verdict motion."

Simons agrees that the criticism leveled against Conway is unfair.

Calling the lawyer "experienced and mature," the original trial judge recalls that Conway "conducted himself well during the trial."

Swomley, meanwhile, also assigns some of the blame to Cain, Hibbard, Myers & Cook, the Pittsfield firm that handled Baran's appeal.

"[The firm] had briefly, prior to the criminal trial, represented one of the victims, and they were gearing up to sue the day care center during the criminal trial. … [Then] Baran approached them and they said they'd represent him. That's ethically not acceptable," claims Swomley.

In addition, says Swomley, the firm destroyed Baran's file while he was still in prison, with the result that Swomley had access to the official transcript only when he took on the case.

(Cain Hibbard partner C. Jeffrey Cook could not be reached for this story. Former associate David O. Burbank declined to comment, citing the ongoing nature of the case, but he did provide Lawyers Weekly with a copy of the 77-page brief he had filed for Baran. The brief raised issues that included whether hearsay was admitted in court, whether the young accusers were competent to testify, and whether leading questions were asked. Burbank testified in a 2004 hearing that he had represented one of the accusers, and later on helped prepare Baran's appeal, according to an account in the Berkshire Eagle.)

'Couldn't have happened'

When Baran's appellate case ran its course, he found himself with a lifetime prison sentence and little hope.

That is, until civil insurance defense lawyer Jocelyn M. Sedney entered the scene.

"She was representing the insurer for the day care center Baran worked at," recounts Swomley. "She conducted depositions and did discovery — the things that Conway should have done. She realized Baran was innocent."

Sedney, a Boston lawyer, says that "it became very evident to us that something really had gone wrong during that trial." She cites evidence that a child had tested positive for gonorrhea — even though Baran never tested positive for the disease, something noted by Judge Fecteau as well.

"It appeared that [Baran's] own attorney had not done the job necessary," says Sedney. "We went to the day care center, and it was clear what the children were saying ... couldn't have happened."

Sedney found that the bathroom at the West Side Early Childhood Development Center, where the children claimed Baran assaulted them, had large windows just two feet from the floor, with no shades. From the playground, one could see directly into the bathroom, making it unlikely that an assault could go unnoticed.

"My sense was that [Baran] needed a good trial defense attorney," she says.

A trail of lawyers followed, and eventually a Boston activist named Bob Chatelle became interested in the case. When he and Baran made contact, Chatelle set up an organization called the National Center for Reason and Justice, which pays for the legal expenses of those who the organization deems have been wrongfully convicted for sex crimes.

In 1999, Chatelle enlisted the help of Swomley and Boston lawyer Harvey A. Silverglate. While Silverglate has worked on the case pro bono, Swomley, who has spent thousands of hours on Baran's defense, has not. But, he says, the funds raised have largely gone to paying for experts, and that he has "forgiven" the Baran legal fund substantial sums of money.

Videotapes

The children who accused Baran were videotaped, and a heavily edited reel of their statements was shown to the grand jury that indicted the day care worker.

Fecteau said when viewed in full, the tapes of the Baran witnesses "contain statements in which the children deny that Mr. Baran had done anything to them and statements where they accuse other persons of abuse."

But the tapes were never given to Baran's defense counsel before the trial. That, Fecteau found, was a major problem, because a jury seeing the tapes in their entirety might have come away with a very different opinion of both the accusations and the people who had interviewed the children.

According to Swomley, getting access to the unedited videotapes — evidence that was held by the District Attorney's Office — took countless motions, a Freedom of Information Act request and, finally, the death of a DA.

Swomley obtained a court order for the production of the tapes, but the district attorney at the time, Gerard D. Downing, said they could not be located.

After Downing died of a heart attack while shoveling snow, his successor, Capeless, found them and turned them in to comply with the judge's order, according to Swomley.

Otherwise, Swomley is not impressed with the DA so far: "He's publicly opposed everything we've done, but in point of fact he's done very little background work."

But Swomley's co-counsel, Silverglate, applauds the district attorney's actions. "Capeless is an honest man," Silverglate says. "He turned those tapes over knowing [they would] wreck his case."

Although he has told other media outlets that he will try Baran again, when contacted for this story Capeless told Lawyers Weekly that "way too much has been said publicly about this case — particularly by Mr. Baran's attorneys. I think the professional thing is for both sides to stop talking and deal with this case on its merits."

Capeless has since asked a judge to impose a gag order in the case.

New trial?

If Baran is retried, experts say it won't be easy.

"These cases are very hard to retry so many years later," comments Boston lawyer Laurence E. Hardoon, the lead prosecutor in the high-profile Amirault/Fells Acres day care center cases in the 1980s and '90s.

"In terms of trying to present evidence, of having people remember what happened when they were young children, it's almost impossible," Hardoon continues. "So the battle is fought in the appellate court. I think in [Amirault] the trial court judges got swayed into being an advocate, and that's completely wrong — it's not the role of a judge. But the appellate [court] is a panel of judges. They'll look at it from a more neutral legal perspective."

Hardoon says that both the Baran and Amirault cases saw a substantial amount of PR on the part of the defense, in contrast to the more traditionally tight-lipped approach favored by prosecutors.

"There's a lot of spinning, but the prosecutor has to just respond to the integrity of the evidence," he asserts.

Hardoon adds that he thinks any prosecutor would drop an appeal if he or she thought the conviction truly had been a wrongful one.

"I think here the defense is trying to exploit circumstances, as they did in [Amirault], that the prosecutor knows had no bearing on the integrity of the case. And if that's going on, I'd expect the prosecution to stand by the conviction."

If there is another trial, Swomley says he will subpoena Daniel A. Ford, the original prosecutor. Ford is now a Superior Court judge who usually sits in western Massachusetts, which is why the recent hearing was held before Fecteau in Worcester.

Meanwhile, even though he has to wear a GPS monitor, Baran is just happy to be out of prison, where he says he suffered from constant physical and sexual abuse.

And, he says, he's not worried about the prospect of another trial.

"I'm not running anywhere. I've been trying to prove this for 21 years," he notes.


Innocents in Prison Reform Organizations, News & Views



 

                         Bernard Baran

 

The unfair trial received by Baran, and the possibility of his innocence, was reported by the Boston Phoenix in June 2004, in collaboration with the Boston University Investigative Journalism Project (Click for “The Trials of Bernard Baran,” News and Features, June 18, 2004).. . . Twenty years ago, a young gay man was convicted of multiple counts of molestation. There is good reason to believe he is innocent.

 

Bernard Baran at the Time of His Arrest

 

Free Bernard Baran Website

 



BREAKING THE RULES

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It is better that ten guilty escape than one innocent suffer.
-- Sir William Blackstone, Commentaries on the Laws of England --

The punishment of a criminal is an example to the rabble; but every decent man is concerned if an innocent person is condemned.

-- Jean de la Bruyere quotes (French satiric moralist, 1645-1696) --

 

 

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Updated 11/19/2009