Two decades later, the
convicted child molester's legal battle continues
Article of the week from Massachusetts Lawyers Weekly
13th was a momentous day for all of those involved in
Commonwealth v. Baran.
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.
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
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.
also point to other cases of child abuse hysteria that cropped up in
the early 1980s, many of which have since been discredited or
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
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.
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.
shortage of finger-pointing going around, it's hard to know whom to
believe. But this much appears certain: Commonwealth v. Baran is far
The blame game
says Leonard B. Conway of Westfield never should have been his
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.
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
found that had the defense hired witnesses, it might have been
better able to counter the experts who testified for the
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
also ruled that Conway failed to protect Baran's constitutional
right to a public trial by allowing closed testimony by the
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.
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."
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."
"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 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.
own defense, Conway maintains that it's easy to "Monday morning
quarterback" and that Judge Simons was "very pro-prosecution."
adds: "Everyone seems to forget that I got four counts thrown out on
a directed verdict motion."
agrees that the criticism leveled against Conway
the lawyer "experienced and mature," the original trial judge
recalls that Conway "conducted himself well during the trial."
meanwhile, also assigns some of the blame to Cain, Hibbard, Myers &
Cook, the Pittsfield firm that handled Baran's appeal.
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
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.
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'
Baran's appellate case ran its course, he found himself with a
lifetime prison sentence and little hope.
is, until civil insurance defense lawyer Jocelyn M. Sedney entered
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
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.
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."
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.
sense was that [Baran] needed a good trial defense attorney," she
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
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.
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.
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
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
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.
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.
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."
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
Capeless has since asked a judge to impose a gag order in the case.
Baran is retried, experts say it won't be easy.
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.
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."
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.
adds that he thinks any prosecutor would drop an appeal if he or she
thought the conviction truly had been a wrongful one.
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."
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.
says, he's not worried about the prospect of another trial.
not running anywhere. I've been trying to prove this for 21 years,"
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