E-Mail This Article to a Friend Dept. of injustice Troubling questions about a convicted child molester’s guilt, and John Ashcroft’s continued depredations, show that our justice system is seriously out of whack

TWO VERY DIFFERENT tales of prosecutorial excess demonstrate what legal observers have known for a long time: that the criminal-justice system is seriously out of balance.

There is a legitimate need to protect society from criminals through a combination of prison sentences appropriate to the offense and rehabilitation to prepare inmates for their post-prison lives. But the impulse these days, sadly, is toward retribution and irrationally harsh punishment; indeed, rehabilitation has been virtually eliminated from the system. Moreover, this vindictive approach to crime has taken precedence over a more vital imperative: protections aimed at preventing people from being convicted of crimes they didn’t commit, often because of misconduct on the part of police or prosecutors.

Unfortunately, the case of Bernard Baran, serving a life sentence for child molestation since 1985 despite a plethora of evidence casting doubt on his conviction, and the continued depredations of Attorney General John Ashcroft, who’s seeking to apply the death penalty to ordinary street crime, show that true justice is more elusive than ever.

BARAN’S STORY was told in a lengthy Phoenix article last week ("The Trials of Bernard Baran," News and Features, June 18) and in a follow-up this week ("Undoing Injustice," page 17), as reported by the Boston University Investigative Journalism Project. Openly gay, and just 19, Baran was arrested at the Pittsfield day-care center where he worked after a three-year-old boy allegedly came home with blood on his penis and told his father, "Bernie did it."

Despite questions about his account — in fact, he never testified, and the Phoenix found he may have told others years later that it never happened — the disclosure prompted a widespread investigation that resulted in five young children testifying against Baran. The case was marred by problems similar to those reported in other 1980s-era day-care prosecutions, including overly aggressive, suggestive questioning of children and the misuse of anatomically correct dolls. Baran was additionally victimized by the homophobia that was pervasive two decades ago.

Perhaps most troubling was the sorry state of the physical evidence against Baran. For instance, the three-year-old boy was found to have gonorrhea in his mouth — near-certain evidence of sexual abuse. But Baran tested negative for gonorrhea, and the Phoenix learned that the Department of Social Services, which suspected that a boyfriend of the boy’s mother had abused her son, was less than diligent in passing that information along to the District Attorney’s Office.

Baran insists on his innocence; in fact, he rejected a plea bargain that would have landed him in prison for just six years rather than admit to the charges against him. But the road is difficult for inmates who continue to protest their innocence. Baran’s conviction was upheld on appeal, and mere assertions of innocence are insufficient to get a convicted criminal back into court.

Baran’s lawyers are now seeking a new trial, alleging prosecutorial misconduct, the unreliability of the toddler-age witnesses’ testimony, and incompetence on the part of Baran’s original defense counsel. Tragically, none of this may be enough. Rather than depending on the vagaries of the current system, including the courts, it is long past time to create a statewide innocence commission charged with investigating the convictions of people who may actually be innocent.

As the Phoenix has previously argued (see "Lying Liars," Editorial, June 4), such a commission would have the power to subpoena witnesses, determine the causes of wrongful convictions, and punish errant police and prosecutors. After all these years, that might be Bernard Baran’s best hope for freedom.

JOHN ASHCROFT may be, as New York Times columnist Paul Krugman contends (and we concur), "the worst attorney general ever." Certainly Ashcroft’s latest initiative — seeking to execute ordinary street criminals, even in states that don’t have the death penalty, like Massachusetts — lends credence to that argument.

Right-wing, power-hungry, and zealously self-righteous, Ashcroft, the Phoenix’s David S. Bernstein reports, is tying up the federal courts with the types of cases that have long been handled at the state and local level (see "Fedz in the ’Hood," page 20). Moreover, by demanding that federal prosecutors bring death-penalty cases in non-death-penalty states, Ashcroft — like others in the Bush administration — is acting against the longstanding Republican philosophy that the states should run their own affairs.

Here in Massachusetts, we have had several emotional debates over the death penalty in recent years. Capital punishment was nearly restored in the 1990s after the horrific murder of a 10-year-old Cambridge boy, Jeffrey Curley. It lost. Now, though, US Attorney Michael Sullivan — inspired by the mean-spirited fanaticism of his boss, Ashcroft — says he intends to retry one of Curley’s convicted killers, Charles Jaynes, on federal charges for the sole purpose of seeking his execution.

Legislators have been noticeably cool to Governor Mitt Romney’s proposal for a supposedly error-free death-penalty law. But though capital punishment thus far has been kept out of the state courts, Ashcroft is attempting to move even street shootings into federal court so that he can make the ultimate example out of twentysomethings caught up in crime.

Never mind that the death penalty is cruel and unfairly applied — this is a waste of federal resources. Selective federal prosecution, without capital punishment, helped bring Boston’s gang problem under control in the early 1990s. But as former US attorney Donald Stern, now a lawyer in private practice, puts it, "Federal resources are best used as a scalpel, rather than a sledgehammer. The art is in picking the right cases and finding the right leverage."

Elsewhere in these pages, noted civil-liberties lawyer Harvey A. Silverglate (a member of Bernard Baran’s legal team) writes that Ashcroft’s prosecution of terrorism cases amounts to a "Ponzi scheme" of shaky evidence piled on earlier cases that were built with equally shaky evidence (see "Freedom Watch," page 18).

Ashcroft is clearly out of control. The most effective way to bring his abusive behavior to an end would be to vote his boss, George W. Bush, out of office this November. Failing that, his reign of injustice is likely to continue unabated — and innocent people may die. Who, after all, will stop him?

What do you think? Send an e-mail to letters[a]phx.com