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Undoing injustice
A peek at some of the new evidence suggesting Bernard Baran may be innocent of the crimes that put him in jail for 19 years and counting
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Picture of injustice: Capturing the Friedmans is a riveting movie about a family destroyed by allegations of child sexual abuse. Too bad it fails as a search for truth. By Harvey A. Silverglate.

AS REPORTED IN last weekís Boston Phoenix, thereís good reason to believe that Bernard F. Baran Jr., an openly gay man convicted in January 1985 of raping and abusing five children at the now-defunct Early Childhood Development Center, was falsely accused. (See "The Trials of Bernard Baran," News and Features, June 18.) Baranís guilty verdict was the first handed down in a wave of day-care-abuse cases that spread across the country during the 1980s. Like a good many others convicted in those cases, Baran, who at the time of his arrest was a 19-year-old teacherís aide at the Pittsfield facility, has insisted from the start that he is innocent.

An investigation by a team of Boston University journalism graduate students reported considerable new evidence that raised doubt about Baranís guilt. The investigation located witnessesí accounts claiming that two of his alleged victims contradicted their testimony in statements made after the trial. Psychologists and child-abuse experts have since repudiated the techniques investigators used at the time to question the children involved. And the team uncovered a memo written by a Department of Social Services (DSS) agent suggesting that someone else had abused the three-year-old boy whose accusation first prompted Baranís ordeal.

Now, a Boston-based defense team representing Baran has petitioned for a new trial. Their motion, filed on June 16, jump-started what will likely be Baranís final bid for freedom. Led by attorneys John G. Swomley and Harvey A. Silverglate, with the assistance of Pamela Nicholson, Baranís lawyers have discovered more evidence of potentially unreliable testimony by Baranís accusers, alleged prosecutorial misconduct, and an ineptly presented defense ó all of which speak to Baranís innocence.

THE NEW DEFENSE teamís nearly 300-page motion for retrial is built around a litany of evidence that aims to chip away at the grounds for Baranís conviction. While it elaborates on information used in the first trial, the motion focuses heavily on police reports, medical records, personal accounts, and other similar documents that have come to light since 1985. One document reveals that a five-year-old girl who accused Baran told Pittsfield detective Peter McGuire during the initial investigation that she had been abused by her motherís boyfriend. According to the motion, McGuire wrote in a letter to the West Springfield Police Department that "[a]fter making a disclosure to her mother about being sexual [sic] abused at the daycare center in Pittsfield," the girl "made another disclosure. She told her mother that [her motherís boyfriend] did the same thing to her [as Baran]. Mother says she was visiting a boyfriend ... in a motel in West Springfield, and this is the person her daughter is talking about." The scenario described in McGuireís letter is nearly identical to potentially exculpatory evidence contained in the DSS report reported on last week (which never made it to the original trial) that the three-year-old boy who was Baranís first accuser claimed he was abused by his motherís boyfriend. McGuire did not return repeated phone messages requesting comment.

The motion also states that Baranís trial attorney, Leonard Conway, knew about the girlís allegation against her motherís boyfriend, but chose not to pursue it. Conwayís inexperience ó he did not normally practice criminal law ó may account for his disregard of evidence apparently favorable to his client. After all, Baranís mother, who retained him, mistook his name for that of Leonard Cohen, the court-appointed attorney who had handled Baranís arraignment.

In addition, the lawyersí new-trial motion alludes to a darkening mood of homophobia at the day-care center, which had begun to shadow the place a month before anyone accused Baran of pedophilia. Apparently, the family of the three-year-old boy who would later accuse Baran made a phone call complaining about a homosexual man working with children, sparking a discussion among the centerís teachers and board members. According to the motion, "Minutes of the September 12, 1984 meeting of the Executive Committee of the [Early Childhood Development Center] ... stated cryptically: ĎJane [Trumpy, interim director] will handle the Bernie issue (whether or not he will be fired).í" Swomley says the minutes are included in a group of sealed documents presented to the court with the motion.

Also present at the meeting, according to the motion, was the boardís secretary, whose daughter would become Baranís second accuser a few weeks later. What she heard at that meeting may have greased the wheels for her daughterís claims against Baran, his attorneys argue. Original-trial documents stated that day-care coordinator Carol Bixby phoned the secretary soon after the first boyís family initially accused Baran of molesting him. The secretary would later testify at the trial that she questioned her daughter immediately after receiving Bixbyís call, and that her queries focused exclusively on Baran. Never raised at the trial, however, was the motherís own alleged history with child abuse, which may have heightened her sensitivity to the accusations. "[The mother], herself, was almost raped by her uncle as a child," states the motion, "but, when she told her mother, her mother did not believe her.... [The past incident] was so significant that she related the story to the two detectives and the social worker who came to her home to question [her daughter] on October 5th." The girlís mother could not be located, and her father politely refused comment for this story.

The motion points to such incidents and others to highlight how potentially unreliable was the first trialís evidence, and to build a case for its central argument: that a combination of prosecutorial misconduct by thenĖassistant district attorney Daniel A. Ford and incompetence on the part of defense attorney Conway laid a legal foundation that ultimately doomed Baran to three concurrent life sentences. Ford declined to comment on Baranís case. Conway could not be reached.

ALTHOUGH THIS new information provides grounds for encouragement, Baranís legal struggles are only just beginning. Now that the motion for a new trial has been filed, the Berkshire County District Attorneyís Office, headquartered in Pittsfield and headed by David F. Capeless, has 30 days to oppose it. If it does, a Superior Court judge will decide whether to grant Baran a new trial. Capeless could also choose not to challenge the motion, something he could do if he thinks there is either overwhelming evidence in Baranís favor, or not enough to re-prosecute the case properly. At this point, he has not given any indication of how heís likely to approach the case. "It would be inappropriate for me to comment on a pending motion," says Capeless by phone from his Pittsfield office.

Thanks to a groundswell of public support, Baranís attorneys are sanguine. "My only cause for optimism is that it appears that the media, even the Berkshire Eagle, has a view that justice wasnít done here," says Swomley. "And if thereís sufficient enough outcry, then Mr. Capeless may just do the right thing. Thatís my only hope, otherwise this is going to be a battle." Since it will likely take months for the DA to collect the information needed to respond, he will likely request an extension from the judge, says Swomley.

Associate Justice Francis R. Fecteau is slated to preside over Baranís case. The defense team filed the motion in Springfield, because Ford ó now a Superior Court associate justice himself ó presides over the Berkshire County seat, in Pittsfield. "Obviously I canít oversee the case," says Ford.

As Baran and his lawyers await the DAís response, Baran sits behind bars, where he has spent nearly 20 years for crimes he insists he did not commit. Speculating on what may happen over the next few months, Baran says that his emotions fluctuate and that staying hopeful is a challenge. "Theyíre asking me to trust in the same system," he says, "that failed me before."

Dori Berman, Richard Rainey, and Lindsay Taub are graduate students in journalism at Boston University. This story was reported and written as part of the BU Investigative Journalism Project, a graduate seminar led by professors Dick Lehr and Mitchell Zuckoff.

Issue Date: June 25 - July 1, 2004
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