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Bernard Baran

More on Bernard Baran --Massachusetts vs. Baran--

 

Maggie Bruck's Testimony  

 

by Raymond Arthur, February 28, 2005

 

Bernard Baran had a very good day in court today, although things got off to a rocky start.

 

At 7:50 a.m., as my train was nearing Worcester, I got a call from Bee on my cell phone. He was still at the Treatment Center in Bridgewater. No arrangements had been made for his transportation to court, although the proper habeas had been issued. (These snafus are all too common here in Massachusetts, as most of you already know.) I called his lawyer, John Swomley, immediately, who set about getting Bee to Worcester as soon as possible.

 

About 40 Baran supporters showed up. The hearing was scheduled for 9:00 a.m., but at about 9:15, Swomley told us that it would be at least 9:30 before we would start. Bee was finally brought into the courtroom at 10:37. It took another ten minutes to locate the judge, who was tending to other business.

 

Finally, Dr. Bruck was called to the stand and very briefly reviewed her credentials. Dr. Bruck received her Ph.D. from McGill University, taught at McGill, and is now a full professor at John Hopkins Medical School in Baltimore. She is an experimental psychologist with expertise in memory, especially the autobiographical memory of young children. Her research has addressed such questions as, "How faithfully and well do children remember?" and "What are the effects of different interviewing techniques?" She has also done research on the dangers inherent in the forensic use of anatomically detailed dolls during child interviews.

 

Dr. Bruck has published 30-40 articles in peer-reviewed journals and is co-author (with Stephen Ceci) of Jeopardy in the Courtroom, an award-winning book about child testimony.

 

Dr. Bruck identified two fundamental issues pertaining to accusations of child sexual abuse. One issue is the validity of theory of child sexual abuse accommodation. According to this theory, children are silent about sexual abuse. If there is suspicion, and the child is questioned, the child will deny the abuse. Suggestive questioning is necessary to break through the denial. Eventually, the child will assent and the stories will elaborate. But the child will sometimes recant. And sometimes restate the accusation.

 

This theory has been presented to the courts many times over the years. But research shows that while it is common for children not to reveal sexual abuse, there is little evidence to support the notion that children will deny abuse if questioned. And recantations are very rare. A second fundamental issue is the reliability of children's reports. Are children vulnerable to suggestion? Do children come to believe the statements of the interviewers? Hundreds of studies have shown that this is the case, and suggestive ways of interviewing children have been discredited.

 

Dr. Bruck testified that she had studied the videotapes of the interviews of Baran's child accusers and that it is her opinion that these tapes would have been useful ­ necessary ­ for an expert at Baran's trial. If you don't have the videos, you don't have the word-for-word questions and answers. Reports of interviews are filled with errors, even if the interviewer takes detailed notes. People usually say they don't ask leading questions, but in fact they do. They just don't remember that level of detail.

 

Bruck pointed out that a problem with videotapes is that they seldom depict the first interview. And early interviews contaminate subsequent interviews.

 

Dr. Bruck explained the proper way to interview children. You should get them to say in their own words what happened. You should ask open-ended questions. You shouldn't guide children down a path. You need to stress to children that they should only talk about things that really happened. You should be as neutral as possible and test as many alternative hypotheses as possible. You must ask whether the child's statements make sense. The interviewer should have no a priori beliefs. Hypotheses should arise from the interview itself.

 

Bruck said that the core problem of improper interviewing is interviewer bias. Information that confirms the interviewer's hypothesis is rewarded. Inconsistent information is ignored or punished. Eventually, the child comes to accept the beliefs of the interviewer. Bruck calls this selective reinforcement.

 

An improper interview very quickly focuses on the topic. There will be many yes-or-no questions. And there is a very large margin of error when you ask children yes-or-no questions. They respond differently to the same question put at different times.

 

Suggestions build up with repeated interviews.

 

Another sign of bad interviewing is what Bruck calls atmospherics. The interviewer will set the tone by making statements such as "that was really scary" or "you were very brave."

 

Dr. Bruck went on to describe some further problems pertaining specifically to the Baran interviews. She pointed out that all of the children were interviewed with at least one parent in the room, and that the parents were interviewers as well. She stated that the children were not lying. They are merely being compliant.

 

Bruck said it was a terrible mistake to have the parents in the room. The children were being told to tell what they had told the parents.

 

Another major problem with the Baran interviews was that they all used anatomically correct dolls. The children treated the dolls as play objects. And the children used them suggestively. Bruck pointed out that three- and four-year-old children don't have the cognitive apparatus to use these dolls. They don't understand that the dolls are supposed to represent them or other people. Children this young react to the dolls as dolls, not as symbols.

Bruck described some of her work that demonstrates the problems of using the dolls. A group of children were examined by their pediatrician. Half the children were touched on their buttocks or genitals. Half were not. The examinations were videotaped.

 

The children were subsequently interviewed and dolls were used in the interviews. The children were fascinated with the dolls, and often got fixed on their genitals. Many children were compelled by these dolls to show touching where no touching took place. And the children who were touched described the touching as much more invasive and aggressive than was the case. One little girl hammered a stick into the doll's vagina, and claimed that the doctor had done the same thing to her. Another strangled the doll with a ribbon and claimed that she has also been strangled by the doctor.

 

The doctors, of course, had done nothing improper at all.

 

Dr. Bruck then began talking about the interviews of the individual children in the Baran case, beginning with the first accuser, whom I call "Peter Hanes" at the Baran web site.

 

Peter's parents had complained to ECDC (the daycare center) that Baran was a homosexual and shouldn't be around children. A month later, they launched the first complaint against Baran. These parents also said that they had seen a TV program about child sexual abuse, and that Peter had all the signs. Bruck pointed out that there are no signs that indicate sexual abuse.

 

Bruck pointed out that the video of Hanes was not his first interview. Bruck showed excerpts of the interview, making comments from time to time.

 

Hanes was interviewed by Jane Satullo. Satullo was incredibly leading. She would say things like, "You can take the pants off. Just pull them down." And "What's that?" pointing to the doll's penis. Satullo would say, "What happened to your peepee hole? Did someone touch your peepee? Were your pants on or off?"

 

Satullo created suggestive atmospherics by saying things like, "This is hard to talk about. Were you scared? Sometimes when we talk about these things we get scared."

 

 

At one point, Satullo says, "Tell me a little more about what Bernie did to you?'

Peter replies, "He didn't do nothing."

 

Satullo ignores this and goes on to, "Did Bernie touch you while in the bathroom? I know you are scared."

 

Peter again says that Baran didn't do anything. But Satullo doesn't listen. As Bruck pointed out, to Satullo no really means yes. Her interviewing was highly suggestive and she continually overrides the child's statements.

Satullo goes on, "Did it hurt you when Bernie touched you?"

 

Peter says, "He didn't.

 

Satullo grabs the doll's penis. She says, "Did he pull it? Did he twist it around?"

 

And, of course, "Were you scared?"

 

To get more cooperation from Peter, his stepfather David was brought in. Peter is asked more leading questions. Satullo asks, "Did Bernie tell you anything when he pulled on your penis?" Peter, of course, never said that. (It was Satullo who was doing all the penis pulling.)

 

Finally Satullo brings in Peter's mother, and it is now three adults to one child. David says, "Remember what you told us Peter? Did Bernie touch you?

 

Again, Peter says no.

 

Throughout the rest of the interview, Peter said a lot more no's under a lot of pressure. No details whatsoever were produced.

 

Bruck summed up the interview by saying, "At the very best Peter said Bernie touched him on the outside of his crotch. But he really didn't say anything."

 

The next interview shown was of a girl accuser, the girl I call Gina Smith at the Baran web site. (Bruck pointed out that what we were going to see was not Gina's first interview.)

 

Satullo is again the inquisitor. She says things like, "It's OK to tell me bad stuff. Can you tell me the bad stuff Bernie did? It's real scary."

 

Gina says, "I forgot the bad stuff that Bernie did." Gina's mother is brought into the room. Gina says to her mother, "I forgot the bad stuff that Bernie did to me."

 

Satullo drags our her dolls and says, "Can you show me what Bernie did to you? Did Bernie touch you in that hole? Did Bernie touch you in your peepee hole?"

 

Satullo suggests, "Did he use his finger?" When Gina agrees, Satullo says, "You're a very good little girl." Gina also says that another teacher, Stephanie, was in the room. But she cannot name the room and Satullo gives a lot of suggestions about what the room  might be.

 

At one point she gets Gina to say, "He just did the same thing I did to the dolly."

 

Bruck pointed out that this interview would have lasting effects because there were so many suggestions about what Bernie did to her. She pointed out that Gina often started by nodding no, would change to yes upon questioning, and often change her mind again. Satullo tried very hard to get Gina to talk about something called, "The Bird's Nest Game." Satullo says things like ­

 

"You're real scared, and we understand how scared you are."

 

And ­

 

"My guess is that someone told you that if you talked about it you would get in trouble."

 

And ­

 

"No one's going to hurt you. No one goings to hurt your mommie and daddy. No one's going to hurt the baby bird."

 

Bruck said that Satullo created an aura around the Bird's Nest Game as something scary and terrible. The origin of the Bird's Nest Game was probably a well known children's book about a baby bird called, Are You My Mother? This is a book that Baran used to read to the children at ECDC.

 

Bruck said she had never heard of a sexual use of the term Bird's Nest Game among children or anyone else.

Near the end of this interview, Gina said, "Mommie, when we get home can we call Bernie?"

 

Bruck said that Satullo appeared to be on "automatic pilot" and that all inconsistent answers were simply ignored. Bruck also pointed out that there was an enormous change from this first interview to the testimony that was eventually presented at trial. For example, at trial, claims were made that Bernie had raped Gina in the bathroom, scooped blood out of her vagina with scissors, and stabbed her in the foot.

 

The next videotape was of the child I call Richard Thompson at the Baran web site. The interviewer is not Jane Satullo, but Pat Palumbo.

 

Richard had been taken to a good touch/bad touch puppet show involving anatomically correct dolls. He was interviewed after the puppet show, but denied abuse. But he was subsequently reinterviewed. The video was of one of the reinterviews.

 

Palumbo begins by undressing a doll. She points to the penis and says, "What do you call this?" Richard says, "Doobie." She points to the butt, which Richard calls a butt. Then Palumbo starts talking about touching.

Bruck pointed out that you just don't start a child interview by talking about doobies, butts, and touching. She described the technique as a "funneling process."

 

Palumbo presents Richard with what Bruck called "an army of dolls" and questions Richard about someone touching him. Richard first discloses that "Joey," and then, a bit later, "Jerry" touched him.

 

Palumbo ignores this and says, "You had an adult teacher. A boy teacher. Did this boy teacher ever do anything to the children that you want to tell me?" [Baran was the school's only male teacher.]

 

Palumbo then says things like, "Let's pretend that this doll is Bernie and this doll is Richard"

 

Bruck said, "You don't ask children to make believe. That does not tell the child that we want to know what really happened."

 

Palumbo also said things about Richard's friend, "John Larson." Bruck said that it is very dangerous to use another child's information in an interview."

 

Pat Palumbo also interviewed another boy, who I call John Larson at the Baran web site.

 

Palumbo asks, "Do you remember being touched with a bad touch? Who touched you?

Larson replies, "Bryan."

 

 

Palumbo says, "How about another person? A big person."

 

Larson replies, "Mary."

 

Palumbo asks, "Did you have a boy teacher? How did you like him?"

 

Larson says, "Good." Palumbo whips out her dolls and says, "You want to check these dolls out? You want to take their clothes off and see what they look like?"

 

Palumbo asks a great many leading questions about Baran, but he is not at all cooperative." Even the segment that was shown to the Grand Jury contained no accusations.

 

Palumbo asks Larson to draw a picture of Bernie. At one point the child says, in response to a question, "In his mouth." Palumbo says,

 

"In mouths?" and interprets this to mean that Baran was putting his penis into children's mouths. But it was entirely unclear what Richard might have meant.

 

When Palumbo asks, "Do you remember if it happened in the shed one time?", Richard replies, "Nothing happened.

 

At the end of the interview there is an exchange between Palumbo and a detective in which Palumbo apologizes because she didn't get much. But the detective assures her that they got quite a lot. Bruck said that this demonstrated that the main point of the interview was not to find out what had happened, but to "mine information."

 

Because time was running short, Bruck spent little time on the video of another child, who I call Annie Brown at the Baran web site. The tape was very short and appears to be incomplete. The interview seems well in progress where the tape begins. Annie uses the dolls to show she's been touched. She provides little information. The mother was in the room and there were many previous interviews to the one that was taped. Bruck called the Brown interview, "Uninterpretable."

 

After showing the videotapes, Dr. Bruck talked about some of the themes that ran through all of the interviews. Almost all questions were specific, not open ended. The child was never allowed to tell anything in his or her own words. A tremendous number of dolls were used. There were usually at least two, sometimes three adults present. There was heavy use of atmospherics ­ the interviewers made the children afraid that something terrible might have happen. There was a lot of recantation. Bruck said she had huge concerns about the reliability of the children's statements.

 

Bruck also spoke briefly about the competency hearing of the remaining child witness, the girl I call Virginia Stone at the Baran web site. The judge was trying to question Virginia about whether it was a good thing to tell the truth when Virginia came back with, "Bernie touched me." Bruck said that Virginia didn't understand the question but knew she was supposed to say, "Bernie touched me."

 

At this point the judge called an adjournment because he had another commitment. (This was at about 1:40 p.m.) While John Swomley had nearly completed his direct examination, DA Capeless hadn't even begun his cross. We hope the hearings will continue at 9 a.m. on March 21. This may be a problem for the judge, as he is starting a murder trial on March 14. But we have also reserved April 14 as a court date. I will provide more details later this month.

Baran lawyer begins his case

By D.R. Bahlman, Berkshire Eagle Staff, January 26, 2005

WORCESTER -- Bernard F. Baran's lawyer called a succession of attorneys to the witness stand in Worcester Superior Court yesterday in an effort to bolster his contention that Baran's appeals of his criminal convictions in Berkshire County were tainted by conflicts of interest.

John G. Swomley's witness list included C. Jeffrey Cook of Cain, Hibbard, Myers & Cook, the county's largest law firm, two former associates of the firm, and a lawyer from Scituate who now limits his practice solely to the representation of a shelter for the homeless.

Swomley, whose office is in Boston, is seeking a new trial for Baran, who is now 37 and is serving three consecutive life terms in state prison.

Convicted of sex assault

In 1985, Baran, then 19, was convicted in Berkshire Superior Court of sexually assaulting children at a day care center in Pittsfield. His convictions were upheld on appeal in 1986.

Baran's motion for a new trial will be ruled on by Superior Court Judge Francis Fecteau.

Yesterday, Swomley and Berkshire County District Attorney David F. Capeless agreed to meet again in Fecteau's court Feb. 2 at 9 a.m. and conclude their arguments Feb. 28. The judge will rule at some point after that. If he orders a new trial for Baran, it will be up to Capeless to decide whether to retry the case. If he elects not to prosecute, Baran will go free.

Swomley and Baran's supporters, more than a dozen of whom attended yesterday's hearing, believe that Baran's trial resulted in an injustice brought about by the use of unreliable evidence, the incompetence of the lawyer who defended him, the use of investigative techniques that have since been discredited and prosecutorial misconduct.

Three of the six alleged victims recanted their stories after Baran's conviction, Swomley has said.

Yesterday, the lawyer aimed to strengthen his argument that Cain, Hibbard, Myers & Cook had a conflict of interest that may have affected the quality of the criminal appeal that the firm prepared on Baran's behalf.

Specifically, Swomley contends that the firm's representation of the family of a girl who was enrolled at the day care center and who was allegedly molested by Baran conflicted with its representation of Baran on his criminal appeal.

Repeated objections

Capeless yesterday repeatedly objected to the form of Swomley's questions and frequently rose to suggest that Swomley's lines of questioning had nothing to do with the issue of conflict of interest.

Fecteau sustained some of the district attorney's objections, but overruled others, sometimes declaring that he was granting "latitude" in order to reach the crux of a particular issue more quickly. Occasionally, the judge asked questions of witnesses.

In testimony yesterday, Cook, who joined Cain, Hibbard as a full partner in 1984, said that the records he has been able to find indicate that the firm "opened a file" on the family's potential civil case against the Early Childhood Development Center on Feb. 5, 1985. The date is about a week after Baran's criminal conviction in Berkshire Superior Court.

Swomley suggested yesterday that the firm's interest in the Baran criminal case predated even the start of Baran's trial.

Referring to a letter to Cook, dated Jan. 3, 1985, from Daniel A. Ford, the assistant district attorney who prosecuted Baran, Swomley noted that the letter refers to materials about the Baran criminal case being sent to Cook "at your request."

As Swomley's questioning neared its end, Cook told Fecteau that he had difficulty answering some of Swomley's questions because he believes the letter from Ford was written in connection with an inquiry on behalf of clients other than the child and her family.

"I don't remember anything about my contact with Dan Ford," said Cook. The lawyer also said he doesn't recall talking with his law partners about any evidence against Baran before Baran's trial started.

The firm destroyed its records of the Baran case between 1992 and 1995 in order to gain storage space, Cook testified yesterday.

Asked by Swomley whether he was known among his colleagues to have close connections with the district attorney's office at the time, Cook replied that he is "pleased to say" he has minimal contact with criminal prosecutors, and acknowledged that such contact would be "very unusual."

"Wouldn't that cause you to remember it?" said Swomley.

David O. Burbank, a former Cain, Hibbard associate who now operates a mediation practice in Pittsfield, testified yesterday that he represented the child and her family and helped to prepare Baran's criminal appeal, which he has said was undertaken about eight months after the conviction.

However, said Burbank, he has "absolutely no memory of this person, her child, nothing ..." about the case.

He also denied having any knowledge that the girl had complained of having been sexually molested by someone else in a manner identical to the way in which she said Baran molested her.

Swomley suggested that the girl's family had contemplated suing the day care center for money damages well before Baran's criminal trial began and that the family had a financial motive to see him convicted. The girl testified at the trial.

Also on the stand yesterday were Virginia Stanton Smith, a former associate with Cain, Hibbard, and Howard Guggenheim, a lawyer from Scituate.

Smith, a member of the law firm of Grinnell, Dubendorf & Smith, said that she joined the day care center's board of directors in early 1985. After the charges against Baran were publicized, Smith said, she wrote a letter dated Jan. 10, 1985, to parents of children at the center on behalf of the board to convey the board's "concern and empathy for you and your family."

In a letter dated Feb. 1, 1985, Smith said yesterday, she resigned from the board, citing Cain, Hibbard's decision to represent the family of a child in a civil case against the day care center.

Smith said yesterday that she cannot recall who asked her or instructed her to resign from the board, nor did she recall who the client was or any discussion of a potential conflict of interest with members of the firm.

Guggenheim said he took over the family's civil case from Cain, Hibbard after the clients retained him on a recommendation from a friend.

Guggenheim filed a complaint for the family May 16, 1985.

Under questioning from Swomley, Guggenheim described the file he received from Cain, Hibbard as "having some initial investigation on it."

D.R. Bahlman can be reached at dbahlman@berkshireeagle.com or at (413) 496-6243.

"An obviously innocent man has spent 20 years in prison and it troubles me. I'd like to feel that every day I try to do something, some little thing that could get him out of prison."

Lawyer to speak on behalf of long-imprisoned man

By John E. Mitchell North Adams Transcript, October 21, 2004 -

WILLIAMSTOWN -- Attorney John Swomley's talk tonight at Williams College will bring one of Berkshire County's most notorious sex offender cases to local attention, with the hope of stirring up more support.

Swomley's client, Bernard Baran, was convicted of molesting five children at a Pittsfield day care center in 1984. Almost 20 years later, Baran still maintains his innocence and his case is filled with controversy, partially due to Baran's status as an openly gay male, but also thanks to new details that Swomley claims show that Baran did not get a fair trial and prove his innocence.

Unfortunately for Swomley, District Attorney David Capeless does not seem to agree and it has erupted into yet another war of words regarding the case.

"After meeting with him yesterday, I'm pretty clearly convinced that he's not going to do a thing to help me and, in fact, he's going to do everything he can to stop me," said Swomley.

Swomley says that rather than even attempt to convince Capeless of Baran's innocence, he preferred to plead that Baran did not get due process in his trial. For instance, Swomley points to the failure of the district attorney office during the trial to hand over evidence that someone else had molested the victim to the defense council. According to Swomley, Capeless disagreed that this was a significant argument for retrial.

"My problem is that I have no confidence that Mr. Capeless has read anything in this case," said Swomley. "He certainly hasn't viewed the videos, he's told me as much, he's had them, he's never looked at them. But anybody who looks at how the process that one is due in a criminal case unfolded in this case couldn't conclude that Baran got a fair trial. That's really all I was trying to get him to come around to."

District Attorney David Capeless is far less willing to reveal what went on in the 20 minute closed door meeting on Wednesday.

"Unfortunately, private conversations that I've had with Mr. Swomley," said Capeless, "he feels no compunction about repeating them to other people, and, apparently, I'm going to have to stop having any conversations with him if that's what he's going to continue to do."

Capeless believes that Swomley should not be addressing specific issues in a public forum, that they are best suited for traditional and official processes.

"He wants to make his position within the media," said Capeless. "I want to do it properly. I'm going to do it in court."

Swomley charges that the current district attorney's opposition to a retrial is firmly entrenched in a network of old time power brokers within Berkshire County, including current Judge Dan Ford, then-prosecutor on the case, and the late district attorney, Gerald Downing, who is alleged to have received the Department of Social Services memo pointing to other abuse that Swomley says was suppressed from the defense.

"I'm nibbling at the power structure," said Swomley. "A lot of people made their names and reputations on this case and if it crumbled into dust, it would show that they used people's misfortune -- or even caused people's misfortune -- in order to advance their own personal careers."

Capeless counters that Swomley has no authority to speculate on the motivations of the D.A. office's decision-making.

"I will be the one who makes statements about what the district attorney thinks and what he is going to do, not Mr. Swomley," said Capeless.

Swomley says that his public statements in regard to Capeless reflect a frustration at the closed-door process which, to him, seems to lead nowhere.

"I have tried to speak with him reasonably in private and my conclusion is that he knows so little about this case that there is nothing I can gain from it -- I have his intransigence, his refusal to try and learn the facts of this case, and his belief that if he avoids it, like an ostrich, maybe nothing will happen. He's wrong."

Bernard Baran himself might be perceived as overshadowed by the political bickering, but Fred Leber has not lost sight of him. Leber organized the event at Williams College after he became aware of Baran's plight while teaching a class at Paralegals in Pittsfield that required some research on another case.

"I decided that I had to get involved and do something too," said Leber.

One thing he decided he could do was to corral student support to bring Swomley to speak at Williams College and spread the word of Baran's plight, receiving help and advice from other well known Williams College fixtures like Michael Brown, the chairman of the anthropology and sociology, and Stephen Collingsworth, assistant director and coordinator for Queer Issues at the Williams College Multicultural Center.

"An obviously innocent man has spent 20 years in prison and it troubles me," said Leber. "I'd like to feel that every day I try to do something, some little thing that could get him out of prison." The lawyer described the social atmosphere of the mid-1980s as being highly charged by the issue of child sex abuse and "recovered memory."                                     

* * *   Mr. Baran was convicted in large part because of statements by children that   were produced through interviewing techniques that have now been discredited. So-called "repressed memories" may be no more than memories "created" by interrogators with an agenda.

Baran's lawyer blasts county 'power brokers'                       

D.R. Bahlman, Berkshire Eagle Staff, The Berkshire Eagle (Pittsfield, Massachusetts) October 25, 2004

WILLIAMSTOWN Bernard F. Baran's lawyer has fired a broadside at the "power brokers" of the county's legal establishment, contending that their determination to stonewall the retrial of child sex abuse charges against Baran has kept an innocent man in state prison.

The lawyer, John G. Swomley of Boston, discussed the Baran case last week at the invitation of several student groups at Williams College. Addressing some 60 people gathered in a lecture hall at the college, Swomley blasted the Berkshire County district attorney's office, the county's largest law firm and an ex-prosecutor who now sits as a Superior Court judge.

Swomley said that the judge, Daniel A. Ford of Pittsfield, the former assistant district attorney who prosecuted Baran at his 1985 trial, "buried evidence intentionally" to help assure a conviction in a case that Ford saw as a "high profile ticket to a judgeship."

According to Swomley, who said he recently reviewed portions of the prosecution's file in the Baran case, Ford saw to it that evidence that could have bolstered Baran's defense was not turned over to his lawyer.

Such disclosure of so-called "exculpatory evidence" is required under the U.S. Supreme Court's ruling in Brady v. Maryland, Swomley said.

Specifically, he said, Baran's trial attorney was not informed that the Department of Social Services had turned over to the district attorney's office numerous reports of sexual abuse involving one of Baran's alleged victims. The reports suggested that the abuse was committed by someone other than Baran, Swomley said.

The lawyer described the social atmosphere of the mid-1980s as being highly charged by the issue of child sex abuse and "recovered memory." The Baran case was tried amid the "hysteria" stirred by a series of high-profile child sex abuse cases that had just begun to unfold, Swomley said.

'Outrageous allegations'

Through a spokeswoman for the Massachusetts Trial Court, Ford denied Swomley 's charges.

"The outrageous allegations made by Mr. Swomley at the Williams College forum are completely untrue," the judge said. "However, because Mr. Swomley has touched on a case pending before the court, I am constrained by the Judicial Conduct Code from commenting on that matter."

Earlier this year, Swomley filed a motion for a new trial for Baran. A hearing on the motion is scheduled for later this month before Superior Court Judge Francis Fecteau of Worcester.

Swomley contends that Baran was the victim of an injustice brought about by the use of unreliable evidence, the incompetence of the lawyer who defended him at trial, the use of investigative techniques that have since been discredited and prosecutorial misconduct.

Three of the six alleged victims recanted their stories after Baran's conviction, Swomley has said.

"Two told their therapists within a few months of [the convictions], and a third did so in front of a high school class," he wrote in a summary of his motion for a new trial.

Three life terms

Baran, who is now 37, is serving three consecutive life terms in state prison. His convictions were upheld by the state Appeals Court in 1986.

Last week, Swomley said that "no [new] issues" were raised on the appeal, which was handled by attorneys from Cain, Hibbard, Myers & Cook of Pittsfield, the county's largest law firm.

He said that among the materials he recently received from the Berkshire County district attorney's office is a 1985 letter from David Burbank, who was then practicing at Cain, Hibbard, to then assistant district attorney Ford.

Dated some five days after the verdict in the Baran case, the letter requests access to the prosecution's file, presumably to aid Burbank's preparation of a client's civil lawsuit against the Pittsfield day care center where Baran worked and where the sexual abuse allegedly occurred.

Whether Burbank's request was complied with is not clear, but Swomley noted last week that about eight months after the letter was sent, Baran's mother retained the firm to handle her son's appeal of the criminal case. Burbank was one of the lawyers who worked on the appeal, Swomley said.

'Conflict of interest'

"This is a conflict of interest. ... I went to law school and I remember a few things, and one of them is that this is a big no-no," Swomley said.

Burbank is no longer associated with Cain, Hibbard. C. Jeffrey Cook, a partner in the firm, said yesterday that he discussed Swomley's statement with Burbank and that Burbank denied writing such a letter.

"He says it didn't happen," Cook said.

Since taking the case some four years ago, Swomley said, he has been stymied in his efforts to documents and other records that he says could help him establish Baran's innocence.

Swomley has accused the district attorney's office of foot-dragging.

For more than two years, Swomley and the DA's office have been sparring in Fecteau's court over the evidence in the Baran case.

Unedited tapes sought

The matter has been stalled over such issues as preservation of the confidentiality of some of the material, but Fecteau ordered in 2003 that Swomley be provided with all the evidence that the DA's office supplied to Baran 's previous lawyers, and Swomley in 2003 signed a "protective order" that guards the confidentiality of some of the evidence.

Among the items sought by Swomley are unedited videotapes of the grand jury that indicted Baran and unedited videos of interviews with the children whom Baran was convicted of molesting.

Last week, Swomley said that the unedited tapes would show the extent of the "coaching" that the children were put through. He said that the preparation of the young witnesses apparently included the promise of "prizes."

On a videotape that he received from the DA's office -- which Swomley said had assured him that the tape had only recently "been found in a box of old DWI videos or something" -- a child is heard demanding to know when he will get his prize.

In a document that runs to more than 350 pages, Swomley alleges that four of the six children who testified at the jury trial held before then Superior Court Judge William W. Simons were not competent witnesses, primarily because they exhibited no understanding of the difference between the truth and a lie.

"The error was compounded by the fact that none of the children were properly placed under oath to tell the truth," reads a summary of Swomley's brief. "Each child was asked only to 'promise to tell what happened.' "

Swomley said that he has abandoned all hope of resolving outside of court the dispute over evidence.

Last week, he said that his latest attempts to do so were rebuffed by District Attorney David F. Capeless.

"I was under the impression that we were having private discussions," Capeless said last week. "Mr. Swomley evidently feels no compunction in making public statements about them. We will deal with this in court, the proper way. ... If the positions were reversed, I can only imagine Mr. Swomley's outrage. ... This is a 20-year-old case, it's very difficult to put it together, but we are trying to do that."

Swomley said last week that his patience is exhausted and that he is "done trying to work this out quietly."

"I'm fighting to the end now," he said.

D.R. Bahlman can be reached at dbahlman@berkshireeagle.comor at [413] 496-6243.

                                Copyright 2004                 The Berkshire Eagle (Pittsfield, Massachusetts)

Bernard Baran and conspiracy theories

Editorial: October 26, 2004

Is it possible to make a good case for a retrial of Bernard F. Baran, convicted in 1985 of sexually assaulting children in the Pittsfield day-care center where he worked as an aide? Yes. Is it likely that the "power brokers" of the Berkshire legal establishment have conspired to prevent Mr. Baran from receiving that retrial, as claimed by Mr. Baran's lawyer, John G. Swomley? No. And it is difficult to see how Mr. Swomley's accusations do anything to help his client's cause.

In addressing an audience at a Williams College lecture hall last week, Mr. Swomley accused the Berkshire County district attorney's office, specifically District Attorney David F. Capeless, of dragging his feet in releasing relevant evidence. He argued that the Pittsfield law firm of Cain, Hibbard, Myers & Cook had a conflict of interest related to the appeal process, and maintained that the prosecutor in the case, Daniel A. Ford, now a Superior Court judge, buried evidence to secure a high-profile conviction. The three assertions are backed by precious little evidence, and the last is simply conjecture.

An argument can be made for a Baran retrial without needlessly clouding the issue with Oliver Stone-style conspiracy theories. Mr. Baran was convicted in large part because of statements by children that were produced through interviewing techniques that have now been discredited. So-called "repressed memories" may be no more than memories "created" by interrogators with an agenda. Forensic evidence was scarce and inconclusive. Information given to the Department of Social Services suggesting that one of the abused children was abused by someone other than Mr. Baran did not reach the defense. The fact that Mr. Baran is gay fit in with mid-'80s "gay predator" theories that would not hold water in a courtroom today.

Outdated theories and techniques, shoddy forensic work, a failure to get key evidence to Mr. Baran's legal team and a virulent anti-gay bias peculiar to the time combined to deny Mr. Baran, who is now serving three life sentences in prison, his right to a fair trial. In essence, Mr. Baran was a victim of his times. There is no reason to believe, however, that a massive conspiracy among members of the legal community, then or now, was formed to jail Mr. Baran and keep him jailed. There is no evidence of such a conspiracy and no logic behind the formation of one.

All of the evidence related to the Baran case should see the light of the day as soon as humanly possible. We believe that upon release of that evidence, given what is already known of the flaws in his first trial, that Mr. Baran will be found deserving of another trial. The formulation and promotion of elaborate conspiracy theories is a pointless distraction and won't help justice come any sooner.

By D.R. Bahlman Berkshire Eagle Staff, August 26, 2004

PITTSFIELD -- Declaring that he is "totally frustrated with the foot dragging," Bernard F. Baran's lawyer said yesterday that he will ask a judge to order the Berkshire County district attorney's office to hand over documents and other records that the attorney says could help him establish Baran's innocence.

The lawyer, John G. Swomley of Boston, said he hopes to present his case before Superior Court Judge Daniel A. Ford as early as Monday.

Swomley has asked Ford for permission to serve the district attorney's office with "short notice" of the court date on the ground that Berkshire County District Attorney David F. Capeless "is refusing to discharge his duties [under the state's Freedom of Information Act], and it is in [Baran's] and the public's interest to make him comply with the letter of the law immediately."

Contacted at his office last night, Capeless said the state's Freedom of Information Act does not apply to the Baran case because it has been reopened by Swomley.

"Because of the nature of [Swomley's] motion for a new trial, the case is once again in an investigatory stage and therefore is exempted from the public records law," the district attorney said. "It is my intention to make sure that Mr. Swomley is and has been provided with everything he is entitled to under the law."

Capeless declared that his "greatest difficulty in this case has been determining not only what is the extent of the file in a case that is over 20 years old, but what may possibly be missing. That, of course, is very difficult."

As an assistant Berkshire County district attorney, Ford prosecuted Baran at his 1985 trial on charges that he sexually molested five children at a day care center in Pittsfield.

In a telephone interview yesterday, Swomley said he had initially considered asking Ford to recuse himself, but changed his mind after concluding that the judge will be asked to consider a relatively straightforward question of whether a public official complied with the state's freedom of information law.

"I think he will be hard pressed to deny [the motion]," Swomley said of Ford. "... If he does deny it, it will be yet another example of the machine hiding the truth."

Swomley said he has tried for years to get access to the material, but to no avail. Last April, Swomley filed a motion in Berkshire Superior Court seeking a new trial for his client.

Swomley contends that Baran was the victim of an injustice brought about by the use of unreliable evidence, the incompetence of the lawyer who defended him at trial, the use of investigative techniques that have since been discredited, and prosecutorial misconduct.

Baran, who is now 37, is currently serving three consecutive life terms in state prison. His convictions were upheld by the state Appeals Court in 1986.

In April 2004, Swomley's papers state, he invoked the state's Freedom of Information Act in asking Capeless to permit Swomley to "inspect and examine any and all public records pertaining to Mr. Baran's case, specifically, all documents and records pertaining to [the indictment of Baran]."

On May 13, seven days after the passage of the 10-day deadline provided in state law for a response to freedom of information requests, Capeless denied Swomley's, according to documents filed yesterday in Berkshire Superior Court.

"[Capeless] reasoned that 'any inspection of documents in the above-referenced case will proceed pursuant to the ongoing discovery process,' " the complaint reads.

For more than two years, Swomley and the Berkshire district attorney's office have been sparring before a Worcester-based Superior Court judge over the evidence in the Baran case.

The matter has been stalled over such issues as preservation of the confidentiality of some of the material, but Superior Court Judge Francis Fecteau ordered in 2003 that Swomley be provided with all the evidence that the DA's office supplied to Baran's previous lawyers, and Swomley in 2003 signed a "protective order" that guards the confidentiality of some of the evidence.

Unedited videos sought

Among the items sought by Swomley are unedited videotapes of the grand jury that indicted Baran and unedited videos of interviews with the children whom Baran was convicted of molesting.

In June 2004, according to the complaint filed yesterday, Swomley made another, more detailed, written request for public records associated with Baran's case.

"As of the date of this filing, plaintiffs have not yet received a written reply to this request and have not been able to inspect and examine the records," the document reads. "On Aug. 16, 2004, in a phone call with [Capeless], [Swomley] directed his attention to the June 30, 2004, letter requesting that he be permitted to inspect and copy the aforementioned records. [Capeless] again refused to permit it. No explanation was given."

Swomley contends that Capeless' reason for denying his initial request was legally invalid and that the district attorney missed the 10-day deadline for replying to both requests.

Still pending is Swomley's motion for a new trial for Baran.

In a document that runs to more than 350 pages, Swomley alleges that four of the six children who testified at the jury trial held before then Superior Court Judge William W. Simons were not competent witnesses, primarily because they exhibited no understanding of the difference between the truth and a lie.

"The error was compounded by the fact that none of the children were properly placed under oath to tell the truth," reads a summary of Swomley's brief. "Each child was asked only to 'promise to tell what happened.' "

Among the prosecution's "most egregious behaviors" at trial, Swomley's brief contends, was the "suppression of pretrial [Department of Social Services] investigations that were conducted pursuant to claims by two of the alleged child victims that their mothers' boyfriends did the same thing to them that Mr. Baran supposedly did, at least one of which was substantiated and referred to the district attorney's office for prosecution."

At least nine additional DSS reports on other allegations made against Baran within two weeks of his arrest were not brought to the attention of the defense, Swomley contends.

In addition, a "clearly incompetent child witness" was coached by Ford to "just say yes" when the Superior Court clerk asked if she promised to "tell what happened," Swomley wrote.

Three of the six alleged victims recanted their stories after Baran's conviction, the lawyer asserts.

"Two told their therapists within a few months of [the convictions], and a third did so in front of a high school class," he wrote.

http://www.berkshireeagle.com/Stories/0,1413,101~7514~2359494,00.html

The Boston Phoenix series The Trials of Bernard Baran

Truth can never be told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell

Truth suppress'd, whether by courts or crooks, will find an avenue to be told. Sheila Steele, injusticebusters.com

Publisher Sheila Steele

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