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Freedom on the horizon?
Bernard Baran may get his new trial

As reported by the Phoenix in June 2004, Bernard F. Baran Jr., an openly gay man convicted in January 1985 of raping and abusing five children at Pittsfieldís now-defunct Early Childhood Development Center, is fighting an uphill battle to win a new trial (see "The Trials of Bernard Baran," News and Features, June 18, 2004). Baran, like many others convicted during the wave of day-care-abuse cases that spread across the country during the 1980s, has always maintained his innocence. Now, if a recent court ruling in his favor is any indication, his freedom after nearly 20 years behind bars may finally be in sight.

A hearing on December 28, 2004, at the Worcester Superior Court, marked Baranís second court appearance since his 1986 appeal. Inside the courtroom were more than two dozen of his friends, family, and staunch supporters, who watched as Baran was ushered into the courtroom in shackles, wearing a navy-blue pinstripe suit. Just a few days before, Baran had told family how painful and embarrassing it was to be led into court like a dangerous animal.

Eight months have passed since the filing of Baranís final bid to undo what his supporters claim was a grossly unjust conviction. Now, the case has heated up, with closing arguments scheduled for Monday, February 28. Judge Francis Fecteau ruled two months ago that the defense could call expert witnesses, who will testify that conflicts of interest plagued Baranís appeal. They will also attempt to cast doubt on the credibility of the very testimony that many believe convicted Baran in the first place.

As the Phoenix previously reported, the unedited videotapes of five of Baranís six child accusers were thought no longer to exist. But Berkshire County DA David Capeless found the tapes when he decided to organize the disheveled basement archives of the late DA Gerard Downing, according to Baranís attorney, John Swomley. The tapes may hold the key to overturning Baranís conviction, since edited versions were shown to the grand jury that considered his case; presumably, the edited tapes were weighed heavily in favor of his indictment.

The reliability of the childrenís taped interviews is central to the defenseís case. Baranís lawyers claim the interviewersí techniques were suggestive, leading, and insufficient to determine not only whether the children were competent to testify, but also if they knew the difference between fact and fiction at such young ages. The children were between the ages of two and six at the time.

This new evidence is also expected to shed light on other defense claims. For example, Swomley argues that Baranís original trial attorney, Leonard Conway, was incompetent and failed to pursue information that might have helped to prove his clientís innocence.

The expert witnesses scheduled to testify on Monday include Dr. Maggie Bruck, professor of psychiatry at the Johns Hopkins University and co-author of Jeopardy in the Courtroom: A Scientific Analysis of Childrenís Testimony. Allowing Bruckís testimony is clearly a ruling in Baranís favor, made over Capelessís objection to the presentation of new evidence. However, Swomley convinced Judge Fecteau that this was not in fact "newly discovered" scientific evidence, but rather an example of Conwayís deficiency.

Capeless declined to comment on the ruling. "Itís improper for an attorney to comment about a pending case," he said. "Mr. Swomley wants to try this case in the press. Iím going to try it in the court."

At two separate evidentiary hearings on January 25 and February 2, Swomley called four witnesses ó C. Jeffrey Cook of Cain, Hibbard, Myers & Cook, the firm that handled Baranís appeal; two former associates of the firm, Virginia Stanton Smith and David Burbank; and Howard Guggenheim, the attorney who represented one of the child victims in a civil suit against the day-care center ó to address the question of whether conflicts of interest tainted Baranís appeal.

The memories of most of the witnesses were shaky. Still, testimony revealed that Berkshire Medical Center was a client of Cain Hibbard. The doctor who examined the alleged victims was affiliated with Berkshire Medical Center, so it would be in the hospitalís interest to see Baran convicted, thus confirming its doctorís evaluation. Therefore, in handling Baranís appeal, Cain Hibbard faced on obvious conflict of interest between two clients. Similarly, Guggenheim verified that prior to his representation of an alleged child victim, Cain Hibbard had handled the case, although to what extent could not be determined. Finally, Smith testified that she resigned from the board of the Early Childhood Development Center (which the alleged victims were suing) because her employment at Cain Hibbard presented the potential for inappropriate communication about the case. Her board position could have adversely affected Baran if, for example, Cain Hibbard had gone into Baranís appeal with preconceived notions about his guilt or innocence based on what Smith had heard at the day-care center. Most important, neither Baran nor his mother, Bertha Shaw, who both testified on February 2, was informed of these potential conflicts.

Arguments in the case will conclude this Monday with Dr. Bruckís much-anticipated testimony. The judge will then consider the evidence and rule on whether to grant Baran a new trial. If he does, it will be up to Capeless to decide whether to retry the case. Should he choose not to prosecute, Baran will walk free.

When the most recent court session ended, Baran was led out by bailiffs without seeing his loved ones. He was taken back to the Massachusetts Treatment Center, in Bridgewater, where he is serving two consecutive life sentences. As his family and friends gathered for lunch at a restaurant near the courthouse, Baran, whose spirits have been down in recent months, phoned to thank them for their support.

"Youíre asking me to trust in the same system that failed me before," he said. Swomley, however, said he is feeling "cautiously optimistic" for the first time in years.

Lindsay Taub can be reached at l_taub@hotmail.com

Issue Date: February 24, 2005
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