New Chance After 20 Years

Gay man convicted on child molestation charges given re-trial

BY ARTHUR S. LEONARD 

After his conviction on three counts of child rape and five counts of indecent assault and battery on a child in January 1985, Baran was sentenced to three concurrent life sentences on the rape counts and additional concurrent sentences of eight to ten years for the indecent assault and battery counts, meaning that he would most likely spend the rest of his life in prison.

There was no direct evidence that he committed any of these crimes, but the Massachusetts Court of Appeals upheld his sentence and the Supreme Judicial Court refused to review the case.

It took years for supporters of Baran to locate new attorneys, John Swomley and Harvey Silverglate of Boston, to work on a motion for a new trial, which was delayed until key evidence surfaced recently.

In a 79-page opinion that exposes the kangaroo court that convicted Baran as a perfect storm of defense attorney incompetence, prosecutorial ethical failures, and judicial ineptitude, Fecteau determined that Baran’s fundamental rights to a fair trial had been fatally undermined. Baran was ordered released on condition that the Berkshire County district attorney decides not to retry him.

However, District Attorney David Capeless immediately announced he would appeal Fecteau’s ruling, and would retry Baran if he lost the appeal, even though the case is more than two decades old, original witnesses are unavailable or have recanted their testimony, and the June 13 opinion indicates rather clearly that the investigation of Baran was most likely sparked by homophobia rather than any real evidence.

At a hearing a few days after announcing his opinion, Fecteau set bail at $500,000, requiring Baran to come up with $50,000 in cash. Fecteau ruled that if Baran were released, he would be subject to electronic monitoring and a restriction on being alone with anyone under age 16. Baran’s supporters raised the necessary cash in a few days, but the question whether he would be released also hinges on reversing a determination that he is a “dangerous sexual offender,” a designation he had sought in prison in order to be transferred to a segregated facility and escape the unmerciful abuse and attacks he suffered from other prisoners and guards during his first years of confinement.

The following account is based on Fecteau’s opinion as well as an investigative report published by the Boston Phoenix in 2004 and detailed background from a Web site maintained by Baran’s supporters, freebaran.org.

Baran, then a 19-year-old openly-gay high school drop-out, worked at the Early Childhood Development Center (ECDC) in Pittsfield as a teacher’s assistant. The mother of one of the children at ECDC, upset that her son was being exposed to a homosexual, demanded that Baran be fired. When ECDC failed to discharge Baran, the mother had her boyfriend call the police to complain that Baran had molested the boy. It turned out that the boy had been abused by somebody else, and ultimately he was not one of the victims upon which the criminal prosecution was based.

This set in motion a police investigation during a national wave of hysteria related to allegations of child molestation at day care centers and nursery schools. Fecteau’s opinion relates how a scenario typical of those years played out in Baran’s case—investigators, employing a technique since thoroughly discredited, staged a puppet show for the toddlers at ECDC and then questioned them, followed by lengthy, suggestive additional interrogation by parents and psychologists that generated videotapes, later selectively edited and presented to the grand jury to secure an indictment. Young “victims” then received extensive rehearsing from District Attorney Dan Ford—now a Massachusetts trial judge—to prepare them for the testimony that convicted Baran.

Ignorance and lack of resources plagued Baran as he prepared for trial. He was offered a plea bargain that would have given him a hard prison sentence, but nothing nearly as long as the one he received, but he asserted he had done nothing wrong and refused to plead guilty. His mother managed to scrape up $1,000 to hire an attorney, then picked someone out of the phone book who had no experience in criminal defense work, Leonard Conway, confusing his name with that of a prominent criminal defense attorney. Conway took the case, even though customary legal ethics would have him decline a case for which he had no experience.

Conway apparently failed to do the most basic things needed to prepare for a criminal defense. Although the district attorney relied heavily on testimony by three- and four-year-olds and psychological experts, Conway sought no expert advice or testimony on his side, making no attempt to question the credentials of prosecution witnesses. Fecteau found that some of their testimony should have been ruled out.

This oversight, however, may well have been the least of Conway’s failings. When the prosecution at the outset of the trial added a new charge involving an additional child victim not included in the grand jury’s indictment, the attorney waived Baran’s right to object, giving up valuable time he could have won to prepare a defense on that charge. Conway similarly did not object when the prosecution sprung a surprise expert witness not on the pretrial list, and made no attempt to question her credentials.

Conway did nothing to attack the suggestive methodology the district attorney used to question and prepare the child witnesses, made no objection to closing the courtroom during the children’s testimony—despite the constitutional guarantee of a public trial—and failed to counter the prosecution’s very effective and prejudicial use of hearsay testimony by the parents to reinforce their children’s testimony.

Indeed, Conway’s defense strategy seemed to rely almost entirely on having Baran take the stand after days of devastating adverse testimony and merely deny everything, as evidenced by the extraordinarily brief and ineffective cross-examination he undertook of prosecution witnesses.

Most importantly according to Fecteau, Conway never obtained the unedited videotapes of the interviews with the children, which contained much that could have been used to overcome the effect of their testimony. The judge’s opinion includes lengthy quotes from the transcripts of those videotapes, which had been “misplaced” by the district attorney’s office and were not finally located and turned over to Baran’s new attorneys until just a few years ago. The tapes vividly illustrate the suggestive techniques used to browbeat the children into making damning statements about Baran, some of which were recanted after the trial.

A key mistake made by Baran’s attorney was interjecting his homosexuality into the trial.

“Compounding the prejudice to the defendant was the issue of his sexual orientation, introduced only by the defense attorney,” wrote Fecteau, thus playing into the hands of the Commonwealth and its witness Dr. Ross and facilitating the appearance of an evidentiary link between the issue of gonorrhea and the defendant.

One of the children had been found infected with gonorrhea in his throat. Baran was found not to be infected, and given lack of evidence regarding that child, charges related to that child were dismissed after his testimony.

Conway had asked potential jurors if they would be prejudiced by the fact that Baran was gay, but then failed to raise the issue during his defense. However, that mention of sexual orientation allowed Ross to testify, that gay men were more likely to contract gonorrhea due to their lifestyle, and that a past case of gonorrhea could be rendered undetectable through treatment.

Conway failed to have the judge strike all the testimony relating to this child or instruct the jury to ignore it, after these charges were dropped.

“A jury’s inference that a defendant is gay can cause it also to infer that he deviated from traditional sexual norms in other ways, specifically that he engaged in illegal sexual conduct with minors,” Fecteau wrote.

Had the prosecutor raised Baran’s homosexuality, that would have been grounds for declaring a mistrial or reversing the verdict on direct appeal, the judge pointed out.

Though Fecteau concluded that Conway’s mistakes led to Baran not receiving a fair trial. he did not exonerate him, as that was not the question before him. The dubious nature of the prosecution case, however, is suggested repeatedly throughout his opinion.

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