(Starred items are not directly part of the Baran story, but are included to provide historical or social context.)
(The names of all the child witnesses have been changed. The name of the man accused of sexually abusing Peter Hanes has been changed.)
*January 20, 1692. In Salem, Massachusetts, 9-year-old Elizabeth Parris and 11-year-old Abigail Williams scream blasphemies, fall into trance-like states, and shake with convulsive seizures. Weeks later, physicians state that the girls are under the influence of Satan. They accuse three women of afflicting them. Before the Salem Witch Trials are stopped, 20 innocent people will be executed.
*January 14, 1697. The Massachusetts General Court declares a Day of Contrition to repent for the hysteria-driven destruction of 1692.
*August 23, 1927. The Commonwealth of Massachusetts executes Nicola Sacco and Bartolomeo Vanzetti.
May 26, 1965. Bernard Baran is born in Pittsfield, Massachusetts.
July 4, 1976. At age 15, the future Julie Hanes leaves home after her mother throws a knife at her, beats her, and breaks several of her ribs at a family picnic.
*1978. A born-again former Miss America runner-up, Anita Bryant, begins her “Save Our Children” campaign, alleging that homosexuals are dangerous child predators.
*1978. The Revere Sex Panic. Authorities discover that two teenage males have been having sex with men for money at a Revere, Massachusetts apartment. The media creates massive hysteria, inciting rumors of international child-sex rings. Ann Burgess, a psychiatric nurse, elaborates the totally unfounded idea that gay men are organizing into international “sex rings” to fly boys around the world, distribute them among networks of men, and make child pornography. Her student, Susan Kelley, went on to promulgate the belief that the “sex rings” had extended to Satanist groups operating in daycare centers.
May 13, 1979. Virginia Stone is born to Marsha Stone (Lopez).
(The six accusers in the Baran case are Virginia Stone, Richard Thompson, John Larson, Peter Hanes, Gina Smith, and Annie Brown.)
June 30, 1980. Richard Thompson is born.
July 6, 1980. John Larson is born.
November 6, 1980. Peter Hanes is born to James Hanes and 19-year-old Julie Hanes. (The only one of the six children that Baran had much contact with was Peter Hanes, the first and most important accuser. Thus Peter’s history before the 10/84 accusation is very important.) James leaves soon after Peter is born, and his cousin, David, moves in with Julie and Peter. David and Julie are both addicted to drugs and prone to violence.
January, 1981. The Haneses are involved in a drug bust.
April, 1981. Julie Hanes enters the Jones Program — an inpatient drug rehab.
June, 1981. Bernard Baran, having just turned 16, drops out of school and enrolls in the CETA program.
June 4, 1981. Gina Smith is born to Judith and David Smith.
August 14, 1981. Annie Brown is born.
July, 1982. Julie Hanes sees therapist Dennis Pollock at Berkshire Medical Center. She tells him she refuses hospitalization because there is no one to take care of Peter and she would miss out on cocaine that night at home.
August 2, 1982. Julie Hanes checks out of Jones rehab after a stay of only two days. She obtains a prescription for Compazine and overdoses on it.
August 4, 1982. Julie Hanes goes to emergency room because of the amount of cocaine she did the night before.
December, 1982. Because of his violent and dysfunctional home life, Peter Hanes is placed at a Pittsfield daycare, the West Side Early Childhood Development Center (ECDC), even though he is below the usual age limit. He is assigned to room 2-A.
January, 1983. Julie Hanes tells people at ECDC that Peter was very active and gave her a hard time at home.
January 7, 1983. CETA assigns Baran to ECDC. Baran is assigned to room 1. Gina Smith begins attending ECDC at this time, and is assigned to room 2-A.
January 10, 1983. Virginia Stone enrolls at ECDC. Her mother, Marsha Stone Lopez, is a friend and neighbor of the Haneses, a prostitute, and a fellow hard-drug user. Virginia is assigned to room 5. At no point would she ever be in Baran’s classroom.
January 21, 1983. John Larson begins to attend ECDC. He is assigned to room 6.
February, 1983. Peter Hanes is placed briefly in foster care.
February 11, 1983. Baran is assigned to room 3.
March 29, 1983. During a fight with Julie, David Hanes allegedly stabs himself in his own heart. He has to have open-heart surgery and is hospitalized for a long time. (Another of Julie’s boyfriends, John Wilson, would later also allegedly stab himself in the chest during a fight with Julie. See January 7, 1988)
April 6, 1983. Dr. Jean Sheeley, Julie Hanes’ pediatrician, accuses Julie of stealing syringes during Julie’s precious visits. In her notes Sheely writes: “Confronted Mom re syringes missing from my exam room after a previous visit. She admitted taking 2, then none on further visits on friends’ advice. Said she was injecting Cocaine, Talwin & Percodan until 5 mos. pregnant. (She’s due next month.) Her boyfriend is heavier drug user who stabbed himself in heart last week — in BMC & “not returning to her home.” Julie attended Center on Alc. Abuse (”Counselor = Kate”) until 2 mos. Ago & quit. Says Valerie Gill from MSPCC comes out weekly — (XXX-XXXX) — will call.”
April, 1983. Julie Hanes tells her gynecologist, Dr. Frederick Levinson, that she is a drug addict and wants to stop using drugs. Julie tells the ECDC staff that Peter is active, aggressive, and defiant.
May, 1983. Julie is told that Peter completely ignores his teachers whenever they ask him to do something.
May 12, 1983. A son, George, is born to David and Julie Hanes.
May 13, 1983. Peter Hanes comes to school with bruises.
July 11, 1983. Julie Hanes sees therapist Joie Janssen at Berkshire Medical Center. She tells Janssen that she’s been taking Valium.
July 22, 1983. Peter and George Hanes are placed for a while in foster care again.
July 24, 1983. Baran is assigned to room 5.
August 1, 1983. Baran is directly hired by ECDC as a Teacher’s Aide. He is reassigned to room 1. Gina Smith is assigned to room 2-B.
*August 12, 1983. An alcoholic woman (later diagnosed as paranoid schizophrenic) named Judy Johnson calls the Los Angeles police and accuses Ray Buckey — a 25-year-old worker at the McMartin preschool in Manhattan Beach, California — of sodomizing her two-year-old pre-verbal son.
September, 1983. Julie Hanes tells ECDC that the disruption in her home is causing Peter anxiety.
September 6, 1983. Richard Thompson begins to attend ECDC. He is assigned to room 1. (Baran’s room.)
*September 7, 1983. Although there is no physical evidence or corroboration from others at the school, Ray Buckey is arrested. Because of lack of evidence, the DA decides not to prosecute. But the Manhattan Beach Police Chief sends out a letter to 200 past and present McMartin parents, stating that Ray may have forced children to engage in oral sex, fondling of genitals, buttocks or chest area, and sodomy. Panic ensues. A local TV station suggests that the school is linked to child-pornography rings and various Los Angeles sex industries. The panic spreads nationwide.
September 21, 1983. Peter Hanes is assigned to room 1 (Baran’s room.)
November 1, 1983. Richard Thompson leaves room 1 (Baran’s room) and is reassigned to room 6.
December, 1983. Peter Hanes again taken out of the Hanes home and placed in foster care with the Johnsons.
January 18, 1984. ECDC calls Julie Hanes in for a conference because of their concern about Peter’s behavior.
February, 1984. Stephanie Adornetto, Peter’s teacher, calls Julie up because Peter is having a difficult time.
*Spring, 1984. Hundreds of McMartin children have been interviewed by Children’s Institute International. The chief investigator is a woman named Kee McFarlane. 360 kids are diagnosed as having been sexually abused. A doctor examines 150 children. In spite of lack of physical evidence, he concludes that 120 of them have been sexually abused.
March, 1984. Julie Hanes is told by his teachers that Peter often requires attention from his teacher, pushes other children out of his play area, won’t share, swears and calls names, has mood swings, is upset and aggressive.
*March, 1984. 208 counts of child abuse involving 40 children are laid against Ray Buckey, the owners of the school (Ray’s mother, Peggy Buckey, and his grandmother, Virginia McMartin), and four teachers. The media-inflamed national hysteria would soon lead to many copycat cases.
*April, 1984. Gerald Amirault — whose mother Violet owns and operates the Fells Acres Day School in Malden, Massachusetts — changes into spare clothes a four-year-old who wet himself during a nap. Gerald sends the wet clothes home with the boy in a plastic bag and with a note. The mother becomes alarmed and begins quizzing the boy about sexual abuse.
April, 1984. Gina Smith is assigned to room 1 (Baran’s room). Peter Hanes is still in this room. Julie Hanes is once more informed of Peter’s extreme anti-social behavior.
April 30, 1984. Peter Hanes bites another child. He is placed in a time-out chair, where he screams and tries to trip everybody who walks by him.
May, 1984. John Larson reassigned to room 4. ECDC again informs Julie Hanes about Peter’s behavior. The Department of Social Services ( DSS) reassesses Julie’s ability to take care of Peter.
May 15, 1984. Julie Hanes goes to the school and observes Peter’s behavior. Baran is placed on probation for frequently coming in late.
May 16, 1984. Peter Hanes defecates in the ECDC play patch.
May 20, 1984. Peter sees David Hanes for the first time in over a year.
June, 1984. David Hanes moves back in with Julie and the children.
June 12, 1984. ECDC is ready to expel Peter Hanes. But they decide to give him another chance and reassign him to room 4. Gina Smith remains in room 1 (Baran’s room). Virginia Stone begins to attend another ECDC school, Apple Tree. Peter’s behavior is briefly better, but he soon starts to swear again and smash his toys.
June 18, 1984. Richard Thompson reassigned to room 4.
June 20, 1984. Pat Coulter, Peter’s new teacher, reports that Peter has come to school with bruises.
June 21, 1984. Julie Hanes tells a DSS worker that she is strung out and that it doesn’t pay to be straight.
July 2, 1984. Baran begins splitting his time between room 1 and room 4. He was in room 1 (with Gina Smith) from 8:30-10:15 a.m., took a break, and then went to room 4 (with Peter Hanes, John Larson, and Richard Thompson).
July 2, 1984. Marcia Lopez checks into the Black Horse Motel in Springfield, Massachusetts, with her daughter, Virginia Stone, her two-year-old son, and her boyfriend, “Chino.” They were planning to see the fireworks in Springfield on July 4. At 7 p.m., Marcia goes out to get Chinese food. Virginia later tells her mother that while she was out, “Chino” undressed Virginia in the bathroom, pur his finger on Virginia’s “pussy,” and put his penis in her mouth,
July 19, 1984. Baran is commended for his improvement in arriving at work on time.
July 25, 1984. Gina Smith leaves room 1 and ECDC. Annie Brown starts to attend ECDC and is assigned to room 1, Baran’s first room.
August, 1984. Julie Hanes tries to get into drug rehab one more time.
September 1, 1984. Richard Thompson reassigned to room 5. Hanes and Larson remain in room 4, Baran’s second room.
*September 2, 1984. After five months of questioning, the boy who Gerald Amirault changed tells his mother that everyday at preschool, Gerald blindfolded him, took him to a “secret room” with a bed and golden trophies, and performed various sex acts. The mother calls a Department of Social Services hotline and accuses Gerald of sexual abuse.
*September 4, 1984. Malden police go to the school and seize class lists.
*September 5, 1984. The Malden police arrest Gerald Amirault. Police and social workers summon parents to a meeting at the Malden police station. Panic begins.
September, 1984 (early). David Hanes calls ECDC and complains that Bernard Baran is a homosexual and shouldn’t be allowed to work with kids. (For information about this incident and about the Hanes’ general attitude towards gay men — in Julie’s sworn deposition — click here. David eventually came to doubt Baran’s guilt. Click here for an excerpt of his deposition. The two depositions tell us a great deal about the moral character — or lack thereof — of the couple who destroyed Bernard Baran’s life.)
September 13, 1984. Janie Trumpy becomes Executive Director of ECDC. Learning of David Hanes’ complaint, she confronts Baran about his homosexuality. Baran insists that his sexual orientation has no effect on his job performance. (Trumpy would, under oath, deny knowledge of Hanes’ complaint at trial. The record of the complaint was apparently intentionally destroyed.)
September 25, 1984. Richard Thompson leaves ECDC.
October 1, 1984. The Haneses remove Peter from ECDC.
Richard Thompson was in room 1 with Baran from 9/1/83-11/1/83 and in room 4 with Baran from 7/2/84-9/1/84. Peter Hanes was in room 1 with Baran from 9/21/83-6/12/84 and in room 4 with Baran from 7/2/84-10/1/84. Gina Smith was in room 1 with Baran from 4/84-7/25/84. John Larson was in room 4 with Baran from 7/2/84-10/5/84. Annie Brown was in room 1 with Baran from 7/25/84-10/5/84. Virginia Stone was never in either of Baran’s rooms. The only one of the six accusers that Baran ever had much to do with was Peter Hanes.
October 4, 1984. David Hanes calls Sergeant Henault, his drug handler at the Pittsfield Police Station. (Both Haneses were drug informants.) The police try to return the call several times that evening, but a babysitter tells them that Julie and David have gone to the movies.
October 5, 1984. Hanes calls the police again, claiming that Peter had come home from school the day before with blood on his penis. The Haneses claim they discovered the injury the night before when they gave him a bath. (Later, during the civil suit, Julie Hanes would admit that they had seen no blood.) Julie Hanes tells the police that Peter had no behavioral problems until six months ago. The Haneses take Peter to their pediatrician, Dr. Jean Sheeley. (Julie used to steal syringes from her office.) Sheeley sees nothing wrong with Peter’s penis. She does a urinalysis and eliminates the possibility of internal bleeding. But she also tests Peter for gonorrhea.
Detectives Collias and Beals go to ECDC in the afternoon. Janie Trumpy checks Peter Hanes’ file and tells them about David Hanes’ complaint about Baran’s homosexuality. Word spreads among the staff that Baran is suspected of raping Peter Hanes.
Carol Bixby, the ECDC Center Coordinator, calls her friend Judith Smith, mother of Gina Smith. Judith begins interrogating Gina, specifically about Bernie, and about whether he had ever “touched her in a funny way.” Gina says that she and Bernie played the “Bird’s Nest Game,” sometimes in her hair, sometimes in Bernie’s hair. Judith asks Gina if Bernie ever touched her fanny, and Gina allegedly says that he touched her “privies” sometimes. Smith calls Jane Trumpy and also Police Captain Dermody at his home. (Smith is a friend of Dermody’s wife.)
Detectives Winpenney and Eaton, accompanied by Brian Cummings of DSS, go to the Smith home at 10:50 p.m. Upon questioning, Gina again says that Bernie touched her privies. And she again mentions the Bird’s Nest Game. She says that Bernie never touched her fanny. Judith takes Gina out in the hallway, and when she returns, she informs them of what Gina had disclosed.
Gina says that Baran one day had found a bird’s nest, with a dead baby bird still partly in its shell. Baran allegedly said that if the “make believe” or “pretend” police found out, they would come and take the bird away, and that would upset the bird’s mother. (Gina was a most imaginative child, and pretend was one of her favorite words. Baran never found a dead baby bird while at ECDC, although the janitor once found a dead bird in a bathroom and many of the kids knew about that. Baran did sometimes read to the children a Dr. Seuss book about a bird who goes looking for his mother. The book has an illustration of a policeman in it. Stories about mother separation can cause anxiety in a three-year-old. Gina would go on to create — with much help from the “investigating” adults — the most elaborate and bizarre of the tales of abuse.)
Smith also says that Gina talked about the “Touch Game.” Baran allegedly put his finger in Gina’s ears, eyes, nose, fanny, and everything else. But Gina was only allowed to touch Baran’s neck. Smith asks Gina if Baran had ever wanted Gina to touch his penis, and (according to Smith’s police statement on 10/11/84.) “Gina said yes and pointed to her inside of her foot.” Smith takes this as confirmation.
That same evening, a social worker contacts Detective Eaton. Eaton is informed that the Haneses are being investigated for possible child neglect and that the Massachusetts Society for the Prevention of Cruelty to Children (MSPCC) was already involved with the Haneses.
October 6, 1984. Bernard Baran is arrested on two counts of indecent assault and battery of a child. Baran denies everything, answers all questions freely, and waives his rights because he has nothing to hide. That same day, the Haneses bring Peter into the police station. After a tour of the police station, Detective Beals questions Peter while Peter sits on Beals’ lap. Peter says that Bernie made his pee pee hurt, made his pee pee feel good, and made his pee pee go away. At one point, Peter says that Bernie made it bleed. When asked if Bernie asked Peter to touch him, “he became offensive to the question and became angry and told us no in no uncertain terms.”
That evening, the Smiths take Gina first to the police station, where detective Eaton gives her a badge, and then to the DA’s office. Jane Satullo, a psychotherapist from the Rape Crisis Center, interviews Gina and the interview is videotaped. Satullo uses anatomically correct dolls. I haven’t seen the video or the transcript and thus have to rely on Gina’s mother obviously highly biased account. According to this, Gina puts her finger in the doll’s openings (vagina and rectum), supposedly showing what Baran had done to Gina. When asked about the Bird’s Nest game, Gina wants to phone Bernie to make sure it was all right to tell about it. After they only allow Gina to make pretend phone calls, Gina says she has to go to the bathroom two times, and taping ends for the day.
October 7, 1984. Baran’s mother bails him out of jail. Peter Hanes is interviewed by Ms. Satullo. I haven’t yet seen the video of the interview or the transcript, and the only account I have of what happened is Detective Peter McGuire’s report. In the case of another child, the police description of the interview was radically different than what the transcript showed actually occurred. So we should be cautious about giving too much credibility to McGuire’s account. But according to McGuire, Satullo gives Peter male and female dolls. After Peter undresses the male doll, Satullo asks him what the penis was, and Peter replies “his bone.” When asked if someone touched his pee pee, Peter replies Bernie. When asked how Bernie touched him, Peter grabs his crotch. But, according to the police observer, Peter doesn’t much want to talk about his pee pee or Bernie. “He seemed to be trying to ignore the subject,” stated the report. Peter goes to the bathroom half an hour into the interview. Another half an hour later, Satullo terminates the taping.
October 8, 1984. ECDC officials, police, and social workers prepare for meeting with parents. Judith Smith takes Gina to see Dr. Sheeley. Gina had a checkup in July, right after she was taken out of ECDC and no problems had then been found. This time Sheeley does a near microscopic examination of Gina’s rectum and vagina. She finds ruptures of Gina’s hymen — two small posterior tears and one large (1-2 millimeters, or about 1/20th of an inch) well-healed anterior tear. Sheeley believes that these tears, especially the larger one, are consistent with full penetration by an adult penis or several adult fingers. (These irregularities, or “notches,” are now known to occur in 50 to 60 percent of non-abused girls.) Sheeley also tests Gina for gonorrhea, but the tests would come back negative.
October 9, 1984. The Berkshire Eagle announces that Bernard Baran has been arrested for sexually assaulting two three-year-olds. The article lists a number for parents to call. Steven Thompson, Richard’s father, calls the number and said that Richard “had been acting strange in the past and at one time mentioned that Bernie touched him in the poo-poo.” Baran is arraigned and pleads not guilty. DA Anthony Ruberto calls a press conference.
October 10, 1984. Dr. Sheeley gets the results of Peter Hanes’ gonorrhea test. The rectal result is negative and the throat culture is positive. (The test used at the time is now know to be highly unreliable, especially for throat cultures of children, because a bacteria common in children caused false positives in more than a third of the cases tested. A report to this effect was published in 1988 by W. Whittington et al of the Center for Disease Control.) Baran is arrested a second time and taken to Berkshire Medical Center to be tested for gonorrhea. Swabs are taken from his throat, penis, and rectum. The tests would all come back negative.
Julie Hanes calls DSS and says that David has just beaten her. She asks to have the children placed in foster care. She also makes an appointment to see therapist Anna Pollock. Julie cancels three appointments and finally sees Pollock in November.
The Berkshire Eagle reports that Baran faces an additional charge or rape, based on Sheeley’s examination of Gina Smith. Baran is assigned a public defender. (Baran’s mother later hires a $500-retainer lawyer, Leonard Conway, to represent Baran. Conway does a reprehensible job.) The article cites Baran’s lack of any criminal record. DA Ruberto, at his televised press conference, says that all 160 children attending ECDC will be screened to identify “potential victims.”
October 11, 1984. Judith Smith makes a statement to the Pittsfield police. Jane Satullo holds the first of her puppet shows for ECDC children. Immediately after seeing the show, Richard Thompson accuses Baran.
October 12, 1984. David Hanes calls the Berkshire Eagle and tells them that he and Julie want to be interviewed. They are interviewed that same day.
The Berkshire Eagle reports that Baran pleads innocent to a fourth rape charge. The Eagle falsely reports that Gina Smith has gonorrhea. Bail is set at $15,000. (The DA had asked for $25,000). Police and social workers are interviewing more parents. On October 11, parents received hand-delivered letters from ECDC from Executive Director Jane Trumpy telling that a child had been treated for gonorrhea, and giving them two hotline numbers to call. Assigned to the case are Captain William Dermody, Sergeant Frank Polidoro, Detectives Peter McGuire and Joseph Collias, and Trooper Robert Scott. All 85 children at Baran’s facility (ECDC operated two schools) will be interrogated and tactics will include a puppet show. One parent quoted, “‘wonders how and where this could have taken place’ with so many teachers and parents around.” (A good question, which seems not to have occurred to the “investigators.”) Pittsfield mayor Charles L. Smith is quoted, “I’d certainly be angry if I was one of the parents.” Trumpy announced meetings with parents, beginning on Monday, October 15.
October 13, 1984. The results of Baran’s gonorrhea test come back. All three samples test negative.
Annie Brown’s mother, Lee Ann Bailey, takes her to be examined at the emergency room of the Berkshire Medical Center. No problems are found. The mother claims that Annie said, “Bernie touched my tuku [vagina].”
Virginia Stone’s mother, Marsha, calls the police to accuse Baran. Detective McGuire picks up Virginia and her mother and takes her to be examined by Dr. Sheeley. Then they go to the police station, where the mother makes a statement and arrangements are made for Virginia to be interviewed. Virginia alleges that Bernie had touched her and put his penis in her mouth. She also alleges that her mother’s boyfriend, “Chino,” did the same thing to her. (See entry for July 2, 1984.)
Detective Peter McGuire files a report on the “Chino” incident with Michael Harrigan of DSS.
October 13, 1984.The Eagle prints Lynne A. Daley’s interview with the Haneses, who are identified by full name, as is Peter. (Parents in similar situations almost invariably insist on protecting the child’s anonymity and privacy.)
The article states that “The Haneses, occasionally leaning on each other for support during an interview in their sunny living room yesterday, expressed both rage that their son could have been molested and regret that they didn’t do something sooner.”
Julie Hanes claims that Peter first complained about being touched, “three months ago.” The Haneses criticized ECDC for failing to recognize the problem. Julie claims that changing Peter’s room assignment was her idea. She mentions seeing a program on public television, narrated by Mike Farrell, where it was stated that loss of appetite, personality change, or trouble sleeping could be signs of sexual abuse. (It is now known that there is no symptom list indicative of sexual abuse.) The Haneses claim that Peter and his friends “screamed and cried” when Baran molested them, but that the cries went unheeded. Julie Hanes — identified as a student majoring in Human Services at Berkshire Community College, says, “I’m dealing with it now. I’ve cried a thousand tears. Now I have more hate in me.” David Hanes says, “I just get so keyed up sometimes I want to blow up. I want to go out into the street and scream and cry.”
The article concludes with these three paragraphs:
Peter’s reaction is even more heart-wrenching, his mother said. “He asks, ’shouldn’t I go to jail too?’ I think he thinks that it’s all his fault. I really do.”
To soothe her son, she said, “I told him how important he is, how he saved all his little buddies. That’s what he calls them, his little buddies.”
Julie Hanes shook her head. “I wish I had acted on my suspicions three months ago. I could have saved three months of misery. He was in great fear up there.”
October 15, 1984. Trooper Robert Scott videotapes an interview with Virginia Stone. The mother is present in the interview room. I haven’t seen the videotape or transcript, and thus must rely on Scott’s own account of what happened. If the police description of another interview is anything to go by, Scott’s account may well be very incomplete and misleading. But according to Scott, when asked if Bernie played games, Virginia says, “Yes, hide and seek and puzzles.” Trooper Scott asks her if she liked Bernie and she says, “No.” When asked why, she says, “Bernie is a bad boy.” She is also asked, “While you were at ECDC, did anyone make you do something you did not want to do?” and she replies, “Bernie.” Virginia then says she does not want to talk about it because she did not want to think about it. Scott then gets out the anatomically correct dolls and says the boy doll is Bernie and the girl doll is Virginia. Scott takes the girl doll’s clothes off and shows Virginia the vagina. Then he asks her to show him where Bernie had done bad things to her. She points to the vagina and says, “he touched me here.” She also says that Bernie had “put his dinky in her mouth.” Virginia is asked if Bernie told her not to tell anyone, she says “yes.” Asked what he said he would do if she told, she replies, “He would kill my mother.” (This is not the sort of threat actual pedophiles make. Real pedophiles generally befriend the child and sometimes tell them that if the child tells, bad things will happen to the pedophile. After Baran was in prison, Virginia would tell a therapist that nothing had really happened but that her mother had told her to say that it had so that they could get a lot of money. See 10/1/85.)
Trooper Scott was never informed of the “Chino” incident. He learned of it late in 2004.
October 15, 1984.Police, social workers, and ECDC staff begin meeting with parents.
Michael Harrigan of DSS interviews Annie Brown at her home. He says that Annie claims that “Bernie touched her tuku.”
Mid-October, 1984. Prosecutors offer Baran a 5-year sentence in exchange for a guilty plea. Baran refuses.
October 16, 1984. Julie Hanes is interviewed by another newspaper, the Transcript. She says, “I have a lot of hate in me towards anyone in the school. I can’t possibly see how they would not have noticed something was happening.” She also says, “I don’t even know if I can cry anymore. I used to be happy-go-lucky. When this happened it changed my whole outlook on life.”
October 16, 1984. Michael Harrington interviews Marcia Lopez about the “Chino” incident. Harrington substantiates the sexual abuse. He reports the inciden to the District Attorney’s office. But “Chino” is never charged or even investigated. And the DA’s office keeps the entire “Chino” incident from Baran’s lawyers. His lawyers will not discuss the documentation of the abuse until late in 2004 — over 20 years later.
October 18, 1984. Pat Polumbo of DSS videotapes an interview with Richard Thompson. Polumbo is untrained and unqualified. She will receive her first professional license, as a Marriage and Family Therapist, on 6/4/93. She won’t become a licensed social worker until 6/13/97. Polumbo’s questioning is suggestive in the extreme. No sane person could conclude from the transcript that Baran had done anything improper to Thompson. Detective Joe Collias watches the interview on a TV monitor. His account of the interview bears little relationship to wat actually happened.
Gina Smith begins seeing Dr. Suzanne King, a child psychiatrist. King, a believer in repressed memory, would see Gina once a week. King believes that children communicated through play and she interprets Gina’s play as well as her dreams. At trial, King would reveal that she didn’t believe that children were suggestible, that bedwetting was a symptom of sexual abuse, and that a parent’s anxiety couldn’t be transferred to a child. She also admitted that interpretation was a subjective, not an objective, process and that she’d based her interpretations on the assumption that Gina had been abused.
The sexual abuse of Virginia Stone by “Chino” is substantiated by social worker Michael Harrington.
October 19, 1984. Detective McGuire interviews Annie Brown at home. Again, Annie says, “Bernie touched my tuku.” She also says, “Shanya seen him do it.” First Annie says it happened, “upstairs with the toys” and then “downstairs.” She was then asked if Bernie told her not to tell anyone. She replies, “He told me not to tell my mommy. I can tell my mommy.” Annie is told to show him, using her Cabbage Patch doll, Jodie. She puts her finger in the area of the doll’s vagina and says, “Bernie touched Jodie tuku right there.” The mother agrees to a videotape interview.
Mid-October. 1984. Julie and David Hanes meet with attorney Joseph Vosit to discuss suing ECDC.
October 21, 1984. Julie Hanes throws out David, has him arrested on assault-and-battery charges, and gets a restraining order against him.
October 24, 1984. DSS removes the Hanes children from Julie’s home and places them with foster parents, the Murphys (an alias). John Wilson soon will move in with Julie.
October 25, 1984. John Larson’s mother, Debra Taikowski, gives a statement to the Pittsfield police. Debra had gone to the ECDC meeting, where she was told to look out for certain signs: (Again, no symptom list is indicative of abuse.) She began interrogating John. Sometimes he would talk, and sometimes he wouldn’t. Finally, John says that Bernie touched him on his penis and on his bottom. She makes arrangements to put John on tape.
November 6, 1984. The Eagle reports a fire, apparently deliberately set, at ECDC on Sunday, November 4. Gasoline was evidently splashed on the rear of the building. A 5-by-10 foot exterior section of the North wall was burned, but the flames were put out before they had burned through the wall.
November 7, 1984. Baran is indicted on five counts of rape and five counts of indecent assault and battery. (Richard Thompson was not included in the indictment, but will be added later.)
The Eagle runs a major story about venereal disease in children, with a picture of Dr. Jean Sheeley, a major witness in the Baran case.
November 9, 1984. Baran is arraigned and pleads not guilty on all counts.
November 14, 1984. The Berkshire Eagle announces that the county commissioners scheduled a November 27 meeting on child abuse with state and local agencies concerned with child care. Referring to sexual abuse at day cares, Commissioner John R. Dean, Jr., says “the thing that worries me is, how long has this been going on?”
A letter to the editor of the Eagle accuses the paper of convicting Baran before he goes to trial. It also contrasts the coverage of his case to their coverage of a Pittsfield police officer who allegedly raped a 4-year-old child.
Mid-November, 1984. The two teachers under whom Baran worked — Stephanie Adornetto and Eileen Ferry — are fired by ECDC.
November 16, 1984. The Eagle announces that the Adams-Chesire Regional School District will be showing film strips to elementary school children to teach them how to react to sexual abuse.
November 17, 1984. The Eagle reports that Mayor Charles L. Smith has called a meeting for November 21 “to compile a collective report assessing responsibility for conditions at the Early Childhood Development Center where a former aide has been charged with child molesting.”
November 22, 1984. The Eagle announces a press conference called by Mayor Charles Smith for the following week to discuss the 11/21 meeting with representatives of DSS, the area Office for Children, and ECDC.
November 28, 1984. An Eagle article says “Representatives of state and local agencies concerned with child abuse suggested yesterday that the county government provide funding for a community education project.”
December 2, 1984. The Sunday Berkshire Sampler runs in its magazine section a major article called “The Secret Crime.” It’s fairly typical of the press in the days of McMartin, containing much of what we now know to be dangerous and unfounded misinformation. It claims, for example, that the molester has usually been molested himself. The article flatly states, “All people dealing with child sexual abuse agree that the children do not lie, that is if then say someone did something to them, they did.” Eileen McKnight, of the Pittsfield Rape Crisis Center, is quoted saying, “I have never had a false case with a child. Never.” Assistant DA Elizabeth Keegan chimes in, “Children just do not lie about it.” (The relevant research, of course, hadn’t been done by 1984. The work of Stephen Ceci, Maggie Bruck, and other psychologists have since proven these beliefs false.)
December, 1984. Judith Smith sends Bernard Baran a Christmas card in jail.
January 3, 1985. Dan Ford sends a letter to Jeffrey Cook of the law firm of Cain, Hibbard. Above the salutation it reads, “Re: Commonwealth vs. Bernard F. Baran, Jr.” The text is: “Dear Jeffrey: At your request, I am enclosing herewith a copy of the Search Warrant and Affidavit in the above-referenced matter.” Cain, Hibbard was preparing a lawsuit on behalf of Virginia Stone. Ford himself would go to work for this law firm after leaving the DA’s office.
January 13, 1985. George and Peter Hanes are still living with the Murphys but spend weekends with Julie Hanes and John Wilson. After a weekend visit, Peter makes disclosures that convince Mrs. Murphy that John Wilson has been sexually abusing Peter.
*January 15, 1985. The Berkshire Eagle runs a UPI report from Boston stating, “Reported cases of sexual abuse among children in Massachusetts have risen sharply.” A year-old mandatory-reporting statute has required DSS to report child-abuse cases to District Attorneys. 808 cases were reported, 663 of them said to be raped, and of these 163 were between 3 and 6 years old. State Representative Joseph DeNucci is quoted, “the happy note among all the sadness is that law enforcement people and social workers are cooperating.” Kevin Burke, president of the Massachusetts District Attorneys Association, “said the new law has made social workers and prosecutors ‘allies.’”
January 17, 1985. Mrs. Murphy reports her allegations. DSS assigns William Baugham to investigate Peter’s accusation of John Wilson.
January 18, 1985. Baugham goes to the Murphy house at 9 a.m. and interrogates Peter using anatomically correct dolls and (most probably) leading questions. Peter alleges that John touches him, that his mother knows and was angry, but that she told Peter to keep it a secret. Peter shows how John washes his penis.
At two, Baugham interviews Julie Hanes at the DSS office. Julie claims that Peter has only seen John four times. Julie claims “I’ve never had a party at my house,” and stares at the floor when asked about why Peter talks about beer at the house. When told about Peter’s accusations, Julie doesn’t respond and also stares at the floor.
At four, Julie returns with Wilson. Wilson says he’s seen Peter “four or five times since the E.C.D.C. thing” and “maybe thirty times over the past two or three years.” When told that Julie said that John had only seen Peter four times, John responds, “Why do you have to be such a prick?” Later Wilson says, “If this ever makes the newspapers, there’s going to be one sorry son of a bitch around here.”
At six, Baugham calls Mrs. Murphy to tell her that Peter’s weekend visitation has been canceled and advises Murphy not to get into any arguments with Julie or Wilson. Murphy tells Baugham that Peter has disclosed that Wilson puts his penis in Peter’s mouth.
Judge William Simons holds a hearing to see if the children are competent to testify. When the judge asks Gina Smith whether it’s a good or bad thing to tell the truth, she responds, “Bernie touched me.” (She’d obviously been rehearsed.) When asked what happens if you say something that’s not true, Gina says, “I don’t know.” When asked if she would tell the truth if she knew the answer, she shakes her head no. Finally, he asks, “Do you think a good girl would say something that isn’t true?” When Gina again shakes her head no, Simons decides she’s competent to testify. Annie Brown says that it’s a good thing to tell the truth and that it’s a good thing not to tell the truth. Simons, a pipe smoker, tries asking Annie about his pipes. About one pipe (brown) Annie says it would be true if he said it was brown and it would be true if he said it was yellow. He shows her a yellow-and-white pipe and asks, “What if I told you that the whole pipe was one color and it was black, would that be true?” Annie says , “Yeh.” Simons finds Annie competent. Peter Hanes is totally out of control. He runs around the room, climbs into a window and starts playing with the window-shade cord until it snaps up. He grabs the judge’s stapler and begins playing with it. He refuses to tell the judge his age. He climbs up somewhere (perhaps back in the window, it’s unclear from the transcript) and refuses to come down. He tells Simons that Simons is not a real judge, and Simons puts on his robes to try to satisfy him. Peter is not satisfied. Peter tries to get Simons to put on his coat, but Simons refuses. Peter climbs back up into the window and jumps down repeatedly. Nevertheless, Simons also finds Peter competent to testify. The other three children are more cooperative, and they’re found competent as well.
January 21, 1985. Baugham returns to the Murphy home at 9 a.m. and again interviews Peter. Baugham writes that Peter says that John puts his penis in Peter’s mouth and ejaculates in Peter’s mouth. Peter continues to accuse Baran, but claims that Wilson molested him before Baran molested him. At 2:00 p.m., Baugham writes a report substantiating the allegation by Peter against Wilson. By law, DSS must report the alleged abuse to the police and to the DA’s office. They do so — nine days later, the day Baran is convicted.
January 21-22, 1985. Jury selection for the Baran trial.
January 22, 1985. Carolyn Burns, DSS Area Director, concurs with Baugham’s substantiation of sexual abuse of Peter Hanes by John Wilson.
January 22, 1985. The night before the trial, Leonard Conway finally asks to see the videotapes of the child interviews. He is given the edited tape of one boy and the edited compilation tape that was shown to the Grand Jury. This evidently satisfied the grossly incompetent Conway.
January 23, 1985. Baran trial begins. Before trial, Dan Ford repeats the offer of a 5-year sentence in exchange for a guilty plea. Baran again refuses. County Surveyor Eugene Galvagni and police photographer James D. Winn testify about the school’s physical layout. Teachers Stephanie Adornetto, Veronica Eileen Ferry, and Patricia Coulter also testify. None of them testify to improper or suspicious behavior on Baran’s part.
*The Grand Jury indicts Gerald, Cheryl Amirault LeFave (Gerald’s sister), and Violet on 18 counts of abusing 8 children. Two additional children are later added to the indictments. The investigation continues.
January 24, 1985. The Baran trial continues. Teacher Mary Morin testifies. (Testimony missing from my copy of the transcript.) Janie Trumpy testifies about Baran’s schedule, and which children were in which room when. (The jury of course would have retained nothing from her confusing testimony.)
Peter Hanes, when brought into the courtroom, breaks loose, runs over to Baran (his alleged tormentor), and says, “Hi, Bornie!” Prosecutor Dan Ford drags him away, saying, “I know you don’t like Bernie.” Peter responds, “I don’t like you” and adds some choice obscenities. The children all testify seated on the floor in front of the lawyers’ table. Baran sits behind the lawyers, so he can’t see the children and the children can’t seem him when they testify. (Baran’s constitutional confrontation rights were violated by this seating arrangement.) As a witness, Peter refuses to cooperate. He not only denies abuse, he denies even knowing Baran. Ford makes pathetic attempts — such as, “After you talk with us you can go back to MacDonald’s. Now show us where Bernie touched you, Peter.” Ford finally gives up, and Peter leaves without offering a word of testimony against Baran.
The next witness was Gina Smith. Gina had suffered repeated interrogations from her parents, police, social workers, members of the DA’s office (including Ford), and her psychiatrist, Suzanne King. Gina was the most imaginative of the children and her story had become the most elaborate. Supposedly, Baran had raped her in a bathroom adjacent to a busy classroom. (The bathroom doors were always kept open as a matter of school policy.) Gina’s vagina supposedly bled and Baran allegedly scraped the blood away with a pair of scissors. He then stabbed Gina in the foot, supposedly to cover up the fact that she’d been bleeding. (There is no record of Gina Smith ever suffering a foot injury while at ECDC.) Ford wasn’t terribly successful in getting Gina to relate this story. When asked if she bled, Gina says, “I forget it.” Ford then tells her that she bled and asks, “What did Bernie do when the blood came out?” When Ford asks Gina where this happened, she gives the wrong answer — “in my classroom.” Ford supplies the right answer — in the bathroom. Ford tries to elicit testimony that “pretend worms” came out of Baran’s penis. (During her many pre-trial interrogations, I suspect Gina first mentioned “pretend worms” in connection with the “pretend bird.”) When Gina says that nothing came out of Baran’s penis, Ford turns to Judith Smith and says, “Mommy, could you just tell Gina it’s okay to tell the truth?” Ford finally says, “Remember some pretend worms coming out?” and Gina nods yes. Ford also tries to get Gina to talk about The Bird’s Nest Game, but Gina won’t cooperate. Under cross-examination, Gina says that her classmate, Eric, tied her up with rope and that Eric was in the bathroom with Gina and Bernie. Under redirect examination, Gina says that Bernie cut her hair with the scissors.
Judith Smith relates the incidents of October 5, the videotaping on October 7, and the doctor’s visit on October 8. Smith, like all of the other parents, gives much hearsay testimony that goes far beyond just corroborating the testimony of the kids. She claims that pretend worms came out of Baran’s penis and all over Gina’s face and legs. She claims that Gina once came home from school with a cut on her foot and blamed the lack of a record on ECDC’s inefficiency. (ECDC records generally appear to have been quite complete.) Smith under cross-examination said she had no inkling of a problem before Carol Bixby’s call on October 5. Smith says that she believes Baran raped Gina, scraped blood from her vagina, and “then to cover it up stabbed her foot so there would be justifiable blood.” She says that Gina told her that Stephanie cleaned up the blood. Smith said that Gina said that first Stephanie, later Eileen, told Gina that if Gina told on Baran, then Gina couldn’t come back to school. (An interesting threat to use against a child who allegedly gets raped and stabbed at the school by one of the teachers.) Gina also claimed at different times that Stephanie or Eileen witnessed the rape.
Julie Hanes testifies. Conway (Baran’s lawyer) objects to the fact that her testimony will be hearsay (actually, perjury would be a more apt term), but the judge overrules. Julie claims that Peter’s penis bled in the bathtub and that Peter had said Bernie touched him. She claims she called the police. (It was David. This is also the first time Julie states that she discovered the bleeding while Peter was in the bathtub. No bathtub is mentioned in the early reports. Julie’s testimony occurs shortly after Peter’s accusation that Julie’s boyfriend, John Wilson, aexually abused Peter in the bathtub.) She also claimed that Peter sometimes came home with different underwear, no underwear or with his pants inside out. (Peter wet himself almost everyday.) She claims that she sent Peter to school with a change of clothes. (She was constantly asked to, but seldom complied.) Julie says that Peter only started to misbehave the previous summer. Under cross-examination, Julie insists that it was she, not David, who called the police. (Julie isn’t mentioned in the police reports of the calls.) She insists she sent dry clothes every day. She admits that David had talked about Baran’s homosexuality. She denies she had a 16-year-old named Peter living with her over the summer. At the sidebar, Conway tells the judge that he might be able to produce witnesses who overheard Julie accuse David of having gonorrhea during their final fight before she had him arrested. Ford forbids Conway to go near the gonorrhea question in his examination of Julie Hanes. When cross-examination resumes, Julie admits that she and David had arguments. But she (falsely) denies that Peter has been monitored by DSS.
January 25, 1985. Conway cross-examines Janie Trumpy. Trumpy denies that she told police that a complaint had been made against Baran at the beginning of the school year and denies knowing who made the complaint. She claims there was no written record of the complaint. (She thus contradicts the police report.) There was no record of Gina being injured with scissors. On 5/25/84, Gina was bruised while wrestling with another child.
In her Quarterly Summary, Julie Hanes’ therapist — Anna Pollock — writes about Peter’s accusation of Wilson: “…Peter has been taken to ‘mock hearings’ for about six weeks [my emphasis] at the court house to prepare him to testify at the ECDC sexual abuse trial. It is my hunch that this child is seriously confused about who has done what to whom…”.
Richard Thompson claims that Bernie touched him in the woods. (There are no woods near ECDC.) He says he’s never seen Baran’s “P.” Ford twice asked Richard if Bernie touched him anywhere and both times Richard shakes his head no. But Richard points to the genital area of the anatomically correct doll when Ford says, “Show us on the dolly where Bernie touched you.” When asked if Bernie ever played games with him, Richard says, “Ring around the rosy.” Ford asks if they played hide-and-seek, and Richard says he used to hide in the shed. (A storage shed that was kept locked and which was situated immediately adjacent to the playground.) Richard says Bernie found him in the shed but shakes his head no when Ford asks if Bernie ever touched him in the shed. Ford twice asks him if He ever saw Bernie with his pants down, and twice Richard shakes his head no. Ford, says: “You’re sure? Richard, let me ask you again: Did you ever see Bernie with his pants down?” Richard gives the right answer — he nods his head yes. The rest of Ford’s interrogation follows the same lines. Under cross-examination, Richard says that he talked with Dan Ford a lot of times, that he talked with the policeman a lot of times, and that he saw a puppet show. He says that he played with the anatomically correct dolls two times before. He said he talked to Jane (Jane Satullo, from the Rape Crisis Center) a lot of times. Conway asks if the stories he told Satullo and the police were real stories of make believe stories.” Richard responds, “Fake stories.”
John Larson also claims to have been touched in the non-existent woods. When asked by Ford if his pants were up or down, John replies, “Up — down I mean.” When asked if Baran’s pants were up or down, he says, “Down — up I mean.” He says that Richard was with them in the woods. Ford tries to get Richard to say that Richard saw something come out of Baran’s dinky, but Richard insists that nothing came out. Under very insistent questioning, John says that Baran touched him “up here” on Richard. (My guess is that Ford was pointing to the doll’s mouth.) Ford gets John to say that Baran told him a scary story about wolves and little boys. (Under cross-examination, this proves to be “The Three Little Pigs.”) John says they walked to the woods from the school and that it was “Way, far away.” They didn’t go on the bus. (There were no field trips to wooded areas while Richard and John were in Baran’s room.) He said they walked on the snow. (John and Richard were in Baran’s room from 7/2/84 to 9/1/84.) John says he’s talked to Ford and to his parents many times about this, and that he saw the puppet show. John says he sometimes makes up stories and tells them. He likes to tell scary stories.
Donna Thompson, Richard’s mother, says Richard started talking about what happened at ECDC “at the puppet show.” She also claimed that Richard sometimes came home with different underwear or the underwear inside out.” (This underwear claim was common in the 80s daycare cases. It was something of an urban legend.)
Timothy Larson, John’s father, says his son would take off his close to watch TV and play with himself a little while watching cartoons. John heard about Baran’s arrest through the news media and afterwards said things like Bernie peed in someone’s face and that Bernie had touched John on the weenie in the woods and in the shed. Under cross, Timothy says that his son never mentioned bus trips.
Detective Joseph Collias testifies that he’d taken Baran to Berkshire Medical Center for gonorrhea tests and that all three tests were negative.
Dr. Jeffrey Ross testifies about gonorrhea and says that gonorrhea occurs most frequently “in prostitutes and male homosexuals.”
Detective Bruce Eaton testifies about his visit to the Smith household on October 5. Under cross-examination, Eaton admits that when Gina said Bernie patted her, she didn’t refer to any specific areas. Gina had also said that she was only allowed to touch Baran’s neck. Eaton says that Judith Smith was very upset. Conway asks if her being upset had anything to do with Smith’s own past experiences, and Ford objects and is sustained. (According to Baran and his family, Smith claims to have been sexually abused as a child by an uncle.)
Janie Trumpy is recalled to be cross-examined about the fact that when teachers were out, substitutes took their place.
Jane Satullo, of the Rape Crisis Center, Satullo cites as her influences books by Nicholas Brown and Susan Savoy. (This would have been Nicholas Groth and Suzanne Sgroi, whose theories about child sexual abuse were taken seriously in the early 80s. Sgroi developed the child-sexual-abuse syndrome, very similar to Dr. Roland Summit’s child-sexual-abuse-accommodation syndrome. Sgroi and Groth wrote books together, and once co-edited a book with the previously mentioned Ann Burgess. Research has not validated their theories. During the 90s, Sgroi also pointed out that her theories were being misunderstood and misapplied, and she was even helpful to the attorneys working on Margaret Kelly Michaels‘ successful appeal.) Satullo interviewed several children and was the principle person putting on the puppet show. The puppet show used anatomically correct dolls. Satullo dismisses the notion that the puppet show could “plant an idea concerning abuse in a child’s mind.” Satullo cites a very long laundry list of symptoms indicative of sexual abuse. (Any child would have some of these symptoms. It is now known that no such list of indicative symptoms exists.) Satullo says, “If a child repeats a story and tells the same details again, it needs to be a true story.”
January 28, 1985. Jane Satullo is cross-examined. She admits that a certain amount of masturbation is normal in 3-5 year-old children. She concedes the effect or reinforcement. She says that Gina said nothing about scissors until several weeks after the first interview. Under redirect, Satullo says that Gina had forgotten what Baran had done, but then demonstrated when given an anatomically correct doll. Under recross, she explains away inconsistencies in the stories by saying that disclosure is a process and because of the “general interchange that adult roles play in a child’s life.” (So much for repeating the story with the same details.) Satullo also states, “there haven’t been any cases of young children falsely accusing somebody” and children are “no more susceptible than the rest of us” to suggestion. (Subsequent research has proven all of this false.)
Patricia Polumbo testifies about her interviews with Richard Thompson and John Larson. Under Cross, Polumbo said that John told her he liked Bernie and that Bernie was his friend.
Virginia Stone (who later recanted) is a reluctant witness, probably because she knew she was lying. But she points to the correct area of the anatomically correct doll. She says that Bernie put his dinky in her mouth in the bathroom, but that nothing came out of it. Under cross examination, she tells Conway that she’s talked to her mommy and to Dan Ford about this a lot of times. Under redirect, Virginia tells Ford that Baran had said he’d kill her mommy if she told.
Marsha Lopez, Virginia’s mother, tells the story of Virginia’s alleged disclosure. Under cross, Marsha admits using Baran’s name when talking with Virginia. She also said that Virginia was molested while she was wearing the blue dress, during the summertime. (Virginia transferred to Apple Tree on June 12.)
An attempt is made to examine Annie Brown, the youngest and least cognitively advanced of the children. Dan Ford is unable even to get her to say that she will tell what happened (the simplified oath they were using for the children). Finally Ford suggests, “Let’s go get a hamburger at MacDonald’s.” The judge asks if there’s another witness they can proceed with. Court is adjourned for lunch.
Detective Peter McGuire gives hearsay testimony about his interrogation of Virginia Stone. He says that Virginia identified Baran from a set of photos. Under cross-examination, McGuire admits that Baran had called the police before they went to arrest him. (Baran had been told by his sister that the police wanted to see him. Not knowing what it was about, he called the station.) Baran waived his rights. Baran denied improperly touching any children. He’d said that sometimes he had to help kids zip up their pants. While talking to his mother on the phone, Baran had said that he didn’t do anything wrong and had nothing to hide.
State Trooper Robert G. Scott testifies about his interview with Virginia Stone. Virginia wasn’t terribly cooperative in the interview, but repeatedly said, “Bernie was a bad boy.” She demonstrated abuse on the anatomically correct dolls and said that Baran said he’d kill her mother if Virginia told.
Annie Brown is brought back into the courtroom. This time she nods her head up and down when asked, “Do you promise to tell what happened?” Annie says no when Ford asks her if Baran ever touched her. She says, “He was just pretending.” But she shows the touching on the anatomically correct doll. She says her pants were up. When Ford asks if he put his hand inside her pants, she says yes. Under cross, Annie says she still likes Bernie and agrees that he’s a good boy. (Later, she says she doesn’t like Bernie.)
Lee Ann Bailey, Annie’s mother, testifies. She says again that Gina said, “Bernie touched my tuku.” Annie said other kids were there when it happened. About half the time Annie says her pants were up; half the time, down.
Michael Harrigan, DSS investigator, testifies about his interview with Annie Brown. Annie told him, “Bernie touched my tuku.”
Detective Peter McGuire is recalled. He met with Annie Brown at her home. Annie told him, “Bernie touched my tuku.” She said “Aconite” saw him do it. She had said it happened, “Upstairs with the toys,” and then “downstairs.”
Dr. Suzanne King gives hearsay testimony from her therapy sessions with Gina Smith. King believes that children communicate through play. King believes that a major theme of Gina’s play has to do with fear from bad men. She discounts the power of suggestion. She says that a child Gina’s age couldn’t make up a story about sexual abuse. (Gina didn’t create “her” story. The story was constructed by her mother, the police, DSS workers, the DA’s office, Satullo, and King herself.) Under cross-examination, King says that a parent’s anxiety is not transferable to a child. King says that in interpreting play has to “take the whole context into consideration and everything else that I know about a child in interpreting and making an impression about that play” and “I would never make an interpretation without some sort of history.” (In short, King’s interpretations were based on the assumption that Baran had abused her.)
Dr. Jean Sheeley testified that Peter Hanes’ throat culture was positive. (The test used is now known to be unreliable.) She testified that Gina Smith had two well-healed hymeneal tears, the “large” one 1-2 mm (about 1/20th of an inch). She claimed such tears were “consistent” with penetration by a penis or several adult fingers. (Such “notches” are now known to occur in 50-60 percent of non-abused girls.) Sheeley testifies that full penetration by an adult penis or several adult fingers would be “somewhat painful” for a three-year-old. Sheeley says she examined Virginia Stone, but the results of that exam were negative.
The prosecution rests.
The judge throws out both charges against Peter Hanes and the rape charge against John Larson. He considers action on the charges against Annie Brown, as there were two indictments and there appears to have been at most one act.
Federico Brid, DSS Regional Director, receives the report substantiating sexual abuse of Peter Hanes by John Wilson.
One more time, Dan Ford offers Baran a 5-year sentence in exchange for a guilty plea. Baran is told he can serve half the sentence at the county jail and the rest at a low-security facility called The Sheriff’s Home. Baran is told that if he refuses, Ford will demand consecutive life sentences to insure that Baran never gets out of prison. (If Ford actually believed that Baran was a dangerous child predator and rapist, why did he make such a lenient offer?) Baran refuses to plea and Ford keeps his word.
January 29, 1985. The judge rules that the jury may find guilty on one of the two charges against Brown, but not both.
The first defense witness is custodian Richard Herdman. He doesn’t recall Baran bringing children to the bathroom. One day he helped a little girl in the bathroom pull her pants up, at the girl’s request. The bathroom doors were always open. One time he found a dead bird in a school bathroom, and several children saw it. Baran interacted with the children just like all the other teachers, and Herdman never saw anything suspicious. The shed is a long storage shed for outside toys and garden equipment that is kept locked. Herdman didn’t carry a key but had access to a key. He didn’t know if any of the teachers had a key.
Stephanie Adornetto testifies that she had a key but Baran did not. She’d never witnessed any improper incidents between Baran and the children. Accident reports were always written up when an injury occurred. She didn’t recall Gina Smith ever being injured. Gina attended ECDC three days a week, in the mornings. They had gone on a field trip to the State Forest when Richard Thompson was in her class and Baran probably went along. (Thompson was in Adornetto’s class from 9/6/83 to 11/1/83, almost a year before the allegations. John Larson, who was allegedly abused with Thompson, was never in Adornetto’s class.) Neither she nor Eileen Ferry ever observed Baran sexually abusing a child.
Eileen Ferry testifies that Baran interacted well with the children. Baran begin arriving early for school when he started to ride with Ferry. Five weeks before his arrest, Ferry dropped Baran at the Berkshire Medical Center, where he was treated for an allergy. (The timing was a little off. On 9/21/84, Laurie Bank Berry FNP gave Baran a note that said, “Bernie Baran was seen here by me for a probable allergic reaction. He is healthy enough to be with the children on Monday Sept 24th.”)
Janie Trumpy is questioned about days on which Baran was absent and is asked to identify a letter from Baran’s personnel file, dated 4/13/84. Conway asks no questions about the letter, but says it may come up later.
Dolly Haywood testifies that Baran always spent his lunch hour, from one to two p.m., at her house and they would watch Days of Our Lives together. He did this until 7/84, when Haywood moved.
Sharon DeBonis, Baran’s sister, says that Baran lived with her from 2/84 through 5/84, She is now separated, but at that time her husband and three children were also there. Baran frequently babysat for his sister’s three children, who were two, four, and five and a half. DSS had investigated these kids after Baran’s arrest. But DeBonis is blocked from disclosing the results of the investigation (negative) by Dan Ford.
Conway’s main witness was Bernard Baran himself. He explains in detail his schedule at ECDC, making it obvious that he had no opportunity to molest the children. He denies having sexual contact or engaging in behavior that might have been interpreted as sexual with the children.
During Baran’s cross-examination, Ford prods Baran about his relationship with his boyfriend. He repeatedly asks Baran whether he liked children, whether he enjoys working with them. He asks Baran whether he can say with absolute certainty that in 2 1/2 years he was never alone with a child, and Baran, of course, could not. When Baran explains that he started coming in early after being placed on probation because he didn’t want to be fired, Ford comes back with “because you liked working there at that day care center with those little children.”
At no time does Dan Ford ever demonstrate a motive on Bernard Baran’s part. Baran is not now nor has he ever been a pedophile. Nothing in his history suggests this, and he has always convincingly denied it. But he is a gay man. And he did like children. And that was all that Dan Ford needed to make clear to the jury.
The defense, such as it was, rests.
DSS Regional Director Federico Brid concurs with the substantiation of sexual abuse of Peter Hanes by John Wilson.
January 30, 1985. Ford outdoes himself in his closing statement to the jury. He begins by praising the jurors, and singing a hymn to the jury system, “the best system known to the civilized world for ascertaining the truth in criminal cases.” Ford humbly says that nothing Ford “could say could possibly be as persuasive or as convincing as the testimony of those little children who testified before you over the course of this trial. I dare say that the great Clarence Darrow himself would pale in comparison to them.”
Ford reminds the jury of the testimony of the parents, of the “experts” Suzanne King and Jane Satullo who had testified that children are not suggestible. Ford states that Baran had plenty of opportunities at ECDC, and says “he could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite.” Ford likens Baran to “a chocoholic in a candy store.”
Ford explains to the jury why Gina Smith — who allegedly had been brutally fully penetrated, which caused her vagina to bleed, and then stabbed in the foot with a pair of scissors — hadn’t screamed out at the time nor ever disclosed what had happened to her to any adult. It was because of the Bird’s Nest Game. Ford says: “if she told anybody about what Bernie did to her the baby bird’s mother would be taken away by the pretend police and the baby bird would be hurt. That one frightened Gina so much she couldn’t even tell us about it here in court. She could talk about being raped, she could talk about being sodomized but she wouldn’t repeat the bird’s nest story. That’s how much that one scared her.”
The jury spends 3 1/2 hours to find Baran guilty on all counts. Baran received a fair trial in the sense that black men accused of raping white women in Mississippi during the 1930s received fair trials. Dan Ford was proud to have achieved the nation’s very first daycare case conviction. I suspect he remains proud of this gross and indecent travesty of justice to this day.
Federico A. Brid, Regional Director of DSS, writes a memo informing Gerard Downing of the DA’s office about Peter Hanes, “whom we believe to have been sexually abused by John Wilson, mother’s boyfriend.” Some investigation apparently occurred, but Wilson was never tested for gonorrhea and no charges were brought. The timing is incredible, considering that Baugham’s report was written before Baran’s jury was even selected.
January 31, 1985. Before sentencing, victim-impact statements are given to the Court by two genuinely grief-stricken parents, James Smith and Donna Thompson.
But one of the most dramatic moments of the trial occurs when an ECDC parent, Mrs. Melinda Ward, pleas for Baran. Ward was one parent who had not fallen victim to the hysteria. She tells the Court:
Bernie came into my son’s life — my son was very young. When he started to attend ECDC it was groans and no communication and he couldn’t get along with anybody. That so-called monster started my son on the path of a normal childhood and taught him — taught my son how to interact with other children and encouraged my son to learn and he just became a miracle worker. He filled something that Dougie needed very much.
Now, there’s no two people in the world that I love more than my son and daughter. I would entrust my life and the lives of my children with that man. I just can’t believe that Bernie isn’t entitled to a little compassion and fairness and dignity above all else. That man gave my —
At this point, Conway asks about Dougie’s reaction to Bernie since everything has been going on. She replies:
He misses Bernie very much and when I told him — I kept him in the dark about everything. He still doesn’t know what’s going on with Mr. Baran. But when I told him I was going to be seeing Bernie he picked out a photograph in the book. He wanted me to give that photograph to Bernie even though it was a year old — give it to Bernie because he had his best suit and bicycle, because Bernie had encouraged him to ride and to do things and he wanted to see Bernie very much and he still does.
I encourage any contact between my son and Mr. Baran because he’s not the monster people have made him out to be.
Dan Ford asks Simons to impose two consecutive life sentences, to insure that Baran wouldn’t be eligible for parole for at least 30 years. Baran is instead sentenced to three concurrent life sentences, which he continues to serve. He is initially sent to Walpole, probably the most violent prison in the Massachusetts system. (Click here to read Baran’s own account of entering Massachusetts’s Attica.) Parole is not a possibility, because innocent people are not eligible for parole. Though the years, Baran has steadfastly proclaimed his innocence.
February 4, 1985. Brid’s letter to DA Downing, substantiating sexual abuse of Peter Hanes by John Wilson, is stamped “RECEIVED” by the District Attorney’s office.
February 4, 1985. David O. Burbank, an attorney representing Virginia Stone, writes Dan Ford requesting access to records to aid in a civil suit he plans to file on Stone’s behalf. Burbank is also the attorney who will write Baran’s direct appeal. Baran is never informed of this blatant conflict of interest.
Early February, 1985. Four days after being sent to Walpole, Baran is raped for the first time. Rapes and beatings will be a common occurrence for several years.
Here is Baran’s description of this first rape, from a letter written in February 2002:
I don’t know if I ever told you this before, but I’ve tried to commit suicide before, more than once, and I know that darkness. I know about shutting down your hope. The first time was a little while after coming to prison. I was in Walpole [the nastiest prison in Massachusetts' very nasty prison system], confused, in a state of shock from just being sentenced for crimes I did not commit. It made me sick just hearing myself. I was in the hospital lockup. The administration did not want me in population because there were smokes on my head. That’s where cigarettes are put on your head and the first one to stab you and throw you off the top tier gets them. So hearing this, I’m scared to death. Then one day while taking a shower the runner (a trustee) walks in the shower room and tells me my meal is in the cell. I thank him, but I feel very uncomfortable with him standing there. Then a fear starts building. At an alarming pace it tells me to run, but I’m scared to run. It’s from what I see in his eyes. He walks away and my whole body shakes. I believe he walks away only to see where the cop is. He comes back in and says something to me. But I don’t hear him and he startles me, so I jump and I scream. It was the wrong thing to do. He punches me in the face so hard that the inside of my mouth rips from ear lobe to the middle of my front teeth. At the same time, from the impact of the punch, my head hits the wall with a force that makes a bright painful light flash inside my head. I can clearly hear him saying, “You know what’s going to happen to you.” As he pulls me from the shower, he must have punched me what seemed like a hundred times in the stomach. He picked me up, slammed me against the shower wall, help me up with his elbow under the back of my neck and raped me. I could tell you every last detail all these years later. It’s something I will never forget and always be forced to live with, forever changed. I will always live with that darkness chasing me. Always around the corner to remind me.
Baran receives, the following letter, dated 2/1/85 and postmarked 2/5/85.
Dear Child Molesting Faggot:
Well, you have been in hell for one night! How does it feel???
Better yet! How does it feel to know that you have to spend at least another 5,478 nights there??? Thats 131,472 hours by-the-way!
You know, I wasn’t sure we could convict you with the evidence we had. An awful lot depended on whether the Jury would believe those kids. But, they did! So, our coaching worked!
I nearly came in my pants when they convicted you! That would have been embarrassing! As it was, I had to Jerk-off 6 times when I got home that night and I also had a Wet dream during my sleep!
Of course, it was rather disappointing when that Dumb Jew Judge only gave you one life sentence. I would have much preferred the two!
Just think! You would have been 49 before you got out!
But still. One Life Sentence isn’t bad! You may not be Paroled.
Better yet! Maybe someone will kill you one hour before you are due to be released!
I will be thinking of you.
I don’t, of course, believe that Dan Ford wrote this. (He may be evil, but he’s not self-destructively stupid.) The letter illustrates the homophobia underlying Baran’s prosecution and conviction. And Ford’s homophobia is arguably as extreme as that displayed by the author of this note. See this affidavit.
May 8, 1985. The Berkshire Eagle reports that Marsha Stone (not identified by name) is suing ECDC for $750,000.
July 24, 1985. The Eagle reports that Julie Hanes (also not identified by name) is suing ECDC for 3.2 million.
October 1, 1985. Social worker M.L. Hamilton writes the following report:
Spoke with Audrey Ringer, B.M.H. [Berkshire Mental Health] re Virginia Stone. Audrey stated that it came out in the session that Bernie Baran did not rape Virginia at ECDC last year. Virginia indicated that her mother led her to believe that if she didn’t say the right words they wouldn’t get a lot of money. (Marsha is in the process of suing ECDC.) Audrey feels that at this time that Virginia could of [sic] been coaxed by her mother to say the necessary things at the trial to indicate the sexual abuse or it may [sic] that it actually did take place and Virginia is confused about it. Audrey will not have an exact answer until she meets with Virginia a few more sessions. John Whalen was informed of this.
March 28, 1986. The Berkshire Eagle reports that Baran’s conviction has been upheld by the state Appeals Court.
*April 29, 1986. Gerald Amirault’s trial begins.
June 4, 1986. The Eagle reports that the Supreme Judicial Court refused to hear Baran’s appeal.
*July 8, 1986. Gerald Amirault’s trial goes to the jury.
*July 19, 1986. After the longest deliberation in Massachusetts’ history, Gerald Amirault is found guilty on all counts.
*August 21, 1986. Judge Elizabeth Dolan sentences Gerald Amirault to 30-40 years in prison.
October, 1986. Richard Thompson’s family files a 1 million-dollar suit against ECDC.
*April 12, 1987. The Supreme Judicial Court rejects Gerald Amirault’s bid for a new trial.
May 12, 1987. Marsha Stone Lopez, mother of Virginia Stone, is arrested in a drug raid. A few months later she is ordered to serve 6 months of an 18-month sentence at the state Alcohol Correctional Center in Springfield.
*June 1, 1987. The trial of Violet and Cheryl Amirault begins.
*June 13, 1987. Violet and Cheryl’s trial goes to the jury.
*July 15, 1987. Violet and Cheryl Amirault are sentenced to 8-20 years in prison.
*September 29, 1987. Journalist Debbie Nathan publishes “The Making of a Modern Witch Trial,” in The Village Voice. It’s critical of a daycare case in El Paso, Texas. Nathan is the first prominent journalist to raise the national alarm about the injustices resulting from the daycare hysteria. Over the next several years, she will write many skeptical articles on the subject for the Voice, as will Voice columnist, Nat Hentoff.
December 25, 1987. John Wilson takes a pickax and destroys all the windows in Julie Hanes’ car.
January 7, 1988. During a fight with Julie, John Wilson allegedly stabs himself in the chest. (See also March 29, 1983 entry where David Hanes allegedly stabs himself in the chest.)
March 1988. Baran, in despair after another assault, cuts his wrists. He’s sent to the hospital and to the Bridgewater Treatment Center for evaluation. Baran realizes that Bridgewater would be a much safer place for him and wishes to stay there. To do so, he must be pronounced sexually dangerous.
June, 1988. Baran is interviewed by Dr. Aaron M. Leavitt and denies his crimes. Two weeks later, he is interviewed by Dr. Roland Ungerer. Baran insists he didn’t explicitly admit guilt in this interview. But Ungerer wrote in his report that Baran “decided to come forth and admit to me … that he indeed had committed the alleged crimes.” I of course wasn’t present at the interview. While I believe Baran had no intention of admitting to crimes he didn’t commit, he was nevertheless in an impossible situation given that not being allowed to stay at Bridgewater meant a return to constant rapes, beatings, and probable very early death. Had I been in Baran’s place, I certainly wouldn’t have hesitated for an instant to confess to the crimes Baran had been accused of. And I don’t consider confessions extracted under torture valid.
July 6, 1988. Julie Hanes is deposed for her multi-million dollar lawsuit against ECDC. Here is an interesting excerpt, showing her attitude towards gay men.
July 14, 1988. In a deposition, David Hanes is asked about the Baran incident. He responds:
It scares me. I don’t know. My brother’s in jail right now for the rape of a child. And I know my brother didn’t do it. I don’t know if Bernie Baran did it. But I know I thought he did at the time. I think I might still think he did it. But I’m not quite sure. My conscience has bothered me a lot. Yeah, I thought about it a lot …. I know on my part exaggeration isn’t the right word. I was getting secondhand information from Julie as to what was going on, and, of course, I believed it.
(Click here for a longer excerpt from his deposition.)
January 30, 1989. Baran is committed to the Bridgewater Treatment Center, where he remains today.
February 1, 1989. David Hanes calls Baran’s mother. Hanes threatens to tell all he knows and blow the Baran case open. Hanes calls at least one more time, but then gets cold feet. (At some time prior to this, David Himself had been arrested and charged with child sexual abuse.)
*March 6, 1989. The Supreme Judicial Court unanimously rejects Gerald’s appeal.
April, 1989. Massachusetts Governor and failed presidential candidate Michael Dukakis makes Daniel Ford a Superior Court Judge. He remains on the bench today. We can at least be grateful that Dukakis never had the opportunity to appoint Ford to the U.S. Supreme Court.
September 8, 1989. The Berkshire Eagle reports the beginning of Richard Thompson’s civil suit against ECDC. Thompson’s attorneys — Camille Sarouf of Boston and Cynthia Spinola of Pittsfield — portray Baran as “an emotionally troubled homosexual who frequented Albany’s gay bars.”
September 12, 1989. The Eagle reports that Baran testified and denied abusing Richard Thompson. Sarouf uses Ungerer’s report to impeach his testimony.
September 16, 1989. The Eagle announces a settlement of Richard Thompson’s suit. The terms are not disclosed.
December 3, 1989. Marsha Lopez — Virginia Stone’s mother — dies of AIDS.
*January 18, 1990. After three years of testimony and nine weeks of deliberation (the longest and most expensive criminal trial in US history, costing California taxpayers 15 million dollars) the jury in the McMartin case comes in. Peggy Buckey is acquitted. Ray is acquitted in 39 counts and the jury is hung (with large majorities favoring acquittal) on 13 counts. The prosecution decides to retry Ray Buckey.
*March, 1990. DA Alan Rubenstein, of Bucks County, Pennsylvania, releases his report of his investigation of child sex abuse at the Breezy Point Day School. Rubenstein found no evidence that any abuse had occurred and refuses to prosecute.
*July, 1990. Lowell grandparents Ray and Shirley Souza are falsely accused of molesting their own grandchildren. While the Souzas didn’t run a daycare but were babysitters, the case is essentially identical to the daycare cases.
*July 11, 1990. The Supreme Judicial Court rules 4-1 against Violet and Cheryl Amirault. Chief Justice Paul Liacos writes an impassioned dissent where he criticizes Sullivan for permitting “highly inflammatory and prejudicial” testimony.
*August, 1990. The second McMartin trial ends in a hung jury. The prosecution gives up.
*May 4, 1991. Bobby Fijnje, a 14-year-old boy falsely accused of sexually abusing Sunday School children in Florida, is acquitted of all charges. The primary moving force behind his prosecution was Janet Reno.
*October 1, 1992. Judge Sullivan revises his sentence to time served and orders the Amirault women released from prison. In an unprecedented move, DA Tom Reilly appeals the trial judge’s decision to revise and revoke the sentence he himself had imposed.
*February, 1993. The Souza trial begins. The Judge is Gerald Amirault’s judge, Elizabeth Dolan. The prosecutor is Martha Coakley.
*February 11, 1993. Dolan finds the Souzas guilty on 14 counts of rape and indecent assault and battery.
*May 4, 1993. In a 4-1 ruling, the Supreme Judicial Court overrules Judge Sullivan. Cheryl and Violet must remain in prison. Once again, Chief Justice Liacos writes an impassioned dissent.
*May 11, 1993. Dolan sentences the Souzas to 9-15 years, but allows them to remain under house arrest pending appeals.
*July, 1993. PBS’s Frontline airs “Innocence Lost,” a documentary by Ofra Bikel about the Little Rascals daycare case in Edenton, North Carolina — a sex panic case that closely resembles McMartin, Baran, and Fells Acres.
*Early 1994. A sex-panic is ignited in Wenatchee, Washington, by an emotionally unstable police detective named Robert Perez. About 45 adults will eventually be charged and most will be convicted.
*May, 1994. Dale Akiki, a developmentally handicapped Sunday-School babysitter in San Diego, California, is acquitted of child sex-abuse charges. The prosecuting district attorney is turned out of office months later.
*May 17, 1994. The Souzas file a new-trial motion while their direct appeal is pending.
*June 23, 1994. The New Jersey Supreme Court frees Margaret Kelly Michaels, convicted in the Wee Care daycare case.
January 4, 1995. Based on the evidence discovered of Baran’s innocence (especially Virginia Stone’s recantation and Peter Hanes’ accusation of John Wilson), lawyers for ECDC move to exclude all evidence of Baran’s conviction from the upcoming civil trial. Judge Mary Lou Rupp grants the motion, writing: “Allowed to the extent that evidence that Bernard Baran was convicted of these offenses may not be admitted as substantive evidence of his acts and/or conduct. [My emphasis] Likewise, the sentences imposed on these sentences may not be admitted.”
*January, 1995. Mark Pendergrast publishes Victims of Memory. The book focuses on parents falsely accused of sexual abuse by children who have fallen victim to recovered-memory therapy. But it also includes information on several daycare cases, including Amirault and Souza.
1995. Debbie Nathan and Mike Snedeker publish Satan’s Silence, still the best book about the daycare sex-abuse hysteria.
1995. Stephen Ceci and Maggie Bruck publish Jeopardy in the Courtroom, which contains the results of their research on child suggestibility and reliability. The child testimony in the daycare cases is shown to be worthless.
*January 21, 1995. I meet Pendergrast at a National Writers Union book party. I buy a copy of Mark’s book and become more intensely interested in these issues.
*January 31, 1995. Dorothy Rabinowitz publishes a hard-hitting article about the Amirault case, “A Darkness in Massachusetts,” in the Wall Street Journal. The salient facts in the case are brought to national attention for the first time.
April 5, 1995. Peter and Julie Hanes testify in their civil suit against ECDC. Julie Hanes’ credibility is expertly torn to shreds by ECDC’s lawyer, Rick Brody. (Ironically, Brody is the law partner of Larry Hardoon, the chief Amirault prosecutor. During the investigation, the ECDC lawyers came to believe that Baran was innocent of all of the accusations against him. Hanes’ lawyers try to introduce Ungerer’s report in evidence, but Judge Mary Lou Rupp refuses because she considers Ungerer’s report to have no validity.)
April 6, 1995. The Hanes suit is settled. The terms are undisclosed.
*April 11, 1995. Lawyers for Violet and Cheryl appeal their convictions because the seating arrangements violated their Constitutional right to face their accusers. Gerald Amirault appeals his conviction on the same grounds.
*August, 1995. I meet Debbie Nathan at a National Writers Union Delegates Assembly.
*August 17, 1995. The Souzas’ direct appeal is denied by the state appeals court.
*August 29, 1995. A new trial is ordered for Violet and Cheryl by Judge Robert Barton, who succeeded the retired Judge Sullivan. The prosecution appeals the decision.
*August 31, 1995. After eight years in prison, Violet and Cheryl are finally freed on bail.
*September 27, 1995. The Supreme Judicial Court refuses to review the Souza case.
*November 29, 1995. Judge Elizabeth Dolan refuses a new trial for Gerald. His lawyers appeal.
*Late 1995. Bob Kelley, convicted in the Little Rascals daycare case, is freed. All Little Rascals charges won’t be dropped, however, until 5/23/97/
October 13, 1996. The Boston Globe publishes a worshipful article about Peter Collias, who became a crusader and cofounded Citizens Against Child Abuse. Collias claims to have “recovered” memories of his own abuse. (Collias’s testimony has helped convict other falsely accused people.) Collias claims that Baran had been “accused, and later convicted, of molesting 25 toddlers.”
*Late 1996. The Reverend Nathaniel Grady, who supervised a church-run daycare center in Westchester, New York, is freed on a federal habeas corpus. He is the last of five people convicted to be arrested.
*January 14, 1997. The San Diego-based National Justice Committee, led by Carol Lamb Hopkins, sponsors a Day of Contrition in Salem, Massachusetts, in commemoration of the 300th anniversary of the Day of Contrition declared by Governor Phipps. A primary concern is the plight of people falsely accused of sexual abuse, such as the Amiraults. Several members of the Amirault family attend, including Cheryl and Violet, as well as the Buckeys. Prominent social scientists, legal professionals, and scholars also attend. (For an account of this conference, see “Salem’s Shadow,” by Jim D’Entremont and Bob Chatelle, and “Shalom, Salem,” by Carol Reid.)
*March 24, 1997. The Supreme Judicial Court turns down the appeals of Violet, Cheryl, and Gerald in a 6-1 vote. In a decision written by new Justice Charles Fried (and since widely ridiculed in competent legal circles) the Court conceded that rights had probably been violated, but that “the community’s interest in finality” must be the overriding concern.
*May 5, 1997. Three motions are presented to Judge Barton: motions by the defense for a new trial and to let the women remain free on bail and a motion by the prosecution to send the women to prison immediately. Barton reads a statement saying that the Amiraults “did not receive a fair trial and justice was not done…The substantial risk if a miscarriage of justice has been established…I believe I cannot be fair and impartial considering the three motions before this court.” He then recuses himself and a new judge is sought.
*May 9, 1997. Judge Isaac Borenstein overturns the convictions of Violet and Cheryl. The original trial defense lawyers submit affidavits admitting they made a mistake in not objecting to the seating arrangements. DA Tom Reilly appeals Borenstein’s decision.
*June 19, 1997. Justice Neil L. Lynch of the Supreme Judicial Court turns down a prosecution demand that Violet and Cheryl be immediately returned to prison. Judge Borenstein’s decision will go through the normal appellate process.
*Summer, 1997. Violet Amirault is diagnosed with terminal stomach cancer. Gerald (in shackles, of course) is permitted a single 15-minute visit.
*September 12, 1997. Violet Amirault dies. Among her last words are, “Don’t vote for Scott Harshbarger (The DA responsible for the Amirault prosecution. Harshbarger was then Massachusetts Attorney General and a Democratic candidate for governor).”
*October 16, 1997. The defense files another motion for new trial for Cheryl, based on new evidence.
*October 28, 1997. The Supreme Judicial Court refuses to consider a prosecution effort to send Cheryl back to prison immediately. The SJC will wait the results of the hearing on new evidence before considering the other ruling before it.
*February 2, 1998. The state appeals court rejects the Souzas’ new-trial motion.
*March 26, 1998. A federal court frees Grant Snowden (another Janet Reno case) after 12 years in prison.
*April 1, 1998. The Supreme Judicial Court refuses to review the Souzas’ new-trial motion.
*June 12, 1998. Judge Borenstein grants Cheryl Amirault a new trial. DA Reilly appeals.
I email Debbie Nathan the news about Judge Borenstein’s decision. She replies:
Bob, with this ruling I hope someone will be inspired to help Bernie Baran: as you know, he’s the first daycare worker convicted in a ritual abuse case — also out of Massachusetts — and the reason it started apparently is because he “came out” in his little town and announced his homosexuality at the age of 18. The guy has now been locked up 13 years and is going to rot behind bars unless someone takes an interest in his case. Now might be the time to start.
*July 7, 1998. Dolan turns down a Souza new-trial motion based on ineffective assistance of counsel.
August, 1998. I telephone’s Baran’s mother. She gives me Baran’s address in prison.
August 31, 1998. I write Baran for the first time.
September 17, 1998. Baran tries to phone me when I’m out.
September 21, 1998. I write Baran again. No response is received.
*November 3, 1998. DA Tom Reilly becomes Massachusetts Attorney General. Martha Coakley succeeds him. Scott Harshbarger is narrowly defeated in his bid to become Governor.
*December 12, 1998. Dolan revises and revokes the Souzas’ sentence. They will remain under house arrest until 5/10/2002.
December, 1998. Baran phones while I’m out of state. Baran has an emotional conversation with my partner, Jim D’Entremont.
January 15, 1999. I write Baran again; ask him to call. I receive no response.
February 22, 1999. I write Baran again. Concerned that Baran may not be receiving the letters, I ask Baran to send a postcard acknowledging receipt.
March 3, 1999. Baran finally writes. His letter begins:
I was so happy to hear from you. I did receive your letter with the web site papers in it and I liked it very much. I would like to thank you for the time you have put forth in my behalf. I would also like to tell you that I’m very sorry for not writing you sooner. I just at times get so down in the dumps I find myself fighting just to get out of bed and keep going.
I was talking to my mother last night and as we talked I started to cry. I just told her I don’t know how much longer I can hold on for. I have spent 15 years of my life locked away for something I never did and after a while you start to lose all hope. I tell you this because when I see your letter that’s what I start feeling is hope and it scares me.
I don’t even know if I should have told you that but it’s the truth. At times Bob I feel so all alone. I also do believe people have tried to help me but life moves so fast out there that I seem to always get lost in the process. I’m not saying that you would do this to me. It’s just how it has gone so far. So I fear the hope others bring into my life because I’m always left alone in the pain. My heart can only take so much pain. I’m sure you know that a lot of pain comes from inside as well. I’m glad I started this letter to you. I have wrote to you maybe 10 times already, I just never mailed them out. And believe me this one’s going.
Mid-March, 1999. Jim D’Entremont and I encounter an old friend, attorney John Swomley, at a hearing at the Massachusetts State House. We have lunch together. Swomley — and many others — have been receiving my emails about the Baran case. I tell Swomley I’ve never actually met Baran. Swomley tells me he has other clients at Bridgewater and says I can ride out there with him someday when he has appointments. (I don’t drive.)
*May 6, 1999. The Massachusetts Supreme Judicial Court hears the Middlesex DA’s appeal of Judge Borenstein’s ruling granting Cheryl a new trial. The Justices are friendly to the prosecution and openly hostile to Cheryl’s attorneys.
June 3, 1999. I finally meet Bernard Baran. Baran is nervous and probably a bit distrustful. But I like him very much. I ask him about visiting hours and rules. “I don’t really know much about them,” he says. “No one ever comes to see me except for my mother.”
July, 1999. The Bernard Baran Justice Committee is formed.
*August 18, 1999. A black day in Massachusetts history — a day to rival the execution of Sacco and Vanzetti and the hangings of victims of the Salem Witch Trials. The Supreme Judicial Court, in an unanimous decision, throws out Borenstein’s humane and reasoned ruling for a new trial. The gloating of the zealots who perpetrated this injustice sickens the heart. Wendy Murphy, one of the Middlesex prosecutors, tells The Boston Herald: “Stick a fork in them. They’re done.” The Boston Globe praises the decision in an editorial.
September, 1999. I write a short account of the Baran case for Justice Denied.
*September 13, 1999. In a courageous and unprecedented move, the Massachusetts Lawyer’s Weekly publishes an editorial unequivocally criticizing the SJC’s mishandling of the Amirault Case. The editorial is titled, “Travesty of Justice.”
October 12, 1999. I encounter a Quaker friend, Richard Callahan, at a memorial service for a mutual friend. I haven’t seen Richard for many years. Knowing that Richard has done prison ministry for a long time, I tell him a bit about the Baran case and offer to mail him information.
*October 21, 1999. DA Coakley balks. She agrees to a revise-and-revoke of Cheryl’s sentence, so that she doesn’t have to go back to prison. She imposes several conditions — one of which is that Cheryl can’t discuss her case on television.
Mid-November, 1999. Richard Callahan brings me and Jim D’Entremont out to Bridgewater to visit Baran. Callahan decides to visit Baran weekly. Jim and/or I will accompany him when we can.
December, 1999. Jim D’Entremont and I write a more complete account of the Baran casefor a gay monthly, The Guide.
January 12, 2000. The Wall Street Journal publishes a letter about the Baran case, sent by J..M. Hacquebord of Chelmsford, Massachusetts.
February 21, 2000. Katha Pollitt publishes an excellent column about the Baran case in The Nation.
March 18, 2000. Samuel Sass publishes a column about the Baran case in The Berkshire Eagle.
March 19, 2000. Baran suffers a very serious head injury while playing basketball at the prison. He is rushed to the hospital. He was hit in the nose and a bone was pushed into the cranial cavity. Recovery will be slow.
*April 19, 2000. Gerald Amirault files a petition for commutation of his sentence.
*September 20, 2000. The Massachusetts Parole Board holds a hearing on Gerald Amirault’s petition for commutation.
October 1, 2000. The Sunday Boston Globe Magazine publishes a highly flawed and biased article about the Baran case. The cover has a faceless photo of Baran with the words The Molester in large black print. The article inside, by former book editor David Mehegan, is factually in error, poorly researched, and reflects Globe house dogma that all accusations of sexual abuse (true and false) must be believed. The article isn’t all bad, however. It effectively demonstrates that the physical evidence against Baran was worthless.
November 17, 2000. Harvard Law School sponsors a conference called “The Day Care Child Sex Abuse Phenomenon.”
December 4, 2000. Baran’s attorneys file a motion requesting that the Berkshire County District Attorney turn over to them copies of the videotapes of the child interviews.
*December 6, 2000. The last Wenatchee sex-ring prisoner to be freed within days.
February 7, 2001. Bernard Baran is given notice to appear before the transfer-board on March 9, 2001. The state will argue that Baran should be transferred out of the safety of Bridgewater back into the general population of another prison because his refusal to admit guilt makes him “untreatable.” Baran’s attorney gets the hearing rescheduled for May 22.
May 22, 2001. The transfer board decides unanimously to keep Baran at the Bridgewater Treatment Center.
*July 6, 2001. The Massachusetts Parole Board votes 5-0, recommending that the Governor commute Gerald Amirault’s sentence to time served.
October 24, 2001. A judge orders the Berkshire County DA’s office to turn over to the defense videotapes and transcripts of the children used as Baran’s accusers. The request for materials had been made late in 2000, but the DA refused to cooperate and stalled Baran’s appeal by demanding continuances. Unfortunately, the DA claims to only have the video of Annie Brown’s interview and two edited tapes prepared for the Grand Jury. (Baran was actually indicted on the basis of edited interview tapes.) Only Baran, the Baran defense team, and defense-team experts will be permitted to view the tapes. The judge orders the DA to draft the protective order for the materials. The judge also orders the DA to turn the videotapes over to the Clerk of Court and to have two copies made of each tape.
*October 31, 2001. Governor Swift signs into law a bill exonerating five of the people hanged as
witches in Salem in 1692.
*November 29, 2001. Governor Swift meets with the Fells Acres accusers.
*January 6, 2002. The Boston Globe begins a non-stop series of articles about sexual abuse of minors by Roman Catholic priests.
*February 19, 2002. In the midst of a full-fledged sex panic about sexual misconduct by Catholic priests, the cowardly Swift turns down Gerald’s petition. A year from now, Swift will be just a bad memory. But those of us who care about justice will still be fighting.
April 4, 2002. Nearly six months elapse, and Berkshire DA Gerard Downing still has not complied with the Judge’s request for a draft of the protective order. In frustration, Baran’s attorneys submit their own draft to Judge Francis Fecteau.
*April 4, 2002. Gerald Amirault has a hearing before the prison classification board on a petition for early parole. He is turned down 3-0 because he asserts his innocence. Their decision, however, can be overruled by the prison superintendent.
April 5, 2002. The National Center for Reason and Justice (NCRJ) is founded. The NCRJ, a tax-exempt organization, will agree to accept donations for Baran’s defense.
*May 10, 2002. Ray and Shirley Souza are freed after spending 9 years under house arrest.
May 22, 2002. The Bernard Baran Justice Committee signs an agreement with Swomley & Associates. The law firm agrees to “represent Bernard Baran in his efforts to obtain a new trial and all legal proceedings thereafter.”
November 8, 2002. Over a year has passed, and Berkshire DA Gerard Downing has still not drafted a protective order nor has he agreed to the defense’s draft of the order. Baran’s attorneys write Downing one more time.
January 13, 2003. Baran’s lawyers ask Judge Fecteau to grant the motion for discovery, compelling DA Downing to give up the videotapes.
February 7, 2003. After 26 months of needless foot dragging, D.A. Downing finally responds to the request for materials. He requests minor adjustments to the Joint Proposed Protective Order Regarding Videotapes.
*February 27, 2003. My prediction of 2/19/02 is fulfilled. Gerald Amirault petitions elected Governor Mitt Romney to commute his sentence and release him from prison.
*March 14, 2003. The Massachusetts Parole Board turns down Gerald’s petition, saying that he is scheduled for a parole hearing in October and that the commutation process would take too long to complete.
March 27, 2003. A hearing is held on discovery motions in the Baran case. Here is the report I sent out to my email list:
Dear Friend of Justice,
We attended a hearing on the Baran case, which took place this afternoon at the Worcester County Courthouse (in Worcester Massachusetts) at 2 p.m.
In addition to the judge and court officers, there were sixteen people present: Baran’s lawyers (John Swomley and Pam Nicholson), thirteen Baran supporters (many of whom drove long distances to be there), and Berkshire County D.A., Gerard Downing, who was involved in Baran’s original conviction over 18 years ago.
The hearing concerned discovery motions filed on Baran’s behalf. The first of these motions was filed on December 4, 2000 — nearly two and a half years ago. Downing, who has repeatedly stalled and sought continuances, has turned over nothing thus far. But as of this afternoon, he seemed willing to at least turn over those materials that had been made available to Baran’s trial and direct-appeals counsel. Downing claimed the only hang-ups in finalizing a protective order insuring the safety and confidentiality of videotapes and other material were concerns about the “sensitive nature” of the material and fears that the identity of individuals and bits of confidential information could be made public.
Following Baran’s conviction, the original trial lawyer turned all the evidence and documentation he had over to the lawyer who did the direct appeal. But the law firm that handled the direct appeal subsequently destroyed almost all of the material, except for the final brief and a few pieces of correspondence. Thus it is important that Baran’s lawyers get the requested documents directly from Downing. The judge has not yet granted Swomley subpoena power in this case. We are now hopeful, however, that material will be turned over within the next week or so.
Downing raised the issue of pursuing discovery — the evidence-gathering that precedes a trial — before the new-trial motion has been filed. But Judge Fecteau explained that he personally feels that discovery prior to the filing of a new-trial motion is very important. Baran’s lawyers pointed out that the premature filing of new-trial motions had caused seriously problems in other Massachusetts’ cases.
Downing claims that he has only been able to locate three videotapes, and that at least two of them were edited tapes. All of the accusers were videotaped, but the raw tapes were not shown to the Grand Jury. Instead, the prosecutors created “edited” tapes containing all of the passages they considered most incriminating. The Grand Jury indicted on the basis of these edited tapes. Edited tapes are obviously of very limited use, as almost all of the repeated, suggestive, and coercive questioned will have been edited out. But this misleading editing might, of course, be an issue itself in Baran’s favor. Downing stated that his office will continue to look for the missing tapes, and that a search will also be made at the police department. I for one am not holding my breath.
The videotapes are not the only evidence that is supposed to be turned over presently. Swomley should also be receiving copies of police reports, medical reports (”on the children who were raped by Bernard Baran,” as D.A. Downing so charmingly put it), and Department of Social Services (DSS) reports.
There is, however, another major class of evidence that Swomley is seeking: exculpatory evidence in the DA’s possession that *was never turned over* to Baran’s trial or appellate attorneys. For example, the first “accuser” in the Baran case made a much more credible accusation against one of his mother’s boyfriends. [I call this man John Wilson at the Baran web site. See the Baran chronology (freebaran.org./chron.php) and see the entries concerning Wilson for January 13, 1985 through February 4, 1985.] While the DA’s office apparently knew all about the accusation, which was made before Baran’s trial even began, Baran’s trial and appellate lawyers were never informed. (The information was uncovered years later by an attorney doing research for one of the civil trials.) Downing concedes that some material exists that was not turned over to the defense in the original trial; this admission is something of a breakthrough.
Downing complained that Swomley’s request for information was “over broad.” He said he needed more time to respond. The judge thus continued the hearing to May 22, 2002, at two p.m., at the same courthouse. (The hearing took place in room 12, and I suspect the continuance will take place there as well.) Downing agreed to give Swomley his response at least ten days before the May 22 hearing.
I was very pleased by the show of support at this hearing, and I hope that it grows as this case progresses.
*April 3, 2003. Dennis Maher — a longtime friend of Bernard Baran’s — is freed after 19 years in prison for rapes he did not commit. Maher was cleared by DNA evidence. DNA will not help Baran, because in his case no crimes were actually committed.
July 28, 2003. After nearly three years of stonewalling, Berkshire County DA Gerard Downing finally gives Baran’s attorneys three videotapes. All three have been severely edited.
July 31, 2003. The lawyers receive 30 pages of discovery from DA Downing, consisting of Emergency Room records, doctor’s notes, and DSS reports for some of the children.
*August 23, 2003. Father John Geoghan is murdered in prison. Father Geoghan was the first priest named by the Boston Globe in its extensive series of articles about real and alleged sexual abuse by Roman Catholic priests. Geoghan was serving a ten-year sentence for touching a boy’s buttocks.
September 11, 2003. Another discovery hearing is held before Judge Fecteau. Here is the report I sent to my email list:
Dear Friend of Justice,
Today was a good day for Bernard Baran. Judge Fecteau gave the Baran defense team everything that they asked for.
The Hearing started at 2: 27. Attending were 14 Baran supporters, the three Baran lawyers — John Swomley, Pam Nicholson, and Harvey Silverglate — and Berkshire County DA, Gerard Downing.
John Swomley pointed out that he has still not received materials from a previous discovery motion, filed in April of 2002. He still does not have three police reports, any Grand Jury notes, any unedited tapes, or requested exculpatory material. He has received three tapes, but all three have been very heavily edited.
As a result, Swomley indicated he might be requesting subpoena power so that he could pursue an alternative course in obtaining material — that is, from the many civil attorneys who were involved in lawsuits spawned by the Baran case.
DA Downing revealed that he has since located one more edited tape. This tape had been in the possession of a former DA who had taken it and had used it as “training material.” Downing agreed to turn this over. The Judge was very concerned that a former DA had removed sensitive material from the Berkshire DA’s office, and asked Downing to contact her to make sure she had no other unauthorized material in her possession.
Downing offered no theories about what might have happened to the unedited videotapes or to the Grand Jury minutes. Judge Fecteau speculated that the civil lawyers might have copies of the minutes. He also suggested that an attempt be made to see who the court stenographer had been and to see whether he or she might have the minutes on file.
Swomley’s main arguments focused on the request for exculpatory evidence. He pointed out that there were two classes of exculpatory evidence — pre-conviction and post-conviction — and he was concerned that the DA’s office may have both in its possession and be unwilling to voluntarily surrender the evidence.
As an example of pre-conviction exculpatory evidence, Swomley pointed out that the index child (first accuser) had accused another man of sexually abusing him, and that this accusation had been investigated and substantiated by the Department of Social Services before Baran’s conviction.
[A complaint was made to DSS on 1/17/85. DSS investigated the following day, in the morning. Judge Simons held the pre-trial competency hearing that afternoon. On 1/21/85, The accusation was investigated further and substantiated. On 1/21 and 1/22 the Baran Jury was selected. On 1/2285, the DSS Area Director concurred with the substantiation. On 1/23/85, Baran's trial began. On 1/30/85, The Regional Director of DSS wrote to Assistant DA Gerard Downing informing him that DSS had substantiated the accusation against a man who is not Bernard Baran.
Baran was found guilty that same day. On 2/4/85, the DA's office stamped "Received" on the report substantiating abuse of the index child by the mother's boyfriend, not Bernard Baran.
But the Berkshire County DA's office never turned any of this information over to Baran's trial or appellate counsel. It was unearthed by an attorney for one of the civil cases and is now part of the public record, obtainable by anyone who goes to the Berkshire County Courthouse. I obtained my copies of these documents from the Courthouse in December of 2000.]
As an example of post-conviction exculpatory evidence, Swomley cited the recantation of one of the accusers, which took place a few months after Baran was sent to prison.
[A social worker reported that "Audrey [the girl's therapist] stated that it came out in the session that Bernie Baran did not rape Virginia [not her real name] at ECDC last year. Virginia indicated that her mother led her to believe that if she didn’t say the right words they wouldn’t get a lot of money. (Marsha [the mother] is in the process of suing ECDC.)”]
No documents relating to this recantation were ever turned over to Baran’s attorneys. The evidence was unearthed by the same attorney — Jocelyn Sedney — who uncovered the accusation against the other man. [The document I quoted is also open to the public at the Berkshire County Courthouse.]
Swomley said that he had also found evidence that a second accuser had also recanted. [I have no information about this at this time.]
Swomley cited these two incidents as basis for his concern that Downing might never turn anything over voluntarily.
While Downing did not address the incident of the index child accusing another, he did insist that he was unaware of the recantations.
Downing also said he had DSS reports on some of the children, including 51As and 51Bs [sex-abuse accusations], that were post-conviction. Downing said he would be willing to turn these over, but had a concern about whether DSS needed to be heard.
The judge ruled that he did not consider this necessary, since DSS had already turned these records over to the DA’s office.
The judge also granted both attorneys access to all of the files in all of the civil cases. These means that Baran’s attorneys can subpoena information from the civil lawyers. These lawyers could, of course, challenge the subpoenas. But we are quite confident that most will not. In fact, we have reason to hope that even the attorneys representing the alleged victims maybe co-operative.
[For example, the lawyer representing the child who recanted seems to believe in Baran's innocence and has indicated his willingness to help the Baran legal team.]
All three of Baran’s lawyers were extremely pleased with the day’s developments. They felt that the major roadblock to preparing a new-trial motion has been removed and they hope to proceed swiftly to obtain Bernard Baran’s freedom.
Jim and I had an emotional — and sometimes tearful — telephone conversation with Bee tonight. While he was very happy, he was still very cautious. At one point he said, “What worries me is that the system I’m hoping will free me is the same system that put me — an innocent man — here 19 years ago.” [Put him there, and left him there to rot.]
I share Bee’s fears, of course. I too have little faith in “the system.” But the truth is still the truth and it’s hard to keep the truth hidden forever. As one of the Watergate conspirators (I think it was Ehrlichman) once said, “Once the toothpaste is out of the tube, it’s very hard to put it back.”
Well, I think the toothpaste is finally coming out of the tube. People are finally beginning to take notice of this case. I have been investigating this case for five years, and I have yet to come across a piece of information that incriminates Bernard Baran. All the DA has — all the DA has ever had — is medical “evidence” that has since been thoroughly discredited and the coerced testimony of confused toddlers — testimony that today is ridiculous on the face of it. Bernard Baran was not convicted by evidence. He was convicted by hysteria and bigotry.
I don’t envy Gerard Downing. I don’t think he’s going to get that toothpaste back in the tube.
September 18, 2003. The National Center for Reason and Justice sponsors a benefit, primarily to help Baran, in New York City. The award-winning movie Capturing the Friedmans is shown. Speakers include Katha Pollitt and Debbie Nathan. Jesse Friedman reads some of Bernard Baran’s letters from prison. Bob Chatelle introduces Baran’s mother and niece. The event concludes with Baran’s lead attorney, John Swomley, giving an optimistic update on the progress of the case.
October 16, 2003. The parole board grants parole to Gerald Amirault. DA Martha Coakley, however, is given unti April 30, 2004 to decide whether to try to commit Gerald “from one day to life” as a “sexually dangerous person.”
November 3, 2003. Judge Fecteau signs the first batch of subpoenas.
December 15, 2003. Gerard Downing has a fatal heart attack while shoveling snow. Assistant DA David Capeless takes over the Baran case.
March 26, 2004. At Baran’s request, his lawyers release a public status report.
April 24, 2004. DA Martha Coakley announces that she will not attempt to block Gerald Amirault’s parole by attempting to classify him as a sexually dangerous person.
April 30, 2004. Gerald Amirault goes home on parole. On the very same day, in California, the conviction of John Stoll — one of the first people convicted during the 80’s child sex panic — is voided.
June 16, 2004. Baran’s laywers file a new-trial motion and a supporting Memorandum of Law. (Microsoft Word document, approximately 1000K, redacted.) On the same day, The Boston Phoenix publishes an excellent in-depth article about the case.
June 23, 2004. Harvey Silverglate, Lindsey Taub, and I discuss the case on NewsNight, a nightly news program on New England Cable News. The Boston Phoenix publishes a follow-up article and also this editorial.
August 25, 2004. John Swomley files suit against DA Capeless, demanding that he turn over the information his office has been refusing to release for the past four years.
September 9, 2004. Berkshire Community College Professor Wayne Klug hosts a forum on the Baran case. Speakers are journalist and book author Donald Connery, John Swomley, Baran’s mother, Bertha Shaw, and myself. DA Capless is strongly criticized for his conduct of the case. The Berkshire Eagle declines to cover the event.
September 10, 2004. The Berkshire Eagle endorses Capeless for District Attorney.
September 14, 2004. David Capeless wins the primary and will run unopposed for DA in November.
September 16, 2004. Capeless telephones John Swomley. He apparently has “discovered” missing material, including several videotapes and a portion of the grand-jury minutes.
September 17, 2004. A conference is held before Judge Fcteau in room 203 of the Worcester County Courthouse. Here is the email I sent to supporters:
Dear Friend of Justice,
This will be a fairly quick account, but I wanted to get something out ASAP as many of you have been inquiring about what went on.
The entire conference was short — less than an hour — but there were a number of surprises.
The first surprise was seeing Bernard Baran himself in the courtroom. It was his first time in a courtroom since he was dragged into the 1989 civil trial of the witness Identify in my account as “Richard Thompson.” (While the Boston Phoenix used actual names for all of the witnesses, I have decided to stay with my decision to use pseudonyms.)
John Swomley had originally issued a habeas for Bee to attend the conference. But he had cancelled it when he found out that Bee had been ill this week. But the fax hadn’t arrived at the time Bee’s transportation came to get him. Bee was feeling a bit better, so he decided to attend.
Another surprise was that DA David Capeless arrived with two rather thick envelopes containing videotapes. Swomley has been trying to gain access to the videotaped interviews of the child witnesses since December 2000. Capeless (rather miraculously) “found” some just two days prior to the hearing — and the day after the primary election. Capeless also “found” a portion of the missing Grand Jury minutes. Capeless turned this material over to John Swomley. At this point, I know nothing about who is on the tapes and whether or not they are edited or unedited.
During the hearing, Capeless also indicated his willingness to comply with the Freedom of Information Act and allow John Swomley to go through the Baran files. Capeless, however, set himself no deadline while the conference was in session and the judge made no ruling at the time. Since Capeless is in default in responding to the FOIA request, Swomley will file a demand for relief ASAP.
The Baran defense team has requested information from a great many sources in addition to the DA’s office– the Pittsfield Police Department, the Department of Social Services, and law firms representing both plaintiffs and defendants in the various civil suits spawned by the Baran case. Lawyers for many of these entities have refused to release material without a direct order from a judge. (This is for reasonable fears of liability.) Several of the involved lawyers were not able to make the conference on such notice, but some indicated that they would just comply with the judge’s orders. No one, to my knowledge, is creating unreasonable obstacles to releasing material.
A lawyer from the firm that had represented “Richard Thompson” did appear. He revealed that his law firm had the *original* videotape of an interview with “Thompson” and that he would comply with a Court order to give the tape to Swomley. It is possible that some of the other law firms involved in civil cases also retained video tapes.
We are hopeful that Judge Fecteau will issue the appropriate orders in the very near future. But John Swomley was able to walk out of the courtroom with a number of tapes in his possession. I am hopeful that they will contain useful information.
The next court date on these matter was set for October 26 at 9 a.m. in Worcester.
After the conference, Swomley met with Capeless and Capeless invited John to come to Pittsfield and examine the Baran files on October 25, the day before the hearing. John hopes to gain access much sooner. I hope he and Capeless can work out the details between them without having to go back into court yet one more time.
On June 16th, Swomley filed the new-trial motion in the case. Fecteau granted Capeless’s request for 120 days to respond. The response deadline is thus now October 16. But given the history of foot-dragging in this case by the Berkshire DA’s office, I fear that Capeless is going to beg for even more time. Let us hope not. Bee has spent far too much time in prison as it is. Justice demands that he be released as soon as possible.
We had less them 48 hours notice of this hearing, which took place at 9 in the morning at a location not convenient to most of us. Nevertheless, eight Baran supporters attended: Donald Connery, Bee’s mother and brother, There Caron, Frank Kane, Daniel Lee, and myself and Bee.
While we were delighted to see Bee in the courtroom, it was heart-wrenching to all of us to see him led out in handcuffs. He is a very fine and decent person. Would that there were fine and decent people with power in Berkshire County!
October 19, 2004. John Swomley is finally allowed to look at the Baran file at the Berkshire DA’s office. Swomley discovers that Baran’s appellate attorney, David O. Burbank, was also representing Virginia Stone, one of the alleged victims, in a civil suit.
October 26, 2004. A hearing is held before Judge Fecteau. Here is my email report:
Dear Friend of Justice,
This morning in Worcester, Judge Francis Fecteau held a hearing on the Bernard Baran case. Representing Baran were attorneys John Swomley and Eric Tennen. Representing the Commonwealth was Berkshire County DA David Capeless. Also in attendance were 16 Baran supporters, including his parents, Bertha and Stan, and his niece, Nicole.
The law firm of Morris and Mahoney had been invited to attend. They, however, informed John Swomley of their willingness to comply with any discovery order issued by the Court, and Swomley so informed Judge Fecteau.
Swomley told the judge that in viewing files at the DA’s office, he had found a letter from David O. Burbank informing DA Dan Ford that Burbank was representing one of the alleged victims in a civil suit. Since Burbank was representing Bernard Baran on appeal, Swomley felt that at the very least this was an apparent conflict of interest and that neither Baran nor his mother had been informed of the conflict. Swomley requested orders to view the files of the law firm — Cain, Hibbard, Myers & Cook — on this particular case. He also requested access to the files of the subsequent lawyer representing this alleged victim, Howard Guggenheim.
Swomley informed the Court that the obtained videotapes had been submitted to the expert, and that the witness was ready to testify to the suggestivity of the questioning and the unreliability of the evidence. Swomley said that he was missing the videotape of one of the alleged victims and was unsure whether the tape he had on another one was unedited.
Swomley also complained about the bottleneck at the office of the Berkshire County Clerk of Court. Orders signed by Judge Fecteau are sent to the Clerk’s office and the Clerk is supposed to process them and send them out. But the Clerk has been letting these orders just sit unprocessed on her desk. Swomley said it had been like “pulling teeth” to get the orders out of her office. The Clerk of Court is Deborah Capeless, sister-in-law to David Capeless.
Swomley reiterated that the Grand Jury minutes are still missing.
Swomley has received many reports on the children from the state Department of Social Services. The DA’s office has never disclosed possession of these materials. The DA’s office has also never disclosed its possession of the material relating to the man who had been investigated for sexual abuse of the first accuser.
Swomley said that former DA Gerard Downing had stated that materials were stored at “several sites.” He requested written assurance from Capeless that all of these sites have been searched for Baran materials.
DA Capeless insisted that he has given Swomley everything he has. Capeless also said he wanted copies of everything that Swomley has received from the civil attorneys. Swomley agreed, but pointed out that the copying costs would be significant. The judge pointed out that in such cases copying cases are paid by the party requesting the material.
Capeless also handed the judge and John Swomley his response to Swomley’s new-trial motion.
Swomley requested from Capeless a written response, detailing what has been turned over and what can’t be found. Capeless also admitted that he didn’t turn over all of the materials requested under the Freedom of Information Act. Swomley requested in writing a list of what was not turned over and why it was withheld. Swomley stated that he wants access to the entire file.
An argument hearing on the new-trial date was set for December 28 at 9 a.m. in Worcester and the hearing will take place in Room 12. On December 3 at 9.a.m., also in Room 12, there will be an interim-status conference. Swomley may request an evidentiary hearing rather than an argument hearing. At an evidentiary hearing he would be able to call witnesses, such as the expert who is analyzing the videotapes.
The DA’s response to the new-trial motion was 24 pages long. Swomley hasn’t had a chance to read it yet. Mr. Tennen gave it a quick read through and felt that the arguments didn’t seem particularly compelling.
Cain, Hibbard and David O. Burbank deny the existence of the document that Swomley found at the DA’s office last Tuesday. I asked Swomley if I might have a copy. He told me that since it was a public document, obtained under the Freedom of Information Act, he saw no reason why not. Presently I will key in a redacted form and place it at the Baran web site.
I had hoped that Bee would not have to spend another Christmas in that awful place. But at least there is now hope that he could win his freedom before his 40th birthday, next May. He has been in prison far too long and has suffered far too much. The people who created this massive injustice should feel ashamed of themselves. But I suspect that they do not.
I am sorry to report that I was disappointed this morning by an editorial in the Berkshire Eagle titled, “Bernard Baran and Conspiracy Theories.” The editorial strongly supports Bee’s bid for a new trial, and I am grateful for that. But it accuses John Swomley of promulgating a “conspiracy theory” at his recent talk at Williams College. Any journalist knows that a most effective way of discrediting someone is to accuse them of being a “conspiracy theorist.” (This has been the case ever since the first Kennedy assassination.)
While I did not attend John’s talk, my partner Jim did and Jim assures me that John said nothing about claiming a “conspiracy.” And I’ve know John Swomley long enough to know that doing such would be wholly out of character for him. I suspect the editorial was written by someone who was not in attendance.
I have been researching this case for well over six years. What is clear to me is that in the past 20 years a great many people in Berkshire County have been behaving very, very badly.Since many of these people know one another and have worked together, it is possible at various times they may have “conspired.” Or they may have just behaved in immoral and unethical ways to advance their own careers. People in similar situations behave in similar ways. Who cares whether or not there was a conspiracy? That’s not the point.
The point is that a very serious injustice was inflicted on a fine young man and his family. It is a wrong so grievous that it can never be set right. But Bernard Baran must be freed as soon as possible so that he may at long last have at least a chance at a real life.
November 29, 2004. Dr.Maggie Bruck — one of the world’s foremost authorities on the reliability of child testimony — files an affidavit in support of an evidentiary hearing for Bernard Baran. In it Bruck states: “I have reviewed the videotapes. It is my expert opinion that the techniques used were highly suggestive and thus rendered the children’s testimony unreliable…Moreover, the suggestive techniques tainted any furhter testiminy these children gave…If called to testify,I will explain the scientific basis for my conclusions. I will detail how the interviewers’ questioning and methodology was suggestive.”
December 28, 2004. The motion for an evidentiary hearing is granted. Here is my emailed report on the hearing:
Dear Friend of Justice,
Bernard Baran had a good day in court. I will try to provide a brief account.
I just made it back to Boston late last night. I was supposed to return the day before, but Logan airport was closed shortly before my plane was to land. They held me captive in Detroit for 24 hours. I slept poorly last night, and my hearing hasn’t yet returned from the flight (this was complicated by a bad cold.) So I wasn’t in the best of shape in Worcester this morning.
The hearing actually began just a few minutes past nine. The courtroom was filled with about 30 Baran supporters. I suspect we will need a room with more seating capacity for the next hearing. The hearing was covered by the Boston Phoenix. I suspect more press may attend in January.
Baran’s lead attorney, John Swomley, told the Court that an evidentiary hearing was necessary because of what we have learned since discovery was allowed in the case. For one thing, the videotapes of the child interviews have n ow been viewed by the defense team and by our expert witness, Dr. Maggie Bruck. For another, documents have surfaced indicating a serious conflict-of-interest within the law firm of Cain, Hibbard hampered Baran’s direct appeal.
Swomley cited letters written by David Burbank — who wrote Baran’s direct appeal — asking for materials to help in building a civil case for one of the alleged victims — a girl I refer to as “Virginia Stone” at the Baran web site. Swomley also cited a letter written by prosecutor (now Judge) Dan Ford, complying with a request from Cain Hibbard for information. This letter was sent before Baran’s trial even began. Stone’s subsequent lawyer — Howard Guggenhein — believes that Cain, Hibbard did a thorough investigation of the case before Guggenheim took it over.
Swomley wishes to investigate whether Cain, Hibbard knew that Virginia Stone was sexually assaulted by one of her mother’s boyfriends (the mother was a prostitute) in a motel in Springfield in July of 1984. (The Baran case began in October of that year.) The boyfriend went by the name of Chino. Swomley pointed out that Cain, Hibbard was aware of their conflict-of-interest problems because one of their lawyers resigned from the board of the daycare because Cain, Hibbard was representing Virginia Stone.
The only information regarding Chino that was given to Baran’s trial lawyer was a copy of a report by pediatrician Jean Sheely, who examined Virginia. That report only indicated that Virginia had alleged abuse by someone named Chino with no further information.
The Chino allegation was in fact investigated by Pittsfield detective Peter McGuire and by the Department of Social Services (DSS). But none of the reports were ever given to Baran’s trial counsel.
While the other alleged victims were interrogated by Jane Satullo and by DSS workers, Virginia was interrogated by a state trooper named Robert Scott. Scott was never informed of the Chino allegation. It would appear that the DA’s office brought in Scott precisely because they wanted Virginia interrogated by someone who wasn’t aware of the Chino allegation. Swomley said that Scott was not comfortable with becoming involved in the case, but would testify if subpoenaed.
It is interesting that the one missing videotape is the tape that was made of Scott’s interview with Virginia Stone.
As for the videotapes themselves, Swomley pointed out that they not only contained much evidence of suggestive and improper interviewing, they also contained much exculpatory material that was kept from the Grand Jury and from defense counsel. Baran’s trial lawyer was only given edited copies of the videotapes — essentially the same edited copies that had been shown to the Grand Jury. Swomley feels that Baran definitely did not get a fair hearing before the Grand Jury.
Swomley said that Dr. Maggie Bruck had viewed the videotapes that have been obtained and that he felt her live testimony about their content was essential.
Swomley explained that we were not making the same arguments that were unsuccessfully made in the Amirault case. We are not arguing that Dr. Bruck’s testimony would constitute newly discovered evidence. We are arguing that the tapes themselves are newly discovered evidence, that they contain much exculpatory material, that they were withheld from Baran’s lawyers, and that a failure to use this evidence on the part of Baran’s lawyer would be evidence of ineffective assistance of counsel.
Baran himself was upset at the time of trial that they were only given edited tapes and he was very upset that his lawyer wasn’t interested in doing anything about this. This is something that Baran told us over five years ago and Baran would testify to this at an evidentiary hearing.
In my opinion, the response of DA David Capeless to all of this was very weak. He claimed that he had seen no evidence of conflict on the part of Cain, Hibbard. (A point of an evidentiary hearing would be to see whether this evidence exists.) He argued that if the Chino allegation had been disclosed, it would not have been useful because Virginia was claiming that Chino and Baran both abused her — in identical ways. He also seemed to argue that it didn’t matter that improper techniques were used in the videotaped interviews, because he claims that the children had “disclosed” prior to the making of the tapes.
Swomley pointed out that part of the importance of the Chino allegation was that it showed why Virginia knew what sexual abuse was. He also pointed out that a few months after Baran was sent to prison, Virginia recanted her accusation against Baran, and said she was just saying what her mother told her to say so that they could get a lot of money. (Virginia made this recantation to a therapist.)
Because Baran’s trial counsel did not know about the Chino allegation, he >could not cross examine Virginia or her supporting witnesses effectively.
Harvey Silverglate took over to reiterate that we are not making the same arguments that were made in the Amirault case. In that case, the Supreme Judicial Court claimed that the science regarding improper interviewing was known at the time of the Amirault trial and was not newly discovered. Harvey pointed out that this actually strengthens our argument. If the tapes had been available, they would have been admissible as exculpatory. And if trial counsel hadn’t used these tapes and could have done so, that would be evidence of ineffective assistance of counsel.
Judge Fecteau granted our request for an evidentiary hearing on the videotapes and upon the conflict of interest within Cain, Hibbard. Fecteau made it clear that he considered it very important that these tapes had not been turned over to Baran’s lawyers, and Fecteau seemed extremely unimpressed with Capeless’s argument to the contrary. Fecteau announced his intention to view all of the videotapes in their entirety.
Fecteau set the date of the hearing for January 24-25, 2005. The hearing will begin at 10 a.m. I will send information about the room number when that is known. I hope to see many more of you in January.
Dr. Maggie Bruck is one of the world’s leading experts in child testimony. I was privileged to see her testimony in the Amirault case. I look forward to seeing her in action once again in the Baran case next month.
January 22, 2005. The Northeast is hit by a major blizzard. The Baltimore and Boston airports are closed, making it impossible for Dr, Bruck to come to Boston. The entire Massachusetts court system will be shut down on Monday, January 24.
January 25, 2005. The evidentiary hearing begins. Here is my email report:
Dear Friend of Justice,
This will be a very quick report as I am very tired.
Today’s hearing was rather frustrating. All four witnesses were lawyers, who seem to be trained to only give name, rank and serial number. They essentially had two responses to every question asked them: (1) I don’t know and (2) I can’t remember.
The original plan was to start the evidentiary hearing yesterday with the testimony of Dr. Maggie Bruck. The blizzard, however, made it impossible for Dr. Bruck to get out of Baltimore. And the Massachusetts court system was shut down yesterday in any case. We hope that Dr. Bruck will be able to testify on February 28.
Today’s hearing focused on whether Baran’s right to a direct appeal was violated by a conflict of interest within the Pittsfield law firm of Cain, Hibbard, Myers, and Cook. One of the accusers (who I call “Virginia Stone” at the web site) and her mother retained Cain Hibbard for a civil suit against the daycare, the Early Childhood Development Center (ECDC). The case was assigned to lawyer David Burbank. A few months later, another lawyer (Howard Guggenheim) was retained to sue on Stone’s behalf. Burbank was then assigned by Cain Hibbard to write Bernard Baran’s direct appeal. Baran was never informed that Burbank had very recently been representing one of his accusers.
Three of the lawyers called today were current or past employees of Cain Hibbard. The fourth was Howard Guggenheim.
The first lawyer called was Virginia Stanton Smith. Smith, fairly fresh out of law school, joined Cain Hibbard in September of 1984. Some time after that she became a board member of ECDC. She couldn’t remember how or why she joined the ECDC board, but said that Cain Hibbard encouraged its members to be active with non-profits.
On January 10, 1985 — shortly before the Baran trial began — she wrote a letter on ECDC’s behalf to concerned parents. On February 1, 1985, Smith resigned from the ECDC Board, saying that she had a conflict of interest because she worked for Cain Hibbard. Smith stated that she couldn’t remember who advised her to resign; she couldn’t remember if she attended litigation meetings; she couldn’t remember who was in charge of civil litigation; she could remember if she knew who the child accuser was; she couldn’t remember whether there was media attention on the Baran case; and she couldn’t what the atmosphere was at ECDC at the time of the Baran accusations.
The next memory-impaired witness was Jeffrey Cook, a partner in Cain Hibbard since February of 1984. Cook acknowledged that David Burbank had opened a file on Virginia Stone on February 5, 1985. Cook said that this file — and the separate file on the Bernard Baran appeal — were destroyed sometime between 1992 and 1995. Cook said it was the practice at the time to destroy files of closed cases, when they ran out of storage room.
Cook said he did not attend litigation meetings and was never asked to do any fact finding.
On January 3, 1985, prosecutor Dan Ford sent Cook a letter. Below the heading, it read “Re: Commonwealth vs.Bernard F. Baran, Jr.”. The text was: ” Dear Jeffrey: At your request, I am enclosing herewith a copy of the Search Warrant and Affidavit in the above-referenced matter.” The letter was sent before the Baran trial even began.
Cook claimed to remember nothing about his contact with Ford at the time. When asked about the propriety of a DA sharing data with a law firm preparing to sue, even before the trial begun, Cook took the line that he was just a corporate attorney and hence doesn’t know about such things. Presumably, when Cook attended law school he only was required to take courses in corporate law. And only had to take those sections of the Mass bar exam.
Cook also acknowledged that he personally offered Dan Ford a job with Cain Hibbard when Ford decided to leave the DA’s office.
Cook did acknowledge that attorney-client privilege attaches with the first interaction with a client. And he acknowledged that if Bernard Baran had not been advised that Burbank had represented Virginia Stone, that would be a conflict of interest.
In the afternoon session, Swomley tried to pursue a line of questioning having to do with Cain Hibbard representing a Dr. Douglas McDonald in 1987, an expert witness for the plaintiff in one of the civil suits — the suit of the accuser I call Richard Thompson at the web site. Thompson was in therapy with McDonald and Thompson had recanted his accusation to Thompson.
The judge, however, decided not to allow the line of questioning because it was outside the scope of the question for which he had granted the hearing: the conflict of interest around Cain Hibbard’s representation of Virginia Stone and Bernard Baran.
(During a recess, I asked Swomley about McDonald’s deposition in the civil case. McDonald evidently believed that Thompson’s recantation was evidence that the abuse had occurred, because it showed he was in denial. McDonald is one of those.)
Howard Guggenheim’s time on the stand was brief. Virginia Stone’s mother’s new boyfriend convinced her to switch lawyers, and she hired Guggenheim. Guggenheim filed the complaint on May 16, 1985. He couldn’t remember quite when he took the case, but he received an invoice from Cain Hibbard for document copying costs dated April 16, 1985.
Guggenheim eventually settled the lawsuit after he learned that the client, Virginia Stone, had recanted her accusation to a therapist. Guggenheim on learning this evidently talked to the therapist. But this whole line of questioning was not pursued because it involved hearsay. (That is, Guggenheim would be testifying about what Stone’s therapist told Guggenheim that Stone told her.)
(Incidentally, Howard Guggenheim telephoned me on October 1, 2000. (Or shortly thereafter) I remember the date, because a dreadful article about the case appeared in the Boston Globe on that day. The article mentioned my name and that of my partner Jim, and the street where we live. Guggenheim wanted to know if I knew about his client’s recantation. I said I had, because one of the ECDC civil lawyers also had called me because of the Globe article and had given me information about the case. A couple months later, Jim and I went to the Pittsfield courthouse for ourselves, where we obtained source documentation about this issue and several others.)
The final lawyer to testify was David O. Burbank — who won the prize as amnesiac of the day.
Burbank acknowledged that he had represented Virginia Stone and her mother. But he remembers nothing about it.
He didn’t recall writing to Dan Ford requesting files. He didn’t remember writing to Dr. Jean Sheeley (who did medical examinations of the child witnesses) requesting files. He didn’t recall learning that Virginia Stone had ever accused someone other than Baran, even though that information would have been in the case file turned over to him.
He said he has no memory of Virginia Stone or her mother. But he acknowledged that was his signature on the various documents entered in evidence.
At four o’clock, the judge terminated the session. John Swomley will resume his examination of David Burbank at 10 in the morning on Wednesday, February 2 in Courtroom 204. This should be a morning-only session, as the only other witness to be called will be Bernard Baran himself.
On February 28, we hope to present testimony from Dr. Maggie Bruck. I don’t know the starting time as of yet, but the courtroom will be 203.
January 26, 2005. During a telephone conversation, Baran informs me that he has never met David Burbank and that he had never seen the man before yesterday’s hearing. Baran never, in fact, met any lawyer from Cain, Hibbard, Cook, and Myers, the firm that wrote his pro forma direct appeal.
February 2, 2005. This morning a short hearing was held on the Baran case. Here is my emailed report.
Dear Friend of Justice,
Today there was a short hearing in the Baran case. While the hearing was scheduled for nine a.m., it didn’t actually start until nearly 10 because Baran’s transportation was almost an hour late delivering him to the courthouse. Twenty-one people attended — many more than I had expected considering the limited scope of today’s hearing. The hearing lasted less than an hour and a half.
John Swomley (Baran’s lead attorney) continued his examination of David Burbank, the attorney who wrote Baran’s direct appeal. Swomley is claiming a conflict of interest, because Burbank previously represented one of the alleged victims, and because his firm (Cain, Hibbard, Myers and Cook) represented Berkshire Medical Center (BMC) and Berkshire Mental Health. Both organizations had interests in the Baran case because they were used by the DA’s office for testing and associated doctors were witnesses for the prosecution.
Although a letter from prosecutor Dan Ford to Cain Hibbard partner Jeffrey Cook shows that Ford supplied the law firm with a search warrant and affidavit from the Baran case just before the start of Baran’s trial, Burbank had no memory of documents from the DA’s office being turned over to Cain Hibbard at that time. He acknowledged knowing that Cain Hibbard was general counsel for BMC. He couldn’t recall whether he had informed Baran of this relationship. He acknowledged that he knew (but not well) Dr. Jean Sheeley, a witness for the prosecution.
Burbank could not recall whether he had ever met Baran or had a phone conversation with him. He believed most of the communication with Baran was by mail. Burbank had located the correspondence file and had brought it with him.
Burbank admitted that there was nothing in the correspondence file to indicate that he had ever informed Baran of his representation of “Virginia Stone” or her mother, Marcia Lopez. Nothing in the correspondence file indicated disclosure of the relationship Cain Hibbard had with Berkshire Medical Center or Berkshire Mental Health.
Burbank has claimed that his representation of “Virginia Stone” and Marcia Lopez was brief and that he had done little research on the case. But when he turned over his file to Howard Guggenheim, the copying costs were $28.25. (This sounds like not a lot of money, but in 1985 the common charge for copying was 5 cents a page. $28.25 thus represents nearly 600 pages of documents.)
Swomley asked Burbank about an appeal Burbank had written for the Hodges case. Swomley placed into evidence a brief Burbank had submitted on November 17, 1981. There was a similar conflict of interest in this case, in that the lawyer representing Hodges had previously represented the police chief who was a major witness against him. Burbank’s brief demonstrates that at the time of the Baran appeal Burbank had an excellent command of the law regarding conflict of interest and disclosure.
Burbank argued that his prior involvement with “Virginia Stone” did not prejudice him in the writing of Baran’s appeal. But Swomley demonstrated that Burbank himself had argued that such prejudice is not necessary to demonstrate a conflict of interest.
Burbank insisted that while he had no memory, he felt certain that either he or Lenny Cohen (the lawyer who was at the time supervising Burbank) would have informed Baran of all of the potential conflicts of interest.
The Hodge brief argued that an undisclosed prior relationship was sufficient evidence of conflict of interest.
Burbank was also asked whether at the time of the appeal he had been informed, or had other knowledge, that Leonard Conway (Baran’s trial attorney) had a drinking problem. Burbank said he had no knowledge of that.
Swomley next called Bernard Baran to the stand. Baran testified that he never met Burbank or anyone else from Cain Hibbard. He testified that he had just recently learned that David Burbank had represented “Virginia Stone.” He testified that he had never been informed that Cain Hibbard represented Berkshire Medical Center or Berkshire Mental Health. He had never been informed that a Cain Hibbard attorney (Virginia Stanton Smith) had once sat on the board of the Early Childhood Development Center, the daycare where the crimes allegedly occurred.
The final witness was Baran’s mother, Bertha Shaw. Bertha testified that she dealt with Leonard Cohen and had met Burbank only once. She also testified that she was never informed of any of the conflict of interest issues. She was not permitted to testify about her knowledge of Leonard Conway’s alcohol problems.
The hearing adjourned until 9 a.m. on February 28. The next hearing will take place in Courtroom 203. Dr. Maggie Bruck will be the chief witness and she will be presenting evidence that all of the child-witness testimony was unreliable. She will be presenting excerpts from the videotapes of the child interviews. This will most likely be the only opportunity the general public will have of seeing these interviews and of learning first hand how the accusations against Bernard Baran were manufactured.
February 7, 2005. Bee sees the prison dentist and the dentist tells him that Bee has the worst abcess the dentist has ever seen. Bee had been complaining about the pain for months and had made many previous trips to the dentist. The dentist tells Bee that the extraction has to be done at Shattuck Hospital, and that it will take six to eight weeks to get him an appointment.
February 11, 2005. Baran is put on a regime of antibiotics to control the infection in his mouth.
February 16, 2005. Baran is taken to Shattuck hospital. Dental students worked on him for four hours, shattering the tooth. Finally a dentist takes over, and extracts the tooth quite roughly. The dentist also tells him that the x-rays show a large mass under a different tooth (tooth 17) and that it is something that needs prompt attention. The growth could be cancer. The dentist tells him that further work should be done at Boston University Medical Center, and done as soon as possible.
He is sent back to Bridgewater without pain medication or a prescription for painkillers. He is told to treat the pain with Tylenol and ice. Bee calls in agony, and we contact his lawyer who makes a great many angry phone calls. At 8 in the evening, he is given an injection of Toradol, which is an anit-inflammatory. Hours later he is finally given Percoset.
Whenever Bee is sent out to see a doctor, he has to bring with him a sheet informing the medical personnel of the crimes for which he has been convicted. I think this explains the sadistical medical treatment he has received over the past 20 years.
February 28, 2005. Dr. Maggie Bruck testifies before Judge Fecteau. Click here for my report of the hearing. And here is a far more readable report, by our good friend, Robert Stoesen. John Swomley, Bee’s lead attorney, has also supplied an account.
March 10, 2005. Bee is finally taken to BU Medical Center. He has told that the growth beneath tooth 17 has become larger. He is also told that the dentists at Shattuck punctured his sinus, and that a second major surgery will be necessary. Before the surgery is done, he must return to BU medical for a physical and a stress test to make sure he can survive the needed surgey.
March 16, 2005. Bee does not get taken to BU Medical. The Treatment Center decides that the trip is “unnecessary,” because they can do the physical and stress test themselves. When the BU doctors find out, they say that this is totally unacceptable to them and that if they will only do the surgeries if they can do the physical and stress test. Everything is thus needlessly delayed for an additional week.
March 24, 2005. Bee calls us to tell us that he still hasn’t been taken to the Medical Center. We inform his lawyers, who make a few phone calls. Finally, he is taken that afternoon. He is informed that his problems are far warose than he was told, and that several complicated surgeires may be necessary. He is warned that there is no guarantee of success, and that all sorts of nasty complications may result. He is told that it may take several weeks to assemble the needed surgical teatm.
April 6, 2005. While standing on a chair to clean a cabinet in his cell, Bee’s right arm begins twitching beyond control and he feels paralyzed on that side of his body. He falls from the chair, cutting a gash in the back of his head. He is rushed to Brocton Hospital and the wound is closed with fifteen staples.
April 8, 2005. Bee is sent to BU medical Center to be examined by the surgeon. His CAT-scan comes out normal. It is also discovered that the puncture wound to the sinus is now healing on its own and that one of the planned surgeries may not be necessary.
April 15, 2005. Bee finally has his major oral surgery at Boston University Medical Center. The surgery apparently goes well without complications.
April 21, 2005. A short hearing is held before Judge Fecteau. Here is the report I send by email:
Dear Friend of Justice,
The final evidentiary hearing on the Bernard Baran new-trial motion took
place this afternoon, April 21, before Judge Francis Fecteau, at 2 p.m. at the Worcester County Courthouse. Approximately 30 Baran supporters attended. The focus of the hearing was the competence of Baran’s trial attorney, Leonard Conway. The two witnesses were Baran’s mother, Bertha Shaw, and Bernard Baran himself.
Bertha testified that before Bee’s arrest she had no experience with lawyers and that she found Conway through the phone book. She paid him a $500 retainer. Conway never billed her for anything beyond that, except maybe a couple of hundred dollars.
Bertha testified that during the trial, she could smell alcohol on Conway, and that his eyes were frequently bloodshot and his suit was wrinkled.
One night during the trial, Bertha received a call telling her that Conway was drunk at a bar in a local bowling alley. She went to the bar, saw Conway sitting there and saw that he seemed obviously drunk. She observed him from a distance of about five feet, but she did not speak to him or confront him. He seemed unaware that she was there. She did confront him the next day, but Conway said nothing.
Capeless tried to discredit her by pointing out that Conway was a West Springfield attorney and wouldn’t be in the Pittsfield telephone directory. But on redirect, Swomley established that the Pittsfield yellow pages cover a much broader area than Pittsfield.
He also tried to make it appear unlikely that Conway would not have noticed Bertha is she had seen him at the bar. [As someone who has had some experience with drunks, I find this not surprising at all.] Capeless also tried to suggest that Conway said nothing the next day because he didn’t know what Bertha was talking about. But Bertha wasn’t buying that as an explanation. [And neither am I.]
The judge had been made aware that Bee had recently had major oral surgery, and that he was on pain medication. So before he could testify, he was examined by Swomley and the judge to make sure he was competent to testify. While Bee was obviously in discomfort, he was mentally alert and all parties agreed to his competency.
Bee testified that Conway only visited him two or three times before trial, and that the visits were short visits. When Bee called from the county jail, Conway usually didn’t accept the charges. He spoke to Conway by phone only once or twice. Bee said before his arrest, he had no experience with attorneys.
Bee was arrested, released on bail, and then rearrested a day later. [He hasn't had a day of freedom since then.] At the first arraignment, he was represented by Leonard Cohen as a public defender, for that day only. He had no lawyer present at his second arraignment.
Bee said he first started to worry about Conway at trial when a state witness was called. He couldn’t remember the witness, but thought it might have been a doctor. Conway slid a blank pad of paper towards Bee and said, “I can’t think of any questions for this witness. If you can think of something for me to ask, write it down.”
Bee testified that Conway consulted with no experts, and called no experts as witnesses. When Bee discussed this with Conway, Conway had told Bee “not to worry about it.”
Conway never told Bee that could have petitioned the Court for funds to hire an expert.
Bee testified that Conway was present when his sister’s children were examined by the state and that no accusations were produced. Bee babysat for a number of kids – his sister’s kids, the children of one of the school bus drivers, the nephew of his partner. None of these children made accusations. But Conway called none of them or their parents as witnesses.
Bee said he found out about the alleged victims’ competency hearing only after it had happened. Conway never told Bee that he had the right to attend. Bee never waived his right of attendance.
Many of the accusations against Bee concerned incidents that supposedly happened at nap time, which was when Bee took his lunch break. Bee had informed Conway that he spent his lunch hours with his friend Dolly Haywood, who lived near the school. But Conway never put Haywood on the witness list. Dolly attended the trial every day. Bee finally persuaded Conway to call Dolly, which he did – over the objections of Prosecutor Dan Ford because Dolly wasn’t on the witness list, hadn’t bee sequestered, and had been attending the trial.
Bee was asked about Conway’s drinking. He said that up close Conway smelled of alcohol, especially during the afternoon sessions. One day Conway arrived wearing the same suit, shirt, and necktie he had on the day before, and that he looked like he had slept in his car. [If asked, I'm sure Bee could have described that suit, shirt, and tie in great detail.]
Bee testified that Conway seemed confused during the trial, and seemed to have trouble distinguishing one child from another.
When Conway finally obtained videotapes, Bee looked at the paperwork and saw that the tapes were all edited. When he asked Conway why they were getting edited tapes, Conway said, “I didn’t even notice that.” Conway subsequently made no effort to obtain the unedited tapes.
Capeless cross-examination was fairly short. He asked Bee several times about whether there was a lawyer present at his second arraignment. Bee said there wasn’t. Bee admitted that during the hearings on the new-trial motion, witnesses and lawyers occasionally got the names of the children mixed up. [Actually, no names of children are ever supposed to be used by anyone during the current proceedings.]
Then Capeless suddenly started asking Bee questions about the Ungerer report.
[In March of 1988, Bee was in despair after yet another assault and made a serious suicide attempt, slashing his wrists. He was sent to the hospital, and then to the Bridgewater Treatment Center for evaluation. At the time, the Treatment Center was run by the Department of Mental Health and was a relatively safe and humane place. Bee decided he wanted to stay there. He was interviewed by several doctors, but the stumbling block was that Bee refused to admit that he had committed the crimes for which he'd been convicted. Finally in June of 1988, Bee was interviewed by a Dr. Roland Ungerer. Bee continued to assert his innocence, but Ungerer wrote in his report that Bee "decided to come forth and admit to me ... that he indeed had committed the alleged crimes." My personal belief is that Ungerer did what he felt he had to do to save Bee's life, because he knew that Bee would not have survived much longer in prison.]
John Swomley knew that had he objected to this irrelevant line of questioning, Judge Fecteau almost certainly would have sustained the objection. But Swomley trusted Bee to handle Capeless all by himself. Bee promptly and calmly told Capeless that he had never admitted any crimes to Dr, Ungerer. Capeless repeated the question quickly and calmly. Bee did a fantastic job, even though he was in obvious pain and under heavy medication.
On redirect, Swomley asked Bee a number of questions about the circumstances that led up to his commitment to the Treatment Center. Capeless objected, saying that the line of questioning was irrelevant. Swomley readily agreed that it was irrelevant, put pointed out that it was Capeless who had opened it up, and since it was opened up, Swomley had a right to pursue it.
At this point the Judge intervened and said, “what he [Capeless] opened up should be brought to a conclusion.” Swomley agreed, but Capeless requested a conference at sidebar. Swomley offered to give the judge the Ungerer report and all of the other psychiatric reports leading up to Bee’s commitment, even though these reports obviously have no bearing whatsoever on the question of whether or not Bee received a fair trial. On the very unlikely chance that the Judge sees something of relevance in those reports, Bee could be recalled to the stand. But this is highly unlikely.
Final arguments had been scheduled for May 19, but Capeless can no longer make that date. Fecteau made it clear that he wants the hearings concluded before Memorial Day. Finally, a tentative time and date was selected – two p.m. on May 25. This is the day before Bernard Baran’s 40th birthday.
Finally, Swomley informed the judge that he might be making a request at the next hearing that Bee be released on the day of the concluding arguments, provided the judge is willing to announce a favorable decision before the decision is actually written. Judge Fecteau indicated that he would be open to hearing the argument. While it is quite unlikely that the Judge would release Bee immediately at the conclusion of the hearings, he does have that power. (Capeless could, of course, appeal the decision.)
It would be wonderful if Bee could receive his freedom this year as a birthday present. But regardless what happens next month, let us hope that this fine young man will soon be free among us.
April 22, 2005. Bee is taken back to Boston University Center. The good news is that the biopsy shows that the cyst was benign. The extraction wound, unfortunately, is not clotting. It is packed with gauze impregnated with a catureizing solution. Bee is told he will be brought back within a few days.
May 12, 2005. DA Capeless informs the judge and Baran’s attorneys that he will not be available on May 25 and that the final arguments will have to be rescheduled.
June 16, 2005. Concluding arguments are finally held before Judge Fecteau. [Click here for a report of the hearing.] Baran’s fate is now in Fecteau’s hands.
September 6, 2005. Dusty Bahlman, in a colum for the Berkshire Eagle, reports that Joan Simpson Burns, a Baran juror, regrets her verdict and her influence on the other jurors.
September 16, 2005. The Eagle publishes a letter from juror Burns. The text is as follows:
Saturday, September 17
To the Editor of THE EAGLE:- As a member of the jury that convicted Bernard Baran, I would like to elaborate on some of Dusty Bahlman’s comments in his column of Sept. 6.
A broader perspective on the Bernard Baran case would have to include the ways in which he was trapped by converging cultural forces.
1) In 1985, fears about molestation of young children in day-care centers were being aroused, bolstered by rushes to judgment on all sides.
2) There was much more hostility then directed at gay persons.
3) Baran came from the less-privileged part of our society and was personally vulnerable (and he was not helped by his defense attorney).
4) It now appears that much evidence might have led to a not-guilty verdict was not made known to the jury.
I have left out specifics of his case because these have been replayed already in the press and before the judge now being asked to declare a mistrial some 20 years after the fact. I was belatedly made aware of much would have influenced the jury at the time of his trial and about which we were totally ignorant.
The question for me at this time is not one of guilt or innocence — I have no way of knowing the answer to that question. What I do know now is that his trial was grossly unfair for many reasons. [My emphasis.]
JOAN S. BURNS
Williamstown, Sept. 9, 2005
March 28, 2006. Bee’s very good friend David is released from the Treatment Center. The time becomes even harder for Bee to do.
June 13, 2006. Judge Francis Fecteau grants Bernard Baran a new trial. The central issue is ineffective assistance of counsel. But Judge Fecteau qualifies this by saying: “In addition, some errors discussed under this heading may overlap or be more properly considered as newly discovered evidence. For example, there remains the unanswered question as to whether the unedited videotapes were ever made available to defense counsel. If the full tapes had been made available to trial counsel but he never viewed them, such a circumstance is suggestive of ineffective assistance of counsel, whereas if the tapes were not made available, the isses of newly discovered evidence and the withholding of exculpatory evidence by the prosecution are thus raised.” [My emphasis] The evidence that these tapes were deliberately withheld is, in my opinion, overwhelming. These tapes in fact were withheld for nearly twenty years. Nevertheless, I applaud Judge Fecteau for taking this cautious approach, given that the errant prosecutor, Dan Ford, is now a sitting judge himself. I believe that Fecteau’s conservative approach maximizes the chances of his decision standing up on appeal.
June 22, 2006. Judge Fecteau sets Baran’s bail at $50,000.
June 30, 2006. Bail is posted at Berkshire District Court. Baran is released to the arms of his family. At 4 p.m. he participates in a press conference at his lawyer’s Boston office and does admirably. John Swomley then treats him, his family, and a few close friends to an amazing dinner in Boston’s Quincy Market.
July 17, 2006. DA David Capeless files a motion for a gag order, requesting the Court to order Baran’s attorneys to stop talking about the case.
August 1, 2006. The ACLU of Massachusetts announces that they will be defending Baran’s attorneys against Capeless attempt to gag them. They file this response.
August 28, 2007. After fourteen months, David Capeless finally files his appeal of Fecteau’s decision. The appeal was substantially written by assistant District Attorney Joseph A. Pieropan. The main argument: “Trial counsel did not provide ineffective assistance by not retaining an expert witness to offer an opinion regarding allegedly suggestive techniques used by the Commonwealth or by failing to view the unedited videotapes of the child victims pre-trial statements because the trial testimony of the children abundantly demonstrated their contradictory statements and hestiancy to accuse the Defendant of abusing them.” [My ephhasis] The DA thus argues that the weakest point of their case — the testimony of the alleged victims — is in fact a reason to send Baran back to prison. They grant that the testimony was not credible, but assert that doesn’t matter because the jury believed it. The testimony was not merely incredible. It was not reliable and should never have been admitted in the first place.
October 29, 2007. Baran’s lawyers file this response to the District Attorney’s brief.
November 5, 2007. Harvey Silverglate and James Tierney publish an article in Massachusetts Lawyers Weekly criticizing an uncontitutional gag order imposed on the Baran attorneys by Judge Jeffrey Locke.
November 12, 2007. Baran and his lawyer appear on the Boston TV Show, Greater Boston.
November 13, 2007. DA Capeless files a motion demanding sanctions against Harvey Silverglate and the other Baran attorneys. This move by Capeless was largely in response to an article co-written by Silverglate that appeared in Massachusetts Lawyers Weekly. DA Capeless has apparently never been informed of the existence of the First Amendment.
November 28, 2007. The ACLU of Massachusetts files this response to Capleless’s motion.
January 16, 2008. The Massachusetts Appeals Court schedules a hearing on Capeless’s motion to deny Baran a new trial. The hearing will take place on February 12 at 9:30 a.m. in Boston Massachusetts at the John Adams Courthouse, Courtroom Four, Third Floor.
February 12, 2008. The Massachusetts Court of Appeals holds a hearing on the Baran Case. Read my report.
May 15, 2009. After 15 months, the Appeals Court decides in Baran’s favor and affirms his right to a new trial. Here is the decision: Appeals Court Decision
The judges’ conclusion:
IV. Conclusion. We do not lightly affirm the order granting a new trial. For that reason, we have painstakingly examined the record, the motion judge's decision, and the legal issues on which it is based. The charged offenses are grave and we are mindful that the passage of so much time will impose heavy burdens on all concerned in the event of a retrial.(55) At the same time, it cannot be said that the defendant received anything close to a fair trial. Preserving public confidence in the integrity of our system of justice must be our paramount concern notwithstanding the costs our decision today might occasion. "Our desire for finality should not eclipse our concern that in our courts justice not miscarry." Commonwealth v. Amirault, 424 Mass. at 660 (O'Connor, J., dissenting).
The motion judge did not abuse his discretion in granting the defendant a new trial and vacating the convictions and sentences.