"What I do know now is that his trial was
grossly unfair for many reasons."
On June 20, 2006 Bernard Baran was granted a new trial. He was released on bond ten days later. But the DA refused to give up for the next three years.
While practically everyone knows about McMartin and some of the other day-care-panic cases of the 80s, few have heard of Bernard Baran, the first day-care worker convicted. Baran — a working-class gay man from Pittsfield, Massachusetts and an aide at Pittsfield’s Early Childhood Development Center (ECDC) — was arrested on October 6, 1984 and charged with sexually assaulting two 3-year-olds. He was then 19 years old. He is now 42.
Baran — abandoned by his father when he was three — dropped out of school after 9th grade and went to work at ECDC at 16. Bernie was openly gay, which outraged the parents of one of the boys in his care. (Click here to hear the mother express her feelings about gay people in a sworn deposition. The accusing stepfather eventually came to doubt Baran’s guilt. Click here for an excerpt from his deposition. The two depositions paint an interesting picture of the moral character — or lack thereof — of the couple who destroyed Bernard Baran’s life.) They complained to ECDC that no ninth-grade dropout homosexual would help take care of their son. At the time, the McMartin case was major national news and accusations of sexual abuse of pre-school children at the Fells Acres Day School in Malden, Massachusetts were dominating the New England news. (Gerald Amirault had been arrested one month before Bernie.) A few weeks later, this couple — who were drug addicts well-known to the authorities for their history of violence — called the police to accuse Baran. The police went to ECDC, telling them that Baran was under suspicion.
The school’s new Coordinator was alarmed by the police visit. She called a friend, the mother of a girl who had attended the school. The mother, a self-identified survivor of sexual abuse, began urgently interrogating her daughter, specifically about Baran. The mother then called the police to accuse Bernie as well. He was arrested and panic ensued.The boy tested positive for gonorrhea. The test used has since been shown to have a high false-positive rate. (According to a 1988 US Center for Disease Control report, by W. Whittington et al, in more than a third of laboratory samples of children indicating positive for gonorrhea, the actual organism turned out to be something else.) Moreover, someone other than Baran may have sexually molested the boy, who was often placed in foster homes because of his abusive and chaotic home life. (The child sometimes came to school with bruises.) According to a Department of Social Services (DSS) report, the boy made to one foster mother a spontaneous, detailed, and credible disclosure of sexual abuse by one of the mother’s boyfriends (someone other than the stepfather). This incident occurred before Baran’s trial began. DSS investigated and decided that the accusation was substantiated. But they waited until Baran was convicted before notifying the DA’s office, as mandated by law.
The trial transcript also contains a sidebar wherein Baran’s lawyer says he might produce witnesses who overheard the boy’s mother accuse the stepfather himself of having gonorrhea. If the mother believed that her son had been exposed to gonorrhea, she may have accused Baran in order to keep the authorities from finding out what was going on in her home. (In any case, Bernie tested negative, and an exhaustive search produced no evidence that Bernie had ever been treated for gonorrhea.)
Both the stepfather and the boyfriend, on separate occasions, were hospitalized for stab wounds to the chest occurring after fights with the mother. (The stepfather required open-heart surgery.) Incredibly, both men claim they had stabbed themselves. For more information about this troubled family, click here.
Although the police and the prosecutor were more than familiar with the boy’s disreputable and irresponsible parents, they nevertheless considered them more credible than Baran, who had never in his life been in legal trouble. I’m certain that this was because Bernie is gay.
Prosecutor Dan Ford certainly didn’t hide his hatred of gay people. He intimidated Baran’s boyfriend, threatened him with prosecution, and repeatedly called him a “fag.” Ford also illegally told Baran’s boyfriend that he was not allowed to speak with anyone else, including Baran’s attorney. (We are quite certain that Ford unethically intimidated other potential witnesses for the defense as well. And if threatening, abusing, and inflicting homophobic slurs upon a potential defense witness to insure silence does not constitute gross prosecutorial misconduct, then the term has no meaning. For more details, see this affidavit.)
Almost all of the 160 ECDC children were interrogated and four more accusations followed. (Some of the parents felt that the accusations against Baran were so ridiculous that they refused to allow their children to be questioned.) The interrogated children were subjected to interviews employing puppet shows and anatomically correct dolls — suggestive techniques now rarely used because research has shown that they produce mainly false accusations. (Click here for more information on how the children were interrogated.) One girl, a few months after Bernie’s conviction, even told her therapist that nothing had really happened and that her mother (a drug-addicted prostitute and a friend of the initial accuser’s mother) had told her to say that it had so they could get a lot of money. This recantation, discovered by an insurance investigation, was reported to DSS but not to Baran’s attorney. (The two mothers sued the school for several million dollars. The mother of the recanter died of AIDS and her daughter’s recantation was discovered by her attorney before the trial began. The insurance-company lawyers destroyed the credibility of the other mother on the witness stand.)
Baran’s current attorneys also discovered — in 2005 — that this girl had made a spontaneous and credible accusation of sexual abuse by one of her mother’s boyfriends. The documents were withheld from Baran, his trial lawyer, and his appellate lawyers.
No adult at the school witnessed anything suspicious occurring between Bernie and the children. Aside from the dubious testimony of the children, and the unreliable gonorrhea test, the only physical evidence came from a doctor who claimed that one girl had a 1-2 millimeter (about 1/20 of an inch) tear on her hymen. Subsequent research has shown that such hymeneal notches are common in girls who have not been abused. (According to a four-year study made public in 1988 by Dr. John McCann of the University of California’s School of Medicine, such irregularities occur in 50 to 60 percent of non-abused girls.) Furthermore, according to the insurance-company report, this girl had also been observed inserting objects into her own vagina subsequent to observing the birth of a sibling. (One must wonder what sort of parents would force a two-year-old to witness a birth.)
Unlike some of the other day-care defendants, Bernie couldn’t afford an adequate defense. (A poor gay man is doubly expendable.) No Bill of Particulars was ever provided to the defense. Baran turned down a deal to plead guilty in exchange for a five-year-sentence. After he refused, he was quickly tried. Because of the seating arrangement, (Bernie sat behind the lawyers’ table and the children were on the floor in front of the table) Bernie couldn’t even see what was going on when the children were being interrogated. (Click here for a short excerpt of the testimony.) The boy who was cited in the original accusation refused to testify, and screamed and shouted obscenities until he was removed from the court. Baran’s sister told him that she heard DA [now Judge] Daniel Ford tell a little girl witness to just say yes to his questions and they would go to McDonald’s afterwards. According to the trial transcript, Ford also used the McDonald’s bribe when kids were on the witness stand. Ford used anatomically correct dolls in the courtroom. The children, when they bothered to respond at all, answered mainly with nods or in monosyllables. Whenever a child gave the wrong answer, Ford persisted until they gave the right one. If this failed, he suggested that the children wouldn’t cooperate because they were in terror of Baran. The judge routinely overruled the defense’s objections.
Ford, obviously playing to the jury’s homophobia, in his closing argument said, “Bernard Baran could have raped and sodomized those children whenever he felt a primitive urge to satiate his sexual appetite.” On January 30, 1985, after only 3 1/2 hours of deliberation, the jury convicted Baran on 8 counts. Before sentencing, an ECDC mother pled for Bernie, calling him a “miracle worker” who had “started my son on the path of a normal childhood.” Bernie was sentenced to 3 concurrent life terms. Baran, who weighed around 100 pounds at the time of his conviction, suffered his first rape four days after being sent to Walpole. (Click here to read Baran’s own account of what it’s like to enter Massachusetts’s Attica.) Baran was shuffled around the Massachusetts prison system, where he suffered stomach-churning physical, sexual, and emotional abuse. During his first four years, he was raped and physically assaulted 30-40 times. He has suffered serious eye injuries and many broken bones.
Bernard Baran is a forgotten man. Partly because he is gay, he has never attracted the support that has benefited many of the falsely accused families. And because he has been convicted (albeit falsely) of sexually abusing children, gay leaders shun him because they fear accusations of condoning sex between adults and children. The press has either ignored him or treated him unfairly. When I visited him for the first time, I asked him about visiting rules. “I don’t really know much about them,” he said. “No one ever comes to see me except my mother.”
Baran had never had good legal assistance. This finally changed when Boston attorney John Swomley agreed to help. Swomley is not an appellate attorney. But he found several experienced and highly competent appellate attorneys who prepared the successful new-trial motion. Many of the best and most experienced lawyers in the nation are now aware of this injustice, and we may make use of their knowledge in the future.
Judge Francis Fecteau granted the new-trial motion in June of 2006. DA David Capeless immediately announced his intention to appeal the decision. He finally did so over a year later. The Appeals Court heard the arguments in February of 2008. They issued a very good and strong decision on May 15, 2009. Faced with the prospect of more embarrassing disclosures of Judge Daniel Ford's reprehensible conduct, DA Capeless finally dropped all charges on June 9, 2009.
Over the past three decades, suggestive and coercive child-interviewing techniques, combined with junk science, have sent innocent people to prison and destroyed many families. If we wish to live in a just society we must revisit all of the dubious convictions resulting from the child sex-abuse panic. It’s frightening to realize that we live in a society where such terrible things can happen to a decent and gentle person such as Bernard Baran. But what would be even more terrible would be to live in such a society where few were willing to try to help. We hope to hear from those who will help us to rectify these grave miscarriages of injustice. (You can email me, Bob Chatelle, at email@example.com. I also have a blog, The Friends of Justice) I first learned about this case from this article on Jonathan Harris’s web site.