Evidentiary Hearing: 03/21/05
The Baran evidentiary hearing continued this morning, March 21, before Judge Francis Fecteau at the Worcester County Courthouse. The hearing began promptly at 9 a.m. About 35 supporters attended.
DA Capeless began by getting Dr. Bruck to admit that she is not a clinician and does not work with kids who have actually been abused. This is a standard prosecutorial tactic to try to discredit experts who are scientists. While the tactic may be successful before juries, I suspect intelligent judges are not so easily misled.
Capeless tried to establish that Bruck's "studies have not involved real life," but only "staged conditions," and that they have only concerned first interviews. Bruck stated that Capeless was wrong on both points.
Capeless cited a study discussed in Bruck's book that suggested that only a small percentage of children could be led to make false accusations of sexual abuse. Bruck countered that this was not true and that her book, in any case, was ten years old.
Capeless next suggested that the children in the Baran case didn't fit what Bruck had described as the usual pattern. Bruck disagreed. She pointed out that both John Larson and Richard Thompson were initially silent about abuse. She also said that current research shows that when abused children are directly asked they usually disclose. Bruck said that the children said they were scared only after being repeatedly told that they were scared by the interviewers.
In response to a question, Bruck said that she recalled no direct disparagement of Baran by the interviewers. [There had been such disparagement, and Swomley later established this on cross-examination.]
Capeless asked a lot of questions about what materials she had received from Swomley, trying to imply that significant material had been withheld from her by the Baran legal team. Capeless also suggested that Bruck's testimony about the book Are You My Mother? as the probable source of Gina Smith's stories about the baby bird had been prompted by Swomley.
Capeless contended that all of the children had made prior disclosures of abuse. Bruck countered by saying, "Allegedly." Bruck said she didn't know the circumstances of the prior interviews and that reports and statements made by interviewers have been shown to be unreliable.
Capeless then centered on the "index child," Peter Hanes. Bruck asserted that Hanes had made no reliable disclosures. Capeless implied that Bruck said this because she believed Baran innocent. Bruck countered that her testimony has nothing to do with what she does and does not believe.
Capeless made the claim that the tapes had been produced only to record what the children had already disclosed, and that all of the children had made multiple disclosures. "Some of them told three or four people," he said.
Swomley on redirect established that Bruck had asked for all materials on the children prior to the interviews and wanted nothing post-interview. She agreed that Swomley had given her everything that she had asked for.
Bruck stated that without the first accusation from Peter Hanes, parents would not have questioned their children and there would have been no further accusations. Bruck asserted that none of the accusations were spontaneous. She also said that she interpreted a child refusing to accept an invitation to disclose as a denial. She reasserted that suggestibility is extremely dangerous when interviewing children.
Swomley asked Bruck whether it was important to know that Baran assisted children in the bathroom as part of his regular duties. She said, "Absolutely." Young kids are touched in all sorts of places in all sorts of ways by adults. It is important to know what the touching means to a child. According to a police report, Gina Smith said, "he touched my privies sometimes" in response to a leading question. (Did he touch your fanny?) If Gina had actually made this remark, it is impossible to know what she meant by it.
Swomley asked Bruck about the Gail Goodwin experiment that seemed to show that it was difficult to get a child to make a false accusation of sexual abuse. [This was the experiment that Capeless asked about under cross examination.] Bruck explained that in this experiment, children were asked questions about abuse "out of the blue" with no context and without suggestibility. In the Baran case, children were given anatomical dolls, made to play with the dolls, and then asked very suggestive questions. Bruck pointed out that Goodwin did later work and Goodwin's results now agreed with Bruck's.
Swomley refreshed Bruck's memory by showing her parts of the videotape transcripts where Baran was called "the scary guy" and the "scary monster" by the interviewer.
Bruck elaborated on her statement that interviewer reports and statements are not reliable. She said that 20-minute interviews often got summarized in 8-line reports that left out everything that led up to the alleged disclosure. She cited one report in the Baran case where the report was obviously wrong when compared with the actual tape.
Bruck was asked about her research on suggestive interviews that are followed by non-suggestive interviews. She said that suggestive interviews can result in long-term tainting of child testimony. She said that the Baran interviews were very suggestive and resulted in statements reminiscent of abuse.
Swomley asked Bruck about her information concerning the book Are You My Mother? Bruck said that the possible connection to the book had occurred to her while reviewing the Gina Smith material, and that Bruck had asked Swomley to ask Baran if this were a book he had read to the children.
DA Capeless then called Elizabeth Keegan of the DA's office to the stand as a fact witness. Keegan is the Berkshire County District Attorney's Director of Victims' Services and has been for 22 years. She was the original Berkshire victims' advocate, and had been working for the DA for about one year when the Baran case began. Keegan said that the children in the case had made disclosures during previous interviews, and that the videotapes were to be presented to the Grand Jury instead of having the children testify. She said that while videotaping may have been used on one subsequent occasion, it did not become the standard practice. Keegan said that the prosecutors met with the children perhaps three times prior to trial, but there had been no mock hearings. Keegan said that she had been present during these trial-preparation sessions.
Swomley on cross-examination established that Keegan was not a mental-health professional. He asked about what her last training had been, but Keegan provided no answer. Keegan said that the DA's office used essentially the same interviewing techniques that were used in 1984. Swomley asked her what the last book she had read about child interviewing, but she couldn't recall. Swomley asked about articles, and she said that she had read articles provided to her by the SAIN project. She explained that SAIN was an acronym for the Sex Abuse Investigative Network.
Upon requestioning, Keegan admitted that the office had changed techniques since 1984 in that they didn't use dolls anymore.
Swomley asked her, "Why don't you use dolls anymore?"
First Keegan just said, “It wasn't my decision.” And then she said, "Times change."
Swomley asked, "How have times changed? But Keegan would not answer.
He asked her if she had done any reading, and she didn't answer. She said she didn't recall having any input into the decision not to use dolls. Swomley countered that as Director it would be odd for her to have no input into such an important decision.
Keegan tried again. This time she said, "The dolls weren't necessarily the best for every child."
When Swomley pressed her about what she meant by this, she said, "Some children didn't like the dolls. The dolls weren't the same as the dolls they used at home."
Throughout this entire exchange, it seemed obvious to me that Keegan knew that the reason the dolls are no longer used is that they have been shown to produce false accusations. But come hell or high water, she wasn't going to admit it. In my opinion, she made a damn fool of herself.
Keegan also said that the decision to drop the practice of videotaping children had been made by the District Attorney.
Keegan was asked about her role with the children in the Baran case. As she seemed to have little recall, Swomley refreshed her memory with portions of the transcript where DA Dan Ford said that the children had come to rely upon her, that she rendered moral support, and that the children could look at her in the courtroom and know that she was there for them.
Keegan said that she had initially worked with DA Gerard Downing on this case. She said that she talked with parents and DSS workers. She said that she had some memory of some of the events of 20 years ago, but not much. She repeated her assertion that there had been no mock trials.
She had no memory that Peter Hanes had accused someone other than Baran of sexually abusing him. She had no memory of the custody battle between Hanes's mother and DSS.
Swomley pointed out that Hanes' therapist, Anna Pollock, had written in a report that Hanes had attended five weeks of mock court before the trial began. Keegan admitted that the children were brought to the courtroom and that Dan Ford would ask questions similar to what would be asked at trial. But Keegan insisted, that this was "trial preparation" not "mock court." But she was unable to explain the precise difference.
Keegan testified that she had no idea where the Virginia Stone videotape is, where it was kept, or why it wasn't with the rest of the videos. She had no idea why Trooper Robert Scott was selected to interview Stone. [The other children were interviewed by Jane Satullo and Pat Palumbo.] She said that decision would have been made by DA Roberto. She claimed to know nothing about Stone's accusation of sexual abuse by "Chino."
She didn't know who decided to edit the videotapes. She didn't recall any of the children ever accusing someone else or saying that nothing had happened. And that it didn't cross her mind that someone might be falsely accused.
Swomley asked if the children were ever given things to make them more comfortable. She said no. But the children were routinely given police badges at the start of the interviews. She said that children were never offered prizes, doughnuts, or cheeseburgers at McDonalds. She said that this had never been the policy of the DA's office.
[The legal team has materials in its position to dispute this claim.]
After Keegan's testimony, a few other pieces of business were taken up. While the Grand Jury minutes are still missing, Capeless asked to have the judge sign an order for the Grand Jury Clerk's report, which would at least contain a list of all witnesses who testified. Swomley supported this request and the judge agreed to issue the order.
The judge asked that the videotapes be made an official part of the record, and both lawyers agreed.
The judge promised to rule soon on the request for records from Berkshire Medical Center and Berkshire Mental Health.
On Swomley's Freedom of Information Act request that Capeless has not complied with, the judge suggested that Capeless turn the disputed material over to the judge and the judge would then decide what material to give to Swomley. Both lawyers agreed to this procedure.
The judge granted a motion for one more evidentiary hearing to be held on April 21, at 2 p.m., in Hearing Room 12. The witnesses will be Bernard Baran and his mother, Bertha Shaw, and the testimony will concern the incompetence of the trial lawyer, Leonard Conway.
And on May 19, at 2 p.m., the lawyers will make their final arguments and Judge Fecteau will begin the process of deciding whether or not to grant the motion for a new trial.