Final Arguments — 06/16/05

June 16, 2005.

[The material in brackets is my editorial comments.]

About 35 people attended the hearing, which took place in Hearing Room 12 and commenced at 2:15 p.m.

The first argument was made by Baran's lead attorney, John Swomley.

Swomley explained that there are two categories of issues that have been raised in this appeal (1) those raised before the discovery motion was granted on September 11, 2003. Swomley would address only the issues that have been raised post discovery,

The most important issues arise from the videotapes, which were not turned over until September 17, 2004. [They were first requested by Swomley on December 4, 2000.]

The contents of the videotapes support several important issues, including (1) newly discovered evidence, (2) prosecutorial misconduct, i.e. withholding of exculpatory evidence, and (3) ineffective assistance of counsel.

The question we musk ask, said Swomley, is What if a competent trial counsel had access to this evidence and had made use of it?

Competent counsel could have shown that the children were interviewed in a suggestive manner. Counsel could have called an expert witness. And, since the tapes contain many instances where the children deny abuse or allege abuse by another, counsel could have filed a McCarthy motion to quash the indictment. [I haven't researched what a McCarthy motion is.]

Competent counsel could have used the videotapes to impeach the testimony of the child witnesses and their parents. Baran's actual counsel did not even make use of the edited videotapes.

Swomley argued that other newly discovered evidence could have been effectively used by competent trial counsel.

Competent trial counsel could have used the information that the first accuser had accused someone else of sexually abusing him. This information should have been turned over to the defense, even if the alleged abuse had occurred after the alleged abuse by Baran. The allegation was made and investigated prior to the beginning of Baran's trial and the child accuser was in government custody at the time. Yet this information was never given to trial or subsequent counsel.

Swomley detailed other areas of newly discovered evidence.

It was alleged at trial that one of the girls had damage to her hymen that indicated trauma. It is now known from subsequent research that the condition exhibited by this girl is very common in children who have never suffered abuse or trauma.

We now know that the first accusing family had complained to the school that they didn't want a homosexual teaching their child, that the complaint was made over a month before this family made their abuse complaint, and that the complaint about Baran's homosexuality was discussed by the Board of the school. But the minutes of this meeting were never turned over to trial counsel. This is important, because the mother of the second child complainant was a member of that Board and also a friend of the wife of police Captain Dermody. This mother phoned Dermody when she heard that the police were investigating Baran.

Returning to the videotapes, Swomley pointed out that this second complainant eventually developed an elaborate story involving Baran scooping blood out of her vagina with a pair of scissors. Had trial counsel access to the videotapes, he would have seen that there was nothing remotely resembling this allegation on the tapes. The allegation was developed much later, the result of extensive "play therapy." It is now well known that children can make up trauma stories when no trauma occurred.

Swomley mentioned that the children were subjected to suggestive puppet shows on at least two or three occasions. These puppet shows resulted in a number of accusations, most of which resulted in no indictments. Swomley argues that the reports of these accusations should have been turned over to trial counsel, because they constitute clear evidence of the hysteria that was reigning at the time.

Swomley pointed out that another female alleged victim had made a very credible accusation of abuse by her mother's boyfriend. But the evidence of this allegation was never turned over to trial counsel.

On the issue of ineffective assistance of trial counsel, Swomley argued that since Baran had tested negative for gonorrhea, competent counsel would have kept out the evidence that the first accuser had tested positive. Trial counsel had no reasonable strategy consistent with allowing that evidence in. The trial transcript contains a sidebar where trial counsel alleges that he might have witnesses that would testify that they had heard the first accusing mother accuse her own boyfriend of having gonorrhea. But the judge shut down that line of inquiry. Because of that, trial counsel had no valid reason for allowing the testimony concerning the first accuser's gonorrhea.

[My personal belief is that this child never had gonorrhea. The test used at the time had a false-positive rate of more than one-third when used on children.]

The case against the first accuser was eventually thrown out because he refused to cooperate on the witness stand. Swomley pointed out that according to the Garcia decision, in a multiple-victim case, the taint of just one of the alleged victims is sufficient to warrant a new trial.

Swomley argued that Baran's appellate counsel had a conflict of interest, in that he had also represented one of the alleged victims in a civil suit. Swomley also pointed out that the prosecutor, Dan Ford [now a Superior Court judge], had improperly turned documents over to Cain Hibbard [the appellate law firm] before the beginning of the trial. Not only was this improper conduct on Ford's part, it demonstrates that Cain Hibbard's interests had allied with the alleged victims even before the trial began. As evidence that the conflict impeded Baran's appeal, Swomley said that there was nothing in the appeal about the fact that a child had accused her mother's boyfriend, even though we know that Cain Hibbard was in possession of the relevant documents.

Swomley concluded his oral argument, but requested that Harvey Silverglate be given five minutes after Capeless had argued. This request was granted.

[David Capeless made the sort of arguments that may well have been very effective before a legally uneducated jury. My hope is that they carried no weight before an intelligent and competent judge, well versed in the legal issues. Mr. Capeless made a great many Alice-in-Wonderland claims.]

He began by invoking the pernicious "finality” doctrine, enunciated in the 1997 decision in the Amirault case. Essentially, this doctrine claimed that the public's right to "finality" should take precedence over concerns about justice.

Capeless next dismissed (with a straight face) the claims that homophobia and/or hysteria might have played a significant role in this case.

Capeless dismissed the recantations of three of the witnesses, saying the recantations were based on hearsay. (E.g., reports of their therapists.)

Capeless argued that all of the issues in this case were dismissed by the Appeals Court in 1986, and therefore cannot be raised again.

Capeless argued that the withheld DSS reports were inculpatory, not exculpatory. He even claimed that one of the reports was of an allegation of abuse that had occurred four month before the initial accusation in the case. [This statement by Capeless was false and an obvious and deliberate attempt to mislead the judge. The DSS report in question occurred after the child had been exposed to one of the highly suggestive puttpet shows. The Baran lawyers will write the judge to point this out.]

[Throughout these hearings, Capeless has consistently operated on the theory that the prosecutor has the right to make the decision about what is and is not exculpatory and that the prosecutor has no obligation to turn evidence over if the prosecutor does not consider the evidence exculpatory. But this is not the law.]

Operating on this theory, Capeless claimed that it was proper for them to withhold the evidence that two victims had accused others because they had also accused Baran.

Capeless also argued that the prosecution had not deliberately withheld the unedited videotapes because the documentation with the tapes Baran’s lawyer received clearly indicated that they had been edited.

Capeless also again argued that the unedited videotapes were irrelevant, because the children had allegedly made disclosures before they were videotaped.

[This is one of Capeless's more bizarre Alice-in-Wonderland arguments. It is well-known because of the work by Maggie Bruck and other researchers, that the most reliable interview is the first interview, and that subsequent interviews become increasingly contaminated as the children acquiesce more and more to the suggestions of the interviewers. Capeless is arguing that exactly the opposite of this happens, at least in this case. Capeless claims that all of these children made credible disclosures, and then backed away from these disclosures more and more as they were interviewed. This is his explanation of why the children make no accusations on the videotapes.]

Capeless also argued that the videotapes were irrelevant because the children had been no more forthcoming on the witness stand than they had been on the videos, and yet the jury convicted anyway.

[This argument is so bizarre that I was initially surprised that Capeless made it. I first obtained the trial transcripts in July of 1998. When I read them, I was appalled at the children's testimony. Ford has to ask leading question after leading question, desperately trying to get the child to give the right answer. Sometimes he succeeds; sometimes he doesn't. (All of the children's testimony is available at the Baran web site.) Capeless made this argument because, under the law, a jury's decision has to be considered infallible even it cases where it is obviously idiotic. But by calling attention to the children's trial testimony, Capeless underlines the fact that a gross miscarriage of justice occurred in this case.

I once told Baran's mother that I was appalled that a jury convicted on the basis of the children's testimony. She told me that she believed that they hadn't even bothered to listen to it. What the jury saw were adorable (and admittedly scared) toddlers in their Sunday best. Jurors cried while they testified. That's why he was convicted. But I think the jurors would have had a radically different opinion of what went on had they seen the unedited videotapes — tapes in which the children were obviously not scared, regardless of how many times Jane Satullo and the other inquisitors insisted that they were.]

Capeless next tried to discredit the testimony of Dr. Maggie Bruck.

Capeless first argued that most of Bruck's work was done after Baran's conviction, and therefore her discoveries would not have been useful to Baran's trial counsel.

[Capeless here again enters the realm of Alice in Wonderland.

Dr. Bruck was the expert witness on the Amirault appeal, and the argument was precisely that Bruck's work constituted newly discovered evidence. But the Massachusetts Supreme Court disagreed and said that it was not.

The Court was incorrect. Nevertheless, prosecutors can't be permitted to have it both ways and claim that Bruck's work is not newly discovered when it suits them but is newly discovered when it does suit them.]

Capeless claimed that Dr. Bruck was obviously biased, and that it was significant that she only viewed the videotapes and not the alleged pre-taping disclosures or the trial testimony.

[But Capeless misunderstands — perhaps deliberately — why Bruck was called as an expert witness. The thrust of her testimony was that the tapes themselves would have been of immense use to a competent trial attorney. It was thus entirely appropriate for her to confine herself to analyzing the videotapes themselves.]

Capeless repeated his Alice-in-Wonderland argument that the tapes were irrelevant because they were not the first interviews.

Capeless argued that permitting the gonorrhea testimony represented a "reasonable strategy" on the part of trial counsel.

He also argued that no decision should be made by the Judge concerning the Grand Jury proceedings, since the minutes of the Grand Jury proceedings have been lost. [There is also an Alice-in Wonderland ring to this argument, since it was the District Attorney's office itself that lost or destroyed these minutes.]

After Capeless concluded, Harvey Silverglate made a short but effective argument.

He clarified that in this case it was the videotapes themselves that constitute newly discovered evidence. He said it was irrelevant whether or not the children testified before the Grand Jury, The unedited videotapes show the process that produced the accusations, and that neither the Grand Jury nor the trial jury could have understood how unreliable was the testimony of the children without actually seeing the unedited tapes.

Harvey responded to Capeless's argument that trial counsel knew he was received edited tapes. Harvey said that this constituted proof of gross incompetence by trial counsel. Harvey asked, What lawyer would be satisfied with received an edited witness statement? Yet that is what he did by accepting the edited videotapes.

Harvey responded to Capeless's quote from the 1997 Amirault decision. The theory of finality, as stated by then Chief Justice Charles Fried, was so obviously wrong that the Court felt compelled to revisit and modify it in their 1998 decision in the same case. In 1998 the Court reaffirmed that finality does not carry the day in cases where there is a substantial risk of a serious miscarriage of justice, In light of the second ruling, nothing has been changed in Massachusetts regarding the doctrine of finality.

Harvey reiterated that Dr. Bruck had been called to demonstrate that a competent trial attorney would have made good use of the unedited videotapes. One cannot look at these tapes and say with a straight face that they are irrelevant. He said that the motives of the prosecutor in withholding these tapes are not terribly relevant. He said that the exculpatory value of the tapes was "in the stratosphere."

Capeless's only response to Harvey was to reiterate that the judge should make no ruling regarding the Grand Jury process because the minutes are missing.

Harvey concluded by saying that the main point is that the trial jury did not understand the etiology of the children's testimony.

At the conclusion of the arguments, Judge Fecteau assured us that he would reach a ruling as quickly as possible. But he warned us that he has a massive amount of material to read and evaluate, and that he also has a great many other commitments.

Judge Fecteau impresses me as an intelligent and fair man, and I take him at his word. While I am as impatient as anyone (with the exception of bee and his family) for Baran's release, I also want Fecteau to take the time he needs to write the best possible decision, a decision that will hold up even in the Commonwealth of Massachusetts.

-Bob Chatelle