John Swomley's Comments on the Baran/Bruck Hearing

March 12, 2005

Bee had asked if I could give a little summary of the proceedings, from a lawyer’s perspective. So I’m happy to oblige.

Monday’s hearing with Dr. Bruck went really well. She is a knowledgeable, articulate, and experienced witness-and it showed. I was personally incredibly impressed by her credentials, and hopefully the Judge was too.

I had seen the videotapes many times before yesterday. Even after the first time, I was left with the impression that something wasn’t quite right. I knew that the evidence of the children’s repeated denials had
never really seen the light of day; I knew that the interviewers used leading questions; and I knew that Bee did not do what these videotapes supposedly accused him of doing.

Enter Dr. Bruck. Her testimony was so vital in helping place everything in context. Even though I had seen the tapes multiple times, after her overview of the science, it was as if I was seeing them for the first time there in court. Everything she described leapt out of the screen. For example, the interviewers’ bias was palpable-any statement inconsistent with their theory of events was ignored, any action was interpreted as evidence of fear and confusion (when it clearly was not), and most every question was asked in order to elicit a specific response, not an honest one.

Also, her research on anatomically correct dolls was powerful. Instinctively, I don’t want to believe that children can so easily be distracted and manipulated, so to speak, by inanimate objects. Yet they are. Dr. Bruck’s explanation that children cannot comprehend the symbolism of the dolls, and instead just play with them, immediately put the videos into perspective. I thought one of her best moments was when she highlighted the sea of dolls surrounding one of the children.

The biggest issue in these types of cases always is how to explain to the jury-to anyone-how a child could make these allegations and know about this conduct unless it really happened to him/her. There are always three answers. First, they know because it actually happened. Second, they know because someone has done this to them before, but just not the person who now stands accused. Third, they are not telling the truth.

In Bee’s case, we know that some of the children had been previously been abused. So understanding why they made accusations is somewhat straight forward. But, before Dr. Bruck’s testimony, it was a little more difficult to explain why those who had not been previously abused were lying. And indeed, even using the term “lying” is inaccurate. As Dr. Bruck stated, these children weren’t lying, they were being compliant: they responded to the adults the way they thought the adults wanted them to.

This is, again, a rich contribution that Dr. Bruck has offered in this case. It’s a tough sell, to a jury or a judge, to call little children liars. Bee’s trial counsel made a feeble attempt and failed miserably. Dr. Bruck gave us the perspective and vocabulary to explain how to reconcile both Bee’s innocence and the children’s statements, all without criticizing or impugning the children.

The only disappointing result of the hearing was that we did not finish. Bee cannot seem to catch a break. First the storm cancelled his first hearing and now a mix-up delayed this one. That said, we are hoping that
an end is in sight. We have a tentative date of March 21 to continue the hearing. Should that not go forward, we will proceed on April 21. At the conclusion of Dr. Bruck’s testimony, we will argue about why we need more hearings (i.e. that certain issues are still alive and require further evidentiary hearings). The remaining issues are, essentially, ineffective assistance of counsel and the grand jury process. A hearing on ineffective assistance would require Bee to testify. It is unlikely Conway is healthy enough to testify himself. The grand jury process would require Daniel Ford, now a judge, to testify.

Because Judge Fecteau and DA Capeless want to likely avoid calling a sitting judge, they may look for other ways around this: Capeless can stipulate to certain facts, the court can make findings adopting certain
facts, or the court can rule on the issues before it and reserve these hearings should they become necessary after an appellate process. The other possibility is that the judge may rule that we do not deserve a hearing on these issues. However, given Judge Fecteau’s ongoing curiosity and attention to this matter, this seems like the least likely.

In any event, however that gets resolved, we have set another tentative date of May 19 for final arguments. The judge seems anxious to speed this process along and we are happy to indulge him.

In the meantime, we all appreciate the overwhelming support from everyone.


John Swomley