Motion for an Evidentiary Hearing



Berkshire, ss.                                                                        SUPERIOR COURT DEPARTMENT

No. 18042 through 18051,                                                                                                 and 18100, 18101   





MASSACHUSETTS              :


v.                                 :


BERNARD BARAN             :






This court should grant an evidentiary hearing on defendant’s new trial motion. A defendant is entitled to a new trial “if it appears that justice may not have been done.” Mass.R.CrimP. 30(b). While a motion for new trial may be decided on affidavits alone, when the motion raises a substantial issue, “the better practice is to conduct an evidentiary hearing.” Mass.R.CrimP. 30, Reporters’ Notes, Mass. Ann. Laws, Rules of Crim. Procedure, at 392 (2002), citing Blackledge v. Allison, 431 U.S. 63, 74-76 (1977); Commonwealth v. Stewart, 383 Mass. 253, 259 (1981). Whether or not a motion raises a substantial issue involves a two-pronged test which considers “the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue.” Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). Thereafter, a judge should weigh “whether holding a hearing will add anything to the information that has been presented in the motion and affidavits.” Id. citing Commonwealth v. DeVincent, 421 Mass. 64, 68 (1995).

There is no doubt that the issues raised in the new trial motion are serious, for purposes of showing that they present substantial issues. The same issues defendant raised have been the basis for evidentiary hearings before: ineffective assistance of counsel, Commonwealth v. Licata, 412 Mass. 654 (1992), deliberate falsehoods by the police–in this case, Det. Peter McGuire deliberately  and repeatedly keeping the “Chino” allegation from defendant and others involved in the investigation, Commonwealth v. Pignato, 31 Mass.App.Ct 907 (1991), disputes between experts, Commonwealth v. Meggs, 30 Mass.App.Ct. 111 (1991), failure to obtain an independent medical examination, Commonwealth v. Britto, 433 Mass. 596 (2001), counsel’s conflict of interest, Commonwealth v. Croken, 48 Mass.App.Ct 32 (1999), and newly discovered evidence Commonwealth v. DeLong, 60 Mass.App.Ct 122 (2003). These issues of constitutional significance are, without a doubt, serious enough to meet the first prong in obtaining an evidentiary hearing. Goodreau, 422 Mass. at 348.

Defendant also meets the second prong of having made adequate showings with respect to these issues. Defendant has conducted lengthy and detailed discovery which has uncovered a great many relevant and credible documents that support his claims. Defendant has produced evidence of counsel’s ineffectiveness through the trial transcripts and other documents which would have led any competent counsel to have acted otherwise; defendant has produced concrete evidence that he never received available, exculpatory evidence such as the DSS 51A reports that showed two of the victims had accused persons other than Mr. Baran; defendant has produced offers of proof from experts and citations to learned treatises which indicate that the children’s testimony was tainted by suggestive interviewing techniques, evidence which the jury never heard; defendant has produced letters on firm letterhead that show his appellate counsel may have had a conflict of interest by representing both him and one of the child witnesses in a related civil case; and defendant has produced newly discovered evidence such as the fact that some of the children have since recanted their allegations in reliable settings (e.g. therapy). All of these allegations are supported by credible documents, such as agency reports, police reports, letters copied from files, and affidavits.

While defendant has raised a great many meritorious arguments, clearly not every issue merits oral testimony. That said, some issues require testimony which would not only bolster the claims made but add evidence not contained in the affidavits and appendix. See DeVincent, 421 Mass. at 68. At the hearing, defendant would present several witnesses.

Maggie Bruck, an expert in suggestive child interviews, would testify extensively about the suggestiveness of the interview techniques used by the Commonwealth in eliciting disclosures from the children. Ms. Bruck’s testimony serves two purposes. First, with respect to the newly discovered unedited videotapes, Ms. Bruck would be able to detail the impropriety of the questions, interpret the children’s responses, and generally elaborate on the interviewing process in a more effective way than by affidavit. Ms. Bruck’s testimony is essential in proving defendant’s point that the evidence in this case was simply unreliable and tainted, and its use created a high probability that there has been a substantial miscarriage of justice. Second, Ms. Bruck’s testimony will substantively show how she, or a similar expert, could have rebutted the Commonwealth’s own experts at trial based solely on the information known to trial counsel, such as the edited grand jury videotapes; this testimony will demonstrate why trial counsel was ineffective in not hiring his own expert to conduct an independent medical examination and testify. Finally, live testimony from Ms. Bruck will be more useful and accessible to a fact finder than a very lengthy affidavit. During her testimony, she would be able to play the videotapes, pause and start them at relevant times, and describe the interactions more cohesively than if she had to submit her testimony in writing. See Affidavit of Maggie Bruck.

Defendant will also call witnesses which can explain the missing interview tape of Girl E. To date, defendant still has not received the videotaped interview of Girl E, even though he believes it exists. There is no documentation concerning whether the tape was made and, if it was, why it was withheld from defendant. Two possible sources of this information are Trooper Robert Scott and Detective Peter McGuire. These two officers were involved in Girl E’s investigation. Det. McGuire was the first officer to speak with Girl E and even took her to get a physical examination. He was also the person who recruited Trooper Robert Scott to interview Girl E. Therefore, between the two of them, they may be able to explain the whereabouts of the video. If it turns out the video cannot be located, then their testimony is all that is available in terms of reconstructing what took place during Girl E’s interview. Trooper Scott told defense counsel that he was not willing to sign and affidavit, but would testify if subpoenaed. See Affidavit of John Swomley.

In terms of the missing grand jury transcripts, Judge Daniel Ford, the then ADA who prosecuted defendant’s case, is the only witness who can testify about what transpired at the grand jury. As detailed in the Supplemental Memorandum in support of the Motion for New Trial, the grand jury minutes cannot be located. All that is left is the edited videotapes and the transcript of one witness. Defendant has argued that his indictments should have been dismissed because they were obtained in a misleading manner. However, the only way to confirm that there was not more evidence presented to the grand jury is to call Judge Ford. Judge Ford’s testimony is the closest defendant can come to augmenting the grand jury record already in his possession. Incidentally, Judge Ford may be able to add substantive testimony concerning the missing videotape of Girl E.

While there is somewhat of a paper trail concerning Cain, Hibbard’s conflict of interest, there is still much that can and should be supplemented. Defendant’s counsel has spoken with Howard Guggenheim, the attorney which represented Girl E in her civil case against the day care center. Mr. Guggenheim took the case over from Cain, Hibbard. His recollection of their involvement is detailed and, most importantly, unbiased. His testimony is the only way in which to unravel the events surrounding Cain, Hibbard’s conduct.

Apart from Mr. Guggenheim, Jeffrey Cook, one of defendant’s appellate counsel, and a current partner at Cain, Hibbard, may also be able to offer insight into this matter. Mr. Cook did not author any documents (in defendant’s possession) connecting his firm to Girl E’s case. However, a letter from then ADA Daniel Ford to Mr. Cook indicates that before defendant’s trail even began, Mr. Cook was interested in his case. The letter, dated January 3, 1985, indicates that ADA Ford sent Mr. Cook–who at that time had no connection to defendant whatsoever–a copy of the search warrant and affidavit from defendant’s investigation. This information seems to indicate Mr. Cook and his firm were investigating defendant’s case, likely on behalf of Girl E. Mr. Cook’s testimony would clarify what his exact interest was in defendant’s case so early on.

Finally, defendant himself would testify in order to elaborate upon how his trial counsel ineffectively represented him. Only defendant was privy to conversations and other interactions not captured on any transcript or other record.

The foregoing reasons support Defendant’s motion for an evidentiary hearing.


Date:                                                                           __________________________

John G. Swomley

BBO #551450

227 Lewis Wharf

Boston, MA 02110