New Trial Summary
COMMONWEALTH OF MASSACHUSETTS
Berkshire, ss. SUPERIOR COURT
No. 18042 through 18051, and 18100, 18101
BERNARD F. BARAN, JR.
MOTION FOR NEW TRIAL
REQUEST FOR HEARING
BERNARD F. BARAN, JR.hereby moves this Court, pursuant to Rule 30(a) and (b), Mass.R.Crim.P., the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article XII of the Massachusetts Declaration of Rights, to grant him a new trial. Mr. Baran’s motion is based upon the Memorandum of Law in Support of Motion for New Trial and the Appendix (and affidavits contained therein) filed concurrently herewith. As grounds for this Motion for New Trial, Mr. Baran avers:
1. On January 30, 1985, Mr. Baran was convicted by a jury of three counts of rape (18048, 18050, and 18100) and five counts of indecent assault and battery (18043, 18045, 18049, 18051, and 18101) of children who were enrolled in a day care center where he worked as a teacher’s aide. The next day, Mr. Baran was sentenced by the Honorable William Simons to three concurrent life terms on the rape convictions and to 8-10 years on the indecent assault and battery convictions, also to be served concurrently. His conviction was affirmed on appeal. Commonwealth v. Baran, 21 Mass.App.Ct. 989 (1986). Further appellate review was denied. Commonwealth v. Baran, 397 Mass. 1103.
2. Mr. Baran was deprived of due process because his conviction was based on unreliable evidence. There were three types of unreliable evidence:
a. The testimony of the six child witnesses, who were between the ages of three and five, was unreliable because:
i. Four of the six children were not competent witnesses. A witness is competent to testify in Massachusetts if he (1) possesses the ability or capacity to observe, remember, and give expression to that which he has seen, heard, or experienced, and (2) comprehends the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and in a general way, belief that failure to perform the obligation will result in punishment. There was no evidence that four of the six children satisfied the second prong of the competency test. The error was compounded by the fact that none of the children were properly placed under an oath to tell the truth. Each child was asked only to “promise to tell what happened.”
ii. All of the children’s testimony was tainted by suggestive interview methods that created a risk of distorting the children’s recollection of actual events and grossly leading questions.
b. Numerous out-of-court statements made by the children were improperly admitted through the testimony of adult witnesses.
i. The out-of-court “disclosure” made by the first complainant was improperly admitted through his mother’s testimony under the excited utterance exception to the hearsay rule.
ii. Numerous statements that exceeded the scope of the children’s testimony were improperly admitted as fresh complaints. Additional statements that did not allege sexual assault and/or were not fresh were improperly admitted as fresh complaints. Multiple fresh complaint witnesses testified to bolster the credibility of each child. Proper and timely limiting instructions were not given regarding the limited use of fresh complaint testimony, thus creating a risk that the jury would use the evidence substantively.
iii. Mr. Baran was deprived of his right to confront the child witnesses because multiple adult witnesses repeated unreliable out-of-court statements made by the child witnesses.
c. Expert witnesses improperly vouched for the credibility of the child witnesses.
i. Rape crisis counselor Jane Satullo made the following improper statements:
(1) “I think it’s possible to present an idea which the child has not consciously thought about before and – but it’s also my experience that any child who is able to tell a story and repeat its details over a period of time then there is validity to that story.”
(2) “Children at the age of which we’re talking about in order to repeat a story and to tell the details again, the same it needs to be a true story. That’s one of the things we look for often with children is a story that holds up over time with the same facts. It’s hard enough for adults to repeat a story with details. It really is impossible for a child to do that.”
(3) “[T]here haven’t been any cases of young children falsely accusing somebody.”
ii. Child psychiatrist Suzanne King made the following improper statements:
(1) “[A] child of her age is not cognitively able to describe in graphic detail some sexual event unless she actually experienced it.”
(2) “[The child’s] nightmare suggested a preoccupation with injury. A child of this age would not exhibit such a preoccupation unless she had actually suffered some sort of injury.”
(3) The child’s play scenario was “an enactment in her play of what she says has actually occurred. What she says actually occurred in terms of being sexually abused.”
(4) The emotional trauma that the child exhibited could not be the product of suggestion “[b]ecause of the anxiety that she showed, the emotional overlay is not something that she could make up.”
3. Mr. Baran was deprived of effective assistance of both trial counsel and appellate counsel.
a. Trial counsel was ineffective because he:
i. Failed to investigate, to seek discovery, or to properly prepare for trial, as well as failing to competently present a defense. Among the facts that were never developed were the following:
(1) The panic and fear that consumed the day care community in the wake of the first allegations against Mr. Baran.
(2) The improperly suggestive interview techniques that were used and the evolution of the children’s stories. Trial counsel did not view the videotaped interviews of the children until the third day of trial, after he had given his opening statement.
(3) The first complaining family had serious credibility problems. The mother and her boyfriend were homophobic and had previously complained to the day care center about Mr. Baran because they thought he was gay. They had a history of severe drug abuse and mental health issues. The mother was fearful that she would not regain custody of her children if she did not testify in the manner expected by the prosecutor.
(4) The second complaining mother was predisposed to believe that her child had been sexually abused because her own mother did not believe her when she was almost raped by an uncle at the age of 14.
(5) After one of the children initially denied being abused by Mr. Baran, she “disclosed” that Mr. Baran did the same thing to her that her mother’s boyfriend did in a motel in West Springfield.
ii. Failed to move for a mistrial when required findings of not guilty were entered on the counts involving the first complainant who tested positive for gonorrhea of the throat.
iii. Failed to assert Mr. Baran’s right to a public trial.
iv. Failed to assert Mr. Baran’s right to a probable cause determination with respect to a sixth alleged victim, who was added to the case on the first day of trial.
v. Failed to seek to exclude inadmissible, irrelevant and prejudicial evidence, including the fact that the first complainant tested positive for gonorrhea of the throat when there was no evidence that Mr. Baran ever had gonorrhea.
vi. Failed to consult with experts and failed to challenge the testimony of the Commonwealth’s expert witnesses in any meaningful way.
vii. Failed to request proper limiting instructions.
b. Appellate counsel was ineffective because he failed to raise the issues of the ineffectiveness of trial counsel and prosecutorial misconduct.
4. Mr. Baran was deprived of a fair trial because of prosecutorial misconduct. The most egregious behaviors included:
a. Suppression of pretrial DSS investigations that were conducted pursuant to claims by two of the alleged child victims that their mother’s boyfriends did the same thing to them that Mr. Baran supposedly did, at least one of which was substantiated and referred to the District Attorney for prosecution.
b. Suppression of at least nine additional DSS reports on additional allegations made against Mr. Baran within two weeks of Mr. Baran’s arrest. All were reportedly referred to the District Attorney for prosecution but none were prosecuted.
c. Suppression of police reports that confirmed that the first complaining family made a previous complaint about Mr. Baran because they thought he was gay and felt that he should not be working with children.
d. Coaching a clearly incompetent child witness to just say “yes” when the Clerk asked if she promised “to tell what happened.”
e. Eliciting improper, irrelevant, and prejudicial evidence.
f. Making an improper and highly inflammatory closing argument calculated to evoke sympathy and to inflame the jury. The argument ended with the following plea - “I beseech you – I beg you – think of those children and bring back a verdict of guilty on each and every one of these charges.”
5. Mr. Baran has learned the following information, none of which was discoverable at the time of trial and all of which casts grave doubt on the justice of Mr. Baran’s conviction.
a. The pediatrician’s description of what she observed during a gynecological examination as “a ruptured hymen” is now recognized, based on recent medical research, to be a normal anatomical variation in the genitalia of a prepubescent girl.
b. Three of the six alleged victims recanted: two told their therapists within a few months of Mr. Baran’s conviction, and a third did so in front of a high school class.
c. The adult who made the first report to the police recanted.
d. In addition to the second complaining mother who told investigators she was molested as a child, a different mother was also molested as a child, was emotionally unstable, and was described by a treating therapist as having a problem with “overidentification” with her son, who was one of the children who recanted within a few months of the trial.
6. Based upon the foregoing claims, each of which is discussed more fully in the accompanying Memorandum of Law in Support of Motion for New Trial, Mr. Baran was deprived of his basic constitutional right to a fair trial, and justice was not done.
7. For all the reasons enumerated above, and for all the reasons amplified in the accompanying memorandum, Mr. Baran respectfully requests that this Honorable Court :
a. Vacate his conviction and grant him a new trial; and
b. Grant him an opportunity to be heard and to present evidence as soon as practicable.
BERNARD F. BARAN, JR.
By his attorney,
John G. Swomley, BBO #551450
Swomley & Associates
227 Lewis Wharf
Boston, MA 02110-3927
Dated: _______________, 2004.
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of this “Motion for New Trial” and unredacted versions of the accompanying “Memorandum of Law” and “Appendix” were delivered to David Capeless, Berkshire County District Attorney, 7 North Street, Pittsfield, MA 01202 on June 16, 2004.
John G. Swomley