Proposed Finding of Fact



No. 18042 through 18051, and 18100, 18101




v. :




Based upon the evidence, both documentary and testimonial, I make the following facts findings of fact:

1) In 1984, Bernard Baran worked at the Early Childhood Development Center ("ECDC").

2) On October 6, 1984, Mr. Baran was arrested on two counts of indecent assault and battery against two children from ECDC, Boy A and Girl B. Appendix to Motion for New Trial pg. 99-100.[1]

3) The first family to bring accusations against Mr. Baran were Boy A's family's. A-94-95.

4) Previously, Boy A's father had filed a complaint with ECDC objecting to Mr. Baran being allowed to work with children because he was a homosexual. A-94.

5) On Septebmer 12, 1984, the ECDC Board of Directors discussed Mr. Baran's sexuality and his possible termination. A-431.

6) On October 5, 1984, Boy A's family's contacted the police to report that Mr. Baran had molested their child. A-94-95.

7) That night, Girl B's mother got a telephone call informing her about the pending investigation against Mr. Baran. Tr. 4/131-32, 4/144-45. Girl B's mother was on the ECDC board when the complaints were made about Mr. Baran's homosexuality. Tr. 4/132. Additionally, Girl B's mother had previously been abused herself. A-474. She contacted her friend, Captain Dermody, and reported that her daughter may have been molested. A-96-97. Captain Deromdy in turn contacted two other detectives who, with Department of Social Services ("DSS") worker Brian Cummings, eventually visited Girl B's residence that same night at 10:50 p.m. Id.

8) Mr. Baran was arrested the next day. A-99-100.

9) Beginning on October 9, 1984, the two accusations became public and local and statewide newspapers began reporting the case. See generally A-164-170.

10) The DSS held a puppet show at ECDC on October 11, 2005. Though no transcript exists, it is known that the puppet show was attended by many of the children who were the subject of DSS investigations, including some of the children that testified against Mr. Baran.

11) Around the same time, ECDC sent several letters to parents about the accusations, arranged for various parent and child support groups, and advised parents about the threat of gonorrhea. A-630-647.

12) Following these events, there were four more children who made allegations against Mr. Baran, which the police investigated, and who eventually testified at trial: Girl E, Boy C, Boy D, and Girl F.

13) Additionally, there were at least nine more children who made disclosures which were reported to DSS and investigated but never resulted in criminal charges.

14) The six children who testified at trial were repeatedly interviewed by various persons leading up to trial. At an evidentiary hearing arising out of the Motion for New Trial, Dr. Maggie Bruck, a leading authority in the area of suggestibility, memory, and child interviews addressed the techniques used to interview the children. She has authored or co-authored over 74 articles, 20 book chapters/monographs, 5 editorials/reviews, and 2 books—one of which, Jeopardy in the Courtroom: A scientific analysis of children's testimony, won the William James Book Award from the American Psychological Association. She has extensive experience teaching both undergraduate and graduate level courses/seminars. She has served on various editorial boards, including her current appointment as associate editor of the Journal of Experimental Child Psychology. She has submitted affidavits in several state and federal courts concerning the same or similar subject matter currently before this court. She is currently a professor in the Department of Psychiatry and Behavioral Science at Johns Hopkins University and an adjunct professor in the Department of Psychology at McGill University. Her testimony adduced the following salient facts and conclusions, described in paragraphs 15-22 below, which I find to be true:

15) Studies show that children who have been abused might initially be silent. However, when properly and directly asked about their experience, they will provide statements. If they deny in those situations, the denial should be considered reliable.

16) During the time of Mr. Baran's case, authorities believed silence and denial were not indicators that nothing happened; rather, they believed they were products of fear and embarrassment.

17) There are proper and improper methods for interviewing children. Improper methods will elicit inaccurate and false reports while proper methods should not.

18) Some techniques for properly interviewing a child are as follows: An interviewer should try to get a child to say in his own words what happened; an interviewer must be neutral; an interviewer should not guide a child down a certain path or towards a specific conclusion; if a child says something, the interviewer should test it to verify why it was said and if it makes sense.

19) Improper techniques can lead to unreliable statements. These techniques are numerous, and were used in Mr. Baran's case. It is improper, for example, to use leading questions and not allowing a child to say what occurred in his own words. Repeated interviews are also discouraged because a child is led to believe that the answers s/he has already given are incorrect; eventually s/he assents to the interviewers version of events. Atmospherics set a negative tone; this includes telling the child that they must have been "scared," that the suspect is a "bad boy," and that things are "not their fault." Selective reinforcement also taints the interviews, such as telling a child he is "good" only after the child reveals something but castigating him by, for example, calling him "rude" when he says nothing.

20) In addition to improper techniques, other factors can lead to false accusations. It is problematic to have parents present. For one, multiple interviewers can gang up on the child. Additionally, children want to please their parents. If they make a false accusation, it is not necessarily that they are lying but, rather, that they are being compliant.

21) The use of anatomically correct dolls is an extremely problematic technique which often produces false accusations. It was originally believed that the dolls would help children who were incapable of expressing themselves or simply too afraid to do so. However, it is now believed that children merely use the dolls as play objects. They cannot differentiate between playing and demonstrating an actual occurrence. In Mr. Baran's case, anatomically correct dolls were used in the interviews of each child who testified at his trial.

22) The biggest problem, however, might be that children, especially 3-4 year olds, cannot understand the concept of symbolism. They cannot understand that the dolls are supposed to represent themselves or even someone else. They simply lack the cognitive ability to make that connection. Dr. Bruck played a video which demonstrated this problem. The video showed children receiving a routine doctor's examination. The doctor repeated certain actions with each child, such as using a stick to tickle the child's foot, or using a stethoscope to listen to the child's heart. The entire examination was videotaped. A day or two later, the children were once again videotaped, this time being interviewed with the help of anatomically correct dolls. When asked to demonstrate with the dolls what the doctor had done to them, the children showed actions consistent with sexual abuse, yet nowhere resembling their interactions with the doctor. One child, for example, was seen jamming the same stick used to tickle her foot into the dolls vagina. The video clearly demonstrates that the use of anatomically correct dolls not only fails to act as a good vehicle for children to express abuse but, also, results in serious, yet untrue, allegations of abuse.[2]

23) In short, Dr. Bruck's testimony demonstrates that the children who testified against Mr. Baran at trial were subjected to repeated and improper suggestive interviewing techniques which tainted their testimony.

24) Evidence documenting the use of these techniques is primarily found in unedited videotapes never before turned over to Mr. Baran's counsel.

25) According to Elizabeth Keegan, the victim witness advocate at the time of Mr. Baran's investigation, the videotapes were originally recorded with the intention of substituting them in lieu of the children's live testimony, both at the grand jury and at trial. While the children did eventually testify at trial, they did not testify at the grand jury.

26) At the grand jury, Assistant District Attorney Ford presented edited versions of the videotaped interviews. See Videotape "Grand Jury Presentation." The full videotapes contain ostensibly the entire interviews conducted with the children at the District Attorney's office on the date in question. Some interviews last up to forty (40) minutes. See Videotaped Interviews of Boy A, Girl B, Boy D and Girl F; Transcripts of Videotapes.[3] The grand jury version, however, shows only a small portion of each of these entire interviews. See Grand Jury Presentation Video; Transcript of Videotapes.

27) Prior to trial, counsel, Leonard Conway, made a specific request for discovery of the videotapes. See Defendant's Motion for Discovery and Inspection. In a letter acknowledging receipt of the tapes by Leonard Conway dated January 22, 1985, it is apparent trial counsel only had access to the edited versions. See Supplement to Motion for New Trial, Exhibit 4.[4] The letter states that Mr. Conway received an edited version of Boy C's interview and the "Grand Jury Presentation" tape of Girl B, Boy A, Boy D, and Girl F. Additionally, Mr. Baran himself spoke with Mr. Conway about only having access to the "edited" videos. SMNT-Exhibit 5 (Affidavit of Bernard Baran).

28) Finally, at sidebar, Assistant District Attorney Ford acknowledged that the copies which he had given Mr. Conway showed the date of the interview in the video itself before each interview. Tr. 4/8. The dates appear only in the edited versions shown to the grand jury but not in the unedited versions. See Videotapes.

29) The trial transcripts reveal that Attorney Conway never viewed the edited tapes until the third day of trial. See Tr. 4/10.

30) Mr. Baran was not given access to the unedited tapes until recently. His current counsel made a motion for copies of the videotapes on December 4, 2000. At that time, District Attorney Gerard Downing was prosecuting this matter. On January 22, 2001, I ordered the Commonwealth to file a certificate as to the existence of any videotapes or any objections by February 1, 2001. The Commonwealth subsequently requested three extensions.

31) On October 24, 2001, a hearing was held before me regarding the videotapes. The next day, I issued a Second Interim order, noting that one videotape was found in the possession of the Clerk's office and that the Commonwealth had located two tapes which had been shown to the grand jury. I agreed Mr. Baran was entitled to the videotapes, but asked counsel to first confer and prepare a protective order. Mr. Baran's counsel was unable to get DA Downing to sign a protective order and on April 4, 2002, submitted it directly with the court.

32) Over the course of the next year and a half, Mr. Baran attempted to get copies of the unedited videotapes. The three tapes which were located were being held by the clerk's office and it was not until I finally wrote a letter to the clerk's office on July 23, 2004 directing them to send the tapes to Mr. Baran that they did so.

33) DA Downing continued to look for the unedited videotapes to no avail. Tragically, DA Downing passed away on December 15, 2003.

34) At that point, David Capeless was named acting District Attorney and he took over for Mr. Downing. After taking some time to familiarize himself with the case, DA Capeless represented that the unedited videotapes were not with the file but that he was doing what was reasonably feasible to find them. Mr. Baran's counsel continued to seek their production. Finally, on September 17, 2004, during a discovery hearing, DA Capeless delivered five unedited videotapes of the children's interviews (Boy A, Boy D, Boy C, Girl F and Girl B). DA Capeless stated that he found the videos in a box of old DUI tapes.

35) The unedited versions contain statements in which the children deny that Mr. Baran had done anything to them and statements where they accuse other persons of abuse. They also contained statements which accused other people of witnessing these alleged acts—evidence which counsel could have used to investigate the veracity of the allegations. Lastly, they also contain examples of the improper techniques detailed by Dr. Bruck, such as selective reinforcement.[5]

36) For example, the transcript of Boy A's testimony is over forty-five (45) pages long, yet the edited tape covers roughly two (2) pages. The edited versions omit images such as Boy A unable to stay still and answer any questions by the interviewer and the fact that his parents had to come in and try to calm him down. They also omit images of BOY A being completely preoccupied with toys, donuts, and soda. Indeed, just before the part of the interview shown to the grand jury, in an example of selective reinforcement deemed problematic by Dr. Bruck, Boy A is encouraged to answer through being offered donuts:

Q: I’m just going to pull this over here, all right? You move it over there. Hold onto it. Well, maybe you better have some good donut to eat, and then we’ll talk about it, okay?

A: Look, it's [inaudible] some chair?

Q: You want something that’s under the chair? What do you want?

A: More.

Q: You want some more donut? Okay, we’ll get some more donut in a minute. Are you going to go get it now?

A: Yes.

Q: Okay.

Q: Can you bring it back over here?

A: Yeah.

Q: Okay. Oh, my goodness, Boy A. That’s a great big box of donuts. Okay. Why don’t you pick one from over here. You want to put it in your bag?

A: Another one in here. I have to–

Q: You have to finish that one first? Okay. I’ll tell you what. You finish that one. I’m going to save these right here. In fact, we’ll have him sit right on top of it. How is that?

A: Um– [inaudible] [more].

Q: That’s okay. We’ll clean it up later, it’s all right.

A: I want this. Where is that, another towel?

Q: I don’t know if we have another one. Let’s see if we can just clean up with this one. That’s a good job. That’s good, Boy A. Okay, good. Let’s see. Okay.

A: Which one?

Q: Oh you want that one? Which one?

A: This one.

Q: Okay.

A: Oh God it's thick.

Q: Um-hum. Can I… Can you hold onto this? There you go.

A: To that chocolate?

Q: Oh yeah, and this is yellow, right? Can you tell me why your daddy took you to the hospital, or do you have to eat first?

A: I have to eat first.

Q: You have to eat first, okay. We’ll let you eat first.

A: What is that stuff on it?

Q: I think it’s, I don’t know. What do you think it is?

A: Peanuts.

Q: I think you’re right, Boy A. I think it is peanuts.

A: And now eats it.

Q: I think I’ll let you finish eating your donut first.

A: See that stuff right there?

Q: Yeah, what’s that?

A: It’s spilled beer.

Q: Say that again.

A: It’s beer.

Q: Oh, it’s beer, and that’s the foam on the beer? It is. It’s root beer.

A: Yeah.

Q: Yeah. Taste good?

A: I like root beer.

Q Um-hum.

A: Us got some.

Q: Say that again for me?

A: Us got some more. Us got these donuts.

Q: That’s right. You’ve got a whole box full of them, don’t you?

A: Put them right here.

Q: You want them right there? Okay. Okay.

A: Thanks.

Q: You’re welcome. Do you think this guy had to go to the hospital? Yeah. Tell me how come he has to so?

A: I think that girl has to.

Transcripts pg. 6-9.

37) All the edited versions omit statements of denial and statements indicative of suggestiveness, as demonstrated by the following excerpts:

38) BOY A:

Q: Yeah. But if you could tell me a little bit more about what Bernie did to you.

A: He didn’t do nothing.

Q: Yeah. I know, you showed me. You showed me where he pulled down your pee pee stick.

A: He didn’t now.

Q: He didn’t do it now, though. Did he, did he do it more than one time, do you know?

A: No.

Transcripts pg. 14.

DAD: No, you’re a good kid. So can you tell her if Bernie said anything, or if you said anything?

A: I don’t know.

Q: You don’t know. Okay. Maybe you’ll remember some other time and you can tell me. Maybe you don’t remember right now. Maybe it will come back to you, what Bernie said to you. When you went to the doctor yesterday, was your pee pee okay?

A: Yup.

Transcripts pg. 21.

MOM: Boy A, you can’t remember anything he said to you? Did he say wake up, or– He didn’t say anything at all?

A: No.

Q: He just went and did what?

A: Nothing.

Q: And after he pulled, after he pulled on your pee pee, did he tell you anything then? Did he give you anything?

A: No.

Q: No. Did he give you a box of donuts?

A: What?

Q: Did he give you a box of donuts?

A: No.

Q: No. Did he give you anything or say anything?

A: He gave us a birthday.

Transcripts pg. 28-29.

DAD: Look for a second. We want to know what you told us.

MOM: We can’t remember everything.

DAD: Remember?

A: No.

DAD: Now, did Bernie touch you?

A: No.

Transcript pg. 32

DAD: Is Bernie bad?

A: No.

Transcript pg. 34.

39) GIRL B:

Q: [ ] Did you play, did you play a game called “The Touching Game” at ECDC?

A: No.

. . .

Q: Yeah. So I was remembering, I know a game that I used to play called “The Touching Game”. I wonder if you ever played that at school.

A: I didn’t.

Q: You don’t remember that game?

A: We didn’t do it.

Q: You didn’t?

A: No.

Transcript pg. 7-8.

Q: Yeah, he just pulled them down. Were some other children around when he did this to you? Were there other kids of other people in the room?

A: Um-hum.

Q: Yes?

A: Just two people.

Q: Two people?

A: Two teachers.

Q: Two teachers? Can you remember their names?

A: Um, no. One was named Bernie.

Q: One was named Bernie

A: But there was no [inaudible]. Mommy, what's the girl's name?

M: Was it Stephanie or Eileen?

A: Stephanie.

Transcript pg. 16-17.

40) GIRL F:

Q: You're gonna tell your mommy. Did you tell your mommy?

A: At home I did.

Q: At home you did. Did anybody see Bernie do that, honey? Did anybody see Bernie touch you? Did he do it all by himself?

A: I did it.

Q: Huh?

A: I did.

Q: You seen him? Yeah.

A: We put our legs like that.

Q: You did? Yeah? Did Bernie touch you anywhere else? Just down there? And what do you call down there?

A: Tookoo.

Q: Tookoo. And Bernie touched you there? Did he hurt you?

A: Uh, yeah.

Q: Yeah?

A: No.

Q: No? He just touched you? Did he put his hand inside you?

A: No.

Q: — in your pants?

A: No.

Transcripts at 9-10.

41) BOY D:

Q: Okay. We were talking about when you went to ECDC, right, [Boy D nods yes] do you remember when you were there a long time ago, [Boy D nods yes] do you remember being touched with bad touch? [Boy D nods yes] Yeah? Who touched you on a bad touch way?

A: Boy C.

Q: Boy C did? Do you remember any big people, adult people who touched Boy D in a bad way that made him feel kind of funny inside, like that person shouldn’t do that to me?

A: Mary.

Q: Are you sure it was Mary? [Boy D nods yes] Yeah?

Transcripts at 6.

Q: Did Bernie, did Bernie ever touch some of the other little boys in school?

A: No.

Transcripts at 18.

Q: Did he go [spitting sound]? He spit it out. What did Bernie do with his weiner?

A: I don't know.

Q: Huh? Did he put it in Scott's mouth?

A: [Spitting sound]

Q: Yuck. Huh?

A: I don't know.

Q: Did Bernie ever do that to Boy D? [Boy D shakes head no] No?

A: Not even.

Transcripts 25-26

Q: No, you can't bring it home 'cause I got other children I got to talk to and they want to see him too. When Bernie touched Boy D, when he touched him on his dinky, where were you? Try to remember. Where were you? Were you in the classroom? Were you taking a nap with Boy C? Were you in the bathroom? Do you remember where you were? Is it hard for you to remember?

A: Can I hold that?

Q: Yeah. Sure. Try to think about where you were. Joe? Ah, you've got a cold.

MAN: Boy C remembers.

Q: Boy C remembers where he was. Do you remember when it happened? Whoops. Do you remember that it happened in the shed one time? Hm? Joe?

A: Nothing.

Transcripts at 32-33.

Q: Joe? Can you remember something that happened in the woods that you didn't like?

A: No.

Transcripts at 34.

42) BOY C

Q: So what we were talking about that day was private parts and if anybody ever touched your private parts, right?

A: (Nodding)

Q: Right? Okay. So if you can remember way back a long time ago, do you ever remember anybody touching your private parts?

A: My dupy.

Q: Who touched your dupy?

A: Boy D.

Q: Boy D touched your dupy?

A: Yes.

Q: Is Boy D a friend of yours?

A: No (shaking head.)

Transcript pg. 6-7 (found in A-695-696)

Q: Okay. Well, were you playing that game of hide and seek one time in the shed?

A: Uh-huh.

Q: Uh-huh? I know this is kind of hard to talk about; isn’t it?

A: (Slight Nodding)

Q: Kind of embarrassing to talk about things that might be a little bit scary; right?

A: slight (Nodding)

Q: But remember that Mom loves you; right? And nobody’s going to be mad at you if you tell us what happened because we think that maybe something happened. In the shed. And we kind of, I kind of want you to tell me so that I can help you understand why that happened.

Transcript pg. 15 (found in A-704)

Q: Yeah, he does? So what we were talking about was a game you were playing, hide and seek when you were in the shed, right? Can you show me where a person touched Boy C when he was in the shed?

A: (Inaudible)

Q: On the dupy?

A: (Nodding)

Q: Okay. Can you just kind of show me on this doll? Can you just point to the area where it is?

A: (Indicates)

Q: Right there on the dupy, right?

A: (Nodding)

Q: Who was the person that touched Boy C?

A: Jared.

Transcript pg. 17 (found in A-706)

43) The videos contain evidence which could have been used by an expert witness, like Dr. Bruck, to show why the techniques used were improper and why the children's testimony was tainted. Yet, standing alone, the unedited tapes would have had a substantial impact on the jurors' ability to assess the children's credibility.

44) Besides the videotapes, four of the children—Boy C, Boy D, Girl E, and Girl F—only disclosed after seeing the puppet show. The transcript of this puppet show has never been found.

45) Moreover, before trial, Elizabeth Keegan testified that the children met many times with her and the prosecutors to rehearse their testimony. Additionally, the trial transcript contains statements about the children having been asked questions prior to trial. See e.g. Tr. 5/47-49, 5/66, 6/35.

46) The trial judge struggled in determining whether these children were competent. See Lobby Conference on Competency, January 18, 1985. This new evidence would have likely influenced his findings.

47) There was other evidence which was never given to Mr. Baran's counsel but which would have assisted him in preparing for trial and exploring reasons why some of the children were familiar with sexual abuse.

48) In documents obtained by Mr. Baran's trial counsel from the District Attorney, it was discovered that one of the complainants, Girl E, had stated that someone other than Mr. Baran had abused her. In a report authored by Dr. Jean Sheeley, on October 13, 1984, Girl E stated, when asked whether anyone other than Mr. Baran had done this to her, that "Chino did the same thing." See A-454.

49) As part of this new trial motion, Mr. Baran's current counsel received a document never before turned over to Mr. Baran: a DSS 51A/B report from this incident. See SMNT-Exhibit 1. The very same day that Girl E made an allegation against Mr. Baran, she also made an extensive one against Carlos Cassillias, a/k/a/ Chino. The report documents that Girl E claimed Chino assaulted her on or around July 4, 2004—a full three months before her allegation that Mr. Baran did the same. She alleged that Chino took her into the bathroom of a motel and put his penis in her mouth while rubbing her vagina.

50) Detective Peter McGuire was aware of this allegation from the beginning of his investigation. The same day Girl E disclosed about Mr. Baran, she disclosed about Chino. Detective McGuire reported this incident to DSS. Subsequently, this information was never found in any police report authored by Detective McGuire. Recently, Mr. Baran's current counsel discovered a letter that Detective McGuire wrote to the West Springfield Police on or around November 7, 1984. The letter was not on any official police letterhead. It notified the West Springfield Police Department of Girl E's accusation against Chino. See A-409.

51) Despite knowing about Chino, Detective McGuire did not conduct the interview of Girl E but recruited another officer, Trooper Robert Scott, to do so. A-410.

52) The other report which was never turned over to counsel was a DSS 51A/B where BOY A, the initial accuser, stated that his mother's boyfriend, John Woodger, had previously molested him. See A-138. The incident was first reported on January 17, 1985. It was reported that Woodger touched Boy A in the bathtub, in his own bedroom, and at night when he sleeps with Mom. Boy A even said that "this is o.k. because Mom said it was o.k."

53) Though both of these incidents happened, and were known about by the Commonwealth, before and during Mr. Baran's trial, they were never brought to the attention of Mr. Baran's trial or appellate counsel.

54) Apart from these accusations, there were at least nine other DSS 51A/B reports submitted prior to Mr. Baran's trial. See Reply to Commonwealth's Opposition, Exhibit 1. None of these reports were ever turned over to trial or appellate counsel.

55) Mr. Baran's case proceeded to trial within a few months: Mr. Baran was arrested on October 6, 1984, motions were heard on January 18, 1985, and his trial began on January 21, 1985.

56) Mr. Baran's trial counsel was attorney Leonard Conway.

57) Mr. Conway did not interview any Commonwealth witnesses or prospective defense witnesses other than Mr. Baran. Mr. Baran recalled one instance, for example, where Mr. Conway had in front of him a blank pad of paper when a witness was called. He had not prepared any questions ahead of time. Instead, he turned to Mr. Baran and asked him whether he, Mr. Baran, could think of any questions to ask this witness.

58) Mr. Conway did not investigate various avenues of defense, such as the fact that Girl E had accused someone other than Mr. Baran of abuse. He did not investigate whether any other children has disclosed and why those cases had not come forward. He did not investigate whether any of the parents had previously been abused or whether they had any motive to state their children were molested.

59) Mr. Baran at one point had told Mr. Conway that he should speak with his relatives who had young children. Mr. Baran spent a lot of time with these children and not one of them ever made an accusation. Their parents trusted Mr. Baran completely and would have testified as such. Mr. Conway did not follow up on this.

60) Mr. Conway also failed to speak with possible alibi witnesses. At trial, he called Dolly Haywood on behalf of Mr. Baran. He had not, however, spoken with her until about ten minutes before her testimony. It cannot be said that he thoroughly investigated this matter. Additionally, Ms. Haywood had not been sequestered like the other witnesses. ADA Ford cross-examined her about that, and the fact that her testimony may have been influenced by what she had heard. Tr. 7/58-57.

61) Mr. Conway also agreed to allow the Commonwealth to add Boy C to their case without first obtaining an indictment or conducting a probable cause hearing. Mr. Conway did not know what evidence there was to support such a claim—he had not, for example, seen any of Boy C's videotaped interview or any other testimony supporting such a claim.

62) Mr. Conway also failed to consult with, or hire, an expert to assist him. An expert could have been used to explain to the jury the problems with the techniques known to counsel and used to question the children.[6] At the very least, an expert could have helped Mr. Conway prepare to cross examine the Commonwealth's experts who conducted the interviews with the children.

63) In short, Mr. Conway did very little in preparing to represent Mr. Baran against charges which eventually landed him a life sentence.

64) Several incidents at trial should also be noted.

65) The judge closed the courtroom to the press and the public when the children were testifying. Mr. Conway never objected to this and never demanded that the judge make explicit findings as to why he was closing the courtroom.

66) One of the bigger issues in the case dealt with the fact that BOY A had tested positive for gonorrhea. A-444. A few days after Boy A's results came back, Mr. Baran was tested and the results were negative. Mr. Conway did not try to have this evidence excluded from trial.

67) Mr. Conway apparently believed that Boy A's father had contracted gonorrhea and tried to elicit such information from Boy A's mother at trial. Presumably, he was trying to show that it was not Mr. Baran but, rather, Boy A's father who infected Boy A. The judge, however, prevented him from inquiring about this fact because Mr. Conway's only support was the hearsay statements of witnesses whom he could not produce. Tr. 4/171-4/172.

68) Instead, the only explanation for these series of events came in the form of testimony from Dr. Jeffrey Ross. Tr. 5/93-5/113. Dr. Ross testified, in essence, that Boy A could only have contracted gonorrhea from a sexual encounter. He also testified that gonorrhea is more prevalent among homosexuals and prostitutes. And, lastly, he testified that it was possible to treat gonorrhea so that it could not be detected by lab tests within 12-24 hours after the first dose of penicillin.

69) Mr. Conway did attempt to show that it was not likely Mr. Baran could have infected Boy A but not any of the other children. He asked Dr. Ross on cross-examination about the rates of transmittal. Yet, when Mr. Baran testified, Mr. Conway elicited information that he had tested positive at some point in the past for a venereal disease, but had since been treated for it.

70) Mr. Conway was also observed drinking one night during Mr. Baran's trial. Mr. Baran's mother, Bertha Shaw, received a phone call and was alerted that Mr. Conway was drunk at a local bowling alley. She went there and observed him at the bar. The next day she confronted Mr. Conway who remained silent in the face of the accusation. Ms. Shaw testified that even in court he smelled strongly of alcohol. Mr. Baran confirmed that during the trial, Mr. Conway smelled of alcohol. One day, he came in wearing the same suit from the previous day, although it was badly wrinkled.

71) Mr. Baran was convicted of five counts of indecent assault and battery and three counts of rape. His motions for a required finding of not guilty on two other counts were allowed.

72) Mr. Baran received three life sentences. The rest of the lesser sentences were run concurrently.

73) For his appeal, Mr. Baran retained the services of David Burbank from the law firm of Cain, Hibbard, Myers & Cook ("Cain, Hibbard") some time around May, 1985. SMNT-Exhibit 6. Attorney Burbank had some experience in criminal appeals. He wrote Mr. Baran's appellate brief and argued his case at the Appeals Court. He raised several issues, none of which found favor with the court. Mr. Baran's appeal was denied summarily. See Commonwealth v. Baran, 21 Mass.App.Ct. 989 (1986).

74) What defendant never knew, and what he was never told, was that even before his trial had started, Cain, Hibbard had begun investigating his case. Jeffery Cook, a partner at Cain, Hibbard requested a copy of defendant's search warrant and affidavit, even though he was not involved in the criminal case. On January 3, 1985, ADA Ford actually sent him copies of the documents. SMNT-Exhibit 7.

75) On February 1, 1985 an employee of Cain, Hibbard, Virginia Stanton, resigned from the ECDC Board of Directors so as "to avoid a conflict of interest" since their firm had decided "to represent the parents of one of the children involved in the Baran abuse case." SMNT-Exhibit 8.

76) On February 4, 1985, Attorney Burbank sent at least two letters requesting copies of documents from Mr. Baran's criminal trial on behalf of his clients, Girl E and her mother. SMNT-Exhibit 9. One letter was addressed to ADA Ford; the other was addressed to Girl E's pediatrician, Dr. Jean Sheeley.

77) On February 5, 1985, Cain, Hibbard opened a file for Girl E's mother, according to their own filing system. SMNT-Exhibit 10.

78) Testimony revealed that Attorney Burbank and Cain, Hibbard did an investigation on behalf of Girl E and her mother to determine whether they had a viable case against ECDC. They collected numerous documents during the course of that investigation.

79) Cain, Hibbard eventually ended its representation of Girl E and her mother, though it is unclear exactly when. Attorney Howard Guggenheim eventually took over the case and filed a civil claim in May of 1985 (around the same time Cain, Hibbard began representing the defendant). SMNT-Exhibit 11. However, Cain, Hibbard received a payment for work they had done in the civil case as late as April 16, 1985. SMNT-Exhibit 12. As part of the eventual settlement in the civil case, it is clear from Attorney Guggenheim's record that he paid Cain, Hibbard $28.25 on April 16, 1985. The payment was for costs Cain, Hibbard incurred in making a copy of the file for Attorney Guggenheim.

80) Cain, Hibbard has since disposed of Girl E's file. SMNT-Exhibit 10.

81) Therefore, before having represented Mr. Baran on appeal, Attorney Burbank and Cain, Hibbard represented one of his alleged victims. They collected documents which could very well have assisted Mr. Baran and which were not part of his trial record. However, they also established attorney-client privilege with Girl E and her mother. Any evidence which Attorney Burbank gathered and which could have helped Mr. Baran could not be used in his defense since Attorney Burbank was ethically bound to keep the information privileged. Moreover, any claims made on behalf of Mr. Baran which diminished his liability generally, and specifically against Girl E, was a violation of his duty to his former clients.

82) Neither Mr. Baran nor any court were ever apprised of these facts. Mr. Baran never had a chance to waive this conflict.

83) Of the arguments put forward in Mr. Burbank's appellate brief, none of them dealt with specific evidence of Girl E having previously accused someone other than Mr. Baran of abuse and of trial counsel's failure to take advantage of this information.

84) Since Mr. Baran's conviction, three of the children recanted their accusations against Mr. Baran.

85) Boy A bragged to his high school class that he had lied about Mr. Baran so his mother could get money. Boy A's father, spoke with Mr. Baran's former friend and roommate and Mr. Baran's mother. He indicated to both of them that he had lied about Mr. Baran's guilt and now experienced remorse. A-312, 313.

86) Boy C told a therapist, just 10 months after Mr. Baran's trial, that he had made up his story concerning Mr. Baran. A-787.

87) Finally, Girl E, also just 10 months after Mr. Baran's trial, told her therapist that she too had made up the accusations against Mr. Baran. She did so because her mother told her it would help get them money. A-159-160.

88) Since Mr. Baran's conviction, newly discovered evidence—new scientific research—has developed which casts a doubt upon a medical conclusion made by a doctor in this case.

89) At trial, Dr. Jean Sheeley testified about specific physical findings concerning Girl B. After an examination, she observed that the "hymen was ruptured in several sites consistent with full rupture of the hymenal ring." Specifically, "there were two small posterior tears in the hymenal ring and there was a large anterior tear toward the urinary opening." Tr. 6/121-122. "The hymen is a tissue ring which is at the opening of the vagina and is, in fact, in most prepubital children and is the structure which is ruptured at the time of sexual intercourse." Tr. 6/122.

90) The doctor made a drawing on the blackboard and gave the following testimony:

This would be normal anatomy with the urethra being the opening of the urinary tract. In other words, if the child were laying face down with the buttocks here and pubic area here, we will be looking at the labia surrounding all of this. The "U" is the urinary opening and this would represent the position of a normal hymen and this the rectum.

Now, in [Girl B's] hymenal opening — it was shaped as such, so there were two tears in the back region and then there was a full rupture to the front so that the opening was widened much more than usual.

Tr. 6/122-124.

91) She continued by noting that the injuries to Girl B's hymen were "consistent with what we call a full penetration which would occur by insertion of a penis or an object as large as perhaps several adult fingers. I feel that a smaller object such as inserting one finger probably would not produce a tear to this extent." Tr. 6/124. These injuries would not be consistent with Girl B inserting her own finger. "The finger isn't large enough to produce this kind of trauma nor do I feel that a child could inflict that much pain on themselves if they were a normal child." The result of such an injury "would be bleeding from the tearing of the hymen." Tr. 6/125. Penetration of a child of this age with either an adult male penis or several adult male fingers "would be somewhat painful." Tr. 6/127.

92) She added that it was possible that a child could have inserted a foreign object in her vagina large enough to cause this kind of damage, but said "it's unlikely for a child to do this to themselves because the extent of the trauma is more than most people will inflict upon themselves." As to whether she had read that a female child may occasionally insert a foreign object as part of her exploration of her own body, she responded, "Children will put a piece of toilet paper or small object painlessly, which can cause irritation." Tr.6/132-133.

93) Dr. Sheeley's original report on her examination of Girl B did not contain the words "full rupture of the hymen." It stated that there were "two posterior tears" and "looseness of the two flaps that are left in the front from the anterior tear." Tr. 6/125. At this point, Dr. Sheeley revealed that she had done a second examination. The first examination was done on October 8th "and then because of further information from the family regarding the internal penetration by various objects, we brought her back in to do a careful internal inspection on January 16th, to look for vaginal or rectal tears." Tr. 6/126. During both examinations, she observed the anterior tear and small posterior tears. Although the report of the October 8th examination did not say "full rupture of the hymen," "[t]hat is what I mean by looseness of mucosa bilaterally at sides of entroitis. Those are the two loose flaps that are left in the front where the hymen has torn toward the urethra." The small well-healed posterior tears were one to two millimeters which, according to Dr. Sheeley means "a quarter of an inch." Tr. 6/126 -127.

94) New science raises doubt about Dr. Sheeley's findings. Particular hymenal characteristics, that were previously believed to be abnormal and evidence of prior genital trauma are in fact normal anatomical variations.

95) Dr. James Crawford is a highly qualified children's physician, who is the Medical Director of the Center for Child Protection at Children's Hospital Oakland, California. His work centers around child abuse allegations. He has written several papers including one on genital injuries. He submitted an affidavit which made the following findings, all of which I adopt below in paragraphs 96-99:

96) The first area of hymenal "pathology" that Dr. Sheeley describes is symmetrical, bilateral "small, 1-2 mm tears" in the posterior portion of the hymen. This objective description suggests that there was slightly more hymenal tissue in the central portion of the posterior aspect of the hymen, flanked by areas where the width of the hymen was "1-2 mm" less. This is a very good description of what would presently be identified as a hymenal mound. A hymenal mound is a normal structure. It is not evidence of prior genital injury. Alternately, one might argue these findings represent two "superficial notches." These too, are physical findings identified in normal, non-abused children, and do not offer a trier of fact any insight as to whether or not injury occurred in the past.

97) Another area where hymenal "pathology" is identified is "looseness of mucosa bilaterally at sides of introitus. . .two loose flaps that are left in the front where the hyman [sic] has torn toward the urethra." This is a description of an examination where no anterior hymenal tissue is present. Rather than evidence of pathology, this is a description of a normal appearing, crescentic hymen. A crescentic hymen is one of the most common anatomic forms, where the hymen is "U-shaped", and has lateral and posterior tissue, but little or no anterior tissue. The hymenal finding of "two loose flaps . . . toward the urethra" is a very good description of what would currently be referred to as “anterior hymenal wings”. Anterior hymenal wings are normal structures. They are not evidence of prior genital injury.

98) Today's literature is clear that very few "non-acute" hymenal findings would allow an examiner to testify with certainty that a child's exam showed "clear evidence of prior penetration." None of the findings that would allow an examiner to testify today with certainty that a child’s exam showed "clear evidence of prior penetration" is described in Girl B's genital exam.

99) The description of Girl B's genital exam appears to objectively describe physical findings that, if interpreted with the information available in 2004, would be characterized as normal.

Date: _________________________________

Justice Francis Fecteau

[1] References to the Appendix will be cited as "A" followed by the page number.

[2] Indeed, Elizabeth Keegan, who was then the sole victim witness advocate for the Pittsfield District Attorney's office at the time of Mr. Baran's trial, and who is today the director, testified that their office no longer use anatomically correct dolls because "times have changed." Other District Attorney offices throughout Massachusetts have now changed their practices. In Commonwealth v. LeFave, the Middlesex District Attorney's office conceded that they no longer use the suggestive interview techniques that were used when Cheryl Amirault LeFave was convicted, techniques similar to those used against Mr. Baran. See Commonwealth v. LeFave, Superior Court Doc. Nos. 85-63, 85-64, 85-66, 85-67, 85-2678, 85-2679, 85-2680, Slip Opinion at 113 n. 16. (1997).

[3] No videotape of Girl E has ever been produced. There is, though, a reference to her interview being videotaped in a police report dated October 15, 1984. A-128. Additionally, it is still unclear whether the videotape of Girl F has been found in its entirety. The longest video in Mr. Baran's possession is still significantly shorter than the other full interviews and seems to start midway through the interview. Also, there are actually three versions of Girl B's video: one is the edited portion shown to the grand jury, another is a longer version believed to be the full interview, and the third is a version longer than the grand jury one but shorter than the full one. It is unknown why so many versions exist. Finally, because Boy C's case was never presented to the grand jury, his videotape was not shown to the grand jury, edited or otherwise.

[4] References to the Supplement to Motion for New Trial will be cited as "SMNT" followed by the page number.

[5] To be clear, the newly discovered evidence in this case is actual physical evidence in the form of never before seen videotapes. The substance of the tapes supports defendant's arguments that he was not given exculpatory evidence and the children's testimony was tainted by suggestive questioning. This case is thus unlike Commonwealth v. LaFave, 420 Mass. 169 (1999). The newly discovered evidence in that case was not actual, physical evidence but, rather, the testimony of an expert in suggestive child interviewing techniques, Maggie Bruck. In the present case, while defendant is relying on the testimony of Maggie Bruck, he is not doing so by claiming the testimony itself is newly discovered; instead, the testimony will explain, inter alia, the significance of the newly discovered videotapes. Cf. Memorandum in Support of Evidentiary Hearing and accompanying affidavit of Maggie Bruck.

[6] Many techniques, however, were not known to counsel since evidence of their existence was only found on the unedited videotapes.