Reply to the Commonwealth
COMMONWEALTH OF MASSACHUSETTS
Berkshire, ss. SUPERIOR COURT DEPARTMENT
No. 18042 through 18051, and 18100, 18101
COMMONWEALTH OF :
BERNARD BARAN :
REDACTED REPLY TO COMMONWEALTH’S AMENDED RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL
The Commonwealth’s response to defendant’s motion for new trial, submitted on January 4, 2005, both mischaracterizes the factual record and misinterprets legal standards. Based on all the evidence gathered in this case, both documentary and testimonial, and based on the appropriate legal standards, there can be no mistake that Bernard Baran is the victim of a grave and prolonged injustice.
I. Issues the Commonwealth Does Not Contest
The Commonwealth attempts to address the many issues raised by Mr. Baran in a curt 26 page reply. In point of fact, the Commonwealth simply does not contest a great many of the claims presented by Mr. Baran at all.
A. The Children’s Testimony was Tainted by Suggestive Interview Techniques
The Commonwealth does not contest that the authorities used improper, suggestive interview techniques in this case which tainted the children’s testimony. Citing Commonwealth v. LeFave, 430 Mass. 169 (1999), the Commonwealth argues, instead, that the court should not consider this claim because it has already been raised. This response is wholly inadequate for several reasons.
The evidence of suggestiveness is presented primarily through Dr. Maggie Bruck. Dr. Bruck was the same expert called on to testify in LeFave. In this case, however, her testimony is used in a different manner. First, Mr. Baran argues that if the type of evidence Dr. Bruck presented was not new at the time of his trial, see LeFave, then it was ineffective for his attorney to not call or even consult with an expert like Dr. Bruck. This issue has never been raised before. Second, because portions of the videotaped interviews were withheld from Mr. Baran, evidence of suggestiveness gleaned from this was not available at the time of his trial. To the extent that suggestiveness was raised before, the newly discovered videotapes provide insight Mr. Baran’s trial or appellate counsel never had.
More importantly, the only issue raised in LeFave was that the science contained in Dr. Bruck’s testimony was newly discovered. The SJC found that the science was not at all unavailable at the time of LeFave’s trial and, that in fact, this science was touched upon, and hence raised, at that trial. The SJC found no reversible error primarily because two other experts testified at trial as to the same scientific principles essentially presented by Dr. Bruck in the motion for new trial. LeFave, 430 at 179-80. Mr. Baran, on the other hand, had no experts testify on his behalf, let alone ones who covered the same ground Dr. Bruck, or a comparable expert, could have. Additionally, in LeFave, the defendant presented the argument in her third motion for new trial. It was in response to that piece-meal approach that the court noted its disfavor in reopening settled cases. Not only is this Mr. Baran’s first motion for new trial, but it is replete with instances of error. Under Mass.R.Crim.P. 30(c), a motion judge has discretion to address an issue previously waived in “those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Commonwealth v. Watson, 409, Mass. 110, 112 (1991).
In this respect, Mr. Baran’s case is nothing like LeFave. What was suppressed here was physical evidence–unedited videotapes of highly suggestive interrogation techniques that tainted the entire prosecution case–that with or even without the aid of expert testimony, would have materially influenced the jury. The suppressed videotapes make this case unique and tremendously troubling. The Commonwealth’s argument of waiver or finality is disingenuous, given that it was their conduct which created this injustice.
To the extent any issue of suggestiveness was either previously addressed or now considered waived, refusing to resurrect it would be unjust. Neither trial nor appellate counsel presented the issue in an effective manner, unlike, for example, the trial lawyers in LeFave who at least consulted with experts, and called them to testify. Moreover, Mr. Baran has presented an overwhelming amount of evidence which casts serious doubt on his convictions. The combination of newly discovered evidence, unpreserved, yet serious errors, and poor legal representation counsel in favor of considering all of Mr. Baran’s claim, including that the interviews of the children were suggestive.
Dr. Bruck’s testimony highlighted these problems. 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. During the time of Mr. Baran’s case, the mind set was different. Authorities believed that children were scared and embarrassed. Their silence and denial were not indicators that nothing happened to them. Therefore, they were pushed and prodded until they produced answers which conformed with lingering suspicions.
There are proper and improper methods for interviewing children. Improper methods will likely elicit inaccurate and false reports while proper methods should not. The 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 cannot 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.
Improper techniques can lead to unreliable statements. These techniques include the following: Using leading questions and not allowing a child to say what occurred in his own words; repeated interviews of a child because a child is led to believe that the answers he has already given are incorrect--eventually he assents to the interviewers version of events; using atmospherics which 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 calling him “rude”, for example, when he says nothing.
In addition to improper techniques, other factors can lead to false accusations. As in Mr. Baran’s case, it is problematic to have parents present. For one, multiple interviewers can gang up on the child. But also, 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.
Also, 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.
The biggest problem, however, might be that children, especially 3-4 year olds, cannot understand the concept of symbolism. The 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 routine doctor’s examinations. The doctors 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 with anatomically correct dolls. When asked to demonstrate with the dolls what the doctors had done to them, the children showed actions consistent with sexual abuse, yet nowhere resembling their interactions with the doctors. 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.
Dr. Bruck applied her research to the specific interviews conducted in this case. She stated that they were all filled with very specific questions, usually leading, and rarely followed-up. All the children were given anatomically correct dolls with which to assist in the interview. Each child, though, had apparent problems understanding the symbolism they were supposed to attribute to the dolls–at times, they were just playing with them. There were two or three adults present in almost every interview, often including at least one parent, if not both. And, each interview was accompanied by problematic “atmospherics.”
In short, Dr. Bruck presented testimony never before heard by any fact-finder in Mr. Baran’s case. Testimony which undoubtedly would have resulted in a different verdict. This evidence would have explained to the jury why and how a child could accuse Mr. Baran of abuse if Mr. Baran had never actually done what they accused him of doing. This testimony was powerful, and failure to call Dr. Bruck, or a comparable expert, was ineffective assistance of counsel. Counsel did not even consult with an expert to try and present this evidence through other channels or through cross-examination. Finally, Dr. Bruck’s testimony was also based on newly discovered evidence–the unedited videotapes. This evidence, never before available to Mr. Baran, now requires he be given a new trial because its impact on a jury is irrefutable.
B. Girl B’s Hymenal Pathology was Normal
The Commonwealth does not contest the validity of Dr. James Crawford’s affidavit. Motion for New Trial, pg. 168; Appendix pg. 305. Dr. Crawford stated that new scientific information indicates that Girl B’s hymenal pathology–which Dr. Jean Sheeley described as exhibiting injuries consistent with full penetration, Trial 6-124–is actually normal when analyzed with information and research developed since Dr. Sheeley’s examination. This information casts a grave doubt on Mr. Baran’s conviction. As often happens with child sex abuse cases, the theme of the prosecution was that these children were abused because there was no other way to explain their testimony and injuries. The jury was led to believe that Girl B was one of two children to exhibit physical signs of abuse (the other being Boy A). Were Dr. Sheeley’s analysis accurate, then the jury would wonder how else could Girl B have received this injury but for abuse. However, absent this evidence, which modern science shows is now inaccurate, the jury would be more likely to believe that the only evidence against Mr. Baran–the children’s testimony–may have been unreliable. Absent Dr. Sheeley’s report, the physical evidence no longer corroborated the children’s testimony.
C. Counsel Should Have Objected to Closing the Courtroom
The Commonwealth does not contest that it was ineffective for both trial and appellate counsel to fail to object to the courtroom’s closure during the testimony of the children. There is no doubt that the procedure for closing the courtroom did not comport with the mandated four part test for closure and that the judge failed to make adequate findings supported by the record and pertaining to the particular minor complainant. See Commonwealth v. Martin, 417 Mass. 187, 192-96 (1994); People v. Martinez, 568 N.Y.S.2d. 940 (1991) (failure to make a record as to why the courtroom was being closed is per se reversible error). Open proceedings implicate two paramount constitutional rights–the First Amendment right of the public to access and a defendant’s Sixth Amendment right to a public trial. Id. at 192. “A showing of prejudice is not necessary for reversal of a conviction which is not the result of public proceedings.” Id. at 196, quoting Commonwealth v. Marshall, 365 Mass. 432, 435 (1969); Waller v. Georgia, 467 U.S. 39, 49-50 n.9 (19 ) (noting that defendant should not need to show specific prejudice and stating that “[w]hile the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real”). Rather, the appropriate relief is a new trial. Id; see State v. Dixon, 2005 Kan LEXIS 335 (Do. No. 89164 June 3, 2005) (“The lack of effect on the verdicts, however, should not necessitate the conclusion that the error was harmless where the trial court’s closing the courtroom was inconsistent with substantial justice. [T]he closure was inconsistent with the substantial right of [the defendant] to a public trial and not harmless error”). Both trial and appellate counsel, therefore, were ineffective in not raising the issue.
D. The Commonwealth Failed to Give Defendant Brady Material
Trial counsel specifically requested certain discovery which was allowed by the court. See Exhibit 1. The Commonwealth does not contest that it failed to give defendant this evidence: the unedited videotapes, the police report which stated that Boy A’s Family complained to ECDC that Mr. Baran was gay and should not be permitted to work there, the 51A and 51B reports of Boy A and Girl F in which they accuse someone other than Mr. Baran of abuse, the police report authored by Detective McGuire regarding Chino, and the 51A and 51B reports of the other children not part of Mr. Baran’s trial. See Exhibit 2.
Rather, the Commonwealth contends this evidence was not Brady material. For example, the Commonwealth reads Commonwealth v. Ruffen, 399 Mass. 811 (1987), as requiring that the alleged abuse of another take place prior to the alleged abuse by a defendant in order for the evidence to be relevant. Commonwealth’s Response, 14-15. Ruffen does not stand for such a limited proposition. The SJC did not intend “prior” to mean before the allegations in the current trial but, rather, to mean any past abuse. Id. at 814-817. The purpose of Ruffen is to allow a defendant access to evidence which explains to a jury that while he may be innocent the child may indeed have been abused, but by someone other than the defendant. Id. At best, the modification of “prior” in Ruffen may limit claims to allegations of abuse committed before a victim first discloses against the defendant. But even this limited reading still encompasses the “Chino” allegation since the abuse occurred in July, 1984 but Girl F did not disclose anything until October, 1984.
This narrow method of viewing the evidence in this case infects most of the Commonwealth’s arguments. With regard to both the Woodger and Chino allegations, the Commonwealth’s argument is essentially that this evidence is not exculpatory because it does not show Mr. Baran did not commit these crimes; rather, it shows that someone in addition to him did. But it is not within the Commonwealth’s power to decide what is and what is not evidence of guilt. It is the Commonwealth’s duty to produce any exculpatory evidence.
Exculpatory evidence is not merely evidence of innocence. It is “evidence which provides some significant aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a material, although not indispensable, element of the prosecution’s version of the events, or challenges the credibility of a key prosecution witness.” Commonwealth v. Gregory, 401 Mass 437, 441 (1988), quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978). All of the withheld evidence falls under this description. Evidence of Boy A’s Family prior complaints about Mr. Baran’s homosexuality, along with the many 51A and 51B reports of non-witness children, would have corroborated defendant’s hysteria and anti-homosexuality theory. Evidence of Boy A’s accusations against Woodger not only would have questioned an element of the prosecution’s version but provided valuable impeachment evidence against Boy A’s Mother. The same argument can be made of the Chino allegation, except it would have also provided valuable impeachment evidence against Girl F’s Mother and Detective Peter McGuire. And, as noted, the Chino and Woodger allegations would have provided relevant Ruffen material.
The Commonwealth also dismisses the idea that the other 51A and 51B reports were relevant because they contain no exculpatory evidence. To be sure, the Commonwealth only claims to have copies of five reports whereas defendant now has nine. That said, the Commonwealth’s view of “exculpatory evidence” is still remarkably narrow. The Commonwealth fails to acknowledge that the sheer number of reports produced after the puppet show, but never brought to trial, would have supported Mr. Baran’s hysteria defense; it fails to acknowledge that competent counsel may have taken such reports and investigated further to find out why these allegations never resulted in prosecutions; and it fails to acknowledge that the reports contain evidence which would have supported Mr. Baran’s argument that any and all accusations were the product of unduly suggestive interviews and overly zealous doctors and police.
Chandra Aylor never disclosed to a doctor or social worker; her referral to the DA’s office relied entirely upon hearsay. Katie Bubriski disclosed only after attending the puppet show and even then, “denied anyone putting anything inside her, including in mouth and ‘hynie’. Denied that she did anything during the game. Denies being hurt, denies blood, denies anything coming out of Bernie.” John Danylieko did not disclose after two lengthy meetings with a DSS worker but his mother, who admitted to having repressed memories of being abused as a child, insisted her son had been too. Jennifer Darrow’s parents reported she was possibly abused after the puppet show but the most Jennifer ever disclosed is that Bernie hit her in the arm. Alicia Davidson’s mom stated that Mr. Baran babysat for her 8 to 12 times and the Mr. Baran was the only thing she liked about ECDC; additionally, Alicia never disclosed to the DSS worker; and, Dr. Sheeley reported that she had a ruptured hymen, but presumably relied on the same outdated science used to evaluate Girl B. Teddy Harget’s parents did not want him to be interviewed but his mother “was made to understand that Teddy was assaulted by Bernie.” Robin Pearce’s father had recently been found guilty of lewd and lascivious conduct for “supposedly” masturbating in front of 2 women but was not considered a source of the abuse. Wesley Williamson “may have been pumped for questions,” his mother was battered by his father, and he never directly disclosed to the DSS worker. Shane Willis did not disclose for over a year and when he did he said the abuse happened 100 times a day.
Mr. Baran’s defense counsel now possesses relevant, available, and exculpatory evidence which trial and appellate counsel were never given. Indeed, it has only now been received through the cooperation of the current District Attorney, David Capeless, despite his protest that the evidence is all irrelevant. Though DA Capeless has yet to turn over all of Mr. Baran’s file, the fact that he turned over much of what was sought is commendable, compared with the actions of Assistant District Attorney Ford. ADA Ford should have turned over the evidence first, and then argued its relevance and admissibility later. Instead, there is an underlying presumption of suspiciousness and distortion in Mr. Baran’s discovery process.
E. Trial Counsel Was Ineffective
The Commonwealth has not contested many of the allegations that trial counsel was ineffective. It does not contest that trial counsel failed to investigate the case more thoroughly, that he failed to speak with, let alone hire, any experts to testify on behalf of Mr. Baran, or that he failed to prepare for trial by speaking with potential witnesses or becoming familiar with relevant evidence (such as the videotapes of the children’s interviews). The Commonwealth seems to argue that trial counsel did the best he could and, at times, made some reasonable decisions. But even if trial counsel did the best he could, that still does not mean he performed well enough to provide Mr. Baran with effective counsel.
In a strikingly similar recent case, a judge found an attorney was ineffective when he failed to conduct any pre-trial interviews whatsoever. Trial counsel candidly admitted that it was not his practice to speak with persons other than his client in preparation for a trial. He also admitted he did not even seek the services of an investigator. The court found that the defendant was entitled to a new trial as counsel’s performance fell well below a reasonable standard. Commonwealth v. Garcia, Fitchburg District Court, Do. Nos. 0261-CR-00840, 0261-CR-00843 and 0261-CR-00844 (December 17, 2004) (Exhibit 3). The performance of Mr. Baran’s trial counsel is virtually identical to the deficient performance of Garcia’s counsel. While Mr. Baran’s trial counsel may have tried as hard as he could, the standard of effectiveness is not whether trial counsel put forth a valiant effort but whether competent counsel may have achieved something material on behalf of Defendant.
Dr. Bruck’s testimony alone shows how competent counsel may have achieved something material had he consulted with an expert, or called one to testify. But the impact and detail Dr. Bruck provided in this motion was nowhere to be found in trial counsel’s representation of Mr. Baran. Not one argument, witness, or line of questioning (direct or cross) brought out the science against the Commonwealth’s case in the manner of Dr. Bruck’s testimony. Failure to call her, or an expert like her, was one of trial counsel’s many ineffective actions. A defense attorney has a constitutional duty “to conduct an independent investigation of the facts, including an investigation of the forensic, medical, or scientific evidence on which the Commonwealth will rely to prove guilt.” Commonwealth v. Baker, 440 Mass 519, 529 (2003).
The list of trial counsel’s further missteps is lengthy. Trial counsel failed to conduct any investigation in this matter. He did not interview any Commonwealth witnesses or explore the possibility of suggestiveness. He did not even speak with one of his own witnesses until approximately ten minutes before her testimony. Tr. 7/58-67. “Effective assistance of counsel includes conducting an adequate investigation.” Commonwealth v. Staines, 441 Mass. 521, 530 (2004), citing Commonwealth v. Roberio, 428 Mass. 278, 279-80 (1998). Trial counsel also failed to avail himself of other discovery vehicles. Counsel waived an indictment and probable cause hearing with respect to the charges against Boy C, even though doing so would have allowed him to discover the evidence against Mr. Baran with respect to those charges. Counsel also failed to watch even the edited videotapes of the children’s interviews until trial had commenced. While the edited videotapes provided just a small sample of the entire interviews, they were enough to put counsel on notice that he should investigate the possibility of suggestiveness.
Trial counsel also “abandon[ed] the only defense available to [Mr. Baran] and left [him] without any defense at all.” Commonwealth v. Haggerty, 400, Mass. 437, 442 (1987). To be sure, Mr. Baran had several viable defenses. Trial counsel could have shown that the accusations were a product of hysteria or homophobia. But he did not acquire evidence which would have supported this claim, such as the fact that Boy A’s family had complained to ECDC about Mr. Baran’s homosexuality before any of the allegations of abuse surfaced. He also failed to bring out this theme in cross-examining any of the Commonwealth witnesses, nor did he adduce evidence to support it. Additionally, with some due diligence, counsel could have unearthed the evidence that Girl F had done the same. Trial counsel could have better investigated Mr. Baran’s alibi defense–that he would eat lunch with a friend during nap time, when he allegedly abused the children. But counsel failed to investigate or present any of these issues.
Even if trial counsel was competent, “[a] defendant's right to counsel is not satisfied by the mere presence of a competent attorney if that attorney is not prepared.” Commonwealth v. Cavanaugh, 371 Mass. 46, 58 (1971). Given the fact that this case proceeded to trial in three months, and given the fact that trial counsel did not conduct an investigation, speak with prospective witnesses, or consult with experts, his representation of Mr. Baran was ineffective.
F. Appellate Counsel Had a Conflict of Interest
The Commonwealth has not taken a position on the allegations that David Burbank, and Cain, Hibbard generally, had a conflict of interest when they represented Mr. Baran on appeal. This issue is newly discovered. Mr. Baran could not reasonably expect that the issue would have been presented in his direct appeal. Moreover, the documentary evidence which first led to this claim was only received by defendant when the Commonwealth allowed counsel to inspect its file after having already filed his motion for new trial.
Cain, Hibbard’s various conflicts indeed casts real doubt upon the justice of Mr. Baran’s conviction. Although Mr. Burbank was Mr. Baran’s appellate attorney, that should not minimize the fact that effective, zealous appellate counsel could have procured, at the very least, a new trial. The various conflicts assured that Mr. Burbank never presented any meritorious arguments about trial counsel’s failure to use and /or pursue evidence of the Chino allegation. Quite the contrary, Mr. Burbank had an obligation not to publish information he knew to be confidential, an obligation missing with any other attorney who had not represented Girl F/Mother F.
Twenty years later, memories have faded. Many witnesses could not, or did not want to, remember the details of long ago. But Mr. Baran should not have to bear the burden of awakening their recollections. As Mr. Burbank himself noted in a brief he authored,
The defendant is not to be put to the burden, perhaps insuperable, of proving the resolve and possible mental conflicts of counsel. Both the potential for prejudice and the difficulty of proving it are apparent, particularly as to things that may have been left not said or done by counsel.
Commonwealth v. Cobb, 379 Mass. 456, 461 (1980).
G. The Grand Jury Proceedings Were Tainted
The Commonwealth fails to address ADA Ford’s improper grand jury presentation. Commonwealth v. McCarthy, 385 Mass. 160 (1982); Commonwealth v. O’Dell, 392 Mass. 445 (1984). It has not suggested that any evidence other than the edited portions of the videotapes was presented to the grand jury, or that the portions edited out provided exculpatory evidence. It does not contest that a prosecutor is prohibited from making an unfair or misleading presentation to the grand jury, and cannot purposely provide deceptive evidence. Commonwealth v. Mayfield, 398 Mass. 615, 622 (1986). And it does not contest that this conduct likely influenced the grand jury deliberations. These concessions require that the indictments be dismissed.
II. Points Contested by the Commonwealth
The Commonwealth does contest some of the issues raised by Mr. Baran’s motions.
A. The Children Were Not Competent to Testify
The Commonwealth claims the issue of competency was not only properly decided but cannot now be raised. As noted, a judge has discretion to rehear an issue already raised if it appears there has been a substantial miscarriage of justice. Newly discovered evidence of the unedited videotapes of the children, along with the testimony of Dr. Bruck, casts grave doubt upon the correctness of the trial judge’s rulings of competence and the appellate court’s deferential review. Dr. Bruck’s testimony puts into perspective why the children were incompetent to testify. The most apparent deficiency in their testimony is that they had been subjected to suggestive interview techniques; that, along with their tender age, wiped out whatever real memories they had of their time at ECDC and replaced them with the memories which were given to them by Jane Satullo and others. Given the evidence available at the time of the trial judge’s ruling, the children may reasonably have seemed to be competent. In retrospect, however, they were anything but.
Additionally, Mr. Baran reiterates his arguments put forward in his initial motion for new trial regarding the legal standards erroneously applied at his trial and on appeal.
B. Trial Counsel Should Have Sought a Mistrial
The Commonwealth does not address whether trial counsel’s failure to seek a mistrial after the counts against Boy A were dismissed was ineffective assistance of counsel. Rather, the Commonwealth argues that defendant was not prejudiced in any event because trial counsel used the gonorrhea evidence to Mr. Baran’s advantage. However, the only way such evidence could have been advantageous is if trial counsel also had access to, and relied upon, other evidence: evidence that Girl B’s hymenal pathology was normal, evidence that Girl F had accused another, evidence that the Boy A’s parents had complained about Mr. Baran’s homosexuality, and, most importantly, evidence that Boy A had accused Woodger of similar abuse. Only then would defense counsel’s tactics have been remotely reasonable because he could have refuted all the physical evidence of gonorrhea and given a plausible argument as to how these children could have known about abuse. See, e.g., Ruffen. But, absent this evidence, the continued reference to counts already dismissed and misleading testimony about gonorrhea and homosexuals, along with no alternative explanation of how Boy A contracted gonorrhea, was wholly prejudicial to Mr. Baran.
It may be that trial counsel’s strategy was to show that someone other than Mr. Baran had given Boy A gonorrhea. 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. 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. Had Mr. Conway succeeded in adducing evidence that someone close to Boy A had gonorrhea and could have infected Boy A–and then had a motive to set up Mr. Baran–the strategy of not seeking to preclude this evidence would have been reasonable. Instead, Mr. Conway framed the issue such that the only possible source of Boy A’s gonorrhea was Mr. Baran. To the extent this was a strategic decision at all, it was “manifestly unreasonable.” Commonwealth v. Bousquet, 407 Mass. 854, 863-64 (1990) citing Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
C. The Trial Judge Improperly Admitted Fresh Complaint Evidence
Once again, the Commonwealth fails to address the substance of this claim and argues solely that the issue was raised before. While the issue was raised in Mr. Baran’s direct appeal, as the Motion for New Trial points out, the law has developed significantly since then to create a new constitutional basis for appeal.
Furthermore, given the evidence presented in these proceedings, it is troubling that Mr. Baran’s conviction relied mostly on fresh complaint evidence. Massachusetts is only one of three states which still allow fresh complaint witnesses to testify as to the details of the complaint. See Commonwealth v. Peters, 429 Mass. 22, 30 n.9 (1999). Even if this court determines that the fresh complaint evidence in this case was properly admitted under Massachusetts law, it is troubling that it dominated a case in which there now remains virtually no reliable supporting direct or circumstantial evidence. Mr. Baran was convicted based on evidence which other jurisdictions continue to declare unreliable. See generally State v. Troupe, 237 Conn. 284 (1996) (holding that admission of details of fresh complaint no longer allowed in criminal cases).
D. Trial Counsel was Ineffective for Waiving an Indictment and Probable Cause Hearing for the Charges Stemming from Boy C
The Commonwealth has attempted to break down trial counsel’s conduct into a series of actions. It argues that when each is viewed in isolation, it alone was not ineffective and, in any event, did not prejudice Mr. Baran. The error of this analysis is that trial counsel’s conduct cannot be seen as a series of events; instead, it should be viewed as an overall deficient performance as evidenced by error upon error. This specific claim exemplifies such ineffectiveness. Trial counsel was simply inept–he did not investigate this case, he was not prepared, he did not use the evidence given to him by the Commonwealth, he did not investigate his own case, and he failed to take advantage of many opportunities to strengthen Mr. Baran’s position. In isolation, had the only questionable conduct been trial counsel’s waiver to proceed by indictment and probable cause hearing, then there would not have been a substantial miscarriage of justice, as the Commonwealth suggests. But counsel’s actions in allowing the Boy C count to simply be added speaks volumes of the type of lawyering Mr. Baran received. It cannot be considered an isolated act; it is but one of myriad missteps which affirms that Mr. Baran received ineffective assistance of counsel.
E. Evidence of the Three Recantations is Reliable
The Commonwealth dismisses the evidence submitted that three children recanted as unreliable. As with the claims for ineffectiveness, were this the only evidence supporting a new trial, the Commonwealth’s argument might have some merit. But these recantations derive their reliability from the voluminous evidence pointing to Mr. Baran’s innocence or, at the very least, the total lack of due process which infected his entire trial. While Mr. Baran steadfastly maintains his innocence, he is still mindful of the psychological trauma that these children suffered, and continue to suffer, for having been put through this ordeal. Out of respect for them and their families, in an effort to allow them to move on as best as possible, Mr. Baran has not attempted to call these children to testify and answer questions about their recantations. Instead, Mr. Baran submitted their recantations as yet more evidence that he was wrongfully convicted.
F. The Commonwealth’s Experts Improperly Vouched for the Child Witnesses
The Commonwealth oversimplifies in its characterization of the Commonwealth’s witnesses with respect to vouching for the children’s testimony. The law is clear:
Although expert testimony on the general behavioral characteristics of sexually abused children is permissible, an expert may not refer or compare the child to those general characteristics. Such testimony impermissibly intrudes on the jury's province to assess the credibility of the witness.
Commonwealth v. Trowbridge, 419 Mass. 750, 759 (1995)(citations omitted).
Perhaps the most telling sign that the experts crossed a line in this case comes from the questions asked by ADA Ford, which explicitly linked the characteristics of the children in this case to the profile evidence offered by the experts. For example, the following exchange took place with Dr. Suzanne King:
Q: What types of things has Girl B showed you in her play?
[sidebar conversation excluded]
A: I think the major themes of Girl B’s play have had to do with fear from bad men, with being injured, and with the need for safety and protection.
Q: Are those things, Doctor, of some significance to you?
A: They are because they are things one would not normally see in a child of this age unless she experienced some kind of injurious trauma.
Q: Would the emotional trauma that you have witnessed in Girl B be the result of some sort of power of suggestion in your opinion?
A: No, it could not.
A: Because of the anxiety that she showed, the emotional overlay is not something that she could make up.
Q: Doctor, have you observed anything in Girl B that you might term regression?
A: Yes, I have.
Q: Could you please tell the jurors what you observed about that?
A: A child of Girl B’s age, which is about three and-a-half, at that age the child should have normally passed through the developmental stage where she is really clinging with her mother and she should be able to separate fairly readily with her mother when she feels comfortable. Girl B is not able to do that and according to the history she was able to at one point and now has regressed.
The other things by history: she started bed-wetting which is another form of regression since she was dry for a while.
Q: What’s the significance of that?
A: It’s something that I have seen in children who have been sexually abused.
Q: Has Girl B ever told you about the dreams or nightmares she is experiencing?
A: Yes she has. She has talked about a recurrent nightmare she has where a witch has cut off her hands.
Q: Is that of some significance?
A: Yes, it is, because what it suggests to me is she is preoccupied with injury, with having been injured, and I wouldn’t expect a child of her age to be preoccupied with that unless she had, indeed, suffered some sort of injury.
Q: Was there ever a time, Doctor, when Girl B, in the course of her play, used a car and talked about a tunnel?
A: There was one occasion when she was playing and she was playing that her legs were a tunnel and that cars went through that tunnel. And at one point, there was a crash in the tunnel and a lot of blood in the tunnel and she wanted to tell her mother to come wipe up the blood.
It seems to me that is really an enactment in her play of what she says has actually occurred. What she says actually occurred in terms of being sexually abused.
Q: Doctor, in your opinion, would a child of three and-a-half years of age like Girl B, have the cognitive power and cognitive ability to make up a story concerning sexual abuse?
A: No, I don’t think so. I think a child of her age–and many people have said this, this is not just my opinion–that a child of her age is not cognitively able to describe in graphic detail some sexual event unless she actually experienced it.
Q: Why not?
A: Because a child of that age is not really at a stage where they can talk about something that they haven’t experienced in some way to one of the senses.
Q: You say that Girl B has talked about being afraid, a fear, that type of thing?
Q: Has she talked in particular about who, if anyone, she is afraid of?
A: She said repeatedly that she is afraid of a man named Bernie.
These questions were improper, and elicited answers which went beyond the role of expert.
G. The Prosecutor’s Closing Argument Went Beyond Acceptable Bounds
Mr. Baran need not restate his forceful argument already articulated in his motion for new trial. As with most issues raised, the Commonwealth prefers to argue that the issue has been waived rather than deal with the substance of the argument. This case was fueled from the start by emotion and sympathy. Persons accused of child molestation are often more vilified than murderers. ADA Ford wasted no opportunity, especially in his closing, to juxtapose the sweet innocence of the alleged victims and the monstrous actions of the homosexual defendant. Given what we now know of the evidence that ADA Ford withheld and the improper actions he himself undertook, his impermissible rhetoric should be viewed, at the very least, as part of a pattern of conduct aimed at depriving Mr. Baran of a fair and just trial.
The Commonwealth fails to demonstrate with any force why Mr. Baran is not entitled to a new trial. Mr. Baran has overwhelmingly met his burden of showing that he is the victim of a substantial miscarriage of justice.
Date: Respectfully Submitted,
John G. Swomley
Swomley and Associates
227 Lewis Wharf
Boston, MA 02110
Tel. (617) 227-9443
 Failure to turn over evidence can be attacked on collateral review as either newly discovered or as a violation of a prosecutor’s duty to turn over exculpatory evidence. See Commonwealth v. Tucceri, 412 Mass. 401, 408-09 (1992); Commonwealth v. Limone, 2001 Mass. Super. Lexis 7, 21-22 (2001).
 Indeed, Dr. Bruck highlighted the importance of the videotapes. According to her, videotapes are the only real accurate depiction of what took place when those children were interviewed. A person’s own memory of an event can be unreliable, especially as time passes, because people tend to inject their own bias and remember things in a certain way. Without the videotapes, the only evidence presented about these interviews was testimonial. While an expert may have been able to present a strong case of suggestiveness based on testimony, without a doubt, the videos provide an uncontested, indisputable version of events. Dr. Bruck testified that such evidence is invaluable in a case like this, when credibility and reliability are at issue.
 Indeed, Elizabeth Keegan, who was then the sole victim witness advocate for the Pittsfield District Attorney’s office, and who is today its director, testified that their office no longer uses anatomically correct dolls because “times have changed.” Other District Attorney offices in Massachusetts have also 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).
 The other arguable physical sign of abuse, Boy A’s gonorrhea, is addressed below.
 While this 51A and 51B report was not recorded until after Mr. Baran’s trial, it did take place during Mr. Baran’s appeal and was never given to his appellate counsel. Additionally, there is a videotape of the interview with this child in which the child is promised “a prize” when the interview is done.
 As a consequence, the witness, Dolly Haywood, sat in the courtroom throughout the trial, despite a sequestration order. ADA Ford cross-examined her about this.
 To the extent that counsel could not have discovered this information, it is a result of the prosecutor having withheld it from him.
 In their amended response to defendant’s motion for new trial, the Commonwealth incorporated arguments raised in Defendant’s supplemental memorandum. It did not include a response to Defendant’s claim of a conflict of interest. However, the Commonwealth’s oral representations to the court, in opposing an evidentiary hearing on this issue, indicate that it believes that no conflict existed. Because more evidence has since been presented in the form of live testimony, Mr. Baran will not assume the Commonwealth’s position on this issue.