Supplement to the New Trial Motion
COMMONWEALTH OF MASSACHUSETTS
Berkshire, ss. SUPERIOR COURT DEPARTMENT
No. 18042 through 18051, and 18100, 18101
COMMONWEALTH OF :
BERNARD BARAN :
REDACTED SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THE MOTION FOR NEW TRIAL
Defendant, Bernard Baran, filed a motion for new trial with this court on June 17, 2004. Still outstanding were multiple discovery orders that various parties opposed. These orders have now largely received compliance. Defendant now possesses additional videos and documents that have revealed new grounds which defendant now must to add to his motion. There are also documents which supplement arguments already made. Each type of evidence is dealt with below.
I. The “Chino” Allegation
In documents obtained by defendant’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 Appendix to New Trial Motion at pg. 454 [Hereinafter “Appendix”]. Trial counsel did have this report, but failed to act on it. Also, it was known that Detective Peter McGuire was aware of this allegation from a letter that he wrote to the West Springfield Police on or around November 7, 1984. See Appendix at 409. What was not known until a few weeks ago was the extent of the abuse and when it occurred.
In documents obtained from the law firm of Morrison, Mahoney and Miller, defendant discovered a Department of Social Services (“DSS”) 51A/B report from this incident. (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.
To be clear, the evidence that Chino had abused Girl E was available to trial counsel through Dr. Sheeley’s report. What was not available until now was the extent of the abuse and the fact that it occurred before the alleged allegation against Mr. Baran. This new evidence raises several legal issues.
1. Failure to Hold a Voir Dire of the Child Complainants
The details of the Chino allegation are remarkably powerful, especially when placed in context alongside the other newly discovered evidence. Another of the complainants, Boy A, had similarly accused someone besides Mr. Baran, John Woodger, of having previously abused him. See New Trial, at 86-93; Appendix, at 138. The District Attorney argues that this type of evidence does not exonerate Mr. Baran but merely inculpates another: “the reports describe allegations made by the child that he was abused by someone else in addition to the Defendant, not instead of him.” Commonwealth’s Response to Defendant’s Motion for New Trial at 14 (emphasis in original). But the District Attorney misses the mark. Evidence of prior abuse is powerful because, “[i]f the victim had been sexually abused in the past in a manner similar to the abuse in the instant case, such evidence would be admissible at trial because it is relevant on the issue of the victim’s knowledge about sexual matters.” Commonwealth v. Ruffen, 399 Mass. 811, 815 (1987).
This exact issue was at the heart of Commonwealth v. Ruffen. In that case, the SJC noted “the Constitution requires that a defendant be permitted to introduce evidence which may materially affect the credibility of the victim's testimony.” Id. at 816. Therefore, “[i]f a defendant challenges the reliability of a child’s testimony about sexual abuse, it is unfair to deprive him of the right to show that the child had personal knowledge of sexual acts and terminology.” Id. at 815. In such situations, if a defendant can show a reasonable suspicion and a good faith basis for the belief, he is entitled to voir dire of the witness in order to develop the evidence. Id.; Comonwealth v. Owen, 57 Mass.App.Ct. 538, 544-45 (2003).
Admittedly, Ruffen was decided after Mr. Baran’s case. However, because it was a case of constitutional dimensions, and because “the theory on which the defendant has relied was not sufficiently developed at the time of trial or direct appeal to afford the defendant a genuine opportunity to raise his claim at those junctures of the case,” Commonwealth v. Randolph, 438 Mass. 290, 295 (2002), quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984), the clairvoyance exception applies and allows defendant to raise this issue now. Indeed, Ruffen was not sufficiently developed. The SJC relied principally on out-of-state cases in arriving at its conclusion that this evidence was constitutionally significant. Ruffen, at 814-15. In any event, even if a Ruffen voir dire were available at Mr. Baran’s trial, failure to request it was ineffective assistance of counsel which “likely deprived [him] of an otherwise available, substantial ground of defense,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1984), and created a substantial risk of a miscarriage of justice. Randolph, 438 Mass. at 295-96.
In Commonwealth v. Owen, the Appeals Court granted a new trial in a case virtually indistinguishable from Mr. Baran’s. The defendant was accused of having abused his daughter when she was between five and nine years old. Owen, 57 Mass.App.Ct. at 539. The victim testified to the defendant having done numerous acts, such as “putting his penis in [her] vagina . . . stick[ing] his penis in [her] butt . . . and “kiss[ing] her on the cheeks and lips.” Id. at 539-40. At trial, in addition to calling the victim, the Commonwealth called “her sister, mother, and a police detective to testify, as well as a physician who examined her shortly after her disclosure.” Id. at 540. Lastly, the Commonwealth argued that “the young victim could not have knowledge of the sexual acts about which she testified had she not been abused.” Id. at. 541.
At trial, counsel had access to a DSS report which predated the alleged abuse. It indicated that “the then two year old victim ‘was able to verbalize that she had observed her mother and [her live-in-boyfriend] hugging and kissing in bed with no clothes on,’ that she had been in possession of photographs depicting them in the nude, and that she had played with anatomically correct dolls in a sexual nature.” Id. at. 541-42. Also, trial counsel was in possession of other DSS reports documenting prior abuse which he never brought to the court’s attention. Trial counsel did bring a motion in limine, but the judge deferred ruling on it and counsel never renewed his request.
The Appeals Court declared that failure to renew this request undeniably prejudiced the defendant and constituted “incompetency and inattention well within the comprehension of Saferian.” Id. at 546. Moreover, the Court held that this was so even if the evidence of prior abuse was not identical:
We see nothing in [Ruffen] that mandates that the evidence of prior sexual abuse of the victim be identical to or the same as that of which the defendant stands accused. Rather, we read Ruffen and its progeny to hold that for any evidence of prior sexual abuse adduced at the voir dire to be admissible at trial, that evidence must show that the prior abuse of the victim was sufficiently similar to the present allegations to account for the victim’s knowledge of the matters comprehended by the indictments against the defendant.
Id. at 546-47.
Similarly, in Commonwealth v. Scheffer, 43 Mass.App.Ct 398 (1997), the court found that counsel should have brought a motion pursuant to Ruffen and that the error was significant enough to warrant a new trial. Among other things, it also noted that “the Ruffen principle might loom less large in a case where there was anatomical or percipient witness evidence (from other than the purported victim) that made the government case of sexual abuse overwhelming.” Id. at 401.
Mr. Baran’s case is virtually indistinguishable from Owen and Scheffer. Here, there was no evidence other than the children’s own testimony. There was no physical evidence and no witnesses to the acts. Moreover, there was an overarching theme advanced by the prosecution that these children could not have possibly lied for they had no other source of information. In his closing, then Assistant District Attorney Ford (“ADA Ford”) drove this home:
Beyond that you heard the child psychiatrist, Dr. King, tell you that a child of such tender years simply does not have the cognitive ability to make up or fabricate a story about sexual abuse. Common sense would tell us that three and four-year-old children simply wouldn’t talk about these types of things unless they really happened.
Jane Satullo, that distinguished child psychotherapist told us that the fact that a child gives the same account of what happened over and over again is extreme significance. That if it were a fantasy or something that a person told the child to say, the child couldn’t repeat it in detail time and time again, that a child of such a young age simply couldn’t remember a fantasy or untruth or a lie for this long a period of time.
Jane Satulo told us that children of this age are no more impressionable on matters of sexual attack than anyone else. You can’t tell a child what to say when the subject is sexual abuse, because they don’t know what you’re talking about unless they experienced it first hand like these children did.
Whatever the standard of review may be, this issue alone is dispositive of Mr. Baran’s new trial motion–whether the clairvoyance exception to Ruffen counsels that this motion is Mr. Baran’s first opportunity to raise the issue or whether this court is reviewing the issue as to whether it created a substantial risk of a miscarriage of justice. The legal assertions and factual allegations in support of this ground are fully developed. Granting defendant a new trial on this ground would obviate the need to decide other, more factually driven, issues and eliminate the need for an evidentiary hearing. The fact that evidence of prior abuse for two of the victims has just been unearthed, was not the subject of a voir dire hearing, and was not used at Mr. Baran’s trial to rebut the allegations that these children had no other source of knowledge compels this court to grant Mr. Baran a new trial.
2. Failure to Turn Over Brady Material
The newly discovered DSS report also bolsters the claim of prosecutorial misconduct raised in the initial motion. The initial motion argued that the Commonwealth had a duty to turn over various categories of exculpatory evidence which it never did. See New Trial at. 265-270. At the time, it was assumed, but not confirmed, that there existed a DSS report concerning Chino. There is no doubt now that such a report existed.
More importantly, there is no doubt that the report existed, and the Pittsfield Police Department knew about it, long before Mr. Baran’s trial. Detective Peter McGuire reported both Mr. Baran and Chino to DSS on the same day. On October 13, 2004, he got a call from Girl E’s mother concerning Mr. Baran. She came into the police station where Det. McGuire first interviewed her and then drove her to Dr. Sheeley’s office for an examination. Tr. 6/56-57. Thereafter, Det. McGuire personally reported the two allegations to DSS. He even wrote a letter to the Springfield Police Department–which was also never turned over to Mr. Baran–letting them know about Chino. Appendix at 409; see also supra, note 2.
For some reason, Det. McGuire never mentioned the Chino allegation in any police report he authored. He also failed to mention the Chino allegation to Trooper Robert Scott, the officer who interviewed Girl E. Had Trooper Scott known, he would have used different interrogation techniques and been much more skeptical of Girl E’s allegations generally. See Affidavit of John Swomley (Exhibit 2). But there is no doubt that Det. McGuire knew of the Chino allegation, knew that he had authored a DSS report about it, and knew that it was related to Mr. Baran’s case. As a police officer directly involved in Mr. Baran’s investigation–indeed, he testified at his trial–he was obligated to disclose this information under Brady, even if the prosecutor never knew of it. See Commonwealth v. Baldwin, 385 Mass. 165, 177 n.12 (1982). Because of Det. McGuire’s efforts to seemingly purge the Pittsfield Police Department records of any mention of Chino, and because it was the Springfield District Attorney’s office that likely received the DSS report, it is indeed possible that ADA Ford did not know this report existed.
The report, with its very detailed account, would have been immeasurably useful to a competent trial counsel. For one, as already argued, it would have been the basis of a voir dire of Girl E. But, also, it could have been used to effectively cross-examine and impeach, among others, Det. McGuire. Det. McGuire’s testimony concerning Girl E made no mention of Chino. In cross-examining him, trial counsel, lacking this knowledge, focused only on Mr. Baran’s arrest instead of bringing up the fact that Det. McGuire knew about Chino but never seemingly relayed that information to any other officer involved in the investigation or even the District Attorney’s office. See Commonwealth v. Britto, 433 Mass. 596, 605 (2001) (complete failure to impeach a witness may rise to the level of ineffective assistance). In short, this newly discovered DSS report not only confirms the allegations of impropriety made in the initial motion, but adds an element of intentional misconduct by Det. McGuire.
II. Grand Jury Videotapes of Child Witnesses
At the time of the new trial motion, the grand jury transcripts could not be located. There was very little known about the grand jury hearing except that edited videotapes of interviews with the children were presented along with certain testimony. Since filing the initial motion, the District Attorney was able to locate some of the unedited videotapes along with 16 pages of Jane Satullo’s testimony. (Exhibit 3). However, the District Attorney claims it has not been able to locate any other documents related to the grand jury hearing. Unfortunately, it seems as if this is all that is left of Mr. Baran’s grand jury hearing.
That said, the videotapes contain extensive footage of the lengthy interviews conducted with the children at the District Attorney’s office–much of which is exculpatory. Some interviews last up to forty (40) minutes, yet only a very small, biased sampling was presented to the grand jury and, more importantly, to trial counsel.
1. New Brady Violations
It was never quite clear which videotapes trial counsel had access to, i.e. the edited, grand jury versions or the unedited versions. The transcripts revealed that trial counsel never viewed the tapes until the third day of trial, but left ambiguous what was actually viewed. See New Trial at 24; Tr. 4/10. Discovery from the District Attorney now reveals that trial counsel only had access to the edited versions, as indicated in a letter acknowledging receipt of the tapes by Leonard Conway dated January 22, 1985. (Exhibit 4). The letter states that Conway received an edited version of Boy C’s interview and the “Grand Jury Presentation” tape which had spliced together excerpts from the interviews with Boy A, Girl B, Boy D, and Girl F. Additionally, Mr. Baran himself spoke with Mr. Conway about only having access to the “edited” videos. (Exhibit 5). Finally, at sidebar, ADA 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.
The edited versions fail to capture the blatantly exculpatory evidence contained within the full length videos; and with access now to the full versions, it is clear that the entire tape of each interview was Brady material which was never turned over to trial counsel. They contained statements which would have undermined the credibility of the child witnesses and could have been used to impeach their testimony. See U.S. v. Ruiz, 536 U.S. 622, 628 (2002); U.S. v. Giglio, 405 U.S. 150, 154 (1972); Commonwealth v. Castro, 438 Mass. 160, 167-68 (2002). 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.
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. Thus, trial counsel did not see the difficulty Boy A had in staying still and answering any questions by the interviewer and the fact that his parents had to come in and try to calm him down. Indeed, the children were all largely unresponsive. The interviewer also used donuts to reward Boy A when he answered her; counsel never saw this. But, most importantly, counsel did not see any of Boy A’s exculpatory testimony, all of which could have been used to undermine not only his credibility but the credibility of the entire case. And not only Boy A–trial counsel did not see any of the myriad exculpatory statements given by each child in their interview, as demonstrated by the following excerpts:
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?
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?
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?
Q: He just went and did what?
Q: And after he pulled, after he pulled on your pee pee, did he tell you anything then? Did he give you anything?
Q: No. Did he give you a box of donuts?
Q: Did he give you a box of donuts?
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: Now, did Bernie touch you?
Transcript pg. 32
DAD: Is Bernie bad?
Transcript pg. 34.
Q: [ ] Did you play, did you play a game called "The Touching Game" at ECDC?
. . .
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?
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: 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?
Transcript pg. 16-17.
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.
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?
Q: Tookoo. And Bernie touched you there? Did he hurt you?
A: Uh, yeah.
Q: No? He just touched you? Did he put his hand inside you?
Q: – in your pants?
Transcripts at 9-10.
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?
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?
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.
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. Boy D? 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? Boy D?
Transcripts at 32-33.
Q: Boy C? Can you remember something that happened in the woods that you didn’t like?
Transcripts at 34.
These statements could have been used by trial counsel in many ways. Most importantly, there were statements made by the alleged witnesses suggesting defendant did not in fact do anything to them. Such statements are quintessentially exculpatory and should have been made available to trial counsel.
2. Supplement Argument of Suggestiveness
In the New Trial Motion, defendant argued that the children’s testimony was tainted by improper suggestive interviewing. The evidence relied on consisted of what little was known of the edited videotapes and what could be gathered from the trial transcripts and other documents. However, the entire videotapes of the initial interviews with the children finally reveal the glaring deficiencies in the methods employed to get these initial disclosures. The method of interviewing was the epitome of suggestiveness. Analysis of the techniques used will be supplied in the evidentiary hearing by Maggie Bruck. See Motion for Evidentiary Hearing.
3. McCarthy Hearing
As noted, the videotapes contain a wealth of exculpatory evidence. Additionally, they now bring to light the egregious omission of exculpatory evidence withheld from the grand jury in violation of Commonwealth v. McCarthy, 385 Mass. 160 (1982) and Commonwealth v. O’Dell, 392 Mass. 445 (1984). Because the videotapes were in the possession of the Commonwealth, yet never turned over to defendant until now, this is the first opportunity defendant has to make this argument and it should thus be reviewed as if it were a preserved appellate argument.
A grand jury must hear sufficient, competent evidence of criminality or else “all subsequent proceedings taken in reliance upon the indictment [are] void.” McCarthy, 385 Mass. at 162, quoting Connor v. Commonwealth, 363 Mass. 572, 574 (1973). Evidence is not competent if an indictment results from having made an “unfair and misleading” presentation which impairs the integrity of the proceedings. O’Dell, 392 Mass. at 446. Moreover, two further elements must be shown. First, there must be a showing that the “deceptive evidence was given knowingly and for the purpose of obtaining an indictment.” Commonwealth v. Mayfield, 398 Mass. 615, 622 (1986). In this respect, “reckless disregard of the truth leading to the presentation of false or deceptive evidence could also warrant dismissal of an indictment.” Id. Secondly, a defendant must make a showing that the presentation of deceptive evidence “probably influenced the grand jury’s determination to hand up an indictment.” Id.
There can be little doubt that the presentation of the edited tapes was misleading. It painted a distorted picture of the children’s interviews. The edited tapes made the children seem sure of themselves, when in reality they were not. The sheer length of the videos alone demonstrates how tedious it was to even get a few “useable” sound bites to play for the grand jury. It would have been one thing if the District Attorney had edited out, for example, a scene where a parent drops off the child and then leaves the room. But the District Attorney edited out substantive testimony.
As for the Mayfield test, the first prong, that the evidence was submitted intentionally or even recklessly, is easily shown. The District Attorney intentionally and purposefully kept out evidence which would have questioned the accuracy of the children’s testimony by editing the tapes and “sanitizing” them for the grand jury. The very act of editing demonstrates a conscious decision to exclude certain statements from the grand jury. The second prong, that the deceptive evidence probably influenced the decision to indict, is also met. The most important witnesses in that proceeding were the children, even if only via videotapes. Any other witnesses, such as Jane Satullo, were only called to bolster and possibly explain the significance of the children’s testimony. But the children were the source of the allegations and simply indispensable–without those videos, there was no competent evidence of abuse. Had the children not accused the defendant, then the lack of physical evidence and witnesses would have surely resulted in a lack of an indictment.
In a very similar case, the SJC held that evidence of this sort must be presented to the grand jury:
Where, as here, evidence known to the prosecutor would greatly undermine the credibility of an important witness, the prosecutor must at least alert the grand jury to the existence of that evidence. If the grand jury were not made aware of circumstances which undermine the credibility of evidence that is likely to have affected their decision to indict, then the appropriate remedy may be dismissal of the indictment.
Commonwealth v. Connor, 392 Mass. 838, 854 (1984). The indictments were not dismissed in Connor, though, because even though the prosecutor had withheld the fact of a witness’ prior inconsistent statement, the witness himself acknowledged the statement in his testimony. Id. at 854-55.
Unlike Connor, the evidence that would undermine the witnesses’ credibility in this case–that the children explicitly denied defendant had done anything to them–was not presented by any other witness. Indeed, the transcript of Jane Satullo’s testimony demonstrates that she was never asked whether there was anything the children said in the interviews which was not in the clips of the tapes shown to the grand jury. Ms. Satullo could have testified about the other statements the children had made exonerating defendant, and then the grand jury would have been called upon to decide which version was true. But she did not, and so the grand jury was given an extremely lopsided presentation.
III. Conflict of Interest
Newly discovered documents reveal that defendant’s appellate counsel had a conflict of interest of which defendant was never apprised. Defendant retained David O. Burbank and Leonard H. Cohen, from the law firm of Cain, Hibbard, Myers & Cook (“Cain, Hibbard”), to work on his appeal. A letter documents their retention to May, 1985. (Exhibit 6). On May 20, 1985, Mr. Baran’s trial counsel, Leonard Conway, wrote to Mr. Cohen confirming their conversation about exchanging trial documents. (Exhibit 6).
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. (Exhibit 7). The only logical explanation, based on the present discovery, is that Cain, Hibbard had begun investigating the case in anticipation of representing Girl E and her mother Mother E (“Girl E/Mother E”). Indeed, on February 1, 1985 an employee of Cain, Hibbard 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 victims. (Exhibit 8). On February 4, 1985, Mr. Burbank sent at least two letters requesting copies of documents from defendant’s criminal trial on behalf of his clients, Girl E/Mother E. (Exhibit 9). One letter was addressed to ADA Ford; the other was addressed to Girl E’s pediatrician, Dr. Jean Sheeley. (Exhibit 9). On February 5, 1985, Cain, Hibbard opened a file for Mother E according to their own filing system. (Exhibit 10).
Cain, Hibbard eventually ended its representation of Girl E/Mother E, though it is unclear when. Howard Guggenheim filed a civil claim on behalf of Girl E/Mother E in May of 1985 (around the same time Cain, Hibbard began representing the defendant). (Exhibit 11). However, Cain, Hibbard received a payment in the Girl E/Mother E case as late as April 16, 1985. (Exhibit 12). As part of the eventual settlement in the civil case, it is clear from Mr. Guggenheim’s record that he paid Cain, Hibbard $28.25 on April 16, 1985. (Exhibit 12). The payment was likely for costs they incurred in retrieving copies or in copying their file for Mr. Guggenheim–either way, it reasonably demonstrates that Cain, Hibbard had a file in the Girl E/Mother E case. Cain, Hibbard has since disposed of the Girl E/Mother E file. (Exhibit 10).
“A defendant is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by the commitments to others.” Commonwealth v. Michel, 381 Mass. 447, 453 (1980), quoting Commonwealth v. Davis, 376 Mass. 777, 780-81 (1978). A defendant’s conviction will be reversed if he shows his lawyer had an actual conflict of interest. See Commonwealt v. Fogarty, 419 Mass. 456, 459 (1995); Commonwealth v. Teti, 60 Mass.App.Ct. 279, 284 (2004). Upon such a showing, a defendant need not demonstrate any prejudice–the conflict in and of itself impairs the assistance of counsel guaranteed under the Massachusetts Declaration of Rights. Fogarty, supra, at 459; Teti, supra, at 284. An actual conflict arises “where the independent professional judgment of trial counsel is impaired, either by his own interests, or by the interest of another client.” Teti, supra, at 284.
If a defendant cannot demonstrate an actual conflict, he may still prevail by showing that there existed a potential conflict of interest which resulted in actual prejudice. Fogarty, supra, at 459; Teti, supra, at 286. Prejudice is “measured against the standard in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), as in cases involving claims of ineffective assistance of counsel.” Teti, supra, at 286-86, quoting Commonwealth v. Corken, 432 Mass. at 272.
The circumstances surrounding defendant’s appellate counsel, and their representation of him, inexorably lead to the conclusion that there existed an actual conflict. Since Mr. Burbank had requested documents concerning his own clients, and had included a signed release by Mother E, it can reasonably be inferred that Mr. Burbank received the documents he requested from both the District Attorney’s office and from Dr. Sheeley. Through these documents, Mr. Burbank and Cain, Hibbard were put on notice that Girl E had made a complaint against Chino that he had abused her on or around July 4, 1984. Defendant first learned of this accusation through Dr. Sheeley’s notes dated October 13, 1984. Without a doubt, these notes would have been in the documents which Dr. Sheeley turned over to Mr. Burbank. Additionally, Dr. Sheeley likely turned over many medical documents which were likely privileged and were only acquired specifically because Mr. Burbank represented Girl E/Mother E. These documents may have included the newly discovered DSS report or even another authored by Dr. Sheeley, since she was a mandatory reporter under G.L. c. 119 § 51A.
Moreover, at this stage, as counsel for Girl E/Mother E in an action arising out of Mr. Baran’s alleged conduct, Mr. Burbank knew of a crucial fact which would have diminished, if not eliminated, the ability of his clients to recover damages. If Mr. Baran was not the person who molested Girl E, then any recovery against ECDC would be in jeopardy. His interest and loyalty to the Girl E/Mother E required him to downplay the Chino allegation and emphasize the Baran one instead.
Therefore, when Cain, Hibbard took on Mr. Baran’s appeal, they were placed in a situation of having both acquired privileged information which inhibited them from competently representing the defendant and of competing loyalties See Commonwealth v. Soffen, 377 Mass. 433, 437 (1979). The Rules of Professional Conduct in effect at the time counseled against representation in these instances. Disciplinary Rule 5-105(A) stated that “[a] lawyer shall decline proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests[.]” 392 Mass.783 (1981). In certain cases this could be waived, though only if each client consented, D.R. 5-105 (C), 392 Mass. 784; but clearly Mr. Baran did not consent in this case since he was never even told of the conflict. (Exhibit 5). The current version of this rule notes that “[l]oyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.” Mass.R.Pro.C. 1.7, comment 4.
Cain, Hibbard, and specifically Mr. Burbank, should never have agreed to represent Mr. Baran. They had information which they could not share with Mr. Baran or use in his defense, apart from the information they received from trial counsel and from the District Attorney. By representing Girl E/Mother E, albeit for a short period of time, they had in their possession privileged documents which they were ethically prevented from turning over to a third party; logically, they were prevented from using them to aid Mr. Baran or risk breaching client-lawyer confidentiality they had established with Girl E/Mother E. See D.R. 4-101, 392 Mass. 778 (1981); Mass.R.Prof.C. 1.6 (“The confidentiality rule applies not merely to matters communicated in confidence by the representation, whatever its source)
Additionally, it is unclear what Mr. Burbank’s relationship was with respect to his representation of Girl E/Mother E when he first took on Mr. Baran’s case. In some instances, even though an attorney’s representation of a client has ended, an ongoing relationship with that client causes a conflict when representing a defendant in a related matter. See Commonwealth v. Martinez, 425 Mass. 382 290 n.7 (1997); Commonwealth v. Wooldridge, 19 Mass.App.Ct. 162, 167-68 (1985). In other cases, courts have found actual conflicts when the same law firm represented both a defendant and a prosecution witness, even if the representation of the witness was in an unrelated civil matter. See Commonwealth v. Hodge, 386 Mass. 165, 168-69 (1982), and cases cited. Mr. Baran’s case mirrors these scenarios: the representation of the civil clients was in a related matter and its success depended entirely on Mr. Baran’s guilt.
Lastly, even if this court finds there was no actual conflict, given the newly discovered documents, then at the very least defendant’s appellate counsel had a potential conflict of interest. A court must reverse a conviction if counsel had a potential conflict which adversely prejudiced the defendant. “To show that he was materially prejudiced, a defendant must show that irremediable harm ha[d] resulted and that it prevent[ed] the possibility of a fair trial.” Commonwealth v. Griffin, 404 Mass. 372, 377 (1989).
In their appellate brief, Cain, Hibbard did not raise the Chino allegation. As noted in the New Trial Motion, they were handcuffed from raising it as a preserved appellate issue because trial counsel never entered it into the trial record. They were not, however, barred from claiming trial counsel was ineffective in not exploring the allegation further. Trial counsel did not argue that someone other than Mr. Baran may have abused Girl E and he failed to use this evidence to cross-examine or impeach Girl E, her mother, or Dr. Sheeley. Indeed, he failed to do what any competent attorney would have done when confronted with such clearly exculpatory evidence–use it to defendant’s advantage. Appellate counsel should have argued that trial counsel was ineffective–but they did not. With this newly discovered evidence of their conflict of interest, it is apparent why that was so. Had Cain, Hibbard raised the issue that trial counsel was ineffective, they would have likely prevailed.
For these reasons, and those already argued in the initial motion, Defendant is entitled to a new trial.
John G. Swomley
227 Lewis Wharf
Boston, MA 02110
 Indeed, failure to act upon this document was a ground for claiming in the new trial motion that trial counsel was ineffective. See New Trial Motion pg. 225-26 [Hereinafter “New Trial”].
 Trial counsel did not have access to this letter and it is believed that the document likely came from one of the civil defense firms issuing a subpoena for records from the Springfield Police Department.
 Of these videotapes, defendant now possess ostensibly the full interviews with Boy A, Girl B, Boy C, and Boy D.
Boy C’s video was not shown to the grand jury.
Defendant actually has three versions of Girl B’s interview. One version is the full interview, one is the portion shown to the grand jury, and the third is somewhere in between. Defendant does not know the purpose of the third version and how or when it was ever used. See, infra, note 6.
Defendant was also given two versions of the interview with Girl F, and assumes that one of them is the entire interview–but no one has been able to confirm that.
Finally, the interview of Girl E, conducted by Trooper Scott, has yet to be found–if it even exists. It is also unknown whether it was presented to the grand jury.
 Again, there is no indication that trial counsel received the videotape of Girl E’s interview or that the video was shown to the grand jury. Indeed, there is no reference to Girl E’s video or its creation in any transcript or document save the police report the day of the interview which describes the monitor setup for the interview. Appendix pg. 128.
 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.
 Defendant has submitted transcripts of the interviews in his appendix. The parts of the transcript in bold represent the portions of the tapes contained in the edited versions shown to both the grand jury and to trial counsel.
For completeness, defendant has also added a transcript of the third version of Girl B’s video. See, supra, note 3.
 According to Cain, Hibbard, they did not officially open a file in this case until February 5, 1985. (Exhibit 10). However, they had taken action in this case before that date. See Exhibits 8 and 9 and the remaining text of this paragraph. Therefore, it is logical to assume that the request for the search warrant and affidavit before defendant’s trial was done in connection with the Girl E/Mother E civil case.