The Competency Hearing

(All Children’s names have been changed in what follows.)

01/18/85. Lobby Conference Regarding the Competency of Certain Children Under the Age or Five or Six to Testify in This Proceeding.

DA Ford first calls Dr. Suzanne King, a child psychiatrist who has been seeing a three-year-old child witness, Gina Smith. [The Smiths were the second accusing family. Carol Bixby of ECDC called Judith Smith (Gina's mother) right after she learned that the Haneses had accused Baran. Smith questioned her daughter after Bixby's call.] King began seeing Gina on 10/18/84, about two weeks after Judith accused Baran. King says she believes that Gina can differentiate fantasy from reality. [She also says that Gina knows it is wrong to say things that are not so. King relays an incident in which Gina told her that her doll had done something wrong, and that the police were going to get her. Conway, in cross-examination, asks if Gina talks about the police a lot. He also asks if Gina has ever told King a story about the bird's nest game. King says that she has not. Conway asks if King has asked Gina if she knows the difference between the truth and a lie. King answers: "No. That hasn't come up. There's been no reason to because she hasn't said anything that I thought was a lie." Judge Simons asks King when children learn the difference between right and wrong, fantasy and reality. King suggests that occurs around two. Conway on recross asks what the memory span of a three-year-old would be. King says she thinks a three-year-old would be able to remember something that happened two months ago, and longer than that. King opines that if the event were traumatic the child might repress the memory, but that the repressed memory would still be there. King concedes to Conway that children are possibly suggestible.

Next, Virginia Stone is examined by the Court. Stone was five years old [DOB 5/13/79. The police first examined Virginia on 10/13/84, about eight days after Baran's arrest. Virginia had left ECDC at the beginning of September. Marcia, Virginia's mother, makes a statement. Marcia knew that Baran had been arrested, and that one of the alleged victims was Peter Hanes. Marcia was with Peter's mother when Dr. Jean Sheeley called to tell her that Peter had tested positive for gonorrhea. Right after this, Marcia questions Virginia, asking if Baran had ever touched her. According to Marcia, Virginia said, "No. I don't want to talk about it." But Marcia says that Virginia said that Bernie brought little boys and girls to the bathroom. (This was in fact an official part of his duties.) Marcia questioned Virginia further on 10/13/84 (the day of the report) and said that Virginia told her that Bernie had touched her vagina and put his dinky in her mouth. Virginia said that Bernie had done this twice. Marcia calls Detective McGuire, and he picks up Marcia and Virginia and takes them to Dr. Jean Sheeley's office for an examination. The report doesn't indicate the results of the examination. On 10/15/84, Virginia is videotaped, interviewed by Trooper Scott. When asked if Bernie played games, Virginia says, "Yes, hide and seek and puzzles." Trooper Scott then obtains accusations using anatomically correct dolls. Scott asked if Bernie told her not to tell anyone, and Virginia says yes. When asked what Baran said to her if she told, she replied "He would kill my mother."]

The judge asks Virginia what she got for Christmas. In general, the judge always starts out by asking kids non-threatening questions about Christmas, their birthdays, siblings, pets, etc. Part of the exchange about whether Virginia would be a reliable witness went like this.

THE COURT: And do you think it’s a good thing or a bad thing to say something that’s not true?


THE COURT: What do you mean by that?


THE COURT: What do you mean by that, that you should say it if it is true?

VIRGINIA STONE: Yeh, you should say if it’s true.

The Court next examines Gina Smith from the second accusing family. [DOB 6/4/81 Gina left ECDC in 6/84, shortly after her third birthday. The first police report is dated 10/5/84. The Smith's had called their friend Police Captain Dermody to report a possible molestation of Gina by Bernard Baran. Detectives Winpenney and Eaton, and Bruce Cummings from DSS arrive at the Smith house at 10:50 p.m. Gina was nervous and didn't want to talk. Gina eventually says that Bernie touched her one time in the privates. Gina says that Bernie "petted" her and one time they played the bird's nest game. When asked if Bernie touched her fanny, Gina said no. Gina and her mother go talk in the hall. On returning, the mother said that Bernie had found a nest with a dead bird in it and that if the "make believe" police found out, Bernie would be in trouble. Gina also claimed that she and Bernie played the "touch" game, but that she was only allowed to touch Bernie's neck. Gina Smith reveals that she is on the Board of Directors of ECDC. She explained that she knew about the Hanes case because Carol Bixby (the Center Coordinator of ECDC) had called her. After the call, the mother had asked Gina if Bernie "had ever touched her in places that he is not supposed to touch her in. Gina had had a physical after leaving ECDC, and nothing had been found wrong with her. The mother said that Gina started wetting the bed again when she was attending ECDC, but didn't think of this until the police asked if there had been mood changes or anything like that. Judith Smith makes a four-page statement to the police on 10/11/84. The quality of my copy of her statement, unfortunately, is terrible. Judith talks about the call from Bixby re Baran and what she did right after:

When I got off the phone with Carol, I went into Gina's room and asked Gina some questions. I asked Gina if Bernie ever touched her in a funny way. Gina looked at me and told me that Bernie did, that Bernie and Gina would play the Birds' Nest game; Gina said sometimes in Gina's hair and sometimes in Bernie's hair. I did not think that Gina at this time knew shat I meant so I asked if Bernie had ever touched her fanny. At this time, Gina said to me "he touched my privates sometime."

Judith called Jane Trumpy, the interim Director of ECDC, and Jane told her to call the police. Judith calls Captain Dermody who sends the three policemen to the house. Her account is pretty much in agreement with the police report, but Judith talks about her conversation with Gina when they left the room, which is fairly consistent with the report. Judith does make this intriguing statement: "I also recall Gina saying after being asked by me if Bernie had ever wanted Gina to touch his penis, that Gina said yes and pointed to the inside of her foot, meaning that Bernie wanted Gina to touch his 'peenie'." Judith goes on to discuss Gina's videotaping, which took place on 10/6/84. Present in addition to the Smiths were Cummings from DSS and Jane Satullo from the Rape Crisis Center. Gina didn't want to talk much at first, bur Satullo got her to open up, partly through the use of anatomically correct dolls. When asked about the bird's nest game, "Gina wanted to call Bernie on the phone to make sure that it was alright to tell about this." When Judith and Satullo would only allow her to make pretend phone calls, Gina got very nervous and had to go to the bathroom two times. Thus ended the video session. That night Gina claimed to have a stick in her fanny and had a nightmare during which she supposedly yelled, "I don't even go to ECDC anymore." On Monday Gina is taken to Dr. Jean Sheeley, their pediatrician. At the doctor's, Gina gives a detailed account of molestation by Baran: touching in the vagina and rectum, now also claiming Baran touched her with his penie and mouth. Gina also claims that there was blood on her privies. When Judith asks in Baran cleaned up the blood, Gina says yes. There is something about someone witnessing this happening, but the report here becomes illegible. Sheeley tells Judith that there was evidence of stretching and lacerations of Gina's vagina and rectum.

Judith discusses a conversation she had with Gina on 10/11/84 right before coming to the police station. Gina now claimed that Baran had cleaned up the blood with toilet paper and had said, "Oh my God." Judith asked Gina if Bernie had put his penis in her mouth and she said that Gina answered, "Bernie put his penie in my mouth and it squirted pretend worms in my mouth." Gina said that made her sick, "but that Bernie showed her the mother and daddy worms coming down her face and Gina laughed and felt better." Gina said that the teacher who watched all of this happening was Stephanie, not Eileen.]

The judge again once asks the usual non-threatening questions. But this is the heart of the Court’s examination:

THE COURT: Now, Gina, can you tell me, if someone asks you a question and you know what the answer is, what should you do?

GINA SMITH: [Shaking her head from side to side.]

THE COURT: Well, do you know that if someone asks you a question whether it’s a good thing or a bad thing to tell the truth; you want to tell me what that is?

GINA SMITH: Bernie touched me.

MRS. SMITH: You don’t have to talk about that today. You just have to tell if it’s a good thing or a bad thing to tell the truth.

THE COURT: What do you think, Gina? What do you think happens if you say something that isn’t true?

GINA SMITH: I don’t know.

THE COURT: Okay. Well do you think that would make the Judge happy or unhappy?

GINA SMITH: I don’t know.

THE COURT: What do you think? Do you think that it’s something you should do or shouldn’t do?

GINA SMITH: Shouldn’t do.

THE COURT: That is right. You shouldn’t tell something that isn’t true. All right. And if you do that, that is if you say something that isn’t true, could you tell us what would happen to you?

GINA SMITH: I don’t know.

THE COURT: What would you do if someone asked you a question? Would you tell the truth if you knew the answer?

GINA SMITH: [Shaking her head from side to side.]

THE COURT: You’re shaking your head no. What do you mean by that? You have to tell me? Can you tell me?

GINA SMITH: It’s not.

THE COURT: it’s not what, sweetheart?

GINA SMITH: It’s not true.

THE COURT: If it is not true, what should you say? I don’t know if you should say or –

GINA SMITH: You shouldn’t say.

THE COURT: You shouldn’t say anything that’s not true. That is right. I agree with that. I think that’s absolutely good. Do you think a good girl would say something that isn’t true?

GINA SMITH: [Shaking her head from side to side.]

THE COURT: No, a good girl wouldn’t do that. Okay. So, now you are getting ready to get up and go somewhere else? You had enough of this? Okay. You don’t have to say anymore if you don’t want to. Do you want to go?

Gina and her mother leave. It would appear that Judge Simons could give a few lessons in suggestive questioning of children.

The Court next examines Richard Thompson [DOB 6/30/80. The Thompsons first called the police on 10/9/84, four days after Baran's arrest. Richard was videotaped at the DA's office on 10/18/84.] The interrogation is similar to Gina’s, but Richard seems more responsive and easy to communicate with — no doubt because he is a year older than Gina.

Simons next examines John Larson [DOB 7/??/80. The police report on Larson is dated 10/25/84. Larson's mother tells about going to a meeting at ECBD "about the children being abused." At that time, John had been attending ECDC for about 10 months, and "During that time I didn't notice any problems." The mother says that at the meeting they were told to look for certain signs, and she then realized that: "Johnny had some of these signs already. He was touching himself in his private areas and was overly active." John was taped at the DA's office.]

Simons asks the usual birthday, Christmas, pets questions. The heart of Johnny’s examination is:

THE COURT: Okay. Tell me about if I asked you a question, or somebody else asks you a question, is it a good thing or a bad thing?

JOHN LARSON: Good thing.

THE COURT: Okay. But it’s a good thing, I’m talking about your answering the question, what do you say, do you know whether it’s a good thing or a bad thing to tell the truth?

JOHN LARSON: Bad thing.

THE COURT: Bad thing to tell the truth?

JOHN LARSON: No, Good thing to tell the truth.

THE COURT: Okay. What if you don’t tell the truth; is that a good thing or a bad thing?

JOHN LARSON: Bad thing.

THE COURT: Yeh. What would happen if you did that?

JOHN LARSON: Get a big spanking.

THE COURT: Oh, ho, wow! Okay. All right.

The Court next examines Annie Brown. [DOB 8/??/81. The police report is dated 10/16/84. DSS worker Michael Harrigan interviewed Annie on 10/15/84. Detective Peter McGuire interviewed her on 10/19/84. Annie told McGuire "Bernie touched my TuKu [vagina]” and that “Shanya seen him do it.” Annie first says this happened “upstairs with the toys” and then ‘downstairs.” Annie’s mother agrees to have Annie interviewed at the DA’s office on videotape. McGuire concludes by saying, “The girl was very friendly and had no trouble talking about the above.”]

After Simons’ usual battery of lets-get-comfy questions, the examination proceeds as follows:

THE COURT: Okay. And would you tell me, what about if someone asked you a question; do you think it would be a good thing or a bad thing to tell the truth?

ANNIE BROWN: Good thing.

THE COURT: Good thing to tell the truth. What if you don’t tell the truth; is that a good thing or a bad thing?

ANNIE BROWN: Good thing.


ANNIE BROWN: Good thing.

THE COURT: It’s a good — what about to tell a lie; do you know what that means?

MR. BROWN: Sit down.

ANNIE BROWN: I want to sit over here.

THE COURT: Let her get up here for a minute. It’s fun to sit on that thing because it slides. Okay. Now is that something you feel good about, you want to handle that panda?



ANNIE BROWN: This is like a horsey, right?

THE COURT: Yeh, it’s a big bear, sure. What do you do with a horsey; you ride a horsey?


THE COURT: Okay. That is a good idea. What do you think this is?


THE COURT: That is what it is. What color is this?


THE COURT: Okay. Now if I told you that this pipe was yellow, would that be true.

ANNIE BROWN. [Nodding her head up and down.]

THE COURT: You way it would be. Okay. What if I told you it was brown, would that be a true thing?


THE COURT: Well, what color is this pipe, this part of it?


THE COURT: That is right. That’s a white pipe. If I told you that this white part of the pipe — I said that that is really black?

ANNIE BROWN: On that side, it’s yellow.

THE COURT: That is right. This pipe has two colors. One is white and one is yellow. But what if I told you that the whole pipe was one color and it was black, would that be true?



ANNIE BROWN: You have four pipes.

The court: Yeh, I have a whole bunch of pipes. Okay. And —

ANNIE BROWN: If you blow that one, I wouldn’t want to be here.

THE COURT: You wouldn’t want to be here if I was going to smoke that pipe?

ANNIE BROWN: [Shaking her head from side to side.]

THE COURT: I don’t blame you. It would make a lot of smoke.


THE COURT: Smoke is not good, is it?


THE COURT: Okay. All right. Smoke is not good.

ANNIE BROWN: Grandma’s smoke is good.

THE COURT: What kind of smoke is good?

ANNIE BROWN: Grandma’s smoke.

THE COURT: Oh, yeh. Well, you’re selective about your smoke, I see. Okay. That’s a young lady’s prerogative. Okay, Angie, that’s all I have to say to you. I won’t keep you anymore. Thank you for coming.

The final child examined is Peter Hanes, whose family made the initial complaint. [DOB 11/6/80. Actual name: James W. Hanes. Initial police report dated 10/5/84. David Hanes called the police and claimed that blood was found on Peter's penis the previous day. The last day Peter had been at school was on 10/1/84. David Hanes had complained at beginning of school year that Baran was a homosexual and objected to his being allowed to work in childcare. Collias and Beals went to the center and talked with assistant director, Jane Trumpy, who explained that no worker is allowed to be alone with a child. On 10/6/84, David, Peter and Julie Hanes (Peter's mother) go to the police station to make a complaint. On 10/7/84, Peter has a videotaped interview with psychotherapist Jane Satullo of the Rape Crisis Center. Satullo uses anatomically correct dolls. The police report says that Peter claimed that Bernie had touched his "pee pee," but also indicated that Peter was rather uncooperative: "She tried to get more out of him but he didn't want to talk about it. He seemed to be trying to ignore the subject." On 10/13/84, Julie and Peter Hanes, and Detectives Beals and McGuire go to ECDC. Peter takes them to a storeroom where his mother said that things had happened. But once in the room, "Peter had to go to the bathroom and didn't want to talk about it anymore." Then they went to the playground, where the report says that Baran did bad things to Peter.]

This is the record of Peter Hanes’s examination by the Court. (Immediately preceding this examination, Peter Hanes had been interrogated by DSS about Peter’s accusation of sexual abuse against his mother’s live-in boyfriend, John Wilson.)

MR. FORD: Judge Simons, this is Susan Eastland [a social worker], and this is Peter Hanes.

THE COURT: How do you do Peter? How are you? Do you want to have a seat wherever you’re comfortable?


THE COURT: You don’t. You can stand up if you like. You don’t have to do anything you don’t want to do. Are you a little tired, Peter?


THE COURT: Well, you don’t have to stay long at all. As a matter of fact, if you want to rest, you can rest too.

MS. EASTLAND: Do you want to lie down?

THE COURT: I just want to ask you a couple of questions.


THE COURT: All right. Are you so tired you’d rather come back another time? You could do that. Oh, he’s so tired. All right. Well, why don’t we do this –


THE COURT: I’m not going to bother you at all. I’m just going to ask you — That is an interesting thing. A long cord there at the end. Want to pull that down for us?

PETER HANES: No, I can’t.

THE COURT: Yes, you can. See, you just did it. Now be careful because it will snap up, but nothing bad will happen.

PETER HANES: [Playing with the window shade cord.]

THE COURT: Let it go. That’s pretty good.

PETER HANES: Does it go like this way?

THE COURT: It will come all the way down, but then it goes up fast, so don’t get scared if it goes up fast.

[The window shade went up fast.]

THE COURT: Wow! I told you it would do that. Now we’re going to find a very tall person to reach that.

PETER HANES: You could stand on there.

THE COURT: You think so? That’s a good idea. You just gave me the solution. So we won’t need a very tall person. We just need somebody tall enough to stand on the sill.

PETER HANES: You’re big.

THE COURT: I agree. In a couple of ways. All right.

PETER HANES: But I ain’t big.

THE COURT: No. Well, you’re a little boy.

PETER HANES: But I’m bigger a little bit.

THE COURT: When you grow up you’ll be big, and big and bigger. Some day you’ll be bigger than me probably.

PETER HANES: Whose picture in here?

THE COURT: My daughter and my grandson.

PETER HANES: No, it ain’t. Who’s this?

THE COURT: Those are tapes.

PETER HANES: Tapes. Why have you got little ones?

THE COURT: They’re called cassettes.

PETER HANES: Where do you put them on?

THE COURT: I put them on a little tape recorder.

PETER HANES: Where do you put this on?

THE COURT: I’ll show you later, if you’ll wait a minute. First I want to ask you a couple of questions. Okay.

PETER HANES: Why have you got all the pipes?

THE COURT: I have all those pipes because I like to smoke them.

PETER HANES: Want to — can I smoke one?

THE COURT: Little boys don’t smoke pipes.

PETER HANES: You’re so big.

THE COURT: I’ll get it later. Don’t worry about it.

MS. EASTLAND: You don’t need to, he said he’d take care of it.

THE COURT: Peter, what’s your whole name?

PETER HANES: Petey Hanes.

THE COURT: Peter Hanes.


THE COURT: Where do you live, Peter?

PETER HANES: I don’t know.

THE COURT: You don’t know? Did you move just a little while ago?



PETER HANES: I moved from my Mommy.

THE COURT: You’re living somewhere else?

PETER HANES: Why are you doing this?

THE COURT: That lady is using a machine because that’s her job

PETER HANES: Why her got —?

THE COURT: But you can’t touch that. I’ll give you something you can touch later.

PETER HANES: Why her got — why her got papers?

THE COURT: That machine writes on that paper.

PETER HANES: She’s not.

THE COURT: Only Mrs. Cook can do that. Okay. Now I can show you something.

PETER HANES: Whose is this?

THE COURT: That’s a stapler machine that belongs to me.


THE COURT: Because I need one every once in awhile.

PETER HANES: You just got one?

THE COURT: I have just one. Peter, did you tell me how old you are yet? I don’t know if I asked you. How old are you, Peter?

MS. EASTLAND: That’s an easy question.

PETER HANES: No, it ain’t.

MS EASTLAND: Sure it is.

PETER HANES: No, it ain’t.

MS. EASTLAND: Try to answer.


MS. EASTLAND: How old are you?


THE COURT: You’re four. And, Peter, when’s your birthday? Do you know when your birthday is?

PETER HANES: I just had my birthday. [His birthday was 11/6, 2 1/2 months before this hearing.]

THE COURT: When was that?

PETER HANES: Last Week, Last Night.

THE COURT: Well, do you know what your birthday is, what month? Do you know when you’re going to be five years old?

THE COURT: Is he tired now? He really seems to be very tired.

MS. EASTLAND: They did a lot of running around during the wait down there, the children getting restless.

THE COURT: I can see he seems to be very tired. I don’t want to press him. I hate to bring him back again at another time, but I don’t feel I can get a feel —

MS. EASTLAND: The only thing is every once in awhile on occasion when he has become — he gets frustrated, I think, whenever the subject is brought up. But there will be another social worker that will be working with him from Tuesday on — a DSS worker, so it would have to be arranged through them.

THE COURT: I’m talking about Monday morning. I would do it at a specific time. I would cut into whatever else I’m doing, and just do it.

MR. CONWAY: Excuse me, Judge, just a second. Maybe you can find out from her basically what his sleep schedule is, so you can get him fresh in the morning — not just before a nap or just after it.

THE COURT: He’s very tired.

MR. FORD: Judge Simons, can Miss Keegan [Victim/Witness advocate from the DA's office] make a statement to the Court?

MISS KEEGAN: Sometimes if you direct Peter and tell him, that he answers the questions; and he has ways of getting distracted. I think if you tell him you’re going to ask him questions and get it done.

THE COURT: He seems quite tired.

MISS KEEGAN: I’ve seen him like that before.

MS. EASTLAND: That is the way he behaved last time.

THE COURT: All right, Peter. Peter, come down here, please. I’d like to talk to you just quickly.


THE COURT: You refuse to come down; you’re going to stay up there on that sill? You’ve got to come down some time.

MS. EASTLAND: The sooner you come down and talk to the judge, then we can leave.

PETER HANES: You ain’t a Judge.

THE COURT: Why am I not a judge? Because I’m not wearing the black robe?


THE COURT: All right. We’ll fix that.

MS. EASTLAND: We can leave if you answer a few questions. Okay?

[Judge Simons puts his robe on.]


PETER HANES: You’re not the Judge.

THE COURT: Why not? What more do I have to do? Want to see my diploma?

PETER HANES: Get more on.

THE COURT: That is all there is.

PETER HANES: No/ I want you to use that thing that’s hanging up.

THE COURT: That’s just my coat. I’m not going to put on my coat. That’s silly.

PETER HANES: Put your coat on.



THE COURT: Now, Peter, I want to ask you about —

MS. EASTLAND: If you sit behind me you can listen at the same time, right, because we’ll be leaving soon. Before we go, he’d like to ask you some questions.

MR. FORD: Hey, Peter. Peter. Petey. Listen to me. Judge Simons is going to ask you some questions. Okay? It’s going to be real simple. Just listen to what Judge Simons asks you.


MR. FORD: Please. Are you going to help me?

MR. CONWAY: Do me a favor. Get away from that window. It makes me nervous as hell.

MS. EASTLAND: Get down here. No more jumping.

THE COURT: I don’t think it’s going to get us anywhere really, unless you feel a little recess will help and then we’ll try it again. But you’ll have to guide me here.

MISS KEEGAN: Can I have five minutes to just talk to him?

THE COURT: Sure. All right. Why don’t we give you a couple of minutes.

MISS KEEGAN: Peter, Come here.


MR. FORD: You can go outside.

[Peter Hanes left the lobby conference.]

DA Ford next calls Jane Satullo, psychotherapist at the Rape Crisis Center, to testify supporting Peter’s competency as a witness. Satullo has a Mater’s in Psychology from Antioch, obtained in 1983, with an emphasis on child psychology. Satullo characterizes Peter as “a developmentally-delayed child who is very distractable,” but asserts that “he’s very capable and differentiates between what in fact did happen and what did not happen.” Satullo says she believes Peter understand the difference between right and wrong. During cross-examination, Conway tries to assess the extent of Peter’s development delay. Satullo puts him “several months delayed.” Conway asks Satullo how long a child like Peter would remember a traumatic event. Satullo says, “I think he could remember it for a lifetime.” [Satullo, in contrast with King, doesn't suggest he might "repress" a traumatic memory.]

Judge Simons says regarding the children’s competency to testify, “I have no problem as far as the establishing competency for purposes of testifying as to all of them with the exception of Annie Brown, and to a lesser extent, Peter Hanes. Ford then causes a DSS worker named Michael Harrigan to establish competency for Annie Brown. Harrigan has a Criminal Justice degree, an Associate’s degree from North Shore Community College in Beverly. He has a BA in Psychology from the University of Massachusetts and a Masters in Public Administration from Russell Sage College of Troy. Harrigan met with Annie and her mother for less than an hour on 10/15/84. On the basis of that interview, Harrigan considers Annie competent to testify.

The Judge says that he will permit leading questions at trial. He is still undecided about Annie Brown, and agrees to view videotape of her interview. He says that he will inform the jury that the cases are separate and that evidence concerning each child must be considered separately. Conway puts into the record his objection to the Judge’s finding the children competent. Conway mentions that this case and others (presumably McMartin and Amirault) were getting a lot of media attention that would influence prospective jurors. Ford asks if Keegan (the Victim/Witness Advocate) can sit next to him at the counsel table while the children are testifying at trial. The Judge agrees to let her sit where the kids can see her, but not at the counsel table. The witnesses and their parents will be sequestered when Ford makes his opening statement. The courtroom will be closed when the children testify. Simons says that if children prove unable to testify he will have them moved to an adjoining room and have them testify via closed-circuit TV.