The Bernard Baran Justice Committee

COMMONWEALTH OF MASSACHUSETTS

                                           MASSACHUSETTS APPEALS COURT

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BERKSHIRE COUNTY                      NO. 2007-P-1096

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COMMONWEALTH OF MASSACHUSETTS,

Appellant

v.

BERNARD BARAN,

Appellee

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BRIEF FOR APPELLEE ON APPEAL FROM THE BERKSHIRE SUPERIOR COURT’S ALLOWANCE OF THE DEFENDANT’S MOTION FOR A NEW TRIAL

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JOHN G. SWOMLEY                                   HARVEY SILVERGLATE  

BBO # 551450                                              BBO # 462640

ERIC TENNEN                                             Of Counsel,Good & Cormier

BBO # 650542                                              83 Atlantic Avenue

SWOMLEY & ASSOCIATES                     Boston, MA 02110  

227 Lewis Wharf                              (617)523-5933

Boston, MA 02110

(617) 227-9443                                                        

October, 2007

                                            TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . ii

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . .1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . 4

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 21

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 24

I.          Standard of Review . . . . . . . . . . . . 24

II.         Judge Fecteau Properly Found that Trial Counsel was Severely Ineffective in Failing to 1) Use the Unedited Videotapes, 2) Consult with an Expert and 3) Prepare For Trial in any Meaningful Manner . . . . . . . . . .  27

III.        Judge Fecteau properly held that various errors, either by themselves or collectively, and in conjunction with trial counsel’s ineffectiveness, created a substantial miscarriage of justice . . . . . . . . . . 43

IV.       If this court finds Judge Fecteau ruled in error, it must remand the matter so Judge Fecteau can rule on the many claims raised by Appellee which he found unnecessary to decide . . . . . . . . . . . . . . . . . . . . .  51

CONCLUSION .. . . . . . . . . . . . . . . . . . . . .  52

ADDENDUM . . . . . . . . . . . . . . Following Conclusion

APPENDIX . . . . . . . . . . . . . . Following Addendum

TABLE OF AUTHORITIES

Cases

Boice-Perrine Co. v. Kelley, 243 Mass. 327 (1923) . . . . . .  31

Commonwealth v. Adamides, 37 Mass.App.Ct. 339 (1994) . . . 25, 48

Commonwealth v. Amirault, 404 Mass. 221 (1998) . . . . . . . . 30

Commonwealth v. Baker, 440 Mass 519 (2003) . . . . . . . . . . 27

Commonwealth v. Bousquet, 407 Mass. 854 (1990) . . . . . . . . 47

Commonwealth v. Buck, 64 Mass.App.Ct. 760 (2005) . . . . . . . 29

Commonwealth v. Burke, 339 Mass. 521 (1959) . . . . . . . . .  45

Commonwealth v. Cavanaugh, 371 Mass. 46 (1971) . . . . . . . . 27

Commonwealth v. Daye, 411 Mass. 719 (1992) . . . . . . . . . . 24

Commonwealth v. Fayerweather, 406 Mass. 78 (1989) . . . . . .  45

Commonwealth v. Garcia, 66 Mass. App. Ct. 167 (2006) . . . 28, 29

Commonwealth v. Haggerty, 400, Mass. 437(1987) . . . . . . 28, 31

Commonwealth v. Lataille, 366 Mass. 525 (1974) . . . . . . . . 50

Commonwealth v. LeFave, 430 Mass. 169 (1999). . . . . . .  30, 44

Commonwealth v. Marshall, 356 Mass. 432 (1969) . . . . . . . . 49

Commonwealth v. Martin, 417 Mass. 187 (1994) . . . . . . . 48, 49

Commonwealth v. Myers, 363 Mass. 843 (1973) . . . . . . . . .  50

Comonwealth v. Owen, 57 Mass.App.Ct. 538 (2003) . . .  36, 37, 39

Commonwealth v. Randolph, 438 Mass. 290 (2002). . . . .35, 36, 44

Commonwealth v. Roberio, 428 Mass. 278 (1998) . . . . . . . .  27

Commonwealth v. Rondeau, 378 Mass. 408 (1979) . . . . . . . . .47 Commonwealth v. Ruffen, 399 Mass. 811 (1987) . . . . . . . . . 35

Commonwealth v. Saferian, 366 Mass. 89 (1974) . . . . . .  25, 26

Commonwealth v. Scheffer, 43 Mass.App.Ct 398 (1997) . . . .37, 38

Commonwealth v. Staines, 441 Mass. 521 (2004) . . . . . . . .  27

Commonwealth v. Stetson, 384 Mass. 545 (1981) . . . . . . . . .47

Commonwealth v. Williams, 379 Mass. 874 (1980) . . . . . . . . 48

Commonwealth v. Zinser, 446 Mass. 807 (2006) . . . . . . . . . 25

Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998) . . . . . . 46

State v. Bates, 507 N.W.2d 847(Minn. App. 1993) . . . . . . . .45

State v. Woodard, 146 N.H. 221, 225 (2001) . . . . . . . . . . 45

Stuart v. D.N. Kelley & Son, 331 Mass. 76 (1954) . . . . . . . 31

Strickland v. Washington, 466 U.S. 688 (1984) . . . . . . . . .27

United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988) . . . 45 Waller v. Georgia, 467 U.S. 39 (1984) . . . . . . . . . . .48, 49

Statutes

M.G.L. ch. 263, § 4 . . . . . . . . . . . . . . . . . . . . .  49

M.G.L. ch. 263, § 4A . . . . . . . . . . . . . . . . . . . . . 49

Rule

Mass.R.Crim.P. 3 . . . . . . . . . . . . . . . . . . . . . . . 49

Mass.R.Crim.P. 14 . . . . . . . . . . . . . . . . . . . . . . .51

United States Constitution

Sixth Amendment                                                                     . . . . . . . . . . . . . . . . . . . . . 24, 27

Fourteenth Amendment. . . . . . . . . . . . . .                                                                . . . . . 24, 27

Massachusetts Declaration of Rights

Article 12 . . . . . . . . . . . . . . . . . . . . . . . . 24, 27

ISSUE PRESENTED

I.          Whether Judge Fecteau properly found that trial counsel was ineffective for 1) failing to seek, or use, unedited videotapes of interviews conducted with the child witnesses which contained a substantial amount of footage showing grossly inappropriate and suggestive interviews 2) failing to consult with an expert, and 3) failing to adequately investigate or prepare for the defendant’s trial.

II.         Whether Judge Fecteau properly held that various errors, either individually or collectively, and in conjunction with trial counsel’s ineffectiveness, created a likelihood of a substantial miscarriage of justice.

III.        Whether, if this court finds Judge Fecteau ruled in error, it must remand the matter so he can rule on the many other claims raised by Appellee which he found unnecessary to decide.

STATEMENT OF THE CASE

The defendant agrees with the Commonwealth’s Statement of the case but adds the following. One of the most important pieces of evidence upon which Judge Fecteau relied, and which was not available to trial counsel, was copies of the unedited videotapes of the child interviews conducted in preparation for this case. An edited video was put together for presentation to the grand jury, but the entire unedited videotapes were unavailable.

Obtaining copies of the unedited tapes was extremely difficult even years after the trial; indeed, it took almost four years after first seeking them in conjunction with the new trial motion. Motion counsel moved for copies of the tapes in December, 2000. Dec. 6, n.10.^[1] District Attorney Gerard Downing represented the Commonwealth at that time. On January 22, 2001, an interim order was issued requiring the Commonwealth to certify their existence or enter any objections. The Commonwealth sought three extensions. After a hearing, Judge Fecteau  entered a second order noting that one videotape was found in the possession of the Clerk’s office and that the Commonwealth had located two tapes which had been shown to the grand jury. Eventually, a protective order was prepared to allow motion counsel access to the tapes. Ibid.

Over the next year and a half, motion counsel continued to seek copies of the unedited tapes. The three tapes that had been located were being held by the clerk’s office. On July 23, 2003, the clerk was ordered to send the tapes to motion counsel, which was done. Meanwhile, D.A. Downing purported to continue to look for the unedited tapes to no avail. However, DA Downing suddenly passed away on December 15, 2003. Ibid.

At that point, David Capeless was named acting District Attorney and took over for DA Downing. After familiarizing himself with the case, DA Capeless represented that the tapes were not with the file but he was attempting to locate them. Finally, on September 17, 2004, during a discovery hearing, DA Capeless reported his discovery, in a box of old DUI tapes, of five unedited videotapes of the interviews (Boys A, C, and D and Girls B and F), and delivered copies to the defendant.^[2] Ibid.

STATEMENT OF FACTS

The statement of facts is taken directly from Judge Fecteau’s decision.

In 1984, Bernard Baran worked at the Early Childhood Development Center (“ECDC”) as a teacher’s assistant. Dec. 4. Around October 5, 1984, boy A’s family contacted the police to report that Mr. Baran had molested their child. Dec. 4; MNT App. 94-95. That night, Girl B’s mother received a telephone call informing her about the pending investigation against Mr. Baran. Dec. 4; Tr. 4/131-32, 144-45. She contacted her friend, a Captain on the police department, and reported that her daughter may have been molested. Dec. 4; MNT App. 96-97. The Captain, in turn, contacted two other detectives who, with Department of Social Services (“DSS”) worker Brian Cummings, eventually visited Girl B’s residence that same night at 10:50 p.m. Ibid. Mr. Baran was arrested the next day on two counts of indecent assault and battery. Dec. 4; MNT App. 99-100.

Beginning on October 9, 1984, the two accusations became public and local and statewide newspapers began reporting the case. Dec. 4; see generally MNT App. 164-170. The DSS held a “good touch, bad touch” puppet show at ECDC on October 11, 2005. Dec. 4-5. Though no transcript exists, it is known that many of the children who were the subject of DSS investigations, including some of the children that testified against appellee, attended the puppet show. Dec. 5. Around the same time, ECDC sent several letters to parents about the accusations, arranged for various parent and child support groups, and advised parents about the threat of gonorrhea. Dec. 5; MNT App. 630-647. Following these events, at least four more children made allegations against Mr. Baran, which the police investigated, and who eventually testified at trial: Boys C and D, and Girls E and F. Dec. 5.

The six children who testified at trial were repeatedly interviewed by various persons leading up to trial, including parents, DSS investigators, police officers, therapists, rape crisis center workers, and prosecutors. Interviews were videotaped, apparently with the intention of substituting them in lieu of the children’s live testimony, both at the grand jury and at trial. While the children did eventually testify at trial, they did not testify at the grand jury. Instead, a short videotape containing small snippets of their interviews was played. Ibid.

The full videotapes contain ostensibly the entire interviews conducted with the children on the dates in question, although not every unedited videotape has been discovered to date. Dec. 5-6, and n.9. In total, there existed one composite tape containing the edited snippets that were shown to the grand jury, full taped interviews for five children (with the possible exception to Girl B and F as noted below), and one tape containing an edited snippet of Boy C’s interview whose case was not presented to the grand jury but instead became the subject of a waiver of indictment by the defendant and a DA’s complaint. Dec. 5, n. 9.

No videotape of Girl E has ever been produced, although there is a reference to her interview being videotaped in a police report dated October 15, 1984. Dec. 5, n.9; MNT App. 128. Additionally, it is still unclear whether the videotape of Girl F has been found in its entirety. Dec. 5, n9. Lastly, there are actually three versions of Girl B’s video: one is the edited portion shown to the grand jury, another is a longer version believed to be the full interview, and the third is a version longer than the one shown to the grand jury but shorter than the full one. It is unknown why so many versions exist. Ibid.

One thing is clear: in the course of trial discovery, the defendant and his trial counsel were never given access to the unedited tapes; rather, trial counsel only had access to the edited snippets. Dec. 7, 31-32. Because the tapes contained incredibly important information, Judge Fecteau apparently found it unnecessary to decide whether the District Attorney at trial had failed to provide them to trial counsel or whether they were available and trial counsel simply did not make an effort to view them. Dec. 24. For the most part, he operated on the conclusion that if trial counsel had the tapes and did not use them, he was ineffective. The converse, of course, is that if the District Attorney did not turn them over, a Brady violation occurred.

The difference between the edited tapes provided to trial counsel, and the unedited tapes which trial counsel never saw, is incredibly significant.^[3] Some interviews last up to forty (40) minutes. Dec. 6; Videotaped Interviews of Boys A and D, Girls B and F; Transcripts of Videotapes. The grand jury version, however, shows only a small snippet of each of these entire interviews. Id; Grand Jury Presentation Video. These inculpatory snippets, however, lose all of their inculpatory value once the full tapes are viewed, for it becomes clear how and why the accusations in the snippets were obtained.

For example, the transcript of Boy A’s interview is over forty-five (45) pages long, yet the edited tape covers roughly two (2) pages. Dec. 6. The edited snippets omit images such as Boy A’s inability to stay still and answer any questions by the interviewer and the fact that his parents had to come in and try to calm him down. They also omit images of Boy A being completely preoccupied with toys and reward snacks. Other children were likewise distracted and needed to be refocused, often by their parents. Dec. 7.

Crucially, all the edited snippets omit repeated statements of outright denial of abuse committed by appellee and statements indicative of suggestive interrogation techniques, Dec. 7-11, and n. 13, as noted in the following excerpts from the unedited tapes:

BOY A:

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

A:  He didn't do nothing.                

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

A:  He didn't now.

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

A:  No.

Transcript of Interview, Boy A, 10.17.84, pg. 14.

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

A:  I don't know.

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

A:  Yup.

Id. at 21.

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

A:  No.

Q:  He just went and did what?

A:  Nothing.

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

A:  No.

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

A:  What?

Q:  Did he give you a box of donuts?

A:  No.

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

A:  He gave us a birthday.

Id. at 28-29.

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

MOM:  We can't remember everything.

DAD:  Remember?

A:  No.

DAD:  Now, did Bernie touch you?

A:  No.

Id. at 32

DAD:  Is Bernie bad?

A:  No.

Id. at 34.

GIRL B:

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

A:  No.

            . . .

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

A:  I didn't.

Q:  You don't remember that game?

A:  We didn't do it.

Q:  You didn't?

A:  No.

Transcript of Interview, Girl B, 10.6.84, pg. 7-8.

GIRL F:

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

A:        At home I did.

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

A:        I did it.

Q:        Huh?

A:        I did.

Q:        You seen him?  Yeah.

A:        We put our legs like that.

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

A:        Tookoo.

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

A:        Uh, yeah.

Q:        Yeah?

A:        No.

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

A:        No.

Q:        – in your pants?

A:        No.

Transcript of Interview, Girl F, 11.3.84, pg 9-10.

BOY D:

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

A: No.

Transcript of Interview, Boy D, 10.19.84, pg. 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.

Id. at 25-26

Q: No, you can’t bring it home ‘cause I got other children I got to talk to and they want to see him too. When Bernie touched Boy D [sic], 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?

A: Nothing.

Id. at 32-33.

Q: Boy C? Can you remember something that happened in the woods that you didn’t like?

A: No.

Id. at 34.        

They also contained statements which accused other people of either committing or witnessing these alleged acts–evidence which counsel could have used to investigate and impugn the veracity of the allegations. Dec. 11.

Boy D:

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

A:  Boy C.

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

A:  Mary.

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

Transcript of Interview, Boy D, 10.19.84, pg. 6.

Girl B:

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

A:  Um-hum.

Q:  Yes?

A:  Just two people. 

Q:  Two people?

A:  Two teachers.

Q:  Two teachers?  Can you remember their names?

A:  Um, no.  One was named Bernie. 

Q:  One was named Bernie

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

M:  Was it Stephanie or Eileen?

A:  Stephanie.

Transcript of Interview, Girl B, 10.6.84, pg. 16-17.

Boy C:

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

A.        (Nodding)

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

A:        My dupy.

Q:        Who touched your dupy?

A:        [Boy D]

Q:        [Boy D] touched your dupy?

A:        Yes.

Q:        Is [Boy D] a friend of yours?

A:        No (shaking head)

Transcript of Interview, Boy C, pg. 6-7; MNT App. 695-96.

Q:        []Can you show me where a person touched [boy D] when he was in the shed?

A:        (Inaudible)

Q.        On the dupy?

A:        (Nodding)     

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

A:        (Indicates)

Q:        Right there on the dupy, right?

A:        (Nodding)

Q:        Who was the person that touched [you]?

A:        Jared

Transcript, Boy C, at 17-18; MNT App. 706-07.

Lastly, the unedited videos contain examples of the improper interview techniques discussed in detail by Dr. Maggie Bruck, the defendant’s new trial motion expert. These improper techniques formed the basis for the argument, raised in the motion for new trial, that the interviews of the children were improperly suggestive. Dec. 12. Judge Fecteau found Dr. Bruck to be a recognized authority in the field of suggestibility, memory, and child interviews and that her testimony credibly supported the findings of facts upon which he relied in making his ruling. Dec. 35-38.

Based in part, it seems, on his own common sense and his experience as a trial judge, and in part on his determination of Dr. Bruck’s credibility, Judge Fecteau adopted the following findings, now widely recognized by researchers in connection with interviewing child witnesses, some of which were evident in the unedited videotapes. Dec. 36.

There are proper and improper methods for interviewing very young children. Improper methods will elicit inaccurate and false reports while proper methods should not. 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, authorities believed silence and denial were not indicators that nothing happened; rather, they believed they were products of fear and embarrassment. Dec. 36-37. Put another way, if a child admitted abuse and accused the suspect, the child was telling the truth. If, on the other hand, the child denied abuse by the suspect, he was lying. An innocent suspect obviously has little chance of avoiding indictment in such a scenario.

Among techniques considered proper in interviewing a child are as follows: An interviewer should try to get a child to say in his own words what happened; an interviewer must be neutral; an interviewer should not guide a child down a certain path or towards a specific conclusion; if a child says something, the interviewer should test it to verify why it was said and if it makes sense. Dec. 37

Improper techniques can lead to unreliable statements. These techniques are numerous, and were used in Mr. Baran’s case. It is improper, for example, to use leading questions and not allow a child to say what occurred in his own words. Repeated interviews are also discouraged because a child is led to believe that the answers s/he has already given are incorrect; eventually s/he assents to the interviewer’s version of events. Atmospherics set a negative tone; this includes telling the child that he or she must have been “scared,” that the suspect is a “bad boy,” and that things are “not their fault.” Selective reinforcement also taints the interviews, such as telling a child he is “good” only after the child reveals something but castigating him by, for example, calling him “rude” when he says nothing. Dec. 37.

In addition to improper techniques, other factors can lead to false accusations. It is problematic to have parents present. For one, multiple interviewers can gang up on the child. Additionally, children want to please their parents. If they make a false accusation, it is not necessarily that they are lying but, rather, that they are being compliant. Dec. 37.

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. Dec. 37-38.

More problematic is that children, especially 3-4 year olds, cannot understand the concept of symbolism. They cannot understand that the dolls are supposed to represent themselves or even someone else. They simply lack the cognitive ability to make that connection. Dec. 38.

In appellee’s case, anatomically correct dolls were used in the interviews of each child who testified at his trial. Elizabeth Keegan, the only victim-witness advocate employed at the time of appellee’s case, testified that they no longer use anatomically correct dolls because “times have changed.” Dec. 37-38 and n. 36. Along the same lines, some of the children who testified against appellee were also exposed to the “puppet show,” which was another way in which dolls were used to suggest events.

As the Commonwealth itself points out in its brief, one of the children, Girl F, was initially unable to describe any abuse. “Only after being given an anatomically correct doll did Girl F describe how the Defendant assaulted her.” See Brief for the Commonwealth, pg. 28, citing Tr. 6-87.

Whether or not trial counsel was at fault for failing to obtain copies of the unedited videotape, it is clear he did not hire or consult with an expert on child psychology, memory, learning, nor any other specialty, to assist him. He also did not retain the services of any investigator. When asked about the need for an expert, trial counsel told the defendant not to worry about it. Judge Fecteau found that the defendant and his mother testified credibly about these events. Dec. 33.

Mr. Baran was arrested on October 6, 1984, motions were heard on January 18, 1985, and his trial began on January 21, 1985–a mere 105 days later; trial commenced only 73 days after defense counsel entered an appearance. Dec. 12. On November 28, 1984, the Commonwealth filed a seven page certificate of discovery which also listed 38 prospective witnesses. Trial counsel filed no discovery motions and only a motion for a bill of particulars, a motion to sever, and a motion to dismiss, all just a few days before the commencement of trial. Dec. 13. Also, on January 18, 1985, the court conducted a competency hearing for the children without the defendant being present. Dec. 13.

Judge Fecteau made several other findings as to trial counsel’s deficient performance before and during trial. For example, putting aside whether trial counsel even had access to the unedited tapes, it is likely that he never viewed any tapes, edited or otherwise, until the first night of trial. Dec. 32. Indeed, the central issue, and the only realistic defense, was the credibility of the six complainants, all of whom were just three to five years old at the time of trial. Dec. 27. No other defense was offered. Yet, trial counsel did nothing to support this theory. No preparations or effort was made to explain to the jury the dangers of multiple interviews, preconceived agenda, or leading questions; nor was there any effort by counsel to uncover and/or demonstrate the inconsistencies between the children’s multiple statements. Dec. 27. As noted, he did not consult with an expert nor did he even view tapes of the children’s interviews in preparing for trial.

Trial counsel also failed to reasonably investigate or seek through discovery many relevant documents. These findings also formed the basis for the Motion Judge’s decision. 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.” Dec. 51; See MNT App. 454. As to what Chino did, the girl said “this and this” putting her hand on her genitals and her finger in her mouth. She stated that Chino’s pants were off. Ibid. Though this report was provided to trial counsel, he never followed up on it either through investigation or in cross-examination.

Had he followed up, he would likely have discovered what motion counsel obtained: 1) A type-written letter to Sergeant Pacitti of the West Springfield Police Department by Pittsfield Police Detective McGuire in which he acknowledges that on the same day Girl E accused Mr. Baran of abuse, she also accused Chino, her mother’s boyfriend, of the same abuse, MNT App. 409; 2) A DSS report submitted by Detective McGuire in which Girl E’s allegation against Chino predates the allegation of appellee by three months, Supp MNT, Exhibit 1; Dec. 52-53.

Additionally, motion counsel was able to obtain a DSS report regarding Boy A in which he also accused someone other than Appellee of prior abuse. See MNT App. 138-154. The report was made to DSS on January 18, 1985, a few days before appellee’s trial began. The report was eventually submitted to the district attorney but was never given to trial or appellate counsel.

After almost two weeks of trial, Appellee was found guilty of all counts which went to the jury.^[4]

Judge Fecteau made many more factual findings which will be discussed, as they become relevant, in the argument section.

SUMMARY OF THE ARGUMENT

With the discovery of the unedited videotapes of the child interviews, almost twenty years later, it is clear that Bernard Baran’s trial was unfair. Judge Fecteau declined to decide whether trial counsel’s failure to use the videotapes was due to his own incompetence or because the District Attorney withheld them. It was, of course, unnecessary to decide which of these two fatal defects infected Baran’s trial, since either one–ineffective assistance or failure to turn over exculpatory evidence–would entitle him to anew trial.

It is crucial to understand that the Commonwealth is caught between the proverbial rock and a hard place in this appeal. There can be no doubt that the unedited videotapes of the suggestive interviews would have allowed the trial jury to arrive at a very different conclusion than the jury apparently did, as to the innocence-or-guilt-determinative question of whether the tales of abuse originated with the children or with their interrogators. If in fact trial counsel were given the unedited tapes in discovery by the DA, and if he did not use them, then he was, as Judge Feateau found, ineffective within the constitutional definition of that term. If, on the other hand, the Commonwealth failed–either intentionally or otherwise–to turn over the tapes, then appellee has proven the most serious kind of Brady (and its progeny) violation.

Judge Fecteau’s detailed findings do make abundantly clear that trial counsel never used, let alone viewed, the unedited tapes–and likely never viewed the edited tapes until trial had already begun. This finding is extremely important because the information on those tapes was invaluable.

It would have provided competent counsel with the information he needed to effectively cross examine the Commonwealth’s witnesses, including the experts, families, and the children themselves. The videotapes would have logically explained to the jury why these children could have fabricated the allegations and why they were not credible–the only real theory advanced by counsel. And the tapes would have provided competent counsel with the information needed to consult with an expert and use science to explain the unexplainable: how it is children can be manipulated into making false allegations. (27-43)

Beyond that, Judge Fecteau found that trial counsel was deficient in several other ways which only exacerbated the fact that he never had the unedited videotapes. (43-51). In short, Judge Fecteau issued a thoughtful and detailed opinion in which he made findings of facts and determinations of credibility, to which this court must defer, that use of these videotapes, along with some preparation and investigation, would have been a real factor in the jury’s deliberation.

ARGUMENT

I.          Standard of Review

In his new trial motion, appellee made several claims. He claimed the DA withheld exculpatory evidence, he claimed his attorney was ineffective, and he argued several issues which trial and/or appellate counsel had failed to raise and others which they had. Theoretically, multiple standards of review could apply to each type of claim. With respect to the issue concerning the videotapes, Judge Fecteau chose to view it as a claim for ineffective assistance of counsel.

That is, either the DA failed to turn over the videotapes or trial counsel failed to use them. Generally, failure to turn over exculpatory evidence merits a new trial if, after looking at the entire record, it is apparent that the withheld evidence would have influenced the jury. Commonwealth v. Daye, 411 Mass. 719, 729 (1992). Withholding exculpatory evidence directly violates the due process clause of the United States Constitution, 14^th amendment. On the other hand, if trial counsel had the tapes but was ineffective in using them, his actions are subject to a more searching standard under Article XII of the Massachusetts Declaration of Rights and the 6^th Amendment of the U.S. Constitution, which guarantee the effective assistance of counsel. Without waiving the claim that the videotapes were actually withheld by the District Attorney, Judge Fecteau’s reasoning still holds up when viewed as a claim of ineffectiveness.

Given that this was the defendant’s first motion for new trial, and given that the evidence relied on by Judge Fecteau was not in the trial record, the standard of review is controlled by Commonwealth v. Zinser, 446 Mass. 807 (2006). A “claim of ineffective assistance may be resolved on direct appeal of the defendant’s conviction when the factual basis of the claim appears indisputably on the trial record.” Id. at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Otherwise, the “preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Id. at 810, citing Commonwealth v. Saferian, 366 Mass. 89, 90 n.1 (1974). This procedure is necessary, especially when the claims require “consideration of new facts [such as] . . . assertions made in [an] affidavit submitted by a forensic psychologist.” Id. at 812. In these cases, the defendant does not waive his right to appeal; instead, the court determines whether counsel’s performance falls below the Sefarian standards: was there “serious incompetency, inefficiency, or inattention of counsel–behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer–and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

This was appellee’s first motion for new trial. Almost all claims relied on by Judge Fecteau in ordering the new trial were based on evidence not in the trial record. Rather, Judge Fecteau heard substantial testimony by appellee, his family, and an expert. He also relied on videotapes never before seen or introduced at trial, along with several police and DSS reports which trial counsel never possessed. Therefore, most all of the issues decided by Judge Fecteau were never waived by appellee.^[5]

II.         Judge Fecteau Properly Found that Trial Counsel was Severely Ineffective in Failing to 1) Use the Unedited Videotapes, 2) Consult with an Expert and 3) Prepare For Trial in any Meaningful Manner.

The United States and Massachusetts Constitutions guarantee a criminal defendant’s right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 688 (1984); Saferian, supra; U.S. Const. Amds. VI and XIV; Article XII of the Massachusetts Declaration of Rights. “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). “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). Counsel must “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). “Failure to investigate the only defense a defendant has, if facts known to or with minimal diligence accessible to counsel support that defense, falls beneath the level of competency expected.” Commonwealth v. Haggerty, 400, Mass. 437, 442 (1987). 

For example, counsel was ineffective in failing to conduct a pretrial investigation, interview prospective witnesses, and consider police and DSS reports provided to him in discovery. See Commonwealth v. Garcia, 66 Mass. App. Ct. 167 (2006). Counsel also inexplicably failed to use exculpatory evidence he did possess. Id. at 171. Moreover, failure to call a witness, even if that witness may have implicated the defendant, was not a tactical decision:

[C]ounsel not only never spoke with [the witness], but failed to review her statements that had been provided to him in pretrial discovery. As a result, he was never in a decision-making position with regard to her testimony, and he could not weigh the benefits of her trial testimony against the harm it could potentially cause the defendant.

Id. at 172.

Although the defendant in Garcia was charged with three counts of indecent assault and battery on three different children, the “bulk” of counsel’s ineffectiveness related to only one child. Id. at 173. However, the defendant was entitled to a new trial on all counts because “[i]f a reasonable doubt had been successfully raised regarding one of the children, this could have affected the jury’s perspective on the testimony of the two other child witnesses.” Ibid.

In a different case, this court upheld an order for new trial when defense counsel failed to view an entire surveillance tape. See Commonwealth v. Buck, 64 Mass. App. Ct. 760 (2005). Had he done so, he would have discovered that it supported his client’s alibi. This evidence would have “probably been a real factor in the jury’s deliberation.” Id. at 764-65.^[6]

Here, Judge Fecteau’s findings, after assessing the credibility of several witnesses, confirms that trial counsel simply did not prepare for this case. He failed to view or even seek the unedited videotapes which contained exculpatory evidence and statements that would have supported his only theory of the case. At best, failure to do this was a result of withheld evidence; at worst, trial counsel did not pursue what any competent counsel should have sought.

Having seen the unedited tapes, Judge Fecteau found that, standing alone, they were powerful:

[They] would likely have had impact on the jury’s        consideration of the credibility of the children, and, perhaps more significantly on the credibility of the interviewers as well, especially considering their arguably overly-simplistic characterization of their interviews of the children. When seen in conjunction with the leading nature of the direct examination of the children during trial, it might well have supported the defense claim of suggestiveness by the repetitive manner of the questioning of the children.

Dec. 32. Of course, “[t]he full range of interviewing techniques would likely not have been known to counsel since evidence of their existence was only found on the unedited videotapes, which he likely did not see.” Dec. 34. Therefore, it was vital that counsel have sought and viewed the unedited tapes.

Armed with the unedited videotapes, had trial counsel then consulted with an expert, who should have been readily available,^[7] he would have been able to support his argument of suggestiveness with hard science. It is ineffective for trial counsel to fail to consult with an expert when there is any possibility that an alternative, scientific explanation exists for the alleged criminal conduct. Haggerty, 400 Mass. At 441-43. Counsel cannot rely on mere cross-examination of the Commonwealth’s experts–nor, indeed, on mere cross-examination of the children themselves–in hope of getting them to concede some doubt. Id. at 442. “‘Disbelief of testimony is not the equivalent of proof of facts contrary to that testimony.’” Id. at 442, quoting Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330 (1923). “Disbelief of testimony ‘would not furnish the basis for a finding the other way.’” Ibid, quoting Stuart v. D.N. Kelley & Son, 331 Mass. 76, 78 (1954).

Judge Fecteau made detailed findings, after assessing Dr. Bruck’s credibility, that an expert’s testimony and assistance to counsel would have made a difference at trial. He found that the techniques used to question the children in this case, as apparent from the unedited tapes, have all been largely discredited by science. It should be added, these techniques could have been largely discredited by common sense, but the jurors were unable to exercise even their common sense, unaided by experts, since they were never shown how the children were interviewed.

Without an expert, trial counsel had no vehicle for “explaining to the jury the reasons why children should not be interviewed in the manner they were[.]” Dec. 39. Without an expert, there was “no link to vitally important sources of information that was available on these critical subjects which could have been utilized to challenge the opinions of the Commonwealth’s experts and [counsel] was thus unable to counterbalance the critically important and powerful opinions given by the Commonwealth’s experts on the truthtelling of child sexual abuse victims.” Ibid. Therefore, failure to use the unedited tapes was exacerbated by trial counsel’s equally ineffective conduct in not consulting with an expert.

Indeed, the Commonwealth put on several of its own “expert” witnesses who discussed in detail the children’s credibility. See generally Dec. 39-45. For example, Jane Satullo, who had “fairly limited qualifications,” Dec. 41, testified about how children are no more susceptible to suggestion than adults. Dec. 41-44. Dr. Suzanne King did the same. See e.g. Tr. 6/115. Judge Fecteau found that trial counsel was especially unprepared to cross examine these witness about their statements. His cross of Ms. Satullo totaled 8 pages of transcript. Dec. 43; Tr. 6/3 to 6/7, 6/10 to 6/12.

In this vein, Judge Fecteau highlighted particularly troubling aspects of trial counsel’s performance:

[He] made no attempt or effort to demonstrate to the jury, through questions to [Ms. Satullo], that the situation she described in her opinions was not descriptive of this case, i.e., the difference between the likely truthfulness of a child who spontaneously narrates and accurately repeats a story with details over time and the problems that must exist in the situation where details must be coaxed from a child, such as occurred here when some of the children responded with silence and/or denials followed by leading questions.

Dec. 44. “While it is not clear what version of the videotape [trial counsel] saw–short edited, edited, or unedited–he failed to utilize the contents of any of the children’s testimony or the videotapes to any advantage for the defendant.” Dec. 45.

Having viewed the unedited tapes, Judge Fecteau confirmed that they provided important evidence that the children’s testimony was not spontaneous, but rather the product of repeated coercion. Trial counsel failed to effectively cross-examine Ms. Satullo by “illustrating [suggestive] techniques used by her on the tapes, i.e. the coaxing and cajoling nature of her questioning[.]” Ibid. He never “explore[d] inconsistencies in the statements of the children, never asked whether the children had denied sexual contact, never sought to impeach Ms. Satullo’s opinions by comparison with the apparent difficulty some of the child witnesses had in testifying nor did he challenge her simplified account of the interviews.” Ibid.

Counsel’s failing in not using the unedited videotapes and not seeking help from an expert is all the worse in light of the information he failed to discover.      Motion counsel was able to find evidence that at least two children had made prior allegations of abuse. See MNT. App. 138-154, 454-455; Supp MNT Exhibit 1. Judge Fecteau held that diligent work by trial counsel would have likely turned up at least one of these allegations made by Girl E. See Dec. 52. At a minimum, apart from helping counsel prepare to cross examine the Commonwealth’s witnesses and testifying at trial, an expert could have helped counsel make sense of the discovery he did receive about Girl E and highlight that such an admission was highly relevant in these cases.

Failure to investigate allegations of prior abuse, and seek voir dire on these matters, is clearly ineffective assistance of counsel. “If 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). “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.

The constitutional theory upon which Ruffen was based “was not sufficiently developed at the time of trial or direct appeal to afford [appellee] a genuine opportunity to raise his claim at those junctures of the case.” Commonwealth v. Randolph, 438 Mass. 290, 295 (2002). In this situation, the “clairvoyance” exception applies and treats the issue as if it had been properly preserved. Id. However, even if Ruffen is not applied retroactively, then trial counsel was wholly ineffective for failing to explore this evidence, as Judge Fecteau found. Dec. 53-54.

In a similar case, the defendant was accused of having abused his daughter when she was between five and nine years old. Comonwealth v. Owen, 57 Mass.App.Ct. 538, 539 (2003). The victim testified that the defendant committed multiple 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. Throughout trial and in closing, 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.

Counsel in that case also 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. He was in possession of other DSS reports documenting prior abuse which he never brought to the court’s attention. Id. at 542. Trial counsel did bring a motion in limine, but the judge deferred ruling on it and counsel never renewed his request.

Failure to renew this request undeniably prejudiced the defendant and constituted “incompetency and inattention well within the comprehension of Saferian.” Id. at 546. Moreover, 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; see Commonwealth v. Scheffer, 43 Mass.App.Ct 398 (1997) (finding that counsel should have brought a motion pursuant to Ruffen and that the error was significant enough to warrant a new trial).

In Appellee’s case, there was an overarching theme advanced by the prosecution that these children could not have possibly lied because they had no other source of information. Ms. Satullo testified that children only report abuse, and then repeat it, if it is true. Tr. 5/148. Dr. King similarly testified, and in his closing, ADA Ford picked up on this theme:

[Y]ou 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.

Tr. 8/48-49; see Tr. 8/64. Moreover, the type of abused claimed at trial by Girl E, by her own statement, was identical to the prior abuse she claimed Chino committed. See  Dec. 51; See MNT App. 454 (“Chino did the same thing”). This line of argument was compelling and likely weighed heavily with the jury without some contrary explanation that would was readily available to trial counsel.

Any explanation would have certainly had an impact since, other than the children’s testimony, there was no reliable physical evidence and no witnesses to the alleged acts. See Owen, at 401 (“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”). The only potential “physical” evidence of abuse was presented by Dr. Sheeley, who testified that Girl B’s vaginal injuries were consistent with full penetration. The Commonwealth claims for the first time on appeal that this evidence showed there was more than just the children’s allegations to support their case. See Brief for the Commonwealth, pg. 35. Yet Appellee submitted a detailed affidavit by Dr. James Crawford, a trained forensic examiner in the field of child sexual abuse, concerning these findings which was uncontested at any stage and in any pleading by the Commonwealth. See Affidavit of Dr. James Crawford, MNT App. 305.

Newly discovered scientific evidence shows that Girl B’s supposedly “ruptured” hymen was actually normal and referred to as a “hymenal mound” or “superficial notches.” Ibid. According to Dr. Crawford, today’s literature is clear that very few “non-acute” hymenal findings would allow an examiner to testify with certainty that a child’s exam showed “clear evidence of prior penetration.” None of the findings that would allow an examiner to testify today with certainty that a child's exam showed “clear evidence of prior penetration” is described in Girl B’s genital exam. The description of Girl B’s genital exam appears to objectively describe physical findings that, if interpreted with the information available in 2004, would be characterized as normal. Ibid.

Given the complete lack of physical evidence, the Commonwealth’s entire case rested on the children’s credibility. Whether they could possibly have fabricated these allegations was therefore a crucial part of the Commonwealth’s case. Trial counsel’s failure to investigate and discover that Girl E had made prior allegations of abuse was inexcusable.^[8] Yet even if that information was somehow not discoverable, the unedited videotapes themselves contain several allegations by the children that someone other than Appellee had abused them. Transcripts of Boy D, at 6; Transcript of Boy C, Pg. 17; MNT App. 706.

These statements alone should have formed the basis for trial counsel to investigate prior abuse, seek voir dire, properly cross examine witnesses about the actual techniques they used in these interviews, and consult with an expert.

The Commonwealth argues that the unedited videotapes were not very significant. It argues that the tapes were recorded after the children made their first disclosure, which is generally the most reliable testimony a child can give. See Brief for the Commonwealth, pg 26. This argument is disingenuous for several reasons. First, a child’s initial disclosure is only reliable if it is spontaneous. Dr. Bruck testified that, in her expert opinion, the first disclosures in this case were not spontaneous and therefore not trustworthy. MNT Tr. 4/51-52. Second, it is clear that at least two of the children made similar allegations against persons other than appellee, including Boy A who made the first disclosure. Given that these children could have been conflating prior abuse with suggestive questioning, their initial disclosure may have already been tainted. Lastly, the disclosures ostensibly predating the interviews were reported by generally interested parties, namely the children’s parents. Given the hysteria that quickly grabbed hold of this episode, there is good reason to believe these reports were biased.

The videotapes stand in stark contrast to these other disclosures because they provide a tangible, unbiased look at how the children talked about these alleged acts. It is more remarkable that these interviews took place after the children had already been asked several times about “Bernie.” Even days later, and after suggestive questioning, the children were still denying that appellee had done anything, still accusing others, and still in need of prizes for answers. The videos were important evidence because they demonstrated that the children had to be pushed and coerced into accusing appellee.

Even at trial, many of the children reacted the same way. The Commonwealth notes that because their conduct at trial was so similar to their actions on video, failure to use the tapes was harmless. Quite the contrary. The tapes would have shown a jury that the reason the children were reluctant or uncooperative was not, for example, that they were scared or uncomfortable in a trial setting. Rather, they had been manipulated to believe that they were abused and/or only pointed the finger at appellee because they knew the questions would not stop until they did. The unedited videotapes would have shown the jury the great lengths the Commonwealth had to go to even get the children to make a reluctant accusation.

The unedited videotapes would have helped competent counsel tie up all these loose ends. It would have given him something to show the jury. And it would have given an expert excellent evidence to testify that these children had been coerced into making allegations. His argument to the jury that the children were coached was useless without having shown the jury the actual evidence of coercion. The children were prepared to testify at trial because their testimony had been so well rehearsed many times before. The videotapes captured an important, yet rare, early “dress rehearsal” which the jury should have been shown.

III.        Judge Fecteau properly held that various errors, either by themselves or collectively, and in conjunction with trial counsel’s ineffectiveness, created a substantial miscarriage of justice.

Judge Fecteau held that certain omissions or failures by trial counsel which either could have been, or were presented on appeal, nevertheless resulted in a substantial miscarriage of justice. This was especially true given the new evidence presented at the new trial stage. Errors create a substantial risk of a miscarriage of justice when “they raise serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999); Randolph, supra, 438 Mass. at 297. The court must ask:

(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? [and] (4) May [the court] infer from the record that counsel’s failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?

Randolph, 438 Mass. at 298 (citations omitted).

The Commonwealth dedicated a large part of its brief to addressing some of these errors. To be sure, in isolation, these errors may not have resulted in a miscarriage of justice. In conjunction with trial counsel’s ineffectiveness, they created a manifestly unfair trial.

Judge Fecteau properly ruled that evidence that Boy A had contracted gonorrhea should have been excluded from trial. Evidence is relevant only if it has a “rational tendency to prove an issue in the case.” Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). In the absence of evidence that appellee also had gonorrhea, the diagnosis of gonorrhea was not a link in a chain of evidence that pointed to him. See Commonwealth v. Burke, 339 Mass. 521, 533-534 (1959). Defense counsel should have objected and the judge should have excluded the gonorrhea evidence.

Furthermore, trial counsel was also ineffective for failing to keep the Commonwealth from presenting appellee’s homosexuality as evidence he was more likely to have committed these crimes. Generally, evidence of homosexuality is extremely prejudicial. See United States v. Gillespie, 852 F.2d 475, 479 (9th Cir. 1988); State v. Woodard, 146 N.H. 221, 225 (2001). “Because of its prejudicial character, evidence of homosexuality may be properly introduced only if it is relevant to the charged crime.” State v. Bates, 507 N.W.2d 847, 852 (Minn. App. 1993).

“[H]omosexuality is not relevant to [any] crime charged. The belief that homosexuals are attracted to prepubescent children is a baseless stereotype.” Id. at 852. “Evidence implicating [a defendant’s] sexual orientation [is] particularly prejudicial [if he was] being tried on numerous sex offense charges: the jury’s inference that [he] was gay could in all likelihood have caused it also to infer that he deviated from traditional sexual norms in other ways, specifically that he engaged in illegal sexual conduct with minors.” Guam v. Shymanovitz, 157 F.3d 1154, 1160 (9th Cir. 1998). “Because in our society homosexuality–and indeed any other sort of deviation from the norm of heterosexual procreative sex–is often equated with indecency, perversion, and immorality, and gay persons are often greeted with distrust and suspicion, particularly in their interactions with children, we cannot assume that the jury’s decision was not affected by biases and prejudices.” Id. at 1161.

Here, trial counsel allowed the Commonwealth to introduce evidence of appellee’s homosexuality for no relevant reason. The prejudice was compounded when the Commonwealth elicited testimony that homosexuals are more likely to have gonorrhea. Tr. 5/110-11. The prejudicial effect of this evidence far outweighed any probative value it may have offered. The only probative value that appellee’s homosexuality may have had was in confirming that the allegations were a product of homophobia. However, trial counsel failed to present this defense in a meaningful manner. Had counsel succeeded in adducing evidence that someone close to Boy A had gonorrhea and could have infected him–and then had a motive to set up appellee– not seeking to preclude this evidence would have been reasonable. Instead, trial counsel framed the issue such that the only possible source of Boy A’s gonorrhea was appellee. 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).

Judge Fecteau also properly ruled that closing the courtroom when the children testified violated appellee’s right to a public trial. “[The Sixth Amendment guarantee of a public trial], the importance of which cannot be overstated, exists primarily to prevent the courts from becoming instruments of persecution. Under the public gaze, witnesses, counsel, and the judge are more strongly moved to a strict consciousness of their duty, thus improving the quality and fairness of our judicial system.” Commonwealth v. Stetson, 384 Mass. 545, 549-550 (1981)(citations omitted). Before closing a courtroom, a judge must make the appropriate findings:

[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.

Commonwealth v. Martin, 417 Mass. 187, 194 (1994), citing Waller v. Georgia, 467 U.S. 39, 48 (1984). Here, when the children testified, the judge sua sponte closed the courtroom to everyone except for the children’s parents and appellee’s family. The judge did not make the findings required before closing a courtroom. Trial counsel essentially acquiesced and failed to object to closing the courtroom.

The right to a public trial can be waived only if that waiver is knowing, intelligent, and voluntary. Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 340 n.1 (1994). A defendant’s right to a public trial may be waived as a trial tactic by competent counsel. See Commonwealth v. Williams, 379 Mass. 874, 876 (1980). Here, there is no evidence that appellee knew he had a right to a public trial, much less that he waived it. He was not even present when closure of the courtroom was discussed at the conclusion of the Competency Hearing on Friday, January 18, 1985. The judge never conducted a colloquy with appellee on his right to a public trial. Additionally, there is no evidence that trial counsel’s acquiescence in the exclusion of the public from the competency hearing–or appellee’s exclusion for that matter–and from the courtroom during the children’s testimony was a trial tactic.

A showing of prejudice is not necessary for reversal of a conviction which is not the result of public proceedings. Commonwealth v. Marshall, 356 Mass. 432, 435 (1969). “Generally, the appropriate relief for violations of the constitutional right to a public trial is a new trial.”  Martin, supra at 196, citing Waller v. Georgia, supra at 49.

Judge Fecteau also properly ruled that trial counsel’s decision to waive appellee’s right to proceed by way of indictment as to Boy C was a manifestly unreasonable decision. A defendant in Superior Court has a right to be proceeded against by indictment.  Mass.R.Crim.P. 3; G.L. ch. 263, § 4. This right may, however, be waived. A defendant who waives the right to indictment is entitled to proceed with a probable cause hearing. Mass.R.Crim.P. 3; M.G.L. ch. 263, § 4A. The primary function of a such a hearing is to screen out those cases that should not go to trial, sparing individuals from being unjustifiably prosecuted. Commonwealth v. Myers, 363 Mass. 843, 847 (1973). A defendant’s election to waive indictment and proceed by a probable cause hearing has certain collateral benefits. The hearing presents the defendant with an opportunity for discovery and thereby prepare a proper defense; moreover, the opportunity to cross-examine sworn witnesses yields an important tool for impeachment. Commonwealth v. Lataille, 366 Mass. 525, 529-530 (1974); Myers, 363 Mass at 847-848.

At the time the indictment was waived, the Commonwealth had provided just two pages of discovery on the Boy C charges. After telling the court that waiving indictment was “the practical thing to do,” trial counsel added: “The only thing I would request of the District Attorney – I had very little information on Boy C. I don’t know if there’s more information available. Those two brief things[.]” Tr. 1/18. 

Trial counsel’s failure to assert appellee’s right to a probable cause hearing deprived him of a crucial opportunity to discover the Commonwealth’s case.  Because the rules of evidence at a probable cause hearing are the same rules applicable at a criminal trial, Myers, 363 Mass. at 849, n. 6, a preliminary hearing would have yielded, at a minimum, an opportunity to cross-examine the child. Id. at 855-856.  Crucial discovery could have been obtained and the groundwork for impeachment could have been laid. 

This blunder could have been mitigated by a formal request for discovery pursuant to Mass.R.Crim.P. 14, but there is no record of any such request having been  made, nor is there any indication that trial counsel was provided with any additional discovery. An ordinary fallible lawyer would have actively sought the Child Abuse and Neglect Report (51A/B) prepared on behalf of Boy C as well as the unedited videotape of his interview.

All in all, trial counsel continually made unreasonable decisions with no real tactical basis. His errors were compounded upon each other. Each failure to protect appellee’s rights sunk trial counsel deeper into a hole of ineffectiveness from which he could not escape.

IV.       If this court finds Judge Fecteau ruled in error, it must remand the matter so Judge Fecteau can rule on the many claims raised by Appellee which he found unnecessary to decide.

There are many additional claims which Judge Fecteau did not decide, ostensibly because they were unnecessary. Should this court find that his order was in error, it must remand the matter for further findings and hearings to address these remaining issues. Primarily, Judge Fecteau did not resolve whether or not appellate counsel acted under a conflict of interest. He did hear testimony on this matter and several documents were submitted in support.

Judge Fecteau also did not decide whether the District Attorney withheld exculpatory evidence. Appellee made several claims that the DA withheld evidence of DSS reports of prior abuse by persons other than appellee. Appellee argued that the reasons trial counsel did not view the unedited videotapes is because the DA never gave them to him. To the extent this court rules that failure to view the unedited videotapes was not ineffective assistance, Judge Fecteau then needs to decide whether the tapes were newly discovered and whether the DA violated Brady by withholding them. Since the standard for ineffectiveness is more onerous than proving prejudice after finding newly discovered evidence, it is likely that this claim would ultimately provide appellee relief.

CONCLUSION

For the foregoing reasons, Judge Fecteau’s careful, well-documented, and well-reasoned grant of a new trial should be affirmed.

Respectfully submitted,

____________________

JOHN G. SWOMLEY                                               BBO # 551450

SWOMLEY & ASSOCIATES            227 Lewis Wharf                 Boston, MA 02110                (617) 227-9443

______________________

                         ERIC TENNEN                                            BBO # 650542

SWOMLEY & ASSOCIATES            227 Lewis Wharf                 Boston, MA 02110                (617) 227-9443          

_______________________        HARVEY SILVERGLATE

BBO # 462640

Of Counsel, Good & Cormier

83 Atlantic Avenue

Boston, MA 02110

(617)523-5933

CERTIFICATION

I, John Swomley, certify that this brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. 16(a)(6), Mass. R. A. P. 16(e), Mass. R. A. P. 16(f), Mass. R. A. P. 16(h), Mass. R. A. P. 18, and Mass. R. A. P. 20.

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John Swomley