The Bernard Baran Justice Committee

COMMONWEALTH OF MASSACHUSETTS

Berkshire, ss.                        SUPERIOR COURT DEPARTMENT

No. 18042 through 18051,                                           and 18100, 18101  

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COMMONWEALTH OF      :

MASSACHUSETTS              :

v.                                 :

BERNARD BARAN             :

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REDACTED PROPOSED RULINGS OF LAW

I.          Standard of Review

II.        Grounds for New Trial

A.        The Children’s Testimony was Tainted by Suggestive Interview Techniques

B.        Ineffective Assistance of Counsel

1.         Trial Counsel Failed To Investigate or Prepare For Mr. Baran’s Case

2.         Trial Counsel Committed Several Errors at Trial

C.        Prosecutorial Misconduct

1.         The prosecution withheld exculpatory evidence

2.         The Grand Jury Proceedings were Tainted

3.         The Prosecution’s Closing Argument was Improper

D.        Newly Discovered Evidence

1.         Conflict of Interest      

2.         Normal Hymenal Pathology

3.         Recent Recantations

E.         Reevaluation of Previously litigated issues

1.         Suggestiveness

2.         Competency

3.         Fresh Complaint

F.         New Constitutional Law Applicable to Mr. Baran

III.       Conclusion                 

Based on the findings of fact, I make the following rulings of law:

I.          STANDARD OF REVIEW

1)         Because there are multiple issues in this case, there are several standards of review. The issues, basically, can be divided into 3  succinct groups: 1) those which trial and/or appellate counsel did raise; 2) those which trial and/or appellate counsel did not raise, but could have; and 3) those which trial and/or appellate counsel did not and could not have raised, either because the Commonwealth suppressed exculpatory evidence, there exists newly discovered evidence, or because the constitutional theory upon which they rest was insufficiently developed at the time to afford Mr. Baran an opportunity to raise it.

2)         The first group of issues–those which trial and/or appellate counsel raised–are not completely removed from review. Rather, a judge has discretion to rehear these issues in “those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Commonwealth v. Watson, 409 Mass. 110, 112 (1991), quoting Commonwealth v. Harrington, 379 Mass. 446, 449 (1980); Mass.R.Crim.P. 30(c).

3)         The issues which fall under this category include the competency of the children to testify, certain objections to fresh complaint evidence, and the use of leading questions at trial.

4)         The second group of issues–those which trial and/or appellate counsel did not raise, but could have–are evaluated under the same standard to determine whether they are indeed errors and whether such errors create a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-95 (2002); Commonwealth v. LeFave, 430 Mass. 169, 173 (1999).

5)         The types of issues which fall under this category are claims of ineffective assistance of counsel,^[1] certain claims of prosecutorial misconduct (such as the impropriety of the prosecutor’s closing arguments), and failure to protest the closing of the courtroom.

6)         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.” LeFave, supra, 430 Mass. at 174. The court must ask a series of four questions:

(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, supra, 438 Mass. at 298 (citations omitted). A new trial is warranted if the court answers these four questions affirmatively. Id.

7)         The last group of issues–those which were not and could not have been raised earlier–are subjected to a less searching standard.

8)         With respect to Mr. Baran’s claim that the prosecution withheld exculpatory evidence despite a specific request,  “a standard of prejudice more favorable to the defendant is justified.” Commonwealth v. Healy, 438 Mass. 672, 680 (2003), quoting Commonwealth v. Tucceri, 412 Mass. 401, 407 (1992). “In such circumstances, ‘a defendant need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure.’” Id., quoting Tucceri, at 412. A new trial is warranted 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).

9)         The withheld evidence specifically requested in this case consists of the unedited videotapes of the interviews with the children, the police reports authored by Detective McGuire regarding Chino, the 51A/B reports of Girl E and Boy A concerning prior abuse, the 51A/B reports of all the children who were not the subject of criminal complaints, and the police report which stated Boy A’s Family had complained about Mr. Baran’s homosexuality to ECDC

10)       A motion for new trial based on newly discovered evidence will be granted if it casts a real doubt on the justice of the conviction. LeFave, supra, 430 Mass. at 176; Commonwealth v. Grace, 397 Mass. 303, 305 (1986). “Newly discovered evidence is evidence that was unavailable at the time of trial and could not have been discovered with reasonable diligence.” LeFave, at 176.

11)       The newly discovered evidence in this case is evidence of appellate counsel’s conflict of interest, new scientific research on the normality of Girl B’s hymenal pathology, and evidence of recent recantations.

12)       Apart from newly discovered evidence, there is a less stringent standard of review for any claim that could not have been made at the time of Mr. Baran’s trial because it is based on a constitutional theory which “was not sufficiently developed at the time of trial or direct appeal to afford [Mr. Baran] a genuine opportunity to raise his claim at those junctures of the case.” Randolph, supra, 438 Mass. at 295. In this situation, the “clairvoyance” exception applies and treats the issues as if they had been properly preserved. Id. This standard of review applies to certain arguments dealing with the admission of fresh complaint evidence and failure to conduct voir dire under Commonwealth v. Ruffen, 399 Mass. 811 (1987).^[2]

13)       Overall, if the original trial was infected with prejudicial constitutional error, there is no discretion to deny the motion. Commonwealth v. Lannon, 379 Mass, 786, 788 (1980).

II.        GROUNDS FOR NEW TRIAL

A.        The Children’s Testimony was Tainted by Suggestive Interview Techniques

14)       This issue was never explored by prior counsel.

15)       New counsel raises for the first time that the children who testified against Mr. Baran were subjected to suggestive interview techniques. This argument is reviewed to determine whether if such techniques were used they created a substantial miscarriage of justice.

16)       However, in analyzing this claim, evidence previously withheld from Mr. Baran–unedited tapes of interviews conducted with children–sheds significant light on suggestiveness. This evidence was not available to Mr. Baran until now and casts a real doubt on his conviction.

17)       Based on the findings of fact, taking into account the testimony of Dr. Maggie Bruck^[3], the videotapes, and the trial transcript, there is substantial evidence to suggest the children’s testimony was indeed tainted.

18)       As noted in other cases, the following factors are “more than sufficient” to justify a finding of pretrial taint:

[T]he absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions.

Commonwealth v. Allen, 40 Mass.App.Ct. 458, 462, n.8 (1996), citing State v. Michaels,  642 A.2d 1372 (1994); see Commonwealth v. Callahan, 9 Mass.L.Rep. 228 (1998).^[4] In addition to these factors, the use of anatomically correct dolls added to the suggestive atmosphere of the interviews.

19)       Having found that the children were subjected to suggestive techniques, I further determine that such techniques created a substantial risk of a miscarriage of justice.

20)       “If a child's recollection of events has been molded by an interrogation, that influence undermines the reliability of the child's responses as an accurate recollection of actual events.” Michaels, 642 A.2d at 1377.

21)       “Once this tainting of memory has occurred, the problem is irredeemable. That memory is, from then on, as real to the child as any other.” State v. Wright, 775 P.2d 1224, 1228 (1989).

22)       Because no case in Massachusetts is squarely on point, this court will adopt by analogy the standards involving suggestive pretrial identification procedures. See Callahan, 9 Mass.L.Rep. 228, citing Michaels, 642 A.2d, 1372. A defendant has the burden of showing by a preponderance of the evidence that an identification was “unnecessarily suggestive.” Commonwealth v. Botelho, 369 Mass. 860, 867(1976). Upon such a showing, the Commonwealth is per se excluded from relying on it, id. at 866, unless it proves “by ‘clear and convincing evidence’ that the proffered identification has a source independent of the suggestive confrontation.” Id. at 868.

23)       Mr. Baran has met his burden here and the Commonwealth has proffered no reliable evidence that the identifications had an independent source predating the suggestive techniques.

24)       The Commonwealth has not, therefore, met its burden of demonstrating an independent source for the identification by clear and convincing evidence. The Commonwealth’s assertion that the children’s testimony was not tainted because they had disclosed prior to the suggestive interviews–to the police or to parents–simply falls short. Those interviews are unrecorded and the only evidence of their reliability comes from the hearsay testimony of those persons who interviewed them: parents, police, and social workers. As Dr. Bruck noted, a person’s own memory tends to skew events to fit a preconceived bias. Therefore, in these types of cases, videotapes provide the only true, accurate depiction of the manner in which a child was interviewed and what the child actually discloses. Absent videotapes, mere testimonial accounts of previous interviews is simply not enough to determine whether those interviews were or were not suggestive.

25)       The children’s testimony and accusations were the heart of the Commonwealth’s case against Mr. Baran. Without them, Mr. Baran could not have been indicted or convicted. Therefore, the fact that the accusations were based on suggestive interview techniques creates a substantial risk of a miscarriage of justice. The children’s testimony was quite simply unreliable. The children may very well have come to believe they were being truthful, but believing one is being truthful is not the same as actually being truthful. Mr. Baran was entitled to a trial free from tainted evidence.

B.        Ineffective Assistance of Counsel

26)       A criminal defendant’s right to effective assistance of counsel is guaranteed by the United States and Massachusetts Constitutions. See Strickland v. Washington, 466 U.S. 688 (1984); Commonwealth v. Saferian, 366 Mass. 89 (1974); U.S. Const. Amds. VI and XIV; Article XII of the Massachusetts Declaration of Rights . Article XII affords even greater protection than the Sixth Amendment. Commonwealth v. Hodge, 386 Mass. 165, 169 (1982),.  A defendant has a constitutional right to effective assistance of both trial counsel and appellate counsel. Id. (trial counsel); Commonwealth v. Cardenuto, 406 Mass. 450, 453 (1990) (appellate counsel), citing Douglas v. California, 372 U.S. 353, 355-356 (1963).

27)       “Where a defendant fails to preserve his claim for review we must still grant relief when ‘we are left with uncertainty that the defendant’s guilt has been fairly adjudicated.’” Commonwealth v. Randolph, 438 Mass. at 294-295, citing Commonwealth v. Azar, 435 Mass. 675, 687 (2002).  A substantial risk of a miscarriage of justice exists when there is “a serious doubt whether the result of the trial might have been different had the error not been made.”  Commonwealth v. Randolph, supra at 297.

28)       Based on my findings of fact, I conclude that trial and appellate counsel were ineffective in several respects.

1.         Trial Counsel Failed To Investigate or Prepare For Mr. Baran’s Case

29)       Trial counsel failed to conduct any investigation in this matter. He did not interview any Commonwealth witnesses or explore the possibility of suggestiveness. He did not even speak with one of his own witnesses until about ten minutes before her testimony. Tr.  7/58-67.^[5] “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).

30)       Trial counsel also failed to avail himself of other discovery vehicles. Counsel waived an indictment and probable cause hearing with respect to the charges against Boy C, even though doing so would have allowed him to discover the evidence against Mr. Baran with respect to those charges. Counsel also failed to watch the edited videotapes of the children’s interviews until trial had commenced. While the edited videotapes provided just a small sample of the entire interviews, they were enough to put counsel on notice that he should investigate the possibility of suggestiveness (and seek the full, unedited tapes).

31)       Trial counsel did not consult with experts with respect to the testimony of any of the Commonwealth’s expert witnesses or to assist him in presenting evidence on behalf of Mr. Baran. A defense attorney has a constitutional duty “to conduct an independent investigation of the facts, including an investigation of the forensic, medical, or scientific evidence on which the Commonwealth will rely to prove guilt.” Commonwealth v. Baker, 440 Mass 519, 529 (2003). Dr. Maggie Bruck’s testimony showed that use of an expert like herself would have accomplished something material for the defense.

32)       Even if trial counsel was competent, “[a] defendant's right to counsel is not satisfied by the mere presence of a competent attorney if that attorney is not prepared.” Commonwealth v. Cavanaugh, 371 Mass. 46, 58 (1971). Given the fact that this complex case proceeded to trial in three months, and given the fact that trial counsel did not conduct an investigation, speak with prospective witnesses, or consult with experts, I find as a matter of law that he was not prepared for trial. I further find as a matter of law that this alone resulted in Mr. Baran receiving ineffective assistance of counsel which created a substantial miscarriage of justice.

33)       Furthermore, trial counsel also “abandon[ed] the only defense available to [Mr. Baran] and left [him] without any defense at all.” Commonwealth v. Haggerty, 400, Mass. 437, 442 (1987). To be sure, Mr. Baran had several viable defenses. Trial counsel could have shown that the accusations were a product of hysteria or homophobia. But he did not acquire evidence which would have supported this claim, such as the fact that Boy A’s Family had complained to ECDC about Mr. Baran’s homosexuality before any of the allegations of abuse surfaced. He also failed to bring out this theme in cross-examining any of the Commonwealth witnesses, nor did he adduce evidence to support it. Trial counsel seemed to believe that Boy A’s Father had a reason to set up Mr. Baran since counsel thought Boy A’s Father had at some point contracted gonorrhea. Tr. 4/171-4/172. The judge, however, excluded this evidence because counsel did not have any witnesses to support these claims.  Therefore, besides mentioning the idea of homophobia in his opening, counsel presented no evidence in support.

34)       Additionally, with some due diligence, he could have shown that at least one child, Girl E, had accused someone other than Mr. Baran of abuse and therefore derived her knowledge of abuse from that incident.^[6] Trial counsel could have better investigated Mr. Baran’s alibi defense–that he would eat lunch with a friend during nap time, when he allegedly abused the children. But counsel failed to investigate or present any of these issues.

35)       Finally, trial counsel could have discredited the children’s testimony through the use of an expert to show they had been subjected to suggestive interview techniques. Failure to investigate allegations of prior abuse, and seek voir dire on these matters, has been singled out by courts as 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.; Comonwealth v. Owen, 57 Mass.App.Ct. 538, 544-45 (2003).

36)       Even though Ruffen was decided after Mr. Baran’s case, assuming, arguendo, that the case has no retroactive application, counsel’s conduct in failing to act upon this information itself warrants a new trial. But see infra, Section II.F. (discussing Ruffin’s retroactive application).

37)       In Commonwealth v. Owen, the Appeals Court granted a new trial in a case virtually indistinguishable from Mr. Baran’s. The defendant was accused of having abused his daughter when she was between five and nine years old. Owen, 57 Mass.App.Ct. at 539. The victim testified to the defendant having done numerous acts, such as “putting his penis in [her] vagina . . . stick[ing] his penis in [her] butt . . . and “kiss[ing] her on the cheeks and lips.” Id. at 539-40. At trial, in addition to calling the victim, the Commonwealth called “her sister, mother, and a police detective to testify, as well as a physician who examined her shortly after her disclosure.” Id. at 540.  Lastly, the Commonwealth argued that “the young victim could not have knowledge of the sexual acts about which she testified had she not been abused.” Id. at. 541.

38)       Trial counsel had access to a DSS report which predated the alleged abuse. It indicated that “the then two year old victim ‘was able to verbalize that she had observed her mother and [her live-in-boyfriend] hugging and kissing in bed with no clothes on,’ that she had been in possession of photographs depicting them in the nude, and that she had played with anatomically correct dolls in a sexual nature.” Id. at. 541-42. Also, trial counsel was in possession of other DSS reports documenting prior abuse which he never brought to the court’s attention. Trial counsel did bring a motion in limine, but the judge deferred ruling on it and counsel never renewed his request.

39)       The Appeals Court declared that failure to renew this request undeniably prejudiced the defendant and constituted “incompetency and inattention well within the comprehension of Saferian.” Id. at 546. Moreover, the Court held that this was so even if the evidence of prior abuse was not identical:

We see nothing in [Ruffen] that mandates that the evidence of prior sexual abuse of the victim be identical to or the same as that of which the defendant stands accused. Rather, we read Ruffen and its progeny to hold that for any evidence of prior sexual abuse adduced at the voir dire to be admissible at trial, that evidence must show that the prior abuse of the victim was sufficiently similar to the present allegations to account for the victim’s knowledge of the matters comprehended by the indictments against the defendant.    

Id. at 546-47.

40)       Similarly, in Commonwealth v. Scheffer, 43 Mass.App.Ct 398 (1997), the court found that counsel should have brought a motion pursuant to Ruffen and that the error was significant enough to warrant a new trial. Among other things, it also noted that “the Ruffen principle might loom less large in a case where there was anatomical or percipient witness evidence (from other than the purported victim) that made the government case of sexual abuse overwhelming.” Id. at 401.

41)       Like Owen and Scheffer, here there was no evidence other than the children’s own testimony. There was no reliable physical evidence^[7] and no witnesses to the acts. Moreover, there was an overarching theme advanced by the prosecution that these children could not have possibly lied for they had no other source of information. In his closing, ADA Ford emphasized as much. Tr 8/48-49, 8/64.

42)       To the extent trial counsel had information of prior abuse, he was ineffective in not pursuing that information as detailed in Ruffen and progeny.

2.         Trial Counsel Committed Several Errors at Trial

43)       Aside from preparation, trial counsel was also deficient during the trial.

44)       Trial counsel failed to object to the closing of the courtroom. When the children testified, the judge sua sponte closed the courtroom to everyone except for the children’s parents and Mr. Baran’s family. The judge did not first make the findings required before closing a courtroom:

[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).

45)       The Sixth Amendment right to a public trial can be waived, but that waiver must be knowing, intelligent, and voluntary.  Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 340 n.1 (1994); Martineau v. Perrin, 601 F.2d 1196, 1199-1200 (1^st Cir., 1979).  There is no evidence that Mr. Baran knew that he had a right to a public trial, much less that he waived it. Mr. Baran 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 Mr. Baran on his right to a public trial.

46)       While a defendant’s right to a public trial may be waived as a trial tactic by competent counsel, Commonwealth v. Williams, 379 Mass. 874, 876 (1980), Commonwealth v. Wells, 360 Mass. 846 (1971), there is no evidence that trial counsel’s acquiescence in the exclusion of the public from the competency hearing and from the trial during the children’s testimony was a trial tactic.

47)       “[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).

48)       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.

49)       Appellate counsel was also ineffective for failing to raise this issue since doing so would have resulted in a new trial. Martin, supra at 196, citing Waller v. Georgia, supra at 49.

50)       Trial counsel was further ineffective for not seeking to exclude evidence that Boy A had contracted gonorrhea and then not seeking a mistrial after the indictment against Boy A was dismissed.

51)       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 Mr. Baran also had gonorrhea, the diagnosis of gonorrhea was not a link in a chain of evidence that pointed to Mr. Baran.  See Commonwealth v. Burke, 339 Mass. 521, 533-534 (1959). Defense counsel should have objected and the judge should have excluded the gonorrhea evidence.

52)       Furthermore, after the indictment against Boy A was dismissed, counsel should have moved for a mistrial, or at least a curative instruction that the jury was not to consider the evidence. “A trial judge retains broad discretion in deciding whether to grant a mistrial.” Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). However, “prompt, forceful, critical instructions [ ] can obviate any prejudice and eliminate any constitutional basis for a claim that a defendant was entitled to a mistrial.” Commonwealth v. Morgan, 369 Mass. 332 (1975).

53)       Instead, trial counsel continued to present his case as if the evidence were still relevant, prolonging the jury’s exposure to this prejudicial evidence. He elicited testimony from Mr. Baran about his history of treatment for venereal disease, opening the door for the prosecution to cross examine Mr. Baran about the fact that it may have been gonorrhea. Trial counsel also argued this point at closing, again opening the door for the prosecution to rebut.

54)       Once the charges against Boy A were dismissed, the evidence of gonorrhea and the alleged abuse, at most, would have been admissible to show a common scheme or course of conduct. See Commonwealth v. Barret, 418 Mass. 788 (1994). Even then, it would likely have been excluded because it was highly prejudicial. Id. “[N]o evidence could be more inflammatory or more prejudicial than allegations of child molestation.” United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993). Therefore, a motion for a mistrial may have been granted and curative instructions were surely warranted.

55)       Trial counsel was also ineffective for failing to keep the Commonwealth from presenting Mr. Baran’s homosexuality as evidence he was more likely to have committed these crimes because of it.

56)       Generally, evidence of homosexuality is extremely prejudicial. See State v. Woodard, 146 N.H. 221, 225 (2001)(Reversible error to introduce evidence of adult lesbian relationship in trial of female middle school teacher charged with sexual assault of female student.); United States v. Gillespie, 852 F.2d 475, 479 (9th Cir. 1988). “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).

57)       “In this case, the evidence was improperly introduced because homosexuality is not relevant to the crime charged. The belief that homosexuals are attracted to prepubescent children is a baseless stereotype.” Bates, 507 N.W.at 852.  “Evidence implicating [a defendant’s] sexual orientation [is] particularly prejudicial because he was being tried on numerous sex offense charges: the jury’s inference that [Mr. Baran] 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.

58)       Evidence of homosexuality was also irrelevant in this case since three of the alleged victims were female.

59)       The prejudice was compounded when the Commonwealth elicited testimony that homosexuals are more likely to have gonorrhea.

60)       The prejudice of the evidence of homosexuality and its link to gonorrhea far outweighed any probative value it may have offered.

61)       The only probative value that Mr. Baran’s homosexuality may have had was in confirming that the allegations were a product of homophobia. However, as noted, 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 Boy A–and then had a motive to set up Mr. Baran–the strategy of not seeking to preclude this evidence would have been reasonable. Instead, Mr. Conway framed the issue such that the only possible source of Boy A’s gonorrhea was Mr. Baran. To the extent this was a strategic decision at all, it was “manifestly unreasonable.” Commonwealth v. Bousquet, 407 Mass. 854, 863-64 (1990) citing Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). 

62)       Therefore, trail counsel was ineffective. He failed to keep out evidence of gonorrhea, or the Commonwealth’s assertions that homosexuals were more likely to have and infect others with it, and instead further elicited and emphasized these assertions to Mr. Baran’s detriment.

C.        Prosecutorial Misconduct

63)       The prosecutor committed several errors of law which warrant a new trial.

1.         The prosecution withheld exculpatory evidence

64)       A prosecutor has a duty to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963).

65)       That duty is not absolute:

[A] “prosecutor cannot be said to suppress that which is not in his possession or subject to his control,” and thus “[o]rdinarily the prosecutor’s obligation to disclose information is limited to that in the possession of the prosecutor or police.” The prosecutor is not expected “to produce exculpatory evidence held by government agencies other than the prosecutor and police.” The “police” to which that rule applies are those police who are participants in the investigation and presentation of the case. “The prosecuting attorney’s obligations . . . extend to material and information in the possession or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.”

Commonwealth v. Daye, 411 Mass 719, 734 (1992) (citations omitted).

66)       In this case, the prosecutor did not disclose evidence clearly within his control and that of the officers investigating this case: the unedited videotapes of the interviews with the children, the police reports authored by Detective McGuire regarding Chino, the 51A/B reports of Girl E and Boy A concerning prior abuse, the 51A/B reports of all the children who were not the subject of criminal complaints, and the police report which stated Boy A’s Family had complained about Mr. Baran’s homosexuality to ECDC.

67)       This evidence was all exculpatory. Exculpatory evidence is not merely evidence of innocence. It is “evidence which provides some significant aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a material, although not indispensable, element of the prosecution’s version of the events, or challenges the credibility of a key prosecution witness.” Commonwealth v. Gregory, 401 Mass 437, 441 (1988), quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).

68)       Because Mr. Baran made a specific request for these documents, he “‘need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure.’” Commonwealth v. Healy, 438 Mass. 672, 680 (2003), quoting Tucceri, at 412. This standard does not envision a sufficiency of the evidence test; rather, a new trial is warranted when “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

69)       A new trial is warranted 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). Moreover, the impact of the suppressed evidence is considered collectively, not item by item. Kyles, 514 U.S. at 436-37. Given the entire record, looking at the withheld evidence collectively, the omissions by the prosecution create a substantial miscarriage of justice. The withheld evidence would have allowed defense counsel to pursue many avenues of defense. Notably, defense counsel could have requested a Ruffen hearing to develop evidence which would question the credibility of Girl E and Boy A, since both had accused someone other than Mr. Baran of prior abuse. Commonwealth v. Ruffen, 399 Mass. 811, 816 (1987).

2.         The Grand Jury Proceedings were Tainted

70)       Newly discovered evidence, in the form of the unedited videotapes, demonstrates that the grand jury proceedings were tainted.

71)       The grand jury minutes cannot now be located. Moreover, no testimony was taken from anyone who was present during the grand jury presentation in this case. Nevertheless, it is known that the children themselves did not testify but, rather, the grand jury saw an edited video of the interviews with Boy A, Girl F, Boy D and Girl B.

72)       A grand jury must hear sufficient, competent evidence of criminality or else “all subsequent proceedings taken in reliance upon the indictment [are] void.” Commonwealth v. McCarthy, 385 Mass. 160, 162 (1982), quoting Connor v. Commonwealth, 363 Mass. 572, 574 (1973). Evidence is not competent if an indictment results from having made an “unfair and misleading” presentation which impairs the integrity of the proceedings. Commonwealth v. O’Dell, 392 Mass. 445, 446 (1984). Moreover, two further elements must be shown. First, there must be a showing that the “deceptive evidence was given knowingly and for the purpose of obtaining an indictment.” Commonwealth v. Mayfield, 398 Mass. 615, 622 (1986). In this respect, “reckless disregard of the truth leading to the presentation of false or deceptive evidence could also warrant dismissal of an indictment.” Id. Secondly, a defendant must make a showing that the presentation of deceptive evidence “probably influenced the grand jury’s determination to hand up an indictment.” Id.

73)       The presentation of the edited tapes was misleading. It painted a distorted picture of the children’s interviews. The edited tapes made the children seem sure of themselves, when in reality they were not. The sheer length of the videos alone demonstrates how tedious it was to even get a few “useable” sound bites to play for the grand jury. It would have been one thing if the District Attorney had edited out, for example, a scene where a parent drops off the child and then leaves the room. But the District Attorney edited out substantive testimony and evidence of suggestive interview techniques.

74)       Given the record in this case, it can be inferred that the edited videotapes were submitted intentionally or at least recklessly. Mayfield, 398 Mass. at 622. The District Attorney intentionally and purposefully kept out evidence which would have questioned the accuracy of the children’s testimony by editing the tapes and “sanitizing” them for the grand jury. The very act of editing demonstrates a conscious decision to exclude certain statements from the grand jury. Additionally, this deceptive evidence probably influenced the decision to indict. Mayfield, 398 Mass. at 622. The most important witnesses in that proceeding were the children, even if only via videotapes. Any other witnesses, such as Jane Satullo, were only called to bolster and possibly explain the significance of the children’s testimony. But the children were the source of the allegations and simply indispensable–without those videos, there was no competent evidence of abuse. Had the children not accused the defendant, then the lack of physical evidence and witnesses would have surely resulted in a lack of an indictment.

75)       In a very similar case, the SJC held that evidence like that edited out of the videotapes must be presented to the grand jury:

Where, as here, evidence known to the prosecutor would greatly undermine the credibility of an important witness, the prosecutor must at least alert the grand jury to the existence of that evidence. If the grand jury were not made aware of circumstances which undermine the credibility of evidence that is likely to have affected their decision to indict, then the appropriate remedy may be dismissal of the indictment.

Commonwealth v. Connor, 392 Mass. 838, 854 (1984). The indictments were not dismissed in Connor, however, because even though the prosecutor had withheld the fact of a witness’ prior inconsistent statement, the witness himself acknowledged the statement in his testimony. Id. at 854-55.

76)       Unlike Connor, the evidence that would undermine the witnesses’ credibility in this case–that the children explicitly denied defendant had done anything to them–was not presented by any other witness. Indeed, the transcript of Jane Satullo’s grand jury testimony demonstrates that she represented the only thing cut out of the tapes was footage of her “familiarizing” herself with the children:

Q.        Now, I am going to play the videotapes of those two interviews. I want to tell you that they have been cut down. Is it fair to say that the interview lasted some time?

A.        Yes.

Q.        Is it fair to say that most of the time or much of the time was spent trying to familiarize yourself with the child and have the child get to the point where he or she would trust you and speak with you?

A.        That’s exactly right. It takes a lot of time to gain a child’s trust.

Q.        I want to tell that you [sic] much of that has been cut out and I am going to show you a portion of the interview in each case[.]

Grand Jury Testimony of Jane Satullo, pg. 18-19.

77)       Ms. Satullo could have testified about the other statements the children had made exonerating defendant, and then the grand jury would have been called upon to decide which version was true. But she did not, and so the grand jury was given an extremely lopsided presentation.

78)       Because the prosecution withheld exculpatory evidence from the grand jury, the grand jury proceedings were tainted..

3.         The Prosecution’s Closing Argument was Improper

79)       Many portions of the prosecutor’s closing argument went beyond the bounds of what is permissible. He elicited sympathy for the children and their parents, manufactured, mischaracterized and misused testimony, vouched for the children, attacked Mr. Baran’s right to present a defense, and improperly inflamed the jury. See generally Commonwealth v. Kozec, 399 Mass. 514 (1987).

80)       As the District Attorney concedes in his opposition, courts have been recently examining closing argument with greater scrutiny. This issue alone would not be enough to warrant a new trial. Taken within the context of all the errors, however, it adds substantially to the conclusion that there was a miscarriage of justice.

D.        Newly Discovered Evidence

81)       In addition to the legal errors in Mr. Baran’s case, there is newly discovered evidence which  casts a real doubt on the justice of Mr. Baran’s conviction.

1.         Conflict of Interest

82)       Newly discovered evidence indicates that Mr. Baran’s appellate counsel had a conflict of interest.

83)       “A defendant is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by the commitments to others.” Commonwealth v. Michel, 381 Mass. 447, 453 (1980), quoting Commonwealth v. Davis, 376 Mass. 777, 780-81 (1978). A defendant’s conviction will be reversed if he shows his lawyer had an actual conflict of interest. See Commonwealt v. Fogarty, 419 Mass. 456, 459 (1995); Commonwealth v. Teti, 60 Mass.App.Ct. 279, 284 (2004). Upon such a showing, a defendant need not demonstrate any prejudice–the conflict in and of itself impairs the assistance of counsel guaranteed under the Massachusetts Declaration of Rights. Fogarty, supra, at 459; Teti, supra, at 284.  An actual conflict arises “where the independent professional judgment of trial counsel is impaired, either by his own interests, or by the interest of another client.” Teti, supra, at 284.

84)       If a defendant cannot demonstrate an actual conflict, he may still prevail by showing that there existed a potential conflict of interest which resulted in actual prejudice. Fogarty, supra, at 459; Teti, supra, at 286. Prejudice is “measured against the standard in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), as in cases involving claims of ineffective assistance of counsel.” Teti, supra, at 286-86, quoting Commonwealth v. Corken, 432 Mass. at 272.

85)       The circumstances surrounding defendant’s appellate counsel indicate that he was conflicted, and should not have represented Mr. Baran. Reasonable inferences suggest that Mr. Baran’s appellate counsel  Cain, Hibbard, Myers, and Cook (“Cain, Hibbard”) began representing one of the alleged victims before Mr. Baran’s trial even commenced. Jeffrey Cook, a partner at Cain, Hibbard, requested and received a copy of the search warrant in Mr. Baran’s matter on January 3, 1985–almost one month before the trial even began.

86)       A few days after the trial, David Burbank, the attorney who eventually wrote Mr. Baran’s appellate brief, requested documents from both the District Attorney’s office and from Dr. Sheeley concerning Mother E and her daughter, Girl E, and included a signed release by Mother E. It can reasonably be inferred that Mr. Burbank received the documents he requested. Through these documents, Mr. Burbank and Cain, Hibbard were put on notice that Girl E had made a complaint against Chino that he had abused her on or around July 4, 1984. Mr. Baran first learned of this accusation on November 26, 1984, through trial discovery of Dr. Sheeley’s notes dated October 13, 1984. Without a doubt, these notes would have been in the documents which Dr. Sheeley turned over to Mr. Burbank. Additionally, Dr. Sheeley likely turned over many medical documents which were likely privileged and were only acquired specifically because Mr. Burbank represented Girl E/Mother E. These documents may have included the newly discovered DSS report or even another authored by Dr. Sheeley, since she was a mandatory reporter under G.L. c. 119 § 51A.

87)       Moreover, at this stage, as counsel for Girl E/Mother E in an action arising out of Mr. Baran’s alleged conduct, Mr. Burbank knew of a crucial fact which would have diminished, if not eliminated, the ability of his clients to recover damages. If Mr. Baran was not the person who molested Girl E, then any recovery against ECDC would be in jeopardy. His interest and loyalty to Girl E/Mother E required him to downplay the Chino allegation and emphasize the Baran one instead.

88)       Therefore, when Cain, Hibbard took on Mr. Baran’s appeal, they were placed in a situation of having both acquired privileged information which inhibited them from competently representing the defendant and of competing loyalties See Commonwealth v. Soffen, 377 Mass. 433, 437 (1979). The Rules of Professional Conduct in effect at the time counseled against representation in these instances. Disciplinary Rule 5-105(A) stated that “[a] lawyer shall decline proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests[.]” 382 Mass.783 (1981). In certain cases this could be waived, though only if each client consented, D.R. 5-105 (C), 382 Mass. 784; but Mr. Baran did not consent in this case since he was never even told of the conflict.

89)       The current version of this rule notes that “[l]oyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.” Mass.R.Pro.C. 1.7, comment 4.

90)       Cain, Hibbard, and specifically Mr. Burbank, had information which they could not share with Mr. Baran or use in his defense, apart from the information they received from trial counsel and from the District Attorney. By representing Girl E/Mother E, albeit for a short period of time, they had in their possession privileged documents which they were ethically prevented from turning over to a third party; logically, they were prevented from using them to aid Mr. Baran or risk breaching client-lawyer confidentiality they had established with Girl E/Mother E. See D.R. 4-101, 382 Mass. 778 (1981); Mass.R.Prof.C. 1.6 (“The confidentiality rule applies not merely to matters communicated in confidence by the representation, whatever its source). Indeed, Howard Guggenheim, the lawyer who took over the civil case, confirmed that he received a copy of the file from Cain, Hibbard, therefore affirming that they retained their own copy of the file with all the original documents.

91)       Additionally, it is unclear what Mr. Burbank’s relationship was with respect to his representation of Girl E/Mother E when he first took on Mr. Baran’s case. In some instances, even though an attorney’s representation of a client has ended, an ongoing relationship with that client causes a conflict when representing a defendant in a related matter. See Commonwealth v. Martinez, 425 Mass. 282, 290 n.7 (1997); Commonwealth v. Wooldridge, 19 Mass.App.Ct. 162, 167-68 (1985). In other cases, courts have found actual conflicts when the same law firm represented both a defendant and a prosecution witness, even if the representation of the witness was in an unrelated  civil matter. See Commonwealth v. Hodge, 386 Mass. 165, 168-69 (1982), and cases cited. Mr. Baran’s case mirrors these scenarios: the representation of the civil clients was in a related matter and its success depended entirely on Mr. Baran’s guilt.

92)       In the alternative, given the newly discovered documents, defendant’s appellate counsel had a potential conflict of interest. A court must reverse a conviction if counsel had a potential conflict which adversely prejudiced the defendant. “To show that he was materially prejudiced, a defendant must show that irremediable harm ha[d] resulted and that it prevent[ed] the possibility of a fair trial.” Commonwealth v. Griffin, 404 Mass. 372, 377 (1989).

93)       In their appellate brief, Cain, Hibbard did not raise the Chino allegation. They were handcuffed from raising it as a preserved appellate issue because trial counsel never entered it into the trial record. They were not, however, barred from claiming trial counsel was ineffective in not exploring the allegation further. Trial counsel did not argue that someone other than Mr. Baran may have abused Vanessa and he failed to use this evidence to cross-examine or impeach Vanessa, her mother, or Dr. Sheeley. Indeed, he failed to do what any competent attorney would have done when confronted with such clearly exculpatory evidence–use it to defendant’s advantage. Appellate counsel should have argued that trial counsel was ineffective–but they did not.

94)       In short, “the defendant is not to be put to the burden, perhaps insuperable, of proving the resolve and possible mental conflicts of counsel. Both the potential for prejudice and the difficulty of proving it are apparent, particularly as to things that may have been left not said or done by counsel.” Commonwealth v. Cobb, 379 Mass. 456, 461 (1980).

2.         Normal Hymenal Pathology

95)       New scientific information indicates that Girl B’s hymenal pathology–which Dr. Jean Sheeley described as exhibiting injuries consistent with full penetration, Trial 6-124–is actually normal when analyzed with information and research developed since Dr. Sheeley’s examination. This information casts a grave doubt on Mr. Baran’s conviction. As often happens with child sex abuse cases, the theme of the prosecution was that these children were abused  because there was no other way to explain their testimony and injuries. The jury was led to believe that Girl B was one of two children to exhibit physical signs of abuse (the other being Boy A). Were Dr. Sheeley’s analysis accurate, then the jury would wonder how else could Girl B have received this injury but for abuse. However, absent this evidence, which modern science shows is now inaccurate, the jury would be more likely to believe that the only evidence against Mr. Baran–the children’s testimony–may have been unreliable. Absent Dr. Sheeley’s report, the physical evidence no longer corroborated the child’s testimony.

96)       This information, which was unavailable at the time of trial, casts grave doubt on the justice of Mr. Baran’s conviction.

3.         Recent Recantations

97)       There is also newly discovered evidence that three of the children recanted their accusations against Mr. Baran in reliable settings. This evidence alone might not support a new trial. Nevertheless, given the amount of errors in Mr. Baran’s trial, it certainly adds to the list of reasons which make Mr. Baran’s guilt doubtful.

E.         Reevaluation of Previously litigated issues

98)       Some issues were previously litigated. These issues are not foreclosed from relitigation. Rather, I have discretion to review them in “those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Commonwealth v. Watson, 409 Mass. 110, 112 (1991), quoting Commonwealth v. Harrington, 379 Mass. 446, 449 (1980).

1.         Suggestiveness

99)       The argument that the children were subjected to suggestive interview techniques was raised by prior counsel. The argument is particularly worthy of reevaluation given the unedited videotapes, to which counsel did not have access, and given the fact that counsel did not even seek consultation from an expert in trying to determine the effects of the various interview techniques.

100)     As detailed throughout this ruling, and in the findings of fact, the children were subjected to various suggestive interview techniques which tainted their testimony.

101)     While the science behind suggestiveness was available at the time of Mr. Baran’s trial, See Commonwealth v. LaFave, 420 Mass. 169 (1999), it was never used in this case. Therefore, to the extent that any prior counsel argued it, the argument was unsupported by anything on which a court could rely in making a proper evaluation.

102)     Though twenty years later, with the testimony of an expert and accurate evidence of the techniques used with these children, I find that the suggestiveness in this case resulted in a substantial miscarriage of justice.

2.         Competency

103)     The issue of whether the children were competent to testify was thoroughly litigated at trial and again on appeal. Nevertheless, apart from the legal framework used to evaluate the children’s competency, new evidence of the unedited videotapes, along with the testimony of Dr. Maggie Bruck, demonstrates that none of the children were competent to testify.

104)     Assuming that the judge and appellate court made the appropriate legal findings, neither court had access to the information which I now possess. This new information casts a doubt over the trial court’s original ruling.

105)     A witness is competent to testify in Massachusetts if he (1) possesses the ability or capacity to observe, remember, and give expression to that which he has seen, heard, or experienced, and (2) comprehends the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and in a general way, belief that failure to perform the obligation will result in punishment.  Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986), citing Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921).

106)     Given the suggestive techniques to which the children were subjected, it cannot be said that by the time of trial they comprehended the difference between truth and falsehood. They only knew what they were supposed to say. And not only were they subjected to suggestive techniques, they were coached by the District Attorney and members of his office before they eventually testified at trial.

107)     As previously noted, “[o]nce this tainting of memory has occurred, the problem is irredeemable. That [tainted] memory is, from then on, as real to the child as any other.” State v. Wright, 775 P.2d 1224, 1228 (1989).

3.         Fresh Complaint

108)     Likewise, the fresh complaint evidence has been subjected to thorough court review. Given the developments in this case since trial, it is difficult to declare any testimony which went beyond the bounds of proper fresh complaint evidence was not prejudicial.

109)     And to the extent that the evidence was appropriately admitted, it is still problematic in light of the fact that the children’s competency and testimony is now questionable. Massachusetts is only one of three states which still allow fresh complaint witnesses to testify as to the details of the complaint. See Commonwealth v. Peters, 429 Mass. 22, 30 n.9 (1999). In order to assure that the fresh complaint doctrine does not violate a defendant’s right to a fair trial, however, the underlying statements must be competent. Otherwise, as in this case, the fresh complaint evidence becomes a self-fulfilling prophecy instead of corroborating evidence.

F.         New Constitutional Law Applicable to Mr. Baran

110)     Apart from the newly discovered evidence, there exists newly developed legal principles which are of such magnitude that they should be applied retroactively. The “clairvoyance” exception treats any constitutional issue as preserved which “was not sufficiently developed at the time of trial or direct appeal to afford [Mr. Baran] a genuine opportunity to raise his claim at those junctures of the case”  Randolph, supra, 438 Mass. at 295.

111)     One of the most important issues applicable to Mr. Baran’s case is a defendant’s right to conduct voir dire of an accuser who has made prior allegations against another under Commonwealth v. Ruffen, 399 Mass. 811 (1987). Indeed, Ruffen was not sufficiently developed. The SJC relied principally on out-of-state cases in arriving at its conclusion that this evidence was constitutionally significant. Ruffen, at 814-15. It would be unfair to assume Mr. Baran could have forced this issue at the time.^[8]

III.       CONCLUSION

The process in which Mr. Baran was convicted was fraught with errors which pervaded almost every aspect of his prosecution. The very evidence supporting the allegations–the accusations by the children–has now proven unreliable and forever tainted. His trial counsel was ineffective and totally unprepared for a case of this magnitude: he did not investigate the matter, his performance at trial was poor, and he had only a couple of months to prepare. His performance, however, was surely influenced by the fact that the prosecution withheld exculpatory evidence, presented a skewed version of events to the grand jury, and used improper rhetoric throughout the trial.  Moreover, Mr. Baran has produced newly discovered evidence which bolsters his motion and points to significant legal developments which should apply retroactively to his benefit. All the evidence presented leads to only one conclusion: there is a substantial likelihood that Mr. Baran’s conviction was a miscarriage of justice.

Mr. Baran deserves a new trial.

Date:                                                               ____________________________________

Justice Francis Fecteau