Status Report: March 26, 2004
Status Report as of 26 March 2004
SWOMLEY & ASSOCIATES
Attorneys at Law
227 Lewis Wharf
Boston MA 02110-3927
March 26, 2004
To the friends and supporters of Bernard “Bee” Baran:
We are writing this letter to you to bring you up-to-date on the status of Bee’s Motion for New Trial. A draft of the motion will be ready for circulation and comment by the middle of April.
In the next few weeks, we will overcome the last major obstacle to completing the Motion. You may be aware we have been unable to reconstruct the original case file. The trial attorney told us that he gave everything he had to the appeals attorney. The law firm that did the appeal told us that they burned the file in a periodic purge of closed files. The Berkshire District Attorney resisted disclosing the contents of his files until ordered to do so by the Court in March of last year. At that time, he provided us with nothing more than twenty or so police reports. After much resistance, he disclosed a few medical records and a handful of DSS reports in late July. We know there is much, much more to the investigation file.
At the end of October, in what we believe was a response to the recalcitrance of the District Attorney, the judge granted us the authority to subpoena records from other sources. Within a week, we issued subpoenas to various law firms involved in law suits against the day care center, medical offices, state agencies, and the Pittsfield Police Department. To date, about half of the subpoenas have been complied with. The information has been provided pursuant to a confidentiality order, so we are precluded from telling you what we have obtained but, suffice to say, we have obtained some extremely valuable information. We expect that we will be back in front of the judge on April 13, to seek compliance with the balance of the subpoenas. [Note: This date was not open on the judge's calendar. The hearing has not yet been scheduled.]
In the meantime, despite the lack of a complete case file, we have forged ahead with the Motion for New Trial. We are very nearly finished with a comprehensive draft. It appears that it will be nearly two hundred pages in length, not including exhibits. Some of the finest lawyers in the field have agreed to read the draft to insure that we have left no stone unturned. We expect the draft will be ready for circulation and comment by the middle of April. That process will probably take two weeks. We’ll then take the comments that we get, as well as any additional information that we obtain from the outstanding subpoenas, and prepare a final draft for filing. That process could take anywhere from a week to a month, depending on the comments that we get and the magnitude of the new information that we obtain from the outstanding subpoenas.
Once the motion has been filed, the District Attorney will file a written response. Because the District Attorney that we are working with is new to this case (he was appointed to fill the office after Gerard Downing died last December), he will probably ask for an extension of time to respond. We will be agreeable to an extension, provided the District Attorney agrees that the motion will be set for hearing at the earliest possible date. We are hopeful that the Court will be able to set aside a week for us in September, but we have little control over the judge’s calendar.
Our motion raises issues that go to the very core of the right to a fair trial — Bee’s trial attorney was grossly incompetent and his appellate attorney was not much better; the prosecutor withheld critical information and engaged in outrageous tactics; the children’s testimony, which was the product of improper investigative techniques, was improperly bolstered by a series of lay and expert witnesses; the courtroom was improperly closed to the public when the children testified.
We are confident that the day is soon approaching that Bee will walk out of the courtroom a free man. In the meantime, we thank you for your continuing generous support.
Sincerely,
John G. Swomley
Pamela Nicholson