In an exhaustive and unequivocal recentdecision, Massachusetts Superior Court JudgeFrancis R. Fecteau ordered a new trial forBernard Baran, who, as previously profiled in thePhoenix and theNation, has been serving concurrent life sentences since the mid 1980s for child molestation at a daycare center in Western Massachusetts.
Judge Fecteau’s decision pivots on an ineffective-assistance-of-counsel claim stemming from the use — actually, the nonuse — of unedited videotaped interviews. The interviews, which were recorded as children were being prepped to testify, emerged mysteriously only after the death of the district attorney who originally tried Baran, demonstrate the utter pliability of the accuser-kids’ minds, and would have therefore proven markedly beneficial to Baran’s defense. Significantly, Berkshire County DA David F. Capeless, upon assuming his deceased former boss’s mantle, found and turned over the tapes that his predecessor claimed to be unable to find during a four-year “search” conducted only after Baran’s current counsel and Judge Fecteau demanded that they be found.
The grand jury that indicted Baran in 1984 had heard edited versions of the tapes. Had the jury that convicted him a year later heard the unedited originals, rather than the coached testimony of children on the stand, they might well have concluded that the allegations of abuse were planted in the children’s minds. Yet the tapes of the full interviews were never used at trial. Why not? As Judge Fecteau details, either the trial counsel didn’t know of their existence (a possibility that raises grave questions about the original prosecutor’s honesty) or Baran’s defense lawyer, who was paid $1000 by the Baran family to handle the entire trial, knew of the videotapes and didn’t use them (a possibility that raises equally grave questions about the quality of legal representation for poor defendants. Either way, Judge Fecteau ruled, Baran’s lawyer provided ineffective counsel, and thus Baran deserves at the very least a new trial.
Judge Fecteau goes on to dissect, expose, and decimate the pseudo-scientific fervor that fueled the hysteria engulfing Baran’s prosecution in the first place. In no uncertain terms, Judge Fecteau takes the phony experts to task for their role in convicting a man on such shaky evidence. Nor did Judge Fecteau shrink from pointing out the role that homophobia almost certainly played in the jury’s verdict.
Rare is the decision that contributes to law and justice in such sweeping terms. Judge Fecteau’s opinion, which will assume a place of national importance, does just that.
(Disclosure: the author works in the law office of one of Baran’s current attorneys, Harvey Silverglate.)