Bernard Baran Blog

Dear Friend of Bee,

This letter appears in today’s Berkshire Eagle: http://www.berkshireeagle.com/letters/ci_12449096

-Bob Chatelle

Dear Friend of Justice,

Jim D’Entremont and I first became aware of the Baran case in 1995, but all we knew about it was the information found on Jonathan Harris’s web site. Our involvement really began in June of 1998, at the urging of our friend, Debbie Nathan. On the day that Judge Borenstein issued his ruling in the Amirault case, Debbie emailed us:

Bob, with this ruling I hope someone will be inspired to help Bernie Baran: as you know, he’s the first daycare worker convicted in a ritual abuse case — also out of Massachusetts — and the reason it started apparently is because he “came out” in his little town and announced his homosexuality at the age of 18. The guy has now been locked up 13 years and is going to rot behind bars unless someone takes an interest in his case. Now might be the time to start.

It took us another year to get essential documents in the case. When we read them, we were appalled. We were especially appalled at the conduct of the prosecutor, Daniel A. Ford.

Ford was ambitious and ruthless. He used the Baran case to make his career.  This strategy was successful. Governor Michael Dukakis made him a Superior Court Judge twenty years ago. He remains a judge today. He is an important member of the power structure of Berkshire County.

Thus far, criticism of Ford has been very muted. He is almost never mentioned by name in press accounts of the Baran case. Judge Fecteau made no ruling on the charges of prosecutorial misconduct when he granted Baran a new trial. I do not fault Fecteau for this. I believe he was doing what he thought would be most effective in achieving the ends of justice. Criticizing a brother judge could have eventually caused the waters to be muddied and thus blunted the effectiveness of his excellent decision.

But the Massachusetts Appeals Court has decided that the time has finally come to start talking about the elephant that’s been hiding under the rug.

The Court needed to say nothing about prosecutorial misconduct, because no ruling had been made on that issue.  Never the less, they found they had quite a bit to say.

Several things troubled them:

1. Dan Ford deliberately withheld from the defense the videotapes of the child interviews — interviews which contained a huge mass of exculpatory material.
2. Dan Ford deliberately withheld from the defense police reports and DSS materials indicating that at least two of the children were very likely sexually abused by someone other than Baran. [Not surprisingly, no charges were ever brought against these men, who were very likely real child abusers.]
3. Dan Ford deliberately misled the Grand Jury by showing them a composite videotape with all exculpatory material excised.
4. Dan Ford turned over material from his case files to the law firm representing the mother of one of the alleged victims.

I think that bill of indictment should be sufficient to have Dan Ford impeached and disbarred, if not sent to prison for obstruction of justice.

A fifth charge is intimidation of potential defense witnesses. I think this affidavit gives us a good glimpse of Judge Ford’s moral character. (I believe there were other potential witnesses silenced by threats from Dan Ford as well.)

I suppose there are some who would excuse Dan’s Ford misbehavior by saying that he truly believed in Baran’s guilt and was sincerely interested in protecting children. But don’t believe that.

After Ford rested his case, he offered Baran the chance to plead guilty in exchange for a five-year sentence. Half would be served at the county jail and half at a low-security facility called  The Sherriff’s Home. (He told Baran that if Baran did not accept this offer, Ford would make sure that Baran spent his entire life in prison.) Would Ford have made such an offer to someone he considered guilty? Would any guilty person turn down such an offer? Ford wanted his conviction and he didn’t care how he got it. It was the very first conviction that occurred during the 80’s daycare hysteria.

I believe that the Appeals Court has fired a warning shot across Dan Ford’s bow.

It will be interesting to see how he — and his chief protector, DA David Capeless –will respond.

But however they respond, the Baran case is now over. Capeless might appeal and the SJC might decide to hear it. But I can see no way the SJC could — or would — invalidate the two excellent decisions written by Judge Fecteau and by the Massachusetts Appeals Court. And there is no way this case could ever be retried.

Bernard Baran is not a criminal. In my opinion, Dan Ford is.

But  the elephant’s days of hiding under the rug are coming to an end.

-Bob Chatelle

Bee Baran just phoned us. The Appeals Court has upheld Judge Fecteau’s decision and affirmed his right to a new trial.

I read the decision, but very quickly. it strikes me as very strong. Here it is: Appeals Court Decision.

And here is the conclusion:

IV. Conclusion. We do not lightly affirm the order granting a new trial. For that reason, we have painstakingly examined the record, the motion judge’s decision, and the legal issues on which it is based. The charged offenses are grave and we are mindful that the passage of so much time will impose heavy burdens on all concerned in the event of a retrial.(55) At the same time, it cannot be said that the defendant received anything close to a fair trial. Preserving public confidence in the integrity of our system of justice must be our paramount concern notwithstanding the costs our decision today might occasion. “Our desire for finality should not eclipse our concern that in our courts justice not miscarry.” Commonwealth v. Amirault, 424 Mass. at 660 (O’Connor, J., dissenting).

The motion judge did not abuse his discretion in granting the defendant a new trial and vacating the convictions and sentences.

-Bob Chatelle

I fear I spoke too soon. In a more complete story, it was pointed out that there is a footnote in the decision giving judges the discretion to impose the bracelet.

Baran’s conditions are determined by Judge Jeffrey Locke, a Mitt Romney appointee and a truly terrible judge, even by Massachusetts standards.

-Bob Chatelle

Bernard Baran was released nearly three years ago, although his case is still not resolved. (The Appeals Court has been sitting on it for nearly 15 months now.)

Baran was released under obnoxious restrictions, including unreasonable curfews and the requirement that he wear a GPS monitoring bracelet. The GPS device has caused him a lot of grief, partly because the technology really doesn’t work very well.

Well, we received some great news today. The Massachusetts Supreme Judicial Court has ruled that monitoring devices can only be required for people who have been convicted of a crime. Since Baran’s conviction was thrown out three years ago, my presumption is that the bracelet will come off soon.

See http://www.boston.com/news/local/breaking_news/2009/05/high_court_over.html

I will keep you posted on developments.

-Bob Chatelle