Bernard Baran

Bernard F. Baran, Jr. (May 25, 1965 – September 1, 2014) was wrongfully convicted in the day care sex abuse hysteria of the 1980s and 1990s that was spawned by the McMartin preschool trial. Unlike other day care cases, the Baran case garnered little national press coverage.[1] The Baran case spanned almost 25 years from his arrest in October 1984 until all charges were dropped in June 2009.[2] Baran maintained his innocence throughout his case, making him ineligible for parole.[3][4] Baran was accused, tried and convicted within a three-month period and sentenced to three life sentences in January 1985. In 2009, the Massachusetts Appeals Court vacated the convictions, deeming the case "notorious,"[5] and citing the behavior of the original prosecutor as "troubling."[6] Along with its importance as the first successful conviction, the Baran case is notable amongst the day-care cases for the level of homophobia present in the court record of the prosecution.[7] The Baran case is the subject of the documentary film Freeing Bernie Baran.

Background

Bernard Baran took a job as a teacher’s aide in 1983 at the Early Childhood Development Center (ECDC) in his hometown of Pittsfield, the county seat of Berkshire County in Western Massachusetts. Shortly before his employment, social workers placed a four-year-old boy at ECDC due to the child’s home environment. Eventually the child ended up in the classroom where Baran worked. In September 1984 the Fells Acres Day Care Center preschool case broke and made news across Massachusetts. Shortly thereafter, the parents of the boy complained to the board of directors of ECDC that they “didn’t want no homo” working with their child.[8] The Board of Directors held a meeting on September 12, 1984 to specifically discuss Baran’s homosexuality[9] and the possibility of terminating his employment because of it. Baran retained his job after being questioned about his homosexuality by his superiors.[10]

First allegation

On October 1, 1984, the parents of the boy in question removed him from ECDC in protest of Baran’s continued employment. The parents were drug addicts and police informants. On October 5, 1984 they called their connection at the Pittsfield police department drug control unit.[11] They alleged that Bernard Baran molested their son at ECDC that day, three days after they had removed the child from the day care. The following day the police began an investigation at ECDC and validated this claim of sexual abuse.[12]

Hysteria

Word of the first allegation broke shortly after the investigation began. Within days the day care center had sponsored a puppet show to facilitate other children’s ability to talk about abuse. The day care also notified all the parents that a child at the day care had gonorrhea. After multiple children were interviewed with anatomically correct dolls at both of ECDC’s locations, one where Baran worked and one where he did not, Baran was indicted on 3 counts of rape and 5 counts of indecent assault on November 5, 1984.[13]

Trial

Baran’s case went from arrest to trial in 105 days, convening in court on January 23, 1985, receiving significant local media attention. The court room was closed to the public and the press during the children’s testimony without any hearing into the necessity for closing the court, which Baran claimed violated his 6th Amendment right to a public trial.[14] Baran was positioned in the court room so that he could not even hear the testimony of the children.[15] On January 30, 1985 he received three life sentences for three counts of rape of a child and five counts of indecent assault and battery. His conviction held up on appeal in 1986. The law firm that handled his appeal eventually destroyed his defense case file.[16]

Motion for new trial

In 1999 a new legal team took Baran’s case. In a series of hearings from 1999 to 2005, the original defense file was recreated from the contents of the civil suits filed against ECDC after the Baran conviction. The motion for a new trial contained over 300 flawed items in the original trial, including prosecutorial misconduct, ineffective assistance of counsel, and the use of suggestive interviewing techniques with the children. The motion rested in June 2005.

Release and freedom

Baran was granted a new trial in 2006.[17] The Berkshire County District Attorney’s office appealed the granting of a new trial in 2008. In 2009 the Massachusetts Appeals Court affirmed the 2006 ruling and set aside the 1984 convictions.

In 2010, Baran’s lawyers began the process of suing multiple parties in civil court on his behalf.[18] Even though a $400,000.00 settlement was reached in 2010 the state has denied liability and thus has yet to expunge his record.[19]

Death

Baran died suddenly on September 1, 2014, at his home in Fitchburg, Massachusetts. He was survived by his partner, David Colarusso.[20]

See also

References

  1. ↑ Pollitt, Katha. 2000-02-03. “Justice for Bernard Baran” The Nation. “The case didn't get much publicity outside the Berkshires, but it nonetheless has a place in history: Bernard Baran was the first person convicted in the wave of daycare-sex-abuse and satanic-ritual-abuse trials that swept the country in the mid-eighties."
  2. ↑ "D.A. Capeless decides not to continue prosecuting Baran." 2009-06-09. The Berkshire County District Attorney's Office.
  3. ↑ Berman, Dori; Lock, Carrie; Rainey, Richard; Taub, Lindsay. 2006-07-12. "The Catch-22 of Maintaining Innocence in Prison" The Boston Phoenix. "Baran fit the classic profile of an easy target. He was small, gay, effeminate, and a convicted pedophile — and he swore his innocence. His survival depended on negating these attributes as best he could. Ironically, the easiest one to change would have been his stance of innocence, the one he clung to the hardest."
  4. ↑ Pollitt, Katha. 2000-02-03. “Justice for Bernard Baran” The Nation."Baran has maintained his innocence through his imprisonment, making him ineligible for parole."
  5. ↑ Commonwealth versus Bernard F. Baran, Jr. Massachusetts Appeals Court Docket 07-P-1096. 2009-05-15. Introduction. "Trial by jury in this notorious case followed within three months; Baran was convicted on January 30, 1985, of three counts of rape of a child and five counts of indecent assault and battery.(1) He was sentenced to concurrent life sentences for each of the rape convictions and to concurrent eight- to ten-year sentences on each of the indecent assault and battery convictions, the latter to be served concurrently with the life sentences."
  6. ↑ Commonwealth versus Bernard F. Baran, Jr. Massachusetts Appeals Court Docket 07-P-1096. 2009-05-15. Page 17 C.Other Issues. 2. Prosecutorial misconduct. The motion judge did not address the defendant's contention that prosecutorial misconduct independently warranted a new trial, see Commonwealth v. Smith, 387 Mass. at 912, and made few findings relevant to the issue. In his motion, the defendant had called attention to prosecutorial vouching for government witnesses, improper closing argument, the failure to disclose significant exculpatory evidence in the government's possession, and intentionally presenting false and misleading evidence to the grand jury. Notwithstanding the absence of findings, the record provides support for certain of these contentions, as we have already noted in our discussion of vouching and improper argument. The record is less clear on the remaining points, though nonetheless troubling in certain respects.
  7. ↑ Superior Court Criminal Action No. 18042-51. The Commonwealth of Massachusetts versus Bernard F. Baran, Jr. Memorandum of Decision and Order on Defendant’s Motion For A New Trial. 2006-06-21. Ineffective Assistance of Counsel, page 32. “The defendant claims that he was deprived of the effective assistance of trial counsel in many ways, such as by his failure to properly investigate the alleged offenses, his failure to seek meaningful discovery from the Commonwealth and any assistance from experts in child psychology, failed to properly prepare for trial, failed to develop evidence that would support the defense that the evidence was unreliable and was the creature of an unfair climate of hysteria, homophobia and suggestion.”
  8. ↑ “Video helps clear convict of abuse after 21 years.” 2009-08-09. Associated Press / MSNBC. "His case had followed a tortured path — the first complaint came from a drug-addicted couple, acting as narcotics informants, who told their police connection they "didn't want no homo" watching their son."
  9. ↑ "Why is Daniel Ford still a Massachusetts judge?". Washington Post. October 10, 2014.
  10. ↑ Superior Court Criminal Action No. 18042-51. The Commonwealth of Massachusetts versus Bernard F. Baran, Jr. Memorandum of Decision and Order on Defendant’s Motion For A New Trial. 2006-06-21. Background, page 6. "In 1984, Bernard Baran worked at the Early Childhood Development Center (“ECDC”) as a teacher’s assistant. The allegations in this case emanate from his contact with pre-school children who were enrolled in this facility. The first family to bring accusations against Mr. Baran was that of Boy A. (A-94-95.) Previously, the boy’s father had filed a complaint with ECDC objecting to Mr. Baran being allowed to work with children because he was a homosexual. (A-94.) On September 12, 1984, the ECDC Board of Directors discussed Mr. Baran’s sexual orientation and his possible termination."
  11. ↑ “Video helps clear convict of abuse after 21 years.” 2009-08-09. Associated Press / MSNBC. "His case had followed a tortured path — the first complaint came from a drug-addicted couple, acting as narcotics informants, who told their police connection they "didn't want no homo" watching their son."
  12. ↑ Superior Court Criminal Action No. 18042-51. The Commonwealth of Massachusetts versus Bernard F. Baran, Jr. Memorandum of Decision and Order on Defendant’s Motion For A New Trial. 2006-06-21. Background, page 6. "On October 5, 1984, this family contacted the police to report that Mr. Baran had molested their child. (A-94-95.) The next day, this child was brought to the Berkshire Medical Center for an examination."
  13. ↑ Superior Court Criminal Action No. 18042-51. The Commonwealth of Massachusetts versus Bernard F. Baran, Jr. Memorandum of Decision and Order on Defendant’s Motion For A New Trial. 2006-06-21. Background, page 7-8."That night, the mother of Girl B got a telephone call informing her about the pending investigation against Mr. Baran. (Tr. 4/131-32, 4/144-45.) She was on the ECDC board when the complaints were made about Mr. Baran’s homosexuality. (Tr. 4/132.) Additionally, this woman had previously been abused herself. (A-474.) She contacted a friend who was a captain on the police department and reported that her daughter may have been molested. (A-96-97.) This captain in turn contacted two other detectives who, with Department of Social Services (“DSS”)worker Brian Cummings, eventually visited this residence that same night at 10:50 p.m. Id. Mr. Baran was arrested the next day on two counts of indecent assault and battery upon these two children. (A-99-100.) Beginning on October 9, 1984, these accusations became well publicized through local and state print media. (See generally A-164-170.) The DSS held a “good touch, bad touch” puppet show at ECDC on October 11, 2005. No verbatim account or transcript has ever been obtained and no one has ever said that such account was believed to exist; it is known that the puppet show was attended by many of the children who were the subject of DSS investigations, including some of the children that testified against Mr. Baran. Around the same time, ECDC sent several letters to parents about the accusations, arranged for various parent and child support groups, and advised parents on how to question their children about the possibility of having been abused and about the threat of gonorrhea. (A-630-647.) Following these events, there were four more children who made allegations against Mr. Baran, which became the subject of further police investigation, and who eventually testified at trial: Boys C and D, and Girls E and F."
  14. ↑ Commonwealth versus Bernard F. Baran, Jr. Massachusetts Appeals Court Docket 07-P-1096. 2009-05-15. Other Issues, page 15. "6. Failure to protect the defendant's right to a public trial. The record reflects and the parties appear to agree that, during the testimony of the children, the courtroom was closed to the public. Nothing in the record suggests that this was done upon motion of the Commonwealth or after any hearing at which the necessity of such action, or its impact on the rights of the defendant, was considered."
  15. ↑ Pollitt, Katha. 2000-02-03. “Justice for Bernard Baran” The Nation."In the courtroom Baran was placed not only where the children could not see him but where he could not even hear what was going on."
  16. ↑ Superior Court Criminal Action No. 18042-51. The Commonwealth of Massachusetts versus Bernard F. Baran, Jr. Memorandum of Decision and Order on Defendant’s Motion For A New Trial. 2006-06-21. Page 4. "Defense counsel also sought to reconstruct, as best as he was able, the files and information that was or would have been available to the defendant’s trial and appellate counsel, given the report that their files had been destroyed."
  17. ↑ Martinez, Edecio. 2009-08-10 CBS News. "Video Kept From Defendant Finally Sets Him Free, 21 Years Later." "In 2006, at age 42, Baran walked out of prison after serving 21 years. A judge overturned his conviction and ordered a new trial, citing the incompetence of his trial lawyer and the videotapes, which had recently resurfaced after years of being lost among boxes of evidence."
  18. ↑ Memorandum of Decision and Order on the Defendant's Motion to Dismiss. Docket No. 10-0106 Civil Action. 2010-07-06. "The plaintiff, Bernard Baran, filed this action against the defendants, the estate of Leonard Conway, David O. Burbank, and Cain, Hibbard, & Myers, P.C., in January 2010 alleging criminal malpractice."
  19. ↑ "Bernard Baran Jr. wants his record wiped clean. During a hearing Tuesday in Suffolk Superior Court, Assistant Attorney General David Hartnagel argued that under state law, criminal records can be expunged only after a defendant receives a judgment in his favor against the state in his erroneous conviction cases. Baran reached a $400,000 settlement with the state, but the state denied liability in that settlement."
  20. ↑ Lindsay, Dick (2014-09-03). "Bernard Baran, cleared of child molestation charges, dead at 49". Berkshire Eagle. Retrieved 2014-09-07.

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