At the Boston Globe, defense attorney and civil libertarian Harvey Silverglate calls for justice in the sad case of Bernard Baran, a gay man who served 25 years behind bars after he was convicted of sexually abusing children at the day-care center where he worked. Baran’s conviction came at the head-end of a wave of national hysteria about sex abuse that would drag on for more than a decade and result in dozens of innocent people sent to prison, from Massachusetts to California. Baran said he was raped more than 30 times in prison. He was finally released from prison in 2006 after a state appeals court overturned his conviction. In 2009, Berkshire County District Attorney David Capeless finally dropped all of the charges. Baran didn’t have much time to enjoy his freedom. He died in September at age 49.

The only real evidence against Baran was a series of interviews investigators conducted with the allegedly abused children. But as happened with so many other sex abuse cases of the era, the allegations were later shown to have come from the interviewers, not from the children. Silverglate, who was one of Baran’s appellate attorneys, explains:

In 1984, Baran was an out-of-the-closet 19-year-old who worked at the Early Childhood Development Center in Pittsfield when a parent-couple complained about having a homosexual taking care of their child. Within a month, as management discussed what to do with the “Bernie problem,” the parents accused Baran of molesting their boy. Baran proved an easy target for accusations of pedophilia. Soon abuse allegations spread to other families.
Tellingly, Baran’s charges solidified only after law enforcement officers and social workers “interviewed” (or coached) the children. Video recordings of these sessions show the children initially denied wrongdoing on Baran’s part. However, the children eventually capitulated to the suggestive questioning that used anatomically correct dolls and other now-discredited techniques. The children ultimately offered statements that, when considered in isolation, proved sufficient to indict Baran.
The trial jury never saw these interview tapes, edited or unedited. Instead, the jurors heard the children testify in person, reciting their by-then-practiced abuse narratives. The unedited tapes include numerous moments that would have dramatically impeached their testimony, including segments where the children repeatedly deny Baran harmed them.

In other sex abuse cases from the era, similar interviews with children produced unimaginably gruesome allegations, including orgies that included children and animals, adults sodomizing children with knives, and ritual sacrifice. These allegations led to convictions, despite the fact that there were no bodies of the allegedly murdered children and no physical signs of abuse on the children making the accusations. Most of those convictions have since been overturned, but for the most part, the law enforcement officials responsible for them were not only never disciplined, many were reelected or moved on to higher office, sometimes because of the notoriety they gained from those cases, which tended to be high-profile affairs. Examples include former attorney general Janet Reno, former Kern County, Calif., district attorney Ed Jagels, former Massachusetts attorney general Scott Harshbarger and his successor, current Massachusetts gubernatorial candidate Martha Coakley. (Coakley didn’t prosecute the controversial case Harshbarger is known for, but she did fight to preserve the convictions. She also has a history of other questionably aggressive prosecutions and opposition to criminal justice reform.)

And then there is Daniel Ford, one of the two prosecutors who tried Bernard Baran. In late 2003, the other prosecutor in the case, former Berkshire County district attorney Gerard Downing, had a heart attack and died while shoveling snow. For years, Baran’s appellate attorneys had been asking Downing to turn over the interview tapes. He said he couldn’t find them. (He isn’t the only prosecutor who has had problems locating tapes of interviews with children that produced abuse charges, but later proved exculpatory.) After Downing died, Capeless found and turned over the tapes in a matter of months. Had Downing not had a heart attack, Baran could well have died in prison.

Through his attorney, Ford has insisted that he turned the tapes over to Baran’s attorney, who for whatever reason refused to use them in Baran’s defense. But as Silverglate points out, while the Massachusetts Court of Appeals ruling to overturn Baran’s conviction did fault Baran’s attorney, it also noted that “while the record does not settle the question of whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention.”

Even if Ford did turn the tapes over, there remains the question of why he and Downing proceeded with prosecuting Baran, knowing that the only evidence against him was based on allegations coached from children who initially repeatedly denied Baran had done anything wrong. The answer may lie in another disturbing allegation against Ford that I detailed in a 2009 article about the case:

An affidavit signed by Baran’s boyfriend at the time also paints Ford as a homophobe. According to the document, the D.A. spent an inordinate amount of time asking Baran’s boyfriend about his own sex life, employing variations of [a slur against gays] and a mocking, drawn-out pronunciation of homosexual. The affidavit alleges that in the ensuing months, Baran’s boyfriend was pulled over by police officers and further harassed on a daily basis, and that Ford told him, illegally, that if he spoke with Baran or Baran’s defense attorney [about their conversations], he would be arrested.

Of course, these were allegations made by someone with a vested interest in Baran’s innocence. But the affidavit jibes with the homophobic atmosphere that permeated the trial, and with Ford’s behavior in the courtroom.

According to court documents, the first parents to come forward with accusations against Baran in September 1984 had just days earlier registered a complaint with the center upon noticing Baran was “queer” by the way he walked and talked. The boy’s mother, who thought gays “shouldn’t be allowed out in public” much less permitted to work at daycare centers, said that she “didn’t want no [slur]” watching her son.
When that child later tested positive for gonorrhea of the throat, Ford used the test against Baran at trial, even though A) the child never accused Baran of forcing him to perform oral sex, B) the child, in fact, specifically denied having sexual contact with Baran on the witness stand, C) Baran tested negative for gonorrhea, D) the boy had told his mother two months prior that his stepfather had orally raped him, and E) on the very day Baran was convicted, charges against the stepfather were turned over to the D.A.’s office for possible prosecution. Baran’s counsel was never informed of the allegation against the stepfather. Addressing the gonorrhea issue in his closing arguments, Ford implied that Baran’s “lifestyle” made it probable that he contracted gonorrhea at other times and knew how to quickly eradicate it to cover his tracks.
In his closing argment, Ford likened Baran’s job at a daycare center to a “chocoholic in a candy store,” and hypothesized that in the “five or ten minutes” he was able to be alone with a child without being seen by other staff or children, Baran “could have sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite.”

The accusations against Baran came just as the accusations in the notorious McMartin preschool and Fells Acres day-care cases were also making headlines. In overturning Baran’s conviction, the appeals court added that the trial was rife with “speculative, stereotypical, and deeply insidious links between homosexuality, gonorrhea, and child molestation.”

Yet as Baran was reportedly getting repeatedly sexually assaulted in prison, Downing was getting reelected and Ford was getting promoted. Just a few years after Baran’s conviction, Ford was appointed to the Massachusetts Superior Court, where he presides over criminal cases. He has also served on a committee that determines state rules for criminal procedure. As Silverglate points out, not only has Ford never been disciplined, he has never been publicly investigated, nor has the state considered the reforms that could cut down on future wrongful convictions.

Ford’s lawyer . . . claims that when the Appeals Court opinion was published, the Office of Bar Counsel of the state’s lawyer disciplinary body opened an “independent inquiry” but then “took no action.” This inquiry, as all such proceedings, was confidential and remains closed.
This judicial half-measure freed Baran while avoiding a more searching inquiry into possible prosecutorial misconduct that might (or might not) have disgraced a sitting judge, tarnished the reputation of a deceased district attorney, and put in doubt the judgment of the present district attorney for pursuing years of litigation, during much of which Baran rotted in prison.
Massachusetts still has not reformed its discovery rules to prevent convictions achieved through suppression of exculpatory evidence. Our justice system cannot rely on what is effectively a prosecutor’s honor code. An “open file discovery” policy — in which prosecutors share all files with defense counsel — must be implemented. Furthermore, prosecutors who commit these violations should pay for, rather than benefit from, their actions.
Judge Ford has not been publicly investigated, much less removed from the bench for leading an unjust prosecution that ruined a young, innocent man’s life. The Commonwealth might begin to rectify this systemic failing by holding a searching and public investigation to resolve the question posed by the Appeals Court. Both Judge Ford and the memory of Bernard Baran deserve that this matter be resolved, once and for all, in a public forum.

State bars are notoriously deferential to prosecutors and rarely hold them accountable. A regular commenter on my old blog once suggested that for a prosecutor, convicting an innocent person of a crime that carries a sentence of a decade or more in prison ought to considered akin to a surgeon who amputates the wrong limb. It may well be an honest mistake. And perhaps it shouldn’t be treated as a crime. But it certainly calls into question the attorney’s credibility and competence as a prosecutor, to the point where he or she ought to be removed from office. At the very least, it doesn’t seem like too much to ask that sending an innocent man to jail for 25 years ought to disqualify a prosecutor from serving as a judge.