Baran Appeals Court Hearing Report

February 12, 2008

This morning the Appeals Court of Massachusetts held a hearing in the Baran case. In June of 2006, Judge Francis Fecteau ordered a new trial for Bernard Baran. Berkshire County DA David Capeless has appealed that decision. At today’s session, oral arguments for and against Capeless’s appeal were presented before a three-judge panel…

The hearing took place in Boston in Courtroom Three of the John Adams Courthouse. It began around 11 a.m. The courtroom was filled with Baran supporters. I believe a number who came did not get in.

The three judges were Fernande R.V. Duffly, Barbara A. Lenk, and Mark V. Green. Both sides were aggressively questioned by the panel. I have no prediction about what their decision will be. But I am cautiously optimistic.

DA Capeless began by saying that “23 years ago five young children testified that a 19-year-old daycare worker,” Bernard Baran, had sexually abused them, and that their parents had testified about their behavior, implying that their behavior was indicative of sexual abuse. He said that corroborative medical evidence had been presented by a doctor and that the daycare staff had testified about “accessibility of the children and opportunities for abuse.” He said that there was a sixth child, who had tested positive for gonorrhea, whose case had been thrown out.

Capeless stated that the verdict had been upheld on direct appeal. He said that over twenty years later a judge who had not been the trial judge [Judge Fecteau] had ordered a new trial based on ineffective assistance of counsel. Capeless called Fecteau’s ruling “flawed,” citing his “speculation about facts not in the record.”

At this point Judge Duffly intervened, and basically told Capeless to cut to the chase. She wanted him to talk about the videotapes.

Capeless urged the judges to read the reports of prior disclosure before viewing the tapes. He said that the tapes were not intended to be forensic interviews. He argued that Fecteau had ignored what the tapes really were. Capeless said that “edited” versions of the videotapes were shown to the Grand Jury.

Judge Duffly stated that all of these prior disclosures were made by adults, summarizing what the children had said. She pointed out that the tapes depict the “first time we see a child’s actual words.”

Judge Lenk asked, “Does it matter what the purpose of the tapes was?” The crucial question is, “Were children coached?” Fecteau believed that the tapes show coaching and adults cajoling children into making accusations.

Capeless repeated his oft-made, highly fallacious argument: The tapes don’t matter because the first interviews are the most important and the tapes don’t show the first interviews.

Judge Duffly astutely asked, “How does it happen that there was no ambiguity in the earlier statements?” Her point was that overtime we would expect the children’s statements to become more consistent, not less. Duffly also asked, “What about the points where the children denied?”

Judge Lenk pointed out that the law has changed significantly in the last 20 years and that much has since been learned about the psychology of children. She asked, “What are we to do about changes in the law?”She also pointed out that the use of anatomically correct dolls is now very much frowned upon.

Judge Green noted that if you remove the credibility of the children, there is no independent forensic evidence. Capeless claimed that there was the children’s behavior and that there was corroborating testimony. Green pointed out that the corroborating testimony just brought us back to the credibility problem.

[Note: in my opinion, the issue is not credibility but reliability. Legally, these are two quite different issues. It bothers me that even judges confuse them.]

The oral arguments for the Baran team were presented by Eric Tennen, who did a great deal of the work on the new-trial motion.

Eric began by pointing out that while a lot has changed in the past 20 years, one important thing that has not changed: a defendant’s right to effective counsel, which Bernard Baran did not have.

The judges very quickly brought the focus back to the videotapes.

Capeless has argued that the behavior of the children on the videotapes was consistent with their testimony in court. In court, they also denied abuse, were inconsistent, etc. But the jury believed the accusations anyway. Since the jury was stupid enough to believe the ridiculous testimony of these children, would it have mattered if they had seen the videotapes? [Note: this is not quite how the argument was stated. But it is what it boils down to.]

This is a fair and important question. And I wish Eric had been more forceful in responding to it.

He did state that the prosecutor had explained the weakness of the children’s testimony by their being intimidated by being in court and in the presence of Baran. The tapes would have shown the same behavior in a relaxed setting in which Baran was not present.

Judge Green suggested that a more important question might have been the effectiveness of the cross-examination of these children by Baran’s attorney.

Eric agreed that this was a valid issue, but that he thought the tapes were still most important. The interrogators’ behavior on the tape went a lot further that what happened at trial.

Baran’s lawyers have also argued that Baran’s attorney was ineffective in not hiring an expert on the reliability and credibility of children’s testimony.

Judge Lenk then questioned whether an expert could have been that helpful, given that much less was known at the time about the dangers of suggestive interviewing questions.

Eric then rightly pointed out that this question had already been decided in the Amirault case, where the Massachusetts Supreme Judicial Court had ruled that in the early 80s it was known that suggestive interviewing of children produces unreliable results.

This was, of course, a stupid, immoral, cowardly, and politically motivated ruling on the part of the Court. Nevertheless, it is a binding precedent on the Appeals Court. If the SJC says that the science existed in the early 80s, then Baran’s attorney should have hired an expert.

Eric made the point that the prosecutor’s behavior at trial was nowhere as egregious as the behavior shown on the tapes.

Judge Lenk asked whether the effect of suggestive interviewing is cumulative. “Does it build?” she asked. Is it “people-pleasing behavior learned by the children?”

The lawyers held a very brief post mortem for Baran’s supporters. John Swomley felt good about the fact that the judges very pointedly questioned DA Capeless. As for the importance of the tapes, he felt that two of the judges got it, but that he was concerned that there might be some skepticism in the mind of Judge Green. He said that the argument would be tightened in a letter to the court.

Harvey Silverglate said he thought that the single most important question asked was the one that Eric had answered by referring to the Amirault decision.

At this time, none of the judges have seen the videotapes or read the transcripts of the hearings on the new-trial motions. All they have read is Fecteau’s decision, Capeless’s appeal, and Baran’s response. The Court will not hand down a ruling until all of this material has been reviewed.

Let us hope that these three judges see in those tapes what every rational observer thus far has seen.

-Bob Chatelle

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