Bernard J. Baran and Berkshire District Attorney David F. Capeless

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Pittsfield, Massachusetts
"Appeal set for Baran ruling: Berkshire District Attorney David F. Capeless says the judge who overturned the 1985 conviction relied on faulty facts"
By Jack Dew, Berkshire Eagle Staff
Tuesday, January 22, 2008

PITTSFIELD — Bernard J. Baran, who has been free on bond since a Superior Court judge overturned his child molestation conviction in June 2006, will have another day in court next month when the Appeals Court will hear oral arguments on his case.

The state Appeals Court has scheduled a hearing for 9:30 a.m. Tuesday, Feb. 12, in Boston. The appeal was brought by Berkshire District Attorney David F. Capeless, who is arguing that the Superior Court judge who overturned Baran's conviction exceeded his judicial authority and relied on faulty facts in rendering his judgment.

Baran was 18 years old when he was convicted in January 1985 of molesting five children at the Early Childhood Development Center in Pittsfield. He was sentenced to life in prison.

One of Baran's attorneys, John Swomley, said yesterday that Baran is eager to have his day in court, and that the past 18 months have been difficult for his client, who is free on $50,000 bond and being monitored with a global positioning system.

"We are all enthusiastic about being able to turn this page," Swomley said in a telephone interview yesterday. "In the year since Mr. Baran's release, I think everyone on this side had hoped that the DA's office would just do the right thing of its own accord ... but we are having to fight to the bitter end."

In 2006, Superior Court Judge Francis R. Fecteau ruled that Bar an's original attorney, Leonard Conway, was incompetent, rendering Baran's trial unfair.

Fecteau's ruling hinged on Conway's failure to investigate the charges against Baran or to demand unedited copies of interviews with the alleged victims. Those tapes — which surfaced in 2004 — show the children telling their questioners that Baran molested them, that no one molested them or that someone else entirely had molested them.

Had Baran's attorney seen the tapes, Fecteau concluded, he could more easily have cast doubt on the reliability of the children's testimony that was the state's sole evidence against Baran.

In his appeal, Capeless argues the videotapes are not as significant as Fecteau concluded. The interviews were conducted weeks after the children first reported the abuse and were only shown to the grand jury.

In response, Baran's attorneys — Swomley, Eric Tennen and Harvey Silverglate, all of Boston — have argued that Fecteau's ruling was sound and that the videotapes were crucial. Because Baran's attorney never asked for and was never given the tapes, they argued, he was denied a forceful way to challenge the testimony of the children.

The Appeals Court will hear oral arguments Feb. 12 and then issue its ruling in writing at a later date. If the court upholds Fecteau's decision, Baran will remain free and Capeless will have to decide whether to pursue the case before the Supreme Judicial Court or try to prosecute Baran anew with 22-year-old evidence.

If the court reverses Fecteau's opinion, Baran's guilty verdict would be reinstated, and he would be returned to state prison.

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To reach Jack Dew: jdew@berkshireeagle.com, (413) 496-6241

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"Baran case, continued"
The Berkshire Eagle - Editorial
Wednesday, January 23, 2008

It is difficult to imagine why a state appeals court would negate the decision of a Superior Court judge to overturn the child molestation conviction of Bernard Baran. After nearly a year's deliberation, Worcester Superior Court Judge Francis R. Fecteau exposed the many flaws in Mr. Baran's 1985 trial, and while the judge overturned the conviction on the grounds that the incompetence of Mr. Baran's attorney deprived him of a fair trial, he made it clear that the defense's failure came in the context of a flawed prosecution. Most significantly, Mr. Baran did not have access to taped interviews of the alleged victims at the Early Childhood Development Center that would have severely damaged the case of the prosecution. The appeal brought by Berkshire District Attorney David Capeless will be heard on February 12, about 11/2 years after Mr. Baran's conviction was overturned. The wheels of justice have ground exceedingly slowly in the Baran case and we hope the court will not dally in making its decision.

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"Judges ponder Baran ruling"
By Jack Dew, Berkshire Eagle Staff
Wednesday, February 13, 2008

BOSTON — A three-judge panel yesterday probed the value of videotaped interviews with children who claimed Bernard J. Baran molested them at a Pittsfield day care center in 1984.

The tapes played a crucial role in a Superior Court Francis R. Fecteau's decision in June 2006 to overturn Baran's conviction and order a new trial. The three appellate judges — Barbara Lenk, Fernande Duffly and Mark Green — heard oral arguments yesterday in the Berkshire District Attorney's appeal of that ruling, which let Baran go free after serving 21 years of a life prison sentence.

The three judges will now consider the evidence and the arguments and decide whether to let Fecteau's ruling stand or return Baran to prison.

Baran was convicted in 1985 of molesting five young children at the Early Childhood Development Center in Pittsfield.

In 2004, his new legal team — John Swomley, Eric Tennen and Harvey Silverglate, all of Boston — argued that the original attorney, Leonard Conway, mounted an incompetent defense, failing to get copies of the unedited videotapes that would have allowed him to impeach the credibility of the witnesses.

The defense argued that the tapes showed the questioners leading the children through their answers, coaxing them to describe sexual abuse. Sometimes the interrogators offered rewards if the children said Baran had abused them, at others they ignored the children's denials.

The district attorney's office edited those tapes to include only the inculpatory statements. These shortened versions were used to persuade a grand jury to indict Baran.

Capeless appealed Fecteau's ruling and yesterday stressed that the tapes do not bear the significance accorded them by the Superior Court judge. Rather, he said, they were made after the alleged victims had told authorities of the abuse, produced solely to save the children the pain of testifying before a grand jury.

Rather than a linchpin in the state's case, Capeless said, the tapes were irrelevant, a new technique used by the district attorney's office to ease the burden on the children.

The three judges attacked Capeless' reasoning and, in question after question, poked at the tapes' significance.

Capeless said they should only be viewed in the context of all the evidence: The parents had already observed behavioral changes in the children, and the children had given several statements to police, social workers and prosecutors.

"(Fecteau) misunderstood or refused to accept what these tapes actually were," Capeless said. "They were not forensic evidence."

"Do you say that Judge Fecteau's findings as to the tapes were not supported by what he heard?" Lenk asked.

"Yes," Capeless replied. "To the extent that he did not understand what (the tapes) really were."

Green questioned whether there was any record of the manner in which the earlier interviews were conducted. Capeless said no, and Green asked whether the tapes, then, might "operate as a very transparent mechanism to view, on at least one occasion, the demeanor and behavior" of the children during questioning.

Capeless said it was mere "speculation" that the taped interviews resembled those conducted earlier, and said the tapes represent only a "crude attempt" to film the interviews.

He acknowledged that the children's statements were inconsistent, to which Duffly asked, "How does that help you?

"How can it be that at this stage, four or five times after apparently consistent statements that (Baran) did this to me, we are now seeing some ambiguity, some suggestion that no, he didn't?" she said.

"It is speculation that the tapes show what must have happened before," Capeless said. "But you can't make that leap. Don't speculate about what was and was not there."

He later added: "Twenty years explains the absence of record evidence, but it does not excuse (the defense) of its burden of proof."

When Duffly asked, "What do we do with (the children's) statements that (Baran) didn't do this?"

Capeless replied, "That's for a jury to decide."

Tennen — representing Baran — argued that the tapes were crucial because they would have given Baran his only real defense: That the children were telling false stories of abuse because they had been coached to do so, led into fabrications by poor interviewing techniques.

"The defendant is entitled to effective assistance of counsel. No matter how you slice this case ... what we now know is that these unedited tapes have a tremendous value that wasn't used," Tennen said.

The judges asked several times whether the tapes were really as significant as the defense has claimed. Green questioned whether they show anything the jury didn't otherwise see when the children took the stand at trial.

Tennen argued that the tapes are a more drawn-out version of the children's trial testimony and carry the added import of revealing flawed interview techniques. Not only do the children have a harder time answering the questions and take longer to do so, but the interviewers are seen prodding the children, and offering rewards if they tell of the abuse, all of which could have a "cumulative effect," teaching the children how to answer certain questions then and later.

"It was just repeated, over and over, non-acceptance of (the children's) denial," he said, and the behavior displayed at trial was "not as egregious as what was done on the tapes."

The judges also explored the challenges of revisiting a 20-year-old case when society's knowledge of interviewing techniques has changed dramatically since.

For example, the use of anatomically correct dolls was standard practice then, but is scorned now for leading children to make false statements. Thus, the judges pondered, how do we know the difference between ineffective counsel and general ignorance?

"Obviously, we have evolved to understand better why (false statements) would happen, but some of this was known at the time," Tennen replied, and the Supreme Judicial Court has explored this territory, concluding that several key elements were known well enough in the mid-1980s.

The judges said they plan to review the voluminous record of the case, including the videotapes, the original trial transcript and the transcript of Fecteau's evidentiary hearings. That means it will likely be months before they issue a ruling.

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The Berkshire Eagle
Forum & Polls: Judges ponder Baran ruling
A three-judge panel yesterday probed the value of videotaped interviews with children who claimed Bernard J. Baran molested them at a Pittsfield day care center in 1984.

Read All 9 Comments
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I can remember when this case was taking place and was thinking this young man was not guilty.They don't mention it in this article but, a couple of the children tested positive for a STD and when Baran was tested he did not have one. The D.A. at the time is now a Judge and for some reason I feel that Baron's defense team is in for a rough road. We have to remember that at the time this took place in Berkshire County that justice was spelled JustUs.
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Greg Roach
North Adams, MA
Baran would never have been brought to trial in 2008 based upon the type of evidence that was used 20+ years ago. I'm not quite sure why DA Capeless won't let this one go, but it seems highly likely the Court of Appeals will reject his arguments.
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Jumping to Conclusions
Let's try keep this in its proper perspective, we, the public, did not witness the actual trial or any of its (non)evidentiary proceedings. To conclude, based on this short story, that Mr. Baran is not guilty or to some degree, innocent-is pushing the envelope. Like the story reports, the Mass. Appeals Court is reviewing the voluminous record (the operatie word being voluminous).

Let's allow the judicial system (trained lawyers and judges) to render an unbiased decision in a timely and orderly manner.

We don't know what evidence weighted more or less in the jury's verdict of "guilty." This is what the appeals court is doing, second guessing jury deliberations. I trust the judges, however, will find what they're searching for in the voluminous record!

BRIAN C. MARQUIS
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Butchie

Thanks capeless for wasting taxpayer money. 21 years not long enough? I hope he drops a lawsuit aginst the Berkshier county D.A. office. I also think if are fear less D.A. loses, he should repay the taxpayer out of his own pocket.
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FJoe
Princeton, NJ
Capeless appears to be a politically motivated self serving DA - I am not sure why people keep electing him. He goes after the big headlines, kids selling pot in school zone, this sex abuse retrial, while Pittsfield deteriotes further into serious crime. I think it is time to replace all the good old boys in Berkshire County "just us" system - sherrif and all.
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SAL
Asheville, NC
or maybe they don't have anything else to do this year-- 30 years ago & nobody had paid any attention??
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Jumping to Conclusions
Butchie wrote:
Thanks capeless for wasting taxpayer money. 21 years not long enough? I hope he drops a lawsuit aginst the Berkshier county D.A. office. I also think if are fear less D.A. loses, he should repay the taxpayer out of his own pocket.
I think the Berkshire County District Attorney is doing exactely what Berkshire County taxpayers require him to do: protect society's best interst when its citizens are believed to have been criminally violated.

What would we think of him if he just decided to forgo any further prosecution or exhaust all available legal remedies of relief, or, moreover, properly discharge the duties of his office? Let's leave the prosecutorial prerogatives where they belong-with David Capeless and his very competent Mass. State Police investigators!
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Butchie, West Pittsfield
Why dont you ask him to solve the murder in Stockbridge. What about the guy who raped the girl on the side of the Mass Pike???? What about the kid who was found dead on October Mt. Looks like to me there not to competent. Wasting taxpayers money on a guy who should of never been in jail.
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Jumping to Conclusions
Greg Roach wrote:
Baran would never have been brought to trial in 2008 based upon the type of evidence that was used 20+ years ago. I'm not quite sure why DA Capeless won't let this one go, but it seems highly likely the Court of Appeals will reject his arguments.
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In addition to protecting society's best interest, the Berkshire County District Attorney upholds the legal concept that "the function of the the criminal law is to protect the state's interest in proper behviour by all citizens." This includes Mr. Baran, regardless how many years have passed by!
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"Make Baran case history"
The Berkshire Eagle - Editorial
Thursday, February 14, 2008

After 24 years and any number of twists and turns, it is impossible to predict what will happen next in the case of Bernard Baran, who is currently free after serving 21 years of a life prison sentence for allegedly molesting children at a Pittsfield day care center. The hearing before a three-judge panel in Boston Tuesday, however, unearthed no discernible reason why the decision of Superior Court Judge Francis R. Fecteau to overturn Mr. Baran's conviction should not stand.

Tuesday's hearing focused largely on the videotaped interviews with children who claim they were molested by Mr. Baran, who is gay, in 1984, tapes the Baran defense was denied at the trial that resulted in his conviction. Berkshire County District Attorney David Capeless argued that the tapes were nothing more than an effort by the office at that time to ease the strain on the children facing testimony before a grand jury and were not relevant to the trial, but Judge Fecteau saw them as instrumental to the defense, and they clearly were.

It has been acknowledged that the children's testimony was inconsistent in statements given to police, social workers and prosecutors. The district attorney's office edited the tapes to include only statements they found beneficial. Since-discredited techniques were used to coach the children in their testimony, techniques that would stand out dramatically on tape. Any of these reasons were sufficient to make the tapes available to the defense. Any of these reasons is sufficient to support Judge Fecteau's decision to overturn the conviction.

The Baran case came at a time when other child abuse trials, including the far more prominent case of alleged abuse at the Fells Acre Day Care Center in Malden, contributed to a public hysteria recalling the Salem witchcraft trials. It was a time when homosexual and pedophile were practically synonyms, and gay predators were popular bogeymen. Outrageous sexual abuse "puppet shows" were employed by psychologists to dislodge "repressed memories," from children, a since-abandoned technique that was found more likely to introduce false memories. Mercifully, that era is for the most part behind us, those cases all but forgotten. The Baran case, however, still walks the earth, an anachronism from a terrible time yet to be consigned to history where it belongs.

Judge Fecteau had it right when he tossed out the case because Mr. Baran received an inadequate defense. That defense, however, came in the context of a poorly brought prosecution that denied Mr. Baran key videotaped evidence and was conducted in a climate of fear-based paranoia that tainted all pretext of judicial objectivity. Not allowed to heal, the case remains a needlessly open wound on the face of Berkshire County judicial history.

We hope the three judges will support Judge Fecteau's wise ruling. If that is the case, we hope Mr. Capeless will decline to pursue a new trial that will benefit no one, including the five now adult children who were allegedly abused, three of whom have long since recanted their testimony against Mr. Baran. The district attorney's office has far more pressing duties to pursue. Mr. Baran has suffered enough.

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Valentine's Day 2008
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lack of justice, North Adams, MA
The laws and rights of men
should not be corrupted by the
opinions and prejudices of
those in power

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obviouslynotaparent, Dade City, FL

The person that wrote this editorial obvioulsy has not done their homework on this case....we are only focusing on some video that is coming into question but actual verbal complaints and testimony from the parents and children was the cornerstone for this conviction. Mr Baron was convicted in a court of his peers beyond a reasonable doubt and should serve his full sentance.....so in this persons opinion...HE HAS NOT SUFFERED ENOUGH!!! SEND HIM BACK TO JAIL WHERE HE BELONGS!!!

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Jumping to Conclusions

Again, until we, the general public, have had the unique opportunity to review the "voluminous" record, casting apersions on the Office of the Berkshire County Distric Attorney, the interviewing psychologists, and social workers, is premature and serves no legitmate purpose other than to inflame public emotions! The Eagle, is seems, payed close attention to the appeals hearing, but, I suspect, have neglected to review the official court record. Much has been made of those now controversial tapes, but nobody but officials close to the case have actually seen them. Can the Eagle make assertions based on something they have yet viewed? Apparently. When is The Eagle planning to interview Bernard Baran's former counsel? Let's find out what he has to say, in his own defense.

The law empowers Bershire County District Attorney David Capeless to aggressively pursue any avenue of relief or oppose any motion that is within his purview. One can only sense the makings of a double-edged sword here-on one side Mr. Capless is irresponsible in pursuing avenues of legal empowerment and of course the counterproposition gives rise to his failure to discharge the duties of his office. Clearly, The Eagle, in its imfamous wisdom, would undoubtably attack him for not doing enough to ensure public safety.

At the end of the day, only three out of five have recanted their prior testimonies,(so say The Eagle) for reasons they hold dear to themselves. To use the recantations as a threshold for dismissal is a legal issue, not an Editorial opinion. And since the recantations are not issues pending before the appeals court, they should not be used to sell papers. But, the fact that only three recanted is still enough to seek a re-trial if the appeals court finds in Mr. Capeless's favor. The controlling Mass. statutes does not restrict prosecution to multiple victims. In case you missed law school, the statute addresses a victim or victims.

Thus if the Mass. Appeals Court does find in Mr. Capeless's favor, I only this negative publicity has not deterred him from seking a re-trial. It takes only one (1) victim to agree to testify against Mr. Baran.

BRIAN C. MARQUIS

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cynic, North Adams, MA

As I recall, there once was a bit more
credulance to reported news and legal and political opinions and rulings...

Nowadays, when I read of some of the
Constitutional issues, ruled on by The Supreme Court, various Official Statements made by The Wite House and The Congress....

I sadly shake my head in disbelief

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News Article:
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"Pittsfield Puts Focus on Child Abuse"
By Jen Thomas -iBerkshires Staff- April 28, 2008

PITTSFIELD — Seventy-seven pairs of New Balance sneakers lined the steps of City Hall on Friday afternoon, a visual indicator of the average number of children confirmed as abused or neglected in the county in one month.

Local lawmakers joined representatives from area child abuse prevention agencies — including Child Care of the Berkshires and the Massachusetts Children's Trust Fund — in recognizing April as Child Abuse Prevention Month.

"Seventy-seven reported cases on a monthly basis is 924 incidents of reports of child abuse in Berkshire County in one year. And those statistics mean lives of young children, affected each and every day in our community," said Mayor James Ruberto.

Called "Steps of Hope," the ceremony sought to bring public awareness to a problem that is the leading cause of death for children under age 4 nationwide and to emphasize that child abuse and neglect can be prevented.

"Today is a day of hope. According to the Department of Social Services, there are approximately 35,000 cases annually here in Massachusetts of child abuse and neglect. Now, according to the United States Department of Health and Human Services, that puts Massachusetts No. 3 in the nation for confirmed cases, which would be twice the average. Where is the hope in that?" said District Attorney David E. Capeless.

The state also has the fourth highest rate of reported child abuse and neglect. According to Capeless, these high statistics show that the state has put this issue as a priority and set up a system to not only hear reports but to investigate them.

"We have here a very strong system for people to report and for us to investigate and also to prosecute cases where there has been child abuse," said Capeless. "There is the hope for us because we have a system here."

Last year, 87 pairs of shoes — 10 more than this year — lined the stairs for the "Steps of Hope" ceremony. That reduction is an accomplishment state Rep. Daniel Bosley, D-North Adams, hopes can be repeated next year.

"It is very encouraging that we have 10 less pairs of shoes here in Berkshire County than we did last year. Maybe we can reduce it by 10 next year, maybe by more every year," said Bosley.

Eloise Stevens, the executive director of Berkshire County Head Start, called for more both personal and community support in helping parents care for their children.

"We must listen to children when they tell us they've been hurt by someone. We must support parents in their difficult role and we must do what we have to until there are no more shoes on the steps," Stevens said.

During the ceremony, several young children stormed the steps, playing with the balloons near the podium or posing for pictures.

"This is the perfect example of how difficult it is to be a parent," joked Suzin Bartley, the executive director of CTF and the day's unofficial master of ceremonies.

Dianna Goldmann, 20, of North Adams, spoke to the audience about the fear she had about being a teenaged mother when her son Troy, now 2, was born.

"I didn't know anything about babies or being a parent," Goldmann said.

Healthy Families, an operation of Child Care of the Berkshires, got her through the tough times, Goldmann said, with their at-home visits and their around-the-clock support system.

"It's just a lot of support for a young mom. I couldn't live without having that person there to ask questions of," said Goldmann.

For Bosley, ensuring that the county's family support programs continue to help change lives is a priority.

"These programs are very near and dear to those of us in the Legislature because it goes back to the core functions of what government is supposed to do for people," said Bosley.

Bosley quoted former Vice President Hubert Humphrey, who said "The moral test of a government is how it treats those who are at the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadow of life, the sick, the needy, and the handicapped."

"Children are the core function of government," said Bosley.

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Berkshire District Attorney David E. Capeless talks about child-abuse prevention.
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Some 77 sneakers, a visual representation of the number of child abuse reports each month, cover the City Hall steps.
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Dianna Goldmann and son Troy.
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"Murray Leads Conversation on Violence and Abuse"
By Jen Thomas - May 16, 2008 - iBerkshires Staff

PITTSFIELD — During what he hopes will be the first of many roundtable discussions statewide, Lt. Gov. Timothy Murray said he was committed to taking a stand against domestic violence and sexual abuse.

On Thursday, Murray met with representatives from several local social service agencies — and with District Attorney David F. Capeless — at Berkshire County Kids' Place to get feedback on the needs of regional agencies who work on these issues.

As the chairman of the recently formed Inter-Agency Council on Domestic Violence and Sexual Abuse, Murray is looking to connect with organizations throughout the state "to get an idea of what works and what doesn't."

"We're very concerned about the trend and the numbers we're seeing when it comes to domestic violence and sexual abuse," Murray said. "In October, the governor formed the council and now, we're trying to get an idea of what's out there."

Representatives from Kids' Place, the Berkshire Violence Prevention Center, the Elizabeth Freeman Center and the Sexual Assault Intervention Network participated in the discussion with Murray, citing funding, transportation woes and a lack of resources and training as major areas of concern.

"A lot of money doesn't come out this far and we're struggling with that," said Dana Brandon, the executive director of Kids' Place.

Murray asked the group of about a dozen what they thought would be the best use of the state's attention and any additional funds.

"Do we just give everyone a little bit more or do we target best practices? Given what we're facing with a difficult fiscal situation, this is something we like to prioritize," he said.

While City Council Chairman and a member of the Kids' Place board of directors Gerald Lee said nonprofits deserve the bulk of the funds, several others noted that extra money should go to who can utilize it the best.

"It's not simply a matter of what agency gets funding; it's how they use the money," said Capeless. "You can have all the resources in the world but we need programs that will get to people immediately. That's critical."

According to Capeless, finding ways to protect the victim in rural communities is getting more and more difficult, a sentiment many in the room echoed.

"It's become almost impossible to find a resolution that's not incarceration,” Capeless said. "People are fighting against the government because it looks like we're the bad guy in many of these cases. It's almost like the government is in a domestic violence relationship with its citizens."

Because police are the typically the first people at the scene when a domestic violence call is made, many of the attendees recommended training for officers in the ways to protect battered women and children and open lines of communication with the agencies.

Still another issue plaguing the Berkshires is a severe need for reaching some of the smaller towns.

"In this region, it's unbelievable trying to get transportation. It's an overarching issue for all the agencies we collaborate with," said Brandon. "Transportation is a major barrier for anyone in an abusive relationship if they can't get somewhere where they can get help."

After the hourlong discussion, Murray said the meeting of the minds would help him in moving forward with his work on the council.

"With this environment of collaboration, communication and efficiency, we'll have a better chance for success. We want to emphasize working together to allow these interventions to happen sooner. We have to break the cycle of violence," Murray said.
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Lt. Gov. Timothy Murray
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www.iberkshires.com/story/27139/Murray-Leads-Conversation-on-Violence-and-Abuse.html
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"Law aids in fight against child abusers"
The Berkshire Eagle - Letters
Tuesday, June 03, 2008

In the May 22 editorial, "Debatable sentence law," The Berkshire Eagle opined that recently introduced legislation, "An Act to Further Protect Children," would not protect children in a "meaningful way" by creating certain minimum mandatory sentences for sex offenders. As experienced prosecutors, we know firsthand the devastating effects of sexual abuse of children, as well as the challenges in prosecuting sexual predators.

This proposed legislation would not "tie the hands of judges," as the Eagle would contend. Rather, it provides prosecutors with the tools they need to hold sex offenders accountable for their despicable actions, while also allowing prosecutors the discretion and flexibility they need to most appropriately charge those who prey on children. The legislation would create minimum mandatory sentences that range from 10-15 years in prison for the most heinous crimes committed against children, such as those committed in the course of a felony or with a dangerous weapon, or by a person in a "position of trust or authority," such as a teacher, coach, or clergy member.

Such expanded tools and charging options would in fact increase the likelihood of obtaining a conviction. We believe that this legislation provides for the best interest of children and public safety, in contrast to other proposals which child abuse prosecutors know would do more harm than good and in fact impede the work they do.

MARTHA COAKLEY
Boston, Massachusetts
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DAVID CAPELESS
Pittsfield, Massachusetts

Martha Coakley is Massachusetts attorney general. David Capeless is Berkshire district attorney.

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"Legislators pass bill to boost rules against child abuse"
By Maddie Hanna, (Boston) Globe Correspondent, July 2, 2008

With several high-profile cases of child abuse seared into public memory, legislators yesterday approved a bill they said will strengthen the state's child welfare system, with stricter standards for how agencies investigate abuse.

The measure is intended to prevent the sorts of cases lawmakers said have become all too familiar: instances in which children were killed or harmed after state social workers had contact with families.

The bill "sets up a framework to handle the most troubling and disturbing cases . . . and how we can prevent them from even happening in the first place," House Speaker Salvatore F. DiMasi said at a press conference. Governor Deval Patrick is expected to sign the legislation.

Under the bill, three unsubstantiated reports of abuse - cases in which a child's injuries were examined and attributed to self-abuse, for example - within a three-month period would trigger an automatic investigation by a Department of Social Services board. Also, if three such reports were spread over a year, a board review would also be triggered.

The changes are intended to function as "another set of eyes looking at the matter," said state Senator Karen Spilka, Democrat of Ashland.

Critics have cited potential loopholes in the state's child welfare system following a string of startling abuse cases.

In 2005, 14-year-old Haleigh Poutre lapsed into a coma after she received a near-fatal beating from her adoptive mother, who had previously been monitored by the Department of Social Services. A few months later, 4-year-old Dontel Jeffers, who suffered a black eye, bruises, and a ruptured intestine, died in the care of his foster mother. And in 2006, 4-year-old Rebecca Riley of Hull died after she was given an overdose of psychiatric drugs.

Lawmakers at yesterday's press conference pointed to Poutre's case as the impetus for overhauling the system. "Haleigh brought us here today, quite tragically," said House majority leader John Rogers of Norwood.

The bill boosts penalties for professionals who are required to report suspected abuse, such as doctors and teachers, but who fail to carry out that duty. It puts into law an independent Office of the Child Advocate, which Patrick created by executive order.

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"Appeals court agrees Bernard Baran should remain free"
By Jack Dew, Berkshire Eagle Staff, Friday, May 15, 2009

PITTSFIELD — A state appeals court has upheld the judgment that freed Bernard Baran, who was convicted in 1985 of molesting five young children at the Early Childhood Development Center in Pittsfield.

The ruling, issued late this morning, means that Baran will remain free pending a new trial or a successful appeal by the Berkshire District Attorney's office to the Supreme Judicial Court.

Baran, now 44, was sentenced to five concurrent life sentences in 1985 after a trial in Berkshire Superior Court. His initial appeal was denied a year later, but his case was kept alive by a growing number of supporters who believed that Baran, a gay man, was a victim of hysteria surrounding day care centers and child molestation allegations during the 1980s.

In June 2006, Superior Court Judge Francis R. Fecteau overturned Baran's convictions, concluding that his original defense attorney, Leonard Conway, was incompetent. After serving 21 years in prison, Baran went free.

Central to Fecteau's conclusion was Conway's failure to discover and use videotapes of investigators' interviews with the alleged victims, some of whom said they had been molested by someone other than Baran, while others at times denied ever having been molested at all.

Baran's new defense team — John Swomley, Eric Tennen and Harvey Silverglate, all of Boston — argued the tapes also showed the children being led and prompted by investigators, leading the children to describe abuse that never happened.

District Attorney David F. Capeless has argued the tapes don't carry the significance that Baran's team claims; the videos were made after the children had reported the abuse and were created for the grand jury to spare the children the pain of testifying.

Baran has been living in the Boston area since his release.

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"End the Bernard Baran saga"
The Berkshire Eagle, Editorial, 5/16/2009

With every step through the judicial process, the Bernard Baran trial becomes further set in stone as a legal fiasco. We urge District Attorney David Capeless to abandon further action in the wake of Friday's decision by a state appeals court to uphold the overturning of Mr. Baran's conviction of child molestation.

Mr. Baran was found guilty of molesting five young children at the Early Childhood Development Center in Pittsfield in 1985 and spent 21 years in jail until he was released in 2006. At that time, Superior Court Judge Francis R. Fecteau found that Mr. Baran's attorney, Leonard B. Conway of Westfield, was incompetent without noting that his incompetence came in the context of his failure to respond adequately to a poorly brought prosecution. In backing Judge Fecteau, the three judges on the appeals panel made that connection.

Mr. Baran was denied access to taped interviews of the alleged victims in which some denied they were molested and others said they were molested by someone else. Police reports and other material that could have benefited Mr. Baran were not turned over to the defense. The sexuality of Mr. Baran, who is gay, was improperly disclosed. The appeals court went further than Judge Fecteau in raising the possibility of prosecutorial misconduct, which Mr. Baran's defense team has long asserted, though it did not arrive at a conclusion. The prosecutor in the Baran case was Daniel Ford, then a first assistant district attorney, now the presiding judge in Berkshire Superior Court.

The Baran trial came as the high-profile abuse trial at the Fells Acre Day Center in Malden, Massachusetts was in full roar, and by quoting from a dissenting judge's opinion in that case Friday, it is apparent that the appeals court understands the hysteria that was part of the context of the Baran trial. It was a shameful period when homosexuality was routinely equated with pedophilia, and "gay predators" were popular bogeymen.

Mr. Capeless can appeal this decision to the state Supreme Judicial Court, but there is no reason to believe it would rule any differently than did its predecessors. Retrying the case after a quarter century of faded memories is pointless. The district attorney has done his job to this point and we hope he will drop the case and let it disappear into history.
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"Bernard Baran case must be kept alive"
The Berkshire Eagle, Letters, Wednesday, May 20, 2009

I commend you for calling Bernard Baran's case a legal fiasco (editorial, May 16), and reminding people of the child-abuse hysteria that still ruins lives, such as Robert Halsey's (Halsey was convicted of abusing children on his Lanesborough school bus route in 1993.) All the more reason not to "let it disappear into history."

It should be a national news story — certainly more than the non-issue of marshmallow fluff in school lunches which the Boston Globe, Los Angeles Times and Washington Post covered in 2006 while sweeping Baran's release under the rug.

DAVID C. BOIES
Washington D.C.
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"Where is justice in Bernard Baran case?"
The Berkshire Eagle, Letters, Thursday, May 21, 2009

The most disturbing thing in the Baran case, if D. R. Bahlman is correct, is that Baran has served 21 years for the same crime he would have served six years if he copped a plea, and is still not free (Eagle, B-1, May 19.) Where's the justice in that?

If District Attorney Capeless had any sense of right and wrong, and I doubt that he does after listening to him complain about the new marijuana law, he'd drop the Baran case and look for another job.

NICK HUBACKER
Pittsfield, Massachusetts
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Notes & Footnotes: "Choices will be difficult in Bernard Baran case"
By D.R. Bahlman, Op-Ed, The Berkshire Eagle, Tuesday, May 19, 2009
WILLIAMSTOWN, Massachusetts

Last week's news that the Massachusetts Appeals Court had upheld a Superior Court judge's ruling that Bernard F. Baran is entitled to a new trial on charges that he sexually molested five young children at a day care center in Pittsfield in 1984 inspired a review of a tall stack of documents related to the case.

This work, undertaken largely to re-affirm a long-held opinion that Baran was railroaded into state prison by a lethal combination of homophobic prejudice, bad lawyering, bad science and weak judicial oversight was light duty compared with the task that now faces Berkshire County District Attorney David F. Capeless.

Capeless must decide whether to appeal the decision to the Supreme Judicial Court, re-try Baran or drop the case, in which event Baran would go free. He was released from prison in 2006 after serving 21 years, but his every move is monitored electronically and the threat of re-incarceration hangs over him constantly. At best, he's half-free, haunted by uncertainty about whether he will ever regain full liberty.

To be sure, there are those who would wish this misery — and much more — on Baran, but even the most vociferous of his detractors, assuming that they possess even elementary knowledge of the facts of the case as they have been revealed in recent years, would be hard pressed to deny that there now is much more reason to question his guilt.

The pool of reasonable doubt has become far deeper and wider than it was in 1985. Baran has never stopped proclaiming his innocence, and it's likely that he would have been free long ago if he'd purchased his liberty with a (false) admission of guilt. It's worth noting that the prosecution has never disputed Baran's trial lawyer's public statement that his client was offered — and rejected outright — a deal in 1985: plead guilty and serve six years "local time" in the House of Correction. A reasonable person could be excused for wondering why a guilty man would turn that down.

Given that this layman's knowledge of the ins and outs of appellate practice is nonexistent, it's obvious that the district attorney is in the best position to decide whether or not to pursue an appeal. He is, indeed, the only person who can make that call, and if he decides to try to take the case "up" to the SJC, a fresh blizzard of paper will cover the ground and there's no telling when it will be cleared up.

Given the comprehensive findings of the Appeals Court, it now seems to be fairly well settled that the first trial was fatally flawed, but if the high court decides to have another look, so be it. All a citizen can ask is that matters be expedited to the fullest extent possible. After all, justice delayed is justice denied, even when it's the prosecution's appeal under consideration.

A new trial is another matter entirely, and if the district attorney decides to take that route, the order of events is somewhat more predictable. It begins with an indictment. If a grand jury delivers one, it's on to court, where it's certain that things will proceed in a manner far different from the way they did in 1985.

Witnesses will be cross-examined by lawyers supplied with extensive "discovery" material that wasn't available to Baran's original trial counsel. The investigation conducted by lawyers defending the day care center against a parent's civil suit for negligent supervision yielded extensive evidence suggesting that people other than Baran had sexually abused the children.

Also, the video tapes of interviews with the children will likely be shown in their entirety. In 1985, jurors saw only pre-selected sequences.

The unedited tapes display the use of a wide range of since-discredited interviewing techniques that produced answers that well-meaning adults wanted to hear. Besides, nowhere on the tapes is a child shown being asked an open-ended question, much less making a spontaneous, unsolicited or un-coached accusation against Baran.

At sea or in court, undercurrents lurk, and one of the most troublesome — and troubling — of these is the statement, supported only by indirect evidence, that in at least one case, it was suggested to a child that receipt of "a lot of money" — an insurance settlement — hinged on the identification of Baran as the culprit.

As they did in 1985, and as they always will, children aim to please adults, and the children in the Baran case could be said to have been victimized twice, once by being sexually abused and again by the cruel twisting of their natural and innocent desire to make grownups happy.

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"Time to leave Bernard Baran alone"
The Berkshire Eagle, Letters, Tuesday, May 26, 2009

As D.R. Bahlman's column of May 19 (2009) and other accounts clearly spell out, the trial of Bernard Baran in 1985 was nothing short of a farce on all levels. Among the numerous blunders that occurred during the trial, the one that comes to mind for me is the apparent false accusations against Baran from a homophobic mother whose child was diagnosed with gonorrhea of the mouth, and whose abuse pointed toward the mother's live-in boyfriend. This is just one of many aspects of an investigation and trial that in retrospect borders on the bizarre, whether one looks at the prosecution, defense (what there was of it) and the overall conduct of the trial.

Justice was not served in this case, and the consequence was 21 years in state prison for Baran. One has to wonder what motivates District Attorney David F. Capeless to consider a retrial or an appeal of a decision by a Superior Court judge, upheld by the Massachusetts Appeals Court, that depicts accusations as essentially groundless and the trial as a shambles.

Perhaps Mr. Capeless is intent upon assuaging the reputation of a prosecution for which the Appeals Court raised the possibility of misconduct. What the latest rulings reveal, however, is that an injustice was perpetuated against Mr. Baran, and it's time he be left alone to live the rest of his life in peace.

RICHARD T. DELMASTO
Pittsfield, Massachusetts
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"Bernard Baran decision-time"
The Berkshire Eagle, Editorial, Wednesday, June 3, 2009

After more than 20 years, the legal system could finally release its grip on Bernard A. Baran. Or, another chapter could be written in this long-running saga. We hope for the former, primarily because Mr. Baran has needlessly suffered enough, but also to close a dark chapter in Berkshire County's legal history.

The decision rests this week with Berkshire District Attorney David Capeless, who could challenge the decision made last month by an appeals court to uphold the overturning of Mr. Baran's conviction for child molestation. He could also pursue a new trial in what is now a quarter-century-old case.

After serving 21 years in jail, Mr. Baran, who was found guilty of molesting five young children at the Early Childhood Center in Pittsfield, was released in 2006 following a ruling by Superior Court Judge Francis R. Fecteau. A state appeals court upheld that ruling, and in doing so took a step past Judge Fecteau's decision that Mr. Baran was victimized by a poor defense. The court placed that poor defense in the context of a poor prosecution, raising the issue of prosecutorial misconduct without reaching a definitive conclusion.

The decisions made by Judge Fecteau and the court were well-reasoned and articulated, and it is difficult to imagine the state Supreme Judicial Court, which is the next step up the judicial ladder, ruling any differently. An appeal to that level will invite another investigation of the handling of that case, which is not one that flatters the Berkshire legal system.

That Mr. Baran and his attorney were denied access to taped interviews in which the alleged victims contradicted each other, as well as to police reports and other material that could have benefited Mr. Baran, is beyond dispute. Since-discredited interviewing techniques were employed amidst a climate of mid-'80s hysteria fueled by a similar higher profile case at the other end of the state. Mix in homophobia and inadequate judicial oversight and the result is a fatally and horrifically flawed case.

Bringing a new trial would mean getting the testimony of adults asked to recall events of their childhood 25 years ago that were cloudy when the first trial took place in 1985. We trust that the case would be better executed than its predecessor, but the fog of time would inevitably compromise it.

And to what purpose? Mr. Baran, who is gay, has spent 21 hard years behind bars. Even now, he is electrically monitored, and with the possibility of being sent back to jail still real, he is not entirely free either physically or psychologically. Time for all parties to move on.
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"Dropping Baran case, DA calls jury's verdict correct"
By Jack Dew, Berkshire Eagle Staff, Tuesday, June 9, 2009

PITTSFIELD — Ending a case that spanned three decades and kept Bernard Baran Jr. in prison for 21 years, Berkshire District Attorney David F. Capeless today said he will no longer seek to prosecute Baran on child molestation charges.

Appearing at a mid-morning press conference in his North Street office, Capeless said he reached his decision after careful consideration and consultation with the alleged victims.

"My decision is not based upon any judgment that Baran did not do what he was convicted of by a jury 24 years ago," Capeless said. "In fact, I remain convinced that those 12 jurors delivered a correct verdict."

Baran was not immediately available for comment.

His lead attorney, John Swomley of Boston, said in a telephone interview that, sometimes, "the system really works. It took a long, long time for it to work in this case, and a lot of hard work, but when we were able to demonstrate that injustice happened and get into a neutral court, we were able to prevail."

"I have been waiting for this moment for nine years," he added. "It makes more than my day. It makes my week, my month, my life. I am so happy for (Baran)."

Baran, now 44, was accused of molesting five young children at the Early Childhood Development Center in 1984 when he was 19 years old. He was convicted in 1985 and sentenced to three concurrent life sentences.

But his case was kept alive by a growing number of supporters who were convinced that Baran, an openly gay man, was persecuted for his sexuality and a victim of the hysteria that surrounded allegations of child molestation at day care centers around the country, including the famous Fells Acres case in Malden.

In June 2004, Baran's new legal team filed a motion for a new trial, arguing that Baran's original attorney was incompetent. In 2006, a Superior Court judge agreed and overturned the guilty verdict, freeing Baran after 21 years.

Capeless challenged that ruling in the Massachusetts Appeals Court which, in May, upheld the lower court and went even further, ruling that Baran's right to a public trial had been violated when the judge closed the courtroom during the children's testimony. It also raised the possibility of prosecutorial misconduct, calling several of the prosecutor's actions "troubling."

While Capeless acknowledged "that there were mistakes made" during the 1984 investigation and the 1985 trial, he said the passage of time was more damaging to the case, making it nearly impossible to prosecute Baran again.

"The damage that has occurred to the memories of the witnesses, and the damages that will occur from bringing forth the remaining memories of the victims, compel me to realize that going forward is not in the interests of justice," he said.

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"Freedom official: DA drops Baran case"
Berkshire Eagle Staff, Tuesday, June 9, 2009

PITTSFIELD — Berkshire District Attorney David F. Capeless said today he will drop the case against Bernard Baran Jr., who spent 21 years in prison on child molestation charges, after an appeals court judge overturned the man's conviction in May.

Capeless' decision, issued at an 11 a.m. press conference, means that Baran is a free man.

Baran, 44, was convicted in 1985 of molesting five young children at the Early Childhood Development Center in Pittsfield. He was sentenced to life in prison but was freed in 2006 when his new legal team successfully argued that his original attorney was incompetent.

The appeals court agreed that Baran's attorney was incompetent and pushed its judgment even further in Baran's favor. It found that a decision to close the courtroom when the children took the stand violated Baran's right to a public trial and, by itself, was sufficient grounds to overturn the guilty verdict.

Perhaps more importantly, the appeals court broached the possibility of prosecutorial misconduct. It said then-Assistant District Attorney Daniel A. Ford — who is now a Superior Court judge — may have inappropriately vouched for witnesses and made improper statements during his closing arguments.
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Bernard Baran Jr. sheds a tear after leaving Berkshire County Superior Court House on Tuesday. Baran served 21 years in prison on a child molestation conviction that was overturned in June 2006.
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"Bernard Baran free for keeps: Baran's family can put the past finally behind"
By Jack Dew, Berkshire Eagle Staff, Wednesday, June 10, 2009

PITTSFIELD — Just after 3 p.m. on Tuesday, Bernard Baran turned a corner on Wendell Avenue and, holding his mother's hand, walked up the stairs of the Berkshire Superior Court to claim his freedom.

In a plain office on the second floor of the Probation Department, Baran rested his foot on a metal chair while the last remnant of his imprisonment — an electronic monitoring bracelet belted around his ankle — was cut loose. After 21 years in prison and three years under close court supervision, he was free.

Back outside in the damp afternoon, Baran and his small group of friends and family huddled briefly. There were no plans for a celebration, just a trip home.

"I came (to the Berkshires) today because my mother had to watch her innocent son being taken away 24 years ago, and I can't imagine what that was like for her," he said. "I knew today that I had to be here — be here with her — when we got the news, whether it was good or bad."

Baran's older brother, Santo, was turned away on Tuesday morning when he tried to attend the press conference where Berkshire District Attorney David F. Capeless said he would not seek to prosecute Baran on child molestation charges. He waited outside for word and then relayed the news to Baran.

"It's been a long time coming," Santo said. "Too long."

Baran has been living and working in the Boston area since a Superior Court judge overturned his guilty verdict in 2006. For three years, he said, he has lived with the constant threat that he could be returned to prison, perhaps by a ruling from the appeals court or a change in the terms of his bail.

"I never could really enjoy life because I always worried about the what ifs. How close do you get to your family before you get ripped away again?" he said.

"I don't feel glorious in this for the simple fact that there is still a lot of hurt to a lot of different people," he added.

For Baran's mother, Bertha Shaw, Capeless' decision ended 24 years of worrying and praying.

"It feels like it's not real," she said. "I prayed and I never gave up, because I knew from day one, when I asked him, 'If you did this, we can get you help,' and he looked right at me and said, 'Mom, I didn't do this. Don't worry.' So I knew that I would never give up. There were times when I wondered if we would ever see this day, or if I would live long enough to see it, but I never gave up."

Asked what he plans to do now, Baran said he will "take it one day at a time, real slow." He said he knows he can't regain what he lost.

"One thing I have learned is that you can't make up for anything. If you try, you get lost in the pain of realizing how much you missed," he said. "So I've got to start over."

And he said he will never be the person he was before he was imprisoned.

"Everything that I went through will never be over for me, and I am a different guy than I was before. I don't trust. I worry. I'm nervous about everything, and I worry for my family," he said. "I just want to move on and be with my family and embrace the life that I desperately fought to get back."
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To reach Jack Dew: jdew@berkshireeagle.com, or (413) 496-6241.
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"Capeless' statement"
The Berkshire Eagle, City, Wednesday, June 10, 2009

Berkshire District Attorney David F. Capeless has decided not to continue prosecuting the criminal case against Bernard Baran. At a Tuesday morning press conference, Capeless gave the following statement: "After careful consideration, I have decided to no longer prosecute the case against Bernard Baran. My decision is not based upon any judgment that Baran did not do what he was convicted of by a jury 24 years ago. In fact, I remain convinced that those 12 jurors delivered a correct verdict.

"I acknowledge that there were mistakes made back in 1984 and 1985. But the passage of 24 years has done more to damage any further prosecution of the case than anything that happened back then. The damage that has occurred to the memories of the witnesses, and the damages that will occur from bringing forth the remaining memories of the victims compel me to realize that going forward is not in the interests of justice

"Since inheriting this case five years ago, I tried to fulfill my responsibilities as district attorney. I have carefully reviewed all the material available that was connected to this case. And I have made professional judgments that were in the interests of justice. Not necessarily to protect a conviction, but to do what I felt was right. Those decisions did lead me to pursue the available legal avenues to maintain the verdicts — in the trial court and then eventually in the appeals court. That argument has not been successful, and I accept the decisions of the courts.

"My decision today is made foremost in the best interests of the victims — each of them now a young adult. Twenty-four years ago, the investigation and prosecution were undertaken for their benefit, and what I do today, as best I can, is also for their benefit.

"I have legitimate concerns about their ability to accurately recall events of twenty-four years ago, but I have an even greater concern for the damage those recollections might cause now.

"My conversations with them, during the past five years and most recently, have made clear to me that the pain they endured was real. For those who have been able to put the pain behind them, I do not want to bring it back. For those who could not put the pain behind them, I do not want to deepen the trauma.

"Today my thoughts are with them, and I want to speak about them and for them. Up to now, this matter has been all about Bernard Baran. Today, it is about the victims: their courage then — as young children who came into court to testify, and their continued courage now, as young adults carrying on with their lives.

"As I spoke to them recently, each of them expressed concern for the welfare and the feelings of the others, and only reluctantly talked about him or herself. They all want to do what is best, and they each are in accord with my decision.

"They each know that what happened to them 24 years ago was very real. And they each also expressed an appreciation that the 20-plus years that Baran spent in prison were just as real as their pain. For them, there has been a real measure of justice. But now, it is time to put it behind us."
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"A 24-year saga"
The Berkshire Eagle, City, Wednesday, June 10, 2009

A time line of events in the Bernard Baran Jr. case:

October 1984: Bernard Baran Jr. is arrested on charges that he molested children at the Early Childhood Development Center in Pittsfield.

January 1985: Baran is found guilty by a Superior Court jury of three counts of rape and five counts of indecent assault and battery. He is sentenced to three concurrent life prison terms.

March 1986: The Massachusetts Appeals Court upholds Baran's convictions. The Supreme Judicial Court refuses to review the decision.

June 2004: A new legal team files a motion for a new trial in Berkshire Superior Court. The case is moved to Worcester.

June 2005: Judge Francis R. Fecteau conducts hearings over five days on the motion for a new trial.

June 2006: Fecteau overturns Baran's convictions and orders a new trial. Berkshire District Attorney David F. Capeless appeals. Baran goes free on bond.

February 2008: The appeals court hears oral arguments in Capeless' appeal.

May 15, 2009: The appeals court upholds Fecteau's decision. Baran remains free.

Tuesday (6/9/2009): Capeless announces that he will drop the case against Baran, ending the prosecution after 25 years.

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"The right and only call"
The Berkshire Eagle, Editorial, Wednesday, June 10, 2009

Bernard A. Baran Jr. has been out of jail for three years, but for the first time in 24 years he is truly free. The decision of Berkshire District Attorney David F. Capeless not to continue prosecuting the case against Mr. Baran finally ends a long and disturbing legal saga.

In 1985, the 19-year-old Mr. Baran was convicted by a Berkshire Superior Court jury of sexually molesting five young children at the Early Childhood Development Center, and was sentenced to three concurrent life sentences. It was clear from his statement at a press conference Tuesday that Mr. Capeless remains convinced of Mr. Baran's guilt, but all that can be said with certainty is that judicial oversight was lacking in a case that was botched by the defense and mishandled by the prosecution. Both a Superior Court judge and the Massachusetts Appeals Court made this clear. After 21 years in prison, Mr. Baran was freed following the overturning of the guilty verdict in 2006, but he has been electronically monitored as the appeal process dragged on.

Mr. Capeless acknowledged "there were mistakes made" in the legal process, but they were many and grievous. The Appeals Court found that closing the courtroom during the children's testimony violated Mr. Baran's right to a public trial, and the court raised the possibility of prosecutorial misconduct in the context of the lack of access accorded the defense to reports and taped testimony that could have helped Mr. Baran. Child molestation and gay hysteria contributed to a poisonous climate.

The district attorney said that his decision not to appeal further or retry the case was based not on those mistakes but the affect of time on the memories of the alleged victims and the damage that could be brought by bringing forth those memories. We respect Mr. Capeless' concerns, but the coaching of testimony from those children with discredited techniques, indications that one parent coached a child in the hope of getting a large settlement, and the possibility that one child was abused by a family member are among the many problems that afflicted the original case.

At any rate, we are glad this case is finally over. We hope that Mr. Baran and all parties to it can move forward.
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"Massachusetts District Attorney decides not to retry child abuse case against a man convicted in 1985 of molesting children at day care center"
Bureau News - June 9th, 2009

BOSTON — A Massachusetts man who has long asserted he was wrongly convicted of child molestation during a national hysteria over child-care sex abuse cases in the 1980s and was freed three years ago won’t face a new trial.

Forty-four-year-old Bernard Baran was released in 2006 after a judge ruled the lawyer who represented him at his 1985 trial was incompetent. Baran’s supporters also have questioned investigators’ methods of interviewing children in the case.

Prosecutors say retrying Baran is “not in the interests of justice” and would dredge up painful memories for witnesses.

In a statement released after prosecutors announced their decision Tuesday, Baran says he feels vindicated. His lawyer, Harvey Silverglate, says Baran would have been acquitted had the case been tried properly.

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"McElroy made the proper call"
The Berkshire Eagle, Letters, January 24, 2010

Kudos to Judge James McElroy for making the right decision in a case of police and prosecutorial misconduct by dismissing all the charges against the Simonetta family (Eagle, Jan. 12).

As Judge McElroy stated, the failure to follow appropriate and legal discovery procedures by the police and prosecution was so "severely substandard" that he had no choice but to end this farce of a trial. I found it interesting that District Attorney David Capeless, if effect, dismissed McElroy's admonitions by avoiding any blame for his office's serious transgressions, instead attributing the situation to "logistical failures."

Judging by his comments, Mr. Capeless refuses to acknowledge responsibility for his office's ineptitude, or to recognize that the lives of innocent people were seriously jeopardized. The Simonetta family was victimized by state officials, who refused to show identification, and police, who barged into their home without a warrant to take away their grandchild, and assaulted three family members, according to a defense attorney. The police then imposed false criminal charges against family members that could have upended their lives, just for defending home and family. I find it difficult to swallow that Joseph Simonetta, at the age of 70, posed some kind of threat to an armed policemen to the point where he had to be charged with assault and battery of a police officer. According to Mr. Simonetta, the trial would have uncovered more lies.

I wish defense attorney John G. Swomley well in his pursuit of justice for the Simonetta family via civil suit against these authorities, whom he said should "have their noses rubbed in the mess they made, like a bad dog." Aptly said.

RICHARD DELMASTO
Pittsfield, Massachusetts

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Letter: “We need a change in Berkshire County DA's office”
The Berkshire Eagle, October 24, 2018

To the editor:

In regard to the election of the next Berkshire County district attorney on Nov. 6, do we let the DA's office run as it has for the last 30 years or do we change it? It's time for a change.

Mr. Caccaviello has been with the Berkshire DA's office most of his career. During that time, the office has been relentless in getting convictions of accused people whether they were guilty or not. Take the case of Bernard Baran. Exculpatory evidence was not turned over to the defense. Shouldn't that have made the trial a mistrial? How often has this happened in other cases?

Would it not be a good assumption that whoever works in the DA's office has to take on the reputation of that office? Wouldn't it be a good assumption that Mr. Caccaviello had something to do with the decision whether or not to pursue a conviction? If Mr. Caccaviello is elected do you think that after all these years he is going to change the conduct and procedures of the DA's office?

We cannot allow one of the most powerful offices in Berkshire County to be run like that. It is time for a change. I am voting for Andrea Harrington. She has practiced criminal law for more than 15 years, defending clients and in labor law. She may not have the same experience as her opponent but she is willing to sit down at the table and work with people to find new and practical solutions.

I believe she will assemble a team of experienced attorneys who will prosecute criminals to the fullest possible extent of the law. This will give justice to the victims of crime and their loved ones. Drawing on the legal expertise of the team of people you have chosen is an excellent sign of a leader.

We need a change in the Berkshire district attorney's office. Remember, if you don't vote you lose your power and your opponent gets your power. Vote for Andrea Harrington on Tuesday, Nov. 6.

Thomas Marini, Pittsfield

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Our Opinion: “Baran case offers lesson that is still current”
The Berkshire Eagle, December 11, 2018

Tonight, the Berkshires community has a rare opportunity to grow in spirit and benefit from the wisdom that only comes from openly and honestly confronting past transgressions. At 7 p.m. in the Berkshire Athenaeum, the Pittsfield Human Rights Commission hosts a presentation centered around the shameful conviction and incarceration of a gay Pittsfield man who fell victim to the prevailing attitude of his times.

Bernard Baran, who was 19 at the time of his arrest in 1984, was a day care worker working at the Early Childhood Development Center in Pittsfield. Mr. Baran was accused of sexually abusing five children at the center; the trial that followed stands as a textbook example of how prejudice justified the perversion of legal processes to achieve a desired goal.

It may be difficult for today's Massachusetts residents to imagine, but there was a time when society considered "gay" and "pedophile" practically synonymous terms. Bearing that in mind, it is possible to understand — but not condone — such travesties of jurisprudence as denying Mr. Baran his constitutional right to a public trial, the encouragement of child witnesses to "recover" lost memories that never existed by the use of strategically awarded treats and the coaching of a child by a parent hoping for a cash settlement.

Mr. Baran, who steadfastly maintained his innocence until his death in 2014, spent 21 years in state prison suffering the kind of treatment that the inmate population reserves for convicted child rapists. Friends and advocates finally helped him win a new trial in 2006, when he was released on bail. Another three years passed before then-District Attorney David Capeless finally threw in the towel and decided not to retry the case. Only then could Mr. Baran begin to enjoy five years of freedom until his death. In a remnant of the misguided motives that originally placed him behind bars, then-Attorney General Martha Coakley declined to expunge his record.

Throughout this nation's history, Americans have revered the rule of law — but there were, and still are, times when lack of understanding, fear of "the other" and a need to expunge that threat from its midst gripped the populace and caused us to succumb to our baser instincts. The Salem Witch Trials were such an instance, as were lynchings of African Americans in the South. Today, immigrants — particularly those of Latin American origin — are victims of undeserved calumny. Mr. Baran was accused at a time when hysteria over child care sexual abuse swept the land, and his greatest offense — being openly gay when contemporary mores dictated that such "moral degenerates" stay in the closet made him a ripe target.

Tonight, three men who were instrumental in clearing Mr. Baran's name will speak — one of them the head of his legal team from 1999 onward, another who was inspired by his case to found a justice committee dedicated to helping others falsely convicted of crimes, and a third who contemporaneously reported Mr. Baran's case for the LGBT press.

Those who attend tonight will take away the knowledge that the battle to sustain the principles of equal rights for all is a never-ending one, and that society must remain constantly on guard against the lesser angels of human nature. If Mr. Baran's undeserved experiences result in the raising of our consciousness on this fraught topic, then his sacrifice will not have been in vain.

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December 11, 2018

Re: Bernard Baran was framed is a matter of historical fact!

The now late District Attorney Gerry Downing hid exculpatory evidence of tape recordings against the now late Bernard Baran that were not released well after his death by then D.A. David Capeless. Once the exculpatory evidence (tape recordings) was released, Bernie Baran was let out of prison. Prosecutors Gerry Downing and Daniel Ford knowingly framed Bernard Baran via hiding exculpatory evidence for decades and using homophobia against a man they knew was innocent. Daniel Ford is still a Massachusetts Superior Court Judge! To say Baran was railroaded is not enough. The innocent man was framed! It is a matter of historical fact!

- Jonathan Melle

In reply to:

Tomorrow night Wednesday at 7 pm at the Berkshire Athenaeum there is going to be a discussion about the railroading of Bernard Baran. it is free and open to the public. Story in the Eagle Monday, Dec 10 (front page). Hosted by the Pittsfield Human Rights Commission.

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Letter: “Baran case a reason why Capeless regime voted out”
The Berkshire Eagle, December 11, 2018

To the editor:

The Eagle's story about Bernard Baran (Eagle, Dec. 10), a man who spent over 20 years in prison for sexual crimes against children he never committed — ostensibly because he was gay, reminds of how grateful I am that we no longer have David Capeless or his handpicked successor, Paul Cacaviello, in the district attorney's office. Despite so many indications to the contrary — a blatantly unfair trial, obviously tampered interviews with children, incessant protestations by Baran that he was innocent, and ultimately, widespread realization among law and mental health professionals that Baran was telling the truth, Capeless nevertheless maintained that the trial had the correct outcome. This is why, among other reasons, we elected Andrea Harrington as our new DA.

Richard T. Delmasto, Pittsfield

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April 18, 2020

Re: Bernard Baran, Gerry Downing, Daniel Ford, Carmen Massimiano, Angelo Stracuzzi, Cliff Nilan ....

Pittsfield's hypocritical Catholic leaders persecuted the late Bernard Baran. The late D.A. Gerry Downing knowingly and illegally hid exculpatory evidence from the 1980's trial and later appeals. The exculpatory evidence were audio tape recordings of children's testimony. Gerard Downing died of a heart attack in 2003. After Gerry Downing died, D.A. David Capeless handed over the illegally withheld tapes To Baran's defense team and then Baran was released from state prison. I also read that now Judge Daniel Ford and the late Gerry Downing used homosexual stereotypes of the 1980s as prosecutors during Baran's unfair trial.

I heard rumors over the years that Pittsfield (Mass.) Catholics who were pillars of the corrupt community I grew up in during the 1980s all led double lives as homosexual deviants. I heard that Baran, who was a teenager when he was falsely accused of sexual abuse against children, was in the know about it all. Pittsfield's Catholic leaders wanted Baran out of the way, so they hypocritically persecuted him.

I read all about former Berkshire County Sheriff Carmen Massimiano on blog pages and in The Berkshire Eagle. I read that Carmen Massimiano was an alleged sexual abuser of children who were young boys from his teenage years through his 20's (and possibly beyond). Carmen Massimiano was a camp counselor at the Boys Club Camp Russell in his teenage years where he allegedly sexually abused young boys. The Berkshire Eagle reported that Carmen Massimiano allegedy sexually abused a 7 year old boy at the Pittsfield (Mass.) Boys Club when Carmen Massimiano was in his 20's. I read that one man committed suicide due to Carmen Massimiano's alleged sexual abuse from when the mentally ill man's childhood. I read that the man Carmen Massimiano sexually abused at the Boys Club when the man was 7 years old, and again when the man was 11 years old, went through years of psychiatric help.

Then there is Angelo Stracuzzi who was arrested in Maine for sexually abusing underage teenage boys. As part of his sentencing, Angelo Stracuzzi had to go through 2 years of psychological counseling for sexual deviant behaviors towards underage teenage boys. Superior Court Chief Probation Officer Cliff Nilan, who took over his position from Carmen Massimiano a long time ago, got into trouble with the Massachusetts Superior Court system for not enforcing Angelo Stracuzzi's mandated mental health counseling.

In closing, the Catholic leaders in Pittsfield (Mass.) who persecuted Bernard Baran were all moral hypocrites who lived double lives as homosexual deviants.

- Jonathan Melle

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D. R. Bahlman | Notes & Footnotes: "Lessons learned from Baran case"

By D. R. Bahlman, op-ed, The Berkshire Eagle, September 3, 2021

WILLIAMSTOWN — Every Sept. 1 for the past seven years, the family of Bernard F. Baran Jr. has published on the obituary page of this newspaper a notice of the anniversary of his death.

“Bee,” as he was known to many, was 49 when he died unexpectedly in 2014. His name may be familiar: In January 1985, at age 19, he was sentenced in Berkshire Superior Court to three terms of life in state prison. A jury had convicted him on three counts of statutory rape involving children at the Pittsfield day care center where he worked as a teacher’s aide. Baran also was sentenced to five concurrent 8- to 10-year terms on five counts of indecent assault and battery. The five children ranged in age from 3 to 5.

The prosecutor in the case had requested a sentence of two life terms to be served concurrently; the judge ordered Baran to serve three concurrent terms of life.

Over the following several years, appeals were exhausted and little was heard about the case until June 2004, when John G. Swomley, a lawyer from Boston, filed a motion in Berkshire Superior Court seeking a new trial for Baran. After more than a year of legal wrangling, including skirmishes over a lengthy delay in the prosecution’s court-ordered production of unedited video tapes of interviews with the children, a hearing on the new trial motion was granted. Over the next several months, Swomley and then-Berkshire County District Attorney David F. Capeless made their respective cases in Worcester Superior Court before Judge Francis J. Fecteau.

Full disclosure: Having retired from The Eagle in 2005, I was hired to cover the hearings on a freelance basis. I also wrote two more in-depth articles about the case for the newspaper. Simultaneously, also as a freelancer, I wrote this column, in which I more than once expressed support for Baran’s motion.

The main underpinning of Swomley’s argument was that Baran’s lawyer, Leonard Conway, of Westfield and formerly of Pittsfield, was incompetent. Conway, who has since died, told me in an interview that he did not request time to review the unedited videos of the interviews with the children. And, from my viewpoint more importantly, he also confirmed that the prosecution offered his client a plea bargain midtrial.

If Baran agreed to plead guilty of the charges, the proposal stated, the prosecution would seek a sentence of six years in the Berkshire County House of Correction. No one has denied that the offer was made, or questioned the accuracy of its reporting. It struck me as likely that a guilty person would jump at the chance to avoid serving life in a maximum security state prison. Baran, who consistently maintained his innocence, rejected the deal outright. After his conviction, he was initially sent to Walpole, where he was repeatedly raped. Fearing for his life, he told me in an interview, he sought to be rehoused in a treatment facility in Bridgewater. He eventually succeeded, but only after he allegedly admitted guilt to a counselor, something he also vigorously denied doing and of which no written contemporaneous record was produced.

Material gathered by two of Baran’s staunchest supporters, Robert Chatelle and James D’Entremont, provides strong evidence that Baran was railroaded. An insurance company, investigating the day care center’s claim for coverage when it was sued for negligent supervision by several of the victims’ families, elicited statements from the children and others that they were told that their families would forfeit large sums of money if they denied being molested by Baran.

In June 2006, Fecteau ruled that Baran should have a new trial. Nearly three years later, his 60-plus page ruling was upheld by the Massachusetts Appeals Court. In June 2009, Capeless announced his decision against retrying Baran or appealing Fecteau’s decision to the Supreme Judicial Court. Baran, who had been free on bond since the initial ruling, finally was allowed to remove the electronic monitoring device he’d been wearing.

I think of Bee Baran now and then, particularly when tragic or frightening events seem to be readily capable of short-circuiting the better judgment of well-meaning people.

No one, except the child molesters who made him their fall guy, set out to hurt Bernie Baran. They were angry, frightened and confused by unspeakable atrocity, and, as an openly gay man, he had a target on his back.

It took talented and tenacious lawyers, committed supporters, and a wise and fair judge to set things right. Baran’s life as a free person was too short because fairness and justice came too late. It’s awful when that happens.

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