How to Get Ahead in Law

Bernard Baran served 22 years on dubious child molestation charges, but the prosecutor who convicted him was promoted to judge.

Last June, District Attorney David Capeless of Berkshire County, Massachusetts, announced that he was dropping all charges against 44-year-old Bernard Baran, a man who has spent half his life behind bars on child molestation charges that the state no longer has the confidence to retry.

Baran was convicted in January 1985 of molesting six children at a pre-kindergarten day care facility in Pittsfield, Massachusetts. He was released on bond in 2006 after an appeals court determined that his trial attorney had been incompetent and that the prosecution may have withheld key exculpatory evidence. Baran says that during his jail term he was raped and beaten more than 30 times, necessitating six different transfers to new correctional institutions. Such is the cost the prison system exacts on an openly gay man convicted of molesting children.

Baran was one of the first people in the country to be prosecuted in the day care sex abuse panic of the 1980s, a bizarre nationwide hysteria fed by homophobia, fears of Satanism, and a wing of child psychology that used unproven interrogation techniques that critics say caused children to recount sexual incidents that never took place.

In this case, prosecutor Daniel Ford, now a judge on the Massachusetts Superior Court, showed the grand jury that indicted Baran an edited video interview with the children. According to court documents, the video shows several kids alleging that Baran had sexually abused them. Edited out was footage in which some of the children denied any abuse by Baran, interviewees accused other members of the day care faculty of abuse or of witnessing abuse, and, most important, interrogators asked the same questions over and over—even after repeated denials—until a child gave them an affirmative answer. Some children were even given rewards for their answers.

Withholding the unedited video from the grand jury was itself an act of misconduct. An appeals court suggested that prosecutor Ford may also have withheld it from Baran’s trial attorney. We can only say “may” because there has never been a hearing on the issue, and Baran’s trial attorney was far from competent. (Judge Ford did not respond to multiple requests for comment.) In granting Baran a new trial in 2006, Massachusetts Superior Court Judge Francis Fecteau never moved beyond the inadequacy of Baran’s lawyer. When the case reached the state appeals court, the justices not only upheld Fecteau’s ruling; they looked more closely at Ford’s possible misconduct. “While the record does not settle the question whether the unedited videotapes were deliberately withheld by the prosecution,” the ruling said, “there are indications in the trial transcript consistent with that contention.”

The court further noted that it took years for Baran’s appellate lawyers to get prosecutors to turn over the unedited tapes. It also cited other examples of Ford’s failure to turn over exculpatory evidence, including evidence that two of the children who accused Baran may have suffered prior sexual abuse.

To make matters worse, the case against Baran was awash in homophobia. 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 that Baran was “queer.” The boy’s mother, who thought gays “shouldn’t be allowed out in public,” much less permitted to work at day care centers, said she “didn’t want no homo” 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 district attorney’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 argument, Ford likened Baran at a day care center to a “chocoholic in a candy store,” hypothesizing that in the “five or 10 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 appeals court that eventually overturned the conviction ruled that the incompetence of Baran’s counsel “facilitated the speculative, stereotypical, and deeply insidious links between homosexuality, gonorrhea, and child molestation.”

According to an affidavit signed by Baran’s boyfriend at the time, Ford spent an inordinate amount of time asking Baran’s boyfriend about his own sex life, employing variations of the word faggot and a mocking, drawn-out pronunciation of homosexual. Baran’s boyfriend also claims he 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 he would be arrested.

In upholding the ruling that granted Baran a new trial, the appeals court added in a footnote that if the state wanted to retry him, Baran could file a motion for a hearing on Ford’s alleged misconduct. By dropping the charges, the D.A. avoided that hearing. “In my opinion,” says Boston civil liberties attorney Harvey Silverglate, “ the possibility of an embarrassing hearing into misconduct by a former prosecutor and now sitting Superior Court judge was the main reason, if not the reason, they decided to drop the charges. The appeals court opinion cut a bit too close to the bone for them.”

So while Bernard Baran is free after 22 years of incarceration, there are no plans to look into the actions of the prosecutor, now a sitting judge, responsible for his conviction. Ford’s career trajectory indicates the backward incentive structure that prosecutors face: Convictions produce rewards, while abuse rarely comes with a penalty.

Baran has said he isn’t sure he wants to endure a lawsuit, but even if he did, he would be unlikely to get to Ford. Prosecutors enjoy absolute immunity from civil rights lawsuits, even in cases of misconduct that lead to false convictions. They are rarely disciplined in other ways either. Courts and bar associations tend to avoid professional sanctions. A study released earlier this year by the Justice Project, a pro-defense advocacy group, concluded, “Despite the prevalence of prosecutorial misconduct all over the country, states have consistently failed to investigate or sanction prosecutors who commit acts of misconduct in order to secure convictions.”

The only way Ford’s actions in the Baran case might be examined would be for one of the state’s legal ethics boards to open an investigation, either on its own or in response to a complaint. In a September article in Massachusetts Lawyers Weekly, a spokesperson for the state’s Office of Bar Counsel said that of the 1,000 or so complaints the office investigates each year, just “nine or 10” involve the state’s prosecutors.

One Ford defender told the publication that it’s unfair to hold the judge accountable for something he did a quarter century ago. But it isn’t as if this is some musty, inconsequential case pulled from the depths of a Massachusetts courthouse. There’s fresh damage here. Ford’s successors spent 25 years defending his misconduct. And Bernard Baran spent that time paying for it.

Radley Balko (rbalko@reason.com) is a senior editor at reason.

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  • ¢||

    A Witchfynder General? In Massachusetts?

    What the duck?

  • ||

    Prosecutors enjoy absolute immunity from civil rights lawsuits, even in cases of misconduct that lead to false convictions.

    That is utter bullshit. That state actors (cops, DAs, judges) are not held accountable for misconduct is tied with the War on Drugs Liberty* for the biggest problem in our justice system.

    * They actually feed on each other, it's sometimes hard to place an injustice in only one category.

  • ||

    Two words: Janet Reno

  • ||

    EXACTLY. She rose to prominence and notice by Bill Clinton for what I believe was known as the 'Country Walk' case. In that case, she played good cop/bad cop on the key witness, often holding the shivering hand of the young female witness after having her hosed down in the jail cell where she was kept naked and in solitary confinement.

    Rappaport, in his 1991 interview, characterized his techniques as being "almost like a hypnotic thing," and added that he and Haber had spent "hours and hours and hours" suggesting to Ileana that if she confessed, she would be sentenced very lightly, but if she were convicted, she would get life in prison. "We said, 'There's a deal being made.... If you don't talk, Frank could be released and you could go to prison for a long time.'" Rappaport likened his methods to "manipulation" and "reverse brainwashing."

    According to Ofshe, this description leaves "no question" that Rappaport and his partner were involved in coercing a confession.

    During this intense period of sessions, Ileana, according to Rappaport, met with another influential individual. In his 1991 interview, Rappaport said that while he was working with Ileana, she was visited by State Attorney Janet Reno -- at least 30 times.

    ...Yeah, gotta love hypnotic brainwashing on your key witness; nice little operation you ran down there, Janet...

    When Ileana's depositions are read chronologically, they suggest that many of her statements were fantasies or lies cued by her jailhouse visitors.

    On September 11, for instance, she talked mostly about violence Frank committed against her. She described him assaulting her in the shower and urinating on her, giving her drugs, sodomizing her with a cross, threatening to hurt her with a drill and other tools, burning and cutting her on the groin and legs. Some of Ileana's claims also involved children: she said Frank once ripped her shirt off in front of them; that he put suppositories up children's rectums; fondled and kissed a small boy and made Ileana fellate the child's penis; put his hands into a little girl's shorts; and made his own son orally copulate him.

    But by September 18, Ileana was talking about more stereotypically "ritual abuse" acts against the children as well as herself. Now she said Frank hung her in the garage by both hands and hung his son by the ankles. She also said Frank rubbed feces on her legs and put snakes in both her and children's genitals.

    During all these depositions, Ileana was flanked by two people: psychologist Michael Rappaport and State Attorney Janet Reno. According to Hollingsworth's Unspeakable Acts, while Ileana testified, Reno often held her hand. In a recent interview, Hollingsworth said that her source for this information was Ileana's attorney, Michael Von Zamft. Interviewed after the announcement of Reno's nomination as U.S. Attorney General, Von Zamft said he was sitting on the other side of Reno and Ileana, so he "didn't see Reno offer her hand," but Ileana "may have grabbed" it.

    If Reno did hold Ileana's hand, her behavior was highly unusual, according to Raymond Parnas, a law professor at the University of California-Davis and coauthor of a series of texts on criminal justice procedures that are widely used in U.S. law schools. "I have never heard of anything like this. It sounds like something strange was going on. It indicates an unusual relationship" between Reno and Ileana "that gives at least an appearance of a conflict of interest."

    This same woman who rose to prominence in the 1980s for this case prosecuting ritual abuse of alleged baby fuckers later presided over the monstrous burning of dozens of alleged baby fuckers in Waco, Texas.

  • ||

  • ||

    How may people in MA will really care? Sure they may sympathize with Baran, but what are they going to do about it, other than write it off in a manner that doesn't force the judge to pay for his actions? They will write it off as a mistake by a man with good intentions of fighting crime.

  • ||

    The citizens of Massachsetts don't have a good track record of holding public offficial accountable for their actions, do they?

  • ||

    Cops, DAs, and judges work on behalf of the state, and the people of that state, or commonwealth in this case. Therefore is makes some sense that the state/people takes responibility for what those actors do in their name. Under that idea, the state/people should cough up the tax dollars to pay the damages. The part missing is when the citizens, tired of their tax dollars going to lawsuits, wake up and say it time to kick those rascals out because they are costing us money by their bad behavior. This concept, which I believe is the one we are working under, bad behavior of DAs, Judges, and cops would change once it's known that the citizenry will not stand for it. The problem is that not only do we do stand for it, for the most part, we prefer it. Mostly because we support tough on crime at any cost leaders. Society, in general, is part of the problem. Society can be part of the solution if it so chooses. But it doesn't.

  • ||

    All true. The way the government is run in the US ultimate responsibility rests on the citizens. The War on Drugs Youth and the two in Asia would all have been stopped if the citizenry demanded it.

  • ||

    Their way is the way of the herd. Sometimes those on the left side of the corral argue with those on the right, but all of them share a common proximity thanks to media saturation; they see no future or safety outside the corral, and only venture outside its walls with escort. They look up to their wranglers for safety and direction. They don't understand that the herd is protected, but in only a limited fashion so it can be milked and culled selectively. They merely follow, even unto their slaughter.

    If they do sense betrayal, it is not until their own neck is locked in the gate and the scimitar is sharpened before them.

  • ||

    Like good little statists, they'll say something about breaking eggs to make an omelette.

  • statist chef||

    You wanna eat? Then shut the hell up about how I run my kitchen.

  • jesse||

    They should take anything that is worth money from Ford and give it to Baran and then throw Ford in jail for 22 years.

    That is justice

  • ||

    Baran's original defense attorney shoul be disbarred as well.

  • ||

    Aside from my "it's the people rant", I think the bar has an obligation to uphold ethics. It would be a more effective way of dealing with it than relying on the people. Shall I hold my breath until the bar gets some balls? I don't think so.

  • ||

    Re: jesse,

    [...]and then throw Ford in jail for 22 years.

    Or just let him be raped about 30 times, to avoid any more expenditure on this tax leech.

  • jesse||

    I agree, Thats a better idea. But they need to spread it out over a few years. Wait until he is almost all healed up and rape him again.

  • ||

    If you only allow the rape, you deprive him of all those years of lovely terror of walking around desperately trying to convince people in prison that you were innocent.

  • ||

    I dare say the support to do crazy shit to people, supported by other people in MA, hasn't changed since the Salem witch trials. ;-)

  • ||

    What do you think the plethora of bullshit child sex abuse cases is if not modern day witch trials with the accomanying mass hysteria?

  • ||

    It ain't just in Massachusetts. Awhile ago I detailed a couple of recent cases here in Michigan on H&R.

    Bullshit charges, lives ruined for the accused, eventual exoneration, live's still ruined for the accused, state actors lives continue as if nothing happened.

  • Paul||

    Little Rascals Childcare case. One of the biggest injustices of all time. That is all.

  • ||

    Oh I agree. They would have had witch trials too.

    It's about human nature's ability to lump people into a hate filled catagory and punish them harshly using hysteria in lieu of reason and facts.

  • ||

    Racist!

  • juris imprudent||

    Considering the cries of "Satan" in both cases, is there any difference at all? (And although the masses were fewer way back when, they were no less hysterical).

  • Paul||

    Bernard Baran served 22 years on dubious child molestation charges, but the prosecutor who convicted him was promoted to judge.

    Salesman sold refrigerators to Eskimos and got promoted to head of marketing...

  • ||

    Prosecutors enjoy absolute immunity from civil rights lawsuits, even in cases of misconduct that lead to false convictions.

    Does this mean that the only ways the victims of this misconduct will ever achieve closure will be through vigilante justice? Just askin'.

  • ||

    Sounds good to me.

  • Michael Ejercito||

    Does this mean that the only ways the victims of this misconduct will ever achieve closure will be through vigilante justice?


    What is wrong with vigilante justice?

    It was very effective in keeping Yale University Press and Comedy Central from showing images of the prophet Mohammed.

  • Episiarch||

    The prosecutors and politicians are all in the same club. There's no fucking way lying prosecutors will get punished.

  • ||

    Yeah politicians that usually elected by the citizens becuase they pledge to being tough on crime. Which is part of my point.

    It's very much like partisan politics, it's more about the side you are on that what's actually happening. America, in general, wants to be tough on crime and does not want those crime fighters to be treated like the criminals they catch. They are to be honored as heros, not treated like criminals. Sound about right?

    Pick a side Epi, are you for the criminals or crime fighters. ;-)

  • ReAnimator||

    I'll take the criminals by benefit of the doubt.

  • Michael Ejercito||

    There's no fucking way lying prosecutors will get punished.


    Except by vigilante justice.

    Why are we not as willing to engage in vigilantism as Muslims are?

  • ||

    Ah, the Friday Balko nut-punch. A little late this week, but painful as ever.

  • Atabrat||

    I knew Balko's two recent "good news" stories were outliers and he'd get back to the bad-news-beat-downs soon enough.

  • Cold-hearted douche||

    Hate to say it, but this is what happens when you part your hair in the middle.

  • ||

    Ugh. Again. There should be a federal commission appointed to investigate and review every child sex abuse case which mentions daycares, ritual satanic abuse, or repressed memories.

  • ReAnimator||

    Replace federal with private and you may be on to something.

  • William Anderson||

    Forget about federal investigations. Federal prosecutors are even more abusive and dishonest than state prosecutors, if that is possible.

    Let us face it; the USA legal "system" no longer is fit for anything but a Third World country. The United States of Zimbabwe is open for business!

  • ||

    Before I went to law school, I thought judges were worthy of respect and hoped I might one day become one myself. Six years later I've reversed course on that line of thinking. The old saying that a judge is a lawyer who knows a politician is true indeed.

  • ||

    "One Ford defender told the publication that it’s unfair to hold the judge accountable for something he did a quarter century ago."

    Has Ford ever sentenced anyone to 25 years in prison? That's 25 years of accountability.

  • ||

    If you are anywhere near my age you grew up hearing about the horrors of communism and the Soviets and East Germany and so on - the implication being that we were better than those hell holes. Anybody who doesn't choke on the words "liberty and justice for all" is a fool.

  • ||

    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

    This exact argument is used to implicate defendants in domestic violence cases where there is no evidence of abuse. They allege "he knows how to hit without leaving a mark", but never bother proving doing so is actually possible. It's 100% fact-free innuendo.

    This presumably being a learned skill, I've always wondered how I could learn it without leaving a long trail of complaining witnesses or dead bodies. Is there a secret society of men that preserve and hand down this vital information to future generations? Instructors in deep cover who will teach me, for the right fee?

  • ||

    > Is there a secret society of men that preserve and
    > hand down this vital information to future generations?

    The police.

  • ||

    You did understand that entire paragraph was sarcasm, right?

  • ||

    He (?) obviously did. You don't seem to have understood his.

    But that's alright, just think about it some more.

  • Wal||

    A good book about this area is:

    The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (Paperback)
    Elizabeth Loftus , Katherine Ketcham

  • ||

    There was also a good article by Elizabeth Loftus in Skeptical Enquirer Volume 19.2, March / April 1995 on this subject.

  • Christian Louboutin||

    Supposed to attack these head-on and you will find a deep sense of gratification thatwill fuel your happiness.

  • Mike T||

    I'm tried of the "incentives excuse." Absolutely sick of it. It's just like common sense, and the lack thereof: your failure to possess common sense or morality that trumps your ambition is not a mitigating circumstance. The prosecutors whose ambitions are bent by the incentives deserve no mercy. Throw them in prison and let them suffer seven times the pain and loss of liberty they inflicted.

  • ||

    This case, like so many similar ones, is a demonstration of the inescapability of anarchism. As Alfred G. Cuzan points out, you must choose between anarchism for everyone and anarchism as a prerogative of the state.

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  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on.

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  • رش مبيدات||

    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

    This exact argument is used to implicate defendants in domestic violence cases where there is no evidence of abuse. They allege "he knows how to hit without leaving a mark", but never bother proving doing so is actually possible. It's 100% fact-free innuendo.
    شركة تنظيف خزانات بالرياض شركة تنظيف منازل بالرياض
    This presumably being a learned skill, I've always wondered how I could learn it without leaving a long trail of complaining witnesses or dead bodies. Is there a secret society of men that preserve and hand down this vital information to future generations? Instructors in deep

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