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opinion | Harvey Silverglate

Justice system failed Bernard Baran

There should be consequences

Bernard Baran was freed pending new trial on June 30, 2006, after serving 21 years in prison for child rape. Three years later, all charges were dropped. Baran died Sept. 1. Associated press/Berkshire Eagle, Ben Garver/Associated Press

Bernard Baran of Pittsfield died a free man on Sept. 1 at age 49. But for an act of God, he would likely have died in prison, forever deemed guilty of raping children at a day care center where he’d worked.

Convicted amid the national panic over supposed sexual abuse of preschool children, Baran fell victim to homophobia, hysteria, and arguable prosecutorial misconduct. While many now recognize these prosecutions as modern-day witch hunts, those responsible for his incarceration remain unapologetic and unpunished.

Baran’s case is similar to others of that era in Massachusetts and nationwide. (Massachusetts conducted at least two such prosecutions: Baran’s and that of Violet Amirault’s family who ran Fells Acres Day Care Center in Malden.) These convictions hinged on little more than the coerced testimonies of toddlers coached by social workers and overseen by prosecutors.

In 1984, Baran was an out-of-the-closet 19-year-old who worked at the Early Childhood Development Center in Pittsfield when a parent-couple complained about having a homosexual taking care of their child. Within a month, as management discussed what to do with the “Bernie problem,” the parents accused Baran of molesting their boy. Baran proved an easy target for accusations of pedophilia. Soon abuse allegations spread to other families.

Tellingly, Baran’s charges solidified only after law enforcement officers and social workers “interviewed” (or coached) the children. Video recordings of these sessions show the children initially denied wrongdoing on Baran’s part. However, the children eventually capitulated to the suggestive questioning that used anatomically correct dolls and other now-discredited techniques. The children ultimately offered statements that, when considered in isolation, proved sufficient to indict Baran.


The trial jury never saw these interview tapes, edited or unedited. Instead, the jurors heard the children testify in person, reciting their by-then-practiced abuse narratives. The unedited tapes include numerous moments that would have dramatically impeached their testimony, including segments where the children repeatedly deny Baran harmed them.

Those tapes surfaced thanks to a snowstorm and the sudden death of District Attorney Gerard Downing, one of Baran’s original trial prosecutors. Downing suffered a heart attack while shoveling his driveway in December 2003, three years after Baran’s post-conviction lawyers filed the first of many discovery requests seeking the videotapes. They were finally unearthed in September 2004 by Downing’s successor, recently reelected Berkshire District Attorney David Capeless. The tapes would ultimately furnish the primary basis for vacating Baran’s conviction.


While Baran languished in prison, one of the prosecutors who incarcerated him — Downing’s co-counsel Daniel Ford — was rewarded with a Superior Court judgeship that he holds today.

The surfacing of the unedited tapes assured Baran’s release. But the post-conviction hearing judge and the Appeals Court judges who vacated Baran’s conviction in 2009 were unable to determine whether trial prosecutor (now judge) Ford intentionally buried the exculpatory unedited tapes (which would be a constitutional violation of suppression of evidence). Or, instead, whether Baran’s trial counsel had access to the tapes but neglected to present them to the jury (a different constitutional defect — ineffective assistance of counsel).

Berkshire County District Attorney Gerard Downing, one of Baran’s original trial prosecutors, died in 2004. His successor unearthed videotapes that exonerated Baran.<credit><p>Associated press/Berkshire Eagle, Ben Garver</p> </credit>

Judge Ford, through his lawyer, claims that the unedited interview tapes were in fact offered to Baran’s trial lawyer, who chose not to use them at trial. The Appeals Court judges overturned the verdict on the grounds of ineffective counsel alone, though not without noting ominously that “while the record does not settle the question of whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention.” Judge Ford’s lawyer says that at a pretrial hearing, then-prosecutor Ford “offered to play all unedited tapes for defense counsel and the trial judge,” and that he “cannot explain why this transcript was not given to the appeals court.” Ford’s lawyer also claims that when the appeals court opinion was published, the Office of Bar Counsel of the state’s lawyer disciplinary body opened an “independent inquiry” but then “took no action.” This inquiry, as all such proceedings, was confidential and remains closed.


This judicial half-measure freed Baran while avoiding a more searching inquiry into possible prosecutorial misconduct that might (or might not) have disgraced a sitting judge, tarnished the reputation of a deceased district attorney, and put in doubt the judgment of the present district attorney for pursuing years of litigation, during much of which Baran rotted in prison.

Massachusetts still has not reformed its discovery rules to prevent convictions achieved through suppression of exculpatory evidence. Our justice system cannot rely on what is effectively a prosecutor’s honor code. An “open file discovery” policy — in which prosecutors share all files with defense counsel — must be implemented. Furthermore, prosecutors who commit these violations should pay for, rather than benefit from, their actions.

Judge Ford has not been publicly investigated, much less removed from the bench for leading an unjust prosecution that ruined an innocent young man’s life. The Commonwealth might begin to rectify this systemic failing by holding a searching and public investigation to resolve the question posed by the appeals court. Both Judge Ford and the memory of Bernard Baran deserve that this matter be resolved, once and for all, in a public forum.


Our justice system failed Baran. The coda of Baran’s life, 22 years of which he spent in prison, should be marked by long-needed reforms. It should not have required an act of God to free Baran. Defendants should be able to depend on justice, not divine intervention.

Harvey Silverglate was a member of Bernard Baran’s post-conviction legal team, along with attorneys John Swomley, Eric Tennen, and Pamela Nicholson. Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent,” is a board of advisers member of the National Center for Reason and Justice, which sponsored the re-examination of Baran’s conviction.