When miscarriages of justice occur, prosecutors must answer for actions
TWENTY-NINE YEARS ago, a Berkshire County prosecutor named Daniel A. Ford made at least one awful decision: On the skimpiest evidence he charged a 19-year-old man with multiple counts of child rape. That may not be the worst of it; there are indications he may have played fast and loose with trial rules in order to get a conviction. Although Ford denies he did anything wrong, trial records suggest the defense attorney was unaware of significant exculpatory evidence held by the prosecution. In an atmosphere of homophobia and hysteria, the defendant, an openly gay teenager named Bernard F. Baran Jr., didn’t stand a chance. Convicted, he spent 21 years in prison for crimes he didn’t commit.
The death of Baran last month, at the age of 49, has brought renewed attention to the travesty of his trial and the tragedy of his imprisonment, and rekindled calls for disciplining Ford. Writing on the Globe op-ed page, lawyer Harvey Silverglate, who helped win Baran’s release in 2006, raised the possibility of removing Ford from his current job as a Superior Court judge, a position he has held since 1989.
That’s premature — but Silverglate and Baran’s other supporters are right to seek a full, public inquiry into both the prosecution’s conduct and its decision to try the case in the first place. The decision to release Baran in 2006 did not settle the question of whether Ford and the Berkshire County district attorney Gerard Downing acted appropriately, or whether the Commonwealth has adequate safeguards to prevent such a wrongful conviction again. Reviewing the long-ago prosecution now may seem pointless, since it’ll be difficult to establish facts and Baran will never be able to see the results anyway. But wrongful convictions represent a serious failure of the justice system. To prevent such miscarriages of justice in the future, it’s critical that the state revisit this painful episode. Whatever an investigation reveals about Ford, it’s crucial for the Commonwealth to set the precedent that prosecutors will answer for their actions in cases of wrongful conviction.
The 1985 prosecution took place against a backdrop of hysteria about a supposed wave of sex abuse at day care centers like the one in Pittsfield where Baran worked as a teachers’ aide. From the beginning, the case against Baran was full of warning signs. The mother of the first boy to raise accusations against Baran had previously complained about a gay worker caring for her child, using a slur and expressing the view that gays should not be allowed outside. Videotaped interviews show that other supposed victims were coached into making accusations against Baran after first denying he did anything to them. The first boy to accuse Baran later said it was his mother’s boyfriend that had abused him.
Part of the current dispute is the allegation that Ford and Downing didn’t share the full videotapes with Baran’s lawyer, misled the grand jury by implying there was nothing of note on the removed sections of the tapes, and didn’t alert the lawyer to the child’s claim against the mother’s boyfriend. Those would indeed be serious violations. The appeals court, when it upheld Baran’s release in 2009, didn’t rule on those questions, but pointedly suggested that the prosecution may have acted inappropriately. After the 2009 ruling, the Office of Bar Counsel reportedly investigated Ford but took no action and did not release any findings. Getting to the bottom of what happened might help determine whether the solution that Silverglate has proposed — an open-file system, in which prosecutors must give defense access to their files — would prevent such an outcome from happening again.
No matter what Ford shared with the defense lawyer, there’s a broader question about his decision to charge Baran in the first place. Ford and Downing certainly knew themselves that the case rested on dubious testimony. Prosecutors are supposed to seek justice and apply good judgment, not just score convictions by any means. So why did he bring it?
Looking back at the case would serve a bigger purpose than score-settling. Wrongful convictions like that of Baran endanger trust in the whole judicial system. The Supreme Judicial Court, in its role as the general safeguard of the integrity of the courts, should launch a special inquiry into how justice failed during the hysteria of the 1980s. It must also look at why the Berkshire County district attorney was able to conceal the tapes for so long after the trial, even claiming the tapes were lost. (The tapes only surfaced after Downing died.) That’s also a question that the next state attorney general may want to ask, while also moving to finally expunge Baran’s criminal record.
The fact that Ford is now a judge is, ultimately, a coincidence. He could have gone on to be a pilot or a professor, and the concerns about his actions in the 1980s would be just as relevant today. Massachusetts has been through witch hunts before, and later sought to learn from those mistakes. But Ford’s actions have never been subject of a full public investigation. It will take some courage, but the Supreme Judicial Court should investigate what happened in Pittsfield and put in place whatever trial rules it would take to prevent such a travesty from happening again.