The Berkshire County District Attorney’s office has now put most of its eggs in one basket. They are asking the Court to determine whether the testimony of the alleged victims – the only actual “evidence” in this case – is convincing. If it is convincing, they argue, Baran should be freed. If it is not convincing, then he should be sent back to prison.
You read that right. Bizarre as it sounds, this is the argument that they are really making. A rational person would note that the argument was illogical. But legal logic is very different from ordinary logic. Our legal system exists not in the real world, but in Wonderland.
The DA is saying that the videotapes would not have made a difference because the children’s performance in the courtroom was as bad as it was on the videotapes.
First of all, this is not true. When you see the tapes, it is much easier to understand how the testimony was manufactured. You see much that was not obvious in the courtroom.
But the fact does remain: the child testimony was not convincing. (You can read all of it here.)
If the judges really want to salvage this dreadful conviction, they could claim that the in-court testimony was no more convincing than what was on the tapes. They could then conclude that the tapes wouldn’t have helped Baran, and overturn Judge Fecteau’s thoughtful and compassionate decision.
Juries are given the sole power to ascertain facts. If a jury says the sky is red, then the law says it must be red. It doesn’t matter how many experts you bring in to prove that it is blue. The jury has spoken. The sky is red.
The myth, of course, is that juries weigh evidence and give careful consideration to their decisions. And this sometimes happens. There are good juries. They contain good jurors.
But very often juries do not contain good jurors. Juries base their decisions not on the evidence but upon their emotions. They don’t follow their heads. They follow their “hearts.”
Most of the pain and suffering in the world is caused by good people who follow their “hearts.”
My partner Jim and I attended the trial of Paul Shanley. No credible evidence was presented against him. The only evidence was the recovered “repressed memory” of an obviously disturbed individual who had received a large financial settlement for his claims. But the jury followed their “hearts” and convicted Paul Shanley.
I remember a conversation I once had with Bertha, Baran’s mother. I told her that having read the testimony of the children, it was hard for me to fathom how the jury could have convicted. She said something like: “It didn’t matter what they said. I don’t even think they heard what they said. It was how they looked. They were so cute and all dressed up in their Sunday best. Some jurors were crying before they said a word.”
In the words of one juror:
“Waves of hysteria were sweeping the United States over possible abuse of young children in day care facilities. Like so many others, I was horrified. This was my first time as a juror in an actual trial. I am certain that all of the jurors were prejudiced, just as I was, by the climate at that point and also by the appearance of this young man with his weak look which might well have pegged him as a homosexual. I sat in the jury box and wept as tiny children, almost babies, took the stand and told tales, led on by the prosecutor. I was appalled by this, by the prosecutor holding up naked dolls, pointing to genitals and asking these babies to identify what had happened to them … It didn’t occur to me until later that to get children of that age to tell stories, consistent stories, true or false, they must have been repeatedly prepped – by psychologists, parents, prosecutors, all people with some stake in the process and in the outcome. These tiny children were being asked to serve the needs of adults – for money, for vengeance, for justification, for career rewards, and so on and so forth. I think the jurors made their relatively hasty decision to find Baran guilty on the basis of his unpromising background, on the basis of what they had been reading in the newspapers, and definitely on the lack of a real defense by his publicly appointed defense attorney.”
So this juror followed the “heart” and said, “The sky is red.” This juror now knows the sky is blue. But the DA could care less.
I don’t think I would be comfortable with a system in which jurors all came from the upper tiers of society. I agree that it is important that there be no discrimination based on socio-economic class, race, ethnicity, sexual orientation, etc. But I wish there was some discrimination based on intelligence. And by intelligence, I mean the ability to think critically, to weigh evidence, to put personal prejudice aside. In short, by intelligence I mean the ability to serve well on a jury.
Fortunately for Baran, the Courts can decide that the testimony against him was appallingly weak and still grant him his freedom. The judges will learn a great deal from those videotapes that they could not learn from the trial testimony alone. Attorney Jamie Sultan, during the Amirault appeal, said that the juries in those cases only saw the last act of a three-act play. The videotapes supply the missing first two acts. They show how the testimony – admittedly weak and incredible – was manufactured.
When they entire record is examined, the judges will know that Baran is innocent. But appellate courts make no rulings on guilt or innocence. They could claim that the tapes, in their subjective judgment, were no different from the trial testimony which was “validated” by the jury. This might “save” the conviction. They might even get away with it. But we must hope that they will not follow this course.
Judges are human beings. Many of them have consciences. I hope Baran’s three judges have consciences. I hope they will not send an innocent man, a man who has already served almost 22 painful years, back to prison for no good reason other than to “save” a worthless and immoral conviction.
Should they do this, they will prove that Dickens’ Mr. Bumble had it right – “the law is a ass – a idiot.”