Archive for February, 2008

The Baran Jury Failed Us All

Sunday, February 17th, 2008

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.”

-Bob Chatelle

Bob Halsey's Birthday

Saturday, February 16th, 2008

Dear Friend of Justice,

One of my lost posts to the old FOJ list was a reminder that Bob Halsey’s birthday is February 18th. I was hoping that some of you might send him cards. The notice is now short, but I know he would be delighted to receive a belated card.

Bob’s case is one of the saddest sponsored by the National Center for Reason and Justice. Outlandish and impossible claims were manufactured against him by many of the same Berkshire County villains who railroaded Bernard Baran, Bruce Clairmont, and others. You can read more about Bob at

I’m not sure how old Bob will be. He’s in his late 70s and in poor health. His impoverished wife, Mary, now nearly blind, has been in a nursing home for years.

One thing is certain: Bob Halsey, an innocent man, will die in prison.

Here is Bob’s address:

Robert C. Halsey
Unit A1
PO Box 1218
Shirley, MA 01464

-Bob Chatelle

Baran Appeals Court Hearing Report

Tuesday, February 12th, 2008

This morning the Appeals Court of Massachusetts held a hearing in the Baran case. In June of 2006, Judge Francis Fecteau ordered a new trial for Bernard Baran. Berkshire County DA David Capeless has appealed that decision. At today’s session, oral arguments for and against Capeless’s appeal were presented before a three-judge panel.

The hearing took place in Boston in Courtroom Three of the John Adams Courthouse. It began around 11 a.m. The courtroom was filled with Baran supporters. I believe a number who came did not get in.

The three judges were Fernande R.V. Duffly, Barbara A. Lenk, and Mark V. Green. Both sides were aggressively questioned by the panel. I have no prediction about what their decision will be. But I am cautiously optimistic.

DA Capeless began by saying that “23 years ago five young children testified that a 19-year-old daycare worker,” Bernard Baran, had sexually abused them, and that their parents had testified about their behavior, implying that their behavior was indicative of sexual abuse. He said that corroborative medical evidence had been presented by a doctor and that the daycare staff had testified about “accessibility of the children and opportunities for abuse.” He said that there was a sixth child, who had tested positive for gonorrhea, whose case had been thrown out.

Capeless stated that the verdict had been upheld on direct appeal. He said that over twenty years later a judge who had not been the trial judge [Judge Fecteau] had ordered a new trial based on ineffective assistance of counsel. Capeless called Fecteau’s ruling “flawed,” citing his “speculation about facts not in the record.”

At this point Judge Duffly intervened, and basically told Capeless to cut to the chase. She wanted him to talk about the videotapes.

Capeless urged the judges to read the reports of prior disclosure before viewing the tapes. He said that the tapes were not intended to be forensic interviews. He argued that Fecteau had ignored what the tapes really were. Capeless said that “edited” versions of the videotapes were shown to the Grand Jury.

Judge Duffly stated that all of these prior disclosures were made by adults, summarizing what the children had said. She pointed out that the tapes depict the “first time we see a child’s actual words.”

Judge Lenk asked, “Does it matter what the purpose of the tapes was?” The crucial question is, “Were children coached?” Fecteau believed that the tapes show coaching and adults cajoling children into making accusations.

Capeless repeated his oft-made, highly fallacious argument: The tapes don’t matter because the first interviews are the most important and the tapes don’t show the first interviews.

Judge Duffly astutely asked, “How does it happen that there was no ambiguity in the earlier statements?” Her point was that overtime we would expect the children’s statements to become more consistent, not less. Duffly also asked, “What about the points where the children denied?”

Judge Lenk pointed out that the law has changed significantly in the last 20 years and that much has since been learned about the psychology of children. She asked, “What are we to do about changes in the law?”She also pointed out that the use of anatomically correct dolls is now very much frowned upon.

Judge Green noted that if you remove the credibility of the children, there is no independent forensic evidence. Capeless claimed that there was the children’s behavior and that there was corroborating testimony. Green pointed out that the corroborating testimony just brought us back to the credibility problem.

[Note: in my opinion, the issue is not credibility but reliability. Legally, these are two quite different issues. It bothers me that even judges confuse them.]

The oral arguments for the Baran team were presented by Eric Tennen, who did a great deal of the work on the new-trial motion.

Eric began by pointing out that while a lot has changed in the past 20 years, one important thing that has not changed: a defendant’s right to effective counsel, which Bernard Baran did not have.

The judges very quickly brought the focus back to the videotapes.

Capeless has argued that the behavior of the children on the videotapes was consistent with their testimony in court. In court, they also denied abuse, were inconsistent, etc. But the jury believed the accusations anyway. Since the jury was stupid enough to believe the ridiculous testimony of these children, would it have mattered if they had seen the videotapes? [Note: this is not quite how the argument was stated. But it is what it boils down to.]

This is a fair and important question. And I wish Eric had been more forceful in responding to it.

He did state that the prosecutor had explained the weakness of the children’s testimony by their being intimidated by being in court and in the presence of Baran. The tapes would have shown the same behavior in a relaxed setting in which Baran was not present.

Judge Green suggested that a more important question might have been the effectiveness of the cross-examination of these children by Baran’s attorney.

Eric agreed that this was a valid issue, but that he thought the tapes were still most important. The interrogators’ behavior on the tape went a lot further that what happened at trial.

Baran’s lawyers have also argued that Baran’s attorney was ineffective in not hiring an expert on the reliability and credibility of children’s testimony.

Judge Lenk then questioned whether an expert could have been that helpful, given that much less was known at the time about the dangers of suggestive interviewing questions.

Eric then rightly pointed out that this question had already been decided in the Amirault case, where the Massachusetts Supreme Judicial Court had ruled that in the early 80s it was known that suggestive interviewing of children produces unreliable results.

This was, of course, a stupid, immoral, cowardly, and politically motivated ruling on the part of the Court. Nevertheless, it is a binding precedent on the Appeals Court. If the SJC says that the science existed in the early 80s, then Baran’s attorney should have hired an expert.

Eric made the point that the prosecutor’s behavior at trial was nowhere as egregious as the behavior shown on the tapes.

< p class="MsoNormal" style="margin-bottom:6pt;">Judge Lenk asked whether the effect of suggestive interviewing is cumulative. “Does it build?” she asked. Is it “people-pleasing behavior learned by the children?”

The lawyers held a very brief post mortem for Baran’s supporters. John Swomley felt good about the fact that the judges very pointedly questioned DA Capeless. As for the importance of the tapes, he felt that two of the judges got it, but that he was concerned that there might be some skepticism in the mind of Judge Green. He said that the argument would be tightened in a letter to the court.

Harvey Silverglate said he thought that the single most important question asked was the one that Eric had answered by referring to the Amirault decision.

At this time, none of the judges have seen the videotapes or read the transcripts of the hearings on the new-trial motions. All they have read is Fecteau’s decision, Capeless’s appeal, and Baran’s response. The Court will not hand down a ruling until all of this material has been reviewed.

Let us hope that these three judges see in those tapes what every rational observer thus far has seen.

-Bob Chatelle

Welcome to the Friends of Justice Blog

Sunday, February 10th, 2008

Dear Friend of Justice,

For many years I have operated Friends of Justice as a mailing list. But I have decided to try to migrate it to a blog.

For one thing, a blog is free and the mailing list is not. For another, I think a blog will be more convenient for the subscribers.

If you look to the right, you will see two ways of subscribing. You may choose one or both. (Or you may choose to just check in on this blog from time to time without subscribing.) But I hope most of you will choose to subscribe.

Once your subscription is confirmed, I will remove you from the old FOJ mailing list.

If you choose to subscribe by email, you will receive the posts by email as you always have.

If you already subscribe to a number of blogs, you may prefer to subscribe via a reader, such as Google Reader. If you don’t know what a reader is, you probably don’t want this option.

During the transition period, which may last a few months, I will use the old FOJ mailing list to alert you to new blog posts.

Thank you for your continuing concern for justice.

-Bob Chatelle