Friends of Justice

Almost exactly three years ago —on June 22, 2006 —I was in a courtroom with Bernard Baran. On June 16^th of that year, Judge Francis Fecteau had granted Baran’s motion for new trial. On the 22^nd, Fecteau granted Baran bail. Baran had been brought into that courtroom in handcuffs and shackles and would leave the same way. But we knew he would soon be free.

The next time we were in a courtroom together was on February 12^th, 2008. Berkshire County DA David Capeless had appealed Fecteau’s ruling and was determined to send Baran back to prison. The Massachusetts Appeals Court was holding a hearing on Capeless’s motion. While Baran was not in handcuffs and shackles, he was wearing a GPS bracelet and living under the sort of severe restrictions that now burden those sex offenders considered the most dangerous. He was far from a free man.

On May 15^th 2009, Baran received a favorable ruling from the Appeals Court that was even stronger than the decision handed down by Fecteau. All charges were finally dropped on June 9th.

This afternoon I was again in a courtroom with Baran. But this time, someone else was the defendant.

Baran last January filed suit against his previous lawyers. The defendants are the estate of Leonard Conway (his trial lawyer), his appellate attorney (David Burbank), and Burbank’s firm at the time, Cain, Hibbard, Myers, and Cook.

Cain Hibbard has filed a motion to dismiss the lawsuit, arguing that the Statute of Limitations prevents Baran from acting. Today’s hearing was on that motion. Cain Hibbard was represented by a Boston law firm hired by their insurance company. Baran was represented by John Swomley and Eric Tennen. The Judge was Leila Kern.

Judge Kern began the proceeding by stating that “Plaintiff has been horrifically served by the legal profession and by the prosecutors.” We were encouraged (but a bit surprised) by this remark. Baran even turned to me for confirmation that he was the plaintiff in the case. Kern also went on to make clear that her ruling would have to be in compliance with the Statute of Limitations.

Judge Kern, unfortunately, is very soft spoken and I couldn’t hear much of what she said. But I think I understood the gist of her remarks throughout the proceedings.

The insurance-company lawyer (who in my opinion did his job professionally but without enthusiasm) first argued that Baran would have had to file his claim against the trial lawyers within three years of his conviction and against his appellate lawyers within three years of the denial of his direct appeal.

The judge commented that requiring this of someone convicted by jury and serving a sentence would place a considerable burden on the plaintiff.

The insurance-company lawyer argued that there is no legal requirement for exoneration before someone can file a legal malpractice suit. He cited the example of a lawyer who neglects to bring a plea bargain to a client and the client ends up serving a more sever sentence as a result. In such a case the client has the right to sue without exoneration.

The insurance-company lawyer went on to argue that even if exoneration were held necessary, the Statute of Limitations would have started tolling on June 16, 2006, the date of Fecteau’s ruling.

Judge Kern said that the Commonwealth had appealed Fecteau’s ruling within the allotted ten-day window. She asked whether Baran would have needed to file his suit within that ten-day period. The lawyer countered that Baran could have filed at any time before the Appeals Court ruled.

He also argued the importance of the Statute of Limitations in protecting defendants from countering a lawsuit caused by actions that occurred decades ago.

Eric Tennen argued that the essential question in the case was: When did the damages accrue? One cannot bring a lawsuit if there have been no damages. And there were no legally provable damages until Baran was exonerated. Tennen argued that exoneration was quite different from post-conviction relief. Fecteau’s ruling did not exonerate Baran. Baran was still under indictment and these indictments were not dropped by Capeless until June 9, 2009. Only at that time did Baran have legally provable damages.

Tennen also pointed out that in cases dealing with events that happened decades ago the discovery burden weighs heavier on the plaintiff because it is the plaintiff that has the burden of proof.

I am not sure how long Judge Kern will take to rule. My impression was that she is sincerely outraged about what was done to Bernard Baran. But it is also my impression that her ruling will be carefully crafted to withstand the scrutiny of appellate review.

However she rules, I’m sure the matter will almost certainly be referred to the Appeals Court. And if the Appeals Court permits Baran’s suit to proceed, I predict that the insurance-company lawyers will offer a settlement.

Baran has suffered more than most people can imagine. There’s not enough money in the world to compensate him and his family for the pain the Commonwealth of Massachusetts cruelly inflicted upon them. We can hope at least that the terrible financial burdens that now weigh upon him will be somewhat alleviated.

Baran has also filed for compensation by the Commonwealth under a Massachusetts law that provides payment to those wrongfully convicted. These efforts are being vigorously opposed by Massachusetts Attorney General Martha Coakley.