Friends of Justice

Dear Friend of Justice,

This morning Berkshire County DA David Capeless finally announced that he would no longer pursue the Baran case. Here is a short article posted at the Berkshire Eagle web site: http://www.berkshireeagle.com/ci_12552695

When I spoke with Bee a little while ago, he was shedding some very well-earned tears. He and his family have been living this nightmare for almost a quarter of a century. Jim D’Entremont and I are relative newcomers to the case. We’ve only been involved for 11 years.

My mind is racing.

One question that pops into mind: Does this mean that the system worked?

My first inclination is to say, “Hell, no! The system didn’t work. We worked. We worked damn hard fighting the power of a hearltess macchine.”

But this wouldn’t give credit to those people in the system who did work, and who worked very hard. I think especially of Judges Fecteau, Lenk, Duffly and Green and their staffs. There was a tremendous amout of material. They read it all, they read it thoughtfully, and they responded with two beautiful decisions. I am most grateful. Whenever I’m tempted to think too unkindly of judges, I will do my best to remember these.

Nevertheless, this hard-won victory proves that there are very serious things wrong with our judicial system.

Ten years ago, I read the Baran trial transcript for the first time. It is appalling. The injustice was so blatant, that I naively thought it would not take that long to free him. Boy was I wrong.

You can’t fight power without money. And we had none. So we started to raise it. To date we’ve raised about $320,000. We were lucky to find a few big donors. But most of that came from concerned citizens of limited means. This is what it costs when ordinary people are forced to do the job that should be done by the government.

Our expenses, however, thus far total $589,000. This is just what has been actually billed. A great many services were donated. All of our expert witnesses, for example, were not paid a dime. The lawyers donated time. And the lawyers know that most of their bill will never be paid.

Should it really take citizens over ten years and over half a million dollars to right a greivous wrong committed by their own government?

I would like to think that the Baran case might eventually lead to some meaningful judicial reform. But I’m not holding my breath. That would require a lot  of work from good citizens.

Democracy requires more than voting — and far too few Americans even do that. Democracy requires that citizens inform themselves, work for needed reforms, and hold their government accountable for its actions.

What comes of this is not up to me. It’s up to you.

As for me, as soon as we catch our breath, we are going to savor this victory and celebrate it.

-Bob Chatelle

Dear Friend of Justice,

Here is a link to a Berkshire Eagle article of a few days ago: http://www.berkshireeagle.com/editorials/ci_12508095?source=email

David Capeless has until June 15th to appeal the Appellate Court decision.  Let us hope he finally does the sensible thing and brings this case to an end.

Unfortunately, the powers that be in Berkshire County seem to operate without restraint by morality or reason. But we can at least hope.

-Bob

Dear Friend of Justice,

This letter appears in today’s Berkshire Eagle: http://www.berkshireeagle.com/letters/ci_12449096

-Bob Chatelle

Dear Friend of Justice,

Jim D’Entremont and I first became aware of the Baran case in 1995, but all we knew about it was the information found on Jonathan Harris’s web site. Our involvement really began in June of 1998, at the urging of our friend, Debbie Nathan. On the day that Judge Borenstein issued his ruling in the Amirault case, Debbie emailed us:

Bob, with this ruling I hope someone will be inspired to help Bernie Baran: as you know, he’s the first daycare worker convicted in a ritual abuse case — also out of Massachusetts — and the reason it started apparently is because he “came out” in his little town and announced his homosexuality at the age of 18. The guy has now been locked up 13 years and is going to rot behind bars unless someone takes an interest in his case. Now might be the time to start.

It took us another year to get essential documents in the case. When we read them, we were appalled. We were especially appalled at the conduct of the prosecutor, Daniel A. Ford.

Ford was ambitious and ruthless. He used the Baran case to make his career.  This strategy was successful. Governor Michael Dukakis made him a Superior Court Judge twenty years ago. He remains a judge today. He is an important member of the power structure of Berkshire County.

Thus far, criticism of Ford has been very muted. He is almost never mentioned by name in press accounts of the Baran case. Judge Fecteau made no ruling on the charges of prosecutorial misconduct when he granted Baran a new trial. I do not fault Fecteau for this. I believe he was doing what he thought would be most effective in achieving the ends of justice. Criticizing a brother judge could have eventually caused the waters to be muddied and thus blunted the effectiveness of his excellent decision.

But the Massachusetts Appeals Court has decided that the time has finally come to start talking about the elephant that’s been hiding under the rug.

The Court needed to say nothing about prosecutorial misconduct, because no ruling had been made on that issue.  Never the less, they found they had quite a bit to say.

Several things troubled them:

1. Dan Ford deliberately withheld from the defense the videotapes of the child interviews — interviews which contained a huge mass of exculpatory material.
2. Dan Ford deliberately withheld from the defense police reports and DSS materials indicating that at least two of the children were very likely sexually abused by someone other than Baran. [Not surprisingly, no charges were ever brought against these men, who were very likely real child abusers.]
3. Dan Ford deliberately misled the Grand Jury by showing them a composite videotape with all exculpatory material excised.
4. Dan Ford turned over material from his case files to the law firm representing the mother of one of the alleged victims.

I think that bill of indictment should be sufficient to have Dan Ford impeached and disbarred, if not sent to prison for obstruction of justice.

A fifth charge is intimidation of potential defense witnesses. I think this affidavit gives us a good glimpse of Judge Ford’s moral character. (I believe there were other potential witnesses silenced by threats from Dan Ford as well.)

I suppose there are some who would excuse Dan’s Ford misbehavior by saying that he truly believed in Baran’s guilt and was sincerely interested in protecting children. But don’t believe that.

After Ford rested his case, he offered Baran the chance to plead guilty in exchange for a five-year sentence. Half would be served at the county jail and half at a low-security facility called  The Sherriff’s Home. (He told Baran that if Baran did not accept this offer, Ford would make sure that Baran spent his entire life in prison.) Would Ford have made such an offer to someone he considered guilty? Would any guilty person turn down such an offer? Ford wanted his conviction and he didn’t care how he got it. It was the very first conviction that occurred during the 80’s daycare hysteria.

I believe that the Appeals Court has fired a warning shot across Dan Ford’s bow.

It will be interesting to see how he — and his chief protector, DA David Capeless –will respond.

But however they respond, the Baran case is now over. Capeless might appeal and the SJC might decide to hear it. But I can see no way the SJC could — or would — invalidate the two excellent decisions written by Judge Fecteau and by the Massachusetts Appeals Court. And there is no way this case could ever be retried.

Bernard Baran is not a criminal. In my opinion, Dan Ford is.

But  the elephant’s days of hiding under the rug are coming to an end.

-Bob Chatelle

Dear Friend of Justice,

Bee Baran just phoned us. The Appeals Court has upheld Judge Fecteau’s decision and affirmed his right to a new trial.

I read the decision, but very quickly. it strikes me as very strong. Here it is:  Appeals Court Decision.

And here is the conclusion:

IV. Conclusion. We do not lightly affirm the order granting a new trial. For that reason, we have painstakingly examined the record, the motion judge’s decision, and the legal issues on which it is based. The charged offenses are grave and we are mindful that the passage of so much time will impose heavy burdens on all concerned in the event of a retrial.(55) At the same time, it cannot be said that the defendant received anything close to a fair trial. Preserving public confidence in the integrity of our system of justice must be our paramount concern notwithstanding the costs our decision today might occasion. “Our desire for finality should not eclipse our concern that in our courts justice not miscarry.” Commonwealth v. Amirault, 424 Mass. at 660 (O’Connor, J., dissenting).

The motion judge did not abuse his discretion in granting the defendant a new trial and vacating the convictions and sentences.

-Bob Chatelle

Dear Friend of Justice,

I fear I spoke too soon. In a more complete story, it was pointed out that there is a footnote in the decision giving judges the discretion to impose the bracelet.

Baran’s conditions are determined by Judge Jeffrey Locke, a Mitt Romney appointee and a truly terrible judge, even by Massachusetts standards.

-Bob Chatelle

Dear Friend of Justice,

Bernard Baran was released nearly three years ago, although his case is still not resolved. (The Appeals Court has been sitting on it for nearly 15 months now.)

Baran was released under obnoxious restrictions, including unreasonable curfews and the requirement that he wear a GPS monitoring bracelet. The GPS device has caused him a lot of grief, partly because the technology really doesn’t work very well.

Well, we received some great news today. The Massachusetts Supreme Judicial Court has ruled that monitoring devices can only be required for people who have been convicted of a crime. Since Baran’s conviction was thrown out three years ago, my presumption is that the bracelet will come off soon.

See http://www.boston.com/news/local/breaking_news/2009/05/high_court_over.html

I will keep you posted on developments.

-Bob Chatelle