Friends of Justice

2. Prosecutorial misconduct. The motion judge did not address the defendant’s contention that prosecutorial misconduct independently warranted a new trial, see Commonwealth v. Smith, 387 Mass. at 912, and made few findings relevant to the issue. In his motion, the defendant had called attention to prosecutorial vouching for government witnesses, improper closing argument, the failure to disclose significant exculpatory evidence in the government’s possession, and intentionally presenting false and misleading evidence to the grand jury. Notwithstanding the absence of findings, the record provides support for certain of these contentions, as we have already noted in our discussion of vouching and improper argument. The record is less clear on the remaining points, though nonetheless troubling in certain respects.

While the record does not settle the question whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention, e.g., the trial prosecutor’s provision, after trial was underway, of edited rather than unedited tapes of Boy C’s interview as well as the prosecutor’s recognition that what trial counsel had in his possession and reviewed during trial were the edited videotapes.(51) The unedited tapes, evaluated in the context of the entire record, are exculpatory and material insofar as they “create[] a reasonable doubt that did not otherwise exist.” Commonwealth v. Jackson, 388 Mass. 98, 110 (1983), quoting from United States v. Agurs, 427 U.S. 97, 112 (1976). See Brady v. Maryland, 373 U.S. 83 (1963). The unedited tapes reveal significant vacillation and uncertainty on the part of many, if not all, of the children interviewed, as well as considerable material from which it could be inferred that the children’s testimony was coached. Particularly powerful are the numerous instances in which various complainants deny that the defendant had engaged in any misconduct. At a minimum, these tapes would have provided significant grist for impeachment of the children’s testimony as well as of those who had interviewed them.

Also troubling in this regard is the prosecutor’s apparent failure to produce various police reports and other materials that, among other things, might have supported the inference that one or more of the complainants had been sexually abused by another — evidence that might have been used either for impeachment or to rebut allegations of age-inappropriate sexual knowledge.(52) See generally Banks v. Dretke, 540 U.S. 668, 696 (2004) (“A rule . . . declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process”).

As to the grand jury presentment, the motion judge found that only a composite videotape, containing edited versions of the interviews, was shown to the grand jury. Our review of the composite tape and comparison of it to the unedited counterparts reveals a somewhat distorted portrayal of the children’s allegations, the composite tape omitting significant exculpatory content. As the motion judge stated in his memorandum and order:

“All [of] the edited versions [shown to the grand jury] omit statements of denial and statements indicative of suggestiveness . . . . The unedited versions [of the videotapes] contain statements in which the children deny that Mr. Baran had done anything to them and statements where they accuse other persons of abuse. They also contain[] statements which accuse[] other people of witnessing these alleged acts — evidence which counsel could have used to . . . [challenge] the veracity of the allegations.”

The motion judge offered numerous illustrative examples culled from the transcripts of the unedited videotapes, including the following excerpt from the interview with Boy A,(53) which was omitted from the grand jury version:

Q.: “[C]ould [you] tell me a little bit more about what Bernie did to you.”

A.: “He didn’t do nothing.”

Q.: “Yeah. I know, you showed me. You showed me where he pulled down your pee pee stick.”

A.: “He didn’t now.”

Q.: “He didn’t do it now, though. Did he, did he do it more than one time, do you know?”

A.: “No.”

Father: “No, you’re a good kid. So can you tell her if Bernie said anything, or if you said anything?”

A.: “I don’t know.”

Q.: “You don’t know. Okay. Maybe you’ll remember some other time and you can tell me. Maybe you don’t remember right now. Maybe it will come back to you, what Bernie said to you. When you went to the doctor yesterday, was your pee pee okay?”

A.: “Yup.”

The motion judge also provided this example from Boy D’s interview, which was likewise omitted from the grand jury version:

Q.: “Okay. We were talking about when you went to ECDC, right [boy nods yes], do you remember when you were there a long time ago [boy nods yes], do you remember being touched with bad touch? [Boy nods yes.] Yeah? Who touched you [i]n a bad touch way?”

A.: “[A classmate].”

Q.: “[Your classmate] did? Do you remember any big people, adult people who touched [another classmate] in a bad way that made him feel kind of funny inside, like that person shouldn’t do that to me?”

A.: “Mary.”

Q.: “Are you sure it was Mary? [Boy nods yes.] Yeah?”

These examples, as well as others cited by the motion judge, appear typical of the type of material omitted from the composite videotape presented to the grand jury. Compare Commonwealth v. Fleury, 417 Mass. 810, 817 (1994).

The defendant also points to evidence (see notes 21 and 24, supra) that the trial prosecutor, before trial, turned over certain material from his case files to the law firm representing Girl E and her mother, the same law firm that later represented Baran on direct appeal.