Wednesday, March 20, 2013

Wrongly Jailed: Bernard Baran's Story

Bernard Baran was released from jail after nearly 22 years, but now waits for his record to be expunged

Since late 1984 when the first accusation of sexual misconduct of a child fell upon a then 19-year-old gay high school dropout, Bernard F. Baran, the now 47-year-old has adamantly maintained his innocence. Because of mass hysteria of the '80s surrounding homosexuality, Baran was arrested, convicted and sentenced in 1985 to two concurrent life terms in prison. Twenty-nine years later, he is out of prison, but still branded with a dark stigma.

"I could have pled guilty and served a lesser sentence but as a gay, proud man I wasn't going to do it," Baran told EDGE in a recent interview.

After spending 21 years in constant fear for his life, being beaten, raped, verbally assaulted and shuffled from penitentiary to penitentiary, Baran was conditionally released in 2006 (monitor restriction, barred from leaving the state, home curfew) when hidden evidence and inflammatory misconduct came to light, overturning his conviction. While he regained his freedom seven years ago, Bernie continues working to wipe the slate clean.

There were so many days, weeks, months when minute to minute he felt nothing but his life ticking away, evoking suicidal thoughts, Baran confessed, saying, "What got me through it all was the love and support of my mother and family, but most importantly was knowing in my heart the truth would come out."

The truth did come out, but without amends. The accusations were a witch hunt. The trial was a mockery. The assistant district attorney Daniel Ford's actions throughout the trial were questionable.

Baran was a teacher's aide at the Early Childhood Development Center in Pittsfield, Massachusetts. Allegations of sexual abuse surfaced as parents learned of his sexual orientation. By the time of his trial, six alleged victims, both boys and girls, had come forth with accusations goaded by their parents, psychologists and the prosecution. Refuted interview techniques, such as using puppets to emulate abuse, were used to lead false testimony. Though several of the children's accusations were either recanted or unconfirmed in court, the jury was not swayed, finding Baran guilty on all counts.

The courtroom was closed during testimonies of the children, violating the rights of their accused to a public trial. According to Baran, an "expert" witness for the prosecution, a child psychologist, was years later learned to be unqualified to testify for not holding a doctorate in her professional field.

Bernard Baran was a 19-year-old gay high school dropout when he was accused of child abuse  
Ford, now a sitting superior court judge, withheld unedited interview tapes in which some alleged victims denied Baran's involvement in any molestation taken upon them. Those same tapes apparently went missing for years, finally resurfacing in 2004. Ford's bias, anti-gay and purposely-misplaced rhetoric during the trial exploited the jurors' fears surrounding homosexuality.

After Baran's conviction was overturned, questions arose regarding legal retribution against Ford. But Eric Tennen, an attorney for Baran, told EDGE earlier this month that there will not be any legal repercussions for Ford's apparent misconduct.

"There is no litigation planned against Daniel Ford because prosecutors enjoy absolute immunity for their conduct as prosecutors," Tennen said. "With some small exceptions -- none applicable here -- we would have no ability to sue him for anything he did in the prosecution of Mr. Baran."

Baran was released from prison pending the appeal of his motion for a new trial. The appeals court did not ultimately decide his case until 2009. Only then could he file a civil lawsuit seeking compensation, in which he did so, agreeing to a settlement with the Commonwealth in 2012 in the sum of $400,000.

Though Baran settled, he also stipulated with the court to exercise the right to file for expungement, which he also did in late 2012. The Commonwealth strictly opposed his motion, saying Baran chose to waive his right to have a jury reach a "judgment in his favor," instead, voluntarily settling for money.

This opposition is being upheld by Attorney General Martha Coakley, and on Feb. 26, 2013, a hearing was held at the Suffolk Superior Court as to the matter of Expungement of Records.

"The judge did not decide anything on the 26th," Tennen told EDGE. "She took the matter under advisement. Baran settled the matter with the state. Typically, when that happens, you jointly dismiss the case because there is nothing left to do. However, we specifically left open the issue of expungement. And now we are raising it."

Tennen said that the Commonwealth has argued that they first need a judgment in Baran's favor (according to the statute) and since that is not possible without a trial, they cannot ask for expungement.

"It seems like a horrible rule as a matter of fairness and policy," said Tennen. "We argued the judge had the inherent authority to enter that limited judgment now ordering expungement."

Baran is fearful the decision will not end up in his favor. "This is a new judge on the bench and they [new judges] don't like to make big decisions," Bernie said. "They [the system] took everything from me. They could at least show some humanity and common sense."

Baran is currently living in Woburn, suffering from chronic pancreatitis that hinders his ability to work. He occasionally speaks at Suffolk College about wrongful convictions. And though he calls the past behavior of those that contributed to his incarceration "disgusting," he also said this tragedy is kind of a blessing. It brought powerful people such as John Swomley, Harvey Silverglate, Bob Chatelle and the National Center for Justice and Reason to become advocates for innocent men who happen to be gay.
by Tony Hobday
EDGE Contributor

1 comment:

Anonymous said...

Sadly, we are seeing more and more of this surfacing across the country. And not just new DNA evidence that eliminates convicted people or points to the truly guilty, but plenty of prosecutorial misconduct. It seems that many Attorneys General, District Attorneys, and/or Commonwealth Attorneys are not out for justice, but convictions, and will do almost anything to get them. The fact that they are mostly "untouchable" just furthers their own goals of higher office, partnerships in high power law firms, etc. It makes me sad, and also scared to think that's how our system of justice works in this country.

Virginia had for years, some of the most onerous laws concerning new evidence and other findings after the conviction. They are slowly loosening them since there are a few progressives here that understand the laws were initially written before the advent of DNA, etc., and that when other forms of innocence are discovered, they should be considered. I think the spate of having to pay HUGE sums to improperly incarcerated people finally got their attention in the legislature.

Peace <3