Bringing the matter up during waning days of a close race for the governorship seemed out-of-place. Nothing was or is urgent. It could have waited. Whether the editorial was published last Saturday or the last Saturday of 2014 would make no difference. It was about events that happened 29 years ago.
Was it a disguised hit piece on one of the candidates? Will it be, like many Globe editorials, the introduction to other articles on the same subject but ones more directly aimed at one of the candidates? Or, will it just be allowed to hang out there as a reminder about what one of them allegedly did in the past hoping that its insinuations will cause voters to turn away from the candidate?
It told the story of Bernard F. Baran. Jr. who was openly gay. It said he spend 21 years in prison “for crimes he didn’t commit.” It said: “trial records suggest the defense attorney was unaware of significant exculpatory evidence held by the prosecution.” The editorial is based upon an op-ed printed in the Globe by Harvey Silverglate who “helped win Baran’s release” written on October 8, 2014 .
Silverglate wrote: “Baran fell victim to homophobia, hysteria, and arguable prosecutorial misconduct. While many now recognize these prosecutions as modern-day witch hunts, those responsible for his incarceration remain unapologetic and unpunished.” He pointed out that: “Massachusetts conducted at least two such prosecutions: Baran’s and that of Violet Amirault’s family who ran Fells Acres Day Care Center in Malden.”
Although it is disclosed Silverglate worked for Baran, neither Silverglate nor the Globe reveal is he was involved in supporting the Amiraults and working in conjuction with other lawyers attempting to secure Gerald Amirault’s release before the MA Parole Board. Silverglate’s interest in it had him writing that the Massachusetts Supreme Judicial Court (SJC) by ignoring the convictions of the “obviously innocent” Amiraults “perpetuated this fraud on public justice.” From all I can see Silverglate is not a fan of one of the candidates.
It sure would have been better not to bring this matter up at this time. Especially since the reason behind the editorial and Silverglate’s presentation is to attack a prosecutor, Daniel Ford, who is now a judge without any basis for doing this. Silverglate is a defense attorney. As such he will present the view of defendants. He has an ax to grind. Here without any basis he and the Globe impugn the integrity of Daniel Ford a prosecutor and overlook the real culprit, the defense counsel.
Not mentioned is that the same Appeals Court that decided in 2009 that Baran should have a new trial had earlier decided in 1986 there was no error in his trial. That earlier court noted: “The defendant had been supplied with the minutes of the proceedings before the grand jury and with copies of every police report, witness statement and report of the Department of Social Services in the possession of the prosecution. The prosecutor had offered to make the videotaped interviews of the victims available to the defense.”
The editorial noted: “Part of the current dispute is the allegation that [the prosecutors] didn’t share full videotapes with Baran’s lawyer,” without mentioning that one of the Daniel Ford’s attorneys wrote to the Globe’s editor, Brian McGrory, saying: “Before trial . . . there is a transcript of a pretrial at which ADA Ford offered to play all unedited tapes for defense counsel and the trial Judge.” That letter went on to say that defense counsel agreed those tapes were available to him.
Silverglate, who acknowledge receiving the letter, opted to write: “The Appeals Court judges overturned the verdict on the grounds of ineffective counsel alone, though not without noting ominously that “while the record does not settle the question of whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention.” He too could have consulted defense counsel to learn they were available and omitted the “ominously.”
The Globe wants “a full public inquiry into both the prosecution’s conduct and its decision to try to the case in the first place.” Yet there is no evidence of wrongdoing by the prosecutor. The videotapes were available to defense counsel. He elected not to use them. For that reason Baran was given a new trial. This is turned around by the Globe and Silverglate into some type of prosecutorial misconduct when none occurred.
We recall the Globe demanded an investigation into the probation department and the SJC quickly responded as did Boston’s U.S. Attorney. It is now demanding the SJC do another investigation even though it has offered no substantial basis for it doing this. Now we get a chance to see whether the SJC is the Globe’s lap dog. If it proceeds with such an investigation, it will doing a great injustice since the editorial is falsely written.
There is, though, one ominous note to keep in mind. Obviously that Silverglate writes op-eds he and the Boston Globe coordinate matters. This goes back at least to the days of the 75 State Street affair. What we don’t know is whether this matter is also being coordinated with the SJC judges. In other words, has the SJC already decided to launch an attack on the prosecutor and are its judges using the Globe as the reason for it.
Silverglate introduced homophobia into the matter. Are we supposed to assume that Judge Daniel Ford prosecuted Baron because he was gay. Silverglate states: “Judge Ford has not been publicly investigated, much less removed from the bench. . . . ” Why should that even be a consideration where there is no showing of any wrongdoing? Is this to become another modern-day witch hunts, something Silverglate and the Globe so decry?
Stay tuned. It should be interesting since we’ve seen it all before.