Will Massachusetts Supreme Judicial Court Do The Right Thing?

Yesterday, I showed how the op-ed by Harvey Silverglate had to ignore the conclusive evidence that the defense counsel had the opportunity to review video tapes so that he could allege that issue remained open. Silverglate had in his hand a lawyer’s letter stating a transcript shows the unedited video tapes had been made available and that the defense lawyer agreed he had the chance to view them. That letter had also been made available to the Boston Globe which wrote an editorial headlined: “When miscarriages of justice occur, prosecutors must answer for actions.” The Globe in its editorial decided not mention the letter. 

I said a couple of days ago this is a very strange matter. Here’s a quick summary of the facts that the Globe must have known. In 1985 Bernard Baran was charged with molesting six young children between the ages of two and four, three boys and three girls. Baran was a 19-year-old gay man at the time of the allegations. He worked as a teacher’s assistant at a preschool day care center which the children attended. He was tried by a jury and convicted of three counts of rape of a child and five counts of indecent assault and battery.

Twenty-one years after his conviction in 2006 a judge granted his motion for a new trial. He was released from prison. That judge’s decision was affirmed by the Appeals Court in 2009 which found two reasons for giving Baran a new trial: “the ineffective assistance of counsel” and that Baran was deprived of “the right to a public trial” (the judge closed the courtroom to the public and press when the children victims testified).

The Appeals Court considered the issue of prosecutorial misconduct but did not use that as a basis for granting a new trial. It noted the prosecutor’s final argument to the jury was improper, that the videotapes may have been withheld (which was not the case), the failure of the prosecutor to produce police reports that “might have supported the inference that one or more of the complainants had been sexually abused by another, (but not that the defendant didn’t also abuse the child) and failure to present the full unedited videotapes to the grand jury. To find such misconduct would have required another hearing on the case in Superior Court. The Appeals Court said that because two other independent bases exist for the allowance of the new trial motion and: “that it is unclear whether a retrial will be sought, we conclude that a remand at this time for further evidentiary hearings and findings would not serve the interests of judicial economy. 

The Appeals Court recognized: “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.” Most obviously, the burden would be on the prosecution attempting to again try a case based on evidence that occurred more than 23 years earlier. The prosecutor did not retry the case.

Having ruled Baran was entitled to a new trial the court had to have known that there would never be a retrial. Asking persons age 25 to 27 to recollect what happened when they were younger than age 4 some made no sense. This is especially so after the defendant had spent more than 20 years in prison.

The Globe has told us: “In an atmosphere of homophobia and hysteria, the defendant, an openly gay teenager . . . didn’t stand a chance.” I’ll talk about the homophobia tomorrow.

The Globe concluded Baran “spent 21 years in prison for crimes he didn’t commit.”  That is not true. He was convicted of the crimes by a jury. On appeal the court said there were problems with the way the trial was conducted so he should be tried again. Whether he committed those crimes or not was never adjudicated properly. It went on to say his trial was a travesty without mentioning the Appeals Court when first reviewing it found no error.

The Globe goes further asking for an inquiry into the prosecutor’s “decision to try the case in the first place” even though the Appeals Court never suggested it should not have been tried. Following the Globe’s logic, in every case where a jury returned a not guilty a prosecutor would be subject to a public investigation for his or her decision to bring the case.

The Globe wrote the prosecutor “misled the grand jury by implying there was nothing of note on the removed sections of the tape.” There is nothing in the record of the case to support such a statement.

The Globe wants an inquiry into the prosecutors’ “decision to charge Baran in the first place” saying the “certainly knew themselves that the case rested on dubious testimony.” The jury that convicted Baran didn’t believe it was dubious. Imagine the uproar had the prosecutors not presented a case where six children alleged they were molested by a specific person.

The hysteria of the times seems to be being repeated here. The Globe wants the Supreme Judicial Court (SJC) to launch a public inquiry into an event of 29 years ago with a mind to punishing a prosecutor. The Globe suggests if the SJC does the investigation it is demanding it “will take some courage.” Hardly, the courage will be for the SJC not to be stampeded by the Globe.  

The SJC should recognize that attempting to unravel events occurring one score and ten years previous in an attempt to impugn a prosecutor’s judgment is a fool’s errand. The District Attorney under who the prosecution commenced is dead. His reasons for prosecuting Baran, which seem obvious to me, are not retrievable. The courts have already placed the blame for Baran not receiving a fair trial the shoulders of his defense lawyer. The SJC must recognize it is impossible to truly reconstruct these ancient events and that it is best to let matters rest.