Appeal set for Baran ruling

Tuesday, January 22
PITTSFIELD — Bernard J. Baran, who has been free on bond since a Superior Court judge overturned his child molestation conviction in June 2006, will have another day in court next month when the Appeals Court will hear oral arguments on his case.

The state Appeals Court has scheduled a hearing for 9:30 a.m. Tuesday, Feb. 12, in Boston. The appeal was brought by Berkshire District Attorney David F. Capeless, who is arguing that the Superior Court judge who overturned Baran's conviction exceeded his judicial authority and relied on faulty facts in rendering his judgment.

Baran was 18 years old when he was convicted in January 1985 of molesting five children at the Early Childhood Development Center in Pittsfield. He was sentenced to life in prison.

One of Baran's attorneys, John Swomley, said yesterday that Baran is eager to have his day in court, and that the past 18 months have been difficult for his client, who is free on $50,000 bond and being monitored with a global positioning system.

"We are all enthusiastic about being able to turn this page," Swomley said in a telephone interview yesterday. "In the year since Mr. Baran's release, I think everyone on this side had hoped that the DA's office would just do the right thing of its own accord ... but we are having to fight to the bitter end."

In 2006, Superior Court Judge Francis R. Fecteau ruled that Bar an's original attorney, Leonard Conway, was incompetent, rendering Baran's trial unfair.

Fecteau's ruling hinged on Conway's failure to investigate the charges against Baran or to demand unedited copies of interviews with the alleged victims. Those tapes — which surfaced in 2004 — show the children telling their questioners that Baran molested them, that no one molested them or that someone else entirely had molested them.

Had Baran's attorney seen the tapes, Fecteau concluded, he could more easily have cast doubt on the reliability of the children's testimony that was the state's sole evidence against Baran.

In his appeal, Capeless argues the videotapes are not as significant as Fecteau concluded. The interviews were conducted weeks after the children first reported the abuse and were only shown to the grand jury.

In response, Baran's attorneys — Swomley, Eric Tennen and Harvey Silverglate, all of Boston — have argued that Fecteau's ruling was sound and that the videotapes were crucial. Because Baran's attorney never asked for and was never given the tapes, they argued, he was denied a forceful way to challenge the testimony of the children.

The Appeals Court will hear oral arguments Feb. 12 and then issue its ruling in writing at a later date. If the court upholds Fecteau's decision, Baran will remain free and Capeless will have to decide whether to pursue the case before the Supreme Judicial Court or try to prosecute Baran anew with 22-year-old evidence.

If the court reverses Fecteau's opinion, Baran's guilty verdict would be reinstated, and he would be returned to state prison.

To reach Jack Dew:, (413) 496-6241


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