Parallels drawn between Amiraults, Baran

Thursday, June 11
PITTSFIELD — Before Bernard Baran's case was overturned, there were the Amiraults, a mother and her two adult children who were convicted of molesting youngsters at their Fells Acres day care center in Malden and have never cleared their names.

At first, the two cases moved in lockstep: Both were prosecuted in 1985 amid a wave of child abuse investigations at day care centers across the country. Both were found guilty and mounted lengthy appeals.

But only Baran has been able to overturn his conviction.

"The two are linked," said James L. Sultan, who represented the Amiraults during their appeals. "The Amirault case taught us how important it is that children in these kinds of situations are questioned properly, and how improper questioning techniques, even if done with the best of intentions, can lead to unreliable and false accusations."

Those lessons helped frame how videotaped interviews of Baran's alleged victims were viewed. The tapes, which surfaced in 2004, showed the children being asked leading, coaxing questions. At times the children denied the abuse or said someone else had assaulted them. At others, they blamed Baran. Dr. Maggie Bruck — the same expert who testified for the Amiraults — described how that kind of questioning can lead to false stories.

Baran was convicted in 1985 of molesting five children at the Early Childhood Development Center. He was sentenced to three concurrent life sentences but freed in 2006 when a Superior Court judge ruled that Baran's original attorney was incompetent and his trial unfair.

Both the Amiraults and Baran have supporters and detractors. While many insist the four are innocent, others are certain of their guilt. When Berkshire District Attorney David F. Capeless announced on Tuesday that he would no longer seek to prosecute Baran, he said he still believed that Baran's jury reached the right verdict.

The Amiraults' appeals were ultimately unsuccessful. Three times, a Superior Court judge overturned Violet and Cheryl's convictions, but the Supreme Judicial Court reinstated the guilty verdicts each time. Violet, the mother, died before her conviction was restored, while her daughter, Cheryl, served eight years in prison. Gerald, Violet's son, was freed in 2004 when he was granted parole after 17 years.

When the judges returned Cheryl to prison in 1997, they ruled that her appeal came too late and must be rejected in the interest of "finality." Many interpreted the opinion, written by then-Justice Charles Fried, as putting expedience before justice.

"Charles Fried just invented the so-called finality doctrine," said Harvey Silverglate of Boston, one of Baran's attorneys and a civil liberties specialist. "It really was one of these doctrines that was manufactured in order to keep the court from having to review an extraordinarily embarrassing case."

In May, the three-judge panel that upheld Baran's appeal drew a straight line between Baran and Amirault. Concluding that the evidence in support of Baran's claim was overwhelming, the judges ended their far-reaching opinion by quoting from the dissent in Amirault: "Our desire for finality should not eclipse our concern that in our courts justice not miscarry."

"I was overjoyed by that line," Silverglate said. "It was essentially the appeals court ... announcing that this sort of doctrine went as soon as it came. It lived one of those nanosecond existences."

John Swomley, Baran's lead attorney, said it took "a confluence of a lot of things" to free Baran. The hindsight of the Fells Acres case and the growing acceptance that children's testimony must be elicited with caution helped.

But Baran may have benefited just as much from the incompetence of his original attorney, Leonard Conway, who failed to consult an expert for the trial, didn't ask to view the videotaped interviews of the children, and — in the eyes of the appellate judges — committed one tactical error after another. Conway did not return a call yesterday seeking comment.

"We didn't have to argue that we had newly discovered evidence. All we had to argue was ineffective assistance of counsel," Swomley said. "That is probably one of the hard lessons, and I don't know whether there is a good message there: If you have a really, really incompetent lawyer, your likelihood of prevailing on appeal is greater. That is a sad truth."

And Baran had luck. His attorneys knew that the unedited videotapes must exist. They first asked for them in 2000, but then-District Attorney Gerard D. Downing said they were missing. Downing died in December 2003, and Capeless took over. In September 2004, Capeless' office found the videos in a box of old tapes of drunk-driving investigations and turned them over to the defense.

"Sometimes there are just acts of God about cases," Silverglate said. "The new DA takes over, finds the long-lost tapes and turns them over. Bernie Baran's freedom was won on that day."


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