No defense for this trial

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The primary duty of a prosecutor is not to convict, but to see to it impartial justice is done the guilty as well as the innocent. As the Appellate Court put it in the Baran case, "A prosecuting attorney's obligation is to secure a fair and impartial trial for the public and for the defendant. His obligation to the defendant in this regard is as great as is his obligation to the public." It is true District Attorney David Capeless inherited the case and was not involved in its original prosecution; but in trying to uphold the conviction he vouched that not only that Baran was guilty, but that the trial Baran received was fair.

If Baran did not receive a fair trial, Capeless should have consented to the motion and retried the case, rather than contest the motion for a new trial.

In an excoriating opinion, the Appellate Court concluded, "it cannot be said that the defendant received anything close to a fair trial." At the original trial, the prosecution made repeated reference to Baran's homosexuality, which the court correctly noted was an "explosive topic" in the '80s and "had no relevance to the charged crimes." The prosecution culminated in closing arguments where it was argued that Baran "could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite."

As to whether the prosecution improperly failed to hand over exculpatory evidence that might have prevented Baran from spending 22 years in prison, the Appellate Court wrote, "While the record does not settle the question whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention." In other words, we do not know for sure, but it smells fishy.

The unedited tapes that were not turned over revealed significant vacillation and uncertainty on the part of many, if not all, of the children interviewed. The tapes also contained considerable material from which it could be inferred that the children's testimony was coached. The court noted that it was "particularly powerful" that in numerous instances various complainants denied that the defendant had engaged in any misconduct. Also not turned over were documents from the Department of Social Services that a "boy A" and a "girl E" each had been molested by their respective mother's boyfriends.

The closing arguments were ruled to have constituted flagrant prosecutorial misconduct. It was stated that the prosecutor's closing "contained a number of passages apparently designed to inflame the jurors' passions." According to the Mass Rules of Professional Conduct, a prosecutor shall "not assert a personal opinion as to the justness of a cause, as to the credibility of a witness, or as to the guilt or innocence of an accused."

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As for improperly vouching for the credibility of the witnesses the prosecution argued, "if ever there was a case where the ends of justice literally cry out for a guilty verdict, this is that case because truth is the mother of justice and in this case truth came literally from the mouths of babes."

The prosecutor began his closing by exhorting the jury to return a guilty verdict "in the name of justice and decency." The prosecution ended, "The only ones who win are the people of the commonwealth of Massachusetts who win when justice is done. And the only ones who lose are the people of the commonwealth of Massachusetts who lose when justice is thwarted. I beseech you — I beg you — think of those children and bring back a verdict of guilty on each and every one of these charges."

The lines of what is prosecutorial misconduct are not always clear. But when a prosecutor makes a closing argument that sounds like a guilty verdict must be delivered by the jury in the name of truth, justice, and for the love of children, (rather than the facts indicate guilty), and then goes on to state that justice will be thwarted if the jury fails to deliver a guilty verdict, that line was crossed long ago.

Had the case been retried, there would have been a serious issue of whether individuals that were ages 2-4 could honestly remember the crime, or whether that would have been during the period of childhood amnesia.

I asked Professor Elizabeth Loftus of the University of California, one of the nation's foremost experts on childhood memory, what is the likelihood of a false memory in an adult regarding sexual abuse that they allegedly experienced as 2, 3 or 4 year olds if people were repeatedly subjected to leading questions and/or questioning wherein it was suggested that there was a "correct answer"? She replied that "Suggestions can lead to false memories. They can make people believe they had experiences as children that they didn't really have." She added, "Adults don't have concrete reliable memories for things occurring before or at about age 3. This phenomenon is called 'child amnesia.' "

Capeless would have had a tough case given the effects on the adult mind of the discredited interviewing techniques experienced during or slightly after the period of childhood amnesia. Arguably, since tapes likely to have contained exculpatory evidence (given the case's track record) have been lost, there was an additional ground not to retry the case. However, Capeless failed in his ethical obligation not to defend this farce of a "trial."

Rinaldo Del Gallo is a practicing attorney whose freelance columns have appeared in newspapers across the country.


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