It took a lot of loud lawyering to finally, after 21 years, get some measure of justice for Bernard Baran, who was convicted in 1985 of molesting children at a day care center and won the right to a retrial in June. Now, the district attorney of Western Massachusetts’s Berkshire County — fighting a political battle to keep his office — wants to shut those lawyers up.
DA David Capeless, who is personally handling the Baran case, has asked a judge to place a gag order on Baran’s lawyers to prevent them from making public statements about the case. Capeless argues that by talking about how Baran was screwed by county prosecutors, the attorneys will prejudice potential future jurors. Whether they might also prejudice voters in the September 19 Democratic primary, pitting Capeless against Judith Knight, is left unsaid. (Capeless was not available for comment.)
The unfair trial received by Baran, and the possibility of his innocence, was reported by the Boston Phoenix in June 2004, in collaboration with the Boston University Investigative Journalism Project (see “The Trials of Bernard Baran,” News and Features, June 18, 2004). Nine months later came the breakthrough in the long-stalled case, when Capeless found and turned over five unedited videotapes of interviews with the alleged victims. “The unedited versions contain statements in which the children deny that Mr. Baran had done anything to them, and statements where they accuse other persons of abuse,” wrote Superior Court justice Francis Fecteau in vacating the convictions this June and ordering a new trial.
Fecteau also notes that Baran’s attorneys — John Swomley and Harvey Silverglate, who is also a Phoenix columnist — spent years pushing to get those tapes. And a key to their ultimate success was turning public opinion in favor of revisiting Baran’s convictions, says Charles Stephenson, a Springfield attorney who is handling a similar case and is convinced that public persuasion is key in such situations.
Now Capeless is trying to shut down that same vigorous public advocacy. Swomley and Silverglate, with help from the American Civil Liberties Union, submitted their counter-argument this week, claiming that Capeless has no reason to pre-empt their First Amendment rights.
The timing of Capeless’s gag-order motion is especially odd, Stephenson says, because Capeless is appealing Fecteau’s decision. In other words, there is no pending trial whose potential jurors could be influenced. “They have no basis for seeking a gag order while they’re still seeking an appeal,” Stephenson says.
Stephenson believes that in very emotional, public cases, the defense sometimes must counter the barrage of media coverage — often generated by the prosecutor — that could influence potential jurors. One of Capeless’s complaints, for example, concerned a letter to the editor penned by Silverglate and published in the Berkshire Eagle this July 4, responding to an article in which one of Baran’s alleged victims reiterates his belief in Baran’s guilt. Stephenson knows the cost of silence: he recently lost an appeal in another of several questionable molestation convictions in Berkshire County. Robert Halsey, a bus driver, was sentenced to life in 1994 for repeatedly molesting two young passengers. (Baran’s prosecutor, Daniel Ford, was Halsey’s trial judge.) “I made the judgment, in a very similar case, to avoid any contact with the press,” Stephenson says. Not only did his appeal fail, the Court of Appeals quietly rejected it in an unpublished opinion, and the Supreme Judicial Court quietly declined to review. Had public sympathy been with Halsey, those courts might have been forced to address Stephenson’s claims publicly. “My case,” he says, “demonstrates that there are real risks in failing to make the public aware of the case.”