Lost Innocents

Every day, DNA testing overturns another man's rape or murder conviction. The Exonerated, a play drawn from the stories of innocent people released from death row, is an Off Broadway hit. We are learning that people confess to crimes they did not commit, that the most confident eyewitness testimony can be mistaken, that a state crime lab can be as sloppy as a greasy-spoon kitchen, that police officers lie. Thanks largely to New York Times columnist Bob Herbert, the State of Texas has released from prison all but two of the forty-six residents of Tulia who had been arrested--including 10 percent of the town's black population--after being essentially framed by an undercover cop on drug charges. These and other high-profile reversals might almost make you believe the cliché that "the system works."

But then there is the case of Bernard Baran. Three years ago in this space I wrote about Baran, who, as a 19-year-old childcare worker in Pittsfield, Massachusetts, was the first to be convicted in the wave of mass-molestation daycare cases that swept the country in the 1980s. Ever since, I've hoped to follow up with the news that he too is free (he has been incarcerated since 1985, or just about half his life). After all, DNA isn't the only kind of forensic science that has moved ahead: The assumptions under which the daycare cases were prosecuted, the methods used to gather evidence, the expertise advanced by the prosecution, have all been pretty much exploded. Thanks to researchers like Elizabeth Loftus, Maggie Bruck and Stephen Ceci, we know much more now about how to interview children, about the role that adult pressure, including the questions of anxious parents, can play in getting small kids to "disclose" things that never happened and sometimes to remember them as if they did. As uncovered by crusading journalists Debbie Nathan and Dorothy Rabinowitz, cases like that of the McMartin Preschool (the Buckeys), Wee Care (Margaret Kelly Michaels) and Fells Acres (the Amiraults) look in retrospect like bouts of collective insanity. It seems amazing now that anyone could believe that perversions of a Sadean extravagance--being tied to a tree on the front lawn while a teacher cut the leg off a squirrel, being forced to lick peanut butter off a teacher's genitals while she played the piano--could take place in busy spaces with no one the wiser and the children trooping cheerfully back the next day. Capturing the Friedmans, Andrew Jarecki's much-praised documentary about the case of Arnold and Jesse Friedman, raises these questions well: How likely is it that the Friedmans orchestrated group sessions of naked anal-penetration "leap frog" that one student "remembered" only under hypnosis?

Baran's case lacks the wilder elements of some other daycare cases--there were no tales of tunnels, spaceships, robots or magic rooms. But in many ways it was typical. The Early Childhood Development Center was a well-run, well-staffed, respected facility in which parents were free to drop in anytime and in which privacy was minimal. The original complaint came from a troubled family--the mother and her boyfriend were drug addicts leading violent and chaotic lives, and "Peter," whose alleged complaint to his mother that his penis hurt set off the investigation, was an unruly, difficult child. Once the panic got going, the children were presumed to be "in denial" if they said nothing happened and truthful if they "disclosed." Against a gung-ho prosecutor riding a tide of national and local hysteria, Baran had the kind of legal counsel you get if all you can pay is the $500 your mother got from selling her car.

An important and unusual feature of Baran's case is that he is gay. "Peter's" family had complained to the ECDC about that, as had another family, whose daughter testified against Baran. Playing on the popular image of homosexuals as pedophiles (never mind that Baran was accused of molesting girls as well as boys), the prosecutor compared him to "a chocoholic in a candy store." To explain why "Peter" tested positive for gonorrhea of the throat but Baran tested negative, he suggested that Baran might have taken penicillin before being tested (Baran is allergic) and reminded the jury that male homosexuals and prostitutes had high rates of STDs. Unfortunately, that prosecutor, Dan Ford, is now a judge in western Massachusetts.

Would Baran be convicted today? As a not entirely sympathetic article in the Boston Globe (October 1, 2000) observed, there were two pieces of medical evidence against him, and both have been scientifically discredited: That particular gonorrhea test is now known to give many false positives, and the "notches" on one girl's hymen, presented as evidence of penetration, are now known to be normal features in some 60 percent of nonabused girls. Tellingly, moreover, no fresh cases of mass-molestation have made headlines in the past eight years. Rape, murder, assault, child abuse, still happen all the time, but this particular crime does not. The acclaim for Capturing the Friedmans, and the publication of No Crueler Tyrannies, Dorothy Rabinowitz's exposé of the Amirault case and others, are perhaps signs that we are ready to see the panic in historical perspective. But is the justice system ready to do the right thing by the people convicted when the panic was at its height? Gerald Amirault is still in prison, and so is Bernard Baran.

His legal team--John Swomley, Pam Nicholson and Harvey Silverglate--has been trying for more than two years to get from the district attorney, Gerard Downing of Berkshire County, records to which the court has agreed the defense is entitled and which, the lawyers believe, could exonerate Baran. There's been one delay after another. You would think the least the State of Massachusetts could do would be to turn over to the defense in an expeditious fashion materials the state's own courts have agreed it should have.

Bernard Baran is a working-class man with no money and no wealthy defenders. Gay groups won't touch the case--the stigma of pedophilia is too great. All he has is his family and a small band of supporters, led by Bob Chatelle and Jim D'Entremont. Three years ago, the generosity of Nation readers gave a huge boost to Baran's cause. If you would like to help now, you can send a donation to The Bernard Baran Justice Committee, PO Box 230783, Boston, MA 02123. To learn more, see www.freebaran.org.

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