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.