Click here for past issues of the Globe Magazine, dating back to June 22, 1997
Click here for past issues of the Globe Magazine, dating back to June 22, 1997
At first sight, not much about the Massachusetts Treatment Center for sexually dangerous persons, a modern brick building in Bridgewater, suggests a prison. It is quiet in the small, outer lobby. There are colorful cloth wall hangings and a sort of Danish modern circular waiting bench. But a visitor can't miss the heavy plate-glass window at the guards' station, the airport-type metal detector, and the clock built into the wall above the outside door, which, eerily, has numbers but no hands.
After passing through the detector, visitors enter a security lock: A steel door from the outer lobby closes behind before another opens ahead into the main visiting area. Here, there are benches where visitors are meeting with inmates, smaller rooms (each with a large window) along the walls with tables and chairs, a row of vending machines, and a bored-looking officer sitting at a desk on a platform, keeping an eye on things.
Bernard F. Baran Jr., 35, an inmate, makes his way to a side meeting room with a round table for an interview. He is tanned and lean, about 5 feet 8 inches tall, perhaps 150 pounds, with a receding hairline and a black ponytail. He is wearing jeans, a black shirt, and narrow rectangular sunglasses.
Nervous and cautious, "Bee" Baran - he picked up the nickname in prison - speaks slowly at first, in an accent suggesting upstate New York more than New England (he is from Lanesborough, near Pittsfield). For about 45 minutes, he talks about his case, his life in prison, and his hopes. At one point, he says simply, "I just want to go home and be with my family."
That will be difficult. Baran is in the 16th year of a life sentence for rape of a child and for indecent assault on a child at the Pittsfield day-care center where he worked from 1983 to 1984. Though other day-care cases, such as Fells Acres in Malden, north of Boston, Wee Care Nursery in New Jersey, Little Rascals in North Carolina, and McMartin Preschool in California, are more famous, Baran was one of the first day-care workers in the nation convicted for abusing children in his care. Only one Fells Acres defendant, Gerald Amirault, remains in prison, and there is strong outside support for his release; most of the other celebrated cases either ended without convictions or resulted in convictions that were later overturned.
But Baran whiles away the years. Last fall he was eligible for parole after 15 years of his life sentence, but he canceled a hearing because he would have had to admit guilt to be paroled, and he maintains his innocence. Besides, even if he got parole, he would still be locked up in the Treatment Center under a separate civil sentence. He declines to participate in the AA-style treatment that entails acknowledging that he is a sexually dangerous person.
There is a modest "Free Bernard Baran" movement, led by Robert Chatelle of Boston. Chatelle, 58, is intensely committed to Amirault's and Baran's causes. He and his partner, James D'Entremont, believe Baran's trial was a homophobic witch hunt (Baran is gay). While other witch-hunt theorists are supporters of Baran's cause, Chatelle is the leader; he maintains a Web site ("The Appalling Case of Bernard Baran" at www.ultranet.com/~kyp/baran.html) and has set up a legal defense fund.
Chatelle's hopes are high. A burst of supportive letters and contributions followed a column last February in The Nation by Katha Pollitt (whose main source was Chatelle) with the headline "Justice for Bernard Baran." Boston lawyer John Swormley, who has represented several clients in the Treatment Center, has agreed to take Baran's case and expects to prepare a motion for a new trial. A handful of other Boston lawyers familiar with the case believe Baran's trial was unfair.
The case of Bernard Baran is complicated and replete with ambiguities and uncertainties, and those affected by it are full of passionate conviction. It can't be wholly sorted out in a single article. But one can say that the case reflects the history of the last two decades, an age of rapid change in American life and law - in ideas about children, sexuality, child abuse investigation, evidence, and ordinary fairness. And one can say that it was a tragedy, and still is.
With mothers swarming into the work force in the 1970s, demand for day care was intense. Dorothy Amos, an African-American community activist in Pittsfield's down-at-the-heels west side, founded the Early Childhood Development Center, which came to be known as ECDC, in the mid-1970s. "Her vision," says Carolyn Burns, executive director of the Berkshire Center for Families and Children, "was to create a child-care center for west side residents." At its peak, ECDC served about 100 children. Besides tuition, it relied on public funds: In 1984, for example, it received $30,000 from the city of Pittsfield and $282,000 from the state Department of Social Services.
Like most centers, ECDC became so busy that it needed support staff. The center began hiring high school students from Miss Hall's School in Pittsfield. In January 1983, it hired 16-year-old Bernie Baran as a teacher's aide. A ninth-grade dropout from a troubled home (he has said he was sexually abused by an adult relative), Baran was referred through the now-defunct Comprehensive Employment and Training Act, the federal job training program.
Aside from a few menial CETA jobs, Baran had almost no work record. However, he was genial, cooperative, and wanted to work with children. Apparently he was fairly reliable, although he was formally reprimanded once for too often coming to work late.
According to court testimony, the allegations began in October 1984. Philip Gruen (all the names of children and parents have been changed in this story), age 3, was being given a bath before bed when he complained that his penis hurt. Asked by his mother if someone had made it hurt, he reportedly said, "Bernie." His mother, Susan Gruen, and her live-in boyfriend, Roger Gruen - a cousin of Philip's biological father - called the police, then took Philip to Pittsfield pediatrician Jean Sheeley. She found no genital injury but took throat and rectal swabs for testing. The result: positive for gonorrhea of the throat. Bernard Baran was arrested and tested for gonorrhea.
The test came back negative, but news about the arrest was already spreading quickly. The secretary of the ECDC board called Gayle Baxter, a board member, to say there was a complaint about Baran. The Baxters asked their 3-year-old daughter, Christine, who had been enrolled at the center, if Baran had touched her. She said that he had. Then Sheeley, the pediatrician, found what she said were tears in Christine's hymen. Other parents began contacting police: In all, there were six complaints within the month.
When the news hit the local paper, The Berkshire Eagle, all hell broke loose. The outraged Gruen parents had called the Eagle and given an interview in which they demanded that ECDC be closed. The directors of 10 Berkshire day-care providers held a press conference and presented a statement, signed by all of them, asserting that their centers were safe. Pittsfield Mayor Charles Smith appointed a committee to draft recommendations to improve day-care safeguards. Trying to calm public fears, District Attorney Tony Ruberto called a meeting of frantic ECDC parents at Pittsfield's Conte Middle School. The cafeteria was packed.
"They were upset," recalls Pittsfield detective Peter McGuire, one of the investigators, "because it started with one victim, and then it became more than one. They were screaming, 'You told us it was only one victim, and my daughter was assaulted. What's going to be done?' "
Berkshire District Attorney Gerard Downing, at that time a junior prosecutor, was one of the officials at the meeting. The parents' fears were palpable, he says: "No one knew the extent of the damage to the children. There was information that a child had gonorrhea, and we were able to dispel the rumor that [the disease] was widespread." At meeting's end, he says, "I remember feeling we had done the right thing in that we had brought the water down from a boil."
Over the next few weeks, the six children who alleged abuse were interviewed by police - some at the station, some in their homes. Christine Baxter, one of the children, was initially interviewed at her home, but she was so fearful that the local DSS office, the district attorney, and the police set up a system for interviewing her and the others by a child therapist in a way that would be unthreatening, while limiting repeated questionings. Most of the children were interviewed by Jane Satullo, a counselor at the local rape crisis center, with a parent present, in a private room in the DA's office. The interviews were videotaped, and police, DSS officials, and prosecutors watched on a video monitor in a separate room, unseen by the children.
In other celebrated day-care sex cases - including Fells Acres, the Wee Care case in New Jersey, and the McMartin case in California - children told astonishing stories about satanic rituals, animal torture, a child being tied naked to a tree, and other fantastic goings-on. The Pittsfield children did not tell bizarre stories. They said that Baran had touched their genitals or subjected them to oral sex. One child testified that Baran had threatened to kill her mother if the girl revealed the abuses.
Baran was tried in Berkshire Superior Court in January 1985 on nine counts: five of indecent assault and four of rape of a child. He was represented by Leonard Conway of Westfield. The case was prosecuted by Daniel Ford, first assistant district attorney, now a Superior Court judge. The judge was William Simons, now retired.
Conway recalls that Baran refused a generous plea bargain: six years in the county jail in return for a guilty plea. "That was an offer that no guilty defendant would have turned down," Conway says. "I explained to him that 'any one of the counts could get you a life sentence. Even if everything you say is true, wouldn't it be better to take six years than go away for the rest of your life?' He said, 'I understand what you're saying, but it's too long to spend in jail for something I didn't do.' "
Sheeley testified to Philip Gruen's gonorrhea and Christine Baxter's torn hymen. Ford produced a medical witness who said gonorrhea could be cured almost overnight - implying that Baran could have infected the young victim, then been treated before his arrest - and that the disease was especially prevalent among prostitutes and homosexuals. ECDC's teachers, its director, parents, and police testified. Five of the children testified after taking a simplified oath - raising their right hands and answering yes to the question, "Do you promise to tell what happened?" The now 4-year-old Philip Gruen threw a tantrum in court, refused to speak, and was carried out. But Christine Baxter, 3 1/2, Joan Gomes, 5, Barry North, 4, Mary Ann Finn, 3, and Billy Gaffton, 4, all spoke, and all indicated, some more explicitly than others, that Baran had molested them.
"Indicated," because while sometimes their testimony was verbal, sometimes it took the form of nodding or head-shaking or pointing to parts of their own bodies or to anatomically correct dolls provided by the prosecutor. In the transcript, Ford often says, "May the record show that the witness pointed to his genital area, Your Honor?" Several teachers testified in Baran's defense, saying that he worked well with the children, and one parent praised him for his positive influence on her child.
Conway's closing arguments were mild and disjointed, but Ford, the prosecutor, was impassioned, at one point calling Baran "a chocoholic in a candy store." After a six-day trial, Baran was convicted and sentenced to three concurrent life terms. The conviction was upheld on appeal a year later.
Baran knocked around the prison system for four years. "I've been in every maximum and medium prison there is," he says. In 1989, he was given a "one-day-to-life" civil sentence to the Treatment Center: That is, he could get out of the center (though not out of prison) if he were pronounced no longer sexually dangerous.
The years since Baran's conviction and other such cases have been filled with research, reaction, and debate about child molestation and the ways such cases were investigated and prosecuted. Subscribers to the "believe the children" theory, current in the 1970s and early 1980s, were attacked in the '80s and '90s by those who believed that the day-care cases were bogus, the result of suggestible children in the hands of overzealous prosecutors.
Partisans aside, serious researchers have published studies demonstrating that young children could eventually "remember" fictitious events repeatedly suggested to them. Findings by Maggie Bruck of Johns Hopkins University in Baltimore and Stephen J. Ceci of Cornell University in Ithaca, New York, are the most widely cited, but there are others. Debra A. Poole, a professor of psychology at Central Michigan University in Mount Pleasant, did laboratory studies of children's memory, trying to sow false information in an effort to devise more reliable interview techniques. She drafted the investigative interview protocol which is now mandated in Michigan. Poole says, "A substantial minority of claims of sex abuse in children and adults are false across a wide range of studies and types of evidence."
The concern that adults would taint evidence through oversuggestion set off a revolution in the way children are interviewed in sex abuse cases. In the Middlesex district attorney's office, much criticized over the handling of child witnesses in the Fells Acres case, children are now interviewed by a single trained forensic investigator, on videotape, to minimize the number of people who question them.
Anatomically correct dolls have been eliminated, because children's attempts to demonstrate with them can be ambiguous. The interview technique, says Middlesex District Attorney Martha Coakley, is "short and precise, non-leading, not suggestive, always building on what the child has said." Coakley adds, "If you ask non-leading questions, children can't fabricate a story to please an authority figure, because they don't know what you want."
Similar programs are in place statewide, and the Berkshire system has evolved since 1984. Today, interviews are held in child-friendly rooms at The Kids' Place (formally, the Berkshire County Children's Advocacy Center, a private agency under contract with DSS), a cheery Victorian house on a quiet street in downtown Pittsfield. RoAnn Vecchia, a forensic investigator employed by DSS, does the interviews, while police and representatives from DSS and the district attorney's office take notes in the next room while watching through a one-way mirror. Parents never watch or participate. Along with about half of the state's counties, Berkshire County makes no audio- or videotape. The reason, DA Downing says, is that tapes are not admissible in court - child witnesses must testify. Though they would be admissible before a grand jury, he believes there, too, it is better to present children directly; for one thing, direct testimony provides a test of whether they could testify in court.
The interview room is brightly decorated with animal-motif wallpaper, furnished with a small table and chairs and supplied with crayons and paper, but there are no toys and no anatomically correct dolls. Posted on the wall are the four rules of The Kids' Place, which Vecchia goes over with the children before the fact-finding interview starts: 1. Always tell the truth; 2. If you don't know, don't guess; 3. If I say something you don't understand, ask me; and 4. If I get something wrong, correct me.
Vecchia has a low-key manner and schoolteacherly appearance, but her approach is anything but casual. "I try to be as non-leading and non-threatening as possible," Vecchia says. "I have some information [about the original report of suspected abuse], but I don't want them to know what I have. I might ask, 'Do you know why you're here?' The child might say 'Daddy did hurtful things to me.' I might say, 'What do you mean by hurtful?' One of my favorite lines is 'Tell me about that.' " If the child says he was touched in a bad way, Vecchia would ask: "Tell me about the touches."
She is alert for signs of adult coaching, she says, such as words like "molested," "had sex," or "had intercourse" that are not usually in children's vocabularies. She does not ask exactly when or how often something happened, because small children may not reliably know. She asks whether it was cold or hot, day or night, and asks for details: where did it happen, what room, what clothes were worn, who was there? She says, "All those little pieces help corroborate the child's disclosures. It's our job to be objective and to determine whether this did or did not happen. None of us are in this to let guilty people go free or convict innocent people."
Prosecutors and investigators believe, of course, that very young children can give accurate reports on sexual abuse if they are interviewed competently. "At least at an early age," says Middlesex DA Coakley, who was chief of the county's sexual assault unit for five years, "children can't out of whole cloth create a sexual experience, because they would have no way of knowing about it. It's not something they see on Mister Rogers."
Even so, doubts remain about the fairness of convicting defendants primarily on the basis of the testimony of very young children in the absence of compelling forensic evidence. There was forensic evidence in the Baran case, yet in his closing argument to the jury, prosecutor Ford stressed the centrality of the children's testimony: "Nothing I could say could be as persuasive as the testimony of those little children," he told the jurors. "In this case, truth came literally from the mouths of babes."
Of the five children who testified, two were 3, two were 4, and one was 5. "In Los Angeles County, kids of this age would never take the stand," says pediatrician Astrid Heppenstall Heger, executive director of the Violence Intervention Program at the Los Angeles County/University of Southern California Medical Center. "Many if not most jurisdictions in the United States have begun to think that very young witnesses do not belong in the criminal justice system. Some 7-year-olds can give better testimony than a 37-year-old, but little kids are less able to do that, and research by reputable individuals, not all pro-defense, have shown that these kids are not as reliable as they should be."
In addition to concerns about children as witnesses, research in the last 15 years has raised doubts about physical evidence used in earlier abuse cases. Some studies have found a large number of false positives in venereal-disease tests of children, and others have found that physiological features once thought to be sure signs of molestation are sometimes normal.
"Nineteen-eighty-four to '85 was a period of exponential increase in knowledge of normal anatomy of children," says Heger, an international authority in the medical diagnosis of child abuse. "If you use the medical knowledge we have today," she adds, evidence once critical to convictions "probably would not withstand scrutiny."
In his apartment on Boston's Symphony Road, Bob Chatelle sits amid book-lined shelves and piles of documents. A Harvard-educated math whiz with a polite and professorial manner, Chatelle has been active in free-speech issues for years. "It's really a terrible injustice," he says of the Baran case. "All these cases are terrible injustices. I suppose part of my interest was personal, in that Baran was a gay man, and I really felt there was a lot of homophobia involved. What really got to me was that he had been completely forgotten. There's no question in my mind that he is innocent. My hope is that there will be a new trial."
Chatelle's certainty notwithstanding, those who helped convict Baran, including the one child witness who spoke for this story, and her parents, believe with equal force in his guilt. "I look back at it," says Berkshire DA Downing, "and when one reads about other cases like it, I think that this one was done right. The reason it has not been attacked successfully speaks to the quality of the investigation."
"None of us in my family want him out," says the mother of one of the girls at ECDC, "because we have studied his affliction, and we don't think it's curable. Aside from that, he is still in denial - he has done nothing to work for a cure - which means when he gets out, he'll still be a very dangerous man.
"I'm a serious mother," the woman says. "I wanted children, I believe in children. But when you're faced with your child in a situation like that, you feel like a complete failure; you spend the rest of your life trying to give back to your child something you never can give back. It's not like we haven't forgiven him - we have long since forgiven him, and we don't think he has had a wonderful life. None of us has had a wonderful life. We went through many years of hell."
Her daughter, now 19, is a college student in New York. She remembers little of these events, though she remembers being in court. She is aware that she is now just the age Baran was when he was convicted, and that he was abused as a child.
"I don't think anyone should have to experience that sort of pain at such a young age and live with something so horrible in the back of their mind for their entire life," she says. "The reason he did the things he did was because someone did the same things to him when he was a child. He did not receive the support and encouragement that I did."
Nevertheless, she says, "he's a dangerous individual. If there were another trial, I would do as much as I can to keep him in jail or at least get him to a place where he could get counseling and keep him from doing this to someone again."
Bernie Baran says he weighed about 100 pounds in January 1985. When he arrived in prison, he was known to be gay and a convicted child molester. People like him have much to fear in prison. "They don't fare very well," says professor James Alan Fox, head of the criminal justice program at Northeastern University. "They are the lowest end of the totem pole."
Baran was reluctant at first to talk about what had happened to him, out of fear of retaliation from prison authorities or harassment from other inmates if he got a reputation as a victim. He alluded vaguely to "problems" he had had. In a second interview, he did talk about it. What he said could not be corroborated, but his voice was shaky, fearful, and emotional. His one condition for speaking was that the particular prisons where things happened not be mentioned.
Four days after he got to prison, Baran says, he was raped in a shower by another inmate. "He held his hand over my mouth to make me be quiet," Baran says, "and he said, 'It's gonna be like this from now on. You better get used to it.' A man across the hall [in another cell] said he knew what happened. He said, 'Don't say anything, 'cause then you're a rat, and they'll dog you.' He said I should go to the Treatment Center: It's like a holiday camp; there's a lot less violence. He said it's the only place I'd survive."
Inmates whistled and spit at him, Baran says, urinated in his cell, punched him randomly. Another man sexually assaulted him, then later said "Hi" as if nothing had happened. "Homosexuals are called 'punks' in prison," he says. "They do what they want to you. It's never-ending. They believe that because you're homosexual, you want that." He says he was assaulted, sexually and otherwise, 30 or 40 times in the four years that he was in the general population. "I always pretended to my mother that everything was fine."
In 1988, he says, when he was in one of the large prisons, he fought back against an assault, and he and the assailant were both locked in their cells. "I had no hope," he says. "I couldn't take it no more. They let him out, but I didn't want to come out, because I was afraid of his friends."
He cut his wrists. He was sent to the hospital and shortly after that to the Treatment Center for sexually dangerous persons for a 60-day evaluation. Inmates knew that the center, run at the time by DSS (today it is run by the Department of Correction), was a safer place to do time. But to get in, an inmate had to be pronounced sexually dangerous by two psychiatrists and given a special court sentence. It did not help to maintain innocence. Baran did so to the first psychiatrist, Aaron M. Leavitt, in June 1988. Leavitt expressed some puzzlement in his report: "I am not sure what his motivation is regarding his desire to be at the Treatment Center." Baran recalls: "He said to me, 'Why would you want to stay here if you're not admitting your crimes?' "
Baran says his counselor then told him he would have to go back to prison. "I got physically sick when she said I was going back," he recalls. "I started shaking. I said, 'I can't go back, I can't take it anymore.' " Two weeks later, he saw the second psychiatrist, Roland H. Ungerer. Baran insists he did not explicitly admit guilt to Ungerer: "I never said outright that I committed these crimes," he says. "I remember saying, 'I need to stay here. I'm a young man; I think I could benefit from it.' "
But Ungerer's report says that Baran had "denied these charges to Dr. Leavitt, the other examiner. After much thought, he says he decided to come forth and admit to me ... that he indeed had committed the alleged crimes. He said that he has decided to tell the truth to me and feels that he does have a sexual problem and wishes to be committed to the Massachusetts Treatment Center." In January 1989, Baran was committed. Asked at his sentencing if he had any comment, he said nothing.
Did Bernard Baran get a fair trial? Even to explore the question is to appreciate how complex, painful, and fraught with the risk of error and injustice such cases can be.
Baran's advocates contend that he was unlawfully kept out of sight of the children in court and that he was unfairly denied a bill of particulars - specifying the exact times and locations of each criminal act. The first complaint is apparently unfounded, and in any case was never made in the 1986 appeal. Both then assistant district attorney Ford and Judge Simons insist that Baran was in view of the children the whole time. And the transcript makes clear in various places that Baran was in view.
Simons did deny Conway's motion for a bill of particulars, but that is apparently not unusual, especially where children could not specify exact times and places of alleged crimes. Simons says the bill of particulars dates from former times, when a defense lawyer did not have access to the state's information. "At the time Baran was tried," Simons says, "they had substantial pretrial discovery, grand jury minutes, witness statements, police reports. All that information was available to the defense." The appeals court agreed.
Conway objected throughout the trial that Ford was leading the witnesses. The transcript makes clear that he did do so at times, but Simons ruled in a pretrial hearing (and again the appeals court agreed) that some amount of leading is permissible in court, if not during investigation: The prosecutor is trying to get the witnesses to say before the jury what they said earlier.
Baran had no history of pedophilia. No one at ECDC saw him molest the children, though it was a busy and sometimes crowded place, nor did they suspect he was doing so. There was no chemical evidence linking him to the children - no semen or blood - and DNA testing was not introduced in the courts until 1987.
There were two items of physical evidence: Philip Gruen's gonorrhea of the throat and Christine Baxter's hymen tears. Baran's supporters dismiss these findings, pointing out that Baran tested negative for gonorrhea. They also contend that the test for gonorrhea given at that time often yielded false positives and that irregularities that look like tears in a child's hymen can be normal.
Jean Sheeley, the pediatrician, examined both children, took the rectal and throat swabs from Philip Gruen, and made the observations of Christine Baxter. Ford asked her on the witness stand where she had sent the swabs, and she answered, "To the hospital laboratory" (i.e., Berkshire Medical Center in Pittsfield).
According to Nicholas J. Fiumara, retired longtime director of the Massachusetts Division of Communicable Diseases, positive diagnosis of gonorrhea of the throat first requires a positive gonorrhea culture, then the bacteria must be submitted to a sugar fermentation test. "You have to distinguish the gonococcus from the meningococcus that normally lives in the throat," Fiumara says. "If they did not do the sugar fermentation, it's not a positive diagnosis."
Andrea M. Vandeven, instructor in pediatrics at Harvard Medical School and medical director of the Child Protection Team at Children's Hospital in Boston, says: "Where there is a question of sexual abuse, if a small child has a positive culture, the first thing I would do is call the lab and do a sugar test. They would not necessarily do that part in an outlying hospital."
It is not certain how the test was done in Baran's case - apparently neither the prosecutor nor the defense attorney raised the question. Rebecca Johnson, chairman of pathology and clinical laboratories at Berkshire Medical Center, says that if the sample "had been submitted asking for gonococcus, if we had a heads-up that that was what we were looking for, we would have done those biochemical tests that resulted in positive identification."
As for Christine Baxter's hymen, Sheeley testified that there were "two small posterior tears in the hymenal ring and there was a large anterior tear toward the urinary opening." She said the smaller tears were 1 to 2 millimeters in length, or "a quarter of an inch" (actually much smaller). Asked by Ford what these injuries indicated, Sheeley said, "I feel they are consistent with what we call a full penetration, which would occur by insertion of a penis or an object as large as perhaps several adult fingers."
Sheeley, who now practices in Springfield, did not return telephone calls. For this story, her testimony was sent to Vandeven at Children's Hospital and to Astrid Heger at the University of Southern California Medical School, with the question: "Are such features nowadays considered to be common in nonabused children, as Bernard Baran's advocates contend?"
Heger replies: "What she is describing is notches - she is calling them 'tears,' then she says there is a big one toward the front. My prediction is that 50, 60 percent of the time, this large tear is normal anatomy. That is completely and totally accepted. The small tears posterior could be congenital notches, they could be normal anatomy. I would think the medical evidence needs to be tossed out."
Vandeven says it appears that Sheeley, from her description, had carried out the exam properly but says it is hard to give a definitive answer to the question because "her verbal description is vague, and it's hard to tell exactly what she saw." Even so, Vandeven says, "The state of knowledge has changed since 1985, and some of the things she described would be considered normal today. Tears in the hymen are never normal - they always indicate trauma. But I'm not sure this kid had tears, based on the transcript."
Heger and Vandeven both made one point: Even in cases of verified abuse, most of the time there is no definitive physical evidence. Before that fact was well accepted, says Vandeven, "There was a lot of pressure on physicians to find things. People wanted physical corroboration, because there were no witnesses. I still get pressure from DSS that 'I hope you find this.' I say to attorneys, 'The physical stuff is usually neutral; it won't help the defense or the prosecution.' "
If one were to subtract the physical evidence from the Baran case, what is left are five children, ages 3 to 5, saying Bernie Baran did these things to them. Along with each child's testimony there was also a "fresh complaint," a form of hearsay allowed in Massachusetts courts only in sexual assault cases: what the alleged victim told others, especially the first person told, about the incident.
Toddlers cannot be conspirators. If Baran is innocent, the physical evidence must have been flawed and the children's incriminating statements must have been planted in their minds by several adults, all more or less at the same time. Though research shows that child disclosures can be tainted by adult pressure or suggestion, if it happened in this case, there is no clear sign of it.
Police notes on their initial contacts with the children are sketchy, but they show no interviewer pressure to incriminate Baran. After the Gruen complaint and the arrest, Baran's name was public information, and it appears that several of the other parents used it when they questioned their children. Still, the specifics of what the children said, even if Baran's name had been mentioned to them, are few and similar.
When the allegations began, psychologist Jane Satullo (now Jane Satullo Shiyah of Williamstown) was asked to meet with all ECDC children. She met with successive groups and gave a puppet show developed by the Massachusetts Society for the Prevention of Cruelty to Children. "It was a very low-key puppet show that talked about private parts," recalls Shiyah. "If anyone touches your private parts, say no and tell an adult - if anyone touches you: a stranger, someone you know and like, teacher, an uncle or aunt. The important part is not to suggest a particular person, not a particular relation or gender, but to throw out a wide net, so that if a child comes forward, any person mentioned would come out of this wide net."
The videotapes of Shiyah's individual interviews at the DA's office were not viewed for this story (Downing says he has been unable to locate them, and adds that since they were ruled inadmissible as evidence, they might have been erased long ago), but it is not apparent from police notes that she led or pushed the children to incriminate Baran.
Shiyah recalls: "I tried to make all the questions open-ended. With some children, you might want to get them to think about the possibilities, but never would I give the first or last choice." She says she was well aware of the suggestibility of small children: "It isn't only children. All of us can be swayed and led when we are trying to recall events. With children, because there's an imbalance of power, and adults tell them what to do, it's important to be conscious of the questions. Children want to please us, especially little ones. If you say, 'Sweetie, didn't he do this?' they might say, 'Oh, yeah.' "
It is true that the Gruens, the parents of the first accusing child, disliked Baran ahead of time and were suspicious that he might be a threat to children. Roger Gruen had angrily called ECDC a few days before the arrest and taken the boy out of the center because he and Susan did not want a gay man working with Philip. Susan sued ECDC a few years later (the suit was settled in 1995). She testified that she and Roger had watched a TV documentary about child sexual abuse at about this time, which described emotional disturbances that might be signs of abuse. Then she had said to Roger, "Philip is showing all those signs."
Both Susan and Roger later testified that they had been using drugs heavily during that time, and they split in October 1984. Sometime in 1985, Philip, by then 4 1/2, accused a later live-in boyfriend of sexually abusing him. According to Susan's civil testimony, DSS and Pittsfield police looked into it but decided there was nothing to it. Chatelle believes there may be undisclosed information about this investigation that would exculpate Baran; that if the child actually had gonorrhea, it must have been given to him by someone else. However, the other boyfriend did not arrive on the scene until 1985, after Susan and Roger Gruen had separated in October, long after the gonorrhea test.
Today the rambling old house at 49 Francis Street is closed and vacant, and a locked chain-link fence surrounds the yard, with its two huge weeping willows. After the trial, ECDC changed its name to The Dorothy Amos Center, in honor of its founder. But financial and administrative woes multiplied, until in 1992 the Berkshire Center for Families and Children assumed control. Director Carolyn Burns says that a year and a half ago, the Berkshire Center concluded that the old building, "despite safety measures, was a fire hazard. It was not well suited to child care. We ended up moving out of the building."
Barring some other strategy, John Swormley will eventually file a motion for a new trial for Bernard Baran. If the motion is granted, Downing will have to decide whether to prosecute again. "We could and would try it again if the families were willing," he says firmly. Of course, no DA would say otherwise. But a retrial would not be easy. If the children, now ages 18 to 20, were not willing to testify or could not remember, that would put a heavier burden on the medical evidence. And "fresh complaint" testimony - in this case, what the children said to their parents or the original interviewers - can only be used to corroborate direct testimony, not as a substitute for it.
Baran says he has received about 60 letters since the Pollitt column in The Nation and another piece, by Chatelle and D'Entremont, in the Boston-based gay magazine The Guide. He waits and hopes.
"Some days are harder than others," he says. "Whenever another case is overturned or is heard legally, it gives you a little hope, but at the same time it saddens you, because you wonder if your chance is ever going to come to prove your innocence. I would say that sadness comes a lot quicker than hope after all these years."
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