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Bernard Baran was 19 when, on January 30, 1985, he entered the Massachusetts correctional system. Twenty-one years and five months later, on June 30, 2006, the gay former daycare worker walked out of Berkshire County District Court and into the arms of his family. Now 41, Baran has spent more than half his life in prison for crimes he insists he did not commit.

Two weeks before Baran's release, Judge Francis Fecteau of Worcester Superior Court awarded him a new trial, overturning his 1985 conviction on three counts of child rape and five counts of indecent assault and battery on a child. Fecteau's 79-page Memorandum of Decision directly addresses just one of Baran's grounds for appeal-- ineffective assistance of counsel-- but preserves others, including prosecutorial misconduct, for future use.

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The ruling came one year after the end of evidentiary hearings on Baran's first motion for a new trial, and two years after the motion was filed. Following negotiations over the terms of his release (and some stalling on the part of the Berkshire County DA's office), Baran was freed on $50,000 bail pending a new trial that may never take place. He had been serving three concurrent life sentences.

Out, and on the outs

In 1983-84, Bernie Baran was probably the only uncloseted gay daycare worker in the Western Massachusetts industrial city of Pittsfield. Despite Baran's stated preference for working with the elderly, the Berkshire Training and Employment Youth Program placed the young high school dropout in a teacher's aide position at the Early Childhood Development Center (ECDC), a preschool serving low-income families.

Baran had been working at ECDC for about 18 months when a woman named Julie Heath began complaining that the preschool, where her son Paul was enrolled at a social worker's insistence, had "a queer" on staff. (In a later deposition, Heath said she thought gay people "shouldn't be allowed out in public.") In September 1984, when local media were hyping the arrest of Malden, Mass., daycare worker Gerald Amirault on child-molestation charges, Heath's live-in boyfriend called ECDC to take the administration to task for allowing a homosexual to work with children.

On October 1, Ms. Heath removed her son Paul from the school; five days later, her boyfriend told police that the boy had come home from school the day before with blood on his penis, and had said that Bernie was responsible. The boy's penis showed no sign of injury, but when police appeared at ECDC and revealed that Baran was suspected of sexually assaulting a child, the resulting hysteria spawned more accusations.

The first of these, coming from a middle- class member of ECDC's board of directors, served to validate allegations made by Julie Heath, whose history of drug abuse and domestic turmoil-- well known to local authorities-- did not enhance her credibility. Then, through a test now known to produce a high rate of false positives, Paul Heath was found to have gonorrhea of the throat. (See The Guide, December 1999, May 2000, and December 2004; a detailed chronology of this complex case can be found at www.freebaran.org/chron.html.)

Baran was arrested on October 6. The Berkshire County DA's office readily obtained indictments after showing a grand jury edited videotapes of children's interviews with therapists and police. The case expanded to five alleged child victims, with a sixth thrown in at the last minute without grand jury review, and proceeded to a jury trial with exceptional speed. The children's testimony went into rehearsal weeks in advance.

Lawyer lazy

Baran's mother hired Leonard Conway, a lawyer who failed to inform her of his inexperience at criminal defense, on a $500 retainer. Conway did minimal pretrial preparation, making no effort to investigate the allegations or to screen witnesses, and all but waiving the fact-gathering period of discovery that normally precedes a criminal trial. Once the trial began, Conway's defense was a series of pratfalls. In awarding Baran a new trial more than 21 years later, Judge Fecteau states that "counsel's failings were so grave, so fundamental," that the original trial process "cannot be relied on as having produced a just result."

Fecteau cites Conway's failure to obtain and/or make use of videotaped interviews of the alleged victims; his failure to retain and/or consult with a psychologist or other expert, or to conduct any investigation; his failure to challenge opinion testimony on the truth- telling of children; his failure to attempt to exclude specious evidence concerning gonorrhea; his failure to protect Baran from improper "fresh complaint" hearsay evidence; his failure to protect Baran from the introduction, with no probable cause hearing, of the additional child whose evidence had not reached the grand jury; and his failure to protect Baran's Sixth Amendment right to a public trial by readily acceding to the closing of the courtroom during the children's testimony.

Kisses & cudgels

Perhaps Conway's worst blunder was his failure to address the prosecution's use of edited interview footage Baran's present chief counsel, John Swomley, calls "compilations of naughty bits." The unedited tapes show the children denying that Baran had touched them, accusing others of abuse, and responding in confusion to leading questions, trick questions, bribery, and dogged nagging. Interviewers sometimes brought in parents to help coax the children toward the desired response-- i.e. they had been molested by Baran.

"Standing alone," Fecteau notes, "without further comment from an expert, the unedited tapes would likely have had impact on the jury's consideration of the credibility of the children, and, perhaps more significantly, on the credibility of the interviewers themselves."

It seems not to have bothered Leonard Conway that he, his client, the grand jury, and the trial jury only viewed edited tapes. Nor did he attach much importance to examining the interview footage in any form. Halfway through the nine-day trial, he admitted he had just begun to look at the tapes.

(Years later, the unedited tapes were conspicuously missing and thought to have been destroyed. But Baran obtained most of them at the end of a four-year struggle, after Berkshire County DA Gerard Downing, a member of the original prosecutorial team, suffered a fatal heart attack in December 2003. Downing's successor, David Capeless, perhaps failing to understand the implications of that strand of evidence, soon located the tapes and handed them over to Baran's legal team.)

Judge Fecteau states that Conway also erred by portraying Baran to the jury in his opening argument as a "19-year-old homosexual." Fecteau points out that by introducing Baran's sexual orientation, an element he calls "both irrelevant and highly prejudicial," Conway reinforced prosecutorial efforts to suggest that Paul Heath must have contracted gonorrhea from Baran since the venereal disease, according to one of the DA's experts, was rampant among homosexuals. That Baran himself did not have gonorrhea was made irrelevant. (That Paul Heath had credibly accused a likelier source of infection-- one of his mother's many boyfriends-- emerged only after the trial.)

The prosecutors' ethically carefree use of gonorrhea evidence continued even after the charges involving Paul Heath, the original accuser and presumed gonorrhea sufferer, were thrown out of court. When he entered the courtroom to testify, four-year-old Paul yelled, "Hi, Bernie!" and tried to run over to his purported rapist. On the witness stand, he refused to cooperate, saying to Assistant DA Daniel Ford, "I don't like you," and "Fuck you!" Judge William Simons dropped Paul Heath from the case, though the Heaths' evidence remained before the jury with no objection from Conway.

Fecteau observes that "following the involuntary dismissal of the only indictments for which this [gonorrhea] evidence was concerned, even if relevant and otherwise admissible, it is inconceivable that no effort was made to seek a mistrial, or, at the least to move to strike all such testimony from the jury's consideration, as it had no further place in the trial."

The trial ended, however, in the first of many hysteria-driven molestation convictions of American daycare workers in the 1980s. Baran's conviction resulted from a perfect storm of bigotry, delusion, prosecutorial ruthlessness, and lawyerly ineptitude.

Leonard Conway did not appear as a witness at any of last year's evidentiary hearings or offer testimony by any other means, pleading fragile health.

Odyssey continues

Berkshire County DA David Capeless, who continues to insist that Baran received a fair trial, has vowed to challenge Fecteau's ruling in the Massachusetts Court of Appeals. The ruling is carefully crafted, firmly grounded in precedent, and facially difficult to contravene. But observers of the highly politicized Bay State justice system know that in Massachusetts, anything is possible.

If Capeless loses his appeal, he says he intends to bring Baran back to trial-- a prospect Baran lawyer Harvey Silverglate calls " insane." Many Pittsfield residents believe that Capeless, now campaigning to retain the office he inherited from the late Gerard Downing, is simply posturing.

Baran, meanwhile, is living at an undisclosed location near Boston. As he awaits a final outcome, the conditions of his release resemble those imposed on a parolee. He must wear a GPS monitoring bracelet at all times, observe a ten o'clock curfew, avoid unsupervised contact with persons under 16, and report to a probation officer once a week.

For Baran, freedom presents an array of challenges. These that include learning to be alone, coping with new technologies, and living in compliance with court-ordered limits. "In prison I was locked in every night at nine-thirty," he recalls. "Now I'm locked in at ten. That part feels the same."

The best aspect of being free, he says, is "spending more time with family and friends, people I love and who love me, who are around me because they want to be, not because they have to be. I'm just taking each day as it comes, and trying to stay open to everything new. Each experience marks the start of my new life."