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I still remember vividly my contracts professor at George Washington University Law School, Max Pock, a conservative politically, slamming down on the podium and insisting vigorously in his Austrian accent, “I tell you I am sure the prisons are full of the ghost of innocent men.” One of those ghosts was Bernard Baran.

“It cannot be said that the defendant received anything close to a fair trial,” declared the Massachusetts Court of Appeals. Bernard Baran made one big mistake: he was gay in the 1980s. It was a different time. Situation comedies were not filled with gay characters. In 1985-1986, a 14-year-old Ryan White, who contracted AIDS through a blood transfusion, was fighting for the right to continue to attend school.

For much of the 20th Century, homosexuality was viewed by those in the psychological professions as a “mental illness.” A 1950s PSA, “Boys Beware,” explicitly equated predacious pedophilia with homosexuality — “What Jimmy didn’t know was that Ralph was sick. … Ralph was a homosexual.” Some of the parents who had children at Pittsfield’s Early Childhood Development Center where Baran worked apparently harbored these beliefs.

Born May 25 1965, Bernard Baran was sent to jail in January of 1985, at the age of 20. He was accused, tried, and convicted in three months time. He would not walk out of jail until June 30, 2006, 21 years later. With his death last week at the age of 49, he spent 43 percent of his life in prison. If one becomes an adult at 18, 68 percent of his adulthood was spent behind bars. Baran was robbed of a life.

The case was rife with prosecutorial misconduct. This included the failure to turn over numerous pieces of exculpatory evidence including (1) unedited tapes revealing significant vacillation and uncertainty on the part of many, if not all, of the children interviewed, (2) documents from the Department of Social Services that a “boy A” and a “girl E” each had been molested by their respective mother’s boyfriends, or (3) evidence that in numerous instances various complainants denied that the defendant had engaged in any misconduct. In addition, suggestive interviewing techniques were used on children ages 3-5. Closing arguments were so inflammatory that the Massachusetts Court of Appeals ruled them be a flagrant act of prosecutorial misconduct.

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When Judge Francis Fecteau from Worcester granted the new-trial motion in June of 2006, District Attorney David Capeless fervently defended the conduct of then prosecutor Daniel Ford, now a Superior Court judge. The Appeals Court heard the arguments in February 2008. They issued a strong decision on May 15, 2009 firmly rebuking Capeless’ arguments and essentially ruled that the original trial was a sham of justice.

 

On June 11, 2009, I wrote a column in this newspaper entitled, “No defense for this trial,” which can still be read online at The Eagle website. I criticized District Attorney Capeless for defending the case. To the best of my recollection, no member of the Massachusetts bar that regularly practices in Berkshire County courts publicly criticized Capeless for defending this outrageous case before both the Worcester District Court and the Massachusetts Court of Appeals. Capeless’ actions were not a momentary lapse of poor judgment, but rather the inexcusable and immoral defense of rampant prosecutorial misconduct.

Capeless will be the only candidate on Tuesday’s Democratic ballot for district attorney. There is no Republican candidate. It is a real shame Capeless is unopposed. I will be writing-in “Bernard Baran” for district attorney as a protest vote in both the primary and the general election: I would suggest you do the same.

Rinaldo Del Gallo is a local attorney whose columns have appeared across the country.