Topic: Berkshire County's Judges.
Too lenient? Too harsh? Fair? Unfair?
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posted by G.M.Heller at Wednesday, March 30, 2005
Wednesday, March 30, 2005
About Me
- Name: G.M.Heller
- Location: Berkshire County, Massachusetts, Washington, D.C., United States
Hailed by Berkshire cognoscenti as that "crank on the grassy knoll".
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A BERKSHIRE EAGLE COLUMN:
Notes & Footnotes, D. R. Bahlman
A year later, Baran's case is stalled
Tuesday, June 12, 2007
A year ago this month, a Superior Court judge in Worcester ruled that Bernard Baran was entitled to a new trial. Soon afterward, Baran was released on bail from state prison, where he had spent nearly 22 years telling anyone who would listen that he did not commit the horrific sex crimes of which he was accused by children in the Pittsfield day care center where he worked as an aide in the mid-1980s.
During a series of hearings held in 2005, the judge reviewed evidence that included videotapes of interviews conducted with Baran's accusers, some of whom were as young as 3. He heard expert testimony about how relatively easy it is for well-meaning adults to get young children to say virtually anything grownups want them to say, and that interview techniques developed over the past 20 years are designed to help ensure that questions elicit truthful answers, not the answers that anxious-to-please children sense that adults want to hear.
It is worth noting that in none of the videotapes that were shown to the trial jury did a child make a direct statement accusing Baran of sexual abuse. In addition, no one has disputed Baran's statement that he was offered a deal prior to trial: six years in the House of Correction in exchange for a guilty plea. Baran turned it down flat, insisting on his innocence. When an apparently incompetent defense and an overzealous prosecution are thrown into the mix, the risk of a miscarriage of justice rises to an unacceptable level and a new trial must be ordered, as it finally was on June 23, 2006.
One of the tragedies of the Baran case is that his conviction was the result of good intentions gone dangerously awry in a judgment-numbing atmosphere of hysteria. The forensic and psychological science of child sex abuse investigation has come a long way since 1985; it would be hard to find anyone — inside or outside the criminal justice system — who honestly believes that Baran would not be acquitted if the same case were to be made against him today.
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Baran, who was 19 when he was convicted of multiple rape charges in Berkshire Superior Court, recently celebrated his 42nd birthday. Photos of the event show Baran and his family enjoying a backyard picnic in the sun. Brightly colored balloons and table decorations can be seen in the pictures.
What is not shown is the global positioning system transmitter on Baran's ankle. According to Baran's lawyer, John Swomley of Boston, the device occasionally malfunctions, sending no signal or erroneous signals to the probation officials who keep tabs on Baran 24 hours a day.
The birthday party photos show a semi-free man.
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Baran, who lives and works near Boston, is in legal limbo, a condition that will persist unless his case is allowed to proceed through the court system.
Anyone who has followed the case in hopes of learning whether or not the Massachusetts Appeals Court upholds Superior Court Judge Francis Fecteau's order of a new trial could be excused for thinking that the Appeals Court is still considering the matter. It isn't. It hasn't begun to.
Berkshire District Attorney David F. Capeless, who is appealing Fecteau's ruling, has vowed that he will retry Baran if the Appeals Court upholds the decision.
Apparently, the district attorney will have a while to wait, and the reason for the delay can be placed near his own doorstep. The appeal has not been docketed because the record of the trial has not been sent to the Appeals Court.
Earlier this month, Swomley filed a motion to compel the clerk of the Berkshire Superior Court, Deborah S. Capeless, the district attorney's sister-in-law, "to transmit the assembled record to the clerk of the appellate court. Clerk Capeless has a legal duty to act ... and has failed or refused to do so." To be sure, the trial record is enormous. There are stacks of documents that measure by the yard, not to mention videotapes and various exhibits. Nevertheless, the Baran case has been the subject of two appeals over the years, and this won't be the first time the record has been assembled and "transmitted." One veteran observer of the Baran case notes the irony of a defendant's lawyer taking extraordinary steps to advance an appeal brought by the prosecution.
The irony probably would be lost on Bernard Baran. He and the many thoughtful and fair-minded people who believe he was railroaded would be more likely to consider the relevance to his case of the old maxim of "justice delayed is justice denied."
Letters may be sent care of The Eagle, P.O. Box 1171, Pittsfield, MA 01202. E-mail is notesandfootnotes at yahoo dot com. Telephone is (413) 441-4278.
Jurist Botsford seen as SJC pick
Would be Patrick's 1st nominee to court
By Frank Phillips, Globe Staff | July 26, 2007
Governor Deval Patrick will nominate Suffolk Superior Court Judge Margot G. Botsford today to fill a vacant seat on the Supreme Judicial Court, turning to an experienced and highly respected jurist and former prosecutor for his first nomination to the high court, according to two sources with knowledge of the selection.
The sources told the Globe yesterday that Patrick will announce Botsford's nomination at a State House press conference this morning. Her name will be forwarded to the Governor's Council for confirmation. Her appointment, to fill the vacancy left by Justice Martha B. Sosman's death in March, would make her the third woman on the seven-member court.
Botsford, 60, has frequently been a finalist for an SJC seat and has strong connections with the liberal Democratic establishment. Governor Michael S. Dukakis appointed her to the bench in 1989. Her husband, S. Stephen Rosenfeld, served as both chief of staff and legal counsel to Dukakis and has been a campaign contributor to Patrick. The couple live in Jamaica Plain.
In the 1970s and 1980s, Botsford worked as a prosecutor in the offices of Attorney General Francis X. Bellotti and Middlesex District Attorney Scott Harshbarger, both liberal Democrats.
But legal observers said her judicial rulings give little indication of her personal political leanings. In fact, when Republican governors William F. Weld and Paul Cellucci filled a series of SJC openings in the 1990s, Botsford frequently made the list of finalists.
Patrick chose her over five contenders, most of them judges. The names of the other finalists could not be confirmed.
Botsford's age was a consideration in Patrick's decision; the mandatory retirement age is 70 for judges, which would allow her only 10 years on the court, according to the sources who confirmed her nomination. But Patrick was apparently drawn not only to her intellectual grasp of legal issues, but also her ability to build consensus. Reports in legal circles describe an often-divided SJC, most notably in its controversial 4-to-3 decision in 2003 declaring same-sex marriage legal in Massachusetts.
The sources said Botsford is expected to reflect Patrick's liberal positions on controversial social issues such as abortion, the death penalty, and gay marriage, as well as on civil liberties. Much of her work on the bench in recent years has involved handling the court's business sessions, which focus on corporate and business cases.
Botsford, a New York native who received a law degree from Northeastern University in 1973, has a reputation as a legal scholar during her nearly two decades presiding over a host of civil and criminal trials. Members of the legal community said her colleagues marvel at her work ethic, which often has her working late into the night on complicated cases.
"She is universally regarded by lawyers and litigants for her knowledge of the law, her wise discretion in applying the law, her unwavering fairness, and her unimpeachable character," said Josh Wall, first assistant Suffolk district attorney. "By all measurements, she is at the top of the judiciary."
"She is A-plus," said Michael S. Greco, a Boston lawyer who recently stepped down as president of the American Bar Association. "There is no doubt in my mind that she has the intellectual firepower to handle some of the state's most complex cases."
He said yesterday that Botsford has a reputation for fairness that, along with her work ethic and grasp of legal issues, has earned her colleagues' respect. "She embodies all the attributes and qualities of an outstanding judge," said Greco, a partner in the law firm K & L Gates.
Botsford has handled a number of high-profile cases, including a 2003 ruling that cleared the way for construction of a controversial runway at Logan International Airport. It opened in December.
But her decision with potentially the broadest impact was when, in a 350-page report issued in 2004, she sided with some of the state's poorest school districts in a landmark lawsuit challenging the way the Commonwealth finances its 1,900 public schools. The case involved 78 days of trial and 114 witnesses. She reviewed more than 1,000 documents.
The SJC, in a 5-to-2 decision in February 2005, overturned her decision. But the justices praised her work. Chief Justice Margaret H. Marshall described Botsford's report as " a model of precision, comprehensiveness, and meticulous attention to detail."
The Baran appeal
Editorial
The Berkshire Eagle
Wednesday, September 05, 2007
The legal system convicted Bernard Baran in haste but has been dealing with him at its leisure ever since. The decision of District Attorney David Capeless to appeal a judge's decision to free the former day-care worker convicted of child molestation was not unexpected, but given its predictability, it is puzzling why it took more than a year for the appeal to be filed. Ideally, matters will precede more quickly from now on.
Mr. Baran was convicted of molesting five children at a Pittsfield day-care center in 1985 and sentenced to life in prison. After about a year's deliberation, Worcester Superior Court Judge Francis R. Fecteau overturned the conviction in June 2006 on the grounds that the incompetence of Mr. Baran's attorney denied him a fair trial. That failure on the part of the defense, however, came in the context of a badly flawed prosecution, as Judge Fecteau made clear.
If an Appeals Court strikes down Judge Fecteau's ruling, Mr. Baran, who was freed last summer on a $50,000 bond after 21 years of incarceration, would be returned to prison. If the ruling is upheld, Mr. Capeless must decide whether or not to retry Mr. Baran. In the initial trial, since discredited techniques were employed by the prosecution to dislodge "repressed memories" from allegedly abused children. These children are now adults and three have recanted their testimony against Mr. Baran. The first trial was conducted in a climate of gay paranoia that happily has abated, and in a second trial, the defense would have access to relevant evidence it was denied in the first trial.
A three-judge panel will hear the appeal in Boston and we hope this process will move quickly. The amount of time Mr. Baran has spent waiting for decisions to be made on his life could be considered cruel and unusual. If the panel upholds Judge Fecteau's decision, which we believe it should, the ball returns to the court of Mr. Capeless, who must decide if his office, which is dealing aggressively with crime, drugs and gangs in the Berkshires, should continue its pursuit of Mr. Baran.
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