Wednesday, March 30, 2005

Topic: Berkshire County's Judges.

Too lenient? Too harsh? Fair? Unfair?
Your Feedback:

9 Comments:

Blogger jonathan said...

May 24, 2005

Dear Bloggers,

I believe that Berkshire County Sheriff is a corrupt politician and should be opposed. Last year, when I intended to oppose Nuciforo in the Democratic Primary, Carmen C. Massimiano, Jr. was very intimidating to me. On several occassions when I was gathering signatures to get on the ballot, he refused to sign. I asked one of his office workers to serve on my committee and he said that Carmen would fire him if he did. I have sat in a room where I heard Carmen talking about political adversaries and he used some of the most foul language to disparage and demean those who opposed him, including a slur to demean one who performs fellatio. I could not believe the garbage that came out of this man's mouth. He uses his power as Sheriff to intimidate and coerce people who participate in politics. I was one of his victims. One of the reasons why I dropped out of the 2004 State Senatorial Democratic Primary and moved to New Hampshire after being a lifelong resident of the Berkshires was due to the pure intimidation of this abhorrent machine politician. Now, I read about his positions on issues online. Carmen has opposed giving the Pittsfield Teachers a contract in his position as Chair of the School Committee. He also supports the full punishment and prosecution of 7 first time drug selling offenders from Great Barrington. Carmen confounds me because he acts in a split personality manner. Sometimes, he is abusive and intimidating; othertimes, he is nice and warm. This machine politician represents everything wrong with someone running a governmental agency or committee in a free country. What scares me more than anything else is that Carmen works for the Berkshire County Judges and Courts. I feel that the county's judicial establishment not only tolerates Massimiano's corrupt leadership, but also cultivates it. I believe that these judges are not putting the proper and ethical checks on their bureaucracies to see that the spirit of the law and liberal government are abided by. I think that the Berkshire County Judicial System is one of authoritarian control with no sense of fairness and equity to the common offender. I think that this trend in Berkshire County is a trend that is taking hold across the country and perhaps has been a reality since the dawn of man. Our country was founded on principles that give every citizen a sense of belonging as citizens. We were founded on finding the right path for the good life. All men should live under God' gift of human liberty. I hope that Carmen is put in check by the County's Judges and that change follows throughout the Berkshire Court System.

-Jonathan A. Melle

Tuesday, May 24, 2005 2:02:00 PM  
Blogger jonathan said...

Justice reconsidered:
Baran case back in court after 20 years
By D.R. Bahlman, Special to The Eagle
The Berkshire Eagle
Sunday, June 26, 2005

Over the past 20 years, Bernard Baran Jr. has been incarcerated in five state prisons in which he said he was the victim of numerous assaults, including rape.
Those who believe that Baran sexually molested children at a Pittsfield day care center in 1984 might say his current situation fits the crime, and that efforts to secure a new trial for him are driven by wishful hindsight and twisting of the facts and the law.

Others, however, believe that Baran's trial and his sentence of three concurrent life terms were travesties, chapters in a nightmarish story featuring a well-meaning but flawed investigation, an allegedly in-competent trial lawyer, misconduct by prosecutors and the inflammation of prejudices.

Recently, as he was recovering from mouth surgery that was botched by student dentists who treated him for an abscess, Baran described to The Eagle his encounter with a member of one of his accuser's families.

The man, who was incarcerated in the same prison as Baran, had been identified by officials as someone who could be a threat to Baran, and a transfer for the accuser had been arranged.

"He came up to me in the yard," Baran, 40, recalled in an interview at the Massachusetts Treatment Center in Bridgewater. "I was scared because I didn't know what he was going to do, but he said, "You don't have anything to fear from me. I know you're innocent.' "

In 1999, Baran told a supporter that the price of optimism was too high for him to pay.

"I fear the hope that others bring into my life because I'm always left alone in the pain," he said then.

The fear persists today, but Baran is encouraged by progress in his quest for a new trial on charges that he sexually molested five children at the now-defunct Early Childhood Development Center in Pittsfield 21 years ago.

A Superior Court judge in Worcester is considering testimony and reams of documents associated with the motion for a new trial brought by Baran's lawyer, John G. Swomley of Boston. The motion is opposed by Berkshire County District Attorney David F. Capeless. There is no word on when a ruling will be made.

As he has for more than two decades, Baran maintains his innocence.

"I did not do one thing they accused me of," he said. "I don't think I ever hurt anybody in my short 18 years of life out there."

Was teacher's aide

Baran was 19 when he was arrested in Pittsfield on a Saturday morning in the fall of 1984. Openly gay and living with his male partner, Baran was employed at the Early Childhood Development Center as a teacher's aide.

He wasn't aware of it at the time, but in the week preceding his arrest, he was the subject of an intensive police investigation into allegations that he had sexually assaulted five ECDC pupils -- three boys and two girls ranging in age from 3 to 5.

What one of his supporters later described as the "runaway train" of a case that ended with his conviction and his sentence to state prison began rolling on Oct. 6, 1984, when the boyfriend of the mother of a 3-year-old ECDC pupil reported to police that the boy had "blood on or coming out of the end of his penis."

Earlier in the year, the boyfriend had declared to ECDC officials that he did not want a homosexual teaching his "son."

Examined by doctor

The day after the boyfriend contacted police, the couple took the boy to a pediatrician who, according to testimony the mother gave in a later civil trial, found nothing wrong with the boy's penis. The doctor found no cuts, bruises or scrapes. She also did a urinalysis to rule out internal bleeding and tested the boy for gonorrhea.

After two detectives visited ECDC, word of the investigation spread quickly among the staff of the day care center. Soon after she heard that Baran was under investigation, a staff member telephoned a friend, a woman who served on the ECDC's board of directors and whose 3-year-old daughter had been in Baran's room at the day care center for four months during the spring and summer of 1984.

After the phone call, the woman questioned her daughter and later reported that the girl had told her that Baran had touched her "privies" sometimes.

The woman contacted police, and two detectives visited her home. They reported that the girl told them Baran had touched her once on the "privies."

More accusations

After a meeting of parents of ECDC pupils and publication of a news story about Baran's arrest on charges of molesting two 3-year-olds, four more accusers came forward, and Baran, who had been released on bail after his first arrest, was rearrested. By the end of October 1984, six alleged victims had been identified. Charges relating to one of the six children were dismissed by the court at the end of testimony in Baran's trial.

Adding urgency to Baran's second arrest was the pediatrician's finding that the gonorrhea test on the initial accuser, the 3-year-old boy, had come back positive.

Upon his arrest, Baran tested negative for the disease. This, in addition to evidence that the test in use at the time was notable for producing high rates of false-positives, was raised in Baran's defense at the trial.

Prosecutors suggested that prompt treatment of gonorrhea can clear the infection quickly. Baran, however, was allergic to penicillin, which was among first-line treatments.

Joseph Collias, who retired from the Pittsfield Police Department in 1998 after 21 years of service, was one of the detectives assigned to the Baran investigation.

"It was the first major sex abuse case we had," Collias told The Eagle in a recent interview. "There was lots of pressure to make sure that everyone was interviewed."

Collias said that, because of the relative novelty of multiple accusations of sexual abuse of children in 1984, there was virtually no information to guide investigators.

"We did the best case we could," he said. "Do I think it would hold up now? Probably not."

In the years since the Baran conviction, Collias, who is a self-identified victim of sexual abuse suffered when he was a child, has worked to improve the resources available to families and investigators involved in child sex-abuse cases. He was a charter founder of the Kids' Place on Wendell Avenue.

No specific training

In 1984, however, few interviewers had specific training in the investigation of child sexual assault, and there were no specially designed facilities in which to interview children. Such methods as the use of anatomically correct dolls were prevalent.

"The dolls were thought to be the greatest thing since sliced bread," Collias said. "Now it's proven that you can't (use them)."

Although he concedes that the Baran case probably would have been investigated differently if today's body of knowledge were available 20 years ago, Collias stopped short of declaring Baran guilty or innocent.

He also noted that rape is a crime of violence in which the perpetrator seeks to exercise control over a victim. A rapist's gender and sexual orientation don't necessarily drive the choice of victims of either sex, Collias said, recalling that confusion existed about why a gay man would sexually molest a girl.

The efforts of Swomley -- Baran's current lawyer -- and supporters to secure a new trial for him rest on attempts to rearrange the trial record and the law to suit themselves, prosecutor Capeless told The Eagle.

"The injustice that occurred in this case ... was not upon Bernard Baran; it was committed by Bernard Baran," Capeless said. "It was committed by him, his attorneys and his supporters on the victims and their families. That injustice is being committed today by their repeated, exaggerated and unsubstantiated claims, and the shameless distortion of the record evidence in this case."

If Baran receives a new trial, he and his supporters and attorneys agree, it will be in no small part because of the investigation of the case by lawyers for the insurance company that carried a liability policy on ECDC.

Facing at least one civil lawsuit alleging that inadequate supervision made it possible for Baran to sexually molest children, the insurer launched an extensive inquiry that revealed, among other things, that the family of the first accuser was deeply troubled.

Violent relationship

The mother and her boyfriend abused drugs and were drug informants for the Pittsfield Police, according to the insurance company's investigators. The mother was treated for at least one overdose. The couple's relationship also was said to have been violent: The boyfriend once held the woman from a second-story window by her ankle.

"After Baran's trial, according to the insurance company report, (the boy) made a spontaneous, detailed and credible disclosure of sexual abuse to a foster mother," wrote Robert Chatelle, a journalist and Baran supporter, in an account of the case. "The accused was a friend of (the mother and her boyfriend) who moved in not long after (the mother) threw (the boyfriend) out -- which happened a week or so after Baran's arrest. ... And, according to a 'sidebar' during the trial, Baran's lawyer, Leonard Conway, said witnesses had overheard a loud argument between (the mother and the boyfriend) during which (the mother) accused (the boyfriend) of having gonorrhea."

Baran's trial lasted about a week; the jury deliberated for three hours before returning its verdict.

Then-Superior Court Judge William W. Simons, who had excluded from the jury's consideration the charges related to Baran's first accuser -- when called to the stand, the boy responded with obscenities to some of the prosecutor's questions -- ordered Baran to serve three concurrent life terms in state prison.

Cause taken up

During the 20 years that have passed, Baran's cause has been taken up by several attorneys. A "Free Bernard Baran" Web site has been established, and the National Center for Reason and Justice accepts donations for Baran's defense.

Baran said he welcomes the support and declared that he considers no aspect of the case off-limits for investigation by anyone.

Last year, Swomley and some of Baran's supporters were angered when a Williamstown man sought to contact one of Baran's accusers.

"Sometimes (supporters) need to think about me and not how upset they are over what happened to me," Baran said.

When he was arrested, Baran said, he believed that he was the victim of a mistake, and his optimism that it would be set right persisted until several days into his trial.

"I thought the truth was going to come out," he said.

However, Baran said, Conway's appearance in court one day dressed in the same clothing he'd worn the day before made Baran wonder whether his lawyer had been sleeping in his car.

"It was at that moment that I got that feeling in my stomach," Baran said.

In a hearing before Superior Court Judge Francis R. Fecteau in Worcester, Baran's mother, Bertha Shaw, said her worries about the case intensified when she got an anonymous call one evening during the trial in which the caller said Conway was drinking in the bar of a Pittsfield bowling alley. (Conway had been retained by Baran's mother for $500, money she raised by selling her car.)

Shaw testified that she visited the bar and observed Conway there but did not accost him.

In a recent interview with The Eagle, Conway said he was visiting the bowling alley, which was owned by his family, to see relatives. If he was drinking, the attorney said, it was "very little."

The recollections of lawyer and client differ in many respects -- for instance, Conway denies Baran's statement that Conway repeatedly assured him that success was likely -- but they agree that a plea agreement was offered by the prosecution.

Under the deal, Baran would plead guilty to a reduced number of charges and be sentenced to consecutive terms amounting to six years, time that would be served in the Berkshire County House of Correction.

Deal 'pre-approved'

In a telephone interview, Conway said the plea agreement was "preapproved" by Simons, the judge.

Baran turned down the offer.

"I wouldn't take it because I didn't do anything," he said recently. "If I had, why wouldn't I take the deal? I'd be out in six years and be able to get out and start molesting kids again."

Conway defends his conduct of the case and characterizes as "slanderous" the allegations of Baran's current legal team that his representation of Baran was incompetent in many respects.

Baran has been a resident of the Massachusetts Treatment Center in Bridgewater for about 15 years. Now operated by the Massachusetts Department of Corrections, it initially was overseen by the state Department of Mental Health.

Residency at the center is by petition from senior officials of other correctional institutions, and Baran was "petitioned in" by several superintendents who concluded that he would be safer there.

The petitions were filed as a result of "problems" Baran encountered in the general prison population, including being the victim of sexual and other physical assaults.

Another prerequisite of residency in the treatment center is taking responsibility for the crimes charged.

During a hearing before Fecteau, Capeless referred to documents that allegedly report Baran's acknowledgment of his guilt.

Baran said he never made such a statement. Rather, he said, his answer to a doctor's question -- that his treatment should aim to deal with his homosexuality and associated issues -- was misinterpreted as an admission of guilt.

Earned diploma

Baran, who quit school after ninth grade, earned his high school diploma in prison. He works in the treatment center's kitchen as a baker.

"I can't keep thinking too much about the outside," he said in reply to The Eagle's question about what he would do if he were released. "I left society when I was 18. This time has made my family strangers to me."

Baran has two brothers and a sister. His father left the family when Baran was 3. Baran's mother said the incarceration hasn't changed her son.

"He's still that caring, considerate person he always was," she said. "I'm not the same. I have an anger inside me. ... It's more toward the system and some of the parents of the children because I think that greed was part of it. ... There's a part of me that's totally changed. ... He and I keep each other's spirits up, we lean on each other. One day, the truth will be told."

Tuesday, June 28, 2005 11:07:00 AM  
Blogger jonathan said...

Re: My very negative feelings towards Carmen C. Massimiano Jr.

Dear Berkshire Bloggers,

Yesterday afternoon, September 15, 2005, I had the pleasure of eating dinner out with my parents and 3-year-old niece. My dad bumped into another Pittsfield native and they reminisced about their friendship there. During their conversation, they mentioned Sheriff Massimiano and my dad said he was a good guy, among other praises. When my dad’s acquaintance left, I told my dad how I resented him saying such nice things about a person who was so very mean and negative towards me during my 28-years of living in Pittsfield. I mentioned to my dad how Massimiano made it a point to not sign my nomination papers when I wanted to oppose state Senator Andrea F. Nuciforo, Jr. in the 2004 Democratic Primaries. I said to my dad that he was there at one of those events, and how Massimiano spoke to me in such a put down tone of voice. My dad replied that Massimiano was wrong. I replied to my dad that I cannot choose his friends, nor he mine. I just asked my dad not to praise Massimiano in my presence because I find it distressing and insensitive. My dad said he would respect my wishes. My mom then mentioned Massimiano’s close friend, Cliff Nilan, who works as a Chief Probation Officer in the Berkshire Superior Court. My mom said that my dad and Nilan call each other and their relationship keeps my dad close to Massimiano. Again, I said to my mom that Massimiano is not a nice man. He uses the most foul language and refers to people in vulgar and sexually humiliating words that I did not want to say, but hinted at, such as Massimiano calling one of his adversaries the vulgar slang for one who performs oral sex on a man. My mom said that Massimiano represents a mentality and sample of a debase cultural class. I also told my mom that I don’t have a problem with Cliff Nilan or my dad’s friendship with anyone. I just asked to be left out of it. Actually, I told my mom that I think Nilan is a nice person. I told my mom what I told my dad, and that is she may have her friends, and I may not like them, but to leave me out of it. If I am sitting with them, and Massimiano’s name comes up in the discussion, I would rather not hear about Massimiano. But what they think and do on their own time, away from me, I have no say in. I was just very insulted by my dad’s praises of Massimiano when he was so mean and intimidating to me last year. I concluded my stand by saying that the best way to deal with someone you dislike is to not give him or her any of your time. I said to my parents that I don’t want to talk about Massimiano anymore. I want to move on and enjoy our time and meal together. I am glad my dad was able to understand me, and even more receptive to my mother seeing things the way they really are. I was most thankful for being able to spend quality time with my family.

Sincerely,

Jonathan A. Melle

Friday, September 16, 2005 10:16:00 AM  
Blogger jonathan said...

9/17/2005

Baran trial was grossly unfair

Letters

Berkshire Eagle

Saturday, September 17

To the Editor of THE EAGLE:-

As a member of the jury that convicted Bernard Baran, I would like to elaborate on some of Dusty Bahlman's comments in his column of Sept. 6.

A broader perspective on the Bernard Baran case would have to include the ways in which he was trapped by converging cultural forces.

1) In 1985, fears about molestation of young children in day-care centers were being aroused, bolstered by rushes to judgment on all sides.

2) There was much more hostility then directed at gay persons.

3) Baran came from the less-privileged part of our society and was personally vulnerable (and he was not helped by his defense attorney).

4) It now appears that much evidence might have led to a not-guilty verdict was not made known to the jury.

I have left out specifics of his case because these have been replayed already in the press and before the judge now being asked to declare a mistrial some 20 years after the fact. I was belatedly made aware of much would have influenced the jury at the time of his trial and about which we were totally ignorant.

The question for me at this time is not one of guilt or innocence — I have no way of knowing the answer to that question. What I do know now is that his trial was grossly unfair for many reasons.

JOAN S. BURNS

Williamstown, Sept. 9, 2005

Saturday, September 17, 2005 11:37:00 AM  
Blogger jonathan said...

Dear Berkshire Bloggers:

There is an example of a good man: Pittsfield, Massachusetts' retiring Justice Alfred Barbalunga. I wish this good man a happy retirement.

My maternal grandmother, who turns 97 next month, told me that long ago, she walked to public school with Judge Barbalunga's mother. Both shared the same Italian first name and a love for Pittsfield. Judge Barbalunga was my father's boss at the Courthouse for many years and in the end advocated for my dad when he (and I) were (both) politically persecuted by one State Senator Andrea F. Nuciforo, Jr. If it wasn't for the kindness of Judge Barbalunga, my dad would have been fed to the Wolves by Nuciforo's political persecution. Thank God for Judge Barbalunga's kindness towards my father. I had the pleasure of attending Pittsfield Public Schools with Judge Barbalunga's kind daughter, Andrea. She was my class President when I graduated from Pittsfield High School in 1993. His son, Alfred, is also very thoughtful man and followed in my father's line of work in the Courthouse as a Probation Officer helping to keep our communities safe and our people rehabilitated.

Judge Barbalunga is a model of what a good and decent man truly is. He cares about people, his staff and his family. I wish more people in public service would be like Judge Barbalunga: A Good Man!

I wish a Happy Retirement to Judge Barbalunga!

Sincerely & In Truth,

Jonathan A. Melle

Wednesday, August 23, 2006 12:34:00 PM  
Blogger jonathan said...

Central Berkshire District Court

CORRECTION
By Nicole Sequino, Berkshire Eagle Staff

The Berkshire Eagle

Friday, January 19, 2007

Judge Fredric D. Rutberg has been a district court judge since 1994. A story in Friday's paper incorrectly reported how long he has been a judge.

PITTSFIELD — Before a packed courtroom of judges, officials, attorneys and prosecutors, the Honorable Fredric D. Rutberg was sworn in as the first justice of Central Berkshire District Court yesterday, promising to maintain the "quality of justice" established by his predecessors.

Rutberg gave a nod to Judge Alfred A. Barbalunga, who retired from the bench in September after serving for 26 years. Rutberg acknowledged the mark his colleague left in the courthouse.

"His memory is all over this place, and I will be respectful of that and, hopefully, take it to the next level," he said.

Rutberg was appointed to the position in November by District Court Chief Justice Lynda M. Connolly, who also took her oath of office yesterday afternoon.

Connolly said she consulted court officials before reaching her decision.

"You told me you were looking for fairness, understanding, equality and respect in a judge, and I knew Judge Rutberg embraced all of those qualities," she said.

Rutberg, 61, has served as a judge for 25 years in 12 district courts in Western Massachusetts. He also served as an associate justice in Southern Berkshire District Court in Great Barrington under his colleague, Judge James McElroy, who also spoke during yesterday's ceremony.

"Judge Rutberg is undeniably qualified and unquestionably suited for this position based on his intelligence, organizational skills and gentle demeanor," McElroy said.

Eastern Hampshire District Court Judge Richard Carey asserted that Rutberg, as with Barbalunga, emphasizes the quick handling of cases and creates an environment in which the court staff "feels like a family."

He also deemed Rutberg as "the judge's judge, a judge others call when they have a question," based on his lengthy career.

A Philadelphia native, Rutberg moved from New York to South Berkshire in 1972 and operated a private law practice until he was appointed a judge. He also has chaired the District Court Committee on Civil Proceedings since 2000 and has served on other committees.

Connolly said she got to know Rutberg when they were chairmen of the District Court's Committee on Time Standards in 2003. She noticed his "incredible devotion to the rule of law" and his "extraordinary common sense" in deciding how district courts should proceed, traits that she said she considered when she was deciding on a replacement for Barbalunga.

Friday, January 26, 2007 9:45:00 AM  
Blogger Jonathan said...

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.

--

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.

--

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.

Tuesday, June 12, 2007 11:03:00 AM  
Blogger Jonathan said...

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."

Tuesday, July 31, 2007 4:42:00 PM  
Blogger Jonathan said...

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.

Wednesday, September 05, 2007 5:09:00 PM  

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