TABLE OF CONTENTS


vi

I. Introduction 1

II. Statement of the Case 8

III. Overview 10

A. Mr. Baran’s conviction was based on unreliable evidence 10

1. The judge used an incorrect legal standard to determine that four of the children were competent to testify 10

2. The children’s testimony was tainted by suggestive interview techniques.
15

3. Numerous out-of-court statements made by the children were improperly admitted. 17

B. Ineffective assistance of counsel 20

1. Failure to investigate, to seek discovery, or to properly prepare for trial.
23

2. Failure to assert Mr. Baran’s constitutional right to a public trial. 26

C. Prosecutorial misconduct 32

D. Newly discovered evidence 33

IV. Boy A 35

A. Facts the jury heard. 35

1. ECDC teachers and staff. 35

2. Boy A. 36

3. Mother A. 36

4. Dr. Jean Sheeley. 38

5. Detective Joseph Collias. 38

6. Dr. Jeffrey Ross. 39

7. Bernard Baran. 40

B. Mr. Baran was denied his right to confront Boy A. 42

1. Boy A was not a competent witness. 42

2. Mother A’s testimony that Boy A said “Bernie did it” was inadmissible hearsay. 48

C. Ineffective assistance of counsel. 53

1. Defense counsel failed to try to exclude the gonorrhea evidence. 53

2. Defense counsel failed to investigate and develop the defense theory that the A allegations were the product of homophobia. 59

3. Defense counsel prejudiced Mr. Baran by unnecessarily labeling him a homosexual. 64

4. Defense counsel failed to move for a mistrial after a required finding of not guilty was granted on the A counts. 67

5. Defense counsel failed to develop evidence that Mother A’s bathtub story was a recent invention.
71

6. Defense counsel never investigated the bathtub story and, as a result, never learned that David told a different, exculpatory version of the bathtub story.
76

7. Defense counsel failed to develop evidence that the As did not seem to be particularly eager to have Boy A examined by a doctor. 77

8. Defense counsel failed to develop evidence that Dr. Sheeley’s physical examination of Boy A on October 5 was completely normal.
77

9. Defense counsel failed to establish that the 51A report that alleged that Boy A was molested by Bernie Baran also alleged that Mother A and David had neglected Boy A.
78

10. Defense counsel failed to develop evidence that would support the suggestibility defense.
78

11. Defense counsel failed to investigate or develop evidence of a history of violence in the A home.
80

12. Defense counsel failed to investigate or develop evidence that Mother A and David were severe drug addicts.
81

13. Defense counsel failed to investigate or develop evidence of Mother A’s motives to want Mr. Baran to be successfully prosecuted
85

D. Prosecutorial misconduct - Suppression of evidence that Boy A claimed that his mother’s boyfriend molested him. 86

E. Newly Discovered Evidence - David and Boy A recanted. 93

V. Girl B 96

A. Facts the jury heard. 96

1. ECDC teachers and staff. 96

2. Girl B. 96

3. Mother B. 97

4. Detective Bruce Eaton. 99

5. Jane Satullo. 100

6. Trooper Robert G. Scott. 102

7. Dr. Suzanne King. 103

8. Dr. Jean Sheeley. 105

9. Bernard Baran. 108

B. Mr. Baran did not get a fair trial because his conviction was based on unreliable testimony. 108

1. The judge used an incorrect legal standard to determine that Girl B was competent to testify. 109

2. Numerous out-of-court statements made by Girl B were improperly admitted. 113

a. Mother B. 114

b. Detective Bruce Eaton. 120

c. The photo array. 120

d. Pediatrician Dr. Jean Sheeley. 122

e. Rape Crisis Counselor Jane Satullo. 124

f. Child psychiatrist Dr. Suzanne King. 127

3. The fresh complaint limiting instructions were flawed. 131

C. Ineffective assistance of counsel. 136

1. Trial counsel failed to investigate, to seek discovery, or to properly prepare for trial. 136

a. Jane Satullo. 136

b. Dr. Jean Sheeley. 138

c. Dr. Suzanne King. 139

2. Defense counsel failed to investigate or to develop the hysteria defense.
140

3. Defense counsel failed to investigate and develop the suggestibility defense.
141

a. Where did Bernie touch Girl B? 150

b. How did Bernie touch Girl B? 151

c. Did Girl B bleed as a result of being sexually abused by Bernie?
155

d. The Bird’s Nest Game. 157

e. Was Girl B afraid of Bernie? 161

f. Girl B’s nightmare. 162

g. The videotaped interview. 163

D. Newly discovered evidence - Girl B had a normal genital exam. 168

VI. Boy C and Boy D 170

A. Facts the jury heard. 170

1. ECDC teachers and staff. 170

2. Boy C. 171

3. Mother C. 173

4. Boy D. 173

5. Father D. 176

6. Patricia Palumbo. 178

7. Jane Satullo. 180

8. Bernard Baran. 180

B. Mr. Baran did not get a fair trial because his conviction was based on unreliable testimony - The judge used an incorrect legal standard to determine that Boy C was competent to testify. 181

D. Ineffective assistance of counsel regarding the D allegations. 185

1. Defense counsel failed to request discovery and failed to object to the substitution of an undisclosed witness. 185

2. Defense counsel failed to develop the hysteria defense theory. 186

3. Defense counsel failed to develop the suggestibility defense theory. 192

4. Defense counsel failed to request proper fresh complaint limiting instructions. 194

5. Defense counsel failed to object to fresh complaint testimony that exceeded the scope of Boy D’s testimony. 195

6. Defense counsel failed to object to hearsay improperly admitted as fresh complaint.
196

E. Ineffective assistance of counsel regarding the C allegations.
198

1. Defense counsel failed to assert Mr. Baran’s right to a probable cause hearing or to seek meaningful discovery. 198

2. Defense counsel failed to investigate or to develop the hysteria defense.
201

3. Defense counsel failed to develop the suggestibility defense. 203

4. Defense counsel failed to notice a material variance between the complaint and the proof. 210

5. Defense counsel failed to request proper fresh complaint limiting instructions. 212

6. Defense counsel failed to object to fresh complaint testimony that exceeded the scope of Boy C’s testimony. 212

7. Defense counsel failed to object to inadmissible hearsay. 213

F. Newly discovered evidence - Boy C recanted and his mother had significant psychological issues. 214

1. Boy C. 214

2. Mother C. 214

VII. Girl E 217

A. Facts the jury heard. 217

1. ECDC teachers and staff. 217

2. Girl E. 217

3. Mother E. 218

4. Detective Peter McGuire. 218

5. Trooper Robert Scott. 219

6. Dr. Jean Sheeley. 220

7. Bernard Baran. 220

B. Mr. Baran did not get a fair trial because his conviction was based on unreliable testimony. 221

C. Ineffective assistance of trial counsel. 225

1. Counsel failed to investigate and develop exculpatory evidence that Girl E was sexually abused by her mother’s boyfriend. 225

2. Defense counsel failed to develop the hysteria defense theory. 226

3. Defense counsel failed to develop the suggestibility defense. 229

D. Prosecutorial misconduct - Failure to disclose DSS investigation of Girl E’s claim that her mother’s boyfriend molested her. 234

E. Newly discovered evidence - Girl E recanted. 235

VIII. Girl F 237

A. Facts the jury heard. 237

1. ECDC teachers and staff. 237

2. Girl F. 237

3. Mother F. 238

4. Michael Harrigan. 238

5. Detective Peter McGuire. 239

6. Bernard Baran. 240

B. Mr. Baran did not get a fair trial because his conviction was based on unreliable testimony. 241

1. The judge used an incorrect legal standard to determine that Girl F was competent to testify. 241

2. Out-of-court statements made by Girl F were improperly admitted. 255

C. Ineffective assistance of trial counsel. 257

1. Defense counsel failed to seek meaningful discovery. 257

2. Defense counsel failed investigate or to develop the hysteria defense. 258

3. Defense counsel failed to develop the suggestibility defense. 259

IX. Prosecutorial misconduct. 265

A. The Commonwealth failed to disclose crucial evidence. 265

B. The Commonwealth elicited and argued improper, irrelevant and prejudicial evidence.
270

1. Sympathy for the children and their parents. 270

2. Manufactured, mischaracterized and misused testimony. 274

3. Vouched 281

4. Attacked Mr. Baran’s right to present a defense. 283

5. Deliberately inflamed the jury. 283

Table of Authorities

Federal Cases

Brady v. Maryland, 373 U.S. 83 (1963) 50

Berger v. United States, 295 U.S. 78 (1935) 63, 267, 289

Douglas v. California, 372 U.S. 353 (1963) 199

Gannett Co. v. DePasquale, 443 U.S. 368, 38 (1979) 29

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), rev’d 383 Mass. 838 (1981) 28,
29, 31

Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998) 65, 66

Idaho v. Wright, 497 U.S. 805 (1990) 15

Imbler v. Pachtman, 424 U.S. 409 (1976) 93

Levine v. U.S., 362 U.S. 610 (1960) 27

Manson v. Brathwaite, 432 U.S. 98 (1977) 10

Martineau v. Perrin, 601 F.2d 1196 (1st Cir., 1979) 30

Ohio v. Roberts, 448 U.S. 56 (1980) 50

Snyder v. Massachusetts, 291 U.S. 97 (1934) 50

Strickland v. Washington, 466 U.S. 688 (1984) 20, 203

United States v. Ham, 998 F.2d 1247 (4th Cir. 1993) 57, 65

Waller v. Georgia, 467 U.S. 39 (1984) 29, 31

State Cases

Boston Herald v. Superior Court, 421 Mass. 502 (1995) 33, 90, 92, 235, 266, 269

Commonwealth v. Adamides, 37 Mass.App.Ct. 339 (1994) 32

Commonwealth v. Allen, 40 Mass. App. Ct. 458 (1996) 20

Commonwealth v. Almeida, 433 Mass. 717 (2001) 29

Commonwealth v. Amirault, 404 Mass. 221 (1989) 28, 29, 31

Commonwealth v. Amirault, 424 Mass. 618 (1997) 65, 66

Commonwealth v. Arce, 426 Mass. 601 (1998) 15

Commonwealth v. Azar, 435 Mass. 675 (2002) 93

Commonwealth v. Bailey, 370 Mass. 388 (1976) 27

Commonwealth v. Baker, 440 Mass. 519 (2003) 10

Commonwealth v. Barrett 418 Mass. 788 (1994) 30

Commonwealth v. Bohannon, 385 Mass. 733 (1982) 50

Commonwealth v. Brusgulis, 398 Mass. 325 (1986) 50

Commonwealth v. Burke, 339 Mass. 521 (1959) 20, 203

Commonwealth v. Bynoe, 49 Mass.App.Ct. 687 (2000) 57, 65

Commonwealth v. Cabot, 241 Mass. 131. 29, 31

Commonwealth v. Caine, 366 Mass. 366 (1974) 84

Commonwealth v. Cardenuto, 406 Mass. 450 (1990) 20, 21

Commonwealth v. Carrion, 407 Mass. 263 (1990) 84

Commonwealth v. Cinelli, 389 Mass. 197, cert. denied, 464 U.S. 860 (1983) 270

Commonwealth v. Clary, 388 Mass. 583 286

Commonwealth v. Colin C., 419 Mass 54 (1994) 50, 51, 53, 126

Commonwealth v. DeChristoforo, 360 Mass. 531 (1971) 288

Commonwealth v. Deveau, 34 Mass.App.Ct. 9 (1993) 273

Commonwealth v. Dickinson, 394 Mass. 702 (1985) 126

Commonwealth v. Dion, 30 Mass.App.Ct. 406 (1991) 132

Commonwealth v. Ellison, 376 Mass. 1 (1978) 33, 92, 114, 235, 266, 267

Commonwealth v. Farley, 432 Mass. 153 (2000) 26, 63, 191, 192, 194, 210, 229, 234, 259

Commonwealth v. Fayerweather, 406 Mass. 78 (1989) 55

Commonwealth v. Federico, 425 Mass. 844 (1997) 129

Commonwealth v. Flebotte, 417 Mass. 348 (1994) 117

Commonwealth v. Freeman, 352 Mass. 556 (1967) 287

Commonwealth v. Gallego, 27 Mass.App.Ct. 714 (1989) 288

Commonwealth v. Gillette, 33 Mass. App. 427 (1992) 58, 66, 198, 213

Commonwealth v. Goss, 41 Mass.App.Ct. 929 (1996) 135, 194, 222

Commonwealth v. Grace, 397 Mass. 303 (1986) 34, 169

Commonwealth v. Haggerty, 400 Mass. 437 (1987) 25, 26, 63, 203

Commonwealth v. Healy, 38 Mass. 672 (2003) 226, 268

Commonwealth v. Hernandez, 421 Mass. 272 (1995) 270

Commonwealth v. Hudson, 417 Mass. 536 (1994) 129

Commonwealth v. Ike I., 53 Mass. App. Ct. 907 (2002) 46

Commonwealth v. Jacobsen, 419 Mass. 269 (1995) 270

Commonwealth v. Jiminez, 10 Mass. App. Ct. 441 (1980) 46

Commonwealth v. Kirkpatrick, 423 Mass. 436 (1996) 56

Commonwealth v. Kirouac, 405 Mass. 557 (1989) 51

Commonwealth v. Kozec, 399 Mass. 514 (1987) 281

Commonwealth v. Lamontagne, 42 Mass.App.Ct. 213 (1997) 222

Commonwealth v. Lataille, 366 Mass. 525 (1974) 199, 200

Commonwealth v. Lavalley, 410 Mass. 641 (1991) 132, 222, 256

Commonwealth v. LeFave, 407 Mass. 927 (1990) 12, 47

Commonwealth v. LeFave, 430 Mass 169 (1999) 22, 33

Commonwealth v. Lennon, 399 Mass. 443 (1987) 119

Commonwealth v. Licata,,412 Mass. 654 (1992) 17-19, 117, 131, 132, 195, 223

Commonwealth v. Lorette, 37 Mass.App.Ct. 736 (1994) 273, 274

Commonwealth v. Marshall, 356 Mass 432 (1969) 27, 31

Commonwealth v. Martin, 417 Mass. 187 (1994) 29, 31

Commonwealth v. McCaffrey, Mass.App.Ct. , 584 (1994) 198

Commonwealth v. McLaughlin, 364 Mass. 211 (1973) 51, 53

Commonwealth v. McLeod, 30 Mass.App.Ct. 536 (1991) 272, 287, 288

Commonwealth v. Miranda, 22 Mass.App.Ct. 10 (1986) 287

Commonwealth v. Montanino, 409 Mass. 500 (1991) 18, 130, 131

Commonwealth v. Monzon, 51 Mass. App. Ct. 245 (2001) 11-13, 45, 47, 48, 113, 182-184,
255

Commonwealth v. Moore, 408 Mass. 117 (1990) 33

Commonwealth v. Mullins, 2 Allen 295 (1861) 12, 47

Commonwealth v. Murphy, 57 Mass. App. Ct. 586 (2003) 13, 12

Commonwealth v. Myers, 363 Mass. 843 (1973) 199, 200

Commonwealth v. Nylander, 26 Mass. App. Ct. 784 (1989) 54

Commonwealth v. Oliveira, 431 Mass. 609 (2000) 139

Commonwealth v. Peters, 429 Mass 22 (1999) 19, 114, 124, 195

Commonwealth v. Pisa, 372 Mass. 590, cert. denied 434 U.S. 869 (1977) 267

Commonwealth v. Quincy Q., 434 Mass 859 (2001) 17, 18, 115, 120, 122, 125, 126, 213, 224,
225

Commonwealth v. Rainwater, 425 Mass. 540 (1997) 20

Commonwealth v. Randolph, 438 Mass. 290 (2002) 19-22

Commonwealth v. Rembiszewski, 391 Mass 123 (1984) 20

Commonwealth v. Richardson, 423 Mass. 180 (1996) 126, 129

Commonwealth v. Rondeau, 378 Mass. 408 (1979) 21

Commonwealth v. Rosa, 413 Mass. 147 (1992) 279

Commonwealth v. Saferian, 366 Mass. 89 (1974) 20, 21, 63, 203

Commonwealth v. Santiago, 425 Mass 491 (1997) 270

Commonwealth v. Santiago, 437 Mass. 620 (2002) 51, 52

Commonwealth v. Satterfield, 373 Mass. 109 (1977) 21

Commonwealth v. Scanlon, 412 Mass. 664 (1992) 18, 119

Commonwealth v. Scullin, 44 Mass. App.Ct. 9 (1997) 195

Commonwealth v. Shelley, 374 Mass. 466 (1978) 272, 287, 289