Film maker Daniel Alexander will be interviewed about his movie, Freeing Bernie Baran, this evening on Austin Texas radio station KOOP at 6 p.m. Central Daylight Time, 7 p.m. Eastern.

The movie will premier at the Austin Gay/Lesbian film festival on September 11.

I will be listening live. Please join me by clicking here.

-Bob Chatelle

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I was saddened to learn of the passing of Reverend John M. Swomley, father of Bernard Baran’s lawyer, John G. Swomley. I never met the elder Swomley, but I know that his values were deeply instilled into his son, who achieved the exoneration of Baran and has fought for justice and civil liberties on so many fronts.

Here is an obituary of a most remarkable man: http://forusa.org/blogs/ethan-vesely-flad/john-swomley-leader-dies-95

-Bob Chatelle

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This morning I received the sad news that Robert Aitken, an eminent Buddhist teacher and scholar, had died at the age of 93.

http://robertaitken.blogspot.com/2010/08/goodbye-dad-grandfather-papa-friend.html

Roshi was a true friend of justice, as is his son, Tom. They contacted me many years ago after learning about the case of Bernard Baran from Katha Pollitt’s first column in The Nation. Both contributed financially to Baran’s cause and spread the word about this great injustice. Roshi also regularly corresponded with Baran while he was still behind bars.

Roshi also sent Baran many of his wonderful books. Some were passed on to me and I treasure them.

-Bob Chatelle

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This was posted on the blog of Massachusetts Lawyers Weekly: http://blogs.masslawyersweekly.com/news/2010/08/03/bernard-baran-can-sue-original-attorneys/

The decision will probably be appealed. But I think we have a reasonable hope or prevailing.

-Bob Chatelle

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The next time we were in a courtroom together was on February 12^th, 2008. Berkshire County DA David Capeless had appealed Fecteau’s ruling and was determined to send Baran back to prison. The Massachusetts Appeals Court was holding a hearing on Capeless’s motion. While Baran was not in handcuffs and shackles, he was wearing a GPS bracelet and living under the sort of severe restrictions that now burden those sex offenders considered the most dangerous. He was far from a free man.

On May 15^th 2009, Baran received a favorable ruling from the Appeals Court that was even stronger than the decision handed down by Fecteau. All charges were finally dropped on June 9th.

This afternoon I was again in a courtroom with Baran. But this time, someone else was the defendant.

Baran last January filed suit against his previous lawyers. The defendants are the estate of Leonard Conway (his trial lawyer), his appellate attorney (David Burbank), and Burbank’s firm at the time, Cain, Hibbard, Myers, and Cook.

Cain Hibbard has filed a motion to dismiss the lawsuit, arguing that the Statute of Limitations prevents Baran from acting. Today’s hearing was on that motion. Cain Hibbard was represented by a Boston law firm hired by their insurance company. Baran was represented by John Swomley and Eric Tennen. The Judge was Leila Kern.

Judge Kern began the proceeding by stating that “Plaintiff has been horrifically served by the legal profession and by the prosecutors.” We were encouraged (but a bit surprised) by this remark. Baran even turned to me for confirmation that he was the plaintiff in the case. Kern also went on to make clear that her ruling would have to be in compliance with the Statute of Limitations.

Judge Kern, unfortunately, is very soft spoken and I couldn’t hear much of what she said. But I think I understood the gist of her remarks throughout the proceedings.

The insurance-company lawyer (who in my opinion did his job professionally but without enthusiasm) first argued that Baran would have had to file his claim against the trial lawyers within three years of his conviction and against his appellate lawyers within three years of the denial of his direct appeal.

The judge commented that requiring this of someone convicted by jury and serving a sentence would place a considerable burden on the plaintiff.

The insurance-company lawyer argued that there is no legal requirement for exoneration before someone can file a legal malpractice suit. He cited the example of a lawyer who neglects to bring a plea bargain to a client and the client ends up serving a more sever sentence as a result. In such a case the client has the right to sue without exoneration.

The insurance-company lawyer went on to argue that even if exoneration were held necessary, the Statute of Limitations would have started tolling on June 16, 2006, the date of Fecteau’s ruling.

Judge Kern said that the Commonwealth had appealed Fecteau’s ruling within the allotted ten-day window. She asked whether Baran would have needed to file his suit within that ten-day period. The lawyer countered that Baran could have filed at any time before the Appeals Court ruled.

He also argued the importance of the Statute of Limitations in protecting defendants from countering a lawsuit caused by actions that occurred decades ago.

Eric Tennen argued that the essential question in the case was: When did the damages accrue? One cannot bring a lawsuit if there have been no damages. And there were no legally provable damages until Baran was exonerated. Tennen argued that exoneration was quite different from post-conviction relief. Fecteau’s ruling did not exonerate Baran. Baran was still under indictment and these indictments were not dropped by Capeless until June 9, 2009. Only at that time did Baran have legally provable damages.

Tennen also pointed out that in cases dealing with events that happened decades ago the discovery burden weighs heavier on the plaintiff because it is the plaintiff that has the burden of proof.

I am not sure how long Judge Kern will take to rule. My impression was that she is sincerely outraged about what was done to Bernard Baran. But it is also my impression that her ruling will be carefully crafted to withstand the scrutiny of appellate review.

However she rules, I’m sure the matter will almost certainly be referred to the Appeals Court. And if the Appeals Court permits Baran’s suit to proceed, I predict that the insurance-company lawyers will offer a settlement.

Baran has suffered more than most people can imagine. There’s not enough money in the world to compensate him and his family for the pain the Commonwealth of Massachusetts cruelly inflicted upon them. We can hope at least that the terrible financial burdens that now weigh upon him will be somewhat alleviated.

Baran has also filed for compensation by the Commonwealth under a Massachusetts law that provides payment to those wrongfully convicted. These efforts are being vigorously opposed by Massachusetts Attorney General Martha Coakley.

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Here is a trailer for Freeing Bernie Baran, a new documentary about the Bernard Baran case by Daniel Alexander.

-Bob Chatelle

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Our friend David Foley yesterday sent me this essay, which he had written over seven years ago,  about Bernard Baran. On my request, David gave me permission to share it with you.

-Bob Chatelle

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I began learning about corrupt Berkshire County back in 1998, when Jim and I became involved in the Bernard Baran case. We soon learned that Baran’s was far from the only case of an almost certainly innocent person behind bars for non-existent sexual abuse of a child out there.

As we got to know more and more friends and relatives of the wrongfully convicted, we also began hearing rumors about the sexual misconduct of members of the Berkshire establishment, including several directly involved in the wrongful-conviction cases. I did not pass these rumors on for two reasons. One, I didn’t consider them directly relevant to the cases. And two, I felt nothing should be done while the alleged victims were refusing to go public with their charges.

I did, however, suspect that at least some of these charges were true. When political power is concentrated in a few hands, members of the ruling elite eventually come to consider themselves outside of the reaches of the law. Indeed, they may in fact be the law. In such a corrupt community, challenging the authorities can have very nasty consequences.

One name frequently came up in these conversations:  Berkshire County Sheriff Carmen Massimiano. I will not repeat these allegations because they are, thus far, unsubstantiated. My attitude then, as now, was that if these things happened then the accusers should muster the courage to go public.

Now one accuser has gone public. Today, this story was published in the Berkshire Eagle.

Massimiano has the right, so frequently denied to others in Berkshire County, to the presumption of innocence. If the charges against him are true, others may come forward. If he is eventually found guilty in a court of law, a powerful blow will have been dealt to the ruling cadre of Berkshire County.

And if he is innocent, someone in power out there will experience first hand the horror of living with a false accusation.

It will be interesting to see what will happen next.

-Bob

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My Baran google alert came up with this today: http://elmtreeforge.blogspot.com/2009/11/massachusetts-superior-court-judge.html

I have no major news about Bee’s health. His lungs are doing much better and his asthma bothers him less. But he still has discomfort from his pancreatitis and colitis.

-Bob Chatelle

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I haven’t posted any updates on Bernard Baran for a while because there have been no dramatic changes, for better or worse. But I relize that many of you are worried and want to know what has been going on.

On a positive note, he has stayed out of the hospital and his lungs have much improved. He often sounds like his old self on the phone.

On the other hand, his white cell count is up and doctors are worried that this could be the prelude to another pancreatitis attack.

I had been hoping that his recovery would be quick and dramatic. I now realize that this is going to be a very slow process.

Some years ago, one of my cousins was felled with pancreatitis. She had an absolutely terrible time for a full year. But she has been doing quite well for the past decade.

I guess we just have to be patient and keep hoping.

I wonder how Judge Daniel Ford is feeling these days.

-Bob

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