Bernard Baran: The First Day Care Conviction

THE BERNARD BARAN STORY:

I have spent 15 years of my life locked away for something I never did and after a while you start to lose all hope. Bernard F. Baran, Jr.

Written by Bob Chatelle

Edited by Stormy Thoming-Gale

Being a gay teenager -- anytime, anywhere -- has never been easy. However, few have had to pay so terrible a price as has Bernard Baran of Pittsfield, Massachusetts.

Pittsfield is a town of about 50,000 in western Massachusetts. Baran was born there on May 26, 1965, the youngest of three children. His father left when Bernie was three, but Baran's mother, Bertha, held the family together. Bernie was her baby, and she kept him out of school an extra year.

When very young, Bernie realized  he was gay. This was hard for Bertha to understand at first, but she accepted it because she loved her son. School was not easy for Bernie. Although he is not effeminate, his gentleness advertises vulnerability. In 1981, after completing 9th grade and having just turned 16, he quit.

Baran enrolled in the Comprehensive Employment and Training Act (CETA), and early in 1983 he was assigned to a Pittsfield daycare, the Early Childhood Development Center (ECDC). Bernie liked kids and he'd had a lot of experience babysitting. The following August, ECDC directly hired him as a Teacher's Aide. His performance was generally excellent, although he went through a period of tardiness in early 1984. He was good with the kids and before the trouble started on October 4, 1984, no parent had ever complained.

Baran was also happy in his personal life. He had come to love another young man named Ricky, a few years his senior. Ricky, a musician, taught Bernie how to do sound. Although Bernie lived at home with his mother, he often spent nights at Ricky's.

 

Destruction entered Baran's life through the very troubled three-year-old Peter Hanes, whose home life was deeply troubled. (All children's names have been changed.) Peter's father, James, left his wife, Julie, when Peter was two or three weeks old and James' cousin, David, soon moved in. Julie and David had serious drug problems. Julie often showed up at emergency rooms suffering from overdoses. She mainlined cocaine, but also used opiates and barbiturates. David once stole the paregoric (a camphorated tincture of opium used to treat diarrhea) Julie's doctor prescribed for Peter's baby brother. Peter sometimes came to daycare with bruises. David once held Julie from a second-story window by her ankle. In March 1983, David allegedly stabbed himself in the heart, and required open-heart surgery. Julie's next live-in boyfriend also allegedly stabbed himself in the chest.

Not surprisingly, Peter was a big problem at ECDC. He swore, had mood swings, physically abused other children and teachers, threw things, and defecated in the play patch. He wet himself almost every naptime. Julie was asked to send in extra clothes with him everyday, but she seldom did.

Most 80's daycare cases began when a parent from a highly dysfunctional home accused a male daycare worker of sexually abusing a little boy. The most famous such case was McMartin, which began in August 1983 when an alcoholic paranoid schizophrenic woman accused twenty-five-year-old Ray Buckey of sodomizing her two-year-old son. McMartin spawned hundreds of copycat cases. In Malden, Massachusetts, on September 5, 1984, police arrested Gerald Amirault, a worker at the family-owned Fells Acres Day School. Gerald's sister, Cheryl, and his mother, Violet, were later arrested as well.

Around the time Gerald Amirault's arrest made the news, David Hanes called ECDC to complain that Bernard Baran was a homosexual and shouldn't be allowed to work there. A few weeks later, on Monday, October 1, 1984 Peter Hanes was removed from ECDC. On Friday, October 5, David Hanes called the Pittsfield Police and said that his son "had come home from school yesterday with or after examination had blood on or coming out of the end of his penis."

This was allegedly discovered while Peter was being bathed the previous evening. Julie Hanes later admitted  she actually "didn't see any blood because he was in the water, but he said it hurt." Peter was asked if anyone had touched him there, and Peter supposedly said, "Bernie."

After receiving Hanes' call, the police went to ECDC and talked with the staff. The police were told that it was ECDC policy to never leave any adult alone with children. In each room, there was a Head Teacher, an Assistant Teacher, and a Teacher's Aide. In addition to the paid staff, there were CETA workers, and volunteers. Bathrooms adjoined classrooms and bathroom doors were kept open in case toddlers needed assistance. There were virtually no opportunities for a child molester.

Baran didn't know that he was under investigation, but word spread among ECDC staff. That evening, ECDC Coordinator Carol Bixby called her friend, Judith Smith, an ECDC board member. The Smiths had a three-year-old daughter named Gina who'd been an ECDC student. She'd been in Baran's room from April until she left the school in the middle of July. Because of their schedules, Gina and Baran were in the same room only about five hours a week during the busiest part of the day.

After Bixby's phone call, Judith began interrogating Gina. Mrs. Smith specifically asked about Bernie and whether Bernie ever "touched her in a funny way." Gina said she and Bernie played the "Bird's Nest Game." Smith asked if Bernie ever touched her fanny, and Gina said that Bernie touched her "privies" sometimes. Smith called Janie Trumpy, who told her that Smith should call the police because Gina wouldn't make up something like that. Later research by Ceci, Bruck, and others* shows that young children often produce such "accusations" when subjected to suggestive questioning.

Late that night, two detectives and a social worker went to the Smith home. Gina was not talkative but after being prodded again said that Bernie touched her privies. Gina also said that one day Baran found a bird's nest with a dead baby bird still partly in its shell. Baran allegedly said that if the "make believe" or "pretend" police found out, they would come and take the bird away, and that would upset the bird's mother. Baran never found such a nest. With much help from the "investigating" adults, Gina went on to create the most bizarre of the abuse tales.

Baran was arrested, and the news hit the papers. Peter Hanes and Gina Smith were interrogated, first by police, then by Jane Satullo of the Rape Crisis Center, who did videotaped interviews using anatomically correct dolls.

Anatomically correct dolls were commonly used at the time. Responsible therapists and investigators no longer use them because research has since shown that they produce mainly false accusations.

Gina Smith and Peter Hanes shared the same pediatrician, Dr. Jean Sheeley, who at the time was relatively inexperienced. [Both Gina and Peter were taken to see Dr. Sheeley for a recent exam.] Gina's last complete checkup was in July, right after leaving ECDC, and no problems had been found. This time Sheeley closely examined Gina's rectum and vagina, and found a 1-2 millimeter (about 1/20 inch) tear in her hymen. Sheeley believed that tear consistent with penetration by an adult penis or several adult fingers. Her evaluation was in accordance with medical knowledge then current, because no one had yet studied the vaginas or rectums of non-abused children. Later studies by Dr. John McCann and others have revealed that such hymeneal flaws are common.

During the examination, Gina also said  she'd had blood on her privies, but that Baran cleaned it up and that Eileen, the Assistant Teacher, had witnessed this. In her police statement, Mrs. Smith admitted that she had suggested Eileen's name, and that by doing so she was "putting a name in her head." From the beginning, Mrs. Smith had also put Baran's name into Gina's head. Later, Gina would say that Stephanie, the Head Teacher,  had been the witness.

A meeting was held for the panicked parents, and police and social workers provided a symptom list for sexual abuse -- bedwetting, nightmares, fear of the dark, eating problems, genital curiosity, etc. Any child could have some of these symptoms. The children were also treated to "good touch/bad touch" puppet shows (another highly suggestive technique) performed by Jane Satullo and others. Four more accusers were produced.

One was Virginia Stone, who had never been in Baran's room, but whose mother was a good friend of Julie Hanes. Virginia at first denied abuse, but later "disclosed." According to the insurance company report, Stone later told a therapist that nothing had really happened but that her mother told her to say that it had so [that] they could get a lot of toys and money. Baran had also allegedly jointly abused two little boys in a shed at school and in the woods during the winter while on a field trip. The shed was kept locked and Baran had no key. There was no such field trip while the two boys were in Baran's room, which was during the summer anyway. The final accuser was barely three. At some point she told a Department of Social Services inquisitor, "Bernie touched my tuku." The children were tested for gonorrhea.

Peter Hanes' throat culture was positive. At the time, the test used was considered reliable. Yet in 1988, a federal Center for Disease Control study showed that in instances where children tested positive, in over a third of the cases the actual organism turned out to be something else. Given his chaotic home, Hanes might well have had gonorrhea. Also, subsequent to Baran's conviction, according to the insurance report, Peter made a spontaneous, detailed, and credible disclosure of abuse by someone other than Baran -- the friend of David and Julie's who became Julie's live-in boyfriend after Julie threw David out, a week or so after Baran's arrest.

Baran's gonorrhea test was negative. Nevertheless, at trial, prosecutor Daniel Ford had a doctor testify that gonorrhea was most common among prostitutes and male homosexuals, reinforcing the belief that gay men always carry disease.

The children were rehearsed by their parents, the police, and social workers. The Smiths also hired a child psychiatrist, Suzanne King, who saw their daughter once a week. Gina's story became more bizarre. When Gina had originally said that her vagina had bled, she said that Bernie had cleaned her up with toilet paper. Now Gina claimed that Baran had scraped the blood from her vagina with scissors. Baran then supposedly stabbed Gina in the foot with the scissors, making her foot bleed as well. DA Ford claimed that Baran stabbed Gina's foot to cover up Gina's vaginal bleeding. This all allegedly happened in a bathroom with an open door adjoining a classroom filled with children and other teachers.

None of the children was competent to testify.

Additionally, the children were seated so  they didn't have to see Baran. Not only was Baran thus denied his confrontation rights, he couldn't even follow what was going on. In spite of all the rehearsal, the children were poor witnesses. When they bothered to respond, they shook or nodded their heads, said uh-huh or uh-uh, gave monosyllabic or one word answers. Ford was allowed to ask extremely leading questions. Whenever a child gave the "wrong" answer, Ford just repeated the question until the "right" answer was produced. If a child persisted in not cooperating, Ford would ask if the child were scared, implying that the child must be afraid of the monster, Baran, whom they couldn't even see. Most of the kids were cooperative with the dolls, however, eagerly poking the inviting orifices.

When Peter Hanes was brought into the courtroom, he broke away and ran over to where Baran was sitting. "Hi Bornie [sic]!" said Peter to his alleged tormentor. When they dragged Peter away, he said, "I don't like these people." Peter responded to Ford's questions with silence or obscenities until he had to be removed.

Ford's other "star" witness, Gina Smith, wasn't much better. When asked if she bled, Gina responded "I forget it," perhaps meaning she forgot the right answer. Ford followed up with, "What did Bernie do when the blood came out?" and she gave the right answer -- "He scooped it out with scissors." But then she gave the wrong answer and said it happened it the classroom. Ford helpfully reminded her that it happened in the bathroom. Ford prodded her about the Bird's Nest Game, but Gina only would say, "the baby bird got killed." Ford suggested that Gina was too scared to talk. Other children sometimes consistently gave wrong answers even when Ford repeatedly questioned them. Under cross-examination, one boy said he had been telling "fake stories." The youngest victim said she liked Bernie and that Bernie was a good boy.

The parents were compelling witnesses, since most of them sincerely believed that Baran had done unspeakable things to their babies. The teachers supported Baran, pointed out that they had never witnessed suspicious behavior, and pointed out the complete lack of opportunity at ECDC. Satullo and King testified that children were not suggestible and just dismissed everything that was inconsistent or incredible in the stories. Satullo flatly stated, "There haven't been any cases of children falsely accusing somebody."

King said that a parent's anxiety was not transferable to a child. Satullo and King's beliefs were standard at the time. Research  by Ceci, Bruck, and others  has since shown that children are highly susceptible to suggestion.

Baran did well. He answered all questions truthfully and thoughtfully and denied ever doing anything improper with any child. Under cross-examination, Ford prodded Baran about his relationship with his boyfriend, repeatedly asked Baran if he liked children, and if he enjoyed working with them. When Baran said he'd started coming in early because he didn't want to be fired, Ford immediately shot back, "Because you liked working there at that day care center with those little children." Ford never established a motive on Baran's part. Baran is not a pedophile, but all Ford needed to do was demonstrate that Baran was a gay man who liked children.

In his closing statement, Ford said that nothing he "could say could possibly be as persuasive or as convincing as the testimony of those little children who testified before you over the course of this trial. I dare say that the great Clarence Darrow himself would pale in comparison to them." Ford stated that Baran had plenty of opportunities at ECDC, and said "he could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite." Ford compared Baran to "a chocoholic in a candy store."

Ford explained to the jury why Gina Smith -- who allegedly had been brutally penetrated, causing her vagina to bleed, and then stabbed in the foot -- hadn't screamed out at the time or ever disclosed to any adult what had happened to her. It was because of the Bird's Nest Game. Ford said, "If she told anybody about what Bernie did to her the baby bird's mother would be taken away by the pretend police and the baby bird would be hurt. That one frightened Gina so much she couldn't even tell us about it here in court. She could talk about being raped, she could talk about being sodomized but she wouldn't repeat the bird's nest story. That's how much that one scared her."

The jury spent 3 1/2 hours to find Baran guilty on all counts. It was the nation's first daycare case conviction.

One of the trial's most dramatic moments occurred when an ECDC mother, Mrs. Melinda Ward, pleaded for Baran before sentencing. She called Baran "a miracle worker" who "started my son on the path of a normal childhood." (Baran reports that Mrs. Ward recently died.)

Baran was sentenced to two concurrent life sentences, which he continues to serve. His direct appeal was denied. Parole is not a possibility, because  people who insist that they are innocent are not eligible for parole. Through the years, Baran has steadfastly proclaimed his innocence.

Bernard Baran is a small person, Weighing less than 100 pounds at the time of his conviction. In prison, he has suffered physical, emotional, and sexual abuse -- abuse that he finds almost impossible to talk about today. He has been shuffled around the Massachusetts prison system. Today he resides at the Bridgewater Treatment Center, where he has been committed, for his own safety, as a sexually dangerous person.

Bernard Baran is a forgotten man. No journalist has ever investigated his case. When I visited Baran for the first time, I asked him about visiting rules. "I don't really know much about them," he said. "No one ever comes to see me except my mother."

On March 3, 1999, in a letter, Baran said:

"At times, Bob, I feel so all alone. I also do believe people have tried to help me but life moves so fast out there that I seem always to get lost in the process. I'm not saying that you would do this to me. It's just how it has gone so far. So I fear the hope that others bring into my life because I'm always left alone in the pain."

For 15 long and lonely years, Bernard Baran has been lost in the process. Recently, Boston attorney and public defender John Swomley became interested in Baran's plight. Another public defender has agreed to screen Baran's case, and we hope that she or someone else will write a new trial motion. The process will move slowly, and we need help.

Finally, I can only agree with the late Melinda Ward, who told the Court, "I just can't believe that Bernie isn't entitled to a little compassion and fairness and dignity."

Sources for this article include Baran's trial transcript, the transcript of the 1995 civil suit, police reports and parents' statements, interviews with Bernard Baran, and articles in the Berkshire Eagle.

Two books that provided essential information are:

Satan's Silence, by Debbie Nathan and Mike Snedeker (New York: BasicBooks, 1995)

*Jeopardy in the Courtroom, by S.J. Ceci and M. Bruck (Washington: American Psychological Association,[[space]]1995).

Donations and inquiries can be sent to: The Bernard Baran Justice Committee c/o Swomley & Wood 83 Atlantic Ave. Boston MA 02110

You may write Bernie directly at:

Bernard Baran
30 Administration Road
Bridgewater MA 02324

Bob Chatelle may be reached by email at kyp@ultranet.com.

A web site is in process at: www.ultranet.com/~kyp/baran.html.

Justice Denied