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Appeals court refuses to reinstate molestation conviction

E-mail|Link May 15, 2009 12:58 PM

By Jonathan Saltzman, Globe Staff

A state appeals court panel today refused to reinstate the conviction of Bernard Baran Jr., agreeing with a lower court that the former Pittsfield man convicted in 1985 of molesting five children at a day-care center in that city got an unfair trial because of an incompetent defense lawyer.

The three-member panel agreed that Baran, who was freed from prison in 2006 after serving 21 years for crimes he insisted he never committed, deserved a new trial based on ineffective work by his trial lawyer, Leonard B. Conway, of Westfield.

“In particular, defense counsel's apparent failure to engage in any meaningful preparation for what was indisputably a complex, high-stakes trial represented a more or less complete abandonment of his professional obligations to the defendant,'' said the ruling written by Justice Barbara A. Lenk. “His inability to undermine the credibility of the Commonwealth's witnesses speaks both to his lack of preparation and his quite limited trial skills.''

Baran, who has been living in Woburn and working as a landscaper since his release, broke down outside a Boston job site when he received a phone call from his appellate lawyer, John G. Swomley of Boston, informing him of the decision. Baran said he is relieved but still worries that Berkshire District Attorney David F. Capeless may appeal to the Supreme Judicial Court or actually retry him. Baran wants prosecutors to drop the charges.

“I think it's just a waste of time and money,'' said Baran, 43, who has been wearing an electronic-monitoring bracelet on his left ankle since he was freed. “This will be four judges saying the same thing.''

Conway, whose defense of Baran had been skewered by Superior Court Judge Francis R. Fecteau in the June 2006 ruling ordering a new trial, today called himself a “fall guy.” He insisted, as he had in a 2005 interview with the Globe, that he vigorously defended Baran but was unable to persuade a jury that had been allowed to hear prejudicial evidence.

“With all the cases that I've tried, this has got to be the worst in the world,'' he said in a telephone interview of the impact that the case has had on his career. “There was just nothing in the world that was ever going to dissuade that jury.''

Capeless had appealed Fecteau's ruling ordering a new trial for Baran, one of the first people convicted in a wave of controversial prosecutions of day-care workers for sexual abuse in the 1980s. He was not immediately available for comment.