Police finally admit to driving Galluccio home

Cambridge cops kept secret for a month the fact that they had driven home a state senator after responding to a report of an intoxicated man just hours before the lawmaker slammed his SUV into a minivan and fled, raising questions of a cover-up.

It was 25 days after an Oct. 4 hit-and-run wreck allegedly involving Sen. Anthony D. Galluccio when cops finally wrote up a report on the free ride.

And it was not until yesterday that the report surfaced revealing that the Cambridge Democrat, a two-time drunken driver, got a lift home by police at 4:40 a.m. that morning - about 13 hours before the hit-and-run accident that left a teenager injured.

“They gave him a free pass they would not give the average person,” said prominent Boston defense attorney John Swomley.

Swomley believes Cambridge police higher-ups ordered the report because they realized there may have been witnesses to the earlier incident. “The only reason the report was even written is at some point the Cambridge police decided to cover their own (behind) and not his,” Swomley said.

Last week, the Supreme Judicial Court ruled that a law passed by the Mass. Legislature in 2006 violated the ex-post facto clause. Initial reactions seemed to overstate the breadth of the opinion. Indeed, the opinion was more narrow than most people may think and simply put things back to the way they were before--where judges still have broad discretion to impose GPS on any person on probation.

The law was, and remains, simple: any person placed on probation after Dec. 20, 2006 for a sex offense had to be placed on GPS monitoring. The law was clear that a judge had no discretion; the imposition of GPS was, and is, mandatory. The probationer in this case had committed his crime before the operative date of Dec. 20, 2006 but was placed on probation after that date. This is not uncommon, as it sometimes takes years to prosecute a case. The probationer challenged the condition, arguing that the law violated the constitutional right against ex-post facto laws. The SJC agreed, issuing a narrow ruling. They basically held that anyone whose offense took place before that date could not automatically be placed on GPS pursuant to that statute.

While that ruling may affect many persons, and may, on its face, seem like it will have a major impact, the truth is the ruling will not change things all that much. First, the court did not say anything about persons whose offenses took place after Dec. 20, 2006. Thus, anyone who is on GPS in that scenario will remain on GPS. While they may have different constitutional claims, and those claims may one day be reviewed by the SJC, the prospects of overturning the law is not great. Second, the court struck down the statute in that it mandated GPS. The court did not change anything about a judge's discretion to impose GPS if the specific case merits it. Therein lies the most important part of the decision. The Commonwealth or the Probation office can still petition judges to make independent determinations about whether a specific person should be placed on probation.

Thus, many persons may still be placed on GPS. The difference is that, if they are, it will be only after a judge makes a specific finding that it is necessary.

There are many problems with the law. There are many problems with any law that creates a one-size-fits all solution to a problem that may or may not even exist. There is good evidence that placing persons on GPS monitoring who do not deserve it, and who present a low risk to reoffend, actually does more harm than good. It can destabalize lives, break up families, and cause great shame. While some may say that is a small price to pay for safety, the irony is that statutes like this--and conditions like these--make people more dangerous. If the ultimate goal of probation is rehabilitation and assistance in assimilating back into society, mandated GPS where it is not necessary results in more people violating probation and places them in high risk situations they would otherwise not be in.

Therefore, while the SJC's ruling will free some from this condition, for those who still fall under the provision of the law, the law will continue to do more harm than good--for them and society. The law is not rational; it is an easy political win that will not accomplish what it sets out to do.

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Bernard Baran never committed any crime, but in 1985 he was convicted of multiple sex offenses against various children at the Early Childhood Development Center in Pittsfield, MA, where he had worked. The biggest irony of his case is perhaps the fact that no one committed the crimes for which he was convicted. This was not a case of misidentification. This was not a case of someone guilty of a lesser offense. No sexual abuse crime was ever committed at the Center. Instead, the children were coerced into believing they were molested. They were not molested at the Center, but social workers, police officers, district attorneys, and scared parents all told them they were. And we know today that it is possible to make young children believe things to be true, even though those things are categorically false.

Bernard Baran was one of the first persons prosecuted in the 1980’s in what became known as the era of the “daycare scandals.” Daycare providers all over the United States, from California to New Jersey to Massachusetts, were accused of horrific acts of brutality and depravity against young children. In case after case, overzealous prosecutors and misguided psychologists created an atmosphere of hysteria and suggestibility that helped convict many persons of “fictionalized” crimes.

Baran’s case, while unique in some aspects, was wholly typical of the time. Young children, some who may have been abused by other persons, some who were never abused at all, accused Baran of molesting them. The accusations all came after the children were subjected to long, repeated interviews with the interviewer instructing them that Baran had molested them. The children were offered rewards like food and toys; they were told how and when Baran supposedly molested them; they were chastised when they failed to parrot the accusations back and commended when they finally did; and their parents were tempted by the possibility of lucrative civil suits against the daycare center following a conviction—a proposition that many parents took up, some even before the criminal prosecution commenced.

On the other hand, Mr. Baran’s case was unique because his own personal history made him particularly vulnerable to the hysteria of the time. Baran was a young, openly gay male living in a less-than-accepting society. The parents of the first boy to make an accusation were openly homophobic and uncomfortable with Baran caring for their children. At trial, his homosexuality was used against him., The prosecution asserted that homosexuals were more likely to carry venereal diseases. Baran was even characterized as a “kid in a candy store.”

In 2006, over twenty years after his convictions, Baran was granted a new trial. On May 15, 2009 the Massachusetts Appeals Court affirmed the judge’s order Comm. v. Baran, 74 Mass. App. Ct 256; 2009. By June 9th, the District Attorney for Berkshire County had decided not to pursue Mr. Baran any longer.


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Baran was granted a new trial based primarily on one theory—that his trial attorney was ineffective. The motion for a new trial was heard by Judge Francis Fecteau, who found that his trial attorney had failed to hire or even consult with an expert on suggestibility; such an expert could have provided the jury with an explanation of how children could actually make up something that never happened. Fecteau also found that the attorney had failed to investigate and present evidence that at least two of the children may have actually been molested by a relative long before coming in contact with Baran. If true, it would have also explained how those children were able to describe abuse that they very well may have experienced, just not at the hands of Bernard Baran.

Judge Fecteau sidestepped one issue, that of prosecutorial misconduct. The Appeals Court did not. In a lengthy opinion, the Appeals Court chastised the prosecutor -Daniel Ford, who is now a judge - for all the evidence he failed to turn over, including the unedited videotapes of interviews with the children in which they actually deny Baran did anything and, in some instances, accuse other persons of abuse. An “edited” version was available at the time of Baran’s trial in a very short, ten minute clip, as played for the grand jury. The edited tape contained only choice segments of the interviews in which the children were coerced into accusing Baran of abuse. They failed to capture the coercion before the accusations or the various denials of abuse which were uniformly met with disbelief by the interviewers.

The prosecutorial misconduct in the Baran case also sets it apart from other daycare cases of the 80’s. In some cases, the misconduct, the coercion and suggestive interviews were not hidden; instead, they were triumphed as cutting-edge techniques that brought to light all of the wrong doing. It was this transparency that ultimately helped free many of these wrongfully convicted persons once it became clear that these techniques were producing false confessions. In Mr. Baran’s case, because much of this evidence was buried, his vindication took much longer.

Today, suggestive questioning has been replaced today by more legitimate methods of obtaining accurate information in cases of suspected abuse. However, the wrongs that led to Baran’s convictions still exist: manipulating witnesses, hiding evidence, less than competent counsel, and prejudice. The Baran case stands as an enduring lesson that hysteria surrounding an offense can often trump truth and justice.

Congress passed the Adam Walsh Act (“Act”) in 2006 in an attempt to bring sweeping changes to how the federal government and the states dealt with sex offenders. The Act included provisions altering federal practice and financial incentives for states to follow suit. The two main areas of reform were registration and civil commitment. Three years later, much of what the Act set out to accomplish has not come to fruition. Instead, legal challenges, impossible standards, and slow responses have resulted in very little practical change. [Note: For a full description of the Act and its predecessor, see Federal Law Regarding Sex Offenders - Major Provisions of the Adam Walsh Act of 2006.] As well, in April, 2009, the National Consortium for Justice Information and Statistics surveyed all states regarding compliance with the Walsh Act.


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Registration

The Act attempted to establish a federal sex offender registry, to criminalize failure to register after moving across state lines, and mandated that states change their registries (or create one if they did not already have a registry) to conform with the federal registry. As of today, there still is no national registry. Persons on probation for federal sex offenses are required to “register” with their probation officer, but their names are not placed in any registry. Additionally, the government has yet to coordinate the state registries with the non-existent national registry.

The ultimate goal of the national registry was to have one-stop shopping. Anyone in the country would be able to look up any sex offender anywhere else through an online database. That database would be composed of the 50 state registries and federal registry. In most states, the Act broadened the number of persons required to register. Moreover, it took away any discretion in classifying offenders by level of danger. Instead of states having the discretion of who to classify, and whether to make their information public, the Act mandated everyone convicted of a sex offense according to the laws in effect in each state be put on-line. Before, some states, like Massachusetts, retained the discretion of whether to include certain people on the registry, such as juveniles or those who posed no risk to the public. The Act eliminated that by making the fact of a conviction the sole requirement for registration. The only state-to-state difference would be the amount of time someone would remain on the registry.

No state has yet been able to comply with the strict requirements the Act set up. One issue is money; California, Florida, Nevada, Maine, Vermont, West Virginia and Oregon cannot afford to do what the government requires. The penalty for not complying is the loss of 10% of certain federal grants. The cost of compliance, however, is often much more--a large state like California would need to create an infrastructure to deal with the requirements by hiring many more personnel, would need to create and maintain the technology to support the database, and would likely experience increased prosecutions. For some states, especially in these economic times, compliance is not likely in their future.

Other states have repeatedly tried to comply. Some states like Louisiana and Oklahoma, believed they were compliant, and sought certification. Yet, as of today, not one state has yet been certified by the U.S. Attorney General as compliant with the registration requirements of the Act. Additionally, all states were given the option to opt out of the registration requirements if their state constitutions prohibited them from complying with the federal regulations. Massachusetts is one state that will likely seek to opt out for constitutional reasons. The MA Supreme Judicial Court has held (Doe v. Attorney General, 426 Mass 136; 1997) that the MA Constitution prohibits internet dissemination of information about persons who do not present a high risk to reoffend. The Constitution also requires individualized hearings before someone’s information can be published to the public. These two rights alone would be enough to assure Massachusetts would never be able to comply with the Act. Certainly, Massachusetts is not alone; Pennsylvania is one of several states which don’t allow juvenile registration.

Accordingly, there is no national registry today and no registry likely to come any time soon. Moreover, even if some states manage to comply with the strict requirements, there are still states that would not, either for financial or legal reasons. If that happens, then there would never truly be a national registry and the underlying purpose of the Act would be frustrated. Congress has held some follow up hearings (see Implementing the Adam Walsh Act: Request for a Delay) since the passage of the Act in order to determine whether to relax requirements or scrap the idea altogether. As of now, nothing has emerged. However, if it becomes apparent that a national registry is simply impractical, Congress may reconsider the entire federal registry.

(The U.S. Department of Justice website currently has a “National Sex Offender Public Website”, an ad- hoc amalgam of the currently existing state websites. It thereby has no consistent qualifications for listing- some states place all sex offenders on their individual sites, while other states only place level 3 offenders. As well, each state has its own criteria for classifying sex offenders within the levels. And of course, what is an offense in one state may well not be an offense in another, as, for example, concerning the age of consent, which varies among the states from 14 to 18.)

Civil Commitment

The Act also created a federal civil commitment scheme and added incentives for states to do the same. Civil commitment of “sexually dangerous persons” became widely used in the 1990’s, as states sought a solution to the perceived problem of sexual offenders recidivating. Such civil commitment, pursuant to a judicial hearing, commenced after the completion of the sentence for the sex crime; theoretically the commitment would be to an institution other than a prison. Many states, including Massachusetts, now have the power to civilly commit someone for one day to life if they are found to be sexually dangerous--that is, they are highly likely to reoffend if released. The person can only be released if they are no longer dangerous, presumably after undertaking an extensive treatment regimen or if some other life altering event changes their risk.

The Act gave the federal government the power to civilly commit persons who were in federal custody. The Act was not limited to persons in custody for sex offenses, but also included persons who simply had a history of sex offenses (federal or state). Like the registration requirements, this component of the Act has been largely unsuccessful. As of today, there is only one person who has been civilly committed (U.S. v Shields, 07-cv-12056; J. Saris). Courts have either found this part of the Act unconstitutional or found the government’s petition lacked merit.

A federal facility in Butner, North Carolina is the prison with the most sex offenders in Federal custody. The facility is the home of the federal sex offender treatment program.. After the Act was passed, that facility became the primary institution for housing persons being considered for civil commitment. It is also intended to house anyone actually committed. However, .the district court in Butner ruled that the federal civil commitment statute is unconstitutional--it went beyond the enumerated powers of the federal government. The government appealed and the 4th Circuit Court agreed with the district court, also ruling that the Act was unconstitutional. The Supreme Court has agreed to hear the case and will ultimately decide the fate of federal civil commitment. If the Court upholds the lower courts’ decisions, federal civil commitment will have been a failed experiment. If they reverse, then the government can finally begin the long process of holding these hearings.

In the time it has taken to mount these legal challenges, almost 70 persons have been transferred to Butner for evaluation and commitment. However, because the Act’s future is uncertain, these men are essentially being held after the conclusion of their sentence in violation of their civil liberties. Some are transferred before their sentence expires, but because of the backlog of cases, those men remain imprisoned after completion of their sentences, waiting to see if the government can legally commit them. If the Supreme Court upholds the Act’s constitutionality, then each of these 70 men will have to line up for their day in court to determine if the government may civilly commit him, given the particulars of each person’s case. It could be years before the courts catch up with this backlog.

Meanwhile, there have been several scattered rulings from other jurisdictions concerning this portion of the Act. Before the government decided to funnel all commitment hearings through Butner, several district United States Attorneys’ offices had petitioned for civil commitment in specific cases. Massachusetts had the most petitions, about 10. There were also petitions in Oklahoma, Minnesota, and Hawaii. The several district courts split on the constitutionality of the Act. In Massachusetts alone, two judges held it was unconstitutional while two upheld the Act; the act was upheld in Hawaii and Oklahoma but invalidated in Minnesota. None of this matters now since the Supreme Court has agreed to decide whether the act is actually constitutional.

In the meantime, for the courts that upheld the act, many have now heard cases on the merits. Yet, only one person, in Massachusetts (see above), has been found “dangerous” after a hearing. Every other case on the merits has resulted in a ruling in favor of the defendant. Thus, three years after the Act’s passage, it has resulted in the civil commitment of just one person nationally.

Unlike the national registry, the fate of the federal civil commitment is not based on financial considerations. Either this part of the Act is or is not constitutional. If it is not, then there can be no Federal civil commitment. If it is, the government will begin to hold hearings in Butner to try and commit the persons it believes are dangerous. What is certain, however, is that the process will be long as the backlog of persons potentially subject to civil commitment continues to grow.

On Tuesday, June 9th, 2009, District Attorney David Capeless announced that he will not seek to further appeal Mr. Baran’s case nor will he seek to retry him. Although the DA refuses to state that Mr. Baran is innocent, he did acknowledge that mistakes were made in Mr. Baran’s prosecution. The DA credited his decision as being in the best interests of the “victims.” He added, “Twenty-four years ago, the investigation and prosecution were undertaken for their benefit. What I do today, as best I can, is also for their benefit.” However, the DA failed to acknowledge that it was only the mistakes his office made that created these “victims.” Anyone who reads the Appeals Court decision knows that there was no actual crime. Instead, the children were coerced into believing something happened when it did not. Mr. Baran was a victim; a victim of an over-zealous prosecutor with a win-at-all-costs mentality.

For the first time in more than 27 years, justice has finally been served: Mr. Baran is truly free.

For more on Bernard Baran, see here.

SORB Hearing Examiner caught using Facebook to talk about his cases

Former Official Criticizes Sex Offender Registry Board

Today the Appeals Court unanimously affirmed Judge Fecteau’s order for a new trial on behalf of Bernard Baran. While we are elated, we are not surprised. The court’s thoughtful opinion carefully tracks the various mistakes by trial counsel, and the egregious actions by the prosecutor, in withholding evidence, and manipulating what little evidence was disclosed.

See decision here

A  panel discussion on New Hampshire Channel 50, MyTV, that was aired back in January of 2006 has been installed on the site. The panel members include Attorney John Swomley of Swomley & Associates and Dr. Daniel Kriegman as well as callers to the television station.

If you are not familiar with Judge Cashman's Vermont decision regarding the conviction of a sex offense, see here.