Judge Daniel A. Ford: 25 Years Later,...

Judge Daniel A. Ford: 25 Years Later, Judge Comes Under Fire

Posted in the Pittsfield Forum

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HellerClimateRef ugee

Rockville, MD

#1 Sep 26, 2009
'Prosecutorial misconduct alleged in molestation case'
By Jack Dew, September 21, 2009,
Massachusetts Lawyers Weekly
---------
Why isn't this article appearing in The Berkshire Eagle?
The writer is long-time Berkshire Eagle reporter, Jack Dew.
HellerClimateRef ugee

Rockville, MD

#2 Sep 26, 2009
Nearly a quarter-century after he prosecuted and convicted a Pittsfield man for molesting children at a day care center, Daniel A. Ford—today a Superior Court judge—may find himself in the role of defendant, forced to respond to allegations of prosecutorial misconduct.

As a prosecutor in the Berkshire County District Attorney’s Office, Ford tried Bernard Baran, an 18-year-old who was accused of molesting children at the Early Childhood Development Center in Pittsfield . Baran was found guilty of three counts of rape and five counts of indecent assault and battery and sentenced to three concurrent terms of life in prison.

But his cause was taken up by a group of supporters who felt that Baran, who is openly gay, was swept up in a tide of hysteria that surrounded allegations of day-care sex abuse in the 1980s. In 2006, a Superior Court judge freed Baran, concluding that his trial attorney, Leonard Conway of Springfield , offered ineffective assistance.

In May, the Appeals Court affirmed that decision and went even further. Though a lower court judge had sidestepped questions of prosecutorial misconduct by finding there were sufficient grounds for a new trial without tackling that issue, the three-judge Appeals Court panel probed the question, concluding that, at the very least, the record was “troubling.”

The panel laid out Ford’s possible missteps over three pages, finding that he may have failed to turn over potentially exculpatory evidence and that his closing argument may have been improper.

In the end, though, the Appeals Court panel did what the lower court judge had done: It decided that—since there were sufficient grounds to order a new trial without delving into Ford’s possible transgressions, and it was uncertain whether the DA would seek a new trial—“further evidentiary hearings and findings” on potential misconduct “would not serve the interests of judicial economy.”

Now Baran’s appellate team of John G. Swomley, Eric B. Tennen and Harvey A. Silverglate say the Board of Bar Overseers should pursue a complaint against Ford. If the Office of Bar Counsel agrees, the sitting Superior Court judge could be forced to defend his conduct of 25 years ago. And if the BBO finds fault, the ex-prosecutor could face a reprimand, suspension or even disbarment.

“[Ford’s] conduct falls below that of an ordinary, fallible attorney,” Swomley says in an interview in his Boston office.“I think that what he did was intentional and designed to further his career. I don’t think any of the allegations of prosecutorial misconduct stem from behavior that was accidental.”

While Baran’s appellate team says it believes Ford should be pursued for misconduct, the lawyers decline to comment when asked if they will file a complaint themselves, citing rules that prohibit public discussion of BBO matters.

In a telephone interview, Ford says it is his practice not to comment on cases that he prosecuted.“They are at least 22 years old, and I don’t have access to the files. It is very difficult to comment about cases that I have prosecuted.”

Still, he says, he is unaware of any complaint having been filed against him with the BBO.
HellerClimateRef ugee

Rockville, MD

#3 Sep 26, 2009
Exculpatory evidence

Videotaped interviews of the five children who claimed Baran had molested them were central to the case and, ultimately, the appeal. The tapes were made—according to prosecutors—to save the children the hardship of testifying before a grand jury, for which severely edited versions were played, depicting the children saying in unequivocal terms that Baran had assaulted them.

But Baran’s appellate team sought unedited versions of the tapes, which went missing for years until the DA’s Office discovered them in a stray box in 2004.

The complete versions of the tapes show the children being asked leading questions as they refused to speak. At times, some said Baran had molested them. At other points, they said no one had touched them. And some said they had been molested by someone else entirely.

During the appeal, Berkshire County District Attorney David F. Capeless argued that the tapes were essentially meaningless within the framework of the evidence. All had been made days or weeks after the children had reported the abuse and given detailed statements to investigators. The court should not, he argued, assume that the children were equally reluctant and equivocal when they gave their earlier statements.

The appellate team argued that Baran’s trial attorney should have sought the tapes and played them for the jury; had he done so, it reasoned, the credibility of the children’s testimony would have been severely weakened.

The Superior Court and then the Appeals Court agreed. Both found the tapes to be persuasive evidence of Conway ’s ineffectiveness. But the Appeals Court pushed that claim even further:“While the record does not settle the question whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention.”

The tapes reveal “significant vacillation and uncertainty on the part of many, if not all, of the children interviewed,” the three-judge panel wrote,“as well as considerable material from which it could be inferred that the children’s testimony was coached.”

At a minimum, they added, the tapes “would have provided significant grist for impeachment of the children’s testimony as well as of those who had interviewed them.”

Swomley and Silverglate, in separate interviews, say Ford’s failure to turn over the tapes effectively denied Baran his best defense. By itself, they say, that failure should prompt action by the BBO, as should the fact that he edited the tapes for the grand jury, depriving the jurors access to exculpatory information.

“You just don’t edit out the exculpatory parts of the record,” Swomley says.“In that respect, I don’t think you need to reach very far for several parts of this misconduct case.”

Authorities also investigated claims from two of the five alleged victims that they had been molested by someone else. A girl told police that her mother’s boyfriend had molested her in a West Springfield motel room. That report, however, was never shared with the defense.
HellerClimateRef ugee

Rockville, MD

#4 Sep 26, 2009
And as Baran’s trial was beginning, an alleged victim who had been placed in foster care told the Department of Social Services that a friend of his mother had molested him. According to the records, that report was given to the District Attorney’s Office just days after the trial ended but never turned over to the defense.

The documents didn’t surface until the appellate team discovered them in files from civil cases that some of the alleged victims pursued against the day care center. The Appeals Court said both reports would have helped the defense impeach the credibility of the children and defuse the prosecution’s argument that the kids could describe sex acts only because they had been Baran’s victims.

Swomley calls it “inconceivable” that Ford didn’t know of the reports. Regarding the boy who had been molested by his mother’s boyfriend, he says he suspects DSS “intentionally withheld” its report “until after the verdict. But even [if Ford] got it after the verdict, that doesn’t absolve him. He still has a responsibility to turn that information over.”
HellerClimateRef ugee

Rockville, MD

#5 Sep 26, 2009
Improper closing argument

As he summed up a case that had moved remarkably swiftly from the first complaints in October 1984, to a trial in January 1985, Ford made a forceful, sweeping closing argument that the Appeals Court , 25 years later, called improper, containing “a number of passages apparently designed to inflame the jurors’ passions.”

Ford urged the jurors to return a guilty verdict “in the name of justice and decency” and said that if “ever there was a case where the ends of justice literally cry out for a guilty verdict, this is that case ... because the truth is the mother of justice and in this case truth came literally from the mouths of babes.”

And Ford said that Baran had open access to the alleged victims and “could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite.”

He said Baran was like “a chocoholic in a candy store, and indeed, for him, perpetrating these despicable acts was like taking candy from a baby.”

Worcester attorney Roy A. Bourgeois of Bourgeois, Dresser, White & McGourthy said the improper closing rule is designed to protect a defendant’s right to due process and guarantee that prosecutors act within the bounds of the rules of the courtroom. If a prosecutor suggests the jury is obligated to convict, or appeals to the prejudices of jurors, he is crossing the line between evidence and emotion.

But while the Appeals Court and the Supreme Judicial Court frequently overturn verdicts based on improper closing arguments, these transgressions rarely rise to the level of misconduct, he says.

“Not every mistake, whether by a prosecutor or a civilian lawyer, means some ethical rule was violated. It just means the lawyer screwed up,” he says.

But some cases can be so egregious that they merit sanction. In the end, that judgment call will first be made by the Office of Bar Counsel, which can decide whether to pursue the case. If it finds the complaints have merit, it will take the matter to the BBO, which can reprimand Ford or recommend suspension or even disbarment; in that case, the SJC would ultimately decide the punishment. The process could be a lengthy one, taking three years or more from complaint to completion, attorneys say.
Pulifory

Rensselaer, NY

#7 Sep 26, 2009
You can't prosecute a sitting judge in this county Mr. Heller.
HellerClimateRef ugee

Rockville, MD

#9 Sep 26, 2009
‘Not just winning that counts’

Ford, 60, worked in the DA’s Office from 1979 to 1987, and then joined the white-shoe Pittsfield firm of Cain, Hibbard, Myers & Cook. He was appointed to the bench by Gov. Michael S. Dukakis in 1989.

Attorneys say his approach to court is no-nonsense –he values those who are prepared and has little patience for those who are not.

“He is a sharp guy who is up on the law,” observes a criminal defense attorney who asks not to be named.“He will cut against prosecutors as much as defense attorneys. He appreciates it when people are up on the law and prepared, though he can sometimes be a little rushing and dismissive of arguments.”

Of the roughly 1,000 cases investigated each year by the Office of Bar Counsel, only nine or 10 involve prosecutors, according to Bar Counsel Constance V. Vecchione, who cannot recall a single case that involved a sitting judge accused of misconduct as an assistant district attorney.

While the office doesn’t receive many complaints of prosecutorial misconduct, she says, sanctions have been issued against prosecutors for a range of wrongdoing, from improper closing arguments to eliciting a confession using the fabricated confession of a co-defendant.

Vecchione says she cannot comment on whether a complaint has been filed against Ford. Bar counsel investigations become public only if a petition for discipline is filed.

Michael E. Mone, a lawyer at Esdaile, Barrett & Esdaile in Boston , has represented prosecutors before the BBO. If bar counsel decides to pursue the Ford matter, he says, the judge will have to explain his conduct, much of which may have “happened in the heat of battle. You don’t get a do-over in a trial. You can’t say,‘I didn’t mean to say that’ and take it back.”

The Commission on Judicial Conduct could also have jurisdiction over the case, though Gillian E. Pearson, the CJC’s executive director, says she hasn’t seen a judge pursued for pre-bench misconduct in her 20-year tenure.
HellerClimateRef ugee

Rockville, MD

#11 Sep 26, 2009
Pulifory wrote:
You can't prosecute a sitting judge in this county Mr. Heller.
I wouldn't know as I am not an attorney.
You might want to contact Massachusetts Lawyers Weekly or Reporter Jack Dew for an answer to your question.
HellerClimateRef ugee

Rockville, MD

#13 Sep 26, 2009
Meanwhile, Capeless was not in office when Baran was tried but handled the case during the last five years of the appeal. He declines to speculate about any possible sanctions against Ford, but says “the hardest thing that anyone has to deal with here is that you are trying to judge based on simple facts, but you are never going to have the whole picture.”

Capeless adds:“One of the biggest problems I had to deal with in this case from the very beginning is that there is so much missing from the record. And of course, after all these years, people’s memories have either faded or are gone entirely.”

Bourgeois, who represents attorneys before the BBO, said the passage of so much time could easily hinder any investigation.

“How fair is it for any lawyer—judge or not—to be prosecuted for things that happened years and years ago, when witnesses’ memories have faded, witnesses may have died? And what’s the point? What is the point?”

But Swomley and Silverglate say that Ford’s conduct, even if 25 years old, cannot go unpunished.

“Every so often, something happens to kind of remind participants in the system that it’s not just winning that counts,” Silverglate says.“It’s partly the process that’s important. This case seems to me to be almost the poster child for how easily things can go wrong and how easily people have a sense that they are absolutely right and everyone else is wrong.”

Ford took shortcuts to get a conviction and bypassed the safeguards that should have guaranteed a fair trial, Silverglate says. And it took 25 years to undo that injustice.

“We don’t want to send a message that we reward prosecutorial misconduct or that, because the prosecutor is now on the bench, he becomes untouchable,” the Cambridge attorney adds.“That is a very bad message to send, so I think something has to be done.” <<<<<

END OF ARTICLE

WALNUT

Leicester, MA

#15 Sep 26, 2009
He makes a good KANGAROO!!!!
Corrupt Appointments

Leicester, MA

#16 Sep 26, 2009
Pulifory wrote:
You can't prosecute a sitting judge in this county Mr. Heller.


But most of our APPOINTED Judges deserve our PERsecution
Statesman

Schenectady, NY

#17 Sep 26, 2009
Corrupt Appointments wrote:
<quoted text>
But most of our APPOINTED Judges deserve our PERsecution
I don't know if I agree with "most", but Dan Ford is, without a doubt, a horrible person.

I have the displeasure of meeting and knowing him personally.

Dan Ford is an extreme bigot.

I feel dirty every time I have a conversation with him. Somehow he feels as if I am part of his little circle becaue I am friends with many of his friends, but everytime he talks something horrible (about race, sexual orientation, ethnicity, etc.) comes out of his mouth.
HellerClimateRef ugee

Rockville, MD

#18 Sep 26, 2009
Statesman wrote:
<quoted text>
I don't know if I agree with "most", but Dan Ford is, without a doubt, a horrible person.
I have the displeasure of meeting and knowing him personally.
Dan Ford is an extreme bigot.
I feel dirty every time I have a conversation with him. Somehow he feels as if I am part of his little circle becaue I am friends with many of his friends, but everytime he talks something horrible (about race, sexual orientation, ethnicity, etc.) comes out of his mouth.
Why does Berkshire County, more often than not, attract the worst lawyers and judges?

Since: Aug 08

Richmond, MA

#19 Sep 26, 2009
Excellent article, thanks for posting. The days of "investigative reporting" are over, refreshing to see someone still has it...
Stubby

Williamstown, MA

#20 Sep 26, 2009
Four words I never thought I woud Type!!!

"Heller, you are right!!"

Even a blind pig finds a truffle sometimes.
interesting

Clifton Park, NY

#21 Sep 27, 2009
Why was the below post (post #6) deleted? It's fact. I, too, know Judge Ford and it is horrible the things he says about gays, blacks, and jews.

Judge Ford is a hate-mongerer, a bigot, and an anti-semite.

That's just fact.

Statesman wrote:
<quoted text>
I don't know if I agree with "most", but Dan Ford is, without a doubt, a horrible person.
I have the displeasure of meeting and knowing him personally.
Dan Ford is an extreme bigot.
I feel dirty every time I have a conversation with him. Somehow he feels as if I am part of his little circle becaue I am friends with many of his friends, but everytime he talks something horrible (about race, sexual orientation, ethnicity, etc.) comes out of his mouth.
Martin

Westfield, MA

#22 Sep 27, 2009
The clowns on here want to free all the molesters,Rapists etc.. on here . Must be family members because no one else wants them free. Dan Ford is one of the most honest people and fair Judge you will ever meet. It is a witch hunt!
HellerClimateRef ugee

Rockville, MD

#23 Sep 27, 2009
Stubby wrote:
Four words I never thought I woud Type!!!
"Heller, you are right!!"
Even a blind pig finds a truffle sometimes.
I didn't write the article, it appeared a week ago in Massachusetts Lawyers Weekly and was written by The Berkshire Eagle's own Jack Dew.
But there has been nothing about it published so far in The Berkshire Eagle, which given Mr. Dew's seniority around there and Judge Ford's presence on the local judiciary, one would have thought that at least there would have been some sort of summary and report.
Given all that, it seemed important enough and topical enough to reproduce here on Topix.
Sally

Pittsfield, MA

#24 Oct 6, 2009
Why is it that all the fat kids turn out to be SOB's as adults - trying to get back at the world b/c of their own insecurities -
makehimsuffer

Deltona, FL

#25 Oct 19, 2009
make him suffer...post his personal info online, then hunt him down and make him suffer.

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