Thursday, November 5, 2009


I just came across an article in the print edition of 'Reason' magazine (December, 2009: 'How to Get Ahead In Law', pp. 36-7; not available on-line until the next monthly print edition comes out).

It concerns Bernard Baran. He was one of the earliest of the ‘pre-school’ defendants in that first, ominous manifestation of public mania (and government complicity) in the early 1980s.

He has just been freed after 22 years, half his life, in prison, where he was raped and assaulted (it being open season on ‘child molesters’ in there and such assaults being the only public service some types of inmates can think to provide).

The case against him so riddled with prosecutorial misconduct that the State doesn’t dare re-try it.

Especially since the miscreant prosecutor from 1985 is now a sitting Judge of the Superior Court.
There is a strong possibility that a homophobic mother placed the blame on him in order to divert attention from the child’s stepfather, whom the child had originally reported as the molester.

The DA’s interview tapes of the children, withheld from an incompetent or spineless defense counsel, indicated stunningly overt instances of browbeating or enticement of child ‘witnesses’ and ‘victims’. The segments which clearly pointed to the defendant’s innocence – attested to by the children – were also withheld.

As profoundly painful as it is to imagine 22 years of a life wracked away on a bad rap, it is even more frightening to imagine what can happen in a time of government-induced public mania when prosecutors realize that they will never be held accountable. While this particular prosecutor later found added ‘insurance’ by securing appointment to the Bench, few prosecutors are ever investigated for malfeasance, and that would hold especially true in sex-offense cases since – as you may recall – legislatures thoughtfully and deliberately (indeed, in some of the only elements of sex offense laws that can be accurately described as ‘thought out’) provided the police-and-prosecutor free-pass clause: in matters relating to sex-offenders, if you mean well, then you cannot be held civilly or criminally liable for whatever you might do.

Nor can it be accepted that ‘interviewing techniques weren’t as well developed then as they are now’. Despite the fact that computers were a lot clunkier and ‘portable phones’ were the size of briefcases and available only to the wealthy, 1985 was not the Middle Ages: truth was still truth, a lie was still a lie, and coercing or rewarding a witness for the desired testimony was still clearly unprofessional, immoral, and a crime. You didn’t need a Harvard Ph.D. in psychology or a Yale law degree to know that.

It was a time of mania and the awful feedback loop was created whereby each Constitutional and legal barrier, as it was burned away, collapsed into the flames of the mania and fueled them further.

But that isn’t the bad news. The bad news is that they got away with it then, and so half a decade later created the specific sex-offense mania We have been dealing with for almost 20 years.

The corruption – perversion, even – of criminal justice in this sex-offense mania has been far more profound than We know, and surely far more intense than anything even hinted at in the pious – almost impious – blathering of the majority in Poritz.

They told themselves that it was in a good cause; that it was an emergency; that some people didn’t deserve the protections of the Constitution; that the prosecutor’s job was to avenge society when it sought vengeance; that the Constitution was ‘quaint’ where it obstructed such vengeance; that all that stood between the helpless victimized citizenry and the monsters were the fearless vampire-killer prosecutors.

And so they were invited in through the front door, welcomed, with the same frenzied mixture of relief and appreciation that old newsreels captured on the streets of Berlin in another recent Dark Age.

One defender of the former prosecutor (and now the sitting Superior Court Judge ) bleated that “it’s unfair to hold the judge accountable for something he did a quarter century ago”. Marvelous. And isn’t that precisely what so many of the sex-offense laws do in their retroactivity? Isn’t that what AWASORNA wants to do even now?

Twenty-two years in prison for a frame-up. Does anyone want to speculate on the quantum of pain that such a pilgrimage through hell caused to this man? Who will accept responsibility for the verrrry bad juju, the implacable karmic bill, that has been run up through the undeserved suffering this young – now middle-aged – man has gone through?

And does anyone really believe that there isn’t some Collector – on some plane of existence not very far from this one – that will enforce the collection of so monstrous a debt?

I think perhaps all Americans might understand now why the Puritans were so given to public Days of Prayer, when the entire community would gather to reflect not only on its personal sins, but on such sins as were committed by the public authorities on the authority of the entire community and for which the entire community, and each adult in it, was in a very real way responsible.

Now that was a technique that was highly developed back then, and appears to have been lost now.

But I’m not sure that pleading ignorance is going to be any excuse in any event.

If I recall correctly, it was Thomas Jefferson, contemplating slavery, who said “I tremble for my country, when I think on the fact that there is a just God”.

Weep not for him who has now been released, but on those who think that a few bucks and a puff-piece in the papers, or just a brassy bray to the effect that extremism in the war against crime is no vice, is going to make it all right, and that it will get a lot of ‘honorable’ people off the hook.

But as they like to tell you in the interrogation room: Sorry, that’s not how it works.

I think far more prosecutors and jurists than anybody would care to speculate would see themselves in the movie ‘Judgment at Nuremberg’, and not as the fearless American prosecutor (Richard Widmark) or the rock-jawed American judge (Spencer Tracy) but rather as the German judges – now defendants – personified most abhorrently in the cultured persona of the Burt Lancaster character: defending himself and his Nazi jurisprudence at the very end, he said to Tracy “It wasn’t supposed to turn out like this”. To which Tracy, standing at the door to the cell, retorted quietly: “But it was guaranteed to turn out like this, the very first time you sentenced a man you knew to be innocent”.

Frankly I think Jefferson was right to be afraid, to be very afraid. And I think that there will be an Accounting yet.

Before that time, I think the American People – Constitutionally the ultimate judges of their government – must step up and put an end to this treacherous betrayal that has gone on for so many years now.

And if you need to take a Day of Prayer to think that one over, well … I support that fully.

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