—–Original Message—–
From: Harvey A. Silverglate
Sent: Friday, August 23, 2002 4:17 PM
To: ‘Vollmar, Susan Ryan’
Subject: French Wall’s letter to the editor
Susan,
French Wall has been kind enough to send me a copy of his letter-to-the-editor sent to the Phoenix earlier this month, responding to (and, more precisely, enlarging upon) the TJI piece done by Josh Gewolb and me on a couple of aspects of the current legal proceedings against Alden Baker in Middlesex County. Wall’s letter does supply some needed background to the earlier prosecution against Baker that resulted in his conviction. This is background that I agree is essential in understanding the full implications of the current efforts by the Middlesex D.A. to keep Baker in prison for life.
However, it was considerably beyond the scope of the TJI piece. I do think that to the extent the paper publishes all or part of Wall’s letter, it will add important information to the public’s knowledge of this outrageous campaign against Baker.
When, later, I write more about the legal proceedings to lock Baker up for life as a “sexually dangerous” person, I plan to talk more about the unfairness of the earlier criminal proceedings against him.
In short, I commend French Wall’s letter to you.
Harvey
The Guide Magazine
PO Box 990593
Boston, MA 02199
(617) 266-8557, fax (617) 266-1125
www.guidemag.com
Kudos to Harvey Silverglate and Joshua Gewolb for warning your readers (in “Rough Sex,” Aug 1-8, 2002) that Middlesex County District Attorney Martha Coakley is crusading to brand those who engage in consensual, adult/adult S&M sex as dangerous perverts deserving commitment to a prison euphemistically labeled a “treatment center.”
Silverglate and Gewolb rightly note that Al Baker, who has consistently maintained his innocence and is currently being held at the Nemansket Correctional Facility in Bridgewater, has had his privileged attorney/client mail seized and has been denied access to literature key to preparing his defense. However, the civil liberties violations suffered by Baker (and thousands of others similarly situated) are myriad.
Baker’s initial 1991 trial, in which he was convicted of two counts of raping a 29-year-old man, was a travesty. Baker’s accuser waited months before alleging the mutual oral sex they had on a series of Saturday nights was rape. In fact, he continued to see (and have sex with!) Baker after he had testified about his “rape” before a grand jury. He offered no coherent reason why he waited so long to report his “rape” nor why he continued to socialize with Baker, lending credence to Baker’s assertion that he was set up by Teamsters (the key police informants were union officials) livid with Baker’s company’s role in providing non-union labor to striking work sites.
At the trial, prosecutors played a redacted videotape of Baker’s self-taped S&M frolics with other like-minded adults, none of whom had anything to do with the alleged victim– who neither saw any of the tapes nor participated in any of the kinky activities portrayed. Though those appearing in the tapes all testified for Baker, the damage was done as the court saw Baker as a growling master of rough sex.
Pursuant to his rape arrest, Baker’s home was ransacked. Among the 3000 or so images found on the gay bulletin board system Baker ran, prosecutors alleged that 22 models were under age 18, and thus their pictures constituted child pornography. Though the models were all young adults who could as easily be 23 as 17, lacking proof of age, Baker was charged with 187 counts of “child sexual exploitation,” one count for anytime anyone anywhere on the planet downloaded one of the suspect images (the likes of which can be found on mainstream web sites maintained by Yahoo and similar ventures).
Having served ten years as a rapist (who never raped) and a sexual exploiter of children (who never touched a child), Baker is now threatened by lifetime incarceration by Middlesex County prosecutors. A paid-by-the-state “expert” Ira F. Silverman, after reviewing only paperwork supplied by prosecutors– never seeing or speaking with Baker, swore that Baker was “sexually dangerous.” Silverman testified that because Baker owned “twenty or so” sex toys, because he like to cruise for sex with other like-minded adults, and because he enjoyed S&M sex, he was sick and in need of “treatment.” Silverman, whose legendary quackery has earned him the moniker “Dr. Dildo,” flirted with perjury by omitting in his report key language from the psychiatric manual which distinguishes between “real” and “simulated” sadistic activities. (Baker carefully staged his S&M scenes with other willing adult participants; his sadism was clearly “simulated,” not “real.”)
And Middlesex County contends that Baker’s refusal to participate in a sex offender treatment program confirms his dangerousness. But if he were to participate, nothing he said to clinicians (who would be probing for his deepest sexual fantasies) would be confidential– everything he said would be recorded and used against him in court, even if it had nothing to do with his alleged “crimes.” Clearly, no one with competent counsel would agree to divulge sex secrets to a policeman masquerading as a doctor.
Additionally, Middlesex County is looking to resurrect that redacted videotape to once-again inflame the court that will be deciding Baker’s fate. But prosecutors conveniently cannot locate any of the other voluminous, potentially exculpatory, evidence seized for Baker’s initial trial.
The spectacular sex hysteria that currently grips our culture means that egregious abridgments of constitutional rights are condoned by judges fearful of landing on the front page as “soft on child molesters” and that prosecutors like Martha Coakley (who made her career prosecuting innocent people accused of literally unbelievable daycare abuses) will continue to demonize sexual minorities in service of her political ambitions. And with John Ashcroft the nation’s top cop, one doesn’t have to be a resident of puritanical Middlesex County to be very worried about what’s happening to Al Baker.
French Wall
Offensive defense
BY HARVEY A. SILVERGLATE & JOSHUA E. GEWOLB
Boston Phoenix
——————————————————————————–
Alden Baker may not be the kind of guy everyone would like to invite to dinner. In the early 1990s, the Medford businessman twice raped his chauffeur after unsuccessful nights of cruising for male lovers, a crime for which he received a six-to-10-year prison sentence in 1991. When he was arrested, authorities seized thousands of pornographic images and videos — some of it kiddie porn — from a computer bulletin board Baker maintained.
In the spring of 2001, Baker finished serving his time, but the government wants to keep him locked up as a sexually dangerous person. Chapter 123A of the Massachusetts General Laws provides for the indefinite detention (up to a life term) of ex-cons with mental abnormalities that predispose them to commit additional sex crimes. Baker is currently being held at the Nemansket Correctional Center, a state-run treatment facility for sexually dangerous persons, pending a civil-commitment trial in Middlesex County.
If a preliminary hearing held this spring is any indication, the government plans to contend at the trial that what makes Baker dangerous is his taste for sadomasochistic sex, including altogether voluntary and consensual S&M encounters. Middlesex County prosecutors are arguing that Baker’s S&M predilections indicate a mental abnormality that makes him likely to engage in sexual offenses if he is not committed. Baker plans to contest these charges vigorously, and the case will likely emerge as a test of the prosecutors’ claim that any sex that inflicts pain is dangerous. The trouble is that preparing this defense requires Baker to think about — and, worse, talk with his attorneys about — sex. And thinking about sex is what the authorities at Nemansket want to stop him from doing.
Baker plans to retain an expert witness on sadomasochistic sex to counter the government’s accusation that this practice, even when entirely consensual, is a form of sexual deviancy — which supports the state’s case for committing him. But when Baker’s attorney, Boston’s John G. Swomley, recently sent his client two books by potential witness Guy Baldwin, prison authorities refused to deliver them, citing a regulation prohibiting sexually explicit materials in the prison. Attorney-client privilege protects communications between inmates and their lawyers from the prying eyes of prison authorities, so Swomley filed a court motion asking that the prison authorities be ordered to turn over the books to Baker. In a breathtaking July 22 ruling, Superior Court justice Charles Grabau denied the motion on the grounds that books about sex ” might interfere with the institutional goals of rehabilitation. ” He added that the fact that Swomley knew, from his frequent work at Nemansket, that the packages he marked as confidential would be inspected ” precluded [him] from asserting attorney-client privilege. ” (Disclosure: the authors occasionally collaborate with Swomley, though not on the Baker case.)
The prison authorities are indeed allowed to open mail from attorneys in order to prevent smuggling of contraband (such as drugs) into the prison, but they must do so in front of the inmate to provide assurance that they do not read attorney-client privileged material. This does not, however, give them the right to decide which written materials to pass along to the inmate client. Furthermore, Grabau’s ruling ignores the obvious fact that to participate in their own defense, accused murderers need to read about murder, robbers about robbery, and sex offenders about sex. (The books, by the way, were not terribly racy and contained no illustrations.) In order to assess whether he wants to call Baldwin as a witness, Baker needs to read the expert’s writings — and determine for himself whether he thinks it contains scholarly analysis or perverse drivel. The expert, after all, could be examined on the witness stand about all his published works, so the client must be able to read what the expert has written. Keeping Baker, in the name of ” rehabilitation, ” from reading books by potential expert witnesses clearly denies him his Sixth Amendment right to work with his lawyer and participate in his defense.
Many prisons allow inmates to receive steamy writing, but not sexy pictures — a distinction that is somewhat arbitrary, but not irrational if one accepts the proposition that sexually explicit material for prisoners should be censored at all. The corrections code, however, allows the Nemansket superintendent to exclude any material that interferes with the ” rehabilitation ” process there, and he appears to have decided to ban erotic prose. It would be unlawful for a lawyer to smuggle erotic material to his client for its entertainment or prurient value, under cover of an ” attorney-client privilege ” seal.
Swomley, however, did no such thing. He is plotting a major attack on a key prong of the government’s case for Baker’s commitment — the notion that indulgence in consensual sadomasochistic sex in and of itself indicates dangerousness — and is duty-bound to consult with his client in doing so. His word that the materials marked as attorney-client privileged were necessary to Baker’s defense should have been enough. Once Judge Grabau examined the record, he immediately should have seen the importance and relevance of the materials to Baker’s defense and should have supported Swomley’s judgment. Ironically, the same day he denied the motion to allow Baker to receive the books, he granted a motion allowing Swomley and Baker to screen some of Baker’s homemade blue movies at Nemansket, also as part of the preparation for trial. Defending sex crimes, as Grabau obviously should know, requires talk of sex. The Sixth Amendment trumps prison regulations any day, notwithstanding prison authorities’ notions of what constitutes ” good ” versus ” bad ” sex.
Issue Date: August 1 - 8, 2002