May 30, 2007

 “We believe that Benjamin LaGuer is innocent of all charges,” a letter from Patrick fund-raisers Susan Wadia-Ells and John Hosty to Early reads.

The letter refers to Patrick’s past support of LaGuer, who was convicted of brutally raping a 59-year-old Leominster woman in 1983. LaGuer, 44, is serving a life sentence but claims he is innocent.

Patrick was criticized during last year’s campaign for supporting LaGuer’s parole bid and donating to his cause. But the governor dropped his support after DNA tests linked LaGuer to the crime and has said he believes “justice has been served” in the case.

The letter, which is from the “Free Ben LaGuer Committee,” points out that several DNA experts hired by LaGuer’s defense team have reported that evidence was mishandled and forensic tests were flawed. A few weeks ago, the committee, which is co-chaired by Wadia-Ells and Hosty, asked the state Inspector General to include the LaGuer case in its review of botched tests at the state police Crime Lab.

“We urge you to request an open and transparent independent investigation of the crime and the evidence used against Mr. LaGuer,” the letter to Early states.

Representatives from Early’s office could not be reached last night.

April 8, 2007

FITCHBURG— City Councilor Annie K. DeMartino said she does not know whether Benjamin LaGuer is innocent of the brutal rape and beating of his former 59-year-old neighbor in Leominster in 1983.

But she said she thinks LaGuer, 43 — who was sentenced to 15 years to life in prison in January 1984 after a jury convicted him of aggravated rape — should get a new trial to be sure justice has been done. The victim was a woman she met as a mental health client and became a close friend..............

In the interview Mrs. DeMartino gave to freelance journalist Eric Goldscheider, published last week in the Easthampton-based Valley Advocate, she describes a woman who suffered from paranoid delusions and who identified every black and Hispanic man she saw on the street before and after the trial as her assailant.

March 25, 2007

LaGuer in good spirits after new trial denied

Benjamin LaGuer, who has spent more than two decades denying his culpability in the brutal rape of his former neighbor in Leominster, said he was “in good spirits” yesterday despite the ruling Friday by the state Supreme Judicial Court to deny him a new trial.

“I am undeterred,” he said in a telephone interview yesterday from the Souza-Baranowski Correctional Center in Shirley. “I will not exchange my honor and my biography for freedom. It is not negotiable.” .........

......Mr. LaGuer, who has been denied parole in part because of his refusal to admit his guilt, said he would rather die in prison than accept responsibility for something he did not do.

“I’m not like some politician who changes his position for two electoral points,” he said.

Asked whether he was referring to Mr. Patrick, Mr. LaGuer replied: “If the shoe fits, wear it.”

March 3, 2007 

Letter to the editor, Worcester Telegram

I’d like the opportunity to ask the new district attorney, Joseph J. Early Jr., why he refuses to revisit and review the issue of the handling of Benjamin LaGuer’s DNA?

At this point, and in this venue, there is no need to repeat the facts of the case, Mr. LaGuer’s insistence on his innocence and the mishandling of the DNA.

The question is more to why Mr. Early refuses to look at it. It doesn’t seem possible that he would have had the time to look through all the boxes of paperwork in the early days of his new role as district attorney. I wonder if he is simply following the course of his predecessor.

No one can with all honesty know whether an accused person is innocent or guilty.

Those of us who are standing with Mr. LaGuer are not asking for the prison doors to be flung open and he be let free. Rather we are stating that a retrial is not beyond reason in view of the many questions that have arisen.

We believe that Mr. Early should reconsider.

DOUGLAS MEDINA

Worcester

EDITOR’S NOTE: Commenting last month on the DA’s refusal to do a specific audit of the LaGuer DNA evidence, Mr. Early’s office explained, “The conviction in the Benjamin LaGuer case was obtained without DNA testing …”

December 30, 2006 

Goldscheider: What's at stake in Commonwealth vs. LaGuer 

Metro West Daily News

Next Thursday, a couple of hours before the new governor gets sworn in, the Supreme Judicial Court will hear a challenge to Benjamin LaGuer's 1984 conviction for raping his a 59-year-old neighbor............

It would be a sad day if that blitz prejudices the judiciary against LaGuer. Tactics Sandra L. Hautanen, arguing for the Worcester District Attorney, deploys are shockingly dishonest and should frighten anyone who cares about the rule of law and basic fairness. She has rolled out the same playbook DA John J. Conte, whose term in office ends the day before the hearing, has used to defend the conviction for 23 years: First recite the horrendous nature of the crime (which no one disputes), and then make it look like the case against LaGuer was so overwhelming that constitutional niceties about a fair trial are irrelevant.

December 30, 2006

Over the Line 

Worcester County Da John J. Conte Uses Lies And Illogic In His Brief Against Ben Laguer.

Never doubt the ability of lawyers to massage just about any set of facts into the service of the case they are trying to make. That is the nature of the job and the good ones do it with finesse. Outgoing Worcester County District Attorney John J. Conte recently filed his brief opposing Benjamin LaGuer’s bid for a new trial. The document, available in full at www.BenLaGuer.com, crosses the line from artful to deceitful.

LaGuer’s conviction for a 1983 rape, which became a driving issue in the governor’s race when Deval Patrick’s past advocacy for the inmate became the subject of attack ads, will be revisited during oral arguments in the Massachusetts Supreme Judicial Court on January 4.

November 9, 2006

The Anatomy Of A Political Hit

By Eric Goldscheider, Valley Advocate

For more than two decades, Benjamin LaGuer has done everything in his power to get his claims that he was falsely convicted of rape into the public eye. Last month Kerry Healey turned him into a household name. What she neglected to mention, because it didn’t suit her campaign, was that real doubts about LaGuer’s guilt still linger. A challenge to his conviction is currently in the Supreme Judicial Court based on a potentially exculpatory fingerprint report that was withheld from the defense at trial and which emerged 18 years after that fact.

How did a case before the highest court in the state become a political football in the race to lead the executive branch? The answer is probably rooted in Worcester politics.

On September 20, when Deval Patrick’s convincing primary victory the previous day filled the headlines, what looked like minor machinations in a local Worcester county drama began to unfold. Gov. Mitt Romney nominated James R. Lemire, a longtime acolyte of retiring Worcester District Attorney John J. Conte, for a Superior Court judgeship. Lemire, a seemingly innocuous choice, happens to have been the prosecutor who convicted LaGuer in the trial where the fingerprint report never saw the light of day.

The Governor’s Council, which approves judicial nominees, held its hearing on the Lemire nomination on September 27. Peter Vickery, the western Massachusetts representative, surprised those attending by questioning Lemire about his role in the LaGuer case. Within hours of that hearing, Leominster Mayor Dean Mazzarella, another reliable Conte loyalist, spoke to a local Leominster reporter and fed him a one-source story on wanting to question Patrick about comments attributed to him on www.BenLaGuer.com, a website I have been editing for several years. The Patrick quote, which reads, “I therefore have serious misgivings about the integrity of the criminal justice system in this case, as I believe any citizen would,” had been raised briefly by the Boston Herald during the primary campaign in August. Patrick spokesman Richard Chacon quickly responded in an interview with the Sentinel and Enterprise, which covers Leominster. He defended Patrick’s interest in the case, adding that the comments stemmed from a time when the candidate worked for the National Association for the Advancement of Colored People many years ago. The issue went away until Mazzarella resurrected it a month later.

To fully appreciate the dynamics of the LaGuer case, one has to know that through 23 years of incarceration, LaGuer has been in constant battle with Conte. The inmate became adept at asymmetrical warfare, using the media to embarrass his nemesis time and again while at the same time attracting top notch legal representation. Every time it looked like LaGuer was down for the count—even after a 2002 DNA test seemed to link him to the crime—he revived and came back with a stronger team. His current attorney, James C. Rehnquist, is the son of the late chief justice. Experts have recently gone on record to say that the DNA results look as if they stem from contaminated evidence. Through the years LaGuer won many battles, including a favorable decision by the SJC on the issue of juror racism, and the support of famous people like Elie Wiesel, William Styron, Henry Louis Gates, Jr. and John Silber. LaGuer earned a bachelor’s degree with honors from Boston University while in prison and won a prestigious Pen Award for his writing. But Conte always found a way to prevail in the end and keep LaGuer in prison. He blindly defended the integrity of the conviction, never once showing a willingness to look at new evidence. Now Conte is on the way out and the long-running LaGuer case is headed for arguments in the SJC. Promoting Lemire, who would not likely have kept his job as a prosecutor in the new administration, to a judgeship can be seen as a way to help insulate him from the consequences of foul play in the handling of a conviction Conte cares about deeply.

The timing of Mazzarella’s ploy to extract a statement from Patrick condemning LaGuer makes a connection to the Lemire nomination look like more than mere coincidence. Mazzarella’s credentials for speaking about the case rest on the fact that as a rookie police officer he was one of the first to arrive at the scene of the 1983 crime. He apparently accompanied the victim in the ambulance, but there is no record of his filing a report. The story Mazzarella fed to a local reporter about his concerns that as governor Patrick might give LaGuer preferential treatment appeared in print on Thursday, September 28. That afternoon the mayor went on the Howie Carr drive time radio show to begin a relentless attack on LaGuer and on Patrick’s connection to the case.

By the end of the day, Patrick crafted out a carefully worded statement saying that in his opinion “justice has been served” in the LaGuer case. Those wanting to ensure Lemire’s confirmation, which came to fruition with Vickery casting the lone dissenting vote, were undoubtedly pleased. The issue might have gone away again had two things not happened: 1) Mazzarella’s graphic and incessant recitation of the victim’s condition, combined with a linkage to Patrick, resonated with talk radio hosts and their audiences, triggering a hate-filled feeding frenzy on the airwaves. 2) In his statement, Patrick was untruthful about the extent of his involvement in the LaGuer case, repeating his characterization of it as a minor interest of more than a decade ago.

Early the next week a bombshell hit when the Boston Globe found a letter Patrick had written to the parole board on LaGuer’s behalf in 1998 and then resubmitted at a second hearing in 2000. Later that week it was revealed that Patrick had written a large check ($5,000 is the figure used, but Patrick has yet to confirm that number) in support of LaGuer’s quest for DNA testing.

With those revelations Patrick’s high-flying poll numbers right after the primary looked to be in serious jeopardy. The Healey campaign had just unveiled a TV ad lambasting Patrick for representing a Florida man and getting his death sentence for killing a police officer reduced to life in prison. The LaGuer issue must have seemed like a gift that for the next two weeks just kept on giving. The hate mongers on talk radio led the way. Robert Barry, the son-in-law of the woman LaGuer was convicted of raping, joined Mazzarella on that circuit in continuously repeating gruesome aspects of the crime in graphic detail. Barry even turned his celebrity status into a fundraising opportunity when one radio host, John DePetro, set up a way of donating to his wife, Elizabeth Barry, based on her diagnosis of Lou Gehrig’s disease. The host spent hours hectoring Patrick to contribute to that fund.

The Patrick campaign seemed flummoxed by the day-in-and-day-out drubbing they were getting on the airwaves. Mazzarella demanded a meeting with the candidate and he complied. The Barry family created a mantra out of demanding an apology from him, prompting Patrick to call them and to offer his sympathy for pain the publicity around the 23-year-old crime was causing them. Robert Barry’s response was to publicly rebuke Patrick because he didn’t think his disavowal of LaGuer was strong enough. He and his wife invited television crews into their home and then endorsed Healey at a press conference where Elizabeth Barry, whose body is wasting from her disease, was wheeled in to appear with the Republican candidate.

The appearance meshed with Healey’s objective of somehow capturing the one-dimensional caricature radio hosts were painting of Patrick, basically accusing him of being in cahoots with a brutal rapist to continue torturing the victim’s family long after the crime. But Healey needed to figure out a way to bring this message to the wider public. She cut an ad harping not only on Patrick’s relationship with LaGuer, but on the fact that he dissembled when first confronted about it. This had the double effect of energizing her supporters while at the same time demoralizing Patrick’s constituency, shaken by the obvious discrepancies between his early statements on the case and the letters and financial contributions he later admitted to.

New polling numbers came out showing Healey pulling slightly ahead of Patrick among male voters, but still trailing significantly among women. That is when she made the fateful mistake of seizing on a Patrick’s on-camera statement that LaGuer “is eloquent and he is thoughtful.” Healey made it the centerpiece of her now-famous ad in which a woman enters a dimly lit parking garage. The tag line was, “Have you ever heard a woman compliment a rapist? Deval Patrick—he should be ashamed, not governor.”

Calculated to work the same magic with women voters as the incessant harping on the LaGuer connection seemed to be having among men, the ad backfired. It coincided with a report in the Boston Herald , widely assumed to be a Healey plant, insinuating that Patrick helped shield his brother-in-law from registering as a sex offender, prompting Patrick to give an impassioned statement ripping into what he called the “pathetic” tactics of his opponent, adding, “This is the politics of Kerry Healey and it disgusts me and it has to stop.” The bleeding for Patrick started to abate and the following week new polls came out showing him regaining a comfortable lead and more than half the voters having an unfavorable view of the Republican.

Healey opportunistically hitched her wagon to a powder keg and it blew up in her face. But she isn’t the first person to have been burned by coming in contact with the case of Commonwealth v. Benjamin LaGuer. The reason is that from the day LaGuer was arrested on July 15, 1983, it has represented a gross miscarriage of justice perpetuated by people with agendas that were less about getting at the truth than about winning and losing. At any time in the last 23 years Conte, the district attorney, could have taken a fresh look at new evidence that continued to emerge. Instead, he continually dug in his heels, allowing a festering injustice to build to explosive proportions.

That might explain why the press never bought into Healey’s strategy of using LaGuer as a frightful caricature. The Boston Herald turned to John Silber to counter the initial savaging of Patrick for writing on LaGuer’s behalf. It then ran a Sunday edition headline that screamed: “Healey Is a Hypocrite.” The lieutenant governor failed to engender credibility during four years in office and now she was coming off as shrill, shallow and disingenuous. Too many people in Boston’s newsrooms understood that the case against LaGuer wasn’t as clean as Healey made it out to be.

Those familiar with the police reports and hospital records know that LaGuer’s arrest was predicated on a lie. The lead detective, Ronald Carignan, settled on LaGuer based on his race and ethnicity and the circumstance that he happened to be living next door when the crime occurred. Once Carignan became fixated on LaGuer, the victim, who steadfastly denied knowing who it was who attacked her, corroborated his suspicions after her daughter Elizabeth Barry, according to the police report, “told her mother that she was going to stay in the apt (sic) and put herself up as bait” in order to entice the perpetrator to return.

From there the lies kept multiplying. Three weeks after the arrest Carignan, who has since died, told the grand jury which indicted LaGuer that the victim, who had a history of mental illness, identified him by name, something she strenuously denied under oath at the trial. Carignan even suggested that the crime had occurred in LaGuer’s apartment and said the victim was unable to appear at the hearing, neglecting to mention that she had already been discharged from the hospital.

The whole history of the case is rife with misrepresentations, distortions and missed opportunities (See: “LaGuer Reconsidered”, Valley Advocate , August 17, 2006). One that stands out is that at trial Carignan testified that he recovered only one partial fingerprint from the scene of a crime that was said to have played itself out over eight hours. Eighteen years later, in November, 2001, the report emerged showing that in fact four full fingerprints were retrieved from the base of the trimline telephone, the cord of which was used to bind the victim’s wrists, and that they belonged to someone other than LaGuer. Those prints, which the commonwealth has since lost or destroyed, are the basis of the current challenge to the verdict.

If Patrick spoke to his advisors familiar with Worcester politics, perhaps including Worcester Mayor Tim Murray, when Leominster Mayor Dean Mazzarella started nipping at his heals, they would probably have said that the LaGuer case has been a radioactive part of the county’s political scene for more than two decades. Patrick erred badly when he tried to make the questions about his involvement go away by immediately caving in to Mazzarella’s demands for a public repudiation of LaGuer. He further damaged his campaign by claiming that he had done nothing more than issue a statement on the order of 15 years ago. Patrick should have put the full extent of his involvement with the case on the table right away, rather than allow himself to be caught flatfooted by the drip, drip, drip of new revelations.

Healey, in latching onto what she obviously saw as an opportunity for political gain, chose to paint an entirely one-dimensional picture of LaGuer as a vicious animal—a word used over and over on the talk radio circuit— condemned not only by a 1984 jury but again by a 2002 DNA test. LaGuer became a seemingly legitimate target for a fusillade of hateful invective taken to a fever pitch. She cast him as a repository for the loathing of an entire state. Even uttering the words “eloquent” and “thoughtful” in connection with LaGuer was an act worthy of condemnation. The raw emotional impact of Healey’s divisive strategy was intoxicating. But a simple Internet search would have showed her that LaGuer’s case is currently in the courts and that four highly reputable experts have concluded that the DNA result is easily attributable to contamination. One of them, Harvard geneticist Daniel Hartl, went so far as to write, “There is, in my opinion, ample reason for a full inquiry into this case, and I hope that the Supreme Judicial Court of the Commonwealth of Massachusetts will agree.”

In the end, their handling of the LaGuer case in the heat of a political campaign didn’t do much for either candidate’s reputation. Ironically, the person who may have benefited the most from having been turned into a household name is Benjamin LaGuer himself. For 23 years his constant plea has been for people to look closely at the evidence and to concentrate on the facts. His case is in the Supreme Judicial Court, and oral arguments will likely be in January. If the one-dimensional image of him as a craven sociopath influences the outcome, Healey will have done LaGuer a tremendous disservice. If, on the other hand, his notoriety prompts the public, the press and the judicial system to take the time to study the history of the case and the issues currently at stake, the events of the last few weeks can only help his cause.

Amherst-based journalist Eric Goldscheider edits www.BenLaGuer.com

October 16, 2006

Deval Patrick for governor

Editorial, lawyers weekly

During the 34-year history of Lawyers Weekly, the paper has never endorsed a candidate for elected office. This practice was borne out of the notion that the political, or societal, issues that dominate races typically outweigh issues that are of distinct interest to lawyers.

But the race for governor in Massachusetts in 2006 is suddenly very much about what it means to be a lawyer.

On the one hand, we have Democratic nominee Deval Patrick, whose stated policies on judicial independence and appointment of judges (among other issues) reflect a genuine understanding of the legal system.

Conversely, Republican nominee Kerry Healey has launched a chilling assault on the practice of law.

Healey is running a television ad that takes Patrick to task for his 1985 representation of a defendant accused of murdering a police officer — an ad that borders on the bizarre in its reasoning.

"While lawyers have a right to defend admitted cop killers, do we really want one as our governor?" the ad asks.

Last week Healey added an ad that references Patrick's one-time support of convicted rapist Benjamin LaGuer.

"What kind of person defends a brutal rapist?" the ad asks.

With those misguided questions, Healey has insulted an entire profession. Here's hoping she does not get away with it.

What is Healey's message? That criminal-defense attorneys somehow should be associated with, or blamed for, the actions of their clients? That protecting important constitutional rights is somehow a seedy business?

Healey has resorted to the worst form of pandering, openly inviting voters to think of Patrick as someone who associates with criminals. Her finger-pointing has a flavor of McCarthyism, suggesting that anyone who has spent time in the criminal-defense arena should be identified, called out and avoided.

The lieutenant governor proclaims herself a criminal-justice candidate who is tough on crime. Yet nearly everyone associated with the criminal-justice system, be they defense attorneys, prosecutors, police officers or otherwise, understand that the Constitution guarantees the right-to-counsel, and the right to a zealous advocate. Healey no doubt understands this as well, but conveniently ignores it as she paints Patrick a villain.

Gov. Mitt Romney knows that diminishing the work of attorneys often makes for good politics. He rarely hesitates to criticize lawyers — or judges — if it suits his agenda. But even Romney has never sunk this low, to this crass sort of demagoguery. Healey has become the bully in the schoolyard, poking fun at the overweight children. Look, he's a lawyer. He must be a second-class citizen.

Deval Patrick, meanwhile, has quietly made it known that he appreciates the key components of the legal system.

He favors giving judicial administrators more control over their budgets and pay increases for lawyers who do work for the state, including prosecutors.

Patrick says he would devote much attention to selecting judges, returning power to the Judicial Nominating Commission. And the former civil-rights attorney has suggested that he will be careful before criticizing a judge's decision.

"Judges don't go looking for hard decisions," he has said.

As to the LaGuer matter, Patrick missed an opportunity with a clumsy, disjointed explanation of the matter.

Patrick could have simply stated that any efforts he made in helping LaGuer obtain a DNA test were in the pursuit of truth. As former Suffolk County District Attorney Ralph Martin so eloquently put it in an Oct. 8 Boston Globe op-ed article, "I never thought that serving the ideals of the Constitution made you soft or tough on crime. ... Respecting the Constitution doesn't make you soft or tough — it only makes you just and fair."

One need not be defined by one's profession, of course, and lawyers will have other important matters (i.e., education, taxes) on their minds when they go to the polls on Nov. 7.

But attorneys can rest assured that a vote for Deval Patrick guarantees an appreciation for many of the ideals that lawyers deem important — while a vote against Kerry Healey sends a message that lawyers won't tolerate her unforgivable cheap shots.

Do we really want someone who defends accused criminals as our governor? President John Adams, author of the Constitution that Healey swore to uphold as lieutenant governor, defended the accused killers in the Boston Massacre trial. Do you think Adams would have been qualified to be our governor?

October 11, 2006

The Phoenix

The Massachusetts Supreme Judicial Court (SJC) established a long time ago that while those accused of a crime in this state are not entitled to a perfect trial, they should receive at least a fair trial.

That inconvenient fact of legal life has been shamefully lost on Republican Lieutenant Governor Kerry Healey in her smarmy and mendacious attempt to smear Deval Patrick, her Democratic rival for governor, as being soft on crime by virtue of his real — but hardly crusading — association with the case of convicted rapist Benjamin LaGuer.

Twenty-two years after LaGuer was convicted, the question of whether he received a fair trial is still very much alive. In just two months the SJC will hear oral arguments that could result in a new hearing. The state’s highest court has agreed to review LaGuer’s claim that fingerprint evidence, hidden from him by police at the time of his trial, could clear him of the crime. The court grants this form of judicial review to only four percent of the cases seeking a place on its docket. Does this relatively rare occurrence mean that LaGuer is innocent? No. But it does mean that people have real reason to question whether LaGuer received a fair trial that produced an accurate result.

If a new trial results, it will be yet another black mark against the quality of justice in Massachusetts. In Suffolk County alone, ten convictions of serious, violent crimes — including rape and murder — have been overturned in the last decade. Included in that sorry tally is the 2004 exoneration of Stephan Cowans, who was wrongfully found to have shot a Boston Police officer. Not quite two weeks ago, a federal judge found that another man would have been entitled to more than $13 million for his 1987 wrongful conviction for rape, had he chosen to accept a settlement.

Are we to visit the horror that families of victims suffer on innocent families as well? Does that provide society with any benefit? Healey appears to think so. In her book, any conviction will suffice, even a bad or a wrongful one.

Healey’s breezy tough-gal position is designed to obscure the reality that the Romney-Healey administration has made it more difficult for cities and towns to police themselves due to the budget cuts it has sponsored. Her sleazy attacks on Patrick divert attention from the deafening silence she assumed when murder rates in Boston hit a ten-year high. And her deceit and deception allows her to wallow in hollow headlines that credit her with sponsoring a sex-offender registry, while allowing her boss, Romney, to gut funding for it.

When it comes to public safety, Healey is all talk and no action. So it should come as no surprise that she is indifferent to any larger issues of justice. As for common decency, that’s something that Healey, who is behind in the polls, is willing to shelve if she can make political hay with indecent attacks.

Healey’s indecencies, however, do not excuse the sorry performance of Deval Patrick. The Republican-friendly Boston Herald reported on Patrick’s ties to the LaGuer camp in August, so the candidate should have been better prepared and expected such an attack. If there is one thing about the Republicans, it is that they are predictable — and often predictably vile. In this case, they proved true to form. Those in the Patrick campaign responsible for bungling it appear to have been supplanted by more savvy and experienced operators.

But that doesn’t excuse Patrick for trying to “get ahead’ of the story by saying he wouldn’t consider pardoning LaGuer if elected. We’re not suggesting that LaGuer should be pardoned. But we are saying that the LaGuer case is still an open issue and, as such, is still very much in play. A potential governor may serve himself, but not justice, by committing himself to a political expedient that could be reasonably at odds with an important judicial finding.

Before the SJC is the issue of whether the prosecution withheld fingerprint evidence that might have either cleared LaGuer or supported his defense’s theory that the crime may have been committed by another resident in the victim’s building.

There is already plausible evidence that one juror who voted to convict LaGuer was prejudiced against “the goddamned spic.” And the defense team’s contention that the police or the now-disgraced state criminal laboratory either intentionally manipulated or unintentionally botched the handling of the DNA sample that reiterated LaGuer’s conviction also has potential merit.

The question of whether or not LaGuer received a fair trial is a very real one. And that means that the question of whether he committed the crime is still open to doubt. What is not open to doubt is that Patrick failed to meet the high standards of public conduct he appears to be setting for himself. But if Patrick’s failing is a disappointment, Healey’s conduct is a disgrace.

October 11, 2006 

LaGuer story still in limelight
Healey uses rape case as political weaponry

Clive McFarlane, T&G STAFF

October 6, 2006

Case campaign fallout embraced by LaGuer

By Matthew Bruun TELEGRAM & GAZETTE STAFF

Benjamin LaGuer has long characterized his bid to get out of jail as a quest for vindication. His goal, he has often said, is to clear his name.

It is a theme he recalled yesterday as gubernatorial candidate Deval L. Patrick’s past support for him continued to reverberate in the campaign.

“I’ve never asked anybody, none of those people, to say I’m innocent,” Mr. LaGuer said in a telephone interview from the Souza-Baranowski Correctional Center on the Lancaster-Shirley line, where he is serving a life sentence. “I’ve asked them to please open those files in (Worcester District Attorney) John Conte’s office.”

Mr. LaGuer has been a frequent critic of the outgoing Worcester district attorney, arguing that malfeasance by police and prosecutors deprived him of his right to a fair trial.

Mr. Conte and his office, meanwhile, have challenged Mr. LaGuer’s version of events and said his guilt has been proven to a mathematical certainty.

Mr. LaGuer said he welcomed the attention that Mr. Patrick’s previous support had lent his case.

“I think anything that draws attention to this miscarriage is a good thing,” Mr. LaGuer said.

When the DNA analysis Mr. LaGuer sought further implicated him in 2002, Mr. LaGuer said police had mishandled the evidence and illegally took items from his apartment after his arrest.

Mr. Conte will be out of the office in January, when Democrat Joseph D. Early Jr., who faces no formal opposition on the ballot next month, is poised to take over.

In an interview yesterday, Mr. Early said he was familiar with Mr. LaGuer’s case and had been following it in the news in recent days.

He declined to speculate on whether he felt Mr. LaGuer had received a fair trial, noting the issue was going to be addressed by the Supreme Judicial Court, which is expected to hear oral arguments in December.

“We’ll deal with it when we get the results back,” Mr. Early said.

Mr. LaGuer has maintained high-profile supporters, including former Boston University president John R. Silber, who was recuperating from recent surgery yesterday and unavailable for comment, according to his office.

But Mr. Silber, who contributed thousands of dollars to the DNA testing, said Mr. LaGuer did not receive a fair trial and deserves to be released from prison.

A more recent arrival to Mr. LaGuer’s band of supporters is state Rep. Ellen Story, D-Amherst.

Mr. LaGuer came to her attention through one of her constituents, a freelance journalist who maintains a Web site dealing with the case.

“I don’t know whether he is innocent or not. How could I possibly know that?” Ms. Story said in an interview yesterday. “I do know there were enough irregularities in this case that it seems to me to be reasonable to give him a second trial.”

And that, she continued, is what the Supreme Judicial Court will decide in the coming months.

Ms. Story requested independent reviews of the DNA results from a number of experts. Most of the replies have questioned the DNA laboratory findings that implicated Mr. LaGuer, she said.

One of the respondents was scientist Daniel L. Hartl at Harvard University.

“The evidence in this case was collected at a time when standards for the handling of material for DNA typing was poor or nonexistent,” Mr. Hartl wrote to Ms. Story in a letter dated Aug. 21.

He also questioned the testing methods employed by the California laboratory Mr. LaGuer had hired to perform the analysis, arguing the potential was there for contamination, according to the letter.

“There is, in my opinion, ample reason for a full inquiry into this case, and I hope that the Supreme Judicial Court of the commonwealth of Massachusetts will agree,” Mr. Hartl wrote.

Ms. Story said she did receive one reply from a DNA expert who supported the findings that implicated Mr. LaGuer, but said most of the respondents agreed there were issues worth exploring in the case.

“It’s interesting to me it’s become a political football,” Ms. Story said. “It is, in fact, pending before the Supreme Judicial Court, so whatever any of us think about the case at this point is irrelevant.”

She said she has been supporting Mr. Patrick’s gubernatorial bid for more than a year, and said his stance on the LaGuer case shouldn’t be held against him.

“I think that it is consistent with his philosophy that if he felt there was a case of injustice that he would speak up about it,” she said.

And Mr. Patrick was in good company when he backed Mr. LaGuer, she added.“(Mr. LaGuer) deserves a second chance,” Ms. Story said. “No one was saying he’s innocent. We’re saying ‘Let’s try it again.’ ”

The victim’s family has expressed outrage at Mr. Patrick’s support for the case. The victim’s son-in-law, Robert Barry, declined further comment on the issue yesterday afternoon beyond echoing recent public comments that Mr. Patrick was wrong to support Mr. LaGuer.

Mr. LaGuer said the candidates could handle the political fallout from the recent days’ hoopla.

“He’s a big boy and Kerry Healey is a big girl, and she has cop killers that are cleaning up at the Statehouse,” Mr. LaGuer said, referring to a report in the Boston Herald that a violent criminal had been given light duty on Beacon Hill.

Mike Elfland of the Telegram & Gazette staff contributed to this report.

October 6, 2006

Patrick, Healey work LaGuer angle

By John J. Monahan TELEGRAM & GAZETTE STAFF
jmonahan@telegram.com

WORCESTER— Democratic candidate for governor Deval L. Patrick yesterday addressed in detail the controversy that has erupted over his past assistance for convicted Leominster rapist Benjamin LaGuer. He also criticized his Republican opponent, Kerry Healey, for politicizing the case and putting the family of the victim through a rehashing of their painful memories of what he called a “horrific crime.”

Mr. Patrick spent more than a half hour at a press conference at the College of the Holy Cross answering questions about letters he wrote in 1998 and 2000 recommending Mr. LaGuer’s parole.

He said he still did not recall how much he donated in 2001 to help pay for DNA tests that failed to vindicate Mr. LaGuer in 2002, and had no bank record of it. But, he said he did not regret making the donation. He also apologized for not delivering a “clear set of facts” regarding his involvement with Mr. LaGuer when asked about it by reporters last week and during the last two days since his donation was disclosed.

If elected, Mr. Patrick said he would recuse himself from any action in the LaGuer case and would not pardon him or recommend parole. He said the 2002 DNA results implicating Mr. LaGuer further in the violent rape “went a long way for me in laying this ultimately to rest.”

He said he spoke to the family of the victim in the case yesterday morning and apologized to them “that this issue has become a campaign issue” and he “gave them the opportunity to give me an earful.”

He also defended his work as a lawyer for the NAACP in overturning a death sentence in the case of Carl Ray Songer, who shot and killed a Florida highway patrolman in 1972, saying the federal courts found imposition of the death penalty in that case was unconstitutional.

He complained that an attack ad the Healey campaign has launched over the Florida case played on the public’s fears and accused her of taking a “page out of the Republican playbook” to distract voters from her “record of failed leadership on the bread-and-butter pocketbook issues people are worried about.”

But the political battles over his involvement in the Songer and LaGuer cases continued in force throughout the day.

Ms. Healey brought Thomas Hogan, the Florida prosecutor in the Songer case, to Boston to criticize Mr. Patrick for his role in preventing Mr. Songer from being executed 20 years ago.

“In my career, I prosecuted numerous capital murder cases. No one deserved the death penalty more than Carl Ray Songer. Unfortunately, Mr. Patrick came in and worked to get his sentence reduced on a technicality,” Mr. Hogan said in a prepared statement.

He also read an emotional statement from Alicia Hayes, the daughter of the highway patrolman who was killed, who said Mr. Songer “escaped the death warrant not once, but three times with the help of Deval Patrick, who pleaded in his favor that the sentence was disproportionate, excessive and inappropriate, along with cruel and unusual punishment for a person who had found religion and undergone change while in prison.”

“This man running for governor believes in finding an excuse for killing our law enforcement officers no matter where they are, Florida or Massachusetts,” she wrote.

Mr. Patrick said in that case the death penalty was not overturned on a technicality.

“The Supreme Court said at the time that a death penalty is not constitutional unless a whole range of factors are considered by the jury … Those are constitutional questions. That is not a technicality. That’s not niceties. Those were constitutional rules, and in this case the court of appeals said the death penalty was unconstitutional,” Mr. Patrick said.

Ms. Healey also complained at campaign stops yesterday that Mr. Patrick was not fully forthcoming about his support for Mr. LaGuer and that he acknowledged his role only after the parole letters and a letter acknowledging his donation for the DNA testing were found by the press.

Mr. Patrick said he was only asked about the donation for DNA testing Wednesday morning and did not remember it at the time. Yesterday he said he could not find bank records of the donation; he said he and his wife made more than $100,000 in donations in 2001 and did not remember the details. He said the letter from Mr. LaGuer acknowledging the donation would have been received by him when he worked for Coca-Cola, and that he had other matters going on, so that he paid little attention to it.

Meanwhile, a group of former and current prosecutors met in Boston to defend Mr. Patrick yesterday, saying that the attacks against him by Ms. Healey were unjustified.

“This is Karl Rove’s playbook introduced to Massachusetts,” said former Attorney General Scott Harshbarger, adding “We’re not going to let Kerry Healey Swift Boat Deval Patrick.”

Mr. Harshbarger compared the Healey campaign ad to the Willie Horton ads run against Michael S. Dukakis in the 1998 presidential elections over the furlough of a killer who later raped a woman. “It is as outrageous today as it was 20 years ago,” he said.

Middlesex district attorney and candidate for attorney general Martha Coakley said she, too, had defended murderers before she was a prosecutor, and that the judicial system relies on advocates for both the prosecution and defense. Contrary to claims by the Healey campaign, she said Mr. Songer is not due for parole in 2009, and would not be eligible for parole until he is about 144 years old.

Ms. Coakley also defended Mr. Patrick’s donation for DNA testing, asking, “What are the alternatives when you have a chance for scientific evidence?” to prove guilt or innocence. Defense of people who are “wrongly convicted,” she said, is an important part of the legal system.

Mark E. Robinson, a Republican and former federal prosecutor and chief of staff to Gov. William F. Weld who served on the board of the NAACP Legal Fund at the time Mr. Patrick worked for the group, said it was only normal for Mr. Patrick to be involved in cases involving heinous crimes, because they were assigned cases involving the death penalty.

Mr. Patrick said when he was first asked about the LaGuer case last week, he “hadn’t thought about it in years” and wished he had researched it before telling reporters that he did not remember the donation, and having his campaign staff say his involvement was 10 and 15 years ago, instead of more recently.

“The point is, we screwed up in terms of how we have handled doing our homework before we answered questions about this issue. No question about that,” Mr. Patrick said.

Still, he said he remained proud of his work on death penalty cases. He cited his first death penalty case, in which he said a man about to be put to death was granted a stay, and later his conviction was overturned when files were found containing eyewitness accounts that another man committed the murder.

Mr. Patrick cited two reasons for recommending Mr. LaGuer for parole in 1998 and 2000.

“There were very, very serious questions raised about bigotry in the jury room. They don’t negate guilt, but they do address the question of fundamental fairness of the trial,” he said. Jurors reported during the trial that one juror referred to Mr. LaGuer as a “spic” who was “guilty just sitting there,” and other racial remarks were made about the defendant.

Mr. Patrick said the other reason was that he was asked to get involved by “several prominent people whose judgment I trust.”

He said he took exception to Ms. Healey calling him soft on crime.

“Not only have I been a prosecutor, I have myself lived in crime-ridden areas on the South Side of Chicago and been the victim of crime. I don’t need to be lectured to by anybody about the impact of violent crime,” he said.  

August 18, 2006

Former FBI agent and investigative attorney Richard Slowe analyzed the police work in the Benjamin LaGuer case and found that it was severely lacking.

In June, in the shooting case of Massachusetts State Trooper Donald C. Gray who after a criminal inquest was found by the Honorable Judge Robert V Greco to have acted with conduct that amounted to “criminal negligence” that would have supported a manslaughter charge in the death of Preston Johnson. Trooper Gray did not face criminal charges when a Grand Jury presentation orchestrated by John Conte's Assistant District Attorney's resulted in a no bill.

The case of Rev Raymond Messier, of the Worcester Dioceses also had a no bill returned after the Department of Social Service "supported" Rev Messier on charges of child sexual abuse. Not one Catholic Priest was indicted by the so called 2002 Grand Jury subpoena issued by District Attorney John J. Conte

August 17, 2006

LaGuer Reconsidered

For 23 years, Ben LaGuer has maintained his innocence. That's only kept him in jail longer on a rape conviction. What now?

Valley advocate by Eric Goldscheider

On a warm and rainy October evening in 1980, three Puerto Rican teens were ambling down a side street in Leominster, having just left the YMCA. A cop called them over to ask about a burglary in the neighborhood. It seems that the home of one Kent Carluccio on Central Street had been broken into. Jose, David and Ben were not involved and they didn't know anything about it. Names were taken and, as it turned out, a notation was made on an index card kept on file at the police station that at least one of the youths, Benjamin LaGuer, was a "possible suspect." No one thought much of LaGuer's first brush with the law. Not that it was much of a brush. A 17-year old responding to a police officer's inquiries is hardly the stuff of criminal records. LaGuer's primary infraction was probably just being from Puerto Rico and being on the residential blocks that envelop the Leominster business district.

LaGuer was a wide-eyed youth with a swagger that belied his stutter and his station in life as the son of a merchant marine sailor who had labored on summer road crews paving highways in and around the Bronx. His father, Luperto, retired to the gritty north central Massachusetts city known for its plastics industry to be near his daughters from an earlier marriage. One of them, Lisa Bromes, recalls LaGuer as "an outgoing and popular kid." He came up from New York when he was 15. He and his friends sometimes worked a graveyard shift in a plastic hangar factory. For a time he was president of the Latino student association at Leominster High.

Still finding his way in the world, LaGuer dropped out of school a month after the trivial and forgettable street corner encounter with the police. He joined the Army like his father before him, and was stationed in Germany.

Three and a half years later, in June, LaGuer returned to Leominster, once again a civilian. On the night of Tuesday, July 12, 1983 he slept alone in his father's one-bedroom apartment in a converted mill complex. Luperto LaGuer was visiting Puerto Rico.

That night somebody brutalized the 59-year-old woman next door. Her life would never be the same. Though she would live another 16 years, Lennice Plante was severely traumatized by the crime in which the assailant purportedly spent eight hours in her apartment raping her over and over again in almost every way imaginable.

By 9 a.m. on Wednesday, July 13, the victim was in the hospital and detective Ronald Carignan, a potbellied and balding former patrolman about to turn 48, was on the case.

LaGuer, according to his own account, showered, dressed and left the building that morning without noticing any police presence. He went over to Fitchburg State College, where he hoped to use his GI Bill to enroll in computer classes. He spent that night at the home of his sister Aida, whom he had lived with before enlisting.

On Friday, July 15 he was back at his father's apartment when a knock came at the door. Carignan was there and asked if LaGuer could answer some questions about the horrific crime two days earlier. LaGuer voluntarily went to the station, where police told him that they had retrieved fingerprint evidence from the apartment and that they thought the victim could identify the assailant.

At five feet eight and 150 pounds, LaGuer cut anything but an imposing figure, but he has never been one to wilt in the presence of authority. Confident that he had nothing to hide, LaGuer voluntarily allowed Carignan to take a Polaroid head shot and a full set of fingerprints, asking only that the prints be destroyed once any suspicion was cleared up.

LaGuer bided his time in the drab police station through the noon hour, unprepared for what would happen next. Carignan returned, announced that the victim had picked LaGuer out of a photo lineup, placed the barely 20-year-old youth under arrest, hustled him in front of a judge in the courtroom one floor up and shipped him off to the Worcester County Jail.

Six months later, following a three-day trial, a jury of 12 white men took just a few hours to find him guilty. The judge imposed a life sentence.

Now, 23 years later, wizened yet remarkably chipper and with a healthy yet not overwhelming cynicism, LaGuer is still trying to unravel the events of those three days in July, 1983. He steadfastly maintains his innocence, a stance that has cost him years if not decades of freedom if you consider that prosecutors offered a plea bargain under which he could have walked (albeit branded as a sex offender) as early as 1985. He laughs and jokes easily and still refuses to be cowed by authority.

His case is in the Supreme Judicial Court for the second time. His pro bono attorney, James C. Rehnquist, an Amherst College alum and son of the late Chief Justice, is asking that LaGuer's conviction be overturned. His argument is simple: a report emerged in November, 2001, more than 18 years after the fact, showing that police didn't find one partial fingerprint at the crime scene, as Carignan testified at the trial. In fact, they recovered a set of four prints from the base (not the handle!) of the Trimline phone, the cord of which the assailant used to bind Plante's wrists. They compared these prints to LaGuer's with "neg results."

This highly exculpatory piece of evidence was kept from the defense and, by extension, the jury. Equally significant, the police now can't produce the actual fingerprints taken from the phone. So to this day LaGuer has been denied the opportunity to see if they might belong to another man named by private investigators soon after the crime as a "likelier suspect."

Rehnquist is arguing that LaGuer didn't get the fair trial guaranteed by the Constitution and that he must get a new one. But there's one hitch. Four and a half years ago, genetic testing of the evidence revealed a trace amount of male DNA. And that DNA belonged to LaGuer.

Is that overwhelming evidence that the jurors got it right in spite of prosecutorial shenanigans? That's not a question for the judges, according to Rehnquist. They have an obligation to focus on the original trial and not consider evidence developed years later. But it is a question observers of the case are bound to grapple with.

I met Benjamin LaGuer in July, 1991, when I taught a course through the now-defunct UMass Prison Education Program. LaGuer was a student and we would chat after class until it was time for him to clear the building. He was in the medium security prison in Gardner at the time. As I learned more about the case, my doubts about his guilt grew. And then there was a piece of rich if tragic irony.

The complex of two- and three-story red brick buildings surrounded by a double row of chain link fence topped by concertina wire with a dead zone in between had once been a state hospital. Lennice Plante, the victim of the horrible crime LaGuer was doing time for, had once been a patient there. Another thing the jury was never told was that she had a long history of schizophrenia. To think that she had walked these same grounds, more a prisoner of her own brain than of physical barriers! LaGuer had been convicted entirely on the strength of Plante's pointing to him in the court room. Prosecutors introduced no physical evidence whatsoever linking him to the crime. The fingerprints, which could have swayed at least one juror to believe that LaGuer wasn't guilty beyond a reasonable doubt, remained hidden.

By that time, eight years into his life sentence, LaGuer had become a cause celebre in Massachusetts. A juror had come forward to say that bigoted remarks like "Spics screw all day and all night" were raised during deliberations to explain how a 20-year-old kid with no criminal record could have violated a frail old woman in such a gruesome manner. That revelation won LaGuer a hard-fought trip to the Supreme Judicial Court, where the justices ruled in his favor. But instead of throwing out the conviction, they sent the matter back to the trial court for a finding of fact. Ultimately he would lose, but in the mean time a gaggle of journalists, collectively dubbed the "Benji Brigade," were writing about how the case against him was riddled with inconsistencies, unlikely if not impossible sequences of events and poor logic.

Then Boston Magazine writer John Strahinich, who now edits the Sunday Boston Herald, had written two feature-length stories. The first delved into many of the things that didn't add up--for example, that the assailant was said to be naked when he entered Plante's apartment (consistent with a next door neighbor theory) but that he exited through the window, and that a month later the woman's pocketbook was found three blocks away from the building. In Strahinich's second story, he admitted to having become obsessed by what seemed to be an obvious injustice. He befriended LaGuer and encouraged him to write his own story.

A headline in Worcester Magazine shouted, "Why Can't This Man Get a New Trial?" The Boston Phoenix ran several stories including one under the title "Justice Denied." Even Esquire magazine ran a long feature on the juror racism issue headlined "And the Truth Will Set Him Free, Or Will It?" In all, dozens of articles questioning LaGuer's guilt or the process that convicted him appeared, as well as hours of television coverage, including English and Spanish language documentaries.

But Worcester District Attorney John Conte, a small, somewhat stooped figure whose half-hearted smile as he peers out from under his downwardly slanting hair seems to make a churlish statement about his famously reclusive approach to the job, could never be persuaded to return reporters' telephone calls, much less take a fresh look at the conviction. Before Gov. Michael Dukakis appointed Conte in 1976 to finish an unexpired term, he had been a state senator, and before that a school teacher.

La Guer and Conte, who announced last January that he is retiring after 30 years as DA, had entered into a sick pas de deux. As LaGuer's claims of innocence continued to gain traction, it became increasing unclear who led and who followed. As Strahanich himself commented, LaGuer's talent for attracting media attention cut two ways. It kept his plight in public view, but Conte, who seemed congenitally unable to admit to a mistake, kept digging in his heels.

Part of LaGuer's story is that of a man who became educated and even worldly behind bars. Soon after landing in prison he secured a job in the law library, where he spent countless hours learning procedure to the point where other inmates hired him to draft briefs and motions. LaGuer also took advantage of the college degree programs that were more readily available in the 1980s and "90s than they are now. In MCI Norfolk, to which he was transferred in 1994, Boston University continued its program even after Congress cut off tuition assistance to inmates.

By 1997 LaGuer had received a PEN award for his writing, earned a bachelor's degree magna cum laude, and won the admiration and even friendship of several professors.

In 1998, 15 years after his arrest, LaGuer was for the first time eligible for parole. He spoke unquaveringly into the microphone in a packed hearing room. Instead of serving up the usual fare in which prisoners muster all the contrition they can and promise to be better citizens, LaGuer continued to proclaim his innocence. The board would have none of it and gave him a five year "set back," the maximum amount of time before he'd be entitled to another hearing.

This raised the dander of an unlikely ally who in the eight years since then has proven to be one of LaGuer's most ardent champions. Boston University Chancellor John Silber, by all accounts a cantankerous social conservative whom some Democrats blame for losing the governorship to the Republicans by running to the right of William Weld in his bid to succeed Dukakis, had heard of LaGuer's academic achievements and was in correspondence with the inmate. Silber was incensed that the parole board refused to acknowledge the man LaGuer had become, instea