April 8, 2007

New LaGuer trial supported
DeMartino raises question of ID

By Matthew Bruun TELEGRAM & GAZETTE STAFF

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.

Mr. LaGuer’s eighth request for a new trial was denied last month by the Supreme Judicial Court. In his high-profile quest for exoneration, he sought DNA testing of crime scene evidence, but since the results further implicated him five years ago, he has sought to discredit the findings of the expert he hired.

Mrs. DeMartino worked as a mental health aide at a residential treatment program in Fitchburg in 1983, and was assigned to the woman who was raped and beaten in her Leominster apartment on July 12, 1983. The woman, who died in 1999 at age 75, identified Mr. LaGuer, her former neighbor in the apartment complex, as her attacker.

That identification was central to the prosecution’s case against Mr. LaGuer, who has spent almost 24 years maintaining his innocence. The victim’s credibility has been questioned by Mr. LaGuer’s supporters, who say the woman’s prior psychiatric history discounted her identification.

The judge who presided at the trial ruled her psychiatric history was not relevant to her identification of Mr. LaGuer, who is of Hispanic descent, as the man who raped and beat her over eight hours. Members of the victim’s family and jurors interviewed since the trial have said the woman was a compelling witness on the stand.

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.

The article names the victim and includes a picture of her taken after the assault.

Timothy J. Connolly, spokesman for Worcester District Attorney Joseph D. Early Jr., said Mr. Early had no comment on the matters discussed in the Advocate article, but was bothered that the victim was named and that a post-assault photograph of her was published with the report.

Valley Advocate editor Tom Vannah said the victim’s name has been published several times before and that the photograph was taken from a television program broadcast on PBS.

“I thought it was important in terms of balancing the story, to emphasize the brutality of the beating,” Mr. Vannah said Friday. He said prosecutors should show more interest in the substance of Mrs. DeMartino’s statements, which he said question the validity of an eyewitness identification.

In the article, Mrs. DeMartino said she had been working at the halfway house for former mental patients for years before the victim arrived in the aftermath of the rape.

Mrs. DeMartino, who has retired from her career as a social worker, said in an interview last week that her loyalty in this case is to the victim and that she was upset that the article had been published without her consent. But she did not deny the statements attributed to her.

Mr. Goldscheider, whose longstanding interest in the case includes maintaining a Web site on the subject, said his research leads him to believe Mr. LaGuer is innocent of the crime.

“I want to thank her (Mrs. DeMartino) for her courage for being willing to speak at this time,” he said last week.

Mrs. DeMartino said Thursday she agreed to speak with Mr. Goldscheider after reading a column last fall in the Telegram & Gazette by Clive McFarlane that enumerated some of the issues that have been raised over the past 23 years about the fairness of Mr. LaGuer’s trial. The column was written as the LaGuer case became a flashpoint in the gubernatorial race because of future Gov. Deval L. Patrick’s past statements of support for the convicted man.

Among the issues cited was a potentially exculpatory fingerprint report that was withheld from the defense for 18 years and questions about the validity of testimony offered by the lead Leominster police detective in the case.

Mrs. DeMartino said Thursday that her role as caregiver to the victim was never a secret, but that she had never spoken out before because she was confident police had found the right person. Seeing the issues raised in the column, however, gave her pause.

The state Supreme Judicial Court ruled March 23 that the fingerprint report, which stated that four prints taken from a key piece of evidence in the victim’s apartment did not match Mr. LaGuer, was not itself grounds to grant Mr. LaGuer a new trial.

Mr. LaGuer sought DNA testing of crime scene evidence, but the results, published five years ago, further implicated him. He has since sought to discredit those results, claiming contamination compromised their integrity. Mr. Patrick distanced himself from the case after being informed of the DNA results, he said during the campaign. The defense-hired DNA expert in March 2002 said Mr. LaGuer was the offender.

Mrs. DeMartino said if a new trial would put to rest any questions still surrounding the case, she would welcome it. While she worked as the victim’s caregiver for months, she visited her for years later, last seeing her soon before the woman’s death in 1999, according to the Valley Advocate account.

The person who raped her friend deserves to be punished, Mrs. DeMartino said Thursday, and her friend should be able to rest in peace.

“I just want it finished,” she said.

Robert Barry, the victim’s son-in-law, said last week he had no comment on Mrs. DeMartino’s interview. Mr. Barry was recently sworn in as a member of the Criminal History Systems Board, a post to which he was nominated by former Gov. Mitt Romney to represent the interest of victims of crime.

In the Valley Advocate article, Mrs. DeMartino is quoted as saying she would accompany the victim on outings where she would identify random black or Hispanic men as her rapist.

“If I went out in public with her,” Mrs. DeMartino was quoted as saying, “everybody she saw who was either Spanish or black, she would be saying, ‘that’s who did it, that’s who did it,’ and of course it wasn’t, because basically they were just people in the street. She was very paranoid at that time about everybody … she hated anybody dark-skinned. She would absolutely get horribly frightened.”

She was also quoted as saying the victim had befriended a young man whose mother lived in the same apartment building, and that she would sometimes let that person sleep on her couch if he had been locked out by his mother.

Mr. LaGuer’s supporters have long said police ignored a “likelier suspect” who had lived with his mother in the same apartment complex as the victim and who, according to a private investigator hired by the defense, had been hospitalized for sexual misconduct. The so-called “likelier suspect” was also of Latino descent and stood about the same height and had a similar build to Mr. LaGuer.

In a telephone interview from the Souza-Baranowski Correctional Center on the Shirley-Lancaster line, Mr. LaGuer recently said Mrs. DeMartino’s statements represent newly discovered evidence and that he will seek to use it as the basis of a motion — his ninth — for a new trial.

March 25, 2007

LaGuer in good spirits after new trial denied

By Matthew Bruun TELEGRAM & GAZETTE STAFF

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, 43, who was sentenced to life in prison, made his eighth request for a new trial on the basis that a potentially exculpatory fingerprint report had been withheld from his defense for 18 years. That report, which said four fingerprints taken from a key piece of evidence in the case did not match Mr. LaGuer’s prints, was uncovered in a storage facility in late 2001.

The state’s highest court ruled Friday that the evidence would not have swayed a jury, as there was no evidence the fingerprints — which have since been lost — belonged to the person responsible for the crime.

The victim, who died in 1999, had identified Mr. LaGuer in court as her attacker. He has said he was the victim of a mistaken cross-racial identification. The victim was white, and Mr. LaGuer is of Puerto Rican descent.

Among the many high-profile supporters Mr. LaGuer amassed after his trial was future governor Deval L. Patrick, who wrote to the Parole Board on his behalf in 1998 and 2000 and helped pay for DNA testing that supporters hoped would clear him.

The DNA results, published five years ago last week, further implicated Mr. LaGuer, who has since tried to discredit the results.

Mr. Patrick, whose past support for Mr. LaGuer became a heated issue in the gubernatorial race last fall, has said the DNA proved that justice had been done in the case.

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 24, 2007

LaGuer’s 8th bid for new trial is denied

By Matthew Bruun TELEGRAM & GAZETTE STAFF

The state’s highest court has rejected Benjamin LaGuer’s latest bid for a new trial, finding that a potentially exculpatory fingerprint report that was not shared with the defense for almost two decades did not deprive him of a fair trial in 1984.

The Supreme Judicial Court in Boston issued its unanimous ruling yesterday morning.

Mr. LaGuer, 43, has maintained his innocence since his arrest on July 15, 1983, two days after his then-59-year-old neighbor was found beaten and bloody in her Leominster apartment. The victim, who died in 1999, identified Mr. LaGuer in court as her attacker.

Mr. LaGuer sought DNA testing in the case several years ago, paid for with funds donated by supporters including now-Gov. Deval L. Patrick, whose support for Mr. LaGuer became a lightning rod in the gubernatorial race last year.

The DNA results, published five years ago this week, further implicated Mr. LaGuer. Now an inmate at the Souza-Baranowski Correctional Center in Shirley, Mr. LaGuer has spent the last five years seeking to discredit the results.

Mr. Patrick, who had also written to the Parole Board on Mr. LaGuer’s behalf, said last fall he no longer supported Mr. LaGuer because of the DNA results.

The DNA issue was raised several times during oral arguments before the SJC on Jan. 4 — hours before the governor’s inauguration — but defense lawyer James C. Rehnquist said the validity of the results would be explored during the new trial.

Worcester District Attorney Joseph D. Early Jr., who was sworn in the day before the SJC heard oral arguments in Mr. LaGuer’s case, issued a statement late yesterday on the ruling.

“The office of the District Attorney is satisfied that this conviction has once again been affirmed in a unanimous decision by the state’s highest court,” Mr. Early said in the statement. “For more than 20 years the victim’s family has been a part of this long and difficult process. I hope that today’s decision gives them some measure of closure to this horrific crime.”

Mr. LaGuer’s eighth bid for a new trial focused on a fingerprint report that was not shared with the defense until 18 years after the crime. A police report described a set of fingerprints taken from the victim’s telephone that did not match Mr. LaGuer. At trial in 1984, Leominster police Officer Ronald Carignan, the lead detective investigating the case, said he knew of only a single partial fingerprint from which no conclusive results could be gleaned.

In the unanimous ruling issued by Justice Judith A. Cowan, the court upheld lower court rulings that the handling of the fingerprint report did not deprive Mr. LaGuer of a fair trial 23 years ago, in part because there was no evidence of when the fingerprints were left or that they belonged to the rapist.

“We conclude that, in the unusual circumstances of this case, the fingerprint evidence that was not produced has not been shown to have any bearing on the defendant’s guilt or innocence, and is consequently not exculpatory as to this defendant,” the ruling states. “What is exculpatory is that the commonwealth could not place the defendant in the victim’s apartment by means of any evidence, including any fingerprints or any other physical evidence.

“At trial, the defense was well aware of that weakness in the prosecution’s case and fully exploited it,” the ruling continues. “For example, in cross-examination, defense counsel asked Detective Carignan, ‘The man was in there eight hours and you didn’t find one print that matched [the defendant’s]?’ to which the response was, ‘No, I did not find any prints to match.’ When asked, ‘Anything come back that matches [the defendant]?’ Detective Carignan answered, ‘Nothing.’ ”

Mr. LaGuer’s trial counsel said in his closing argument in 1984 that no evidence put Mr. LaGuer in the victim’s apartment.

“The point was made to the jury that, despite the assailant’s presence in the apartment for eight hours and his use of the cord from the telephone to bind the victim, no fingerprints of the defendant’s and no other physical evidence linking him to the crime were located,” the justices found.

Justice Martha B. Sosman participated in deliberations on the case prior to her recent death, the ruling states.

Mr. LaGuer’s efforts to discredit the DNA results included a plea to new Worcester District Attorney Early to call for an independent review of the analysis. The appeal included references to the ongoing investigation of DNA handling at the state police crime laboratory. Mr. Early declined to make such a request, stating the matter was before the SJC and the justices would determine whether any future action was needed.

Though several justices raised the issue of the DNA during the oral arguments in January, a footnote on the ruling issued yesterday said it did not factor into their decision to deny a new trial.

“In reaching this conclusion, we have not considered the fact that a deoxyribonucleic acid (DNA) test, performed after the trial at the defendant’s request and conducted by an independent forensic scientist of the defendant’s selection, apparently ‘pointed directly to the defendant’s guilt,’ ” the ruling states.

Mr. LaGuer has appeared several times before the Parole Board but has been denied release from prison in part because he has refused to accept responsibility for the crime. He will be eligible for parole again next year.

One of his previous requests for a new trial concerned allegations of racism on the all-white jury that convicted him. Mr. LaGuer is of Puerto Rican descent. The SJC heard arguments on those allegations in May 1991, ruling Mr. LaGuer was entitled to a new trial if the allegations that were found to be “essentially true.”

The matter was referred back to Superior Court Judge Robert V. Mulkern, who denied the motion that September after a hearing in which the juror who described the alleged racism disavowed portions of his own affidavit. Judge Mulkern said he believed the juror had been lobbied by Mr. LaGuer’s supporters into making the claims.

“His non-acceptance in testimony of several broad and serious allegations attributed to him casts serious doubt upon the verity of the entire affidavit,” Judge Mulkern wrote in 1991.

Mr. Rehnquist did not return calls for comment on the latest SJC ruling yesterday.

March 23, 2007

SJC upholds LaGuer conviction

By Jonathan Saltzman and Andrew Ryan, Globe Staff

The Supreme Judicial Court today upheld the 24-year-old rape conviction of Benjamin LaGuer, whose case dogged Governor Deval Patrick during his successful campaign last fall.

In a unanimous decision, the court rejected an argument for a new trial based on an 18-year-old State Police report that an appellate attorney said showed that four fingerprints found at the crime scene did not belong to LaGuer.

"We conclude that, in the unusual circumstances of this case, the fingerprint evidence that was not produced has not been shown to have any bearing on the defendant's guilt or innocence, and is consequently not exculpatory as to this defendant," wrote Justice Judith Cowin in the decision for the court.

On the day of Patrick's inauguration in January, attorney James C. Rehnquist lawyer argued before the SJC that LaGuer should get a new trial because the police report showed that investigators recovered four fingerprints from the base of a telephone, the cord of which was used to bind a 59-year-old rape victim in her Leominster apartment complex. Rehnquist said that none of the prints matched LaGuer's and argued that the evidence might have swayed the Worcester County jury if it had heard it.

LaGuer was convicted in 1984 of repeatedly raping and sodomizing the woman over an eight-hour period. Lieutenant Governor Kerry Healey pilloried Patrick during the campaign for twice writing the state Parole Board on LaGuer's behalf over the past decade and for donating $5,000 to help pay for DNA testing.

LaGuer and his advocates, who have included John Silber, former Boston University president, have questioned the validity of the DNA test, which has never been examined by a court. Several forensic specialists contacted by LaGuer say the DNA evidence may have been tainted. LaGuer contends that investigators mixed items from the victim's apartment with underwear seized from his apartment next door.

February 1, 2007

DA won’t seek audit in LaGuer rape case

Early awaits court’s decision on appeal

By Matthew Bruun TELEGRAM & GAZETTE STAFF

WORCESTER— Worcester District Attorney Joseph D. Early Jr. said he will not request a specific audit of the Benjamin LaGuer case as investigators scrutinize the handling of DNA cases at the state police crime laboratory.

Mr. LaGuer, 43, has spent nearly five years trying to discredit the DNA analysis that further implicated him in the 1983 rape and assault of his former neighbor at a Leominster apartment complex. The defense-hired DNA expert said Mr. LaGuer was the offender in March 2002.

The recent suspension of an administrator at the crime lab because of improper handling of DNA cases proves there is a human factor that cannot be discounted, Mr. LaGuer said in a recent interview.

The state lab did not conduct the DNA analysis in his case, but Mr. LaGuer said lab personnel would have been responsible for handling and packaging material en route to testing.

Defense lawyer James C. Rehnquist sent a letter to Mr. Early last month asking him to review the case.

“Given that inadvertent contamination of the samples used for DNA testing may have occurred at any time during the 18-year period between collection of the evidence and testing, it is necessary to have a comprehensive accounting of the evidentiary chain of custody as well as the handling procedures followed by the Commonwealth since the evidence was originally collected in order to properly evaluate the accuracy of the test results,” Mr. Rehnquist wrote.

“It is our belief that an examination into this evidence may help resolve some of the outstanding questions surrounding the DNA testing in this case,” Mr. Rehnquist continued.

Mr. Rehnquist cited an analysis of the case from 2005 by Theodore Kessis of Applied DNA Resources, who said the methodology used in the testing and the fractured chain of custody of the material itself rendered the results suspect.

A spokesman for Mr. Early said the matter is in the hands of the SJC and will remain there until a ruling is issued.

“The conviction in the Benjamin LaGuer case was obtained without DNA testing by the Massachusetts State Police crime laboratory,” spokesman Timothy J. Connolly said.

Unlike other cases being reviewed in the wake of the suspension at the lab, Mr. Connolly continued, Mr. LaGuer’s case was handled by an outside company.

“The issues in Mr. LaGuer’s case have been comprehensively briefed and argued by the parties and the state Supreme Judicial Court will ultimately decide them,” he said. “We are awaiting that decision.”

Mr. LaGuer disputed that assessment this week, noting state police lab personnel inventoried and packaged the material that was analyzed in 2001-2002, so his case had relevance to the ongoing probe.

The appeal to the SJC focuses on whether Mr. LaGuer was denied a fair trial because a potentially exculpatory fingerprint report was not shared with the defense for almost two decades. Lower courts have said Mr. LaGuer was not denied a fair trial and refused to order a new one, but the SJC agreed to review the matter and heard oral arguments on the case on Jan. 4.

A ruling from the SJC is not expected for several weeks.

January 3, 2007

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.

James C. Rehnquist, son of the late chief justice, will argue that the commonwealth's failure to turn over a State Police report made the day LaGuer was arrested, showing that four fingerprints on a key piece of evidence were not his, should invalidate the verdict.

This may seem like a technicality. It isn't for two important reasons: 1) Anything that violates our constitutional guarantee to a fair trial is never a technicality. We have a presumption of innocence because every defendant might indeed be innocent. 2) A great deal of evidence, including that fingerprint report, says LaGuer did not commit the crime.

Suffolk University Law School Web casts SJC oral arguments live at www.suffolk.edu/sjc.

LaGuer became a signature issue in the Massachusetts governor's race when Republican Kerry Healey blanketed the airwaves with two 30-second spots trying to bring Democrat Deval Patrick down by casting LaGuer as a latter day Willie Horton. Patrick had once supported parole and then a DNA test for the inmate.

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.

This tactic is designed to neither get at the truth of who committed this crime, nor ensure procedural integrity. As a result both are subverted. That is not only bad for justice, but undermines our basic values.

The unstated premise behind Hautanen's filings is that the victim's eye witness identification of LaGuer was so strong that it would be politically risky for any judge to overturn the verdict. But a careful review of the record shows that this is just not so. Aside from being kept in the dark about the exculpatory fingerprint report, the jury was unaware that the victim had a long history of mental illness. That is by no means her fault and in no way negates the fact that she was grotesquely violated. But, when taken together with indicators of LaGuer's innocence, such as the fingerprint report and that a man of similar age, height, build and ethnicity, who frequented the building and who had a known history of sexual misconduct, was ignored by the investigating detective, the victim's mental state should raise cautionary flags about the reliability of a cross racial identification that sent LaGuer to prison for life.

LaGuer could have gotten his freedom at his first parole hearing in 1998 had he admitted to the crime. He instead pursued DNA testing in an effort to prove his innocence. After a four-year process which in the end revealed significant problems with the way the evidence was handled, a test LaGuer fought hard to obtain seemed to link him to the crime. Hautanen raises this in her filings as well, even though it has no bearing on the fundamental procedural issues before the court. Worse, she doesn't acknowledge that four highly regarded DNA experts have since studied the evidence chain of custody together with the testing reports and given unambiguous written opinions that the results are unreliable.

The problems with Hautanen's filings go beyond errors of omission and contain instances of blatantly misstating the factual record. Her untruths extend to earlier blood type evidence that has been scientifically discredited, yet she perpetuates unquestionably false arguments.

A prosecutorial strategy that rests on lies, omissions and intimidation should not be tolerated by the courts or by the public. Our liberties are too precious to be sacrificed because of a residue of public opinion from a cynical and ill-informed political campaign. Kerry Healey's lunge for votes was built on and reinforced by calculated efforts by prosecutors to turn justice on its head.

As NECN's Jim Braude said on the air recently, despite the beating he took during the campaign, might Deval Patrick have gotten this one right? 

Eric Goldscheider is an Amherst-based freelance journalist.

Over the Line. 

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

By Eric Goldscheider, Valley Advocate