Rehnquist’s LaGuer Brief Rocks

(Why not a big-ass party *and* open the doors? - promoted by Charley on the MTA)

I’ve been gone a few days, but I was really pleased to read the Reply Brief attorney James C. Rehnquist and his team at Goodwin Procter LLP filed with the SJC earlier this week in their bid to overturn Benjamin LaGuer’s 1984 rape conviction. They make no bones about calling the Commonwealth (in this case represented by outgoing Worcester DA John J. Conte) out on its shameless use of distractions, distortions, and what the brief calls “misstating the factual record” (I think the technical term is ‘lies’), in defending what the brief calls “its indefensible conviction of Mr. LaGuer.”

As faithful BMG readers know, LaGuer has been fighting a wrongful rape conviction for 23 years. In November 2001 a young lawyer unearthed a report showing that four fingerprints lifted from the base of the trimline telephone, the cord of which the perpetrator used to bind the victim’s wrists, did not match LaGuer’s. That information was never shared with the defense, a clear violation of LaGuer’s constitutional right to a fair trial. The State Police has subsequently lost or destroyed the actual prints retrieved from that phone. Rehnquist filed his opening high court brief with the SJC on September 11. The Commonwealth filed its Opposition Brief on November 15. Of its 50 pages only a few deal with legal arguments as to why this withholding of exculpatory evidence should not merit a new trial. The rest is a recitation of the horrific nature of the crime (which is not at issue) and a selective and dishonest account of the trial and subsequent events through which the Commonwealth tries to make the claim that the case against LaGuer was so overwhelming (it was not) that four fingerprints on an item used in the commission of the crime would have had no effect on the jury.

Read Rehnquist’s entire Reply Brief HERE. Or just peruse the following excerpts including several below the flip:

On the commonwealth’s tactics Rehnquist tells the justices:

Astonishingly, despite repeated admonitions during earlier stages of this appeal, the Commonwealth persists in misstating the factual record and making irrelevant post-trial allegations. At this stage, such conduct leaves one only to conclude that the Commonwealth aims to distract the Court from the issues in this appeal… a comprehensive list of the Commonwealth’s misstatements and the irrelevant post-trial allegations would consume far more space than a Reply permits…. In short, the Commonwealth’s persistent misstatements of fact and irrelevant post-trial allegations are nothing more than attempts to provide misinformation and to distract the Court from the issues in this appeal. Such attempts should not be rewarded.


On the 2002 DNA test which supposedly linked LaGuer to the crime Rehnquist has this to say:

Beyond its reliance of numerous misstatements and mischaracterizations, the Commonwealth tries to justify its suppression of exculpatory evidence by repeatedly making post-trial allegations concerning DNA testing… no court has yet considered the relevance and admissibility of such evidence (indeed, no court has ever seen any purported DNA report), and issues such as reliability and chain of custody must be addressed, before such evidence may be considered, Indeed, the very fact that the Commonwealth has never sought to admit any DNA-related laboratory or analytical reports before any court cautions against this Court’s consideration of any such alleged evidence now.

On the overall content of the Commonwealth brief Rehnquist says,

The issue raised in Mr. LaGuer’s opening brief is very clear – the Appeals Court erred in affirming the trial court’s denial of Mr. LaGuer’s motion for a new trial because the Commonwealth violated Mr. LaGuer’s constitutional rights by first suppressing, and then losing or destroying, exculpatory fingerprint evidence. Rather than address this argument head-on, however, the Commonwealth spends most of its brief misstating the record, emphasizing the horrific nature of the crime, and relying on post-trial allegations in an effort to persuade the Court to ignore the Commonwealth’s clear violation of Mr. LaGuer’s constitutional rights. The Commonwealth’s flagrant attempt to inflame the passions and prejudices of the Court should not be tolerated.

On the legal arguments advanced in the Commonwealth brief:

Incredibly, the Commonwealth leads its opposition by arguing that, despite the Commonwealth’s suppression of the exculpatory fingerprint report for over eighteen years, Mr. LaGuer’s trial counsel somehow knew that this crucial report existed but made a tactical decision to proceed to trial without it. This argument not only is factually flawed, but also ignores well-established legal precedent requiring the Commonwealth to turn over all exculpatory evidence to the defendant… Any suggestion that Mr. LaGuier’s trial counsel knew about the report but made a “tactical decision” to proceed to trial without it is simply belied by the record.

On the Commonwealth’s attempt to shift the blame to LaGuer for not trying hard enough to access the fingerprint evidence Rehnquist points out:

[T]he Commonwealth asserts that Mr. LaGuer’s counsel should have done more to seek out this crucial evidence. Setting aside the fact that, as explained above, Mr. LaGuer’s trial counsel did not know this evidence existed, the Commonwealth’s argument is patently absurd, given that Mr. LaGuer’s trial counsel made multiple written and oral requests, to no avail, specifically for this type of evidence. Further, the Commonwealth’s argument completely ignores well-settled precedent affirmatively requiring the prosecution to turn over to a criminal defendant all potentially exculpatory evidence in its possession, even if not requested. In making these arguments, the Commonwealth tries to shift to the defendant the burden of seeking out exculpatory evidence. That view, however, is plainly at odds with the Commonwealth’s constitutional obligations. The Commonwealth’s suggestion that the law obligates defense counsel to do more than make multiple specific requests for exculpatory evidence is untenable.

As for the Commonwealth’s assertion that, hey no one ever told the prosecutor about the fingerprint report, Rehnquist retorts:

[T]he Commonwealth tries to absolve itself by claiming that the fingerprint report was never in the trial prosecutor’s possession. Even if true, though, this claim is irrelevant because the report itself reflects that both the State Police crime lab and Det. Carignan knew of the four non-matching prints and the report.

On what he calls the “perverse logic” behind the Commonwealth’s attempts to undermine LaGuer’s constitutional rights Rehnquist writes:

The danger of the Commonwealth’s position to defendants’ constitutional right to a fair trial is particularly evident in this case. For eighteen years, the Commonwealth suppressed from Mr. LaGuer evidence implicating another individual. In the course of suppressing that evidence, the Commonwealth lost or destroyed the back page of the report and the actual fingerprints themselves, denying Mr. LaGuer any opportunity to examine that evidence for its exculpatory value. Then, upon finally revealing that the evidence exists, the Commonwealth attempts to use the prejudice it created against Mr. LaGuer by arguing that Mr. LaGuer can only speculate as to the benefit the evidence might have provided to his defense. This perverse logic is essentially a blueprint for the Commonwealth’s violation of the defendants’ constitutional rights with impunity – turning the disclosure duties of Brady and Tucceri into, as the Court feared, an “empty promise.”

Less than a month now remains until oral arguments, which are set for January 4, 2007 (yes, the same day Deval Patrick is inaugurated). The issue now is whether LaGuer got a fair trial. By hiding potentially exculpatory evidence from the defense the Commonwealth, it seems clear, failed to live up to its constitutional obligations. The next question is whether or not LaGuer actually committed the crime. If the SJC overturns the verdict, that will be something for a new jury to decide. The Commonwealth’s misleading brief notwithstanding, the evidence I’ve studied clearly indicates that he did not.

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11 Comments . Leave a comment below.
  1. Thanks for continuing to write about this

    A reasonable doubt certainly appears to exist in LaGuer's case, as it does in the case of Lori Berenson, whom I've written about recently here, and who has also spent many years in prison for a serious alleged crime.  In both cases, the powers that be have either ignored exculpatory evidence or relied exclusively on circumstantial evidence to obtain their convictions. And the attitude in both cases has been: let's keep these people in jail at all costs, no matter what the facts are.  Let's see:  Ben LaGuer is a black man, who was prejudged as a rapist by the jury foreman in his trial.  Lori Berenson is a young woman with left-wing views, who was prejudged as a terrorist by the right-wing Peruvian judge in her trial.  The system is unfortunately stacked against both of these people.

  2. Why Can't MSM Web SItes Link...

    to court briefs and other documents like this. That is what newspaper web sites have to do. Make available facts (link to stuff like this) from which a reader can form own opinions and trust facts.

    eb3-fka-ernie-boch-iii   @   Tue 4 Dec 7:00 PM
    • Herald has a Decent Story

      Thanks EB3 for the comment. Some in the MSM are catching on to the value of links. I agree, much more can be done with new interactive communication tools.

      Speaking of the MSM, the Herald's Dave Wedge had a pretty good story on the LaGuer case today. The headline was wanting, playing up the Patrick connection. But the guts of the story got the basic information across:

      LaGuer, whose latest appeal goes before the state's highest court next month, was convicted in 1984 of raping and beating a 59-year-old Fitchburg woman. LaGuer claims he is innocent and was framed, and has spent the past two decades waging a public relations campaign and legal fight from behind bars that has garnered widespread support from academics and celebrities, including Patrick. But many, including Patrick, abandoned their support in 2002 when DNA tests LaGuer claimed would exonerate him instead linked him to the crime...  ...LaGuer's appeal is based on his claim that he was denied a fingerprint report for years that showed prints found on the victim's phone did not match his. Aside from the appeal, several DNA experts have written letters claiming the 2002 tests were not done properly.  LaGuer said he hopes Patrick will take another look at the case in the interest of justice.  "There is just no reason for all this secrecy and all this under-handedness," LaGuer said of his case. "If there was a mistake (in the DNA tests), let them say so. If there wasn't a mistake, let them say that too."

      By now Wedge's readers should know that there are serious questions about the DNA tests and the fairness of the trial. As the case moves to oral arguments let's hope that the boiler plate copy other reporters embed in their stories get these basic facts across.

      • John Conte deserves punishment

        I only can hope that now we have a new Governor, new Attorney General and a new Worcester DA business as usual in Worcester will stop!

        John Conte in his thirty year rein has never admitted to a false conviction, no instead he just makes up more and more false information, then spoon feeds it to the media who in Worcester county drools at every word, it really is sad.

        We need to revamp the State Police C-Pac units attached to the district attorney's office, and bring up to date legal accountability so that lying and losing evidence is prosecuted.

        John Conte can not leave Worcester soon enough, he was a tyrant who belittled his employees, gave free passes to his friends and convicted only the weak and poor.

        They may only be words, but let's hope Devual stands by his words and we see long needed change in our judicial system.

        • The lying in Conte's brief is even more pervasive...

          than Rehnquist has room to explain in his allotted 20 pages. The brief has the gall to try to connect LaGuer to blood from the crime scene that clearly wasn't his. That is the subject of a previous post here and again in an article I had in Worcester Magazine this week. Please give it a read if you have time here. The extent Conte will go to underhandedly try to preserve this conviction is astounding. You are right, Mo Jo, there needs to be consequences for this kind of behavior.

  3. Losing evidence is a serious matter

    Let's put aside the matter of Ben LaGuer's innocence or guilt. The fact that evidence was surpressed and then lost or destroyed calls for an inquiry. Who do we have to go to in order to see justice in this matter? I'm mad as hell about this, and I want some answers! It is outrageous that the very people we trust can thumb thier nose at our laws, and ignore their responsibilities here. Where is the chain of custody filed for this fingerprint evidence, and whose name was on it last? The people of this state deserve to know.

  4. BMG'ers $quot;know$quot; he was wrongly convicted

    is a heck of an assertion to make.  No one is gonna challenge that?

    As we all know from the OJ case, a few imperfections in handling a case do not an innocent man make. 

    If he is guilty, then you are all working to free a bad man who has done great harm.  Don't you care about vicitims?

    • What are you talking about?

      Is this the line you are referring to?

      As faithful BMG readers know, LaGuer has been fighting a wrongful rape conviction for 23 years.

      All it says BMG'ers "know" is that LaGuer has been fighting. If it makes you feel better that could be amended to:

      As faithful BMG readers know, LaGuer has been fighting for 23 years to overturn what they might suspect from having read previous posts was a wrongful rape conviction.

      And might I respectfully suggest that before you characterize the suppression of exculpatory evidence (an much more) as

      a few imperfections in handling the case

      that you take some time to study it? If you have some substantive questions about the case I am more than happy to respond.

      • you got it

        yea thats the line I was objecting to, and your modification would be preferable.  I thought about using a stronger term than imperfections, but I'm really not familiar with the case and I don't plan to get deep into it. 

        • Thanks demolisher

          I appreciate the comment. The first point really is that whether or not LaGuer did it, in a free society none of us should stand by while the state hides and then loses or destroys exculpatory evidence. The second point is that if LaGuer is guilty it should be possible for the commonwealth to convict him again in the context of a fair trial. The DNA evidence will be fair game at such a hearing. And if he didn't do it? Then of course justice demands that he get his fair day in court.

  5. The Facts Speak For Themselves

    I appreciate the fact that some people believe that the right man is behind bars. I don't know how they arrive at that conclusion with the same evidence I see, but everyone is entitled to their opinion. That aside, I don't think anyone can argue that when the state is negligent in it's responibilty to share important evidence, it should correct it's wrong as soon as it can. Where this trial was concluded without the defense having an oportunity to show a jury that critical piece of evidence, a new trial will correct that injustice. Where the evidence was lost or destroyed, someone should be held accountable. We as the public need to be sure that when things like this happen there is accountability, or there is no motivation to do the job right.

    It is not the job of a prosecutor to simply prosecute every case that comes across their desk. They are also charged with ensuring justice. It is not just to turn our backs on this issue. If Ben LaGuer is truly guilty the prosecution should have no problem conveying this to a new jury where he has the opportunity to show evidence they denied him in the first trial.

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