Worcester County DA John J. Conte Uses Lies And Illogic In His Brief Against Ben LaGuer.
By Eric Goldscheider
November 30 2006
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.
Conte’s dogged unwillingness to look at new evidence that has emerged over the 23 years LaGuer has been claiming his innocence is nothing short of shameful. Five years ago a young attorney unearthed a report showing that four fingerprints found on the base of a trimline phone, the cord of which was used to bind the victim’s wrists, did not match LaGuer’s. That report, which is the basis for LaGuer’s quest for a new trial, was hidden from the defense and by extension the jury.
In opposing a new trial, Conte devotes just a few of the 50 pages in his brief to legal arguments as to why this suppressed evidence shouldn’t warrant a new trial. The rest is a hodgepodge of disingenuous claims, based on a fundamentally inaccurate reading of the trial transcripts, that the case against LaGuer was so overwhelming that knowledge of a few fingerprints found on an object used in the commission of the crime would not have influenced the jury. From there Conte reasons backward to claim that the fact that those prints have since been lost or destroyed is of no consequence.
Conte draws attention to a 2002 DNA test showing a trace amount of LaGuer’s genetic material in the biological evidence. He neglects to acknowledge that four highly reputable DNA experts have since examined the document trail associated with the evidence in conjunction with the DNA reports, and concluded that the potential for contamination was extremely high.
But worse than his dishonest and selective use of the record and the DNA testing, Conte introduces a flat-out lie into the proceedings, a lie not related to fingerprints but to blood type.
In October, 1983, three months after having been sent to jail based on a flimsy investigation, LaGuer made an egregious error which he later admitted to. He subverted a court-ordered test of his saliva by mixing spit from his cellmate in with the sample he gave the police. As a result, the State Police chemist was unable to determine LaGuer’s blood type from that sample. Oddly, according to the forensic report, the chemist was also unable to determine a type on all but one of seven items in the evidence that had blood on them. There was one piece of tissue paper the chemist reported as having Type B blood on it.
LaGuer has Type B blood. From then on, every time he mustered a challenge to his conviction, prosecutors argued that his blood type linked him to that tissue and the crime. In August, 2001 that same blood was submitted for DNA testing on the theory that if it, or any of the other blood from the crime scene, matched LaGuer’s genetic profile, there could be little doubt about his guilt. Astonishingly, the blood not only did not match LaGuer’s DNA, but it did match the victim’s DNA, though the victim is known to have had Type O blood.
This means that the forensic report was wrong on a fundamental fact, a very serious issue in and of itself. It was such a dramatic revelation that on February 15, 2002 the Boston Globe’s David Arnold reported:
“For many years Conte has insisted that the blood on the tissues belonged to LaGuer. Parole boards and appellate judges have kept LaGuer in prison partly because of that assertion. In 1991 the state Supreme Judicial Supreme Court denied LaGuer’s appeal for a new trial partly because ‘the defendant’s… blood type was the same as that found on tissues at the rape scene,’ Justices Paul Liacos, Herbert Wilkins, Joseph Nolan, Francis O’Connor and John Greaney concluded.”
Fast forward to the brief Conte submitted to the Supreme Judicial Court this month. In it he repeats the false claim that the blood type connected LaGuer to the crime, even after he knows that to be false.
Conte’s brief is riddled with marginally relevant and outright bogus indicators of the supposedly overwhelming case against LaGuer. It also makes much of LaGuer’s admitted contamination of the 1983 saliva sample, terming it a “fraud on the court” that precludes him from getting any consideration based on the suppressed fingerprint report. In fact, by brazenly perpetuating the debunked connection between LaGuer and the falsely reported type B blood found at the crime scene, it is Conte who is trying to hoodwink the justices.
I think that the single fact that the fingerprints in this case were withheld for 18 years and are now missing calls for an investigation. Someone has been negligent in their handling of evidence while it was in their custody, and I think the public deserves to know who and why.
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There are innocent people in jail for sure, and acts like these are how they get there. I believe that it is high time we as responsible citizens of this state hold officials accountable for losing and withholding evidence in this case. If we don’t, who’s to say the same person who botched this won’t do it again? Next time it could be someone we know and care about, or even ourselves. At the very least we are looking at incompetence, but it may go as far as corruption. The public has a right to know, and the DA has a responsibility to answer when we ask. It is by our pleasure he serves us as an elected official. He is not above reproach
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If there was no wrong doing then the inquiry will lay people’s fears to rest, but I don’t see how we can simply ignore the elephant in the room so to speak. What can we do Mr. Goldscheider? I was thinking of starting a letter writing campaign to the new AG and DA. Your thoughts?
It seems pretty clear that some bright procedural and possibly ethical lines were crossed in how this case was handled by law enforcement agencies. It is also troubling that written inquiries to the State Police from several legislators about the missing fingerprints were basically stonewalled. The person to most logically investigate these lapses would be the attorney general. So that would seem like a good place to start. Building and nurturing public trust in the judiciary is crucial in order for a civilized society to function.
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On that I’ll offer two quotes, one from someone not often (if ever) cast in a favorable light on BMG.
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And hey, when he’s right, he’s right…
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Let me get this straight. Six state reps. have asked about this evidence and DA Conte’s office has not even dignified their letters with a response?!
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It is obvious we have to move up the chain of command if we are going to get the answers the people of this state deserve. Whoever “lost” this evidence has some explaining to do. It has been 23 years since this man was put in jail. I wonder how many other times evidnece has been “lost” as a result of their success in getting away unquestioned in this case. In any company you work for accountability is everything. Is the standard lessened in public service? This could be a criminal act, doesn’t anybody care to check?!
A State Police fingerprint report prepared the day LaGuer was arrested (July 15, 1983) states that four fingerprints found on the base of the trimline phone, the cord of which was used to bind the victim’s wrists, were NOT LaGuer’s. That information was never shared with the defense and by extension the jury. The report was unearthed in 2001, but we still haven’t been able to see the actual fingerprints found on the phone. So far six State Reps (one of whom is now a State Senator) and two State Senators have written to the State Police (not DA Conte) to inquire about the whereabouts of those fingerprints. So far they haven’t gotten a satisfactory answer as to why they can’t produce the fingerprints and if they’ve been lost or destroyed, why. Standard procedure would have been for the prints to be on the back of the report. The report that was unearthed says at the bottom “over for additional” yet the back of the report has yet to be made public.
There is always a chain of command for us to follow, I see that you sent a letter to the state police and never got an answer. Do we have to take them to court in order to get a reply? Is there someone who is a sopesperson for the State Police Headquarters we can ask for this information, or at least an explanation as to why we can’t have it?
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Is there going to be an objection in the courtroom to Conte’s continued misrepresentation of the blood evidence?
Did the State Police have a legal obligation to preserve those fingerprints? I don’t know the answer to that question. What we do know is that they were able to find the front of the fingerprint report. But not the back??? What’s up with that? Given the importance of knowing whose fingerprints were actually on the phone they have a clear moral obligation to respond to elected officials and the public to explain how that could be and to do everything in their power (and in a transparent way) to find those fingerprints. And if they can’t, to find out why they can’t. You are absolutely right, John. There must be some accountability.
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As for what will happen in court? That will be up to LaGuer and his lawyers. According to the SJC docket they are due to file their rebuttal on Monday. I am going to be away from computers and blogging for a few days but I hope to get ahold of a copy and post it to BenLaGuer.com by midweek. The blood type evidence is really a side show. The SJC is being asked to determine whether the commonwealth had an obligation to disclose the potentially exculpatory fingerprint report to the defense. Lawyers I’ve spoken to say, yes they had an absolute obligation to share that information. The infuriating thing is that District Attorney Conte, in all his filings, keeps introducing these side shows in his effort to say, in effect, the evidence against LaGuer was so overwhelming that the small matter of a few fingerprints wouldn’t have changed the verdict anyway. The point I’m trying to make is that not only are his side shows not relevant to the question at hand, but they are factually incorrect to boot. In the case of the blood type, he is happy to make mention of the DNA test that seemed to implicate LaGuer (even though that too is really beside the point) but he ignores the DNA test that put the lie to the forensic report and the falsely reported blood type match. He can’t have it both ways.
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The bottom line is that if the SJC overturns the verdict based on what seems to be a clear violation of LaGuer’s constitutional right to a fair trial there is nothing to prevent the district attorney from retrying the case. That will be the proper place for a new jury to evaluate the DNA evidence if the commonwealth chooses to introduce it.
The apple does not fall far from the tree, and Reinquist proves himself to be as intelligent as his father, our departed former US Chief Justice. I just got done reading the defense’s rebuttal, and boy if you are interested in this case it is a must read. I cannot see how the commonwealth can continue ignoring the harsh injustice they have handed Ben LaGuer. The only way I can see this plea for a new trial being ignored is if there truly is a fix in the make. Only dirty politics can keep this new trial from happening in light of the overwelming evidence.