According to last Saturday’s Globe, a State Police Lab administrator admitted to misrepresenting and mishandling DNA test samples and test results in at least ten rape cases. This newly disclosed FBI audit may be the final straw that pokes the Supreme Judicial Court into ordering a new trial for Mr. LaGuer.
In 1999, Ben LaGuer and his attorneys, including Robert Cordy (now a member of the SJC), believed that a DNA test, although new to criminal proceedings, could clear LaGuer’s name. LaGuer and his lawyers trusted the Worcester DA’s office and the state crime lab to submit DNA samples taken from the crime scene, along with LaGuer’s own DNA for an independent DNA lab test.
IN 2002, LaGuer and his supporters received shocking news; The DNA lab test, conducted in California, was positive; the test linked LaGuer with the crime scene.
During the lengthy wait for his DNA test results, LaGuer received equally shocking news; A police report showed that Leominster detectives had illegally and secretly taken a pair of LaGuer’s dirty underpants from his apartment, a day after the 1983 rape incident; The previously hidden police records indicated that the underwear was being kept with evidence from the crime scene.
With this knowledge, and the mishandling of other crime scene evidence, many national DNA experts and criminal attorneys believe that the labeled DNA samples from the 1983 crime scene, could easily have been DNA samples taken from LaGuer’s stolen undershorts, hence framing LaGuer with his own DNA.
Two weeks ago, SJC Justice, John M. Greaney, oblivious of the stolen underwear or of the FBI’s current investigation of the state crime lab, sounded openly cynical as he questioned LaGuer’s chief defense attorney, James C. Rehnquist, son of the late Supreme Court Chief Justice, as Rehnquist argued for a new trial.
“Are we just having an academic discussion today, because at a trial, that DNA evidence would sink him,” said Greaney,
Now, just a few weeks later, with the FBI investigating the extent of the State Lab’s DNA debacle or crimes, Greaney should have second thoughts about the sanctity of DNA tests, as well as the sanctity of his state crime lab.
Meanwhile, the SJC is expected to issue a ruling on LaGuer’s request for a retrial sometime in the next few months.
Why the Worcester County DA’s office and potentially, the State Police crime lab, would want to frame an innocent man, is another subject.
However, at three different hearings, since 1998, the Parole Board has offered Ben LaGuer his freedom, with one condition; LaGuer must admit to having committed an eight-hour rape of a 59-year-old former mental patient, on July 12, 1983.
Three times now, LaGuer has refused to admit any connection with the crime. And so, today, Benjamin LaGuer remains incarcerated at the Souza-Baranowski prison in Shirley.
LaGuer is a remarkable human being. During his first decade behind bars, he began studying law and working on behalf of other prisoners’ legal needs He also completed a BA degree from Boston University, where his case was noted by then University President, John Silber. LaGuer also received a PEN award for his prison writings.
Using his writing skills, LaGuer has rallied lawyers, social justice leaders and politicians around the nation, including Governor Deval Patrick, author William Styron, Harvard Professors Charles Ogletree and Henry Louis Gates Jr., State Representatives Ellen Story D-Amherst and Benjamin Swan D- Springfield. He raised the required $30,000 for his DNA test.
At his Inauguration a few weeks ago, Gov. Patrick, reminded us that government is only as good as our individual aspirations. It is through continued civic engagement, he said, that we can make sure that our government protects each person’s civil rights and offers justice to each of us, no matter what our gender, sexual preference or the color of our skin.
Benjamin LaGuer is a model of such engagement.
In this same spirit, we must each now face the unspeakable possibility that the Worcester County DA’s Office, and possibly even the Massachusetts State Police Lab, have caused the twenty-three year incarceration of an innocent man.
Last week, after hearing that a number of the SJC justices seemed cynical when asked to consider his request for a new trial, LaGuer showed his typical spunk.
“I’m going to be optimistic till the day that I die, that I will one day get a fair trial,” said LaGuer.
Go Ben Go.
I am glad to see that people are starting to look at Ben’s case in the right light. Many of us assume that things will just fall into place, or that it is someone else’s responsibility to take care of troubles they have no stake in. Ben LaGuer is one such case that should remind us all of the consequnces of such thinking. If we are not vigilant in guarding justice, things can run ammock. The same justice system that has kept innocent men in jail, and has denied Ben LaGuer the opportunity for a fair trial is the same justice system that serves us. Scary huh?
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There are not nearly enough civilians involved in this issue, and I personally invite anyone intersted in knowing more, and helping to contact me. SalemMaMan@gmail.com
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Keep up the great work!
Here is another blogger on board. Also, check out the chatter at this post.
I’m just asking, if LaGuer were to be retried, and found guilty anew could you, Hosty, and SO accept that verdict? I have no idea if he’s guilty or not, but if the DNA were re-examined and continued to tie him to the scene of the crime, would that be sufficient?
A fair trial would start out with a jury selection process that led to a panel that represented the community as a whole. Not 12 white men, as in 1983. It is well known that a homogeneous group is more apt to reinforce prejudices. Then it would proceed with attorneys on both sides dedicated to making the best possible case they can within the confines of the facts. And the forensic reports both favorable and unfavorable to the defense would be known to all. That would include the supressed fingerprint report.
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It’s no secret that the investigating detective died of cancer in 1988. But his reports and his 1984 testimony are readily available. Also, the victim died of old age in 1999. She testified at the original trial – that would be available – and other than that she didn’t seem to play a big role in the prosecution. Granted, LaGuer was convicted almost entirely on the basis of her pointing to him (the only dark skinned person in the room, sitting at the defendant’s table) when the question was asked whether the person who attacked her was present. Her long history of schizophrenia was not known to the jury in large part because Ben’s lawyer (from the way I read the transcripts) misunderstood a pre-trial ruling on the admissibility of her psychiatric history. So in a fair trial, there would be a full pre-trial airing of whether her mental condition would be germane to the jurors. I don’t know what the outcome of such a hearing would be, but it should take place.
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Of course, not having the detective or the victim present would be a handicap to the prosecution. But what it would have is the DNA. This would probably be at the heart of the trial. The validity of the DNA test and the meaning of its results would be the subject of what is called a Daubert-Lanigan admissibility hearing (see also this link). This is something that would not happen in front of the jury. It is the procedure by which the courts examine the admissibility of technical and expert evidence/testimony. This would be where both sides, in a public forum, under the guidance of a judge, would be able to air and argue all aspects of the DNA test. Its faults and strengths would be fully evaluated. At the end the judge would rule on what aspects of the DNA test could be presented to the jury as part of the trial and what aspects are unreliable and could therefore be prejudicial to a fair trial.
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Then, the actual trial would commence. It would be public. Then the jury would deliberate and render its verdict. How does that sound to you?
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One more point: For Justice Greaney of the SJC to ask, as happened two weeks ago, whether the discussion over the suppression of a potentially exculpatory fingerprint report at the time of the original trial was nothing more than an “academic exercise” because “the DNA would sink him” anyway at a new trial, misses, IMHO, the entire point of the appeals process. The question at that point should have been limited to whether or not Ben got a fair trial in 1984. For the DNA to play any role in that decision (even unstated) is just plain wrong. As Justice Ireland said during the SJC hearing, “even guilty people are entitled to a fair trial.” The point is that the DNA test has never been subjected to even the most rudimentary admissibility hearing. That can and should happen as part of a fair trial. Comments?
Are they inherently biased?
Bob, I wouldn’t go so far as to say that a panel of 12 white men is inherently biased. But a lawyer in this day and age would be nuts not to raise bloody heck if it looked like that was going to be the composition of a jury for a Latino accused of rape. It is well known that people in a homogeneous group feel licensed to say things they might never dream of saying in a more diverse group.
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But the problem in Ben’s case goes much deeper than that. In 1987, three years after the conviction, a young AP reporter named John King, who would go on to become the CNN White House Correspondent, started calling up jurors from Ben’s trial. One of them, William Nowick, made the startling revelation that another member of the panel had made bigoted remarks before the trial and during deliberations. Nowick put those into an affidavit. The allegedly offending remarks included: “The Spic is guilty just sitting there, why bother having a trial,” and “Spics screw all day and all night.”
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Why do you think people like Deval Patrick and many others got involved with this case? Because Ben is such a sweet talker? I don’t think so. The 1991 SJC ruling in Commonwealth v. LaGuer was a landmark decision in favor of Ben. But the SJC didn’t overturn the verdict, instead punting to the trial court judge who said he just didn’t believe the juror. (It’s a bit more involved than that, but that’s the gist.) That hearing was written up in the May 1994 issue of Esquire Magazine. Look it up. It was a farce.
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Please take a look at these two YouTube clips and I think you’ll have a better idea of what I’m talking about:
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Part I
Part II
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Actually, I’d like to put them up as new post, maybe you’d do me the favor of front paging them.
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The point is that former Assistant United States Attorney General for Civil Rights did not become interested in this case for idle reasons. It’s an important case and it needs to be taken seriously. The DNA added a wicked twist, which spiraled off into the governor’s race. Right now, if we are going to understand this tangle we need to start advocating for an independent examination of that DNA test.
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I enjoy the dialogue and am looking forward to your thoughts.
If the retrial in 2007/8 had a jury of 12 white men, could it still be fair in your opinion?
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And I do want to take a minute to appreciate your unyielding graciousness in this conversation Speaking Out — you are a class act and a great voice for your cause.
Thanks for the comment. Graciousness on all sides is always appreciated.
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As for your question, I wouldn’t want to prejudge the jury selection process. If Ben’s lawyer, James Rehnquist, for instance, with access to all the legal mechanisms at his disposal to ensure that, to the satisfaction of both sides, a fair panel would be selected, then I’d be okay with that. Having said that, I doubt very much that it would be an all white male panel, for the simple reason that the jury pools in Worcester County are much more diverse than they were back then. But if that’s the way it worked out in a fair and open process, then fine.
can you source this statement:
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During the lengthy wait for his DNA test results, LaGuer received equally shocking news; A police report showed that Leominster detectives had illegally and secretly taken a pair of LaGuer’s dirty underpants from his apartment, a day after the 1983 rape incident; The previously hidden police records indicated that the underwear was being kept with evidence from the crime scene.
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It does seem to conveniently match the theory that LaGuer invented right after the DNA test fingered him, oddly enough. Also, what would be illegal about taking a pair of his dirty underpants from his apartment?
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You ask some good questions.
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The answer to the first part of your question is contained in Ben’s Leominster Police file, which, with the help of an energetic lawyer at William Weld’s old law firm, he got through the Freedom of Information Act (a favorite of libertarians) in April 2001, while he was waiting for the Court to act on his DNA test. If you give me your email address I’d be glad to send you PDF files with the most shocking of those documents. If you don’t want to post it publicly, you can email me off BMG at eric.goldscheider(at)gmail(dot)com. Having been obtained through FOIA, they are, after all, public documents.
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The answer to your second question:
This is quite simple. I went to Leominster District Court to get a copy of the search warrant and the warrant return. The return very explicitly states that “nothing” was taken during the search. So if you take something and sign a sworn statement to a judge saying that you didn’t, that’s what’s known as illegal. I’ll be glad to email you a copy of the search warrant return as well.
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I look forward to hearing from you.
that you put the docs on the web for all to see… why confine them to a private email exchange? If the gun is so smoking, then make it available to everyone.
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Also, point of clarification: in your explanation, the supposed taking of the underwear was not illegal but the lie on the sworn statement was.
Taking something from someone’s apartment without a warrant is called larceny. I don’t care who does it. True, the detective could have gone back to amend the warrant, but he didn’t. As for putting the docs on the Internet, they have been on the BenLaGuer.com Website for many months. Obviously you haven’t spent much time there. I offered to email them to you directly as a way of making it easier for you. The offer still stands.
If you shine a light in a dark room you might see tiny particles of dust floating in mid air. That particle would be approximately 1 nanogram, or 1 billionth of a gram. The DNA report shows that all pooled they found 0.03 nanograms of his DNA. I ask everyone to think about how the DNA experts says this amount is only enough to be caused by contamination, not evidence. The articles that were taken illegally from Ben LaGuer’s apartment were to my understanding kept in the trunk of a police cruiser, along with items from the crime scene for two weeks prior to being filed into evidence.
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When all the facts are layed out, it points in one direction; a new trial. That’s the least we should do in light of the evidence.
I trust in our system to try and be fair, but we all know that it can be off at times. Ben’s case seems to be one of those times. If new evidence came out that proved Ben’s guilty, I am not one to deny the truth. The more you read about this case, however, the more you realize that is not what is happening here. Check out benlaguer.com for more info, you’ll be amazed.
I say “LETS GET BACK TO REALITY PEOPLE”
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Start with this . . .
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“A quotation from one of Patrick’s letters was removed from LaGuer’s Web site in the last several days, after Patrick issued a statement suggesting he no longer supported the effort to free the convicted rapist. Patrick said he had reviewed the history of the case and concluded that “justice has been served,” in light of a 2002 DNA test that confirmed the prosecution’s case against LaGuer.”
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this was taken from telegram.com
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http://www.telegram….
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Deval Patrick thinks the bum is guilty even in light of a 2002 DNA test. I bet this renewed interest in this case will stall out and sputter, then eventually will die on the vine.
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Who dares to challenge me.
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