I was on Tom Vannah’s show earlier in the morning. You can hear that exchange here:
Eric Goldscheider (aka “Speaking Out”) and Susan Wadia-Ells being interviewed by Tom Vannah.
Please share widely!
Rep. Ellen Story Talks About the LaGuer Case and Also About Today’s Constitutional Convention
Story told Tom Vannah that she would be back in his show tomorrow morning to give listeners a postmortem on the ConCon. I’ll be interesting to see what she has to say.
Representative Story should be ashamed of herself. She says that she doesn’t know if LaGuer is guilty or not but makes it clear that she is firmly in his camp. LaGuer is a convict and he is conning her and he is conning you.
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Every impartial court that has examined this case has affirmed the original finding of guilt. When he was caught and convicted it was clear that they got the right man. Over time an aura of injustice has been nurtured by LaGuer and his followers and now there is a full-blown myth. Rep. Story should know that even Charlie Manson has followers and they have woven tales as well.
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There are many that have been wronged by the criminal justice system. Why people like Rep Story gravitate toward those who were convicted of heinous crimes (a la Manson, Bundy, LaGuer) is a mystery to me when so many others truly deserve their help. And those guys don’t even get a sniff. But give me a convicted rapist of a mentally challenged woman, oh, there is a “victim” I can wrap my arms around.
I know the question of anonymous posting gets a workout on BMG from time to time. But RegularJoe, it’s hard to take your strident tone seriously unless you at minimum give us a clue as to where you are coming from (who you are). It might also be nice if you back your post up with real arguments, not just mud slinging. Tell us at least why we should think you are regular or even Joe.
Why didn’t you address the fact that Ms. Story says that she is unsure as to LeGuer’s guilt or innocence but then becomes a slavish proponent of his cause? No, you choose to attack me and question my right to opine about a convicted rapist. Jailhouse groupyism knows no bounds I guess.
The beauty of the Internet is that the readers of this post can listen to the interview themselves and not be limited to your spin on it. Rep. Story said that she has no way of knowing if LaGuer is factually innocent, but that she has seen enough to believe that the case needs a second look and that he might very well be exonerated at a new trial. Listen again if you missed that part. As for your right to opine? No argument there. Just don’t try to pass yourself off as informed when it seems you’ve spent precious little time studying the case. What if I told you that Rep. Story has consulted with national DNA experts and actually spoken with some. Thanks to the Internet you can read the letters she received (the first three are to her):
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Letter from Dr. Theodore Kessis (pdf)
Letter from Prof. Daniel Hartl (Word)
Letter from Dean Wideman (pdf)
Letter from Dr. Lawrence Kobilinsky (pdf)
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Rep. Story has also spoke with LaGuer on the phone and recently she gave her aide the day off to go and personally meet with LaGuer (check your spelling RJ) in prison. She has also personally attended or sent her aides to attend every hearing on the case since 2003. In other words, she’s done her homework. Writing her off as a “jailhouse groupie” is not only disrespectful but uncalled for. I don’t question your right to opine on this or any other issue. I’m just curious what you bring to the table other than slurs. Do enlighten us please.
If I understand the DNA issue, the question is whether the test that LaGuer and his advocates demanded and which (to his advocates’ surprise) found LaGuer’s genetic material were flawed in some way. But for the life of me I don’t understand how this goes to his guilt or innocence. In the best case for LaGuer, the DNA test would have failed to find his genetic material. But even in that case, the test would hardly be conclusive, given the eyewitness testimony of the victim identifying LaGuer, and absence of evidence (no LaGuer) isn’t evidence of absence (i.e., doesn’t show that LaGuer wasn’t at the crime scene). Sure, eyewitness testimony can be impeached, but wasn’t the jury entitled to believe the testimony of the victim?
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I chimed in on one earlier LaGuer thread, and I’m chiming in here again simply to say that based on my admittedly non-expert review of the case, I don’t see much basis for a challenge to the conviction. I do think the issue of the reliability eyewitness identification in general is one that should be discussed, but the LaGuer case is hardly a good test case for a challenge to eyewitness identification, as the rapist and the victim were together for several hours in an interior space. This was not, in other words.
This was not, in other words, an eyewitness identification based on a quick look at the defendant under a streetlight.
You raise some valid questions. You are right that the DNA results don’t help LaGuer. Had there been male DNA that wasn’t his, and that could be matched to someone else, that would have been a convincing indication of his innocence. But that is not the result that came back. So the question on that score then becomes whether they fact that LaGuer’s DNA was found in the evidence is physical proof of his guilt. The experts who responded to Rep. Story think not. They looked at the DNA reports and the evidence chain of custody documents and concluded (mainly because LaGuer’s underwear turns up in inventories and lab notes with no plausible explanation – and because the amount of male DNA found was so minuscule) that contamination is a more likely explanation for the result than would be LaGuer’s guilt. I’d urge you to read those reports at the links above.
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LaGuer found out in 2001 that four fingerprints had been lifted from the base of the telephone, the cord of which was used to bind the victim’s wrists, and that those prints were compared to his with “negative results.” Unfortunately those prints have since gone missing. So there is the conundrum you identify. Absence of LaGuer’s fingerprints doesn’t prove LaGuer’s innocence, unless of course, those prints could be matched to someone else with means and motive to commit the crime (i.e. the man private investigators named as a likelier suspect who went on to be charged with a different rape in 1998 and who still lives in the community). The argument LaGuer’s lawyers made, and which the SJC rejected, was that this report should have been made available to the defense and hence the jury and the fact that it wasn’t was a breach of LaGuer’s constitutional guarantee of a fair trial. My take on that is that LaGuer’s lawyers were making the right argument but that the SJC was too timid to do the legally correct thing in the face of a highly politicized case. In any event, the SJC’s ruling is a matter of public record you are free to go read.
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So, if you’ll agree that the DNA issue is a wash, then, as you rightly point out, the strength of the victim ID becomes crucial. Serious questions were raised about the victim’s ID from the start. These played prominently in the many articles written about the case in the 1980s and 1990s. A few highlights: The police reports indicate that she first said the attacker had been in her apartment for two days. She also said he had been there ten minutes. The eight-hour scenario got into the press based on the fact that she habitually went to bed at 9 p.m. and that going to bed was the last thing she remembered before the attack. Keep in mind, she had a long history of mental illness that the jury was kept in the dark about. So there is a question about how long the assailant was actually in the apartment. LaGuer had a pronounced stutter at the time and a prominent tattoo, neither of which the victim mentioned. In fact, she said the assailant spoke to her, never mentioning the stutter. When she did identify LaGuer it was off a photograph shown to her in her hospital bed two days later. LaGuer had been living next door to her for two weeks or so, so his was a familiar face. Whether the detective showed her an array of eight photos, as he claims, or only one is an open question. A reporter in the 1990s spoke with a hospital matron who said the victim was shown only one photo. According to the police reports and the hospital records, the victim consistently said she did not know who did this to her during the first hours and days after the crime. Only after he daughter threatened to move into the apartment as “bait” to lure the attacker back, did she ID LaGuer based on the photo she was shown. Keep in mind again, that she had a long history of mental illness and that this fact was kept from the jury. She was also traumatized and medicated when she made the ID. When she was on the witness stand at trial half a year later she adamantly denied ever implicating the man next door and she misidentified the races of several of the other men in the photo array, something that raised questions among some jurors. At least one juror said after the trial that had he known of her history of mental illness he wouldn’t have voted to convict.
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This same juror came forward with a dramatic revelation that jurors on the panel made racist comments about LaGuer before the trial and during deliberations. I urge you to watch this TV report (in two parts) which tell that story.
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This issue went all the way to the SJC, where LaGuer won in 1991. But instead of overturning the verdict the SJC sent the case back to the trial judge for a finding of fact. In a bizarre hearing, written up in Esquire Magazine and other places, the judge cut the hearing short and ruled that in his estimation the allegations of juror racism couldn’t be supported. This is really the reason so many prominent people, including Gov. Patrick, became so outraged about the case in the 1990s.
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In the last months a new potential witness has come forward to say that she knew the victim intimately in the years after the crime. You can read about her revelations here. Her revelations also indicate that the prosecutor misled the judge as to the victim’s mental state. Based on that, the judge ruled that her underlying mental illness could not be raised in front of the jury.
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The initial question then is not whether or not LaGuer is guilty. The first question is whether he got a fair trial in accordance with basic constitutional guarantees. If he can prove that he didn’t then it would be up to a new jury to decide the question of guilt or innocence. Granted, the commonwealth wouldn’t be able to put the victim on the witness stand (she died of old age in 1999) but it would have the DNA results. The context of a trial would be the most appropriate place to weight the significance of that evidence.
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I have only touched on some of the problems with the case against LaGuer, trying to be responsive to the specific points you raise. There are others, and they are big. If you’ve read this far, thank you.
I appreciate the detailed response, and I certainly don’t mean to suggest that you or other LaGuer advocates are kooky at all.
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Some follow up:
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1. It seems to me that the weaknesses in the eyewitness identification (the witness’s changing story, her failure to mention the stutter, her mental condition, etc.), would have been fertile material for cross-examination. Are you saying that the Commonwealth somehow concealed this evidence? Or are you saying that LaGuer’s lawyer was ineffective for failing to argue it? Or was this stuff brought out at trial? With regard to DiMartino, are you saying that the Commonwealth somehow concealed her or her evidence at the time of trial (you write that the jury was “kept in the dark” about her mental state)? I ask these questions because it seems to me that unless the state concealed this evidence (as you suggest it concealed the fingerprints), the only challenge to the conviction would be based on ineffective assistance of counsel. But hasn’t LaGuer already argued ineffective assistance and lost?
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2. The racist juror issue is troubling, but as I understand it, it has already been litigated, and in any case, even assuming the truth of the allegation of racism, it again seems to me that this is not the same as evidence of innocence, right?
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TedF
I am not a lawyer, but I am getting a lay person’s grasp on some aspects of the law based on studying this case. You are right, I believe, that we could argue the juror racism issue until we are blue in the face but it wouldn’t make any legal difference because the issue has been litigated and therefore legally settled. But this isn’t a court of law, it’s a blog, so I think there is value in looking at it. It goes to the smell test of whether or not we should continue to be troubled by the case. It is also politically significant because it is what got people like Eli Wiesel, William Styron, John Silber, Noam Chomsky, Henry Louis Gates Jr., Charles Ogletree, Deval Patrick and many others interested in the case. The fact that Kerry Healey tried to turn LaGuer into Patrick’s Willie Horton in the campaign makes the juror racism question of much more than academic interest. If in fact LaGuer can get a new trial and is exonerated that could help drive a stake in the heart of the kind of tactics Kerry Healey threw at her opponent.
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As for the other points you raise. The new potential witness was not known or knowable to the defense until very recently. So I believe that her revelations might be legally significant on several levels. Again, I am not a lawyer, so I don’t want to presuppose what LaGuer’s legal team might or might not do with this.
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As for the quality of the representation LaGuer got at his original trial. Some of that has been litigated and therefore settled from a legal point of view. Some of the new revelations may open parts of that process up for renewed scrutiny. I don’t know. I have read the trial transcripts several times. I have also tried to interview LaGuer’s original lawyer – his name is Peter Ettenberg – but he so far has refused to talk with me. I have spoken with others, including one of the private investigators he hired with LaGuer’s money to look at the case from the outset, and what I have gathered is quite damning of work Ettenberg, who otherwise has a good reputation, did on this case. Perhaps the easiest way to understand this is that he secured a plea bargain under which LaGuer would have walked out of prison, albeit branded as a rapist, in 1985. He then went off on vacation to Barbados. It would have been a great plea deal for a guilty man. When Ettenberg returned from vacation he was unprepared for the fact that LaGuer refused to take the plea and was unprepared for trial. He was quoted in the press in the years after the trial as saying that he believed LaGuer was falsely convicted. You need go no further than the video I posted above to see that Ettenberg didn’t even contact alibi witnesses who would have been willing to testify. This is very basic stuff. But it has been litigated and, I believe, is therefore not relevant in a legal sense. But again, this is a blog, not a courtroom, so it is relevant to whether or not the case against LaGuer passes the smell test.
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When I say that the the jury was kept in the dark about the victim’s mental state, this was as the result of ruling from the bench that to raise it would have been prejudicial in the eyes of the jury. That was 1984. The irony is that the argument was that she was cured based on an assertion that she was off her meds. By today’s standards that would be a ridiculous argument. Again, does this pass the smell test?
I think you make a very good point about the difference between a blog and a court. A criminal conviction is unfortunately no guarantee of guilt in fact, and of course I (and you) lack any personal knowledge of what happened at the scene of the crime. So in a sense we are making different points, and that’s fine. But I think you are interested in more than considering whether “justice was done” here as an exercise in journalism. You would like to get LaGuer out of prison, which makes the legal stuff important.
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Regarding the trial judge’s exclusion of evidence, the question whether the exclusion was an abuse of discretion was a matter for direct appeal and is now settled, though see the previous paragraph.
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Regarding DiMartino, let me press you a little bit. I take it she was “unavailable” because she simply did not come forward until now. Is that right? If so, again, I don’t see much of an issue here. (I am a lawyer but not in criminal practice, so I don’t have any special expertise here).
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If I were trying to get LaGuer out of prison, given what I think about the chances of getting a new trial, I’m not sure what approach I would take. Presumably parole, commutation, or pardon would be almost impossible politically, at least if LaGuer is unwilling to admit guilt. You could figure out who committed the crime, but even a clear admission from the true criminal would probably be suspect now, as the statute of limitations has (I think) expired.
Let me take your points one at a time.
This is both true and a truism. Very few cases don’t require the power of deduction to arrive at the closest approximation to the truth as possible. Theories can be ruled in and ruled out, and the relative merit of different theories can be evaluated and discussed. On thing I can say is that I have spent time at the crime scene, which, according to what I’ve heard, is more than LaGuer’s original (Worcester-based) lawyer can say.
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I tend to think you are right on this one. But I could see an argument based on the idea that scientific and popular understanding of mental illness has evolved since LaGuer’s direct appeal on this issue ran its course, and could therefore be revisited.
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I’m not going to engage with this question (see below). LaGuer has lawyers and I’m not one of them. I’ll leave it to them to figure out what the legal issues are. That doesn’t mean I’m not very curious to see what they come up with.
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Skipping back to the start of your post.
I came to the case as a journalist, following it in the build up to the 2002 DNA test. I continued to maintain a certain emotional distance from LaGuer’s fate for some time after the test. I did a ton of research and reporting. At a certain point I grew frustrated by the fact that insights I had gained into the case were (and that I was) being ignored by the journalistic establishment. I started posting to BenLaGuer.com taking pains to put up as much in the way of original documents relating to the case as possible. I also went to visit people associated with the case such as John Silber. In that kind of an encounter I wasn’t the journalist asking questions, but the bearer information I wanted him to hear. He listened, understood, and ended up testifying for LaGuer at his 2003 parole hearing (after! the DNA test). So this kind of an encounter scrambled my role. I also corresponded with the pro bono committee at the law firm that ended up taking LaGuer’s case, responding to questions they had about the history of the case. Again, I was answering questions, not asking them. In time outlets became available to me to write about the case. Not the least of those was Blue Mass Group. I registered a year ago this month not knowing about the political firestorm that was to ensue. The Valley Advocate out my way also decided to give me a forum and gave me free range to write about the case almost at will. My first article (a cover story) appeared there last August. The MetroWest Daily News oped page has also been good to me in allowing me to express myself on aspects of this case. After the SJC decision in March I took stock of my involvement with the case and decided to distance myself emotionally and to concentrate on documenting what I have come to see as high drama. It is no secret that I believe LaGuer’s trial was critically flawed and that his claims to factual innocence have merit. These conclusions are based on research, not instinct or ideology. If I or anyone else discovers new facts that change my mind, fine. So far that hasn’t happened. So yes, I don’t think LaGuer belongs in jail. Does that mean I want to see him get out? How would you answer that question given what I’ve said?
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In case you haven’t noticed, a vocal lobby for LaGuer’s cause has emerged. John Hosty and Susan Wadia-Ells (two BMG denizens) created the Free Ben LaGuer Now Committee and teamed up with Community Change in Cambridge to create a structure to raise money. I can report that according to Wadia-Ells, she has received two checks so far totaling $2,000. She set an initial goal of $10,000 and is well on her way. She has also heard from people who want to help out, so the group is growing.
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I’ve decided to go back to being a journalist on the case, glad for the front row seat I have on a truly fascinating drama.
I read your posts on LaGuer and noticed you have implied at least three times that you have little understanding of the case, then went on to read points you make that have nelighted me on the case. Am I talking to John Conte? 😉
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Seriously, this is not adding up for me…
I’m sorry to disappoint you, John! I’m not John Conte, and everything I know about the case comes from what I’ve gleaned from reading up at benlaguer.com and the two SJC decisions. I’m a fan of the Innocence Project and I’d be happy to have the case for LaGuer made to my satisfaction.
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When I was in law school did prisoners’ rights work, and I represented several prisoners at parole hearings, including one who, in my view, was not guilty of the murder for which he was serving a life sentence. So I know what you’re up against in terms of public sentiment. That doesn’t mean I think you’ve made your case, though!
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TedF
So your a lawyer eh? That would explain how you would consider benlaguer.com a little light reading, lol! I have to ask you though, how can you look at the ever growing mountain of evidence that all points in the direction of Ben LaGuer’s innocence, and not be swayed? What do you see there that keeps you so skeptical? What am I missing?
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Please understand that I sometimes have a hard time seeing other people’s point of view. Lead me by the nose if you have to, I would like to be able to at least see why people would foo-foo at what I thought was obvious within the first 30 minutes of reading.
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I know this, if I were a DA, and this same case with all the evidence we know as fact came across my table today, I’d cringe at the thought of prosecuting it. We are putting our faith in the ability of a woman who we know was insane to be able to identify her attacker. Place your son in the stead of Ben LaGuer; is this still good enough?
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I have absolutely nothing to gain from bringing these points up, or whether Ben goes free. My motivation is that of the Good Samaritan”. I came across Eric Goldscheider after I had fought to make sure people knew the truth about Kerry Healey’s ad campaign. After we won the decisive victory in the election, I took an interest in getting answers to questions that have plagued this case. I’m sorry, but if fingerprint evidence just “disappears”, someone should get a nasty letter in their file as the very least. There has been zero accountability in this case, and aside from Ben’s innocence or guilt, we deserve some answers. Who’s to say that Ben isn’t telling the truth, and we are one neighbor away from having a debacle like his happen to one of us?
Look, I don’t know whether LaGuer is innocent or guilty. I start by presuming that the decades-old jury verdict is correct and ask myself whether there is anything that persuades me that LaGuer deserves a new trial. (I think my presumption is a fair one, but you tell me if you disagree).
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Here are the points you and Eric have raised in this discussion as the key or central points.
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1. The DNA test. I think we now agree that even in the best case for LaGuer, the DNA test would merely have failed to turn up traces of his DNA, but that the test would not have revealed evidence of another man’s DNA. As I noted above, the problem with the test was that it was overly sensitive, not that it was less sensitive than it should have been. But a test that failed to turn up LaGuer’s DNA would hardly exonerate LaGuer, particularly because, as one of the DNA experts Eric highlights said, there was no indication of semen etc. from anyone on the samples, yet no one disputes that the victim was raped. Strike One.
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2. The Four Alibi Witnesses. In the earlier motion for a new trial, LaGuer argued that his trial lawyer was ineffective because he did not call four alibi witnesses to testify. The SJC ruled on this issue in 1991. It adopted the motion judge’s finding that in fact LaGuer’s lawyer had probably made a wise decision, because one of the four witnesses could not remember the relevant dates and times, and the others’ testimony either conflicted with LaGuer’s testimony or with each others’. That doesn’t mean that LaGuer’s alibi is untrue, but defense lawyers have to make these kind of tactical decisions all the time. A devastating cross-examination highlighting discrepancies in the defense’s story might well have been worse for LaGuer (in the jury’s eyes) than leaving out the four witnesses, particularly because, according to the SJC, LaGuer had two other alibi witnesses who did testify for him, and if I remember right, LaGuer testified in his own defense. Obviously the jury credited the testimony of the victim and not LaGuer or his alibi witnesses. They heard the testimony and observed the witnesses’ demeanor; we didn’t. Now, Eric argues that the SJC grossly distorted the facts regarding the alibi witness issue. I find that extremely difficult to believe, but I haven’t reviewed the briefs or the documents that were before the court, so I will withhold judgment. Even if the SJC did get it wrong, it seems LaGuer did not call the error to the Court’s attention, and while there may be good practical reasons for his failure, as Eric argues, once you’ve waived an appellate issue, it’s gone. Nothing unfair about that. So I say, with the caveat that Eric could be right about the SJC’s supposed falsification of the record, strike two.
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3. The Insane Victim. According to the Appeals Court’s decision on direct appeal back in 1985 (you can find it at Commonwealth v. LaGuer, 20 Mass. App. Ct. 965), the victim suffered a nervous breakdown fourteen years prior to the attack; she underwent treatment until two years prior to the attack. LaGuer wanted to require the victim to submit to a psychiatric examination. The trial judge, in deciding whether he agreed, looked at the victim’s psychiatric history for the one-year period surrounding the attack. LaGuer argued this was an error, and that the judge should have considered the fourteen-year-old nervous breakdown. But as the Appeals Court noted, there was no evidence to explain why such old medical history was not so far in the past that it was irrelevant to the issue of the victim’s ability to testify truthfully. It seems pretty clear that the judge was trying to play fair. He did allow LaGuer to try to prove that the drugs the victim received while she was being treated after the rape affected her ability to identify her rapist, but the medical expert who testified was unable to say that the drugs would have had a particular effect on a person with the victim’s psychiatric history. Whether you think the judge used his discretion well or poorly (it looks to me like he drew the line reasonably), this issue has been litigated to its conclusion.
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Eric has reported that DeMartino, a friend of the victim who accompanied the victim to LaGuer’s trial, now says that the victim, both before and after the trial, would accuse black or Hispanic men on the street of having raped her. She claims that she reported these remarks to the doctors each time the victim made them. But LaGuer did not call her to testify at the time. Eric has been coy about the reasons, defering to LaGuer’s lawyers, but it seems to me that DeMartino, as the victim’s immediate caregiver and companion, must have been known to the defense, and in my mind her decision to come forward now, when she sat through the trial and must have had suspicions, is suspect. So I would say, first, that this is not evidence that LaGuer could not reasonably have uncovered at the time of trial (DeMartino was, so to speak, sitting right in front of his nose); and second, that DeMartino’s decades-long silence is suspect, particularly since she must have known at the time of trial that what she had to say could have been important to LaGuer. In any case, I don’t know enough about the psychology of rape victims to know whether the victim’s supposed behavior when she saw other black or Hispanic men is enough to cast real doubt on her eyewitness identification. So I say, again somewhat provisionally, strike three.
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4. This leaves the issue of the racist juror, which to me is the most troubling issue in the case. I think we all agree it has been litigated to his conclusion, and LaGuer is not going to be getting out of jail because of it. That being said, given the eyewitness identification, I do not see that the verdict would necessarily or even probably have been different even if LaGuer had been able to prove that the juror had been a racist and that he had consequently been denied a fair trial.
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TedF, I appreciate your willingness to apply a reasoned and logic-based approach to the issues at hand. But with respect, this is not a baseball game, so the three strikes formulation doesn’t fit. What I mean to say is that there are many more than three issues in play so I would caution you against coming to a conclusion based on your admittedly good faith efforts to to understand those. It is still my contention that given the complexity of the case and the panoply of the problems that have emerged over the years surrounding the conviction, that the proper place to resolve those would be in the context of a new trial. I do believe that the recent SJC decision was colored by the politicization of the case and that the court didn’t give enough weight to the withholding and then destruction of fingerprints from a highly probative piece of evidence – the base (not the handle) of the phone the perpetrator would in all likelihood have handled to disconnect the cord with which he bound the victim’s wrists. Simply the fact that the detective expedited the analysis of those prints shows how important they were. That the commonwealth then discarded that evidence – in spite of the fact that LaGuer’s attorney made two written requests for fingerprint evidence – seems important. My views notwithstanding, the SJC saw it differently, so it’s time to move on with regard to that issue.
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With the caveat that there are more issue out there, let me tell you what my reading of the case says about the points you raised.
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1. Which DNA expert were you referring to, Ted Kessis or Dean Wideman? One of the interesting things about the Kessis report is that his reading of physical evidence is that it is not consistent with an eight-hour assault that included repeated episodes of rape and sodomy. I hesitate to offer an interpretation of that in the context of a blog. Given the complexity of this evidence, this is an instance in which I believe the process afforded by a courtroom would be valuable. As I have often said, the DNA results would be fair game at a new trial and the commonwealth would rightly use them to build a case. In that event, a Daubert-Lanigan hearing would be the appropriate place to vet the many issues – both with regard to oversensitivity and under-sensitivity – raised by the DNA tests.
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2.The failure of LaGuer’s trial lawyer to call available alibi witnesses was only one of several instances of the shoddy job he did at trial. There is little or no indication that he applied a carefully thought out strategy to how he handled that. If you read the trial transcripts you will see that he called a disastrous witness to the stand just because he wandered into the courtroom saying he wanted to help. LaGuer’s lawyer came to trial unprepared. He asked for a continuance which was denied, and ended up arguing the case on the fly. This is something we could have a much longer discussion about, preferably over a beer. It has been written about in other places, not by me. From a legal point of view, you are right, this has been litigated and therefore not part of the current discussion.
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3. I would prefer not to refer to the victim as “insane”. She was a woman who, from what I can gather from several sources, had a set of issues we would commonly refer to as mental illness. I disagree with you that the judge properly drew the line as to the admissibility of her condition. It seems he relied on the prosecution for his information. It is now coming to light that this information was flawed.
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4. The racist juror issue is indeed troubling as you point out. As I said in a previous post, the 2-1 Appeals Court ruling that ended up putting that issue to rest from a legal standpoint was severely flawed for another reason. I offered to explain that, but so far your haven’t taken the bait. Let me know when you are ready.
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I really mean it when I say that I appreciate your reasoned and careful approach to these questions. Having said that, I would urge you to take a wider look at the case as well as looking at the issues individually.
Part One
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DNA is flawed because the materials tested were cross contaminatated. Items taken from Ben LaGuer’s apartment were handled along with items from the crime scene without regard to the fact that this ruins the test. We cannot rule out the fact that Ben’s DNA from clothing he wore is the source of the .03 nanograms of DNA they found by collectively pooling all the evidence. For reference’s sake 1.0 nanagrams is the size of a piece of dust floating in the air. I will remind you that this is the same DNA Lab and the same Lab people that are the target of a huge investigation that has undercovered more than two dozen errors in protocol. Some of these errors led to guilty men going innocent, so is it too much of a leap of logic to think that the reverse might be true?
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http://www.metrowest…
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Part Two
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The victim’s testimony is the sole point that convicted Ben LaGuer. Without her ability to identify him, the state really has no case against him. Now we understand that she was already insane at the time of this attack, suffering from delusions and schizophrenia. Ann DeMartino helps us understand what frame of mind the victim had:
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http://www.ctnow.com…
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I don’t just think it is possible that the state screwed up and convicted an innocent man, I suspect it. This suspicion grows every time I read more on this case. I encourage everyone to do the same, and to ask themselves why this case can’t get a closer review to clarify all the questions around it.
With respect, I think you’ve missed my point.
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1. On the DNA test, I say that even if the test is flawed as you claim, even a test that failed to show LaGuer’s DNA would not have proved his innocence.
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2. On the eyewitness issue, the jury heard and obviously believed the eyewitness. I’ve read your linked document, but it seems to me: (a) that we observers are not in a position to judge the jury’s credibility determination years after the fact; (b) DeMartino has not been subject to cross-examination; and (c) in any case, the evidence, such as it is, of the victim’s incompetence was available at the time of trial. You write that the victim’s testimony is the sole point that convicted LaGuer. But if the witness was believable, as the jury found, isn’t her testimony extremely damning? Aren’t you falling into the CSI fallacy if you suggest that without DNA evidence or some other “hard” forensic-type evidence, the Commonwealth had no case?
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TedF
The DNA test could have led to the actual assailant, and that is what LaGuer was hoping for. Can you see how that would have proven LaGuer’s innocence?
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The jury never got to hear the victim’s mental condition, so it is a moot point to specualte what they would have done with the information. Her condition, like the fingerprints on the phone that were proven not to be Ben LaGuer’s were also withheld from the defense.
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You need to brush up on the facts before you start arguing this case. You really don’t know what you are talking about. The woman was so crazy that every latino or black man that would pass by her would be “The one who raped” her. She also got regular visits from JFK, so is she still credible in your eyes?
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The facts speak for themselves. Read the website http://www.benlaguer… then get back to me.
The tone of your response aside, you make a good point that the DNA test could conceivably done more than show the absence of LaGuer’s DNA; it could have shown the presence of another man’s DNA. But the problem with this is that to the extent the four letters Eric cites above get into the nitty gritty of why the DNA test was faulty, they focus on the oversensitivity of the test (and in particular, the PCR method), not the undersensitivity. So I don’t see a basis in what has been cited here for any hope that the DNA test, done right, would have revealed the true culprit. Thoughts?
I never had any hope personally that DNA would free Ben LaGuer. I think we need to focus on the elephant in the room; there are five eyewitnesses that could have testified to LaGuer’s where-abouts at the time of the crime, but were never called by his defense attorney. These people still hold to their story that Ben was with them, even after 23 years. This does not seem like teenagers trying to cover for a friend, not after all this time. This point, the lost fingerprints, the mental health of the victim, the other suspect, all tie together nicely and scream for a second look, or at least a fair trial. Your thoughts?
The defense lawyer’s failure to call the alibi witnesses has already been litigated to the SJC, and LaGuer lost. Here is what the SJC had to say on the issue:
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Taking the SJC’s report of the facts at face value, it also seems that the defense lawyer made a reasonable tactical decision at trial. Is the argument that the SJC got the facts wrong (e.g., that there was in fact no contradiction between the alibi witnesses’ anticipated testimony and LaGuer’s own story)?
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TedF
TedF, Are you referring to the most recent SJC ruling or to the 1991 ruling? I can’t find this passage in the recent decision. If you are referring to the 1991 decision can you provide a citation and (if there is one) a link? If this is what the SJC said in 1991 (and I don’t doubt you) then it seems the justices, with all due respect, got key aspects of the investigation wrong. This is probably all water under the bridge from a legal point of view, but it is yet another indication of how time after time the supposed strength of the case against LaGuer doesn’t pass the smell test. Having studied the case, I can safely say that the most recent SJC is rife with factually wrong assertions lifted uncritically from the commonwealth’s briefs. This is baffling to me as a lay person because I thought the purpose of the appeals process was to evaluate whether the issue at hand (the potentially exculpatory fingerprint report that was never shared with the defense) constituted a violation of LaGuer’s right to a fair trial. Instead it seems, they were in effect retrying the case based on assertions in the commonwealth’s brief that weren’t even germane to the question at hand. As a lawyer, maybe you could educate me on the propriety of the way the SJC went about arriving at its decision. I can tell you right now, they made a mash of “facts” that weren’t even part of the arguments presented. If their assessment of the law was that withholding the fingerprint report in 1983-84 did not warrant overturning the verdict, fine. But why couch it in a rehash of aspects of the case that would more logically be dealt with in the context of a new trial?
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As for our other conversation. I moved it over to a new post. Hope you don’t mind.
The citation is Commonwealth v. LaGuer, 410 Mass. 89, 93 (1991). I’m sorry, but I don’t have a link, but any law library will have it.
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I’m not really sure what you’re asking regarding the propriety of the SJC’s decision. Maybe the easiest way to continue the conversation is for me to say what it would take to convince me (someone with no axe to grind in the case) that the SJC got the alibi witness issue wrong. I would be interested in hearing any evidence to support one of the following points:
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1. The investigator’s report did not state that one of the four alibi witnesses lacked a memory as to the relevant dates.
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2. There was no conflict between what the report said about the other three witnesses’ proposed testimony and LaGuer’s story, or no conflict among the three witnesses’ stories.
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But if the SJC and the trial judge got these facts right, then I think they reached the right conclusion.
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Now, I think you might well want to argue that even if there were sound reasons not to put these witnesses on the stand, that doesn’t mean that LaGuer’s alibi is untrue. Fair enough. But LaGuer (according to the SJC opinion) did present two other alibi witnesses, and apparently the jury did not believe them. So at least based on the information I’ve seen, I don’t consider the excluded alibi witnesses to be grounds for a new trial, even if the SJC had not already decided this issue more than 15 years ago.
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TedF
Your question is fair, but I must preface my response by saying that the quality of the alibi witnesses is not part of the current discussion. And it is only one of the many problems that have been identified with the conviction. But since you ask, here is what I can glean from the documentary record.
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I don’t have the 1991 decision in front of me. I have access to a law library but not at home. So I am going only on the passage you quoted above. The first and most obvious thing that strikes me is that your rendering of the ruling refers to a report that to the best of my knowledge does not exist.
I have in my possession every police report that was filed relating this case. One of the first police officers at the scene spoke with some neighbors, took some notes, and told them the detective would be back to speak with them some more. He never did that. The lead detective, his name was Ronald Carignan and he died of cancer in 1988, spoke to exactly three people in the building. The maintenance man who alerted him to LaGuer’s presence, the victim, and LaGuer himself. He never spoke to potential alibi witnesses. The first thing every reporter who has grappled with the case notices is that the police investigation was somewhere between nonexistent and cursory. So unless that SJC ruling is footnoted, I have no idea what “investigator’s report” it refers to.
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A report that was generated, and which I just went back to review, was done by a private investigator certainly more than three days after the attack. This was a 14-page and quite comprehensive report which names 11 potential witnesses and discusses the weaknesses that some may present, basically because they may have other issues with the law. But some of them, including the ones appearing on the YouTube clips above, are solid. This was remarked on in many of the stories written about the case in the 1980s and 1990s.
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That seems to be the answer to both your questions. If that passage in the SJC ruling is footnoted give me the details and I’ll do my best to follow up. Otherwise, that would seem to be one of the many areas in which the courts allowed themselves to be misled by prosecutors.
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So the question then is why didn’t LaGuer’s lawyer follow up on those solid alibi witnesses. Mind you, they establish LaGuer’s whereabouts for the early part of the evening, which would only be relevant if indeed it was an eight-hour attack. But the eight hour attack theory is key to the supposed strength of the victim’s ID. I went and found the private investigator who conducted those interviews. He was at the time of the crime (and still is) a retired Shrewsbury detective and former deputy police chief at UMass Worcester. In other words, someone with solid law enforcement instincts. He told me the hair raising story which I’ve written about elsewhere, that after LaGuer’s money ran out (he originally retained his attorney with GI Bill money had coming to him as a brand new veteran) the lawyer pulled the PI off the case and failed to follow up on the leads he was developing. See above regarding plea agreement and vacation in Barbados. The kicker is that LaGuer himself never got to see the private investigator’s report until two years later (in September 1985) when the courts ordered LaGuer’s original lawyer to turn it over to him. This became a document that journalists for a decade hence would use as their road map, at least in their initial research. I believe it is why so many journalists suspected, and in some cases became convinced, LaGuer had gotten a raw deal.
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If this is the report the SJC is referring to, then it is way off the mark in terms of when it was generated, who generated it, what it contained, and how it figured into the defense strategy. If this isn’t the report the SJC refers to, then they seem to be referring to a report that doesn’t exist. Again, if there is a footnote for that, please let me know.
There is no footnote in the SJC opinion. I don’t have access to any of the reports or to the record that the SJC had in front of it when it decided the case. (It’s worth noting that the SJC was not conducting its own investigation, but was considering the materials that the parties had put in front of the trial court. You could go to the courthouse and ask to see the appendix filed in the 1991 SJC case, which would show you what the SJC was looking at).
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I am not in a position to dispute what you say about the reports, which I have never seen. I do think, though, that if the claim is that the SJC somehow seriously erred on the facts of the case, the burden is on LaGuer to prove it. I also wonder whether LaGuer made an issue of this in 1991, and if not, why not?
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TedF
I can’t say with certainty what LaGuer’s response to the SJC decision was, but for the sake of argument let’s say he didn’t make an issue of this aspect of the ruling. I can make some educated extrapolations as to why he might not have. For one thing, there is no natural avenue to appeal an SJC ruling and LaGuer was an indigent inmate relying on public defenders to make his case. That, combined with the fact that the SJC ruled in his favor on another prong of his motion, the one relating to juror racism, might have (and again, I have no special knowledge of the discussions then) prompted his team to believe they were home free, so why devote resources to filing a motion for reconsideration that in all likelihood wouldn’t have gone anywhere? Most people don’t realize that LaGuer actually won at his previous trip to the SJC. The justices found that if the affidavit from a juror (see YouTube video above) alleging that racist comments were made by members of the panel before and during deliberations then the verdict could not stand. The trial court then held a fact finding hearing and the judge deployed a bizarre process and bizarre logic to deny LaGuer’s claims at that level. As I noted above, it is this history that got people like John Silber, Deval Patrick and many others involved in the case. LaGuer’s team did appeal the trial court ruling but it was upheld on a 2-1 at the Appeals Court. That ruling was deeply flawed for reasons that wouldn’t become fully evident until 2001. I can explain that, if you like. Please accept this response in the context of the caveat in the first sentence. Does this make sense to you?
It is easy to tell someone they are wrong, why not tell SpeakingOut why? Are details too much to ask? What part of the facts in the LeGuer case do you protest, or are you one of those mindless followers of the legal system that thinks just because he was convicted he Must be guilty? Please tell me it is more than that, and please elaborate so we know that is true.
I guess I just will remain not well received. The fact is that LeGuer has had more bites of the apple than most. I thought that it was not PC to impugn rape victims but then again I must be ill informed.
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I don’t know if you have ever visited a prison or have spoken to prisoners. I have. They are the masters of the con. They need to be that in order to survive. There was potent evidence of LeGuer’s case back in the day. Over time these cultists have cultivated a new twisted “reality.” If that is trollish then so be it. I am here speaking for the victim and if this pains you then too bad.
…what I have noted is that the people who are arguing that LaGuer should be afforded a new trial are arguing the merits of the case, rather than the state’s requirements to afford a new trial to someone who has already been convicted. No person, after having been convicted, is entitled to a new trial, merely on some piece of evidence–particularly if the evidence was available at the original trial.
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I’m sorry, but that’s the way it is. Defendents are entitled to process, but not perfection. And it’s very easy to be a Monday morning quarterback.
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Now, that being said, back to your regularly-scheduled wrestling match.
Raj, I am sympathetic to the value of finality in litigation, and in fact I think you and I argued the importance of finality in a previous LaGuer thread. I’d just like to point out that it’s possible to take the point too far. Massachusetts gives judges extremely broad power to order new trials:
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Just by way of contrast, the analogous federal rule requires a defendant to seek a new trial within three years in cases of newly discovered evidence and within seven days in all other cases.
I’d just like to point out that it’s possible to take the point too far. Massachusetts gives judges extremely broad power to order new trials
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The problem that you have is that Massachusetts apparently puts the bar very high. The Amiraults were unable to get new trials even though it had been known for well over a decade that the indoctrination techniques (I hesitate to call them “interrogation techniques”) that were used on the children at the Fells Acres Day School were entirely and completely fraudulent, and did nothing more than make them believe that they had been molested..
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Since that’s the case, what makes you believe that the MA courts would allow for a new trial in the LaGuer case, when (apparently) the only grounds being put forward are (i) the supposed mental illness of the victim, (ii) a botched DNA test (DNA tests really can’t be conclusively exculpatory), (iii) a finger print of someone else on a telephone (which only shows that someone else touched the telephone at some indeterminate time), and (iv) statements by some people that LaGuer was elsewhere at the time the crime allegedly occurred–which could have been raised at trial.
Raj, your post makes it seem like you are resigned to the idea that Massachusetts sets the bar very high for overturning a verdict. That may be, but that doesn’t mean that you should give up and go home. As I said earlier, this is a blog here, not a court. I tend to think Massachusetts sets the bar too high, and I don’t mind saying so. The DNA revolution in forensics has shown us that false convictions happen at an alarmingly high rate. Some people who study this put it as high as one or two percent. Some even higher. When you consider how many inmates our country has, even half a percent would translate into lots of people. Peter Neufeld of the Innocence Project is known for pointing out that each DNA exoneration tells us only how that person got out of prison. The real challenge should be to go back to study the case to see where things went wrong. Was it an understandable or even unavoidable mistake? Or should the danger signs have been evident all along? Could it be that by setting the bar too high when it comes to overturning convictions this state in effect sends a message to police and prosecutors that it’s okay to cut corners? It seems to me the appeals courts should be there to ensure that fair trials are the norm, not to find ways of justifying transgressions. The short term cost (both financial to the commonwealth and emotional to victims and their families) of retrying a few more cases might in the end seem very worth it if it prompts law enforcement agencies to be more careful about how they do their jobs. The more I study the LaGuer case the more clear it becomes to me that it is a textbook example of how police work can go tragically wrong. I invited you spend a little less time resisting that message and a little more time studying the case to really illuminate the errors. To just throw up your hands and say, “the bar is high” so nothing can be done is to abdicate the impulse to civic engagement that the blogosphere lends itself to so well.
…it’s your time to waste. What the SJC is telling you, and what you are unwilling to hear, is that you are wasting your time, unless you can come up with some substantially exculpatory evidence that could have been produced at trial. That was my point by citing the Amirault case: the fact that the indoctrination techniques used on the children were just that–indoctrination–was not known until well after their trials. And even that didn’t move the courts to give the Amiraults a new trial.
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Your other issues, especially it (the LaGuer case) is a textbook example of how police work can go tragically wrong, that can be addressed separate and apart from the LaGuer case. If you are so concerned about the police procedures, you might want to put more energy into addressing them.
who wrote this:
??? You are certainly entitled to your opinion, but you might do well not to advertise your ignorance before giving it. I stand by my point in the previous post. Studying individual cases is far more effective in understanding flaws in the system than embarking on broad theoretical inquiries. Not that they don’t have their place, but to snidely write off my research says more about you than it does about me.
Joe, you don’t raise one specific point about the case, except that LaGuer has been found guilty. Eric (SpeakingOut), on the other hand, has spent a good deal of his life researching every last detail about LaGuer’s trial and conviction.
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If you have a specific complaint with anything Rep. Story or Eric have said about the case — from the probably-botched DNA test, to the totally unreliable evidence handling, to the racism of the jury foreman, to the unheard alibi witnesses, let’s hear it.
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Otherwise you’re just not to be taken seriously, i.e. you’re a troll.
and a family and I will not waste time working for a convicted rapist of a mentally challenged woman. Charlie, as for the anonymity and all that, why don’t you just change the system. It is yours, isn’t it? I’ll tell you why, because your stats would plummet. No one but the zealots would be here and what fun would that be.
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You are such a fraud.
Anyone?
Are you the same person who wrote this: I’ve only made a cursory reading of the comments on the LeGuer (sic) case here, but…
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I’ve done more than a bit of reading about the case, but only since coming here a few months ago. I fail to see what your objection is.
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You seem to be unable to understand a number of issues. It is fairly obvious that you are not a lawyer, you don’t have the slightest understanding of legal and procedural issues, you don’t understand rules of evidence, you don’t understand what is required to gain a new trial after a jury has rendered its verdict, you don’t understand the ramifications of a trial lawyer’s tactics on the jury’s determination, in short, you don’t understand anything concerning the American legal system.
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The SJC in its Mar 2007 decision affirming the denial of a new trial for LaGuer addressed every issue that you raised (except for the now-discovered “caretaker’s” comment, which came afterward–and a defendant is not entitled to a new bite at every apple that comes his way), and they decided it against the side you are pushing. Every issue. Including the fingerprint issue. The SJC mentioned that Mr. LaGuer had resided in the apartment across from the defendants for some months before the alleged attack, and, probably (although I am not a fan of eyewitness testimony) was known to her. The SJC also mentioned that LaGuer’s defense chose not to pursue the fingerprint issue–possibly, in part, because it would have blown back in their collective faces if the fingerprints could not have been traced to the elucive Mr. Gomez. Irrespective of that, the lack of fingerprint evidence is interesting, but not exculpatory.
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And it is the lack of exculpatory evidence that resulted in the SJC deciding the way it did. Your inability to understand that is beyond me, but I’ll abide.
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BTW, if and when Cape Wind is approved, you’ll have lots of windmills to tilt at. /sarcasm.
Calm down Raj. Even though you are an anonymous poster I can almost see the veins popping in your forehead.
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When a case stinks, it stinks. You don’t have to be a lawyer see that. You seem to be suffering from thinking inside the box syndrome. My point above was simply to ask whether we should blindly accept the notion that Massachusetts sets the bar very high for overturning a conviction, or should we ask whether lowering the bar slightly might in fact be good for the overall health of the judiciary. Your earlier point that a defendant is entitled to due process, not perfection, is true. I have no argument with that based on the fact that there is no such thing as perfection in human affairs. But when an instance of imperfection becomes stunning clear (it may not be to you, but it is to many people) there is a responsibility to ask why, and what can be done to rectify it. That is what civic engagement is all about and that is how we as a society move forward.