Let me take your points one at a time.
… of course I (and you) lack any personal knowledge of what happened at the scene of the crime.
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.
…the question whether the exclusion was an abuse of discretion was a matter for direct appeal and is now settled…
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.
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’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.
Skipping back to the start of your post.
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.
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?
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.
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 am going to follow Eric’s lead and provide here one of my posts from the other thread, which I also encourage people to read.
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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).
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.
On the racist juror issue, I also want to point out that according to the Appeals Court’s recitation of the facts (36 Mass. App. Ct. 310, for those of you who are counting citations), LaGuer, who could have called any of the jurors to testify at the hearing on the racism issue, called four. One of them, Nowick, the juror who had brought the issue to light by accusing another juror of racist remarks in an affidavit, repudiated some of his affidavit, while continuing to maintain that the racist juror had said “something substantially along the lines” of the comment Nowick had recorded in his affidavit. The juror accused of racism denied making the statements. Dalzell, the foreman, testified that he did not remember any racist remarks, though he had given an interview prior to the hearing that was more “equivocal.” Martin, the fourth juror called, also had no memory of any racist remarks. The other jurors were available in court to testify, but neither side called them.
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I’d be curious to hear Eric’s account of why the hearing was flawed. I know he has made that point in the past, and maybe there’s something not reflected in the Appeals Court’s report of the hearing.
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TedF
all the jurors were supposed to testify, but the judge abruptly called the hearing to a halt before that could happen. Apparently it was a fascinating hearing written up in several places including Esquire Magazine. For what it’s worth, the Esquire reporter was among those (along with Deval Patrick) who called for LaGuer’s parole in 1998.
If I understand you, you’re saying that LaGuer’s lawyer wanted to call another juror to testify, and the judge did not permit him to do so.
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Who is your source, and did LaGuer make an issue of what you suggest was the procedural impropriety at the hearing? (Note that the Appeals Court expressly rejected the view that the judge was required to question each juror).
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TedF
is someone who was in the courtroom (not LaGuer). I’ll concede that it’s a single source and therefore not something I want to rely on too heavily. But problems with the way that hearing played out, and the logic the Appeals Court used to uphold it are many.
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As luck would have it, I have a copy of the Appeals Court ruling here. The decision contains some contorted logic which was reported on in the press after the hearing and which is noted in the dissenting opinion which is part of that ruling. The majority decision reads:
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So you have the guy on the YouTube videos posted in the Rep. Ellen Story thread saying juror X made racist comments. Then you have an obviously confused juror X saying that he didn’t say those things, but that someone else did. So looked at in totality, the testimony given at that hearing was that racist comments were made, which is the threshold established by the SJC. Be honest now, how can this be reconciled with a decision against a new trial? The Esquire article had a field day with this. Does this help you understand why Deval Patrick got involved to the extent that he did?
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I called the judge who wrote this decision. That was several years ago. He is retired. I started the conversation by asking whether it would be indiscreet to ask him about a case he once heard. His response was that there are no indiscreet questions, only indiscreet answers. He ended up inviting me to his home. His recollection of the case was hazy and he did the same thing you are doing. He reached for his law books to look up the various rulings in the case. I have to say that his overall description of how he approached the appeals process didn’t inspire much confidence in me. I’ll tell you more about that when we meet for a beer (see other post below).
The dissenting judge made the same point you make. Given the confused testimony of the jurors, could the motion judge permissibly have found that one juror made a problematic remark? Yes. Could the motion judge permissibly have found that neither “Juror X” nor the accuser made a racist remark? Yes. I think the key to the outcome of the appeal is the standard of review, which is for “clear error.” The Appeals Court doesn’t get to decide the issue of fact as if the issue were being heard in the first instance. The confused nature of the evidence is the reason I said that I believe this is the most troubling issue in the case.
to be approaching common ground here.
Why would they want all of the jurors to testify anyway? Based on the posts above, we had one who testified that X said something racist, we had X deny it, and then a parade of jurors who shrugged and said they dunno, which meant they added nothing. Your defendant was represented by counsel; if they had another juror to testify that X said something racist, wouldn’t they have put that juror on, say, right after the first witness?
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They didn’t, and so it was reasonable for the judge and anyone else to surmise that there was exactly one juror who remembered a racist comment, one who denied it, and that all of the others had nothing to add. There is no obligation for a judge to sit and listen to endless tesimony from useless witnesses just because a convicted defendant wants to put them on.
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In other words, the racist juror thing may or may not have happened. At best, it is a complete wash, and the tie goes to the prosecution after conviction.
Great discussion!
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I noticed you started off from a position of assumed guilt, and I started of with the assumption of innocence when we both first looked at the case. It seems to me there is something in that point.
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OK, as to your point about the best we could hope for out of the DNA, I think it is fair to assume that an honest man may have expected to find the real rapist’s DNA. I know if I was innocent, and I believed that a woman was raped, I would absolutely expect to find physical evidence, like hair and bodily fluids. Even the test the way it stands offers the evidence in Ben’s favor when properly explained. They found .03 nanograms collectively. You would get more of my DNA on your shirt from fives minutes of talking to someone face to face than this test found after 8 hours? To me, the DNA is a result of the items being cross contaminated like the experts listed say.
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Moving on, the testimony of the eyewitnesses that were not heard from leaves us to assume things. Again, you take the different path of logic than I do, and assume that these witnesses would not have helped.
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The next point you make is about the sanity of the victim. The nature of schizophrenia causes the sufferer to confuse similar people as the same person, among other issues. There is a person who is considered the more likely assailant, who not only was hospitalised for sexually assualting members of his own family, but who has admitted he did not. He has also gone on to be arrested for rape years after Ben was already in jail. Are you going to try to tell me that a woman with a history of Schizophrenia would be able to distinguish between two men so similar in looks that Ben’s father once mistook him for his son?
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She also had delusions of granduer where JFK would visit her. DeMartino coming forward as an expert on her condition is proof enough for me, but not for you.
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We have yet to discuss the fingerprints that were of another person other than LaGuer on the phone. How could they not be his if he were the attacker? The attacker did not wear gloves, or surely the victim would have recalled that. If LaGuer wiped his prints from the phone he would have wiped away those prints too. Those fingerprints were of the real assailant, and he got away thanks to DA John Conte making sure to bang the square peg into the round hole. In my opinion this case is about closure for the public, and not justice. But that’s me, I believe people are innocent until proven guilty, not the other way around. I believe the SJC did not take this possibility into considerartion when they said that the jury would not have been swayed by hearing about the fingerprints. I’m no lawyer, but I have been called to jury duty, and I know how this information would effect me.
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I don’t see the smoking gun in this case where I can lay my doubts aside and say to myself, “And that’s why I know for sure he did it.” If you see that, help point it out for me. If we are going to have a guy spend the rest of his life behind bars, when all he has to do is admit he did it, I think my conscience would rest easier knowing we reviewed the facts, and got the answers to some of the many questions surrounding this case.
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Like I said before, this is not just about his innocence or guilt. For me, this is also about accountability for what was done wrong. Evidence is in custody that no one had a warrant for. I would love to see that wrong addressed, among others.
This has been a good discussion! As I wrote to Eric earlier, I don’t mean to say that you and he and others are taking a ridiculous opinion. I do think it’s important, though, to avoid the “echo chamber” mentality. Is there really no one other than Regular Joe who sees problems with LaGuer’s case?
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You raise an important point. I do begin with the presumption that LaGuer is guilty, because he has been proved guilty. We’re not starting from scratch here. The burden is on you to show that justice was not done at the trial, not on me to show that LaGuer would be convicted if re-tried today. But to some extent this is a point for the courts, maybe not for the blogs. In this forum, feel free to re-try the case to your heart’s content. But as I think you know, the courts aren’t as generous, nor should they be, in my opinion.
We have fingerprints that weren’t LaGuer’s, but they didn’t make it to trial.
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We have witnesses, but they did n’t make it to trial.
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We have damaging evidence against the victim’s ability to identify her attacker, but that doesn’t make it to trial.
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We have jurors who said things along the lines of “”Look at that Goddamn spic, he’s guilty just sitting there. Why even bother having a trial?”
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We have police going into this man’s apartment and taking his belongings illegally, but that doesn’t seem to matter either, even when they prove nothing, they remain in custody AND no one seems to care.
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Tell you what, I’ll pin a note on my sleeve that says I am a loaf of bread. Does that make it true? Of course not, and the sideshow of a trial that LaGuer had before is no certanty that he is guilty.
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There was a country I heard of that had this motto:
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“It is better to let twenty guilty men go free than it is to imprison one innocent man.”
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Too bad LaGuer wasn’t born in that country, huh?
“It is better to let twenty guilty men go free than it is to imprison one innocent man.”
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You won’t get any argument from me. But a general and pithy maxim like this doesn’t help us decide how to structure the criminal justice system in practice any better than does the maxim, “litigation must have an end sometime,” or the maxim, “The jury is the lie detector in the courtroom.” We have to balance principles.
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Think practically about the consequences for the administration of justice if every criminal judgment were up for reexamination for ever and ever. All I am saying is that when we balance principles of finality and fairness practically, it’s not unreasonable to presume that a person who has been convicted of a crime and whose conviction has become final (i.e., whose appeals have been unsuccessful) is, in fact, guilty. We would be living in a bizzare world if this were not so.
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TedF
I think you are ignoring John’s point, which is a good one. He is referring to irregularities at the time of trial, not the post conviction phases. Some of the points John makes have been formally litigated, but even on those points, no one disputes that irregularities occurred. The contention is over their legal significance, which is something reasonable people can and do disagree over. So the value of your maxims notwithstanding, John’s maxim seems appropriate to his post. Keep in mind too, that John isn’t calling for LaGuer to be given a get out of jail free card. He’s only asking for a new trial.
The fingerprints fiasco is a stumbling point for me in trying to understand LaGuer’s assumed guilt. Somehow there are fingerprints that are not his on a phone he would have had to touch, and his prints are not found. The assailant did not wear gloves, or the victim would have told us so. If the assailant wiped the prints clean, there go the other prints.
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This single piece of evidence, when put in the proper light would make me wonder about LaGuer’s guilt were I on his jury. When you add Jose Gomez to the equation, and now we can tie Gomez to the victim via DeMartino, things become very opaque. Did I mention that Gomez admitted he raped Mrs. Plante? A bartender has given police a statement that claims that Gomez himself said he did it. Add to the mix his violent sexual history, and his criminal history.
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We have two men that look incredibly similar, one with a predisposition to perpetrate such an attack, and one who has never been in with the law. When do we cite Occam’s Razor?
John, as a journalist who has studied the case I need to point out that you are overstating Gomez’s “confession.” What I have been able to piece together is that a bartender in Leominster by the name of Nancy Martinez allegedly told a private investigator who happened to be drinking at the bar that Gomez had told her that he had committed the crime. The investigator relayed this information to LaGuer. LaGuer’s supporters at the time tried to engineer a situation in which they could get Gomez to say this to a more direct source but weren’t able to. So while interesting, this is third hand information and not the stuff of legal motions, or even solid journalism. I was able to ascertain that this PI did exist but that he has since died. I went to see the owner of the bar who confirmed for me that he had an employee by the name of Nancy Martinez during the appropriate time frame but that she had moved on and that he didn’t have a record of where she went. An agency with resources and investigative powers greater than what I have at my disposal might be able to track her down. But that’s old information at this point and of dubious value. Still, it adds to the other revelations coming into play. The fact that Gomez was charged with a different rape in 1998 is solid. I have all the police and court records surrounding that case and I have written about it.
(I posted my response at the other thread, here it is again)
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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.
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I was referring to Kessis. You hint at an interesting point about whether Kessis’s opinion supports a claim that the victim was not raped as she alleged, and that the identification of the rapist is not the only issue in the case. Are you willing to make that case?
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Let me know the next time you’re in Boston!
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I thought I had invited you to explain, but I see that I had only invited you to point out flaws in the Superior Court hearing, not the Appeals Court decision. So lay it on me.
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TedF
Remember, a trace amount of LaGuer’s DNA was found only when everything was pooled together. I raise this only because much is made of the duration of the crime to support the eyewitness testimony in spite of strong indications of mental illness. Kessis spoke out on (and happened to be right) on the Duke Lacross team case. So maybe this finding deserves further scrutiny. I don’t know. You be the judge if you want to.
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2. I have a meeting in Waltham tomorrow (hence I won’t be in the Internet) at 11 a.m. I expect it will last two hours or so. My email address is on my sign in page. Send me your phone number and lets see if we can set something up.
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3. Now you are getting to the thing that really perked my ears up about the case when I started following it in 2001. In April of that year a young lawyer at McDermott, Will & Emery used the Freedom Of Information Act to get LaGuer’s Leominster Police file. That raised all sorts of interesting questions which I can go into (and have gone into) elsewhere. Then in August the DNA tests on blood from the crime scene came back. There was a bombshell. A piece of blood that is listed in the original chemist’s report as being Type ‘B’ (the same as LaGuer’s) turned out to contain the victim’s DNA. She was Type ‘O’. There were seven items of blood in the original chemist’s report. In six instances the chemist reported being “unsuccessful” in determining the blood type. Then in 2001, if you put stock in the accuracy of DNA, it turned out his report was flat wrong on a basic fact. So here comes the answer to your question. LaGuer lost his appeals that went to the SJC and then back down again in 1987-1994 in large part based on this erroneous report. So when people keep saying, he’s had so many bites at the apple (and I can sympathize with that argument) what they don’t understand is that yes, he’s had many bites at the apple, but the rulings turned out to hinge on junk science perpetrated at the outset of the case. I mentioned higher in the thread that I corresponded with the pro bono committee of the firm that is currently handling the case. Their big question was the same one you are asking: Hasn’t he had more due process that anyone around? Well, yes in that his case has been to court many times. But really, no, because the “facts” that he lost on were in error. I don’t don’t know what tipped the scale for the pro bono committee, but the firm did take the case. I know what your next is going to be. Why didn’t LaGuer (or more precisely, his lawyers) make an issue of this in court? I can only offer conjecture – 9/11 intervened and then in November 2001 the fingerprint report emerged (which is what his new lawyers staked their case on) and then of course there was all the hoopla around the March 2002 DNA result. Ultimately though, that’s a question you’ll have to ask his lawyers, not me. I’m back to just being a journalist reporting what I see.
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By the way, I have interviewed chemist who prepared that report. And I’ll repeat what I said earlier about your three strikes post. There’s more. Lot’s more. If you care to open up your mind to the totality of the case I think (hope) you’ll agree that guilty or innocent a new trial is long overdue.
I’m not sure I understand your point about the blood test. You write:
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In the first motion for a new trial (410 Mass. 89), the issue was that a pre-trial test of a sock had revealed Type O secretions. At the time of trial, it was thought that LaGuer had type O blood, but LaGuer later learned that he had Type B blood. The motion judge ruled (and the SJC agreed) that this evidence was not exculpatory, because the victim had Type O blood, and the type O secretion could have come from her. So isn’t what you say (a sample had originally been tested as type B but later was determined to be type O and had the victim’s DNA in it) consistent with the SJC’s decision in 1991? Indeed, if anything, wouldn’t the report have seemed exculpatory at the time of trial, since it originally tested as type B but at trial no one knew that LaGuer had type B blood? It could be that I am misunderstanding something here, so please feel free to clarify.
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In any case, LaGuer’s failure to make an issue of this is important. There may be all kinds of reasons not to raise an appellate issue, but in my experience, when you take an appeal you raise all of the issues that stand a chance of success, because if you don’t waive them when you know about them, you waive them.
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TedF
You are right, this is complicated. The ‘O’ blood and the ‘B’ make for a very confusing trail of arguments. That’s why the August 2001 DNA test was such a bombshell.
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Let me take you through it as best as I can at this late hour. At trial in 1984 no forensic evidence was introduced. There were discussions about a scratch on LaGuer’s back, how much light there was in the apartment, the disastrous so called alibi witness I mentioned earlier, who should never have been put on the stand, and so on. LaGuer was essentially convicted on the strength of the victim pointing to him in the courtroom.
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According to a police report, as you correctly note, a sock had been found at the crime scene with perspiration on it indicating that it was from a Type ‘O’ secreter. But, for a variety of reasons you can see if you have access to the transcripts, the judge barred the prosecution from bringing this sock in. So it never made it to the jury. You are right again that LaGuer was unsure about his blood type. In prison he learned that he has Type ‘B’ blood. So in his 1987 motion for a new trial, which contained five prongs, including the juror racism issue, he raised the fact that his Type ‘B’ blood was inconsistent with the perspiration on the sock. The judge was even quoted in the Boston Globe noting the significance of this. All well and good. But at the hearing on this motion, which occurred in May 1989, the chemist was called to the stand and testified that based on his 1983 report, LaGuer’s blood type may not have matched the sock, but it did match blood found on a piece of tissue paper from the crime scene. That was very powerful evidence used in conjunction with a theory that the ‘O’ secretions could have come from the sock being used as a gag. (That theory has other problems. I have a photo of that sock and it is pristine white and looks freshly laundered, without any blood which a gag in that situation would have had. But that’s another issue.) The point is that the courts in the appeals process specifically pointed to the ‘B’ blood from the crime scene to link LaGuer to the crime. In fact, so far as I can tell, prosecutors raised it at every possible occasion thereafter. So finding out that this supposedly ‘B’ blood was not ‘B’ blood at all is very significant. It says two things. One, that the only (until the March 2002 DNA test) supposed physical link between LaGuer and the crime scene in fact wasn’t. And two, that the chemist’s report was flat wrong on a key and basic fact. A deeply troubling revelation in and of itself.
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So the answer to your question
is emphatically no. Because it wasn’t discovered until 2001, ten years later, that the one piece of evidence thought (in fact, sworn under oath) to have ‘B’ blood on it, in fact didn’t.
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Am I making sense? If not, I’ll email you the chemist’s report, which makes it very clear, as you may have gathered from reading Dean Wideman’s letter to Rep. Story.
Okay, I think I now understand what you’re saying. I think it’s important to see exactly what the SJC was deciding and why in order to show that your point does not carry as much weight as you think it does. The SJC’s primary point was that the Type O secretions on the sock are consistent with LaGuer’s guilt, even given that it later turned out he had Type B blood. The SJC went on to say that in any case, LaGuer’s lawyer’s failure to figure out that LaGuer had Type B blood prior to trial, even if it could be characterized as ineffective assistance of counsel (which the SJC doubted), did not prejudice LaGuer, because the tissue you mention had Type B blood on it. The case you make goes to the second, “no prejudice” point, but not to the main point. You wrote that the issue LaGuer raised on his motion for a new trial was:
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But as I wrote earlier, this doesn’t get you very far, because the sock secretions are consistent with the victim’s blood type.
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Also, I wonder why LaGuer thought it necessary to tamper with the evidence that you’re now pointing to:
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448 Mass. 585, 590 n.15.
Let’s start with the revelation that the chemist’s report was flat wrong on a key and basic piece of scientific analysis. Are you condoning that? That report and the chemist who generated it (whether the error was the result of malfeasance or incompetence is immaterial) became the basis of his sworn testimony in 1989. That is what the courts were going on. If the courts don’t have accurate information then how are they going to arrive at wise decisions? The point I am making is not a legal one (is it going to help his case at this juncture?) but a common sense one. Has LaGuer been treated fairly and is it really valid to say that he has had so many legitimate bites at the apple? Again, my mantra, look at the totality of the case, the big picture.
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I am going to be away from my desk for the rest of the day, back this evening. Be well.
I want to look at this case practically. If LaGuer is someday to get a new trial, he is going to have to find some issue (or more than one) that persuades a judge that justice wasn’t done the first time around. Each time we have gotten down to the nitty gritty in this discussion and talked about a discrete issue that you or John Hosty have raised (the DNA test, the missing alibi witnesses, the victim’s supposed incapacity, the racist juror, and now the faulty chemist’s test), I have tried to provide reasons why I don’t believe those issues justify a new trial. It’s certainly fair to disagree with the case I have tried to make on these discrete points, although I am not sure you have really done so with respect to the few issues that we agree the courts have not yet finally decided (e.g., the effect of DeMartino’s story, or the erroneous chemist’s test of which LaGuer and his lawyers have known for years). I am not sure it is sensible to say, in effect, “forget about the discrete issues, take a step back, and look at the whole case.” If none of the discrete issues is meritorious for LaGuer, what, exactly, is the point?
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I say this bearing in mind your point that this is a blog, not a court, and that you are now happy to be back in the role of a journalistic observer. But there is a committee of people out there in the real world who are raising money and otherwise agitating for some sort of relief for LaGuer. I also have the feeling that there may be some more potential issues that you have not yet raised in our discussions, and maybe I would find one of them persuasive. At the most practical level, if there is no issue that justifies a new trial, and if LaGuer is never going to be paroled without an admission of guilt, would these people be better off devoting their time and money to, say, an issue such as compensation for public defenders, the quality of state-run forensic testing, etc?
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What, by the way, is the answer to the question of LaGuer’s motivation to falsify evidence? If this had come out at trial, wouldn’t it have been strong evidence of consciousness of guilt?
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TedF
You might be resisting looking at the the big picture, but this post shows that you are relenting. Yes, you have been able to apply your skillful legal mind to parry each discrete question our discussion has covered. But I’m not convinced that you actually internalized, or even acknowledged the deeper significance of those issues. Some you just glossed over by using the lawyer’s technique of raising something new. Let me just use the last one as a case in point, because it relates directly to the question you raise at the end of your post.
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The issue I am referring to is the fact that the chemist’s report indicates that he was “unsuccessful” in determining a blood type for six items of blood from the crime scene and on the seventh he reported a blood type that was discovered in August 2001, through DNA, to be flat wrong. I am not particularly prone to conspiracy theories, so this puzzled me. That was around the time when I was starting to focus on the case again, before the March 2002 test. If you’ve read some of my published articles you might know that I first met LaGuer in 1991 when I was teaching in a prison education program. Feature articles had already been written in Boston Magazine and other places about the many, and I mean many, problems with the early phases of the case. So you could say that I was predisposed to believing LaGuer’s claims of innocence, though it was not something I engaged in. I did get to know him as a man and his personality did not fit that of someone I could see committing such a crime. I am by no means alone in this assessment, it includes prison guards who independent sources told have become his friends. (There are some pretty entertaining stories that go along with this.) It also includes prison psychologists who have written formal psychological evaluations deeming him “not sexually dangerous” and explicitly state that his personality doesn’t fit the crime for which he was convicted. John Silber went to visit him in prison and while not taking a position on his guilt or innocence found him to be a productive and positive member of society. As is well known, many people, some famous, have said very complimentary things about him. I still take his calls, though not as often as I used to. He is an upbeat, optimistic, caring, intelligent, funny, multifaceted human being.
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This is by way of background.
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Did LaGuer mix his saliva with that of his cell mate before giving a court ordered sample to the detective for the state police chemist to analyze? The answer, by his own admission, is yes. Incidentally, this first came out through LaGuer’s own volition in the 1994 Esquire Magazine article. Not at the 2003 parole hearing as you suggest above, but he was asked about it then and he answered truthfully.
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Every aspect, save two, of this case that I’ve studied (appellate court rulings not withstanding) point to a greater or lesser degree to LaGuer’s innocence. Those two are the March 2002 DNA test and the revelation that he tampered with evidence. The latter can clearly be taken as a consciousness of guilt. But in the context of the big picture, it was for me, an isolated incident. But still it needed explaining. The fascinating thing is that coupled with the perplexing errors of basic science in the chemist’s report it actually ended up giving me the lens through which I could better understand many other aspects of the case.
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For the sake of argument I’ll ask you to suspend judgement and accept for a moment that LaGuer really is innocent. I’ll also ask you to look a the contamination dodge in a light that is favorable to him. That is that it was the stupid, ill-considered, idiotic and above all else felonious act of a scared and ignorant 20-year-old who had been plucked out of his life three months earlier and was sitting in a jail cell because he had voluntarily allowed the police to photograph him and had voluntarily given his fingerprints when he had voluntarily gone to the station house for questioning. He was then indicted in a process where the detective flat out lied to the grand jury. Put another way, he was lashed to the tracks with the locomotive barreling down on him because he had cooperated at every step of the way. So he made a mistake of a 20-year-old kid which was stupid in every way imaginable (forensically, legally and morally) and he has paid for it with 24 years of his life.
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Okay, now you can cease suspending judgment and go back to your presumption of guilt. The aha moment I had was when I realized that this is what could logically explain the weird chemist’s report. What if the detective brought the saliva to the chemist (the paper trail clearly shows that he did)? What if the chemist saw through LaGuer’s ruse, or at least saw indications of a ‘B’ secreter in the sample he was given? And what if he at that point made his own stupid and felonious decision to make sure the forensic report reflected the plausible presence of someone with ‘B’ blood at the crime scene. I can’t see into the chemist’s heart or mind. But what the August 2001 DNA test showed was that his report was just plain wrong. When I asked him about this in a face to face interview he didn’t have an explanation.
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This is the lens through which a case and court testimony by the detective that is rife with verifiable lies started making sense to me. Every time I read the transcripts and police reports I find more inaccuracies and outright fabrications on part of the detective. His testimony that only one partial fingerprint was recovered from the crime scene being only one.
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I could go on. One point before I finish. You are right, there are other issues I could raise that I have chosen not to write about in this blog. I am still working on developing those and will write about them when they are ready. I can tell from your postings that you have churned through in your head some of the significance of the former caretaker revelations and whether they can be packaged in a legally significant way. I would encourage you to apply your obviously nimble legal mind to an exercise that seeks out both the best case for LaGuer as well as the best case against him.
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You don’t need me to do this–you are doing a good job of it yourself! (I don’t mean that snidely). If I were on Team LaGuer, I would want to have a lawyer on the team doing exactly what I am doing in this discussion, namely, playing the devil’s advocate. Someone who cares much more about the case than I do will be making exactly the points I am making much more forcefully than I am the next time LaGuer seeks a new trial. As I’ve written before, I jumped into this conversation in part to bring balance to the discussion and avoid an echo chamber. It’s easy to beat up on Regular Joe, and I think it’s important for readers of this blog (is anyone still reading this?) to know that there is another side to the case that turns out to be pretty strong.
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Of course you and I have both used some rhetorical tricks in this discussion. You’ve called me on the “three strikes you’re out” frame, which was maybe a little flip, and you point to my lawyerly technique. On your side, I would point to the use of testimonials (Deval Patrick! John Silber! Even Noam Chomsky!) in the place of evidence and assurances, once we have discussed a point, that you have much more evidence in reserve. None of this is unfair in my view.
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Is it fair to say there is no evidence this actually happened?
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I’m always amazed when I read case reports that so many suspects don’t exercise their right to remain silent or their right to have an attorney present during questioning, even after they’re read their rights. LaGuer acted as I think many criminal defendants act–nothing special here.
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I’ll look forward to hearing your new arguments when you have them ready!
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TedF
for a good discussion. It’s been enlightening.
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One more thing, I just can’t leave this hanging.
What we know is that his report was wrong and that he gave false (and very damaging) testimony under oath, two things that cry out for an explanation.
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P.S. Thanks to RegularJoe for getting this discussion rolling. Maybe that’s one thing we can be sure to agree on.
The Fingerprints found on the phone were not Ben LaGuer’s, that is a fact. We also know the assailant ripped that phone from the wall, and used the cord to bind the victim just before he left. The victim never mentions the assailant wearing gloves, and if the assailant wiped his pringerprints off the phone, why would we still have these clear prints? I believe the SJC got this verdict wrong, and this evidence, if given to an impartial jury would have made a huge difference in their opinions. Can we argue this point?
Okay, okay, one last post and then I really do have to put this aside.
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First, I think you will agree that this is one of those points, that right or wrong, has been finally decided and won’t help LaGuer.
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Second, the SJC’s reasoning was that LaGuer knew, at the time of the trial, that there was one fingerprint on the phone, and that it did not match his fingerprints. So LaGuer could and did make at trial the two arguments that mattered: (1) that there was no physical evidence linking him to the crime scene; and (2) that there was evidence that someone else’s prints were on the phone. The Court’s point was that the three additional prints would not have been more exculpatory than the evidence everyone agrees LaGuer had in his possession.
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TedF
The simple answer to this question this that the facts don’t add up. Did the SJC rule on the fingerprints, yes, and to them it is a done deal. As a citizen of this commonwealth I don’t share the same belief that justice has been served. I have tried to explain why I feel that, but I keep getting mired in legaleze. I’m no lawyer and it would take no time for you to argue my points away in court.
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The bottom line for me is that it seems we have on our hands a case where it is likely justice was hastily overlooked, and I think we owe ourselves a more careful inspection of the facts.
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I see in the paper today that those twins who were notorious bullies, and finally beat a man to death last year only got 3 to five years. Numerous people witnessed the attack. One of the differences between their case and LaGuers is the quality of the counsel representing them. Oh, and their jury didn’t view them as a “Goddamn spic”.
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To my knowledge there is no case in Massachusetts that has so many loose ends and extenuating circumstances as LaGuer’s, and I believe that is good enough reason to review the facts independently. If he was your son would you still be making the same points?