I am only asking for fundamental fairness. Many of us charged with task involving lesser human consequences have exhibit more integrity when it comes to double-checking our work. Why are so many people in power afraid to double-check (if only once) this DNA test?
In March 2007, the SJC held that the “main issue at trial was the identity of the perpetrator.” The jury’s verdict hinged on a paranoid schizophrenic woman pointing her finger at me. After referring to the “unusual circumstances of this case,” the SJC noted, “What is exculpatory is that the Commonwealth could not place the defendant in the victim’s apartment by means of any evidence, including any fingerprint or other physical evidence.”
As for biographical notes, I have no history of violence. I grew up in a Seventh Day Adventist home. In High School, I was elected president of the Latino student body. I was arrested 21 days after being discharged under Honorable condition by the US Army. In the years of active duty, I contributed the topmost number of monthly dollars to quality for the maximum GI Bill educational matching funds. (23 years later, I have the college papers and brochure which I obtain in those 21 days of civilian life.) After the trial, the judge trial ordered an independent psychiatric evaluation for aid in sentencing. Dr. Lawrence M. Hipshman said, “LaGuer does not fit neither a psychological nor patholocal profile of a person capable of committing this crime.” (In prison, I obtained a BA degree from Boston University, magna cum laude.)
As a result of the role my case had on the 2006 gubernatorial race, the victim’s caretaker had step forward with astonishing new information. For months before the trial and years afterward, whenever Annie Demartino “went out in public” with the victim, “everybody she [saw] who was either Spanish or black, she would say, ‘that’s who did it, what’s who did it,’ and of course it wasn’t, because they were just people in the street.” This is significant because I was the only colored person in the courtroom. According to Demartino, the victim was a paranoid schizophrenic. Yet her history of mental disease was excluded from the jury because the prosecutor, currently a superior court judge, mischaracterized her condition. He claim that the victim had had no “psychiatric problems” for “at least two years prior to this incident. . . ”
When a Telegram & Gazette reporter asked one of the twelve white men who served on the jury to reflect on the trial in 2001, juror Stephen J. Martin said, “The life sentence showed the judge agree with the verdict. We saw an animal, and he saw the same animal.” This is only one example of what twelve man had in mind. These jurors would have ordered me lynched if the law had empowered them. What “animal” accused of raping a white woman would have had any legal rights that those jurors were bound to respect. (There was nothing in my biography for those jurors to degrade me to “animal” status. What they “saw” was the stench of their own hate filled hearts.) In one sworn affidavit, one juror said that another juror had immediately remarked, “The goddamned spic is guilty just sitting there; look at him. Why bother having a trial.” Jurors even joked about the sexual prowess of colored man in evaluating the violent crime.
If only for the preceding paragraphs, I hope that you might be willing to set aside a few hours to review the case file. I do not want you to make a judgment in haste. I pray that God will have already planted in your heart the seed of curiosity. I am asking you to devote your time and energies to ensure truth and justice, and not for me to be free. My freedom will be a byproduct of good people standing up for justice.
I have written Governor Deval Patrick a series of private letters, saying to him that I will not seek nor will I accept a governor’s pardon. Governor Patrick has negatively affected and chilled our dealings with state agencies. For example, in December 2006, I made a public appeal for the State Police crime lab to double-check the DNA test in light of new scientific evidence that called into question the validity of that test. As reported in the Boston Herald, Patrick issued a statement that his administration will not intervene. (12/8/06) But, in this case, nobody should assume that me asking the State Police to correct a human error is equal to me asking Patrick for special favors. That is however the recipe for sustaining a wrongful conviction.There is simply no reason why Governor Patrick should be so actively distancing himself. A historical consensus is emerging that Patrick won as much as his opponent lost the gubernatorial race. How candidate Kerry Healey conducted herself, in a mud slinging style of Republican playbooks, backfired with the electorate. This left Patrick, in a largely issue free campaign, standing to reap the governorship. When the Boston Globe recently reported on the SJC upholding my conviction, the lead paragraph said that my case “dogged Deval Patrick during his gubernatorial campaign last fall but may ultimately have helped him win.” (3/24/07) I have never been disloyal to this gifted and generous man, even after the tire marks of his political truck was quite visibly across my back. As reported in the Telegram, I was offered $60,000 then $100,000 by the Healey campaign to release to them Patrick’s undisclosed private letters. (10/31/06) I would have refused a million dollars. The soul of my father’s name would never be for sale in such a manner.
Dr. Joan Wallace-Benjamin, Patrick’s chief of staff, wrote a letter to the parole board in 1998 that I was to her “a talented writer, an intelligent advocate, and a man whose experience and life lessons make him a valuable member of the community.” All of this may have changed not on account of anything I did, but what Republicans did against my biography with their election playbooks.
For 23 years, I have been learning new ways to be trusting of God and His mysterious plan. His play is unfolding. I think that plan includes this letter arriving to your hands. In 1955, a 14 year old boy named Emmett Till was murdered in Mississippi because he allegedly whistled at a white woman. His murderers got away because nobody would bare witness. In 2007, I have served 23 years falsely in prison because I lived next door to a white woman. And those who did me wrong have done all they could to divert attention. They have had their thumbs on the scale, often fearless and quite open to the naked eyes. Police and prosecutors could have only done this because they had the ability to sense the indifference of the community.
I live with the hope that God will not have allow me to die in prison before His plan achieves its end. Once the truth is revealed, in all its light, I have no doubt that my case will be on par with those of the most egregious injustices in the annals of Massachusetts, including that of Nicola Sacco & Bartolomea Vanzetti.
Finally, I would like for you to visit the website which is devoted to posting information about my case. Please read in particular a paper entitled Errors in the Ben LaGuer DNA Analysis for a detailed and full appreciation of the case. There are a series of testimonials also worthy of your reading. After you have done all that, I would ask you to pray. From this place, I will also pray that God may reveal to you what to do next; perhaps you would desire to meet with me face to face or engage in a conversation with other members of the community. Please feel free to write to me for such references and other study materials. I would ask you and others to pray for how best to serve truth and justice, and not for how I might individually benefit.
I would guess that Martha Coakley would indeed be a good person to ask about this case. The Attorney General’s contact page tells where she can be found.
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p>By the way, you should fix your title. It’s LaGuer, not Laguer.
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p>Thanks for posting this.
pssst–Do something!
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p>I spent a lot of time out of state in the last few years, and have to admit to not having heard about this, so I thank you for posting it.
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p>John, you say
I hope your posting this letter prompts action from readers to bring this to the attention of those who might be able to help.
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p>Thanks to AlanF for posting Coakley’s contact information. I, for one, will be calling her office on Monday morning. I encourage others to do the same.
We really should ask questions about this case. I am aghast at the idea it may have been the unauthorized removal of clothing taken from Ben LaGuer’s apartment, which had nothing to do with the crime, that is now the source of the minute trace DNA they found collectively when sampling all articles pooled.
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p>We really need to be more critical in this case, not just for the sake of this possibly innocent man, but because if the same standards aren’t used on all people we don’t have an effective justice system.
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p>So many things went wrong here, it staggers me.
For the contact source. I also made the change in the title… đŸ˜‰
LaGuer’s fundamental complaint about the DNA test is that the sample was adulterated with his DNA. So it’s not clear how “double-checking” the test (running it again?) will lead to any different result. Once LaGuer’s DNA was introduced into the sample, it’s difficult to see how we can unscramble the egg.
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p>But suppose we give LaGuer the benefit of the doubt and simply throw away the DNA test altogether. Then we are left where we were after the trial: a conviction based on the eyewitness testimony of the victim, which the jury evidently believed, but no physical evidence tying LaGuer to the crime scene. This is hardly enough to exonerate him.
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p>For those who are interested, the DNA issue was discussed pretty extensively last year here and here.
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p>Thus if I were LaGuer, I wouldn’t focus on the DNA test, which even in the best case for him can’t really be exculpatory. I would focus on the supposed new evidence of the victim’s caregiver, DeMartino. In a previous thread, I noted that DeMartino was known to the defense decades ago at the trial, but that the defense did not call her as a witness. This shows, I think, that LaGuer is not entitled to a new trial on grounds of newly discovered evidence. I do, though, want to make a point that none of LaGuer’s advocates, to my knowledge, have made on BMG–if DeMartino was known to the defense, and the defense did not call her as a witness, then perhaps LaGuer has a claim for a new trial based on ineffective assistance of counsel. I don’t have an opinion on this one way or the other, but I wouldn’t be surprised if this is LaGuer’s next move.
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p>A couple of questions for John:
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p>1. LaGuer says that he has told Gov. Patrick that he will not accept a “pardon.” (I’m not sure this makes sense–I don’t think a person who has been pardoned can demand to remain locked up in jail!) But not too long ago, LaGuer did seek clemency. John, is LaGuer’s position that he will accept a commutation of his sentence but not a pardon? What’s the rationale here? And what ever happened with the commutation request?
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p>2. I notice that LaGuer is careful to say he was “discharged under honorable conditions” from the Army, rather than that he received an “honorable discharge.” If LaGuer is being precise with his terms, it seems to me he is saying he received a general discharge under honorable conditions rather than an honorable discharge. According to current Army regulations (which may or may not be identical to those in effect at the time of LaGuer’s discharge):
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p>If LaGuer is going to rely on his military service to show good character, which is perfectly appropriate, can he explain why he (apparently) did not receive an honorable discharge?
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p>TedF
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p>This is not exactly accurate. Two things could have occurred causing the same symptom; trace DNA signature. Cross contamination could have happened from articles taken from Ben LaGuer’s apartment and stored with crime scene evidence for a week in the back of a police cruiser prior to be submitted as state evidence. This same problem could have occurred by mishandling of the evidence. In 1983 and the years thereafter we cannot be certain the high standards needed to maintain purity of evidence were followed.
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p>The other way the DNA test could have been faulty is by the lab testing the wrong samples. Let’s say for argument that the strict guidelines of chain of custody were not followed on some evidence, would that lead you to wonder if the other evidence was suspect too? With all the recent uncoverings in the state police crime lab it is no big stretch of the imagination to think that LaGuer’s test was incorrectly administered either by the wrong samples being submitted or by the lab simply screwing it up.
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p>The reason this is so important is the weight the SJC gave DNA evidence prior to their last appeal decision on the fingerprints(which the state both surpressed then lost). During the submission of the appeal Reinquist was interupted by one of the justices to ask if this was simply an this was “an exercise in academics” because the DNA evidence will sink him. As a side not I find their unanimous decision most disturbing. Their opinion is based on the idea that the jury already knew of fingerprints that were not LaGuer’s. The fingerprints off the phone however were clear and could have been compared to other offenders to find the true assailant. THE SJC decision seems to allude that it was not possible for these fingerprints to have shown us the identity to the attacker. I find that short sighted.
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p>I am not sure how many people have read the reports from the experts themselves, but it is pretty compelling to me when experts tell me they have arrived at the same opinions I have:
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p>I have never seen a guilty man so concerned with proving his innocence while simultaneously unconcerned with his freedom. A pardon would leave him as a convicted felon while a clemency based on factual innocence would render him vacated of the conviction. It was LaGuer’s hope that a full review of the case would take place and that the public would become aware of the many errors that led to him being convicted of a crime he did not committ.
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p>Most people don’t know that all that keeps LaGuer in prison is his inability to lie and confess to a crime he did not committ. He could have been out ten years ago had he stepped up in this fashion.
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p>Living in Salem I am familiar with the final words of many of the Salem Witches who were hung to death in the summer of 1692. For some people not even the threat of death will motivate them to sell out their principles. Benji’s ability to remain positive and believe in us, that we will in the end both free him and retain some very important lessons behind his story, is what amazes me most.
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p>From benlaguer.com on the timeline we find the answer stated publically:
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p>1983
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p>Benji got caught smoking weed and since he was a good soldier they did not want to take away all he had earned so close to the end of his tour of duty. Almost all of us have made a similar mistake when we were teenagers, I see no big issue with his.
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p>These were great points to talk about, I hope you have more and other people are encouraged to ask their questions as well. I will be trying to cover something about Ben as often as my time allows, so look for the next article.
Thanks for the explanation of the general discharge issue and your explanation of LaGuer’s position on commutation versus pardon. I’m not sure his view on that issue makes much sense, but it’s not an important issue as far as I can tell.
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p>On the DNA issue: If I understand you correctly, you’re suggesting that in addition to the problem of a contaminated sample, which I identified in my last post, the DNA lab may also have tested the wrong sample altogether. In other words, there may be some other sample out there, and if the lab tested it, it would not find any of LaGuer’s DNA. This is, as far as I know, a new suggestion, and it seems to contradict the reports of LaGuer’s own experts. The Wideman Report, for example, asserts (on p. 6) that the prosecution’s expert pooled “all” of the samples together. Is there, in fact, another sample that has not been tested?
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p>In any case, you haven’t responded to my principal point on the DNA issue. Even if LaGuer could prove that the DNA test he requested falsely identified his DNA at the scene of the crime, he would not have proved his innocence. At best, he would have shown that the DNA test was not inculpatory. Remember, the jury found him guilty with no DNA evidence. Indeed, last year when we discussed this issue, you wrote, in response to my arguments: “I never had any hope personally that DNA would free Ben LaGuer.”
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p>You argue that the DNA issue is particularly important because of the weight the SJC gave it when it decided LaGuer’s most recent appeal from the denial of his motion for a new trial. The suggestion is that the SJC didn’t take LaGuer’s arguments about other aspects of the case seriously because it (wrongly, according to you) believed that the DNA evidence showed LaGuer’s guilt in any case. I think your position is plainly wrong. The SJC went out of its way to note “that we have not considered the fact that a deoxyribonucleic acid (DNA) test, performed after the trial at the defendant’s request and conducted by an independent forensic scientist of the defendant’s selection, apparently pointed directly to the defendant’s guilt.”
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p>TedF
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p>When the chain of custody on evidence is broken we should start from scratch and check everything. That’s where this possibility comes to my mind.
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p>Don’t forget that this is the same lab that once said evidence found at the crime scene was from a type “B” blood, the same as LaGuer’s dog tags. The blood type turned out to actually be type “O” (the victim’s) which his a far cry from “B”. Just as a side note, LaGuer’s tags were wrong, he has type “A” if I remember correctly.
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p>Back when Ben was wanting this DNA test he was hoping that the stark lack of his DNA presence at the crime scene would serve as a wake up call to both the courts and the public. The possibility was that DNA could have been found of a different person who then could have been tracked down, but that hope is lost with the way all the evidence was handled.
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p>Now LaGuer is interested in making sure people don’t put any weight in the DNA because it confuses people who do not bother reading the expert’s analasys reports. Again, I have no hope that DNA will free Ben LaGuer, only that the false image it give of his guilt will be dismissed once people better inform thenselves as to how the test was conducted and what one should derive from the results.
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p>I stand by what I said before. If the SJC brings up DNA as a damn all before they even deliberate it seems a clear indication of their mindset regardless of what they put in print as their official opinion.
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p>Allow me to ask you a question if I may. Four fingerprints that were clear and usable to compare to other suspects go unreported for 19 years, then go missing. Why should we assume that these fingerprints are not from someone else who is guilty of this crime? The SJC seems to make this leap, yet I do not. Your thoughts?
It seems to me that we basically agree on the underlying importance of the DNA issue–both of us think that even if LaGuer’s challenge to the post-trial testing succeeds, he is not going to prove that he is factually innocent; he is simply going to rebut one piece of evidence that has convinced some people, after the trial, that he is guilty. You didn’t directly answer my question whether there is any reason to believe that there is an untested sample somewhere, and I take it that as far as you know, there is not such a sample.
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p>On the SJC’s supposed reliance on the DNA test, all I can say is that in oral arguments judges often pose questions that suggest that they have a view one way or the other, and it is a mistake to think we can know the judge’s opinion of the merits of the case based on these questions. I don’t expect you to accept this on my say-so, but in any case I think the language from the SJC’s opinion that I quoted is as plain as can be.
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p>On the fingerprint issue you raise, the SJC addresses your point in its 2007 opinion (pages 597-98), and its view makes sense to me. First, the SJC notes that even if the defense had had access to the fingerprints at trial, it would not have tested the missing fingerprints, as it did not test the one fingerprint it did have. This was a reasonable tactic, given that the defense’s goal is simply to introduce an element of reasonable doubt. LaGuer’s theory was that the crime had committed by a third party, Jose Gomez. If LaGuer’s lawyers had tested the fingerprints, and they were not a match for Gomez, LaGuer’s theory would have been to some extent discredited.
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p>But maybe more importantly, mere speculation that the fingerprints may have belonged to the true assailant is just that–speculation. You write:
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p>I think you have got this important point exactly backwards. Of course the SJC does not presume that the fingerprints belong to the unknown true assailant. As the SJC noted, at trial the defendant has no burden to produce any evidence at all. The presumption is that he is not guilty. But after trial, on a motion for a new trial, the convicted defendant has to make a showing that he is entitled to a new trial. If someone who had already been convicted could force the Commonwealth to prove its case again by simply filing a motion for a new trial, justice couldn’t be done. This is particularly so in a case like LaGuer’s, where so much time has passed, and the victim has died and could not give evidence at a new trial. While I think that the victim’s testimony from the first trial would probably be admissible in the second trial, given that she has died, how could the jury in a hypothetical second trial judge her demeanor? How could she confirm or refute DeMartino’s account?
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p>As a postscript, I should tell you that I worry whether my postings on LaGuer have bad karmic implications for me. Why not just hop on the bandwagon? I think, though, that it’s important to avoid the echo chamber that in the past has developed when BMGers have discussed this case and to challenge you on points that seem to me to be clearly wrong or at least unsupported by evidence (e.g., in this thread, the contention that the SJC ruled as it did on the fingerprint issue because of the DNA test, or the contention that there may be an untested sample somewhere that would show that LaGuer’s DNA was not present at the crime scene).
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p>TedF
Sorry if I am not getting to your questions the way you want, let me correct that. No, to my knowledge there are no untested samples around. I question everything about the DNA test, and I want to see the chain of custody papers that explain where each sample came from that was brought to the test. .03 nanograms of Ben’s DNA got there somehow, but that is not enough to show his presence, only enough to show contamination, the experts explain this better than I.
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p>My thoughts are still with the presumption of innocence until proven guilty. Most people would say that since LaGuer was convicted, that is that. I see things differently. When I look at the full picture I don’t see enough to convict someone, and I wonder how a jury could have arrived at this verdict. I would have liked to see the fingerprints tested against Gomez, but that can never be thanks to poor evidence handling, bringing me back to why I don’t trust the DNA test.
Well, I guess we just disagree on these points–I think I’ve made my arguments as best I can. Always fun debating this case with you.
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p>TedF
I don’t claim to know all the facts of this case as well as someone like Eric, and in speaking with you I begin to understand what other people see in this that I don’t. I look forward to dialog about LaGuer on other aspects and other articles.
Why is it when we get a sob story from an inmate we always jump to their defense. They are ALL INNOCENT, just ask them. The process to put somebody behind bars is packed with protections for preventing a mistake. The process is very very good, but not perfect. When inmates have sufficient evidence then the system will be used to correct any mistakes and other than that please don’t waste our time with these stories. He can sit in prison while time goes bye and the world will be safer while he’s in there.
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p>http://www.abanet.org/irr/hr/f…
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p>By the way, their motto is “Defending liberty, pursuing justice”.
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p>Your points are too global to give good debate. If you want to talk about this specific case feel free.