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Thursday, July 31, 2008
Final Report on Salem Harbor Boiler Explosion Released by DPS
The law requires a thorough internal and external inspection of the boiler, including the dead air space. DPS investigators were told during interviews of plant personnel and the insurance inspector that they could not recall this space being opened in at least 10 years.. The Department concluded that "[a]nnual inspection of this [dead air] space would have significantly abated the degree of corrosion in the space and observation of the current level of corrosion should have prompted further examination." Accordingly, the Department is pursuing disciplinary actions against the engineer-in charge who is responsible for the operation and maintenance of the boiler as well as the insurance inspector who is responsible for annual inspections.
Since the failure, the Department has taken the following actions:
1. On November 19, 2007 the certificates of inspection for all four boilers at the Salem Harbor plant were revoked. This action prohibited the boilers from restarting until an inspection by Department inspectors was performed and a new certificate was issued.
2. Before the boilers were placed back in to service, the Department performed a thorough inspection for each of them which included non-destructive testing and pressure tests of the boilers.
3. The Department performed an assessment on all solid fuel fired boilers in the Commonwealth to ensure that other plants with solid fuel fired boilers were in compliance with the Code.
4. The Department is forming a Boiler Task Group to consider and submit proposed changes to the Board of Boiler Rules as a result of the incident.
A full copy of the report is available on the Departments web site mass.gov/dps
This incident was also investigated by the Essex District Attorney's Office, the Massachusetts State Police, the Salem Police Department, and OSHA.
Governor DEVAL PATRICK Launches Student Loan ASSISTANCE Web Page
BOSTON – Thursday, July 31, 2008 – Governor Deval Patrick has launched a Web site to provide answers and assistance relative to student loans for Massachusetts students and their families. The announcement comes in response to the Massachusetts Educational Financing Authority's (MEFA) recent announcement that it is currently unable to make private alternative loans (as distinct from federal or private student loans) this year.
"It is critical for our students to be able to pay for the colleges of their choosing," said Governor Patrick. "I have directed my team to make available a list of resources to help students and their families locate the information they need to finance education this fall and beyond. I am also calling on MEFA to continue its outreach to the higher education and business community to explore financing options for its private alternative loans."
The Web page – www.mass.gov/studentloans -- includes information and links to help students understand the basics of student loans. It also describes many loans that are still available, and provides links to other sites that can compare different private loan rates. Scholarship information is offered as well.
"This situation serves as an important reminder for Massachusetts students and their families to investigate all possible sources of financial aid in order to pay for college today," said Frederick W. Clark, Chair of the Massachusetts Board of Higher Education. "The Massachusetts Office of Student Financial Services, MEFA, and financial aid officers at all of our colleges are standing by to offer guidance and advice on alternative sources of student loans."
On Monday, MEFA announced that it has been unable to secure funding for 2008-2009 academic year education loans. For all questions related to this announcement, please call MEFA's free helpline toll-free at (800) 809-0571 from 8 a.m. to 10 p.m. Monday to Friday, and 9 a.m. to 3 p.m. Saturday. Students should also contact their college or university financial aid staff with questions and concerns.
MEFA has made two recommendations for those seeking loan replacement: 1. Exhaust use of federal student and parent loans, and 2. contact your college or university to discuss alternative payment options, such as payment plans and private education loans.
The Massachusetts Office of Student Financial Assistance at the Department of Higher Education continues to offer need-based state grants, scholarships, tuition waivers and loans. For more information go to: www.osfa.mass.edu, or call 617-727-9420.
Wednesday, July 30, 2008
1913 Law Repeal Exposes Bigots
All that is left of the once awesome power that kept GLBT rights at bay are the meager 35 votes of people wanting to get their last fist shake in before the winds of change erode away completely their twisted version of what our society should hold valuable. We would all be wise to remember these names when voting this November on who represents us on Beacon Hill. Here are the last names of the representatives that voted to maintain a racist law that has it's very roots coming from the desire to hinder interracial marriages:
Documenting Massachusetts History in Video
With the help of an all volunteer staff, donations, footage, and lots of research we hope to be able to put together a documentary of the events that took place in Massachusetts since the inception of marriage equality. This video is a teaser for people interested in helping with the cause as well as a demonstration of some of the original footage and photos in our collective.
Was Barry Scott Sold Out by Friend?
-----Original Message-----
From: eddycut@XXXXXXX
Sent: Sunday, July 22, 2007 10:04 PM
Subject: Re: Police Brutality/ Civil Rights Violations at 40th Birthday Party Saturday, 7/14/07
To whom it may concern:
On Sat. July 14 2007 I hosted a birthday party for myself at my home in provincetown. Barry Scott was hired as a DJ .
Over the course of the evening the police came three times on the third time the police told Barry to turn off the music. After a brief explanation, as to why the party was over, the police arrested Barry Scott, in my opinion I believe it was with excessive force.
Edward Foley
Provincetown Banner 07-19-07 Pru Sowers, reporter Police Blamed for Undue Force
--Edward Foley, the owner of 4 Holway who had asked Scott to be the DJ at his birthday party Saturday night, said Scott gave a calm, 30 second speech explaining that the police had shut the party down.
"His explanation was, 'unfortunately the Provincetown police are not very happy with us now. At this point, we're not happy with them. We're taxpayers here. This should not be happening.'" Foley said. "Then (police) charged at him. When his head came up, his face was gouged, his nose was gouged and his face was bleeding."
(same statements reprinted exactly as quoted above in the 08-02-07 Banner article, Pru Sowers)
Cape Codder 07-19-07 Steve Desroches, reporter
Foley said that the police were "out of control" and the noise complaints to begin with were ridiculous as the party was quiet and small.
"The police department needs to look at how they handle themselves." said Foley.
Bay Windows 07-19-07 Laura Kiritsy, reporter Popular DJ arrested in town
--According to attendees who spoke with Bay Windows, the party was a low-key gathering of people who ranged in age from 30 something to mid 50s. Many of them, said Foley and Donovan, do not drink alcohol. They said there were no drugs at the party.
"It wasn't a rave," said Foley, "It was just, like, a real sedate party."
--But before Scott could finish his statement, the officers accused of him inciting a riot and rushed to arrest him. "The whole party was standing there shocked." said Foley.
--As they watched the scene unfold, stunned guests shouted about police brutality. "They just really roughed him up for no reason whatsoever," said Foley.
In News Weekly 07-19-07 Steve Desroches, reporter Gay Bashing or Excessive use of Force?
--The host of the party, Ed Foley, said that the police were "out of control" and the noise complaints to begin with were ridiculous as the party was quiet and small.
"The police department needs to look at how they handle themselves," said Foley. "It has nothing to do with being gay at all. I'm not going to blow things out of proportion and say it was a gay thing."
Edge 07-19-07 Kilian Melloy, reporter Questions raised about use of force
--Edward Foley, the owner of the home where the incident took place and the birthday celebrant at whose party Scott was serving as DJ, said that Scott delivered a calm explanation as to why the party was ending. According to Foley, "His explanation was, 'unfortunately the Provincetown police are not very happy with us now. At this point, we're not happy with them. We're taxpayers here. This should not be happening.'"
Then, said Foley, the officers "charged at him. When his head came up, his face was gouged, his nose was gouged and his face was bleeding."
The Banner article said that other witnesses corroborated Foley's version of events.
Edge 07-20-07 Kilian Melloy, reporter Witnesses Contradict Police reports
Said Donovan, who stayed at Foley's house until Scott and Richardson returned, around 3am, "Eddy—the host, the birthday guy—came in and said 'I think everyone needs to leave, they're not in good shape.'
Banner: 08-02-07 Pru Sowers, reporter Lynne Wants DA Probe of Police Conduct
Edward Foley, who had asked Scott to be the deejay at his birthday party on July 14th, said Scott gave a calm, 30 second speech explaining that the police had shut the party down.
"His explanation was 'unfortunately the Provincetown Police are not very happy with us now. At this point, we're not happy with them. We're taxpayers here. This should not be happening," Foley said, "Then Police charged at him. When his head came up, his face was gouged, his nose was gouged and his face was bleeding."
All this being said it is in stark contrast to his testimony as a witness for the prosecution. It is speculated that Ed Foley, the homeowner at the party where Scott was a DJ, may have changed his story to help the town, and in return Ed was recently granted a rare license to build TWO, 2 bedroom/2 bath condos. While Foley's motives may not be discrenable the license is tangible enough to make one wonder.
With the corroberating stories from other witnesses Foley's drastic change in story definitely makes one wonder. Scott has stated that he is glad the whole ordeal is over and is looking forward to putting this behind him although he does not feel that justice was served.
It seems to me that there are a lot of loose ends left here, for example, how do the police reconcile their treatment of Scott's partner? He was detained without cause, then he was left in his cell unable to stand from a back injury and forced to soil himself while police looked on and laughed about it. You don't have to look long or hard to find issues in this case worth discussing further, but it seems that this is becoming a closed case. Being an advocate for the release of Ben LaGuer I am all too familiar with the high cost of true justice in our state, and I don't begrudge Scott for deciding to call it quits. There are far too few people interested in doing the right thing than in taking care of themselves it seems.
It seems there may have been jury issues here as well:
Tuesday, July 29, 2008
House Passes Repeal of 1913 Marriage Law
The House today voted 118 to 35 to repeal a 1913 state law that prevents gay and lesbian couples from most other states from marrying in Massachusetts.
The measure, which the Senate passed earlier this month, will head to the desk of Governor Deval Patrick, who is expected to sign it into law. The move will clear the way for out-of-state couples to marry in Massachusetts, making it the second state to allow gay and lesbian couples to marry regardless of their place of residence.
"I'm glad that we finally did it," said Representative Byron Rushing, a Boston Democrat, who described the repeal on the House floor as a "question of fairness and … a question of equality."
After the vote, Rushing said he hoped lawmakers or the governor would add an emergency preamble to the bill to speed its effect and allow for September weddings.
Unlike the Senate, which quickly voted to repeal the law on a unanimous voice vote, the House debated the bill for about 45 minutes.
Supporters of the repeal called the law archaic and rooted in racism, urging fellow lawmakers to strip it from the books in the interest of equality. Repeal opponents argued for keeping the law in deference to other states, to prevent legal tangles involving couples who would marry in Massachusetts and want rights in states where gay marriage is outlawed.
"Any marriage has three willing partners: the two willing [spouses] and an approving state," said Representative John A. Lepper, an Attleboro Republican who spoke against the repeal.
Lepper said striking the law from the books could create a legal limbo for same-sex couples from out of state. He pointed to a Rhode Island couple as an example, saying they could not now seek a divorce because their home state did not recognize their marriage. "It seems if the 1913 law is repealed we would be leading ourselves into a legal nightmare," Lepper said.
The bill has also drawn condemnation from opponents of same-sex marriage, including Cardinal Sean P. O'Malley of the Roman Catholic Archdiocese of Boston and the state's three other Catholic bishops. O'Malley and the bishops want the 1913 law kept on the books for constitutional, religious, and cultural reasons. They said eliminating the law would infringe on the rights of other states to set their own marriage laws.
For the rest of this report please visit the link above.
This is yet another step in the right direction for not only equality, but for healing the division groups like Massachusetts Family Institute have fostered. Moving forward from here we should focus on how to live together in peace instead of bickering over a now closed chapter in Massachusetts history. Those of you who need to dwell can scream "Let the people vote" all you like, it will never happen, so I suggest it will be less painful for you to get over it and move on. We have mutual problems we can now put our collective minds together to solve, like feeding the hungry, and finding heat for the poor before they are actually cold. As our beloved governor says, "Together we can".
HRC: Transgenders Need Not Apply
Much like other groups that grow too big for their britches it seems that the HRC has become self aware, and self serving. Rather than take the high road and back the most marginalized of it's own people this GLBT group has decided that transgenders are holding the rest of the GLBT back from getting the equality we would otherwise have if we were to disassociate ourselves from transgenders. I join my friend Mark Snyder of the famed QueerToday blog in his disgust for this line of thinking, and I ask that those of you who have resources to donate that you find alternatives to the HRC. Equality is about being equal, not about being equal enough. I'll not be satisfied knowing that my equality came at the expense of my brothers and sisters, and I am sure I am not alone in that thought.
Minnisota Group Sues for Marriage Equality
July 27, 2008
A group of gay and lesbian couples are organizing a lawsuit similar to one in California that resulted in laws against same-sex marriage in those states being struck down. Court challenges in Massachusetts and California seem to have provided lasting marriage equality for same-sex couples, but will Minnesota follow suit?
"We have waited long enough," says Doug Benson. He and his partner, Duane, together for 18 years, are one of the pioneer couples looking to sue the state. "The point we want to make is to make sure equality is pursued wherever we can pursue it." He continues, "Because we can't sit around waiting for this to happen. We want this to become a reality here at home, and we are trying through the courts as well as through the Legislature."
For the rest of the article please click on the link provided above.
Monday, July 28, 2008
Man charged in Tenn. church shooting that killed 2
KNOXVILLE, Tenn. (AP) — Authorities on Monday were investigating why an apparent stranger entered a Unitarian church and opened fire during a children's performance based on the musical "Annie," killing two, including a burly usher hailed as a hero for shielding others from gunfire.
No children were hurt, but seven adults were wounded as frightened congregants dove under pews and ran from Sunday's shooting at the Tennessee Valley Unitarian Universalist Church, authorities said. Witnesses said some of the men present tackled a man who pulled a shotgun from a guitar case before at least three loud blasts rang out.
Jim D. Adkisson, 58, has been charged with first-degree murder and was being held on $1 million bail, according to city spokesman Randy Kenner.
Church members praised Greg McKendry, 60, who died as he attempted to block the gunfire. Church member Barbara Kemper told The Associated Press that McKendry "stood in the front of the gunman and took the blast to protect the rest of us."
"Greg McKendry was a very large gentleman, one of those people you might describe as a refrigerator with a head," said church member Schera Chadwick. "He looked like a football player. He did obviously stand up and put himself in between the shooter and the congregation."
A second victim was identified as Linda Kraeger, 61. She died at a hospital hours later, Kenner said.
Five others remained hospitalized Monday in critical and serious condition. Two others were treated and released Sunday.
The gunman's motive was not known, but Kemper said the gunman shouted before he opened fire.
"It was hateful words. He was saying hateful things," she said, refusing to elaborate.
The FBI was assisting in case the shooting turned out be a hate crime, Police Chief Sterling Owen said. Police said they would hold a news conference Monday morning.
The church promotes progressive social work, including advocacy of women and gay rights. The Knoxville congregation also has provided sanctuary for political refugees, fed the homeless and founded a chapter of the American Civil Liberties Union, according to its Web site.
Haters like this one are why I continue to reach out to our less friendly members of the community with hope that through our interaction they will see the error of such thinking. I am reminded of Jacob Robida right now, and sadly many many more incidents in our history that people would rather forget than learn from.
Every incident like this is another opportunity for the Church to step forward and give a direct comment denouncing all forms of violence against all people. Let's see if they bother commenting here or if they simply keep the status quo. Cardinal O'Maley, you have a responsibility to lead people in times like these. You're silence is the most disturbing of all. Clearly when it comes to being an effective leader in times of need you are simply a pawn of the Church, the same Church that installed you hoping to quell the outrage of parishioners in the sexual abuse scandals. What a fine job of bait and switch you have done to the GLBT community, leaving us the transferred aggression from the sins Church leadership like you are responsible for.
One question I have to ask people who spend too much time focused on the affairs of their neighbors is this; if you have found the way to happiness, why don't you seem happier than me? Perhaps if you spent less time fixated on what others are doing and spent more time on building your own inner peace you would be more like He whom you claim to follow. Happiness comes from within, not from taking your neighbor's life because you are intolerant of how they exercise their free will. Hate doesn't always take the form of violence, sometimes it comes in the form of a dirty look, or an off color comment, but it always causes harm rather than good. We can help lessen that impact by our own actions and examples.
In the silence of your spiritual leaders, who has enough love in their hearts to stand up and denounce all forms of violence with me even when we disagree on key issues in our society? Look in the mirror and "be the change you wish to see in the world." ~Gandhi
Ed Brayton has more on this.
Friday, July 25, 2008
The Patrick Administration announced today that Massachusetts will receive $ 17.2 million in federal assistance from the Homeland Security Grant Program (HSGP) for state homeland security to carry on the administration's homeland security efforts. In FFY 05, the Commonwealth received over $30 million in HSGP funding, and those funds have been steadily declining since.
While the nearly 15% decrease in funds from last year is disappointing, it was also anticipated by the Patrick Administration. Over the last year, Governor Deval Patrick has charged his homeland security team to dramatically alter its homeland security strategy so that the safety of the citizens of the Commonwealth would not be impacted by these reductions - an effort memorialized in the State Homeland Security Strategy. The homeland security strategy now incorporates focused priorities, streamlined processes and better management of people and equipment to ensure that the overall efforts provide comprehensive and unified prevention, response and recovery capabilities, whether from terrorism or natural disaster.
"We are more focused and more efficient in matching our resources and efforts", said Public Safety and Security Secretary Kevin M. Burke. "We have ensured that every purchase made with homeland security funds is consistent with a state strategy that reflects what first responders, localities and the homeland security regions need. Our reality is that we have to do more with less."
"We made the realistic risk assessment and started to make the complex choices we should expect from responsible government," said Undersecretary for Homeland Security Juliette Kayyem. "We do not want the citizens of the Commonwealth to live in constant fear of potential threats or perceived vulnerabilities. We are more secure, less scared, and that is the legacy of this Administration's approach to homeland security."
Specifically, in anticipation of today's announcements, the Administration determined that it would seek these funds for more specific priorities, ones that reflected Massachusetts' unique needs and geography. "Given the continuing threat, the wars abroad, and the real fiscal issues this country faces, we knew we had to think realistically about what this would mean for our state. We need to change the notion that more funds always equates with optimal security. Our approach – plans before purchases - is more efficient, and ultimately more successful", said Undersecretary Kayyem.
In support of the state strategy, the Commonwealth has planned the following categories of investments for this stream of funding
Enhancement of Chemical, Biological, Radiological Nuclear Explosion and Improvised Explosive Device Preparedness – Build upon and unify efforts of bomb squads and other first responders to enhance CBRNE/IED prevention and response capabilities.
Mass Care and Evacuation; Enhancement of Preparedness and Response to Pandemic Influenza – Coordinate efforts between regional and local public health and public safety emergency management. Enhancing capabilities to provide care, sheltering and services to those affected by a public health emergency.
Critical Infrastructure Assessment Methodology – Enable local, state and regional partners to undertake the multiple facets of identifying, understanding, assessing, and protecting critical assets in a consistent, coordinated and collaborative manner based on a new statewide system.
Regional Information Sharing and Communications – Manage resources and interoperable communication related activities through a statewide database managed by the Massachusetts Emergency Management Agency.
Exercising and Evaluating Plans – Continue (NIMS) implementation and enhance training and exercises in Massachusetts to ensure that planning on paper is understood and tested.
Governor Patrick's strategy of focused planning has benefited the state, and the Department of Homeland Security has taken notice. As a potential offset to the decrease in the funds announced today, the state was awarded in April nearly $22 million in new funding from the Department of Homeland Security to promote interoperability based on its successful State Interoperability Plan. This plan incorporated the needs of numerous stakeholders to ensure that communication needs were addressed in a comprehensive fashion. Massachusetts also received $3 million to enhance port security (an increase of 194%) with a particular focus on trade resumption and resiliency. This funding has gone toward planning so that if the port were to close for whatever reason, the state would know how to ensure that the economic needs of New England were identified and adequately addressed.
For the State Homeland Security Strategy, the State Interoperability Plan and other related documents, visit www.mass.gov/eops
Wednesday, July 23, 2008
Seven Greyhounds Suffer Broken Legs During Six-Day Span
Raynham, MA – According to state records obtained by the Committee to Protect Dogs, seven greyhounds suffered broken legs at Massachusetts racetracks during a six-day span in June. The records indicate that three of the dogs will require a full year to recover from their devastating injuries while another greyhound will need six months to heal.
"Every month, we receive new reports of dogs suffering broken legs and other serious injuries while racing at tracks in our state," said MSPCA-Angell President Carter Luke. "In some cases the dogs limp away facing a year of recovery and rehabilitation while other greyhounds leave their lives on the track. It is time for Massachusetts' citizens to end this cruelty and vote yes on Question 3."
Broken legs comprise nearly 80 percent of all greyhound injuries reported by racetracks to the state each year. Other reported injuries include spinal cord paralysis, death from cardiac arrest and broken necks. Over the past six years, more than 800 dogs have been injured while racing in the Bay State. In the month of May, nine additional greyhounds suffered broken legs.
"Greyhound racing is cruel and inhumane, and the injuries suffered by the dogs represent just some of the animal welfare problems associated with this dying industry," said Wayne Pacelle, President and CEO of The Humane Society of the United States. "There's no reason to subject dogs to these threats for an industry in rapid decline and that comes with a host of other social costs."
The Greyhound Protection Act is a humane proposal to phase out commercial greyhound racing by 2010, and will appear as Question 3 on the November ballot. It is supported by the MSPCA, The Humane Society of the United States, the Springfield Republican, Blue Mass Group, every major animal shelter in the state, more than 50 local veterinarians, dozens of lawmakers and other community leaders.
In addition to suffering serious injuries, dogs at commercial racetracks endure lives of confinement, kept in cages barely large enough for them to stand up or turn around for long hours each day. Also, Massachusetts greyhounds have recently died from a mysterious illness and tested positive for cocaine, an illegal stimulant.
The Committee to Protect Dogs is a state ballot question committee dedicated to passing stronger dog protection laws in the Commonwealth. Committee co-chairs include representatives of the MSPCA-Angell (www.mspca.org), The Humane Society of the United States (www.humanesociety.org) and greyhound protection group GREY2K USA (www.grey2kusa.org). For more information, call Brian Adams at 617-541-5120 or visit www.ProtectDogs.org.
Gov. Patrick Nominates Three to Court Vacancies
BOSTON – Wednesday, July 23, 2008 – Governor Patrick announced today the nomination of three seasoned family law practitioners and a highly regarded judge to four Probate & Family Courts around the Commonwealth.
Joan P. Armstrong is a family law litigator with many years of experience appearing in the Probate and Family Courts. For the past 16 years, she has been the chair of the Probate and Family Law Department at Murtha Cullina LLP, where she is currently the partner in charge. She began her legal career as a law clerk at the Massachusetts Appeals Court. Armstrong is a South Boston resident and a graduate of Drew University and Suffolk University Law School. Armstrong will fill the vacancy on the Suffolk County Probate and Family Court created by the retirement of Judge Nancy F. Gould.
Amy L. Blake is a veteran domestic relations lawyer and a partner in the Boston law firm of Casner & Edwards, LLP, where she is responsible for hiring and training new associates. She also volunteers at Senior Partners for Justice, a lawyers' group that assists self-represented litigants in all areas of family law. She previously worked as an Assistant District Attorney and Victim's Advocate in the Middlesex County District Attorney's Office. Blake, a West Peabody resident, graduated from the University of Rochester and the New England School of Law. She will fill the vacancy on the Essex County Probate and Family Court created by the retirement of Judge Edward J. Rockett.
Arthur C. Ryley, a long-time resident of East Sandwich, graduated from Hampshire College and the New England School of Law. He has practiced in the trial courts in and around Barnstable County for 21 years, and has substantial experience handling domestic relations and other matters in the Probate and Family Court. Ryley has served as the Clerk, Treasurer, Vice President, President and the Chairman of the Family Law Committee of the Barnstable County Bar Association. He has lectured at the Barnstable Police Training Academy, the Committee for Public Council Services and the 2002 Juvenile Court Judge's Conference. He will fill the vacancy on the Barnstable County Probate and Family Court created by the retirement of Judge Robert E. Terry.
"I am delighted to nominate three such talented and respected attorneys as Joan Armstrong, Amy Blake and Arthur Ryley to the Probate and Family Court, where I know they will make enormous contributions to the critical work of that Court," said Governor Patrick.
Associate Justice Angela M. Ordonez, 45, has been nominated to the Norfolk Probate and Family Court to fill the vacancy created by the retirement of Judge David H. Kopelman.
A Boston resident and graduate of Northeastern University and its law school, she has served as Associate Justice in the Nantucket Division of the Probate and Family Court since 2000, and has most recently been assigned to serve in the busy Norfolk Division of the court. Ordonez, who is bilingual, is a former Co-Chair of the Board of Directors of the Massachusetts Family and Probate American Inn of Courts.
"Judge Ordonez has consistently demonstrated her dedication to the Commonwealth's families in her tireless efforts on the bench. She has distinguished herself in every area of the court's work," Governor Patrick said.
Saturday, July 19, 2008
American Concentration Camps: Hoax or Future Holocaust?
I came across this video that a friend of mine saw first. There seems to be much information out there when you start googling things like "concentration camps in the usa" and the like, so I thought I would throw this up here for discussion. Is our government preparing for when we have had enough, or are Americans stricken with a penchant for paranoia?
For other sources of information I found this:
Are we as Americans the proverbial frog in the hot plate, where the heat is turned up slowly and we just seem to get used to anything, or is this all the ravings of anarchists looking to have a little fun at our expense? Those who like to debunk this sort of thing please step forward and bring your proof, I'd like to be able to sleep tonight! ;)
Until then it wouldn't hurt to pass this information off to those you know and widen the circle of understanding. The answer is out there somewhere, let's look for it.
Thursday, July 17, 2008
House Voting Soon on Repeal of 1913 Law
Call Your Representative NOW
Following yesterday's vote in the Senate, the Massachusetts House of Representatives is expected to take up soon the bill that would repeal the so-called "1913" law and start exporting same-sex "marriage" from the Bay State to states across the nation. This repeal would create havoc with the long-standing tradition of respecting the right of other states to define marriage as they choose. The extremely liberal state Senate voted by voice vote to repeal this important law, so the House holds our last chance to stop the bill.
Click Link At Bottom
We cannot emphasize how important it is to have your voice heard by your legislators on this bill. We have learned that House Speaker DiMasi is getting pressure to postpone the vote from legislators who do not want to vote on this matter before the November election. They know this issue will not play well in their districts. Blocking this bill in the House until after the election would give us ample time to educate legislators on the need for the 1913 law and the real, non-racist history of it.
Remember, even if your legislator has cast pro-marriage votes in the past, they still need to hear from you on this issue. Some of our pro-family Senators said they did not hear from their constituents prior to the vote.
Click Link At Bottom
With a vote pending as soon as this afternoon, please take a moment to CALL your state Representative and ask him or her to do whatever they can to block the repeal of the 1913 law. Explain to them this law is necessary to protect states' rights and that the argument that this law is a racist relic is unfounded. You can find further documentation to back up your arguments by visiting www.mafamily.org. You can also email your legislator by CLICKING HERE.
Some background about the so-called "1913 law":
Contrary to the tired charges of racism being promoted by pro-homosexual legislators against those supporting this law, the 1913 law was passed by the Massachusetts Legislature to create a set of uniform marriage laws from state to state and was in reaction to a recommendation by the National Conference of Commissioners on Uniform State laws, a group comprised of judges, professors, lawyers and scholars. Massachusetts had already become the second state to lift its ban on interracial marriages in 1843, a full 70 years before the passage of the 1913 law.
While some states may have used the uniform state laws to prevent interracial marriage, that was simply not the case in Massachusetts. The Massachusetts Supreme Judicial Court noted in their ruling upholding the law that "it is not the province of [the SJC] to dictate to other States how to construe their own specific statutes and public policy when confronted with the issue whether to recognize a same-sex marriage performed in Massachusetts." The court also found that there was no credible evidence that the goal of the 1913 law was to ban interracial marriage.
Even in the SJC's Goodridge ruling that opened the door for same-sex "marriage," the majority cited the 1913 law to respond to the claim that legalizing same-sex "marriage" would allow persons in other states to use Massachusetts' marriages to try to force recognition of a marriage that is illegal in their own state.
The pressure is on from both sides, but we have the truth as our advantage. MFI and Kris Mineau have failed to convince the public that equality is wrong, and with that in mind many people ARE calling their representatives and reminding them how they should vote. Please make every effort to tell your friends and family about this important and historic vote.
As a side note, the 1913 law was originally enacted by other bigots who wanted to keep black people from getting married in Massachusetts if their own state would not recognize the union. Can someone tell me again how the struggle for black equality and ours are not similar when we have the same law being used against us? For more on this issue visit MassMarrier's article.
Saturday, July 12, 2008
By Adam Fogle | July 10, 2008 - 2:51 pm
This may come as a surprise to many South Carolinians, but your tax dollars are being used to target gay travelers from across the pond.
The Palmetto Scoop has learned that the Department of Parks, Recreation and Tourism — a state agency overseen by the Gov. Mark Sanford's office — is spending an undisclosed amount of its nearly $14 million advertising budget to take part in the "So Gay" campaign, an effort launched in London, England, by the gay marketing agency "Out Now" to lure homosexual tourists to South Carolina and five U.S. cities.
Out Now is dubbing it "the gayest ever mainstream media advertising campaign" in London.
"South Carolinians will be irate when they learn their hard earned tax dollars are being spent to advertise our state as 'so gay,'" Sen. David Thomas (R-Greenville) told The Palmetto Scoop. "South Carolina is a wonderful, family friendly destination not a Southern version of San Francisco. This campaign goes against our core values."
Thomas said he would be calling for a comprehensive audit of PRT, an agency in the governor's cabinet.
State Rep. Greg Delleney (R-Chester), echoed Thomas' concerns, citing questions over "whether or not the governor or anyone in charge at PRT authorized this expenditure."
"It's simply unbelievable that PRT would be using our tax money to promote the homosexual lifestyle," said Delleney.
Sanford spokesman Joel Sawyer could not be reached for comment.
For the full story click on the link above.
This is one of the reasons I fight for gay marriage. It is not just for the right to be married as equals to our neighbors, it's a step in the direction of realizing that we ARE equals, and deserving of the respect our actions and intents afford us. Rep. Delleney's remarks show true bigotry, using the word "homosexuals" in reference to the GLBT community. The discrimination we suffer goes well past any form of free speech, leaving us with a government where South Carolina's representatives don't even have the common sense to see us as worthy tourists. I'm not sure what type of trouble they expect GLBT people to cause while leaving their tourist money there, it seems more that the irrational fear factor has taken over once again, leaving us with social policies made off emotion rather than logic.
People are denied jobs, housing, services, they are even harassed, beaten, and murdered all because of their sexuality. Where is the public good that comes of this behavior? This is why I fight for gay marriage. It is only by the government's impartiality on this matter that the people who feel threatened by diversity will challenge themselves to look at their neighbor as other than a stereotype. One such line in the sand we can draw is the right to marry whom you love and have your relationship recognized by our government as equal to other people's relationship. We all are deserving of the protections promised us by the Constitution regardless of our differences, and those who say otherwise are doing so to promote their own agenda, and not justice.
I could easily turn around and say that I don't want my tax dollars going to promote heterosexual tourism, but how strange would that sound? When you try to take the same argument and put it into another perspective it becomes clear this is just another fine example of bigotry, and how far we have yet to go.
Thursday, July 10, 2008
Zero Percent?
I find this article entitled:
Homosexual Researchers "in Denial":
Incidentally, I thought I knew how to interpret fundy scare quotes, but why "in denial" needs quotes escapes me.
Anyway, the story starts with this the usual appeal to authority:
A West Coast psychologist believes pro-homosexual researchers are not being honest regarding children raised in homosexual homes.The harm ?
Dr. Trayce Hansen took a close look at studies done by homosexuals in which they concluded that children suffer no adverse affects when raised by homosexuals. But she contends the studies prove there is harm.
According to Hansen, the studies actually reveal that boys raised by lesbians are more feminine than other boys, and girls raised by lesbians are more masculine than other girls.I guess she might be right, but I wouldn't know. I don't even know what she means by masculine and feminine, but apparently lesbians have awesome power. The not only feminize boys, they masculinize (is that a word?) girls.
Or maybe they just treat boys and girls the same.
Young adults who were raised by openly homosexual parents were more likely to engage in homosexuality and to later self-identify as bisexual or homosexual -- and it's quite a stark difference"Now we're getting somewhere. STARK DIFFERENCES!!!
She notes that 24 percent of children raised by homosexuals or lesbians had experiences with the same gender, while zero percent raised by heterosexuals leaned in that direction.Hmmm.
"Zero percent raised by heterosexuals leaned in that direction."
So, no gay people have straight parents?
Wednesday, July 09, 2008
Kennedy Returns to the Senate
The air of admiration is both palpable and well deserved. Senator Kennedy went on to cast a key vote in favor of the Medicare Bill and was able to celebrate the victory of it passing. As reported in the New York Times:
"Aye," Mr. Kennedy said, flashing a thumbs-up when the clerk called his name. He was one of 69 senators to vote in favor, meaning that the bill has now a veto-proof majority in both Houses.
Sunday, July 06, 2008
Personal Accountability
The real question that hides behind other premises on the subject of gay marriage is if this liberty, when used, causes social harm. The other side of that coin asks by what measure do we gauge this?
"The Bill of Rights protects the freedoms of speech, press, and religion; the right to keep and bear arms; the freedom of assembly; the freedom to petition; and prohibits unreasonable search and seizure; cruel and unusual punishment; and compelled self-incrimination. The Bill of Rights also prohibits Congress from making any law respecting establishment of religion and prohibits the Federal Government from depriving any person of life, liberty, or property, without due process of law. In Federal, criminal cases, it requires indictment by grand jury for any capital or "infamous crime," guarantees a speedy public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy. In addition, the Bill of Rights states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"[2] and reserves all powers not granted to the federal government to the citizenry or States. Most of these restrictions were later applied to the states by a series of decisions applying the due process clause of the Fourteenth Amendment, which was ratified in 1868, after the American Civil War." -Ref
"...prohibits the Federal Government from depriving any person of life, liberty, or property, without due process of law..."
Let's review Due Process:
Due process (more fully due process of law) is the principle that the government must respect all of a person's legal rights, instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. In the laws of the United States, this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions.
Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions...."[Murray v. Hoboken Land] In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that "we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights."[Chapman v. California]
In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[Herrera v. Collins]
John Stuart Mill, in his work, On Liberty, was the first to recognize the difference between liberty as the freedom to act and liberty as the absence of coercion. In his book, Two Concepts of Liberty, Isaiah Berlin formally framed the differences between these two perspectives as the distinction between two opposite concepts of liberty: positive liberty and negative liberty. The latter designates a negative condition in which an individual is protected from tyranny and the arbitrary exercise of authority, while the former refers to having the means or opportunity, rather than the lack of restraint, to do things:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. – John Stuart Mill
What you are left with after the legalese is done flying around is a system that guarantees we will be judged as individuals, not as a class of people, and that we will be measured under the "harm principle" when curtailing liberties, which does not assume harm where none is proven. Boil that down a little further and you simply get personal accountability. I am accountable for the things I do, just as my neighbor is. We are both assumed innocent of any accusations made against us while expecting the accuser to provide proof beyond a reasonable doubt. This accusation has to provide a harm factor within it strong enough to countermand the strong protections over individual liberties the Bill of Rights affords.
There is overwhelming proof that a few radical opponents of equality are clinging to their loosely woven lies and the ignorance of the uninitiated. We as a society have the responsibility to call out these lie and hold people accountable for their actions. Our society will only be as good as the effort that is put into it. As Rev. Dr. Martin Luther King Jr. once said:
"Discrimination is a hellhound that gnaws at [minorities] in every waking moment of their lives to remind them that the lie of their inferiority is accepted as truth in the society dominating them."
It is fair to ask someone to be accountable for their actions. It is unconscionable to deny someone their civil rights because of who they inherently are. It is not just discrimination, it's oppression. Having failed in all cases to prove the need for protection against same sex marriage, and having failed also "harm principle" we are left only with the obvious fact that the inequality now recognized must be corrected. We must admit to ourselves we are no longer truly following the fundamentals that make America so great, or live the lie a little longer. I vote for the former!
Ben LaGuer: Obsessed or Innocent? Here are the Facts
Errors in the Ben LaGuer DNA Analysis and Other Issues Affecting the Verdict's Integrity
DNA testing did not clear U.S. Army veteran Ben LaGuer of a 1983 interracial rape, as it should have, because Worcester County prosecutors provided the wrong samples to the State Police Crime Lab. Naturally, the analysis could not lead to a correct result. Forensic Science Associates (FSA), in 2002, derived its conclusions based on DNA taken – not from crime scene evidence – but evidence taken from Ben LaGuer during the police investigation.
Why did prosecutors deliberately obstruct DNA proof of LaGuer's actual innocence? It is important not only because no other evidence links him to the crime, but because this case was a factor in swaying the historic 2006 gubernatorial race. In 2007 the state highest court held "that the commonwealth could not place the defendant in the victim's apartment by means of any evidence, including fingerprints or any other physical evidence."
According to Telegram columnist Dianne Williamson, Worcester District Attorney John J. Conte's "penchant for paranoia and secrecy is just plain weird, and sometimes irresponsible. His office is triple-locked and stacked with television monitors." (1/26/06)
This secrecy led defense attorneys not to recognize that the DNA used in the testing derived from articles collected from LaGuer and his bedroom during the police investigation, not DNA extrapolated from actual crime scene evidence. Any assertion that the DNA test "further linked him to the rape" is thus inaccurate. The Telegram articulated LaGuer's need for a forensic review;
"Several forensic experts have said the minimal amount of genetic material identified in the analysis is consistent with contamination. The state police did not perform the analysis in Mr. LaGuer's case, but the lab was responsible for preparing and labeling the samples for testing. Mr. LaGuer says hairs taken from a jersey he was wearing when he was arrested were mislabeled and pooled with crime scene evidence, resulting in the positive DNA match that led many of his past supporters away. He cites testimony from the lead detective in the case, who described Mr. LaGuer donning a jersey when being questioned about the crime. 'How could I be wearing the shirt on Friday when I was arrested, and 18 years later the shirt is labeled as found at the feet of the victim three days earlier?[1]
Dr. Daniel L Hartl, a prominent DNA expert at Harvard, after examining LaGuer's DNA test history in 2005, said, "...(if) articles taken from LaGuer and/or from his bedroom were mislabeled and mixed together with actual samples taken directly from the victim, then the DNA evidence is of no value, even if the sample were mixed by mistake."
The Boston Herald subsequently reported that "forensic reports linking him to the crime are invalid because authorities matched his DNA to samples taken from his apartment – not from the original rape kit. Several DNA experts hired by LaGuer's team have bolstered his claim."[2]
DNA Evidence Was Mishandled and Contaminated
Leominster Police Detective Ronald N. Carignan testified that, three days after the crime, LaGuer was taken into custody donning a sport jersey shirt.[3] The 1983 lab notes indicate that "3 hairs" were collected from this jersey and "mounted" on lab slides.[4] A State Police trooper collected the only "yellow cotton jersey" related to this case in May 1989 from the local police. [5] However in May 2000, the jersey was mislabeled as located "at the feet of the victim."[6]
In a June 2000 affidavit, DNA expert Peter Neufeld says he was "...told there is only a single hair that has semen on it. The swabs and remaining slides have tested negative for the presence of sperm." In August FSA confirmed in a report what had been told to Neufeld: "Since no spermatozoa and no male DNA were recovered from Plante vaginal/rectal swabs, this evidence is not relevant to the genetic identification of the Plante assailant."[7] In September the hairs prepared from the Jersey were sent to Cellmark, an independent laboratory chosen by both defense and prosecution, where "cellular material" was found. [8] In November Gwen B. Pino recommended that those hairs be tested together with the victim's sterile swabs.[9] In February 2001, the Court ordered exactly that protocol.[10]
Why would Pino recommend that DNA collected from LaGuer's own hair and other personal articles collected from LaGuer's apartment prior to his arrest, such as the "interior crotch" of his underwear, be tested together with those known sterile swabs?[11]
In 1989 testimony, State Police analyst Mark T. Grant admitted that in 1983 "I might run two or three cases at once in order to save time." [12] In response to a legislator, Ms. Pino said "the crime laboratory did not have a manual governing the handling of evidence in 1983."[13] When Grant intermixed the victim's sterile swabs with the swabs from the "interior crotch" of LaGuer's own underwear, along with the hair slides from his jersey,[14] the DNA gene "pool" (0.03 billionth of a gram)[15] became contaminated. In fact, an analyst from FSA mixed his own DNA with the victim's DNA by "speaking near or over" her samples during testing.[16]
Contrary to Carignan's police report,[17] search warrant[18] and testimony[19] that no articles were ever seized during a search of LaGuer's bedroom, in April 2001 newly disclosed reports showed that Carignan had taken "Underclothes from Suspect" and "Underpants-suspect" to the lab a day after LaGuer was indicted.[20] When eight tube socks, from LaGuer's room[21] appeared at the State Police,[22] this proved that the trial judge was misled about the origins of these articles.[23]
On the 14 July 1983 search warrant application for LaGuer's home, Carignan claims "her assailant came into the apt only wearing white tube type socks and other than that was totally nude. This investigator found 1 sock that was white and had black and yellow stripes at the top…The victim, Lennice Plante, stated that she 'has observed the assailant go into the adjacent apt several times."
When describing what articles he sought to seize, Carignan noted the tube sock as the only article the culprit had left behind.
In August, Carignan submitted to the State Police "underclothes from suspect" that included underpants, eight (8) tube socks, and a bath towel. These articles are the same Carrigan had observed in LaGuer's bedroom. Carignan denied removing any articles from LaGuer's apartment. But, the mere presence of LaGuer's underpants, jersey and multiple tube socks at the State Police undermines Carignan's truthfulness. (Carignan denied seizing these articles because he had no legal authority to seize them.)
In 1984 prosecutors never disclosed exactly what articles Carignan submitted for analysis. This left the defense in the dark, unable to respond to the false claims that no personal articles had been seized from LaGuer. [24]
James Lemire, LaGuer's Trial Prosecutor, Who is currently a Superior Court Judge, Committed a Criminal Act by Discarding a Vital Article of Evidence
On May 17, 1989 State Trooper William Kokocinski collected the requested underwear from the Leominster PD, two (2) pairs of women's panties and one (1) pair of men's underpants.[25] However, five days later, ADA James R. Lemire only put out the two (2) pairs of panties.[26] Lemire's illegal disposal of LaGuer's underpants, for the likely purpose of covering its illegal seizure, is a matter for the state Judicial Conduct Commission. [27] (Lemire was appointed to the Superior Court by then Governor Mitt Romney in January, 2007.)
LaGuer's Request for DNA Analysis Repeatedly Denied
In May 1989, Judge Robert V. Mulkern denied a request for DNA testing.[28] In November 1996, Judge Herbert F. Travers denied a lawyer even access to the samples for DNA testing.[29]
In September 1999, lawyers found the evidence with their tamper-proof seals broken and in disarray.[30] (These seals were affixed, by court order, across the boxes in May 1989.)[31]
One Awesome Deception by John J. Conte
In December 1999 Robert Cordy, a defense attorney wrote the district attorney to set up DNA testing.[32] In response, DA Conte assailed Cordy in a press release[33]:
"At best, the unsanctioned handling of the evidence by Mr. LaGuer's attorneys has disrupted the chain of custody of the evidence in the case. At worst, evidence may well have been contaminated beyond the point of obtaining valid test results."
The legal battle for LaGuer's DNA testing had only begun. In April 2001, 14 months later, the defense learns that prior to them ADA Sandra Wysocki had sought and found the rape kit and "also Benjie's underwear" in July 1998.[34] Conte's next press release succeeds only in deepening the mystery of Wysocki's probe[35]
"During the argument before the Appeals Court regarding the absence of women on the jury, Mr. LaGuer claimed that the Commonwealth had lost the physical evidence in his case. To investigate this claim, the prosecutor checked with the Leominster Police Department, who confirmed that all the evidence from the police department had been moved to the Clerk's Office after the 1989 blood-type hearing."
This is false. Wysocki's letter to police is dated July 8, 1998. The hearing on the absence of women from the jury was held December 11, 1998,[36] five months after Wysocki had already located "Benjie's underwear" and the rape kit.[37]
Judge in DNA Proceedings was Ex-lawyer to Victim's Family
In the winter of 2000, after LaGuer raised tens of thousands of dollars to have a DNA, Judge Timothy S. Hillman was given the responsibility of overseeing the test. Hillman, an ex-lawyer for the victim's family,[38] clearly should have stepped aside from this case. In 2002, when LaGuer's DNA was found in the evidence, Hillman never responded to a request for a hearing to determine why the State Police had underclothes illegally taken from LaGuer's apartment. (Hillman did not want to expose the police to new criticism.)
Chain of Custody of Evidence in Total Disarray
Instead of establishing a provenance (a history) for each article of evidence prior to DNA analysis in 2000, the initial crime analyst Mark T. Grant[39] and the emergency room physician, Dr. William C. Siegel,[40] were shown only photographs and asked if these articles appeared consistent with those from 1983. Some samples were invisible as they were still in their bags. (The National Research Council's The Evaluation of Forensic DNA Evidence Report (1996) emphasizes "the potential of DNA evidence and the relative ease with which it can be mishandled or manipulated by the careless or unscrupulous, the integrity of the chain of custody is of paramount importance".)
DNA Evidence Contradicts Claim of Rape
At FSA, eighteen years after the crime, Dr. Ed Blake began work without any reason to doubt that the victim's sterile swabs could be combined, for optimal test results, with the cellular material Cellmark had identified on hairs from LaGuer's jersey. In fact, both Cellmark and State Police had agreed with this course of action.
But in a courtroom full of lawyers with forensic experts on standby, in 2001, nobody recalled Carignan's trial testimony that LaGuer was wearing that jersey on the day he was taken into in custody.[41] The victim's sterile swabs should have never been rigged with LaGuer's hairs, because once these samples were combined, the gene sequencer would have spurt LaGuer's genotype if only from 0.03 nanograms on his hairs.
At FSA, Blake was dumbfounded from the outset. "This is very difficult evidence, there's no question about it."[42] There was no DNA in swabs that routinely sprung thousands if not millions in other sex cases. (Q-tip swabs, because of their absorptive quality, are fertile sources of biological evidence.) If FSA had known that Lennice Plante was alleging a rectal rape of eight hours, they might have flagged that her rectal swabs did not contain a single blood or sperm fraction. The vaginal swabs, expected to yield copious sperm, showed a "rare yeast" infection that was plaguing her in July 1983.[43] A battery of tests, conducted during her hospitalization, showed her infection so advanced that her nurse noted Plante was discharging "yellowish" pus.[44]
A separate swab, one found in the container along with her original, untested pubic hairs, also sprung no blood or sperm faction.[45] i.e. no male DNA.
"There is no indication of semen, sperm, or epithelial cells associated with a male donor on either the vaginal or rectal samples," says, Dr. Theodore Kessis in his 2005 report. "These findings contradict the alleged facts of the case, namely that the victim was raped repeatedly over a period of many hours."[46]
The absence of DNA from blood on the victim's rectal swabs, where her own blood DNA fractions should have been found in copious levels, is proof that she has no rectal lacerations consistent with the assault she alleged.
"Another disturbing aspect to LaGuer's conviction is the physical evidence contradicts Plante's claim that she was sexually assaulted vaginally and anally, much less over an eight hour period of time," says Hans Sherrer, President of the Seattle-based Justice Institute, in his 2005 independent investigation of LaGuer's DNA test. "Consequently, the evidence supports that LaGuer was convicted of an aggravated rape that never happened," Sherrer concludes.
"Had LaGuer's lawyer in 2002 brought these facts to Dr. Blake's and Mr. Keel's attention as he should have at the conclusion of the blind test, it is hard to imagine that Dr. Blake could have made the highly charged and, in my opinion, uncalled for comments that he made," says Dr. Lawrence Kobilinsky. [47] "This is especially true because the miniscule level of DNA the FSA report relies on for its conclusions is of an amount that could be consistent with contamination. Dr. Tony Frudakis says if the swabs were on the same State Police crime lab counter as LaGuer's underwear in 1983, then the DNA found is a likely false positive. Dr. Bruce Jackson says, "The DNA testing performed by Dr. Blake was not conducted optimally and his data should be carefully reviewed and reevaluated." Dr. Edward J. Imwinkelried says, "It will be a mistake to make this case sound as if it turns on technical DNA issues.")
The DNA Expert Misinterprets DNA Result Due to Breakdown in Legal Process
In March 2002, Dr. Ed Blake said that a cop could not have deliberately framed LaGuer by planting 0.03 nanograms of DNA in 1983,[48] but he ignored that LaGuer's hairs and underwear were inadvertently run together with the victim's sterile swabs.[49]
One day after the result, David M. Siegel told the Boston Globe, "The result doesn't afford a basis for filing a new trial."[50]
Instead of reviewing the analysis with Blake, Siegel left for the Mediterranean. Upon Siegel's return a letter from Blake awaited him, asking "why we pursued a time consuming and expensive investigation of these spermatozoa on Mr. LaGuer's behalf if he had prior knowledge or belief that this evidence was untrustworthy."[51]
However, ample evidence of sample intermixing was disclosed to Siegel in April 2001.[52] In fact, Conte first said these samples were "contaminated beyond the point of valid test results" in a 2000 press release.[53]
Prosecutors Distorted Results of DNA Test
In May 2004, prosecutors falsely argued that LaGuer's DNA was "found on cotton swabs used to obtain evidence from the victim's vaginal, rectal, and oral cavities."[54] According to FSA, the swabs revealed no DNA.[55] "Since no spermatozoa and no male DNA were recovered from Plante vaginal/rectal swabs, this evidence is not relevant to the genetic identification of the Plante assailant."[56] In 1983, even the crime lab found no sperm on either the swabs[57] or slides.[58]
In denying a new trial Hillman ruled that LaGuer's DNA "matched the male profile found in 'pooled sperm,' including 'sperm fractions' taken from the victim's vaginal, rectal, and oral cavities."[59] Hillman cited FSA Report 2 to support his conclusion. [60] A year after that report, however, Barry Scheck told the AP "I'm tremendously optimistic. So far all the tests coming back seem to be coming back in his favor."[61]
At the Supreme Judicial Court, in 2007, prosecutors hammered on LaGuer's 1994 admission that he had hampered prosecutors from collecting a saliva sample one decade earlier. According to the May 1994 issue of Esquire magazine, where this saliva affair was first published, if LaGuer had only "given officials a legitimate saliva sample, the result would have provided evidence of his innocence rather than a false impression of his guilt." This is true because the culprit's tube sock revealed ABO O-Type from "factors in the perspiration deposited on the sock." As a B-Type, LaGuer would have been instantly excluded.
A Rogue DNA Expert Grandstands to the Media
In July 2000, Ed Blake told the Telegram that he envisioned testing the samples in a manner where one "divides[s] the evidence in half, if that's possible. You do the work blindly, you publish the work blindly—before you do the reference sample—then you do the reference samples. And the guy's either in or he's out." (7/16/00)
As defense attorneys sought to comply with Blake's request for a blind testing, they never informed him that the samples might be "contaminated beyond the point of valid test results." According to FSA, "These findings fail to support Benjamin LaGuer's claim of factual innocence in the rape and murder of Lennice Plante."[62] (She was not murdered.) This statement is but one error, but reflects the laboratory's unfamiliarity with the case history.[63]
By September 2001 FSA had completely failed to extrapolate DNA from the rape kit. Blake told the Telegram, "We haven't made any progress in being able to provide genetic information about a bad guy." (9/27/01) But Blake was undeterred. He described his strategy to the Telegram, which a reporter described as Blake "would need access to all of the evidence for there to be even a chance of definitive findings in the case." (09/27/01) Blake's idea to combine all the samples, in a single grand genome sequencing cycle, was still fraught with uncertainty. "Quite candidly," Blake said, "I have my doubts if that's even going to be adequate. But we're not going to know if we don't try." (9/27/01)
At that point lawyers began a search for additional samples, including the culprit's tube sock, for FSA to proceed in its hunt for DNA. "Once the evidence is combined and DNA extracted," the Telegram said, "then both sides can conduct independent analysis." (9/27/01)
This idea to combine all the samples would not have backfired if only Blake and Siegel had appreciated the chain of custody. Even a Telegram reporter showed greater acuity when noting, "Police and court records show the circuitous route the crime scene evidence took from its collection in 1983 to DNA testing almost 20 years later." (2/15/04) Neither Blake nor Siegel ensured that each sample was linked to the crime scene. Once Blake ran these samples through the gene sequencer, as if packing a washing machine with white and colored clothes, there was no way to tell if LaGuer's DNA came from his own samples (illegally seized from him and not relevant to the genetic inquiry) or the rape kit. Since the rape kit was already known to be sterile for male DNA, the only samples which could have spurt male DNA were those from LaGuer himself.
After the DNA result, Ben LaGuer pointed to a series of articles taken from him and his apartment during the police investigation. Instead of reviewing LaGuer's claim, Blake refused to relent. "The time to make these claims was on Day One," Blake initially told the Telegram. "If this is some concocted thing, why did we spend all this time and effort on concocted evidence? It's only concocted because Mr. LaGuer didn't like the results of the testing." Blake adds "If this 'frame job' was evidence in the police reports, why did he waste the good will of all the people who have supported him with money? Why did he waste my time? Why did he waste David Siegel's time for three years? Nothing could be more transparent." (3/31/02) "Nobody took that position prior to the testing," Blake told the Telegram. (2/15/04)
But in a March 2000 article, reporter Martha Akstin wrote in the Worcester Magazine that "clumsy handling of the evidence by his own attorney' may have damaged a convicted rapist's chances of proving his innocence through DNA testing." She quoted ADA Joseph Reilly, "I am informed that the manner of handling such physical evidence may affect the accuracy and integrity of the scientific testing conducted on that evidence." (3/8/00) In April 2001, later, Boston Globe columnist Adrian Walker cited prosecutors in his column as still complaining "that transporting the evidence to a lab for testing could contaminate it, and that it might have been open to tampering over the years." (4/9/01) The boxes had their tamper-proof seals peeled off. Articles from LaGuer and his apartment are still mislabeled as crime scene evidence. It was the district attorney who first claimed the evidence might be "contaminated beyond the point of valid test results." (1/14/00)
Errors Found in 1983 Serological Testing
Mark T. Grant reported that sperm cells were present on the victim's hairs.[64] This corroborated the police report of Timothy Monahan, who had quoted an anonymous physician as saying that the victim was "raped and it was not self-abuse" as there was "evidence of semen in the vagina and throat."[65] (Grant read all reports prior to testing in1983.)[66]
But the only physician on staff, Dr. William C. Siegel, denied to journalists John Stranahich and Eric Goldscheider that he was the source of Monahan's report. In 1983 the CSI technique to test samples for sperm was one for forensic crime labs, not emergency room physicians.
After a lawyer requested retesting, [67]Grant never appeared on the trial witness list.
In 2002, the DNA analysis cast doubt over both Monahan's and Grant's reports. To Blake, the sample was so small that only DNA science could detect such an infinitesimal sample.[68] Blake derived a genotype with less than 0.03 nanograms[69] "If you shine a flashlight at night in a darkened room, you will see these little dust particles. Most of those weigh a lot more than a billionth of gram."[70] Thus, a fact-finder can conclude that Grant confirmed the presence of sperm not from his own observation and analysis, but as a favor to corroborate Monahan's fabricated report. DNA was still two decades away. The State Police could not be certain Grant did the analysis he reported.[71] Cellmark was also unable to confirm that the cellular material on the slide from which Grant had reported sperm was even spermatozoa.[72] Grant also labeled 0-Type bloodstains from Ms. Plante as B-Type stains, possibly to falsely incriminate LaGuer.[73]
More Errors Found in 1983 Serological Testing
In August 1986 a new report that LaGuer was Type-B[74] contradicted a pretrial State Police "perspiration" test on the culprit's tube sock indicating the wearer was Type-O.[75]
After nearly three years, prosecutors filed court papers on 27 April 1989. Prosecutors asserted that the victim, a Type-O, had testified that "she may well have been gagged with the sock" and that a "tissue,[76] bearing droplets of Type-B blood, also was found in the victim's apartment." In sum, they reasoned, the "depositor on the sock could well have been the victim, and the tissue, bearing defendant's blood type, also does not exclude him from suspicion."
When Lemire stood in court, Judge Mulkern retorted, "If the assailant had blood type O and Mr. LaGuer has blood type B, don't you think that presents a problem to me?"[77]
That exchange prompts prosecutors to contact the local police.[78] Prosecutors then engaged the State Police to retest the tube sock.[79] No retesting was ordered on the tissues already cited in court as incriminating LaGuer.
In a police report, Carignan reported her to say that he had "stuffed something in her mouth and she kept gagging on her own blood."[80] But photographic evidence[81] along with the lab notes and testimony depicts a pristine tube sock.[82] Moreover, a State Police analyst testified that she tested the tube sock for enzymes "found in high quantities in saliva and other body fluids but particularly saliva. All those results were negative, meaning that we were unable to detect amylase on any area of the sock."[83]
Mulkern denied a new trial saying "had the sock and the defendant's blood type been put into evidence at trial, the Commonwealth could have introduced the blood covered tissues matching the defendant's blood type."[84] (In 1991, the Supreme Judicial Court took special note to this claim that LaGuer's blood type was found at the scene. 410 Mass. 89.) But a retest of these tissues in 1989 would have exposed a blood type not Type-B matching Ben LaGuer, but Type-O matching the victim. [85]
After the May 1989 court hearing, the tube sock from the victim's apartment[86] disappeared from all subsequent lists and chain of custody papers.
New District Attorney Struggles to find a Voice while Longtime Staff Prosecutors Spin to Defend the Case from Collapsing
Worcester District Attorney Joseph D. Early told a reporter that his office was reviewing whether evidence in the LaGuer case was mishandled.[87] On the previous day, though, his office released a statement to the Telegram reported that Early was not requesting a DNA audit because the embattled crime lab did none of the DNA testing.[88] But the crime lab held these samples for many years. The lab did all of the preliminary analysis. They inventoried, labeled, packaged and shipped all DNA evidence. They served as the chief architects of the testing protocol. Judge Hillman (an ex-lawyer to the victim's family) adopted every single clause they offered. FSA did no more than was prescribed in the presence of a crime lab witness.
DA Early's refusal to request an external DNA review had political underpinnings. A review may have taken less than a couple hours. If the DNA is found invalid, Early would have been under Cannon obligations to notify the SJC. But why would Early request a DNA review prior to the SJC ruling on the case, when such a review might only undermine their key argument for upholding the verdict. On 30 January, a day before Early said on PBS that his office was investigating the DNA, ADA Hautanen wrote to the SJC in response to the defense alerting the justices that prominent experts were challenging the DNA. "Naturally," she said, "the defendant is dissatisfied with the DNA results showing that he is the rapist." Omitting that her own office was reviewing that very DNA result should be a matter for the Board of Overseers.
For ADA Hautanen to dish up this DNA for the SJC, despite numerous independent reports casting doubt on that DNA, show how Worcester prosecutors have operated in darker ethical norms. According to the 2007 Vance Report, a State Police lab supervisor said that forensic analysts were afraid to report incidents of human error, that they were "paralyzed by fear" of retribution.
In March and December 2006, LaGuer wrote State Police top officials requesting a review of his 2002 DNA test. In July 2007, the Executive Office of Public Safety in July 2007 acknowledged a May 2007 letter "regarding [a] request to have the State Police crime lab conduct a forensic audit from DNA collected at the crime lab." The letter assured LaGuer "that EOPS is reviewing this matter. Once all of the facts surrounding this issue are determined, we will work toward a reasonable and just resolution." In a second letter, dated July 12, LaGuer was notified that his "letter regarding the State Police DNA crime lab which was forward to us by Governor Patrick for response" had been "forwarded to" State Police Colonel Mark F. Delaney "for response." But the Boston Herald soon reported that there "is absolutely no investigation whatsoever taking place in the LaGuer case," according to EOPS spokesman Charles McDonald. (7/25/07) (Colonel Mark F. Delaney was a top official at the state police crime lab at the time of LaGuer's DNA analysis, so asking him to investigate may present conflict of interest issues.)
Once LaGuer read the Federal auditor's report on the State Police crime lab, he wrote requesting his intervention. Richard A. McGeary, in a letter dated 10 July 2007, said, "The types of matters you raise in your letter are more appropriately considered by the OIG Investigations Division. Consequently, I have forward your letter and its enclosures to the appropriate Special Agent in Charge for this evaluation."
Any DNA presented in state courts should adhere to the standards of the National Academy of Sciences, National Forensic Technology Center, National Research Council and the American Society of Crime Lab Directors. This case is also a model case study for the necessity of establishing an Innocence Commission to investigate cases of factual innocence.
Fingerprint Evidence Exonerates LaGuer
The state police crime lab lifted four fingerprints off the base of the telephone from which the culprit had pulled its cables to tie the victim's hands. These possibly matched Jose Orlando Gomez--a neighbor with a history of sexual deviance. But, by the time the State Police notified Carignan that these prints excluded LaGuer on July 16, LaGuer was charged with the crime. The Sentinel & Enterprise story, above the fold, had a "Police Nab Man in Brutal Rape" headline. Carignan left for vacation. So instead of investigating Gomez as a possible suspect, given the fingerprint analysis, Carignan ditched then lied about this evidence in his trial testimony.[89]
Peter L. Ettenberg received the police reports in August 1983, after his client was arraigned in superior court. In a July 15 police report Carigan refers to "a print off the telephone." [90] In November, Ettenberg inquired about any prints with the prosecutor. [91] In December, Lemire responded that the print depicted in Carigan's report could not be matched, [92] that the defense would get any reports as they became available.[93] (The fact that Lemire promised to release the crime lab's fingerprint report suggests that he must have been aware of a crime lab analysis and thus complicit in its withholding, because that favorable report had been in Carignan's possession for six months. How could Lemire not have inquired about the result of this vital crime lab analysis sooner?) Ettenberg wrote a note to himself, "The test for the fingerprint came back negative as a match." [94] In his 1984 trial testimony, Carignan described the single print as a "small partial" in quality.[95]
Since Carignan's July 15 report refers to a second search of the crime scene July 16, [96] after he was told by the State Police about the four exculpatory prints, his assertions of "a print off the telephone" which he later depicted as "a small partial" were each patently false.
After Carignan asserted that the single print in could not be matched prior to trial, any disclosure of greater exculpatory prints not only would have contradicted that police report, but other reports. In his July 14 report, Carignan says Plante told him that she had seen her assailant coming and going from the LaGuer apartment , [97] a statement she repeatedly denied in her trial testimony.[98]
In March 2007, the Supreme Judicial Court ruled that LaGuer's defense did not suffer as a result of Lemire's withholding 4 fingerprints lifted off this telephone, because "the existence of fingerprints by itself, without other evidence or explanation, creates no reasonable basis for believing a third party suspect would have been revealed." This outcome might have been if the court had known that Plante had befriended Gomez, afforded him lodging whenever his mother locked him out for drunkenness? (This information was only made public after the SJC ruled on the case, in April 2007.) If Gomez' fingerprints are on the top layer of other prints, such evidence would suggest that he was the last person who held this telephone, thus making him the likely culprit.
After the March 2005 DNA result, the defense was left with the claim that prosecutors had withheld fingerprint evidence favoring LaGuer's defense to bid for a new trial. But Leominster City Mayor Dean J. Mazzarella, who was a patrolman on the 1983 crime scene, told the Telegram that the missing prints might be his, speaking as if his only purpose was to torch LaGuer's last standing issue. (3/27/02) This left most people, later to include the SJC,[99] to focus on the damming DNA. (But two other officers, not Mazzarella, are credited in police reports with handling the telephone from which the State Police lifted the withheld fingerprints.) A senior police official on the scene promptly ordered that nobody touch anything until police detectives arrived.
While Mazzarella's mea culpa was the first of its kind, prosecutors have never conceded to a single error, he was acting to diffuse the legal impact that could have afforded LaGuer a new trial, despite the DNA analysis, on the basis that Leominster Police Department withheld vital evidence.
In the Telegram article, Mazzarella admitted that the shades on Plante's windows were pulled, suggesting her studio was far less bright and thus that her cross racial ID of LaGuer was far more vulnerable that previously contemplated. While Mazzarella claimed in the article that Plante "could probably tell you how many nasal hairs he had," given how the culprit had spent eight hours in her presence, there are a number of challenges to that assumption. First, there is real doubt whether the culprit was in her presence for that many hours, because Plante gave differing accounts. A number of tenants began to simultaneously hear the noises of her distress between one and three o'clock of Wednesday morning 13 July 1983. This culprit could have been in her presence far less that the eight hours which is currently accepted as gospel. Moreover, the fact that her windows did not face eastward suggests that shortly after daybreak, when Mazzarella arrived, her studio was not as bright as others with direct morning sunlight. Plante testified that the culprit smashed her table lamp within minutes. To make matters worse, according to police and medical reports, her left eye was "totally shut" thus further limiting her vision. She was also not wearing her eyewear.
Articles of Evidence Still Missing
At the scene, Plante told police that her intruder had a knife which was visible on the nightstand.[100] (This knife was vital, as Carignan had noted that her door was jimmied). But the police later charged LaGuer with "unarmed robbery"[101] and the physical knife was never brought to court,[102] nor was any fingerprinting result ever made available. A hairdryer that was used by the culprit to bound her feet with its cord[103] still has black dusting powder employed in fingerprinting all over its surface,[104] but prosecutors have never disclosed if any of these prints also matched a third suspect. According to police, moreover, a partial print was found on a Pepsi soda can in her apartment. It was sent to the state police crime "lab to see if they match same."[105] Those results have never been disclosed either. (Neither the Pepsi can nor knife is on any lists of evidence associated with this case today.)
With the police discarding the knife, Lemire argued that LaGuer had stolen Plante's key while in route to his apartment. (Tr563). This argument hinged on the victim having reported her keys missing. But this argument was fatally flawed. The police found her locking assembly "jimmied" upon their arrival (Tr359). Why would LaGuer pry open her door when he had keys?
In 1989, casting further doubt on the missing key theory, her keys were discovered in her own pocketbook. (The building manager testified that she was forgetful and had previously misplaced her keys.)
In February 2002, DA John Conte said, "Any and all evidence pertaining to this case that is held by the District Attorney's office has been, and will continue to be preserved."[106] But, in January 2002, ADA Sandra Hautanan told the judge that, with respect to the trial files in her office, "my understanding from the trial prosecutor is that there were more things in there and they aren't there anymore."[107] (In March 2007, the SJC held, "There is no question that some evidence has been lost or destroyed.")
LaGuer's Lawyer Neglected his Alibi
LaGuer had a series of alibi witnesses. Yet, his defense lawyer presented none. [108] He even had an alibi.
The Victim's Identification was Unreliable and Contradictory
At the crime scene, Plante told police that she did not know her assailant's identity. [109] At the hospital, she repeated that claim to nurses and physicians on separate occasions. In a bedside interview with police, she provided what they described as a "scant description of a black man very short and small in build." The building manager told police later that no one fit that general profile, but he cast suspicion on the young Latino newcomer who was staying next door to the victim's apartment. LaGuer must have jolted their interest. The police had a two-sentence report on him dating back to November 1980, three years earlier, indicating in vague terms that he had been a "possible suspect" in a residential robbery. With only a scant description to solve a major city crime, and with little more expected from the mentally ill victim in the hospital, LaGuer became their only target. But he was at least five inches taller than the victim, muscular and not very dark skinned as she described, but a light-olive skin complexion. He also spoke with a slight but noticeable ethnic accent; with a severe stutter documented since childhood. Plante was adamant in her testimony that her assailant had a normal voice.
Absent any evidence of real probable cause, Carignan would falsely claim in an affidavit that Plante told him that she seen the man coming and going from the LaGuer apartment. The magistrate granted his request for a search warrant and three officers executed the search. They were eyeing to find the matching pair to a tube sock that was found in the victim's apartment, but the police never did find the incriminating evidence.
Carignan never disclosed to the defense those secret internal reports on LaGuer from the 1980s, thus masquerading how LaGuer actually became a person of interest. According to Carignan, Plante said nothing about the man's eyes, nose, mouth or scars. (Tr 372) LaGuer had a black Panther tattoo on his left hand, and a slit right eyebrow. She told police that he had put a "white" plastic bag over her head. But the only plastic bag found was dark green, Carignan said. (Tr 373) When describing the men on the photographic array, she (mistakenly) claimed that eight of the nine men were Caucasian. (Tr 178). Carignan says that he selected eight pictures of "dark skinned young males," with LaGuer's picture constituting the ninth. Carignan testified that, after being instructed to "pick out anybody she knew," she chose LaGuer (Tr. 351)
At trial, Plante insisted that she could not have described her assailant to police as "very dark skinned" because she selected LaGuer's picture, and he's not a "very dark" man. (Tr 191) The inherent unreliability of her identification is that she came to rely more on LaGuer's photograph, which was shown to her twice before taking the stand, than on her own memory. Carignan's police report of 13 July, a notation within hours, says, "I asked her if he was a black man and to this she said, 'yes he was' he was very dark skinned."
Chief Investigator in Case has Incredible Series of Accounts
Carignan's claim that the victim's daughter was present when her mother named and selected LaGuer's picture from a photo array has never been incredible. And not only because Plante herself repeatedly refuted his account. Carignan triggered none of the normal procedures consistent with him identifying LaGuer at the time and date in question. He did not notify a single department chief; never ordered LaGuer's apartment to be put under surveillance; never instructed roll call commanders to notify their patrolmen to be watchful for LaGuer; never put out a all points bulletin for what he claimed was a known dangerous suspect; moreover, during a search of LaGuer's apartment, Carignan never seized LaGuer's portrait, which he observed "on top of the dresser in the same bedroom." If Plante had truly identified LaGuer, seizing his only photo would have been a top priority.
In 23 years of active litigation, Elizabeth Barry never asserted what Carignan claimed despite multiple appearances before the parole board and media since the 1984 trial. (Ms. Barry died in May 2007)
According to Barry,[110] her father beat her mother and locked her in closets whenever he left the house to party with other women. He put her in a psychiatric ward beginning in the 1950s with a diagnosis of schizophrenia.[111] At the hospital, Barry told police that her mother had "a nervous breakdown" fourteen years earlier and "had not been right since."[112] Barry's silence is incompatible with her having witnessed her mother fingering LaGuer.
Prosecutor Kept Victim's Daughter and Vital Witness off the Witness Stand
In December 1983 Lemire admitted that "present at the time of the photo array being viewed were Carignan, Lennice Plante, and Elizabeth Barry."[113] In January Lemire had a list of prospective witnesses that included Ms. Barry.[114] But, when the trial judge read the list to the jury, six days later, Ms. Barry was the only witness scratched off.[115] Carignan testified, "Officer Monahan stayed outside in the corridor. I went into the room with Mrs. Barry whom I met at the hospital." Carignan did not "recall if there was any other person in the room." (Tr. 350, 351)
According to a defense report, a nurse told private investigators in 1983 that Carignan had only shown Plante a single photograph of LaGuer, not eight as he claimed.
The Victim Had a Sex Offender in Her Midst
Lennice Plante first told police that she had been hog-tied for a couple days then fifteen minutes. She later revised that estimate again, her third, finally settling on a man entering her studio at 9:00 pm and leaving at 5:00 am the following day. But, according to Lt. Robert Hebert's 13 July 1983 report, the tenant next door to Plante saw three men standing outside the building at about 1:00 am. The tenant who lived directly underneath Plante's studio told Hebert that because her door was opened she heard "thumping & hollowing" between 1:00 am and 3:00 am.
Robert Hammack, a defense investigator hired by LaGuer, immediately suspected that the three (3) men standing outside the building were Gomez and his two brothers. Hammack identified Jose Gomez as the better and likely culprit.
At trial, building manager Raymond Cochran testified that the Gomez family had officially moved out in December 1983, seven months prior to the date in question. (Tr 59) But maintenance man Dennis Benoit asserted that he saw Gomez in June 1983. (Tr 91) That testimony links Gomez to the building after his family moved out of the complex.
In her testimony, Plante further stated that while the man had rung her buzzer, contrary to Carignan's claim, she never saw that man enter the LaGuer apartment and denied ever telling any such account to Carignan. "No, because I didn't see him go into the apartment next to me." (Tr 180)
The jury was presented evidence that Plante's intruder was no stranger. In his closing statement to the jury, ADA Lemire said:
"She didn't tell anyone who it was right away, did she. Do you blame her? She had been brutalized for the last eight hours by a person that said to her, that person said to her he would kill her if she told who he was. He knew she knew who he was. If he was a stranger he wouldn't have said, if you tell who I am I'll kill you. She wouldn't have known who he was. He knew she knew who he was."
(Tr 566)
Newly discovered evidence confirming that Plante had dealings with Gomez, contrary to her trial testimony, is vital in light of the defense's Gomez narrative.
Victim's Caretaker Finally Speaks Out
For 24 years, prosecutors have downplayed the severity of Plante's history of schizophrenia. They have managed to prevail in arguing that her mental illness had no impact on her ability to identify LaGuer. In fact, they have even contested the claim of mental illness in court. To the Telegram, DA John Conte wrote: "As the Massachusetts Supreme Judicial Court noted in its recent opinion, Judge Mulkern was correct in finding that LaGuer's claim concerning the victim's mental stability was at its best, speculative." (6/3/91) But Annie K. DeMartino, a former caretaker and friend of Plante, says that Plante was a paranoid schizophrenic. "A lot of her delusions were about President Kennedy," DeMartino recalls, "high powered people were always visiting with her." After the crime, DeMartino adds, Plante "hated anybody dark skinned, she would absolutely get horribly frightened."
In the months before and after the 1984 trial, DeMartino remembers whenever she "went out in public with her, everybody she seen who was either Spanish or black, she would say, 'that's who did it, that's who did it', and of course it wasn't, because they were just people in the street." For the defense, this is significant because LaGuer was the only dark skinned person in the courtroom.
In 1984 Judge Mulkern ordered the defense not to refer to Plante's history of psychosis before the jury (Tr. 314) because, according to Lemire, Plante had had no "psychiatric problems" for at least two years prior to the crime. "I don't think it is relevant at this point, how her psychiatric history should be brought forward." (Tr.4)
According to DeMartino, Plante often spoke of her friendship with a Spanish man who lived in the building with his mother. She sent him on errands. When his mother locked him out of the house for drunkenness, Plante let him sleep on her couch. The only Spanish man in that building who lived with his mother was Jose Gomez. This newly discovered evidence linking Gomez and Plante is a bombshell. Plante testified that she "didn't associate with anybody." (Tr.161) Why would Plante freely admit her friendship with Gomez, in private conversations with DeMartino, but claim no such knowledge of him in her trial testimony? (In her testimony, Plante said that she did not know the Gomez family. (Tr. 161) In his summary to the jury, Lemire said: "This is very important to recall, the set up of the apartment building. Who would walk by her door on that day? Who? That chap right there is the only person that would have any business walking by her door, Benjamin LaGuer." (Tr.563)
Carignan never interviewed a single tenant other than LaGuer. (Tr.368, 369) And he never investigated Gomez and his two brothers against the report that one tenant observed three (3) men standing outside the building and the "thumping and hollering" that began to be heard at the same hour by the tenant directly underneath Plante's apartment. ) The man also told her that he was from Fitchburg, the town where the Gomez family had earlier moved. In a statement to the Worcester Magazine, juror William P. Nowick said, "He's heard from one law enforcement official who state outright that LaGuer wasn't the man…In fact, this official went on to say that they will capture this person once they find his mother…" (7/12/89)
DeMartino remembers her last encounter with Plante. She was visiting another friend at a geriatric facility in Winchendon. In one of the locked wards, DeMartino remembers "She was rambling raving and talking to herself I went over but she didn't know me, so I just kissed her and said goodbye." (Lennice Plante died in October 1999)
According to the Telegram, Plante had "an extremely difficult time on the witness stand. I covered the trial. It was only through delicate handling by [ADA Lemire] that the woman was able to come to court and be heard." (5/26/91) She was not only carefully handled but coached to focus on LaGuer and not Gomez.The defense lawyer had been heavily questioning witnesses about Gomez prior to Plante taking the stand. Plante was the fourth witness to take the stand. (Tr 105) In fact, Carignan testified that Lemire spoke with her in advance and agreed that Plante "knew that she was going to come in and point to the guy she said did this?" (Tr 392)
Chief Investigator Lied to Grand Jury
In August 1983 Carignan told a grand jury that LaGuer's apartment was the scene of this crime, even though everyone knew that Plante was assaulted in her own home. He testified that she was found lying in a puddle of blood, yet his report says one that "smelled of urine." With his report in hand, Carignan then read a statement from the victim as her saying quote "all of a sudden the door opened and in came Benjamin LaGuer." But, contrary to his testimony, his report actually reads her to say "all of a sudden this black guy comes into the apartment." Finally, Carignan testified that she could not be present to testify as she was still in the hospital recovering from a heart attack and awaiting facial reconstructive surgery. None of this was true. In fact, she had been discharged from the hospital three days earlier.
In response to a motion to dismiss indictments, Lemire said that "even absent this information there was certainly sufficient competent evidence presented to justify the indictment."
After listening to Carignan testify for sixty-five pages of transcript, the trial judge denied LaGuer a new trial. "Detective Ronald Carignan acknowledged the inconsistencies discussed above, but denied any purposeful attempt to mislead the grand jury." (ADA Paul F. Bolton, who presented the case to the grand jury along with Carignan, is currently chief of the drug unit for Worcester DA Early's office.)
Prosecutor Lied in Closing Statement to Jury
Contrary to Carignan's police report and grand jury testimony that her attacker was totally nude except for white socks, the trial began with Lemire telling jurors that the man had "undressed" himself and "removed his clothing" before attacking her. (Tr. 22, 23)
In his opening statement, Lemire said, "Mrs. Plante will testify that Benjamin LaGuer entered the apartment next door to her on a number of occasions prior to this date." (Tr.25) Lemire essentially told the jury not to credit the lesser claim that Plante had told Carrigan her attacker was totally nude in order to press Carrigan's greater false claim that Plante had fingered LaGuer. In fact, Plante said she never saw her attacker or LaGuer entering the apartment next door. (Tr.182) Notwithstanding, Lemire falsely told jurors in his closing, "The police had been told who the person was by Mrs. Plane. It was the guy next door. They confirmed that when she picked out that person's photograph." (Tr.567)
Secret Police File Never Disclosed to Defense
A fact finder can conclude that Carignan focused on LaGuer solely on the basis of his internal secret police file and not, as he claims, because Plante told him that she had previously seen this man enter LaGuer's apartment. In fact, Carignan focused first on LaGuer after the building manager cast a suspicious eye on him, a day before Carignan even interviewed Plante. (Tr. 366, 367).
After learning that a secret internal police file stated that LaGuer had been a "possible suspect" in a residential robbery in 1980, Carignan requested a search warrant to chase down LaGuer. (In April 2001, this secret internal police file on 16 year old LaGuer which had been kept in Carignan's folder, for eighteen years after the trial, was finally furnished to the defense as part of a Freedom of Information request by the then defense attorney Tamara Fisher. At trial, this piece of information could have suggested a more credible theory relative to why Carignan rushed to focus on LaGuer.)
His Great Escape at Dawn
A fact-finder can conclude that Jose Gomez was initially welcomed into the Plante's home by virtue of her friendship with him. A fact-finder can also conclude that he fled the scene by jumping 10 feet out of Plante's window to her backyard at the exact moment when police officers were wrestling to pry her door open. There was only a door and two windows from which he could have escaped. Carignan dismissed the window theory. But officers had "pushed" their way inside because, as Monahan said, "there was a green type lawn chair, folding chair against the door." (Tr. 206) Carignan observed "the interior of the door, by lock assembly there was a lounge chair hanging" and "an apron wrapped around the locking assembly." (Tr.248) Carignan omitted this fact (Tr. 360) until after Monahan testified. Carignan further admitted that he did not fingerprint the chair (Tr. 406) which would have been laced with fingerprints.
This barricaded door was an inconvenient truth to Carignan's narrative that Ben LaGuer, in the nude, returned to his next door apartment. That her door was jammed from the inside---possibly to forestall police—was not a dot Ettenberg ever connected for the jury.
But why would LaGuer leap from a window in the nude, then run to the front of the building where he would have had to pass a dozen officers to enter his apartment? A fact-finder can conclude that a man could have dropped 10 feet to that backyard.
LaGuer Does Not Fit a Psychological Profile
Ben LaGuer, with over two thousand dollars in his pocket from his military separation checks, had no reason to engage in a robbery of this nature and psychological profile. The man robbed Plante of her pearls and walked away with her straw pocketbook containing nine dollars in paper money and approximately three dollars in coins, according to Carignan's police report. (7/14/83) The fact that Jose Gomez was homeless not only fits him more squarely with a man who had "an awful odor on his breath that she could not describe" and robbed her pearls and a few dollars, his history of violence is informative.
In a sentencing report to the trial judge, court appointed psychiatrist Dr. Lawrence Hipshem said, "LaGuer does not fit either a psychological nor pathological profile of a person capable of committing this crime." (Tr 611) In a second report, Department of Corrections psychiatrist Dr. Daniel Weiss said, "In talking with him [LaGuer] at some length and in reading the report and trying to compare the action with his own history….it seems totally out of character that this man would have done it…he is not a sexually dangerous person and I recommend no further action on that question at this time."
After the trial, Ettenberg sought to have the court dismiss the charges. "I know the seriousness of the offense," Ettenberg said, "and that justice and the circumstances would cry out that a severe penalty be imposed. But I would suggest to the court that a severe penalty should be imposed on the correct man, not this man, who has got no tendency, no evidence whatsoever of ever committing a crime of this nature or could have committed a crime of this nature." (Tr 614) In his response, Lemire said: "The jury has heard or had heard a week long trial of evidence, more than the woman's testimony, next door over, there was a question of keys missing, and the only apartment beyond this woman's was the man's. So, there was circumstantial evidence other than her identification in this matter." (Tr 416) As we saw earlier all of the "circumstantial evidence" consisted of lies and half-truths.
The three day trial began on Tuesday and ended on Friday between 24-27 day of January 1984. (Tr 3, 593) Jurors deliberated from 3:25 pm until 4:45 pm on Friday, returning on Monday from 10:11 am until reaching a verdict at 11:53 am. (Tr 592, 596)
Racism infected the Trial of Ben LaGuer
On July 18, 1988, William Nowick, a juror at LaGuer's trial in 1984, signed an affidavit in which he stated, in part:
2. Before and during the jury deliberations, countless racial slurs were made in the presence of the jury members about the defendant, Benjamin LaGuer. The first instance of a racial slur being uttered was immediately after the jury was empanelled, as the jury members were going to lunch. One juror, Joseph P. Novak, remarked about the defendant, "the goddamned spic is guilty just sitting there; look at him. Why bother having the trial." The jury foreman, James Dalzell, requested that Mr. Novak be quiet.
3. Moreover, during the jury deliberations, there was much unsubstantiated speculation about how anyone could have raped someone all night. This same Joe Novak stated that "spics screw all day and night," and again alluded to the defendant's guilt. Again Mr. Dalzell asked the juror to refrain.
In Commonwealth v. LaGuer, 410 Mass. at 98, the Supreme Judicial Court ordered the trial court to conduct a hearing to determine "whether the revelations or disclosures in Nowick's affidavit of ethnically oriented statements having been made by one or more jurors are essentially true." Four jurors were among the witnesses called at the hearing held by a trial judge in August of 1991.[116] A brief summary of the testimony of those jurors at the hearing is set out below.[117]
William Nowick 64, of 887 Grove Street, Worcester, testified that paragraphs two and three of his affidavit truthfully reported ethnic comments made by juror Joseph Novak during the Laguer trial (Tr. 1/19-22). He described the affidavit as a whole, however, as being "maybe, a little overdramatic" (Tr. 1/25).[118]
The prosecutor on cross-examination reviewed, practically word for word, the entire affidavit that had been filed in court. At no time, however, did this painstaking parsing on cross-examination of the affidavit succeed in shaking for a minute Mr. Nowick's consistent and sworn-to testimony concerning the specific ethnically oriented remarks that had been made by Juror Novak. On redirect examination, Mr. Nowick continued to affirm the accuracy of the ethnically oriented statements in paragraphs two and three of the affidavit (Tr. 1/124-125).
Mr. Nowick was a frail, sickly man. He suffered from heart and lung disease (R. 74, July 10, 1991, p. 45, Tr. 1/22). He had been ill when he signed the affidavit in July, 1988, and entered the hospital for major surgery shortly thereafter. He had two lung operations, one in the summer of 1988, and one the summer of this hearing (Tr. 1/16-17).[119] Mr. Nowick testified that at about the time of the interview with the state troopers that preceded this hearing, he had a lung tumor and a collapsed lung, and that he has been suffering from a disease which is being treated with twelve. drugs (Tr. 1/122).[120] At one point, when questioned as to whether he had said something different to the state police on June 11, Mr. Nowick noted that June 11 was only two weeks before his recent hospitalization (Tr. 1/46, 62). Asked by the prosecutor, "How is your mind today?" he answered, "My mind. Well, I am here." (Tr. 1/62). His health, and not this case or this affidavit, is what has been on his mind "to be going over and over" during the last three years (Tr. 1/63).
Joseph Novak, 71, of 18 Edison Street, Worcester, testified that he had been foreman of the LaGuer jury and that there were women on the jury (Tr. 1/134-135, 139-140).[121] Asked if he had told Mr. Nowick just before trial began, "The god-damned spick is guilty just sitting there. Look at him. Why bother having the trial," Mr. Novak replied:
No. The first time I heard that word - the only "spick" I ever knew was Spic & Span. The first time I ever heard that word "spick" was when William Nowick during deliberation, after the trial was finished, he said three times, "I don't know, the spicks all stick together." He repeated that at least three times. Now, I don't know what he meant by that. All I can do is conjecture about it.
(Tr. 1/136).
He denied that he knew any Spanish people, that he had never had a chance to meet any, and that he had "no prejudice or any animosity toward them. How can you when you don't know them?" (Tr. 1/137). Asked if any of the jurors had said anything about Spanish-speaking people being "overly romantic," Mr. Novak answered:
They didn't use the word "damn." They said overly romantic, but they didn't use the word "damn." If they would have done any cursing, I [because I was foreman] would have stopped them. I would have corrected them.
(Tr. 1/138).
The comment about being overly romantic was made twice by one of the women (Tr. 1/139). However, Mr. Novak explained:
They didn't make any statement you could consider an ethnic slur. There is nothing wrong with calling the Spanish people overly romantic, because one in five Spanish one of the five romance language they call them speaking races.
(Tr. 1/138) (emphasis added).
Mr. Novak then testified that Mr. Nowick was the only juror who had made what "[t]hey ... call an ethnic slur." (Tr. 1/140). He continued that he had been called a "dirty polack" when he was in grammar school, but that it was not considered an ethnic slur; the "kid" who made the remark would eventually apologize and they would shake hands:
[T]he kids always used to call "dirty polack," whatever nationality, "dirty frog," "dirty wop," "dirty Irish." When I was going to grammar school that happened often. That wasn't considered an ethnic slur then, because the kids usually made up.
(Tr. 1/140).
He continued, "But today you can take a slight dig at a nationality, and it's considered an ethnic slur. Everything is so changed so much today." (Tr. 1/140). At the time of the Laguer trial, he did not consider such words to be ethnic slurs, "because I even heard grownups -- even the police call each other. But that was just a common phrase to them. They didn't make anything out of it." (Tr. 1/141-142).
Mr. Novak testified that during the deliberations he went around the room and spoke with jurors privately (Tr. 1/143).
Mr. Novak testified on cross-examination that the first time he told anyone that Mr. Nowick had used the term "spick" was when he had been questioned by the state troopers and the defense investigator (Tr. 1/148). He claimed that Mr. Nowick made these comments during deliberations (Tr. 1/148-149). Asked if he had ever made the statement attributed to him by Mr. Nowick, he replied, "I never heard of that word 'spick.' How could I? I don't know any Spanish people. I don't know any of these South American people" (Tr. 1/151).
James Dalzell, 53, a construction manager for Coughlin Electrical Contractors, testified that he was the jury foreman at the Laguer trial (Tr. 1/153-154). He initially testified at the hearing that he could not remember any racial statements being made (Tr. 1/155). Asked if any part of the first three paragraphs of Mr. Nowick's affidavit were true, he answered, "They could be or couldn't. I just don't remember." Asked if during an interview with Trooper Richard McCann and Corporal William Kokocinski on July 17, 1991, had told them that parts of the affidavit were true, he said he had (Tr. 1/155-156). He could not "recall" telling the state troopers, "'The first two paragraphs racism was brought up, and I asked the jury body to knock it off.'" (Tr. 1/156). Shown the transcript of his interview and asked if he had said that, Mr. Dalzell claimed, "I remember saying that parts of the -- this affidavit was correct, and I don't remember what parts I said was correct" (Tr. 1/157). Mr. Dalzell said he could not "specifically remember" if the word "spick" had been used (Tr. 1/158). He was then asked, if, when asked by the state police if the word "spick" was used, he had replied, "'It probably was, but I couldn't say specifically. There was a racist remark, as my statement says, or as Mr. Nowick's statement says. What racist remark was used, I don't know.'" (Tr. 1/58). Mr. Dalzell answered he could only remember that he had told the troopers that there had been a remark and not that it had been racist (Tr. 1/158-159).
Mr. Dalzell was then asked if he had told the state police on July 17, 1991, that paragraph two of Mr. Nowick's affidavit was "'basically correct, as I remember. Paragraph three the same.'" (Tr. 1/159- 160). He went on:
The only thing I can say looking at this statement, if the body was out of order, I would have tried to bring it back. The fellow that wrote this has a better recollection than I do apparently. I don't remember specifically what it says here; just I know the way I would behave, that's all.
(Tr. 1/160).
He said the same would apply to paragraph three. (Tr. 1/160). He agreed that at the July 17, 1991, interview, he had said he "basically agreed with paragraphs two and three." (Tr. 1/160-161). The judge then took over the examination of Mr. Dalzell and asked if he had heard someone say, "'The god-damned spick is guilty just sitting there. Look at him?'" The witness said he did not remember hearing that (Tr. 1/161). The judge then asked Mr. Dalzell if he had heard someone say, "'Spicks screw all day and night?" Mr. Dalzell answered, "I heard something that wasn't proper. I don't remember what it was, but I do remember having to take order more than once." (Tr. 1/161). The judge asked if what was out of order had "adverse, bad racial overtones?" Mr. Dalzell answered, "I honest to God don't remember" (Tr. 1/161-162). Defense counsel then, using the transcript of the state police interview with Mr. Dalzell on July 17, continued the examination.
Q. "And do you recall in paragraph three if Mr. Novack stated that spicks screw all day and all night"." Answer: "I am trying to put a face on a name. Okay. I remember there was -- I believe that's the person I am thinking of, an elderly man, white hair. He seemed to have somewhat of a negative opinion of young people. I am not sure it was all racial. it was a generational thing as I remember." Do you recall being asked that question and giving that answer?
A. Yes, I do, similar to that. I don't know if that's exactly it.
Q. Did the officers ask you this question and did you give this answer? Question: "You stated earlier that you did hear racist remarks?" Answer: Yeah, I think I did. I think the statement says that, the first paragraph. The second paragraph says that." Do remember being asked that question and giving that answer?
A. Yes, I do.
Q. Were you asked ... and did you give these answers? "And when you tried to uphold order." Answer: "I didn't try. I did." Question: "When you did, was it because there were racial remarks being made?" Answer: "I honest to god don't remember racial being a big thing here. I really don't. If I thought it was, believe me, I have no reason to hold back." Question: ["]That it was an issue?" "I don't remember it being a big issue, as Mr. Nowick thinks it was." Question: Did you hear racist or racial remarks?" Answer: I am going to say yes; but if you ask me what I heard, I don't remember." Do you remember being asked those questions and giving those answers?
A. Similar to that statement, yes.
(Tr. 1/162-164) (emphases added; interview transcript page references deleted).
On cross-examination, Mr. Dalzell agreed with the prosecutor's summary of his position as thinking that a racist remark may have been made, but that he is not sure (Trial Tr. 165). He said his mind was refreshed by the interview and the affidavit (Trial Tr. 166).
The judge again took over the questioning.
Q. If, I understand you correctly, you don't recall any specific racist remark being made; is that correct?
A. That's correct. I couldn't quote anything that was said.
Q. Okay. You say there may have been a racist remark. Are you saying that based upon your present memory of what occurred during the trial and deliberations, or because having seen this affidavit and read the news items you are alerted to the fact that some other people say there were? Which is it?
A. Me refreshing my mind with the affidavit and the newspapers.
Q. Well, are you saying that you now have a present memory --
A. No.
Q. -- of racist remarks?
A. No, do not have a present memory of racist remarks
Q. Then are you saying it happened because others say it may have happened?
A. It may have happened, sir.
(Tr. 1/167-163) (emphases added)
In Most Recent Court Proceedings on the Case, the SJC Misstates Important Facts
In March 2007 the Supreme Judicial Court summarized the state's strongest arguments in a single paragraph. This is a response to that set of points. Contrary to the victim's trial testimony that she did not finger her next door neighbor as the man who had raped her, as Detective Carignan had claim, Justice Cowin wrote for the court that the victim had "consistently identified" her neighbor LaGuer. "The victim's identification was supported by the fact that, when the police located the defendant in his apartment, he was wearing the same distinctive clothing as described by the victim: jogging shorts, no shirt, and white tube socks with stripes." Cowin's narrative however ignores that Carignan sat in court as the victim denied saying to him that the man was nude (a fact which might have suggested that the man was not a building resident.) After the victim testified that the man was wearing a jogging outfit, it was suddenly Carignan's recollection that LaGuer was wearing a similar outfit when he answered his door. This was never reported in his police report. And none of the officers present shared his memory. (LaGuer testified that he did not own a jogging outfit and none was found during a search of his apartment.) "In addition," Cowin adds, "despite the fact that the attack occurred in the summer, it is not typical for people to walk outside with no footwear. This strongly suggests that the assailant lived within the same apartment building as the victim." But the victim was never asked if the assailant was wearing footwear. In fact, she was hard pressed to even remember whether he was wearing socks. "I don't recall," she said, "he might have had socks." (Cowin's idea of a man wearing "no footwear" arises from Carignan's police report and grand jury claims, fervently refuted by the victim, that the man was nude) "The victim left her keys in her lock the day of the rape, and they were never located," Cowin says, adding, "The defendant's apartment is the only unit beyond the victim's on that floor, requiring the defendant to walk by the victim's apartment in order to reach his. Thus, the jury could infer that the defendant had opportunity to obtain her keys." While the victim did report her keys missing, as she often did, they were later located in her own pocketbook. The keys are presently in the custody of the Worcester clerk of court. Moreover, the police found the victim's "locking assembly" in a manner that even Carignan described as "jimmied," strongly suggesting a case of forcible entry rather than one involving a culprit with access to her keys. "Furthermore," Cowin continues, "when the police first saw the defendant two day after the incident, he had a 'fresh' scratch across his back which was photographed, and the photograph was displayed to the jury. The victim was discovered with bloody fingernails and blood on one hand, and the jury could reasonably infer that the defendant's back was scratched by the victim during the attack. Moreover, the defendant provided differing explanations for his scratch." Cowin's ruling draws on discredited sources to justify events. Her only source for the victim having "bloody fingernails" is Carignan's testimony. There are no police or hospital reports corroborating this observation. But Carignan could not have seen any blood on the victim because she had been bathed when he first met her at the hospital. Thus his testimony that he saw her with bloody fingernails was likely perjurious. Lennice Plante testified, "No, I don't recall scratching him at all." Finally, Ben LaGuer did not provide "differing explanations" for his scratch. In fact, the prosecutor never challenged LaGuer's testimony that he had scratched himself on a picnic table. It was Carignan's recollection, that seven months prior to trial, LaGuer had claimed that he scratched himself at a bar, which should be viewed with suspicion. Carignan had no reports corroborating any such conversation with LaGuer. (While Cowin cited this scratch in the paragraph of the state's strongest evidence, Lemire never even referred to it in his closing statement to the jury. And the idea that LaGuer was wearing a similar outfit as the culprit was also not one postulated during the trial or in any of the seven previous appeals for a new trial.)
Ben LaGuer's Biography
Benjamin LaGuer (born May 1, 1963) is an innocent man convicted of rape. He is serving a life sentence in Massachusetts. He has been proclaiming his innocence since he was convicted of rape in 1984. His case achieved prominence in the late 1980s when reporting by John King discovered a juror who charged that other members of the all-white-male jury uttered racist slurs before and during deliberations. His case became a flashpoint in the 2006 race for Massachusetts Governor when it was revealed that Deval Patrick, the Democratic candidate, had corresponded with and supported LaGuer over a period of several years.
LaGuer was born in The Bronx, New York. He grew up in New York and Puerto Rico until the age of 15 when he moved to Leominster, Massachusetts to live with a sister who was his father's daughter from a previous marriage. LaGuer had no history of violence; he grew up in a Seventh Day Adventist family. He attended high school in Leominster, where he was elected president of Latino Student Body. He was a member of the Drama class. He dropped out in late 1979 to join the Army where he served in a support capacity in Germany. He returned to Leominster in June 1983 having been honorably discharged from the military. Prior to his discharge, LaGuer contributed the maximum towards his GI Bill (educational matching funds). On the morning of July 13, 1983, police were summoned to his neighbor's apartment where they discovered the 59-year-old woman bound and beaten.
Two days later, on July 15, 1983, LaGuer was charged with the crime. He proclaimed his innocence and the following January refusing a plea bargain offer, was convicted in Worcester Superior Court and given a life sentence with eligibility for parole after 15 years. Because he has continued to refuse to admit guilt, for a crime he did not commit, the Parole Board has seen fit to continue to deny him release.
A Political Football Case for Many Years
After a highly critical four-part series in the Sentinel & Enterprise newspaper in August 1986, Leominster PD Chief Alan J Gallagher responded to a reporter, "You can't second guess a jury. You present the evidence to them and they decide." Raymond A Booth, president of the Patrolman's Union, said, the published reports "caused me to sit and think about it."
Booth added that the detective bureau of the Leominster PD ran "almost (as) a separate police operation." [122] This synchronizes with Carignan's testimony that "I was conducting my own investigation." (Tr369) He had no supervision or powers over other officers.
By late winter, the Leominster City Counsel had another crisis. The counsel voted 6-3 to ask the Mayor to disperse funds for an "independent investigation" into misconduct against Chief Gallagher and Lt Robert G. Hebert. According to a Sentinel & Enterprise account, Councilor John P. Mahan flashed a December 31 Sentinel article quoting Ben LaGuer as requesting that his case be included in any investigation of the department. "This is the can of worms you have opened with this nonsense."[123] (LaGuer would not step foot in court for another two years.)
Serious Questions Linger among the Citizens
"Serious questions have been raised concerning the handling of evidence in Mr. LaGuer's case—questions that deserve serious consideration," says state Senator Jarrett T. Barrios, chairman, Public Safety Committee, in a letter to Dr. Carl Selavka of the Massachusetts State Police crime lab.[124]
"A number of reporters have concluded that at the very least, his trial was a pretty odoriferous piece of business. In 1994, the Globe editorialized in favor of a new one."[125] Prosecutors presented not a shred of physical evidence. And for a case of interracial rape, a charge still fraught with a social legacy, twelve white men were empanelled as jurors. Allegations of racism forced a post-verdict hearing, in 1991 with jurors being called upon for testimony.[126] When a reporter asked his impressions of the trial and that of Ben LaGuer a juror, Stephen J. Martin, says, "The life sentence showed the judge agreed with the verdict. 'We saw an animal, and he saw the same animal.'"[127] "When a black person walks into a Massachusetts courthouse, 'the likelihood is that they are not going to get equal justice,'" said SJC chief justice Paul L. Liacos. (Boston Herald 9/22/94)
Not only had the president of Boston University offered his personal prestige to the cause of freeing LaGuer, joining was MIT Linguist Noam Chomsky and William Styron, Boston University Professor Leslie Epstein and Harvard Professors Charles Ogletree, Abbe Smith and Henry Louis Gates and former US Justice Department chief for Civil Rights Deval Patrick, as well as a legion of prominent members of academia, law, finance and clergy such as Minister Don Muhammad of the Nation of Islam. State representative Ellen Story, D-Amherst, and Benjamin Swan, D-Springfield, expressed dismay upon hearing that LaGuer's conviction had been upheld by appeals court. "That's unfortunate," Swan said, "I had serious questions about how the prosecutor had handled evidence in that case." Story said, "From what I know about this case, I think there's not much question that he is innocent and evidence was tampered with."[128]
Challenges to the Conviction
Soon after starting his prison term, LaGuer began studying in the law library and learned how to access the legal system on his own behalf and for other inmates. In 1991 a challenge LaGuer launched to his conviction two years earlier went all the way to the Massachusetts Supreme Judicial Court which rendered a landmark ruling in LaGuer's favor. At issue was whether an affidavit given by juror William Nowick that other members of the all-white-male panel made racist comments before and during deliberations constituted a violation of LaGuer's right to a fair trial. Even though the state's high court sided with LaGuer as a matter of law, it did not overturn the verdict, instead sending it back to the trial judge, Robert Mulkern, for a finding of fact on whether the allegations were "essentially true." After a hearing in which some jurors were called to testify, all of whom affirmed a spectrum of said claims of racism, Judge Mulkern ruled against LaGuer. LaGuer exhausted his last appeal of that decision in 1994, more than ten years after his conviction.
The case became well known among activists, academics and journalists who came to believe strongly that LaGuer had suffered a gross miscarriage of justice. Starting in 1986, reporters who looked at the case found troubling questions about whether LaGuer in fact committed the crime. During that time LaGuer also earned a bachelors degree magna cum laude from Boston University and won a first place International PEN award for an essay on his mother. In 1998 LaGuer was for the first time eligible for parole but was denied because he refused to admit to the crime. At that point he attracted an unlikely ally in Boston University president and 1990 Democratic candidate for governor of Massachusetts, John Silber who helped arrange for pro bono legal representation. His team, which included members of McDermott, Will & Emery, the law firm William Weld, Silber's opponent in the governor's race, had belonged to, successfully sued the parole board and forced a second hearing at which LaGuer was again denied parole.
LaGuer continued to maintain his innocence and attracted the pro bono services of another high powered international law firm, Goodwin Procter, where James C. Rehnquist, a partner at the firm took over LaGuer's case. In February 2004 Rehnquist filed a motion for a new trial in Worcester, Massachusetts Superior Court seeking a new trial on the basis of a Massachusetts State Police report generated the day LaGuer was arrested showing that four fingerprints found on the base of the trimline telephone, the cord of which was used to bind the victim's wrists, did not match LaGuer. This revelation prompted concern from several law makers, including State Senator Jarrett Barrios, who made a written inquiry to the State Police crime lab. Rehnquist's position that the suppression of potentially exculpatory evidence (revealed in November 2001, almost 18 years after the trial) constituted a violation of LaGuer's right to a fair trial was rejected by Worcester Superior Court Judge Timothy Hillman, who had once represented the victim's daughter in a probate matter related to her father's estate. Rehnquist appealed the decision where he was again denied. In June 2006 the Massachusetts Supreme Judicial Court agreed to hear the case. On March 23, 2007 the Supreme Judicial Court unanimously upheld LaGuer's conviction.
Political use of the LaGuer case in the Massachusetts Governor's race
In the fall of 2006 the LaGuer case became a dominant issue in the race between Republican Lieutenant Governor Kerry Healey and Democrat Deval Patrick when it was revealed that Patrick had petitioned the parole board in 1998 and 2000 for LaGuer's freedom and had contributed financially to the DNA testing. In his letters to the parole board Patrick characterized LaGuer as "thoughtful and eloquent." He was criticized in two widely used television ads, considered by some analysts to be among the most negative in the 2006 campaign season. In one ad featuring a woman walking alone in a parking garage, the narrator asks, "have you ever heard a woman compliment a rapist?" The ad was widely perceived as backfiring on Healey because of its negative tone. Patrick ultimately won the race by a margin of more than 20 percentage points.
2007 Developments
The Massachusetts Supreme Judicial Court heard LaGuer's appeal on January 4, 2007 and a ruling was rendered on March 23, 2007. The SJC unanimously upheld LaGuer's conviction. Soon after the decision a former caretaker to the victim stepped forward with new information about the victim's state of mind before and after the crime which raised previously unknown questions about the reliability of her identification. This case remains one of enormous legal, scientific and political consequences.[i]
[1] Telegram & Gazette., LaGuer Wants DNA Review by Matthew Bruun 17 January 2007
[2] Boston Herald, Patrick Aids LaGuer by Dave Wedge 4 January 2004
[3] (Tr.347)
[4] 1983 State Police lab notes of Mark T Grant, pp1
[5] In April 2001, the Leominster Police their 17 May 1989 Chain of Custody transfer sheets showing, among other articles, a "yellow cotton jersey".
[6] State Police Inventory of 12 May 2000 by Gwen Pino, pp4, item 8
[7] Report Number 1, Forensic Science Associates, 15 August 2000, p.9
[8] Report, Cellmark, JJ Higgins of 5 September 2000, pp3, item "N"; POST CONVICTION EVIDENCE ASSESSMENT REPORT by Gwen B Pino 14 August 2000 pp 2, item 5
[9] Affidavit from GB Pino of 6 November 2000, paragraph 15
[10] Finding and Order on Defendant's Motion for DNA Testing of February 2001; further findings and order on Defendant's Motion for DNA Testing of May 2001, items a, b, c and n.
[11] According to the 2007 Vance Report, an independent forensic study prepared as a result of a recent State Police Crime Lab scandal, "several DNA analysts suggested that supervisors are not consistent with their interpretations of DNA reports and protocols."
[12] Transcript of May 22, 1989 court hearing, p. 74.
[13] Letter from Gwen B Pino to state legislator Ellen Story 27 August 2003
[14] Internal 1983 State Police Lab notes of Mark T. Grant.
[15] Forensic Science Associates, Report 2, Table 1, Profiler Plus Genes, P4 (February 2001).
[16] Report number 2, Forensic Science Associates, 4 February 2001 ("The trace level of male alleles found in these two samples is genetically compatible with Alan Keel from our laboratory. It is likely that on the order of a few dozen epithelial cells from Mr. Keel were inadvertently deposited on these slides while speaking near or over them." pp 12).
[17] Follow Up, Investigative Report of July 14, 1983 by Detective Carignan.
[18] The search warrant return has Keith LaPrade, Carignan's partner, also affirming with his signature that "nothing" was seized during the search of LaGuer's apartment.
[19] Trial Tr. 344 / Trial Tr. 379
[20] State Police "Record of Evidence Submitted" form of August 3, 1983; State Police Crime Lab Report of November 1983, item No 21.
[21] Follow Up, Investigative Report of July 14,1983 by Detective Carignan ("In the room where the uniforms were and papers of Benjamin LaGuer I observed several tube socks…of different stripes and there were several pair that did not match")
[22] State Police, Evidence Inventory and Documentation Report of 12 May 2000 by Gwen Pino
[23] ADA Lemire told the trial judge that "the woman testified that she noticed striped socks (on the intruder) and the police later state they obtained a search warrant and went into the LaGuer apartment, while Mr. LaGuer wasn't there and there was a number of unmatched tube socks with stripes around the top. They did not take any of them, they made physical observations. Detective Carignan will testify to this sock." The trial judge then asked the prosecutor "Why didn't they pick up the socks?" ADA Lemire responded: "Judge, they didn't." (Tr 261)
[24] The June 2007 Vance Report describes the State Crime Lab in 1999, when LaGuer initiated this process, as "in need of documentation mechanisms, protocols, review processes, and most elements of a quality management system."
[25] In April 2001, the Leominster Police their 17 May 1989 Chain of Custody transfer sheets showing, among other articles, three (3) pairs of underwear.
[26] Transcript of May 22, 1989, court hearing, p. 7. ("These are the two underpants that were listed in the report, in the lab report, as far as any underpants that's in the evidence box.")
[27] Massachusetts Lawyers Weekly, Gov.'s Council quizzes would be Worcester Superior Court judge by Noah Schaffer 2 October 2006 (Superior court judge candidate told members of the Governor's Council, during his confirmation hearing, that with regard to the LaGuer case, "We would never withhold exculpatory evidence." In response to Councilor Peter Vickery, Lemire said, "We had very limited forensics; its wasn't like 'CSI;'" adding that the case was tried on the basis of identification.; In October 2006, Peter Vickery said, "I was the only member of the Governors Council to vote against the appointments {of Mr. Lemire}, Why? Because the LaGuer case cast a long shadow." http://www.msn.us/vickeryonLaGuer) (10/12/06)
[28] Attorney Barry Berke of Naftalis & Frankel, LLP, New York
[29] Attorney Oliver C Mitchel Jr., formerly of Goldstein & Manello, PC, Boston
[30] November 1999 affidavit of Richard Slowe, a former FBI agent and prosecutor hired to supervise the defense's handling of these articles.
[31] Transcript of May 22, 1989 court hearing, pp. 130-131.
[32] Robert Cordy was a managing partner in the Boston office of McDermott, Will & Emery. A former chief counsel during the William F. Weld Administration, Cordy today is an Associate Justice of the Supreme Judicial Court.
[33] District Attorney John J Conte's Press Release of 14 January 2000
[34] In a July 8, 1998 letter to Lt. Michele D. Pellecchia of the Leominster Police, disclosed in April 2001, Wysocki wrote: "I am particularly interested in items 15 to 18 on the attached Lab report dated November 3, 1983 from the Department of Public Safety." (These items correspond to the rape kit.) The lab report is scribed with "also Benjie's underwear" next to "underpants – suspect."
[35] Press Release "Setting the Record Straight" of 25 April 2004
[36] Court of Appeals, Docket No. 98-P-68.
[37] In his response of July 10, 1998 Lt. Pellecchia wrote, "ADA Sandi Wysocki requested items 15, 16, 17 and 18 from us on another request for an appeal on the part of the defendant. Our records indicated that all evidence was turned over to CPAC Tpr. William Kokocinski on 5/17/89 on request of ADA Kate McMahon by Lt. Ptak. I notified ADA Wysocki of this information."
[38] Boston Herald, "Judge in Rape Trial Said to Be Victim's Ex-Lawyer" by JM Lawrence of 16 November 2004; Telegram & Gazette, "Judge's Ethics Questioned" by Matt Brunn
[39] Interview with Mark T. Grant of 8 May 2000
[40] Interview with Dr. William C. Siegel of 8 May 2000
[41] According to the 2007 Vance Report, the crime lab's "varying chain of custody documentation records can be confusing, appear incomplete and create problems for cross-disciplinary exchange of evidence."
[42] T&G, "Tests Inconclusive in LaGuer case" by M Bruun of 27 September 2001
[43] Leominster Hospital, Lab Report of specimen from Lennice May Plante of 13 July 1983; Report Number 1, Forensic Science Associates, 15 August 2000, p 4 ("Microscopic examination of the cellular debris revealed a low to moderate number of epithelial cells and numerous yeast cells; no spermatozoa were detected from either swab even after the non sperm cells were digested away.")
[44] Ben LaGuer was arrested (3) days later. He underwent a full medical exam at Worcester County Jail, where he remained until his trial. The fact that LaGuer was not treated for a perineal infection coupled with the scientific certainty of these vaginal and rectal swabs being total devoid of male DNA, contradicts any claim of rape of the kind prosecutors allege in this case. How could LaGuer have raped a fungal-infected woman for eight unremitting hours and not become infected? How could this woman been raped for so many hours and the most advanced DNA test of these fungal soaked swabs not yield a single male DNA cell?
[45] Report Number 1, Forensic Science Associates, 15 August 2000, pp 6
[46] Report from T. Kessis to State Rep. Ellen Story of 1 November 2005.
[47] Letter, L. Kobilinsky to J. Rehnquist of 28 May 2004.
[48] T&G, "LaGuer DNA a Match" 23 March 2002 by M Bruun ("A cop doesn't know how to extract sperm from an underwear so you have to get the crime lab into it. Then you have to redeposit it into pubic hairs and leave so few behind that nothing can be done with it until 20 years later. These people had to anticipate the development of this technology to detect a couple of hundred spermatozoa."); also see. T&G, "DNA Finding Difficult to Refute" by M Bruun of 31 March 2002 ("Twenty years ago," Dr. Blake said, "Scientists would not have been able to detect the evidence, rendering the theory that someone would have deliberately planted such an amount incredible.")
[49] The idea of these samples being possibly "contaminated beyond the point of obtaining valid test results" was first posited by DA John Conte in a 14 January 2000 press release.
[50] Boston Globe,"DNA testing backfires," 24 March 2002 by David Arnold ("LaGuer maintains that he was set up, that back in 1983 police removed underwear from his apartment, and that a State Police laboratory technician washed small amounts of semen from his garment unto pubic hairs that eventually would be tested in California.")
[51] Letter from E. Blake to D. Siegel of 4 April 2002
[52] The defense realized that LaGuer's illegally seized underwear had been tested together with rape the kit in April 2001, when ADA Sandra Hautenan gave Siegel a stack of reports several inches thick. But even then prosecutors were still keeping secrets. In a June 28 2001 letter from the Office of the State Police Chief Legal Counsel, the defense was denied its "public records request directed to the [crime lab] for various documents pertaining to evidence collected in connection with" this case. (Letter, from Jed M. Nosal to Tamara Fisher of 28 June 2001.) In a December e-mail, instead of disclosing what she admits are "many files and boxes" in her office, ADA Hautanen informs Siegel that she had provided "all of the information we have been able to locate that is responsive to your requests." ( E-mail, from S Hautanen to D Siegel of 3 December 2001.) Hautanen and her superior were in no mood to voluntarily disclose any more damaging material than they had accidentally in early April and November 2001.
[53] District Attorney John J. Conte's Press Release of 14 January 2000
[54] Commonwealth's Opposition To D's Motion For New Trial Of May 2004, pp. 10-11
[55] Report Number 1, Forensic Science Associates, 15 August 2000, p.4
[56] Report Number 1, Forensic Science Associates, 15 August 2000, p.9
[57] State Police crime lab report of November 1983, Items 18 ("No seminal fluid or sperm cells were detected on the swabs.")
[58] State Police crime lab report of November 1983, Items 15 and 16 ("No sperm cells or seminal fluid were detected on the slides.")
[59] Memorandum of Decision and Order on Defendants Motion for New Trial of 22 September 2004, pp 7
[60] Id.
[61] Associated Press, "From behind prison walls a convicted rapists campaigns to clear his name" by Theo Emery of 23 February 2002
[62] Report number 3, Forensic Science Associates, 21 March 2002, pp. 9.
[63] According to Tamara Fisher, an attorney 1999-2001, the defense never discussed with FSA the chain of custody background, as doing so might have left them vulnerable to charges of violating a "blind test" protocol.
[64] State Police Crime Lab Report of November 1983, item No 17
[65] Original, Investigative Police Report of Timothy Monahan13 July 1983
[66] Transcript of May 22, 1989 court hearing, p.47. ("Yes. Detective Carrignan, the investigator, always made it a habit to submit the entire police report so I read the entire police report…")
[67] Letter from P Ettenberg to J Lemire of 24 October 1983
[68] T&G, "DNA Finding Difficult to Rebut" by M Bruun of March 31, 2002 ("Twenty years ago," Dr. Ed Blake said, "scientists would not have been able to detect the evidence.")
[69] Forensic Science Associates, Report 2, Table 1, Profiler Plus Genes, P4 (February 2001)
[70] The testimony of D.D. Riley (Essex, 9777CR-0196) (11-24-98) pp.11
[71] Report, State Police Post Conviction Evidence Assessment, Gwen B. Pino, Lab Supervisor I, QA/QC, 14 August 2000 p.3 ("Please note that the method used to remove the semen in 1983 from the cut pubic hairs is unclear.")
[72] Report, Cellmark Diagnostics, J.J. Higgins, 5 September 2000 p.2 ("Unknown stain, morphology of cellular material not recognized for identification.")
[73] In court papers of 27 April 1989 prosecutors conceded that Ben LaGuer's "dog tags, the only evidence of his blood type apparently known at the time of trial, indicated that he was Type 'O' blood." But only from interviewing Detective Carignan, whom had admittedly seen LaGuer's military gear while searching his bedroom, could prosecutors have known about these dog tags. If police and prosecutors internally understood LaGuer might be a certain blood type based on these dog tags, then State Police analyst Grant likely also knew at least as much.
[74] Lab Report, Ben LaGuer Prison Medical Record, 11 August 1986; Also see, Report, Blood Services, University of MA Medical Center, 25 September 1987
[75] State Police Crime Lab Report of November 1883, item 14
[76] State Police Crime Lab Report of November 1983, item 4
[77] Boston Globe, "Hearing set to consider new trial in rape case" by James B Ayers of 28 April1989
[78] Leominster Police Department Report by Lt Michele D Pellecchia of 10 July 1998 ("Our records indicated that all evidence was turned over to CPAC Tpr William Kokocinski on 5/17/98 on request of ADA Kate McMahon by Lt Ptak.")
[79] State Police "Record of Evidence Submitted" form of 17 May 1989 (3:15 pm)
[80] Follow Up, Investigative Report of 14 July 1983 by R Carignan
[81] A series of photographic exhibits are on file with state and defense lawyers.
[82] Testimony of State Police Analyst Mark T Grant, 22 May 1989 pp43-44 ("Well…any stains or tears or anything like that. I didn't notice anything at that time with regard to that analysis.")
[83] Testimony of State Police Analyst Karolyn M. LeClair, 22 May 1989 pp93; Also see Testimony of State Analyst Mark T Grant, 22 May 1989 pp61( "I have never actually done the amylase test myself but I know that if saliva is present, that's one of the tests that is used to determine the presence---well, the presence of saliva.") ; Also see Testimony of Forensic consultant Patrick Demers of 22 May 1989 pp 32 ("Amalyse is an enzyme produced in the oral cavity and it is present in saliva and if there is amylase present, you can assume that the biological fluid that it came from is saliva."
[84] Memorandum and Decision Denying a New Trial by Judge Robert V Mulkern, 2 June 1989 pp4-5
[85] Report number 1, Forensic Science Associates, August 2001 ("Lennice Plante can not be eliminated as the source of the female blood from the tissue.") pp 9 (Carignan delivered twenty-one (21) articles to the State Police crime lab between July and August 1983. Analyst Grant reported a B-Type blood was on bloody napkins found in the victim's apartment which could not be linked to the victim (who was O-Type) nor any of the police officers. In August 2001, a DNA analysis of this blood produced a genotype that matched the victim's own DNA profile (she was O-Type) and thus Grant's reporting of this blood as B-Type was false.)
[86] Follow Up, Investigative Report by R Carignan,, 13 July 1983, pp1
[87] Joseph D. Early Jr., Interview. Greater Boston, Emily Rooney. PBS. WGBH. 1 February, 2007
[88] Telegram & Gazette, DA Won't Seek Audit in LaGuer Rape Case, by Matt Bruun, 1 February, 2007 ("'The conviction in the Benjamin LaGuer case was obtained without DNA testing by the Massachusetts State Police crime laboratory," spokesman Timothy J. Connolly said.'")
[89] A female tenant on the first floor told Lt. Robert Hebert, within hours, that she saw three young male suspects outside her window at 1:00AM. Soon after LaGuer was arrested private investigators identified Jose Orlando Gomez (DOB 04/22/58, SS# 021-52-3234) as a likelier suspect. Carignan never investigated Gomez even though his mother had lived in the same apartment complex, he was similar in build and complexion to LaGuer, and he had a history of sexual misconduct which had resulted in him being sent to Worcester State Hospital. Since the trial more evidence has emerged. Gomez confessed his guilt to a J.C. Fenwicks' bartender in Leominster. Another witness also informed relatives of LaGuer that he had information of Gomez's guilt. In the summer of 1983, Gomez entered the Leominster Fire Station in what witnesses considered a delusional state of mind. Neddy Latimer, Director, Spanish Center, was informed of the incident. In 1998 Gomez was arrested and charged with rape (Superior Court 98-0558-1-2). A year later he violated a restraining order (Leominster 9961CR0442). His brother, Efrain Agosto, was charged with rape in 1997 (Fitchburg 9716CR0191) He is a registered Sex Offender. In 1989 former juror William P. Nowick spoke out to Worcester Magazine. "He's heard from one law enforcement official who stated outright that LaGuer wasn't the man…In fact; this official went on to say that they will capture this person once they find his mother…" (7/12/89). Gomez currently resides with his mother at 143 Meadowbrook Lane in Fitchburg.
[90] Follow Up, Investigation report by Ronald N. Carignan of July 1983,pp 2
[91] Letter from P Ettenberg to J Lemire of 29 November 1983
[92] Affidavit from P Ettenberg of 27 November 2001
[93] Letter from J Lemire to P Ettenberg of 13 December 1983
[94] Affidavit from P Ettenberg ,Supra.
[95] (Tr 398-399, 402)
[96] FollowUp, Investigation Report by RN Carignan of July 15 , 1983 pp 3
[97] FollowUp, Investigation Report by RN Carignan of July 14 , 1983 pp2
[98] ( Tr 182 )
[99] In oral arguments this January, SJC justice Cowin remarked: "Well of course the fingerprints would have been negative for Mr. LaGuer, as I would imagine all of the law enforcement officers would have been using that phone once they arrived at the crime scene." (www.suffolk.edu/sjc/2007/sjc 09765.html) But a telephone, whose cord had been ripped from the wall jack and off the base to bind the victim, could not be in service. This case predates the cordless. No officer could have used the phone. Plus, all of the officers were promptly ordered not to touch anything in the apartment.
[100] Original, Investigative Report by Lt Robert Hebert, 13 July 1983 ("She was very hard to understand and not able to give me much about what took place except that the subject had a knife which I observed on a night table.")
[101] Original, Investigative Report by R Carignan, 15 July 1983 (Charging LaGuer with "unarmed robbery" and other offenses."
[102] The knife does not appear on any list of trial exhibits (Tr 127, 272)
[103] Original, Investigative Report by Timothy Monahan, 13 July 1983 ("I went to the woman's feet and tried to untie the cord from around her feet (the cord from the hair dryer) I was unable to do so I used a knife to cut them.") Also see trial testimony of T Monahan. He testified that he used his own knife to untie her. (Tr 210)
[104] A series of photographic exhibits on file with attorney. The hairdryer itself is available for experts to inspect through the clerk of courts.
[105] Follow Up, Investigative Report by R Cariganan, 15 July 1983, pp3
[106] DA John J Conte's unpublished response to a Boston Globe story entitled "Results could Lead to LaGuer's Exoneration" 15 February 2002
[107] Transcript 9 January 2002, pp 14-15
[108]In the summer of 1983 Robert Hammack and Nancy Dickman, private investigators of MayDay Systems, found a series of alibi witnesses "whom we believe will be helpful and willing to cooperate in the LaGuer defense."
[109] According to Patrolman Timothy Monahan's report, "I asked her if she knew who the person was (that did this to her) and she stated "no." Lt Robert Hebert, the officer then in charge, reported in his report that "she was unable to give me any description of the assailant." (Tr241) At the hospital, Dr. William C Siegel noted in her medical chart that she arrived "by ambulance stating that she was beaten and raped by an unknown assailant…She denies knowing her assailant." According to Dr. Edmund Meadows, her primary physician, "her assailant told her that he would kill her if she told what he looked like but she denies knowing her assailant." By the time Carignan and Monahan left the hospital, according to Carignan's report, they only had a "scant description of a black male very short and small in build." She testified that during the entire ordeal she was "pretty well dazed and in shock" and at the time she was shown the photographic array she was "quite drugged up", "so out of it" and not wearing her reading glasses. Nonetheless she picked out LaGuer's photo only when Carignan asked her to "pick out anybody she knew." (Tr. 151, 152, 350, 351) Specifically, she testified that she was "putting my hand on the Bible" that she never told Carignan that she had "seen (LaGuer) several times and had seen him going in and out of the apartment next to her and use his own key to get into that (LaGuer's) apartment." (Trial Tr. 182)
[110] Elizabeth Barry, Interview. Greater Boston, Host Emily Rooney. PBS.WGBH, Boston.12 June 2003
[111] In spite of multiple admissions in court papers, the full and true extent of her schizophrenia and treatment is protected by a 1983 order that still holds her psychiatry records impounded.
[112] Original, Investigation Report by Timothy E. Monahan 13 July 1983, pp 3
[113] Letter from J Lemire to P Ettenberg 13 December 1983
[114] Trial Witness List from J Lemire to P Ettenberg 17 January 1984
[115] Transcript of Jury Empanelment 24 January 1984,pp4
[116] The suggestion by the Appeals Court majority that the defense had full Access to all of the jurors prior to the hearing is incorrect. Although a statement by the judge at the first of three pre-hearing conferences could have created the misimpression that counsel for Laguer were free to interview all the jurors (Tr. May 30, 1991 p. 19), the judge made it clear at the second and third conferences that he himself was strictly supervising juror contact and had limited access to the jurors (Tr. June 10, 1991 pp. 11-13, 15-16; Tr. July 10, 1991 p. 1). The judge also made it clear that he would not envision counsel calling as a witness any juror that had not been interviewed (Tr. May 30, 1991 p. 10; Tr. June 10, 1991 p. 5, 12). The judge 's comment then relied on in part by the Appeal Court majority, that all the jurors, except one who was deceased, were present at the hearing and "available to testify" is somewhat disingenuous.
[117] The fourth of the jurors was Stephen Martin, who was called by the defense in an unsuccessful attempt to establish that he was a juror who had appeared on television with his face blacked out (Tr. 2/38-40). Mr. Martin denied that he was that juror or that he had heard racist comments during deliberations (Tr. 2/39- 40). His memory of the deliberations were vague (Tr. 2/40). Mr. Nowick, when asked by the prosecutor if he knew whether any other jurors had heard Mr. Novak's racist remarks, had referred to an unknown juror who had stated on Channel 7 that he had heard such remarks (Tr. 1/110-112).. Under the ground rules set up by the judge, the defense had not sought access to this juror prior to the hearing. Reference to the testimony of other witnesses may be made in the argument portion of this petition.
[118] Mr. Nowick was not the author of the affidavit, which had been prepared by two Harvard Law School students who were assisting the defendant in his pro se attempt to win a new trial.
[119] The prosecutor had reported at a July 10, 1991, conference that he had received a report that Mr. Nowick had undergone lung surgery on June 24, 1991, and as of July 10 was in intensive care with a collapsed lung (Transcript of July 10, 1991, p. 2).
[120] Shortly after the start of his testimony, the judge offered Mr. Nowick a seat and asked that the "blowers" be turned off so that Mr. Nowick would not have to "strain" his voice (Tr. 1/16-17). The prosecutor noted that it was "better" when Mr. Nowick held the microphone (Tr. 1/19).
[121] James Dalzell was the foreman of the jury which was comprised entirely of males (see Tr. 1/6-7).
[122] Sentinel & Enterprise, "LaGuer Case has Provoked Little Comment by Police" by Tracey F. Seelye December 1986
[123] Sentinel & Enterprise, "Counsel Wants Own Police Probe Funds" by Robert D. Winship
[124] Letter, J. Barrios to C. Selavka of 15 July 2004.
[125] Boston Globe, "The Best PR Man Behind Bars" by Mark Jurkowitz 9 January 1996
[126] Boston Phoenix, "Oxymoronic: For Benji LaGuer, there's no justice in the system" by Sean Flynn 30 August 1991 ("The irony in the approach runs deep. In order to preserve a supposedly fair and truthful verdict, [the prosecutor] was trying to make one of the men who rendered it look feeble-minded and untruthful, thoroughly incredible as a witness to the deliberation yet eminently qualified as a participant in them.")
[127] T&G, "Jurors mixed on recent findings in LaGuer case" by Matt Bruun of 13 December 2001
[128] Springfield Republican, "Rapist won't get new trial" by Dan Ring of 3 March 2006
[i] The New Yorker, Jan. 17, 2000 "DNA On Trial: The Test Is Irrefutable So Why Doesn't It Always Work?" by Peter J. Boyer (Dr. Ed Blake exonerated through DNA Kerry Kotler, who was later arrested for another rape. At his second trial, Blake testified that the police had framed Kotler by stealing his DNA. The jury disagreed.); New York Times, March 16, 2003 "You Think DNA Evidence is Foolproof? Try Again" by Adam Liptak ("It's a 'truth machine,' but the human factor can be a spoiler."); New York Times, Mar. 11, 2003 "Review of DNA Clears Man Convicted of Rape" by Adam Liptak (Prosecutors vowed to retest DNA in 525 cases); New York Times, Feb. 9, 2003 "Troubled DNA Crime Lab Faces Growing Scrutiny" by Nick Madigan (A DNA sample used to falsely convict a man is added to a mounting pile of dubious samples.);CBS News 48 Hours, "A Crime of the Mind" Sept. 27, 2002 (a jury acquitted psychiatrist Ronald Malave based on the idea that his rape accuser had transferred his sperm to her panties, probably by rubbing his stolen underpants together with hers. The State Police analyst was so helpful to their defense that Malave's team felt no need to present their own DNA expert.); Boston Globe, April 17, 2003 "FBI Scientist Admitted False Testimony" by John Solomon (AP) (U.S. Justice Department reviews charges that an FBI scientist botched at least 103 DNA cases. Another scientist resigned while under investigation for improper testing of more than 100 DNA samples.) Associated Press, August 26, 2004 "Kobe Prosecutors Take Aim at Defense DNA Experts (Prosecutors charge that crucial DNA evidence the defense had hoped to use to prove NBA star Kobe Bryant's innocence might have been contaminated.) ; Insight Magazine, June 10, 2003 "Inside the DNA Labs" by Timothy W. Maier (Justice Department Inspector General so incensed by bad science infecting crime labs nationwide that DNA errors may have jeopardized thousands of cases and sent innocent people to death row.); Houston Chronicle, "New DNA Exam indicates errors in 1997 murder case" by Roma Khanna of 15 February 2002 (A DNA test that forced Robert Lee Wallace to plea guilty to avoid the death penalty is found faulty on retesting.); Baltimore sun, "DNA lab fires analyst over falsified tests" by Naura Cadiz of 18 November 2004 (Cellmark, the world's largest private DNA lab claims that falsification occurred in only 20 tests, but it is investigating other cases.); MA Lawyers Weekly, "Science Not A Guarantee Against Mistakes" (Letter) by Joelle Anne Moreno of 22 December 2003 ("Our faith in DNA evidence has recently been shaken by revelations of mistakes and misconduct."); New York Times, "Prosecutors Are a Focus In Houston DNA Scandal" by Adam Liptak of 9 June 2003 (internal investigation of the laboratory would result in disciplinary or criminal charges against nine officials.); New York Times, "Prosecutors Fight DNA Use For Exoneration" by Adam Liptak of 29 August 2003 (While DNA can prove whether someone is associated with a given piece of biological evidence, prosecutors insist that is not the same thing as proving whether a defendant committed a crime.); Boston Herald, "Foolproof capital punishment is but the governor's fantasy" (Op-ed) by James P Rooney of October 2003 ("The net result is that DNA testing is not a panacea for all the problems of determining guilt or innocence…") Washington Post, "Va. DNA Analysis Incorrect In Murder" by Maria Glod of 7 May 2005 ("Intense political pressure prompted a senior scientist at Virginia's DNA laboratory to report flawed results."); New York Times, "Lab's errors in '82 killing force review of Virginia's DNA cases" by James Dao of 7 May 2005 (Governor orders a review of Virginia's nationally recognized DNA lab's handling of testing in 150 cases as well as new procedures to insulate lab from any outside political pressure.)" Associated Press, "Army Worker Investigated in Possible DNA Test Fraud" by Robert Burns 27 August 2005 (The Army's Criminal Investigations Command alerts top Army, Navy, Air Force, and Marine Corps lawyers by letter of the "identified deficiencies" in 479 DNA cases possibly under review.) Washington Post, "Paternity Suit Raises Doubts on DNA Test – D.C., case points to growing problem" by Tom Jackman 22 August 2005 (Points to a series of bizarre cases, including one in Michigan where "a DNA test on evidence from 1969 matched someone who would have been four years old at the time of the slaying and couldn't possibly be involved."); Associated Press, "Dozens Falsely Jailed Due to Prosecutor Misconduct" by AP byline (http://www.publicintegrity.org/) (Prosecutors misbehaved so badly in more than 2000 cases during that period that appellate judges dismissed criminal charges, reversed convictions or reduced sentences, the study found."); Boston Globe, "Prosecutors to Retry Twin in Case Marked by DNA Limits" by Jonathan Saltzman 26 August 2005 ("DNA evidence was unable to definitely link a defendant to the crime because the individual had an identical twin."); The Providence Phoenix, "Down By Law, Some Innocent People Are Convicted for Crimes They Didn't Commit" by Ian Donnis 15 October 1999 ("In a 1997 report, the Death Penalty Information Center In Washington, D.C., found that the danger that innocent people will be executed is getting worse.); Worcester Magazine, "The Ultimate ID: DNA Forensics Can Prove Who's Innocent, Who's Guilty" by Ben Welch); USA TODAY, "Innocence of Former Death Row Inmates Overstated," by Richard Willing 25 January 2005 (Prosecutors dispute claim of factual innocence by six former death row inmates in Court TV film, The Exonerated.); New York Times, "Still on Death Row, Despite Mounting Doubts" by Raymond Bonner 8 July 2002; Boston Globe, "Inmate's Exoneration Renews Call for an 'Innocence Panel'" by Jonathan Saltzman 9 March 2004; Boston Globe, "Powell Freed from Prison: DNA Evidence Clears Him" by John Ellement 9 March 2004; Boston Globe, "Foolproof Forensics? Even Science May Not Make a Death Sentence Infallible" by Beth Daley 8 June 2004; Boston Globe, "With DNA Evidence, States Keep Unsolved Cases Open" by Brendan McCarthy 20 June 2004; Boston Herald, "Verdict: Flawed Forensics" by Barry Scheck & Peter Neufeld 14 March 2004; Telegram & Gazette, "New Guidelines for Eyewitness Testimony, Photo Arrays and Lineups are Being Discouraged" by Martin Lutterell 13 March 2005; Boston Herald, When ID'ing Suspect, Seeing Isn't Believing" by Tom Keane 7 April 2004; Boston Herald, Cross-racial ID Issue a Real Eye-Opener" by Howard Manly 14 March 2004; Boston Globe, "Pathologist Tackles the Crisis in State Crime Labs" by Scott Allen 15 August 2005; The New York Times, "When Prosecutors Err, The Price is Steep, and It is Paid Mostly by Others" by Andrea Elliott & Benjamin Weiser 21 March 2004; The New York Times, "Hurricane, a Wronged Boxer, as Hero of His Own Tumultuous Life" by Ralph Blumental 26 December 1998; Popular Science, "DNA and a New Kind of Racial Profiling" by Jessica Snyder Saches December 2003; USA Today, "8 Years In a Louisiana Jail, But He Never Went to Trial" by Laura Parker 29 August 2005. Boston Globe, "With DNA evidence, states keep unsolved cases open" by Suzanne Smally 20 June 2004 (a "John Doe DNA" indictment, prosecutors say, can keep cases open); Boston Globe, "Representation of indigent defendants inadequate, study says "by AP 11 February 2005 ("All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights, says ABA Study."); The Atlantic Monthly, "The Texas Clemency Memos" by Alan Berlow July/August 2003; Boston Globe, "State high court is asked to ban use of fingerprint evidence" by Jonathan Saltzman 5September 2005 (Lack of scientific rigor puts in question validity of fingerprint evidence.); Boston Herald, "Real justice begins with diverse juries: by Rachelle Cohen 5 June 2003 (Jury selection in Massachusetts viewed as problematic by SJC.); Boston Globe, "Science key in building cases for death law" by Rick Klein 30 September 2003 (Governor Mitt Romney triggers debate whether with cutting-edge science, is it possible to draft a fail-safe death penalty); National Review, "Bad List / A suspect roll of Death Row 'innocents'" by Ramesh Ponnuru 16 September 2002 (At most, what can be said of the "Innocence List" compiled by the Death Penalty Information Center "is that the legal system cannot establish guilt beyond a reasonable doubt."); TIME, "When The Evidence Lies" by Belinda Luscombe 21 May 2001 ("Joyce Gilchrist helped send dozens to death row. The forensic scientist's errors are putting capital punishment under the microscope."); TIME, "Botching The Big Case" by Nancy Gibbs 21 May 2001; Gannett News Service, "Defendants in False Evidence cases at Clear Disadvantage" by Stacey McKenzie 16 July 1994; Gannett News Service, "Convicted on False Evidence" by Laura Frank and John Hanchette 19 July 1994; Popular Science, "Evidence from Dust & Detritus" By Gordon Grice October 2002; Christian Science Monitor, Can You Build a Foolproof Death Penalty?" by Seth Stern 5 November 2003; Vanity Fair, "Jack the Ripper" by Patricia Cornwell December 2002 (Cornwell reveals how she and the others used state of the art forensic science, including DNA tests, to make the case.); Tulsa World, "Lawyers Seek to Overturn Rape Conviction" by Bill Braun 22 November 1996 (Reviewing Case of Timothy Edward Durham, a story of a botched DNA test.); TIME, "This Man Might be Innocent/This Man is Due to Die" Cover Story 18 May 1992 (Reviewing the case of Roger Keith Colman); Knight Ridder, "Scientist Remains Unsatisfied with Retesting of Evidence" by Faye Flam 13 January 2006 (DNA expert calls the retesting effort "a cynical exercise in manipulating a scientific investigation."); New York Times, "DNA Ties Man Executed in '92 to the murder He Denied" by James Dao 13 January 2006 ("The testing was closely watched across the nation because of the belief that it would provide powerful momentum to death penalty abolitionists if it were to prove that an innocent man had been put to death.") Associated Press, "DNA testing takes back seat in high-court death row case" by Toni Locy 12 January 2006 (Arguments on the case of Paul Gregory House focus on the "often messy nature of criminal trials, in which defendants get caught lying for inexplicable reasons, experts dual over how to interpret evidence, prosecutors withhold evidence and police fail to pursue all suspects."); New York Post, "O.J. Verdict Still Doesn't Fit" by Andrea Peyser 3 October 2005 ("Lesson No. 1: Barry Scheck is the devil. DNA, then in its infancy, was billed as the magic bullet that freed the innocent and convicted the guilty. But O.J.'s DNA was all over the crime scene. So Scheck confused the jury by insisting that DNA testing was really flawed."); Boston Globe, "SJC bars a type of prints at trial" by Jonathan Saltzman 28 December 2005 (affects only the sliver of cases in which fingerprint examiners add up characteristics from several prints to consider a match, about 1 percent of all cases); USA Today, "Push to solve cold cases has benefits – and cost" by Richard Willing 28 December 2005 (DNA identification of suspects in rapes unsolved for years can reopen wounds for the victims); Associated Press, "Outgoing gov. wants to determine if Virginia executed innocent man" by Kristen Gelineau 3 January 2006 ( a forensic analysis is a delay because Dr. Ed Blake, who has kept the samples frozen since 1990, refuses to return the samples to Virginia, arguing that testing should be done at his lab.); Time, "The Rise and Fall of the King" by Michael D Lemonick 9 January 2006 (DNA results used to prove that the stem cells derived from clones seemed suspicious to scientists.); TIME, "True Confessions?" by Brian Bennett 12 December 2005 (Three sailors once confessed to murdering a Navy wife. But another man's DNA is linked to the crime.); GQ, "The Wrong Man" by Andrew Corsello November 2004 (Calvin Willis walked out of prison a free man, the 138th American exonerated by DNA); Black News Weekly, Jury awards $15,000,000 to black man wrongfully imprisoned for murder" by Noble Johns undated (http://www.blacknewsweekly.com/bin32.html); Boston Herald, "Justice must be trial without error" by Jennifer Chunias & Neil Raphael 25 May 2004 (How many years will innocent people have to spend in prison?); New York Times "Crusading for Prisoners When the System Fails" by Julie Salamon 27 June 2005 (PBS filmmaker Ofra Bikel helps to gain release of 13 out of 14 inmates she has profiled as innocent); Associated Press, "Federal judge orders new trial for death row inmate" in Pittsburgh by AP 24 February 2005 (Ernest Simmons was given a new trial because prosecutors withheld key evidence undermining star witness); Charlotte Observer, Editorial, "A Fair Trial Rescues Alan Gell from Death Row" 22 February 2004 ("Withholding evidence has been illegal since 1963, but not single prosecutor has received significant punishment."); New York Times, "The System Dances With Death" by Jim Dwyer & Jodi Wilgorn 21 April 2002 ("There are proportionally far more innocent people convicted than I ever thought there were," says former CIA and FBI director William H Webster.); New York Times, "An Old Case in a Different New York" 20 October 2002 (The infamous Central Park Jogger case saw five black males convicted of sexual assault, even though DNA evidence pointed to someone else.) by Sam Roberts; Associated Press, "Freed man charged in slaying" by Carrie Antlfinger 16 November 2005 (Steven Avery, cleared of a sexual assault by DNA, is now charged with the murder of Teresa Halback.); USATODAY, "FBI Checking Prints in death row cases" by Richard Willing 11 January 2006 (FBI is reviewing all federal and state cases of death row inmates scheduled for execution based on the lab's fingerprinting analysis.); The Republican, "Court review vital in rape-murder case" by James Kilpatrick 6 August 2005 (US Supreme Court reviews questionable evidence in the case of Bobby Lee Holmes.); Telegram & Gazette, "Conte's not talking and that's that" by Dianne Williamson 26 January 2006 (DA John Conte's "penchant for paranoia and secrecy is just plain weird, and sometimes irresponsible. His office is triple-locked and stacked with television monitors. He seldom appears in public without a protective detail.); WGBH, "Jewel of Earth" episode of NOVA, Paula S Apsell, Executive Producer 14 February 06 (Scientists seeking DNA from specimens frozen in a Amber stone discern that the unexpected DNA of fish was due to contamination. The examiner had a tuna sandwich at same time as the analysis was being performed, and inadvertently contaminated a DNA first assumed to be from dinosaur.); Boston Globe, "Manslaughter Deal struck in 1981 murder" by Raja Mishra 17 February 2006 (Patrick J Durham accepts a guilty plea when DA Daniel F Conley recognizes that "the DNA evidence would be vigorously contested" as contaminated and mishandled.); Washington Post, "Blood Trail Is Crux of Forensic Mystery" by Charles Lane 6 February 2006 (Lawyers for Paul Gregory House, experts including Ed Blake say, presented the US Supreme Court with junk science.); TIME, "DNA testing may not be so, foolproof as once thought" Dick Thompson 5 June 1989 (Advocates of DNA still maintain these tests are practically foolproof if done properly. "It's not the technology that's being challenged," says John Hicks, a deputy assistant director of the FBI, "but the proficiency of the tester."); TIME, "Convicted by Their Genes 31 October 1988 (A new forensic test is revolutionizing criminal prosecutions.); Boston Globe, "Scientist vows to safeguard DNA in Va. murder case" by John Aloysius Farrell 16 September 2000 ("Evidence sought by lawyers for another condemned man, Derek Barnabei, was missing from a locked evidence room for three days. DNA tests of that evidence failed to absolve Barnabei, and he was executed ... despite his lawyers' assertions that the disappearance was evidence of 'deliberate and malicious tampering.'"); Virginian-Pilot, Editorial, Confusion over DNA a threat to Justice, 29 August 2005; Richmond Times-Dispatch, Study will ask whether errors in Washington case are 'endemic to the system by Frank Green 14 June 2005; Virginian-Pilot, editorial, Alarming indifference from crime lab boss 10 May 2005; Winston-Salem Journal, State crime lab is faulted: Lawyers group calls for probe, cites DNA errors in three cases by Phoebe Zerwick 20 July 2005; Richmond Times-Dispatch, Mistakes by state DNA firm alleged The Illinois State Police, 'out-raged' by findings, end their contract with the firm by Frank Green 20 August 2005; Minneapolis Star-Tribune, Defense attorneys raise concerns about DNA sample mix-up by David Chanen 20 May 2005; KSTP-TV News, BCA crime lab under the microscope (at www.kstp.com/ article/stories/S8367.html?cat=1); Las Vega Review Journal, DNA evidence: Officials admit error, dismiss case by Glen Puit 18 April 2002; Ann Arbor News, Judges raises possibility DNA evidence may have been contaminated at State Police lab by Liz Cobbs 11 May 2005; Virginian-Pilot, Governor appoints panel to oversee Va's crime lab by Christina Nuckols 9 August 2005; Seattle Post-Intelligencer, 23 DNA testing errors in serious criminal cases unearthed in 2004 (http://seattlepi.nwsource.com/special/crimelab/); Houston Chronicle, Retesting of crime lab work in question by Roma Khanna 6 December 2004; Legally Scientific? A brief history of DNA evidence in the criminal justice system by Michael Strutt 9 June 2001 (http://www.justiceaction.org.au/actnow/ Campaigns/DNA/pdf_files/02_legal.pdf); US Department of Justice, Office of the Inspector General, The FBI DNA Laboratory: A Review of the Protocol and Practice Vulnerabilities, May 2004 (www.usdoj.gov/oig/special/0405 /final. PDF); National Law Journal, DNA Tests Unravel by Charles Sherman 18 December 1989; FBI Law Enforcement Bulletin, The Microscope Slide: A Potential DNA Reservoir by John E. Smialdk November 2000 (addressing the "seriousness of the contamination issue."); The Champion, Understanding Recent Problems in Forensic DNA Testing by William C Thompson January/February 2006; US News & World Reports, Getting DNA to Bear witness/Genetic tests can reveal ancestry, giving police a new source of clues by Dana Hawkins Simons 23 June 2003; Time, This Man Might be Innocent 18 May 1992 (The story of Roger Coleman); Vanity Fair, That Championship Scandal by Buzz Bissinger July 2006 ("crucial DNA test on 46 Duke lacrosse players found no match with the accuser, making her allegations, that she was choked and raped and sodomized for about 30 minutes, even more uncertain."); Center for Public Integrity, Harmful Error: Investigating America's Local Prosecutors by Steve Weinberg (analyzing 11, 452 cases involving prosecutorial misconduct)(www.publicintegrity.org); Washington Post, Vast DNA bank puts policing at odds with privacy by Rick Weiss (reprinted in Boston Globe 4 June 2006)("These data-bases are starting to look more like a surveillance took than a tool for criminal investigations, said Tania Simoncelli of ACLU in NY.); Newsweek, Doubts About Duke by Evan Thomas and Susannah meadows 26 June 2006 ("But the woman's own statements to police and to medical personal were contradictory, and the physical evidence does not appear to support her claims or the police affidavit.") Simon Ford, Fraud Detection through case reviews; A Presentation at the Forensic Bioinformatics 4th Annual Conference: The Science of DNA Profiling: A National Expert Forum, Dayton, Ohio, 13 August 2005 (online www.bioforensics.com/conference05/FBS Dayton 2005__Fraud.pdf); Boston Globe, Near match of DNA could lead police to more suspects by Gareth Cook 12 May 2006 ("The genetic surveillance of innocents would be along racial lines," said DNA expert and lawyer Barry Scheck. "I think it is a troublesome idea."); Boston Globe, City to pay $3.2m in wrongful conviction suit by Andrea Estes (An exonerated Neil Miller settles lawsuit with Boston City. "These were not mistakes," said DNA expert and lawyer Peter Neufeld. "He was the head of the laboratory who testified more than 1,000 times who is caught in perjury.")(March 2006); New York Times, "Ex-prosecutors and Deputies in Death Row Case are Charged with Framing Defendant" by Don Terry 13 December 1996; Chicago Tribune Magazine, "Nine Lives" by David Protess and Rob Warden 10 August 1997; Republican, "Wrongly convicted man gets $500,000" by Marla A Goldberg 13 August 2005; Boston Herald, 3 wrongly jailed will share $1.5M" by Casey Ross and Maggie Mulvihill 13 August 2005; Boston Herald, "Charges possible despite DNA tests" Tim Whitmire (AP) 17 April 2006; Boston Herald, "Special Report: Justice Denied" by Maggie Mulvihill 5 May 2004; Telegram & Gazette, "Conte rules out re-election - 30-year run to end" by Milton J. Valencia 25 January 2006;- USA TODAY, "Science takes hard look inward Journal editors focus on how to root out fraud" by Rita Rubin 11 January 2006 (University of Michigan professor seeks funds to organize international conference to address fraudulent research); Massachusetts Lawyers Weekly, Editorial, "Prosecutorial Power & Responsibility" 6 April 1998 ("Society suffers when those who prosecute are not humble enough to admit that sometimes innocent people get trapped in an imperfect system."); Boston Herald, "Bad conviction rattles legal eagles" by Jules Crittenden 25 January 2004 (Defense attorney J.W. Carney says, "Proof beyond a reasonable doubt requires that every bit of evidence be scrutinized with care by everyone involved in the process, even in what looks like an overwhelming case_ f guilt.'); Boston Globe, "Panel decries wrongful convictions" by Jenna Russell 25 January 2004 (Supreme Judicial Court Justice Robert Cordy said, It's frightening, because it can happen, and it-`s costly to everyone. We need to rededicate ourselves to making changes that will minimize the possibility of wrongful convictions."); Boston Herald, "Judge clears way for wrongful arrest suit" by Tom Mashberg 6 September 2004 ("On the morning of the day of the plaintiff's arrest, the Massachusetts State Police knew that the plaintiff"- Edmund F. Burke - "was not the person who murdered Irene Kennedy,' said Superior Court judge Carol Ball.); Associate Press, "Federal judge orders new trial for death row inmate" no byline 24 February 2005; Massachusetts Lawyers Weekly, Editorial, "Genetic Testing: Learning More" 12 September 1994; Bostonnia, "CSI: Boston University/In DNA Forensics, ENG Prof Nabs the Guilty Twin" by Tim Stoddard (Fall 2004); Boston Herald, 22 Bay State men wrongfully jailed by Franci Richardson and Maggie Mulvihill/Herald/FOX 25 Probe of 5 May 2004; Boston Herald, Innocent point finger at 'Mr. Homicide'" by Franci Richardson and Maggie Mulvihill 5 May 2004; Boston Herald, These men's lives ruined forever by Maggie Mulvihill 5 May 2004; Boston Herald, Misfits dumped into key cop unit by Maggie Mulvihill and Franci Richardson 6 May 2004; Boston herald, Mayor pushes for 'compensation fund' by Maggie Mulvihill and Franci Richardson 6 May 2004; Boston Herald, This boy did six years in the joint for nothing by Franci Richardson and Maggie Mulvihill 7 May 2004; Boston Herald, It's time for age of innocence: A call for commission on wrongful convictions by Maggie Mulvihill and Franci Richardson 7 May 2004; Boston Herald, Man's murder rap tossed 30 years after conviction by JM Lawrence 30 April 2004 Boston Globe, "DAs Call for More Staff at crime labs" by Tracy Jan and Maria Sacchetti 3 September 2006 (Spurred by the discovery of more than a dozen wrongful convictions in recent years, the Massachusetts' district attorneys have issued new guidelines); Boston Globe, "You can buy a DNA test, but beware" by Judy Foreman 7 August 2006 (While the public believes genetic testing is subject to government oversight, that is largely not the case.); Boston Globe, "A Salve For Justice" Editorial 20 August 2006 ("Massachusetts also has failed to create an innocence panel to look at 23 overturned convictions since the 1980s."); Boston Globe, Innocence by the Numbers by David Feige 16 July 2006 ("Is Justice Scalia's faith in the criminal justice system, expressed in a recent opinion, based on the fuzzy math of the death penalty lobby?"); Justice Watch, Summer 2004 ("Asking prosecutors what we should do about wrongful convictions is like asking Hannibal Lecter what we should do about cannibalism," says Rob Warden of the Center on Wrongful Convictions at Northwestern University.); Telegram & Gazette, Tool for justice, Editorial 6 June 2003 ("More recently the case of convicted rapist Benjamin LaGuer of Leominster illustrated how DNA evidence can debunk even the most persistent protestations of innocence."); Sentinal & Enterprise, District attorney was relentless in his pursuit of justice, Political endorsement, Letter to the Editor 30 October 2002 by Robert J. Barry ("District Attorney John Conte has worked diligently and was not influenced by the press. He fought every motion on behalf of the commonwealth. Thank God!" Mr. Barry is the victim's son-in-law.); Bureau of Justice Statistics, Survey of DNA Crime Laboratories, 2001. National Institute of Justice, NCJ 191191, January 2002. http://www.ojp.usdoj.gov/bjs/pub/pdf/ sdnacl01.pdf; William C Thompson, Subjective interpretation, laboratory error and the value of DNA evidence: Three case studies, 96 Genetica 153 (1995); William-C Thompson, Accepting Lower Standards: The National Research Council's Second Report on Forensic DNA Evidence. 37 Jurimetrics 405 (1997); William C. Thompson, Examiner Bias in Forensic RFLP Analysis, Scientific Testimony: An Online Journal, www. Scientific.org; D. Michael Risingger, Michael J Saks, William C Thompson & Robert Rosenthal, the Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectations and Suggestion. 90 Cal.L.Rev. 1 (2001; John M. Butler, Forensic DNA typing: Biology and Technology Behind STR Markers (2001); William C Thompson, Simon Ford, Travis Doom, Michael Raymer & Dan E. Krane, Evaluating forensic DNA evidence: Essential elements of a competent defense review, National Association of Criminal Defense Lawyers, www.nacdl.org (April 2003); Telegram & Gazette, Editorial, Justice on hold/Unsolved crimes confound police, families 7 September 2006 ("It was stunning to see in last weekend's Sunday Telegram the page filled with names and faces of the more than 90 people who were murdered or are missing from across Central Massachusetts since 1970."); New York Post, Cuomo Slams Pirro: Rips DNA 'blunder' by Kenneth Lovett 22 September 2006 (Westchester district attorney ignores repeated request by Jeffrey Deskovic to have DNAevidence retested since 1997.); Chicago Tribune, Report: Inmate Wrongly Executed by Maurice Possley 9 December 2004; Austin Chronicle, Without Evidence: Executing Frances Newton 9 September 2005; JusticeDenied, New Evidence of Frances Newton's Innocence Ignored by Courts And Texas Governor Summer 2005; Houston Chronicle, Did Texas execute an innocent man by Lise Olsen 20 November 2005; Was the wrong man executed? by Terry Ganey, St Louis Post-Dispatch 11 July 2005; Stanford Law Review, 8 Miscarriages of Justice in Potentially Capital Cases by Hugo Adam Bedau and Michael L. Radelet, November 1987, Vol. 40, pp 21-179.; The Virginian-Pilot, "Kangaroo court for Earl Washington" Editorial 1 May 2006; Boston Globe, Laboratories of Justice, Editorial 24 September 2006("At the Massachusetts State Police crime lab, forensic scientists have backlogs of cases, inadequate bench space, and $35,000 salaries that recently led five of the state's 32 crime lab chemists to seek work in other states..."); Worcester Telegram & Gazette, Paxton Man Nominated as Superior Judge, no byline 26 September 2006 (Assistant District Attorney James R Lemire of Paxton was chief of the drug, sexual assault and financial crime units.); Boston Globe, Appeal heard in '95 murder of prosecutor/Evidence, testimony faulty, SJC is told by John R. Ellement 11 November 2006 (Attorney John H. Cunha told five SJC justices that "some of the DNA evidence" that was used to convict Jeffrey L. Bly "was tainted by flawed laboratory and analytical procedures." Assistant Attorney General Pamela Hunt told the court, "This was not a DNA case. The heart and soul of this case was the testimony of five witnesses.) Boston Herald, Judge Orders Entwistle DNA swab by Norman Miller 9 November 2006 (Accused double-murder suspect Neil Entwistle's DNA was incorrectly extrapolated by taking DNA from his dead infant daughter and DNA from a water bottle located in Entwistle's abandoned BMW at Logan Airport. Entwistle must submit a more reliable and direct sample from his buccal or cheek.); Boston Globe, Scientists unveil beginnings of Neanderthals' DNA code by Gareth Cook 16 November 2006 ("This finally made the idea practical, because about 95 percent of the DNA is contamination from other organisms, according to Michael Egholm, vice president of molecular biology at 454 Life Sciences. They use computer analysis to put side all of the DNA contaminated by microbes and humans who have handled the fossil."); See. Hugo Adam Bedau & Michael L. Radelet, "Miscarriages of Justice in Potentially Capital Cases," 40 Stan. L. Rev. 21 (1987) (Professors Bedau & Radelet produced evidence suggesting that 23 innocent people were executed in US during the 20th century.) Their methodology and conclusions have been criticized. See Stephen J Marksman & Paul G. Cassell, "Protection the Innocent: A Response to the Bedau & Radelet Study," 41 Stan. L. Rev. 121 (1988); See also Michael L. Radelet & Hugo Adam Bedau, "The Execution of the Innocent," 61 Law & Contemp. Prob. 105. 115 (1998); Boston Globe, DNA samples in Cape slaying to be returned by David Abel 22 November 2006 (DNA samples collected from hundreds of men to resolve a fashion writer's murder are return following a conviction.); New York Post, "Wrong Man' In Money/Law firm pays 900G" by Stefanie Cohen 21 November 2006 (Lee Long settled legal malpractice claim with former client, after Barry C. Scheck's law firm agrees that it bungled Long's compensation claims and rights against the state.); Peter J. Henning, "Prosecutorial Misconduct & Constitutional Remedies," 77 Wash. U. L. Q. 713 (1999)(analysis of particular instances of prosecutorial misconduct, e.g., use of perjured testimony, undisclosed evidence, and destroyed evidence.); Nat'l Dist. Attorneys Ass'n, Policy Positions on DNA Technology 8-9 (2001)(while acknowledging the potential of value of DNA analysis to exonerate, the group urges "limits" and for "protecting against potential abuses.")(www.ndaa-apri.org/ PDF/ 7.22.01.DNA%20 Postion.pdf (last visited Oct. 2005); New York Times, Some Prosecutors Willing to Review DNA Evidence by Ross E. Milloy 20 October 2000; See Landry -v- Attorney General, 429 Mass. 336 (1999)(State officials should be aware that DNA tests "will inevitably be challenged on the ground (among others) that the DNA sample was not properly obtained or that it had been contaminated with other human DNA, creating a possible misleading or false result."); Also see Commonwealth -v- Vao Sok, 425 Mass. 787, 794 n. 11 (1997)(pointing out the possibility of contamination of a forensic DNA sample and further describing problems that might exist with certain. types of DNA testing,); National Research Council, The Evaluation of Forensic. DNA Evidence Report (1996) (emphasizing that "given the great individuating potential of DNA evidence and the relative ease with which it can be mishandled or manipulated by the careless or unscrupulous, the integrity of the chain of custody is. Of paramount importance."); Boston Herald, Duke case shows overreaching DA by Dan K. Thomasson 1 January 2007 ("None of the DNA samples matched anyone on the lacrosse team. The DNA however, did come from several other unidentified men, a fact [DA Michael] Nifong and the lab director withheld from the defense."); Boston Herald, Enwwistle murder weapon mystery by Joe Dwinell & Laurel J. Sweet 11 January 2007 (In a strange twist to sensational murder case, inconclusive DNA of third person has been found on the grip of the revolver allegedly used to execute wife and baby.); Boston Herald, Statie DNA lab blunders may jeopardize rape cases by Casey Ross & O'Ryan Johnson 13 January 2007 (An administrator at the State Police DNA lab has been put on leave for botching tests, running tests too late to prosecute suspects and outright failures to run tests at all. Essex County DA's office said his office received one false DNA report from the lab that resulted in an arrest.); Eunyung Theresa Oh, innocence after "Guilt": Post conviction DNA Relief for Innocents who Pled Guilty, 55 Syracuse L. Rev. 161 (200.4)(quoting Jeannie Pirro, district-attorney of Westchester, N.Y., as referring to a DNA test as "the finger of God."); Boston Globe, Crime lab mishandled DNA results by Jonathan Saltzman & John R. Ellement 13 January 2007 ("DNA evidence and the use of DNA evidence has been one element that has brought a certain degree of certainty into many criminal prosecutions that wasn't there before. If we're going to use that evidence and have that option available to us, then we have to assure that it's consistently professional. And it hasn't been, at least in this series of cases," said Governor Deval Patrick.); MetroWest Daily News, DNA analyst at crime lab suspended by Casey Ross & O'Ryan Johnson 13 January 2007 (State Police Col. Mark F. Delaney suspended with pay analyst. Robert Pino, having determined that Pino "failed to follow clearly established professional practices" with regard to DNA samples.); Telegram & Gazette, State Police suspend DNA lab administrator by David Weber 13 January 2007 ("This is clearly something that we're recognizing is very serious," said State Police Lt. William Powers.); Boston Globe, Mass. DNA lab's lapses draw Beacon Hill inquiry by Jonathan Saltzman & John R. Ellement 17 January 2007 ("Key state lawmakers demanded answers yesterday about the mishandling of DNA test results at State Police laboratory"); Boston Herald, Deluge of challenges will follow DNA lab's blunders by Casey Ross 18 January 2007 ("It's going to be system wide. There will be motions on old cases and on any forthcoming case," said Public Safety Secretary Kevin Burke, adding that the "negligence" of one crime lab administrator could reverberate throughout the state's criminal justice system. In four cases, Robert E. Pino allegedly prepared false reports, saying that DNA from a crime scene matched a particular suspect, when in fact no match had occurred.); Telegram & Gazette, Lab exam/Handling of DNA evidence must be meticulous, timely, Editorial, 19 January 2007 ("State legislators should press for answers in the improper handling of DNA evidence..."); Boston Globe, FBI begins review of crime lab by Jonathan Saltzman 20 January 2007 (FBI analysts downloaded more than 20,000 DNA profiles over 15 hours...");. Metro West Daily News, A case for LaGuer review by Eric Goldsheider 19 January 2007 ("The premise behind LaGuer's expert performing blind tests was that the State Police crime lab would perform the role of honest broker, competently vetting the evidence solely in search of the truth, and not as an arm of a prosecution intent on preserving a conviction."); Metro West Daily News, DNA slip: Unsolved cases hurt by state crime lab 'mishandling' evidence by Peter Reuell 21 January 2007 ("I think the courts are going to have to start giving some of these people hearings, or accede to retesting," says defense attorney John LaChance. "The problem is you don't know what's been falsified and what hasn't; ."); Massachusetts Lawyers Weekly, Gov.'s Council quizzes would be Worcester Superior Court judge by Noah Schaffer 2 October 2006 (Superior court judge candidate told members of the Governor's Council, during his confirmation hearing, that with regard to the LaGuer case, "We would never withhold exculpatory evidence." In response to Councilor Peter Vickery, Lemire said, "We had very limited forensics; its wasn't like 'CSI;'" adding that the case was tried on the basis of identification.) Boston Herald, New DA nixes LaGuer rape case review by Dave Wedge 11 January 2007 ("He believes justice has been served," spokesman Tim Connolly said of District Attorney Joseph Early, adding that Early has no plans to grant LaGuer's request for a review of the DNA tests.); Boston Globe, Review faults defense efforts in four death-penalty states/Lawyers missed relevant evidence in 73 of 80 cases by Stephen Henderson (McClatchy Newspapers)(Kenneth Starr, dean of Pepperdine University School of Law, says, "We are going to sit in judgment of one of our own and take a life. Not doing it right is unspeakably shameful.")(1/21/07); Telegram & Gazette., LaGuer Wants DNA Review by Matthew Bruun 17 January 2007 ("Several forensic experts have said the minimal amount of genetic material identified in the analysis is consistent with contamination. The state police did not perform the analysis in Mr. LaGuer's case, but the lab was responsible for preparing and labeling the samples for testing. Mr. LaGuer says hairs taken from a jersey he was wearing when he was arrested were mislabeled and pooled with crime scene evidence, resulting in the positive DNA match that led many of his past supporters away. He cites testimony from the lead detective in the case, who described Mr. LaGuer donning a jersey when being questioned about the crime. 'How could I be wearing the shirt on Friday when I was arrested, and 18 years later the shirt is labeled as found at the feet of the victim three days earlier?"); Boston Globe, Lawyers question lab's DNA results by Jonathan Saltzman 24 January 2007 ("Showing the widening fallout from the mishandling of DNA test results at the State Police lab, the lawyers in three high profile murder cases challenged the reliability of such test results and suggested the problems could help their clients."); Boston Globe, Father of Slain Calif. girl criticizes Patrick by Andrea Estes 26 October 2006 ("The father of California murder victim Polly Kiass visited Boston yesterday ... Marc Klass said ..."I'm sorry - this just absolutely blows my mind ... Every fiber of my being cries out to beware any individual who prioritizes the rights of a violent sexual sadist like Ben LaGuer ahead of the rights of a crime victim like the 59-year-old woman he repeatedly raped over the course of eight hours."); Boston Herald, News in Brief, Outside firm eyed to assess state DNA January 2007 (Secretary of Public Safety Kevin Burke hires a firm for $250,000. "While the science of DNA is indisputable, we have a duty to ensure that the Commonwealth can have a similar level of confidence in the administrative processes we employ."); USA TODAY, New Ethics Charges for N.C. prosecutor, allegedly withheld Duke case evidence by Wendy Koch 25 January 2007 ("Last month, a DNA security's director testified that he and.[DA Mike] Nifong agree to include only DNA matches in their report, not results showing no matches between the accuser and players."); Telegram & Gazette, State Police to Widen probe of crime lab by Associated Press 27 January 2007 (Public Safety Secretary Kevin M. Burke has ordered a comprehensive review of all practices and policies at the state police crime lab.); Metro West Daily News, FBI Investigating Sudbury crime lab/Facility audited twice since 2003 by John Hilliard 26 January 2007 (Crime lab - now under federal. scrutiny following allegations DNA evidence was mishandled by an administrates -- has undergone at least two independent audits since 2003.); Boston Globe, US Audit found more problems at crime lab by Jonathan Saltzman 21 February 2007 (A federal inspection completed in September 2006 found problems with the handling of DNA evidence that go beyond those that prompted the agency to suspend a analyst.); USA TODAY, Briefs, Across America 2 February 2007 (Federal investigators found problems with the handling of DNA evidence at the state police laboratory.); Metro West Daily News, DNA abuse sends shock waves by Casey Ross 18 January 2007 (Chief counsel for the committee for Public Counsel Services writes a letter requesting the formation of a special commission to investigate the causes of wrongful convictions. "The larger issue is the continuing threat to the accuracy of verdicts in Massachusetts criminal cases by both human error and deeply flawed but long established procedures which virtually guarantee a ... stream of wrongful convictions," said William J Leahy.); Lawyers Weekly, Contesting Fingerprints A Weapon for Defense Bar by John 0. Cunningham 16 February 2004 (Lawyers say fingerprint evidence can be fought under new Daubert admissibility standards.); USA TODAY, Across the USA/News from every state, 15 February 2007(The state crime lab mishandled DNA test results in 27 sexual assault cases, nearly twice as many as originally thought. Robert E Pino let the statute of limitations expire while he searched the genetic profiles of convicted felons family members, a violation of agency practice, authorities said.); Boston Globe, Crime Lab botched 27 DNA results/nearly twice as many as state found earlier by Jonathan Saltzman 14 February 2007 ("there are enormous implications to the failure of the State Police crime lab in this instance, not the least of which is the potential for innocent people being convicted," said Jarrett T. Barrios, co chair of the Joint Committee on Public Safety and Homeland Security. "We're just accepting the assertion that mistakes in unnamed cases have caused no harm, and that's hardly satisfactory," said William J. Leahy, chief counsel for the State Committee for Public Counsel Services.); Telegram & Gazette, DNA matches botched in 27 sexual assaults by AP of 15 February 2007 ("It's certainty a fair question, but it's one we don't have an answer to," said Public Safety Secretary Kevin Burke.); Boston Globe, Another problem found at DNA lab by John R. Ellement 21 February 2007 (12 DNA profiles of sex suspects were illegally in the lab's database of convicted felons. "Why are the samples being taken illegally? That sounds like 12 violations of law," said CPCS chief Bill Leahy. "There may be more information. The 12 could just. be the tip of the iceberg."); Lawyers Weekly, Lawyer challenges DNA evidence in wake of crime lab's mistakes by David E. Frank 26 February 2007; Boston Herald, "Police chemist claims he's a fall. guy/Blames crime lab woes on inadequate resources" by Casey Ross 3 March 2007 ("It was a systematic error," said Robert E. Pino. "Even after this filing [of the DNA matches] was OK'd, no one thought there was a need for a different kind of tracking system. No one. ever asked about these cases. No one was vigilant."); Boston Globe, "Director of crime lab quits post/ State Police facility's work is under fire" by Jonathan Saltzman 10 March 2007 (Dr. Carl Matthew,-Selavka.'s "contact with the DNA computer database had been severely restricted to make sure that he could not taint the investigation by the State Police or FBI. 'We couldn't even leave the appearance that he could somehow influence or change the outcome of our internal investigation,'" said Public Safety Secretary Kevin Burke.); Boston Globe, Union Defends suspended DNA database administrator/cites lab funding, staffing problems by Tracy Jan 14 January 2007 (Attorney Robert Griffin, a former chief of Superior Court prosecutions in Suffolk County said he represented a case in which the state crime lab report indicated that semen was found on the victim's body, but the autopsy gave no evidence of a sexual assault. The DNA sample did not match any of the defendants. Ultimately, as the trial date approached, the crime Jab concluded that the DNA sample was not semen, but that it had come from one of the chemists in the lab who had contaminated a sample of protein found in the victim's urine.); Boston Globe, DNA problems prompt novel case by Jonathan Saltzman 6 March 2007 (Robert E. Pino's "alleged mishandling of DNA evidence, which has prompted three sweeping investigations and embarrassed the State Police, is reverberating through the Massachusetts criminal justice system."); Boston Globe, Governor to replace 3 on Parole Board when terms end by Andrea Estes 16 March 2007; Boston Globe, Deval must make the most of his second chance by Joan Vennochi 17 March 2007 ("Kerry Healy tried to paint Patrick as a defender of criminals instead of victims. Her theme did not resonate with voters who liked Patrick. By Election Day, Healey lost the campaign as much as Patrick won it. Now, he runs the risk of looking like an Accidental governor, if he doesn't get his fledgling administration back on track." The case of Ben LaGuer was a factor.); Springfield Republican, Chief quits at state crime lab by Steve LeBlanc 10 March 2007 (The state signed a $267.000 contract for a complete management and operational systems analysis of the lab to be conducted by the investigation and security consulting_ firm Vance, headquartered in Oakton, Va. The report is set to be completed by June 30.); Boston Globe, SJC Upholds conviction in LaGuer case/Appeal was factor in governor's race by Jonathan Saltzman 24 March 2007 ("The Supreme Judicial Court upheld yesterday the 23 year-old rape conviction of Ben LaGuer, whose case dogged Deval Patrick during his gubernatorial campaign last fall but may ultimately have helped him win."); Valley Advocate, Weak Links/The State Police laboratory should be the last bastion of impartiality. Is it? by Eric Goldsheider 22 March 2007 ("Laboratories... should not be an arm of law enforcement where evidence is juiced, or in some cases falsified, to aid the prosecution."); Boston Globe, Patrick apologizes for disclosure missteps by Andrea Estes 6 October 2006 ("He also said it wasn't until reporters asked about the case last week that he learned the results of the DNA tests, which four years ago linked LaGuer to the crime. Patrick said he concluded 'justice has been. served' last week and backed off his support of LaGuer."); Boston Herald, Numbers falling, Hillman attacks own camp's ads by Kimberly Atkins 1 November 2006 (Lt Gov. candidate Reed Hillman "blast at his own campaign" for falling numbers. "I think our advertising spent a little too much time on Benjamin LaGuer and not enough on the issues..."); Boston Herald, Top adviser involved in bid to free rapist by Dave Wedge 18 November 2006 ("Joan Wallace-Benjamin, tapped by Deval Patrick as his new top adviser ...called the con "a talented writer, an intelligent advocate, and a man whose experience and life lessons make him a valuable member of the community."); Boston Globe, From convicted rapist, another cry of racism by Patricia Nealon 24 December 1998 ("Noting that she was at the June parole hearing Urban League president Joan Wallace-Benjamin termed" parole board member Terence McArdle "hostile and demeaning." It is ironic yet sad," Joan Wallace-Benjamin said, "that once again Ben LaGuer is a victim of this kind of racial hatred in an official proceeding, and that his future is held in the balance by men like Mr. MCArdle-"); Boston Herald, Victim's advocates rip Healy for TV ad with rape message by Laura Grimaldi 19 October 2006 ("Any who claims to be a victim advocate or a champion for victims' rights or even has the most remote understanding of victims' issues wouldn't do this," said Mary R. Laudy, executive director of Jane Doe, Inc.") Associated Press, Healy says media made campaign negative by Steve LeBlanc 2 November 2006 (T&G)("The focus appears to have backfired, with polls showing voters' negative feelings toward Healey increasing after her campaign ran an ad that feature a woman walking in an empty parking garage and a narrator saying 'have you ever heard a woman compliment a rapist?' The ad closes with the message; 'Davel Patrick, he should be ashamed, not governor."); Boston Globe, Man sues police for wrongful conviction by Jonathan Saltzman 23 March 2007 (Anthony Powell, Neil Miller, Stephan Cowan and Shawn Drumgold are all suing city officials.); Boston Herald, LaGuer undeterred by highest court's rejection by Dave Wedge 24 March 2007 ("LaGuer could be released on parole if he admits guilt, but he vows he never will. 'I know that's what they want to hear from me. If I could, I would make it easier for them and for myself, but the righteous road is never easy,' he said. ); St Louis Post Dispatch, Prosecutor Lied Says US Judge; Court Delays Trial in Child Rape by Tim Poor 4 May 1990; Chicago Tribune, The Verdict; Dishonor; How Prosecutors Sacrifice Justice to win by Ken Armstrong and Maurice Possley 10 January 1999; Washington Post, DNA Tests confirm Guilt of Man Executed by Va., by Glod and Shear 13 January 2006; New York Times, DNA Ties Man executed. in '92 to the Murder He Denied by Dao 13 January 2006; Washington Post, Burden of proof by Frankel 14 May 2006 (Roger Coleman's "picture was on the cover of Time magazine ('This Man Might be Innocent. This Man Is Due To Die'). He was interviewed from death row on 'Larry King Live,' the "Today' show, 'Primetime Live,' 'Good Morning America' and 'The Phil Donahue Show."); Lanier & Acker, Capital Punishment, The Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577 (2004; Truth and consequences; The Penalty of Death, in Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case (H. Bedau & P Cassell eds. 2004) (discussing the cases of alleged innocence of Rick McGinn and Derek Barnabei, whose guilt remain in doubt despite a DNA test.); Telegram & Gazette, Dame's lawyer may seek dismissal by Matt Bruun 20 December 2006 (John Lachance, attorney for Ronald Dame, arrested in connection with a 1974 slaying in Fitchburg, said "Obviously there's going to be an issue with the DNA."); New York Times, Brooklyn Brief, Case Against Lawyer To Go Ahead 12 October 2005 (Lee Long lawsuit against Barry C. Scheck.); New York Law Journal, Innocence Project Co-Founder Settles Malpractice Claim by Tom Perrotta 21 November 2006; Yale University Press, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Law by Edwin Borchard (1932); Atlantic Monthly, The Case of Sacco and Vanzetti by Felix Frankfurter (1927); European Systems of State Indemnity For Errors of Criminal Justice by Edwin Borchard, 3 J. Am. Inst. Crim. L. & Criminology 685, May 1912 to March 1913 (www.justicedenied.org/ borchard_1913.pdf); Edwin M. Borchard; Wrongful Convictions, 13 Rocky Mountain Law Review 20 (December 1940)-by Max Hirschberg; J. Am. Inst. Crim. L. Criminology, Pathology of Criminal Justice: Innocent Convicted In Three Cases, issue 31 (January 1941); Boston Globe, Studies explore effect of death penalty: Scientist say executions deter homicide by Robert Tanner (AP) 11 .June 2007 (A series of academic studies posit that a once settled argument whether the death penalty deters other murderers. They say the analysis say yes. They count between three and 18 lives that would be saved by the execution of each convicted murderer. Naci Mocan of the University of Colorado abd Cass R. Sunstein of the University of Chicago disagree with each other.); Boston Globe, Duke case conspiracy denied/Lab director says DA never asked for final report 14 June 2007 by Aaron Beard (AP) (Dr. Brian Meehan testified that he did not withhold DNA evidence.);Tony N. Frudakis, Richard Alley, Angela J. Davis, Brian L. Cutler, George Castelle, T. Alexander Hickman, Randall Gromestein, Francis S. Collins, La rence D. Mueller, David Reich, David Pilbean, Arthur J. Eisenberg, Benjamin Greenbaum, George Herrin, Fred Drummond, Stephen Penrod, Mary Long, Ho and Baum, Terri Melton, Robert Polleck, Michael Hammer, Peter Nunes, Elizabeth F. Loftus, Hans Sherrer, Joshua L. Dratel, Mark Danner, Therese M. Day, Fred Cohen, Hisham M. Ramaden, David Paige, Larry Tipton, Simon A. Cole Daniel T. Kobil, Magdalena Zernicka-Goetz, Martin E. Wolfgang, Mark A. Batzer, Julie L. Bonsteel, Gregory Cooper, Jane L. McClullan, Norah Rubin, Richard E. Bisbing, Michael J. Camp, Peter R. De Forest, Hugo Adam Be au, Christopher Basten, Yale L. Rosenberg, Jennifer Mnookin, Ronald J. Al en Naomi Hayes Rosenberg, Jose Sanders, Shene Yeager, Igge F. Goldstein, F E. Inbau, Fredric L. Lederer, Corey J Ayling, Manning A. Connors, Joseph Margulies, Richard A. Leo, Laurie Ann Whitt, James M. Doyle, Elizabeth A. Olson, Daniel L. Schecter, Skip Palenic, Charles J. Pulaski, George G. Woodworth, John C. McAdams, Michael Mello, Michael L. Radelet, Kathleen Dean Moore, Donald E. McNamara, Gene Stanley, David H. Kaye, David Botsein, Brian C. Jayne, Edward J. Kioka Robin C. Miller Gary L. Wells, Karen J. Greenberg, Jose B. Tye, Liza J. Steele, William J. Bowers, Deborah W. De no, George J. Bonebrake, Charles S. Lanier, Stanley D. Dorrance, Joseph B. Ingle, Ronald L. Carlson, John E. Reid, Mark A. Rothstein, Robert Iraola, Alan W. Clarke, Daniel L. Schecter, Paul R. Billing, Venkatesh Naravanmurti, Dennis Dirkmaat, Burton H. Singer, Patricia H. Dugan, Niel A. Weiner, Keith Inman, William S. Best, Winthrop Rockefeller, Donald P. Judges, Glenn L. Pierce, David Bierie, Kathryn Murphy, Walter Gilbert, Norman R. Pace, Marc Scott Taylor, Frederic W. Whitehurst, Lisa J. Steele, Sudhir Sinha, Brian K. Pinaire, Mark A. Batzer, Michael T. Clegg, Diana Borteck, Lisa Griffin, Jean Coleman Blackerby, Donald E. Wilkes, Jr., Dan Markel, Eunyung Theresa Oh, Gerald W. Heller, Walter L. Gershman, James J. Fyfe, Herald P. Fahringer, Scott Christianson, Seth F. Kreimer, David Rudovsky, Ronald F. Wright, James E. Robertson, Jordan Steiker, Akhil Amar, Joelle Moreno, George F. Sensabaugh, Richard C. Dieter, Gerald T. Zerkin, Kevin M. Doyle, Eric Freedman, Joseph L. Hoffman, Benjamin Weiss, Barry Latzer, T. Conrad Gilliam, Dan L. Burk, Richard D. Friedman, Lorraine Flaherty, Joseph F. Savage, Rob Warden, Stephen D. Penrod, Constance Putnam, Jill Soffiyad Elijah, Glenn Puit, Elizabeth A. Johnson, James Watson, Michael Bamshad, Kevin Jones, Harlan Levy, Stephen B. Hromes, Robert A. George, Juan A. Concepcion, Daniel Givelber George C Thomas III, Richard A. Rosen, David B. Wexler, Victor E. Kappeler, J. Dean Carro, Evan J. Mandery, Yale Kamisar, James S. Liebman, David C. Baldus, Fred C. Zacharias, Douglas D. Koski, Samuel R. Gross, Seth D. Kreimer, David Rudovsky, Tim Palmbach, Theodore D. Kessis, Howard A. Harris, Michael M. Baden, Hans Toch, Cary Federman, J. Craig Venter, Joan M. Griffin, Stephen R. Cook, C. Michael Walsh, LaDonna J. Hatton, Robert M. Bohn, John D. Bessler, Kerry Max Cook, James E. Peterson, Michael H. Graham, Saad Gul, Albert B. Harper, Martin Yant, Bob Chatelle, David Horan, Daniel S. Medwed, John Cope Abbott, Francisco J. Ayala, Michael Bourke, Heather Miller Coyle, Jerry Coyne, Peter D'Eustachia, Simon A. Ford, Robert Gaensslen, Gary Harmor, Benjamin Greenbaum, Patricia Haneman, David Housman, Carl Ladd, Robert K. O'Brien, Martin Shapiro, Bill Shields, David M. Benjamin, David DeFoore, Vivian Berger, Mary Robbins, Richard A. Posner, Holly Schaffter, Jane C. Moriarty, David L. Faigman, Stephen E. Fienberg, Bennett L. Gershman, Richard Saferstein, Thomas Liotti, Thomas E. Somoluk, Henry F. Fradella, Christopher H. Asplen, John R. Cross, Abbe L. Smith, Ofra Bikal, Ranajit Chakraborty, Mark Benecke, Paul R. Billing, Joseph L. Peterson, Sheri Seidman Diamond, Michael Avery, Harvey A. Silverglate, Huy Dao, Theodore Dean Kessis, Dean A. Wideman, A Sage Smith, Lawrence Marshall, Stephen B. Bright, Victor W. Weeden, Daniel L. Hartl, Bruce Kovacs, Bruce S. Weir, Edward L. Schumann, John C. Gerdes, Robert H. Kirschner, James F. Crow, Donald A. Berry, Arthur J. Eisenberg, Michael Scott Weiss, Cassandra Smith, James McCloskey, Joshua Lederberg, Irene Merker Rosenberg, Kathryn M. Campbell, Joy Hadwiger, James E. Starrs, D. Michael Risinger, Richard C. Lewontin, James R. Acker, Michael J. Saks, Douglas C. Wallace, Lawrence D. Mueller, David H. Kaye, Mark A. Farley, James J. Harrington, John M. Budler, Paul J. Hagerman, Jonathan J. Koehler, James J. Collins, George M Church, C. Thomas Caskey, Bruce Budowle, Pam Newell, George H. Kendall, Astrid Birgden, Richard J. Wolson, Aaron M. Landon, John T. Rago, Keith A Kindley, Janine Arvizu, Edward Sagarin, Bruce H. Wildsmith, Karen F. Parker, Sandy L. Zabell, John R. Vokey, Ralph N. Haber, Ellen Marrus, J. Dean Carro, Marvin Zalman, H. Patrick Forman, Ronald C. Huff, Jerome P. Kennedy, John A. Stookey, Myriam Denor, Diane L. Martin, David Lazar, Thomas D. Pollard, Stan Fisher, Daniel E. Krane, Betty Layne DesPortes, T omas F. Callaghan, Richard P. Theis, Joseph A. DiZinno, Anne C. Goldbach.); Boston Globe, Stacking juries toward death (editorial) 10 June 2007 ("To the nation's highest court, it is now basically fine if capital juries exclude those whose views extend beyond 'fry him' or 'hang him high.'"); Boston Globe, "Duke case prosecutor is disbarred/'Fraud, deceit' cited in false rape charges by Aaron Beard of 17 June 2007 ("It wasn't just one little oversight," said North Carolina State Bar Disciplinary committee chairman F. Lane Williamson. "This was conduct over an extended period in a very high-profile case."); Boston Globe, State orders pathologist off autopsy/Error in slay case altered charge by J Saltzman 22 June 2007 (Public Safety chief Kevin Burke said he had restricted the work of Dr. William M. Zane, whose personal integrity and professional reputation were skewered by defense lawyers. The State Medical Examiner's office is under scrutiny for a variety of human errors, including the misplacement of the body of a cape Cod man who was mistakenly buried in another man's grave and had to be dug up last month.); The New Yorker, Duped: Can Brain scans uncover lies? by Margaret Talbot 2 July 2007 (In theory, a markedly improved method of lie detection could have as profound an impact as DNA evidence. Joel Huizenga started a company called No Lie MRI. fMRI. The polygraph test is still in use, despite some high profile failures. It failed to cast suspicion on Aldrich Ames, the C.I.A. agent who spied for the Soviets, and wrongly implicated Wen Ho Lee, the Department of Energy scientist, as an agent of the Chinese government.); Telegram & Gazette, Obituary-15 May 2007 (Elizabeth Barry, daughter of Lennice Plante, died after long illness on 11 May.); Boston Herald, System in Works to Prevent Forensic foul-ups by State (AP) 27 June 2007 ( Public Safety Chief K Burke is creating a peer review system. It is the latest in a series of steps to correct problems in the state's Medical Examiner's Office and the State Police crime lab. Mistakes in those offices have led to firings and suspensions.); Boston Globe, Top Judge wants US prosecutor disciplined/Says evidence was withheld at trial by Shelly Murphy 3 July 2007 (Chief US chief Mark L. Wolfe asked the state Board of Bar Overseers to investigate US prosecutor Jeffrey Auerhahn for withholding evidence in a 1990s mafia trial.); Thebostonchannel.com, Team 5 Investigates the State Police DNA crime lab with an exclusive interview with Robert L. Pino. Appearing on the report as an expert forensic scientist was Tim Palbach, Director of the Henry C Lee Forensic Institute.); WBZTV.com, I-Team Report, Is This a State Police Coverup? (A bystander woman along the Boston marathon route was hit and injured by a State Police motorcycle. The State Police is contradicting facts caught on tape.)(Both stories of MSP appeared on 5 July 2007); Boston Herald, The 'Secret' reprimand, an editorial 3 July 2007 ("What if a federal prosecutor is reprimanded for misconduct in secret? Isn't that rather like the proverbial tree-falling-in-the-forest?"); Champinion Magazine, Shattering the Myth: Forensic Laboratories, 24 Champion 18 (2000)(available at www.nacdl.org); Boston Herald, DA: DNA database key in arrest of rape suspect by Laurel J. Sweet of 31 August 2007 (The DNA of Raymond Epps, Jr., was found in the DNA database and prosecutors credit the crime lab.); Boston Globe, Medical examiner officer gets lambasted by Peter Schworm 4 August 2007 (According to a scathing independent report, the chief medical examiner's office was "barely able to fulfill its basic legal responsibilities..."); Boston Globe, State crime lab's reliability by Jonathan Blodgett (OpEd), president of the Massachusetts District Attorney's Association 5 August 2007 ("The Vance report unequivocally endorsed the quality and integrity of the DNA testing provided by the lan and the scientific basis for that testing. Any suggestion that the Vance Report calls into question the reliability of the scientific analysis conducted by the lab is completely unfounded."); Lawyers Weekly, Editorial "The net effect of the 'Duke lacrosse' case" of 2 July 2007 ("Rarely have we seen such a reckless circumvention of responsibilities in Massachusetts. But there are cases of overzealousness here, and some prosecutors are tempted to turn a blind eye to exculpatory evidence."); Boston Herald, Report finds M.E.'s office operation nearly crippled by Laura Crimaldi 4 August 2007 ("It borders on the incredible that the intake and release of human remains (and personal effects) from a government agency is governed by a 'verbal understanding' of the process by OCME personnel," the reported noted. "One employee noted in their interview, "It's amazing that we have not lost more bodies."); Associated Press, Lent's lawyers look into case of police fraud by AP 27 June 1994 (Attorneys for Lewis S. Lent, Jr., are seeking information about three New York State Police troopers convicted of falsifying fingerprints. Lent is accused of killing 12 year old Jimmy Bernardo in 1990 and the presumed abductor of Sara Anne Wood.); Journal of Forensic Identification, "Detection of Forged and fabricated Fingerprints, 44(6) 1994); Savannah Morning News, "Sad Day for Honest cops 17 January XXXX (Garden City Police Sgt. Sam Kaminsky was convicted of planting false fingerprint evidence in a 1995 armed robbery case.); Lawyers Weekly, Contesting Fingerprints A Weapon for Defense Bar (Robert N. Feldman, a Boston attorney says, "the credibility of fingerprint evidence is now in play.") by John O. Cunningham of 16 February 2004; Telegram & Gazette, One Choice/Firing of state medical examiner key to fresh start (editorial) 9 August 2007;
Craig M. Cooley, Reforming The Forensic Science Community To Avert The Ultimate Injustice, 15 Stan. L. & Pol'y Rev. 381 (2004); Matter of Investigation of west Virginia State Police Crime. Lab 190 W. Va. 321 (1993); McCarty v. State, 1988 OK CR 271 (1988); Steve Mills, Crime Lab Analyst Moved: Worcester Who is Under Fire Sent to Research Post, Chicago Tribune 16 August 2001; Lisa Olsen & Roma Khanna, DNA Lab Analysts Unqualified, Review Finds Education, Training Lacking, Houston Chronicle 7 September 2003; Leslie A. Pappas, Crime Labs Follow Strict Rules, But Scientists Can Make Errors, Philadelphia Inquirer 18 July 2003-(All of these cases recent scrutiny of allegations, some proven, some admitted, some under review--of grossly negligent or deliberate misconduct by laboratory personnel and their accompanying perjurious testimony.);
Criminal Law Bulletin, The Use of Proper Procedure in Conducting Scientific Tests: Healing the Achilles Heels of Forensic Science by Edward J. Imwinkelried May/June 2007 (In the 1970s the Department of Justice, under the Law Enforcement Assistance Administration, sponsored the Forensic Laboratories Proficiency Testing Project. 235 to 240 crime labs participated. Only 37.4% of the labs correctly concluded whether two bloodstains had a common origin.); USA TODAY, DNA Backlog piles up for FBI Samples increase by 80,00 in '06 by Richard Willings 4 September 2007 (The FBI has fallen behind in processing DNA from nearly 200,000 convicted criminals. "It's embarrassing because it's the FBI, which is supposed to be this powerful organization, but it's not surprising," said Lawrence Kobilinsky of John Jay College.); USA TODAY, DNA lag leaves potential for crime by Richard Willings 4 September 2007 (The consequences of not processing DNA samples leads to missed opportunities to solve old and prevent new crimes.) Boston Herald, Duke Players seeking 30M in false rape charges by AP 8 September 2007 (Players seek millions and reforms in the legal process.)
Gail S. Goodman, T Alexander Hickman, David W. Scott, Bruce H. Wildsmith, Rebecca Copeland, Donald A. Dripps, Douglas W. Vick, Keith A. Findley, Jodi Wilgoren, Tracy L. Snell, Eliza Steelwater, Brent E. Newton, Paul M. Barrett, Kathy Swedlow, G. Nicholas Herman, Wayne R. Lafave, John G. Douglas, Clive A. Stafford, Patrick D. Goodman, Victor L. Streib, Richard A. Rosen, George C. Thomas III, Saul M. Kassin, Katherine L. Kiechel, Allison D. Redlich, Siegfried Ludwig Sporer, Elizabeth A. Bawden, Charles Landesman, Alan Barlow, Margery Malkin Koosed, Jordan M. Steiker, Carol S. Steiker, Gennaro F. Vito, John C. Boger, Charles S. Lanier, Ernest van den Haag, Norman L. Greene, Yale L. Rosenberg, James A. Curry, Stephen L. Carter, Gregory L. Summe, Angela Y. Davis, Deena Skolnick Weisberg, Hank Greely, Lawrence Farwell, Ioannis Pavlidis, Bella DePaulo, Charles Bond Jr., Aldert Vrij, Joel Huizenga, Bruce Arrigo, Richard R. Bennett, Marcia G. Doyle, Henry P. Henderson, Charles F. O'Rear, Dennis J, Reeder, Migdalia DeJesus Torres DeGarcia, Gwen B. Pino, Mary K. McGilvray, Kellie Bogosian, Lisa Lane Schade, Lisa Calandro, Robert N. Sikellis, Jacki J. Higgins, Dwight E. Adams, Lawrence A. Presley, Robert W. Knapp, Alissa Gindlesperger, Edward N. Karcasinas Jr., Richard Guerrieri, Stuart G. Smith, Siman A. Cole, Jennifer L. Mnookin, Maria E. Recalde, Jeffrey J. Pyle, Leona D. Jochnowitz, Eric May, Ian W. Everett, Robin C. Miller, Kathryn M. Campell, David A. Davis, Andre Moenssen, George C. Bonabrake, Pat A. Werthein, George L. Garfinkle, Randy S. Champman, Dianne L. Martin, George Castelle, Alexander T. Stookey, Randall Gromestein, Francis S. Collins, David Lazar, Lawrence D. Mueller, David Reich, David Pilbeam, Douglas C. Wallace, Arthur J. Eisenberg, Benjamin Greenbaum, Robert E. Gaensslen, James L. Wayman, Ralph Norman Haber, Tamara F. Lawson, Tara Marie LaMorte, Jane Campell Moriarty, David A. Stoney, Jessica M. Sombat, Teresa K. Baumann, Mark A. Rothstein, Manning A. Connors, Aaron P. Stevens, Francis A. Gilligan, Fredric I. Lederer, Samual R. Gross, D. Michael Rising, Inge F. Goldstein, Meghan A. Dunn, Ronald L. Carlson, Edward T. Blake, Edward J. Kionka, Kristine Strachan, Michael B. Mushlin, John R. Gross, Gisli H. Gudjonsson, Gary T. Trotter, Terrence F. Cavannaugh, Norman Fell, Erik M. Altmann, Remy Voisin Starns, Craig M. Cooley, Stephen B. Bright, Daniel T. Kobil, Vaughn M. Bryant, Dallas C. Mildenhall, Gera-Lind Kolarik, Brent E. Newton, Bryan A Stevenson, Kristina G. Van Arsdel, Russell L. Weaver, Kelly Ann Cheesman, Robert M. Worley, Michale A. Caldero, John P. Caldero, Lauren E. Fradella, Edgar W. Butler, Michael Korengold, Victoria Palacios, Jonathan F. Lanzner, Andrew A. Moher, Diane Marie Amann, David H. Kaye, John P. Crank, Joycelyn M. Pollock, Saundra D. Westervelt, John A. Humphrey, Ian W. Evett,
Siegfried Ludwig Sporer, Elizabeth A. Bawden, Charles Landesman, Alan Barlow, Margery Malkin Koosed, Jordan M. Steiker, Carol S. Steiker, Gennaro F. Vito, John C. Boger, Charles S. Lanier, Ernest van den Haag, Norman L. Greene, Yale L. Rosenberg, James A. Curry, Stephen L. Carter, Gregory L. Summe, Angela Y. Davis, Deena Skolnick Weisberg, Hank Greely, Lawrence Farwell, Ioannis Pavlidis, Bella DePaulo, Charles Bond Jr., Aldert Vrij, Joel Huizenga, Bruce Arrigo, Richard R. Bennett, Marcia Green Doyle, Henry P. Henderson, Charles F. 0 'Rear, Dennis J. Reeder Migdalia DeJesus-Torres De Garcia, Gwen B. Pino, Mary K. McGilvray, Kellie Bogosian, Lisa Lane Schade, Lisa Calandro, Robert N. Sikellis, Jacki J. Higgins, Dwight E. Adams, Lawrence A. Presley, Robert W. Knapp, Alissa Gindlesperger, Edward N. Karcasinas, Jr., Richard Guerrieri, Stuart G. Smith, Simon A. Cole, Jennifer L. Mnookin, Maria E. Recalde. Jeffrey J. Pyle, Leona D. Jochnowitz, Eric May, Ian W. Evett, Robin C. Miller, Kathryn M. Cambell, David A. Davis Andre Moenssens , George C. Bonabrake, Pat A. Wertheim, George L. Garfinkle, Randy S. Champman
Katherine Ketcham, Gary M. Ermdorff, Jan G. Ahrens, Lonnie Brian Richardson, Joseph A. Spadaro, Lisa Rodriguez Navarro, Franklin E. Zimring, Nancy S. Marder, Katheryn K. Russell, Dragan Milovanovic, Alan M. Dershowitz, Steven D. Clymer, Kirsten Lela Ambuch, Jaime Oraa, Allison Marston Danner, John W. Clark III, Solomon M. Fulero, Robert M. Bray, Audret M. Noble, Linda A. Foley, Minor H. Chamblin, Henry T. Greely, Daniel P. Riodan, Nanibaa A. Garrison, Joanna L. Mountain, Christian P. Robert, Erica Haime, Meghank K. Talbott, Mark A. Rothstein, Paul M. Monteleoni, Sheila Mchaughlin, Edward M. Lemert, Carl B. Klockars, Denise A. Hine, Kimberly J, Saudino, Steve Irsay, Stephen S. Owen, Tod W, Burke Lisa Hurts, Richard Hertling, Robert Fram, John M. Greally, Dana Waring, Levi Garraway, William Hahn, Keith Batchelder, Kathy Hudson, Micha Angrist, Esther Dyson, Rosalynn Gill-Garrison, Dr. John Halamka, Stanley Lapidus, Dr. Kirk Maxey, Dr. James Sherley, David Lordkipanidze, Zhiping Weng, John S. Mattick, Isidore Rigoutso, Dr. Isaac Kohane, Mary Beeton,
Colin Beavan, Francis Galton, Dick Clason, Edward D. Campbell, Mark Acree, Russel Bradford, T.G. Cooke, Sir. Edward R. Henry, Robert D. Olsen, Alan L. McRoberts, Linda Bateman, Mary Brandon, Kathy Egli, Astrid Unander, Harold Cummins, Thomas Jones, G. Tyler Mairs, Donald F. McBride, Charles Parker, Wendell W. Clements, Dean Greenless, Kurt E. Kuhn, Clieve A. Barmum, Darrell R. Klasey, Stephen Bentley, Rob Cheeseman, Lisa DiMeo, Diane L. Donnelly, A.J. Jumper, Joe Maberry, Pierre McMahon, Robert A. Miller Jr., Janet Nelson, Mark Spawn, James G. Shipman, Scott Spjut, Steve Todd, Susan Yount, Alison Schell, Dave Wade, Ivan Futrell, Eric Berg, George Reis, Allyson Simons, Howard A. speaks, William A. Snare, Kurt E. Kuhn, Eugene Czarmecki, David R. Ashbaugh, Joseph Bonino, Sandra Wiese, I.W. Evett, R.L. Williams, William F. Leo, Kathleen Saviers, Pat Wertheim, Dwane S. Hilderbrand, Andre Moeenssens, Jose R. Almiral, Kenneth G. Furton, Sharon Allen, Tom Ferriola, Dean H. Garrison, James G. Cron, Iain McKie, Doug Monsoor, Shaheen Bibi Aumeer, Allyson A. Simons, Ed German, Steve Scarborough, Ray York, Glenn Langenburg, Robert Epstein, Cregor Datig, Wayne G. Plumtree, Joe Scerra, Leigh Skipper, Dr. William Babler, Edward German, Don Ziesig, David Stoney, Marilyn Peterman, Eric W. Brown, Michael Mello, Stephen L. Carter, Sheri Lynn Johnson, Mary Lynn Elizabeth Holland, Jennifer Mikel, Margaret Vandiver, Theodore John Kaczynski, Scott Sunby, Benjamin Flourt-steiner, Andrew Taslitz, Scott Howe
Sentinel & Enterprise, August 11, 1986 "Serious Questions Linger Over Brutal Leominster Rape" by Richard Nangles; Sentinel & Enterprise August 12, 1986 "LaGuer Says Crucial Evidence Disallowed from Court Testimony" by Richard Nangles; Sentinal & Enterprise, August 13, 1986 "LaGuer Believes the Police Were Looking for a Quick Conviction" by Richard Nangles; Sentinal & Enterprise, August 14, 1986 "Family Support Keeps LaGuer Going As He Fights Life Term" by Richard Nangles; Telegram & Gazette, January 18, 1987 "Inmate From Leominster Struggles To Win Freedom" by Allen W Fletcher; Associated Press, September 16, 1987 "LaGuer's Struggle for Freedom" by John King; Boston Magazine, October 1987, "Beyond A Reasonable Doubt" by John Strahinich; Boston Phoenix, November 27, 1987 "Toward A Reasonable Doubt" by Frank Connelly; Boston Globe, April 12, 1988 "A Convict Argues for His Freedom: Has Fought 5 Years to be Cleared of Rape" by David Arnold; Telegram & Gazette, April 2, 1989 "Claim Jury was tainted By Racial Prejudice Against Him" by Billing Kingsbury; Worcester Magazine, July 12, 1989 "Why Can't This Man Get a New Trial" by Andrew Baron; Bay State Banner, April 13, 1989 "Inmate Wants Retrial On Assault Charges" by Badiuzzaman Khasru; Boston Magazine, October 1989 "Obsession; When a reporter has finished with the Story, but the story has not finished with the reporter" by John Strahinich; Telegram & Gazette, June 6, 1990 "Review Set for 1983 Case" by Ian Donnis; Telegram & Gazette, December 27, 1990 "Lawyers; Racism Marred Trial" by Ian Donnis; Sentinal & Enterprise, July 12, 1990 "LaGuer Looks Toward the Fall" by Andrew Baron; Telegram & Gazette, June 6, 1990 "Racism Tainted trial, SJC Told" by Ian Donnis; Boston Globe January 9, 1991 "Convicted Rapist Claims Juror Biased, Seeks Release" by Alexander Raid; Telegram & Gazette, January 10, 1991 "Convicted Rapist's Counters Juror's Denial of Racism" by Ian Donnis; -Boston Phoenix, January 4, 1991 "Justice Denied: Did Racist Remards Taint Jury of Ben LaGuer? by John Hashimoto; Boston Globe , May 15, 1991 "SJC: Slur By Juror would be Critical" by David Arnold; Telegram.& Gazette, May 26, 1991 "Interesting Angles in Rape Case" by Billing Kingsbury; Telegram & Gazette, June 3, 1991 "LaGuer Evidence remains Strong Despite Time" by John Conte; Boston Phoenix, August 30, 1991 :''Oxymoronic: For Benji LaGuer, There's No Justice in the System" by Sean Flynn; Boston Globe, August 27, 1991 "Review Begins of '84 Rape Trial to Probe Claim of Ethnic Bias" by Gerald Russell; Worcester Magazine, December 16, 1992 "LaGuer Plans Appeal of Mulkern Edict" by Scott Farmelant; Boston Phoenix, August 13, 1993 "Ben LaGuer's Gets One Shot at Redemption" by Tim Sandler; Sentinal & Enterprise, November 14 1993 "Inmate's Supporters Inspired by His Legal Fight" by Andrew Baron; Boston Herald, July 16, 1993 "There's No Place for Bigotry on Jury" by Leonard Greene; Worcester Magazine, July 14, 1993 "Citizen LaGuer: A Life on Hold" by Allen Fletcher; Boston Globe, October 31, 1993 "The Issue of Racism in Massachusetts Trial" by Robert Jorden; Boston Globe, February 17, 1994 "LaGuer's 10-year Fight for freedom" by Howard Manly; Boston Globe,' March 24, 1994 Editorial "New Trial Justified In Rape Case"; Telegram & Gazette, April 6, 1994 "LaGuer has 'Hope By the Barrel" by Dianne William; Esquire Magazine, May 1994 "And the Truth Shall Set him Free Or Will It?" by John Taylor;
Sentinal & Enterprise, July 16, 1983 "Police Nab Man in Brutal Rape" by Neil Hartstein; Sentinal & Enterprise, December 10, 1986 "Lawyers Confident of LaGuer's Innocence" by Tracy F Seely; Worcester Magazine, March 8, 2000 "Dirty DNA?" by Martha Akstin; Telegram & Gazette, July 6, 2000 "More Rely on 'Miracle' of DNA test" by Matt Bruun; Boston Globe April 6, 2000 "Parole plea meets Skepticism" by John Ellemen; Boston Magazine, May 2000 "The Limits of Testing" by Mark Leccese; Boston Magazine, October 1999, "The Ghost of Willie Horton...Isn't it time to free Ben LaGuer" by Sean Flynn; Telegram & Gazette, August 11, 2001 "Initial DNA test give no answers in LaGuer case" by Matt Brrun; Telegram & Gazette, April 5, 2001 "Patience, not DNA being tested; State stymies LaGuer quest for exoneration," by Dianne Williason; Boston Globe, April 9, 2001 "The Evidence Needs Review" by Adrian Walker; Telegram & Gazette, October 24, 2001 "Delays in Testing Frustrate judge" by Matt Bruun; Boston Globe, October 11, 2001 "Reasonable Doubt, Still" By Adrian Walker; Boston Globe, February 15, 2002 "DNA testing faults evidence" by David Arnold; The Final Call, February 26, 2002 "DNA evidence may Clear Another Black man" by Nisa Islam Muhammad; Boston Globe, January 22, 2002 "Sentenced to a Life of Argument" by David Arnold; Telegram & Gazette, December 12, 2001 "LaGuer alleges Evidence hidden; Fingerprints not a match" by Matt Brrun; Boston Globe, March 24, 2002 "DNA testing backfires for convicted rapist" by David Arnold; Boston Globe, May 22, 2002 "Shock waves and a turnaround" by Mark Jurkowitz
In a highly controversial case Dr. Ed Blake did for the Innocence Project, among Peter Neufeld and Barry Scheck's first DNA cases, Kerry Kotler was exonerated of a brutal rape after 11 years in prison. Four years later, DNA implicated Kotler in a second rape described in Actual Innocence, a book Neufeld and Scheck co-wrote with New York Times reporter Jim Dwyer, as "so galling, so calculating, that it led people to instantly assume that…his release had been some kind of legal trick or sleight of hand." (Dr. Blake, a named consultant for the book, is never identified as the scientist in Kotler's case.) But Dr. Blake even testified at the second trial that police had framed Kotler. The jury disagreed. In Texas, death row inmate Ricky McGinn became a controversy for then presidential aspirant George W. Bush. In that case Dr. Blake's report was used as a basis for executing McGinn despite evidence, cited by Blake, that Texas Rangers had McGinn ejaculated himself for a reference sample---a practice unheard of in all law enforcement. (Dr. Blake did not preclude contamination as a factor.) In Virginia, Roger Coleman was a national death row figure who Time Magazine had put on its cover as a possible innocent man. (Eric S Landers, a finalist to become Harvard University's president, had serious questions about Blake's laboratory and analytical procedures.) But with Barry Scheck as his lawyer, in 2001, Dr. Blake began to fight Virginia over their request that he return all DNA samples in his lab. Blake said further tests might exonerate Coleman. (But Coleman was executed in 1991.) Why would Blake, given his history and those around him to spin (Neufeld begged a New Yorker staff writer not to include their roles in the Kotler case in a story,) ever want to establish that his own report led to Coleman's wrongful execution? Perhaps Neufeld got it just about right when he told the New York Times that "DNA is a 'truth machine', but the human factor can be a spoiler." In 2005, a superior court judgeship was left vacant when Judge Hillman accepted the office of Federal Magistrate. With the favorable vote from Peter L Ettenberg, LaGuer's trial lawyer in 1984 and a member of the Judicial Nominating Committee, ADA Lemire's name was presented to the governor with two other candidates. Why would Ettenberg press Lemire for a judgeship, a man who twenty years earlier denied his client exculpatory fingerprint evidence? In October 2006, Peter Vickery said, "I was the only member of the Governors Council to vote against the appointments {of Mr. Lemire}, Why? Because the LaGuer case cast a long shadow." (www.msn.us/vickeryonLaGuer) (10/12/06). Did Ettenberg even sense an ethical duty to inform the governor that a court ruling was then pending involving Lemire's role in the unethical withholding of evidence? In fact, Ettenberg had provided the defense in 2001 an affidavit attesting to these facts. Boston Herald, Crime lab crisis threatens us all, editorial of 17 July 2007 ("If it weren't so deadly serious it would make a nifty twist for a John Grisham thriller. But the mishandling (or nonhandling of DNA evidence at the Massachusetts State Police crime lab is not a figment of some bestselling author's imagination. It's an absolute travesty."); The New York Times, Trooper Goes on Trial on Charge Of Faking Fingerprint Evidence (no byline) of 28 March 1994, pp B5 (Trooper David M. Beers went on trial for fabricating fingerprint evidence in the wake of other troopers in jail, David L. Harding and Robert M. Lishansky, bragged about the case while interviewing for a CIA job.); Telegram & Gazette, Shocking backlog/State Police lab faces new crisis (editorial) of 22 July 2007 ("The situation is intolerable and legislators and administration must continue to press for new policies and procedures. . . some aspects of the organization of the laboratory itself seem to virtually guarantee performance that is mediocre or worse. . . there was no one to alert the lab when evidence astray or, worst, if a single individual elected to delay or misrepresent it."); Boston Globe, Chaos at the crime lab (editorial) 20 July 2007 ("The Patrick administration should be wary of culturing scapegoats as it begins its reform of forensic units. . . Burke, after all, had termed the DNA lab "disgraceful" back in 2001, when he served as Essex County district attorney. Now he's in a position to do something about it."); Boston Herald, Deval forwards LaGuer letter by Dave Wedge 25 July 2007 (Gov Deval Patrick, who has vowed a hands off approach in the Ben LaGuer case, is raising eyebrows after his office forwarded a request for a review of the convicted rapist's case to top administration officials. "There is absolutely no investigation whatsoever taking place in the LaGuer case," said Public safety spokesman Charlie McDonald.") ; Boston Globe, Backlog at crime lab is in dispute, Prosecutors say it's 2000 cases by John R. Ellement 26 July 2007 ("Told of the prosecutors' criticism yesterday," chief Kevin Burke "insisted that the study found 16,000 untested biological samples that must be processed. He said there is only a difference in semantics. . . "I think we are on the same book and page about it," Burke said. "Everyone is looking at these cases to determine their status, and there will be cases where no action needs to be taken." Essex County district attorney Jonathan W. Blodgett said, "we are all disturbed that there would be some implication that somehow we are covering up or hiding something, because that's just not true." Berkshire County district attorney David F. Capeless said, "The lab isn't in any way connected to a case involving a wrongful conviction." Boston Globe, lab woes might delay Entwistle murder trial by Michael Levenson 25 July 2007 ("The DAs keenly remember when newspapers were full of horric stories of men who were wrongfully convicted and went to prison for very long period of time;" said Geline W. Williams, executive director of the Mass. Asso. of district attorneys, adding, "Because they may find that needle in a haystack that makes a big difference in somebody's life, we're going to go through and weed out cases. . . and then hone in on what is untested and that maybe needs a second look."); New York Times, Study of Wrongful convictions raise Questions beyond DNA by Adam Liptak of 23 July 2007 (Brandon L. Garett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served on average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false--yet juries, trial judges and appellate courts failed to notice."); In a University of Michigan study, by Samuel R. Gross and Barbara O'Brien, says, "In addition, a couple of strong demographic patterns appear to be reliable; black man accused of raping white woman face a greater risk of false conviction than other rape defendants."); Boston Globe, US ordered to pay $101.7m in false murder convictions by Shelley Murphy and Brian R. Ballou 27 July 2007 ("The FBI's misconduct was clearly the sole cause of this conviction," concluded US district court judge Nancy Gertner.); Boston Globe, Meet the $101.7 million dream team by Shelley Murphy 29 July 2007 (Attorneys Victor J. Garo, Juliane Balliro, Michael Avery, Austin J. McGuigan, Joseph B. Burns, Richard D. Bickelman, William T. Koski, Daniel R. Deutsch, Michael Rachlis, Edward Durham and John Cavicchi beat the government, winning a landmark judgment last week on behalf of four framed men. "If you're been in law enforcement and you're been a prosecutor, you get sort of outraged by things that happen to people who are innocent."); Telegram & Gazette, "FBI Frame-up (editorial) 28 July 2007 ("Alluding to a culture of disregard for legal processes within the law enforcement agency, [Judge Nancy Gertner] concluded that former FBI officers. . . for years worked to thwart efforts to bring the truth to light.") Telegram & Gazette, Evidence missing in 1987 slaying by Gary V. Murray 1 August 2007 (A lawyer, Terry Scott Nagel, wants the case of Worcester County Steven M. Siemietkowski, 47 because of missing evidence and improper DNA handling.); Boston Globe, Prosecutor tapped to fix crime lab by Andrea Estes 28 July 2007 (John Crossman, 40, deputy chief of Attorney General Martha Coakley's Criminal Division, is selected to take over the job left by LaDonna J. Hatton, replacing her as undersecretary of public safety for forensic services. "We have a couple of agencies in crisis," said Chief K Burke, adding that finding "people with experience in law enforcement and an understanding of the agencies that fall under forensic services and have experience managing people, that's a small universe. . . John stood out."); Boston Herald, Chief Medical Examiner Fired by Casey Ross & Laura Crimaldi 3 August 2007 (Gov. Patrick has fired the state's chief medical examiner after an investigation exposed severe management breakdowns leading to botched prosecutions, deplorable health conditions and mishandled bodies.); Boston Herald, History of problems plague ME's office by Laura Crimaldi 3 August 2007 (Since its inception in 1983, the beleaguered Office of the Chief Medical Examiner has been dogged by shoddy work.); Boston Herald, "Police chemist claims he's a fall guy/Blames crime lab woes on inadequate resources" by Casey Ross 3 March 2007 ("It was a systematic error," said Robert E. Pino. "Even after this filing [of the DNA matches) was OK'd, no one thought there was a need for a different kind of tracking system. No one ever asked about these cases. No one was vigilant."); Boston Globe, "Director of crime lab quits post/State Police facility's work is under fire" by Jonathan Saltzman 10 March 2007 (Dr. Carl Matthew Selavka's "contact with the DNA computer database had been severely restricted to make sure that he could not taint the investigation by the State Police or FBI. 'We couldn't even leave the appearance that he could somehow influence or change the outcome of our internal investigation,'" said Public Safety Secretary Kevin Burke.); Boston Globe, Union Defends suspended DNA database administrator/cites lab funding, staffing problems by Tracy Jan 14 January 2007 (Attorney Robert Griffin, a former chief of Superior Court prosecutions in Suffolk County said he represented a case in which the state crime lab report indicated that semen was found on the victim's body, but the autopsy gave no evidence of a sexual assault. The DNA sample did not match any of the defendants. Ultimately, as the trial date approached, the crime lab concluded that the DNA sample was not semen, but that it had come from one of the chemists in the lab who had contaminated a sample of protein found in the victim's urine.); Boston Globe, DNA problems prompt novel case by Jonathan Saltzman 6 March 2007 (Robert E. Pino's "alleged mishandling of DNA evidence, which has prompted three sweeping investigations and embarrassed the State Police, is reverberating through the Massachusetts criminal justice system."); Boston Globe, Governor to replace 3 on Parole Board when terms end by Andrea Estes 16 March 2007; Boston Globe. Deval must make the most of his second chance by Joan Vennochi 17 March 2007 ("Kerry Healy tried to paint Patrick as a defender of criminals instead of victims. Her theme did not resonate with voters, who liked Patrick. By Election Day, Healey lost the campaign as much as Patrick won it. Now, he runs the risk of looking like an accidental governor, if he doesn't get his fledgling administration back on track." The case of Ben LaGuer was a factor.); Springfield Republican, Chief quits at state crime lab by Steve LeBlanc 10 March 2007 (The state signed a $267,000 contract for a complete management and operational systems analysis of the lab to be conducted by the investigation and security consulting firm Vance, headquartered in Oakton, Va. The report is set to be completed by June 30.); Boston Globe, SJC Upholds conviction in LaGuer case/Appeal was factor in governor's race by Jonathan Saltzman 24 March 2007 ("The Supreme Judicial Court upheld yesterday the 23 year-old rape conviction of Ben LaGuer, whose case dogged Deval Patrick during his gubernatorial campaign last fall but may ultimately have helped him win."); undeterred by highest court's rejection by Dave Wedge 24 March 2007 ("LaGuer could be released on parole if he admits guilt, but he vows he never will. 'I know that's what they want to hear from me. If I could, I would make it easier for them and for myself, but the righteous road is never easy,' he said."); Boston Globe, SJC upholds conviction in LaGuer case by Jonathan Saltzman & Andrew Ryan 24 March 2007 ("The Supreme Judicial Court upheld yesterday the 23 year-old rape conviction of Benjamin LaGuer, whose case dogged Davel Patrick during his gubernatorial campaign last fall but may ultimately have helped him win."); The Republican, 4 men charged in DNA Tampering by Buffy Spencer 17 March 2007 (Hampden County DA William M. Bennett has indicted four individuals on charges of attempting to switch identities by trading their jailhouse bracelets when having blood drawn for a DNA test. State Police safeguards, which included a fingerprint match, revealed the deception. All four have been charged with conspiracy to tamper with the DNA record. This is the first state prosecution of its kind.); Boston Globe, Healey rejected by theater board by Mark Shanahan 4 April 2007 (American Repertory Theatre board members, in a 2½ long meeting last month specifically mentioned "a controversial television ad aired by the Healey campaign that linked Patrick and Benjamin LaGuer, who has professed his innocence since his 1984 rape conviction and has corresponded with Patrick over the years."); Associated Press, Prosecutor in Duke case apologizes to 3 athletes by Aaron Beard 12 April 2007 ("To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused," said Mike Nifong, DA of Durham County. "You can accept an apology from someone who knows all the facts and simply makes an error," said Jim Cooney, a defense attorney for one of the lacrosse players. "If a person refuses to know all the facts and then makes a judgment, that's far worse, particularly when that judgment destroys lives."); Boston Globe, a editorial entitled Duke lacrosse case: Prosecuting a stenotype 13 April 2007 ("Prosecutors need to be wary of other stereotypes--about race and poverty--in cases where suspects lack wealth or connections."); Boston Globe, DNA chief fired over crime lab problems by Jonathan Saltzman 14 April 2007 (Robert E. Pino was terminated of his employment by the secretary of public safety.)
Telegram & Gazette, Police testimony decision to stand - Judge ruled officer lied under oath by Gary V. Murray 9 December 2003 (Assistant District Attorney Christopher P. Hodges, the head of District Attorney John J. Conte's appeals unit, appeals ruling in which Worcester police Sgt. Timothy J. O'Connor falsely testified in an evidence suppression hearing. Mr. Hodges described the ruling as "clearly erroneous.")(Covering up for police officers lying is a pattern in this office.); Boston Herald, LaGuer readies clemency Request for Deval's Desk by Dave Wedge 20 November 2007 ("Chief among his claims are that the DNA tests, which he initially thought would exonerate him but which instead tied him to the rape, were mishandled. LaGuer said DNA mishandling is a key issue in light of recent troubles at the state police crime lab."); Telegram & Gazette, Convicted rapist seeking from governor by Matt Bruun 20 November 2007 ("The document alleges prosecutorial misconduct--a pair of men's underwear described as a "vital article of evidence" was discarded to cover up its illegal seizure, according to the narrative -- and paints the DNA expert Mr. LaGuer hired as a "rogue" who made inflammatory comments to the media after Mr. LaGuer questioned his findings." Dr. Edward T Blake was that expert.); Associated Press, Convicted rapist plans to file clemency petition with governor by Denise Lavoie 19 November 2007 ("In his clemency petition, LaGuer argues that DNA taken from his apartment was mixed with swabs taken from the victim, resulting in analyst erroneously finding a positive match of his DNA at the crime scene. 'The DNA has never been reviewed by a court of law. It needs to be reviewed,' LaGuer said in an interview.'"); Boston Herald, Revisiting Tavares case, editorial 3 December 2007 ("Worcester County District Attorney Joseph D. Early, Jr., has been busy attempting to rewrite history and convince the world his office had nothing to do with the failure to keep convicted killer Daniel Tavares behind bars."); Telegram & Gazette, Sentence for rape, cruel and unusual, letter to the editor 28 November 2007 ("Benjamin LaGuer, guilty or innocent, has served 24 years for rape and assault. This man needs to leave prison." Robin Van Liew); Sentinel & Enterprise, LaGuer seeking clemency from Patrick 20 November 2007 Al (AP);
I am a Massachusetts prisoner writing to share a testimony of faith and justice. For 23 years, I have devoted myself to the idea that God has a plan for my life. In 1983, I was falsely charged with a sexual assault. I refused a pretrial plea bargain where I could have been released in two years with good behavior and work assignment credit days. Instead a jury found me guilty and I was sentenced to a life term. The interracial nature of the case has never been a silent factor. The State Parole Board has repeatedly denied me parole. In a recent Boston Herald article, the paper said "LaGuer could be released on parole if he admits guilt's, but he vows he never will. 'I know that's what they want to hear from me. If I could, I would make it easier for them and for myself, but the righteous road is never easy' he said." (4/24/07) I would like to send you more information about my life.
I am not writing to have you advocate for me to be freed from prison. I am trying to compel members of the executive and judicial branches of government to ensure the integrity of the evidence that was used against me. Currently, I have requested that the State Police crime lab double-check a DNA test that was performed in March 2002. Prominent scientists have openly challenged the validity of that test. Recently, the crime lab director was fired after a myriad of human errors were uncovered in dozens of DNA cases. Governor Deval Patrick has said that his administration will not intervene in ordering a DNA review of the case, possibly on account of political considerations, even though he was openly critical of the State Police mishandling of DNA cases in all those other instances. "If we're going to use that [DNA] evidence and have that option available to us, then we have to assure that it's consistently professional. And it hasn't been, at least in this series of case," Patrick told the Boston Globe. (1/13/07) I have also written letters to Public Safety Chief Kevin Burke and AG Martha Coakley requesting that they intervene in ordering a review of the DNA test. I would like for you to join me and others in prayer for that review to be performed as soon as possible.
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 conditions 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 be saying, '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 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.
Telegram & Gazette, Evidence forges link to '84 crime/Suspect's DNA in N.Y. matches blood sample by Scott J. Croteau 13 December 2007 (New Yorker Craig Minggia, 47, is believed to have murdered 79-year old Lillian Johnson in what "authorities now say appears to be a sex related crime even though Mrs Johnson was not raped."); Boston Herald, Officials backs DOC on Tavares, Burke says DA delayed assault charge response by Laura Crimaldi 15 December 2007 (In a interview with this paper, Public safety chief Burke that DOC officials petitioned Worcester DA to seek criminal charges for the prison assaults two or three times before approval was granted in September 2006. Tim Connolly, a spokesman for the Worcester DA, said: "We're never blamed anyone in this, certainly not Department of Correction."); The Valley Advocate, Halos and Horns, The Advocate's annual gallery of the best and worst reprises the most hopeful and the most appalling events of 2007 of 20 December 2007 ("A horn to Worcester Assistant District Attorney Sandra Hautanen, who stuck to a questionable DNA test as grounds for insisting that Ben LaGuer's 1984 conviction for rape should stand while diverting the attention of the state Supreme Judicial Court from potentially extenuating fact: that the Commonwealth had kept a key piece of evidence in LaGuer's trial out of court. The evidence was the phone cord that was used to tie the victim up and was discovered afterward by the state police. There were four fingerprints on it, fingerprints that were not LaGuer's. Other leads in the case remain uninvestigated as well, yet the Worcester D.A.'s office has shown no interest in information that might exculpate LaGuer."); Boston Globe, Police find widespread drug tampering, nearly 1000 cases affected by Maria Cramer 5 January 2008 (Boston PD uncovers evidence tampering in a sweeping 14-month investigation. State and Federal officials are seeking culprits where drugs were stolen and switched with ordinary white power.); Boston Globe, US Judge chastices Dept of Justice/Blast handling of prosecutor's misconduct by Jonathan Saltzman 5 January 2008 (chief fed judge urges new US Attorney to crackdown on prosecutors not telling truth in court.); Boston Globe, Those exonerated push DNA analyses by Laurie Kellman 24 January 2008 (AP)(Judiciaty Committee Chairman Patrick Leahy called a hearing into session in part to respond to the Justice Department Inspector General Glenn Fine's report last week that found lax oversight by the department caused charges of neglience and misconduct at some police forensic evidence labs to remain unchecked.); Associated Press Audit: Wrongdoing at DNA Labs Unchecked by Lara Jakes Jordan 19 January 2008 (The audit found that the Justice Department doesn't require allegations of wrongdoing at state and local police labs to be reported to independent investigators. Moreover, 34 percent of independent investigators charged with overseeing the labs lacked the authority, ability or resources to do so, according to the report issued by the Justice Department Inspector General Glenn A. Fine. "Guidance and processes are not in place to ensure that allegations of serious negligence or misconduct are referred' to independent investigators."); Lawyers Weekly, Local Lawyer spins a crime yarn with 'Innocence' by Alan S. Pierce (a book review) 14 January 2008 (The story is "somewhat reminiscent of the much publicized case of Benjamin LaGuer, a convicted rapist serving a life sentence, or, as [David] Hosp acknowledges, the wrongful 1997 conviction of Stephen Cowens."); USA TODAY, DNA test fuel urgency to free the innocent, Cover Story, by Kevin Johnson 19 February 2008 (New efforts underway nationwide to identify wrongful convictions.); Boston Globe, Author takes center stage in Worthington Case, Work for defense draws criticism by Jonathan Saltzman February 10, 2008 (Author Peter Manso is viewed by some as self-promoting gadfly and others as a fearless truth-seeker.); Telegram & Gazette, editorial, Custody Concerns, Securing evidence crucial to justice system 30 January 2008 ("It is reassuring that the district attorney's office has launched an investigation into how the Worcester Superior Court managed to lose track of evidence, including large amounts of illicit drugs and other material, in dozens of cases. Although there is no indication vet that any of the missing evidence has resulted in any miscarriage of justice it is nonetheless chilling that the problem went undetected for decades.") USA TODAY, New DNA Links used to Deny Parole by Kevin Johnson and Richard Willing 8 February 2008 (State law enforcement and crime victims are using DNA evidence that links parole candidates to crimes for which they were never prosecuted in an emerging strategy to block early release from prison.); Telegram & Gazette, Kilo of cocaine among unaccounted for evidence/Items missing after move to new courthouse by Gary V. Murray 27 January 2008 (According to Clerk of Courts Dennis P. McManus, "There could have been an order of destruction done and we just don't have the paperwork, or it's in another box labeled something else, or other nefarious reasons."): Telegram & Gazette, Charges dropped; evidence lost by Gary V. Murray 28 February 2008 (Superior Court Judge John S Mccann dropped all charges against Anthony D. Miller, after vital evidence in the case was lost. Mccann described the actions of the investigating officers as "inept and bungling performance."); USA TODAY, DNA test help free man who spent 26 years in prison by AP writer Jeff Carlton 4 January 2008 (Charles Chatman is set free.); Boston Globe, Commutation plea carries a political risk for Patrick by Shelley Murphy 27 February 2008 (Arnold King's request for commutation is approved by Advisory Board of Pardons. "As the governor addresses the issue, the specter of Benjamin LaGuer looms large."); Boston Globe, Flaws seen in DNA program in Ohio by AP 28 January 2008 (Ohio's DNA testing program for inmates seeking to prove their innocence is deeply flawed, with police routinely discarding evidence after trials and court-ordered tests never getting done. Ohio Chief justice Thomas Moyer, said, "When we take someone's life or take their freedom, we have to be certain that we're done everything we can."); Boston Globe, Drumgold legal bills soars for City, Trial next month in Civil Rights case by Jonathan Saltzman 25 January 2008 (Boston has spent more than $1 Million on outside lawyers to fight lawsuit by Shawn Drumgold.); New York Post, 'Wrong man' sues for $22M by Stefanie Cohen 11 February 2008 (Cy Greene spent 222 years falsely in prison on account that state prosecutors withheld exculpatory evidence.); Telegram & Gazette, Leominster rape scene haunted officer by Matthew Bruun 27 March 2002 ("you could still see, even though the shades were pulled," said Oean J. Mazzarella, mayor of Leominster, remembering Tiffsdays as a young officer. "Obviously she was able to see who did this to her."); Valley Advocate, Tragedy Times Two by Eric Goldsheider 5 April 2007 ("If I went out in public with her [the victim]," [Annie K.] Demartino recalls, "everybody saw who was either Spanish or black, she would be saying, that's who did it, that's who did it, and of course it wasn't, because basically they were just people in the street. She was very paranoid at that time about everybody...she hated anybody dark-skinned.")