COMMONWEALTH OF MASSACHUSETTS

WORCESTER, ss.                                          SUPERIOR COURT DEPT.

OF THE TRIAL COURT

 

COMMONWEALTH                                     Criminal Action No. 83-103391-94

v.                                                                    

BEN LAGUER                                 

 

LAGUER’S MEMORANDUM IN SUPPORT OF MOTION FOR NEW TRIAL

Introduction

“The Past lies upon the Present like a giant’s dead body.”

                                                                                    Nathaniel Hawthorne

For more than twenty-seven years Ben LaGuer, 47, has been imprisoned stemming from a 1983 sexual assault.  His conviction stands on complainant’s single cross-racial eyewitness.  Her physician noted “her assailant told her that he would kill her if she told what he looked like but she denies knowing her assailant.” While heavily narcotized at hospital, police asked her to pick out “anybody she knew” from a photo array.  She selected her next door neighbor.

Judge Timothy S. Hillman did not order an evidentiary hearing at the end of the disputed DNA report, as he should have, probably because he had previously been a lawyer to the complainant’s family.[1]  Michael Hillman, Judge Hillman’s younger brother, attended High School with complainant’s daughter.  Tr. 5-7 (March 13, 2000, Volume 1).

When a Telegram reporter asked one of the twelve white jurymen 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.”[2]  In one affidavit, corroborated by the jury foreman,[3] one juror had remarked, “The goddamned spic is guilty just sitting there; look at him.  Why bother having a trial?”  ADA Sandra L. Hautenen testified before the State Parole Board on April 2010, “Perhaps there may have been a little jury bias in the courtroom.  I think nobody really knows.  What happens in a jury room is what happens in a jury room.” [4]

A panoply of newly discovered and withheld evidence entitles LaGuer to a new trial pursuant to Mass.R.Crim.P. 30(b), the Fifth and Fourteenth Amendments of the United States Constitution, and Article XII of the Massachusetts Declaration of Rights. The laboratory biological evidence and analytical assumptions underlining the result of Forensic Science Associates (FSA) is partly exculpatory and partly invalid because prosecutors withheld key evidence. Annie K. DeMartino,[5] a former mental health aide, has disclosed a previously undisclosed relationship between complainant and third party suspect Jose Orlando Gomez; her use of antipsychotic pharmaceuticals and; her indiscriminately (falsely) accusing other colored men of the same disputed offenses.

According to the trial prosecutor, then Worcester County Assistant District Attorney James R. Lemire,[6] complainant had a psychotic breakdown fourteen years prior to the July 1983 assault upon her.  She had been free of antipsychotic drugs for roughly two years.  The appellate courts upheld the trial court’s exclusion of her psychiatric history as remote in time as to be relevant.  In 2003, Elizabeth Barry averred her mother was diagnosed as a schizophrenic and institutionalized in the 1950s.  In 2007 DeMartino revealed that complainant was administered antipsychotics at trial, including Haloperidol.  Both Barry and Demartino illustrate how complainant’s history of psychosis was excluded on the basis of misinformation, exculpatory evidence about the central issue – the reliability of her out-of-court and in-court identification.

Leominster Police Detective Ronald N. Carignan always maintained that complainant inculpated LaGuer in a July 14, 1983 hospital bedside interview.  In fact, 24 hours earlier, the building manager had provided Carignan a detailed socioeconomic briefing on LaGuer.  In April 2001, ADA Hautenen released internal police reports that Carignan had withheld.  One report depicted LaGuer as "a possible suspect" in a residential burglary in which a weapon was stolen, and a second involving a domestic disturbance.  These reports favor complainant’s testimony that she never led him to LaGuer,  that Carignan also had an independent basis to search LaGuer’s apartment other than the one he had averred in the search warrant application.

As a result of Carignan’s spurious claims that no evidence was pilfered from LaGuer or his apartment,[7] Forensic Science Associates (FSA) was not the only one befuddled by this DNA analysis.  On September 27, 2001, Ed Blake of FSA told the Telegram & Gazette, “This is very difficult evidence, there’s no question about it.”  On February 15, 2002, after a bloodstain previously cited as inculpating LaGuer was genetically linked to complainant, a defense lawyer told the Boston Globe “It is but one more finding in a case that feels more and more like something out of ‘Alice in Wonderland.’ ”Newly discovered documents offer a clear picture.  Police acquired LaGuer’s underclothes while searching his apartment in July 1983.[8]

The Massachusetts State Police Crime Laboratory (MSPCL) tested “interior crotch” of his underpants, reporting in November 1983 “nothing of apparent evidential value was detected on these items.”[9] When LaGuer was arrested, Carigan acquired a “yellow cotton jersey” which LaGuer had carried to the station from his home.[10]  (In September 2000, Cellmark detected cellular material on hairs taken from this jersey.)[11]  Carignan had pilfered these samples then lied in ways that disguised mislabeled samples.

In this case, there is genomic data from Phase I and Phase II of a DNA analysis completed in March 2002.  MSPCL pretrial report that bloodstains recovered at the scene inculpated LaGuer.  Phase I revealed no blood on her perineal swabs.  The Q-Tip used to transfer her original pubic hair in a Beaker revealed no inculpating epithelial cells, blood, sperm or seminal fluids.

In Phase II, LaGuer’s DNA was not matched to the usual profile created from biological evidence left on a victim’s body by a rapist.  Since no individual sample had sufficient DNA for a usable genotype, following a court order, FSA congregated nanoparticles from every sample in a Frankensteinian stain.[12]  This stain weigh less than 0.03 billionth of a gram.[13] According to Dr. Lawrence Kobilinsky, Associate Provost of John Jay College Of Criminal Justice, New York, “The minuscule level of DNA the FSA report relies for its conclusions is of an amount that could be consistent with contamination.”[14]  (According to Dr. Donald D. Riley of the University of Washington at Seattle, “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 a gram.”)[15]

         Pursuant to paragraph 4(b) of Judge Hillman’s 12 February 2001 Finding and Order on Defendant’s Motion for DNA Testing, LaGuer was required to sign an affidavit prior to the testing conceding “that the testing I have requested (a) will be destructive of the samples, and that (b) said samples may be destroyed without the opportunity to identify, quantify, or otherwise test potentially exculpatory evidence.” [16]  But ADA Hautanen and ADA Reilly had failed to reveal key facts.   Judge Hillman, the ex-lawyer to the victim’s family, approved this testing protocol --  allowing FSA to develop a DNA profile from samples that the MSPCL had jumbled with hairs and underclothes pilfered from LaGuer and his apartment -- in his role as then superior court judge.  The failure of prosecutors to disclose this key fact left forensic consultants in the dark about the need to isolate and exclude any sample that had come in contact with these pilfered samples.  As a result, FSA could not be said to have accurately interpreted the raw genetic data.  FSA could have offered an alternate reason for the presence of LaGuer’s DNA profile in such a nanoparticle scale.  Prosecutors had a legal obligation to disclose these pilfered samples in a timely manner useful to all forensic experts.  They withheld this exculpatory evidence even after FSA unwittingly had consumed or destroyed the samples in a rigged, pointless and invalid testing protocol.  See. Commonwealth v. Merry, 453 Mass. 653 (2009)  (Commonwealth failed to timely disclose exculpatory evidence in a manner useful to defendant.)

         MSPCL’s Mark T. Grant inadvertently jumbled spoilt samples with other legitimate specimens in their stock of evidence. “I might run two or three cases at once in order to save time.”[17]  Robert N. Sikellis, et al., Final Report and Recommendations Regarding Vance's Operational Assessment of the Massachusetts State Police Crime Laboratory System 29 June 2007 (noting deficiencies in the MSPCL  “documentation mechanisms, protocols, review processes, and most elements of quality management controls.")[18]

The MSPCL had no evidence manual on the minimal standards to guide Grant on the collection, handling, testing or storage of forensic samples.[19] He testified about how the MSPCL handled evidence in the 1980s.[20]  FSA developed a DNA profile from samples previously jumbled with LaGuer's pilfered hairs and underclothes.  This disputed DNA profile is not germane to the genetic identity of the presumptive culprit. LaGuer's DNA is the source of this profile.  The complainant's perineal swabs and smears had all tested negative for male DNA.[21]  At best, LaGuer's DNA linked him to hairs and under clothes from his apartment, not to a crime scene stain.  What prosecutors have orchestrated is a fraud on the court, parole board, and general public.  

The absence of her blood on perennial swabs and smears totally discredits the prosecution’s narrative of a continuous vaginal, oral, and anal assault lasting 8 hours.  But her medical records undercut such claims with a reference that “her anus showed no blood, abrasions or lacerations”.

A police report claiming that her physician had detected sperm in her vagina and throat is demonstrably fraudulent.  Clearly Phase I creates not only reasonable but haunting doubts.  When defining the essential crime elements, the trial judge instructed jurors that rape is forcing a woman to commit vaginal, anal, or oral sex; rape is the unlawful entry of anyone her three apertures by the male sexual organs.  Tr. 582/584.  The absence of her blood on highly probative perineal swabs, inter alias, would entitle a jury to doubt the essential elements of the indictment.  While proof may exist to find somebody guilty of assault and battery, Ben LaGuer has spent 28 years in prison for a rape that now stands discredited by genomic forensic data, medical records, and even fraudulent police reports.

In a 30 March 2002 Telegram interview from his office in Richmond, California, Edward T. Blake of FSA discredited a ludicrous “deliberate” frame-up theory that had no reality to LaGuer’s defense. [22]   LaGuer’s argument was far more plausible then that police had stole his DNA two decades before DNA testing became a forensic tool.  His claim is that police had pilfered underclothes from his apartment and a jersey that he had carried to the police station then, because these items were not mentioned in the search warrant, Carignan lied – putting these items in a two decade circuitous course that distorted the chain of custody record and prejudiced LaGuer with surely unintended consequences.  When Carignan left the MSPCL only with false and fabricated police reports about these pilfered hairs and underclothes, Grant did not (as he should have) individually wrapped each item to safeguard probative crime scene samples from those Carignan had pilfered.  Worse, Grant jumbled the jersey hairs with complainant’s perennial swabs and other samples used in the DNA testing with the “interior crotch” of his underwear.  Logically, these samples sent for DNA testing had to necessarily yield LaGuer’s nanoparticles (A) consistent with his jumbled pilfered hairs and underclothes, (B) consistent with the admitted pretrial laboratory work of Grant and, finally, (C) consistent with a cellular volume 0.03 nanoparticle ordinarily reported in laboratory contamination events.

MSPCL chemist Mark T. Grant reviewed all police reports. Patrolman Timothy E. Monahan quoted emergency room physician Dr. William C. Siegel in his police report as advising police to discard self-abuse because she had semen in her vagina and throat.  Dr. Siegel has denied ever making this statement to the police.  The defense proffers that Dr. Theodore Kessis, an expert in forensic DNA analysis, will testify at an evidentuary hearing instead of serological work, Grant simply affected the sperm claim in Monahan’s report as his own analysis.  Perhaps Grant may be able to explain how he detected a 0.03 nanogram stain with the forensics of his day, when no one else in the world enjoyed similar results?

In recent statements to the Parole Board and appellate courts, ADA Hautenen cited Blake’s (30 March) disparaging comments. Her use of FSA’s gaffe is disingenuous, since Hautenen had to be aware that in 2002 FSA was in the dark about the presence of LaGuer’s pilfered extraneous underclothes and hairs and how they had been inadvertently jumbled with the 1983 MSPCL stockpile of evidence.  Absent a hearing where LaGuer’s proffer of fraud in the DNA testing protocol can be vetted under rules of evidence, the courts and Parole have relied on Hautenen’s newspaper clippings.

In a January 17, 1984 letter ADA Lemire offered LaGuer a plea bargain that paroled him in July 16, 1985.  John Strahinich, senior editor, Boston Magazine, confirmed this plea bargain in October 1987.  Worcester defense attorney Peter L. Ettenberg confirmed this fact also in an April 2010 affidavit to the parole board, having “reviewed my notes related to the trial.”[23]  On September 20, 2010, the Massachusetts Department of Corrections internally published the scores of a nationally recognized evidence-based risk assessment tool -- Correctional Offender Management Profiling For Alternative Sanctions, or COMPAS.  Ben LaGuer scored the lowest measurable risk (1 out of a 10 point scale) predictor for violence and recidivism.  The Parole Board adopted COMPAS in 2009, but LaGuer’s COMPAS score was omitted from their 3 page - single space parole denial memorandum of 11 June, 2010.[24]

 

 

            I. The Trial

In January of 1984, LaGuer was tried on charges of unarmed robbery, breaking and entering, assault and battery, and aggravated rape in Worcester County Superior Court.  Judge Mulkern described the fifty-nine year old woman, 110 pounds and 5’-3” tall, as “particularly fragile and vulnerable person that I have ever seen.”  Tr. 617 

ADA Lemire filed a motion in limine to exclude the woman’s psychiatric background.  Tr. 3-10. [25] He had a dossier while defense counsel was denied her psychiatry records.[26] The trial judge ruled her “prior history of any psychosis is not to be explored before the jury and the objection of the defendant may be noted.”  Tr. 315.[27]

She testified that on July 12, 1983, she returned home and left her keys in the door.  Tr. at 105-06; 137.  She had previously misplaced her keys.[28]  At the scene, she told police that he had a knife and one was visible on her nightstand.[29]   It was discarded.[30] 

She was drinking a cup of tea when a “dark skinned” man wearing jogging shorts and socks entered her unit, struck her face, and threw her to the floor.  She said he raped her orally, vaginally and anally.  Tr. 122-23, 128-147, 167-69; 171-172.  Tr. 333 (reporting rape as “continuously...all night long”).  She was “pretty well dazed and in shock.”   Tr. 181.  The police arrived shortly after 5:00 a.m.  Tr. 243.  She described a very dark skinned stranger.  Tr. 254, 258.

Carignan visited her in the hospital and showed her photographs when she “was quite drugged up,” “heavily medicated,” “so out of it,” and not wearing her reading glasses.  Tr. 171, 175, 179, 181, 192.  She selected LaGuer’s photograph after Carignan asked her to “pick out anybody she knew...”  Tr. 151-52, 350-51. 

On the Monday before trial, Carignan again showed her a photo array.  On the stand, ADA Lemire had her select his photograph.  She identified LaGuer when asked to point out the culprit in court.  Tr. 120, 129, 155, 159, 193.  At trial, she denied describing her assailant to police as “very dark skinned” because his photograph was not of a “very dark” skinned man.[31] She told police that she was hooded with a white plastic bag but the only bag near her was dark green. Tr. 373.  She testified that seven of the eight males in the photographic array in front of her were white males.  Tr. 178.  In fact, the array consisted of eight photos of "dark skinned young males" plus a Polaroid of LaGuer. [32]   On cross-examination, the woman testified that LaGuer had never helped her with groceries or anything.  Tr. 167.  She never told police her assailant spoke in “funny” ways.  Tr. 173.  (LaGuer had a documented stutter since childhood.)  Tr. 412, 479, 557, 570.  She never told police that her assailant had keys to the apartment next door; “No, I am putting my hand on the bible on that”.  Tr. 182.  She denied telling police that the man was nude. Tr. 182.  She claimed no memory of “scratching him at all” saying that she was “too scared”.  Tr. 185.

At trial, complainant selected LaGuer as the person who had once buzzed her apartment.  Judge Mulkern retorted, “Okay, but the testimony also is somewhat unclear.”  (A “No” answer as to whether the person who “buzzed” her apartment was the same person she had seen previously coming from next door.  Tr. 108, 109, 110-111

LaGuer’s defenses at trial were mistaken identity and alibi.  Defense counsel told the Court; “If I am unable to go into her mental condition then quite frankly I really don’t have a defense other than where my client says he was, his word against her word.  She is a fragile, mentally stable woman.  That is in essence the Commonwealth’s case and I have to go after it.”  Tr. 9.  

The sole issue in this case was identification. As the Court instructed the jury:[33]

Now, I am going to talk about identification because there is no question that's a big looming issue in this case. When I say identification, incidentally this is what I mean. I mean, has the Commonwealth proved beyond a reasonable doubt by the evidence in this case that [the victim] has pointed out the right person? And there is no point in kidding ourselves, that's going to be a big-issue, isn't it, before you, the jury." 

Tr. 586

On January 30, 1984, the jury returned all guilty verdicts.  Tr.  596-97. LaGuer was sentenced to life imprisonment.  Tr. 617-18. 

 

Post-Conviction Proceedings Concerning The Woman’s Mental Illness

On February 24, 1984, LaGuer filed a direct appeal, arguing, inter alia, that the court should have examined her medical records from her 1969 mental breakdown.  The Appeals Court rejected this argument, relying on the prosecutor’s assertions:

The record indicates that the complainant may have suffered a nervous breakdown some fourteen years prior to the attack upon her and subsequently underwent drug treatment, which (according to the uncontradicted statement of the district attorney) ended roughly two to two and a half years prior to the attack . . . .  LaGuer contends that the judge’s examination should have extended back in time to the alleged breakdown and the treatment immediately following, but he did not make an offer of proof as to why such medical history was not “so remote in time” as to be irrelevant.  The judge acted within the bounds of sound discretion in delimiting the period of psychiatric records examination to a reasonable period before and after the rape and subsequent identifications. 

 

Commonwealth v. LaGuer, 20 Mass. App. Ct. 965, 966 (1985). 

Prior to the defendant’s cross-examination of the attending physician, a voir dire was held at which the trial judge ruled that the defendant could inquire into what drugs were administered to the complainant and their possible effects on her perceptions.  However, the judge ruled that the defendant could not inquire of the physician as to her earlier psychiatric history referred to above.  LaGuer contends that this ruling deprived him of his Sixth Amendment right of confrontation . . . .  In this case, though, the physician stated at the voir dire that he was unable to express an opinion whether the drugs administered to the complainant would have a greater or lesser impact on a person with a certain psychiatric history.  As that question is clearly not one on which a jury could properly draw a conclusion unaided by expert medical opinion, the defendant has shown no prejudice.  Id. Thus, Demartino would have changed the outcome of the defense motions relating to the psychiatric examination of the complainant access to the psychiatric records and admissibility of psychiatric history.[34]

 

In 1989, LaGuer moved for a new trial.  He argued, inter alia, ineffective counsel for his failure to proffer that schizophrenia may have undermined the woman’s cognitive skills.  Judge Mulkern dismissively ruled that “the issue was thoroughly explored before the jury.”[35]  On appeal, the SJC affirmed:

In support of his contention that counsel should have presented that kind of evidence, the defendant submitted an expert’s affidavit describing the manner in which schizophrenia “may impair the capacity of an individual to accurately report events in a legal setting.”  Neither the expert’s affidavit nor anything in the record demonstrates that there was evidence available to trial counsel that the woman’s mental condition at the time of the attack or at the time of the trial was such that the expert’s opinion was relevant to this case and therefore would have been admissible.  Thus the judge was correct in observing that “[t]he defendant’s position is at its best speculative,” and he was correct in rejecting the defendant’s assertion that counsel was ineffective because he failed to present the type of evidence set forth in the affidavit.   

           

            Clearly, the Appeals Court and SJC relied on representations which are today undercut by Demartino and Barry.  Commonwealth v. LaGuer, 20 Mass. App. Ct. 965, 966 (1985); Commonwealth v. LaGuer, 410 Mass. 89, 93-94 (1991) (emphasis added).[36] 

            In February 2004, LaGuer moved again for a new trial.  He asserted that despite specific requests, Lemire had suppressed an exculpatory fingerprint report.  The Superior Court (Hillman, J.) ruled that the report would not have affected the woman’s credibility. Commonwealth v. LaGuer, 448 Mass. 585 (2007).

Fraud and Errors in the DNA Testing

In January 2000, LaGuer filed a Motion for DNA Testing of Evidence in the County Clerk’s Office.  A quantitative analysis of each sample by Cellmark could not confirm if the nanoparticles were even spermatozoa.[37]

After Phase I confirmed the absence of male DNA on the perineal swabs in August 2000,[38] a finding consistent with the 1983 MSPCL report,[39]  FSA began Phase II.    Since no individual sample had sufficient DNA for a usable genotype, following a court order, FSA congregated nanoparticles from every sample in a single stain. [40]  However, FSA was misled by the failure of ADA Hautenen to disclose the presence of LaGuer’s pilfered underclothes and hairs that were inadvertently jumbled with the 1983 MSPCL stockpile of evidence. National Research Council, DNA Technology in Forensic Science 146 (1992)  ("The prosecutor has a strong responsibility to reveal fully to defense counsel and experts retained by the defendant all material that might be necessary in evaluating the evidence.")[41]  Dr. Daniel L. Hartl of Harvard, says, “If it is correct that 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 samples were mixed by mistake.” 

FSA’s report that Phase II “failed to support Benjamin LaGuer’s claim of factual innocence in the rape and murder” is excludable because “rape and murder” are factually inaccurate (she died of natural causes fifteen years later) Mass. R. Evid. 403 and 702.  The DNA analysis was not, of course, part of the trial record, and its admissibility has never been adjudicated. See. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009);  Commonwealth v. Lanigan, 419 Mass. 15 (1994) This court must assess the proffered DNA analysis and its exculpatory value to LaGuer’s claim of actual innocence.   See. Commonwealth v. DiBeneditto, 458 Mass. 657, 670 (2011) (It is necessary to remand case for further findings by the motion judge concerning the DNA evidence and its importance to a claim of innocence.) 

 

Annie K. DeMartino

In early 2007, attorneys for LaGuer learned that Annie DeMartino, a retired Fitchburg City Councilor, was the woman’s caretaker after the crime.  Ms. DeMartino agreed to speak.[42] 

Ms. DeMartino was employed at the Herbert Lipton Community Mental Health Center (“Lipton Center”) from 1982 to 1988.  The Lipton Center was a residential halfway house for individuals unable to live independently. Through her visits to the clinic, Ms. DeMartino befriended complainant.  Ms. DeMartino discovered that she had a highly abusive husband, a psychotic break for which she was hospitalized, and frequent delusions about visits from the deceased President John F. Kennedy. 

In the summer of 1983, complainant began living at the Lipton Center.  DeMartino interacted with her daily.  DeMartino regularly observed her ingest anti psychotics, including Haloperidol.  Haloperidol was used in the Soviet Union to break the will[43] [44] [45] of notable dissidents.[46]  Their accounts triggered condemnation at the World Psychiatric Association’s 1977 meeting.[47]

At the Lipton Center, where one of the residents was black, Ms. DeMartino observed complainant cringe at his sight. On numerous occasions before and after the trial, when she saw dark skinned men, she would say “That’s the fellow who raped me.”  She never had any recollection of her previous false accusations.

The woman told DeMartino about her friend, a man of Hispanic origin who lived with his mother in her apartment building.  He slept on her couch when his mother locked him out because of his drunkenness. Felicita Gomez, a fellow parishioner of Demartino’s at Saint Francis Church in Fitchburg, told her that she lived at the 89-unit Waterways Apartments with her son and third party suspect José Gomez.   Tr. 547, 548, 557. 

At the scene, complainant denied knowing her assailant’s identity.  Patrolman Timothy Monahan’s reported, “I asked her if she knew who [did this to her] and she stated “no.” [48] Lt. Robert Hebert reported that “she was unable to give me any description of the assailant.” [49] Patrolman Dean J. Mazzarella did not report any comment she made about her assailant’s identity.  Dr. William C. Siegel says that she arrived “by ambulance stating that she was beaten and raped by an unknown assailant.”[50]  Nurse Deborah Brown assisted Dr. Siegel.  Luc Rape Crises Center counselors Linda K. Reedy and Ruth Givens aided complainant.  Dr. Edmund Meadows noted “her assailant told her that he would kill her if she told what he looked like but she denies knowing her assailant.”[51]  Elizabeth Barry told police that her mother had “a nervous breakdown” fourteen years earlier and “had not been right since.”[52]  She informed the hospital staff that her mother was a schizophrenic.[53]

 

 

ARGUMENT

Newly Discovered Testimony illustrates the erroneous exclusion of complainant’s history of psychosis, exculpatory evidence about the central issue – her credibility and the reliability of her out-of-court and in-court identification.

Applicable Legal Standard

LaGuer sought a new trial on the grounds of the Commonwealth's violation of his constitutional rights, as well as the standards governing a new trial under Mass. R. Crim. P. 30(b).  With respect to LaGuer’s constitutional rights, due process of law requires that the prosecution disclose all favorable evidence in its possession that could materially aid him against pending charges.  See United States v. Agurs, 427 U.S. 97, 103-04 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963), Commonwealth v. Tucceri, 412 Mass. 401, 404 (1992).  Where, as here, LaGuer made a specific request for the withheld medical evidence, he is entitled to a new trial if "a substantial basis exists for claiming prejudice from the nondisclosure."  Tucceri, 412 Mass. at 412. Such a basis exists if the undisclosed evidence 'might have affected the outcome of the trial.'"  Id at 404-05 (quoting Agurs, 427 U.S. at 104).  Exculpatory evidence does not mean proof of innocence.  Commonwealth v. Healy, 438 Mass. 672, 679 (2003).  Exculpatory evidence may only corroborate his version of the facts, question a material (though not indispensable) element of the Commonwealth's version, or challenges the credibility of a key prosecution witness.  Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).

 

A. Ms. DeMartino’s expected pivotal testimony is partly newly discovered and partly withheld evidence.

 

Evidence is newly discovered if not reasonably discoverable at the time of trial.  Grace, 397 Mass. at 306; Commonwealth v. Brown, 378 Mass. 165, 171-172 (1979); Commonwealth v. Markham, 10 Mass. App. Ct. 651, 653 (1980).   Here, LaGuer was not aware of DeMartino’s existence until 2007.  Compare Commonwealth v. Iguabita, 69 Mass. App. Ct. 295, 303 (2007) (testimony did not constitute newly discovered evidence because the witness was listed as a defense witness).  The pretrial rulings precluding review of records prevented his discovery of DeMartino.[54]  Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E. 2d 987 (1978)  (“In prosecution for rape, defendant’s right to present defense fully was violated by not permitting defense counsel to cross-examine victim as to whether she had made false accusations of rape on several occasions in past”);  Commonwealth v. Sheehan, 722 N.E. 2d 25, 48 Mass. 916 (2000)(Admission of mental records was necessary to show that complainant had difficulty in rape case separating fantasy from reality.)  Commonwealth v. Morin, 52 Mass. 780, 570 N.E. 2d 37 (2001)(“A defendant has the right to bring to the jury’s attention any circumstance which may materially affect the testimony of an adverse witness which might lead the jury to find that the witness is under an influence to prevaricate; such right is particularly important when charge is rape, because the right to cross-examine a complainant to show false accusation may be the last refuge of the innocent defendant.”)

B. Ms. DeMartino proffers that the woman was ingesting previously undisclosed pharmaceuticals, had falsely accused other dark-skinned males and had a relationship with a third party suspect in the case.

The trial was a duel of credibility.  In order for LaGuer to be acquitted, the jury had to disbelieve the woman.  Her history of psychiatric commitments, domestic abuse, psychotic therapies, hypertension, diabetes, poor vision and liver cirrhosis undercuts the reliability of her identification.  Had the jurors heard about her delusions of visits from John F. Kennedy in 1984, her antipsychosis Haloperidol drug prescription, and her falsely accusing other colored men for the crime that LaGuer was charged, they would have doubted her already weak cross-racial[55]/cross-age[56] identification case.  “Evidence of prior false accusations of specific crime which is the subject of the trial might have itself seriously damaged the complainant’s credibility.”  Bohannon, at 991.

LaGuer was the only colored man in the courtroom.  The complainant was indiscriminately accusing colored men of her attack.  DeMartino could have alerted the Court that situating LaGuer in his seat risked a gross miscarriage of justice.  Mulkern, J., “I’ll take note that the entire panel [jury] venue consists of what appear to be white people.”  Tr. 16.  (The courthouse had no ethnic staff.)  According to Carignan, the woman anticipated LaGuer would be in the courtroom.  Tr. 392.  According to DeMartino, ADA Lemire had shown complainant where LaGuer would be seated.[57]

 Ms. DeMartino’s third-party evidence is not cumulative; the only evidence at trial was that Mr. Gomez had been seen in the building before, not that he had an extensive relationship with her or that he had been in her apartment.  Tr. 61-62, 91-93, 557:5-12 (Gomez had moved away in December 1982,[58]  but a maintenance man saw him on the grounds seven months later.[59]  The man also told her that he was from Fitchburg, the town where the Gomez family had resettled.)  Gomez’s relationship with her may have been akin to his future wife.[60]  In 2003, Barry told WGBH that her womanizing father beat her mother and locked her in closets whenever he left the house.  He first put her in a psychiatric ward in the 1950s.[61] Complainant might have been eager to protect Gomez, her only friend, and let Carignan focus on LaGuer.  ADA Lemire argued that only since the crime mother and daughter had not been on speaking terms.[62] But Raymond Cochran, the building manager since October, 1981, testified that “I wouldn’t know her daughter if I saw her.”[63] 

With DNA undercutting a sexual assault, a jury could have inferred that Gomez had only beaten her, stolen her pocket book then left her tied with the telephone wire. 

In 2007, the SJC dismissed the significance of any withheld fingerprints 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.” LaGuer, 448 Mass. 585 (2007).  The presence of Gomez in complainant’s studio discredits a specific argument of ADA Lemire: “This is very important to recall, the setup of the apartment building.  Who would walk by her door that day? Who? That chap right there is the only person that would have any business walking by her door, Benjamin LaGuer.”[64] Since top layer fingerprints revealed who held the phone last, Gomez could have easily been inculpated.  DeMartino’s testimony, finally, refute Lemire’s explicit argument that Gomez was a phantom of the defense’s imagination:  “There is no evidence the Gomez family was in that apartment at the time.  And, the Commonwealth suggests you use that for whatever you want.  Consider what Mr. Ettenberg said I would argue whether it’s not just to distract and confuse you.”  Tr. 569.  In the Holmes v. South Carolina, 126 Sup. Ct.  1727 (2005):

“Just because the prosecution’s evidence, if credited, would provide strong support for a guilty verdict, it does not follow that the evidence of third-party guilt has only a weak logical connection to the central issues in the case.  And where the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trial of fact.” 

C. Withheld exculpatory police report would have substantially boost complainant's trial testimony that she did not lead police to LaGuer, a critical mistaken identity defense issue.

In April 2001, ADA Hautenen disclosed a police report from Carignan's 1983 investigative files revealing that LaGuer was known to police since November, 1980. One report depicted him as "a possible suspect" in a residential burglary in which a weapon was stolen, and a second involving a domestic disturbance.[65]  These reports undercut Carignan’s testimony that LaGuer had only emerged as a suspect because, in the presence of her daughter, the complainant had inculpated LaGuer in a hospital bedside interview held on Thursday 14 July 1983.  Carignan had clearly retrieved these reports  following his earlier interview with the building manager.  This report would have aided the jury to solve why LaGuer--a black man in a mostly white town whom police understood was squatting next door--was the only tenant interviewed in that 89-unit complex.[66]

Monahan and Carignan left the hospital early Wednesday with a “scant description of a black male very short and small in build.”[67]  “I asked her if he was a black man and to this she said, ‘yes he was, he was very dark skinned.’”[68]  The building manager led Carignan to LaGuer with a series of socioeconomic details of his family.[69]

According to Carignan, complainant made a statement inculpating LaGuer on Thursday morning.  Barry had earlier told her bedridden mother that unless she revealed who had assaulted her, Barry would set herself as “bait” at the Waterways Apartment.  (Barry died in 2007.)  Barry never averred that her mother had inculpated LaGuer when Carignan interviewed them on Thursday, despite multiple appearances before the State Parole Board, political forums, and media interviews. The defense posits that Barry shared no memory of this supposedly salient episode because Carningnan testimony was untrue. The jury may have doubted Caringnan's account owing to his concealed police reports that she never inculpated LaGuer. 

On the eve of the trial, Barry was deleted from Lemire’s witness list.[70]  She should have corroborated Carignan’s claim that, in her presence, her mother had inculpated LaGuer and fairly selected his Polaroid from a photo array.  Lemire would not have displaced Barry unless she had undercut in pretrial interviews Carignan’s version. ADA Lemire’s decision to delete her daughter from his trial witness list at the last hour is directly linked to complainant’s denial of inculpating LaGuer.   

While searching LaGuer’s apartment, Carignan made no effort to take his army portrait that was in plain view on his dresser.[71]   His lack of interest in LaGuer’s only available photograph further undermines his disputed account that complainant had inculpated LaGuer.  Carignan also triggered none of the normal procedures consistent with his claims: LaGuer’s apartment was not put under surveillance; shift commanders did not notify their patrolmen nor did Carignan ever put out an All Points Bulletin with LaGuer’s description.  Tr. 370.  The task of reporting any sighting of LaGuer was left up to the building manager.  Tr. 57. 

Finally, in this case, LaGuer did not emerge as a suspect because complainant inculpated him to Carignan in the presence of her daughter.  ADA Lemire not only failed to ask Barry to coroborate what her mother had allegedly told Carignan from her bedside, but Lemire deleted Barry from the trial witness list.  The newly discovered police reports support complainant’s trial testimony that she did not inculpate LaGuer to Carignan.   Not only does this raise questions over what Lemire was attempting to conceal in excluding Barry, but doubts over whether Carignan ever had a statement inculpating LaGuer in the first place.  See United States v. Agurs, 427 U.S. 97, 103-04 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963), Commonwealth v. Tucceri, 412 Mass. 401, 404 (1992). 

D.  The newly discovered DeMartino evidence is particularly compelling in the context of the weakness of Commonwealth’s case.

The Commonwealth’s meager stock of inculpatory is notable.  Grace, 397 Mass. at 306; Commonwealth v. Bennett, 43 Mass. App. Ct. 154, 162 (1997); see also Commonwealth v. Meggs, 30 Mass. App. Ct. 111 (1991) (granting an evidentiary hearing when potentially exculpatory forensic evidence emerged and “the case rested on less than powerful identification evidence”).  Here, it is well established that the case against LaGuer was devoid of physical evidence.  Commonwealth v. LaGuer, 448 Mass. at 595 (2007) (“the Commonwealth could not place the defendant in the victim’s apartment by means of any evidence...”).  Nonetheless, the SJC cited other rickety factors:

•The woman’s “consistent identification” of LaGuer after spending several hours with him in adequate lighting;

 

LaGuer was wearing the same distinctive clothing when located in his apartment as that described by the woman: jogging shorts, no shirt, and white “tube” socks with colored stripes;

 

•the woman left her keys in her lock the day of the incident and they were never located;

 

•the fresh scratch on LaGuer’s back two days after the incident, coupled with the woman’s “bloody fingernails and blood on one hand”;

 

LaGuer’s differing explanations for the scratch;

 

448 Mass. at 600.

This SJC ruling vastly overstates a case that relies too heavily on the assertions and theories of Carignan.  But, his most important claim, that complainant had verbally inculpated her neighbor was roundly refuted by her trial testimony. (Tr. 181)  The underlying strength of her ID is the conjecture that complainant spent eight hours with him in adequate lighting.  But she initially told police that between ten minutes and two days had elapsed before her rescue. (Tr. 213-14).  “Eight hours must have went by like eight years,” Patrolman Dean J. Mazzarella told the Telegram in March, 2002.[72]  At trial, complainant testified that a man entered her studio at 9:00 PM and stayed until 5:00 AM.  (Tr.149).  But her next door neighbor saw three men and heard them whistling in front of their building at 1:00 AM.  The tenant directly underneath her heard “thumping and howling” between 1:00 AM and 3:00 AM.[73]

  The building manager testified that security lights affixed on the second floor of that edifice shone “outward and downward” toward the parking lot, not inside the apartments.  The nearest light was “twenty feet” to the side of complainant’s window, hanging from a higher floor.  (Tr. 37-8)  Her window shades were either “half up” as she testified (Tr. 113) or her “shades were pulled” as Mazzarella recalled.[74]  Her trial testimony that he covered his face only when he lit the bathroom light (Tr. 140-141)  is contrary to adequate lighting.  As evidence of inferior illumination, the defense points to her inability to describe her assailant’s eyes, nose, mouth, or scars in her pretrial police interview.  Tr. 372.

Second, the SJC accepted uncritically Carignan’s testimony.  After testifying that her assailant was wearing jogging shorts, Carignan had a sudden witness-stand recollection (not previously reported) that LaGuer was wearing a similar outfit when he answered his door.  Tr. 347, 360.  Carignan would not have offered this testimony had he been sequestered during her testimony.[75] LaGuer testified that he did not even own jogging shorts.  Tr. 507. 

Third, Carignan’s theory that LaGuer had stolen complainant’s key is conjectural at best.[76]  The theory is further undercut by evidence of a knife wielding culprit (Tr. 240) and her “jimmied” locking assembly. 

Fourth, a scratch on LaGuer’s back was inconsequential to the verdict, because Lemire did not even mention the scratch in either his opening or closing statements. [77]

She did not recall scratching her assailant at all.  Tr. 185:7-12; Carignan’s testimony that the woman’s hands had no fingernails, Tr. 258:10; and inconsistent testimony about whether her fingernails were bloody.  Compare id. (Carignan’s testimony of “a lot of blood in the area of the fingernails”) with Tr. 211:2-4; 216-16 (Monahan’s testimony of her being “cleaned up” by the time Carignan visited her).  Carignan simply had a memory of LaGuer saying he scratched himself on a nail at a bar. Tr. 357, 404-5.  LaGuer testified he had scratched himself on a bench at Lake Shirley, and denied giving Carignan a different version. Tr. 508.  ADA Lemire never quibbled with LaGuer’s version. Tr. 561-571. 

Surely, Lemire had reasons not to show LaGuer’s bodily photos.  Her face was hit so hard that reconstructive surgery was considered, yet LaGuer’s knuckles exhibit no inculpating evidence of lacerations, abrasions, or contusions. 

Carignan’s claim of a totally naked man, casts suspicion on her neighbor, because her assailant could not have shown up from the street nude.  But ADA Lemire said in his opening statement that her assailant “had removed his clothing” (Tr. 23) and complainant denied describing a totally nude assailant or inculpating her neighbor LaGuer.  (Tr. 181-182).  Complainant also denied knowing the assailant’s identity to six independent individuals.  Patrolman Monahan first heard a woman in distress while standing in the main lobby of the building. (Tr. 202) But getting to her took some time because “there was a green type lawn chair, folding against the door, inside…it was easily openable, took a while to push it, to get by it.”  (Tr. 602) According to Carignan, the lawn chair was tied to her doorknob with a belt. (Tr. 249)  The jury was probably perplexed (as this court must equally be) over how LaGuer had exited through a barricaded door. (Tr. 206, 250, 361, 362, 359, 563)  The jury could have found that Gomez had leaped out of her window (her stolen pocketbook was subsequently recovered in the general direction where Gomez’s family had resettled).  But Carignan incorrectly testified her window was 20 feet high, more than double the window’s actual 8 feet height.

I.                   The Laboratory and Analytical Product of Forensic Science Associates is Partly Exculpatory and Partly Invalid because Prosecutors Withheld Evidence that Articles Pilfered from LaGuer had been Jumbled in 1983 Testing with presumptively probative nanoparticles.

 

A.                False Police Reports And Perjured Trial Testimony Concerning Extraneous and Pilfered Evidence From LaGuer Prevented Forensic Consultants From Selecting A Proper Testing Protocol, Accurately Assessing The Genomic Data And Origins Of Biological Samples.

Detective Carignan’s false claim that no articles had been seized from LaGuer or his apartment denied the defense an accurate chain of custody record. Where the perennial swabs and slides were sterile,[78]  the only other possible source of a few nanoparticules is the “interior crotch” of LaGuer’s underpants and hairs from his jersey, both pilfered by Carignan and extraneous to the forensic investigation.  In September 2000, Cellmark reported a cellular stain on the three hairs.[79]  Carignan testified LaGuer had a jersey on the day of his arrest.[80]  In 1989, a trooper collected this jersey from the local police.[81]  In May 1989 MSPCL Grant testified that, in 1983, “I might run two or three cases at once in order to save time.” 

Obviously, the defense never agreed to develop a genotype of the presumptive culprit using nanoparticles previously jumbled with extraneous samples pilfered from LaGuer. 

With extraneous evidence from LaGuer and his apartment fully on display, FSA’s assumptions about a few nanoparticles became a matter of controversy.  LaGuer requested and Governor Deval Patrick ordered a forensic review.  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.”)[82]

FSA was never privy to chain of custody problems.  According to Edward T. Blake of FSA, “You do the work blindly, you publish the work blindly—before you do the reference samples—then you do the reference samples. And the guy’s either in or he’s out.”[83]  In May 2000, defense attorney David M. Siegel warned, “most of the things that [prosecutors] want to test aren’t things that they’re established authentication of. I mean presumably the things, the slides, the rape kit …were established authentication for but we haven’t done that for all the other stuff. You know, maybe they don’t think that is as important, I don’t know.”[84] Other issues of evidence tampering and contamination should have been known to FSA, but Blake naively told the Telegram in 2004, “Nobody took that position prior to the testing.”[85]  As a matter of fact, in May 2000, ADA Reilly decried foul play:  “[O]ne of the things the testing could tell us is whether or not there are signs of contamination which may lead us to conclude or may lead a court to conclude that there was tampering. It may have been advertent, it may have been inadvertent.”[86]  National Research Council, The Evaluation of Forensic DNA Evidence Report 82 (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.”)

Carignan said in his police report,[87] search warrant,[88] and testimony[89] that no articles were seized in his search of LaGuer’s apartment.  In 2001, the MSPCL had articles from LaGuer’s apartment.[90]  Carignan’s attempt to conceal articles not mentioned in the warrant[91] was not prejudicial until forensic experts, lawyers, and trial court began assessing the probative value of each sample for DNA analysis two decades later .

Carignan’s seizures of these underclothes, despite the legal risk involved, stems from the fact that most of the crime scene evidence had bloodstains.  Tr. 251.  Any discovery of complainant’s blood on LaGuer’s underclothes would have rendered the evidence admissible under the plain view doctrine.  See. Commonwealth v. Cefala, 381 Mass. 319 (1980) (Police obtained a warrant to search the hotel room of a murder suspect for a weapon and certain items of clothing.  Court upheld seizure of a bloodstained handkerchief and tissues not mentioned in the warrant.) 

MSPCL records show a heap of “underclothes from suspect” that Carignan had pilfered from LaGuer and his apartment in 1983.[92]  On May 17, 1989, a trooper collected from the local police two (2) pairs of panties and one (1) pair of men’s underpants.[93]  However, five days later, Lemire presented in Court only two (2) pairs of panties.  “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.”[94]  Judge Mulkern concluded:  “The only underwear in this case consist of two pairs of clearly feminine underwear found at the victim’s apartment.”[95] In July 1998, for reasons not exactly clear, ADA Wysocki requested “also Benjie’s underwear” from the local police.[96] ADA Hautenen testified on 22 April 2010, “obviously, there was men’s underwear in this case” contradicting further Lemire’s 1989 claims that none exist.[97]  LaGuer’s underpant was discarded.[98] 

Dean Wideman says, “If Mr. LaGuer in fact had sexual intercourse with [complainant], especially over an 8 hr period, it is very possible that biological materials would have been transferred from her vagina to his penis and then from his penis to his underwear.”[99]  LaGuer’s underpants revealed no female yeast cells, blood, vaginal secretions or feces.[100]

B.        The DNA Phase II Interpretation Is Invalid.

            Forensic Science Associates (FSA) created a DNA profile from samples previously jumbled in 1983 with samples from LaGuer and his apartment.  Carignan had pilfered underclothes from LaGuer then lied in ways that disguised mislabeled samples.  The test result (Phase II) of FSA is inadmissible because the opinion relies on nanoparticles from LaGuer’s specific hairs and underclothes.  In other words, the analysis and opinion is inextricably tied to extraneous samples that ADA Lemire had asserted (falsely) that police had never collected.  In this case, LaGuer must be afforded a hearing to present an alternative explanation for the presence of these disputed nanoparticles.  So far, LaGuer has been denied any opportunity to call upon forensic experts and summons the prosecution agents responsible for providing fabricated evidence and perjured testimony that mask extraneous and ruinous nanoparticles.  This case stands in sharp contrast to the factual circumstances recently decided in Commonwealth v. Taskey, 2011 Mass. App. LexisNexis 252  (“In sum, the reliability of the opinion, the exposure of it on cross examination, the speculative nature of any claims about the alleged mishandling, mislabeling, and manipulation, and the supportive circumstantial evidence left no substantial likelihood of a miscarriage of justice from the improper admission…)  Also see Skinner v. Switzer, 2011 US Supreme Court LexisNexis 1905 (recognizing the right of state prisoners to DNA testing under Title 42 USC 1983.)  National Institute of Justice Report: post-conviction DNA testing recommendations for handling requests 29 (1999)(In some cases where a DNA match is reported, the match is not meaningful to that particular case from a legal perspective. “Situations where this might apply are when the results obtained are consistent with the individuals from whom the samples were collected i.e., victims results only on vaginal swabs taken from the victim, defendants results only on a bloodstain on defendants clothing.") 

            In Barbosa, the SJC held that DNA forensic science “testing techniques are so

reliable and the science so sound that fraud and errors in labeling or mishandling may be

the only reasons why an opinion is flawed.”  Commonwealth v. Barbosa, 457 Mass 773,

 790 (2010).  A claim of fraud and errors in sample labeling is exactly what renders the

FSA opinion excludable under Mass. R. Evid. 403 and 702.[101] 

In Barbosa, the SJC articulated when a “DNA expert offers an opinion that a defendant (or victim) is included as a possible source of DNA, jurors who learn about the methodology of DNA forensic science from that expert may infer that the DNA profile of the defendant (or victim) matched exactly the DNA profile of the sample from the crime scene.” Barbosa, at 788.  This case shatters that Barbosa assumption because, instead of a crime scene sample, the opinion of FSA is inextricably tied to spoilt nanoparticles, false police reports, perjured testimony and fraudulent biological samples.  See. Commonwealth v. Mattei, 455.Mass.840, 850 (2010) (expert testimony regarding DNA test results subject to balancing of probative value and unfair prejudice). 

Ben LaGuer is already facing charges of interracial sexual assault, the direst of all a black man can stand trial for in this society.  The experience of DNA in the American courts has not been free of imperfections by the careless or unscrupulous.[102] The unfair prejudice of admitting a false opinion in this highly inflammatory case,[103] stems from the risk that a jury will be too confused to evaluate legitimate evidence.  Clearly we cannot expect ordinary jurors to be more competent than the motion judge was in this case.      

In rejecting a new trial in September 2004, Judge Hillman ruled that LaGuer’s DNA “matched the male profile found in ‘pooled sperm,’ including ‘sperm fractions’ taken from the woman’s vaginal, rectal, and oral cavities.”[104]   His legal findings are an exact replica of prosecutors.[105]  According to FSA, however, “since no spermatozoa and no male DNA was recovered from [complainant’s] vaginal/rectal swabs, this evidence is not relevant to the genetic information of [her] assailant.” [106] [107]  The Q-Tip swab used to transfer her pubic hairs yielded no blood or sperm fractions.[108] 

II.        Newly Discovered DNA Evidence Contradicts The Prosecutor’s Account of the Crime.

 

A.        The absence of the woman’s blood on her swabs, where such cellular blood fractions should have yielded in copious levels, is inconsistent with the alleged assault to which the woman testified.

The sexual assault alleged would have left on her remarkable physical and biological evidence for forensic analysts.  Tr. 333 (reporting rape as “continuously . . . all night long”).  But her swabs were soaked only in biological yeast.[109]  The Q-Tip swab used to transfer her pubic hairs yielded no blood or sperm fractions.[110]  The absence of any blood on her perineal swabs supports Meadows note that her “anus showed no blood, abrasions or lacerations.”  Commonwealth v. Haraldstad, 453 N.E2d 472, 16 Mass 565 (1983) (exclusion of corrected testimony was not harmless, where proper medical testimony about the import of absence of sperm could not be written off as insignificant.); Commonwealth v. Dranka, 702 N. E2d 1192, 46 Mass 38 (1998) (Exclusion that defendant charged with rape had a vasectomy and tested negative for the presence of sperm in semen prior to the incident was not harmless.)

B.        Sperm Forensic Report was Misreported.

MSPCL Grant testified that he had reviewed all police reports.[111]  In one report of Patrolman Monahan, Dr. William C. Siegel is quoted as advising police to discard self-abuse because she had semen in her vagina and throat.[112]  The defense proffers that Dr. Siegel will refute at an evidentiary hearing ever making this statement.[113]  In fact, the CSI kit to detect sperm was not even available to him in 1983.  Instead of serological work, Grant simply affected the sperm claim in Monahan’s report as his own analysis. [114]  How could Grant detect a 0.03 nanogram stain when, according to Dr. Ed Blake, “Twenty years ago, scientists would not have been able to detect the evidence.”[115]  Since nanoparticles could not be detected until the advent of DNA sequencing machines, MSPCL officials were unsure if the analysis was even performed.[116]  Cellmark could not confirm if the stain was even spermatozoa.[117] 

C.        The state police lab incorrectly identified the blood type of a bloodstain, negating only evidence even remotely linking Mr. LaGuer to the crime.

At trial, an O Type culprit was gleaned from perspiration on his sock. It was recovered at the scene.[118] In 1987, LaGuer requested a new trial.  He is B Type. [119]  Lemire argued any O Type secretions might be saliva, not perspiration, because she may have been gagged with the sock.[120]  Lemire argued that B Type bloodstains were found on napkins near her.[121] 

The B Type bloodstain implicated LaGuer even further,[122]  Mulkern ruled,  adding that the O Type secretion on the tube sock originated from her saliva.[123]  The SJC accepted Mulkern’s explanation,[124] despite MSPCL testimony that no blood[125] or saliva[126] was detected on the sock. 

In 2000, however, FSA reported the bloodstain on the napkin “is the same as the genetic profile from Plante.”[127]  She was O Type.[128]  In other words, O Type blood from her was misreported as B Type, thus falsely inculpating LaGuer.  This court should do all within its power to correct Mulkern’s mistake.[129]

D.        LaGuer’s Saliva Switch Concealed only Exculpatory Evidence.

In October 1983, after four months of solitary confinement and a legal process that he believed was rigged, the arrival of Carignan at the jail to collect a saliva sample for a blood typing test set off a bout of paranoia. Who'd ever heard of giving saliva for a blood test.  In his state of mind, solitary confinement was enormously stressful,[130] LaGuer gave the saliva of another prisoner. While courts have frowned on LaGuer's action,[131] his compliance would have shown that his B Type was incompatible with the O Type perspiration on the culprit's recovered tube sock.[132]  Lemire had speculated that LaGuer’s bloodtype[133] would match the O Type perspiration on the sock.[134]  In sum, LaGuer stood only to benefit by providing a genuine saliva sample.[135]

 

E.        District Attorney Conflates “Random Match” and “Source Probability” in a Fallacious, Scientifically Groundless, and Misleading Manner. 

 

On May 19 2004 ADA Hautenen and Riley urged the trial court to deny LaGuer a new trial because he “had failed to meet his burden of proof under Rule 30(B) of demonstrating that justice had not been done.  If anything, the post trial preceedings in this case, which defended himself initiated, demonstrate to a mathematical certainty that he committed the crimes of which he was convicted.  As such, further litigatioin is unnecessary and pointless.” [136]

Worcester District Attorney John J. Conte said in a press release after the DNA results, “In 1984 we proved Mr. LaGuer’s guilt beyond a reasonable doubt, that is to a moral certainty.  In 2002, DNA testing has proved Mr. LaGuer’s guilt to a mathematical certainty.” [137]  Mr. Conte erroneously conflated the “random match” probability (i.e., the probability of two men sharing LaGuer’s DNA profile in the human population) with the “source probability” (i.e., probability that a stain from a crime scene originated from LaGuer.) Brief of 20 Scholars of Forensic DNA as Amicus Curiae to MCDANIE v. Brown S. Ct. 665, 670-71 (2010) pp. 11-13 (The improper conflation of random match probability with the probability of guilt or innocence is an error so common it has come to be known as the “prosecutor’s fallacy,” even though some scholars prefer to use the term “ultimate issue error”.) 

FSA estimated LaGuer’s DNA profile will appear randomly in the human population “less than 1 out of 100 million members of the Caucasian and Black population in less than 1 out of 10 million members of the Mexican American population” based on a study of 200 Caucasians, 201 Blacks, and 202 Mexicans conducted by the Serological Research Institute; and a study of 200 Caucasians and 195 Blacks conducted by Applied Biosystems Division. 

FSA could not provide a “source probability” because such data require a fact strength assessment of all non-biological evidence in the case.[138]  Conte incorrectly equated “random match” probability as proof certain of LaGuer’s guilt.

 

CONCLUSION

In conclusion, LaGuer has presented clear and convincing evidence of factual innocence.  Exculpatory DNA discredits a State Police blood typing result that falsely incriminated him.  The absence of male DNA or female DNA from blood on her perineal swabs creates doubts that are not only reasonable, but haunting.  Evidence of her indiscriminately accusing colored men of the disputed rape eviscerates her eyewitness.  As a result of spurious claims, FSA was misled about the presence of LaGuer’s pilfered hairs and underclothes. The MSPCL misreported a sperm analysis.  The presence of third party suspect Jose Gomez in complainant’s studio reanimates the withheld fingerprint dispute.  Withheld police reports substantially supports complainant's testimony that she did not lead police to LaGuer, a critical mistaken identity defense issue.  On behalf of Ben LaGuer, his defenders pray this Court will not allow the verdict to survive another sunrise. 

The injustice done against LaGuer long ago is still reverberating in our lives. “The past is not dead.  In fact, it’s not even past.” (William Faulkner)

                                                Respectfully submitted,

                                                BENJAMIN LAGUER

 

                                                By his counsel,

                                                Robert E. Terk, esq

                                                BBO 494710

                                                5 Almont Terrace, Fitchburg, MA 01420

                                                978-808-7154

                                                (Robert.Terk@yahoo.com)



[1] Boston Herald, judge in rape trial set to be victim’s ex-lawyer by J.M. Lawrence 6 November 2004 (“The judge acknowledged he advised the victim’s daughter about her father’s estate but had little memory of the work.”)

[2] T&G, “Jurors mixed on recent findings in LaGuer case” by Matt Bruun of 13 December 2001

[3] State Police Tpr. Richard D. McKeon and William Kokocinski 6/13/91 interview juror James Dalzell

[4] Testimony State Parole Board 22 April 2010.  (Audio tape available in attorney’s files.);

[5] Sunday Sentinel and Enterprise, “DeMartino bids city council a fond farewell; board member serves Fitchburg for twenty years” by Emily Devlin 27 December 2009

[6] James R. Lemire is currently an Associate Justice of the Massachusetts Trial Court, presiding mainly in Worcester Superior Court.

[7] Follow Up, Investigative Report of July 14, 1983 by Detective Carignan

[8] State Police, Evidence Inventory and Documentation Report of 12 May 2000 by Gwen Pino; 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”); State Police “Record of Evidence Submitted” form of August 3, 1983; MSPCL Nov. ‘83 report, item No 21.

[9] MSPCL Pretrail Benchnotes of M.T. Grant, p.1; MSPCL Nov. ‘83 report, item No 21.

[10] Tr. 344, 379

[11] Report, Cellmark Diagnostics, J.J. Higgins, 5 September 2000 p.2 (“Unknown stain, morphology of cellular material not recognized for identification.”)

[12] 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.

[13] FSA, Report 2, Table 1, Profiler Plus Genes, P4 (February 2001).

[14] Analytical report from Dr. Lawrence Kobilinsky of May 28,.2004 to James C. Rehnquist of Goodwin Procter, Boston. Rehnquist had already filed the previous motion for a new trial on February 11, 2004.   

[15] Testimony of D.D. Riley (Essex 9777CR-0196) (11/24/98) p. 11

[16] Affidavit of Ben LaGuer filed 8 March, 2001

[17] May 22, 1989. Tr. 74

[18] Richard A. McGeary, et al., Audit Report Number GR-70-06-012 US Department of Justice Office of the Inspector General, Compliance with Standard Governing Combined DNA Index System Activities Massachusetts State Police Crime Laboratory, Sudbury, Massachusetts, 26 September 2006

[19] Letter from MSPCL supervisor Gwen B Pino to state legislator Ellen Story 27 August 2003.  (Ms. Pino said “the crime laboratory did not have a manual governing the handling of evidence in 1983.”).

[20] “…not every single item would be listed on the chain of custody form.  What would actually happen would be things would grouped into blocks and then the actual chemist, when the chemist went through the evidence, when he began to do –– or he or she began to do the analysis, then they would make sure that each item, if there were any items that were listed that weren’t there, but notations would have been made but just to save time, everything was bagged together in one box, everything that came in at that particular time was in one box and then at a later time, it would be gone through to determine exactly what things constituted a block of items.  In other words, victim’s clothes might contain three, four or five items.” (Tr. 68)

[21] MSPCL Nov. ‘83 report, Items 18 (“No seminal fluid or sperm cells were detected on the swabs.”);  MSPCL Nov. ‘83 report, Items 15 and 16 (“No sperm cells or seminal fluid were detected on the slides.”);  Report Number 1, FSA, 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.”); Report 1, FSA 15 August 2000, pg 6 (“Examination of the swab from the Pubic Hair Beaker...revealed a low level of epithelial cells; no spermatozoa were detected on this specimen.”)

[22] Telegram, DNA finding difficult to rebut my Mike Bruun 31 March, 2002 (“twenty years ago, [Blake] said, scientist would not have been able to depict the evidence, rendering the theory that someone would have deliberately planted such an amount incredible.”]; Telegram, media fell for tactics of LaGuer by Diane Williamson 2 April, 2002 (“to believe Mr. LaGuer’s ludicrous theory that someone had stole his underwear and sperm 20 years ago, you’d have to believe that a resourceful cop anticipated the advent of DNA testing two decades before its used.”)

[23] Affidavit of Peter L. Ettenberg April 29, 2010  (“I have reviewed my notes related to the trial.  These notes confirm…that such a sentence would have made Mr. LaGuer eligible for parole after two years, and that Mr. LaGuer would be credited for the time he had already served…I conveyed this offer to Mr. LaGuer.  Mr. LaGuer was unwilling to plead guilty, contending he was innocent of the crimes charged.”); John Strahinich Boston Magazine of October 1987 (Ben LaGuer “could have walked out of prison in July 1985.”)  Letter from J.R Lemire to P.L. Ettenberg January 17, 1984 (“Per our conversation at the courthouse, this office is prepared to offer the defendant a twenty year Concord sentence in exchange of his guilty plea.  The victim’s family is quite concerned over her physical and mental health.”); At sentencing, Lemire did not object that Probation Sentencing grids called for a minimum of three years and a lower maximum of twelve years.  (Tr. 616)  Even as Judge Robert V. Mulkern imposed a life sentence, he commented that “he [LaGuer] doesn’t have a background of crime or violence.”  (Tr. 617)

[24] Northpointe Institute, Correctional Offender Management Profiling for Alternate Sanctions, Overall Risk Potential, Screener Larry Lombardi, 20 September 2010; COMPAS Department of Corrections, Risk Assessment Result of Ben LaGuer 20 September 2010;  Parole Board Record of Decision 11 June 2010; Boston Sunday Globe, Inside the New Science of Predicting Violence by Ideas writer Leon Neyfakh 20 February 2011; Boston Globe, Behind High Risk Parole:  If statistical tools had been used earlier, a life may have been saved by Lawrence Harmon 9 January 2011; Report from John A. Grossman and Sandra McCroom, Undersecretaries of Executive Office of Public Safety & Security, to Executive Office of Public Safety & Security Mary Elizabeth Heffernan 12 January 2011; Dr. Lawrence Hipshman, State Forensic Pathological Evaluation Report of 17 February 1984 “LaGuer does not fit either a psychological or pathological profile of a person capable of committing this crime.”  To prepare his report, Dr. Hipshnan met with the twenty-year old inmate for three hours and reviewed (with LaGuer's consent and signed waivers) the Department of Mental Health's (DMH) case studies. BMH psychologists had been collecting observational and evaluative data on LaGuer from his July, 1983, pretrial detention through his February, 1984, sentencing. (Tr 610-611); Dr. Daniel Weiss, State Forensic Psychological Evaluation Report, Not Sexually Dangerous Report of 22 May 1984 (“It seems totally out of character.”).

[25] Copies of all pages of the trial transcript cited in this memorandum have been attached hereto as Exhibit xx.

[26] Memorandum and Order Re: Defendant’s Motion to Examine Medical Records, at 1. 5 January 1984

[27]The trial court permitted questioning only about the medications the victim took while hospitalized at Leominster Hospital just after the assault.  Tr. 7-8; 314-15.

[28] Tr. 64-65

[29] Original, Investigative Report by Lt Robert Hebert, 13 July 1983

[30] The knife does not appear on any list of trial exhibits. Tr. 127, 272.

[31] Tr. 191

[32] Follow Up, Investigative Report of July 15, 1983 by Detective Carignan

[33] One of the jurors who presided over this case, Gerald J. Scalon, spoke about the deliberations of this case when he was excused from duty in Commonwealth v. Felix Torrez (Henry, J., Worcester WORCR2006-01848) ("It all stems from years ago when I was on a criminal trial jury. It's since become very famous. I know I did the right thing but every time it’s brought up politically or something, I have sudden doubts...I'd have to be very, very certain. I've had sleepless nights over it but I think I did the right thing...It was beating up and raping an older woman...It was Benji LaGuer...The victim took the stand and she swore that it was him and his attorney tried to say that it was her eyesight and she proved in my mind that her eyesight was okay...That's why I – but every time it comes up I do have – I guess it's human...")(Transcript of jury empanelment of 12 August 2008, pages 112-117.)

[34] The only records Judge O’Neill reviewed were from the Herbert Lipton Mental Health Center, limited to the period of April 1, 1983 to September 30, 1983.  Ms. Demartino’s statement, however, refers to records kept at Burbank Hospital , the Lipton Center, and the Wright Nursing Home.

[35] Memorandum of Decision and Order on Defendant’s Motion for a New Trial, at 9 (1989). 

[36] Remarkably, these courts concluded (erroneously) that complainant’s schizophrenia was less relevant if untreated and unmedicated at the time of her observations.  This is contrary to current understanding of schizophrenia.  See Laura A. Flashman & Michael F. Green, Review of Cognition and Brain Structure in Schizophrenia:  Profiles, Longitudinal Course, and Effects of Treatment, 27 Psychiatric Clinics of North America 1, 12 (2004) (“research on the cognitive and brain structure correlates of schizophrenia has seen tremendous progress over the past decade....[S]everal studies have indicated that verbal episodic memory and vigilance deficits are particularly prominent, and are observed even in untreated patients in their first episode of the disorder”).

[37] Report, Cellmark Diagnostics, J.J. Higgins, 5 September 2000 p.2 (“Unknown stain, morphology of cellular material not recognized for identification.”)

[38] Report Number 1, FSA, 15 August 2000, pg 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.”)  Report 1, FSA 15 August 2000, pg 6 (“Examination of the swab from the Pubic Hair Beaker...revealed a low level of epithelial cells; no spermatozoa were detected on this specimen.”)

[39] MSPCL Nov. ‘83 report, Items 18 (“No seminal fluid or sperm cells were detected on the swabs.”);  MSPCL Nov. ‘83 report, Items 15 and 16 (“No sperm cells or seminal fluid were detected on the slides.”)

[40] 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.

[41] Thompson, et. al., How the Probability of a False Positive Affects the Value of DNA evidence. J. Forensic Sci. Jan. 2003, Vol. 48 No. 1.  (“The value of a reported DNA match for proving that two samples have a common source depends on two factors: the probability of a random (coincidental) match and the probability of an erroneous match (i.e., a false match due to an error in the collection, handling or typing of the sample.”)

[42] Transcript of Annie K. DeMartino interview of Eric Goldscheider 13 February 2007;  Valley Advocate, Tragedy Times Two by Eric Goldscheider 5 April 2007 (“If I went out in public with her,” 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”); Transcript of Annie K. DeMartino interview with attorneys James C. Rehnquist, Kathy Luz, Joshua Stayn of Goodwin Proctor, Boston, Along with Dr. John Silber, Professor of Law, President Emeritus Boston University 17 April 2008; Sunday Telegram, New LaGuer Trial Supported/DeMartino Raises Question of ID, by Matt Bruun 8 April 2007.

[43] Podrabinek, Aleksandr (1980). Punitive Medicine.

[44] Kosserev I, Crawshaw R (1994). “Medicine and the Gulag”. BMJ (Clinical Research Ed.)

[45] H. L. Verhaar (1982). Biographical Dictionary of Dissidents in the Soviet Union, 1956-1975.

[46] Wade N (November 1976). “Sergei Kovalev: Biologist Denied Due Process and Medical Care”. Science (New York, N.Y.) 194

[47] “Censuring the Soviets”. TIME (CNN). 1977-09-12.

[48] Original, Investigation Report by Timothy E. Monahan 13 July 1983, pp 3

[49] Tr. 241

[50] Burbank Hospital records of July 1983.

[51] Id.

[52] Original, Investigation Report by Timothy E. Monahan 13 July 1983, pp 3

[53] Burbank’s Medical records of July 13-30, 1983.

[54] The SJC stated, “[Nothing] in the record demonstrates that there was evidence available to trial counsel that the victim’s mental condition at the time of the attack or at the time of the trial” was such that a psychiatric expert’s opinion on how schizophrenia would affect one’s ability to accurately report events in a legal setting was relevant to the case.  Commonwealth v. LaGuer, 410 Mass. 89, 93-94 (1991) (emphasis added).  This makes clear that the DeMartino allegations raise issues concerning the victim’s schizophrenia that were not, and would not reasonably have been, known to defense counsel in the past.       

[55] In scholarship studies, jurors have been shown to be less likely to know of, or believe in, the cross racial effect in witnesses.  Also, jurors are no more likely to take cross race effect when they are informed of it and instructed to scrutinize eyewitness testimony more closely.  Abshire, J., & Bornstein, B. H. (2003).  Juror Sensitivity to the Cross Race Effect.  Law and Human Behavior, 27(5), 471-480.

[56] In this case, the Court faces evidence of an elderly woman’s identification of a much younger man.  Recent scholarship has found that all ages exhibit a higher rate of accuracy when identifying a perpetrator within their own age group and lower rate of accuracy identifying perpetrators outside of their own age group. See Anastasi, J.S., & Rhodes M.G. (2006).  Evidence For An Own Age Bias In Face Recognition, North American Journal of Psychology, 8(2), 237-257. 

[57] Sunday Telegram, Interesting Angles in Rape Appeal by Billing B. Kingsbury 26 May 1991.  According to the Telegram’s long time courthouse reporter, Billing Kingsbury, she 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.” 

[58] Tr. 59

[59] Tr. 91

[60] Fitchburg District Court, Application for Criminal Complaint, Officer Farrell, charging Jose Orlando Gomez with rape and assault & Battery (Domestic) on 25 May 1998 (“The wife of the above Defendant stated that he grabbed and punched her as well as threatened to beat her up. The victim states she is in fear of her safety as he is very abusive. Victim also reported being raped.”  Worcester Superior Court 98-0558 Gomez pleads guilty to Assault & Battery, in exchange of rape charges dismissed at the request of prosecutor. Superior Court Judge Peter A Velis sentenced Gomez to 59 days in jail.  He ordered Gomez to attend Batterers program or Anger Management. Stay away from victim.

[61] Elizabeth Barry, Television Interview, Greater Boston, Hosted by Emily Rooney, WGBH July 12, 2003

[62] Tr. 4

[63] Tr. 27, 66

[64] Tr. 563

[65] Internal Leominster Police Department reports: (4/17/80 Ben LaGuer assaulted by Sidney Colson, 80-3646) (10/10/80 LaGuer possible suspect in the break in of Kent Carluccio’s home, 80-10688) In April 2001, ADA Hautenan provided a stack of reports. (While walking home from school one night, a city police officer stopped LaGuer along with two of his friends. The officer collected their names and told them that they may be interviewed about a robbery in the neighborhood. LaGuer never heard from the robbery investigators. However, his name was kept in their internal file.) 

[66] Tr. 27, 368, 369, 393

[67] Follow Up, Investigative Report of July 13, 1983 by Detective Carignan

[68] Id.

[69] Id.

[70] (Lemire had put Barry on his list of prospective witnesses.  Trial Witness List from J Lemire to P Ettenberg 17 January 1984; but, when the judge read the list to the jury, Barry was the only witness scratched off. Transcript of Jury Empanelment 24 January 1984, pp4)

[71] Follow Up, Investigative Report of July 14, 1983 by Detective Carignan.

[72] Telegram, Leominster Raped Scene Haunted Officer By M. Bruun 27 March 2002.

[73] Original, Investigative Report by Lt Robert Hebert, 13 July 1983.

[74] Telegram, Leominster Raped Scene Haunted Officer By M. Bruun 27 March 2002.

[75] Over defense objections, Carignan was exempt from a general sequestration order of witnesses.  Tr. 14.

[76] The building manager testified that complainant often misplaced her keys. Tr. 64-65.  The subsequent discovery of her key in her pocketbook discredited Lemire’s theory of LaGuer stealing her key.  Her pocketbook remains in the custody of Worcester County Clerk of Court.

[77]  Tr.20-26, 561-571

[78] MSPCL Nov. ‘83 report, Items 18 (“No seminal fluid or sperm cells were detected on the swabs.”);  MSPCL Nov. ‘83 report, Items 15 and 16 (“No sperm cells or seminal fluid were detected on the slides.”);  Report Number 1, FSA, 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.”); Report 1, FSA 15 August 2000, pg 6 (“Examination of the swab from the Pubic Hair Beaker...revealed a low level of epithelial cells; no spermatozoa were detected on this specimen.”)

[79] Report, Cellmark Diagnostics, J.J. Higgins, 5 September 2000 p.2 “Unknown stain, morphology of cellular material not recognized for identification.”

[80] (Tr. 347)

[81] In April 2001, the Leominster Police Department 17 May, 1989 Chain of Custody transfer sheets showing, among other articles, a “yellow cotton jersey”.

[82] Letter to Ben LaGuer from Executive Office of Public Safety of 12 July 2007 (“in acknowledgment of your letter regarding the State Police DNA Crime Lab which was forwarded to us by Governor Patrick for response.  Please be advised that your letter has been forwarded to the below name [State Police Superintendant Colonel Mark F. Delaney] and addressed for response.”);  Letter to Ben LaGuer from Executive Office of Public Safety of 11 July 2007 (“please be assured that EOPS is reviewing this matter.  Once all of the facts surrounding this issue have been determined, we will work toward a reasonable and just resolution.”)

[83] Telegram, “More Rely on Miracle of DNA Tests by Matthew Bruun, July 16, 2000.

[84] Transcript of Hearing of 15 May 2000.

[85] Telegram, Conte Rejects LaGuer’s Claim by M Bruun 15 February 2004

[86] ADA Joseph J. Reilly, III, 15 May 2000 pg 17,19

[87] Follow Up, Investigative Report of July 14, 1983 by Detective Ronald N. Carignan.

[88] 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.

[89] Tr. 344, 379

[90] State Police, Evidence Inventory and Documentation Report of 12 May 2000 by Gwen Pino; 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”); State Police “Record of Evidence Submitted” form of August 3, 1983; MSPCL Nov. ‘83 report, item No 21.

[91]Application for a Grant of Search Warrant of Ben LaGuer’s apartment by Det. Ron Carignan 14 July, for these specific items: “Straw pocketbook with personal papers, and US currency, approximately $12.00, 2 Silver rings one with a turquoise stone, all the property of Lennice Plante. 1 tube sock with black and yellow stripes to match one left behind in the Plante apt.”

[92] State Police, Evidence Inventory and Documentation Report of 12 May 2000 by Gwen Pino; State Police “Record of Evidence Submitted” form of August 3, 1983

[93] Dated 17 May, 1989 Leominster Police Chain of Custody Report of Articles transferred to State Trooper William Kokocinski listed among other articles, three (3) pairs of underwear. Also see, Leominster Police Department Report by Lt Michele D. Pellecchia.

[94] Transcript of May 22, 1989, court hearing, p. 7.

[95] Memorandum and Decision Denying a New Trial by Judge Robert V. Mulkern, 2 June 1989 pp9

[96] In a July 8, 1998 letter to Lt. Michele D. Pellecchia of the Leominster Police, disclosed in April 2001, Sandra 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.”

[97] Testimony State Parole Board 22 April 2010.  (Audio tape available in attorney’s files.);

[98] The disappearance of the underwear under ADA Lemire’s custody -- evidence that was critical to the motion then--raises issues of prosecutorial misconduct.

[99] Analytical forensic report from Wideman to state representative Ellen Story of 30 March 2006.

[100] MSPCL Pretrail Benchnotes of M.T. Grant, p.1; MSPCL Nov. ‘83 report, item No 21.

[101] (An expert witness may offer opinion testimony only if the testimony will assist the trier of fact; the witness is qualified in the relevant area; the testimony is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.  These are all preliminary questions of fact for the judge.)  The FSA opinion fails every admissibility prerequisite. Commonwealth v. Nesbitt, 452 Mass. 236 (2008); Commonwealth v. Mattei, 892 N.E. 2d 826, 72 Mass. 510 (2008) (Court concern over juries being fixated on statistical DNA probabilities at the expense of whether the defendant was wearing the sweatshirt on the day of the crime or someone else was wearing his sweatshirt while committing the crime.)

[102] “One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the conviction in 60% of cases”  See Melendez Diaz,  at 2537 citing Garrett & Neufeld, Invalid Forensic Testimony and Wrongful Convictions, 95 Va. L Rev. 1, 14 (2009) Jan. 28 ’10

[103] Garrett, Brandon L.  "Judging Innocence", 108 Colum. L. Rev. 55 (2008); Samuel R. Gross & Barbara O’Brien, “Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases”, 5 J. Empirical Legal Stud. 927 (2008) ( “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.”)

[104] Memorandum of Decision and Order on Defendants Motion for New Trial of 22 September 2004, pg 7

[105] Commonwealth’s Opposition To D’s Motion For New Trial Of May 2004,  pp. 10-11.  ADA Hautenen incorrectly argued that LaGuer’s DNA was “found on cotton swabs used to obtain evidence from the victim’s vaginal, rectal, and oral cavities.”

[106] Report Number 1, FSA, 15 August 2000,  p.9

[107] Judge Hillman made a reference to complainant’s “oral cavities” is plainly incorrect as FSA tested nothing from that part of her body. 

[108] Report Number 1, Forensic Science Associates, 15 August 2000, pg 6 (“Examination of the swab from the Pubic Hair Beaker...revealed a low level of epithelial cells; no spermatozoa were detected on this specimen.”)

[109] MSPCL Nov. ‘83 report, Items 18 (“No seminal fluid or sperm cells were detected on the swabs.”);  MSPCL Nov. ‘83 report, Items 15 and 16 (“No sperm cells or seminal fluid were detected on the slides.”);  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.”)

[110] Report Number 1, FSA, 15 August 2000, pg 6 (“Examination of the swab from the Pubic Hair Beaker...revealed a low level of epithelial cells; no spermatozoa were detected on this specimen.”)

[111] May 22, 1989 Testimony of Mark T. Grant; “Yes.  Detective Carignan, the investigator, always made it a habit to submit the entire police report so I read the entire police report…”) p.47

[112] Original, Investigative Police Report of Timothy Monahan, 13 July 1983 (“Statement of Dr. Siegel at the hospital after exam.  The woman identified as complainant 05/09/24 was in fact raped.  She had contusions of the face, neck, and stomach and there was evidence that she was raped vaginally and orally.  She did state to the doctor that she was also raped anally.  The doctor stated in his medical opinion that she was raped and it was not self-abuse.  There was evidence of semen in the vagina and throat.”)

[113] She remains his only clinical case involving a rape allegation. He became a board certified cardiologist.

[114] MSPCL Nov. ‘83 report, item No 17

[115] T&G, “DNA Finding Difficult to Rebut” by M Bruun of March 31, 2002; Forensic Science Associates, Report 2, Table 1, Profiler Plus Genes, P4 (February 2001) (Forging a genotype with less than 0.03 nanograms)

[116] 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.”); Report 1, FSA 15 August 2000, pg 6 (“Examination of the swab from the Pubic Hair Beaker...revealed a low level of epithelial cells; no spermatozoa were detected on this specimen.”)

[117] Report, Cellmark Diagnostics, J.J. Higgins, 5 September 2000 p.2 (“Unknown stain, morphology of cellular material not recognized for identification.”)

[118] MSPCL Nov. ‘83 report, item 14.

[119] Lab Report, Ben LaGuer Prison Medical Record, 11 August 1986;  Also, see Report, Blood Services, University of MA Medical Center, 25 September 1987

[120] Memorandum in Opposition to Defendant’s Mass. R. Crim. P. 30(b) Motion for New Trial, 27 April 1989

[121] Id.

[122] Id

[123] Decision Denying a New Trial by Judge Robert V. Mulkern, 2 June 1989 pp4-5

[124]410 Mass. 89 (1991)

[125] 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.”).

[126] Testimony of State Police Analyst Karolyn M. LeClair, 22 May 1989 pp93.  (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.”) 

[127] Report number 1, FSA, August 2001, pp 10

[128] State Police, Crime Lab, Serological Blood Supplemental Report by Gwen Pino, 17 Feb. 1988

[129] Boston Globe, DNA testing faults evidence by David Arnold 15 February 2003 (“For many years [DA John J. Conte] has insisted that the blood on the tissues belonged to LaGuer.  Parole boards and appellate judges have kept LaGuer in prison partly because of that assertion.  In 1991 the state’s Supreme Judicial Court denied LaGuer’s appeal for a new trial partly because ‘The defendant’s...blood type was the same as found on the tissues at the rape scene…”)

[130] Nelson Mandela, The Autobiography, Long Walk To Freedom (Little, Brown 1994) (“I found solitary confinement the most forbidding aspect of prison life. There is no end and no beginning; there is only one’s own mind, which can begin to play tricks.”  p. 334) (ISBN 0-316-54818); Also see. The New Yorker, Hellhole, The United States holds tens of thousands of inmates in long term solitary confinement. Is this torture? By Atul Gwanda 30 March 2009

[131] See Commonwealth v. LaGuer, 448 Mass 585 (2007); Commonwealth v LaGuer, 65 Mass.App.Ct. 612 (2006); Memorandum of Decision and Order on Defendant’s Motion for New Trial, 22 September 2004, n24

[132] LaGuer’s fear of submitting a saliva sample has a context of police discounting, distorting, and destroying evidence.  In 2007, Hautenen argued to the SJC that LaGuer had thwarted their ability to inculpate him with a B Type bloodstain found near complainant. But Hautenen knew that bloodstain is genetically compatible to complainant.  Her offering this discredited pretrial MSPCL report only lends credence to Laguer fears of false evidence.

[133] See Commonwealth’s Memorandum in Opposition to Defendant’s Mass. R. Crim. P. 30(b) Motion for New Trial, 27 April 1989, indicating that 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 debriefing Carignan could prosecutors have known about these dog tags.  (Tr. 378)

[134] Commonwealth’s Motion for a Saliva Sample, filed, allowed, Deft’s objection noted 21 October 1983(Donohue, J.);

[135] If ADA Lemire had argued that the B Type blood on the napkins reviled the culprit’s identity, not the O Type perspiration on his recovered tube sock, an independent analysis (already requested in a letter to Lemire 24 October 1983) would have exposed an error in the MSPCL analysis.  The bloodstain actually matched complainant’s own blood which was O Type. 

[136] Commonwealth Opposition to Descendent’s Eighth Motion for  a New Trial  19 May 2004, p.11.

[137] Telegram, “Conte Says DNA Match Proves Guilt” by Matt Bruun, March 27th, 2002.

[138] Telegram and Gazette DNA profile completed in LaGuer rape case by Matthew Bruun 7 February 2002 (“He’s reported these results, so its absolutely clear that the work was done blindly,” defense attorney David M. Siegel said explaining why FSA was presenting the analysis of the 1983 evidence before testing the reference sample from LaGuer.)