Thursday, November 30, 2006

Worcester County DA John J. Conte Uses Lies And Illogic In His Brief Against Ben LaGuer.

As the Benjamin LaGuer case heads for oral arguments in the Supreme Judicial Court it is vitally important for civically engaged netizens to keep a close eye on the process. Trials and other court proceedings are public for a reason, because in a democracy sunshine is always the best disinfectant. Two weeks ago the commonwealth filed its brief opposing LaGuer's bid for a new trial. It is a public document and I've posted it in full to (look on the "Filings and Rulings" page). I also published this commentary on it in this week's Valley Advocate. LaGuer's lawyers, headed by James C. Rehnquist, are due to file a rebuttal next Monday (Dec. 4). The Committee for Public Counsel Services is expected to file an amicus.

Never doubt the ability of lawyers to massage just about any set of facts into the service of the case they are trying to make. That is the nature of the job and the good ones do it with finesse. Outgoing Worcester County District Attorney John J. Conte recently filed his brief opposing Benjamin LaGuer's bid for a new trial. The document, available in full at, crosses the line from artful to deceitful.

LaGuer's conviction for a 1983 rape, which became a driving issue in the governor's race when Deval Patrick's past advocacy for the inmate became the subject of attack ads, will be revisited during oral arguments in the Massachusetts Supreme Judicial Court on January 4.

Conte's dogged unwillingness to look at new evidence that has emerged over the 23 years LaGuer has been claiming his innocence is nothing short of shameful. Five years ago a young attorney unearthed a report showing that four fingerprints found on the base of a trimline phone, the cord of which was used to bind the victim's wrists, did not match LaGuer's. That report, which is the basis for LaGuer's quest for a new trial, was hidden from the defense and by extension the jury.

In opposing a new trial, Conte devotes just a few of the 50 pages in his brief to legal arguments as to why this suppressed evidence shouldn't warrant a new trial. The rest is a hodgepodge of disingenuous claims, based on a fundamentally inaccurate reading of the trial transcripts, that the case against LaGuer was so overwhelming that knowledge of a few fingerprints found on an object used in the commission of the crime would not have influenced the jury. From there Conte reasons backward to claim that the fact that those prints have since been lost or destroyed is of no consequence.

Conte draws attention to a 2002 DNA test showing a trace amount of LaGuer's genetic material in the biological evidence. He neglects to acknowledge that four highly reputable DNA experts have since examined the document trail associated with the evidence in conjunction with the DNA reports, and concluded that the potential for contamination was extremely high.

But worse than his dishonest and selective use of the record and the DNA testing, Conte introduces a flat-out lie into the proceedings, a lie not related to fingerprints but to blood type.

In October, 1983, three months after having been sent to jail based on a flimsy investigation, LaGuer made an egregious error which he later admitted to. He subverted a court-ordered test of his saliva by mixing spit from his cellmate in with the sample he gave the police. As a result, the State Police chemist was unable to determine LaGuer's blood type from that sample. Oddly, according to the forensic report, the chemist was also unable to determine a type on all but one of seven items in the evidence that had blood on them. There was one piece of tissue paper the chemist reported as having Type B blood on it.

LaGuer has Type B blood. From then on, every time he mustered a challenge to his conviction, prosecutors argued that his blood type linked him to that tissue and the crime. In August, 2001 that same blood was submitted for DNA testing on the theory that if it, or any of the other blood from the crime scene, matched LaGuer's genetic profile, there could be little doubt about his guilt. Astonishingly, the blood not only did not match LaGuer's DNA, but it did match the victim's DNA, though the victim is known to have had Type O blood.

This means that the forensic report was wrong on a fundamental fact, a very serious issue in and of itself. It was such a dramatic revelation that on February 15, 2002 the Boston Globe's David Arnold reported:

"For many years 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 Supreme Judicial Supreme Court denied LaGuer's appeal for a new trial partly because 'the defendant's... blood type was the same as that found on tissues at the rape scene,' Justices Paul Liacos, Herbert Wilkins, Joseph Nolan, Francis O'Connor and John Greaney concluded."

Fast forward to the brief Conte submitted to the Supreme Judicial Court this month. In it he repeats the false claim that the blood type connected LaGuer to the crime, even after he knows that to be false.

Conte's brief is riddled with marginally relevant and outright bogus indicators of the supposedly overwhelming case against LaGuer. It also makes much of LaGuer's admitted contamination of the 1983 saliva sample, terming it a "fraud on the court" that precludes him from getting any consideration based on the suppressed fingerprint report. In fact, by brazenly perpetuating the debunked connection between LaGuer and the falsely reported type B blood found at the crime scene, it is Conte who is trying to hoodwink the justices.


John Hosty said...

Some of the things DA Conte has done are outrageous, but where does the public direct it's dissatisfaction? Surely if he can dismiss the requests for information from state senators and representatives alike he is above the law. Who does he report to? Who is responsible for making sure DA's are not putting on the Emperors robes?

Fair Trial for Ben LaGuer said...

I am not an expert on this, but my sense is that as an elected official the district attorney has a lot of autonomy. Having been in office for 30 years Conte also had (I use the past tense because he his now a lame duck) a considerable power base. That said, no one is above the law in our system. The chief law enforcement officer in the commonwealth is the Attorney General. I don't believe he (soon, she) has any chain of command type power over DAs, but she can surely investigate allegations of wrong-doing. The other place to go would be the US Attorney's office or to a federal judge. That is a cumbersome process that would require a lawyer willing to take it on. The good news is that come January Worcester will have a new DA and the commonwealth will have a new AG and, of course, a new governor. There is a lot of reason to hope that justice will finally be served in this case, but a vigilant and active grass roots will be important to find the pressure points (as your question indicates you are interested in doing) and then to keep the pressure on.

John Hosty said...

Frankly I am disgusted by what the facts of this case seem to suggest. I am not only interested in Mr. LaGuer's freedom, I want answers. I think we should start a letter writing campaign that asks the new AG and DA to look into this matter and seek the answers the public want. They may be able to dodge Mr. LaGuer's requests for information by suggesting he is undeserving because of his conviction, but they have no such claim against other citizens who still have a right to know what the hell is going on.

We deserve a full explanation of what happened to this fingerprint evidence, who was last responsible for it, and they should pay for their negligence. Somebody screwed up and threw away evidence. I want to know who and why, and I don't plan on gonig away until someone gives me an answer.