I've been gone a few days, but I was really pleased to read the Reply Brief attorney James C. Rehnquist and his team at Goodwin Procter LLP filed with the SJC earlier this week in their bid to overturn Benjamin LaGuer's 1984 rape conviction. They make no bones about calling the Commonwealth (in this case represented by outgoing Worcester DA John J. Conte) out on its shameless use of distractions, distortions, and what the brief calls "misstating the factual record" (I think the technical term is 'lies'), in defending what the brief calls "its indefensible conviction of Mr. LaGuer."
As Live, Love & Learn readers know, LaGuer has been fighting a wrongful rape conviction for 23 years. In November 2001 a young lawyer unearthed a report showing that four fingerprints lifted from the base of the trimline telephone, the cord of which the perpetrator used to bind the victim's wrists, did not match LaGuer's. That information was never shared with the defense, a clear violation of LaGuer's constitutional right to a fair trial. The State Police has subsequently lost or destroyed the actual prints retrieved from that phone. Rehnquist filed his opening high court brief with the SJC on September 11. The Commonwealth filed its Opposition Brief on November 15. Of its 50 pages only a few deal with legal arguments as to why this withholding of exculpatory evidence should not merit a new trial. The rest is a recitation of the horrific nature of the crime (which is not at issue) and a selective and dishonest account of the trial and subsequent events through which the Commonwealth tries to make the claim that the case against LaGuer was so overwhelming (it was not) that four fingerprints on an item used in the commission of the crime would have had no effect on the jury.
Read Rehnquist's entire Reply Brief HERE. Or just peruse the following excerpts including several below the flip:
On the commonwealth's tactics Rehnquist tells the justices:
"Astonishingly, despite repeated admonitions during earlier stages of this appeal, the Commonwealth persists in misstating the factual record and making irrelevant post-trial allegations. At this stage, such conduct leaves one only to conclude that the Commonwealth aims to distract the Court from the issues in this appeal... a comprehensive list of the Commonwealth's misstatements and the irrelevant post-trial allegations would consume far more space than a Reply permits.... In short, the Commonwealth's persistent misstatements of fact and irrelevant post-trial allegations are nothing more than attempts to provide misinformation and to distract the Court from the issues in this appeal. Such attempts should not be rewarded."
On the 2002 DNA test which supposedly linked linked LaGuer to the crime Rehnquist has this to say:
"Beyond its reliance of numerous misstatements and mischaracterizations, the Commonwealth tries to justify its suppression of exculpatory evidence by repeatedly making post-trial allegations concerning DNA testing... no court has yet considered the relevance and admissibility of such evidence (indeed, no court has ever seen any purported DNA report), and issues such as reliability and chain of custody must be addressed, before such evidence may be considered, Indeed, the very fact that the Commonwealth has never sought to admit any DNA-related laboratory or analytical reports before any court cautions against this Court's consideration of any such alleged evidence now."
On the overall content of the Commonwealth brief Rehnquist says,
"The issue raised in Mr. LaGuer's opening brief is very clear - the Appeals Court erred in affirming the trial court's denial of Mr. LaGuer's motion for a new trial because the Commonwealth violated Mr. LaGuer's constitutional rights by first suppressing, and then losing or destroying, exculpatory fingerprint evidence. Rather than address this argument head-on, however, the Commonwealth spends most of its brief misstating the record, emphasizing the horrific nature of the crime, and relying on post-trial allegations in an effort to persuade the Court to ignore the Commonwealth's clear violation of Mr. LaGuer's constitutional rights. The Commonwealth's flagrant attempt to inflame the passions and prejudices of the Court should not be tolerated."
On the legal arguments advanced in the Commonwealth brief:
"Incredibly, the Commonwealth leads its opposition by arguing that, despite the Commonwealth's suppression of the exculpatory fingerprint report for over eighteen years, Mr. LaGuer's trial counsel somehow knew that this crucial report existed but made a tactical decision to proceed to trial without it. This argument not only is factually flawed, but also ignores well-established legal precedent requiring the Commonwealth to turn over all exculpatory evidence to the defendant... Any suggestion that Mr. LaGuier's trial counsel knew about the report but made a "tactical decision" to proceed to trial without it is simply belied by the record."
On the Commonwealth's attempt to shift the blame to LaGuer for not trying hard enough to access the fingerprint evidence Rehnquist points out:
"[T]he Commonwealth asserts that Mr. LaGuer's counsel should have done more to seek out this crucial evidence. Setting aside the fact that, as explained above, Mr. LaGuer's trial counsel did not know this evidence existed, the Commonwealth's argument is patently absurd, given that Mr. LaGuer's trial counsel made multiple written and oral requests, to no avail, specifically for this type of evidence. Further, the Commonwealth's argument completely ignores well-settled precedent affirmatively requiring the prosecution to turn over to a criminal defendant all potentially exculpatory evidence in its possession, even if not requested. In making these arguments, the Commonwealth tries to shift to the defendant the burden of seeking out exculpatory evidence. That view, however, is plainly at odds with the Commonwealth's constitutional obligations. The Commonwealth's suggestion that the law obligates defense counsel to do more than make multiple specific requests for exculpatory evidence is untenable."
As for the Commonwealth's assertion that, hey no one ever told the prosecutor about the fingerprint report, Rehnquist retorts:
"[T]he Commonwealth tries to absolve itself by claiming that the fingerprint report was never in the trial prosecutor's possession. Even if true, though, this claim is irrelevant because the report itself reflects that both the State Police crime lab and Det. Carignan knew of the four non-matching prints and the report."
On what he calls the "perverse logic" behind the Commonwealth's attempts to undermine LaGuer's constitutional rights Rehnquist writes:
"The danger of the Commonwealth's position to defendants' constitutional right to a fair trial is particularly evident in this case. For eighteen years, the Commonwealth suppressed from Mr. LaGuer evidence implicating another individual. In the course of suppressing that evidence, the Commonwealth lost or destroyed the back page of the report and the actual fingerprints themselves, denying Mr. LaGuer any opportunity to examine that evidence for its exculpatory value. Then, upon finally revealing that the evidence exists, the Commonwealth attempts to use the prejudice it created against Mr. LaGuer by arguing that Mr. LaGuer can only speculate as to the benefit the evidence might have provided to his defense. This perverse logic is essentially a blueprint for the Commonwealth's violation of the defendants' constitutional rights with impunity - turning the disclosure duties of Brady and Tucceri into, as the Court feared, an "empty promise.""
Less than a month now remains until oral arguments, which are set for January 4, 2007 (yes, the same day Deval Patrick is inaugurated). The issue now is whether LaGuer got a fair trial. By hiding potentially exculpatory evidence from the defense the Commonwealth, it seems clear, failed to live up to its constitutional obligations. The next question is whether or not LaGuer actually committed the crime. If the SJC overturns the verdict, that will be something for a new jury to decide. The Commonwealth's misleading brief notwithstanding, the evidence I've studied clearly indicates that he did not.