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 www.BenLaGuer.com, 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.