DNA testing did not clear Ben LaGuer of an interracial rape, as it should have, because the evidence was tampered with and mishandled — first by police then forensic analyst. The judge who oversaw the DNA protocol was even an ex-lawyer to the victim’s family.
According to Forensic Science Associates (FSA), “These findings fail to support Benjamin LaGuer’s claim of factual innocence in the rape and murder of Lennice Plante.” (She was not murdered.) Such error reflects their unfamiliarity with the case history.
According to Telegram & Gazette columnist, Dianne Williamson, the district attorney’s “penchant for paranoia and secrecy is just plain weird, and sometimes irresponsible. His office is triple-locked and stacked with television monitors.” (1/26/06)
This secrecy contributed to defense attorneys not recognizing that LaGuer’s own personal articles were mistagged as crime scene evidence. As the DNA derived from articles directly collected from LaGuer and his bedroom during the police investigation, not the crime scene, the widely held public view that the DNA test “further incriminated him” is inaccurate. DNA collected from LaGuer’s own articles was matched to his own DNA reference sample, not crime scene evidence.
Dr.Daniel L Hartl of Harvard says, if “articles taken from LaGuer and/or from his bedroom were mislabeled and mixed together with actual samples taken directly from the victim, then the DNA evidence is of no value, even if the sample were mixed by mistake.”
According to the trial testimony of Detective Ronald N. Carignan, after Ben LaGuer opened his door for police he “put on a jersey, went into the living room area of the apartment and we kind of followed him in. I believe he went in the bedroom and got the jersey and came out.” A State Police trooper collected the only “yellow cotton Jersey” in May 1989 from the local police. The 1983 lab notes indicate that “3 hairs” were collected from this article and “mounted” on lab slides. But, in May 2000, the evidence tag claim the Jersey as found (mistakenly) “at the feet of the victim, 8:18 AM, 7-13-83, Monahan/Carrignan.”
In a June 2000 affidavit, DNA expert Peter Neufeld says he was “told there is only single hair that has semen on it. The swabs and remaining slides have tested negative for the presence of sperm.” In August 2000 Edward T. Blake confirmed in a report what had already been told to Neufeld: “Since no spermatozoa and no male DNA were recovered from Plante vaginal/rectal swabs, this evidence is not relevant to the genetic identification of the Plante assailant.” In September 2000, the slides and hairs prepared from the Jersey were sent to Cellmark. Jackie J. Higgins found “cellular material ” on the hairs. In a November 2000 affidavit Gwen B. Pino, State Police QA/ QC Supervisor, recommended that the hairs from the jersey shirt be tested together with the victim’s vaginal and rectal swabs.
In February 2001, Judge Hillman ordered DNA testing of the hair slide samples identified in May 2000, August 2000 and by Cellmark in September 2000 from the jersey shirt be tested together with the victim’s swabs.
How could a sports jersey shirt which Ben LaGuer was witnessed dressing himself with on 15 July, by no less than three police officers, be processed by the State Police in 1983 and cellular material from its hairs and slides provided for DNA testing in 2001, but as evidence found at the victim’s feet two days earlier?
In response to a legislative inquiry, Ms Pino said “the crime laboratory did not have a manual governing the handling of evidence in 1983.” Mr Grant says, in 1983 “I might run two or three cases at once in order to save time.” By interrmixing the swabs with the “interior crotch” of LaGuer’s own underwear, plus the hairs from his own jersey shirt, experts say, the DNA (0.03 billionth of a gram) is consistent with a contamination event. In fact, an analyst from FSA mixed his own DNA with the victim's DNA by "speaking near or over" her samples during testing.
In April 2001, new reports affirm that contrary to his police report, search warrant and testimony that no articles were ever seized during a search of LaGuer’s bedroom, Detective Carignan did bring "Underclothes from Suspect" and “Underpants-suspect” to the lab a day after LaGuer was indicted. When eight tube socks first seen in LaGuer’s bedroom appeared at the State Police, this discovery was further proof that the trial judge was misled about Carignan not seizing any of these articles.
According to the 14 July 1983 search warrant application for the home of then suspect Ben LaGuer, Carignan claims “her assailant came into the apt only wearing white tube type socks and other than that was tottally (sic) nude. This investigator found 1 sock that was white and had black and yellow stripes at the top…The victim, Lennice Plante, stated that she ‘has observed the assailant go into the adjacent (LaGuer) apt several times.”
When describing in the application what articles he sought authority to seize, Carignan specifically noted the matching tube sock as the only article the culprit left behind, plus any other “property of Lennice Plante.” A search was executed on the afternoon of 14 July 1983.
In August, Carignan submits to the State Police Crime Lab “underclothes from suspect” that include underpants, eight (8) tube socks, and a bath towel. These articles are the exact same Carignan had observed in LaGuer’s bedroom. Carignan denied removing any article during that search. But the mere presence of LaGuer’s own underpants and multiple tube socks at the State Police undermines Carignan’s truthfulness, as it is his own police report which notes these articles as first seen in LaGuer’s apartment and his own signature that appears on the State Police form as the submitting officer. (Carignan denied seizing these articles because he had no legal authority.)
Prosecutors never disclosed the State Police form of articles Carignan had submitted for analysis. This absence of evidence left the defense in the dark, unable to respond, when ADA James R. Lemire misled the trial judge about Carignan’s claims, in police reports and in his trial testimony, that no personal articles had been seized from LaGuer. This vital information is a factor in LaGuer’s own DNA laced articles being sent away for DNA testing but, because of false reports and perjurous testimony, as crime scene evidence.
The warrantless seizure of LaGuer’s underwear prompted not only denials. On May 17, 1989 Trooper William Kokocinski collected from the Leominster PD three (3) pairs of underwear. However, when presented them in court, five days later, Lemire only put out two (2) pairs of panties.
David M Siegel of the New England School of Law had no experience in forensic issues involving DNA science. He had served a sting with the Public Defender in Tennessee. He came to the case through his wife, who was among those present when the Boston University’s office of general counsel was enlisted to setup a legal team for Ben LaGuer. Then BU president John Silber along with general counsel Todd Klipp and Law School Dean Ron Cass undertook to free LaGuer through DNA testing. Siegel’s wife saw this as a good opportunity for her husband to move away from a fourth tier law school to a first tier BU faculty. (While representing LaGuer, Siegel was twice invited to lecture at BU about the case history.)
The national law firm McDermott, Will & Emery was also enlisted to provide all of the legal resources and expertise. The firm’s managing partner in Boston, Robert Cordy, even became personally involved in trying to get the district attorney in Worcester to agree to DNA testing. A group of lawyers from the white-shoe international law firm of Weil Gotshal drafted a brief for Siegel to obtain DNA testing. The mega law firm of Holland Knight had also agreed to meet with Siegel to join him in representing LaGuer. The case reeked.
In May 1989, Judge Robert V. Mulkern denied a request for DNA testing. In November 1996, Judge Herbert F. Travers denied a lawyer even access to the samples for DNA testing. In September 1999, lawyers found the evidence with their tamper-proof seals broken and in disarray. (These seals were affixed, by court order, across the boxes in May 1989.) In December 1999, Robert Cordy wrote the district attorney to set up DNA testing. In response, DA Conte assailed Cordy in a press release :
“At best, the unsanctioned handling of the evidence by Mr. LaGuer’s attorneys has disrupted the chain of custody of the evidence in the case. At worst, evidence may well have been contaminated beyond the point of obtaining valid test results.”
The legal battle for DNA testing had only begun. In April 2001, 14 months later, the defense learns that prior to them ADA Sandra Wysocki had eyed the rape kit and “also Benjie’s underwear” in July 1998. Conte’s next press release succeeds only in deepening the mystery of Wysocki’s probe :
“During the argument before the Appeals Court regarding the absence of women on the jury, Mr. LaGuer claimed that the Commonwealth had lost the physical evidence in his case. To investigate this claim, the prosecutor checked with the Leominster Police Department, who confirmed that all the evidence from the police department had been moved to the Clerk’s Office after the 1989 blood-type hearing.”
This is false. Wysocki’s letter to police is dated July 8, 1998. The hearing on the absence of women from the jury was held December 11, 1998, five months after Wysocki had already located “Benjie’s underwear” and the rape kit.
In a statement aiming to rebut a February 2002 Globe story, DA John Conte said, “Any and all evidence pertaining to this case that is held by the District Attorney’s office has been, and will continue to be preserved.” But, in January 2002, ADA Sandra Hautanan told the judge that, with respect to the trial files in her office, “my understanding from the trial prosecutor is that there were more things in there and they aren’t there anymore.”
Instead of attorney David M. Siegel examining how each sample of evidence was collected and previously tested by crime lab analysts over the 18 years, the “chain of custody” consisted of the initial crime analyst and emergency room physician being shown photographs and asked if these appear consistent with those in 1983.
At FSA, Dr. Ed Blake began work without any reason to doubt that the cellular material from the victim’s vaginal and rectal swabs could be combined, for optimal test results, with the cellular material Cellmark had identified on hairs from a yellow jersey shirt. In fact, both Cellmark and State Police DNA analysts agreed with this course of action. But in a courtroom full of lawyers, with forensic experts near telephones on standby, nobody recognized that Carignan had testified that LaGuer dressed himself with that jersey on the day he was taken in custody.
The DNA test was rigged. The victim’s swabs (long known sterile of male DNA) should have never been combined for testing as a single sample with LaGuer’s jersey shirt hairs (identified by Cellmark as having cellular material.) Once the samples were combined, the gene sequencer would spring LaGuer’s genotype markers if only from 0.03 nanograms on his hairs. By simple deduction, the only samples with known male DNA was LaGuer’s own jersey shirt hairs, his underclothes, and a DNA filthy towel collected from his bedroom during the police investigation.
At FSA, lab analyst Alan Keel was dumbfounded from the outset. Ed Blake told a reporter, “This is very difficult evidence, there’s no question about it.” There was no DNA in swabs that routinely sprung thousands when not millions in other sex cases. (Q-tip swabs, because of their absorptive quality, are fertile sources of biological evidence. DNA has been collected from swabs despite decades in storage facilities.) In 1983, vaginal and rectal swabs were taken from the victim along with pubic hair clippings at the hospital.
If FSA had known that the victim was alleging she been rectally raped, repeatedly for eight hours, they might have stood a chance of red flagging that her rectal swabs sprung not a single blood cell or sperm faction. The vaginal swabs, expected to yield copious sperm, sprung only evidence reaffirming a “rare yeast” infection that was plaguing her in July 1983. She required weeks of treatment.
A separate swab, one found in the container along with her original, untested pubic hairs, sprung also no blood or sperm faction. No male DNA.
“There is no indication of semen, sperm, or epithelial cells associated with a male donor on either the vaginal or rectal samples,” says Dr. Theodore Kessis. “These findings contradict the alleged facts of the case, namely that the victim was raped repeatedly over a period of many hours.”
The absence of DNA fractions from blood on the victim’s rectal swabs contradicts her claim of rape. This is true because the absence of blood on the rectal swabs, where blood DNA fractions should have been found in copious levels given her account, proves that she had no rectal lacerations consistent with the assault she alleged. This evidence is especially probative given that the swabs were collected so soon after the alleged assault.
“Another disturbing aspect to LaGuer’s conviction is the physical evidence contradicts Plante’s claim that she was sexually assaulted vaginally and anally, much less over an eight hour period of time,” says Hans Sherrer, President of the Seattle-based Justice Institute. “Consequently, the evidence supports that LaGuer was convicted of an aggravated rape that never happened.”
Dr. William C Siegel, 27, examined the victim in the emergency room for 3 hours. She was his first and last case involving an alleged rape. (He became a cardiologist.) Dr. Siegel noted in his report that the woman had a reddish labia, a fact that might have prematurely led police to focus the case as a sexual assault. Dr. Siegel ordered a battery of tests prior to leaving his shift. The results of her lab work showed that the victim was suffering from a “rare yeast” infection so advanced that, when changing her bed sheets later, her nurse noted she was discharging a “yellowish” pus. So the “reddish labia” was, in fact, a severe perineal infection.
But keeping FSA in the dark, not sharing what Dr. Blake said afterwards should have been disclosed, was a colossal error. FSA had no historical context to put their raw Profiler Plus data. After the analysis, Dr. Ed Blake said, all these reports should have been disclosed to FSA before they began testing.
If the State Police analyst in 1983 was splashing water and rinsing biofilth off swatches of LaGuer’s underwear, as he testified he did in a 1989 hearing, Siegel should have reported this to FSA.
“Had LaGuer’s lawyer in 2002 brought these facts to Dr. Blake and Mr. Keel’s attention as he should have at the conclusion of the blind test, it is hard to imagine that Dr. Blake could have made the highly charged and, in my opinion, uncalled for comments that he made,” says Dr. Lawrence Kobilinsky, Associate Provost at John Jay College of Criminal Justice. “This is especially true because the miniscule level of DNA the FSA report relies on for its conclusions is of an amount that could be consistent with contamination.” (Dr. William C. Thompson says, a jury must consider “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 samples.)" Dr. Tony Frudakis says if the rape kit was on the same State Police crime lab counter as LaGuer's underwear in 1983, then the DNA found is a likely false positive. Dr. Bruce Jackson says, “the DNA testing performed by Dr Blake was not conducted optimally and his data should be carefully reviewed and reevaluated.” Dr. Edward J. Imwinkelried says, “It will be a mistake to make this case sound as if it turns on technical DNA issues.”)
The user manual for the Profiler Plus, manufactured by Perkin Elmer, recommends for testing a specimen of one to 2.5 nanograms (one billionth of a gram.) While Cellmark tests samples as small as one-half nanogram, in this case FSA derived a genotype with less than 0.03 nanogram (83 times less than recommended and 16 times less than the smallest sample Cellmark has ever validated.) Dr. Donald D. Riley of University of Washington, says, “If you shine a flashlight at night in a darkened room, you will see these little dust particles. Most of those weigh a lot more than a billionth of gram.”
Mark T. Grant reported that sperm cells were present on the victim’s pubic hairs. This corroborated the police report of Timothy Monahan, who had quoted an anonymous physician as saying that the victim was “raped and it was not self-abuse” as there was “evidence of semen (sic) in the vagina and throat.” (Grant read all reports prior to testing in 1983.)
But the only physician on staff during the time in question, Dr William C Siegel, has denied being the source of Monahan’s report. In 1983 the CSI technique to probe samples for sperm was one for forensic crime labs, not emergency room physicians.
After a lawyer requested the pubic hairs for retesting, Grant never even appeared on the trial witness list.
In 2002, the DNA analysis cast a shadow over both Monahan’s and Grant’s reports. According to Ed Blake, the sample (0.03 nanograms) was so small that only DNA science could detect such a sample. So Grant confirmed the presence of sperm not on the basis of his own observation and analysis, but Monahan’s report. DNA was still two decades away. A State Police supervisor could not be certain that Grant had even done the analysis he reported. Cellmark was also unable to confirm that the cellular material on the cut pubic hair slide from which Grant had reported sperm was even spermatozoa. Grant also labeled 0-Type bloodstains from Ms. Plante as B-Type stains, possibly to falsely incriminate LaGuer.
One Friday in March 2002, Dr. Ed Blake said that a cop could not deliberately plant 0.03 nanograms of DNA in 1983, but ignored contamination factors that included LaGuer’s own “jersey” shirt and underwear being initially run together with the rape kit.
One day after the result, defense attorney David M. Siegel told the Boston Globe, “The result doesn’t afford a basis for filing a new trial.”
Instead of reviewing the analysis with Blake, Siegel left for the Mediterranean.
Public opinion quickly cemented against Ben LaGuer.
Upon Siegel’s return a letter from Blake awaited him, asking “why we pursued a time consuming and expensive investigation of these spermatozoa on Mr. LaGuer’s behalf if he had prior knowledge or belief that this evidence was untrustworthy.” However, ample evidence was disclosed to Siegel in April 2001. In fact, Conte first said these samples were possibly “contaminated beyond the point of valid test results” in a 2000 press release.
After his lawyer broke the news to him that Friday, Ben LaGuer called Boston civil rights attorney Max Stern. On Tuesday Stern, suspicious that not enough had yet been done to rule out evidence mishandling or tampering as a factor, asked Siegel for whatever he had on that question. On March 28, Siegel collected exactly four documents in “connection with pursuing information that might support the theory concerning police tampering” for Stern to review. LaGuer had kept Stern updated over the years with news clippings and other articles of interest. In the 1980’s Stern had reviewed the forensic case.
In August 1986 a new blood type report indicated that LaGuer was Type-B and that fact raised doubts because a pretrial State Police “perspiration” test on the culprit’s tube sock had resulted in Type-O.
After nearly three years, with increasing media and political damage, prosecutors filed court papers on 27 April 1989. Prosecutors asserted that the victim, a Type-O, had testified that “she may well have been gagged with the sock” and that a “tissue , bearing droplets of Type-B blood, also was found in the victim’s apartment.” In sum, they reasoned, the “depositor on the sock could well have been the victim, and the tissue, bearing defendant’s blood type, also does not exclude him from suspicion.”
When Lemire stood in court, Judge Mulkern retorted, “If the assailant had blood type O and Mr. LaGuer has blood type B, don’t you think that presents a problem to me?”
That exchange prompts prosecutors to contact the local police. They turned over a cartload to a state police trooper. Prosecutors then engaged the State Police crime lab, but only to retest the tube sock. No retesting was ordered on the tissues already cited in court as incriminating LaGuer.
Prosecutors spun a whole argument of what “could well have been” and “may well have been” out of bits and scraps. The victim never testified to a gagging sock. In a police report, she was quoted as saying that he “stuffed something in her mouth and she kept gagging on her own blood.” But photographic evidence along with the lab notes and testimony of Grant depict a pristine tube sock. Karolyn M. LeClair did tests 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.”
Judge Mulkern denied a new trial saying “had the sock and the defendant’s blood type been put into evidence at trial, the Commonwealth could have introduced the blood covered tissues matching the defendant’s blood type.” (In 1991, the Supreme Judicial Court took special note to this claim that LaGuer’s bloodtype was the same as blood found at the scene. 410 Mass. 89.) But a retest of these tissues in 1989 would have exposed a blood type not Type-B matching Ben LaGuer, but Type-O matching the victim. Prosecutors may have suspected this, which explains why they held back the tissues when the tube sock was sent away for retesting.
After the May 1989 court hearing, the tube sock that was found in the victim’s apartment disappeared from all subsequent lists and chain of custody papers.
In May 2004, ADA Joseph Reilly falsely argued in court papers that LaGuer’s DNA was “found on cotton swabs used to obtain evidence from the victim’s vaginal, rectal, and oral cavities.” Reilly’s reference to “oral” swabs is a fraud upon the court. No such “oral” swabs even exist. According to FSA, the vaginal and rectal swabs revealed no DNA. “Since no spermatozoa and no male DNA were recovered from Plante vaginal/rectal swabs, this evidence is not relevant to the genetic identification of the Plante assailant.” In 1983, even the state police crime lab found no spermatozoa on either the vaginal swabs or rectal slides.
Contrary to all forensic reports, Judge Hillman ruled that LaGuer’s DNA “matched the male profile found in ‘pooled sperm,’ including ‘sperm fractions’ taken from the victim’s vaginal, rectal, and oral cavities.” While Hillman cited page 14 of FSA Report 2 to support his conclusion, a year after that report DNA expert Barry Scheck told the AP “I’m tremendously optimistic. So far all the tests coming back seem to be coming back in his favor.”
In denying a new trial, Hillman said LaGuer “mixed another inmate’s saliva with his own in order to obstruct the Commonwealth’s ability, through blood type, to link him to the crime.” In recent arguments to the Supreme Judicial Court, prosecutors hammered on LaGuer’s own 1994 admission that he had hampered prosecutors from collecting a saliva sample two decades earlier. According to the May 1994 issue of Esquire magazine, where this saliva affair was first published, if LaGuer had only “given officials a legitimate saliva sample, the result would have provided evidence of his innocence rather than a false impression of his guilt.” This is true because the culprit’s tube sock was recovered at the scene, and a State Police analysis had found ABO O-Type from “factors in the perspiration deposited on the sock.” As a B-Type, LaGuer would have been instantly excluded, which might have then prompted all charges to be dismissed. (In 2002, a DNA analysis linked all of the blood evidence in this case to the victim. No crime scene DNA from blood or any biological evidence links LaGuer to this crime.)
Whether Lemire had put in evidence bloody napkins, fingerprints or the culprit’s tube sock in 1983, all confirmed LaGuer’s actual innocence. Why did LaGuer not give his saliva is a question that can easily be posed at a new trial.
On Friday 22 March 2002, Ben LaGuer told the Telegram that he was writing the judge a letter challenging the DNA result. (The envelope is postmarked 25 March.) Over the years Dr Ed Blake has suggested that since LaGuer’s letter predates him receiving the final 22 March report, this letter evince a “prescient knowledge” of the damning result. This is false. While LaGuer indeed had ample reasons to suspect the result might not break his way, Dr Blake is again ultimately wrong on his public spin. This is false because all of the laboratory work, that is, exactly when the samples seized from LaGuer were improperly intermixed with those taken directly from the victim, resulting in the DNA contamination event, is thoroughly documented in Dr Blake’s own February 2001 report. The final report was of no value, since that report is merely matching the genotype that sprung from LaGuer’s reference sample against the genotype earlier sprung from those contaminated articles.
The lab and human errors cited in LaGuer’s letter can all be traced not only to Dr. Blake’s earliest reports but even earlier crime lab reports and court papers beginning with the 1983 police reports. One did not need Dr. Blake’s final analytical report (found ultimately riddled with errors and misstatements) to conclude that, as one might say, that train left the station on the wrong track, so it would never hit the right stops.
For a man who was hell-bent on performing the DNA test under “blind test” conditions, that is, not knowing the background of the samples prior to testing, Dr Edward T. Blake of Forensic Science Associates recent comments to a Telegram&Gazette reporter that he was hired to perform a “practical, problem-solving exercise” about LaGuer’s guilt or innocence is untrue. (12/13/06)
In a Telegram article of July 2000, Dr Blake said that he envisioned testing the samples in a manner where one “divides[s] the evidence in half, if that’s possible. You do the work blindly, you publish the work blindly—before you do the reference sample—then you do the reference samples. And the guy’s either in or he’s out.” (7/16/00)
As defense attorneys’ sought to comply with Dr Blake’s request for a blind testing, they never informed him that the samples were found with their tamper proof seals peeled off and that the district attorney himself had claimed that the samples might be “contaminated beyond the point of valid test results.” (1/14/00)
The fact that Dr Blake described this case as one of “rape and murder” in his report only shows how far blind and in the dark he really was about the case history. (The victim died 15 years after the trial.)
Immediately after the DNA test result was made public, however, Dr Blake excoriated LaGuer for claiming that the result was an error. “The time to make those claims is not now. The time to make those claims was on Day One. If this is some concocted thing, why did we spend all this time and effort on concocted evidence? It’s only concocted because Mr. LaGuer didn’t like the result of the test.” Dr Blake told the Telegram. (3/31/02)
In an earlier interview with the Telegram, two weeks prior to the bombshell result, Dr Blake had announced the result of a genetic profile. “This is very difficult evidence, there’s no question about it.” Attorney Siegel told the Telegram, “He’s reported these results, so its absolutely clear that the work was done blind.” (2/7/02). A day earlier, Dr Blake told the Telegram, “All the scientists get to a point where we’re on the same page, and then we basically open up the box and see whether Mr. LaGuer is in or out.” (2/6/02)
In 2004, Dr Blake again dismissed LaGuer’s claims of improper sample intermixing and errors due to contamination. “Nobody took that position prior to the testing. In an intellectual discussion, you don’t accept those kinds of positions, ever, “Dr Blake told the Telegram. (2/15/04) But for LaGuer, this was no highfalutin discussion. The samples were found with their tamper proof seals peeled off. Samples taken from LaGuer and his apartment during the police investigation were mislabeled as crime scene. The district attorney was the first to claim the samples might be “contaminated beyond the point of valid test results.” Attorney Siegel withheld these facts because Dr Bake himself had insisted on not knowing. Siegel didn’t have the courage to then stand up when Blake stirred a media lynch mob.
When he completed his analysis in March 2002, and shared it with the defense, Dr Blake was still owed thousands of dollars. (In 2004, Dr Blake confessed to a Telegram reporter that he then assumed he would never collect on his fees.) This may explain why he told the Telegram that LaGuer was a “master manipulator and a flimflam artist.” (3/31/02) In a second statement that raised many eyebrows within the scientific and forensic community, Dr Blake then equated LaGuer with rapists who “can’t bring themselves to admit to their mothers that they are guilty of the crime. In this case, his mother was the Boston press. The media created this window of freedom for him.” (3/31/02) But Blake knew even less about LaGuer’s biography than he knew about the samples he was testing.
He has become so emotionally and intellectually invested in casting LaGuer as a bad character that, when he is presented with evidence challenging the DNA, Dr Blake’s response has been less than candid. He has dismissed prominent scientists and forensic experts. He claimed that his analysis would withstand peer review. But every expert who has reviewed his analysis and case file has found his reports riddled with errors. The blame for Dr Blake’s ignorance is not his alone to share. In 2002, near the very end of DNA testing, even Attorney Siegel appeared baffled in comments about the case to the Telegram. “I thought a lot of stuff in the case was straightforward.” (2/1/02) To the Boston Globe, even more revealing, Siegel said, this case felt “more and more like something out of “Alice in Wonderland” (2/15/02) But given how the judge was the victim’s ex-lawyer, and prosecutors were withholding vital reports, Siegel had ample warning.
Contrary to his recent claim that he was hired to perform a “practical, problem solving exercise” to determine LaGuer’s guilt or innocence, Dr Blake botched his DNA test because the samples were mislabeled and mischaracterized. Dr Blake could not have known about these problems then, of course, because defense attorneys themselves had not done the laboratory and analytical expert consulting necessary to uncover these errors.
In a highly controversial case Dr Ed Blake did for the Innocence Project, among Peter Neufeld and Barry Scheck’s first DNA cases, Kerry Kotler was exonerated of a brutal rape after 11 years in prison. Four years later, DNA implicated Kotler in a second rape described in Actual Innocence, a book Neufeld and Scheck co-wrote with New York Times reporter Jim Dwyer, as “so galling, so calculating, that it led people to instantly assume that…his release had been some kind of legal trick or sleight of hand.” (Dr Blake, a named consultant for the book, is never identified as the scientist in Kotler’s case.) But Dr Blake even testified at the second trial that police had framed Kotler. The jury disagreed. In Texas, death row inmate Ricky McGinn became a controversy for then presidential aspirant George W Bush as a case of possible wrongful execution. Bush granted lawyers an unprecedented 30 day stay for DNA testing. In that case Dr Blake’s report was used as a basis for executing McGinn despite evidence, cited by Blake, that Texas Rangers had McGinn ejaculated himself for a reference sample---a practice unheard of in all law enforcement. (Dr Blake did not preclude contamination as a factor.) In Virginia, Roger Coleman was a national death row figure who Time Magazine had put on its cover as a possible innocent man about to be wrongfully executed. (Eric S Landers, the director of Broad Institute and finalist to become Harvard University’s next president, had serious questions about Dr. Blake’s laboratory and analytical procedures.) But with Barry Scheck as his lawyer, Dr Blake began to fight Virginia over their request that he return all DNA samples in his lab. Blake said further tests might exonerate Coleman. (But Coleman was executed in 1991.) Why would Blake, given his history and those around him to spin (Neufeld begged a New Yorker staff writer not to include their roles in the Kotler case in a story,) be seeking proof that his own forensic report in 1991 led to Coleman’s wrongful execution?
Perhaps Neufeld got it just about right when he told the New York Times that “DNA is a ‘truth machine’, but the human factor can be a spoiler.”
In 2005, a superior court judgeship was left vacant when Judge Hillman accepted the office of Federal Magistrate. With the favorable vote from Peter L Ettenberg, LaGuer’s trial lawyer in 1984 and a member of the Judicial Nominating Committee, ADA Lemire’s name was presented to the governor along with two other candidates. Why would Ettenberg press Lemire for a judgeship, a man who twenty years earlier denied his client exculpatory fingerprint evidence? Did Ettenberg even sense an ethical duty to inform the governor that a court ruling was then pending involving Lemire’s role in the unethical withholding of evidence? In fact, Ettenberg had provided the defense in 2001 an affidavit attesting to these facts.
Attorneys Sam Silverman and David Siegel met while filming a documentary for La Plaza, a public affairs program of WGBH in Boston.
Silverman had been battling prosecutors in Springfield for years to get DNA testing for his court-appointed client, Angel Hernandez, who was convicted of raping a college student. What happened to Silverman left a mark on Siegel. On the day Hernandez was to walk out of prison, despite their minimal work and input, Innocence Project co-directors Barry Scheck and Peter Neufeld appeared in court and the media soon were crediting them instead of Silverman for gaining Hernandez's freedom (Hernandez signed with the Cochran, Scheck & Neufeld law firm, in New York, which later generated fees from a multimillion dollar settlement.)
Siegel always made it clear that the Innocence Project had no tactical or strategic role in Ben La Guer's defense. Scheck and Neufeld had left a sour taste after Siegel asked for a general affidavit in support of DNA testing. Neufeld had taken the liberty of inserting a paragraph that invited Scheck and himself as co-counsels in the case. While this was Siegel's first foray into DNA science and there was a lot he did not understand, he clearly understood the drawback of standing in the shadow of Neufeld and his partner. If Siegel was to leap to the world class BU faculty, Boston University officials would need to believe that Siegel, not Neufeld or Scheck, had orchestrated a masterful legal defense.
If Scheck and Neufeld had been told how the articles were improperly handled since first collected in 1983, they might have had the acuity to rise foul flags. But Siegel left them all in the dark about what even Dr. Ed Blake later admitted should have been told to them prior to testing.
No one suspected contamination or other errors in the testing. Everyone assumed that the DNA test result would be unassailable whether it exonerated LaGuer or inculpated him. Actually, the evidence was readily available. But, instead of blaming Siegel for not sharing this information with the team, after the result hit newsstands LaGuer was cast as much too late, invested and desperate in his own defense to be credible.
What happened over the next two years was nothing short of a gang rape of Ben LaGuer's integrity and biography.
At the crime scene, the victim told police that she did not know her assailant’s identity. At the hospital, she repeated that claim to nurses and physicians on separate occasions. In a bedside interview with police, she provided what they described as a “scant description of a black man very short and small in build.” The building manager told police later that no one fit that general profile, but he cast suspicion on the young Latino newcomer who was staying next door to the victim’s apartment without proper residency papers. Ben LaGuer must have jolted their interest. The police had a two-sentence report on him dating back to November 1980, three years earlier, indicating that he had been a “possible suspect” in a residential robbery. A second report suggested that LaGuer might be violent too. With only a scant description to solve a major city crime, and with little more expected from the mentally ill victim in the hospital, LaGuer became their only target despite how the victim had described her assailant. Ben LaGuer was at least six inches taller than the victim, muscular in shape as a recently discharged army veteran and not “very dark skinned” as she described, but a light-olive skin complexion. He also spoke with a slight but noticeable ethnic accent. LaGuer was afflicted with a severe stutter that is documented since childhood. The victim was adamant in her testimony later that her assailant had no accent and spoke to her without her ever noticing a stutter. He even had an alibi. She saw no tattoo or scars to match those on LaGuer’s body.
Absent probable cause evidence to present a magistrate, Carignan fabricated a pretext to justify a search warrant. (The secret internal file on LaGuer was too remote and insufficient for a search warrant application.) So Carignan claimed in a affidavit that the victim told him that she seen the man coming and going from the LaGuer apartment. The magistrate granted a warrant and three officers executed the search.
They were eyeing to find the matching pair to a tube sock that was found in the victim’s apartment, any articles LaGuer might have stolen, and any underclothes was likely a high priority in their minds. They might have even found a trail of blood running along the rug of her apartment stretching, across the hallway, the length of his apartment. But the police never did find the incriminating evidence.
Carignan never disclosed to the defense those secret internal reports on LaGuer from the 1980s, thus masquerading how LaGuer actually became a person of interest.
One veteran courthouse reporter says the woman had “an extremely difficult time on the witness stand. I covered the trial. It was only through delicate handling by Assistant District Attorney James R Lemire that the woman was able to come to court and be heard.” She was not only carefully handled, but likely coached. Carignan testified that ADA Lemire spoke to her about her testimony, and Carignan agreed that she “knew that she was going to come in and point to the guy she said did this?” But LaGuer was not the man she described to police. While she fingered LaGuer in her testimony as the culprit, one might wonder why he was even present in the courtroom. She insisted that she never told police any story for him to be legitimately in that courtroom. The prosecutor simply dragged LaGuer in front of this woman’s accusing finger.
According to Carignan, the victim said nothing about the man’s eyes, nose, mouth or scars. (Tr 372) LaGuer had a black Panther tattoo on his left hand, and a slit right eyebrow. She told police that he had put a “white” plastic bag over her head. But the only plastic bag found was dark green, Carignan said. (Tr 373) When she was on the stand describing the men on the photographic array, she (mistakenly) claimed that eight of the nine men were Caucasian. (Tr 178). Carignan’s own police report of 15 July 1983 says that he selected eight pictures of “dark skinned young males,” with LaGuer’s picture constituting the nineth. Carignan testified that, after being instructed to “pick out anybody she knew,” she chose the picture of Ben LaGuer (Tr. 351)
If the apartment was not well enough lit for her to set apart a “dark green” from a white plastic bag that was within inches of her face, and she had difficulty describing “dark skinned males” from Caucasian ones in the full daylight of a courtroom, how can anyone be satisfied that her cross racial ID of Ben LaGuer is accurate?
At trial, the victim insisted that she could not have described her assailant to police as “very dark skinned” because she selected LaGuer’s picture, and he’s not a “very dark” man. (Tr 191) The inherent danger with her testimony and identification is that she came to rely more on LaGuer’s photograph, which was shown to her twice before taking the stand, than on her own independent recollection. Carignan’s police report of 13 July, a notation within hours, says, “I asked her if he was a black man and to this she said, ‘yes he was’ he was very dark skinned.”
Carignan claim that the victim’s daughter, Elizabeth Barry, was present when he obtained the statement that gave justification to his search warrant and, more significantly, when her mother selected LaGuer’s picture from a photo array.
But Carignan’s claim that the victim lead him directly to LaGuer is wholly incredible, and not only because she repeatedly refuted his account. Carignan triggered none of the normal procedures consistent with him identifying LaGuer at the time and date in question. He did not notify a single department chief; never ordered LaGuer’s apartment to be put under surveillance; never instructed roll call commanders to notify their patrolmen to be watchful for LaGuer; never put out a all points bulletin for what he claimed was a known dangerous suspect; moreover, during a search later of LaGuer’s apartment, Carignan never seized LaGuer’s portrait, which he observed “on top of the dresser in the same bedroom.” If the victim had truly identified LaGuer, as Carignan claimed, seizing the only photo of LaGuer would have been a top priority.
In 23 years of active litigation, Barry has never spoken to these unforgettable accounts despite multiple appearances before the parole board and interviews with print and broadcast media since the 1984 trial.
Lennice May Plante was a schizophrenic woman with a history of domestic abuse. (According to Barry, her father beat her mother and locked her in closets whenever he left the house to party with other women. He put her in a psychiatric ward beginning in the 1950s with a diagnosis of schizophrenia.) At the hospital, Barry told police that her mother had “a nervous breakdown” fourteen years earlier and “had not been right since.” Barry’s virtual silence is incompatible with her having witnessed her mother selecting LaGuer as assailant both by name and from a photo array. Barry’s silence suggests what is most obvious.
In December 1983 Lemire admitted that “present at the time of the photo array being viewed were Carignan, Lennice Plante, and Elizabeth Barry.” On January 17, 1984 Lemire had a list of prospective witnesses that included Ms Barry. But, when the trial judge read the list to the jury, six days later, Ms Barry was the only witness scratched off. Carignan testified, “Officer Monahan stayed outside in the corridor. I went into the room with Mrs. Barry whom I met at the hospital.” Carignan added quite tellingly, that he did not “recall if there was any other person in the room.” (Tr. 350, 351)
Barry is never called as a witness because of grave doubts about her testimony. According to a defense report, a nurse told private investigators in 1983 that Carignan had only shown the victim a single photograph of LaGuer, not eight as he claimed.
In August 1983 Carignan told a grand jury that LaGuer’s apartment had been the scene of this crime, even though everyone knew that the victim was assaulted in her own home. He testified that she was found lying on a puddle of blood, yet his report says one that “smelled of urine.” With his report in hand, Carignan then read a statement from the victim as her saying quote “all of a sudden the door opened and in came Benjamin LaGuer.” But, contrary to his testimony, his report actually reads her to say “all of a sudden this black guy comes into the apartment.” Finally, Carignan testified that she could not be present to testify as she was still in the hospital recovering from a heart attack and awaiting facial reconstructive surgery. None of this testimony was true. In fact, she was discharged from the hospital three days earlier.
In response to a motion to dismiss indictments, the trial prosecutor claimed in court papers that “even absent this information there was certainly sufficient competent evidence presented to justify the indictment.”
After listening to Carignan testify for sixty-five pages of transcript, the trial judge denied LaGuer a new trial. “Detective Ronald Carignan acknowledged the inconsistencies discussed above, but denied any purposeful attempt to mislead the grand jury.”
Peter L. Ettenberg received the police reports in August 1983, after his client was arraigned in superior court. In a July 15 police report Carigan refers to “a print off the telephone." In November, Ettenberg inquired about any prints with the prosecutor. In December, the prosecutor responded that the print depicted in Carigan’s report could not be matched, that the defense would get any reports as they became available. Ettenberg wrote a note to himself, "the test for the fingerprint came back negative as a match." In his 1984 trial testimony, Carignan described the single print as an insignificant "small partial" in quality.
At a hearing in September 1985, granted on the basis of allegations that Carignan had tainted the integrity of the grand jury with false testimony, Carignan testified for the first time that his police reports were the product of contemporaneous notes which he had destroyed. This revelation is pertinent because Carignan was told that four (4) prints off the telephone did not match with those of LaGuer on July 16, 1983. Since Cardigan’s July 15 report also refers to a search of the crime scene later in the morning of July 16, after he was told by the State Police about the four prints, his assertions of "a print off the telephone" which he later expandly depicted as "a small partial" were each patently false.
After the prosecutor asserted that the single print in Carignan's July 15 report could not be matched prior to trial, any disclosure of greater number of prints and exculpatory ones in quality not only contradicted that police report, but other reports. In his July 14 report, Carignan says that the victim told him that she had seen her assailant coming and going from the LaGuer apartment and saw him using his own keys, a statement she repeatedly denied making in her trial testimony. Carignan had first successfully used this statement to secure a search warrant for LaGuer's residence, from where numerous articles were illegally seized.
If the defense could have shown that Carignan was untruthful about the fingerprint analysis, the jury might have also afforded the victim's strong claim of not implicating LaGuer greater consideration.
The state police crime lab lifted four fingerprints off the base of the telephone from which the culprit had pulled its cables to tie the victim’s hands. These vital prints possibly matched Jose Orlando Gomez--a neighbor with a history of sexual deviance. But, by the time the State Police notified Carignan that these prints excluded LaGuer on July 16, LaGuer was charged with the crime. The Sentinel & Enterprise headline story, above the fold, read “Police Nab Man in Brutal Rape” Carignan was also running late on his departure for vacation. So instead of investigating Gomez as a possible suspect, given the fingerprint analysis, Carignan first ditched and then lied about this evidence in his trial testimony. Carignan never registered the actual fingerprints, in time affecting their loss, and any future effort to match those prints against Gomez or his two brothers, both of who have sexual deviance in their backgrounds. One tenant put three males outside of the victim’s building at the same time others began to hear what could well have been the first sounds of the assault.
At the scene, the victim told police that her intruder had a knife which was visibly on the nightstand. (This knife was vital, as Carignan had noted that the door to the victims apartment was jimmied). But the police later charged LaGuer with “unarmed robbery” and the physical knife was never brought to court , nor was any fingerprinting result ever made available. A hairdryer that was used by the culprit to bound the victim’s feet with its cord has black dusting powder employed in fingerprinting all over its surface, but prosecutors have never disclosed if any of these prints also matched a third suspect. According to police, moreover, a partial print was found on a Pepsi soda can in the victim’s apartment. It was sent to the state police crime “lab to see if they match same.” Those results have never been disclosed either. (Neither the Pepsi can nor knife are on any lists of evidence associated with this case today.)
With the police suppressing the knife, obstructing any independent effort to fingerprint a major crime instrument that was also possibly used in gaining a force entry, Ben LaGuer was put on trial based on another theory. The prosecutor argued that LaGuer had stolen the victim’s key set one afternoon while passing her door in route to his apartment, and then later returned with keys in hand. This argument hinged on the victim having reported her keys missing. But this argument was fatally flawed. The police found her locking assembly to have been “jimmied” upon their arrival. Why would LaGuer pry open her door when he had keys? With the knife suppressed, however, LaGuer was not only left without ability to obtain and match fingerprints from the actual culprit, but with little for the jury to crystallize the flaws in the state’s case.
In 1989, casting further doubts on whether she was even accurate in reporting her keys missing in the first place, the keys were discovered in her own pocketbook. (The building manager testified that she was forgetful and had previously misplaced her keys.)
After a highly critical four-part series in the Sentinel & Enterprise newspaper in August 1986, Leominster PD Chief Alan J Gallagher responded to a reporter, “You can’t second guess a jury. You present the evidence to them and they decide.” Raymond A Booth, president of the Patrolman’s Union, said, the published reports “caused me to sit and think about it.”
Booth added that the detective bureau of the Leominster PD ran “almost (as) a separate police operation.” This synchronizes with Carignan’s testimony that “I was conducting my own investigation.” (Tr369) He had no supervision or powers over other officers.
By late winter, the Leominster City Counsel had another crisis. The counsel voted 6-3 to ask the Mayor to disperse funds for an “independent investigation” into misconduct against Chief Gallagher and Lt Robert G. Hebert. According to a Sentinel & Enterprise account, Councilor John P. Mahan flashed a December 31 Sentinel article quoting Ben LaGuer as requesting that his case be included in any investigation of the department. “This is the can of worms you have opened with this nonsense.” (LaGuer would not step foot in court for his motion for a new trial for another two years.)
“Serious questions have been raised concerning the handling of evidence in Mr. LaGuer’s case—questions that deserve serious consideration,” says state Senator Jarrett T. Barrios, chairman, Public Safety Committee, in a letter to Dr. Carl Selavka of the Massachusetts State Police crime lab.
“A number of reporters have concluded that at the very least, his trial was a pretty odoriferous piece of business. In 1994, the Globe editorialized in favor of a new one.” Prosecutors presented not a shred of physical evidence. And for a case of interracial rape, a charge still fraught with a social legacy, twelve white men were empanelled as jurors. Allegations of racism forced a post-verdict hearing, in 1991 with jurors being called upon for testimony. When a reporter asked his impressions of the trial and that of Ben LaGuer a juror, Stephen J. Martin, says, “The life sentence showed the judge agreed with the verdict. ‘We saw an animal, and he saw the same animal.’”
Not only had the president of Boston University offered his personal prestige to the cause of freeing LaGuer, joining was MIT Linguist Noam Chomsky and William Styron, Leslie Epstein and Harvard Professors Charles Ogletree, Abbe Smith and Henry Louis Gates and former US Justice Department chief for Civil Rights Deval Patrick, as well as a legion of prominent members of academia, law, finance and clergy such as Minister Don Muhammad of the Nation of Islam. State representative Ellen Story, D-Amherst, and Benjamin Swan, D-Springfield, expressed dismay upon hearing that LaGuer’s conviction had been upheld by appeals court. “That’s unfortunate,” Swan said, “I had serious questions about how the prosecutor had handled evidence in that case.” Story said, “From what I know about this case, I think there’s not much question that he is innocent and evidence was tampered with.”
This case remains one of enormous legal, scientific and political consequences.
Cited sources and other pertinent information:
Boston Herald, “Judge in Rape Trial Said to Be Victim’s Ex-Lawyer” by JM Lawrence of 16 November 2004; Telegram & Gazette, “Judge’s Ethics Questioned” by Matt Brunn
Report number 3, Forensic Science Associates, 21 March 2002, pp. 9.
According to Tamara Fisher, an attorney 1999-2001, the defense never discussed with FSA the chain of custody background, as doing so might have left them vulnerable to charges of violating a “blind test” protocol.
(Tr.347)
In April 2001, the Leominster Police their 17 May 1989 Chain of Custody transfer sheets showing, among other articles, a “yellow cotton jersey”.
1983 State Police lab notes of Mark T Grant, pp1
State Police Inventory of 12 May 2000 by Gwen Pino, pp4, item 8
Affidavit of Peter J. Neufeld, 1 June 2000
Report Number 1, Forensic Science Associates, 15 August 2000, p.9
Report, Cellmark, JJ Higgins of 5 September 2000, pp3, item “N”
Affidavit from GB Pino of 6 November 2000, paragraph 15
State Police Inventory of 12 May 2000, supra
POST CONVICTION EVIDENCE ASSESSMENT REPORT by Gwen B Pino 14 August 2000 pp 2, item 5
Report, Cellmark, JJ Higgins of 5 September 2000, pp3, item “N”
Finding and Order on Defendant’s Motion for DNA Testing of February 2001; further findings and order on Defendant’s Motion for DNA Testing of May 2001, items “a, b, c and n.”
Letter from Gwen B Pino to state legislator Ellen Story 27 August 2003
Transcript of May 22, 1989 court hearing, p. 74.
Internal 1983 State Police Lab notes of Mark T. Grant.
Forensic Science Associates, Report 2, Table 1, Profiler Plus Genes, P4 (February 2001).
Report number 2, Forensic Science Associates, 4 February 2001 ("The trace level of male alleles found in these two samples are genetically compatible with Alan Keel from our laboratory. It is likely that on the order of a few dozen epithelial cells from Mr. Keel were inadvertently deposited on these slides while speaking near or over them." pp 12).
Follow Up, Investigative Report of July 14, 1983 by Detective Carignan.
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.
Trial Tr. 344 / Trial Tr. 379
State Police “Record of Evidence Submitted” form of August 3, 1983; State Police Crime Lab Report of November 1983, item No 21.
Follow Up, Investigative Report of July 14,1983 by Detective Carignan (“In the room where the uniforms were and papers of Benjamin Laguer I observed several tube socks…of different stripes and there were several pair that did not match”)
State Police, Evidence Inventory and Documentation Report of 12 May 2000 by Gwen Pino
ADA JR Lemire told the trial judge that “the woman testified that she noticed striped socks (on the intruder) and the police later state they obtained a search warrant and went into the LaGuer apartment, while Mr. LaGuer wasn’t there and there was a number of unmatching tube socks with stripes around the top. They did not take any of them, they made physical observations. Detective Carignan will testify to this sock.” The trial judge then asked the prosecutor “Why didn’t they pick up the socks?” ADA Lemire responded: “Judge, they didn’t.” (Tr 261)
In April 2001, the Leominster Police their 17 May 1989 Chain of Custody transfer sheets showing, among other articles, three (3) pairs of underwear.
Transcript of May 22, 1989, court hearing, p. 7. (“These are the two underpants that were listed in the report, in the lab report, as far as any underpants that’s in the evidence box.”)
Memorandum, from BU General Counsel Todd Klipp to BU President John Silber of 15 April 1999
US News & World Reports “America’s Best Graduate Schools” 10 April 2006
Attorney Barry Berke of Naftalis & Frankel, LLP, New York
Attorney Oliver C Mitchel Jr., formerly of Goldstein & Manello, PC, Boston
November 1999 affidavit of Richard Slowe, a former FBI agent and prosecutor hired to supervise the defense’s handling of these articles.
Transcript of May 22, 1989 court hearing, pp. 130-131.
Robert Cordy was a managing partner in the Boston office of McDermott, Will & Emery. A former chief counsel during the William F. Weld Administration, Cordy today is an Associate Justice of the Supreme Judicial Court.
District Attorney John J Conte’s Press Release of 14 January 2000
In a July 8, 1998 letter to Lt. Michele D. Pellecchia of the Leominster Police, disclosed in April 2001, Wysocki wrote: “I am particularly interested in items 15 to 18 on the attached Lab report dated November 3, 1983 from the Department of Public Safety.” (These items correspond to the rape kit.) The lab report is scribed with “also Benjie’s underwear” next to “underpants – suspect.”
Press Release “Setting the Record Straight” of 25 April 2004
Court of Appeals, Docket No. 98-P-68.
In his response of July 10, 1998 Lt. Pellecchia wrote, “ADA Sandi Wysocki requested items 15, 16, 17 and 18 from us on another request for an appeal on the part of the defendant. Our records indicated that all evidence was turned over to CPAC Tpr. William Kokocinski on 5/17/89 on request of ADA Kate McMahon by Lt. Ptak. I notified ADA Wysocki of this information.”
DA John J Conte’s unpublished response to a Boston Globe story entitled “Results could Lead to LaGuer’s Exoneration” 15 February 2002
Transcript 9 January 2002, pp 14-15
Interview with Mark T. Grant of 8 May 2000
Interview with Dr. William C. Siegel of 8 May 2000
T&G, “Tests Inconclusive in LaGuer case” by M Bruun of 27 September 2001
Leominster Hospital, Lab Report of specimen from Lennice May Plante of 13 July 1983; Report Number 1, Forensci 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.”)
Ben LaGuer was arrested (3) days later. He underwent a full medical exam at Worcester County Jail, where he remained until his trial. The fact that LaGuer was not treated for a perineal infection coupled with the scientific certainty of these vaginal and rectal swabs being total devoid of male DNA, contradicts any claim of rape of the kind prosecutors allege in this case. How could LaGuer have raped a fungal-infected woman for eight unremitting hours and not become infected? How could this woman been raped for so many hours and the most advanced DNA test of these fungal soaked swabs not yield a single male DNA cell?
Report Number 1, Forensic Science Associates, 15 August 2000, pp 6
Report from T. Kessis to State Rep. Ellen Story of 1 November 2005.
T&G, “DNA Finding Difficult to Rebut” by M Bruun of 31 March 2002 (“The time to make those claims is not now,” Dr Blake said. “The time to make those claims was on Day One.”)
Testimony, Mark T. Grant, State Police analyst of 22 May 1989 pp. 79 (“Well, on the white underpants, well, the visual examination again, then to determine the presence of acid phosphatase, it would be a two-stage test with sodium alphanaphthyl phosphate and FAST BLUE DIASEL B, in the presence of distilled water—put in a piece of filter paper in distilled water and add the chemicals to note the presence or absence of a purple reaction.”)
Letter, L. Kobilinsky to J. Rehnquist of 28 May 2004.
Thompson, How the Probability of a False Positive Affects the Value of DNA Evidence. J. Forensic Sci., January 2003.
Testimony of Robin W. Cotton, Cellmark’s forensic lab director, in the case of Alfred Gaynor (SJC08807) (2005)
Forensic Science Associates, Report 2, Table 1, Profiler Plus Genes, P4 (February 2001)
The testimony of D.D. Riley (Essex, 9777CR-0196) (11-24-98) pp.11
State Police Crime Lab Report of November 1983, item No 17
Original, Investigative Police Report of Timothy Monahan13 July 1983
Transcript of May 22, 1989 court hearing, p.47. (“Yes. Detective Carrignan, the investigator, always made it a habit to submit the entire police report so I read the entire police report…”)
Letter from P Ettenberg to J Lemire of 24 October 1983
Forensic Science Associates, Report 2, Table1, Profiler Plus Genes, p 4 (February 2001)
T&G, “DNA Finding Difficult to Rebut” by M Bruun of March 31,2002 (“Twenty years ago,” Dr Ed Blake said, “scientists would not have been able to detect the evidence.”)
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, Cellmark Diagnostics, J.J. Higgins, 5 September 2000 p.2 (“Unknown stain, morphology of cellular material not recognized for identification.”)
In court papers of 27 April 1989 prosecutors conceded that Ben LaGuer’s “dog tags, the only evidence of his blood type apparently known at the time of trial, indicated that he was Type ‘O’ blood.” But only from interviewing Detective Carignan, whom had admittedly seen LaGuer’s military gear while searching his bedroom, could prosecutors have known about these dog tags. If police and prosecutors internally understood LaGuer might be a certain blood type based on these dog tags, then State Police analyst Grant likely also knew at least as much.
T&G, “LaGuer DNA a Match” 23 March 2002 by M Bruun (“A cop doesn’t know how to extract sperm from an an underwear so you have to get the crime lab into it. Then you have to redeposit it into pubic hairs and leave so few behind that nothing can be done with it until 20 years later. These people had to anticipate the development of this technology to detect a couple of hundred spermatozoa.”); also see. T&G, “DNA Finding Difficult to Refute” by M Bruun of 31 March 2002 (“Twenty years ago,” Dr Blake said, “Scientists would not have been able to detect the evidence, rendering the theory that someone would have deliberately planted such an amount incredible.”)
The idea of these samples being possibly “contaminated beyond the point of obtaining valid test results” was first posited by DA John Conte in a 14 January 2000 press release.
Boston Globe,”DNA testing backfires,” 24 March 2002 by David Arnold (“LaGuer maintains that he was set up, that back in 1983 police removed underwear from his apartment, and that a State Police laboratory technician washed small amounts of semen from his garment unto pubic hairs that eventually would be tested in California.”)
T&G, “Media Fell for Tactics of LaGuer” 2 April 2002 by Dianne Williamson (“To Believe Mr. LaGuer’s ludicrous theory that someone 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 use...”); Worcester Magazine, “Slants & Rants” 4 April 2002 by Allen Fletcher (“We may still, in fact, believe in Ben LaGuer, or at least in the remarkable individual that he showed us. But the brutal crime cast an overpowering shadow. We will not again believe in the Ben the social abstraction—the public cause, the traveling medicine show—nor will we abet him in its creation.”); Boston Globe,”Shock Waves and Turnaround” 22 May 2002 by Mark Jurkowitz (“When in late March, long awaited DNA tests that LaGuer and his backers expected to exonerate him seemed to cement his guilt, the shock waves reverberated through the media world.”)
Letter from E. Blake to D. Siegel of 4 April 2002
The defense realized that LaGuer’s illegally seized underwear had been tested together with rape the kit in April 2001, when ADA Sandra Hautenan gave Siegel a stack of reports several inches thick. But even then prosecutors were still keeping secrets. In a June 28 2001 letter from the Office of the State Police Chief Legal Counsel, the defense was denied its “public records request directed to the [crime lab] for various documents pertaining to evidence collected in connection with” this case. ( Letter, from Jed M. Nosal to Tamara Fisher of 28 June 2001.) In a December e-mail, instead of disclosing what she admits are “many files and boxes” in her office, ADA Hautanen informs Siegel that she had provided “all of the information we have been able to locate that is responsive to your requests.” ( e-mail, from S Hautanen to D Siegel of 3 December 2001.) Hautanen and her superior were in no mood to voluntarily disclose any more damaging material than they had accidentally in early April and November 2001.
District Attorney John J. Conte’s Press Release of 14 January 2000
Letter from D Siegel to M Stern of 28 March 2002
Lab Report, Ben LaGuer Prison Medical Record, 11 August 1986; Also see, Report, Blood Services, University of MA Medical Center, 25 September 1987
State Police Crime Lab Report of November 1883, item 14
State Police Crime Lab Report of November 1983, item 4
Boston Globe, “Hearing set to consider new trial in rape case” by James B Ayers of 28 April1989
Leominster Police Department Report by Lt Michele D Pellecchia of 10 July 1998 (“Our records indicated that all evidence was turned over to CPAC Tpr William Kokocinski on 5/17/98 on request of ADA Kate McMahon by Lt Ptak.”)
State Police “Record of Evidence Submitted” form of 17 May 1989 (3:15 pm)
Follow Up, Investigative Report of 14 July 1983 by R Carignan
A series of photographic exhibits are on file with state and defense lawyers.
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.”)
Testimony of State Police Analyst Karolyn M. LeClair, 22 May 1989 pp93; Also see Testimony of State Analyst Mark T Grant, 22 May 1989 pp61( “I have never actually done the amylase test myself but I know that if saliva is present, that’s one of the tests that is used to determine the presence---well, the presence of saliva.”) ; Also see Testimony of Forensic consultant Patrick Demers of 22 May 1989 pp 32 (“Amalyse is an enzyme produced in the oral cavity and it is present in saliva and if there is amylase present, you can assume that the biological fluid that it came from is saliva.”
Memorandum and Decision Denying a New Trial by Judge Robert V Mulkern, 2 June 1989 pp4-5
Report number 1, Forensic Science Associates, August 2001 (“Lennice Plante can not be eliminated as the source of the female blood from the tissue.”) pp 9 (Carignan delivered twenty-one (21) articles to the State Police crime lab between July and August 1983. Analyst Grant reported a B-Type blood was on bloody napkins found in the victim’s apartment which could not be linked to the victim (who was O-Type) nor any of the police officers. In August 2001, a DNA analysis of this blood produced a genotype that matched the victim’s own DNA profile (she was O-Type) and thus Grant’s reporting of this blood as B-Type was false.)
Follow Up, Investigative Report by R Carignan,, 13 July 1983, pp1
Commonwealth’s Opposition To D’s Motion For New Trial Of May 2004, pp. 10-11
Report Number 1, Forensic Science Associates, 15 August 2000, p.4
Report Number 1, Forensic Science Associates, 15 August 2000, p.9
State Police crime lab report of November 1983, Items 18 (“No seminal fluid or sperms cells were detected on the swabs.”)
State Police crime lab report of November 1983, Items 15 and 16 (“No sperm cells or seminal fluid were detected on the slides.”)
Memorandum of Decision and Order on Defendants Motion for New Trial of 22 September 2004, pp 7
Id.
Associated Press, “From behind prison walls a convicted rapists campaigns to clear his name” by Theo Emery of 23 February 2002
Decision and Order on Defendant’s Motion for New Trial of 22 September 2004, pp11 n 24
(“Not providing a saliva sample that would have only helped me was a mistake. But I felt about to be taken out and hung from a tree. The hostility in Detective Carignan’s body language, his gaze, brisk and dismissive attitude for anything I had to say made me feel endangered and beyond that point I was not going to facilitate in my own execution. The police station was full of hateful eyes, white cops avenging a white woman’s rape by a colored man in town. The mistake borne out of fear that I made must be viewed in the context of Detective Carignan wanting a blood type, but inexplicably demanding a saliva sample instead. It was a setup. And I told a lawyer.“)
In the summer of 1983 Robert Hammack and Nancy Dickman, private investigators of MayDay Systems, found a series of alibi witnesses “whom we believe will be helpful and willing to cooperate in the LaGuer defense.”
T&G, ‘interesting angles to the rape appeal” by Billing B Kingsbury 26 May 1991
Trial Transcript 26 January 1984, pp392
According to Patrolman Timothy Monahan’s report, “I asked her if she knew who the person was (that did this to her) and she stated “no.” Lt Robert Hebert, the officer then in charge, reported in his report that “she was unable to give me any description of the assailant.” (Tr241) At the hospital, Dr William C Siegel noted in her medical chart that she arrived “by ambulance stating that she was beaten and raped by an unknown assailant…She denies knowing her assailant.” According to Dr Edmund Meadows, her primary physician, “her assailant told her that he would kill her if she told what he looked like but she denies knowing her assailant.” By the time Carignan and Monahan left the hospital, according to Carignan’s report, they only had a “scant description of a black male very short and small in build.” She testified that during the entire ordeal she was "pretty well dazed and in shock" and at the time she was shown the photographic array she was "quite drugged up", "so out of it" and not wearing her reading glasses. Nonetheless she picked out LaGuer's photo only when Carignan asked her to "pick out anybody she knew." (Tr. 151, 152, 350, 351) Specifically, she testified that she was "putting my hand on the Bible" that she never told Carignan that she had “seen (LaGuer) several times and had seen him going in and out of the apartment next to her and use his own key to get into that (LaGuer's) apartment." (Trial Tr. 182)
Trial Transcript 24 January 1984, pp182
Elizabeth Barry, Interview. Greater Boston, Host Emily Rooney. PBS.WGBH, Boston.12 June 2003
In spite of multiple admissions in court papers, the full and true extent of her schizophrenia and treatment is protected by a 1983 order that still holds her psychiatry records impounded.
Original, Investigation Report by Timothy E. Monahan 13 July 1983, pp 3
Letter from J Lemire to P Ettenberg 13 December 1983
Trial Witness List from J Lemire to P Ettenberg 17 January 1984
Transcript of Jury Empanelment 24 January 1984,pp4
Follow Up,Investigation report by Ronald N. Carignan of July 1983,pp 2
Letter from P Ettenberg to J Lemire of 29 November 1983
Affidavit from P Ettenberg of 27 November 2001
Letter from J Lemire to P Ettenberg of 13 December 1983
Affidavit from P Ettenberg ,Supra.
(Tr 398-399, 402)
Hearing of September 18, 1985 (transcript ) pp 30
State Police Fingerprint Analysis Report of 16 July 1983
FollowUp, Investigation Report by RN Carignan of July 15 , 1983 pp 3
FollowUp, Investigation Report by RN Carignan of July 14 , 1983 pp2
( Tr 182 )
Search Warrant Application by RN Carignan of July 14, 1983 , pp 2
A female tenant on the first floor told Lt. Robert Hebert, within hours, that she saw three young male suspects outside her window at 1:00AM. Soon after LaGuer was arrested private investigators identified Jose Orlando Gomez (DOB 04/22/58, SS# 021-52-3234) as a likelier suspect. Carignan never investigated Gomez even though his mother had lived in the same apartment complex, he was similar in build and complexion to LaGuer, and he had a history of sexual misconduct which had resulted in him being sent to Worcester State Hospital. Since the trial more evidence has emerged. Gomez confessed his guilt to a J.C. Fenwicks’ bartender in Leominster. Another witness also informed relatives of LaGuer that he had information of Gomez’s guilt. In the summer of 1983, Gomez entered the Leominster Fire Station in what witnesses considered a delusional state of mind. Neddy Latimer, Director, Spanish Center, was informed of the incident. In 1998 Gomez was arrested and charged with rape (Superior Court 98-0558-1-2). A year later he violated a restraining order (Leominster 9961CR0442). His brother, Efrain Agosto, was charged with rape in 1997 (Fitchburg 9716CR0191) He is a registered Sex Offender. In 1989 former juror William P. Nowick spoke out to Worcester Magazine. “He’s heard from one law enforcement official who stated outright that LaGuer wasn’t the man…In fact; this official went on to say that they will capture this person once they find his mother…” (7/12/89). Gomez currently resides with his mother at 143 Meadowbrook Lane in Fitchburg.
Original,Investigative Report by Lt Robert Hebert, 13 July 1983 (“She was very hard to understand and not able to give me much about what took place except that the subject had a knife which I observed on a night table.”)
Original, Investigative Report by R Carignan, 15 July 1983 (Charging LaGuer with “unarmed robbery” and other offenses.”
The knife does not appear on any list of trial exhibits (Tr 127, 272)
Original, Investigative Report by Timothy Monahan, 13 July 1983 (“I went to the woman’s feet and tried to untie the cord from around her feet (the cord from the hair dryer) I was unable to do so I used a knife to cut them.”) Also see trial testimony of T Monahan. He testified that he used his own knife to untie her. (Tr 210)
A series of photographic exhibits on file with attorney. The hairdryer itself is available for experts to inspect through the clerk of courts.
Follow Up, Investigative Report by R Cariganan, 15 July 1983, pp3
Sentinel & Enterprise, “LaGuer Case has Provoked Little Comment by Police” by Tracey F. Seelye December 1986
Sentinel & Enterprise, “Counsel Wants Own Police Probe Funds” by Robert D. Winship
Letter, J. Barrios to C. Selavka of 15 July 2004.
Boston Globe, “The Best PR Man Behind Bars” by Mark Jurkowitz 9 January 1996
Boston Phoenix, “Oxymoronic: For Benji LaGuer, there’s no justice in the system” by Sean Flynn 30 August 1991 (“The irony in the approach runs deep. In order to preserve a supposedly fair and truthful verdict, [the prosecutor] was trying to make one of the men who rendered it look feeble-minded and untruthful, thoroughly incredible as a witness to the deliberation yet eminently qualified as a participant in them.”)
T&G, “Jurors mixed on recent findings in LaGuer case” by Matt Bruun of 13 December 2001
Springfield Republican, “Rapist won’t get new trial” by Dan Ring of 3 March 2006
The New Yorker, Jan. 17, 2000 "DNA On Trial: The Test Is Irrefutable So Why Doesn't It Always Work?" by Peter J. Boyer (Dr Ed Blake exonerated through DNA Kerry Kotler, who was later arrested for another rape. At his second trial, Blake testified that the police had framed Kotler by stealing his DNA. The jury disagreed.); New York Times, March 16, 2003 “You Think DNA Evidence is Foolproof? Try Again” by Adam Liptak (“It’s a ‘truth machine,’ but the human factor can be a spoiler.”); New York Times, Mar. 11, 2003 “Review of DNA Clears Man Convicted of Rape” by Adam Liptak (Prosecutors vowed to retest DNA in 525 cases); New York Times, Feb. 9, 2003 "Troubled DNA Crime Lab Faces Growing Scrutiny" by Nick Madigan (A DNA sample used to falsely convict a man is added to a mounting pile of dubious samples.);CBS News 48 Hours, “A Crime of the Mind” Sept. 27, 2002 (a jury acquitted psychiatrist Ronald Malave based on the idea that his rape accuser had transferred his sperm to her panties, probably by rubbing his stolen underpants together with hers. The State Police analyst was so helpful to their defense that Malave’s team felt no need to present their own DNA expert.); Boston Globe, April 17, 2003 “FBI Scientist Admitted False Testimony” by John Solomon (AP) (U.S. Justice Department reviews charges that an FBI scientist botched at least 103 DNA cases. Another scientist resigned while under investigation for improper testing of more than 100 DNA samples.) Associated Press, August 26, 2004 “Kobe Prosecutors Take Aim at Defense DNA Experts (Prosecutors charge that crucial DNA evidence the defense had hoped to use to prove NBA star Kobe Bryant’s innocence might have been contaminated.) ; Insight Magazine, June 10, 2003 “Inside the DNA Labs” by Timothy W. Maier (Justice Department Inspector General so incensed by bad science infecting crime labs nationwide that DNA errors may have jeopardized thousands of cases and sent innocent people to death row.); Houston Chronicle, “New DNA Exam indicates errors in 1997 murder case” by Roma Khanna of 15 February 2002 (A DNA test that forced Robert Lee Wallace to plea guilty to avoid the death penalty is found faulty on retesting.); Baltimore sun, “DNA lab fires analyst over falsified tests” by Naura Cadiz of 18 November 2004 (Cellmark, the world’s largest private DNA lab claims that falsification occurred in only 20 tests, but it is investigating other cases.); MA Lawyers Weekly, “Science Not A Guarantee Against Mistakes” (Letter) by Joelle Anne Moreno of 22 December 2003 (“Our faith in DNA evidence has recently been shaken by revelations of mistakes and misconduct.”); New York Times, “Prosecutors Are a Focus In Houston DNA Scandal” by Adam Liptak of 9 June 2003 (internal investigation of the laboratory would result in disciplinary or criminal charges against nine officials.); New York Times, “Prosecutors Fight DNA Use For Exoneration” by Adam Liptak of 29 August 2003 (While DNA can prove whether someone is associated with a given piece of biological evidence, prosecutors insist that is not the same thing as proving whether a defendant committed a crime.); Boston Herald, “Foolproof capital punishment is but the governor’s fantasy” (Oped) by James P Rooney of October 2003 (“The net result is that DNA testing is not a panacea for all the problems of determining guilt or innocence…”) Washington Post, “Va. DNA Analysis Incorrect In Murder” by Maria Glod of 7 May 2005 (“Intense political pressure prompted a senior scientist at Virginia’s DNA laboratory to report flawed results.”); New York Times, “Lab’s errors in ’82 killing force review of Virginia’s DNA cases” by James Dao of 7 May 2005 (Governor orders a review of Virginia’s nationally recognized DNA lab’s handling of testing in 150 cases as well as new procedures to insulate lab from any outside political pressure.)” Associated Press, “Army Worker Investigated in Possible DNA Test Fraud” by Robert Burns 27 August 2005 (The Army’s Criminal Investigations Command alerts top Army, Navy, Air Force, and Marine Corps lawyers by letter of the “identified deficiencies” in 479 DNA cases possibly under review.) Washington Post, “Paternity Suit Raises Doubts on DNA Test – D.C., case points to growing problem” by Tom Jackman 22 August 2005 (Points to a series of bizarre cases, including one in Michigan where “a DNA test on evidence from 1969 matched someone who would have been four years old at the time of the slaying and couldn’t possibly be involved.”); Associated Press, “Dozens Falsely Jailed Due to Prosecutor Misconduct” by AP byline (www.publicintegrity.org) (Prosecutors misbehaved so badly in more than 2000 cases during that period that appellate judges dismissed criminal charges, reversed convictions or reduced sentences, the study found.”); Boston Globe, “Prosecutors to Retry Twin in Case Marked by DNA Limits” by Jonathan Saltzman 26 August 2005 (“DNA evidence was unable to definitely link a defendant to the crime because the individual had an identical twin.”); The Providence Phoenix, “Down By Law, Some Innocent People Are Convicted for Crimes They Didn’t Commit” by Ian Donnis 15 October 1999 (“In a 1997 report, the Death Penalty Information Center In Washington, D.C., found that the danger that innocent people will be executed is getting worse.); Worcester Magazine, “The Ultimate ID: DNA Forensics Can Prove Who’s Innocent, Who’s Guilty” by Ben Welch); USA TODAY, “Innocence of Former Death Row Inmates Overstated,” by Richard Willing 25 January 2005 (Prosecutors dispute claim of factual innocence by six former death row inmates in Court TV film, The Exonerated.); New York Times, “Still on Death Row, Despite Mounting Doubts” by Raymond Bonner 8 July 2002; Boston Globe, “Inmate’s Exoneration Renews Call for an ‘Innocence Panel’” by Jonathan Saltzman 9 March 2004; Boston Globe, “Powell Freed from Prison: DNA Evidence Clears Him” by John Ellement 9 March 2004; Boston Globe, “Foolproof Forensics? Even Science May Not Make a Death Sentence Infallible” by Beth Daley 8 June 2004; Boston Globe, “With DNA Evidence, States Keep Unsolved Cases Open” by Brendan McCarthy 20 June 2004; Boston Herald, “Verdict: Flawed Forensics” by Barry Scheck & Peter Neufeld 14 March 2004; Telegram & Gazette, “New Guidelines for Eyewitness Testimony, Photo Arrays and Lineups are Being Discouraged” by Martin Lutterell 13 March 2005; Boston Herald, When ID’ing Suspect, Seeing Isn’t Believing” by Tom Keane 7 April 2004; Boston Herald, Cross-racial ID Issue a Real Eye-Opener” by Howard Manly 14 March 2004; Boston Globe, “Pathologist Tackles the Crisis in State Crime Labs” by Scott Allen 15 August 2005; The New York Times, “When Prosecutors Err, The Price is Steep, and It is Paid Mostly by Others” by Andrea Elliott & Benjamin Weiser 21 March 2004; The New York Times, “Hurricane, a Wronged Boxer, as Hero of His Own Tumultuous Life” by Ralph Blumental 26 December 1998; Popular Science, “DNA and a New Kind of Racial Profiling” by Jessica Snyder Saches December 2003; USA Today, “8 Years In a Louisana Jail, But He Never Went to Trial” by Laura Parker 29 August 2005. Boston Globe, “With DNA evidence, states keep unsolved cases open” by Suzanne Smally 20 June 2004 (a “John Doe DNA” indictment, prosecutors say, can keep cases open); Boston Globe, “Representation of indigent defendants inadequate, study says “by AP 11 February 2005 (“All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights, says ABA Study.”); The Atlantic Monthly, “The Texas Clemency Memos” by Alan Berlow July/August 2003; Boston Globe, “State high court is asked to ban use of fingerprint evidence” by Jonathan Saltzman 5September 2005 (Lack of scientific rigor puts in question validity of fingerprint evidence.); Boston Herald, “Real justice begins with diverse juries: by Rachelle Cohen 5 June 2003 (Jury selection in Massachusetts viewed as problematic by SJC.); Boston Globe, “Science key in building cases for death law” by Rick Klein 30 September 2003 (Governor Mitt Romney triggers debate whether with cutting-edge science, is it possible to draft a fail-safe death penalty); National Review, “Bad List / A suspect roll of Death Row ‘innocents’” by Ramesh Ponnuru 16 September 2002 (At most, what can be said of the “Innocence List” compiled by the Death Penalty Information Center “is that the legal system cannot establish guilt beyond a reasonable doubt.”); TIME, “When The Evidence Lies” by Belinda Luscombe 21 May 2001 (“Joyce Gilchrist helped send dozens to death row. The forensic scientist’s errors are putting capital punishment under the microscope.”); TIME, “Botching The Big Case” by Nancy Gibbs 21 May 2001; Gannett News Service, “Defendants in False Evidence cases at Clear Disadvantage” by Stacey McKenzie 16 July 1994; Gannett News Service, “Convicted on False Evidence” by Laura Frank and John Hanchette 19 July 1994; Popular Science, “Evidence from Dust & Detritus” By Gordon Grice October 2002; Christian Science Monitor, Can You Build a Foolproof Death Penalty?” by Seth Stern 5 November 2003; Vanity Fair, “Jack the Ripper” by Patricia Cornwell December 2002 (Cornwell reveals how she and the others used state of the art forensic science, including DNA tests, to make the case.); Tulsa World, “Lawyers Seek to Overturn Rape Conviction” by Bill Braun 22 November 1996 (Reviewing Case of Timothy Edward Durham, a story of a botched DNA test.); TIME, “This Man Might be Innocent/This Man is Due to Die” Cover Story 18 May 1992 (Reviewing the case of Roger Keith Colman); Knight Ridder, “Scientist Remains Unsatisfied with Retesting of Evidence” by Faye Flam 13 January 2006 (DNA expert calls the retesting effort “a cynical exercise in manipulating a scientific investigation.”); New York Times, “DNA Ties Man Executed in ’92 to the murder He Denied” by James Dao 13 January 2006 (“The testing was closely watched across the nation because of the belief that it would provide powerful momentum to death penalty abolitionists if it were to prove that an innocent man had been put to death.”) Associated Press, “DNA testing takes back seat in high-court death row case” by Toni Locy 12 January 2006 (Arguments on the case of Paul Gregory House focus on the “often messy nature of criminal trials, in which defendants get caught lying for inexplicable reasons, experts dual over how to interpret evidence, prosecutors withhold evidence and police fail to pursue all suspects.”); New York Post, “O.J. Verdict Still Doesn’t Fit” by Andrea Peyser 3 October 2005 (“Lesson No. 1: Barry Scheck is the devil. DNA, then in its infancy, was billed as the magic bullet that freed the innocent and convicted the guilty. But O.J.’s DNA was all over the crime scene. So Scheck confused the jury by insisting that DNA testing was really flawed.”); Boston Globe, “SJC bars a type of prints at trial” by Jonathan Saltzman 28 December 2005 (affects only the sliver of cases in which fingerprint examiners add up characteristics from several prints to consider a match, about 1 percent of all cases); USA Today, “Push to solve cold cases has benefits – and cost” by Richard Willing 28 December 2005 (DNA identification of suspects in rapes unsolved for years can reopen wounds for the victims); Associated Press, “Outgoing gov. wants to determine if Virginia executed innocent man” by Kristen Gelineau 3 January 2006 ( a forensic analysis is a delay because Dr. Ed Blake, who has kept the samples frozen since 1990, refuses to return the samples to Virginia, arguing that testing should be done at his lab.); Time, “The Rise and Fall of the King” by Michael D Lemonick 9 January 2006 (DNA results used to prove that the stem cells derived from clones seemed suspicious to scientists.); TIME, “True Confessions?” by Brian Bennett 12 December 2005 (Three sailors once confessed to murdering a Navy wife. But another man’s DNA is linked to the crime.); GQ, “The Wrong Man” by Andrew Corsello November 2004 (Calvin Willis walked out of prison a free man, the 138th American exonerated by DNA); Black News Weekly, Jury awards $15,000,000 to black man wrongfully imprisoned for murder” by Noble Johns undated (www.blacknewsweekly.com/ bin32.html); Boston Herald, “Justice must be trial without error” by Jennifer Chunias & Neil Raphael 25 May 2004 (How many years will innocent people have to spend in prison?); New York Times “Crusading for Prisoners When the System Fails” by Julie Salamon 27 June 2005 (PBS filmmaker Ofra Bikel helps to gain release of 13 out of 14 inmates she has profiled as innocent); Associated Press, “Federal judge orders new trial for death row inmate” in Pittsburgh by AP 24 February 2005 (Ernest Simmons was given a new trial because prosecutors withheld key evidence undermining star witness); Charlotte Observer, Editorial, “A Fair Trial Rescues Alan Gell from Death Row” 22 February 2004 (“Withholding evidence has been illegal since 1963, but not single prosecutor has received significant punishment.”); New York Times, “The System Dances With Death” by Jim Dwyer & Jodi Wilgorn 21 April 2002 (“There are proportionally far more innocent people convicted than I ever thought there were,” says former CIA and FBI director William H Webster.); New York Times, “An Old Case in a Different New York” 20 October 2002 (The infamous Central Park Jogger case saw five black males convicted of sexual assault, even though DNA evidence pointed to someone else.) by Sam Roberts; Associated Press, “Freed man charged in slaying” by Carrie Antlfinger 16 November 2005 (Steven Avery, cleared of a sexual assault by DNA, is now charged with the murder of Teresa Halback.); USATODAY, “FBI Checking Prints in death row cases” by Richard Willing 11 January 2006 (FBI is reviewing all federal and state cases of death row inmates scheduled for execution based on the lab’s fingerprinting analysis.); The Republican, “Court review vital in rape-murder case” by James Kilpatrick 6 August 2005 (US Supreme Court reviews questionable evidence in the case of Bobby Lee Holmes.); Telegram & Gazette, “Conte’s not talking and that’s that” by Dianne Williamson 26 January 2006 (DA John Conte’s “penchant for paranoia and secrecy is just plain weird, and sometimes irresponsible. His office is triple-locked and stacked with television monitors. He seldom appears in public without a protective detail.); WGBH, “Jewel of Earth” episode of NOVA, Paula S Apsell, Executive Producer 14 February 06 (Scientists seeking DNA from specimens frozen in a Amber stone discern that the unexpected DNA of fish was due to contamination. The examiner had a tuna sandwich at same time as the analysis was being performed, and inadvertantly contaminated a DNA first assumed to be from dinosaur.); Boston Globe, “Manslaughter Deal struck in 1981 murder” by Raja Mishra 17 February 2006 (Patrick J Durham accepts a guilty plea when DA Daniel F Conley recognizes that “the DNA evidence would be vigorously contested” as contaminated and mishandled.); Washington Post, “Blood Trail Is Crux of Forensic Mystery” by Charles Lane 6 February 2006 (Lawyers for Paul Gregory House, experts including Ed Blake say, presented the US Supreme Court with junk science.); TIME, “DNA testing may not be so, foolproof as once thought” Dick Thompson 5 June 1989 (Advocates of DNA still maintain these tests are practically foolproof if done properly. “It’s not the technology that’s being challenged,” says John Hicks, a deputy assistant director of the FBI, “but the proficiency of the tester.”); TIME, “Convicted by Their Genes 31 October 1988 (A new forensic test is revolutionizing criminal prosecutions.); Boston Globe, “Scientist vows to safeguard DNA in Va. murder case” by John Aloysius Farrell 16 September 2000 (“Evidence sought by lawyers for another condemned man, Derek Barnabei, was missing from a locked evidence room for three days. DNA tests of that evidence failed to absolve Barnabei, and he was executed ... despite his lawyers’ assertions that the disappearance was evidence of ‘deliberate and malicious tampering.’”); Virginian-Pilot, Editorial, Confusion over DNA a threat to Justice, 29 August 2005; Richmond Times-Dispatch, Study will ask whether errors in Washington case are ‘endemic to the system by Frank Green 14 June 2005; Virginian-Pilot, editorial, Alarming indifference from crime lab boss 10 May 2005; Winston-Salem Journal, State crime lab is faulted: Lawyers group calls for probe, cites DNA errors in three cases by Phoebe Zerwick 20 July 2005; Richmond Times-Dispatch, Mistakes by state DNA firm alleged The Illinois State Police, ‘out-raged’ by findings, end their contract with the firm by Frank Green 20 August 2005; Minneapolis Star-Tribune, Defense attorneys raise concerns about DNA sample mix-up by David Chanen 20 May 2005; KSTP-TV News, BCA crime lab under the microscope (at www.kstp.com/ article/stories/S8367.html?cat=1); Las Vega Review Journal, DNA evidence: Officials admit error, dismiss case by Glen Puit 18 April 2002; Ann Arbor News, Judges raises possibility DNA evidence may have been contaminated at State Police lab by Liz Cobbs 11 May 2005; Virginian-Pilot, Governor appoints panel to oversee Va’s crime lab by Christina Nuckols 9 August 2005; Seattle Post-Intelligencer, 23 DNA testing errors in serious criminal cases unearthed in 2004 (http://seattlepi.nwsource.com/special/crimelab/); Houston Chronicle, Retesting of crime lab work in question by Roma Khanna 6 December 2004; Legally Scientific? A brief history of DNA evidence in the criminal justice system by Michael Strutt 9 June 2001 (http://www.justiceaction.org.au/actnow/ Campaigns/DNA/pdf_files/02_legal.pdf); US Department of Justice, Office of the Inspector General, The FBI DNA Laboratory: A Review of the Protocol and Practice Vulnerabilities, May 2004 (www.usdoj.gov/oig/special/0405 /final.pdf); National Law Journal, DNA Tests Unravel by Charles Sherman 18 December 1989; FBI Law Enforcement Bullitin, The Microscope Slide: A Potential DNA Reservoir by John E. Smialdk November 2000 (addressing the “seriousness of the contamination issue.”); The Champion, Understanding Recent Problems in Forensic DNA Testing by William C Thompson January/February 2006; US News & World Reports, Getting DNA to Bear witness/Genetic tests can reveal ancestry, giving police a new source of clues by Dana Hawkins Simons 23 June 2003; Time, This Man Might be Innocent 18 May 1992 (The story of Roger Coleman); Vanity Fair, That Championship Scandal by Buzz Bissinger July 2006 (“crucial DNA test on 46 Duke lacrosse players found no match with the accuser, making her allegations, that she was choked and raped and sodomized for about 30 minutes, even more uncertain.”); Center for Public Integrity, Harmful Error: Investigating America’s Local Prosecutors by Steve Weinberg (analyzing 11, 452 cases involving prosecutorial misconduct)(www.publicintegrity.org); Washington Post, Vast DNA bank puts policing at odds with privacy by Rick Weiss (reprinted in Boston Globe 4 June 2006)(“These data-bases are starting to look more like a surveillance took than a tool for criminal investigations, said Tania Simoncelli of ACLU in NY.); Newsweek, Doubts About Duke by Evan Thomas and Susannah meadows 26 June 2006 (“But the woman’s own statements to police and to medical personal were contradictory, and the physical evidence does not appear to support her claims or the police affidavit.”) Simon Ford, Fraud Detection through case reviews; A Presentation at the Forensic Bioinformatics 4th Annual Conference: The Science of DNA Profiling: A National Expert Forum, Dayton, Ohio, 13 August 2005 (online www.bioforensics.com/conference05/FBS Dayton 2005__Fraud.pdf); Boston Globe, Near match of DNA could lead police to more suspects by Gareth Cook 12 May 2006 (“Thegenetic surveillance of innocents would be along racial lines,” said DNA expert and lawyer Barry Scheck. “I think it is a troublesome idea.”); Boston Globe, City to pay $3.2m in wrongful conviction suit by Andrea Estes (A exonerated Neil Miller settles lawsuit with Boston City. “These were not mistakes,” said DNA expert and lawyer Peter Neufeld. “He was the head of the laboratory who testified more than 1,000 times who is caught in perjury.”)(March 2006); New York Times, “Ex-prosecutors and Deputies in Death Row Case are Charged with Framing Defendant” by Don Terry 13 December 1996; Chicago Tribune Magazine, “Nine Lives” by David Protess and Rob Warden 10 August 1997; Republican, “Wrongly convicted man gets $500,000” by Marla A Goldberg 13 August 2005; Boston Herald, 3 wrongly jailed will share $1.5M” by Casey Ross and Maggie Mulvihill 13 August 2005; Boston Herald, “Charges possible despite DNA tests” Tim Whitmire (AP) 17 April 2006; Boston Herald, “Special Report: Justice Denied” by Maggie Mulvihill 5 May 2004; Telegram & Gazette, “Conte rules out re-election - 30-year run to end” by Milton J. Valencia 25 January 2006;- USA TODAY, “Science takes hard look inward Journal editors focus on how to root out fraud” by Rita Rubin 11 January 2006 (University of Michigan professor seeks funds to organize international conference to address fraudulent research); Massachusetts Lawyers Weekly, Editorial, “Prosecutorial Power & Responsibility” 6 April 1998 (“Society suffers when those who prosecute are not humble enough to admit that sometimes innocent people get trapped in an imperfect system.”); Boston Herald, “Bad conviction rattles legal eagles” by Jules Crittenden 25 January 2004 (Defense attorney J.W. Carney says, “Proof beyond a reasonable doubt requires that every bit of evidence be scrutinized with care by everyone involved in the process, even in what looks like an overwhelming case_ f guilt.’); Boston Globe, “Panel decries wrongful convictions” by Jenna Russell 25 January 2004 (Supreme Judicial Court Justice Robert Cordy said, It’s frightening, because it can happen, and it-`s costly to everyone. We need to rededicate ourselves to making changes that will minimize the possibility of wrongful convictions.”); Boston Herald, “Judge clears way for wrongful arrest suit” by Tom Mashberg 6 September 2004 (“On the morning of the day of the plaintiff’s arrest, the Massachusetts State Police knew that the plaintiff”- Edmund F. Burke - “was not the person who murdered Irene Kennedy,’ said Superior Court judge Carol Ball.); Associate Press, “Federal judge orders new trial for death row inmate” no byline 24 February 2005; Massachusetts Lawyers Weekly, Editorial, “Genetic Testing: Learning More” 12 September 1994; Bostonnia, “CSI: Boston University/In DNA Forensics, ENG Prof Nabs the Guilty Twin” by Tim Stoddard (Fall 2004); Boston Herald, 22 Bay State men wrongfully jailed by Franci Richardson and Maggie Mulvihill/Herald/FOX 25 Probe of 5 May 2004; Boston Herald, Innocent point finger at ‘Mr. Homicide’“ by Franci Richardson and Maggie Mulvihill 5 May 2004; Boston Herald, These men’s lives ruined forever by Maggie Mulvihill 5 May 2004; Boston Herald, Misfits dumped into key cop unit by Maggie Mulvihill and Franci Richardson 6 May 2004; Boston herald, Mayor pushes for ‘compensation fund’ by Maggie Mulvihill and Franci Richardson 6 May 2004; Boston Herald, This boy did six years in the joint for nothing by Franci Richardson and Maggie Mulvihill 7 May 2004; Boston Herald, It’s time for age of innocence: A call for commission on wrongful convictions by Maggie Mulvihill and Franci Richardson 7 May 2004; Boston Herald, Man’s murder rap tossed 30 years after conviction by JM Lawrence 30 April 2004 Boston Globe, “DAs Call for More Staff at crime labs” by Tracy Jan and Maria Sacchetti 3 September 2006 (Spurred by the discovery of more than a dozen wrongful convictions in recent years, the Massachusetts’ district attorneys have issued new guidelines); Boston Globe, “You can buy a DNA test, but beware” by Judy Foreman 7 August 2006 (While the public believes genetic testing is subject to government oversight, that is largely not the case.); Boston Globe, “A Salve For Justice” Editorial 20 August 2006 (“Massachusetts also has failed to create an innocence panel to look at 23 overturned convictions since the 1980s.”); Boston Globe, Innocence by the Numbers by David Feige 16 July 2006 (“Is Justice Scalia’s faith in the criminal justice system, expressed in a recent opinion, based on the fuzzy math of the death penalty lobby?”); Justice Watch, Summer 2004 (“Asking prosecutors what we should do about wrongful convictions is like asking Hannibal Lecter what we should do about cannibalism,” says Rob Warden of the Center on Wrongful Convictions at Northwestern University.); Telegram & Gazette, Tool for justice, Editorial 6 June 2003 (“More recently the case of convicted rapist Benjamin LaGuer of Leominster illustrated how DNA evidence can debunk even the most persistent protestations of innocence.”); Sentinal & Enterprise, District attorney was relentless in his pursuit of justice, Political endorsement, Letter to the Editor 30 October 2002 by Robert J. Barry (“District Attorney John Conte has worked diligently and was not influenced by the press. He fought every motion on behalf of the commonwealth. Thank God!” Mr Barry is the victim’s son-in-law.); Bureau of Justice Statistics, Survey of DNA Crime Laboratories, 2001. National Institute of Justice, NCJ 191191, January 2002. http://www.ojp.usdoj.gov/bjs/pub/pdf/ sdnacl01.pdf; William C Thompson, Subjective interpretation, laboratory error and the value of DNA evidence: Three case studies, 96 Genetica 153 (1995); William-C Thompson, Accepting Lower Standards: The National Research Council’s Second Report on Forensic DNA Evidence. 37 Jurimetrics 405 (1997); William C. Thompson, Examiner Bias in Forensic RFLP Analysis, Scientific Testimony: An Online Journal, www. Scientific.org; D. Michael Risingger, Michael J Saks, William C Thompson & Robert Rosenthal, The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectations and Suggestion. 90 Cal.L.Rev. 1 (2001; John M. Butler, Forensic DNA typing: Biology and Technology Behind STR Markers (2001); William C Thompson, Simon Ford, Travis Doom, Michael Raymer & Dan E. Krane, Evaluating forensic DNA evidence: Essential elements of a competent defense review, National Association of Criminal Defense Lawyers, www.nacdl.org (April 2003); Telegram & Gazette, Editorial, Justice on hold/Unsolved crimes confound police, families 7 September 2006 (“It was stunning to see in last weekend’s Sunday Telegram the page filled with names and faces of the more than 90 people who were murdered or are missing from across Central Massachusetts since 1970.”); New York Post, Cuomo Slams Pirro: Rips DNA ‘blunder’ by Kenneth Lovett 22 September 2006 (Westchester district attorney ignores repeated request by Jeffrey Deskovic to have DNAevidence retested since 1997.); Chicago Tribune, Report: Inmate Wrongly Executed by Maurice Possley 9 December 2004; Austin Chronicle, Without Evidence: Executing Frances Newton 9 September 2005; JusticeDenied, New Evidence of Frances Newton’s Innocence Ignored by Courts And Texas Governor Summer 2005; Houston Chronicle, Did Texas execute an innocent man by Lise Olsen 20 November 2005; Was the wrong man executed? by Terry Ganey, St Louis Post-Dispatch 11 July 2005; Stanford Law Review, 8 Miscarriages of Justice in Potentially Capital Cases by Hugo Adam Bedau and Michael L. Radelet, November 1987, Vol. 40, pp 21-179.; The Virginian-Pilot, “Kangaroo court for Earl Washington” Editorial 1 May 2006; Boston Globe, Laboratories of Justice, Editorial 24 September 2006(“At the Massachusetts State Police crime lab, forensic scientists have backlogs of cases, inadequate bench space, and $35,000 salaries that recently led five of the state’s 32 crime lab chemists to seek work in other states...”); Worcester Telegram & Gazette, Paxton Man Nominated as Superior Judge, no byline 26 September 2006 (Assistant District Attorney James R Lemire of Paxton was chief of the drug, sexual assault and financial crime units.); Boston Globe, Appeal heard in ‘95 murder of prosecutor/Evidence, testimony faulty, SJC is told by John R. Ellement 11 November 2006 (Attorney John H. Cunha told five SJC justices that “some of the DNA evidence” that was used to convict Jeffrey L. Bly “was tainted by flawed laboratory and analytical procedures.” Assistant Attorney General Pamela Hunt told the court, “This was not a DNA case. The heart and soul of this case was the testimony of five witnesses.) Boston Herald, Judge Orders Entwistle DNA swab by Norman Miller 9 November 2006 (Accused double-murder suspect Neil Entwistle’s DNA was incorrectly extrapolated by taking DNA from his dead infant daughter and DNA from a water bottle located in Entwistle’s abandoned BMW at Logan Airport. Entwistle must submit a more reliable and direct sample from his buccal or cheek.); Boston Globe, Scientists unveil beginnings of Neanderthals’ DNA code by Gareth Cook 16 November 2006 (“This finally made the idea practical, because about 95 percent of the DNA is contamination from other organisms, according to Michael Egholm, vice president of molecular biology at 454 Life Sciences. They use computer analysis to put side all of the DNA contaminated by microbes and humans who have handled the fossil.”); See. Hugo Adam Bedau & Michael L. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” 40 Stan. L. Rev. 21 (1987)(Professors Bedau & Radelet produced evidence suggesting that 23 innocent people were executed in US during the 20th century.) Their methodology and conclusions have been criticized. See Stephen J Marksman & Paul G. Cassell, "Protection the Innocent: A Response to the Bedau & Radelet Study,” 41 Stan. L. Rev. 121 (1988); See also Michael L. Radelet & Hugo Adam Bedau, “The Execution of the Innocent,” 61 Law & Contemp. Prob. 105. 115 (1998); Boston Globe, DNA samples in Cape slaying to be returned by David Abel 22 November 2006 (DNA samples collected from hundreds of men to resolve a fashion writer’s murder are return following a conviction.); New York Post, “Wrong Man’ In Money/Law firm pays 900G” by Stefanie Cohen 21 November 2006 (Lee Long settled legal malpractice claim with former client, after Barry C. Scheck’s law firm agrees that it bungled Long’s compensation claims and rights against the state.); Peter J. Henning, “Prosecutorial Misconduct & Constitutional Remedies,” 77 Wash. U. L. Q. 713 (1999)(analysis of particular instances of prosecutorial misconduct, e.g., use of perjured testimony, undisclosed evidence, and destroyed evidence.);
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