Notes From Dissident Ben LaGuer, Speaking About Evidence that may Afford him a New Trial

[JohnHosty]

By Benjamin LaGuer
7-23-07

Twenty three years in prison and still searching for justice is literally the story of my life. I have never stopped making the case for my innocence since a jury found me guilty in 1984 of sexually assaulting a neighbor. There was a rush to judgment and I became the victim of mistaken identity. Support for these claims may finally be at hand.

According to Annie Demartino, a Fitchburg City Councilwoman and former caretaker of the accuser, this neighbor was a severely ill paranoid schizophrenic, de-institutionalized, mental patient. For months before the trial, and for years afterwards, Demartino says, whenever she took the accuser out in public “Everybody she saw who was either Spanish or black, she would say, ‘that’s who did it, that’s who did it,’ and of course it wasn’t, because basically they were just people in the street.” (I was the only colored person in the courtroom in 1984, when the victim was asked to point out her assailant.) But an even more cynical case is emerging.

My lawyers are weighing a ninth motion for a new trial based on evidence that the 1984 trial prosecutor James R. Lemire, currently a superior court judge, lied about the mental history of my accuser. He also lied to the court about a search warrant that was issued for my apartment and about the fruits of that search. (In October 2006 Peter Vickery, a member of the Governor’s Council, voted against Lemire’s judgeship because in his view “the LaGuer case cast a long shadow.”)

In the winter of 2000, after I had raised tens of thousands of dollars in order to have a DNA test to scientifically prove my innocence, Judge Timothy S. Hillman was given the responsibility of overseeing this test. Hillman, an ex-lawyer for my accuser’s family, should have stepped aside from my case on conflict of interest, but he did not. Once the DNA test was returned, indicating that my DNA had been found within the submitted evidence, Hillman did not ask why the State Police had underclothes taken from my home in July of 1983, which had never been authorized for seizure under the search warrant. (As the lawyer to the accuser’s family, Hillman would not have exposed the police to new criticism.) Clearly, in order for the DNA test to be accurate, my reference DNA sample was supposed to be matched against actual crime scene DNA samples; not DNA collected from articles illegally taken from my home.

When I recently read in the paper that the state’s chief medical examiner recently released the wrong body for burial that its office had only had for ten days, I began to think that a human error of mislabeling 18-year-old samples was not that far fetched a story.

But journalists, after hearing that my DNA test was positive, who would usually double-check the name of a cat that had been rescued from a tree for accuracy, bolted without even a note of skepticism.

Although a Worcester County prosecutor argued before the SJC last January 4th that my 2002 DNA test results made any new trial an academic exercise, her new boss, District Attorney Joseph Early Jr. told a Telegram columnist six days later, “ I am concerned about the chain of custody,” referring to my case. However, to the best of my knowledge, DA Early has not yet ordered a forensic audit to establish whether my DNA test was based on legitimate and properly handled samples.

But with the State Police crime lab director having resigned, and an independent report identifying 16,000 neglected DNA case, as well, as the State Inspector General auditing the crime lab, the need for a forensic audit of the evidence used in my DNA test has never been more compelling.

Despite Governor Deval Patrick’s statement that ‘justice has been served,” a slogan that first appeared during the context of his campaign, he has now ordered the state police to review the DNA test. This is possibly based on the analyses by six national experts who have now publicly challenged the DNA test.

In addition, the federal auditor who identified numerous deficiencies with the state police crime lab has written me a letter “The types of matter you raise in your letter are more appropriately considered by the OIG (Office of Inspector General) Investigations Division. Consequently, I have forwarded your letter and its enclosures to the appropriate agent in charge for his evaluation. “

In another recent letter to me, an aide to Public Safety Chief Kevin Burke, acknowledging my request to have the state police crime lab conduct a forensic audit of the case, said, “Please be assured that EOPS is reviewing this matter. Once all of the facts surrounding this issue are determined, we will work toward a reasonable and just solution.”.

This past March, the Supreme Judicial Court refused to grant me a new trial;
The SJC concluded that Lemire did not prejudice the 1984 trial defense when he withheld crime scene fingerprints. The SJC reasoned that the withheld report only reconfirmed that no physical evidence linked me to the crime; But could those fingerprints have matched a known sex offender whom the SJC identified by name, who had also lived in the building?

As readers know, my case has been widely cited as a factor in the demise of Kerry Healey’s 2006 gubernatorial bid. I sense this all-Republican appointed SJC may have been biased, as if I had been responsible for Mrs. Healey setting her own campaign ablaze; for her running that controversial parking garage TV spot.

The odds of a criminal defendant obtaining relief from the SJC, even on bedrock constitutional asserted violations, have been slim to nil in recent years. There are, however, notable exceptions: When a white Harvard law student killed an unarmed young Latino, smaller than him, the SJC granted him relief after his parents, both lawyers, exercised the benefits of their affluence. When a white British nanny shook an interracial infant to death, the SJC granted her relief, in time for her to attend laws school back home. (The recent Duke Lacrosse rape case shows how swiftly the legal protective systems gear-up for white injustice, compared to cases where race and class are damning factors.) When a black person walks into a Massachusetts Courthouse, said SJC Chief Justice Paul L. Liacos, “the likelihood is that they are not going to get equal justice.” (Boston Herald 9/22/94)

When my case appeared before the SJC, I am sure my connection to the governor was not far off their minds. They even scheduled oral arguments for within hours of Governor Patrick’s inaugural speech. Two months later, a unanimous SJC denied me relief (if only a new trial), despite a history of eight previous motions citing a litany of new discoveries and remarking that “the Commonwealth could not place the defendant in the victim’s apartment by means of any evidence, including fingerprints or other physical evidence.”

In Virginia, Earl Washington was finally exonerated. But not before a state forensic audit found that aides to then Governor Douglas Wilder pressured the State Police DNA lab not to clear Washington, a black man on death row, convicted of raping and murdering a white woman. Douglas’ aides did not want the first black governor in the nation to be viewed as helping a black rapist/murderer. If state officials continue to remain silent, then what they are doing against me, is no different than what was perpetrated against Earl Washington.

In civics, we learn that in America, justice is blind. In 2001, one juror in my 1984 trial recalled, “The life sentence showed the judge agreed with the verdict. We saw an animal, and he saw the same animal.” In 1989, another juror from my 1984 trial said, in an affidavit referring to another juror, “One Joseph Nowick stated the godamned spic is guilty just sitting here; look at him. Why bother having a trial?” The jury foreman told the State Police later, “Racism was brought up, and I asked the jury body to knock it off “

I am beginning to wonder if our American judicial blindness is a kind of blind indifference for those of us who appear different. However, I shall continue to fight against this injustice, no matter how many stand to shadow the truth of my life and divine purpose.

Ben LaGuer is serving a life term at the North Central Corrections Facility in Gardener, Massachusetts. For more information, please visit www.BenLaGuer.com or email [e-mail]