Jun 9, 2006

SJC will hear LaGuer appeal
Lawyer says evidence was withheld

 

By Matthew Bruun

 

BOSTON— Benjamin LaGuer will have another day in court.

The former Leominster man was sentenced to life in prison after being convicted of aggravated rape and other charges in connection with an assault in July 1983 on his 59-year-old neighbor at a Water Street apartment complex.

Mr. LaGuer, now 43 and an inmate at the Souza-Baranowski Correctional Center on the Lancaster-Shirley line, has maintained his innocence since his arrest. The victim in the case identified Mr. LaGuer in court as her attacker, and DNA tests performed several years ago failed to exonerate him.

 

He has been persistent in seeking a new trial, however, most recently arguing to the state Appeals Court that a potentially exculpatory fingerprint report unearthed 18 years after his arrest entitled him to a new trial.

The Appeals Court rejected his argument earlier this year, but this week the Supreme Judicial Court agreed to give Mr. LaGuer’s case another look. Court clerk Susan Mellen said the court receives 800 to 900 applications for further appellate review every year, of which the court agrees to hear about 4 percent.

Oral arguments will likely be scheduled for the fall, Ms. Mellen said yesterday.

 

“We’re obviously delighted the SJC has seen fit to consider our argument and hopefully we can persuade them that Ben LaGuer’s trial was fundamentally flawed,” defense lawyer James C. Rehnquist said yesterday.

The potentially exculpatory fingerprint report is central to the appeal, which gives little discussion to the DNA issue.

“The DNA issue is really irrelevant to whether Ben LaGuer had a fair trial,” Mr. Rehnquist said.

Mr. LaGuer and his supporters have contacted DNA experts to bolster their claims that contamination tainted the results of the analysis.

The fingerprint report, discovered at the end of 2001 while DNA analysis was already in progress, showed that four complete fingerprints were taken from the base of a telephone in the victim’s apartment. None of the prints matched Mr. LaGuer, according to the report, and the investigating trooper indicated he told the Leominster police detective about his findings.

At trial, however, the detective — now deceased — testified that only one partial fingerprint was recovered from the crime scene.

A telephone cord was used to bind the victim’s hands during the assault, hence the base of the telephone was tested for prints.

The back of the fingerprint report, along with the actual fingerprints, has never been found.

Superior Court Judge Timothy S. Hillman, who has since been appointed to the federal bench, denied the significance of the fingerprint report, ruling in late 2004 there was no proof the fingerprints collected from the telephone were those of the victim’s attacker. He also said the report would not have swayed jurors, who convicted Mr. LaGuer in 1984 without any physical evidence.

The Appeals Court upheld Judge Hillman’s ruling in March.

“First, the fingerprint report is cumulative of other evidence admitted at trial that established, indisputably, that there was an absence of physical evidence at the scene linking this defendant to the crimes,” that ruling said.

“Because the fingerprint report refers to four fingerprints, the additional non-matching fingerprints arguably bolster the point that the defendant’s fingerprints were not identified on the telephone,” the ruling continued.

“Failure to disclose the fingerprint report did not handicap the defendant’s ability to argue to the jury that the victim had misidentified him, a claim he made throughout the trial from several different angles,” the Appeals Court said.

In their subsequent brief seeking further appellate review, Mr. LaGuer’s lawyers argue the Appeals Court erred.

They said Mr. LaGuer should not be required to demonstrate that the lost fingerprint evidence was exculpatory rather than potentially exculpatory, and said the court was wrong to conclude that the suppressed fingerprint evidence was cumulative of the information relayed to Mr. LaGuer’s lawyer before trial.

“Mr. LaGuer submits that the Appeals Court’s misapplication of fundamental constitutional principles has resulted in the affirmance of an improper conviction, and that substantial reasons affecting the public interest and the interests of justice necessitate further review,” the brief said.

The argument refers to a 1988 case in which the court found that “where there is no physical evidence linking the defendant to the crime, and the Commonwealth loses or destroys potentially exculpatory evidence which could have produced evidence favorable to the defendant’s cause, a new trial is warranted.”

The nature of the report was also misstated in the Appeals Court’s ruling, according to Mr. LaGuer’s lawyers.

“The record reflects that neither the jury, nor Mr. LaGuer’s trial counsel, were ever informed that any fingerprints (never mind four fingerprints) lifted from the base of the telephone definitively did not match Mr. LaGuer’s fingerprints,” the argument said. “Thus, the information that the Commonwealth relayed to Mr. LaGuer’s trial counsel, and presented to the jury, was different in kind from that contained in the suppressed fingerprint report, and thus was not cumulative of that presented at trial.”

Worcester District Attorney John J. Conte’s office did not file any response to Mr. LaGuer’s bid for further appellate review, and Mr. Conte did not return a call yesterday.