Commonwealth v. Benjamin LaGuer

TIMELINE

1978 LaGuer, born in New York City 1963, raised in the Bronx and Puerto Rico, moved to Leominster for high school and to live with his sister. He had a variety of jobs. His father, a retired road crew worker, merchant marine and a veteran, was also living in Leominster.

1980 (Saturday October 11) LaGuer and several friends (including Jose Algarin, now a Leominster Police Officer) are stopped and asked about a burglary. Police took their names and LaGuer thought nothing more of it. Unbeknownst to LaGuer, until April 2001 (see below), this information was added to a secret file the police kept on LaGuer.

1980 (November) LaGuer joins U.S. Army, serving in Fort Bragg and Germany.

1983

(Friday June 24) Gets early discharge under honorable conditions stemming from minor drug offence. Father has apartment 101 at 97 Waterways. Father goes to Puerto Rico leaving apartment to LaGuer while gone. LaGuer plans to study computers at Fitchburg State.

(Tuesday July 12) LaGuer spent day visiting family and friends then went to the Plymouth Café (now J.C. Fenwick’s). Returns to father’s apartment at about 1 a.m.

(Wednesday July 13, 5 a.m.) A neighbor, hearing noise, calls police who discover his 59-year-old neighbor in apartment 102 (next to LaGuer’s). Her ankles and wrists were bound by hairdryer cord and wire from a trimline telephone. She says she was raped and is transported to the hospital. A tenant tells Lt. Hebert that she saw two possibly suspect males outside her window. Detective Ronald Carignan takes over investigation. Building manager Raymond Cochran names LaGuer as possible suspect.

(Thursday July 14) Carignan obtains search warrant based on his (later contradicted) claim that the victim told him that she had seen her assailant entering LaGuer’s apartment. Warrant authorizes a search for items stolen from victim and a sock with yellow and black trim to match one found at crime scene. LaGuer was not home, so building manager, Cochran, opens apartment. Carignan noted socks in apartment similar to sock found at crime but different in color. Warrant return (witnessed by partner Keith LaPrade) states “nothing” was seized. Carignan repeats this claim in report and under oath at trial.

(Friday July 15) Cochran calls police station to say LaGuer was home. LaGuer voluntarily goes to police station and is told fingerprint evidence was found and that victim could ID a suspect. LaGuer voluntarily submits to being photographed and to fingerprinting. Carignan leaves to drop LaGuer’s fingerprints with Trooper Arthur Martin at the State Police barracks and to conduct a hospital-room photo line-up. (Reports conflict as to whether Carignan showed the victim, a schizophrenic who was under sedation and in residual shock, one photo or an array of 8.) Carignan returns to police station. LaGuer is placed under arrest, taken to courtroom upstairs for arraignment, and transferred to county jail.

(Saturday July 16) Trooper Martin determines LaGuer’s fingerprints DO NOT match a set of four prints found on the base of the trimline phone, the cord of which was used to bind victim’s wrists. He communicates this to Carignan but neither this information nor his report is shared with defense until Nov. 2001 in spite of repeated requests.

(Wednesday July 20) Carignan delivers 14 items from victim’s apartment (garments, bloody tissues, sock with yellow and black trim) to State Police Crime lab along with a rape kit of swabs, smears and pubic hair clippings, which may have sat in the trunk of Carignan’s cruiser since it was collected a week earlier. Paul J. Malone signs for these articles.

(Tuesday August 2) Carignan told Grand Jury that the victim accused LaGuer by name (she vigorously denies saying this later in her trial testimony) and that the crime occurred in LaGuer’s apartment (it did not).

(Wednesday August 3) Carignan brings three more items to lab including “underclothes – suspect.” LaGuer identified on form as “suspect.” Mark T. Grant signs for them.

(August) LaGuer signs his college savings including his GI Bill over to attorney Peter Ettenberg. Private investigators Robert Hammack and Nancy Martinez identify Jose Orlando Gomez as “likelier suspect.” Gomez's mother had lived in the building. He had a history of sexual misconduct (observed at Worcester State Hospital). He resembles LaGuer. Investigators note possible racist motives for Cochran (building manager) to finger LaGuer. They identify several alibi witnesses. Carignan never sought out Gomez or anyone who knew anything about him.

(Friday October 21) In court hearing with ADA James Lemire and attorney Peter Ettenberg present, LaGuer was ordered to provide saliva to determine his blood type.

(Monday October 24) Referring to a statement at the 10/21/83 hearing that pubic hair clippings contained evidence of sperm, Ettenberg writes to Lemire asking for access to this evidence for independent examination. There is no record of a response. Ettenberg meets Carignan at the House of Corrections. Required to spit on a paper towel, LaGuer provides a sample tainted with saliva of his cellmate, also an Ettenberg client. Carignan delivers sample to Grant.

(October 24 – November 3) Lab notes show Grant testing “interior crotch” of “suspect” underwear (8/3/83) for acid phosphatase. No such test on victim’s underwear (7/26/83).

(Thursday November 3) Forensic report states, “testing of the pubic hair revealed the presence of sperm cells.” Grant is unable to  determine a blood type on any blood except for a Type B on tissue paper found on couch (see /8/15/2001). Grant not called to testify at trial. The (tainted) saliva LaGuer supplied is deemed “inconclusive” for blood type.

(November) LaGuer’s sisters unable to raise more funds. Ettenberg calls off private investigators and encourages LaGuer to take a plea offer of two years in prison.

(December 1983 – January 1984) Ettenberg’s demands for fingerprints are ignored.

1984 (January – February) All-white male-jury convicts LaGuer solely on victim’s courtroom ID. Jury not told she has a history of schizophrenia and domestic abuse. LaGuer’s attorney fingers Gomez as culprit. LaGuer gets life sentence with parole eligibility in 1998.

1984 (Thursday June 21) Socks similar to those Carignan reported seeing in LaGuer’s apartment, bearing a tag with this date, appear in subsequent photos and inventories.

1985 (Wednesday September 18) In court, Carignan admits to destroying his original extemporaneous investigative notes, substituting them with police reports authored weeks after LaGuer's arrest. 

1989 (Thursday April 27) ADA Lemire tells court tube sock is missing, but that a new analysis is not probative. Judge Mulkern responds, as quoted in the Boston Globe, "If the assailant had blood type 'O' and Mr. La Guer has blood type 'B', don't you think that presents a problem to me?"

1989 (Thursday May 11) On day of scheduled hearing on a motion for a new trial attorney Robert Terk finds the missing box of evidence with socks at the Leominster Police.

1989 (Wednesday May 17) CPAC Trooper William Kokocinski retrieves box of evidence from Leominster Police. Lt. Francis Ptak makes inventory listing three (3) pairs of underwear. (Inventory is withheld from LaGuer until April 2001.) Kokocinski delivers sock with yellow and black trim to lab. He brings remaining articles to district attorney’s office.

1989 (Monday May 22) In court, Lemire presents only two (2) panties and no male underwear. Without Ptak’s inventory LaGuer cannot question this discrepancy. Grant testifies LaGuer’s blood, determined to be Type B, links LaGuer to the blood that Grant identified as B in his 11/3/83 report. The Court orders box sealed. (See 8/15/2001)

1989 (Friday June 2) Judge Mulkern denies motion for a new trial because the bloody “B Type” tissues on the victim’s couch links LaGuer to the crime. (see 8/15/2001)

1989 (Wednesday July 12) Juror William Nowick quoted as saying a law enforcement officer told him LaGuer innocent and that police would trace the culprit through his mother.

1991 (Tuesday May 14) Supreme Judicial Court affirms LaGuer’s conviction, in part, because of Grant’s 10/3/83 report identifying “B-Type bloodstains.” (see 8/15/2001)

1991 (November) LaGuer receives information that Jose Gomez allegedly twice told a local bartender that he committed the crime for which LaGuer stands convicted.

1994 (May) LaGuer admits in Esquire Magazine to providing tainted saliva on 10/24/83.

1996 (Friday November 8) Attorney Oliver Mitchell files request for DNA analysis.

1996 (Wednesday November 27) Worcester Superior Court Judge Herbert F. Travers writes in the margin of attorney Mitchell’s request, “Denied without a hearing.”

1998 (Thursday May 21) District Attorney Conte summons his three top aides including ADA Leon Zitowitz in anticipation of upcoming June 29 parole hearing.

1998 (Monday May 25) Jose Gomez charged with rape and assault & battery of a woman in Fitchburg. His brother, Efrain Agosto, posts his bail.

1998 (Thursday May 28) ADA Zitowitz gets LaGuer’s Leominster Police file.

1998 (Wednesday July 8) ADA Sandra Wysocki-Capplis writes to the Leominster PD requesting the location of the rape kit. Two days later Lt. Michele Pellecchia informs her that all the articles were given to Trooper Kokocinski on 5/17/89.

1999 (Tuesday March 2) Gomez violates restraining order involving 5/25/98 victim.

1999 (Tuesday June 8) ADA Kathleen DelloStritto drops rape charge against Gomez in plea bargain under which he is to serve 59 days.

1999 (Wednesday September 2) LaGuer lawyers find evidence with seal on box broken.

1999 (Monday December 27) Attorney (now Justice) Robert Cordy asks District Attorney John Conte in writing to set up a mutually agreed upon DNA testing protocol.

2000 (Friday January 14) Conte responds by attacking Cordy’s integrity, claiming the defense may have tampered with the evidence on 9/2/99.

2000 (Tuesday September 5) Cellmark Diagnostics says samples contain insufficient male DNA for division. LaGuer’s lawyers litigate to concentrate all testing in Ed Blake’s lab.

2001 (Tuesday April 3) Through Freedom of Information Act, LaGuer obtains his Leominster Police file. It reveals for the first time that police kept a secret file on him with incorrect information from 1980; Internal prosecution copy of Grant’s 11/3/83 forensic report on which someone hand wrote “also Benjie’s underwear”; Ptak’s inventories showing that a third underwear vanished between 5/17/89 and 5/22/89; Conte’s 5/21/98 memo summoning his top aides; Wysocki-Capplis’ 7/8/98 letter in search of rape kit and Pellecchia’s response.

2001 (Wednesday April 25) Conte issues “Setting the Record Straight” press release with demonstrably false account of why Wysocki-Capplis was seeking rape kit on 5/8/98.

2001 (Wednesday August 15) DNA in blood on tissue paper from couch reveals that Grant’s 11/3/83 report and 5/22/89 testimony were incorrect regarding blood type. This was the basis of Judge Mulkern’s 6/2/89 denial of LaGuer’s motion and the SJC’s 5/14/91 review. The bloodstain produced a genotype that perfectly matches the victim’s DNA profile. The victim's blood type was known to be 'O'. Grant had reported the same blood to be 'B', the same as LaGuer's.

2001 (November) A 7/16/83 report shows that four fingerprints lifted from base of beige trimline phone, the cord of which was used to bind victim, didn’t match fingerprints LaGuer voluntarily gave police on 7/15/83. Commonwealth has yet to release the back page of the report or the prints for lawyers to compare with Gomez.

2002 (Wednesday January 9) ADA Sandra Hautanen tells court parts of the district attorney’s internal files on LaGuer “aren’t there anymore.”

2002 (Monday February 4) Ed Blake of Forensic Science Associates derives male DNA profile from miniscule amount of genetic material after pooling items handled by Grant at the time he was inspecting “interior crotch” of LaGuer’s underwear in Oct. – Nov. 1983.

2002 (Thursday March 21) Blake determines miniscule amount of male DNA in pooled rape kit items matches LaGuer. In spite of having performed a “blind” test, Blake makes inflammatory and ungrounded statements to the press about his results.

2002 (Friday September 20) Judge Timothy Hillman orders preservation of documents.

2003 (Sunday June 8) DNA expert Lawrence Kobilinsky tells Worcester Telegram & Gazette that the chain of custody raises serious issues.

2004  (Wednesday February 11) James C. Rehnquist files Motion for New Trial citing exculpatory 7/16/83 fingerprint report released Nov. 2001. The motion names Gomez, contending this report would have been key to LaGuer’s defense at 1984 trial. The motion can be downloaded from www.BenLaGuer.com.

2004 (Sunday February 15) DNA expert Tony Frudakis tells Worcester T&G the quantity of LaGuer’s DNA found is consistent with contamination.

2004 (Thursday February 19) Worcester Superior Court Judge John S. McCann orders District Attorney John J. Conte to respond to LaGuer’s 2/11/04 motion within 90 days.

2004 (Wednesday May 19) Worcester County District Attorney John Conte responds, opposing the motion to dismiss the indictments or for a new trial.

2004 (Friday July 16) Worcester District Attorney John J. Conte elects to not respond to Rehnquist's rebuttal.

2004 (Wednesday September 22) Worcester Superior Court Judge Timothy Hillman denies Rehnquist's motion without a hearing.

2004 (Monday October 4) Attorney James C. Rehnquist files a notice of intent to seek a reevaluation of Judge Hillman's decision.