DA urges Drumgold be freed

In a 30-page court filing late yesterday, Suffolk's chief homicide prosecutor David E. Meier said that, "in the interests of justice," Drumgold's 1989 first-degree murder conviction should be overturned. Meier cited newly discovered evidence, the failure of prosecutors to disclose some exculpatory evidence, and possible official wrongdoing during the original investigation and prosecution.

Superior Court Judge Barbara J. Rouse will rule on the prosecutor's motion as early as Thursday, the judge's clerk said last night.

Meier, in his filing in Suffolk Superior Court, indicated that if the judge decides to set aside the conviction, Drumgold will be set free. The government will not put him through another trial. It is time, he said, "to bring some sense of finality to these proceedings."

These fast-paced legal developments -- the dramatic climax of Drumgold's long fight for freedom -- come six months after a Globe investigation uncovered new evidence casting doubt on the murder conviction. Drumgold has always insisted he was not at the Roxbury crime scene when Moore was shot on Aug. 19, 1988. But until this year his repeated legal efforts to reopen the case were rebuffed.

"This is a great day for Shawn and his family," Rosemary Scapicchio, Drumgold's longtime appellate attorney, said yesterday. She said she had spoken to Drumgold in prison by telephone and "he was ecstatic."

"His quote was, `Finally, justice was done,' " she said.

Drumgold's 14-year-old daughter Kiara, reached by telephone last night, said: "I'm so excited. It feels like a dream."

Meier, a veteran homicide prosecutor, headed up the reexamination of the case ordered in May by Suffolk District Attorney Daniel F. Conley after the Globe report. The filing Meier drafted for Conley carefully avoided drawing conclusions about Drumgold's "factual guilt or innocence," but was adamant that Drumgold was convicted after an unfair trial.

Prosecutors, wrote Meier, withheld from Drumgold and his trial attorney information about the preferential treatment the government gave a key prosecution witness named Ricky Evans, including free meals and housing "prior to and while testifying."

"The failure of the Commonwealth to disclose such exculpatory evidence arguably prejudiced the defendant by depriving him of his constitutional right to cross-examine Mr. Evans."

Meier told Rouse he and investigators reviewed the entire history of the case, as well as the testimony of 22 witnesses and the 33 exhibits presented during a six-day evidentiary hearing held last summer before the judge.

"The testimony and exhibits introduced at the motion hearing in 2003 lead to one inescapable conclusion: that justice may not have been done," Meier wrote. "Evidence introduced at the hearing did not exonerate the defendant; it did establish he did not receive a fair trial."

Late yesterday Conley spokesman David Procopio declined to comment.

The 1988 murder of Tiffany Moore became an instant symbol of the violent street gangs and soaring crime rates plaguing the city in the late 1980s. She was gunned down as she sat atop a mailbox at the corner of Humboldt Avenue and Homestead Street in Roxbury when two masked gunmen ran up and began firing into a gathering of teenagers. The shooters missed their apparent targets, two rival gang members, and inadvertently killed Moore.

The girl's death shocked a city already on edge about escalating gang violence. Some even called for the deployment of the National Guard. Boston police launched a massive investigation to hunt down the girl's killers.

Despite other leads, police focused almost from the start on Drumgold and his friend, Terrance "Lug" Taylor. Both were known drug dealers, and police had heard talk on the street of a possible beef they were having with another drug dealer. Ten days after Moore's death, the pair was charged with first-degree murder.

At their trial 14 months later, only Drumgold, then 22, was convicted. No witness had placed Taylor at the crime scene, and the trial judge, Charles R. Alberti, dismissed the murder charge against him.

Drumgold's case went to the jury because two young women -- Mary Alexander and a teenager named Tracie Peaks -- testified they saw Drumgold walking down Homestead Street right after gunshots were fired.

In its investigation, the Globe learned that Mary Alexander, who was 22, was suffering from a fatal brain cancer at the time she testified about seeing Drumgold leaving the murder scene. The cancer, which can affect memory and perception, was not disclosed either to the defense or the jury.

The Globe also found other prosecution witnesses who recanted sworn testimony and statements used to convict Drumgold, saying that investigators bullied them into providing incriminating evidence. Other neighborhood residents said they were too frightened to testify in 1989, but were willing now to come forward to support Drumgold's alibi, that he was on Sonoma Street, two blocks away, when Moore was shot.

During last summer's evidentiary hearing before Rouse, they and other witnesses testified under oath. Peaks took the witness stand and tearfully recanted her 1989 trial testimony, saying that police had pressured her into lying about seeing Drumgold.

Alexander's mother, Lola, testified about the cancer that eventually killed her daughter. She said Boston police knew about the illness and harassed her daughter into testifying.

The hearing's most explosive testimony, however, came from former prosecution witness Ricky Evans. At the 1989 trial Evans testified that on the night of Moore's killing he had run into Drumgold and Taylor near the crime scene both before and after the shooting and that they were armed and acting "strange."

In its report, the Globe revealed that five days after Drumgold's conviction a number of criminal charges pending against Evans were dropped outright or resolved without consequence to Evans.

During last summer's hearing, Evans told Rouse that his 1989 trial testimony was all lies. Evans said he was homeless in 1989 when police took him off the streets and put him up in a hotel in Dorchester. "They started giving me all these things, a place to live, money in my pocket," testified Evans. He said police were "feeding me things so I could lie in court."

In yesterday's filing, Meier dismissed Evans's claims of police coercion, but condemned the Commonwealth's failure at trial to disclose information about the free housing and meals and the help police offered Evans in disposing of his own criminal cases.

Meier told Rouse it was beyond the scope of his review to judge whether "the Commonwealth's failure to disclose such evidence . . . was knowing and intentional, negligent, inadvertent, or otherwise."

Meier also focused on Alexander's cancer and its possible impact on her credibility as the prosecution's star witness.

While he rejected Lola Alexander's recent assertions that investigators knew about her daughter's fatal condition prior to trial, Meier said the recent surfacing of evidence "regarding Ms. Alexander's health is nonetheless material, credible, and -- in the interests of justice -- worthy of careful consideration."

Meier, in the filing, said he was unpersuaded by the recantations by Peaks and others. And he said the testimony of two new witnesses who came forward this year to support Drumgold's alibi did not constitute "new evidence" within the meaning of legal rules concerning motions for a new trial. Steven Rappaport, Drumgold's trial attorney, was aware of at least one of the witnesses, wrote Meier.