SJC expresses skepticism about LaGuer appeal

A lawyer for convicted rapist Benjamin LaGuer uttered just a single sentence before being cut off by a skeptical Supreme Judicial Court yesterday as he argued for a new trial in a proceeding that returned the spotlight to a case that dogged Deval Patrick's successful gubernatorial run.

The 40-minute oral arguments focused on an 18-year-old State Police report that surfaced in November 2001 and showed that investigators recovered four fingerprints from the base of a telephone, the cord of which was used to bind a 59-year-old rape victim in her Leominster apartment complex.

None of the prints matched LaGuer's, said his lawyer, James C. Rehnquist, who argued that the evidence might have swayed the Worcester County jury if it had heard it.

LaGuer was convicted in 1984 of repeatedly raping and sodomizing the woman over an eight-hour period. Lieutenant Governor Kerry Healey pilloried Patrick during their bitterly contested race for twice writing the state Parole Board on LaGuer's behalf over the past decade and for donating $5,000 to help pay for DNA testing. Patrick was inaugurated yesterday, just hours after the arguments.

Partway through the proceeding, Justice John M. Greaney seized on the results of a DNA test completed in 2002. He sharply asked Rehnquist what the point was of haggling over fingerprints given that the DNA analysis -- which LaGuer had hoped would clear him -- linked him to the rape.

"Are we just having an academic discussion today, because at a trial, that DNA evidence would sink him," said Greaney, who seemed skeptical of LaGuer's appeal, as did justices Judith A. Cowin and Martha B. Sosman.

Rehnquist said it is impossible to say what LaGuer's trial lawyer, Peter L. Ettenberg, might have done with the fingerprint evidence. He also disputed statements by Cowin that the evidence would not have made a difference because, the justice said, LaGuer's trial lawyer already knew that a single print found at the crime scene could not be traced to LaGuer.

At least two of the six justices seemed sympathetic to Rehnquist's arguments. When an almost exasperated Greaney brought up the DNA results again and asked why the court should scrutinize the recently discovered fingerprints, Justice Roderick L. Ireland said, "Even guilty people are entitled to fair trials, aren't they?"

LaGuer and his advocates, who have included John Silber, former Boston University president, have questioned the validity of the DNA test, which has never been examined by a court. Several forensic specialists contacted by LaGuer say the DNA evidence may have been tainted. LaGuer contends that investigators mixed items from the victim's apartment with underwear seized from his apartment next door.

Worcester Assistant District Attorney Sandra L. Hautanen, however, told the SJC that the scientific odds that the DNA belonged to someone other than LaGuer were 100 million to 1.

The court never addressed contentions by LaGuer's advocates that the DNA evidence was contaminated.

LaGuer, who spoke with Rehnquist by phone after the arguments, told the Globe that he remained hopeful about his prospects for a new trial despite the skepticism the justices displayed.

"This is a 23-year-old conviction, and we expected this conviction to be reversed based on the tough questions, not the easy ones," he said. "I'm going to be optimistic till the day that I die that I will one day get a fair trial."

LaGuer's half sister, Judy Irizarry, who attended the arguments, was less hopeful at the courthouse after the proceeding.

"I think they are going to deny him," she said. "I think it would be an injustice."

The son-in-law of the victim, who has since died, said LaGuer's appeal had "no merit."

"We've been listening to arguments for 23 years," said Bob Barry of Worcester. "To me, he has wasted 23 years in prison playing the media game."

Barry also said the new governor had insulted crime victims throughout the state by supporting LaGuer.

Six justices of the seven-member court heard the arguments after Justice Robert J. Cordy recused himself. Cordy, a former private attorney, is among the lawyers who have represented LaGuer in earlier motions for a new trial.

Afterward, Tim Connolly, a spokesman for the new Worcester district attorney, Joseph D. Early Jr., said his boss was pleased by the questions the court asked.

"The new district attorney shares the opinion of the previous district attorney that justice was done in this case and that the right person was convicted," Connolly said.