Judge declares mistrial on final claim in Drumgold case

(Globe file photo)

Shawn Drumgold accused two Boston police detectives of violating his civil rights after he was wrongfully imprisoned for 15 years.

By Jonathan Saltzman, Globe Staff

A judge declared a mistrial this afternoon after a federal jury said it was hopelessly deadlocked over the sole surviving claim against Boston police by a man wrongfully imprisoned for 15 years for the murder of a 12-year-old girl.

US District Court Judge Nancy Gertner had urged the jurors today to persevere and try to reach a decision in the case of Shawn Drumgold, who sued two Boston Police detectives for allegedly violating his civil rights in the investigation of the 1988 fatal shooting of Darlene Tiffany Moore.

“If you cannot agree, it's your right to fail to agree,” Gertner said. “So we’ll ask you to go back and try one more time.”

After resuming deliberations this afternoon, the jury told the judge they were "hopelessly hung," and she declared a mistrial.

A week ago the same jury all but cleared the two retired detectives of violating Drumgold’s civil rights, rejecting 10 of his 11 claims. It rejected all allegations against retired detective Timothy Walsh. The judge allowed the case to continue, however, on one claim against Detective Timothy Callahan.

Today the jury was trying to determine whether Drumgold’s conviction was caused when Callahan did not disclose at the criminal trial that he gave an undetermined amount of cash to a witness. That witness, Ricky Evans, testified that he saw Drumgold near the Roxbury street corner where Moore was gunned down.

If the jury had decided that Callahan’s lack of disclosure caused the verdict, they would have had to determine if Drumgold should be awarded damages.

It was not immediately clear what will happen next. Gertner said from the bench that she is inclined to dismiss the 10 claims rejected by the jury and allow a retrial on the one remaining count.

Rosemary Scapicchio, Drumgold’s lead attorney, objected and said the defense would move for a full retrial. Scapicchio argued that the judge could not cherry-pick portions of a partial verdict. The city opposes a full retrial. Gertner did not issue a decision this afternoon.

Before the six-week trial started, the city's defense had cost taxpayers $1.23 million in legal fees and expenses, according to William F. Sinnott, the city's corporation counsel. That legal bill for the city is now well over $2 million, estimated Drumgold’s lead attorney, Rosemary Scapicchio.

Lawyers for the city presented evidence intended to suggest that Drumgold's conviction might have stemmed from an ineffective defense by his lawyer, Steven J. Rappaport, or that prosecutors might have been at fault for withholding evidence, not the police. Prosecutors have immunity in federal civil rights lawsuits.

Darlene Tiffany Moore was struck by two stray bullets as she sat on a mailbox on a Roxbury street corner talking to friends on the night of Aug. 19, 1988. Two gunmen wearing Halloween masks fired at a crowd in what police believed was a gang shooting that killed an innocent bystander.

Ten days later, the case seemed to have been solved when Drumgold, then 22, and a second man, Terrence Taylor, were charged with killing the girl. Drumgold was convicted the following year; Taylor was acquitted by the trial judge because no witness placed him at the scene.

But Suffolk prosecutors reopened the case in 2003 after several prosecution witnesses interviewed by the Globe recanted statements and testimony used to convict Drumgold. The witnesses said police had bullied them into providing incriminating evidence, and the trial judge threw out the conviction.

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