Wrongful conviction lawsuit can proceed

A federal judge refused yesterday to dismiss a civil rights suit brought against the city of Lowell and newly named Boston Police Commissioner Edward F. Davis by a man who spent 19 years in prison on a rape conviction before he was exonerated in 2003 by DNA testing.

After a lengthy hearing, US District Judge Richard G. Stearns said he was "not attempting to pre judge" the outcome of the case.

However, he found that Dennis Maher has a right to pursue his claim that he was wrongfully convicted of raping a woman and sexually assaulting another in Lowell in 1983, in part, he contends, because Davis, then a Lowell police officer, and his partner altered evidence and manipulated identification line ups.

"I'm trying to pick up what I lost, and I lost a lot," said Maher, now 46, of Tewksbury, who sat through the hearing while his wife walked the courthouse hallways with a stroller carrying the couple's two children, a 9-month-old daughter and a 22-month-old son.

Davis, 50, serves as Lowell police superintendent and is to take over as Boston's police commissioner next month.

In court documents, Maher's lawyer, Robert Feldman, alleges that Davis and another officer, Garrett Sheehan, falsified a police report, misstating the time of the Lowell rape as part of a plan to undermine Maher's alibi.

The suit also contends that after one of the victims identified another man as her attacker during a courthouse line up, Davis and Sheehan placed a chair in front of only Maher during another line up to help the second victim identify him.

Lawyers for Davis, the city of Lowell, and the other officer had filed a motion to dismiss the suit, saying it was based on "bald assertions and unsupportable conclusions."

Maher was an Army sergeant assigned to Fort Devens, with no prior criminal record, when Davis stopped him Nov. 17, 1983, because he was wearing a red-hooded sweatshirt and walking in the same area where a suspect in similar clothing had sexually assaulted a woman earlier.

Davis and Sheehan , now retired, charged Maher with two attacks after the victim of the assault and another woman who had been raped in the same area a day earlier identified Maher from a photo array as their attacker.

Maher was convicted of both attacks, and of another rape in Ayer in August 1983 after that woman also identified him as her attacker. He was freed from prison in April 2003 after DNA testing proved that he was not the rapist.

His suit also names an Ayer police officer and the town of Ayer. Yesterday the judge said he is considering dismissing those claims.

Brian W. Leahey, assistant solicitor for Lowell, argued yesterday that the issues raised in Maher's suit had been considered and rejected by either the judge who presided over his 1984 trial or the state appeals court that upheld his conviction.

The suit also names a state chemist, Mark T. Grant, whose report, presented to defense lawyers, indicated that no semen was found on the underwear of the Lowell rape victim.

In 2001, a law student volunteering for the New England Innocence Project discovered that there was semen on the victim's underpants, and subsequent DNA testing led to Maher's exoneration and release in April 2003.