City spends heavily to fight suit

Trial next month in civil rights case

Shawn Drumgold, found guilty in 1989 of murdering a 12-year-old girl, saw his conviction overturned in 2003. (JOHN TLUMACKI/BOSTON GLOBE FILE PHOTO/2003)

The city of Boston has spent more than $1 million on outside lawyers to fight a lawsuit filed by a man who spent 15 years in prison before prosecutors concluded he was wrongly convicted in one of the most notorious murders in Boston in the past quarter century.

The civil rights suit by Shawn Drumgold isn't scheduled to go to trial until Feb. 25 in US District Court in Boston, but the city has already paid $1.14 million to five outside lawyers and a private investigator, according to figures obtained by the Globe under a public records request.

That is about 10 times the total fees paid to outside lawyers by the city in two other wrongful conviction lawsuits that ended with settlements in 2006.

Peter Neufeld, co-founder of the Innocence Project, a nonprofit legal clinic whose use of DNA evidence has led to 212 exonerations across the country, said he has helped a dozen former prisoners bring civil suits after they were cleared outright of their crimes. In almost every case, he said, police departments contested the suits.

"They do defend these cases even when they admit that someone's innocent," he said. "That is not that unusual. What's unusual in [this] case is that they hired outside counsel, and if they've spent $1.1 million, they're defending the position very vigorously."

Prosecutors and Boston police have never publicly exonerated Drumgold, and no one else has ever been charged with the killing.

Drumgold was convicted of first-degree murder in 1989 in the death of 12-year-old Darlene Tiffany Moore, who was killed by a stray bullet as she sat atop a mailbox on a Roxbury street corner, talking to friends on the night of Aug. 19, 1988. The killing sent shock waves through the city and came to symbolize an era when drug-fueled street gang violence seemed out of control. Some residents called for the deployment of the National Guard.

In 2003, after several prosecution witnesses told the Globe that police investigators bullied them into testifying against Drumgold, Suffolk County prosecutors said they believed he was wrongfully convicted but stopped short of saying he was innocent. A Superior Court judge overturned the conviction, saying "justice was not done" and the "system had failed."

This week, William F. Sinnott, the city's corporation counsel, said the city is mounting a vigorous defense because there was no miscarriage of justice. He refused to say whether the police department still believes Drumgold is guilty. "We think that the plaintiff did receive a fair trial the first time around when he was convicted in Suffolk County," Sinnott said. "We think the evidence will speak for itself, and we think it's strong evidence on our behalf."

Sinnott said it was impossible to predict how much Boston will ultimately spend in addition to the $1.14 million paid through Dec. 31. But he said it will be substantial, given the long hours the defense lawyers are likely to put in while on trial.

Drumgold's lawyer, Rosemary Scapicchio, predicted the city will ultimately spend about $2 million on the suit. She said the city is wasting tax dollars while refusing to acknowledge that police prosecuted an innocent man.

"Despite the fact that there's a new regime in the [Boston Police Department], this is the same old game of spending millions of dollars to defend a mistake, rather than admit a mistake and move on," Scapicchio said, referring to Edward F. Davis, who became commissioner 13 months ago.

The city raised the hourly pay of the five lawyers, all of whom are from different firms, from $140 to $175 in August, which Sinnott called "bargain-basement rates" for top-notch litigators.

Partners in the most prestigious law firms in Boston charge as much as $500 an hour to corporate clients, according to David L. Yas, publisher of Massachusetts Lawyers Weekly.

The money paid to the five lawyers so far is the equivalent of 7,857 hours spent on the case.

Neufeld said the fact that Drumgold was not exonerated by DNA has likely spurred the city to put up a fierce fight.

"I think they're spending all the money, frankly, to avoid liability," said Neufeld, whose organization was not involved in the Drumgold case.

At his criminal trial, prosecutors portrayed Drumgold, a former drug dealer, as a gang member who had been gunning for a rival when Moore was shot.

But in May 2003, a Globe investigative report challenged many aspects of the conviction, including Drumgold's supposed gang affiliation. Two witnesses recanted statements and testimony used to convict Drumgold, saying authorities coerced them into providing incriminating evidence. The Globe also reported that police paid one witness to testify against Drumgold and dropped criminal charges against that witness, and it reported that police did not tell defense lawyers that a second witness, who later died, had a brain tumor that could have affected her memory.

In response to the report, Suffolk's top homicide prosecutor at the time, David E. Meier, reexamined the case and concluded that Drumgold got an unfair trial, citing newly discovered evidence and the failure of prosecutors to disclose some exculpatory evidence. Superior Court Judge Barbara J. Rouse threw out the conviction in November 2003, and prosecutors opted not to retry Drumgold.

In recent years, the city has settled other civil suits brought by wrongly convicted defendants. In 2006, the city paid $3.2 million to Stephan Cowans, who spent six years in prison after police wrongly linked him to a fingerprint left by a man who wounded a police sergeant in a shooting.

In another 2006 settlement, the city also paid $3.2 million to Neil Miller, who was exonerated by DNA evidence after spending 10 years in prison after being convicted of breaking and entering into an Emerson College student's apartment and raping her in 1989.

But the city spent only about $100,000 in both cases on outside legal fees before settling them, according to figures obtained by the Globe last year.

Scapicchio contends that the city has refused to settle the Drumgold suit because Boston police still believe he killed Moore.

"Drumgold did it - that's what they think," she said. "That appears to be what they plan to present as a defense."

She said the city has never offered to settle the dispute, but Sinnott said neither has Scapicchio.

Drumgold, who is 42, could not be reached for comment. He lives in Boston and is in a job training program, Scapicchio said.

Sinnott said the city went outside for legal help, instead of using its own staff attorneys, because Drumgold is suing several retired police officers along with the city and the government's interests might conflict with those of the other defendants.

So far, the city has paid $394,147 to Hugh Curran, a former Suffolk prosecutor, and $184,262 to Mary Jo Harris, a former lawyer for the Boston Police who is now in private practice, according to the records. A third lawyer, John Roache, whose wife used to work for the Boston Police as a lawyer, has been paid $284,350. The city has also paid William White Jr. $207,434 and Eve Piemonte-Stacey $12,970, and has paid a private investigator $58,966.

Jonathan Saltzman can be reached at jsaltzman@globe.com