Ex-judge takes up convict's cause

He is LaGuer's new lawyer in '83 rape case

Benjamin LaGuer was found guilty of rape.

Since Benjamin LaGuer was convicted 25 years ago of committing a horrific rape, many luminaries have questioned whether it was a miscarriage of justice, including Nobel laureate Elie Wiesel, former Boston University president John Silber, and Governor Deval Patrick.

Now the 45-year-old prison inmate has a new lawyer taking up his cause, one who says he knows all too well the fallibility of the criminal justice system: retired Superior Court Judge Isaac Borenstein.

Borenstein, who is perhaps best known for overturning the convictions of Violet Amirault and her daughter, Cheryl Amirault LeFave, in the notorious Fells Acre Day Care child molestation case, has met with LaGuer a dozen times and reviewed the case file and results of DNA tests in 2002 that appeared to tie him unequivocally to the 1983 rape. The test results were unreliable, he concluded, because evidence was mislabeled and mishandled.

"I would not have gotten involved in this case if [the impetus] was only his supporters, whom I respect, or his passionate claims of innocence," Borenstein said Wednesday at Rudolph Friedmann LLP, the Boston law firm he joined in September.

Indeed, the 58-year-old native of Cuba said he was as skeptical as anyone of LaGuer's assertions. But after spending hundreds of hours reviewing the case, he said: "I believe Ben LaGuer is innocent of the crimes he was convicted of. And for me, that's not the most important issue. Very serious questions have been raised for years about the fairness of his conviction and his continuing to serve a life sentence."

LaGuer, who became a millstone for Patrick in the 2006 gubernatorial race after news reports that the Democratic candidate had advocated for his release, said he is optimistic about winning his freedom.

"He heard the scream for justice," LaGuer said of Borenstein in a telephone interview from North Central Correctional Institution at Gardner. "The facts have always been clear. The facts became a little muddled during the campaign of Deval Patrick, but once the dust has settled, people like Judge Borenstein . . . are coming forward and lending us their support."

A spokesman for Worcester District Attorney Joseph D. Early Jr., whose office prosecuted LaGuer in the Leominster rape case, declined to comment, except to say that "Mr. Borenstein is free to work for whomever he chooses, and Mr. LaGuer is free to hire whomever he chooses."

Some skeptics say LaGuer, a skilled writer who sends a torrent of letters to journalists and lawyers, is a con man who has fooled many smart people and that Borenstein is the latest one.

"I consider them all victims," said Mayor Dean J. Mazzarella of Leominster, a former city police officer who was among the first at the crime scene and who said he has no doubts about LaGuer's guilt.

"Let's face it, the system, as good as it is, has wronged some people," Mazzarella said. "And I think there are people out there who rise to the occasion when someone presents themselves as somebody who's been wronged."

LaGuer, a US Army veteran, was convicted in 1984 of raping and sodomizing over eight hours a 59-year-old woman who lived in an apartment next door to him. He has been eligible for parole since 1998, but said he will not admit to a crime he insists he did not commit.

In 1991, he challenged his conviction to the Supreme Judicial Court. In a landmark ruling, the court concluded that racist comments allegedly made by members of the all-white jury before and during deliberations violated his right to a fair trial. The court did not overturn the verdict, but sent it back to the trial judge, who held a hearing to question jurors and ruled that racism had not tainted deliberations.

In 2007, the high court upheld the conviction again. It rejected an appeal that hinged on an old State Police report that surfaced in 2001 and showed that investigators recovered four fingerprints from the base of a telephone, the cord of which was used to bind the rape victim in her apartment. None of the prints belonged to LaGuer, who argued that the evidence could have cleared him. The SJC said the evidence was irrelevant.

During the 2006 gubernatorial race, the LaGuer case became a flashpoint after the Globe disclosed that Patrick had written two letters to the Parole Board on his behalf years earlier and had donated to a legal fund set up to help pay for the DNA tests. Patrick said that, given the test results, justice had been served. But Kerry Healey, then lieutenant governor and the Republican candidate, ran a television advertisement condemning him.

Borenstein declined to say who is paying him to represent LaGuer. He has not filed any motions but is focusing on the DNA test results. DNA played no role in the state's case against LaGuer in 1984, which relied on the victim's identification of him in a photo lineup, but the test results caused many of his supporters to abandon him. (The victim has since died.)

Borenstein and another lawyer, Elizabeth Billowitz, his former law clerk, say law enforcement authorities made numerous mistakes, including mislabeling a yellow jersey that LaGuer was wearing when he was arrested as having been found in the rape victim's apartment. Hairs on the jersey contained his DNA.

Several independent DNA specialists have also recently disputed the reliability of the test results, although they did not perform their own tests.

Although Borenstein overturned the child molestation convictions of LeFave and her mother in the late 1990s, the SJC reinstated them. Nonetheless, his actions played a pivotal role in the ultimate release of LeFave and her brother Gerald Amirault, both of whom were viewed by many as innocent victims of the widespread day-care molestation investigations of the 1980s. (Their mother died after being freed on bail.)

Borenstein said the Fells Acres and LaGuer cases both represent an unending quest for justice, one that plays itself out again and again in the courts.

"There has to be a search for justice for Ben LaGuer, just as there was for the Amiraults," he said.

"People have been on death row, seconds and inches away from the hangman's noose, with multiple trial court and appeals court affirmances, rejections of commutations, and orders that said, 'Execute them.' And they have been spared and freed," he said.