Will 9th time be charm? Rapist's trial appeal to be heard.
WORCESTER - Convicted rapist Benjamin LaGuer may get another day in court. His ninth try for a new trial was taken under advisement by Judge Richard T. Tucker yesterday in Worcester Superior Court, after a hearing during which Mr. LaGuer repeatedly claimed DNA connecting him to the 1983 case was improperly collected, and mixed with DNA taken from clothing in his apartment.
Mr. LaGuer, 48, who has served 28 years of a life sentence for brutally raping and beating his 59-year-old Leominster neighbor for eight hours in July 1983, also told the judge he questioned if the woman was raped, because, he claimed, sample swabs taken from her peri-anal area did not contain blood. DNA testing was not available when the samples were taken.
"Now you're saying there was no assault?" Judge Tucker asked.
"She was assaulted and robbed - maybe not sexually assaulted continuously for eight hours," Mr. LaGuer responded.
He has maintained all along that he is innocent because the woman, who he claimed was mentally ill, misidentified him.
Mr. LaGuer's case was at one time a cause celebre, garnering support from the news media, politicians, legal advocates, and others until DNA testing in 2002 - at Mr. LaGuer's insistence - tied him to the crime. Concurrent tests at another lab done at the request of the prosecution, also connected him with the crime. Mr. LaGuer also admitted to substituting a fellow inmate's saliva in one of the samples.
Mr. LaGuer, who spoke longer at yesterday's 90-minute hearing than did his lawyer, Robert E. Terk, had a list of 27 potential witnesses, including Gov. Deval L. Patrick, a one-time supporter, to call yesterday.
None of them showed up.
The judge decided only one witness, former Fitchburg City Councilor Annie K. DeMartino, could possibly warrant a hearing.
According to court documents filed by Mr. Terk, Ms. DeMartino, who in the 1980s was a mental health aide who transported the now-deceased neighbor to appointments, will claim the woman was on antipsychotic drugs, and had a "previously undisclosed relationship" with another suspect.
Judge Tucker gave Mr. Terk until Oct. 21 to file briefs on what the judge called two pertinent points: If proof of flawed DNA tests are relevant, because no DNA or other forensic evidence was introduced at the 1984 trial and subsequent conviction; and if there is new testimony by Ms. DeMartino that could not have been brought forward previously.
Mr. Terk said he was not given enough notice to get witnesses to court yesterday.
Prosecutors Sandra L. Hautanen and Joseph J. Reilly III said Mr. LaGuer has not provided any new evidence, and, in fact, gave false evidence to the court of an alleged 1984 unsigned letter from then-Worcester assistant district attorney James R. Lemire, now an associate Superior Court judge, offering a plea deal to Mr. LaGuer.
Documents filed by Ms. Hautanen contain affidavits from Mr. Lemire saying he never sent such a letter, nor offered a plea bargain to Mr. LaGuer.
Judge Tucker will decide whether to set a hearing on the new trial after reading briefs, including those to be submitted by prosecutors asking for a dismissal. Prosecutors say Mr. LaGuer has tried many times to defraud the court by submitting unsigned letters and uncorroborated statements from police and forensic laboratory personnel.
Mr. LaGuer has served 28 years of a life sentence for raping and beating the woman, who identified him during the trial. He has been denied parole four times.
PHOTOG: T&G Staff/PAUL KAPTEYN
CUTLINE: (1) Convicted rapist Benjamin LaGuer is restrained by his lawyer, Robert E. Terk, as Mr. LaGuer interrupts proceedings during a hearing yesterday on his motion for a new trial. (2) Assistant District Attorney Sandra L. Hautanen reacts as Mr. LaGuer argues a point during the hearing on his motion for a new trial.