A study in contrasts

‘Last Chance DNA’ examines testing that frees some — but not all — inmates
By Pamela H. Sacks
Telegram & Gazette


2002

WGBH-TV producer Patricia Alvarado was shaken when she heard the news, and she headed directly to a room where the film editor was working on “Last Chance DNA.”
“Something has happened,” Ms. Alvarado informed John Neuberger as she sank into a chair.
Ms. Alvarado told him that the results of DNA tests on Benjamin LaGuer had further implicated him in the crime of rape. Mr. LaGuer, who had come from Leominster, where the crime was committed, had claimed for nearly two decades that he had been wrongly convicted.
Like many other people, Ms. Alvarado was quite certain Mr. LaGuer would be exonerated. The documentary, to air on Channel 2’s Latino program “La Plaza,” had been geared toward good news for the prisoner, who had lobbied relentlessly for publicity and had gained high-profile supporters.
“He had been so consistent and persistent all these years,” Ms. Alvarado said. “Why do you want a test when you may be guilty?”
Ms. Alvarado quickly huddled with two other producers, Joseph Tovares, managing producer of “La Plaza,” and Denise DiIanni, executive in charge of local productions.
As it turned out, the documentary was not hard to salvage, as its power under any circumstances lies largely in a man named Angel Hernandez, who also had been convicted years ago of raping a woman. Throughout “Last Chance DNA,” Mr. Hernandez stands as a fascinating contrast to Mr. LaGuer because of his steady, quiet determination to prove his innocence.
Mr. Hernandez, who lives in Springfield, was wrongly convicted in 1987 on the basis of identification by his alleged victim. He sought DNA testing year after year and was repeatedly turned down.
Last summer, the tests were conducted after the Appeals Court reversed a denial by a lower court and directed the Hampden County district attorney to allow the procedure. Mr. Hernandez was exonerated and freed. He had spent 14 years behind bars.
To some viewers, the different outcomes for Mr. Hernandez and Mr. LaGuer will add an air of credibility to the documentary. Those who conduct the tests estimate that 60 percent of inmates who are granted postconviction DNA testing are further implicated in their crimes, while 40 percent are exonerated. Of those exonerated — so far, more than 100 nationwide — the overwhelming majority are people of color.
Before Mr. Hernandez was to win the right to the test, the Innocence Project, which has been the leader in advocating postconviction DNA testing, had to get involved.
In a telephone interview, lawyer Robert Feldman, who appears in “Last Chance DNA,” recalled what happened in the Hernandez case. Mr. Feldman is an associate at Testa, Hurwitz and Thibeault, a Boston law firm that helps coordinate the New England Innocence Project pro bono.
Sam Silverman, a lawyer from Lexington, agreed to represent Mr. Hernandez after he appealed to the Council on Public Counsel Services. Mr. Silverman turned to Barry Scheck, who, with Peter Neufeld, founded the Innocence Project in 1992. Mr. Silverman was aware that negotiating with prosecutors and judges over DNA testing calls for particular knowledge. Mr. Scheck, in turn, referred the case to Mr. Feldman.
Mr. Hernandez was immediately released after the test results came back in August 2001, because, Mr. Feldman said, “no reasonable person could concoct a story that would still point to Angel as the perpetrator.”
As he departed prison, Mr. Hernandez, now 35, was handed a $500 check from the state and given three free nights in a hotel.
In the documentary, Daniel Givelber, professor of criminal law at Northeastern University, states that wrongly convicted inmates are estimated to make up 1 percent to 5 percent of the prison population.
“You are looking at a country with 2 million people in prison,” Mr. Givelber said. “If the figure of those wrongly accused is 1 percent, that means there are 20,000 people in prison who are innocent. And I would also guess that these are very much going to be people of color.”
Mr. Tovares and Ms. Alvarado maintain that what boosted Mr. LaGuer’s credibility over time was clear evidence that his trial was unfair. Members of the all-white jury made racial slurs. A lack of fingerprint evidence and the victim’s mental illness were kept hidden.
“When you hear what happened in the courtroom, it’s shocking,” Mr. Tovares said.
Yet, what would motivate Mr. LaGuer to seek DNA testing?
Those connected with “Last Chance DNA” have their theories. Mr. Tovares sees him as “a diabolical character, quite the manipulator.”
Ms. Alvarado put the question directly to Mr. LaGuer when she returned to Norfolk State Prison to interview him after the results were known.
“I was very cold,” she said. “I was sad that things went this way. I asked direct questions to him. `Are you delusional?’ I think he believes he didn’t do it. In order to keep the story that consistently and convince so many people, you have to believe you didn’t do it.”
Mr. Feldman has a different idea.
“There may be individuals who believe this is a test they can beat,” he said. “Unfortunately for those individuals, DNA doesn’t lie. The test results are meaningful.”
As for “Last Chance DNA,” the producers ended the documentary with the revelation of Mr. LaGuer’s DNA test results. They went back and forth about whether to include his reaction and decided against it.
“We all knew what Benjamin LaGuer would say — that he was framed,” Mr. Tovares said. “Editorially, we were not sure how we felt about that being part of the program. We gave him a lot of time in the course of the program. Once the results came back, we felt it was best editorially and dramatically to just state the results.”