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"Failing the DNA Test," Michael Blanding and Lindsay Markel, November 20, 2011, The Boston Globe Magazine

WBUR's Radio Boston hosts talk with Schuster Senior Fellow Michael Blanding about DNA testing for prisoners in Massachusetts

WGBH's Phillip Martin discusses the proposed Mass. DNA access law: Part 1 | Part 2

How do wrongful convictions occur?

Journalists' guide: How you can localize the Troy Davis story in your state

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Retired Judge Robert Barton

Retired Middlesex Superior Court Judge Robert Barton discusses his decisions in Dennis Maher's case during an interview in his Bedford home office in October 2011. Barton maintains that Maher's trials were fair, and he owes him no apology for denying him access to DNA testing. He says at the time, DNA was new and he didn't understand its reliability and potential to exonerate the wrongfully convicted. He acknowledges that he wishes there had been such a DNA access law when he considered Maher's motions for testing. 

Exonerated by DNA:
  Massachusetts wrongful
  convictions overturned 

Dennis Maher with his family

After more than 19 years in Massachusetts prison for crimes he did not commit, Dennis Maher was exonerated in 2003 through DNA testing. Upon his release, prosecutor J.W. Carney, with tears in his eyes, apologized to Maher. Maher is pictured here with his family at their home in Tewksbury in October, 2011. Photograph by Boston photojournalist Erik Jacobs.

Dennis Maher

Read more about Dennis Maher’s wrongful conviction and long road to exoneration in “Failing the DNA Test,” Boston Globe Magazine, November 20, 2011, by Schuster Institute for Investigative Journalism Senior Fellow Michael Blanding and Assistant Director Lindsay Markel.

Dennis Maher walked free from Middlesex County Superior Courthouse April 3, 2003, after serving 19 years, two months, and 29 days in prison (according to his count) for crimes he did not commit. DNA evidence ultimately cleared his name. 

Despite his protestations of innocence, two separate juries found Maher guilty of two rapes and a sexual assault. He was, he said, actually meeting with his commanding officer in Fort Devens while one of the women was being raped almost 20 miles away in Lowell. Two fellow sergeants testified to the same. But the jury in Lowell, and then another one for an earlier rape in Ayer, found him guilty anyway.

Maher was prosecuted by J.W. Carney, now a high profile defense attorney, who eventually supported Maher’s bid for exoneration. But at the time, the evidence Carney had to work with seemed strong: The red sweatshirt Maher was wearing on the night of his arrest originally raised police suspicions because it was similar to the one the Lowell rape victim described. Then, in Maher’s car, police found an army jacket and knife—again, meeting the victim’s description. “This appeared to be a compelling government case,” Carney said. Because there was still more evidence: the three assault victims identified him as their attacker, first from photo arrays, then from live lineups.

As in Maher’s case, most of the 280 DNA exonerations have demonstrated that decades of social science research is right: eyewitnesses are very often mistaken. In fact, they played a role in 75% of those wrongful convictions—and as in Maher’s case, more than one person made the same mistake, identifying the same wrong perpetrator, 36% of the time.

In the end, Dennis Maher was sentenced to life in prison for the three attacks.

Maher sought help from the Innocence Project in New York, and in 1997, lawyers filed a motion for DNA testing with Judge Robert Barton, who had presided over Maher’s original trials. Barton denied that motion—just as he had denied all the previous motions Maher had filed asking for a new trial. (Read one of the new trial denials.

“At that time, I was lost,” Maher said. “I’m thinking, I’m going to die. I’m going to die in prison.” That stalemate persisted for three years, until a Boston Globe reporter told him that Judge Barton was retiring. That news, Maher said, was “an answer to my prayers.” Maher immediately contacted the Innocence Project in New York again, and was directed to the newly-formed New England Innocence Project (NEIP). 

“We felt that this was a perfect case—if we could find the evidence for DNA,” said Aliza Kaplan, the NEIP attorney who eventually did take on Maher’s case.  “But obviously you can’t request testing until you find the evidence. So that is often where the battle begins, and in Dennis’s case, it certainly was.” 

NEIP spent months trying to find the evidence. It took Karin Burns, a law student and NEIP intern, pestering clerks on their lunch breaks, to finally crack the case. J.W. Carney, who prosecuted Maher, says she’s “the true heroine in this case.” Burns “was repeatedly rebuffed by the clerk’s office, which said that the evidence could not be located,” Carney said. “She came back again and again, pleading for help to try to find the evidence.” Finally, a sympathetic clerk found the evidence. “Without this law student’s incredible dedication to Mr. Maher’s case, he likely would still be in prison.”

Maher’s NEIP attorneys were overjoyed. Maher, on the other hand, was more subdued: “Good,” he thought.  “Hopefully something works.” At that point, he explained, he expected setbacks. “I’[d] been shot down so many times, it’s normal.”

But this time, when Kaplan filed a motion asking for access to the evidence in 2001, the judge who replaced Barton allowed the test. Maher’s luck was changing.

The first round of results came back on Christmas Eve, 2002. A male DNA profile was found on the pants of the Lowell rape victim—but it wasn’t Maher’s. And then, on April Fool’s Day, 2001, the final results came back from the rape in Ayer. Two male DNA profiles were found in that rape kit—and again, neither of them were Maher’s. What’s more, according to Aliza Kaplan, the DNA tests showed that different men raped the two women. Kaplan filed Maher’s final motion for new trial, which this time, prosecutors did not oppose.

After locating hospital records that showed the Lowell victim had never had sex prior to her rape—which meant the profiles from the DNA test could have only come from her rapist—then-Middlesex District Attorney Martha Coakley filed a motion, telling the court that the DNA tests demonstrated that Maher “did not commit” the rapes and created reasonable doubt that he committed the sexual assault (which did not result in testable evidence). The filing said that prosecutors would not re-prosecute the charges, because “the Commonwealth has determined that [not re-prosecuting] is in the interest of justice.”

Maher was freed, almost exactly six years after he first asked for access to the biological evidence that would show him innocent. On the day of his exoneration, J.W. Carney, with tears in his eyes, apologized to Maher. 

Maher doubts that he would have been able to move forward and start a family without that apology. “I may have been angry and bitter all along.” He said that many of his fellow exonerees have not been able to move on because they were “looking for something” they wouldn’t get. “A lot of the DAs will not apologize because they don’t think they did anything wrong. Or it would be below them to apologize. But Jay just said, ‘I’m sorry’. Just like that.”

Retired Judge Barton, however, says he owes no apology. He insisted that Maher’s trials were fair, and that appellate courts agreed with him. He does, however, say that over time, he believes he would have allowed Maher’s DNA tests, but at the time, DNA testing in Massachusetts was relatively new, and he didn’t think the tests would be relevant.  “Obviously, I was mistaken on that,” he said. “Don’t you think I wish they had a statute at the time? Of course. Then there would be no question.” 

Today, Maher is an outspoken advocate for a DNA-access bill that was passed unanimously by the Massachusetts Senate on July 28, 2011, but is still pending in the House. “I went and spoke in Maine. They changed their law in Maine,” he said in an October interview at his home in Tewksbury. “I went and spoke in Vermont. They created a whole new DNA bill and compensation bill [to compensate wrongly convicted people after they’re proven innocent] from scratch in less than a year.” Massachusetts’s DNA-access bill “has been fought over for years,” he adds. On June 8, 2011, Maher testified at a Joint Committee hearing in favor of the his own state’s bill, concluding:

“I ended up doing an extra six years in prison because there are no DNA laws in Massachusetts…. I will ask you to favor this so we are not the last state to pass a DNA bill.… I am sure there [is] more than one person in Massachusetts who is waiting for access to DNA, so please pass this.”

After Maher’s testimony, several state legislators—visibly affected by his story—followed him into the hall, temporarily bringing the proceedings to a standstill. 

In October, Maher expressed hope for the bill’s passage. “I think it’s time. I think they’re at the stage where they’re really for it. The State House is ready for it,” he said. “I hope to be there when it gets signed.”

—Lindsay Markel, November 20, 2011

News articles about Dennis Maher’s case

“Beyond bars,” Stephanie Horst, September 4, 2011, Boston Globe. 

“Seasoned, Well Known Lawyer Faces a Big Challenge,” Maria Cramer, July 1, 2011, Boston Globe. 

“Ayer pays up on suit,” Mary E. Arata, July 19, 2010, The Lowell Sun.  

“Ayer to Pay 3.1 Million for Wrongful Conviction,” Jonathan Saltzman, August 7, 2009, Boston Globe. 

“Ayer will settle over wrongful conviction in '83 case,” Mary E. Arata, July 27, 2009, The Lowell Sun.  

“Selectmen meet in private on Maher suit,” Mary E. Arata, July 23, 2009, The Lowell Sun.

“Charges against Ayer cops dropped,” Lisa Redmond, July 16, 2009, The Lowell Sun.

"Hearing set in wrongfully jailed Lowell man's suit vs. Ayer,” Lisa Redmond, January 22, 2009, The Lowell Sun.

“Police head defends role after wrongful imprisonment,” Maria Cramer, December 25, 2008, Boston Globe. 

“Lowell settles with man wrongly imprisoned in sex assaults,” Lisa Redmond, December 12, 2008, The Lowell Sun.  

“Lawyers seek city psychiatrist to evaluate man suing Lowell, Ayer,” Lisa Redmond, August 7, 2008, The Lowell Sun. 

“Wrongful conviction lawsuit can proceed,” Shelley Murphy, November 7, 2006, Boston Globe. 

“Judge keeps false-imprisonment suit alive,” November 7, 2006, The Lowell Sun.  

“Waiting for Leadership,” Brian McGrory, October 24, 2006, Boston Globe. 

“DNA Truth-Seeking,” October 16, 2006, Boston Globe.

“Maher sues over 19 years in prison,” Lisa Redmond, April 1, 2006, The Lowell Sun.  

“His Defense Never Rests,” Bella English, December 7, 2005, Boston Globe. 

“State will pay over $1.5M to three wrongly convicted,” Ralph Ranalli, August 13, 2005, Boston Globe. 

“3 wrongly jailed will share $1.5M,” Casey Ross and Maggie Mulvihill, August 13, 2005, Boston Herald.  

“State offers Maher $550,000 over conviction,” Erik Arvidson, August 13, 2005, The Lowell Sun.  

“Maher awaits $1.5M claim over conviction,” David Perry, June 23, 2005, The Lowell Sun.  

“A New Life,” David Perry, February 28, 2005, The Lowell Sun.  

“Fatherhood follows freedom for wrongly convicted Tewksbury man,” Robert Mills, January 3, 2005, The Lowell Sun. 

“Special Report: Justice denied it’s time for age of innocence: A call for commission on wrongful convictions,” Maggie Mulvihill and Franci Richardson, May 7, 2004, Boston Herald.  

“Man freed after 19 years in prison seeks $40M,” Michael Lafleur, April 7, 2004, The Lowell Sun. 

“Lowell man, friends celebrate innocence lost then found,” Elizabeth Pariseau, April 4, 2004, The Lowell Sun. 

“Prison nightmare over, life tastes good again,” Lisa Redmond, April 2, 2004, The Lowell Sun.  

“Funding bid dropped for Lowell man wrongly jailed,” Lisa Redmond, June 5, 2003, The Lowell Sun.  

“19 Year Later, Innocence Comes Home,” Dick Lehr, October 12, 2003, Boston Globe. 

“Lessons Learned from a Miscarriage of Justice,” Frederick R. Bieber and David Lazer, April 12, 2003, Boston Globe. 

“Man Imprisoned On Rape Charges Freed Dna Evidence Clears Defendant,” John Ellement and Dick Lehr, April 4, 2003, Boston Globe. 

“Wrongly jailed man free after 19 years,” David Weber, April 4, 2003, Boston Herald. 

“Innocent man forgives women who put him in prison; DNA clears ex-soldier in Lowell, Ayer rape cases after 19 years,” April 4, 2003, Worcester Telegram & Gazette. 

“Rape Convict Exonerated By DNA Wins Freedom,” April 3, 2003, ABC 5:WCBV. 

“DNA evidence set to free ex-Green Beret in rapes,” David Weber, April 3, 2003, Boston Herald.  

“After 19 Years, Dna Set to Free Rape Convict,” Dick Lehr, April 2, 2003, Boston Globe. 

“DNA Clears Man Who Spent 19 Years In Prison,” April 2, 2003, ABC 5:WCBV. 

Last page update: November 18, 2011

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