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Wednesday, November 08, 2006

Judge favors DNA testing for lifer

This article appeared in the Patriot Ledger on October 31, 2006:

Judge favors DNA testing for lifer;
Man must prove tests ‘could raise serious doubts’

By Sue Reinert
The Patriot Ledger

A mildly retarded man who confessed to a torture murder in Plymouth, only to be acquitted, now has a second chance to prove he did not rape and murder an elderly woman in Lakeville.

A federal judge has raised the possibility of DNA testing that could free Robert Wade, 57, from a sentence of life without parole for first-degree murder.

U.S. District Court Judge Nancy Gertner has ruled that Wade might be entitled to have the elderly woman’s clothing and bed sheets tested for DNA if he can show the tests ‘‘could raise serious doubts about the original verdict.’’

‘‘In accordance with the State’s interest in doing justice, exculpatory DNA evidence may allow the state to both free the innocent and convict the guilty,’’ Gertner wrote.

It is the first time a judge in New England has said that prisoners have a constitutional right to the sophisticated tests after conviction.

The ruling did not order DNA tests on evidence in Wade’s case. He must first show that the tests could exonerate him, that he didn’t wait too long to appeal, and meet other standards, Gertner said.Although DNA evidence has exonerated 183 people nationwide, Gertner’s decision is the first to give prisoners the right to DNA testing after conviction if it might prove them innocent.Wade’s appeal lawyer, Lenox attorney Janet H. Pumphrey, said she has sought DNA testing for five years.

‘‘It could exonerate him,’’ she said.Blood tests used in Wade’s conviction were ‘‘elementary,’’ she said.Pumphrey said the Innocence Project, a group of lawyers and law students based in New York city, who have won freedom for prisoners across the country on the basis of DNA tests, helped her in Wade’s appeal.

She called Gertner’s ruling ‘‘an important decision both in the area of civil rights litigation and in particular, post-conviction DNA testing.’’Wade, who lived in Lakeville, confessed in 1986 to killing a disabled 23-year-old Plymouth man, Paul Rober Jr. Wade and Kurt Kegler beat and tortured Rober for six hours before they strangled him with rope provided by a Carver woman, prosecutors said.

A Plymouth Superior Court judge threw out Wade’s confession, ruling it was not voluntary because he is mildly retarded and was drunk when police questioned him. A jury acquitted Wade.

The second murder accusation came in 1993. Police arrested Wade for raping Johanna Francescon, 84, the mother of the man who employed Wade on a Lakeville pig farm. Wade was charged with murder after Francescon, who had advanced Alzheimer’s disease, died of pneumonia in a hospital after the attack.

Wade denied raping the elderly woman, although she was found in his cabin on the farm with fractures and abrasions.

Tests on blood and semen found on the victim’s clothes suggested that it might have come from a second person as well as Wade, Gertner wrote in her decision.

Wade’s defense attorney at his trial did not seek DNA tests, which were not widely used at the time. Instead, the lawyer argued that Francescon consented to have sex with Wade. The jury convicted him of murder as a result of the rape.

Lower state courts and the state’s Supreme Judicial Court have denied Wade’s appeals for DNA testing. Wade filed an appeal in federal court in 2004.

Terence Burke, spokesman for Attorney General Thomas Reilly, who opposed DNA tests for Wade, said Reilly’s office is reviewing the ruling.Bridget Norton Middleton, spokeswoman for Plymouth County District Attorney Timothy Cruz, referred questions to Reilly’s office.

Relatives of Paul Rober Jr. were angry when Wade’s first conviction was overturned. Rober’s father, Paul Rober Sr., who moved his family to Braintree after the murder, co-founded the Boston chapter of Parents of Murdered Children.The elder Rober died of cancer in 2000. His son, James Rober of Brockton, took up the campaign for murder victims.

Sue Reinert may be reached at sreinert@ledger.com
Copyright 2006 The Patriot Ledger

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