Ineffective Counsel - The Kenneth Waters Story
In 1983, after a five-day jury trial in Middlesex County Superior Court, Kenneth Waters was convicted of the first-degree murder and armed robbery of Katharina Brow. He was sentenced to life in prison, without the possibility of parole. However, if Waters’ lawyer had done his job in the first place, he probably would have never been convicted.
‘Conviction’ is a powerful film about the undaunted dedication of Betty Anne Waters in proving her brother’s innocence. Hilary Swank plays the lead role of Betty Anne, a sister who literally dedicates her life to exonerating her brother Kenny from an unjust murder conviction. Despite being a single mother with two young boys, at her brother’s insistence, Betty Anne enrolls at CCRI and eventually completes her bachelor’s degree at Rhode Island College and law degree at Roger Williams University Law School. During law school, she learned about DNA testing and the work of the Innocence Project in exonerating individuals wrongfully convicted of crimes.
In November of 1998, Betty Anne wrote to the Innocence Project requesting assistance in her brother’s case. After locating the blood evidence still stored in the basement of the Middlesex Courthouse, Betty Anne secured the assistance of the Innocence Project to test the blood evidence which later determined that the DNA of the perpetrator did not match Waters. Kenny Waters was released from prison in 2001.
I first learned about Betty Anne Waters seven years ago when she was the guest speaker at the Rhode Island Association of Criminal Defense Lawyers’ annual meeting. Betty Anne told this very powerful story about with such amazing grace and humility. I sat in wonder over her absolute dedication to her brother’s cause, a dedication that spanned over two decades. I also couldn’t help think about the mistakes made by Waters’ defense counsel that led to his conviction. Recently, Betty Anne was kind enough to sit down and relate to me some lessons of her brother’s case that that all defense attorneys should be aware of.
“My family and I visited all of the top lawyers in the area, including F. Lee Bailey, but they all wanted a huge sum of money, up to fifty thousand dollars, just to get started,” remarked Betty Anne. “In my family, no one had graduated college and we had no money. We wanted to raise the funds but Kenny did not want the family spending money on a lawyer for a crime he didn’t commit.”
Throughout his case, Waters was represented by an experienced court-appointed attorney. “He seemed to have a command of the courtroom and told us that he had tried many murder cases, so we trusted him” noted Betty Anne. However, in the 28 years that elapsed since her brother’s conviction, Betty Anne learned that this attorney never properly investigated this case and was completely ineffective in obtaining available evidence that proved his innocence.
Kenny Waters was not convicted based upon eye-witness identification, forensic evidence or a confession to police. Instead, he was convicted primarily as a result of the testimony of two ex-girlfriends, both of which testified that Waters admitted to them that he had killed Katharina Brow. Their testimony, along with Waters’ failure to prove his alibi defense, was enough to convict him of first-degree murder with extreme atrocity and sentence him to life in prison without the possibility of parole. His appeal to the Massachusetts Supreme Judicial Court was heard and denied in 1987.
While DNA testing eventually cleared Waters, if his defense counsel had done his job in the first place, he probably would have never been convicted.
During
grand jury proceedings, officials from the Ayer Police testified that no usable latent prints were recovered from the crime scene. Yet no
defense motions were ever filed to confirm this testimony. In fact, Massachusetts State Police had recovered several usable latent prints from the crime scene that were identified as belonging to the perpetrator. These prints were compared with the prints of several suspects, including Waters, and he was excluded as the source. The evidence that Waters was innocent of this crime was in existence in 1980. It did not require the development of DNA testing 18 years later.
“I asked the retired State Police BCI Detective why he never came forward with this evidence, knowing full well that it proved that Kenny did not commit this murder. He told me he never thought to since he heard that Kenny had admitted to the murder,” said Betty Anne. It took over two decades and a civil action subpoena to produce the box of latent prints and test results that were still stored in the detective’s personal storage unit. When recovered, they proved that the Massachusetts State Police had already excluded Waters as a source of the perpetrator’s prints long before he was ever charged. It also proved that members of the Ayer Police Department were well aware of these results prior to charging him. These shocking findings helped secure a civil judgment against the town of Ayer.
The bottom line is that Waters’ trial lawyer never demanded an independent inspection of the latent prints recovered from the crime scene. Instead, he simply took the word of a police officer testifying under oath at a grand jury that no usable latent prints existed. If Waters’ attorney had demanded to inspect and test the prints, he would have discovered that they were not only usable, they exonerated his client. The so-called admissions testified to by Waters’ ex-girlfriends were later discarded by the District Attorney’s office in the face of compelling DNA evidence. This decision could have taken place two decades earlier in light of the fingerprint evidence. Without question, a
jury verdict of not-guilty would have been much more probable.
To those of us in the criminal defense bar, the lessons of
Kenny Waters’ conviction cannot be clearer. We simply cannot accept at face value the claims of police, state experts or for that matter, state prosecutors. (Interestingly enough, the former district attorney who tried this case, now a Massachusetts judge, later testified at deposition that she was unaware of what a latent print was). We must, without exception, separately investigate and verify all available evidence. If Kenny Waters’ original trial lawyer had done so, he probably would not have spent 18 years in prison for a crime he didn’t commit.
Copyright June 2011 @ John MacDonald, Esquire
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If
you have questions about this posting or are interested in Criminal
Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal
Defense Lawyer John E. MacDonald at 401-421-1440.
To learn more about The Law Office of John MacDonald, please visit his website at
AggressiveLegalServices.com.
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