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Court orders new trial in Shawn Drumgold lawsuit

Shawn Drumgold served 14 years on a wrongful conviction.

Shawn Drumgold served 14 years on a wrongful conviction.

Nearly four years after a Boston man won a high-profile, $14 million judgment against the city for his wrongful murder conviction, a ­federal Appeals Court has ordered a new trial in the lawsuit, citing a ­legal technicality that will require a jury to decide whether a police ­detective and the city were at fault in the man’s original conviction.

On Thursday in Boston, the US Court of Appeals for the First ­Circuit ordered the new trial in the lawsuit of Shawn Drumgold, the former Dorchester man who was freed from prison in 2003 after serving 14 years for the killing of 12-year-old Darlene Tiffany Moore in Roxbury in 1988.

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The crime was one of the most notorious murders in Boston in the last quarter-century.

Drumgold was freed when a state court ruled in 2003 that he had had an unfair trial, after finding that the Boston detective withheld evidence in the case that could have impeached the credibility of a key witness. Prosecutors decided against prosecuting Drumgold again.

He then sued in federal court, arguing that his rights were violated. In 2009, a federal jury agreed that former Boston police ­detective Timothy Callahan withheld the evidence and that it caused the wrongful conviction, awarding Drumgold $1 million for each year he spent in prison.

But the appeals court panel found Thursday that US District Court Judge Nancy Gertner, who oversaw the 2009 trial, erred in instructing jurors on the definition of cause, or how they should decide whether Callahan’s wrongdoing was the cause of the conviction.

“We have no confidence that the . . . jury’s verdict was un­affected by the instructional ­error,” the Appeals Court ruled.

Drumgold’s lawyer, dis­appointed by the Appeals Court ruling, said she will nonetheless bring the lawsuit to trial again, arguing that jurors have clearly found that Callahan, his superiors, and the city were at fault in his erroneous conviction.

“If we have to do it again, we will do it again,” said Rosemary Scapicchio, who has represented Drumgold since he first professed his innocence. “You can’t change the facts; they are what they are.”

Scapicchio said that she had explained the decision to Drumgold and his family Thursday and that they were ­also disappointed, but “the fact that we can’t do this again doesn’t enter my mind.”

Drumgold has not received any of the $14 million judgment.

Dot Joyce, a spokeswoman for the mayor’s office, issued a statement saying: “The city is very pleased that the Court of Appeals has found in our favor. Our Law Department will study the decision before planning its next steps.”

Drumgold, 47, was released from prison in 2003 amid much controversy after a Globe report found questionable police work in the investigation of his role in Moore’s killing. The 12-year-old had been caught by crossfire in a gang shooting, a shocking killing that put the city on edge in one of the most violent times in recent history.

Twice, federal juries have found that Callahan violated Drumgold’s rights by hiding the fact that the detective had supplied a key witness, Ricky ­Evans, a homeless teenager at the time, with free housing at a Howard Johnson’s motel and that he fed him repeatedly and paid him $20.

Because of a lack of physical evidence in the case, prosecutors relied heavily on witnesses, including Evans, who testified that he saw Drumgold and ­Terrance Taylor near the street corner where Moore was killed, before and after the shooting, and that both men were armed and acting strangely. Both men were tried, but only Drumgold was convicted.

Evans later changed his story, however, and said he shaped his testimony to implicate Drumgold based on discussions he overhead Callahan having with another investigator.

A federal jury found in 2008 that Callahan had violated Drumgold’s rights by concealing the information, but jurors in that case could not agree on whether the detective’s wrongdoing led to the conviction. The case was declared a mistrial, but a separate jury found in 2009 that the detective was the cause of the conviction and that Drumgold was entitled to a monetary award.

In her instructions, Gertner had told jurors in 2009 that they had to find that Callahan caused the conviction in some way, and she used a fire as a metaphor: If two fires had joined together and burned a barn, and one of the fires was started by a match, then the person who who lit the match could be held responsible for the barn fire.

But the Appeals Court, while dismissing Callahan’s other statements that he did nothing wrong, argued that jurors would have to come to a more direct conclusion that Callahan’s wrongdoing had led to Drumgold’s conviction and that he would not have been convicted any other way.

Milton J. Valencia can be reached at MValencia@
globe.com
. Follow him on
Twitter @MiltonValencia.
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