Metro

Wrongly convicted in Mass.? Good luck getting compensation

Kevin O’Loughlin.

Jenifer McKim

Kevin O’Loughlin.

Kevin O’Loughlin was 20 years old in 1983 when he was convicted of raping an 11-year-old girl in Framingham, a crime he always said he did not commit. He spent nearly four years behind bars, enduring violent assaults in a prison society that, O’Loughlin said, had “no mercy on suspected child molesters.”

He went on to build a new life in Texas where no one knew about his past, but his marriage fell apart after his wife found out.

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Finally, last year, in a remarkable reversal, prosecutors dropped the charges against him. They had found evidence pointing to another suspect they described as bearing “a striking facial resemblance” to O’Loughlin — and who told police he was “99 percent sure” he committed the crime.

Now, O’Loughlin is learning firsthand how difficult it is to win any of the compensation — up to $500,000 — paid by the state to people who are wrongly convicted.

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Having the charges against him dropped is not enough to qualify, he has learned. The 12-year-old statute on compensation requires O’Loughlin and other plaintiffs to prove their innocence by “clear and convincing” evidence, a standard not easily met in a case like his.

Twenty months later, he’s still wrestling with the state attorney general’s office.

Attorney General Maura Healey said her office is merely abiding by the law’s evidence requirements. A prosecutor’s about-face isn’t enough, so Healey’s office is preparing to take the case to trial.

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If O’Loughlin wins, he would join only 27 men and women who have received money under the 2004 law, collecting an average of $374,233 each. Only 63 people have tried to use the law to collect for wrongful conviction in Massachusetts, even though the number of defendants whose convictions have been reversed number in the hundreds from the Annie Dookhan drug lab scandal alone.

In allowing compensation of up to $500,000, Massachusetts is in the middle of the pack among the 31 states that have similar laws, according to the New York-based Innocence Project. But the state has relatively restrictive eligibility standards, said Amol Sinha, the project’s state policy advocate. For example, the law bars payment to people who originally pleaded guilty to their crime and those whose cases were overturned because of a legal matter like the suppression of evidence that doesn’t point to innocence.

Sinha said Massachusetts is among the states that have the highest standard of proof. Some, he said, have no clear evidentiary standard, while others require plaintiffs to show only that a preponderance of evidence points to innocence. In Massachusetts, “you may be preventing people who are actually innocent from compensation,” Sinha said.

To defense lawyers and other advocates, O’Loughlin’s case speaks to a law that isn’t working well. They say it takes too long and sets the bar too high for compensation, forcing many to settle rather than fight a costly legal battle.

State Senator Pat Jehlen, the Somerville Democrat who sponsored the law, said she’s considering seeking changes following a growth in complaints.

“There is a saying, justice delayed is justice denied,’’ Jehlen said after learning about O’Loughlin’s quest for compensation. “I feel pretty strongly we owe them — people wrongfully or erroneously incarcerated. It’s a moral debt.”

O’Loughlin was a 19-year-old high school dropout on April 19, 1982, when, by his account, he set out on foot at about 10 p.m. to attend a party and stopped along the way to buy a Mountain Dew.

The rape he was accused of had occurred around 8 p.m., and Framingham police were scouring the town for the attacker.

The victim had described a terrible crime, in which she was seized while playing hide-and-seek. Her assailant held a jackknife to her neck, threatened her with death, and bound and gagged her with socks. He dragged her through neighbors’ yards and sexually assaulted her in multiple locations. She ran home naked from the woods where he left her.

The rapist, she said, was thin, about 5 feet 10 inches tall, with dark hair that was parted down the middle and came over his ears. O’Loughlin, at 5 feet 11, about 150 pounds, had brown hair of the same style and length.

Spotted by police, O’Loughlin was stopped about a mile from the woods, Mountain Dew in hand. He was carrying a jackknife.

O’Loughlin was known to police. Several months earlier, he admitted that he held up a convenience store with a friend, and he was free on bail that night.

Soon, a police cruiser pulled up and shone its lights on him. In the back seat was the rape victim. She said she thought O’Loughlin was the rapist but wanted to hear his voice so she could be sure.

O’Loughlin said, “I have been home all night,” according to trial transcripts. The girl said it was the voice of her attacker. O’Loughlin was arrested and later charged.

Inconsistencies, however, began emerging in the girl’s story, according to a 2014 court filing by the Middlesex district attorney’s office. In pretrial hearings, she said she did not get a good look at her assailant’s face. At trial, she said his voice wasn’t distinctive.

She said her attacker’s knife was red, although O’Loughlin’s knife had a brown handle. She said the rapist was wearing a sheepskin coat — unlike O’Loughlin when he was arrested. However, she still testified that O’Loughlin was her attacker.

O’Loughlin’s sister Kathy Beevers, then 16, took the stand and said she was with her brother all evening, but it did him no good. O’Loughlin was found guilty and sentenced to four to six years in prison.

His defense attorney, Edward Harrington, now 83 and a semiretired US District Court judge in Boston, said he was never more sure of a client’s innocence.

O’Loughlin “was identified by a young woman on the basis of his voice,’’ he said.

After the trial, Harrington wrote letters to the police urging them to investigate other potential suspects. He appealed, claiming police prejudiced the victim’s identification of O’Loughlin by bringing a single suspect to face her rather than setting up a photo array or lineup. The appeal was denied in 1984.

In prison, O’Loughlin said he was attacked repeatedly. One assault broke his nose, and in another, he was pushed down the stairs. He was moved from one prison to another after his life was threatened.

“I never thought I’d get out alive,’’ he said.

The conviction took a toll on the whole family. His mother, Connie, now 78, said she became a recluse — afraid of disapproving looks on the street. She remembers a phone threat to kill her children. O’Loughlin’s sister said she began missing classes to attend trial hearings, was stigmatized at high school, and eventually dropped out.

When her brother was released, he was a changed man. His family said he was distrustful. He couldn’t walk down the street alone for fear of getting arrested.

He moved to New Hampshire, then Texas, trying to escape his past. He fell in love and married but couldn’t find the words to tell his wife or two daughters about the conviction.

But he felt forced to tell his wife after getting a call from State Police in 2004 telling him that he had to register as a sex offender. Although he persuaded the state to waive the requirement in light of his decades of crime-free living, the scare prompted him to finally tell his wife, which he believes put them on a path to divorce.

“The trust was gone,’’ he said.

Then, in 2012, a Framingham police detective named Kevin Slattery contacted the Middlesex district attorney’s office and indicated that police may have made a mistake, court records show. He had discovered a man who looked like O’Loughlin and had been found guilty of several sexual offenses before and after the 1982 rape.

The man, who was 17 at the time of the rape, lived about 2 miles from the victim’s home, and he matched O’Loughlin’s build and coloring. Two years earlier, he had been arrested after exposing himself to a 5-year-old girl and a middle-aged woman on the same night, and he had a knife in his possession when arrested.

That man was later sentenced to 15 to 30 years in jail after pleading guilty to sexually assaulting a 14-year-old Framingham girl in 1984. In that case, he had threatened the victim with a knife and used a sock to gag her — reminiscent of the victim’s testimony against O’Loughlin, according to the district attorney’s court filing.

The man was arrested again in 2011, soon after being released from prison, and was sentenced to 10 years of probation after pleading guilty to having nude photos of adolescents on his computer. Prosecutors didn’t identify the man in the district attorney’s recent filing.

When Slattery interviewed the man at the Framingham police station in 2013, prosecutors said in their filings, he “freely spoke” and said he was “99 percent sure” he committed the 1982 rape that O’Loughlin was convicted for, although he could not remember it because of a history of drinking.

Contacted by the Eye, the man acknowledged he’d been interviewed by Slattery but said he had been misquoted and denied committing the crime. Because so many years have passed, no one else can be charged for the crime under the statute of limitations.

The victim in the case, also reached by The Eye, said O’Loughlin “was not wrongfully convicted.” She declined to comment further and asked for privacy.

A committee of Middlesex County prosecutors that examines potentially flawed convictions took on O’Loughlin’s cause as its first case. Their findings were summarized in a 2014 court filing that found a reasonable doubt of his guilt. “Justice may not have been done in this case,” the filing said.

The court initially agreed to grant O’Loughlin a new trial, but prosecutors dropped the charges. In March last year, O’Loughlin sued the state under the compensation law.

Healey declined to comment further on O’Loughlin’s case. But the attorney general’s court filings say he wouldn’t be able to prove his innocence “by clear and convincing evidence” and thus is not eligible for compensation.

The state also said it would seek a deduction for any funds that O’Loughlin receives in other legal actions based on his conviction. O’Loughlin has sued the Framingham Police Department, contending that it should have known another man had committed similar crimes in the area but failed to disclose the information. Framingham police deny the allegation.

After almost two years of legal wrangling, O’Loughlin can’t fathom why the state is still fighting.

“I don’t think they have any right to put me through any more,’’ he said.

The Eye is the online news site of the New England Center for Investigative Reporting, based at Boston University and WGBH Public Radio. Todd Wallack of the Globe staff and Eye interns Emily Hopkins, Rachel Siegel, and Will Norris contributed to this report. Jenifer McKim can be reached at jenifer.mckim@necir.org. For more on this story, go to eye.necir.org.
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