Conte Denies Victim's Allegations of Pressure
By Gary V. Murray, Telegram & Gazette Staff
Originally published in the Worcester Telegram & Gazette, August 3, 2001
WORCESTER — While his office must bear some responsibility for the fact that convicted rapist James J. Kelly has remained free since an aborted appeal five years ago, District Attorney John J. Conte said yesterday that criticism of prosecutors by a lawyer for the rape victim is unjustified.
Mr. Conte broke his silence on the subject for the first time since the Telegram & Gazette reported in March that Mr. Kelly, 72, had yet to serve a day of a state prison sentence imposed in 1988. The district attorney said the delay is largely attributable to missing or incomplete transcripts that have prevented the appeal from proceeding.
He denied assertions by Wendy J. Murphy, a lawyer for rape victim Debra Hagen, that prosecutors previously pressured Ms. Hagen to agree to a reduction of Mr. Kelly's sentence to probation, and that an assistant district attorney made veiled threats to discourage Ms. Hagen from attending a court hearing.
Mr. Conte said the main reason Mr. Kelly has remained free is that two judges have concluded that he may have a meritorious appeal—not, as Ms. Murphy has suggested, because Mr. Kelly's lawyers say he is too ill to go to prison.
"She thinks the issue is the man's health. It's not. She's confused as to what the real issue is. The issue is whether or not he had a fair trial," Mr. Conte said.
Mr. Kelly, a Leominster resident, was sentenced to 10 years in Concord State Prison in 1988, after a Worcester Superior Court jury convicted him of raping Ms. Hagen in 1985.
Judge Herbert F. Travers initially stayed the execution of Mr. Kelly's sentence for health reasons, and later extended the stay until a motion for a new trial was decided. Judge Travers denied the motion in 1992 and, according to Mr. Conte, kept the stay in effect pending Mr. Kelly's appeal of the denial of the motion.
Ms. Murphy contends the stay expired when the motion was denied and that Mr. Kelly should have been incarcerated then.
According to a transcript of a 1992 hearing on the new-trial motion, Judge Travers said he was not inclined to revoke the stay of Mr. Kelly's sentence even if he denied the motion because he believed "the matter is a serious one that is worthy of consideration by an appellate court …"
The motion was based on a claim that Mr. Kelly was not effectively represented by his trial lawyer.
In a statement to police that was suppressed prior to trial, Mr. Kelly said he had consensual sex with Ms. Hagen. His request for a new trial was based on a claim that his trial lawyer, John Longo, failed to inform him that the suppressed statement could be used to impeach his credibility if he gave trial testimony that conflicted with his earlier statement.
At the trial, Mr. Kelly said he did not have sex with the victim.
The court clerk's office apparently encountered some difficulties in assembling the record of the case so that it could be forwarded to the Appeals Court, court records suggest, but at some point the appeal was initiated.
In October 1994, the Appeals Court stayed the appellate proceedings for about 18 months based on representations by Elliot D. Lobel, Mr. Kelly's new lawyer, that accounts of certain pretrial proceedings that were not transcribed were necessary to his appeal.
And in April 1996, the Appeals Court vacated the entry of the appeal as "premature" because of "deficiencies in a transcript of a proceeding." The Appeals Court sent the matter back to Superior Court until the flaws in the record were rectified.
Mr. Conte said it was the responsibility of the court clerk's office to assemble the record for appellate review.
"If the record has been available like it should have been, this would have gone to the Appeals Court in its ordinary course," he said.
Efforts to reconstruct the record were undertaken by the defense and prosecution lawyers, but were stymied because of missing and inaudible tapes, according to Mr. Conte. A prosecution affidavit indicates that those efforts came to a halt in 1997.
"Somehow or other, it got put on the back burner—and it shouldn't have been," he said. He blamed the oversight partly on administrative changes in his Appellate Division at the time.
The case "fell through the cracks," Mr. Conte acknowledged, accepting responsibility for the prosecution's failure to properly monitor defense efforts to get the appeal back on track.
It was not until earlier this year, during an internal review of pending cases, that prosecutors realized Mr. Kelly's appeal remained in abeyance, according to the district attorney.
In February, Mr. Conte's office filed a motion asking that the stay of Mr. Kelly's sentence be revoked.
That motion was denied June 26 by Judge Daniel F. Toomey. In his ruling, Judge Toomey referred to Mr. Kelly's health problems, but also noted that Mr. Kelly was still pursuing his appeal and had filed another motion for a new trial with the court.
"The court is not insensitive to the suffering and frustration of the victim. After all, the defendant does stand as a convicted rapist who has, perhaps unfairly, avoided punishment for an inordinate time," Judge Toomey wrote.
"Nevertheless, the court is persuaded that this is not the time to make up for the failings and omissions of the past by careening down the tunnel to incarceration when we are unclear whether the conviction, upon which the incarceration rests, will survive," he added.
After the motion to revoke the stay was filed in February, defense lawyers proposed waiving what they felt was a strong case for an appeal if prosecutors would assent to the new trial motion and agree to recommend that Mr. Kelly be placed on probation after a guilty plea, according to Mr. Conte.
He said his office had a legal obligation to inform Ms. Hagen of the offer, but never pressured her to go along with it.
He also denied Ms. Murphy's suggestion that Assistant District Attorney Kathleen M. Dellostritto was trying to discourage Ms. Hagen from attending a court hearing last month, when the prosecutor advised the victim of an outstanding default warrant against her for an unrelated case.
"We have great feeling for the victim. We feel terrible about this whole thing and want to bring it to a conclusion," Mr. Conte said.
He added that his office would have sought to revoke the stay of Mr. Kelly's sentence sooner had he been aware that the case remained in limbo and that prosecutors would "argue vigorously" against a new trial.
He said Assistant District Attorney Joseph J. Reilly III recommended a 20-year sentence for Mr. Kelly after he was convicted, and opposed the stay of Mr. Kelly's sentence in 1988 and again in 1991.
Ms. Murphy yesterday reiterated her opinion that Mr. Kelly's reported health problems, which his lawyers say include a heart condition and recent hip surgery, were a major factor in Judge Toomey's decision to allow him to remain free. She claimed published photographs and other evidence indicate Mr. Kelly is in reasonably good health.
Ms. Murphy also said she still believed there was little merit to Mr. Kelly's claims of ineffective assistance of counsel and questioned the prosecution's failure to appeal Judge Toomey's ruling.
She noted that she has filed a petition with the state Supreme Judicial Court requesting that Ms. Hagen be granted legal standing in the case to ask the SJC to overturn Judge Toomey's ruling.
"You don't just keep appealing for the sake of appealing. We're trying to bring this thing to a head," Mr. Conte said.
"The most important thing to me is to have an outside, objective court take a good look at what they see," Ms. Murphy said of her petition. "Everything that went wrong with this case is related to Kelly remaining free."
Mr. Kelly's lawyers have declined to comment on the case.
Despite Mr. Conte's claims to the contrary, Ms. Hagen said again yesterday that she was pressured by Mr. Reilly to agree to probation for Mr. Kelly when the case was revived this year.
"He didn't strong-arm me; I never said that. But it was definitely pressure," she said.
Ms. Hagen said she believed Ms. Murphy's efforts had helped move the stalled case along. Expressing a sense of frustration, Ms. Hagen said her greatest desire is to get the case resolved.
"I honestly don't know how much longer I can put my family through this," she said.
