Rapist Who Avoided Prison Makes Appeal For New Trial
By Jack Sullivan
Originally published in The Boston Herald, February 7, 2002
A Leominster man who has avoided prison since being sentenced in 1988 to 10 years for brutally raping his best friend's daughter asked the state's Appeals Court yesterday to grant him a new trial because he wasn't told his admission to police could be used against him on the stand.
Lawyers for James J. Kelly, 72, argued before the three justices that Kelly's original attorney botched the defense by letting Kelly take the stand and get caught in a lie by telling jurors he never had sex with Debra Hagen.
Prosecutors then used Kelly's statement to arresting officers that he had consensual sex with Hagen, which had been suppressed until he took the stand, to contradict his testimony.
"Mr. Kelly had highly ineffectual assistance of counsel,'' attorney Nancy Dolberg told the justices. "(Kelly) was not informed the alleged statement could be used for impeachment.''
But Worcester Assistant District Attorney Brian Cann said the case against Kelly was so strong he chose to testify in his own defense even if it meant contradicting himself on the stand. "He told the police it was consensual. He told the jury nothing happened,'' said Cann. "Taking the oath before you testify is swearing to tell the truth.''
Kelly, who did not attend yesterday's hearing, was convicted of raping Hagen in October 1985 after driving her to a cemetery under the guise of visiting his father's grave. Kelly told Hagen, who was 27 at the time, he had a gun and forced her to have sex.
When she got home, Hagen told her husband, who called the police. Hagen was taken to the hospital and a red mark on her neck where Kelly grabbed her was photographed and used as evidence.
Kelly, who was the best man at Hagen's parents' wedding and godfather to another of their children, told police he had consensual sex with Hagen. That statement was later suppressed even though Kelly was read his Miranda rights because it was made without benefit of an attorney. Believing the statement could not be used, Kelly took the stand in the trial and denied having sex with Hagen, opening the door for prosecutors to use the statement against him.
Since his conviction on rape and sexual assault, Kelly has managed to stay out of prison, claiming a variety of health maladies. In July, the Herald ran stories and photos showing Kelly doing household chores, walking unaided and smoking despite claiming cardiac problems.
In addition, there have been numerous unexplained delays and inaction by District Attorney John J. Conte's office to put Kelly behind bars despite calls and letters from Hagen and her attorney.
Yesterday, Cann told Justice R. Marc Kantrowitz, who asked why it took 15 years for the case to reach the Appeals Court, that lost transcripts, ill health on the part of many including Kelly and years of inattention by prosecutors combined to cause the delay. "This is a 'Perfect Storm,' '' said Cann, referring to the book and movie that described a confluence of events that created the storm. "Whatever could go wrong, did go wrong.''
But outside the court, Hagen remained angry about the delay.
"It wasn't the 'Perfect Storm,' '' said Hagen, who came from Florida with her mother for the hearing. "It was the perfect screw-up.''
Hagen, who admitted she was nervous about the possibility of seeing Kelly again, said it was difficult listening to the account of events with her mother by her side as well as hearing Dolberg claim she contradicted herself during the trial. "I swore to tell the whole truth and I did tell the whole truth,'' said Hagen. "I said things that were difficult. My parents were there and it was hard.''
Hagen, who said she still has trouble sleeping, said she has gone public to help other rape victims.
"It's almost too late for me,'' she said. "I know deep down I'm probably not the first person he did this to but I can guarantee I'm the last.''
