Boston Globe Update 1/24/04:  State Admits Fingerprint No Match; Conviction Vacated

Judge sets bail in DNA case

New trial sought in '97 shooting of Hub officer

By Jonathan Saltzman, Globe Staff, 1/22/2004

Supporters of Stephan Cowans had hoped the 33-year-old Roxbury man would taste freedom yesterday, becoming at least the seventh man since 1997 to be freed after successfully challenging a conviction on criminal charges brought by Suffolk County prosecutors.

Cowans wasn't immediately freed, but friends and family are scrambling to raise the $7,500 cash bail set by a Superior Court judge who ordered a hearing to consider whether Cowans deserves a new trial on charges that he shot a Boston police officer in 1997.  [Note:  Bail was posted and Stephan was released on 1/23/04.]

In a courtroom packed with supporters of Cowans -- among them three Massachusetts and Rhode Island men recently freed from prison based on new evidence, including DNA analysis -- Superior Court Judge Peter M. Lauriat said recently-analyzed DNA evidence in Cowans's case raised significant questions about whether Cowans shot and wounded a Boston officer with the officer's own service pistol.

At the request of Suffolk Assistant District Attorney David E. Meier, Lauriat agreed to suspend Cowans's sentence of 30 to 45 years in state prison until a hearing March 3 on a defense motion for a new trial. After setting bail, he ordered Cowans transferred from the Souza-Baranowski Correctional Center in Shirley to the Nashua Street Jail in Boston.

Cowans, who wore eyeglasses, gray prison garb, and a serious expression, said nothing during the proceeding and merely exhaled as he was led away in handcuffs. His grandmother, Laurel Leonard, who pressed her palms together as if in prayer at the start of the hearing, said afterward that she was ''a little let down, but I'm still hopeful.''

She had reason for mixed feelings. Meier said that if the court ultimately throws out the conviction, prosecutors intend to retry Cowans, saying that evidence presented at Cowans's 1998 trial is still ''extremely compelling,'' including a fingerprint lifted from a glass mug in a house where the gunman fled after shooting Sergeant Gregory Gallagher in the buttocks. Gallagher had pursued a man acting suspiciously around a nearby school and lost his gun in a scuffle with him.

Even so, Meier conceded in a memorandum to the court that the motion and the laboratory analysis of DNA on items recovered near the shooting scene ''raise serious issues . . . that may well cast real doubt upon the justice'' of the conviction.

A forensic DNA testing company, Orchid Cellmark, tested sweat from the brim of a baseball cap lost by Gallagher's assailant in the yard, as well as from a sweatshirt the gunman removed in a house he forced his way into on School Street in Roxbury. The lab also tested saliva from the rim of a glass mug in the house. The DNA evidence all came from the same individual, said lawyers for the New York-based Innocence Project, which is representing Cowans, but it wasn't him.

Some 140 people convicted of crimes across the country have been exonerated by DNA testing since 1989, said project lawyers, and Cowans would be the eighth person from Massachusetts.

In the past seven years, at least six men convicted of murder, rape, and other serious crimes in cases brought by the Suffolk district attorney's office have been exonerated or freed after the office acknowledged errors. Three of the exonerations came after lawyers for the prisoners presented new DNA evidence.

However, David Procopio, a spokesman for District Attorney Daniel F. Conley, who was not district attorney when any of the six men were convicted, insisted yesterday that ''there is absolutely no problem in the Suffolk district attorney's office.

''Rather than be criticized, this office, under District Attorneys [Ralph C.] Martin and Conley should be commended for its willingness to review potentially exculpatory evidence and act always in the interest of justice,'' Procopio said in a statement.

''Obviously, mistakes can occur,'' he added. ''But what speaks volumes is what you do when confronted by a potential mistake. That is perhaps the truest test of a prosecutor's commitment to justice. And this office, in those six cases in the past seven years, has passed that test with the highest marks.''

Prosecutors say that Cowans's left thumb print was found on a glass mug in the house that Gallagher's assailant forced his way into after the shooting. The man fleeing police asked for water and drank from the mug.

But Robert N. Feldman, one of Cowans's lawyers, said in court that fingerprint analysis is ''more of an art than a science'' and law enforcement officials may have made a mistake reading it. Regardless, he said later, ''When fingerprints and DNA clash, the DNA wins.''

Feldman said the district attorney's office obviously has doubts about its case or it would not have made the request to suspend Cowans's sentence or agreed to relatively low bail.

Among Cowans's supporters at the hearing were three men recently freed as a result of DNA findings or other evidence that proved they were wrongly convicted: Dennis Maher, who served 19 years in prison after being charged with two rapes and an attempted rape in Lowell; Shawn Drumgold, who spent 15 years in prison after being convicted of killing a 12-year-old girl in gang crossfire in Boston; and Jeffrey Scott Hornoff, a Warwick, R.I., policeman who spent more than six years in prison for the murder of a former lover.

Hornoff, who was freed after another man confessed to the woman's slaying, said he knows firsthand what Cowans must be feeling being so close to freedom. ''I'm just hoping that he keeps his strength up and keeps focused, and the family continues what it's been doing,'' he said.

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