Mass. town to pay $3.4m for unjust conviction

DNA test freed man after 18 years in jail. Crooked cops. Corrupt evidence believed and exculpatory evidence hidden

The town of Ayer and five of its insurers have agreed to pay $3.4 million to settle a civil rights lawsuit filed by the estate of the late Kenneth Waters, who spent more than 18 years in prison for a murder he did not commit before his sister earned a law degree and helped free him through DNA evidence.

Barry C. Scheck, a founder of the Innocence Project based at the Benjamin N. Cardozo School of Law in New York and one of the lawyers representing the estate, disclosed the amount of the settlement yesterday after a brief hearing in US District Court in Boston about the status of the case.

The lawsuit, which was scheduled to go to trial next week, accused Ayer police of coercing false testimony to convict Waters and withholding evidence that could have cleared him. A sixth insurance company, Western World Insurance Group, has declined to settle, but negotiations are continuing.

Waters’s sister, Betty Anne Waters, whose crusade on behalf of her brother is the subject of a recently completed movie in which she is portrayed by two-time Academy Award winner Hilary Swank, said the agreement vindicated her years spent fighting to free Kenneth Waters. “It’s been half of my life, exactly,’’ Betty Waters, 54, of Middletown, R.I., said after the brief hearing. “I can’t quite feel that it’s over. It’s been a long 27 years.’’

Kenneth Waters was freed from prison in March 2001, and the Middlesex district attorney’s office dropped the charges against him. But he enjoyed only six months of freedom. He died on Sept. 19, 2001, after he fell on his head from a 15-foot wall in Rhode Island while taking a shortcut to a restaurant. “Of course, I wish he was here,’’ Betty Waters said, fighting back emotion. “That’s part of the sadness of all this. I know he would have been very pleased with how this worked out.’’

Ayer’s town administrator, Shaun A. Suhoski, said the lawsuit was “a very complex case and, through the very diligent efforts of our legal team, with close oversight of the Board of Selectmen, it appears we’ve reached an acceptable endpoint in this litigation.’’ None of the defendants has admitted liability.

Joseph L. Tehan Jr., a Boston lawyer who represented the town, told District Court Judge George A. O’Toole Jr. that the settlement was finalized Monday with the help of a mediator.

Kenneth Waters was convicted in 1983 of first-degree murder and armed robbery in the death of Katharina Brow. She was found on May 21, 1980, with more than 30 stab wounds, in her mobile home in Ayer. Waters; his girlfriend, Brenda Marsh; and two of her children, one of whom Waters had fathered, had been living in a house behind the mobile home.

According to the complaint filed by Betty Anne Waters, her brother had a solid alibi for his whereabouts when the killing occurred: He had been working a night shift at a local diner and then had a court appearance the next morning for an unrelated matter. Ayer police interviewed him after the killing, but filed no charges, and the case remained unsolved for 2 1/2 years.

In October 1982, a man who was living with Marsh approached Ayer police and said she told him that Waters had confessed to killing a woman in Ayer, according to the complaint. She also said she had washed Waters’s bloody clothes, he said. Ayer Police Chief Philip L. Connors and Officer Nancy Taylor-Harris interrogated Marsh. Although she initially denied that Waters had anything to do with the killing, Marsh ultimately relented and said he had come home drunk the morning that Brow was killed with a long, deep scratch on his face, according to the complaint. Police arrested Waters, even though officers had examined him after the killing and found no wounds.

The complaint alleged that Waters was indicted based in part on false testimony before a grand jury by Taylor-Harris that fingerprints found at the crime scene were smeared and useless to investigators. In fact, authorities found a bloody fingerprint on a broken toaster and a partial print on a kitchen faucet that was still running when Brow’s body was discovered. Taylor-Harris knew that Waters had been excluded as the source of the prints, the complaint alleged. Waters was convicted by a Middlesex Superior Court jury and sentenced to life in prison.

“This is as bad as it gets,’’ Scheck said yesterday of the wrongful conviction. “Prison is bad. Being innocent in prison is much worse.’’ Waters attempted suicide at least twice behind bars, suffered panic attacks, and contracted hepatitis C, Scheck said.

Both Connors and Taylor-Harris have retired from the Ayer police, according to an assistant to the current police chief, William A. Murray, who could not be reached for comment.

Determined to win her brother’s freedom, Betty Anne Waters, a mother of two with a GED, worked as a waitress and bartender to pay her way through Rhode Island College. She attended Roger Williams University School of Law and became a lawyer at the age of 40. She then began representing her brother and started searching for evidence to clear him.

In the late 1990s, after begging a court clerk to scrounge through a courthouse basement, she found it: a sample of blood believed to be of the perpetrator’s, which was taken from evidence at the crime scene. It had been kept in a yellow cardboard box. Prosecutors agreed to test the evidence, and the results showed that Kenneth Waters’ DNA did not match the sample.

If Kenneth Waters’s estate and the last insurance company cannot reach an agreement, O’Toole plans to hold a brief trial July 23 on damages that the company might have to pay.

Original report here



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