Judge declares mistrial in Drumgold's civil case

Shawn Drumgold said he would seek a retrial on at least the surviving claim. 'My whole point was seeking justice in this case,' he said. Shawn Drumgold said he would seek a retrial on at least the surviving claim. "My whole point was seeking justice in this case," he said.
Email|Print|Single Page| Text size + By Jonathan Saltzman
Globe Staff / April 17, 2008

A federal judge declared a mistrial yesterday after a jury became hopelessly deadlocked over Shawn Drumgold's sole surviving civil rights claim against Boston police, who he said railroaded him for the notorious killing of a 12-year-old girl.

Earlier in the day, US District Judge Nancy Gertner urged the jury to try to reach a verdict on Drumgold's claim against a retired detective whom jurors last week found violated his right to a fair trial in the 1988 shooting of Darlene Tiffany Moore.

But an hour later, after the jury had deliberated nearly two days on a question some lawyers predicted would lead to a relatively quick verdict, the jury foreman sent Gertner the following note: "We are hopelessly hung!" Minutes later, she declared a mistrial.

Drumgold and his lawyer promptly said they would seek a retrial on at least the surviving claim.

"My whole point was seeking justice in this case," Drumgold, 42, said, sitting in the courtroom next to his wife and brother. "If I have to go through it again, I'll go through it."

Susan M. Weise, the first assistant corporation counsel for the City of Boston, said the private legal team hired to defend the city had to analyze the outcome. But, she said, the city was not considering settling a case that had cost taxpayers $1.23 million in legal fees and expenses before the trial even started.

The mistrial ended a seven-week trial that cleared Timothy Callahan and Richard Walsh of 10 alleged civil rights violations but found that Callahan had violated Drumgold's right to a fair trial in an 11th claim. Jurors agreed with Drumgold's lawyers that Callahan had concealed that he gave an undetermined sum of cash to a prosecution witness before the man testified at the murder trial.

That witness, a former homeless teenager named Ricky Evans, testified in Suffolk Superior Court in 1989 that he saw Drumgold with a gun near the Roxbury street corner where Moore was later struck by stray bullets in an apparent gang-related shooting on the night of Aug. 19, 1988.

Evans recanted in 2003, saying he had made up his testimony after detectives fed him information and food, gave him cash, put him up at a hotel, and cleared up a handful of outstanding arrest warrants. His reversal and other allegations that law enforcement officials withheld evidence that could have cleared Drumgold prompted a state judge to throw out Drumgold's conviction and free him after he had spent 15 years in prison. But neither Suffolk prosecutors nor Boston police have exonerated him.

In the federal lawsuit, however, the jury was unable to decide unanimously whether the withheld evidence about the cash resulted in Drumgold's wrongful conviction and whether he deserved damages.

Immediately after the mistrial, the dozen jurors, many of them unsmiling as they left the courtroom, met behind closed doors with Gertner and lawyers on both sides to share their perspectives on the trial. But the jurors insisted that the lawyers keep the discussion private. The jurors left the courthouse in a group and declined to talk with a reporter.

Lawyers for both sides said they were sick about the thought of retrying a civil case that involves thousands of pages of testimony and documents stemming from his 1988 arrest, as well as dozens of witnesses. And the scope of a retrial, which Gertner said she could not hold until the fall, remains uncertain.

Gertner told both legal teams that the jury had cleared Walsh of wrongdoing and limited a retrial to the question of whether Callahan violated Drumgold's rights by concealing that he had given Evans cash.

But Drumgold's lawyers said it would be unfair of Gertner to let the city limit a retrial to that question.

"I don't believe that they're going to be allowed to pick and choose the parts of the jury verdict," Michael Reilly, one of Drumgold's lawyers, told a reporter. "They can't say, 'Let's retry what we lost and not retry what we won.' "

Gertner said she would let both sides make arguments in briefs by May 16.

During the civil trial, Drumgold's lawyers alleged that he was convicted because Boston police conspired to withhold and manipulate evidence after arresting Drumgold for a homicide that came to symbolize an epidemic of gang and drug-fueled street violence in the city.

Ten days after the shooting, the case seemed to have been solved when Drumgold, then 22, and a second man, Terrence Taylor, were charged with killing Moore. Drumgold was convicted the following year; Taylor was acquitted by the trial judge because no witness placed him at the scene.

Lawyers defending the city presented evidence suggesting that Drumgold's conviction might have stemmed from an ineffective defense by his lawyer, Steven Rappaport, or that prosecutors - not the police - might have withheld the evidence. (Prosecutors have immunity in federal civil rights lawsuits.)

Drumgold has sought $500,000 from the state under a Massachusetts law that compensates people who were wrongfully convicted. But the state attorney general's office is opposing that request. That case is expected to be heard early next year.

Jonathan Saltzman can be reached at

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