Lawyers Weekly 1/23/2017

Making a case for reopening the Eddie O'Brien Case

by Robert V. Ward, Jr.

           In the recently published book "The Politics of Murder: The Power and Ambition Behind ‘The Altar Boy Murder Case,’” first-time author Margo Nash makes a compelling case for Eddie O’Brien’s innocence. At the very least, Nash persuaded me that Janet Downing’s murder investigation ought to be reopened, and O’Brien should have a new trial.

Downing, a 42-year-old mother of four, was found stabbed to death in her Somerville home in July 1995. Hours later, 15-year-old O’Brien, the best friend of one of Downing’s sons, was identified as a suspect.

The book offers O’Brien’s conviction as an example of what can go horribly wrong when politics and the criminal justice system collide.

Very well crafted, “The Politics of Murder” is a “CSI: Introduction to Forensic Evidence Manual”; however, it reads like an ole’-fashioned whodunit.

As Nash tells the story, the justice system ran roughshod over O’Brien’s right to the presumption of innocence. His conviction was a foregone conclusion.

The author, a Boston area attorney, first met O’Brien at his Somerville District Court arraignment on July 26, 1995, during which she was appointed his guardian ad litem by Judge Paul Heffernan.

It was Nash’s job to help O’Brien navigate his way through the juvenile criminal justice system. The law assumed a young person such as O’Brien would need help in determining what was in his own best interests.

At O’Brien’s side from the beginning, Nash had a front-row seat to a flawed police investigation into Downing’s murder, the many court proceedings, and all the other legal machinations that culminated in “Little Ed’s” conviction for first-degree murder.

Nash believes and attempts to show how, under normal circumstances, it’s unlikely O’Brien would have even been a blip on police radar. O’Brien, who is white, was an altar boy from a good family. He had no history of violence and had never been arrested. His grandfather had been chief of police for the Somerville Police Department. In other words, O’Brien did not fit the stereotype of a bad seed.

But as Nash notes, things were far from normal at the time of Downing’s death and O’Brien’s prosecution.

District attorneys in Massachusetts rarely — as in almost never — spend their time in the courtroom prosecuting criminals. Generally, elected DAs are uber administrators; they delegate the function of prosecuting cases to their assistant district attorneys. In what was a significant departure from the norm, then-Middlesex County DA Thomas Reilly personally supervised the police homicide investigation into Downing’s death and subsequently tried the case against O’Brien.

Nash questions Reilly’s motive for taking on the O’Brien case. What made this case so special?

On Oct. 9, 1997, just eight days after the jury found O’Brien guilty of first-degree murder, Reilly announced his candidacy for attorney general.

Nash was justified in worrying about O’Brien getting a fair trial, particularly when you consider the fact that police never found the murder weapon and O’Brien’s conviction rested on circumstantial evidence.

Nash offers concrete examples of how the police and Reilly failed to follow-up leads that suggested someone other than O’Brien killed Downing. She calls the leads inconvenient truths for the investigative team.

Also singled out for criticism in “The Politics of Murder” is O’Brien’s lawyer, Robert George. In Nash’s opinion, George, a veteran criminal defense attorney, performed poorly. He failed to obtain independent DNA testing on the evidence, and even worse, didn’t appear to fully grasp the nuances of the science of DNA, according to Nash. That, coupled with other oversights and omissions, proved fatal, leaving O’Brien essentially defenseless, the book suggests.

Nash does a terrific job of retelling what is a complicated, compelling story in “The Politics of Murder.”  The book is an excellent read for those who gravitate to crime stories, as well as for those who care about the pursuit of justice.

Janet Downing and her loved ones deserved a comprehensive and thorough investigation of her death by police and the DA. Under both the federal and state constitutions, O’Brien was entitled to a fair trial. After reading “The Politics of Murder,” you come away thinking that, at the very least, government officials failed everyone involved in this tragedy.

Robert V. Ward Jr. is of counsel to the Law Office of Kenneth V. Kurnos. He was founding dean of the University of Massachusetts-Dartmouth School of Law.