February 27, 2003

  By Jennifer Kavanaugh

MARLBOROUGH -- The city now unwillingly stands in the legal spotlight, facing a $10 million lawsuit and questions about tactics its police officers used 16 years ago to obtain a rape conviction.

Former resident Eric Sarsfield, now 39, served 10 years in prison for a 1986 rape. After his release, a DNA test cleared him in 2000. He is suing the city for civil rights violations, saying police faked evidence and coerced the victim into saying he attacked her on Pleasant Street.

 "I was just kind of shocked when I read about (the lawsuit) in the newspaper," said City Council President Dennis Hunt. "I was even more surprised when I saw who the lawyer was. He's probably one of the biggest attorneys in the country."

 Barry Scheck, best known for representing O.J. Simpson and for using DNA evidence to clear suspects, has signed on to Sarsfield's suit. He joins Brookline attorney George Garfinkle, who for free began representing Sarsfield while he was still in prison in 1992.

 Both lawyers say Sarsfield's case is ideal to illustrate the problem of wrongful convictions. They say Sarsfield will be a star witness, an "everyman" who will make the public sympathetic to the issue.

 "People comfort themselves by saying that something like this couldn't happen to me, only someone with a criminal record," Scheck said. "You can't say that about Eric Sarsfield. If this can happen to Eric Sarsfield, it can happen to anybody."

 Three of four police officers named in the suit have retired. City officials said they haven't received a copy of the suit and declined comment. Hunt said it's too soon to draw conclusions.

 "We need more information before we start discussing what  Marlborough's role was in it," Hunt said. "Unfortunately for us, and for a lot of people involved in this, it will make their lives uncomfortable for a while. But I'm sure we'll get through this, and hopefully, we'll find out that everything was on the up and up in Marlborough."

 Garfinkle became Sarsfield's lawyer in 1992, after he had lost his appeal and was imprisoned at MCI Cedar Junction in Walpole. Garfinkle said many prisoners claim innocence, but he became convinced that Sarsfield was telling the truth when he appeared before the parole board in 1996, and refused to admit to the rape, even though he would have gotten out if he apologized.

 Sarsfield did the same in 1997 and 1998. At one point, Garfinkle said, he told Sarsfield to say he was sorry and get out. Sarsfield said no.

 "He said to me, `I may be behind these walls, but I know in my mind that I'm a free man because I'm innocent. But if I lied, I may be free and walking around, but I wouldn't be free in my mind,'" Garfinkle said.

 Even though he still refused to apologize, he was released on parole in 1999 and put on the state's sex-offender registry.

 A year later, Garfinkle won a four-year battle to conduct DNA tests on physical evidence from the case.

 At the 1987 trial, prosecutors had said the rape evidence had deteriorated too much to be tested. In 2000, the evidence was still stored in the Middlesex County criminal clerk's office.

 The tests concluded that Sarsfield wasn't the rapist. His conviction was thrown out.

 But even after that, the stigma followed Sarsfield. Garfinkle struggled to erase his client's criminal history and get him off the sex-offender registry. That took two years, and as recently as last summer, Sarsfield was threatened with arrest for not renewing his registration as a sex offender.

 Since getting out of prison, Sarsfield has worked as a carpenter and lives in Bolton. He recently got married. Garfinkle attended the wedding.

 "I think he'd like to go to college, have all the same chances everyone has," Garfinkle said. Sarsfield, who couldn't be reached for this story, "wants to do all the things we all want to do, own his own house, have kids."

 Sarsfield and Garfinkle have also appeared at legal forums to discuss wrongful convictions. They met Scheck at a Massachusetts Bar Association forum. Scheck said Sarsfield's attitude led him to take the case.

 Scheck is co-founder of the Innocence Project, which has worked since 1992 to release wrongly convicted people through DNA testing. Its Web site says it has cleared 123 people in the United States since then.

 A few months ago, the issue of wrongful convictions drew attention in Illinois, where outgoing Gov. George Ryan commuted every death-row sentence in the state.

 Ryan said a commission had found so many problems with that state's capital punishment procedures that he felt obliged, since the end of his term meant he had no more time to investigate each conviction, to release all of those on death row.

 And in New York, five jailed men recently went free when DNA testing proved they weren't involved in the infamous 1989 rape of a woman, known as the Central Park Jogger case. Another man has confessed to the attack.

 According to the Center on Wrongful Convictions at the Northwestern University School of Law in Illinois, inaccurate eyewitness testimony is the leading cause of wrongful convictions. Scheck said he hopes suits, such as the one he and Garfinkle have prepared against Marlborough, make police and prosecutors take note.

 "We need them to take these problems more seriously," Scheck said. "And if they start losing enough of these cases, maybe they will."