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Massachusetts Man’s Estate Resolves Wrongful Conviction Suit for $14.1 Million

In July 2009, the estate of a man who served over 18 years in Massachusetts prisons for a murder and robbery he did not commit reached a $3.4 million settlement with 5 of the 6 insurers for the Town of Ayer. Damages of $10.7 million were later assessed against the sixth insurance company. None of which will help Kenneth Waters, the wrongly-convicted former prisoner who spent almost two decades behind bars, because he died in 2001.

The story of Waters’ conviction and subsequent exoneration in the heinous murder of Katharina Brow is a drama that would make a compelling Hollywood movie – though it was a tragedy for everyone involved in the case.

Brow was found stabbed to death in her mobile home on May 21, 1980. She had suffered over 30 stab wounds; a struggle was obvious, as blood was found throughout the home. Robbery was determined to be the motive of the crime after it was learned that money was missing from Brow’s pocketbook and a ransacked linen closet.

Crime scene investigators were able to recover several latent fingerprints left in blood on a water faucet and a toaster, several strands of hair from Brow’s hand, and blood that presumably came from the person who killed her. Kenneth Waters’ name came up during the investigation into the murder, which occurred between 7:00 and 10:45 a.m. However, investigators were able to exclude him as a suspect.

Using time cards from the local diner where he was employed, Waters proved that he had worked a double shift and did not leave the diner until 8:30 a.m. with a waitress, who drove him home. Waters then changed clothes and attended a court appearance at 9:00 a.m. He did not leave the courthouse until 11:00 a.m.

Further, detectives examined Waters’ entire nude body and discerned that he had no scratches or injuries and thus could not have left blood at the crime scene. Waters also passed a voice-stress test, and the hair evidence excluded him. For the next 2 ½ years the case lay dormant.

In October 1982, based on a tip provided by Robert Osborne, a paid informant, Ayers Police Department (APD) chief Philip L. Connors and Nancy Taylor-Harris, an officer/dispatcher, began questioning Waters’ ex-girlfriend, Brenda Marsh. They told Marsh that if she did not corroborate Osborne’s claim that Waters had confessed to the murder, they would charge her as an accessory and she would lose her children.

Based upon Marsh’s falsified testimony, Waters was arrested on an affidavit sworn out by Taylor-Harris, who then did everything she could to convict him. Taylor-Harris not only falsely testified at grand jury proceedings and Waters’ criminal trial that only “smeared” fingerprints had been recovered, but she hid from both the defense and prosecution all logs, memos and other evidence related to the fingerprints – which would have cleared Waters – and his proven alibi defense.

Waters was convicted and sentenced to life. His motion for a new trial, appeal and petition for a writ of habeas corpus were all denied. Waters suffered terribly in prison; he tried to commit suicide several times and engaged in self-mutilation. He had anxiety and panic attacks, as well as severe depression. He contracted hepatitis C. A therapist who had counseled Waters noted with frustration, “It is difficult to help this man as all he wants to do is prove his innocence to me.”

Waters’ sister, Betty Anne, never gave up hope. A mother of two with a GED who worked as a waitress and bar-tender, she served as a paralegal for her brother’s attorneys and put herself through law school. She began representing Waters, and located the blood evidence from the crime scene in a box in a courthouse basement. She filed a motion that preserved the evidence. Betty Anne and the Innocence Project then obtained permission for DNA testing, which led to Waters’ exoneration. After 18 years, 5 months and 3 days, Kenneth Waters was released from prison on March 15, 2001. Sadly, he died just six months later due to a head injury resulting from an accidental fall.

An investigation by the State Police into Taylor-Harris’ malicious involvement in Waters’ case revealed how she had concealed the evidence that would have cleared him, not only during the prosecution but also during post-trial proceedings. Both Connors and Taylor-Harris have since retired from the APD.

Betty Anne, as the administratrix of Waters’ estate, filed a federal lawsuit against the Town of Ayer, Philip Connors and Nancy Taylor-Harris for her brother’s wrongful arrest, prosecution and conviction. The defendants did not contest their liability, and a $3.4 million settlement was reached with 5 of the town’s 6 insurers on July 13, 2009. The district court held a bench trial to determine damages against the sixth insurer, Western World Insurance Group, which had refused to settle.

In a September 17, 2009 ruling, the court awarded damages in the amount of $1,000 per day that Waters had been incarcerated, amounting to $6,729,000. The district court also awarded $1 million “for physical illnesses and injuries incurred during and because of his incarceration” and $3 million for “mental anguish, pain and suffering,” for a total of $10.729 million.

Representing the estate in the civil suit were New York-based attorneys Barry C. Scheck, Monica Shah, Robert N. Feldman and Deborah Cornwall of Nuefeld, Scheck & Brustin LLP, and Massachusetts attorneys Howard Friedman and Jennifer L. Bills of the Law Offices of Howard Friedman. See: Waters v. Town of Ayer, U.S.D.C. (D. Mass.), Case No. 04-cv-10521.

As to whether the story of Waters’ wrongful conviction and eventual exoneration might make a good movie, Holly-wood apparently thought it would. Betty Anne Waters, staring Sam Rockwell and Hilary Swank, is scheduled to be re-leased in theaters in 2010.

Additional source: The Boston Globe

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Related legal cases

Waters v. Town of Ayer

BETTY ANNE WATERS, as Administratrix of the Estate of KENNETH WATERS, Plaintiff, v. TOWN OF AYER, NANCY TAYLOR-HARRIS, and PHILIP L. CONNORS, Defendants.



2009 U.S. Dist. LEXIS 98741

September 17, 2009, Decided


O'TOOLE Click for Enhanced Coverage Linking Searches, D.J.

This is an action asserting claims under 42 U.S.C. § 1983 and state law by Betty Anne Waters as Administratrix of the Estate of her brother, Kenneth Waters (hereinafter "Waters"), to recover damages resulting from his wrongful arrest, prosecution, and conviction. After the defendants declared that they would not contest liability, a brief bench trial was held on the issue of damages. Testimony was received from Ms. Waters and Dr. Jerome Rogoff, a Board-certified psychiatrist. Certain medical records and other documentary evidence were also received.

Waters was arrested by the Ayer police on October 12, [*3] 1982, for a murder that had occurred in May, 1980. After a jury trial, he was convicted of the murder and sentenced to life imprisonment on May 12, 1983. A motion for a new trial was denied in 1985, and in 1987 his conviction and the denial of the new trial motion were both affirmed by the Massachusetts Supreme Judicial Court. A petition for a writ of habeas corpus filed in this Court pursuant to 28 U.S.C. § 2254 was dismissed on May 22, 1990. In early 2001, DNA testing of blood from the murder scene that inferentially belonged to the victim's assailant excluded Waters as a source of that blood. The test results tended not only to exclude him as the perpetrator but to imply that another person had in fact committed the crime. A new trial motion was granted, and the district attorney subsequently filed a nolle prosequi in the case. A few months later, Waters died in an accident.

The defendants' concession that their liability is uncontested supports and permits a finding that, acting under color of state law, they wrongfully deprived Waters of rights guaranteed to him by the Constitution of the United States. He was therefore wrongfully deprived of his liberty between the date of his [*4] arrest, October 13, 1982, and the date of his release from imprisonment, March 15, 2001, a period just shy of eighteen and a half years.

In Waters' case, this deprivation of liberty was not only harmful in its own right--denying him all the activities and relationships that normal life in the community entails--but also was specifically harmful to both his mental and physical health in substantial and, at times, life threatening ways. Dr. Rogoff, who reviewed Waters' prison records, especially including medical records, and interviewed family members, summarized his conclusions about Waters' health during his incarceration:

[T]here can be no doubt that Kenny Waters suffered miserably the entire time he was incarcerated. Not only did he respond to imprisonment by regressing to an infantile, dependent, whining, complaining and hypochondriacal state, he became self-mutilative and at times suicidal. He contracted hepatitis C in prison, and lived with the fear of death from it. He was symptomatic with it, as described [in Dr. Rogoff's written report]. He lived with chronic severe anxiety and extreme anxiety (panic) attacks, chronic frustration and guilt over the trouble and anguish he was [*5] causing his family, intermittent severe depression, a pervasive feeling of hopelessness and a constant and impotent rage. In other words, he lived the entire time from May 1983, to March, 2001, in a state of abject misery and profound unhappiness and anguish, deprived of just about every joy, satisfaction and contentment an ordinary life might have provided.

(Pl.'s Ex. 2 at 9.) Dr. Rogoff's testimony, which I credit, explained and supported these conclusions with specific reference to Waters' prison medical records.

The records reflect that Waters' anguish was fed by his frustration with being imprisoned despite the fact of his innocence. At one point a therapist noted Waters' preoccupation with his attempts to reverse his conviction and said, with his own note of frustration, "It is difficult to help this man as all he wants to do is prove his innocence to me." (Pl.'s Ex. 1(a) at S621-22.) The records also suggest emotional reactions related to events in the course of the case. For instance, in mid-1985, during the time his first new trial motion was pending and after it was denied, he experienced repeated panic attacks. (Id. at S104, S106.) Perhaps more dramatically, after Wasters' [*6] habeas petition was dismissed, a prison mental health service progress note dated May 29, 1990, reported his despair:

Pt. is finally past stage of being angry--is finally at the stage where he feels he should try to kill self . . . . Is more hopeless about legal matters . . . . Decided the struggle is over--panic is about dying here in prison--at least if he's dead, he'll no longer hassle his family.

(Id. at S636.)

Waters suffered physically as well while in prison. As Dr. Rogoff noted, his depression and anger led him not only to make several suicidal gestures but also to commit various acts of self-mutilation. In addition, Waters was diagnosed with hepatitis C, which he contracted while in prison. For various reasons, including his emotional state, effective treatment for his hepatitis C was delayed and he suffered unnecessarily as a result.

Dr. Rogoff's testimony was confirmed by that of Betty Anne Waters, who described the dramatic difference in Waters' dark and angry emotional condition during his imprisonment compared with the generally optimistic and upbeat personality he had previously displayed.

Placing an economic value on all this harm is not a matter of precise calculation. See [*7] Limone v. United States, 579 F.3d 79, 2009 WL 2621536, at *24 (1st Cir. 2009) (stating that "there is no scientific formula or measuring device which can be applied to place a precise dollar value on matters such as restraint of freedom, fright, anxiety, loss of face, or emotional scarring") (quoting Wagenmann v. Adams, 829 F.2d 196, 216 (1st Cir. 1987)). "In the final analysis, it is for the trier of fact to resolve the difficult questions of quantification and monetization that lurk in the penumbra of cases such as this." Id. In this case, the task is made more difficult by the non-adversarial and relatively truncated damages assessment hearing that resulted from the settling defendants' decision not to participate actively in the hearing.

The plaintiff has urged the Court to follow the lead of other courts, including the district court opinion in Limone, and employ a benchmark in the range of approximately $ 1 million per year of unjust imprisonment. See, e.g., Limone v. United States, 497 F. Supp. 2d 143, 243-45 (D. Mass. 2007) (compiling cases and awarding $ 1 million per year of imprisonment); Sarsfield v. City of Marlborough, No. 03-CV-10319-RWZ, 2006 WL 2850359, at *1 (D. Mass. Oct. 4, 2006) [*8] (awarding $ 13 million for 9.5 years of wrongful incarceration). But while the court of appeals affirmed the district court's damages award in Limone, it also signaled strongly that it thought the award was "at the outer edge of the universe of permissible awards. . .." Limone, 579 F.3d 79, 2009 WL 2621536, at *25. The court further warned that "the $ 1,000,000 annuity selected by the district court as the baseline for its calculation should not be understood as a carob seed for measuring the harm caused by wrongful incarceration generally." Id.

As noted above, there are three aspects in which Waters suffered as a result of his wrongful conviction: his loss of liberty and the adverse consequences that typically attend incarceration, his extended and severe emotional distress as a consequence of his incarceration, and the physical illnesses and injuries he suffered because of his imprisonment.

As to the first aspect, I conclude that damages to compensate for Waters' loss of liberty during his incarceration should be assessed at the rate of $ 1,000 per day. I choose a rate, rather than a lump sum, to reflect that an element in the harm caused is the length of time spent in wrongful custody. The amount [*9] of the award for this aspect of the injury thus reflects the duration of the loss. The number of days from October 13, 1982 to March 15, 2001 (inclusive) is 6,729. This amounts to $ 6,729,000.

In addition, I award a lump sum of $ 1,000,000 for Waters' physical illnesses and injuries incurred during and because of his incarceration, and a further lump sum of $ 3,000,000 for his mental anguish, pain and suffering during and because of his incarceration.

Accordingly, I award damages in favor of the plaintiff and against the defendants in the total sum of $ 10,729,000. Judgment shall enter accordingly.


/s/ George A. O'Toole, Jr.

United States District Judge

Waters v. Town of Ayer

Please see the brief bank for the settlement agreement.