Judge recommends dismissal of Burke's claims

By Brian Burns
Staff writer

A federal judge magistrate has recommended that Edmund Burke’s suit for false arrest, false imprisonment and civil rights violations be dismissed.

Burke brought the suit after he spent 41 days in jail after being arrested for the 1998 murder of Irene Kennedy in Bird Park. Burke has maintained authorities knew DNA evidence ruled him out before he was arrested.

He is seeking an unspecified amount of monetary damages.

Magistrate Judge Lawrence Cohen’s recommendations now go to the trial judge who will decide whether to accept them and dismiss the suit against the town of Walpole, the state, individual police officers and a forensic dentist.

Cohen’s Oct. 8 recommendations support motions for summary judgment filed by the plaintiffs. If accepted by the presiding judge, George O’Toole, summary judgment essentially means that the suit would be dismissed before it reaches the trial stage.

Burke’s attorneys are expected to have another chance to try to make their case against dismissal before Judge O’Toole decides on Cohen’s recommendations.

If Cohen’s recommendations are accepted, a granting of summary judgment would clear the town, state and police of all the charges leveled in Burke’s suit.

Burke’s suit claims that investigators in Walpole and at the state level conspired to pin the charge on him, a violation of his constitutional rights.

It also claims that authorities purposely withheld evidence that they knew to be exculpatory (mainly that DNA tests cleared him of the crime) at the time of his arraignment.

According to Judge Cohen, the focus of a summary judgment inquiry is to determine whether the evidence presents a significant disagreement that requires submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law.

Cohen’s recommendations for summary judgment were based on several determinations that he made that were severely damaging Burke’s claim that his civil rights were violated.

For instance, while Cohen accepts as fact that at least one of the investigators named in the suit – State Trooper Steven MacDonald – was notified on the day of Burke’s arrest that DNA evidence found at the scene was not Burke’s, he does not find MacDonald liable for not sharing that information until the next day.

"[T]his court is unaware of any case which holds that an investigator’s failure to disclose exculpatory evidence, intentional or otherwise, violates one’s constitutional rights where there has been no trial – no adjudication of guilt or innocence," he writes.

"For the reasons set forth above…this court cannot fairly conclude that any reasonable police officer should have known that such conduct (or such inaction) would violate one’s civil rights and subject the police officer to suit under Section 1983." A Section 1983 is a civil action for the deprivation of rights.

Cohen also refuses to allow Burke to claim that forensic dentist Lowell Levine rendered a "false" opinion by determining that the bite marks found on Kennedy’s body matched impressions taken from Burke’s teeth to a "reasonable degree of scientific certainty."

Burke’s suit against Levine contends that the dentist intentionally caused his arrest, continued detention and the unlawful search of his premises by the fabrication of evidence that provided probable cause for all three events – i.e., identifying the bite marks as a match with his teeth.

But Cohen believes that when Levine rendered his opinion that the bite marks matched "to a reasonable degree of scientific certainty" it was akin to him saying that there was "a high degree of probability that they matched."

That interpretation "is fully consonant with the legal interpretation of the phrase," Cohen writes. Since Levine is only opining that the bite marks match to a high degree of probability and not that the bite marks are a definite match, there is no way to prove that his statement is false, Cohen writes.

(During the hearing on the motion for summary judgment this summer, Burke’s attorney Robert Sinshiemer argued that Levine should have known that investigators would take "a reasonable degree of scientific certainty" to mean "virtual certainty.")

Cohen goes on to say that even if the plaintiff was able to prove that the opinion was false, there was nothing to suggest that Levine rendered it intentionally or recklessly. He notes that Levine did not make a determination when he was first presented with evidence on Dec. 6, but rather waited until he could view some enlargements of bite marks several days later.

In another significant blow to Burke’s case, Cohen also finds that investigators had probable cause to arrest Burke Dec. 10, 1998.

There was significant evidence at that time that pointed to Burke as a likely suspect for the murder, Cohen writes.

Included among that evidence was that a state police dog tracked directly from the murder scene to the plaintiff’s house, Cohen writes.

According to Cohen, Burke also lied to investigators in at least two respects, (i.e. that he was sleeping in his house at the time of the murder whereas two witnesses saw him outside his house at the time of the murder, and that he did not possess clothing described by those two witnesses who saw him in his yard), and that he consistently "changed his story."

"Given the facts above," Cohen writes, "a reasonably prudent person would and could believe that the plaintiff murdered Irene Kennedy."

Cohen makes no mention of Burke’s contention that investigators altered the police report to indicate that the dog search was far more conclusive than it actually was. Burke has contended, and the State Police dog handler has agreed under oath, that the dog wandered around for a while before ending up in the vicinity of Burke’s front porch.

He also makes no mention of the fact that Burke has disputed a lot of the witness accounts that place him outside his house at the morning of the murder.

And since Cohen believes that investigators had probable cause in arresting Burke, he is similarly unsympathetic to Burke’s claims of conspiracy.

As his guidelines for determining a conspiracy, Cohen cites from the recommendation that he rendered in the motion for summary judgment made by Kathleen Crowley, the state forensics specialist who took the molds of Burke’s teeth and rendered an initial opinion that they matched the bite marks.

"[W]hen a plaintiff claims that the defendants conspired to violate his civil rights, he must proffer specific facts to show that a conspiracy existed to survive a summary judgment motion, conclusory allegations will not suffice."

He later writes that "the plaintiff can muster no more than that all of the State Police officers (as well as the Town of Walpole police officers) were joined in a unitary investigation – and nothing more. To that, this court would add, no doubt, that each of the investigating officers conducted themselves with the single purpose – to bring the murderer of Irene Kennedy to book. But that is far, far short of showing a conspiracy to violate the civil rights of the plaintiff."

In the wake of all these determinations, Cohen recommends for summary judgment for all of the investigators who were involved in the case.

The only party who has yet to get a recommendation for full summary judgment is Crowley. Crowley has received a recommendation for summary judgment for the conspiracy charges against her, but she recently failed to prove that as a state employee, she is exempt from being tried for tort (civil justice violations).

Here is a summary of Cohen’s findings on the members of the Walpole Police Department who were named in the suit.

Burke’s suit against Dolan contends that the detective applied for an arrest warrant for Burke without probable cause, and with the knowledge that DNA evidence cleared Burke of the crime. Dolan is also named because he was one of the officers that participated in the physical arrest of Burke.

Since Cohen feels that there was probable cause for arresting Burke, he dismisses the first charge immediately.

"Moreover, even if a court, in studied retrospect and further reflection, should conclude that that stated to the issuing magistrate fell short of probable cause, qualified immunity clearly protects Det. Dolan in the circumstances of this case."

Using several previous cases, Cohen defines qualified immunity as an attempt to balance a desire to compensate those whose rights are infringed by state actors (such as policemen) with an equal desire to shield public servants from undue interference with the performance of their duties.

Essentially, qualified immunity is meant to protect all but the plainly incompetent or those who knowingly violate the law, he writes.

As far as DNA evidence is concerned, "the long and short of this contention is that plaintiff has not shown, and, indeed, cannot show, that Officer Dolan was aware of the DNA analysis prior to applying for an arrest warrant.

Detective William Bausch was the first investigator to talk with Burke after the murder and Officer Steven Kenney was one of the officers that physically participated in Burke’s arrest.

"At the hearing on the defendant’s motion for summary judgment, this court asked counsel for plaintiff to particularize those facts which suggest that defendant Bausch or Kenney violated plaintiff’s civil rights. Apart from the oft-repeated response of a conspiracy, he could not point to any such facts. Neither Bausch nor Kenney applied for the warrant. Nor did they apply for the later search warrant of the plaintiff’s house or participate in the later search of plaintiff’s house pursuant to that warrant."

Joseph Betro, the former chief of the department, and Richard Stillman, the current chief and a lieutenant at the time of the murder, were named in the suit for failing to properly supervise the officers under their control and for making defamatory statements about Burke to the press.

Since Cohen has already found that none of Dolan, Kenney or Bausch’s actions during the investigation were grounds for a suit, he gives no weight to Burke’s claims that Betro and Stillman failed to properly supervise their subordinate officers.

Burke’s defamation claims against Stillman stem from a Walpole Times article "Burke no longer in custody," which appeared in the Jan. 31, 1999 edition of the paper.

As evidence in the case, Burke’s attorney cited 16 passages of alleged defamatory statements made by the then lieutenant, including:

· "Stillman did point out, however, that the bite marks taken from Mrs. Kennedy’s body matched Burke’s dental profile, according to one of the nation’s top forensic dentists."

· "While there is a possibility that Burke had an accomplice, Stillman said, it is unlikely that someone other than Burke committed the murder, based on the bite marks."

· "Nothing was done wrong, Stillman said, "Everything that could have been done was done. Every bit of information was checked out."

In matters of public concern such as a murder investigation, Cohen writes, the burden is on the plaintiff to show that each alleged defamatory statement is materially false.

"On this, the plaintiff did not even attempt to disclose anything whatsoever to show that any of the allegedly defamatory statements were materially false. All plaintiff has done was to plaster one newspaper article as an exhibit, leaving for this court to divine the truth or falsity of any of the statements. That is clearly not enough."

Betro is named in the suit for statements that he made at a meeting of the East Walpole Civic Association meeting that took place after Burke was released from jail.

At that meeting, Betro said that investigators had found a carton of orange juice near the scene of the murder and suggested that the murderer may have been able to alter his DNA by drinking orange juice at the time of the crime.

"To be sure, plaintiff says (and this court assumes for purposes of this motion for summary judgment) that Chief Betro clearly did not understand the dynamics of DNA testing [when those statements were made]."

"But being wrong is simply not enough in opining as to matters of public concern. Any expression of opinion as to matters of public concern, even clearly erroneous opinions – are not actionable if those opinions are based on disclosed, albeit false, facts.

"In this case, the erroneous premise – i.e. that saliva could be doctored to elude DNA testing by drinking orange juice – was disclosed in all its naked attributes.

Taken in the order of the events they cover, the depositions in the false arrest suit brought by Edmund Burke have a pattern.

What police officers say in their depositions that they learned in the first few days after the murder of Irene Kennedy in Bird Park added up to a strong circumstantial case against Burke.

Deposition statements covering the middle days from the murder on Dec. 1, 1998 to Burke’s arraignment on Dec. 11 show that the circumstantial evidence was not reviewed with care.

Finally, statements dealing with Burke’s arrest and arraignment contain contradictions that raise a question why the prosecution went forward even though the state knew that DNA evidence excluded him.

The depositions were taken in the years following the murder by Burke’s attorney, Robert Sinsheimer, in his damage suit now pending in federal court in Boston against the town, individual state and local police and two forensic dentists. The Walpole man spent 41 days in jail before charges were dropped.

A judge is hearing arguments on petitions by the defendants that the suit be thrown out before it comes to trial.

The case against Burke is well known; it was highly publicized at the time of his arrest.

The most important piece of circumstantial evidence was the direct track made by a state police dog from the spot where the 75-year-old Foxboro woman was savagely killed.

The track was cited by both Walpole and state police. The evidence was not based on a report from the state K-9 officer, but on the first-hand observation of a Walpole police officer who was at the Burke house.

What the officer saw and what was really going on were not the same, based on what the trooper said in his deposition. Before he and his dog started the track several hours after the murder, he told a superior that the site was contaminated by investigators’ scents, making it questionable whether a trail could be picked up.

Then, rather than going directly to Burke’s front door, the dog came out of the park, went one way on Pleasant Street then the other, passed Burke’s house and finally walked back to the front.

The dog gave no sign that he had successfully completed a track, the trooper said. According to Burke, a neighbor who saw Shane and his handler in front of his house told him what the K-9 was really interested in was a bush that the neighborhood dogs use as a message board.

While investigators went with the Walpole officer’s account, the trained state K-9 handler was not asked about the purported track and did not submit a report, according to the depositions.

Next on the list of the evidence against Burke was the report of a Walpole police detective that while he was at the Burke house soon after the murder, Edmund’s mother volunteered information about the killing that could only have been told to her by the murderer.

But according to a deposition by Edmund’s brother John, who was also at the house that day, Mrs. Burke was sitting in her car while police officers next to it were talking about the crime to neighbors before she spoke to the Walpole detective.

John Burke said he told that to investigators, but his information was ignored. Police did not check out his account with the neighbor who had given him the information, John said.

Based on a Walpole officer’s account, investigators held that Burke was seen occasionally in the park, contrary to his story that he never went there.

But the woman who picked Burke’s photo out of an array said in her deposition that her information had been misconstrued and that her efforts to straighten it out with investigators went nowhere.

Burke has said that when he told investigators he never went in the park, he meant to say he had not been there in daytime for years, although he had frequently cut through park land behind his house at night. He believed at the time he made the remark, he said, that police were asking for his help in identifying people who he might have seen frequenting the park.

But based on suggestions from a member of the Kennedy family that they should look at Burke, police from the first viewed him as a suspect. They searched his house the night of the murder.

There is no indication in the depositions that investigators looked seriously for suspects beyond the day of the murder.

Officers’ depositions show they found Burke strange and his house a mess. They also learned that he talked a lot, including about the murder.

According to their depositions, most investigators were unaware of the existence of a key piece of physical evidence – a bloody palm print found on the body. The state police sergeant on the case knew of the print, but thought it might not be a clear one.

The problem, though, was not with the palm print, but with those taken from Burke. A state police forensic lieutenant rejected two sets of Burke’s prints taken by his colleagues as inadequate. Then, just before Burke was released, the lieutenant took his prints himself and determined within three days that they did not match the one on the body.

The breakdown in communication between state and local investigators over the print prompted then-Walpole Chief Joseph Betro to register a protest when he learned of it. In his deposition, Betro said it was ultimately the palm print evidence that convinced him of Burke’s innocence.

If police were generally unaware of a readily available and clear palm print, investigators knew they had physical evidence clear enough to rule Burke in or out: bite marks left on the body by the murderer.

In a weekend meeting between the murder and the arrest, depositions indicate, key investigators believed that in all likelihood, they had a bite-mark match.

One investigator indicated the belief in a match was based on what was said by a state forensic dentist. Another indicated the belief was based on his second-hand information of what others had been told by a forensic dentist in Albany who was called upon to provide an opinion.

But in their depositions, the two dentists said they never told investigators there was a match.

The New York dentist said that he reached no decision in the days immediately after the murder, and that investigators knew that. On Dec. 10, on completing his analysis, he concluded there was a high probability Burke’s teeth made the bite marks. But the words he used to convey that information – reasonable degree of scientific certainty – were the ones Massachusetts investigators were prepared to hear as meaning the nationally-known forensic dentist had confirmed a match.

In his deposition, the dentist, Lowell Levine, said that had he submitted a written report, it would have made clear from the onset that reasonable scientific certainty meant no more than high probability.

But Levine did not submit a written report. The arrest warrant for Burke was completed on the basis of a phone call from the dentist in Albany. The state’s forensic dentist, Kathleen Crowley, said in her deposition that she was not qualified to make a judgment on a comparison of Burke’s teeth and the bite marks.

In his deposition earlier this year, Dr. Levine said he still believes there is a high probability that Burke’s teeth matched the bite marks on the victim even though the saliva in the bite did not come from Burke.

In the hours before Burke’s arrest on Dec. 10, investigators had circumstantial evidence that was unchecked, one piece of physical evidence – the palm print – largely ignored and a second piece – the bite marks – less than it seemed.

There was a third piece of physical evidence, DNA from saliva from the bite marks on the victim’s body. But based on information a state trooper said came from a phone call Dec. 10 with the Maine state police lab where the DNA was analyzed, investigators said it was their understanding that the results were inconclusive. Thus DNA was not a factor in their decision to arrest Burke the next day.

But Maine lab logs say that in the Dec. 9 phone call, the message was that the samples were good and results would be available the next day. The Maine logs also say that on the morning of the next day, Massachusetts was told that the DNA did not come from Burke.

The Maine logs indicate that the phone call on Dec. 10 excluding Burke was on time to be considered by investigators before any arrest. But in their depositions, investigators say they were unaware of the DNA results that day.

State police said in their depositions that the call from Maine came in the next day, Dec. 11, just as Burke was being arraigned for murder in Wrentham District Court. But according to the Maine log, there was no conversation with a Massachusetts trooper on Dec. 11.

At least one Massachusetts state police deposition makes it clear that the call from Maine, whenever it came in, was unambiguous: the DNA evidence excluded Burke.

On Dec. 11, a state police sergeant pulled the prosecutor arraigning Burke out of the courtroom and told him the Maine lab had just ruled Burke out. The prosecutor then made a phone call to his office, returned to tell the judge that the DNA evidence was inconclusive and proceeded with the arraignment.

At the time and until the Maine lab records were made public, the assumption had been that the district attorney’s office had only moments to react to the Maine results as Burke was being arraigned Dec. 11.

But if the lab logs and records that include a dated computer printout are accurate, investigators should have been aware that the DNA excluded Burke a full day before he was arraigned. Well versed in DNA evidence, the Norfolk County district attorney’s office would have had 24 hours in which to re-evaluate the totality of the evidence for and against Burke.

Depositions recently made public in a suit brought against the town and individual officers by Edmund Burke show a big gap between what a forensic dentist claims he told investigators in the 1998 Bird Park murder case and what those investigators say they heard from him.

Here’s an excerpt from a deposition of former Walpole police chief Joseph Betro taken three years ago by Atty. Robert Sinsheimer, who is representing Burke. The Walpole man served 41 days in jail before a charge that he murdered Irene Kennedy of Foxboro was dropped.

Sinsheimer: And what led you to understand that Doc Levine would swear on a stack of bibles that Ed Burke bit Mrs. Kennedy?

….

Chief Betro: He’s a forensic dental expert and he made a determination, made statements and based on that I have no reason to doubt him.

Dr. Lowell Levine, though, insists that he never made such a statement. All he said, according to his deposition this year, is that there was a "high probability" that it was the Walpole man’s bite mark on the body of the 75-year-old woman murdered in Bird Park on Dec. 1, 1998.

But police and the prosecutor who arraigned Burke said they believed Levine found that Burke’s teeth matched the bite marks, meaning he was the one who made the bite.

In a deposition taken early this year by Sinsheimer, though, Levine says that he never told investigators that he matched Burke’s teeth to the bite marks.

What he did conclude, Levine said, is that the bite came either from Burke or someone with teeth "similar to his."

Levine, who lives in Albany, has testified as an expert witness on dental evidence in highly-publicized cases across the country. Massachusetts paid him $5,600 for his work on the Bird Park murder.

He did not submit a written report. Among the material he brought in answer to the summons for his deposition was what he said was the beginning of a draft of what was to have been that report.

Levine’s draft states that "the bite mark on the right areola has been caused by the teeth of Burke with reasonable scientific certainty which means a high degree of probability."

Levine said during his deposition that he thinks reasonable scientific certainty is defined as "virtual certainty" by the American Board of Forensic Odontology, of which he is a founding member.

Sinsheimer: So in other words, in your mind the phrase "high probability" means the same thing as "virtual certainty"?

Levine: The term "high degree of probability" is similar to "virtual."

Sinsheimer: It is?

Levine: Yes.

Sinsheimer: Do you want to testify to that under oath?

Levine: Sure.

Sinsheimer: Okay. Did you say "high probability" to the troopers or did you say "virtual certainty."

Levine: I didn’t say "virtual certainty."

Sinsheimer: If they’re the same thing, what’s the big difference?

Preparing to arrest Burke on Dec. 10, 1998, investigators awaited precise wording from Levine to put in their request for a warrant. While they believed they had enough other evidence, it was the phrase "reasonable degree of scientific certainty" over the phone from Albany that set them in motion, according to a state police sergeant’s deposition. According to another trooper on the case, those words, explained to him by Levine, mean "not 100 percent, but as close as you can get."

While they waited for final word from Levine as he reviewed additional photos Dec. 10, statements in at least one deposition indicate a belief that the dentist thought that there was a match as early as Dec. 6.

On that day, the Sunday between the murder and the arraignment, state and local police gathered at the Walpole station to hear from Kathleen Crowley, a state forensic dentist, and others who had just brought dental photos and models to Levine in Albany. Among those present was Gerald Pudolsky, an assistant district attorney who would prosecute the case.

Sinsheimer: So the idea was, let’s see what the state of the evidence is?

Pudolsky: That’s fair.

Sinsheimer: What did Crowley say at this time?

Pudolsky: I don’t know who said it, Crowley or whoever. The impression was that Dr. Levine had indicated that the teeth marks on the victim came from Mr. Burke.

Sinsheimer: Did Crowley say anything to disagree with that in any way, shape or form?

Pudolsky: (Shakes head)

….

Sinsheimer: Would it be fair at that point there appeared to be a developing consensus that you had a dental match?

Pudolsky: I believe so.

In his deposition, a state police forensics lieutenant said it was his understanding that Drs. Crowley and Levine both thought that there was a bite mark match with Burke. That understanding, the lieutenant said, was based on his conversations with Crowley.

Crowley also indicated to him that Levine would be serving as her backup in trial testimony, the lieutenant said. He noted that in forensics, it’s expected that there will be a second expert opinion to validate a finding.

Crowley and Levine are being sued by Burke.

Crowley, who earned a degree in periodontology in 1998, describes Levine as her mentor. In her deposition, she said that while she made observations of bite mark photos and Burke’s dental molds placed beside them, she did not compare them or reach any conclusions.

Sinsheimer: It was an educational experience. You weren’t trying to form any opinion for the case, that’s what you’re trying to make clear, correct?

Crowley: Yes.

Sinsheimer: Because you didn’t feel you were qualified to do that, right?

Crowley: That is correct.

State had exculpatory evidence day before arraignment

By Tom Glynn
Staff writer

It was a dramatic moment. Edmund Burke in the courtroom about to be arraigned for murder. A state police sergeant gesturing to get the attention of a startled prosecutor. A call had just come through from Maine that DNA evidence showed that Burke could not be the killer of Irene Kennedy.

But there’s a problem with that scene in Wrentham court if a deposition and records subpoenaed from the Maine state police lab that analyzed the DNA are accurate and complete.

The call to a Massachusetts state trooper excluding Burke as the killer of Irene Kennedy came, the Maine documents say, not at the moment of the arraignment, but a day earlier. Before Burke was arrested.

According to the Maine records, there was no such call the morning of the arraignment.

The Maine documents have been submitted to U.S. District Court in Boston by Burke’s lawyers in his damage suit against Walpole, local and state police and two forensic dentists for civil rights violation, false arrest and false imprisonment.

Burke was freed on the basis of the DNA evidence after serving 41 days in jail after being arraigned for the murder of the 75-year-old Foxboro resident Dec. 1, 1998 in Bird Park.

A judge heard arguments from both sides last week on whether the suit should be thrown out before coming to trial. Depositions – statements submitted to the court under oath – and other documents have become available as a result of the summary judgment proceedings.

In a deposition elicited by Burke’s lawyers, the Maine laboratory technician who performed the analysis said the DNA results were ready by 8:30 on the morning of Dec. 10, 1998. A computer print-out filed with the court carries that date and time.

Knowing that getting the information to Massachusetts was a priority, Theresa Callichio went to the office of her supervisor, a Maine state police lieutenant. Together, on Dec. 10 around 11 a.m., they had a conference call with a designated Massachusetts state trooper, telling him Burke was excluded. Twenty or so minutes later, Callichio says, she talked over the phone with a Massachusetts state crime lab technician to discuss the DNA results.

In his deposition, though, the Massachusetts sergeant who broke the news to the prosecutor in Wrentham court Dec. 11 said he had just been told by the trooper that the information had just come in from Maine.

If the DNA results were known in Massachusetts 24 hours earlier than that, as the Maine records say they were, then the information was available at about the time the district attorney, state and local officers were collating the evidence against Burke in preparation for applying for an arrest warrant.

At the meeting in the Walpole police station, District Attorney Jeffrey Locke asked a Walpole officer to write the report on which the affidavit for the warrant was to be based.

In their depositions, Walpole officers present at the meeting said they had no knowledge at that point that the DNA excluded Burke. They also swore that they were unaware that Massachusetts state police had photos of a bloody palm print on the victim’s body. (Weeks later, test results were released showing the palm print also excluded Burke.)

So in preparing his summary report for Locke and for the arrest warrant, the Walpole officer did not mention the DNA or the palm print.

What was known were inconsistent statements by Burke about going to Bird Park and a statement by a neighbor that she saw him outside his house on the morning of the murder, contrary to what he told police. There was blood found on his hands and identification from a photo array of Burke as a man seen regularly in the park. There were the details of the murder known to Burke’s mother that only could have been told her by the killer and a state police dog that tracked directly from the murder scene to Burke’s front door.

And most important of all, there was word from a forensic dentist that day – Dec. 10 – that Burke’s teeth matched marks on the victim’s body. Without that information, investigators believed they still had cause to arrest Burke. But it was the dental evidence that "pushed us over the edge," as one investigator put it.

Other depositions raise questions whether other evidence was as strong as it was said to be on Dec. 10.

According to depositions filed by others and reported last week, Walpole police did not follow up before the arrest on calls from them raising questions about two pieces of evidence: Mrs. Burke’s early knowledge of the murder and the identification of Burke as a regular in the park. The deposition of the state police dog handler does not describe a direct track from the murder scene to Burke’s front door. That trooper said in his deposition that he never filed a report or talked to his superiors about the track.

In what had been seen as the evidence against Burke on Dec. 10, only two pieces maintain their strength in the depositions.

Forensic dentist Lowell Levine stands by his identification of Burke’s bite mark as that of the murderer. And the woman who said she saw Burke in his yard that morning stands by her statement in her deposition.

Judge skeptical about claims in suit

By Brian Burns
Staff writer

An attorney for Walpole resident Edmund Burke had a difficult time convincing a magistrate judge on Tuesday that there was a willful conspiracy behind Burke’s wrongful arrest for the 1998 murder of Irene Kennedy in Bird Park.

During a hearing at the U.S. District Court in Boston on a damage suit brought against the town and police, Judge Lawrence Cohen repeatedly asked Burke’s attorney Robert Sinsheimer for detailed evidence that investigators knowingly conspired to pin Kennedy’s murder on his client.

In response to Cohen’s direct questioning, Sinsheimer was unable to point to specific statements from investigators that indicated the existence of a conspiracy.

He argued instead that there was "a totality of circumstances" suggesting that such a conspiracy existed, and told Cohen several times that he thought the case should be given to a jury to decide.

In what could prove to be a significant obstacle to the case, Cohen told Sinsheimer that he believed investigators had probable cause in arresting Burke for Kennedy’s murder, even without considering any of the forensic evidence.

Cohen said the evidence that a police dog led investigators from the body to Burke’s home and the "lies" told by Burke during the investigation would have been enough to convince him of probable cause, had he been the judge acting on the warrant.

This belief made Cohen reluctant to entertain Sinsheimer’s charges that investigators – including those from the Walpole Police Department – violated Burke’s civil rights in arresting him for the crime.

Tuesday’s hearing in federal court was on a motion for summary judgment that was filed by the town of Walpole and several other parties named in the Burke suit. The hearing will continue at a later time, though no date was set on Tuesday.

A motion for summary judgment essentially seeks to get the suit thrown out of court before it comes to trial.

Burke is seeking an undisclosed amount of money for his arrest and subsequent 41-day incarceration, which ended after DNA evidence recovered from Kennedy’s body cleared him of the crime.

Burke’s suit alleges that investigators conspired to pin Kennedy’s murder on him by altering statements in police reports, failing to follow up on other leads, and deciding not to disclose evidence – including the DNA results – that could have eliminated him as a suspect.

The case against the Walpole Police names Sgt. Steven Kenney, detectives William Bausch and James Dolan, current Chief Richard Stillman (then a lieutenant) and former Chief Joseph Betro.

Cohen asked Sinsheimer to provide specific evidence that the Walpole officers knowingly engaged in a conspiracy to wrongfully arrest Burke. He asked the attorney to list the case against each individual officer.

Sinsheimer said that Kenney was actively involved in the conspiracy to arrest Burke, but when pressed by Cohen the attorney could not offer specific testimony to corroborate his account.

Cohen then asked Sinsheimer what Bausch had done wrong.

Sinsheimer said that the strongest evidence against Bausch comes in John Burke’s affidavit, which claims that Bausch failed to check up on the possibility that Annette Burke (Ed’s mother) may have overheard details about the murder from police officers talking in her driveway. John Burke is Ed Burke’s brother.

Part of the case made against Ed Burke was that Mrs. Burke knew the details of Kennedy’s murder before anyone other than the murderer could have told her about it.

This led investigators to believe that she had heard about it from Burke prior to their arrival.

Sinsheimer also claimed that Bausch told people that Burke killed Kennedy because he was acting out his resentment towards his mother. This was "bizarre thinking," Sinsheimer said.

Cohen said that bizarre thinking does not represent a violation of Burke’s rights.

"So as far as I can see, Bausch did nothing," Cohen said.

Cohen also seemed to dismiss claims that police misrepresented the results of a dog search shortly after Kennedy’s murder and altered testimony provided by a witness in the case.

Burke’s suit claims that the dog did not lead investigators directly to his house – as was indicated in police reports– but in fact wandered around in several different directions before coming to a stop in front of his property.

The suit also claims that investigators altered the testimony of one witness to indicate that she often saw Burke in the park, when she merely described seeing a strange man in the park.

That testimony was used to contradict Burke’s claim that he "never goes into the park."

Sinsheimer told Cohen that Stillman defamed Burke by making statements to the press on the day of Burke’s release to the effect that the department was still convinced that they had arrested the right person.

Attorney Doug Louison, who’s representing Walpole in the suit, later argued before Cohen that the affirmation of an arrest and the evidence that was used in the arrest are not defamatory statements.

Sinsheimer claimed that former Chief Betro was negligent because he did little or nothing to supervise the officers working on the case.

Cohen seemed unconvinced that supervision by Betro would have had a significant effect on the case.

"Would it have made a difference?" he asked.

Sinsheimer’s case against Dolan contends that the detective had applied for an arrest warrant for Burke on Dec. 10 when he already knew that the DNA evidence cleared him.

One of the points of contention in Burke’s suit is that investigators knew that DNA evidence excluded Burke before they arrested him on Dec. 10, 1998.

In sworn affidavits, investigators have said that when they went forward with the arrest, they based the warrant on other evidence because they believed the DNA samples had proven inconclusive.

Judge Cohen said that he found no reason to believe that Dolan knew anything about the results of DNA tests at the time he applied for the arrest warrant.

Sinsheimer also presented evidence against Lowell Levine, a nationally known forensic dentist who was brought onto the case in the days after the murder to make a comparison between bite marks found on Kennedy’s body and impressions of Burke’s teeth.

Burke’s suit alleges that Levine – at the behest of investigators – intentionally made false statements indicating that there was a match between the impressions and the bite marks.

The false statements gave investigators probable cause to arrest Burke, which subsequently led to his wrongful arrest and imprisonment, the suit claims.

Cohen was unreceptive to Sinsheimer’s claims that Levine had knowingly made false statements in regards to a match between the two items.

The judge said that Levine had determined to a "reasonable scientific certainty" that the bite marks matched, and suggested that the dentist’s finding was a scientific opinion akin to "more likely or not."

Sinsheimer disagreed, claiming that Levine should have known that "reasonable scientific certainty" would have been considered by investigators as close to scientific fact.

Cohen also asked Sinsheimer if there was anything in the testimony indicating that Levine had linked Burke to the murder, rather than just issuing an opinion on the matching bite marks.

Sinsheimer did not provide him with any.

Burke’s case against the State Police alleges that three of the troopers knew the DNA results excluded Burke as early as Dec. 10 and yet still went forward with the arrest.

Trooper Scott Jennings is named because he filed for a search warrant on the day of the arrest. Trooper Kevin Shea is named because he took part in the physical arrest on Dec. 10. Trooper Steve McDonald is named because he was the investigative team’s contact person for the DNA results.

In presenting evidence against the three troopers, Sinsheimer was once again unable to provide specific statements indicating their participation in a conspiracy.