Judge allows civil rights suit against police to continue

Jury to decide if Drumgold's conviction just

Shawn Drumgold was convicted of murdering a child and served 15 years in prison before several witnesses recanted in 2003.

Shawn Drumgold's civil rights lawsuit against Boston police is still alive, but barely.

The day after a federal jury all but cleared two retired city detectives who were sued for allegedly violating Drumgold's right to a fair trial in an infamous 1988 slaying of a child, US District Court Judge Nancy Gertner yesterday allowed the case to continue on the only one of the 11 claims in which jurors sided with Drumgold.

"If the jury has come back and said, 'Mr. Drumgold's rights were violated in this one particular [instance],' I'm not going to say that it's unimportant," she said. "That's a verdict that will stand."

The jury found that one of the detectives, Timothy Callahan, violated Drumgold's civil rights by concealing information about Callahan giving a crucial prosecution witness cash before the witness testified at the 1989 murder trial.

Drumgold was convicted of murdering 12-year-old Darlene Tiffany Moore and served 15 years in prison before several witnesses recanted in 2003 and a state judge, concluding he was wrongfully convicted, threw out the verdict. But Boston police and Suffolk County prosecutors never exonerated him.

Callahan's lawyer, Mary Jo Harris, argued yesterday that the detective admitted in the federal suit that he gave $20 to Ricky Evans, a homeless teenager. Evans testified at Drumgold's murder trial that he saw Drumgold near the Roxbury street corner where Moore was felled by two stray bullets as she sat atop a mailbox in an apparent gang shooting. But Harris urged the judge to throw out the sole verdict in Drumgold's favor because, she said, such a small sum could not have tipped the criminal case against him.

Gertner rejected the argument. She said Evans testified in the federal trial that Callahan was virtually his ATM. It is up to the federal jury to decide whether Drumgold might have been acquitted if his criminal defense lawyers knew about the cash and presented that evidence as a possible motive for Evans's testimony at the Suffolk murder trial, she said.

The judge said she will order jurors in the lawsuit to return to court Monday. Lawyers for Drumgold and the city will then argue to the jury about whether the single civil rights violation caused his wrongful conviction. If the jury concludes that it did, she said, she will let jurors award damages.

She also said she will decide by today whether to let Drumgold testify Monday, before the arguments, about how the wrongful conviction affected his life.

Wednesday's verdicts puzzled lawyers on both sides. The jury rejected contentions that Callahan and another detective, Richard Walsh, violated Drumgold's right to a fair trial in 10 instances, many of them seemingly far more serious than the one deemed a civil rights violation.

The assertions included an allegation that the officers concealed the fact that a key eyewitness had brain cancer when she implicated Drumgold and that the illness could have affected her recollection. The claims also included assertions that the officers failed to tell prosecutors that police put Evans up in a motel for free for eight months before the trial, provided meals, and cleared up a handful of his outstanding warrants.

Harris argued yesterday that given the jury's rejection of the 10 other claims, the judge could not legally hold Callahan liable for failing to disclose the cash payment, particularly if it was only $20.

"I don't think there's a constitutional obligation to disclose everything in the universe" that happens between a police officer and witness, Harris said.

But Drumgold's lawyer, Rosemary Scapicchio, told Gertner that the amount of money Evans received was irrelevant. "A violation is a violation," she said.

Mari Adams, a Roxbury antiviolence activist and a friend of the families of Drumgold and Moore, said no damages can compensate Drumgold for the years he lost for a crime she believes he did not commit. She also said it was tragic that no one has been held accountable for Moore's slaying.

"Poor Tiffany is never going to get up again," Adams said. "She was a beautiful little girl. It's heartbreaking."

Jonathan Saltzman can be reached at jsaltzman@globe.com.