Reluctant Hero

As a freshly minted lawyer, Betty Anne Waters rescued her brother from a murder conviction. Now that her story is a Hollywood movie, will the spotlight help — or hinder — this media-shy attorney and her latest, controversial case?

The scene: a Massachusetts courthouse, sometime in the spring of 2000. Betty Anne Waters stands at the front counter of the basement evidence room, peering into a cardboard box labeled with her brother’s name, “Kenneth Waters.” He’s spent the past seventeen years behind prison walls, serving life without parole for the brutal murder of a housewife in Ayer, his hometown, thirty-five miles north of Boston. There were no witnesses to the crime, but during his trial several people testified they heard him make incriminating statements. Through it all, his sister’s belief in his innocence has never wavered. Winning his freedom has become her life quest. Though she dropped out of high school as a teen, her crusade sent her back to the classroom, first at Community College of Rhode Island, then Rhode Island College, then Roger Williams University School of Law. She’s now a brand-new lawyer, with her brother as her only client. 

Inside the box, in a clear plastic bag, Betty Anne sees a blue and green window curtain that once hung in the victim’s home. It’s the lost puzzle piece she’s been desperately seeking. Dark stains are smeared across the cloth, stains that years earlier the prosecutor had presented as . . . the killer’s blood!

If this sounds like a Hollywood movie, in fact it is. Betty Anne Waters, an indie drama starring Hilary Swank, was in post production last fall and is scheduled to hit the cineplex this year. The imprisoned man redeemed is a tale that’s been told and retold on screen, but now it’s getting a fresh spin. This time it’s nonfiction, with a flesh-and-blood hero, and not the lost soul behind bars but an everyday Rhode Islander, an unassuming waitress and single mom blessed with unshakeable resolve.

Ask the real Betty Anne Waters how the movie project got started, and she remembers the ceaselessly ringing phone. The calls began the moment the gavel crashed down in a courtroom and the Commonwealth of Massachusetts overturned her brother’s conviction. They kept coming for weeks, some days almost nonstop.

She ignored them. She knew who they were — agents, screenwriters, directors — but she was too busy fretting about a possible retrial to give them much thought. Besides, she wasn’t looking for attention; the spotlight makes her a little queasy. And the truth is, she really didn’t care much for lawyers. Why would she want to brag about being one?

That was nine years ago. Waters, a fifty-ish woman with hazel eyes and auburn hair, is still reluctant to court publicity and still spouts cynicisms about members of the bar. Today, the Middletown resident is co-owner of Aidan’s, a restaurant and pub overlooking picturesque Bristol Harbor, and spends most of her time running the business. The place is nestled alongside million-dollar condos, but once inside a visitor soon forgets the gentrified waterfront. The atmosphere calls to mind the social hub of a village in Donegal. Quahoggers, daytrippers, sail boaters and Roger Williams students mingle over pints of Bass and Newcastle. The decor is lace curtains, honey-colored wood and photographs of hurling champions. All that’s missing is the aroma of smoldering peat.

Conversing in a cozy booth, Waters can now muster some enthusiasm for the movie business, or at least the biopic she inspired, primarily because she sees it as a public-relations boon for the Innocence Project, a sometimes controversial group that claims to have rescued hundreds of wrongly incarcerated people. And maybe, not so coincidentally, the publicity could help with another notorious case she’s working on closer to home.

“It will put a face to the issue,” she says with the authoritative tone of a nun lecturing fidgety sixth-graders. “It will help people understand how an innocent person winds up in prison. If all this had never happened to my brother, I doubt I would ever believe that innocent people end up there.”

Waters tries her best to dodge some interview questions, though not because she finds them hard to answer. She’s simply considerate of the movie audience. “That would give away everything,” she answers, “from beginning to end.”

She’s being gracious, of course. With all the headlines that followed her brother’s release, spoilers are hardly a concern. Here’s how the story was reported by news organizations around the world:
During her law school days, Waters boned up on DNA profiling, a technology not yet available at the time of her brother’s conviction. She also learned how Innocence Project lawyers were using the new science to reverse convictions and free prisoners. The organization charges no fee for its services, which was the only kind of help she could afford. She contacted Barry Scheck, one of the founders (yes, the aggressive, prickly star of O. J. Simpson’s defense team, who more recently was censured by Judge Mary Lisi in a suit following the death of Providence police officer Cornel Young Jr.). Impressed by her determination, he took the case.

On a bright day in March of 2001, a jubilant Kenny Waters stepped out of the same Cambridge courthouse where he’d been convicted years before, with Betty Anne by his side and a swarm of reporters buzzing around them. The lab tests on the old curtains had revealed someone else left the bloodstains. Confronted with the new evidence, a judge had tossed out his conviction. While Kenny savored his liberty, the media mob pressed him for quotes. “Always take care of your sisters,” he told the CBS crew. “They’ll take care of you.”

The real story includes a tragic epilogue that likely won’t be part of the film. That September, just months after his release, Waters fractured his skull in a fall and died a short time later, with his sister in his hospital room by his side.
 
There are also some rough spots the screenplay no doubt omits. Was Kenny Waters really a loveable mook, as CBS News and People magazine portrayed him? Not according to some in Ayer. They remember a violent, boozing guy with an ugly police record, and many are skeptical of his claim to innocence. As for Scheck (who declined interview requests), his firm went on to file a civil suit against the town, and last year won a $10.7 million award for the late Kenneth Waters’ estate. The lawyers are entitled to a third of that. Similar suits have followed many Innocence Project exonerations.

In Betty Anne Waters, though, the movie makers have found a true hero for our times: a nobody with nothing, who grabbed hold of a too-often-indifferent government Goliath and squeezed until she heard “uncle.” And in the Great Recession — the age of the underdog if ever there was one — that’s bound to put movie-goers in seats. 

The story began the morning of May 21, 1980, with an emergency call that sent Ayer police racing to a trailer home on Rosewood Avenue. Inside they found Katharina Brow dead on the floor, stabbed more than thirty times. Some jewelry and $1,800 cash she had tucked away in a linen closet were gone.

The cops wasted no time picking up a suspect. The Waters family, with ten kids in all, had left Ayer for Providence years earlier, but Kenny, the wild one of the bunch, had returned. The twenty-six-year-old worked as a cook at the Park Street Diner, where Brow was a frequent customer, and where she’d been heard talking about the money she had saved for a trip overseas. What’s more, as a boy Waters had been caught breaking into her trailer.
 
Investigators questioned him and took his fingerprints, but they turned up nothing that could link him to the crime. Lab tests on the trailer’s bloodstained curtains showed he shared the same blood type as the killer, but 45 percent of the population matched as well.

For two years the homicide went unsolved. Then police got a tip that Waters had made incriminating statements to Brenda Marsh, his former girlfriend and the mother of his baby girl. She first insisted the allegations were untrue; eventually, however, she talked. Kenny Waters found himself charged with robbery and murder.

During the five-day trial Marsh took the stand and described a heated argument in which Waters admitted he’d killed Brow. Another witness claimed she heard him make similar statements after a night of drinking. And a waitress at the diner testified that several weeks after the murder Waters sold her a ring she recognized as the victim’s. She gave him $5 for the jewelry, never letting on what she knew, and then turned over the item to the police.

Waters’ lawyer offered an alibi defense: He’d been on the job that morning, and then hurried to Ayer District Court to answer an assault charge. That carried little weight with jurors. They found him guilty, and the judge said “Life.”
 

In the years that followed, Waters’ lawyer filed several appeals, including one asking the court to scrap witness testimony about his alleged admissions on the grounds he’d been TWI — talking while intoxicated. Every effort flopped.

“My brother was ready to give up,” Betty Anne recalls. “He felt there was no way out. He didn’t trust lawyers. Finally he told me, ‘There is no Plan B — you’ll have to go to law school. That’s the only chance I’ll have.’ ”

She seemed an unlikely candidate for the bar. In 1986 she was in her early thirties, married, with two young sons. Her education milestones consisted of a general equivalency diploma and a few college credits. Nevertheless, to give her brother hope she began the uphill trek toward a law degree. “It was a bad time,” she remem-bers. “He was suicidal. I was just thinking it would help keep him alive.”

The next twelve years were a hard road. Her marriage ended in divorce, and to make ends meet she took a job as a waitress and bartender. Through it all, she kept her eyes on the prize.

“She’s been to hell and back in her life, but she’s always strong,” says Aidan Graham, her employer then and her business partner now. “She’s always had this resilience, this passion.”

“I knew she could do it,” adds her kid sister Barbara DeSimone, a waitress at Aidan’s. “When it’s for your brother, you can always do it.”

At Roger Williams law school, down the road from Aidan’s, Waters found an ally ready to help her. “We became best friends the first day,” says former classmate Abra Rice (played on screen by Minnie Driver). “We were both older than the other students, so we felt a kinship right away.”

 

By the weekend they were sharing drinks at the pub. “She asked me why I was in law school,” recalls Rice, now a public defender in New Haven. “I said I’ve always wanted to help people. And then she opened up about her brother.… She was on a mission.”

Graduation rolled around, and the two pals went straight to work on the case. They set their sights on finding the bloodied items from the crime scene, though there was no certainty anything had been saved. At the courthouse where her brother once stood trial, they schmoozed the evidence clerk, hoping she’d make an extra effort to search the lockers. The brown-nosing proved effective.

“One day the clerk told me over the phone, okay, there’s a box here with Waters’ name on it,” says Betty Anne. “My heart was pounding. It was a miracle that box even existed, because once the appeals are exhausted the state has no obligation to preserve the evidence.”

That’s when she reached out to the Innocence Project. The New York-based nonprofit, established in 1992, was using new advances in genetic research to shake up America’s criminal justice system. Today any fan of “CSI” can explain the process: A stain left by blood or semen — even one collected more than a decade ago — can yield cells suitable for DNA testing, and because each person’s DNA is as unique as a fingerprint, those tests can reveal whether a defendant is the source.

Scheck, an expert with the new forensics, soon had Kenny Waters back in his family’s embrace.  No one from the Middlesex County District Attorney’s office showed their face at the celebration, and for several months prosecutors mulled a retrial. They suggested he could have acted with an accomplice, a theory they’d never proposed before. But then the defense team got the lead witness, Kenny’s ex-girlfriend, to recant her testimony, and the prospect of another conviction melted like Del’s on Scarborough Beach. The case was dropped. Waters would enjoy six months of freedom before his death.

With the criminal case behind them, Scheck next used his connections to set in motion the movie project, perhaps with an eye toward boosting the Innocence Project. To reporters he described Betty Anne as “the second coming of Erin Brockovich,” whetting Hollywood’s collective imagination. Then he introduced her to a friend in the business, producer Andy Karsch. A deal was inked, and the shy bartender-lawyer soon found herself swept up in the excitement. She visited the set in Michigan, where filmmakers enjoy more generous tax credits than those offered in Massachusetts and Rhode Island, and hobnobbed with the stars. Several of her siblings worked as extras.

At one point Hilary Swank and director Tony Goldwyn were spied at Aidan’s downing Guinness, with scarcely a word about their visit in the Ocean State’s press.

“They came by my house in the morning, and I made everyone breakfast,” she says matter-of-factly. “Then we all climbed into the car — Abra, too — and drove to Ayer. We went to Cambridge, to the courthouse where my brother was convicted, and back here . . . Hilary Swank is a lot of fun. Easy to get along with. I can’t think of anyone I’d rather have playing me.”

Betty Anne never took up law as a profession, but it remains her avocation. She does pro-bono work for the Innocence Project, chiefly speaking appearances, and reviews prisoners’ requests for help for a sister organization in Boston, the New England Innocence Project.  She’s also assisting with at least one case.

“There are good lawyers whom I respect,” she says. “The ones who are out to help people, not hurt people. Barry Scheck, for example.”
 

The Innocence Project’s success with DNA evidence has since inspired similar efforts in cities across the country, together known as the Innocence Network. Their success rate to date: 245 prison inmates freed by genetic testing, according to the Innocence Project website. The legal teams include some of the sharpest minds in tasseled loafers, and they all work pro bono.

That hardly means, however, that no one’s getting rich. Innocence Project lawyers wear two hats; they’re also partners at firms with billable hours — like Neufeld, Scheck and Brustin — and they’re ever ready to help ex-prisoners win monetary compensation for the years they’ve lost. Twenty-one states have programs that provide financial assistance to those who’ve been wrongly imprisoned, but those awards are paltry, seldom more than a few hundred thousand dollars. Instead, lawyers will typically file a suit in federal court, alleging civil rights violations and demanding millions.

“It’s a very lucrative business,” says Avi Kamionski, of Chicago’s Andrew M. Hale and Associates, a law firm that defends municipalities across the country in civil rights suits. While he tips his hat to those working to free incarcerated innocents, experience makes him sometimes leery of their motives.

“There’s an aggressive approach by groups like the Innocence Project to get people out of jail, and it’s not all noble,” he says. “They’re asking for one or two million dollars for every year of incarceration. The plaintiff’s lawyer can take a third of the settlement, the usual going rate, and because these cases are filed in federal court, he can also petition the court for payment for his time. And he gets it.”

The jackpot settlements have some questioning whether Innocence Network cases are really about innocence, or just clever lawyering.

“For the most part, they’re not releasing the truly innocent,” says Wendy Murphy, a former Massachusetts prosecutor now better known as a media pundit who speaks for victims’ rights. “Often, they’re releasing the truly dangerous.”

There’s no shortage of names to back up that assertion. Kerry Kotler left a New York prison after the Innocence Project got his rape conviction tossed out. Five years later he was convicted of another assault. And in Wisconsin, lawyers used DNA to get longtime prisoner Steven Avery’s rape conviction overturned, only to see him charged with murder two years later. He eventually was found guilty of the crime.

 

Murphy is quick to note that DNA evidence rarely proves a defendant’s innocence or guilt. In a rape case, the presence of a third party’s genetic material may only mean the victim had sex with another person before or after the attack.

“All DNA can really tell us is whether a particular individual’s body fluids are at the crime scene,” she says. “It’s a party with balloons every time one of these guys is freed, but no one’s asking, is he really innocent, or is the court simply telling the prosecutor, we have new evidence, have a second trial? But district attorneys seldom retry these guys because the cases are old and the witnesses are gone, or they don’t have the political wherewithal.”

Stanley Z. Fisher, a professor of law at Boston University and a member of the board of trustees for the New England Innocence Project, dismisses the criticism. Defense lawyers, he says, do a noble deed when they make prosecutors live up to their duty to prove a case beyond a reasonable doubt. “We’ve become an advocate for police, prosecutors and courts to change procedures that make errors more likely,” he says. While he acknowledges that lawyers who work with the agency sometimes get involved with civil litigation, Fisher insists that has no bearing on exoneration cases. “Do we think that person is innocent: That’s the sole criterion used,” he says. “We only take cases when we believe there’s a good chance of showing that.”


“Where can I find Terence Gelinas?”

When Terry Gelinas heard those words, his first thought was “Trouble.” Maybe a constable was trying to serve him with a warrant.

Then the guy introduced himself as Marty Yant, a private investigator working with Betty Anne Waters and the Innocence Pro-ject. Yant suggested they go up to Gelinas’ apartment to talk in private, but Gelinas was wary and insisted they talk on a bench outside. Yant wanted to discuss the 1992 murder trial of Raymond “Beaver” Tempest Jr., a controversial court case in Rhode Island history. Gelinas had been a witness for the prosecution.

“He said he came to tell me the case was done,” Gelinas recalls. “They were going to get the conviction thrown out and I should tell them if my testimony was coerced. They’re looking for me to recant. He was just waiting for me to break and take back one thing.”

(For his part, Yant says the conversation with Gelinas was above board and there was no intimidation.)

With the triumph and tragedy of her brother’s case behind her now, Betty Anne has found a new mission. She’s leading the efforts to undo the conviction of another man she sees as a victim of criminal prosecution gone awry, this time right here in the Ocean State.

It all goes back to a snowy day in February 1982, when police found the body of twenty-two-year-old Doreen Picard, bludgeoned beyond recognition, in a Woonsocket basement. Susan Laferte, her landlady, lay beside her, bruised and bloodied. Police first thought Laferte, too, was dead, but she somehow survived — with so much brain damage she was never able to name her assailant.

In the close-knit mill city, word on the street was that the bloodbath was the work of Beaver Tempest, son of politically connected Raymond Tempest Sr., the state’s high sheriff and former second in command of the Woonsocket Police Department. Though the rumors persisted for years, the investigation went nowhere.

After nearly a decade and three grand jury investigations, however, Beaver was finally indicted for murder. During the month-long trial prosecutors argued Tempest had wielded a metal pipe in a savage act of overkill. But there was more. Tempest was depicted as the beneficiary of an elaborate police cover-up orchestrated by family members, including his brother, Woonsocket Detective Lieutenant Gordon Tempest, and other allies on the force. Beaver, prosecutors asserted, had bragged to others that his connections would keep the law at bay.

In the end, the late Superior Court Judge John Bourcier (famously known as “Maximum John”) sentenced Beaver to eighty-five years. By then the heap of collateral damage included a string of earlier convictions spawned by the cover-up, including one resulting in a seven-year sentence for Gordon Tempest for perjury.

But defense lawyers maintained that Beaver Tempest was railroaded on false testimony, coerced or otherwise wheedled from a handful of witnesses dredged from the underbelly of the gritty factory town by an anti-Tempest faction within the police department. And the Innocence Project is offering the same argument today.

“Based on the transcripts, I don’t know how he was convicted,” Waters says. “I fully believe he’s innocent.”

“One of the sloppiest cases I’ve seen any-where,” adds Yant. “Lots of potential suspects were overlooked.”

Four years ago, at Waters’ urging, the New England Innocence Project filed motions in Superior Court to initiate proceedings to vacate Tempest’s conviction. Since then, however, there has been no further motion, prompting some to speculate the effort has failed.

Attorney General Patrick Lynch says he admires Waters’ passion for justice, but he thinks there’s a reason why she’s spinning her wheels on Tempest. “Frankly,” says Lynch, “I think they’ve selected the wrong person. Four years and they haven’t done anything. It’s inexplicable that it’s taken four years to get things going if an innocent person is suffering…. That’s not a good ad for the Innocence Project.”

Tempest and Kenny Waters were both convicted on the same type of evidence: incriminating statements relayed by others. There were no eyewitnesses, no fingerprints or fibers found at the scene. This time, though, the Innocence Project has no DNA tests to present in their push for a new trial. The pipe that allegedly served as a murder weapon was examined several years ago, but the results were inconclusive.

That leaves the Innocence Project hunting down witnesses and hoping they’ll recant their testimony. It’s a long shot. Judges are skeptical of recantations, and with good reason. The witness statement closest in time to the event is usually regarded as closest to the truth, as the opportunity for undue influence, corruption and pressure increases as years pass.

And should a judge someday dismiss Tempest’s conviction, there’s still the matter of a retrial. Given the controversy that surrounded the case, it’s unlikely prosecutors will simply let him walk. 

Of course, if there is a second trial, the Innocence Project lawyers might find Hollywood has handed them a courtroom advantage. Betty Anne will likely be seated with the rest of the defense team, no longer just a lawyer-waitress, but an actual celebrity. Will prosecutors screen potential jurors by asking, Have you seen Betty Anne Waters? Do you think Hilary Swank is Oscar material? And could you be swayed by a homegrown, everyday hero?