.jpg) Kenneth Waters and his sister, Betty Ann Waters
Brow had been stabbed more than 30 times and her linen closet had been ransacked. There were bloodstains throughout the house and the kitchen faucet was running. Her purse, some jewelry, and an envelope where she kept cash were all missing.
The last person to see Brow alive was her husband, who left the house just after 7 a.m.
Along with processing blood samples for evidence, the first officers on the scene were able to recover several usable fingerprints from the crime scene. One was on a toaster; another was on a can of beer. They also recovered several hairs that were in Brow’s fist, indicating a potential struggle with her killer. In the kitchen wastebasket, they found a paring knife embossed with the name “Murphy Company.” It was covered in blood and determined to be the murder weapon. Brow’s husband would later say the knife was his. He worked for Murphy, which was a major employer in Ayer.
Early in the investigation, police interviewed 25-year-old Kenneth Waters. He lived near Brow with his girlfriend, Brenda Marsh, and their daughter. Brow was a frequent customer at the Park Street Diner, where Waters worked as a cook. Waters had known Brow most of his life and they were not on friendly terms, in part because Brow had helped send Waters to reform school after he broke into her house when he was a boy.
But Waters had a strong alibi for his whereabouts at the time of Brow’s death. When he was questioned by police that afternoon, he said that he had worked until 8:30 a.m., and then a coworker had driven him home. He changed clothes, then met his attorney for a court date regarding a charge of assault on an officer. (He had a previous conviction for attempted murder.) He left the courthouse at about 11 a.m. and returned to the diner, where he stayed until 12:30 p.m. As part of the investigation, police examined Waters carefully, looking for bloodstains and cuts on his clothes and body. They found none. Police went to the diner and spoke with employees, who confirmed that Waters had been there in the morning, finishing up a double shift. They also took his fingerprints, which were sent to the Massachusetts State Police and examined by a trained fingerprint examiner named John Baliunas. The police also sent fingerprints of other potential suspects, as well as of Brow’s family.
Baliunas reported back to the Ayer Police that Brow’s print was on the beer can, and he excluded Waters, the other suspects, and Brow’s family as the source of the unidentified print.
The investigation went cold and stayed that way for more than two years. On September 30, 1982, a man named Robert Osborne called up the Ayer police and spoke to Officer Nancy Taylor. Osborne said that he had information about the Brow murder. He was looking for compensation, admitting later he was calling for financial reasons. Taylor said she would look into that possibility and then met with prosecutors and a detective. They agreed that Osborne could be compensated as an “informant.”
Taylor occupied a gray area in the tiny Ayer Police Department. She was the chief’s secretary and a dispatcher, and she had also been trained to interview victims of rape or child abuse. She would not attend the police academy and become a full-fledged patrol officer until 1983. Despite that lack of training, she now became the lead officer on the case.
Osborne called Taylor the next day, and a deal was struck, although it’s not clear whether he ever received any money. Osborne said that Marsh was his current girlfriend, and that she had said that Waters had confessed to the crime. Osborne said Marsh even told him that she had washed the blood out of Waters’s clothing.
Taylor interviewed Marsh on October 4. Taylor threatened to charge her with accessory to murder and to take away her children if she didn’t cooperate. Under pressure, Marsh buckled, signing a statement that said Waters had told her he killed Brow. But there were several problems with the statement. First, she said that on the day of the murder, Waters had a “deep red scratch” on his face. Second, she said that Waters had come home drunk from the diner at about 10 or 10:30 a.m. Neither of these assertions was true. Police had examined him closely that day and saw no scratches. And he was in court that morning with his attorney at the time Marsh said he was home drunk. Lieutenant Arthur Boisseau, the second-in-command in the Ayer Police Department, would later state that he never saw Marsh’s initial statement, and that if he had, it would have set off alarms, because he knew it contained several clear errors.
Based on Marsh’s statement, Taylor swore out a felony complaint against Waters on October 12, 1982. He was arrested the next day in Providence, Rhode Island, where he was now living.
A month after the arrest, Taylor and Marsh appeared before a Middlesex County Grand Jury. Marsh again repeated her story, stating that when she had asked Waters on May 21, 1980 if he had anything to do with Brow’s death, he replied, “Yeah, what’s it to you.”
During Taylor’s testimony, a grand juror asked her about the presence of forensic evidence. “Was the department able to lift any fingerprints?” Taylor responded: “The state police did lift some prints. None of them were anything that they were able to match up. They were smeared et cetera.” Elizabeth Fahey, the assistant prosecutor handling the case, followed up: “So the state police were unable to match any prints – lift any prints to be of use in any investigation?” Taylor’s reply: “That’s correct.”
Waters was indicted on November 12, 1982 and charged with first-degree murder and armed robbery.
Waters’s trial in Middlesex County Superior Court began in early May 1983. Based on Taylor’s testimony before the grand jury, prosecutors and Waters’s attorney were unaware of the existence of any fingerprint evidence. Baliunas, the fingerprint technician, was not called as a witness. Several witnesses testified that it was common knowledge at the diner that Brow carried around a lot of cash. Along with stating that Waters had confessed to her, Marsh said that about a week before Brow was killed, Waters had told her about a German woman who had a lot of money in her trailer.
After Waters was charged, police located another witness who said Waters had made incriminating statements. Her name was Roseanna Perry, a former girlfriend of Waters from Providence. She testified that in the summer of 1980, Waters had said after a drinking binge that he had been picked up for murder but “they couldn’t pin it on him.” Two years later, Perry said, Waters confessed to stabbing that “old German bitch” and taking her money and jewelry.
At the time of the murder, DNA testing wasn’t available. Investigators had found Type O and Type B blood at the crime scene. Brow was Type B, leading to the hypothesis that the killer was Type O and had been wounded during the struggle. When police had questioned Waters the day of the murder, they had found no wounds on his body. Waters and Brow’s husband and son were all Type O, and a forensic scientist testified that Type O was found in 48 percent of the population. In addition, the analyst also testified that neither Brow nor Waters was the source of three hairs collected from the crime scene — including one in the victim’s hand and one on the murder weapon.
Employees from Global Van Lines, where Waters had previously worked before taking the job at the diner, testified that a knife like the murder weapon had gone missing from their offices after Waters left. This was despite the police knowing that Brow’s husband had identified the knife as his.
In addition, Adi Ogden, a regular at the diner, testified that several weeks after the murder, Waters had tried to sell her some jewelry. She said she recognized the ring as a gift she had given Brow several years earlier. She bought it from Waters for $5, and then showed it to the police. Taylor examined it and concluded the ring was not Brow’s because it would have been too small for her and because it was engraved. She returned the ring to Ogden, who then gave it to her sister in Germany (Taylor would later state that she did not know of any written policies for the handling of evidence.). But Taylor’s report on the ring wasn’t known to jurors, and Fahey said the ring was “important evidence for your consideration.”
Waters did not testify, but he presented a defense that supported his alibi that he had worked at the diner until 8:30 and then gone to court. But his timecard was missing, so there was no hard proof to substantiate his assertion. It would later be revealed that police had confirmed Waters’s alibi in May 1980 but had not disclosed this evidence to his attorney. There was also a question of whether the police had physically taken the timecards and then lost them.
The time of Brow’s death was a critical and uncertain detail. Dr. Bertrand Hopkins had examined her body at 11:43 a.m. on the day of the murder. He noted that rigor mortis had not set in and that Brow’s internal body temperature was still 97.8 degrees. That would indicate Brown had died closer to the time her body was discovered, a time when Waters was definitely in court. Hopkins did not testify. But Dr. George Katsas, who performed an autopsy on Brow on May 22, testified about the time of death. Fahey misstated facts in questioning Katsas, asserting that Hopkins had detected rigor mortis, when he hadn’t. That allowed Katsas to offer an expert opinion that the time of death was closer to 7 a.m., a time period where the absence of the timecards had left gaps in Waters’s alibi.
Waters was convicted of both counts on May 11, 1983 and sentenced to life in prison.
He appealed unsuccessfully both through the state and federal courts, citing the discovery of payroll records from the diner as new evidence of innocence. The appeals were rejected. While the diner records established that Waters had worked a double shift on the week Brow was killed, they didn’t say what day that extra shift occurred.
During the appeals process, Waters and his attorneys continued to request complete documents from the Ayer Police Department. However, they were consistently given records that didn’t contain the fingerprint technician’s report or the investigatory notes that confirmed Waters’s alibi from the diner.
Betty Anne Waters always believed in her brother’s innocence. After his conviction, she put herself through college and law school, graduating in 1998, all with the goal of exonerating Kenny. In 1999, she located the Type O blood evidence collected from the scene of the crime and obtained a court order to preserve the evidence for possible DNA testing. In 2000, she began working with the Innocence Project on the case. They reached an agreement with the Middlesex County District Attorney’s office to allow a private lab to conduct DNA testing on the evidence. The results excluded Waters and the victim’s husband, proving that Waters was not the perpetrator.
In March 13, 2001, the Massachusetts State Police Crime Lab verified the DNA results, and Waters’s conviction was vacated two days later. After nearly 18 years in prison for a crime he didn’t commit, Waters was freed while prosecutors considered whether to retry him.
The Middlesex County District Attorney’s Office opened a new investigation of the case. The reinvestigation was led by a state police officer, who found the police reports to be incomplete, and contacted the Ayer police officers who had been involved in the original investigation. At this point, for the first time, the police turned over complete records —
including the police report confirming Waters’s work schedule and extensive documentation on the fingerprint evidence that had been collected before trial. More exculpatory fingerprint evidence was found in a storage locker belonging to Baliunas, who had taken his reports with him when he retired.
In addition, Marsh was subpoenaed to testify before a grand jury considering whether to retry Waters. She had recanted her testimony after Waters was released from prison. Appearing before the grand jury, she denied that Waters had ever made any incriminating statements, and that she only said so because she felt she had no choice. “Well, I had two young children. I was threatened to have my children taken away from me, put in prison for 10 years for accessory to a murder.”
“By Robert Osborne?” asked a prosecutor. “No,” she responded. “By Nancy Taylor.”
Perry also publicly recanted her testimony in 2001. In 1983, she had recanted to a private investigator and to Betty Waters, stating that she couldn’t actually remember what Kenny Waters had told her about Brow’s death because they were both so drunk at the time. But at an evidentiary hearing in 1985, Perry repeated her trial testimony. She would later say that Taylor threatened to charge her with perjury and accessory to murder if she recanted.
On June 19, 2001, the District Attorney’s office dropped all charges against Waters and his exoneration became official. Sadly, after only six months of freedom, Waters fell 15 feet off a wall taking a shortcut home. He died on September 19, 2001.
Betty Waters, as the administratrix of his estate, filed a lawsuit in U.S. District Court in Massachusetts in 2004 against the town of Ayer and several of its police officers. On Sept. 17, 2009, U.S. District Court Judge George O’Toole, Jr. ordered the town and its insurers to pay Betty Waters $10.7 million in compensation for their actions that led to the wrongful conviction and imprisonment.
The order noted Waters was frequently suicidal and in deep despair while in prison and that “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.”
A doctor stated that Waters “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.”
Waters’s case, and the extraordinary efforts his sister took to secure his exoneration, were also the subject of the 2010 feature film, “Conviction,” starring Hilary Swank and Sam Rockwell.
– Ken Otterbourg
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