By Lisa Redmond
WOBURN — A superior court judge has granted an Ayer man whose 35- to 40-year sentence for a 2006 rape was overturned access to the victim’s fingernail swabbings to perform advanced DNA testing.
With Judge Jane Haggerty’s ruling this month, the Middlesex District Attorney’s Office has 30 days to decide whether to appeal the decision, according to David Coutu’s attorney, Amy Belger.
If test results show the DNA belongs to someone other than Coutu, Belger said, “that evidence may exonerate Mr. Coutu, making him the third DNA exoneration out of Ayer alone. Kenny Waters and Dennis Maher being the other two.”
In July, Haggerty overturned Coutu’s 2007 jury conviction for aggravated rape, assault and battery causing serious bodily injury, home invasion, masked armed robbery and burning personal property.
The DA’s Office is appealing that decision, but the judge went ahead with the DNA request to “keep things moving” in the case, Belger said.
Haggerty, who was the trial judge, ordered a new trial after finding Coutu’s rights to a public trial were violated when his mother and one of his sisters were prohibited from entering the courtroom during the three-day jury selection.
Coutu’s mother was subject to a sequestration order during the trial, because it was unclear if she would testify. But that order did not apply to jury selection.
Coutu, 52, has served about seven years of the 35- to 40-year sentence after being convicted of the 2006 rape of a woman using a “cat’s paw” crowbar.
Belger said the conviction was overturned based on a “technical violation,” but said it’s an opportunity to retry the case with advanced DNA testing that wasn’t available in 2007 on the crowbar and the victim’s fingernail scrapings, she said.
After a two-week trial in July 2007, a Lowell Superior Court jury found that Coutu, also known as David Hebert, used a crowbar during the early-morning hours of March 9, 2006, to tunnel his way from an empty apartment into the victim’s 41 West Main St. apartment in Ayer.
The jury heard that the victim awoke to find someone rifling through her drawers. When she screamed, the attacker beat her into unconsciousness with the crowbar, tied her to the bed with her own clothing, then used the crowbar to rape her. Police found the crowbar with the victim’s DNA on it under Coutu’s bed.
The victim testified during Coutu’s trial that she didn’t remember being raped with a crowbar, but doctors testified she had injuries consistent with that type of instrument.
The attacker then set a cardboard box on fire next to her apartment. The smoke set off the fire alarms and emergency personnel found the woman in her apartment covered in blood.
The victim nearly died from the blood loss. Then she had a rare reaction to the drugs doctors gave her in case she had contracted AIDS. She lost 98 percent of her top layer of skin.
Police focused on Coutu after being tipped off by Eleanor Lamb, Coutu’s sister.
Belger said the state crime lab also took swabs of the victim’s fingernails after the victim indicated she had scratched at her attacker. The new YSTR test can isolate male DNA, Belger said.
During the April 2012 motion hearing, prosecutor Bethany Stevens argued the state crime lab indicates fingernail scrapings don’t contain enough material for an accurate test. Belger said her forensic expert disagrees.
Belger also noted that Coutu, who is tall and broad, has maintained he could not have fit through the hole in the wall between the apartments.