March 12, 2010

An artist's arresting act of kindness

— If you stop by the North Star Music Cafe at 225 Congress St. on Friday evening, you'll notice that the renowned photographer Donald Verger has opened a show there and is donating 100 percent of the proceeds to the New York City-based Innocence Project.

He's doing it not just because he supports the Innocence Project's quest to free people who are stuck in jail, accused or convicted of crimes they did not commit, but also because only weeks ago, right here in Portland, he was one of them.

''I'd like what happened to me to be an opportunity for something good,'' Verger said Wednesday.

First, what happened.

On the afternoon of Dec. 31, according to Portland police Capt. Vern Malloch, a stylist at Studio One, a hair salon on Middle Street, called 911.

She told police that a man had just come into the salon and asked for an unscheduled haircut. She already had a customer and told him she couldn't squeeze him in.

The stylist thought the man had left at that point -- until she heard the sound of jangling change out by the cash register. Running out to the front of the salon, she saw the man trying to make off with the cash register.

She confronted him. They struggled. She fell to the floor. The man fled empty-handed.

When police arrived, the victim described her assailant as a clean-shaven white man in his 60s, about 5 feet 9 inches tall, 180 pounds, wearing khaki pants and a blue waist-length jacket.

Verger, 61, who moved to Portland three years ago from Casco, generally matches that physical description. On that day, he also happened to be wearing khakis and a dark waist-length jacket.

And alas, after spending the morning out on Peaks Island photographing the back shore in a snowstorm, he was meandering through the shops in the Old Port that afternoon when two police officers approached him on Exchange Street.

While the officers spoke with Verger (he was not yet handcuffed), another officer performed a ''show up'' with the victim -- a common strategy whereby the victim eyeballs the person being detained and tells police whether he's the guy.

After a couple of passes, Malloch said, the woman said, ''That's the man who robbed me.''

Verger, whose donated photography graces places such as Maine Medical Center and Mercy Hospital's new Fore River facility, had never been accused of a crime, let alone convicted of one.

And since he's always taking pictures, the time stamps on the photos in his digital camera would show that he was shooting a Boston Red Sox bumper sticker on Exchange Street while the attempted robbery unfolded 2½ blocks away.

Nevertheless, based on the victim's identification, police handcuffed Verger, told him he was being charged with robbery (a Class B felony) and loaded him -- gently, he notes -- into the back of a cruiser.

''I asked them where they were taking me,'' Verger said. ''And to my astonishment, they told me I was being taken to jail.''

And there he stayed that night, all of New Year's Day and part of the next day, before frantic relatives and friends were able to get to a bank and then post his $10,000 cash bail. (He had trouble at first even reaching them on their cell phones, which don't accept collect calls.)

Like the police, Verger said, the guards at the Cumberland County Jail treated him with ''kindness and respect'' the entire time he was behind bars. Still, he has trouble talking in detail about how it felt to go, in the blink of an eye, from law-abiding citizen to accused felon.

''It's very, very frightening to be accused, to be jailed and in fact to have a charge against you,'' Verger said.

It's also humiliating. A brief story on the arrest, including Verger's name, appeared in this newspaper on Jan. 3. It seemed, Verger said, as if the entire world read it.

'THEY GOT THE WRONG GUY'

Upon his release, Verger made a beeline to Portland attorney Peter DeTroy. And slowly but surely, the cloud over him began to dissipate.

''It was pretty clear early on that it didn't make a whole lot of sense,'' said DeTroy. ''They got the wrong guy.''

For starters, DeTroy said, there was no motive. Verger, known far beyond Maine for his artistry with a camera, didn't need the money.

Then there's his record. Instead of a rap sheet, Verger's resume includes countless acts of philanthropy -- he even founded the widely acclaimed Children's Discovery Museum and the Science Discovery Museum, both in Acton, Mass.

Drinking? Mental impairment? Not according to several witnesses who interacted with Verger that day up to and including the time of the robbery.

Fingerprints? Police dusted the hair salon and found nothing that pointed to Verger.

Meanwhile, as DeTroy and his private investigator built a documented timeline that placed Verger nowhere near the crime, police had the customer who was in the shop at the time of the robbery look at a lineup that included Verger.

The customer, Malloch said, ''wasn't able to identify anyone.''

That left the hair stylist's identification as the only evidence against Verger. Little wonder that on Feb. 6, rather than proceed with plans to present the case to a grand jury, the Cumberland County District Attorney's Office quietly dismissed the robbery charge.

TROUBLE WITH EYEWITNESSES

Malloch said the police department agrees wholeheartedly with the DA's decision to drop the case. And although detectives continue to investigate the Studio One robbery, Verger is no longer considered a suspect.

Malloch acknowledged that when it comes to someone who's innocent, ''three days is too long ... 10 minutes is too long'' to have to spend in jail.

Still, he added, ''I think the criminal investigation system worked the way it's supposed to work,'' by acting on probable cause and then continuing to investigate to determine whether the right person is in custody.

Defense attorney DeTroy takes a somewhat different view.

''People believe overwhelmingly that the most compelling evidence is eyewitness testimony,'' DeTroy said. Yet study after study shows that ''it's pretty unreliable.''

That it is.

Just ask Christopher Gallant of South Portland, who spent eight hours in the county lockup last month after three witnesses mistakenly said he was the perpetrator of a carjacking at the Maine Mall.

He's now contemplating legal action against the city of South Portland.

DeTroy also noted that not all people accused of serious crimes have the means to hire a top-shelf defense team. Had Verger been indigent, DeTroy said, ''I think he would have been indicted (and gone to trial), I truly do.''

That same thought occurred to Verger even as he was riding to jail in the back of the police cruiser. It was an epiphany of sorts, he said, knowing that he was innocent, that he had a lot of well-placed people who would (and did) write letters on his behalf, and that however traumatizing the whole thing was, he would soon get his life back.

But what, he wondered, if he were poor? Or homeless? Or not Caucasian? Or uneducated?

''I don't know that that person would be out of jail and not prosecuted for a crime they did not commit,'' he said.

TAKING UP A NEW CAUSE

That's what got Verger thinking about the Innocence Project, which since 1992 has used DNA testing to exonerate 215 people falsely convicted of crimes, including 16 inmates who were on death row.

In more than 75 percent of those cases, the project reports, eyewitness misidentification contributed to the wrongful conviction.

Though some people continue to tell him that he should sue the pants off everyone involved in his case, Verger says he will not.

Rather, he will hang his stunning scenic and close-up photographs, along with smaller greeting cards and prints of his work, at the North Star Music Cafe starting Friday evening. To buy one, he said, is to make a donation to the Innocence Project, and to people far less fortunate than himself.

Contacted at the project's Manhattan headquarters, Development Director Audrey Levitin said Verger's generosity ''will enable us to free more innocent people.''

''We're deeply grateful to Mr. Verger for bringing his considerable talents to help the Innocence Project,'' she said.

Truth be told, Verger said, he's also helping himself -- in a way no lawsuit ever could.

''This is the direction I want my life to go in right now,'' he said.

That and a slight change in wardrobe.

''Whenever possible,'' Verger said, ''I no longer wear khaki pants.''

Columnist Bill Nemitz can be contacted at 791-6323 or at:

bnemitz@pressherald.com

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