Court upholds man's prison term for abducting, raping women in Forest Hills, Mission Hill in 2004

The Massachusetts Appeals Court today upheld Dwayne McNair's 16-year prison sentence for raping two women he pulled into a car and raped with a pal, rejecting his argument that the five years between his indictment and his trial violated his constitutional right to a speedy trial.

The court agreed that five years is a long time, but said the state had a legitimate reason for seeking one delay - it was attempting to prove whether a novel DNA test could differentiate McNair from his identical twin brother. More important, the court said, McNair and his lawyer didn't raise the issue of delay until 1 1/2 years after his indictment, shortly before the Suffolk County District Attorney's office voluntarily dismissed charges against him to study the new DNA test and then again only 3 years after the DA reinstated charges against him.

Despite the almost five-year delay between accusation and trial, the defendant's constitutional right to a speedy trial was not violated. As the Supreme Court has observed, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." Barker, 407 U.S. at 522, quoting Beaversv. Haubert, 198 U.S. 77, 87 (1905)

McNair was initially charged with two rapes.

According to the court's summary of the case, on Sept. 21, 2004, he and his pal spotted a woman walking home near the Arboretum, pulled her into their car and, when she tried to escape, McNair slammed a gun into her head. They drove her to a garage-like shed, took turns raping her, took her IDs and other possessions, then drove her to Franklin Park and kicked her out of the car.

A week later, they struck again, this time with a college student walking home in the area of Parker and Hillside streets on Mission Hill, whom they beat in the head with a gun and then drove her to Franklin Park. She, too, tried to run, but they caught her, punched her in the stomach, then took her to a wooded area and took turns raping her.

Both women went to local hospitals, where they provided DNA samples, but police could not find a match. Several years later, however, police, still on the case, began to focus on McNair - whose mother had a garage-type shed. Police staked out the residence, spotted McNair near there, smoking and eventually discarding a cigarette, which they then collected to test for DNA, which returned a match found in the samples taken from the two women.

McNair and the other man, Anwar Thomas, were charged in 2012. Thomas pleaded guilty and agreed to testify against McNair - whom he said he could differentiate from his twin.

In 2014, though, prosecutors asked for a continuance so they could use a new DNA test system to see if it could differentiate between the two men. The judge in the case said that would violate McNair's right to a speedy trial, so prosecutors filed a "nolle prosequi" to drop the charges - but just until after they could complete their review. Several months later, they re-indicted him.

At trial, the judge would not let them use the evidence from the test, but prosecutors had enough other evidence - such as height and speech differences between the two - to convince a Suffolk Superior Court jury to convict him in 2018; after which a judge sentenced him to 16 years in state prison.

In its ruling today, the appeals court concluded there was nothing malicious in what prosecutors sought to do with the test. And they said McNair's attorney should have raised the speedy-trial issue a lot sooner than three years after the reinstitution of the charges.

Although the evidence was ultimately deemed inadmissible at trial, there is nothing to suggest that the Commonwealth's actions were taken in a deliberate attempt to delay the proceedings. ... As the trial judge noted, there was no indication that the Commonwealth was unprepared for trial or otherwise motivated to delay the trial for the sake of delay.

Indeed, within approximately four months, the Commonwealth promptly obtained the additional testing, reindicted the defendant,and presented the bulk of the discovery to the defendant at arraignment.Although additional discovery and hearings encompassed roughly three more years, the subject matter was unique and complex and there is no indication that the Commonwealth was the cause of undue delay in the discovery and hearing process. ...

As outlined in its opposition to the defendant's motion to dismiss, the Commonwealth faced a situation where the defendant would likely argue to the jury that they could not conclude that he was guilty beyond a reasonable doubt because his twin brother could not be excluded. The defendant would also likely argue that the jury could not rely on the testimony of the cooperating codefendant,Thomas, because he had a strong incentive to lay blame on the twin upon whom the Commonwealth's investigation had already focused.Indeed, these were the very themes pressed by the defendant at trial.Thus, the Commonwealth's attempt to secure cutting-edge evidence that could distinguish the defendant from his twin was not a frivolous lark but rather a serious pursuit in the interests of justice.

The court continued that while McNair's lawyer first raised the speedy-trial issue a year and a half after the initial indictment, the issue then didn't come up again until three years after the charges were re-brought:

Rather, he engaged in pretrial proceedings for three additional years before again asserting his speedy trial rights by way of a motion to dismiss in August 2017. Thus, "[t]he record does not indicate the defendant's zealous pursuit of his right to a speedy trial." Lanigan, 419 Mass. at 19.