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Tash v. Roden

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Before Boudin, Ripple *fn1 and Selya, Circuit Judges.

In 2002 Dewitt Tash was convicted of raping a mentally impaired adult woman in his care at a state facility in Feeding Hills, Massachusetts. The putative victim had no use of her arms, legs or hands and was incapable of communication. The case rested importantly, but not entirely, on Tash’s confession to the crime. After two unsuccessful state appeals, he sought habeas corpus; the federal district court denied the petition but granted a certificate of appealability.

We recount the facts found by the state courts, supplemented with consistent record evidence. Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir.), cert. denied, 549 U.S. 892 (2006). At trial, the victim did not testify and presumably could not have done so given her impairments. The Commonwealth relied instead on testimony from Geraldine Brown, a licensed practical nurse at the facility; Wayne Macey, an Agawam, Massachusetts, police sergeant to whom Tash confessed; and Christopher Fox, a state psychologist who examined the victim and found her incapable of consenting to sex.

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