But from September 1992 to October 1993, Donovan found himself in that position. Through the barred cellblock windows in Middlesex Superior he watched his buddies shooting hoops at Taylor Park. Sometimes his friends waved and shouted at the barred windows. And when his mom and stepfather visited, he could see them walk down Charles Street. While the proximity to life outside the wall made Donovan's reality significantly darker, in some ways it also assured him that he would eventually return home — if not immediately after his trial, then following a relatively short bid.
What few people understood at the time was that Middlesex County District Attorney Tom Reilly and his assistant prosecutors planned to hold Donovan jointly accountable for the stabbing to which McHugh alone had already confessed. Raustein, an aeronautics and astronautics major, had been slain near the Hayden Library on Memorial Drive, and the outrage surrounding the case was such that sentencing one underage culprit alone — to the maximum of 20 years — would not have been politically prudent.
McHugh, after all, was only 15. So, despite hard and public attempts by Middlesex prosecutors to try him as an adult, a juvenile-court judge ruled in June 1993 that he should be tried as a juvenile. On October 7, 1993, McHugh was sentenced to the maximum of 20 years in prison.
At 18 years old, Velez was well into legal adulthood when his makeshift entourage jumped Raustein. He later agreed to testify against his friends in exchange for a manslaughter plea.
Whereas Velez and McHugh fit neatly into age categories, Donovan was harder to classify, legally — and therefore he caught the short end of the lucky stick. He had turned 17 three weeks prior to the Raustein murder; in the eyes of Middlesex Superior, he was grown enough to face a life term.
Even worse, during his trial — which commenced on October 26, 1993, and concluded two days later — his attorney was decidedly outperformed by prosecuting Assistant District Attorney John McEvoy, who convinced the jury that all three defendants had engaged in a conspiracy to assault and rob Fredheim and Raustein (and that Donovan knew that McHugh was armed). The joint-venture/felony-murder theory was central to his case, backed by critical testimony from Velez.
In order to invoke the felony-murder rule in Massachusetts, prosecutors must prove that the slaying in question occurred in the commission or attempted commission of a crime. If successfully prosecuted, the judge would then mete out a sentence punishable with death or imprisonment for life. Furthermore, a guilty verdict must conclude that the death resulted from the natural and probable consequence of the underlying felony. In other words: McEvoy had to prove that Velez, McHugh, and Donovan set out that Friday night to commit armed robbery, and that — as a result of a felonious chain of events set in motion by Donovan's punch— Raustein wound up on the lethal end of McHugh's buck knife.
Forty-six states currently have felony-murder-type doctrines on the books and, though the statutes are regularly challenged by human-rights groups and legal activists, they are used to try hundreds of defendants each year. Equal Justice Initiative founder and director Bryan Stevenson says: "The tolerance has become so low [with felony murder] that everyone is reluctant to show mercy." Stevenson also says that, while it can be relatively easy to reverse wrongful convictions using DNA evidence, it is much more difficult to exonerate inmates who were "over-sentenced" via joint venture.
