Appellant McCowen Brief - Mass Cases

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immediately imposed the mandated sentence of life in prison without the possibility of pasole for first- degree murder with concurrent life sentences on the two other convictions. Tr. 3874. Within days of the verdicts, three jurors reported racial animus and other misconduct during deliberations. McCowen moved for a new trial, and the court granted a hearing. App. 100. Jurors Roshena Bohanna, Noxmand Audet and Huffman testified to racist remarks made by Juroxs Marlo George, Carol Cahill and Eric Gomes. MNTR. 1/10/08, 15-89. Huffman and Audet quoted George assaying 'You can only get bruises like that from a big, black guy." MNTR. 1/10/08, 47-8,69. rill three jurors recalled George and Cahill expressing fear because the "big black man" had stared at them. MNTR. 1/10/08, 15-17,76-7. The three said Gomes told fellow jurors he did not like black people because they were prone to violence and boasted "he was Cape verdian not black." MNTR. 1/10/08, 74-5. Auffman described sequestered juxors playing Catch Phrase, a game George used to mock African-American Bohanna by repeating "I'm a racist." MNTR. 1/10/08, 89. Bohanna had earlier accused George of sidestepping evidence because of racist sentiments. At a post-verdict hearing, Gomes ' aunt Julia Miranda testified her nephew told her many times before trial that he disliked black -15-
people, referring to African-Americans as "niggers." MNTR. 2/1/08, 11-13,20. She said that Gomes had expressed racist views for years and had serious problems with his own African-American heritage. MNTR. 2/1/08, 11-19. Despite the mountain of testimony, the trial court denied McCowen's motion. App. 211. His subsequent motion for a new trial, based upon the Comnwealth's failure to disclose exculpatory evidence including but not limited to Jeremy Frazier's 2003 arrest, App. 251, was also denied. App. 550. McCowen filed timely Notices of Appeal. App. 52-54. Z. THE COURT'S ALLOWANCE OF A MEDICAL EXAMINER AWD A DNA AWALPST WHO DID NOT PERFORM THE ORIGINAL EXWIWaTIOWS AWD TESTING WAS ERROR. Commonwealth pathologist Henry Neilds shouldn't have testified to factual data in an autopsy report written by pathologist James weiner. Tr. 1238-40. Crime Lab Supervisor Christine Lemire also should not have testified to facts and conclusions in DNA test reports when she did not conduct those tests. Tr. 2527-30. The Sixth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights guarantee the accused a right to confront a11 witnesses against him, a "bedrock procedural guarantee that applies to all federal and state prosecutions. Crawford -16-
Page 1 and 2: COMMONWEAITH OF MASSACHUSETTS SUPRE
Page 3 and 4: TABLE OF CASES Commonwealth v. DiGi
Page 5 and 6: Commonwealth v. Laguer 410 Mass. 89
Page 7 and 8: Commonwealth v. Freeman 407 Mass. 2
Page 9 and 10: Turner v . Safley 482 U.S. 78 (1987
Page 11 and 12: on November 16, 2006 App. 52. That
Page 13 and 14: inquired about Arnold's leering at
Page 15 and 16: something and another witness descr
Page 17 and 18: ejected that argument. App. 20-22.
Page 19 and 20: Lemire: We ran two. One standard wa
Page 21 and 22: instant case. Tr. 3427-29. The tria
Page 23: counsel's request, the trial court
Page 27 and 28: factual findings of the unavailable
Page 29 and 30: time-of-death evidence and competin
Page 31 and 32: Diaz, the U.S. Supreme Court overru
Page 33 and 34: 13, 2006, the trial court conferred
Page 35 and 36: necessary "good cause," was reversi
Page 37 and 38: perfunctory dismissal was error. "A
Page 39 and 40: the trial judge's reasons fox refus
Page 41 and 42: judge. Kamara, 422 Mass. at 620; Te
Page 43 and 44: (whether the defendant or the polic
Page 45 and 46: interrogators less likely to use co
Page 47 and 48: a a 0 a 0 1) 0 0 poverty, inebriati
Page 49 and 50: counsel in opening, questioning, an
Page 51 and 52: post-verdict dinner with the prosec
Page 53 and 54: L D D D D B D D I I find ,. [an] af
Page 55 and 56: she "misled the court," was cast in
Page 57 and 58: juvenile, probation, arrest and cri
Page 59 and 60: trial. Despite repeated requests, t
Page 61 and 62: Worthington when he attacked two to
Page 63 and 64: e a 0 The trial court's denial of t
Page 65 and 66: 0 e 0 0 0 Q Q D B other; if with on
Page 67 and 68: (1983). The trial court‘s media p
Page 69 and 70: These questions opened the door to
Page 71 and 72: fX. THESE VERDICTS c. 278, §33E. S
Page 73 and 74: job was to help jurors understand i

Appellant McCowen Brief - Mass Cases

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