Appellant McCowen Brief - Mass Cases

time-of-death evidence and competing versions of that
issue were crucial. Tr. 1236, 1244-49, 2936-38. The
Commonwealth introduced weiner ' s findings and
conclusions through Neilds, who also claimed rape
through the report even though no vaginal trauma
existed. Tr.1269-74. This case stands in sharp contrast
to those where time of death was not disputed. See,
e.g., Commonwealth v. Pena, 455 Mass. 1, 15 (2009). It's
also distinct from Nardi where the defendant's expert
used the autopsy report. Nardi, 452 Mass. at 395. The
absent doctor's factual findings were the sole evidence
supporting the prosecution's theory and the
constitutional error is grave.
Like the instant case, People v. Dungo, 98 Cal.
Rptr.3d 702 (Cal. App. 3d Dist. 2009) involved a murder
trial where a substitute medical examiner testified to
facts contained in an autopsy report he didn't prepare.
As in this case, the original examiner was fired from
the medical examiner's office before trial, allegations
of incompetence swirling around him. Id. at 708-12.
Finding substitute testimony unconstitutional, the
California Court of Appeals concluded the State's
failure to call the original medical examiner further
prejudiced the defendant. g. at 714. Quoting Melendez-
Diaz, the court held "the prosecution's failure to call
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