Appellant McCowen Brief - Mass Cases

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[the author] as a witness prevented the defense from exploring the possibility that he lacked proper training or had poor judgment or from testing his honesty, proficiency, and methodology. s. The U. S. Supreme Court found the same constitutional deprivation when the Commonwealth failed to call original lab analysts. Melendez-Diaz, 129 S. Ct. at 2538. McCowen also had no opportunity to address weinex's competence, judgment, proficiency, and methodology. The trial court allowed his substitute Neilds to testify to the contents of the report Weiner authored, thereby enabling the Commonwealth to eviscerate McCowen's right to confront the witnesses against him. Time of death hearsay statements from that report made the commonwealth's case. Hearsay evidence received from State Police Crime Lab analyst Christine LeNire was even more egregious. DNA test results fall squarely within the parametess of Commonwealth v. Verde, 444 Mass. 279 (2005), abrogated by Melendez-Diaz, 129 S. Ct. 2527 (2009). In Verde, this Court held that certificates of chemical analysis did not implicate the Confrontation Clause, because they're ",.neither discretionary nor based on opinion; rather, they merely state the result of a well-recognized scientific test." Verde, 444 Mass. at 283. In MeLendez- -21- .. . . . - . .
Diaz, the U.S. Supreme Court overruled Verde, holding that certificates of analysis prepared in anticipation of trial are testimonial; their admission absent testimony fsom the certificate's author violates the Confrontation Clause. Melendez-Diaz, 129 S. Ct. at 2532- 42 In Commonwealth v. Connolly, 454 Mass, 808, 830 (ZOOS), this Court noted: [Tihe Supreme Court did not grant certiorari in Melendez-Diaz until ... long after the defendant's trial. Although it is not free of doubt, the 'clairvoyance' exception may apply in these circumstances I Arguably, the defendant could not reasonably have been expected to assert at trial a constitutional proposition that we had so recently rejected; it would therefose follow that he could raise the issue now and have us apply the standard for constitutional error, i.e., whether the error was harmless beyond a reasonable doubt. The same is true here. McCowen was tried during October/November, 2006, when Verde controlled. Like the Connolly defendant, McCowen now asks this Court to apply the harmless error standard. Unlike ConnolLy, the erros here was grievous. The Commonwealth's case was built on DNA evidence. The alleged match between McCowen's DNA and that found on Worthington's body was the bedrock of the charges. It provided the only physical link between McCowen and the victim. Police relied upon the purported match to arrest McCowen and to induce statements later construed as admissions. Given DNA's central role, this -22-
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 and 24: counsel's request, the trial court
Page 25 and 26: people, referring to African-Americ
Page 27 and 28: factual findings of the unavailable
Page 29: time-of-death evidence and competin
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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