Appellant McCowen Brief - Mass Cases

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
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