Appellant McCowen Brief - Mass Cases

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violation of the court's order. When four other jurors admitted watching TV news and calling each other at home to discuss the case, the court found no fault. Tr. 3705-41. None of the four was thought to be holding up the verdict. The reasons offered for Huffman's discharge were woefully insufficient. Unlike the Garrey defendant, McCowen's rights "under art. 12 of the Massachusetts Declaration of Rights were jeopardized -. and he was otherwise pxejudiced by the juror's discharge." G.L. c. 234A, §74. No "truly unique and compelling circimstances arose that warranted the juror's discharge. " Garrey, a. These convictions must be reversed. 111. THE COURT COMMITTED REVERSIBWE: ERROR WHEN IT FOUND MCCOQEH'S WRECORDED STATEKEKC VOLUWTARP. The trial court erred finding MCCOwen'S April 14, 2005 statements voluntary beyond a reasonable dasubt. App. 20. A statement is "voluntary if it is the psoduct of a rational intellect and a free will and not induced by physical or psychological coercion." Cammanwealth v. LeBlanc, 443 Mass. 549, 554 (2001); Mincey v. Arizona, 437 U.S. 385, 398 (1978). This Court has said: Voluntariness turns on the totality of the circumstances including promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or Lenience -33-
(whether the defendant or the police), and the details of the interrogation, including Miranda warnin(;s. Cmonwealth v. Mandile, 397 Maes. 410, 413 (19186). The Conunonwealth bears the heavy burden of proving a statement voluntary beyond a reasonable doubt, a burden even more daunting when police fail to record the interrogation: [A] judge may reasonably conclude that when the party with the burden of proof beyond a reasonable doubt on the issues of voluntariness and waiver deliberately fails to utilize readily available means to preserve the best evidence of what transpired .- it has not met that very high standard of proof. Commonwealth v. DiGiambattista, 442 Mass. 423, 441 (2004). The Court noted eight years had passed since it announced "[flailure to record ... would not result in automatic suppression ... [but] the lack of a recording was ... relevant .__ on the issues of voluntariness and waiver." Id. citing Commonwealth v. Diaz, 422 ass. 269, 273 (1996). The DiGiambattista Court invited the parties and amici to brief "the issue of requiring elkectronic recording of interrogations," 3. at 440, noted two states did, but declined to follow suit at that time: Despite our view that recording I would improve the efficiency, accuracy, and fairness of criminal proceedings, we still decline at this time to make recording .- a prerequisite to -. admissibility _. FIOweVer, where I. recording i s Left to the unfettered discretion of law enforcement (as it is at present), and an officer has chosen not to record ... we think that it is only fair -34-
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 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: judge. Kamara, 422 Mass. at 620; Te
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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