Appellant McCowen Brief - Mass Cases

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to point out to the jury that the party with the burden of proof has ... decided not to preserve evidence of that interrogation in a more reliable form, and I they may consider that fact as part of their assessment of the less reliable form of evidence that the Commonwealth has opted to present. a. at 449. Nearly fifteen years after Diaz and six years after DiGiambattista, McCowen respectfully suggests the time has come: the fruits of an unrecorded interrogation should be inadmissible at trial. Alaska was first to require electronic recording in felony cases. Stephan v. State, 711 P.2d 1156 (1985). Since then, six states and the District of Colurnbia have required police to record interrogations in at 'Least some criminal cases. Most allow police to record surreptitiously. where permission is requirrtd, most suspects consent, If the ihnterrogation is lakful, no valid challenge to admissibility exists and a major cause of wrongful convictions is eradicated. The Alaska Supreme Court noted: "[a] recording ... will aid law enforcement ... by confirming the content and the voluntariness of a confession, when a defendant: changes his testimony or claims falsely that his constitutional rights were violated." Stephan, supra at 1161. An objective recording makes it unnecessary to rely on selective , potentially biased accounts of what occurred. It opens police practices to scrutiny and renders -35-
interrogators less likely to use coercive techniques, the primary cause af false confessions per Dr. Ofshe. Tr. 3330-3464. This sensational case is the exclusionary rule's poster child. Authors and journalists ridiculed law enforcement and cast aspersions on the D.A.'s bizarre behavior. Police came upon an unintelligent suspect burdened by drugs and alcohol. TT. 1812, 1902-04, 2588- 2590, 2592, 3186. Questions abound about McCowen's physical and mental states, his comprehension and sobriety. His 78 verbal IQ verges on retardation, Tr. 3250-51, yet police described a cognizant, conversant individual interrogated for six-plus hours without food or rest. They claim they offered pizza and bathroom breaks, yet failed to record it. Police had to admit McCowen called Attorney Grefe; the message was on his answering machine. PTH. 468, Tr. 1790. They contend McCowen re-initiated interrogation after that attempt, continuing for more than an how, but a tape WWUM confirm that claim or violated his most fundamental rights. See Commonwealth v. Vao Sok, 435 Mass. 743, 751 (2000). A tape would reveal what happened when McCowen invoked his right. to counsel, whether questioning ceased. Mixanda v. Arizona, 384 U.S. 436, 444 (1966). -36-
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 and 42: judge. Kamara, 422 Mass. at 620; Te
Page 43: (whether the defendant or the polic
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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