Appellant McCowen Brief - Mass Cases

conclusion, McCowen did far more than attack pxocedural
delays in DNA testing. App. 560-61. As the defendant's
motion clearly indicated, the Commonwealth knew that
Robert Pino, the person who was involved in McCowen's
DNA match, faced an investigation for misconduct and
negligence at the time he processed McCowen's sample,
but failed to disclose this information. The fact that
the person who matched McCowen to the victim was accused
of misconduct and incompetence likely would have
materially influenced the jury's decision.
The Commonwealth's failure to discloise this
information is particularly egregious given its
constitutional obligation under the Confrontation Clause
to call Pino as a witness. Dungo, 98 Cal. Rptr.:ld at 712
(prosecution committed reversible error when it failed
to call a discharged medical examiner who faced issues
of incompetence and malfeasance) ; see also, IYelendez-
Dim, 129 S. Ct. at 2538 ("the prosecution's fziilure to
call [Pino] 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"). Audits of the Police
Crime Lab in 2001, 2003, and 2004, found mismanagement
while this Case'B DNA samples were processed.
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