Appellant McCowen Brief - Mass Cases

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The trial court's denial of this motion speaks for
itself. App. 551. The judge noted the Commonwealth turned
over 388 reports, suggesting the defense was trolling and
hadn't specifically requested Frazier's criminal history.
App. 554 * "A prosecutor cannot always know that...evidence
is or might be exculpatory," he wrote, adding that the
attack would not have been admitted because "opening a
pocket knife in defiance of two men in an innocuous
argument is hardly congruent with the brutal st,abbing of
Christa Worthington." App. 557. This posture is wrong.
The Commonwealth preserves the defendant's right to
the judgment of his peers. This judge's view of the
record is not at issue, only what would have happened if
the jury had heard the exculpatory evidence. The jury's
role is critical so when the withheld evidence was
specifically requested, defendant need only demonstrate
a substantial basis for claiming prejudice. Commonwealth
v. Gallarelli, 399 Mass. 17, 20-22 (1987); Commonwealth
v. Wilson, 381 Mass. 90, 109 (1980). The prosecution's
state of mind is irrelevant; due process demanids a new
trial when a defendant is deprived of exculpatory
evidence. McCowen specifically requested the evidence
and need only demonstrate "that a substantial basis
exists for claiming prejudice from the nondisclosure."
Commonwealth v. Tucceri, supra at 412; Commonwealth v.
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