Appellant McCowen Brief - Mass Cases

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the grand jury, a motion never resolved by the court, which was clear errox. Tf. 2778-2783,3675-77. It is axiomatic that an indictment premised upon knowingly false testimony cannot stand. Commonwealth v. O'Dell, 392 Mass. 445, 446-449 (1984). FOf this reason as well, this Court should reverse these convictions. VII. MEDXA FRENZY -TED CHANGE OF VEMUE/SEQUESTRATION. The trial court erred in refusing to change venue, or sequester, ignoring the disastrous impact lurid publicity would and did have on this case. See Commonwealth v. Angiulo, 415 Mass. 502, 515 (1993); Commonwealth v. Jackson, 388 Mass. 98, 109 (1983); Tr. 35. Seldom has a case so divided a community, or so stoked pre-trial publicity, as this one. A case i3hould be transferred "to another division or county ... if the court is satisfied that there exists in the community where the prosecution i s pending so great a prejudice against the defendant that he may not there obtain a €air and impartial trial." Mass. R. Crim. P. 37(b)(l). Pre-trial publicity about McCowen never waned. Upon his arrest, the prosecution issued a "SOLVED" poster, plastered on its website right up to the start. of the trial. Media coverage cast McCowen, a black man in a decidedly white community, in a "highly unfavorable light.." Commonwealth v. Bianco, 388 Mass. 358, 367 -57-
(1983). The trial court‘s media packet proved the point, yet it refused to change venue or sequester. Tr. 35. Media frenzy ran at fever pitch during trial, when the jury was not sequestered, was watching TV news, reading about the prosecutor’s nomination as a judge on the front page, and conversing out of court about the case as four jurors admitted during post-trial hearings. These abhorrent crimes, their devastating .impact on so many Cape Codders, and the negative way McCowen was repeatedly portrayed by local media made it impossible to seat a panel of impartial, indifferent jurors in Barnstable County. The case should have been transferred to protect his right to a fair trial. U.S. Const. Amend. 14; Irvin v. Dowd, 317 U.S. 717, 122 (1961), When failure to change venue abrogates this fundamental sight, due process is violated, see Groppi v. Wisconsin, 400 U.S. 505 (1971); Rideau v. Louisiana, 373 U.S. 723 (1963). especially when accusations are “so shacking and repellent in the crime or the circumstances as to suggest that community opinion might be set against the person accused.” Commonwealth v. Blackburn, 354 Mass. 200, 204 (1968); Commonwealth v. Smith, 353 Mass. 487, 489-90 (1968). Ghastly publicity raged before, during and after McCowen’a motion which the court tried tu handle unsuccessfully. Tr. 3769-3770. Its denial abrogated due -58-
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COMMONWEAITH OF MASSACHUSETTS SUPRE
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TABLE OF CASES Commonwealth v. DiGi
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Commonwealth v. Laguer 410 Mass. 89
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Commonwealth v. Freeman 407 Mass. 2
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Turner v . Safley 482 U.S. 78 (1987
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on November 16, 2006 App. 52. That
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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 and 44: (whether the defendant or the polic
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
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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
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Appellant McCowen Brief - Mass Cases

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