Clerk: SJC 12998,
Commonwealth v. Arthur H. Davis.
-: Great. Ms. Speight?
-: Good, still morning.
May it please the court,
Hallie White Speight, assistant district attorney
for Middlesex on behalf of the Commonwealth.
In allowing the defendant's motion for a new trial,
the motion judge failed to evaluate the role
of the forensic evidence in the Commonwealth's case
and in the defendant's trial.
He failed to evaluate it
in the context of the entire trial record
and in doing so he made a clear error
in weighing the factors relevant to the decision
such that the decision falls outside the range
of reasonable alternatives, and this court should reverse.
The forensic evidence simply was not a central issue
at trial as the defendant argued and the motion judge found.
It was- -: Now, Counsel,
can I stop you there?
I mean, if it wasn't a central issue
or a real factor, why then in closing
did the prosecutors spend so much time going
over the various pieces of evidence,
in particular the pool cue as the weapon, the comforter,
oddly in the bathroom, the blood stains on the pants,
all those seem to come up
I wouldn't say exclusively in the closing
but they certainly were a real factor in the closing.
Something that the Commonwealth used
to persuade the jury to come to its conclusion.
-: It is true that the prosecutor mentioned
the forensic evidence in closing.
If you look at the entire closing,
it's not the central argument, it's not the main focus,
and it's not the most forceful argument.
And this court has said in the DiBenedetto case
I think it's the 2016 iteration of DiBenedetto,
it's cited in my brief at page 38.
The mere fact that something is mentioned
does not automatically make it a real factor.
And I, if I can just pause here
to ask the court to consider that language a real factor
in the jury's deliberation.
I think it is being deployed (sighs)
in ways that tend to dilute its meaning.
If you look at it in context,
in the Grace case, what this court said was
a judge must find a substantial risk
that the jury would have reached a different conclusion.
The new evidence must carry a measure of strength
in support of the defendant's position.
And this real factor language is merely meant to say
that the evidence does not all by itself have
to completely exonerate the defendant
or throw the conviction into doubt.
Real factor, the real part of that has
to carry some weight.
That word real, this was a factor.
It probably helped the jury feel better about convictions
but it was never the focus of the Commonwealth's case.
-: How do, how do we take into account the fact
that the statement was challenged, right?
So, if you have a statement that's challenged,
then the jury, as you just said, takes comfort
in the fact that there is
as the forensic evidence used to be called witness
for the truth, that's what they called DNA evidence
ironically now, right?
Wouldn't the fact that we have a statement called
into question, but then the heft of it is,
"Well, don't worry about the statement
"of what the police did.
"You've got this forensic evidence.
"It puts him at the crime scene."
-: Okay, if I can say a little bit more
about what the trial record actually is.
There was one statement that was challenged
after extensive litigation, a six day evidentiary hearing,
1,000 pages of transcript, extensive psychiatric testimony.
It was found to be voluntary and admissible.
That statement was witnessed by the person
who was the assistant district attorney assigned to the case
at the time.
So, any allegation that LaMothe fabricated the statement
is disposed of.
There is not just that one statement.
There is the defendant going into work
the day after the murder, telling his,
telling the charge nurse at the nursing home,
"I'm late for work
"because there was a murder in Lowell.
"A young woman was beaten and stabbed to death.
"And the police were all over the street asking people
"what they knew about it.
"And I had to give them a statement."
Trouble with that is the body had not yet been discovered
when he told her that. -: Isn't there
-: So there's that too. -: Isn't there an issue
on that, whether she's misremembering
that it was actually the next day, right?
There's, there, I mean,
I get there's a lot of evidence, but, you know,
there's also a lot of contradictory evidence.
Is he bipolar?
I can't, there's some issue of whether he's bipolar.
We've also got, we got the cigarette, we got the pool cue.
We got the blood on the comforter.
It's a lot of stuff to say that it didn't matter.
-: There's a lot of stuff as, as you say,
and I'm not saying it didn't matter,
but I also want to point out
that I think contradictions is too strong.
The defendant had a different version of when he spoke
to the nurse and what he said to her than the nurse had.
But again, she's a disinterested witness.
There's no reason for her
to want to frame him. -: But isn't there,
in terms of her testimony,
wasn't it different than it had been disclosed
at the police statement?
I thought it in a police statement
she did not mention anything about it being Sunday
or the the church or the mass that she was setting up.
-: That's correct.
In her initial statement, she didn't mention that
but I would argue that doesn't mean,
that doesn't actually cast doubt on the statement.
A day or two after the murder, she says,
"He talked to me about it."
-: Right. But that's still- -: And then it said,
and then, but, -: You're,
I thought your point was that she talked,
he talked to her about the murder
before it was publicly reported.
-: Right. -: So, a day or two matters.
-: A day or two does matter, which is why it would make sense
for her in thinking about it
after she initially talked to the police to remember,
"Oh, it was Sunday because there was the mass going on."
-: Certainly that's one explanation.
The other could be, it was reported in the newspaper.
-: The other could be
that she's making it up to frame the defendant
but that's not what the jury found.
-: Or a third.
She's misremembering.
(Frank and Dalila laugh)
-: Possible, all of that was before the jury.
All of this was before the jury.
The possibility that the blood on the comforter came
from the defendant's sister or the defendant's friend
or the defendant himself, all of that was before the jury.
It was vigorously argued in the defendant's closing.
-: But the problem is -: The Commonwealth
hadn't shown that this was the victim's blood.
-: The problem is just what you said is
that's not what the jury found.
This isn't a civil case with special questions.
We don't know what the jury found
other than finding him not guilty.
And the standard requires us to speculate, essentially,
what if you remove that evidence
would it have been a real factor, right?
We have to put ourselves -: Right.
-: In that.
So, I don't know why you say that's not what the jury found
'cause that's not the case.
-: I, this is the problem with a case like this is
we are called upon to speculate which is something
that this court has said repeatedly we don't do.
We don't speculate what juries do
in the deliberation room and what they talk about
and how they arrive at their verdict.
I'm asking this court to look at the entire trial record,
to look at the strength and the one-sided character
of the evidence
against the defendant. -: But let, I mean,
let's take that for a minute. -: Let me ask you
about that, then. -: Let's take that, counsel.
And you're pointing out
that we don't speculate what the jury did and that's true.
But what we do do, when we have a question
with regard to evidence like this, is we look
at the whole case, as we would assume the trial judge did
and we say, "Well, what role did that play?"
And the kind of physical evidence that was admitted
at this trial was very persuasive in those years.
That was what the physical scientific kind of evidence was.
You know, "Oh, blood secretor.
"Oh, you know, this is great, great evidence"
but now we know it's not
and we've got DNA evidence that shows that it may not be him
on those, in those scientific, you know, the group,
the blood group has nothing to do with it really.
We're got, we have better evidence.
So, how can that not matter?
-: I think if you look at what this evidence is
and where it came from, I think to say,
"It may not be him," is, it doesn't have that force.
I mean, if you look at let's, if we're speculating
and if we're doing a thought experiment,
okay, we're trying to figure out what does the jury do
without the DNA, without the forensic evidence?
Well, let's look at it the other way.
What if all they have is the forensic evidence?
I don't know
that this case survives a required finding motion.
-: Well, it could (indistinct).
-: I mean, I know that's not the standard
before the defendant jumps up
and says I'm applying -: Please, if you,
-: The wrong standard.
-: You have to give me a chance to ask a question.
If they swabbed the telephone and they found all sorts
of DNA on a telephone, that's, you know,
that's neither here nor there.
It could be a stranger.
Someone could have used the telephone.
The murder weapon is a little bit different
don't you think?
-: Okay, can I just, there is something that it is not
in my brief, and I wish it were.
The serologist from the independent lab,
John Cope Abbott testified
that wiping down the object with the filter paper
to detect the occult blood could in fact remove the blood.
So, and that's somewhere around the end of volume five
of the transcript, I think.
-: Could you finish- -: So, we have not shown
that there was never any DNA.
-: Counsel, counsel,
could you finish that thought?
So, you, the serologist testified
that the pool cue could have been wiped
and that would have removed -: That it was,
it was wiped by crime lab personnel,
occult blood was detected,
but then later on we can't find blood on it.
It could have been wiped off by the test
that detected the occult blood.
So, and I argued this in my opposition to the motion
for a new trial.
The defendant has the burden.
If he wants to say this evidence is not there.
One of the things he has to show is that it was never there.
And he hasn't done that.
And where -: Could you talk about,
-: Where's he's relying on an absence of evidence
I think that's part of the burden.
-: So, we need to, as you said,
look at how strong the case is, and I'm not saying
that it's not a strong case.
The defendant has many different stories going.
He testifies that he's in the area
and we have that statement
to the employee at the nursing home.
But jurors, if jurors love anything,
they love corroboration because it gives them comfort.
And if you pull out the murder weapon, the cigarettes,
which really got a lot more play than its weight,
actually, in the trial, and the PMs, and you pull that out,
really what you're left with are statements
of the defendant and the nurse's statement.
And so, when you have that situation, can we say,
I'm not saying it wasn't, you know, a good case,
but can you really say, "It's not a factor?"
It being the, you know,
this forensic evidence that it's not a factor
in the jury deliberations when everything else is coming
from the defendant minus the, what the nurse said
which again was a statement of the defendant?
-: I just, I would like to remind the court
that the rule 30 standard is serious doubt
of the justice of the conviction, a substantial risk
that the outcome would have been different.
Obviously, yes, there is a possibility
that this could have come out,
this case could have come out differently
without the forensic evidence.
Is it a substantial risk sufficient to overturn a conviction
that has withstood repeated challenges over 35 years
and overcome the prejudice
to the Commonwealth? -: But all-
Hallie: And having to try the case again?
-: But all that, all the blood evidence, you know,
when it all gets wiped out,
not just little bits and pieces of it, but all of that?
-: Not all of it. -: What is left of it?
-: The defendant literally had blood on his hands.
-: The defend, there's clearly a lot
of blood in this case that has nothing
to do with the case. -: Half of the blood samples
from the comforter, no conclusion could be reached.
-: Right but, -: About,
-: We also have a -: Conclusion.
And that's, obviously, that's not admissible
in the Commonwealth's case in chief at a trial
but it undermines the assertion
and it suggests the defendant hasn't met his burden to show
that all the evidence is removed.
-: Is there any scientific evidence connecting him
to the murder, any whatsoever?
'Cause all that that the Commonwealth sort of tries
to put in has been shown to be irrelevant.
So, is there any scientific evidence left
that, as Justice Lowy talks about,
provides corroboration there
as opposed to the, and I'm not saying there's not,
there isn't sufficient evidence to retry him,
but is there any scientific evidence
that survives all of this testing?
-: There's the blood on the defendant's hands.
-: What, the blood of what? It's not her blood.
You know, -: We don't know that.
-: He's a nurse and there's blood all over the place
that's been shown to have nothing to do with the case, so.
-: And he had an explanation
for all the other blood evidence too.
And by the way, the murder weapon-
-: Which may, by the way, may all be true.
Hallie: Which might be.
-: That it- -: But might be,
but it also doesn't, it also doesn't suggest, it doesn't,
you don't get from that to "He didn't do it," easily.
-: Well, the standard is, -: This was four days
after the murder.
-: You have to prove him guilty beyond a reasonable doubt.
Right?
-: And the evidence apart
from the forensic evidence was,
and I don't want to say sufficient
because that's not the standard.
It was extremely strong.
And it was one-sided.
It all came from the defendant himself.
-: If that's the case, -: And-
-: If that's the case,
why did the prosecutor have to go so far
with all this other stuff?
-: Okay, I think, I think if this (indistinct) looks
-: Was like a reach to begin with
and instead it's got blood on it, it's,
it meets this sort of bag that he's carrying.
It just, can we really just say,
"Wow, I could just decide this didn't make a difference
"to the jury?"
'Cause I can't do it.
And I, by the way, I was a single justice.
I looked through this a lot.
It's confusing.
I don't know what to do after reading all of this.
-: I think we look at the evidence that remains
without the forensic evidence.
It is extremely strong.
It is one sided
that the defendant provides his own explanation
for virtually all of the Commonwealth's evidence
is something we take into account.
This is not, my point is this is not a case like Sullivan
where you have two purported eye witness accounts
mutually exclusive, not just incompatible,
mutually exclusive, both witnesses
with serious credibility problems,
both of whom were involved in the murder.
And you have this tiny bit of blood
on the sleeve of the jacket.
And that's the, that tips the balance.
-: Chief, could I ask a- -: This is not that.
You can believe everything the defendant argued.
And by the way, he argued below
that none of this blood evidence was connected to the crime.
You can believe all of that.
All of that can be true.
And it doesn't shake -: Can you give me
a chance for question. -: The other evidence.
-: The question I have for you is,
I believe it's in Mr. Siegel's brief
where he cites some out of state cases
where there was a statement of a defendant,
an inculpatory statement, new DNA,
and a new trial was allowed.
I know these are really fact specific cases
and we have a number of them DiBenedetto, of course.
But did you run into any cases
that are the opposite of what Mr. Siegel cited to us
that say that when you have an exculpatory DNA,
if there's a statement, you don't get a new trial.
-: I, just the presence
of a statement obviously is not decisive.
You look at the way all the evidence fits together.
This is not,
the blood evidence here,
the evidence that's been removed,
does not affect the credibility of the statement.
It doesn't affect the credibility of the nurse's statement.
You can accept everything that, you know,
all the forensic evidence has been removed from the case
and still find that that statement is compelling.
That statement was-
-: Go ahead Justice Gaziano. -: It's (indistinct) right?
-: It was voluntary.
-: No.
Anyway, I asked if you,
-: I, no I don't.
But I would say
that I think this case is more like DiBenedetto
than it is like the cases on which the defendant relies.
-: Counsel, one follow-up question is
that you say you can take out all the forensics evidence
but that's not exactly what we would be doing.
We would also be adding some forensic evidence wouldn't we?
-: No.
-: No? -: I don't think so.
-: The DNA evidence wouldn't be admissible?
-: I, look, if the defendant wants to put
in an expert to say, we, you know,
there's the victim's DNA is not on things that were seized
from the defendant's home four days after the murder,
then maybe those inconclusive results have to come in too.
That's a case by case determination.
And even if you get to put in an expert to say without,
you know, without contradiction,
"There was no DNA of the victim found
"in the defendant's home four days after the murder."
I don't think that that carries any particular measure
of strength against a statement that is voluntary.
The defendant does not now claim otherwise.
And that clearly inculpates him.
And by the way, the murder weapon is not the pool cue.
The murder weapon was that concrete wall in the alcove
underneath Lowell City hall, where he banged her head
against the cement, that was the fatal blow.
She may have been struck by the pool cue.
She may not have been.
There were some bruises that were consistent
with being struck by a rod,
but the murder weapon was those stairs.
-: Anybody have any other questions? Okay.
Thank you, Attorney Speight. -: All right, thank you.
I appreciate the extra time.
And I would ask this court to consider the entire record
and reverse the motion judge's decision.
Thank you.
-: Thank you.
Okay. Attorney Siegel?
-: Good morning, Chief Justice Budd, may it please the court.
I am David Siegel on behalf of Arthur Davis
with me in this matter is Attorney Christopher Schultz
of Burns and Levinson.
It's remarkable how times change.
In 1986, the Commonwealth summarized its closing argument
at trial with these two sentences.
Quote, "The physical evidence
"at the scene matches his statement.
"This physical evidence from his home tends
"to show that this defendant is the person who killed her."
11 years later in 1997 in a habeas litigation,
the Commonwealth argued, quote,
"Ample physical evidence linked Mr. Davis to the murder."
And it cited specifically a violet color gym bag,
the lower half of a pool cue, a blue jacket,
a pair of corduroy pants
each of which had bloodstains
of the same type as the victim.
The Commonwealth argued this evidence was so strong,
even if the custodial statements were erroneously admitted
that was harmless error.
Yet in 2021, these same items
of physical evidence are somehow, quote, "Equivocal"
because the evidence, the forensic testimony
at trial was somehow essentially in equipoise
because Mr. Davis had explanations for it.
Somehow, according to the Commonwealth,
Mr. Davis's explanations
for the physical evidence were so persuasive
that the jury accredited them
over expert forensic testimony
while at the same time rejecting his testimony
that he was innocent.
Now, there's no legal doctrine that precludes this kind
of U-turn of the government in its argument
about the significance to the jury of this evidence.
But common sense suggests this U-turn should weigh heavily
in this court's assessment
of its credibility and its persuasiveness.
While the government's arguments have flip-flopped
for 35 years,
Arthur Davis has maintained his innocence of this crime.
That was his defense in 1985
and it remains so today.
It was his defense over seven days of trial,
after which the jury deliberated for three full days
before reporting it was unable to reach a verdict
and only reached one
after it was given a Tuey-Rodriguez charge.
It's his defense now after DNA testing
in 2014 and 2015, eliminated,
as Justice Kafker suggested, any physical evidence
in this case.
There is no scientific evidence left.
There is no forensic testimony left.
There is no connection in physical evidence
or forensic testimony
between Arthur Davis and the scene of this crime
or between Arthur Davis and the victim in this crime,
because that testing is potent, pertinent,
and credit worthy to fundamental issues in this case,
the evidence and testimony it eliminated
likely were real factors in the jurors-
-: So, what do we, what do we do, counsel,
with the now conclusively determined voluntary confession?
-: Justice Wendlandt, as you know,
Justice Kirpalani did not reach our second motion
for the new ground and the motion for new trial
but he did consider that statement.
He, in fact, found a substantial risk of miscarriage
of justice, eliminating all the physical evidence.
And he explicitly did so, quote,
"Not withstanding what he termed were
"a potentially inculpatory statement,"
but he said, while we know from,
we know it cannot be known what weight the jury gave
their statements where the prosecution
also argued the physical evidence tied Davis
to the scene based on his similar blood group.
And the standard in this case,
the standard of review is not
whether the jury would have acquitted Mr. Davis
without this evidence.
It is not, with all due respect,
whether this court sitting as a 13th juror would
have nevertheless convicted Mr. Davis.
The standard is whether the elimination
of this evidence would have been a real factor in this case
as it was tried to this jury.
And the DNA tests go directly to the fundamental issue
in this case.
Was Arthur Davis the person
who fatally beat Patricia Richard
outside the Lowell City Hall on February 10th, 1985?
The Commonwealth conceded this point
in the 2018 motion hearing
when Justice Kirpalani asked Ms. Speight, quote,
"So, it seems like no one's disputing
"that the physical evidence
"that was tested is not inculpatory at this point?"
To which she answered, "That's correct."
The trial ADA swore an affidavit
that the Commonwealth's theory of the case was
that, quote, "Blood detected on clothing
"and other items seized
"from the defendant's home were consistent
"with being the victim's blood."
The physical evidence and forensic testimony is inseparable
from Mr. Davis's custodial statements
because the Commonwealth sought evidence
to fit the statements rather than to solve the crime.
The Commonwealth obtained
what it purports was an inculpatory statement.
It's sixth statement from Mr. Davis
after over 10 hours of custodial interrogation
of a severely mentally disordered 19 year old.
He had at least bipolar disorder
as diagnosed by a lengthy mental health history.
That statement was not recorded.
It was not contemporaneously memorialized
and it was immediately rejected by Mr. Davis.
And then the Commonwealth sought
to confirm any aspects of any of those six statements
by physical evidence and forensic testimony.
-: Mr. Siegel, can you help me out?
David: Sure.
-: And I should know the answer to this
but I'll ask you anyway.
The statements that came in at trial, were they subject
to a voluntariness humane practice instruction
or were they challenged
by expert testimony or otherwise?
-: They were not- -: By the defense?
-: They were not challenged
by expert testimony, Justice Gaziano,
the jury was given a humane practice instruction.
But again, the question about the voluntariness of-
-: It was at least cross-examination
as to the voluntariness of them at trial?
-: Yes, your honor.
The question though, is the relationship
between the forensic testimony and physical evidence
that's been removed
and the statements that were admitted.
-: What I'm trying to get at is that I think it's a footnote
in your brief of those out of state cases
where it's, suppose just hypothetically,
you had a pristine confession on tape,
no mental illness, police do it completely by the book
and there's absolutely no challenges to that.
And then you have blood grouping tests
that end up being thrown out or because of DNA.
Now we have inconclusive DNA.
Where does that fit if you had that pristine examination
or is that something we should look at
to see just how pristine
that the statements of the defendant were
while we make this analysis about impact?
-: So Justice Gaziano, the, for lack of a better word,
let's call it the pristine statement case, right?
The pristine statement case presents, obviously,
something quite different than this case presents
but I think this court has articulated already how
to consider the result
of newly available evidence that eliminate,
newly available testing
that eliminates the physical forensic testimony.
That would be whether the newly available evidence
has that dual quality.
So, does it both eliminate the physical evidence?
And would it cast doubt on the statement?
The statement- -: And I'm taking off the,
off the books, the, you know,
the issue of false confession as well.
-: There again, as Justice Gaziano,
you're correct to note,
and the single justice's opinion noted this as well.
That issue has yet to be litigated
because Justice Kirpalani didn't need to reach it
but where a statement refers to physical evidence
that is then presented by the government
and where that physical evidence is supported
by forensic testimony,
it's inconceivable that it,
that the removal of that testimony,
even for a pristine statement would not be,
would not be a real factor in the jury's deliberation.
-: So, you're saying they're intertwined?
-: Yes, because I mean, obviously, as you all know,
a severely mentally disordered person could come in
and give a pristine statement to the beliefs
that would be utter, you know, utterly false.
It would be, it would be a product
of a disordered imagination.
Here, what the Commonwealth did was
after it had obtained this reported incriminating statement,
it then went to conduct a search
and it built its evidence on that statement.
It had no bystanders, it had no witness.
It certainly had no motive.
It had only these six statements.
So, it began looking for evidence.
One of the statements mentioned a man with a bag.
So, they looked for a bag,
even though the statement mentioned a white bag
and they found a purple bag, that was close enough.
One mentioned a man carrying a rod.
So, they looked for a rod.
Now, as Ms. Speight mentions,
the medical examiner noted that the means of the head injury
in this case was likely the ground or a curb
or striking with an iron pipe or a baseball bat.
They didn't find any of those things.
They found a pool cue, that was close enough.
Mr. Davis was a heavy smoker, a chain smoker.
So, they looked for cigarette butts
as it wasn't the brand that he smoked
but it was close enough.
The scene was blood spattered.
The victim had been beaten.
So, they looked for bloody clothing.
The corduroy pants that they found didn't fit him.
A comforter obviously is not clothing
but they were close enough.
They were close enough because all those items
as Justice Cypher notes,
were the standard of forensic analysis at the time.
They were serological matches.
The bag had the mysterious red brown stains on it.
But now we know that wasn't blood.
The pool cue was the murder,
was presented as the murder weapon
with the occult blood on it.
But now we know there is no genetic material from the victim
on that pool cue.
The cigarette butt from the scene presented
as having been smoked by a type A secretor,
the only person presented to the jury
as a type A secretor was Mr. Davis.
Now we know, it was smoked by some other male
other than Mr. Davis.
The pants and the comforter,
and even Mr. Davis's winter jacket,
which was a critical piece of evidence,
because this was a bitterly cold night,
all were found to have blood on them.
Except now we know,
none of those had any genetic material from the victim.
Today we know that the physical evidence has
no incriminating significance whatsoever.
And in the context of a fatal beating
and a blood spatter crime scene,
it is, in fact, exculpatory
when newly available evidence is both more credible
than any other evidence on the issue
and it bears directly on a critical issue before the jury.
It's likely to have been a real factor
in the jury's deliberation.
Surely DNA testing is more credible
than any other evidence could have been
on Mr. Davis's physical presence at the scene,
or his physical interaction with the victim.
But it would also bear directly
on the critical issue before the jury,
the credibility of the purported incriminating statement
to inflicting this fatal beating.
How could the jury have weighed that credibility
without considering an absence
of biological material from the victim
on Mr. Davis or his clothes or his possessions?
And we know the difficulty the jury had in this case.
After several hours of deliberation,
it returned to the judge
and it asked to hear again the testimony of three officers,
Officer Abbott, Officer Guilfoyle and Lieutenant LaMothe.
And these were three of the four officers
who had allegedly taken statements from Mr. Davis.
Even after being told it had to rely on its memory,
the jury deliberated for two more full days
before returning and being unable to reach a verdict.
If this incriminate, if this statement rather,
these custodial statements had been so overwhelming
and so incriminating, why did the jury need
to hear them after hours of deliberation?
And then why did it deliberate for another two full days?
We know the jury found the testimony
in this case concerning this statements
to have been unsatisfying.
That's what that length of deliberation
over a seven day trial must have meant.
If it was an abuse of discretion
for Justice Kirpalani to give a new trial in this case,
then it, this court erred in Commonwealth versus Sullivan,
in Commonwealth versus Cowels,
in Commonwealth versus Cameron,
because in each of those cases,
newly available testing eliminated
critical physical evidence
that also was necessary to support or corroborate testimony
by a key witness.
In Cameron, it was the testimony of the victim,
a sexual assault case.
In Sullivan, it was the testimony
of another witness who was a key witness for the prosecution
and it Cowels, the serological evidence, the blood
on the towel that the defendant supposedly used
to clean up with eliminated the testimony
from the star witness of the prosecution.
This case is no different,
except that here the critical testimony
that is now undermined by the absence
of this evidence is the defendant's own statement.
17 years ago in Commonwealth versus DiGiambattista
this court explained the significance of testimony,
of confession testimony in a criminal trial, quote,
this court said, in a,
I'm sorry, I've lost the exact quote from DiGiambattista
but this court said something to the effect that testimony
of a defendant is critical evidence in any criminal trial.
Excuse me, there is no dispute that the evidence
of the defendant's alleged statement or confession is,
quote, "One of the most significant pieces of evidence
"in any criminal trial."
That's from DiGiambattista 442 Mass at 446.
That's what would be undermined in this case,
and for this, for the government to take the position
that somehow this was a case that didn't rely at all
on this testimony, at this point,
the evidence at this point is
to put it mildly not well-founded.
We'd ask the court to uphold the grant
of the new trial by Justice Kirpalani.
-: Okay, thank you both.