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Date: 04-15-2004
Case Style:
Case Number: 74652
Judge:
Court: Superior Court, Suffolk County, Massachusetts
Plaintiff's Attorney: Suffolk County Massachusetts District Attorney's Office
Defendant's Attorney: Not avalable
Description: Boston, Massachusetts criminal defense lawyer represented Defendant charged with murder.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF
I. INTRODUCTION
The defendant, Laurence Adams, filed a Renewed And Revised Motion For Postconviction Relief. Related discovery motions, and several memoranda and appendixes in support of that motion were also filed and incorporated therein. In the course of postconviction proceedings this Court ordered disclosure of criminal records of Commonwealth witnesses as well as discovery of other documents in the possession of the Commonwealth and the Boston Police Department. At a hearing on May 29, 2002, transcripts of trial and post-trial proceedings, pleadings, memoranda, appendixes, affidavits and documentary exhibits were offered into evidence, and all such documents as submitted by the Defendant and the Commonwealth were accepted into evidence without objection. The findings of fact herein are based upon those documentary submissions, the record in this case, and facts that are uncontested on the record.
While this is not the first Motion For New Trial filed by Mr. Adams, he has for the first time presented newly discovered evidence in the form of the prior criminal records of Commonwealth witnesses, police notes and reports showing prior inconsistent statements of a key Commonwealth witness, and witness statements that were previously unavailable to the defendant, none of which were part of the original record in this case. A review of the full record leads this Court to conclude that the convictions for murder in the first degree and armed robbery must be vacated, and a new trial must be ordered.
II. FINDINGS AND RULINGS
A. Threshold Issues on Postconviction Relief
Rule 30(c) provides that any grounds for relief that are not raised in an original or amended motion pursuant to Rule 30 are deemed to be waived "unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion." As in any case where postconviction relief is sought, ".á.á. interests of finality and the fair administration of justice must be weighed in addition to 'the ever-present concern that justice not miscarry for the defendant.'á" Commonwealth v. Curtis, 417 Mass. 619, 623 (1994); Commonwealth v. Azar, 435 Mass. 675-76 (2002)
The threshold question here is whether the grounds that Mr. Adams has raised are barred by the waiver doctrine. Claims that have been waived will not be reviewed except in "extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449 (1980) See also Commonwealth v. LaFave, 430 Mass. 169, 169-73 (1999). Mr. Adams has raised a number of issues, some based upon newly discovered evidence, some based upon developments in the law, and some based upon the trial record. These claims have been considered in connection with the governing principles of the waiver doctrine, and this Court finds "upon sober reflection," that this is an "extraordinary case" where in the absence of postconviction relief, a "miscarriage of justice" will result. Id.
Certain grounds now raised by Mr. Adams, including grounds based upon newly discovered evidence, "could not reasonably have been raised in the original or amended motion." See Rule 30(c) Mass.R.Crim.P. The newly discovered evidence in this case is of a significant character not only because of the direct bearing that such evidence would have had upon the trial proceedings, but also because it lends new perspective on issues that Mr. Adams sought to raise in previous proceedings.
Pursuant to Rule 30 Mass.R.Crim.P., further consideration of the issues in this case is warranted both in the exercise of discretion, and because certain grounds could not have been raised in the original or amended motion.
B. Rulings Regarding Newly Discovered Evidence
"A defendant seeking a new trial, on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The evidence said to be new not only must be material and credible, Commonwealth v. Brown, 378 Mass. 165, 172 (1979), ".á.á. but must also carry a measure of strength in support of the defendant's position." Grace, 397 Mass. 304. The issue is whether there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial, Commonwealth v. Markham, 10 Mass.App.Ct. 651, 654 (1980), and whether the new evidence "would probably have been a real factor in the jury's deliberations." Grace, 397 Mass. at 306, citing Davis v. Boston Elevated Ry., 235 Mass. 482, 495-96 (1920).
Based upon this standard, the evidence to which the defendant points in this case is newly discovered. The defendant was deprived of access to the criminal records of Commonwealth witnesses, witness statements, police reports, and notes regarding the criminal investigation. Mr. Adams requested access to such evidence in advance of trial, but was denied such access by the Court and by the Commonwealth. Record Appendix at 252. In the course of trial proceedings counsel for Mr. Adams renewed his request for access to criminal records. TR. Vol 3, 273-74. The Commonwealth argued that while such evidence may "border on being exculpatory" the disclosure of such records would violate the newly-adopted CORI law. Record Appendix at 249.
This issue of being deprived access to criminal records was raised before the Supreme Judicial Court, but at that time the record did not show the actual nature of the criminal records., 374 Mass. 722, 732-33 & n.6 (1978). The Supreme Judicial Court noted that it could not find that the defendant was prejudiced by being deprived of such evidence, in part because the Court did not have that evidence in the record. Id. Now the evidence is in the record. This Court ordered the production of criminal records in these postconviction proceedings. There is nothing in the record to indicate that Mr. Adams had been provided with such records at the time of trial, at the first motion for new trial, or prior to the pending proceedings, or that Mr. Adams had actual access to such evidence at an earlier time.
Evidence which is not lawfully available to a defendant at the time of trial, if it later becomes available, is "newly discovered evidence." Commonwealth v. Figueroa, 422 Mass. 72 (1996); Commonwealth v. Dave, 411 Mass. 719, 734-35 (1992) (where a defendant had no right or access to a police report prior to trial, the report is treated as newly discovered evidence). Prior to trial the Commonwealth objected to producing criminal records of its witnesses, and witness statements, and the trial court denied the defendant's motion for such access. With regard to police reports, the record shows that the Commonwealth offered to produce only the "journal entry." Record Appendix at 255, Third Supplemental Record Appendix at 24. These documents which are at the foundation of trial preparation in the typical criminal case, were not provided to, and were not available to Mr. Adams in advance of trial.
With regard to criminal records, the Supreme Judicial Court suggested that there may have been another manner of obtaining this information., 374 Mass. 722, 732-33 (1978). The issue of access to the alphabetical index of records, organized by the names of the defendants, has resulted in litigation in the Courts of the Commonwealth, and later, in the Federal Courts. In 1979 the Supreme Judicial Court found that it was not unconstitutional to prohibit a newspaper access to an alphabetical index of the names of criminal defendants. New Bedford Standard-Times Publishing Company v. Clerk of the Third District Court of Bristol, 377 Mass. 404 (1979).[1] The United States District Court for the District of Massachusetts found that the CORI law was unconstitutional in certain respects. Globe Newspaper Co. v. Fenton, 819 F.Supp. 89 (D.Mass 1993). It was found that the trial courts of the Commonwealth ".á.á. acting pursuant to a relatively recent privacy regime, the Criminal Offender Records Information System, Mass. Gen. Laws Ch. 6 Sec. 167-178B ('CORI').á.á. decline to permit unrestricted access to the alphabetical indices of parties, a convenientùformerly publicùrecord which the Commonwealth has required trial Courts to maintain since before ratification of the United States Constitution." Id. at 90. The Court went on to rule as follows: "I will allow the motion of the plaintiff by declaring unconstitutional that aspect of the Massachusetts scheme pursuant to which the defendants and their subordinates have acted to deny access to the alphabetical indices maintained by courts." Id. at 91. The Trial Court of the Commonwealth, which was the defendant in that case, did not appeal this finding that the CORI law was unconstitutional. As these cases illustrate, the CORI law did result in Court procedures which denied access to criminal case information. When the trial Court declined to order access to criminal record information in this case, Mr. Adams did not have access to such information.
After the decision in the Boston Globe case Mr. Adams' counsel did obtain access to some court records of criminal cases and convictions of Commonwealth witnesses. Upon review of discovery motions which were supported by reference to those records, this Court ordered that full criminal records of Commonwealth witnesses be disclosed to Mr. Adams. Where in the absence of a court order, Mr. Adams did not have lawful access to the criminal records of the Commonwealth witnesses until after trial, and after the filing of the first Motion for New Trial, those records are newly discovered. Similarly, where in the absence of a court order the Commonwealth did not disclose police reports, witness statements, and records of investigation, those documents are also newly discovered. See Commonwealth v. Figueroa, 422 Mass. 72 (1996); Commonwealth v. Dave, 411 Mass. 719, 734-35 (1992). The Court concludes that these records could not have been obtained at an earlier point in time. The record shows that the defendant properly sought such access by filing motions with the Court, the Commonwealth objected, and the trial court denied the motions. The defense raised this matter again prior to the testimony of Wyatt Moore, and the Court again denied access to such evidence. TR. Vol 3, at 273-74. There is no reason to believe that the trial judge, who heard the first Motion for New Trial, would have allowed a renewed motion for access to these records where such a request had been denied prior to trial and during trial. The defendant did not have the ability to obtain these records to support prior motions for new trial or his direct appeal. In the context of these post-conviction proceedings defense counsel pursued access to such records for years through correspondence and requests under the Public Records Act, and the Commonwealth opposed producing such information at every stage, as shown by the extensive correspondence which is now part of the record. The Commonwealth at all times had access to these documents, but opposed providing them to the defendant, even though the assistant district attorney at trial conceded "I personally feel that that evidence borders on exculpatory." Record Appendix at 249.
In addition to being newly discovered, the evidence is material and credible. Mr. Adams did not have the benefit of these records to use for purposes of cross examining Commonwealth witnesses and in otherwise developing his defense. The defendant did not impeach any witness based upon prior convictions as permitted by M.G.L. Ch. 233, Sec. 21. However, the Commonwealth had access to the criminal records of the defense witnesses, and did impeach those witnesses pursuant to M.G.L. Ch. 233, Sec. 21. The Commonwealth, in closing argument, emphasized the fact that defense witnesses had criminal records, and should not be believed, but the defendant was denied the opportunity to fully pursue the opportunity to impeach Commonwealth witnesses on the same grounds.
Furthermore, the defense was not able to cross examine Wyatt Moore and Susie Moore about their serious pending cases and what concessions each expected from the Commonwealth because of their cooperation. The court notes that the day after the conclusion of the Adams trial the pending cases against Wyatt Moore and Susie Moore were resolved. Wyatt Moore pled guilty to two serious firearms charges and armed robbery. He received three years concurrent probation on each. Two escape charges were filed without a change of plea upon the motion of the Commonwealth. Susie Moore's three serious juvenile complaints were dismissed at the recommendation of the assistant district attorney.
The trial record did not show Lynne Susie Moore to have any record of past criminal involvement. The record now shows that Ms. Moore had serious charges, including delinquency by reason of attempted murder, and armed assault in a dwelling. Record Appendix at 123-31. In the case of Ms. Moore, her pending cases and convictions arose from the Juvenile Court. There would typically be no access to such records absent a Court Order. Access to juvenile records for purposes of impeaching Commonwealth witnesses is required by the United States Constitution. Davis v. Alaska, 415 U.S. 308, 316-17 (1974); Commonwealth v. Franklin, 366 Mass. 287, 290-91 (1974). These offenses were on appeal at the time of the Adams trial, yet there were no questions of Ms. Moore as to whether she was offered any promises, inducements, or rewards in exchange for her testimony, or whether she hoped to receive a more favorable Commonwealth recommendation based upon her testimony in this case. If the jury had known of these criminal matters it may well have affected their determination as to the credibility of this Commonwealth witness.
Records that are now part of the record show that Wyatt Moore, a chief witness for the Commonwealth, made inconsistent statements about the "admissions" of Laurence Adams that were alleged to have been made in a private home in Dorchester in December of 1972. These "admissions" were at the core of the Commonwealth's proof and theory of the case. If the defense had access to the police notes, and police reports, the grand jury minutes, and the probable cause testimony, the inconsistencies and changes in Wyatt Moore's descriptions of the alleged admissions of Laurence Adams could have been pointed out to the jury. While each account places Mr. Adams at the scene of the crime, the variations in the statements are significant, and the defense could have argued that the jury should not credit any of the versions of the story as told by Mr. Moore. Notes of the first police contact with Mr. Moore on March 15, 1973 indicate that Mr. Moore initially told the police that Mr. Adams told him that Warren Ambers had beaten the victim. See Third Supplemental Record Appendix at 49. By the time of trial Mr. Moore testified that Mr. Adams did not tell him who did the beating. TR. Vol. 3, at 311. That first set of notes states that, according to Mr. Moore, Mr. Adams said nothing about anything being stolen from the scene. At trial, however, Mr. Moore testified that he was told about such stolen property. TR. Vol. 3 at 312.
It is significant that the statement evolved after Mr. Moore had conversations with Warren Ambers at the Billerica House of Correction. However, at trial Mr. Moore did not acknowledge that he had discussed the matter with Warren Ambers. TR. Vol. 3, at 321-36. The trial court in its instructions to the jury suggested that the jury evaluate how Mr. Moore would have learned about the facts if he did not learn them from Mr. Adams. TR. Vol 6, 728-29. The Police Report dated April 26, 1973 would have allowed the defense to address this question, and it would have allowed the defense to argue that Mr. Moore learned these facts from Warren Ambers. Third Supplemental Record Appendix at 30.
The police investigation files, which were not available to the defense prior to trial, could have been used to impeach Wyatt Moore, Lynne Moore, and Sergeant Whalen. If the defense had access to the contemporaneous notes of Sergeant Whalen, and reports which were addressed to him, he too could have been questioned about the evolution of the statements of Wyatt Moore.
If the defense had access to full criminal records of Wyatt Moore it could have been established that Mr. Moore was held at the Deer Island House of Correction for much of the month of December 1972, until his escape. These records would have impeached the probable cause testimony in which Mr. Moore stated that he heard the "admissions" from Mr. Adams in the "second week of December" of 1972. Similarly, the April 26, 1973 Police Report would have impeached Mr. Moore's testimony that he had discussed this matter only with Mr. Adams and in an interview with Sergeant Whalen at Deer Island in March 1973. The report shows a separate interview with other police officers, and directly states that Mr. Moore learned new information from Warren Ambers. Third Supplemental Record Appendix at 30.
The record now contains evidence that Warren Ambers or Harry Ambers was the person who actually struck and killed Mr. Corry. Mr. Moore initially told the police that Adams told him that Warren Ambers had hit Mr. Corry. Record Appendix at 49. However at trial Mr. Moore said that Mr. Adams did not say which person had beaten Mr. Corry. TR. Vol 3 at 311. While there can be joint enterprise liability when a number of people participate in an offense, access to evidence of the Wyatt Moore's changing story would have bolstered the defense effort to undermine the credibility of the Commonwealth's key witness.
A newly discovered transcribed statement given by Mr. Cahill to Sergeant Whalen indicates that Harry Ambers bragged about committing the offense with his brother. Third Supplemental Record Appendix at 72-79. That statement indicates that a third person had much lesser involvement and "just stood there." Id. If this statement, which was not disclosed to the defense, had been disclosed in advance of trial, then the defense could have sought to introduce evidence that Harry Ambers was the person who committed the offense, that third person was merely present, and therefore could not be found liable as a joint venturer. Furthermore, evidence that another person was the perpetrator is ordinarily admissible as long as it "has a rational tendency to prove the issue," is not "too remote or too speculative," and does not cause undue jury confusion. See Commonwealth v. Rosa, 422 Mass. 18, 22 (1996); Commonwealth v. Keizer, 377 Mass. 264, 267 (1979).
The newly discovered evidence "casts real doubt on the justice of the conviction." There is a "substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Grace, 397 Mass. 303, 305 (1986); Commonwealth v. Fitzgerald, 402 Mass. 517 (1988).
C. Rulings Regarding Exculpatory Evidence
Newly discovered evidence in this case constitutes material exculpatory evidence that should have been disclosed by the Commonwealth to the defense pursuant to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Kyles v. Whitley, 514 U.S. 419, 437-38 (1995); U.S. v. Bagley, 473 U.S. 667 (1986); Commonwealth v. Tucceri, 412 Mass. 401 (1992); Commonwealth v. Gallarelli, 399 Mass. 17 (1987); Commonwealth v. Ellison, 376 Mass. 1 (1978) (convictions for armed robbery and felony murder overturned). Evidence "tending to show a witness's bias, prejudice, or motive to lie is so significant that it is not considered a mere collateral matter but is deemed exculpatory evidence that may be established by extrinsic proof as well as by impeachment through cross examination." Commonwealth v. O'Neil, 51 Mass.App.Ct. 170, 178-79 (2001), citing Commonwealth v. DeBrosky, 363 Mass. 718, 727 (1973); Commonwealth v. Haywood, 377 Mass. 755, 760 (1979); Commonwealth v. Brown, 394 Mass. 394, 397 (1985); Commonwealth v. Schand, 420 Mass. 783, 792-93 (1995); Commonwealth v. Hamilton, 426 Mass. 67, 72 (1997); Commonwealth v. Gabbidon, 17 Mass.App.Ct. 525, 531 (1983); Commonwealth v. Hall, 50 Mass.App.Ct. 208, 212 (2000); Giglio v. United States, 405 U.S. 150, 154-55 (1972); Davis v. Alaska, 415 U.S. 308, 320 (1974); United States v. Abel, 469 U.S. 45, 52 (1984); Liacos, Massachusetts Evidence, Secs. 6.7.1 & 6.9 (7th Ed. 1999); Flannery, Massachusetts Evidence: A Courtroom Reference, Sec. 11.3 (MCLE 1999).
The Commonwealth had possession of certain evidence that it described as bordering on exculpatory, but it opposed producing such evidence. The trial court did not require the evidence to be disclosed. Record Appendix at 252, TR. Vol. 3 at 273-74. Nevertheless, the Commonwealth had an obligation to produce exculpatory evidence. Id. Some of this newly discovered evidence was disclosed in these postconviction proceedings from Police files and may not have been in the files of the District Attorney at the time of trial, but the exculpatory evidence should still have been disclosed. The Commonwealth is presumed to have knowledge of all information in the hands of the investigating police departments. The prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). The Commonwealth has the affirmative obligation to disclose information, including information in the possession of the Police. Commonwealth v. Martin, 427 Mass. 816 (1998). The Commonwealth is deemed to be in possession, and is under the obligation to produce such documents, even if the prosecutor never knew of the information and did not have it in his files. Commonwealth v. Gallarelli, 399 Mass. 17, 20, note 4 (1987).
D. Rulings Regarding Conflict of Interest of Counsel
Subsequent to the trial, initial motion for new trial, and appeal in this case, evidence has come to light showing that Mr. Adams was represented by counsel who had a conflict of interest. The conflict of interest issue was raised in a prior Motion for Postconviction Relief, and was resolved against Mr. Adams., 374 Mass. 722, 730-31 (1978). However, when considering the conflict of interest issue on the prior occasions, neither the Superior Court nor the Supreme Judicial Court had access to newly discovered documents showing the nature and extent of the conflict of interest. Mr. Adams has suffered prejudice and a constitutional deprivation of effective assistance of counsel, due to this conflict of interest. See Commonwealth v. Martinez, 425 Mass. 382 (1997); Commonwealth v. Hodge, 386 Mass. 165 (1982); Commonwealth v. Connor, 381 Mass. 500 (1980); Commonwealth v. Michel, 381 Mass. 447, 453 (1980).
The Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights entitle a defendant to the effective assistance of counsel. A defendant has a right to "untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others." Commonwealth v. Martinez, 425 Mass. at 387-88, citing Commonwealth v. Michel, 381 Mass. at 453, quoting Commonwealth v. Davis, 376 Mass. 777, 780-81 (1978). The Supreme Judicial Court has now held that ".á.á. art. 12 does not require a defendant to demonstrate prejudice, once a genuine conflict has been shown." Martinez, 425 Mass. at 388.[2]
The transcript of the "probable cause" hearing, which is now part of the record, shows that Attorney Melvin Silverman represented Warren Ambers, as a co-defendant of Laurence Adams, at that hearing. That hearing resulted in a finding of probable cause against Laurence Adams, and against Harry Ambers, but not against Warren Ambers. Though the Commonwealth, at trial, presented the case on a theory that Laurence Adams, Warren Ambers, and Harry Ambers were all involved in the offense, care was taken to avoid speaking the name of Warren Ambers at the "probable cause" hearing. For example, in the statement from Harry Ambers, he was asked if anyone was with him in the subway. He answered "Two other people." TR. 8. He was not asked who those people were. As a result, the name of his brother, Warren Ambers, was not mentioned. Similarly, when Wyatt Moore was questioned at the "probable cause" hearing, he was not asked what other people allegedly accompanied Laurence Adams to the subway station. TR. 23-25. The Commonwealth chose not to inquire about Warren Ambers and the District Court found no probable cause. TR. 25.
At the grand jury proceedings, on June 12, 1973, which are now part of the record, Sergeant Whalen testified that Harry Ambers had placed himself, his brother, and Laurence Adams at the scene of the crime. Supplemental Record Appendix at 364-66. Also, at the Grand Jury, Wyatt Moore testified that Laurence Adams, Harry Ambers, and Warren Ambers, were all involved in breaking into cash boxes in the subway. Grand Jury TR. at 5-6; Supplemental Record Appendix at 364-65. The case against Warren Ambers, the original client of Mr. Silverman in this matter, for his alleged involvement in this homicide was not further pursued by the Commonwealth.
At the time that Attorney Silverman was assigned by the Court to represent Mr. Adams, there was no colloquy on the record in which Mr. Adams waived his right to have counsel who was free from conflicts, or where Mr. Adams was advised of the potential of such a conflict. A defendant must not be put "in the untenable position where he would otherwise 'be put to the burden, perhaps insuperable, of probing the resolve and the possible mental conflict of counsel.'á" Martinez, 425 Mass. at 388, quoting Hodge, 386 Mass. at 169-70.
In this case where there was "probable cause" testimony that Harry Ambers was at the subway station with two other people, and that one of them struck the victim with a board, one obvious defense would have been to focus on whether the person using the board was Warren Ambers, rather than Laurence Adams. Mr. Silverman, who represented Warren Ambers could not ethically pursue such an investigation or such a defense. Calling Warren Ambers as a witness would have placed Mr. Silverman in the untenable position of calling his own client to testify in the case of another client. Adams, 374 Mass. at 730-31. Another approach to the defense may have been to lay the blame on the Ambers brothers, and to show that Mr. Adams had no involvement at all. Such a defense could not ethically be pursued by Attorney Silverman because he would thereby implicate his former client as a principal actor in a homicide.
The newly discovered March 15, 1973, investigator notes indicate that Mr. Moore initially told the police that Mr. Adams told him that Warren Ambers struck the victim with a "board or stick." Third Supplemental Record Appendix at 49. The newly discovered April 26, 1973 police report states that Mr. Moore learned about the crime from Warren Ambers, while both were being held in Billerica House of Correction. Moore learned from Warren Ambers that someone was cut on the hand in the course of the crime. The report states: "This is the first time Moore found out about someone having been cut during the break." That report states: "Ambers further told Moore that Mr. Silverman Ambers (Attorney) would help Moore if he would back off on the MBTA job." When Warren Ambers asked Moore if he was "appearing against me" Moore said "No." Third Supplemental Record Appendix at 30. These documents are not conclusive evidence that Mr. Silverman agreed to assist Wyatt Moore at the request of Warren Ambers, but the documents do raise serious questions about the relationships between Warren Ambers, Wyatt Moore, and Mr. Silverman. In the course of trial the Assistant District Attorney stated that Mr. Silverman had also represented Mr. Moore in prior unrelated proceedings. TR. Vol. 3, at 274.
When the "conflict of interest" issue was previously raised, the issue was decided against Mr. Adams. See, 374 Mass. 722, 730-31 (1978). The newly discovered evidence however casts a new light upon this issue and establishes that there was a serious and direct conflict of interest of constitutional dimension requiring postconviction relief.
B. Rulings on Other Issues Raised in Postconviction Motions
The issues of fact and law as discussed above establish that postconviction relief is both necessary and appropriate based upon the governing standards of law, to avoid a miscarriage of justice. The defendant has raised a number of additional issues which do not require extensive discussion in light of this Court's rulings as stated above. Collectively, the issues raised here establish that this is the extraordinary case which requires postconviction relief in order to avoid a miscarriage of justice. Commonwealth v. Azar, 435 Mass. 675-76 (2002); Commonwealth v. LaFave, 430 Mass. 169, 169-73 (1999); Commonwealth v. Harrington, 379 Mass. 446, 449 (1980).
ORDER
The Renewed and Revised Motion For Postconviction Relief is ALLOWED, the convictions are vacated, and a new trial is ordered.
Robert A. Mulligan
Associate Justice, Superior Court
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Notes:
[1] The concurring opinion of Justice Abrams, joined by Justices Quirico and Liacos, recognized that "CORI enshrouds certain records of proceedings in the judicial branch in secrecy and darkness. The trial judge found that under that statute access to records of past proceedings is possible only by 'searching hundreds of thousands of docket entries.á.á. at tremendous time and expense.'á" Standard-Times, at 377 Mass. 418.
[2] The Supreme Judicial Court, in ruling on Mr. Adams' case stated "we have never held that, in the absence of a showing of actual or likely prejudice, joint representation of co-defendants constitutes an automatic denial of effective assistance of counsel." Adams, 374 Mass. at 731. The law at this time is that there need not be any showing of "actual or likely" prejudice. Commonwealth v. Martinez, 425 Mass. at 388. The issues in this case are being reviewed in this Court's discretion, and in light of the "miscarriage of justice" standard. Mr. Adams should have the benefit of the constitutional right to effective counsel who is not burdened by a conflict of interest, as required by Article 12 of the Declaration of Rights. Id.
Commonwealth v. Adams, 2004 MBAR 264 (Mass. Super. 2004)
Outcome: The Renewed and Revised Motion For Postconviction Relief is ALLOWED, the convictions are vacated, and a new trial is ordered.
Plaintiff's Experts:
Defendant's Experts:
Comments: