mill ?m 11 "l breaking Prekcp convicte dwelling me 110W Massach requests Hampde below, tl defendar assault a 5425 (hi WES EDIT June 4, :53 FPOml413fal4f-45 COMMONWEALTH OF MASSACHUSETTS EH, s.s. SUPERIOR Nos. 25 lg?ltih ii- iit?s Iv 133L333: (if-Will t- COMMONWEALTH SEP 2 v. 2w i OEOHOE PERROT u, If - Chi-?Hire MEMORANDUM OF DECISION ON MOTION F0 DISCDVERY AND TESTING T0 (IL. C. 373A he defendant, George Perrot, was twice convicted by ajupy of crimes related to the . ?1615?th I I ,1 a I and entering of the home of Emily Lichtala On November 30, 1935, and assaulting Mary in her residence on the same day. The defendant, 1? years old at the time, was 1 of armed robbery, aggravated rape, indecent assault and battery, burglary and assault in a . He was sentenced to life in prison, but continues to assert his factual innocence. Before LS the defendant's Motion for Discovery and DNA Testing pursuant to Chapter 273A of the usetts General Laws which became effective May 17, 2012. Speci?cally, the defendant an order that DNA testing be performed on certain physical evidence and that I order the 1 COunty District Attorney to conduct a search for other evidence. For the reaSOns set forth 1e motion is ALLOWED in part and DENIED in part. PROCEDUBQL )n December 16, 1935, a Hampden County Grand Jury returned indictments against the it. Relevant to this motion are indictments 35-5415 (armed robbery), 85?5416 (indecent nd battery), 35-5418 (aggravated rape), 85-5420 (burglary and assault in a dwelling) and 85a rglary). The defendant was tried befOre Murphy, ., and a jury, and ricted on each Of the indictments On December 14, 1987. He appealed his convictions and Of: 990, the Supreme Judicial COurt reversed and remanded no this COurt fOr a new trial. On ?(Lu F?x (ti-9443a 11 From:413?814?45 Paee:3?1E January 9, 1992, the defendant was tried a second time before Simeons, ., and ajury, and again convicte Appeals claims ir hearing, found 1111 any oura reversed executio This Cor defendar location whether Brett Vo he had It sheet an results 0 the case Judge Si Decemb Officer] Noveml: :1 on each indictment. appealed and on May 3, 1995, tbie convictions were affirmed by Court. On April 25, 2001, the defendant ?led a Motion For a New Trial, raising numerous cluding prosecutorial misconduct during closing argument. Following a non-sevidentiary this Court, Wei-nick, ., allowed the Defendant?s Motion or a New Trial. The motion judge Live instruction?, was error warranting a new trial. On May 12, 2003, the Appeals Court this Court?s order allowing the defendant?s motion for new trial and remanded the case for 1 of sentence. )n January 20, 2006, the defendant filed a motion to preserve ?hair samples" from his case. irt, Sweeny, ., allowed the motion: ?If samples still exist they will be preserved.? The it thereafter filed a motion to compel the Hampden District Attorney?s Office to disclose the of the hair samples. This Court, Sweeney, ., directed the Commonwealth to respond ?as to they know of the existence of any ?hair samples? in this case.? Assistant District Attorney ttero, who represented the Commonwealth in second trial. stated in an affidavit stated that :quested that the FBI and the Spring?eld Police Department search for the hair or hairs, bed :1 gloves from this case. He had not yet learned of the results of his request, but ?based on the fa 2004 search by the Spring?eld Police department and FBI for a rape ltit also related to it [was] [his] understanding that no evidence in the case could be located by either agency." veeney found the Commonwealth?s response to be ?adequate? and requested an update by er 3, 2006. In a further affidavit, ADA Vottei?o advised the Court that Springfield Police ieith Pouliot ?was unable to locate any physical evidence pertaining to the rape of MP. on er 30, 1985 In addition, while Officer Pouilot could not .report what happened to the it ?the cumulative effect of the errors in the prosecutor?s closing, coupled with an absence of SEP-EE-EETJE 11:53 From:413?814?45 physical evidence not introduced at trial, he did state that it was the regular practice of the Spring? 31d Police Department to destroy remaining physical evidence once the case had been concluded. Vottero also reported that he had spoken to Mike Van Arsdale of the FBI and learned 1hat ?all items of physical evidence submitted to the FBI were returned to the Spring?eld Police 13 epartment upon completion of the testing. This includes the hair whose production has been most recently requested by the Defendan Later that month, the defendant moved for ?mds fer DNA testing, which Judge Sweeney denied. A Single Justice of the Massachusetts Appeals Court, Doerfer, ., af?rmed the denial and noted that ?whatever rights the Defendant has are illusory, because the record contains an uncontradicted af?davit stating that the Spring?eld Police Department, as well as the FBI, have con?rm ed that the physical evidence stemming from the rape of the victim on November 30, 1935, cannot be located and it was the regular practice of the police department to destroy remaining physical evidence once the case has been concluded.? On November 29, 2006, the defendant ?led his second Motion for New Trial. On December 5, 2006, this Court, Sweeney,J., ?decline[d] to act on this motion,? effectively denying it based on the "defendant's request to once again review the same issues considered by the Supreme Judicial Court and the Appeals Court.? The defendant ?led a notice of app eal from the denial of his second motion "or new trial, and his appeal was docketed in the Appeals Court. The defendant failed to ?le a brief within the requisite time. Consequently, the Appeals Court dismissed his appeal on May 31, 2007. A year later, on June 6, 2003, the defendant ?led essentially the same motion for new trial, his thirc. Treating the defendant?s claims as waived, this Court, Josephson, ., denied the motion for 11:53 From:413?814?45 Paee:5r?1Eu new trial on August 21, 2008. The defendant appealed, but again failed to prosecute his appeal which was dismissed on March 30, 2009. On November 4, 2008, the defendant filed a Renewed Motion To Preserve Physical Evidence, to wit; ?hair sample?s [sic], bed sheet, and gloves?. [in March 2, 2009, Judge Josephson ordered the I-Iam'pden County Clerk?s Of?ce to confirm the existence of and preserve ?any evidence currently in its possession. Twenty-five (25) exhibits were entered at the defendant?s second trial. The physical evidence at issue in this motion are the gloves (Exhibit 15), pillow case (Exhibit 16) and bed sheet (Exhibit 17). I-Iampden County Superior Court Clerk Brian Lees ?confinn[ed] that 5 exhibit: which were presented at the trial of George Perrot for the case filed under [Docket #85-5412?53 through 85?5420]? will continue to be held by the Hampden County Clerk?s Office. FINDINES After hearing and consideration of the pleadings and attachments, I make the following finding; of fact relevant to the issue before me: On November 30, 1935, MR, age 35, was awakened by the barking of her cocker spaniel sometime between 3:00 and 4:00 am. She went to check in the kitchen but was afraid to open the door in .o the breezeway. Although she had worn glasses for seventy (70) years, she was not wearing them when she went to check the kitchen. When she was not wearing her glasses, she had difficulty with distance and close range vision. After listening in her kitchen for a few minutes, she went into the living room and sat for a while. She returned to her bedroom carrying a heavy wooden stick used to hold a campaign sign. She had just gotten into bed when she heard glass breaking. She jumped out of bed, took her stick and started to go to the kitchen. She walked the eight feet to the kitchen and turned on the light. She saw a white man, standing with his hands over his face. She hit the nan on the head with the stick. He then pulled the stick away from her. 11 the flooi the stick :53 From:413?814?45 Paae:EdlE The man grabbed her, pushing and pulling her to her bedroom. He hit her and knocked her to. There was no light in the room as the window shades were pulled down. The man threw on the bed. After pushing her nightgown up, the man put his mouth on one of her nipples. The man then got on top of her and "molested [her] private part?. She knew the man inserted somethi Beginni assault. minutes were tal that the wavy ha clean-sh she was inconsia were set did not 1 money the room gloves, bed she: mg in her because it felt uncomfortable. The man kicked her in the buttocks or thigh. "1g when she ?rst saw the man, she kept her eyes closed for most of the ?ve to ten minute She did not open her eyes until after the man had left. A?ier the man left and two or three had passed, M.P. opened her eyes and called 911. The police came, called an ambulance and took her to the hospital. Hair and blood samples :en from M.P. and these were sent to the laboratory at the Federal Bureau oflnvestigatiovn After her release from the hospital she provided a statement to the police. She told police man was, young, between twenty (20) and thirty (30) at the oldest, and that he had black, ir. He had been wearing a blue jacket and white sneakers. M.P. said that her assailant was even. About one week after the attack, she was taken to the police station for a line-up but unable to identify anyone. She remembered that the line-up consisted of four men. This Was tent with the photographs of the line-up and Lieutenant Thomas Kelly's testimony that there ren men. When she returned home, she found gloves on her bed. The rainbow colored glove Jelong to her. A purse she had left in the other bedroom was on the kitchen floor and the hat had been in her wallet was missing. Lieutenant Kelly was in charge of the investigation at the scene. Two gloves were feund in 1; one was on the bed and the other was on the floor at the foot of the bed. On the ladies? kni? it the base of a ?nger, there was a reddish brown stain. Lieutenant Kelly folded the soiled ?t from the corners in to preserve some ?bers that appeared. The gloves and the bed sheet ,i 11:53 From:413?814?45 were brought to the evidence locker at the police station and were then taken to the FBI laboratory in. Washington, 13.6., for testing. In addition. Samples of the defendant's hair were sent to that same laboratory. Sergeant Thomas Kennedy observed two vials of blood being drawn by a medical technician I from the defendant?s arm on March 31, 1987. After the blood was dravvn. Sergeant Kennedy took custody of them and tagged them as evidence in the crime prevention bureau. On April 1, 1987, Sergeant Kennedy tool: the vials of blood to the FBI laboratory in Washington, DC. in 1936, FBI Special Agent Eubanks, a forensic serologist. received M.P.'s bed sheet, the women's gloves and other items provided by the Spring?eld Police Department. After examination of the oves, he determined that there was human blood, but in an insuf?cient amount to test for blood type, so he conducted tests for genetic markers. Able to conduct only one such test, he detenni ted that the enzyme type on both gloves was PGM 1. Tie bed sheet tested negative for semen, as did a pillow case which had been talcen into evidence. Unlilte the pillow case. which tested negative for the presence of human blood. there was human blood on the bed sheet. The enzymes identi?t in one stain were PGM 1, BAP BA, HP 2?1, and Approximately eight (8) percent of the population would have this combination of markers. Samples of the Defendant's and M.P.'s blood. had bee ?1 tested by the FBI. Several genetic markers were identified in the Defendant's bloodZwl, GC, and THE. The results of M.P.'s testing were PGM l, HAP, HP 2, and M.P.'s blood was inconsistent with the blood found on the bed sheet. She could not be excluded as the donor of the blood on the gloves. The defendant could not be excluded as the donor of the ood on the bed sheet or the gloves. Hairs were found on M.P.'s bed sheet and on the accompanying packing sheet of brown paper SI. bmitted by the Springfield police. Several were animal hairs, there was some body hair. a 6 li 11 white compar with the question hair. hair was dissimilar with the question hair. He ad touchin he was conduct :53 From:413?814?45 Paae:EflE air, and a Caucasian head hair. Only the Caucasian head hair, brown in color, was suitable for son with known sammes. The samples of the defendant's hair and M.P.'s hair were compared I 3 question hair sample. The defendant's hair was consistent: in all characteristics with the The defendant was advised of his Miranda rights and made statements following his arrest. 'tted that he had broken into home to look for mowty to buy drugs, but denied ever He stated that he ?ed the residence when he heard the barking dog. He admitted that wearing his sister?s gloves when he entered the residence. MP. was unable to identify her asSailant in a line?up including the defendant. CONCLUSIONS OF LAW The defendant?s motion requests that I order the Hampden County District Attorney to a search for certain forensic evidence, speci?cally the sexual assault kit and slides upon which samples of hair, gloves and bed sheet were mounted. Further, the defendant requests DNA testing a Hampd? evidenc 1; his own expense on relevant portions of the physical evidence in the possession of the County Superior Court Clerk. The defendant bears the burden, by a preponderance of the s, to show that: (I) that the evidence or biological material exists; (2) that the evidence or biological material has been subject to a chain of custody that is suf?cient to establish that it has not deteriorated, been substituted, tampered with, replaced, handled or altered such that the results of the requested analysis would lack any probative value; (3) that the evidence or biological material has not been subjected to the requested analysis for any of the reasons in clauses to inclusive, of paragraph of subsection of section 3; 11:54 From:413?814?45 I F'aee??r?lEu that the requested analysis has the potential to result in evidence that is . material to the moving party's identification as the perpetrator of the crime in the underlying case; (5) that the purpose of the motion is not the obstruction of justice or delay; and CG) that the results of the particular type of analysis being requested have been found to be admissible in courts of the cor'nrnonwealth. GL. c. 278A, sec. The Commonwealth argues that the defendant has failed to meet his burden. With respect to the request for an additional search for forensic evidence, I agree. The clear record in the case is that evidence not in possession of the Hampdzen County Superior Court Clerk?s Of?ce was destroyed in the normal course prior to the defendant?s motion to preserve the evidence. This Court and the Appeals Court have previously held that the Commonwealth?s showing on this point is adequate and uncontroverted. I conclude, therefore, that the defendant has failed to meet hit-5 burden .o establish that evidence other than that maintained by the Superior Court Clerk exists. Accordingly, the request for an order that the Commonwealth conduct a further search is DENIED, The defendant further requests an opportunity to test, using technology not available at the time of his trial, the gloves and bed sheet held at the Hampden County Superior Court Clerk?s Office. The goal of such testing is to extract a DNA pro?le that could be compared to the victim an i the defendant, all to be done at the defendant?s expense. I am per tuaded, essentially for the reasons set forth in the defendant?s pleadings, that he has met his burden of establishing that: (1) the evidence exists; (2) it has been kept in the Hampden County Superior Court Clerk?s of?ce since the trial and therefore may have been maintained in a way that would allow for test results with some probative value, and (3) that the requested analysis has the potential to result in evidence material to the defe "rdant?s identi?cation as the burglar and rapist in this case. Accordingly, the testing of these items is ALLOWED. 11: that the insofar Superior Court Clerk. The testing and any resulting DNA analysis will be conducted at the defendant's The Commonwealth?s representatives may be present for the attempt to extract DNA f1 54 From:413?814?45 CONCLUSION om the exhibits and for any DNA testing that might REV. C. Jef nc?r, Alssboiate Justice Superior Co For all of these reasons, the defendant?s motion is insofar as it requests an order Commonwealth eonduet a further search for physical evidence. The motion is ALLQWEZIQ as it requests testing of the gloves and bed sheet maintained by the Hampden County Paae:1EK16 ?l/z-rt/IL 11:54 From:413?814?45 F'aee: 11316 COMMONWEALTH OF MASSACHUSETTS HAMPDEN, as. screams. comatr DEPARTMENT OF THE COURT COMMONWEALTH v- . 35?5415, 16, 13,20, and 23-5: FILED GEORCIE PERROT 1 7 2012 l/ ?anemia-mare when? . If) MOTION FOR DISCOVERY AND DN TESTING SUANT TO 3 or THE MASSACHUSETTS GENERAL LAWS (2i George Perrot (?Mn Perrot?), by and through his attorneys, moves this court, under the 2012 Act Providing Access to Forensic and Scienti?c Analysis (?Access Act?), to order discovery and DNA testing of key forensic evidence relating to his 1992 conviction of rape, burglary, and other charges. As set forth in the accompanying Memorandum In Support of Defendant?s Motion for Discovery and DNA Testing, DNA testing is likely to result in evidence that is material to ruling out Mr. Perrot as the perpetrator of the crimes of which he was convicted. 1. "On December 14, 1985, Mr. Perrot was convicted of unanned robbery, indecent assault and battery, aggravated rape, burglary and assault upon an occupant, and breaking and entering with intent to commit a felony. The following day, Mr. Perrot was sentenced tc prison terms of 15?20 years, 3?5 years, life, life, and years for these crimes respectitrely. On January 9, 1992, after Mr. Perrot?s convictions were vacated by the Supreme Judicial Court of Massachusetts, Mr. Perrot was once again convicted of the I seine crimes and received the same prison sentences. I-ile is presently incarcerated in i HM. KEN L..- 11: 1 A 54 From:413?814?45 Paae:13?16 Shirley, Massachusetts. At all times, Mr. Perrot has maintained that he is innocent of 1 these crimes. See Ex. A, George Perrot Aff. Because the victim of the crimes of which Mr. Perrot was convicted repeatedly refused to Identify Mr. Perrot as her attacker, the Commonwealth? a case for identity relied on expert testimony regarding (1) serological protein analyses of laloodstains on a bed sheet and a pair of Women?s gloves found in the victim?s home, and} (2) forensic microscopic analysis of a hair removed from the bed sheet. VIodern DNA testing techniques were not available at the time of Mr. Perrot?s conviction. See Ex. K, Joan M. BUTLER, FUNDAMENTALS or DNA Tvao 60 Nat?l Inst. of Standards and Tech, 2009). These techniques regularly generate far more iiscriminating results than serological testing and micro?scOpic hair analysis and have the ?potential to result in evidence? material to Mr. Perrot?s ?identification as the perpetrator 3f the crime in the underlying case.? 2012 MASS. ACTS ch. 38 (to be codified at MASS- SEN. LAWS ch. 273A, Non?match results wculd not only refute the Zommonwealth?s now obsolete forenaie testimony, but Would also constitute powerful cindependent, exculpatory? evidence of Mr. Perrot?s innocence. See Commonwealth v. Dr?Benederro, 941 580, 583 (Mass. 2011). DNA evidence is admissible in courts )f the Commonwealth. See Commonwealth v. Rosier, 635 73.9, 7432 (Mass. I 1997); Uommonweolth v. Comes, 933 598, 621 [:Mass. 2010). Depending on the quality of the available samples, Mr. li?errot moves for Short Tandem Repeat or Mini Short Tandem Repeat DNA testing of the stains 0n the bed sheet, the 11: 55 From:413?814?45 Paae:13?16 stains on the gloves, and the sexual assault kit performed on the victim- He also moves for mitochondrial DNA testing of the hair found on the bed sheet. On March 2, 2009, this Court directed that all physical evidence related to Mr. Perrot?s. trial and conviction be preserved. See Ex. 0, Order Granting Mot. to Preserve Evidence, Mar. 2, 2009, Dkt. No. 157. Of the physical evidence, both the bed sheet and the gloves- have been in the custody of the Harnpden County Superior Court Clerk. since Mr. Perrot."s a trial in {1992. The Court Clerk has also maintained samples of the victim's blood. Sea Ex. J, Nicholas Perros Aff. Mr. Perrot and undersigned counsel have been unable to locate the sexual. assault kit and slides containing samples of the hair, the gloves, and the bed sheet, which the Commonwealth?s experts examined prior to testifying at trial. This evidence was last represented to be in the custody of the District Attorney?s Of?ce Office?) in 1992. See Trial Tr., vol. at 427, Jan. 3, 1992 (?Tn By letters dated January 24, 2012 and March 6, 2012, undersigned counsel has requested that the Office conduct a search for this missing evidence. See Ex. Q, Susanna Dyer Aff. By voicema i left for undersigned counsel on April 3, 2012, Assistant District Attorney Jennifer Fitzgerald Fitzgerald?) represented that although she had received undersigned counsel's correspondence, she had not yet ?illy examined the storage bot-t of evidence in her possession. Id. In a conversation with undersigned counsel on April 13, 2012, ADA Fitzgerald stated that she had not located the missing evidence, but that she would continue to look for it. Id. Undersigned counsel again left a voicemail for ADA Fitzgerald on April 30, 2012, but ADA Fitzgerald did not return the call. Id. 11:55 From:413?814?45 Pace: 14316 FOR THE AFOREMENTIONED Ma manor RESPECTFULLY REQUESTS THAT THIS COURT: i A. grant a hearing on his motion pursuant to the Access Alzt; B. order the Of?ce to conduct a search for any missing forensic evidence in any location where this evidence may be stored, including in its own ?les and at the Massachusetts State Police Crime Lab; C. order DNA testing of the available forensic evidence; and D. grant such other relief as this court may deem just and proPer. 11:55 From:413?814?45 Dated: May 15, 2012 Page:15f16 Reapeotfullg?guomitted {Stet "hen L. Braga (Seeking admission pro hae vice) ROPES S: GRAY LLP Drre Metro Center 700 12th Street, NW, Suite 900 Washington, DC 20005-3943 (202) 508?4655 E?o??na G. Dyer 131305545 671694 RUPES GRAY LLP Pr udeotial Tower 800 Boyleton Street MA 02199-3600 (617) 235-4736 51.1 Senna.dyer@ropesgray.eom (Seeking admiseion pro hae vice) RIDPES GRAY LLP One Metro Center 700 12th Street, NW, Suite 900 Washington, DC 20005-3943 (202) 503-4663 nioholee.perros@ropesgray.eom .us-I-w4 i SEP-EB-EEIE 11 I HERE DNA Street, . :55 Frem:413?814?45 CERTIFICATE OF SERVICE .BY CERTIFY that a true and accurate copy of the foregoing Meticn Fer Discovery and. eating Was sent by FedEx to th Of?ce of the District Attorney, Hall of Justice, 50 State Spring?eld, MA 01102, this A day chay 2012. Wm (Egg/(3130a! 67694)