COMMONWEALTH OF MASSACHUSETTS

LY MOUTH, ss.

 

COMMONWEALTH,
Plaintiff,
v.
DAR RELL JONES,

Defendant.



 

SUPERIOR COURT DEPARTMENT

No.: 

MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT
DARRELL JONES FOR RELIEF

Dated: October 23, 201 5

John Barter, BBO 032150
83 Atlantic Avenue

Third Floor

Boston, MA 02110

(617) 367?2545
barteri@msn.corn

Lisa M. Kavanaugh,BBO 647261
Innocence Program 
Committee for Public Counsel Services
21 McGrath Highway

Somerville, MA 02143

(617) 607?5762
lkavanaugh@publiccounsel.net

Anthony D, Mirenda, 550587

. Neil Austin, 657204

Foley Hoag LLP

155 Seaport Boulevard
Boston, MA 02210

(617) 832?3051
amirenda@foleyhoagcom
naustin@l?oleyhoagcom



l'V.

VI.

Table of Contents

INTRODUCTION .. 1
PROCEDURAL HISTORY .. 2
SUMMARY OF ARGUMENT .. 4
FACTS .. 8
A. Background of Police Investigation ..8
B. The Eyewitness Trial Testimony "13
C. Testimony of Other Civilians Called By the Commonwealth .24
D. Testimony of Brockton Police Of?cers ..L .26
E. 'l?estimony of Defense Witnesses .33
F. The Commonwealth?s Theory of the Case .34
ARGUMENT .. 35
A. Newly?Discovered Evidence Casts Real Doubt On the Justice of the

Conviction Because It Demonstrates that the Police Tampered With Key
Evidence and Made Misrepresentations of Fact to the Trial Judge. .36

The Evidence Shows That The Commonwealth Failed To Turn Over The
LaGarde Memo Prior To Trial, Raising Concerns Under Brady v. Maryland. 

Jones Was Deprived of the Constitutional Right: to the Effective Assistance of
Counsel Because His Trial Attorney Had Undisclosed Conflicts of Interest. .58

Mr. Jones Was Deprived of his Constitutional Right to the Effective

Assistance of Counsel Because His Trial Attorney Failed to Engage in

Adequate Investigation, Failed to Present Available Proofs, and Failed to
Adequately Confront and Cross-Examine the Prosecution?s Witnesses. ..74

Mr. Jones Was Deprived Of His Right To Due Process, and Justice May Not
Have Been Done, Because His Conviction Was Based On Unreliable and
Unnecessarily Suggestive Identification Evidence. ..91

Conclusion .. 98

I. INTRODUCTION

Darrell Jones was convicted in Plymouth Superior Court on October 2, l986 of the
murder of Guillermo Rodrigues. Mr. Jones has consistently maintained his innocence. Although
he has filed two prior motions for new trial, this Court?s past denials were made without the
benefit ot? the newly discovered evidence at the heart of this motion and, therefore, should not be
viewed  foreclosing reliet?. On the contrary, the troubling new evidence outlined in this motion
demands a thorough reevaluation of Mr. Jones? entire case because it casts serious doubt on the
justice of the conviction.

Using forensic methods unavailable at the time of trial, two experts have independently
concluded that one or more members of the Brockton police department altered key evidence
used to convict Mr. Jones and gave-testimony that Concealed their actions from the jury and the
trial judge. Speci?cally, these experts have concluded that Detective Joseph Smith?s ?innocent?
explanation given at the time of trial for how he erased a key portion of the videotaped police
station interview that he and Detective Donald LaGarde conducted of the prosecution?s key -
witness, Terie Starks (the ?Starks Videotape?) the only eyewitness whose interview was
recorded inconsistent with the video and audio evidence. Instead, the forensic examination
den?ionstratcs that the Starks Videotape was affirmatively edited to omit that key portion.

The newly available forensic analysis, by itself, casts substantial doubt on the fairness of
Jones? trial and establishes that ?justice may not have been done." Mass.  Crim. P. 30(b).
When considered in the context of the numerous other troubling issues present in Mr. ones?
case, this'new proof of altered evidence sheds light: on how those issues converged to create a
miscarriage of justice. The newly discovered evidence reveals that the police not only built their
case against Mr. Jones with suggestive and unreliable identification procedures that have since

been shown to produce unreliable results, but also ignored or concealed exculpatory evidence,

including evidence that would have revealed the content removed from the tape. Additionally, it
highlights how Mr. Jones? trial attorney, Kenneth Elias, utterly failed to challenge or confront the
police on key points and raises the concern that the reason for this failure was that he had a
lawyenclient relationship with at least three of the of?cers involved (including both Smith and
liaGarde). Finally, it reveals the stunning lack of preparation and ineffectiveness of Elias, Who
failed to investigate or present exculpatory evidence and who, years after Mr. Jones? conviction
while before the Board of Bar Examiners, described his trial practice during this period as just
t?sliowing up? and admitted that he did a disservice to his clients.

No court has yet examined Mr. ones? case with the benefit of this newly discovered -
evidence and the light it sheds on the many troubling issues present in the case. With the benefit
otithe complete picture, there can be no doubt that a miscarriage of justice has occurred.
Accordingly, Mr. Jonesvrespectfully requests that this court: release him from unlawful
restraint, (ii) order discovery and an evidentiary hearing,I vacate his conviction, (iv) grant a
new trial, and order any other relief the Court deems appropriate. Mass. R. Crim. P.
30(a), and and 25mm?-

11. PROCEDURAL HISTORY
On December 9, 1985, a Plymouth County Grand Jury returned an indictment charging

Mr.? Jones With murder. A221. Mr. Jones was tried before a jury, with Judge Chris Byron

 

I Concurrently with this Memorandum, Mr. Jones is ?ling Motions for PostaConviction Discovery and for an
l?ividentiary Hearing; this Memorandum is also submitted in support ofthose motions.

'l?his Memorandum, the supporting documents submitted in the attached Appendix, and the trial transcripts are
incorporated by reference into this Motion. The documents in the Appendix are numbered sequentially, and citations
to the Appendix shall be as follows: AFF[page number] (for af?davits), and GJ[page number] (for grand jury
testimony), and A[page number] (for all other documents). In addition, for the cenvenience ofthe Court, Mr. Jones
isproviding the Appendix and other supporting materials on a DVD. 

presiding.3 The trial commenced on September 22, 1986. Tr. 1. On September 30, 1986 the
defense rested, closing statements were given, and the jury was instructed. r.6. The jury retired
at 12:01 PM on September 30, Tr.6/ 79, and returned to the courtroom at 4:40 PM requesting
instruction on ?beyond a reasonable doubt? and asking for transcripts of the testimony of two
witnesses. "1116/8084. The Court provided written reasonable doubt instructions but did not
provide transcripts. The jury returned the following day and deliberated from 9:10
AM to 4:25 PM, when it informed the Court that it could not reach a unanimous verdict. Tr.6/92.
The Court gave a Maj/?Rodriguez instruction, then eircused the jury for the day.

On October 2, 1986, thejury returned for a third day of deliberations. Tr.6/97. At an
unspecified time. thejury asked to see the gun that was placed into evidence. Tr.6/97. Over the
defendant?s objection, the Court permitted the jury?s request. 151. At 2:32 PM, the jury returned a
guilty verdict, and the Court imposed a life sentence. Tr.6/99, 102.

An appeal to the Supreme Judicial Court pursuant to M.G.L. Ch. 278 3313
followed. In its three paragraph decision, the SJC acknowledged that the ?principal contested
question in this case was whether the defendant was the man who shot the victim? and
specifically relied on the Starks Videotape in reaching its conclusion that the issue of 
identification was properly for the jury to decide. Commonwealth v. Darrell one-s, 407 Mass.
168, 169 (1990).

On June 16. 1992, Mr. Jones tiled his first Motion for New Trial, which was limited to 
the issue of whether Mr. Jones was denied effective assistance of counsel in light of the

developing law relating to the admissibility of polygraph evidence. That motion was denied by

 

3 The trial transcripts consist-of six volumes, with certain volumes covering multipie days, as follows: Tr.1
(9/22/86), Tr.2 (9/23/86), Tr.3 (9/24/86), Tr.4 (9/25/86 and 9/26/86), Tr.5 (9/29/86), and Tr.6 (9/30/86, 10/1/86, and
10/2/86). Citations to the trial transcript will be in the following form: 

the trial court, Byron, ., after a brief oral argument on November 25, 1992. A249. Mr. Jones
filed a Notice of Appeal and a gatekeeper petition pursuant to M.G.L. c. 278 and the
petition was denied on March 22, 1993.  A457?46l (Memorandum of Decision, Wilkins, 
Seven years later, on April 25, 2000, Mr. Jones filed his second Motion for New Trial, which
was denied without a hearing by the trial court, Tierney, ., on August 1, 2000. A262. Mr. Jones
thereafter filed a Notice of Appeal and a gatekeeper petition pursuant to M.G.L. Ch. 278 33E.
A270. That petition was denied on July 23, 2002. (Memorandum of Decision,
Ireland. J.).

11]. SUMMARY OF 

In a case that turned entirely on identi?cation, Mr. Jones was convicted on the basis of
thin. and often contradictory evidence. Not one of the six eyewitnesses called to the stand.
identi?ed Mr. Jones in court as the shooter. Moreover, the witnesses whom the police allege
made out?of-court identifications of Mr. Jones testified at trial to not having seen the shooter?s
face at all, or to having seen it only partially and brie?y. By contrast, several witnesses testified
that they saw the shooter and victim standing side-by?side and that there was a noticeable height
difference between the two; yet the defendant was nearly the same height as the victim. No
physical or forensic evidence tied Mr. Jones to the murder weapon or the crime, and there was no
evidence that Mr. Jones and the victim knew each other, let alone that Mr. Jones had a motive to
commit the crime. Mr. Jones willingly remained at the crime scene after the shooting, where he

spoke with the police and was displayed as part ofa crowd to two eyewitnesses, neither of

 

4 Mr. Jones is mindful that this legal memorandum is significantly longer than most, and appreciates the Court?s
efforts to wade through the numerous and complex issues involved in his case. To assist the Court, counsel has
included this summary of the argument with, internal references to the pages where each point is discussed in detail.

whom identified him as the shooter. lie consistently maintained his innocence and made no
out?of?court admissions.

Newly discovered scientific evidence casts substantial doubt on the justice of Mr. ones?
conviction because it demonstrates that the police altered the Starks Videotape by removing
exculpatory information, then provided testimony about the circumstances of the missing content
which is contradicted by currently?available forensic analysis. The videotape played to the jury
contained what appeared to be a 13.5 second interruption during which the Starks interview
cut away to a television program. Detective Smith testi?ed that the interruption was the result of
his accidentally hitting ?record? instead of ?play? on the VCR while playing the tape for trial
counsel. The forensic evidence disproves that explanation and demonstrates, instead, that the
interruption was a purposeful editing and that somewhere between 18 and 136 seconds of
content is actually missing from the tape. This evidence has never before been presented to the
?iurt because the forensic methodology upon which it is based did not exist until recently. 
infra, pp. 3645.

The startling new evidence concerning the Starks interview necessitates a reexamination
of the totality of the circumstances surrounding Mr. Jones? conviction, including: the
credibility 'of the lead investigators (i_n_f_ra. pp. 46?53), (ii) the adequacy of the Commonwealth?s
pre~trial disclosures (infra. pp. 54?58); Elias? conflicts ofinterest (infra. pp. 5844), (iv) I
tilias? failure to prepare for trial and present a reasonable defense (infra. pp. 74?91), and new
developments in the scientific understanding of eyewitness memory that cast doubt on the
reliability of the identi?cation evidence (infra. pp. 91-99).

First, the. evidence calls into question the credibility of Smith and LaGarde, the

investigators who created and maintained the altered Starks Videotape. These officers were

crucial witnesses for the Commonwealth. Since none ofthe eyewitnesses made an in-court
identi?cation of Mr. Jones, the only identi?cation evidence came through the testimony of these
two of?cers, who impeached the eyewitnesses with their alleged out~of~court identi?cations and
authenticated the Starks videotape. The out?of?court procedures described by Smith and LaGarde
were. in turn, the subject of signi?cant contrasts in testimony, with witnesses recounting
coercion, suggestiveness, and other hallmarks of erroneous identi?cation. The newly-discovered
evidence only heightens the risk that erroneous identi?cation occurred, because it suggests that
the of?cers responsible for the identi?cation procedures may have altered evidence to strengthen
their case.  ir?ga, 46-53.

Second, the newly discovered evidence calls into question the adequacy of the
Commonwealth?s pre?trial disclosures. In 2011,  Jones? post?conviction counsel obtained
from the Brockton Police Department an undated memorandum drafted. by DetectiveJaGarde
that includes a'summary of the interview memorialized on the Starks Videotape. That Summary
includes key details omitted from the videotape itself, including a statement by Starks that
contradicted the COmmortwealth?s theory of the case. Although?Mr. Jones has been unable to
obtain ?lias? ?le, it is readily apparent from his cross~examination of lJaGarde that Elias did not
have the crucialla?iarde memorandum and, therefore, could not know that the missing portion
of the Starks Videotape was exculpatory. See m, pp. 54?58.

Third, the newly discovered evidence necessitates a careful reexamination of trial
counsel?s con?icts of interest. Mid?way through the trial, Elias revealed for the ?rst time to the
Court and later to Mr. Jones that he had represented several of the of?cers involved in the
investigation. Elias said he was still representing LaGarde but stated that his representation of

Smith and another of?cer, Fotis Colocousis, had ended. Where the Commonwealth?s case

indisputably turned on the credibility of Smith and LaGarde, an effective cross-examination of
the officers was essential to the trial defense. Eli?as? cross?examination, however, was weak and
ineffectual. He repeatedly failed to exploit the numerous de?ciencies in the investigation, the
most glaring of which were the striking irregularities in the Starks Videotape. No Court has yet
had the opportunity to evaluate Elias? conflicts of interest in iight of the evidence of video
tampering. See  pp. 58?74.

Fourth, the newly discovered evidencewarrants a careful evaluation of the many ways in
which Elias failed to adequately prepare for trial and present a reasonable trial defense. Had Elias
done so, he could have discredited the testimony on the Starks Videotape (and other
identi?cation evidence presented by the Commonwealth) through cross?examination. However,
he failed to do so. Moreover, in much of what he did, from choosing to have Mr. Jones sit in the
prisoner?s dock to failing to interview witnesses identi?ed as having provided exculpatory
statements, Elias consistently failed to'act in Jones? best interest. Elias later admitted that during
the very same time period that he was representing Jones, he ?allowed [his] practice to get out
of control,? providing ?a disservice-not only to [his] clients but to [him]self and family, by [his]
lack of attention and carelessness.? A340. Nowhere is this disservice more evident than in his
careless and lackluster representation of Mr. Jones in this capital case. See infga, pp. 74?9}.

Finally, the newly discovered evidence implicates important new developments in the
scientific understanding of eyewitness memory and-identi?cation evidence. Since Mr. Jones?
conviction, the Supreme Judicial Court has recognized that unnecessarily suggestive
identification procedures can greatly increase the risk of wrongful cenviction, and a Study Group
commissioned by the Court has published a Report highlighting the practices that have been

shown through social scienceresearch to be problematic. According to identification expert

Samuel Sommers, the Starks Videotape and testimonial accounts by other eyewitnesses reveal
that the police handling of eyewitness interviews constituted textbook examples of these
suggestive and unreliable identi?cation practices. SQ pp. 91 -99.

Because the newly discovered evidence indicates that the tape was intentionally altered,
and that Smith?s testimony concealed the alteration, the Court should evaluate all of the
procedures employed by Smith and LaGarde to obtain out?of?court identi?cations. This is not
simply a case of police using outdated techniques that have since been shown to be unreliable; it
is a case where there is new evidence that the of?cers reSponsible for the out of court procedures
altered and concealed evidence to obtain a conviction.

IV. FACTS

A. Background of Police Investigation

Guillermo Rodrigues was shot in the parking lot ofD?Angelo?s Sandwich Shop, across
the street from Pete Bar in Brockton, at approximately 10:30 PM on
November 1 1, 1985. On the night of the shooting, the poliCe interviewed two white
eyewitnesses: Denise Perkins and Paul ones.5 The police conducted two additional interviews
01? both Perkins and Paul Jones over the next several days, and those interviews as well as
Perkins? and Paul Jones? observations on the night of the shooting were the subject of grand jury
and trial testimony, summarized below. Neither Perkins nor Paul Jones knew Darrell Jones.

The ?rst reference to Darrell Jones as a suspect in the case occurred in a police report

drafted by Sergeant Fotis Colocousis6 on November 12, 1985, the dayafter the shooting. A018.

 

This case involves several individuals with the surname ?Jones.? To avoid confusion, the defendant will be
referred to throughout this memorandum as ?Mr. Jones" or ?Darrell Jones.?

6 As discussed herein, Sergeant Colocousis, the ?rst Police Of?cer to make reference to Mr. Jones as a suspect, like
Detectives Smith and LaGarde, turned out to be a client of defense counsel, Kenneth Elias. 

Colocousis wrote that. at 4:30 PM on that date, he and another officer spoke to an informant,
Robert Allen. who ?stated that the party responsible is a party known to him as ?Diamond,?? a
black male approximately six feet tall. A018. Allen apparently did not know ?Diamond?s? real
name, because there is no reference to Allen providing that information. However, as Colocousis
was updating his report to include the information he learned from Allen, fellow Brockton police
officer James Silva coincidentally told Colocousis that he heard from a second confidential
informant not only that ?Diamond? was responsible for the shooting, but also that ?Diamond?s?
real name was Darrell Jones of i6 Kerwin Street in Boston. A019. Having so ?identified? Mr.
Jones as a suspect less than twenty hours after the shooting, Colocousis obtained a ?poor picture?
of Mr. Jones, which he appended to his updated report. 

Once they had Mr. Jones? name and picture, of?cers began showing photo graphic line~
ups to eyewitnesses. 0n the same day (Nov 12) that Colocousis got the poor?quality photograph
of Mr. Jones, LaGarde reportedly went to both Perkins? and Paul Jones? places of employment to
show them photographs of young black men; he included the photograph of Mr. Jones. 
030. Testimony regarding those identi?cation procedures is summarized below. Paul Jones told
LaGarde that day that the victim was ?much taller? than the shooter. GJ 005 (LaGarde).

Mr. Rodrigues died of his injuries at approximately 1:00 AM on November 14. An
autopsy took place at 5:00 PM that same day, which LaGarde attended and summarized in- a one?
page report. A037. According to LaGarde?s summary of the autopsy, the victim was just
one inch taller than Mr. Jones. 1d.

Although the police focused'on Mr. Jones as their suspect early on in the investigation, he
was not the only suspect. In fact, Smith wrote a report in which he noted that he and State Police

Detective Peter Downey interviewed the girlfriend of a second suspect, Steven Betts, 'on

November 15. A054. Smith wrote that, ?Steven Betts? name has been mentioned several times as
possibly being the one that did the shooting.? l_d. Smith?s interview of Betts? girlfriend seemed to
con?rm his potential involvement; according to Smith, ?[s]he told us that she had heard Steven
might have been involved in the shooting.? id.

On November 15 or 16. Smith met with another confidential informant in Randolph and
was told that an eighteen year old black female named Lisa Middleton witnessed the shooting
with someone named Terie Starks. A055. As Smith wrote in his report, the information provided
by the unnamed informant turned out to be wrong; Middleton was not at on the night of the
shooting. 151. Smith also learned (possibly from the same con?dential informant who supplied the
had information about Middleton) that a Walter ?Bobo? Watson had witnessed the shooting. 1d,
Smith reportedly tried to contact Watson the same day he learnedthis information, but was
unable to do so. 1d. Smith wrote in his undated report, however, that he learned from an
unidentified person that Watson was located"?and stated that Terry Starks . . . was with him at
Pete &7 Mary?s and upon exiting Terry Starks was alleged to have said something to the effect,
?Here comes Diamond, he?s got a gun.??7 Lei.

On November 17, shortly after learning of Watson,Smithand Detective Paul Washek
interviewed Watson and two other eyewitnesses, Lisa Pina and Edna Levine. Pina was
first of these witnesses to be interviewed. 8 A048. According to Washek?s report, ,Pina was at

on the night of the shooting and left with Watson, Levine, Starks, and Alfred Marrow. I_d.

 

'7 This statement is peculiar in that Smith himselfinterviewed Watson on November 17, as discussed below. It" Smith
wrote his report after he spoke to Watson on the 17th, he presumably would have said that ?Watson told me that
Terie Starks was with him,? rather than attributing the information about Watson to some unidenti?ed source.
However, no other poiice reports memorializing any interview of Watson prior to November 17 by the Brockton
police has been made available to undersigned counsel. 

8 Washek?s report does not explain how the police identi?ed Pina as someone who was at the scene.

10

The report states that ?[ails [Pina and the others] left the premises, they observed Guillermo
Rodrigues leaving the premises . . . with an unidenti?ed black male.? m. According to the report,
Pina told Washek and Smith that, once inside Watson?s car, Starks exclaimed, ?It?s Diamond and
he has a gun."9 1d.

After interviewing Pina, Smith and ashek went to atson?s house, where they
interviewed Watson and Levine together. A049. According to Washek?s report of the interview,
Levine and Watson saw Guillermo Rodrigues, known to them as POW, crossing the street with
an unidentified black male. Q. As they entered the D?Angelo?s parking lot, according to the 
report, Levine heard Starks say the exact same words that Pina reportedly heard Starks say: ?It?s
l")iamond and he has a gun.? id. Washek?s report conspicuously omits any reference to Watson
having heard Starks make this statement. 1d. By contrast, Smith?s report attributes this
information solely to Watson. A055.

Later that night, on November 17, Colocousis and Lieutenant John Luciano arrested Mr.
Jones and charged him with murder. In his arrest report, Luciano wrote that he spoke with a
bartender at at 6:45 PM on November 17, telling him to call if MiaJones showed up.
A046. The bartender called Luciano at 8:20 PM, at which time Luciano and Colocousis
responded and placed Mr. Jones under arrest. id, Both Colocousis and LaGarde interviewed Mr.
Jones after his arrest, and Mr. Jones denied any involvement in the shooting.

Ironically, just an hour before Luciano spoke to the bartender on November 17, he
interviewed an individual named Miko Brown who was with the victim on the night of the
shooting. A044. Brown?s statements were inconsistent with the accounts reportedly provided

earlier that same day by Pina, Levine, and Watson. According to Brown, Mr. Rodrigues left

 

9 later asked about this statement, Starks denied making it. See m3, pp.12, 19. .

ll

 with her (not a black male at gunpoint) and walked with her toward Centre. Street before
crossing the street to his car in the D?Angelo?s parking lot. id. As discussed below, Ms. Brown
submitted a recent affidavit affirming these details and stating that she was never contacted by
Elias. AFli?226?23l.

After Mr. Jones? arrest, the police continued to interview witnesses. and those witnesses 
like Miko Brown provided exculpatory information. On November 18, Luciano interviewed
ernell Dukes and Evelyn Anderson, who stated that they were sitting in a. booth with Mr. Jones
on the night of the shooting and that he never left their sight. A043. Both Dukes and Anderson
told Luciano that Mr. Jones was with them when police arrived around 10:30 PM. 1d. Later that
same day, November 18, Luciano interviewed Brigete Struthers, who reported that she purchased
a Sub sandwich for Mr. Jones on the night of the Shooting but indicated that she knew Mr. Jones
as ?Deke? not ?Diamond.? A045.

Eight days later. Smith and LaG?arde conducted the final reported interview of their
investigation: Terie Starks. The facts and circumstances of that interview, and the
videotape that was made to record it, are addressed at length below. One point requires attention
at the outset. however, because it casts substantial doubt on the alleged utterance, ?It?s Diamond
and he has a gun,? something that was ekpressly relied upon by the SJ in its decision on Mr. 
Jones?s direct appeal.  Jones, 407 Mass. at 168.

During the videotaped interview, Starks not only denied having made this statement, she
explained that she did not know Mr. Jones and only learned the name ?Diamond? after the
shooting. S_e_e_ A521 (transcript  Starks Videotape). Accordingly, the information attributed by
the police to Smith?s confidential informant, and to Pina, Watson, and Levine m? 1.26., that Starks

made a spontaneous utterance at the time of the shooting identifying ?Diamond? was wrong.

12

The Commonwealth even conceded that it was wrong in its closing argument; at the conclusion
of all the evidence, the Commonwealth argued af?rmatively that Starks ?didn?t know the
defendant?s first name [and] didn?t know his nickname,? and therefore could not have been the
one who allegedly uttered the name ?Diamond? in the car. 1116/22: 17?24. instead, the
Commonwealth argued that Levine made the statement despite the fact that none ofthe
i-virnesses attributed the statement to Levine when interviewed by the police and that Levine
herseZ/denied making the statement. 

B. The Eyewitness Trial Testimony

1. Denise Perkins (Denise Jones)

Ms. Perkins, who by the time of trial had married Paul Jones and taken his name, testified
that She and Paul Jones arrived at D?Angelo?s just past 10:00 PM. Perkins saw a
black female leave D?Angelo?s, enter then return to 'D?Angelo?s with a black male
wearing ?like a Navy coat. . ., a green coat? that ?came down to a little bit past his waist.?
1 After spending about two. minutes inside, the black female-and male left
D?Angelo?s; the female got into 'a car with someone else, and the male returned to at
1 21621.

A couple of minutes later, Perkins saw what appeared to be the same black male pushing
a ?tall? man, whom she guessed was Cuban. id. at 11:22w12:17; 15:3?6. Perkins could see the
Cuban man?s face, but onlyl?got a quick glimpse? of the black male, who was wearing a dark
green coat a little past the 'waist, dungarees and white Sneakers, and was substantially shorter
than the Cuban. id. at 13:7414z20.

A ?few Seconds" after they emerged from the shower black male took off running
and the Cuban fell to the ground.  at 13:1 i?l4:7L Jones and Perkins pursued the shooter by car.

id. at 1418?15. The shooter ran up Ward Street, cut across a parking lot, crossed Franklin Street,

13

and ran ?into the back of thecable building parking lot,? where he jumped a fence and Perkins

could no longer see him. 1d. at 1428?15; l5:l 1?20. Figure 1 below). As the black male

reached up with his hands to climb the fence, no gun was visible. lc_l. at 38228952.

 

[Figure Current Google Maps satellite view of scene,- with arrowsrnarking route?that Perkins
testi?ed the shooter took after fleeing the scene. Note that Ward Street is now called Petronelli
Way. A443 (Assessor?s Map 
Notably, although she and Paul JOneslchased after the shooter, neither she'nor Paul ones
remarked on anything distinctive about the shooter?s hair. In partiCUlar, neither described the
distinctive bushy reddish?blond ?tail? that was Mr. ones? at thattirne. gee 
(Jones Aff.) at 1129, A024 (Colocousis report of Struthers interview, noting that Mr. Jones had a
??tail? where the hair and the neck meet?), A018 (Colocouis report noting that. Mr. Jones had a
?close cropped afro with a piece hanging down the middle of the back of his head?).

Before they left for the police station, Perkins and Paul Jones were shown a black male
and asked by of?cers whether he was the shooter. E. at 20:22-21 Perkins said no. About

?ve or ten minutes after the shooting, Id. at 19:18?20, an officer asked Perkins and Jones to look

14

at the crowd gathered in front of and to indicate whether the black male they saw was in
the crowd. 1_d. at 19:9?1 1. Perkins said no. Tr. 3/l9z9?1 1. Darrell Jones was in the crowd at the
time. Tr. 

A couple of days later, l_.aGarde came to Perkins? workplace and showed her a
pl'iotographie line?up ofsix to ten black males. Tr. 3/22116?2324. She narrowed the line?up down
to four, but was unable to select any single photo. Ld. at 23:1 1?18. LaGarde told Perkins words to
the effect of, ?you?re doing pretty good, he?s in there.? 1d. at 37:14-16. The following day,
LaGarde showed Perkins a second photographic array, consisting of many of the same photos
from the first array and a few more. at 23:19?25. LaGarde again informed Perkins that the
shooter was in the array. 1d, at 37:17?19, and Perkins selected Darrell Jones? photograph.I0 1d. at
2412-4. When asked at trial whether the person she saw. shoot Rodrigues was in the courtroom,
Perkins responded, can?t be one hundred percent sure, so I?d have to say no.? 1d, at 2922223.

In an af?davit filed with this Motion, Ms. Perkins (now Jones) added new details
regarding the extent of police efforts to Secure  positive identification of Mr. Jones. 
221. Perkins stated-she felt pressured to identify him, and did not want to let down the police and
prosecutor. She clari?ed that, On the night of the shooting, the police showed her a
binder of mug shots and sketches at the station, and she could not pick out any one image as
depicting the shooter. When LaGarde showed her a photographic line-up a couple
of days later, she narrdwed it down to four but, ?could not be Sure.? AFF219. The police told
Perkins that the shOoter was in the group of four photographs, implying that they, ?already knew

who did it and they were just asking thI?] to confirm what they already knew.? 1d. When

 

As discussed below, LaGarde provided contrary testimony. According to LaGarde, Perkins picked out Mr. Jones?
photograph during their fifteen minute meeting at her place of employment and, two days later, picked out Mr.
.lones?picture again when presented with a different line up. See infra, pp. 29?31. 

15

LaGarde showed her yet another array just a day or two later, she ?felt like the police really
wanted [her] to pick out a photograph, but [she] told them that [she] did not get a good look and
could not be sure.? id. The police pressed Perkins to select the photograph that looked ?most like
the shooter." Ind. Although she picked out Mr. Jones phOtograph, she ?always said that [she] was
not sure.? id. See also Trad/7521923 (testimony of LaGarde that, even after Perkins picked out a
picture from the second array, ?there was an element of doubt?).

Perkins also stated in her affidavit that, prior to testifying before the grand jury and at
trial, she met with police detectives and the Assistant District Attorney AFFZZO. They
went (NOT the police reports and ?seemed disappointed that [her] memory of things did not
always match" the reports. lid. Aspects of her subsequent testimony strongly suggest that the
police continued to pressure Perkins to conform her testimony to the reports and subsequent
discussions with the police and DA about the case. For example, her trial testimony unlike her
testimony at the grand jury minimized the?height difference between the shooter and
Rodrigues? and referred to the victim by a different nationality.12 Similarly, when she testified
before the grand ury, Perkins repeatedly referred to the shooter as ?Darrell.? even though she
did not know Mr. Jones. Taken together, these differences reveal a troubling

pattern of testimonial shifts to conform to information supplied by the police or prosecution.

 

At the grand jury, just weeks after the shooting, Perkins stated that the victim was at least a foot taller'than the
shooter by the time oftrial, her description minimized the height difference. In fact, Perkins testified on
eross~examinaiion that the shooter. was six feet tall. .393; A545 (Chart summarizing testimony
regarding height ofshooter relative to height of victim).

12 Her account shifted from the evening ofthe shooting (?Portuguese?), A039, to the grand jury (?Portuguese?
Cuban?), (EJ039, 044 to trial (?Cuban?). 'fr.3/l 1:22?12:17.

?3 When asked to describe the victim, Perkins stated that ?Darrell was pushing him.? (31039. When the Assistant
District Attorney responded ?Darreii, you mean the black guy?? Perkins stated ?Yeah, whatever.? Perkins?
repeated use of Mr. Jones? name during her testimony prompted one of the jurors to ask, ?You refer repeatedly to
Darrell. Were you acquainted with Darrell or did you know (33048. When she answered, the juror
followed up, ?so this is just a name that you?ve acquired?? Perkins responded af?rmatively. GJO48PO49.

16

1 Mass.

Paul Jones? testimony regarding events prior to the shooting was virtually identical to that
of l?erkins. Jones saw a black female leave D?Angelo?s and return with a black male. Ld. at
44: 12~23; 45:144628. The male returned to and the female left in a car driven by someone
else. Id. at 48: 14~21. Asked whether he saw the same black male later that evening, he stated,
?I?m not one hundred percent sure, no.? 1d. at 4917?1 1.

Paul Jones later saw a black man and a Cuban man in the D?Angelo?s parking lot. 1d. at
50:28. The black man wore a long coat, dark pants, and bright white sneakers. at 50:10?12.
5222?4. The Cuban man ?was taller? than the black man and wore a sports jacket. 1d. '4 The -
shorter black man pushed up against the Cuban, reached in his pocket, pulled out a gun, and shot
the Cuban in the stomach. :22. Paul Jones was not able to see the shooter?s face
and could not tell whether the shooter was the same man he saw earlier leave D?Angelo?s. 1d. at
El :23?5227. lie pursued the shooter up a one way street across from D?Angelo?s (Ward Street)
and. into the parking lot behind the auto body shep, where he saw the shooter jump over a cement
wall at the Cablevision building. at 52:11?18. After losing sight  the shooter, Paul Jones
returned to D?Angelo?s. E. at 52:22?23. SE Figure 1 above, and A443 (Assessor?s Map).

At D?Angelo?s, Paul Jones told the police that the shooter Was wearing a long coat. 1d. at
5424-8. The police brought over a black male wearing ?a long coat similar to what the [shooter]
was wearing.? but Paul Jones (like Perkins) told police that the man was not the shooter. 1d, at
54113225.?5 The police then asked him to look at the crowd on the sidewalk outside of and

tell them if they saw the shooter. 1d. at 5527?5618. Paul Jones ?pulled right up on the sidewalk

 

At the grand-jury, Jones estimated that the shooter was about six inches shorter than the victim. GJ028.

'5 None ot?the police reports make any reference to the name or other identifying information ofthis individual.

17

and . . . got out of [his] car." 151. From ?pretty much right in the crowd,? Jones did not see anyone
who looked like the shooter. id. Darrell Jones was in the crowd when this occurred. Tr. 2/1 19: 9?
120: 12. 

The day after the shooting, LaGarde came to Paul Jones? workplace and showed him a
photo line?up of approximately twelve black males. He eliminated certain, of the
photos but said he ?wasn?t really sure,? and that, ?it wasn?t this one and it wasn?t this one,
possibly it could be this one." at 58:26. Approximately two days later. again
presented him with a photo line?up. Q. at 58:6w579z7. This time, Paul Jones picked out a picture.
At trial, Jones testi?ed that he ?wasn?t one hundred percent: sure,? but thought the picture
depicted the black man he saw at ?Angelo at 60:22?61 Jones was not sure whether the
black man from D?Angelo?s was the same man who shot Rodrigues. m. at 61 :11~22. He was not
asked at trial whether the shooter Was in the courtroom, and he did not make any in?court
identification. 1g,

3. - Terie Starks

Starks left with Watsdn, Levine, Pina, and Marrow. The group
crossed iMontello'Street to D?Angelo?s and got into Watson?s car. id, at 40:25?41:10. Starks sat
in the front passenger seat next to Levine, who was sitting between Starks and Watson. at
4223?9. Seated in the car with the windows up, Starks saw two people crossing Montello Street
towards the D?Angelo?s parking lot: a ?tall'Cuban guy? wearinga long trench coat and a ?shorter
fellow? beside him. id, at 42: 12-22. The shorter man was holding the Cuban by the arm of his

coat with a gun pointed to the ground. 1d. at 43:13?23. Starks testi?ed that the black man was ?a

18

little bit taller than I was with lieelsron?m id. at 42:16-22. Starks exclaimed, ?that man is holding
a gun,? but did not say ?that?s Diamond.?17 at 4527?16; 50:8-12. Starks did not observe the
shorter man?s clothing. at 44:25?4526. 1d. After the shooting, the shorter man ran down Ward
Street.I8  at 46:13?19.

Starks testi?ed that on December 2, 1985,19 Smith showed her seven or eight
photographs of black males and made a video recording of the interview. lg. at 47157?5012. Starks
testi?ed that she picked out a photo that she thought depicted the shooter, but she was not asked
to identify which photo she selected. 131. When asked whether the man she saw shoot Rodrigues
was in the courtroom, Starks said, can?t be positive,? and did not make an inwcourt
identification. 1d.

Defense counsel conducted a very limited cross examination, reserving his right to
continue the examination ifthejudge admitted the video. 1d. at 50:8n5122l. At 9:00 AM on the
last day of trial, after the jury had seen the video, Elias re?called Starks. When the
Court Officer announced that she had not arrived, ii, the judge remarked, ?Well, I don?t think

it?s any secret, ladies and gentlemen, that the witness is in custody, and we depend on others to

 

?6 According to her booking sheet, Starks was 5?3" tall. A466. The victim, by contrast, was 6? v? ten inches taller.
A height difference of this magnitude (12a, eight to nine inches) is consistent with thegrandjury testimony of .
Denise Perkins (describing height difference of 12 inches or more) and Paul Jones (describing six inch difference).

'7 While Starks testified that Levine said ?that?s Diamond? and ?he used to stay at my house,? Levine clari?ed in her
testimony, in response to questions posed by thejudge, that this discussion did not occur in the car, but later at
Levine?s apartment. Tr.3/1 17:25ul 18: 16. The testimony does not specify when the conversation occurred (E) but
tends to eliminate the possibility that it occurred even later that same night because, after the shooting, Levine,
Starks, Watson, and Pina went to Watson?s house, not Levine?s apartment. See also A537 (transcript
of Starks Videotape).

?8 Starks could not remember the name ofthe street at trial, but in her grandjury testimony, she testified that the
shooter ran "to Ward Street." 3.1063. This testimony is consistent with that ofPaul Jones and Denise Perkins.

1? As discussed at p. 32, the videotaped interview of Starks actually occurred on the morning ofTuesday, November
26, 1085, after Starks had been arrested in Methuen on defauit warrants issued out of Brockton District Court.

19

bring her here. Is she in rantingharn?? 1d, at 4:20-24. The ADA said yes. id. The Court told the
jury that the defendant had a right to call Starks, and that court would be in recess until she
arrived. at 5: 37?9. After a very short recess, at 9:35 ant, Elias announced without explanation
that. the defendant rested. at Sle?l3.

Elias did not consult with Mr. Jones before unexpectedly resting. (Jones
Aff.) at 1132. When the two spoke of this issue the previous afternoon, they agreed that Elias
would r?e?call Starks, a tactic thatMr. Jones viewed as critical to his case. AFF263 at ?il3 1;
Tr.5/l 1922?1203. According to Mr. Jones, Elias never explained the reason for his sudden
change of plan. at Mr. Jones sat in the prisoner dock in disbelief, not
understanding why his attorney decided not to call Starks. l_d.20

in July 2012. Starks spoke with an investigator and counsel for Mr. Jones and provided
additional information regarding the circumstances of the videotaped interview. 
(Affidavit of John Barter). Starks stated that the police arrested her in Methuen on or about
November 25 and drove her to Brockton, where they held her overnight before interviewing her.
AF 132082.09. On the drive to Brockton, the police told Starks that the numerous default warrants
on her record could cause her serious problems, and that that things would go better for her if she
provided information about the sheeting. AEF209. The police asked Starks if she knew who shot
Rodrigues, and she said no. AFFZ 1 0. The police then. told Starks that they had already arrested
the shooter, and that this person Whose real name was Darrell ones went by the nickname

?Diamond.? 1g. They also told her that Mr. Jones was already in custody and that a bail officer

3? Mr. Jones was nor the only person in the courtroom who was surprised by Elias? unexplained change of course.
The next day. the Brockton Enterprise reported that ?Elias was expected to recall Starks to the witness stand as a
defense witness to say she was pressured into the identi?cation,? but that be ?surprised onlookers? by resting
without rescalling Starks. A446 (Enterprise, 10/1/86, ?Jury in Brockton murder case in second day of
deliberations?).

2O

would not come to see her until the next morning, after she ?nished talking to the detectives.
212.

At the time of her arrest, Starks was a user ot?crack cocaine and alcohol and wanted to
get out of police custody as quickly as possible. AFFZI 1?212. When Mr. Jones? investigator and
counsel played the videotaped interview for Starks in July 2012 (which she had never seen
before), she remarked that she appeared under the in?uence or coming down from a period of
drug and alcohol use. 1d, Starks pointed out that she appeared jittery andrwas making nervous
gestures, including scratching, which is how she would behave when she was craving drugs and
alcohol. Ld.

Starks expressed surprise that a portion of the interview was missing from the videotape.
While she could not recall exactly what was missing in part because she also Spoke to the
police both before and after the tape was running, so other things she said were also excluded 
she did recall saying several things that were not on the videotape. AFF213. Specifically,_Starks
remembered telling the police that she did not see Rodrigues come out of AFF213-214.
Instead, she saw him and a? much shorter blaCk man come from behind around the body
shop on Monte/lo Street, before crossing the street and walking to the parking lot near 7
I'D?Angelo?s. 

4. Lisa Pina

A couple of minutes after getting in the back seat of Watson?s car, Pina saw two males
crossing Montello Street. She did not see where they came from and did not reCall
seeing either in the bar. id. One was ?dark?skinned and wearing dark clothing,? ofmedium
height. 1d. at 77:22?7823. The other was taller, older, with light-skin and wearing light clothing,

?like a jacket or something.? 1d. at 7814-8. The men were walking side?by?side, and then the

older" man fell'to the ground. 1d. at 7819-23. Pina heard no noise (the windows were up), and

21

because she was focused on the victim, she did not see the shorter, black male ?ee. Id. at 78:16?
79:5.

[Detectives came to speak to l?ina at least twice. 1?83: 18. On the second
occasion, Smith showed Pina approximately six pictures of black males. At trial, the
prosecution asked Pina, ?Did you pick one of those photographs out?? She responded as
follows:

hat? I didn?t really want to look at the photos from the beginning but he insisted

on me looking at them, and he went out to the car and he got the photos and he

came back, and I was crying at the time and he insisted on me looking at the

photos. So when he laid them out I knew three of the people anyways and there

was three left, and I still told him I do not want to look at the photos, and he told

me to pick. a picture, pick a picture, and I was there crying so I picked a picture,

and it happened to be Diamond?s picture.

Id. Asked whether the picture was of the man she saw on November 11, I985, Levine said,
?Iinjo, I wouldn?t say that, no.? Id.

In a post?conviction af?davitl'?led with this motion, Ms. Pina stated that, after the
shooting, Watson drove the car to the back door of byFranklin Street, where she went
inside and asked the bartender to call for an ambulance. AFF223.21 Ms. Pina also stated that,
during the second interview, she emphasized that she did not see any of the people involved and
could only repeat what others had said. Although she made clear to Smith that she
did not know who the shooter was, he kept telling her to ?pick a picture Lisa . . . pick a picture . .

. you know who did it, you know who did it.? AFF224. Under presSure, Pina ?randomly made an

indication toward one of the pictures, and the police seemed to be satis?ed.? Id. According to

 

3' This account, which is corroborated by Starks, puts Watson?s car in the very same location where the
Commonwealth argued Mr. Jones must have re?entered after discarding the gun at Coloniai Spa. A543
(transcript ofStarks Videotape); However, there is no evidence that anyone saw Mr. Jones enter 
through the back entrance alter the shooting,

Pina, Detective Smith told. her she had picked out the right one; Pina countered that if she did, it
was purely by luck. 
5. Edna Levine

Levine went to around 9:30 PM. She saw Messrs. Jones and
Rodrigues, but did not see them together and did not recall how Mr. Jones was dressed.

Tr.3/ 104: 16-106221. Levine left about an hour after arriving, with Watson, Pina, Starks and
Marrow. 1d. at 106222?107z8. She sat in the front of Watson?s car, between Watson and Starks.


Levine did not see how or when Rodrigues left the bar, nor did she see Rodrigues and the
shooter cross Montello Street. 1d. at 108:19?109:6, 11025?6. Instead. she ?froze? and ?looked
straight ahead.? at 109:9?25. Levine saw Rodrigues fall to the ground while a second
individual ran up Ward Street. 151. at 110:12good view ofthe ?eeing
man because it was raining and dark, but she thought he might have been wearing dungarees. 1d.
at 1 11:8?13.

Approximately two days later, Smith Spoke to Levine at her apartment and showed her
fOuror five pictures of black males. E. at 1 12:12-1 14:20. Levine-knew and recognized ?a few of
the people in there.?  Smith asked her if she knew Darrell Jones. 191. She said she did. and
pointed out his picture in the array. 151. Smith did not ask Levine to describe the shootershe coluld identify the. person who shot Rodrigues. 1d. In picking Jones? picture, she
did not intend to indicate that hen/as the shooter. 1d. at 115:9?13. Levine emphasized at trial that

she did not see and could not identify the shooter. 1g.

23

6. Walter Watson
Walter ?Bo Bo? Watson went to with Levine,22 and left with Levine, Pina, Marrow,
and Starks, whom he offered to drive home. As he was backing out of his
parking space at D?Angelo?s, he heard others in the car say two men were arguing, and one or
more people mention the name ?Darrell tones.? 6.23 After someone in the car
said, ?he done shot somebody,? Watson looked out the window and was about to get out to see
what had happened when someone in the car said, ?you better take off, they might shoot you,
too." At most, Watson observed the two men in the parking lot in his peripheral vision (?by a
slanting eye?); he did not hear shots and did not see the victim fall. I_d. at 97: 13?98:9. Watson
saw someone running up Ward Street after the shooting but did not observe the person?s clothing
or appearance. 1d. at 9812049928. The police showed Watson a photographic array, but he was
unable to identify anyone. at i99224?100:6.
C. Testimony of Other Civilians Called By the Commonwealth
l. Brigitte Struthers
Brigitte Struthers arrived at at approximately 6:55)  Tr.3/ 120:4-17. She went
with her friend Raymond ?Skipper? Baker. Id. Around 7:40 PM, Struthers saw Mr. Jones exit a
bus and enter at 120:18~121:14. He was wearingjeans, sneakers, and a short black
jacket. 1d. at 122:1 1?23. At the grand jury, Struthers specified that the jeans were gray. GJ067. l.

Struthers also saw Rodrigues. 1d, at 123112-22. At some point during the evening, Struthers left

 

it" Watson testified that he and Levine arrived at around lleO PM. Tr.3/93: 'l2a19. This testimony is obviously
incorrect. Not only is it an hour and a halfafter Levine testi?ed they arrived but half an hour after the shooting.

'23 Like Watson?s testimony regarding the time ofhis arrival, his account ofwhat was said about the shooter con?icts
with all other witnesses on this?point. With the exception of Watson, none ofthe others in the car testi?ed that
anyone said the name ?Darrell Jones," or even knew the name. To the contrary, Pina explicitly testi?ed that no one
ever said the name ?Darrell Jones.? Tr.3/1 15:14~l 16:7

 by herself to purchase a sub at D?Angelo?s. 1d. at 124: 4-25. After piacing her order, she
returned to and offered to buy Mr. Jones a sub. id. at 125:12?126: 12. She returned to
D?Angelo?s with Mr. Jones. Ld, After receiving their orders, Struthers left in a car with Baker. id.
at 127: 16428: 12. A couple of days later, Struthers spoke to Luciano. 1d. at 128115429218. She
told Luciano that she was with Mr. Jones at D?Angelo?s. 1g,

Struthers testified that Mr. Jones was wearing a. hat when he got off the bus earlier that
evening. id. at 131 :9?25. It was a ?regular hat with a little brim,? and Mr. Jones wore it
backwards. 1d, Struthers said Mr. Jones was wearing the hat when he went with her to
Di?Angelo?s, and she never saw him remove it at any point that night. I_d.

2. Bob Kanicholas

Bob Kanicholas, owner of Colonial Spa, a bar located approkirnately 300 yards from
testi?ed that he was working the night of November ll, 1985 and saw a black male in the
bar.24 7~45:17. It was unusual to see a black male because his clientele were
predominantly white. 1d. at 451254629. Kanicholas made no observation of the black male?s
appearance; he just ?glanced-and noticed he was there.? 1d. at 46:10?24.

'l?he'followingr morning, Kanicholas was cleaning out the trash bin in the men?s room and
noticed it felt heavy. Ld. at 46:25?47:20. He emptied the contents onto the floor and Saw a gun,
\Nl?llCh he put into a plastic bag. l_d. The following day, Kanicholas read in the paper about the

shooting and called the police to report the gun. Id. at 49:24u50:l3. At trial Mr. Kanicholas was

 

24 Kanicholas did not specify the time of night that hesaw the black male. Rather, the prosecutor asked him the
leading question, ?[d]irecting your attention to approximately ten?thirty and Kanicholas
responded, noticed there was a biack guy in the bar? without affirming the time. When later asked when he first
observed the black man, Kanicholas responded that it was when he was watching Monday Night Football (191. at
4612? 7), which spanned a period of several hours that night.

never asked whether Mr. Jones was the man he saw, and there is no evidence of any prior
identi?cation.

1). Testimony of Brockton Police Officers

1. Fotis Colocousis

Sergeant Potis (.?olocousis was the ?rst police officer on the scene at D?Angelo?s, arriving
at approximately 10:30 7921346. Upon arrival, he saw ?remen and
ambulance personnel attending to the victim. 1d. at 7622307214. Colocousis learned that the
victim was Rodrigues. a.k.a. POW, whom he knew to be a cocaine dealer. lg. at 77: 17~78:2.

Colocousis Spoke brie?y with Denise Perkins and Paul Jones. 93:19?95:21.
According to Colocousis? report, they described the shooter as a black male in his early twenties
wearing a long black coat. 131017. The report contains no reference to the shooter?s height or the
color of his pants, but at trial Colocousis testi?ed on cross?examination that Perkins and Jones
told him the shooter was ?in the area of six feet tall? 95:6?19) and that he had on
dark pants (1d. at '25

Colocousis crossed the street and. went into at As he entered.
he saw a black male matching Perkins? and Jones? description entering through the back door
i. a. the door that. according to the prosecution, the shooter used to re?enter the bar after ditching
the gun at Colonial Spa). 1d. When the man saw Colocousis. he ran back outside. 1d. Coloconsis
caught him and brought him to Perkins and Jones, who said he was not the shooter. 1d.

Colocousis did not make note Of the man?s name before releasing him. E. at 99: 1 910021 1.

 

?75 Colocousis? trial testimony that Perkins and Jones told him the shooter was approximately six feet tall is
inconsistent with their respective grand jury testimony.  sggrai p. 16. n.1 1 (Perkins): p. 17. n.14 (Jones).

26

Colocousis returned to where ?there were several people coming out the sidewalk in front of the bar.? Tr.2/ 80: 1 5?81 He asked whether anyone had seen or
heard anything. 1d. then directed Shanks to carry on an investigation at the scene, and
he drove to Brockton Hospital to check on the victim and take his clothing as evidence. 1d. at
81 24-7.

On cross?examination, Coloeousis testi?ed that he learned later that night that a black
female went to D?Angelo?s with the individual believed to be the shooter. Tr.2/ 10918?25. About
a week later, he learned the identity of the black female Brigete Struthers and went to
interview her. 1d. By that time, Mr. Jones had already been arrested and questioned by police,
including by Colocousis. Id. at 112:2?5. Coloucousis asked Struthers if she could pick out a
picture 01? Mr. Jones, and she indicated that his picture was in the neWspaper. 1d. at 1 10:17?21.

He did not ask Struthers what Mr. Jones was Wearing on the night of the shooting. I_d. at 1 11:3?4.
2. Richard Shanks

Of?cer Richard Shanks arrived on the scene after Colocousis. 16:10. Shanks
took statements from Perkins and Jones and, radioed a description to cruisers: black male,
approximately 21 to 22 years old, thin, wearing a long, black coat below the waist. 1d, at 116223?
1 17:ll . Shanks? description did not include the height ofthe shooter. 1d. Shanks was present
with Perkins and Jones when Colocousis brought the black male from for identification. E.
at 117112?11827.? Perkins and Jones said the man was not the shooter, that his coat was too long;
the shooter?s coat Went to just below the waist. 1d.

Shanks asked Perkins and Jones to go to the station to give statements, then he crossed
the street to where people were leaving the bar. After crossing the street,
Shanks saw Mr. Jones exit through the front door with his cousin Jerome Porter and an

unidenti?ed female. id. at 121 :2?24. Shanks was south of at the time, talking to people

27

gathered near the fence by the used car garage (referred to by other witnesses as the ?auto body
shop?). l_d. at 120:13-18. According to Shanks, Mr. Jones walked south towards the garage,
approached Shanks and asked him what happened. 1d. at 1l9214?25; 13516436: 19. Shanks told
him that someone had been shot. 1d.

As Shanks was talking to Mr. Jones. Perkins and Paul Jones were driving by on their way
to the police station, and Shanks jumped into the street to ?ag them down. 
They pulled up to the corner of Franklin and Montello Streets and stopped. 1d. at 13622?19.
Shanks asked them to look at the crowd to see if the shooter was there. Ld. at 119:10-120:12;
136:15?19. Mr. Jones was in the crowd, along with about six to ten other people. id. at 136122?
24: 1 33:20?25. 'l?hey complied and told Shanks they did not  the shooter in the crowd. 1d.
According to Shanks. Mr. Jones Was talking to ColOcousis in the crowd when this-occurred. 
at 136222-24.

Shanks? original report made no reference to speaking to Mr. Jones after the incident.
Tr.2/1 22: 1 8~123 The only place where this information appears is in a supplemental report
drafted by Shanks approximately two weeks before trial; it is there that Shanks recounts for the
first time his alleged ekehange with Mr. Jones.  at 123: 0?12426. According to that report.
ColOcousis'was with Shanks When Mr. Jones approached and, additionally, Coloeousis (not
Shanks) teld Mr. Jones what happened.26 Colocousis? reports and testimony omit these details.

3. John Luciano
Detective John Luciano spoke to several witnesses during the course of the inVestigation.

'l?ri3/1 3538-1 0. in addition. he went to after the arrest warrant for Mr. Jones had issued and

3? The only copy ofthis report that the defendant has is a redacted copy provided by the District Attorney in
response to a records request. Although much information has been hidden, it is clear that Shanks reported
Colocousis? involvement in the discussion with Mr. Jones. A208.

28

asked the bartenders to call if Mr. Jones appeared. 1d. 1351343623. On November l7, Luciano
and Colocousis responded to a call from and arrested Mr. Jones. id. at 13614?137212.

One ol?the witnesses whom Luciano interviewed was Mike Brown, a friend of the victim.
A044. According to Luciano?s report of the interview, Brown stated that she and Rodrigues left
together and that after she declined his offer to give her a ride home he went to his car
alone while she continued south towards Centre Street. -

4. LaGarde

Detective IJaGarde testi?ed that the Rodrigues investigation was originally assigned to
him.27 Upon being assigned, LaGarde spoke to several witnessesr including
Perkins and Jones. id. at 54:14?25. According to LaGarde. on November 12, he went to Perkins"
place of employment and spoke with her for approximately fifteen minutes. 1d. at 54:25?55:13.
During this enCounter, LaGarde showed Perkins an array of photographs depicting black males -
in their early twenties ?of normal build or thin.? m. at 55114?5628. He laid out the pictures in
front other and asked her to go through them. id. According to LaGarde, ?within a couple of
minutes? Perkins picked out a photograph 'of Mr. Jones and identi?ed him as the shooter? but
said ishe ?coUld not at that time be one hundred percent sore.? id. at 56: 12?5723; 59:10wl 3. 
also 7325?75223.

LaGarde spoke to Perkins again on November 14, this time at the police station. Tr.4/
57:12?25. l-le assisted her in making a composite ?of the party she had picked out? and also

showed her a second array consisting of between ten and fifteen photographs ofblack males in

 

27 Del. Smith testified that the investigation was later reassigned to him. 

their early twenties ot? regular or slight build.28 191. at 5822?25. liaGarde testi?ed that Perkins
picked out Mr. Jones? photograph from this array within one minute. l_d. at 5922?9.

LaGarde interviewed Paul Jones on the same days he spoke to Perkins, November 12 and
14. The ?rst of those interviews took place at ones? place of employment, where
Jones told LaGarde that the victim was ?much taller? than the shooter. GJOOS (LaGarde grand
jury testimony). LaGarde testified that he showed Jones an array containing between ten and
lilteen photographs ol?black males in their early twenties, oi" slight or medium build. lg, l'le
testilied that Jones examined the array and narrowed. it down to three photographs. l_d. The
second interview took place at the police station, where Perkins was present and sitting at a desk
Six to eight feet away. I_d. LaGarde showed Paul Jones another array, and Paul Jones once again
narrowed it down to three photographs but could not narrow it further.  at 63 :7~23. LaGarde
testitied that Mr. Jones? photograph was among the three photographs that Paul Jones picked out
on November 12 and November 14. in.

On cross?examination, iLaGarde insisted that Perkins selected-Mr. Jones? picture on
November 12, Contradicting Perkins? testimony that she merely. naddwed down the array to a
few photographs. He also insisted that he showed the same array to Perkins and
Jones on November 14 that he showed to them on November 12, in contrast to Perkins?
that the ?rst array contained fewer picture's than the second, police station. array. M. at
81 :16?23. LaGarde testified that he no longer had the array he says he ishowed to Perkins and

ones, and that'hc removed Mr. ones? photograph from the array at some point after their

 

28 It is not clear why LaGarde obtained a composite drawing after Perkins had already allegedly picked out a
photograph of Mr. Jonesz composite would presumably have been the first step in a process to obtain speci?c
photographs from the police department?s files to include in the array.  pg, A447 (Brockton Enterprise,

 1 2/86. ?New Broekton lineups an aid to crime victims?). The fact that the police felt the need to create a
composite after Perkins allegedly selected Mr. Jones" photograph casts doubt on LaGarde's testimony that Perkins
actually picked out Mr. Jones? picture during the first interview.

30

interviews so that Detective Smith could use it in a ci?j?erem array shown to di?erem witnesses.
1g. 51186124?8725.

Because LaGarde?s array was missing Mr. Jones? picture, it was marked for identi?cation
only, id, at 89:5?9, and neither party sought to admit it into evidence while LaGarde was on the
stand. Id. at 89:8?90:24. The following day, the issue of LaGarde?s array came up on cross?
examination of Smith. Elias showed LaGarde?s array to Smith and asked whether
he had ever seen it: Smith said he had not. id. Alter Smith testi?ed that the array he obtained
from LaGarde was missing the picture of Mr. Jones and that he obtained a picture of Mr. Jones
from LaGarde, Elias sought to introduce LaGarde?s incomplete array into evidence. id. at 56:13?
57:1. The Commonwealth objected on the basis of incompleteness, and during argument, the
Court asked for a recess to have LaGarde recalled. Rather than take the recess, Elias withdrew
his request. and LaG-arde?s array was never admitted. As a consequence. the jury never saw the
pictures that Perkins and Jones allegedly selected. nor did they see incomplete array.

5. Man Smith

Detective Smith took over as lead detective approximately three days after the shooting.
Smith knew Rodrigues because he had arrested him previously for possession of
cocaine. id. at 6:946.

Smith testi?ed that he interviewed Lisa Pina on November 17, 1985, showing her an
array containing six photographs of black males in their early to mid?twenties. _lc_1. at 7: 1 8.

According to Smith, Pina did not want to lock at the photographs, but Smith told her he was
going to ?leave them here until you look at [them], that?sthe least you can Id. at 9:19?
10:4. Pina picked one up and said ?it?s not him,? picked another up'and said, ?it?s not him,? and
then picked out a picture of Mr. Jones and slid it to Smith. 1d. at 10i5?l2. According to Smith,

when he asked. ?is this the man that did the shooting,? Pina replied, picked him out, didn?t 

31

id. at 1 124?8. The trial judge gave a limiting instruction that the testimony was admitted for
impeachment only. 1d. at 11:16v14:20.

Smith also interviewed Edna Levine on November 17. 1d. at 15:18?25. According to
Smith, Levine said that, on the night of November 1 1, she saw two men come across the street
and stop at the back of Watson?s cargun, and the other fell down. 1d,
The shooter, who was "the shorter of the two,? turned and ran up Ward Street. Id. Smith showed
Levine the same six~man array he showed Fina, asking if she recognized the person who ran
away. 151. at 16:8?15. According to Smith, Levine picked out Mr. Jones? photograph. Id. at 16:20
21; 20:1?8; 23:4?1 1. The same limiting instruction was given. id. at 20: 10?21.

Finally, and most signi?cantly, Smith testi?ed that he interviewed Terie Starks. id. at
24:16?23. During this interview. on November 26, 1985, he. showed Starks ten to twelve
photographs depicting young black males late?teens to mid~twenties). id. at 25:6315. He
asked her to see if she could identify the man who shot Rodrigues from the photographs. 1d. at
25: 16-26: 13. According to Smith, Starks picked out a photograph marked id. at 29:25?
3012, and Smith told the jury that Exhibit 20F was the photograph she selected. 29 m. at 3023?10.
Over objection,30 the trial judge failed to give a limiting instruction as to this testimony,
reasoning that Smith?s testimony that Starks selected Mr. Jones? photograph ?can be probative

because she identi?ed him.? 1d. at 28:13?14.

 

7?9 As discussed in the Discovery Motion, the DA has declined to provide access to the trial exhibits from his case.
30 Defense counsel objected to Smith?s testimony ?inasmuch as when Terie Starks was on the stand no one
asked her at the time to look at the pictures and pick out the one she identified.? Accordingly,
counsel reasoned, ?the best the of?cer can be doing now is corroborating something that hasn?t been done.? In
response to the Court?s observation that ?this one can be probative because she said she identified him," defense
counsel argued that the Commonwealth should have offered the testimony thr0ugh Starks. at 28:15?24. The trial
judge initially seemed to agree: ?They should have,?you?re right. Why should he be able to say that?s the one she
picked out?.? It could have been another one she picked out. ldon?t know which one.? But the judge ultimately
allowed the testimony in as probative evidence on the issue of identi?cation. 1g. at 29:19-23.

Smith recorded his interview rof Starks, and the videotape was the sub} eet of voir dire and
trial testimony. According to Smith, he watched the tape afterward and confirmed that it was a
true representation ofthe interview. lg. at 32: 1046. However, when he later played it for defense
counsel at the Brockton Police Academy, Smith claimed, he ?inadvertently pressed [the] record
button rather than the play button at one point along about the middle ofthe interview,? thereby
recording lover a fifteen to twenty second segment of the taped, interview with a network show,
Sergeant Bilko. id, at 35328617. Thejury watched the video. id, at 3921849.

On cross examination, Smith testified that Starks was arrested in Billerica or Methuen on
a Brockton District Court warrant, brought to the Brockton Police Department, and held
overnight prior to her tape recorded interview. M. at 48:7?21. He acknowledged that the
photographic array shown to Starks was different from the arrays shown to other witnesses, and
that she alone saw that particular array. m. at 6228-13. Significantly, of the photographs shown to
Starks, at least three depicted people she knew: Vincent Wadlington (her neighbor), Roosevelt
Lewis (neighbor), and Nathaniel Jones (Mr. Jones? brother). S_e_e AFF263 (Jones Aff.) at 

E. Testimony of Defense Witnesses 

1. Andrew Augustine

Andrew Augustine was in on the night of the shooting. He saw Mr. Jones, whom
he knew as ?Diamond,? with Vinelle Dukes. some point, Mr. Jones left
returning with a sub. 1d. at 77:25?78:7. Mr. Jones ate his sub in a corner booth with Dukes
and another girl. Id. at 692150024, 80: 12?23. He was still in the booth when the police came into
the bar to report that a shooting had just occurred. id. at 70:7?19.

2. Vinelle Dukes
Vinelle Dukes went to on November 1 with her friend Evelyn Anderson.

8~88z1 1. When she arrived, at around 9:00 PM, she saw Mr. Jones, who later joined

Dukes and Anderson at a table. 1g. At some point, Mr. Jones left and returned with a sub. lid. at
88:15-18. He sat down again with Dukes and Anderson and ate the sub. id. at 88zl9?20.
Afterwards, as she was preparing to leave with Anderson and Mr. Jones, Dukes learned about the
shooting outside the bar. at 88:24?89:14. The police stopped Dukes, Anderson, Mr. Jones, and
Jerome Powers outside of and asked whether they had seen a man in a long, black trench
coat, because he had shot someone. 1g. Others were outside talking to the police as well,
including a white male and female standing close by. 1d. at 89:25-90:23. According to Dukes,
Mr. Jones was wearing a short, brown leather coat, ?greenish color? jeans, high top sneakers and
a backwards baseball cap. id. at 90:24-91 :l l.

3. Evelyn Anderson

 

Evelyn Anderson went to on November 1 l, 1985 with Dukes. 
She saw Mr. Jones, who ate a sub while sitting at a table with her and Dukes.? m. at 10635~
107:1. As they were getting ready to leave, Anderson, Dukes, Mr. Jones and a fourth person with
a cast on his arm were stopped by the police. id. at. 107:8?20. An of?cer asked whether they saw
anybody run through the bar: they had not. Id. at 107:21?25. Mr. Jones was wearing a leather
jacket, a pair of sneakers, jeans, a shirt, and a cap turned backwards. Q. at 109:3?7.

F. The Commonwealth?s Theory of the Case

Based upon the evidence described above, the Commonwealth argued in its closing that
shortly after returning from D?Angelo?s, Mr. Jones led Mr. Rodrigues out of at gunpoint,
walked him across Montello Street to the D?Angelo?s parking lot, and shot him. Trio/1922. The

Commonwealth argued that Mr. Jones then ran up Ward Street, pursued by Perkins and Jones,

 

3! Anderson recalled Struthers being at thetable as well. l.

34

cut through the parking lot behind the auto body shop, ran across Franklin Street, and jumped a
fence behind the Cablevision Building, where he lost Perkins and Jones. 151.

From there, the Commonwealth argued, Mr. Jones went back across Franklin Street and
into Colonial Spa, where he discarded the murder weapon in the men?s room trash bin, and then

ran back down  street to Id. at 251-117. After entering through the back door, Mr. Jones
sat down at a booth with others, ate his sub as if nothing had happened, and waited for the police
to arrive. id. ?What better set of circumstances could he arrange for himself than to be inside the
bar when the police came looking for him?? the Commonwealth asked. 1g. Finally, according to
the Commonwealth, Mr. Jones sought to dispel any suspicion that he might have been involved
by approaching a police of?cer upon leaving the bar and asking what happened. E. at 26:7-13.
In other words, the Commonwealth argued that circumstances that might appear to eliminate Mr.
Jones as a suspect (egg, being in when the police arrived and asking an of?cer what:
happened) were. in fact, the result of Mr. ones? elaborate efforts to trick the police into thinking
he was not involved.
V. ARGUMENT

Upon a written motion, a judge ?may grant a new trial at any time if it appears that justice
may not have been done.? Mass. R. 'Crim. P. 30(b). The fundamental principle of this rule is that,
where it appears that justice may not have been done, the valuable "?nality of udicial
proceedings must yield to our system?s reluctance to countenance signi?cant individual
injustices. Commonwealth v. Breseia, 471 Mass. 381, 388 (2015)..

The SJC has held that a new trial is required in several circumstances, including: (1 )l
where newly discovered evidence ?casts'real doubt on the justice of the conviction,? in the sense
that the evidence ?would probably have been a real factor in the jury?s deliberations?; where

prejudicial constitutional error occurred; and (3) where the defendant demonstrates a ?substantial

35

risk of a miscarriage ofjustice,? namely a ?serious doubt whether the result of the trial might

have been different had the error not been made.? 13. at 389. gee aiso Commonwealth v.

 

pryek, 470 Mass. 607, 616-617 (2015) (newly discovered evidence); Commonwealth v. Martin,

 

467 Mass. 291,316 (2014) (prejudicial constitutional error); Commonwealth v. Sullivan, 385
Mass. 497, 503 (1982) (same); Commonwealth v. Childs, 445 Mass. 529, 530 (2005)
(miscarriage otjustice); Commonwealth v. Randolph, 438 Mass. 290, 297 (2002) (serious doubt
regarding result). While these cases have collectively ?crafted a latticework of more speci?c
standards designed to guidejudges? determinations in various types of situations,? these
individual standards ?have not eclipsed the broader principle that a new trial may be ordered if ?it
appears that justice may not have been done.? w, 471 Mass. at 389-390, quoting Mass. R.
Crim. Rule 30(b). in such situations, the ?appropriate test? is whether a defendant has received
a ?fair trial? and the ?question of fundamental fairness can only be determined on'a ease by case
ducting, Commonwealth v. Lombardi, 378 Mass. 612, 615?616 (1979).

Many of the speci?c traditionally reCognized circumstances supporting post?conviction
relief are present here, but as an 'over?archi'ngi'matter', the currently available record demonstrates
that Mr. Jones did not receiVe afair trial 'and?that ?justice may not have been done.? A new trial
is required regardless of the standard used to evaluate the numerous injustices.

Newly~Discovered Evidence Casts Real Doubt 0n the Justice of the

Conviction Because It Demonstrates, that the Police Tempered With Key
Evidence and Made Misrepresentations of Fact to the Trial Judge.

Where a motion for a new trial is premised upon newly discovered evidence, the Court
should grant the motion if the evidence: (1) was unknown to the defendant or trial counsel and
not reasonably discoverable at the time of trial and (ii) casts real?doubt?on the justice ot?the
conviction. 'Covyels, supra, 470 Mass. at 616. This standard applies whether the newly discovered

evidence is new exculpatory evidence that was not presented to the jury'in the original trial or,

36

alternatively, ?newly available analysis that would remove from the jury?s consideration
evidence admitted at trial in the Commonwealth?s cased? 1d. at 616-618. Where a defendant
presents newly available analysis that likely would have rendered inculpatory evidence
inadmissible, the Court must consider whether the inculpatory evidence ?likely was a ?real
factor? in thejury?s deliberations such that its elimination would cast real doubt on the justice of
the defendant?s conviction.? 1d. at 618 (citing Commonwealth v. Sullivan, 469 Mass. 340, 350
(2014)).

Here, a new trial should be ordered because forensic analysis demonstrates that the police
removed a portion of the videotaped Starks interview and gave testimony that is contradicted by
the forensic analysis. Had this information been known at the time trial, the video likely would
have been excluded as evidence. At a minimum, the information would have supplied powerful
material for cross-examination, casting serious doubt on the credibility of the officers involved
and the supposed ?identification? they obtained,

Moreover, because the videotape depicted an eyewitness purporting to select the
defendant?s picture from a photo array, it was very likely a ?real factor? in the jury?s
.deliberations"especially considering thatnot a single eyewitness identified Mr. Jones in court as
the shooter.

1. I The Trial Court Made ErroneousFactual Findings Based on Voir
.. Dire Testimony Which is Contrary to Currently Available Scientific
Evidence.

The Starks Videotape contained a 13.5 second interruptiOn during which a television
program, The Phil Silvers Show (?Sgt Bilko?), replaced the interview. A1000 (video) at 12:28?
l2z4vl; see also/?10001 (third video clip). The interruption came at the very moment when
Starks began to describe the shooting. 1d. Detective Smith asked Starks, ?Who had the gun,? and

then the interruption occurred, resulting in the loss of key evidence about the events immediately

37

surrounding the shooting. ld. As discussed in greater detail herein, a newly discovered report
written by Detective LaGarde and secured via public records con?rms that the missing content
was important and exculpatory.

During a voir dire examination, Detective Smith testi?ed about what he called a video
?malfunction.? Tr.4/l 1?30. According to Smith, he set up video equipmentbefore interviewing
Starks. 1d. at l422~l 5. When the interview was over, Smith rewound the tape and labeled it. ld. at
At some point after taping, he watched the entire video, and it was complete. id. at
1 512316;? Then, in January 1986, Smith played the tape for Elias. E. at 1628~l72l0. According
to Smith, it was during this viewing that he ?inadvertently, somewhere along about the middle of
the interview, pressed the record button on the V.C.R. as opposed to the play button and recorded
about 20 seconds ofa TV. program.? m.

Elias responded to Smith?s voir dire testimony with apparent bewilderment, stating, 
don?t understand this.? and asking ?was I aware that it was malfunctioning or did you find that
out 1g. at 16:17419; l7:l lw25. It is apparent from this and the following excerpt that
Elias did not recall witnessing the alleged malfunction or discussing it with Smith:

Q. You mean you recorded something else over that tape while I was there?

A. 7 Right.

Q. And I knew that?

Yeah. -We discussed it.



You mean maybe you told me that something went wrong and you got a TV.
program or something?

Yeah; in fact, the program is about 20 or 30 seconds of Sergeant Bilko.
thought that was on the original tape.

A. I don?t think he was present when the original tape was made.

Q. How do you know that you showed me a tape and I was watching it, you didn?t
tell me that stuff wasn?t on there, did you?

A. Mr. Elias. I said I made a mistake and pressed the record instead of the play
button and we laughed about it.

THE COURT: You don?t think Bilko was there at the time the picture video was taken?
MR. ELIAS: It?s probably immaterial; I don?t even remember it.
at 

lilias objected to the tape?s admission. The Court overruled the objection,
?nding that, ?except for a brief interruption as a result of Detective Smith inadvertently pressing
the wrong button for approximately 15 or 20 videotape is a fair and accurate
representation of what occurred on that day.? Q. at 33:10?3417. The Court ruled that, ?so much
of the video as relates to the identi?cation ofthe defendant is admissible.? id. The ADA had not
yet transcribed the interview. but had one made for the next trial day. Id. at 36:15?17; 38:6?12;
42207431922; 11020?111224.

The portion of the video played to the jury included the interruption.32 id. at 11127?12;
see also A1000.1 (third video clip); A510 (transcript of Starks Videotape shown to jury).
However, the transcription supplied by the ADA failed to indicate the place where the
interruption occurred. and instead presented Starks? statements before and after the interruption
as a single, uninterrupted response to Smith?s question, ?Who had the gun?? Cojgpag?e A510
(transcript) and A1000 (video) at 1 1 :31. Accordingly, any consideration-of the

transcription during deliberations would have Concealed the interruption.33

 

1?7 The trial transcript does not include a transcription of what the jury actually heard from the video but re?ects the
Court?s ruling as to those portions that were admitted. For non?admitted portions ofthe video, a court of?cer simply
turned down the volume so that the jury could see but not hear the recording.

The triai judge allowed the jury to consider the'transcription, but not the tape, during deliberations.

39

2. Newly?Discovered Evidence Contradicts Smith.

Since the time ol? trial, an entirely new forensic ?eld  digital forensic analysis re has
emerged as a recognized scienti?c discipline. Two sub?specialties within this ?eld make it
possible to digitally detect previously inaccessible video and audio characteristics from recorded
media, including edit points, over?recordings and other features that bear on authenticity.
Forensic video analysis. defined as ?the scienti?c examination,comparison and/or evaluation ol?
video in legal matters,? involves tasks related to the processing, examination, and interpretation
of video data, including ?timeline sequence reconstruction? and ?video authentication.? 
98 (Scienti?c Working Group on Imaging Technology (SWGIT) Section 7, ?Best Practices for
Forensic Video Analysis,? Version 1.0 2009.01.16). Forensic audio analysis involves the
corresponding processing, examination andinteipretation tasks related to the audio
characteristics of recorded media.

While authenticity analysis of static, photographic, images was possible at the time of
Mr. Jones? trial, ?examination of questioned video recordings for authenticity was not well -
reported until the late. 1 990?s, with one of the ?rst known peer reviewed publications on the
subject. Steve Cain?s ?The Forensic Examination oi?Video Recordings? publication in Fall,
i999." (Af?davit oerfl? Spivack); (Cain publication). Cain?s publication
came on the heels of the formation of the Technical Working Group on Imaging Technology
(later known as. the Seienti?c Working Group on Imaging Technology, or which was
convened in 1997/ 1998 by the FBI and a core group of ?individuals working in the ?eld of
forensic imaging from federal, state, local, and foreign law enforcement?nd the .8. military.?
 Moreover. while some forms of forensic audio analysis

existed and were in use at the time oftrial, it was the introduction of digitized or computer?based

40

methodologies in the early 20008 that truly revolutionized the ?eld of forensic audio analysis and
made possible the audio data ?ndings described herein. AFF014 (Af?davit of Marisa Dery).

At the time of trial. it was thus not possible to conduct an objective digital forensic
evaluation ol?the audio and video data on the videotaped recording of Smith?s interview of
Starks, nor was it possible to forensically test the veracity of Smith?s testimony regarding the
recording anomalies on the videotape. SQ AFF014 (Dery Aff.); AF 13081 (Spivack Aff.). In
2015, however, two experts in the field of digital forensics, Jeff Spivack' and Marisa Dery,
performed just such an analysis, examining the video and audio characteristics of the Starks
interview. Ali?F077?l 79 (Spivaek Aff. and supporting materials); ~076 (Dery Aff. and
supporting materials). In particular, each expert examined the portion of the video where the
video and audio content from the interview is temporarily replaced by a segment of television
episode. Both experts independently concluded that Of?cer Smith?s explanation for the manner
in which this interruption occurred is inconsistent with and contradicted by the video and audio
characteristics that are present on the recording.

Jeff Spivack. a highly'skilled forensic digital analyst with subspecialties in video
analysis and authenticity examination,34 processed and analyzed the VHS- tape recording of the
Starks interview that was obtained by defense counsel from the Commonwealth. 
Using recommended best practices in the ?eld of video forensic analysis, Mr. Spivack extracted
the video and analog audio signals from the video as an uncompressed (Audio Video

3? Spivack is the owner ol'a licensed investigation agency in Georgia and Florida and has specialized in forensic
video analysis and evidence photography for over ten years. He is currently certified by the Forensic Video
Certi?cation Board ofthe International Association for identification (1A1) as a Certi?ed Forensic Video Examiner.
one ot?only eighteen practitioners worldwide who is so certi?ed. He is the Director of Program Development for a
non?pro?t organization that provides digital forensic training to law enforcement and prosecutoriai agency
personnel, and also serves on the IAl?s Digital Evidence Science and Practice Subcommittee. A copy ot?his CV is on
the CD provided with theappendix.

4i

Interleaved) file and performed a preliminary authenticity analysis of the segment where the
interruption occurs. His analysis focused among other things on detecting and
analyzing the data level characteristics of an overrecording in this segment of the video. ta. An
overrecording ?occurs when new information is written over a previous recording, erasing
a segment of the existing video, audio, and control-track information, while replacing it with new
video, audio, and centrol?traClr data.?35

Spivack?s analysis revealed the presence of more than two switch points in the portion of
the video where the interview is interrupted by a' segment from Sergeant Bilko. AFFOSZ.
According to Spivack, this finding objectively estabiishes that the videotape is at least a third
generation recording (a copy of a copy of an original  or even a copy of a copy of a copy).
AFFOSZ More significantly, artifacts detected at the points. of interruption in the interview
strongly indicate that ?[t]he broadcast television program was already present on the videotape,
and overrecorded with the interview, exceptfor the portion that was redacted.? AFFO84.
Specifically. ?the overrecording contains color errors, errors, linear audio track
partial loss. control track modification, and ?pull?down? segments which  consistent with
what is known as a ?crash edit.? AFFOSZ, 084.

As described in greater detail in his af?davit, Mr. Spivack?s observations and-analysis
directly contradict Smith?s explanation for the interruption  the interview. Smith claimed at

trial that the interruption ocburred when he inadvertently pressed ?record? instead of?play?

 

Size AFF168 (Koenig et ai. Video and Audio Characteristics in VHS Overrecordings, Forensic Science
July 2006 Vol. 8 No. 3, 1). Each frame of video in a standard definition video contains two
separate images, aiso known as fields (odd and even). These ?elds or images are produced by the action of the dual
record heads in the VCR during the recording process. Through forensic examination, it is possible to visualize
?switch points? as the recording alternates between the two fields in each frame of recorded video. Because a
standard VCR has only two record heads, there can only be two switch points per frame of video in an original
recording; the presence ofthree or more switch points provides a basis for concluding that a recording is not an
original. AFF125-163 (Video Tape Authenticity by Characteristic Switch Points).

42

while showing the video to defense counsel, thereby recording over a brief portion of the
interview with a program on television. AF 13092?093. To the contrary, Spivack opinzes that the
yideotape with its missing content is consistent with a ?crash edit? in which content was
deliberately removed from the video by recording (and redacting content) from a master to a dub
tape without precise controls. AFFO84. Under this scenario, there is no reason why the master
tape?s contents would have been affected, as only the dub or destination tape would contain edits
or alterations. Certainly. evidence tending to show that the police redacted a portion of the video
without disclosing this action to the court or the defense, coupled with forensic proof that Of?cer
Smith?s alternate explanation is objectively impossible, undermine the authenticity of the video
and would render the Video inadmissible.

While thedigital forensic methodology employed by  Spivack to detect Smith?s crash
edit of the videotape had not yet been developed at the time-of trial, the trial transcript
coincidentally demonst'ratesrthat Smith indeed knew how to perform a crash edit. During a
discussion of how the court might choose to present the video to the jury in light of its ruling that
certain portions were inadmissible, the ADA passed along a suggestion made by Smith:

Yonr Honor, DetectiVe Smith proposed something, that if we were to have two

machines and sit down and have this tape laid and record tape, the other machine

record, we could do it so is that we would take the parts that would be admissible

from this tape and put them on the other tape.
find/42:844. This is a textbook description of how to do a ?crash edit.?

Spivack?s conclusions were independently con?rmed by a second digital forensics expert

with a subspecialty in audio analysis, Marisa Dery.36_Dery received two digital transfers that

 

3" The owner ofthe Audio Forensic Lab at Tamar Mastering and Somerville, Massachusetts, Dery has over 14 years
ol?cxperience in the field ofaudio forensics. She is a member ofthe Recorded Evidence Board at the American
College of Forensic Examiners Institute, where she also serves as Chair ofthe Authentication Committee. From
2000?20 3 4, she worked as a Forensic Audio consultant for the Suffolk County District Attorney?s Office, the Essex

43

formed the basis for her analysis: (1 a DVD containing VOB (?Video Object?) ?les, which she
converted in her lab to an uncompressed, loss?less, audio only ?le (or and (2) a
non?compressed AVI format ?le of the segment of the video where the Bilko interruption
occurs.37 By converting the VOB ?le to an audio~only ?le, Dery was able to
analyze the audio data on the recording as well as to create and verify a timeline ofthe recording
based on the start. and end times verbalized by Detective Smith at the beginning and end of the
recorded video. 012.

Dery?s analysis, described in greater detail in her Af?davit, yielded three main
conclusions. First, like Spivack, Dery concluded that the audio data from the
recording is inconsistent with Detective Smith?s testimony that he accidentally recorded over the
interview, and instead supports a conclusion that the Sgt. Bilko episode was already on the tape
heir-m the tape was used-to record the interview. This conclusion is based on her detection,
through hi gh?resolution waveform analysis,38 of multiple audio ?events? during the interval
where the recording interruption occurred, AFF 006, and of gaps in audio content during the
transition back to the interview. E. at 7?8. According to Dery, both of these ?ndings are

indicative of the Starks interview having been recorded over the television program, rather than

 

County District Attorney?s Of?ce, the Attorney General?s Of?ce, and the Boston Police Department. A copy of
Dory?s CV is on the CD provided herewith.

37 The latter ?le was provided to Dery by Spivack, who processed the ?les from VHS tape supptied by the defense.

38 ?High-resolution waveform analysis software aliows the on?screen display of the graphic relationship between
time,( horizontal axis) and amplitude (vertical axis) of recorded sounds.? (Kocnig Lacey, Forensic
Authentication of Digital Audio Recordings, J. Audio Eng. Soc. Vol. 57, No. 9, 662?695, 665 (2009)). In
authenticity anaiysis, the technique is used to ?allow the exact timing of events identi?ed through critical listening
or other examinations, the identi?cation and comparison of both digital and analog record events on evidence and
test tapes, the minute scrutiny ol?dropouts and transientlike sounds? and other related phenomena. Ld. at 674. Audio
,i?orensic use critical listening aided by the ?on-screen aneform displays and printed graphs [generated by
this to identify the exact timing ofthe recorded starts and stops, overrecordings, appropriate dropouts
and transientlike events, and other sounds ofinterest.? 1g.

44

the other way around. lg. Dery also performed Spectrogram analysis,39 revealing gaps in the 60
Hz ground hum that resides in most recordings and gaps in the audio data just prior to the restart
of the video. AFFOO8-OO9. These ?ndings provide further support for her conclusion that
Smith?s explanation for the manner in which the overwrite occurred was not possible. E.

Second, Dery concluded that ?the appearance of the prompt over a blue screen
just prior to the interruption in the Starks interview suggests that the interruption could not have
occurred in the manner Detective suggests in his testimony.? 1d, at 5, 9?10. According to Dery,
?[t]he appearance of the prompt at this particular juncture further demonstrates that 
contrary to Smith?s explanation what actually occurred was that someone stopped and restarted
a master taper resulting in the word appearing on the screen of the dubbed tape that was
then shoyvn to thejury.? Id. at 9.

Third, Dery concludes that somewhere between 18 seconds and 136 seconds of content
is missing from the interview. 6, il~l3. Dery reaches this conclusion by comparing the range
of?possi?ole interview durations based on Smith?s own stated start and end times (?10:19? and
?10:43) to the precisely calibrated duration of the recording length calculated by hi gh?resolution
W'avettirni analysis of the WAV ?le. This ?nding directly contradicts Smith?svoir dire testimony
(and the Court?s finding based on that testimony) that the amount of time missing from the taped
recording is equal to the duration of the interruption.

Taken together, the af?davits of Spivack and Dery strongly suggests that the police

deliberately perfOrmed a crash edit: to remove certain content from the Starks interview tape.

 

The sound spectrogram is a graphical display oftime (horizontal axis) versus frequency (vertical axis) versus
amplitude (gray or coldr scaling) that is used regularly in physiological studies ot?human and animai utterances,
medical research into speed disorders, and forensic voice identi?cation comparisons.? Koenig Lacey, supra, at
666. ?The rather distinctive time versus frequency versus amplitude display on a sound spectrogram can reveal the
effects ol?aliasing, certain record events, editing, and varying discrete frequency components,"  at 676, making it
at particularly useful tool to "clearly illustrate certain types ofrecord events and editing." lg at 677.

45

This type of action could explain why the actual run time of the recording is somewhere between
18 seconds and two minutes and 16 seconds shorter than would be expected based on the start
and stop times announced by Detective Smith on the tape. In other words, the forensic analysis is
consistent with a scenario in which someone erased a segment ofthe tape and then tried to
conceal or minimize his conduct.

3. Previously Undisclosed Police Records Suggest That Exculpatory
Evidence Was Removed From the Starks Videotape.

An inference of tampering and concealment is further supported by the recent discovery
of an undated, nine?page memorandum. from LaGarde to Captain Richard Sproules (?LaGarde
Memo?). which the Brockton Police Department provided in 201 1 in response to a Public
Records Act request. and AFF265 (Jones Affilioi'l?he LaGarde Memo summarizes the
investigation into Rodrigues? death, and specifically addresses the videotaped interview of
Starks. LaGarde, who was visibly taking notes during the tape?recorded interview,? wrote that
although the complete interview was taped, he would ?add a few of the more important points of
the interview.?_ A034. The LaGarde Memo contains information not included on the video,
speci?cally that Starks reported having seen Rodrigues and a second individual ?come from
behind and around from behind the body shop on'Montello Street? (A035), as depicted

below.

 

4? As discussed below, reading LaGarde?s trial testimony alongside the recently~produced LaGarde Memo reveals

that Elias, the ADA and LaGarde himself conducted themselves at trial as though the 1,.aGarde Memo did not exist,
asking and answering questions in a way that o'nly makes sense ifthe LaGarde Memo had not been disclosed. This
raises a seriOus concern that the Commonwealth may have violated Brady v. ?iryiand, 373 US 83, 87 (1963).

Detective LaGarde?s notes were not included in the Brockton Police Department?s tile obtained by counsel and
appear not to have been produced at trial.

46

 

 

 

 



H. 2..

 

[Figure 2: Current Google Maps satellite View of scene, with arrow marking route that Starks
said Victim and shooter frombehind the body shop on Montello Street.?]

Auto body shop

 

 

 

[ili?igure 3: Corrent Google Street View image of scene, with arrow marking route that Starks said
victim and shooter took ?around from behind the body shop on Montello Street.?]

Starks? statement was inconsistent with the Commonwealth?s trial'theory that, as part of

his ?plan,? Mr. ones left through the front door-of with Rodrigues at gunpoint, shot him

47

in the D?Angelo?s parking lot, ?ed to the Colonial Spa and discarded his gun, returned to 
and sat down to eat ?as if nothing had happened?? Tr.6/24: i 2-25217. The elaborate plan alleged
by the ADA in his closing wasnecessary to reconcile the theory that Mr. Jones was reSponsibie
for the shooting with the facts that, when the police arrived at the scene: the victim lay in the
parking lot, (ii) Mr. Jones was at and the weapon was at Colonial Spa. But Starks?
omitted testimony is exculpatory in that it presents a key fact at odds with the prosecution?s
theory.

The fact that the recently discovered LaGarde Memo contains a discussion of the portion
of the Starks Videotape that appears to have been crash?edited out and that contradicts the
Commonwealth?s trial theory is troubling. It suggests that exculpatory evidence may have been
intentionally removed from the tape to hide it from the defense and the jury, and that the
Commonwealth withheld a document that would have revealed this act. Had the information
remained on the tape, the jury might have been more likely to reject the Commonwealth?s
theory.

I 4. Other Aspects of Starks Videotape Contradiet Smith.

The Starks Videotape itself contains evidence that, given this new context, undermines
Smith?s account of how he conducted Starks? interview. Specifically, the video'suggests that
before starting the taped interview, police displayed photographs to Starks and informed her that

Jones was already under arrest.

 

"2 Ironically, the ADA cited the testimony of Starks in his closing to support: this theory: ?Terry said that she
was in Pete and Mary?s, and she had the defendant in there, she didn?t know his name, she didn?t know who the car with the other people, and as the defendant Darrell Diamond Jones walked out of
Pete and Mary?s with Guillermo Rodrigues, she was able to look at him, she saw him, she saw him with a

gun . .  In fact, Starks did not testify that she saw the shooter and victim leaVe together. To the
contrary, she testified that she first saw them ?they hit the corner where the fence is? (116., at the corner of Ward
Street and Montello Street). 

48

a. Evidence That Police Showed Starks Photographs Before They
Began Recording Her Police Station Interview.

Detective Smith testified that he interviewed Starks while she was in custody on default
warrants issued by the Brockton District Court but that he did not show her any photographs or
go over what she would say beforehe started recording. 23:3?24:6. This
portion of Smith?s testimony lacks credibility because, for the ?rst two minutes of the interview,
the stack of ten photographs that Smith eventually laid out for Starks to View are visible on a pad
of paper directly in front of Starks, with the photo on the top of the stack facing up towards

her.  video still below;  also (Selected Frames from Starks Videotape).

 

 

 

The video shows that, shortly after offering Starks an ashtray, Smith appears to notice the

stack of pictures sitting in front of Starks and picks it up, as shown in the still below.

 

 

After taking the stack, Smith shuf?es it for approximately ?ve seconds while Starks looks

.?am 5mm: 14.15:) Lam tr. wt:

 

 

 
   

OH

 

 

uh: an?. h?m n1;

Mn? lknui Auk:
. a

  

then turns it upside down (see still below), which is how it remains until he picks it up again and
43

spreads the photos out for Starks to View.

Juic- sm'um 

   
 

WNW

 

Rabid

A1000 (Starks Videotape); A1000.2-1000.18 (Selected Frames from Starks Videotape).
This Visual evidence contradicts Smith?s testimony because it demonstrates that, prior to

 

commencingthe taped interview, the pOIiCe placed a stack of photographs, face?up, directly in

43 shOw that at ieast two of?the photographic arrays presented in court included the names of the
ng concerns that the photographs

subjeCtsor'other identifying information on the back of the photographs, raisi
shoWn to Starks may also have'inciuded names on the back. SE 

5 i

front of Starks. More signi?cantly, it suggests that Smith and LaGarde showed the photographs
to Starks befgre they began taping and, in fact, may have shown Starks a second set of
photographs. When the interview begins, both sets of photographs are visible on the table in the
interview room:  image at p. 49 (indicating first stack with arrow and showing second stack
immediately below it in foreground). After Starks selects a photograph, Smith collects the ten

photographs in the ?rst stack, then picks up the second stack and combines it with the first before

placing both in-a single envelope, as shown in the image below:

 

 

This visual evidence demonstrates that the'police had already removed both stacks of
photographs from the envelope and placed them'on the table before starting the video. If the
police had not yet displayed any photographs to Starks, as Smith testi?ed,- one would expect
 be  the envelope when Smith began reCOrdingr Detectives-Smith'teStimony on this key
issue:- is simply not plausibleEvidence That the Police Told Starks Prior to the?Interview That
Darrell Jones Had Been Arrested for Rodrigues Murder

Thefvide?o- also demonstrates that Starks was informed before the interview that Mr. Jones

had been-arrested for Rodgrigues? murder. Smith testified during voir dire that he did not

52

mention the name ?Diamond? (116., Mr. Jones) to Starks before the interview. 
However, Starks makes clear on the video that she already knew of Mr. Jones? arrest when she
began the interview. pecifically, when LaGarde asks Starks if she knows that ?at this time [Mr
Jones is] underarrest,? she reSponds ?Yeah, he told me last night that he was under arrest.? A543
(transcript); see. also A 1000.1 (sixth clip). As she says this, Starks looks away from LaGarde in
the direction of Smith, the only other person in the room, and motions with. her hand. A1000.1
(sixth clip); (testifying that only Smith, LaGarde, and Starks were in the interview
room).

Starks? statement on the tape is consistent with her July 2012 statement to Mr. Jones?
investigator and counsel. In July 2012, Starks said that the Brockton police of?cers who arrested
her in Methuen the night before the interview told her on the drive back to Brockton that they
had already arrested the shooter whose name was Darrell Jones and that he went by the
nickname ?Diamond.? (Barter Aff.). Starks? statement is also consistent with the I
testimony of Smith, who stated during voir dire that Officers Spillane and LUciano arrested and
transported Starks back to Brothon the night before the interview. (Finally, it is
consistent with Starks? body language; at the same moment she said, i?he told me last night,? she
turned her head towards Smith and motioned with her hand. These circumstances demonstrate
not only that Starks knew prior to the interview that Mr. Jones had already been arrested, but that
the Broekton Police Department told her.

Even assuming that someone other than the police informed Starks of Jones? arrest
(which seems unlikely). the mere fact that she was in custody at. the time of her interview and
had knowledge ofJoneS? arrest casts serious doubt on the reliability ofthe purported

identification depicted on the tape and the justice of Mr. oncs? conviction.

53

B. The Evidence Shows That The Commonwealth Failed To Turn Over The
LaGarde Memo Prior To Trial, Raising Concerns Under Brady v. Maryland.

The Commonwealth has a constitutional obligation to disclose all exculpatory evidence

 

to a defendant in advance oftrial.  Brady v. Maryland, 373 US. 83, 87 (1963); r_l_e_s v.

514 US. 419. 437?438 (1995); Commonwealth v. l?illison, 376 Mass. 1 (1978);

 

Commonwealth v. Gallarelli, 399? Mass. 17, 20, n. 4 (1987); Commonwealth v. Tucceri, 412

 

Mass. 401 (1992). This obligation includes ?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  at 437. gig; also Commonwealth v. Martin, 427 Mass. 816 (1998). The Commonwealth
is deemed to be in possession, and is under the obligation to produce, police records even if the
prosecutor never knew of the information and did not have it in his ?les. v.
Qantas, 399 Mass. at 20 and 11.4. i I

Prior to trial, Elias filed a'series of discovery motions, including a motion for ?production?
and inspection of reports made by any police of?cer.? A214-215 (docket). Mr. Jones? post?
eonviction counsel have sought to determine precisely Which documents were provided in
pretrial discovery to trial counsel44 by the ADA, in part via Public Records Act requests.
nl'ortunately,the District Attorney?s Office has not been forthcoming in responding to
Public Records Act requests, making it dif?cult to piece together what pre-trial discovery Elias
received. Sgt; A001 ?006.

Post?conviction counsel first made a Public Records Act request of the DA in October

201 1. After nearly a year?1ong series of letters, counsel filed an appeal with the'Secretary of the

 

Trial counsel, Kenneth tilias is deceased, and efforts to obtain any documents that he may have retained regarding
this case have been unsuccessful. The trial transcript shows at least two instances of Eiias questioning whether the
ADA provided copies of documents used by the Commonwealth, raising concerns about pre?trial discovery. See
(Colocousis report, autopsy summary, ballistics report); (sketch made by Paui Jones at
police station on night of shooting).

54

Commonwealth in August 2012. On October 22, 2012, the Secretary directed the DA to provide
access to the requested documents within ten days. Eleven days later, on November 2, the DA
provided a list 0 1w 21 categories 01" documents and estimated costs to copy and redact the
documents. Counsel responded on November 5, enclosing a check for the requested amount.
Two months went by with no activity from the DA, and even after several additional letters from
counsel, the DA did not produce any documents until March 2013, some 17 months after the
initial request.

liven then,the documents provided by the DA were so heavily redacted that they are of
limited use.? By way of example, the DA redacted the narrative portion ofipolice reports in their
entirety, making these documents useless to Mr. Jones. 553, gg, A169 (Report dated
1 1/ 1 1/85: ?When arriving at the scene 1 observed [remainder of narrative The DA
also redacted portions of Mr. Jones? publicly?available docket sheet (A216), and Mr. Rodrigues?
name from the indictment (notwithstanding that his name appeared on many other documents)
(A221 The production, to the extent that it can be understood despite redaction, 'omits any
correspondence regardin pro?trial discovery disclosures.46

Among the documents included in the production but nearly redacted in its entirety
was the LaGarde Memo. Had the Brockton Police Department not separately provided access to
that document in 201 1, Mr. Jones would never haVe learned of two crucial pieces of exculpatory
information: (1) that in deleted portion of the videotaped interview, Starks stated that she saw the

shooter and victim come from behind the auto body shop, which was inconsistent with the

 

45 Even the simplest requests for Copies ofthe trial exhibits, which are- missing from this Court?s ?les, and likely in
the possession ofthe DA, have been refused. 

46 Accordingiy, counsel for Mr. Jones are ?ling concurrently with this briefa Motion for Post-Conviction Discover
to determine, among other things, the scope of the District Attorney?s pre?trial production. - 

55

 ommonwealth?s theory of the case; and (2) an account of how, when LaGarde and Smith went
to interview a different witness two days after the shooting. they found a black male hiding in the
closet whom they later were told went by the nickname ?Deke.?47

The Court can find a B_rady violation because it is apparent from Elias? examination of
LaGarde at trial that he did not have the LaGarde Memo. On direct examination, LaGarde
described interviewing Mr. Jones on the night of his arrest. He testi?ed that Mr. Jones denied
going to [TAngelo?s on the night of the shooting and said he remained in the doorway of 
awaiting the return of his friend, who went to purchase the sub. On cross
examination, Elias asked LaGarde whether he made any notes of his interview, and LaGarde said
yes and handed a set of notes to Elias.48 T124/78z7?i3. Elias then used that set of notes to
establish that they do not reference this exchange with Mr. Jones. To
rehabilitate IraGarde, the ADA showed him a transcript of his December 1985 grandjury
testimony, in which he was asked if Mr. Jones had told him whether he had left on the
evening of the shooting. Having been refreshed with his prior testimony, LaGarde testi?ed that
he answered the question in the grand jury by stating that Mr. Jones denied ever leaving the bar.

If Elias had been provided with a copy of the LaGarde Memo, he presumably wOuld not
have pressed this point on ei?oss?ieXamination, since the Memo contains an entire paragraph

describing-Mr. Jone's? alleged denial ofleaving 

Jones teld us that he had been in Pete &7Mary?s on the evening ofthe shooting,
but that he had never left. . . . He said a friend of his, whom he did not know by

 

'17 As discussed above, Struthers toid Luciano and Coiocousis that she knew the person she went to D?Angelo?s with
as ?Deke,?

48 These notes were marked as Exhibit i7 at trial. The D.A. has refused to provide access to the exhibits, but it is
apparent from the triai transcript that these notes are not the same as the LaGarde Memo. During his examination, 

LaGarde read an excerpt from his notes, and that excerpt does not match up to any text in the LaGarde Memo.
Compare and A028-036.

56

name, had offered to get him a sub from the sub shOp across the street. He said

she left Pete Mary?s and went across the street and he stood by the front door

inside and awaited her return. He said she came back with the sub and gave it to

him. He said he never left Pete and Mary?s during that time when the shooting

occurred. . . .
A034. Moreover, if the ADA had disclosed the LaGarde Memo, he presumably would have used
the Memo, rather than LaGarde?s grand jury testimony, to rehabilitate LaGarde on redirect. After
all, the above excerpt from the Memo is practically identical to? LaGarde?s testimony. On direct,
LaGarde testified that Mr. Jones ?said a friend, whose name he didn?t know, had gone across the
street to purchase a sub for him and that he had stood in the doorway and awaited. her return.?
Tr.4/68: 1 1-14. The report states that Mr. Jones ?said a friend of his, whom he did not know by
name, had offered to get him a sub from the sub shop across the street and he stood by and
awaited her return,? A034.

Finally, if the LaGarde Memo had been disclosed, LaGarde himself presumably would
have. brought it up in response to Elias? cross-exarnination Instead, LaGarde af?rmatively

conceded that he never wrote this infermation down:

i Q: I Certainly, the stuff that you are going to need to nail the defendant, one of which
was that he was outside to be seen by Paul Jones and Denise Perkins, is that
important?

A: Yes, sir, it is.

Q: Wouldn?t you write that down?

A: I didn?t write that dewn.
It" the LaGarde Memo had been disclosed, why would LaGarde not instead have
responded, absolutely did write it down; it?s in my memo to Captain Sproules?!

The fact that LaGarde refrained from referencing his own Memo when it would have

been advantageous to do so, and instead testi?ed?zlsely that he ?didn?t write . . . down? that Mr.

Jones denied going to is strong and. credible evidence that the LaGarde Memo was

57

withheld from Elias. Whether it was LaGarde or the ADA who withheld the Memo, the only
reasonable interpretation of LaGarde?s testimony and the responses of the parties is that Elias did
not know about the Memo.49

C. Jones Was Deprived of the Constitutional Right to the Effective Assistance of
Counsel Because His Trial Attorney Had Undisclosed Conflicts of Interest.

The newly discovered evidence regarding the Starks Videotape and LaGarde Memo also
casts new light on the issue of Elias? representation of Smith, arde, and other Brockton
police officers prior to or at the time of Mr. ones? trial. Mr. Jones raised the issue of Elias?
con?icts in his second. motion for new trial, but he did so without the bene?t of this newly
discovered evidence, which bears strongly on the issue of prejudice. Moreover, additional
evidence concerning the scope of the con?ict has come to light which warrants a fresh look at
Elias" conflicts of interest.

Under the Sixth and Fourteenth Amendments to the Constitution of the United States and
Article 12 of the Declaration of Rights (?Article criminal defendants have a right to counsel

unimpaired by loyalty to others. SEE Commonwealth V. Mosher, 455 Mass. 811, 8-19 (2010),

 

Citing Commonwealth v. Fogartv, 419 Mass. 456, 458 (1995); Glass-er v. United States, 315 US.
60. 75 (1942). A conflict of interest arises whenever an attorney?sregard for one duty, such as
that owed to a third party or in service of his own interests, leads the attorney to disregard
another duty, such as that owed to his client. Commonwealth v. Goldman, 395 Mass. 495, 503

(1985).

 

While we do not know for sure whether the ADA was aware ofthe LaGarde report at the time oftria], we do
know that, at some point, the report came into the District Attorney?s possession because a copy of it that is almost
completely redacted other than the introductory sentence and LaGarde?s signature was included in the 
eventual production. Al75~183.

58

In this case, Mr. ones? constitutional right to effective assistance of counsel was violated
because Elias had con?icts that were not disclosed until several days into the trial. When Elias
?nally disclosed the con?icts to Mr. Jones, he made a disclosure that was plainly inadequate. Not
only was the disclosure contrary in key respects to the disclosure made earlier that same day to
the trial ridge; but it minimized the importance of the conflicts and failed to describe accurately
the nature of the representations.

1. Counsel Concealed Con?icts of Interest From Mr. Jones Until the

Third Day of Trial, and the Disclosure He Finally Made Was
Incomplete and Misleading.

There is ample evidence that Elias was operating under actual conflicts of interest that
were not disclosed to Mr. Jones prior to trial. Of the ?ve Brockton police of?cers who testi?ed
for the Commonwealth, Elias had a present or former attorney?client relationship with three:
Smith, LaGarde, and Colocousis. All three played critical roles in the investigation and trial.
L-aGarde and Smith both served as lead detective, see (LaGarde); 
(Smith). both were present for the taped interview of Starks, and both played key roles in i
concealing the crash edit of the Starks Videotape. Colocousis Was the ?rst police of?cer to arrive
at the crime scene (Tr.2/76: 0?7714), where he apprehended a suspect who matched the
Perkins/Jones descriptions of the shooter but then released him without getting his name (id. at
Colocousis was also present When-Mr. Jones was questioned following his arrest.
A034.

The trial transcript shows that Elias did not disclose his representations of the of?cers
until several days after trial began. and even then only did so after-he learned that the judge had
 made aware of one of the representations the previous day. On the third day of trialrElias

raised the issue with the Court, outside the presence of Jones:

59

MR. ELIAS: I?m told that you may be aware of the situation that developed late
yesterday afternoon. It occurred to me that I represented all of the police officers
who  almost all of the police officers, who are going to testify and in fact
presently represent one of them. In the Jeffrey Jones case that I tried some time
ago, that situation existed there, and I made it known, don?t know why it didn?t
occur to me.50 And Judge Wagner held a hearing in open court with the defendant
on the record. Judge Wagner last week said to me, listen we got to have that
fellow up before I leave because I have to hold another hearing on a potential
conflict that you might have with the police witness. I said, why? He said the SIC
sent it back to me. He was going to send me a copy of it, but I never got it.
Yesterday I was talking with one of the court of?cers, Teddy Colocousis. I?le said
li?otis said you weren?t as tough on me as Ottino; that lit it off. Then I remembered
I represented Joe Smith on a will contest with the father and limeggedggn
'LaGarde over the years and presently represent him on another matter. My client
is not aware of any of that. I thought I would call it to your attention before we go
too far, and Judge Wagner may know.

 

THE COURT: Let?s take it up at the recess.

MILIEIJAS: Sure.

THE Cle RT: You haven?t discussed it with your client yet?

 ELIAS:  thetime I got here-this morning, he wasn?t here yet.
(Emphasis added.)

Before the morning recess, Elias raised another potential con?ict after the ADA called
Paul Jones. :3?42z9. Elias disclosed that he might be representing Jones? mother in an
unrelated case and suggested asking Jones his mother?s name. Id. I-:-Ioweyer, neither Elias nor the
Court pursued it further until the morning recess, by which, time Elias had concluded his cross?
examination of the Witness. 

Mr. Jones did not learn of Elias? con?icts until the morning recess, after Elias had already

examined two of the four witnesses raising conflict issues. During the recess, Elias came to

 

50 The Jeffrey Jones trial took place in February 1985, A448-449, and Judge Wagner held a hearing on the con?ict
issue in that case, in the presence ofthe defendant, in March 1984. Despite having spoken with Judge Wagner about
the issue shortly before trial, Elias failed to disclose his relationship to Officers Smith, LaGarde, and Colocousis
until the third day of trial, after he had already cross examined Colocousis.

60

speak with Jones in the prisoner dock and told him that he was about to have a discussion with
the judge, at the end of which the judge would ask Mr. Jones whether he wanted Elias to
continue representing him. (Jones Aff.) at ill 6. Elias instructed Mr. Jones to answer,
?yes,? adding words to the effect, ?we know you didn?t do this, let?s get out of here.? 1d. Elias
did not explain what the discussion would concern and did not otherwise discuss the nature ofhis
conflict. id,

The disclosure that Elias made in Mr. Jones? presence is included at pages 85 through 90
of the transcript of trial day three, September 24, 1986. It is apparent from the court?s
questioning of Mr. Jones that Elias had not previously disclosed the con?icts, and therefore it
was crucial that Elias provide a complete and accurate account of the facts. Yet Elias? statement
in the presence of Mr. Jones contrasted in several respects to his disclosure to the Court earlier in
the day. First, in contrast to his statements to. the judge, during which he twice stated that he
?presently? represented L2iGarde, Elias? told Mr. Jones that ?one of [his] associates? Was
representing LaGarde as a defendant in a civil dispute, and that'he ?had nothing to 3do with it for
the last three years or so.? Second, Whereas Elias reported to the trial judge that he
had ?represented Don LaGarde over the years,? suggesting multiple representations over
multiple years, his disclosure to Mr. Jones suggested a single past representation and an instance
of being adverse to LaGarde. have been against [LaGarde] in a divorce action
with his wife and 1 represented him civilly?). Third, When speaking in the presence of Mr. Jones,
Elias did not disclose Sergeant Colocousis?s remark. to Teddy Colocousis, the court officer, that
Elias wasn?t ?as tough on me as Ottino.? At best, these changes

resulted in a disclosure to Mr. Jones that was softer, more tempered, and less likely to arouse

61

concern. At worst, they contradicted what Elias told the judge and created a serious risk of
misleading Mr. Jones.

Elias? disclosures to the court and Mr. Jones are also noteworthy for what they omitted.
When Elias made a similar disclosure in the Jeffrey Jones case before Judge Wagner - a
disclosure made nearly one year before the Jeffrey Jones trial, not midway through trial, as here51
- he stated that he, ?over the years and currently . . . represented a number of the Brockton Police
on civil matters, civil rights violations, etc.? and that he ?continue[d] to do that.? S_ee
Commonwealth v. Jones, 403 Mass. 279, 281 and n.2 (19.88). Elias disclosed that he represented
?at the present time, Capt. [John] Bukunt on a civil matter and maybe 10 to 12 of the Brockton
Police Officers on civil matters.? id. In his conflict disclosure to Darrell Jones, by contrast, Elias
failed to reveal the extent of his representations of Breckton police of?cers in civil matters,
including alleged civil rights violations.

One thing that changed between March 1984, when Elias made his disclosure in the
Jeffrey Jones case, and September 1986, when he made his disclosure in Darrell Jones? case, is
that lilias was served in May 1984 with a Petition for Discipline by the Board of Bar Overseers
for alleged ethical violations. See 5 Mass. Att?y Discipline Rpts. 123. Elias never disclosed this
information to Darrell Jones either, even though during the first two months of representing him,
the BBQ held two hearings in Elias? case. ,See id. Whether Elias failed to inform Mr. Jones prior
to trial of his con?icts because he was distracted by his own case, feared the prospect of another
ethical issue arising while hisBBO matter was pending, or for other unrelated reasons, the

prejudice to Mr. Jones remains the same.

 

5] The Jeffrey Jones trial took place in February 1985. See (Brockton Enterprise, ?Jury selected in trial of
man charge in the slaying of city woman," February 20, 1985). Eiias made his disclosure to Jeffrey Jones on
March 12, I984. ?e_e Commonwealth v. Jeffrey Jones, 403 Mass. 279, 281 and 11.2 (1988).

62

A review of civil rights cases against the City of Brockton shows that Elias represented
Broekton police officers in such cases for nearly a decade prior to representing Mr. Jones:

0 1977?1982, represented Officers John Strangisand Joseph Picehione. $95,
Schiller): Strangis, 540 F. Supp. 605 (I). Mass 1982).

0 1981?1984, represented Officers Arthur McClaren, Peter Crone, Anthony
Zarrella, Chris Sampiere, and David Dennehy. See (papers filed by
Elias in Chief Red Blanket, et al., v. Sullivan, et al., Civ. No. 81-792uMc (D.
Mass?.

9 1985-1987, represented Officer Charles Studenski. ?e_e (papers ?led by
Elias in Masaitis v. Studenski, Civ. No. 85-0542-8 (D. Mass.))

These federal cases are likely only a small fraction of the total number of cases in which
lilias represented police officers. Thirty years after the fact, Mr. .lones is limited to information
preserved by the National Archives; files from Brockton District and Superior court cases prior
to 1986 the heyday of Elias? practice are largely inaccessible. However, even based on the
limited records that stillexist, Elias?s close professional and ?nancial ties to the Brockton police
force are evident. The repeated nature of Elias? representation of Brockton police of?cers, as
well  the ongoing and long?lived nature of those represeritatidns, was material to a full
disclosure of the conflictraised by Elias? representation of Smith, LaGarde, and Colocousis and
should have been disclosed.

2. Elias Had an Actual Con?ict of Interest.

A conviction may be reversed on the basis of either an actual or a potential con?ict of

interest.  Commonwealth v. Croken, 432 Mass. 266 (2000); Commonwealth v. Martinez, 425

 

 382 (1997). An ?actual? conflict ofinterest arises where the ?independentprofessional
judgment of trial counsel is impaired, either by its own interests, or by the interest of another
client.? Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). In contrast to the federal standard,

once a defendant demonstrates that there is an actual conflict, Article 12 does not require proof

63

that the defendant was prejudiced by the con?ict or that counsel?s performance was adversely
affected. Commonwealth v. Fonarty, 419 Mass..456, 459 (1995). Rather, reversal is required
unless the defendant is found to have waived his right to representation. Martinez,
425 Mass. at 389-94.

Massachusetts courts will ?nd an actual con?ict where, at the time of trial, the defense
attorney represents in another matter a prosecution witness who furnishes. material testimony
concerning a critical issue in the case against the defendant. Commonwealth v. Mosher, 455
Mass. 81 1, 820 (2010); Martinez, 425 Mass. at 382 (?nding actual conflict where defense
counsel represented witness on minor charge despite defense counsel?s statement that.
representation had ?effectively ended?). Elias?s relationship with LaGarde posed an actual
con?ict whether Elias represented LaGarde (as he twice told the judge), or whether an
?associate? represented LaGarde (as he told Mr. Jones).

Elias?s relationship with LaGarde denied Mr. Jones the undivided loyalty ofhis attorney.
Not only was Elias (or his associate) actively representing LaGarde at the time of Mr. Jones?
trial, but Elias admittedly represented LaGarde on multiple matters ?over the years.? Combining
recently discovered extrinsic evidence with Elias? disclosures at trial, it appears that Elias
represented LaGarde in at least four matters: two probate court matters and two civil disputes.
Plymouth County Probate Court records showa professional relationship with LaGarde dating,
back to at least 1972, when Elias represented LaGarde in a divorce action. 539 A318 Elias was

retained in connection-with another divorce involving LaGarde in 1983. 14319.52 Elias also

 

3?3 While Elias is listed as attorney ofrecord for LaGarde?s spouse in that action, the docket re?ects that LaGarde
proceeded pro se and that the matter was resolved by agreement ofthe parties. 1d,. Elias? involvement on behalf of
LaGarde in the earlier proceeding. combined with Elias? admission at trial that he represented LaGarde on other
matters, suggests that he mayhaye been retained to draw up a divorce settlement that bene?tted both parties.

64

admitted to having represented LaGarde ?civilly? in the past and to ?presently representing? him
as a defendant in a civil dispute involving his family. These facts are far more compelling than
those in Martinez, but even in Martinez the found an actual con?ict based on counsel?s
representation of a prosecution witness on an ?effectively ended? disorderly conduct matter.

Martinez, 425 Mass. at 389.

 

liven assuming that Elias? associate, rather than Elias himself, represented LaGarde at the
time of trial. the con?ict was still ?actual.? ln Commonwealth v. Hodge, the SIG found an actual
conflict of interests where Hodge?s counsel?s law partner represented an essential witness in an
unrelated libel suit during Hodge?s trial. 386 Mass. 165, 167 (1982). The court explained that the
con?ict existed between counsel?s ??nancial interest in not antagonizing his firm?s client by a
vigorous cross?examination designed to discredit him, and his duty to consider only Hodge?s best
interests in deciding whether and how to cross-examine.? id. at 168. The fact that it was
counsel?s partner, rather than counsel himself, representing the witness, was ?immaterial.? 1d.
Likewise, it is immaterial that Elias?s ?associate? may have been the one conducting the
continued representation of LaGarde.

Elias did not disclose the nature of his business relationship with the unidentified
?associate.?but there can be no doubt that Hodge controls. if associated lawyers hold
themselves out to the public as a firm or (2) conduct themselves as a firm,? an actual con?ict
may arise. Commonwealth v. Allison, 434 Mass. 670, 690 (2001). The fact that Elias initially
accepted ownership of the open case himself, and then stated that his ?associate? was
representing LaGarde, supports the conclusion that Elias and his associate were working on cases

together and therefore conducting themselves as a firm, creating an actual con?ict.

65

Although extensive searching has not yet revealed the precise extent of tlias?
representation of LaGarde, extrinsic evidence suggests that Elias had only one associate at the
time of the defendant?s trial: Philip C. Nessralla, .lr. When Elias sought readmission to the bar in
1993, he testified to the hearing panel that he intended to associate himself with Nessralla, whom
Elias described as ?the man associated withbefore.? A374. Nessralla wrote a letter agreeing to
the proposed arrangement and signed a petition in favor of Elias? readmission, describing himself
as Elias? ?former associate.? A413. Accordingly, both Elias and Nessralla have acknowledged
that they had an association.53

Recently discovered evidence corroborates that Elias and Nessralla worked on cases
together and often both entered their appearances on behalf of the same clients. For example,
when Nessralla testified at an cvidentiary hearing on July 24, 1984 in the Jeffrey Jones case, the
Brockton Enterprise described Nessralla as an associate  Elias who accompanied Elias to the
meeting between the defendant-and the ADA at which an immunity deal was allegedly struck.
A444 (Enterprise, 7/25/84, ?Prosecutor denies defendant In addition, Nessralla attended
depositions with Elias in the Chief Red Blanket civil rights case and entered his appearance on
bchalfof Elias? Brockton police officer clients. A317. This recently discovered evidence
underscores that Elias and Nessralla held themselves out as an association and, therefore, that
 controls. Accordingly, the representation of LaGarde at the time of the defendant?s trial

gave rise to an actual con?ict, and the defendant need not demonstrate prejudice. 

5?1 These admissions are consistent with the fact that, at the time ofdefcndant?s trial, both lawyers worked out of the
same office at 1063 North Main Street, and they were the only two attorneys who worked out of that office. ?ge
(1986 Brockton Yellow Pages), Lawyer?s Diary and Manual).

66

3. Elias Had Numerous Potential Con?icts of Interest That Resulted in
Material Preiudice

Even assuming that Elias? con?icts were merely potential, reversal of Jones? conviction
is nevertheless appropriate because the conflicts resulted in material prejudice to Mr. Jones.
Shraiar. 397 Mass. at 20. Elias? past representation omeith, l..aGarde, and Colocousis,
combined with his history of representing Brockton police of?cers on civil rights matters,
created at least a potential con?ict of interest. During the ?ve years prior to the defendant?s trial,
Elias represented at least thirteen Brockton police of?cers, and possibly more. A296-298, 29.9
316, 318?3l 9. Given the sheer number of Brockton police of?cers who were clients of Elias,
there was a serious risk. that Elias? interest in maintaining positive relations with these and
potential ,t?uture police of?cer clients could interfere with his ability to zealously represent Mr.
Jones. Speci?cally, there was airisk' that Elias might refrain from cross~examining his former
police of?cer clients as forcefully as he might cross-examine someone with whom he had no
professional relationship. Hodge, 386 Mass. at 168 (?nding con?ict where defense counsel had
?nancial interest in not antagonizing ?rm client on cross examination).

Elias? failure to aggressively cross-examine Of?cers Smith, lsaGarde and. Colocousis was
uniquely harmful in this case. As one after another of the Commonwealth?s civilian witnesses
failed to'identit?y Mr. Jones as the assailant, and several disputed ever having ever made an 0er?
Qt?court identi?cation, the Commonwealth elected to pit the credibility of its of?cers against that
of its oWn eyewitnesses. Despite the clear need to discredit these Of?cers in order to prevail at
trial. Elias failed to vigorously cross?examine them on the many issries that would have
undermined their credibility and revealed their bias.

Examples of Elias? failure to conduct thorough cross?examinations of the police

Witnesses whom he represented abound. Below are just a few:

67

When Smith testi?ed that the 13.5 second Sergeant Bilko interruption was the
result ofhis inadvertently pressing the ?record? button in the presence of Elias,
Elias made no effort to challenge Smith on that point. instead. Elias dropped the
issue altogether, stating probably immaterial, i don?t even remember it.?
Tr. 

When Smith denied showing any photographs to Starks before making the video
:8wl Elias failed to impeach him with the video itself, which clearly
shows the ten~man array stacked in front of Starks for the ?rst two minutes of the
tape.

Although Smith authored a report in which he identi?ed another man, Steven
Betts, as someone whose ?name has been mentioned several times as possibly
being the one that did the shooting,? A054, Elias failed to question the integrity or
thoroughness of the police investigation of this individual.

Despite the crucial nature of the alleged utterance, ?it?s Diamond,? Elias failed to
confront Smith with his police report, which showed that he ?rst learned about the
alleged utterance from a con?dential informant who had previously provided had
information, and failed to cross?examine Smith regarding Fina, Watson, and
Levine?s alleged statements incorrectly attributing the utterance to Starks.

After learning of the judge?s ruling that the Starks? video would be admitted, Tr.4/ 
66:17-21, Elias failed to recall LaGarde in order to confronthim with Starks?
statement on the video (in response to a question by LaGarde) that she knew Mr.
Jones had already been arrested.

When Coincousis testi?ed that Perkins and Jones each deScribed the shooter as
being approximately six feet tall, Elias failed to confront
him with the fact that both witnessed testi?ed at the grand jury to a signi?cant
height difference between the victim and the shooter. SEQ Luge}, p. 16, n.l l; p. 17,
n.14. 

Elias failed to confront Colocousis with pertionsof his report that reveal how,
despite having been told by Struthers that she referred to Mr. Jones as ?Deke,? he
consistently used the nickname ?Diamond? when describing references by
Struthers to Mr. .lones. See prOperly developed line of questiOns
about this issue could have established strong evidence that the police were 
conforming the evidence to their theory of the case even?where the facts did not
support that theory. 7

Elias also failed to cross?examine Coloeousis regarding Shanks? claim (made in
the ?rst time in a supplemental report prepared two weeks'before trial) that
Colocousis Spoke directly to Mr. Jones. on the night of the shooting. Elias could
have used this statement to show that, although both Colocousis and Shanks were
aware of the description of the shooter provided by Jones and Perkins, neither one
of them perceived Mr. Jones to match that description when they saw him at the

68

scene within minutes of obtaining the description. (testimony of
Perkins that she and Paul Jones left for the police station about five to ten minutes
after the shooting).
6 Although two different reports by Colocousis referenced a distinctive 
Worn by Mr. Jones (A018, A024), Elias failed to confront Colocousis, Smith, or
LaG-arde regarding the fact that none of the witnesses reported seeing a bleached
?tail? on the ?eeing shooter.
Elias? failure to pursue these and other points as part of a vigorous cross-examination prejudiced
Mr. Jones, resulting in a violation oer. Jones? Constitutional right to counsel unburdened by
conflicts of interest.
4. Jones Did Not Waive His Right to Conflict?Free Representation.

The finding of waiver of a constitutional right to conflict-free counsel should not be made
Commonwealth v. Goldman, 395 Mass. 495, 507 (1985). Courts should indulge every
reasonable presumption against waiver. 191. (citing Johnson v. Zerbst, 304 US. 458, 464 (193 8).
Any waiver must be an ?intentional relinquishment or abandonment of a known right,? not

only voluntary but also a ?knowing, intelligent? act done with sufficient awareness of the

relevant circumstances and likely consequences. id, (citing Brady v. United States, 397 US. 742,

 

748 (1970i),

Based on these principles, the SJC instructed the trial court in goldw to require on
remand ?that the defendant receive a full disclosure of the con?ict and its projected
rami?cations.? "395 Mass. at 507. The SJC noted that the judge Ishould actively participate in the
waiver decision, seeking ?to elicit a narrative i?e-Sponse from [the] defendant that he has been
advised of his right to effective representation, that he understands the details of his
attorney?s . . . conflict of interest and the'potential perils. of such a con?ict, that he has discussed
the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives

his Sixth Amendment protections.? (citing United States v. Garcia, 517 F.2d 272, 278 (5th

69

Cir. 1975)). The SJC also noted that in some circumstances, it is for the court "to
ensure that the defendant has had the advice of independent counsei before finding the
defendant?s waiver valid.? Lei. at n\.l4 (citing Commonwealth v. Conner, 381 Mass. 500, 505 n.5
(1980)). I-iere, these basic protections were not met and, accordingly, Mr. Jones did not waive his

right to counsel unburdened by con?ict.



a. Mr. Jones did not receive afull and fair disclosure ofth
conflicts and tlzeinpotential. rami?cations.

'l?o assess the adequacy ofthe disclosure made to Jones at trial, one must consider what
Jones knew of the conflicts prior to trial: nothing. (?My client in fact is not even
aware ofit, so it?s the ?rst time he?s hearing also 

Since Mr. Jones was not previously apprised of thereonflicts, he can only be found to
have ?waived? his right to un?contlicted counsel if, during the several minutes ofdisclosure and
colloquy on the third day of trial, and without advice of counsel, he made a knowing and
intelligent decision to do so, ?with sufficient awareness of the relevant circumstances and likely
consequences.? Goldman, 395 Mass. at 507. Here, the trial record and extrinsic evidence
show that Mr. Jones was prevented from making a knowing and intelligent decision because he
was presented with a disclosure that was inaccurate and incomplete.

 discussed above, Elias?s disclosure to the trial judge was materially different from his
disciosure to  Jones (se_e_ supra, pp. 61?63). Nevertheless, the trial judge failed to bring these
differences to Mr. ones? attention. To the contrary, after Elias completed his statement, the
judge told Mr. Jones that he now knew ?all the facts,? adding ?you know the same facts that I
do.? 1.4?20. Neither statement wasaccurate, however, because Elias had told the judge
information that he did not tell Mr. Jones, including that he (not his associate) was then

representing his long?time client LaGarde, and that Colocousis had told his brother that Elias had

70

not been very tough on him. The failure to disclose this information to Mr. Jones was all the
more troubling because the judge?s colloquy focused on the dangers associated with defense
counsel having previously represented a witness for the Commonwealth 
including the danger of?a lawyer going easy on a witness because he represented him in the
Where. as here, a former client remarked that Elias had not be ?tough? when cross?
examining him, there could be no full disclosure absent that detail. Jones was not adequately
advised of his right to effective assistance of counsel.

It is well established that the trial judge has an ?affirmative duty to conduct a colloquy to
insure that the defendant is informed adequately of the risks and potential dangers of the con?ict
and to obtain the defendant's acknowledgment on the record that he understands this
information." Commonwealth v. Agbany0?69 Mass. App. Ct. 841, 845 (2007). The trialjudge
should indulge 6"every reasonable presumption against waiver?; of this right because 
undivided loyalty to the client is crucial to the integrity of the entire adversary system.?
golgman, 395 Mass. at 507. 508.

To ensure that a defendant is acting knowingly and voluntarily, the trial judge should
conduct a colloquy that meets the following substantive guidelines:

0 Informs the defendant of his ?constitutional right to an attorney who was free of
divided loyalties.? Martinez, 425 Mass. at 393; Agbanyo, 69 Mass. App. Ct. at
845; Commonwealth v. Desfonds, 32 Mass. App(1992).

Allows the defendant to understand or appreciate the possible implicatiOns Of the
conflict. Martinez, 425 Mass. at 393; Desfonds, 32 Mass. App. Ct. at 315.

Invites the defendant to raise or discuss any concerns. Agbanyg, 69 Mass. App.
Ct. at 845; see?, egg; Commonwealth v. Jeffrey Jones. 403 Mass. 279, 281 n. 2
(1988'). 7

Ensures that the defendant understands his questions and the issues. gee, 

Commonwealth v. Zabek, 86 Mass. App. Ct. 520, 528429 (2014) (asking the
defendant six times if he understood); Desfonds, 32 Mass. App. Ct. at 314 (?The

71

judge should appraise the background, education, experience, and-conduct of the
defendant in deciding whether the defendant is making an intelligent decision?)

Additionally, the judge should ensure that. the colloquy meets important structural
guidelines. Specifically, the judge should:

- Encourage the defendant and his counsel to discuss the conflict, or con?rm that
discussions have occurred. See, eg, Commonwealth v. Boateng, 438 Mass. 498,

509 n. 8 (2003); Jeffrey Jones, 403 Mass. at 281 n. 2.

- Question the defendant in a manner which evokes narrative responses, rather than
a series of ?yes? or ?no? answers.? Desfonds, 32 Mass. App. Ct. at 3 

- In appropriate circumstances, provide the defendant with independent counsel.
See, Agbanyg, 69 Mass. App. Ct. at 845; Mgtinez, 426 Mass. at 393.

The colloquy here failed to meet these substantive and structural guidelines. While the
trial judge spoke to Mr. .Jones after Elias made his statement, he undermined the message that
conflicts implicate important constitutional rights in two ways. First, he suggested'that Elias?
disclosure was merely a technicality:

It?s my obligation to bring it to your attention, as it was Mr. Elias? obligation,

that there is always a potential that a lawyer will not cross examine a client or a 

former client as vigorously as he would another person, at least some people

think that a lawyer might not do it. - 

 Tr.3/88: 5-8224 (Emphasis added). Second, he recounted some ofhis own experiences
cross?examining clients, reasonably suggesting to the eighteen year old Mr. Jones that there was
no reason for concern. 1d. (?[Ajnd I remember cross examining my Own clients in former cases
that I 7 

Moreover, unlike the extensive colloquies at issue in other cases, see, gg, M, 86
Mass. App. Ct. at 5284-30, the colloquy here was brief, and thejudge never told Mr. Jones that he
had a constitutional right to unimpaired assistance of counsel. ln Qbek, the judge restated the

nature of the con?ict at theoutset of the colloquy and explained the harm in three separate

questions. gee 86 Mass. App. Ct. at 528. Here, by contrast, the judge mentioned the, risks of a

72

conflict in one question that also minimized the harm he described. Thejudge?s
questions were structured to elicit only ?yes? or ?no? responses, and he never inquired whether
the lS-y-raiuold Mr. Jones fully understood the issue. Moreover, thejudge did not provide Jones
with independent counsel or invite him to raise any questions or concerns.

The failure to adequately advise Mr. Jones of his right to un?eon?icted counsel was
particularly problematic because Mr. Jones never had the opportunity to discuss the issue with

his lawyer privately. See And Elias? ?awed disclosure took place after the trial

 

was well underway, many months after Elias was assigned as counsel. As a result, he labored
under undisclosed con?icts during the entire trial preparation stage, in selecting a jury, and in
deciding that he would not object to having Smith remain in the courtroom despite a
sequestration order that appliedto every other witness.S4

For all of the above reasons, the colloquy fell woefully short of established guidelines
Considering that ?the right toleffective assistance of counsel is fundamental,? Ho_dgc,- 3816 Mass.
at 170. and that all presumptions Weight against accepting waiver of such a right,
Commonwealth v. Woolridge, 19 Mass. App. Ct. 162, 167 (1985), Mr. Jones cannot be. deemed
to have waived his right to tin?con?icted counsel based on Elias? misleading and incomplete

disclosure.

 

51 Prior to opening statements being given, the Court allowed a motion to sequester witnesses, Tr. 2/2254 1, but
granted an exception for Detective Smith. Smith, the lead investigator and a client ofElias, was
allowed to remain in the courtroom and observe the testimony of all other fact witnesses prior to taking the stand
himself. In tliejury selection process, the ADA represented that Smith would not play a major part in the case.

Tr. (?From my point of view, his testimony would not be that long or crucial, but 1 don?t know what Mr.
Elias has in store"). As it turned out, Smith was called to the stand to impeach the testimony of several witnesses
whom he saw testify, and he alsoprovided critical identi?cation evidence when Terie Starks did not make an in:
court identification. The issue ofhis credibility was very important, yet Mr. Elias did little to challenge Smith?s
testimony.

73

Nor should this Court ?nd that Mr. Jones has waived, though prior counsel?s failure to
present, his arguments that the representation of LaGarde by Elias or his associate constituted a
genuine con?ict of interest and that Elias? misleading disclosure prevented a knowing and
voluntary waiver. Failing to consider these arguments now would result in a substantial risk of
miscarriage of justice, particularly in light of the newly discovered evidence of tampering with
the Starks Videotape and the fact that Elias? misleading disclosure related, in signi?cant part, to
the two officers appearing on that tape. See Commonwealth v. Azar, 435 Mass. 675, 687 (2002)
(noting that a substantial risk of a miscarriage of ustice exists when there is a ?serious doubt
whether the result of the trial might have been different had the error not been made?).

I). Mr. Jones Was Deprived of his Constitutional Right to the Effective

Assistance of Counsel Because His Trial Attorney Failed to Engage in

Adequate Investigation, Failed to Present Available Proofs, and Failed to
Adequatelv Confront and Cross-Examine the Prosecution?s Witnesses.

Mr. Jones was deprived not only of his right to conflict~free counsel, but also of his right
under the state and federal constitutions to effective assistance of counsel. [11 order to prevail on
a claim of ineffective assistance of counsel, Mr. Jones must establish both that Elias?trial
perform-moo fell below the standard of an ?ordinary falliblc lawyer,? and that his missteps
deprived the defendant of "an otherwise available, substantial ground of defense,?
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), such that ?better work might have
accomplished something material for the defense.? Commonwealth v. Satter?eld, 373 Mass. 109,
15 (1977). See also, Strickland v. Washington, 466 US. 688, 690, 104 S. Ct. 2052 (1984).

The right to effective assiStaiice of Counsel includes a' duty bytcounsel toiadequately
prepare for triai by familiarizing.himself with the Commonwealth?s discovery file and examining

the evidence collected or created by the police. See, e. g, Commonwealth v. Alcide, 472 Mass.

 

150, 151 (20l5); Commonwealth v. Baran, 74 Mass. App. Ct. 256, 271?278 (2009) (granting

74

new trial"). It likewise embraces a duty by counsel to conduct an independent investigation and to
develop and present all meritorious defenses and favorable proofs, including expert testimony.
Commonwealth v. Egardo, 426 Mass. 48, 49?51 (l 997); Kimmelman v. Morrison, 477 US. 365,
373(1986)

In this case, trial counsel?s errors and shortcomings permeated every aspect of his
representation. A review of the trial record, discovery materials, and new information gleaned
from public records disclosures, court dockets-and Elias? BBO file reveals Elias to be an attorney
who was overwhelmed by his practice and failed to even review let alone master many of the
materials provided in discovery. In these regards, Mr. Jones? case bears a close resemblance to
Commonwealth v. Alcide, in which the recently vacated the defendant?s murder conviction
after tinding that counsel?s pervasive lack ?of trial preparation created a substantial likelihood ofa
miscarriage of justice. Lei.  15 In M, as here, defense counsel failed to familiarize himself
with the [Commonwealth?s discovery file, failed to examine evidence collected by the police,
failed to conduct any independent investigation, failed to present evidence supporting a third
party culprit defense, and failed to mount an effective challenge to the weak identification
evidence in the case.  Although the we case involved a consolidated appeal from the
defendant?s conviction and from the denial of his motion fOr a new trial, the result should be no
different in Mr. Jones? case because, if anything, the likelihood ofa miscarriage of justice is even
greater here.

1. Counsel Admitted in Bar Proceedings that his practice was out of
control at the time of Mr. Jones? trial.

Perhaps the most. compelling-evidence of Elias? ineffectiveness is sworn testimony he
gave in support of his 1993 petition for reinstatement to the bar. During that testimony, Elias

spoke frankly about his inability to provide effective assistance to his clients during the time

period he was representing Mr. Jones, admitting that he ?allowed [his] practice to get out of
control," providing ?a disservice, not only to [his] clients but to [him]self and family, by [his]
lack of attention and carelessness.? A340.
Elias? testimony made clear that his ?lack of attention and carelessness? culminated in the
year or two preceding his 1987 suspension, during which time he was representing Jones:
I had a very large practicedlt wasn?t as if I couldn?t do it It had grown so large on
me that 1 lost complete control of it. I had no idea What was going on. I know my
trial practice schedule, because you have one of these diaries, and your secretary
points you in the direction, and off you go. I would spend more time and I hate
to admit this, but i would spend more time going to a court to tell them why I
couldn?t come there, why I had to be somewhere else. I would get caught up in
constant arguments with judges, you?re staying here. you?re not going there. In

the last year or so, I just got so busy that I?m not sure I was functionng with
(m sense at all. .

A3 60?361 at 17-18 (Emphasis added). When asked for ?an example of the schedule? he kept,
Elias stated:

appeared befOre the S.J.C., superior court, probate court, and district court all in

the same day, just running around without any. particular control over what was

going on. The only one 1 gave my attendance to was the SJC. The rest of it was
just showing up, showing up. I Could]: ?t do a very good job ofit, and I didn 

A362 (Emphasis added).

I Eli'as?adrnissions provide a sobering assessment of how his handling of superior court
matters in the mid?1980s affected clients like Mr. Jones, and those admissions are consistent with
Mr. ones? reCollections, as recounted in his post?conviction af?davit. Mr. Jones recalls meeting
with Elias before trial on only a few occasions and spending no more than two?and?a-half hours
with Elias priorto trial. Elias? admissions are also corroborated by his time records
from Mr. Jones? case. From the moment he began representing Mr. Jones in December 1985
through the end of June 1986, Elias requested payment for only 37 hours, most of which

corresponds to days on which Elias was in court for a hearing-Compare A484 (Time Records)

76

and (docket). In that same six?month period, Elias categorized only four of those 37
hours as ?investigation,? the other 33 hours were coded as A484.
The trial record in Mr. Jones? case bears further out Elias? brutal self?assessment,
revealing numerous examples of poor preparation and inattention to important details.
2. The trial record is replete with examples of Elias? failure to pursue

viable avenues of investigation,-proof and cross?examination that
would likely have made a material impact on the case.

The list of Elias? failures to pursue avenues of investigation, proof, and cross?
examination is'extensive and, as in Alcide and Em, cumulatively created a substantial
likelihood ofa miscarriage ofjustice.

a. ailure?to Investigate, Develop or Present Exculpatory Evidence

The police 1?eCords in Mr. Jones? case included a number of exculpatory leads that Elias
failed to' investigate and present. I

Failure to Interview Mike BreWn andPresent Evidence
Based on Her Account 

[is part of its investigation, the Brockton Police Department interviewed an individual
named Miko Brown. A044 (Report of Diet. ohn Luciano dated 11/ 17/ 85): Brown told the
police that she was in with the victim (Mr. Rodrigues) for approximately two hours on the
night of the shooting, and that they left together through the front door. 1d. Brown stated that the
victim offered her a ride, and she refused. l_cl. The victim walked across the street to his car, and
Brown reportedly walked south towards Centre Street. Iii. Brown did not see or hear anything
until thenext day. id.

Brown?s _statement was exculpatory because it contradicted testimony offered by the.
prosecution that Rodrigues was seen being led out of the bar by a black male with a gun. Yet

Brown was never contacted by Elias or any investigator acting on Mr. Jones? behalf. See

77

AME-27 (Af?davit of Miko Brown). Had she been contacted, Brown would have con?rmed the
statement she gave to the Brockton police. Elias? failure to interview Brown and present
evidence based on her account was inexcusable; there could be no possible strategic reason for
failing to interview and present evidence from a witness who provided a statement to police that
contradicted the prosecution?s theory of the case.

(ii) Failure to Present Evidence that Another Person May
Have Been Responsible for the Offense

?Third?party culprit evidence is a time?honored method of defending against a criminal
charge? for which courts afford ?wide latitude.? Commonwealth v. Silva?Santia yo, 453 Mass.
782, 800~801 (2009). in this case, Detective Smith wrote a report identifying a second suspect,
Stevie Belts, ?whose. name has been mentionedseveral times as possibly being the one that did
the shooting.? A054 (emphasis added). Smith?s report indicates that on November 15, 1985 he
and State Police, Detective Peter Downey interviewed Betts? girlfriend, Joy Boone, who told
them that ?she had heard Steven might have been involved in the shooting.? Q.

As with Miko Brown, there is no evidence that Elias interviewed Boone, and Elias
indisputably failed to present any evidence that the police had identified Betts as a suspect. Elias?
failure to present this evidence was inexcusable, particularly light of the statement in Smith?s
report that Betts had been repeatedly mentioned as the possible shooter.

Smitih?sreport, written on or after November 15, could not be clearer as to?the state of the
investigation at that time just two days before Mr. ones?s arrest ?the only two names that
have been mentioned up to this point are ?Diamond? and Betts.? Yet Elias allowed the case to be
presented to the jury as ifthe police had focused solely-on Mr. Jones. if Elias had presented

evidence of the second suspect, whether through Boone or otherwiSe, this approach could well

78

have resulted in a different outcome. After all, even without any evidence of an alternative
suspect, the jury struggled to reach a unanimous verdict.

Moreover, there was even more evidence suggesting that someone else might have been
responsible for the shooting. Speci?cally, Smith?s report recounts that he and LaGarde went to
the apartment of Denise Bradshaw. whom they had been told was the girlfriend of Jones.
. According to the report, which is corroborated by the LaGarde Memo, Bradshaw told the
of?cers that no one was in the apartment, but upon searching it, the of?cers found a black male
named Donald Houston hiding in the closet. id. Houston, who reportedly went by the nickname
?Deke,? refused to accompany Smith and LaGarde back to the station for questioning and ?could
give no explanation  to why he was hiding in the closet.? While Houston?s conduct, by itself.
does not?prove that he was involved in the shooting, it was a red ?ag, and Elias could have used
the incident to cast doubt on the police of?ceris? conclusion that Mr. Jones was the shooter.55

7' Failure to Contrast Eyewitnesses Testimony That
Shooter Was Significantly Shorterthan Victim with
Evidence that Messrs. Jones and Rodrigues Were
Roughly the Same Height

As describedabove, the Commonwealth?s case against Mr. Jones rested entirely on
eyewitness identiticatirm. While the eyewitnesses were unable to get a good look at the shooter?s

face,Sh several, testified. that they saw the shooter and the victim standing side?by?side and that the

 

55 Elias? failure to?present this evidence is particularly troubling'because the poliCe reports show confusion on the
part of at least one witness as to whether Mr. Jones was known by the nickname ?Diamond? or ?Deke.? See sepia,
pp. l2, 56- 68, This confusion about whether Mr. Jones was known as ?Diamond?_ or ?Deke? should have been
presented to the jury because one ofthe key pieces ofthe Commonwealth?s case was that someone in Watson?s car
said "that?s Diamond," upon seeing the victim being led into the parking lot at gunpoint.  septa, pp. lO?l l.

livery witness who police alleged picked out a photograph of Mr. Jones testi?ed that they had either a limited
view otthe shooter, or no view at all. See,  (Perkins: only ?got a quick glimpse? ot?the black male,
who was ?soitoflike behind [the (Paul Jones: was not able to see the shooter?s face);
(Starks: did not make any observations ofthe shooter beforerhe ran; seen him for a second, he was
gone"); 15?16 (Pina: unable to describe either the shooter or the victim; ?Could I describe them? Dark

79

victim was considerably taller than the shooter. gee A545 (chart summarizing height
differential).

Remarkably. Elias failed to establish that the victim was only one inch taller than Mr.
Jones. Compare A205 (Mr. Jones? booking sheet, listing his height as with A037
(LaGarde?s summary of autopsy, listing Mr. Rodrigues? height as It appears likely that this
failure was the result of Elias? acknowledged failure to read the autopsy? summary, the only
document that listed the victim?s height. _S_ee (Elias: ?l have never seen the autopsy
or ballistics report. I didn?t care about those. . .  (Emphasis added.) In any event, because
eyewitnesses consistently testified that the victim was much taller than the shooter. Elias should
have established that Messrs. ones and Rodrigues were essentially the same height. His failure
to do so was likely a real factor in the jury?s verdict.

b. Failure to Challenge Inculpatory Evidence

in  the SIC observed that the ?other side of the evidentiary ledger, namely the
evidence ofthe defendant?s guilt. also could have looked different if the defendant had received
reasonably effective assistance from his counsel.? Aggie, 472 Mass. at l64. The same is true
here. particularly with regard to Elias? handling of his cross?examination of Starks and of the
admission of the Starks Videotape.

As discussed above. defense counsel conducted a very limited cross examination of
Starks when she testi tied on the second day of trial. reserving his right to Continue the
examination ifthe judge admitted her videotaped interview. jig/501861 :21. At 9:00 AM on the

last day of trial, after the jury had seen the video, Elias attempted to re?call Starks. 

 

clothes; it was dark outside. I wasn?t studying them?); 1 1 (Levine: did not see the shooter?s face; saw
him only briefly as he ran up Ward Street)._ 

so,

When it became clear that she was not yet at court, the judge announced that court would be in
recess until she arrived by prison transportation. id. at 4:20?23. However. after only a very short
recess, at 9:35 am, Elias announced without explanation that the defendant restedthe time of her testimony, Starks was being held without bail in Framingham.
53:1 1?54: 1. Smith arrested Starks on a default warrant on September 16, and she was held
on $50000 bail. A445 (Broekton Enterprise, 9/ 18/ 86, ?Prostitution suspect held without bail?).
in a bid to reduce bail, Starks went before Judge Byron in the Superior Court on a bail review the
lollowing day, and he ordered her held without bail. Lei.

When she testified on September 23, Starks did not make an in?court identi?cation of
Jones, but she did testify that she had picked out a photograph when she was questioned by
Detective Smith at the Bro'ckton Police Station. Elias conducted a briercross?examination that
takes up less than a single transcript page. Starks con?rmed that she did not  ?that?s
Diamond? in the car the night of the shooting and established that: it was raining at the time of
the shooting. Trail/50:86 Elias knew before Starks took the stand that she had several
pending criminal matters. (remarking that ?she has seven defaults and [is]
supposelfd] to be there today? and that ?there is  question she was arrested twice by Joe
Smitl'iH the first time to get the videotape?). When the Court suggested that these issues should 
be addressed at a later time, Elias agreed, indicating he would raise them on cross?examination.
361248726. I?lowever, when it came time to cross?examine Starks, Elias failed toipursue the
issue of Starks? pending charges or whether she felt any pressure or coaching while in police
custody. This was an important line of questioning that could only have helped .tones? case, and

Elias? failure to pursue it was unreasonable.

81

New information has come to light that con?rms the state of Starks? criminal history at
the time ofher interview and trial testimony and highlights the prejudice caused by Elias?
inaction. Several years after testifying in Jones? case, Starks was called as a witness in
Commonwealth George A. Lones, Plymouth case No: 89135-37. There, as a witness for the
prosecution, she was cross?examined by defense counsel, who confronted her with a series of
convictions for being a ?common night walker.? Four of those convictions arose from charges
that were pending at the time of.lones"? trial. (Lopes transcript) (noting charges on
November 2, 1984, December 16, 1984, November 19, 1985, and September 24, 1986).57 At
least three of these charges were pending on November 26, 1985, the date that the police
conducted the recorded interview of Starks. Accordingly, Starks would have had a motive to
please the Commonwealth in exchange for a favorable reSolution of the charges. See
ngrnonwgegit?li v. ,1;l_er_i_sp_r_i_, 394 Mass. 584, 587 (1985) (?The possibility that a prosecution
witness is hoping for favorable treatment on a pending criminal charge is sufficient to justify
inquiry concerning bias. . Once'again, Elias should have brought this out on cross?
examination, and his failure to do. so was unreasonable.

As discuSSed above, the LaGarde Memo appears to have been withheld by the
Commonwealth. i-lowever, even assuming that the Commonwealth could establiSh the ADA
provided l-Fllias with a copy of the Memo, his failure to utilize this document to cross-eXamine
Starks with her priorinconsistentstatement about the path allegedly-taken by Rodrigues and the

assailant from deprived Mr. Jones of his right to effective assistance of counsel. According

 

 The reference in the Lopes transcript to an offense date of September 24, 1986 may be a typographical "error
because: that was the day after she testified in Mr. Jones? trial, (ii) Starks appears from the trial transcript to have
been in custody at that time. and she had a conviction arising from an incident that took place on September 24,
1984. However, discovery on this issue is nevertheless appropriate to confirm that the Commonwealth did not
release Starks immediately after testifying against Mr. Jones, thus making her unavailable.

82

to the LaGarde Memo, Starks told LaGarde and Smith that the two men ?had come from behind
Pete and Mary?s and around from behind the body shop on Montello Street.? A035. Had the
men taken that route, they would have crossed Montello Street by the intersection with Ward
Street. A443 (map). Starks? trial testimony was completely inconsistent with that statement; from
the stand. Starks said that she first observed the two men on the corner of Montello and Franklin
Streets. a full block away from Ward Street. 

This inconsistency was signi?cant. The prosecution?s theory of the case was that the
shooter left with Rodrigues via the front door, crossed Montello Street with him at gunpoint, and
was pushing him towards the back of D?Angelo?s when he fired the gun. That theory is not
plausible if the two men in fact came from behind the body shop. If Elias had elicited that
testimony from Starks. it likely could have made a difference in the outcome, particularly where,
as here, the jury reported to the judge that they could not reach a unanimous verdict. 
Commonwealth v. Lockley, 381 MaSs. 156, 163 1980) (noting that ury?is difficulty in deciding
the case was a factor supporting defendant?s request for relief). I

Because Elias never discussed with Mr. ones his decision to call off the reexamination
ol' Starks. one can only wonder why Elias decided only 35 minutes after re?calling Starks to the
stand not to pursue further cross?examination. Elias? reversal ofhis decision to re?call Starks is
all the more troubling in light of his newly?discovered admissions to the Board of Bar Overseers.
in sworn testimony, Elias stated that, during the period of time he was representing Mr. ones,
his practice ?had grown so large on [him] that [he] lost complete control of it,? and that he would
"spend more time going to acourt to tell them why [he] Couldn?t be there, why [he] had to be
someWhere else.? iA360?361 . "Therewrd suggests that on the same day Elias dropped his plan to

reaelross Starks, he needed to leave court to deal with other matters. After the jurors were

83

instructed and began their deliberations, just afew hours after Elias attempted to re?call Starks,
Elias asked the judge ?do we have to stand by,? requesting to ?leave for a little while.?
The surprising reversal of Elias? decision to re?call Starks, combined with his
admissions to the Board of Bar Overseers, raises the troubling possibility that the reversal was

driven bx Elias? competing demands.

a
1


c. Additional Examples of Ine?ectiveness
aiiure to Develop Facts Referenced in Opening

 

Elias gave a brief opening statement in which he made only a few comments about what
the evidence would show. in those comments, he focused almost exclusively on the failure of
Paul Jones and Denise Perkins to identify Mr. Jones when they looked into the crowd gathered
outside of Prick/latter the shooting. Speci?cally, Elias previewed two key pieces of evidence
regarding Perkins and Jones? failure to identify Mr. Jones at that time: (1) testimony from ?the
?rst officer on the scene? that Mr. Jones was among the people who came-out of when he
arrived, and (2) testimony that Mr. Jones spoke to Denise Perkins and Paul Jones at the scene.
'l?i-Qi?l C): 14?25. Elias failed to elicit testimony on these points, thereby doubly undermining Mr.
Jones? defense. See, Commonwealth v. McMahon, 443 Mass. 409, 425 (2005) (recognizing
that ?failure to present critical evidence that has been announced in an opening statement can
have drastic 

As the SJC has recognized, there is, in any opening statement, a risk that the promised
evidence will not materializefld. However, the decision whether to make an opening statement
and. it? so. what details to include. is a Strategic decision that must be made with adequate
preparation, competency, and attention. Here, Elias told the jury that it would hear from the
??rst officer on the scene,? Coiocousis, information that Would undermine the Commonwealth?s

theory of the case. Additionally, although he did not tell the jury which witness would say so,

8.4

Elias said that someone would testify that Mr. Jones spoke to Perkins and Paul Jones at the
scene, once again undermining the Commonwealth?s case.

1 loweveri l'ilias tailed to develop the predicted testimony. direct examination,
Coloeousis testi?ed that, after speaking to Perkins and Jones, he crossed the street and saw
?several people coming out of the bar? who were ?on the sidewalk in front of the bar.? 7
Colocousis ?spoke in general to all of them and asked them if they had seen
anything or heard anything.? l_d. at 81:2?3. This testimony opened the door to cross~examination
regarding whether Mr Jones was among the patrons whom Colocousis saw or spoke to, but Elias
failed to pursue that line of questioning.

instead, apparently realizing that he forgot to get the crucial testimony from Colocousis,
he raised it with Of?cer Shanks, the second of?cer on the scene; who took the stand immediately
after Colocousis only to make matters worse. While Shanks testi?ed that he saw Mr. Jones
leave the front door of 12520?22, Within approximately 25 minutes of his arriving on
the scene,  at 134gthis t?ell tar shortof What Elias predicted: ?you will get from the . . . ?rst
of?cer on the scene, that amongst the people who came out of Pete and Mary?s-when he arrived
there to investigate was Darrell ones.? Worse, hon/ever, was Elia's? "failed attempt to obtain from
Of?cer Shanks an admission that Mr. Jones spoke to Perkins and Jones. Elias asked, ?You?re
saying that [Mr. Jones and two companions] did not talk to Paul Jones and Denise Perkins at that
scene?" Shanks responded, ?No, they didn?t.? 1g. Elias then reinforced his

mistake by repeating the question. and by receiving the same respOnse:

Q: Are you sure that Darrell Jones . . . did not talk to Paul Jones?
A I?m positive of that.

Q: In your presence?

A I?m positive ofthat. -

Q: You don?t remember asking them were you a witness and Paul Jones replied
unfortunately, yes?

A: No, I don't remember that.
After this, Elias did not ask Perkins or Jones whether Mr. Jones Spoke to them at
the scene, and he never called Sergeant Colocousis back to the stand to deliver the testimony he
told the jury it would hear.
This is not a situation where Elias? failure to produce the evidence promised was ?a

decision forced upon him by events over which he had no control.? See, eg, Congnonwealtmh v.

 

?agdvone, 406 Mass. 123, 127 (1989); Mim?, 443 Mass. at 425. To the contrary, this was a
situation where Elias simply failed to deliver on the promises he made in his opening. In doing
so, Elias provided constitutionally deficient assistance.
(ii) Failure to Highlight Exculpatorv Evidence in Closing

Similarly, Elias failed to deliver an effective closing argument. As discussed above, he
failed to. develop and present evidence that Mr. Jones was virtually the same height as the victim
and, therefore, could not have been the shooter. ?In addition, Elias failed to highlight exculpatory
evidencethat was developed at trial, including the disparities between the descriptions of
clothing worn by Mr. Jones and the shooter. Several witnesses testi?ed that, on the night of the
shooting, Mr. Jones wore light colored jeans, a short jacket, and a hat turned backwards. See.
(Anderson trial testimony); Tr.5/ 109:3?7 (Dukes trial testimony);
:9??25 (Struthers trial testimony); GJ067.1 (Struthers grand jury testimony). By contrast,
the shooter was described by Paul Jones, who pursued the shooter in his car after the shooting, as
wearing a long coat and dark pants. Tr.3/50: 1 0?12 (Paul Jones trial testimony). None of the
fact witnesses testified that the shooter had on a hat. Elias failed to mention these critical

differences in his closing argument.

86

Instead, liilias framed the argument in such a way that it pitted the word of the fact
witnesses against the word of the police. SE 3 government has paraded up a
number of witnesses before you. and said, ?Now, don?t believe Instead, they want you to
believe police of?cers who went there a week or two and said, oh, yeah they identi?ed
the guy even though the witnesses said I did not?). Tr.6/l 524-169 (?Detective Smith
goes out and he  i said to these people pick them out and [they] picked them out, and they
said, no way, it didn?t happen. hey said it under oath twice. Are you going to assume all these
people came here to perjure themselves. . Worse, he did so after suggesting to the jury that
the witnesses were less upstanding members of society than the members of theiury. 
1. (?Really, what are we doing?? Jury ofpeers? God knows none of you are his peer.

You?re not the peer of 90 percent of the witnesses you saw up here?). Serialsg 

 

(?It?s a Monday night: and it seems that this whole community was in a bar, Pete Mary?s. Well,
that-may not sit with your lifestyle. But we?re not-here testing the lifestyle?).

Having set the closing argument up in this way, it was critical for Elias to demonstrate
the Officers? bias and failure to conduct a thorough investigation, but as discussed above, Elias
never developed this evidence. And even when he tried to discredit the police investigation,
suggesting incorrectly that LaGarde testi?ed he only showed an array to Perkins on one
occasmn. he got confused about the facts and failed to provide any basis for thejury to credit the
word-ofthe ?fcommunity  in a bar?. over the word ofthe police. S_ee (?i?Detective
lLaGarde goes out and shows photographs to people, he doesn?ttremember doing it twice. I
suggest to you he'went to Denise [Perkins] once  and he went back again. . Had Elias I
presented a closing argument that focused on demonstrable evidence of key differences between

Mr. .lones and the shooter, the outcome in this case could have been much different.

87

 Refusal to Allow Jones to Sit at Counsel?s Table and
Participate in His Own Defense

Although Mr. Jones? prior new trial motion relied in part on Elias? decision to require Mr.
Jones to sit in the prisoner dock, the newly discovery evidence presented in this motion
necessitates a reexamination of the ways in which Mr. Jones was prejudiced by this decision. it is
undisputed that l?ilias made the unilateral decision to have Mr. Jones sit in the prisoner dock for
the entire trial and that he made this decision without discussing with Mn] ones how this seating
arrangement could impact his defense. At the very least, the seating arrangement posed a ri of
suggesting to the jury that: Elias felt uncomfortable or threatened sitting next to Mr. Jones,
who stood accused of murder. (2) Elias did not believe Mr. Jones or value his contributions, and
there fore did not want him to participate in trial strategy, and (3) Elias believed Mr. Jones was
guilty and wanted to distance himself from Jones as. much as possible.

Even more signi?cantly, in light of the newly discovered evidence concerning the altered
video, requiring Mr. Jones to sit in the prisoner dock prevented him from conferring with Elias
while court was in session, suggesting lines of cross examination, or even seeing the
Commonwealth?s most important evidence against him. In particular, Mr. Jones recounts-that the
seating arrangement the dock was about ten feet from counsel?s table -- made it impossible for
him to communicate with Elias about witness testimony that was either untrue or needed to be
eXplainedor contrasted with past witness statements. On numerbus occasions, Jones wanted to
get Elias? ?attention but refrained from doing so because he did not want to appear ?excited? (as
Elias warned the jury defendants sometimes would become). Even worse, Mr. Jones recounts
that when an exhibit Was handed to Elias, he did not show it to Mr. Jones, and from where Mr.

Jones was sitting he was unable to see key evidence, including the Starks Videotape.

'8 8

Elias mentioned that Mr. Jones would sit in the prisoners dock during his opening
statement, but, if anything, Elias?s statement made things worse:

I have a choice of having the defendant sit up at counsel table with me or having

him sit there. The election is purely mine. I?m here. I like to be alone: I don?t want

to be distracted. A defendant sometimes gets excited by what?s going on by

testimony. Don?t draw any conclusions because he?s there and I?m here. That?s

my choice, and I elected to do it in that fashion.
Tr. 9/23/86, at 20:1 8. The statement made things worse because it reasonably implied that
Elias chose not to have Mr. Jones sit with him because he expected that the testimony would
excite Mr. Jones, causing him to try to communicate with him. The jury could reasonably have
interpreted Elias? statement as indicating that he did not want Mr. Jones to communicate with
him because he did not value Jones? contributions, which in turn could have created the

impression that Elias did not believe his own client.

(iv) Failure to Protect Mr. Jones? Due Process Rights at the
View

While a criminal defendant does not have an absolute constitutionalright to be present at
a view. the particular circumstances of a view may deny the defendant a fair proceeding and due
process of law. Commonwealth v. Gomes, 459 Mass. 194, 199 (2011). Views are not: intended to
be opportunities for counsel to ?speak to the jury? concerning evidence; to the contrary, the only
type of view held to be constitutionally permissible in the defendant?s absence is one in which
counsel merely point out particular features of the scene and to request the jury to observe them.
Id. (internal citations omitted).
?Elias went, beyond these accepted rules and, in the process, affirmatively presented a

characterization of the Commonwealth?s case that was not only wrong, but that glossed over a

key weakness in the Commonwealth?s case, thereby undermining Mr. Jones? defense.

89

Specifically. Elias made the following comment regarding the route the assailant allegedly took
when he ran away from the scene of the shooting:

I think, let me correct, when said we?ll go up Franklin, we will, because it?s one

way that way. but you will get some testimony that the perpetrator of the crime

ran up this street, went over either a fence or a wall onto Franklin Street and then
continued up Franklin Street to the Colonial Spa.

Tr. 9/22/86 at 5869. When Elias told the jury that it would hear testimony that the perpetrator
?continued up Franklin Street to the Colonial Spa,? he was wrong. No witness provided such
testimony. Denise Perkins and Paul-J ones testi?ed that they chased the assailant up Ward Street,
where they saw him out through a parking lot behind an auto body shop next to and then
jump a fence at the Cablevision Building on the corner of Franklin and Main. Tr.3/15 (Perkins),
52 (Jones); A443 (Map). None of the eyewitnesses even mentioned Colonial Spa.

Elias should have known that the Colonial Spa was the location where the murder
weapon was allegedly recovered and thatthere was no testimony connecting the defendant to
that location; In fact, the only testimony regarding Colonial Spa was the testimony of
Kanicholas, who said that he recalled seeing a ?black guy in the place? and. in his own words. 
don?t have too many black guys come in the bar as a rule.? Other than the fact that
the man was black, Kanicholas ?didn?t notice anythingelse in particular about him,? including
whether he went to the men?s restroom, and he never identi?ed Mr. Jones as the person he saw.
 at 46.

Elias? comment played right into the Commonwealth?s theory of the case. he
Commonwealth argued in closing that after jumping the fence at the Cablevision building, the
defendant made his way over to Colonial Spa, threw his gunaway in the men?s room, then ?ran
down Ward Street, went in the back of Pete Mary?s Barroom, picked up his sub and sat

dewn,? all in an elaborate plan to be ready with an alibi ?when the police came looking for him.

90

for someone.? Tho/2425. Given the utter lack of evidence connecting the defendant to the
Colonial Spa, Eliasi statement at the view was highly prejudicial and very likely in?uenced the
jury?s deliberation, resulting in substantial harm to the defendant.

E. Mr. Jones Was Deprived Of His Right To Due Process, and Justice May Not

Have Been Done, Because His Conviction Was Based On Unreliable and
Unnecessarin Suggestive Identi?cation Evidence.

The SJ has long recognized that eyewitness identi?cation of a person whom the witness
has never seen presents a ?substantial risk of misidenti?cation and increases the chance ofa
conviction of an innocent defendant.? CommonWealth v?Jones, 423 Mass. 99, 109, 666 
994 (1996). ?Iebe Commonwealth v. Johnson, 420 Mass. 458, 465, 650 1257 (1995)
(?mistaken identi?cation is believed widely to be the primary cause of erroneous convictions?).
S_e_e also Commonwealth v. Silva?Santiago, 453 Mass. 782, 790-791, 793?797 (2009) (describing
procedures that are designed to reduce false identifications). Since Mr. Jones? conviction,
concerns about inisidentification have only grown, and the widely?held ?belief? that mistaken
identi?cation is the primary cause of erroneous convictions (as-expressed by the SJ in Johnson)

has been borne out and is now acc?e?ptedas fact. Twenty??ve years after Mr. Jones? conviction,

 

the SJC stated in Commonwealth Walker that ?eyewitness identi?cation is the greatest source
of wrongful conviction.? 460 Mass. 590, 604, n.16 (201 1).

I With this understanding has come changes in the way'Courts new approach eyewitness
identi?cation evidence. The has embraced the developing social science research
demonstrating  perilsof misidenti?cation and has begun to reform the police and courtroom
prOethdures designed to address the'Se perils. in Walker, 460 Mass. at 604, n. 16, the SJC noted

that it would ?convene a study committee to consider new we can best deter unnecessarily

suggestive procedures? and otherwise minimize the risks of wrongful conviction based on

91

misidenti?cation. ?1.58 Two years later, the committee published its ?ndings and
recommendations. Supreme Judicial Court Study Group on Eyewitness Evidence: Report
and Recerendafioris to the Justices Study") available at
gov/courts/docs/sj 3 .pdf. The speci?c
concerns raised by the SJ Study demonstrate that the identitiCation procedures used to obtain
Mr. ones? conviction created a significant risk of wrongful conviction.

This Court may properly consider, the recent scientific censensus on

factors affecting the reliability of identi?cation evidence in assessing
whether ?justice was done? in Mr. Jones? case.

The Court has recognized that due process considerations arising under Article 12 of the
Declaration of Rights guarantee a defendant ?a certain basic standard of fairness? in
identi?cation procedures. Commonwealth v. Dougan, 377 Mass. 303, 316 (1979). As our
understanding of the risks of misidenti?cation has developed, the requirements of a?basic
standard Or fairness? have likewise evolved. has now acknowledged the merits of the
accumulated insight of the scienti?c research embodied in the SJ Study, and has begun to craft
safeguards to'foster more reliable protocols for identi?cations, for admitting evidence, and for
instructing juries. ?g Commonwealth v. Crayton, 470 Mass. 228, 241?242 (2014) and
Commonwealth v. Collins, 470 Mass 255, 265 (2014) (dramatically reforming the treatment of
in?court identi?cation evidence to align with social science prinCiples); a_l_s_g,
Commonwealth v. Gomes, 470 Mass. 352, 359 (2015) (recognizing certainprinciples of

eyewitness identi?cation that have reached a point of general scienti?c consensus);

 

58 in noting that such a study committee wouid be convened the Court recognized that ?research regarding
eyewitness identification is complex and evolving.? id, 460 Mass. at 604. n. 't 6. The Court also mentioned that it
had reviewed empirical research, including a number otschotarly papers that have focused attention upon the high
rate ot't?alse identi?cations. 1d,, 601?603.

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Commonwealth v. Bastaldo, 472 Mass. 16 (2015) (presumptively requiring cross?racial
instruction unless parties agree issue is not present).

While the speci?c safeguards and instructions identified in Crayton, Collins, Gomes, and

 

l?taldg are required only on a prospective basis, this court is not foreclosed from considering
the advancements in understanding of eyewitness perception and procedures that have occurred
over the past three decades. To do so would be to turn a blind to injustice. This is not merely
a case of witnesses making observations under what are now known to be unreliable
circumstances and then undergoing identi?cation procedures known to exacerbate the risk of
misidenti?cation. On the contrary, we now know that the officers responsible for these
identification procedures altered and concealed evidence and were represented by Mr. Jones 
atmmey. This facts of this Case are sufficiently unique and egregious that ensuring a ?basic
standard of fairness? demands the re?evaluationof those procedures in light of what we now
know based on developments in the science of eyewitness perception.

Signi?cantly? the SJ has been willing to grant post?conviction relief based on rules
intended to apply prospectively in Other contexts where, as here, there was a compelling and
narrow?hasis for doing so. For example, in Commonwealth Adiutant, 443 Mass. 649, 664
(2005), the SIC announced a rule permitting specific evidence of ?prior violent conduct? to he
admitted in evidence where the ?identity of the first aggressor is in dispute and the victim has a
history of violence." The rule was to be applied ?only prospectively.? E. at 667. Thereafter, in
Commonwealth v. Pring?Wilson, 448 Mass. 718 (2007), a motion for post?conviction relief was
filed based upon the principles announced in Adjutant. Although Pring-Wilson?s case was tried

before fidjutant was decided, the Superior Court granted a new trial after finding that in view of

93

the concerns recognized in Adjutant, ?the integrity of the defendant?s trial was compromised.?
thing?Wilson, 448 Mass. at 720.

As the SJC noted in  Rule 30 requires the trial court to engage in a case by case
analysis of whether ?justice may not have been done,? considering questions of ?fundamental
fairness? to determinewhether the defendant received a fair trial. Brescia, 471 Mass. at 390.
Under the unique circumstances of this case, which include not only numerous vulnerabilities in
the identification evidence but also evidence ofserious police misconduct and counsel burdened
by serious conflicts of interest, this Court can and should consider recent consensus principles
concerning the reliability of identi?cation evidence in determining whether ?justice was done? in
Mr. Jones case.  eg, Brescia, 471 Mass. at 389-390.

2i The identi?cation evidence in Mr. Jones? case is infected with

virtually all of the system level and estimator variables now known to
contribute to mistaken identifications.

The SJC Study identi?es a Series of ?system? and ?estimator? variables that are known to
increase the likelihood Of a false or mistaken identi?cation. variables? are those factors
that; the criminal justice system Can in?uence, typically involving the actions of the police (egg,
feedback and methods of eliciting initial information). ?Estimator variables? are those factors that
are inherent in the event such as the environmental conditions at the time'and the
characteristics of the Witness and the perpetrator over which the criminal justice system has no
control but that may have a substantial effect on the reliability of the identification.? Study
Group Report'at 2. Examples of ?system? variables include: (1) whether the police or other
witnesses give Confirmatory feedback to a witness; (2) whether theindividual administering an
identification procedure knows the identity of the suspect and ?whether the suspect is included in
the array/lineup; whether the array or lineup includes an adequate number of ?tillers,? or none

suspects who are not known to the witness; (4) Whether the witness receives proper limiting

94

instructions, including that the suspect may or may not be present in the array/line-up; (5)
whether the witness is required to undergo more than one identification procedure. Examples of
?estimator variables? include: (1) quality of viewing opportunity (duration, lighting); (2) degree
of stress on witness at time of viewing; (3) the presence of a visible weapon; and (4) racial/ethnic
background of witness as compared to suspect.

In 2015, Mr. Jones secured the assistance of Tufts University Professor
Samuel L. Sommers to evaluate the eyewitness evidence in his case in light of the SJC Report
and consensus social science research. Professor Sommersfound that numerous of the system
and estimator variables recognized by the SJ Study Group and highlighted in subsequent
appellate decisions are present in Mr. Jones? case and should bear on anyassessment of the
reliability of the eyewitness evidence. See Sommers Af?davit.

Estimator variables. Professor Sommers highlighted the following estimator variables
as being present and properly bearing on this Court?s assessment of the quality and reliability of
the eyewitness evidence, all of which are described in greater detail in his?afi'idavit:

- CrossQracial identification by Denise Perkins and Paul Jones, both of whom are
white.

0 Limited opportunity to observe, due to the brevity and pace ofthe event,
distance, and lighting conditions. 

0 Presence of a weapon, as noted by multiple witnesses.

- High?stress nature of encounter, as acknowledged by all.

Weapon focus. Several of the witnesses referenced the presence of a ?rearm, a
factor widely known to undermine a witness?s ability to accurately perceive

events. -

I Stressful event. There is little dispute that an unexpected shooting constitutes a
stressful event, and that this factor was present in the case.

95

System variables. Professor Sommers also notes the presence of a. ?wide array? of
system-level risk factors in Mr. lones? case. These variables, and the witness testimony that
substantiates their presence. are described in detail in his af?davit and are summarized only
briefly here:

- whack. The selective use of ?feedback? Was unquestionably a hallmark of the
investigation in this case, permeating all of the police interactions with
eyewitnesses. l? or example, alter Denise Perkins narrowed down a group of
photos to ones most similar to the shooter, LaGarde told her, ?you?re doing pretty
good; he?s in there.? Tr.3/37: 14?16. Similarly, when Lisa Pina selected a
photograph even while continuing to insist she didn?t get a look at the perpetrator,
Smith con?rmed that she ?picked out the right one.? AFF224. Most egregiously,
the police made sure that Terie Starks knew that Darrell Jones had already been
arrested before they asked her to select a photograph, AF F201, Al? 
conduct that was tantamount to instructing Starks: ?Mr. Jones is the shooter. Pick
out his picture.?

0 Blind Administration: Contrary to current recommended practice, the of?cers
responsiblefor every identi?cation procedure were deeply involved in the
investigation and knew exactly which photograph was the ?suspect? and which
were ??llers.? Not only did they have this knowledge, but their comments to the
witnesses revealed this knowledge, thereby exacerbating the risk that
eyewitnesses would feel pressure to make a selection and would be drawn to a
particular photograph as a result of the of?cers? prior knowledge of the suSpeet.

0 Construction of the Photo Array Line Up:60 Although modern social science
recommends that arrays include at least five tillers, or nop?sUspects who are not

 

Sq In a portion of the Starks Videotape that was net played for thejury the following exchange occurred during a
discussion about Mr. Jones: . .

Detective LaGarde: You know that at this time, he is under arrest? You?ve heard that?
Starks: Yeah, he told me iast night that he was under arrest. . . .

A 1000.! (sixth clip), A543 (transcript of Starks Videotape).

"0 Postvconviction counsel have repeatedlyasked the Commonwealth for access to the trial exhibits, which should
include the photo were shown to witnesses. (Barter Aft). The Commonwealth's position is
that they will not allow counsel to see any exhibits until a court order is issue requiring them to do so. 
Supplied herewith are poor quality phOtocopies of photographs that are described as photo arrays which the defense
has obtained from the Brockton Police Department pursuant to Public Records Act requests. The
defense has requested that this Court order the District Attorney to provide access to exhibits, including
photographs, so the arguments relating to identi?cation issues may be refined with the bene?t ofthe actual
photographs. gee Defendant?s Motion for Post-conviction Discovery, ?led herewith.

96

known to the eyewitness, the arrays in Mr. Jones? case contained multiple fillers

who were well known to eyewitnesses, including friends and neighbors. 
263 (Jones Aff.) 

Cautionary instructions: The dramatic contrast between the instructions now
recommended for identi?cation procedures and the manner in which Terie Starks
was instructed prior to make an identi?cation can and should bear on this Court?s
assessment of the quality and reliability ofher subsequent identification. Instead
of telling Starks that the ?alleged wrongdoerthe array,
Smith directly implied that the wrongdoer was there in the array, that they knew
who he was, and they just needed her to pick him out, telling her ?I?m going to
lay down some color photographs, and all I?d like you to do is pick out the man
who you saw coming across the street with the Puerto Rican or the Cuban.?
A1000 (Starks Videotape); A1000.l (fourth clip); A531 (transcript of Starks
Videotape). Particularly where'Starks had already been told that Mr. Jones was
under arrest, the above statement ran afoul of nearly every accepted instruction
protocol and greatly exacerbated the danger of a misidentification.

Use of Simultaneous Photo Arrays: While sequential procedures were not yet in
use at the time oflVIr. Jones? investigation, this Court may nevertheless consider
that all five of the eyewitnesses asked to make identifications were shown a
simultaneous set of photographs from which they were asked to make a selection.
A1000 (Starks Videotape); se_e m, pp. 13?24.

Repeat/Multiple Identi?cation Procedures: Several of the witnesses in this
case, including Denise Perkins, Paul Jones, and Lisa Pina, were subjected to
multiple identification procedures involving Mr.Jones? photograph, another
factor now known to exacerbate the likelihood of a false identi?cation.

in the decades since Mr. Jones? trial, the'SJC has recognized the above estimator and

system level factors as contributing to mistaken identifications and taken several dramatic steps

to ensure that police and courtroom treatment of identi?cation evidence conforms with modern

consensus scientific principles that govern our-understanding of human memory. In this case,

witnesses made observations under conditions now widely known to contribute to error, and the

police then engaged in a wide array of practices that have since been discredited by scienti?c

research and case law. The Courtmay properly consider these factors in light of the numerous

other errors identi?ed in this motion, because they unquestionably bear on the reliability of the

evidence used to convict Mr. Jones.

97

Moreover. the risk of mistaken identi?cation in Mr. Jones? case stems not only from a
lack ol?policc adherence to what are now recognized to be best practices. but also From the fact
that the one detail on which there was total consensus that the shooter was signi?cantly shorter
than the victim does not match Mr. Jones, who was six feet tall and only one inch. shorter
than the victim. Using this one benchmark, which emerged without police suggestion and was
necessarily less vulnerable to error than observations of facial characteristics, Mr. Jones should
have been eliminated asxaisuspect?l Instead, through a series of suggestive interviews with
witnesses, and with the passage of time, this critically important piece of information about the
noticeable height disparity was not: even mentioned at the trial.

When all of the identi?cation evidence is considered in light of currently known
scienti?c and judicially recognized principles, this Court should conclude that ?justice may not
have been done" and a new trial should be erased. Rule 30(b) Mass. R. crim; P. 
Cloninionwcalt'h v. Brescia. 471 Mass. at 389?390.

VI. Qonclusion 7
i i In light of the numerous troubling issues pre'sent?in Mr. ones? case, it is abundantly clear
that ?justice may not, have been done.? Mass. R. Crimi P. 30(b), Brescia, 471 Mass. at 389?390.
No court has yet examined the full narrative of injustice that led to Mr. Jones? conviction, which
includes police misconduct revealed through post?conviction forensic analysis and previously
undisclosed police reports, representation by an ill?prepared counsel who  while burdened by

egregious con?icts ot?interest failed to effectively challenge the central evidence against Mr.

 

6! Similarly, the evidence shows that Mr. Jones wore a unique at the time, which none of the witnesses
mentioned in their accounts. Speci?cally, Mr. Jones had a ?tail? ofhair in the back, which had been bleached with
peroxide. AFF262 (Jones Aff.), A024, A018. Ofthe many witnesses who reported seeing the shooter from behind
(while running away) or from the side, none mentioned seeing a reddish/blond tail. Particularly when combined with
the height difference, the absence of any reference to the tail shouid have eliminated Mr. Jones as a suspect. Instead,
the police forged ahead and continued to build a case against Mr. Jones.

98

Jones. and newly available social science casting profound doubt on the reliability of the
identification evidence. In light of what is now known about the full extent of the vulnerabilities
in Mr. Jones? case, there can be no doubtthat a miscarriage ofjustice has occurred. ?ee, cg,
Commonwealth v. McLaughlin, 433 Mass. 558, 562 (200] Commonwealth v. Fredette, 56
Mass. App. Ct. 254 (2002) (recognizing that even where no speci?c individual error would
compel a ?nding that there was a likelihood of miscarriage oi?justice, a combination of errors
and deficiencies may support such a ?nding).

Moreover, as discussed above, there was structural error inherent in the con?ict of
interest that defies analysis under a harmless error standard and in light of such structural error
the conviction should be vacated. The trial court?s power to grant post-conviction reliei"?may be
used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge?s
own error. or. as may have oCcurred in this case, the interaction of several causes.?
v. Woodward, 427 Mass. 659, 667 (1998).

- 'l'he'combination of errors, shortcomings, and injustices, deprived Mr. Jones of a fair
trial, and due process of law, as guaranteed by the Sixth Amendment and Article 12 of the
Massachusetts Declaration of Rights. Accordingly, Mr. Jones respectfully requests that this
court: release him from unlawful restraint, (ii) order discovery and an evidentiary hearing, 
vacate his conviction, (iv)grant a new trial, and order any other relief the Court deems

appropriate.   R. Civ. P. 30(a), and and 

99

100

Respectfully submitted,
DARRELL JONES,

By his attorneys,

\>Yd>??vrm Sf 
10M .1. Bam?,? BBO 032150'
83 Atlantic Avenue
Third loor
Boston, MA 02110
(617) 367?2545
barterj  811. co 

   AM,

Lisa M. Kavanaugh, BBO 647261
Innocence Program

Committee For Public Counsel Services
21 MeGrath l-r-Iighway

SomerVille, MA 02143

(617) 607?5762
lkavanaughfq?publiccounsel.net

0/0/31 

Anthony D. Mirenda, BBO 550587
Neil Austin, BBQ 657204

Foley Hoag LLP

155 Seaport Boulevard

Boston, MA 02211)

(617) 83233051
amirenda@foleyhoag.eom
naustin@foleyhoag.com

 

 

CERTIFICATE OF SERVICE

A copy of the above document was served by ?rst class mail, postage pro?paid, on this
23rd day of October, 2015, upon the attorney for the Commonwealth: Timothy Cruz, Plymouth
County District Attorney?s Of?ce, 32 Belmont Street, Brockton, MA 02301.

ll 



Neil Austin

 

lOl