COMMONWEALTH OF MASSACHUSETTS MIDDLESEX , SS. SUPERIOR COURT DEPT. No. 81-1712-14 COMMONWEALTH v. JAMES RODWELL MOTION FOR NEW TRIAL Now comes the defendant, James Rodwell, and moves this Honorable Court, pursuant to Mass. R. Crim. P. 30(b) to grant the defendant a new trial or in the alternative, an evidentiary hearing. On December 3, 1978 Louis Rose, son of a Burlington Police Captain and known to police as a local drug dealer, was found murdered in his car in Somerville, Massachusetts. Other than the seven spent shell casings found in Rose’s Buick that provided no fingerprints or a matching firearm and the body of Rose, nothing of evidentiary value was recovered from the crime scene. The Rose murder was cold until one Francis Holmes was arrested in 1981 on federal charges of interstate transportation of stolen goods. Facing substantial time on that charge, Holmes agreed to become an FBI informant and in the end of April of 1981, contacted the Massachusetts State Police with information about the Rose murder, and formally implicated James Rodwell in a recorded interview at Billerica on May 4, 1981. After obtaining a grant of immunity, Holmes agreed to testify that he had witnessed James Rodwell murder Rose. Since Holmes had been given immunity for his cooperation and no inculpatory physical evidence had been recovered from the crime scene, the Commonwealth needed more evidence to legally prosecute James Rodwell for the Rose murder. In the spring of 1981, David Nagle, a long-term paid government informant and a career criminal came to the aid of the Massachusetts State 1 Police and the Middlesex District Attorney’s Office. On April 22, 1981, David Nagle was placed in the Billerica House of Corrections after having robbed four civilians at gun point in Suffolk County. Facing life sentences on these Armed Robberies, Nagle was willing to do whatever was necessary to buy himself a ticket to freedom. Nagle was housed with Holmes at the hospital in Billerica starting from April 22, 1981 where the two likely spoke about the Rose murder. On May 22, 1981, James Rodwell was arrested and charged with First Degree Murder and placed into the Billerica House of Corrections on May 26, 1981, the same institution where David Nagle was held. After gathering all of the relevant pieces of evidence on the Rose murder from Holmes, from the newspaper, and from information likely obtained from an undisclosed meeting with the lead detective on the Rose murder, David Nagle gave a statement that James Rodwell had confessed to the Rose murder, including a specific reference that Rose was shot seven times by Rodwell. On Nagle’s and Holmes’s testimony, Rodwell was convicted of First Degree Murder and sentenced to life in prison despite Nagle’s perjured testimony and the government’s failure to disclose the true relationship between David Nagle, the DEA, the Massachusetts State Police and the Middlesex District Attorney’s Office. James Rodwell has steadfastly maintained his innocence over the past thirty-one years and has made many attempts to prove that the key trial witnesses Francis Holmes and David Nagle were bought and paid for by the government in an attempt to close the two-year-old investigation into the murder of Louis Rose, the son of a Burlington Police Captain. While coconspirator Francis Holmes was given a grant of immunity in exchange for his testimony against Rodwell, the government has vehemently denied that law enforcement had a hand in David Nagle’s testimony against Rodwell. For thirty-one years, James Rodwell has made it his mission to uncover the truth behind David Nagle’s motivation for testifying on behalf of a prosecution 2 that has robbed him of his family, his freedom, and his constitutional rights. That truth has finally been uncovered through the newly discovered evidence listed below. First, new evidence has been secured that shows that Nagle essentially admitted to committing perjury in James Rodwell’s trial. William G. Chase, Nagle’s half brother and the Chief of Police for the Westwood Police Department, former Chief of Police of the Harvard Police Department, and former Federal Special Agent with the U.S. Department of Labor has provided defense counsel with an affidavit detailing his relationship with Nagle, his knowledge of Nagle’s involvement with the Rodwell case, and his knowledge of Nagle’s status as a government informant. (Affidavit of William Chase, hereinafter “W.C. Aff. Ex. 106” at 2462) In his affidavit, Chase describes a conversation with Nagle, concerning statements Chase made in Boston magazine article1 questioning Nagle’s suspicious role in the Rodwell trial. In the article, Chase describes Nagle as a habitual, calculating and pathological liar. Approximately ten years after the Rodwell trial, Nagle told Chase that he was worried about being convicted of perjury for his testimony in Rodwell’s case. When Nagle confronted Chase about his statements to the article’s author, Nagle stated: “You know if I get jammed up on that I’d get a life sentence.” Id. at 24642. This is tantamount to an admission by Nagle that he committed perjury in the Rodwell trial. New evidence consisting of excerpts of Nagle’s testimony in the 1983 Federal prosecution of U.S. v. Mourad in New York reveal that Nagle was, with no question, a registered DEA informant from 1979 until at least the spring of 1981 (his last documented payment was February 1981), closely preceding Rodwell’s alleged confession to Nagle in the Billerica House 1  Strahinich,  John.  Snitch.  Boston  Magazine  March  1994.  (Snitch  Magazine  Article  by  John  Strahinich,   hereinafter  “Snitch  Ex.  107”  at  2466)  This  article  outlined  Nagle’s  life  as  an  informant,  drug  addict,  and   criminal  and  described  Nagle’s  role  in  helping  the  government  obtain  a  conviction  against  James  Rodwell.   2  All  pinpoint  citations  are  to  the  Bate-­‐Stamped  numbers  on  the  Exhibits  PDF  File.   3 of Corrections in June of 1981. Further, new evidence is obtained from a recent interview with David Nagle at the Bridgewater State Hospital which reveals that Nagle was a government agent when he allegedly secured Rodwell’s confession in direct conflict with prior adamant denials by the government that law enforcement had nothing to do with Nagle’s securing of Rodwell’s alleged confession. Based on reviewing Nagle’s testimony in Mourad, Rodwell’s defense team has learned that Nagle was arrested for Armed Robbery and Kidnapping in May 1980 in Middlesex County (Docket Nos. 80-3006-7), and was released on personal recognizance after the bail commissioner learned of his DEA ties from the Somerville Police (the same police department who took part in the Rose murder investigation.) Nagle was also later released on $500.00 bail in that case after being in default for almost two months. Nagle was again arrested on a warrant on April 22, 1981 for Armed Robbery, and had not received a documented payment from the DEA for information since February 1981. Nagle’s DEA connections allowed him to continue living his lifestyle of heavy drug use and Armed Robbery; without those connections he could not live the life he had become accustomed to. Nagle was placed close to Rodwell in Billerica, and in June 1981, he knew he had to deliver or risk forfeiting his lucrative career with the DEA. To that end, Nagle fabricated inculpatory statements from James Rodwell to help secure a murder conviction in a case that had been cold for more than two years. James Rodwell was convicted based on Nagle’s testimony, which was the necessary linchpin to corroborate the immunized testimony of coconspirator Holmes. As a result of Nagle’s testimony and cooperation with law enforcement, he was moved closer to his family, given lenient sentences on serious crimes, and continued to work for the DEA well into the 1980s, benefitting from furloughs, preferential treatment and protection. 4 When interviewed on May 25, 2012, Nagle materially contradicted his sworn trial testimony. Nagle testified that he met Rodwell in late May of 1981 and spoke to Rodwell through the end of June of 1981. Nagle testified that Rodwell made incriminating statements to him throughout the month of June of 1981, and that he had first met Detective-Lieutenant Spartichino (a State Trooper attached to the Middlesex D.A.’s Office and lead detective on the Rose murder) on July 9, 1981. Nagle also testified at trial that at their first meeting, Spartichino promised to speak to prosecutors on Nagle’s behalf for his pending cases. However, in his recorded interview on May 25, 2012, Nagle admitted to meeting with Spartichino for the first time in a Suffolk lockup. According to both the Brighton District Court and Suffolk Superior Court dockets, this first meeting at the Suffolk lockup could only be April 22, May 1, May 18 or June 22, 1981, which was prior to or during the time Rodwell was allegedly making statements to Nagle. Nagle was not back to a Suffolk Court until February 26, 1982. The existence of an undisclosed meeting between Nagle and Spartachino at the Suffolk lockup on any one of these dates drives a wedge into the Government’s steadfast denial of any influence, reward or promise made to Nagle prior to his elicitation of the alleged Rodwell confession. Defense has also obtained an affidavit of Retired Brookline Police Detective William McDermott in which he declares, in direct contradiction to Nagle’s trial testimony, that Nagle never reached out to him about the Rose murder and that he never put Nagle in contact with Spartichino. McDermott’s affidavit shows that he was never contacted by Nagle about the Rose murder, challenging the picture painted by the government that Nagle first reached out to Spartichino by contacting Detective McDermott. Spartichino’s active role in using Nagle to contrive a false confession against Rodwell is further bolstered by Nagle’s statement in the recorded interview that Spartichino “just showed up” at the Suffolk lockup (and likely shared 5 information with Nagle about the Rose murder, including information that seven discharged shell casings were found inside of the buick where Rose was found). The defense has also uncovered a letter to Judge Kathleen White from 1991 in which Nagle speaks very freely about his longstanding status as a government informant and the various benefits he has received in exchange for his cooperative efforts. Finally, Nagle and the government’s modus operandi for fabricating statements from defendants is exposed in the very suspect “confession” extracted from the defendants in Mourad. In Mourad, Nagle testified that the defendants had given him detailed information about their criminal enterprise, planned an escape with him, and offered him a position in a drug empire; all despite the fact that Nagle and the Mourad defendants were only in the same facility for eight days. The idea that the Mourad defendants, who were Lebanese and likely did not speak English as a first language, conspired with and confessed to Nagle in just eight days defies reason. Further, the Mourad defendants were placed in the house side of the facility where convicted inmates serving sentences (including Nagle) were housed, instead of the jail side where those awaiting trial were housed. These facts show that the Mourad defendants were intentionally placed near Nagle for the express purpose of crafting a situation in which the jury could believe the incriminating statements were actually made to Nagle. Most troubling, Nagle was a surprise witness in Mourad, preventing defense counsel in that case from adequately investigating his background and his story before cross examining him at trial. There are striking similarities between the “confession” in Mourad and the “confession” in Rodwell’s case. In both cases, the defendants were placed in the same facility and cellblock as Nagle. In both cases, Nagle learned about the case from the newspaper. In both cases, the defendants and Nagle were in the same facility for a short time (one month in Rodwell, eight 6 days in Mourad). In both cases, Nagle claimed to have befriended the defendants. In both cases, Nagle claimed the defendants asked him to commit a crime for them (an escape in Mourad, perjury in Rodwell). Finally, in both cases Nagle claimed that a reward he received for his testimony was a letter on his behalf (to the DA’s in Rodwell, the parole board in Mourad). The newly discovered evidence shows that a myriad of Rodwell’s State and Federal constitutional rights have been violated from the moment of his arrest until today. First, Rodwell’s Constitutional rights to Due Process of Law under the Fifth and Fourteenth Amendments of the U.S. Constitution, Article 12 of the Massachusetts Declaration of Rights, and the Sixth Amendment were violated when the Commonwealth (1) failed to correct the perjured testimony of its key witness, David Nagle; (2) failed to correct the Court’s material misstatements of fact relative to David Nagle; and (3) failed to produce both specifically and generally requested exculpatory evidence pertaining to David Nagle. This new evidence shows a disturbing pattern of the Commonwealth withholding the exculpatory evidence regarding Nagle’s status as a paid DEA informant and the promises, rewards, and inducements offered to Nagle in return for his testimony. Secondly, the government violated Rodwell’s Due Process Rights and Sixth Amendment and Article 12 Right to Counsel by intentionally eliciting statements from Rodwell through Nagle who was a known government agent at the time Rodwell allegedly made the statements. Nagle’s government agency status is shown through his prior relationship with the DEA, in which he was routinely paid for information by the government, and through specific promises made to Nagle in the undisclosed meeting with Spartichino at the Suffolk lockup that took place either before or during the time that Nagle allegedly elicited incriminatory statements from Rodwell. 7 These violations, as well as the newly discovered evidence and the interests of justice, demand that James Rodwell be granted a new trial, or at the very least an evidentiary hearing on the matters presented in this brief. As grounds therefore, Mr. Rodwell relies upon the attached af?davit of counsel, memorandum of law, and exhibits submitted in support thereof. JAMES RODWELL ORNE ATTORNEY VERONICA J. WHITE 640-332 101 TREMONT STREET, SUITE 1010 680-267 101 TREMONT STREET, SUITE 1010 BOSTON A02108 o- . A HLEEN D. MULLIGAN BBO 68 101 TREMO TREET, SUITE 1010 BOSTON, MA 02108 Dated: December 14, 2012 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX , SS. SUPERIOR COURT DEPT. No. 81-1712-14 COMMONWEALTH v. JAMES RODWELL MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR NEW TRIAL INTRODUCTION James Rodwell was convicted of First Degree Murder on November 25, 1981 based solely on the testimony of an immunized co-conspirator, Francis Holmes, and a jailhouse informant, David Nagle, who claimed that Rodwell had confessed to the murder of Louis Rose while housed at Billerica House of Correction (Billerica). Tr. 2/91; 4/123. Prior to trial, Rodwell sought to suppress the statements of Nagle, whom Rodwell claimed was a government informant and agent. (Pretrial Motion to Suppress Nagle’s Statements, hereinafter “Mot. Supp. Ex. 68” at 1196.) The motion to suppress was denied without an evidentiary hearing because Rodwell did not present sufficient evidence that Nagle was a government informant or agent. (Pretrial Motion Hearing, hereinafter “PrTr. Mot. Hr’g Ex. 2 at 37.) At trial, Rodwell’s counsel sought to cross examine Nagle on his prior cooperation with the government. The Court did not permit cross examination on Nagle’s prior cooperation (thus sustaining the Commonwealth’s objection), stating: “I have read this Walthier (sic) [U.S. v. Walther, 652 F.2d 788 (1981)] case. That was a highly specialized case of a regular paid informant for the Drug Enforcement Administration. And that was a case with a regular, settled, long-standing practice of the informant being encouraged and paid by the DEA for his information. This is not that situation. This should properly have been, in any event, the subject of a motion, a pretrial motion, which it was not. This does not go to the merits of the case and so I’m 9 not going into any issue as to whether or not he’s a Governmental agent.” Tr. 4/150-51. (emphasis added) Rodwell has discovered new evidence in the form of the transcripts of U.S. v. Mourad in which Nagle testified, a May 2012 interview with Nagle at Bridgewater State Hospital, an affidavit from Retired Brookline Police Officer William McDermott, an affidavit from current Chief of Police of the Westwood Police Department (and David Nagle’s half brother) William Chase and a 1991 letter from David Nagle to Judge Kathleen White. Since the Court’s ruling denying the cross-examining Nagle on his status as a government agent based on Walther, the following evidence has been discovered pertaining to David Nagle: I. Nagle admitted to committing perjury at James Rodwell’s trial to Nagle’s half brother William Chase, currently the Chief of Police for the Westwood Police Department: a) In the Snitch Article, which questioned Nagle’s suspicious role in the Rodwell trial, Chase described Nagle as a “habitual,” “pathological,” and “calculating” liar who would “tell you what you want to hear if he thinks it’ll do him any good.” (Snitch Ex. 107 at 2470); b) After Snitch was printed, Nagle spoke with Chase about the statements Chase made to the author of Snitch and Nagle’s participation in the Rodwell case. David told Chase that he was worried about being convicted of perjury for his testimony in the Rodwell case. Nagle confronted Chase about statements he made to the author of Snitch and said, “You know if I get jammed up on that I’d get a life sentence.” Id.; c) Chase remembers Nagle informing for the following individuals: William McDermott of the Brookline Police, John Jackson of the Watertown Police, Al Reilly of the DEA, John Nee and John Ridlon of the Boston Police, and Jay Cronin, Robert Cox, William Powers, and Thomas Spartichino of the Massachusetts State Police in addition to providing information to Chase. Chase also remembered travelling to the Greenfield House of Corrections with John Jackson in 1982 to obtain information from Nagle on another case Id. at 2463; d) Chase was a Federal Special Agent with the U.S. Department of Labor from 1989-1994, the Chief of Police of the Harvard Police Department in Harvard, Massachusetts, and has worked in law enforcement since 1976. Id. at 2462; 10 II. Nagle was a DEA informant at the time he took the alleged statements from James Rodwell; a) Nagle was a registered DEA informant from May 1979 until at least Spring of 1981, with a recorded cash payment from the DEA as late as February 1981. Nagle also acted as an informant in undercover transactions on behalf of the DEA from May 1979 until February of 1981. Nagle was paid by the DEA from May 1979 up through February of 1981. (Transcript U.S. v. Mourad, et al Docket SDNY82-CR-00769, hereinafter “Mour. Tr. Ex. 97” at 2247, 2143, 2254); b) Nagle’s DEA informant number is SCC 79-0030. Id. at 1888-92. According to DEA Agent Ed O’Brien, an informant number begins with letters indicating the office designation, followed by numbers indicating the year that an informant first came into contact with the DEA. (Transcript of U.S. v. Murphy, et al Docket 84-103-F, hereinafter “Murph. Tr. Ex. 81” at 1576-57, Mour. Tr. Ex. 97 at 1892); c) Nagle was indoctrinated as a DEA informant in May 1979. (Mour. Tr. Ex. 97 at 2142-3); d) Nagle was debriefed by DEA Agent Ed O’Brien as late as 1983, showing that he was still providing information to the DEA at least until that time. Id. at 2209; e) Nagle was a documented DEA informant from May 1979 to spring 1981 and at least from November 1982 to his deactivation sometime in 1983. While the AUSA in Mourad specifically said Nagle was deactivated in 1981, the only deactivation report provided to counsel in the Mourad trial was dated February 1, 1983. Counsels in Mourad were also provided a document from November 9 (no year indicated, but likely not later than 1982 as Nagle was testifying in March 1983) that said Nagle was reactivated. Although Nagle was apparently deactivated in both 1981 and 1983, he was still acting as a DEA informant in March 1984 for Agent Ed O’Brien through continued contact regarding the undercover operation that led to the Murphy trial in 1984. (Mour. Tr. Ex. 97 at 1886-88, 2142-43, 2207-10, 2254; Murph. Tr. Ex. 81 at 1443-1446, 1625-28); f) Nagle obtained the alleged statements in Mourad, an important high-profile case investigated by the DEA, only one year after testifying in Rodwell, and was moved from Billerica to a federal institution in New York within a few days of the Mourad defendants being moved,3 all without any mention of a writ of habeas ad testificandum in the Mourad docket nor any mittimus issued by any designated clerk in any of the cases for which Nagle was incarcerated at the time. (D.N. Dkt. Midd.’80 Ex. 69 1201-02; D.N. Dkt. Suff.’82 Ex. 30 at 774; Mour. Dkt. 2486.) This suggests that Nagle was still an active DEA informant at that time, and was likely never actually deactivated; 3  Nagle  testified  in  Mourad  that  he  was  transferred  on  January  24,  1983,  only  about  a  month  before  trial.   (Mour.  Tr.  Ex.  97  at  2265.)  However,  in  the  recorded  interview,  Nagle  stated  that  he  was  transferred  only  a   few  days  after  the  Mourad  defendants,  in  either  November  or  very  early  December  1982,  likely  in  an  attempt   to  elicit  more  statements  from  the  defendants.  (D.N.  Int.  Ex.  98.  2344-­‐45.)  The  actual  date  of  Nagle’s  transfer   was  therefore  likely  not  known  to  defense  counsel  in  Mourad.     11 III. Nagle was a known informant and was planted in Billerica to elicit statements from Rodwell: a) Francis Holmes entered Billerica in early April 1981 and immediately became an FBI informant. Between the “end of April” 1981 and May 4, 1981, Holmes contacted and met with law enforcement on three separate occasions regarding the Rose murder and implicated James Rodwell. Tr. 2/58, 2/130-33, 3/13-16, 3/31-33, 3/49-53; b) On April 22, 1981, Nagle was arrested on Suffolk charges, but placed in Billerica in Middlesex County and held there until he was transferred to Greenfield House of Correction on July 14, 1981. Tr. 4/114, 142. (D.N. Dkt. Brght. Dist. Ex. 108); c) Holmes and Nagle were both put in the hospital upon entering Billerica House of Corrections, a small dormitory-like setting where inmates had free rein to talk and meet with each other. 4/165; d) Holmes gave a formal statement to the police regarding the Rose murder on May 4, 1981 while he was still in custody at Billerica. (Francis Holmes State Police Interview, hereinafter “F.H. MSP Int. Ex. 61” at 1071); e) In Nagle’s interview with Attorney White, Nagle indicated that he first met with Spartichino for the first time at the “Suffolk County Court House”. (David Nagle Interview at Bridgewater State Hospital, 2012, hereinafter “D.N. Int. Ex. 98” at 2321.) Nagle later indicated in the White interview that he spoke with police on one of his Suffolk cases at Brighton District lockup (D.N. Int. Ex. 98 at 2370, 2379) and then indicated that he spoke to Spartichino at the Suffolk Superior Court lockup. Id. at 2389. Nagle independently referenced the “lockup” (without identifying which Court) elsewhere during the interview. Id. at 2396-97; f) Due to the inconsistencies of which Suffolk County lockup Nagle was referring to in the White interview, this brief will show that Nagle’s meeting with Spartichino must have taken place during any one of Nagle’s visits to a lockup in Suffolk County during the time frame after Nagle was arrested on the Suffolk County Armed Robbery case. Nagle was in Brighton District Court for various armed robbery charges on April 22 and May 1 and 18, 1981, and began cooperating with police on May 18, 1981. (Tr. 4/149, D.N. Int. Ex. 98 at 2379; David Nagle Brighton District Dockets 1706-09, 2051-54, hereinafter “D.N. Dkt. Brght. Dist. Ex. 108” at 2480-3) On June 22, 1981, Nagle was in Suffolk Superior Court for an arraignment on Armed Robbery charges which were bound over from the Brighton District Court to Suffolk Superior Court. 4/147. (David Nagle Suffolk Docket 035529-32, hereinafter “D.N. Dkt. Suff.’82 Ex. 30” at 773-4.) Thus, according to his dockets and his statement during the interview, Nagle secretly met with Lt. Spartichino at either the Brighton District Court lockup on April 22, May 1, or May 18, 1981,4 or at the Suffolk Superior lockup on June 22, 1981. (D.N. Dkt. Suff.’82 Ex. 30; D.N. Brght. Dist. Ex. 108); 4  Nagle’s  Brighton  District  Court  dockets  and  appearance,  as  well  as  his  Suffolk  Superior  indictments  from   1981  all  show  that  he  was  in  court  in  Brighton  on  April  22,  May  1,  and  May  18,  1981.  (D.N.  Dkt.  Brght.  Dist.  Ex.   12 g) James Rodwell was not arrested until May 22, 1981 and entered Billerica on May 26, 1981, where he was housed in a cell across from Nagle. Tr. 5/112, 120, 123. (David Nagle State Police Interview, hereinafter “D.N. MSP Int. Ex. 66” at 1149); h) Nagle testified at trial that Rodwell allegedly made statements to him until “the end of June.” Tr. 4/153; i) In Middlesex on June 12, 1981, during which time Nagle was represented by Attorney Diane Juliar for his May 9, 1980 Armed Robbery case, Attorney Juliar informed the Court that Nagle was being “held in Middlesex (Billerica) on Suffolk bail for protection purposes in that he has given a great deal of information to the Suffolk D.A.’s office and actually to some Middlesex police as well, regarding other matters.” (David Nagle Bail Hearing Middlesex Docket 80-3006-007, hereinafter “D.N. Bail Midd.’81 Ex. 29” at 768); j) The Department of Corrections would have been aware of Nagle’s placement in the Billerica House of Corrections as any law enforcement officer seeking to specifically place Nagle in a Middlesex County jail for a Suffolk case would be required to go through D.O.C.; IV. David Nagle committed perjury on several occasions at trial regarding material issues, none of which was corrected by the Commonwealth. The instances of perjury show that Nagle was lying to cover up his dealings with Spartichino and his status as a government informant during the time frame that he elicited the false confession from Rodwell: a) According to Attorney Kevin Reddington in Rodwell’s fourth motion for new trial, “Almost all of Nagle’s armed robbery charges were reduced to larcenies with minuscule sentences… [At trial] twelve [of Nagle’s] crimes were brought out; one assault by means of a dangerous weapon, one armed robbery, one drug offense, one uttering, and eight larcenies,” but Nagle’s entire criminal record had “four charges of assault by means of a dangerous weapon, twenty-seven charges of armed robbery up to the time of the defendant’s trial, and twenty-four other assorted charges.” (Fourth Motion for New Trial, hereinafter “4th Mot. N. Tr. Ex. 13” at 285); b) Nagle testified at both the Rodwell trial and in Mourad that he contacted Brookline Police Officer William McDermott about the Rose murder and McDermott then put Nagle in touch with Spartichino. Tr. 4/142. Mour. Tr. Ex. 97 at 2199, 2215-16. However, McDermott has since signed an affidavit stating that he did not receive any information from Nagle about the Rose murder or James Rodwell and did not put Nagle in contact with Spartichino: “David Nagle did not contact me regarding a murder in Somerville or anyone who had confessed to a murder in Somerville. I did not put David Nagle in touch with Lt. Thomas Spartichino of the Massachusetts State Police at any time, especially 108  at  2480-­‐83,  D.N.  Appr.  Brght.  Dist.  Ex.  209,  D.N.  Indict.  Suff.  Ex.  110  at  2488-­‐94.)  Rodwell  was  arrested  on   May  22,  1981.  Tr.  5/120.   13 between April-July, 1981. If David Nagle had told me that he overheard someone claiming to have shot and killed someone else, I would have gone to speak with David Nagle in person to confirm the allegations prior to putting Nagle in contact with another detective.” (Affidavit of William McDermott, hereinafter “W.M. Aff. Ex. 99” at 2423); c) Nagle testified that the last time he spoke to Rodwell was at the end of June 1981 and that it wasn’t until he stopped speaking to Rodwell that he first spoke to law enforcement on July 9, 1981. Tr. 4/142, 153. However, Nagle actually had a secret meeting with Spartichino at either Brighton District Court lockup not later than May 18, 1981 or at Suffolk Superior Court lockup on June 22, 1981. (D.N. Int. Ex. 98 at 2321, 2367, 2370, 2379, 2389, 2396-97; D.N. Dkt. Suff.’82 Ex. 30; D.N. Dkt. Brght. Dist Ex. 108); d) According to Nagle, he never spoke to the Suffolk D.A. in his case, and he met with the police “one, and one time only, on May 18 or 19 1981,” the same day as his arraignment. Tr. 4/146-47; (PrTr. Mot. Hr’g Ex. 2 at 27; D.N. Dkt. Brght. Dist. Ex. 108.) Nagle indicated in the White interview that he spoke with police on one of his Suffolk cases at Brighton District lockup (D.N. Int. Ex. 98 at 2370, 2379) and then indicated that he spoke to Spartichino at the Suffolk Superior Court lockup. Id. at 2389; e) Nagle testified that Spartichino merely arranged the transportation for his transfer from Billerica to Greenfield, and that the transfer had been prearranged by Suffolk County in May 1981, even though he was not transferred until July 14, 1981- five days after his alleged first contact with Middlesex law enforcement. Tr. 4/162-4. However, Spartichino personally “was the transportation”; he drove Nagle the two hours from Billerica to Greenfield on July 14, 1981. (D.N. Int. Ex. 98 at 2399); f) Nagle testified that other than arranging his transportation, the only reward he received for his testimony against Rodwell was that Spartichino intended to speak on his behalf regarding his pending cases and write a letter. Tr. 4/143. The D.A.’s Office stated that “No promises, rewards or inducements have been offered or given to Mr. Nagle. Lt. Spartichino made clear to Mr. Nagle; however, the lieutenant did tell him that when this case was finished, he (Spartichino) would write to or inform the District Attorneys of Middlesex and Suffolk Counties of Mr. Nagle’s cooperation in the matter.” (Disc. Prov. Ex. 96 at 1876.) However, on February 26, 1982 at Nagle’s Suffolk County guilty plea, Spartichino spontaneously approached the judge at an unrecorded sidebar and presumably informed the judge of Nagle’s cooperation as Nagle received a 7-12 year sentence for multiple armed robberies when the Commonwealth was recommending a 15-20 (David Nagle Plea Suffolk Docket 035529-32, hereinafter “D.N. Plea Suff.’82 Ex. 25” at 741; Affidavit of A.D.A. Robert Nelson, hereinafter “R.N. Aff. Ex. 79” at 1305); g) A.D.A Robert Nelson, who prosecuted Nagle on the February 26, 1982 Suffolk plea, was outraged at Spartichino’s actions and stated that Spartichino did not speak to Nelson or advise any of Nelson’s supervisors of his intentions before meeting with the judge5, without either counsel, at an unrecorded sidebar. (R.N. Aff. Ex. 79); 5  Spartichino did inform Nelson immediately before the hearing began that he “would like to advise the judge in this case that David Nagle had cooperated with and provided information to him about a in Middlesex County (which he 14 h) Lt. Spartichino sat at the prosecutor’s table in civilian clothes throughout Rodwell’s entire trial and still there was no correction of Nagle’s perjury. Tr. 3/9. See James Rodwell affidavit; i) On September 27, 1983, the Commonwealth submitted an affidavit of Spartichino in their opposition to Rodwell’s motion for new trial on grounds of ineffective assistance of counsel. Spartichino stated that: “Mr. Nagle was cross examined by Attorney Cintolo concerning his prior criminal convictions as well as any promises, inducements or rewards made by law enforcement agencies, including the fact that I intended to notify the Middlesex and Suffolk District Attorneys of Mr. Nagle’s cooperation and that I had arranged for Mr. Nagle’s transportation from Billerica to the Greenfield House of Correction.” Here, Spartichino provided a statement in which the Commonwealth averred was a truthful, complete and accurate account of any promises, rewards and inducements given to Nagle. In reliance on these statements, the Commonwealth claimed that Attorney Cintolo had effectively cross examined Nagle. (See Affidavit of Lt. Thomas Spartichino, hereinafter “T.S. Aff. Ex. 5” at 127; Ct.’s Den. Def.’s 1st. Mot. New. Tr. 1983. Ex. 6 at 132; Opp’n 1st Mot. N. Tr. Ex. 48 at 967-68, 976; Pr’ed F’dings 1st Mot. N. Tr. Ex. 82 at 1707; Opp’n 6th Mot. N. Tr. Ex. 78 at 1251); j) Spartichino’s statement that he only intended to notify the District Attorneys of Nagle’s cooperation is contradicted by the fact that he stormed into the first session of Suffolk Superior during Nagle’s plea on February 26, 1982 and approached Judge Linscott at side bar without having notified A.D.A. Nelson beforehand. Despite the Commonwealth’s reliance on Spartichino’s affidavit as complete and accurate, Spartichino failed to mention (1) the unrecorded sidebar with Judge Linscott on February 26, 1982 where he was successful in securing a 7-12 on a life sentence over the Commonwealth’s objection; (2) that he personally appeared in Middlesex Superior on the same day to help Nagle later secure a concurrent sentence on another Armed Robbery, and (3) the fact that he personally drove Nagle to Greenfield--all information which would have exposed Spartichino for having rewarded Nagle and offered him promises and inducements far beyond that which was disclosed to Rodwell by the Middlesex District Attorney’s Office. (Affidavit of Lt. Thomas Spartichino, hereinafter “T.S. Aff. Ex. 5” at 127; D.N. Writ. Midd. Ex. 46 at 943); k) In further contradiction to Spartichino’s affidavit, Nagle testified in a Federal case in March 1983 that law enforcement working on the Rodwell case “advised the judge (at his Suffolk plea) of the fact that [Nagle] had cooperated in that case and asked. . . the judge to consider that in sentencing.” (Mour. Tr. Ex. 97 at 2274)(emphasis added); did not name). (R.N. Aff. Ex. 79 at 1305.) Nelson later said that he believed “the proper procedure for this case should have been for Lt. Spartichino to come and speak with me or one of my upper managers, well ahead of David Nagle’s sentencing date, and explain to us what he wanted for David Nagle, so that as a group we could have reached a mutually acceptable sentence that everyone could live with. This was not done. Lt. Spartichino showed up a few minutes before the hearing, talked to the judge, got what he wanted and took off. I checked with my superiors and none of them had any knowledge of what Lt. Spartichino was going to do that day.” Id. at 1306.   15 l) Also on February 26, 1982, Spartichino, in accordance with a writ to the Greenfield House of Corrections, presented Nagle6 to appear at his Middlesex Superior Court for a bench trial for Armed Robbery and kidnapping, for which he was found guilty after waiving his right to a jury trial and on march 30, 1982, received a 7-12 year sentence to run concurrent with his Suffolk plea. (D.N. Writ Midd. Ex. 46; D.N. Dkt. Midd.’80 Ex. 69; D.N. Midd. F. Ex. 86 at 1754; Ex. 86 at 1751, 1754-5); m) Nagle was indicted and found guilty in March 1982 on another Middlesex Armed Robbery and received a 7-12 year sentence to run concurrent with his February Middlesex and Suffolk sentences. (David Nagle Indictment Middlesex Docket 82-1058, hereinafter “D.N. Midd. Ind.’82 Ex. 75”; D.N. Midd. F. Ex. 86 at 1775.) In all, Nagle was convicted of 6 counts of Armed Robbery and one count of kidnapping, and was only sentenced to 7-12 years total, of which he served less than 3 years. David Nagle was paroled on September 28, 1984 (David Nagle Criminal Record, hereinafter “D.N. Crim. R. Ex. 49”; David Nagle Criminal Justice Information System Record, hereinafter “D.N. CJIS R. Ex. 36” at 872; D.N. Plea Suff. ’85; Ex. 31 at 797-98); n) At trial, Nagle testified that he first learned about Rodwell and the Rose murder from inmate Richie Scala. Tr. 4/165. However, in 2012 Nagle stated that he did not know anything about Rodwell’s case until Rodwell was put in the cell across from his and Rodwell allegedly began talking about the murder. (D.N. Int. Ex. 98 at 2358); o) In 2012, Nagle stated he never read about Rodwell’s case in the media. Id. at 2359. At trial, however, two Billerica inmates testified that Nagle was frequently reading the newspaper and cutting out articles about Rodwell’s case. Tr. 5/81, 91; p) Nagle testified that he met Holmes in the Billerica hospital, knew Holmes “fairly well,” and had spoken to him “many times” but they had never discussed Rose or Rodwell. Tr. 4/129-31. Nagle testified that he and Holmes were in the hospital at Billerica because Billerica was overcrowded and they were waiting for cells to open up. Id. at 130. In 2012, Nagle stated that he did not have “any conversation whatsoever” with Holmes. (D.N. Int. Ex. 98 at 2353-54); q) Holmes had contacted law enforcement about Rose and Rodwell through inmate Robert Trenholm. Tr. 2/131. Nagle testified that he had known Trenholm from a 6 month stint at Dedham HOC, but that he did not become friends with or talk to Trenholm until Holmes had left Billerica. Tr. 4/167-68. In 2012, when Nagle was asked about Trenholm, he yelled, “where did you!? -- you know, that is the most-- I have n-- I might have said he’s got a face like Franken-- like an old catcher’s mitt…You see, I’m telling you, his face is like an old catcher’s mitt. And he-- I had nothing to do -- I don’t even -- I didn’t say five words to him in my whole life!” (D.N. Int. Ex. 98 at 2362); 6 The writ says that the body presented is that of Richard Nagle. However it is clear that this is referring to David Nagle as the Command is for David Nagle and it has his specific Middlesex Docket number 80-3006. (D.N. Writ Midd. 46 at 943; D.N. Midd. F. Ex. 86 at 1755.) 16 V. Nagle was a professional informant whose Modus Operandi was to fish for information as a jailhouse informant: a) At Greenfield on November 7, 1982, defendants awaiting trial on Federal heroin charges (the “Mourad defendants”) out of New York were placed in the same cell block as Nagle. The Mourad defendants had been arrested in Massachusetts and were set to be transferred to New York. (Mour. Tr. Ex. 97 at 2119-2124, 2231, 2253, 2281, 2297-98); b) Nagle was serving his sentence on the house side of Greenfield. The Mourad defendants, who were awaiting trial, were not placed in the jail side, but rather with Nagle on the house side of Greenfield. Id. at 2119; c) Only 8 days after entering Greenfield, the Mourad defendants were transferred to New York. Id. at 2234; d) In November 1982, only days after the Mourad defendants were transferred to New York, Nagle, while still incarcerated at Greenfield, was transported to New York by Federal Marshals and placed in the same federal jail as the Mourad defendants. (D.N. Int. Ex. 98 at 2345); e) In November 1982, Nagle met DEA Agent Ed O’Brien in New York City and began working for O’Brien. (Murph. Tr. Ex. 81 at 1443-44); f) Nagle testified as a DEA informant against the Mourad defendants in March 1983, stating that during the 8 days they were incarcerated with Nagle, the Mourad defendants confessed their crimes to Nagle, brought Nagle in on their heroin smuggling scheme, and conspired with Nagle to escape from Greenfield. (Mour. Tr. Ex. 97 at 2122-28; D.N. Int. Ex. 98 at 2342); g) In 1983 Nagle worked undercover as a DEA informant for O’Brien. Nagle and O’Brien would pose as drug buyers to investigate dealers. (D.N. Int. Ex. 98 at 2339; Murph. Tr. Ex. 81 at 1333, 1341-44); h) Nagle and O’Brien had an understanding regarding Nagle’s continued cooperation as an informant in between assignments. (Murph. Tr. Ex. 81 at 1453); i) Nagle would rob drug dealers at the behest of Agent Ed O’Brien and gave O’Brien his “take” from the robberies. (D.N. Int. Ex. 98 at 2339); j) In 1984, Nagle testified as a DEA informant in Massachusetts Federal Court against drug dealers he had set up in 1983 while undercover with O’Brien. (Murph. Tr. Ex. 81 at 1333, 1341-44, 1554, 1622-25); k) While in Billerica, Nagle and Rodwell were both sent to the disciplinary board due to an altercation with other inmates. As a result of the disciplinary board hearing, Rodwell was 17 sent to “the hole” but Nagle was found not guilty and was able to return to his cell block. Tr. 4/140, 191-92. VI. The government has consistently denied the fact that David Nagle was an informant who was planted in Billerica to elicit statements from James Rodwell even though there is clear evidence that from at least 1980, the Commonwealth knew that Nagle was a government informant: a) Nagle was arrested for Armed Robbery and kidnapping on May 9, 1980 by Somerville Police at DEA Headquarters. (Mour. Tr. Ex. 97 at 2243-44); b) Nagle was released on personal recognizance on May 9, 1980 after the Somerville Police informed the Bail Commissioner that Nagle was a DEA informant. (Mour. Tr. Ex. 97 at 2245-6), D.N. Dkt. Midd.’80 Ex. 69 at 1201); c) The May 9, 1980 Armed Robbery and Kidnapping was prosecuted by the Middlesex District Attorney’s Office, docket numbers 80-3006-7. (D.N. Dkt. Midd. ’80 Ex. 69 at 1201-03); d) The Commonwealth downplayed Nagle’s transfer and undermined defense counsel’s claim that the transfer was evidence of a relationship with the government. (PrTr. Mot. Hr’g Ex. 2 at 29-30.) The Commonwealth maintained that Middlesex officials had nothing to do with the transfer other than Spartichino arranging for Nagle’s transportation, despite Spartichino having had uninterrupted, unmonitored access to Nagle while he personally drove Nagle to Greenfield. (Opp’n Mot. Supp. Ex. 54 at 103536; D.N. Int. Ex. 98 at 2399); e) The A.U.S.A. prosecuting the Mourad defendants explicitly told the judge that she had checked to see what Nagle’s role was in the Rodwell case. (Mour. Tr. Ex. 97 at 2041.) The Commonwealth has never disclosed to any Court or to Rodwell’s defense team that it had been contacted by this A.U.S.A. who had direct knowledge David Nagle’s role as a DEA informant in the Mourad prosecution. (Affidavit of Counsel); f) Ed O’Brien used Nagle as a DEA informant three times prior to August 1983. (Murph. Tr. Ex. 81 at 1446-50); g) Nagle’s DEA handlers had been Al Duffy and Al Reilly prior to summer 1980 when Duffy and Reilly were transferred to Springfield. (Mour. Tr. Ex. 97 at 2200, 2261-63.) Once in Springfield, Duffy and Reilly would have reported to O’Brien as he was sent to Springfield to open the DEA office there. (Murph. Tr. Ex. 81 at 1327); h) Since 1980, Ed O’Brien had worked with the Massachusetts State Police. Id. at 1341; 18 i) Ed O’Brien wrote a letter to the parole board stating that Nagle was a DEA informant and, according to journalist Joseph Bargmann, the letter indicated Nagle was an informant for O’Brien from 1981 to 1983. (Murph. Tr. Ex. 81 at 1455; Affidavit of Joseph Bargmann, hereinafter “J.B. Aff. Ex. 60” at 1069); j) In 1991, Nagle wrote a letter to Judge Kathleen White, stating that he had “hundreds of phone calls” with Boston law enforcement and “on several different occasions they had [Nagle] taken out of prison to meet with them” and even took Nagle out to Watertown to visit his family and “treated” him to steak dinners. Nagle stated that those officers had made promises to him about his sentencing (in unrelated cases, not in Rodwell) and that he put his own life in danger by upholding his “end of the agreement.” Nagle asked the Court to “adhere to this agreement,” stating, “we all know, District Attorneys included, these promises were made. How else would the police be able to get their information?” (David Nagle 1991 Letter to Judge Kathleen White, hereinafter “D.N. Ltr.’91 Ex. 100” at 2426-29); k) In 2006, Nagle wrote a letter to the Middlesex D.A.’s Office, which stated in part, “My Name is David Nagle I am now serving a life sentence for probation violation of which I’ve served 23 years. My deal to testify in a murder case and a Federal Court on some international issues. My deal was that I not be put in ‘harms way’ but D.O.C. is going back on their word. I am dying of liver failure. I never killed anyone except my drug use killing myself. I need your office to appoint an attorney so I can go forward with a Revise & Revoke. I hope you can help because if D.O.C. doesn’t live up to the bargain, I’ll have to go back on my deal.” (David Nagle 2006 Letter to Middlesex District Attorney, hereinafter “D.N. Ltr.’06 Ex. 88” at 1831.) The Commonwealth insisted Nagle was not referring to a deal from Rodwell’s case: “it appears that the ‘deal’ that Nagle was referring to in his December 2006 letter was his claim that the Middlesex District Attorney’s Office had promised him a 12- to 20-year sentence at his plea before Justice Elam in 1986…Nagle’s unsworn letter certainly does not amount to any recantation or contradiction of his November 1981 trial testimony in this case.” (Opp’n Mot. R. Ex. 23 at 605), even though Nagle had only ever testified in one murder trial. (D.N. Int. Ex. 98 at 2407). In 2012, Nagle admitted that in the letter, he was referring to a deal from Rodwell’s trial.7 (D.N. Int. Ex. 98 at 2407-8); l) The 2006 letter also serves to further show that the D.O.C. was aware of Nagle’s status as a government informant and further that they were involved in granting Nagle promises, rewards, or inducements in return for his testimony in Rodwell’s case and in Mourad; m) In 2012, Rodwell’s counsel reviewed Nagle’s 1985 Suffolk case file and discovered a sealed envelope. (Affidavit of Counsel); 7 Ms. White: So what is it about this deal to testify? What was the deal to testify in the murder case? Tell me. You referred to Jimmy’s case here, right? And you said “deal to testify in a murder case.” I mean, you’ve never testified in any other murder, right? Mr. Nagle: Right. (D.N. Int. Ex. 98 at 2407.) 19 n) The first page of Nagle’s Criminal Justice Information Services record states in conspicuous writing that “there is at least one sealed case on file.” (D.N. CJIS. R. Ex. 36 at 872-74.) This is the forth instance known to defense where a record pertaining to David Nagle was off-the-record, sealed or impounded8; o) In 1983, along with his motion for new trial alleging ineffective assistance of counsel, Rodwell submitted a motion for disclosure of information on Nagle’s informant status. (Defendant’s Motion for Discovery with First Motion for New Trial, hereinafter “Mot. Disc.’83 Ex. 4” at 121) The Commonwealth opposed the motion, relied heavily on Spartichino’s affidavit indicating that Attorney Cintolo was effective in cross-examining Nagle, even though the new evidence shows that Spartichino made material omissions in his affidavit. 9 The motion for new trial was denied. (Denial of First Motion for New Trial, hereinafter “Den. 1st Mot. N. Tr. Ex. 6” at 132; Commonwealth’s Opposition to First Motion for New Trial, hereinafter “Opp’n 1st Mot. N. Tr. Ex. 48” at 976, Commonwealth’s Proposed Findings of Fact for First Motion for New Trial, hereinafter “Pr’ed F’dings 1st Mot. N. Tr. Ex. 82” at 1708-11); p) Nagle contacted William Chase multiple times during 1980 and 1981 to inform on various cases while Nagle was on the street, and Chase recalls visiting Nagle at the Greenfield House of Correction in 1982 to obtain information regarding an unrelated case. (W.C. Aff. Ex. 106 at 2462-63); STATEMENT OF FACTS December 1979-May 1981: The Rose Murder and Arrest of James Rodwell On December 3, 1978, Louis Rose, Jr. was discovered murdered in his car on Garfield Avenue in Somerville, Massachusetts. (Louis Rose, Jr. Death Certificate at 876, hereinafter “Death Cert. Ex. 37” at 876; Lt. Thomas Spartichino Police Report at 880, hereinafter “T.S. Rep’t. Ex. 39” at 880) The Somerville Police and Massachusetts State Police worked together in the murder investigation, which was led by Det. Lt. Spartichino of the State Police assigned to Middlesex Superior Court. Tr. 4/54, 86. (T.S. Rep’t. Ex. 39 at 880.) Other than the ballistics evidence (7 shell casings and 4 spent bullets) that provided no fingerprints and the body of Luis 8 See Nagle’s 1982 Suffolk Plea (off the record sidebar and “written materials”) (D.N. Plea Suff.’82 Ex. 25); Nagle’s 1985 Suffolk Plea (D.N. Plea Suff.’85 Ex. 31); The sealed case file referenced in Nagle’s FBI CJIS Record (D.N. CJIS. R. Ex. 36); and a Sealed envelope in Nagle’s 1985 case file, and see Affidavit of Counsel. 9 Nagle’s favorable treatment from law enforcement “would not have added a new or different defense…Cintolo effectively and adequately cross-examined Mr. Nagle concerning his cooperation with law enforcement on his pending cases, his prior statement to Lt. Spartichino, and his ability to be transferred out of Billerica after making statement to Lt. Spartichino. Id. at 967-68. (internal citations omitted)   20 Rose, nothing of evidentiary value was recovered from the scene. (T.S. Rep’t. Ex. 39 at 881; Ballistics Rep’t. Ex. 40 at 887-88.) The case remained cold until 1981. In April 1981, Francis Holmes was arrested on federal charges of interstate transportation of stolen goods and, as a result, Holmes’ Massachusetts parole was revoked and he was placed in Billerica. Tr. 2/129. After agreeing to become an FBI informant and being placed in the Federal Witness Protection Program, Holmes, through fellow inmate Robert Trenholm, telephoned State Trooper William Powers at the end of April 1981 and claimed that he and another coconspirator, Anthony Corlito, witnessed James Rodwell murder Louis Rose during a drug ripoff. Tr. 2/129-31, Tr. 3/30-2. As a result of the phone call, Powers visited Holmes in Billerica and, although they talked for at least thirty minutes, counsel has no records indicating what was discussed at the meeting. Tr. 2/130-2; 3/31-33. Within a week of the first meeting, Powers returned to Billerica with Spartichino and an unidentified FBI Agent. Tr. 3/14, 33. Spartichino and Powers were taking notes during the meeting, but counsel had no record that details the discussions at the second meeting. Tr. 3/49-50. Holmes testified that at the second meeting, Spartichino agreed to speak to the parole board on his behalf. Tr. 3/15-16. Accordingly, Holmes’ Massachusetts parole was never revoked and he was able to leave Billerica shortly after speaking with Powers and Spartichino. Tr. 3/30, 33. Spartichino allegedly told Holmes at the meeting that he would be arrested and charged with murder. Tr. 3/16. However, Holmes was never charged with murder; in fact, during the first attempt to indict Rodwell, Holmes pleaded the fifth and refused to testify. Tr. 3/21, 27-33. Not until Holmes was granted complete immunity from prosecution for the Rose murder did he agree to testify at the second grand jury and at trial and against Rodwell. Tr. 3/2728. (Francis Holmes Immunity Order, hereinafter “Imm. Ord. Ex. 67” at 1192-93.) 21 On May 4, 1981, within a week of the second meeting, Powers, Spartichino, and a stenographer returned to Billerica to take a recorded statement from Holmes. Tr. 3/51-53. In the statement, Holmes implicated Rodwell in the murder of Rose. (F.H. MSP Int. Ex. 61 at 1094.) Shortly thereafter, Holmes’ parole revocation was lifted and he was released from Billerica. Tr. 3/143. Holmes was able to see the birth of his child and get married before returning to custody on July 24, 1981, after pleading guilty to Federal charges and being sentenced to 3 years. Tr. 3/35, 143-47, 157. As a result of Holmes’ statements to law enforcement, Rodwell was arrested on May 22, 1981 and charged with first-degree murder. Tr. 5/120. On May 26, 1981, Rodwell was placed in the Billerica House of Corrections to await trial. Tr. 5/112. While at Billerica, Rodwell met David Nagle, who had been arrested on April 22, 1981 on Suffolk Armed Robbery charges. Tr. 4/115. (D.N. Appr. Brght. Dist. Ex. 109.) Nagle already had a history of working with law enforcement and being rewarded for his cooperation at this time. (W.C. Aff. Ex. 106.) After decades of attempts by Rodwell, it is now firmly established that Nagle was a paid informant for the DEA from May 1979 until at least February 1981 and a registered informant up through the Spring of 1981. (Mour. Tr. Ex. 97 at 2142-3, 2254.) Further, Somerville Police knew Nagle was a DEA informant and informed a bail commissioner of that fact, and it follows that the Middlesex District Attorney’s office must also have known of Nagle’s status as a DEA informant as they would have been present for the bail hearings and allowed someone with Nagle’s violent record to be released on personal recognizance and subsequently $500 despite a warrant outstanding for close to two months. Id. at 2244-5. After his April Suffolk arrest, Nagle was placed in Billerica, a Middlesex County jail. Tr. 4/114. (D.N. Appr. Brght. Dist. Ex. 109 at 2485.) When he first entered Billerica, Nagle was 22 placed in the hospital, a free-access dormitory, with Holmes. Tr. 4/130, 165. After leaving the hospital, Nagle and Holmes were placed in the same cellblock, and then after Holmes left Billerica, Rodwell was placed in the cell across from Nagle. Tr. 4/140, 166. On August 6, 1981, in their only recorded meeting, Nagle told Spartichino that Rodwell spontaneously provided incriminating details of his alleged involvement in the Rose murder to Nagle and other inmates. Tr. 4/120, 153-4. (D.N. MSP Int. Ex. 66 at 1156.) Nagle testified that he began speaking with Rodwell about the Rose murder at the end of May or the first week of June 1981, and that the last time he spoke with Rodwell about the murder was at the “end of June” 1981. Tr. 4/115, 118, 131, 152-3. Armed with Nagle’s statements corroborating Holmes’ story, the Commonwealth proceeded to trial against Rodwell. May 1981-November 1981: Pretrial According to both the pretrial motion hearing and the trial transcript, while Holmes was cooperating with the FBI and Middlesex County, Nagle began cooperating with the police on his Suffolk case. Tr. 4/147; (PrTr. Mot. Hr’g Ex. 2 at 27.) According to Nagle, he never spoke to the Suffolk D.A. in his case, and he met with the police “one, and one time only, on May 18 or 19 1981,” the same day as his arraignment. Tr. 4/146-47; (PrTr. Mot. Hr’g Ex. 2 at 27; D.N. Dkt. Brght. Dist. Ex. 108.) At the same time, Nagle allegedly requested a transfer from Billerica to Greenfield. (PrTr. Mot. Hr’g Ex. 2 at 27-29; D.N. MSP Int. Ex. 66 at 1187-88.) However, Nagle was not transferred until two months later (July 14, 1981), after meeting with Spartichino. Tr. 4/142, 153. In Rodwell’s pre-trial motion for exculpatory evidence, he specifically requested the probation and criminal records of all prosecution witnesses, and any evidence which may be used to impeach or discredit prosecution witnesses including any promises, rewards, or 23 inducements (PRIs) provided to said witnesses. (Defendant’s Pretrial Motion for Discovery, hereinafter “PrTr. Mot. Disc. Ex. 1” at 2-3.) Rodwell additionally requested any evidence of Nagle’s past state cooperation or payments received as a government informant. Id. at 4. Although the Commonwealth acknowledged that Nagle had “cases pending” in Middlesex and Suffolk Counties, the Commonwealth withheld the favorable treatment received by Nagle regarding a May 9, 1980 arrest for Armed Robbery and kidnapping in Middlesex as well as failed to include the docket numbers or any identifying information for that case in their certificate of compliance. (Commonwealth’s Pretrial Discovery Provisions, hereinafter “Disc. Prov. Ex. 96” at 1876-77, Affidavit of Counsel.) Nagle was arrested at DEA headquarters by Somerville Police who then informed the bail commissioner that Nagle was a DEA informant, proving that Somerville police knew that Nagle was paid DEA informant. (Mour. Tr. Ex. 97 at 2243-4.) On October 28, 1981, A.D.A. Siegel (for the Commonwealth) stated to the Court that “the Commonwealth certainly will and has handed over exculpatory evidence, any exculpatory evidence it received. . .” (PrTr. Mot. Hr’g Ex. 2 at 12.) (emphasis added) However, on June 12, 1981, roughly five months before A.D.A. Siegel insisted the Commonwealth was fully compliant with the discovery order, Nagle’s attorney was in Middlesex Superior Court for Nagle’s bail hearing on the May 9, 1980 arrest, during which she expressly confirmed Nagle’s prior dealings with law enforcement10. (D.N. Bail Midd.’81 Ex. 29 at 768-69.) Counsel for Rodwell moved to suppress Nagle’s statements on the grounds that he was an agent of the government. (Pretrial Motion to Suppress Nagle’s Statements, hereinafter “Mot. 10 My client has been held in Middlesex on Suffolk bail for protection purposes in that he has given a great deal of information to the Suffolk DA’s office and actually to some Middlesex police as well, regarding other matters. On the Suffolk cases they intend to transfer him to the western part of the state for safety purposes.” (D.N. Bail Midd.’81 Ex. 29 at 768-69.) 24 Supp. Ex. 68” at 1195.) The Commonwealth’s opposition to defense’s motion to suppress Nagle’s statements sidestepped the issue of Nagle’s status as a government informant. (PrTr. Mot. Hr’g Ex. 2 at 29-30.) Rather than confirming or denying their knowledge that Nagle was a government informant, the Commonwealth relied solely on the structure of defense’s motion and whether or not it conformed to the rules. Id. The Commonwealth scoffed at Attorney Cintolo (Rodwell’s trial counsel) for his “inference” that Nagle was a government agent, all while hiding the fact that Nagle had been a documented DEA informant for almost two years prior to being placed in Billerica, stating “from the fact that he was transferred to Greenfield, the inference is drawn that he’s an agent of the government.” (PrTr. Mot. Hr’g Ex. 2 at 29; Commonwealth’s Opposition to Motion to Suppress Nagle’s Statements, hereinafter “Opp’n Mot. Supp. Ex. 54” at 1036-37; Mour. Tr. Ex. 97 at 2142-43.) Furthermore, the Commonwealth held Nagle’s transfer out to the Court as one involving only Suffolk County officials, failing to disclose the fact that Spartichino not only facilitated Nagle’s transportation, but also personally drove him to Greenfield11, stating that Nagle’s transfer had “nothing to do with Middlesex [County] officials.”12 (Opp’n Mot. Supp. Ex. 54 at 1035-36.) The Commonwealth claimed that Attorney Cintolo’s affidavit accompanying the motion to suppress failed to rely on personal knowledge. Id. at 1037. The Commonwealth boldly undercut Cintolo for his lack of personal knowledge of the facts, all while withholding their knowledge of the fact that Nagle had been a paid DEA informant since 1979, Nagle had a secret meeting with Spartichino at a Suffolk lockup on April 22, May 1 or 18, or June 22, 1981, and 11 [The transfer] is apparently the basis of Defendant’s Motion to Suppress since Mr. Cintolo infers and assumes that David Nagle had all along been a government agent merely because arrangements for his transfer had been made earlier by Suffolk County Officials. (Opp’n Mot. Supp. Ex. 54 at 1035.) 12 Pages 42 and 43 of [Nagle’s state police interview] discussed Mr. Nagle’s move to Greenfield and they indicate quite clearly that Mr. Nagle’s transfer to Greenfield had nothing to do with Middlesex officials, but was arranged by Mr. Nagle’s attorney with Suffolk County Assistant District Attorney Robert Nelson. Id. 25 Spartichino personally drove Nagle from Billerica to Greenfield on July 14, 1981. (Mour. Tr. Ex. 97 at 2142; D.N. Int. Ex. 98 at 2321, 2399; D.N. Dkt. Suff.’82 Ex. 30 at 773-4; D.N. Dkt. Brght. Dist Ex. 108 at 2480-3.) The Court agreed with the Commonwealth, denying the motion outright and refusing to hold an evidentiary hearing on the issues raised therein, stating that those matters could be raised on cross-examination. (PrTr. Mot. Hr’g Ex. 2 at 37-8.) After the Commonwealth minimized the significance of Nagle’s transfer on direct examination, Cintolo began his cross-examination of Nagle, during which he sought to cross Nagle on his prior cooperation with law enforcement. Tr. 4/150-51. Cintolo cited to Walther, 652 F.2d 788 in support of cross-examining Nagle on his cooperation with law enforcement. As noted above, the Court stated that Nagle’s status as an informant may be the subject of cross examination. (PrTr. Mot. Hr’g Ex. 2 at 37-8; Mot. Supp. Ex. 68 at 1195.) However, the Court did not permit defense to cross-examine Nagle on his agency status, stating: I have read this Walthier (sic) case. That was a highly specialized case of a regular paid informant for the Drug Enforcement Administration. And that was a case with a regular, settled, long-standing practice of the informant being encouraged and paid by the DEA for his information. This is not that situation. This should properly have been, in any event, the subject of a motion, a pretrial motion, which it was not. This does not go to the merits of the case and so I’m not going into any issue as to whether or not he’s a Governmental agent. There has been insufficient showing. Excluded. Tr. 4/150-51. (emphasis added) The newly discovered evidence proves that Nagle did, in fact, meet each and every element of the Walther case that Judge Dimond relied upon in prohibiting cross-examination of Nagle’s status as a government agent. The government stood idly by and failed to correct the incorrect facts upon which the Court based its decision. New Evidence: Nagle’s Perjured Testimony on Law Enforcement Contacts At Rodwell’s trial, Nagle testified that the first law enforcement officer he spoke to about the Rose murder was Lt. Spartichino. Tr. 4/140-42. Nagle claimed that he hadn’t contacted 26 Spartichino directly; rather, while at Billerica he telephoned William McDermott of the Brookline Police, “a mutual friend of [Nagle’s] and [Spartichino’s]” who arranged for Spartichino to speak with Nagle. Id. Nagle testified that during his initial meeting with Spartichino, Spartichino promised that he would speak on Nagle’s behalf and write a letter to the D.A.’s handling his pending cases regarding his cooperation in the Rodwell case13. Tr. 4/143. However, the new evidence shows that Nagle never contacted McDermott about the Rose murder. (W.M. Aff. Ex. 99 at 2423.) Instead, Spartichino sought out Nagle in a Suffolk lockup either on April 22, May 1 or 18, or June 22, 1981, and Spartichino actually spoke to the judge on Nagle’s behalf, not simply the D.A. (D.N. Dkt. Suff.’82 Ex. 30 at 773-4; D.N. Dkt. Brght. Dist. Ex. 108 at 2480-3; Mour. Tr. Ex. 97 at 2274; D.N. Int. Ex. 98 at 2321.) On July 14, 1981, five days after speaking with Spartichino, the transportation for the transfer that had allegedly been approved since May 18, 1981 was arranged and Nagle was transferred to Greenfield. Tr. 4/113. Nagle then provided a formal, recorded statement to Spartichino on August 6, 1981. (D.N. MSP Int. Ex. 66 at 1145.) At the conclusion of the interview, when asked if there was anything else that Nagle wanted Spartichino to know, Nagle responded “[n]o, just that, I mean, we’re all in this together.” Id. at 1186. (emphasis added) As mentioned above, the Commonwealth cited to Rodwell’s reliance on Nagle’s transfer from Billerica to Greenfield as evidence of his government agency and denounced its significance, but failed to mention that Spartichino personally drove him from Billerica to Greenfield.14 The circumstances surrounding Nagle’s transfer were at issue during trial. Not only 13 Nagle testified that Spartichino intended to write a letter on his behalf. Tr. 4/143. However, according to both Spartichino’s affidavit and the District Attorney’s discovery provision, Spartichino informed Nagle that he intended to speak to the D.A.’s on his behalf. (T.S. Aff. Ex. 5 at 127; Disc. Prov. Ex. 96 at 1876.) 14 White: Did Spartichino help you with the transfer, too? Nagle: Yeah. He drove me -- there was no transportation -- the sheriff didn’t want to waste all the gas or something.. . . 27 was Nagle transferred a mere five days after speaking with Spartichino, but his reasons for wanting to be transferred were contradicted by his own testimony. At the pretrial motion hearing, the A.D.A. stated that Nagle had requested to be transferred due to concern for his safety, but the transfer was supposedly requested before Rodwell was even arrested. (PrTr. Mot. Hr’g Ex. 2 at 27.) Additionally, at Nagle’s June 12, 1981 Bail Hearing, his attorney stated that “[o]n the Suffolk cases, they intend to transfer him to the western part of the state for safety purposes.” (D.N. Bail Midd.’81 Ex. 29 at 768-69.) During Rodwell’s November 1981 trial, however, Nagle stated that he had requested a transfer because he wished to be closer to his family, and that it wasn’t until after he spoke to Spartichino, allegedly July 9, 1981, that he wanted to be transferred for his safety. Tr. 4/162-63, 193. Withheld Evidence: Nagle was a Paid DEA Informant On June 4, 2012, Rodwell’s counsel received the transcripts of U.S. v. Mourad, et al., Docket No. SDNY 82-CR-00769, from the National Archives and Records Administration. (Mour. Tr. Ex. 97 at 1880; Affidavit of Counsel.) Nagle testified at the Mourad trial that he was privy to a jailhouse confession- his second in just over a year. (Mour. Tr. Ex. 97 at 2206-07.) During his testimony, exculpatory information that was withheld from Rodwell was indisputably confirmed by federal government documents: David Nagle was a paid DEA informant at the very least from 1979 to 1981. Id. at 2142-43. Nagle testified that on May 9, 1980, while working as a paid DEA informant, he was arrested by the Somerville Police at DEA headquarters for a Middlesex Armed Robbery and Kidnapping. (Mour. Tr. Ex. 97 at 2243-4.) According to Nagle, he “went over to [DEA headquarters] to get some money, and [he] was arrested.” (Mour. Tr. Ex. White: . . .You were transferred July 14, 1981, five days after speaking with Spartichino, who you claim arranged for the transfer. That’s what you testified to. Nagle: He gave me -- he was the transportation. (D.N. Int. Ex. 98 at 2399.) 28 97 at 2244.) Nagle was released that same evening after the Somerville Police informed the bail commissioner that Nagle was working for the DEA: Counsel: Did the police also tell [the bail commissioner] that you were working with the Drug Enforcement Administration? Nagle: I believe so, yes, sir. Counsel: As a result of that you were released on bail, correct? Nagle: Yes, sir. Counsel: Because you were working with the Drug Enforcement Administration? Nagle: Yes, sir. Counsel: Subsequent to your release on bail at or around May 9, 1980, you went to the Drug Enforcement Administration and they gave you some money, correct? Nagle: Yes, sir. Counsel: Did they ever talk to you about your Armed Robbery-kidnapping case? Nagle: Yes, sir. Counsel: Did they tell you not to do it again? Nagle: The person that was armed robbed and kidnapped was a person that had been known to some of the police as a drug dealer. Id. at 2245. (emphasis added) Nagle’s response shows that the Somerville Police knew without question that Nagle was a DEA informant. Nagle returned to DEA headquarters the following day, after his release on personal on an armed robbery, where he was paid seventy-five dollars. Id. at 2244. Nagle testified in Mourad that while he was a paid DEA informant, he was committing other crimes.15 Records show that Nagle was arrested on May 9, 1980, but was released on personal recognizance from the Somerville District Court. (D.N. Dkt. Midd.’80 Ex. 69 at 1201.) On May 9, the case was continued for a probable cause hearing to take place on June 9, 1980. Id. On June 9, Nagle defaulted, but a default warrant was not issued for three weeks, until June 27, 1980. Id. On August 26, 1980, after being arrested on different charges, Nagle’s default was 15 Counsel: Nagle: Counsel: Nagle: Counsel: Nagle: You received money from the Drug Enforcement Administration periodically throughout the rest of 1980, correct? Yes, sir. Did you commit any crimes – In 1980, yes, I did. Other than the Armed Robbery kidnapping? Yes, sir. (Mour. Tr. Ex. 97 at 2246.) 29 removed and he was released on $500 cash bail. (D.N. Dkt. Midd.’80 Ex. 69 at 1201.) On June 12, 1981, after having been arrested in Suffolk and housed at Billerica, Nagle surrendered his bail, at which point Nagle’s attorney informed the Court that Nagle had “given a great deal of information” to Suffolk and Middlesex law enforcement. (D.N. Bail Midd.’81 Ex. 29 at 768-69.) During the Mourad trial, both the A.U.S.A. and the defense used exhibit “3554G, the DEA form 356 regarding payments to Nagle,” a written record of Nagle’s DEA payments from his informant file, along with two other exhibits, “3354A, dated February 1, ’83, the debriefing of David Nagle by Agent O’Brien” and “3554D, O’Brien’s handwritten note regarding Nagle.” (Mour. Tr. Ex. 97 at 2209.) The last date on Nagle’s DEA form 356 for payments was February 9, 1981. Id. at 219697, 2247. Although the last documented payment to Nagle was in February 1981, when reviewing Nagle’s DEA informant file, the judge stated, “I looked at the informant file. It absolutely cuts off in the spring of 1981.” Id. at 2254. (emphasis added) Nagle testified at Rodwell’s trial that his conversations with Rodwell began in late May or early June 1981 (the spring) and concluded at the “end of June.” Tr. 4/115, 118, 131, 152-3. Rodwell’s alleged statements suspiciously fell in the same time frame that Nagle was in jeopardy of losing his status as a paid informant. Nagle also testified in Mourad that after his and the Mourad defendants’ failed escape attempt, he asked the DEA to relocate his family, which they did, in addition to providing his wife $2000 cash. (Mour. Tr. Ex. 97 at 2291-92, 2303.) Although the informant file provided in Mourad suggested Nagle’s documented status as an informant for the DEA “cut off” in the spring of 1981 (and had a recorded cash payment as late as February 1981), Nagle was actually debriefed in February 1983, as illustrated by the government’s 1983 DEA report stating that Nagle was “deactivated.” Id. at 2254. The A.U.S.A. 30 also claimed that Nagle was deactivated in 1981, however she did not reference any reports supporting her claim. Id. at 1886. Furthermore, referencing the DEA form 356, defense counsel asked Nagle, “So you have also given information to DEA beyond that date, the last date there [February 9, 1981], isn’t that correct?” Nagle responded, “Yes, sir.” Id. at 2196-97. The DEA form 356 that was used as an exhibit during the Mourad trial specifically indicated dates on which Nagle was paid by the DEA. However, Nagle testified at the Mourad trial that the list of dates on the form 356 was not an exhaustive list of dates on which he informed for the government. Id. Moreover, there appeared to be a dispute between the parties at the Mourad trial as to whether the documents regarding a possible deactivation were even referring to Nagle or not. Id. at 1886-88.16 Even the judge said that there was “a host of problems” with the documents on Nagle provided by the government, stating “there is the initial confusion created in the reference to SCC 79-0030 as somebody different from Nagle. Now you say, [AUSA] Patterson, it is the same, that they are one in the same, namely, Nagle.” Id. at 1892. Although the A.U.S.A. insisted that Nagle was deactivated, she later claimed that Nagle was never reactivated, even though Nagle was a DEA informant at some time during each year from 1979 to 1984. (Mour. Tr. Ex. 97 at 1886-88, 2142-43, 2207-10, 2254; Murph. Tr. Ex. 81 at 1443-1446, 1625-28); In response the A.U.S.A.’s claim that Nagle was not reactivated, the Mourad defense team had to specifically cite to an unambiguous “reactivation” report dated November 9 (no year was mentioned, but the trial took place in March 1983, so it had to be 1981 or 82, as these are the only dates before the Mourad trial but after the alleged spring 1981 16  The  A.U.S.A.  insisted  that  Nagle  was  deactivated  sometime  during  1981.  Defense  counsel  in  Mourad   believed  the  references  to  SCC  79-­‐0030  because  the  document  counsels  and  the  judge  were  reviewing  had  “it   listed  on  there  as  if  the  person  providing  the  information  is  someone  other  than  Nagle.”  (Mour.  Tr.  Ex.  97 at   1886.)   31 deactivation date alleged by the AUSA). (Mour. Tr. Ex. 97 at 1886-88, 2243.) Due to the lack of clarity as to details of Nagle’s DEA file from Mourad, the omission of exact dates that Nagle may or may not have been deactivated or reactivated, and the inability of Rodwell’s counsel to access Nagle’s DEA informant file, the only certainty gathered from Mourad is that Nagle was a DEA informant from 1979 until spring, 1981 and at some point in both 1982, 1983 and 1984. Id. at 1986-88, 2142, 2254. In a 1984 case in which Nagle was a DEA informant, Agent Ed O’Brien wrote to the parole board on Nagle’s behalf stating that Nagle was a DEA informant. According to journalist Joseph Bargmann, the letter indicated Nagle was O’Brien’s informant from 1981 to 1983. (J.B. Aff. Ex. 60 at 1069; Murph. Tr. Ex. 81 at 1555.) Finally, Nagle testified during the Mourad trial that although he was committing crimes during his tenure as a DEA informant, the DEA was not aware of such crimes.17 However, during the recorded interview, Nagle stated that he would work with DEA Agent Ed O’Brien and that O’Brien would provide Nagle with the names of drug dealers who had large quantities of drugs. (D.N. Int. Ex. 98 at 2339.) Then, at the behest of O’Brien, Nagle would rob the drug dealers and give O’Brien his “take.” Id. Nagle’s ploy to re-establish himself with the DEA by contriving a confession against Rodwell worked to his advantage; Nagle continued working for the DEA after testifying in Mourad when he was employed by Agent Ed O’Brien to work undercover in 1983. (Murph. Tr. Ex. 81 at 1443-46, 1626.) It is apparent that being a DEA informant was crucial to Nagle, a drug 17 Counsel: Nagle: Counsel: Nagle: Counsel: Nagle: Counsel: Nagle: You committed crimes in 1980? Yes, sir. That was while you were getting money from the DEA, wasn’t it? Yes, sir. So you committed crimes on your own while you were a paid informant for the DEA? Yes, sir. You were getting money from both ends for crimes you committed and the DEA, correct? Correct. (Mour. Tr. Ex. 97 at 2201.) 32 addict with all of the problems faced by such a lifestyle. Using Rodwell as a stepping-stone to regain his position with the DEA was a critical and necessary tool for Nagle, regardless of the end result of condemning an innocent man to life in prison for a crime he did not commit. In the recorded interview, Nagle said he had not had any dealings with the DEA before the Federal Marshals took him to New York to testify in Mourad. (Mour. Tr. Ex. 97 at 2346.) When asked about DEA agents Duffy and Reilly, two names he had mentioned in a 1991 magazine article, Nagle claimed that Duffy and Reilly accompanied McDermott to Nagle’s home in April 1979 because his name came up in a drug investigation, but that was the only time he had anything to do with either of them. Id. at 2333-4. During the Mourad trial, however, Nagle testified that when he began working as a DEA informant he was working for Al Reilly whose partner was Al Duffy. (Mour. Tr. Ex. 97 at 2200.) Nagle further testified that when Duffy and Reilly were transferred to Springfield he began working for another DEA agent named James Sullivan. Id. at 2200, 2263. In 2006, Nagle wrote a letter18 to the Middlesex D.A.’s Office which stated, in part, “my deal to testify in a murder case and a Federal Court on some international issues. My deal was that I not be put in ‘harm’s way’ but D.O.C. is going back on their word. I am dying of liver failure. I never killed anyone except my drug use killing myself. I need your office to appoint an attorney so I can go forward with a Revise & Revoke. I hope you can help because if D.O.C. doesn’t live up to the bargain, I’ll have to go back on my deal.” (D.N. Ltr.’06 Ex. 88 at 1831.) During the recorded interview, Nagle stated that he had never testified in any murder case other than Rodwell’s and acknowledged that he was referring to a deal in Rodwell’s case. (D.N. Int. Ex. 98 at 2407.) Nagle then stated that the deal he was referring to was regarding a 1986 case, 18  Nagle’s  2006  letter  to  the  Middlesex  D.A.’s  office  was  presented  as  evidence  and  argued  in  Rodwell’s  2007   Dwyer  Motion  for  Records.  (Mot.  R.  Ex.  22.)  The  Commonwealth  submitted  a  memo  to  the  Court  in  opposition   to  Rodwell’s  motion  (Opp’n  Mot.  R.  Ex.  23),  but  the  Court  has  not  ruled  on  either  motion.  (J.R.  Dkt.  Ex.  44.)   33 even though he had only testified in one murder trial. Id. When pressed during the interview on what Nagle meant when he wrote that he had a “deal to testify in a murder case,” his answers varied. Initially, Nagle stated that his “deal” was to be put in a “certain institution.” Id. at 2408. Nagle then backtracked, stating that his “deal” was that Spartichino would speak on his behalf. Id. at 2409. However, Nagle had already indicated that Spartichino had spoken on his behalf in 1982 and that he was transferred to Greenfield in 1981, so writing a letter that his deal had not been fulfilled would make no sense if these were the only conditions of the deal. Id. at 23802386. Nagle also testified to receiving those benefits at Rodwell’s trial, although at the time, he did not refer to them as a “deal.” Tr. 4/143, 164. Attorney White asked Nagle why, if the deal had been satisfied in 1981 and 1982 when Spartichino spoke on his behalf and facilitated his transfer (the only benefits Nagle claimed to have received for testifying against Rodwell), he would write a letter in 2006 claiming that his deal to testify in a murder case had not been fulfilled. Nagle did not answer the question in over three minutes of questioning. (D.N. Int. Ex. 98 at 2364, 2408-09.) Nagle’s Rewards On April 22, 1981, Nagle was placed in Billerica as a result of being arrested in Suffolk for two counts of Armed Robbery. Tr. 4/114. In stark contrast to the May 1980 Middlesex case, which resulted in Nagle being released on personal recognizance and then on $500 bail after the issuance of a default warrant, Nagle’s bail in Suffolk was set at $50,000 for Armed Robbery, leading to Nagle being held in lieu of bail at Billerica- a Middlesex jail. (Mour. Tr. Ex. 97 at 2195; D.N. Appr. Brght. Dist. Ex. 109 at 2485.) At the pre-trial conference for the Suffolk charges, a trial date was set for September 29, 1981. (David Nagle Pretrial Conference Report Suffolk Docket 035529-32, hereinafter “D.N. PTC Suff. Ex. 77” at 1225.) The case was 34 continued, however, and Nagle wasn’t back in Court until after testifying against Rodwell for the Commonwealth. (D.N. Dkt. Suff.’82 Ex. 30 at 773-4.) On February 26, 1982, Nagle pleaded guilty to his Suffolk Armed Robbery charges. (D.N. Plea Suff.’82 Ex. 25 at 731.) During the plea hearing, Nagle’s attorney requested that “in addition to the written material that was shown to [the Court] in the discussion [they] had previously, there is a gentleman who would like to approach the sidebar with Mr. Nelson, myself, and Mr. Spartichino.” Id. at 741. The judge agreed and spoke privately with Spartichino and the other man off-the-record and without either counsel present. Id. After the sidebar, Nagle was sentenced to 7-12 years at MCI-Walpole to be served at Greenfield, of which he served two and a half years before being paroled. (D.N. Plea Suff.’82 Ex. 25; David Nagle Plea Suffolk Docket 054341-47, hereinafter “D.N. Plea Suff.’85 Ex. 31” at 797-98.19) Suffolk A.D.A. Robert Nelson was furious with the disposition as he had recommended a fifteen to twenty year sentence based on Nagle’s extensive history and multiple convictions of Armed Robbery. (R.N. Aff. Ex. 79 at 1306.) In his 1996 affidavit20, Nelson stated “I definitely feel that David Nagle had been ‘rewarded’. I believe that there is no way that with David Nagle’s record he would have ever received a sentence of 7-12 years based on his prior record of twenty Armed Robberies.” Id. When speaking to Rodwell’s investigator in 1996, Nelson indicated that he had put a lot of time into the prosecution of Nagle and had him “cold” because Nagle already had 20 armed 19  Nagle  was  paroled  9/28/84.   20 ADA Robert Nelson’s affidavit was presented as evidence and argued in Rodwell’s fourth motion for new trial in 1997. In her ruling on Rodwell’s appeal from denial of the motion, Justice Marshall wrote that Nagle has been amply impeached at trial and ADA Nelson’s affidavit was not a new claim and that in Rodwell v. Fair, 834 F.2d 240 (1987) the Court recognized that a police officer assured Nagle that he would speak on Nagle’s behalf. The affidavit states, in relevant part: ‘I believe that the proper procedure for this case should have been for Lt. Spartichino to come and speak with me or one of the upper managers well ahead of David Nagle’s sentencing date, and explain to us what he wanted for David Nagle. . .This was not done. Lt. Spartichino showed up a few minutes before the hearing, talked to the judge, got what he wanted and took off. I checked with my superiors and none of them had any knowledge of what Lt. Spartichino was going to do that day.’ (R.N. Aff. Ex. 79 at 1306.) (emphasis added) 35 robberies on his record which “could have easily topped over 100 years of jail time.” (Forbes International Investigations Report, hereinafter “Forbes Rep’t Ex. 95” at 1869-70.) Nelson indicated that Spartichino, while dressed in civilian clothes, approached the judge and spoke with him for 5-10 minutes and immediately left the courtroom after Nagle’s 7-12 year sentence was handed down. Id. at 1870. Nelson had been with the D.A.’s office for 4 years and had never seen a case where a police officer asked the judge to reduce a defendant’s sentence as a “reward” for assisting on another case. Id. Nelson believed Nagle had been rewarded; there was no way with Nagle’s record he could have ever received a 7-12 year sentence (rather than 18-20 or 20-30 years) at a house of correction (rather than a state prison) based on his prior record. Id. Nelson was also unaware that any part of the transcript may have been impounded. He stated that if it was, he should have been made aware so that he could review it to see what was said and why it was being impounded. Id. at 1871. Nelson stated that “it appear[ed] to him that Spartichino and Nagle definitely had a relationship because he ha[d] never seen a police officer go to such an extreme for a defendant in the 20 years he’[d] been an attorney.” Id. When Rodwell attempted to complete the record of Nagle’s 1982 Suffolk plea by requesting access to those “written materials” provided to the judge by Nagle’s counsel that are not in the case file at the Suffolk County Archives and have never been provided to Rodwell (Affidavit of Counsel), the Commonwealth responded that “Rodwell anticipates (correctly, as it turns out) that none of these documents have been retained.” (Commonwealth’s Opposition to Motion for Post Conviction Discovery, hereinafter “Opp’n to Mot. P.C. Disc. Ex. 80” at 1315.) On February 26, 1982, the same day that Nagle pleaded guilty in Suffolk and received a 7-12 year sentence for Armed Robbery, Nagle waived a jury trial and was found guilty of the May 1980 Armed Robbery and kidnapping in Middlesex. (D.N. Dkt. Midd.’80 Ex. 69 at 1201-3; 36 D.N. Midd. F. Ex. 86 at 1754-55, 58, 64-64.) In addition to approaching the judge in an off-therecord sidebar in Suffolk on February 26, 1982, Spartichino also appeared at Nagle’s Middlesex bench trial by presenting Nagle to the Court for testimony. (David Nagle Writ of Habeas Corpus Docket 80-3006-7, hereinafter “D.N. Writ. Midd. Ex. 46” at 943.) The sentencing hearing for Nagle’s Middlesex conviction was scheduled for March 30, 1982. (D.N. Dkt. Midd.’80 Ex. 69; D.N. Midd. F. Ex. 86 at 1754-55.) On the first Monday of March 1982, Nagle was indicted on a separate Middlesex case 82-1058, on a year old Armed Robbery from April 18, 1981. (D.N. Midd. Ind.’82 Ex. 75 at 1219.) On March 30, 1982, Nagle pleaded guilty in Middlesex to the April 1981 Armed Robbery and received a 7-12 year sentence on both the April 1981 Armed Robbery (82-1058) and the May 1980 Armed Robbery and kidnapping (80-3006-7), to run concurrent with the Suffolk disposition set on February 26, 1982. (D.N. Dkt. Midd.’80 Ex. 69 at 1201; Ex. D.N. Midd. F. 86 at 1775.) In total, Nagle received only 7-12 years for six Armed Robberies and one Kidnapping. Nagle was paroled on September 28, 1984 (D.N. Plea Suff. ’85 Ex. 31 at 797-98). Although both the February and March 1982 dispositions directly involved Spartichino, Spartichino wrote an affidavit21 to the Court in 1983 indicating that Attorney Cintolo had been effective as counsel by cross-examining Nagle on the fact that in return for Nagle’s information against Rodwell, Spartichino had only promised to write a letter to the D.A.’s on Nagle’s behalf and to arrange for Nagle’s transportation to Greenfield. (T.S. Aff. Ex. 5 at 127.) As noted above, this affidavit was in the context of whether or not trial counsel was effective. By stating that 21  Spartichino’s  affidavit  was  presented  as  supporting  evidence  in  the  Commonwealth’s  opposition  to   Rodwell’s  first  motion  for  new  trial  in  1983  in  the  context  of  whether  or  not  trial  counsel  was  effective.   (Opp’n  1st  Mot.  N.  Tr.  Ex.  48;  T.S.  Aff.  Ex.  5.)  In  denying  Rodwell’s  motion,  Judge  Dimond  relied  on  the   credibility  of  Spartichino’s  affidavit  while  discrediting  the  affidavits  submitted  to  the  Court  by  Rodwell.  (Ct.’s   Den.  Def.’s  1st.  Mot.  New.  Tr.  1983.  Ex.  6  at  132.)  No  Court  has  been  presented  with  the  evidence  now   presented  in  this  motion  that  illustrates  the  less  than  forthcoming  claims  by  Spartichino  in  his  affidavit.     37 Nagle was effectively cross-examined due to the fact that trial counsel elicited the information about Spartichino arranging transportation and offering to speak to the District Attorneys on Nagle’s pending charges, Spartichino was essentially telling the Court that Nagle’s statements were true and there was no further information to be discovered. Noticeably absent from Spartichino’s affidavit was mention of his off-the-record sidebar with the judge at Nagle’s 1982 Suffolk plea which resulted in an extremely favorable sentence for four armed robberies. (T.S. Aff. Ex. 5; D.N. Plea Suff.’82 Ex. 25 at 741.) Furthermore, Spartichino failed to mention that, on the same day that he approached Nagle’s Suffolk judge, he presented Nagle for his appearance in the Middlesex Court (in accordance with a writ to the Greenfield House of Correction) and paved the way for Nagle to wrap up his Armed Robberies and Kidnapping from Middlesex with a concurrent sentence from the Suffolk case22. (T.S. Aff. Ex. 5 at 127; D.N. Writ. Midd. Ex. 46 at 943; D.N. Midd. F. Ex. 86 at 1754-55, 58, 64-65, 75.) Finally, Spartichino neglected to mention that he personally drove Nagle from Billerica to Greenfield three months before Rodwell’s trial. (D.N. Int. Ex. 98 at 2399.) The Commonwealth relied heavily upon the assertion that Nagle was adequately cross-examined in its opposition to Rodwell’s first motion for new trial, stating “it should be remembered in this connection that Attorney Cintolo effectively and adequately cross-examined Mr. Nagle concerning his cooperation with law enforcement authorities in his pending cases, his prior statement to Lt. Spartichino, and his ability to be transferred out of Billerica after making statement (sic) to Lt. Spartichino.” (Opp’n 1st Mot. N. Tr. Ex. 48 at 967-68.) Spartichino’s affidavit was relied upon by the Court in denying Rodwell’s first motion for new trial. (Den. 1st Mot. N. Tr. Ex. 6 at 132.) In ruling on the motion, Dimond, J. specifically 22  There  are  no  transcripts  available  for  either  February  26,  1981  or  March  30,  1981  (See  Affidavit  of  Counsel)   nor  any  means  of  obtaining  the  name  of  court  transcriber  for  that  day.   38 referenced the weight of Spartichino’s affidavit, stating, “considering all matters contained in the affidavits, including that of Detective Lieutenant Thomas M. Spartichino submitted by the Commonwealth, I find that Mr. Cintolo’s conduct did not fall ‘below that which might be expected from the ordinary fallible lawyer.’” Id. (emphasis added) Perjury at Trial Nagle admitted to his half-brother that he was worried about being convicted for perjury in the Rodwell trial. (W.C. Aff. Ex. 106 at 2464.) In addition to the newly discovered perjury, both Holmes and Nagle committed perjury at trial: I. At trial, Holmes testified that before picking up Rose, he and Rodwell went to Rodwell’s home where they met up with Anthony “Dapper” Corlito to pick up guns. Tr. 2/65-8. Holmes had not mentioned retrieving guns from Rodwell’s home in his May 4, 1981 police interview, nor did he mention it in his Grand Jury testimony. Tr. 3/55, 77. In Holmes’ original story, Corlito was already in Rodwell’s car when Holmes got in the car, and they made no stops on their way to Rose’s apartment.23 (F.H. MSP Int. Ex. 61 at 1078-83); II. Holmes testified that he drove with Rodwell to Revere to return the rental car that was used in the murder. Tr. 2/122. However, in Holmes’ original story to the police and the Grand Jury, he said that he did not know where Rodwell had rented the car. Tr. 3/79. Holmes had told Spartichino that he was having subs in Burlington with Rodwell on the day that Holmes later testified he went with Rodwell to return the car. Tr. 3/79-80. (F.H. MSP Int. Ex. 61 at 1083, 1009-10); III. Holmes testified that while driving to Rose’s apartment, Rodwell handed him a pair of gloves and said “here, wear these.” Tr. 3/84. In his state police interview and Grand Jury testimony, Holmes never mentioned wearing gloves, let alone being told by Rodwell to wear gloves on the day of the murder. Tr. 3/84. (F.H. MSP Int. Ex. 61 at 84-85); IV. In response to why he didn’t explain in his state police interview or to the Grand Jury about going to Rodwell’s apartment to pick up guns or about driving to the Revere rent-a-car, Holmes claimed that he had only just remembered those important details…the week the trial began. Tr. 3/162-64; V. Holmes testified that from where he was located in the Torino he could see the position of Rose’s body after the shooting. Tr. 2/91-93. Holmes’ statements about Rose’s body position were consistent with the crime scene photos of inside the car, but inconsistent with the crime scene photos from outside the car, which showed a fogged up rear window and showed that 23  Holmes  refers  to  “Dapper”  in  his  State  Police  Interview.  “Dapper”  was  later  determined  by  Lt.  Spartichino  to   be  one  Anthony  “Corlito”  Dapper,  deceased  (1979).  Tr.  4/78.   39 the angle of the two cars relative to each other (one to two car lengths away, Tr. 2/99) would have made it unlikely that Holmes could see Rose’s body.24 Tr. 2/100. (Tr. Ph. Ex. 71 at 1208; N. Ph. Ex. 72 at 1210); VI. Both Nagle and Holmes told law enforcement that Rodwell had disposed of multiple guns by tossing them over a bridge. (F.H. MSP Int. Ex. 61 at 1095-96; D.N. MSP Int. Ex. 66 at 115859.) As a result of the descriptions provided by Holmes and Nagle, two separate locations were searched by State Police divers at the direction of Spartichino, but neither dive recovered any weapons. Tr. 4/73-76; VII. Nagle told Spartichino and testified that Rodwell threw the guns over the North End Bridge by the locks. Tr. 4/127; (D.N. MSP Int. Ex. 66 at 1158-59.) Nagle testified that Rodwell laughed at the divers, saying they would never find the guns at the North End Bridge because there was “eighteen tons of steel down there.” Tr. 4/128. During 1970, Nagle worked construction for an entire year on the locks at the North End Bridge as part of the I-93 Extension. Tr. 4/182. Specifically, Nagle worked for the construction company’s Marine Division which was dredging25 at the base of the North End Bridge. Tr. 4/183; VIII. Nagle and Holmes both testified that on the night of the murder (after 11:00pm, according to Holmes), Rodwell visited his lawyer, Ira Feinberg, in the North End of Boston. Tr. 2/109121; 4/128. Attorney Feinberg, however, took the stand and testified that he could not remember Rodwell ever visiting him on December 3, 1978, and had especially never visited him after 10:00p.m. Tr. 5/75; IX. Nagle lied about his criminal record, stating that after July 1976 he was next arrested on September 11, 1980. Tr. 4/113. According to the Brighton Docket, Nagle was in fact arrested on April 22, 1980 for an Armed Robbery case that would have exposed Nagle as a DEA informant and revealed favorable treatment that he received from the Middlesex District Attorney’s Office and Somerville Police on this case. According to Attorney Reddington, Nagle’s probation record also shows charges and convictions on July 26, 1976, October 28, 1976 and January 7, 1979 ( See D.N. Dkt. Suff. Dist. Ex. 109; See also 4th Mot. N. Tr. Ex. 13 at 287)26; X. Nagle told Spartichino that Rodwell joked about getting pulled over for a speeding ticket on the night of the murder. Tr. 4/174. Rodwell took the stand and explained that when he was arraigned on the murder charge from 1978, he was also arraigned for a traffic violation from 1980. Tr. 5/121-22. (Newspaper Article re: Speeding Ticket, hereinafter “Art. Ex. 76” at 1223) The newspapers had written about the arraignment of both the murder and the traffic 24  At  trial,  Holmes  testified  that  once  Rose’s  car  began  rolling,  he  was  unable  to  see  Rose.  However,  a  close   inspection  of  the  photos  (ex.  71)  shows  that  Rose’s  head  was  still  below  the  headrest  and,  as  Holmes  testified,   against  the  driver’s  door.  Tr.  2/92.   25  Dredging  is  the  underwater  mining  of  materials  and  excavation  of  sediments  from  the  bottoms  of   waterways.  (U.S.  Army  Corps  of  Engineers  Education  Center,   http://education.usace.army.mil/navigation/dredging.html.)   26 “Nagle’s probation record shows charges and convictions on July 26, 1976, October 28, 1976, January 7, 1979, and May 9, 1980.” (4th Mot. N. Tr. Ex. 13 at 287.) 40 violation occurring at the same time27, without explaining the two-year gap between each offense. (Art. Ex. 76.) Other Exculpatory Material Since James Rodwell was incarcerated in 1981, the following additional exculpatory evidence has been discovered: I. The jury forewoman at Rodwell’s trial, Mary Chubbs, was a nurse who had treated Rodwell at a Lawrence hospital in 1977, during which time she developed a disliking for Rodwell and “did not like the man to begin with.” (Forbes Rep’t, Ex. 95 at 1871; Affidavit of Carolyn Rodwell, hereinafter “C.R. Aff. Ex. 92” at 1858; Rodwell Lawrence Hospital Records, hereinafter “J.R. Hosp. R. Ex. 94” at 1852-60; Court Documents re: Forewoman, hereinafter “Chubbs Ex. 105” at 2459.) Chubbs did not inform the Court of her predisposition toward Rodwell. Tr. 1/7, 27, 40-41. II. In 1991, a man named Charles Ryan told Somerville Police that he witnessed one Robert Winfield shoot and kill Louis Rose. (3rd Mot. N. Tr. Ex. 12 at 197-98.) David Mason of Forbes Private Investigation stated under oath in an affidavit that Ryan told him that while Ryan was hospitalized for alcohol-related problems, Ryan was “visited by the District Attorney and a Massachusetts State Police Trooper” who “interviewed him concerning the statement he had made to Officer O’Connor about the murder of Louis Rose” and “‘suggested’ to [Ryan] that one of his ‘options’ was to ‘plead the fifth’ when he was before the judge.” Ryan eventually claimed to have no memory of speaking with Somerville Police. (Affidavit of Investigator David Mason, hereinafter “D.M. Aff. Ex. 89” at 1835; Denial of Third Motion for New Trial, hereinafter “Den. 3rd. Mot. N. Tr. Ex. 90” at 1840); III. Jodi Marino28, the former girlfriend of Anthony “Dapper” Corlito (the alleged third accomplice to the Rose murder), wrote an affidavit in 2000 stating that in 1979, Robert Winfield threatened Corlito that “if he ever said anything about Somerville, [he] would be killed” and that Corlito was afraid of Winfield because Corlito “was with Winfield when he shot and robbed a drug dealer.” (Affidavit of Jodi Marino, hereinafter “J.M. Aff. Ex. 91” at 1846) Marino stated that years after Corlito was murdered, she “found out Jimmy Rodwell was convicted for the killing done by Winfield.” Id.; IV. On March 7, 2012, Francis Holmes a.k.a Francis Martin met with Rodwell’s investigator at MCI-Concord and denied ever knowing or speaking to Nagle, denied knowing State Trooper 27  The  June  1982  Woburn  Times  article  about  Rodwell’s  indictment  and  speeding  ticket  was  presented  to  the   Court  as  evidence  in  support  of  Rodwell’s  fourth  motion  for  new  trial  in  1997.  (4th  Mot.  N.  Tr.  Ex.  13;  Art.  Ex.   76.)     28  Jodi  Marino-­‐  Deceased     41 William Powers, denied knowing Brookline Police Officer William McDermott, denied knowing Billerica Inmate Robert Trenholm29, denied knowing Robert Winfield, and denied having been housed in the Hospital at Billerica. (Affidavit of Investigator Kevin Flynn, hereinafter “K.F. Aff. Ex. 83” at 1714); V. Photos of the murder scene show that it was unlikely that Holmes could see Rose’s body as he described it during his trial testimony. Tr. 2/91-93. (N. Ph. Ex. 72 at 1210); VI. In 2004, Reddington stated that it had been personally confirmed to him that the off-therecord sidebar transcripts of Nagle’s 1982 Suffolk guilty plea “do, in fact, maintain and, to this day, have the impounded conference at the bench that was recorded between the Court and Detective Spartichino.” (K.R. Aff. Un. Ex. 56 at 1052); VII. In 2006, Reddington contacted CPCS attorneys John Darrell, Martin Rosenthal, and Chief Counsel at the time, William Leahy. (K.R. Aff. Ex. 45 at 939.) Based on those contacts, Reddington confirmed to the Court that “…it is apparent that the canon of ethics presently prohibit Attorney Leahy or any counsel who represented…Nagle to obtain a copy of the file with any contemporaneous or subsequent writings memorializing promises, rewards or inducements from the prosecution to Nagle prior to his testimony in the Rodwell trial. Id. Reddington “confirmed from conversations with Attorney Lahey that, in fact, there are notations that may very well be exculpatory in the trial files which have been retrieved and are presently in the care, custody and control of [CPCS].” Id. PROCEDURAL HISTORY On June 15, 1981 a Middlesex grand jury returned three indictments alleging that on December 3, 1978, James Rodwell murdered Louis Rose, Jr., committed Armed Robbery from him, and unlawfully carried a firearm. (J.R. Dkt. Ex. 44 at 904.) On November 13, 1981, Rodwell moved to suppress statements allegedly made by him to fellow inmate David Nagle at Billerica arguing that based on Massiah, Nagle was acting as a government agent. (Mot. Supp. Ex. 68 at 1196.) Dimond, J. denied a hearing on the motion on procedural grounds that defense counsel’s affidavit was not sufficient to call for an evidentiary hearing, stating, “I’m going to 29  Recall  Holmes  testified  that  Trenholm  first  contacted  law  enforcement,  specifically  William  Powers,  in  his   behalf  in  April  1981.  Tr.  2/130-­‐2   42 deny an evidentiary pretrial hearing on the motion on the ground that the affidavit in support of the motion is insufficient, but, without prejudice, of course, to the defendant in the case in chief from raising as an element of defense the issues that he seeks to raise by this pretrial motion. So you can bring it up as the case goes in (sic).” (PrTr. Mot. Hr’g Ex. 2 at 37-38.) At trial, defense counsel was not permitted to question Nagle on his informant or agent status; the Court instructed defense counsel that Nagle’s informant and agent status should have been the topic of a pre-trial motion. Tr. 4/150-52. However, as explained above, defense counsel had in fact already moved to obtain informant records in a pre-trial motion, which Dimond, J. reviewed on November 17, 1981. (PrTr. Mot. Hr’g Ex. 2 at 37-38.) Furthermore, even though Nagle testified that he began speaking to Rodwell about the Rose murder at the end of May or beginning of June, and stopped those conversations at the end of June, the Commonwealth’s opposition to Rodwell’s motion to suppress Nagle’s statements contended that the alleged statements spanned a greater length of time; that “the statements were made during the months of May, June, and early July 1981, and Mr. Nagle informed the Commonwealth of these statements later in July 1981.” Tr. 4/115, 118, 131, 152-53. (Opp’n Mot. Supp. Ex. 54 at 1034.) (emphasis added.) The Commonwealth’s memorandum contained assertions that Nagle’s transportation was simply arranged by Suffolk officials and essentially dismissed the idea that Nagle was a government agent. (Opp’n Mot. Supp. Ex. 54 at 1035-1037.) Therefore, Spartichino and Nagle’s meeting at a Suffolk lockup on either April 22, May 1 or 18, or June 22, 1981 absolutely took place before Nagle stopped gathering statements from Rodwell. (D.N. Int. Ex. 98 at 2321, ; D.N. Dkt. Suff.’82 Ex. 30 at 773; D.N. Dkt. Brght. Dist Ex. 108.) The Commonwealth’s memorandum in opposition to Rodwell’s motion to suppress Nagle’s statements was the basis for the Court’s conclusion that Nagle was not a government agent and 43 therefore precluded Attorney Cintolo from crossing Nagle on the issue. (PrTr. Mot. Hr’g Ex. 2 at 37; Opp’n Mot. Supp. Ex. 54 at 1035-1037; Mour. Tr. Ex. 97 at 1886-88, 2142-43, 2207-10, 2254; Murph. Tr. Ex. 81 at 1443-1446, 1625-28.) At trial, the Commonwealth relied almost exclusively on the testimonies of Holmes, the immunized co-conspirator, and Nagle, who testified that Rodwell had admitted to the murder while at Billerica, specifically that Rodwell had told him he shot Rose seven times. On November 25, 1981, the jury found Rodwell guilty on all three charges and Rodwell was sentenced to life without parole. Tr. 7/4-6, 10-11. Rodwell has filed six prior motions for new trial in this case, steadfastly maintaining his innocence. Each of those claims was denied because of the continuing pattern of withholding exculpatory evidence and downplaying Nagle’s relationship with the government that exists in this case. On June 7, 1983 Rodwell filed his first motion for new trial alleging that trial counsel was ineffective for, among other things, failing to further investigate Nagle’s status as a government informant and the favorable dispositions in his cases. (Defendant’s First Motion for New Trial, hereinafter “1st Mot. N. Tr. Ex. 3” at 78-79.) On June 7, 1983, Justice Lynch, sitting as Single Justice, ordered that the motion be remitted to the Superior Court for appropriate action and the motion was referred to the trial judge, Dimond, J, which was denied on January 3, 1984. (J.N. Dkt. Ex. 44 at 914-16.) Rodwell appealed, and on February 230, 1984, the Commonwealth filed its opposition to Rodwell’s motion for new trial and appeal, and also filed proposed findings of fact. Id. at 915. In their opposition to Rodwell’s first motion for new trial, the 30  The  dates  regarding  the  motion  for  new  trial  are  taken  from  the  Docket  81-­‐1712  (J.R. Dkt. Ex. 44 at 913-16.)   The  Commonwealth’s  proposed  findings  of  fact  accompanying  their  opposition  to  the  motion  for  new  trial   indicate  different  dates,  however,  because  they  do  not  comport  with  the  docket,  this  brief  relies  on  the  dates   indicated  in  the  docket  and  not  the  Commonwealth’s  proposed  findings  of  fact.     44 Commonwealth provided the Court with Spartichino’s affidavit in which he stated that Nagle was effectively cross-examined because trial counsel had elicited from Nagle that Spartichino “intended to notify the Middlesex and Suffolk County District Attorneys of Mr. Nagle’s cooperation and…arrange for Mr. Nagle’s transportation from Billerica to the Greenfield House of Correction.” (T.S. Aff. Ex. 5 at 127; Opp’n 1st Mot. N. Tr. Ex. 48 at 976; Commonwealth’s Proposed Findings of Fact for First Motion for New Trial, hereinafter “Pr’ed F’dings 1st Mot. N. Tr. Ex. 82” at 1707) As noted above, Sparichino is essentially confirmed that Nagle’s statements on cross were true and complete, or else the cross-examination would not have been effective. Thus, in his affidavit, as an officer of both the law and the Court, Spartichino was telling the Court, under oath, that there is no further relevant evidence about his relationship with Nagle. Spartichino’s affidavit was signed September 27, 1983 and the Commonwealth’s opposition, which included Spartichino’s affidavit, was filed in February 1984, even though the Commonwealth in all likelihood knew that on March 3 and 4, 1983, Nagle testified in Mourad that the law enforcement officers handling the Rose murder spoke to the judge on Nagle’s behalf31, and Spartichino had in fact done so as evinced by his off-the record sidebar at Nagle’s guilty plea on February 26, 1982.32 (Opp’n 1st Mot. N. Tr. Ex. 48 at 976; D.N. Plea Suff.’82 Ex. 25 at 741; Mour. Tr. Ex. 97 at 2041.) The Court agreed with Spartichino and the 31 Counsel: Isn’t it true, sir, that the Police Department that had worked on [Rodwell’s] case, isn’t it true that they advised the judge [presiding over Nagle’s 1982 Suffolk guilty plea] of the fact that you had cooperated in [Rodwell’s] case and asked them to consider that, the judge to consider that in sentencing you [in Nagle’s 1982 Suffolk guilty plea]? Nagle: Yes, sir, they did. (Mour. Tr. Ex. 97 at 2274.)   32  “Even  if  Attorney  Cintolo  somehow  persuaded  the  Court  to  admit  such  collateral  evidence  (MFNT  1   Affidavits),  it  would  have  amounted  to  nothing  more  than  one  more  means  of  impeaching  Nagle.  It  would  not   have  added  a  new  or  different  defense.  It  should  be  remembered  in  this  connection  that  Attorney  Cintolo   effectively  and  adequately  cross-­‐examined  Mr.  Nagle  concerning  his  cooperation  with  law   enforcement  authorities  in  his  pending  cases,  his  prior  statement  to  Lieutenant  Spartichino,  and  his   ability  to  be  transferred  out  of  Billerica  after  making  statement  (sic)  to  Lieutenant  Spartichino.  Any   evidence  as  to  Mr.  Nagle’s  past  involvements  with  law  enforcement  would  have  been  merely  cumulative   impeachment  evidence.”  Opp’n  1st  Mot.  N.  Tr.  Ex.  48  at  967-­‐68.(emphasis  added;  internal  citations  omitted)   45 Commonwealth, holding that, “Mr. Cintolo cross-examined [Nagle] on his prior statement to Detective Lieutenant Spartichino and his transfer out of Billerica after speaking to Spartichino. The credibility of Nagle was therefore seriously and squarely placed before the jury. The matters that the defendant now seek (sic) to raise, even if admissible, are, as I stated above, only marginal and cumulative.” (Den. 1st Mot. N. Tr. Ex. 6 at 139.) (internal citations omitted) In their proposed findings of fact in opposition to Rodwell’s first motion for new trial, the Commonwealth stated that its “case rested primarily upon the eyewitness testimony of Francis Holmes, an immunized witness who testified that he had been present when the defendant had shot and killed the victim…the Commonwealth also provided testimony by David Nagle, a Billerica inmate who testified as to certain incriminating admissions allegedly made by the defendant while he was awaiting trial,” downplaying the importance of Nagle’s testimony as essentially the only corroborating evidence to the testimony of Holmes, an immunized coconspirator. (Pr’ed F’dings 1st Mot. N. Tr. Ex. 82 at 1706.) Contrary to the Commonwealth’s contention that their case was merely enhanced by Nagle’s testimony, their entire case rested on the testimony of Nagle; without Nagle, Holmes’ testimony as an immunized co-conspirator would not have passed the threshold test created by M.G.L. 233, § 20I, which states that “no defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity...” Because the Commonwealth had no evidence linking Rodwell to the crime other than the testimony of the immunized co-conspirator (Holmes), their entire case rested on the testimony of Nagle; the law “require[s] that there be some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant. Thus, evidence corroborating an accomplice's testimony concerning the commission of the crime would be sufficient under the statute, even if there were 46 no other evidence connecting a defendant to the crime.” Comm. v. DeBrosky, 363 Mass. 718, 730 (1973). As such, Nagle’s testimony was the material factor that resulted in Rodwell’s conviction. Moreover, the Commonwealth contended that it “also provided testimony by various witnesses who corroborated the testimony of Mr. Holmes.” (Pr’ed F’dings 1st Mot. N. Tr. Ex. 82 at 1706.)(emphasis added) However, the only other witness who testified to anything remotely resembling corroboration of Holmes’ testimony (other than Nagle) was Kevin Farrell. Tr. 4/25-52. That “corroboration” was merely that Farrell saw a man (who came from one of the two cars) enter an apartment building behind Rose on December 3, 1978. Tr. 4/31-2. Holmes had testified to a similar scene, indicating that Rodwell exited the Torino and approached Rose’s apartment. Tr. 2/74. However, at trial, Farrell, who was able to describe the movements of this man who exited the Torino in fairly substantial detail, did not identify Rodwell as the man whom he had seen. Tr. 4/32-33. Even U.S. District Court Judge WilliamYoung (in both 1987 and 2001) highlighted the fact that the only evidence the Commonwealth had was in the testimonies of Holmes and Nagle. (Fair, 834 F.2d 240 Ex. 101 slip-op at 2435; Pepe, 103 F.Supp.2d 129, 131, Ex. 102 at 2443.) In his 1987 denial of Rodwell’s petition for a writ of habeas corpus, Judge Young stated, “it is fair to say that the Commonwealth’s case against Rodwell relied primarily on Holmes’ and Nagle’s testimony. They were the only witnesses who placed Rodwell at the scene actually committing the crimes for which he was subsequently convicted. Under M.G.L. 233 § 20I, Holmes’ testimony required corroboration, and Nagle’s testimony was introduced for this purpose.” (Fair, 834 F.2d 240 Ex. 101 slip-op at 2435.) More than twenty years after Rodwell’s first motion for new trial, the Commonwealth continued with its argument that the government’s case rested on Holmes’ testimony: [E]ven if [Rodwell] were able to come up with [evidence of Nagle as a government informant or deal] from Nagle or Nagle’s lawyers, the fact remains that Holmes – an 47 eyewitness to the murder – also testified describing the murder in vivid detail. Thus, at this date, any further impeachment of Nagle would be merely cumulative. (Commonwealth’s Opposition to Sixth Motion for New Trial, hereinafter “Opp’n 6th Mot. N. Tr. Ex. 78” at 1252.) However, since Nagle was the witness upon whom Rodwell’s conviction rested, the new evidence that Nagle was a DEA informant who was paid to “actively obtain information” for the DEA (Mour. Tr. Ex. 97 at 2219) is wholly noncumulative because the fact remains that, with the absence of any other evidence inculpating Rodwell, Nagle’s testimony corroborated the otherwise uncorroborated, and thus insufficient (under M.G.L. 233, § 20I), testimony of Holmes. In the denial of Rodwell’s appeal from his conviction, the Court stated, “where there is no police connection with the private citizen to whom a defendant makes an admission, there is no Sixth Amendment barrier to the introduction of that evidence.” (Rodwell, 394 Mass. 694 Ex. 84 at 1720.) In denying Rodwell’s appeal, the Court cited a lack of evidence of a connection between Nagle and law enforcement. Rodwell, 394 Mass. at 699. However, new evidence from Mourad, the recorded interview with Nagle, and other new evidence indicate that there was an extensive and hidden “police connection” between Nagle and law enforcement. On March 20, 1986, Rodwell filed his second motion for new trial with the newly discovered evidence of the Murphy transcripts. (2nd Mot. N. Tr. Ex. 7 at 148.) In denying the motion, the Court stated that although Murphy proved Nagle was a DEA informant from 198284, “the defendant’s statements to Nagle in the present case were made in 1981” thus making any later informant status superfluous. (Denial of Second Motion for New Trial, hereinafter “Den. 2nd Mot. N. Tr. Ex. 10” at 183.) The Court went further, stating that “nothing in [Rodwell’s] present motion indicates that any police officer connected with the investigation of the charges against [him] in the present case had any knowledge, prior to [Rodwell’s] conversations with Nagle, that the defendant and Nagle were both being held in Billerica.” Id. at 48 184. However, the Mourad transcripts and Nagle’s interview show that he was both a DEA informant and had spoken to “police officers directly related to the investigation of the charges against [Rodwell]” prior to his conversations with Rodwell. (2nd Mot. N. Tr. Ex. 7 at 184; Mour. Tr. Ex. 97 at 2142-43; D.N. Int. Ex. 98 at 2321.) Furthermore, the meeting at a Suffolk Lockup on April 22, May 1 or 18 or June 22, 1981 suggests that Spartichino was keeping tabs on Nagle. (D.N. Dkt. Suff.’82 Ex. 30 at 773; D.N. Dkt. Brght. Dist Ex. 108 at 2479-83; D.N. Int. Ex. 98 at 2321.) On August 6, 1993, Rodwell filed his third motion for new trial with newly discovered evidence that in 1991 one Charles Ryan told Somerville police that he had personally witnessed Robert Winfield33 murder Rose, and further argued that Nagle’s testimony was “highly suspect” because he was a “paid professional stool pigeon.” (Third Motion for New Trial, hereinafter “3rd Mot. N. Tr. Ex. 12” at 203-05.) The denial of Rodwell’s third motion for new trial largely replicated that of his first two motions, with the exception that it pointed to the waiver of only Nagle’s bias. (Den. 3rd Mot. N. Tr. Ex. 90 at 1844.) On February 24, 1997 Rodwell filed his fourth motion for new trial claiming that the transcripts of Nagle’s Suffolk Armed Robbery pleas in February 1982 and October 1985 showed that the Middlesex D.A.’s Office had in fact agreed that Nagle would get a deal in exchange for his testimony against Rodwell. (4th Mot. N. Tr. Ex. 13 at 273.) In opposition to Rodwell’s motion, the Commonwealth stated that, “Rodwell claims that the newly discovered evidence found in affidavits from former CBS News researcher Ty West, former Boston Phoenix reporter Joseph Bargmann, former Suffolk County Assistant District Attorney Robert W. Nelson and Private Detective David F. Mason, Jr…show[s] that prior to trial, Nagle was a government informant and therefore was biased in favor of the prosecution, and says that the trial 33  Robert  Winfield-­‐  deceased  1989.   49 prosecutor’s failure to disclose more about Nagle’s being an informant amounted to suppression of exculpatory evidence.” (Commonwealth’s Opposition to Fourth Motion for New Trial, hereinafter “Opp’n 4th Mot. N. Tr. Ex. 51” at 1005.) The Commonwealth stated in response to issues raised by defense counsel that the Supreme Judicial Court and U.S. Court of Appeals “concluded that Nagle was not a government agent when he heard Rodwell’s admissions in jail beginning in May 1981, because he was not there at the behest of the police,” allowing the conclusion of two prior Courts, who, unlike the Commonwealth, had no actual knowledge of Nagle’s status as a government informant, stand as their only rejection of Rodwell’s claim. Id. Two issues arise from the Commonwealth’s statements above: first, the affidavits that Rodwell presented as proof that Nagle was a government agent prior to trial are now undoubtedly verified by the Mourad case, specifically Nagle’s testimony that he was a DEA informant from 1979-81 and the DEA exhibits used in Mourad. (Mour. Tr. Ex. 97 at 2142-43, 2209.) Second, rather than actually denying that Nagle was a government informant or agent, the Commonwealth merely cited to other Courts’ denials of Rodwell’s claim that Nagle was a government informant. (Opp’n 4th Mot. N. Tr. Ex. 51 at 1005.) The Commonwealth specifically cited to the Court’s holding from Rodwell, 394 Mass. at 676, that Nagle “had not communicated with any police officer during the defendant’s case.” Id. However, Nagle was absolutely in communication with Spartichino either on April 22, May 1 or 18, 1981 or June 22, 1981, during Rodwell’s case, and before or during the time that Nagle was gathering the alleged statements from Rodwell. (D.N. Dkt. Suff.’82 Ex. 30 at 773; D.N. Dkt. Brght. Dist Ex. 108 at 2480-3; D.N. Int. Ex. 98 at 2321, 2389.) In response to journalist Joseph Bargmann’s affidavit that DEA Agent Ed O’Brien had written to the parole board that Nagle was a DEA informant from 1981 to 1983, the Commonwealth stated that “information that as of June 50 1981, Nagle was giving information to the Suffolk District Attorney’s Office and to police in Middlesex County…and that from 1981 to 1983 Nagle was a paid informant for the [DEA] does not undermine the Appellate Courts’ rulings. Certainly it does not amount to newly discovered evidence that presents an issue substantial enough for appellate review.” (Opp’n 4th Mot. N. Tr. Ex. 51 at 1006.)(internal citations omitted) In their argument, the Commonwealth cites to only one case and does not explain how information that Nagle was a DEA informant from 1981 to 1983 is not substantial- they merely assert it and move on to their next argument. Id. The Mourad case shows how truly substantial those claims really were since Nagle was in fact a paid DEA informant in 1981, the same year he testified against Rodwell. (Mour. Tr. Ex. 97 at 214243.) As this evidence goes to the heart of a constitutional violation for Rodwell, it is difficult to understand how the Commonwealth could assert that the fact that Nagle was a DEA informant in 1981 was anything but substantial new evidence. The Court, in denying Rodwell’s fourth motion for new trial, held that the affidavits presented regarding Nagle’s status as a DEA informant were unsubstantiated. (Denial of Fourth Motion for New Trial, hereinafter “Den. 4th Mot. N. Tr. Ex. 14” at 498.) Now, Rodwell has actual proof that Nagle was a DEA informant in 1979-81, 1982, 1983, and 1984 from the transcripts of Mourad, in which Nagle’s DEA informant file was produced, and from the Murphy case. (Mour. Tr. Ex. 97 at 2142-43; Murph. Tr. Ex. 81 at 1443-46.) The Court held in response to Bargmann’s affidavit that Nagle was a DEA informant from 1981-1983, that “even if such a claim could be corroborated, it asserts that Nagle acted as a DEA informant after Rodwell’s trial had concluded and would not be relevant to whether Nagle was an agent when he spoke with Rodwell.” (Den. 4th Mot. N. Tr. Ex. 14 at 499) (emphasis added) However, we now know that Nagle was an informant from 1979-81 which, based on the Court’s language, 51 is directly relevant to whether Nagle was an agent when he spoke to Rodwell. (Mour. Tr. Ex. 97 at 2142-43.) The Court further held that Nagle’s 1981 Middlesex bail hearing was unsubstantial because Nagle had testified that he “first spoke to law enforcement about his conversation with Rodwell on July 9, 1981, almost a month after this bail hearing.” (Den. 4th Mot. N. Tr. Ex. 14 at 498 n. 9.) The Court’s holding based on Nagle’s testimony is erroneous because we now know that it was perjured and Nagle was speaking with law enforcement during the time that he was speaking to Rodwell (with Spartichino at a Suffolk Lockup on April 22, May 1 or 18 or June 22, 1981), thus corroborating Nagle’s attorney’s statements at his bail hearing on June 12, 1981 that Nagle had “given a great deal of information” to Middlesex law enforcement. (D.N. Int. Ex. 98 at 2321; D.N. Bail Midd.’81 Ex. 29 at 768-69; D.N. Dkt. Suff.’82 Ex. 30; D.N. Dkt. Brght. Dist. Ex. 108; D.N. Appr. Brght. Dist. Ex. 109.) In the denial of Rodwell’s fourth motion for new trial and appeal, the Court reframed Rodwell’s argument that withholding Nagle’s June 12, 1981 Middlesex bail hearing was a Brady violation, and held that Rodwell was merely asserting the same prior claims of Nagle’s bias. (Den. 4th Mot. N. Tr. Ex. 14 at 498-99.) The Court held that, “although Rodwell has framed this appeal in the form of a claim of prosecutorial misconduct, the crux of Rodwell’s petition remains the issue of Nagle’s bias as a witness for the prosecution.” Id. The new evidence that Nagle’s 1981 Middlesex bail hearing was for a case where the Somerville police and a Middlesex bail commissioner knew that Nagle was a DEA informant firmly resurrects Rodwell’s argument that this was prosecutorial misconduct and not an issue of Nagle’s bias. (Mour. Tr. Ex. 97 at 224445.) Furthermore, had the Commonwealth provided Rodwell with Nagle’s bail hearing, it would have led Rodwell’s trial counsel to inquire further into the favorable treatment provided to Nagle 52 surrounding the 1980 arrest, and may have revealed that Nagle was a paid government informant when arrested on the 1980 case up through a mere three months before Nagle met with Rodwell at Billerica, which would have definitely served as a substantial basis for Rodwell’s pretrial motion to suppress Nagle’s statements and would have with no question entitled Rodwell to an evidentiary hearing. (Mot. Supp. Ex. 68; Mour. Tr. Ex. 97 at 2244-45.) When the Court reframed Rodwell’s Brady claim so that it fell under the previously raised claim of bias, and was thus waived, that reframing was unjustified and unmerited, especially considering the Court’s denial of Rodwell’s third motion for new trial which held that “the exclusion of evidence about Nagle’s prior cooperation with the prosecution has been upheld as cumulative, inasmuch as Nagle’s bias stemming from then-pending charges was effectively admitted.” (Den. 3rd Mot. N. Tr. Ex. 90 at 1844.)(emphasis added) Therefore, the issue of Nagle’s prior cooperation has only been waived, if at all, as to Nagle’s bias. By reframing Rodwell’s issue so that it became one of bias, the Court essentially precluded Rodwell from actually raising his accurate and legitimate argument of prosecutorial misconduct by withholding exculpatory evidence. Rodwell now asserts that, although Nagle was definitely biased, the fact that he was a documented DEA informant is not cumulative and has not previously been waived, as the Court itself has held that Nagle’s prior cooperation has only been waived as to Nagle’s bias as a government witness. Id. On June 9, 1998, Rodwell filed his fifth motion for new trial, but that motion for new trial rested on Nagle’s attorney client privilege and has no bearing on the present motion. On August 6, Barrett, J. refused to act, stating that “all of these issues could have been raised in the appeal and the numerous previous motions for a new trial.” (Denial of Fifth Motion for New Trial, hereinafter “Den. 5th Mot. N. Tr. Ex. 16” at 540.) 53 Rodwell petitioned the SJC pursuant to G.L. c. 278, § 33E for leave to appeal (No. SJ-980481), and on June 3 and 22, 1999, Marshall, J., sitting as Single Justice, issued orders declining to report most of the issues Rodwell had raised, including any reference to Nagle, but reporting on the sole issue of whether Rodwell had waived his claim that his concurrent sentence for Armed Robbery was duplicative of his first-degree murder sentence. (Den. 5th Mot. N. Tr. Ex. 16 at 558-59.) On appeal, the full Court held that Rodwell had waived his sentencing claim by failing to raise it previously. Rodwell v. Comm., 432 Mass. 1016, 1018 (2000) (Ex. 103 at 2450.) Rodwell sought habeas corpus relief claiming errors in Nagle’s testimony, which was subsequently denied, with an affirmation and denied cert. However, the 1st Circuit did note that the issue of any bargain between Nagle and the prosecutor had not been fully addressed: [T]he most that can be said for his present position is that the district court, if it had the benefit of a more elaborate presentation of the facts concerning the Faustian bargain between Nagle and prosecutor, would have ruled differently in the habeas case and set aside the underlying conviction….We acknowledge that, despite the petitioner’s numerous attempts to expose the full extent of the relationship between Nagle and the state prosecutor, no Court has exhaustively addressed that claim. (emphasis added) Rodwell v. Pepe, 324 F.3d 66, 72 (2003), Ex. 104 at 2457. On December 8, 2004, Rodwell moved as intervenor in Nagle’s 1985 Suffolk Armed Robbery case (No. 054341) seeking to unseal the portion of the transcript of Nagle’s guilty plea that McGuire, J. had impounded. (2004 Motion to Intervene, hereinafter “Mot. Interv. 2004 Ex. 17” at 561) On December 21, 2004, Ball, J. ruled: “Based on the showing of potential relevance herein, I have examined the sealed transcript in question. It shall be made available to Attorney Reddington and A.D.A Meier for copying. It may not be further disseminated without this Court’s permission.” (Allowed Motion to Unseal Impounded Transcript, hereinafter “All’w. Mot. Un. Ex. 34” at 824.) Counsel has attached a sealed affidavit and placed the impounded transcripts from Nagle’s 1985 plea under seal. See Affidavit of Counsel, UNDER SEAL. 54 (Allowed Motion to Modify Impoundment Order, hereinafter “All’w. Mot. Mod. Ex. 65” at 1136.) On September 12, 2005, Rodwell moved as intervenor in Nagle’s 1985 Suffolk Armed Robbery case seeking to terminate Nagle’s attorney-client privileges. (2005 Motion to Intervene, hereinafter “Mot. Interv. 2005 Ex. 18” at 656) On February 1, 2006, Hinkle, J. denied the motion. (Denial of 2005 Motion to Intervene, hereinafter “Den. Mot. Interv. 2005. Ex. 19” at 573.) On October 2, 2006, Rodwell filed a sixth motion for post-conviction relief requesting that the Court hold a hearing to determine if, in the interests of justice, Nagle’s attorney-client privilege could be terminated with respect to any CPCS files that indicate promises, rewards and inducements extended to Nagle. (Sixth Motion for New Trial, hereinafter “6th Mot. N. Tr. Ex. 20” at 575.) The Court “declined to act” on the motion and “set aside” the question of “whether a Court has authority to order an attorney to disclose- without authority from the clientcommunications and materials otherwise privileged.” (Denial of Sixth Motion for New Trial, hereinafter “Den. 6th Mot. N. Tr. Ex. 21” at 586.) The Court noted that nothing prevented Rodwell from obtaining Nagle’s waiver of the privilege. Id. Nagle, after multiple attempts by counsel to obtain a waiver, has agreed only to waive the privilege after death. (David Nagle Waiver of Privilege Upon Death, hereinafter “D.N. Waiver Ex. 64” at 1131) The Commonwealth’s response to Rodwell’s sixth motion for new trial highlighted their continued reliance on Spartichino’s affidavit which, through the new evidence presented in this motion, has been exposed to be a less than candid representation to the Court regarding Nagle’s cross-examination. The Commonwealth stated that: The defendant tries to escape his waiver problem by insisting that he ‘has literally never had the opportunity to stand before a Court and present evidence of suppressed evidence, 55 perjured testimony and virtual conspiracy of government witnesses.’ But. . . [Rodwell] did have ample opportunity at trial to impeach Nagle’s credibility, and any additional impeachment evidence would be merely cumulative. And. . .[Rodwell] has not presented any prima facie case of any such thing as a ‘virtual conspiracy of government witnesses.’(Opp’n 6th Mot. N. Tr. Ex. 78 at 1251.) (internal citations omitted) Now, however, Rodwell can show a ‘conspiracy of government witnesses’ – the new evidence shows that Nagle was, in fact, a paid DEA informant working with multiple law enforcement agencies and that he lied on the stand regarding both the extent and timing of his contacts with Spartichino while Spartichino sat at the prosecution’s table and sat quietly by allowing this perjury to go uncorrected. (D.N. Bail Midd.’81 Ex. 29 at 768-69; Mour. Tr. Ex. 97 at 2142-43; Affidavit of James Rodwell.) Had Nagle testified truthfully that he was meeting with Spartichino and discussing Rodwell before and during the time he was gathering alleged statements from Rodwell, his relationship with Spartichino and the State Police would have been scrutinized further and set the foundation for a valid and supported claim of a violation of Rodwell’s Sixth Amendment right to counsel. Rodwell’s “ample opportunity to impeach Nagle’s credibility” has clearly been extinguished since Nagle was committing perjury on the stand. Tr. 4/142. Therefore any new evidence of Nagle’s perjured testimony would be categorically noncumulative of Nagle’s responses to defense counsel’s attempts to impeach him at trial. Defense counsel cannot be expected to have “amply impeached” a witness if that witness was responding to the impeachment questions with perjured testimony. (Opp’n 6th Mot. N. Tr. Ex. 78 at 1251.) Furthermore, the new evidence that Nagle was a DEA informant from 1979 to at least spring 1981 would not serve to impeach Nagle on the same issues that defense counsel brought out at trial. Tr. 4/150-52. (Mour. Tr. Ex. 97 at 2142-43.) At trial, the fact that Nagle had cooperated with the government in his own cases was addressed, but defense counsel was specifically 56 denied the opportunity to inquire further into Nagle’s cooperation, even though counsel had a list of four other cases that Nagle had informed on and argued that “it has been a long-standing practice of [Nagle] and the government to inform on other individuals and get various preferential treatment as a result.” Tr. 4/150-51. Not once in the 31 years following Rodwell’s conviction has the Court held that any evidence Rodwell proffered to the Court regarding Nagle’s status as a government informant was credible enough to grant Rodwell a new trial. Now, the testimony from Mourad is definitive and indisputable evidence that Nagle was a documented and paid DEA informant prior to eliciting statements from Rodwell. (Mour. Tr. Ex. 97 at 2142-43.) In 2007, when Rodwell first became aware of Nagle’s 2006 letter that he had a “deal to testify in a murder case” he filed a motion for access to Nagle’s records and attached Nagle’s letter as an exhibit. (Dwyer Motion for Records, hereinafter “Mot. R. Ex. 22” 593.) In their opposition to Rodwell’s motion, the Commonwealth cited only to portions of Nagle’s letter out of context to argue that he was referencing a deal on a different case than Rodwell’s. (Commonwealth’s Opposition to Dwyer Motion for Records, hereinafter “Opp’n Mot. R. Ex. 23” at 601, 605-06.) The Commonwealth quoted Nagle’s language that “I [sic] have to go back on my deal,” arguing that Nagle couldn’t be referring to Rodwell’s case and could only be referring to a deal he received in 1986.34 Id. What the Commonwealth failed to provide to the Court in its argument was the quotation “[m]y deal to testify in a murder case” when stating to the Court, “it appears that the ‘deal’ that Nagle was referring to…was his claim that the Middlesex D.A.’s Office had promised him a 12- to 20-year sentence at his plea before Justice Elam in 1986.” (Opp’n Mot. R. Ex. 23 at 605; D.N. Ltr.’06 Ex. 88 at 1831.) The Commonwealth argued that 34  Nagle’s  letter  actually  specifically  references  “[Nagle’s]  deal  to  testify  in  a  murder  case  and  a  federal  Court   on  some  international  issues.”  D.N.  Ltr.’06  Ex.  88  at  1831.   57 Nagle was referring to his 1986 plea, even though the 1986 plea was in Middlesex for Armed Robbery, Armed Assault with Intent to Rob, and Assault with a Dangerous Weapon. (Opp’n Mot. R. Ex. 23 at 605; D.N. Ltr.’06 Ex. 88 at 1831; David Nagle Plea Middlesex Docket 852548-52, hereinafter “D.N. Plea Midd.’86 Ex. 32” at 806.) Because Nagle wrote to the Middlesex D.A. about his deal, it is clear that whatever deal he was referring to came out of a Middlesex murder case. (D.N. Ltr.’06 Ex. 88 at 1831.) Therefore, in 2007, the Middlesex D.A.’s office was on notice that Nagle could only have been referring to a deal from Rodwell’s case as the only murder case Nagle ever testified in was Rodwell’s in Middlesex Superior Court. (D.N. Int. Ex. 98 at 2407.) Nagle explicitly stated in the recorded interview that he never testified in any other murder case. Id. The Court has not ruled on this motion. (James Rodwell Docket 811712-14, hereinafter “J.R. Dkt. Ex. 44” at 919) In September, 2009, Rodwell filed a Pro Se Motion to Examine and Furnish Bench Conference Transcripts as Intervenor in Nagle’s 1982 Suffolk Guilty Plea. (Motion to Furnish Transcripts, hereinafter “Mot. Tr. Ex. 24” at 726.) This motion regarded an off-the-record sidebar between the judge, Spartichino, and an unknown man during Nagle’s plea hearing. (D.N. Plea Suff.’82 Ex. 25 at 741.) Rodwell further wished to examine the “written materials” provided to the judge prior to the plea. (Mot. Tr. Ex. 24 at 726.) The Commonwealth’s opposition stated that the 1982 bench conference was held off-the-record and was not recorded. (Commonwealth’s Opposition to Motion to Furnish Transcripts, hereinafter “Opp’n Mot. Tr. Ex. 26” at 753.) However, the Commonwealth went on to state that “[i]f such records could be located, the proper course of action would be. . .[that] the transcript should be reviewed in camera for relevance to Rodwell’s motions and for its potential danger to Nagle. Assuming this Court found both relevance and potential to endanger Nagle...[the transcript] should be made available, still 58 impounded, to any Court adjudicating a motion to which it might be relevant.” Id. The case file for the 1982 plea is still intact at the Suffolk County Archives, yet the “written materials” are absent from the clerk’s file. (Affidavit of Counsel.) The motion was denied without a hearing. (D.N. Dkt. SUCR1982 Ex. 112; D.N. Dkt. SUCR1985 Ex. 113) On August 10, 2010, Rodwell filed a Pro Se Motion to Compel Nagle to Complete the Record of the 1982 Plea Hearing as Intervenor in Nagle’s 1982 Suffolk Guilty Plea. (Motion to Complete the Record, hereinafter “Mot. Complete R. Ex. 27” at 757.) The motion was denied by Judge Ball for reasons stated by the Commonwealth. (Denial of Motion to Complete Record, hereinafter “Den. Mot. Complete R. Ex. 28” at 763.) Rodwell’s attorneys and investigators have tried tirelessly to contact Nagle and those individuals who suggested Nagle was a DEA informant. (Correspondence from Kevin Reddington re: Nagle, hereinafter “K.R. Corr. Ex. 52” at 1011; Correspondence from Timothy Bradl re: Nagle, hereinafter “T.B. Corr. Ex. 53” at 1029; James Rodwell Correspondence re: Nagle, hereinafter “J.R. Corr. Ex. 55” at 1044) David Nagle has never cooperated with Rodwell’s counsel at any time in the past. (Affidavit of Counsel.) Repeated attempts to verify claims made in various media articles and the Murphy case have gone unanswered and it wasn’t until Nagle finally permitted Attorney Veronica White to interview him in on May 25, 2012 and until Attorney White received the Mourad transcripts on June 4, 2012, that any assertion or claim regarding Nagle’s DEA informant status has been able to be confirmed or verified by reliable and substantial means, such as Federal Court recorded testimony in Mourad. (Affidavit of Counsel.) Throughout the past thirty-one years, James Rodwell has submitted in excess of ten separate motions to various Courts, consistently proclaiming his innocence. Each motion has 59 been opposed by the Commonwealth, and most motions have resulted in written memorandums and orders in which the Court denied Rodwell’s motions, or else the Courts have declined to rule. Each opposition or denial has relied on specific issues or assertions that are now undermined by the weight of the new evidence that has been presented in this motion, especially the Mourad transcripts, the recorded interview with Nagle, and the McDermott and Chase affidavits. In light of the newly discovered evidence, the facts and issues previously relied upon by both the Commonwealth and the Court in their responses to Rodwell’s motions should be subject to review. What is now brought to the forefront is not specific instances of past cooperation in state level cases that were far removed from the actual time that Rodwell allegedly made incriminatory statements to Nagle, but uncontroverted evidence that Nagle was in fact a registered DEA informant from 1979 until spring 1981 with the last recorded cash payment in February 1981, three months before Rodwell and Nagle ended up in the same cell block in Billerica in May 1981. Tr. 4/140. (Mour. Tr. Ex. 97 at 2142-43, 2196-97, 2247.) From 1979 to Spring 1981, an informant file revealed that Nagle was actively involved in a formal and documented working relationship with the DEA. New Evidence now reveals in great detail how the Middlesex D.A.’s office is responsible for knowing the extent to which Nagle led a secret life as a paid government informant and how an agency relationship did in fact exist during the relevant time period of Rodwell’s alleged statements to Nagle, as exposed by the favorable treatment to Nagle by the state and federal government and the initiation of a secret government relationship with Spartichino that began, at the very least, at a Suffolk lockup on April 22, May 1 or 18 or June 22, 1981. (D.N. Dkt. Suff.’82 Ex. 30 at 773; D.N. Dkt. Brght. Dist. Ex. 108 at 2480; D.N. Int. Ex. 98 at 2307) 60 The very suspicious nature of the favorable treatment given to Nagle after having committed a violent crime in May 1980 while on the payroll of the federal government as a paid DEA informant never reached the Rodwell jury, and it never reached the attorneys for Rodwell who fought so vigorously for his freedom for the past 31 years. The new evidence shows that the government sat idly by while various justices of the trial Court, Supreme Judicial Court, and U.S. District Court shut Rodwell down, telling him that he simply did not have enough evidence to show that Nagle was a government agent during the relevant time period, and any evidence was merely cumulative of the evidence already submitted and relied upon by the Rodwell jury. While Rodwell was trying to reveal Nagle’s agency relationship with the little crumbs of evidence left by the government and unearthed by his investigators and attorneys, the government continued to obstruct Rodwell’s attempts at finding the truth about Nagle and his relationship with the State Police and the Middlesex D.A.’s office in the trial against James Rodwell. The memorandum to follow details the information that the government knew or should have known that now legally compels this Court to grant the motion for a new trial or in the alternative, afford Rodwell a full evidentiary hearing so that after 31 years of injustice the government can finally be called into question and held accountable for its actions in trampling upon Rodwell’s constitutional rights, all while holding the key to the very information that would have set him free. LEGAL ARGUMENT While a motion for new trial is usually a matter of the trial judge’s sound discretion, in cases where the original trial was infected with prejudicial constitutional error the judge has no discretion to deny a new trial. Earl v. Comm., 356 Mass. 181, 184 (1969.) As will be outlined below, this is just such a case. Mr. Rodwell’s rights to Due Process of Law under the Fifth and 61 Fourteenth Amendments of the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights, to adequately confront the witnesses against him under the Sixth Amendment and Article 12, and Sixth Amendment and Article 12 Right to Counsel were violated in this case and therefore his Motion for New Trial must be granted. I. THIS COURT SHOULD GRANT RODWELL’S MOTION FOR A NEW TRIAL BECAUSE THE COMMONWEALTH FAILED TO PROVIDE MULTIPLE PIECES OF EXCULPATORY EVIDENCE IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION “Due process of law requires that the government disclose to a criminal defendant favorable evidence in its possession that could materially aid the defense against the pending charges.” Comm. v. Daniels, 445 Mass. 392, 401 (2005), citing Tucceri, 412 Mass. 401, 404-5, citing Brady v. Maryland, 373 U.S. 83, 87 (1963). Brady applies in three situations. U.S. v. Agurs, 427 U.S. 97, 103 (1976). “Each [situation] involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense…In the first situation…the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury…The second situation, illustrated by the Brady case itself, is characterized by a pretrial request for specific evidence.” Id. at 104. The third situation is where there has been only a general or no request for exculpatory evidence. Id. The prosecution in this case violated all three situations contemplated by Agurs, and such suppression of evidence “violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecutor.” Id. Favorable evidence need not be dispositive; evidence may be favorable or exculpatory, and thus required to be disclosed, even if “it is not absolutely destructive of the Commonwealth’s case or highly demonstrative of the defendant’s innocence.” Daniels, 445 Mass. at 401, citing Comm. v. Ellison, 376 Mass. 1, 22 (1978). If evidence “provides some significant aid to the defendant’s 62 case, whether it furnishes corroboration of the defendant’s story, calls into question a material, although not indispensible, element of the prosecution’s version of events, or challenges the credibility of a key prosecution witness,” that evidence should reach the defendant’s hands before trial, if possible. Id. (emphasis added.) Finally, evidence that the government failed to disclose to the defendant is considered collectively when determining materiality, not on an itemby-item basis. Kyles 514 U.S. at 436. a) THE NEWLY DISCOVERED EVIDENCE WAS EITHER KNOWN TO THE COMMONWEALTH OR CAN BE IMPUTED TO THEM THROUGH THE SOMERVILLE POLICE OR LIEUTENTANT SPARTICHINO OF THE STATE POLICE The Prosecutor has a constitutional duty to learn of “any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Prosecutors remain responsible to disclose favorable evidence to the defendant, regardless of whether police investigators failed to inform the prosecutor of evidence. Id. at 438. The prosecution’s responsibility for failing to disclose known, favorable, material evidence is inescapable, and prudent prosecutors should resolve doubtful questions in favor of disclosure. Id. at 438-439. “A prosecutor’s duty…extends…to exculpatory evidence in the prosecutor’s possession or in the possession of the police who participated in the investigation and presentation of the case.” Comm. v. Tucceri, 412 Mass. 401, 407 (1992). The first piece of new evidence imputed to the Commonwealth is that Nagle was a registered DEA informant from 1979 until spring 1981, with the last recorded cash payment to Nagle from the DEA taking place in February 1981. (Mour. Tr. Ex. 97 at 2143, 2197, 2254.) The Somerville Police participated greatly in the investigation of the Rose murder. (Hamilton Rep’t. Ex. 38 at 878; T.S. Rep’s Ex. 40 at 882; Callinan Rep’t. Ex. 42 at 900; O’Donnell Rep’t. Ex. 58 at 1061; Shine Rep’t. Ex. 59 at 1063.) This knowledge is imputed to the Commonwealth because 63 Nagle was arrested by the Somerville police at DEA Headquarters on May 9, 1980 for Armed Robbery and Kidnapping, and the Somerville police informed the Middlesex bail commissioner that Nagle was a DEA informant. (Mour. Tr. Ex. 97 at 2243-45.) Further, Nagle was released on personal recognizance despite being charged with Armed Robbery and Kidnapping and after defaulting had no warrant issue for nearly a month. When Nagle was finally brought in more than two months after the warrant was issued, he was released again on only $500 bail. (D.N. Dkt. Midd.’80 Ex. 69 at 1201-02; D.N. Midd. F. Ex. 86 at 1753, 1766.) Additionally, Spartichino’s ties with the Somerville Police were evinced by the reporting hierarchy of the Rose murder. Rose’s death report was completed by the City of Somerville and the ballistics report was sent directly to Spartichino’s office at Middlesex Superior Court. (Ballistics Rep’t. Ex. 40 at 887; Death Cert. Ex. 37 at 876.) Most importantly, during Spartichino’s tenure as lead detective on the Rose murder: a) Rose was murdered in Somerville in 1978; b) the Somerville Police and the Somerville District Court knew that Nagle was a DEA informant from at least May 1980; and c) in 1981 Rodwell was arrested by Somerville Police and State Troopers attached to Middlesex County, booked at the Somerville Police Department, and arraigned at Somerville District Court- the same Court in which, less than a year prior, Nagle was granted bail because the Somerville Police informed the bail commissioner that Nagle was a paid DEA informant. Tr. 5/122. (Prop. Ex. 73 at 1212; Death Cert. Ex. 37 at 876; Mour. Tr. Ex. 97 at 2243-5.) The new evidence regarding Nagle’s relationship with Spartichino is imputed to the Commonwealth. First, Nagle met with Spartichino at a Suffolk Lockup on April 22, May 1 or 18, 1981 or June 22, 1981, which falls either before or during the period in which Rodwell was allegedly making statements to Nagle. (D.N. Int. Ex. 98 at 2320-21; D.N. Dkt. Suff.’82 Ex. 30 at 64 773; D.N. Dkt. Brght. Dist. Ex. 108 at 2480-83.) Second, Spartichino personally drove Nagle from Billerica to Greenfield. (D.N. Int. Ex. 98 at 2399.) This knowledge is imputed to the Commonwealth because Spartichino was the lead investigator on the Rose murder and had been attached to the Middlesex D.A.’s Office for six years by the time of Rodwell’s trial. (T.S. Rep’t. Ex. 39 at 880.) Tr. 4/53-4. Finally, the fact that Nagle testified in U.S. v. Mourad in his capacity as a DEA informant was likely actually known to the Commonwealth, and if not, is imputed to them and is newly discovered evidence. As part of Mourad, the transcripts of Nagle’s testimony in Rodwell’s trial were secured by the A.U.S.A. and given to the defense. (Mour. Tr. Ex. 97 at 1886-94, 20392042.) It is most likely that the A.U.S.A. in that case simply contacted the Middlesex D.A.’s Office to secure the transcripts, which would clearly give Middlesex actual knowledge of the fact that Nagle was testifying (and testifying in his capacity as a DEA informant, since the AUSA would have likely told Middlesex about the case and Nagle’s testimony), that he would likely be questioned about Rodwell’s trial, and that such testimony would contain material evidence for Rodwell’s case. Further, the following statements made by A.U.S.A. Patterson during the Mourad trial in 1983, just fourteen months after Rodwell was convicted, support the conclusion that Middlesex had actual knowledge of Nagle’s testimony as these statements regarding Nagle’s participation in Rodwell’s trial could not have been obtained from reading the trial transcripts alone: Court: I am asking you as a U.S. Attorney, if you have checked to see if [Nagle] was somehow sent in with the intention of getting information from [Rodwell], or not sent in but asked to do it? A.U.S.A: No, your Honor. He was not. (Mour. Tr. Ex. 97 at 2041.) It follows that the A.U.S.A. had to have contacted the Middlesex D.A.’s Office (or an investigating officer) to gather such information, as there is no other source that could have 65 confirmed for her that Nagle was or was not sent into Billerica with the intent of gathering information. Further, knowledge that Nagle testified in Mourad can be imputed to the Commonwealth because Nagle was informing for the DEA while maintaining close ties with law enforcement agencies under the umbrella of the Commonwealth of Massachusetts. See Comm. v. Lykus, 451 Mass. 310, 326-328 (2008) (holding that knowledge of FBI could be imputed to Commonwealth because of high degree of cooperation between state and federal prosecutors and FBI’s awareness that defendant’s motion for all lab reports had been allowed.) Awareness by the A.U.S.A. in Mourad of information within the Rodwell transcripts that revealed Rodwell’s thwarted attempts to cross examine Nagle regarding his status as a government informant is another factor to be considered by this Court to show that Nagle’s testimony in Mourad is imputed to the Commonwealth. Id. Actions by the Middlesex D.A. office in sending transcripts of Nagle’s testimony in the Rodwell trial to the A.U.S.A. in Mourad (as well as presumably discussing how Nagle obtained the alleged statements from Rodwell with the A.U.S.A.) reveals a cooperative effort between the Middlesex District Attorney’s Office and the federal prosecutors in the Mourad trial. As stated by the Supreme Judicial Court in Lykus, “the circumstances of this case fall well within the core of the principle under which the actions of one sovereign may be imputed to another.” Id at 783. Finally, Nagle’s testimony in Mourad can be imputed to the Commonwealth through the Department of Corrections. Under Kyles, a prosecutor has a duty to learn all favorable evidence “known to others acting on the government’s behalf in the case.” Kyles, 514 U.S. at 437. Nagle’s 2006 letter shows that the Department of Corrections was involved in some way in promising that Nagle “not be put in harm’s way” in exchange for his testimony in Rodwell and Mourad. 66 D.N. Ltr.’06 Ex. 88 at 1831. Further, as noted above, D.O.C. would have had to have been aware of Nagle’s and Rodwell’s placement in Billerica, as it is ultimately D.O.C. that determines where prisoners are held. Thus, since D.O.C. was involved in both the placement of Nagle in Billerica and in the promises, rewards, and inducements offered to him it is clear that they are “acting on the government’s behalf” by aiding the Commonwealth in having Nagle secure the alleged statements from Rodwell and in testifying about them. Kyles, 514 U.S. at 437. Thus, any knowledge of the D.O.C. with regards to any promises, rewards, or inducements offered to Nagle as well as the intentional placement of Rodwell and Nagle is imputed to the Commonwealth. b) THE GOVERNMENT FAILED TO CORRECT PERJURED TESTIMONY BY DAVID NAGLE AT RODWELL’S TRIAL AND ALSO FAILED TO CORRECT THE MATERIAL MISSTATEMENTS BY THE COURT WHICH THE COMMONWEALTH KNEW TO BE INCORRECT When the prosecutor contrives to procure the conviction of a defendant through deliberate deception of the Court and the jury by the presentation of testimony known to be perjured, it is as “inconsistent with the rudimentary demands of justice as is obtaining a like result by intimidation.” Mooney v. Holohan, 294 U.S. 103, 112 (1935). Further, where there has been intentional introduction of false testimony, or the prosecutor has remained silent when he knew the witness had perjured himself in denying an arrangement with the prosecutor, a strict standard of materiality is applied. In this situation, a conviction is invalid if there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Comm. v. Gilday, 382 Mass. 166, 177 (1980). Additionally, false testimony includes not only affirmative misstatements, but also the failure of a witness to be entirely truthful. Alcorta v. Texas, 335 U.S. 28 (1957) (Court reversed conviction because witness’ testimony created a “false impression” and the prosecutor allowed witness to testify knowing that witness was not 67 entirely forthcoming but never disclosed to defendant or elicited the truth at trial.) Further, “Jurors suspect [informants’] motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable…We have therefore allowed defendants ‘broad latitude to probe [informants’] credibility by crossexamination’ and have counseled submission of the credibility issue to the jury ‘with careful instructions.’” Banks v. Dretke, 540 U.S. 688, 702 (2004) citing On Lee v. U.S., 343 U.C. 747, 757 (1952). As such, the suppression of a key witness’ informant status creates a situation in which “one could not plausibly deny the existence of the requisite ‘reasonable probability of a different result’ had the suppressed information been disclosed to the defense,” and therefore the materiality prong of Brady is met. Id. citing U.S. v. Bagley, 473 U.S. 667, 675 (1985). With regard to the first situation in which Brady can apply, the Commonwealth allowed multiple instances of perjury to stand during Nagle’s testimony at Rodwell’s trial that the prosecution knew, or should have known, was perjured. “The Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Augurs, 427 U.S. at 103 (internal citations omitted) See also, Tuccieri, 412 Mass. at 405 Fn. 3 (1992). In the case at hand, Nagle made multiple statements during his testimony that were relied upon by the government as key evidence to convict Rodwell that the Commonwealth knew or should have known to be perjured. The Commonwealth also failed to correct a material misstatement of fact made by the Court regarding Nagle’s status as a DEA informant35 (citing Walther); a statement which masked the very truth of Nagle’s long standing relationship with the 35 “I have read this Walthier (sic) case. That was a highly specialized case of a regular paid informant for the Drug Enforcement Administration. And that was a case with a regular, settled, long-standing practice of the informant being encouraged and paid by the DEA for his information. This is not that situation…This does not go to the merits of the case and so I’m not going into any issue as to whether or not he’s a Governmental agent.” Tr. 4/150-51. 68 federal government. The new evidence discovered by Rodwell reveals that there are at least four specific statements made by Nagle that were perjured that the Commonwealth let stand despite the fact that they knew, or should have known, that such statements contained perjured information. The failure of the Commonwealth to provide Rodwell with this evidence severely crippled his ability to impeach Nagle’s testimony. The first instance of uncorrected perjury was when Nagle was directly asked about his criminal record, one prior charge after another. When asked what his next arrest was after 1976, Nagle replied that it was September 11, 1980. Tr. 4/113 Nagle was arrested on May 9, 1980 by the Somerville Police at DEA headquarters, and after that arrest the police informed the bail commissioner that Nagle was a DEA informant. (Mour. Tr. Ex. 97 at 2243-44.) Knowledge by the defense of Nagle’s arrest at DEA headquarters and the subsequent bail hearing would have allowed impeachment on Nagle’s bias due to his relationship with the government, but also on his likelihood to fabricate testimony because of the rewards he had received for information in the past. Rodwell’s attorney attempted to expose Nagle’s status as a government informant through a pretrial motion and at trial, but was denied permission to do so. Tr. 4/151. (PrTr. Mot. Hr’g Ex. 2 at 37.) Had defense counsel been aware of Nagle’s arrest at DEA headquarters and subsequent events, he would have informed the Court, and the trial judge would have seen that Nagle’s was a “case of a regular paid informant for the Drug Enforcement Administration” (Walther). Tr. 4/150-51. Rodwell was never able to scratch the surface Nagle’s ties to the DEA at trial, being limited to crossing Nagle only on the incomplete criminal history to which he testified, and nothing about his status as a DEA informant or the special treatment he had received in Massachusetts cases because of it. This new evidence exposes the hidden fact that Nagle was a government informant and is not merely cumulative or impeaching, as the 69 Commonwealth carefully failed to turn over any specific evidence that might link Nagle to the DEA. The next instance of uncorrected perjury was when Nagle testified that the first time he met with any law enforcement officer about the Rose homicide was on July 9, 1981 at Billerica with Spartichino. During trial, the judge instructed the D.A. to ask Nagle “…before speaking, or during the time he was speaking to Rodwell, whether he in any way communicated with any police officer in connection with this case.” Tr. 4/119. The A.D.A. obliged, and when Nagle was directly asked if he met with any police officer associated with the Rodwell case before or during the time that Rodwell was allegedly making statements to him, he said no. Tr. 4/120 Nagle went on in his testimony to further describe his meetings with law enforcement: Counsel: When was the very first time you ever spoke to any law enforcement official… about the Rose homicide, sir? Nagle: July 9, 1981. . . Counsel: And whom did you talk to then? Nagle: Lt. Spartichino of the State Police. . . Tr. 4/140-42. Counsel: Nagle: Counsel: Nagle: . . .the first time you met Lt. Spartichino was where? In Billerica House of Correction. Had you ever met Lt. Spartichino whatsoever before that? Never in my life. . . Tr. 4/192 However, in Nagle’s interview on May 25, 2012, he stated the following: Nagle: White: Keehn: Nagle: . . .and then Spartichino showed up. Oh, he just showed up. I see. At Billerica? No. At -- when I was in Suffolk County Courthouse. (D.N. Int. Ex. 98 at 2320-1.) Not only does this contradict Nagle’s testimony about where he met Spartichino, it also contradicts the date Nagle claimed they first met, because the only time that Nagle would have been in the Suffolk County lockup was on April 22, May 1 or 18, (District Court arraignment) or June 22, 1981 (Suffolk Superior not-guilty plea to four counts of Armed Robbery). (D.N. Dkt. 70 Suff.’82 Ex. 30 at 773; D.N. Dkt. Brght. Dist. Ex. 108 at 2480-83.) This perjury is material because Nagle had testified that the last time he spoke to Rodwell was at “the end of June (1981).” Tr. 4/153. Thus, a meeting between Spartichino and Nagle on April 22, May 1 or 18, or June 22, 1981 would have been before or during the time Rodwell was allegedly making statements to Nagle and not after, as Nagle originally testified. The Suffolk lockup meeting between Nagle and Spartichino shows additional incentive for Nagle to fabricate testimony in favor of the Commonwealth; Nagle testified that when he first met with Spartichino, Spartichino stated that he would speak on Nagle’s behalf in his pending cases. Tr. 4/143. If the A.D.A. had fulfilled his constitutional duty to disclose or correct (Alcorta36) Nagle’s false testimony about the date of his first meeting with Spartichino, defense counsel would have been able to impeach Nagle, thereby discrediting Spartichino and the integrity of the prosecution. Kyles, 514 U.S. at 437. If the jury had known that the offer to speak on Nagle’s behalf was made during, and possibly before, the time that Rodwell allegedly made the incriminatory statements to Nagle, the jury would certainly have found much greater incentive for Nagle to falsify testimony or even that Nagle was actually sent into Billerica to gather information in return for favorable treatment. Nelson, 3 Mass.App.Ct. 90, 99-100. Unfortunately, the Commonwealth failed to correct this perjured testimony at trial and instead allowed the jury and the Court to believe that Nagle had reached out to Spartichino after Rodwell had made incriminating statements, with no promise that Spartichino would do anything for him. The actual date and location of Nagle’s first meeting with Spartichino was known to the prosecutor under Kyles because Spartichino’s knowledge of the meeting at a Suffolk Lockup on 36 False testimony includes not only affirmative misstatements, but also the failure of a witness to be entirely truthful. Alcorta v. Texas, 335 U.S. 28 (1957) (Court reversed conviction because witness’ testimony created a “false impression” and the prosecutor allowed witness to testify knowing that witness was not entirely forthcoming but never disclosed to defendant or elicited the truth at trial.) 71 April 22, May 1 or 18, or June 22, 198137 was imputed to the Commonwealth. Kyles, 514 U.S. at 437. Further, the Commonwealth has continued to insist that Nagle did not communicate with law enforcement prior to or during the time he was obtaining statements from Rodwell, adopting the U.S. District Court’s statement that Nagle had “not then communicated with any police officer concerning the defendant’s case.”38 (Opp’n 4th Mot. N. Tr. Ex. 51 at 1005.) The third instance of perjury that the Commonwealth knew was false and failed to correct occurred when Nagle stated that Spartichino arranged his transfer to Greenfield, but definitely did not drive Nagle to Greenfield personally.39 Tr. 4/164. However, during his interview at Bridgewater, Nagle stated that Spartichino had personally driven him to Greenfield in July 1981. (D.N. Int. Ex. 98 at 2399.) Again, the Commonwealth would have been aware of this through Spartichino. Kyles, 514 U.S. at 437. Nagle’s testimony that he reached out to McDermott who then introduced him to Spartichino is the fourth significant instance of uncorrected perjury. Tr. 4/142. In 2012, upon learning of Nagle’s perjury, McDermott adamantly denied any such contact. (W.M. Aff. Ex. 99 at 2423.) Clearly, Spartichino knew that Nagle’s testimony about McDermott was a lie (Spartichino sought Nagle out at Suffolk lockup in April, May, or June 1981), but failed to correct it. By allowing the testimony that McDermott introduced Nagle to Spartichino to stand, the prosecutor led the jury to the conclusion that Nagle had contacted Spartichino under his own 37  (D.N. 38 Dkt. Suff.’82 Ex. 30; D.N. Dkt. Brght. Dist. Ex. 108.)   “Rodwell claims that the newly discovered evidence…shows that prior to trial, Nagle was a government informant and therefore was biased in favor of the prosecution, and says that the trial prosecutor’s failure to disclose more about Nagle’s being an informant amounted to suppression of exculpatory evidence.” (Opp’n 4th Mot. N. Tr. Ex. 51 at 1005.) “[The SJC and U.S. Court of Appeals] concluded that Nagle was not a government agent when he heard Rodwell’s admissions in jail beginning in May 1981, because he was not there at the behest of the police…[Nagle] had not communicated with any police officer during the [Rodwell’s] case.” Id. citing Rodwell, 394 Mass. at 676. 39 Counsel: Did [Spartichino] take you out [to Greenfield] personally? Nagle: No, he didn’t. Counsel: Did he arrange to have somebody take you out there? Nagle: Yes, he did. Tr. 4/164.   72 volition, that they had no prior relationship, and that their communication about Rodwell’s case was limited to one recorded and one unrecorded interview. This served to bolster Nagle’s credibility and image as an inmate who just happened to hear something. McDermott’s affidavit also highlights the second instance of perjury, revealing the hidden truth that Spartichino reached out to Nagle on April 22, May 1 or 18, or June 22, 1981 at a Suffolk lockup. Therefore, McDermott’s affidavit is new evidence that would have given Rodwell ample ground to show that the Commonwealth sought out Nagle to get information for them, instead of Nagle seeking out the Commonwealth with already obtained information. This could have caused the jury to discredit Nagle as they could have found motive for Nagle to fabricate his testimony about Rodwell’s statements. The Commonwealth’s failure to correct Nagle’s perjury that Spartichino merely arranged for his transportation to Greenfield, along with Nagle’s perjured testimony about when, where, and how many times he met Spartichino, exposes a much stronger, pre-existing relationship between Nagle and Spartichino that the Commonwealth concealed from the jury by suppressing exculpatory evidence and preserving false testimony. Finally, the prosecutor failed to correct the Court when it unknowingly misstated the applicability of Walther to Nagle. The new evidence reveals that the prosecutor knew or should have known prior to and at the time of Rodwell’s trial that Nagle was a DEA informant: Somerville police had arrested Nagle at DEA headquarters on a Middlesex charge, learned that Nagle was a DEA informant, informed the bail commissioner of Nagle’s status as a DEA informant, and witnessed the release of Nagle on $500 cash bail after defaulting- all prior to 1981. (Mour. Tr. Ex. 97 at 2243-5.) Indeed, the Middlesex DA’s office would not have only witnessed Nagle’s release, but they would have had to consent to the bail (and to the original 73 personal recognizance release). The failure by the prosecutor to correct the Court’s misapplication of Walther to Nagle was fraud actually effected on the Court. The Commonwealth intentionally declined to advise the Court that Nagle was a regular, longstanding DEA informant, thereby contaminating one of the most critical decisions of the Court in the Rodwell trial. Regardless of whether or not the government encouraged one of its witnesses to give false testimony, the prosecutor “must advise the Court of such false testimony.” Comm. v. Hill, 432 Mass. 704, 714 (2000), citing Comm. v. Nelson, 3 Mass.App.Ct. 90, 100-101 (1976) and Gilday, 382 Mass. at 177. “Indeed, if it is established that the government knowingly permitted the introduction of false testimony, reversal is ‘virtually automatic.’” U.S. v. Walloch, 935 F.2d 445, 456 (2nd Cir. 1991). In Hill, the defendant was convicted of first degree murder based partially on the testimony of one Israel Lewis who, on cross, stated that he was testifying only to rectify what had happened to the victim, and not to get a better dispensation on a pending case. Hill, 432 Mass. at 707. However, at Lewis’ plea hearing eight months later, he tried to enforce an alleged plea agreement with the Commonwealth. Id. at 708. The Commonwealth admitted at this point that Lewis had been told by police and the D.A.’s Office that his testimony would be taken into consideration in his case. Id. The hearing judge found that a “loose” agreement existed between Lewis and the Commonwealth and that the Commonwealth had led Lewis to believe that his charges would be dropped if he substantially cooperated in the murder trial. Id. at 710. Hill brought a motion for new trial and the SJC found that Lewis had entered into an agreement with the Commonwealth, and that the agreement was not disclosed to the defendant. Id. at 711. The Court further found that the prosecutor bolstered Lewis’ perjury in his closing argument by stating that Lewis had “something to lose” by testifying. Id. at 714. The Court found that because 74 Lewis’ testimony established a motive for the defendant to commit the murder, he was an “important link” in the evidence against the defendant. Id. Thus, the failure of the Commonwealth to disclose this agreement, despite requests for such information was “of constitutional dimension” and Lewis’ false testimony could have affected the verdict; the defendant had adequately shown prejudice and the motion for a new trial was proper. Id. at 71516. The Court went on to note that “any communication that suggests preferential treatment to a key government witness in return for that witness’s testimony is a matter that must be disclosed” as even without precise terms the government can easily induce a witness to believe that his treatment is dependent on his testimony. Id. (internal citations omitted) (emphasis added) Finally, once again, when the original trial was infected with constitutional prejudice, a new trial must be granted. Earl, 356 Mass. at 184 (1969.) In Gilday, the Court stated that the prosecutor had a duty to disclose any arrangements for favorable consideration made with a witness’s attorney, even if the witness (Fleischer, in this case) himself was not aware of the arrangement and so did not commit perjury by testifying that there was no deal. Gilday, 382 Mass. at 176. However, the Court held that the suppression of this evidence was harmless “beyond a reasonable doubt” because the evidence against Gilday was overwhelming and Fleishcer’s testimony was at best cumulative of other similar evidence and not as detailed and damaging to Gilday as the testimony of other witnesses. Id. at 179. But see, Comm. v. Collins, 386 Mass. 1, 8 (1982) (“when the failure to disclose is coupled with the blatant misrepresentation made by the prosecutor in his closing argument to the jury, the conclusion that the conviction cannot stand is inescapable.”) In Collins, even though the plea offer was not quid pro quo for the witness’ testimony, the Court held that the undisclosed offer of leniency could lead the jury to the conclusion that the 75 witness had reason to seek such favor with the government by testifying: “evidence tending to impeach the credibility of a key prosecution witness is clearly exculpatory. The existence of any understanding or agreement between the government and a key government witness is exculpatory evidence which must be revealed to the defendant, provided it is material.” Id. at 9. (internal citations omitted) The Collins Court further held that “the failure to disclose ‘must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.’” Id. citing Ellison, 376 Mass. at 22. (emphasis added) The Court could not say that the jury would not have been swayed by knowledge of the plea offer or that it did not create reasonable doubt. Id. at 13. Furthermore, the Collins Court held that the defendant was entitled to the information because it was material exculpatory evidence and that the defendant’s convictions must be reversed because the prosecutor deliberately deceived the Court and the jury as to the agreement. Id. at 13-14. Therefore, because the other evidence in Collins was not strong, the witness’ credibility was enormously significant. Id. In the case at hand, Nagle’s perjury clearly rose to the level of having “any reasonable likelihood” of an effect on the judgment of the jury. Gilday, 382 Mass. at 177. Nagle’s testimony was carefully calculated to mislead the jury and the defense by eliminating a) the possibility of learning of Nagle’s role as a government informant for the DEA; and b) drastically downplaying his relationship with Spartichino and the timeline of his meetings with law enforcement. Had Nagle’s perjured testimony been disclosed or corrected, the jury would have known that Nagle was a regular, paid informant for the DEA, that he met with Spartichino before or during the 76 time that Rodwell was allegedly making statements to Nagle, that during said meeting Spartichino promised to talk to the D.A.’s handling Nagle’s cases, that Nagle and Spartichino had a close enough relationship that Spartichino personally drove Nagle from Billerica to Greenfield for his transfer, and that because Nagle was not introduced to Spartichino by McDermott, he likely had a preexisting relationship with Spartichino. Unlike in Gilday, the testimony of Nagle was not simply cumulative of other evidence; Nagle was the prosecution’s key witness to a much greater extent than the witnesses in Hill and Collins. Nagle’s testimony was the only testimony upon which Rodwell could be convicted. M.G.L. 233, § 20I. There was no physical evidence of any kind linking Rodwell to the murder of Louis Rose and the only substantive testimony against Rodwell other than Nagle’s was the testimony of Holmes, a persuasively impeached immunized coconspirator.40 Thus, as the key prosecution witness, Nagle’s testimony was paramount to the prosecution of Rodwell. The prosecution failed to correct testimony that directly related to the consideration given to Nagle for his testimony and allowed testimony to be entered into the record that downplayed Nagle’s connections to Spartichino and the government. Additionally, the Commonwealth itself stressed the importance of Nagle’s testimony in its closing as well as continuing to misrepresent him as a run-of-the-mill inmate who stumbled upon a jailhouse confession. During the Commonwealth’s closing argument, A.D.A. Siegel referenced Nagle’s testimony, stating, “[w]e have the testimony of David Nagle. . . And, ladies and gentlemen, if you believe it, it’s very, very potent evidence. It’s just as powerful as the testimony of Frankie Holmes.” Tr. 6/53. (emphasis added) A.D.A. Siegel portrayed Nagle to the jury as someone who must have told the truth, stating “consider the type of statements that you heard Mr. Nagle testify about, and whether they seem to ring of truth, whether they seem to 40  Which  is  insufficient  for  a  conviction  under  Mass. Gen. Laws ch. 233, § 20I.   77 come from the killer.” Tr. 6/33. Additionally, the Commonwealth refuted any suggestion that Nagle could possibly have fabricated his story: The defense would have you believe that David Nagle got all of his information from the newspapers, or, he got his information from talking with Frankie Holmes. But, members of the jury, you heard what Nagle said. You heard the type of testimony he gave, the type of details he got into. Did it strike you as something that he pulled from the newspaper? That he got from Frankie Holmes…? Tr. 6/53. A.D.A. Siegel went on to state “The testimony of David Nagle, also serves as a powerful and potent portion of the Commonwealth’s case, which makes it even more convincing.” Tr. 6/53-6. (emphasis added) All a defendant must show to set aside his conviction is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 104. Here, Nagle’s perjury hid his substantial motive to fabricate testimony and his bias for the Commonwealth, which could clearly have had an impact on the jury’s determination of credibility. Additionally, the Commonwealth emphasized the importance of Nagle’s testimony, thus bolstering Nagle’s perjury and making his testimony even more important in the eyes of the jury. Hill, 432 Mass. at 714. The jury took the Commonwealth’s portrayal of Nagle at face-value and convicted Rodwell solely on the testimonies of Holmes and Nagle. Thus, this Court must grant Rodwell’s motion for a new trial as the original trial was tainted with constitutional prejudice. Earl, 356 Mass. at 184, Hill, 432 Mass. at 714. In the alternative this Court should, at the very least, grant an evidentiary hearing on this motion due to the Commonwealth’s failure to correct perjured testimony and misstatements by the Court in this case. c) THE GOVERNMENT COMMITTED BRADY VIOLATIONS BY FAILING TO TURN OVER EVIDENCE AFTER A SPECIFIC REQUEST WAS MADE BY RODWELL PRE-TRIAL 78 The second situation in which Brady can apply “is characterized by a pretrial request for specific evidence.” Agurs, 427 U.S. at 104. While “[d]ue process does not require ‘prosecutorial clairvoyance’ it does require ‘continued vigilance on the part of the Commonwealth for information the Commonwealth knows, or should know, the defendant seeks as material to his defense.’” Daniels, 445 Mass. at 404. (internal citations omitted) This duty includes requiring the Commonwealth to learn of “any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437. In this case there were two specific requests made by Rodwell for discovery that was in the prosecutor’s possession that he failed to produce. Rodwell requested “all promises, rewards, and/or inducements of any kind” and “any evidence which may be used to impeach or discredit any witness the Commonwealth intends to call at the trial.” (PrTr. Mot. Disc. Ex. 1 at 2-3.) Specifically, Rodwell requested if: the Commonwealth has requested or authorized the payment of any sums of money to any informant or cooperating witness who has agreed to testify for the Commonwealth, who participated in the investigation which garnered the above-entitled indictments, or to any other prospective witness and whether or not any state has requested or authorized or transmitted any currency to any of the above-mentioned people. Id. at 4. Rodwell also requested any and all pending criminal cases against any witness planned to be called by the Commonwealth. Id. at 2. Claiming to comply with the discovery order, the Commonwealth’s discovery provision stated: No promises, rewards or inducements have been offered or given to Mr. Nagle regarding his testimony. Lt. Spartichino made that clear to Mr. Nagle; however, the lieutenant did tell him that when this case was finished, he (Lt. Spartichino) would write to or inform the District Attorneys of Middlesex and Suffolk Counties of Mr. Nagle’s cooperation in the matter. Mr. Nagle has cases pending in these two counties. (Disc. Prov. Ex. 96 at 1876.) However, it certainly appears that the defense was never informed of the Middlesex charge from 1980 when Nagle was arrested at DEA headquarters. 79 These requests should have put the Commonwealth on notice that Rodwell was requesting discovery regarding any witness’ agency status with any government agency that could be used to impeach a Commonwealth witness. Nagle’s status as a paid DEA informant would clearly have been the sort of discovery contemplated by this request. Furthermore, when the government fails to disclose evidence after a defendant has made a specific and relevant request for exculpatory evidence, the prosecutor’s failure to respond will be excused only “if the error did not influence the jury, or had but very slight effect.” Collins, 386 Mass. at 9. (internal citations omitted) When the prosecutor fails to produce evidence despite a specific request by the defendant, relief will only be denied when the error is harmless beyond a reasonable doubt. Gilday, 382 Mass. at 178. Due process is violated where, upon request, the prosecution suppresses evidence material to defendant’s guilt or punishment “irrespective of the good faith or bad faith of the prosecution.” Agurs, 427 U.S. at 104, fn. 10 citing Brady, 373 U.S at 87. Further, when the defendant has specifically requested exculpatory evidence, the defendant “need only demonstrate a substantial basis exists for claiming prejudice from the nondisclosure.” Tucceri, 412 Mass. at 412. In Daniels, the defense requested discovery concerning one Wanda Brady, who had identified the defendant as being involved in the victim’s death. Daniels, 445 Mass. at 397-98. The Court denied this motion in substantial part. Id. After trial, defense counsel discovered evidence that called Brady’s identification into question, and based on this new evidence the defendant moved for the discovery of all police reports, interviews, and statements connected with the investigation, and also moved for a new trial. Id. The motion judge denied both motions without a hearing. Id. at 401. The Court concluded that the motion judge should have granted the 80 defendant’s request for post-conviction discovery, and that a hearing on the new trial motion may have been warranted. Id. at 405. The Court went on to state that when the affidavits accompanying a motion for new trial establish a prima facie case for relief, the judge may authorize discovery as appropriate. Id. at 405-06. To meet the prima facie standard for discovery under a motion for a new trial based on newly discovered evidence, the defendant must make specific, not speculative or conclusory, allegations that the newly discovered evidence would have “materially aided” the defense. Id. In Daniels, the Court concluded that the defendant established a prima facie case for post-trial discovery because Brady’s identification was “the peg on which the defendant’s conviction hung or fell,” and evidence that the assumption on which Brady rested her identification was false would have seriously weakened or shattered that identification. Id. at 408. Further, even though files relating to other investigations need not be “routinely disclosed to a defendant upon request,” when the material has been specifically requested and the defendant has made a showing that the material appears to be relevant to his defense, the Commonwealth has a continuing duty to review the material and to disclose to the defendant any “favorable evidence in its possession that could materially aid the defense against the pending charge.” Id. at 409-10. In the case at hand, defense counsel requested all pending and historical criminal charges of Nagle, as well as any funds paid to Nagle by any state. (PrTr. Mot. Disc. Ex. 1 at 2-4.) Despite these requests, the Commonwealth did not provide Rodwell with any information regarding Nagle’s status as a DEA informant or his May 9, 1980 arrest at DEA headquarters. (Mour. Tr. Ex. 97 at 2243.) The Commonwealth never produced a specific docket number of the pending Middlesex case in any of its notices of discovery, nor did it produce Nagle’s June 12, 1981 bail hearing where, only months before Rodwell’s trial, Attorney Diane Juliar stated that Nagle was 81 providing information to law enforcement in Suffolk and Middlesex counties. (D.N. Bail Midd.’81 Ex. 29; T.W. Aff. Ex. 63; Affidavit of Counsel.) If anything, this case goes even further than Daniels. Nagle is not simply a key witness, he is the only witness upon whose testimony Rodwell could have been convicted. Under M.G.L. 233, § 20I. Without Nagle’s testimony, Holmes’ testimony would fall short of the threshold required for a conviction under 233, § 20I and the Commonwealth would have had no possibility of convicting Rodwell. As opposed to requesting evidence on an unrelated case in which a witness had made a relevant, exculpatory statement, counsel in this case requested relevant information about a case pending against the key prosecution witness. Daniels, 445 Mass. at 405. The circumstances and favorable treatment with regard to Nagle’s May 9, 1980 arrest were not only relevant as to the specific request for pending charges against Nagle, but they also revealed his status as a DEA informant and that the Somerville Police and Middlesex D.A.’s Office had knowledge of that status – information highly relevant to the Massiah claim raised by Rodwell’s counsel. Tr. 4/119. (Mot. Supp. Ex. 68; Mour. Tr. Ex. 97 at 2243-44.) In Daniels, the exculpatory evidence that the prosecutor failed to produce could have been used to impeach the identification made by a key prosecution witness. In this case, the evidence specifically requested by the defense would have shown that Nagle was a DEA informant, and trial counsel, if armed with this information, could have used it to impeach Nagle by showing an incentive to fabricate testimony for preferential treatment as well as cause for bias in favor of the Commonwealth. Moreover, evidence of the deal to which Nagle refers in his 2006 letter could have furthered the showing of bias and incentive to fabricate on Nagle’s part.41 Nagle’s testimony was not only “the peg on which the defendant’s conviction hung or fell,” it was the 41  Specifically,  Nagle  stated  that  he  had  a  “deal  to  testify  in  a  murder  case  ”  and  that  if  “D.O.C.  doesn’t  live  up  to   the  bargain  [he’ll]  have  to  go  back  on  [his]  deal.”  D.N. Ltr.’06 Ex. 88   82 entire rack. Daniels 445 Mass. at 408. It is abundantly clear, then, that having this information available to impeach Nagle would have, at the very least, “materially aided” the defense, meeting the standard for establishing a prima facie case for relief. Id. at 405-06. Beyond Daniels, when the prosecutor fails to produce evidence despite a specific request by the defendant, relief will only be denied when the error is “harmless beyond a reasonable doubt.” Gilday, 382 Mass. at 178. In this case, the prosecution withheld relevant, exculpatory impeachment evidence regarding the prosecution’s key witness, and it would be unreasonable for any Court to determine that such evidence would have had no impact on the jury beyond any reasonable doubt. Thus, this Court must grant Rodwell’s motion for new trial because the prosecution withheld specifically requested exculpatory evidence in clear violation of Mr. Rodwell’s constitutional rights. Earl, 356 Mass. at 184. In the alternative this Court should, at the very least, grant an evidentiary hearing on this motion. Finally, even in the face of a general Brady request, the prosecutor’s failure to disclose material evidence will result in a new trial if there “is a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial” and if “it would have been a real factor in the jury’s deliberations.” Tucceri, 412 Mass. at 412-13. (internal citations omitted) In the pretrial conference report, the Commonwealth agreed to disclose any facts of an exculpatory nature within the possession, custody, or control of the prosecutor. (PTC. Ex. 43.) In Tucceri, the defendant was charged with rape, kidnapping, and other charges, and the prosecution was in possession of photographs that showed the defendant with a moustache on the night of the attack. Tucceri, 412 Mass. at 403. The victim had repeatedly stated that her attacker was clean-shaven, and these photographs would have suggested that the defendant was not the attacker. Id. The defendant did not specifically move for these photographs, and instead simply 83 made a general request for exculpatory evidence. Id. The Court ruled that the nondisclosure of the photographs required the ordering of a new trial, as they cast doubt on the identification of the defendant as the attacker by the victim, showed that the victim and other witnesses were wrong in at least one aspect of their sworn testimony, and was not “merely cumulative” with testimony that the defendant had a moustache at this time. Id. at 414 (emphasis added.) These factors meant that the photographs would have been a real factor in jury deliberations, and their introduction might have accomplished something material for the defense. Id. In this case, even if defense counsel’s specific request had not covered this information, the prosecutor failed to disclose Nagle’s informant status despite having knowledge of it from his arrest by the Somerville Police at DEA headquarters. ((Mour. Tr. Ex. 97 at 1886-90, 2243-44; D.N. Dkt. Midd.’80 Ex. 69 at 1201-02.) Further, the prosecutor failed to disclose the favorable treatment that Nagle was receiving as a result of his connections with the government, as shown by his treatment during the time after his May 9, 1980 arrest (Nagle was placed on personal recognizance despite being charged with Armed Robbery and kidnapping, and then released again on $500 cash bail after defaulting). (D.N. Dkt. Midd.’80 Ex. 69 at 1201-02.) While in Tucerri the photographs served to impeach one aspect of the identification of the victim and other eyewitnesses, in this case the withheld evidence would have tainted all of Nagle’s testimony as it would have shown bias and incentive to fabricate testimony. Tucceri, 412 Mass. at 414; Kyles, 514 U.S. at 437. Therefore, since the evidence in this case would have caused the jury to question the credibility of Nagle’s testimony, and since Nagle was the key government witness, this evidence would have been a “real factor in the jury’s deliberations” regarding Nagle’s credibility. Tucceri, 412 Mass. at 403. This Court should grant Rodwell’s motion for a 84 new trial, or in the alternative grant a hearing on this motion, because of the failure of the prosecutor to provide this evidence in the face of a general request for exculpatory evidence. d) DAVID NAGLE, THE ONLY WITNESS UPON WHOSE TESTIMONY RODWELL’S CONVICTION COULD REST, HAS ESSENTIALLY ADMITTED TO COMMITTING PERJURY DURING THE RODWELL TRIAL As noted above, beyond all the external evidence showing Nagle committed perjury at Rodwell’s trial, Nagle essentially admitted to William Chase that he had committed perjury and was worried about being charged with it. (W.C. Aff. Ex. 106 at 2464.) “The dignity of the United States Government will not permit the conviction of any person on tainted testimony.” Mesarosh v. U.S., 77 S.Ct. 1, 9 (1956) (holding that false testimony of an important witness was sufficient for reversal even if there was no evidence the prosecutor knew testimony was false). See also Alvarez v. U.S., 808 F.Supp. 1066 (S.D. N.Y. 1992) (holding that newly discovered evidence of lies and conflicting testimony of confidential informant and corroborating government agent was sufficient to support motion for new trial) and Williams v. U.S., 500 F.2d 105 (9th Cir. 1974) (holding that subsequent guilty plea to perjury of one of four agents who testified at defendant’s trial was sufficient for reversal). In this case, even if the prosecutor was unaware of the extent to which Nagle’s testimony was perjured beyond what was noted above, Rodwell has met the standard required for a new trial in this case. When perjured testimony is admitted into evidence without the knowledge of the Commonwealth, the applicable standard is analogous to that used when there is prosecutorial suppression of evidence favorable to the accused where there is no specific request for such evidence. Comm. v. Daigle, 379 Mass. 541, 547 (1980). Specifically, the perjured testimony must have had a substantial probability of altering the result of the case. Id.(internal citations omitted). Additionally, the defendant must show that the statements discovered after trial are 85 exculpatory and were material to a finding of guilt. Comm. v. Doherty, 394 Mass. 341, 349-350 (1985) (internal citations omitted.) “Material Evidence is that evidence which ‘on a consideration of the entire record’…creates a reasonable doubt that did not otherwise exist.” Id. In Daigle, the false testimony in question was a response to a question about whether or not the witness had pleaded guilty to a charge for bank robbery pending against him (witness said he had pleaded when, in fact, the indictment was still pending). Id. The Court ruled that this false testimony did not rise to the level of having a substantial probability of altering the result since the prosecutor was simply aiming to resolve a minor conflict in the testimony of an accomplice and the false answer was the result of the witness becoming confused. Id. at 547-548. Further, because there was other evidence of the witness’ leniency and bias because of his other testimony regarding his involvement in a series of other robberies, his false testimony could not have erased the juror’s thoughts regarding his bias. Id. Therefore, the perjured testimony was not material. In contrast, in the case at hand Nagle’s testimony was the only evidence on which Rodwell could be convicted (as Holmes was an immunized co-conspirator). His testimony about an alleged jailhouse confession by Rodwell was undoubtedly the single most important piece of evidence in this case. However, as noted above, Nagle essentially admitted to Chase that he committed perjury in the Rodwell trial, perjury severe enough that he was worried about being convicted on it and getting a life sentence. (W.C. Aff. Ex. 106 at 2464.) This is not a case of a minor witness committing perjury on a minor fact as was Daigle. This is not a case where the perjured testimony would not have affected the jury. This is not a case where the perjured evidence was merely cumulative of other evidence in the case. This is a case like Avarez and Williams where a key government witness committed a serious instance of perjury. In fact, this 86 case goes even beyond Alvarez or Williams; Nagle told Chase he was worried about getting a life sentence for his testimony in the Rodwell trial, and he was not merely an important witness in the Rodwell trial, it was the only witness upon whom Rodwell’s conviction could rest. Evidence that Nagle committed perjury clearly rises to the level of materiality contemplated in Doherty. 394 Mass. at 349-350. As the only testimony upon which Rodwell could be convicted, evidence that Nagle committed perjury quite clearly “on a consideration of the entire record’…creates a reasonable doubt that did not otherwise exist.” Id. Additionally, in his opinion denying Rodwell’s first habeas petition, Judge Young pointed out that “Holmes’ testimony required corroboration, and Nagle’s testimony was introduced by the prosecution for this purpose. Pepe, 103 F.Supp.2d 129 Ex. 102 at 2435. Thus, there is absolutely no question that the perjury committed by Nagle would be material and have a substantial effect on the outcome of the case and a new trial is necessary. II. THIS COURT SHOULD GRANT RODWELL’S MOTION FOR A NEW TRIAL BECAUSE ANY ALLEGED COMMUNICATION BETWEEN RODWELL AND NAGLE WAS DONE IN VIOLATION OF RODWELL’S DUE PROCESS RIGHTS AND HIS SIXTH AMENDMENT AND ARTICLE 12 RIGHT TO COUNSEL Any statements that Rodwell allegedly made to Nagle should have been suppressed because they were obtained in violation of Rodwell’s Sixth Amendment and Article 12 right to counsel. It is in violation of a defendant’s Sixth Amendment and Article 12 rights to counsel to, after the right to counsel has been triggered and invoked and without defense counsel’s knowledge, admit into evidence statements of a defendant deliberately elicited by a jailhouse informant acting as a government agent. Comm. v. Murphy, 448 Mass. 452, 453 (2007). When a defendant’s incriminating statements are made to a paid informant who has been told to be alert to statements made by other prisoners (as Nagle had by the DEA), those statements will be inadmissible as being “deliberately elicited” from the defendant in violation of his Sixth 87 Amendment right to counsel, even if the informant does not initiate the conversation. U.S. v Henry, 447 U.S. 264, 272 (1980). Additionally, where the government has entered into an articulated agreement containing a specific benefit or promise thereof, the recipient inmate is a “government agent” for purposes of the Sixth Amendment, even if the inmate is not directed to target a specific individual. Murphy, 448 Mass. at 453. Further, simply bringing “the witness’s cooperation to the attention of prosecutors and the court” (as Spartichino promised he would do for Nagle at their first meeting) is sufficient to establish an agency relationship from the time that promise is made. Comm. v. Reynolds, 429 Mass. 388, 394 (1999), Tr. 4/143. The prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel. Murphy, 448 Mass. at 464. (internal citations omitted) In Walther, the case cited by Rodwell in his attempt to cross-examine Nagle on his informant status (and cited in the Court’s denial of the attempt to cross), the 9th Circuit ruled that when an individual was, at one time, a listed informant for the DEA and expected a probable reward for information gathered from a search, he was no longer simply a private citizen and was in fact a government agent. 652 F2d. at 790. In Walther, an airline employee and past regular, paid DEA informant opened a package being shipped on his airline under the assumption that it contained drugs, and his only purpose in opening the package was to look for drugs. Id. at 792. The employee opened the package in hopes of getting a reward from the DEA, and in fact had received rewards for giving information to the DEA in the past. Id. It did not matter that the employee had not made official contact with the DEA for approximately two years before making this search, nor that his file had been closed nearly two years before the search. Id. at 790, 793. It was dispositive that the informant had undertaken these types of searches in the 88 past and had been rewarded for providing information to the DEA gathered from said searches. Id. Further, while the Supreme Judicial Court is not bound by any decision of any federal Court other than the Supreme Court concerning federal law, the SJC does give great deference to decisions of federal courts if they seem persuasive. Murphy, 448 Mass. at 462. In Murphy, the defendant made statements to a jailhouse informant who, when pleading guilty to a federal charge, had been informed by the judge that any cooperation by the informant would be considered if the A.U.S.A. so moved. Id. at 458. The A.U.S.A. was told of the informant’s testimony and filed a motion to reduce the informant’s sentence by fifty percent. Id. The Court found that the informant was an agent of the government even though he had not been told to specifically seek statements from the defendant. Id. at 464. Further, it did not matter that the promise for consideration was made by the A.U.S.A. and the informant was giving information on a Commonwealth case, the Commonwealth “may not use information obtained by unlawful police conduct.” Id. at 465, citing Nix v. Williams, 467 U.S. 431, 441-42 (1984). In the end, the Court held that the jailhouse informant in Murphy deliberately elicited statements from the defendant in violation of his right to counsel, that the statements were not harmless beyond a reasonable doubt, and that a new trial was warranted. Id. at 471. In this case, like in Walther, Nagle was a regular, paid DEA informant for an extended period. Nagle was a registered DEA informant with an open file from 1979 until at least the spring of 1981 (with his registered payment prior to the Rodwell trial in February 1981) and there is strong evidence that Nagle was a DEA informant until 1984. (Mour. Tr. Ex. 97 at 214243, 2254.) This is significant because, unlike the evidence brought to light in Rodwell’s fourth motion for new trial which proved Nagle was a DEA informant after Rodwell’s trial, the Mourad transcripts show that Nagle was a DEA informant immediately before (and possibly during) the 89 time Rodwell allegedly made the statements. Even if Nagle stopped receiving documented payments from the DEA in February 1981, there was still only a span of at most three to four months between that last payment and the statements allegedly made by Rodwell; a much briefer period of time than the two years between closing the informant’s file and the search of the package in Walther. Further, as in Walther, Nagle had a regular relationship with the government in which he was rewarded for providing information, and he would have had a reasonable expectation of further rewards for providing such information. This Court should find Walther persuasive; under Walther Nagle was a regular, paid informant who had an expectation of reward for the information he gave on Rodwell’s case, and was therefore a government agent at the time he elicited statements from Rodwell. Accordingly, such statements were elicited in violation of Rodwell’s Sixth Amendment and Article 12 rights to Counsel. Even if this Court does not follow Walther, Rodwell’s alleged statements to Nagle should still be suppressed, and a new trial granted, under Murphy. In addition to being a longtime paid DEA informant until at least mere months before Rodwell’s alleged statements, it has come to light that Nagle met with Spartichino about Rodwell’s case on either April 22, May 1 or 18, or June 22, 1981 as opposed to on July 9, 1981 as Nagle initially testified. Tr. 4/141-42. (D.N. Int. Ex. 98 at 2321; D.N. Dkt. Suff.’82 Ex. 30; D.N. Dkt. Brght. Dist. Ex. 108.) At trial, Nagle never specifically stated any dates for any of the statements allegedly made by Rodwell, except stating that he first talked to Rodwell at the end of May or the first week of June, and that the last statement was made at the end of June. Tr. 4/118, 131, 152-3. Thus, even if Nagle and Spartichino met on the latest possible date, June 22, 1981, it is unclear which damaging statements allegedly made by Rodwell, if any, were made before June 22, and thus all of these statements are infected by Nagle’s meeting with Spartichino. . (D.N. Int. Ex. 98 at 2321; D.N. 90 Dkt. Suff.’82 Ex. 30; D.N. Dkt. Brght. Dist. Ex. 108.) Obviously a meeting at any of the dates before June 22 would taint all of Nagle’s alleged interactions with Rodwell, as they are all before Rodwell’s arrest date of May 22, 1981. Tr. 5/120. Further, since Nagle testified that Spartichino stated that he would write a letter and speak on Nagle’s behalf at their first meeting, (Tr. 4/143) and Spartichino indicated that he intended to speak to the D.A.’s on Nagle’s behalf (in the context of describing Nagle’s cross examination, as noted above) (T.S. Aff. Ex. 5), this promise is sufficient under Reynolds to make Nagle an agent of the Commonwealth with respect to Rodwell at the time of this meeting. Reynolds, 429 Mass. at 394. Additionally, even before May and June 1981, Nagle was an agent of the federal government because of his status as a DEA informant from 1979 until spring 1981, at the earliest. Once again, for the purposes of government agent status, it does not matter that Nagle was an agent of the federal government and was giving information on a Commonwealth case. Murphy, 448 Mass. at 465. Thus, any statements elicited by Nagle were elicited in violation of Rodwell’s Sixth Amendment and Article 12 rights to counsel. Additionally, the facts surrounding Nagle’s transfer to New York to testify in Mourad strongly suggest that he was still a DEA informant in November, 1982, and likely was never deactivated. Although Nagle testified in Mourad that he was transferred in late January 1983, shortly before the Mourad trial, in his interview he stated that he was actually transferred at most a few days after the Mourad defendants, in November 1982. (Mour. Tr. Ex. 97 at 2265, D.N. Int. Ex. 98. 2344-45.) Nagle was likely moved in an attempt to get further statements from the Mourad defendants. Additionally, this move was accomplished without a writ of habeas corpus ad testificandum appearing in the Mourad docket, or a Mittimus appearing on the docket of any of the cases for which Nagle was serving time. (D.N. Dkt. Midd.’80 Ex. 69 1201-02; D.N. Dkt. 91 Suff.’82 Ex. 30 at 774; Mour. Dkt. 2486.) The fact that Nagle was moved in such an expedited manner, all under the table, as part of a high-profile DEA investigation strongly suggests that Nagle still had a very close relationship with the DEA and that the DEA was still using Nagle as an informant in their investigations. The upshot of all this is that it was very likely that Nagle maintained his close relationship with the DEA as an informant throughout the time between 1979 and 1984, and was therefore a government agent for that entire period including when he elicited the alleged statements from Rodwell. Any statements allegedly made by Rodwell to Nagle were intentionally elicited. Direct questioning is not necessary for a statement to be elicited; when an informant creates an environment that lures the defendant into a false sense of trust it is sufficient for any statements by a defendant to be considered elicited and not merely spontaneous utterances. Id. at 470. In this case, Nagle ingratiated himself with Rodwell. While his trial testimony is unclear on the nature of how Nagle may have become friends with Rodwell, Nagle alleges that they were close enough that Rodwell asked him to fabricate testimony about Holmes. Tr. 4/134-35. Thus, according to Nagle’s own testimony he had created the type of environment described in Murphy in the hope of eliciting compromising statements from Rodwell for which he would be rewarded either by the DEA or by Spartichino. Finally, these statements were far from harmless beyond a reasonable doubt because, as noted above, Nagle’s testimony was the only testimony upon which Rodwell could be convicted. M.G.L. 233, § 20I. Therefore, any statements that Rodwell allegedly made to Nagle were unconstitutionally elicited by a government agent and should have been suppressed. A new trial is necessary to remedy this error, or in the alternative an evidentiary hearing on the issues raised in this motion. 92 III. THE EVIDENCE RELIED UPON FOR THE ABOVE CLAIMS IS EITHER NEWLY DISCOVERED OR MUST BE VIEWED IN A NEW LIGHT WITH THE DISCOVERY OF THE NEW EVIDENCE The following evidence is completely new and was never discovered by Rodwell or any prior counsel: The Mourad case, the Affidavit of William Chase, the Affidavit of William McDermott, the 1991 letter from Nagle to Judge White, and the recorded interview with David Nagle. In order to show that evidence is new the defendant must show that the evidence is material and credible, the evidence must carry a measure of strength in support of the defendant’s position, and that the evidence was unknown to the defendant or his counsel and not reasonably discoverable through reasonable pretrial diligence. Comm. v. Buck, 64 Mass.App.Ct. 760, 762-763 (2005) citing Comm. v. Brown, 378 Mass. 165 (1979), Comm. v. Pike, 431 Mass. 212 (2000) and Comm. v. Grace, 397 Mass. 303 (1986). All of the above evidence meets the criteria set forth in Buck. First, all of the new evidence was not reasonably discoverable before trial. The Mourad case was clearly not discoverable before trial, as the case took place in 1983. (Mour. Tr. Ex. 97 at 1881.) Further, in the era before information was easily accessible online it would have been impossible to execute the search performed by the defense investigator that eventually led to the discovery of Mourad. (Affidavit of Counsel.) The affidavit of William Chase is newly discovered because he is Nagle’s half brother and was not related to the investigation into the Rose murder in any other way, and further indicated that he had never revealed the statement Nagle made to him to any of Rodwell’s prior attorneys or investigators. (W.C. Aff. Ex. 106 at 2464.) The Affidavit of William McDermott is newly discovered because, like Chase, he had never given the information regarding not putting Nagle in contact with Spartichino to any of Rodwell’s other counsel or investigators. (Affidavit of Counsel.) The 1991 letter from Nagle to 93 Judge White was obviously not available before trial as it was written in 1991 and contained in Nagle’s file thereafter. (Affidavit of Counsel.) Finally, the recorded interview with David Nagle is new evidence because he had never agreed before to speak to any of Rodwell’s attorneys or investigators and therefore it would have been impossible. (K.R. Corr. Ex. 52 at 1021; T.B. Corr. Ex. 53 1029-32; J.R. Corr. Ex. 55 1044-48; Affidavit of Counsel.) Secondly, all of the new evidence is both material and supports the arguments laid out above. The relevance of the new evidence is exhaustively outlined above, so it is not necessary to repeat it here, but the bottom line is that the new evidence supports the assertion that Nagle was a longtime government agent with ties to multiple agencies, that his connection to law enforcement in general and specifically to Spartichino was consistently downplayed by the government, and that Nagle committed myriad perjury on the stand. Thus, the above-presented evidence meets the standard for new evidence and should be considered as such by this Court. IV. THIS COURT SHOULD GRANT RODWELL’S MOTION FOR A NEW TRIAL BECAUSE THE INTERESTS OF JUSTICE DEMAND THAT RODWELL BE GRANTED A NEW TRIAL TO REMEDY THE MYRIAD ETHICAL VIOLATIONS PERPETRATED BY THE PROSECUTOR IN THIS CASE 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) (emphasis added). In this case, the mountain of misconduct perpetrated by the Commonwealth and its agencies against Rodwell demand that he be granted a new trial. Firstly, as noted above, the Commonwealth allowed Nagle to perjure himself multiple times at trial without correcting his testimony, and additionally never turned over to the defense Nagle’s status as a DEA informant, imputed on the Commonwealth through the Somerville Police, nor did the Commonwealth divulge the true extent of Nagle’s relationship with Spartichino or the true date of their first meeting about Rodwell’s case. Additionally, Nagle believed there was some kind of firm deal for his testimony despite the fact that he testified that 94 Spartichino would only speak on his behalf, because Nagle states in a letter that some part of his deal is not being fulfilled and that he will have to go back on it if the government doesn’t hold up its end of the deal. (D.N. Ltr.’06 Ex. 88 at 1831.) Further, Rodwell was never given Nagle’s complete criminal records before trial, despite the Commonwealth agreeing to provide the records of all its witnesses. (Disc. Prov. Ex. 96. Ay 1874-77) Finally Rodwell, who has been seeking information on Nagle’s informant status for more than thirty years, only discovered concrete proof of Nagle’s informant status by finding transcripts of a 1983 federal case in 2012. The Commonwealth never turned over any evidence of Nagle’s agency, despite Somerville Police arresting him at DEA headquarters, Nagle being transported to testify in New York in 1982, and an A.U.S.A. presumably contacting the Middlesex D.A.’s office to speak to them about the Rodwell case and inform them that Nagle was testifying in Mourad in his capacity as a DEA informant. “A defendant is entitled to discover the names of the Commonwealth's witnesses and, under the direction of the court, is entitled to access to their criminal records.” Comm. v. Adams, 374 Mass. 722, 732 (1978). As noted above, the Commonwealth never informed defense of Nagle’s 1980 arrest at DEA headquarters, so defense never learned of the benefits Nagle received because of his DEA connections and thus was never able to adequately cross-examine Nagle on his bias for the Commonwealth. (Affidavit of Counsel.) There are also disturbing parallels between how Nagle acquired the alleged statements from Rodwell and the Mourad defendants. In both cases, Nagle and the defendant(s) were in the same facility for a short amount of time and allegedly still became close friends (a little over a month in Rodwell, barely a week in Mourad). Tr. 4/120. (Mour. Tr. Ex. 97 at 2206-07.) In both cases, the defendant(s) allegedly asked Nagle to help in some illegal activity (perjury in Rodwell, 95 escape and future drug dealing in Mourad). Tr. 4/135. (Mour. Tr. Ex. 97 at 2128.) In both cases, Nagle learned case details from reading the paper. Tr. 4/124. (Mour. Tr. Ex. 97 at 2216-18.) In both cases, Nagle knew minute details of the case that would not likely come up in normal prison conversation (specific timelines and small events in Rodwell, specific drug storage locations in Mourad). Tr. 4/121-129. (Mour. Tr. Ex. 97 at 2125-26, 2130-31) Finally, during Rodwell’s trial, Nagle claimed the only promise, reward, or inducement he would receive was Spartichino writing a letter and speaking on his behalf. Tr. 4/143. In the Mourad case, Nagle testified that the only benefit he was receiving for his cooperation was a letter to the parole board, and in the Murphy case Nagle testified that his only reward was a letter to the parole board. (Mour. Tr. Ex. 97 at 2218, 2272; Murph. Tr. Ex. 81 at 1455-56.) Defense Counsel in Mourad even addressed the stark parallels, stating: . . .we have [Nagle] here who is certainly jail smart, number one, who has done the exact same thing before, meaning obtained a jailhouse confession and testified, and there are certain high points of this testimony, as I have indicated, that at least by type of incident appear to parallel it. (Mour. Tr. Ex. 97 at 2170.) Nagle’s repeated performances are evidence of his Modus Operandi which bolsters his actions from informant status to agency quality. Furthermore, when Charles Ryan came forward about who had actually murdered Louis Rose, he was approached by unidentified Somerville Police, State Troopers, and a D.A. who, by strongly encouraging Ryan to take his Fifth Amendment right, caused Ryan to say he didn’t remember making the statement. (D.M. Aff. Ex. 89 1834-35; Den. 3rd Mot. N. Tr. Ex. 90 at 1838-40; c. 268 § 133 Intimidation of a Witness.) Importantly, however, Ryan did not deny making the statements. (D.M. Aff. Ex. 89 at 1834-35; Den. 3rd Mot. N. Tr. Ex. 90 at 1840.) The past thirty-one years have been laced with government misconduct in the face of federal and state Courts of various levels by calling into question the evidence about Nagle put 96 forth by Rodwell in his past attempts at a new trial. The prosecutor actually suppressed and exploited Rodwell’s inability to expose false testimony while various state and federal courts continued to rubber stamp the evidence, simply saying that it was cumulative. The First Circuit Court of Appeals intelligently questioned the very nature of this prosecution, and rendered it suspect, hinting somewhat at government misconduct that they simply could not put their finger on. In an attempted call for justice the Appeals Court stated that “No Court [had] exhaustively addressed” the claim of “the relationship between Nagle and the state prosecutor.” Rodwell v. Pepe, 324 F. 3d 66, 72 (2003.) An attempt by the single justice of the Supreme Judicial Court in 1983 to get Rodwell an evidentiary hearing was stifled by the trial judge’s reliance on a disingenuous affidavit designed to mislead the Court written by Spartichino, the very person who helped to weave the lie that fooled the Rodwell jury, and who falsely stated that he was going to simply notify the D.A.’s office of Nagle’s cooperation. What was omitted from this critical affidavit by Spartichino (and never corrected by the Middlesex D.A.’s Office when relying on the affidavit in support of their opposition) was the fact that only three months after Nagle’s testimony against Rodwell, Spartichino spontaneously approached the sidebar of Linscott, J. on February 26, 1982 to persuade him give a long time cooperating informant a deal for 7-12 years. (Mour. Tr. Ex. 97.) This was another quick ticket to freedom for Nagle before being put back on the DEA payroll to engage in yet more perjury to secure a forty-year sentence against three Lebanese defendants. V. RODWELL IS NOT PROCEDURALLY BARRED FROM RAISING THE ISSUES PRESENTED IN THIS MOTION When police or prosecutors conceal significant exculpatory or impeaching material in the 97 State’s possession, it is ordinarily incumbent on the State to set the record straight. Banks v Dretke, 540 U.S. 668, 675-76 (2004.) In Banks, prosecutors informed defense counsel that a discovery motion was not necessary, as they would turn over all discovery to which defendant, Banks, was entitled. Id. However, the state concealed exculpatory evidence regarding a witness who was an informant that had been paid by police for giving information in Banks’ prosecution. Id. Further, the prosecutor failed to correct perjury committed by the witness when he was directly questioned about that issue on cross. Id. When Banks learned of this evidence, he sought relief through a federal habeas petition. Id. at 683. The prosecution argued that Banks was barred from raising the issue because he had alleged the witness’ police connection in a previous state post-conviction proceeding but had failed to move for investigative assistance enabling him to adequately prove the connection before the proceeding. Id. at 697. The Court, however, disagreed, holding that “it was not incumbent on Banks to prove these representations false; rather, Banks was entitled to treat the prosecutor's submissions as truthful [and]…has shown cause for failing to present evidence in state Court capable of substantiating his Farr Brady claim.” Id. In the case at hand, there has been a history of the Commonwealth failing to disclose exculpatory information to the defense, and the defense having to fight tooth and nail for the barest scraps and clues to lead them to evidence which should have been turned over before trial more than 30 years ago. As noted above, the defense has tried time and again to interview Nagle, to access files regarding his status as a government agent, and to access exculpatory information only to be blocked at every turn. Only within the last year has the defense finally gained access to information which proves that Nagle committed perjury on the stand which the Commonwealth failed to correct, that the Trial Court materially misunderstood Nagle’s 98 informant status and the Commonwealth did not correct that misunderstanding, and that the Commonwealth failed to disclose evidence of Nagle’s informant status and true relationship with Spartichino. All of this evidence is newly discovered and all of this evidence was either tacitly or blatantly stated to not exist by the Commonwealth. Thus, the claims raised by Rodwell in this motion are not procedurally barred, as it was the actions of the Commonwealth in failing to fulfill its constitutional duty to the defendant that caused this evidence not to be presented in earlier post-conviction motions by the defendant. CONCLUSION 99 CONCLUSION As a result of all of the above, the interests of justice demand that James Rodwell be granted a new trial or at the very least, an evidentiary hearing. Allowing his conviction to stand in the face of such prosecutorial and police misconduct, on the word of a man who made a career out of selling any information he could get his hands on for a reward, would continue the wrongful incarceration of an innocent man. JAMES RODWELL BY HIS ATTORNEYS ATTORNEY J. WHITE 640-332 BENJAMIN F. LEATHERMAN 680-267 101 TREMONT STREET, SUITE 1010 BOSTON, 02108 ?x MLW. MULLIGAN 684-740 101 TREMONT STREET, SUITE 1010 BOSTON, MA 02108 Dated: December 14, 2012 100 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX , SS. SUPERIOR COURT DEPT. No. 81-1712-14 COMMONWEALTH v. JAMES RODWELL AFFIDAVIT OF COUNSEL IN SUPPORT OF MOTION FOR NEW TRIAL I, Veronica J. White, hereby depose and state as follows: I. II. I represent the defendant, James Rodwell, who was convicted of first degree murder on November 25, 1981; On November 2, 2012, William Chase, current Chief of Police for the Westwood Police Department, former Federal Special Agent, and David Nagle’s half-brother signed a notarized affidavit. Said affidavit stated that, in 1991, Chase had made comments (that were later published in a magazine article) to a reporter who was investigating Nagle’s role in the Rodwell case. Chase told the reporter that Nagle was a “habitual,” “pathological,” and “calculating” liar who would “tell you what you want to hear if he thinks it’ll do him any good.” (W.C. Aff. Ex. 106 at 2646.) Chase met with Nagle to discuss the statements he made to the reporter regarding Nagle’s participation in Rodwell’s case and Nagle informed Chase that he “was worried about being convicted of perjury for his testimony in the Rodwell case.” Id. Confronting Chase about his statements to the reporter, Nagle said, “You know if I get jammed up on that I’d get a life sentence.” Id.; III. On May 25, 2012, I interviewed inmate David Nagle at Bridgewater State Hospital in Bridgewater, Massachusetts regarding his testimony and role in the 1981 prosecution of James Rodwell; IV. Said interview was conducted in the presence of Nagle’s counsel, Attorney Benjamin Keehn of the Committee for Public Counsel Services, and was recorded on a digital recording device per the authorization of Nagle, Attorney Keehn, and the Superintendent of Bridgewater State Hospital; V. During said interview, Nagle informed me that he is suffering from end stage liver disease with endo-encephalopathy. (D.N. Int. Ex. 98 at 2310.)42 End stage liver disease is fatal 42  Please  see  attached  exhibit  list  for  a  complete  description  of  exhibits  and  the  short-­‐form  citations  used  to   cite  the  exhibits  throughout  this  motion.   101 without a liver transplant.43 Before death, end stage liver disease will cause encephalopathic comas from which the patients may or may not wake, requiring intubation and mechanical ventilation.44 Additionally, patients will likely suffer kidney and respiratory failure, infection, and gastrointestinal bleeding prior to death;45 VI. Due to Nagle’s condition, he was forced to reschedule our interview on numerous occasions and is forced to undergo various procedures, including dialysis, in order to briefly prolong his life. Nagle stated that he is currently suffering from the encephalopathic comas described above, during cause him to “pass out” and “lose faculty.” Id.; VII. Nagle stated that, regarding his declining health, he “ain’t got long” until he expires. Id. at 2416; VIII. During the interview on May 25, 2012, it was apparent to me that Nagle was able to fully understand my questions and participate in the interview by listening to my questions and answering them coherently; IX. Nagle is the material witness in this case. With no physical or forensic evidence to prosecute Rodwell, Nagle was one of only two key government witnesses to testify against Rodwell, the other being an unindicted, immunized co-conspirator; X. Nagle testified at Rodwell’s trial that while he and Rodwell were housed in Billerica House of Corrections (“Billerica”) awaiting trial, Rodwell confessed to murdering Louis Rose, Jr. As a result of Nagle’s corroborative testimony, Rodwell was convicted of first degree murder; XI. Nagle’s statements during the May 25, 2012 interview revealed numerous instances of perjury at Rodwell’s trial by exposing inconsistencies with, and contradictions to, his own testimony and to other witness testimonies and affidavits; XII. Said inconsistencies and contradictions include, but are not limited to: a) Nagle testified that when he entered Billerica he was housed in the hospital due to overcrowding. While in the hospital, Nagle met the government’s other key witness, Francis Holmes. Tr. 4/130. Nagle further testified that he knew Holmes “fairly well” and that he spoke with Holmes “many times.” Id. However during the interview, Nagle said that he did not have “any conversation whatsoever” with Holmes while at Billerica. (D.N. Int. Ex. 98 at 2353); b) Nagle testified at trial that the first time he spoke to Lt. Spartichino about the Rose murder was on July 9, 1981 at Billerica. Tr. 4/141-42. Nagle also testified that the last time he spoke to Rodwell about the murder was at the “end of June” and, as such, Nagle 43  Lynn  A.  Kelso,  Cirrhosis:  Caring  for  Patients  with  End-­‐stage  Liver  Disease,  33  Amer.  J.  Primary  Health  Care.   24-­‐30  (2008).     44  Id.   45  Id.     102 only contacted law enforcement after he had concluded gathering information from Rodwell. Tr. 4/153. Nagle testified that “before [he] ever talked to Rodwell about the murder case, or during the time that [he] was talking with [Rodwell] about the murder case” he was not “in touch with, or in contact with, or communication with any police officer associated with the Rodwell murder case.” Tr. 4/119. During the interview, however, Nagle was adamant that the first time he spoke to Spartichino was at a Suffolk County Courthouse. (D.N. Int. Ex. 98 at 2320-21.) Nagle first said that Spartichino “just showed up” at the “Suffolk County Court House.” Id. at 2320-21. Nagle’s attorney, Benjamin Keehn, specifically asked Nagle if he first met Spartichino in Billerica, but Nagle replied that no, they first met at the Suffolk County Court House. Id. at 2320-21; i) Nagle then said he began cooperating with police officers Rufo, Kilroy, and Pacino at the Brighton District lockup on May 18 or 19, 1981. Id. at 2367-70. Benjamin Keehn asked Nagle if he spoke with the police at Brighton prior to the Rodwell trial, and Nagle said yes. Keehn then asked “After you had talked to Spartichino, right?” Nagle replied, “yeah,” “yeah, I guess,” and “No, no. This is--May 18. How did these cops remember?” Id. at 2370-71. Later in the interview Nagle said that he made a brief statement to Spartichino at the Suffolk Superior Court lockup. Id. at 2389. And even later in the interview, without referencing any particular court, Nagle said “all of a sudden Spartichino showed up at the lockup.” Id. 2396. And finally, Benjamin Keehn asked Nagle “did you say [to William McDermott] that you’d heard somebody confess to a murder?” Nagle replied, “Yeah. Someone. And it turned out-Spartichino all of a sudden miraculously showed up at the lockup.” Id. at 2397; c) A warrant was issued for David Nagle’s arrest for an armed robbery on April 22, 1981 for two different charges of Armed Robbery and Larceny from a Motor Vehicle. (D.N. Dkt. Brght. Dist. Ex. 108, nos. 1709, 1829, 1839.) He was arraigned on the two armed robbery cases and the one Larceny case in the Brighton District Court on April 22, 1981. (D.N. Dkt. Brght. Dist. Ex. 108.) On April 22, 1981, David Nagle was sent to the Billerica House of Correction. Tr. 4/113-14. (D.N. Dkt. Brght. Dist. Ex. 108.) On May 1, 1981 Nagle was brought back to the Brighton District Court, entered a Not Guilty plea and was held on the same $50,000.00 cash bail. (D.N. Dkt. Brght. Dist. Ex. 108, nos. 2054.) All four cases were continued to May 18, 1981, where Nagle was brought in again to the Brighton District Court where he waived the probable cause hearing and all cases were bound over for indictment to the Suffolk Superior Court. (D.N. Dkt. Brght. Dist. Ex. 108.) During Rodwell’s trial, Nagle testified that he was in District Court on May 18 or 19, 1981. Tr. 4/149. Nagle’s docket sheet for his Suffolk County Superior case no. 035528-32 at that time indicates that David Nagle was subsequently arraigned on these charges on June 22, 1981. (D.N. Dkt. Suff.’82 Ex. 30.) The next time Nagle appeared in the Suffolk Superior Court on the Suffolk charges was February 26, 1982, where he pleaded guilty and, three months after testifying against Rodwell, received a 7-12 year sentence after Spartichino spoke with the judge on Nagle’s behalf in an unrecorded bench conference. (D.N. Dkt. Suff.’82 Ex. 30; D.N. Plea Suff.’82 Ex. 25.) Therefore, Nagle did not meet Spartichino for the first time on July 9, 1981 at Billerica, as he testified he did; rather, Nagle first met with Spartichino and discussed Rodwell’s case on either April 22, May 1 or 18, or June 22, 1981 at a Suffolk Lockup. After speaking with Spartichino 103 about Rodwell, Nagle continued to gather information from Rodwell about the murder until the end of June; d) Nagle testified that he had initially reached out to William McDermott of the Brookline Police about Rodwell. Tr. 4/142. Nagle stated in the Bridgewater interview that the substance of the conversation was Rodwell, the murder, and an alleged plot to have Nagle lie on the stand about Holmes. (D.N. Int. Ex. 98 at 2316-20, 94-97.) According to Nagle’s interview, McDermott told him “that guy Spartichino, he’s a straight shooter.” Id. at 2320. However, McDermott recently signed an affidavit stating that at no time did Nagle contact him about a murder in Somerville or about anyone confessing to a murder in Somerville, and at no time did he put Nagle in contact with Spartichino, especially not between April-July 1981. (W.M. Aff. Ex. 99 at 2423); e) I confronted Nagle with McDermott’s affidavit during the interview. Nagle then changed his story and stated that he did not name Rodwell and had only told McDermott about a “murder beef” and asked who was handling a “murder beef”, but did not explain how McDermott could have facilitated a meet with Spartichino based on such little information. (D.N. Int. Ex. 98 at 2391-97); f) McDermott’s affidavit is new evidence that Nagle did not reach out to law enforcement on his own accord. (W.M. Aff. Ex. 99 at 2423.) According to Nagle’s statements during the interview, Spartichino just “showed up” at a Suffolk County Courthouse. (D.N. Int. Ex. 98 at 2320-21.) Therefore, since Nagle never actually spoke to McDermott, then McDermott never contacted Spartichino; Spartichino just “showed up” at Suffolk County Courthouse without having been directed to Nagle by McDermott. Id. It is reasonable to infer that Spartichino, a Detective Lieutenant of the State Police attached to the Middlesex District Attorney, knew that Nagle would be in a Suffolk county lockup in either the Brighton District Court on April 22, 1981, May 1 or 18, 1981 or in the Suffolk Superior Court on June 22, 1981, and that he travelled to one of the courthouse lock ups on one or several of these dates to specifically employ Nagle as an informant in the Rodwell case. Based on my experience with visiting clients in courthouse lockups, it is my belief that a visit to such lockups would not produce a paper trail that would otherwise uncover a meeting that was intended to remain confidential and out of the purview of defense counsel. It is also reasonable to infer that Spartichino had prior knowledge that Nagle was a government informant and he sought Nagle out to procure inculpatory statements from Rodwell; g) Nagle testified at trial that he first learned about Rodwell and the Rose murder from another inmate, Richie Scala. Tr. 4/164-65. However, during the interview, Nagle stated that he did not know anything about Rodwell’s case until Rodwell was put in the cell across from his and Rodwell began talking about the murder. (D.N. Int. Ex. 98 at 2358); h) Nagle testified that the first time he spoke to fellow inmate Robert Trenholm was in Dedham HOC; that the two had spent 6 months at Dedham together before being housed in Billerica. Tr. 4/167. Nagle stated that once Holmes left Billerica, Trenholm became part of Nagle’s group of friends. Tr. 4/168. However, during the interview I asked Nagle 104 about Robert Trenholm. Nagle became noticeably agitated and yelled, “where did you -you know, that is the most. . .I have n--I might have said he’s got a face like Franken-like an old catcher’s mitt…I had nothing to do -- I don’t even -- I didn’t say five words to him in my whole life.” (D.N. Int. Ex. 98 at 2362) (emphasis added); i) Nagle testified at trial that he had read about Rodwell’s case in the newspapers. Tr. 4/124. However, during the interview, Nagle stated that he never read about Rodwell’s case in the newspapers. Id. at 2359; j) Nagle testified that he was cooperating with the police in his Suffolk case, but he made a “statement” only once, on May 18 or 19, 1981, to the police in which he implicated himself and others. Tr. 4/149. However, during the interview, Nagle stated that when he began cooperating with the police on his Suffolk case, he told them, “I’m shooting for a concurrent sentence out of Suffolk” to which the officers replied that they would get back to him. (D.N. Int. Ex. 98 at 2378); k) During the interview, Nagle stated that he would work with Drug Enforcement Administration (DEA) Agent Ed O’Brien; that O’Brien would provide Nagle with the names of drug dealers who had large quantities of drugs, and at the behest of O’Brien, Nagle would rob drug dealers and then give O’Brien his “take.” Id. at 2339, 2416. During O’Brien’s testimony in an unrelated drug case, he stated that he used Nagle as an informant and first met Nagle in New York City in November 1982 while Nagle was supposed to be housed in Greenfield House of Correction (“Greenfield”). (Murph. Tr. Ex. 81 at 1443-4.) O’Brien testified that Nagle “had furloughs coming to him.” Id.; l) In August 1989, DEA Agent Edward O’Brien was arrested at Logan Airport and charged with trafficking in cocaine. O’Brien was caught transporting around 62 pounds of cocaine from Florida to Boston. In early 1991, O’Brien pleaded guilty to conspiracy and possession with intent to distribute. He also admitted to embezzling around $140,000 from the Springfield DEA Office of which he was the supervisor. O’Brien was sentenced to six years in prison46; m) During the interview, Nagle stated that he was not on any furloughs while he was working for the DEA. (D.N. Int. Ex. 98 at 2341, 2418.) Nagle claimed that while he was at Greenfield, only 8 months into the 7-12 year sentence imposed at his February 1982 plea in Suffolk, Federal Marshals removed him from Greenfield and placed him into the Federal Bureau of Prisons at Metropolitan Correctional Center New York, in order to inform for the DEA on a Lebanese47 heroin ring (Mourad). Id. at 2341-42. Nagle claimed that he had never dealt with the DEA prior to November 1982, but that those Federal Marshals just appeared at Greenfield, transported him across state lines, and placed him into federal custody. Id. at 2340-41, 2346. Nagle later testified for the government in 46  The  Telegraph,  DEA  Agent  Sentenced  for  Dealing,  March  2,  1991.   47  Nagle  refers  to  the  heroin  dealers  as  “Iranians”  in  the  interview  transcript.  The  case  was  actually  about   Lebanese  heroin  dealers  and  when  Attorney  White  referred  to  them  as  such,  Nagle  did  not  correct  her.   Additionally,  Attorney  White  referred  to  one  of  the  defendants  in  the  Lebanese  heroin  case  by  name,  and   Nagle  acknowledged  that  that  was  the  case  he  was  referring  to.  (D.N.  Int.  Ex.  98 at  2341.)     105 Mourad and indicated during the interview that he was, in fact, a DEA informant. (D.N. Int. Ex. 98 at 2342); n) In 2006, Nagle wrote a letter to the Middlesex D.A.’s Office stating, in part, “[m]y deal to testify in a murder case and a Federal Court on some international issues.” (D.N. Ltr.’06 Ex. 88 at 1831.) He then stated that “I hope you can help me because if DOC doesn’t live up to the bargain, I’ll have to go back on my deal.” Id. During the interview, Nagle acknowledged that the only murder case he ever testified in was Rodwell’s and that he was referring to a deal in Rodwell’s case. (D.N. Int. Ex. 98 at 2407.) I asked Nagle what he meant when he said he had a “deal to testify in a murder case.” Initially, Nagle stated that his deal was to be put in a “certain institution.” Id. at 2408. Nagle then stated that his “deal” was that Spartichino would speak on his behalf. Id. at 2409. Earlier in the interview, Nagle said that Spartichino had spoken on his behalf in 1982 and that he was transferred to Greenfield in 1981. Id. at 2380-90. Nagle also testified to those benefits at Rodwell’s trial. Tr. 4/143, 163-64. However, Nagle’s transfer was allegedly authorized in May 1981. Tr. 4/162-63. (PrTr. Mot. Hr’g Ex. 2 at 27; Disc. Prov. Ex. 96 at 1876.) Furthermore, at a June 12, 1981 bail hearing, Nagle’s lawyer stated that “on the Suffolk cases they intended to transfer [Nagle] to the western part of the state for safety purposes.” (D.N. Bail Midd.’81 Ex. 29 at 768-69.) Nagle did not explain in the interview why he wrote the 2006 letter claiming that DOC was going back on their deal if the deal had been satisfied in 1981 and 1982 when Spartichino spoke on his behalf and facilitated his transfer (the only benefits which Nagle claimed to receive when he testified against Rodwell) but definitely demonstrated agitation and hostility towards me for inquiring into this. (D.N. Int. Ex. 98 at 2365, 2407-09); o) Nagle testified that Spartichino did not “take [Nagle] out [to Greenfield] personally”, but had arranged for Nagle’s transportation and that his transfer had already been approved in May 1981. Tr. 4/161-64. During the interview, Nagle admitted that Spartichino personally drove him from Billerica to Greenfield in July 1981. (D.N. Int. Ex. 98 at 2399); XIII. Due to the numerous inconsistencies between Nagle’s recent statements in 2012 and his prior testimony, there is a substantial indication that Nagle perjured himself at Rodwell’s trial. Further, the affidavit of William Chase shows that Nagle essentially admitted to Chase that he had committed perjury at the Rodwell trial. (W.C. Aff. Ex. 106); XIV. I believe that new evidence revealing Nagle’s perjury as articulated above also suggests that the Middlesex District Attorney’s Office knew or should have known that David Nagle committed perjury in the trial against James Rodwell and further that this evidence suggests that this office may have committed prosecutorial misconduct in its failure to correct this perjury; XV. I have additionally submitted an affidavit under seal. See Affidavit of Counsel Under Seal; XVI. The “written materials” from Nagle’s 1982 Suffolk guilty plea have never been provided to Rodwell or his past or current counsels; 106 XVII. XVIII. I have never been in the Suffolk archives to view Nagle’s Suffolk case file for Docket Nos. 035, 528-32. I was granted access to a small file regarding said docket numbers that had been retrieved from the archives, to be viewed in the Suffolk Clerk’s Office; Upon review of Nagle’s 1982 Suffolk guilty plea case file available at the Suffolk Clerk’s Office, I personally confirm that the following was absent from the file: a) the “written materials” referenced by Nagle’s counsel; b) any reference, notes, or documents related to “previous discussions” between the Judge and Nagle’s counsel; c) any reference, notes, or documents related to a “deal” for Nagle; d) any reference, notes, or documents related to Det. Lt. Spartichino’s presence at the plea hearing; e) any reference, notes, or documents related to the discussions at the off-the-record sidebar between the Judge, Spartichino, and the unidentified man during Nagle’s guilty plea; f) any reference, notes, or documents related to the identity of the man who approached the Judge with Spartichino during Nagle’s guilty plea; XIX. XX. Upon review of Nagle’s 1982 case file available at the Suffolk Clerk’s Office, I confirm that the clerk’s minutes state that Nagle was sentenced to “MCI-Walpole to be served at Franklin County HOC at Greenfield by agreement,” that a writ of habeas was issued to Billerica for Nagle to appear in Court on July 13, 1981 per order of the D.A.’s Office, and that Nagle did not appear in Court on July 13, 1981 and the Court ordered Nagle remanded to Greenfield on July 14, 1981; Upon review of Nagle’s 1985 Suffolk case file for Docket Nos. 054341-47, 63-67, I discovered a sealed envelope; XXI. I was not able to secure the Board of Probation record that was actually provided to Rodwell’s defense counsel in 1981, however the docket number for the Middlesex case for which Nagle was arrested at DEA headquarters was absent from the Commonwealth’s Notice of Discovery. (Disc. Prov. Ex. 96); XXII. In Rodwell’s fourth motion for new trial his attorney presented all four crime scene photos showing that, contrary to Holmes’ testimony, it was impossible for him to see the position of Rose’s body (it was below the headrest). Judge Margaret Marshall denied Rodwell’s motion stating that Nagle had been amply impeached at trial and the questions raised were neither new nor substantial; 107 XXIII. The following is a summary of how this firm discovered the Mourad Transcripts: a) Amongst three full boxes of files turned over by Rodwell’s former Attorney, Kevin Reddington, we were able to locate reporter Joseph Bargmann’s 1997 affidavit. In this affidavit, Bargmann stated “DEA Agent Kevin48 (sic) O’Brien stated that Nagle helped convict the leaders of a Lebanese heroin ring by testifying to an alleged jailhouse confession.” (J.B. Aff. Ex. 60 at 1068.) After numerous attempts to contact Bargmann and O’Brien, I advised my investigator, Kevin Flynn, of the Bargmann affidavit; b) Mr. Flynn then searched Google using a variety of combinations involving the phrase “Lebanese heroin New York” which eventually led to the Mourad appeal. The appeal appeared promising and Mr. Flynn provided me with the appellate decision; c) My law clerk then attempted to contact the attorneys who had represented the defendants on appeal and was able to leave a voicemail for one individual she believed was one of the attorneys. Roughly two weeks later, I received a phone call from the attorney who confirmed that Nagle had testified against his client as a surprise witness in U.S. v. Mourad, et al. The attorney’s name was Attorney Carl M. Bornstein whose office was located at 65 Broadway, Suite 1005, New York, NY 10006; d) At the same time, Mr. Flynn checked PACER and found the original case information, called the U.S. District Court in New York and sent a written request for the Mourad file along with a check for $53.00. The Court returned Mr. Flynn’s check and told him the file had been transferred to the National Archives in Missouri; e) Mr. Flynn contacted the National Archives in New York and they had the Mourad file forwarded to them in New York. At that time the New York office was able to copy the portions of the transcript involving Nagle’s testimony and send them to our Boston office. They refused to forward the file to the National Archives in Waltham or the U.S. District Court in Boston; f) In order to obtain the entire relevant portions of the transcript, Mr. Flynn flew to New York and made copies of all pages that mentioned Nagle; g) Our office has been unable to acquire the entire file, including trial exhibits. A letter from the National Archives informed us that “…there would have been other volumes of the transcript. Unfortunately they were not in the case file.” (Arch. Ltr. Ex. 47 at 945.) The Mourad transcripts were not available to prior counsel because the Mourad trial took place in 1983. The transcripts were eventually found through an internet search by a defense investigator, which would have obviously been impossible in 1983; XXIV. Based upon my personal knowledge, my investigation in this case, and my firm’s review of voluminous documents including, but not limited to, all files recovered from prior counsel, all files regarding Rodwell’s case held in Middlesex, and Nagle’s case files Suffolk County, I 48  DEA  Agent  Ed  O’Brien’s  full  name  is  Edward  Kevin  O’Brien.   108 believe that neither Rodwell nor his past or current counsels had ever been informed by any officer of the government of the following: a) The existence of the Mourad transcripts; b) Nagle testified at the Mourad trial as a jailhouse informant; c) An A.U.S.A. had contacted the Middlesex District Attorney’s Office regarding Nagle’s role in the Rodwell case; d) Nagle was a paid DEA informant from May 1979-February 1981 and had an open informant file until the Spring of 1981; e) Nagle was arrested for armed robbery and kidnapping on May 9, 1980 by Somerville Police at DEA Headquarters; f) Nagle was released on personal recognizance on May 9, 1980 after the Somerville Police informed the Bail Commissioner that Nagle was a DEA informant; g) Nagle had a DEA Informant number of SCC 79-0030; h) Nagle was deactivated as an informant during 1983 but was an informant at some point in each of the following years: 1979, 1980, 1981, 1982, 1983, 1984; i) Nagle secretly met with Spartichino at a Suffolk County lockup in either the Brighton District Court lockup on April 22, May 1 or 18, 1981 or the Suffolk Superior Court lockup on June 22, 1981; j) On June 12, 1981, Nagle was being held in Middlesex on Suffolk bail for protection purposes in that he had given a great deal of information to the Suffolk D.A.’s office and police in Middlesex County49; k) Nagle’s complete criminal record50; l) Nagle did not contact Spartichino by reaching out to William McDermott; m) Nagle had actually spoken with Spartichino before or during the time he was gathering the alleged statements from Rodwell; n) Spartichino personally drove Nagle from Billerica to Greenfield on July 14, 1981; 49  According  to  Attorney  Kevin  Reddington  in  Rodwell’s  Fourth  Motion  for  New  Trial,  Nagle’s  1981  Middlesex   Bail  Hearing  was  not  provided  to  defense  counsel.  (4th  Mot.  N.  Tr.  Ex.  13  at  281.)   50  According  to  Attorney  Kevin  Reddington  in  Rodwell’s  Fourth  Motion  for  New  Trial,  the  entire  criminal   record  of  both  Holmes  and  Nagle  were  not  provided  to  defense  counsel.  (4th  Mot.  N.  Tr.  Ex.  13  at  281.)   Attorney  Veronica  White  is  not  in  possession  of  the  Criminal  Record,  CORI,  or  Board  of  Probation  records   provided  to  defense  counsel  prior  to  the  1981  trial.     109 o) Spartichino approached the judge at Nagle’s 1982 Suffolk guilty plea and spoke to the judge on Nagle’s behalf at an unrecorded, off-the-record sidebar; p) Spartichino did not speak to ADA Nelson or advise any of Nelson’s supervisors of his intentions before meeting with the judge at the unrecorded sidebar on Nagle’s 1982 Suffolk guilty plea; q) Spartichino omitted from his affidavit in support of the Commonwealth’s opposition to Rodwell’s first motion for new trial (alleging ineffective assistance of counsel) that he had spoken to the judge on Nagle’s behalf at the unrecorded sidebar and that he personally drove Nagle from Billerica to Greenfield on July 14, 1981; r) Spartichino had intended to speak to the judge on Nagle’s behalf, and not just the D.A.’s as Nagle had testified; s) On February 26, 1982, the same day as his unrecorded sidebar with the judge at Nagle’s Suffolk guilty plea, Spartichino complied with the writ of habeas corpus to present Nagle at his Middlesex bench trial for armed robbery; t) In one Suffolk case and two Middlesex cases disposed of in early 1982, Nagle was convicted of 6 counts of armed robbery and one count of kidnapping, and was only sentenced to 7-12 years total, of which he served less than 3 years; u) Nagle began working for DEA Agent Ed O’Brien in 1982 in New York City; v) In 1983, Nagle worked undercover as a DEA informant with O’Brien; w) Nagle and O’Brien had an understanding regarding Nagle’s continued cooperation as an informant in between assignments; x) Nagle would rob drug dealers at the behest of Agent Ed O’Brien and gave O’Brien his “take” from the robberies; y) In 1984, Nagle testified as a DEA informant in Massachusetts Federal Court against drug dealers he had set up in 1983 while undercover with O’Brien; z) O’Brien used Nagle as an informant three times prior to August 1983; aa) O’Brien wrote a letter to the parole board stating that Nagle was a DEA informant. According to Joseph Bargmann, the letter said that Nagle was an informant for O’Brien from 1981 to 1983; bb) Nagle’s DEA handlers had been Al Duffy and Al Reilly prior to summer 1980 when Duffy and Reilly were transferred to Springfield. Once in Springfield, Duffy and Reilly reported to O’Brien who was the head of the Springfield office; 110 cc) Nagle wrote a letter to Judge White in 1991; XXV. Judge Zobel denied Rodwell’s sixth motion for new trial, stating, in part, “nothing prevents [Rodwell], through counsel, from obtaining Nagle’s waiver of the [attorney-client] privilege. Counsel’s affidavit supporting the instant motion contains nothing to suggest that Nagle has refused such a waiver (or even that counsel has asked for it).” (Den. 6th Mot. N. Tr. Ex. 21.) Accordingly, the following is a summary of Rodwell’s prior attempts to contact Nagle and the eventual procurement of Nagle’s waiver of attorney-client privilege upon death: a) Between 2004-09, Attorney Kevin Reddington, on behalf of Rodwell, sent letters to Nagle through counsel asking Nagle to waive his attorney-client privilege or to permit CPCS to disclose any promises, rewards, or inducements he received for testifying, and asking if Nagle would agree to meet with Reddington. Additionally, Attorney Reddington contacted Nagle’s lawyers who informed him that Nagle’s CPCS file contained information of interest to Rodwell, but under the ethics rules they could not divulge the file’s contents. (K.R. Corr. Ex. 52 at 1018; K.R. Aff. Ex. 45 at 939); b) Between 2008 and 2010, Nagle and Rodwell exchanged numerous letters directly. On April 8, 2010, Rodwell wrote to Nagle informing him that he had retained a new attorney and asked Nagle to acknowledge the deal he received for testifying against Rodwell. Rodwell attached an affidavit to be signed, but Nagle never returned the affidavit. (J.R. Corr. Ex. 55 at 1047); c) During 2010, Rodwell’s attorney Timothy Bradl corresponded with Andrew Silverman of CPCS regarding Nagle. Bradl asked CPCS to pass on various affidavits to Nagle for his signature. It appears that none were signed or returned. (T.B. Corr. Ex. 53 at 1030-32); d) Beginning in June 2011, I sent numerous letters to CPCS and Nagle with the hopes of having Nagle sign affidavits, waive privileges, and meet with me for an interview; e) In March 2012, Attorney Benjamin Keehn of CPCS indicated that Nagle was entertaining the idea of meeting with me. After more than two months of postponements from Nagle, I met with Nagle on May 25, 2012 for a recorded interview. This interview was the very first time that David Nagle ever met with any member of James Rodwell’s defense team. At the recorded interview, Nagle made incriminating statements and signed a waiver of attorney-client privilege upon his death. (D.N. Waiver Ex. 64); XXVI. William McDermott had not informed any of Rodwell’s prior attorneys of Nagle’s statements to him regarding Nagle’s testimony at Rodwell’s trial. I believe a reasonable inference can be made that Detective McDermott has now come forward with the information in his affidavit because he is no longer working for law enforcement; XXVII. I do not believe that any reasonable efforts by prior defense attorneys would have secured the information that we now have concerning William Chase’s affidavit. Chief of Police William 111 Chase is David Nagle?s brother in law and he had no connection with the investigation in the Rodwell case; A?er going through each one of David Nagle?s dockets in the Middlesex District Court with a fine tooth comb, I discovered the letter from David Nagle to Judge White folded up in a ?le folder. The original letter remains inside of the Middlesex Superior Court Clerk?s Of?ce; XXIX. When James Rodwell was arrested, he immediately invoked his right to remain silent. At no point during his entire case did Rodwell knowingly, voluntarily, or intelligently speak with any agent of the government; Since his arrest in 1981, Rodwell has maintained his innocence; Given my review of all of the new evidence submitted in this Motion for New Trial, I believe that said evidence suggests that the Middlesex District Attorney?s Of?ce engaged in prosecutorial misconduct in the withholding of exculpatory evidence in the prosecution of Mr. Rodwell, in their intentional omissions of material information known to them during the course of the proceedings in Rodwell?s pre-trial hearing and trial, and through omissions of material and exculpatory information to the various Courts that have heard Rodwell?s pleas for justice. I believe that because the misconduct in this case rises to a level of constitutional dimension, this Court has no discretion but to order a New Trial in this case. In the alternative, I believe that, should an evidentiary hearing be granted, evidence of prosecutorial misconduct will come to light revealing the miscarriage of justice that has caused my client to be wrong?illy incarcerated for 3] years; This motion has been ?led in an expedited manner due to the declining health of David Nagle. Accordingly, Rodwell and his counsel reserve the right to amend this motion with any additional arguments or new evidence in the likely event that the need to amend SIGNED UNDER THE PAINS AND PENALTIES 0F PERJURY . DECEMBER IN THE YEAR 2012. 112