Case Document 71-2 Filed 02/20/08 Page 1 of 86 EXHIBIT 1 Case To%?filin8r1ft?f?i?l?iied 02/20/08 Page 2 0f 86 I this day summoned the within named to appear as within directed by delivering to Shannon in?hand," Wxgxat I last and usual place of abode,- to wit: No. 7 Street, in the District of said an attested copy of the siibpoena together with fees for attendance and travel Service and Travel Police Officer, Constable, Sheriff Cop. Pd. Witness 7 It being necessary I actually used a Motor Vehicle motor vehicle the distance of miles in the service of this process Police Officer, Constable, Deputy Sheriff Subscribed and sworn to before JILL M. a Notary Public - I I Commonwealth of Massachusetts My Commission Expires July 21. 2011 Case Document 71-2 Filed 02/20/08 Page 3 of 86 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ULYSSES RODRIGUEZ CHARLES, Plaintiff, v. CITY OF BOSTON, STANLEY BOGDAN, C.A. N0. JOHN MULLIGAN, WILLIAM KEOUGH, PAUL RUFO, KATHLEEN HANLEY JOHNSON, and JOHN DOE and JANE DOE, supervisors in the Boston Police Department, Defendants. SUBPOENA T0 TESTIFY AND PRODUCE DOCUMENTS TO: SHANNON GREETINGS: YOU ARE HEREBY COMMANDED, in accordance with the provisions of Rule 45 of the Federal Rules of Civil Procedure, to appear and testify at the taking of a deposition upon oral examination in the aboVe-captioned case, at the of?ces of Paragon Law Group LLP, 4th Floor, 184 High Street, Boston, MA 02110 on October 17 2006 beginning at 10:00 am. Your testimony shall be transcribed by a notary public or other person authorized by law to administer oaths. YOU ARE FURTHER REQUIRED to produce at the same place the documents and objects identi?ed on the attached Schedule A at or before 9:00 am. on October 6 2 06. FAILURE to appear according to the command of this subpoena may subject you to a penalty, damages, in a civil Suit and punishment for contempt of Court. Case Document 71-2 Filed 02/20/08 Page 4 of 86 DATED: September 25, 2006 Boston, Massachusetts Kevin J. O?Connor 555250) Mayeti Gametchu 647787) John Pagliaro 634483) PARAGON LAW GROUP, LLP 184 High Street Boston, MA 02110 Tel. (617) 399-7950 ATTORNEYS FOR PLAINTIFF ULYSSES RODRIGUEZ CHARLES Federal Rule of Civil Procedure 45, Parts (0) Protection of Persons Subject to Subpoenas. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (2) (A) A person commanded to produce and permit inspection and cepying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for depoSition, hearing or trial. (B) Subject to paragraph of this rule, a person commanded to produce and permit inepection and copying may, within 14 days after service of the subpoena or before the time speci?ed for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an of?cer of a party from signi?cant expense resulting ?om the inepection and copying commanded. (3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (1) fails to allow reasonable time for compliance; (ii) requires a person who is not a party or an of?cer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transects business in person, except that, subject to the provisions of clause of this rule, such a person may in order to attend trial he commanded to travel from any such place within the state in which the trial is held, or requires disclosure of privileged or other protected matter and no exception or waiver applies, or Case Document 71-2 Filed 02/20/08 Page 5 of 86 (iv) subjects a person to undue burden. (B) If a subpoena . requires disclosure of a trade secret or other con?dential research, develoPment, or commercial information, or (ii) requires disclosure of an unretained expert?s Opinion or information not describing speci?c events or occurrences in diSpute and resulting from the expert?s study made not at the request of any party, or requires a person who is not a party or an of?cer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in Whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon speci?ed conditions. Duties in Responding to Subpoena. (1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correSpond with the categories in the demand. . (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is suf?cient to enable the demanding party to contest the claim. Case Document 71-2 Filed 02/20/08 Page 6 of 86 SCHEDULE A. De?nitions The terms used in this Schedule have the meanings given below: ?Charles? means Ulysses Rodriguez Charles, the Plaintiff in this action. means the Boston Police Department and includes its agents, employees, bene?ciaries, attorneys, representatives and all other persons acting on its behalf. ?City? means the City of BostOn and includes its agents, employees, bene?ciaries, attorneys, representatives and all other persons acting on its behalf. ?District Attorney? means the Of?ce of the District Attorney for the Suffolk District and includes its agents, employees, bene?ciaries, attorneys, representatives and all other persons acting on its behalf. ?Crimes? refers to the crimes committed on December 8, 1980 in Brighton, Massachusetts, for which Charles was convicted. ?Investigation? means the investigation conducted by the BPD into the crimes of December 8, 1980 for which Charles was tried and convicted, and includes, without limitation, all work performed by Stanley Bogdan, John Mulligan, Charles Campo, Kathleen Hanley Johnson, Paul Rufo, William Keough, the BPD and the District Attorney, up to the time of Charles?s Conviction (de?ned below). ?Trial? means the trial that led to Charles? conviction for the crimes. ?Conviction? means the convictions of Charles entered on February 14, 1984. ?Concerning? means referring to, describing, evidencing, or constituting. ?Communication? means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). ?Documents? includes any writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations ?om which information can be obtained, translated, if by the resPondent through detection devices into reasonably usable form. Requests for Documents 1. 'All documents concerning communications between you and the BPD concerning the Crimes, Trial, or Conviction. 2. All documents concerning communications between you and the District Attorney concerning the Crimes, Trial, or Conviction. Case Document 71-2 Filed 02/20/08 Page 7 of 86 3. All documents concerning communications between you and the City concerning the Crimes, Trial, or Conviction. 4. All documents concerning communications between you and the Massachusetts Attorney General?s Of?ce concerning the Crimes, Trial, or Conviction. 5 . All documents concerning communications between you and the BPD concerning the pending law suits brought by Charles concerning his Conviction for the Crimes. 6. All documents concerning communications between you and the District Attorney concerning the pending law suits brought by Charles concerning his Conviction for the Crimes. 7. All documents concerning communications between you and the City concerning the pending law suits brought by Charles concerning his Conviction for the Crimes. 8. All documents concerning communications between you and the Massachusetts Attorney General?s O?ce concerning the pending law suits brought by Charles concerning his Conviction for the Crimes. 9. All documents concerning communications between you and Karen inn?um Valerie ?concerning the Crimes, Trial, Conviction or the pending law suits brought by Charles concerning his Conviction for the Crimes. 10. All documents concerning communications between you and any news medium concerning the Crimes, Trial, Conviction or the pending law suits brought by Charles concerning his Conviction for the Crimes. 003 Case Document 71-2 Filed 02/20/08 Page 8 of 86 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ULYSSES RODRIGUEZ CHARLES, Plaintiff, v. CITY OF BOSTON, STANLEY BOGDAN, CA. o. 04-10986-NG JOHN MULLIGAN, WILLIAM KEOUGH, PAUL RUFO, KATHLEEN HANLEY JOHNSON, and JOHN DOE and JANE DOE, supervisors in the Boston Police Department, Defendants- SUBPOENA TO TESTIFY AND PRODUCE DOCUMENTS TO: SHANNON v- GREETINGS: YOU ARE HEREBY COMMANDED, in accordance with the provisions of Rule 45 of the Federal Rules of Civil Procedure, to appear and testify at the taking of a deposition upon oral examination in the above?captioned case, at the of?ces of Paragon Law Group LLP, 4th Floor, 184 High Street, Boston, MA 02110 on May 14, 2007 beginning at 10:00 am. Your testimony shall be transcribed by a notary public or other person authorized by law to administer oaths. YOU ARE FURTHER REQUIRED to produce at the same place the documents and objects identi?ed on the attached Schedule A at or before 10:00 am. on M3114, M. FAILURE to appear according to the command of this subpoena may subject you to a penalty, damages, in a civil suit and punishment for contempt of Court. Case Document 71-2 Filed 02/20/08 Page 9 of 86 DATED: May 4, 2006 Boston, Massachusetts Kevin J. O?Connor 555250) Mayeti Gametchu 647787) PARAGON LAW GROUP, LLP 184 High Street BoSton, MA 02110 Tel. (517) 399-7950 ATTORNEYS FOR PLAINTIFF ULYSSES RODRIGUEZ CHARLES Federal Rule of Civil Procedure 45. Parts Protection of Persons Subject to Subpoenas. A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (2) (A) A person commanded to produce and permit inSpection and copying of designated books, papers, documents or tangible things, or insPection of premises need not appear in person at the place of production or insPection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time speci?ed for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inapection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. Ifobjection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an of?cer of a party from signi?cant expense resulting from the inepection and copying commanded. (3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it fails to allow reasonable time for compliance; (ii) requires a person who is not a party or an of?cer of a party to travel to a place more than 100 miles from the place where that perSOn resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause of this rule, such a person may in order to attend trial he commanded to travel from any such place within the state in which the trial is held, or requires disclosure of privileged or other protected matter and no exception 01' waiver applies, or (iv) subjects a person to undue burden. Case Document 71-2 Filed 02/20/08 Page 10 of 86 (B) If a subpoena requires disclosure of a trade secret or other con?dential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing speci?c events or occurrences in dispute and reenlting from the expert's study made not at the request of any party, or requires a person who is not a party or an of?cer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in - whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the suprena is addressed will be reasonably compensated, the court may order appearance or production only upon Speci?ed conditions. Duties in Responding to Subpoena. A person reSponding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is suf?cient to enable the demanding party to contest the claim. Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 11 of 86 SCHEDULE A De?nitions The terms used in this Schedule have the meanings given below: ?Charles? means Ulysses Rodriguez Charles, the Plaintiff in this action. means the Boston Police Department and includes its agents, employees, bene?ciaries, attorneys, representatives and all other persons acting on its behalf. ?City? means the City of Boston and includes its agents, employees, bene?ciaries, attorneys, representatives and all other persons acting on its behalf. ?District Attorney? means the Of?ce of the District Attorney for the Suffolk District and includes its agents, employees, bene?ciaries, attorneys, representatives and all other persons acting on its behalf. ?Crimes? refers to the crimes committed on December 8, 1980 in Brighton, Massachusetts, for which Charles was convicted. ?Investigation? means the investigation conducted by the BPD into the crimes of December 8, 1980 for which Charles was tried and convicted, and includes, without limitation, all work perforrned by Stanley Bogdan, John Mulligan, Charles Campo, Kathleen Henley Johnson, Paul Rufo, William Keough, the BPD and the District Attorney, up to the time of Charles?s Conviction (de?ned below). ?Trial? means the trial that led to Charles? conviction for the crimes. ?Conviction? means the convictions of Charles entered on February 14, 1984. ?Concerning? means referring to, describing, evidencing, or constituting. ?Communication? means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). ?Documents? includes any writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form. Requests for Documents 1. All documents concerning communications between you and the BPD concerning the Crimes, Trial, or Conviction. 2. All documents concerning communications between you and the Disnict Attorney concerning the Crimes, Trial, or Conviction. Case Document 71-2 Filed 02/20/08 Page 12 of 86 3. All documents concerning communications between you and the City concerning the Crimes, Trial, or Conviction. 4. All documents concerning communications between you and the Massachusetts Attorney General?s Of?ce conceming the Crimes, Trial, or Conviction. 5. All documents concerning communications between you and the BPD concerning the pending law suits brought by Charles concerning his Conviction for the Crimes. 6. All documents concerning communications between you and the District Attorney concerning the pending law suits brought by Charles concerning his Conviction for the Crimes. 7. All documents concerning communications between you and the City concerning the pending law suits brought by Charles concerning his Conviction for the Crimes- 8. All documents concerning communications between you and the Massachusetts Attorney General?s Of?ce concerning the pending law suits brought by Charles concerning his Conviction for the Crimes- 9. All documents conceming communications between you and Karen *3 or Valerie?. concerning the Crimes, Trial, Conviction or the pending law suits brought by Charles concerning his Conviction for the Crimes- 10. All documents concerning communications between you and any news medium concerning the Crimes, Trial, Conviction or the pending law suits brought by Charles concerning his Conviction for the Crimes. 0033?002-10369 l.doc Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 13 of 86 PROOF OF SERVICE DATE PLACE SERVED: May 8th 2007 4 Shannon SERVED ON (PRINT NAME) MANNER OF SERVICE Shannon Chris Rage Personal/in~hand TITLE Process Server DECLARATION OF SERVER I declare under penalty of peljury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct Executed on . ?mw?mmor?mwm 11 Beacon St Boston MA ADDRESS OF SERVER Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 14 of 86 EXHIBIT 2 nvn? au- tnvu. - "Ill PINUAU \uVu In Vans. Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page25- 5-48 He juSt to?i me not to say anything; Yeah; 335? ?And that he would see me back at the office. That's all. Uh huh. ~And in fact you didn't say anything to-- anyone. Is that correct?- Excuse me?? As a matter of fact, yo? didn't say anything to anyone? -- I I did not say anything to anybody. No. .Okay. . how long have you been wearing those'glasses? ?I've worn glasses since I was in First Grade. And you wear them for all purposes? YES, I do. For reading._driving? working. Going to the movies? Yes . An? viola it be fair to.say that you were wearing .the the evening of December 8th? Yes, I was. Okay. Here you wearing the glasses all during the levening 3f December 8? UC6336 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 10 11 .12Io. Page 16 of 86 5-49 At what point in time.did you remove or were your glaSSes removed? I really don't remember when. Was it when you were in the hallway? I really I had them on when I was in the-hallway and when I left the apartment- I really.do not remember when. Did you lose possession of your_glasses when you were on the couch? I I don't remember when I lost them.? were_you wearing your glasses when your head was covered by the hlanket? I don't remember. When you were taken from the living rOQm to the .bedroom, was your head still being covered by the blanket or Coat? He just kept telling us to look straight ahead. No, it wasn't covered exactly. It wasn?t covered exactly? . Well,-he told-me to lift up the collar to my coat and keep -looking straight ahead.' What happened to the blanket that was over your head? I don't know. Did.you see that blanket again later that evening? UC 6337 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 17 of 86 EXHIBIT 3 Case 1:04-cv-10986-NG .R- Ms. Karen identified thedefendant.E Neither SUFFOLK, CCMONWEALTH MA . Document 71-2 Filed 02/20/08 Page 18 of 86 SSACHUSETTS BRIGHTON NOS. 6580, 2818,2819 AND 2820' CSMMONWEALTH 5 V- . .-) EVIDENCE CHARLES RODRIGUEZ) I - . nor Ms. Shannon' haVE'idi Resp or .Now_COmes the Cammonwealth and states i? answer 3 defendant's Motion for I?entification evidence that- eviewed a photngraphic disPlay and Ms.?Valerie antified the defendant. ectfully submitted, Eh mmonwealth m?hgmw lind Henson Milfer, stant District AttOIney on Municipal Court Court HOuse, Rm; 273 on, Mass. 02108 -6l7/725?8727 1 Case Document 71-2 Filed 02/20/08 Page SUFFOLK, SS. COMMONWEALTH ARLES RODRIGUE Now comes . Karen entified the cture. Neither ;.(301 AND 2820 5-1 V. V. TION EVIDENCE defendant's Mption for Identification evidence that efendant. All three victims viewed the me-photographic display which contained the defendant's Ms. Valerie ., have identified the defendant. Boston,MA 02108 Tel. No. EMONWEALTH OF MASSACHUSETTS SUPPLEMENT ANSWER -TO MOTION FOR he COmmOnwealth and states in ans?ef" - viewed a photographic display and nor Ms- Shannon Respectfully submitted,' SibWQ/te Sealind Henson Miller, -Assistant District Attorney Boston Municipal Court Old Court House}?Rm. 273 617/725?8727 BRIGHTON MUNICIPAL COURT N05. 6580, 2818,2819 .v Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 20 of 86 EXHIBIT 4 Case 1:04-cv-10986-NG. Document 71-2 Filed 02/20/08 Page 21 Of 86 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT COMMONWE A ALTH v. INDICTMENT NOS. 1: - 03549245 RODRIGUEZ U. CHARLES 036181?84 Defendant UJ AFFIDAVIT 0F VICTIM Karen-o hereby depose and say as follows: I was raped twice on December 8, 1980, by Rodriguez Charles, who forced me, at the point Of a screwdriver, fro building?s hallwa into the and Valenei apartment I Shared with Shannon When the defendant raped me vaginally, I was-wearing a long woolen coat which remained between me and. Shannon?s bed throughout the rape. When he raped me anally, I was not on Shannon?s bed- I never engaged in consensual sexual relations on Shannon?s bed- Shannon and I were roommates for three months before the rape. We had been friends for at least one and a half or two years before that. Shannon dated several men, for Short periods of time, during the months before the rape. Shannon and I sometimes went to bars together, and I saw Shannon meet men who She would then bring home with her. On some occasions when we were drum; This, andthe fact that twenty years have passed, make 'it impossible for me to remember with Speci?city deseriptions Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 22 of 86 10f 11. 12. perjury. of men that. Shannon dated, or how they appeared when I would see them with her in our apartment. . I saw men leave Shannon?sroom and the apartment at 3:00 or 4:00 A.M. I saw a man wearing Shannon?s bathrobe in our apartment on one Occasion. I do not remember ever wearing Shannon?s robe, but I cannot exclude the possibility that I may have, if, for example, I had forgotten to take my own robe to the bathroom when I was showering. I do not remember hearng any noises coming from Shannon?s room when she . had a man staying with her. I think that Shannon dated an African-American man who worked as a bouncer at the Metro club. Signed this day of November, 2000, under the pains and penalties of and subscribed before- I Is I a .- thary Public" . . My Commission expires: car-.3} . 1'0? 740 0100! PIHOAD CO1. Nul. Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 5-26 They-were off in another.room by themselves? _So you viewed the lineup separately? Yes, Could you describe the individuals that were standing in that lineup if you will?_ ?They were all black, and ages -?'between middle 205 ta early 305. While inside the linen? room; if you will, what directions were you given with regard to viewing the lineup? They were told to turn to the right, to face front, and to turn to the left. were you told to View each individual first before trying to make an identification? Yes. would it be fair to say-that each'individual in the. lineuP stepped forward} turned to the left, turned the right}'and then stepped back? Yes.- And at the end of that sequence, after all_the 'individuals had stepped forward and had stepped back, were you asked to make an identification? Yes..? At that time, what did you say?? I said that it had been too long. 1106314 - font 710 .PINOAD NJ. Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page '24 5?25 Now, after you viewed that lineup, where did you goseparate room. Now, did you View the lineup first; second or third? First." I Could you-deseribe your emotional-etate at that time? Scared." I After leaving the ii?eup'and you were brought to the other room, at Some point did someone enter _the roam that.you were in? I Yee. -Who was that? You. A ?i coudd you tell us what happened exactly upou my entering the rodm? I said that think-it was'No. 4, but it had been too leng and I was scared to say anything.? Had I said anything to you?upon my entering the r?room? No; (Beaeh Conference as follows.?. MR. CAMPO: This is the photograph. of the lineup. 'I'm going to be offeriag it at this time. I just wanted to make the Court aware of itr MR. GILDEN: That is a photograph of uc 6315 . [all '00 FIHCAD Old. Man Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 4?123 IYes.' Now, was the light still on.at that point?_ Yes. What happened when he came back into the bedroom? He grabbed me by my ankles. And what did he do? -Rnd he pulled me_down towards the door of Shannon's roomm How was your body Situated on the bed at that time?f I was like leaning over the hedgest. ?ould it be fair to say that you were bent over the rear of the bed? Yes. And what did Mr; Chatlee do at that point? He raped me anally- And what did you do?? I screamed a little bat tried not to scream to loud because I was Seated. Did he anything to you? Yes, he,told me not to scream or he'd kill me. And how lohq did that take? It felt like forever: hOh, I don't knog five; seven, ten minutes. what did he d6 after that? He told me to get back up on_the bod. think he (KAI Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 26 of 86 EXHIBIT 5 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 27 of 86 6-12 How were ?ou dresSed.at that point? 2 A IIwasin a maroon bathrobe, floor?length bathrobe. 3 'Were You-wearing anything under the bathrobe?r 4 No, I wasn?t. I ?ow were you positioned on the bed at this time? 6 I'm still sitting up in bed. 7 Were your bends in front of you? 3 . A Yes{ they were. 9. -Q What did he. say? '10 A Well, he asked me -4 he said ?e at that-point, he said,' 11' know thie isn't going-to bother you. knoh you're 12 not a virgin." That's when he proceeded to bull doyn 13 his bante. First of all, he pulled up my bathrobe 14' around my waist. 15 Q. What did he do after he pulledyour bathrobe. up? 16' A Then he did rape me taginally- .17 Q. How long a period ot'time'did this take? 18 A It was a wetter ofminutesf two or three minutes. -19. Do yod know whether or not he ejaeulated? 2b A No; he did not. 21 _What did he do after thet? 22 A He got off the bed and zipped up his pants. Then he 23 prooeeded then he left the room and closed the door 24 -again. The lights were still out at that point. is' ?At sOme point did he return? UC 6036 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 28 of 86 6-24 (Mr. Campo publishes photograph to jury.) 2 THE COURT: We're going to take the morning -3 I recess. 4 A. (Recess) I 5 I . MR- CAMPO: .May I continue. Your Hohor? 6 - THE COURT: You hay. ?7 I show you this maroon bathrobe and ask ?3 3 I you if you can identify that for us? 9, A Yes, that's the bathrobe that I was wearing.. 10 Q. I-I ask.you.to look at this here and tell us if you 11 . recognize thatYes. This was the bottom sheet on the bed. - 13 0 MR. CAMPO: I move to offer these, Your'Hohorobjection. 15" - TEE couRT: Okay. I 16 I MR. CAMPO: Exhibit 18 and Exhibit 19', the '17 - I robe being 18, the sheet being 19.- 18 i I - (Robe was marked ExhibitNo.18emd 19 was received into evidences) - 2D i (Sheet wasm'narked Exhibit No. 19 I '21 1' and was reoeived into evidence.) z? with regard to the sheet that I just '23. I showed you; are you familiar with that sheet?' I 24 A Yes, am. I I 25 Are you familiar with the stain that appears oh that Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 29 of 86 EXHIBIT 6 Case Document 71-2 Filed 02/20/98 Page 20271 Goldenrod Lane - Germantown, Maryland 20876 13' I A I Telephone: (301) 428?4980 (800) 1 Administration Fax: (301) 428-4877 Laboratory Fax: (301) 428-7946 AMENDED REPORT OF LABORATORY EXAMINATION May 28, 1999 Amended on October 12, 1999 Ms. Julie Ann Boyden Attomey?at Law PO. Box 988 Easton, 02334 Re: Cellmark'Case No. F991025 I EXHIBITS: Polymerase chain reaction (PCR) testing was performed on the following item which was received for analysis on May 19, 1999: - - One purple-top tube of b100d labelled ?Rodriguez RESULTS: DNA isolated from the item listed above was ampli?ed using the PCR and typed for HLA DQAI, the LDL receptor (LDLR), glycophorin A (GYPA), hemoglobin gammaglobin (HBGG), D788, and group speci?c component (GC) using the AmpliType? PCR Ampli?cation and Typing Kit. The types detected for the purple-'tOp tube of blood labelled Charles Rodriguez and the types previously reported for the material cutting labelled stained sheet and the material cuttings labelled robe in the Report of Laboratory Examination dated May 7, 1999, are listed below: ALLELES DETECTED SAMPLE LDLR GYPA HBGG D788 GC Sheet (non-sperm fraction) 2, 4.1, 1.2 AB AB AB ABC Sheet (sperm fraction) 1.2, 4.1 AB 7 A AB Robe (non-sperm fraction) 2, 4.1 (1.1) AB AB AB AC Robe (sperm fraction) 1.1, 4.1 A AC Rodriguez Charles 7 . 1.1, 1.2 AB A A The results shown in parentheses are below the intensities of the control dots. These results may be due to the presence of DNA from more than one individual or to technical artifacts. The results listed above in bold print are darker than the other results observed at that locus. Accredited by the American Society of Crime Laboratory DirectorsAaboratory Accreditation Board Cettmark Diagnostics, Inc. is a subsidiary of Lilecodes Corporation Case Document 71-2 Filed 02/20/08 Page 31 of 86 Report for Cellmark Case No. F991025 October 12, 1999 Page Two CONCLUSIONS: The data indicate that DNA from more than one individual was obtained from the non-sperm fraction of the material cutting labelled stained sheet. Rodriguez Charles is excluded as a source of the DNA obtained from the non-sperm fraction of the material cutting labelled stained sheet. The data indicate that DNA from more than one individual may have been obtained from the non-sperm fraction of the material cutting labelled robe. Rodriguez Charles is excluded as a source of the DNA obtained from the non-sperm fraction of the material cutting labelled robe. Rodriguez Charles is excluded as the source of the DNA obtained from the sperm fraction of the material cutting labelled stained sheet and the sperm fraction of the material cutting labelled robe. EVIDENCE DISPOSITION: In the absence of speci?c. instructions, evidence will be returned to the submitting agency by Federal Express or other appropriate carrier. erd, Staff DNA Analyst Deputy La tory Director If expert witnesses are needed for depositions or court testimony, please notify us by telephone at 301?515-6155 at least four weeks in advance. Amended portions of the report are Shown in italics. Case Document 71-2 Filed 02/20/08 Page 32 of 86 20271 Goldenrod Lane - Germantown, Maryland 20876 I A o?s I Telephone: (301)428-4980 Administration Fax: (301) 428-4877 Laboratory Fax: (301) 428-7946 REPORT OF LABORATORY EXAMINATION April 17, 2001 Ms. Julie Ann Boyden Attomey at Law PO. Box 276 North Easton, MA 02356 Re: Cellmark Case No. F991025 EXHIBITS: Polymerase chain reaction (PCR) testing was performed on the following items which were received for analysis on April 4, 2001: Material cutting labelled Material cutting labelled Material cutting labelled RESULTS: DNA isolated from the items listed above was ampli?ed using the PCR and typed for HLA the LDL receptor glycophorin A (GYPA), hemoglobin gammaglobin (HBGG), D788, and group speci?c component (GC) using the AmpliType? PCR Ampli?cation and Typing Kit. The types detected for the samples listed above and the types previously reported for the tube ofblood labelled Rodriguez Charles in the Amended Report of Laboratory Examination dated October 12, 1999, are listed below: Acoredited by the American Society Laboiarmy Overturn/Laboratory Accreditation Board I Ceirmark Diagnosncs. Inc. is a Subsidiary of Liiecoo'es Carporatron "l Case Document 71-2 Filed 02/20/08 Page 33 of 86 Report for Cellmark Case No. 991025 April 17, 2001 Page Two ALLELES DETECTED SAMPLE DQAI LDLR GYPA HBGG ID788 GC Bottom Rear (non-sperm fraction) Bottom'Rear (spenn fraction) 1.1, 4.1 AB A AC Inside, Back 2, 4.1 . AB AB I (non-spemt fraction) I Inside, Back (sperm fraction) 1.1, 1.2, 2 AB AB AB (4-1) Control (non-sperm fraction) 2, 4.1 CAB AB AB Control (sperm fraction) 2,4.1,1.1? AB AB AB AB ABC Rodriguez Charles 1.1, 1:2 AB A A The results shown in parentheses are below the intensities of the control dots. These results may be due to the presence of DNA from more than one individual or totechnical artifacts. The results listed above in bold print are darker than the other results observed at that locus. ?This sample contains DNA from a least two sources; the 1.2 HLA type, if present, may not be detected by this testing. *In addition to the types listed above, results were obtained that were below the intensities ofthe control dots. These results may be due to the presence from more than one individual or to technical artifacts. CONCLUSIONS: The data indicate that DNA from more than one individual was obtained from the non-sperm fraction of the material cutting labelled bottom rear. Rodriguez Charles is excluded as a source of the DNA obtained from the non-sperm fraction of the material cutting labelled bottom rear. Rodriguez Charles is excluded as the source of the DNA obtained from the sperm fraction of the material cutting labelled bottom rear. Rodriguez Charles is excluded as the source of the DNA obtained from the non-sperm fraction of the material cutting labelled inside, back. Case Document 71-2 Filed 02/20/08 Page 34 of 86 Report for Cellmark Case No. F991025 April 17, 2001 Page Three The data indicate that DNA from more than one individual was obtained from the sperm fraction of the material cutting labelled inside, back. Rodriguez Charles is excluded as a source of the DNA obtained from the sperm fraction of the material cutting labelled inside back. The data indicate that DNA from more than one individual was obtained from the non-sperm fraction of the material cutting labelled control. Rodriguez Charles is excluded as a source of the DNA obtained from the non-sperm fraction of the material cutting labelled control. The data indicate that DNA from more than one individual was obtained from the sperm fraction of the material cutting labelled control. Rodriguez Charles is excluded as a source of the DNA obtained from the sperm fraction of the material cutting labelled control. EVIDENCE DISPOSITION: In the absence of speci?c instructions, evidence will be returned to the submitting agency by Federal Express or other appropriate carrier. - a? ?mo ki J. Hig ins Lisa L. Grossweiler DNA Analyst II DNA Analyst IV If expert witnesses are needed for depositions or court testimony, please notify us by telephone at 301-515-6155 at least four weeks in advance. cc: Mr. Stephen Hrones Hrones and Garrity Lewis Wharf- Bay 232 Boston, MA 02110?3927 Mr. Jack Zanini Suffolk County District Attorney?s Office 563839 One Bul?nch Place Boston, MA 02114 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 35 of 86 EXHIBIT 7 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 36 of 86 COMMONWEALTH OF has SACHUSETTS SUFFOLK, ss. SUPERIOR COURT ACTION NOS. 035492?45 035181?84 COMMONWEALTH vs . RODRIGUE CHARLES MEMORANDUM OF DECISION AND ORDER ON MOTION FOR NEW TRIAL The defendant, Rodriguez Charles, was convicted in 1984 of ?q entering a dwelling, while armed, with intent to commit felony; he.? three counts of unlawful confinement; four counts of aggravated rape; and robbery. The defendant now moves lor a rew trial newly discovered DNA evidence, unavailable at 'the'tiue' of his rial, which excludes him as the donor of any biological evidence the scene. For the reasons set forth herein, specifically, PH 0 I: :1 n: the newly discovered DNA evidence and the Commonwealth?s failure disclose a potentially exculpator the defendant?s motion is ALLOWED. Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 37 of 86 PROCEDURAL HI STORY Following his conviction on February 14, 1984, the defendant was sentended to four consecutive terms of eighteen to twenty years at the Massachusetts Correctional Institute at Walpole for the aggravated rapes. In addition, the defendant was sentenced to eighteen to twenty years for robbery, and eighteen to twenty years for entering a dwelling armed and making an assault with intent to commit a felony, both terms to run concurrently with his first sentence for aggravated rape. Finally, for each conviction of n. unlawful confinement, the defendant was sentenced.to a term of.nine to ten years to_ run concurrently with the first sentence aggravated rape. The idefendant' appealed his conviction. on the grounds of _improper denial_of his motion to suppress, improper admission of certain evidence, improper jury instructions, failure to conduCt voir dire or give a curative instruction regarding the fact that jurors had seen the defendant in shackles, prosecutorial misconduct, and ineffective assistance of counsel.1 The Supreme Judicial Court affirmed the defendant?s convictions in Commonwealth v, Charles, 397 Mass. 1 (1986). Of relevance to this motion, the' defendant argued on appeal that the trial judge erred in failing to 1The defendant was represented by different counsel on appeal. Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 38 of 86 give a requested jury instruction which highlighted the difficultv of an individual identifying members of a race different from his at 8 n. 10. The Supreme Judicial Court held that the I . own. judge?s instruction on identification was proper and it was within the trial judge?s discretion to deny the defendanths request. at 8. Subsequently, the defendant filed his first motion for a new trial alleging prosecutorial misconduct, loss or destruction of potentially exculpatory evidence, prejudicial error in the Commonwealth?s closing argument, and ineffective assistance of den?ed the motion on April counsel.2 LThis court (Connolly, J.) 17, 1996. The defendant argued that he ?as entitled to a new trial because the Commonwealth lost or destroyed potentially exculpatory hat contained sperm samples Fl? evidence which included 'aginal swabs found in the victims. The court disagreed, concluding that there was no evidence that the Commonwealth ever had the sperm its possession and, therefore, could not be charged with preserve the samples for testing. The defendant appealed the court's denial of his motion for a new trial to the Appeals Court. The Appeals Court has stayed that the outcome of the current motion for in appeal pendin Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 39 of 86 BACKGROUND The facts of the case are set out in detail in Commonwealth v. He_e, the court will recite only Charles, 397 Mass. 1, 3?5 (1986). those facts necessary to decide this motion. On December 8, 1980, three roommates, Karen, Shannon, and Valerie,3were raped in their apartment in Brighton by a single assailant described as a thin black man, five feet nine inches tall, with ?scruffy? black hair and a beard, wearing a tan trench coat. The assailant raped Karen and Shannon on Shannon?s bed. Shannon, who was wearing a maroon bathrobe at the time, was raped vaginally, and Karen was raped both vaginally and anally. The assailant raped Valerie orally. The sheet from Shannon?s bed and the robe worn by Shannon during the assault were tested for physical evidence, and stains were found on each. At trial, the Commonwealth?s expert, Stanley Bogdan (Bogdan), a senior criminalist qualified as an expert in the ield of serology, testified that microscopic tests performed on I'll these stains did not detect the presence of any sperm cells. An absorption?inhibition test performed by Bogdan indicated that the stains were from a Group 0 secretor. The jury heard evidence that the defendant was a Group secretor, Shannon was a Group 0 secretor, and Karen was a Group 0 non?secretor. In addition, Shannon testified that the stain found on her bathrobe and a stain These are the names by which the Supreme Judicial Court ed to the victims. See Commonwealth v. Charles, suora at 3. L11 4 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 40 of 86 on her bed sheet existed prior to the rape. Forensic serologist John Cope Abbott (Abbott) also testified that he performed forensic tests on the sheet and robe, and that these tests did not indicate the presence of spermatozoa on any of the araas of the sheet and robe he examined. Abbott testified that I. . stains on the robe and the sheet were not seminal fluid or not the censistent ?1th fluid Shannon and Valerie testified that the rapist did not eJaculate, while Karen testified that she did not know whether or ejaculated. Vaginal swabs had been taken from Shannon ?nd Karen at Beth Israel Deaconess Hospital on the day of the assault, but . ?he SWabs were apparently misplaced. The Commonwealth and defense counsel entered into a stipulation that the vagin?l swabs taken front Shannon anci Karen were examined microscopically and tests indicated that no sperm was found. The jury' also heard evidence that 'the day' following the dentified the defendant after viewing assaults, Shannon and Karen atmroximately one hundred and fifty photographs of black males 0 - between the ages of twenty and thirty. Valerie was not able to select any photograph as 133a assailant. At the probable cause hearing on June 1, 1981, Karen and Shannon testified that the i ant had a distinctive accent. The defendant is from Trinidad, Wes? Indies. On November 3, 1983, all three victims attended a Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 41 of 86 lineup at the Boston police headquarters-? Shannon and Valerie were unable to identify the assailant. Karen did not make an identification during the lineup, stating that it had been too long since the incident. However, immediately after the lineup, Karen told the prosecutor that she thought the assailant was No. 4 (the defendant). Finally, Karen. identified 'the tdefendant, who was seated among the spectators, at trial. learned Subsequent 113 the defendant?s trial, the defendant that Shannon and Karen?s medical records revealed that spermatozoa was detected on the vaginal swabs. In addition, the medical records revealed that at least two of the complainants had had consensual sexual intercourse anywhere from three days to two months before the incident. To this date, the vaginal swabs taken from Shannon and Karen have not been located by the Beth Israel Deaconess Hospital. first In 1998, after the court?s denial of the defendant?s motion for a new trial, the defendant arranged, with the cooperation of the Commonwealth, to have cuttings of evidence found at the crime scene analyzed for the presence of DNA by Cellmark alyzed the cuttings and found :1 Diagnostics(Cellmark). Cellmark a the presence of two sperm fractions, one found on the robe and one found on the sheet. The two Sperm fractions did not match each 4The defendant did not appear at his arraignment and was not arrested on a default warrant until 1983. 6 Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 42 of 86 other? and thus were ,donated by two different men. Cellmark compared the DNA of the sperm fractions to DNA obtained from the defendant and determined that they did not match. The defendant was thus excluded as the source of the sperm fractions. In addition, as a result of this court's order, the defendant was granted access to the Commonwealth?s files in this case. Notes taken by the district attorney revealed that valerie, who was orally raped, stated that she believed that the assailant was circumcised. The defendant is not circumcised. This potentially exculpatory.evidence had run: been previously disclosed to the defendant.? 2??2E??lg? R. Crim. P. 30(b] A motion for a new trial pursuant to Mass. may be granted if it appears that justice may not have been done. Commonwealth v. Pike, 431 Mass. 212, 218 (2000); v. Stewart, 383 Mass. 253, 257 (1981). The granting of a motion for a new trial is addressed to the sound discretion of the judge. 0 Commonwealth v. Moore, 408 Mass. 117, 125 v. Stewart, suora at 257. I . Newly Discovered DNA Evidence The defendant first contends that the sperm found on the robe and sheet and the DNA tests excluding him as the source of that Case 1:04-cv-10986-NG Doeument71-2 Filed 02/20/08' Page 43 of 86 sperm constitutes newly discovered evidence entitling him to a new trial. The Commonwealth argues that this court should not even consider the DNA evidence in its cktermination of whether the defendant is entitled to a new trial because such evidence is precluded at ?trial under the rape-shield statute, which makes inadmissible specific .instances of a 'victim?s sexual conduct, except ?evidence of the victim?s sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim? which may be admissible. G.L. c. 233, 5 218 (1998). The Commonwealth argues that the DNA evidence is inadmissible t'w?O under G.L. c. 2'33, 213 because it reveals the sperm of different men_and is thus evidence of the victim?s sexual conduct. However, the defendant is not offering the DNA evidence to show the victims? sexual behavior; rather, he seeks to show that someone else, not he, assaulted the victims. ?No positive of law other than normal considerations of relevancy stands in the way of the admission.ofrnisidentification evidence.? Cardoza, 29 Mass. App. Ct. 645, 649 (1990), rev. den., 409 Mass. 1103 (1991). ?When a defendant offers exculpatory evidence regarding misidentification, prejudice ceases to be a factor, and relevance should function as the admissibility standard." lg. (concluding that-the defendant?s proffer of a pubic hair found on the victim that was not front the defendant, to show that another person Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 44 of 86, was admissible). Compare Commonwealth v. Martin, 424 Mass. 301, 313 (1997) (concluding that it was within the judge?s discretion to exclude under G.L. c. 233, 218 evidence of semen stains not belonging to the defendant on the victim?s bedspread, where identity was not an issue because the defendant was the Victim?s re: and this '11 former lover}. Therefore, the defendant mayguoperly court may consider the DNA evidence as part of the motion for new trial. A defendant seeking a new trial on the basis of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction. Commonwealth v. Pike, suora at 218; Commonwealth v. Truono, 34 Mass. App. Ct. 668, 673, rev. den., 416 Mass; 1104 isccvered evidence is evidence that was unavailable 0. (1093) . Newly at the time of trial and could not have been discovered with reasonable diligence. Commonwealth v. LeFave, 430 Mass. 169, l76 (1999). In addition, the newly? discovered eevidence Inust be credible. Commonwealth v. gigs, snore at 218. The issue in this case is not whether the DNA evidence was available at the time of the defendant?s trial or whether the DNA evidence is credible. It is undisputed that DNA analysis was not available at the time of the defendant?s trial. Massachusetts did not accept as reliable the PCR?based method of DNA analysis until Case 1:04-cv-10986-NG Document 71-2 Filed 02/20/08 Page 45 of 86 1997. See Commonwealth v. Vao Sok, 425 Mass. 787, 7994202 {1997), Further, the Commonwealth does not challenge the credibility of the test results. Cellmark is a reputable facility which has been used by the Commonwealth in other cases. See Commonwealth v. Rosier, 425 Mass. 807, 809 (1997). Rather, the pivotal issue is the probative value of the new DNA evidence. To warrant a new trial, newly discovered evidence must be a. material and carry a measure of strength in support of the defendant?s position. Commonwealth v. Pike, suora at 218; Commonwealth v. 'Moore, supra at 126. Thus, newly discovered evidence that is cumulative of evidence admitted at carry less weight than new evidence that is different in kind. Commonwealth v. Moore, _s__L_1_p_ra at 126; Commonwealth v. Grace, 39; Mass. 303, 306 (1986). The judge must find that there is a that the jury would have reaChed a different conclusion had the evidence been admitted at trial. Commonwealth v. Lo, 428 Mass. 45, 53 Commonwealth v. Truono, supra at 673. verdict would have been it] he judge need not conclude that the different; rather, the issue is whether the new evidence would probably have been a real factor in the jury?s deliberations. Commonwealth v. Moore, supra at 126; Commonwealth v. Ramirez, 45 Mass. App. Ct. 925, 926 (1999). The Commonwealth argues that the DNA evidence at issue here 15 merely cumulative and corroborative of Bogdan?s' testimony hat IO Case Document 71-2 Filed 02/20/08 Page 46 of 86 microscopic testing revealed that the defendant was not the donor of the stains found on the robe and sheet. However, the newly discovered DNA evidence is different in kind from the microscopic evidence presented at trial for two reasons. First, PCR?based DNA evidence is highly reliable and is likely to be more persuasive to a jury than the microscopic evidence. See Commonwealth v. Vao Sok, supra at 799?803. More importantly, the DNA evidence not only corroborates the microscopic evidence that the defendant was not the source of the stains on_the robe and sheet but also rebuts the Commonwealth?s theory at trial that the assailant left no physical evidence at the crime scene. This theory, bolstered by Bogdan?s testimony that no sperm was detected on the robe and sheet, the victims? testimony OH '4 that the assailant did not ejaculate, and the parties? stipula that vaginal and anal swabs taken from the victims did not reveal rt IESEDCG Of Sperm, was critical in reconciling the victims? 'cation of the defendant as the assailant with the fact that tests excluded the tdefendant as the source of the biological stains at the scene. Thus, the newly discovered DNA evidence, which casts doubt \nxnl the Commonwealth's theory at trial, is not merely cumulative of the evidence at trial. Compare Commonwealth v. LeFave, supra at 181 (concluding that an expert?s proposed testimony, based on recent research, on the unreliability of child witnesses in sexual abuse cases was merely corroborative ll Case 1:04-cv-10986-NG Document 71-2- Filed 02/20/08 Page 47 of 86 expert testimony that was or could have been presented at the H1 0 time of trial, and therefore, was not remarkably different in kind); Commonwealth vi Lg, supra at 52?53 (denying a motion for a new trial where newly discovered evidence of an expert witness's bias was cumulative of other evidence of bias, and that witness was not the only expert who testified that the defendant was sane). The presence at the crime scene of sperm from two different men, neither of which was the defendant, is exculpatory and would probat?gl have been a steal factor the jury?s deliberations. Compare Commonwealth Fitzgerald, 402 Mass. 517,.521 (1988) (granting a,new_trial in a rape case based on a newly discoVered billing record that established that the defendant had undergone a vasectomy and thus could not have produced the sperm cells found at the despite the victim?s identification. of Tami as the rapist). In reaching this conclusion, this court notes that tn probative value of newly discovered evidence depends largely on the strength of the case against the defendant. Commonwealth v. Moore, supra at l26; Commonwealth v. Truono, suora at ?75. The case against the defendant was not particularly strong, with only one victim consistently able to identify him as the assailant, another able to identify him immediately after the crime but not at the time of trial, and the third never able to identify him. Our courts ave recognized- that studies tend to demonstrate that 12 Case 1:04-cv-10986-NG Document 71-,2 Filed 02/20/08 Page 48 of 86 I .