COMMONWEALTH OF MASSACHUSETTS Superior Court Department 5" or The Trial Court nweelth ammo Indictment Nos. 82-2430 through 82?2435 v. Kevin O'Loughlin. Defendant Commonwealth?s Response To Defendant?s Motion For A New Trial Introduction The Commonwealth hereby ?les this response to the defendant?s motion for it led with the Court on or about new trial. pursuant to Mass. R. Crim. P. 30th). that was ii e-investigation November 20. 2014. As set forth more fully below. based on a thorough ofthis case over the past two years and after a review by the Conviction integrity Committee of the Middlescit District Attomey?s Otiice (MDAO). the Commonwealth has uncovered newly discovered material and credible evidence that ?costs real doubt on the justice of the v. Grace, 397 Mass. 303. 305 (1986). Accordingly. since "it appears that justice may not have been done" in this case. Mass. R. Crim. P. 30(b), the Commonwealth assents to the allowance of the defendant?s motion for a new trial. in order for the Court to ful?ll its obligations under Rule 30(b). the Commonwealth recounts in some detail the oilfettse conduct and investigation in 1982, the Superior Court trial in 1983, and the Conuatmwealtli?s re-investigation of this casein 2013 and 2014. Background The OiTense Conduct At sometime shortly before 8:00 pm. on the night of April 19. 1982. eleven-year old Margaret O?BrienI was playing hide-and-seek with her two brothers outside of her home on the north side of Framingham. As O?Brien was playing. she was approached . in accordance With (3 265 $24c the . . . . I . . ommonweaith IS ustn a seudoa In] order not to rev the Identity ofthe mmor victim ofthis sex crime. 8 5 ea] hi0 'Mls . AWN-WW1. . -n is. by a male whom she did not know. The male was standing in front ofO?Brien a Short distance away. The man asked her what time it was (She did not know) This encounter lasted about one minute.2 About ten minutes later, the male came up behind O?Brien and asked her where Potter Road (a nearby street) was. O?Brien spoke again to the male. The male then grabbed O?Brien in a headlock from behind and told her not to scream or he would kill her. He placed his hands over her mouth and said know where Potter Road is. I only used it as an excuse so I could talk to you, and I hoped that you were a female.? The male dragged O?Brien across her yard, across neighboring yards, and into the nearby woods. As this was occurring, the male asked O?Brien if she was a girl (she said yes). Certain houses had lights on inside the houses. There were street lights on the street where O?Brien lived but the one in front of O?Brien?s home was out. The male took O?Brien down a bike path into the woods. At some point, they stopped, the male took out a jack knife, opened it in front of her, put it to her throat, and told her to take off her clothes or he would kill her. She complied. The male put one of her socks in her mouth and used the other sock to tie her hands behind her back. The man made her lie down on her back; he touched her breasts and vagina with his hands and he licked her vagina. The male then forced her to accompany him through yards, across the street on which she lived, and to another wooded area. O?Brien?s clothes remained at the ?rst location. At a certain point, they stopped. The male untied O?Brien, pulled down his pants, and had O?Brien ?rub his penis.? After O?Brien heard her family calling for her, the male asked her if her name was Jackie (she said no, and gave her ?rst name). The male told her to stop ?snif?ing? or he would kill her. The male pulled up his pants and forced O?Brien to go to another location in the woods. When they got to the next location, the male forced O?Brien to ?rub his penis? and he then put his penis inside her mouth. The male ejaculated in her mouth and she spit it out. At some point, the male ?forced his penis into [her] rear.? After this, the male tied her hands behind her back with her sock and he put the other sock in her mouth. The male told her to count to 100 or he would kill her. The male then walked away in the direction of Nadine Road (a nearby street). O?Brien ran through the woods, came out 2 According to the Farmer?s Almanac, sunset occurred at 7:30 pm. on April 19, I982 in Framingham. 2 Mimi-1"" ..- wasvw?mrw?" 3-.- . no. wvo'uu am In: -. onto the street where she lived, and came upon her mother and brother who had been looking for her. O?Brien was taken home, where she put on clothes. The Framingham police were called. Her parents drove her to the hospital, where she was examined by medical personnel. Framinaham PD Investigating At about 8:19 pm. on the night of April 19, in response to the call from O?Brien?s parents, Detective Al Grow of the ramingham Police Department (FPD) went to Framingham Union Hospital, where he met and interviewed O?Brien in the emergency room in the presence of her parents and Nurse Nancy Diamond. According to Grow?s report, O?Brien stated that the attacker first approached her at approximately 8:00 pm. Detective Grow provided a Rape Evidence Kit to the nurse and it was used during an examination of O?Brien by Dr. Hugh Hunt. According to Grow?s report, Dr. Hunt stated that his examination revealed that O?Brien had performed fellatio and that her rectum had been penetrated. After leaving the hospital, O?Brien assisted the police (and a K-9) in retracing her path through the wooded areas. They found the ?rst stop where O?Brien?s clothes remained. O?Brien?s clothes were taken as evidence. They also found the other two locations where the attacker took O?Brien. The police observed numerous footwear impressions in the area they opined that one set of impressions was made by a sneaker (likely worn by O?Brien) and that another set of impressions was made by a work boot having a Vibram brand sole. The police took various photographs of the locations, including the two sets of footwear impressions. They also took samples of the dirt and leaves in the locations. In response to questions from Detective Grow, O?Brien stated that she believed that she could identify her assailant from photographs. It was agreed that she would be driven by Detective Grow in his vehicle to the police station that night to look through photograph books. It was well after 10:00 pm. which this decision was made. Arrest ofO?Loughlin on April PD Officer Paul Blaker was involved in the retracing of the path through the woods and the photographing of various locations and evidence in the area. Shortly after 1 1:00 pm. on April 19, he was driving back to the station. As he was driving in the rr'l' h. . - .vd?r? - .3. hat-ct- Nobscott Square section of Framingham (approximately one mile from the location where the crimes had occurred), Of?cer Blaker observed a white male ?tting the description given by O?Brien walking on Water Street near Edgel] Road. This male Was Kevin O?Loughlin (O?Loughlin), who was then 19 years old. He was carrying a can of Mountain Dew soda that he had just purchased at a nearby convenience store. Officer Blaker stopped O?Loughlin, who provided a learner?s permit as proof of his identity. Of?cer Blaker told O?Loughlin that he ?t the description of somebody who had been involved in an incident earlier that night. He frisked O?Loughlin and recovered from his pants pocket a marijuana cigarette and a jack knife the knife was small; it had a brown plastic handle on one side; the handle was missing from the other side. Of?cer Blakely asked O?Loughlin to sit on the curb while he ran a check on him. O?Loughlin complied with this request. In the meantime, Detective Grow Was driving O?Brien to the police station to look through photograph books. He was told about Of?cer Blakely?s interaction and he drove O?Brien to the Nobscott Square area. She was sitting in the front passenger seat of his cruiser. According to Grow?s report, he stopped across the street from where O?Loughlin was standing with Of?cer Blakely; as he shone his headlights on them, O?Brien stated I that she thought it was the man who raped her, but that she wanted to hear his voice because she could identify his voice. Detective Grow drove the cruiser over to O?Loughlin, and Of?cer Blaker engaged O?Loughlin in conversation at the back of the cruiser. According to Grow?s report, O?Brien stated ?emphatically? that this was the voice of the person who raped her. O?Loughlin was arrested and transported to the police station. His clothing was taken as evidence. According to Grow, there were bloodstains on O?Loughlin?s clothing. According to O?Brien, there were scratches on her buttocks, which had bled. O?Brien was driven home. She was never shown the photograph books at the station. O?Loughlin made no post-arrest admissions and denied that he was the person who had attacked O?Brien. O?Loughlin stated that he had been at his home in Framingham when the crimes occurred. The FPD went to O?Loughlin?s residence and spoke to his sister, who con?rmed that O?Loughlin had been there earlier in the evening. .- mm?nl?' .. . April 19 and 20, O?Brien described her attacker to the FPD as a white male in his teens: approximately 5? I 0" tall; thin build; dark hair that was parted in the middle and that conic down over his cars: a very light moustache: and a couple ofstrands of hair on his chin. At the time ofhis arrest, O?l.oughlin generally matched this description in that he was a white male in his teens; was approximately 5' tall; weighed approximately 150 pounds: had brown hair that was parted in the middle and that came down over his cars: and had blue eyes. Although Detective Grow?s report indicated that O?Brien positively identi?ed O'Loughlin during the show-up identi?cation procedure, O?Brien testi?ed at a probable cause hearing ten days later that she did not get a good look at her attackcr?s face and that she told the police she would rccognim his clothing and voice. O?Brien testi?ed at a pretrial suppression hearing and at trial in l983 that when she ?rst saw O?Loughlin with the police, she could not make an identi?cation. She was ?pretty sure? based on his height. clothing. and hair but she wanted to hear his voice. After being driven closer to O'Loughlin, O?Brien identi?ed him by his voice. O?Brien testi?ed at a pretrial suppression hearing that she could not visually identify O?Loughlin and that all she could say about the voice was that it was a teenager?s voice. At trial, O?Brien testi?ed that the voice was ordinary and that there was nothing special or distinctive about it. On April 19 and 20, O?Brien described her attacker as wearing a light brown or tan coat with sheepskin on it, a dark brown shirt, brown or tan corduroy trousers, and work boots. When he was arrested, O?Loughlin was wearing a light brown corduroy coat with no sheepskin on it, a grey sweatshirt, dark brown corduroy pants, and work boots. O?Brien testified at a pretrial suppression hearing in 1983 that O?Loughlin?s jacket was not the jacket that was worn by her attacker. The FPD reports do not contain any description by O?Brien ofthc knife used by her assailant other than the fact that it was ajack knife. PD Detective Grow described knife as a small jack knife with a brown handle. O?Brien testi?ed at a pretrial suppression hearing that the knife held by her assailant was made of wood but was ?a sort of red leather color? and was ?sort of a red color.? At trial, she testi?ed and-L?? A .k - ?an? - that the knife?s handle was ?red leather" but identi?ed O'Loughlin?s knil?c as the knife used by her assailant. and it was admitted as an exhibit. The FPD did not attempt to obtain a search warrant for O?Loughlin's residence to search for items of clothing, knives. or other items or potential evidentiary signi?cance- Footwear Impression Evidence FPD Of?cer Michael Leporati took multiple photographs of footwear impressions in the wooded areas where O?Brien was taken by her assailant. Of?cer chorati also made impressions in wheat flour, sand, ink. and clay of the bottoms of O?Loughlin?s work boots. At trial in 1983. the work boots. scene photographs. and footwear impressions were admitted as exhibits, and Of?cer Leporati opined that a footwear impression at the scene Was consistent with having been made by O?Loughlin?s boot. Detective Grow testi?ed that O?Loughlin was wearing work boots with Vibram brand soles when he was arrested. Neither the Commonwealth nor O?Loughlin?s attorney had the boots examined, or comparisons made, by an outside footwear impression expert. There was no testimony about wear patterns or imperfections in the soles of O?Loughlin?s work boots. O'Loughlin?s attorney did not present any expert evidence on the number or frequency of Vibram-brand soles on footwear in society. Forensic Evidence The rape kit was sent to the Massachusetts State Police Crime Laboratory, where it was examined by Chemist Nancy Murphy. She testi?ed at trial in 1983 that the two smear slides inside the kit showed evidence of seminal fluid residue. No further forensic analysis was performed on the rape kit. O?Loughlin?s attorney did not retain a forensic expert or request any further testing of the rape kit evidence. In March 1983, after the verdicts, O?Loughlin?s attorney ?led a motion requesting access to the rape kit for testing of the seminal fluid residue to determine whether O?Loughlin?s blood type matched that of O?Brien?s assailant. The trial judge, through an assistant clerk, told the parties to draft an agreement to accomplish this and he would approve it. Neither the former ADA nor O?Loughlin?s attorney recall that this ever occurred and it appears that the rape kit was never sent out for further testing. . - v?m 1dr- We? u-h?lnm-H-eum-?e? O'Loughlin?s clothing at the time ofhis arrest was sent to the MSP Crime Laboratory as well. Chemist Murphy determined that there was no seminal fluid on his underwear or pants. Chemist Murphy detected thin red-brown smears on O?Loughlin?s grey sweatshirt. The smears were determined to be human blood but further testing for blood type was inconclusive. Chemist Murphy testi?ed that she could not determine how long the smears had been on the sweatshirt and that they could have been there for weeks or longer. O?Leuahlin's Alibi Evidence At trial in 1983, O?Loughlin testi?ed that on April 19, 1982, he returned home from work in the late afternoon, tool-t a nap starting at about 5:30 pm, had dinner, called ?'iends about a party that was taking place that night, took a shower, got dressed, and le? his house at about 10:30 pm. to meet a friend who would drive him to the party. He testi?ed that he walked to a convenience store and bought a soda. He was stopped by the police as he was wall-ting away from the convenience store. O?Loughlin testified that he told the police that he did not commit the sexual assault, that he had been home all night with his sister, and that he could prove that he had been at home. In April 1982, O?Loughlin lived over two miles from the location where the sexual assault occurred. He lived approximately one mile from the convenience store in Nobscott Square. O?Loughlin?s mother testi?ed that O?Loughlin was home on the morning of April 19 but that she was working that afternoon and then visiting her hospitalized father until 11:00 pm. that night (he passed away on the morning of April 20). Shortly before midnight on the night of April 19-20, O?Loughlin called home ?in a near panic? from the police station. She woke up her daughter, and they went to the police station, where they were interviewed by the FPD about O?Loughlin?s whereabouts that night. O?Loughlin?s sister testi?ed that O?Loughlin got home from work at about 4:00 pm. on April 19, that she woke up O?Loughlin at about 7:00 pm. and that he left the house at about 10:30 pm. In addition to providing a statement to the FPD, O?Loughlin?s sister retrieved clothing that O?Loughlin had been wearing earlier that day and provided them to the police. O?Loughlin?s older brother, John, testi?ed that he saw O?Loughlin ?#mmW? - -wf, v?ww-vw. . T1 r. . Harv?; a t-?uuluW?amamwwh?L inside their home at about 4:30-5:00 pm. but then John left and did not return until after midnight. O?Loughlin?s friend and the friend?s sister testified that O?Loughlin called their house at about 8:00?8: 5 pm. regarding the party. The mother of another friend of O?Loughlin testi?ed that O?Loughlin called her house at about 7:45 p.m. looking for her 5011. Procedural History On the night of January 6, 1982, O?Loughlin (then 18 years old) was contacted by the FPD regarding a masked armed robbery of a Cumberland Farms convenience store in the McGrath Square area of Framingham on January 2, 1982.3 O?Loughlin admitted that '7 V- .. his ??iend, Robert Hansel, wanted to rob the convenience store, that he drove Hensel to the store, that he waited next to the front door while Hensel confronted the store clerk with a knife and robbed the store of about $60, and that he drove Hensel away after the robbery. O?Loughlin retrieved thejacket and ?stocking cap? that he had been wearing and provided them to the FPD. Based on these admissions, the FPD arrested O?Loughlin was 1' and Hensel. Hensel told the police he had dared O?Loughlin to accompany him and that ?it was only on a dare.? They were charged in the Framingham District Court with masked armed robbery. O?Loughlin was released on bail.4 As set forth above, O?Loughlin (then 19 years old) was arrested by the FPD on the night of April 19, 1982 for the kidnapping and sexual assault of O?Brien. At some point, he was released on bail. On April 29, 1982, a probable cause hearing was held in the Framingham District Court. O?Brien testi?ed at this hearing. Probable cause was found. In May and June 1982, both cases against O?Loughlin the armed robbery and the sexual assault were presented to a grand jury, which returned indictments. On September 23, 1982, O?Loughlin pleaded guilty in the armed robbery case and q? .. . was sentenced to an indefinite term at MCI Concord. He was taken into custody. On February 22, 1983, Superior Court Justice John Paul Sullivan conducted an evidentiary hearing on O?Loughlin?s motion to suppress O?Bnen?s identi?cation. FPD Detective Grow was one of the two detectives who spoke with O?Loughlin. O'Loughlin had no prior criminal record before this incident. 8 amm?uwwm -- O?Brien, FPD Detective Crow, and FPD Of?cer Blaker testi?ed to the circumstances of the show-up identi?cation procedure. Judge Sullivan denied the motion from the bench.5 Jury selection then began for the trial. The Commonwealth was represented by ADA (and former Massachusetts District Court .ludge Broker) and O?Loughlin was represented by Attorney (and former United States District Judge) Edward Harrington. Evidence was presented to thejury from February 23, 1983 through February 25, 1983, at which time jury deliberations began. On March I983, thejury returned guilty verdicts on the indictments charging O?Loughlin with rape of a person under 16, kidnapping, assault and battery by means of a dangerous weapon (knife), and possession of a Class controlled substance (marijuana). The jury returned not guilty verdicts on the indictments charging O?Loughlin with assault with intent to murder and sodomy. On March 7, 1983, Attorney Harrington ?led a motion requesting permission to remove the rape kit from the trial exhibits in order to conduct further testing of the seminal ?uid residue on the two smear slides. An Assistant Clerk wrote to both counsel stating that Judge Sullivan wanted the parties to confer and dra? an appropriate agreement to accomplish the testing. No such agreement was dra?ed. No ?n?ther testing occurred. On March 9, 1983, Judge Sullivan ?led a six-page opinion setting forth his reasons for denying O?Loughlin?s motion to suppress identi?cation. On March 15, 1983, Judge Sullivan conducted a hearing on O?Loughlin?s motion for a required ?nding of not guilty or for a new trial. Judge Sullivan denied the motion, commenting that he could not act as the thirteenth juror and that he could only address matters of law. On the same date, Judge Sullivan conducted a sentencing hearing. It was noted by the Court that Probation had written a presentence report and that numerous letters in support of O?Loughlin had been submitted. Attorney Harrington stated that he was ?absolutely convinced that a miscarriage of justice has occurred here due to an honest 5 Under the standards announced recently by the Supreme Judicial Court, it is questionable whether O?Brien's out?of-court identi?cation and her in-court identi?cation ofO?Loughlin would be admissible at trial. See v, C'r'rn'tort. Mass. 2014 WL 7150564 at ?4-5 (Dec. 17, 2014) (noting the suggestive circumstances inherent in pretrial identi?cation procedures); Commonwealth v. Comm, Mass. 2?l4 W1. T150510 at (Dec. 17,2014) (extending Crayton '3 ?good reason" standard to cases in which an eyewitness has not made an unequivocal positive identi?cation ofthe defendant during a pretrial identi?cation procedure). 9 .m A - . -r7.-Q ?I'I'lz-beII :tmvr'v-.u4?f ri?l." -1 an, J?jgu?wun misidentification.? Judge Sullivan imposed a forthwith sentence of 4-6 years in state prison, commenting that it was not appropriate to impose a sentence above the lower end of the advisory sentencing guidelines. On March 21 and 23, 1983, Attorney Harrington wrote letters to FPD Chief Arthur Martins stating that ?an inj ustice? had occurred and asking the police to investigate other potential suSpeets, including whether any teenager resembling O?Loughlin had been arrested for sexual ofTenses. On April 12, 1983, Attorney Harrington wrote a follow?up letter to FPD Chief Martins. The Commonwealth is not aware of any written responses ?'om the FPD to these letters. It does not appear that these letters, or similar requests, were ever sent to ADA Broker or anyone else at the MDAO. It does not appear that Attorney Harrington ?led any pretrial motions seeking any exculpatory or third-party culprit evidence in the possession of the FPD. On May 6, 1983, Attorney Harrington sent a letter to PD Chief Martins asking him to investigate an individual who had been arrested for disturbing the peace in a location near the sexual assault. On January 6, 1984, the Massachusetts Appeals Court af?rmed O?Loughlin?s convictions in a rescript opinion. On March 1, 1984, the Supreme Judicial Court denied O?Loughlin?s request for further appellate review. On December 8, 1986, O?Loughlin was released from prison on parole. CommonWealth?s Re-Investigation Of This Case In late 2012, FPD Detective Lieutenant Kevin Slattery (Slattery)6 contacted the undersigned Assistant District Attorney to discuss information and evidence that he had uncovered suggesting that O?Loughlin may have been wrongfully convicted based on a good-faith misidenti?eation of him by O?Brien. Having grown up in Framingham and having been a police officer with the FPD for over 30 years, Slattery was aware of this case and knew of O?Loughlin. Based on his suspicion that there were unresolved issues with this case, Slattery began his own independent review ot'the facts and uncovered 6 During the course ofthe rte-investigation ofthis case, Detective Lieutenant Slattery was promoted to Deputy Chief, his current position within the FPD. 10 r7 Two-xv v. i i . u- . 1 .- - A (Mn-13?? . g. . .1 nuns .1 'nM? - .. - i'I-l-l? rW i. i i, evidence of other sexual assaults and disturbing incidents before and after the sexual assault ofO'Bricn that led Slattery to conclude that another male teenager, who bore a striking resemblance to O'Loughlin, might have committed these crimes. In order to protect this person?s privacy rights, the Commonwealth will refer to him by the pseudonym ?John Smith? (Smith). Beginning in early 2013, acting on Slattery?s information, the MDAO undertook a comprehensive effort to retrieve the case ?les and physical evidence associated with this case. Extensive and repeated inquiries were made of the FPD, the archive system responsible for storage of the closed case ?les, the MSP Crime Laboratory, the Middlesex Superior Court Clerk's Of?ce, and the Massachusetts Appeals Court. It was learned that the case ?le had been destroyed in accordance with state record retention policies, that the PD had disposed of all physical evidence, that no physical may-1. 1? cw" evidence remained in the custody of the Crime Laboratory, and that no trial exhibits remained in the custody of the Clerk?s Of?ce. Accordingly, there is no longer any physical evidence in this case that can be retested or further analyzed. The MDAO was able to gather FPD reports; photographs taken by the PD at the crime scenes and of FPD Of?cer Leporati?s footwear impressions; pleadings; and transcripts of the pretrial 1 suppression hearing, the trial, and the sentencing hearing. The MDAO was not able to retrieve a transcript of the probable cause hearing in the Framingham District Court, aside from excerpts attached to motions ?led in Superior Court, nor was it able to retrieve transcripts of the evidence presented to the grand jury. In addition to retrieving whatever documents and photographs existed, the MDAO and Slattery re-interviewed retired PD Detective Grow, retired FPD Of?cer Blakely, retired FPD Of?cer Leporati, and O?Loughlin?s alibi witnesses. The MDAO and Slattery made contact with, and spoke to, O?Brien and her elderly mother. The MDAO interviewed both the former prosecutor and the former defense attorney on this case. Acting with O?Loughlin?s consent, the MDAO and Slattery obtained case-related correspondence and other documents from O?Loughlin?s elderly mother. Throughout this process, Slattery was in contact with O?Loughlin, who resides in another state. In August 2013, O?Loughlin came to Massachusetts and consented to an extensive interview . . s. Ii." ?him? all-mam - r? .1 711- IN- by the undersigned and Slattery.7 The MDAO reviewed, analyzed, and discussed numerous police reports and reports of interview that it received from Slattery in 2013 and 2014 relating to a plethora of sexual incidents that occurred in Framingham before I and after the sexual assault of O?Brien in I982. The re-investigation of this case revealed the following: 1) In April 1982, John Smith lived with his family on the north side of Framingham approximately one to two miles away from the location where O?Brien was assaulted. 2) The two locations were connected by an aqueduct and Smith used the aqueduct on multiple occasions to travel to the area where O?Brien lived to visit friends. 3) In April 1982, Smith was 17 years old and bore a striking facial resemblance to O?Loughlin, who was then 19 years old. Sec FPD photos attached hereto as Exhibit A. 4) In July 1978 (when he was 13 years old), Smith-Mas charged in the Framingham Juvenile Court with breaking and entering in the daytime and larceny under. In August 1978, the case was continued without a ?nding for one year; it was dismissed in August 1979. 5) At about 8:30 pm. on August 9, 1980 (when he was 15 years old), Smith was arrested by the FPD and charged with two counts of open and gross lewdness. Both incidents occurred on the same night in locations near O?Brien?s residence. In the ?rst incident, Smith exposed himself to a 5 1/2 year old girl and asked her for oral sex; an adult identi?ed Smith. In the second incident, Smith exposed himself to a middle-aged woman; the woman?s adult son chased and caught Smith I and held him until the FPD arrived. Smith was found to have a knife in his possession; the report does not describe the knife. In October 1980, Smith was adjudicated delinquent on both counts and was placed on probation for one year. L?IrF-il?-xm?r - Copies of the FPD reports are attached hereto as Exhibit B. 6) In 1980 or 1981, a 15-year old female residing in a home near O?Brien?s home saw a male standing in her back yard looking into one of the windows to her 7 During Slattery?s contacts with O?Loughlin, the interview of O?l.oughlin, and the retrieval ofrecords from O?Loughlin?s mother in 2013, O?Loughlin was not represented by counsel. 12 31:91. house. The female recognized Smith, leaned out of a bathroom window, and spoke to him. Two FPD of?cers rc5pondcd to the call, caught up with Smith, and spoke with him. They did not arrest Smith. The PD cannot locate a report on this incident. Slattery interviewed the female and one of the responding FPD r-?ru-n x. of?cers. Copies of Slattery?s reports of interview are attached hereto as Exhibit C. 7) At about 6:00 pm. on May 6, 1981 (when he was 16 years old), Smith approached an 11-year old female as she was riding her bicycle around a school paw?"Wr near O?Brien?s residence. Smith initially asked the female what time it was (similar to what O?Brien was asked). He then exposed himself and offered to pay .: the female for oral sex. The female ?ed the area, told her father, and the FPD was called but could not locate the male. About two weeks later, the female observed Smith at a school science fair, recognized him, and told school of?cials, who told the FPD, who arrested Smith. In August 1981, Smith was adjudicated delinquent on this charge and was placed on probation for six months, with a condition that he attend counseling sessions at the court clinic. Copies of the FPD reports are attached hereto as Exhibit D. 8) Approximately one week before the sexual assault of O?Brien in April 1982, a 12- year old female who was home alone in a residence near O?Brien?s residence saw a male (believed to be at least 20 years old) masturbating at a picture window at the back of her house. Upon seeing the female, the male attempted to enter the home. The female hid under a bed and called her nearby aunt, who called the FPD. The FPD responded to the call but were not able to locate the male. No arrest was made. Slattery interviewed the female; she stated that, at the time, she knew of a male named Smith through her older sister but that she did not know what he looked like; she did not know O?Loughlin. A copy of Slattery?s report of - . interview is attached hereto as Exhibit E. 9) At about 1:26 am. on June 21, 1984 (when he was 19 years old), Smith was stopped by an FPD of?cer alter he was observed acting suspiciously behind a gas station. Smith had in his possession a red Swiss Army jack knife, about $70 in 13 41 an .3 444.41? .uo?in-hn A os??M cash. and a large amount of quarters. Alter the Terry stop was completed. Smith was sent on his way. A copy ofthc FPD report is attached hereto as lixhibit F. "w 'J?w 10) Shortly after 6:00 pm. on the same date. learning ot?this encounter. another FPI) of?cer compared Smith?s ?ngerprints to latent fingerprints recovered from a residential burglary on the north side of Framingham. There was a match. Later that night, Smith was arrested by the FPD and charged with burglary and larceny under. Based on ?irther investigation and admissions made by Smith. he was charged with having committed several burglaries and larcenies at multiple homes on the north side of Framingham in the several months before June 21, 1984. The next day, Smith was arraigned in the Framingham District Court and he was released on bail. Copies of the FPD reports are attached hereto as Exhibit G. 11)On the night ofJuly 29-30, 1984 (when he was 19 years old)I Smith broke into a 5 it home in Framingham, dragged a 14?year female into the back yard, told the female he had a knife, used a sock from the home to gag the female, and -- . vaginally raped the female. The female?s parents returned to the home, heard the female screaming, and found her in the back yard. Smith ?ed the area but FPD Of?cer Leporati recovered a latent ?ngerprint from a pair of eyeglasses in the back yard; the ?ngerprint matched the known ?ngerprints of Smith, who was anested and made admissions to the FPD. Smith was held in custody. Copies of the PD reports are attached hereto as Exhibit H. .v 12) In August 1984, Smith was indicted for the sexual assault and the multiple er burglaries. In June 1985, Smith pleaded guilty in the Middlesex Superior Court to aggravated rape, armed burglary, and multiple counts of burglary. He was sentenced to 15-30 years? imprisonment in state prison and lesser concurrent sentences. A copy of his prior criminal history printout is attached hereto as Exhibit about July 17, 1995, Smith (age 30) was released on parole from his committed sentences on the 1984 offenses. Copies ofthe parole records are attached hereto as Exhibit J. 14) On or ab0ut July 1. 1996, Smith (age 31) was arrested by the FPD while engaging in sexual relations with a prostitute in a public area. On or about July 15, 1996. 14 hJ a. 1qu ?but. Smith?s parole was revoked and he was re-incarcerated. On or about August 29, WW). Smith was charged in the Framingham District Court with a offense: the case was continued m'thout a ?nding for six months. See Exhibits I and J. 13011 or about September 18. 2006. Smith (age was released on parole from his committed sentences on the 1984 olTenses. See Exhibit J. 16) On or about July 9, 2008. Smith (age 42) was taken into custody for violating his conditions of parole. On or about July 22. 2008, Smith?s parole was revoked for the second time and he was re-incarcerated. See Exhibit J. 17) On or about January 28, 201 1. Smith (age 45) was released from state prison after the expiration ofhis committed sentence. See Exhibit J. l8)0n Febnmn' 26, 2011, the FPD interacted with Smith in an area near the location of the sexual assault of O'Brien. Smith told the FPD that he hadjust gotten out of jail. that he wanted to visit an old friend who lived in that neighborhood, and that he was taking a ?nostalgic walk" in the area when he was stopped by the police. A male who lived in the area told the FPD that Smith had shown up ?out of the blue? at his residence. A cepy ofthe FPD report is attached hereto as Exhibit K. 19)0n or about June 20, 2011. Smith (age 46) brought a laptop computer to the Best Buy store on Route 9 in Framingham for servicing due to various problems caused by viruses in the computer. A technician discovered multiple sexually- explicit images ofprepubescent females. The FPD spoke to Smith, who admitted ownership of the computer but denied downloading the offending images. The next day, the FPD obtained a wanant for Smith?s arrest and located him walking near train tracks in Natick, after having tried to commit suicide. Smith admitted that he had downloaded the images and that he was ?fucked up? bacause he had been raped as a child. Smith was taken to a hospital for treatment. Copies of the FPD reports are attached hereto as Exhibit L. 20) Smith was charged initially in the Framingham District Court with possession of child pomegraphy. He was indicted subsequently for three counts of possession ofchild pornography. See Exhibit l. 15 at? . Jinan-4?" . .ruHr!" 1 u! yawn-+- 1H4 Bil . 1.. I.. -n h? ll. - nauunn?h? . A 41 -uA In connection with this case, the MDAO was provided With 3 COPY Ofa report ?0f and evaluation" of Smith by 3 P5Y011010gi5t~ The report concluded that, based primarily on his traumatic childhood, Smith had developed maladaptive behavior patterns ?re?ective in his general and sexual criminal offense histories? and that Smith was dealing not only with his being the pr??r?i'JY" victim of bullying as a child but also ?the emotional sequella of his own sexual abuse as a child.? A copy of this report is attached hereto as Exhibit M. 22) On August 9, 2012, Smith (age 47) pleaded guilty to the charged offenses in the Middlesex Superior Court and was sentenced to a ten-year term of probation. See Exhibit I. 23) On August 5, 2013, in connection with the arrest by the FPD of Smith?s girlfriend on a default Warrant, Slattery had occasion to interview Smith at the Framingham police station. This interview was partially recorded. During this interview, i i Slattery reviewed the facts of the sexual assault of O?Brien. Smith stated that it was ?possible? he committed the rape but he could not be sure because he used to drink heavily, causing him to suffer blackouts. Smith stated that he used to spend a lot of time in that neighborhood and that he would walk into back yards to look into the windows of homes. He freely Spoke about his prior convictions and stated that he was ?pretty sure? he committed the O?Brien rape but that he does not have a speci?c memory of it. At another point, he stated he was ?99% sure? he committed the sexual assault of O?Brien but could not remember it because of his past history of drinking. He stated that he used to wear a ?state trooper-type? jacket with a fur collar, that he used to wear hiking boots with a Vibram brand sole, and that he used to carry a red Swiss Amty knife until his encounter with the FPD on June 21, 1984 (see 1] 9 above). A copy of the transcription of Slattery?s interview of Smith is attached hereto as Exhibit N. Review OfThis Case In 2014, the MDAO hired an Innocence Program Coordinator and put tOgether a Conviction Integrity Committee (CIC) to review and analyze post-conviction claims of wrongful convictions, including requests for DNA or other testing of physical evidence. 16 ors in the MDAO as well as The consists ol'severnl ol'the most experienced prosecut the District Attontey. 'l?he CIC meets regularly to review, analyze, and discuss detailed memorandn about specilic eases previously prosecuted by the MDAO regardless of whether post-conviction motions have actually been ?led. The O?Loughlin case was the ?rst such post-conviction case reviewed by the On July 30. 2014, alter reviewing a detailed memorandum prepared by the Innocence Program Coordinator, the met to analyze and discuss the case. In addition to hearing from Slattery and the undersigned ADA, the heard directly from O?Loughlin and his counsel. O?Loughlin made a presentation directly to the CIC and answered various questions put to him by seasoned prosecutors. On September 2, 2014, the CIC re-eonvened to analyze additional information about the case. At the conclusion of that presentation, based on the above evidence uncovered by and the MDAO during the re-investigation ofthis case, the CIC voted to recommend that the MDAO assent to any motion filed by O?Loughlin for a new trial. In November 2014, after further consideration, the District Attorney authorized the MDAO to take that position in connection with this case. On or about November 20, 2014, O?Loughlin ?led the instant motion. Legal Standards Rule 30(b) of the Massachusetts Rules of Criminal Procedure provides that the Court may grant a new trial ?at any time if it appears that justice may not have been done.? Where, as here, a defendant is seeking a new trial on the ground of newly discovered evidence, he ?must establish both that the evidence is newly discovered and that it casts real doubt on thejustice of the conviction.? Commonwealth v. .Groce. 397 Mass. 303, 305 (1986). Accord: Commonwealth v. Weiehell, 446 Mass. 785, 798 (2006). The evidence said to be new not only must be material and credible but also must carry a measure of strength in support of the defendant?s posrtton. Thus newly discovered evidence that is cumulative of evidence admitted at the trial tends to carry less weight than new evidence that is dtfterent in kind. Moreover, the judge must ?nd there is a substantial risk that thejury would have reached a different conclusion had the evidence 17 -. at r: in If! l?.pM gi-??u Walnut?pk-?guLl?m Arum u: ham?i been admitted at trial. The nirilionjudge decides not whether the verdict would have been different, but rather whether the new ewdence would probably have been a real factor in thejury?s deliberations. Not only must the allegedly new evidence demonstrate the materiality, weight, and signi?cance that we have described, bl? It must also have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial (or at the time of the presentation of an earlier motion for a new trial). The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence. Grace. 397 Mass. at 305-06 (internal citations omitted). Accord: Commonwealth v. Wright. 469 Mass. 447, 461 (2014); Commonwealth v. Dchnedetto, 458 Mass. 657, 664 (2011). See also Commonwealth v. Markham. 10 Mass.App.Ct. 651, 654 (1980) question before the judge is whether the new evidence offered creates a substantial risk that a jury exposed to that information would have reached a different conclusion?). Based on its exhaustive of this case, the Commonwealth believes that the striking facial resemblance between O?Loughlin and Smith, the fact that Smith was a male teenager who lived in the area and who frequented the area where the sexual assault occurred, and the pre-l983 sexual crimes and other misconduct committed by Smith would have been admissible as third-party culprit evidence to argue to the jury that Smith ?committed the crime or had the motive, intent, and opportunity to commit it.? Commonwealth v. Silva?Santiago. 453 Mass. 782, 800 (2009).8 In addition, such evidence could have been used by O'Loughlin to establish reasonable doubt by demonstrating that the FPD investigation in 1982 was inadequate or missed signi?cant evidence pointing to Smith as the culprit. Commonwealth v. Bowden, 379 Mass. 472, 485-86 (1980) (evidence may be admissible to show ?[t]he failure of the authorities to conduct certain tests or produce certain evidence,? because ?[t]he fact that eeitain tests were not conducted or certain police procedures not followed could raise a reasonable "'Wide latitude" is given ?to the admission of relevant evidence that a person other than the defendant may have committed the crime charged. ifthe evidence is probative value, and will not tend to prejudice?nreonfusc. all doubt should be resolved in favor 4S3 Mass at silo-0 [citations and internal quotation titarks omitted). "The opportunity to present third-party culprit evidence is dimension because it is rooted in the right oferiminal defendants to a meaningful opportunity to present a complete defense eon, ass. .2014 WL at ?4 (Dec. 26, Mid} (Citations. and internal quotation marks omitted}. 18 - "rF who ran-.1 v.1: lie-rmn r" 'It'l LI 331'?. doubt as to the defendant?s guilt in the minds of the jurors?). See also Commonwealth v. Cassia: Mass. 2014 WL 7071513 at '14 (Dec. 16, 2014) (a defendant may challenge the adequacy of a police investigation under a Bowden defense by using ?information concerning third-patty culprits to question whether the police took reasonable steps to investigate the crime?) (quoting Commonwealth v. Ridge. 455 Mass. 307. 316 (2009); Silva?Santiago, 453 Mass. at 802 of the police to investigate leads concerning another suspect is suf?cient grounds for a Boa-den defense")- Accordingly, the Commonwealth believes that it has uncovered evidence that is credible, material, and supportive of O?Loughlin?s motion for a new trial? For this reason, it assents to the allowance of his motion. Conclusion Viewing the evidence gathered by Slattery and the MDAO against the backdrop of the above legal standands, the Commonwealth's position is that such evidence would have been admissible at tn'al and that it creates "a substantial risk that thejtny would have reached a different conclusion had the evidence been admitted at trial.? Commonwealth Wright. 469 Mass. 447, 461?62 (2014) (quoting Grace. 397 Mass. at 305-06). In reaching this conclusion, the Comonwealth also takes into account Smith?s .- . A. i ?l ?1 egregious sexual misconduct from 1984 to the present as we? as his statements to Sla?ery "1 2013- Since it appears that justice may not have been done in this case, the Commonwealth assents to the allowance of O?Loughlin?s motion for a new trial. For the Commonwealth, MARIAN T. RYAN DISTRICT ATTORNEY Michael J. Pelgro First Assistant District Attorney Middlesex District Attorney?s Of?ce 15 Commonwealth Avenue - Wobum, MA 01801 781?897-8810 mttelprot?istmemaus BBO #393280 DATED: December 30, 2014. Certi?cate of Service I certify that on December 30, 2014, I caused the Commonwealth?s Response To Defendants}; Motion For A New Trial to be served on counsel for the defendant by emailing and by mailing, postage prepaid, Culties to them. Michael J. Pelgrov First Assistant District Attorney BBO #393280 20