Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Massachusetts Appeals Court Hears New trial Motion In Murder case

The Massachusetts Appeals Court will be conducting a hearing on February 10th to determine whether a new trial should be granted to Corey R. (hereinafter,the “Defendant”) for the 2001 killing of a school counselor, the Reverend Theodore N. Brown. This time, it is the prosecuting attorney who is pursuing the appeal.

You see, a Hampden Superior Court Judge granted the motion for a new trial. The Commonwealth contends the judge was wrong in allowing the motion.

The Defendant, who was 17-years-old at the time, had been convicted of second-degree murder for the December 5, 2001, stabbing death of Reverend Brown in a classroom. The trial was conducted in 2003 before the late Judge Thomas J. Curley Jr.

Judge Cornelius J. Moriarty ruled in February 2008 that the Defendant is entitled to a new trial on the basis of ineffective legal representation.

You see, Reverend Brown, 51, was a counselor at the alternative Springfield High School where the Defendant was a student. Apparently, the confrontation occurred after Reverend Brown told the Defendant that he had to comply with school rules and remove the hood of his sweatshirt. After several such admonitions, the Reverend was stabbed seven times in the chest and stomach and once in his right hand. He died at the scene.

After the trial, the Defendant was sentenced to life for second-degree murder, which means he could apply for parole after serving 15 years.

Judge Moriarty, in his ruling, concluded that the Defendant “was prejudiced” when his lawyer failed to produce evidence he had promised the jury in an opening statement.

The lawyer had told the jury that they would hear from a psychologist that the Defendant “didn’t have the capacity to premeditate, to intend to kill.” However, the defense never produced such a witness.

The court ruled that the expert witness was never called because the defense attorney “was justifiably fearful” if that, if he did call the expert, the prosecutor might have used the opportunity of cross-examination to reveal a previous stabbing performed by the Defendant. However, the court ruled that the lawyer could have requested that the witness be questioned out of the jury’s hearing so that the trial judge could make a decision whether to exclude testimony about the prior stabbing by the Defendant of his mother in 1999.

Attorney Sam’s Take:

Usually, in criminal appeals, it is the defendant who is appealing. This is because an acquittal cannot be appealed by the government. However, when there is an issue of law that is the controversy, and not a verdict, the government can appeal. Examples of this are suppressions of evidence due to search and seizure issues and motions like the one involved here.

Usually, matters such as what testimony will and will not be allowed are handled by a set of motions just prior t the start of the trial. They are called ‘motions in limine’. In this case, one would have expected that defense counsel got the ruling from the trial judge before the start of the trial.

This is important because the attorney in this case found himself in an extremely bad position. Apparently, he had promised the jury testimony which he was unable to deliver. In any trial, no matter which side, this is a devastating mistake. Particularly if you are the defendant in a criminal case, if you do not know you can present it…do not promise it.

It is important to remember that the defendant, at trial, need do nothing other than show up. Under the law, the defendant need produce no evidence or even question witnesses against him. Of course, this is seldom a good idea. However, it is one protection belonging to the defense that is worth exercising. If there is doubt as to whether or not you plan to produce a witness, the best practice is to shut up until you know that you will. Then, during closing arguments, the attorney can argue that, although he did not have any obligation to do so…he presented his defense witnesses. Instead, the attorney trying this case made the promise and failed to deliver. This is going to stick in the jury’s mind. He has broken his promise. He has lost credibility.

An attorney’s credibility is critical.

The judge allowing the motion for a new trial also found that there was another solution…having the hearing to see what the court would allow prior to deciding whether to call the witness. While certainly not as safe as handling it during the motions in limine, this could have worked too…although if the ruling was unfavorable, the defense would have been in the same position. Once the promise was made at opening statement, the die was cast.

If you are going to trial in your criminal matter, you want a defense lawyer who is experienced in bringing matters to trial. Trying cases is an art in itself and someone who does not have the experience in doing so is unlikely to know how to best defend you and can make such mistakes as the lawyer in this case. I have been a trial lawyer since 1985. If you wish to discuss it with me, please feel free to contact me at 617-492-3000.

To find the original story upon which this story is based, please go http://www.masslive.com/news/index.ssf/2010/01/mass_appeals_court_to_hear_req.html

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