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.

MATTAPAN MASSACRE MURDER TRIAL BEGINS WITH FOCUSS ON ONE EYEWITNESS’ CREDIBILITY

Often, a trial is like a Broadway play; it is, after all, a real human drama. Especially in the case of criminal trials.

One of the tricks of the trade, in both disciplines, is to manage suspense. Call it window dressing or call it crucial supporting evidence, but prosecutors sure seem to be setting the stage for the new feature presentation of the re-trial of the Mattapan Massacre murder trial.

This time, only one man stands in the prosecution’s hot seat….Dwayne Moore (hereinafter, the “Defendant”). This time nothing can be left to chance. This time, the Commonwealth gets to shift the burden of proof onto two, not only one like last time, main witnesses.

You see, the Commonwealth’s star witness last time was a gent who admitted to being in on the planning of the drug robbery. However, despite independent evidence to the contrary, he claimed to have stayed around just long enough to inculpate the two defendants and then conveniently left before the shooting started.

Apparently, the jury did not buy that beyond a reasonable doubt.

Fortunately for the Commonwealth, though, one of those severely injured, yet not quite killed, in the shooting has changed his testimony from the first trial so that he may just be able to help the prosecution get a conviction in time. The witness, Marcus Hurd (hereinafter, the “Witness”) testified in the first trial that he could not identify the man who shot him.

Guess who has changed his testimony.

So, now there is new hope for the prosecution that the original star witness plus the Witness, with his new story, will be enough to prove its case beyond a reasonable doubt.

Clearly, the Commonwealth knows that there will be nasty cynics such as myself who might doubt the sudden change of heart experienced by the Witness. So, in order to combat such a tendency on the part of jurors, the building of expectation is critical in preparing the jury for the Witness and his shiny new testimony.

That was done first by police testimony to set the scene. This time, though, it is important to build up not only the horrific scene of dead bodies, but to start to bolster the Witness even before he takes the stand.

Boston police officer Joseph Brown told the jury last week of his conversation with the Witness whom the officer described as lucid despite being shot in the back of the head.

“I asked him ‘Who did this to you?’ and he said, ‘I don’t know,’ ” the officer recounted to the jury. The Witness’ statement was consistent with the testimony he himself told the jury in the first trial.

This past September, however, the Witness changed his mind and his testimony. He announced that he had been “untruthful” on the stand because he feared retribution for being a snitch. However, seemingly having a sudden understanding of the facts in the case, he says he has had a change of heart. He told Superior Court Justice Jeffrey Locke that, “I don’t want to be the one to protect a baby killer.”.

Now, apparently suddenly realizing that a young child had been gunned down in the incident, the Witness is revealed to the jury, semi-warts and all, before he even takes the stand.
“I asked him what happened. He said, ‘Look man, I’m not going to lie to you. I came up here to buy some weed. Some guys came out and they jumped me. They robbed me. They took my clothes and then they shot me,’ ” Officer Brown recalled on the stand last week.

Attorney Sam’s Take On Credibility, Changed Stories And Drama

Normally, huge changes in testimony, particularly when the witness is admitting to have lied previously, mean huge problems in credibility. The Commonwealth knows this. However, it cannot simply not call the Witness to the stand for a number of reasons. The only option left, then, is to rely upon what is fitted in around the Witness’ testimony in order to bolster it.

Any experienced trial attorney, which prosecutors must be out of necessity, knows that there are many dramatic and psychological tricks one can use when trying to persuade any audience…including a jury.

Now, you can call me cynical if you like. However, I have tried many cases both as a prosecutor and as a defense attorney. Including homicide cases.

Right now, it is up to the prosecutor to provide what I would call “window dressing” in order to begin to sway the jury into believing the Witness even before he takes the stand. The confession of drug involvement, complete with “I’m not going to lie to you…” after just being shot is meant to make him more acceptable and believable.

Questions like, “Then why would he right away then lie about whether he could identify anyone” are for down the road…when the defense attorney has the temerity to suggest that the Witness is now lying.

There are many arguments, both pro and con in terms of the Witness’ sudden change in testimony. They will come up. We will discuss them.

As you watch the trial unfold, however, understand what is going on in the choices the Commonwealth is making. It is not accidental. This case is too important to them.

For the original story upon which this blog is based, please go to http://bostonherald.com/news/regional/view/20221102trial_focus_on_lone_survivor/

Posted in:
Updated:

Comments are closed.

Contact Information