Cape Cod Crusader

Unforgotten Hero: A Father's Memorial visit at Boston Common

 The clear-eyed letter from January 2003 reads, in part: "I am not afraid of dying. I am more afraid of what will happen to all the ones that I love if something happens to me. Soon enough I will be in the desert, outside the City of Bagdad [sic], in full combat gear, ready to carry out my mission, wondering how this all happened so fast..."

Alex was the 968th U.S. soldier killed in the war. It took the family nine months to get any details about his death; about a year ago, they received an e-mail from a Marine sergeant explaining that the young lance corporal's battalion had come under fire in Najaf. After a three-hour gunbattle, as Alex prowled through a four-story hotel, a bullet caught his temple. He was 20 years and 20 days old.

Read the rest of the story here:

http://momfromhlwdflorida.blogspot.com/2006/07/my-friend-my-neighbor-carlos.html

I didn't make it in time for the peace rally at the Boston Commons on Saturday, October 11, but instead I attended a silent protest of a greiving father who morns for his fallen son, U.S. Marine Alexander Scott Arrendondo,who was stationed in Iraq.  The photos you see were taken and hung inside a tent, a shrine for his son Alexander. As I entered the tent and looked up at the large photographs, I was suddenly consumed with the horror of this war.   The messages of the photos  filled me with raw emotion of the reality of this tragedy.  As I stared into the face of a fallen hero, I was quickly reminded of my own son, not much older than the young boy who stared back at me in the glossy photo.  I was humbled by this experience and extended my sympathy to a grief strickened father in search for peace and an end to this war that took his son.  I recalled hearing about this man who burned a van after hearing the  news of his son's death.   Carlos has severe burn scares on his legs and chest, a reminder of that terrible  day when he got word of his lost hero.  

3 comments »

Cape Cod Connection: Greg Greenway of Harwich at Johnny D's in Somerville, Obama Fundraiser

He's been described as having a voice of  Jackson Browne while his songs,  filled with desire for world peace, are said to mirror our always beloved John Lennon. His style is a soulful Ray Charles, coupled with the words of the gospel like that of Mehelia Jackson.

His name is Greg Greeway, born and raised in Richmond Virginia,  he and his wife are both full time residents of Harwich for a number of years.  A polite man, excusing himself for shouting at a friend sitting next to me, he rushes passed me with guitar case in hand.  I ask him if he'd like to be featured on my blog at Cape Cod Today, and he answers with a smile, "well sure, and I'll give you one of my CD's".

He tells me that while meeting Michelle Obama, she expressed how his lyrics have become an inspiration for her speech as she says to a crowd of supporters, "The world as it is and the way it could be".   His song, "Standing on the side of Love", is one he dedicates to the country and the Obama campaign.   I was fascinated by his gentle manner and willingness to express a deep compassion for humankind. 

Greg also performs at the First Encounter Coffee House, Eastham in March to benefit the Closeline Project, at the Nauset Regional High School.  He returns every year to dedicate his time, while encouraging others to show support for a worthy cause.  You can find more information about Greg here at his website: 

http://www.greggreenway.com/tours/, and also under Greggreenway at my space.com.

Thanks to all for a successful evening. Performers who dedicated their time:  Alastair Moock, Kevin Connolly, Lloyd Thayer, Merrie Amsterburg and Peter Linton, Greg Greenway, Michael Troy, Anne Heaton, Scott Alarik, Peggy Seeger, Geoff Bartley, Thea Hopkins, Chris O'Brien, Amy Fairchild, Chandler Travis, Dinty Child, Jim Fitting and Kimon Kirk.

And special thanks to Greg Greenway, who helped make this blog possible and the staff at Johnny D's in Davis Square, Somerville for making it happen!

1 comment »

The Wonderful Art World of Ned Sonntag and Rob and Tracey Logan

4 comments »

When a Rush to Judgment is an Injustice

 What if the expert or witness testifying is not telling the truth?

We have learned by experience or by watching trials, jurors rely on the testimony of witnesses to base their conclusions.  Jurors are just people, they can make mistakes. They are influenced by their own lives and prejudices. We all have them, every one of us. How we choose to exercise them is up to us.

What if the expert or witness testifying is not telling the truth, or manipulating the facts?

Shouldn’t they be discredited, held accountable? Isn’t that perjury-constituting a jail sentence? What does the jury have besides what is provided to them in the courtroom? Their own convoluted speculations as to how events occurred-- if all facts are not laid out before them? Isn’t that dangerous when deciding a defendant’s fate?

Those of us who have been selected to a jury panel know that it is hard work to listen attentively to lawyers, judge, witnesses and experts who direct all their comments. I often wondered how difficult a task it must have been for those jurors who had to return to their Cape Cod lives after the trials were over. Would they be overcome by fear of the townspeople and how they would view their decision? Had the jurors taken their duty seriously enough when reaching a verdict?

What of the Grand Jury? Are they responsible to challenge a prosecutor if he does not deliver and present all facts of a case they are deciding and whether it should constitute a trial? Is every member of a Grand Jury provided a handbook and required to read it? Are they questioned as to its contents by court officials? Take a look at what is expected of members of a Grand Jury.

What if some on the jury panel do not meet the standards of their civic duty? Determining whether someone found innocent or guilty of the crime accused is an important duty—is it not? Do the majority of jurors understand how important? When the hype is over do they struggle for a lifetime, of whether they made the right decision to put someone behind bars for all eternity or set them free?

A rush to judgment for the sake of appeasing local hysteria?

One juror came forward to state regret at their decision, as I watched the 48 hour broadcast last evening of the sensationalized Fells Acre’s Child Abuse Case, in Malden, Ma., of 1984. (see link to updated story below).  

Was it the same for cases on the Cape?

Should all responsibility rest on the minds of the jurors who have no legal expertise? Isn’t it up to the prosecution to provide the evidence so an informed jury can make an educated decision at the end of a trial?

Isn’t the prosecution working for the people who expect the utmost professionalism? Shouldn’t their primary duty be to investigate the facts of the case and bring the criminals to justice? One would hope that is how it is—but the more I read cases, past and present, it doesn’t seem to be that way at all. Certainly, if the proof is beyond a reasonable doubt and there is no disputing a criminal’s guilt, but what if there isn’t enough proof? Shouldn’t they hunt for it until it’s all there? And if it’s not there, shouldn’t they be forced to disclose that information to the media and make a public apology? Is their main objective career aspirations alone, to sacrifice the truth at the cost of innocent lives?

• Worthington
• Carbone
• Lancaster

We, the citizens of the commonwealth have a duty to ourselves, our children and our fellow citizens to make our system of justice better. The prosecutors should be those we respect, who deserve our loyalty, but also have loyalty to the people who pay their salary, and who will go after real criminals, allow the innocent to get a fair trial, and be set free when found innocent or proven enough reasonable doubt exists—isn’t that how our laws read? Should we all abide by them, including those who work to uphold them?

I arrived to the Cape shortly after Christa Worthington’s death in the summer of 2002. Although, I felt sad for this woman who lost her life, I really had little interest in the story at first.  When inappropriate comments surfaced at my workplace in Wellfleet, I began to question the case. Didn’t I have a right, as you have the right, to ask questions since we were living there full-time, paying taxes for a DA who should have done his very best as prosecutor working for the Commonwealth of Massachusetts? Am I missing something?

After I wrote my first blog about the case, the story seemed to take on a life of its own. With each passing day, more information would surface, some facts, but more hidden truths remain. Comments from locals and those in other places began flooding my blog. Then the trial, and verdict, now pending appeal. Are we any closer to finding out what really happened?

I often wonder, if I hadn’t written that first blog, where would I be today? Would I be better off, or not?  I know now that the world is a much more complicated place than I first thought it to be--that maybe good people can do bad things. It’s part of our human frailty. There are some who are just plain evil; there are some who strive to do only good. How does that apply to this story and others?

As much as I would like to recall my fond memories of the Cape, all I can remember is its ugliness. Maybe that is an unfair characterization. I would have to agree. The place is not all bad, just some of its people and the way they do things. The same can be said for every town across America, and the world.  But I saw the Cape as a fishbowl and I wanted to swim in the great sea.

The case of Christa Worthington will always haunt me because I am not satisfied with the outcome of the trial. Do others feel the same way? Would they openly express their dissatisfaction? Is the door to justice for Christa now closed?  Maybe it’s for the best. Maybe there is just too much ugliness there that no one wishes to be exposed. Does it have anything to do with how many black men have fathered children with white women on Cape Cod? Does anybody care if a black man is imprisoned for the wrong reasons?

I saw a people who are indifferent to the outcomes of trials held in Barnstable County. Why haven’t all the facts been presented in the cases I listed above, and others I know little of,  but have also been disputed?

I left the names of the victims who died to stand alone because I believe their cases remain unsolved. Maybe you can fill in the blanks, but please before you do-- weigh all the facts. Until that day arrives, they must be shelved for another time, when someone has the guts to take on a system that is just not good enough.

It’s taken the Amiraults’ many years to clear their name and find freedom from a system that did not weigh all facts before sentencing them to years in prison. I hope it doesn’t take that long for others who have also been falsely accused and sentenced without consideration of their innocence. Lives in ruin, years stolen they cannot get back. You can’t put a price on freedom—especially when it should have never been taken away.

I’ve learned that injustices go one everywhere, not just on Cape Cod, but it still doesn’t make it right.

• The Fells Acre scandal.
• The Amirault's story.

 In 1995, after eight years in prison, their convictions were overturned on a technicality. It was after the The Wall Street Journal had taken a provocative look at the case, calling it a miscarriage of justice.

“Supporters like Debby Hersey, whose son Ben attended the school, blame hysterical prosecutors, sensationalized news coverage, and panicked parents. "I wanted to say, 'This is crazy; this is crazy," she says. "These are good people, you know? What's motivating you'?"

111 comments »

Start up your engines and get hot about this great nation---from the man who revitalized an auto industry

Mr. Lee Iacocca, who left Ford to strengthen the failing Chrysler Corporation, has a recent book, "Where have all the leaders gone?"  And it looks like it might just make the best sellers list.  From excerpts listed below, it appears he's trying to start some new engines--and I don't mean the one's sitting in your garage.  In plain talk, he's saying that we have been asleep at the wheel--and he's right! Now we just need to round up a few hundred thousand like him who are willing to speak out about the gross injustice of corporate greed and the current administration.  How  did they erode the fabric of our once thriving economy?  I hope Mr. Iacocca will do a book tour in Massachusetts sometime. In the meantime, I wanted to share the preview of a refreshing book that appears to tell it like it is. Thank you, Lee, for what looks to be a great hit and thanks for all those favorite cars you helped create:  The cool Ford Mustang, cozy, luxurious  and smooth riding Lincoln Continental Mark  III,  and my favorite, 1967'  fast and "they hear me comin", Mercury Cougar, all owned by family members.  (67' cougar was mine) Great cars and a great man who gives back to the people through his philanthropic dedication. At 83, he is still looking great! And obviously still has much fight left to inspire a nation.  We need it!

Finding a cure for type 1 diabetes remains the sole mission of The Iacocca Foundation.  Proceeds of his book go to support the Iacocca Foundation. 

By Lee Iacocca with Catherine Whitney

 I
Had Enough?

Am I the only guy in this country who's fed up with what's happening? Where the hell is our outrage? We should be screaming bloody murder. We've got a gang of clueless bozos steering our ship of state right over a cliff, we've got corporate gangsters stealing us blind, and we can't even clean up after a hurricane much less build a hybrid car. But instead of getting mad, everyone sits around and nods their heads when the politicians say, "Stay the course."

Stay the course? You've got to be kidding. This is America, not the damned Titanic. I'll give you a sound bite: Throw the bums out!

You might think I'm getting senile, that I've gone off my rocker, and maybe I have. But someone has to speak up. I hardly recognize this country anymore. The President of the United States is given a free pass to ignore the Constitution, tap our phones, and lead us to war on a pack of lies. Congress responds to record deficits by passing a huge tax cut for the wealthy (thanks, but I don't need it). The most famous business leaders are not the innovators but the guys in handcuffs. While we're fiddling in Iraq, the Middle East is burning and nobody seems to know what to do. And the press is waving pom-poms instead of asking hard questions. That's not the promise of America my parents and yours traveled across the ocean for. I've had enough. How about you?

This is excerpted from Where Have All the Leaders Gone?. Copyright © 2007 by Lee Iacocca. You can read a longer except on the Border's site here.

18 comments »

Mazzone, The Cowboy Cop speaks out on The Worthington Case

An exclusive interview with a former Wellfleet Policeman
Was Jeremy Frazier the real killer?

Read an exclusive interview with Officer Michael Mazzone, formerly of the Wellfleet Police Department.

Crusader:  "So, Michael can you tell us what your experience has been as an officer working for the Wellfleet Police and your dealings with Jeremy Frazier".

Michael:  "Sure, Crusader, this is what I can tell you."

"I wondered for a long time after McCowen was arrested and implicated Jeremy Frazier, why wasn't there a more extensive look taken at him, for example, when he was a teenager, he was caught breaking into a house in Eastham. The police surrounded the house and one of the officers caught Jeremy Frazier attempting to crawl from a window.  He had socks on his hands! Even back then he knew about leaving evidence behind at a crime scene.

JF pulled knife on a tourist

Or the time he was arrested for pulling a knife on a tourist at the Wellfleet town pier. He was never prosecuted because the victim was from Europe, and could not make the trial.

JF told everyone he was in some gang, and even has a tatoo on his arm to prove it.  They allegedly have off Cape Connections.  JF was the focus of a local long term narcotics investigation. He bragged about being pulled over and laughed because he had four pounds of marijuana under his seat that was not detected.  JF and his friends favorite sport was going to parties and finding someone who they could all beat up on, and then leave before the police would arrive.  The bottom line is, JF is a thug! 

Says Mulvey is a liar

Shawn Mulvey is a liar. Being a former drug dealer himself, his alliegences lie with no one.  I do not believe JF stayed with him the night of the murder.   I wish I could tell you why they killed Christa Worthington.  I have to say, if I was to speculate, I would have to agree with some of the things you,  the Cape Cod Crusader mentioned.  Ahh yes...the sun devil clique...how could I have forgotten!

But really, did they kill her for the thrill of it? One thing I learned about the Cape in the years I lived there, really anything is possible.  I was never summoned for the trial. My belief, they didn't want to pay the freight for a week to bring me back from Florida.  I can tell you some things I do know, maybe they won't amount to much in some minds, but the truths I know to be fact I am afraid to share with no one.

The crime scene portion of the case appears to have been botched from the beginning.  I know some of the people who were there and I blame no individual person for what may or may not have happened at the scene as far as contamination goes.   The state police in Massachusetts  investigate all homicides.  After all, everyone in Truro was a suspect. I remembered one day when a rumor began to circulate like wild fire one of the Truro PD people was being "picked up" in connection with the case. Turned out to be false, I think, but then again you have to remember, this is the Cape.....anything is possible.  If someone hands you a plate full of crap, basically all you have to work with, is a plate full of crap!  Who knows the extent of the damage done to the crime scene at the time of discovery? All it would take is one false step, wiping away one fingerprint or cross contaminating some kind of biological evidence and the case could be lost.  Any other witnesses who may have been present are all considered suspects.

Stood by helplessly and watched as they sold drugs

"Maybe it wasn't even suppose to be a murder... maybe just a rape, or even less... but they go there, and Christa is dead"Since I began to deal with JF and several others in and around the lower cape area, I had the opportunity over the years to watch them progress from teenagers to adults. I watched all the hype around town with the gang talk, and I stood by helplessly and watched as they sold drugs and basically had a free reign over the town. Such a small town, with incidents of home invasion style burglaries, vehicles and houses being broken into, and situations directly related to the local drug trade.  But the fact remained, these types of investigations on lower Cape, mostly due to the complexities of the area, were just difficult to make.  People just didn't want to hear there was a problem.   So nothing was ever really done about it, hence the Frazier's of the world could do whatever they wanted ...it was open season. 

So, I watched as they became more and more violent.  I watched it go from marijuana to cocaine, and I remember the first time I heard about this gang stuff, supposedly, two gangs met somewhere in Eastham and a big fight took place, another guy who hung with JF, hit someone with his car, Eastham Police Dept. checked it out, I never knew what came of it, but this is what it became.  I believed these guys, knowing they belonged to some "bush league" chapter of some ridiculous gang, always felt they needed to somehow step up their game.  What better way to make the big time then killing someone...we know they were together the night of the murder.....maybe it wasn't even suppose to be a murder... maybe just a rape, or even less... but they go there, and Christa is dead". 

170 comments »

Phone Bugging?--The Worthington Conspiracy

 I've been asked to pass this along by a person who claims to be a victim of ILLEGAL WIRETAPPING by those involved in the murder and cover up of Christa Worthington. 

http://members.aol.com/tazma2001/

I have to admit, just recently, I've heard some loud beeps while on the phone with someone discussing the Worthington case.  And at that precise moment, the phone went dead.  

So, could it be true--the illegal phone tapping that was going on during the investigation and case?  Did Sgt. Mason really take a drinking cup out of the trash used by Peter Manso at a previous book signing? Aren't these violations of our constitutional rights?

Just how far will they go in this so called Patriot Act which primary purpose was to keep us safe from terrorists?  I wonder who are the real  terrorists?  Maybe this is just another way for those in power to strip us of our inalienable rights.  What about the unaccounted budgetary expenses?

230 comments »

Just for the public record-The Worthington Case

Exculpatory Motion

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, S.S. SUPERIOR COURT
NO. 05-109 (01-03)

COMMONWEALTH
v.
CHRISTOPHER M. McCOWEN,
Defendant.
__________________________________________________

DEFENDANT’S MOTION FOR A NEW TRIAL PURSUANT TO
RULE 30(*) OF THE RULES OF CRIMINAL PROCEDURE

__________________________________________________ 

Now comes the defendant Christopher M. McCowen and moves this Honorable Court to order a new trial in this matter pursuant to Rule 30(*) of the Massachusetts Rules of Criminal Procedure since it “appears that justice may not have been done”. The prosecution here withheld material exculpatory evidence, in the form of police reports and criminal records regarding key Commonwealth witnesses as well as the State Crime Laboratory’s failings, despite discovery requests by the defense.

On December 22, 2005, the defendant filed a series of pre-trial discovery motions, including but not limited to motions seeking the following specific pieces of discovery evidence and information:
Intra and Inter Departmental Records; Reports and All Scientific Tests; Discovery Regarding Commonwealth Witnesses; Pre-trial Discovery; and Juvenile, Probation, Arrest and Criminal Records of Commonwealth Witnesses.

In the aftermath of these filings, this court held several discovery conferences on February 10, 2006, April 7, 2006 and October 11, 2006 resulting in the Commonwealth’s filing of a Discovery Compliance Certificate on October 11, 2006. However, despite these procedures and specific discovery requests, all of the evidence listed in the following paragraphs was known to the Commonwealth about its own witnesses and still withheld from the defendant, bringing us to this point.

OVERVIEW
If and when this court considers this motion, it is respectfully suggested that the following questions may come to mind.

Is such evidence admissible? Uncharged criminal conduct, as well as prior convictions, is admissible on a variety of different grounds. Some issues may be established by evidence of prior bad acts, including the existence of a common scheme, a pattern of operation, an absence of accident or mistake, identity, intent or motive. Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Although there is a reluctance to admit such evidence, it is generally recognized “…that bad acts evidence can legitimately be introduced for purposes other than to prove the defendant’s bad character, such as to prove the defendant’s ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’" United States v. Lavelle, 751 F.2d 1226, 1275 (D.C. Cir. 1985). See also Commonwealth v. Bryant, 390 Mass. 729 (1984); Commonwealth v. Brown, 389 Mass. 382 (1983). Once relevance is established, the test for admissibility is whether the probative value outweighs any possible prejudice. Commonwealth v. Errington, 390 Mass. 875, 881-882 (1984).

Was the evidence specifically requested? As the trial court knows, the motions seeking this evidence were filed well before the trial. Those motions sought all records involving the proposed Commonwealth witnesses whether the prosecution called those witnesses or not. The process that was followed in this case was that in a series of court- ordered conferences on the issues of discovery production, the prosecution responded to the requests in these motions, objecting on the record to none. On October 11, 2006 the Commonwealth filed a Certificate of Discovery Compliance, indicating that the prosecution had proffered everything that was requested of it pursuant to Rule 14 of the Massachusetts Rules of Criminal Procedure. The trouble is that all of the requested evidence was not so produced.

Should the Commonwealth have produced this evidence or should the defendant have discovered it on its own? The Commonwealth did not produce any of the proffered police reports, arrest reports and laboratory audits detailed in this motion. It is the argument of the defendant that he did not have the obligation to seek out discovery materials that he had requested by motion and assumed had been provided by the Commonwealth. If the Commonwealth takes the position that it cannot be ordered to seek out and provide information to the defense from independent witnesses, it must be remembered that a prosecutor's duty of disclosure applies to information in the possession of the prosecutor and information in the possession of persons "sufficiently subject to the prosecutor's control." Commonwealth v. Martin, 427 Mass. 816, 824 (1998); Commonwealth v. Tucceri, supra; Commonwealth v. Neal, 392 Mass. 1, 8 (1984). Persons considered "subject to the prosecutor's control," and, therefore, subject to the prosecutor's duty of disclosure, are those individuals acting, in some capacity, as agents of the government in the investigation and prosecution of the case. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"). See also Commonwealth v. Martin, supra, and cases cited ("A prosecutor's obligations extend to information in possession of a person who has participated in the investigation or evaluation of the case and has reported to the prosecutor's office concerning the case"); Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992) ("A prosecutor's duty, however, extends only to exculpatory evidence in the prosecutor's possession or in the possession of the police who participated in the investigation and presentation of the case"); Commonwealth v. St. Germain, 381 Mass. 256, 261-262 (1980); Commonwealth v. Martin, supra at 823-824 (prosecution should have secured and turned over test results obtained by State police laboratory on prosecution's behalf).

It is understood that a prosecutor has no duty to investigate every possible source of exculpatory information on behalf of the defendant but he has an obligation to disclose exculpatory information that is in the possession of the prosecutor or police. Commonwealth v. Campbell, 378 Mass. 680, 702 (1979). Information known to an independent witness, but unknown to the prosecution, is within the possession and control of the prosecution if that witness has acted, in some capacity, as an agent of the government in the investigation and prosecution of the crime. Here the Commonwealth itself handled the cases that were not disclosed and the paperwork withheld was part of their files in the District Attorney’s Office. Commmonwealth v. Beal, 429 Mass. 530, 531-533 (1999).

Our rules of criminal procedure also address the prosecution's duty of disclosure. On a motion of a defendant, the prosecution has a duty to provide exculpatory information. See Mass. R. Crim. P. 14 (a) (1) (C), 378 Mass. 874 (1979). That motion was filed in this case several times over. This also extends to those facts "within the possession, custody, or control of the prosecutor." Id. All of the withheld evidence at issue was in the Commonwealth’s possession in this case prior to trial, was requested by the defendant and should have been produced.

THE STANDARD
In the seminal United States Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963), it was held that:
Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not "the result of guile," to use the words of the Court of Appeals.
Brady v. Maryland, supra at 87-88.

To demonstrate constitutional error when evidence is withheld three elements must be shown: (a) suppression by the prosecution after a request by the defense, (*) the evidence's favorable character for the defense, and (c) the materiality of the evidence. Brady v. Maryland, supra; Commonwealth v. Stone, 366 Mass. 506, 510-511 (1974). In summary, the Brady rule is that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id.; Moore v. Illinois, 408 U.S. 786, 794 (1972). In Massachusetts, to establish a Brady violation a defendant must show that evidence actually existed, Commonwealth v. Adams, 374 Mass. 722, 732 (1978), tending to exculpate him, Commonwealth v. Pisa, 372 Mass. 590, 595-596 (1977) and that the prosecution failed to disclose it on proper request. Commonwealth v. Gilday, 367 Mass. 474, 487 (1975); Commonwealth v. Adrey, 376 Mass. 747, 753 (1978).

In this case, it is contended that all three grounds exist for a new trial here. The defendant here argues that this Court should order a new trial because the prosecution failed despite several requests to turn over exculpatory information related to key government witnesses, including but not limited to Jeremy Frazier. To make matters worse, the Commonwealth also failed to disclose key and critical evidence regarding the inadequacies and failings at the Massachusetts State Police Crime Laboratory during the same time period when the forensic testing was performed on the evidence in this case. For either or both reasons, the defendant contends that he is entitled to a new trial in this case.

The United States Supreme Court has ruled that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, supra at 87; See United States v. Bagley, 473 U.S. 667, 675 (1985) (purpose of disclosure requirement is to ensure fair trial); Commonwealth v. Daye, 411 Mass. 719, 728 (1992). A duty of disclosure was subsequently prescribed for situations where defendants had either made only a general request for exculpatory materials, or made no such request at all. United States v. Agurs, 427 U.S. 97, 107-108 (1976).

In dealing with a claimed failure of the prosecution to disclose exculpatory evidence to a defendant, our Supreme Judicial Court differs from the Supreme Court of the United States in a significant way. The hearing judge's task is to decide what effect the omission might have had on the jury. The law of the Commonwealth thus preserves, as well as it can in the circumstances, the defendant's right to the judgment of his peers. The issue is not what, if any, impact the late disclosed evidence has on the judge's personal assessment of the trial record. The hearing judge’s goal is to determine what would have happened if the prosecution had fulfilled its pretrial duty to disclose the exculpatory evidence and the jury had heard this evidence. The jury's role should be an acknowledged part of any assessment of a defendant's claim of prejudice caused by the prosecution's omission.

The hearing court must also decide what degree of prejudice or possible prejudice warrants or requires the granting of a new trial because the prosecution improperly failed to deliver the exculpatory evidence to the defense. When the prosecution has denied the defendant specifically requested exculpatory evidence, a defendant need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure. Commonwealth v. Gallarelli, 399 Mass. 17, 20-22 (1987); Commonwealth v. Wilson, 381 Mass. 90, 109 (1980), quoting United States v. Agurs, supra at 106 (1976).

It is enough that on a full and reasonable assessment of the trial record this court find that the absent evidence would have played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty. It should also be remembered that the prosecution's state of mind is irrelevant in deciding whether due process of law requires a new trial for any defendant from whom the prosecution improperly has withheld exculpatory evidence. In the end, the Supreme Judicial Court has not required proof of bad faith in addition to prejudice caused by the prosecution's withholding of evidence in deciding that a new trial is required in such circumstances. Commonwealth v. Phoenix, 409 Mass. 408, 412 & n.1 (1991). There is a discretionary range in cases like this within which the trial judge may properly award a new trial, even if a new trial is not constitutionally required and even if the appellate courts would not have granted a new trial on their own assessment of the record.

When, as here, specifically requested evidence is at issue, it will be considered material if the defendant "demonstrates that a substantial basis exists for claiming prejudice from the nondisclosure." Commonwealth v. Tucceri, supra at 412; Commonwealth v. Schand, 420 Mass. 783, 787-788 (1995). In the Tuccieri case, the Supreme Judicial Court set forth very specific standards on dealing with the issue of prosecutorial nondisclosure cases thusly:  “…prosecutors, who are agents of the State and often have access to information that defendants may not have, should be encouraged to disclose exculpatory evidence that in fairness defendants should have for their defense. Of course, a prosecutor cannot always know that a particular piece of evidence is or might be exculpatory. A rule that encourages prosecutors to make pretrial disclosures of obviously or even arguably exculpatory material would not only promote fair trials 6 but would also help to avoid the difficulties of post-trial judicial review. Judges, therefore, should be sensitive to the allowance of motions for the disclosure of specific information claimed to be exculpatory…when the omission of the prosecution is knowing and intentional or follows a specific request, a standard of prejudice more favorable to the defendant is justified in order to motivate prosecutors to be alert to defendants' rights to disclosure…In such cases, we overlay a prophylactic rule upon common law and due process fairness standards that lessens the burden in proving prejudice. We acknowledge that these disclosure requirements are inconsistent with the traditional adversary role of litigants. But the duties of a prosecutor to administer justice fairly, and particularly concerning requested or obviously exculpatory evidence, go beyond winning convictions. See Commonwealth v. Wilson, 381 Mass. 90, 109 (1980). See also S.J.C. Rule 3:08, PF 7, 382 Mass. 800 (1981) (standards relating to the prosecution function, disclosure of evidence by prosecutor).”

Commonwealth v. Tuccieri, supra at 406-408.

In this case, the defendant McCowen made a general request for all exculpatory evidence regarding witnesses, made specific demand by motion for all information relating to witnesses including Jeremy Frazier and for all information relating to laboratory testing. Nonetheless, the Commonwealth withheld all of the following evidence from the defense and it is here contended that this Court should order a new trial because of it.

THE WITHHELD EVIDENCE
The following evidence, uncovered through the efforts of journalist Peter Manso during his research for his upcoming novel on the Worthington homicide case, was deliberately withheld from the defense by the prosecution prior to and during the defendant’s trial. This critical information was known to the government, was clearly discoverable, was requested by the defendant yet still withheld from the Court and the defendant by the prosecution.
In what appears to be an unsettling pattern of uncanny commonality, the same investigators, arresting officers, defendants/witnesses and prosecutors thread through all of the withheld evidence. At the very least, this data was undisclosed and was likely deliberately withheld by the same District Attorney’s Office that handled most of the challenged cases. In other words, the District Attorney’s Office must have known about the evidence and there is no possible reason that the Commonwealth would fail to produce such evidence other than with the intent to deliberately suppress it.
What follows is a sampling of the evidence that was suppressed by the prosecution follows and primarily involves prosecution witnesses.

JEREMY FRAZIER
The prosecution called Frazier as a witness while withholding details of a criminal episode involving Frazier’s threats to kill and assault and battery by means of a dangerous weapon (knife) on July 2, 2003 in Wellfleet, Massachusetts on two British tourists (Exhibit A). This arrest was made by Wellfleet Detective Michael Mazzone, who was listed as a witness yet not called by the prosecution during the trial. Detective Mazzone was also Christopher McCowen’s handler regarding his reported cooperation with law enforcement prior to his arrest in April 2005. This incident was also investigated by Officer Lloyd Oja of Wellfleet who testified for the Commonwealth during the trial about the defendant’s cooperation. These are but two examples of the disconcerting similarities common to the suppressed evidence in this matter.
The Commonwealth dismissed Frazier’s Wellfleet case prior to McCowen’s trial and did not reveal this case or its details to the Court or the defense despite its own involvement in its dismissal, the identity of the judge who dismissed it, the eerily similar details of that crime to the one on trial, the violent and threatening comments made by Frazier during the attack and the identity of his cohorts. As this Court likely remembers, it allowed cross-examination on a series of questions to Frazier and other witnesses related to the Commonwealth’s failure to turn over clearly exculpatory evidence. Those issues included but were not limited to David Murphy’s criminal record and the telephone call on Murphy’s telephone, then in the possession of Frazier, to the State Police Barracks on the morning that the prosecution claimed Ms. Worthington was murdered. The evidence withheld and discussed here was also critical to the defendant’s claim that Frazier was the killer of Christa Worthington, that the Commonwealth’s failure to charge him with murder was not just good fortune but the result of his special relationship with law enforcement, that he was not just a dupe and that he alone was her killer.  For the Court’s information, Frazier’s partners in the Wellfleet incident also had extensive criminal records. Andrew Parent had been arrested five times for crimes including conspiracy to violate drug laws, possession of a Class D substance and multiple other crimes. Frazier’s other companion in the Wellfleet attack was Jesse Pecoraro, who had a criminal history including arrests for distribution of cocaine and possession of cocaine. Most notably, Pecoraro was picked up in a major drug arrest on November 15, 2005 that was disposed of by the Barnstable County District Attorney’s Office prior to the McCowen trial (Exhibit *). Additionally involved in this incident was Jeremy Frazier’s brother Jason, who was arrested for assault and battery and disorderly conduct on October 31, 2003. A witness to the incident, National Park Service worker Rebecca Savin, told investigators that she was not intimidated by Frazier and his gang and also “that she was not afraid of the local people involved in this and had no problem telling me what she observed.” The case was eventually dismissed for lack of prosecution after the victims returned to Great Britain and did not appear for trial.

CHRISTOPHER BEARSE
The Commonwealth called this witness in its case to impeach McCowen’s claim that he left the Bilbo party in Eastham, Massachusetts on January 4, 2002 and thereafter that Frazier went to the Worthington home in Truro where he killed her. However, the prosecution did not reveal that Bearse had a record for ten crimes including resisting arrest, multiple instances of assault and battery, forgery, larceny, malicious destruction of property, intimidating witnesses and use of stolen credit cards. It is important to note that Detective Michael Mazzone was again was the arresting officer on several of Bearse’s arrests (Exhibit C).

ARTHUR DUBOIS
The Commonwealth listed but did not call this witness, who was also at the Bilbo house party on January 4, 2002, yet still did not reveal that he had multiple criminal episodes including breaking and entering, assault with a dangerous weapon (a knife), operating under the influence, assault and battery (striking the blood-covered victim in the head and face repeatedly with a beer bottle shouting "I should just kill you" (Exhibit D). In another incident, this witness assaulted a nurse at the Cape Cod Hospital. It was Dubois who Frazier, Mulvey and their gang threw out the window of the Bilbo house during the brawl in the home on the evening that the prosecution claims that Worthington was murdered.

RYAN BUCKLES
This prosecution witness, again listed but not called by the Commonwealth, had a background which was not revealed by the government which included six arrests including operating under the influence, possession of marijuana, assault and battery on his stepmother, assault and battery on his girlfriend, burglary and breaking and entering in the nighttime with intent to commit a felony. Most notably, Buckles’ arrest for home invasion and assault and battery with a dangerous weapon on October 16, 2004 was not revealed to the defense. In that incident, Buckles used a gun on a victim who was shot three times in an incident that involved narcotics and heavy caliber weaponry into a house party. This criminal case was investigated by the same team simultaneously handling the Worthington matter, namely Troopers Melia, Mason, Plath, Mawn, Knott, Kotfilia, Squire, McCabe and Gilardi. (Exhibit E). Buckles, of course, played a major role at the Bilbo party on January 4, 2002 since it was he who hid in the closet while Frazier and his gang, including Shawn Mulvey, were looking to injure him only a few hours before the Commonwealth claims Christa Worthington was killed.

KEVIN LORD
This prosecution witness (listed by the Commonwealth but not called) had been arrested five times, twice for assault and battery with a dangerous weapon, one involving a knife attack on a woman. The other arrest involved Lord’s kicking a male victim in the head with three companions. It was Lord who accompanied Frazier to the Bilbo party on the evening that the Commonwealth maintained that Christa Worthington was murdered.

CRIME LABORATORY
No documentation was provided to the defense citing the reported deficiencies discovered in the three audits conducted at the Massachusetts State Police Crime Laboratory while the McCowen DNA evidence and other DNA samples in this case were being handled at that same laboratory. Those studies were performed in 2001, 2003, and 2004 and were known to the Commonwealth (Exhibits F and G). Additionally, the prosecution withheld the fact that Robert Pino, the then-CODIS manager at the Massachusetts State Police Laboratory who handled the McCowen CODIS match in this case, was at that time under investigation for misconduct and negligence while he was processing the defendant’s sample.

CONCLUSION
The importance of these witness’ backgrounds and the related laboratory evidence to the defense in this case is clear. Frazier and his associates, not McCowen, were the suggested culprits in this homicide as part of the defense and almost all were present at the Thomas Bilbo party in Eastham on January 4, 2002, only a short time before the alleged stabbing of Christa Worthington. The Commonwealth claimed at trial that it also was at this party that Frazier, Mulvey and others, including most of these witnesses, engaged in a violent brawl and then allegedly went home to bed rather than to Worthington’s house, a place well known to Frazier due to his employment at Magnum Movers.

Along these lines, Frazier’s violent knife attack on two British tourists at the Wellfleet Pier with other criminal associates was important to the defense as well. In that attack, Frazier used a weapon the same as alleged to have been used in the Worthington homicide and was a stunning example of similar criminal conduct that would have been used to impeach Frazier. This evidence was withheld from the defense by the prosecution despite its handling of the Wellfleet crime and its own dismissal of the case. The prosecution even allowed Frazier to lie on cross examination when asked about his history of arrests after a specific motion to produce such evidence had been filed and agreed to by the Assistant District Attorney handling the case prior to trial.

The laboratory testing and the DNA results which allegedly tied McCowen to the crime scene and the victim Christa Worthington’s body was, along with McCowen’s alleged statement to the police at the time of his 2005 arrest, the lynchpin of the Commonwealth’s case. Any failing, deficiencies, lack of training, understaffing, negligence or failure to follow guidelines would have been fodder for cross-examination in this case. The crime scene’s handling by authorities as well as the handling of the specimens of potential other suspects was one of the key issues that the defense pursued in its theory of the case.

In conclusion, it is clear that the defendant McCowen made a specific request for disclosure of the aforementioned evidence by pre-trial motioning and the prosecution withheld this evidence. In fact, the Commonwealth was involved in the prosecution of these cases and therefore knew the details of the arrests and convictions of these witnesses. In addition, it can be assumed that the prosecution knew of the failings of the State Police Crime Laboratory. In the McCowen case, there was clear suppression of this evidence by the prosecution after a request by the defense, the evidence was favorable for the defense and material to its case.
The Tuccieri Court warned that although a prosecutor cannot always know that a particular piece of evidence is or might be exculpatory, it is not for them to say. It is similarly contended that although this Court cannot prognosticate as to how the jury would have used such evidence, it should find that the prosecutor in this case should have made pretrial disclosures of even arguably exculpatory material in order to have guaranteed Mr. McCowen’s constitutional right to a fair trial. As a result, the defendant should receive a new trial by order of this court as a result of the actions of prosecution in withholding key exculpatory evidence from the defense.

November 25, 2007 Respectfully submitted,
CHRISTOPHER M. McCOWEN,
By his attorney,
Robert A. George, Esquire
BBO # 189400
77 Newbury Street
Suite Four
Boston, MA 02116
(617) 262-6900


Related articles:

http://www.provincetownbanner.com/a.../News/2/21/2008
Excerpt;

http://capecodvoice.com/CCV101906pg18.html

http://archive.capecodonline.com/sp...l/postdna18.htm

http://www.cbsnews.com/htdocs/foren...source_lab.html

WCAI/WNAN-Burke-Direct- Audio
http://streams.wgbh.org/online/play...template=cainan

WCAI/WNAN-Burke-Cross - Audio
http://streams.wgbh.org/online/play...template=cainan

 Testimony of DNA expert for prosecution during trial, Christine LeMire:

Christine LeMire  “Yes other items that were tested in this case for DNA analysis were a um red-brown droplet stain on a cutting board, a red-brown stain on the right side of Ava Worthington’s jumpsuit, a swabbing of keys found in the driveway passenger side of victims motor vehicle, a red-brown stain recovered from the right clog toe area – shoes recovered from um the residence – a swabbing of a red-brown stain from a left clog collected from the left outside heel area – um - same clog as previously noted – or same set of the pair.  Also, an apparent pubic hair from Christa Worthington’s torso, a swabbing of eyeglasses – a swabbing of a stain on the vest – lower right waist area – another pubic hair from the vest of Christa Worthington – the stain on the left sleeve of Christa Worthington’s shirt – another stain from Christa Worthington’s shirt at the rear center waist area – a swabbing of the left hand fingernails from Christa Worthington – a men’s silver watch – and four (4) pairs of underwear”

201 comments »

What's race got to do with it?

A Case that Rocked the Island--The Murder of Christa Worthington
What's race got to do with it?

On November 16, 2007, Christopher McCowen was convicted of murdering fashion writer, Christa Worthington of Truro. 

Yet, this case is now before the court once again.  This time a hearing to decide whether racial bias alone determined Mr. McCowen's fate of a life sentence without parole.  Within days of the shocking verdict, three jurors contacted defense attorney, Robert George of Boston.

Individually, they stated racial bias altered the decision among the majority of jurors leading to a conviction.  Since the jury panel had reached deadlock decision with three juror hold outs, many believed their story. Obviously, it was not a unanimous decision.

The three jurors sworn affidavits are before Judge Gary Nickerson at Barnstable Court where the hearing continues Februrary 1, 2008.  In a motion presented by Robert George before the court, defense charges the prosecution with "suppression of evidence", thereby violating Christopher McCowen's rights to a fair trial.

Yet there are other factors involved in this case that have yet to be determined by the court. Did a man get sentenced to life in prison based solely on the color of his skin?  Some believe the real killer is still walking among them on the island. If this is true, will they ever find out who really killed Christa Worthington, and why.

23 comments »

Race against the Wind

As our scientists continue to search for alternative ways to harness energy, world leaders persist in the fight for oil in the middle east.  If we could find other ways to supply our depleting energy resource, there would be no wars.   Some believe a wind farm for the Cape is the answer.  There is a place for everything, even wind farms. Nantucket Sound is not one of them.

Just like the stock market, you don't put all your money into one stock.  The same applies to the way we use products for energy. We must diversify our selection  as we have seen what happens when we are forced to rely on just one, we run the risk of losing it all.  

One source that has been used in Iceland is "geo-thermal energy", and has proven successful.  The biggest challenge for this resource is location. Not all areas on the planet can tap into geo-thermal energy.    

While I lived on the Cape, I became interested in the controversy over the proposed Wind Farm of Nantucket Sound.  Ned Sonntag, illustrator extraordinaire visually expressed what I could not put into words.  I believe a Wind Farm in Nantucket Sound would be a disaster to the island.   Just in the way over development of the land has ruined the island, so would a windfarm.  It won't be enough, not in the long run.  I believe geo-thermal is the way to go, and other ways that will not create problems for existing natural resources.  If we can tap into the earth's core, safely and economically, without disturbing what nature has bestowed, then why not?

It's obvious we have to come up with other forms of energy.  One is not enough. Hopefully, our leaders and scientists will help us discover sucessful alternatives so we won't have to rely on oil as our main source.  Maybe then we can live in peace among nations.

More information available from MIT here,  IcelandAdventure here and the Union of Concerned Scientists here.

Click on Ned Sonntag's War of the Winds above or here to see a larger image. 

5 comments »