new trial required where case turned largely on credibility of witnesses, and combination of errors “created a risk that the evidence may not have been weighed in an unbiased manner”
How later courts described this case
- new trial required where case turned largely on credibility of witnesses, and combination of errors “created a risk that the evidence may not have been weighed in an unbiased manner”
- several improper questions to defendant were not basis for reversal
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). If prosecutors do not see the light, they must be made to feel the heat.
It seems, as I said in Commonwealth v. Dowdy, 36 Mass. App. Ct. 495, 501-504 (1994) (Brown, J., dissenting), that the only way to bring about carefully prepared and proper closing arguments and to stop the abuse is to reverse summarily. That appears to be the only effective way to stop the abuse. 1 Moreover, in light of the admonition that “care must be taken not to exploit, even inferentially, latent racial paranoia” or bias (Commonwealth v. Washington, 28 Mass. App. Ct. 271, 275-276 [1990] [Brown, J., concurring]), and of the other transgressions by the assistant district attorney, such as the improper questioning, see, e.g., Commonwealth v. Long, 17 Mass. App. Ct. 707, 708 (1984), this case a fortiori requires reversal.
It still is my hope that ultimately a prosecutor whose misconduct is flagrant will “be required personally to reimburse the Commonwealth for the costs of any resultant retrial.” Commonwealth v. Dowdy, 36 Mass. App. Ct. at 503 n.4.