prosecution first refused to disclose the witness’s identity, and then once the witness had been identified in a newspaper article, refused to grant the witness the same testimonial privilege it had granted her a month before in another case
How later courts described this case
- prosecution first refused to disclose the witness’s identity, and then once the witness had been identified in a newspaper article, refused to grant the witness the same testimonial privilege it had granted her a month before in another case
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). I am in full accord with the reasoning and result reached by the majority. I am compelled, however, to state again in the strongest and most emphatic manner I can muster that the Commonwealth “must take care to behave itself.” Commonwealth v. Mencoboni, 28 Mass. App. Ct. 504, 508 (1990) (Brown, J., dissenting), quoting from Commonwealth v. Felton, 16 Mass. App. Ct. 63, 66 (1983). See Commonwealth v. Tirrell, 382 Mass. 502, 513 (1981) (Kaplan, J., dissenting). The Commonwealth’s conduct here was not only unfair, it was outrageous. This was not a momentary misstep but a persistent course of conduct designed to prejudice the defendant. Defense counsel was absolutely correct when he argued that it was “fundamentally unfair for the Commonwealth to use a person *410 . . . as an agent for the purpose of investigating crime, and then try to insulate an essential witness to the defense . . . . They can’t have it both ways.” Moreover, the Commonwealth cannot (and should not even to attempt to) argue that there could be any legitimate reason for its interference with access to a witness, particularly this witness, and in this particular circumstance. This rush to a Pyrrhic victory is particularly puzzling in view of the success which the prosecutor’s colleague from the same office obtained by following an entirely proper (and laudable) course with the same witness in the Quirk case just a few days earlier.
The “fair trial” issue, aside, I also find only pain in the Commonwealth’s blatant invasion of the defendant’s right to counsel under the Sixth Amendment to the Federal Constitution. Cf. Commonwealth v. Mahnke, 368 Mass. 662, 692 (1975). I cannot fathom why the prosecutor would “remain[] on the line while defense counsel spoke with” this difficult witness. Cf. Commonwealth v. Manning, 373 Mass. 438, 443-445 (1977).
Judges do not like slick. And this is too slick for this court.
I also am compelled, if I may be indulged, to repeat one more time: If prosecutors are unwilling or unable to adhere to the canons and disciplinary rules, as well as simple notions of fairness, “they should turn in their tickets.” Commonwealth v. Young, 22 Mass. App. Ct. 452 , 457 n.1 (1986) (Brown, J., concurring). In any event, at the very least, see suggestion in Commonwealth v. Kozec, 21 Mass. App. Ct. 355 , 367 n.2 (Brown, J., concurring).