Petition for Writ of Certiorari — Antonio B. Nascimento-Depina, Petitioner v. Massachusetts

No. __________

In The

Supreme Court Of The United States

____________________________________________

ANTONIO B. NASCIMENTO-DEPINA,

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS

Respondent.

____________________________________________

On Petition For Writ Of Certiorari

To The Massachusetts Supreme Judicial Court

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________________________

Brad P. Bennion

Counsel of Record

P.O. Box 890118

East Weymouth, Massachusetts 02189

(617) 943-6164

bradpbennion@gmail.com

July 2025

Question Presented

Whether, after a state supreme court expressly acknowledging

that admitting surrogate DNA-analyst testimony violated the Sixth

Amendment Confrontation Clause and the Fourteenth Amendment’s

guarantee of due process, that court should not affirm a conviction on

the rationale that the error was harmless because the case “turned

entirely on the victim’s credibility”—a method of review that (1) conflicts

with this Court’s requirement that harmless-error analysis ask whether

a rational JURY, not an appellate court, could have reached a different

verdict; and (2) is outcome-determinative in this and many similar

prosecutions that rely on forensic certificates.

i

Table Of Contents

QUESTION PRESENTED ........................................................................i

TABLE OF CONTENTS ..........................................................................ii

TABLE OF AUTHORITIES ....................................................................iv

A. CASE CITATIONS ..................................................................iv

B. OTHER AUTHORITIES ........................................................vii

OPINION BELOW ....................................................................................1

JURISDICTION ........................................................................................1

CONSTITUTIONAL PROVISION INVOLVED ......................................1

STATEMENT OF THE CASE ..................................................................2

A. INTRODUCTION .....................................................................2

B. PROCEDURAL HISTORY .......................................................4

C. STATEMENT OF FACTS ........................................................6

REASONS FOR GRANTING THE WRIT .....................................................14

After A State Supreme Court Expressly Acknowledging

That Admitting Surrogate DNA-Analyst Testimony

Violated The Sixth Amendment Confrontation Clause

And The Fourteenth Amendment’s Guarantee Of Due

Process, That Court May Not Affirm A Conviction On

The Rationale That The Error Was Harmless Because

The Case “Turned Entirely On The Victim’s

Credibility”—A Method Of Review That (1) Conflicts

With This Court’s Requirement That Harmless-Error

Analysis Ask Whether A Rational JURY, Not An

Appellate Court, Could Have Reached A Different

Verdict; And (2) Is Outcome-Determinative In This And

Many Similar Prosecutions That Rely On Forensic

Certificates ..........................................................................................14

CONCLUSION .....................................................................................................35

ii

APPENDIX TABLE OF CONTENTS (Separate Volume)

1.

SJC Opinion in Commonwealth v. Nascimento-DePina ................3

2.

Docket (No. 1873CR00436) ..........................................................10

3.

Indictments (No. 18-436) ..............................................................33

4.

Motion To Compel DNA Sample ..................................................43

Affidavit in Support ......................................................................46

5.

Objection to Motion to Compel DNA Sample ..............................47

6.

Objection to Testimony Not Charged ...........................................48

7.

Joint Pre-Trial Memorandum ......................................................49

8.

Motion for Directed Verdict ..........................................................52

9.

Renewed Motion for Directed Verdict ..........................................53

10.

Verdict Slips ..................................................................................54

11.

Notice of Appeal ............................................................................59

12.

Redacted Exhibit 3 (DNA Testing Report 3) ................................60

iii

Table of Authorities

A.

Case Citations

Clark v. Moran,

942 F.2d 24 (1st Cir. 1991) …………………………………………………..17

Clifton v. Massachusetts Bay Transp. Authority,

445 Mass. 611, 839 N.E.2d 314 (2005) ……………………………………..15

Committee for Public Counsel Services v. Attorney General,

480 Mass. 700, 108 N.E.3d 966 (2018) ……………………………………..31

Commonwealth v. Barbosa,

457 Mass. 773, 933 N.E.2d 93 (2010) …………………………………..26, 27

Commonwealth v. Chappell,

473 Mass. 191, 40 N.E.3d 1031 (2015) ………………………………….….26

Commonwealth v. Crayton,

470 Mass. 228, 21 N.E.3d 157 (2014) ……………………………………...33

Commonwealth v. Greineder,

464 Mass. 580, 984 N.E.2d 804 (2013) …………………………………26, 27

Commonwealth v. Jones,

472 Mass. 707, 37 N.E.3d 589 (2015) ……………………………………...27

Commonwealth v. Nardi,

452 Mass. 379, 893 N.E.2d 1221 (2008) ………………………………..….27

Commonwealth v. Mattei,

90 Mass. App. Ct. 577, 62 N.E.3d 86 (2016) ………………………………26

Commonwealth v. McGrail,

80 Mass. App. Ct. 339, 952 N.E.2d 969 (2011) ……………………………26

Commonwealth v. Nascimento-Depina,

496 Mass. 1, 256 N.E.3d 1286 (2025) …………………1, 14, 20, 21, 23, 28

Commonwealth v. Perez,

460 Mass. 683, 954 N.E.2d 1 (2011) …………………………………….….18

iv

Commonwealth v. Sanchez,

476 Mass. 725, 73 N.E.3d 246 (2017) …………………………………...….26

Commonwealth v. Santos,

100 Mass. App. Ct. 1, 173 N.E.3d 776 (2021) ……………………………17

Commonwealth v. Schuchardt,

408 Mass. 347, 557 N.E.2d 1380 (1990) ………………………………….19

Commonwealth v. Scott,

467 Mass. 336, 5 N.E.3d 530 (2014) ………………………………………..31

Commonwealth v. Vasquez,

456 Mass. 350, 923 N.E.2d 524 (2010) …………………………………22, 23

Commonwealth v. Wilson,

94 Mass. App. Ct. 416, 113 N.E.3d 902 (2018) ……………………………22

Crawford v. Washington,

541 U.S. 36 (2004) ……………………………………………………......28, 32

Fahy v. Connecticut,

375 U.S. 85 (1963) …………………………………………………………….16

Furtado v. Bishop,

604 F.2d 80 (1st Cir. 1979) ………………………………………………….24

Grant v. Lewis/Boyle, Inc.,

408 Mass. 269, 557 N.E.2d 1136 (1990) ………………………………..….27

Harrington v. California,

395 U.S. 250 (1969) …………………………………………………………..17

Kelly Realty Co. v. Commonwealth,

3 Mass. App. Ct. 54, 323 N.E.2d 350 (1975) ………………………………27

Lerner v. Casey,

357 U.S. 399 (1958) …………………………………………………………..24

Newman v. Commonwealth of Mass.,

884 F.2d 19 (1st Cir. 1989) …………………………………………………..23

Palko v. Connecticut,

302 U.S. 319 (1937) …………………………………………………………..23

v

Puckett v. United States,

556 U.S. 129 (2009) …………………………………………………..25, 29, 35

Rios v. U.S.,

364 U.S. 233 (1960) …………………………………………………………..24

Smith v. Arizona,

602 U.S. 779 (2024) …………………………………………………..….20, 28

United States v. Andino-Rodríguez,

79 F.4th 7 (1st Cir. 2023) ……………………………………………………..29

United States v. Coker,

433 F.3d 39 (1st Cir. 2005) …………………………………………………..17

United States v. Gentles,

619 F.3d 75 (1st Cir. 2010) …………………………………………………...18

United States v. Malpica-Garcia,

489 F.3d 393 (1st Cir. 2007) ………………………………………………….15

United States v. Marshall,

753 F.3d 341 (1st Cir. 2014) ……………………………………………..21, 23

United States v. Olano,

507 U.S. 725 (1993) …………………………………………………………..29

United States v. Orlandella,

96 F.4th 71(1st Cir. 2024) ……………………………………………….15, 17

United States v. Pena,

24 F.4th 46 (1st Cir. 2022) …………………………………………………....24

United States v. Pizarro,

772 F.3d 284 (1st Cir. 2014) ………………………………………..…….21, 23

United States v. Porter,

764 F.2d 1(1st Cir. 1985) …………………………………………………….16

United States v. Torres-Meléndez,

28 F.4th 339 (1st Cir. 2022) …………………………………………………..15

Williams v. Illinois,

567 U.S. 50 (2012) ……………………………………………………………28

vi

B.

Other Authorities

U.S. Const., Amend 6th………………………………………………...1, 17, 35

U.S. Const., Amend 14th ……………………………………………...2, 23, 35

Fed. R. Evid. 401 …………………………………………………………..….19

Mass. Evid. Guide, § 401 ……………………………………………………19

R. Barnett, The Original Meaning of the 14th Amendment;

Its letter & Spirit, (Harvard Univ. Press 2021) ……………………….…24

vii

OPINION BELOW

The memorandum and order of the Massachusetts Supreme

Judicial Court (SJC) is reported at 496 Mass. 1, 256 N.E.3d 1286 (2025),

and is reproduced in the Appendix.1 [App. 3].

STATEMENT OF JURISDICTION

The order of the Massachusetts Supreme Judicial Court affirming

the petitioner’s conviction entered on May 8, 2025. The petitioner seeks

review of a judgment by the highest State court in which a decision could

be had and invokes this Court’s jurisdiction under 28 U.S.C. 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.”

1 Citations to the appendix will be referred to by “App.” followed by the

page number. Citations to the trial transcripts will be referred to by

volume number, or date of a pretrial hearing, followed by the page

number.

1

The Fourteenth Amendment to the United States Constitution,

Section 1, provides: “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

STATEMENT OF THE CASE

A.

INTRODUCTION

The issues raised are paramount matters for this Court to resolve.

The facts of this case are straightforward;

First, the Commonwealth itself treated the DNA evidence as

central. It subpoenaed Ms. Hart, elicited the statistics that the sperm

fraction was “one in 12.06 decillion,” and argued that the profile

belonged to the defendant. A juror hearing a near-zero random-match

probability naturally regards the science as powerful corroboration.

Stripping the jury of that testimony would thus have altered the

evidentiary balance: without the expert’s statistical anchor the

Commonwealth could offer, at most, an un-contextualised reference to

an unknown stain of unknown probative value. That is precisely why

Crawford v. Washington and, now definitively, Smith v. Arizona forbid

a surrogate from reading a non-testifying analyst’s conclusions.

2

Second, the SJC’s harmless-error calculus relies on its own

assessment that the child’s testimony “bore many indicia of reliability.”

But harmlessness is tested by asking whether a rational jury could have

reached a different verdict absent the improperly admitted proof, not by

appellate judge’s re-credibility determinations. The report and Ms.

Hart’s narration were the only expert evidence of ejaculation—an

element the prosecutor repeatedly referenced. Had the jury heard only

that the child’s DNA was missing from the blanket, yet been deprived of

Ms. Hart’s un-cross-examined claim that the male DNA proved the

defendant

ejaculated,

reasonable

doubt

would

have

loomed

substantially larger.

Third, contrary to the SJC’s suggestion, the confrontation

objection was effectively preserved. Trial counsel moved, before any

witness testified, to preclude substitute-analyst testimony; the judge

acknowledged awareness of the issue; counsel’s further objection would

have

been

futile

under

then-controlling

precedent,

satisfying

Commonwealth v. Vasquez. Even if viewed as unpreserved, the

combination of constitutional magnitude, prosecutorial emphasis, and

the small evidentiary record satisfies the “serious doubt” standard. The

court’s contrary conclusion understates both the gravity and the trial

significance of the confrontation violation.

3

B.

PROCEDURAL HISTORY

On November 29, 2018, a Bristol grand jury returned indictments

charging the defendant, Antonio B. Nascimento-Depina, with two

counts of aggravated rape of a child, with a 10-year age difference in

violation of G.L. c. 265, § 23A; and three counts of indent assault and

battery on a child under 14-years old, in violation of G.L. c. 265, § 13B.

[App. 11, 14, 33-42]. The defendant pled not guilty to all charges on

December 11, 2018. [App. 14].

On July 22, 2019, the Commonwealth filed a motion to compel the

defendant to provide a DNA sample. [App. 17, 43]. The defense filed an

opposition to the motion to compel on August 7, 2019. [App. 17, 47]. That

same day (August 7th), the court (Donatelle, J.), allowed the

Commonwealth’s motion to compel. [App. 17]. Beginning in April of

2021, the parties began filing various pre-trial and in limine motions in

preparation for trial. [App. 22]. On September 10, 2021, the

Commonwealth filed a motion to exclude certain DNA evidence. [R. App.

24]. Pre-trial and in limine motions in preparation for trial were also

filed in August 2022. [App. 28-29]. On August 5, 2022, the court (O’Shea,

J.) denied the Commonwealth’s motion to exclude certain DNA evidence.

[App. 29].

Trial commenced before Judge O’Shea and a jury on August 1,

2022. [App. 13, 29]. On August 8, 2022, at the conclusion of the

4

Commonwealth’s evidence the defense made a motion for a directed

verdict, which the court denied. [App. 29, 52; Tr. 5, 84]. This motion for

a directed verdict was later renewed at the close of all the evidence, and

again denied. [R. App. 29, 53].

On August 9, 2022, the jury found the defendant guilty on all

counts. [App. 30, 54-58]. Judge O’Shea sentenced the defendant on

Count 1 (aggravated rape of a child, 10-year age difference), to 10 to 12

years committed to the Souza Baranowski Correctional Center. As to

Count 2 (aggravated rape of a child, 10-year age difference), the court

sentenced the defendant to a 10 to 12-year prison term, concurrent with

Count 1. As to Count 3 (indecent A&B on a child), the court sentenced

the defendant to a 9½ to 10-year prison term, concurrent with Count 1.

As to Count 4 (indecent A&B on a child), the court sentenced the

defendant to a 9½ to 10-year prison term, concurrent with Count 1. As

to Count 5 (indecent A&B on a child), the court sentenced the defendant

to a 9½ to 10-year prison term, concurrent with Count 1. [App. 31]. The

court also credited the defendant’s sentence 391 days. [App. 31].

The defendant filed a timely notice of appeal on August 9, 2022.

[App. 31, 59]. The case was entered on the docket of the Appeals Court

on September 14, 2023 (2023-P-1061). On September 20, 2024, the SJC

transferred the appeal from the Appeals Court sua sponte (SJC-13664).

The SJC issued its opinion in the case on May 8, 2025.

5

C.

FACTS PRESENTED AT TRIAL

MD,2 was born in early 2006, in Cape Verde to her mother Sophia

(or Ileana) and father Dacu, and was 16 at the time of trial. [Tr. 4, 7576, 79]. MD’s maternal grandfather is the defendant in this case. [Tr. 4,

76]. MD’s mother immigrated to the United States when MD was five

years old, but they would communicate by phone. [Tr. 4, 80]. The child

immigrated to the U.S. when she was 11 years old, and she lived in

Chelsea, with her mom, brother, grandpa (the defendant), and cousins.

[Tr. 4, 79, 82-83, 98]. Her first language is Creole, but she knew a “little

bit” of English from school and watching TV. [Tr. 4, 81, 83]. MD began

sixth grade in Massachusetts. [Tr. 4, 83]. She recalled living in Chelsea

for a year and then the family moved to the Taunton area. [Tr. 4, 83, 95].

In Taunton, she lived with her uncle, mom, brother, and her grandpa

(the defendant). [Tr. 4, 84, 95]. She attended the Taunton schools

beginning in the seventh grade in the spring of 2018, when she was 12

years old. [Tr. 4, 84, 95-96].

MD testified that when she was 11 years old and living with her

grandfather in Chelsea, it was good but then the defendant “started

playing touching private parts,” meaning he “started playing, putting

his hand around [her] chest and trying to touch” her “body parts such as

her “belly,” “breasts,” and her “booty” (or ass). [Tr. 4, 97-98]. MD testified

2 A pseudonym

6

that when they would play, he would use his hand to touch her “private

part” being her “breast,” “belly,” and “part of” her “ass too.” [Tr. 4, 98].

When the family moved from Chelsea to Taunton, this type of

touching happened more. [Tr. 4, 98]. In Taunton the defendant “also

touched [her] breasts and started touching [her] vagina parts and with

his hands,” and would also touch her “ass.” [Tr. 4, 98]. She recalled that

sometimes her mom would be at work so she would have to stay with

the defendant. [Tr. 4, 99]. She believed that sometimes when she was

with the defendant her 7-year-old brother would be present. [Tr. 4, 99100].

Patricia Borja-Lima worked as a social worker for the

Department of Children and Families (DCF). [Tr. 4, 53]. [Tr. 4,]. In May

and early June of 2018, Ms. Borja became involved with the MD’s family

in Taunton, because of a report of physical abuse.3 [Tr. 4, 54-55]. One

reason she was assigned was because she spoke Cape Verdean Creole,

the family’s primarily language. [Tr. 4, 51-52,54-55]. Ms. Borja visited

3 MD testified that she “wasn’t listening to [her] mom,” because she had

thrown a can of under the sofa and her “mom was mad because [she]

wasn’t listening either and she hit [MD] with a belt.” [Tr. 4, 103, 125].

The court was leery to allow the defense to delve too much into the

mother hitting MD, not wanting “to make this a trial within a trial.” [Tr.

4, 48]. Nonetheless, this event seems to have formed the basis for the

defense namely that MD was not credible. As defense counsel stated in

his closing argument, “I suggest it was a little more than not listening.

[MD] was in trouble and when [MD]’s social worker, Patricia Borja-Lima

asked [MD] is anyone touching, she responds Papa touches me.” [Tr. 6,

14].

7

with the family “to make an assessment,” meaning to assess the child’s

living conditions, to make notes of who lives in the home, make contact

with the school, make sure the child is up-to-date medically, and things

of that nature; essentially to determine whether or not the child is safe.

[Tr. 4, 55]. In late May or early June of 2018, MD began to speak with

Ms. Borja. [Tr. 4, 84, 100]. All MD knew about Ms. Borja was that “she

helps with problems,” and spoke to MD in her native language. [Tr. 4,

84-85]. Ms. Borja visited the house on more than one occasion. [Tr. 4,

85].

MD recalled a specific instance in the summer of 2018, when she

and her brother spent time alone with the defendant. She recalled her

brother was playing in the living room and she was with the defendant

in the kitchen cooking. She testified that “he just started doing things

like touching me, my private parts, and then [she] told him to stop but

he continued doing it.” [Tr. 4, 104].

The defendant also touched her in his bedroom. [Tr. 4, 104]. MD

testified that she believed her mom went out with some friends. She and

her brother were again with the defendant. The two children were

watching a cartoon. [Tr. 4, 104]. She believed she was wearing two-piece

pajamas, a shirt and pants. [Tr. 4, 111]. The defendant then asked them

to turn off the TV, and called the two children into his bedroom. [Tr. 4,

104]. Then her brother started crying and the defendant told the boy “to

8

stop crying and that he would hit him.” [Tr. 4, 104]. He began touching

her breasts or chest area. [Tr. 4, 111]. He touched her breasts, and put

his hands under her shirt while she still had it on. [Tr. 4, 112]. She was

standing next to the bed, and he told her to go to the bed. [Tr. 4, 112-14].

The defendant then put MD on his bed, facing the window to the right.

He pulled her pants and underwear down to her knees, and started

putting his penis on her vagina and “he started rubbing it.” [Tr. 4, 10405, 114]. She then testified that he “started spreading [her] ass cheeks

and [her] vagina lips” and he put his fingers “through” her “vagina.” [Tr.

4, 105, 114-15]. MD recalled this hurt. She recalled that he used his

thumbs to hold her “ass cheeks trying to put his penis on [her] vagina

part and he started rubbing it.” [Tr. 4, 105, 115-16]. Then “he went into

[her] butthole.” [Tr. 4, 105, 116]. She recalled that he “tried” to put his

“penis inside” her but after an inch, she “started crying,” and he told her

to stop crying. [Tr. 4, 105]. She then stood up and recalled “white things

started coming out of his penis” and she saw it fall on the blanket and

sheets. He then sent her to her mom’s room. [Tr. 4, 105, 109, 117]. MD

had never seen “white stuff” come out of a penis before and didn’t know

what it was. [Tr. 4, 109, 118]. She recalled the bedroom door was “semiopen,” but mostly closed, and that the defendant had pushed the door

closed. [Tr. 4, 110-11]. This experience made MD feel “weird,” because

she never had experienced that and never thought her “only grandpa”

9

would do that to her. [Tr. 4, 118]. That day, when he was “done,” he told

her “not to tell anybody” then he sent her to her room. [Tr. 4, 119]. MD

also testified that the defendant had a girlfriend. [Tr. 4, 129-30].

Ms. Borja visited MD on August 1, 2018, as part of her

assessment. [Tr. 4, 57, 101]. On that day, MD, her brother, and mother

were present. [Tr. 4, 58]. Ms. Borja asked MD “if everything was all

right.” [Tr. 4, 58-59, 101]. MD recalled that the first person she told

about the experience with the defendant was Ms. Borja, telling her that

her “grandpa was touching” her.4 [Tr. 4, 121-22]. Ms. Borja testified that

MD’s demeanor seemed nervous. MD responded and said in Cape

Verdean Creole, “Papa,” referring to her grandfather, “is touching me.”

[Tr. 4, 59]. This statement was immediately reported to Ms. Borja’s

supervisor, who in turn contacted the Taunton Police. [Tr. 4, 60]. Ms.

Borja remained in the home until the police arrived and translated for

the police. [Tr. 4, 60-61]. Ms. Borja observed that as MD spoke with

police, she “was rubbing her hands together,” and “not making eye

contact,” and “looked very uncomfortable.” [Tr. 4, 61]. She also described

MD as “very withdrawn.” [Tr. 4, 61]. Ms. Borja did meet with the

defendant later in that day. [Tr. 4, 58]. Ms. Borja continued working

4 Ms. Borja testified as the first-complaint witness, and the jury was

instructed on her testimony. [Tr. 4, 49-51].

10

with the family for another month or two, and completed her

assessment. [Tr. 4, 62-63].

Taunton Police Detective Lynn Pina responded to a report that a

child had been sexually assaulted by a family member on August 1,

2018. [Tr. 5, 14-16, 18]. The detective had prior involvement with the

family before, in late May or early June 2018. [Tr. 5, 14, 17]. That

situation involved the mother and the child in the home. [Tr. 5, 15].

Detective Pina arrived first and then another police officer, Detective

Mark Brady arrived. [Tr. 5, 18]. The detective recalled that the mom,

MD, her younger brother, and a DCF social worker were present at the

home when he arrived. [Tr. 5, 18]. He initially, spoke with Ms. Borja

outside and she filled him in on what had happened prior. [Tr. 5, 19].

Detective Pina then spoke with MD to find out what had happened to

her, but she didn’t speak English, so Ms. Borja translated. [Tr. 5, 18-19].

The interview lasted “maybe 15-20 minutes.” [Tr. 5, 20]. The detective

only obtained “minimal-facts” from the initial interview.5 [Tr. 5, 20].

Detective Pina described MD’s demeanor during his interview as being

“quite upset,” and that “she was nervous,” and “actually physically

shaking,” and “crying.” [Tr. 5, 21-22].

5 A forensic interview was performed a few days later at the Children’s

Advocacy Center, where multiple people were able to listen to the

interview. [Tr. 5, 20-21].

11

As Detective Pina was at the home, and after his initial interview

with MD, the defendant came home. [Tr. 5, 22]. During the detective’s

investigation he obtained some basic biographical information about the

defendant; that he was born September 2, 1960. [Tr. 5, 24]. He also

learned that MD was 12 years old on August 1, 2018. [Tr. 5, 24]. Later,

the detective, along with other officers conducted a lawful search of the

home to obtain the sheets off of the defendant’s bed. After seizing that

bedding, it was transported to the crime lab. [Tr. 5, 24]. The detective

also transported to the crime lab, the clothes that MD identified as what

she wore at the time of the assault, which consisted of shorts, a T-shirt,

and underwear. [Tr. 5, 25].

Jessica Hart worked for the of the Crime Lab, in the DNA Unit.

[Tr. 5, 48]. The only item that was found to contain biological materials

was the blanket taken from the defendant’s bed, which tested positive

for blood and seminal fluid enzyme. [Tr. 5, 59-60]. DNA testing in this

case was conducted by Kira Snyder, who by the time of trial had left the

DNA Unit. [Tr. 5, 60]. Ms. Hart worked as her supervisor in the DNA

Unit. [Tr. 5, 60]. Ms. Snyder’s, report tested two swabs and scraping

items and two cutting items. [Tr. 5, 65]. These were the items that tested

positive for both blood and semen or sperm cells. [Tr. 5, 65].

Ms. Snyder testified that the lab had a DNA profile for the

defendant and one for MD. [Tr. 5, 67]. A “swab scrapings of a light brown

12

stain on a blue blanket retrieved from” the defendant’s bedroom

contained the sperm fraction of a male whose DNA profile was

consistent with that of the defendant. [Tr. 5, 67-68]. The expected

frequency of occurrence of the profile is approximately 1 in 12.06

decillion unrelated individuals. [Tr. 5, 68]. That profile was also

compared to MD’s DNA profile and was not consistent with her DNA

profile. [Tr. 5, 68].

A cutting from the same light brown stain on the blue blanket

obtained from the bedroom also generated a profile was a mixture that

included male DNA, assuming three contributors, and that the DNA

profile from the non-sperm fraction was one of those contributors, the

DNA profile from that item was at least 120 nonillion times more likely

if the profile originated from the DNA profile of the non-sperm fraction,

the defendant, and a third unknown individual than originated from the

DNA profile from the non-sperm fraction and two unknown individuals,

unrelated to the defendant. That provides support for an inclusion of his

profile on that questioned item. [Tr. 5, 68].

No DNA from MD was found on the blanket, which defense

counsel called to the jury’s attention in his closing argument. [Tr. 6, 14].

13

REASONS FOR GRANTING THE WRIT

After A State Supreme Court Expressly Acknowledging That

Admitting Surrogate DNA-Analyst Testimony Violated The

Sixth Amendment Confrontation Clause And The Fourteenth

Amendment’s Guarantee Of Due Process, That Court May Not

Affirm A Conviction On The Rationale That The Error Was

Harmless Because The Case “Turned Entirely On The Victim’s

Credibility”—A Method Of Review That (1) Conflicts With This

Court’s Requirement That Harmless-Error Analysis Ask

Whether A Rational JURY, Not An Appellate Court, Could Have

Reached A Different Verdict; And (2) Is Outcome-Determinative

In This And Many Similar Prosecutions That Rely On Forensic

Certificates

The SJC’s opinion concedes that admitting Ms. Hart’s hearsay

narration of Ms. Snyder’s report violated the Sixth Amendment, yet

characterizes the misstep as harmless because “the case turned entirely

on the jury’s assessment of the victim’s credibility.” Commonwealth v.

Nascimento-Depina, 496 Mass. 1, 7, 256 N.E.3d 1286 (2025).

That

framing is inconsistent with both logic and the evidentiary record.

First, the SJC wrote that the “argument was not preserved below”

and right to confrontation may be waived, and, therefore, that court

reviewed to determine whether there was error and, if so, whether it

resulted in a substantial risk of a miscarriage of justice. See

Commonwealth v. Nascimento-Depina, 496 Mass. at 6. However, the

SJC disregarded the fact that this issue was preserved. As is

demonstrated by this record, defense counsel along with the ADA and

judge, discussed the crux of the issue and because the trial judge was

aware of the issue, this Court should view this issue as preserved. See

14

Clifton v. Massachusetts Bay Transp. Authority, 445 Mass. 611, 621, 839

N.E.2d 314 (2005) (issue preserved when judge acknowledged

awareness of issue and expressly noted objection). See also U.S v. TorresMeléndez, 28 F.4th 339, 340 n.2 (1st Cir. 2022) (judge’s comment

adequately preserved the issue; to preserve a claim of error a

defendant’s objection need not be framed with exquisite precision); U.S.

v. Orlandella, 96 F.4th 71, 96 (1st Cir. 2024) (“issues were properly

preserved because ‘the district judge addressed the issue at trial.’”).

Therefore, the appellant deserves the standard of review for a preserved

Confrontation Clause violation, that of de novo review. See U.S. v.

Malpica-Garcia, 489 F.3d 393, 395 (1st Cir. 2007) (court of appeals

reviews a properly preserved constitutional challenge de novo).

This issue is preserved. When it was clear that the Court was

going to allow Ms. Hart to testify, defense counsel sought to introduce

the DNA Testing Report, which caused the ADA to immediately object.

[Tr. 5, 76]. What occurred was an interesting back and forth between

the parties and the court. The ADA correctly pointed out the report was

hearsay. [Tr. 5, 76-77]. Defense counsel countered that it was a business

record. [Tr. 5, 77-78]. The ADA countered saying that the document was

prepared in anticipation of trial. [Tr. 5, 78]. The ADA then correctly

stated, “I’m not trying to be difficult about this point. If I could just put

in a report, I wouldn’t have called the witness.” [Tr. 5, 78]. Defense

15

counsel then stated, “She’s the supervisor of the person that did the

testing. This is a confusing topic and area and this summarized basically

what her test results are. It’s nothing more than a summary.” [Tr. 5, 79].

Defense counsel was stating essentially that Ms. Hart was testifying as

an expert with no personal knowledge of the testing, and was only

testifying based only on reviewed materials of the file of which the report

was an important part. The trial court then picked up on the nuance of

the distinction, commenting, “So what you’re saying, the difference is

because it’s an expert’s opinion as opposed to a layperson’s opinion?” to

which defense counsel affirmed. [Tr. 5, 79]. The ADA then stated that

Ms. Hart was not an expert witness because she had not been qualified

and no expert instruction had been given. [Tr. 5, 79-80]. However, even

the ADA had to admitted that “she is testifying as to subject matter

that’s outside of the (indiscernible) experience (indiscernible) there’s no

question.” [Tr. 5, 80]. The court then allowed the report in over the

objection of the ADA. [Tr. 5, 80].

This issue was thoroughly discussed by the trial court and

attorneys, and the issue is preserved. A constitutional error is harmless

beyond a reasonable doubt when there is no “reasonable possibility that

the evidence complained of might have contributed to the conviction.”

U.S. v. Porter, 764 F.2d 1, 7 (1st Cir. 1985), quoting Fahy v. Connecticut,

375 U.S. 85, 86–87 (1963). In practical terms, however, “courts have

16

found error to be harmless [beyond a reasonable doubt] when the

untainted evidence, standing alone, provided ‘overwhelming evidence’ of

the defendant's guilt.” Clark v. Moran, 942 F.2d 24, 27 (1st Cir. 1991),

quoting Harrington v. California, 395 U.S. 250, 254 (1969). To put it

simply, “there must be ‘no reasonable doubt’ that the jury would have

reached the same verdict without having received the tainted evidence.”

U.S. v. Orlandella, 96 F.4th at 103-04, quoting Clark v. Moran, 942 F.2d

at 27. See also U.S. v. Coker, 433 F.3d 39, 47 (1st Cir. 2005) (“In other

words, [in the context of an alleged Sixth Amendment violation,] the

government would have to prove beyond a reasonable doubt that Coker

would have been convicted even if his confession had not been admitted

into evidence.”).

In this case, the government provided no such overwhelming

evidence of the defendant’s guilt. The Commonwealth only had the

testimony of the alleged victim. While that alone can suffice for a

conviction, see Commonwealth v. Santos, 100 Mass. App. Ct. 1, 3, 173

N.E.3d 776 (2021) (in sexual assault case, victim’s testimony was

“sufficient, standing alone, to support a finding beyond a reasonable

doubt”), such testimony from a young person is usually subject to

heightened scrutiny by a jury who may believe that a young alleged

victim may fabricate testimony. This weakness in the Commonwealth’s

evidence is why it was determined to put into evidence the DNA

17

findings. They government wanted to benefit from what is colloquially

known as the CSI effect, which refers to the phenomenon where the

popularity of crime television shows like CSI: Crime Scene Investigation

influences public perceptions of forensic science, particularly in the

context of criminal trials. It primarily affects jurors, but also sometimes

lawyers, judges, and law enforcement. It creates a real impact on the

defense because if forensic evidence is presented, jurors might give it

undue weight, assuming that it’s infallible—potentially harming the

defense, even when such evidence may be flawed or misinterpreted. See

Commonwealth v. Perez, 460 Mass. 683, 689-90, 954 N.E.2d 1 (2011)

(discussing “CSI effect”); U.S. v. Gentles, 619 F.3d 75, 82-83 (1st Cir.

2010) (discussion of “CSI effect”). Here the government truly benefited

from this allusion to scientific evidence to make a case that is entirely

dependent on the veracity of the alleged victim in this case to one that

seemingly had real scientific evidence showing the defendant was guilty.

Ms. Snyder testified that the lab had a DNA profile for the

defendant and one for MD, the alleged victim. [Tr. 5, 67]. A “swab

scrapings of a light brown stain on a blue blanket retrieved from” the

defendant’s bedroom contained the sperm fraction of a male whose DNA

profile was consistent with that of the defendant. [Tr. 5, 67-68]. The

expected frequency of occurrence of the profile is approximately 1 in

12.06 decillion unrelated individuals. [Tr. 5, 68]. That profile was also

18

compared to MD’s DNA profile and was not consistent with her DNA

profile. [Tr. 5, 68]. This evidence did not really show anything except

that the defendant’s sperm was found on a blanket from his own

bedroom. There was no evidence when the alleged sexual assault

occurred therefore no way to know if the semen stain was from the

alleged encounter or from the defendant sleeping in his own bed. There

was no DNA from the alleged victim on the blanket and it is really

questionable whether this evidence is even relevant. See Commonwealth

v. Schuchardt, 408 Mass. 347, 350, 557 N.E.2d 1380 (1990); Fed. R. Evid.

401; Mass. Evid. Guide, § 401 (“Evidence is relevant if (a) it has any

tendency to make a fact more or less probable than it would be without

the evidence and (b) the fact is of consequence in determining the

action.”). The real concern here is that jurors may have given that

evidence that it was the defendant’s semen on his own blanket undue

weight, and potentially harming the defense, even though that evidence

is clearly flawed and was an invitation to misinterpretation. Do not

lighten the potential impact testimony from the Commonwealth by Mrs.

Hart that it essentially was the defendant’s DNA on the blanket. [Tr. 5,

67-68]. She told the jury that the “expected frequency of occurrence of

the [the defendant’s] profile is approximately 1 in 12.06 decillion

unrelated individuals,” is powerful on the minds of a lay jury. [Tr. 5, 68].

19

And, again, this testimony was deemed erroneous and contra the

defendant’s constitutional rights.

Again, it was the Commonwealth itself that treated the DNA

evidence as central. It subpoenaed Ms. Hart, and elicited the statistics

that the sperm fraction was “one in 12.06 decillion,” and argued that the

profile belonged to the defendant. A juror hearing a near-zero randommatch

probability

naturally

regards

the

science

as

powerful

corroboration. Stripping the jury of that testimony would thus have

altered the evidentiary balance: without the expert’s statistical anchor

the Commonwealth could offer, at most, an uncontextualised reference

to an unknown stain of unknown probative value. That is precisely why

Crawford v. Washington and, now definitively, Smith v. Arizona forbid

a surrogate from reading a nontestifying analyst’s conclusions. This is

also why the SJC held Mrs. Hart’s testimony on direct examination

concerning contents of non-testifying analyst’s report regarding DNA

evidence obtained from bedding was hearsay and that the report was

testimonial, and thus admission of its contents through reviewing

analyst’s hearsay testimony violated the Confrontation Clause. See

Commonwealth v. Nascimento-Depina, 496 Mass. at 6-7 (reviewing

analyst’s testimony on direct examination concerning contents of nontestifying analyst’s report regarding DNA evidence obtained from

bedding was hearsay; report was testimonial, and thus admission of its

20

contents through reviewing analyst's hearsay testimony violated

Confrontation Clause).

The fundamental problem with this case is that SJC essentially

turned the Confrontation Clause violation into a dead letter, meaning a

law, rule, or precedent still formally in effect but no longer valid or

enforced, through standard of review. The SJC held that the

Confrontation Clause violation (admitting the contents of non-testifying

analyst's report regarding DNA evidence obtained from bedding), did

not result in substantial risk of miscarriage of justice, in this prosecution

for aggravated rape of a child and indecent assault and battery on a child

under 14 years old. See Commonwealth v. Nascimento-Depina, 496

Mass. at 7. The SJC reasoned that the case turned entirely on jury’s

assessment of minor victim’s credibility, and that the victim’s testimony

bore many indicia of reliability. See Commonwealth v. NascimentoDepina, 496 Mass. at 7. But the SJC’s harmless-error calculus relies on

its own assessment that the child’s testimony “bore many indicia of

reliability.” But harmlessness is tested by asking whether a rational

jury could have reached a different verdict absent the improperly

admitted proof, not by appellate judge’s re-credibility determinations.

See U.S. v. Pizarro, 772 F.3d 284, 296 (1st Cir. 2014) (reasonable jury

determination); U.S. v. Marshall, 753 F.3d 341, 346 (1st Cir. 2014) (error

was harmless; rational jury would have found guilt absent alleged

21

error). The report and Ms. Hart’s narration were the only expert

evidence of ejaculation—an element the prosecutor repeatedly

referenced. Had the jury heard only that the child’s DNA was missing

from the blanket, yet been deprived of Ms. Hart’s un-cross-examined

claim that the male DNA proved the defendant ejaculated, reasonable

doubt would have loomed substantially larger. This is not a case where

the government can claim the error doesn’t matter because the evidence

was overwhelming. The evidence in this case was only one youth

alleging abuse. Because the jury is there to determine veracity, given

the young age of the alleged victim it is impossible to say with any

reasonableness that the jury would have reached the same conclusion

without the error in this case. The defendant is entailed to a new trial

where the government will not be able to mislead the jury with the DNA

evidence. See Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 417, 113

N.E.3d 902 (2018) (“The required remedy for a confrontation clause

violation is a new trial unless the error was harmless beyond a

reasonable doubt.”), citing Commonwealth v. Vasquez, 456 Mass. 350,

360, 923 N.E.2d 524 (2010). Again, the SJC’s harmlessness review

simply believed the alleged victim, but that is for a new jury to

determine without the error.

The appellant has argued that this issue was fully preserved.

Nonetheless, the SJC chose to review this case through the more

22

stringent standard of review, namely substantial risk of miscarriage of

justice. See Commonwealth v. Nascimento-Depina, 496 Mass. at 7 (DNA

evidence obtained from bedding did not result in substantial risk of

miscarriage of justice). In Massachusetts a substantial risk of a

miscarriage of justice, means reversal is warranted only “if the evidence

and the case as a whole ... [leaves] [the reviewing court] with a serious

doubt that the [defendant’s] guilt [has] been fairly adjudicated [citations

omitted]” Commonwealth v. Vasquez, 456 Mass. at 356 (quotation

omitted). This standard of review is subjective since it relies on the

court’s assessment of witness credibility and not only viewing whether

the error contributed to the jury’s verdict. See U.S. v. Pizarro, 772 F.3d

at 296; U.S. v. Marshall, 753 F.3d at 346. Again, it was the SJC itself

that made the appellate determination that the victim’s testimony

carried the indicia of reliability, not whether the jury could have been

swayed by the DNA evidence. This subjective review is should be

considered a Due Process violation because such subjectivity lends itself

to arbitrary and capricious legal determinations like this one.

The Due Process Clause and “substantive due process protects

individuals against state actions which are “arbitrary and capricious,”

Newman v. Commonwealth of Mass., 884 F.2d 19, 25 (1st Cir. 1989), or

those which run counter to “the concept of ordered liberty,” Palko v.

Connecticut, 302 U.S. 319, 325 (1937), or those which, in context, appear

23

“shocking or violative of universal standards of decency,” Furtado v.

Bishop, 604 F.2d 80, 95 (1st Cir. 1979), cert. denied, 444 U.S. 1035

(1980). See also Rios v. U.S., 364 U.S. 233, 239-40 (1960) (generally the

Due Process Clause is a protection against arbitrary government

action); Lerner v. Casey, 357 U.S. 399, 419 (1958) (Brennan, J.,

dissenting - reviewing court’s duty to secure to the individual the

safeguards, embodied in due process, against a State’s arbitrary exercise

of power); R. Barnett, The Original Meaning of the 14th Amendment; Its

letter & Spirit, p. 289 (Harvard Univ. Press 2021) (the Due Process of

Law Clause is a guarantee against all arbitrary government action).

There really is nothing more arbitrary and capricious that an appellate

court looking at a confrontation error and refusing to reverse and order

a new trial because the reviewing court believed the alleged victim’s

testimony.

Nonetheless, trial counsel did not formally object to the substitute

chemist’s testimony nor discuss the Confrontation Clause issue. Even

viewed under the more stringent standard of review for an unpreserved

constitutional error, the defendant in this case still deserves a new trial.

Where the proceedings violated the defendant’s confrontation rights,

this Court can review for plain error. See U.S. v. Pena, 24 F.4th 46, 67

(1st Cir. 2022) (review of unpreserved constitutional implications is for

plain error). “Plain error” review is four-pronged process, pursuant to

24

which appellate court determines: (1st) whether there was error or

defect, i.e., some sort of deviation from legal rule that was not

intentionally relinquished or abandoned by defendant; (2nd) whether

this legal error is clear or obvious, rather than in reasonable dispute;

(3rd) whether error affects defendant’s substantial rights, which in

ordinary case means that defendant must demonstrate that it affected

outcome of district court proceedings; if above three prongs are satisfied,

then Court of Appeals has discretion to remedy error, discretion which

ought to be exercised only if, (4th) and finally, the error seriously affects

fairness, integrity or public reputation of judicial proceedings. Puckett v.

U.S., 556 U.S. 129, 135 (2009).

To prove its case the prosecution relied principally on the child’s

credibility, and to supplement that testimony, forensic corroboration

through DNA analysis, which can have a very powerful effect on the

juror. Specifically, the prosecution introduced evidence of the

defendant’s semen was on a blanket from his bedroom, which contained

no DNA from MD. [Tr. 5, 72].

The reason these types of cases are frustrating is for the defense

is that the subjectivity of when a substitute analyst is testifying as to

their own opinion versus the original analyst's test results. Again, “[a]n

expert may give opinion testimony based on hearsay when the particular

hearsay would be independently admissible if presented by the ‘right

25

witness’ or with a proper foundation, and if it is the type of evidence on

which experts customarily rely as a basis for opinion testimony.”

Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 343, 952 N.E.2d 969

(2011), citing Commonwealth v. Barbosa, 457 Mass. 773, 784–785, 933

N.E.2d 93 (2010). But this determination can venture into the

subjectivity of what a judge thinks is opinion versus hearsay. See

Commonwealth v. Mattei, 90 Mass. App. Ct. 577, 580, 62 N.E.3d 86

(2016) (expert DNA witness may testify to his or her independent

opinion, even if based on a nontestifying analyst’s test results, without

violating a defendant’s confrontation rights), rev. den. 476 Mass. 1112

(2017), See also Commonwealth v. Sanchez, 476 Mass. 725, 733, 73

N.E.3d 246 (2017) (testimony of DNA unit supervisor at State police

crime laboratory did not violate murder defendant's right to

confrontation); Commonwealth v. Chappell, 473 Mass. 191, 199-202, 40

N.E.3d 1031 (2015) (no confrontation clause violation where testifying

expert independently reviewed raw data and reports produced by

original analyst, made interpretations, and ensured that there was

agreement between her findings and those of original analyst);

Commonwealth v. Greineder, 464 Mass. 580, 595, 601-602, 984 N.E.2d

804 (2013) (no confrontation clause violation where substitute analyst

reviewed nontestifying analyst’s work, including six prepared reports,

and then conducted independent evaluation of data); Commonwealth v.

26

Barbosa, 457 Mass. at 791 (no confrontation clause violation where

substitute analyst conducted full technical review of other analyst’s

DNA reports regarding testing that was performed and results of

testing). “[S]uch testimony is permissible provided that the testifying

analyst ‘reviewed the nontestifying analyst’s work, ... conducted an

independent evaluation of the data,’ and ‘then expressed her own

opinion, and did not merely act as a conduit for the opinions of others.’”

Commonwealth v. Jones, 472 Mass. 707, 715, 37 N.E.3d 589 (2015),

quoting Commonwealth v. Greineder, 464 Mass. at 595.

The rule prohibits an expert from forming an opinion based on

data where such data are not independently admissible in evidence. “[I]t

is settled that an expert witness may not, under the guise of stating the

reasons for his opinion, testify to matters of hearsay in the course of his

direct examination unless such matters are admissible under some

statutory or other recognized exception to the hearsay rule.”

Commonwealth v. Nardi, 452 Mass. 379, 392, 893 N.E.2d 1221 (2008),

quoting Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 273, 557 N.E.2d 1136

(1990), quoting Kelly Realty Co. v. Commonwealth, 3 Mass. App. Ct. 54,

55–56, 323 N.E.2d 350 (1975). See Commonwealth v. Barbosa, 457 Mass.

at 784 (“if a Commonwealth expert on direct examination were to testify

to the conclusion or opinion of a second, nontestifying expert, that

conclusion or opinion would be inadmissible hearsay.”). In reality this

27

Court’s opinion in Williams v. Illinois, 567 U.S. 50, 71-72 (2012)

(plurality), was not a model of clarity, especially when compared to its

earlier landmark opinion in Crawford v. Washington, 541 U.S. 36, 67

(2004). With hindsight, it is clear the minority or dissenters in Williams

were correct in their legal analysis. Without this Courts clarifying

opinion in Smith v. Arizona, 602 U.S. 779 (2024), there is little doubt

this case would likely have been affirmed on appeal with an unpublished

opinion. It is only because of Smith that the SJC took up this case from

the Mass. Appeals Court docket to determine the outcome itself. In

Smith this Court held that if a forensic-testing expert conveys an out-ofcourt statement in support of his opinion, and the statement supports

that opinion only if true, then the statement has been offered for the

truth of what it asserts, as required for the admission of the statement

to be barred by the Confrontation Clause; abrogating Williams v.

Illinois, 567 U.S. 50 (2012). Again, Smith offers clarity as to when a

statement by a substitute analyst is opinion versus improper hearsay.

Even looking at this case under the higher standard of review, the

defendant still deserves a new trial. Most of the arguments in the

Massachusetts appellate courts centered around whether there was

even an error. The SJC settled this using Smith as its guide. It found

that a confrontation error had occurred. See Commonwealth v.

Nascimento-Depina, 496 Mass. at 6-7 (reviewing analyst’s testimony on

28

direct examination concerning contents of non-testifying analyst’s

report regarding DNA evidence obtained from bedding was hearsay;

report was testimonial, and thus admission of its contents through

reviewing analyst's hearsay testimony violated Confrontation Clause).

Under the analysis for an unpreserved constitutional error, the first

prong of the test for a new trial is met. Here there was error or defect,

that was not intentionally relinquished or abandoned by defendant.

The next prong is whether this legal error is clear or obvious,

rather than in reasonable dispute. Again, the SJC settled this when it

found the error. The issue was discussed at length at trial and objections

were made, albeit by the ADA.

The next prong deals with the effects on a defendant’s substantial

rights, which means that defendant must demonstrate that the affected

the outcome of trial court proceedings. This is the prong that

differentiates the harmlessness inquiry under harmless beyond a

reasonable doubt standard as discussed above versus the inquiry of the

effect of the defendant's substantial rights. See U.S. v. AndinoRodríguez, 79 F.4th 7, 21 n.20 (1st Cir. 2023). In other words, the

defendant must demonstrate that it affected outcome of trial court

proceedings. See Puckett v. U.S., 556 U.S. at 135. See also U.S. v. Olano,

507 U.S. 725, 725 (1993) (the plain error must “affec[t] substantial

rights,” which normally means that the error must be prejudicial,

29

affecting the outcome of the district court proceedings.). The appellant

feels this is easy to demonstrate. What this Court should look to is the

un-rebuttable evidence Mrs. Hart put into evidence. Of course, the most

damning evidence was the fact that she testified to the report’s

conclusions that the expected frequency of occurrence of the defendant’s

DNA profile is approximately 1 in 12.06 decillion unrelated individuals.

[Tr. 5, 68]. But look at what defense counsel was not allowed to cross

examine Mrs. Hart on because she did not actually test the sample nor

author the DNA Report. Ms. Hart really was not subject to crossexamination as to how the experiment was conducted. No substantive

question could be put to her as she had no personal knowledge of

anything except what the report outlined. Ms. Hart’s sole knowledge

was based on a review of the lab file and reports. Defense counsel could

not ask if Ms. Snyder tampered with the findings or manipulated the

data. Defense counsel could not ask Ms. Snyder if she had a dislike of

people accused of child rape, or if she doctored the lab results for any

reason or had a predisposition to help the Commonwealth’s case

believing people indicted on child rape charges should just be sent to

prison. The logic behind Ms. Hart’s testimony is that a DNA analyst can

never doctor lab notes and test results. Massachusetts has sad history

concerning overconfidence state employees who are supposed to be

impartial and above reproach, namely cases dealing with Mrs. Annie

30

Dookhan and Mrs. Sonja Farak show that to place such implicit trust in

the state analyst’s ability to just do her job correctly and honestly is

misguided.6 Leaving aside any nefarious practice on the part of Ms.

Snyder, most importantly to this case however is that defense counsel

was not able to ask Ms. Hart if there was any possibility of cross

contamination, because Ms. Hart didn’t test the sample and was not

there when the testing occurred. While Ms. Hart went through the

6 This is a reference to the gravest law enforcement and justice system

scandals in recent history regarding the misconduct of two Mass. State

chemists, Sonja Farak and Annie Dookhan. The magnitude of Dookhan

and Farak’s actions warranted around 44,000 drug convictions that had

to be dismissed due to their misconduct. Mrs. Dookhan pled guilty to 27

charges arising out of the investigation, including one count of perjury,

four counts of witness intimidation, and eight counts of evidence

tampering. See Commonwealth v. Scott, 467 Mass. 336, 337 n.3, 5

N.E.3d 530, 535 n.3 (2014). See also Commonwealth v. Dookhan (Suffolk

County Criminal Docket No. 2012-11155). Shortly after the Dookhan

scandal, further misconduct of evidence tampering was revealed when

officials learned that state chemist Sonja Farak stole drugs submitted

to the lab for testing for her own use, consumed drug that were required

for testing, and manipulated evidence and the lab’s computer system to

conceal her actions. See Committee for Public Counsel Services v.

Attorney General, 480 Mass. 700, 726-27, 108 N.E.3d 966, 987 (2018).

Her conduct has affected thousands of additional cases. There have also

come to light other analysts, who have falsified credentials or have been

caught in other fabrications.

In each of these cases there were charges of government

misconduct at issue also which involved the deceptive withholding of

exculpatory evidence by members of the state Attorney General’s office,

who were duty-bound to investigate and disclose the wrongdoing.

Executive branch functionaries always seem loathed to admit such wideranging lapses, which is always a detriment to the rights of the criminal

defendant. Such functionaries are flawed people, the same as analysts

who work for the state, imperfect and subject to frailties of judgment

and action. This is a main reason the Constitution requires

confrontation.

31

system for keeping track of the samples with a lab number, [Tr. 5, 52],

we cannot know if an error was made through mislabeling or inattention

to detail. Ms. Snyder was the accuser as to the DNA profile. Ms. Hart

did little more that parrot Ms. Snyder’s notes and lab test results.

The jury rendered their verdict without ever having a defense

attorney put Mrs. Hart through the crucible of cross examination. See

Crawford v. Washington, 541 U.S. at 67 (“the Clause’s ultimate goal is

to ensure reliability of evidence, but it is a procedural rather than a

substantive guarantee. It commands, not that evidence be reliable, but

that reliability be assessed in a particular manner: by testing in the

crucible of cross-examination. The Clause thus reflects a judgment, not

only about the desirability of reliable evidence (a point on which there

could be little dissent), but about how reliability can best be

determined.”). Again, there were not real questions the defense could

probe Mrs. Hart as she did not test the DNA sample. For the jury, Mrs.

Hart was a government witness who should have been completely

believable. As stated above, there is real question that the DNA evidence

was even relevant, nonetheless the jury was exposed to the fact that the

defendant’s seamen was on his blanket and he was on trial for sexual

abuse. This would have had real impact on the lay jury petit. In sexual

abuse of a minor case like this, jurors are often looking for reasons to

find the defendant guilty as the sexual abuse of a child is an especially

32

heinous crime in our society and one for which severe penalties are in

place. Here a government witness giving seemingly relevant and

damning DNA evidence against the defendant would have had to play a

role in the jury deliberations. Without Mrs. Hart’s testimony, the jury

was left with only the veracity of the alleged victim in this case. It is by

no means certain that the jury would have found her testimony alone

truthful and convincing beyond a reasonable doubt.

While the SJC credited MD’s testimony, which is odd considering

that the SJC was not at the trial and it is usually from visual contact

with the witness that fact-finders make credibility determinations. See

Commonwealth v. Crayton, 470 Mass. 228, 239, 21 N.E.3d 157 (2014) (a

jury’s collective valuation of the trustworthiness of a witness’s in-court

statements is premised on the ability of the jury to see “indications of

witness certainty or hesitation” and such evaluation includes “facial

expression, voice inflection, and body language,” and to make “other

observations pertinent to assessing the reliability of a person’s

statements.”). The SJC omitted from its analysis that Ms. Borja became

involved with MD’s family in Taunton, because of a report of physical

abuse. [Tr. 4, 54-55]. MD testified that she “wasn’t listening to [her]

mom,” because she had thrown a can of under the sofa and her “mom

was mad because [she] wasn’t listening either and she hit [MD] with a

belt.” [Tr. 4, 103, 125]. The court was leery to allow the defense to delve

33

too much into the mother hitting MD, not wanting “to make this a trial

within a trial.” [Tr. 4, 48]. Nonetheless, this event seems to have formed

the basis for the defense, namely that MD was not credible. As defense

counsel stated in his closing argument, “I suggest it was a little more

than not listening. [MD] was in trouble and when [MD]’s social worker,

Patricia Borja-Lima asked [MD] is anyone touching, she responds Papa

touches me.” [Tr., 6, 14]. A youth like MD could make up a story of sexual

abuse to deflect attention from herself as a wayward youth, or to deflect

from the mother’s possible abuse, maybe thinking that the state could

take MD from her mother. While a child phycologist would have been a

good witness for the defense to explore reasons children lie, nonetheless

there was enough evidence to allow the defense to create a defense

strategy, even if the judge was “leery” of the defense theory. [Tr. 4, 48].

This case came down to the credibility of the only Commonwealth

witness. That is why the government wanted to sway the jury to convict

with questionably relevant DNA evidence. And it seems to have worked.

The SJC believed MD’s testimony, but the real standard is whether the

jury would have reached the same conclusion without the constitutional

error. Given that the defense did have a theory and that people lie even

when under oath like Sonja Farak and Annie Dookhan, it is not

inconceivable that a child could lie under oath also. Where the jury in

this case was to make a pure credibility determination as to MD, Ms.

34

Hart’s testimony must have played a part in the jury deliberations.

Therefore, this Confrontation Clause violation did affected outcome of

trial court proceedings. See Puckett v. U.S., 556 U.S. at 135.

With all four plain-error prongs satisfied, this Court has

discretion to remedy the error, discretion which should to be exercised

where the 4th and final prong is shown, namely that the error seriously

affected the fairness, integrity or public reputation of judicial

proceedings. See Puckett v. U.S., 556 U.S. at 135. Either the

Confrontation Clause is a fundamental right or it is not. In this case

there was a constitutional error. If the standard of review creates vastly

deterrent outcomes for a constitutional violation or if the reviewing

court can simply credit the alleged victim’s testimony without applying

the objective standard as to whether the constitutional error affected the

jury outcome then the Confrontation Clause and Due Process Clause are

merely

dead

letters

and

justice

depends

on

the

subjective

determinations of those government entities who can remain

unaccountable or unreviewable.

Conclusion

The Massachusetts court’s rejection of standards articulated by

the Confrontation Clause and Due Process Clause affected the outcome

of the petitioner’s case and will no doubt continue to affect cases of other

similarly situated defendants in state and federal courts. Where the

35

fundamental rights of countless criminal defendants are at stake and

will continue to be compromised as a result of the confusion on this issue,

the writ should be granted and the case briefed and set down for

argument.

Respectfully submitted,

Antonio B. Nascimento-Depina,

By his attorney,

//S//

Brad P. Bennion

P.O. Box 890118

East Weymouth, Massachusetts 02189

(617) 943-6164

bradpbennion@gmail.com

Counsel of Record for the Petitioner

Dated: July 28, 2025

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