Judge Borenstein's decision-- Part VIII

Totality of All the Circumstances Another Ground for New Trial.

12 Jun 98

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This Court finds and rules that the newly discovered evidence alone entitles the defendant to a new trial. A close examination of the entire record shows that other errors and questionably admitted evidence, even if when considered individually are not sufficient to allow a new trial, in combination they clearly rise to a substantial risk of a miscarriage of justice. Commonwealth v. Cancel, 394 Mass. 567, 576 (1985).

The Supreme Judicial Court has found that the seating arrangements of the child witnesses at trial was a violation of the defendant's constitutional right to confront her accusers face-to-face under Art. XII of the Massachusetts Declaration of Rights. Commonwealth v. Amirault, 424 Mass. 618, 632 (1997). The impact of such a serious constitutional violation cannot be underestimated. In this case it served to seriously impede this defendant's ability to test the reliability of the testimony of the child witnesses, which this Court has found is unreliable and admitted in violation of her due process rights.

This Court is fully cognizant of the Supreme Judicial Court's ruling that Postal Inspector John Dunn's testimony was not error. However, in conjunction with the other errors, the testimony is more troubling. In particular, this Court believes that there is a substantial likelihood that if the newly discovered evidence had been available at trial, the child witnesses' testimony would not have been allowed, thereby

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rendering Dunn's evidence more prejudicial than probative and it would have been excluded.

Compounding the above - cited problems at the defendant's trial, last year, this Court also found that the defendant's attorneys were ineffective in failing to argue the confrontation issue on her direct appeal, depriving her of right to counsel and due process.

Finally, and equally important, is that the evidence in this case is not overwhelmingly one-sided. Commonwealth v. Amirault, 424 Mass. 618, 650 (1997). This weak evidence, in combination with and reinforced by constitutional errors and questionable evidence, together with the strength of the newly discovered evidence, casts very serious doubt on the result of this trial. On the whole, I am left with the utmost conviction that all these errors and issues have resulted in a substantial miscarriage of justice.

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For the foregoing reasons, the Court Orders the Defendant's Motion for a New Trial be Allowed.

Dated: 6/12/98

[June 12, 1998]

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