As a result of Dr. Laposata and Dr. Squier’s findings, we contacted the CPCS Innocence Program. After a cursory review of the new evidence, the director assigned an attorney for screening, Attorney Donald A. Harwood. After speaking with Dr. Laposata and Dr. Squier and reviewing their findings, Attorney Harwood recommended Brian’s case for acceptance. As a result, the Director determined that Brian did meet the criteria of the innocence program by being a wrongly convicted person. Brian’s case was accepted by the program. On October 25, 2011, Attorney Harwood was assigned to file a Motion for New trial on Brian’s behalf.
Attorney Harwood filed a Motion for New Trial on July 3, 2012, to the same Bristol County Superior Court Judge that presided over Brian’s trial, Judge Charles J. Hely. The motion argued that Brian was denied effective assistance of counsel because:
- His trial attorney did not object to a courtroom closure; and
- His trial attorney failed to investigate and present an essential defense establishing Brian’s innocence.
In support thereof, an Affidavit from Dr. Laposata was submitted with the motion. See Affidavit of Dr. Michael Laposata Prior to the decision an Affidavit from Dr. Squier was also submitted. See Affidavit of Dr. Waney Squier Both affidavits, amongst other things, stated:
- Christopher’s injuries were consistent with his fall down the stairs resulting in a slow brain bleed.
- His symptoms were consistent with a progressive subdural hematoma, resulting in death.
- The opinions that the injuries were not survivable were incorrect.
- In their (Dr. Laposata and Dr. Squier) professional opinions, Christopher died as a result of (untreated) injuries he sustained in the stairway fall ten days earlier.
The trial judge quickly denied the Motion for New Trial without a hearing, or without hearing any testimony from Drs. Laposata or Squier. Judge Hely ruled that the affidavits from Dr. Laposata and Dr. Squier did not present a substantial ground of defense or a substantial risk of a miscarriage of justice, nor was Brian deprived of the effective assistance of counsel.
Subsequently, on January 26, 2013, Attorney Harwood filed a “Gatekeeper” petition to the single justice of the Supreme Judicial Court (SJC), pursuant to MGL Ch. 278, §33E, for leave to appeal to the full panel of the SJC. See Gatekeeper Petition 2013 and Reply memo 6/18/13 However, the single justice denied Brian’s petition on procedure. Associate Justice Fernande R.V. Duffly, in her decision explained that in Massachusetts, once a defendant has had a direct appeal to the SJC, he must overcome a “significant hurdle” to be heard again. The single justice must determine whether the issues now raised by the defendant are “new and substantial.” This hurdle is in place to “assure that limited judicial resources are not consumed by claims that should have been raised earlier.” In Brian’s case, the justice ruled that this new medical evidence based on Dr. Laposata and Dr. Squier was neither new nor substantial and should have been raised at Brian’s first SJC direct appeal. As a result, the justice denied Brian’s petition on August 26, 2013. See Decision 2013
Due to the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and technicalities of law, Brian is time barred from raising these new issues through a federal habeas corpus appeal. See Appeals Process
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