Free Michael Now!
Help Free a Man Wrongfully Convicted and Imprisoned
“The Bloody Handprint”
Prosecutorial Misconduct

In his closing argument to the jury, the prosecutor, David Capeless, said “And then he (Michael O’Laughlin) does one other thing. As you heard from that evidence, lying there curled, with her hands like this he took that pillow and with his right hand pushed it down on top of her (Annemarie Kowtoski) the final thing that was done. And when all those sounds were over, when she lay muffled underneath that pillow. . .” There’s only one thing wrong with that statement—it wasn’t true! There was absolutely NO evidence introduced during trial that showed Michael O’Laughlin took that pillow and with his right hand pushed it down on top of her. There was plenty of inference made by the prosecutor during trial that the handprint on the pillow case was Michael O’Laughlin’s but the prosecutor never came out in trial and said it was Michael’s handprint. Did the prosecutor know that handprint on the pillow was not Michael’s? If he did know the handprint was Michael’s why didn’t he state it as evidence during the trial? He certainly inferred it was Michael’s handprint. Did he want the jury to believe it was Michael’s handprint? Why did he wait until closing argument to say “he took that pillow and with his right hand pushed it down on top of her?” Why didn’t Michael’s defense lawyers ask in trial if the bloody handprint was Michael’s? Technically they didn’t have to because it was never said in trial during the time evidence was being introduced that it was Michael’s handprint. Why during the closing argument, when the prosecutor made this wrongful statement, didn’t Michael’s defense lawyer object to this statement? He didn’t object because he didn’t hear the statement. Michael’s Mother didn’t hear that statement. They didn’t hear that statement because the prosecutor was practically whispering to the jury. Only Michael heard that statement and fortunately Michael heard correctly because that statement appeared in the trial transcripts. The legal community would refer to the prosecutor’s actions as prosecutorial misconduct. In layman terms that is considered a lie.

If that statement by the prosecutor was meant to be true then the person that took that pillow and with his right hand pushed it down on top of her was the person that committed this crime. If that handprint was not Michael’s, then whose was it? Is the right handprint on that pillow the real person that committed this crime? Who is this person? Is he still walking around the streets of the Berkshires a free man, while Michael O’Laughlin is spending time in prison for a crime he didn’t commit?

Why could this one statement by the prosecutor have such an impact on the jury’s decision to convict Michael O’Laughlin? Because the prosecutor knew his case was totally circumstantial (no physical evidence tying Michael O’Laughlin to this crime) he had to make inferences based on speculation. Since there was no evidence supporting the statement that Michael O’Laughlin took that pillow and with his right hand pushed it down on top of her, the prosecutor had to make inferences to the jury that it could have been Michael O’Laughlin that took that pillow and pushed it down on top of her. Let’s review how the prosecutor put these inferences together to mislead the jury into thinking that bloody handprint was Michael O’Laughlin’s. Everything that follows comes directly from the trial transcripts (will be in the format of volume #-page #; line #’s).

On the 2nd day of trial the prosecutor called Kevin Palmer (EMT) who was the second person to arrive on the crime scene. The prosecutor asks Mr. Palmer what he saw Charles Spirydowki the first EMT who responded to the scene, doing (2-176; 19-23):

Then the prosecutor asked Mr. Palmer a series of questions concerning the pillow (2-177; 3-8):

The questioning to Mr. Palmer might indicate the prosecution is concerned about the pillow and considers it important.
The next witness called by the prosecution to testify is Lee Police Officer William Tierney. The prosecution wants to know from Officer Tierney what items were seized as evidence by him (2-199; 5-12):

The questioning of the next witness Lee Police Officer Phillip Skowron (he and EMT Charles Spirydowki were the first to respond to the crime scene) follows up on the pillow (2-249; 18-23 and 2-250; 1-2).

On the 3rd day the prosecutor begins to show Officer Skowron specific photo’s of the pillow case and gets into details of what he (Skowron) observed about the blood patterns on the pillow (3-26; 1-9).

Another picture (Exhibit 26 was being shown to each jury member as this line of questioning was being conducted) is of the pillow with the blood stain (Exhibit 26) (3-27; 1-17).

Day 4 and Mass. State Police Lt. Brian O’Hara is on the stand being questioned by the prosecutor (4-263; 14-15).

After many pages of testimony regarding the pillow and pillow case, there was an objection by Mr. Skinner (one of Michael’s defense lawyers) regarding the prosecutor’s line of questioning pertaining to Lt. O’Hara’s expertise of what he saw on the pillow case.  Questioning continues after a sidebar conversation with the judge (4-272; 12-23).

The jurors are looking at a 2’ X 3’ photo and the judge says to make sure they (jury) know what Lt. O’Hara is talking about (Exhibit 54, 55) (4-276; 18-23).

Why wasn’t there an objection to Lt. O’Hara being able to walk back and forth in front of the jurors holding a 2’ X 3’ photo and pointing out the blood stain of the hand print? Then Lt. O’Hara starts to explain with a ruler in the picture what he believes to be the size of a man’s right hand. The prosecutor and Lt. O’Hara discuss how the hand is positioned in the picture. This whole process was very time consuming and had the jurors captivated by the hand print in the picture (4-277-1-23).
The prosecutor then introduces a “close up view” of just the hand print and asks Lt. O’Hara the following question (4-278; 1-23).

Lt. O’Hara continues walking back and forth in front of the jury’s bench now holding a blowup 2’ X 3’ close-up view (exhibit 56) and is told to explain in detail the entire specifics of the handprint in the picture (4-279; 1-15).
Now comes the interesting part. Instead of the jury hearing whose handprint and why it must be Michael O’Laughlin’s handprint the prosecutor completely changes the subject focusing on a fingerprint analysis and then says “No further questions your honor.” He never asks the question of Lt. O’Hara if that handprint was Michael O’Laughlin’s. Why not? What did the prosecutor know? Was he afraid of the answer? Was it enough for the prosecutor to just infer that the handprint was Michael’s?
Now let’s side step for a moment and focus on the cross examination of Chemist Edward Bernstine on Day 7 by Michael’s lawyer (7-149; 2-8 & 7-150-1-8).

There was no visual indication of stains on Michael’s right hand. If Michael was the person that left the handprint on the pillow how was it that the Michael’s right hand tested negative for occult blood.
On Day 8 Dt. Lt. Richard Smith, the lead detective on the case is being questioned by the prosecutor about the pillow.

The prosecutor then reintroduces both sides of the enlarged photographs of the pillow case (exhibits 54 and 55). The prosecutor then asks Lt. Smith to hold up Exhibit 54, the 2’ X 3’ photo, and show the members of the jury the stain which is the right handprint (8-81; 10-15).

What the prosecutor is trying to show by this line of questioning is that on one side of the pillow case (exhibit 54) is the bloody handprint and the other side of the pillow (exhibit 55) is a silhouette of the victim’s head, neck and shoulders. At this point Michael’s lawyer objects to this line of questioning. But is this objection too late? Has the prosecutor already got the point across he wants to make to the jury?

During a sidebar the following conversation takes place (8-83; 12-19):

It is becoming very clear how important the pillow case and the handprint on the pillow case are to the prosecutor’s case. This was demonstrated by the blowing up of the photograph to a one to one enlargement; the lamination of the photo; and bringing in an easel to put in front of the jury while he questions Lt. Smith.

After conclusion of the sidebar conversation the prosecution continues his questioning of Lt. Smith (8-86; 6-22).

This photo the prosecutor and Lt. Smith are talking about becomes Exhibit 82. After the sidebar conferences regarding this pillow case and all the phrases that had to be stricken from the record this photo sits on an easel right in front of the jury.

Lt. Smith tries to make one last comment to remind the jury what he is tracing (8-87; 9-18).

At the conclusion of the Commonwealth’s case Michael’s lawyer files a motion for a required finding of not guilty. He states there is insufficient evidence on the element of a break-in. Using the Lattamore standard he states there isn’t any evidence that any rational fact-finder could beyond a reasonable doubt in the light most favorable to the Commonwealth that there was a break-in. After the Commonwealth responds to this motion the judge states: “And plus there’s evidence of the blood on the pillow and so which at least the jury could infer that the beating started when she (victim) was in bed. (8-89; 12-26 – 8-102; 1-16). The judge dismissed the motion. Sure seems like the judge felt the inference the prosecutor presented about the bloody pillow and pillow case during evidence was important to the jury.

Everything presented by the prosecution and defense during trial is considered evidence. Opening and closing statements are not considered evidence and should not be construed as evidence. It is very important for prosecutors (and defense consul) to be careful what they tell the jury in opening and closing statements because it could influence the jury’s decision for the verdict. Closing statements must be based on fact and refer to evidence that was heard during trial. That is why the following statement made by the prosecutor is considered very harmful and may have played a significant role in influencing the verdict rendered by the jury.

That statement was palpable error. It was palpable error because there was absolutely NO evidence introduced during trial that stated Michael O’Laughlin was the person that took that pillow and pushed it down on top of the victim. There was NO evidence produced or stated that ever said the handprint on the pillow case was Michael O’Laughlin’s. There was much inference made that it was Michael’s handprint but NO proof or statement that it was Michael’s handprint.

So what could the jury conclude from the prosecutor’s statement? They could conclude that they didn’t remember him (prosecutor) say during trial it was Michael O’Laughlin’s handprint on the pillow case and disregard the statement. OR they could conclude to believe the District Attorney for the Commonwealth of Massachusetts is telling the truth, and that it was Michael O’Laughlin that took that pillow and pushed it down on top of the victim. For the jurors to not believe the prosecutor’s statement would mean they believed he lied. How many jurors believe prosecutors lie?

To recap let’s look at sixteen questions (16) relative to the pillow, the pillow case and the bloody handprint:

And finally one last question. Does the following sound like a statement from someone (prosecutor) who is sure he is convicting the right man?

Opening statement to the jury
    A.D.A. David Capeless
(2-44; 1-6)

In conclusion Michael O’Laughlin would very much like his handprint compared to the handprint in the photos the prosecution exhibited at his trial (something that should have been done by defense consul before trial). Michael is extremely confident in what the results will show. He’s confident because he knows the bloody handprint on that pillow case is not his.

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