The following three arguments have been used to appeal to the Federal Court for a petition of a writ of habeas corpus:
- I. The State Supreme Court's (Mass. SJC) conclusion that the evidence was sufficient to prove Michael O'Laughlin's (Michael) guilt was objectively unreasonable.
- II. The SJC's decision that Michael was not entitled to a hearing on the reliability of the DNA testing contradicted clearly established federal law.
- III. The SJC contradicted clearly established federal law by concluding that the exclusion of a note, which Michael attempted to introduce to establish third-party guilt, did not violate his constitutional right to present a defense.
How did these errors and mistakes occur? How was it that the decision by the SJC (affirming the convictions) was so opposite from the decision by the Appellate Court (overturning the verdict of guilty and the convictions)? First let's look at the amount of time spent by each court in reaching their decision. The Appellate Court took eight months to research just one argument and issue their decision. Contrast this with the barely two months the SJC spent to hand down their decision regarding eight (not one, but eight) arguments. Just how much time did the SJC spend researching and studying the case in such a short period of time? Second lets look at how the decision was reached. The Appellate Court looked at the trial record, both briefs (defendant and Commonwealth), and paid attention to oral arguments. As a result their decision was based on factual information concerning all parties. Contrary to the Appellate Court the SJC it appears could only have based their decision on the Commonwealth's brief alone. Had they looked at the defendant's brief, the trial record and oral arguments they could not have made the mistakes they made in issuing their decision and they probably would have reached a very different decision, a decision much like the Appellate Court's. When looking at the tape of the oral arguments held in front of the SJC one might have assumed the decision would have been in favor of Michael; sadly that did not happen. As a result the next step is to take this case to the federal courts to hopefully correct the mistakes, errors, and harm made by the SJC's decision.
If you'd like to view the oral arguments held in front of the SJC click on link below:
Now let's review the three arguments put forth to the federal court, detailing the errors made by the SJC in reaching their decision:
I. The State Supreme Court's (Mass. SJC) conclusion that the evidence was sufficient to prove Michael's guilt was objectively unreasonable.
Despite the absence of physical evidence, the SJC found that evidence of Michael's guilt included "evidence of motive, opportunity, and means, as well as consciousness guilt." An examination of each of these areas of evidence demonstrates the unreasonableness of the SJC's conclusion, and also that the SJC gave disproportionate weight to these areas of evidence.
The evidence of motive was illogical and had no tendency to create an inference that Michael entered the victim's apartment. The Commomwealth's theory was that Michael entered Ms. Kotowski's apartment in an attempt to find money to buy drugs. But despite all the money and valuables present (including $522 in her bedroom dresser, expensive jewelry on top of her bedroom dresser, and cash in her pocketbook), nothing was missing. In fact, the bedroom did not appear to be disturbed in a manner to suggest that a robbery had occurred.
Additionally, despite the testimony that Michael had financial problems and needed money to buy drugs, the police admitted that when they entered his apartment during the consensual search, they counted a large amount of cash, which included several $50 bills. These facts render the evidence of motive illogical and must not suffice to create an inference that he entered Ms. Kotowski's apartment in an effort to find money.
The SJC explained this as follows: "The fact that nothing was stolen could be explained by the upstairs neighbor's telephone call to the police. The reenactment indicated that the neighbor could be heard in the apartment below. It is reasonable inference that Michael was frightened off before he could steal anything when he heard the neighbor speaking."
But the reenactment failed to demonstrate that a person could distinguish any words spoke by the upstairs neighbor, although a voice could be heard. It was thus not a fair inference that the assailant fled because he heard the neighbor call the police.
With respect to opportunity, the SJC cites Michael's possession of a master key. But there was evidence at trial that additional individuals possessed master keys, and therefore also had the same means of entry. Furthermore, Ms. Kotowski could have allowed the perpetrator entry if she was familiar with the individual.
The SJC found that the aluminum bat was found a "short distance" from the victim's apartment. But the bat was actually found in a wooded area 25 yards from the dumpster in front of the building. There was no evidence that it was hidden there. But more important, the bat failed to connect Michael to the scene. Seriously compromised DNA testing merely suggested the possibility that one in two people could have contributed to the sample from the tape (on the handle of the bat). In other words, the evidence suggested that half the people on earth might have been contributors to the DNA--hardly the type of conclusive DNA evidence that has commonly been used for identification. Additionally, the DNA expert testified that she did not even detect the presence of blood on the sample she examined, further leaving open the question of whether this was truly the weapon.
The SJC also cited several examples of consciousness of guilt to support its conclusion that the evidence was sufficient. In relying so heavily on consciousness of guilt, the SJC failed to give "appropriate weight" to all the exculpatory evidence (i.e., absence of physical evidence), further demonstrating that its affirmance was objectively unreasonable.
Also, a close examination of the "consciousness of guilt evidence" reveals that it was not as accurate or as compelling as portrayed. For example, the SJC stated "when the police first arrived at the apartment complex they encountered Michael walking outside clothed only in his boxer shorts in near freezing temperature."
But to be accurate, the trial record reveals that when the police first arrived, there was no one outside and they heard nothing as they went from apartment to apartment listening for noise. A few minutes later, the officers encountered Michael on the walkway coming from his apartment. They had first reported that when they first saw him, he was exiting his apartment and they believed he was the reporting party. When asked if he heard screaming, Michael replied that he thought he heard animals fighting in the dumpster, so he went outside to investigate.
The trial record supports Michael's explanation. The maintenance manager (a Commonwealth witness) testified that there had been problems with raccoons getting trapped in the dumpster. Michael told the police that animals were getting into the dumpster, and he had placed a stick there so they could get out. Michael's statement was verified when Officer Tierney checked the dumpster and found the stick.
The SJC also found that Michael lied to the police officers by giving different versions of how he was awakened. This is also not a fair inference from the evidence. Michael gave two statements to the police, one to Trooper Buell, and one to Lee Police Chief Glidden. In both statements, Michael said he was awakened by sounds that he believed were animals fighting in the dumpster. It is therefore not a fair inference that he lied to the police by giving different versions of how he was awakened, thereby creating an inference that he perpetrated the offense.
Several of the other examples of consciousness of guilt cited by the SJC gave unfair weight to the Commonwealth's theory of evidence. For example, evidence that Michael was "uneasy and distant" at 2 a.m., after having just woke up, is not compelling consciousness of guilt evidence. Nor was the fact that he was "reluctant" to be interviewed by the police, when in fact he went to the police station and submitted to questioning (without a lawyer present).
Another example cited by the SJC as consciousness of guilt is that when Michael's neighbor knocked on his door that morning and told him that she believed someone had been murdered, he said "what do you want me to do about it." In fact, Michael immediately got dressed and they went outside to investigate. This does not indicate culpability and doesn't show lack of concern for the victim when told about the assault.
The SJC cited Michael's removal of the stain from the door as the most significant example of consciousness of guilt. But once tested, this stain matched Michael's DNA, and had no connection to the crime scene.
The SJC found inferences that Michael received injuries during a physical encounter with the victim. Although Officer Tierney testified that he observed a scratch on Michael's left check, a cut on his chin, and a bruise on his neck, he could not be certain if the injuries were fresh. And the other officers made no such observation; Officer Buell merely observed a small circular mark, and Officer Hill admitted it might have been just a blemish. Michael consistently answered that it was a pimple. His ex-wife, a Commonwealth witness, testified that on the day prior to the assault she has seen a blemish on his face that she believed was infected.
The SJC found that "Michael was found, in the immediate aftermath of the crime, walking outside in the cold clad only in his underwear would be consistent with his having disposed of bloody outer garments." This is not a reasonable inference from the evidence. First, the record is clear that the police encountered him walking from his apartment to speak with them. Both officers had earlier reported that when they first saw him, he was exiting his apartment. Second, after an extensive search of the entire property including Michael's apartment, investigators never found any bloody garments. Third, it was not necessarily suspicious for Michael to be clad in underwear, if he had just woken up at 2:00 a.m. and went outside to investigate a noise.
In summary, a constitutional violation occurred here because upon the recorded evidence, no rational trier of fact could have found proof beyond a reasonable doubt. Guilt beyond a reasonable doubt cannot be premised on pure conjecture.
The SJC determined that "although the question is a close one" there was sufficient evidence to support the verdicts. But a close examination of the trial record establishes that the SJC failed to give appropriate weight to all the evidence, and that the decision was objectively unreasonable.
II, The SJC's decision that Michael was not entitled to a hearing on the reliability of the DNA testing contradicted clearly established federal law.
The SJC ruled that Michael was not entitled to a Daubert/Lanigan hearing. The SJC ruled that the "affidavit contested only the laboratory's threshold levels for reportable results, a matter for cross-examination. It did not allege that the process was invalid." This conclusion was contrary to clearly established federal law, because under Daubert, the defendant is entitled to a preliminary hearing where he challenges the reliability of the testing as well as the validity.
At the pretrial hearing, and through the material submitted to the trial judge, Michael established the necessity for the hearing. Michael's affidavit provided the following information:
The state crime lab identified stains on the baseball bat. The lab took three swabs from the barrel of the bat and submitted them for testing. The lab performed the testing, but due to a contaminated reagent, the lab discarded the test results and did not obtain any valid results. The police later identified an additional stain on the tape of the bat handle, which had been missed during the initial inspection. The police resubmitted the bat to the lab for further testing. The lab obtained a result at only one of the nine DNA loci tested. The defendant and the victim could not be excluded as the contributors of the DNA. The probability of a randomly selected unrelated individual having a DNA profile matching the sample from the bat was approximately one in two Caucasians.
Michael also filed an affidavit of his own DNA expert, Dr. William Shields. Dr Shields reported:
". . .there are also alleles present below their reporting standards that could not have come from either the victim or the suspect. This implies the possibility that some combination of alleles from the people contributing to the mixture observed in the evidence could result in a full exclusion of either the suspect or the victim. The only way one could rule this out is if the testing produced results that were sufficiently reliable that one could be certain that they had observed all the alleles and only the alleles deposited in the biological sample, and knew which alleles came from which individuals."
Dr. Shields further reported:
". . .I disagree that the threshold RFU of 75 used by the Massachusetts State Police Crime Lab (their protocol) is high enough to ensure that the results in this instance are reliable. In contrast to their declared threshold other competent forensic laboratories require rfu's >150, the manufacturer's recommended threshold, or even 200 rfu's, before declaring inclusions (FBI Lab). I agree with the later that the problems associated with small degraded samples that give rise to low RFU results are such that they risk producing severely compromised results that could give rise to numerous errors."
Michael therefore provided substantial, credible information that the Commonwealth's testing procedures were unreliable. There was a possibility that due to the state lab's low reporting standards (75 rfu's where the FBI uses 200 rfu's), there were alleles present that could not have derived from the victim or the defendant. The report states that the testing methods employed by the Commonwealth did not suffice to rule out the possibility that both the victim and defendant could be excluded from the DNA on the tape from the bat handle. The "RFU" threshold employed by the Commonwealth's testing was too low to ensure reliable results.
The trial evidence further demonstrates the unreliability of the testing process: The first round of testing had no results due to a contaminant. The second testing also received no results. The third testing had a result but it was not a full profile. It was for only one DNA site. The analyst didn't know from what substance the DNA had derived.
In Daubert, the United States Supreme Court focused upon the admissibility of scientific expert testimony. The Court ruled that such testimony is admissible only if it is both relevant and reliable. The Court also discussed certain more specific factors, such as testing, peer review, error rates, and "acceptability" in the relevant scientific community, some or all of which might prove helpful in determining the reliability of a particular scientific "theory or technique."
The ruling in Daubert requires the judge to rule on any challenge to the validity of any process underlying a proffered opinion before the evidence reaches the jury. This requires a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. This is the trail judge's gatekeeper function.
The Daubert hearing is required when the defendant raises a substantial issue regarding the reliability of the scientific testing. By denying Michael's request for the hearing, the trial judge did not fulfill his obligatory gatekeeper role. The judge sent unreliable scientific evidence to the jury without the required preliminary assessment mandated by Daubert. The SJC decision thus was clearly contrary to established federal law.
The admission of the DNA evidence amounted to prejudicial error. Several factors demonstrate that the prejudicial effect of the DNA evidence outweighed the minimal probative value. The DNA extracted from the tape of the baseball bat was tested for fourteen different loci, and the test revealed only a reportable result at one site. Due to the mixture of DNA at the one site, the test revealed that there was more than one individual. The likelihood that any individual contributed to the mixture was one in two.
The probative value of these results was minimal--every other person on earth could have contributed to the inconclusive DNA obtained at the one site. Aside from this near valueless statistic, when one also considers the contamination involved, and the unreliability of the testing process as detailed above, this nugatory evidence should never had reached the jury.
The error in admitting this evidence was not harmless. The evidence derived from the tape on the baseball bat, which the Commonwealth alleged was the assault weapon. It was the most crucial piece of evidence in the case. The Commonwealth's medical witness testified that it was consistent with the object that caused the injuries. The evidence was circumstantial that without the bat, there certainly would not have been sufficient evidence to support the jury's verdict. The DNA evidence therefore could not have had slight effect on the jury, and must have played heavily into their verdict.
The SJC's summary conclusion that the DNA evidence from the tape of the bat was more probative then prejudicial contradicts well-established federal law. Indeed, the trial court should not have admitted the DNA evidence, since, at best, the chance that the DNA on the bat was Michael's was an astronomically low one in approximately two and a half billion.
The SJC's decision on this issue was therefore contrary to clearly established federal law.
III. The SJC contradicted clearly established federal law by concluding that the exclusion of a note, which Michael attempted to introduce to establish third-party guilt, did not violate his constitutional right to present a defense.
Michael offered to introduce a note found in the victim's bedroom. The trial judge's exclusion of the note violated Michael's constitutional right to present a defense under the Sixth Amendment and Fourteen Amendments to the United States Constitution.
The defense relied on the theory that the victim's estranged husband may have committed the assault. Michael presented evidence that Mr. Kotowski was angry at his wife for seeing another man (James Finn), and had yelled and berated her. She moved out, an act which "crushed" him, and she discussed divorcing him a week prior to the assault. There was evidence concerning bleach-smelling towels in his car and wooden baseball bats in his garage.
On the evening after the assault, the husband was at Ms. Kotowski's bedside, and admitted to the officer nearby that he was afraid she would wake up and believe he committed the attack. This is to be contrasted with Michael's statement that he was glad the victim survived because it meant she could identify her assailant.
The excluded note that Michael sought to admit reads: "Threat to kill him if seen in public. . suck on his dick, blow him. . .fuck him [sic] a whore." The inference behind the note is that Ms. Kotowski wrote down what he said to her with regard to her relationship with James Finn, primarily "threat to kill him. . ." The note was relevant because (1) it contradicted their testimony that their relationship was not hostile, and (2) it tended to show that the husband harbored homicidal ideas. These inferences raise reasonable doubt that Michael was the assailant.
It was especially important for Michael to present evidence that a third party had motive for the assault, where the Commonwealth's theory of motive was illogical.
In its decision, the SJC agreed with Michael's argument "that expert analysis of the hand writing on the note is not necessary and that comparison to a genuine specimen by the trier of fact is accepted practice in Massachusetts.
But the SJC also agreed with the trial court's ruling that the note should be excluded because it was ambiguous. "Even if we assume that the victim wrote the note, there is no evidence who the speaker was and who was the subject of the speaker's venom. There was no evidence to connect the note to the victim's husband or to establish who was the object of the threat. Had the note been admitted, it would have required the jury to speculate as to its meaning and genesis."
The jury could have reasonably inferred that Ms. Kotowski wrote down words that another person said to her. That person, whoever it was, could not have been Michael (she never testified that Michael said this to her, and she had no personal relationship with him). Furthermore, no one but the estranged husband would care about the sexual activity referred to on the note. The exclusion of this note from the jury's consideration completely removed this compelling evidence that a third party harbored violent ideas, in violation of Michael's constitutional right to present a defense.
The SJC's decision that the admission of the note required speculation was disproportionate to Michael's weighty interest in presenting that evidence to the jury.
In Holmes v. South Carolina, the United States Supreme Court held that the exclusion of defense evidence of third-party guilt denied the defendant a fair trial. The Court held that a criminal defendant's federal constitutional rights were violated by an evidence rule under which the defendant may not introduce evidence of third-part guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.
In following the reasoning in Holmes the SJC denied Michael his federal constitutional right to present evidence of third-party guilt. The SJC's decision that admission of the note required the jury to "speculate" as to its "meaning and genesis" infringed upon Michael's weighty interest in presenting the evidence. The result was that Michael could not present compelling evidence of third-party guilt.
The SJC's decision was therefore an unreasonable application of clearly established federal law.
