Failure And Failure Of Turn Over Exculpatory Evidence Essay

Failure And Failure Of Turn Over Exculpatory Evidence Essay

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1. FAILURE TO TURN OVER EXCULPATORY EVIDENCE
The first issue is in reference to Marshard’s failure to turn over exculpatory evidence. Several months after the incident, Christine Arenburg, a bartender at the Ritz Café, had a meeting with Marshard in which she allegedly gave Marshard more details than what she originally reported to the police. Arenburg had suggested to Marshard that the Cray brothers were not being truthful in their statements, and attempted to provide more information about the events that occurred that evening. According to Marshard, the information that was provided by Arenburg was not exculpatory, and her statements were all based upon what she “guessed” or “believed” happened, therefore Marshard did not request the presence of an officer or generate any type of report.
Respondent’s answer
Marshard contends that Arenburg was a witness that had been known to the defense counsel, and does not believe that any of the information provided in an affidavit by Arenburg, via the defense, was exculpatory and would have any way prejudiced the defendants had it not been made known. She asserts that Arenburg’s affidavit was essentially based on opinion and things that other people had told her not anything that she saw or heard herself. Marshard cites, Comm v. Almeida, 452 Mass 601, 609-611, 897 NE2d 14, 22-24, as well as Comm. v. Green, 72 MassAppCt 903, 904n3, 890 NE2d 171 (2008), and explains that the SJC has held “unless the undisclosed evidence is significantly destructive of the defendant’s case, or is strongly supportive of innocence, when faced with delayed disclosure, defendant should seek a continuance.” Additionally, Marshard asserts it is “unclear what information the defendants are claiming is exculpa...


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...elt that the Commonwealth was using the 5th Amendment as a “strategic tool” to prevent testimony that would be exculpatory evidence. As Marshard points out Randolph had been named during trial as being involved in the incident. It does appear as if the 5th Amendment may have been a tactic to keep other witnesses from testifying on the defense’s behalf. I think the bigger issue in this part of the complaint is the fact that some of Marshard’s witnesses, as well as the victims were equally involved in the incident, however they were able to testify clearly without the fear of prosecution.

Additionally, Chin recalls a separate incident that he thought may be of concern to the office. As a result of his prosecutorial misconduct finding in the Petersen case, he recused himself from these cases when it became apparent there was once again a potential issue Marshard.

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