Marie Russell - Voir Dire

MR. ALESSI: Attorney Brennan, just with regard to Dr. Russell — in open court in front of the jury — used the concept of DNA in this case. He has introduced it and brought it in for the very first time in front of the jury. He has done so intentionally. He intentionally brought up DNA. Based upon that intentional mention, the defense moves strongly, vigorously for a mistrial with prejudice. A mistrial with prejudice. There has been no mention in this trial of DNA with regard to this topic. With regard to what Mr. Brennan has raised, there has been none. Specifically, the prosecution had in the first trial a witness, Teri, with regard to DNA. For whatever reason, the prosecution has chosen not to bring that witness in, who would testify perhaps to DNA.

MR. ALESSI: As a result of that strategic decision that the prosecution made, there's been no mention. I want to be very clear. The defense has been incredibly assiduous and meticulous about not mentioning DNA in any fashion, directly or indirectly, with regard to the hoodie, shirt, and the hole. The only thing that was adduced in direct examination was a mechanical function — simply Dr. Russell testifying that a dog tooth went in and came out and caused a certain mechanical effect on the yarn — nothing even close to the mention of DNA. With regard to representations that attorney Brennan has made that somehow there was a hearing where we were on notice — it is completely incorrect. Show me the hearing. Show me the transcript where that has been discussed.

MR. ALESSI: The prosecution has also said we always intended to bring on rebuttal Dr. Crosby, who would talk about the supposed absence — the alleged absence — of DNA. The problem with that — with trying to rescue the mistrial that the prosecution has caused with prejudice — is that Dr. Crosby could never testify about such a topic, because I would object, and I would object because there would be no foundation, because the prosecution strategically chose not to bring in the foundation whatsoever in this trial. The fact that they did it in another trial, or perhaps did it, is irrelevant to this trial, as your honor... has admonished several times. What happened? This is a new trial, and whatever happens in the first trial is the first trial.

MR. ALESSI: So in conclusion, your honor, because of the conduct of the prosecution and specifically the intentional mention of DNA, the prosecution has put in the jury's mind that topic that is irremediable, that cannot be reversed, that cannot be cured, that cannot be ameliorated with a jury instruction, that cannot be dislodged. The prosecution has to suffer the consequences of its own intentional actions of bringing up that topic. Ms. Read is entitled under the Constitution, under the Massachusetts Declaration of Rights, to a fair trial. And what has just happened is antithetical, abhorrent to a fair trial. The only remedy, the only remedy is a mistrial with prejudice.

MR. ALESSI: May I have a brief one minute?

MR. ALESSI: Thank you, your honor. Your honor, a key misstatement of fact that attorney Brennan just made. He said that Dr. Russell talked in prior proceedings and hearings about dog DNA. The record is abundantly clear. She only did so in response to a question from Mr. Brennan. I have the transcripts right with me. She never raised it affirmatively. She gave her opinion that these wounds were, to a reasonable degree of medical certainty, from a dog. Mr. Brennan on cross said — and this is in a prior proceeding — "Did you consider DNA?" She gave her answer. She didn't raise it. I heard it. I was there. Your honor was there. So this impression that Mr. Brennan is trying to give that somehow the defense brought this topic up before is incorrect. The second point: Mr.

MR. ALESSI: Brennan needs to have a good faith basis to ask the question. To have a good faith basis, he has to have some admissible evidence that he's got for it. He has no admissible evidence on dog DNA with regard to the arm. He knows he doesn't. He strategically chose not to bring that evidence in this case. Now he's saying he wants to use it. That would be improper in this trial for that reason. The other two points quickly. Mr. Brennan alleges an absence of dog DNA with regard to these wounds in the right arm. There was no swabbing of the wounds to the right arm of Mr. O'Keefe. That is a major, major investigative flaw in this case that should not be befallen upon the defendant. Secondly, with regard to the hoodie, there was, I believe, one swab taken.

MR. ALESSI: And we don't know much about it, but what we do know about it is there are horrible, tremendous chain of custody and care issues with regard to the hoodie — concededly? virtually left on the floor of the ambulance, left on the floor of the hospital, carried around by Mr. Proctor for weeks, maybe even months, not submitted for testing for months. There are huge issues that prevent a fair determination about whether there was even a proper determination of whether there was DNA or not. So in conclusion, your honor, the defense has never brought up DNA or alleged absence with regard to the right arm or the hoodie. It's always been the prosecution. We were meticulous and assiduous in not doing it here. The prosecution needs to live with the consequence of its action.

MR. ALESSI: This is irremediable?, and I respectfully submit warrants only one ruling, respectfully, and that is this trial must be declared a mistrial with prejudice.

MR. ALESSI: Your honor, I would object to being done outside the jury. It should be done like I've had to do with several witnesses, in front of the jury.

MR. ALESSI: I'm sorry. Let me confirm. Yeah. Okay. I am going to— Yes, your honor. We are going to— Thank you, your honor.

MR. ALESSI: Might help — obviously subject to — based upon Mr. Brennan only has two questions. I may have 30 minutes — at most 35 — to finish up whatever redirect that I have, if that affects your honor's decision. I just didn't want to stop them if they were on their way.

MR. ALESSI: I would object. This is the same exact issue I've had to deal with the cases where witnesses disregarded it and I was not allowed to pursue questioning. So, I do not believe under the standards that's been set in this trial that the proper foundation has been set.

MR. ALESSI: Thank you, your honor. My response is this. I'll give two quick examples. Dr. Welcher, Trooper Paul, Dr. Scordi-Bello — they talked and opened the door under Mr. Brennan's theory of opening the door widely. They even had as part of their direct examination documents in Dr. Welcher's slide that mentioned Dr. Scordi-Bello. You'll recall that slide. They even had material from the CARS team with a file name.

MR. ALESSI: Thank you.