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it’s rare for a client to be able towitness an attorney actually arguing acase before a court when a client islooking for his or her own lawyer backin 2003 I was approached to represent aman who had been unjustly convicted offirst degree murder back in 1990 and heserved 16 years in prison for a murderhe did not commit on I appeared beforethe Superior Court and convinced aSuperior Court judge to grant my clienta new trial the DA’s office actuallyappealed that granting of a new trialand I wound up arguing before theSupreme Judicial Court of Massachusettsarguing that my client should be grantedthat new trial here is the argument thatI presented mr. Yin a thank youmay it please the court my name is Davidunity and I represent the appellate inthis case Roland Douglas Feith jr. yourhonors this Court should affirm

thedecision of the Superior Court justiceand grant my client a new trial what arethe connections between mr. Barger whoyou claim may be the third party culpritand the victim here that would warrantfor example the court permitting theadmission of hearsay evidence well Ithink there are two answers to that thefirst is there was substantial evidencedeveloped that he had the motive meansopportunity to commit this murder andalso acted like a guilty person wouldand demonstrated consciousness of guiltin the aftermath of the murder thesecond answer that to that your honor isthat with regard to mark Bargerstatements that he made which are reallythe only hearsay evidence that were orpotential hearsay evidence

that we’retalking about here I would assert thatthose aren’t hearsay at all because theyare not offered for the truth of thematter asserted on the connecting linksyour honor go to exactly what evidencewe have that mark Barger committed thismurder but wait and say is truethen anytime there is a nut within acouple of blocks of a crime scene thatperson’s conduct could be put to a juryas a potential source of a third partycontract I disagree your honor anytimethere is evidence of a maniac down thestreet one block awayit’s in the record just one block awaywho has demonstrated through hisstatements that he knows the victim thathe distant how does

 

he know her what wasin the evidence that said that he knewabout it well there was nothing in theevidence at trial and the jury shouldhave heard this I don’t know what was inthe evidence of the motion for new trialthat he knew her well when confronted byhis wife the next morning or when shementions the fact that there had been amurder of this poor girl down the streethe says she probably deserved it no whydoes that indicate that he knew her thatin conjunction with the fact when shesays well the paper is saying she was areally nice girl he says she’s not thegoody two-shoes that they made her outto be there was further evidence thatthe police received that a neighbor hadalso said that mark bogan knew somegirls from the college the victim was agirl at the college you take all of thatinto consideration

your honor and thatis powerful evidence that he knew herdisliked her and wanted to see her deadand take that in to control his powerfulevidence well I would argue that to ajury you’re wrong of course you’d arguethat to a jury to learn but but that’sthe power well I think the power in thatis once you take that evidence andconduct in conjunction with the factthat he had the means to commit thismurder he had that axe handle that hedisposed of that the police never lookedat and is consistent with the rodlighting like instrument that mr. Kuhnis just spoke about you talk about thefact that he had the opportunity tocommit this murder which is that hiswhereabouts are unaccounted for at 11:15to 11:30 p.m. the medical examiner saidtestified that the victim was found at1:30 and that she would be expected

tolive for two hours or a little bit morewith those injuries which would put themurder at 11:15 11:30 which would Iwould argue to a jury if given theopportunity well that’s exactly that’sall very interestingbut how is it a substantial connectinglink well it really doesn’t place himwell your honor specifically with regardto this issue of substantial substantialconnecting links please that onlyapplies to the statements that Markbarber made it does not apply to the axehandle evidence it does not apply to hisopportunity to go into that house andthe fact that the door was unlocked itdoes not apply to his consciousness ofguilt in the aftermath of the murder itdoes not apply to the fact that he fledthe area three weeks

later it does notapply the fact that he left it look gotrid of the axe handle and his wife neversaw it again and it does not apply tothe fact that he washed all of hisclothes for the very first time onlytime no Woodmont you said the only timeyou ever washed yes your honor the onlytime he ever washed his clothes aftercoming home from work I thought therewas some reference to the wife’stestimony that he had washed clothesbefore but this night she was awakenedbecause the washing machine wasunbalanced and that’s what woke her yourhonor you’re correct except if theevidence was adduced at that trial theevidence was that during the five yearsthat they were married her estimate 23years after the fact was that he mayhave washed his clothes once or twiceper year I put the question to her howmany times of those once or twice peryear did he ever wash his clothes aftercoming home from the night shift theanswer was none take all of those intoconsideration your honor in my argumentis that provides a substantialconnecting link and a lot ofcircumstantial evidence that mark Bargerwas involved here

which would justifythe admission of hearsayhowever again my argument is that thosestatements aren’t hearsay at all okay sowhat you’re saying mr. Janetti iswhether or not that’s powerful evidencepeople could differ but you should havehad the opportunity to present it to ajury although the jury could havedecided whether it was powerful that’sprecisely the point your honor that’sprecisely the point in July of this yearyour honor wrote an opinion carmelversus cohan which stated along-standing rule of this court whichis that a criminaldefendant has a constitutional rightfederal and state to present evidencethat someone else committed the crimemr. Yin ATS we ask you this questionthis defendants conviction was affirmedin 1993 this victim was killed in 1980correct and we have a delay of from 1993until 2002 before he brings this claimbut I think it will be reasonable toassume that it will be very difficult toretry this case I don’t know

whichwitnesses are available but of anyattention should the court pay to thelong delay in bringing this motion for anew trial umvery little Your Honor I would assert umi would i would argue to the court thatwith regard to the Commonwealth’sability to retry this case they would bein a far better position to do it thanin other cases where there thereevidence depending on for instanceeyewitness testimony identificationevidence things of that nature wherethey’ll have to gather up theirwitnesses again and test their memory 20years laterthis case as this Court has alreadynoted depends almost exclusively on aconfession an alleged confessiontypewritten by police that confession isstill available the police officers I’veseen them I know that they’re stillaround that is the sum and substance ofthe Commonwealth’s case when this casewas reviewed back in 1993 this courtliked the jury before it was misled intobelieving that the confession is allthere was and that there was no othersuspect