In my experience, one of the most difficult type of cases for defense attorneys are those that are brought years after the alleged offense occurred.  The defense must go back in time to establish the facts from the defendant’s perspective, and to develop defenses.  This can be difficult if the memories of potential defense witnesses have faded or if physical evidence that would have been available to the defense is lost.

Such was the issue in Commonwealth v. Dame (2016) whete the SJC affirmed the defendant’s conviction of first-degree murder and ruled that the delay of more than thirty years in prosecuting the defendant for the crime did not violate his right to due process. The case arose from the murder of the victim in 1974.  “The subsequent police investigation focused on several potential suspects. A year of investigation produced a circumstantial but not very strong case against the defendant…. No one was indicted for the murder, and the investigation became largely dormant.” During the initial investigation, however, “scrapings from under the victim’s fingernails from both hands were preserved because they contained human blood and skin tissue.” More than twenty-five years later, DNA testing of this evidence was performed, utilizing more advanced analytical techniques than were available at the time of the crime. The test results, indicating that the defendant was involved in the killing, led to his indictment. The defendant filed a “pretrial motion to dismiss … on the ground that the Commonwealth recklessly or negligently delayed indicting him for thirty-two years,” thereby causing prejudice constituting a violation of due process. “The crux of the defendant’s argument was that his alibi witness, his sister, died in 1993 and was therefore unable to testify in his defense, and that the Commonwealth was ‘reckless and/or negligent’ in failing to charge him when she was still alive.” The judge’s denial of the motion to dismiss was challenged by the defendant in the present appeal.

In its decision, the SJC agreed with the judge’s findings “that the defendant had not established either substantial actual prejudice or that the delay was intentionally or recklessly caused by the Commonwealth.” The Court explained that “although the preindictment delay surely caused some prejudice to the defendant’s case, the circumstances do not give rise to the ‘severe prejudice’ that would require the ‘drastic remedy’ of dismissal of the indictment.”  The Court specifically “disagreed with the defendant’s assertion that the loss of his sister’s testimony caused severe prejudice.” “In addition to the existence of reports contradicting the sister’s statements about the defendant’s whereabouts on the night of the murder, ‘common sense and the case law dictate that the testimony of a blood relative of the defendant is inherently less credible than the testimony of other witnesses.’  …. Additionally, the defendant was able to pursue his alibi defense through his own testimony at trial.” After concluding that the prosecution did not act recklessly in this matter, the Court declined to consider the additional theory of prosecutorial negligence that was proposed by the defendant. The Court stated, “We recognize that negligent pre-indictment delay may amount to a constitutional violation in some cases….; however, such circumstances are not present here.”

Also in this decision, the SJC ruled that the defendant’s motion to suppress a paper towel containing the defendant’s DNA, which was seized without a warrant from his motor vehicle during the initial police investigation, should have been allowed, where the police lacked probable cause to believe that there was any nexus between the crime and the vehicle. The Court concluded, however, that the admission of the paper towel was harmless beyond a reasonable doubt.

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