BOSTON, June 7, 2017—A change in the law governing the use of certain cell phone records at trial will not benefit the man convicted of murdering George “Jeffrey” Thompson in 2010 because investigators assigned to his homicide provided affidavits containing detailed information that met the new, higher threshold – even though it would not be required in Massachusetts courts for four years, Suffolk County District Attorney Daniel F. Conley said.

Suffolk Superior Court Judge Beverly Cannone denied a motion by OMAY TAVARES for a new trial in Thompson’s shooting death, for which he was convicted of first-degree murder. Tavares had argued that the cell site location information introduced at his trial was obtained improperly in light of the Supreme Judicial Court’s 2014 decision in Commonwealth v. Shabazz Augustine I, but Cannone rejected that claim and found that investigators’ affidavits for court orders under the prevailing law at the time were sufficiently detailed that they would have supported search warrants as the high court would years later require.

“The new rule announced in Augustine I means the Government must demonstrate probable cause, a higher standard of proof than a [court order], which merely needed ‘specific and articulable facts’ demonstrating that the CSLI is ‘relevant and material to an ongoing criminal investigation,’” Cannone wrote. “[T]his showing is by affidavit and courts can retroactively determine whether that affidavit met the new higher standard, even if it was unnecessary at the time.”

Cell site location information from one of Tavares’ cell phones proved that he called the 28-year-old Thompson repeatedly in the hours leading up to the Jan. 7, 2010, homicide, including a call from immediately outside Thompson’s home, where the doorbell was disabled, shortly before Thompson was murdered by a visitor. Cell site location information from another of Tavares’ cell phones – on which he texted the message “Yo I got bagged” from Boston Police headquarters on the day of his arrest – showed that it had been activated the day after the homicide.

Cannone ruled that the affidavits filed in support of the 2010 court orders for both phones’ cell site location information were sufficiently detailed that they met the requirements set by the 2014 Augustine I decision. The affidavit for the first phone’s CSLI “reflected sufficient key facts beyond a strong suspicion based on what was known at the time,” she wrote, and the affidavit for the second noted the date of its activation and text message from a police interview room, which she found “demonstrate a consciousness of guilt.”

Cannone also ruled that the admission of CSLI evidence did not create a risk of a miscarriage of justice and that “substantial admissible evidence in the aggregate supported the jury’s verdict, independent of the CSLI for both phones.”

Assistant District Attorney Cailin Campbell of Conley’s Appellate Division argued against the motion. Former Assistant District Attorney Gretchen Lundgren prosecuted the case at trial.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.