BOSTON, Dec. 18, 2015—The chief justice of the Supreme Judicial Court commended a Suffolk County prosecutor who brought to the high court’s attention an omission of testimony that went unnoticed by the trial judge and lawyers, and even the convicted defendant’s appellate attorney, District Attorney Daniel F. Conley said.
Chief Justice Ralph Gants told Assistant District Attorney Zachary Hillman that he was “acting in the highest tradition of the prosecutive trade” when Hillman informed the court that an expert witness in the murder trial of ADAM CASSINO did not testify specifically about the statistical significance of murder victim Barbara Tagen’s unique DNA profile being found on Cassino’s shoes – an omission that could have been exploited by defense counsel. The compliment came during the Dec. 11 oral arguments on Cassino’s first-degree murder conviction.
Assistant District Attorney Zachary Hillman was “acting in the highest tradition of the prosecutive trade,” the state’s top judge said.
“Make sure that gets back to his boss, ok?” Gants instructed a fellow Suffolk prosecutor who was seated at counsel table.
The fellow prosecutor did just that, and Conley lauded Hillman, a seven-year veteran of the DA’s Appellate Division, for affirmatively raising an appellate issue that could have benefitted the opposing side.
“Zachary Hillman knows that our mission isn’t to win cases – it’s to do justice,” Conley said. “When we train new prosecutors, we tell them that courtroom victories don’t mean anything without honesty and integrity. This is an outstanding example of living up to our core principles, and I’m very proud of him.”
Cassino was convicted in 2013 of beating Tagen – a 65-year-old grandmother – to death in her South Boston apartment. Among the evidence at trial was evidence that Tagen’s blood was recovered from Cassino’s sneakers when they were seized at a substance abuse treatment facility shortly after the murder, and DNA science was the subject of extensive trial testimony and documentation.
While scrutinizing the trial transcripts in advance of Cassino’s appeal, Hillman discovered that the DNA expert did not offer an opinion as to the statistical significance of Tagen’s genetic profile being found on Cassino’s footwear. Under the 2010 decision in Commonwealth v. Mattei, the high court found that the omission of “testimony regarding statistical findings explaining the import of such a result [is] likely to confuse and mislead the jury.”
The trial judge, prosecutor, and defense attorney had all missed the omission, and Cassino’s appellate counsel failed to raise it on appeal. Nonetheless, Hillman brought it to the SJC’s attention in his brief.
Hillman went on to argue that, while the omission was error, it did not require reversal of the conviction because the defense argued at trial that the blood belonged to the victim but was transferred to the sneaker by another party. Moreover, defense counsel had the entirety of the expert’s DNA report, was aware that the likelihood of some other person contributing the DNA profile was infinitesimal, and knew that jurors had been well-educated through expert testimony on the significance of the victim’s alleles being fully present at 15 of 16 DNA loci and partially present in the 16th.
All the same, Gants said, “I wish to commend you for bringing the Mattei issue to our attention …. We appreciate your doing that.”
The entire oral arguments in Cassino’s appeal are online at http://www.suffolk.edu/sjc/archive/2015/SJC_11684.html. Gants’ comments begin at 21:15.
–30–
All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.
