DEFENDANT’S APPLICATION FOR DIRECT APPELLATE REVIEW …

COMMONWEALTH OF MASSACHUSETTS

WORCESTER, S.S.

SUPREME JUDICIAL APPEALS COURT COURT No. No. 2018-P-0844


v.

STEVEN PUTNAM

DEFENDANT’S APPLICATION FOR DIRECT APPELLATE REVIEW

OF THE ORDER OF THE WORCESTER SUPERIOR COURT

Merritt Schnipper SCHNIPPER HENNESSY PC

25 Bank Row Suite 2S Greenfield MA 01301 (413) 325-8541 [email protected] BBO# 676543

Supreme Judicial Court for the Commonwealth DAR: DAR-26220 Filed: 6/28/2018 3:35 PM

1


WORCESTER, S.S.



v.

STEVEN PUTNAM

APPLICATION FOR DIRECT APPELLATE REVIEW Defendant Steven Putnam applies pursuant to Mass.

R. A. P. 11 for direct appellate review of the order

of the Worcester Superior Court denying his Motion for

Post-Conviction Access to Forensic and Scientific

Analysis.

Defendant’s appeal presents unresolved questions

regarding the meaning of the phrases ‘factually

innocent’ and ‘material to the moving party’s

identification as the perpetrator of the crime in the

underlying case’ as used in G.L. c.278A, the post-

conviction forensic testing statute, and whether that

statute permits access to testing by defendants who

claim wrongful conviction and factual innocence based

on a knowingly false accusation rather than a flawed

identification procedure or other source of mistaken

identification. Mr. Putnam was indicted for rape, as

2

well as home invasion and armed assault in dwelling,

based on his visit to the complaining witness’s home

on a winter night in 2004. The complaining witness

claimed, and testified at trial, that the Defendant

ripped off and tore her clothing and digitally raped

her. Mr. Putnam has consistently maintained, and

testified at trial, that the complaining witness

falsely accused him, and that on the evening in

question the two did no more than briefly and

consensually hug and kiss.

Both the clothing worn by the complaining witness

at the time of the alleged crime and a rape kit

performed on her shortly thereafter remain in the

Commonwealth’s possession, though neither has ever

been subjected to DNA or other scientific analysis.

The Defendant sought forensic testing of this evidence

pursuant to G.L. c.278A to support his claim of

factual innocence, arguing that because he was invited

into the complaining witness’s home, never digitally

penetrated her, and engaged only in consensual

interactions with her, the Defendant had committed no

crime and therefore could not have been properly

‘identified as the perpetrator of the crime in the

underlying case’ within the meaning of the forensic

3

testing statute. The Defendant supported this claim

with affidavits pursuant to G.L. c.278A §3(d) in which

he affirmed his factual innocence of the crimes of

conviction and a memorandum of law in which he argued

that evidence supporting his claim he did not rip off

the complaining witness’s clothing or digitally

penetrate her satisfied G.L. 278A §3(b)(4)’s

materiality standard because it had the potential to

show he had been falsely accused, and therefore had

necessarily been incorrectly identified as the

perpetrator of the (non-existent) crimes of

conviction. The Superior Court rejected these

arguments and denied Mr. Putnam’s motion on the

grounds there was no dispute he was properly

identified as the individual who visited the

complaining witness’s home on the day in question, and

that the issue presented by his motion “is not

identity, but whether a crime occurred,” a claim of

innocence it implicitly held was not encompassed by

G.L. c.278A.

Defendant’s appeal squarely raises the question

of the scope of the class of factual innocence

claimants the Legislature intended to include within

c.278A’s ambit, and whether forensic testing under the

4

statute’s relatively forgiving standards is available

only to persons convicted based on mistaken

identifications or to other categories of actual

innocence claimants as well. It also presents the

question of how ‘factual innocence’ is to be assessed

more generally, and how a defendant’s claim to have

committed no crime should be treated when that

assertion means his or her conviction flowed not from

a mistake but from a knowingly false accusation. These

questions have far-reaching implications for the

availability of post-conviction forensic testing and

other factual innocence claims made by persons

prosecuted in the Commonwealth, and require resolution

by this Court.

As further support for his Application, Defendant

relies upon the attached Memorandum of Law.

June 28, 2018 Respectfully Submitted, STEVEN PUTNAM By His Attorney, /s/ Merritt Schnipper

Merritt Schnipper SCHNIPPER HENNESSY

25 Bank Row Suite 2S Greenfield MA 01301 (413) 325-8541 [email protected]

BBO# 676543

5


WORCESTER, S.S.



v.

STEVEN PUTNAM

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR DIRECT APPELLATE REVIEW

I. STATEMENT OF PRIOR PROCEEDINGS

Based on events alleged to have occurred on

January 26, 2004, a Worcester grand jury indicted

Defendant Steven Putnam for armed home invasion, G.L.

c.265 §18C; armed assault in a dwelling, G.L. c.265

§18A; aggravated rape, G.L. c.265 §22; and assault and

battery, G.L. c.265 §13A. Appx:1-2.1 The Defendant was

tried to a jury in 2006 and convicted of the lesser-

included offense of rape and all other charges as

indicted. Appx:5-6. He was sentenced to twenty to

twenty-five years in state prison with five years’

probation from and after, Appx:6, and the Appeals

1 Citations to the docket entries and other materials contained in the appendix to this application are identified as Appx:Page.

6

Court affirmed his convictions in 2009. See

Commonwealth v. Putnam, 75 Mass.App.Ct. 472 (2009).

Mr. Putnam filed pro se motions for new trial in

2011, 2014, 2015, and 2017, all of which were denied.

Appx:8-12. He filed a pro se motion under G.L. c.278A

§3 in 2014, which was denied. Appx:9. The Defendant

filed the G.L. c.278A §3 motion at issue on this

appeal pro se in 2016, and in 2017 the Superior Court

assigned counsel to assist him with its litigation

pursuant to G.L. C.278A §5. Appx:10-12. Counsel filed

a supplemental memorandum in support of Mr. Putnam’s

pro se pleadings on April 25, 2018, and the Superior

Court denied the motion on May 29. Appx:13-14. The

Defendant timely noticed his appeal, and the case

entered the Appeals Court June 11, 2018.

II. FACTS RELEVANT TO THE APPEAL

1. Defendant’s Conviction

The Defendant and the complaining witness in his

case were previously acquainted. See Putnam, 75

Mass.App.Ct. at 473. As described by the Appeals

Court, the evidence at trial showed that

[o]n January 26, 2004, around 8:30 P.M., while the victim was on the telephone, the defendant knocked on her door. The victim opened the door a few inches and saw the defendant. The defendant said that he wanted

7

to come in and speak with her. She told him to go home and to telephone her in one-half hour, and she would speak to him on the telephone. She then closed the door and returned to her telephone conversation. Around 8:55 P.M., the victim finished her conversation and telephoned [Mr. Putnam’s employer/landlord] to inform him that the defendant had been to her house and that ‘he might be in bad shape.’ She also told [employer/landlord] that if he received a telephone call from her that evening, he should telephone the police and have them come to her house, no matter what she said.

Shortly after speaking with [employer/landlord], the victim heard a knock on her door. When she went to the door, the defendant was standing there and appeared distressed. She opened the door because the door had glass in it and she ‘thought it would be better to open the door than to try and keep him on the other side.’ The defendant came into the house and the victim told him to sit at the dining room table. She sat at the table with him and noticed that he was disturbed, and that he had blood on his left hand. She asked the defendant if he was suicidal, to which he replied that he was not. The defendant began to talk to the victim, mumbling to the point that she ‘had trouble understanding him.’ During this conversation, the victim got up, picked up the telephone, and told the defendant that she did not think he was all right, that she thought they should telephone [employer/landlord], and that she thought he needed some help. The defendant then grabbed her around her back, shoved her, punched her face, and violently knocked the telephone out of her hand, throwing it on the floor where it broke. He then began to punch the victim, pull her hair, and maneuver her around. As he was beating the victim, he asked, ‘Why did you call [employer/landlord]?’

At some point, the defendant pulled a knife out of his pocket. He said, ‘You can

8

make this hard or you can make this easy.’ He then tried to force the victim to go upstairs. When they got to the bottom of the stairs, the victim sat ‘heavily’ and resisted.

After the defendant's attempts to push the victim up the stairs failed, he threw her on a couch located near the stairs in her living room and ripped off the clothing she wore on the bottom of her body. He then pulled his pants down and lay on top of the victim. He put his finger into the victim's vagina and began thrusting. The victim kept telling the defendant that ‘this...was not good,’ that it was ‘not going to happen,’ and that it was something she ‘didn't want to do.’ Nonetheless, the defendant continued raping her.

The defendant then sat up and told the victim to take her top off. She sat up and made a gesture as though she was going to comply. When the defendant began to pull his own shirt over his head, the victim ran toward the front door. She ran outside, naked from the waist down and not wearing shoes, towards [employer/landlord]'s farmhouse. [Employer/landlord] let her into their house and the victim, who was hysterical and sobbing, told them that the defendant ‘had tried to rape’ her. Emerson immediately called the police and they arrived at the house within ten minutes. The police proceeded to the victim's residence and conducted a preliminary search. The police found a knife outside the victim's house.

The defendant testified in his own defense. He admitted to having had a long-term alcohol problem. When he moved into [employer/landlord]'s apartment in 2000 he had been sober for eleven years; however, he did not remain sober. The defendant testified that he came to the victim's house on the day of the incident because he knew that the victim was a doctor and he thought she could help him in some way, such as getting him into a detoxification program.

9

When he came to the victim's home, she invited him into the house. After some conversation, the victim told the defendant that she was going to telephone [employer/landlord], and that [employer/landlord] would telephone the police. The defendant became afraid; he recently had been involved in two ‘DUI’ (driving under the influence) cases and had been warned that if he was convicted of a third offense he would go to jail for six months.

The defendant testified that he then grabbed the victim and tried to persuade her not to telephone [employer/landlord]. Next, he kissed her, and he thought that she kissed him back. The defendant then offered to the victim to go upstairs but she refused. Next, they were on the couch; the defendant thought that the victim went to the couch willingly. He thought they were engaged in a consensual activity until the victim asked the defendant to stop. In response, the defendant stopped. He then sat up, the victim sat up, and, then, the victim ran out the door. The defendant denied putting his finger in the victim's vagina. Although the defendant had a knife, he did not threaten the victim with it. He tried to give the victim his knife because he was afraid that he was going to cut his wrists.

A few minutes after the victim ran out of her house, the defendant returned to his apartment, grabbed ‘a bunch of beers,’ and walked out into the woods. The next day, he found himself in Leominster, walking down the railroad tracks. His mother picked him up at the Leominster Public Library and brought him to Emerson Hospital, where he was arrested.

Id. at 474-76.

10

2. Defendant’s Motion for Forensic Testing

Mr. Putnam submitted two G.L. c.278A §3(d)

affidavits in connection with his motion for post-

conviction forensic testing. In the first he stated “I

am factually innocent of committing any crime against

the complaining witness” and “I have been trying to

prove my innocence for more than a decade, to no

avail, but I believe that forensic and scientific

analysis will exonerate me.” Appx:20. In the second,

he elaborated

[a]fter a jury trial, I was convicted of home invasion, armed assault in a dwelling, and rape. I am factually innocent of these crimes. I was invited into the home of the complaining witness and did not enter her home with the intent to commit any crime there, did not use force on or cause injury to the complaining witness, and did not digitally penetrate the complaining witness. The forensic analysis I seek with this motion will support my claims of factual innocence of the crimes of conviction.

Appx:36. In his supplemental filing, the Defendant

explained that testing of the rape kit and clothing he

allegedly ripped off the complaining witness could

support his factual innocence claim by showing he had

neither ripped off the complaining witness’s clothing

nor digitally penetrated her. Appx:28.

11

The Defendant’s motion for forensic testing

addressed the five statutory factors set forth in G.L.

c.278A §3(b). See Appx:24-35. With regard to the

requirement that he set forth “information

demonstrating that the analysis has the potential to

result in evidence that is material to the moving

party's identification as the perpetrator of the crime

in the underlying case,” G.L. c.278A §3(b)(4), Mr.

Putnam acknowledged “[w]hether c.278A provides access

to forensic testing by defendants who claim factual

innocence on the basis of false accusations by alleged

victims who knew them at the time of an alleged crime,

rather than only in cases of mistaken identification,

is a question of first impression,” but argued “the

Legislature did not intend to exclude this class of

factual innocence claimants from access to forensic

testing and its exculpatory power.” Appx:28-29.

Mr. Putnam pointed out that “[b]y its plain

language, G.L. c.278A §3(b)(4)’s materiality

requirement does not relate solely to the

identification of an individual, but rather to that

person’s identification as ‘the perpetrator of the

crime’ of which he or she was convicted.” Appx:30. He

asserted that “[i]n the case of a moving party who

12

claims to have been falsely accused, his or her theory

of the case is premised on the idea that no crime

occurred at all, meaning there is no perpetrator who

could legitimately be identified, charged, and

convicted,” and pointed out that G.L. c.278A §1

“defines a ‘factually innocent’ person as one

convicted of a criminal offense who did not commit

that offense,’ without any reference to mistaken

identification.” Appx:30.

The Defendant further argued that the inquiry

into whether he had been incorrectly identified as a

perpetrator, in the context of a false accusation-

based innocence claim like his, necessarily meant

determination of whether the underlying offense had in

fact occurred. He explained that in his case, G.L.

c.278A §3(b)(4)’s

materiality standard is satisfied by the fact that testing of the Sexual Assault Evidence Collection Kit for his YSTR (male-specific) DNA, if it showed none was present, would support his claim to never have digitally penetrated the complaining witness and that there was no crime of rape he could be identified as having perpetrated. Similarly, testing of the pants the Defendant allegedly ripped from the complaining witness’s body so forcefully that he tore their fabric for his ‘handler’ DNA, if it showed none was present, would support his claim that he did not attack the complaining witness but rather participated

13

with her in consensual ‘romantic hugging and each party removing their own clothing,’ supporting his claim he neither sought to force the complaining witness to submit to sex not committed the crime of armed assault in a dwelling.

Appx:30-31. Finally, Mr. Putnam pointed to this

Court’s decision in Commonwealth v. Moffatt, which

rejected the “suggest[ion] that postconviction

forensic testing under G.L. c.278A is limited to

direct evidence of the perpetrator’s identity” and

instead emphasized a direct connection between the

crime of conviction and the evidence sought to be

tested, as well as assessment of each case based on

“the facts and circumstances of the crime.” Appx:31-32

(quoting 478 Mass. 292, 300-01 (2017)). The Defendant

pointed out that the evidence he “seeks to test is

directly tied to the crimes of conviction, either

because it was gathered from the complaining witness’s

body in the aftermath of the alleged rape or because

it was introduced at trial under the theory that the

Defendant handled it in the course of assaulting her.”

Appx:32.

3. Denial of Defendant’s Motion The Superior Court denied Mr. Putnam’s motion for

forensic testing by a margin notation, stating that

14

[a]fter thorough review of the respective pleadings, the history of this case— particularly post-conviction motions and decisions—and following a hearing and review of the relevant law, the defendant's motion is DENIED. The defendant's motion and affidavits do not meet the requirements of c.278A, §3(b)(4) in that defendant has not met his burden to show whether any test results could be material to the question of identity of the perpetrator. Here the issue is not identity, but whether a crime occurred. Defendant is not entitled to relief. For these reasons and as stated in Commonwealth's memo the defendant's motion is DENIED.

Appx:14. In its memorandum referenced by the motion

judge, the Commonwealth argued in relevant part that

by the plain language of the statute and as interpreted by the Supreme Judicial Court and Appeals Court, the statute was intended for defendants who challenge[] their identification as the perpetrator of the crime. The defendant here is not challenging his identity as the perpetrator of the crime. The defendant, rather, is challenging that a crime occurred at all. At trial, the central issue for the jury to resolve was consent. Identity was not an issue. To date, the defendant has filed numerous briefs and motions for new trial in which he continuously avers that the entire encounter with the victim was consensual. Therefore, post-conviction forensic or scientific testing under G.L. c.278A does not apply to the defendant’s case.

Appx:42.

15

III. ISSUES OF LAW RAISED BY THE APPEAL 1. Has a movant who affirms he or she was

convicted of a crime based on a false accusation, and

that the alleged crime in fact never occurred,

asserted a claims of ‘factual innocence’ within the

meaning of G.L. c.278A?

2. Is evidence tending to show a movant who

concededly interacted with the person who accused him

or her of a crime was falsely accused, and in fact

committed no crime, material to his or her

‘identification as the perpetrator of the crime in the

underlying case’ within the meaning of G.L. c.278A

§3(b)(4)?

These issues are preserved for the Court’s

review. They were raised and argued in the Defendant’s

Motion for Post-Conviction Access to Forensic and

Scientific Analysis, and the Superior Court’s adverse

decision on them formed the grounds of the judgment at

issue on appeal.

16

IV. ARGUMENT

A Defendant Convicted Based on a False Accusation is Factually Innocent Within Any Understanding of that Term, and Evidence Tending to Demonstrate the Falseness of an Accusation Is Therefore Material to a Defendant’s Identification Within the Meaning of G.L. c.278A §3(b)(4)

There can be no serious question that a defendant

who alleges he or she was convicted of a crime based

on false accusation and testimony has set forth a

claim of factual innocence. In Mr. Putnam’s G.L.

c.278A §3(d) affidavits, he asserted his innocence of

rape and the other crimes of conviction, explained

that he was invited into the complaining witness’s

home and entered there without criminal intent, and

expressly denied that the act alleged to constitute

the rape occurred. Adopting the Commonwealth’s

reasoning, the Superior Court held that these facts,

even if accepted as true, did not satisfy the

threshold requirements of G.L. c.278A §3 because they

did not call into question the accuracy the

Defendant’s identification as the person at the

complaining witness’s home on the night in question.

This interpretation of G.L. c.278A §3(b)(4)’s

materiality requirement improperly read the

requirement of relevance to a moving party’s

17

identification as the perpetrator of the underlying

crime out of the statute, and thereby undercut its

remedial purpose. The Court should hold that a moving

party that has alleged he or she was convicted based

on a false accusation has made out a claim of factual

innocence within the meaning of G.L. c.278A, and that

evidence tending to show no crime in fact occurred

satisfies G.L. c.278A §3(b)(4)’s materiality standard.

In denying Mr. Putnam’s motion, the Superior

Court adopted the Commonwealth’s reasoning that G.L.

c.278A testing is available only to defendants

claiming misidentification through flawed procedures

or other means of mistaken identification, not to

defendants who claim they were convicted of a crime

that never occurred. But the statute and cases

interpreting it do not impose such a limitation, and

instead focus on the goal of reaching more factually

correct verdicts based on the potentially exculpatory

power of objective forensic evidence. This remedial

goal, along with generally applicable principles of

statutory construction, support interpreting G.L.

c.278A §3(b)(4)’s materiality standard as being

satisfied in cases where a defendant shows testing has

the potential to show he or she did nothing illegal,

18

and therefore was mistakenly “identif[ied] as the

perpetrator of the crime in the underlying case,”

regardless of the particular theory of innocence.

As it does with all statutes, this Court looks to

legislative intent, as shown by plain language and

remedial purpose, to interpret G.L. c.278A. See

Commonwealth v. Wade, 475 Mass. 54, 60 (2016) (“Wade

III”). The Legislature’s intent in enacting G.L.

c.278A “was to remedy the injustice of wrongful

convictions of factually innocent persons by allowing

access to analyses of biological material with newer

forensic and scientific techniques [and to] provide a

more reliable basis for establishing a factually

correct verdict than the evidence available at the

time of the original conviction.” Id. at 55. Common

sense dictates that a wrongful conviction is unjust

whether it flows from mistaken identification, a false

accusation, or some other theory of innocence. And

“[g]iven [the Legislature’s] compelling interest in

remedying wrongful convictions of factually innocent

persons,” G.L. c.278A should be construed “in a manner

that is generous to the moving party.” Commonwealth v.

Clark, 472 Mass. 120, 136 (2015).

19

By its plain language, G.L. c.278A §3(b)(4)’s

materiality requirement does not relate solely to the

identification of an individual in the abstract, but

rather to that person’s identification as “the

perpetrator of the crime” of which he or she was

convicted. It goes without saying that in the case of

a moving party convicted of a crime that never

occurred, there is no perpetrator who could

legitimately be identified, charged, and convicted.

Any conviction for a crime that never occurred is

therefore within the ambit of the statute. The

restrictive interpretation of the materiality

requirement endorsed below impermissibly reads the

requirement of identification as the person who has

committed a particular criminal act, not just as

someone identified by an alleged victim, out of the

statute. See Commonwealth v. Millican, 449 Mass. 298,

300 (2007) (“[n]one of the words of a statute is to be

regarded as superfluous”). Moreover, the

interpretation of G.L. c.278A §3(b)(4) advanced by the

Commonwealth and adopted by the Superior Court

directly conflicts with the Legislature’s overall

purpose of correcting the injustice of wrongful

convictions. This Court has warned against excessively

20

literal readings of statutory subsections in such

circumstances. See Wolfe v. Gormally, 440 Mass. 699,

704 (2004) (stating that “statute[s] must be viewed as

a whole; it is not proper to confine interpretation to

the one section to be construed” and “if a court

concludes that the general meaning and object of the

statute should be found inconsistent with the literal

import of any particular clause or section, such

clause or section must, if possible, be construed

according to the spirit of the act”). If the

Legislature wished to restrict the availability of

testing to cases of mistaken identification, or to

cases where convictions were obtained through

particular identification procedures, it could have

said so in plain language. But no such restriction

appears in G.L. c.278A, and the ‘spirit of the act’

counsels strongly against reading it narrowly to allow

testing only in one subset of factual innocence cases.

In Commonwealth v. Moffatt, this Court rejected

the “suggest[ion] that postconviction forensic testing

under G.L. c.278A is limited to direct evidence of the

perpetrator’s identity,” and instead emphasized a

direct connection between the crime of conviction and

the evidence sought to be tested, as well as

21

assessment of each case based on “the facts and

circumstances of the crime.” 478 Mass. 292, 300-01

(2017). Here, the facts and circumstances of the

charged crime are important to the materiality

inquiry. Mr. Putnam was convicted of rape based solely

on the testimony of the complaining witness, and the

only physical evidence collected from the scene was

never subject to any forensic testing. This Court has

repeatedly observed that “[t]he right to cross-examine

a complainant in a rape case to show false accusation

may be the last refuge of an innocent defendant” and

said an accused has “the right to bring to the jury’s

attention any circumstance which may materially affect

the testimony of an adverse witness which might lead

the jury to find that the witness us under an

influence to prevaricate.” Commonwealth v. Polk, 462

Mass. 23, 38 (2012) (quotations omitted). Here, the

Defendant seeks through G.L. c.278A what this Court

has recognized may be the last refuge of an falsely

accused defendant: evidence that could convince a jury

the crime he is accused of did not occur.

This Court has held that the availability of

testing under G.L. c.278A does not turn on the

likelihood that evidence produced would entitle a

22

defendant to a new trial, see Clark, 472 Mass, at 136,

and has also noted that defendants may aver their

factual innocence notwithstanding prior inculpatory

statements or other evidence of guilt. See

Commonwealth v. Wade, 467 Mass. 496, 513-15 (2014)

(“Wade I”). Still, it has connected the larger factual

innocence inquiry to the potential impact of evidence

produced by forensic testing on a jury’s determination

of guilt or innocence. For example, Wade I looked to

Bousley v. United States to define the concept of

factual innocence, see id. at 514; in that case, the

Supreme Court said “[t]o establish actual innocence,

[a defendant] must demonstrate that, in light of all

the evidence, it is more likely than not that no

reasonable juror would have convicted him.” 523 U.S.

614, 623 (1998). And in the related context of

interpreting the phrase ‘grounds tending to establish

innocence’ in G.L. c.258D, the wrongful conviction

compensation statute, this Court said that standard is

satisfied if jurors were “forestalled from making a

fully informed decision as to the defendant’s guilt or

innocence because of the absence of critical

evidence.” Drumgold v. Commonwealth, 458 Mass. 367,

378 (2010); see also Wade I, 467 Mass. at 514-15

23

(citing Drumgold while construing ‘factual innocence’

in G.L. c.278A).

Given that G.L. c.278A is addressed to

convictions of innocent persons, it is difficult to

see how potential new evidence of innocence can be

assessed other than by its likely impact on the

adjudicative process. See Calderon v. Thompson, 523

U.S. 538, 559 (1998) (“To be credible, a claim of

actual innocence must be based on reliable evidence

not presented at trial”). The Court’s ‘factual

innocence’ cases to date both within and outside the

forensic testing context, as well as the federal

precedents it has looked to for guidance, strongly

suggest that evidence tending to show a defendant has

been falsely accused of a crime that did not occur,

and which if shown at trial would require a judgment

of acquittal, supports a claim of factual innocence

under G.L. c.278A.

If his version of events on the evening of

January 26, 2004 is accepted as true—which it must be

at the “essentially nonadversarial” G.L. c.278A §3

stage, Moffatt, 478 Mass. at 296—Mr. Putnam’s claim to

innocence is as valid as any other, since he has been

convicted of a nonexistent crime. The testing he seeks

24

could support this claim with objective evidence the

alleged act of rape did not occur, and that the

Defendant indeed never used force against the

complaining witness at all. In the context of the

Defendant’s case, evidence tending to show that no

crime occurred on the night of January 26, 2004, which

forensic testing has the potential to produce, is the

key to determining whether Mr. Putnam was mistakenly

identified as a perpetrator of rape and other offenses

in the underlying case. In such circumstances, the

line between the specific requirement of materiality

to identification and the more general requirement of

an assertion of factual innocence collapse into each

other, since the non-existence of the crime means

anyone convicted of it was misidentified. See G.L.

c.278A §1 (defining a “factually innocent” person as

one “convicted of a criminal offense who did not

commit that offense”) (emphasis added).

The purpose of G.L. c.278A is not to ensure that

identification procedures are backstopped with

objective evidence wherever possible (though that is

an important goal). It is to remedy the injustice of

wrongful convictions of innocent persons through

examination of forensic evidence likely to correlate

25

with more factually accurate verdicts, and the Court

must interpret G.L. c.278A §3(b)(4)’s materiality

requirement with that purpose in mind. Because

forensic testing of the rape kit and clothing at issue

here has the potential to show the Defendant was

convicted of a crime he did not commit, it is material

to his identification as a perpetrator within the

meaning of the statute. The Court should hold that

G.L. c.278A’s ‘materiality to identification’ standard

reaches cases in which defendants claim wrongful

conviction based on a false accusation.

26

V. REASONS DIRECT REVIEW IS APPROPRIATE In passing G.L. c.278A, the Legislature

recognized both the urgency of the problem of wrongful

convictions and the power of forensic testing to

address it. The scope of the class of convicted

persons claiming factual innocence who may access

forensic testing pursuant to the statute’s relatively

forgiving standards is therefore of paramount

importance to its remedial purpose, as is the

treatment of persons who claim conviction based on

false accusations more generally under Massachusetts

law. These issues are important to the fair

administration of justice in the Commonwealth, and

therefore merit direct review by this Court.

June 28, 2018 Respectfully Submitted, STEVEN PUTNAM By His Attorney, /s/ Merritt Schnipper

Merritt Schnipper SCHNIPPER HENNESSY

25 Bank Row Suite 2S Greenfield MA 01301 (413) 325-8541 [email protected]

BBO# 676543

27

CERTIFICATE OF COMPLIANCE

I certify that the foregoing complies with the applicable rules of appellate procedure. /s/ Merritt Schnipper Merritt Schnipper

CERTIFICATE OF SERVICE I certify that I electronically filed this Application for Direct Appellate Review through the Court’s e-filing system, which will deliver an electronic copy of the same to Donna-Marie Haran, counsel for the Commonwealth. /s/ Merritt Schnipper Merritt Schnipper

APPENDIX

0485CR00666 Commonwealth vs. Putnam, Steven

Case Type IndictmentCase Status OpenFile Date 04/16/2004DCM Track: I - InventoryInitiating Action: HOME INVASION c265 §18CStatus Date: 04/16/2004Case Judge:Next Event:

All Information Party Charge Event Tickler Docket Disposition

Alias Party AttorneyAttorney Haran, Esq., Donna MarieBar Code 664526Address District Attorney's Office

225 Main StWorcester, MA 01608

Phone Number (508)755-8601

Alias Party AttorneyAttorney Schnipper, Esq., Merritt

SpencerBar Code 676543Address Schnipper Hennessy

25 Bank RowSuite 2SGreenfield, MA 01301

Phone Number (413)325-8541

Alias Party Attorney

Original Charge 265/18C/A-0 HOME INVASION c265 §18C (Felony)Indicted ChargeAmended Charge

Charge DispositionDisposition DateDisposition03/01/2006Guilty Verdict

Party InformationCommonwealth - Prosecutor

More Party Information

Putnam, Steven - Defendant


Harvard PD - Other interested party


Party Charge InformationPutnam, Steven - Defendant

Charge # 1 :265/18C/A-0 - Felony HOME INVASION c265 §18C

Putnam, Steven - DefendantCharge # 2 :

Massachusetts Trial Court 4 http://www.masscourts.org/eservices/;jsessionid=93FABC81B8A1...

1 of 15 6/28/18, 2:40 PM

Merritt Schnipper

1

Original Charge 265/18A-0 ASSAULT IN DWELLING, ARMED c265§18A (Felony)

Indicted ChargeAmended Charge


Original Charge 265/22/B-2 RAPE, AGGRAVATED c265 §22(a)(Felony)


Charge DispositionDisposition DateDisposition03/01/2006Guilty Verdict - Lesser Included

Original Charge 265/13A/B-1 A&B c265 §13A(a) (Misdemeanor - morethan 100 days incarceration)



265/18A-0 - Felony ASSAULT IN DWELLING, ARMED c265 §18A


265/22/B-2 - Felony RAPE, AGGRAVATED c265 §22(a)


265/13A/B-1 - Misdemeanor - more than 100 days incarceration A&B c265 §13A(a)

Events

Date Session Location Type Event Judge Result

05/13/2004 09:00AM

Criminal 1 Arraignment Held asScheduled

06/07/2004 09:00AM

Criminal 1 Pre-Trial Conference Held asScheduled

06/21/2004 09:00AM


06/30/2004 09:00AM


07/09/2004 09:00AM


08/04/2004 09:00AM


08/24/2004 09:00AM

Criminal 1 Pre-Trial Conference Rescheduled


2 of 15 6/28/18, 2:40 PM

Merritt Schnipper

2


10/07/2004 09:00AM


10/07/2004 09:00AM

Criminal 1 Non-Evidentiary Hearing Held asScheduled

11/08/2004 09:00AM

Criminal 1 Jury Trial Canceled

11/08/2004 09:00AM

Criminal 1 Status Review Held asScheduled

11/22/2004 09:00AM


11/29/2004 09:00AM


01/31/2005 09:00AM


03/23/2005 09:00AM


05/23/2005 09:00AM


07/28/2005 09:00AM


09/26/2005 09:00AM


10/14/2005 09:00AM

Criminal 1 Evidentiary Hearing toDismiss

Held asScheduled

11/16/2005 09:00AM

Criminal 1 Final Pre-Trial Conference Held asScheduled

11/29/2005 09:00AM

Criminal 1 Hearing Held asScheduled

12/08/2005 08:50AM

Criminal 1 Jury Trial Canceled

12/08/2005 09:00AM


01/18/2006 09:00AM

Criminal 1 Final Pre-Trial Conference Held asScheduled

02/24/2006 08:50AM

Criminal 1 Jury Trial Not Held

02/27/2006 08:50AM

Criminal 2 Jury Trial Held asScheduled

02/27/2006 08:50AM

Criminal 1 Jury Trial Not Held

02/28/2006 08:50AM


03/01/2006 08:50AM


03/03/2006 09:00AM

Criminal 2 Hearing for SentenceImposition

Held asScheduled

11/18/2016 09:00AM

Civil / CriminalTrials

WOR-4th FL, CR19(SC)

Motion Hearing Tucker, Hon. RichardT

Rescheduled


3 of 15 6/28/18, 2:40 PM

Merritt Schnipper

3


11/21/2016 09:00AM


Motion Hearing Held asScheduled

11/21/2016 11:00AM

Criminal 1 WOR-3rd FL, CR 18(SC)

Motion Hearing Rescheduled

12/16/2016 09:00AM



Conference to ReviewStatus

Tucker, Hon. RichardT

Held asScheduled

02/22/2017 09:00AM




Rescheduled

02/24/2017 09:00AM



Rescheduled

02/24/2017 09:00AM




Not Held

03/10/2017 10:00AM




Held asScheduled

04/27/2017 10:00AM





Held asScheduled

04/27/2017 10:00AM




Not Held

06/09/2017 09:00AM




Held asScheduled

07/07/2017 09:00AM




Held asScheduled

08/11/2017 09:00AM




Rescheduled

12/11/2017 09:00AM




Held asScheduled

03/09/2018 09:00AM

Criminal 1 Motion Hearing Held asScheduled

05/14/2018 09:00AM

Criminal 1 Motion Hearing Kenton-Walker, Hon.Janet

Held asScheduled

Ticklers

Tickler Start Date Due Date Days Due Completed Date

Status Review 12/11/2017 09/28/2018 291

Under Advisement 05/14/2018 06/13/2018 30 05/29/2018

Docket Information

DocketDate

Docket Text FileRefNbr.

ImageAvail.

04/16/2004 Indictment returned 1

05/13/2004 Deft arraigned before Court (Fecteau,J)

05/13/2004 Bail set: $1,000,000.00 surety or $100,000.00 cash with out prejudice

05/13/2004 Committee for Public Counsel Services appointed, pursuant to Rule 53


4 of 15 6/28/18, 2:40 PM

Merritt Schnipper

4

DocketDate


ImageAvail.

05/13/2004 RE Offense 1:Plea of not guilty




08/24/2004 Pre-trial conference report filed --Approved by Court, (Fahey,Justice)

2

08/24/2004 Motion by Deft: For Discovery--ALLOWED by Agreement (Fahey, Justice) 3

10/05/2004 Hospital records from Emerson Hospital Concord, MA 01742 received#17991 (Counsel may view only - no copies)- Fishman,J.

10/07/2004 Appointment of Counsel Robert A Delle, pursuant to Rule 53

10/07/2004 Motion by Commonwealth: Commonwealth's Response to Defendent's Motionfor Discovery

4

10/07/2004 Motion by Commonwealth: For Reciprocal Discovery 5

10/07/2004 Motion and Affidavit to Withdraw as Counsel ----ALLOWED (Fishman,Justice)

6

09/26/2005 Motion by Deft: Motion to Dismiss with Affidavit in Support of 7

10/14/2005 Hearing on (P#7 - Motion to Dismiss) held, matter taken underadvisement (Kern,J.)

10/14/2005 Commonwealth files Opposition and Memorandum of Law in Response tothe Defendant's Motion to Dismiss Indictment

8

10/17/2005 Motion (P#7) Denied Pages 12-13 of the Grand Jury Minutes indicatethat the alleged victim was unaware at the time she allowed thedefendant to enter her home, that he had a knife. See Commonwealth vMahar, 430 Mass 643,652 (2000). The evidence presented to the GrandJury was sufficient. Comm v McCarthy, 365 Mass 160 (1982) (Kern,Justice). Copies mailed to DA and Atty

11/16/2005 Commonwealth files Joint Pretrial Memorandum -(APPROVED) (McIntyre, J) 9

11/16/2005 Commonwealth files Certifcate of Compliance -(APPROVED)(McIntyre, J) 10

12/21/2005 Commonwealth files List of Expert Witnesses 12

01/18/2006 Commonwealth files Pre-Trial Memorandum 13

02/27/2006 Motion by Deft: For Voir Dire Questions and Individual Voir Dire 14

02/27/2006 Motion by Deft: In Limine -(DENIED)(Fecteau, J) 15

02/27/2006 Commonwealth files and Defendant files Stipulation Regarding Evidencefound in Defendant's House

16

02/27/2006 Motion by Deft: To Sequester -(ALLOWED by Agreement) (Fecteau, J) 17

02/27/2006 Exhibits recieved and are located up in attic wall

02/28/2006 Motion by Deft: For Requiring finding of not Guilty at Close ofEvidence -(DENIED) (Fecteau, J)

18

02/28/2006 Motion by Deft: For Jury Instructions 19

02/28/2006 Motion by Deft: For Requied Finding of not Guilty at Close ofCommonwealth Case -(DENIED After Hearing) (Fecteau, J)

20

03/01/2006 RE Offense 1:Guilty verdict


03/01/2006 RE Offense 3:Guilty verdict (lesser offense) Rape 265/22(a)


5 of 15 6/28/18, 2:30 PM

Merritt Schnipper

5

DocketDate


ImageAvail.


03/03/2006 Defendant sentenced to Offense #1) Twenty(20) to Twenty Five(25)years Cedar Junction/ Offense #2 Twenty(20) to Twenty Five yearsCedar Junction concurrent with 04-666(1)/ Offense #3 Eighteen(18) toTwenty(20) years Cedar Junction concurrent with 04-666(1)/ Offense #4Probation Five(5) years from + after sentence imposed on 04-666(1)(Fecteau,Justice )

03/03/2006 By Defendant Counsel to Withdraw -)(ALLOWED with exception of anyrepresentation before thw Superior Court Appellate Division (Fecteau,J)

21

03/03/2006 Motion by Deft: For Appointment of Appellate Counsel (Allowed)(Fecteau, J)

22

03/03/2006 Motion by Deft: For Judgement not withstanding the Verdict (Denied)(Fecteau, J)

23

03/03/2006 Notified of right of appeal under Rule 64 24

03/03/2006 Defendant is subject to the following special conditions: MentalHealth Evaluation Treatment, Drug and Alcohol Evaluation Treament,Sex Offender Treatment at DIrection of P.D. Stay Away + No Contactwith Victim or Witness (Fecteau, J)

03/03/2006 Sentence credit given as per 279:33A: 767 days (Fecteau, J)

03/03/2006 Sentence stayed until 3/6/2006 (Fecteau, J)

03/03/2006 Victim-witness fee assessed: $90.00 (Fecteau, J)

03/03/2006 Probation supervision fee assessed: $65.00 (Fecteau, J)

03/03/2006 NOTICE of APPEAL FILED by Steven M Putnam 25

03/06/2006 Court Reporter Pender, Claire is hereby notified to prepare one copyof the transcript of the Non Evidentiary Counsel of 10/7/04 BeforeJudge Fishman

26

03/06/2006 Court Reporter Kaye, Judith is hereby notified to prepare one copy ofthe transcript of the Evidentiary Dismiss of 10/14/2005, Before JudgeKern.

27

03/06/2006 Court Reporter Witaszek, Jennifer is hereby notified to prepare onecopy of the transcript of the Trial of 2/27/06, 2/28/2006, 3/1/06,and 3/3/06 Before Judge Fecteau

28

03/10/2006 Notice of appeal from sentence to Cedar Junction MCI (Walpole) filedby Steven M Putnam

29

03/10/2006 Letter transmitted to the Appellate Division. All parties notified3/10/2006

30

03/20/2006 Motion by Deft: For Appointment of Appellate Counsel with Affidavitof Indigency

31

03/20/2006 NOTICE of APPEAL FILED by Steven M Putnam (See Paper #25) 32

03/20/2006 Motion by Deft: For Leave to File Late Appeal from Sentence withAffidavit in Support of

33

03/20/2006 Motion (P#31) Previously Allowed see Docket Entry of 3/3/06 on P#22(Fecteau, J). Copies mailed 3/21/2006 to defendant

03/20/2006 Regarding P#33 - Notice of Sentence Appeal has already been docketed.See entry of 3/10/06 on P#.29 (Fecteau, J)

34

03/23/2006 Victim-witness fee paid as assessed $90.00


6 of 15 6/28/18, 2:30 PM

Merritt Schnipper

6

DocketDate


ImageAvail.

03/27/2006 Motion by Deft: For Appointment of Appellate Counsel with Affidavitof Indigency

35

03/27/2006 Motion by Deft: To Waive Fee's with Affidavit of Indigency 36

03/28/2006 Regarding P#35 - No Action Necessary as it was Previously Allowed(Fecteau, J)

03/28/2006 Motion (P#36) Denied for Insufficient Evidence of Hardship (Fecteau,J). Copies mailed

04/04/2006 Motion by Deft: To Waive Fees (Victim Witness & Appointment ofCounsel)

37

04/06/2006 Motion (P#37) Denied for insufficient cause stated, since indigencyis not sufficient to support a finding of severe hardship (Fecteau,Justice). Copies mailed to defendant

04/11/2006 Motion by Deft: For Free Transcripts of Trial for Appeal 38

04/11/2006 Regarding P#38 Copies of transcripts will be provided the appellatecounsel of the defendant without a charge, once he or she isappointed (Fecteau, J)

05/02/2006 Appointment of Counsel Edward B Fogarty, pursuant to Rule 53 (ForDirect Appeal)

31

05/02/2006 Defendant files motion to revise and revoke sentence with affidavitin support of

39

05/03/2006 Copy of Motion to Revise and Revoke sent to Judge Fecteau inSpringfield (Hampden Superior )

05/23/2006 Motion by Deft: Motion to Dismiss Appointed Counsel and to AppointNew Counsel

40

05/30/2006 Copy of P#40 Sent to Judge Fecteau in Springfield (Hampden SuperiorCourt)

06/09/2006 Motion (P#40) The issue involved in a sentence appeal, as in a motionto revise and revoke a sentence are narrow and discreet issues andthat trial counsel is in the best position to represent the defendantat both proceddings. I decline to appoint other counsel for thesehearings; if any (Fecteau, Justice). Copies mailed to defendant andatty

07/07/2006 Transcript of testimony received One(1) volume from court reporter,Pender, Claire of Motion to Withdraw on October 7, 2004

07/31/2006 Transcript of testimony received One(1) volume of Transcript ofProceedings on October 14, 2005 from court reporter, Kaye, Judith

10/19/2006 MOTION by Deft: For Reconsideration of Appointment of Counsel forSentence Appeal -(ALLOWED)(Agnes, J)

41

12/01/2006 Committee for Public Counsel Services appointed, pursuant to Rule 53-(David Keighley -Direct Appeal_

42

01/25/2007 MOTION by Deft: For all Crime Scene Photos Relating to Case 44

04/23/2007 Transcript of testimony received One volume of each 2/27/2006 JuryTrial, 2/28/06 Jury Trial, 3/1/06 Jury Trial, 3/3/06 Sentencing fromcourt reporter, Witaszek Jennifer

06/14/2007 Statement of the case on Appeal (Cover Sheet) 45

06/14/2007 Notice of assembly of record; mailed to Appeals Court per Rule 9(d) 46

06/14/2007 Notice of completion of assembly of record sent to clerk of AppealsCourt and attorneys for the Commonwealth and defendant.


7 of 15 6/28/18, 2:30 PM

Merritt Schnipper

7

DocketDate


ImageAvail.

06/21/2007 Re: No.2007-P-0958. Notice of Entry. In accordance with MassachusettsRule of Appellate Procedure 10(a)(3), please note that theabove-referenced case was entered in this Court on 6/19/07

47

07/06/2007 Appointment of Counsel Julie Ann Boyden, pursuant to Rule 53 (ForDirect Appeal)

48

01/14/2008 Re: No 2007-P-0958 - Notice of Docket Entry - Please take note thatwith respect to the Motion to stay the proceedings, filed by StevenM. Putnam, On January 10, 2008 the following order was entered on thedocket of the above-reference case: RE#9: Appellate is granted leaveto file motion for new trial in the trial court. Appellateproceedings stayed to 2/11/08. Status report to b filed on or beforethat date supported by affidavit of counsel that a motion has beenfiled in the trial court.

49

07/02/2008 Sentence Appeal: Withdrawn by Steven M Putnam 50

09/03/2008 Re: No. 2007-P-0958- Notice of Entry -Please take note that, withrespect to the Motion to reinstate the appeal filed by Steve MPutnam(Paper #12) on September 2, 2008, the following order wasentered on the docket of the above-referenced case; Revise ActionRe#12: the motion to reinstated appeal is allowed and appeal isreinstated this date. Proceeding stayed to 9/30/08. Status report tobe filed on or before that date as to how defendant wishes toproceed. (Cypher, Kantrowitz & Wolohjian, JJ)

52

01/13/2009 Copy of P#39 sent to Atty per request

12/09/2009 Rescript received from Appeals Court; judgment AFFIRMED 53

02/02/2010 Defendant files MOTION to revise and revoke sentence with affidavitin support of (doesn't request hearing yet)

54

06/06/2011 MOTION by Deft: To Preserve Evidence of Official Records and TrialExhibits (Sent to Judge Agnes)

56

06/07/2011 Re: P#56 - The office of the DA shall have until June 24, 2011 torespond in writing if opposes the motion. Meanwhile any trialexhibits in this case shall be returned by the Clerk (Agnes, J)

57

09/14/2011 Defendant's motion for new trial (Sent to Lemire, J) 58

09/16/2011 MOTION (P#58) This motion is assigned to Judge Kenton-Walker (JamesR. Lemire, Justice).

09/20/2011 MOTION (P#58) Commonwealth is given 30 days to file any response(Kenton-Walker, Justice). Copies mailed 9/21/2011

10/21/2011 Commonwealth files Memorandum in Opposition to Defendant's Motion fora New Trial

59

11/22/2011 MOTION (P#58) Denied (Janet Kenton-Walker, Justice). Copies mailed

11/22/2011 MEMORANDUM OF DECISION & ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL:For the foregoing reasons, the defendant's Motion for New Trial, inall respects, DENIED 11/22/2011, (Janet Kenton-Walker, Justice)

60

12/22/2011 NOTICE of MOTION APPEAL FILED by Steven M Putnam 61




01/26/2012 Notice of Entry of appeal received from the Appeals Court 64


8 of 15 6/28/18, 2:30 PM

Merritt Schnipper

8

DocketDate


ImageAvail.

05/13/2013 Rescript received from Appeals Court; judgment AFFIRMED Order DenyingMotion for New Trial Affirmed (Stanton, Clerk)

65

02/07/2014 MOTION by Deft: (pro-se)Pursuant to GL 278A sec 3: Post ConvictionAccess to Forensic and Scientific Analysis with "facts" and GJMinutes in support of (sent to Judge Lemire 3/7/14)

67

02/28/2014 MOTION by Deft: (pro-se) for New Trial ..with Memorandum in Support of 66

03/07/2014 ORDERED: ORDER in RE:(p#66) Defendant's Motion for New Trial- theDefendant, Steven Putnam, has filed a Motion for a new trial underMass. Rules of Criminal Procedure 30(b). The District Attorney shallfile any response in writing on or before April 11, 2014. Because thetrial Judge is not available to hear this matter, the case isassigned to Judge David Ricciardone for any action he may deemappropriate. (Lemire, J, (RAJ)) copies mailed to DA and Defendant3/10/14

68

03/14/2014 ORDERED:(RE:p#67) Commonwealth shall have until 4/15/14 to file anyoppostion (James R. Lemire, RAJ) copies mailed 3/14/15

04/04/2014 Commonwealth files Memorandum in Opposition to Defendant's SecondMotion for a New Trial

69

04/04/2014 Commonwealth files Memorandum in Opposition to Defendant's PostConviction Motion for Scientific/Forensic Analysis

70

04/24/2014 MOTION (P#66) Denied. The fact that the defendant ignores theevidence of the digital penetration presented to the jury (trialtranscript pp. 1-196, 1-216-219) does not negate its existence. Therewas no injustice. Accordingly, this motion is DENIED without ahearing (Ricciardone, J). Copies mailed to DA & Atty

04/24/2014 MEMORANDUM OF DECISION AND ORDER ON MOTION FOR FORENSIC ANDSCIENTIFIC ANALYSIS (P. #67): Therefore, this motion does not meetthe requirements of the statute and is DISMISSED without a hearingG/L/c 278A 3(e)(James R. Lemire, RAJ) copies mailed to DA & Defendant

71

05/09/2014 NOTICE of Motion APPEAL FILED by Steven M Putnam 72





10/02/2015 Defendant 's Motion for New Trial and Affidavit (Given to Judge Tucker) 76

10/07/2015 ORDER: in re: Deft's Motion for New TrialBecause the trial judge is not available to hear this matter, the case is assigned to Judge Shannon Frison for any action she may deem appropriate. (Case given to Judge Frison)

77

12/11/2015 Endorsement on Motion for New Trial, (#76.0): DENIEDAfter review, this motion is DENIED; See accompanying Memorandum of Decision.

12/11/2015 The following form was generated:A Clerk's Notice was generated and sent to:Defendant: Steven PutnamAttorney: Donna Marie Haran, Esq.Holding Institution: MCI - Cedar Junction (at Walpole)

12/11/2015 MEMORANDUM & ORDER:

For the foregoing reasons, it is hereby ORDERED that the defendant's Motion for New Trial is DENIED.

78 Image


9 of 15 6/28/18, 2:30 PM

Merritt Schnipper

9

DocketDate


ImageAvail.

12/28/2015 Notice of appeal filed (Motion for New Trial, Judge Frison)

Applies To: Putnam, Steven (Defendant)

79

04/06/2016 Statement of Case Appeal filed: 80

04/06/2016 Appeal: notice of assembly of record 81


05/18/2016 Rescript received from Appeals Court; judgment AFFIRMED Order denying the motion for new trial affirmed..

83

07/25/2016 Defendant 's Motion for Post Conviction Access to Forensic and Scientific Analysis; Affidavit in Support

84

08/02/2016 ORDER: re: Deft's Motion for Post-Conviction Access to Forensic and Scientific Analysis...Becase the trial judge is not available to hear this matter, the case is assigned to Judge Richard T. Tucker for any action he may deem appropriate.

85

08/02/2016 ORDER: re: Motion for Post Conviction Access to Forensic and Scientific Analysis...if the Commonwealth wishes to respond to this motion addressing the sole issue of whether the motion meets the requirements under G. L. c.278A, s3(e), the Commonwealth shall do so within 10 days of this Order. If the Commonwealth does not intend to file a response at this stage, Asst. Clerk, Gail Dempsey should be notified.

So Ordered.

86


09/06/2016 ORDER: on Defendant's Motion for Post-Conviction Access to Forensic and Scientific AnalysisCommonwealth has 60 days to respond.

87 Image


10/05/2016 Opposition to Defendant's Motion for Post-Conviction Forensic Analysis (p#84) filed by Commonwealth

88

10/14/2016 Pro Se Defendant 's Motion for Appointment of Counsel with Affidavit of Indigency 89

10/17/2016 The following form was generated:

Notice to AppearSent On: 10/17/2016 08:36:36

10/17/2016 Habeas Corpus for defendant issued to MCI - Norfolk returnable for 11/18/2016 09:00 AM Motion Hearing.

10/17/2016 Endorsement on Motion for Post Conviction Access to Forensic and Scientific Analysis, (#84.0): Other action takenThe Commonwealth having filed its written response, a hearing under G.L. 278A, §6 shall be held on November 18, 2016 in Courtroom 19 at 9:00AM.

(endorsement written on Order, p#87)

10/17/2016 The following form was generated:A Clerk's Notice was generated and sent to:Defendant: Steven PutnamAttorney: Donna Marie Haran, Esq.Holding Institution: MCI - Norfolk


10 of 15 6/28/18, 2:30 PM

Merritt Schnipper

10

DocketDate


ImageAvail.

10/18/2016 Endorsement on Motion for Appointment of Counsel, (#89.0): Other action takenThis motion shall be referred to CPCS for its review.

11/08/2016 Event Result:The following event: Motion Hearing scheduled for 11/18/2016 09:00 AM has been resulted as follows: Result: Rescheduled Reason: By Court prior to date



11/08/2016 Habeas Corpus for defendant issued to MCI - Norfolk returnable for 11/21/2016 11:00 AM Motion Hearing. Please cancel habe scheduled for 11/18/16



11/21/2016 Event Result:The following event: Motion Hearing scheduled for 11/21/2016 11:00 AM has been resulted as follows: Result: Rescheduled Reason: Transferred to another session



11/21/2016 Event Result:The following event: Motion Hearing scheduled for 11/21/2016 09:00 AM has been resulted as follows: Result: Held as ScheduledCourt Reporter Susan Garvin

11/21/2016 Habeas Corpus for defendant issued to MCI - Norfolk returnable for 12/16/2016 09:00 AM Conference to Review Status.

12/16/2016 Event Result:The following event: Conference to Review Status scheduled for 12/16/2016 09:00 AM has been resulted as follows: Result: Held as Scheduled

12/16/2016 Defendant 's Supplemental Motion for post-conviction testing 90

01/17/2017 General correspondence regarding Letter from CPCS-After reviewing the Defendant's motion, his case, and other related materials, CPCS has decided not to appoint counsel for litigation under Chapter 278A in the Defendant's matter.

91

02/22/2017 Event Result:The following event: Conference to Review Status scheduled for 02/22/2017 09:00 AM has been resulted as follows: Result: Rescheduled Reason: By Court prior to date

02/23/2017 Event Result:The following event: Conference to Review Status scheduled for 02/24/2017 09:00 AM has been resulted as follows: Result: Rescheduled Reason: By Court prior to date

02/24/2017 Event Result:The following event: Conference to Review Status scheduled for 02/24/2017 09:00 AM has been resulted as follows:


11 of 15 6/28/18, 2:30 PM

Merritt Schnipper

11

DocketDate


ImageAvail.

Result: Not Held Reason: Defendant not transported to event




04/24/2017 Rescript received from Appeals Court; judgment REVERSED The order denying the motion for a new trial is vacated, and the motion is to be treated as not acted upon and awaiting determination by the Superior Court.-Copy of rescript sent to Judge Tucker on 4/24/17

92

04/27/2017 Event Result:The following event: Conference to Review Status scheduled for 04/27/2017 10:00 AM has been resulted as follows: Result: Not Held Reason: Transferred to another session



05/11/2017 Pro Se Defendant 's Motion for Post-Conviction relief pursuant to Superior Court Rule 61A 93

05/26/2017 Pro Se Defendant 's Motion for the Appointment of Counsel, or, in the alternative to Compel the Commonwealth to Test the Biologicals Pursuant to Chapter 278A

94

06/09/2017 Event Result:The following event: Conference to Review Status scheduled for 06/09/2017 09:00 AM has been resulted as follows: Result: Held as ScheduledFTR Room 19


06/13/2017 ORDER: Defendant's Motion for New TrialIt is hereby ORDERED that the Defendant's motion for new trial is DENIED

95 Image

06/13/2017 The following form was generated:A Clerk's Notice was generated and sent to:Defendant: Steven PutnamAttorney: Donna Marie Haran, Esq.

06/13/2017 Pro Se Defendant 's Motion to Revise and Revoke 96

06/13/2017 Affidavit filed by Defendant Steven Putnam in support ofMotion to Revise and Revoke

96.1

06/28/2017 Notice of appeal filed.Motion for New Trial DENIED (Frison, J)


97



12 of 15 6/28/18, 2:30 PM

Merritt Schnipper

12

DocketDate


ImageAvail.

FTR Room 10


08/10/2017 Event Result:The following event: Conference to Review Status scheduled for 08/11/2017 09:00 AM has been resulted as follows: Result: Rescheduled Reason: Court Order

12/11/2017 Event Result:Judge: Tucker, Hon. Richard TThe following event: Conference to Review Status scheduled for 12/11/2017 09:00 AM has been resulted as follows: Result: Held as ScheduledStaff Appeared:Court Reporter Witaszek, Jennifer M


98

02/05/2018 Defendant Merritt Spencer Schnipper, Esq.'s Motion to Stay and Status Report 99

03/09/2018 Event Result:Judge: Wrenn, Hon. Daniel MThe following event: Motion Hearing scheduled for 03/09/2018 09:00 AM has been resulted as follows: Result: Held as Scheduled




Judge: Wrenn, Hon. Daniel M

100

03/09/2018 Endorsement on Motion to Stay Proceedings and Status Report, (#99.0): DENIEDwithout prejudice

Judge: Wrenn, Hon. Daniel M

04/25/2018 Defendant 's Motion for Discovery pursuant to G.L. c 278, §3(c) 101

04/25/2018 Steven Putnam's Memorandum in support ofPreviously Filed Pro-Se Motion for Forensic Testing pursuant to G.L. c 278A (Supplemental)

102

05/07/2018 Defendant 's Motion to Withdraw Habeas Corpus (JKW) 103

05/07/2018 Affidavit filed by Defendant Steven Putnam in support ofMotion to Withdraw Habeas Corpus

103.1

05/08/2018 Endorsement on Motion to Withdraw Habeas Corpus Issued to MCI Norfolk, (#103.0): ALLOWED

Judge: Kenton-Walker, Hon. Janet

05/10/2018 The following form was generated:A Clerk's Notice was generated and sent to:Attorney: Merritt Spencer Schnipper, Esq.Attorney: Donna Marie Haran, Esq.

05/11/2018 Commonwealth 's Response to Defendant's Supplemental Memorandum in Support of His Previous Pro-Se Motion for Post-Conviction Forensic Testing and Motion for Discovery

104 Image


13 of 15 6/28/18, 2:30 PM

Merritt Schnipper

13

DocketDate


ImageAvail.

05/14/2018 Matter taken under advisementJudge: Kenton-Walker, Hon. JanetThe following event: Motion Hearing scheduled for 05/14/2018 09:00 AM has been resulted as follows: Result: Held - Under advisement

05/29/2018 Endorsement on Motion for Post-Conviction Access to Forensic and Scientific Analysis, (#84.0): DENIEDAfter thorough review of the respective pleadings, the history of this case - particularly post-conviction motions and decisions- and following a hearing and review of the relevant law, the defendant's motion is DENIED. The defendant's motion and affidavits do not meet the requirements of c. 278A, §3(b)(4) in that defendant has not met his burden to show whether any test results could be material to the question of identity of the perpetrator. Here the issue is not identity, but whether a crime occurred. Defendant is not entitled to relief. For these reasons and as stated in Commonwealth's memo the defendant's motion is DENIED.


Image

05/29/2018 Pro Se Defendant 's Motion for Finding of Fact and Rulings of Law (re: Motion to Revise and Revoke 6/7/17; p#)


105

05/30/2018 The following form was generated:A Clerk's Notice was generated and sent to:Attorney: Merritt Spencer Schnipper, Esq.Holding Institution: MCI - Norfolk

05/31/2018 Endorsement on Motion for Findings of Fact and Rulings of Law, (#105.0): DENIEDas the motion was not timely filed. See pleading #96


05/31/2018 Endorsement on Motion to Revise and Revoke, (#96.0): DENIEDThis motion is not timely filed.


06/01/2018 The following form was generated:A Clerk's Notice was generated and sent to:Defendant: Steven Putnam

06/01/2018 The following form was generated:A Clerk's Notice was generated and sent to:Defendant: Steven Putnam

06/04/2018 Notice of appeal filed.

On the Court's May 29, 2018 Order Denying his Motion for a Forensic Testing Pursuant to G.L. c278 3 May 31, 2018


106 Image

06/07/2018 Appeal: Statement of the Case on Appeal (Cover Sheet). 107

06/07/2018 Notice to Clerk of the Appeals Court of Assembly of Record

06/07/2018 Appeal: notice of assembly of record sent to Counsel


108

06/18/2018 Defendant 's Motion for Reconsideration with Supplemental Motion to Revise and Revoke Sentence (Judge Kenton-Walker)

109

06/25/2018 Endorsement on Motion for Reconsideration with Supplemental Motion to Revise and Revoke, (#109.0): Other action takenCommonwealth has 60 days to file a responsive pleading.


14 of 15 6/28/18, 2:30 PM

Merritt Schnipper

14

DocketDate


ImageAvail.


06/26/2018 The following form was generated:A Clerk's Notice was generated and sent to:Attorney: Merritt Spencer Schnipper, Esq.Attorney: Donna Marie Haran, Esq.

Case Disposition

Disposition Date Case Judge

Disposed by Jury Verdict 05/23/2014


15 of 15 6/28/18, 2:30 PM

Merritt Schnipper

15

Merritt Schnipper

16

Merritt Schnipper

17

Merritt Schnipper

18

Merritt Schnipper

19

Merritt Schnipper

20

Merritt Schnipper

21

Merritt Schnipper

22

1

COMMONWEALTH OF MASSACHUSETTS WORCESTER, S.S. TRIAL COURT OF THE COMMONWEALTH WORCESTER SUPERIOR COURT ) COMMONWEALTH OF MASSACHUSETTS ) ) v. ) 0485CR00666 ) STEVEN PUTNAM ) )

DEFENDANT’S SUPPLEMENTAL MEMORADUM IN SUPPORT OF HIS PREVIOUSLY-FILED PRO SE MOTION FOR FORENSIC TESTING

PURSUANT TO G.L. c.278A Defendant Steven Putnam, through counsel, hereby

supplements his Pro Se Motion for Post-Conviction Access to

Forensic and Scientific Analysis (Paper #84, “Pro Se

Motion”) and Supplemental Motion for Post-Conviction

Testing (Paper #90, “Pro Se Supplement”) with the following

Memorandum of Law. This Memorandum, together with the

Defendant’s pro se filings, makes out a prima facie case of

entitlement to post-conviction forensic testing under G.L.

c.278A §3.

Concurrently with this filing the Defendant has

submitted a motion for discovery pursuant to G.L. c.278A

§(c) (“Discovery Motion”) intended to enable him to make

the necessary presentation at an evidentiary hearing

conducted pursuant to the standards of G.L. c.278A §7.

Merritt Schnipper

23

2

1. The Defendant Seeks Mitochondrial, Autosomal, or YSTR Analysis of the Evidence in Question

G.L. c.278A §3(b)(1) requires a Defendant to state

“the name and a description of the requested forensic or

scientific analysis.” As stated in the Pro Se Motion, Mr.

Putnam “sees DNA (deoxyribonucleic acid) testing…and/or

Touch DNA, and or Orthotolodine, Tachyama, blood testing.”

Pro Se Motion at 2. As set forth in the Affidavit of Eric

Carita (“Carita Affidavit”) at ¶17, the DNA testing

Defendant seeks is more particularly described as

mitochondrial, autosomal, or YSTR (male-specific) DNA

testing.

2. The Results of DNA Testing Are Admissible as Evidence in the Courts of the Commonwealth

G.L. c.278A §3(b)(2) requires a Defendant to provide

“information demonstrating that the requested analysis is

admissible as evidence in courts of the commonwealth.” As

stated in the Pro Se Motion, the relevant information “is

delineated in the official record of the transcripts,

designated herein as Appendices 1-15, as these Exhibits

were admitted at the defendant’s trial to convict him.” Pro

Se Motion at 2. The Exhibits to the Pro Se Motion reference

“blood” (Ex. 3); “handler DNA” (Ex. 8); “DNA tests” and a

“DNA sample” (Ex. 11); and “DNA analysis” (Ex. 13).

Merritt Schnipper

24

3

More than twenty years ago, the Supreme Judicial Court

“held for the first time that results of certain DNA

testing met the test of scientific reliability and were

therefore admissible” in Massachusetts courts. Commonwealth

v. Wade, 467 Mass. 496, 506 & n.12 (2014) (noting, in the

context of addressing a c.278A motion, “the Commonwealth

does not dispute” the admissibility of DNA testing and

citing Commonwealth v. Vao Sok, 425 Mass. 787, 800-01

(1997)). More specifically, results of “Y-STR DNA testing,

[in which] the analyst separates male DNA from female DNA,

and examines loci found exclusively on the male Y-

chromosome” is admissible in the courts of the

Commonwealth. See Commonwealth v. Sanchez, 476 Mass. 725,

729 & n.5 (2017) (discussing results of YSTR testing).

Mr. Carita, the Defendant’s DNA expert, has “testified

in multiple states as an expert as part of criminal

investigations concerning DNA evidence collected, tested,

and reported.” Carita Affidavit at ¶1.

3. The Defendant Seeks Testing of Clothing and a Sexual Assault Kit Collected By Police and Which Are Currently Stored in the Superior Court Clerk’s Office

G.L. c.278A §3(b)(3) requires a Defendant to provide

“a description of the evidence or biological material that

the moving party seeks to have analyzed or tested,

including its location and chain of custody if known”

Merritt Schnipper

25

4

(emphasis added). The Supreme Judicial Court has held

“[t]his [‘if known’] language plainly suggest that there

may be instances when such information is not known to the

moving party, and this circumstance will not be an

impediment to satisfying §3(b)(3)” and that “describing the

current location of the [evidence sought to be tested] as

well as its chain of custody to the extent [a defendant]

ha[s] knowledge of the matter” is sufficient to meet this

requirement. Commonwealth v. Clark, 472 Mass. 120, 131

(2015).

In the Pro Se Motion the Defendant describes nine

items of clothing allegedly worn by the complaining witness

and removed from her body by Mr. Putnam during commission

of the crimes for which he stands convicted, and in the Pro

Se Supplement the Defendant describes a “Sexual Assault

Evidence Collection Kit.” Pro Se Motion at 2-3; Pro Se

Supplement at 1. In the Commonwealth’s Opposition to

Defendant’s Motion for Post-Conviction Forensic Analysis

(Paper #88, “Opposition”) at 9 and 12 the Commonwealth

states that the clothing items the Defendant seeks to test

“were sent to the Massachusetts State Crime Lab on January

27, 2004, and were returned to the Harvard Police

Department on February 18, 2005” and that since their use

at trial these items have been “stored in the Worcester

Merritt Schnipper

26

5

Superior Court Clerk’s Office.” These assertions are

supported by the Chain of Custody Report (“Report”)

attached to the Opposition as Exhibit C. With regard to the

Sexual Assault Evidence Collection Kit and related

Examination Form, the report shows it was collected the day

after the alleged crime and “Returned to Submitting Agency”

on February 21, 2006. Report at 4.

The foregoing information satisfies the Defendant’s

initial burden of describing the evidence he seeks to test

and providing the information known to him as to its

current location and chain of custody under G.L. c.278A

§3(b)(3). In the Discovery Motion filed concurrently with

this Memorandum, the Defendant seeks additional information

concerning, inter alia, the chain of custody of the

evidence he wishes to test. Responses to these discovery

requests are necessary to enable the Defendant to carry his

burden at an evidentiary hearing conducted pursuant to the

standards of G.L. c.278A §7.

4. Evidence Supporting the Defendant’s Claim He Was Falsely Accused of the Crimes of Which He Stands Convicted Is ‘Material to His Identification as the Perpetrator’ for Purposes of G.L. c.278A §3(b)(4)

G.L. c.278A §3(b)(4) requires a Defendant to set forth

“information demonstrating that the analysis has the

potential to result in evidence that is material to the

Merritt Schnipper

27

6

moving party's identification as the perpetrator of the

crime in the underlying case.” In the Pro Se Motion and

Supplement, the Defendant explains that the complaining

witness testified at trial that he ‘ripped’ her clothing

off, resulting in actual tears in her pants, whereas the

truth of their interaction is that “there was no sexual

contact, just romantic hugging and each party removing

their own clothing.” Pro Se Motion at 2-3; Pro Se

Supplement at 2. The Defendant was convicted of rape under

the theory that he digitally penetrated the complaining

witness’s vagina; the Defendant has sworn that this digital

penetration never occurred. See attached Supplemental

Affidavit of Steven Putnam Pursuant to G.L. c.278A §3(d).

Testing of the clothing the complaining witness was wearing

at the time of the alleged crimes and the rape test kit

performed in their aftermath for the Defendant’s DNA could

support his claims of innocence.

Whether c.278A provides access to forensic testing by

defendants who claim factual innocence on the basis of

false accusations by alleged victims who knew them at the

time of an alleged crime, rather than only in cases of

mistaken identification, is a question of first impression.

However, the Supreme Judicial Court’s prior cases

interpreting c.278A, as well as more generally applicable

Merritt Schnipper

28

7

canons of statutory construction, show the Legislature did

not intend to exclude this class of factual innocence

claimants from access to forensic testing and its

exculpatory power.

“[A] statute must be interpreted according to the

intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the

language, considered in connection with the cause of its

enactment, the mischief or imperfection to be remedied and

the main object to be accomplished.” Commonwealth v. Wade,

475 Mass. 54, 60 (2016) (“Wade III”) (quotation omitted).

The legislative purpose behind c.278A “was to remedy the

injustice of wrongful convictions of factually innocent

persons by allowing access to analyses of biological

material with newer forensic and scientific techniques [and

to] provide a more reliable basis for establishing a

factually correct verdict than the evidence available at

the time of the original conviction.” Id. at 55. “Given

[the Legislature’s] compelling interest in remedying

wrongful convictions of factually innocent persons,” the

Supreme Judicial Court has said c.278A should be construed

“in a manner that is generous to the moving party.” Clark,

472 Mass. at 136.

Merritt Schnipper

29

8

By its plain language, G.L. c.278A §3(b)(4)’s

materiality requirement does not relate solely to the

identification of an individual, but rather to that

person’s identification as “the perpetrator of the crime”

for which he or she was convicted. In the case of a moving

party who claims to have been falsely accused, his or her

theory of the case is premised on the idea that no crime

occurred at all, meaning there is no perpetrator who could

legitimately be identified, charged, and convicted; hence,

any evidence that tends to support this theory of factual

innocence is material to the moving party’s identification

as that term is used in c.278A. In this vein, it is notable

that the statute defines a “factually innocent” person as

one “convicted of a criminal offense who did not commit

that offense,” without any reference to mistaken

identification. G.L. c.278A §1.

The Supreme Judicial Court has called G.L. c.278A

§3(b)(4)’s materiality standard a “modest threshold

requirement” under which “it is necessary to consider only

whether the test results could be material to the question

of the identity of the person who committed the criminal

act of which the moving party was convicted.” Commonwealth

v. Wade, 467 Mass. 496, 507-08 (2014) (“Wade II”). In the

Defendant’s case, this materiality standard is satisfied by

Merritt Schnipper

30

9

the fact that testing of the Sexual Assault Evidence

Collection Kit for his YSTR (male-specific) DNA, if it

showed none was present, would support his claim to never

have digitally penetrated the complaining witness and that

there was no crime of rape he could be identified as having

perpetrated. Similarly, testing of the pants the Defendant

allegedly ripped from the complaining witness’s body so

forcefully that he tore their fabric for his ‘handler’ DNA,

if it showed none was present, would support his claim that

he did not attack the complaining witness but rather

participated with her in consensual “romantic hugging and

each party removing their own clothing,” supporting his

claim he neither sought to force the complaining witness to

submit to sex nor committed the crime of armed assault in a

dwelling. Pro Se Supplement at 2.

Though the Supreme Judicial Court has not directly

addressed the interpretation of G.L. c.278A §3(b)(4)

advanced by the Defendant, its most recent case on the

materiality requirement has emphasized a broad approach

consistent with the law’s remedial purpose. Thus, in

Commonwealth v. Moffatt the Court rejected the

“suggest[ion] that postconviction forensic testing under

G.L. c.278A is limited to direct evidence of the

perpetrator’s identity.” 478 Mass. 292, 301 (2017).

Merritt Schnipper

31

10

Instead, the Court emphasized a direct connection between

the crime of conviction and the evidence sought to be

tested, as well as assessment of each case based on “the

facts and circumstances of the crime.” Id. at 300-01.

Here, the evidence the Defendant seeks to test is

directly tied to the crimes of conviction, either because

it was gathered from the complaining witness’s body in the

aftermath of the alleged rape or because it was introduced

at trial under the theory that the Defendant handled it in

the course of assaulting her. Testing that has the

potential to support the Defendant’s claim he never

digitally penetrated the complaining witness and/or that he

did not forcefully remove and tear her clothing is thus

material to the determination of whether a crime occurred

and thus to his identification as that term is used in G.L.

c.278A §3(b)(4).

5. The Requested Analysis Has Not Previously Been Performed Because The Defendant’s Trial Counsel Did Not Seek the Analysis Even Though a Reasonably Effective Attorney Would Have

G.L. c.278A §3(b)(5) requires a Defendant, in relevant

part, to set forth “information demonstrating that the

evidence or biological material has not been subjected to

the requested analysis because… [inter alia] (iv) the

moving party's attorney in the underlying case was aware at

Merritt Schnipper

32

11

the time of the conviction of the existence of the evidence

or biological material, the results of the requested

analysis were admissible as evidence in courts of the

commonwealth, a reasonably effective attorney would have

sought the analysis [but] the moving party's attorney

failed to seek the analysis.” In the Pro Se Motion the

Defendant states that trial counsel “was aware of the

evidence presented and did not seek the analysis the

defendant now seeks, which a reasonably competent attorney

would have sought where his client was involved in a She-

said, He-said case, where without the forensic/scientific

analysis the defendant’s innocence would have been

forefront to the jury.” Pro Se Motion at 3. Trial counsel’s

awareness of the existence of the evidence and the

possibility of testing it is demonstrated by the exhibits

to the Pro Se Motion, which involve testimony about

potential DNA and other forensic testing on the evidence.

See Pro Se Motion Exhibits 8-11.

A reasonably effective attorney would have pursued DNA

testing of the materials in question to support the

Defendant’s claim not to have digitally penetrated the

complaining witness or forcefully removed her clothing. The

Supreme Judicial Court has emphasized that this analysis

“does not require that a defendant satisfy the general

Merritt Schnipper

33

12

ineffective assistance [of counsel] standard…but, rather,

that he or she demonstrate only that ‘a’ reasonably

effective attorney would have sought the requested

analysis, not that every reasonably effective attorney

would have done so.” Moffatt, 478 Mass. at 302 (quoting

Wade II, 467 Mass. at 511). This determination “is an

objective one,” and “a moving party is not required to

explain the tactical or strategic reasoning of the party’s

trial counsel in not seeking the requested analysis.” Id.

(quoting Wade III, 475 Mass. at 63).

At trial, Mr. Putnam’s defense was that he visited the

complaining witness’s home in emotional distress seeking

her comfort and counsel, and that the two engaged in brief

consensual kissing but not any genital contact. See

Defendant’s Affidavit in Support of Motion for New Trial,

attached as Exhibit D to Commonwealth’s Opposition, at ¶¶1-

13. DNA testing of the Sexual Assault Evidence Collection

Kit and the clothing Mr. Putnam allegedly forcefully

removed from the complaining witness’s body had the

potential to support this theory of the case for the same

reasons it is material to the Defendant’s identification as

the perpetrator of the crime for which he stands convicted.

See Moffatt, 478 Mass. at 302 (‘reasonably effective

attorney’ analysis informed by materiality analysis). Where

Merritt Schnipper

34

Merritt Schnipper

35

Merritt Schnipper

36

Merritt Schnipper

37

Merritt Schnipper

38

Merritt Schnipper

39

Merritt Schnipper

40

Merritt Schnipper

41

Merritt Schnipper

42

Merritt Schnipper

43

DEFENDANT’S APPLICATION FOR DIRECT APPELLATE REVIEW …

Documents

Transcript of DEFENDANT’S APPLICATION FOR DIRECT APPELLATE REVIEW …