The Supreme Judicial Court today ordered new hearings to determine whether a man convicted of killing 10-year-old Trina Persad in a Roxbury park in 2002 deserves a new trial in part because his lawyer represented a BPD homicide detective and lieutenant in a suit over another child-murder case.
A Superior Court judge had already ordered a new trial for Joseph Cousin, convicted in 2009 on a charge of second-degree murder, but the state's highest court ruled today that while Cousin's new lawyer had shown evidence suggesting a possible conflict of interest on attorney William White's part, he didn't show enough evidence to prove an actual conflict of interest - and that further hearings were needed by a superior-court judge to prove or disprove a conflict serious enough to warrant that new trial.
If Cousin does get a new trial, it would be his third for the death of the girl shot in the face with a shotgun. A Suffolk Superior Court jury deadlocked in the initial trial of him and another man charged with the girl's death. Then, after an appeal to the SJC on whether a new trial would prove to be double jeopardy - the court ruled it would not - a jury convicted him of second-degree murder, which carries a sentence of life with the possibility of parole after 15 years.
One issue was White's role in defending a BPD homicide detective and a lieutenant in a civil suit by Shawn Drumgold, whose conviction for the murder of Darlene Tiffany Moore, 12, as she sat on a Roxbury mailbox in 1989, was overturned after the Suffolk County District Attorney's office agreed evidence in the case was flawed. Drumgold received a $5-million settlement from the city in 2014.
The city paid White $310,000 for his work representing the detective and, after he was dropped from the suit, a BPD lieutenant.
White did not actively participate in a retrial of Drumgold's claim against the lieutenant in 2009, because it was scheduled for the same month as Cousin's before Cousin was due to face his second trial, but he never formally withdrew from the lieutenant's legal team - and in fact, said he would be available for additional work later should it be needed.
White had been appointed by the court to defend Cousin. Cousin's current lawyer said his client initially wanted to hire his own attorney, but agreed to have White represent him after a meeting at the Suffolk County jail - at which, the current lawyer said, White never disclosed he was also representing a BPD officer involved in another child-murder case.
Cousin's current lawyer also asked for a new trial because White's former partner, Frances Robinson, represented a BPD fingerprint expert in a lawsuit by Stephan Cowans, who spent five years in prison based in part by certification by the analyst that a fingerprint found on a water glass near where a Boston cop was shot with his own gun in Jamaica Plain belonged to Cowans and so placed him at the scene. It turned out she was wrong.
The analyst also linked a fingerprint used against Cousin to him, but a second expert then confirmed it was Cousin as well.
But all this is not enough evidence to prove an "actual" conflict of interest, the court concluded. The detective and lieutenant in the Drumgold case were not involved in the Cousin case; and even when they were partners, White and Robinson had a somewhat limited relationship - they shared office space and expenses but each ran their law business separately, the court said.
Although Cousin identifies certain aspects of White's representation that are concerning, and may implicate a potential conflict of interest, Cousin has failed to meet his burden of adducing sufficient, nonspeculative evidence to establish that White was burdened by an actual conflict of interest.
The court continued that at the new hearings, Cousin's attorney will have to bring "demonstrative proof detailing both the existence and the precise character of this alleged conflict of interest; we will not infer a conflict based on mere conjecture or speculation."