A man convicted of second-degree murder for the death of somebody standing at a bar in Quincy in 2015 will get a new trial after the Massachusetts Appeals Court ruled the prosecutor in the case asked him improper rhetorical questions during the trial and then went too far in calling him a "bully" several times during his closing arguments.
Although outrageous prosecutorial conduct is not necessarily a good enough reason to overturn a strong factual case, the court said, it overturned Paul Fahey's murder conviction because the condict might have been enough to bias the jury away from deciding the question of whether Keith Boudreau died from being punched to the floor or whether a subsequent head stomping by the guy who punched him was what killed him. And that could be the difference between a life sentence for murder or a maximum sentence of 20 years for manslaughter, because one doesn't expect to kill somebody by punching somebody, whereas when you stomp on an unconscious man's head, that might be enough evidence of murderous rage.
Fahey did not know Boudreau, but allegedly accused Boudreau of staring at him and possibly his girlfriednd when Boudreau walked into the Home Ice Sports Bar, looking for his own fiancee. According to the court's summary of the case:
It was uncontested that, at the time, the defendant weighed well more than 200 pounds and was wearing heavy work boots that had a patterned sole. One witness, Home Ice's owner, Gerard DeLuca, testified that he saw the boot come down on the side of Boudreau's head. The other witnesses saw the defendant stomp, but they did not see what part of Boudreau's body, if any, was hit. The witnesses at the scene described the sound that the boot made when it came down as a "thud" or a "crack."
Fahey's attorney attempted to prove that Fahey, in fact, didn't die from the stomping - that, in fact, Fahey didn't stomp him at all - but from being slapped in the face earlier in the day by his fiancee's brother. The "thud," he said, was from Fahey moving and then dropping a chair during the fracas. But the jury sided with a Norfolk County prosecutor that the slap in the face was soft enough it didn't even leave any mark on his face, let alone cause internal bleeding serious enough to result in death.
The prosecutor did two things he shouldn't have, that might have unfairly prejudiced the jury against Fahey, the appeals court concluded. During his cross-examination questioning of Fahey, the court said, the assistant DA repeatedly submitted Fahey to questions he shouldn't have, for example, to judge the veracity of other witnesses' testimony:
In challenging the defendant's testimony on direct that a chair had tipped over during the melee and caused a "thud," the prosecutor asked,"So, you're telling the truth and no one else is?" After the defendant answered, "Absolutely," the prosecutor then asked, "And convenient that it made a thud as two other witnesses described last week; is it not?"
In addition, the prosecutor improperly posed numerous rhetorical questions that assumed a factual premise that the prosecutor knew the defendant denied. For example, the prosecutor asked,"Now, what did it sound like, Mr. Fahey, when you drove this boot down on Mr. Boudreau's head? What did it sound like?" After the defendant responded that "[i]t didn't sound like anything," the prosecutor asked,"Was it a crack like Mr. DeLuca described?" That follow-up question drew an objection that was sustained but, undeterred, the prosecutor next asked,"Did it sound like a thud like [the bartender] described?" No objection was lodged, and the defendant answered, "No." ...
A final improper question came at the beginning of the prosecutor's recross-examination.At the conclusion of redirect examination, the defendant stated how "horrible" he felt about Boudreau's death and how the date of the incident was "the wors[t] day of [his] life." The prosecutor immediately asked, "How often did you rehearse that line, Mr. Fahey?"
And then, during his closing arguments, the DA called Fahey a "cowardly bully" or just a "bully" some 13 times.
The Commonwealth argues that it is unlikely that the prosecutor's calling the defendant a bully had an inflammatory effect because the prosecutor's use of the term was supported by the evidence. This argument misses the mark. The problem with such name-calling is not whether the labels are accurate, but instead is whether it amounts to an improper appeal for sympathy that risks "obscur[ing] the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt." Commonwealth v. Bois, 476 Mass. 15, 34 (2016). ...
The problem with the prosecutor's focus on portraying the defendant as a bully was exacerbated at the conclusion of the closing when the prosecutor displayed photographs of the defendant and the victim to the jury. The photograph of the defendant was his booking photograph; unsurprisingly, that mugshot portrayed him in a particularly unflattering light. By contrast, the photograph of Boudreau was an exceptionally flattering close-up of his face that depicted him smiling. When Boudreau's mother was asked to identify the man in the photograph, she said that the person washer "beautiful son." To be sure, despite their limited probative value, the photographs had been admitted in evidence, and it is generally acceptable to refer to and display exhibits during closing argument.Nevertheless, we agree with the defendant that by asking the jury to draw a contrast between the photograph of the "bully" and the curated photograph of the vulnerable victim,the prosecutor improperly sought to invoke the sympathy of the jury.
The prosecutor also crossed the line by excessively mocking the defendant's defense. For example, he urged the jury to "cast aside this ridiculous, ridiculous notion that the defendant did not stomp on Mr. Boudreau's head."Although a prosecutor is free to marshal the evidence in the Commonwealth's favor and to explain why the defendant's arguments are unfounded, he should avoid mocking such arguments with the type of excessive rhetoric employed here.
The court concluded the prosecutor just went too far, and that because the evidence of the stomping was less clear cut than that of the punching, a new trial is warranted.
This is not a case where the prosecutor's missteps were subtle or isolated. ... Rather, the problems were pervasive, and many were egregious. ...
The Commonwealth appropriately acknowledges that the prosecutor committed a number of errors, but urges us to affirm based on the strength of the evidence. However, the Commonwealth's murder case rested primarily on the theory that the defendant killed Boudreau by stomping on his head. While the evidence that the defendant punched Boudreau and caused him to hit the floor was overwhelming, the evidence that the defendant stomped specifically on Boudreau's head was not. Only one witness, DeLuca, claimed to have seen the defendant stomp on Boudreau's head, and Deluca previously told police and testified in the grand jury that he was standing behind the bar counter during the incident and did not see where the defendant's foot landed because the bar counter blocked his view. Moreover, although the medical examiner observed some contusions on Boudreau's torso, he did not see any marks on Boudreau's head that were consistent with being stomped there with a heavy work boot.
For these reasons, proof that the defendant had stomped on Boudreau's head was less than overwhelming, and such proof was critical for demonstrating that the defendant acted with the requisite malice to support a conviction of murder in the second degree. Given these circumstances, we are not confident that the jury's verdict would have been the same in the absence of these serious errors.