Defendant asserts he was never advised of his statutory right to use telephone
By Kris Olson
BridgeTower Media Newswires
BOSTON — A former prosecutor who once derided the “dysfunctional, screwed-up mess” that was the Plymouth County District Attorney’s Office may have himself participated in a “cover-up” of false testimony by a State Police trooper, according to a defense attorney in the retrial of an 11-year-old murder case.
After leaving his job in Plymouth to join the Bristol County DA’s Office in 2015, Daniel J. Hourihan discussed in the pages of Lawyers Weekly how his former co-worker, then-Plymouth First ADA Frank J. Middleton Jr., “empowered the State Police Detective Unit to have too much influence with prosecutors when it came to how to handle homicide investigations and cooperating witnesses.”
But in the case of Kenston Scott, Hourihan may have knowingly taken advantage of an alteration of the defendant’s booking sheet, which Scott’s new attorney suggests was done to conceal the fact that investigators had failed to inform Scott of his right to make a phone call and had improperly denied his request to make one.
Scott’s prosecution on charges of first-degree murder, home invasion and unlicensed possession of a firearm began when Trooper Joseph Gray pulled over a vehicle in which Scott was a passenger on July 13, 2007.
When it was determined that Scott had an outstanding warrant, he was taken to the State Police barracks in South Boston to be booked. There, Gray used a computer to fill out an automated form.
In response to a question about whether Scott wished to avail himself of his right to make a phone call, Gray initially left the response blank.
But two days later, after Scott had given police incriminating information, someone — presumably Gray — went back in and selected “N/A” from a drop-down menu in response to the phone call question, a recent State Police computer forensic audit revealed.
But at a suppression hearing in advance of Scott’s initial trial, his defense attorney knew only of the form with the “N/A” answer. In response to a question from Superior Court Judge Jeffrey A. Locke, Gray indicated that he had entered “N/A” not two days later but in real time, as Scott allegedly declined the offer to make a phone call.
Scott maintained instead that he had indeed asked to make a call but had been told he could do so only after his interview with police was “done.”
A recorded interview after he was taken to the Brockton Police Department seemingly confirms Scott’s version of events. In Brockton, Scott twice asked to use the phone, while seemingly referencing a previous request to do so, according to filings by Scott’s new attorney, John G. Swomley of Boston.
The existence of two different versions of Scott’s booking sheet did not come to light until 2014, as Scott was appealing from the denial of portions of his motion for a new trial. Plymouth ADA Mary Lee sent a letter to the Supreme Judicial Court clerk’s office dated Aug. 4, 2014, making the disclosure out of her “ethical duty of candor” to the court.
“At this point, I do not know the reason why there are two different versions of the booking form,” she wrote.
Swomley, appointed after Scott was granted a new trial on the murder charge, thinks he knows why.
“The only reasonable explanation or inference as to why multiple versions of the booking form exist is one advanced by Defendant since day one — that he was never advised of his statutory right to use the telephone,” Swomley writes in a memorandum in support of Scott’s motion to dismiss filed June 28, 2017. “Once this was realized, a cover-up was attempted.”
In addition to containing different answers to the question about wanting to make a phone call, the version with the “N/A” response had a star in the upper left corner. That, Swomley says, is evidence of Hourihan’s role in the cover-up.
Swomley asserts that Hourihan had both versions of the booking form — they were found together in Hourihan’s trial file in a folder labeled “Joseph Gray MTS.” Swomley theorizes that Hourihan starred the one with the “N/A” response to remind himself of which version to use at the suppression hearing.
Swomley argues that Gray and Hourihan’s conduct was sufficiently prejudicial or egregious to warrant dismissal of the charges for which Scott has spent the last 10 years in prison.
“In the instant matter, not only did a State Police Officer deliberately deprive Defendant of one of his basic rights, he also lied about it under oath and attempted to conceal the truth,” Swomley writes. “In
conjunction with this, an Assistant District Attorney withheld evidence from Scott and appears to have participated in its fabrication as his office is in possession of the altered booking form with Gray’s original signature. These acts are reprehensible, and certainly when taken together, constitute the type of conduct this Court cannot allow to happen again.”
During the review of the trial file at the Plymouth DA’s Office, Swomley says he made another disturbing discovery: Prior to his arrival, Hourihan’s notes had been removed from the file.
In Swomley’s estimation, that made the Plymouth County ADAs handling the re-trial of Scott’s murder charge, Jessica L. Kenny and Jason Thomas, no longer “disinterested” but rather “material witnesses to issues crucial to this matter.”
However, Superior Court Judge Angel Kelley Brown denied Scott’s motion to disqualify Kenny and Thomas on April 25, according to Plymouth DA spokeswoman Beth Stone.
Stone declines to comment further, except to note that the office is preparing to re-try Scott on the first-degree murder charge.
State Police spokesman David Procopio declines to comment, citing the pending re-trial.
Hourihan, who was appointed to the Brockton District Court bench in 2017, also declines to comment.
The parties were scheduled to be back in court May 23 to discuss how to proceed. It would seem inevitable that eventually Gray — and perhaps Judge Hourihan, as well — will at some point be summonsed into court for an evidentiary hearing on a suppression motion.
