XII. ADA Morris A. Bergman takes the witness stand and gets caught lying-the DA's office tries to trigger a mistrial-Attorney Aloise refuses the judge's invitation to a mistrial over the defendant's strongest objection.
During initial direct examination of defense witness John Hayes the court officer reported to the judge that the jury foreperson claimed Hayes was in the court room the day before, therefore violating sequestration, TR 861-1. The foreperson claimed, per the court officer, a couple of jurors had seen him (Hayes) in the courtroom the day before listening to testimony, TR 862-2.
The judge held a voire dire, TR 862, and concludes with the two other lawyers that Hayes was not in the courtroom the day before, TR 868-10. The judge instructs the jury they were mistaken about seeing Hayes the day before, T. R. 874-3.
Little did the judge know but he was correct, as the jury informs the court that they had only seen Hayes in the morning not the day before, T. R. 876-3-10. The court officer got the information wrong on TR 861-1, above, that Hayes was in the court that day before.
Nobody, the defendant (see aff. #26), the court officers, the ADA Ball, Aloise, or the judge had seen Hayes in the courtroom the day before. Further, and most important, the jury was not claiming he was in the courtroom the day before. The jury was claiming (and court officer got it wrong) Hayes was in the court room a little before lunch just as Hayes admitted, TR 864-20. ADA Morris Bergman did not know this; he out smarted himself. Bergman submitted a note, (T.R. 885-11-Ex. F at trial, see Ex. O), prior to realizing the jury was misrepresented by the court officer. The note, as read by the judge TR 882-23, made claim that Bergman had seen Hayes in the courtroom the day before, TR 885-15. Further, Bergman testified he saw Hayes and courtroom on two prior days, TR 887-8. Bergman claimed that upon observing Hayes on the two previous days he questioned himself as to what Hayes relationship was to the defendant, TR 889-21. (Sure).
Morris Bergman clearly got caught up in the court officers mistake and subsequent confusion orchestrated by the judge that the jury was claiming Hayes was in the court room the day before, hence violating sequestration. Moe Bergman lied, he got caught. This was more wrongdoing by the Worcester DA's office towards Elbery their long time target and critic. Bergman being a long time adversary of Elbery (due to Bergman's extreme political beliefs and hatred of Elbery) was in the courtroom (Superior Court) everyday and saw this alleged sequestration problem with Hayes as an opportunity to damage Elbery and his case. Problem was the Court Officer, (efficiency not being a requirement of his government job) got everything wrong and the only one left claiming Hayes was in the courtroom the previous day or days was Bergman. Bergman, as is documented here, is a monument to the kind of viciousness that Elbery has had to endure at the hands of the "Worcester authorities". ADA Morris Bergman, as documented here, is an unscrupulous liar willing to do anything for his agenda.
Why was Bergman at Elbery's trial everyday? See aff. # 35. Bergman worked in the District Court, yet he was representing the DA's office, TR 363-10, when Judge Toomey jailed Elbery on the second day of trial because Toomey "thought" Elbery was "about to get out of control", T.R. 363-14. Although the record reflects Elbery saying or doing nothing prior to the jailing.
Moe Bergman tried to trigger or goad a mistrial, as well as, eliminate a very important defense witness. The attempted triggering of a mistrial by the prosecution requires a dismissal of the indictments, Com. v. Lam Hue To 391 Mass. 301, 310-311, 461 N.E. 2d. 776 '84, (prosecutor's conduct of goading the defendant into moving for a mistrial results in dismissal of the indictments and defendant may raise a bar to further prosecution via double jeopardy). The knowing use by Bergman of perjury relating to defense witness-Hayes also requires a new trial, U.S. v. Agurs 427 U.S. 97, 103 96 S. Ct. 2392, 2397, 49 L.Ed 2d. 342, ('76), Com. v. Tucceri 412 Mass. 401, 404, 589 N.E. 2d 1216, 1219, ('92).
The judge acknowledged the possible prejudice to the defense due to a juror, Mr. Audet, TR 875-24, excusing himself, as a result, allegedly, of Hayes being in the courtroom earlier that day and hearing about one hour of prosecution witness, O'Connor's, testimony. The judge was concerned the effect Audet and the entire incident could have on the remaining jurors towards the defense. Was that the real reason Audet left? I doubt it.
Aloise refuses mistrial over Elbery's objection
The judge, as a result, asked Aloise twice, TR 879-20, if the defense wanted a mistrial. You are not asking me to do anything, (judge) T. R. 879-20. Again on TR 896-20 the judge not only gives Aloise the option of a mistrial but comments he is impressed, TR 896-10, with Aloise resisting a mistrial because of the damaging effect this information might have on Aloise's client. Fact of the matter was that Aloise's client, Elbery, demanded that Aloise request or accept a mistrial. This in conference between Aloise and Elbery, see affidavit #21. What was bothering Aloise about another trial? Was it the same reason he did not ask in the alternative for a new trial when he filed the 25-b-2 motion after the jury's verdict? See Ex. R This is further
deficient performance by Aloise and shows that he never wanted to see another lawyer work on this case. The deficiency here, claim XII, by Aloise shows that he again was not representing his client's best interests and the adversarial process required to have a fair trial was violated. This satisfies the standard for ineffective assistance of counsel requiring a new trial as defined by the U.S. Supreme Court, Strickland v. Washington 466 U.S. 668, 687, 80 LED 2d. 674, 693, ('84). Better work by Aloise just on this mistrial issue may have produced something material for the defense, as above, thus these deficiencies in this claim satisfy the Massachusetts standard for ineffective assistance of counsel requiring a new trial, Com. v. Saferian 366 Mass. 89, 96, ('84).