A. The prosecution knowingly produces and allows false evidence regarding injury to Mann.

B. Defense Attorney Louis P. Aloise sanctions the prosecution's false evidence regarding injury to Mann,  

making him further ineffective in his assistance of counsel.


A. The prosecution knowingly produces and allows false evidence regarding injury to Mann. 

            Prosecution witnessesí and friendís testimonies regarding Mannís facial cutting.

    At trial six witnesses gave testimony (see footnote 3 Ė Ex K), regarding Mann's facial cutting. Tom King, prosecution witness-in-chief and his friends testified that Mannís face was cut very badly, that her eye was cut and blood was dripping down her face between her fingers, (see footnote 3 Ė Ex K). Mann testified that she went to U. Mass. Hospital immediately after leaving the bar, and that a physician puts stitches above and below her eye as a result of her face being cut. The various witnesses claimed that Mann's injuries were caused by the defendant, Elbery, breaking a bottle, the glass flying cutting her face. Mann claimed the injury occurred after she got up from her seat and was moving away from what she thought was a fight starting, she claimed to be approximately three seats away from Elbery, T. R. 166-24, (see also footnote 3 Ė Ex K) for transcript citings regarding Mannís fictitious facial cutting).

Evidence contradicting Mannís facial cutting not brought to the attention of the jury.

1. There were no criminal charges brought against Elbery for this alleged injury to Mann. Whoever causes injury to another due to a wrongful act or a willful, wanton and reckless act is guilty of battery i.e., a crime. Commonwealth vs. Hawkins 157 Mass. 551, 553, (1883), Mass Practice Volume 32 s. 322 p. 238.

2. There was no medical evidence presented to support Mann's cutting and physician stitching her face.


3. There was no facial scarring to this 18-year old girlís face, see affidavit #3.

4. Per the police report, the Worcester Police searched all area hospitals and found that nobody had gone to any area hospital for such treatment or injuries, see Exhibit D. The police searched for this girl as a result of bartender Jeff Schlener telling the police that a girl had gotten glass in her eye, cutting her, Exhibit D.

5. The prosecutor, although making full use of this evidence against Elbery, never pointed to any scarring that should have resulted from cutting requiring stitches only nine months prior to trial.

6. Defense attorney Aloise never pointed to a lack of facial scarring to Mann during cross-examination but agreed with his client in private that Mann had no scarring, affidavit #4.

7. There was absolutely no physical or third party medical evidence to support this claim of Mannís facial cutting; there was only finger pointing and say-so by a group of Kingís friends.

8. At the probable cause hearing, PC 53-6 and 52-6, King testified he didn't know what the girlís injuries were, (there was only an unidentified girl at the time of the probable cause hearing). Compare this to King at trial testifying as to Mannís injury, blood coming around her hand, out her hands, through her fingers down her face, T. R. 194-7.

Other evidence that should have alerted the prosecution that Mann's injuries were at least of suspicious authenticity.

9. Tom King claimed during testimony that he found Mann after the probable cause hearing about March' 93. They just coincidentally found her after losing the probable cause hearing six months after the incident.

10. Man briefly contradicted her testimony about bloody facial cuts requiring stitching, "yes, -I said I was at the hospital. I don't know if I said U Mass., "I just called to let you know I was all right and no glass is in my eye or whatever, T. R. 174-20. "I thought I saw a little bit of blood. But another guy came over and said you know your fine and everything", T. R. 144-13. Man let the truth slip out, being a witness may have been stressful especially when you can't remember your lines, see 11 below.

11. The prosecutor should have been further suspect to Mannís claims of injuries when she, prior to trial, told ADA Mike Ball she was leaving and did not want to testify, this at the urging of her boyfriend. The prosecutor, Ball, responded by threatening to arrest her. Police officer Tom King then took her aside for over an hour and they talked, see affidavit #5.



Mannís in court identification of Elbery-violation of Due Process because of improper pretrial identification-The Court, Aloise and Ball look the other way-King obstructs justice, tampers with witness. 


One of the more outrageous highlights of the trial came while Aloise cross-examined prosecution witness Mann.

T. R. 159-9 (Aloise) Q. You spoke of the case?

(Mann) A. Yes (with King).

(Aloise) Q. What did you speak about the case?

(Mann) A. He just -- He showed me who the defendant was.

(Aloise) Q. He (King) pointed Mr. Elbery out to you?

(Mann) A. Yes.

(Aloise) Q. Is it fair to say that before he did that, you would not have recognized Mr. Elbery?

(Mann) A. I recognized him but I could not recall the face.

(Aloise) Q. So you really did not recognize them?

(Mann) A. No not his name. No, I didn't, no.

(Aloise) Q. He pointed him out to you and he told you who he was?

(Mann) A. Yes.

The record clearly reflects Mann could not identify Elbery until King showed her who she was to finger.

 Aloise was once again deficient in his performance, in that, he should have requested a voire dire to challenge Mannís identification of Elbery. Commonwealth vs. Scott 321 N.E.2d 682, 684, 2 Mass. App. Ct. 763, 766. Aloise was deficient for not requesting a mistrial because of Mannís admitted perjury, she falsely identified Elbery, Commonwealth vs. McLeod 394 Mass. 727, 740. Aloise should have further pursued this perjury by Mann and witness tampering by King that Aloise tripped over during


cross-examination of Mann. Instead he avoided any further issue of this matter during Mannís cross-examination and neglected to bring it to the jury's attention in closing. Aloise was not about to make an issue out of this with King, Aloise merely avoided any controversy on this issue during King's cross-examination.

The prosecution failed to correct this perjury, once again violating Elbery's Due Process Rights under the 14th Amendment of the U.S. Constitution. Napue v. Illinois 360 U.S. 264, 268 3 L Ed 2d 1217, 1221, 79 S. Ct.1173 (Ď59). .

The U.S. Supreme Court held that in such cases due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications, obtained through unnecessarily suggestive procedures. Moore vs. Illinois 434 U.S. 220, 54 LED2d 424, 98 Sup. Ct. Rpt. 458,464.

Tom King is guilty, per this documentation, of subornation of perjury, Mass. GL C. 268 S. 2 and tampering or influencing a witness, Mass. GL 268 S. 13 B.


The prosecutor's duty to know the facts of the case and investigate.


It is a prosecutor's duty to investigate, to inquire into the facts with care and accuracy, examining the available evidence, 27 C. J. S. S. 14 (1) p. 671. A prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused. U.S. vs. Kelly 543 F. Supp.1303, 1310 (' 82), (quoting the ABA Ethical Consideration 7-13); The S. J.C. Rule 3:08 P. F. 7 b.

The police knew, document, from their initial and brief investigation, see Exhibit D., that a girl did not get injured. This just as bartender Schlener reported immediately following the incident on 9-29-92, per Exhibit D. The police document per, Exhibit D., they went to all area hospitals and found no such girl with facial injuries to have been treated at any of these hospitals. Obviously, Worcester police and Worcester County DAís office investigated this case, contrary to what Ball and officer Perma claimed at trial, T. R. 275-9, T. R. 1002-12, respectively. The result of the investigation was not good for their case and objective to convict Elbery.


The prosecution chose to ignore what was right in front of them via points 1-11 above, instead they presented false evidence on the Mann issue to the jury, see footnote #3 Ė Ex K.

Further, the Mass. S. J.C. in Commonwealth vs. Lam Hue To 461 N.E.2d 776, 779, (' 84) 391 Mass. 301, 304, held that imputed to the police is the responsibility for evidence they knew or should have known. The Supreme Court per Kyles vs. Whitley 131 L. Ed2d. 490, 508, 514 U.S. 419,115 S. Ct. 1555, ('95) held a prosecutor has a duty to learn of any favorable evidence known to the others acting on the governmentís case including the police, regardless of good or bad faith. The prosecution should have known, as is made obvious in this factual claim IV that Mann and her other witness friends were lying about Mann's injuries. They had to lie in order to cover-up their criminal behavior that night, the ganging-up and beating of the defendant.

Also, Tom King was part of the prosecution team, he boasted to Elbery in the courthouse that he was being paid regular police wages to testify at trial, not as a witness citizen, but as a police officer, see affidavit #6.

Of course the police and prosecution acted as if they knew Mann and the other witness friends testified falsely at trial regarding injury to Mann. They did not bring criminal charges against Elbery. Instead of further investigating or utilizing what they knew to be the truth from their investigation the prosecution chose to allow false evidence to be presented to the jury. Knowing use by the prosecution of false evidence or its equivalents requires a new trial. U.S. vs. Giglio 405 U.S. 150, 31 L. Ed.2d.104, 108 ('72), Commonwealth vs. Tucceri 412 Mass. 401, 405 , (' 92), 589 N.E.2d 1217, 1219,n. 3 (prosecution is responsible for evidence they knew or should have known to be false, they have a duty to correct such). This in further violation of Elbery's Due Process Rights under the Fifth and Fourteenth Amendment to the United States Constitution.

This claim IV shows the prosecutor, A.D.A. Mike Ball, not only knowingly using false and perjured evidence, surrounding Mannís fictitious injury, to convict Elbery but he couples or compounds those falsifications in his opening statement and closing argument, TR 115-16,111-8, 1237-21, blatantly misrepresenting the evidence to the jury. The S.J.C. of Massachusetts held in Com. v. Collins, 386 Mass. 1, 8, (í82), 434 N.E. 2d 964, 969, that this type of abuse by the prosecutor results in an inescapable conclusion and that is that the conviction can not stand.




Use by the prosecution of this perjury-the central prosecutorial theory based on lie.


The prosecution used this alleged injury to Christina Mann to justify Tom King and friends chasing the defendant, Elbery, almost a 100 yards down the street, TR 197-17, 497-22, 755-3-10, and making a citizenís arrest and beating him. The prosecution knew from the evidence, this claim, that the evidence about Mann's injuries was false. The prosecution chose to ignore this and instead use it for their case in chief.

The prosecution portrayed King, to the jury, as a white knight heroically, and single handedly, defending this 18-year-old female victim, whose face was mutilated by Elbery. The prosecution witnesses Traskiewicz, O'Connor, King, Schlener, and defense witnesses D. Pasquale, all friends, testified they were "holding" Elbery because of Mann's injury, TR 547-19, 502-13, 757-13, 199-24 through 200-2, but Schlener claimed at trial he called the cops because of Kingís alleged injury. Why didn't Schlener call the cops about Mann's injury? Could it be that in actuality there was nothing to call about in regards to Mann or a patron? Allegedly Mann was injured first.

What were the friends going to say at trial, that they got a little carried away and jumped a guy who was by himself in trying to avoid odds of six against one? Man's injury was a cover-up, a reason they made up to justify their actions. The prosecution knowing they could not use Mannís alleged injury as the felony justifying Kingís citizenís arrest of Elbery tried to get a felony conviction on the assault with a deadly weapon charge which they knew never happened either, see claim VI, in order to satisfy the Massachusetts law on citizenís arrest, see claim V. But it was the girl's fictitious injury that they used to gain the sympathy of


the jury even though they knew they couldn't convict Elbery on this crime because it did not exist. Knowing use by the prosecution or its equivalents requires a new trial; the prosecution has a duty to correct all perjury. Commonwealth vs.Tucceri 412 Mass. at 405, U.S. vs. Agurs 427 U.S. at 103, 96 S. Ct. at 2397.

The jury was misled at trial by this false evidence of Mannís injuries. This being a miscarriage of justice requiring a new trial. Commonwealth vs. Freeman 352 Mass. 556, 564 (' 67) (mislead the jury on this material evidence the trial is unfair requiring a new trial).


More prejudice resulting from the prosecution using perjury about Mann's injuries.

The introduction by the prosecution of this false evidence regarding Mannís injury made it all the more easy for the jury to believe that if Elbery cut Mannís face there would be little doubt that he would assault King. The false evidence of Mann's face injuries created overwhelming sympathy for King's actions and overwhelming prejudice, via the jury, against Elbery. The jury likely would have considered the cutting off Mann's face with all the testimony about dripping blood and stitching, a far worse act than the alleged assault on King, after all there was no weapon involved in the claimed assault on King and Mann was an alleged innocent bystander and defenseless female.

Compare this set of facts with Commonwealth vs. Miranda 415 Mass. 1, 7, (' 86), 610 N.E.2d 964, 967, (' 93), where the Mass. S. J.C. decided a new trial to be in order due to the prosecution introducing highly prejudicial evidence in the form of a nolle prossed indictment. The S.J.C found that the reinstatement of the nolle prossed indictment made it all the more likely that the other indictment, the other indictment being a less serious charge, would result in a conviction.

The question the S. J. C. asked in determining reversal of Miranda on the lesser charge was, "did the introduction of the nolle prossed indictment taint the trial by making a conviction on the other charge more likely"? Although, there is no nolle prossed indictment involved in this instant case the effect of the prosecution introducing the false evidence of Mannís injuries, a crime, to the jury tainted the trial and made it all the more likely to convict Elbery on the charges at trial. The contamination of the trial by this falsified Mann-injury evidence requires a new trial. i.d.


B. Mann's injuries and Aloise's ineffective assistance of counsel-Failure to investigate-Harboring the prosecution's false presentation of evidence-deprivation of Compulsory Process-stipulation of the prosecution's false evidence. More conspiracy by Aloise.

For reasons listed in items 1-11, above in section A, the defendant, Elbery, see affidavit #7, demanded half-way through Mannís testimony that Aloise subpoena her medical records of this alleged facial cutting and stitching at U Mass. Aloise refused three times to the demands of his client regarding Mann's medical records. This resulted not only in deficient performance by Aloise but at the same time he denied his client Compulsory Process via documentary evidence. Compulsory Process applies to documentary evidence, as well as, witnesses. Taylor v. Illinois 484 U.S. 400, 407-408 (í88), 98 L. Ed 2d 798, 108 S.Ct. 646, 652-653; U.S. v. Levy-Cordero 67 F3d 1002 (CA 1 (Puerto Rico) 1995); U.S. v. Burr, 25 F. Cas 30, 33 (C.C. Va 1807)(No. 14, 692d); U.S. v. Nixon 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed 2d 1039(1974); Brahan v. State 571 P. 2d 631, , (Alaska' 77).

For reasons stated in section A items 1-11, Aloise once again knowingly allows the prosecution to falsify its case against Elbery, as well as, the paragraph above which shows Aloise harbored the prosecution's false evidence regarding Mann's facial cutting, stitching and visit to the hospital. This is a breakdown of the adversarial process required between the prosecution and defense in order to obtain the truth and a fair trial. U.S. vs. Cronic 466 U.S. 648,659, (í84) , 80 L Ed.2d. 657, 666-668, 104 S. Ct. 2039 (breakdown of the adversarial testing is a violation of the U.S. Sixth Amendment requiring effective assistance of counsel). The U.S. Supreme Court held that a deficient performance by the defense counsel is presumed to have prejudiced the claimant where there is a complete breakdown of the adversarial testing. id.

The choice, conspiracy, not to investigate Mannís claimed injuries and physician treatment at a hospital is another count of deficient performance by Aloise. The need to investigate this evidence should have been


 obvious to Aloise even without the urging of his client. Per Strickland vs. Washington 80 L. Ed.2d. 674, 694-95, (' 84), 466 U.S. 689,690, an attorney has a duty to investigate, to advocate the cause of his client; if the attorney chooses not to investigate that decision should be based on a reasonable decision. The result of a proceeding is unreliable because of a breakdown in the adversarial process and a new trial is required Strickland 80 L Ed 2d. 698,699, 466 U.S.695-696.

In order to demonstrate constitutionally ineffective assistance of counsel it must be shown that counsel's conduct fell below the applicable standard for performance, defined by what the lawyer knew or should have known at the time of counsel's tactical choices. U.S. vs. Oritz 23 F3d. 21,26 (1st circuit' 94).

Prejudice to the defendant is also required to demonstrate constitutional ineffective assistance of counsel id.-The prejudice to Elbery surrounding Aloise's handling of evidence of Mannís injuries is the same as prejudice in section A of this claim.

The conspiracy by Aloise to allow the prosecution's false evidence of injury to Mann poisoned the jury against Elbery preventing any chance that he got a fair trial or a trial whose verdict could be regarded as reliable. Aloise never challenged any witness especially Mann about these alleged injuries. He never gave any indication to the jury in his closing that there was something wrong about Mann's evidence. This in violation of the Six and Fourteenth Amendment to the United States Constitution requiring Due Process, effective assistance of counsel, and the right to a fair trial. Cronic 466 U.S. at 657-659, 80 L Ed 2d. at 666-668.


Stipulation by Aloise of the prosecution's false theory regarding Mann's injury.


To make matters not just worse but ridiculous Aloise in his opening statement, T. R. 129-3, And (Mann) went off the U Mass where she was treated with butterfly stitches on her cheek below her eye, advocated the prosecution's false evidence about Mann, he presented this false evidence as fact. This is by Aloise stipulation, as fact, of the prosecution's false evidence regarding Mann. Statements made by counsel in opening statement are judicial admissions binding on the party. Mass Practice volume 19 S. 518 p. 706. An attorney should know the law otherwise he (Aloise) is deficient in his performance. U.S. vs. Natanel 938 F. 2d 302, 309 (1st circuit' 91). An attorney has a duty to advocate his clientís defense, the breakdown of the adversarial trial process requires a new trial as this situation would be a deprivation of effective assistance of counsel guaranteed by the Six and Fourteenth Amendment. U.S. vs. Cronic 466 U.S. 648, 657-659, ('84), 80 L ED 2d 657, 666,668, 104 S. Ct. 2039, Washington vs. Strickland 466 U.S. 668, 686, 80 L. ED 2d. 674, 692(' 84). (The benchmark for judging a claim of ineffectiveness must be whether counselís conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result).