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VIII. The Worcester DA's office sponsors police officer King to lie before the grand jury-the Worcester DA's office further impairs the grand jury process-attorney Aloise knowingly approves and participates failing to motion for dismissal.

A. The Worcester DA's Office sponsors King to lie before the grand jury.

The S. J. C. Mass. held that if the Commonwealth or one of its agents knowingly uses false testimony to procure an indictment, the indictment should be dismissed, and a prosecutor who learns of the use of the knowingly false material evidence has a duty to come forward. See Commonwealth vs. Salman 387 Mass. 160, 166-67, 439 N.E.2d 245 (' 82); Commonwealth vs. Mayfield 398 Mass. 615, 620, 500 N.E.2d 774,778, (1986).

The Worcester DA's office sponsored Westborough police officer Thomas King to lie to the grand jury in order to gain indictments against Elbery on 3-20-93, categorized as follows:

1. King testified falsely about the extent and type of his eye injuries and as to how the injuries occurred, this as is itemized in claim I of this instant motion, as King's testimony at trial and the grand jury were substantially the same regarding this issue.

2. At the probable cause hearing King testified that he was not assaulted by Elbery with a beer bottle just as he told ADA Salloum prior to the probable cause hearing. Before the grand jury King went ahead and boldly said he was assaulted with a bottle by Elbery, see claim VI of this motion, as the perjury committed by King at trial was substantially the same as before the grand jury regarding the alleged bottle assault.

3. At the probable cause hearing King said he did not know what the girls injuries were, PC- 52-6. Yet, two months later at the grand jury, King testified a girl's face had been cut so badly that blood was coming out from under her hand as she covered her face, G. J.- 5-25. For the reasons stated in claim IV - of this motion, Mann’s alleged injuries, King committed perjury, as his trial and grand jury testimony were substantially the same regarding this factual issue.

The Worcester DA's office having full knowledge of the above perjury and falsification of evidence by King before the grand jury, via the probable cause hearing, had a legal duty and obligation to come forward and tell the truth in order to have the indictments dismissed. See Commonwealth vs. Mayfield infra. Since the Worcester DA's office chose to sponsor King to lie and encouraged King to lie, they violated this defendant’s Fourteenth Amendment Rights under the United States Constitution via procedural and substantive due process violations.

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B. Failure of the Worcester DA's office to disclose exculpatory evidence that would undermine King’s credibility-Impairment of the grand jury.

The S. J. C. held that the grand jury should be told of known exculpatory evidence that would greatly undermine the credibility of important witness. Commonwealth vs. Mayfield 398 Mass. 615, 621, 500 N.E.2d 774,778 (' 86). The Worcester DA's office had a duty to tell the grand jury that officer King had been demoted from his job at the Westborough police department as a result of his drinking on duty and other wrongdoing at the Winner's Circle Bar on 9-29-92. The Worcester DA's office knowingly kept hidden this important evidence that would have effected King's credibility before the grand jury as he had a motive to lie and an interest in seeing Elbery convicted in order to exonerate himself. See claim VII of this motion which explains the demotion of Thomas King.

The DA's office also had a duty to disclose to the grand jury that King was an obese 300 pound heart patient with a pacemaker at the date of the incident on 9-29-92. King had a heart surgery on 2-28-93 just before the indictments, T. R. - 252-21(King at sidebar). This would have been important to credibility because King claimed he acted alone while chasing Elbery 100 yards down Shrewsbury Street. King boasted to the grand jury that he subdued Elbery by "sweeping Elbery's feet from under him" and "knocking" him to the ground, G. J. - 7-14,15. This would be quite a trick as King documented to the Westborough police, Exhibit H., Elbery was 6' 2"-225 pounds and muscular. King was so impressed with Elbery he described Elbery's complexion as muscular, see exhibit H-the Bolton report.

C. Worcester DA's office failure to disclose known exculpatory evidence from the probable cause hearing-impairment of the grand jury process.

The Worcester DA's office being fully apprised of the probable cause hearing evidence exculpatory to Elbery decided to hide this exculpatory evidence. At the probable cause hearing there were four witnesses that testified besides King, all four donated almost entirely exculpatory evidence towards Elbery including bartender- Jeff Schlener, who was the prosecution witness.

This was not a problem, the Worcester DA's office only allowed the demoted Westborough police officer, Tom King, to testify before the grand jury and with a newly tailored testimony the product of much behind the scenes coaching.

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Had the Worcester DA's office allowed the other four probable cause hearing witnesses to testify, as justice requires, their exculpatory testimonies to Elbery are summarized from the probable cause hearing as follows:

Schlener (bartender), De Pasquale (doorman), Dr. Stephen Sawyer (customer).

1. Schlener admitted he was at fault for insulting Elbery and apologized in open court, PC-81-23; 106-7; 111-7.

2. All said King stuck his nose into Elbery's and Schlener’s low-key argument and confronted Elbery who was seated on the other side of the horseshoe bar at the Winner’s Circle. (De Pasquale) PC-187-19; 189-1; 191-7; 200-18-22; (Schlener) PC 110-13; (Swayer) PC 228-8; 230-10-13.

3. King had to be re-strained by the other patrons, in particular former Winner's Circle doorman De Pasquale, who grabbed King around the waste. Schlener had to yell at King to mind his own business, (Schlener) PC 107-1-24; 82-15; (DePasquale) PC 194-13-20.

4. None saw how the bottle broke including King. PC 83-5; 50-21; 196-2-3; 244-4.

5. They admitted most of the bar emptied out after Elbery, who immediately left the bar after the bottle broke, (a minimum of five men). PC 113-1-4; 114-19 thru 118; 199-6-9; 234-23.

6. Schlener admitted no police were called because of the girl’s "injury", PC 113-1-24.

7. The fight was on the street, all said this, PC 122-15-23; 146-20; 199-21.

8. Schlener said King corralled Elbery then Elbery through a couple of punches that didn't land, PC 87-14.

9. De Pasquale strangely volunteered, without being asked, he saw no punches thrown, PC 203-5.

10. De Pasquale and Schlener saw only wrestling between King and Elbery that lasted a few seconds resulting with Elbery lying in the street and King withdrawing with an eye "injury", PC 127-7; 204-3-7; 204-20;207-8.

11. There were three-four men on top of Elbery holding him down, PC 146-16; 205-9; 212-18; 236-1; 147-13.

12. There was no testimony corroborating King’s story telling Elbery he wasn't going anywhere because a "girl" was injured, nor any confirming King’s story of two thumb gougings, once while King was bear-hugging Elbery and once while on top of Elbery after King had "knocked" Elbery to the ground. See King’s perjury, claim I. There was no corroboration of King sweeping Elbery’s feet from under him, as he testified to the Grand Jury, GJ 7-14.

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13. PC- 120-3 & 114-1&2, Schlener testified that he exited the bar two minutes after Elbery fled the bar and that the gang was just catching up to King and Elbery, who were 75 yards down the street. Schlener further said he was able to see Elbery throw that first punch, P.C. 87-19. De Pasquale testified he left the bar five minutes after Elbery and the gang exited the bar in order to see the whole incident between King and Elbery, PC- 202-7.

A rational and alert grand jury would have found this time sequence to be doubtful as Elbery and the chasing gang, including King, would have run the 75 yards distance in much less than two minutes (closer to 10 seconds) let alone five minutes.

King at the probable cause hearing and trial described no delay in the chase. P.C. 56-5, TR 402-14.

Both Sawyer and Schlener testified Sawyer exited the bar before Schlener and Sawyer further testified that the chase and fight had been concluded by the time he got outside the bar, PC 118-16;239-19-22;240-3. De Pasquale also testified Schlener was still in the bar after he, De Pasquale, exited the bar 5 minutes after Elbery.

The grand jury if given this information could reasonably have concluded Schlener was helping his friend King by saying he witnessed Elbery throwing the "first punch". The grand jury could have reasonably concluded De Pasquale was concealing he was involved in the gang beating of Elbery. Since, Sawyer, PC 239-2, testifies DePasquale was one of the ones who went out immediately after Elbery.

Perma-Investigating Worcester Police Officer.

1. The Worcester Police Dept. found no girl at area hospitals, PC 154-17 thru 155-1, who fit the description given by Schlener per the police report of having a cut face and eye, See Ex. D. He asked Schlener and company to come forward with information as to the identity of this "injured" girl, nobody did, PC 154-5-16.

2. Elbery was arrested on the street for disorderly person as a result of making noise while struggling under the force of several men, PC 162-23;159-7.

3. A "team" of Worcester police decided to charge Elbery with mayhem (not attempted mayhem) a 20 year prison sentence for taking out King's eyeball, PC 161-14.

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The Mass. S.J.C. specifically held in Commonwealth vs. Mayfield 500 N.E.2d. 774,778, 398 Mass. 615, 621, and Commonwealth vs. O’Dell 392 Mass. 445, 448-449, 466 N.E.2d 828 (' 84) that failure to disclose known information may impair the grand jury proceedings and that intentional nondisclosure of exculpatory evidence favorable to the defendant impairs the grand jury proceedings and requires a dismissal of the indictments.

D. Failure of the Worcester DA's office to advise grand jury of Mass. law on citizen’s arrest, further impairment of the grand jury process.

The prosecution had a duty to inform the grand jury of facts and law surrounding the case before them. Commonwealth vs. Mayfield 500 N.E.2d 774,778, 398 Mass. 615, 621. The defendant was denied Due Process of Law to a fair and impartial presentation of evidence before the grand jury through the prosecutor’s failure to instruct grand jury on Massachusetts law regarding the right of a citizen to make an arrest. Crimmins vs. Sup. Ct. Marcopa C.Y. 668 P2d. 882, 885-886 (' 83 Az.); State v. Ball 632 A. 2d 1222, 1246-1247 (Super Ct. N.J. Appellate Division ’93).

Without instruction on the law of citizen’s arrest the grand jury could not make a determination of the facts within the law. They could have thought that King was acting with the powers of a police officer as he identified himself as such before the grand jury. The grand jury should have been alerted that the law says King had no right to pursue Elbery unless a felony had been committed prior to King's action. The grand jury should have been informed there was no felony committed in the bar to justify King chasing Elbery down the street let alone assaulting Elbery. Commonwealth vs. Grise 496 N.E.2d 162,164, 398 Mass. 247, 250 ('86) (no felony committed unless "in fact" a felony was committed via a conviction)(all evidence from an illegal citizen’s arrest is suppressed).

This prosecutorial due process violation and impairment/sabotaging of the grand jury process regarding citizen’s arrest is further compounded with King's perjury presented to the grand jury as the grand jury was falsely led to believe Officer King was acting heroically, legally, and in defense of the innocent girl and public.

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Summary

The misconduct by the Worcester DA's office surrounding the grand jury process as itemized in this motion claim requires a dismissal of all the indictments, as the grand jury was misled (lied to) and there has been an injustice. The sole purpose for this prosecutorial wrongdoing regarding the grand jury process was to gain indictments falsely against Elbery. The grand jury would have been left with no probable cause to indict Elbery, there would be nothing to present to the grand jury, had it not been for the perjury of King and impairment by the Worcester DA's office of the grand jury proceedings, Commonwealth vs. Mayfield 500 N.E.2d 774,778, 398 Mass. 615, 621 (Standard and test in Mass. For dismissal of indictment). All the indictments against Elbery should have been dismissed.

Elbery's right to Due Process as is guaranteed under the Fourteenth Amendment of the U.S. Constitution was violated due to the prosecutorial misconduct surrounding the grand jury process itemized in this motion claim VIII. Due Process of Law, guaranteed by the Fourteenth Amendment to a person charged with a crime is complied with when he is regularly indicted by proper grand jury. Ker v. Illinois (1886) 119 U.S. 436, 30 L. ED2d 421, 7 S. Ct. 225. Due Process of Law means law in the regular course of administration, according to prescribed forms, and with general rules for protection of the individual rights. Hurtado vs. People of California 4 S. Ct. 111,110 U.S. 516, 28 LEDs 2d 232.

Once again, Attorney Aloise was deficient in his performance. At a minimum, Aloise should have motioned to dismiss all the indictments against his client as a result of the outrageous irregularities surrounding the indictments against his client.

However, even with the urging of his client to do something about what was obviously wrong, see affidavit #14 & 14a, Aloise did nothing. Aloise was well aware that his client's rights were voided before the grand jury. The probable cause testimonies, King's hospital report, King's demotion, Judge Raphelson alerting Aloise to the law of the case regarding citizen's arrest, PC- 265-8-9; 266 1-4, were all documented and in Aloise's possession before the trial.

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The prejudice is obvious; Elbery had to face false indictments. Elbery was faced with a stack of false accusations; to defend any charge was impossible due to the prejudice brought by the remaining false charges.

The test to determine ineffective assistance of counsel requires deficient performance and resulting prejudice to the defendant so that if not for the defense counsel's errors there would be a reasonable probability of a different outcome at trial. Strickland vs. Washington 466 U.S. at 694-696. If the grand jury indictments had been dismissed it can be safely said there would have been a different verdict, thus the prejudice prong is satisfied.

Attorney Aloise was advocating King's best interests, ineffectiveness is presumed when counsel actively represented conflicting interests. Cuyler vs. Sullivan, 446 U. S. 335,350, 64 LEDs 2d 333, 100 S. Ct. 1708 (' 80), United States vs. Cronic 466 U. S. 648, 661, n. 28, 80 LEDs 2d 657, 669, n. 28, (' 84).