COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CRIMINAL ACTION No. 8877CR13527 COMMONWEALTH vs. JAMES B, CARVER MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S FIFTH MOTION FOR NEW TI (Paper No. 159) On July 4, 1984, fifteen residents of the Elliot Chambers rooming house in Beverly (‘ECRH’ or "Building’) were killed during an early morning fire. On November 22, 1989, defendant James Carver was convicted by a jury of fifteen counts of second degree murder (and one count of burning a dwelling house) for setting the fire. Carver was sentenced to life in prison with the possibility of parole, a sentence he is still serving Now before the Court is the Defendant's Fifth Motion For New Trial (Paper No. 159) (‘Motion”), on which the Court conducted evidentiary hearings on April 9, 10, 11, and 12, and May 29, 2024." * Also before the Court are the following memoranda: (i) the Defendant's Memorandum Of Law In Support Of 2022 Motion For Post Conviction Relief (Paper No. 160); (i) the Commonwealth's Opposition To Defendant's Fifth New Trial Motion (Paper No. 169) ("Commonwealth's Opposition’); (i) the Defendant's Supplemental Memorandum Of Law And Reply To The Commonwealth's Opposition To The Defendant's Fifth New Trial Motion (Paper No. 172) (‘Supplemental Memorandum’); (iv) the Commonwealth's Opposition To The Defendant's ‘Supplemental Claims In Support Of His Fifth New Trial Motion (Paper No. 182); and; (v) the Defendant's Post-Hearing Memorandum Of Law And Reply To The Commonwealth's May 13, 2024 Filing (Paper No. 184) (“Post-Hearing Reply’) Page 1 of 68In the Motion, Carver argues that he is entitled to a new trial for three reasons. First, he claims that advances in fire science establish that the Commonwealth's theories at trial regarding the cause and point of origin of the fire were flawed and unreliable. Second, Carver contends that advances in the science of eyewitness identification and memory establish that certain eyewitness evidence presented at the trial was unreliable. Third, he argues that a confluence of factors acting together, including these advances in science and the personal and professional misconduct of his trial counsel, have caused a substantial risk that his trial was a miscarriage of justice. At the evidentiary hearings, the Court heard testimony from two fire science experts, Craig Beyler, Ph.D., and Michael Mazza, as well as Nancy Franklin, Ph.D., an expert in the field of eyewitness identification and memory. The Court also received in evidence dozens of exhibits, including reports authored by the two fire science experts. Asis fully explained below, after thorough consideration of the parties’ submissions, the arguments of counsel, and the evidence presented at the hearing, and careful review of the evidence presented at the trial, the Motion is ALLOWED. RELEVANT PROCEDURAL HISTORY On May 4, 1988, the Grand Jury retuned sixteen indictments against Carver charging him with fifteen counts of second degree murder and one count of burning a dwelling house. On March 24, 1989, Carver's “first trial ended in a mistrial because of prosecutorial misconduct" regarding discovery violations. Commonwealth v. Carver, 33 Mass. App. Ct. 378, 379 (1992) Page 2 of 68in November 1989, the Court (Mathers, J., presiding) conducted Carver's second trial over twelve trial days. Carver was convicted by the jury of all charges on November 22, 1989. ‘On December 1, 1989, Carver was sentenced to two consecutive life sentences on the fifteen counts of second degree murder and 15 ~ 20 years in state prison on the charge of burning a dwelling house. In December 1990, Carver filed his first motion for new trial, see Paper No. 117, in which he argued that he was entitled to a new trial due to newly discovered evidence that Miles Hale, a prison inmate, “admitted to two other inmates that it was he and another woman by the name of Lisa Dion who set fire to the rooming house: specifically, that Dion and Hale were standing near the rooming house; Dion set some newspapers on fire; and Hale threw the papers ‘inside the door of the building and then we all took a walk.” Memorandum Of Decision And Order On Defendant's Motion For New Trial (Paper No. 122), pp. 1-2. On May 30, 1991, the trial judge denied Carver's first motion for new trial, ruling that: The alleged confession (which Hale now denies ever making) does not square with the expert testimony regarding the fire’s point of origin and its cause. The uncontested trial testimony of the Commonwealth's expert, Fire Marshal Robert Doran (Doran), stated that the fire’s point of origin was outside the building in an alcove, not inside the building, as the alleged confession indicates. Doran's testimony was further corroborated by firefighters who testified that they had to physically remove the stack of newspapers from the doorway before they could enter into the hallway, ? Judge Mathers has retired. Page 3 of 68Doran further testified that the cause of the fire was a stack of newspapers, doused with a flammable liquid, to which an open flame was then applied. The alleged confession states that some newspapers were set on fire and tossed into the hallway of the building; there is no mention of any liquid flammables. Id. at p. 3 (emphasis added) On October 6, 1992, the Appeals Court affirmed the jury's verdict and the denial of Carver's first motion for new trial. Carver, 33 Mass. App. Ct. at 379. In August 1994, Carver filed his second motion for new trial in which he argued that he was entitled to a new trial because, inter alia, his trial counsel failed to consult with him prior to waiving his right to have the jury consider a verdict on the lesser offense of involuntary manslaughter. See Paper No. 125. In September 1994, the Court (Mather, J.) denied the second motion for new trial ina margin endorsement. Id. In September 1998, Carver filed his third motion for new trial in which he argued that he was entitled to a new trial because his trial counsel “created a serious conflict of interest" by allegedly having sexual relations with Carver's then-wife during the two trials of this matter. See Paper No. 129. In February 1999, after conducting an evidentiary hearing on the motion, the court (Merrick, J.) denied the third motion for new trial, ruling that Carver knew this information when he filed his first motion for a new trial and, thus, waived that claim by failing to raise it. Order (Paper No. 135), p. 1. Further, finding that the testimony of Carver's ex-wife was not credible,’ the court ruled that “the defendant has simply not presented evidence sufficient for this Court to find that a genuine conflict of interest 5 Carver and his wife apparently were divorced sometime prior to the hearing on the third motion for new trial. Page 4 of 68actually existed. The defendant has, at best, raised an issue as to a potential conflict of interest.” Id. at p. 2 ‘On November 22, 2000, the Appeals Court, in an unpublished decision, affirmed the denial of the third motion for new trial. See Commonwealth v. Carver, 50 Mass. App. Ct. 1108, 2000 Mass. App. LEXIS 1003 (2000); Paper No. 143 In February 2008, Carver filed his fourth motion for new trial, arguing that he had newly discovered evidence that a resident of the ECRH named Moore, who died in the fire, had a history of setting fires at a nearby restaurant he frequented and that this resident's mattress caught on fire when he was staying at another rooming house. See Paper No. 148. The court (Welch, J.) denied that motion in June 2008 without a hearing, ruling that “[{Jhe affidavits do not contain any information linking Moore to this arson and do not contradict the substantial evidence presented at trial.” Margin Endorsement Order dated June 6, 2008. On October 16, 2009, the Appeals Court, in an unpublished decision, affirmed the denial of the fourth motion for new trial, ruling that, “[wJhatever problems the new suspect may have had, nothing in the affidavits, or apparently generated in the investigation for which the defendant received funds, ties the new suspect to the fire.” Commonwealth v. Carver, 75 Mass. App. Ct. 1107, 2009 Mass. App. Unpub. LEXIS 1078, at *1 (2009); Paper No, 154. On March 28, 2022, Carver filed the Motion, i.e., his fifth motion for new trial. Page 5 of 68FINDINGS OF FACT The Court makes the following findings, which are based on the credible evidence presented at the hearings and the reasonable inferences the Court has drawn from the evidence.* A. THE E| ENCE AT CARVER’S SECOND TRIAL 1. The Appeals Court's Summary Of The Trial Evidence The following is the Appeals Court's “summarly of] the pertinent evidence presented at the trial,” Carver, 33 Mass. App. Ct. at 379, which the Court sets forth to provide an overview of the evidence at the trial: Fifteen people died in an early morning fire on July 4, 1984, at the Elliott Chambers rooming house in Beverly. An arson investigator, [Robert Doran,] who inspected the scene on July 9, 1984, determined that the fire began in the alcove adjacent to the front entrance to the rooming house. [Doran] concluded that the fire had started on a stack of newspapers found next to the door which had been set on fire with some type of hydrocarbon [liquid] accelerant. He ruled out electrical failure or spontaneous combustion as a cause of the fire. In the early evening on July 3, 1984, the defendant was at work at the Atlantic House of Pizza [(‘AHOP”)], which is near the Elliott Chambers rooming house. In the alley adjacent to the defendant's work place, he encountered Rick Nickerson, who[, unknown to the defendant] lived at the Elliott Chambers rooming house. The defendant warned Nickerson that if he continued to date the defendant's former girlfriend, Lisa Maggiacomo, he would kill him and burn his house down. At about 1:15 a.m. on July 4, 1984, the defendant told a frienaf, Pamela Proulx Flynn,] that he was upset because he had broken up with Lisa and that he wanted her back Between 3:00 a.m. and 4:00 a.m., a cab driver, Stanley Clark,] observed the defendant standing in front of the rooming house and saw a car which fit the description of the defendant's carf, a two “The Court sets forth additional findings of fact in the Conclusions of Law section, infra. Page 6 of 68door, blue 1974 Mercury Cougar,] parked adjacent to the rooming house. Around 4:0[5] a.m., Florence Michaud, who delivered newspapers in the neighborhood, [while stopped at a traffic light,] saw a man standing in the entry way to the rooming house leaning over a stack of newspapers. She could not identify the defendant as the man she had seen. ‘At about the same time, Harold Eastman was delivering papers to the drug store adjacent to the rooming house and saw a man standing in the doorway to the rooming house smoking a cigarette. He testified that the defendant was not this man. The fire broke out at about 4:18 a.m. The defendant's parents[, Gail and Roger Carver,] testified that the defendant was at home asleep at that time. In the months that followed the aftermath of the fire, the defendant made a number of incriminating statements, including an admission to two friends that he had set the fire Id. at 379, 2. The Building The Building was located at 434 - 438 Rantoul St. in Beverly, on the corner of Rantoul and Elliott Streets. It was a three-story wood-framed, mixed-use building that was of “balloon construction,” which meant fire stops were not built into the wood framing between the floors. The first floor of the Building contained a few stores, including Davis drugstore and a barbershop. The second and third floors of the Building contained the ECRH, which consisted of approximately thirty-five rooms. A front entryway alcove located adjacent to the sidewalk on Rantoul St. provided access to the ECRH through a metal exterior door to the ECRH on the second and third floors of the Building. The front alcove had three interior walls, one of which contained Page 7 of 68the metal exterior door, which opened to an interior stairwell that led to the ECRH on the second and third floors of the Building. The floor of the front alcove was concrete. The Davis drugstore, which was on the comer of Rantoul St. and Elliot St., was adjacent to the left side of the front entryway alcove of the Building (when facing the Building). A barbershop, located at 438 Elliot St., was adjacent to the right side of the alcove. It had a glass entry door and glass front windows. There was a barber's pole in the front window closest to the aleove. See Trial Ex. 7, which was admitted at the Motion hearings as Ex. 10C.> As is discussed below, the fire was said to have started inside the front alcove at the bottom comer of the wall, to the right of the metal exterior door (when facing the Building). 3. The Fire In The Front Alcove According To Responding Firefighters On July 4 at approximately 4:15 a.m., Officer Duane Hathaway of the Beverly Police Department ("BPD") was on patrol approximately one-half mile from the Building when he observed a fire burning.® Upon seeing the fire, he “notified the [police] station,” drove to the Building and parked near the front entrance. There were no other cars parked in front of the Building at the time. Hathaway, who was the first emergency responder to arrive on scene, observed that the front alcove was engulfed in flames. He approached the front alcove and did not see a stack of newspapers nearby. Unable to © The Court will refer to the exhibits that were admitted during the trial as “Tr. Ex.” and those that were admitted during the Motion hearings as "M. Ex." ® Carver called Officer Hathaway as a defense witness at the trial. Hathaway explained to the jury that the trial prosecutor viewed his cooperation with the defense as disloyal. Page 8 of 68enter the Building, Hathaway went to the rear fire escape of the Building and rescued four people. At 4:18 a.m., Officer Clifford Woodfin of the BPD received a radio call that prompted him to go to the intersection of Rantoul and Elliott Streets. He saw that the front of the Building was fully engulfed in flames and people were screaming for help out the windows of the ECRH.” Meanwhile, at 4:18 a.m., the fire alarm dispatcher at the Beverly Fire Department ("BFD") overheard a police officer reporting a fire at the Building and dispatched firefighters to the scene. Upon arrival at the front of the Building, firefighters, including Lieutenant Louis Bennett, observed heavy smoke and a fire burning inside the front alcove. There was an “overlapping fire” coming from the second floor windows, directly above the entrance to the Building. Unable to enter the Building, the firefighters began fire suppression and ladder rescue efforts. 4, The Stack Of Newspapers After performing rescue efforts at the rear of the Building, Lt. Bennett returned to the front of the Building. The fire in the alcove had been extinguished On the right side of the floor of the alcove, Lt. Bennett observed a stack of newspapers that was “burt on top.” The stack of newspapers, which was tied together, had been delivered to the front of Davis drugstore at 4:10 a.m. by Harold Eastman.® The stack of newspapers, which was jammed against the wall, prevented 7 No fire equipment had yet arrived ° Shortly after delivering the newspapers to Davis drugstore, Eastman observed a fire burning at the Building. He saw that the newspapers were no longer where he had delivered them. Page 9 of 68Lt. Bennett from opening the exterior metal door to the Building. He used his heel to kick the stack out of his way and onto the nearby sidewalk. Lt. Bennett then opened the front door to the Building, which was unlocked, and entered. He did not smell gasoline or “[anylthing of that nature” while inside the alcove. 5. Evidence Regarding The Presence Of An Accelerant After the fire was extinguished, investigators observed loose newspapers and a stack of twelve newspapers near the entrance to the barber shop. According to Francis Hankard, a chemist with the Massachusetts State Police ("MSP"), a sample taken from the stack of newspapers, which were burnt around the edges, tested negative for the presence of flammable liquids. However, a sample taken from a wall of the interior first floor stairway of the Building located immediately inside the front doorway tested positive for the presence of kerosene or charcoal lighter fluid. 6. The Fire Investigation By Fire Marshal Doran Doran, the commanding officer of the Investigation Bureau at the Nassau County, New York Fire Marshal's Office, was the only fire investigator that testified at the trial. He was a very experienced fire investigator, having taken (and taught) hundreds of hours of specialized fire investigation training. Doran served as a consultant with the United States Bureau of Aleohol, Tobacco, and Firearms regarding cause and origin of fire, and was a member of a national fire investigation response team, On July 9 and 10, 1984, Doran examined the fire scene at the Building, which he noted was “balloon construction.” Page 10 of 68Doran observed a “protected area’ (i.e., an uncharred section) on a wall inside the front alcove of the Building (“Protected Area’). The Protected Area was located on the bottom of the wood wall on the right side of the front alcove, adjacent to the exterior metal door to the Building. Doran was told that a responding firefighter had discovered and removed a stack of newspapers that was found near the wood wall where he observed the Protected Area. Doran concluded that the point of origin of the fire was the Protected Area. He determined that the fire had a single point of origin because “{t]here were no other lower points of burn.” He explained that in determining the point of origin, he looked for the lowest point of burn because “fire will not burn down.””? Doran testified that the cause of the fire was the ignition of the stack of newspapers with an open flame that was applied to a “flammable liquid,” such as gasoline, lighter fluid, methylethylene, or acetone. He conceded that he could not identify the precise flammable liquid used Doran determined that the bundle of newspapers was laying on the floor of the front alcove when it was ignited. He concluded that the stack had left an uncharred area on the wall (i¢., the Protected Area) because Lt. Bennett had kicked the bundle away while it was burning, but still intact. According to Doran, after originating at the Protected Area, the fire spread up the wall of the alcove and entered the Building through a glass transom located above the © Photographs that were admitted into evidence at the trial (and at the hearings on the Motion) clearly depict an uncharred portion of a wall. See M. Exs. 10B and 10D. *° Doran ruled out “drop down” burning, which, as is discussed below, is the spreading of a fire by the falling of burning materials. Page 11 of 68exterior metal front door. From there, the fire travelled quickly to the second and third floors of the Building due to its “balloon construction.” Doran based his conclusion that a flammable liquid was used on two observations he made of the front alcove. First, he observed the presence of large blisters that resembled the back of an alligator (i.e., “alligatoring’) on the wall above the Protected Area. He testified that the alligatoring was evidence of a quick generation of a high temperature, which was consistent with the ignition of a flammable liquid and inconsistent with the newspapers being the sole ignition source. Second, Doran observed a “swirling smoke stain” on a formica-covered wall inside the front alcove, which he concluded was evidence of the presence of hydrocarbons that are found in flammable liquids. Doran dismissed the results of the testing that found no evidence of a flammable liquid in the newspapers or in the front alcove because, in his view, the heavy volume of water used to suppress the fire would have washed it away. Doran testified that he ruled out an electrical matfunction as the cause of the fire. He explained that copper wiring, like that present in the Building, becomes brittle to the touch when it is heated internally by an electrical surge. However, the only wiring he observed in the front alcove was a copper wire, which he determined had retained its flexibility (ie., the wire was not brittle) Doran also ruled out an accidental ignition of the newspapers by a lit cigarette or match as the cause of the fire because he believed that would not have generated sufficient heat to ignite the stack of newspapers. Moreover, Doran testified that he ruled out “spontaneous heating” as the cause of the fire because there was nothing found in Page 12 of 68the Building that was susceptible to spontaneous combustion, such as linseed oil or fir oil. 7. Carver’s Confrontation With Nickerson On July 3°¢ Carver and Lisa Maggiacomo ("Lisa")"" were in a longstanding relationship. They had been engaged to be married until May 1984, when Carver ended the relationship and asked that she return the engagement ring he had given her. In the following weeks, they remained friendly, although Carver was very upset over the break-up and wanted to reunite In the meantime, Lisa went on two dates with Nickerson, who worked at a pool hall next door to the AHOP. Carver was jealous of their budding relationship and told Lisa that he would kill Nickerson over it. Prior to the fire, neither Lisa nor Carver knew that Nickerson lived at the ECRH. During the early evening hours of July 3, 1984, Carver confronted Nickerson in an alley between the AHOP and the poo! hall. Thomas Page, Lisa (Dion) Kobuszewski, and Laura Proulx were present during the confrontation; all three of them knew Carver and Lisa Page, who worked at the pool hall with Nickerson and Kobuszewski, testified that he heard Carver tell Nickerson that if Nickerson ever saw Lisa again, “t'l kill you and burn your house down.” Nevertheless, according to Page, Nickerson did not appear to. be in any fear during the argument. Laura Proulx and Kobuszewski denied hearing Carver threaten to bum Nickerson’s home. Instead, Laura Proulx testified that she heard Carver say that he did not want Lisa to see Nickerson anymore, and if she did, “The Court will refer to Ms. Maggiacomo by her first name because she shares a surname with her brother, Jim Maggiacomo, who is mentioned later in the decision. Page 13 of 68Carver “was going to see him burn in hel.” Kobuszewski testified that Carver told Nickerson something like, “stay away from Lisa or Ill kick your face across the state.” 8. Carver's Clothing And Car On July 14, 1984, Carver was interviewed by Sergeant John Malone of the MSP. When asked, Carver told Sgt. Malone about the confrontation he had with Nickerson on July 3 and freely admitted that, prior to the fire, he was mad at Nickerson and wanted to beat him up. Carver described the clothing he wore on the night of July 3", “bib overalls" and three T-shirts, and gave investigators the clothing, which were photographed and admitted as evidence at the trial Lisa and Pamela Proulx Flynn saw Carver wearing bib overalls and a T-shirt during the early morning hours of July 4". Lisa described the T-shirt as a light blue “muscle shirt” that had no writing on it, which she identified at the trial and was one of the T-shirts that Sgt. Malone collected from Carver. At the time of the fire, Carver owned a two door, blue 1974 Mercury Cougar. 9. Stanley Clark’s Identification Of Carver? On July 4", Stanley Clark was working as a cab driver in the Beverly area, which he knew quite well.'? He began his shift on July 3 at 7:00 p.m In the early morning hours, Clark was sent on a call to pick up two intoxicated people at the Danvers police station to bring them home to Beverly. At approximately 3:10 — 3:20 a.m., while traveling on Elliott St. in Beverly with the two customers seated ® The Court will provide significant detail regarding Clark's testimony because in the Motion Carver challenges the reliability of Clark's identification * The prosecutor began his direct examination of Clark by impeaching Clark with the fact that he was convicted in 1985 of assault and battery on a police officer and two drug possession charges, and was sentenced to a suspended jail sentence and an unstated period of probation. Page 14 of 68in the rear passenger seats of his taxicab, Clark stopped at a red light at the intersection of Elliott and Rantoul Streets. The Building was on his left. Clark saw three men standing near the front of the Building. Two of the men were standing together on-the corner, near the mailbox. Clark described the two men as being “older people[.] .. . one was rather heavy and the other was . . . small and thi Clark also saw a third man standing behind the two older men, fifteen feet from the mailbox. See Tr. Ex. 7, M. Ex. 10C. More specifically, the third man was standing near the window of the barbershop that displayed the barber's pole (i., the barbershop window closest to the front alcove of the Building). After the light changed, Clark drove through the intersection and turned onto Rantoul Street. While doing so, he observed that the third man, who was facing Clark, was “just standing there . . . leaning on the corner where the [barbershop] door and [barbershop] window met,” This man was 5'11", unshaven (i.e., with about one week of growth), had dark hair, and was wearing dungaree bib overalls and a dark shirt with white lettering on it displayed in an arc."® At the same time, Clark observed two cars parked at parking meters along a vacant lot on the same side of Rantoul St. as the Building: a green Oldsmobile and a dark blue car that looked like a Ford Mustang, Mercury Cougar, or Ford Torino. He saw that the blue car had “mag wheels” and the front grill was smashed."* Clark proceeded * Clark described the corner as well-lit by nearby street lights, a large sign on top of the Davis drugstore, and fluorescent signs at a gas station across the street. *® Clark stated that he was able to see the lettering on the shirt, which may have said “naked in Massachusetts,” under the bib overalls because it was in an arc. ® Clark identified the green Oldsmobile in a crime scene photograph while it was displayed to the jury. The blue car was said to have been outside the area depicted in the photograph. Page 15 of 68through the intersection, dropped off the two customers, and drove to a nearby Dunkin Donuts shop. ‘Approximately ten to twelve minutes after observing the man in the bib overalls, Clark drove down Rantoul St. towards the intersection at Elliott Street. The man and the ‘two older men were no longer present near the Building. While driving through the intersection, Clark saw a stack of newspapers near the front doorway of the Davis drugstore. At approximately 3:45 a.m. Clark once again drove down Rantoul St. in the area of the Building. He observed a fire truck blocking the intersection adjacent to the Building and fire coming out of the front of the Building.’ Clark also noticed that the stack of newspapers he had seen earlier near the front doorway of the Davis drugstore was no longer present. On July 13, 1984, Lieutenant Al Duemling of the BPD and Sgt. Malone of the MSP appeared without advance notice at Clark's home in Beverly and asked him to Participate in a formal interview at a future time. This was the first contact Clark had with investigators. On July 14, 1984, after Sgt. Malone had interviewed Carver and collected the clothing that Carver said he was wearing on the night of July 3°, Clark met with Sgt Malone and was asked to describe the clothing that the suspect!® was wearing. 7 Although he was not wearing a watch and the taxicab did not have a clock, Clark estimated the time of the events on July 4" by referring to a handwritten call log kept by the cab company. Tr. Ex. 17 ‘® For ease of clarity, the Court will hereafter refer to the man Clark saw standing in front of the Building before the fire as "the suspect.” Page 16 of 68On July 16, 1984, Clark met with Detective Bouchard'® of the BPD and Sgt Malone at the BPD.*° He viewed photographs of the Building that were taken during the fire and saw the green Oldsmobile in one of the photographs. Clark told the investigators that the suspect had black hair and was wearing a dark blue T-shirt with white lettering that said something like “make it in Massachussetts.” He did not mention that the suspect was wearing overalls.?" Sgt. Malone and Det. Bouchard then drove Clark to the parking lot at Beverly Hospital in a police vehicle, knowing that Carver's blue Mercury Cougar was parked there, to see if Clark “could identify the [blue] car’ that he had observed parked near the Building prior to the fire. It was mid-aftemoon and there were 150 cars parked in the parking lot at the time. While seated in the front seat of the vehicle, Clark picked out Carver's blue Mercury Cougar, which he thought “could [have been] the car if it was a litte darker,” although from his vantage point he could not see whether the car had the same mag wheels and damaged front grill.2 A few days later, while driving on Bridge St. in Beverly, Clark saw Carver seated in the blue car he had identified in the hospital parking lot. Carver was cleaning his ** Det. Bouchard's first name was not mentioned at the trial or the Motion hearings. 2° A stenographer was also present. 7" On July 14, 1984, two days before the formal interview on July 16", Sgt. Malone and Clark. met and discussed the clothing that Clark observed the suspect wearing. This was after Sgt. Malone had interviewed Carver and collected the clothing that Carver said he was wearing on the night of July 3%, including the bib overalls, The record provides no more pertinent details about what they discussed at the time. 2 Clark made his observations solely from the front seat of the vehicle; he did not exit the Vehicle while in the hospital parking lot. Page 17 of 68sunglasses at the time. According to Clark, Carver's hair was shorter than the suspect's hair. On July 23, 1984, Clark, who was accompanied by his son and his then- girlfriend, met with Sgt. Malone and Lt. Duemling at “the command post,” and he told them about seeing Carver in the same car he had pointed out in the hospital parking Iot on July 16% On July 24, 1984, Clark again met with investigators and told them, for the first time, that the suspect had been wearing bib overalls.”® Thereafter, Clark moved to California. On August 21, 1984, Clark, who had been told during a previous telephone call “that a photo pack had been sent up from Massachusetts,” went to the local (California) sheriff's department to participate in a photo array identification procedure. Before being shown the photographs, Clark read and signed a preprinted form, a copy of which was admitted into evidence. According to the prosecutor, who read it to the jury during the direct examination of Clark, the form stated the following: You will be asked to look at a group of photographs. The fact that the photographs are shown to you should not influence your judgment. You should not conclude or guess that the photos contain the picture of the person who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss the case with other witnesses or indicate in any way that you have identified anyone, % This was ten days after Carver told the investigators that he had been wearing “bib overalls” on July 4" and after he had given them the overalls. Page 18 of 68Tr. Ex. 18% The officers then simultaneously displayed nine Polaroid photographs to Clark, which included Carver's photograph. M. Ex. 101 (‘Photo Array”). Clark “picked out” two photos, First, he selected the photo of the suspect, i.e., Carver's photo Tr. Ex. 19. Next, he selected a photo (Tr. Ex. 20) ‘to show that this is what the [suspect's hair looked like on the night that [he] had seen them at the [Building].” He told the officers “[{[hat's the length of the hair or type of cut that it was on that night." (emphasis added). In approximately January 1985, Clark moved back to Beverly from California. Clark's next contact with the investigators was in November 1987, when they showed the Photo Array to him for a second time. He once again selected Carver's photo (Tr. Ex. 19) and the same photo of the man with the aforementioned representative hair length or hairstyle (Tr. Ex. 20). In January 1988, while at the District Attorney's Office with the trial prosecutor and Sgt. Malone, Clark was shown the Photo Array for a third time with the same 2 Immediately after the prosecutor read the quoted excerpt to the jury, the judge instructed the jurors as follows: Let me interrupt just briefly. Madam forelady, ladies and gentlemen, that document is something that you may consider as evidence of the circumstances surrounding an effort at identification. Yes, an effort at identification through photographs. It is a circumstance that may be taken into consideration by you. The exhibit does not in any way prove the truth or falsity of the text itself. in that respect, it is hearsay and it is inadmissible. So, you may not consider it as establishing the truth or falsity or reliability of the assertions that are made in the text, only [Sp.] one of the circumstances surrounding the identification. You may consider it as [sp.]it assists you in believing an identification or it does not assist you in believing an identification has or was not made. 25 When asked during re-direct examination what he told the officers when he selected the suspect's photograph, Clark replied that “exactly” what he told them was “Iyles, I'm sure that this is the guy.” Page 19 of 68results, although he had some difficulty explaining to the prosecutor why he selected the second photograph. On April 21, 1988, Clark participated in a lineup identification procedure at the Danvers Police Department. Before viewing the lineup, “{he] was given a piece of paper to read,” which was titled “Instructions for Lineup” (Tr. Ex. 21). According to the prosecutor, who read it to the jury during the direct examination of Clark, the Instructions for Lineup stated the following: We are going to ask you to observe a group of men. Our purpose in doing so is to determine whether or not you believe any of the men in the group is the man who you saw standing outside of the Elliott Chambers on July 4th, at about 4:00 in the morning wearing bib overalls. When you enter the room where the men are, they will be facing you. After you have had the opportunity to view them frontally, they will be asked to present a right and left profile and then to return to a frontal position. The men will be holding numbered cards. If you see anyone whom you believe to be the person who is standing in front of the Elliott Chambers on July 4, 1984, at about 4:00 a.m., wearing bib overalls, write his number at the bottom of the sheet. If you do not see anyone who you believe to be that person, write “None.” Take as much time as you need to observe each man with care. Tr. Ex. 21 (emphasis added). Clark was then put in a room with the prosecutor and defense counsel (and two others), and was asked to look at eight men through a one way mirror. Carver was positioned as No. 6 in the lineup. After viewing the men, Clark stated, “I believe No. 6 is the person that I saw. Can Ihave him step forward?" Carver was directed to step forward and Clark identified Carver as the suspect, telling the people present in the room that “yes, that’s the person that | saw.” % The prosecutor read this to the jury during the direct examination of Clark. Page 20 of 68Clark did not know Carver and had never seen him before observing the suspect standing in front of the Building in the early morning hours of July 4, 1984. On cross-examination, Clark conceded that, over time after first being interviewed by police, “I remembered more. | remembered many different things as time went on.” Clark identified Carver as the suspect in the courtroom during the trial. For his part, Carver called James Valentine as a witness. Valentine testified that he had known Clark for thirty years since they were children. In March'1989, while at a bar, Valentine overheard Clark telling someone that he would have been in California, rather than Beverly, but the police were holding his "PO" (probation) record “over his head” and forcing him to testify.2” 10. Carver's incriminating Statements i. Carver's Statements at Project Rap in July 1984 On July 22, 1984, Lisa went to Project Rap, a social service agency where she had been receiving services, to meet with her longtime social worker, Susan Ohstrom. While Lisa was there, Carver called and went to Project Rap, and asked Ohstrom, who knew Carver, if Lisa was present. Carver was tearful and upset, but left Project Rap without incident. A short time later, Carver returned and was very angry. While parked outside of Project Rap, Carver began throwing Lisa's belongings from his car. Ohstrom approached Carver and he stated, “You're a fucking bitch. I'll burn your place just like | 7 Clark denied saying this and denied that he was on probation in March 1989. Page 21 of 68did in Beverty."®8 Fearing for Lisa's safety, Olistrom drove her home and Carver followed them. Ohstrom reported the incident to the police and was later interviewed by investigators. ‘Sandra Caproni, another social worker at Project Rap who knew Carver, was present when Carver was throwing things from his car. She testified that she heard Carver say the following to Lisa: *! want your fucking friends to know I love you. They're nothing but a bunch of fucking jerks. This is the next place I'm going to bum.” ii, Carver's Statements to Colleen Coletti in October 1984 In October 1984, Carver called Colleen Coletti, a close friend and his former partner in a lawn mowing business. Coletti was staying at the home of the Proulx family at the time. Carver was crying and said that he needed to talk to her, but wanted to do so in person because he thought his phone was “tapped.” Coletti then drove to Carver's home in Danvers and spoke to Carver in his bedroom. Carver had been drinking, “but wasn’t intoxicated.” Carver was very upset about his break-up with Lisa, He said that he had planned to marry Lisa and have children with her, and wanted her back. Carver showed Coletti an engagement ring and some photos of him and Lisa Coletti and Carver then went to the living room and sat down. Carver, who was crying and rocking back and forth, slid down to the floor from the chair he had been sitting upon. He told Coletti that he wanted to kill himself and “that he didn’t mean to hurt anyone.” She asked Carver what he meant, and he responded, “the fire.” She asked * Lisa testified that Carver stated, “You better watch out or I'll burn that place down, too.” Page 22 of 68Carver how he set the fire, and he responded that he used “[nJewspapers, gasoline and a match” and set the fire “in the stairwell.” Carver said that ‘he followed them home" in his car, but he didn’t say whose home he was referring to and never mentioned the ECRH or the Davis drugstore. He told Coletti that “he wanted to scare Lisa and the guy she was seeing.” Coletti told Carver to call the police and tell them what he just told her, but Carver said he “was afraid the police were just going to throw him in jail and not give him any help.” During cross-examination, Coletti conceded that she questioned whether Carver was being truthful about claiming to have set the fire.2° After speaking with Carver, Coletti returned to the Proulx home where she was staying at the time. Upon arrival, she told at least four people about Carver's statements, including Jim Maggiacomo (Lisa's brother), who was then a firefighter with the BFD, who told her to call the police. Coletti unsuccessfully attempted one time to contact Trooper Garvin, who had interviewed her about the fire in July 1984. She did not attempt to contact the police again because she ‘was scared [arid] didn’t want to get involved." iii. Carver's Statements to Andrew Smialek in November 1986 In November 1986, when Carver was employed as a bus driver, he told a co- worker, Andrew Smialek, that, "I lit the fire but they have no proof, so I'll get off.” “On cross-examination, the judge precluded defense counsel from inquiring whether the defendant had lied to [Coletti] in the past to gain her sympathy.” Carver, 33 Mass. App. Ct. at 383 (ruling that ‘{t]he judge properly sustained the objection, because the question called for a mere opinion or speculation as to another person’s state of mind."). ® Trooper Garvin and other detectives contacted Coletti in March 1987 and knew about Carver's statements to her. Page 23 of 68,Smialek felt ike this was “a cry for help” by Carver. But, Smialek did not want to “get involved” and walked away from Carver, and did not report the statement to authorities. However, Smialek eventually told a co-worker about the conversation and she contacted the investigators, who later interviewed Smialek in March 1989. 11. Carver's Defense Carver called twelve witnesses at the trial. Carver's parents testified that he was at home on July 4"* at the time of the fire. Richard Kraus, the owner of the taxi cab business that Carver worked for at the time of the fire and which was located near the ECRH, testified that he had a cookout on July 4" that Carver and Lisa attended together. Kraus observed Carver to be in a good mood and there was nothing unusual about his demeanor. Kraus also testified that Carver parked his vehicle near the taxi business at 7:00 p.m. on July 3, when Carver began his shift, and that it remained parked there until late the next morning (well after the fire started). Carver called Blanche Poor and Diana Hampton, two residents of the ECRH who survived the fire, as witnesses. They both knew Nickerson well, did not know Carver, and were rescued from the fire by firefighters. Poor and Hampton described one of the ‘occupants of the ECRH who died during the fire as being 5'10" — §'11" tall, in his late 20s, who always wore bib overalls. Lori Brennan testified that she was from Beverly and did not know Carver. But, she saw coverage of the first trial in the news and approached the defense after the first trial ended. In August 1984 while Brennan was working on an ice cream truck in Beverly, Lisa Kobuszewski (Lisa Dion at the time), who Brennan knew from high school, Page 24 of 68told Brennan that she and a friend set the fire at the ECRH as an initiation ritual to join a cult group of witches. Brennan conceded that Kobuszewski appeared to be on drugs at the time of their encounter at the ice cream truck B. RELEVANT EVIDENCE NOT PRESENTED AT THE SECOND TRIAL Before discussing the newly discovered fire science evidence, the Court will turn to the results of a fire investigation that was conducted immediately after the fire by Trooper James Bradbury of the Massachusetts Fire Marshal's Office. Although Tpr. Bradbury did not testify at the second trial and none of his findings. were presented to the jury, Tpr. Bradbury's findings are relevant to the Court's determination of whether the conclusions reached by the parties’ experts, Dr. Beyler and Mazza, are based on advances in fire science." ‘Tpr. James Bradbury's Fire Investigation In July 1984 Tpr. Bradbury responded to the scene on July 4 before the fire was fully extinguished. He conducted an extensive fire investigation, which included interviewing firefighters who responded to the scene and examining the scene shortly after the fire was fully extinguished. Tpr. Bradbury's examination of the scene continued for several days. Tpr. Bradbury learned that first responding firefighters “found heavy fire involvement from the front doorway to the windows on the second and third floor.” M. Ex. 8B, p. 4. ®* Mazza interviewed Tpr. Bradbury, who vividly remembered the fire and his investigation. ® Tpr. Bradbury's four page, single-spaced report, dated August 16, 1984, was admitted into evidence at the Motion hearings as M: Ex. 8B. Page 25 of 68He observed several newspapers immediately outside of the entrance to the front alcove.’ The edges of the newspapers “showed minor burning.” Id. The newspapers were later tested for the presence of accelerants and “no trace of accelerants were detected."™ Id. ‘Tpr. Bradbury observed that the wooden walls in the front alcove on both sides of the metal front door of the Building suffered heavy fire damage, and that the hinges on the door showed characteristics consistent with the door being closed at the time of the fire. He also observed the Protected Area on the wall inside the front alcove. ‘Tpr. Bradbury determined the fire's lowest point of bum was the Protected Area and “this [was] indicative of the area of origin of the fire.” Id. He did not observe any evidence of drop down burning in the front alcove. A state electrical inspector, John Harris, examined the front alcove on July 5, 1984.55 Harris found no evidence of any electrical malfunction in the alcove area or ina fluorescent Davis drugstore sign that was located above the alcove. He found “no evidence of an outside overhead light or fixture at [the] entryway and no evidence of any wiring of same.” M. Ex. 8C. Tpr. Bradbury eliminated an electrical source as an ignition source for the fire because “[nJo electrical devices were found at or near the floor area [of the front ® although he did not mention it in his final report, Tpr. Bradbury learned that first responding firefighters encountered a stack of newspapers in the front alcove. °* This was the only mention of accelerants in Tpr. Bradbury's report. *® Like Tpr. Bradbury, Harris did not testify at the second trial and his electrical inspection was not mentioned. Harris’ report, dated July 6, 1984, was admitted into evidence at the Motion hearings as M. Ex. 8C. Page 26 of 68alcove.” M. Ex. 8B, p. 4. He also eliminated lightning and spontaneous combustion as causes of the fire. ‘Tpr. Bradbury determined that the cause of the fire was the direct application of a heat source to newspapers located on the floor of the front alcove. Tpr. Bradbury opined that the flames spread up the wooden walls in the front alcove, through the transoms over the exterior door to the Building, and once inside the Building, the fire spread upward quickly into the second and third floors. C. POST-TRIAL DEVELOPMENTS IN FIRE SCIENCE The NFPA Guide At the time of the fire in 1984, fre investigators, who were often former firefighters, mostly lacked scientific training and, instead, relied on their practical experience in conducting fire investigations and certain longstanding “rules of thumb.” In short, there were few standardized procedures or methodologies used by fire investigators in 1984. That radically changed in 1992 with the publication by the National Fire Protection Association (‘NFPA") of the Guide for Fire and Explosion Investigations,°° which introduced the scientific method and scientific approaches to fire investigation. The NFPA Guide, which Dr. Beyler and Mazza agreed is the gold standard for fie investigations (Le., the generally accepted standard of care), debunked certain long held beliefs (ie., “rules of thumb") used by fire investigators, including Doran, such as the belief that the lowest point of burn is always the point of the fire's origin and the * The latest edition of the complete NFPA Guide for Fire and Explosion Investigations (2021 ed.) (‘NFPA Guide") was admitted at the Motion hearings as M. Ex. 12. Page 27 of 68belief that the presence of “alligatoring” is evidence of the use of a flammable liquid as an accelerant.5” Significantly, the 2011 edition of the NFPA Guide for the first time precluded the use of ‘negative corpus” reasoning, also known as process of elimination reasoning, in fire investigations, a concept that was long commonly-used by fire investigators, including Doran in this case. In broad terms, negative corpus reasoning is concluding that a fire was intentionally set by ruling out accidental causes, whether or not there is specific evidence of intentionality (i.., the failure to find an accidental cause of a fire means that the fire was set intentionally). ‘According to the NFPA Guide, negative corpus reasoning is “[ijdentifying the ignition source for a fire by believing to have eliminated all ignition sources found, known, or suspected to have been present in the area of origin, and for which no supporting evidence exists.” M. Ex 12, NFPA Guide, | 19.6.5. The NFPA Guide also states that, “[t]he negative corpus process is not consistent with the scientific method, is inappropriate, and should not be used because it generates untestable hypotheses and may result in incorrect determinations of the ignition source and first fuel ignited.”®* Id. ® According to the SJC, "the blistering effect that was thought to be consistent with the use of flammable liquid is now known to be found in many types of fires, whether or not flammable liquids were present.” Commonwealth v, Rosario, 477 Mass. 69, 75 (2017) *® As is discussed in the next section of the Court's decision, it is an understatement to say that negative corpus reasoning is antithetical to the scientific method, Page 28 of 68Embrace Of The Scientific Method By The NFPA Guide The NFPA Guide’s embrace of the use of the scientific method in fire investigation in 1992, three years after Carver's trial, was transformative in the field of fire science and warrants some explanation.2? - Modern fire investigation methodology applies the scientific method to determine three things. First, the area of origin is determined. The area of origin is the “general geographic location within a fire scene, in which the Point of Origin of a [flire . .. is reasonably believed to be located.” Id. at {| 3.3.13. Next, if possible, the point of origin, i.e., the precise location where the fire started, within the area of origin is determined. Last, the cause of the fire is determined The scientific method “includes recognizing and defining the problem to be solved, collecting data, analyzing the data, developing hypothes{e]s, and most importantly, testing the hypothes[e]s."*° Id. at | 18.2. According to Dr. Beyler, the application of the scientific method in modem fire investigation involves three steps: data collection, formulation of hypotheses, and testing of the hypotheses. As stated, modem fire investigators first apply these steps to determine an “area of origin” of the fire. “The origin of a fire is one of the most important hypotheses that an %® “Fire science’ is defined in the NFPA Guide as “[{Jhe body of knowledge concerning the study of [fire and related subjects (such as [clombustion, flame, products of combustion, heat release, heat transfer, fire and explosion chemistry, fire and explosion dynamics, thermodynamics, kinetics, fluid mechanics, fire safety) and their interaction with people, structures, and the environment." Id. at 3.3.81. “The “scientific method! is defined in the NFPA Guide as, "[t]he systematic pursuit of knowledge involving the recognition and definition of a problem; the collection of data through observation and experimentation; analysis of the data; the formulation, evaluation and testing of hypotheses; and, where possible, the selection of a final hypothesis.” M. Ex 12, NFPA Guide, {| 3.3.167. Page 29 of 68investigator develops and tests during the investigation. Generally, if the origin cannot be determined, the cause cannot be determined, and generally, if the correct origin is not identified, the subsequent cause determination will also be incorrect.” Id. at [18.1 Next, the scientific method is applied to determine the point of origin. However, “Jn some cases, it will be impossible to fix the point of origin of a fire. . .. Not identifying point of origin will not necessarily preclude determining an origin and cause. In some situations, the extent of the damage may reduce the ability to specifically identify the point of origin, without removing the ability to put forward credible origin and cause hypotheses.” Id. at 18.2.1.3. Lastly, modern fire investigators use the scientific method to determine the “cause” of the fire, which is defined by the NFPA Guide as “[{Jhe circumstances, conditions, or agencies that brought about or resulted in the [flire.” Id, at 3.3.27. When formulating cause hypotheses, the investigator must consider all potential ignition sources and first burned material within the area of origin. The cause of the fire is determined after all cause hypotheses are tested and only one remains. At the conclusion of hypothesis testing, the cause is considered “undetermined” in the absence of a single surviving cause hypothesis.*" *' The NFPA Guide explains the process for concluding that a fire cause is undetermined as follows: In circumstances where all hypotheses have been rejected, or if two or more hypotheses cannot be rejected, the only choice for the investigator is to conclude that the fire cause, or specific causal factors, is undetermined. It is improper to base hypotheses on the absence of any supportive evidence. That is, itis improper to opine a specific fire cause, ignition source, or fuel that has no evidence to support it even though all other such hypothesized elements were eliminated Ex 12, NFPA Guide, {] 19.6.5.1 Page 30 of 68Dr. Beyler And Mazza Agree That Some Of Doran’s Conclusions Are Unri Dr. Beyler and Mazza agree with Doran's identification of the Protected Area. Pointing to the NFPA Guide, they also agree that there were “rules of thumb” that Doran applied when investigating the fire in this case that have since been deemed unreliable by the fire science community. Those debunked rules of thumb are: (a) the lowest point of burn is always the point of origin of the fire; (b) the appearance of shiny “alligatoring” char patterns and “smoke swirl" pattems are indicative of the presence of a flammable liquid ignition source;*? and, (c) by measuring the depth of the charring, a fire investigator could calculate approximately how long that area had burned, Dr. Beyler and Mazza also agreed that whether a flammable liquid was used to ignite the fire at the Building could not be determined (i., the use of a flammable liquid ignition source was ‘undetermined”). Nevertheless, Dr. Beyler and Mazza disagreed on several points conceming the reliability of Doran's fire investigation.*? Dr. Beyler’s Findings Dr. Beyler believed that Doran's conclusions are flawed for at least three other reasons. First, Dr. Beyler opined that ignition of the stack of newspapers could not have caused the fire because: (a) Lt. Bennett of the BFD was able to kick the stack of newspapers aside and could only have done so if the twine used to tie the bundle together was still present, yet twine would have burned before the newspapers; and, (b) * The first version of the NFPA Guide, which was released in 1992, dispelled the myth of “alligatoring.” ‘ Neither party challenged the qualifications of Dr. Beyler and Mazza as fire investigators. Page 31 of 68the stack of newspapers could not have been a sufficient fuel source to cause the amount of fire damage present in the front alcove. Second, Dr. Beyler challenged Doran's exclusion of an electrical malfunction as a possible cause of the fire because, by focusing solely on the absence of overheated copper wiring due to overloading, which Doran ruled out because the copper wiring in the front alcove lacked brittleness, Doran ignored other more prevalent possible electrical fire initiation scenarios. Moreover, in excluding an electrical cause for the fire, Doran focused solely on the front alcove and failed to consider an electrical cause in other areas of the Building. Third, Dr. Beyler contested Doran’s conclusion that there was no evidence of drop down burning in the front alcove that could have caused the lowest point of burning, a consideration required by the NFPA Guide when determining the area of origin.** During the first trial, while referring to photographs of the alcove, Doran testified that the ceiling area of the alcove “was intact for the most part” and showed no evidence of drop down burning. However, Dr. Beyler points to photographs of the fire damage in the front alcove that show that the ceiling overhang above the alcove had completely bumed away and a structural part of the ceiling is seen hanging down. Dr. Beyler believes, therefore, that drop down burning in the front alcove area could not be eliminated as the cause of the lowest point of burning in the alcove, which Doran claimed was the point of origin of the fire. Dr. Beyler ultimately concluded that the area of origin of the fire was the overhead area of the front alcove because it was far more extensively burned than the 4 The NFPA Guide defines “drop down" burning as “[tJhe spread of [flire by the dropping or falling of buming materials. Synonymous with Fall Down." M. Ex. 12, 3.3.50. Page 32 of 68alcove walls. He further concluded that he could not determine the cause of the fire because of flaws in Doran's investigation, including Doran's failure to adequately rule out an electrical source. ichael Mazza’s Findings Mazza agreed with Tpr. Bradbury's finding that the Protected Area was the area of origin of the fire. He also agreed with Doran's opinion that the Protected Area was the point of origin. Mazza also agreed with Doran's and Tpr. Bradbury's determinations that drop down burning did not cause the lowest point of burn they observed at the bottom of the alcove wall because there was no heat source above the alcove, such as a light fixture, that could have overheated. He further agreed with Doran's and Tpr. Bradbury's findings that an electrical fire can be ruled out as a cause of the fire because the only wiring observed in the front alcove after the fire, which is visible in photographs, was part of a low voltage fire alarm system that would not typically cause a fire when it malfunctions. Mazza concluded that the cause of the fire was an open flame applied to the side of the newspapers while the stack was propped up against the wall with the side of the newspapers facing up, thus creating the Protected Area.“® ‘According to Mazza, the flames then spread up the wooden wall in the front alcove (which, in his opinion, easily ignited due to the presence of paint on the wall), through the transoms over the exterior metal door, into the interior of the first floor of the Building, and then up the stairwells to the second and third floors of the Building. * Mazza concluded that the stack of newspapers was not lying flat on the ground when ignited with the open flame because it would not have sufficiently “flamed-up.” Page 33 of 68As stated, Mazza disagreed with Doran's conclusion that a flammable liquid was used as the ignition source for this fire because there was no evidence of the presence of a flammable liquid near the area of origin. Thus, like Dr. Beyler, Mazza cannot say whether or not a liquid accelerant was used, i.e., the presence of a flammable liquid is undetermined. D. POST-TRIAL DEVELOPMENTS IN THE SCIENCE OF EYEWITNESS IDENTIFICATION AND MEMORY, As stated, Carver called Dr. Franklin, who has a Ph.D. in Psychology from Stanford University, as a witness at the hearings on the Motion Dr. Franklin Is Qualified To Testify As An Expert In The Science Of Eyewitness Identification And Memory Until 2019 when she retired, Dr. Franklin was an Associate Professor of Psychology at Stony Brook University in New York for 30 years. Her expertise has long focused on the science of memory, cognition, and memory errors. Her expertise extends to the subject of eyewitness identification science Dr. Franklin has testified dozens of times in quite a few states, including Massachusetts, as an expert in the area of eyewitness identification and memory At bottom, the Court has little difficulty in ruling that Dr. Franklin is qualified to testify as an expert in the science of eyewitness identification and memory, and the evolution of the scientific principles and the underlying research, The Science Of Eyewitness Identification And Memory Has Evolved Significantly Since Carver's Trial In 1989 According to Dr. Franklin, research into eyewitness identification and memory began in the 1970s, but significantly grew and accelerated after Carver's trial in November 1989. Page 34 of 68Since the trial, there is consensus in the scientific community that human memory does not work like a videorecorder. Rather, the research has demonstrated that the brain’s informational encoding and recall processes are flawed. For example, people routinely retrieve factual details that were successfully encoded in the brain based on an eyewitness experience, even as they recall details that are “filled in” by inference and incorporated from other external sources. The research has demonstrated that this phenomenon of memory reconstruction generates a significant risk that people will introduce factual errors into a recollection. Consequently, it is now understood that the accuracy of an eyewitness identification depends on how well-the brain initially encodes the memory of the appearance of a person's face, and the extent that post-event influences are introduced to that memory. Dr. Franklin Opined That Several Factors Made Stanley Clark’s Identification Of Carver Unreliable Dr. Franklin opined that the impact of numerous factors demonstrate the unreliability of Clark's identification of Carver as the suspect (and his identification of Carver's Mercury Cougar as a car parked adjacent to the Building at the time of the fire).“® The Court will address seven of these factors. First, according to Dr. Franklin, research has shown that people are particularly poor at remembering faces, especially faces of a stranger with whom they are unfamiliar. In this case, Clark did not know Carver and had never seen him before the day of the fire, * Although Dr. Franklin reached conclusions that challenge the accuracy of identification evidence introduced through Michaud and Eastman, the Court will focus solely on the evidence regarding Clark's identifications because he offered the only evidence at the trial which directly placed Carver at the scene. To be sure, as is explained below, the testimony of Michaud and Eastman in this area benefitted Carver. Page 35 of 68Second, the risk of misidentification significantly increases each time a witness is exposed to a suspect or the suspect's photograph, which has become known as the “mugshot exposure effect.” 42 Here, Clark was exposed to Carver's photograph three times during the serial photo array procedures conducted by police, which wefe conducted over almost three and one-half years (between August 1984 and January 1988) before he selected Carver during an in-person lineup procedure in April 1988. To be sure, Clark was exposed to Carver's face five times before he identified Carver at the trial, i.e. during three photo array procedures, the in-person lineup, and at the first trial. According to Dr. Franklin, research has shown that repeated exposures to a suspect's appearance by a witness produces a sense of familiarity, which can trigger false memory. Here, not only was Clark exposed to Carver's appearance five times before identifying him during the second trial, his exposure to Carver's appearance during the first trial was lengthy. Clark's testimony occurred over two days and covers 140 pages of the trial transcript. 4" In fact, in 2015 in Commonwealth v. Gomes, 470 Mass. 352 (2015), the SUC discussed this factor, observing that A prior viewing of a suspect in an identification procedure raises doubts about the reliability of a subsequent identification procedure involving the same suspect. . . "[Sluccessive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.” Id. at 375 (citations omitted). “* As for the mugshot exposure effect, the SUC stated in Gomes that [a] meta-analysis [in 2006] of eleven published articles showed that ‘prior mugshot exposure decreases accuracy at a subsequent lineup, both in terms of reductions in rates for hits and correct rejections as well as in terms of increases in the rate for false alarms.” Id. at 375 ~ 376 (citation omitted). Page 26 of 68In sum, the Court has litle difficulty in finding that, after being exposed to Carver's appearance for a fifth time, Clark had a sense of familiarity with Carver's appearance at the trial Third, the reliability of an identification falls when a witness's memory becomes contaminated by things, such as repeated identification procedures, and police interactions and feedback (j.e., “memory contamination”) According to Dr. Franklin, the instructions given to Clark by the Commonwealth at the beginning of the in-person lineup procedure, i.e., that Clark was to see whether any of the men in the lineup were the man “who you saw standing outside of the Elliott Chambers . . . wearing bib overalls," contaminated Clark's memory of the suspect and introduced bias in favor of Clark making an identification. The significance of the reminder that the suspect wore bib overalls and the potential for contamination ‘of Clark's memory warrants further discussion. Clark was told at the very beginning of the lineup that the “purpose [is to determine]. .. whether or not you believe any of the men in the group is the man who you saw standing outside of the Elliott Chambers on July 4th, at about 4:00 in the morning wearing bib overalis.” (emphasis added). He was then told to write down the applicable lineup number if he ‘saw “the person who is standing in front of the Elliott Chambers ... wearing bib overalls.” (emphasis added), The Court finds that twice reminding Clark that the suspect wore bib overalls and telling him that “the purpose" of the lineup was to see if the man in the bib overalls was in the lineup, significantly and unnecessarily increased the risk of contaminating Clark's memory of the suspect's appearance. Page 37 of 68Furthermore, Clark's memory was arguably further contaminated during the first trial in the following manner. When asked by the prosecutor what the suspect was wearing at the time he saw him, Clark answered “fhe was wearing overalls," not “bib” overalls. Nevertheless, later the prosecutor reminded Clark that they were, in fact, bib overalls when asking Clark ‘whether the area in which you saw that person with the bib overalls that you described is shown [in a photograph of the scene]."*? ' Moreover, the risk of memory contamination through intentional or unconscious signaling by police increases when a non-blind identification procedure is used (e.g., in the case of a photo array procedure, where either the administrator or an attendee during the procedure knows the identity of the target suspect). Here, the in-person lineup, and the second and third photo array procedures were “non-blind,” Fourth, Dr. Franklin cites memory decay, which is the deterioration of information stored in memory over time, as a factor in the unreliability of Clark's identification of Carver. The first time Clark spoke with the police and first attempted to describe the appearance of the suspect was on July 13, 1984, nine days after he observed the suspect. Additionally, the police did not conduct the first photo array procedure with Clark until August 21, 1984, seven weeks later, and Clark did not participate in the in- person lineup procedure until April 21, 1988, almost four years after the fire, Fifth, according to Dr. Franklin, research has demonstrated that decision latency, which is the length of time it takes a witness to make a selection during an identification procedure, is a factor in the accuracy of an identification. Simply put, the longer it takes, “It cannot be overstated how important it was to the Commonwealth's case that the only person that put Carver at the scene just before the fire saw the suspect wearing the exact type of clothing that Carver told (and gave) the police he wore during the hours before the fire. Page 38 of 68for a witness to make a selection during an identification procedure, the more likely the identification is inaccurate.*° Sixth, Dr. Franklin cites filler identification, which is when a witness selects a filer during an identification procedure, as an indicator of the unreliability of a witness's identification. According to Dr. Franklin, this demonstrates the witness's inability to uniquely identify the suspect due to a poor memory of the suspect's appearance. Here, Dr. Franklin points to Clark's simultaneous selection of the photograph of a filler during the array procedure as having a closer depiction of the suspect's hair length “or” hairstyle than that depicted in Carver's photograph Seventh, according to Dr. Franklin, research has shown that a witness's level of certainty of their identification of a suspect grows with time when, like Clark, the witness is repeatedly exposed to investigator feedback and information about the investigation, whether the feedback and information were deliberately, unintentionally, or unconsciously provided to the witness. Similarly, research has shown that a witness's level of certainty of their identification of a suspect is a poor predictor of its accuracy. Here, at trial, Clark conceded that his memory of the suspect's appearance grew with time as he met with investigators. Nevertheless, when asked during re-direct examination what he told the officers at the first Photo Array procedure in California *° In Carver's submissions, he argues that it took Clark twenty minutes to examine the first photo array before selecting his photograph. However, the Court's memory of Dr. Franklin's testimony at the Motion hearing regarding the length of Clark's decision latency (i., twenty minutes) is foggy, at best, and it could not otherwise find evidence in the record regarding the length of the decision latency. Nevertheless, the Court credits Dr. Franklin's testimony that research has shown that a decision latency of more than 30 seconds by a witness is at the “chance level” and a truly reliable decision is made within seconds. Page 39 of 68when he selected the suspect's photograph, Clark replied that what he told them “exactly” was “lyles, I'm sure that this is the guy.” CONCLUSIONS OF LAW In the Motion, Carver argues that certain advances in fire and eyewitness science since the trial in 1989 amount to sufficient newly discovered evidence which warrant the granting of a new trial.St |. THE LEGAL FRAMEWORK Atrial court may grant a new trial “at any time if it appears that justice may not, have been done.” Mass. R. Crim. P. 30(b). “The defendant has the burden of proving facts upon which he relies in support of his motion for a new trial.” Commonwealth v. Chatman, 466 Mass. 327, 333 (2013) (citation omitted). When deciding a motion for new trial, the Court must keep in mind four general principles. First, “(mJotions for a new trial are granted only in extraordinary circumstances.” Commonwealth v. Comita, 441 Mass. 86, 93 (2004) (citation omitted); see also Commonwealth v. Lopez, 96 Mass. App. Ct. 34, 38 (2019) (“A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions 5" In his Supplemental Memorandum, Carver advanced two additional theories in support of the Motion. First, that his trial counsel had engaged in significant personal and professional misconduct, which, inter alia, caused counsel to have a prejudicial conflict of interest. Second, that the jury was “unaware” that a witness, Florence Michaud, identified a resident of the ECRH as the perpetrator. See Paper No. 172, pp. 24-42. Not to be outdone, in his Post-Hearing Reply, Carver advanced two more additional theories in support of the Motion. First, that the failure to present Michaud’s identification of a third-party culprit at trial amounted to constitutionally ineffective assistance of counsel. See Paper No. 184, pp..32 - 33. Second, that the Commonwealth violated Carver's federal and state right to due process by allegedly failing to disclose evidence of Michaud’s identification of a third-party culprit and the police investigation into same. See Paper No. 184, pp. 33 - 36. The Court declines to address these issues given its ruling, infra, granting Carver a new trial based on other theories Page 40 of 68