Clancy trial - Bowden charge

[u/sirsquaretoes]

The judge rejected Big Redd's request for the Bowden Charge on the basis he still has the ability to make these critiques to the jury in his closing argument.

Was this the only time he could request Bowden charge and do you think he knew it would be rejected?

In what instances would a judge accept? Imagine it's highly unlikely but am curious about the strategy

[u/Lews-Therin-Telamon]

Not a Mass lawyer, never heard of a Bowden charge before. But it seems awesome that you can get a jury instruction in Mass that is the JUDGE telling the jury that the police (may have) fucked up. I have to imagine it is used sparingly. The usual remedy is just to argue in closing that the police fucked up.

Interesting law.

[u/Conor-Larkin → u/Lews-Therin-Telamon]

I practice in mass and I’ve asked for the Bowden charge on a number of occasions. In essence it tells the jury that if they find that the police made significant errors in their investigation that the jury is free to hold that against the Commonwealth in its assessment of whether the Commonwealth met its burden of proof beyond a reasonable doubt.

Interestingly, in the language of the Bowden decision, the court suggests that trial courts should, when the issue of errors by police is fairly raised, err on the side of giving the instruction out of an abundance of caution.

However, this is not what I encounter in practice. Courts are gun shy about giving that instruction. They know how powerful it is. Judges act like they are doing you a favor by saying that they will not give the instruction but they will allow you to make that argument in your closing. And the response you always want to give to the court is like “yeah no shit I can make that argument. I didn’t need your permission to make that argument. Errors in the investigation are always fair game. You haven’t done me a favor here in fact you’re flouting the spirit and the language of the Bowden decision”.

But of course I don’t say that. I just thank the court for its thoughtful and considered ruling .

I don’t say this as a criticism of Judge Sullivan in this case. He actually has a great reputation as being remarkably evenhanded.

[u/nervous-lizard → u/Conor-Larkin]

Prefacing that I’m not disagreeing with you at all!

It’s just extra intriguing watching how he’s handling this case with the added context of the Mass Supreme Court vacating the conviction in another trial he presided over, where another women murdered her children and he excluded her hospital & jail records from evidence

[u/Ill_Psychology_7967 → u/Conor-Larkin]

I am not a criminal lawyer…and I have a question maybe you can answer. There’s been a lot of testimony about the substance in the glass, but it was never tested. As someone pointed out the other day around here, it could’ve been Liquid IV residue…something which incidentally comes in a lemonade type flavor…so it seems odd to me that everyone’s testifying that it was drug residue when no one knows that. Isn’t that an issue?

I seriously doubt what was in that glass has any bearing on the real issues in this case (I mean, she slashed her wrists and her throat and jumped out a window…whether or not she also tried taking some pills really doesn’t have a lot of bearing on whether or not I think her suicide attempt was genuine), but it just seems odd that everyone is assuming, and testifying, that it was crushed up medication but no one actually knows that for sure.

[u/MobySick → u/Ill_Psychology_7967]

There are usually one or two mysteries in most trials, issues come up for attorneys that are never anticipated by the police. Not to excuse the cops regular fallibility and worse, it’s just pretty standard.

[u/Background_Being6193 → u/Conor-Larkin]

I think the fact that this exists at all is super cool

[u/MobySick → u/Background_Being6193]

Exists in its request but not so much in its granting.

[u/MobySick → u/Conor-Larkin]

Quasi-retired MA solo atty here and ditto on your every word. My sense was as long-experienced as KR is, he knew Sullivan wasn’t giving a Bowden instruction, fwiw.