FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL
Robert J. Kane, Justice
On December 14, 1987, a jury convicted the defendant, George D. Perrot (" Perrot"), of the unarmed robbery of Mary Prekop, Criminal Action No. 85-5415, the indecent assault and battery of Mary Prekop, Criminal Action No. 85-5416, the aggravated rape of Mary Prekop, Criminal Action No. 85-5418, the burglary and assault of Mary Prekop in a dwelling, Criminal Action No. 85-5420, and the burglary of Emily Lichwala, Criminal Action No. 85-5425. Perrot appealed his convictions and on June 4, 1990, the Supreme Judicial Court reversed the convictions. Commonwealth v. Perrot, 407 Mass. 539, 554 N.E.2d 1205 (1990). On January 9, 1992, a jury convicted Perrot of the same offenses. The Appeals Court denied Perrot's appeal. Commonwealth v. Perrot, 38 Mass.App.Ct. 478, 648 N.E.2d 1315, rev., denied, 420 Mass. 1104, 651 N.E.2d 409 (1995). On April 25, 2000, Perrot filed a Motion for New Trial. On September 11, 2001, the court (Wernick, J.) allowed the motion. On May 12, 2003 the Appeals Court reversed the order allowing the New Trial Motion. Commonwealth v. Perrot, 58 Mass.App.Ct. 1102, 787 N.E.2d 1154 (2003), rev. denied, 441 Mass. 1104, 805 N.E.2d 44 (2004). Perrot filed two more motions for new trials both of which the Appeals Court dismissed for lack of prosecution. On July 8, 2014, Perrot filed his fourth Motion for a New Trial which is now before the court.
After a close review of the assembled record, including transcripts from the defendant's two trials, reviews by the trial court and appellate courts of requests for relief, and the evidence submitted on September 11 and 25, 2015, the court determines that " justice may not have been done" at Perrot's 1992 trial because of the introduction of hair evidence that in numerous and material respects exceeded the foundational science. In making that judgment, the court determines that it was not until decades after Perrot's 1992 trial that errors in testimony on hair evidence came to be authoritatively recognized and addressed. The 2008 National Academy of Science (NAS) report on the limits of hair evidence caused the FBI to audit hair evidence and to determine that Wayne Oakes' testimony at Perrot's 1992 trial contained seven occasions where Oakes exceeded the foundational science.
Based on the findings and rulings, Perrot's Motion for a New Trial is ALLOWED in part and DENIED in part. Specifically, it is ALLOWED as to indictments 85-5415, 85-5416, 85-5418 and 85-5420 and DENIED as to indictment 85-5425.
In the fall of 1985, the Springfield police were investigating a series of house breaks in the Malibu Drive neighborhood. Several of the break-ins involved sexual attacks on elderly women. Perrot, then seventeen years of age, was a suspect in the investigation. Two break-ins occurred on November 30, 1985.
On that date, shortly after 3:00 a.m., Emily Lichwala's (" Lichwala") home at 33 Covel Street was breached. Lichwala awoke to the sound of someone trying to break into her kitchen through a locked door leading to the basement. After a few minutes of silence, Lichwala heard glass shatter near a breezeway door that also led into her kitchen. Lichwala ran outside before encountering the burglar. Her pocketbook had been taken. Lichwala was unable to identify the intruder.
At approximately 4:00 a.m., Mary Prekop's (" Prekop") home at 27 Malibu Drive was breached. Prekop awoke to the sound of her dog barking by the kitchen door and went into her kitchen to investigate. Prekop opened the kitchen door but did not open the door after that which leads to the breezeway. She did not hear or see anything. After sitting in her living room for " a few minutes, " she took a stick and went back to bed. Shortly thereafter, she heard someone come into the house; she took the stick and went to the kitchen to investigate. Prekop encountered the intruder, who pushed her into her bedroom where he struck her, indecently assaulted her, and raped her. Her change purse was taken. Prekop described the man who assaulted her as being clean shaven, with dark wavy hair, and wearing a blue jacket, dark pants, and white sneakers.
A week later, on the evening of December 6, 1985, Perrot drank and took drugs, including cocaine and eight Valium pills. He broke into Joseph McNabb's (" McNabb") house, but ran away when he realized that McNabb and his wife were home. He then stole a woman's purse outside a Denny's restaurant. Around 2:30 a.m. on December 7, 1985, Perrot went to his sister's, Nancy Westcott (" Westcott"), house at 87 Malibu Drive, where he lived, and passed out. A few hours later, the police arrived to arrest him. As he was being escorted to the police cruiser, he tried to escape. He was apprehended hiding in a backyard.
At approximately 4:30 a.m., Sergeant Thomas Kelly (" Sergeant Kelly"), who was in charge of the investigation of the attacks on elderly women, and another officer met with Perrot in an interrogation room. Perrot denied any involvement in the attacks on elderly women. Sergeant Kelly terminated the questioning of Perrot at about 5:30 a.m. to help in the preparation of an affidavit to support an application for a warrant to search Perrot's residence. Perrot at his own request remained in the interrogation room rather than being returned to a cell.
Perrot was interrogated three more times on December 7 by Detective Thomas Jarvis (" Detective Jarvis"), also involved in the investigation of the attacks on elderly women. The interrogations took place at approximately 7:30 a.m., 12:30 p.m., and 3:00 p.m. At the 12:30 p.m. questioning, Perrot signed a form agreeing to furnish the police with blood and hair samples.
Perrot signed a statement admitting to the crimes of the previous evening even though the statement inaccurately identified the purse-snatch as occurring before the break-in.
At the 3:00 p.m. interrogation, Perrot signed a statement admitting to breaking and entering 33 Covel Street and 27 Malibu Drive. Perrot denied any assault. While giving his statement, Perrot became emotional, cried, and asked for Detective Jarvis's gun so he could shoot himself. Detective Jarvis asked that Perrot be placed on a suicide watch.
At 4:30 p.m., Prekop, Lichwala, Mae Marchand, and McNabb came to the police station for a lineup. Perrot had head hair that was on the longer/curlier side and facial hair, including a mustache and a goatee/beard, at the time of the lineup. The lineup consisted of seven men, five of whom were police officers. None of the men in the lineup were clean shaven; all of them had a mustache and Perrot had a mustache and a goatee/beard. Neither Prekop, Lichwala, nor Mae Marchand identified Perrot as their assailant. McNabb positively identified Perrot as his assailant.
During their investigation, the police focused on three pieces of forensic evidence taken from the crime scene at Prekop's house: a bed sheet with blood on it, a pair of gloves with blood on them, and a hair removed from the bed sheet.
On December 2, 1985, a grand jury indicted Perrot for the offenses relating to the November 30, 1985 events.
II. First Trial
At the first trial, presided over by Judge Murphy, James Hammerschmith represented Perrot, and Francis Bloom (" Bloom") represented the Commonwealth.
In his opening statement, Bloom focused the jury's attention on the following pieces of evidence: the bed sheet,  the gloves, Perrot's admission,  and the hair and blood analysis. With respect to the hair analysis, Bloom stated that Wayne Oakes would testify that the two head hairs he analyzed " absolutely are not the head hairs from the head of Miss Prekop, and there are 15 to 25 characteristics in every strand of hair, and . . . every one of those characteristics from those two sample hairs that were found on the bed sheet are identical to every characteristic of the head hair that was pulled from [Perrot]." (Trial Tr. vol. 2, 192.) With respect to the blood analysis, Bloom stated that William Eubanks would testify that the blood on the gloves is consistent with Perrot's blood and that the blood on the bed sheet is " absolutely not [Prekop's], but on every genetic marker and characteristic is consistent with the genetic markers and characteristics [of Perrot]." (Trial Tr. vol. 2, 193-94.)
Prekop testified first for the Commonwealth. She testified that her assailant had his hands over his face, but she saw that he had " wavy hair, black wavy hair, and . . . had white sneakers on." (Trial Tr. vol. 2, 204.) On cross examination, she reiterated that her assailant had black wavy hair and then the following exchange took place:
Q. What did the hair look like? Was it long hair or short hair?
A. No, it was--it wasn't.
Q. Did it look neat?
A. Yes, it looked neat.
Q. Would it be fair to say it looked like he had recently had a haircut?
A. That's right.
Q. And it was fairly short hair?
A. It was on the short side, his hair was . . .
Q. And he was clean shaven, wasn't he?
A. Yeah, he was clean shaven.
Q. Didn't have a beard or moustache?
Q. You're certain of that, aren't you? You're certain that he was clean shaven?
A. Yes, he was clean shaven.
(Trial Tr. vol. 2, 228-30.)
Prekop also testified that about a week or ten days after the assault, she went to the police station for a lineup. (Trial Tr. vol. 2, 233.) Defense counsel then showed her a picture of a group of people but she was unable to identify it as the group of people she saw that day. (Trial Tr. vol. 2, 233-34.) Prekop acknowledged that she looked at a group of people that day and that she told the police that she did not recognize any of that group of people as being the person who broke into her home. (Trial Tr. vol. 2, 235.)
Lichwala testified about the break-in at her house. She testified that she first heard the jolting of the door that leads from her basement to her kitchen; it was like someone was trying to open the door, but could not because it was bolted. (Trial Tr. vol. 2, 242, 243, 246.) She thought she heard footsteps going down the stairs. (Trial Tr. vol. 2, 244.) After a couple of minutes she heard a crash at her back breezeway door that also leads to the kitchen; it sounded like glass shattering. (Trial Tr. vol. 2, 245, 246.) She then heard another crash. (Trial Tr. vol. 2, 245.) She fled the house and never saw the person who broke into her home. (Trial Tr. vol. 2, 248, 259.) When she returned to the house later, she saw broken glass at the breezeway door and window. (Trial Tr. vol. 2, 249-50.) She also saw a pool cue that had been in her basement. (Trial Tr. vol. 2, 253.)
Marianne Popko, a Springfield police officer, testified as to the written statement she took from Prekop on November 30 at approximately 9:00 a.m. (Trial Tr. vol. 3, 94.) In relevant part, Prekop stated:
I can describe the man who broke into my home as a white male, about 20 to 30 years old, he had dark wavy hair and was clean shaven. He was average height and weight. He was wearing a blue jacket, it looked like nylon, and sneakers which were white. He was wearing [a] dark-colored pair of pants, they were neither jeans nor corduroy material. He was not wearing glasses. I didn't notice any jewelry or scars.
(Trial Tr. vol. 3, 96.)
Detective Jarvis testified about Perrot's admission. Specifically, on December 7, 1985 at approximately 7:45 a.m., he gave Perrot his Miranda rights in relation to inquiring about the previous night's crimes. (Trial Tr. vol. 3, 133-34, 163.) Then he took him to be booked. (Trial Tr. vol. 3, 139, 164-65.) At approximately 12:30 p.m., Detective Jarvis met Perrot again, gave him Miranda warnings, and asked him to sign a search warrant waiver to take his hair and blood samples in connection with the Prekop break-in on November 30, 1985. (Trial Tr. vol. 3, 142, 169, 175-76.) Detective Jarvis fed Perrot and let him use the phone; Perrot also went to the bathroom and had coffee. (Trial Tr. vol. 3, 148-49.)
At approximately 3:00 p.m., Detective Jarvis sat down with Perrot to discuss the November 30, 1985 incidents. (Trial Tr. vol. 3, 149.) They talked for an hour and a half and Perrot signed a statement about the incidents. (Trial Tr. vol. 3, 150.) Detective Jarvis testified that Perrot was highly emotional during this time. (Trial Tr. vol. 3, 156, 179.) Sometimes Perrot would cry and sometimes he would shout; at one point, he asked Detective Jarvis for his gun so he could " blow [his] brains out." (Trial Tr. vol. 3, 156, 179-80.) Detective Jarvis gave Perrot Miranda warnings before he signed the statement. (Trial Tr. vol. 3, 155.) After the interview, Detective Jarvis placed Perrot on suicide watch. (Trial Tr. vol. 3, 180.)
Detective Jarvis read Perrot's statement into evidence:
My name is George Perrot, and I live at 87 Malibu Drive, and I am 17 years old. On November 30, 1985, I went to Brattelboro, Vermont, with Mike Edwards and Bob Timmerman and Jeff Atkinson. Mike was driving. We went to a bar called Flat Street. I started drinking about 8:00 p.m., which was a Friday night. We also drank about a case of Bud. I took a purple mescaline on the way to Vermont. We stayed there until about 2:15 a.m. Michael dropped me off about 3:15 a.m. at my house.
I headed for number 33 Covel Street. The reason I went there was I heard it had been broken into before. I had a pair of my sister's gloves on. They were like wool gloves. I entered an unlocked rear breezeway door at 33 Covel Street. I kicked the rear inner door in. I entered the house and started looking through the house. I found a handbag and took it with me. I left through the rear door. I left the pocketbook a few houses down the street.
I left 33 Covel Street and went to 27 Malibu Drive. I opened the door to the breezeway and kicked the side door in. I started to go through the house and a little black dog started barking and I ran out the side door. This occurred about 4:00 a.m. on Saturday, November 30, 1985.
After this I went home. I had been drinking since about 7:00 p.m. that day and had also taken two purple mescaline pills.
(Trial Tr. vol. 3, 160-61.)
On cross examination, Detective Jarvis stated that when he met with Perrot on December 7, Perrot had a beard and a moustache. (Trial Tr. vol. 3, 164.) The booking photograph, which the court admitted into evidence, shows Perrot with a beard, a moustache, and curly hair. (Trial Tr. vol. 3, 165-66.)
Sergeant Kelly testified that at his direction, a pair of knit gloves, a flowered bed sheet, and a pillowcase were taken as evidence from Prekop's house and sent to the FBI Laboratory in Washington, D.C. for analysis. (Trial Tr. vol. 3, 189, 193, 196.) He found the gloves on Prekop's bedroom floor near the bed. (Trial Tr. vol. 3, 196, 197.)
On cross examination, Sergeant Kelly stated that when he saw Perrot on December 7 at 4:30 a.m., he was unkempt and disheveled and had an odor of alcohol about him. (Trial Tr. vol. 3, 218, 219.) At that time, he attempted to question Perrot about the break-ins on November, 30th; Perrot denied any involvement. (Trial Tr. vol. 3, 221.) Sergeant Kelly confirmed that at the lineup Prekop did not identify Perrot as being the person who broke into her home. (Trial Tr. vol. 3, 225-27.)
William Eubanks (" Eubanks"), Unit Chief of the Serology Unit at the FBI Laboratory in Washington, D.C., testified next regarding his analysis of blood stains. Generally, after he determines that a stain is human blood, he attempts to figure out which of the four major blood types it is (i.e., O, A, B, or AB). (Trial Tr. vol. 4, 11-12.) Then he attempts to characterize the stain further, based on twelve to thirteen enzymes or proteins that are commonly present in a dried blood stain. (Trial Tr. vol. 4, 12.) After comparison of two blood stains based on these tests, he could say that an unknown blood stain " could have come from this individual or it could not have come from this individual." (Trial Tr. vol. 4, 12.)
In other words, the analysis is not like a fingerprint. We cannot say that a blood stain on an item came from an individual to the exclusion of everyone in the population. We can only either associate it with that individual as having possibly come from that individual. On the other hand, if it's not consistent, I can say that the blood stain could not have originated from that individual.
(Trial Tr. vol. 4, 12-13.)
Regarding the bed sheet, Eubanks testified that there were two stains on which he conducted tests. (Trial Tr. vol. 4, 17.) On the larger stain, he identified four different genetic markers. (Trial Tr. vol. 4, 18-19, 20.) The first one was the enzyme PGM, of which there are ten possible types. (Trial Tr. vol. 4, 19-21.) He identified the type PGM 1. (Trial Tr. vol. 4, 20-21.) Forty-one percent of the Caucasian population has the PGM 1 enzyme. (Trial Tr. vol. 4, 23.) The second enzyme he identified was EAP, of which there are six major types. (Trial Tr. vol. 4, 23.) He identified EAP BA. (Trial Tr. vol. 4, 23.) Forty-one percent of people would have this enzyme. (Trial Tr. vol. 4, 24.) The third and fourth markers were serum proteins, which are proteins found in the serum fraction of blood. (Trial Tr. vol. 4, 24.) The third marker was Hp or haptoglobin, of which there are four possible types. (Trial Tr. vol. 4, 24.) The type found was haptoglobin 2-1. (Trial Tr. vol. 4, 24.) Forty-eight percent of the Caucasian population has this type. (Trial Tr. vol. 4, 25.) The last marker was Tf or transferrin, of which there are three major types. (Trial Tr. vol. 4, 25.) The type found was transferrin type C. (Trial Tr. vol. 4, 25.) Roughly ninety-nine percent of the Caucasian population has this type. (Trial Tr. vol. 4, 25.)
Eubanks compared the results from the larger blood stain on the bed sheet with the results from the testing of Perrot's blood and found that Perrot is the same type in all four of the markers found on the bed sheet. (Trial Tr. vol. 4, 30.) He also analyzed Prekop's blood and found that while she has the same PGM type as Perrot, she has different EAP, Hp, and Tf. (Trial Tr. vol. 4, 31-32.) This means that the blood stain on the bed sheet " could not have come from Prekop and is consistent and could have come from Perrot." (Trial Tr. vol. 4, 32.)
Regarding the knit gloves, Eubanks testified that he identified one human blood stain on each of the gloves. (Trial Tr. vol. 4, 33.) Because they were small stains, he was only able to run one genetic marker test. (Trial Tr. vol. 4, 33-34.) He found that both blood stains had the PGM 1 marker. (Trial Tr. vol. 4, 34.) Both Perrot and Prekop are PGM 1. (Trial Tr. vol. 4, 34.)
On cross, Eubanks reiterated that he was able to exclude Prekop as the source of the blood on bed sheet but he could not exclude Perrot as the source. (Trial Tr. vol. 4, 51.) He clarified that he was not saying that the blood found on the bed sheet was Perrot's blood; he could not say that the blood came from anyone to the exclusion of all the population. (Trial Tr. vol. 4, 51.)
Finally, Wayne Oakes (" Oakes"), Supervisory Special Agent at the FBI, testified regarding his analysis of hair evidence. He testified that he compares hairs based on characteristics such as the color, the medulla, the cuticle, the cortex, the scales, how the pigment granules are arranged, etc. (Trial Tr. vol. 4, 69-70.) If he sees just one difference in any of these characteristics or how they are arranged along the length of the hair, he will say positively, based on his opinion and experience, that the one hair did not originate from the same source as the other hair. (Trial Tr. vol. 4, 70, 74.) If he sees no differences microscopically between all of the characteristics and the arrangement of the characteristics, he will say that one hair is consistent with having originated from the same source as the other hair; it either originated from the same person or from another person of the same racial group whose hairs exhibit all of the same characteristics arranged in exactly the same way. (Trial Tr. vol. 4, 70.)
Oakes testified that he found a brown Caucasian head hair on the bed sheet that he thought was suitable for comparison purposes. (Trial Tr. vol. 4, 77.) In other words, it contained enough characteristics that he felt comfortable attempting to associate it with a known standard (i.e., Perrot's and Prekop's hair). (Trial Tr. vol. 4, 78, 79, 81.) Oakes stated that the questioned hair from the bed sheet exhibited all of the same characteristics arranged in the same way as the known hair from Perrot; there were no variations whatsoever. (Trial Tr. vol. 4, 80-81.) Further, the questioned hair from the bed sheet was dissimilar from Prekop's hair so the questioned hair did not originate from Prekop. (Trial Tr. vol. 4, 81.)
When asked if there were any variations between Perrot's head hair and the questioned hair from the bed sheet, Oakes reiterated that
there were no significant differences in any of the microscopic characteristics or the arrangement of those characteristics between the questioned hair from the sheet and the known hair standards from Perrot.
(Trial Tr. vol. 4, 85.) Oakes concluded that the questioned hair was consistent with having originated from Perrot. (Trial Tr. vol. 4, 85, 112.)
On cross, Oakes stated again that the hair " is either consistent or originated from Mr. Perrot or another individual of the same race whose hairs exhibit all of the same characteristics and arranged in the same way." (Trial Tr. vol. 4, 86.) When asked whether it could have been Perrot's hair or it could have been someone else's hair, Oakes answered:
I can't answer that question with a yes or no. I can't say that that hair could come from someone else, because I would have to have that person's hair and I would have to examine it microscopically, and that also would have to match Mr. Perrot's known standard and the questioned hair. I can't discount the possibility that there is someone else whose hairs exhibit all of these same microscopic characteristics, because I haven't examined everybody in the world's hairs and compared it with their hair standard so I can't discount that possibility, but I do not know that that person even exists.
(Trial Tr. vol. 4, 86-87.)
Also on cross, Oakes acknowledged that hair comparison does not constitute a basis for positive personal identification, that is, it is not like fingerprint analysis. (Trial Tr. vol. 4, 87.) Oakes also admitted that it is possible for different people to have hairs that match microscopically and that every person probably has hairs on their head that might vary from another hair on their head. (Trial Tr. vol. 4, 87, 107.) Defense counsel asked Oakes what he meant when he said Perrot's hair was consistent with the hair found on the bed sheet. (Trial Tr. vol. 4, 87-88.) Oakes responded:
To me, hair associations are the basis of strong association, based on my experience. In the six years at the laboratory, I have worked thousands of cases involving thousands of known hair standards, so when I do in fact associate a questioned hair with a known hair standard, in my opinion, it forms a basis of a strong association, because very rarely do I see known samples from two people that are so alike that I cannot tell them apart, so it is more than just I can't exclude him; I feel reasonably strong about that association or I wouldn't be testifying to it.
(Trial Tr. vol. 4, 88.)
The Commonwealth rested after Oakes's testimony and then the defense called Westcott to testify. On cross examination the following exchanged occurred after Bloom asked Westcott about a police visit to her house on December 7, 1985:
Q. And he said to you, " Ma'am, do you have a pair of gloves that look just like those, " didn't he?
A. Something to that effect, yes.
Q. And you turned and you went to a closet or an area of your house where you kept a pair of gloves that looked just like these, isn't that correct?
A. No, that's not correct.
Q. That's not correct?
Q. You never told Sergeant Kelly of the Springfield Police Department that you had a pair of gloves that looked just like these?
A. No, I did not.
Q. You never went to a closet area in your house and said, " I know they're up there, I just saw them a few weeks ago. Here's where I keep them and they're not here" ?
A. No, I did not.
Q. You never said that?
A. No, I did not.
Q. Did you own a pair of gloves in 1985 that looked like these?
A. No, I did not.
(Trial Tr. vol. 5, 6 1-62.) On redirect, Westcott stated that she told Sergeant Kelly that the gloves were not hers, but that they looked familiar because she thought they were George's girlfriend's gloves. (Trial Tr. vol. 5, 72.)
Perrot testified. He stated that he did not remember signing the statement admitting to the November 30 crimes. (Trial Tr. vol. 5, 92-93, 110-11, 119.) On cross, he admitted to telling the police everything in the statement leading up to the " I headed for 33 Covel Street" sentence. (Trial Tr. vol. 5, 114-15.) He denied providing the rest of the statement to the police. (Trial Tr. vol. 5, 115-17.)
The Commonwealth recalled Sergeant Kelly who testified that when he showed Westcott the gloves, she said she had a pair just like them but when she went to look for them they were not there. (Trial Tr. vol. 5, 137-13 8.)
In his closing, Bloom stated that Perrot's admission is " the most important piece of evidence in the case" because " he puts himself right in the home at about the exact time period that these incidents occurred." (Trial Tr. vol. 6, 54.) Additionally, he stated,
Do you find it unusual that a seventeen-year-old kid could admit to kicking the door in, but not being able to admit to raping a 78-year-old woman? What is so unusual about that? It's one thing to say you kicked the door in, it's another thing to say I raped a 78-year-old woman in her home at 3:00 in the morning.
(Trial Tr. vol. 6, 54.)
Bloom also stressed that Perrot's sister identified the gloves found by Sergeant Kelly in Prekop's bedroom. (Trial Tr. vol. 6, 62-63, 71.)
With respect to Oakes and Eubanks, Bloom stated the following:
Why is [the hair found on the bed] so important? It is so much more important than it could be under a different set of circumstances, because you have a woman that lives alone, so if it's not her hair in her bedroom, there is no other human that is sleeping in that bedroom beside her. She told you that. It's got to be the perpetrator's hair.
She also indicated to you that no one has been in that house, sleeping, for six or eight years, however long it's been since her mother died. What does that indicate to you? Off of the same bed sheet the blood has to be the perpetrator's blood . . .
[Defense counsel asked] [n]ow, as you cut those two hairs and took Mr. Perrot's and the head hair found off the sheet, the appearance this gives is that it meshed with all characteristics into one head hair that couldn't be distinguished, every characteristic in reference to [the questioned hair] was identical and meshed right into every characteristic of the head hair that you mounted and put under a microscope and magnified to four hundred times its normal size?
Do you remember what his answer was? That is exactly what I'm telling you. Fifteen to 25 characteristics. Fifteen to 25 characteristics.
He told you about the cortex, the medulla, told you about the pigmentation and the grouping of the pigmentation, and a number of other variables that are determined and looked at by a person who is an expert in this field. And that his head hair was identical in every single characteristic to the characteristics from the head hair taken off that sheet.
And if that wasn't enough, William Eubanks testified. Ladies and gentlemen, take a look at what he said. Now, I'd be the first to agree with you and to agree with the defendant that that wouldn't have been a big piece of evidence if in our society, for instance, hypothetically, let's say type O blood there are 80 or 85 percent Caucasian population, and an expert comes in and says it's type O blood, George Perrot is type O. I mean, so what? If you did a random sampling, if you picked any hundred people, Caucasians, you'd expect to find around 85 or so that had that blood type. That really wouldn't be anything that would cause you fairly and objectively to be able to direct your attention toward the defendant. That wouldn't be fair. That's not the evidence in this case.
In reference to proteins and enzymes, genetic markers, there are ten. Based on the size of a given blood stain, you may not be able to raise any of them. If it's a sufficient enough size blood stain, you may under ideal circumstances be able to raise ten of them. In this case, based on the blood stain and it's size, the quantity of the blood, you have an expert that is able to raise four genetic markers. He told you what those are, just proteins or enzymes that we have that make up our blood. Four of them.
And the reason that this is so crucially important is that for PGM, which is the first one we talked about, there are ten alternatives. PGM is just one of them. There's nine others. What are the two important things in reference to that? That if Perrot was any of the other nine other than , you don't have to go any farther, that is the end of it, it isn't his blood, and that six out of ten, if you did it randomly, 59 percent of the male or the Caucasian population have other than PGM . If he is any of these 59 percent or any of the nine other alternatives other than , that is the end of it, it isn't his blood.
EAP. Six possibilities. BA is the one that is found by Mr. Eubanks. Again, about 60 percent of the population, 59 percent of the Caucasian population have other than that strain of EAP, the BA. If he has any of these other five other than the strain found, that is the end of it, it's not George Perrot's blood.
Hp 2-1. There are three other alternatives other than 2-1. Over half of the Caucasian population, approximately 52 percent, have other than 2-1. If he is any of those 5 percent [sic] or if he has any of the other three other than this specific strain, that is the end of it. The first three strains, over half of the population.
Fifty-nine percent in the first two and about 52 percent in the third have other than this particular strain, and if he doesn't have it exactly on those three, that is the end.
And in reference to the last one, certainly the most common, but there are three alternatives. If he has other than this strain, of which, incidentally, Mary Prekop did, she didn't have strain C, then it's not George Perrot's blood.
When this stain was raised, ladies and gentlemen, there were 23 possibilities that could be found by Eubanks. Twenty-three. Ten in reference to PGM, six in reference to EAP, four in reference to Hp, and three in reference to Tf. And out of those 23 alternatives, there are four that were found. If he has any of the other nineteen in reference to these four strains, it's not his blood. Pretty significant piece of evidence.
(Trial Tr. vol. 6, 64-70.)
On December 14, 1987, a jury convicted Perrot of aggravated rape, burglary and assault in a dwelling, unarmed robbery, indecent assault and battery, and burglary.
At the first trial, the Commonwealth had sought to introduce a statement made by Perrot regarding the location of Lichwala's purse. Judge Murphy suppressed the statement, finding that it was obtained in violation of Perrot's right to counsel. Judge Murphy, however, allowed the Commonwealth to introduce the purse as evidence under the inevitable discovery rule.
Perrot appealed and claimed that Judge Murphy erred in (1) denying his pretrial motion to suppress oral and written statements made by him to the Springfield police, and (2) admitting into evidence Lichwala's purse under the inevitable discovery rule. On June 4, 1990, the Supreme Judicial Court set aside the verdicts and remanded the case for a new trial. Commonwealth v. Perrot, 407 Mass. 539, 554 N.E.2d 1205 (1990). While the Court determined that the record demonstrated a sufficient factual and legal basis for the denial of the motion to suppress, the Court concluded that purse should not have been admitted into evidence because the police acquired it as a result of a statement by Perrot in violation of his right to counsel.
In holding that Perrot was prejudiced by the error, the court stated:
There were no identifications of the defendant by the victims. Both the fact, and the validity, of his statements to the police were strenuously denied by the defendant in his testimony at the trial. The defendant also denied throughout that he was involved in any sexual attacks on women.
Perrot, 407 Mass. at 549.
IV. Second Trial
In January of 1992, the Commonwealth retried Perrot for the November 30 crimes. Judge Simons presided, Brett Vottero (" Vottero") represented the Commonwealth, and John Ferrara (" Ferrara") represented Perrot.
In his opening statement, Vottero stated that Perrot " left something behind" at Prekop's house. (Trial Tr. vol. 1, 107.) " He left some of his hair and left some of his blood. And he left a pair of gloves, mittens that belonged to his sister." (Trial Tr. vol. 1, 107.) With respect to the hair, Vottero told the jury that an FBI analyst would testify that the hair found was consistent with Perrot's hair. (Trial Tr. vol. 1, 107.) With respect to the bed sheet, Vottero stated that the jury would hear
testimony about what the characteristics are that are in common with George Perrot's blood and the blood on the bed sheets. You'll know that Mary Prekop could not have been the person who ...